Coronavirus State and Local Fiscal Recovery Funds, 26786-26824 [2021-10283]

Download as PDF 26786 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations DEPARTMENT OF THE TREASURY 31 CFR Part 35 RIN 1505–AC77 Coronavirus State and Local Fiscal Recovery Funds Department of the Treasury. Interim final rule. AGENCY: ACTION: The Secretary of the Treasury (Treasury) is issuing this interim final rule to implement the Coronavirus State Fiscal Recovery Fund and the Coronavirus Local Fiscal Recovery Fund established under the American Rescue Plan Act. DATES: Effective date: The provisions in this interim final rule are effective May 17, 2021. Comment date: Comments must be received on or before July 16, 2021. ADDRESSES: Please submit comments electronically through the Federal eRulemaking Portal: https:// www.regulations.gov. Comments can be mailed to the Office of the Undersecretary for Domestic Finance, Department of the Treasury, 1500 Pennsylvania Avenue NW, Washington, DC 20220. Because postal mail may be subject to processing delay, it is recommended that comments be submitted electronically. All comments should be captions with ‘‘Coronavirus State and Local Fiscal Recovery Funds Interim Final Rule Comments.’’ Please include your name, organization affiliation, address, email address and telephone number in your comment. Where appropriate, a comment should include a short executive summary. In general, comments received will be posted on https://www.regulations.gov without change, including any business or personal information provided. Comments received, including attachments and other supporting materials, will be part of the public record and subject to public disclosure. Do not enclose any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure. FOR FURTHER INFORMATION CONTACT: Katharine Richards, Senior Advisor, Office of Recovery Programs, Department of the Treasury, (844) 529– 9527. SUPPLEMENTARY INFORMATION: SUMMARY: I. Background Information A. Overview Since the first case of coronavirus disease 2019 (COVID–19) was discovered in the United States in January 2020, the disease has infected VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 over 32 million and killed over 575,000 Americans.1 The disease has impacted every part of life: As social distancing became a necessity, businesses closed, schools transitioned to remote education, travel was sharply reduced, and millions of Americans lost their jobs. In April 2020, the national unemployment rate reached its highest level in over seventy years following the most severe month-over-month decline in employment on record.2 As of April 2021, there were still 8.2 million fewer jobs than before the pandemic.3 During this time, a significant share of households have faced food and housing insecurity.4 Economic disruptions impaired the flow of credit to households, State and local governments, and businesses of all sizes.5 As businesses weathered closures and sharp declines in revenue, many were forced to shut down, especially small businesses.6 Amid this once-in-a-century crisis, State, territorial, Tribal, and local governments (State, local, and Tribal governments) have been called on to respond at an immense scale. Governments have faced myriad needs to prevent and address the spread of 1 Centers for Disease Control and Prevention, COVID Data Tracker, https://www.covid.cdc.gov/ covid-data-tracker/#datatracker-home (last visited May 8, 2021). 2 U.S. Bureau of Labor Statistics, Unemployment Rate [UNRATE], retrieved from FRED, Federal Reserve Bank of St. Louis; https:// fred.stlouisfed.org/series/UNRATE, May 3, 2021. U.S. Bureau of Labor Statistics, Employment Level [LNU02000000], retrieved from FRED, Federal Reserve Bank of St. Louis; https:// fred.stlouisfed.org/series/LNU02000000, May 3, 2021. 3 U.S. Bureau of Labor Statistics, All Employees, Total Nonfarm [PAYEMS], retrieved from FRED, Federal Reserve Bank of St. Louis; https:// fred.stlouisfed.org/series/PAYEMS, May 7, 2021. 4 Nirmita Panchal et al., The Implications of COVID–19 for Mental Health and Substance Abuse (Feb. 10, 2021), https://www.kff.org/coronaviruscovid-19/issue-brief/the-implications-of-covid-19for-mental-health-and-substance-use/#:∼:text= Older%20adults%20are%20also%20 more,prior%20to%20the%20current%20crisis; U.S. Census Bureau, Household Pulse Survey: Measuring Social and Economic Impacts during the Coronavirus Pandemic, https://www.census.gov/ programs-surveys/household-pulse-survey.html (last visited Apr. 26, 2021); Rebecca T. Leeb et al., Mental Health-Related Emergency Department Visits Among Children Aged <18 Years During the COVID Pandemic—United States, January 1— October 17, 2020, Morb. Mortal. Wkly. Rep. 69(45):1675–80 (Nov. 13, 2020), https:// www.cdc.gov/mmwr/volumes/69/wr/ mm6945a3.htm. 5 Board of Governors of the Federal Reserve System, Monetary Policy Report (June 12, 2020), https://www.federalreserve.gov/monetarypolicy/ 2020-06-mpr-summary.htm. 6 Joseph R. Biden, Remarks by President Biden on Helping Small Businesses (Feb. 22, 2021), https:// www.whitehouse.gov/briefing-room/speechesremarks/2021/02/22/remarks-by-president-bidenon-helping-small-businesses/. PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 COVID–19, including testing, contact tracing, isolation and quarantine, public communications, issuance and enforcement of health orders, expansions to health system capacity like alternative care facilities, and in recent months, a massive nationwide mobilization around vaccinations. Governments also have supported major efforts to prevent COVID–19 spread through safety measures in settings like nursing homes, schools, congregate living settings, dense worksites, incarceration settings, and public facilities. The pandemic’s impacts on behavioral health, including the toll of pandemic-related stress, have increased the need for behavioral health resources. At the same time, State, local and Tribal governments launched major efforts to address the economic impacts of the pandemic. These efforts have been tailored to the needs of their communities and have included expanded assistance to unemployed workers; food assistance; rent, mortgage, and utility support; cash assistance; internet access programs; expanded services to support individuals experiencing homelessness; support for individuals with disabilities and older adults; and assistance to small businesses facing closures or revenue loss or implementing new safety measures. In responding to the public health emergency and its negative economic impacts, State, local, and Tribal governments have seen substantial increases in costs to provide these services, often amid substantial declines in revenue due to the economic downturn and changing economic patterns during the pandemic.7 Facing these budget challenges, many State, local, and Tribal governments have been forced to make cuts to services or their workforces, or delay critical investments. From February to May of 2020, State, local, and Tribal governments reduced their workforces by more than 1.5 million jobs and, in April of 2021, State, local, and Tribal government employment remained nearly 1.3 million jobs below prepandemic levels.8 These cuts to State, local, and Tribal government workforces 7 Michael Leachman, House Budget Bill Provides Needed Fiscal Aid for States, Localities, Tribal Nations, and Territories (Feb. 10, 2021), https:// www.cbpp.org/research/state-budget-and-tax/ house-budget-bill-provides-needed-fiscal-aid-forstates-localities. 8 U.S. Bureau of Labor Statistics, All Employees, State Government [CES9092000001] and All Employees, Local Government [CES9093000001], retrieved from FRED, Federal Reserve Bank of St. Louis, https://fred.stlouisfed.org/series/ CES9092000001 and https://fred.stlouisfed.org/ series/CES9093000001 (last visited May 8, 2021). E:\FR\FM\17MYR2.SGM 17MYR2 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations come at a time when demand for government services is high, with State, local, and Tribal governments on the frontlines of fighting the pandemic. Furthermore, State, local, and Tribal government austerity measures can hamper overall economic growth, as occurred in the recovery from the Great Recession.9 Finally, although the pandemic’s impacts have been widespread, both the public health and economic impacts of the pandemic have fallen most severely on communities and populations disadvantaged before it began. Lowincome communities, people of color, and Tribal communities have faced higher rates of infection, hospitalization, and death,10 as well as higher rates of unemployment and lack of basic necessities like food and housing.11 Preexisting social vulnerabilities magnified the pandemic in these communities, where a reduced ability to work from home and, frequently, denser housing amplified the risk of infection. Higher rates of pre-existing health conditions also may have contributed to more severe COVID–19 health outcomes.12 Similarly, communities or households facing economic insecurity before the pandemic were less able to weather business closures, job losses, or declines in earnings and were less able to participate in remote work or education due to the inequities in access to reliable and affordable broadband infrastructure.13 Finally, though schools in all areas faced challenges, those in high poverty areas had fewer resources to adapt to remote and hybrid learning models.14 Unfortunately, the pandemic 9 Tracy Gordon, State and Local Budgets and the Great Recession, Brookings Institution (Dec. 31, 2012), https://www.brookings.edu/articles/state-andlocal-budgets-and-the-great-recession. 10 Sebastian D. Romano et al., Trends in Racial and Ethnic Disparities in COVID–19 Hospitalizations, by Region—United States, March– December 2020, MMWR Morb Mortal Wkly Rep 2021, 70:560–565 (Apr. 16, 2021), https:// www.cdc.gov/mmwr/volumes/70/wr/ mm7015e2.htm?s_cid=mm7015e2_w. 11 Center on Budget and Policy Priorities, Tracking the COVID–19 Recession’s Effects on Food, Housing, and Employment Hardships, https://www.cbpp.org/research/poverty-andinequality/tracking-the-covid-19-recessions-effectson-housing-and (last visited May 4, 2021). 12 Lisa R. Fortuna et al., Inequity and the Disproportionate Impact of COVID–19 on Communities of Color in the United States: The Need for Trauma-Informed Social Justice Response, Psychological Trauma Vol. 12(5):443–45 (2020), available at https://psycnet.apa.org/fulltext/202037320-001.pdf. 13 Emily Vogles et al., 53% of Americans Say the internet Has Been Essential During the COVID–19 Outbreak (Apr. 30, 2020), https:// www.pewresearch.org/internet/2020/04/30/53-ofamericans-say-the-internet-has-been-essentialduring-the-covid-19-outbreak/. 14 Emma Dorn et al., COVID–19 and student learning in the United States: The hurt could last VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 also has reversed many gains made by communities of color in the prior economic expansion.15 B. The Statute and Interim Final Rule On March 11, 2021, the American Rescue Plan Act (ARPA) was signed into law by the President.16 Section 9901 of ARPA amended Title VI of the Social Security Act 17 (the Act) to add section 602, which establishes the Coronavirus State Fiscal Recovery Fund, and section 603, which establishes the Coronavirus Local Fiscal Recovery Fund (together, the Fiscal Recovery Funds).18 The Fiscal Recovery Funds are intended to provide support to State, local, and Tribal governments (together, recipients) in responding to the impact of COVID–19 and in their efforts to contain COVID– 19 on their communities, residents, and businesses. The Fiscal Recovery Funds build on and expand the support provided to these governments over the last year, including through the Coronavirus Relief Fund (CRF).19 a lifetime (June 2020), https:// webtest.childrensinstitute.net/sites/default/files/ documents/COVID-19-and-student-learning-in-theUnited-States_FINAL.pdf; Andrew Bacher-Hicks et al., Inequality in Household Adaptation to Schooling Shocks: Covid-Induced Online Engagement in Real Time, J. of Public Econ. Vol. 193(C) (July 2020), available at https:// www.nber.org/papers/w27555. 15 See, e.g., Tyler Atkinson & Alex Richter, Pandemic Disproportionately Affects Women, Minority Labor Force Participation, https:// www.dallasfed.org/research/economics/2020/1110 (last visited May 9, 2021); Jared Bernstein & Janelle Jones, The Impact of the COVID19 Recession on the Jobs and Incomes of Persons of Color, https:// www.cbpp.org/sites/default/files/atoms/files/6-220bud_0.pdf (last visited May 9, 2021). 16 American Rescue Plan Act of 2021 (ARPA), sec. 9901, Public Law 117–2, codified at 42 U.S.C. 802 et seq. The term ‘‘state’’ as used in this SUPPLEMENTARY INFORMATION and defined in section 602 of the Act means each of the 50 States and the District of Columbia. The term ‘‘territory’’ as used in this SUPPLEMENTARY INFORMATION and defined in section 602 of the Act means the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, the Commonwealth of Northern Mariana Islands, and American Samoa. Tribal government is defined in the Act and the interim final rule to mean ‘‘the recognized governing body of any Indian or Alaska Native tribe, band, nation, pueblo, village, community, component band, or component reservation, individually identified (including parenthetically) in the list published most recently as of the date of enactment of the [American Rescue Plan Act] pursuant to section 104 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5131).’’ See section 602(g)(7) of the Social Security Act, as added by the American Rescue Plan Act. On January 29, 2021, the Bureau of Indian Affairs published a current list of 574 Tribal entities. See 86 FR 7554, January 29, 2021. The term ‘‘local governments’’ as used in this SUPPLEMENTARY INFORMATION includes metropolitan cities, counties, and nonentitlement units of local government. 17 42 U.S.C. 801 et seq. 18 Sections 602, 603 of the Act. 19 The CRF was established by the section 601 of the Act as added by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Public Law 116–136, 134 Stat. 281 (2020). PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 26787 Through the Fiscal Recovery Funds, Congress provided State, local, and Tribal governments with significant resources to respond to the COVID–19 public health emergency and its economic impacts through four categories of eligible uses. Section 602 and section 603 contain the same eligible uses; the primary difference between the two sections is that section 602 establishes a fund for States, territories, and Tribal governments and section 603 establishes a fund for metropolitan cities, nonentitlement units of local government, and counties. Sections 602(c)(1) and 603(c)(1) provide that funds may be used: (a) To respond to the public health emergency or its negative economic impacts, including assistance to households, small businesses, and nonprofits, or aid to impacted industries such as tourism, travel, and hospitality; (b) To respond to workers performing essential work during the COVID–19 public health emergency by providing premium pay to eligible workers; (c) For the provision of government services to the extent of the reduction in revenue due to the COVID–19 public health emergency relative to revenues collected in the most recent full fiscal year prior to the emergency; and (d) To make necessary investments in water, sewer, or broadband infrastructure. In addition, Congress clarified two types of uses which do not fall within these four categories. Sections 602(c)(2)(B) and 603(c)(2) provide that these eligible uses do not include, and thus funds may not be used for, depositing funds into any pension fund. Section 602(c)(2)(A) also provides, for States and territories, that the eligible uses do not include ‘‘directly or indirectly offset[ting] a reduction in the net tax revenue of [the] State or territory resulting from a change in law, regulation, or administrative interpretation.’’ The ARPA provides a substantial infusion of resources to meet pandemic response needs and rebuild a stronger, more equitable economy as the country recovers. First, payments from the Fiscal Recovery Funds help to ensure that State, local, and Tribal governments have the resources needed to continue to take actions to decrease the spread of COVID–19 and bring the pandemic under control. Payments from the Fiscal Recovery Funds may also be used by recipients to provide support for costs incurred in addressing public health and economic challenges resulting from the pandemic, including resources to offer premium pay to essential workers, in recognition of their sacrifices over the E:\FR\FM\17MYR2.SGM 17MYR2 26788 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations last year. Recipients may also use payments from the Fiscal Recovery Funds to replace State, local, and Tribal government revenue lost due to COVID– 19, helping to ensure that governments can continue to provide needed services and avoid cuts or layoffs. Finally, these resources lay the foundation for a strong, equitable economic recovery, not only by providing immediate economic stabilization for households and businesses, but also by addressing the systemic public health and economic challenges that may have contributed to more severe impacts of the pandemic among low-income communities and people of color. Within the eligible use categories outlined in the Fiscal Recovery Funds provisions of ARPA, State, local, and Tribal governments have flexibility to determine how best to use payments from the Fiscal Recovery Funds to meet the needs of their communities and populations. The interim final rule facilitates swift and effective implementation by establishing a framework for determining the types of programs and services that are eligible under the ARPA along with examples of uses that State, local, and Tribal governments may consider. These uses build on eligible expenditures under the CRF, including some expansions in eligible uses to respond to the public health emergency, such as vaccination campaigns. They also reflect changes in the needs of communities, as evidenced by, for example, nationwide data demonstrating disproportionate impacts of the COVID–19 public health emergency on certain populations, geographies, and economic sectors. The interim final rule takes into consideration these disproportionate impacts by recognizing a broad range of eligible uses to help States, local, and Tribal governments support the families, businesses, and communities hardest hit by the COVID–19 public health emergency. Implementation of the Fiscal Recovery Funds also reflect the importance of public input, transparency, and accountability. Treasury seeks comment on all aspects of the interim final rule and, to better facilitate public comment, has included specific questions throughout this SUPPLEMENTARY INFORMATION. Treasury encourages State, local, and Tribal governments in particular to provide feedback and to engage with Treasury regarding issues that may arise regarding all aspects of this interim final rule and Treasury’s work in administering the Fiscal Recovery Funds. In addition, the interim final rule establishes certain regular reporting VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 requirements, including by requiring State, local, and Tribal governments to publish information regarding uses of Fiscal Recovery Funds payments in their local jurisdiction. These reporting requirements reflect the need for transparency and accountability, while recognizing and minimizing the burden, particularly for smaller local governments. Treasury urges State, territorial, Tribal, and local governments to engage their constituents and communities in developing plans to use these payments, given the scale of funding and its potential to catalyze broader economic recovery and rebuilding. II. Eligible Uses A. Public Health and Economic Impacts Sections 602(c)(1)(A) and 603(c)(1)(A) provide significant resources for State, territorial, Tribal governments, and counties, metropolitan cities, and nonentitlement units of local governments (each referred to as a recipient) to meet the wide range of public health and economic impacts of the COVID–19 public health emergency. These provisions authorize the use of payments from the Fiscal Recovery Funds to respond to the public health emergency with respect to COVID–19 or its negative economic impacts. Section 602 and section 603 also describe several types of uses that would be responsive to the impacts of the COVID– 19 public health emergency, including assistance to households, small businesses, and nonprofits and aid to impacted industries, such as tourism, travel, and hospitality.20 Accordingly, to assess whether a program or service is included in this category of eligible uses, a recipient should consider whether and how the use would respond to the COVID–19 public health emergency. Assessing whether a program or service ‘‘responds to’’ the COVID–19 public health emergency requires the recipient to, first, identify a need or negative impact of the COVID–19 public health emergency and, second, identify how the program, service, or other intervention addresses the identified need or impact. While the COVID–19 public health emergency affected many aspects of American life, eligible uses under this category must be in response to the disease itself or the harmful consequences of the economic disruptions resulting from or exacerbated by the COVID–19 public health emergency. 20 Sections PO 00000 602(c)(1)(A), 603(c)(1)(A) of the Act. Frm 00004 Fmt 4701 Sfmt 4700 The interim final rule implements these provisions by identifying a nonexclusive list of programs or services that may be funded as responding to COVID–19 or the negative economic impacts of the COVID–19 public health emergency, along with considerations for evaluating other potential uses of the Fiscal Recovery Funds not explicitly listed. The interim final rule also provides flexibility for recipients to use payments from the Fiscal Recovery Funds for programs or services that are not identified on these non-exclusive lists but that fall under the terms of section 602(c)(1)(A) or 603(c)(1)(A) by responding to the COVID–19 public health emergency or its negative economic impacts. As an example, in determining whether a program or service responds to the negative economic impacts of the COVID–19 public health emergency, the interim final rule provides that payments from the Fiscal Recovery Funds should be designed to address an economic harm resulting from or exacerbated by the public health emergency. Recipients should assess the connection between the negative economic harm and the COVID–19 public health emergency, the nature and extent of that harm, and how the use of this funding would address such harm. As discussed, the pandemic and the necessary actions taken to control the spread had a severe impact on households and small businesses, including in particular low-income workers and communities and people of color. While eligible uses under sections 602(c)(1)(A) and 603(c)(1)(A) provide flexibility to recipients to identify the most pressing local needs, Treasury encourages recipients to provide assistance to those households, businesses, and non-profits in communities most disproportionately impacted by the pandemic. 1. Responding to COVID–19 On January 21, 2020, the Centers for Disease Control and Prevention (CDC) identified the first case of novel coronavirus in the United States.21 By late March, the virus had spread to many States and the first wave was growing rapidly, centered in the northeast.22 This wave brought acute 21 Press Release, Centers for Disease Control and Prevention, First Travel-related Case of 2019 Novel Coronavirus Detected in United States (Jan. 21, 2020), https://www.cdc.gov/media/releases/2020/ p0121-novel-coronavirus-travel-case.html. 22 Anne Schuchat et al., Public Health Response to the Initiation and Spread of Pandemic COVID– 19 in the United States, February 24–April 21, 2021, MMWR Morb Mortal Wkly Rep 2021, 69(18):551– 56 (May 8, 2021), https://www.cdc.gov/mmwr/ volumes/69/wr/mm6918e2.htm. E:\FR\FM\17MYR2.SGM 17MYR2 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations strain on health care and public health systems: Hospitals and emergency medical services struggled to manage a major influx of patients; response personnel faced shortages of personal protective equipment; testing for the virus was scarce; and congregate living facilities like nursing homes and prisons saw rapid spread. State, local, and Tribal governments mobilized to support the health care system, issue public health orders to mitigate virus spread, and communicate safety measures to the public. The United States has since faced at least two additional COVID–19 waves that brought many similar challenges: The second in the summer, centered in the south and southwest, and a wave throughout the fall and winter, in which the virus reached a point of uncontrolled spread across the country and over 3,000 people died per day.23 By early May 2021, the United States has experienced over 32 million confirmed COVID–19 cases and over 575,000 deaths.24 Mitigating the impact of COVID–19, including taking actions to control its spread and support hospitals and health care workers caring for the sick, continues to require a major public health response from State, local and Tribal governments. New or heightened public health needs include COVID–19 testing, major expansions in contact tracing, support for individuals in isolation or quarantine, enforcement of public health orders, new public communication efforts, public health surveillance (e.g., monitoring case trends and genomic sequencing for variants), enhancement to health care capacity through alternative care facilities, and enhancement of public health data systems to meet new demands or scaling needs. State, local, and Tribal governments have also supported major efforts to prevent COVID–19 spread through safety measures at key settings like nursing homes, schools, congregate living settings, dense worksites, incarceration settings, and in other public facilities. This has included implementing infection prevention measures or making ventilation improvements in congregate settings, health care settings, or other key locations. Other response and adaptation costs include capital investments in public facilities to meet pandemic operational 23 Centers for Disease Control and Prevention, COVID Data Tracker: Trends in Number of COVID–19 Cases and Deaths in the US Reported to CDC, by State/Territory, https://covid.cdc.gov/ covid-data-tracker/#trends_dailytrendscases (last visited May 8, 2021). 24 Id. VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 needs, such as physical plant improvements to public hospitals and health clinics or adaptations to public buildings to implement COVID–19 mitigation tactics. In recent months, State, local, and Tribal governments across the country have mobilized to support the national vaccination campaign, resulting in over 250 million doses administered to date.25 The need for public health measures to respond to COVID–19 will continue in the months and potentially years to come. This includes the continuation of the vaccination campaign for the general public and, if vaccinations are approved for children in the future, eventually for youths. This also includes monitoring the spread of COVID–19 variants, understanding the impact of these variants (especially on vaccination efforts), developing approaches to respond to those variants, and monitoring global COVID–19 trends to understand continued risks to the United States. Finally, the long-term health impacts of COVID–19 will continue to require a public health response, including medical services for individuals with ‘‘long COVID,’’ and research to understand how COVID–19 impacts future health needs and raises risks for the millions of Americans who have been infected. Other areas of public health have also been negatively impacted by the COVID–19 pandemic. For example, in one survey in January 2021, over 40 percent of American adults reported symptoms of depression or anxiety, up from 11 percent in the first half of 2019.26, The proportion of children’s emergency department visits related to mental health has also risen noticeably.27 Similarly, rates of substance misuse and overdose deaths have spiked: Preliminary data from the CDC show a nearly 30 percent increase in drug overdose mortality from September 2019 to September 2020.28 Stay-at-home orders and other pandemic responses may have also reduced the ability of individuals affected by domestic violence to access 25 Centers for Disease Control and Prevention, COVID Data Tracker: COVID–19 Vaccinations in the United States, https://covid.cdc.gov/covid-datatracker/#vaccinations (last visited May 8, 2021). ´ . Czeisler et al., 26 Panchal, supra note 4; Mark E Mental Health, Substance Abuse, and Suicidal Ideation During COVID–19 Pandemic– United States, June 24–30 2020, Morb. Mortal. Wkly. Rep. 69(32):1049–57 (Aug. 14, 2020), https:// www.cdc.gov/mmwr/volumes/69/wr/ mm6932a1.htm. 27 Leeb, supra note 4. 28 Centers for Disease Prevention and Control, National Center for Health Statistics, Provisional Drug Overdose Death Counts, https://www.cdc.gov/ nchs/nvss/vsrr/drug-overdose-data.htm (last visited May 8, 2021). PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 26789 services.29 Finally, some preventative public health measures like childhood vaccinations have been deferred and potentially forgone.30 While the pandemic affected communities across the country, it disproportionately impacted some demographic groups and exacerbated health inequities along racial, ethnic, and socioeconomic lines.31 The CDC has found that racial and ethnic minorities are at increased risk for infection, hospitalization, and death from COVID–19, with Hispanic or Latino and Native American or Alaska Native patients at highest risk.32 Similarly, low-income and socially vulnerable communities have seen the most severe health impacts. For example, counties with high poverty rates also have the highest rates of infections and deaths, with 223 deaths per 100,000 compared to the U.S. average of 175 deaths per 100,000, as of May 2021.33 Counties with high social vulnerability, as measured by factors such as poverty and educational attainment, have also fared more poorly than the national average, with 211 deaths per 100,000 as of May 2021.34 29 Megan L. Evans, et al., A Pandemic within a Pandemic—Intimate Partner Violence during Covid–19, N. Engl. J. Med. 383:2302–04 (Dec. 10, 2020), available at https://www.nejm.org/doi/full/ 10.1056/NEJMp2024046. 30 Jeanne M. Santoli et al., Effects of the COVID–19 Pandemic on Routine Pediatric Vaccine Ordering and Administration—United States, Morb. Mortal. Wkly. Rep. 69(19):591–93 (May 8, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/ mm6919e2.htm; Marisa Langdon-Embry et al., Notes from the Field: Rebound in Routine Childhood Vaccine Administration Following Decline During the COVID–19 Pandemic—New York City, March 1–June 27, 2020, Morb. Mortal. Wkly. Rep. 69(30):999–1001 (Jul. 31 2020), https:// www.cdc.gov/mmwr/volumes/69/wr/ mm6930a3.htm. 31 Office of the White House, National Strategy for the COVID–19 Response and Pandemic Preparedness (Jan. 21, 2021), https:// www.whitehouse.gov/wp-content/uploads/2021/01/ National-Strategy-for-the-COVID-19-Response-andPandemic-Preparedness.pdf. 32 In a study of 13 states from October to December 2020, the CDC found that Hispanic or Latino and Native American or Alaska Native individuals were 1.7 times more likely to visit an emergency room for COVID–19 than White individuals, and Black individuals were 1.4 times more likely to do so than White individuals. See Romano, supra note 10. 33 Centers for Disease Control and Prevention, COVID Data Tracker: Trends in COVID–19 Cases and Deaths in the United States, by County-level Population Factors, https://covid.cdc.gov/coviddata-tracker/#pop-factors_totaldeaths (last visited May 8, 2021). 34 The CDC’s Social Vulnerability Index includes fifteen variables measuring social vulnerability, including unemployment, poverty, education levels, single-parent households, disability status, non-English speaking households, crowded housing, and transportation access. Centers for Disease Control and Prevention, COVID Data Tracker: Trends in COVID–19 Cases E:\FR\FM\17MYR2.SGM Continued 17MYR2 26790 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations Over the last year, Native Americans have experienced more than one and a half times the rate of COVID–19 infections, more than triple the rate of hospitalizations, and more than double the death rate compared to White Americans.35 Low-income and minority communities also exhibit higher rates of pre-existing conditions that may contribute to an increased risk of COVID–19 mortality.36 In addition, individuals living in lowincome communities may have had more limited ability to socially distance or to self-isolate when ill, resulting in faster spread of the virus, and were over-represented among essential workers, who faced greater risk of exposure.37 Social distancing measures in response to the pandemic may have also exacerbated pre-existing public health challenges. For example, for children living in homes with lead paint, spending substantially more time at home raises the risk of developing elevated blood lead levels, while screenings for elevated blood lead levels declined during the pandemic.38 The combination of these underlying social and health vulnerabilities may have contributed to more severe public health outcomes of the pandemic within these communities, resulting in an exacerbation of pre-existing disparities in health outcomes.39 and Deaths in the United States, by Social Vulnerability Index, https://covid.cdc.gov/coviddata-tracker/#pop-factors_totaldeaths (last visited May 8, 2021). 35 Centers for Disease Control and Prevention, Risk for COVID–19 Infection, Hospitalization, and Death By Race/Ethnicity, https://www.cdc.gov/ coronavirus/2019-ncov/covid-data/investigationsdiscovery/hospitalization-death-by-raceethnicity.html (last visited Apr. 26, 2021). 36 See, e.g., Centers for Disease Control and Prevention, Risk of Severe Illness or Death from COVID–19 (Dec. 10, 2020), https://www.cdc.gov/ coronavirus/2019-ncov/community/health-equity/ racial-ethnic-disparities/disparities-illness.html (last visited Apr. 26, 2021). 37 Milena Almagro et al., Racial Disparities in Frontline Workers and Housing Crowding During COVID–19: Evidence from Geolocation Data (Sept. 22, 2020), NYU Stern School of Business (forthcoming), available at https://papers.ssrn.com/ sol3/papers.cfm?abstract_id=3695249; Grace McCormack et al., Economic Vulnerability of Households with Essential Workers, JAMA 324(4):388–90 (2020), available at https:// jamanetwork.com/journals/jama/fullarticle/ 2767630. 38 See, e.g., Joseph G. Courtney et al., Decreases in Young Children Who Received Blood Lead Level Testing During COVID–19—34 Jurisdictions, January–May 2020, Morb. Mort. Wkly. Rep. 70(5):155–61 (Feb. 5, 2021), https://www.cdc.gov/ mmwr/volumes/70/wr/mm7005a2.htm; Emily A. Benfer & Lindsay F. Wiley, Health Justice Strategies to Combat COVID–19: Protecting Vulnerable Communities During a Pandemic, Health Affairs Blog (Mar. 19, 2020), https://www.healthaffairs.org/ do/10.1377/hblog20200319.757883/full/. 39 See, e.g., Centers for Disease Control and Prevention, supra note 34; Benfer & Wiley, supra VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 Eligible Public Health Uses. The Fiscal Recovery Funds provide resources to meet and address these emergent public health needs, including through measures to counter the spread of COVID–19, through the provision of care for those impacted by the virus, and through programs or services that address disparities in public health that have been exacerbated by the pandemic. To facilitate implementation and use of payments from the Fiscal Recovery Funds, the interim final rule identifies a non-exclusive list of eligible uses of funding to respond to the COVID–19 public health emergency. Eligible uses listed under this section build and expand upon permissible expenditures under the CRF, while recognizing the differences between the ARPA and CARES Act, and recognizing that the response to the COVID–19 public health emergency has changed and will continue to change over time. To assess whether additional uses would be eligible under this category, recipients should identify an effect of COVID–19 on public health, including either or both of immediate effects or effects that may manifest over months or years, and assess how the use would respond to or address the identified need. The interim final rule identifies a non-exclusive list of uses that address the effects of the COVID–19 public health emergency, including: • COVID–19 Mitigation and Prevention. A broad range of services and programming are needed to contain COVID–19. Mitigation and prevention efforts for COVID–19 include vaccination programs; medical care; testing; contact tracing; support for isolation or quarantine; supports for vulnerable populations to access medical or public health services; public health surveillance (e.g., monitoring case trends, genomic sequencing for variants); enforcement of public health orders; public communication efforts; enhancement to health care capacity, including through alternative care facilities; purchases of personal protective equipment; support for prevention, mitigation, or other services in congregate living facilities (e.g., nursing homes, incarceration settings, homeless shelters, group living facilities) and other key settings like schools; 40 ventilation improvements in note 38; Nathaniel M. Lewis et al., Disparities in COVID–19 Incidence, Hospitalizations, and Testing, by Area-Level Deprivation—Utah, March 3–July 9, 2020, Morb. Mortal. Wkly. Rep. 69(38):1369–73 (Sept. 25, 2020), https://www.cdc.gov/mmwr/ volumes/69/wr/mm6938a4.htm. 40 This includes implementing mitigation strategies consistent with the Centers for Disease Control and Prevention’s (CDC) Operational PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 congregate settings, health care settings, or other key locations; enhancement of public health data systems; and other public health responses.41 They also include capital investments in public facilities to meet pandemic operational needs, such as physical plant improvements to public hospitals and health clinics or adaptations to public buildings to implement COVID–19 mitigation tactics. These COVID–19 prevention and mitigation programs and services, among others, were eligible expenditures under the CRF and are eligible uses under this category of eligible uses for the Fiscal Recovery Funds.42 • Medical Expenses. The COVID–19 public health emergency continues to have devastating effects on public health; the United States continues to average hundreds of deaths per day and the spread of new COVID–19 variants has raised new risks and genomic surveillance needs.43 Moreover, our understanding of the potentially serious and long-term effects of the virus is growing, including the potential for symptoms like shortness of breath to continue for weeks or months, for multiorgan impacts from COVID–19, or for post-intensive care syndrome.44 State and local governments may need to continue to provide care and services to address these near- and longer-term needs.45 Strategy for K–12 Schools through Phased Prevention, available at https://www.cdc.gov/ coronavirus/2019-ncov/community/schoolschildcare/operation-strategy.html. 41 Many of these expenses were also eligible in the CRF. Generally, funding uses eligible under CRF as a response to the direct public health impacts of COVID–19 will continue to be eligible under the ARPA, including those not explicitly listed here (e.g., telemedicine costs, costs to facilitate compliance with public health orders, disinfection of public areas, facilitating distance learning, increased solid waste disposal needs related to PPE, paid sick and paid family and medical leave to public employees to enable compliance with COVID–19 public health precautions), with the following two exceptions: (1) The standard for eligibility of public health and safety payrolls has been updated (see section II.A of this SUPPLEMENTARY INFORMATION) and (2) expenses related to the issuance of tax-anticipation notes are no longer an eligible funding use (see discussion of debt service in section II.B of this SUPPLEMENTARY INFORMATION). 42 Coronavirus Relief Fund for States, Tribal Governments, and Certain Eligible Local Governments, 86 FR 4182 (Jan. 15, 2021), available at https://home.treasury.gov/system/files/136/CRFGuidance-Federal-Register_2021-00827.pdf. 43 Centers for Disease Control and Prevention, supra note 24. 44 Centers for Disease Control and Prevention, Long-Term Effects (Apr. 8, 2021), https:// www.cdc.gov/coronavirus/2019-ncov/long-termeffects.html (last visited Apr. 26, 2021). 45 Pursuant to 42 CFR 433.51 and 45 CFR 75.306, Fiscal Recovery Funds may not serve as a State or locality’s contribution of certain Federal funds. E:\FR\FM\17MYR2.SGM 17MYR2 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations • Behavioral Health Care. In addition, new or enhanced State, local, and Tribal government services may be needed to meet behavioral health needs exacerbated by the pandemic and respond to other public health impacts. These services include mental health treatment, substance misuse treatment, other behavioral health services, hotlines or warmlines, crisis intervention, overdose prevention, infectious disease prevention, and services or outreach to promote access to physical or behavioral health primary care and preventative medicine. • Public Health and Safety Staff. Treasury recognizes that responding to the public health and negative economic impacts of the pandemic, including administering the services described above, requires a substantial commitment of State, local, and Tribal government human resources. As a result, the Fiscal Recovery Funds may be used for payroll and covered benefits expenses for public safety, public health, health care, human services, and similar employees, to the extent that their services are devoted to mitigating or responding to the COVID–19 public health emergency.46 Accordingly, the Fiscal Recovery Funds may be used to support the payroll and covered benefits for the portion of the employee’s time that is dedicated to responding to the COVID–19 public health emergency. For administrative convenience, the recipient may consider public health and safety employees to be entirely devoted to mitigating or responding to the COVID–19 public health emergency, and therefore fully covered, if the employee, or his or her operating unit or division, is primarily dedicated to responding to the COVID–19 public health emergency. Recipients may consider other presumptions for assessing the extent to which an employee, division, or operating unit is engaged in activities that respond to the COVID–19 public health emergency, provided that the recipient reassesses periodically and maintains records to support its assessment, such as payroll records, attestations from supervisors or staff, or regular work product or correspondence demonstrating work on 46 In general, if an employee’s wages and salaries are an eligible use of Fiscal Recovery Funds, recipients may treat the employee’s covered benefits as an eligible use of Fiscal Recovery Funds. For purposes of the Fiscal Recovery Funds, covered benefits include costs of all types of leave (vacation, family-related, sick, military, bereavement, sabbatical, jury duty), employee insurance (health, life, dental, vision), retirement (pensions, 401(k)), unemployment benefit plans (Federal and state), workers compensation insurance, and Federal Insurance Contributions Act (FICA) taxes (which includes Social Security and Medicare taxes). VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 the COVID–19 response. Recipients need not routinely track staff hours. • Expenses to Improve the Design and Execution of Health and Public Health Programs. State, local, and Tribal governments may use payments from the Fiscal Recovery Funds to engage in planning and analysis in order to improve programs addressing the COVID–19 pandemic, including through use of targeted consumer outreach, improvements to data or technology infrastructure, impact evaluations, and data analysis. Eligible Uses to Address Disparities in Public Health Outcomes. In addition, in recognition of the disproportionate impacts of the COVID–19 pandemic on health outcomes in low-income and Native American communities and the importance of mitigating these effects, the interim final rule identifies a broader range of services and programs that will be presumed to be responding to the public health emergency when provided in these communities. Specifically, Treasury will presume that certain types of services, outlined below, are eligible uses when provided in a Qualified Census Tract (QCT),47 to families living in QCTs, or when these services are provided by Tribal governments.48 Recipients may also provide these services to other populations, households, or geographic areas that are disproportionately impacted by the pandemic. In identifying these disproportionatelyimpacted communities, recipients should be able to support their determination that the pandemic resulted in disproportionate public health or economic outcomes to the 47 Qualified Census Tracts are a common, readilyaccessible, and geographically granular method of identifying communities with a large proportion of low-income residents. Using an existing measure may speed implementation and decrease administrative burden, while identifying areas of need at a highly-localized level. While QCTs are an effective tool generally, many tribal communities have households with a wide range of income levels due in part to non-tribal member, high income residents living in the community. Mixed income communities, with a significant share of tribal members at the lowest levels of income, are often not included as eligible QCTs yet tribal residents are experiencing disproportionate impacts due to the pandemic. Therefore, including all services provided by Tribal governments is a more effective means of ensuring that disproportionately impacted Tribal members can receive services. 48 U.S. Department of Housing and Urban Development (HUD), Qualified Census Tracts and Difficult Development Areas, https:// www.huduser.gov/portal/datasets/qct.html (last visited Apr. 26, 2021); U.S. Department of the Interior, Bureau of Indian Affairs, Indian Lands of Federally Recognized Tribes of the United States (June 2016), https://www.bia.gov/sites/bia.gov/files/ assets/bia/ots/webteam/pdf/idc1-028635.pdf (last visited Apr. 26, 2021). PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 26791 specific populations, households, or geographic areas to be served. Given the exacerbation of health disparities during the pandemic and the role of pre-existing social vulnerabilities in driving these disparate outcomes, services to address health disparities are presumed to be responsive to the public health impacts of the pandemic. Specifically, recipients may use payments from the Fiscal Recovery Funds to facilitate access to resources that improve health outcomes, including services that connect residents with health care resources and public assistance programs and build healthier environments, such as: • Funding community health workers to help community members access health services and services to address the social determinants of health; 49 • Funding public benefits navigators to assist community members with navigating and applying for available Federal, State, and local public benefits or services; • Housing services to support healthy living environments and neighborhoods conducive to mental and physical wellness; • Remediation of lead paint or other lead hazards to reduce risk of elevated blood lead levels among children; and • Evidence-based community violence intervention programs to prevent violence and mitigate the increase in violence during the pandemic.50 2. Responding to Negative Economic Impacts Impacts on Households and Individuals. The public health emergency, including the necessary measures taken to protect public health, resulted in significant economic and financial hardship for many Americans. As businesses closed, consumers stayed home, schools shifted to remote 49 The social determinants of health are the social and environmental conditions that affect health outcomes, specifically economic stability, health care access, social context, neighborhoods and built environment, and education access. See, e.g., U.S. Department of Health and Human Services, Office of Disease Prevention and Health Promotion, Healthy People 2030: Social Determinants of Health, https://health.gov/healthypeople/objectivesand-data/social-determinants-health (last visited Apr. 26, 2021). 50 National Commission on COVID–19 and Criminal Justice, Impact Report: COVID–19 and Crime (Jan. 31, 2021), https:// covid19.counciloncj.org/2021/01/31/impact-reportcovid-19-and-crime-3/ (showing a spike in homicide and assaults); Brad Boesrup et al., Alarming Trends in US domestic violence during the COVID–19 pandemic, Am. J. of Emerg. Med. 38(12): 2753–55 (Dec. 1, 2020), available at https:// www.ajemjournal.com/article/S07356757(20)30307-7/fulltext (showing a spike in domestic violence). E:\FR\FM\17MYR2.SGM 17MYR2 26792 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations education, and travel declined precipitously, over 20 million jobs were lost in March and April 2020.51 Although many have returned to work, as of April 2021, the economy remains 8.2 million jobs below its pre-pandemic peak,52 and more than 3 million workers have dropped out of the labor market altogether relative to February 2020.53 Rates of unemployment are particularly severe among workers of color and workers with lower levels of educational attainment; for example, the overall unemployment rate in the United States was 6.1 percent in April 2021, but certain groups saw much higher rates: 9.7 percent for Black workers, 7.9 percent for Hispanic or Latino workers, and 9.3 percent for workers without a high school diploma.54 Job losses have also been particularly steep among low wage workers, with these workers remaining furthest from recovery as of the end of 2020.55 A severe recession—and its concentrated impact among low-income workers—has amplified food and housing insecurity, with an estimated nearly 17 million adults living in households where there is sometimes or often not enough food to eat and an estimated 10.7 million adults living in households that were not current on rent.56 Over the course of the pandemic, 51 U.S. Bureau of Labor Statistics, All Employees, Total Nonfarm (PAYEMS), retrieved from FRED, Federal Reserve Bank of St. Louis; https:// fred.stlouisfed.org/series/PAYEMS (last visited May 8, 2021). 52 Id. 53 U.S. Bureau of Labor Statistics, Civilian Labor Force Level [CLF16OV], retrieved from FRED, Federal Reserve Bank of St. Louis, https:// fred.stlouisfed.org/series/CLF16OV (last visited May 8, 2021). 54 U.S. Bureau of Labor Statistics, Labor Force Statistics from the Current Population Survey: Employment status of the civilian population by sex and age (May 8 2021), https://www.bls.gov/ news.release/empsit.t01.htm (last visited May 8, 2021); U.S. Bureau of Labor Statistics, Labor Force Statistics from the Current Population Survey: Employment status of the civilian noninstitutional population by race, Hispanic or Latino ethnicity, sex, and age (May 8, 2021), https://www.bls.gov/ web/empsit/cpseea04.htm (last visited May 8, 2021); U.S. Bureau of Labor Statistics, Labor Force Statistics from the Current Population Survey: Employment status of the civilian noninstitutional population 25 years and over by educational attainment (May 8, 2021), https://www.bls.gov/web/ empsit/cpseea05.htm (last visited May 8, 2021). 55 Elise Gould & Jori Kandra, Wages grew in 2020 because the bottom fell out of the low-wage labor market, Economic Policy Institute (Feb. 24, 2021), https://files.epi.org/pdf/219418.pdf. See also, Michael Dalton et al., The K-Shaped Recovery: Examining the Diverging Fortunes of Workers in the Recovery from the COVID–19 Pandemic using Business and Household Survey Microdata, U.S. Bureau of Labor Statistics Working Paper Series (Feb. 2021), https://www.bls.gov/osmr/researchpapers/2021/pdf/ec210020.pdf. 56 Center on Budget and Policy Priorities, Tracking the COVID–19 Recession’s Effects on VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 inequities also manifested along gender lines, as schools closed to in-person activities, leaving many working families without child care during the day.57 Women of color have been hit especially hard: The labor force participation rate for Black women has fallen by 3.2 percentage points 58 during the pandemic as compared to 1.0 percentage points for Black men 59 and 2.0 percentage points for White women.60 As the economy recovers, the effects of the pandemic-related recession may continue to impact households, including a risk of longer-term effects on earnings and economic potential. For example, unemployed workers, especially those who have experienced longer periods of unemployment, earn lower wages over the long term once rehired.61 In addition to the labor market consequences for unemployed workers, recessions can also cause longer-term economic challenges through, among other factors, damaged consumer credit scores 62 and reduced familial and childhood wellbeing.63 Food, Housing, and Employment Hardships, https://www.cbpp.org/research/poverty-andinequality/tracking-the-covid-19-recessions-effectson-food-housing-and (last visited May 8, 2021). 57 Women have carried a larger share of childcare responsibilities than men during the COVID–19 crisis. See, e.g., Gema Zamarro & Marı´a J. Prados, Gender differences in couples’ division of childcare, work and mental health during COVID– 19, Rev. Econ. Household 19:11–40 (2021), available at https://link.springer.com/article/ 10.1007/s11150-020-09534-7; Titan Alon et al., The Impact of COVID–19 on Gender Equality, National Bureau of Economic Research Working Paper 26947 (April 2020), available at https://www.nber.org/ papers/w26947. 58 U.S. Bureau of Labor Statistics, Labor Force Participation Rate—20 Yrs. & Over, Black or African American Women [LNS11300032], retrieved from FRED, Federal Reserve Bank of St. Louis; https:// fred.stlouisfed.org/series/LNS11300032 (last visited May 8, 2021). 59 U.S. Bureau of Labor Statistics, Labor Force Participation Rate—20 Yrs. & Over, Black or African American Men [LNS11300031], retrieved from FRED, Federal Reserve Bank of St. Louis; https:// fred.stlouisfed.org/series/LNS11300031 (last visited May 8, 2021). 60 U.S. Bureau of Labor Statistics, Labor Force Participation Rate—20 Yrs. & Over, White Women [LNS11300029], retrieved from FRED, Federal Reserve Bank of St. Louis; https:// fred.stlouisfed.org/series/LNS11300029 (last visited May 8, 2021). 61 See, e.g., Michael Greenstone & Adam Looney, Unemployment and Earnings Losses: A Look at Long-Term Impacts of the Great Recession on American Workers, Brookings Institution (Nov. 4, 2021), https://www.brookings.edu/blog/jobs/2011/ 11/04/unemployment-and-earnings-losses-a-lookat-long-term-impacts-of-the-great-recession-onamerican-workers/. 62 Chi Chi Wu, Solving the Credit Conundrum: Helping Consumers’ Credit Records Impaired by the Foreclosure Crisis and Great Recession (Dec. 2013), https://www.nclc.org/images/pdf/credit_reports/ report-credit-conundrum-2013.pdf. 63 Irwin Garfinkel, Sara McLanahan, Christopher Wimer, eds., Children of the Great Recession, PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 These potential long-term economic consequences underscore the continued need for robust policy support. Impacts on Businesses. The pandemic has also severely impacted many businesses, with small businesses hit especially hard. Small businesses make up nearly half of U.S. private-sector employment 64 and play a key role in supporting the overall economic recovery as they are responsible for twothirds of net new jobs.65 Since the beginning of the pandemic, however, 400,000 small businesses have closed, with many more at risk.66 Sectors with a large share of small business employment have been among those with the most drastic drops in employment.67 The negative outlook for small businesses has continued: As of April 2021, approximately 70 percent of small businesses reported that the pandemic has had a moderate or large negative effect on their business, and over a third expect that it will take over 6 months for their business to return to their normal level of operations.68 This negative outlook is likely the result of many small businesses having faced periods of closure and having seen declining revenues as customers stayed home.69 In general, small businesses can face greater hurdles in accessing credit,70 and many small businesses were already financially fragile at the outset of the pandemic.71 Non-profits, which provide vital services to communities, have similarly faced Russell Sage Foundation (Aug. 2016), available at https://www.russellsage.org/publications/childrengreat-recession. 64 Board of Governors of the Federal Reserve System, supra note 5. 65 U.S. Small Business Administration, Office of Advocacy, Small Businesses Generate 44 Percent of U.S. Economic Activity (Jan. 30, 2019), https:// advocacy.sba.gov/2019/01/30/small-businessesgenerate-44-percent-of-u-s-economic-activity/. 66 Biden, supra note 6. 67 Daniel Wilmoth, U.S. Small Business Administration Office of Advocacy, The Effects of the COVID–19 Pandemic on Small Businesses, Issue Brief No. 16 (Mar. 2021), available at https:// cdn.advocacy.sba.gov/wp-content/uploads/2021/ 03/02112318/COVID-19-Impact-On-SmallBusiness.pdf. 68 U.S. Census Bureau, Small Business Pulse Survey, https://portal.census.gov/pulse/data/ (last visited May 8, 2021). 69 Olivia S. Kim et al., Revenue Collapses and the Consumption of Small Business Owners in the Early Stages of the COVID–19 Pandemic (Nov. 2020), https://www.nber.org/papers/w28151. 70 See e.g., Board of Governors of the Federal Reserve System, Report to Congress on the Availability of Credit to Small Businesses (Sept. 2017), available at https://www.federalreserve.gov/ publications/2017-september-availability-of-creditto-small-businesses.htm. 71 Alexander W. Bartik et al., The Impact of COVID–19 on small business outcomes and expectations, PNAS 117(30): 17656–66 (July 28, 2020), available at https://www.pnas.org/content/ 117/30/17656. E:\FR\FM\17MYR2.SGM 17MYR2 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations economic and financial challenges due to the pandemic.72 Impacts to State, Local, and Tribal Governments. State, local, and Tribal governments have felt substantial fiscal pressures. As noted above, State, local, and Tribal governments have faced significant revenue shortfalls and remain over 1 million jobs below their pre-pandemic staffing levels.73 These reductions in staffing may undermine the ability to deliver services effectively, as well as add to the number of unemployed individuals in their jurisdictions. Exacerbation of Pre-existing Disparities. The COVID–19 public health emergency may have lasting negative effects on economic outcomes, particularly in exacerbating disparities that existed prior to the pandemic. The negative economic impacts of the COVID–19 pandemic are particularly pronounced in certain communities and families. Low- and moderate-income jobs make up a substantial portion of both total pandemic job losses,74 and jobs that require in-person frontline work, which are exposed to greater risk of contracting COVID–19.75 Both factors compound pre-existing vulnerabilities and the likelihood of food, housing, or other financial insecurity in low- and moderate-income families and, given the concentration of low- and moderateincome families within certain communities,76 raise a substantial risk that the effects of the COVID–19 public health emergency will be amplified within these communities. These compounding effect of recessions on concentrated poverty and the long-lasting nature of this effect were observed after the 2007–2009 recession, including a large increase in concentrated poverty with the number of people living in extremely poor 72 Federal Reserve Bank of San Francisco, Impacts of COVID–19 on Nonprofits in the Western United States (May 2020), https://www.frbsf.org/ community-development/files/impact-of-covidnonprofits-serving-western-united-states.pdf. 73 Bureau of Labor Statistics, supra note 8; Elijah Moreno & Heather Sobrepena, Tribal entities remain resilient as COVID–19 batters their finances, Federal Reserve Bank of Minneapolis (Nov. 10, 2021), https://www.minneapolisfed.org/article/ 2020/tribal-entities-remain-resilient-as-covid-19batters-their-finances. 74 Kim Parker et al., Economic Fallout from COVID–19 Continues to Hit Lower-Income Americans the Hardest, Pew Research Center (Sept. 24, 2020), https://www.pewresearch.org/socialtrends/2020/09/24/economic-fallout-from-covid-19continues-to-hit-lower-income-americans-thehardest/; Gould, supra note 55. 75 See infra Section II.B of this Supplementary Information. 76 Elizabeth Kneebone, The Changing geography of US poverty, Brookings Institution (Feb. 15, 2017), https://www.brookings.edu/testimonies/thechanging-geography-of-us-poverty/. VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 neighborhoods more than doubling by 2010–2014 relative to 2000.77 Concentrated poverty has a range of deleterious impacts, including additional burdens on families and reduced economic potential and social cohesion.78 Given the disproportionate impact of COVID–19 on low-income households discussed above, there is a risk that the current pandemic-induced recession could further increase concentrated poverty and cause longterm damage to economic prospects in neighborhoods of concentrated poverty. The negative economic impacts of COVID–19 also include significant impacts to children in disproportionately affected families and include impacts to education, health, and welfare, all of which contribute to long-term economic outcomes.79 Many low-income and minority students, who were disproportionately served by remote or hybrid education during the pandemic, lacked the resources to participate fully in remote schooling or live in households without adults available throughout the day to assist with online coursework.80 Given these trends, the pandemic may widen educational disparities and worsen outcomes for low-income students,81 an 77 Elizabeth Kneebone & Natalie Holmes, U.S. concentrated poverty in the wake of the Great Recession, Brookings Institution (Mar. 31, 2016), https://www.brookings.edu/research/u-sconcentrated-poverty-in-the-wake-of-the-greatrecession/. 78 David Erickson et al., The Enduring Challenge of Concentrated Poverty in America: Case Studies from Communities Across the U.S. (2008), available at https://www.frbsf.org/community-development/ files/cp_fullreport.pdf. 79 Educational quality, as early as Kindergarten, has a long-term impact on children’s public health and economic outcomes. See, e.g., Tyler W. Watts et al., The Chicago School Readiness Project: Examining the long-term impacts of an early childhood intervention, PLoS ONE 13(7) (2018), available at https://journals.plos.org/plosone/ article?id=10.1371/journal.pone.0200144; Opportunity Insights, How Can We Amplify Education as an Engine of Mobility? Using big data to help children get the most from school, https:// opportunityinsights.org/education/ (last visited Apr. 26, 2021); U.S. Department of Health and Human Services (HHS), Office of Disease Prevention and Health Promotion, Early Childhood Development and Education, https:// www.healthypeople.gov/2020/topics-objectives/ topic/social-determinants-health/interventionsresources/early-childhood-development-andeducation (last visited Apr. 26, 2021). 80 See, e.g., Bacher-Hicks, supra note 14. 81 A Department of Education survey found that, as of February 2021, 42 percent of fourth grade students nationwide were offered only remote education, compared to 48 percent of economically disadvantaged students, 54 percent of Black students and 57 percent of Hispanic students. Large districts often disproportionately serve low-income students. See Institute of Education Sciences, Monthly School Survey Dashboard, https:// ies.ed.gov/schoolsurvey/ (last visited Apr. 26, 2021). In summer 2020, a review found that 74 percent of the largest 100 districts chose remote learning only. PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 26793 effect that would substantially impact their long-term economic outcomes. Increased economic strain or material hardship due to the pandemic could also have a long-term impact on health, educational, and economic outcomes of young children.82 Evidence suggests that adverse conditions in early childhood, including exposure to poverty, food insecurity, housing insecurity, or other economic hardships, are particularly impactful.83 The pandemic’s disproportionate economic impacts are also seen in Tribal communities across the country—for Tribal governments as well as families and businesses on and off Tribal lands. In the early months of the pandemic, Native American unemployment spiked to 26 percent and, while partially recovered, remains at nearly 11 percent.84 Tribal enterprises are a significant source of revenue for Tribal governments to support the provision of government services. These enterprises, notably concentrated in gaming, tourism, and hospitality, frequently closed, significantly reducing both revenues to Tribal governments and employment. As a result, Tribal governments have reduced essential services to their citizens and communities.85 Eligible Uses. Sections 602(c)(1)(A) and 603(c)(1)(A) permit use of payments from the Fiscal Recovery Funds to respond to the negative economic impacts of the COVID–19 public health emergency. Eligible uses that respond to the negative economic impacts of the public health emergency must be designed to address an economic harm resulting from or exacerbated by the public health emergency. In considering whether a program or service would be See Education Week, School Districts’ Reopening Plans: A Snapshot (Jul. 15, 2020), https:// www.edweek.org/leadership/school-districtsreopening-plans-a-snapshot/2020/07 (last visited May 4, 2021). 82 HHS, supra note 79. 83 Hirokazu Yoshikawa, Effects of the Global Coronavirus Disease—2019 Pandemic on Early Childhood Development: Short- and Long-Term Risks and Mitigating Program and Policy Actions, J. of Pediatrics Vol. 223:188–93 (Aug. 1, 2020), available at https://www.jpeds.com/article/S00223476(20)30606-5/abstract. 84 Based on calculations conducted by the Minneapolis Fed’s Center for Indian Country Development using Flood et al. (2020)’s Current Population Survey.’’ Sarah Flood, Miriam King, Renae Rodgers, Steven Ruggles and J. Robert Warren. Integrated Public Use Microdata Series, Current Population Survey: Version 8.0 [dataset]. Minneapolis, MN: IPUMS, 2020. https://doi.org/ 10.18128/D030.V8.0; see also Donna Feir & Charles Golding, Native Employment During COVID–19: Hard hit in April but Starting to Rebount? (Aug. 5, 2020), https://www.minneapolisfed.org/article/ 2020/native-employment-during-covid-19-hit-hardin-april-but-starting-to-rebound. 85 Moreno & Sobrepena, supra note 73. E:\FR\FM\17MYR2.SGM 17MYR2 26794 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations eligible under this category, the recipient should assess whether, and the extent to which, there has been an economic harm, such as loss of earnings or revenue, that resulted from the COVID–19 public health emergency and whether, and the extent to which, the use would respond or address this harm.86 A recipient should first consider whether an economic harm exists and whether this harm was caused or made worse by the COVID–19 public health emergency. While economic impacts may either be immediate or delayed, assistance or aid to individuals or businesses that did not experience a negative economic impact from the public health emergency would not be an eligible use under this category. In addition, the eligible use must ‘‘respond to’’ the identified negative economic impact. Responses must be related and reasonably proportional to the extent and type of harm experienced; uses that bear no relation or are grossly disproportionate to the type or extent of harm experienced would not be eligible uses. Where there has been a negative economic impact resulting from the public health emergency, States, local, and Tribal governments have broad latitude to choose whether and how to use the Fiscal Recovery Funds to respond to and address the negative economic impact. Sections 602(c)(1)(A) and 603(c)(1)(A) describe several types of uses that would be eligible under this category, including assistance to households, small businesses, and nonprofits and aid to impacted industries such as tourism, travel, and hospitality. To facilitate implementation and use of payments from the Fiscal Recovery Funds, the interim final rule identifies a non-exclusive list of eligible uses of funding that respond to the negative economic impacts of the public health emergency. Consistent with the discussion above, the eligible uses listed below would respond directly to the economic or financial harms resulting from and or exacerbated by the public health emergency. • Assistance to Unemployed Workers. This includes assistance to unemployed workers, including services like job training to accelerate rehiring of unemployed workers; these services may extend to workers unemployed due to the pandemic or the resulting recession, or who were already unemployed when the pandemic began 86 In some cases, a use may be permissible under another eligible use category even if it falls outside the scope of section (c)(1)(A) of the Act. VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 and remain so due to the negative economic impacts of the pandemic. • State Unemployment Insurance Trust Funds. Consistent with the approach taken in the CRF, recipients may make deposits into the state account of the Unemployment Trust Fund established under section 904 of the Social Security Act (42 U.S.C. 1104) up to the level needed to restore the prepandemic balances of such account as of January 27, 2020 or to pay back advances received under Title XII of the Social Security Act (42 U.S.C. 1321) for the payment of benefits between January 27, 2020 and May 17, 2021, given the close nexus between Unemployment Trust Fund costs, solvency of Unemployment Trust Fund systems, and pandemic economic impacts. Further, Unemployment Trust Fund deposits can decrease fiscal strain on Unemployment Insurance systems impacted by the pandemic. States facing a sharp increase in Unemployment Insurance claims during the pandemic may have drawn down positive Unemployment Trust Fund balances and, after exhausting the balance, required advances to fund continuing obligations to claimants. Because both of these impacts were driven directly by the need for assistance to unemployed workers during the pandemic, replenishing Unemployment Trust Funds up to the pre-pandemic level responds to the pandemic’s negative economic impacts on unemployed workers. • Assistance to Households. Assistance to households or populations facing negative economic impacts due to COVID–19 is also an eligible use. This includes: Food assistance; rent, mortgage, or utility assistance; counseling and legal aid to prevent eviction or homelessness; cash assistance (discussed below); emergency assistance for burials, home repairs, weatherization, or other needs; internet access or digital literacy assistance; or job training to address negative economic or public health impacts experienced due to a worker’s occupation or level of training. As discussed above, in considering whether a potential use is eligible under this category, a recipient must consider whether, and the extent to which, the household has experienced a negative economic impact from the pandemic. In assessing whether a household or population experienced economic harm as a result of the pandemic, a recipient may presume that a household or population that experienced unemployment or increased food or housing insecurity or is low- or moderate-income experienced negative PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 economic impacts resulting from the pandemic. For example, a cash transfer program may focus on unemployed workers or low- and moderate-income families, which have faced disproportionate economic harms due to the pandemic. Cash transfers must be reasonably proportional to the negative economic impact they are intended to address. Cash transfers grossly in excess of the amount needed to address the negative economic impact identified by the recipient would not be considered to be a response to the COVID–19 public health emergency or its negative impacts. In particular, when considering the appropriate size of permissible cash transfers made in response to the COVID–19 public health emergency, State, local and Tribal governments may consider and take guidance from the per person amounts previously provided by the Federal Government in response to the COVID–19 crisis. Cash transfers that are grossly in excess of such amounts would be outside the scope of eligible uses under sections 602(c)(1)(A) and 603(c)(1)(A) and could be subject to recoupment. In addition, a recipient could provide survivor’s benefits to surviving family members of COVID–19 victims, or cash assistance to widows, widowers, and dependents of eligible COVID–19 victims. • Expenses to Improve Efficacy of Economic Relief Programs. State, local, and Tribal governments may use payments from the Fiscal Recovery Funds to improve efficacy of programs addressing negative economic impacts, including through use of data analysis, targeted consumer outreach, improvements to data or technology infrastructure, and impact evaluations. • Small Businesses and Non-profits. As discussed above, small businesses and non-profits faced significant challenges in covering payroll, mortgages or rent, and other operating costs as a result of the public health emergency and measures taken to contain the spread of the virus. State, local, and Tribal governments may provide assistance to small businesses to adopt safer operating procedures, weather periods of closure, or mitigate financial hardship resulting from the COVID–19 public health emergency, including: Æ Loans or grants to mitigate financial hardship such as declines in revenues or impacts of periods of business closure, for example by supporting payroll and benefits costs, costs to retain employees, mortgage, rent, or utilities costs, and other operating costs; Æ Loans, grants, or in-kind assistance to implement COVID–19 prevention or mitigation tactics, such as physical E:\FR\FM\17MYR2.SGM 17MYR2 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations plant changes to enable social distancing, enhanced cleaning efforts, barriers or partitions, or COVID–19 vaccination, testing, or contact tracing programs; and Æ Technical assistance, counseling, or other services to assist with business planning needs. As discussed above, these services should respond to the negative economic impacts of COVID–19. Recipients may consider additional criteria to target assistance to businesses in need, including small businesses. Such criteria may include businesses facing financial insecurity, substantial declines in gross receipts (e.g., comparable to measures used to assess eligibility for the Paycheck Protection Program), or other economic harm due to the pandemic, as well as businesses with less capacity to weather financial hardship, such as the smallest businesses, those with less access to credit, or those serving disadvantaged communities. Recipients should consider local economic conditions and business data when establishing such criteria.87 • Rehiring State, Local, and Tribal Government Staff. State, local, and Tribal governments continue to see pandemic impacts in overall staffing levels: State, local, and Tribal government employment remains more than 1 million jobs lower in April 2021 than prior to the pandemic.88 Employment losses decrease a state or local government’s ability to effectively administer services. Thus, the interim final rule includes as an eligible use payroll, covered benefits, and other costs associated with rehiring public sector staff, up to the pre-pandemic staffing level of the government. • Aid to Impacted Industries. Sections 602(c)(1)(A) and 603(c)(1)(A) recognize that certain industries, such as tourism, travel, and hospitality, were disproportionately and negatively impacted by the COVID–19 public health emergency. Aid provided to tourism, travel, and hospitality industries should respond to the negative economic impacts of the 87 See Federal Reserve Bank of Cleveland, An Uphill Battle: COVID–19’s Outsized Toll on Minority-Owned Firms (Oct. 8, 2020), https:// www.clevelandfed.org/newsroom-and-events/ publications/community-development-briefs/db20201008-misera-report.aspx (discussing the impact of COVID–19 on minority owned businesses). 88 U.S. Bureau of Labor Statistics, All Employees, State Government [CES9092000001] and All Employees, Local Government [CES9093000001], retrieved from FRED, Federal Reserve Bank of St. Louis, https://fred.stlouisfed.org/series/ CES9092000001 and https://fred.stlouisfed.org/ series/CES9093000001 (last visited May 8, 2021). VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 pandemic on those and similarly impacted industries. For example, aid may include assistance to implement COVID–19 mitigation and infection prevention measures to enable safe resumption of tourism, travel, and hospitality services, for example, improvements to ventilation, physical barriers or partitions, signage to facilitate social distancing, provision of masks or personal protective equipment, or consultation with infection prevention professionals to develop safe reopening plans. Aid may be considered responsive to the negative economic impacts of the pandemic if it supports businesses, attractions, business districts, and Tribal development districts operating prior to the pandemic and affected by required closures and other efforts to contain the pandemic. For example, a recipient may provide aid to support safe reopening of businesses in the tourism, travel, and hospitality industries and to business districts that were closed during the COVID–19 public health emergency, as well as aid for a planned expansion or upgrade of tourism, travel, and hospitality facilities delayed due to the pandemic. When considering providing aid to industries other than tourism, travel, and hospitality, recipients should consider the extent of the economic impact as compared to tourism, travel, and hospitality, the industries enumerated in the statute. For example, on net, the leisure and hospitality industry has experienced an approximately 24 percent decline in revenue and approximately 17 percent decline in employment nationwide due to the COVID–19 public health emergency.89 Recipients should also consider whether impacts were due to the COVID–19 pandemic, as opposed to longer-term economic or industrial trends unrelated to the pandemic. To facilitate transparency and accountability, the interim final rule requires that State, local, and Tribal governments publicly report assistance provided to private-sector businesses under this eligible use, including 89 From February 2020 to April 2021, employment in ‘‘Leisure and hospitality’’ has fallen by approximately 17 percent. See U.S. Bureau of Labor Statistics, All Employees, Leisure and Hospitality, retrieved from FRED, Federal Reserve Bank of St. Louis, https://fred.stlouisfed.org/series/ USLAH (last visited May 8, 2021). From 2019Q4 to 2020Q4, gross output (e.g. revenue) in arts, entertainment, recreation, accommodation, and food services has fallen by approximately 24 percent. See Bureau of Economic Analysis, News Release: Gross Domestic Product (Third Estimate), Corporate Profits, and GDP by Industry, Fourth Quarter and Year 2020 (Mar. 25, 2021), Table 17, https://www.bea.gov/sites/default/files/2021-03/ gdp4q20_3rd.pdf. PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 26795 tourism, travel, hospitality, and other impacted industries, and its connection to negative economic impacts of the pandemic. Recipients also should maintain records to support their assessment of how businesses or business districts receiving assistance were affected by the negative economic impacts of the pandemic and how the aid provided responds to these impacts. As discussed above, economic disparities that existed prior to the COVID–19 public health emergency amplified the impact of the pandemic among low-income and minority groups. These families were more likely to face housing, food, and financial insecurity; are over-represented among low-wage workers; and many have seen their livelihoods deteriorate further during the pandemic and economic contraction. In recognition of the disproportionate negative economic impacts on certain communities and populations, the interim final rule identifies services and programs that will be presumed to be responding to the negative economic impacts of the COVID–19 public health emergency when provided in these communities. Specifically, Treasury will presume that certain types of services, outlined below, are eligible uses when provided in a QCT, to families and individuals living in QCTs, or when these services are provided by Tribal governments.90 Recipients may also provide these services to other populations, households, or geographic areas disproportionately impacted by the pandemic. In identifying these disproportionately impacted communities, recipients should be able to support their determination that the pandemic resulted in disproportionate public health or economic outcomes to the specific populations, households, or geographic areas to be served. The interim final rule identifies a nonexclusive list of uses that address the disproportionate negative economic effects of the COVID–19 public health emergency, including: Æ Building Stronger Communities through Investments in Housing and Neighborhoods. The economic impacts of COVID–19 have likely been most acute in lower-income neighborhoods, including concentrated areas of high unemployment, limited economic opportunity, and housing insecurity.91 90 HUD, supra note 48. M. Butler & Jonathan Grabinsky, Tackling the legacy of persistent urban inequality and concentrated poverty, Brookings Institution (Nov. 16, 2020), https://www.brookings.edu/blog/ up-front/2020/11/16/tackling-the-legacy-of91 Stuart E:\FR\FM\17MYR2.SGM Continued 17MYR2 26796 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations Services in this category alleviate the immediate economic impacts of the COVID–19 pandemic on housing insecurity, while addressing conditions that contributed to poor public health and economic outcomes during the pandemic, namely concentrated areas with limited economic opportunity and inadequate or poor-quality housing.92 Eligible services include: D Services to address homelessness such as supportive housing, and to improve access to stable, affordable housing among unhoused individuals; D Affordable housing development to increase supply of affordable and highquality living units; and D Housing vouchers, residential counseling, or housing navigation assistance to facilitate household moves to neighborhoods with high levels of economic opportunity and mobility for low-income residents, to help residents increase their economic opportunity and reduce concentrated areas of low economic opportunity.93 Æ Addressing Educational Disparities. As outlined above, school closures and the transition to remote education raised particular challenges for lower-income students, potentially exacerbating educational disparities, while increases in economic hardship among families could have long-lasting impacts on children’s educational and economic prospects. Services under this prong would enhance educational supports to help mitigate impacts of the pandemic. Eligible services include: D New, expanded, or enhanced early learning services, including prekindergarten, Head Start, or partnerships between pre-kindergarten programs and local education authorities, or administration of those services; D Providing assistance to high-poverty school districts to advance equitable funding across districts and geographies; D Evidence-based educational services and practices to address the academic needs of students, including tutoring, summer, afterschool, and other persistent-urban-inequality-and-concentratedpoverty/. 92 U.S. Department of Health and Human Services (HHS), Office of Disease Prevention and Health Promotion, Quality of Housing, https:// www.healthypeople.gov/2020/topics-objectives/ topic/social-determinants-health/interventionsresources/quality-of-housing#11 (last visited Apr. 26, 2021). 93 The Opportunity Atlas, https:// www.opportunityatlas.org/ (last visited Apr. 26, 2021); Raj Chetty & Nathaniel Hendren, The Impacts of Neighborhoods on Intergenerational Mobility I: Childhood Exposure Effects, Quarterly J. of Econ. 133(3):1107–162 (2018), available at https://opportunityinsights.org/paper/ neighborhoodsi/. VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 extended learning and enrichment programs; and D Evidence-based practices to address the social, emotional, and mental health needs of students; Æ Promoting Healthy Childhood Environments. Children’s economic and family circumstances have a long-term impact on their future economic outcomes.94 Increases in economic hardship, material insecurity, and parental stress and behavioral health challenges all raise the risk of long-term harms to today’s children due to the pandemic. Eligible services to address this challenge include: D New or expanded high-quality childcare to provide safe and supportive care for children; D Home visiting programs to provide structured visits from health, parent educators, and social service professionals to pregnant women or families with young children to offer education and assistance navigating resources for economic support, health needs, or child development; and D Enhanced services for child welfareinvolved families and foster youth to provide support and training on child development, positive parenting, coping skills, or recovery for mental health and substance use challenges. State, local, and Tribal governments are encouraged to use payments from the Fiscal Recovery Funds to respond to the direct and immediate needs of the pandemic and its negative economic impacts and, in particular, the needs of households and businesses that were disproportionately and negatively impacted by the public health emergency. As highlighted above, lowincome communities and workers and people of color have faced more severe health and economic outcomes during the pandemic, with pre-existing social vulnerabilities like low-wage or insecure employment, concentrated neighborhoods with less economic opportunity, and pre-existing health disparities likely contributing to the magnified impact of the pandemic. The Fiscal Recovery Funds provide resources to not only respond to the immediate harms of the pandemic but also to mitigate its longer-term impact in compounding the systemic public health and economic challenges of disproportionately impacted populations. Treasury encourages recipients to consider funding uses that foster a strong, inclusive, and equitable recovery, especially uses with long-term benefits for health and economic outcomes. 94 See PO 00000 supra notes 52 and 84. Frm 00012 Fmt 4701 Sfmt 4700 Uses Outside the Scope of this Category. Certain uses would not be within the scope of this eligible use category, although may be eligible under other eligible use categories. A general infrastructure project, for example, typically would not be included unless the project responded to a specific pandemic public health need (e.g., investments in facilities for the delivery of vaccines) or a specific negative economic impact like those described above (e.g., affordable housing in a QCT). The ARPA explicitly includes infrastructure if it is ‘‘necessary’’ and in water, sewer, or broadband. See Section II.D of this SUPPLEMENTARY INFORMATION. State, local, and Tribal governments also may use the Fiscal Recovery Funds under sections 602(c)(1)(C) or 603(c)(1)(C) to provide ‘‘government services’’ broadly to the extent of their reduction in revenue. See Section II.C of this SUPPLEMENTARY INFORMATION. This category of eligible uses also would not include contributions to rainy day funds, financial reserves, or similar funds. Resources made available under this eligible use category are intended to help meet pandemic response needs and provide relief for households and businesses facing nearand long-term negative economic impacts. Contributions to rainy day funds and similar financial reserves would not address these needs or respond to the COVID–19 public health emergency but would rather constitute savings for future spending needs. Similarly, this eligible use category would not include payment of interest or principal on outstanding debt instruments, including, for example, short-term revenue or tax anticipation notes, or other debt service costs. As discussed below, payments from the Fiscal Recovery Funds are intended to be used prospectively and the interim final rule precludes use of these funds to cover the costs of debt incurred prior to March 3, 2021. Fees or issuance costs associated with the issuance of new debt would also not be covered using payments from the Fiscal Recovery Funds because such costs would not themselves have been incurred to address the needs of pandemic response or its negative economic impacts. The purpose of the Fiscal Recovery Funds is to provide fiscal relief that will permit State, local, and Tribal governments to continue to respond to the COVID–19 public health emergency. For the same reasons, this category of eligible uses would not include satisfaction of any obligation arising under or pursuant to a settlement agreement, judgment, consent decree, or judicially confirmed debt restructuring E:\FR\FM\17MYR2.SGM 17MYR2 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations plan in a judicial, administrative, or regulatory proceeding, except to the extent the judgment or settlement requires the provision of services that would respond to the COVID–19 public health emergency. That is, satisfaction of a settlement or judgment would not itself respond to COVID–19 with respect to the public health emergency or its negative economic impacts, unless the settlement requires the provision of services or aid that did directly respond to these needs, as described above. In addition, as described in Section V.III of this SUPPLEMENTARY INFORMATION, Treasury will establish reporting and record keeping requirements for uses within this category, including enhanced reporting requirements for certain types of uses. Question 1: Are there other types of services or costs that Treasury should consider as eligible uses to respond to the public health impacts of COVID–19? Describe how these respond to the COVID–19 public health emergency. Question 2: The interim final rule permits coverage of payroll and benefits costs of public health and safety staff primarily dedicated to COVID–19 response, as well as rehiring of public sector staff up to pre-pandemic levels. For how long should these measures remain in place? What other measures or presumptions might Treasury consider to assess the extent to which public sector staff are engaged in COVID–19 response, and therefore reimbursable, in an easily-administrable manner? Question 3: The interim final rule permits rehiring of public sector staff up to the government’s pre-pandemic staffing level, which is measured based on employment as of January 27, 2020. Does this approach adequately measure the pre-pandemic staffing level in a manner that is both accurate and easily administrable? Why or why not? Question 4: The interim final rule permits deposits to Unemployment Insurance Trust Funds, or using funds to pay back advances, up to the prepandemic balance. What, if any, conditions should be considered to ensure that funds repair economic impacts of the pandemic and strengthen unemployment insurance systems? Question 5: Are there other types of services or costs that Treasury should consider as eligible uses to respond to the negative economic impacts of COVID–19? Describe how these respond to the COVID–19 public health emergency. Question 6: What other measures, presumptions, or considerations could be used to assess ‘‘impacted industries’’ VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 affected by the COVID–19 public health emergency? Question 7: What are the advantages and disadvantages of using Qualified Census Tracts and services provided by Tribal governments to delineate where a broader range of eligible uses are presumed to be responsive to the public health and economic impacts of COVID–19? What other measures might Treasury consider? Are there other populations or geographic areas that were disproportionately impacted by the pandemic that should be explicitly included? Question 8: Are there other services or costs that Treasury should consider as eligible uses to respond to the disproportionate impacts of COVID–19 on low-income populations and communities? Describe how these respond to the COVID–19 public health emergency or its negative economic impacts, including its exacerbation of pre-existing challenges in these areas. Question 9: The interim final rule includes eligible uses to support affordable housing and stronger neighborhoods in disproportionatelyimpacted communities. Discuss the advantages and disadvantages of explicitly including other uses to support affordable housing and stronger neighborhoods, including rehabilitation of blighted properties or demolition of abandoned or vacant properties. In what ways does, or does not, this potential use address public health or economic impacts of the pandemic? What considerations, if any, could support use of Fiscal Recovery Funds in ways that do not result in resident displacement or loss of affordable housing units? B. Premium Pay Fiscal Recovery Funds payments may be used by recipients to provide premium pay to eligible workers performing essential work during the COVID–19 public health emergency or to provide grants to third-party employers with eligible workers performing essential work.95 These are workers who have been and continue to be relied on to maintain continuity of operations of essential critical infrastructure sectors, including those who are critical to protecting the health and wellbeing of their communities. Since the start of the COVID–19 public health emergency in January 2020, essential workers have put their physical wellbeing at risk to meet the daily needs of their communities and to provide care for others. In the course of this work, many essential workers have 95 Sections PO 00000 602(c)(1)(B), 603(c)(1)(B) of the Act. Frm 00013 Fmt 4701 Sfmt 4700 26797 contracted or died of COVID–19.96 Several examples reflect the severity of the health impacts for essential workers. Meat processing plants became ‘‘hotspots’’ for transmission, with 700 new cases reported at a single plant on a single day in May 2020.97 In New York City, 120 employees of the Metropolitan Transit Authority were estimated to have died due to COVID–19 by mid-May 2020, with nearly 4,000 testing positive for the virus.98 Furthermore, many essential workers are people of color or low-wage workers.99 These workers, in particular, have borne a disproportionate share of the health and economic impacts of the pandemic. Such workers include: • Staff at nursing homes, hospitals, and home care settings; • Workers at farms, food production facilities, grocery stores, and restaurants; • Janitors and sanitation workers; • Truck drivers, transit staff, and warehouse workers; • Public health and safety staff; • Childcare workers, educators, and other school staff; and • Social service and human services staff. During the public health emergency, employers’ policies on COVID–19related hazard pay have varied widely, with many essential workers not yet compensated for the heightened risks they have faced and continue to face.100 96 See, e.g., Centers for Disease Control and Prevention, COVID Data Tracker: Cases & Death among Healthcare Personnel, https://covid.cdc.gov/ covid-data-tracker/#health-care-personnel (last visited May 4, 2021); Centers for Disease Control and Prevention, COVID Data Tracker: Confirmed COVID–19 Cases and Deaths among Staff and Rate per 1,000 Resident-Weeks in Nursing Homes, by Week—United States, https://covid.cdc.gov/coviddata-tracker/#nursing-home-staff (last visited May 4, 2021). 97 See, e.g., The Lancet, The plight of essential workers during the COVID–19 pandemic, Vol. 395, Issue 10237:1587 (May 23, 2020), available at https://www.thelancet.com/journals/lancet/article/ PIIS0140-6736%2820%2931200-9/fulltext. 98 Id. 99 Joanna Gaitens et al., Covid–19 and essential workers: A narrative review of health outcomes and moral injury, Int’l J. of Envtl. Research and Pub. Health 18(4):1446 (Feb. 4, 2021), available at https://pubmed.ncbi.nlm.nih.gov/33557075/; Tiana N. Rogers et al., Racial Disparities in COVID–19 Mortality Among Essential Workers in the United States, World Med. & Health policy 12(3):311–27 (Aug. 5, 2020), available at https:// onlinelibrary.wiley.com/doi/full/10.1002/wmh3.358 (finding that vulnerability to coronavirus exposure was increased among non-Hispanic blacks, who disproportionately occupied the top nine essential occupations). 100 Economic Policy Institute, Only 30% of those working outside their home are receiving hazard pay (June 16, 2020), https://www.epi.org/press/only30-of-those-working-outside-their-home-arereceiving-hazard-pay-black-and-hispanic-workersare-most-concerned-about-bringing-thecoronavirus-home/. E:\FR\FM\17MYR2.SGM 17MYR2 26798 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations Many of these workers earn lower wages on average and live in socioeconomically vulnerable communities as compared to the general population.101 A recent study found that 25 percent of essential workers were estimated to have low household income, with 13 percent in high-risk households.102 The low pay of many essential workers makes them less able to cope with the financial consequences of the pandemic or their work-related health risks, including working hours lost due to sickness or disruptions to childcare and other daily routines, or the likelihood of COVID–19 spread in their households or communities. Thus, the threats and costs involved with maintaining the ongoing operation of vital facilities and services have been, and continue to be, borne by those that are often the most vulnerable to the pandemic. The added health risk to essential workers is one prominent way in which the pandemic has amplified pre-existing socioeconomic inequities. The Fiscal Recovery Funds will help respond to the needs of essential workers by allowing recipients to remunerate essential workers for the elevated health risks they have faced and continue to face during the public health emergency. To ensure that premium pay is targeted to workers that faced or face heightened risks due to the character of their work, the interim final rule defines essential work as work involving regular in-person interactions or regular physical handling of items that were also handled by others. A worker would not be engaged in essential work and, accordingly may not receive premium pay, for telework performed from a residence. Sections 602(g)(2) and 603(g)(2) define eligible worker to mean ‘‘those workers needed to maintain continuity of operations of essential critical infrastructure sectors and additional sectors as each Governor of a State or territory, or each Tribal government, may designate as critical to protect the health and well-being of the residents of their State, territory, or Tribal government.’’ 103 The rule incorporates this definition and provides a list of industries recognized as essential critical infrastructure sectors.104 These sectors include healthcare, public health and safety, childcare, education, sanitation, transportation, and food production and services, among others 101 McCormack, supra note 37. 102 Id. 103 Sections 602(g)(2), 603(g)(2) of the Act. 104 The list of critical infrastructure sectors provided in the interim final rule is based on the list of essential workers under The Heroes Act, H.R. 6800, 116th Cong. (2020). VerDate Sep<11>2014 as noted above. As provided under sections 602(g)(2) and 603(g)(2), the chief executive of each recipient has discretion to add additional sectors to this list, so long as additional sectors are deemed critical to protect the health and well-being of residents. In providing premium pay to essential workers or grants to eligible employers, a recipient must consider whether the pay or grant would ‘‘respond to’’ to the worker or workers performing essential work. Premium pay or grants provided under this section respond to workers performing essential work if it addresses the heightened risk to workers who must be physically present at a jobsite and, for many of whom, the costs associated with illness were hardest to bear financially. Many of the workers performing critical essential services are low- or moderate-income workers, such as those described above. The ARPA recognizes this by defining premium pay to mean an amount up to $13 per hour in addition to wages or remuneration the worker otherwise receives and in an aggregate amount not to exceed $25,000 per eligible worker. To ensure the provision is implemented in a manner that compensates these workers, the interim final rule provides that any premium pay or grants provided using the Fiscal Recovery Funds should prioritize compensation of those lower income eligible workers that perform essential work. As such, providing premium pay to eligible workers responds to such workers by helping address the disparity between the critical services and risks taken by essential workers and the relatively low compensation they tend to receive in exchange. If premium pay would increase a worker’s total pay above 150 percent of their residing state’s average annual wage for all occupations, as defined by the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics, or their residing county’s average annual wage, as defined by the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics, whichever is higher, on an annual basis, the State, local, or Tribal government must provide Treasury and make publicly available, whether for themselves or on behalf of a grantee, a written justification of how the premium pay or grant is responsive to workers performing essential worker during the public health emergency.105 19:28 May 14, 2021 Jkt 253001 105 County median annual wage is taken to be that of the metropolitan or nonmetropolitan area that includes the county. See U.S. Bureau of Labor Statistics, State Occupational Employment and Wage Estimates, https://www.bls.gov/oes/current/ oessrcst.htm (last visited May 1, 2021); U.S. Bureau PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 The threshold of 150 percent for requiring additional written justification is based on an analysis of the distribution of labor income for a sample of 20 occupations that generally correspond to the essential workers as defined in the interim final rule.106 For these occupations, labor income for the vast majority of workers was under 150 percent of average annual labor income across all occupations. Treasury anticipates that the threshold of 150 percent of the annual average wage will be greater than the annual average wage of the vast majority of eligible workers performing essential work. These enhanced reporting requirements help to ensure grants are directed to essential workers in critical infrastructure sectors and responsive to the impacts of the pandemic observed among essential workers, namely the mis-alignment between health risks and compensation. Enhanced reporting also provides transparency to the public. Finally, using a localized measure reflects differences in wages and cost of living across the country, making this standard administrable and reflective of essential worker incomes across a diverse range of geographic areas. Furthermore, because premium pay is intended to compensate essential workers for heightened risk due to COVID–19, it must be entirely additive to a worker’s regular rate of wages and other remuneration and may not be used to reduce or substitute for a worker’s normal earnings. The definition of premium pay also clarifies that premium pay may be provided retrospectively for work performed at any time since the start of the COVID– 19 public health emergency, where those workers have yet to be compensated adequately for work previously performed.107 Treasury encourages recipients to prioritize providing retrospective premium pay where possible, recognizing that many essential workers have not yet received additional compensation for work conducted over the course of many of Labor Statistics, May 2020 Metropolitan and Nonmetropolitan Area Estimates listed by county or town, https://www.bls.gov/oes/current/county_ links.htm (last visited May 1, 2021). 106 Treasury performed this analysis with data from the U.S. Census Bureau’s 2019 Annual Social and Economic Supplement. In determining which occupations to include in this analysis, Treasury excluded management and supervisory positions, as such positions may not necessarily involve regular in-person interactions or physical handling of items to the same extent as non-managerial positions. 107 However, such compensation must be ‘‘in addition to’’ remuneration or wages already received. That is, employers may not reduce such workers’ current pay and use Fiscal Recovery Funds to compensate themselves for premium pay previously provided to the worker. E:\FR\FM\17MYR2.SGM 17MYR2 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations months. Essential workers who have already earned premium pay for essential work performed during the COVID–19 public health emergency remain eligible for additional payments, and an essential worker may receive both retrospective premium pay for prior work as well as prospective premium pay for current or ongoing work. To ensure any grants respond to the needs of essential workers and are made in a fair and transparent manner, the rule imposes some additional reporting requirements for grants to third-party employers, including the public disclosure of grants provided. See Section VIII of this SUPPLEMENTARY INFORMATION, discussing reporting requirements. In responding to the needs of essential workers, a grant to an employer may provide premium pay to eligible workers performing essential work, as these terms are defined in the interim final rule and discussed above. A grant provided to an employer may also be for essential work performed by eligible workers pursuant to a contract. For example, if a municipality contracts with a third party to perform sanitation work, the third-party contractor could be eligible to receive a grant to provide premium pay for these eligible workers. Question 10: Are there additional sectors beyond those listed in the interim final rule that should be considered essential critical infrastructure sectors? Question 11: What, if any, additional criteria should Treasury consider to ensure that premium pay responds to essential workers? Question 12: What consideration, if any, should be given to the criteria on salary threshold, including measure and level, for requiring written justification? C. Revenue Loss Recipients may use payments from the Fiscal Recovery Funds for the provision of government services to the extent of the reduction in revenue experienced due to the COVID–19 public health emergency.108 Pursuant to sections 602(c)(1)(C) and 603(c)(1)(C) of the Act, a recipient’s reduction in revenue is measured relative to the revenue collected in the most recent full fiscal year prior to the emergency. Many State, local, and Tribal governments are experiencing significant budget shortfalls, which can have a devastating impact on communities. State government tax revenue from major sources were down 4.3 percent in the six months ended September 2020, relative to the same 108 ARPA, supra note 16. VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 period 2019.109 At the local level, nearly 90 percent of cities have reported being less able to meet the fiscal needs of their communities and, on average, cities expect a double-digit decline in general fund revenues in their fiscal year 2021.110 Similarly, surveys of Tribal governments and Tribal enterprises found majorities of respondents reporting substantial cost increases and revenue decreases, with Tribal governments reporting reductions in healthcare, housing, social services, and economic development activities as a result of reduced revenues.111 These budget shortfalls are particularly problematic in the current environment, as State, local, and Tribal governments work to mitigate and contain the COVID–19 pandemic and help citizens weather the economic downturn. Further, State, local, and Tribal government budgets affect the broader economic recovery. During the period following the 2007–2009 recession, State and local government budget pressures led to fiscal austerity that was a significant drag on the overall economic recovery.112 Inflationadjusted State and local government revenue did not return to the previous peak until 2013,113 while State, local, and Tribal government employment did not recover to its prior peak for over a decade, until August 2019—just a few months before the COVID–19 public health emergency began.114 109 Major sources include personal income tax, corporate income tax, sales tax, and property tax. See Lucy Dadayan., States Reported Revenue Growth in July–September Quarter, Reflecting Revenue Shifts from the Prior Quarter, State Tax and Econ. Rev. (Q. 3, 2020), available at https:// www.urban.org/sites/default/files/publication/ 103938/state-tax-and-economic-review-2020-q3_ 0.pdf. 110 National League of Cities, City Fiscal Conditions (2020), available at https://www.nlc.org/ wp-content/uploads/2020/08/City_Fiscal_ Conditions_2020_FINAL.pdf. 111 Surveys conducted by the Center for Indian Country Development at the Federal Reserve Bank of Minneapolis in March, April, and September 2020. See Moreno & Sobrepena, supra note 73. 112 See, e.g., Fitzpatrick, Haughwout & Setren, Fiscal Drag from the State and Local Sector?, Liberty Street Economics Blog, Federal Reserve Bank of New York (June 27, 2012), https:// www.libertystreeteconomics.newyorkfed.org/2012/ 06/fiscal-drag-from-the-state-and-local-sector.html; Jiri Jonas, Great Recession and Fiscal Squeeze at U.S. Subnational Government Level, IMF Working Paper 12/184, (July 2012), available at https:// www.imf.org/external/pubs/ft/wp/2012/ wp12184.pdf; Gordon, supra note 9. 113 State and local government general revenue from own sources, adjusted for inflation using the GDP price index. U.S. Census Bureau, Annual Survey of State Government Finances and U.S. Bureau of Economic Analysis, National Income and Product Accounts. 114 U.S. Bureau of Labor Statistics, All Employees, State Government [CES9092000001] and All Employees, Local Government [CES9093000001], PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 26799 Sections 602(c)(1)(C) and 603(c)(1)(C) of the Act allow recipients facing budget shortfalls to use payments from the Fiscal Recovery Funds to avoid cuts to government services and, thus, enable State, local, and Tribal governments to continue to provide valuable services and ensure that fiscal austerity measures do not hamper the broader economic recovery. The interim final rule implements these provisions by establishing a definition of ‘‘general revenue’’ for purposes of calculating a loss in revenue and by providing a methodology for calculating revenue lost due to the COVID–19 public health emergency. General Revenue. The interim final rule adopts a definition of ‘‘general revenue’’ based largely on the components reported under ‘‘General Revenue from Own Sources’’ in the Census Bureau’s Annual Survey of State and Local Government Finances, and for purposes of this interim final rule, helps to ensure that the components of general revenue would be calculated in a consistent manner.115 By relying on a methodology that is both familiar and comprehensive, this approach minimizes burden to recipients and provides consistency in the measurement of general revenue across a diverse set of recipients. The interim final rule defines the term ‘‘general revenue’’ to include revenues collected by a recipient and generated from its underlying economy and would capture a range of different types of tax revenues, as well as other types of revenue that are available to support government services.116 In calculating revenue, recipients should sum across all revenue streams covered as general revenue. This approach minimizes the administrative burden for recipients, provides for greater consistency across recipients, and presents a more accurate representation of the overall impact of retrieved from FRED, Federal Reserve Bank of St. Louis, https://fred.stlouisfed.org/series/ CES9092000001 and https://fred.stlouisfed.org/ series/CES9093000001 (last visited Apr. 27, 2021). 115 U.S. Census Bureau, Annual Survey of State and Local Government Finances, https:// www.census.gov/programs-surveys/govfinances.html (last visited Apr. 30, 2021). 116 The interim final rule would define tax revenue in a manner consistent with the Census Bureau’s definition of tax revenue, with certain changes (i.e., inclusion of revenue from liquor stores and certain intergovernmental transfers). Current charges are defined as ‘‘charges imposed for providing current services or for the sale of products in connection with general government activities.’’ It includes revenues such as public education institution, public hospital, and toll revenues. Miscellaneous general revenue comprises of all other general revenue of governments from their own sources (i.e., other than liquor store, utility, and insurance trust revenue), including rents, royalties, lottery proceeds, and fines. E:\FR\FM\17MYR2.SGM 17MYR2 26800 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations the COVID–19 public health emergency on a recipient’s revenue, rather than relying on financial reporting prepared by each recipient, which vary in methodology used and which generally aggregates revenue by purpose rather than by source.117 Consistent with the Census Bureau’s definition of ‘‘general revenue from own sources,’’ the definition of general revenue in the interim final rule would exclude refunds and other correcting transactions, proceeds from issuance of debt or the sale of investments, and agency or private trust transactions. The definition of general revenue also would exclude revenue generated by utilities and insurance trusts. In this way, the definition of general revenue focuses on sources that are generated from economic activity and are available to fund government services, rather than a fund or administrative unit established to account for and control a particular activity.118 For example, public utilities typically require financial support from the State, local, or Tribal government, rather than providing revenue to such government, and any revenue that is generated by public utilities typically is used to support the public utility’s continued operation, rather than being used as a source of revenue to support government services generally. The definition of general revenue would include all revenue from Tribal enterprises, as this revenue is generated from economic activity and is available to fund government services. Tribes are not able to generate revenue through taxes in the same manner as State and local governments and, as a result, Tribal enterprises are critical sources of revenue for Tribal governments that enable Tribal governments to provide a range of services, including elder care, health clinics, wastewater management, and forestry. Finally, the term ‘‘general revenue’’ includes intergovernmental transfers between State and local governments, but excludes intergovernmental transfers from the Federal Government, including Federal transfers made via a State to a local government pursuant to the CRF or as part of the Fiscal Recovery Funds. States and local governments often share or collect revenue on behalf of one another, which results in 117 Fund-oriented reporting, such as what is used under the Governmental Accounting Standards Board (GASB), focuses on the types of uses and activities funded by the revenue, as opposed to the economic activity from which the revenue is sourced. See Governmental Accounting Standards Series, Statement No. 54 of the Governmental Accounting Standards Board: Fund Balance Reporting and Governmental Fund Type Definitions, No. 287–B (Feb. 2009). 118 Supra note 116. VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 intergovernmental transfers. When attributing revenue to a unit of government, the Census Bureau’s methodology considers which unit of government imposes, collects, and retains the revenue and assigns the revenue to the unit of government that meets at least two of those three factors.119 For purposes of measuring loss in general revenue due to the COVID–19 public health emergency and to better allow continued provision of government services, the retention and ability to use the revenue is a more critical factor. Accordingly, and to better measure the funds available for the provision of government services, the definition of general revenue would include intergovernmental transfers from States or local governments other than funds transferred pursuant to ARPA, CRF, or another Federal program. This formulation recognizes the importance of State transfers for local government revenue.120 Calculation of Loss. In general, recipients will compute the extent of the reduction in revenue by comparing actual revenue to a counterfactual trend representing what could have been expected to occur in the absence of the pandemic. This approach measures losses in revenue relative to the most recent fiscal year prior to the COVID–19 public health emergency by using the most recent pre-pandemic fiscal year as the starting point for estimates of revenue growth absent the pandemic. In other words, the counterfactual trend starts with the last full fiscal year prior to the COVID–19 public health emergency and then assumes growth at a constant rate in the subsequent years. Because recipients can estimate the revenue shortfall at multiple points in time throughout the covered period as revenue is collected, this approach accounts for variation across recipients in the timing of pandemic impacts.121 Although revenue may decline for 119 U.S. Census Bureau, Government Finance and Employment Classification Manual (Dec. 2000), https://www2.census.gov/govs/class/classfull.pdf. 120 For example, in 2018, state transfers to localities accounted for approximately 27 percent of local revenues. U.S. Census Bureau, Annual Survey of State and Local Government Finances, Table 1 (2018), https://www.census.gov/data/datasets/2018/ econ/local/public-use-datasets.html. 121 For example, following the 2007–09 recession, local government property tax collections did not begin to decline until 2011, suggesting that property tax collection declines can lag downturns. See U.S. Bureau of Economic Analysis, Personal current taxes: State and local: Property taxes [S210401A027NBEA], retrieved from Federal Reserve Economic Data, Federal Reserve Bank of St. Louis, https://fred.stlouisfed.org/graph/?g=r3YI (last visited Apr. 22, 2021). Estimating the reduction in revenue at points throughout the covered period will allow for this type of lagged effect to be taken into account during the covered period. PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 reasons unrelated to the COVID–19 public health emergency, to minimize the administrative burden on recipients and taking into consideration the devastating effects of the COVID–19 public health emergency, any diminution in actual revenues relative to the counterfactual pre-pandemic trend would be presumed to have been due to the COVID–19 public health emergency. For purposes of measuring revenue growth in the counterfactual trend, recipients may use a growth adjustment of either 4.1 percent per year or the recipient’s average annual revenue growth over the three full fiscal years prior to the COVID–19 public health emergency, whichever is higher. The option of 4.1 percent represents the average annual growth across all State and local government ‘‘General Revenue from Own Sources’’ in the most recent three years of available data.122 This approach provides recipients with a standardized growth adjustment when calculating the counterfactual revenue trend and thus minimizes administrative burden, while not disadvantaging recipients with revenue growth that exceeded the national average prior to the COVID–19 public health emergency by permitting these recipients to use their own revenue growth rate over the preceding three years. Recipients should calculate the extent of the reduction in revenue as of four points in time: December 31, 2020; December 31, 2021; December 31, 2022; and December 31, 2023. To calculate the extent of the reduction in revenue at each of these dates, recipients should follow a four-step process: • Step 1: Identify revenues collected in the most recent full fiscal year prior to the public health emergency (i.e., last full fiscal year before January 27, 2020), called the base year revenue. • Step 2: Estimate counterfactual revenue, which is equal to base year revenue * [(1 + growth adjustment) ∧ (n/ 12)], where n is the number of months elapsed since the end of the base year to the calculation date, and growth adjustment is the greater of 4.1 percent and the recipient’s average annual revenue growth in the three full fiscal 122 Together with revenue from liquor stores from 2015 to 2018. This estimate does not include any intergovernmental transfers. A recipient using the three-year average to calculate their growth adjustment must be based on the definition of general revenue, including treatment of intergovernmental transfers. 2015–2018 represents the most recent available data. See U.S. Census Bureau, State & Local Government Finance Historical Datasets and Tables (2018), https:// www.census.gov/programs-surveys/gov-finances/ data/datasets.html. E:\FR\FM\17MYR2.SGM 17MYR2 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations years prior to the COVID–19 public health emergency. • Step 3: Identify actual revenue, which equals revenues collected over the past twelve months as of the calculation date. • Step 4: The extent of the reduction in revenue is equal to counterfactual percent is greater than the recipient’s average annual revenue growth in the three full fiscal years prior to the public health emergency. Furthermore, this recipient’s base year ends June 30. In this illustration, n (months elapsed) and counterfactual revenue would be equal to: revenue less actual revenue. If actual revenue exceeds counterfactual revenue, the extent of the reduction in revenue is set to zero for that calculation date. For illustration, consider a hypothetical recipient with base year revenue equal to 100. In Step 2, the hypothetical recipient finds that 4.1 As of: 12/31/2020 n (months elapsed) .......................................................................................... Counterfactual revenue: .................................................................................. 26801 12/31/2021 18 106.2 12/31/2022 30 110.6 42 115.1 12/31/2023 54 119.8 The overall methodology for calculating the reduction in revenue is illustrated in the figure below: 140 c::::::::J Base year revenue - 130 Extent of reduction in revenue -Actual revenue (last twelve months) - +- - Counterfactual revenue ---- ------------- 120 110 100 90 80 Jkt 253001 Frm 00017 Fmt 4701 Sfmt 4700 0cJ Q Q borrowed money would not be considered the provision of government services, as these financing expenses do not directly provide services or aid to citizens. Specifically, government services would not include interest or principal on any outstanding debt instrument, including, for example, short-term revenue or tax anticipation notes, or fees or issuance costs associated with the issuance of new debt. For the same reasons, government services would not include satisfaction of any obligation arising under or pursuant to a settlement agreement, judgment, consent decree, or judicially confirmed debt restructuring in a judicial, administrative, or regulatory proceeding, except if the judgment or settlement required the provision of government services. That is, satisfaction of a settlement or judgment itself is not a government service, unless the settlement required the provision of government services. In addition, replenishing financial reserves (e.g., rainy day or other reserve funds) would PO 00000 ~ ~'1, ,l1 not be considered provision of a government service, since such expenses do not directly relate to the provision of government services. Question 13: Are there sources of revenue that either should or should not be included in the interim final rule’s measure of ‘‘general revenue’’ for recipients? If so, discuss why these sources either should or should not be included. Question 14: In the interim final rule, recipients are expected to calculate the reduction in revenue on an aggregate basis. Discuss the advantages and disadvantages of, and any potential concerns with, this approach, including circumstances in which it could be necessary or appropriate to calculate the reduction in revenue by source. Question 15: Treasury is considering whether to take into account other factors, including actions taken by the recipient as well as the expiration of the COVID–19 public health emergency, in determining whether to presume that revenue losses are ‘‘due to’’ the COVID– E:\FR\FM\17MYR2.SGM 17MYR2 ER17MY21.002</GPH> Q 123 Pay-go infrastructure funding refers to the practice of funding capital projects with cash-onhand from taxes, fees, grants, and other sources, rather than with borrowed sums. 19:28 May 14, 2021 rlf1 Q l1 Upon receiving Fiscal Recovery Fund payments, recipients may immediately calculate revenue loss for the period ending December 31, 2020. Sections 602(c)(1)(C) and 603(c)(1)(C) of the Act provide recipients with broad latitude to use the Fiscal Recovery Funds for the provision of government services. Government services can include, but are not limited to, maintenance or pay-go funded building 123 of infrastructure, including roads; modernization of cybersecurity, including hardware, software, and protection of critical infrastructure; health services; environmental remediation; school or educational services; and the provision of police, fire, and other public safety services. However, expenses associated with obligations under instruments evidencing financial indebtedness for VerDate Sep<11>2014 ~" ~ "Q) ,:,-::f 26802 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations 19 public health emergency. Discuss the advantages and disadvantages of this presumption, including when, if ever, during the covered period it would be appropriate to reevaluate the presumption that all losses are attributable to the COVID–19 public health emergency. Question 16: Do recipients anticipate lagged revenue effects of the public health emergency? If so, when would these lagged effects be expected to occur, and what can Treasury to do support these recipients through its implementation of the program? Question 17: In the interim final rule, paying interest or principal on government debt is not considered provision of a government service. Discuss the advantages and disadvantages of this approach, including circumstances in which paying interest or principal on government debt could be considered provision of a government service. D. Investments in Infrastructure To assist in meeting the critical need for investments and improvements to existing infrastructure in water, sewer, and broadband, the Fiscal Recovery Funds provide funds to State, local, and Tribal governments to make necessary investments in these sectors. The interim final rule outlines eligible uses within each category, allowing for a broad range of necessary investments in projects that improve access to clean drinking water, improve wastewater and stormwater infrastructure systems, and provide access to high-quality broadband service. Necessary investments are designed to provide an adequate minimum level of service and are unlikely to be made using private sources of funds. Necessary investments include projects that are required to maintain a level of service that, at least, meets applicable health-based standards, taking into account resilience to climate change, or establishes or improves broadband service to unserved or underserved populations to reach an adequate level to permit a household to work or attend school, and that are unlikely to be met with private sources of funds.124 It is important that necessary investments in water, sewer, or broadband infrastructure be carried out in ways that produce high-quality infrastructure, avert disruptive and costly delays, and promote efficiency. Treasury encourages recipients to 124 Treasury notes that using funds to support or oppose collective bargaining would not be included as part of ‘‘necessary investments in water, sewer, or broadband infrastructure.’’ VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 ensure that water, sewer, and broadband projects use strong labor standards, including project labor agreements and community benefits agreements that offer wages at or above the prevailing rate and include local hire provisions, not only to promote effective and efficient delivery of high-quality infrastructure projects but also to support the economic recovery through strong employment opportunities for workers. Using these practices in construction projects may help to ensure a reliable supply of skilled labor that would minimize disruptions, such as those associated with labor disputes or workplace injuries. To provide public transparency on whether projects are using practices that promote on-time and on-budget delivery, Treasury will seek information from recipients on their workforce plans and practices related to water, sewer, and broadband projects undertaken with Fiscal Recovery Funds. Treasury will provide additional guidance and instructions on the reporting requirements at a later date. 1. Water and Sewer Infrastructure The ARPA provides funds to State, local, and Tribal governments to make necessary investments in water and sewer infrastructure.125 By permitting funds to be used for water and sewer infrastructure needs, Congress recognized the critical role that clean drinking water and services for the collection and treatment of wastewater and stormwater play in protecting public health. Understanding that State, local, and Tribal governments have a broad range of water and sewer infrastructure needs, the interim final rule provides these governments with wide latitude to identify investments in water and sewer infrastructure that are of the highest priority for their own communities, which may include projects on privately-owned infrastructure. The interim final rule does this by aligning eligible uses of the Fiscal Recovery Funds with the wide range of types or categories of projects that would be eligible to receive financial assistance through the Environmental Protection Agency’s (EPA) Clean Water State Revolving Fund (CWSRF) or Drinking Water State Revolving Fund (DWSRF).126 125 Sections 602(c)(1)(D), 603(c)(1)(D) of the Act. Protection Agency, Drinking Water State Revolving fund, https://www.epa.gov/ dwsrf (last visited Apr. 30, 2021); Environmental Protection Agency, Clean Water State Revolving Fund, https://www.epa.gov/cwsrf (last visited Apr. 30, 2021). 126 Environmental PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 Established by the 1987 amendments 127 to the Clean Water Act (CWA),128 the CWSRF provides financial assistance for a wide range of water infrastructure projects to improve water quality and address water pollution in a way that enables each State to address and prioritize the needs of their populations. The types of projects eligible for CWSRF assistance include projects to construct, improve, and repair wastewater treatment plants, control non-point sources of pollution, improve resilience of infrastructure to severe weather events, create green infrastructure, and protect waterbodies from pollution.129 Each of the 51 State programs established under the CWSRF have the flexibility to direct funding to their particular environmental needs, and each State may also have its own statutes, rules, and regulations that guide project eligibility.130 The DWSRF was modeled on the CWSRF and created as part of the 1996 amendments to the Safe Drinking Water Act (SDWA),131 with the principal objective of helping public water systems obtain financing for improvements necessary to protect public health and comply with drinking water regulations.132 Like the CWSRF, 127 Water Quality Act of 1987, Public Law 100– 4. 128 Federal Water Pollution Control Act as amended, codified at 33 U.S.C. 1251 et seq., common name (Clean Water Act). In 2009, the American Recovery and Reinvestment Act created the Green Project Reserve, which increased the focus on green infrastructure, water and energy efficient, and environmentally innovative projects. Public Law 111–5. The CWA was amended by the Water Resources Reform and Development Act of 2014 to further expand the CWSRF’s eligibilities. Public Law 113–121. The CWSRF’s eligibilities were further expanded in 2018 by the America’s Water Infrastructure Act of 2018, Public Law 115–270. 129 See Environmental Protection Agency, The Drinking Water State Revolving Funds: Financing America’s Drinking Water, EPA–816–R–00–023 (Nov. 2000), https://nepis.epa.gov/Exe/ZyPDF.cgi/ 200024WB.PDF?Dockey=200024WB.PDF; See also Environmental Protection Agency, Learn About the Clean Water State Revolving Fund, https:// www.epa.gov/cwsrf/learn-about-clean-water-staterevolving-fund-cwsrf (last visited Apr. 30, 2021). 130 33 U.S.C. 1383(c). See also Environmental Protection Agency, Overview of Clean Water State Revolving Fund Eligibilities (May 2016), https:// www.epa.gov/sites/production/files/2016-07/ documents/overview_of_cwsrf_eligibilities_may_ 2016.pdf; Claudia Copeland, Clean Water Act: A Summary of the Law, Congressional Research Service (Oct. 18, 2016), https://fas.org/sgp/crs/misc/ RL30030.pdf; Jonathan L Ramseur, Wastewater Infrastructure: Overview, Funding, and Legislative Developments, Congressional Research Service (May 22, 2018), https://fas.org/sgp/crs/misc/ R44963.pdf. 131 42 U.S.C. 300j–12. 132 Environmental Protection Agency, Drinking Water State Revolving Fund Eligibility Handbook, (June 2017), https://www.epa.gov/sites/production/ files/2017-06/documents/dwsrf_eligibility_ handbook_june_13_2017_updated_508_version.pdf; Environmental Protection Agency, Drinking Water E:\FR\FM\17MYR2.SGM 17MYR2 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations the DWSRF provides States with the flexibility to meet the needs of their populations.133 The primary use of DWSRF funds is to assist communities in making water infrastructure capital improvements, including the installation and replacement of failing treatment and distribution systems.134 In administering these programs, States must give priority to projects that ensure compliance with applicable health and environmental safety requirements; address the most serious risks to human health; and assist systems most in need on a per household basis according to State affordability criteria.135 By aligning use of Fiscal Recovery Funds with the categories or types of eligible projects under the existing EPA state revolving fund programs, the interim final rule provides recipients with the flexibility to respond to the needs of their communities while ensuring that investments in water and sewer infrastructure made using Fiscal Recovery Funds are necessary. As discussed above, the CWSRF and DWSRF were designed to provide funding for projects that protect public health and safety by ensuring compliance with wastewater and drinking water health standards.136 The need to provide funding through the state revolving funds suggests that these projects are less likely to be addressed with private sources of funding; for example, by remediating failing or inadequate infrastructure, much of which is publicly owned, and by addressing non-point sources of pollution. This approach of aligning with the EPA state revolving fund programs also supports expedited project identification and investment so that needed relief for the people and communities most affected by the pandemic can deployed expeditiously and have a positive impact on their health and wellbeing as soon as possible. Further, the interim final rule is intended to preserve flexibility for award recipients to direct funding to their own particular needs and priorities and would not preclude recipients from applying their own additional project eligibility criteria. Infrastructure Needs Survey and Assessment: Sixth Report to Congress (March 2018), https:// www.epa.gov/sites/production/files/2018-10/ documents/corrected_sixth_drinking_water_ infrastructure_needs_survey_and_assessment.pdf. 133 Id. 134 Id. 135 42 U.S.C. 300j–12(b)(3)(A). 136 Environmental Protection Agency, Learn About the Clean Water State Revolving Fund, https://www.epa.gov/cwsrf/learn-about-clean-waterstate-revolving-fund-cwsrf (last visited Apr. 30, 2021); 42 U.S.C. 300j–12. VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 In addition, responding to the immediate needs of the COVID–19 public health emergency may have diverted both personnel and financial resources from other State, local, and Tribal priorities, including projects to ensure compliance with applicable water health and quality standards and provide safe drinking and usable water.137 Through sections 602(c)(1)(D) and 603(c)(1)(D), the ARPA provides resources to address these needs. Moreover, using Fiscal Recovery Funds in accordance with the priorities of the CWA and SWDA to ‘‘assist systems most in need on a per household basis according to state affordability criteria’’ would also have the benefit of providing vulnerable populations with safe drinking water that is critical to their health and, thus, their ability to work and learn.138 Recipients may use Fiscal Recovery Funds to invest in a broad range of projects that improve drinking water infrastructure, such as building or upgrading facilities and transmission, distribution, and storage systems, including replacement of lead service lines. Given the lifelong impacts of lead exposure for children, and the widespread nature of lead service lines, Treasury encourages recipients to consider projects to replace lead service lines. Fiscal Recovery Funds may also be used to support the consolidation or establishment of drinking water systems. With respect to wastewater infrastructure, recipients may use Fiscal Recovery Funds to construct publicly owned treatment infrastructure, manage and treat stormwater or subsurface drainage water, facilitate water reuse, and secure publicly owned treatment works, among other uses. Finally, consistent with the CWSRF and DWSRF, Fiscal Recovery Funds may be used for cybersecurity needs to protect water or sewer infrastructure, such as developing effective cybersecurity practices and measures at drinking water systems and publicly owned treatment works. Many of the types of projects eligible under either the CWSRF or DWSRF also 137 House Committee on the Budget, State and Local Governments are in Dire Need of Federal Relief (Aug. 19, 2020), https://budget.house.gov/ publications/report/state-and-local-governmentsare-dire-need-federal-relief. 138 Environmental Protection Agency, Drinking Water State Revolving Fund (Nov. 2019), https:// www.epa.gov/sites/production/files/2019-11/ documents/fact_sheet_-_dwsrf_overview_final_ 0.pdf; Environmental Protection Agency, National Benefits Analysis for Drinking Water Regulations, https://www.epa.gov/sdwa/national-benefitsanalysis-drinking-water-regulations (last visited Apr. 30, 2020). PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 26803 support efforts to address climate change. For example, by taking steps to manage potential sources of pollution and preventing these sources from reaching sources of drinking water, projects eligible under the DWSRF and the ARPA may reduce energy required to treat drinking water. Similarly, projects eligible under the CWSRF include measures to conserve and reuse water or reduce the energy consumption of public water treatment facilities. Treasury encourages recipients to consider green infrastructure investments and projects to improve resilience to the effects of climate change. For example, more frequent and extreme precipitation events combined with construction and development trends have led to increased instances of stormwater runoff, water pollution, and flooding. Green infrastructure projects that support stormwater system resiliency could include rain gardens that provide water storage and filtration benefits, and green streets, where vegetation, soil, and engineered systems are combined to direct and filter rainwater from impervious surfaces. In cases of a natural disaster, recipients may also use Fiscal Recovery Funds to provide relief, such as interconnecting water systems or rehabilitating existing wells during an extended drought. Question 18: What are the advantages and disadvantages of aligning eligible uses with the eligible project type requirements of the DWSRF and CWSRF? What other water or sewer project categories, if any, should Treasury consider in addition to DWSRF and CWSRF eligible projects? Should Treasury consider a broader general category of water and sewer projects? Question 19: What additional water and sewer infrastructure categories, if any, should Treasury consider to address and respond to the needs of unserved, undeserved, or rural communities? How do these projects differ from DWSFR and CWSRF eligible projects? Question 20: What new categories of water and sewer infrastructure, if any, should Treasury consider to support State, local, and Tribal governments in mitigating the negative impacts of climate change? Discuss emerging technologies and processes that support resiliency of water and sewer infrastructure. Discuss any challenges faced by States and local governments when pursuing or implementing climate resilient infrastructure projects. Question 21: Infrastructure projects related to dams and reservoirs are generally not eligible under the CWSRF and DWSRF categories. Should Treasury consider expanding eligible E:\FR\FM\17MYR2.SGM 17MYR2 26804 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations exists, broadband access may be out of reach for millions of Americans because it is unaffordable, as the United States has some of the highest broadband prices in the Organisation for Economic Co-operation and Development (OECD).141 There are disparities in availability as well; historically, 2. Broadband Infrastructure Americans living in territories and The COVID–19 public health Tribal lands as well as rural areas have emergency has underscored the disproportionately lacked sufficient importance of universally available, broadband infrastructure.142 Moreover, high-speed, reliable, and affordable rapidly growing demand has, and will broadband coverage as millions of likely continue to, quickly outpace Americans rely on the internet to infrastructure capacity, a phenomenon participate in, among critical activities, acknowledged by various states around the country that have set scalability remote school, healthcare, and work. requirements to account for this Recognizing the need for such anticipated growth in demand.143 connectivity, the ARPA provides funds The interim final rule provides that to State, territorial, local, and Tribal eligible investments in broadband are governments to make necessary those that are designed to provide investments in broadband services meeting adequate speeds and infrastructure. are provided to unserved and The National Telecommunications and Information Administration (NTIA) underserved households and businesses. Understanding that States, highlighted the growing necessity of territories, localities, and Tribal broadband in daily lives through its governments have a wide range of analysis of NTIA Internet Use Survey varied broadband infrastructure needs, data, noting that Americans turn to the interim final rule provides award broadband internet access service for recipients with flexibility to identify the every facet of daily life including work, study, and healthcare.139 With increased specific locations within their use of technology for daily activities and communities to be served and to otherwise design the project. the movement by many businesses and Under the interim final rule, eligible schools to operating remotely during the projects are expected to be designed to pandemic, broadband has become even deliver, upon project completion, more critical for people across the service that reliably meets or exceeds country to carry out their daily lives. symmetrical upload and download By at least one measure, however, speeds of 100 Mbps. There may be tens of millions of Americans live in instances in which it would not be areas where there is no broadband practicable for a project to deliver such infrastructure that provides download speeds greater than 25 Mbps and upload service speeds because of the geography, topography, or excessive costs speeds of 3 Mbps.140 By contrast, as associated with such a project. In these noted below, many households use instances, the affected project would be upload and download speeds of 100 Mbps to meet their daily needs. Even in expected to be designed to deliver, upon project completion, service that reliably areas where broadband infrastructure meets or exceeds 100 Mbps download and between at least 20 Mbps and 100 139 See, e.g., https://www.ntia.gov/blog/2020/ Mbps upload speeds and be scalable to more-half-american-households-used-internetinfrastructure under the interim final rule to include dam and reservoir projects? Discuss public health, environmental, climate, or equity benefits and costs in expanding the eligibility to include these types of projects. health-related-activities-2019-ntia-data-show; https://www.ntia.gov/blog/2020/nearly-thirdamerican-employees-worked-remotely-2019-ntiadata-show; and generally, https://www.ntia.gov/ data/digital-nation-data-explorer. 140 As an example, data from the Federal Communications Commission shows that as of June 2020, 9.07 percent of the U.S. population had no available cable or fiber broadband providers providing greater than 25 Mbps download speeds and 3 Mbps upload speeds. Availability was significantly less for rural versus urban populations, with 35.57 percent of the rural population lacking such access, compared with 2.57 percent of the urban population. Availability was also significantly less for tribal versus non-tribal populations, with 35.93 percent of the tribal population lacking such access, compared with 8.74 of the non-tribal population. Federal Communications Commission, Fixed Broadband Deployment, https://broadbandmap.fcc.gov/#/ (last visited May 9, 2021). VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 141 How Do U.S. Internet Costs Compare To The Rest Of The World?, BroadbandSearch Blog Post, available at https://www.broadbandsearch.net/blog/ internet-costs-compared-worldwide. 142 See, e.g., Federal Communications Commission, Fourteenth Broadband Deployment Report, available at https://docs.fcc.gov/public/ attachments/FCC-21-18A1.pdf. 143 See, e.g., Illinois Department of Commerce & Economic Opportunity, Broadband Grants, h (last visited May 9, 2021), https://www2.illinois.gov/ dceo/ConnectIllinois/Pages/BroadbandGrants.aspx; Kansas Office of Broadband Development, Broadband Acceleration Grant, https:// www.kansascommerce.gov/wp-content/uploads/ 2020/11/Broadband-Acceleration-Grant.pdf (last visited May 9, 2021); New York State Association of Counties, Universal Broadband: Deploying High Speed Internet Access in NYS (Jul. 2017), https:// www.nysac.org/files/BroadbandUpdate Report2017(1).pdf. PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 a minimum of 100 Mbps symmetrical for download and upload speeds.144 In setting these standards, Treasury identified speeds necessary to ensure that broadband infrastructure is sufficient to enable users to generally meet household needs, including the ability to support the simultaneous use of work, education, and health applications, and also sufficiently robust to meet increasing household demands for bandwidth. Treasury also recognizes that different communities and their members may have a broad range of internet needs and that those needs may change over time. In considering the appropriate speed requirements for eligible projects, Treasury considered estimates of typical households demands during the pandemic. Using the Federal Communication Commission’s (FCC) Broadband Speed Guide, for example, a household with two telecommuters and two to three remote learners today are estimated to need 100 Mbps download to work simultaneously.145 In households with more members, the demands may be greater, and in households with fewer members, the demands may be less. In considering the appropriate speed requirements for eligible projects, Treasury also considered data usage patterns and how bandwidth needs have changed over time for U.S. households and businesses as people’s use of technology in their daily lives has evolved. In the few years preceding the pandemic, market research data showed that average upload speeds in the United States surpassed over 10 Mbps in 2017 146 and continued to increase significantly, with the average upload speed as of November, 2019 increasing to 48.41 Mbps,147 attributable, in part to a shift to using broadband and the internet by individuals and businesses 144 This scalability threshold is consistent with scalability requirements used in other jurisdictions. Id. 145 Federal Communications Commission, Broadband Speed Guide, https://www.fcc.gov/ consumers/guides/broadband-speed-guide (last visited Apr. 30, 2021). 146 Letter from Lisa R. Youngers, President and CEO of Fiber Broadband Association to FCC, WC Docket No. 19–126 (filed Jan. 3, 2020), including an Appendix with research from RVA LLC, Data Review Of The Importance of Upload Speeds (Jan. 2020), and Ookla speed test data, available at https://ecfsapi.fcc.gov/file/101030085118517/ FCC%20RDOF%20Jan%203%20 Ex%20Parte.pdf.Additional information on historic growth in data usage is provided in Schools, Health & Libraries Broadband Coalition, Common Sense Solutions for Closing the Digital Divide, Apr. 29, 2021. 147 Id. See also United States’s Mobile and Broadband internet Speeds—Speedtest Global Index, available at https://www.speedtest.net/ global-index/united-states#fixed. E:\FR\FM\17MYR2.SGM 17MYR2 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations to create and share content using video sharing, video conferencing, and other applications.148 The increasing use of data accelerated markedly during the pandemic as households across the country became increasingly reliant on tools and applications that require greater internet capacity, both to download data but also to upload data. Sending information became as important as receiving it. A video consultation with a healthcare provider or participation by a child in a live classroom with a teacher and fellow students requires video to be sent and received simultaneously.149 As an example, some video conferencing technology platforms indicate that download and upload speeds should be roughly equal to support two-way, interactive video meetings.150 For both work and school, client materials or completed school assignments, which may be in the form of PDF files, videos, or graphic files, also need to be shared with others. This is often done by uploading materials to a collaboration site, and the upload speed available to a user can have a significant impact on the time it takes for the content to be shared with others. 151 These activities require significant capacity from home internet connections to both download and upload data, especially when there are multiple individuals in one household engaging in these activities simultaneously. This need for increased broadband capacity during the pandemic was reflected in increased usage patterns seen over the last year. As OpenVault noted in recent advisories, the pandemic significantly increased the amount of data users consume. Among data users observed by OpenVault, persubscriber average data usage for the fourth quarter of 2020 was 482.6 gigabytes per month, representing a 40 percent increase over the 344 gigabytes consumed in the fourth quarter of 2019 and a 26 percent increase over the third quarter 2020 average of 383.8 148 Id. 149 One high definition Zoom meeting or class requires approximately 3.8 Mbps/3.0 Mbps (up/ down). 150 See, e.g., Zoom, System Requirements for Windows, macOS, and Linux, https:// support.zoom.us/hc/en-us/articles/201362023System-requirements-for-Windows-macOS-andLinux#h_d278c327-e03d-4896-b19a-96a8f3c0c69c (last visited May 8, 2021). 151 By one estimate, to upload a one gigabit video file to YouTube would take 15 minutes at an upload speed of 10 Mbps compared with 1 minute, 30 seconds at an upload speed of 100 Mbps, and 30 seconds at an upload speed of 300 Mbps. Reviews.org: What is Symmetrical internet? (March 2020). VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 gigabytes.152 OpenVault also noted significant increases in upstream usage among the data users it observed, with upstream data usage growing 63 percent—from 19 gigabytes to 31 gigabytes—between December, 2019 and December, 2020.153 According to an OECD Broadband statistic from June 2020, the largest percentage of U.S. broadband subscribers have services providing speeds between 100 Mbps and 1 Gbps.154 Jurisdictions and Federal programs are increasingly responding to the growing demands of their communities for both heightened download and upload speeds. For example, Illinois now requires 100 Mbps symmetrical service as the construction standard for its state broadband grant programs. This standard is also consistent with speed levels, particularly download speed levels, prioritized by other Federal programs supporting broadband projects. Bids submitted as part of the FCC in its Rural Digital Opportunity Fund (RDOF), established to support the construction of broadband networks in rural communities across the country, are given priority if they offer faster service, with the service offerings of 100 Mbps download and 20 Mbps upload being included in the ‘‘above baseline’’ performance tier set by the FCC.155 The Broadband Infrastructure Program (BBIP) 156 of the Department of Commerce, which provides Federal funding to deploy broadband 152 OVBI: Covid-19 Drove 15 percent Increase in Broadband Traffic in 2020, OpenVault, Quarterly Advisory, (Feb. 10, 2021), available at https:// openvault.com/ovbi-covid-19-drove-51-increase-inbroadband-traffic-in-2020; See OpenVault’s data set incorporates information on usage by subscribers across multiple continents, including North America and Europe. Additional data and detail on increases in the amount of data users consume and the broadband speeds they are using is provided in OpenVault Broadband Insights Report Q4, Quarterly Advisory (Feb. 10, 2021), available at https://openvault.com/complimentary-report-4q20/. 153 OVBI Special Report: 202 Upstream Growth Nearly 4X of Pre-Pandemic Years, OpenVault, Quarterly Advisory, (April 1, 20201), available at https://openvault.com/ovbi-special-report-2020upstream-growth-rate-nearly-4x-of-pre-pandemicyears/; Additional data is provided in OpenVault Broadband Insights Pandemic Impact on Upstream Broadband Usage and Network Capacity, available at https://openvault.com/upstream-whitepaper/. 154 Organisation for Economic Co-operation and Development, Fixed broadband subscriptions per 100 inhabitants, per speed tiers (June 2020), https:// www.oecd.org/sti/broadband/5.1-FixedBBSpeedTiers-2020-06.xls www.oecd.org/sti/ broadband/broadband-statistics. 155 Rural Digital Opportunity Fund, Report and Order, 35 FCC Rcd 686, 690, para. 9 (2020), available at https://www.fcc.gov/document/fcclaunches-20-billion-rural-digital-opportunity-fund0. 156 The BIPP was authorized by the Consolidated Appropriations Act, 2021, Section 905, Public Law 116–260, 134 Stat. 1182 (Dec. 27, 2020). PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 26805 infrastructure to eligible service areas of the country also prioritizes projects designed to provide broadband service with a download speed of not less than 100 Mbps and an upload speed of not less than 20 Mbps.157 The 100 Mbps upload and download speeds will support the increased and growing needs of households and businesses. Recognizing that, in some instances, 100 Mbps upload speed may be impracticable due to geographical, topographical, or financial constraints, the interim final rule permits upload speeds of between at least 20 Mbps and 100 Mbps in such instances. To provide for investments that will accommodate technologies requiring symmetry in download and upload speeds, as noted above, eligible projects that are not designed to deliver, upon project completion, service that reliably meets or exceeds symmetrical speeds of 100 Mbps because it would be impracticable to do so should be designed so that they can be scalable to such speeds. Recipients are also encouraged to prioritize investments in fiber optic infrastructure where feasible, as such advanced technology enables the next generation of application solutions for all communities. Under the interim final rule, eligible projects are expected to focus on locations that are unserved or underserved. The interim final rule treats users as being unserved or underserved if they lack access to a wireline connection capable of reliably delivering at least minimum speeds of 25 Mbps download and 3 Mbps upload as households and businesses lacking this level of access are generally not viewed as being able to originate and receive high-quality voice, data, graphics, and video telecommunications. This threshold is consistent with the FCC’s benchmark for an ‘‘advanced telecommunications capability.’’ 158 This threshold is also consistent with thresholds used in other Federal programs to identify eligible areas to be served by programs to improve broadband services. For example, in the FCC’s RDOF program, eligible areas include those without current (or already funded) access to terrestrial broadband service providing 25 Mbps download and 3 Mbps upload speeds.159 The Department of Commerce’s BBIP also considers households to be ‘‘unserved’’ generally if they lack access to broadband service 157 Section 905(d)(4) of the Consolidated Appropriations Act, 2021. 158 Deployment Report, supra note 142. 159 Rural Digital Opportunity Fund, supra note 156. E:\FR\FM\17MYR2.SGM 17MYR2 26806 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations with a download speed of not less than 25 Mbps download and 3 Mbps upload, among other conditions. In selecting an area to be served by a project, recipients are encouraged to avoid investing in locations that have existing agreements to build reliable wireline service with minimum speeds of 100 Mbps download and 20 Mbps upload by December 31, 2024, in order to avoid duplication of efforts and resources. Recipients are also encouraged to consider ways to integrate affordability options into their program design. To meet the immediate needs of unserved and underserved households and businesses, recipients are encouraged to focus on projects that deliver a physical broadband connection by prioritizing projects that achieve last mileconnections. Treasury also encourages recipients to prioritize support for broadband networks owned, operated by, or affiliated with local governments, non-profits, and co-operatives— providers with less pressure to turn profits and with a commitment to serving entire communities. Under sections 602(c)(1)(A) and 603(c)(1)(A), assistance to households facing negative economic impacts due to COVID–19 is also an eligible use, including internet access or digital literacy assistance. As discussed above, in considering whether a potential use is eligible under this category, a recipient must consider whether, and the extent to which, the household has experienced a negative economic impact from the pandemic. Question 22: What are the advantages and disadvantages of setting minimum symmetrical download and upload speeds of 100 Mbps? What other minimum standards would be appropriate and why? Question 23: Would setting such a minimum be impractical for particular types of projects? If so, where and on what basis should those projects be identified? How could such a standard be set while also taking into account the practicality of using this standard in particular types of projects? In addition to topography, geography, and financial factors, what other constraints, if any, are relevant to considering whether an investment is impracticable? Question 24: What are the advantages and disadvantages of setting a minimum level of service at 100 Mbps download and 20 Mbps upload in projects where it is impracticable to set minimum symmetrical download and upload speeds of 100 Mbps? What are the advantages and disadvantages of setting a scalability requirement in these cases? What other minimum standards would be appropriate and why? VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 Question 25: What are the advantages and disadvantages of focusing these investments on those without access to a wireline connection that reliably delivers 25 Mbps download by 3 Mbps upload? Would another threshold be appropriate and why? Question 26: What are the advantages and disadvantages of setting any particular threshold for identifying unserved or underserved areas, minimum speed standards or scalability minimum? Are there other standards that should be set (e.g., latency)? If so, why and how? How can such threshold, standards, or minimum be set in a way that balances the public’s interest in making sure that reliable broadband services meeting the daily needs of all Americans are available throughout the country with the providing recipients flexibility to meet the varied needs of their communities? III. Restrictions on Use As discussed above, recipients have considerable flexibility to use Fiscal Recovery Funds to address the diverse needs of their communities. To ensure that payments from the Fiscal Recovery Funds are used for these congressionally permitted purposes, the ARPA includes two provisions that further define the boundaries of the statute’s eligible uses. Section 602(c)(2)(A) of the Act provides that States and territories may not ‘‘use the funds . . . to either directly or indirectly offset a reduction in . . . net tax revenue . . . resulting from a change in law, regulation, or administrative interpretation during the covered period that reduces any tax . . . or delays the imposition of any tax or tax increase.’’ In addition, sections 602(c)(2)(B) and 603(c)(2) prohibit any recipient, including cities, nonentitlement units of government, and counties, from using Fiscal Recovery Funds for deposit into any pension fund. These restrictions support the use of funds for the congressionally permitted purposes described in Section II of this Supplementary Information by providing a backstop against the use of funds for purposes outside of the eligible use categories. These provisions give force to Congress’s clear intent that Fiscal Recovery Funds be spent within the four eligible uses identified in the statute—(1) to respond to the public health emergency and its negative economic impacts, (2) to provide premium pay to essential workers, (3) to provide government services to the extent of eligible governments’ revenue losses, and (4) to make necessary water, sewer, and broadband infrastructure investments—and not otherwise. These PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 four eligible uses reflect Congress’s judgment that the Fiscal Recovery Funds should be expended in particular ways that support recovery from the COVID–19 public health emergency. The further restrictions reflect Congress’s judgment that tax cuts and pension deposits do not fall within these eligible uses. The interim final rule describes how Treasury will identify when such uses have occurred and how it will recoup funds put toward these impermissible uses and, as discussed in Section VIII of this SUPPLEMENTARY INFORMATION, establishes a reporting framework for monitoring the use of Fiscal Recovery Funds for eligible uses. A. Deposit Into Pension Funds The statute provides that recipients may not use Fiscal Recovery Funds for ‘‘deposit into any pension fund.’’ For the reasons discussed below, Treasury interprets ‘‘deposit’’ in this context to refer to an extraordinary payment into a pension fund for the purpose of reducing an accrued, unfunded liability. More specifically, the interim final rule does not permit this assistance to be used to make a payment into a pension fund if both: 1. The payment reduces a liability incurred prior to the start of the COVID– 19 public health emergency, and 2. the payment occurs outside the recipient’s regular timing for making such payments. Under this interpretation, a ‘‘deposit’’ is distinct from a ‘‘payroll contribution,’’ which occurs when employers make payments into pension funds on regular intervals, with contribution amounts based on a predetermined percentage of employees’ wages and salaries. As discussed above, eligible uses for premium pay and responding to the negative economic impacts of the COVID–19 public health emergency include hiring and compensating public sector employees. Interpreting the scope of ‘‘deposit’’ to exclude contributions that are part of payroll contributions is more consistent with these eligible uses and would reduce administrative burden for recipients. Accordingly, if an employee’s wages and salaries are an eligible use of Fiscal Recovery Funds, recipients may treat the employee’s covered benefits as an eligible use of Fiscal Recovery Funds. For purposes of the Fiscal Recovery Funds, covered benefits include costs of all types of leave (vacation, family-related, sick, military, bereavement, sabbatical, jury duty), employee insurance (health, life, dental, vision), retirement (pensions, 401(k)), unemployment benefit plans E:\FR\FM\17MYR2.SGM 17MYR2 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations (Federal and State), workers’ compensation insurance, and Federal Insurance Contributions Act taxes (which includes Social Security and Medicare taxes). Treasury anticipates that this approach to employees’ covered benefits will be comprehensive and, for employees whose wage and salary costs are eligible expenses, will allow all covered benefits listed in the previous paragraph to be eligible under the Fiscal Recovery Funds. Treasury expects that this will minimize the administrative burden on recipients by treating all the specified covered benefit types as eligible expenses, for employees whose wage and salary costs are eligible expenses. Question 27: Beyond a ‘‘deposit’’ and a ‘‘payroll contribution,’’ are there other types of payments into a pension fund that Treasury should consider? B. Offset a Reduction in Net Tax Revenue For States and territories (recipient governments 160), section 602(c)(2)(A)— the offset provision—prohibits the use of Fiscal Recovery Funds to directly or indirectly offset a reduction in net tax revenue resulting from a change in law, regulation, or administrative interpretation 161 during the covered period. If a State or territory uses Fiscal Recovery Funds to offset a reduction in net tax revenue, the ARPA provides that the State or territory must repay to the Treasury an amount equal to the lesser of (i) the amount of the applicable reduction attributable to the impermissible offset and (ii) the amount received by the State or territory under the ARPA. See Section IV of this SUPPLEMENTARY INFORMATION. As discussed below Section IV of this SUPPLEMENTARY INFORMATION, a State or territory that chooses to use Fiscal Recovery Funds to offset a reduction in net tax revenue does not forfeit its entire allocation of Fiscal Recovery Funds (unless it misused the full allocation to offset a reduction in net tax revenue) or any non-ARPA funding received. The interim final rule implements these conditions by establishing a framework for States and territories to determine the cost of changes in law, regulation, or interpretation that reduce tax revenue and to identify and value the sources of funds that will offset— 160 In this sub-section, ‘‘recipient governments’’ refers only to States and territories. In other sections, ‘‘recipient governments’’ refers more broadly to eligible governments receiving funding from the Fiscal Recovery Funds. 161 For brevity, referred to as ‘‘changes in law, regulation, or interpretation’’ for the remainder of this preamble. VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 i.e., cover the cost of—any reduction in net tax revenue resulting from such changes. A recipient government would only be considered to have used Fiscal Recovery Funds to offset a reduction in net tax revenue resulting from changes in law, regulation, or interpretation if, and to the extent that, the recipient government could not identify sufficient funds from sources other than the Fiscal Recovery Funds to offset the reduction in net tax revenue. If sufficient funds from other sources cannot be identified to cover the full cost of the reduction in net tax revenue resulting from changes in law, regulation, or interpretation, the remaining amount not covered by these sources will be considered to have been offset by Fiscal Recovery Funds, in contravention of the offset provision. The interim final rule recognizes three sources of funds that may offset a reduction in net tax revenue other than Fiscal Recovery Funds—organic growth, increases in revenue (e.g., an increase in a tax rate), and certain cuts in spending. In order to reduce burden, the interim final rule’s approach also incorporates the types of information and modeling already used by States and territories in their own fiscal and budgeting processes. By incorporating existing budgeting processes and capabilities, States and territories will be able to assess and evaluate the relationship of tax and budget decisions to uses of the Fiscal Recovery Funds based on information they likely have or can obtain. This approach ensures that recipient governments have the information they need to understand the implications of their decisions regarding the use of the Fiscal Recovery Funds— and, in particular, whether they are using the funds to directly or indirectly offset a reduction in net tax revenue, making them potentially subject to recoupment. Reporting on both the eligible uses and on a State’s or territory’s covered tax changes that would reduce tax revenue will enable identification of, and recoupment for, use of Fiscal Recovery Funds to directly offset reductions in tax revenue resulting from tax relief. Moreover, this approach recognizes that, because money is fungible, even if Fiscal Recovery Funds are not explicitly or directly used to cover the costs of changes that reduce net tax revenue, those funds may be used in a manner inconsistent with the statute by indirectly being used to substitute for the State’s or territory’s funds that would otherwise have been needed to cover the costs of the reduction. By focusing on the cost of changes that reduce net tax revenue— and how a recipient government is PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 26807 offsetting those reductions in constructing its budget over the covered period—the framework prevents efforts to use Fiscal Recovery Funds to indirectly offset reductions in net tax revenue for which the recipient government has not identified other offsetting sources of funding. As discussed in greater detail below in this preamble, the framework set forth in the interim final rule establishes a step-by-step process for determining whether, and the extent to which, Fiscal Recovery Funds have been used to offset a reduction in net tax revenue. Based on information reported annually by the recipient government: • First, each year, each recipient government will identify and value the changes in law, regulation, or interpretation that would result in a reduction in net tax revenue, as it would in the ordinary course of its budgeting process. The sum of these values in the year for which the government is reporting is the amount it needs to ‘‘pay for’’ with sources other than Fiscal Recovery Funds (total value of revenue reducing changes). • Second, the interim final rule recognizes that it may be difficult to predict how a change would affect net tax revenue in future years and, accordingly, provides that if the total value of the changes in the year for which the recipient government is reporting is below a de minimis level, as discussed below, the recipient government need not identify any sources of funding to pay for revenue reducing changes and will not be subject to recoupment. • Third, a recipient government will consider the amount of actual tax revenue recorded in the year for which they are reporting. If the recipient government’s actual tax revenue is greater than the amount of tax revenue received by the recipient for the fiscal year ending 2019, adjusted annually for inflation, the recipient government will not be considered to have violated the offset provision because there will not have been a reduction in net tax revenue. • Fourth, if the recipient government’s actual tax revenue is less than the amount of tax revenue received by the recipient government for the fiscal year ending 2019, adjusted annually for inflation, in the reporting year the recipient government will identify any sources of funds that have been used to permissibly offset the total value of covered tax changes other than Fiscal Recovery Funds. These are: Æ State or territory tax changes that would increase any source of general E:\FR\FM\17MYR2.SGM 17MYR2 26808 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations fund revenue, such as a change that would increase a tax rate; and Æ Spending cuts in areas not being replaced by Fiscal Recovery Funds. The recipient government will calculate the value of revenue reduction remaining after applying these sources of offsetting funding to the total value of revenue reducing changes—that, is, how much of the tax change has not been paid for. The recipient government will then compare that value to the difference between the baseline and actual tax revenue. A recipient government will not be required to repay to the Treasury an amount that is greater than the recipient government’s actual tax revenue shortfall relative to the baseline (i.e., fiscal year 2019 tax revenue adjusted for inflation). This ‘‘revenue reduction cap,’’ together with Step 3, ensures that recipient governments can use organic revenue growth to offset the cost of revenue reductions. • Finally, if there are any amounts that could be subject to recoupment, Treasury will provide notice to the recipient government of such amounts. This process is discussed in greater detail in Section IV of this SUPPLEMENTARY INFORMATION. Together, these steps allow Treasury to identify the amount of reduction in net tax revenue that both is attributable to covered changes and has been directly or indirectly offset with Fiscal Recovery Funds. This process ensures Fiscal Recovery Funds are used in a manner consistent with the statute’s defined eligible uses and the offset provision’s limitation on these eligible uses, while avoiding undue interference with State and territory decisions regarding tax and spending policies. The interim final rule also implements a process for recouping Fiscal Recovery Funds that were used to offset reductions in net tax revenue, including the calculation of any amounts that may be subject to recoupment, a process for a recipient government to respond to a notice of recoupment, and clarification regarding amounts excluded from recoupment. See Section IV of this SUPPLEMENTARY INFORMATION. The interim final rule includes several definitions that are applicable to the implementation of the offset provision. Covered change. The offset provision is triggered by a reduction in net tax revenue resulting from ‘‘a change in law, regulation, or administrative interpretation.’’ A covered change includes any final legislative or regulatory action, a new or changed administrative interpretation, and the phase-in or taking effect of any statute VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 or rule where the phase-in or taking effect was not prescribed prior to the start of the covered period. Changed administrative interpretations would not include corrections to replace prior inaccurate interpretations; such corrections would instead be treated as changes implementing legislation enacted or regulations issued prior to the covered period; the operative change in those circumstances is the underlying legislation or regulation that occurred prior to the covered period. Moreover, only the changes within the control of the State or territory are considered covered changes. Covered changes do not include a change in rate that is triggered automatically and based on statutory or regulatory criteria in effect prior to the covered period. For example, a state law that sets its earned income tax credit (EITC) at a fixed percentage of the Federal EITC will see its EITC payments automatically increase—and thus its tax revenue reduced—because of the Federal Government’s expansion of the EITC in the ARPA.162 This would not be considered a covered change. In addition, the offset provision applies only to actions for which the change in policy occurs during the covered period; it excludes regulations or other actions that implement a change or law substantively enacted prior to March 3, 2021. Finally, Treasury has determined and previously announced that income tax changes—even those made during the covered period—that simply conform with recent changes in Federal law (including those to conform to recent changes in Federal taxation of unemployment insurance benefits and taxation of loan forgiveness under the Paycheck Protection Program) are permissible under the offset provision. Baseline. For purposes of measuring a reduction in net tax revenue, the interim final rule measures actual changes in tax revenue relative to a revenue baseline (baseline). The baseline will be calculated as fiscal year 2019 (FY 2019) tax revenue indexed for inflation in each year of the covered period, with inflation calculated using the Bureau of Economic Analysis’s Implicit Price Deflator.163 FY 2019 was chosen as the starting year for the baseline because it is the last full fiscal year prior to the COVID– 162 See, e.g., Tax Policy Center, How do state earned income tax credits work?, https:// www.taxpolicycenter.org/briefing-book/how-dostate-earned-income-tax-credits-work/ (last visited May 9, 2021). 163 U.S. Department of Commerce, Bureau of Economic Analysis, GDP Price Deflator, https:// www.bea.gov/data/prices-inflation/gdp-pricedeflator (last visited May 9, 2021). PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 19 public health emergency.164 This baseline year is consistent with the approach directed by the ARPA in sections 602(c)(1)(C) and 603(c)(1)(C), which identify the ‘‘most recent full fiscal year of the [State, territory, or Tribal government] prior to the emergency’’ as the comparator for measuring revenue loss. U.S. gross domestic product is projected to rebound to pre-pandemic levels in 2021,165 suggesting that an FY 2019 prepandemic baseline is a reasonable comparator for future revenue levels. The FY 2019 baseline revenue will be adjusted annually for inflation to allow for direct comparison of actual tax revenue in each year (reported in nominal terms) to baseline revenue in common units of measurement; without inflation adjustment, each dollar of reported actual tax revenue would be worth less than each dollar of baseline revenue expressed in 2019 terms. Reporting year. The interim final rule defines ‘‘reporting year’’ as a single year within the covered period, aligned to the current fiscal year of the recipient government during the covered period, for which a recipient government reports the value of covered changes and any sources of offsetting revenue increases (‘‘in-year’’ value), regardless of when those changes were enacted. For the fiscal years ending in 2021 or 2025 (partial years), the term ‘‘reporting year’’ refers to the portion of the year falling within the covered period. For example, the reporting year for a fiscal year beginning July 2020 and ending June 2021 would be from March 3, 2021 to July 2021. Tax revenue. The interim final rule’s definition of ‘‘tax revenue’’ is based on the Census Bureau’s definition of taxes, used for its Annual Survey of State Government Finances.166 It provides a consistent, well-established definition with which States and territories will be familiar and is consistent with the approach taken in Section II.C of this SUPPLEMENTARY INFORMATION describing the implementation of sections 602(c)(1)(C) and 603(c)(1)(C) of the Act, regarding revenue loss. Consistent with the approach described in Section II.C of this SUPPLEMENTARY INFORMATION, tax 164 Using Fiscal Year 2019 is consistent with section 602 as Congress provided for using that baseline for determining the impact of revenue loss affecting the provision of government services. See section 602(c)(1)(C). 165 Congressional Budget Office, An Overview of the Economic Outlook: 2021 to 2031 (February 1, 2021), available at https://www.cbo.gov/ publication/56965. 166 U.S. Census Bureau, Annual Survey of State and Local Government Finances Glossary, https:// www.census.gov/programs-surveys/state/about/ glossary.html (last visited Apr. 30, 2021). E:\FR\FM\17MYR2.SGM 17MYR2 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations revenue does not include revenue taxed and collected by a different unit of government (e.g., revenue from taxes levied by a local government and transferred to a recipient government). Framework. The interim final rule provides a step-by-step framework, to be used in each reporting year, to calculate whether the offset provision applies to a State’s or territory’s use of Fiscal Recovery Funds: (1) Covered changes that reduce tax revenue. For each reporting year, a recipient government will identify and value covered changes that the recipient government predicts will have the effect of reducing tax revenue in a given reporting year, similar to the way it would in the ordinary course of its budgeting process. The value of these covered changes may be reported based on estimated values produced by a budget model, incorporating reasonable assumptions, that aligns with the recipient government’s existing approach for measuring the effects of fiscal policies, and that measures relative to a current law baseline. The covered changes may also be reported based on actual values using a statistical methodology to isolate the change in year-over-year revenue attributable to the covered change(s), relative to the current law baseline prior to the change(s). Further, estimation approaches should not use dynamic methodologies that incorporate the projected effects of macroeconomic growth because macroeconomic growth is accounted for separately in the framework. Relative to these dynamic scoring methodologies, scoring methodologies that do not incorporate projected effects of macroeconomic growth rely on fewer assumptions and thus provide greater consistency among States and territories. Dynamic scoring that incorporates macroeconomic growth may also increase the likelihood of underestimation of the cost of a reduction in tax revenue. In general and where possible, reporting should be produced by the agency of the recipient government responsible for estimating the costs and effects of fiscal policy changes. This approach offers recipient governments the flexibility to determine their reporting methodology based on their existing budget scoring practices and capabilities. In addition, the approach of using the projected value of changes in law that enact fiscal policies to estimate the net effect of such policies is consistent with the way many States VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 and territories already consider tax changes.167 (2) In excess of the de minimis. The recipient government will next calculate the total value of all covered changes in the reporting year resulting in revenue reductions, identified in Step 1. If the total value of the revenue reductions resulting from these changes is below the de minimis level, the recipient government will be deemed not to have any revenue-reducing changes for the purpose of determining the recognized net reduction. If the total is above the de minimis level, the recipient government must identify sources of in-year revenue to cover the full costs of changes that reduce tax revenue. The de minimis level is calculated as 1 percent of the reporting year’s baseline. Treasury recognizes that, pursuant to their taxing authority, States and territories may make many small changes to alter the composition of their tax revenues or implement other policies with marginal effects on tax revenues. They may also make changes based on projected revenue effects that turn out to differ from actual effects, unintentionally resulting in minor revenue changes that are not fairly described as ‘‘resulting from’’ tax law changes. The de minimis level recognizes the inherent challenges and uncertainties that recipient governments face, and thus allows relatively small reductions in tax revenue without consequence. Treasury determined the 1 percent level by assessing the historical effects of state-level tax policy changes in state EITCs implemented to effect policy goals other than reducing net tax revenues.168 The 1 percent de minimis level reflects the historical reductions in revenue due to minor changes in state fiscal policies. (3) Safe harbor. The recipient government will then compare the reporting year’s actual tax revenue to the baseline. If actual tax revenue is greater than the baseline, Treasury will deem the recipient government not to have any recognized net reduction for the reporting year, and therefore to be in a safe harbor and outside the ambit of the offset provision. This approach is consistent with the ARPA, which contemplates recoupment of Fiscal Recovery Funds only in the event that 167 See, e.g., Megan Randall & Kim Rueben, Tax Policy Center, Sustainable Budgeting in the States: Evidence on State Budget Institutions and Practices (Nov. 2017), available at https:// www.taxpolicycenter.org/sites/default/files/ publication/149186/sustainable-budgeting-in-thestates_1.pdf. 168 Data provided by the Urban-Brookings Tax Policy Center for state-level EITC changes for 2004– 2017. PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 26809 such funds are used to offset a reduction in net tax revenue. If net tax revenue has not been reduced, this provision does not apply. In the event that actual tax revenue is above the baseline, the organic revenue growth that has occurred, plus any other revenue-raising changes, by definition must have been enough to offset the in-year costs of the covered changes. (4) Consideration of other sources of funding. Next, the recipient government will identify and calculate the total value of changes that could pay for revenue reduction due to covered changes and sum these items. This amount can be used to pay for up to the total value of revenue-reducing changes in the reporting year. These changes consist of two categories: (a) Tax and other increases in revenue. The recipient government must identify and consider covered changes in policy that the recipient government predicts will have the effect of increasing general revenue in a given reporting year. As when identifying and valuing covered changes that reduce tax revenue, the value of revenue-raising changes may be reported based on estimated values produced by a budget model, incorporating reasonable assumptions, aligned with the recipient government’s existing approach for measuring the effects of fiscal policies, and measured relative to a current law baseline, or based on actual values using a statistical methodology to isolate the change in year-over-year revenue attributable to the covered change(s). Further, and as discussed above, estimation approaches should not use dynamic scoring methodologies that incorporate the effects of macroeconomic growth because growth is accounted for separately under the interim final rule. In general and where possible, reporting should be produced by the agency of the recipient government responsible for estimating the costs and effects of fiscal policy changes. This approach offers recipient governments the flexibility to determine their reporting methodology based on their existing budget scoring practices and capabilities. (b) Covered spending cuts. A recipient government also may cut spending in certain areas to pay for covered changes that reduce tax revenue, up to the amount of the recipient government’s net reduction in total spending as described below. These changes must be reductions in government outlays not in an area where the recipient government has spent Fiscal Recovery Funds. To better align with existing reporting and accounting, the interim final rule considers the department, agency, or E:\FR\FM\17MYR2.SGM 17MYR2 26810 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations authority from which spending has been cut and whether the recipient government has spent Fiscal Recovery Funds on that same department, agency, or authority. This approach was selected to allow recipient governments to report how Fiscal Recovery Funds have been spent using reporting units already incorporated into their budgeting process. If they have not spent Fiscal Recovery Funds in a department, agency, or authority, the full amount of the reduction in spending counts as a covered spending cut, up to the recipient government’s net reduction in total spending. If they have, the Fiscal Recovery Funds generally would be deemed to have replaced the amount of spending cut and only reductions in spending above the amount of Fiscal Recovery Funds spent on the department, agency, or authority would count. To calculate the amount of spending cuts that are available to offset a reduction in tax revenue, the recipient government must first consider whether there has been a reduction in total net spending, excluding Fiscal Recovery Funds (net reduction in total spending). This approach ensures that reported spending cuts actually create fiscal space, rather than simply offsetting other spending increases. A net reduction in total spending is measured as the difference between total spending in each reporting year, excluding Fiscal Recovery Funds spent, relative to total spending for the recipient’s fiscal year ending in 2019, adjusted for inflation. Measuring reductions in spending relative to 2019 reflects the fact that the fiscal space created by a spending cut persists so long as spending remains below its original level, even if it does not decline further, relative to the same amount of revenue. Measuring spending cuts from year to year would, by contrast, not recognize any available funds to offset revenue reductions unless spending continued to decline, failing to reflect the actual availability of funds created by a persistent change and limiting the discretion of States and territories. In general and where possible, reporting should be produced by the agency of the recipient government responsible for estimating the costs and effects of fiscal policy changes. Treasury chose this approach because while many recipient governments may score budget legislation using projections, spending cuts are readily observable using actual values. This approach—allowing only spending reductions in areas where the recipient government has not spent Fiscal Recovery Funds to be used as an VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 offset for a reduction in net tax revenue—aims to prevent recipient governments from using Fiscal Recovery Funds to supplant State or territory funding in the eligible use areas, and then use those State or territory funds to offset tax cuts. Such an approach helps ensure that Fiscal Recovery Funds are not used to ‘‘indirectly’’ offset revenue reductions due to covered changes. In order to help ensure recipient governments use Fiscal Recovery Funds in a manner consistent with the prescribed eligible uses and do not use Fiscal Recovery Funds to indirectly offset a reduction in net tax revenue resulting from a covered change, Treasury will monitor changes in spending throughout the covered period. If, over the course of the covered period, a spending cut is subsequently replaced with Fiscal Recovery Funds and used to indirectly offset a reduction in net tax revenue resulting from a covered change, Treasury may consider such change to be an evasion of the restrictions of the offset provision and seek recoupment of such amounts. (5) Identification of amounts subject to recoupment. If a recipient government (i) reports covered changes that reduce tax revenue (Step 1); (ii) to a degree greater than the de minimis (Step 2); (iii) has experienced a reduction in net tax revenue (Step 3); and (iv) lacks sufficient revenue from other, permissible sources to pay for the entirety of the reduction (Step 4), then the recipient government will be considered to have used Fiscal Recovery Funds to offset a reduction in net tax revenue, up to the amount that revenue has actually declined. That is, the maximum value of reduction in revenue due to covered changes which a recipient government must cover is capped at the difference between the baseline and actual tax revenue.169 In the event that the baseline is above actual tax revenue and the difference between them is less than the sum of revenue reducing changes that are not paid for with other, permissible sources, organic revenue growth has implicitly offset a portion of the reduction. For example, if a recipient government reduces tax revenue by $1 billion, makes no other changes, and experiences revenue growth driven by organic economic growth worth $500 million, it need only pay for the remaining $500 million with sources other than Fiscal Recovery Funds. The revenue reduction cap implements this 169 This cap is applied in § 35.8(c) of the interim final rule, calculating the amount of funds used in violation of the tax offset provision. PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 approach for permitting organic revenue growth to cover the cost of tax cuts. Finally, as discussed further in Section IV of this SUPPLEMENTARY INFORMATION, a recipient government may request reconsideration of any amounts identified as subject to recoupment under this framework. This process ensures that all relevant facts and circumstances, including information regarding planned spending cuts and budgeting assumptions, are considered prior to a determination that an amount must be repaid. Amounts subject to recoupment are calculated on an annual basis; amounts recouped in one year cannot be returned if the State or territory subsequently reports an increase in net tax revenue. To facilitate the implementation of the framework above, and in addition to reporting required on eligible uses, in each year of the reporting period, each State and territory will report to Treasury the following items: • Actual net tax revenue for the reporting year; • Each revenue-reducing change made to date during the covered period and the in-year value of each change; • Each revenue-raising change made to date during the covered period and the in-year value of each change; • Each covered spending cut made to date during the covered period, the inyear value of each cut, and documentation demonstrating that each spending cut is covered as prescribed under the interim final rule; Treasury will provide additional guidance and instructions the reporting requirements at a later date. Question 28: Does the interim final rule’s definition of tax revenue accord with existing State and territorial practice and, if not, are there other definitions or elements Treasury should consider? Discuss why or why not. Question 29: The interim final rule permits certain spending cuts to cover the costs of reductions in tax revenue, including cuts in a department, agency, or authority in which the recipient government is not using Fiscal Recovery Funds. How should Treasury and recipient governments consider the scope of a department, agency, or authority for the use of funds to ensure spending cuts are not being substituted with Fiscal Recovery Funds while also avoiding an overbroad definition of that captures spending that is, in fact, distinct? Question 30: Discuss the budget scoring methodologies currently used by States and territories. How should the interim final rule take into consideration differences in approaches? Please discuss the use of E:\FR\FM\17MYR2.SGM 17MYR2 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations practices including but not limited to macrodynamic scoring, microdynamic scoring, and length of budget windows. Question 31: If a recipient government has a balanced budget requirement, how will that requirement impact its use of Fiscal Recovery Funds and ability to implement this framework? Question 32: To implement the framework described above, the interim final rule establishes certain reporting requirements. To what extent do recipient governments already produce this information and on what timeline? Discuss ways that Treasury and recipient governments may better rely on information already produced, while ensuring a consistent application of the framework. Question 33: Discuss States’ and territories’ ability to produce the figures and numbers required for reporting under the interim final rule. What additional reporting tools, such as a standardized template, would facilitate States’ and territories’ ability to complete the reporting required under the interim final rule? C. Other Restrictions on Use Payments from the Fiscal Recovery Funds are also subject to pre-existing limitations provided in other Federal statutes and regulations and may not be used as non-Federal match for other Federal programs whose statute or regulations bar the use of Federal funds to meet matching requirements. For example, payments from the Fiscal Recovery Funds may not be used to satisfy the State share of Medicaid.170 As provided for in the award terms, payments from the Fiscal Recovery Funds as a general matter will be subject to the provisions of the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (2 CFR part 200) (the Uniform Guidance), including the cost principles and restrictions on general provisions for selected items of cost. D. Timeline for Use of Fiscal Recovery Funds Section 602(c)(1) and section 603(c)(1) require that payments from the Fiscal Recovery Funds be used only to cover costs incurred by the State, territory, Tribal government, or local government by December 31, 2024. Similarly, the CARES Act provided that payments from the CRF be used to cover costs incurred by December 31, 2021.171 The 170 See 42 CFR 433.51 and 45 CFR 75.306. 1001 of Division N of the Consolidated Appropriations Act, 2021 amended section 601(d)(3) of the Act by extending the end of the covered period for CRF expenditures from December 30, 2020 to December 31, 2021. 171 Section VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 definition of ‘‘incurred’’ does not have a clear meaning. With respect to the CARES Act, on the understanding that the CRF was intended to be used to meet relatively short-term needs, Treasury interpreted this requirement to mean that, for a cost to be considered to have been incurred, performance of the service or delivery of the goods acquired must occur by December 31, 2021. In contrast, the ARPA, passed at a different stage of the COVID–19 public health emergency, was intended to provide more general fiscal relief over a broader timeline. In addition, the ARPA expressly permits the use of Fiscal Recovery Funds for improvements to water, sewer, and broadband infrastructure, which entail a longer timeframe. In recognition of this, Treasury is interpreting the requirement in section 602 and section 603 that costs be incurred by December 31, 2024, to require only that recipients have obligated the Fiscal Recovery Funds by such date. The interim final rule adopts a definition of ‘‘obligation’’ that is based on the definition used for purposes of the Uniform Guidance, which will allow for uniform administration of this requirement and is a definition with which most recipients will be familiar. Payments from the Fiscal Recovery Funds are grants provided to recipients to mitigate the fiscal effects of the COVID–19 public health emergency and to respond to the public health emergency, consistent with the eligible uses enumerated in sections 602(c)(1) and 603(c)(1).172 As such, these funds are intended to provide economic stimulus in areas still recovering from the economic effects of the pandemic. In implementing and interpreting these provisions, including what it means to ‘‘respond to’’ the COVID–19 public health emergency, Treasury takes into consideration pre-pandemic facts and circumstances (e.g., average revenue growth prior to the pandemic) as well as impact of the pandemic that predate the enactment of the ARPA (e.g., replenishing Unemployment Trust balances drawn during the pandemic). While assessing the effects of the COVID–19 public health emergency necessarily takes into consideration the facts and circumstances that predate the ARPA, use of Fiscal Recovery Funds is forward looking. As discussed above, recipients are permitted to use payments from the Fiscal Recovery Funds to respond to the public health emergency, to respond to workers performing essential work by providing premium pay or providing 172 Sections 602(a), 603(a), 602(c)(1) and 603(c)(1) of the Act. PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 26811 grants to eligible employers, and to make necessary investments in water, sewer, or broadband infrastructure, which all relate to prospective uses. In addition, sections 602(c)(1)(C) and 603(c)(1)(C) permit recipients to use Fiscal Recovery Funds for the provision of government services. This clause provides that the amount of funds that may be used for this purpose is measured by reference to the reduction in revenue due to the public health emergency relative to revenues collected in the most recent full fiscal year, but this reference does not relate to the period during which recipients may use the funds, which instead refers to prospective uses, consistent with the other eligible uses. Although as discussed above the eligible uses of payments from the Fiscal Recovery Funds are all prospective in nature, Treasury considers the beginning of the covered period for purposes of determining compliance with section 602(c)(2)(A) to be the relevant reference point for this purpose. The interim final rule thus permits funds to be used to cover costs incurred beginning on March 3, 2021. This aligns the period for use of Fiscal Recovery Funds with the period during which these funds may not be used to offset reductions in net tax revenue. Permitting Fiscal Recovery Funds to be used to cover costs incurred beginning on this date will also mean that recipients that began incurring costs in the anticipation of enactment of the ARPA and in advance of the issuance of this rule and receipt of payment from the Fiscal Recovery Funds would be able to cover them using these payments.173 As set forth in the award terms, the period of performance will run until December 31, 2026, which will provide recipients a reasonable amount of time to complete projects funded with payments from the Fiscal Recovery Funds. IV. Recoupment Process Under the ARPA, failure to comply with the restrictions on use contained in sections 602(c) and 603(c) of the Act may result in recoupment of funds.174 The interim final rule implements these provisions by establishing a process for recoupment. Identification and Notice of Violations. Failure to comply with the restrictions on use will be identified based on reporting provided by the 173 Given the nature of this program, recipients will not be permitted to use funds to cover preaward costs, i.e., those incurred prior to March 3, 2021. 174 Sections 602(e) and 603(e) of the Act. E:\FR\FM\17MYR2.SGM 17MYR2 26812 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations recipient. As discussed further in Sections III.B and VIII of this SUPPLEMENTARY INFORMATION, Treasury will collect information regarding eligible uses on a quarterly basis and on the tax offset provision on an annual basis. Treasury also may consider other information in identifying a violation, such as information provided by members of the public. If Treasury identifies a violation, it will provide written notice to the recipient along with an explanation of such amounts. Request for Reconsideration. Under the interim final rule, a recipient may submit a request for reconsideration of any amounts identified in the notice provided by Treasury. This reconsideration process provides a recipient the opportunity to submit additional information it believes supports its request in light of the notice of recoupment, including, for example, additional information regarding the recipient’s use of Fiscal Recovery Funds or its tax revenues. The process also provides the Secretary with an opportunity to consider all information relevant to whether a violation has occurred, and if so, the appropriate amount for recoupment. The interim final rule also establishes requirements for the timing of a request for reconsideration. Specifically, if a recipient wishes to request reconsideration of any amounts identified in the notice, the recipient must submit a written request for reconsideration to the Secretary within 60 calendar days of receipt of such notice. The request must include an explanation of why the recipient believes that the finding of a violation or recoupable amount identified in the notice of recoupment should be reconsidered. To facilitate the Secretary’s review of a recipient’s request for reconsideration, the request should identify all supporting reasons for the request. Within 60 calendar days of receipt of the recipient’s request for reconsideration, the recipient will be notified of the Secretary’s decision to affirm, withdraw, or modify the notice of recoupment. Such notification will include an explanation of the decision, including responses to the recipient’s supporting reasons and consideration of additional information provided. The process and timeline established by the interim final rule are intended to provide the recipient with an adequate opportunity to fully present any issues or arguments in response to the notice of recoupment.175 This process will allow the Secretary to respond to the 175 The interim final rule also provides that Treasury may extend any deadlines. VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 issues and considerations raised in the request for reconsideration taking into account the information and arguments presented by the recipient along with any other relevant information. Repayment. Finally, the interim final rule provides that any amounts subject to recoupment must be repaid within 120 calendar days of receipt of any final notice of recoupment or, if the recipient has not requested reconsideration, within 120 calendar days of the initial notice provided by the Secretary. Question 34: Discuss the timeline for requesting reconsideration under the interim final rule. What, if any, challenges does this timeline present? V. Payments in Tranches to Local Governments and Certain States Section 603 of the Act provides that the Secretary will make payments to local governments in two tranches, with the second tranche being paid twelve months after the first payment. In addition, section 602(b)(6)(A)(ii) provides that the Secretary may withhold payment of up to 50 percent of the amount allocated to each State and territory for a period of up to twelve months from the date on which the State or territory provides its certification to the Secretary. Any such withholding for a State or territory is required to be based on the unemployment rate in the State or territory as of the date of the certification. The Secretary has determined to provide in this interim final rule for withholding of 50 percent of the amount of Fiscal Recovery Funds allocated to all States (and the District of Columbia) other than those with an unemployment rate that is 2.0 percentage points or more above its pre-pandemic (i.e., February 2020) level. The Secretary will refer to the latest available monthly data from the Bureau of Labor Statistics as of the date the certification is provided. Based on data available at the time of public release of this interim final rule, this threshold would result in a majority of States being paid in two tranches. Splitting payments for the majority of States is consistent with the requirement in section 603 of the Act to make payments from the Coronavirus Local Fiscal Recovery Fund to local governments in two tranches.176 176 With respect to Federal financial assistance more generally, States are subject to the requirements of the Cash Management Improvement Act (CMIA), under which Federal funds are drawn upon only on an as needed basis and States are required to remit interest on unused balances to Treasury. Given the statutory requirement for Treasury to make payments to States within a certain period, these requirements PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 Splitting payments to States into two tranches will help encourage recipients to adapt, as necessary, to new developments that could arise over the coming twelve months, including potential changes to the nature of the public health emergency and its negative economic impacts. While the U.S. economy has been recovering and adding jobs in aggregate, there is still considerable uncertainty in the economic outlook and the interaction between the pandemic and the economy.177 For these reasons, Treasury believes it will be appropriate for a majority of recipients to adapt their plans as the recovery evolves. For example, a faster-than-expected economic recovery in 2021 could lead a recipient to dedicate more Fiscal Recovery Funds to longer-term investments starting in 2022. In contrast, a slower-than-expected economic recovery in 2021 could lead a recipient to use additional funds for near-term stimulus in 2022. At the same time, the statute contemplates the possibility that elevated unemployment in certain States could justify a single payment. Elevated unemployment is indicative of a greater need to assist unemployed workers and stimulate a faster economic recovery. For this reason, the interim final rule provides that States and territories with an increase in their unemployment rate over a specified threshold may receive a single payment, with the expectation that a single tranche will better enable these States and territories to take additional immediate action to aid the unemployed and strengthen their economies. Following the initial pandemicrelated spike in unemployment in 2020, States’ unemployment rates have been trending back towards pre-pandemic levels. However, some States’ labor markets are healing more slowly than others. Moreover, States varied widely in their pre-pandemic levels of unemployment, and some States remain substantially further from their preof the CMIA and Treasury’s implementing regulations at 31 CFR part 205 will not apply to payments from the Fiscal Recovery Funds. Providing funding in two tranches to the majority of States reflects, to the maximum extent permitted by section 602 of the Act, the general principles of Federal cash management and stewardship of Federal funding, yet will be much less restrictive than the usual requirements to which States are subject. 177 The potential course of the virus, and its impact on the economy, has contributed to a heightened degree of uncertainty relative to prior periods. See, e.g., Dave Altig et al., Economic uncertainty before and during the COVID–19 pandemic, J. of Public Econ. (Nov. 2020), available at https://www.sciencedirect.com/science/article/ abs/pii/S0047272720301389. E:\FR\FM\17MYR2.SGM 17MYR2 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations pandemic starting point. Consequently, Treasury is delineating States with significant remaining elevation in the unemployment rate, based on the net difference to pre-pandemic levels. Treasury has established that significant remaining elevation in the unemployment rate is a net change in the unemployment rate of 2.0 percentage points or more relative to pre-pandemic levels. In the four previous recessions going back to the early 1980s, the national unemployment rate rose by 3.6, 2.3, 2.0, and 5.0 percentage points, as measured from the start of the recession to the eventual peak during or immediately following the recession.178 Each of these increases can therefore represent a recession’s impact on unemployment. To identify States with significant remaining elevation in unemployment, Treasury took the lowest of these four increases, 2.0 percentage points, to indicate states where, despite improvement in the unemployment rate, current labor market conditions are consistent still with a historical benchmark for a recession. No U.S. territory will be subject to withholding of its payment from the Fiscal Recovery Funds. For Puerto Rico, the Secretary has determined that the current level of the unemployment rate (8.8 percent, as of March 2021 179) is sufficiently high such that Treasury should not withhold any portion of its payment from the Fiscal Recovery Funds regardless of its change in unemployment rate relative to its prepandemic level. For U.S. territories that are not included in the Bureau of Labor Statistics’ monthly unemployment rate data, the Secretary will not exercise the authority to withhold amounts from the Fiscal Recovery Funds. VI. Transfer The statute authorizes State, territorial, and Tribal governments; counties; metropolitan cities; and nonentitlement units of local government (counties, metropolitan 178 Includes the period during and immediately following recessions, as defined by the National Bureau of Economic Research. National Bureau of Economic Research, US Business Cycle Expansions and Contractions, https://www.nber.org/research/ data/us-business-cycle-expansions-andcontractions (last visited Apr. 27, 2021). Based on data from U.S. Bureau of Labor Statistics, Unemployment Rate [UNRATE], retrieved from FRED, Federal Reserve Bank of St. Louis, https:// fred.stlouisfed.org/series/UNRATE (last visited Apr. 27, 2021). 179 U.S. Bureau of Labor Statistics, Economic News Release—Table 1. Civilian labor force and unemployment by state and selected area, seasonally adjusted, https://www.bls.gov/ news.release/laus.t01.htm (last visited Apr. 30, 2021). VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 cities, and nonentitlement units of local government are collectively referred to as ‘‘local governments’’) to transfer amounts paid from the Fiscal Recovery Funds to a number of specified entities. By permitting these transfers, Congress recognized the importance of providing flexibility to governments seeking to achieve the greatest impact with their funds, including by working with other levels or units of government or private entities to assist recipient governments in carrying out their programs. This includes special-purpose districts that perform specific functions in the community, such as fire, water, sewer, or mosquito abatement districts. Specifically, under section 602(c)(3), a State, territory, or Tribal government may transfer funds to a ‘‘private nonprofit organization . . . a Tribal organization . . . a public benefit corporation involved in the transportation of passengers or cargo, or a special-purpose unit of State or local government.’’ 180 Similarly, section 603(c)(3) authorizes a local government to transfer funds to the same entities (other than Tribal organizations). The interim final rule clarifies that the lists of transferees in sections 602(c)(3) and 603(c)(3) are not exclusive. The interim final rule permits State, territorial, and Tribal governments to transfer Fiscal Recovery Funds to other constituent units of government or private entities beyond those specified in the statute. Similarly, local governments are authorized to transfer Fiscal Recovery Funds to other constituent units of government (e.g., a county is able to transfer Fiscal Recovery Funds to a city, town, or school district within it) or to private entities. This approach is intended to help provide funding to local governments with needs that may exceed the allocation provided under the statutory formula. State, local, territorial, and Tribal governments that receive a Federal award directly from a Federal awarding agency, such as Treasury, are ‘‘recipients.’’ A transferee receiving a transfer from a recipient under sections 602(c)(3) and 603(c)(3) will be a subrecipient. Subrecipients are entities that receive a subaward from a recipient to carry out a program or project on behalf of the recipient with the recipient’s Federal award funding. The recipient remains responsible for monitoring and overseeing the subrecipient’s use of Fiscal Recovery Funds and other activities related to the award to ensure that the subrecipient complies with the statutory and 180 Section PO 00000 602(c)(3) of the Act. Frm 00029 Fmt 4701 Sfmt 4700 26813 regulatory requirements and the terms and conditions of the award. Recipients also remain responsible for reporting to Treasury on their subrecipients’ use of payments from the Fiscal Recovery Funds for the duration of the award. Transfers under sections 602(c)(3) and 603(c)(3) must qualify as an eligible use of Fiscal Recovery Funds by the transferor. Once Fiscal Recovery Funds are received, the transferee must abide by the restrictions on use applicable to the transferor under the ARPA and other applicable law and program guidance. For example, if a county transferred Fiscal Recovery Funds to a town within its borders to respond to the COVID–19 public health emergency, the town would be bound by the eligible use requirements applicable to the county in carrying out the county’s goal. This also means that county A may not transfer Fiscal Recovery Funds to county B for use in county B because such a transfer would not, from the perspective of the transferor (county A), be an eligible use in county A. Section 603(c)(4) separately provides for transfers by a local government to its State or territory. A transfer under section 603(c)(4) will not make the State a subrecipient of the local government, and such Fiscal Recovery Funds may be used by the State for any purpose permitted under section 602(c). A transfer under section 603(c)(4) will result in a cancellation or termination of the award on the part of the transferor local government and a modification of the award to the transferee State or territory. The transferor must provide notice of the transfer to Treasury in a format specified by Treasury. If the local government does not provide such notice, it will remain legally obligated to Treasury under the award and remain responsible for ensuring that the awarded Fiscal Recovery Funds are being used in accordance with the statute and program guidance and for reporting on such uses to Treasury. A State that receives a transfer from a local government under section 603(c)(4) will be bound by all of the use restrictions set forth in section 602(c) with respect to the use of those Fiscal Recovery Funds, including the prohibitions on use of such Fiscal Recovery Funds to offset certain reductions in taxes or to make deposits into pension funds. Question 35: What are the advantages and disadvantages of treating the list of transferees in sections 602(c)(3) and 603(c)(3) as nonexclusive, allowing States and localities to transfer funds to entities outside of the list? Question 36: Are there alternative ways of defining ‘‘special-purpose unit of State or local government’’ and E:\FR\FM\17MYR2.SGM 17MYR2 26814 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations ‘‘public benefit corporation’’ that would better further the aims of the Funds? VII. Nonentitlement Units of Government The Fiscal Recovery Funds provides for $19.53 billion in payments to be made to States and territories which will distribute the funds to nonentitlement units of local government (NEUs); local governments which generally have populations below 50,000. These local governments have not yet received direct fiscal relief from the Federal Government during the COVID–19 public health emergency, making Fiscal Recovery Funds payments an important source of support for their public health and economic responses. Section 603 requires Treasury to allocate and pay Fiscal Recovery Funds to the States and territories and requires the States and territories to distribute Fiscal Recovery Funds to NEUs based on population within 30 days of receipt unless an extension is granted by the Secretary. The interim final rule clarifies certain aspects regarding the distribution of Fiscal Recovery by States and territories to NEUs, as well as requirements around timely payments from the Fiscal Recovery Funds. The ARPA requires that States and territories allocate funding to NEUs in an amount that bears the same proportion as the population of the NEU bears to the total population of all NEUs in the State or territory, subject to a cap (described below). Because the statute requires States and territories to make distributions based on population, States and territories may not place additional conditions or requirements on distributions to NEUs, beyond those required by the ARPA and Treasury’s implementing regulations and guidance. For example, a State may not impose stricter limitations than permitted by statute or Treasury regulations or guidance on an NEU’s use of Fiscal Recovery Funds based on the NEU’s proposed spending plan or other policies. States and territories are also not permitted to offset any debt owed by the NEU against the NEU’s distribution. Further, States and territories may not provide funding on a reimbursement basis—e.g., requiring NEUs to pay for project costs up front before being reimbursed with Fiscal Recovery Funds payments—because this funding model would not comport with the statutory requirement that States and territories make distributions to NEUs within the statutory timeframe. Similarly, States and territories distributing Fiscal Recovery Funds payments to NEUs are responsible for VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 complying with the Fiscal Recovery Funds statutory requirement that distributions to NEUs not exceed 75 percent of the NEU’s most recent budget. The most recent budget is defined as the NEU’s most recent annual total operating budget, including its general fund and other funds, as of January 27, 2020. Amounts in excess of such cap and therefore not distributed to the NEU must be returned to Treasury by the State or territory. States and territories may rely for this determination on a certified top-line budget total from the NEU. Under the interim final rule, the total allocation and distribution to an NEU, including the sum of both the first and second tranches of funding, cannot exceed the 75 percent cap. States and territories must permit NEUs without formal budgets as of January 27, 2020 to self-certify their most recent annual expenditures as of January 27, 2020 for the purpose of calculating the cap. This approach will provide an administrable means to implement the cap for small local governments that do not adopt a formal budget. Section 603(b)(3) of the Social Security Act provides for Treasury to make payments to counties but provides that, in the case of an amount to be paid to a county that is not a unit of general local government, the amount shall instead be paid to the State in which such county is located, and such State shall distribute such amount to each unit of general local government within such county in an amount that bears the same proportion to the amount to be paid to such county as the population of such units of general local government bears to the total population of such county. As with NEUs, States may not place additional conditions or requirements on distributions to such units of general local government, beyond those required by the ARPA and Treasury’s implementing regulations and guidance. In the case of consolidated governments, section 603(b)(4) allows consolidated governments (e.g., a citycounty consolidated government) to receive payments under each allocation based on the respective formulas. In the case of a consolidated government, Treasury interprets the budget cap to apply to the consolidated government’s NEU allocation under section 603(b)(2) but not to the consolidated government’s county allocation under section 603(b)(3). If necessary, States and territories may use the Fiscal Recovery Funds under section 602(c)(1)(A) to fund expenses related to administering payments to NEUs and units of general local PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 government, as disbursing these funds itself is a response to the public health emergency and its negative economic impacts. If a State or territory requires more time to disburse Fiscal Recovery Funds to NEUs than the allotted 30 days, Treasury will grant extensions of not more than 30 days for States and territories that submit a certification in writing in accordance with section 603(b)(2)(C)(ii)(I). Additional extensions may be granted at the discretion of the Secretary. Question 37: What are alternative ways for States and territories to enforce the 75 percent cap while reducing the administrative burden on them? Question 38: What criteria should Treasury consider in assessing requests for extensions for further time to distribute NEU payments? VIII. Reporting States (defined to include the District of Columbia), territories, metropolitan cities, counties, and Tribal governments will be required to submit one interim report and thereafter quarterly Project and Expenditure reports through the end of the award period on December 31, 2026. The interim report will include a recipient’s expenditures by category at the summary level from the date of award to July 31, 2021 and, for States and territories, information related to distributions to nonentitlement units. Recipients must submit their interim report to Treasury by August 31, 2021. Nonentitlement units of local government are not required to submit an interim report. The quarterly Project and Expenditure reports will include financial data, information on contracts and subawards over $50,000, types of projects funded, and other information regarding a recipient’s utilization of the award funds. The reports will include the same general data (e.g., on obligations, expenditures, contracts, grants, and subawards) as those submitted by recipients of the CRF, with some modifications. Modifications will include updates to the expenditure categories and the addition of data elements related to specific eligible uses, including some of the reporting elements described in sections above. The initial quarterly Project and Expenditure report will cover two calendar quarters from the date of award to September 30, 2021, and must be submitted to Treasury by October 31, 2021. The subsequent quarterly reports will cover one calendar quarter and must be submitted to Treasury within 30 days after the end of each calendar quarter. Nonentitlement units of local government will be required to submit E:\FR\FM\17MYR2.SGM 17MYR2 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations annual Project and Expenditure reports until the end of the award period on December 31, 2026. The initial annual Project and Expenditure report for nonentitlement units of local government will cover activity from the date of award to September 30, 2021 and must be submitted to Treasury by October 31, 2021. The subsequent annual reports must be submitted to Treasury by October 31 each year. States, territories, metropolitan cities, and counties with a population that exceeds 250,000 residents will also be required to submit an annual Recovery Plan Performance report to Treasury. The Recovery Plan Performance report will provide the public and Treasury information on the projects that recipients are undertaking with program funding and how they are planning to ensure project outcomes are achieved in an effective, efficient, and equitable manner. Each jurisdiction will have some flexibility in terms of the form and content of the Recovery Plan Performance report, as long as it includes the minimum information required by Treasury. The Recovery Plan Performance report will include key performance indicators identified by the recipient and some mandatory indicators identified by Treasury, as well as programmatic data in specific eligible use categories and the specific reporting requirements described in the sections above. The initial Recovery Plan Performance report will cover the period from the date of award to July 31, 2021 and must be submitted to Treasury by August 31, 2021. Thereafter, Recovery Plan Performance reports will cover a 12-month period, and recipients will be required to submit the report to Treasury within 30 days after the end of the 12-month period. The second Recovery Plan Performance report will cover the period from July 1, 2021 to June 30, 2022, and must be submitted to Treasury by July 31, 2022. Each annual Recovery Plan Performance report must be posted on the public-facing website of the recipient. Local governments with fewer than 250,000 residents, Tribal governments, and nonentitlement units of local government are not required to develop a Recovery Plan Performance report. Treasury will provide additional guidance and instructions on the reporting requirements outlined above for the Fiscal Recovery Funds at a later date. IX. Comments and Effective Date This interim final rule is being issued without advance notice and public comment to allow for immediate implementation of this program. As VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 discussed below, the requirements of advance notice and public comment do not apply ‘‘to the extent that there is involved . . . a matter relating to agency . . . grants.’’ 181 The interim final rule implements statutory conditions on the eligible uses of the Fiscal Recovery Funds grants, and addresses the payment of those funds, the reporting on uses of funds, and potential consequences of ineligible uses. In addition and as discussed below, the Administrative Procedure Act also provides an exception to ordinary notice-and-comment procedures ‘‘when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.’’ 182 This good cause justification also supports waiver of the 60-day delayed effective date for major rules under the Congressional Review Act at 5 U.S.C. 808(2). Although this interim final rule is effective immediately, comments are solicited from interested members of the public and from recipient governments on all aspects of the interim final rule. These comments must be submitted on or before July 16, 2021. X. Regulatory Analyses Executive Orders 12866 and 13563 This interim final rule is economically significant for the purposes of Executive Orders 12866 and 13563. Treasury, however, is proceeding under the emergency provision at Executive Order 12866 section 6(a)(3)(D) based on the need to act expeditiously to mitigate the current economic conditions arising from the COVID–19 public health emergency. The rule has been reviewed by the Office of Management and Budget (OMB) in accordance with Executive Order 12866. This rule is necessary to implement the ARPA in order to provide economic relief to State, local, and Tribal governments adversely impacted by the COVID–19 public health emergency. Under Executive Order 12866, OMB must determine whether this regulatory action is ‘‘significant’’ and, therefore, subject to the requirements of the Executive Order and subject to review by OMB. Section 3(f) of Executive Order 12866 defines a significant regulatory 181 5 U.S.C. 553(a)(2). U.S.C. 553(b)(3)(B); see also 5 U.S.C. 553(d)(3) (creating an exception to the requirement of a 30-day delay before the effective date of a rule ‘‘for good cause found and published with the rule’’). 182 5 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 26815 action as an action likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or Tribal governments or communities in a material way (also referred to as ‘‘economically significant’’ regulations); (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impacts of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles stated in the Executive order. This regulatory action is an economically significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866. Treasury has also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, section 1(b) of Executive Order 13563 requires that an agency: (1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify); (2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) Select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and (5) Identify and assess available alternatives to direct regulation, including providing economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or providing information that enables the public to make choices. Executive Order 13563 also requires an agency ‘‘to use the best available E:\FR\FM\17MYR2.SGM 17MYR2 26816 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations techniques to quantify anticipated present and future benefits and costs as accurately as possible.’’ OMB’s Office of Information and Regulatory Affairs (OIRA) has emphasized that these techniques may include ‘‘identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.’’ Treasury has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action, and is issuing this interim final rule only on a reasoned determination that the benefits exceed the costs. In choosing among alternative regulatory approaches, Treasury selected those approaches that would maximize net benefits. Based on the analysis that follows and the reasons stated elsewhere in this document, Treasury believes that this interim final rule is consistent with the principles set forth in Executive Order 13563. Treasury also has determined that this regulatory action does not unduly interfere with States, territories, Tribal governments, and localities in the exercise of their governmental functions. This Regulatory Impact Analysis discusses the need for regulatory action, the potential benefits, and the potential costs. Need for Regulatory Action. This interim final rule implements the $350 billion Fiscal Recovery Funds of the ARPA, which Congress passed to help States, territories, Tribal governments, and localities respond to the ongoing COVID–19 public health emergency and its economic impacts. As the agency charged with execution of these programs, Treasury has concluded that this interim final rule is needed to ensure that recipients of Fiscal Recovery Funds fully understand the requirements and parameters of the program as set forth in the statute and deploy funds in a manner that best reflects Congress’ mandate for targeted fiscal relief. This interim final rule is primarily a transfer rule: It transfers $350 billion in aid from the Federal Government to states, territories, Tribal governments, and localities, generating a significant macroeconomic effect on the U.S. economy. In making this transfer, Treasury has sought to implement the program in ways that maximize its potential benefits while minimizing its costs. It has done so by aiming to target relief in key areas according to the congressional mandate; offering clarity to States, territories, Tribal governments, and localities while maintaining their flexibility to respond VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 to local needs; and limiting administrative burdens. Analysis of Benefits. Relative to a prestatutory baseline, the Fiscal Recovery Funds provide a combined $350 billion to State, local, and Tribal governments for fiscal relief and support for costs incurred responding to the COVID–19 pandemic. Treasury believes that this transfer will generate substantial additional economic activity, although given the flexibility accorded to recipients in the use of funds, it is not possible to precisely estimate the extent to which this will occur and the timing with which it will occur. Economic research has demonstrated that state fiscal relief is an efficient and effective way to mitigate declines in jobs and output during an economic downturn.183 Absent such fiscal relief, fiscal austerity among State, local, and Tribal governments could exert a prolonged drag on the overall economic recovery, as occurred following the 2007–09 recession.184 This interim final rule provides benefits across several areas by implementing the four eligible funding uses, as defined in statute: Strengthening the response to the COVID–19 public health emergency and its economic impacts; easing fiscal pressure on State, local, and Tribal governments that might otherwise lead to harmful cutbacks in employment or government services; providing premium pay to essential workers; and making necessary investments in certain types of infrastructure. In implementing the ARPA, Treasury also sought to support disadvantaged communities that have been disproportionately impacted by the pandemic. The Fiscal Recovery Funds as implemented by the interim final rule can be expected to channel resources toward these uses in order to achieve substantial near-term economic and public health benefits, as well as longer-term benefits arising from the allowable investments in water, sewer, and broadband infrastructure and aid to families. 183 Gabriel Chodorow-Reich et al., Does State Fiscal Relief during Recessions Increase Employment? Evidence from the American Recovery and Reinvestment Act, American Econ. J.: Econ. Policy, 4:3 118–45 (Aug. 2012), available at https://www.aeaweb.org/articles?id=10.1257/ pol.4.3.118. 184 See, e.g., Fitzpatrick, Haughwout & Setren, Fiscal Drag from the State and Local Sector?, Liberty Street Economics Blog, Federal Reserve Bank of New York (June 27, 2012), https:// www.libertystreeteconomics.newyorkfed.org/2012/ 06/fiscal-drag-from-the-state-and-local-sector.html; Jiri Jonas, Great Recession and Fiscal Squeeze at U.S. Subnational Government Level, IMF Working Paper 12/184, (July 2012), available at https:// www.imf.org/external/pubs/ft/wp/2012/ wp12184.pdf; Gordon, supra note 9. PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 These benefits are achieved in the interim final rule through a broadly flexible approach that sets clear guidelines on eligible uses of Fiscal Recovery Funds and provides State, local, and Tribal government officials discretion within those eligible uses to direct Fiscal Recovery Funds to areas of greatest need within their jurisdiction. While preserving recipients’ overall flexibility, the interim final rule includes several provisions that implement statutory requirements and will help support use of Fiscal Recovery Funds to achieve the intended benefits. The remainder of this section clarifies how Treasury’s approach to key provisions in the interim final rule will contribute to greater realization of benefits from the program. • Revenue Loss: Recipients will compute the extent of reduction in revenue by comparing actual revenue to a counterfactual trend representing what could have plausibly been expected to occur in the absence of the pandemic. The counterfactual trend begins with the last full fiscal year prior to the public health emergency (as required by statute) and projects forward with an annualized growth adjustment. Treasury’s decision to incorporate a growth adjustment into the calculation of revenue loss ensures that the formula more fully captures revenue shortfalls relative to recipients’ pre-pandemic expectations. Moreover, recipients will have the opportunity to re-calculate revenue loss at several points throughout the program, recognizing that some recipients may experience revenue effects with a lag. This option to re-calculate revenue loss on an ongoing basis should result in more support for recipients to avoid harmful cutbacks in future years. In calculating revenue loss, recipients will look at general revenue in the aggregate, rather than on a source-by-source basis. Given that recipients may have experienced offsetting changes in revenues across sources, Treasury’s approach provides a more accurate representation of the effect of the pandemic on overall revenues. • Premium Pay: Per the statute, recipients have broad latitude to designate critical infrastructure sectors and make grants to third-party employers for the purpose of providing premium pay or otherwise respond to essential workers. While the interim final rule generally preserves the flexibility in the statute, it does add a requirement that recipients give written justification in the case that premium pay would increase a worker’s annual pay above a certain threshold. To set this threshold, Treasury analyzed data E:\FR\FM\17MYR2.SGM 17MYR2 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations from the Bureau of Labor Statistics to determine a level that would not require further justification for premium pay to the vast majority of essential workers, while requiring higher scrutiny for provision of premium pay to higherearners who, even without premium pay, would likely have greater personal financial resources to cope with the effects of the pandemic. Treasury believes the threshold in the interim final rule strikes the appropriate balance between preserving flexibility and helping encourage use of these resources to help those in greatest need. The interim final rule also requires that eligible workers have regular in-person interactions or regular physical handling of items that were also handled by others. This requirement will also help encourage use of financial resources for those who have endured the heightened risk of performing essential work. • Withholding of Payments to Recipients: Treasury believes that for the vast majority of recipient entities, it will be appropriate to receive funds in two separate payments. As discussed above, withholding of payments ensures that recipients can adapt spending plans to evolving economic conditions and that at least some of the economic benefits will be realized in 2022 or later. However, consistent with authorities granted to Treasury in the statute, Treasury recognizes that a subset of States with significant remaining elevation in the unemployment rate could face heightened additional nearterm needs to aid unemployed workers and stimulate the recovery. Therefore, for a subset of State governments, Treasury will not withhold any funds from the first payment. Treasury believes that this approach strikes the appropriate balance between the general reasons to provide funds in two payments and the heightened additional near-term needs in specific States. As discussed above, Treasury set a threshold based on historical analysis of unemployment rates in recessions. • Hiring Public Sector Employees: The interim final rule states explicitly that recipients may use funds to restore their workforces up to pre-pandemic levels. Treasury believes that this statement is beneficial because it eliminates any uncertainty that could cause delays or otherwise negatively impact restoring public sector workforces (which, at time of publication, remain significantly below pre-pandemic levels). Finally, the interim final rule aims to promote and streamline the provision of assistance to individuals and communities in greatest need, VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 particularly communities that have been historically disadvantaged and have experienced disproportionate impacts of the COVID–19 crisis. Targeting relief is in line with Executive Order 13985, ‘‘Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,’’ which laid out an Administration-wide priority to support ‘‘equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.’’ 185 To this end, the interim final rule enumerates a list of services that may be provided using Fiscal Recovery Funds in low-income areas to address the disproportionate impacts of the pandemic in these communities; establishes the characteristics of essential workers eligible for premium pay and encouragement to serve workers based on financial need; provides that recipients may use Fiscal Recovery Funds to restore (to pre-pandemic levels) state and local workforces, where women and people of color are disproportionately represented; 186 and targets investments in broadband infrastructure to unserved and underserved areas. Collectively, these provisions will promote use of resources to facilitate the provision of assistance to individuals and communities with the greatest need. Analysis of Costs. This regulatory action will generate administrative costs relative to a pre-statutory baseline. This includes, chiefly, costs required to administer Fiscal Recovery Funds, oversee subrecipients and beneficiaries, and file periodic reports with Treasury. It also requires States to allocate Fiscal Recovery Funds to nonentitlement units, which are smaller units of local government that are statutorily required to receive their funds through States. Treasury expects that the administrative burden associated with this program will be moderate for a grant program of its size. Treasury expects that most recipients receive direct or indirect funding from Federal Government programs and that many 185 Executive Order on Advancing Racial Equity and Support for Underserved Communities through the Federal Government (Jan. 20, 2021) (86 FR 7009, January 25, 2021), https://www.whitehouse.gov/ briefing-room/presidential-actions/2021/01/20/ executive-order-advancing-racial-equity-andsupport-for-underserved-communities-through-thefederal-government/ (last visited May 9, 2021). 186 David Cooper, Mary Gable & Algernon Austin, Economic Policy Institute Briefing Paper, The Public-Sector Jobs Crisis: Women and African Americans hit hardest by job losses in state and local governments, https://www.epi.org/ publication/bp339-public-sector-jobs-crisis (last visited May 9, 2021). PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 26817 have familiarity with how to administer and report on Federal funds or grant funding provided by other entities. In particular, States, territories, and large localities will have received funds from the CRF and Treasury expects them to rely heavily on established processes developed last year or through prior grant funding, mitigating burden on these governments. Treasury expects to provide technical assistance to defray the costs of administration of Fiscal Recovery Funds to further mitigate burden. In making implementation choices, Treasury has hosted numerous consultations with a diverse range of direct recipients— States, small cities, counties, and Tribal governments—along with various communities across the United States, including those that are underserved. Treasury lacks data to estimate the precise extent to which this interim final rule generates administrative burden for State, local, and Tribal governments, but seeks comment to better estimate and account for these costs, as well as on ways to lessen administrative burdens. Executive Order 13132 Executive Order 13132 (entitled Federalism) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial, direct compliance costs on State, local, and Tribal governments, and is not required by statute, or preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. This interim final rule does not have federalism implications within the meaning of the Executive order and does not impose substantial, direct compliance costs on State, local, and Tribal governments or preempt state law within the meaning of the Executive order. The compliance costs are imposed on State, local, and Tribal governments by sections 602 and 603 of the Social Security Act, as enacted by the ARPA. Notwithstanding the above, Treasury has engaged in efforts to consult and work cooperatively with affected State, local, and Tribal government officials and associations in the process of developing the interim final rule. Pursuant to the requirements set forth in section 8(a) of Executive Order 13132, Treasury certifies that it has complied with the requirements of Executive Order 13132. Administrative Procedure Act The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., generally requires public notice and an opportunity for comment before a rule E:\FR\FM\17MYR2.SGM 17MYR2 26818 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations becomes effective. However, the APA provides that the requirements of 5 U.S.C. 553 do not apply ‘‘to the extent that there is involved . . . a matter relating to agency . . . grants.’’ The interim final rule implements statutory conditions on the eligible uses of the Fiscal Recovery Funds grants, and addresses the payment of those funds, the reporting on uses of funds, and potential consequences of ineligible uses. The rule is thus ‘‘both clearly and directly related to a federal grant program.’’ National Wildlife Federation v. Snow, 561 F.2d 227, 232 (D.C. Cir. 1976). The rule sets forth the ‘‘process necessary to maintain state . . . eligibility for federal funds,’’ id., as well as the ‘‘method[s] by which states can . . . qualify for federal aid,’’ and other ‘‘integral part[s] of the grant program,’’ Center for Auto Safety v. Tiemann, 414 F. Supp. 215, 222 (D.D.C. 1976). As a result, the requirements of 5 U.S.C. 553 do not apply. The APA also provides an exception to ordinary notice-and-comment procedures ‘‘when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.’’ 5 U.S.C. 553(b)(3)(B); see also 5 U.S.C. 553(d)(3) (creating an exception to the requirement of a 30-day delay before the effective date of a rule ‘‘for good cause found and published with the rule’’). Assuming 5 U.S.C. 553 applied, Treasury would still have good cause under sections 553(b)(3)(B) and 553(d)(3) for not undertaking section 553’s requirements. The ARPA is a law responding to a historic economic and Number of respondents (estimated) Reporting public health emergency; it is ‘‘extraordinary’’ legislation about which ‘‘both Congress and the President articulated a profound sense of ‘urgency.’’’ Petry v. Block, 737 F.2d 1193, 1200 (D.C. Cir. 1984). Indeed, several provisions implemented by this interim final rule (sections 602(c)(1)(A) and 603(c)(1)(A)) explicitly provide funds to ‘‘respond to the public health emergency,’’ and the urgency is further exemplified by Congress’s command (in sections 602(b)(6)(B) and 603(b)(7)(A)) that, ‘‘[t]o the extent practicable,’’ funds must be provided to Tribes and cities ‘‘not later than 60 days after the date of enactment.’’ See Philadelphia Citizens in Action v. Schweiker, 669 F.2d 877, 884 (3d Cir. 1982) (finding good cause under circumstances, including statutory time limits, where APA procedures would have been ‘‘virtually impossible’’). Finally, there is an urgent need for States to undertake the planning necessary for sound fiscal policymaking, which requires an understanding of how funds provided under the ARPA will augment and interact with existing budgetary resources and tax policies. Treasury understands that many states require immediate rules on which they can rely, especially in light of the fact that the ARPA ‘‘covered period’’ began on March 3, 2021. The statutory urgency and practical necessity are good cause to forego the ordinary requirements of notice-and-comment rulemaking. Congressional Review Act The Administrator of OIRA has determined that this is a major rule for purposes of Subtitle E of the Small Business Regulatory Enforcement and Fairness Act of 1996 (also known as the Number of responses per respondent Total responses Congressional Review Act or CRA) (5 U.S.C. 804(2) et seq.). Under the CRA, a major rule takes effect 60 days after the rule is published in the Federal Register. 5 U.S.C. 801(a)(3). Notwithstanding this requirement, the CRA allows agencies to dispense with the requirements of section 801 when the agency for good cause finds that such procedure would be impracticable, unnecessary, or contrary to the public interest and the rule shall take effect at such time as the agency promulgating the rule determines. 5 U.S.C. 808(2). Pursuant to section 808(2), for the reasons discussed above, Treasury for good cause finds that a 60-day delay to provide public notice is impracticable and contrary to the public interest. Paperwork Reduction Act The information collections associated with State, territory, local, and Tribal government applications materials necessary to receive Fiscal Recovery Funds (e.g., payment information collection and acceptance of award terms) have been reviewed and approved by OMB pursuant to the Paperwork Reduction Act (44 U.S.C. chapter 35) (PRA) emergency processing procedures and assigned control number 1505–0271. The information collections related to ongoing reporting requirements, as discussed in this interim final rule, will be submitted to OMB for emergency processing in the near future. Under the PRA, an agency may not conduct or sponsor and a respondent is not required to respond to, an information collection unless it displays a valid OMB control number. Estimates of hourly burden under this program are set forth in the table below. Burden estimates below are preliminary. Hours per response Total burden in hours Cost to respondent ($48.80 per hour *) Recipient Payment Form ..................... Acceptance of Award Terms ............... Title VI Assurances ............................. Quarterly Project and Expenditure Report. Annual Project and Expenditure Report from NEUs. Annual Recovery Plan Performance report. 5,050 5,050 5,050 5,050 1 ..................... 1 ..................... 1 ..................... 4*** ................. 5,050 5,050 5,050 20,200 .25 (15 minutes) ... .25 (15 minutes) ... .50 (30 minutes) ... 25 ......................... 1,262.5 1,262.5 2,525 505,000 $61,610 61,610 123,220 24,644,000 TBD 1 per year ....... † 20,000–40,000 15 ......................... 300,000–600,000 14,640,000–29,280,000 418 1 per year ....... 418 100 ....................... 41,800 2,039,840 Total .............................................. (**) N/A ................. 55,768–75,768 141 ....................... 851,850–1,151,850 41,570,280–56,210,280 *Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, Accountants and Auditors, on the internet at https://www.bls.gov/ooh/business-and-financial/accountants-and-auditors.htm (visited March 28, 2020). Base wage of $33.89/hour increased by 44 percent to account for fully loaded employer cost of employee compensation (benefits, etc.) for a fully loaded wage rate of $48.80. **5,050–TBD. ***Per year after first year. † (Estimate only). Periodic reporting is required by section 602(c) of Section VI of the Social Security Act and under the interim final rule. VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 As discussed in Section VIII of this recipients of Fiscal Recovery Funds will be required to submit one interim report SUPPLEMENTARY INFORMATION, PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 and thereafter quarterly Project and Expenditure reports until the end of the award period. Recipients must submit interim reports to Treasury by August E:\FR\FM\17MYR2.SGM 17MYR2 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations 31, 2021. The quarterly Project and Expenditure reports will include financial data, information on contracts and subawards over $50,000, types of projects funded, and other information regarding a recipient’s utilization of the award funds. Nonentitlement unit recipients will be required to submit annual Project and Expenditure reports until the end of the award period. The initial annual Project and Expenditure report for Nonentitlement unit recipients must be submitted to Treasury by October 31, 2021. The subsequent annual reports must be submitted to Treasury by October 31 each year. States, territories, metropolitan cities, and counties with a population that exceeds 250,000 residents will also be required to submit an annual Recovery Plan Performance report to Treasury. The Recovery Plan Performance report will include descriptions of the projects funded and information on the performance indicators and objectives of the award. Each annual Recovery Plan Performance report must be posted on the publicfacing website of the recipient. Treasury will provide additional guidance and instructions on the all the reporting requirements outlined above for the Fiscal Recovery Funds program at a later date. These and related periodic reporting requirements are under consideration and will be submitted to OMB for approval under the PRA emergency provisions in the near future. Treasury invites comments on all aspects of the reporting and recordkeeping requirements including: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility; (b) the accuracy of the estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Comments should be sent by the comment deadline to the www.regulations.gov docket with a copy to the Office of Information and Regulatory Affairs, U.S. Office of Management and Budget, 725 17th Street NW, Washington, DC 20503; or email to oira_submission@omb.eop.gov. Regulatory Flexibility Analysis The Regulatory Flexibility Act (RFA) generally requires that when an agency issues a proposed rule, or a final rule VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 pursuant to section 553(b) of the Administrative Procedure Act or another law, the agency must prepare a regulatory flexibility analysis that meets the requirements of the RFA and publish such analysis in the Federal Register. 5 U.S.C. 603, 604. Rules that are exempt from notice and comment under the APA are also exempt from the RFA requirements, including the requirement to conduct a regulatory flexibility analysis, when among other things the agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. Since this rule is exempt from the notice and comment requirements of the APA, Treasury is not required to conduct a regulatory flexibility analysis. List of Subjects in 31 CFR Part 35 Executive compensation, Public health emergency, State and local governments, Tribal governments. For the reasons stated in the preamble, the Department of the Treasury amends 31 CFR part 35 as follows: PART 35—PANDEMIC RELIEF PROGRAMS 1. The authority citation for part 35 is revised to read as follows: ■ Authority: 42 U.S.C. 802(f); 42 U.S.C. 803(f); 31 U.S.C. 321; Division N, Title V, Subtitle B, Pub. L. 116–260, 134 Stat. 1182; Section 104A, Pub. L. 103–325, 108 Stat. 2160, as amended (12 U.S.C. 4701 et seq.); Pub. L. 117–2, 135 Stat. 4 (42 U.S.C. 802 et seq.). 2. Revise the part heading to read as set forth above. ■ 3. Add subpart A to read as follows: ■ Subpart A—Coronavirus State and Local Fiscal Recovery Funds Sec. 35.1 Purpose. 35.2 Applicability. 35.3 Definitions. 35.4 Reservation of authority, reporting. 35.5 Use of funds. 35.6 Eligible uses. 35.7 Pensions. 35.8 Tax. 35.9 Compliance with applicable laws. 35.10 Recoupment. 35.11 Payments to States. 35.12 Distributions to nonentitlement units of local government and units of general local government. § 35.1 Purpose. This subpart implements section 9901 of the American Rescue Plan Act (Subtitle M of Title IX of Pub. L. 117–2), which amends Title VI of the Social Security Act (42 U.S.C. 801 et PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 26819 seq.) by adding sections 602 and 603 to establish the Coronavirus State Fiscal Recovery Fund and Coronavirus Local Fiscal Recovery Fund. § 35.2 Applicability. This subpart applies to States, territories, Tribal governments, metropolitan cities, nonentitlement units of local government, counties, and units of general local government that accept a payment or transfer of funds made under section 602 or 603 of the Social Security Act. § 35.3 Definitions. As used in this subpart: Baseline means tax revenue of the recipient for its fiscal year ending in 2019, adjusted for inflation in each reporting year using the Bureau of Economic Analysis’s Implicit Price Deflator for the gross domestic product of the United States. County means a county, parish, or other equivalent county division (as defined by the Census Bureau). Covered benefits include, but are not limited to, the costs of all types of leave (vacation, family-related, sick, military, bereavement, sabbatical, jury duty), employee insurance (health, life, dental, vision), retirement (pensions, 401(k)), unemployment benefit plans (Federal and State), workers’ compensation insurance, and Federal Insurance Contributions Act taxes (which includes Social Security and Medicare taxes). Covered change means a change in law, regulation, or administrative interpretation. A change in law includes any final legislative or regulatory action, a new or changed administrative interpretation, and the phase-in or taking effect of any statute or rule if the phase-in or taking effect was not prescribed prior to the start of the covered period. Covered period means, with respect to a State, Territory, or Tribal government, the period that: (1) Begins on March 3, 2021; and (2) Ends on the last day of the fiscal year of such State, Territory, or Tribal government in which all funds received by the State, Territory, or Tribal government from a payment made under section 602 or 603 of the Social Security Act have been expended or returned to, or recovered by, the Secretary. COVID–19 means the Coronavirus Disease 2019. COVID–19 public health emergency means the period beginning on January 27, 2020 and until the termination of the national emergency concerning the COVID–19 outbreak declared pursuant to the National Emergencies Act (50 U.S.C. 1601 et seq.). E:\FR\FM\17MYR2.SGM 17MYR2 26820 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations Deposit means an extraordinary payment of an accrued, unfunded liability. The term deposit does not refer to routine contributions made by an employer to pension funds as part of the employer’s obligations related to payroll, such as either a pension contribution consisting of a normal cost component related to current employees or a component addressing the amortization of unfunded liabilities calculated by reference to the employer’s payroll costs. Eligible employer means an employer of an eligible worker who performs essential work. Eligible workers means workers needed to maintain continuity of operations of essential critical infrastructure sectors, including health care; emergency response; sanitation, disinfection, and cleaning work; maintenance work; grocery stores, restaurants, food production, and food delivery; pharmacy; biomedical research; behavioral health work; medical testing and diagnostics; homeand community-based health care or assistance with activities of daily living; family or child care; social services work; public health work; vital services to Tribes; any work performed by an employee of a State, local, or Tribal government; educational work, school nutrition work, and other work required to operate a school facility; laundry work; elections work; solid waste or hazardous materials management, response, and cleanup work; work requiring physical interaction with patients; dental care work; transportation and warehousing; work at hotel and commercial lodging facilities that are used for COVID–19 mitigation and containment; work in a mortuary; work in critical clinical research, development, and testing necessary for COVID–19 response. (1) With respect to a recipient that is a metropolitan city, nonentitlement unit of local government, or county, workers in any additional sectors as each chief executive officer of such recipient may designate as critical to protect the health and well-being of the residents of their metropolitan city, nonentitlement unit of local government, or county; or (2) With respect to a State, Territory, or Tribal government, workers in any additional sectors as each Governor of a State or Territory, or each Tribal government, may designate as critical to protect the health and well-being of the residents of their State, Territory, or Tribal government. Essential work means work that: (1) Is not performed while teleworking from a residence; and (2) Involves: VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 (i) Regular in-person interactions with patients, the public, or coworkers of the individual that is performing the work; or (ii) Regular physical handling of items that were handled by, or are to be handled by patients, the public, or coworkers of the individual that is performing the work. Funds means, with respect to a recipient, amounts provided to the recipient pursuant to a payment made under section 602(b) or 603(b) of the Social Security Act or transferred to the recipient pursuant to section 603(c)(4) of the Social Security Act. General revenue means money that is received from tax revenue, current charges, and miscellaneous general revenue, excluding refunds and other correcting transactions, proceeds from issuance of debt or the sale of investments, agency or private trust transactions, and intergovernmental transfers from the Federal Government, including transfers made pursuant to section 9901 of the American Rescue Plan Act. General revenue does not include revenues from utilities. Revenue from Tribal business enterprises must be included in general revenue. Intergovernmental transfers means money received from other governments, including grants and shared taxes. Metropolitan city has the meaning given that term in section 102(a)(4) of the Housing and Community Development Act of 1974 (42 U.S.C. 5302(a)(4)) and includes cities that relinquish or defer their status as a metropolitan city for purposes of receiving allocations under section 106 of such Act (42 U.S.C. 5306) for fiscal year 2021. Net reduction in total spending is measured as the State or Territory’s total spending for a given reporting year excluding its spending of funds, subtracted from its total spending for its fiscal year ending in 2019, adjusted for inflation using the Bureau of Economic Analysis’s Implicit Price Deflator for the gross domestic product of the United States. Nonentitlement unit of local government means a ‘‘city,’’ as that term is defined in section 102(a)(5) of the Housing and Community Development Act of 1974 (42 U.S.C. 5302(a)(5)), that is not a metropolitan city. Nonprofit means a nonprofit organization that is exempt from Federal income taxation and that is described in section 501(c)(3) of the Internal Revenue Code. Obligation means an order placed for property and services and entering into PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 contracts, subawards, and similar transactions that require payment. Pension fund means a defined benefit plan and does not include a defined contribution plan. Premium pay means an amount of up to $13 per hour that is paid to an eligible worker, in addition to wages or remuneration the eligible worker otherwise receives, for all work performed by the eligible worker during the COVID–19 public health emergency. Such amount may not exceed $25,000 with respect to any single eligible worker. Premium pay will be considered to be in addition to wages or remuneration the eligible worker otherwise receives if, as measured on an hourly rate, the premium pay is: (1) With regard to work that the eligible worker previously performed, pay and remuneration equal to the sum of all wages and remuneration previously received plus up to $13 per hour with no reduction, substitution, offset, or other diminishment of the eligible worker’s previous, current, or prospective wages or remuneration; or (2) With regard to work that the eligible worker continues to perform, pay of up to $13 that is in addition to the eligible worker’s regular rate of wages or remuneration, with no reduction, substitution, offset, or other diminishment of the workers’ current and prospective wages or remuneration. Qualified census tract has the same meaning given in 26 U.S.C. 42(d)(5)(B)(ii)(I). Recipient means a State, Territory, Tribal government, metropolitan city, nonentitlement unit of local government, county, or unit of general local government that receives a payment made under section 602(b) or 603(b) of the Social Security Act or transfer pursuant to section 603(c)(4) of the Social Security Act. Reporting year means a single year or partial year within the covered period, aligned to the current fiscal year of the State or Territory during the covered period. Secretary means the Secretary of the Treasury. State means each of the 50 States and the District of Columbia. Small business means a business concern or other organization that: (1) Has no more than 500 employees, or if applicable, the size standard in number of employees established by the Administrator of the Small Business Administration for the industry in which the business concern or organization operates; and (2) Is a small business concern as defined in section 3 of the Small Business Act (15 U.S.C. 632). E:\FR\FM\17MYR2.SGM 17MYR2 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations Tax revenue means revenue received from a compulsory contribution that is exacted by a government for public purposes excluding refunds and corrections and, for purposes of § 35.8, intergovernmental transfers. Tax revenue does not include payments for a special privilege granted or service rendered, employee or employer assessments and contributions to finance retirement and social insurance trust systems, or special assessments to pay for capital improvements. Territory means the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, or American Samoa. Tribal enterprise means a business concern: (1) That is wholly owned by one or more Tribal governments, or by a corporation that is wholly owned by one or more Tribal governments; or (2) That is owned in part by one or more Tribal governments, or by a corporation that is wholly owned by one or more Tribal governments, if all other owners are either United States citizens or small business concerns, as these terms are used and consistent with the definitions in 15 U.S.C. 657a(b)(2)(D). Tribal government means the recognized governing body of any Indian or Alaska Native tribe, band, nation, pueblo, village, community, component band, or component reservation, individually identified (including parenthetically) in the list published by the Bureau of Indian Affairs on January 29, 2021, pursuant to section 104 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5131). Unemployment rate means the U–3 unemployment rate provided by the Bureau of Labor Statistics as part of the Local Area Unemployment Statistics program, measured as total unemployment as a percentage of the civilian labor force. Unemployment trust fund means an unemployment trust fund established under section 904 of the Social Security Act (42 U.S.C. 1104). Unit of general local government has the meaning given to that term in section 102(a)(1) of the Housing and Community Development Act of 1974 (42 U.S.C. 5302(a)(1)). Unserved and underserved households or businesses means one or more households or businesses that are not currently served by a wireline connection that reliably delivers at least 25 Mbps download speed and 3 Mbps of upload speed. VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 § 35.4 Reservation of authority, reporting. (a) Reservation of authority. Nothing in this subpart shall limit the authority of the Secretary to take action to enforce conditions or violations of law, including actions necessary to prevent evasions of this subpart. (b) Extensions or accelerations of timing. The Secretary may extend or accelerate any deadline or compliance date of this subpart, including reporting requirements that implement this subpart, if the Secretary determines that such extension or acceleration is appropriate. In determining whether an extension or acceleration is appropriate, the Secretary will consider the period of time that would be extended or accelerated and how the modified timeline would facilitate compliance with this subpart. (c) Reporting and requests for other information. During the covered period, recipients shall provide to the Secretary periodic reports providing detailed accounting of the uses of funds, all modifications to a State or Territory’s tax revenue sources, and such other information as the Secretary may require for the administration of this section. In addition to regular reporting requirements, the Secretary may request other additional information as may be necessary or appropriate, including as may be necessary to prevent evasions of the requirements of this subpart. False statements or claims made to the Secretary may result in criminal, civil, or administrative sanctions, including fines, imprisonment, civil damages and penalties, debarment from participating in Federal awards or contracts, and/or any other remedy available by law. § 35.5 Use of funds. (a) In general. A recipient may only use funds to cover costs incurred during the period beginning March 3, 2021, and ending December 31, 2024, for one or more of the purposes enumerated in sections 602(c)(1) and 603(c)(1) of the Social Security Act, as applicable, including those enumerated in section § 35.6, subject to the restrictions set forth in sections 602(c)(2) and 603(c)(2) of the Social Security Act, as applicable. (b) Costs incurred. A cost shall be considered to have been incurred for purposes of paragraph (a) of this section if the recipient has incurred an obligation with respect to such cost by December 31, 2024. (c) Return of funds. A recipient must return any funds not obligated by December 31, 2024, and any funds not expended to cover such obligations by December 31, 2026. PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 § 35.6 26821 Eligible uses. (a) In general. Subject to §§ 35.7 and 35.8, a recipient may use funds for one or more of the purposes described in paragraphs (b) through (e) of this section (b) Responding to the public health emergency or its negative economic impacts. A recipient may use funds to respond to the public health emergency or its negative economic impacts, including for one or more of the following purposes: (1) COVID–19 response and prevention. Expenditures for the mitigation and prevention of COVID–19, including: (i) Expenses related to COVID–19 vaccination programs and sites, including staffing, acquisition of equipment or supplies, facilities costs, and information technology or other administrative expenses; (ii) COVID–19-related expenses of public hospitals, clinics, and similar facilities; (iii) COVID–19 related expenses in congregate living facilities, including skilled nursing facilities, long-term care facilities, incarceration settings, homeless shelters, residential foster care facilities, residential behavioral health treatment, and other group living facilities; (iv) Expenses of establishing temporary public medical facilities and other measures to increase COVID–19 treatment capacity, including related construction costs and other capital investments in public facilities to meet COVID–19-related operational needs; (v) Expenses of establishing temporary public medical facilities and other measures to increase COVID–19 treatment capacity, including related construction costs and other capital investments in public facilities to meet COVID–19-related operational needs; (vi) Costs of providing COVID–19 testing and monitoring, contact tracing, and monitoring of case trends and genomic sequencing for variants; (vii) Emergency medical response expenses, including emergency medical transportation, related to COVID–19; (viii) Expenses for establishing and operating public telemedicine capabilities for COVID–19-related treatment; (ix) Expenses for communication related to COVID–19 vaccination programs and communication or enforcement by recipients of public health orders related to COVID–19; (x) Expenses for acquisition and distribution of medical and protective supplies, including sanitizing products and personal protective equipment; (xi) Expenses for disinfection of public areas and other facilities in E:\FR\FM\17MYR2.SGM 17MYR2 26822 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations response to the COVID–19 public health emergency; (xii) Expenses for technical assistance to local authorities or other entities on mitigation of COVID–19-related threats to public health and safety; (xiii) Expenses for quarantining or isolation of individuals; (xiv) Expenses of providing paid sick and paid family and medical leave to public employees to enable compliance with COVID–19 public health precautions; (xv) Expenses for treatment of the long-term symptoms or effects of COVID–19, including post-intensive care syndrome; (xvi) Expenses for the improvement of ventilation systems in congregate settings, public health facilities, or other public facilities; (xvii) Expenses related to establishing or enhancing public health data systems; and (xviii) Mental health treatment, substance misuse treatment, and other behavioral health services. (2) Public health and safety staff. Payroll and covered benefit expenses for public safety, public health, health care, human services, and similar employees to the extent that the employee’s time is spent mitigating or responding to the COVID–19 public health emergency. (3) Hiring State and local government staff. Payroll, covered benefit, and other costs associated with the recipient increasing the number of its employees up to the number of employees that it employed on January 27, 2020. (4) Assistance to unemployed workers. Assistance, including job training, for individuals who want and are available for work, including those who have looked for work sometime in the past 12 months or who are employed part time but who want and are available for full-time work. (5) Contributions to State unemployment insurance trust funds. Contributions to an unemployment trust fund up to the level required to restore the unemployment trust fund to its balance on January 27, 2020 or to pay back advances received under Title XII of the Social Security Act (42 U.S.C. 1321) for the payment of benefits between January 27, 2020 and May 17, 2021. (6) Small businesses. Assistance to small businesses, including loans, grants, in-kind assistance, technical assistance or other services, that responds to the negative economic impacts of the COVID–19 public health emergency. (7) Nonprofits. Assistance to nonprofit organizations, including loans, grants, in-kind assistance, technical assistance VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 or other services, that responds to the negative economic impacts of the COVID–19 public health emergency. (8) Assistance to households. Assistance programs, including cash assistance programs, that respond to the COVID–19 public health emergency. (9) Aid to impacted industries. Aid to tourism, travel, hospitality, and other impacted industries that responds to the negative economic impacts of the COVID–19 public health emergency. (10) Expenses to improve efficacy of public health or economic relief programs. Administrative costs associated with the recipient’s COVID– 19 public health emergency assistance programs, including services responding to the COVID–19 public health emergency or its negative economic impacts, that are not federally funded. (11) Survivor’s benefits. Benefits for the surviving family members of individuals who have died from COVID–19, including cash assistance to widows, widowers, or dependents of individuals who died of COVID–19. (12) Disproportionately impacted populations and communities. A program, service, or other assistance that is provided in a qualified census tract, that is provided to households and populations living in a qualified census tract, that is provided by a Tribal government, or that is provided to other households, businesses, or populations disproportionately impacted by the COVID–19 public health emergency, such as: (i) Programs or services that facilitate access to health and social services, including: (A) Assistance accessing or applying for public benefits or services; (B) Remediation of lead paint or other lead hazards; and (C) Community violence intervention programs; (ii) Programs or services that address housing insecurity, lack of affordable housing, or homelessness, including: (A) Supportive housing or other programs or services to improve access to stable, affordable housing among individuals who are homeless; (B) Development of affordable housing to increase supply of affordable and high-quality living units; and (C) Housing vouchers and assistance relocating to neighborhoods with higher levels of economic opportunity and to reduce concentrated areas of low economic opportunity; (iii) Programs or services that address or mitigate the impacts of the COVID– 19 public health emergency on education, including: (A) New or expanded early learning services; PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 (B) Assistance to high-poverty school districts to advance equitable funding across districts and geographies; and (C) Educational and evidence-based services to address the academic, social, emotional, and mental health needs of students; and (iv) Programs or services that address or mitigate the impacts of the COVID– 19 public health emergency on childhood health or welfare, including: (A) New or expanded childcare; (B) Programs to provide home visits by health professionals, parent educators, and social service professionals to individuals with young children to provide education and assistance for economic support, health needs, or child development; and (C) Services for child welfareinvolved families and foster youth to provide support and education on child development, positive parenting, coping skills, or recovery for mental health and substance use. (c) Providing premium pay to eligible workers. A recipient may use funds to provide premium pay to eligible workers of the recipient who perform essential work or to provide grants to eligible employers, provided that any premium pay or grants provided under this paragraph (c) must respond to eligible workers performing essential work during the COVID–19 public health emergency. A recipient uses premium pay or grants provided under this paragraph (c) to respond to eligible workers performing essential work during the COVID–19 public health emergency if it prioritizes low- and moderate-income persons. The recipient must provide, whether for themselves or on behalf of a grantee, a written justification to the Secretary of how the premium pay or grant provided under this paragraph (c) responds to eligible workers performing essential work if the premium pay or grant would increase an eligible worker’s total wages and remuneration above 150 percent of such eligible worker’s residing State’s average annual wage for all occupations or their residing county’s average annual wage, whichever is higher. (d) Providing government services. For the provision of government services to the extent of a reduction in the recipient’s general revenue, calculated according to paragraphs (d)(1) and (2) of this section. (1) Frequency. A recipient must calculate the reduction in its general revenue using information as-of December 31, 2020, December 31, 2021, December 31, 2022, and December 31, 2023 (each, a calculation date) and following each calculation date. E:\FR\FM\17MYR2.SGM 17MYR2 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations 26823 (2) Calculation. A reduction in a recipient’s general revenue equals: Max {[Base Year Revenue* (1 + Growth Adjustment)(~~)] -Actual General Revenue6 O} (e) To make necessary investments in infrastructure. A recipient may use funds to make investments in: (1) Clean Water State Revolving Fund and Drinking Water State Revolving Fund investments. Projects or activities of the type that would be eligible under section 603(c) of the Federal Water Pollution Control Act (33 U.S.C. 1383(c)) or section 1452 of the Safe Drinking Water Act (42 U.S.C. 300j–12); or, (2) Broadband. Broadband infrastructure that is designed to provide service to unserved or underserved households and businesses and that is designed to, upon completion: (i) Reliably meet or exceed symmetrical 100 Mbps download speed and upload speeds; or (ii) In cases where it is not practicable, because of the excessive cost of the project or geography or topography of the area to be served by the project, to provide service meeting the standards set forth in paragraph (e)(2)(i) of this section: (A) Reliably meet or exceed 100 Mbps download speed and between at least 20 Mbps and 100 Mbps upload speed; and (B) Be scalable to a minimum of 100 Mbps download speed and 100 Mbps upload speed. § 35.7 Pensions. A recipient may not use funds for deposit into any pension fund. § 35.8 Tax. (a) Restriction. A State or Territory shall not use funds to either directly or indirectly offset a reduction in the net tax revenue of the State or Territory VerDate Sep<11>2014 20:07 May 14, 2021 Jkt 253001 resulting from a covered change during the covered period. (b) Violation. Treasury will consider a State or Territory to have used funds to offset a reduction in net tax revenue if, during a reporting year: (1) Covered change. The State or Territory has made a covered change that, either based on a reasonable statistical methodology to isolate the impact of the covered change in actual revenue or based on projections that use reasonable assumptions and do not incorporate the effects of macroeconomic growth to reduce or increase the projected impact of the covered change, the State or Territory assesses has had or predicts to have the effect of reducing tax revenue relative to current law; (2) Exceeds the de minimis threshold. The aggregate amount of the measured or predicted reductions in tax revenue caused by covered changes identified under paragraph (b)(1) of this section, in the aggregate, exceeds 1 percent of the State’s or Territory’s baseline; (3) Reduction in net tax revenue. The State or Territory reports a reduction in net tax revenue, measured as the difference between actual tax revenue and the State’s or Territory’s baseline, each measured as of the end of the reporting year; and (4) Consideration of other changes. The aggregate amount of measured or predicted reductions in tax revenue caused by covered changes is greater than the sum of the following, in each case, as calculated for the reporting year: (i) The aggregate amount of the expected increases in tax revenue caused by one or more covered changes that, either based on a reasonable statistical methodology to isolate the impact of the covered change in actual revenue or based on projections that use reasonable assumptions and do not incorporate the effects of macroeconomic growth to reduce or increase the projected impact of the covered change, the State or Territory assesses has had or predicts to have the effect of increasing tax revenue; and (ii) Reductions in spending, up to the amount of the State’s or Territory’s net reduction in total spending, that are in: (A) Departments, agencies, or authorities in which the State or Territory is not using funds; and PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 (B) Departments, agencies, or authorities in which the State or Territory is using funds, in an amount equal to the value of the spending cuts in those departments, agencies, or authorities, minus funds used. (c) Amount and revenue reduction cap. If a State or Territory is considered to be in violation pursuant to paragraph (b) of this section, the amount used in violation of paragraph (a) of this section is equal to the lesser of: (1) The reduction in net tax revenue of the State or Territory for the reporting year, measured as the difference between the State’s or Territory’s baseline and its actual tax revenue, each measured as of the end of the reporting year; and, (2) The aggregate amount of the reductions in tax revenues caused by covered changes identified in paragraph (b)(1) of this section, minus the sum of the amounts in identified in paragraphs (b)(4)(i) and (ii). § 35.9 Compliance with applicable laws. A recipient must comply with all other applicable Federal statutes, regulations, and Executive orders, and a recipient shall provide for compliance with the American Rescue Plan Act, this subpart, and any interpretive guidance by other parties in any agreements it enters into with other parties relating to these funds. § 35.10 Recoupment. (a) Identification of violations—(1) In general. Any amount used in violation of § 35.5, § 35.6, or § 35.7 may be identified at any time prior to December 31, 2026. (2) Annual reporting of amounts of violations. On an annual basis, a recipient that is a State or Territory must calculate and report any amounts used in violation of § 35.8. (b) Calculation of amounts subject to recoupment—(1) In general. Except as provided in paragraph (b)(2) of this section, Treasury will calculate any amounts subject to recoupment resulting from a violation of § 35.5, § 35.6, or § 35.7 as the amounts used in violation of such restrictions. (2) Violations of § 35.8. Treasury will calculate any amounts subject to recoupment resulting from a violation of § 35.8, equal to the lesser of: (i) The amount set forth in § 35.8(c); and, E:\FR\FM\17MYR2.SGM 17MYR2 ER17MY21.003</GPH> Where: Base Year Revenue is the recipient’s general revenue for the most recent full fiscal year prior to the COVD–19 public health emergency; Growth Adjustment is equal to the greater of 4.1 percent (or 0.041) and the recipient’s average annual revenue growth over the three full fiscal years prior to the COVID–19 public health emergency. n equals the number of months elapsed from the end of the base year to the calculation date. Actual General Revenue is a recipient’s actual general revenue collected during 12-month period ending on each calculation date; Subscript t denotes the specific calculation date. 26824 Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and Regulations (ii) The amount of funds received by such recipient. (c) Notice. If Treasury calculates an amount subject to recoupment under paragraph (b) of this section, Treasury will provide the recipient a written notice of the amount subject to recoupment along with an explanation of such amounts. (d) Request for reconsideration. Unless Treasury extends the time period, within 60 calendar days of receipt of a notice of recoupment provided under paragraph (c) of this section, a recipient may submit a written request to Treasury requesting reconsideration of any amounts subject to recoupment under paragraph (b) of this section. To request reconsideration of any amounts subject to recoupment, a recipient must submit to Treasury a written request that includes: (1) An explanation of why the recipient believes all or some of the amount should not be subject to recoupment; and (2) A discussion of supporting reasons, along with any additional information. (e) Final amount subject to recoupment. Unless Treasury extends the time period, within 60 calendar days of receipt of the recipient’s request for reconsideration provided pursuant to paragraph (d) of this section, the recipient will be notified of the Secretary’s decision to affirm, withdraw, or modify the notice of recoupment. Such notification will include an explanation of the decision, including responses to the recipient’s supporting reasons and consideration of additional information provided. (f) Repayment of funds. Unless Treasury extends the time period, a recipient shall repay to the Secretary any amounts subject to recoupment in accordance with instructions provided by Treasury: (1) Within 120 calendar days of receipt of the notice of recoupment provided under paragraph (c) of this section, in the case of a recipient that does not submit a request for reconsideration in accordance with the VerDate Sep<11>2014 19:28 May 14, 2021 Jkt 253001 requirements of paragraph (d) of this section; or (2) Within 120 calendar days of receipt of the Secretary’s decision under paragraph (e) of this section, in the case of a recipient that submits a request for reconsideration in accordance with the requirements of paragraph (d) of this section. § 35.11 Payments to States. (a) In general. With respect to any State or Territory that has an unemployment rate as of the date that it submits an initial certification for payment of funds pursuant to section 602(d)(1) of the Social Security Act that is less than two percentage points above its unemployment rate in February 2020, the Secretary will withhold 50 percent of the amount of funds allocated under section 602(b) of the Social Security Act to such State or territory until the date that is twelve months from the date such initial certification is provided to the Secretary. (b) Payment of withheld amount. In order to receive the amount withheld under paragraph (a) of this section, the State or Territory must submit to the Secretary at least 30 days prior to the date referenced in paragraph (a) the following information: (1) A certification, in the form provided by the Secretary, that such State or Territory requires the payment to carry out the activities specified in section 602(c) of the Social Security Act and will use the payment in compliance with section 602(c) of the Social Security Act; and, (2) Any reports required to be filed by that date pursuant to this subpart that have not yet been filed. § 35.12 Distributions to nonentitlement units of local government and units of general local government. (a) Nonentitlement units of local government. Each State or Territory that receives a payment from Treasury pursuant to section 603(b)(2)(B) of the Social Security Act shall distribute the amount of the payment to nonentitlement units of government in such State or Territory in accordance PO 00000 Frm 00040 Fmt 4701 Sfmt 9990 with the requirements set forth in section 603(b)(2)(C) of the Social Security Act and without offsetting any debt owed by such nonentitlement units of local governments against such payments. (b) Budget cap. A State or Territory may not make a payment to a nonentitlement unit of local government pursuant to section 603(b)(2)(C) of the Social Security Act and paragraph (a) of this section in excess of the amount equal to 75 percent of the most recent budget for the nonentitlement unit of local government as of January 27, 2020. A State or Territory shall permit a nonentitlement unit of local government without a formal budget as of January 27, 2020, to provide a certification from an authorized officer of the nonentitlement unit of local government of its most recent annual expenditures as of January 27, 2020, and a State or Territory may rely on such certification for purposes of complying with this paragraph (b). (c) Units of general local government. Each State or Territory that receives a payment from Treasury pursuant to section 603(b)(3)(B)(ii) of the Social Security Act, in the case of an amount to be paid to a county that is not a unit of general local government, shall distribute the amount of the payment to units of general local government within such county in accordance with the requirements set forth in section 603(b)(3)(B)(ii) of the Social Security Act and without offsetting any debt owed by such units of general local government against such payments. (d) Additional conditions. A State or Territory may not place additional conditions or requirements on distributions to nonentitlement units of local government or units of general local government beyond those required by section 603 of the Social Security Act or this subpart. Laurie Schaffer, Acting General Counsel. [FR Doc. 2021–10283 Filed 5–13–21; 11:15 am] BILLING CODE 4810–AK–P E:\FR\FM\17MYR2.SGM 17MYR2

Agencies

DEPARTMENT OF THE TREASURY

[Federal Register Volume 86, Number 93 (Monday, May 17, 2021)]
[Rules and Regulations]
[Pages 26786-26824]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10283]

[[Page 26785]]

Vol. 86

Monday,

No. 93

May 17, 2021

Part II

Department of the Treasury

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31 CFR Part 35

Coronavirus State and Local Fiscal Recovery Funds; Interim Final Rule

Federal Register / Vol. 86, No. 93 / Monday, May 17, 2021 / Rules and
Regulations

[[Page 26786]]

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DEPARTMENT OF THE TREASURY

31 CFR Part 35

RIN 1505-AC77

Coronavirus State and Local Fiscal Recovery Funds

AGENCY: Department of the Treasury.

ACTION: Interim final rule.

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SUMMARY: The Secretary of the Treasury (Treasury) is issuing this
interim final rule to implement the Coronavirus State Fiscal Recovery
Fund and the Coronavirus Local Fiscal Recovery Fund established under
the American Rescue Plan Act.

DATES: Effective date: The provisions in this interim final rule are
effective May 17, 2021.
Comment date: Comments must be received on or before July 16, 2021.
ADDRESSES: Please submit comments electronically through the Federal
eRulemaking Portal: https://www.regulations.gov. Comments can be mailed
to the Office of the Undersecretary for Domestic Finance, Department of
the Treasury, 1500 Pennsylvania Avenue NW, Washington, DC 20220.
Because postal mail may be subject to processing delay, it is
recommended that comments be submitted electronically. All comments
should be captions with ``Coronavirus State and Local Fiscal Recovery
Funds Interim Final Rule Comments.'' Please include your name,
organization affiliation, address, email address and telephone number
in your comment. Where appropriate, a comment should include a short
executive summary.
In general, comments received will be posted on https://www.regulations.gov without change, including any business or personal
information provided. Comments received, including attachments and
other supporting materials, will be part of the public record and
subject to public disclosure. Do not enclose any information in your
comment or supporting materials that you consider confidential or
inappropriate for public disclosure.

FOR FURTHER INFORMATION CONTACT: Katharine Richards, Senior Advisor,
Office of Recovery Programs, Department of the Treasury, (844) 529-
9527.

SUPPLEMENTARY INFORMATION:

I. Background Information

A. Overview

Since the first case of coronavirus disease 2019 (COVID-19) was
discovered in the United States in January 2020, the disease has
infected over 32 million and killed over 575,000 Americans.\1\ The
disease has impacted every part of life: As social distancing became a
necessity, businesses closed, schools transitioned to remote education,
travel was sharply reduced, and millions of Americans lost their jobs.
In April 2020, the national unemployment rate reached its highest level
in over seventy years following the most severe month-over-month
decline in employment on record.\2\ As of April 2021, there were still
8.2 million fewer jobs than before the pandemic.\3\ During this time, a
significant share of households have faced food and housing
insecurity.\4\ Economic disruptions impaired the flow of credit to
households, State and local governments, and businesses of all
sizes.\5\ As businesses weathered closures and sharp declines in
revenue, many were forced to shut down, especially small businesses.\6\
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\1\ Centers for Disease Control and Prevention, COVID Data
Tracker, https://www.covid.cdc.gov/covid-data-tracker/#datatracker-home (last visited May 8, 2021).
\2\ U.S. Bureau of Labor Statistics, Unemployment Rate [UNRATE],
retrieved from FRED, Federal Reserve Bank of St. Louis; https://fred.stlouisfed.org/series/UNRATE, May 3, 2021. U.S. Bureau of Labor
Statistics, Employment Level [LNU02000000], retrieved from FRED,
Federal Reserve Bank of St. Louis; https://fred.stlouisfed.org/series/LNU02000000, May 3, 2021.
\3\ U.S. Bureau of Labor Statistics, All Employees, Total
Nonfarm [PAYEMS], retrieved from FRED, Federal Reserve Bank of St.
Louis; https://fred.stlouisfed.org/series/PAYEMS, May 7, 2021.
\4\ Nirmita Panchal et al., The Implications of COVID-19 for
Mental Health and Substance Abuse (Feb. 10, 2021), https://
www.kff.org/coronavirus-covid-19/issue-brief/the-implications-of-
covid-19-for-mental-health-and-substance-use/
#:~:text=Older%20adults%20are%20also%20more,prior%20to%20the%20curren
t%20crisis; U.S. Census Bureau, Household Pulse Survey: Measuring
Social and Economic Impacts during the Coronavirus Pandemic, https://www.census.gov/programs-surveys/household-pulse-survey.html (last
visited Apr. 26, 2021); Rebecca T. Leeb et al., Mental Health-
Related Emergency Department Visits Among Children Aged <18 Years
During the COVID Pandemic--United States, January 1--October 17,
2020, Morb. Mortal. Wkly. Rep. 69(45):1675-80 (Nov. 13, 2020),
https://www.cdc.gov/mmwr/volumes/69/wr/mm6945a3.htm.
\5\ Board of Governors of the Federal Reserve System, Monetary
Policy Report (June 12, 2020), https://www.federalreserve.gov/monetarypolicy/2020-06-mpr-summary.htm.
\6\ Joseph R. Biden, Remarks by President Biden on Helping Small
Businesses (Feb. 22, 2021), https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/02/22/remarks-by-president-biden-on-helping-small-businesses/.
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Amid this once-in-a-century crisis, State, territorial, Tribal, and
local governments (State, local, and Tribal governments) have been
called on to respond at an immense scale. Governments have faced myriad
needs to prevent and address the spread of COVID-19, including testing,
contact tracing, isolation and quarantine, public communications,
issuance and enforcement of health orders, expansions to health system
capacity like alternative care facilities, and in recent months, a
massive nationwide mobilization around vaccinations. Governments also
have supported major efforts to prevent COVID-19 spread through safety
measures in settings like nursing homes, schools, congregate living
settings, dense worksites, incarceration settings, and public
facilities. The pandemic's impacts on behavioral health, including the
toll of pandemic-related stress, have increased the need for behavioral
health resources.
At the same time, State, local and Tribal governments launched
major efforts to address the economic impacts of the pandemic. These
efforts have been tailored to the needs of their communities and have
included expanded assistance to unemployed workers; food assistance;
rent, mortgage, and utility support; cash assistance; internet access
programs; expanded services to support individuals experiencing
homelessness; support for individuals with disabilities and older
adults; and assistance to small businesses facing closures or revenue
loss or implementing new safety measures.
In responding to the public health emergency and its negative
economic impacts, State, local, and Tribal governments have seen
substantial increases in costs to provide these services, often amid
substantial declines in revenue due to the economic downturn and
changing economic patterns during the pandemic.\7\ Facing these budget
challenges, many State, local, and Tribal governments have been forced
to make cuts to services or their workforces, or delay critical
investments. From February to May of 2020, State, local, and Tribal
governments reduced their workforces by more than 1.5 million jobs and,
in April of 2021, State, local, and Tribal government employment
remained nearly 1.3 million jobs below pre-pandemic levels.\8\ These
cuts to State, local, and Tribal government workforces

[[Page 26787]]

come at a time when demand for government services is high, with State,
local, and Tribal governments on the frontlines of fighting the
pandemic. Furthermore, State, local, and Tribal government austerity
measures can hamper overall economic growth, as occurred in the
recovery from the Great Recession.\9\
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\7\ Michael Leachman, House Budget Bill Provides Needed Fiscal
Aid for States, Localities, Tribal Nations, and Territories (Feb.
10, 2021), https://www.cbpp.org/research/state-budget-and-tax/house-budget-bill-provides-needed-fiscal-aid-for-states-localities.
\8\ U.S. Bureau of Labor Statistics, All Employees, State
Government [CES9092000001] and All Employees, Local Government
[CES9093000001], retrieved from FRED, Federal Reserve Bank of St.
Louis, https://fred.stlouisfed.org/series/CES9092000001 and https://fred.stlouisfed.org/series/CES9093000001 (last visited May 8, 2021).
\9\ Tracy Gordon, State and Local Budgets and the Great
Recession, Brookings Institution (Dec. 31, 2012), https://www.brookings.edu/articles/state-and-local-budgets-and-the-great-recession.
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Finally, although the pandemic's impacts have been widespread, both
the public health and economic impacts of the pandemic have fallen most
severely on communities and populations disadvantaged before it began.
Low-income communities, people of color, and Tribal communities have
faced higher rates of infection, hospitalization, and death,\10\ as
well as higher rates of unemployment and lack of basic necessities like
food and housing.\11\ Pre-existing social vulnerabilities magnified the
pandemic in these communities, where a reduced ability to work from
home and, frequently, denser housing amplified the risk of infection.
Higher rates of pre-existing health conditions also may have
contributed to more severe COVID-19 health outcomes.\12\ Similarly,
communities or households facing economic insecurity before the
pandemic were less able to weather business closures, job losses, or
declines in earnings and were less able to participate in remote work
or education due to the inequities in access to reliable and affordable
broadband infrastructure.\13\ Finally, though schools in all areas
faced challenges, those in high poverty areas had fewer resources to
adapt to remote and hybrid learning models.\14\ Unfortunately, the
pandemic also has reversed many gains made by communities of color in
the prior economic expansion.\15\
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\10\ Sebastian D. Romano et al., Trends in Racial and Ethnic
Disparities in COVID-19 Hospitalizations, by Region--United States,
March-December 2020, MMWR Morb Mortal Wkly Rep 2021, 70:560-565
(Apr. 16, 2021), https://www.cdc.gov/mmwr/volumes/70/wr/mm7015e2.htm?s_cid=mm7015e2_w.
\11\ Center on Budget and Policy Priorities, Tracking the COVID-
19 Recession's Effects on Food, Housing, and Employment Hardships,
https://www.cbpp.org/research/poverty-and-inequality/tracking-the-covid-19-recessions-effects-on-housing-and (last visited May 4,
2021).
\12\ Lisa R. Fortuna et al., Inequity and the Disproportionate
Impact of COVID-19 on Communities of Color in the United States: The
Need for Trauma-Informed Social Justice Response, Psychological
Trauma Vol. 12(5):443-45 (2020), available at https://psycnet.apa.org/fulltext/2020-37320-001.pdf.
\13\ Emily Vogles et al., 53% of Americans Say the internet Has
Been Essential During the COVID-19 Outbreak (Apr. 30, 2020), https://www.pewresearch.org/internet/2020/04/30/53-of-americans-say-the-internet-has-been-essential-during-the-covid-19-outbreak/.
\14\ Emma Dorn et al., COVID-19 and student learning in the
United States: The hurt could last a lifetime (June 2020), https://webtest.childrensinstitute.net/sites/default/files/documents/COVID-19-and-student-learning-in-the-United-States_FINAL.pdf; Andrew
Bacher-Hicks et al., Inequality in Household Adaptation to Schooling
Shocks: Covid-Induced Online Engagement in Real Time, J. of Public
Econ. Vol. 193(C) (July 2020), available at https://www.nber.org/papers/w27555.
\15\ See, e.g., Tyler Atkinson & Alex Richter, Pandemic
Disproportionately Affects Women, Minority Labor Force
Participation, https://www.dallasfed.org/research/economics/2020/1110 (last visited May 9, 2021); Jared Bernstein & Janelle Jones,
The Impact of the COVID19 Recession on the Jobs and Incomes of
Persons of Color, https://www.cbpp.org/sites/default/files/atoms/files/6-2-20bud_0.pdf (last visited May 9, 2021).
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B. The Statute and Interim Final Rule

On March 11, 2021, the American Rescue Plan Act (ARPA) was signed
into law by the President.\16\ Section 9901 of ARPA amended Title VI of
the Social Security Act \17\ (the Act) to add section 602, which
establishes the Coronavirus State Fiscal Recovery Fund, and section
603, which establishes the Coronavirus Local Fiscal Recovery Fund
(together, the Fiscal Recovery Funds).\18\ The Fiscal Recovery Funds
are intended to provide support to State, local, and Tribal governments
(together, recipients) in responding to the impact of COVID-19 and in
their efforts to contain COVID-19 on their communities, residents, and
businesses. The Fiscal Recovery Funds build on and expand the support
provided to these governments over the last year, including through the
Coronavirus Relief Fund (CRF).\19\
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\16\ American Rescue Plan Act of 2021 (ARPA), sec. 9901, Public
Law 117-2, codified at 42 U.S.C. 802 et seq. The term ``state'' as
used in this SUPPLEMENTARY INFORMATION and defined in section 602 of
the Act means each of the 50 States and the District of Columbia.
The term ``territory'' as used in this SUPPLEMENTARY INFORMATION and
defined in section 602 of the Act means the Commonwealth of Puerto
Rico, the United States Virgin Islands, Guam, the Commonwealth of
Northern Mariana Islands, and American Samoa. Tribal government is
defined in the Act and the interim final rule to mean ``the
recognized governing body of any Indian or Alaska Native tribe,
band, nation, pueblo, village, community, component band, or
component reservation, individually identified (including
parenthetically) in the list published most recently as of the date
of enactment of the [American Rescue Plan Act] pursuant to section
104 of the Federally Recognized Indian Tribe List Act of 1994 (25
U.S.C. 5131).'' See section 602(g)(7) of the Social Security Act, as
added by the American Rescue Plan Act. On January 29, 2021, the
Bureau of Indian Affairs published a current list of 574 Tribal
entities. See 86 FR 7554, January 29, 2021. The term ``local
governments'' as used in this SUPPLEMENTARY INFORMATION includes
metropolitan cities, counties, and nonentitlement units of local
government.
\17\ 42 U.S.C. 801 et seq.
\18\ Sections 602, 603 of the Act.
\19\ The CRF was established by the section 601 of the Act as
added by the Coronavirus Aid, Relief, and Economic Security Act
(CARES Act), Public Law 116-136, 134 Stat. 281 (2020).
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Through the Fiscal Recovery Funds, Congress provided State, local,
and Tribal governments with significant resources to respond to the
COVID-19 public health emergency and its economic impacts through four
categories of eligible uses. Section 602 and section 603 contain the
same eligible uses; the primary difference between the two sections is
that section 602 establishes a fund for States, territories, and Tribal
governments and section 603 establishes a fund for metropolitan cities,
nonentitlement units of local government, and counties. Sections
602(c)(1) and 603(c)(1) provide that funds may be used:
(a) To respond to the public health emergency or its negative
economic impacts, including assistance to households, small businesses,
and nonprofits, or aid to impacted industries such as tourism, travel,
and hospitality;
(b) To respond to workers performing essential work during the
COVID-19 public health emergency by providing premium pay to eligible
workers;
(c) For the provision of government services to the extent of the
reduction in revenue due to the COVID-19 public health emergency
relative to revenues collected in the most recent full fiscal year
prior to the emergency; and
(d) To make necessary investments in water, sewer, or broadband
infrastructure.
In addition, Congress clarified two types of uses which do not fall
within these four categories. Sections 602(c)(2)(B) and 603(c)(2)
provide that these eligible uses do not include, and thus funds may not
be used for, depositing funds into any pension fund. Section
602(c)(2)(A) also provides, for States and territories, that the
eligible uses do not include ``directly or indirectly offset[ting] a
reduction in the net tax revenue of [the] State or territory resulting
from a change in law, regulation, or administrative interpretation.''
The ARPA provides a substantial infusion of resources to meet
pandemic response needs and rebuild a stronger, more equitable economy
as the country recovers. First, payments from the Fiscal Recovery Funds
help to ensure that State, local, and Tribal governments have the
resources needed to continue to take actions to decrease the spread of
COVID-19 and bring the pandemic under control. Payments from the Fiscal
Recovery Funds may also be used by recipients to provide support for
costs incurred in addressing public health and economic challenges
resulting from the pandemic, including resources to offer premium pay
to essential workers, in recognition of their sacrifices over the

[[Page 26788]]

last year. Recipients may also use payments from the Fiscal Recovery
Funds to replace State, local, and Tribal government revenue lost due
to COVID-19, helping to ensure that governments can continue to provide
needed services and avoid cuts or layoffs. Finally, these resources lay
the foundation for a strong, equitable economic recovery, not only by
providing immediate economic stabilization for households and
businesses, but also by addressing the systemic public health and
economic challenges that may have contributed to more severe impacts of
the pandemic among low-income communities and people of color.
Within the eligible use categories outlined in the Fiscal Recovery
Funds provisions of ARPA, State, local, and Tribal governments have
flexibility to determine how best to use payments from the Fiscal
Recovery Funds to meet the needs of their communities and populations.
The interim final rule facilitates swift and effective implementation
by establishing a framework for determining the types of programs and
services that are eligible under the ARPA along with examples of uses
that State, local, and Tribal governments may consider. These uses
build on eligible expenditures under the CRF, including some expansions
in eligible uses to respond to the public health emergency, such as
vaccination campaigns. They also reflect changes in the needs of
communities, as evidenced by, for example, nationwide data
demonstrating disproportionate impacts of the COVID-19 public health
emergency on certain populations, geographies, and economic sectors.
The interim final rule takes into consideration these disproportionate
impacts by recognizing a broad range of eligible uses to help States,
local, and Tribal governments support the families, businesses, and
communities hardest hit by the COVID-19 public health emergency.
Implementation of the Fiscal Recovery Funds also reflect the
importance of public input, transparency, and accountability. Treasury
seeks comment on all aspects of the interim final rule and, to better
facilitate public comment, has included specific questions throughout
this SUPPLEMENTARY INFORMATION. Treasury encourages State, local, and
Tribal governments in particular to provide feedback and to engage with
Treasury regarding issues that may arise regarding all aspects of this
interim final rule and Treasury's work in administering the Fiscal
Recovery Funds. In addition, the interim final rule establishes certain
regular reporting requirements, including by requiring State, local,
and Tribal governments to publish information regarding uses of Fiscal
Recovery Funds payments in their local jurisdiction. These reporting
requirements reflect the need for transparency and accountability,
while recognizing and minimizing the burden, particularly for smaller
local governments. Treasury urges State, territorial, Tribal, and local
governments to engage their constituents and communities in developing
plans to use these payments, given the scale of funding and its
potential to catalyze broader economic recovery and rebuilding.

II. Eligible Uses

A. Public Health and Economic Impacts

Sections 602(c)(1)(A) and 603(c)(1)(A) provide significant
resources for State, territorial, Tribal governments, and counties,
metropolitan cities, and nonentitlement units of local governments
(each referred to as a recipient) to meet the wide range of public
health and economic impacts of the COVID-19 public health emergency.
These provisions authorize the use of payments from the Fiscal
Recovery Funds to respond to the public health emergency with respect
to COVID-19 or its negative economic impacts. Section 602 and section
603 also describe several types of uses that would be responsive to the
impacts of the COVID-19 public health emergency, including assistance
to households, small businesses, and nonprofits and aid to impacted
industries, such as tourism, travel, and hospitality.\20\
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\20\ Sections 602(c)(1)(A), 603(c)(1)(A) of the Act.
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Accordingly, to assess whether a program or service is included in
this category of eligible uses, a recipient should consider whether and
how the use would respond to the COVID-19 public health emergency.
Assessing whether a program or service ``responds to'' the COVID-19
public health emergency requires the recipient to, first, identify a
need or negative impact of the COVID-19 public health emergency and,
second, identify how the program, service, or other intervention
addresses the identified need or impact. While the COVID-19 public
health emergency affected many aspects of American life, eligible uses
under this category must be in response to the disease itself or the
harmful consequences of the economic disruptions resulting from or
exacerbated by the COVID-19 public health emergency.
The interim final rule implements these provisions by identifying a
non-exclusive list of programs or services that may be funded as
responding to COVID-19 or the negative economic impacts of the COVID-19
public health emergency, along with considerations for evaluating other
potential uses of the Fiscal Recovery Funds not explicitly listed. The
interim final rule also provides flexibility for recipients to use
payments from the Fiscal Recovery Funds for programs or services that
are not identified on these non-exclusive lists but that fall under the
terms of section 602(c)(1)(A) or 603(c)(1)(A) by responding to the
COVID-19 public health emergency or its negative economic impacts. As
an example, in determining whether a program or service responds to the
negative economic impacts of the COVID-19 public health emergency, the
interim final rule provides that payments from the Fiscal Recovery
Funds should be designed to address an economic harm resulting from or
exacerbated by the public health emergency. Recipients should assess
the connection between the negative economic harm and the COVID-19
public health emergency, the nature and extent of that harm, and how
the use of this funding would address such harm.
As discussed, the pandemic and the necessary actions taken to
control the spread had a severe impact on households and small
businesses, including in particular low-income workers and communities
and people of color. While eligible uses under sections 602(c)(1)(A)
and 603(c)(1)(A) provide flexibility to recipients to identify the most
pressing local needs, Treasury encourages recipients to provide
assistance to those households, businesses, and non-profits in
communities most disproportionately impacted by the pandemic.
1. Responding to COVID-19
On January 21, 2020, the Centers for Disease Control and Prevention
(CDC) identified the first case of novel coronavirus in the United
States.\21\ By late March, the virus had spread to many States and the
first wave was growing rapidly, centered in the northeast.\22\ This
wave brought acute

[[Page 26789]]

strain on health care and public health systems: Hospitals and
emergency medical services struggled to manage a major influx of
patients; response personnel faced shortages of personal protective
equipment; testing for the virus was scarce; and congregate living
facilities like nursing homes and prisons saw rapid spread. State,
local, and Tribal governments mobilized to support the health care
system, issue public health orders to mitigate virus spread, and
communicate safety measures to the public. The United States has since
faced at least two additional COVID-19 waves that brought many similar
challenges: The second in the summer, centered in the south and
southwest, and a wave throughout the fall and winter, in which the
virus reached a point of uncontrolled spread across the country and
over 3,000 people died per day.\23\ By early May 2021, the United
States has experienced over 32 million confirmed COVID-19 cases and
over 575,000 deaths.\24\
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\21\ Press Release, Centers for Disease Control and Prevention,
First Travel-related Case of 2019 Novel Coronavirus Detected in
United States (Jan. 21, 2020), https://www.cdc.gov/media/releases/2020/p0121-novel-coronavirus-travel-case.html.
\22\ Anne Schuchat et al., Public Health Response to the
Initiation and Spread of Pandemic COVID-19 in the United States,
February 24-April 21, 2021, MMWR Morb Mortal Wkly Rep 2021,
69(18):551-56 (May 8, 2021), https://www.cdc.gov/mmwr/volumes/69/wr/mm6918e2.htm.
\23\ Centers for Disease Control and Prevention, COVID Data
Tracker: Trends in Number of COVID-19 Cases and Deaths in the US
Reported to CDC, by State/Territory, https://covid.cdc.gov/covid-data-tracker/#trends_dailytrendscases (last visited May 8, 2021).
\24\ Id.
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Mitigating the impact of COVID-19, including taking actions to
control its spread and support hospitals and health care workers caring
for the sick, continues to require a major public health response from
State, local and Tribal governments. New or heightened public health
needs include COVID-19 testing, major expansions in contact tracing,
support for individuals in isolation or quarantine, enforcement of
public health orders, new public communication efforts, public health
surveillance (e.g., monitoring case trends and genomic sequencing for
variants), enhancement to health care capacity through alternative care
facilities, and enhancement of public health data systems to meet new
demands or scaling needs. State, local, and Tribal governments have
also supported major efforts to prevent COVID-19 spread through safety
measures at key settings like nursing homes, schools, congregate living
settings, dense worksites, incarceration settings, and in other public
facilities. This has included implementing infection prevention
measures or making ventilation improvements in congregate settings,
health care settings, or other key locations.
Other response and adaptation costs include capital investments in
public facilities to meet pandemic operational needs, such as physical
plant improvements to public hospitals and health clinics or
adaptations to public buildings to implement COVID-19 mitigation
tactics. In recent months, State, local, and Tribal governments across
the country have mobilized to support the national vaccination
campaign, resulting in over 250 million doses administered to date.\25\
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\25\ Centers for Disease Control and Prevention, COVID Data
Tracker: COVID-19 Vaccinations in the United States, https://covid.cdc.gov/covid-data-tracker/#vaccinations (last visited May 8,
2021).
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The need for public health measures to respond to COVID-19 will
continue in the months and potentially years to come. This includes the
continuation of the vaccination campaign for the general public and, if
vaccinations are approved for children in the future, eventually for
youths. This also includes monitoring the spread of COVID-19 variants,
understanding the impact of these variants (especially on vaccination
efforts), developing approaches to respond to those variants, and
monitoring global COVID-19 trends to understand continued risks to the
United States. Finally, the long-term health impacts of COVID-19 will
continue to require a public health response, including medical
services for individuals with ``long COVID,'' and research to
understand how COVID-19 impacts future health needs and raises risks
for the millions of Americans who have been infected.
Other areas of public health have also been negatively impacted by
the COVID-19 pandemic. For example, in one survey in January 2021, over
40 percent of American adults reported symptoms of depression or
anxiety, up from 11 percent in the first half of 2019.\26\\,\ The
proportion of children's emergency department visits related to mental
health has also risen noticeably.\27\ Similarly, rates of substance
misuse and overdose deaths have spiked: Preliminary data from the CDC
show a nearly 30 percent increase in drug overdose mortality from
September 2019 to September 2020.\28\ Stay-at-home orders and other
pandemic responses may have also reduced the ability of individuals
affected by domestic violence to access services.\29\ Finally, some
preventative public health measures like childhood vaccinations have
been deferred and potentially forgone.\30\
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\26\ Panchal, supra note 4; Mark [Eacute]. Czeisler et al.,
Mental Health, Substance Abuse, and Suicidal Ideation During COVID-
19 Pandemic- United States, June 24-30 2020, Morb. Mortal. Wkly.
Rep. 69(32):1049-57 (Aug. 14, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6932a1.htm.
\27\ Leeb, supra note 4.
\28\ Centers for Disease Prevention and Control, National Center
for Health Statistics, Provisional Drug Overdose Death Counts,
https://www.cdc.gov/nchs/nvss/vsrr/drug-overdose-data.htm (last
visited May 8, 2021).
\29\ Megan L. Evans, et al., A Pandemic within a Pandemic--
Intimate Partner Violence during Covid-19, N. Engl. J. Med.
383:2302-04 (Dec. 10, 2020), available at https://www.nejm.org/doi/full/10.1056/NEJMp2024046.
\30\ Jeanne M. Santoli et al., Effects of the COVID-19 Pandemic
on Routine Pediatric Vaccine Ordering and Administration--United
States, Morb. Mortal. Wkly. Rep. 69(19):591-93 (May 8, 2020),
https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e2.htm; Marisa Langdon-
Embry et al., Notes from the Field: Rebound in Routine Childhood
Vaccine Administration Following Decline During the COVID-19
Pandemic--New York City, March 1-June 27, 2020, Morb. Mortal. Wkly.
Rep. 69(30):999-1001 (Jul. 31 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6930a3.htm.
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While the pandemic affected communities across the country, it
disproportionately impacted some demographic groups and exacerbated
health inequities along racial, ethnic, and socioeconomic lines.\31\
The CDC has found that racial and ethnic minorities are at increased
risk for infection, hospitalization, and death from COVID-19, with
Hispanic or Latino and Native American or Alaska Native patients at
highest risk.\32\
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\31\ Office of the White House, National Strategy for the COVID-
19 Response and Pandemic Preparedness (Jan. 21, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/01/National-Strategy-for-the-COVID-19-Response-and-Pandemic-Preparedness.pdf.
\32\ In a study of 13 states from October to December 2020, the
CDC found that Hispanic or Latino and Native American or Alaska
Native individuals were 1.7 times more likely to visit an emergency
room for COVID-19 than White individuals, and Black individuals were
1.4 times more likely to do so than White individuals. See Romano,
supra note 10.
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Similarly, low-income and socially vulnerable communities have seen
the most severe health impacts. For example, counties with high poverty
rates also have the highest rates of infections and deaths, with 223
deaths per 100,000 compared to the U.S. average of 175 deaths per
100,000, as of May 2021.\33\ Counties with high social vulnerability,
as measured by factors such as poverty and educational attainment, have
also fared more poorly than the national average, with 211 deaths per
100,000 as of May 2021.\34\

[[Page 26790]]

Over the last year, Native Americans have experienced more than one and
a half times the rate of COVID-19 infections, more than triple the rate
of hospitalizations, and more than double the death rate compared to
White Americans.\35\ Low-income and minority communities also exhibit
higher rates of pre-existing conditions that may contribute to an
increased risk of COVID-19 mortality.\36\
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\33\ Centers for Disease Control and Prevention, COVID Data
Tracker: Trends in COVID-19 Cases and Deaths in the United States,
by County-level Population Factors, https://covid.cdc.gov/covid-data-tracker/#pop-factors_totaldeaths (last visited May 8, 2021).
\34\ The CDC's Social Vulnerability Index includes fifteen
variables measuring social vulnerability, including unemployment,
poverty, education levels, single-parent households, disability
status, non-English speaking households, crowded housing, and
transportation access.
Centers for Disease Control and Prevention, COVID Data Tracker:
Trends in COVID-19 Cases and Deaths in the United States, by Social
Vulnerability Index, https://covid.cdc.gov/covid-data-tracker/#pop-factors_totaldeaths (last visited May 8, 2021).
\35\ Centers for Disease Control and Prevention, Risk for COVID-
19 Infection, Hospitalization, and Death By Race/Ethnicity, https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/hospitalization-death-by-race-ethnicity.html (last visited
Apr. 26, 2021).
\36\ See, e.g., Centers for Disease Control and Prevention, Risk
of Severe Illness or Death from COVID-19 (Dec. 10, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/health-equity/racial-ethnic-disparities/disparities-illness.html (last visited Apr. 26,
2021).
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In addition, individuals living in low-income communities may have
had more limited ability to socially distance or to self-isolate when
ill, resulting in faster spread of the virus, and were over-represented
among essential workers, who faced greater risk of exposure.\37\ Social
distancing measures in response to the pandemic may have also
exacerbated pre-existing public health challenges. For example, for
children living in homes with lead paint, spending substantially more
time at home raises the risk of developing elevated blood lead levels,
while screenings for elevated blood lead levels declined during the
pandemic.\38\ The combination of these underlying social and health
vulnerabilities may have contributed to more severe public health
outcomes of the pandemic within these communities, resulting in an
exacerbation of pre-existing disparities in health outcomes.\39\
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\37\ Milena Almagro et al., Racial Disparities in Frontline
Workers and Housing Crowding During COVID-19: Evidence from
Geolocation Data (Sept. 22, 2020), NYU Stern School of Business
(forthcoming), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3695249; Grace McCormack et al., Economic
Vulnerability of Households with Essential Workers, JAMA 324(4):388-
90 (2020), available at https://jamanetwork.com/journals/jama/fullarticle/2767630.
\38\ See, e.g., Joseph G. Courtney et al., Decreases in Young
Children Who Received Blood Lead Level Testing During COVID-19--34
Jurisdictions, January-May 2020, Morb. Mort. Wkly. Rep. 70(5):155-61
(Feb. 5, 2021), https://www.cdc.gov/mmwr/volumes/70/wr/mm7005a2.htm;
Emily A. Benfer & Lindsay F. Wiley, Health Justice Strategies to
Combat COVID-19: Protecting Vulnerable Communities During a
Pandemic, Health Affairs Blog (Mar. 19, 2020), https://www.healthaffairs.org/do/10.1377/hblog20200319.757883/full/.
\39\ See, e.g., Centers for Disease Control and Prevention,
supra note 34; Benfer & Wiley, supra note 38; Nathaniel M. Lewis et
al., Disparities in COVID-19 Incidence, Hospitalizations, and
Testing, by Area-Level Deprivation--Utah, March 3-July 9, 2020,
Morb. Mortal. Wkly. Rep. 69(38):1369-73 (Sept. 25, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6938a4.htm.
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Eligible Public Health Uses. The Fiscal Recovery Funds provide
resources to meet and address these emergent public health needs,
including through measures to counter the spread of COVID-19, through
the provision of care for those impacted by the virus, and through
programs or services that address disparities in public health that
have been exacerbated by the pandemic. To facilitate implementation and
use of payments from the Fiscal Recovery Funds, the interim final rule
identifies a non-exclusive list of eligible uses of funding to respond
to the COVID-19 public health emergency. Eligible uses listed under
this section build and expand upon permissible expenditures under the
CRF, while recognizing the differences between the ARPA and CARES Act,
and recognizing that the response to the COVID-19 public health
emergency has changed and will continue to change over time. To assess
whether additional uses would be eligible under this category,
recipients should identify an effect of COVID-19 on public health,
including either or both of immediate effects or effects that may
manifest over months or years, and assess how the use would respond to
or address the identified need.
The interim final rule identifies a non-exclusive list of uses that
address the effects of the COVID-19 public health emergency, including:
COVID-19 Mitigation and Prevention. A broad range of
services and programming are needed to contain COVID-19. Mitigation and
prevention efforts for COVID-19 include vaccination programs; medical
care; testing; contact tracing; support for isolation or quarantine;
supports for vulnerable populations to access medical or public health
services; public health surveillance (e.g., monitoring case trends,
genomic sequencing for variants); enforcement of public health orders;
public communication efforts; enhancement to health care capacity,
including through alternative care facilities; purchases of personal
protective equipment; support for prevention, mitigation, or other
services in congregate living facilities (e.g., nursing homes,
incarceration settings, homeless shelters, group living facilities) and
other key settings like schools; \40\ ventilation improvements in
congregate settings, health care settings, or other key locations;
enhancement of public health data systems; and other public health
responses.\41\ They also include capital investments in public
facilities to meet pandemic operational needs, such as physical plant
improvements to public hospitals and health clinics or adaptations to
public buildings to implement COVID-19 mitigation tactics. These COVID-
19 prevention and mitigation programs and services, among others, were
eligible expenditures under the CRF and are eligible uses under this
category of eligible uses for the Fiscal Recovery Funds.\42\
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\40\ This includes implementing mitigation strategies consistent
with the Centers for Disease Control and Prevention's (CDC)
Operational Strategy for K-12 Schools through Phased Prevention,
available at https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/operation-strategy.html.
\41\ Many of these expenses were also eligible in the CRF.
Generally, funding uses eligible under CRF as a response to the
direct public health impacts of COVID-19 will continue to be
eligible under the ARPA, including those not explicitly listed here
(e.g., telemedicine costs, costs to facilitate compliance with
public health orders, disinfection of public areas, facilitating
distance learning, increased solid waste disposal needs related to
PPE, paid sick and paid family and medical leave to public employees
to enable compliance with COVID-19 public health precautions), with
the following two exceptions: (1) The standard for eligibility of
public health and safety payrolls has been updated (see section II.A
of this SUPPLEMENTARY INFORMATION) and (2) expenses related to the
issuance of tax-anticipation notes are no longer an eligible funding
use (see discussion of debt service in section II.B of this
SUPPLEMENTARY INFORMATION).
\42\ Coronavirus Relief Fund for States, Tribal Governments, and
Certain Eligible Local Governments, 86 FR 4182 (Jan. 15, 2021),
available at https://home.treasury.gov/system/files/136/CRF-Guidance-Federal-Register_2021-00827.pdf.
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Medical Expenses. The COVID-19 public health emergency
continues to have devastating effects on public health; the United
States continues to average hundreds of deaths per day and the spread
of new COVID-19 variants has raised new risks and genomic surveillance
needs.\43\ Moreover, our understanding of the potentially serious and
long-term effects of the virus is growing, including the potential for
symptoms like shortness of breath to continue for weeks or months, for
multi-organ impacts from COVID-19, or for post-intensive care
syndrome.\44\ State and local governments may need to continue to
provide care and services to address these near- and longer-term
needs.\45\
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\43\ Centers for Disease Control and Prevention, supra note 24.
\44\ Centers for Disease Control and Prevention, Long-Term
Effects (Apr. 8, 2021), https://www.cdc.gov/coronavirus/2019-ncov/long-term-effects.html (last visited Apr. 26, 2021).
\45\ Pursuant to 42 CFR 433.51 and 45 CFR 75.306, Fiscal
Recovery Funds may not serve as a State or locality's contribution
of certain Federal funds.

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[[Page 26791]]

Behavioral Health Care. In addition, new or enhanced
State, local, and Tribal government services may be needed to meet
behavioral health needs exacerbated by the pandemic and respond to
other public health impacts. These services include mental health
treatment, substance misuse treatment, other behavioral health
services, hotlines or warmlines, crisis intervention, overdose
prevention, infectious disease prevention, and services or outreach to
promote access to physical or behavioral health primary care and
preventative medicine.
Public Health and Safety Staff. Treasury recognizes that
responding to the public health and negative economic impacts of the
pandemic, including administering the services described above,
requires a substantial commitment of State, local, and Tribal
government human resources. As a result, the Fiscal Recovery Funds may
be used for payroll and covered benefits expenses for public safety,
public health, health care, human services, and similar employees, to
the extent that their services are devoted to mitigating or responding
to the COVID-19 public health emergency.\46\ Accordingly, the Fiscal
Recovery Funds may be used to support the payroll and covered benefits
for the portion of the employee's time that is dedicated to responding
to the COVID-19 public health emergency. For administrative
convenience, the recipient may consider public health and safety
employees to be entirely devoted to mitigating or responding to the
COVID-19 public health emergency, and therefore fully covered, if the
employee, or his or her operating unit or division, is primarily
dedicated to responding to the COVID-19 public health emergency.
Recipients may consider other presumptions for assessing the extent to
which an employee, division, or operating unit is engaged in activities
that respond to the COVID-19 public health emergency, provided that the
recipient reassesses periodically and maintains records to support its
assessment, such as payroll records, attestations from supervisors or
staff, or regular work product or correspondence demonstrating work on
the COVID-19 response. Recipients need not routinely track staff hours.
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\46\ In general, if an employee's wages and salaries are an
eligible use of Fiscal Recovery Funds, recipients may treat the
employee's covered benefits as an eligible use of Fiscal Recovery
Funds. For purposes of the Fiscal Recovery Funds, covered benefits
include costs of all types of leave (vacation, family-related, sick,
military, bereavement, sabbatical, jury duty), employee insurance
(health, life, dental, vision), retirement (pensions, 401(k)),
unemployment benefit plans (Federal and state), workers compensation
insurance, and Federal Insurance Contributions Act (FICA) taxes
(which includes Social Security and Medicare taxes).
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Expenses to Improve the Design and Execution of Health and
Public Health Programs. State, local, and Tribal governments may use
payments from the Fiscal Recovery Funds to engage in planning and
analysis in order to improve programs addressing the COVID-19 pandemic,
including through use of targeted consumer outreach, improvements to
data or technology infrastructure, impact evaluations, and data
analysis.
Eligible Uses to Address Disparities in Public Health Outcomes. In
addition, in recognition of the disproportionate impacts of the COVID-
19 pandemic on health outcomes in low-income and Native American
communities and the importance of mitigating these effects, the interim
final rule identifies a broader range of services and programs that
will be presumed to be responding to the public health emergency when
provided in these communities. Specifically, Treasury will presume that
certain types of services, outlined below, are eligible uses when
provided in a Qualified Census Tract (QCT),\47\ to families living in
QCTs, or when these services are provided by Tribal governments.\48\
Recipients may also provide these services to other populations,
households, or geographic areas that are disproportionately impacted by
the pandemic. In identifying these disproportionately-impacted
communities, recipients should be able to support their determination
that the pandemic resulted in disproportionate public health or
economic outcomes to the specific populations, households, or
geographic areas to be served.
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\47\ Qualified Census Tracts are a common, readily-accessible,
and geographically granular method of identifying communities with a
large proportion of low-income residents. Using an existing measure
may speed implementation and decrease administrative burden, while
identifying areas of need at a highly-localized level.
While QCTs are an effective tool generally, many tribal
communities have households with a wide range of income levels due
in part to non-tribal member, high income residents living in the
community. Mixed income communities, with a significant share of
tribal members at the lowest levels of income, are often not
included as eligible QCTs yet tribal residents are experiencing
disproportionate impacts due to the pandemic. Therefore, including
all services provided by Tribal governments is a more effective
means of ensuring that disproportionately impacted Tribal members
can receive services.
\48\ U.S. Department of Housing and Urban Development (HUD),
Qualified Census Tracts and Difficult Development Areas, https://www.huduser.gov/portal/datasets/qct.html (last visited Apr. 26,
2021); U.S. Department of the Interior, Bureau of Indian Affairs,
Indian Lands of Federally Recognized Tribes of the United States
(June 2016), https://www.bia.gov/sites/bia.gov/files/assets/bia/ots/webteam/pdf/idc1-028635.pdf (last visited Apr. 26, 2021).
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Given the exacerbation of health disparities during the pandemic
and the role of pre-existing social vulnerabilities in driving these
disparate outcomes, services to address health disparities are presumed
to be responsive to the public health impacts of the pandemic.
Specifically, recipients may use payments from the Fiscal Recovery
Funds to facilitate access to resources that improve health outcomes,
including services that connect residents with health care resources
and public assistance programs and build healthier environments, such
as:
Funding community health workers to help community members
access health services and services to address the social determinants
of health; \49\
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\49\ The social determinants of health are the social and
environmental conditions that affect health outcomes, specifically
economic stability, health care access, social context,
neighborhoods and built environment, and education access. See,
e.g., U.S. Department of Health and Human Services, Office of
Disease Prevention and Health Promotion, Healthy People 2030: Social
Determinants of Health, https://health.gov/healthypeople/objectives-and-data/social-determinants-health (last visited Apr. 26, 2021).
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Funding public benefits navigators to assist community
members with navigating and applying for available Federal, State, and
local public benefits or services;
Housing services to support healthy living environments
and neighborhoods conducive to mental and physical wellness;
Remediation of lead paint or other lead hazards to reduce
risk of elevated blood lead levels among children; and
Evidence-based community violence intervention programs to
prevent violence and mitigate the increase in violence during the
pandemic.\50\
---------------------------------------------------------------------------

\50\ National Commission on COVID-19 and Criminal Justice,
Impact Report: COVID-19 and Crime (Jan. 31, 2021), https://covid19.counciloncj.org/2021/01/31/impact-report-covid-19-and-crime-3/ (showing a spike in homicide and assaults); Brad Boesrup et al.,
Alarming Trends in US domestic violence during the COVID-19
pandemic, Am. J. of Emerg. Med. 38(12): 2753-55 (Dec. 1, 2020),
available at https://www.ajemjournal.com/article/S0735-6757(20)30307-7/fulltext (showing a spike in domestic violence).
---------------------------------------------------------------------------

2. Responding to Negative Economic Impacts
Impacts on Households and Individuals. The public health emergency,
including the necessary measures taken to protect public health,
resulted in significant economic and financial hardship for many
Americans. As businesses closed, consumers stayed home, schools shifted
to remote

[[Page 26792]]

education, and travel declined precipitously, over 20 million jobs were
lost in March and April 2020.\51\ Although many have returned to work,
as of April 2021, the economy remains 8.2 million jobs below its pre-
pandemic peak,\52\ and more than 3 million workers have dropped out of
the labor market altogether relative to February 2020.\53\
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\51\ U.S. Bureau of Labor Statistics, All Employees, Total
Nonfarm (PAYEMS), retrieved from FRED, Federal Reserve Bank of St.
Louis; https://fred.stlouisfed.org/series/PAYEMS (last visited May
8, 2021).
\52\ Id.
\53\ U.S. Bureau of Labor Statistics, Civilian Labor Force Level
[CLF16OV], retrieved from FRED, Federal Reserve Bank of St. Louis,
https://fred.stlouisfed.org/series/CLF16OV (last visited May 8,
2021).
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Rates of unemployment are particularly severe among workers of
color and workers with lower levels of educational attainment; for
example, the overall unemployment rate in the United States was 6.1
percent in April 2021, but certain groups saw much higher rates: 9.7
percent for Black workers, 7.9 percent for Hispanic or Latino workers,
and 9.3 percent for workers without a high school diploma.\54\ Job
losses have also been particularly steep among low wage workers, with
these workers remaining furthest from recovery as of the end of
2020.\55\ A severe recession--and its concentrated impact among low-
income workers--has amplified food and housing insecurity, with an
estimated nearly 17 million adults living in households where there is
sometimes or often not enough food to eat and an estimated 10.7 million
adults living in households that were not current on rent.\56\ Over the
course of the pandemic, inequities also manifested along gender lines,
as schools closed to in-person activities, leaving many working
families without child care during the day.\57\ Women of color have
been hit especially hard: The labor force participation rate for Black
women has fallen by 3.2 percentage points \58\ during the pandemic as
compared to 1.0 percentage points for Black men \59\ and 2.0 percentage
points for White women.\60\
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\54\ U.S. Bureau of Labor Statistics, Labor Force Statistics
from the Current Population Survey: Employment status of the
civilian population by sex and age (May 8 2021), https://www.bls.gov/news.release/empsit.t01.htm (last visited May 8, 2021);
U.S. Bureau of Labor Statistics, Labor Force Statistics from the
Current Population Survey: Employment status of the civilian
noninstitutional population by race, Hispanic or Latino ethnicity,
sex, and age (May 8, 2021), https://www.bls.gov/web/empsit/cpseea04.htm (last visited May 8, 2021); U.S. Bureau of Labor
Statistics, Labor Force Statistics from the Current Population
Survey: Employment status of the civilian noninstitutional
population 25 years and over by educational attainment (May 8,
2021), https://www.bls.gov/web/empsit/cpseea05.htm (last visited May
8, 2021).
\55\ Elise Gould & Jori Kandra, Wages grew in 2020 because the
bottom fell out of the low-wage labor market, Economic Policy
Institute (Feb. 24, 2021), https://files.epi.org/pdf/219418.pdf. See
also, Michael Dalton et al., The K-Shaped Recovery: Examining the
Diverging Fortunes of Workers in the Recovery from the COVID-19
Pandemic using Business and Household Survey Microdata, U.S. Bureau
of Labor Statistics Working Paper Series (Feb. 2021), https://www.bls.gov/osmr/research-papers/2021/pdf/ec210020.pdf.
\56\ Center on Budget and Policy Priorities, Tracking the COVID-
19 Recession's Effects on Food, Housing, and Employment Hardships,
https://www.cbpp.org/research/poverty-and-inequality/tracking-the-covid-19-recessions-effects-on-food-housing-and (last visited May 8,
2021).
\57\ Women have carried a larger share of childcare
responsibilities than men during the COVID-19 crisis. See, e.g.,
Gema Zamarro & Mar[iacute]a J. Prados, Gender differences in
couples' division of childcare, work and mental health during COVID-
19, Rev. Econ. Household 19:11-40 (2021), available at https://link.springer.com/article/10.1007/s11150-020-09534-7; Titan Alon et
al., The Impact of COVID-19 on Gender Equality, National Bureau of
Economic Research Working Paper 26947 (April 2020), available at
https://www.nber.org/papers/w26947.
\58\ U.S. Bureau of Labor Statistics, Labor Force Participation
Rate--20 Yrs. & Over, Black or African American Women [LNS11300032],
retrieved from FRED, Federal Reserve Bank of St. Louis; https://fred.stlouisfed.org/series/LNS11300032 (last visited May 8, 2021).
\59\ U.S. Bureau of Labor Statistics, Labor Force Participation
Rate--20 Yrs. & Over, Black or African American Men [LNS11300031],
retrieved from FRED, Federal Reserve Bank of St. Louis; https://fred.stlouisfed.org/series/LNS11300031 (last visited May 8, 2021).
\60\ U.S. Bureau of Labor Statistics, Labor Force Participation
Rate--20 Yrs. & Over, White Women [LNS11300029], retrieved from
FRED, Federal Reserve Bank of St. Louis; https://fred.stlouisfed.org/series/LNS11300029 (last visited May 8, 2021).
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As the economy recovers, the effects of the pandemic-related
recession may continue to impact households, including a risk of
longer-term effects on earnings and economic potential. For example,
unemployed workers, especially those who have experienced longer
periods of unemployment, earn lower wages over the long term once
rehired.\61\ In addition to the labor market consequences for
unemployed workers, recessions can also cause longer-term economic
challenges through, among other factors, damaged consumer credit scores
\62\ and reduced familial and childhood wellbeing.\63\ These potential
long-term economic consequences underscore the continued need for
robust policy support.
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\61\ See, e.g., Michael Greenstone & Adam Looney, Unemployment
and Earnings Losses: A Look at Long-Term Impacts of the Great
Recession on American Workers, Brookings Institution (Nov. 4, 2021),
https://www.brookings.edu/blog/jobs/2011/11/04/unemployment-and-earnings-losses-a-look-at-long-term-impacts-of-the-great-recession-on-american-workers/.
\62\ Chi Chi Wu, Solving the Credit Conundrum: Helping
Consumers' Credit Records Impaired by the Foreclosure Crisis and
Great Recession (Dec. 2013), https://www.nclc.org/images/pdf/credit_reports/report-credit-conundrum-2013.pdf.
\63\ Irwin Garfinkel, Sara McLanahan, Christopher Wimer, eds.,
Children of the Great Recession, Russell Sage Foundation (Aug.
2016), available at https://www.russellsage.org/publications/children-great-recession.
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Impacts on Businesses. The pandemic has also severely impacted many
businesses, with small businesses hit especially hard. Small businesses
make up nearly half of U.S. private-sector employment \64\ and play a
key role in supporting the overall economic recovery as they are
responsible for two-thirds of net new jobs.\65\ Since the beginning of
the pandemic, however, 400,000 small businesses have closed, with many
more at risk.\66\ Sectors with a large share of small business
employment have been among those with the most drastic drops in
employment.\67\ The negative outlook for small businesses has
continued: As of April 2021, approximately 70 percent of small
businesses reported that the pandemic has had a moderate or large
negative effect on their business, and over a third expect that it will
take over 6 months for their business to return to their normal level
of operations.\68\
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\64\ Board of Governors of the Federal Reserve System, supra
note 5.
\65\ U.S. Small Business Administration, Office of Advocacy,
Small Businesses Generate 44 Percent of U.S. Economic Activity (Jan.
30, 2019), https://advocacy.sba.gov/2019/01/30/small-businesses-generate-44-percent-of-u-s-economic-activity/.
\66\ Biden, supra note 6.
\67\ Daniel Wilmoth, U.S. Small Business Administration Office
of Advocacy, The Effects of the COVID-19 Pandemic on Small
Businesses, Issue Brief No. 16 (Mar. 2021), available at https://cdn.advocacy.sba.gov/wp-content/uploads/2021/03/02112318/COVID-19-Impact-On-Small-Business.pdf.
\68\ U.S. Census Bureau, Small Business Pulse Survey, https://portal.census.gov/pulse/data/ (last visited May 8, 2021).
---------------------------------------------------------------------------

This negative outlook is likely the result of many small businesses
having faced periods of closure and having seen declining revenues as
customers stayed home.\69\ In general, small businesses can face
greater hurdles in accessing credit,\70\ and many small businesses were
already financially fragile at the outset of the pandemic.\71\ Non-
profits, which provide vital services to communities, have similarly
faced

[[Page 26793]]

economic and financial challenges due to the pandemic.\72\
---------------------------------------------------------------------------

\69\ Olivia S. Kim et al., Revenue Collapses and the Consumption
of Small Business Owners in the Early Stages of the COVID-19
Pandemic (Nov. 2020), https://www.nber.org/papers/w28151.
\70\ See e.g., Board of Governors of the Federal Reserve System,
Report to Congress on the Availability of Credit to Small Businesses
(Sept. 2017), available at https://www.federalreserve.gov/publications/2017-september-availability-of-credit-to-small-businesses.htm.
\71\ Alexander W. Bartik et al., The Impact of COVID-19 on small
business outcomes and expectations, PNAS 117(30): 17656-66 (July 28,
2020), available at https://www.pnas.org/content/117/30/17656.
\72\ Federal Reserve Bank of San Francisco, Impacts of COVID-19
on Nonprofits in the Western United States (May 2020), https://www.frbsf.org/community-development/files/impact-of-covid-nonprofits-serving-western-united-states.pdf.
---------------------------------------------------------------------------

Impacts to State, Local, and Tribal Governments. State, local, and
Tribal governments have felt substantial fiscal pressures. As noted
above, State, local, and Tribal governments have faced significant
revenue shortfalls and remain over 1 million jobs below their pre-
pandemic staffing levels.\73\ These reductions in staffing may
undermine the ability to deliver services effectively, as well as add
to the number of unemployed individuals in their jurisdictions.
---------------------------------------------------------------------------

\73\ Bureau of Labor Statistics, supra note 8; Elijah Moreno &
Heather Sobrepena, Tribal entities remain resilient as COVID-19
batters their finances, Federal Reserve Bank of Minneapolis (Nov.
10, 2021), https://www.minneapolisfed.org/article/2020/tribal-entities-remain-resilient-as-covid-19-batters-their-finances.
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Exacerbation of Pre-existing Disparities. The COVID-19 public
health emergency may have lasting negative effects on economic
outcomes, particularly in exacerbating disparities that existed prior
to the pandemic.
The negative economic impacts of the COVID-19 pandemic are
particularly pronounced in certain communities and families. Low- and
moderate-income jobs make up a substantial portion of both total
pandemic job losses,\74\ and jobs that require in-person frontline
work, which are exposed to greater risk of contracting COVID-19.\75\
Both factors compound pre-existing vulnerabilities and the likelihood
of food, housing, or other financial insecurity in low- and moderate-
income families and, given the concentration of low- and moderate-
income families within certain communities,\76\ raise a substantial
risk that the effects of the COVID-19 public health emergency will be
amplified within these communities.
---------------------------------------------------------------------------

\74\ Kim Parker et al., Economic Fallout from COVID-19 Continues
to Hit Lower-Income Americans the Hardest, Pew Research Center
(Sept. 24, 2020), https://www.pewresearch.org/social-trends/2020/09/24/economic-fallout-from-covid-19-continues-to-hit-lower-income-americans-the-hardest/; Gould, supra note 55.
\75\ See infra Section II.B of this Supplementary Information.
\76\ Elizabeth Kneebone, The Changing geography of US poverty,
Brookings Institution (Feb. 15, 2017), https://www.brookings.edu/testimonies/the-changing-geography-of-us-poverty/.
---------------------------------------------------------------------------

These compounding effect of recessions on concentrated poverty and
the long-lasting nature of this effect were observed after the 2007-
2009 recession, including a large increase in concentrated poverty with
the number of people living in extremely poor neighborhoods more than
doubling by 2010-2014 relative to 2000.\77\ Concentrated poverty has a
range of deleterious impacts, including additional burdens on families
and reduced economic potential and social cohesion.\78\ Given the
disproportionate impact of COVID-19 on low-income households discussed
above, there is a risk that the current pandemic-induced recession
could further increase concentrated poverty and cause long-term damage
to economic prospects in neighborhoods of concentrated poverty.
---------------------------------------------------------------------------

\77\ Elizabeth Kneebone & Natalie Holmes, U.S. concentrated
poverty in the wake of the Great Recession, Brookings Institution
(Mar. 31, 2016), https://www.brookings.edu/research/u-s-concentrated-poverty-in-the-wake-of-the-great-recession/.
\78\ David Erickson et al., The Enduring Challenge of
Concentrated Poverty in America: Case Studies from Communities
Across the U.S. (2008), available at https://www.frbsf.org/community-development/files/cp_fullreport.pdf.
---------------------------------------------------------------------------

The negative economic impacts of COVID-19 also include significant
impacts to children in disproportionately affected families and include
impacts to education, health, and welfare, all of which contribute to
long-term economic outcomes.\79\ Many low-income and minority students,
who were disproportionately served by remote or hybrid education during
the pandemic, lacked the resources to participate fully in remote
schooling or live in households without adults available throughout the
day to assist with online coursework.\80\ Given these trends, the
pandemic may widen educational disparities and worsen outcomes for low-
income students,\81\ an effect that would substantially impact their
long-term economic outcomes. Increased economic strain or material
hardship due to the pandemic could also have a long-term impact on
health, educational, and economic outcomes of young children.\82\
Evidence suggests that adverse conditions in early childhood, including
exposure to poverty, food insecurity, housing insecurity, or other
economic hardships, are particularly impactful.\83\
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\79\ Educational quality, as early as Kindergarten, has a long-
term impact on children's public health and economic outcomes. See,
e.g., Tyler W. Watts et al., The Chicago School Readiness Project:
Examining the long-term impacts of an early childhood intervention,
PLoS ONE 13(7) (2018), available at https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0200144; Opportunity
Insights, How Can We Amplify Education as an Engine of Mobility?
Using big data to help children get the most from school, https://opportunityinsights.org/education/ (last visited Apr. 26, 2021);
U.S. Department of Health and Human Services (HHS), Office of
Disease Prevention and Health Promotion, Early Childhood Development
and Education, https://www.healthypeople.gov/2020/topics-objectives/topic/social-determinants-health/interventions-resources/early-childhood-development-and-education (last visited Apr. 26, 2021).
\80\ See, e.g., Bacher-Hicks, supra note 14.
\81\ A Department of Education survey found that, as of February
2021, 42 percent of fourth grade students nationwide were offered
only remote education, compared to 48 percent of economically
disadvantaged students, 54 percent of Black students and 57 percent
of Hispanic students. Large districts often disproportionately serve
low-income students. See Institute of Education Sciences, Monthly
School Survey Dashboard, https://ies.ed.gov/schoolsurvey/ (last
visited Apr. 26, 2021). In summer 2020, a review found that 74
percent of the largest 100 districts chose remote learning only. See
Education Week, School Districts' Reopening Plans: A Snapshot (Jul.
15, 2020), https://www.edweek.org/leadership/school-districts-reopening-plans-a-snapshot/2020/07 (last visited May 4, 2021).
\82\ HHS, supra note 79.
\83\ Hirokazu Yoshikawa, Effects of the Global Coronavirus
Disease--2019 Pandemic on Early Childhood Development: Short- and
Long-Term Risks and Mitigating Program and Policy Actions, J. of
Pediatrics Vol. 223:188-93 (Aug. 1, 2020), available at https://www.jpeds.com/article/S0022-3476(20)30606-5/abstract.
---------------------------------------------------------------------------

The pandemic's disproportionate economic impacts are also seen in
Tribal communities across the country--for Tribal governments as well
as families and businesses on and off Tribal lands. In the early months
of the pandemic, Native American unemployment spiked to 26 percent and,
while partially recovered, remains at nearly 11 percent.\84\ Tribal
enterprises are a significant source of revenue for Tribal governments
to support the provision of government services. These enterprises,
notably concentrated in gaming, tourism, and hospitality, frequently
closed, significantly reducing both revenues to Tribal governments and
employment. As a result, Tribal governments have reduced essential
services to their citizens and communities.\85\
---------------------------------------------------------------------------

\84\ Based on calculations conducted by the Minneapolis Fed's
Center for Indian Country Development using Flood et al. (2020)'s
Current Population Survey.'' Sarah Flood, Miriam King, Renae
Rodgers, Steven Ruggles and J. Robert Warren. Integrated Public Use
Microdata Series, Current Population Survey: Version 8.0 [dataset].
Minneapolis, MN: IPUMS, 2020. https://doi.org/10.18128/D030.V8.0;
see also Donna Feir & Charles Golding, Native Employment During
COVID-19: Hard hit in April but Starting to Rebount? (Aug. 5, 2020),
https://www.minneapolisfed.org/article/2020/native-employment-during-covid-19-hit-hard-in-april-but-starting-to-rebound.
\85\ Moreno & Sobrepena, supra note 73.
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Eligible Uses. Sections 602(c)(1)(A) and 603(c)(1)(A) permit use of
payments from the Fiscal Recovery Funds to respond to the negative
economic impacts of the COVID-19 public health emergency. Eligible uses
that respond to the negative economic impacts of the public health
emergency must be designed to address an economic harm resulting from
or exacerbated by the public health emergency. In considering whether a
program or service would be

[[Page 26794]]

eligible under this category, the recipient should assess whether, and
the extent to which, there has been an economic harm, such as loss of
earnings or revenue, that resulted from the COVID-19 public health
emergency and whether, and the extent to which, the use would respond
or address this harm.\86\ A recipient should first consider whether an
economic harm exists and whether this harm was caused or made worse by
the COVID-19 public health emergency. While economic impacts may either
be immediate or delayed, assistance or aid to individuals or businesses
that did not experience a negative economic impact from the public
health emergency would not be an eligible use under this category.
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\86\ In some cases, a use may be permissible under another
eligible use category even if it falls outside the scope of section
(c)(1)(A) of the Act.
---------------------------------------------------------------------------

In addition, the eligible use must ``respond to'' the identified
negative economic impact. Responses must be related and reasonably
proportional to the extent and type of harm experienced; uses that bear
no relation or are grossly disproportionate to the type or extent of
harm experienced would not be eligible uses. Where there has been a
negative economic impact resulting from the public health emergency,
States, local, and Tribal governments have broad latitude to choose
whether and how to use the Fiscal Recovery Funds to respond to and
address the negative economic impact. Sections 602(c)(1)(A) and
603(c)(1)(A) describe several types of uses that would be eligible
under this category, including assistance to households, small
businesses, and nonprofits and aid to impacted industries such as
tourism, travel, and hospitality.
To facilitate implementation and use of payments from the Fiscal
Recovery Funds, the interim final rule identifies a non-exclusive list
of eligible uses of funding that respond to the negative economic
impacts of the public health emergency. Consistent with the discussion
above, the eligible uses listed below would respond directly to the
economic or financial harms resulting from and or exacerbated by the
public health emergency.
Assistance to Unemployed Workers. This includes assistance
to unemployed workers, including services like job training to
accelerate rehiring of unemployed workers; these services may extend to
workers unemployed due to the pandemic or the resulting recession, or
who were already unemployed when the pandemic began and remain so due
to the negative economic impacts of the pandemic.
State Unemployment Insurance Trust Funds. Consistent with
the approach taken in the CRF, recipients may make deposits into the
state account of the Unemployment Trust Fund established under section
904 of the Social Security Act (42 U.S.C. 1104) up to the level needed
to restore the pre-pandemic balances of such account as of January 27,
2020 or to pay back advances received under Title XII of the Social
Security Act (42 U.S.C. 1321) for the payment of benefits between
January 27, 2020 and May 17, 2021, given the close nexus between
Unemployment Trust Fund costs, solvency of Unemployment Trust Fund
systems, and pandemic economic impacts. Further, Unemployment Trust
Fund deposits can decrease fiscal strain on Unemployment Insurance
systems impacted by the pandemic. States facing a sharp increase in
Unemployment Insurance claims during the pandemic may have drawn down
positive Unemployment Trust Fund balances and, after exhausting the
balance, required advances to fund continuing obligations to claimants.
Because both of these impacts were driven directly by the need for
assistance to unemployed workers during the pandemic, replenishing
Unemployment Trust Funds up to the pre-pandemic level responds to the
pandemic's negative economic impacts on unemployed workers.
Assistance to Households. Assistance to households or
populations facing negative economic impacts due to COVID-19 is also an
eligible use. This includes: Food assistance; rent, mortgage, or
utility assistance; counseling and legal aid to prevent eviction or
homelessness; cash assistance (discussed below); emergency assistance
for burials, home repairs, weatherization, or other needs; internet
access or digital literacy assistance; or job training to address
negative economic or public health impacts experienced due to a
worker's occupation or level of training. As discussed above, in
considering whether a potential use is eligible under this category, a
recipient must consider whether, and the extent to which, the household
has experienced a negative economic impact from the pandemic. In
assessing whether a household or population experienced economic harm
as a result of the pandemic, a recipient may presume that a household
or population that experienced unemployment or increased food or
housing insecurity or is low- or moderate-income experienced negative
economic impacts resulting from the pandemic. For example, a cash
transfer program may focus on unemployed workers or low- and moderate-
income families, which have faced disproportionate economic harms due
to the pandemic. Cash transfers must be reasonably proportional to the
negative economic impact they are intended to address. Cash transfers
grossly in excess of the amount needed to address the negative economic
impact identified by the recipient would not be considered to be a
response to the COVID-19 public health emergency or its negative
impacts. In particular, when considering the appropriate size of
permissible cash transfers made in response to the COVID-19 public
health emergency, State, local and Tribal governments may consider and
take guidance from the per person amounts previously provided by the
Federal Government in response to the COVID-19 crisis. Cash transfers
that are grossly in excess of such amounts would be outside the scope
of eligible uses under sections 602(c)(1)(A) and 603(c)(1)(A) and could
be subject to recoupment. In addition, a recipient could provide
survivor's benefits to surviving family members of COVID-19 victims, or
cash assistance to widows, widowers, and dependents of eligible COVID-
19 victims.
Expenses to Improve Efficacy of Economic Relief Programs.
State, local, and Tribal governments may use payments from the Fiscal
Recovery Funds to improve efficacy of programs addressing negative
economic impacts, including through use of data analysis, targeted
consumer outreach, improvements to data or technology infrastructure,
and impact evaluations.
Small Businesses and Non-profits. As discussed above,
small businesses and non-profits faced significant challenges in
covering payroll, mortgages or rent, and other operating costs as a
result of the public health emergency and measures taken to contain the
spread of the virus. State, local, and Tribal governments may provide
assistance to small businesses to adopt safer operating procedures,
weather periods of closure, or mitigate financial hardship resulting
from the COVID-19 public health emergency, including:
[cir] Loans or grants to mitigate financial hardship such as
declines in revenues or impacts of periods of business closure, for
example by supporting payroll and benefits costs, costs to retain
employees, mortgage, rent, or utilities costs, and other operating
costs;
[cir] Loans, grants, or in-kind assistance to implement COVID-19
prevention or mitigation tactics, such as physical

[[Page 26795]]

plant changes to enable social distancing, enhanced cleaning efforts,
barriers or partitions, or COVID-19 vaccination, testing, or contact
tracing programs; and
[cir] Technical assistance, counseling, or other services to assist
with business planning needs.
As discussed above, these services should respond to the negative
economic impacts of COVID-19. Recipients may consider additional
criteria to target assistance to businesses in need, including small
businesses. Such criteria may include businesses facing financial
insecurity, substantial declines in gross receipts (e.g., comparable to
measures used to assess eligibility for the Paycheck Protection
Program), or other economic harm due to the pandemic, as well as
businesses with less capacity to weather financial hardship, such as
the smallest businesses, those with less access to credit, or those
serving disadvantaged communities. Recipients should consider local
economic conditions and business data when establishing such
criteria.\87\
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\87\ See Federal Reserve Bank of Cleveland, An Uphill Battle:
COVID-19's Outsized Toll on Minority-Owned Firms (Oct. 8, 2020),
https://www.clevelandfed.org/newsroom-and-events/publications/community-development-briefs/db-20201008-misera-report.aspx
(discussing the impact of COVID-19 on minority owned businesses).
---------------------------------------------------------------------------

Rehiring State, Local, and Tribal Government Staff. State,
local, and Tribal governments continue to see pandemic impacts in
overall staffing levels: State, local, and Tribal government employment
remains more than 1 million jobs lower in April 2021 than prior to the
pandemic.\88\ Employment losses decrease a state or local government's
ability to effectively administer services. Thus, the interim final
rule includes as an eligible use payroll, covered benefits, and other
costs associated with rehiring public sector staff, up to the pre-
pandemic staffing level of the government.
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\88\ U.S. Bureau of Labor Statistics, All Employees, State
Government [CES9092000001] and All Employees, Local Government
[CES9093000001], retrieved from FRED, Federal Reserve Bank of St.
Louis, https://fred.stlouisfed.org/series/CES9092000001 and https://fred.stlouisfed.org/series/CES9093000001 (last visited May 8, 2021).
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Aid to Impacted Industries. Sections 602(c)(1)(A) and
603(c)(1)(A) recognize that certain industries, such as tourism,
travel, and hospitality, were disproportionately and negatively
impacted by the COVID-19 public health emergency. Aid provided to
tourism, travel, and hospitality industries should respond to the
negative economic impacts of the pandemic on those and similarly
impacted industries. For example, aid may include assistance to
implement COVID-19 mitigation and infection prevention measures to
enable safe resumption of tourism, travel, and hospitality services,
for example, improvements to ventilation, physical barriers or
partitions, signage to facilitate social distancing, provision of masks
or personal protective equipment, or consultation with infection
prevention professionals to develop safe reopening plans.
Aid may be considered responsive to the negative economic impacts
of the pandemic if it supports businesses, attractions, business
districts, and Tribal development districts operating prior to the
pandemic and affected by required closures and other efforts to contain
the pandemic. For example, a recipient may provide aid to support safe
reopening of businesses in the tourism, travel, and hospitality
industries and to business districts that were closed during the COVID-
19 public health emergency, as well as aid for a planned expansion or
upgrade of tourism, travel, and hospitality facilities delayed due to
the pandemic.
When considering providing aid to industries other than tourism,
travel, and hospitality, recipients should consider the extent of the
economic impact as compared to tourism, travel, and hospitality, the
industries enumerated in the statute. For example, on net, the leisure
and hospitality industry has experienced an approximately 24 percent
decline in revenue and approximately 17 percent decline in employment
nationwide due to the COVID-19 public health emergency.\89\ Recipients
should also consider whether impacts were due to the COVID-19 pandemic,
as opposed to longer-term economic or industrial trends unrelated to
the pandemic.
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\89\ From February 2020 to April 2021, employment in ``Leisure
and hospitality'' has fallen by approximately 17 percent. See U.S.
Bureau of Labor Statistics, All Employees, Leisure and Hospitality,
retrieved from FRED, Federal Reserve Bank of St. Louis, https://fred.stlouisfed.org/series/USLAH (last visited May 8, 2021). From
2019Q4 to 2020Q4, gross output (e.g. revenue) in arts,
entertainment, recreation, accommodation, and food services has
fallen by approximately 24 percent. See Bureau of Economic Analysis,
News Release: Gross Domestic Product (Third Estimate), Corporate
Profits, and GDP by Industry, Fourth Quarter and Year 2020 (Mar. 25,
2021), Table 17, https://www.bea.gov/sites/default/files/2021-03/gdp4q20_3rd.pdf.
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To facilitate transparency and accountability, the interim final
rule requires that State, local, and Tribal governments publicly report
assistance provided to private-sector businesses under this eligible
use, including tourism, travel, hospitality, and other impacted
industries, and its connection to negative economic impacts of the
pandemic. Recipients also should maintain records to support their
assessment of how businesses or business districts receiving assistance
were affected by the negative economic impacts of the pandemic and how
the aid provided responds to these impacts.
As discussed above, economic disparities that existed prior to the
COVID-19 public health emergency amplified the impact of the pandemic
among low-income and minority groups. These families were more likely
to face housing, food, and financial insecurity; are over-represented
among low-wage workers; and many have seen their livelihoods
deteriorate further during the pandemic and economic contraction. In
recognition of the disproportionate negative economic impacts on
certain communities and populations, the interim final rule identifies
services and programs that will be presumed to be responding to the
negative economic impacts of the COVID-19 public health emergency when
provided in these communities.
Specifically, Treasury will presume that certain types of services,
outlined below, are eligible uses when provided in a QCT, to families
and individuals living in QCTs, or when these services are provided by
Tribal governments.\90\ Recipients may also provide these services to
other populations, households, or geographic areas disproportionately
impacted by the pandemic. In identifying these disproportionately
impacted communities, recipients should be able to support their
determination that the pandemic resulted in disproportionate public
health or economic outcomes to the specific populations, households, or
geographic areas to be served. The interim final rule identifies a non-
exclusive list of uses that address the disproportionate negative
economic effects of the COVID-19 public health emergency, including:
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\90\ HUD, supra note 48.
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[cir] Building Stronger Communities through Investments in Housing
and Neighborhoods. The economic impacts of COVID-19 have likely been
most acute in lower-income neighborhoods, including concentrated areas
of high unemployment, limited economic opportunity, and housing
insecurity.\91\

[[Page 26796]]

Services in this category alleviate the immediate economic impacts of
the COVID-19 pandemic on housing insecurity, while addressing
conditions that contributed to poor public health and economic outcomes
during the pandemic, namely concentrated areas with limited economic
opportunity and inadequate or poor-quality housing.\92\ Eligible
services include:
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\91\ Stuart M. Butler & Jonathan Grabinsky, Tackling the legacy
of persistent urban inequality and concentrated poverty, Brookings
Institution (Nov. 16, 2020), https://www.brookings.edu/blog/up-front/2020/11/16/tackling-the-legacy-of-persistent-urban-inequality-and-concentrated-poverty/.
\92\ U.S. Department of Health and Human Services (HHS), Office
of Disease Prevention and Health Promotion, Quality of Housing,
https://www.healthypeople.gov/2020/topics-objectives/topic/social-determinants-health/interventions-resources/quality-of-housing#11
(last visited Apr. 26, 2021).
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[ssquf] Services to address homelessness such as supportive
housing, and to improve access to stable, affordable housing among
unhoused individuals;
[ssquf] Affordable housing development to increase supply of
affordable and high-quality living units; and
[ssquf] Housing vouchers, residential counseling, or housing
navigation assistance to facilitate household moves to neighborhoods
with high levels of economic opportunity and mobility for low-income
residents, to help residents increase their economic opportunity and
reduce concentrated areas of low economic opportunity.\93\
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\93\ The Opportunity Atlas, https://www.opportunityatlas.org/
(last visited Apr. 26, 2021); Raj Chetty & Nathaniel Hendren, The
Impacts of Neighborhoods on Intergenerational Mobility I: Childhood
Exposure Effects, Quarterly J. of Econ. 133(3):1107-162 (2018),
available at https://opportunityinsights.org/paper/neighborhoodsi/.
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[cir] Addressing Educational Disparities. As outlined above, school
closures and the transition to remote education raised particular
challenges for lower-income students, potentially exacerbating
educational disparities, while increases in economic hardship among
families could have long-lasting impacts on children's educational and
economic prospects. Services under this prong would enhance educational
supports to help mitigate impacts of the pandemic. Eligible services
include:
[ssquf] New, expanded, or enhanced early learning services,
including pre-kindergarten, Head Start, or partnerships between pre-
kindergarten programs and local education authorities, or
administration of those services;
[ssquf] Providing assistance to high-poverty school districts to
advance equitable funding across districts and geographies;
[ssquf] Evidence-based educational services and practices to
address the academic needs of students, including tutoring, summer,
afterschool, and other extended learning and enrichment programs; and
[ssquf] Evidence-based practices to address the social, emotional,
and mental health needs of students;
[cir] Promoting Healthy Childhood Environments. Children's economic
and family circumstances have a long-term impact on their future
economic outcomes.\94\ Increases in economic hardship, material
insecurity, and parental stress and behavioral health challenges all
raise the risk of long-term harms to today's children due to the
pandemic. Eligible services to address this challenge include:
---------------------------------------------------------------------------

\94\ See supra notes 52 and 84.
---------------------------------------------------------------------------

[ssquf] New or expanded high-quality childcare to provide safe and
supportive care for children;
[ssquf] Home visiting programs to provide structured visits from
health, parent educators, and social service professionals to pregnant
women or families with young children to offer education and assistance
navigating resources for economic support, health needs, or child
development; and
[ssquf] Enhanced services for child welfare-involved families and
foster youth to provide support and training on child development,
positive parenting, coping skills, or recovery for mental health and
substance use challenges.
State, local, and Tribal governments are encouraged to use payments
from the Fiscal Recovery Funds to respond to the direct and immediate
needs of the pandemic and its negative economic impacts and, in
particular, the needs of households and businesses that were
disproportionately and negatively impacted by the public health
emergency. As highlighted above, low-income communities and workers and
people of color have faced more severe health and economic outcomes
during the pandemic, with pre-existing social vulnerabilities like low-
wage or insecure employment, concentrated neighborhoods with less
economic opportunity, and pre-existing health disparities likely
contributing to the magnified impact of the pandemic. The Fiscal
Recovery Funds provide resources to not only respond to the immediate
harms of the pandemic but also to mitigate its longer-term impact in
compounding the systemic public health and economic challenges of
disproportionately impacted populations. Treasury encourages recipients
to consider funding uses that foster a strong, inclusive, and equitable
recovery, especially uses with long-term benefits for health and
economic outcomes.
Uses Outside the Scope of this Category. Certain uses would not be
within the scope of this eligible use category, although may be
eligible under other eligible use categories. A general infrastructure
project, for example, typically would not be included unless the
project responded to a specific pandemic public health need (e.g.,
investments in facilities for the delivery of vaccines) or a specific
negative economic impact like those described above (e.g., affordable
housing in a QCT). The ARPA explicitly includes infrastructure if it is
``necessary'' and in water, sewer, or broadband. See Section II.D of
this Supplementary Information. State, local, and Tribal governments
also may use the Fiscal Recovery Funds under sections 602(c)(1)(C) or
603(c)(1)(C) to provide ``government services'' broadly to the extent
of their reduction in revenue. See Section II.C of this Supplementary
Information.
This category of eligible uses also would not include contributions
to rainy day funds, financial reserves, or similar funds. Resources
made available under this eligible use category are intended to help
meet pandemic response needs and provide relief for households and
businesses facing near- and long-term negative economic impacts.
Contributions to rainy day funds and similar financial reserves would
not address these needs or respond to the COVID-19 public health
emergency but would rather constitute savings for future spending
needs. Similarly, this eligible use category would not include payment
of interest or principal on outstanding debt instruments, including,
for example, short-term revenue or tax anticipation notes, or other
debt service costs. As discussed below, payments from the Fiscal
Recovery Funds are intended to be used prospectively and the interim
final rule precludes use of these funds to cover the costs of debt
incurred prior to March 3, 2021. Fees or issuance costs associated with
the issuance of new debt would also not be covered using payments from
the Fiscal Recovery Funds because such costs would not themselves have
been incurred to address the needs of pandemic response or its negative
economic impacts. The purpose of the Fiscal Recovery Funds is to
provide fiscal relief that will permit State, local, and Tribal
governments to continue to respond to the COVID-19 public health
emergency.
For the same reasons, this category of eligible uses would not
include satisfaction of any obligation arising under or pursuant to a
settlement agreement, judgment, consent decree, or judicially confirmed
debt restructuring

[[Page 26797]]

plan in a judicial, administrative, or regulatory proceeding, except to
the extent the judgment or settlement requires the provision of
services that would respond to the COVID-19 public health emergency.
That is, satisfaction of a settlement or judgment would not itself
respond to COVID-19 with respect to the public health emergency or its
negative economic impacts, unless the settlement requires the provision
of services or aid that did directly respond to these needs, as
described above.
In addition, as described in Section V.III of this SUPPLEMENTARY
INFORMATION, Treasury will establish reporting and record keeping
requirements for uses within this category, including enhanced
reporting requirements for certain types of uses.
Question 1: Are there other types of services or costs that
Treasury should consider as eligible uses to respond to the public
health impacts of COVID-19? Describe how these respond to the COVID-19
public health emergency.
Question 2: The interim final rule permits coverage of payroll and
benefits costs of public health and safety staff primarily dedicated to
COVID-19 response, as well as rehiring of public sector staff up to
pre-pandemic levels. For how long should these measures remain in
place? What other measures or presumptions might Treasury consider to
assess the extent to which public sector staff are engaged in COVID-19
response, and therefore reimbursable, in an easily-administrable
manner?
Question 3: The interim final rule permits rehiring of public
sector staff up to the government's pre-pandemic staffing level, which
is measured based on employment as of January 27, 2020. Does this
approach adequately measure the pre-pandemic staffing level in a manner
that is both accurate and easily administrable? Why or why not?
Question 4: The interim final rule permits deposits to Unemployment
Insurance Trust Funds, or using funds to pay back advances, up to the
pre-pandemic balance. What, if any, conditions should be considered to
ensure that funds repair economic impacts of the pandemic and
strengthen unemployment insurance systems?
Question 5: Are there other types of services or costs that
Treasury should consider as eligible uses to respond to the negative
economic impacts of COVID-19? Describe how these respond to the COVID-
19 public health emergency.
Question 6: What other measures, presumptions, or considerations
could be used to assess ``impacted industries'' affected by the COVID-
19 public health emergency?
Question 7: What are the advantages and disadvantages of using
Qualified Census Tracts and services provided by Tribal governments to
delineate where a broader range of eligible uses are presumed to be
responsive to the public health and economic impacts of COVID-19? What
other measures might Treasury consider? Are there other populations or
geographic areas that were disproportionately impacted by the pandemic
that should be explicitly included?
Question 8: Are there other services or costs that Treasury should
consider as eligible uses to respond to the disproportionate impacts of
COVID-19 on low-income populations and communities? Describe how these
respond to the COVID-19 public health emergency or its negative
economic impacts, including its exacerbation of pre-existing challenges
in these areas.
Question 9: The interim final rule includes eligible uses to
support affordable housing and stronger neighborhoods in
disproportionately-impacted communities. Discuss the advantages and
disadvantages of explicitly including other uses to support affordable
housing and stronger neighborhoods, including rehabilitation of
blighted properties or demolition of abandoned or vacant properties. In
what ways does, or does not, this potential use address public health
or economic impacts of the pandemic? What considerations, if any, could
support use of Fiscal Recovery Funds in ways that do not result in
resident displacement or loss of affordable housing units?

B. Premium Pay

Fiscal Recovery Funds payments may be used by recipients to provide
premium pay to eligible workers performing essential work during the
COVID-19 public health emergency or to provide grants to third-party
employers with eligible workers performing essential work.\95\ These
are workers who have been and continue to be relied on to maintain
continuity of operations of essential critical infrastructure sectors,
including those who are critical to protecting the health and wellbeing
of their communities.
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\95\ Sections 602(c)(1)(B), 603(c)(1)(B) of the Act.
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Since the start of the COVID-19 public health emergency in January
2020, essential workers have put their physical wellbeing at risk to
meet the daily needs of their communities and to provide care for
others. In the course of this work, many essential workers have
contracted or died of COVID-19.\96\ Several examples reflect the
severity of the health impacts for essential workers. Meat processing
plants became ``hotspots'' for transmission, with 700 new cases
reported at a single plant on a single day in May 2020.\97\ In New York
City, 120 employees of the Metropolitan Transit Authority were
estimated to have died due to COVID-19 by mid-May 2020, with nearly
4,000 testing positive for the virus.\98\ Furthermore, many essential
workers are people of color or low-wage workers.\99\ These workers, in
particular, have borne a disproportionate share of the health and
economic impacts of the pandemic. Such workers include:
---------------------------------------------------------------------------

\96\ See, e.g., Centers for Disease Control and Prevention,
COVID Data Tracker: Cases & Death among Healthcare Personnel,
https://covid.cdc.gov/covid-data-tracker/#health-care-personnel
(last visited May 4, 2021); Centers for Disease Control and
Prevention, COVID Data Tracker: Confirmed COVID-19 Cases and Deaths
among Staff and Rate per 1,000 Resident-Weeks in Nursing Homes, by
Week--United States, https://covid.cdc.gov/covid-data-tracker/#nursing-home-staff (last visited May 4, 2021).
\97\ See, e.g., The Lancet, The plight of essential workers
during the COVID-19 pandemic, Vol. 395, Issue 10237:1587 (May 23,
2020), available at https://www.thelancet.com/journals/lancet/article/PIIS0140-6736%2820%2931200-9/fulltext.
\98\ Id.
\99\ Joanna Gaitens et al., Covid-19 and essential workers: A
narrative review of health outcomes and moral injury, Int'l J. of
Envtl. Research and Pub. Health 18(4):1446 (Feb. 4, 2021), available
at https://pubmed.ncbi.nlm.nih.gov/33557075/; Tiana N. Rogers et
al., Racial Disparities in COVID-19 Mortality Among Essential
Workers in the United States, World Med. & Health policy 12(3):311-
27 (Aug. 5, 2020), available at https://onlinelibrary.wiley.com/doi/full/10.1002/wmh3.358 (finding that vulnerability to coronavirus
exposure was increased among non-Hispanic blacks, who
disproportionately occupied the top nine essential occupations).
---------------------------------------------------------------------------

Staff at nursing homes, hospitals, and home care settings;
Workers at farms, food production facilities, grocery
stores, and restaurants;
Janitors and sanitation workers;
Truck drivers, transit staff, and warehouse workers;
Public health and safety staff;
Childcare workers, educators, and other school staff; and
Social service and human services staff.
During the public health emergency, employers' policies on COVID-
19-related hazard pay have varied widely, with many essential workers
not yet compensated for the heightened risks they have faced and
continue to face.\100\

[[Page 26798]]

Many of these workers earn lower wages on average and live in
socioeconomically vulnerable communities as compared to the general
population.\101\ A recent study found that 25 percent of essential
workers were estimated to have low household income, with 13 percent in
high-risk households.\102\ The low pay of many essential workers makes
them less able to cope with the financial consequences of the pandemic
or their work-related health risks, including working hours lost due to
sickness or disruptions to childcare and other daily routines, or the
likelihood of COVID-19 spread in their households or communities. Thus,
the threats and costs involved with maintaining the ongoing operation
of vital facilities and services have been, and continue to be, borne
by those that are often the most vulnerable to the pandemic. The added
health risk to essential workers is one prominent way in which the
pandemic has amplified pre-existing socioeconomic inequities.
---------------------------------------------------------------------------

\100\ Economic Policy Institute, Only 30% of those working
outside their home are receiving hazard pay (June 16, 2020), https://www.epi.org/press/only-30-of-those-working-outside-their-home-are-receiving-hazard-pay-black-and-hispanic-workers-are-most-concerned-about-bringing-the-coronavirus-home/.
\101\ McCormack, supra note 37.
\102\ Id.
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The Fiscal Recovery Funds will help respond to the needs of
essential workers by allowing recipients to remunerate essential
workers for the elevated health risks they have faced and continue to
face during the public health emergency. To ensure that premium pay is
targeted to workers that faced or face heightened risks due to the
character of their work, the interim final rule defines essential work
as work involving regular in-person interactions or regular physical
handling of items that were also handled by others. A worker would not
be engaged in essential work and, accordingly may not receive premium
pay, for telework performed from a residence.
Sections 602(g)(2) and 603(g)(2) define eligible worker to mean
``those workers needed to maintain continuity of operations of
essential critical infrastructure sectors and additional sectors as
each Governor of a State or territory, or each Tribal government, may
designate as critical to protect the health and well-being of the
residents of their State, territory, or Tribal government.'' \103\ The
rule incorporates this definition and provides a list of industries
recognized as essential critical infrastructure sectors.\104\ These
sectors include healthcare, public health and safety, childcare,
education, sanitation, transportation, and food production and
services, among others as noted above. As provided under sections
602(g)(2) and 603(g)(2), the chief executive of each recipient has
discretion to add additional sectors to this list, so long as
additional sectors are deemed critical to protect the health and well-
being of residents.
---------------------------------------------------------------------------

\103\ Sections 602(g)(2), 603(g)(2) of the Act.
\104\ The list of critical infrastructure sectors provided in
the interim final rule is based on the list of essential workers
under The Heroes Act, H.R. 6800, 116th Cong. (2020).
---------------------------------------------------------------------------

In providing premium pay to essential workers or grants to eligible
employers, a recipient must consider whether the pay or grant would
``respond to'' to the worker or workers performing essential work.
Premium pay or grants provided under this section respond to workers
performing essential work if it addresses the heightened risk to
workers who must be physically present at a jobsite and, for many of
whom, the costs associated with illness were hardest to bear
financially. Many of the workers performing critical essential services
are low- or moderate-income workers, such as those described above. The
ARPA recognizes this by defining premium pay to mean an amount up to
$13 per hour in addition to wages or remuneration the worker otherwise
receives and in an aggregate amount not to exceed $25,000 per eligible
worker. To ensure the provision is implemented in a manner that
compensates these workers, the interim final rule provides that any
premium pay or grants provided using the Fiscal Recovery Funds should
prioritize compensation of those lower income eligible workers that
perform essential work.
As such, providing premium pay to eligible workers responds to such
workers by helping address the disparity between the critical services
and risks taken by essential workers and the relatively low
compensation they tend to receive in exchange. If premium pay would
increase a worker's total pay above 150 percent of their residing
state's average annual wage for all occupations, as defined by the
Bureau of Labor Statistics' Occupational Employment and Wage
Statistics, or their residing county's average annual wage, as defined
by the Bureau of Labor Statistics' Occupational Employment and Wage
Statistics, whichever is higher, on an annual basis, the State, local,
or Tribal government must provide Treasury and make publicly available,
whether for themselves or on behalf of a grantee, a written
justification of how the premium pay or grant is responsive to workers
performing essential worker during the public health emergency.\105\
---------------------------------------------------------------------------

\105\ County median annual wage is taken to be that of the
metropolitan or nonmetropolitan area that includes the county. See
U.S. Bureau of Labor Statistics, State Occupational Employment and
Wage Estimates, https://www.bls.gov/oes/current/oessrcst.htm (last
visited May 1, 2021); U.S. Bureau of Labor Statistics, May 2020
Metropolitan and Nonmetropolitan Area Estimates listed by county or
town, https://www.bls.gov/oes/current/county_links.htm (last visited
May 1, 2021).
---------------------------------------------------------------------------

The threshold of 150 percent for requiring additional written
justification is based on an analysis of the distribution of labor
income for a sample of 20 occupations that generally correspond to the
essential workers as defined in the interim final rule.\106\ For these
occupations, labor income for the vast majority of workers was under
150 percent of average annual labor income across all occupations.
Treasury anticipates that the threshold of 150 percent of the annual
average wage will be greater than the annual average wage of the vast
majority of eligible workers performing essential work. These enhanced
reporting requirements help to ensure grants are directed to essential
workers in critical infrastructure sectors and responsive to the
impacts of the pandemic observed among essential workers, namely the
mis-alignment between health risks and compensation. Enhanced reporting
also provides transparency to the public. Finally, using a localized
measure reflects differences in wages and cost of living across the
country, making this standard administrable and reflective of essential
worker incomes across a diverse range of geographic areas.
---------------------------------------------------------------------------

\106\ Treasury performed this analysis with data from the U.S.
Census Bureau's 2019 Annual Social and Economic Supplement. In
determining which occupations to include in this analysis, Treasury
excluded management and supervisory positions, as such positions may
not necessarily involve regular in-person interactions or physical
handling of items to the same extent as non-managerial positions.
---------------------------------------------------------------------------

Furthermore, because premium pay is intended to compensate
essential workers for heightened risk due to COVID-19, it must be
entirely additive to a worker's regular rate of wages and other
remuneration and may not be used to reduce or substitute for a worker's
normal earnings. The definition of premium pay also clarifies that
premium pay may be provided retrospectively for work performed at any
time since the start of the COVID-19 public health emergency, where
those workers have yet to be compensated adequately for work previously
performed.\107\ Treasury encourages recipients to prioritize providing
retrospective premium pay where possible, recognizing that many
essential workers have not yet received additional compensation for
work conducted over the course of many

[[Page 26799]]

months. Essential workers who have already earned premium pay for
essential work performed during the COVID-19 public health emergency
remain eligible for additional payments, and an essential worker may
receive both retrospective premium pay for prior work as well as
prospective premium pay for current or ongoing work.
---------------------------------------------------------------------------

\107\ However, such compensation must be ``in addition to''
remuneration or wages already received. That is, employers may not
reduce such workers' current pay and use Fiscal Recovery Funds to
compensate themselves for premium pay previously provided to the
worker.
---------------------------------------------------------------------------

To ensure any grants respond to the needs of essential workers and
are made in a fair and transparent manner, the rule imposes some
additional reporting requirements for grants to third-party employers,
including the public disclosure of grants provided. See Section VIII of
this SUPPLEMENTARY INFORMATION, discussing reporting requirements. In
responding to the needs of essential workers, a grant to an employer
may provide premium pay to eligible workers performing essential work,
as these terms are defined in the interim final rule and discussed
above. A grant provided to an employer may also be for essential work
performed by eligible workers pursuant to a contract. For example, if a
municipality contracts with a third party to perform sanitation work,
the third-party contractor could be eligible to receive a grant to
provide premium pay for these eligible workers.
Question 10: Are there additional sectors beyond those listed in
the interim final rule that should be considered essential critical
infrastructure sectors?
Question 11: What, if any, additional criteria should Treasury
consider to ensure that premium pay responds to essential workers?
Question 12: What consideration, if any, should be given to the
criteria on salary threshold, including measure and level, for
requiring written justification?

C. Revenue Loss

Recipients may use payments from the Fiscal Recovery Funds for the
provision of government services to the extent of the reduction in
revenue experienced due to the COVID-19 public health emergency.\108\
Pursuant to sections 602(c)(1)(C) and 603(c)(1)(C) of the Act, a
recipient's reduction in revenue is measured relative to the revenue
collected in the most recent full fiscal year prior to the emergency.
---------------------------------------------------------------------------

\108\ ARPA, supra note 16.
---------------------------------------------------------------------------

Many State, local, and Tribal governments are experiencing
significant budget shortfalls, which can have a devastating impact on
communities. State government tax revenue from major sources were down
4.3 percent in the six months ended September 2020, relative to the
same period 2019.\109\ At the local level, nearly 90 percent of cities
have reported being less able to meet the fiscal needs of their
communities and, on average, cities expect a double-digit decline in
general fund revenues in their fiscal year 2021.\110\ Similarly,
surveys of Tribal governments and Tribal enterprises found majorities
of respondents reporting substantial cost increases and revenue
decreases, with Tribal governments reporting reductions in healthcare,
housing, social services, and economic development activities as a
result of reduced revenues.\111\ These budget shortfalls are
particularly problematic in the current environment, as State, local,
and Tribal governments work to mitigate and contain the COVID-19
pandemic and help citizens weather the economic downturn.
---------------------------------------------------------------------------

\109\ Major sources include personal income tax, corporate
income tax, sales tax, and property tax. See Lucy Dadayan., States
Reported Revenue Growth in July-September Quarter, Reflecting
Revenue Shifts from the Prior Quarter, State Tax and Econ. Rev. (Q.
3, 2020), available at https://www.urban.org/sites/default/files/publication/103938/state-tax-and-economic-review-2020-q3_0.pdf.
\110\ National League of Cities, City Fiscal Conditions (2020),
available at https://www.nlc.org/wp-content/uploads/2020/08/City_Fiscal_Conditions_2020_FINAL.pdf.
\111\ Surveys conducted by the Center for Indian Country
Development at the Federal Reserve Bank of Minneapolis in March,
April, and September 2020. See Moreno & Sobrepena, supra note 73.
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Further, State, local, and Tribal government budgets affect the
broader economic recovery. During the period following the 2007-2009
recession, State and local government budget pressures led to fiscal
austerity that was a significant drag on the overall economic
recovery.\112\ Inflation-adjusted State and local government revenue
did not return to the previous peak until 2013,\113\ while State,
local, and Tribal government employment did not recover to its prior
peak for over a decade, until August 2019--just a few months before the
COVID-19 public health emergency began.\114\
---------------------------------------------------------------------------

\112\ See, e.g., Fitzpatrick, Haughwout & Setren, Fiscal Drag
from the State and Local Sector?, Liberty Street Economics Blog,
Federal Reserve Bank of New York (June 27, 2012), https://www.libertystreeteconomics.newyorkfed.org/2012/06/fiscal-drag-from-the-state-and-local-sector.html; Jiri Jonas, Great Recession and
Fiscal Squeeze at U.S. Subnational Government Level, IMF Working
Paper 12/184, (July 2012), available at https://www.imf.org/external/pubs/ft/wp/2012/wp12184.pdf; Gordon, supra note 9.
\113\ State and local government general revenue from own
sources, adjusted for inflation using the GDP price index. U.S.
Census Bureau, Annual Survey of State Government Finances and U.S.
Bureau of Economic Analysis, National Income and Product Accounts.
\114\ U.S. Bureau of Labor Statistics, All Employees, State
Government [CES9092000001] and All Employees, Local Government
[CES9093000001], retrieved from FRED, Federal Reserve Bank of St.
Louis, https://fred.stlouisfed.org/series/CES9092000001 and https://fred.stlouisfed.org/series/CES9093000001 (last visited Apr. 27,
2021).
---------------------------------------------------------------------------

Sections 602(c)(1)(C) and 603(c)(1)(C) of the Act allow recipients
facing budget shortfalls to use payments from the Fiscal Recovery Funds
to avoid cuts to government services and, thus, enable State, local,
and Tribal governments to continue to provide valuable services and
ensure that fiscal austerity measures do not hamper the broader
economic recovery. The interim final rule implements these provisions
by establishing a definition of ``general revenue'' for purposes of
calculating a loss in revenue and by providing a methodology for
calculating revenue lost due to the COVID-19 public health emergency.
General Revenue. The interim final rule adopts a definition of
``general revenue'' based largely on the components reported under
``General Revenue from Own Sources'' in the Census Bureau's Annual
Survey of State and Local Government Finances, and for purposes of this
interim final rule, helps to ensure that the components of general
revenue would be calculated in a consistent manner.\115\ By relying on
a methodology that is both familiar and comprehensive, this approach
minimizes burden to recipients and provides consistency in the
measurement of general revenue across a diverse set of recipients.
---------------------------------------------------------------------------

\115\ U.S. Census Bureau, Annual Survey of State and Local
Government Finances, https://www.census.gov/programs-surveys/gov-finances.html (last visited Apr. 30, 2021).
---------------------------------------------------------------------------

The interim final rule defines the term ``general revenue'' to
include revenues collected by a recipient and generated from its
underlying economy and would capture a range of different types of tax
revenues, as well as other types of revenue that are available to
support government services.\116\ In calculating revenue, recipients
should sum across all revenue streams covered as general revenue. This
approach minimizes the administrative burden for recipients, provides
for greater consistency across recipients, and presents a more accurate
representation of the overall impact of

[[Page 26800]]

the COVID-19 public health emergency on a recipient's revenue, rather
than relying on financial reporting prepared by each recipient, which
vary in methodology used and which generally aggregates revenue by
purpose rather than by source.\117\
---------------------------------------------------------------------------

\116\ The interim final rule would define tax revenue in a
manner consistent with the Census Bureau's definition of tax
revenue, with certain changes (i.e., inclusion of revenue from
liquor stores and certain intergovernmental transfers). Current
charges are defined as ``charges imposed for providing current
services or for the sale of products in connection with general
government activities.'' It includes revenues such as public
education institution, public hospital, and toll revenues.
Miscellaneous general revenue comprises of all other general revenue
of governments from their own sources (i.e., other than liquor
store, utility, and insurance trust revenue), including rents,
royalties, lottery proceeds, and fines.
\117\ Fund-oriented reporting, such as what is used under the
Governmental Accounting Standards Board (GASB), focuses on the types
of uses and activities funded by the revenue, as opposed to the
economic activity from which the revenue is sourced. See
Governmental Accounting Standards Series, Statement No. 54 of the
Governmental Accounting Standards Board: Fund Balance Reporting and
Governmental Fund Type Definitions, No. 287-B (Feb. 2009).
---------------------------------------------------------------------------

Consistent with the Census Bureau's definition of ``general revenue
from own sources,'' the definition of general revenue in the interim
final rule would exclude refunds and other correcting transactions,
proceeds from issuance of debt or the sale of investments, and agency
or private trust transactions. The definition of general revenue also
would exclude revenue generated by utilities and insurance trusts. In
this way, the definition of general revenue focuses on sources that are
generated from economic activity and are available to fund government
services, rather than a fund or administrative unit established to
account for and control a particular activity.\118\ For example, public
utilities typically require financial support from the State, local, or
Tribal government, rather than providing revenue to such government,
and any revenue that is generated by public utilities typically is used
to support the public utility's continued operation, rather than being
used as a source of revenue to support government services generally.
---------------------------------------------------------------------------

\118\ Supra note 116.
---------------------------------------------------------------------------

The definition of general revenue would include all revenue from
Tribal enterprises, as this revenue is generated from economic activity
and is available to fund government services. Tribes are not able to
generate revenue through taxes in the same manner as State and local
governments and, as a result, Tribal enterprises are critical sources
of revenue for Tribal governments that enable Tribal governments to
provide a range of services, including elder care, health clinics,
wastewater management, and forestry.
Finally, the term ``general revenue'' includes intergovernmental
transfers between State and local governments, but excludes
intergovernmental transfers from the Federal Government, including
Federal transfers made via a State to a local government pursuant to
the CRF or as part of the Fiscal Recovery Funds. States and local
governments often share or collect revenue on behalf of one another,
which results in intergovernmental transfers. When attributing revenue
to a unit of government, the Census Bureau's methodology considers
which unit of government imposes, collects, and retains the revenue and
assigns the revenue to the unit of government that meets at least two
of those three factors.\119\ For purposes of measuring loss in general
revenue due to the COVID-19 public health emergency and to better allow
continued provision of government services, the retention and ability
to use the revenue is a more critical factor. Accordingly, and to
better measure the funds available for the provision of government
services, the definition of general revenue would include
intergovernmental transfers from States or local governments other than
funds transferred pursuant to ARPA, CRF, or another Federal program.
This formulation recognizes the importance of State transfers for local
government revenue.\120\
---------------------------------------------------------------------------

\119\ U.S. Census Bureau, Government Finance and Employment
Classification Manual (Dec. 2000), https://www2.census.gov/govs/class/classfull.pdf.
\120\ For example, in 2018, state transfers to localities
accounted for approximately 27 percent of local revenues. U.S.
Census Bureau, Annual Survey of State and Local Government Finances,
Table 1 (2018), https://www.census.gov/data/datasets/2018/econ/local/public-use-datasets.html.
---------------------------------------------------------------------------

Calculation of Loss. In general, recipients will compute the extent
of the reduction in revenue by comparing actual revenue to a
counterfactual trend representing what could have been expected to
occur in the absence of the pandemic. This approach measures losses in
revenue relative to the most recent fiscal year prior to the COVID-19
public health emergency by using the most recent pre-pandemic fiscal
year as the starting point for estimates of revenue growth absent the
pandemic. In other words, the counterfactual trend starts with the last
full fiscal year prior to the COVID-19 public health emergency and then
assumes growth at a constant rate in the subsequent years. Because
recipients can estimate the revenue shortfall at multiple points in
time throughout the covered period as revenue is collected, this
approach accounts for variation across recipients in the timing of
pandemic impacts.\121\ Although revenue may decline for reasons
unrelated to the COVID-19 public health emergency, to minimize the
administrative burden on recipients and taking into consideration the
devastating effects of the COVID-19 public health emergency, any
diminution in actual revenues relative to the counterfactual pre-
pandemic trend would be presumed to have been due to the COVID-19
public health emergency.
---------------------------------------------------------------------------

\121\ For example, following the 2007-09 recession, local
government property tax collections did not begin to decline until
2011, suggesting that property tax collection declines can lag
downturns. See U.S. Bureau of Economic Analysis, Personal current
taxes: State and local: Property taxes [S210401A027NBEA], retrieved
from Federal Reserve Economic Data, Federal Reserve Bank of St.
Louis, https://fred.stlouisfed.org/graph/?g=r3YI (last visited Apr.
22, 2021). Estimating the reduction in revenue at points throughout
the covered period will allow for this type of lagged effect to be
taken into account during the covered period.
---------------------------------------------------------------------------

For purposes of measuring revenue growth in the counterfactual
trend, recipients may use a growth adjustment of either 4.1 percent per
year or the recipient's average annual revenue growth over the three
full fiscal years prior to the COVID-19 public health emergency,
whichever is higher. The option of 4.1 percent represents the average
annual growth across all State and local government ``General Revenue
from Own Sources'' in the most recent three years of available
data.\122\ This approach provides recipients with a standardized growth
adjustment when calculating the counterfactual revenue trend and thus
minimizes administrative burden, while not disadvantaging recipients
with revenue growth that exceeded the national average prior to the
COVID-19 public health emergency by permitting these recipients to use
their own revenue growth rate over the preceding three years.
---------------------------------------------------------------------------

\122\ Together with revenue from liquor stores from 2015 to
2018. This estimate does not include any intergovernmental
transfers. A recipient using the three-year average to calculate
their growth adjustment must be based on the definition of general
revenue, including treatment of intergovernmental transfers. 2015-
2018 represents the most recent available data. See U.S. Census
Bureau, State & Local Government Finance Historical Datasets and
Tables (2018), https://www.census.gov/programs-surveys/gov-finances/data/datasets.html.
---------------------------------------------------------------------------

Recipients should calculate the extent of the reduction in revenue
as of four points in time: December 31, 2020; December 31, 2021;
December 31, 2022; and December 31, 2023. To calculate the extent of
the reduction in revenue at each of these dates, recipients should
follow a four-step process:
Step 1: Identify revenues collected in the most recent
full fiscal year prior to the public health emergency (i.e., last full
fiscal year before January 27, 2020), called the base year revenue.
Step 2: Estimate counterfactual revenue, which is equal to
base year revenue * [(1 + growth adjustment) [supcaret] (n/12)], where
n is the number of months elapsed since the end of the base year to the
calculation date, and growth adjustment is the greater of 4.1 percent
and the recipient's average annual revenue growth in the three full
fiscal

[[Page 26801]]

years prior to the COVID-19 public health emergency.
Step 3: Identify actual revenue, which equals revenues
collected over the past twelve months as of the calculation date.
Step 4: The extent of the reduction in revenue is equal to
counterfactual revenue less actual revenue. If actual revenue exceeds
counterfactual revenue, the extent of the reduction in revenue is set
to zero for that calculation date.
For illustration, consider a hypothetical recipient with base year
revenue equal to 100. In Step 2, the hypothetical recipient finds that
4.1 percent is greater than the recipient's average annual revenue
growth in the three full fiscal years prior to the public health
emergency. Furthermore, this recipient's base year ends June 30. In
this illustration, n (months elapsed) and counterfactual revenue would
be equal to:

----------------------------------------------------------------------------------------------------------------
As of: 12/31/2020 12/31/2021 12/31/2022 12/31/2023
----------------------------------------------------------------------------------------------------------------
n (months elapsed).............................. 18 30 42 54
Counterfactual revenue:......................... 106.2 110.6 115.1 119.8
----------------------------------------------------------------------------------------------------------------

The overall methodology for calculating the reduction in revenue is
illustrated in the figure below:
[GRAPHIC] [TIFF OMITTED] TR17MY21.002

Upon receiving Fiscal Recovery Fund payments, recipients may
immediately calculate revenue loss for the period ending December 31,
2020.
Sections 602(c)(1)(C) and 603(c)(1)(C) of the Act provide
recipients with broad latitude to use the Fiscal Recovery Funds for the
provision of government services. Government services can include, but
are not limited to, maintenance or pay-go funded building \123\ of
infrastructure, including roads; modernization of cybersecurity,
including hardware, software, and protection of critical
infrastructure; health services; environmental remediation; school or
educational services; and the provision of police, fire, and other
public safety services. However, expenses associated with obligations
under instruments evidencing financial indebtedness for borrowed money
would not be considered the provision of government services, as these
financing expenses do not directly provide services or aid to citizens.
Specifically, government services would not include interest or
principal on any outstanding debt instrument, including, for example,
short-term revenue or tax anticipation notes, or fees or issuance costs
associated with the issuance of new debt. For the same reasons,
government services would not include satisfaction of any obligation
arising under or pursuant to a settlement agreement, judgment, consent
decree, or judicially confirmed debt restructuring in a judicial,
administrative, or regulatory proceeding, except if the judgment or
settlement required the provision of government services. That is,
satisfaction of a settlement or judgment itself is not a government
service, unless the settlement required the provision of government
services. In addition, replenishing financial reserves (e.g., rainy day
or other reserve funds) would not be considered provision of a
government service, since such expenses do not directly relate to the
provision of government services.
---------------------------------------------------------------------------

\123\ Pay-go infrastructure funding refers to the practice of
funding capital projects with cash-on-hand from taxes, fees, grants,
and other sources, rather than with borrowed sums.
---------------------------------------------------------------------------

Question 13: Are there sources of revenue that either should or
should not be included in the interim final rule's measure of ``general
revenue'' for recipients? If so, discuss why these sources either
should or should not be included.
Question 14: In the interim final rule, recipients are expected to
calculate the reduction in revenue on an aggregate basis. Discuss the
advantages and disadvantages of, and any potential concerns with, this
approach, including circumstances in which it could be necessary or
appropriate to calculate the reduction in revenue by source.
Question 15: Treasury is considering whether to take into account
other factors, including actions taken by the recipient as well as the
expiration of the COVID-19 public health emergency, in determining
whether to presume that revenue losses are ``due to'' the COVID-

[[Page 26802]]

19 public health emergency. Discuss the advantages and disadvantages of
this presumption, including when, if ever, during the covered period it
would be appropriate to reevaluate the presumption that all losses are
attributable to the COVID-19 public health emergency.
Question 16: Do recipients anticipate lagged revenue effects of the
public health emergency? If so, when would these lagged effects be
expected to occur, and what can Treasury to do support these recipients
through its implementation of the program?
Question 17: In the interim final rule, paying interest or
principal on government debt is not considered provision of a
government service. Discuss the advantages and disadvantages of this
approach, including circumstances in which paying interest or principal
on government debt could be considered provision of a government
service.

D. Investments in Infrastructure

To assist in meeting the critical need for investments and
improvements to existing infrastructure in water, sewer, and broadband,
the Fiscal Recovery Funds provide funds to State, local, and Tribal
governments to make necessary investments in these sectors. The interim
final rule outlines eligible uses within each category, allowing for a
broad range of necessary investments in projects that improve access to
clean drinking water, improve wastewater and stormwater infrastructure
systems, and provide access to high-quality broadband service.
Necessary investments are designed to provide an adequate minimum level
of service and are unlikely to be made using private sources of funds.
Necessary investments include projects that are required to maintain a
level of service that, at least, meets applicable health-based
standards, taking into account resilience to climate change, or
establishes or improves broadband service to unserved or underserved
populations to reach an adequate level to permit a household to work or
attend school, and that are unlikely to be met with private sources of
funds.\124\
---------------------------------------------------------------------------

\124\ Treasury notes that using funds to support or oppose
collective bargaining would not be included as part of ``necessary
investments in water, sewer, or broadband infrastructure.''
---------------------------------------------------------------------------

It is important that necessary investments in water, sewer, or
broadband infrastructure be carried out in ways that produce high-
quality infrastructure, avert disruptive and costly delays, and promote
efficiency. Treasury encourages recipients to ensure that water, sewer,
and broadband projects use strong labor standards, including project
labor agreements and community benefits agreements that offer wages at
or above the prevailing rate and include local hire provisions, not
only to promote effective and efficient delivery of high-quality
infrastructure projects but also to support the economic recovery
through strong employment opportunities for workers. Using these
practices in construction projects may help to ensure a reliable supply
of skilled labor that would minimize disruptions, such as those
associated with labor disputes or workplace injuries.
To provide public transparency on whether projects are using
practices that promote on-time and on-budget delivery, Treasury will
seek information from recipients on their workforce plans and practices
related to water, sewer, and broadband projects undertaken with Fiscal
Recovery Funds. Treasury will provide additional guidance and
instructions on the reporting requirements at a later date.
1. Water and Sewer Infrastructure
The ARPA provides funds to State, local, and Tribal governments to
make necessary investments in water and sewer infrastructure.\125\ By
permitting funds to be used for water and sewer infrastructure needs,
Congress recognized the critical role that clean drinking water and
services for the collection and treatment of wastewater and stormwater
play in protecting public health. Understanding that State, local, and
Tribal governments have a broad range of water and sewer infrastructure
needs, the interim final rule provides these governments with wide
latitude to identify investments in water and sewer infrastructure that
are of the highest priority for their own communities, which may
include projects on privately-owned infrastructure. The interim final
rule does this by aligning eligible uses of the Fiscal Recovery Funds
with the wide range of types or categories of projects that would be
eligible to receive financial assistance through the Environmental
Protection Agency's (EPA) Clean Water State Revolving Fund (CWSRF) or
Drinking Water State Revolving Fund (DWSRF).\126\
---------------------------------------------------------------------------

\125\ Sections 602(c)(1)(D), 603(c)(1)(D) of the Act.
\126\ Environmental Protection Agency, Drinking Water State
Revolving fund, https://www.epa.gov/dwsrf (last visited Apr. 30,
2021); Environmental Protection Agency, Clean Water State Revolving
Fund, https://www.epa.gov/cwsrf (last visited Apr. 30, 2021).
---------------------------------------------------------------------------

Established by the 1987 amendments \127\ to the Clean Water Act
(CWA),\128\ the CWSRF provides financial assistance for a wide range of
water infrastructure projects to improve water quality and address
water pollution in a way that enables each State to address and
prioritize the needs of their populations. The types of projects
eligible for CWSRF assistance include projects to construct, improve,
and repair wastewater treatment plants, control non-point sources of
pollution, improve resilience of infrastructure to severe weather
events, create green infrastructure, and protect waterbodies from
pollution.\129\ Each of the 51 State programs established under the
CWSRF have the flexibility to direct funding to their particular
environmental needs, and each State may also have its own statutes,
rules, and regulations that guide project eligibility.\130\
---------------------------------------------------------------------------

\127\ Water Quality Act of 1987, Public Law 100-4.
\128\ Federal Water Pollution Control Act as amended, codified
at 33 U.S.C. 1251 et seq., common name (Clean Water Act). In 2009,
the American Recovery and Reinvestment Act created the Green Project
Reserve, which increased the focus on green infrastructure, water
and energy efficient, and environmentally innovative projects.
Public Law 111-5. The CWA was amended by the Water Resources Reform
and Development Act of 2014 to further expand the CWSRF's
eligibilities. Public Law 113-121. The CWSRF's eligibilities were
further expanded in 2018 by the America's Water Infrastructure Act
of 2018, Public Law 115-270.
\129\ See Environmental Protection Agency, The Drinking Water
State Revolving Funds: Financing America's Drinking Water, EPA-816-
R-00-023 (Nov. 2000), https://nepis.epa.gov/Exe/ZyPDF.cgi/200024WB.PDF?Dockey=200024WB.PDF; See also Environmental Protection
Agency, Learn About the Clean Water State Revolving Fund, https://www.epa.gov/cwsrf/learn-about-clean-water-state-revolving-fund-cwsrf
(last visited Apr. 30, 2021).
\130\ 33 U.S.C. 1383(c). See also Environmental Protection
Agency, Overview of Clean Water State Revolving Fund Eligibilities
(May 2016), https://www.epa.gov/sites/production/files/2016-07/documents/overview_of_cwsrf_eligibilities_may_2016.pdf; Claudia
Copeland, Clean Water Act: A Summary of the Law, Congressional
Research Service (Oct. 18, 2016), https://fas.org/sgp/crs/misc/RL30030.pdf; Jonathan L Ramseur, Wastewater Infrastructure:
Overview, Funding, and Legislative Developments, Congressional
Research Service (May 22, 2018), https://fas.org/sgp/crs/misc/R44963.pdf.
---------------------------------------------------------------------------

The DWSRF was modeled on the CWSRF and created as part of the 1996
amendments to the Safe Drinking Water Act (SDWA),\131\ with the
principal objective of helping public water systems obtain financing
for improvements necessary to protect public health and comply with
drinking water regulations.\132\ Like the CWSRF,

[[Page 26803]]

the DWSRF provides States with the flexibility to meet the needs of
their populations.\133\ The primary use of DWSRF funds is to assist
communities in making water infrastructure capital improvements,
including the installation and replacement of failing treatment and
distribution systems.\134\ In administering these programs, States must
give priority to projects that ensure compliance with applicable health
and environmental safety requirements; address the most serious risks
to human health; and assist systems most in need on a per household
basis according to State affordability criteria.\135\
---------------------------------------------------------------------------

\131\ 42 U.S.C. 300j-12.
\132\ Environmental Protection Agency, Drinking Water State
Revolving Fund Eligibility Handbook, (June 2017), https://www.epa.gov/sites/production/files/2017-06/documents/dwsrf_eligibility_handbook_june_13_2017_updated_508_version.pdf;
Environmental Protection Agency, Drinking Water Infrastructure Needs
Survey and Assessment: Sixth Report to Congress (March 2018),
https://www.epa.gov/sites/production/files/2018-10/documents/corrected_sixth_drinking_water_infrastructure_needs_survey_and_assessment.pdf.
\133\ Id.
\134\ Id.
\135\ 42 U.S.C. 300j-12(b)(3)(A).
---------------------------------------------------------------------------

By aligning use of Fiscal Recovery Funds with the categories or
types of eligible projects under the existing EPA state revolving fund
programs, the interim final rule provides recipients with the
flexibility to respond to the needs of their communities while ensuring
that investments in water and sewer infrastructure made using Fiscal
Recovery Funds are necessary. As discussed above, the CWSRF and DWSRF
were designed to provide funding for projects that protect public
health and safety by ensuring compliance with wastewater and drinking
water health standards.\136\ The need to provide funding through the
state revolving funds suggests that these projects are less likely to
be addressed with private sources of funding; for example, by
remediating failing or inadequate infrastructure, much of which is
publicly owned, and by addressing non-point sources of pollution. This
approach of aligning with the EPA state revolving fund programs also
supports expedited project identification and investment so that needed
relief for the people and communities most affected by the pandemic can
deployed expeditiously and have a positive impact on their health and
wellbeing as soon as possible. Further, the interim final rule is
intended to preserve flexibility for award recipients to direct funding
to their own particular needs and priorities and would not preclude
recipients from applying their own additional project eligibility
criteria.
---------------------------------------------------------------------------

\136\ Environmental Protection Agency, Learn About the Clean
Water State Revolving Fund, https://www.epa.gov/cwsrf/learn-about-clean-water-state-revolving-fund-cwsrf (last visited Apr. 30, 2021);
42 U.S.C. 300j-12.
---------------------------------------------------------------------------

In addition, responding to the immediate needs of the COVID-19
public health emergency may have diverted both personnel and financial
resources from other State, local, and Tribal priorities, including
projects to ensure compliance with applicable water health and quality
standards and provide safe drinking and usable water.\137\ Through
sections 602(c)(1)(D) and 603(c)(1)(D), the ARPA provides resources to
address these needs. Moreover, using Fiscal Recovery Funds in
accordance with the priorities of the CWA and SWDA to ``assist systems
most in need on a per household basis according to state affordability
criteria'' would also have the benefit of providing vulnerable
populations with safe drinking water that is critical to their health
and, thus, their ability to work and learn.\138\
---------------------------------------------------------------------------

\137\ House Committee on the Budget, State and Local Governments
are in Dire Need of Federal Relief (Aug. 19, 2020), https://budget.house.gov/publications/report/state-and-local-governments-are-dire-need-federal-relief.
\138\ Environmental Protection Agency, Drinking Water State
Revolving Fund (Nov. 2019), https://www.epa.gov/sites/production/files/2019-11/documents/fact_sheet_-_dwsrf_overview_final_0.pdf;
Environmental Protection Agency, National Benefits Analysis for
Drinking Water Regulations, https://www.epa.gov/sdwa/national-benefits-analysis-drinking-water-regulations (last visited Apr. 30,
2020).
---------------------------------------------------------------------------

Recipients may use Fiscal Recovery Funds to invest in a broad range
of projects that improve drinking water infrastructure, such as
building or upgrading facilities and transmission, distribution, and
storage systems, including replacement of lead service lines. Given the
lifelong impacts of lead exposure for children, and the widespread
nature of lead service lines, Treasury encourages recipients to
consider projects to replace lead service lines.
Fiscal Recovery Funds may also be used to support the consolidation
or establishment of drinking water systems. With respect to wastewater
infrastructure, recipients may use Fiscal Recovery Funds to construct
publicly owned treatment infrastructure, manage and treat stormwater or
subsurface drainage water, facilitate water reuse, and secure publicly
owned treatment works, among other uses. Finally, consistent with the
CWSRF and DWSRF, Fiscal Recovery Funds may be used for cybersecurity
needs to protect water or sewer infrastructure, such as developing
effective cybersecurity practices and measures at drinking water
systems and publicly owned treatment works.
Many of the types of projects eligible under either the CWSRF or
DWSRF also support efforts to address climate change. For example, by
taking steps to manage potential sources of pollution and preventing
these sources from reaching sources of drinking water, projects
eligible under the DWSRF and the ARPA may reduce energy required to
treat drinking water. Similarly, projects eligible under the CWSRF
include measures to conserve and reuse water or reduce the energy
consumption of public water treatment facilities. Treasury encourages
recipients to consider green infrastructure investments and projects to
improve resilience to the effects of climate change. For example, more
frequent and extreme precipitation events combined with construction
and development trends have led to increased instances of stormwater
runoff, water pollution, and flooding. Green infrastructure projects
that support stormwater system resiliency could include rain gardens
that provide water storage and filtration benefits, and green streets,
where vegetation, soil, and engineered systems are combined to direct
and filter rainwater from impervious surfaces. In cases of a natural
disaster, recipients may also use Fiscal Recovery Funds to provide
relief, such as interconnecting water systems or rehabilitating
existing wells during an extended drought.
Question 18: What are the advantages and disadvantages of aligning
eligible uses with the eligible project type requirements of the DWSRF
and CWSRF? What other water or sewer project categories, if any, should
Treasury consider in addition to DWSRF and CWSRF eligible projects?
Should Treasury consider a broader general category of water and sewer
projects?
Question 19: What additional water and sewer infrastructure
categories, if any, should Treasury consider to address and respond to
the needs of unserved, undeserved, or rural communities? How do these
projects differ from DWSFR and CWSRF eligible projects?
Question 20: What new categories of water and sewer infrastructure,
if any, should Treasury consider to support State, local, and Tribal
governments in mitigating the negative impacts of climate change?
Discuss emerging technologies and processes that support resiliency of
water and sewer infrastructure. Discuss any challenges faced by States
and local governments when pursuing or implementing climate resilient
infrastructure projects.
Question 21: Infrastructure projects related to dams and reservoirs
are generally not eligible under the CWSRF and DWSRF categories. Should
Treasury consider expanding eligible

[[Page 26804]]

infrastructure under the interim final rule to include dam and
reservoir projects? Discuss public health, environmental, climate, or
equity benefits and costs in expanding the eligibility to include these
types of projects.
2. Broadband Infrastructure
The COVID-19 public health emergency has underscored the importance
of universally available, high-speed, reliable, and affordable
broadband coverage as millions of Americans rely on the internet to
participate in, among critical activities, remote school, healthcare,
and work. Recognizing the need for such connectivity, the ARPA provides
funds to State, territorial, local, and Tribal governments to make
necessary investments in broadband infrastructure.
The National Telecommunications and Information Administration
(NTIA) highlighted the growing necessity of broadband in daily lives
through its analysis of NTIA Internet Use Survey data, noting that
Americans turn to broadband internet access service for every facet of
daily life including work, study, and healthcare.\139\ With increased
use of technology for daily activities and the movement by many
businesses and schools to operating remotely during the pandemic,
broadband has become even more critical for people across the country
to carry out their daily lives.
---------------------------------------------------------------------------

\139\ See, e.g., https://www.ntia.gov/blog/2020/more-half-american-households-used-internet-health-related-activities-2019-ntia-data-show; https://www.ntia.gov/blog/2020/nearly-third-american-employees-worked-remotely-2019-ntia-data-show; and
generally, https://www.ntia.gov/data/digital-nation-data-explorer.
---------------------------------------------------------------------------

By at least one measure, however, tens of millions of Americans
live in areas where there is no broadband infrastructure that provides
download speeds greater than 25 Mbps and upload speeds of 3 Mbps.\140\
By contrast, as noted below, many households use upload and download
speeds of 100 Mbps to meet their daily needs. Even in areas where
broadband infrastructure exists, broadband access may be out of reach
for millions of Americans because it is unaffordable, as the United
States has some of the highest broadband prices in the Organisation for
Economic Co-operation and Development (OECD).\141\ There are
disparities in availability as well; historically, Americans living in
territories and Tribal lands as well as rural areas have
disproportionately lacked sufficient broadband infrastructure.\142\
Moreover, rapidly growing demand has, and will likely continue to,
quickly outpace infrastructure capacity, a phenomenon acknowledged by
various states around the country that have set scalability
requirements to account for this anticipated growth in demand.\143\
---------------------------------------------------------------------------

\140\ As an example, data from the Federal Communications
Commission shows that as of June 2020, 9.07 percent of the U.S.
population had no available cable or fiber broadband providers
providing greater than 25 Mbps download speeds and 3 Mbps upload
speeds. Availability was significantly less for rural versus urban
populations, with 35.57 percent of the rural population lacking such
access, compared with 2.57 percent of the urban population.
Availability was also significantly less for tribal versus non-
tribal populations, with 35.93 percent of the tribal population
lacking such access, compared with 8.74 of the non-tribal
population. Federal Communications Commission, Fixed Broadband
Deployment, https://broadbandmap.fcc.gov/#/ (last visited May 9,
2021).
\141\ How Do U.S. Internet Costs Compare To The Rest Of The
World?, BroadbandSearch Blog Post, available at https://www.broadbandsearch.net/blog/internet-costs-compared-worldwide.
\142\ See, e.g., Federal Communications Commission, Fourteenth
Broadband Deployment Report, available at https://docs.fcc.gov/public/attachments/FCC-21-18A1.pdf.
\143\ See, e.g., Illinois Department of Commerce & Economic
Opportunity, Broadband Grants, h (last visited May 9, 2021), https://www2.illinois.gov/dceo/ConnectIllinois/Pages/BroadbandGrants.aspx;
Kansas Office of Broadband Development, Broadband Acceleration
Grant, https://www.kansascommerce.gov/wp-content/uploads/2020/11/Broadband-Acceleration-Grant.pdf (last visited May 9, 2021); New
York State Association of Counties, Universal Broadband: Deploying
High Speed Internet Access in NYS (Jul. 2017), https://www.nysac.org/files/BroadbandUpdateReport2017(1).pdf.
---------------------------------------------------------------------------

The interim final rule provides that eligible investments in
broadband are those that are designed to provide services meeting
adequate speeds and are provided to unserved and underserved households
and businesses. Understanding that States, territories, localities, and
Tribal governments have a wide range of varied broadband infrastructure
needs, the interim final rule provides award recipients with
flexibility to identify the specific locations within their communities
to be served and to otherwise design the project.
Under the interim final rule, eligible projects are expected to be
designed to deliver, upon project completion, service that reliably
meets or exceeds symmetrical upload and download speeds of 100 Mbps.
There may be instances in which it would not be practicable for a
project to deliver such service speeds because of the geography,
topography, or excessive costs associated with such a project. In these
instances, the affected project would be expected to be designed to
deliver, upon project completion, service that reliably meets or
exceeds 100 Mbps download and between at least 20 Mbps and 100 Mbps
upload speeds and be scalable to a minimum of 100 Mbps symmetrical for
download and upload speeds.\144\ In setting these standards, Treasury
identified speeds necessary to ensure that broadband infrastructure is
sufficient to enable users to generally meet household needs, including
the ability to support the simultaneous use of work, education, and
health applications, and also sufficiently robust to meet increasing
household demands for bandwidth. Treasury also recognizes that
different communities and their members may have a broad range of
internet needs and that those needs may change over time.
---------------------------------------------------------------------------

\144\ This scalability threshold is consistent with scalability
requirements used in other jurisdictions. Id.
---------------------------------------------------------------------------

In considering the appropriate speed requirements for eligible
projects, Treasury considered estimates of typical households demands
during the pandemic. Using the Federal Communication Commission's (FCC)
Broadband Speed Guide, for example, a household with two telecommuters
and two to three remote learners today are estimated to need 100 Mbps
download to work simultaneously.\145\ In households with more members,
the demands may be greater, and in households with fewer members, the
demands may be less.
---------------------------------------------------------------------------

\145\ Federal Communications Commission, Broadband Speed Guide,
https://www.fcc.gov/consumers/guides/broadband-speed-guide (last
visited Apr. 30, 2021).
---------------------------------------------------------------------------

In considering the appropriate speed requirements for eligible
projects, Treasury also considered data usage patterns and how
bandwidth needs have changed over time for U.S. households and
businesses as people's use of technology in their daily lives has
evolved. In the few years preceding the pandemic, market research data
showed that average upload speeds in the United States surpassed over
10 Mbps in 2017 \146\ and continued to increase significantly, with the
average upload speed as of November, 2019 increasing to 48.41
Mbps,\147\ attributable, in part to a shift to using broadband and the
internet by individuals and businesses

[[Page 26805]]

to create and share content using video sharing, video conferencing,
and other applications.\148\
---------------------------------------------------------------------------

\146\ Letter from Lisa R. Youngers, President and CEO of Fiber
Broadband Association to FCC, WC Docket No. 19-126 (filed Jan. 3,
2020), including an Appendix with research from RVA LLC, Data Review
Of The Importance of Upload Speeds (Jan. 2020), and Ookla speed test
data, available at https://ecfsapi.fcc.gov/file/101030085118517/FCC%20RDOF%20Jan%203%20Ex%20Parte.pdf.Additional information on
historic growth in data usage is provided in Schools, Health &
Libraries Broadband Coalition, Common Sense Solutions for Closing
the Digital Divide, Apr. 29, 2021.
\147\ Id. See also United States's Mobile and Broadband internet
Speeds--Speedtest Global Index, available at https://www.speedtest.net/global-index/united-states#fixed.
\148\ Id.
---------------------------------------------------------------------------

The increasing use of data accelerated markedly during the pandemic
as households across the country became increasingly reliant on tools
and applications that require greater internet capacity, both to
download data but also to upload data. Sending information became as
important as receiving it. A video consultation with a healthcare
provider or participation by a child in a live classroom with a teacher
and fellow students requires video to be sent and received
simultaneously.\149\ As an example, some video conferencing technology
platforms indicate that download and upload speeds should be roughly
equal to support two-way, interactive video meetings.\150\ For both
work and school, client materials or completed school assignments,
which may be in the form of PDF files, videos, or graphic files, also
need to be shared with others. This is often done by uploading
materials to a collaboration site, and the upload speed available to a
user can have a significant impact on the time it takes for the content
to be shared with others. \151\ These activities require significant
capacity from home internet connections to both download and upload
data, especially when there are multiple individuals in one household
engaging in these activities simultaneously.
---------------------------------------------------------------------------

\149\ One high definition Zoom meeting or class requires
approximately 3.8 Mbps/3.0 Mbps (up/down).
\150\ See, e.g., Zoom, System Requirements for Windows, macOS,
and Linux, https://support.zoom.us/hc/en-us/articles/201362023-System-requirements-for-Windows-macOS-and-Linux#h_d278c327-e03d-4896-b19a-96a8f3c0c69c (last visited May 8, 2021).
\151\ By one estimate, to upload a one gigabit video file to
YouTube would take 15 minutes at an upload speed of 10 Mbps compared
with 1 minute, 30 seconds at an upload speed of 100 Mbps, and 30
seconds at an upload speed of 300 Mbps. Reviews.org: What is
Symmetrical internet? (March 2020).
---------------------------------------------------------------------------

This need for increased broadband capacity during the pandemic was
reflected in increased usage patterns seen over the last year. As
OpenVault noted in recent advisories, the pandemic significantly
increased the amount of data users consume. Among data users observed
by OpenVault, per-subscriber average data usage for the fourth quarter
of 2020 was 482.6 gigabytes per month, representing a 40 percent
increase over the 344 gigabytes consumed in the fourth quarter of 2019
and a 26 percent increase over the third quarter 2020 average of 383.8
gigabytes.\152\ OpenVault also noted significant increases in upstream
usage among the data users it observed, with upstream data usage
growing 63 percent--from 19 gigabytes to 31 gigabytes--between
December, 2019 and December, 2020.\153\ According to an OECD Broadband
statistic from June 2020, the largest percentage of U.S. broadband
subscribers have services providing speeds between 100 Mbps and 1
Gbps.\154\
---------------------------------------------------------------------------

\152\ OVBI: Covid-19 Drove 15 percent Increase in Broadband
Traffic in 2020, OpenVault, Quarterly Advisory, (Feb. 10, 2021),
available at https://openvault.com/ovbi-covid-19-drove-51-increase-in-broadband-traffic-in-2020; See OpenVault's data set incorporates
information on usage by subscribers across multiple continents,
including North America and Europe. Additional data and detail on
increases in the amount of data users consume and the broadband
speeds they are using is provided in OpenVault Broadband Insights
Report Q4, Quarterly Advisory (Feb. 10, 2021), available at https://openvault.com/complimentary-report-4q20/.
\153\ OVBI Special Report: 202 Upstream Growth Nearly 4X of Pre-
Pandemic Years, OpenVault, Quarterly Advisory, (April 1, 20201),
available at https://openvault.com/ovbi-special-report-2020-upstream-growth-rate-nearly-4x-of-pre-pandemic-years/; Additional
data is provided in OpenVault Broadband Insights Pandemic Impact on
Upstream Broadband Usage and Network Capacity, available at https://openvault.com/upstream-whitepaper/.
\154\ Organisation for Economic Co-operation and Development,
Fixed broadband subscriptions per 100 inhabitants, per speed tiers
(June 2020), https://www.oecd.org/sti/broadband/5.1-FixedBB-SpeedTiers-2020-06.xls www.oecd.org/sti/broadband/broadband-statistics.
---------------------------------------------------------------------------

Jurisdictions and Federal programs are increasingly responding to
the growing demands of their communities for both heightened download
and upload speeds. For example, Illinois now requires 100 Mbps
symmetrical service as the construction standard for its state
broadband grant programs. This standard is also consistent with speed
levels, particularly download speed levels, prioritized by other
Federal programs supporting broadband projects. Bids submitted as part
of the FCC in its Rural Digital Opportunity Fund (RDOF), established to
support the construction of broadband networks in rural communities
across the country, are given priority if they offer faster service,
with the service offerings of 100 Mbps download and 20 Mbps upload
being included in the ``above baseline'' performance tier set by the
FCC.\155\ The Broadband Infrastructure Program (BBIP) \156\ of the
Department of Commerce, which provides Federal funding to deploy
broadband infrastructure to eligible service areas of the country also
prioritizes projects designed to provide broadband service with a
download speed of not less than 100 Mbps and an upload speed of not
less than 20 Mbps.\157\
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\155\ Rural Digital Opportunity Fund, Report and Order, 35 FCC
Rcd 686, 690, para. 9 (2020), available at https://www.fcc.gov/document/fcc-launches-20-billion-rural-digital-opportunity-fund-0.
\156\ The BIPP was authorized by the Consolidated Appropriations
Act, 2021, Section 905, Public Law 116-260, 134 Stat. 1182 (Dec. 27,
2020).
\157\ Section 905(d)(4) of the Consolidated Appropriations Act,
2021.
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The 100 Mbps upload and download speeds will support the increased
and growing needs of households and businesses. Recognizing that, in
some instances, 100 Mbps upload speed may be impracticable due to
geographical, topographical, or financial constraints, the interim
final rule permits upload speeds of between at least 20 Mbps and 100
Mbps in such instances. To provide for investments that will
accommodate technologies requiring symmetry in download and upload
speeds, as noted above, eligible projects that are not designed to
deliver, upon project completion, service that reliably meets or
exceeds symmetrical speeds of 100 Mbps because it would be
impracticable to do so should be designed so that they can be scalable
to such speeds. Recipients are also encouraged to prioritize
investments in fiber optic infrastructure where feasible, as such
advanced technology enables the next generation of application
solutions for all communities.
Under the interim final rule, eligible projects are expected to
focus on locations that are unserved or underserved. The interim final
rule treats users as being unserved or underserved if they lack access
to a wireline connection capable of reliably delivering at least
minimum speeds of 25 Mbps download and 3 Mbps upload as households and
businesses lacking this level of access are generally not viewed as
being able to originate and receive high-quality voice, data, graphics,
and video telecommunications. This threshold is consistent with the
FCC's benchmark for an ``advanced telecommunications capability.''
\158\ This threshold is also consistent with thresholds used in other
Federal programs to identify eligible areas to be served by programs to
improve broadband services. For example, in the FCC's RDOF program,
eligible areas include those without current (or already funded) access
to terrestrial broadband service providing 25 Mbps download and 3 Mbps
upload speeds.\159\ The Department of Commerce's BBIP also considers
households to be ``unserved'' generally if they lack access to
broadband service

[[Page 26806]]

with a download speed of not less than 25 Mbps download and 3 Mbps
upload, among other conditions. In selecting an area to be served by a
project, recipients are encouraged to avoid investing in locations that
have existing agreements to build reliable wireline service with
minimum speeds of 100 Mbps download and 20 Mbps upload by December 31,
2024, in order to avoid duplication of efforts and resources.
---------------------------------------------------------------------------

\158\ Deployment Report, supra note 142.
\159\ Rural Digital Opportunity Fund, supra note 156.
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Recipients are also encouraged to consider ways to integrate
affordability options into their program design. To meet the immediate
needs of unserved and underserved households and businesses, recipients
are encouraged to focus on projects that deliver a physical broadband
connection by prioritizing projects that achieve last mile-connections.
Treasury also encourages recipients to prioritize support for broadband
networks owned, operated by, or affiliated with local governments, non-
profits, and co-operatives--providers with less pressure to turn
profits and with a commitment to serving entire communities.
Under sections 602(c)(1)(A) and 603(c)(1)(A), assistance to
households facing negative economic impacts due to COVID-19 is also an
eligible use, including internet access or digital literacy assistance.
As discussed above, in considering whether a potential use is eligible
under this category, a recipient must consider whether, and the extent
to which, the household has experienced a negative economic impact from
the pandemic.
Question 22: What are the advantages and disadvantages of setting
minimum symmetrical download and upload speeds of 100 Mbps? What other
minimum standards would be appropriate and why?
Question 23: Would setting such a minimum be impractical for
particular types of projects? If so, where and on what basis should
those projects be identified? How could such a standard be set while
also taking into account the practicality of using this standard in
particular types of projects? In addition to topography, geography, and
financial factors, what other constraints, if any, are relevant to
considering whether an investment is impracticable?
Question 24: What are the advantages and disadvantages of setting a
minimum level of service at 100 Mbps download and 20 Mbps upload in
projects where it is impracticable to set minimum symmetrical download
and upload speeds of 100 Mbps? What are the advantages and
disadvantages of setting a scalability requirement in these cases? What
other minimum standards would be appropriate and why?
Question 25: What are the advantages and disadvantages of focusing
these investments on those without access to a wireline connection that
reliably delivers 25 Mbps download by 3 Mbps upload? Would another
threshold be appropriate and why?
Question 26: What are the advantages and disadvantages of setting
any particular threshold for identifying unserved or underserved areas,
minimum speed standards or scalability minimum? Are there other
standards that should be set (e.g., latency)? If so, why and how? How
can such threshold, standards, or minimum be set in a way that balances
the public's interest in making sure that reliable broadband services
meeting the daily needs of all Americans are available throughout the
country with the providing recipients flexibility to meet the varied
needs of their communities?

III. Restrictions on Use

As discussed above, recipients have considerable flexibility to use
Fiscal Recovery Funds to address the diverse needs of their
communities. To ensure that payments from the Fiscal Recovery Funds are
used for these congressionally permitted purposes, the ARPA includes
two provisions that further define the boundaries of the statute's
eligible uses. Section 602(c)(2)(A) of the Act provides that States and
territories may not ``use the funds . . . to either directly or
indirectly offset a reduction in . . . net tax revenue . . . resulting
from a change in law, regulation, or administrative interpretation
during the covered period that reduces any tax . . . or delays the
imposition of any tax or tax increase.'' In addition, sections
602(c)(2)(B) and 603(c)(2) prohibit any recipient, including cities,
nonentitlement units of government, and counties, from using Fiscal
Recovery Funds for deposit into any pension fund. These restrictions
support the use of funds for the congressionally permitted purposes
described in Section II of this Supplementary Information by providing
a backstop against the use of funds for purposes outside of the
eligible use categories.
These provisions give force to Congress's clear intent that Fiscal
Recovery Funds be spent within the four eligible uses identified in the
statute--(1) to respond to the public health emergency and its negative
economic impacts, (2) to provide premium pay to essential workers, (3)
to provide government services to the extent of eligible governments'
revenue losses, and (4) to make necessary water, sewer, and broadband
infrastructure investments--and not otherwise. These four eligible uses
reflect Congress's judgment that the Fiscal Recovery Funds should be
expended in particular ways that support recovery from the COVID-19
public health emergency. The further restrictions reflect Congress's
judgment that tax cuts and pension deposits do not fall within these
eligible uses. The interim final rule describes how Treasury will
identify when such uses have occurred and how it will recoup funds put
toward these impermissible uses and, as discussed in Section VIII of
this SUPPLEMENTARY INFORMATION, establishes a reporting framework for
monitoring the use of Fiscal Recovery Funds for eligible uses.

A. Deposit Into Pension Funds

The statute provides that recipients may not use Fiscal Recovery
Funds for ``deposit into any pension fund.'' For the reasons discussed
below, Treasury interprets ``deposit'' in this context to refer to an
extraordinary payment into a pension fund for the purpose of reducing
an accrued, unfunded liability. More specifically, the interim final
rule does not permit this assistance to be used to make a payment into
a pension fund if both:
1. The payment reduces a liability incurred prior to the start of
the COVID-19 public health emergency, and
2. the payment occurs outside the recipient's regular timing for
making such payments.
Under this interpretation, a ``deposit'' is distinct from a
``payroll contribution,'' which occurs when employers make payments
into pension funds on regular intervals, with contribution amounts
based on a pre-determined percentage of employees' wages and salaries.
As discussed above, eligible uses for premium pay and responding to
the negative economic impacts of the COVID-19 public health emergency
include hiring and compensating public sector employees. Interpreting
the scope of ``deposit'' to exclude contributions that are part of
payroll contributions is more consistent with these eligible uses and
would reduce administrative burden for recipients. Accordingly, if an
employee's wages and salaries are an eligible use of Fiscal Recovery
Funds, recipients may treat the employee's covered benefits as an
eligible use of Fiscal Recovery Funds. For purposes of the Fiscal
Recovery Funds, covered benefits include costs of all types of leave
(vacation, family-related, sick, military, bereavement, sabbatical,
jury duty), employee insurance (health, life, dental, vision),
retirement (pensions, 401(k)), unemployment benefit plans

[[Page 26807]]

(Federal and State), workers' compensation insurance, and Federal
Insurance Contributions Act taxes (which includes Social Security and
Medicare taxes).
Treasury anticipates that this approach to employees' covered
benefits will be comprehensive and, for employees whose wage and salary
costs are eligible expenses, will allow all covered benefits listed in
the previous paragraph to be eligible under the Fiscal Recovery Funds.
Treasury expects that this will minimize the administrative burden on
recipients by treating all the specified covered benefit types as
eligible expenses, for employees whose wage and salary costs are
eligible expenses.
Question 27: Beyond a ``deposit'' and a ``payroll contribution,''
are there other types of payments into a pension fund that Treasury
should consider?

B. Offset a Reduction in Net Tax Revenue

For States and territories (recipient governments \160\), section
602(c)(2)(A)--the offset provision--prohibits the use of Fiscal
Recovery Funds to directly or indirectly offset a reduction in net tax
revenue resulting from a change in law, regulation, or administrative
interpretation \161\ during the covered period. If a State or territory
uses Fiscal Recovery Funds to offset a reduction in net tax revenue,
the ARPA provides that the State or territory must repay to the
Treasury an amount equal to the lesser of (i) the amount of the
applicable reduction attributable to the impermissible offset and (ii)
the amount received by the State or territory under the ARPA. See
Section IV of this SUPPLEMENTARY INFORMATION. As discussed below
Section IV of this SUPPLEMENTARY INFORMATION, a State or territory that
chooses to use Fiscal Recovery Funds to offset a reduction in net tax
revenue does not forfeit its entire allocation of Fiscal Recovery Funds
(unless it misused the full allocation to offset a reduction in net tax
revenue) or any non-ARPA funding received.
---------------------------------------------------------------------------

\160\ In this sub-section, ``recipient governments'' refers only
to States and territories. In other sections, ``recipient
governments'' refers more broadly to eligible governments receiving
funding from the Fiscal Recovery Funds.
\161\ For brevity, referred to as ``changes in law, regulation,
or interpretation'' for the remainder of this preamble.
---------------------------------------------------------------------------

The interim final rule implements these conditions by establishing
a framework for States and territories to determine the cost of changes
in law, regulation, or interpretation that reduce tax revenue and to
identify and value the sources of funds that will offset--i.e., cover
the cost of--any reduction in net tax revenue resulting from such
changes. A recipient government would only be considered to have used
Fiscal Recovery Funds to offset a reduction in net tax revenue
resulting from changes in law, regulation, or interpretation if, and to
the extent that, the recipient government could not identify sufficient
funds from sources other than the Fiscal Recovery Funds to offset the
reduction in net tax revenue. If sufficient funds from other sources
cannot be identified to cover the full cost of the reduction in net tax
revenue resulting from changes in law, regulation, or interpretation,
the remaining amount not covered by these sources will be considered to
have been offset by Fiscal Recovery Funds, in contravention of the
offset provision. The interim final rule recognizes three sources of
funds that may offset a reduction in net tax revenue other than Fiscal
Recovery Funds--organic growth, increases in revenue (e.g., an increase
in a tax rate), and certain cuts in spending.
In order to reduce burden, the interim final rule's approach also
incorporates the types of information and modeling already used by
States and territories in their own fiscal and budgeting processes. By
incorporating existing budgeting processes and capabilities, States and
territories will be able to assess and evaluate the relationship of tax
and budget decisions to uses of the Fiscal Recovery Funds based on
information they likely have or can obtain. This approach ensures that
recipient governments have the information they need to understand the
implications of their decisions regarding the use of the Fiscal
Recovery Funds--and, in particular, whether they are using the funds to
directly or indirectly offset a reduction in net tax revenue, making
them potentially subject to recoupment.
Reporting on both the eligible uses and on a State's or territory's
covered tax changes that would reduce tax revenue will enable
identification of, and recoupment for, use of Fiscal Recovery Funds to
directly offset reductions in tax revenue resulting from tax relief.
Moreover, this approach recognizes that, because money is fungible,
even if Fiscal Recovery Funds are not explicitly or directly used to
cover the costs of changes that reduce net tax revenue, those funds may
be used in a manner inconsistent with the statute by indirectly being
used to substitute for the State's or territory's funds that would
otherwise have been needed to cover the costs of the reduction. By
focusing on the cost of changes that reduce net tax revenue--and how a
recipient government is offsetting those reductions in constructing its
budget over the covered period--the framework prevents efforts to use
Fiscal Recovery Funds to indirectly offset reductions in net tax
revenue for which the recipient government has not identified other
offsetting sources of funding.
As discussed in greater detail below in this preamble, the
framework set forth in the interim final rule establishes a step-by-
step process for determining whether, and the extent to which, Fiscal
Recovery Funds have been used to offset a reduction in net tax revenue.
Based on information reported annually by the recipient government:
First, each year, each recipient government will identify
and value the changes in law, regulation, or interpretation that would
result in a reduction in net tax revenue, as it would in the ordinary
course of its budgeting process. The sum of these values in the year
for which the government is reporting is the amount it needs to ``pay
for'' with sources other than Fiscal Recovery Funds (total value of
revenue reducing changes).
Second, the interim final rule recognizes that it may be
difficult to predict how a change would affect net tax revenue in
future years and, accordingly, provides that if the total value of the
changes in the year for which the recipient government is reporting is
below a de minimis level, as discussed below, the recipient government
need not identify any sources of funding to pay for revenue reducing
changes and will not be subject to recoupment.
Third, a recipient government will consider the amount of
actual tax revenue recorded in the year for which they are reporting.
If the recipient government's actual tax revenue is greater than the
amount of tax revenue received by the recipient for the fiscal year
ending 2019, adjusted annually for inflation, the recipient government
will not be considered to have violated the offset provision because
there will not have been a reduction in net tax revenue.
Fourth, if the recipient government's actual tax revenue
is less than the amount of tax revenue received by the recipient
government for the fiscal year ending 2019, adjusted annually for
inflation, in the reporting year the recipient government will identify
any sources of funds that have been used to permissibly offset the
total value of covered tax changes other than Fiscal Recovery Funds.
These are:
[cir] State or territory tax changes that would increase any source
of general

[[Page 26808]]

fund revenue, such as a change that would increase a tax rate; and
[cir] Spending cuts in areas not being replaced by Fiscal Recovery
Funds.
The recipient government will calculate the value of revenue
reduction remaining after applying these sources of offsetting funding
to the total value of revenue reducing changes--that, is, how much of
the tax change has not been paid for. The recipient government will
then compare that value to the difference between the baseline and
actual tax revenue. A recipient government will not be required to
repay to the Treasury an amount that is greater than the recipient
government's actual tax revenue shortfall relative to the baseline
(i.e., fiscal year 2019 tax revenue adjusted for inflation). This
``revenue reduction cap,'' together with Step 3, ensures that recipient
governments can use organic revenue growth to offset the cost of
revenue reductions.
Finally, if there are any amounts that could be subject to
recoupment, Treasury will provide notice to the recipient government of
such amounts. This process is discussed in greater detail in Section IV
of this SUPPLEMENTARY INFORMATION.
Together, these steps allow Treasury to identify the amount of
reduction in net tax revenue that both is attributable to covered
changes and has been directly or indirectly offset with Fiscal Recovery
Funds. This process ensures Fiscal Recovery Funds are used in a manner
consistent with the statute's defined eligible uses and the offset
provision's limitation on these eligible uses, while avoiding undue
interference with State and territory decisions regarding tax and
spending policies.
The interim final rule also implements a process for recouping
Fiscal Recovery Funds that were used to offset reductions in net tax
revenue, including the calculation of any amounts that may be subject
to recoupment, a process for a recipient government to respond to a
notice of recoupment, and clarification regarding amounts excluded from
recoupment. See Section IV of this SUPPLEMENTARY INFORMATION.
The interim final rule includes several definitions that are
applicable to the implementation of the offset provision.
Covered change. The offset provision is triggered by a reduction in
net tax revenue resulting from ``a change in law, regulation, or
administrative interpretation.'' A covered change includes any final
legislative or regulatory action, a new or changed administrative
interpretation, and the phase-in or taking effect of any statute or
rule where the phase-in or taking effect was not prescribed prior to
the start of the covered period. Changed administrative interpretations
would not include corrections to replace prior inaccurate
interpretations; such corrections would instead be treated as changes
implementing legislation enacted or regulations issued prior to the
covered period; the operative change in those circumstances is the
underlying legislation or regulation that occurred prior to the covered
period. Moreover, only the changes within the control of the State or
territory are considered covered changes. Covered changes do not
include a change in rate that is triggered automatically and based on
statutory or regulatory criteria in effect prior to the covered period.
For example, a state law that sets its earned income tax credit (EITC)
at a fixed percentage of the Federal EITC will see its EITC payments
automatically increase--and thus its tax revenue reduced--because of
the Federal Government's expansion of the EITC in the ARPA.\162\ This
would not be considered a covered change. In addition, the offset
provision applies only to actions for which the change in policy occurs
during the covered period; it excludes regulations or other actions
that implement a change or law substantively enacted prior to March 3,
2021. Finally, Treasury has determined and previously announced that
income tax changes--even those made during the covered period--that
simply conform with recent changes in Federal law (including those to
conform to recent changes in Federal taxation of unemployment insurance
benefits and taxation of loan forgiveness under the Paycheck Protection
Program) are permissible under the offset provision.
---------------------------------------------------------------------------

\162\ See, e.g., Tax Policy Center, How do state earned income
tax credits work?, https://www.taxpolicycenter.org/briefing-book/how-do-state-earned-income-tax-credits-work/ (last visited May 9,
2021).
---------------------------------------------------------------------------

Baseline. For purposes of measuring a reduction in net tax revenue,
the interim final rule measures actual changes in tax revenue relative
to a revenue baseline (baseline). The baseline will be calculated as
fiscal year 2019 (FY 2019) tax revenue indexed for inflation in each
year of the covered period, with inflation calculated using the Bureau
of Economic Analysis's Implicit Price Deflator.\163\
---------------------------------------------------------------------------

\163\ U.S. Department of Commerce, Bureau of Economic Analysis,
GDP Price Deflator, https://www.bea.gov/data/prices-inflation/gdp-price-deflator (last visited May 9, 2021).
---------------------------------------------------------------------------

FY 2019 was chosen as the starting year for the baseline because it
is the last full fiscal year prior to the COVID-19 public health
emergency.\164\ This baseline year is consistent with the approach
directed by the ARPA in sections 602(c)(1)(C) and 603(c)(1)(C), which
identify the ``most recent full fiscal year of the [State, territory,
or Tribal government] prior to the emergency'' as the comparator for
measuring revenue loss. U.S. gross domestic product is projected to
rebound to pre-pandemic levels in 2021,\165\ suggesting that an FY 2019
pre-pandemic baseline is a reasonable comparator for future revenue
levels. The FY 2019 baseline revenue will be adjusted annually for
inflation to allow for direct comparison of actual tax revenue in each
year (reported in nominal terms) to baseline revenue in common units of
measurement; without inflation adjustment, each dollar of reported
actual tax revenue would be worth less than each dollar of baseline
revenue expressed in 2019 terms.
---------------------------------------------------------------------------

\164\ Using Fiscal Year 2019 is consistent with section 602 as
Congress provided for using that baseline for determining the impact
of revenue loss affecting the provision of government services. See
section 602(c)(1)(C).
\165\ Congressional Budget Office, An Overview of the Economic
Outlook: 2021 to 2031 (February 1, 2021), available at https://www.cbo.gov/publication/56965.
---------------------------------------------------------------------------

Reporting year. The interim final rule defines ``reporting year''
as a single year within the covered period, aligned to the current
fiscal year of the recipient government during the covered period, for
which a recipient government reports the value of covered changes and
any sources of offsetting revenue increases (``in-year'' value),
regardless of when those changes were enacted. For the fiscal years
ending in 2021 or 2025 (partial years), the term ``reporting year''
refers to the portion of the year falling within the covered period.
For example, the reporting year for a fiscal year beginning July 2020
and ending June 2021 would be from March 3, 2021 to July 2021.
Tax revenue. The interim final rule's definition of ``tax revenue''
is based on the Census Bureau's definition of taxes, used for its
Annual Survey of State Government Finances.\166\ It provides a
consistent, well-established definition with which States and
territories will be familiar and is consistent with the approach taken
in Section II.C of this SUPPLEMENTARY INFORMATION describing the
implementation of sections 602(c)(1)(C) and 603(c)(1)(C) of the Act,
regarding revenue loss. Consistent with the approach described in
Section II.C of this SUPPLEMENTARY INFORMATION, tax

[[Page 26809]]

revenue does not include revenue taxed and collected by a different
unit of government (e.g., revenue from taxes levied by a local
government and transferred to a recipient government).
---------------------------------------------------------------------------

\166\ U.S. Census Bureau, Annual Survey of State and Local
Government Finances Glossary, https://www.census.gov/programs-surveys/state/about/glossary.html (last visited Apr. 30, 2021).
---------------------------------------------------------------------------

Framework. The interim final rule provides a step-by-step
framework, to be used in each reporting year, to calculate whether the
offset provision applies to a State's or territory's use of Fiscal
Recovery Funds:
(1) Covered changes that reduce tax revenue. For each reporting
year, a recipient government will identify and value covered changes
that the recipient government predicts will have the effect of reducing
tax revenue in a given reporting year, similar to the way it would in
the ordinary course of its budgeting process. The value of these
covered changes may be reported based on estimated values produced by a
budget model, incorporating reasonable assumptions, that aligns with
the recipient government's existing approach for measuring the effects
of fiscal policies, and that measures relative to a current law
baseline. The covered changes may also be reported based on actual
values using a statistical methodology to isolate the change in year-
over-year revenue attributable to the covered change(s), relative to
the current law baseline prior to the change(s). Further, estimation
approaches should not use dynamic methodologies that incorporate the
projected effects of macroeconomic growth because macroeconomic growth
is accounted for separately in the framework. Relative to these dynamic
scoring methodologies, scoring methodologies that do not incorporate
projected effects of macroeconomic growth rely on fewer assumptions and
thus provide greater consistency among States and territories. Dynamic
scoring that incorporates macroeconomic growth may also increase the
likelihood of underestimation of the cost of a reduction in tax
revenue.
In general and where possible, reporting should be produced by the
agency of the recipient government responsible for estimating the costs
and effects of fiscal policy changes. This approach offers recipient
governments the flexibility to determine their reporting methodology
based on their existing budget scoring practices and capabilities. In
addition, the approach of using the projected value of changes in law
that enact fiscal policies to estimate the net effect of such policies
is consistent with the way many States and territories already consider
tax changes.\167\
---------------------------------------------------------------------------

\167\ See, e.g., Megan Randall & Kim Rueben, Tax Policy Center,
Sustainable Budgeting in the States: Evidence on State Budget
Institutions and Practices (Nov. 2017), available at https://www.taxpolicycenter.org/sites/default/files/publication/149186/sustainable-budgeting-in-the-states_1.pdf.
---------------------------------------------------------------------------

(2) In excess of the de minimis. The recipient government will next
calculate the total value of all covered changes in the reporting year
resulting in revenue reductions, identified in Step 1. If the total
value of the revenue reductions resulting from these changes is below
the de minimis level, the recipient government will be deemed not to
have any revenue-reducing changes for the purpose of determining the
recognized net reduction. If the total is above the de minimis level,
the recipient government must identify sources of in-year revenue to
cover the full costs of changes that reduce tax revenue.
The de minimis level is calculated as 1 percent of the reporting
year's baseline. Treasury recognizes that, pursuant to their taxing
authority, States and territories may make many small changes to alter
the composition of their tax revenues or implement other policies with
marginal effects on tax revenues. They may also make changes based on
projected revenue effects that turn out to differ from actual effects,
unintentionally resulting in minor revenue changes that are not fairly
described as ``resulting from'' tax law changes. The de minimis level
recognizes the inherent challenges and uncertainties that recipient
governments face, and thus allows relatively small reductions in tax
revenue without consequence. Treasury determined the 1 percent level by
assessing the historical effects of state-level tax policy changes in
state EITCs implemented to effect policy goals other than reducing net
tax revenues.\168\ The 1 percent de minimis level reflects the
historical reductions in revenue due to minor changes in state fiscal
policies.
---------------------------------------------------------------------------

\168\ Data provided by the Urban-Brookings Tax Policy Center for
state-level EITC changes for 2004-2017.
---------------------------------------------------------------------------

(3) Safe harbor. The recipient government will then compare the
reporting year's actual tax revenue to the baseline. If actual tax
revenue is greater than the baseline, Treasury will deem the recipient
government not to have any recognized net reduction for the reporting
year, and therefore to be in a safe harbor and outside the ambit of the
offset provision. This approach is consistent with the ARPA, which
contemplates recoupment of Fiscal Recovery Funds only in the event that
such funds are used to offset a reduction in net tax revenue. If net
tax revenue has not been reduced, this provision does not apply. In the
event that actual tax revenue is above the baseline, the organic
revenue growth that has occurred, plus any other revenue-raising
changes, by definition must have been enough to offset the in-year
costs of the covered changes.
(4) Consideration of other sources of funding. Next, the recipient
government will identify and calculate the total value of changes that
could pay for revenue reduction due to covered changes and sum these
items. This amount can be used to pay for up to the total value of
revenue-reducing changes in the reporting year. These changes consist
of two categories:
(a) Tax and other increases in revenue. The recipient government
must identify and consider covered changes in policy that the recipient
government predicts will have the effect of increasing general revenue
in a given reporting year. As when identifying and valuing covered
changes that reduce tax revenue, the value of revenue-raising changes
may be reported based on estimated values produced by a budget model,
incorporating reasonable assumptions, aligned with the recipient
government's existing approach for measuring the effects of fiscal
policies, and measured relative to a current law baseline, or based on
actual values using a statistical methodology to isolate the change in
year-over-year revenue attributable to the covered change(s). Further,
and as discussed above, estimation approaches should not use dynamic
scoring methodologies that incorporate the effects of macroeconomic
growth because growth is accounted for separately under the interim
final rule. In general and where possible, reporting should be produced
by the agency of the recipient government responsible for estimating
the costs and effects of fiscal policy changes. This approach offers
recipient governments the flexibility to determine their reporting
methodology based on their existing budget scoring practices and
capabilities.
(b) Covered spending cuts. A recipient government also may cut
spending in certain areas to pay for covered changes that reduce tax
revenue, up to the amount of the recipient government's net reduction
in total spending as described below. These changes must be reductions
in government outlays not in an area where the recipient government has
spent Fiscal Recovery Funds. To better align with existing reporting
and accounting, the interim final rule considers the department,
agency, or

[[Page 26810]]

authority from which spending has been cut and whether the recipient
government has spent Fiscal Recovery Funds on that same department,
agency, or authority. This approach was selected to allow recipient
governments to report how Fiscal Recovery Funds have been spent using
reporting units already incorporated into their budgeting process. If
they have not spent Fiscal Recovery Funds in a department, agency, or
authority, the full amount of the reduction in spending counts as a
covered spending cut, up to the recipient government's net reduction in
total spending. If they have, the Fiscal Recovery Funds generally would
be deemed to have replaced the amount of spending cut and only
reductions in spending above the amount of Fiscal Recovery Funds spent
on the department, agency, or authority would count.
To calculate the amount of spending cuts that are available to
offset a reduction in tax revenue, the recipient government must first
consider whether there has been a reduction in total net spending,
excluding Fiscal Recovery Funds (net reduction in total spending). This
approach ensures that reported spending cuts actually create fiscal
space, rather than simply offsetting other spending increases. A net
reduction in total spending is measured as the difference between total
spending in each reporting year, excluding Fiscal Recovery Funds spent,
relative to total spending for the recipient's fiscal year ending in
2019, adjusted for inflation. Measuring reductions in spending relative
to 2019 reflects the fact that the fiscal space created by a spending
cut persists so long as spending remains below its original level, even
if it does not decline further, relative to the same amount of revenue.
Measuring spending cuts from year to year would, by contrast, not
recognize any available funds to offset revenue reductions unless
spending continued to decline, failing to reflect the actual
availability of funds created by a persistent change and limiting the
discretion of States and territories. In general and where possible,
reporting should be produced by the agency of the recipient government
responsible for estimating the costs and effects of fiscal policy
changes. Treasury chose this approach because while many recipient
governments may score budget legislation using projections, spending
cuts are readily observable using actual values.
This approach--allowing only spending reductions in areas where the
recipient government has not spent Fiscal Recovery Funds to be used as
an offset for a reduction in net tax revenue--aims to prevent recipient
governments from using Fiscal Recovery Funds to supplant State or
territory funding in the eligible use areas, and then use those State
or territory funds to offset tax cuts. Such an approach helps ensure
that Fiscal Recovery Funds are not used to ``indirectly'' offset
revenue reductions due to covered changes.
In order to help ensure recipient governments use Fiscal Recovery
Funds in a manner consistent with the prescribed eligible uses and do
not use Fiscal Recovery Funds to indirectly offset a reduction in net
tax revenue resulting from a covered change, Treasury will monitor
changes in spending throughout the covered period. If, over the course
of the covered period, a spending cut is subsequently replaced with
Fiscal Recovery Funds and used to indirectly offset a reduction in net
tax revenue resulting from a covered change, Treasury may consider such
change to be an evasion of the restrictions of the offset provision and
seek recoupment of such amounts.
(5) Identification of amounts subject to recoupment. If a recipient
government (i) reports covered changes that reduce tax revenue (Step
1); (ii) to a degree greater than the de minimis (Step 2); (iii) has
experienced a reduction in net tax revenue (Step 3); and (iv) lacks
sufficient revenue from other, permissible sources to pay for the
entirety of the reduction (Step 4), then the recipient government will
be considered to have used Fiscal Recovery Funds to offset a reduction
in net tax revenue, up to the amount that revenue has actually
declined. That is, the maximum value of reduction in revenue due to
covered changes which a recipient government must cover is capped at
the difference between the baseline and actual tax revenue.\169\ In the
event that the baseline is above actual tax revenue and the difference
between them is less than the sum of revenue reducing changes that are
not paid for with other, permissible sources, organic revenue growth
has implicitly offset a portion of the reduction. For example, if a
recipient government reduces tax revenue by $1 billion, makes no other
changes, and experiences revenue growth driven by organic economic
growth worth $500 million, it need only pay for the remaining $500
million with sources other than Fiscal Recovery Funds. The revenue
reduction cap implements this approach for permitting organic revenue
growth to cover the cost of tax cuts.
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\169\ This cap is applied in Sec. 35.8(c) of the interim final
rule, calculating the amount of funds used in violation of the tax
offset provision.
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Finally, as discussed further in Section IV of this SUPPLEMENTARY
INFORMATION, a recipient government may request reconsideration of any
amounts identified as subject to recoupment under this framework. This
process ensures that all relevant facts and circumstances, including
information regarding planned spending cuts and budgeting assumptions,
are considered prior to a determination that an amount must be repaid.
Amounts subject to recoupment are calculated on an annual basis;
amounts recouped in one year cannot be returned if the State or
territory subsequently reports an increase in net tax revenue.
To facilitate the implementation of the framework above, and in
addition to reporting required on eligible uses, in each year of the
reporting period, each State and territory will report to Treasury the
following items:
Actual net tax revenue for the reporting year;
Each revenue-reducing change made to date during the
covered period and the in-year value of each change;
Each revenue-raising change made to date during the
covered period and the in-year value of each change;
Each covered spending cut made to date during the covered
period, the in-year value of each cut, and documentation demonstrating
that each spending cut is covered as prescribed under the interim final
rule;
Treasury will provide additional guidance and instructions the
reporting requirements at a later date.
Question 28: Does the interim final rule's definition of tax
revenue accord with existing State and territorial practice and, if
not, are there other definitions or elements Treasury should consider?
Discuss why or why not.
Question 29: The interim final rule permits certain spending cuts
to cover the costs of reductions in tax revenue, including cuts in a
department, agency, or authority in which the recipient government is
not using Fiscal Recovery Funds. How should Treasury and recipient
governments consider the scope of a department, agency, or authority
for the use of funds to ensure spending cuts are not being substituted
with Fiscal Recovery Funds while also avoiding an overbroad definition
of that captures spending that is, in fact, distinct?
Question 30: Discuss the budget scoring methodologies currently
used by States and territories. How should the interim final rule take
into consideration differences in approaches? Please discuss the use of

[[Page 26811]]

practices including but not limited to macrodynamic scoring,
microdynamic scoring, and length of budget windows.
Question 31: If a recipient government has a balanced budget
requirement, how will that requirement impact its use of Fiscal
Recovery Funds and ability to implement this framework?
Question 32: To implement the framework described above, the
interim final rule establishes certain reporting requirements. To what
extent do recipient governments already produce this information and on
what timeline? Discuss ways that Treasury and recipient governments may
better rely on information already produced, while ensuring a
consistent application of the framework.
Question 33: Discuss States' and territories' ability to produce
the figures and numbers required for reporting under the interim final
rule. What additional reporting tools, such as a standardized template,
would facilitate States' and territories' ability to complete the
reporting required under the interim final rule?

C. Other Restrictions on Use

Payments from the Fiscal Recovery Funds are also subject to pre-
existing limitations provided in other Federal statutes and regulations
and may not be used as non-Federal match for other Federal programs
whose statute or regulations bar the use of Federal funds to meet
matching requirements. For example, payments from the Fiscal Recovery
Funds may not be used to satisfy the State share of Medicaid.\170\
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\170\ See 42 CFR 433.51 and 45 CFR 75.306.
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As provided for in the award terms, payments from the Fiscal
Recovery Funds as a general matter will be subject to the provisions of
the Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards (2 CFR part 200) (the Uniform
Guidance), including the cost principles and restrictions on general
provisions for selected items of cost.

D. Timeline for Use of Fiscal Recovery Funds

Section 602(c)(1) and section 603(c)(1) require that payments from
the Fiscal Recovery Funds be used only to cover costs incurred by the
State, territory, Tribal government, or local government by December
31, 2024. Similarly, the CARES Act provided that payments from the CRF
be used to cover costs incurred by December 31, 2021.\171\ The
definition of ``incurred'' does not have a clear meaning. With respect
to the CARES Act, on the understanding that the CRF was intended to be
used to meet relatively short-term needs, Treasury interpreted this
requirement to mean that, for a cost to be considered to have been
incurred, performance of the service or delivery of the goods acquired
must occur by December 31, 2021. In contrast, the ARPA, passed at a
different stage of the COVID-19 public health emergency, was intended
to provide more general fiscal relief over a broader timeline. In
addition, the ARPA expressly permits the use of Fiscal Recovery Funds
for improvements to water, sewer, and broadband infrastructure, which
entail a longer timeframe. In recognition of this, Treasury is
interpreting the requirement in section 602 and section 603 that costs
be incurred by December 31, 2024, to require only that recipients have
obligated the Fiscal Recovery Funds by such date. The interim final
rule adopts a definition of ``obligation'' that is based on the
definition used for purposes of the Uniform Guidance, which will allow
for uniform administration of this requirement and is a definition with
which most recipients will be familiar.
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\171\ Section 1001 of Division N of the Consolidated
Appropriations Act, 2021 amended section 601(d)(3) of the Act by
extending the end of the covered period for CRF expenditures from
December 30, 2020 to December 31, 2021.
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Payments from the Fiscal Recovery Funds are grants provided to
recipients to mitigate the fiscal effects of the COVID-19 public health
emergency and to respond to the public health emergency, consistent
with the eligible uses enumerated in sections 602(c)(1) and
603(c)(1).\172\ As such, these funds are intended to provide economic
stimulus in areas still recovering from the economic effects of the
pandemic. In implementing and interpreting these provisions, including
what it means to ``respond to'' the COVID-19 public health emergency,
Treasury takes into consideration pre-pandemic facts and circumstances
(e.g., average revenue growth prior to the pandemic) as well as impact
of the pandemic that predate the enactment of the ARPA (e.g.,
replenishing Unemployment Trust balances drawn during the pandemic).
While assessing the effects of the COVID-19 public health emergency
necessarily takes into consideration the facts and circumstances that
predate the ARPA, use of Fiscal Recovery Funds is forward looking.
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\172\ Sections 602(a), 603(a), 602(c)(1) and 603(c)(1) of the
Act.
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As discussed above, recipients are permitted to use payments from
the Fiscal Recovery Funds to respond to the public health emergency, to
respond to workers performing essential work by providing premium pay
or providing grants to eligible employers, and to make necessary
investments in water, sewer, or broadband infrastructure, which all
relate to prospective uses. In addition, sections 602(c)(1)(C) and
603(c)(1)(C) permit recipients to use Fiscal Recovery Funds for the
provision of government services. This clause provides that the amount
of funds that may be used for this purpose is measured by reference to
the reduction in revenue due to the public health emergency relative to
revenues collected in the most recent full fiscal year, but this
reference does not relate to the period during which recipients may use
the funds, which instead refers to prospective uses, consistent with
the other eligible uses.
Although as discussed above the eligible uses of payments from the
Fiscal Recovery Funds are all prospective in nature, Treasury considers
the beginning of the covered period for purposes of determining
compliance with section 602(c)(2)(A) to be the relevant reference point
for this purpose. The interim final rule thus permits funds to be used
to cover costs incurred beginning on March 3, 2021. This aligns the
period for use of Fiscal Recovery Funds with the period during which
these funds may not be used to offset reductions in net tax revenue.
Permitting Fiscal Recovery Funds to be used to cover costs incurred
beginning on this date will also mean that recipients that began
incurring costs in the anticipation of enactment of the ARPA and in
advance of the issuance of this rule and receipt of payment from the
Fiscal Recovery Funds would be able to cover them using these
payments.\173\
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\173\ Given the nature of this program, recipients will not be
permitted to use funds to cover pre-award costs, i.e., those
incurred prior to March 3, 2021.
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As set forth in the award terms, the period of performance will run
until December 31, 2026, which will provide recipients a reasonable
amount of time to complete projects funded with payments from the
Fiscal Recovery Funds.

IV. Recoupment Process

Under the ARPA, failure to comply with the restrictions on use
contained in sections 602(c) and 603(c) of the Act may result in
recoupment of funds.\174\ The interim final rule implements these
provisions by establishing a process for recoupment.
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\174\ Sections 602(e) and 603(e) of the Act.
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Identification and Notice of Violations. Failure to comply with the
restrictions on use will be identified based on reporting provided by
the

[[Page 26812]]

recipient. As discussed further in Sections III.B and VIII of this
SUPPLEMENTARY INFORMATION, Treasury will collect information regarding
eligible uses on a quarterly basis and on the tax offset provision on
an annual basis. Treasury also may consider other information in
identifying a violation, such as information provided by members of the
public. If Treasury identifies a violation, it will provide written
notice to the recipient along with an explanation of such amounts.
Request for Reconsideration. Under the interim final rule, a
recipient may submit a request for reconsideration of any amounts
identified in the notice provided by Treasury. This reconsideration
process provides a recipient the opportunity to submit additional
information it believes supports its request in light of the notice of
recoupment, including, for example, additional information regarding
the recipient's use of Fiscal Recovery Funds or its tax revenues. The
process also provides the Secretary with an opportunity to consider all
information relevant to whether a violation has occurred, and if so,
the appropriate amount for recoupment.
The interim final rule also establishes requirements for the timing
of a request for reconsideration. Specifically, if a recipient wishes
to request reconsideration of any amounts identified in the notice, the
recipient must submit a written request for reconsideration to the
Secretary within 60 calendar days of receipt of such notice. The
request must include an explanation of why the recipient believes that
the finding of a violation or recoupable amount identified in the
notice of recoupment should be reconsidered. To facilitate the
Secretary's review of a recipient's request for reconsideration, the
request should identify all supporting reasons for the request. Within
60 calendar days of receipt of the recipient's request for
reconsideration, the recipient will be notified of the Secretary's
decision to affirm, withdraw, or modify the notice of recoupment. Such
notification will include an explanation of the decision, including
responses to the recipient's supporting reasons and consideration of
additional information provided.
The process and timeline established by the interim final rule are
intended to provide the recipient with an adequate opportunity to fully
present any issues or arguments in response to the notice of
recoupment.\175\ This process will allow the Secretary to respond to
the issues and considerations raised in the request for reconsideration
taking into account the information and arguments presented by the
recipient along with any other relevant information.
---------------------------------------------------------------------------

\175\ The interim final rule also provides that Treasury may
extend any deadlines.
---------------------------------------------------------------------------

Repayment. Finally, the interim final rule provides that any
amounts subject to recoupment must be repaid within 120 calendar days
of receipt of any final notice of recoupment or, if the recipient has
not requested reconsideration, within 120 calendar days of the initial
notice provided by the Secretary.
Question 34: Discuss the timeline for requesting reconsideration
under the interim final rule. What, if any, challenges does this
timeline present?

V. Payments in Tranches to Local Governments and Certain States

Section 603 of the Act provides that the Secretary will make
payments to local governments in two tranches, with the second tranche
being paid twelve months after the first payment. In addition, section
602(b)(6)(A)(ii) provides that the Secretary may withhold payment of up
to 50 percent of the amount allocated to each State and territory for a
period of up to twelve months from the date on which the State or
territory provides its certification to the Secretary. Any such
withholding for a State or territory is required to be based on the
unemployment rate in the State or territory as of the date of the
certification.
The Secretary has determined to provide in this interim final rule
for withholding of 50 percent of the amount of Fiscal Recovery Funds
allocated to all States (and the District of Columbia) other than those
with an unemployment rate that is 2.0 percentage points or more above
its pre-pandemic (i.e., February 2020) level. The Secretary will refer
to the latest available monthly data from the Bureau of Labor
Statistics as of the date the certification is provided. Based on data
available at the time of public release of this interim final rule,
this threshold would result in a majority of States being paid in two
tranches.
Splitting payments for the majority of States is consistent with
the requirement in section 603 of the Act to make payments from the
Coronavirus Local Fiscal Recovery Fund to local governments in two
tranches.\176\ Splitting payments to States into two tranches will help
encourage recipients to adapt, as necessary, to new developments that
could arise over the coming twelve months, including potential changes
to the nature of the public health emergency and its negative economic
impacts. While the U.S. economy has been recovering and adding jobs in
aggregate, there is still considerable uncertainty in the economic
outlook and the interaction between the pandemic and the economy.\177\
For these reasons, Treasury believes it will be appropriate for a
majority of recipients to adapt their plans as the recovery evolves.
For example, a faster-than-expected economic recovery in 2021 could
lead a recipient to dedicate more Fiscal Recovery Funds to longer-term
investments starting in 2022. In contrast, a slower-than-expected
economic recovery in 2021 could lead a recipient to use additional
funds for near-term stimulus in 2022.
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\176\ With respect to Federal financial assistance more
generally, States are subject to the requirements of the Cash
Management Improvement Act (CMIA), under which Federal funds are
drawn upon only on an as needed basis and States are required to
remit interest on unused balances to Treasury. Given the statutory
requirement for Treasury to make payments to States within a certain
period, these requirements of the CMIA and Treasury's implementing
regulations at 31 CFR part 205 will not apply to payments from the
Fiscal Recovery Funds. Providing funding in two tranches to the
majority of States reflects, to the maximum extent permitted by
section 602 of the Act, the general principles of Federal cash
management and stewardship of Federal funding, yet will be much less
restrictive than the usual requirements to which States are subject.
\177\ The potential course of the virus, and its impact on the
economy, has contributed to a heightened degree of uncertainty
relative to prior periods. See, e.g., Dave Altig et al., Economic
uncertainty before and during the COVID-19 pandemic, J. of Public
Econ. (Nov. 2020), available at https://www.sciencedirect.com/science/article/abs/pii/S0047272720301389.
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At the same time, the statute contemplates the possibility that
elevated unemployment in certain States could justify a single payment.
Elevated unemployment is indicative of a greater need to assist
unemployed workers and stimulate a faster economic recovery. For this
reason, the interim final rule provides that States and territories
with an increase in their unemployment rate over a specified threshold
may receive a single payment, with the expectation that a single
tranche will better enable these States and territories to take
additional immediate action to aid the unemployed and strengthen their
economies.
Following the initial pandemic-related spike in unemployment in
2020, States' unemployment rates have been trending back towards pre-
pandemic levels. However, some States' labor markets are healing more
slowly than others. Moreover, States varied widely in their pre-
pandemic levels of unemployment, and some States remain substantially
further from their pre-

[[Page 26813]]

pandemic starting point. Consequently, Treasury is delineating States
with significant remaining elevation in the unemployment rate, based on
the net difference to pre-pandemic levels.
Treasury has established that significant remaining elevation in
the unemployment rate is a net change in the unemployment rate of 2.0
percentage points or more relative to pre-pandemic levels. In the four
previous recessions going back to the early 1980s, the national
unemployment rate rose by 3.6, 2.3, 2.0, and 5.0 percentage points, as
measured from the start of the recession to the eventual peak during or
immediately following the recession.\178\ Each of these increases can
therefore represent a recession's impact on unemployment. To identify
States with significant remaining elevation in unemployment, Treasury
took the lowest of these four increases, 2.0 percentage points, to
indicate states where, despite improvement in the unemployment rate,
current labor market conditions are consistent still with a historical
benchmark for a recession.
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\178\ Includes the period during and immediately following
recessions, as defined by the National Bureau of Economic Research.
National Bureau of Economic Research, US Business Cycle Expansions
and Contractions, https://www.nber.org/research/data/us-business-cycle-expansions-and-contractions (last visited Apr. 27, 2021).
Based on data from U.S. Bureau of Labor Statistics, Unemployment
Rate [UNRATE], retrieved from FRED, Federal Reserve Bank of St.
Louis, https://fred.stlouisfed.org/series/UNRATE (last visited Apr.
27, 2021).
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No U.S. territory will be subject to withholding of its payment
from the Fiscal Recovery Funds. For Puerto Rico, the Secretary has
determined that the current level of the unemployment rate (8.8
percent, as of March 2021 \179\) is sufficiently high such that
Treasury should not withhold any portion of its payment from the Fiscal
Recovery Funds regardless of its change in unemployment rate relative
to its pre-pandemic level. For U.S. territories that are not included
in the Bureau of Labor Statistics' monthly unemployment rate data, the
Secretary will not exercise the authority to withhold amounts from the
Fiscal Recovery Funds.
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\179\ U.S. Bureau of Labor Statistics, Economic News Release--
Table 1. Civilian labor force and unemployment by state and selected
area, seasonally adjusted, https://www.bls.gov/news.release/laus.t01.htm (last visited Apr. 30, 2021).
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VI. Transfer

The statute authorizes State, territorial, and Tribal governments;
counties; metropolitan cities; and nonentitlement units of local
government (counties, metropolitan cities, and nonentitlement units of
local government are collectively referred to as ``local governments'')
to transfer amounts paid from the Fiscal Recovery Funds to a number of
specified entities. By permitting these transfers, Congress recognized
the importance of providing flexibility to governments seeking to
achieve the greatest impact with their funds, including by working with
other levels or units of government or private entities to assist
recipient governments in carrying out their programs. This includes
special-purpose districts that perform specific functions in the
community, such as fire, water, sewer, or mosquito abatement districts.
Specifically, under section 602(c)(3), a State, territory, or
Tribal government may transfer funds to a ``private nonprofit
organization . . . a Tribal organization . . . a public benefit
corporation involved in the transportation of passengers or cargo, or a
special-purpose unit of State or local government.'' \180\ Similarly,
section 603(c)(3) authorizes a local government to transfer funds to
the same entities (other than Tribal organizations).
---------------------------------------------------------------------------

\180\ Section 602(c)(3) of the Act.
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The interim final rule clarifies that the lists of transferees in
sections 602(c)(3) and 603(c)(3) are not exclusive. The interim final
rule permits State, territorial, and Tribal governments to transfer
Fiscal Recovery Funds to other constituent units of government or
private entities beyond those specified in the statute. Similarly,
local governments are authorized to transfer Fiscal Recovery Funds to
other constituent units of government (e.g., a county is able to
transfer Fiscal Recovery Funds to a city, town, or school district
within it) or to private entities. This approach is intended to help
provide funding to local governments with needs that may exceed the
allocation provided under the statutory formula.
State, local, territorial, and Tribal governments that receive a
Federal award directly from a Federal awarding agency, such as
Treasury, are ``recipients.'' A transferee receiving a transfer from a
recipient under sections 602(c)(3) and 603(c)(3) will be a
subrecipient. Subrecipients are entities that receive a subaward from a
recipient to carry out a program or project on behalf of the recipient
with the recipient's Federal award funding. The recipient remains
responsible for monitoring and overseeing the subrecipient's use of
Fiscal Recovery Funds and other activities related to the award to
ensure that the subrecipient complies with the statutory and regulatory
requirements and the terms and conditions of the award. Recipients also
remain responsible for reporting to Treasury on their subrecipients'
use of payments from the Fiscal Recovery Funds for the duration of the
award.
Transfers under sections 602(c)(3) and 603(c)(3) must qualify as an
eligible use of Fiscal Recovery Funds by the transferor. Once Fiscal
Recovery Funds are received, the transferee must abide by the
restrictions on use applicable to the transferor under the ARPA and
other applicable law and program guidance. For example, if a county
transferred Fiscal Recovery Funds to a town within its borders to
respond to the COVID-19 public health emergency, the town would be
bound by the eligible use requirements applicable to the county in
carrying out the county's goal. This also means that county A may not
transfer Fiscal Recovery Funds to county B for use in county B because
such a transfer would not, from the perspective of the transferor
(county A), be an eligible use in county A.
Section 603(c)(4) separately provides for transfers by a local
government to its State or territory. A transfer under section
603(c)(4) will not make the State a subrecipient of the local
government, and such Fiscal Recovery Funds may be used by the State for
any purpose permitted under section 602(c). A transfer under section
603(c)(4) will result in a cancellation or termination of the award on
the part of the transferor local government and a modification of the
award to the transferee State or territory. The transferor must provide
notice of the transfer to Treasury in a format specified by Treasury.
If the local government does not provide such notice, it will remain
legally obligated to Treasury under the award and remain responsible
for ensuring that the awarded Fiscal Recovery Funds are being used in
accordance with the statute and program guidance and for reporting on
such uses to Treasury. A State that receives a transfer from a local
government under section 603(c)(4) will be bound by all of the use
restrictions set forth in section 602(c) with respect to the use of
those Fiscal Recovery Funds, including the prohibitions on use of such
Fiscal Recovery Funds to offset certain reductions in taxes or to make
deposits into pension funds.
Question 35: What are the advantages and disadvantages of treating
the list of transferees in sections 602(c)(3) and 603(c)(3) as
nonexclusive, allowing States and localities to transfer funds to
entities outside of the list?
Question 36: Are there alternative ways of defining ``special-
purpose unit of State or local government'' and

[[Page 26814]]

``public benefit corporation'' that would better further the aims of
the Funds?

VII. Nonentitlement Units of Government

The Fiscal Recovery Funds provides for $19.53 billion in payments
to be made to States and territories which will distribute the funds to
nonentitlement units of local government (NEUs); local governments
which generally have populations below 50,000. These local governments
have not yet received direct fiscal relief from the Federal Government
during the COVID-19 public health emergency, making Fiscal Recovery
Funds payments an important source of support for their public health
and economic responses. Section 603 requires Treasury to allocate and
pay Fiscal Recovery Funds to the States and territories and requires
the States and territories to distribute Fiscal Recovery Funds to NEUs
based on population within 30 days of receipt unless an extension is
granted by the Secretary. The interim final rule clarifies certain
aspects regarding the distribution of Fiscal Recovery by States and
territories to NEUs, as well as requirements around timely payments
from the Fiscal Recovery Funds.
The ARPA requires that States and territories allocate funding to
NEUs in an amount that bears the same proportion as the population of
the NEU bears to the total population of all NEUs in the State or
territory, subject to a cap (described below). Because the statute
requires States and territories to make distributions based on
population, States and territories may not place additional conditions
or requirements on distributions to NEUs, beyond those required by the
ARPA and Treasury's implementing regulations and guidance. For example,
a State may not impose stricter limitations than permitted by statute
or Treasury regulations or guidance on an NEU's use of Fiscal Recovery
Funds based on the NEU's proposed spending plan or other policies.
States and territories are also not permitted to offset any debt owed
by the NEU against the NEU's distribution. Further, States and
territories may not provide funding on a reimbursement basis--e.g.,
requiring NEUs to pay for project costs up front before being
reimbursed with Fiscal Recovery Funds payments--because this funding
model would not comport with the statutory requirement that States and
territories make distributions to NEUs within the statutory timeframe.
Similarly, States and territories distributing Fiscal Recovery
Funds payments to NEUs are responsible for complying with the Fiscal
Recovery Funds statutory requirement that distributions to NEUs not
exceed 75 percent of the NEU's most recent budget. The most recent
budget is defined as the NEU's most recent annual total operating
budget, including its general fund and other funds, as of January 27,
2020. Amounts in excess of such cap and therefore not distributed to
the NEU must be returned to Treasury by the State or territory. States
and territories may rely for this determination on a certified top-line
budget total from the NEU.
Under the interim final rule, the total allocation and distribution
to an NEU, including the sum of both the first and second tranches of
funding, cannot exceed the 75 percent cap. States and territories must
permit NEUs without formal budgets as of January 27, 2020 to self-
certify their most recent annual expenditures as of January 27, 2020
for the purpose of calculating the cap. This approach will provide an
administrable means to implement the cap for small local governments
that do not adopt a formal budget.
Section 603(b)(3) of the Social Security Act provides for Treasury
to make payments to counties but provides that, in the case of an
amount to be paid to a county that is not a unit of general local
government, the amount shall instead be paid to the State in which such
county is located, and such State shall distribute such amount to each
unit of general local government within such county in an amount that
bears the same proportion to the amount to be paid to such county as
the population of such units of general local government bears to the
total population of such county. As with NEUs, States may not place
additional conditions or requirements on distributions to such units of
general local government, beyond those required by the ARPA and
Treasury's implementing regulations and guidance.
In the case of consolidated governments, section 603(b)(4) allows
consolidated governments (e.g., a city-county consolidated government)
to receive payments under each allocation based on the respective
formulas. In the case of a consolidated government, Treasury interprets
the budget cap to apply to the consolidated government's NEU allocation
under section 603(b)(2) but not to the consolidated government's county
allocation under section 603(b)(3).
If necessary, States and territories may use the Fiscal Recovery
Funds under section 602(c)(1)(A) to fund expenses related to
administering payments to NEUs and units of general local government,
as disbursing these funds itself is a response to the public health
emergency and its negative economic impacts. If a State or territory
requires more time to disburse Fiscal Recovery Funds to NEUs than the
allotted 30 days, Treasury will grant extensions of not more than 30
days for States and territories that submit a certification in writing
in accordance with section 603(b)(2)(C)(ii)(I). Additional extensions
may be granted at the discretion of the Secretary.
Question 37: What are alternative ways for States and territories
to enforce the 75 percent cap while reducing the administrative burden
on them?
Question 38: What criteria should Treasury consider in assessing
requests for extensions for further time to distribute NEU payments?

VIII. Reporting

States (defined to include the District of Columbia), territories,
metropolitan cities, counties, and Tribal governments will be required
to submit one interim report and thereafter quarterly Project and
Expenditure reports through the end of the award period on December 31,
2026. The interim report will include a recipient's expenditures by
category at the summary level from the date of award to July 31, 2021
and, for States and territories, information related to distributions
to nonentitlement units. Recipients must submit their interim report to
Treasury by August 31, 2021. Nonentitlement units of local government
are not required to submit an interim report.
The quarterly Project and Expenditure reports will include
financial data, information on contracts and subawards over $50,000,
types of projects funded, and other information regarding a recipient's
utilization of the award funds. The reports will include the same
general data (e.g., on obligations, expenditures, contracts, grants,
and sub-awards) as those submitted by recipients of the CRF, with some
modifications. Modifications will include updates to the expenditure
categories and the addition of data elements related to specific
eligible uses, including some of the reporting elements described in
sections above. The initial quarterly Project and Expenditure report
will cover two calendar quarters from the date of award to September
30, 2021, and must be submitted to Treasury by October 31, 2021. The
subsequent quarterly reports will cover one calendar quarter and must
be submitted to Treasury within 30 days after the end of each calendar
quarter.
Nonentitlement units of local government will be required to submit

[[Page 26815]]

annual Project and Expenditure reports until the end of the award
period on December 31, 2026. The initial annual Project and Expenditure
report for nonentitlement units of local government will cover activity
from the date of award to September 30, 2021 and must be submitted to
Treasury by October 31, 2021. The subsequent annual reports must be
submitted to Treasury by October 31 each year.
States, territories, metropolitan cities, and counties with a
population that exceeds 250,000 residents will also be required to
submit an annual Recovery Plan Performance report to Treasury. The
Recovery Plan Performance report will provide the public and Treasury
information on the projects that recipients are undertaking with
program funding and how they are planning to ensure project outcomes
are achieved in an effective, efficient, and equitable manner. Each
jurisdiction will have some flexibility in terms of the form and
content of the Recovery Plan Performance report, as long as it includes
the minimum information required by Treasury. The Recovery Plan
Performance report will include key performance indicators identified
by the recipient and some mandatory indicators identified by Treasury,
as well as programmatic data in specific eligible use categories and
the specific reporting requirements described in the sections above.
The initial Recovery Plan Performance report will cover the period from
the date of award to July 31, 2021 and must be submitted to Treasury by
August 31, 2021. Thereafter, Recovery Plan Performance reports will
cover a 12-month period, and recipients will be required to submit the
report to Treasury within 30 days after the end of the 12-month period.
The second Recovery Plan Performance report will cover the period from
July 1, 2021 to June 30, 2022, and must be submitted to Treasury by
July 31, 2022. Each annual Recovery Plan Performance report must be
posted on the public-facing website of the recipient. Local governments
with fewer than 250,000 residents, Tribal governments, and
nonentitlement units of local government are not required to develop a
Recovery Plan Performance report.
Treasury will provide additional guidance and instructions on the
reporting requirements outlined above for the Fiscal Recovery Funds at
a later date.

IX. Comments and Effective Date

This interim final rule is being issued without advance notice and
public comment to allow for immediate implementation of this program.
As discussed below, the requirements of advance notice and public
comment do not apply ``to the extent that there is involved . . . a
matter relating to agency . . . grants.'' \181\ The interim final rule
implements statutory conditions on the eligible uses of the Fiscal
Recovery Funds grants, and addresses the payment of those funds, the
reporting on uses of funds, and potential consequences of ineligible
uses. In addition and as discussed below, the Administrative Procedure
Act also provides an exception to ordinary notice-and-comment
procedures ``when the agency for good cause finds (and incorporates the
finding and a brief statement of reasons therefor in the rules issued)
that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.'' \182\ This good
cause justification also supports waiver of the 60-day delayed
effective date for major rules under the Congressional Review Act at 5
U.S.C. 808(2). Although this interim final rule is effective
immediately, comments are solicited from interested members of the
public and from recipient governments on all aspects of the interim
final rule.
---------------------------------------------------------------------------

\181\ 5 U.S.C. 553(a)(2).
\182\ 5 U.S.C. 553(b)(3)(B); see also 5 U.S.C. 553(d)(3)
(creating an exception to the requirement of a 30-day delay before
the effective date of a rule ``for good cause found and published
with the rule'').
---------------------------------------------------------------------------

These comments must be submitted on or before July 16, 2021.

X. Regulatory Analyses

Executive Orders 12866 and 13563

This interim final rule is economically significant for the
purposes of Executive Orders 12866 and 13563. Treasury, however, is
proceeding under the emergency provision at Executive Order 12866
section 6(a)(3)(D) based on the need to act expeditiously to mitigate
the current economic conditions arising from the COVID-19 public health
emergency. The rule has been reviewed by the Office of Management and
Budget (OMB) in accordance with Executive Order 12866. This rule is
necessary to implement the ARPA in order to provide economic relief to
State, local, and Tribal governments adversely impacted by the COVID-19
public health emergency.
Under Executive Order 12866, OMB must determine whether this
regulatory action is ``significant'' and, therefore, subject to the
requirements of the Executive Order and subject to review by OMB.
Section 3(f) of Executive Order 12866 defines a significant regulatory
action as an action likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect a sector of the economy; productivity; competition;
jobs; the environment; public health or safety; or State, local, or
Tribal governments or communities in a material way (also referred to
as ``economically significant'' regulations);
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles stated in the
Executive order.

This regulatory action is an economically significant regulatory action
subject to review by OMB under section 3(f) of Executive Order 12866.
Treasury has also reviewed these regulations under Executive Order
13563, which supplements and explicitly reaffirms the principles,
structures, and definitions governing regulatory review established in
Executive Order 12866. To the extent permitted by law, section 1(b) of
Executive Order 13563 requires that an agency:
(1) Propose or adopt regulations only upon a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives taking into account,
among other things, and to the extent practicable, the costs of
cumulative regulations;
(3) Select, in choosing among alternative regulatory approaches,
those approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather
than the behavior or manner of compliance a regulated entity must
adopt; and
(5) Identify and assess available alternatives to direct
regulation, including providing economic incentives--such as user fees
or marketable permits--to encourage the desired behavior, or providing
information that enables the public to make choices.
Executive Order 13563 also requires an agency ``to use the best
available

[[Page 26816]]

techniques to quantify anticipated present and future benefits and
costs as accurately as possible.'' OMB's Office of Information and
Regulatory Affairs (OIRA) has emphasized that these techniques may
include ``identifying changing future compliance costs that might
result from technological innovation or anticipated behavioral
changes.''
Treasury has assessed the potential costs and benefits, both
quantitative and qualitative, of this regulatory action, and is issuing
this interim final rule only on a reasoned determination that the
benefits exceed the costs. In choosing among alternative regulatory
approaches, Treasury selected those approaches that would maximize net
benefits. Based on the analysis that follows and the reasons stated
elsewhere in this document, Treasury believes that this interim final
rule is consistent with the principles set forth in Executive Order
13563.
Treasury also has determined that this regulatory action does not
unduly interfere with States, territories, Tribal governments, and
localities in the exercise of their governmental functions.
This Regulatory Impact Analysis discusses the need for regulatory
action, the potential benefits, and the potential costs.
Need for Regulatory Action. This interim final rule implements the
$350 billion Fiscal Recovery Funds of the ARPA, which Congress passed
to help States, territories, Tribal governments, and localities respond
to the ongoing COVID-19 public health emergency and its economic
impacts. As the agency charged with execution of these programs,
Treasury has concluded that this interim final rule is needed to ensure
that recipients of Fiscal Recovery Funds fully understand the
requirements and parameters of the program as set forth in the statute
and deploy funds in a manner that best reflects Congress' mandate for
targeted fiscal relief.
This interim final rule is primarily a transfer rule: It transfers
$350 billion in aid from the Federal Government to states, territories,
Tribal governments, and localities, generating a significant
macroeconomic effect on the U.S. economy. In making this transfer,
Treasury has sought to implement the program in ways that maximize its
potential benefits while minimizing its costs. It has done so by aiming
to target relief in key areas according to the congressional mandate;
offering clarity to States, territories, Tribal governments, and
localities while maintaining their flexibility to respond to local
needs; and limiting administrative burdens.
Analysis of Benefits. Relative to a pre-statutory baseline, the
Fiscal Recovery Funds provide a combined $350 billion to State, local,
and Tribal governments for fiscal relief and support for costs incurred
responding to the COVID-19 pandemic. Treasury believes that this
transfer will generate substantial additional economic activity,
although given the flexibility accorded to recipients in the use of
funds, it is not possible to precisely estimate the extent to which
this will occur and the timing with which it will occur. Economic
research has demonstrated that state fiscal relief is an efficient and
effective way to mitigate declines in jobs and output during an
economic downturn.\183\ Absent such fiscal relief, fiscal austerity
among State, local, and Tribal governments could exert a prolonged drag
on the overall economic recovery, as occurred following the 2007-09
recession.\184\
---------------------------------------------------------------------------

\183\ Gabriel Chodorow-Reich et al., Does State Fiscal Relief
during Recessions Increase Employment? Evidence from the American
Recovery and Reinvestment Act, American Econ. J.: Econ. Policy, 4:3
118-45 (Aug. 2012), available at https://www.aeaweb.org/articles?id=10.1257/pol.4.3.118.
\184\ See, e.g., Fitzpatrick, Haughwout & Setren, Fiscal Drag
from the State and Local Sector?, Liberty Street Economics Blog,
Federal Reserve Bank of New York (June 27, 2012), https://www.libertystreeteconomics.newyorkfed.org/2012/06/fiscal-drag-from-the-state-and-local-sector.html; Jiri Jonas, Great Recession and
Fiscal Squeeze at U.S. Subnational Government Level, IMF Working
Paper 12/184, (July 2012), available at https://www.imf.org/external/pubs/ft/wp/2012/wp12184.pdf; Gordon, supra note 9.
---------------------------------------------------------------------------

This interim final rule provides benefits across several areas by
implementing the four eligible funding uses, as defined in statute:
Strengthening the response to the COVID-19 public health emergency and
its economic impacts; easing fiscal pressure on State, local, and
Tribal governments that might otherwise lead to harmful cutbacks in
employment or government services; providing premium pay to essential
workers; and making necessary investments in certain types of
infrastructure. In implementing the ARPA, Treasury also sought to
support disadvantaged communities that have been disproportionately
impacted by the pandemic. The Fiscal Recovery Funds as implemented by
the interim final rule can be expected to channel resources toward
these uses in order to achieve substantial near-term economic and
public health benefits, as well as longer-term benefits arising from
the allowable investments in water, sewer, and broadband infrastructure
and aid to families.
These benefits are achieved in the interim final rule through a
broadly flexible approach that sets clear guidelines on eligible uses
of Fiscal Recovery Funds and provides State, local, and Tribal
government officials discretion within those eligible uses to direct
Fiscal Recovery Funds to areas of greatest need within their
jurisdiction. While preserving recipients' overall flexibility, the
interim final rule includes several provisions that implement statutory
requirements and will help support use of Fiscal Recovery Funds to
achieve the intended benefits. The remainder of this section clarifies
how Treasury's approach to key provisions in the interim final rule
will contribute to greater realization of benefits from the program.
Revenue Loss: Recipients will compute the extent of
reduction in revenue by comparing actual revenue to a counterfactual
trend representing what could have plausibly been expected to occur in
the absence of the pandemic. The counterfactual trend begins with the
last full fiscal year prior to the public health emergency (as required
by statute) and projects forward with an annualized growth adjustment.
Treasury's decision to incorporate a growth adjustment into the
calculation of revenue loss ensures that the formula more fully
captures revenue shortfalls relative to recipients' pre-pandemic
expectations. Moreover, recipients will have the opportunity to re-
calculate revenue loss at several points throughout the program,
recognizing that some recipients may experience revenue effects with a
lag. This option to re-calculate revenue loss on an ongoing basis
should result in more support for recipients to avoid harmful cutbacks
in future years. In calculating revenue loss, recipients will look at
general revenue in the aggregate, rather than on a source-by-source
basis. Given that recipients may have experienced offsetting changes in
revenues across sources, Treasury's approach provides a more accurate
representation of the effect of the pandemic on overall revenues.
Premium Pay: Per the statute, recipients have broad
latitude to designate critical infrastructure sectors and make grants
to third-party employers for the purpose of providing premium pay or
otherwise respond to essential workers. While the interim final rule
generally preserves the flexibility in the statute, it does add a
requirement that recipients give written justification in the case that
premium pay would increase a worker's annual pay above a certain
threshold. To set this threshold, Treasury analyzed data

[[Page 26817]]

from the Bureau of Labor Statistics to determine a level that would not
require further justification for premium pay to the vast majority of
essential workers, while requiring higher scrutiny for provision of
premium pay to higher-earners who, even without premium pay, would
likely have greater personal financial resources to cope with the
effects of the pandemic. Treasury believes the threshold in the interim
final rule strikes the appropriate balance between preserving
flexibility and helping encourage use of these resources to help those
in greatest need. The interim final rule also requires that eligible
workers have regular in-person interactions or regular physical
handling of items that were also handled by others. This requirement
will also help encourage use of financial resources for those who have
endured the heightened risk of performing essential work.
Withholding of Payments to Recipients: Treasury believes
that for the vast majority of recipient entities, it will be
appropriate to receive funds in two separate payments. As discussed
above, withholding of payments ensures that recipients can adapt
spending plans to evolving economic conditions and that at least some
of the economic benefits will be realized in 2022 or later. However,
consistent with authorities granted to Treasury in the statute,
Treasury recognizes that a subset of States with significant remaining
elevation in the unemployment rate could face heightened additional
near-term needs to aid unemployed workers and stimulate the recovery.
Therefore, for a subset of State governments, Treasury will not
withhold any funds from the first payment. Treasury believes that this
approach strikes the appropriate balance between the general reasons to
provide funds in two payments and the heightened additional near-term
needs in specific States. As discussed above, Treasury set a threshold
based on historical analysis of unemployment rates in recessions.
Hiring Public Sector Employees: The interim final rule
states explicitly that recipients may use funds to restore their
workforces up to pre-pandemic levels. Treasury believes that this
statement is beneficial because it eliminates any uncertainty that
could cause delays or otherwise negatively impact restoring public
sector workforces (which, at time of publication, remain significantly
below pre-pandemic levels).
Finally, the interim final rule aims to promote and streamline the
provision of assistance to individuals and communities in greatest
need, particularly communities that have been historically
disadvantaged and have experienced disproportionate impacts of the
COVID-19 crisis. Targeting relief is in line with Executive Order
13985, ``Advancing Racial Equity and Support for Underserved
Communities Through the Federal Government,'' which laid out an
Administration-wide priority to support ``equity for all, including
people of color and others who have been historically underserved,
marginalized, and adversely affected by persistent poverty and
inequality.'' \185\ To this end, the interim final rule enumerates a
list of services that may be provided using Fiscal Recovery Funds in
low-income areas to address the disproportionate impacts of the
pandemic in these communities; establishes the characteristics of
essential workers eligible for premium pay and encouragement to serve
workers based on financial need; provides that recipients may use
Fiscal Recovery Funds to restore (to pre-pandemic levels) state and
local workforces, where women and people of color are
disproportionately represented; \186\ and targets investments in
broadband infrastructure to unserved and underserved areas.
Collectively, these provisions will promote use of resources to
facilitate the provision of assistance to individuals and communities
with the greatest need.
---------------------------------------------------------------------------

\185\ Executive Order on Advancing Racial Equity and Support for
Underserved Communities through the Federal Government (Jan. 20,
2021) (86 FR 7009, January 25, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government/ (last visited May 9, 2021).
\186\ David Cooper, Mary Gable & Algernon Austin, Economic
Policy Institute Briefing Paper, The Public-Sector Jobs Crisis:
Women and African Americans hit hardest by job losses in state and
local governments, https://www.epi.org/publication/bp339-public-sector-jobs-crisis (last visited May 9, 2021).
---------------------------------------------------------------------------

Analysis of Costs. This regulatory action will generate
administrative costs relative to a pre-statutory baseline. This
includes, chiefly, costs required to administer Fiscal Recovery Funds,
oversee subrecipients and beneficiaries, and file periodic reports with
Treasury. It also requires States to allocate Fiscal Recovery Funds to
nonentitlement units, which are smaller units of local government that
are statutorily required to receive their funds through States.
Treasury expects that the administrative burden associated with
this program will be moderate for a grant program of its size. Treasury
expects that most recipients receive direct or indirect funding from
Federal Government programs and that many have familiarity with how to
administer and report on Federal funds or grant funding provided by
other entities. In particular, States, territories, and large
localities will have received funds from the CRF and Treasury expects
them to rely heavily on established processes developed last year or
through prior grant funding, mitigating burden on these governments.
Treasury expects to provide technical assistance to defray the
costs of administration of Fiscal Recovery Funds to further mitigate
burden. In making implementation choices, Treasury has hosted numerous
consultations with a diverse range of direct recipients--States, small
cities, counties, and Tribal governments--along with various
communities across the United States, including those that are
underserved. Treasury lacks data to estimate the precise extent to
which this interim final rule generates administrative burden for
State, local, and Tribal governments, but seeks comment to better
estimate and account for these costs, as well as on ways to lessen
administrative burdens.

Executive Order 13132

Executive Order 13132 (entitled Federalism) prohibits an agency
from publishing any rule that has federalism implications if the rule
either imposes substantial, direct compliance costs on State, local,
and Tribal governments, and is not required by statute, or preempts
state law, unless the agency meets the consultation and funding
requirements of section 6 of the Executive order. This interim final
rule does not have federalism implications within the meaning of the
Executive order and does not impose substantial, direct compliance
costs on State, local, and Tribal governments or preempt state law
within the meaning of the Executive order. The compliance costs are
imposed on State, local, and Tribal governments by sections 602 and 603
of the Social Security Act, as enacted by the ARPA. Notwithstanding the
above, Treasury has engaged in efforts to consult and work
cooperatively with affected State, local, and Tribal government
officials and associations in the process of developing the interim
final rule. Pursuant to the requirements set forth in section 8(a) of
Executive Order 13132, Treasury certifies that it has complied with the
requirements of Executive Order 13132.

Administrative Procedure Act

The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq.,
generally requires public notice and an opportunity for comment before
a rule

[[Page 26818]]

becomes effective. However, the APA provides that the requirements of 5
U.S.C. 553 do not apply ``to the extent that there is involved . . . a
matter relating to agency . . . grants.'' The interim final rule
implements statutory conditions on the eligible uses of the Fiscal
Recovery Funds grants, and addresses the payment of those funds, the
reporting on uses of funds, and potential consequences of ineligible
uses. The rule is thus ``both clearly and directly related to a federal
grant program.'' National Wildlife Federation v. Snow, 561 F.2d 227,
232 (D.C. Cir. 1976). The rule sets forth the ``process necessary to
maintain state . . . eligibility for federal funds,'' id., as well as
the ``method[s] by which states can . . . qualify for federal aid,''
and other ``integral part[s] of the grant program,'' Center for Auto
Safety v. Tiemann, 414 F. Supp. 215, 222 (D.D.C. 1976). As a result,
the requirements of 5 U.S.C. 553 do not apply.
The APA also provides an exception to ordinary notice-and-comment
procedures ``when the agency for good cause finds (and incorporates the
finding and a brief statement of reasons therefor in the rules issued)
that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.'' 5 U.S.C.
553(b)(3)(B); see also 5 U.S.C. 553(d)(3) (creating an exception to the
requirement of a 30-day delay before the effective date of a rule ``for
good cause found and published with the rule''). Assuming 5 U.S.C. 553
applied, Treasury would still have good cause under sections
553(b)(3)(B) and 553(d)(3) for not undertaking section 553's
requirements. The ARPA is a law responding to a historic economic and
public health emergency; it is ``extraordinary'' legislation about
which ``both Congress and the President articulated a profound sense of
`urgency.''' Petry v. Block, 737 F.2d 1193, 1200 (D.C. Cir. 1984).
Indeed, several provisions implemented by this interim final rule
(sections 602(c)(1)(A) and 603(c)(1)(A)) explicitly provide funds to
``respond to the public health emergency,'' and the urgency is further
exemplified by Congress's command (in sections 602(b)(6)(B) and
603(b)(7)(A)) that, ``[t]o the extent practicable,'' funds must be
provided to Tribes and cities ``not later than 60 days after the date
of enactment.'' See Philadelphia Citizens in Action v. Schweiker, 669
F.2d 877, 884 (3d Cir. 1982) (finding good cause under circumstances,
including statutory time limits, where APA procedures would have been
``virtually impossible''). Finally, there is an urgent need for States
to undertake the planning necessary for sound fiscal policymaking,
which requires an understanding of how funds provided under the ARPA
will augment and interact with existing budgetary resources and tax
policies. Treasury understands that many states require immediate rules
on which they can rely, especially in light of the fact that the ARPA
``covered period'' began on March 3, 2021. The statutory urgency and
practical necessity are good cause to forego the ordinary requirements
of notice-and-comment rulemaking.

Congressional Review Act

The Administrator of OIRA has determined that this is a major rule
for purposes of Subtitle E of the Small Business Regulatory Enforcement
and Fairness Act of 1996 (also known as the Congressional Review Act or
CRA) (5 U.S.C. 804(2) et seq.). Under the CRA, a major rule takes
effect 60 days after the rule is published in the Federal Register. 5
U.S.C. 801(a)(3). Notwithstanding this requirement, the CRA allows
agencies to dispense with the requirements of section 801 when the
agency for good cause finds that such procedure would be impracticable,
unnecessary, or contrary to the public interest and the rule shall take
effect at such time as the agency promulgating the rule determines. 5
U.S.C. 808(2). Pursuant to section 808(2), for the reasons discussed
above, Treasury for good cause finds that a 60-day delay to provide
public notice is impracticable and contrary to the public interest.

Paperwork Reduction Act

The information collections associated with State, territory,
local, and Tribal government applications materials necessary to
receive Fiscal Recovery Funds (e.g., payment information collection and
acceptance of award terms) have been reviewed and approved by OMB
pursuant to the Paperwork Reduction Act (44 U.S.C. chapter 35) (PRA)
emergency processing procedures and assigned control number 1505-0271.
The information collections related to ongoing reporting requirements,
as discussed in this interim final rule, will be submitted to OMB for
emergency processing in the near future. Under the PRA, an agency may
not conduct or sponsor and a respondent is not required to respond to,
an information collection unless it displays a valid OMB control
number.
Estimates of hourly burden under this program are set forth in the
table below. Burden estimates below are preliminary.

--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Number of
Reporting respondents responses per Total responses Hours per response Total burden in Cost to respondent
(estimated) respondent hours ($48.80 per hour *)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Recipient Payment Form........ 5,050 1................. 5,050 .25 (15 minutes)..... 1,262.5 $61,610
Acceptance of Award Terms..... 5,050 1................. 5,050 .25 (15 minutes)..... 1,262.5 61,610
Title VI Assurances........... 5,050 1................. 5,050 .50 (30 minutes)..... 2,525 123,220
Quarterly Project and 5,050 4***.............. 20,200 25................... 505,000 24,644,000
Expenditure Report.
Annual Project and Expenditure TBD 1 per year........ [dagger] 20,000- 15................... 300,000-600,000 14,640,000-29,280,000
Report from NEUs. 40,000
Annual Recovery Plan 418 1 per year........ 418 100.................. 41,800 2,039,840
Performance report.
-------------------------------------------------------------------------------------------------------------------------
Total..................... (**) N/A............... 55,768-75,768 141.................. 851,850-1,151,850 41,570,280-56,210,280
--------------------------------------------------------------------------------------------------------------------------------------------------------
*Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, Accountants and Auditors, on the internet at https://www.bls.gov/ooh/business-and-financial/accountants-and-auditors.htm (visited March 28, 2020). Base wage of $33.89/hour increased by 44 percent to account for
fully loaded employer cost of employee compensation (benefits, etc.) for a fully loaded wage rate of $48.80.
**5,050-TBD.
***Per year after first year.
[dagger] (Estimate only).

Periodic reporting is required by section 602(c) of Section VI of
the Social Security Act and under the interim final rule.
As discussed in Section VIII of this SUPPLEMENTARY INFORMATION,
recipients of Fiscal Recovery Funds will be required to submit one
interim report and thereafter quarterly Project and Expenditure reports
until the end of the award period. Recipients must submit interim
reports to Treasury by August

[[Page 26819]]

31, 2021. The quarterly Project and Expenditure reports will include
financial data, information on contracts and subawards over $50,000,
types of projects funded, and other information regarding a recipient's
utilization of the award funds.
Nonentitlement unit recipients will be required to submit annual
Project and Expenditure reports until the end of the award period. The
initial annual Project and Expenditure report for Nonentitlement unit
recipients must be submitted to Treasury by October 31, 2021. The
subsequent annual reports must be submitted to Treasury by October 31
each year. States, territories, metropolitan cities, and counties with
a population that exceeds 250,000 residents will also be required to
submit an annual Recovery Plan Performance report to Treasury. The
Recovery Plan Performance report will include descriptions of the
projects funded and information on the performance indicators and
objectives of the award. Each annual Recovery Plan Performance report
must be posted on the public-facing website of the recipient. Treasury
will provide additional guidance and instructions on the all the
reporting requirements outlined above for the Fiscal Recovery Funds
program at a later date.
These and related periodic reporting requirements are under
consideration and will be submitted to OMB for approval under the PRA
emergency provisions in the near future.
Treasury invites comments on all aspects of the reporting and
recordkeeping requirements including: (a) Whether the collection of
information is necessary for the proper performance of the functions of
the agency, including whether the information has practical utility;
(b) the accuracy of the estimate of the burden of the collection of
information; (c) ways to enhance the quality, utility, and clarity of
the information to be collected; (d) ways to minimize the burden of the
collection of information; and (e) estimates of capital or start-up
costs and costs of operation, maintenance, and purchase of services to
provide information. Comments should be sent by the comment deadline to
the www.regulations.gov docket with a copy to the Office of Information
and Regulatory Affairs, U.S. Office of Management and Budget, 725 17th
Street NW, Washington, DC 20503; or email to
[email protected].

Regulatory Flexibility Analysis

The Regulatory Flexibility Act (RFA) generally requires that when
an agency issues a proposed rule, or a final rule pursuant to section
553(b) of the Administrative Procedure Act or another law, the agency
must prepare a regulatory flexibility analysis that meets the
requirements of the RFA and publish such analysis in the Federal
Register. 5 U.S.C. 603, 604.
Rules that are exempt from notice and comment under the APA are
also exempt from the RFA requirements, including the requirement to
conduct a regulatory flexibility analysis, when among other things the
agency for good cause finds that notice and public procedure are
impracticable, unnecessary, or contrary to the public interest. Since
this rule is exempt from the notice and comment requirements of the
APA, Treasury is not required to conduct a regulatory flexibility
analysis.

List of Subjects in 31 CFR Part 35

Executive compensation, Public health emergency, State and local
governments, Tribal governments.

For the reasons stated in the preamble, the Department of the
Treasury amends 31 CFR part 35 as follows:

PART 35--PANDEMIC RELIEF PROGRAMS

0
1. The authority citation for part 35 is revised to read as follows:

Authority: 42 U.S.C. 802(f); 42 U.S.C. 803(f); 31 U.S.C. 321;
Division N, Title V, Subtitle B, Pub. L. 116-260, 134 Stat. 1182;
Section 104A, Pub. L. 103-325, 108 Stat. 2160, as amended (12 U.S.C.
4701 et seq.); Pub. L. 117-2, 135 Stat. 4 (42 U.S.C. 802 et seq.).

0
2. Revise the part heading to read as set forth above.

0
3. Add subpart A to read as follows:

Subpart A--Coronavirus State and Local Fiscal Recovery Funds

Sec.
35.1 Purpose.
35.2 Applicability.
35.3 Definitions.
35.4 Reservation of authority, reporting.
35.5 Use of funds.
35.6 Eligible uses.
35.7 Pensions.
35.8 Tax.
35.9 Compliance with applicable laws.
35.10 Recoupment.
35.11 Payments to States.
35.12 Distributions to nonentitlement units of local government and
units of general local government.

Sec. 35.1 Purpose.

This subpart implements section 9901 of the American Rescue Plan
Act (Subtitle M of Title IX of Pub. L. 117-2), which amends Title VI of
the Social Security Act (42 U.S.C. 801 et seq.) by adding sections 602
and 603 to establish the Coronavirus State Fiscal Recovery Fund and
Coronavirus Local Fiscal Recovery Fund.

Sec. 35.2 Applicability.

This subpart applies to States, territories, Tribal governments,
metropolitan cities, nonentitlement units of local government,
counties, and units of general local government that accept a payment
or transfer of funds made under section 602 or 603 of the Social
Security Act.

Sec. 35.3 Definitions.

As used in this subpart:
Baseline means tax revenue of the recipient for its fiscal year
ending in 2019, adjusted for inflation in each reporting year using the
Bureau of Economic Analysis's Implicit Price Deflator for the gross
domestic product of the United States.
County means a county, parish, or other equivalent county division
(as defined by the Census Bureau).
Covered benefits include, but are not limited to, the costs of all
types of leave (vacation, family-related, sick, military, bereavement,
sabbatical, jury duty), employee insurance (health, life, dental,
vision), retirement (pensions, 401(k)), unemployment benefit plans
(Federal and State), workers' compensation insurance, and Federal
Insurance Contributions Act taxes (which includes Social Security and
Medicare taxes).
Covered change means a change in law, regulation, or administrative
interpretation. A change in law includes any final legislative or
regulatory action, a new or changed administrative interpretation, and
the phase-in or taking effect of any statute or rule if the phase-in or
taking effect was not prescribed prior to the start of the covered
period.
Covered period means, with respect to a State, Territory, or Tribal
government, the period that:
(1) Begins on March 3, 2021; and
(2) Ends on the last day of the fiscal year of such State,
Territory, or Tribal government in which all funds received by the
State, Territory, or Tribal government from a payment made under
section 602 or 603 of the Social Security Act have been expended or
returned to, or recovered by, the Secretary.
COVID-19 means the Coronavirus Disease 2019.
COVID-19 public health emergency means the period beginning on
January 27, 2020 and until the termination of the national emergency
concerning the COVID-19 outbreak declared pursuant to the National
Emergencies Act (50 U.S.C. 1601 et seq.).

[[Page 26820]]

Deposit means an extraordinary payment of an accrued, unfunded
liability. The term deposit does not refer to routine contributions
made by an employer to pension funds as part of the employer's
obligations related to payroll, such as either a pension contribution
consisting of a normal cost component related to current employees or a
component addressing the amortization of unfunded liabilities
calculated by reference to the employer's payroll costs.
Eligible employer means an employer of an eligible worker who
performs essential work.
Eligible workers means workers needed to maintain continuity of
operations of essential critical infrastructure sectors, including
health care; emergency response; sanitation, disinfection, and cleaning
work; maintenance work; grocery stores, restaurants, food production,
and food delivery; pharmacy; biomedical research; behavioral health
work; medical testing and diagnostics; home- and community-based health
care or assistance with activities of daily living; family or child
care; social services work; public health work; vital services to
Tribes; any work performed by an employee of a State, local, or Tribal
government; educational work, school nutrition work, and other work
required to operate a school facility; laundry work; elections work;
solid waste or hazardous materials management, response, and cleanup
work; work requiring physical interaction with patients; dental care
work; transportation and warehousing; work at hotel and commercial
lodging facilities that are used for COVID-19 mitigation and
containment; work in a mortuary; work in critical clinical research,
development, and testing necessary for COVID-19 response.
(1) With respect to a recipient that is a metropolitan city,
nonentitlement unit of local government, or county, workers in any
additional sectors as each chief executive officer of such recipient
may designate as critical to protect the health and well-being of the
residents of their metropolitan city, nonentitlement unit of local
government, or county; or
(2) With respect to a State, Territory, or Tribal government,
workers in any additional sectors as each Governor of a State or
Territory, or each Tribal government, may designate as critical to
protect the health and well-being of the residents of their State,
Territory, or Tribal government.
Essential work means work that:
(1) Is not performed while teleworking from a residence; and
(2) Involves:
(i) Regular in-person interactions with patients, the public, or
coworkers of the individual that is performing the work; or
(ii) Regular physical handling of items that were handled by, or
are to be handled by patients, the public, or coworkers of the
individual that is performing the work.
Funds means, with respect to a recipient, amounts provided to the
recipient pursuant to a payment made under section 602(b) or 603(b) of
the Social Security Act or transferred to the recipient pursuant to
section 603(c)(4) of the Social Security Act.
General revenue means money that is received from tax revenue,
current charges, and miscellaneous general revenue, excluding refunds
and other correcting transactions, proceeds from issuance of debt or
the sale of investments, agency or private trust transactions, and
intergovernmental transfers from the Federal Government, including
transfers made pursuant to section 9901 of the American Rescue Plan
Act. General revenue does not include revenues from utilities. Revenue
from Tribal business enterprises must be included in general revenue.
Intergovernmental transfers means money received from other
governments, including grants and shared taxes.
Metropolitan city has the meaning given that term in section
102(a)(4) of the Housing and Community Development Act of 1974 (42
U.S.C. 5302(a)(4)) and includes cities that relinquish or defer their
status as a metropolitan city for purposes of receiving allocations
under section 106 of such Act (42 U.S.C. 5306) for fiscal year 2021.
Net reduction in total spending is measured as the State or
Territory's total spending for a given reporting year excluding its
spending of funds, subtracted from its total spending for its fiscal
year ending in 2019, adjusted for inflation using the Bureau of
Economic Analysis's Implicit Price Deflator for the gross domestic
product of the United States.
Nonentitlement unit of local government means a ``city,'' as that
term is defined in section 102(a)(5) of the Housing and Community
Development Act of 1974 (42 U.S.C. 5302(a)(5)), that is not a
metropolitan city.
Nonprofit means a nonprofit organization that is exempt from
Federal income taxation and that is described in section 501(c)(3) of
the Internal Revenue Code.
Obligation means an order placed for property and services and
entering into contracts, subawards, and similar transactions that
require payment.
Pension fund means a defined benefit plan and does not include a
defined contribution plan.
Premium pay means an amount of up to $13 per hour that is paid to
an eligible worker, in addition to wages or remuneration the eligible
worker otherwise receives, for all work performed by the eligible
worker during the COVID-19 public health emergency. Such amount may not
exceed $25,000 with respect to any single eligible worker. Premium pay
will be considered to be in addition to wages or remuneration the
eligible worker otherwise receives if, as measured on an hourly rate,
the premium pay is:
(1) With regard to work that the eligible worker previously
performed, pay and remuneration equal to the sum of all wages and
remuneration previously received plus up to $13 per hour with no
reduction, substitution, offset, or other diminishment of the eligible
worker's previous, current, or prospective wages or remuneration; or
(2) With regard to work that the eligible worker continues to
perform, pay of up to $13 that is in addition to the eligible worker's
regular rate of wages or remuneration, with no reduction, substitution,
offset, or other diminishment of the workers' current and prospective
wages or remuneration.
Qualified census tract has the same meaning given in 26 U.S.C.
42(d)(5)(B)(ii)(I).
Recipient means a State, Territory, Tribal government, metropolitan
city, nonentitlement unit of local government, county, or unit of
general local government that receives a payment made under section
602(b) or 603(b) of the Social Security Act or transfer pursuant to
section 603(c)(4) of the Social Security Act.
Reporting year means a single year or partial year within the
covered period, aligned to the current fiscal year of the State or
Territory during the covered period.
Secretary means the Secretary of the Treasury.
State means each of the 50 States and the District of Columbia.
Small business means a business concern or other organization that:
(1) Has no more than 500 employees, or if applicable, the size
standard in number of employees established by the Administrator of the
Small Business Administration for the industry in which the business
concern or organization operates; and
(2) Is a small business concern as defined in section 3 of the
Small Business Act (15 U.S.C. 632).

[[Page 26821]]

Tax revenue means revenue received from a compulsory contribution
that is exacted by a government for public purposes excluding refunds
and corrections and, for purposes of Sec. 35.8, intergovernmental
transfers. Tax revenue does not include payments for a special
privilege granted or service rendered, employee or employer assessments
and contributions to finance retirement and social insurance trust
systems, or special assessments to pay for capital improvements.
Territory means the Commonwealth of Puerto Rico, the United States
Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands,
or American Samoa.
Tribal enterprise means a business concern:
(1) That is wholly owned by one or more Tribal governments, or by a
corporation that is wholly owned by one or more Tribal governments; or
(2) That is owned in part by one or more Tribal governments, or by
a corporation that is wholly owned by one or more Tribal governments,
if all other owners are either United States citizens or small business
concerns, as these terms are used and consistent with the definitions
in 15 U.S.C. 657a(b)(2)(D).
Tribal government means the recognized governing body of any Indian
or Alaska Native tribe, band, nation, pueblo, village, community,
component band, or component reservation, individually identified
(including parenthetically) in the list published by the Bureau of
Indian Affairs on January 29, 2021, pursuant to section 104 of the
Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5131).
Unemployment rate means the U-3 unemployment rate provided by the
Bureau of Labor Statistics as part of the Local Area Unemployment
Statistics program, measured as total unemployment as a percentage of
the civilian labor force.
Unemployment trust fund means an unemployment trust fund
established under section 904 of the Social Security Act (42 U.S.C.
1104).
Unit of general local government has the meaning given to that term
in section 102(a)(1) of the Housing and Community Development Act of
1974 (42 U.S.C. 5302(a)(1)).
Unserved and underserved households or businesses means one or more
households or businesses that are not currently served by a wireline
connection that reliably delivers at least 25 Mbps download speed and 3
Mbps of upload speed.

Sec. 35.4 Reservation of authority, reporting.

(a) Reservation of authority. Nothing in this subpart shall limit
the authority of the Secretary to take action to enforce conditions or
violations of law, including actions necessary to prevent evasions of
this subpart.
(b) Extensions or accelerations of timing. The Secretary may extend
or accelerate any deadline or compliance date of this subpart,
including reporting requirements that implement this subpart, if the
Secretary determines that such extension or acceleration is
appropriate. In determining whether an extension or acceleration is
appropriate, the Secretary will consider the period of time that would
be extended or accelerated and how the modified timeline would
facilitate compliance with this subpart.
(c) Reporting and requests for other information. During the
covered period, recipients shall provide to the Secretary periodic
reports providing detailed accounting of the uses of funds, all
modifications to a State or Territory's tax revenue sources, and such
other information as the Secretary may require for the administration
of this section. In addition to regular reporting requirements, the
Secretary may request other additional information as may be necessary
or appropriate, including as may be necessary to prevent evasions of
the requirements of this subpart. False statements or claims made to
the Secretary may result in criminal, civil, or administrative
sanctions, including fines, imprisonment, civil damages and penalties,
debarment from participating in Federal awards or contracts, and/or any
other remedy available by law.

Sec. 35.5 Use of funds.

(a) In general. A recipient may only use funds to cover costs
incurred during the period beginning March 3, 2021, and ending December
31, 2024, for one or more of the purposes enumerated in sections
602(c)(1) and 603(c)(1) of the Social Security Act, as applicable,
including those enumerated in section Sec. 35.6, subject to the
restrictions set forth in sections 602(c)(2) and 603(c)(2) of the
Social Security Act, as applicable.
(b) Costs incurred. A cost shall be considered to have been
incurred for purposes of paragraph (a) of this section if the recipient
has incurred an obligation with respect to such cost by December 31,
2024.
(c) Return of funds. A recipient must return any funds not
obligated by December 31, 2024, and any funds not expended to cover
such obligations by December 31, 2026.

Sec. 35.6 Eligible uses.

(a) In general. Subject to Sec. Sec. 35.7 and 35.8, a recipient
may use funds for one or more of the purposes described in paragraphs
(b) through (e) of this section
(b) Responding to the public health emergency or its negative
economic impacts. A recipient may use funds to respond to the public
health emergency or its negative economic impacts, including for one or
more of the following purposes:
(1) COVID-19 response and prevention. Expenditures for the
mitigation and prevention of COVID-19, including:
(i) Expenses related to COVID-19 vaccination programs and sites,
including staffing, acquisition of equipment or supplies, facilities
costs, and information technology or other administrative expenses;
(ii) COVID-19-related expenses of public hospitals, clinics, and
similar facilities;
(iii) COVID-19 related expenses in congregate living facilities,
including skilled nursing facilities, long-term care facilities,
incarceration settings, homeless shelters, residential foster care
facilities, residential behavioral health treatment, and other group
living facilities;
(iv) Expenses of establishing temporary public medical facilities
and other measures to increase COVID-19 treatment capacity, including
related construction costs and other capital investments in public
facilities to meet COVID-19-related operational needs;
(v) Expenses of establishing temporary public medical facilities
and other measures to increase COVID-19 treatment capacity, including
related construction costs and other capital investments in public
facilities to meet COVID-19-related operational needs;
(vi) Costs of providing COVID-19 testing and monitoring, contact
tracing, and monitoring of case trends and genomic sequencing for
variants;
(vii) Emergency medical response expenses, including emergency
medical transportation, related to COVID-19;
(viii) Expenses for establishing and operating public telemedicine
capabilities for COVID-19-related treatment;
(ix) Expenses for communication related to COVID-19 vaccination
programs and communication or enforcement by recipients of public
health orders related to COVID-19;
(x) Expenses for acquisition and distribution of medical and
protective supplies, including sanitizing products and personal
protective equipment;
(xi) Expenses for disinfection of public areas and other facilities
in

[[Page 26822]]

response to the COVID-19 public health emergency;
(xii) Expenses for technical assistance to local authorities or
other entities on mitigation of COVID-19-related threats to public
health and safety;
(xiii) Expenses for quarantining or isolation of individuals;
(xiv) Expenses of providing paid sick and paid family and medical
leave to public employees to enable compliance with COVID-19 public
health precautions;
(xv) Expenses for treatment of the long-term symptoms or effects of
COVID-19, including post-intensive care syndrome;
(xvi) Expenses for the improvement of ventilation systems in
congregate settings, public health facilities, or other public
facilities;
(xvii) Expenses related to establishing or enhancing public health
data systems; and
(xviii) Mental health treatment, substance misuse treatment, and
other behavioral health services.
(2) Public health and safety staff. Payroll and covered benefit
expenses for public safety, public health, health care, human services,
and similar employees to the extent that the employee's time is spent
mitigating or responding to the COVID-19 public health emergency.
(3) Hiring State and local government staff. Payroll, covered
benefit, and other costs associated with the recipient increasing the
number of its employees up to the number of employees that it employed
on January 27, 2020.
(4) Assistance to unemployed workers. Assistance, including job
training, for individuals who want and are available for work,
including those who have looked for work sometime in the past 12 months
or who are employed part time but who want and are available for full-
time work.
(5) Contributions to State unemployment insurance trust funds.
Contributions to an unemployment trust fund up to the level required to
restore the unemployment trust fund to its balance on January 27, 2020
or to pay back advances received under Title XII of the Social Security
Act (42 U.S.C. 1321) for the payment of benefits between January 27,
2020 and May 17, 2021.
(6) Small businesses. Assistance to small businesses, including
loans, grants, in-kind assistance, technical assistance or other
services, that responds to the negative economic impacts of the COVID-
19 public health emergency.
(7) Nonprofits. Assistance to nonprofit organizations, including
loans, grants, in-kind assistance, technical assistance or other
services, that responds to the negative economic impacts of the COVID-
19 public health emergency.
(8) Assistance to households. Assistance programs, including cash
assistance programs, that respond to the COVID-19 public health
emergency.
(9) Aid to impacted industries. Aid to tourism, travel,
hospitality, and other impacted industries that responds to the
negative economic impacts of the COVID-19 public health emergency.
(10) Expenses to improve efficacy of public health or economic
relief programs. Administrative costs associated with the recipient's
COVID-19 public health emergency assistance programs, including
services responding to the COVID-19 public health emergency or its
negative economic impacts, that are not federally funded.
(11) Survivor's benefits. Benefits for the surviving family members
of individuals who have died from COVID-19, including cash assistance
to widows, widowers, or dependents of individuals who died of COVID-19.
(12) Disproportionately impacted populations and communities. A
program, service, or other assistance that is provided in a qualified
census tract, that is provided to households and populations living in
a qualified census tract, that is provided by a Tribal government, or
that is provided to other households, businesses, or populations
disproportionately impacted by the COVID-19 public health emergency,
such as:
(i) Programs or services that facilitate access to health and
social services, including:
(A) Assistance accessing or applying for public benefits or
services;
(B) Remediation of lead paint or other lead hazards; and
(C) Community violence intervention programs;
(ii) Programs or services that address housing insecurity, lack of
affordable housing, or homelessness, including:
(A) Supportive housing or other programs or services to improve
access to stable, affordable housing among individuals who are
homeless;
(B) Development of affordable housing to increase supply of
affordable and high-quality living units; and
(C) Housing vouchers and assistance relocating to neighborhoods
with higher levels of economic opportunity and to reduce concentrated
areas of low economic opportunity;
(iii) Programs or services that address or mitigate the impacts of
the COVID-19 public health emergency on education, including:
(A) New or expanded early learning services;
(B) Assistance to high-poverty school districts to advance
equitable funding across districts and geographies; and
(C) Educational and evidence-based services to address the
academic, social, emotional, and mental health needs of students; and
(iv) Programs or services that address or mitigate the impacts of
the COVID-19 public health emergency on childhood health or welfare,
including:
(A) New or expanded childcare;
(B) Programs to provide home visits by health professionals, parent
educators, and social service professionals to individuals with young
children to provide education and assistance for economic support,
health needs, or child development; and
(C) Services for child welfare-involved families and foster youth
to provide support and education on child development, positive
parenting, coping skills, or recovery for mental health and substance
use.
(c) Providing premium pay to eligible workers. A recipient may use
funds to provide premium pay to eligible workers of the recipient who
perform essential work or to provide grants to eligible employers,
provided that any premium pay or grants provided under this paragraph
(c) must respond to eligible workers performing essential work during
the COVID-19 public health emergency. A recipient uses premium pay or
grants provided under this paragraph (c) to respond to eligible workers
performing essential work during the COVID-19 public health emergency
if it prioritizes low- and moderate-income persons. The recipient must
provide, whether for themselves or on behalf of a grantee, a written
justification to the Secretary of how the premium pay or grant provided
under this paragraph (c) responds to eligible workers performing
essential work if the premium pay or grant would increase an eligible
worker's total wages and remuneration above 150 percent of such
eligible worker's residing State's average annual wage for all
occupations or their residing county's average annual wage, whichever
is higher.
(d) Providing government services. For the provision of government
services to the extent of a reduction in the recipient's general
revenue, calculated according to paragraphs (d)(1) and (2) of this
section.
(1) Frequency. A recipient must calculate the reduction in its
general revenue using information as-of December 31, 2020, December 31,
2021, December 31, 2022, and December 31, 2023 (each, a calculation
date) and following each calculation date.

[[Page 26823]]

(2) Calculation. A reduction in a recipient's general revenue
equals:
[GRAPHIC] [TIFF OMITTED] TR17MY21.003

Where:

Base Year Revenue is the recipient's general revenue for the most
recent full fiscal year prior to the COVD-19 public health
emergency;
Growth Adjustment is equal to the greater of 4.1 percent (or 0.041)
and the recipient's average annual revenue growth over the three
full fiscal years prior to the COVID-19 public health emergency.
n equals the number of months elapsed from the end of the base year
to the calculation date.
Actual General Revenue is a recipient's actual general revenue
collected during 12-month period ending on each calculation date;
Subscript t denotes the specific calculation date.

(e) To make necessary investments in infrastructure. A recipient
may use funds to make investments in:
(1) Clean Water State Revolving Fund and Drinking Water State
Revolving Fund investments. Projects or activities of the type that
would be eligible under section 603(c) of the Federal Water Pollution
Control Act (33 U.S.C. 1383(c)) or section 1452 of the Safe Drinking
Water Act (42 U.S.C. 300j-12); or,
(2) Broadband. Broadband infrastructure that is designed to provide
service to unserved or underserved households and businesses and that
is designed to, upon completion:
(i) Reliably meet or exceed symmetrical 100 Mbps download speed and
upload speeds; or
(ii) In cases where it is not practicable, because of the excessive
cost of the project or geography or topography of the area to be served
by the project, to provide service meeting the standards set forth in
paragraph (e)(2)(i) of this section:
(A) Reliably meet or exceed 100 Mbps download speed and between at
least 20 Mbps and 100 Mbps upload speed; and
(B) Be scalable to a minimum of 100 Mbps download speed and 100
Mbps upload speed.

Sec. 35.7 Pensions.

A recipient may not use funds for deposit into any pension fund.

Sec. 35.8 Tax.

(a) Restriction. A State or Territory shall not use funds to either
directly or indirectly offset a reduction in the net tax revenue of the
State or Territory resulting from a covered change during the covered
period.
(b) Violation. Treasury will consider a State or Territory to have
used funds to offset a reduction in net tax revenue if, during a
reporting year:
(1) Covered change. The State or Territory has made a covered
change that, either based on a reasonable statistical methodology to
isolate the impact of the covered change in actual revenue or based on
projections that use reasonable assumptions and do not incorporate the
effects of macroeconomic growth to reduce or increase the projected
impact of the covered change, the State or Territory assesses has had
or predicts to have the effect of reducing tax revenue relative to
current law;
(2) Exceeds the de minimis threshold. The aggregate amount of the
measured or predicted reductions in tax revenue caused by covered
changes identified under paragraph (b)(1) of this section, in the
aggregate, exceeds 1 percent of the State's or Territory's baseline;
(3) Reduction in net tax revenue. The State or Territory reports a
reduction in net tax revenue, measured as the difference between actual
tax revenue and the State's or Territory's baseline, each measured as
of the end of the reporting year; and
(4) Consideration of other changes. The aggregate amount of
measured or predicted reductions in tax revenue caused by covered
changes is greater than the sum of the following, in each case, as
calculated for the reporting year:
(i) The aggregate amount of the expected increases in tax revenue
caused by one or more covered changes that, either based on a
reasonable statistical methodology to isolate the impact of the covered
change in actual revenue or based on projections that use reasonable
assumptions and do not incorporate the effects of macroeconomic growth
to reduce or increase the projected impact of the covered change, the
State or Territory assesses has had or predicts to have the effect of
increasing tax revenue; and
(ii) Reductions in spending, up to the amount of the State's or
Territory's net reduction in total spending, that are in:
(A) Departments, agencies, or authorities in which the State or
Territory is not using funds; and
(B) Departments, agencies, or authorities in which the State or
Territory is using funds, in an amount equal to the value of the
spending cuts in those departments, agencies, or authorities, minus
funds used.
(c) Amount and revenue reduction cap. If a State or Territory is
considered to be in violation pursuant to paragraph (b) of this
section, the amount used in violation of paragraph (a) of this section
is equal to the lesser of:
(1) The reduction in net tax revenue of the State or Territory for
the reporting year, measured as the difference between the State's or
Territory's baseline and its actual tax revenue, each measured as of
the end of the reporting year; and,
(2) The aggregate amount of the reductions in tax revenues caused
by covered changes identified in paragraph (b)(1) of this section,
minus the sum of the amounts in identified in paragraphs (b)(4)(i) and
(ii).

Sec. 35.9 Compliance with applicable laws.

A recipient must comply with all other applicable Federal statutes,
regulations, and Executive orders, and a recipient shall provide for
compliance with the American Rescue Plan Act, this subpart, and any
interpretive guidance by other parties in any agreements it enters into
with other parties relating to these funds.

Sec. 35.10 Recoupment.

(a) Identification of violations--(1) In general. Any amount used
in violation of Sec. 35.5, Sec. 35.6, or Sec. 35.7 may be identified
at any time prior to December 31, 2026.
(2) Annual reporting of amounts of violations. On an annual basis,
a recipient that is a State or Territory must calculate and report any
amounts used in violation of Sec. 35.8.
(b) Calculation of amounts subject to recoupment--(1) In general.
Except as provided in paragraph (b)(2) of this section, Treasury will
calculate any amounts subject to recoupment resulting from a violation
of Sec. 35.5, Sec. 35.6, or Sec. 35.7 as the amounts used in
violation of such restrictions.
(2) Violations of Sec. 35.8. Treasury will calculate any amounts
subject to recoupment resulting from a violation of Sec. 35.8, equal
to the lesser of:
(i) The amount set forth in Sec. 35.8(c); and,

[[Page 26824]]

(ii) The amount of funds received by such recipient.
(c) Notice. If Treasury calculates an amount subject to recoupment
under paragraph (b) of this section, Treasury will provide the
recipient a written notice of the amount subject to recoupment along
with an explanation of such amounts.
(d) Request for reconsideration. Unless Treasury extends the time
period, within 60 calendar days of receipt of a notice of recoupment
provided under paragraph (c) of this section, a recipient may submit a
written request to Treasury requesting reconsideration of any amounts
subject to recoupment under paragraph (b) of this section. To request
reconsideration of any amounts subject to recoupment, a recipient must
submit to Treasury a written request that includes:
(1) An explanation of why the recipient believes all or some of the
amount should not be subject to recoupment; and
(2) A discussion of supporting reasons, along with any additional
information.
(e) Final amount subject to recoupment. Unless Treasury extends the
time period, within 60 calendar days of receipt of the recipient's
request for reconsideration provided pursuant to paragraph (d) of this
section, the recipient will be notified of the Secretary's decision to
affirm, withdraw, or modify the notice of recoupment. Such notification
will include an explanation of the decision, including responses to the
recipient's supporting reasons and consideration of additional
information provided.
(f) Repayment of funds. Unless Treasury extends the time period, a
recipient shall repay to the Secretary any amounts subject to
recoupment in accordance with instructions provided by Treasury:
(1) Within 120 calendar days of receipt of the notice of recoupment
provided under paragraph (c) of this section, in the case of a
recipient that does not submit a request for reconsideration in
accordance with the requirements of paragraph (d) of this section; or
(2) Within 120 calendar days of receipt of the Secretary's decision
under paragraph (e) of this section, in the case of a recipient that
submits a request for reconsideration in accordance with the
requirements of paragraph (d) of this section.

Sec. 35.11 Payments to States.

(a) In general. With respect to any State or Territory that has an
unemployment rate as of the date that it submits an initial
certification for payment of funds pursuant to section 602(d)(1) of the
Social Security Act that is less than two percentage points above its
unemployment rate in February 2020, the Secretary will withhold 50
percent of the amount of funds allocated under section 602(b) of the
Social Security Act to such State or territory until the date that is
twelve months from the date such initial certification is provided to
the Secretary.
(b) Payment of withheld amount. In order to receive the amount
withheld under paragraph (a) of this section, the State or Territory
must submit to the Secretary at least 30 days prior to the date
referenced in paragraph (a) the following information:
(1) A certification, in the form provided by the Secretary, that
such State or Territory requires the payment to carry out the
activities specified in section 602(c) of the Social Security Act and
will use the payment in compliance with section 602(c) of the Social
Security Act; and,
(2) Any reports required to be filed by that date pursuant to this
subpart that have not yet been filed.

Sec. 35.12 Distributions to nonentitlement units of local government
and units of general local government.

(a) Nonentitlement units of local government. Each State or
Territory that receives a payment from Treasury pursuant to section
603(b)(2)(B) of the Social Security Act shall distribute the amount of
the payment to nonentitlement units of government in such State or
Territory in accordance with the requirements set forth in section
603(b)(2)(C) of the Social Security Act and without offsetting any debt
owed by such nonentitlement units of local governments against such
payments.
(b) Budget cap. A State or Territory may not make a payment to a
nonentitlement unit of local government pursuant to section
603(b)(2)(C) of the Social Security Act and paragraph (a) of this
section in excess of the amount equal to 75 percent of the most recent
budget for the nonentitlement unit of local government as of January
27, 2020. A State or Territory shall permit a nonentitlement unit of
local government without a formal budget as of January 27, 2020, to
provide a certification from an authorized officer of the
nonentitlement unit of local government of its most recent annual
expenditures as of January 27, 2020, and a State or Territory may rely
on such certification for purposes of complying with this paragraph
(b).
(c) Units of general local government. Each State or Territory that
receives a payment from Treasury pursuant to section 603(b)(3)(B)(ii)
of the Social Security Act, in the case of an amount to be paid to a
county that is not a unit of general local government, shall distribute
the amount of the payment to units of general local government within
such county in accordance with the requirements set forth in section
603(b)(3)(B)(ii) of the Social Security Act and without offsetting any
debt owed by such units of general local government against such
payments.
(d) Additional conditions. A State or Territory may not place
additional conditions or requirements on distributions to
nonentitlement units of local government or units of general local
government beyond those required by section 603 of the Social Security
Act or this subpart.

Laurie Schaffer,
Acting General Counsel.
[FR Doc. 2021-10283 Filed 5-13-21; 11:15 am]
BILLING CODE 4810-AK-P

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