Sec. 1001 Emergency relief and taxpayer protections
Section 4003 of the CARES Act (15 U.S.C. 9061) is amended in subsection (e) by striking “Amounts” and inserting “Notwithstanding any other provision of law, amounts”.
Division A — Liability protections, continued relief for small businesses and workers, public health enhancements, and educational support
A Liability protections, continued relief for small businesses and workers, public health enhancements, and educational support
I Sunsets and offsets
Sec. 1002 Direct appropriation
Section 4027 of the CARES Act (15 U.S.C. 9063) is amended by adding at the end the following:
“(d) Reduction—The appropriation made under this section shall be reduced, on January 19, 2021, by an amount equal to the difference between $454,000,000,000 and the aggregate amount of loans, loan guarantees, and other investments that the Secretary has made or committed to make under section 4003(b)(4) as of such date.”
Sec. 1003 Termination of authority
Section 4029 of the CARES Act (15 U.S.C. 9063) is amended by adding at the end the following:
“(c) Federal reserve programs or facilities
“(1) In general—Notwithstanding any other provision of law, after January 4, 2021, the Board of Governors of the Federal Reserve System and the Federal Reserve banks shall not make any loan, purchase any obligation, asset, security, or other interest, or make any extension of credit through any program or facility established under section 13(3) of the Federal Reserve Act (12 U.S.C. 343(3)) in which the Secretary made a loan, loan guarantee, or other investment using funds appropriated under section 4027, other than any such loan, purchase, or extension of credit for which a complete application was submitted on or before January 4, 2021, provided that such loan, purchase, or extension of credit is made on or before January 18, 2021, and under the terms and conditions of the program or facility as in effect on the date the complete application was submitted.
“(2) No modification—On or after January 19, 2021, the Board of Governors of the Federal Reserve System and the Federal Reserve banks shall not modify the terms and conditions of any program or facility established under section 13(3) of the Federal Reserve Act (12 U.S.C. 343(3)) in which the Secretary made a loan, loan guarantee, or other investment using funds appropriated under section 4027, but may modify or restructure a loan, obligation, asset, security, or other interest, or extension of credit made or purchased through any such program or facility provided that—
“(A) the loan, obligation, asset, security, or other interest, or extension of credit is for an eligible business, including an eligible nonprofit organization; and
“(B) the modification or restructuring relates to a single and specific eligible business, including an eligible nonprofit organization; and
“(C) the modification or restructuring is necessary to minimize costs to taxpayers that could arise from a default on the loan, obligation, asset, security, or other interest, or extension of credit.”
Sec. 1004 Rescissions
PPP and subsidy for certain loan payments— Of the unobligated balances in the appropriations account under the heading “Small Business Administration—Business Loans Program Account, CARES Act” as of the day before the date of enactment of this Act, effective on the date of enactment of this Act $146,000,000,000 shall be rescinded and deposited into the general fund of the Treasury.
in subsection (a), by striking “$500,000,000,000” and inserting “$296,000,000,000”; and
in subsection (b)(4), in the matter preceding subparagraph (A), by striking “$454,000,000,000” and inserting “$250,000,000,000”.
II Coronavirus liability relief
Sec. 2001 Short title
This title may be cited as the “Safeguarding America’s Frontline Employees To Offer Work Opportunities Required to Kickstart the Economy Act” or the “SAFE TO WORK Act”.
Sec. 2002 Findings and purposes
Findings— Congress finds the following:
The SARS–CoV–2 virus that originated in China and causes the disease COVID–19 has caused untold misery and devastation throughout the world, including in the United States.
For months, frontline health care workers and health care facilities have fought the virus with courage and resolve. They did so at first with very little information about how to treat the virus and developed strategies to save lives of the people of the United States in real time. They risked their personal health and wellbeing to protect and treat their patients.
Businesses in the United States kicked into action to produce and procure personal protective equipment, such as masks, gloves, face shields, and hand sanitizer, and other necessary medical supplies, such as ventilators, at unprecedented rates.
To halt the spread of the disease, State and local governments took drastic measures. They shut down small and large businesses, schools, colleges and universities, religious, philanthropic and other nonprofit institutions, and local government agencies. They ordered people to remain in their homes.
This standstill was needed to slow the spread of the virus. But it devastated the economy of the United States. The sum of hundreds of local-level and State-level decisions to close nearly every space in which people might gather brought interstate commerce nearly to a halt.
This halt led to the loss of millions of jobs. These lost jobs were not a natural consequence of the economic environment, but rather the result of a drastic, though temporary, response to the unprecedented nature of this global pandemic.
Congress passed a series of statutes to address the health care and economic crises—the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (Public Law 116–123; 134 Stat. 146), the Families First Coronavirus Response Act (Public Law 116–127; 134 Stat. 178), the Coronavirus Aid, Relief, and Economic Security Act or the CARES Act (Public Law 116–136), and the Paycheck Protection Program and Health Care Enhancement Act (Public Law 116–139; 134 Stat. 620). In these laws Congress exercised its power under the Commerce and Spending Clauses of the Constitution of the United States to direct trillions of taxpayer dollars toward efforts to aid workers, businesses, State and local governments, health care workers, and patients.
This legislation provided short-term insulation from the worst of the economic storm, but these laws alone cannot protect the United States from further devastation. Only reopening the economy so that workers can get back to work and students can get back to school can accomplish that goal.
The Constitution of the United States specifically enumerates the legislative powers of Congress. One of those powers is the regulation of interstate commerce. The Government is not a substitute for the economy, but it has the authority and the duty to act when interstate commerce is threatened and damaged. As applied to the present crisis, Congress can deploy its power over interstate commerce to promote a prudent reopening of businesses and other organizations that serve as the foundation and backbone of the national economy and of commerce among the States. These include small and large businesses, schools (which are substantial employers in their own right and provide necessary services to enable parents and other caregivers to return to work), colleges and universities (which are substantial employers and supply the interstate market for higher-education services), religious, philanthropic and other nonprofit institutions (which are substantial employers and provide necessary services to their communities), and local government agencies.
Congress must also ensure that the Nation’s health care workers and health care facilities are able to act fully to defeat the virus.
Congress must also safeguard its investment of taxpayer dollars under the CARES Act and other coronavirus legislation. Congress must ensure that those funds are used to help businesses and workers survive and recover from the economic crisis, and to help health care workers and health care facilities defeat the virus. CARES Act funds cannot be diverted from these important purposes to line the pockets of the trial bar.
One of the chief impediments to the continued flow of interstate commerce as this public-health crisis has unfolded is the risk of litigation. Small and large businesses, schools, colleges and universities, religious, philanthropic and other nonprofit institutions, and local government agencies confront the risk of a tidal wave of lawsuits accusing them of exposing employees, customers, students, and worshipers to coronavirus. Health care workers face the threat of lawsuits arising from their efforts to fight the virus.
They confront this litigation risk even as they work tirelessly to comply with the coronavirus guidance, rules, and regulations issued by local governments, State governments, and the Federal Government. They confront this risk notwithstanding equipment and staffing shortages. And they confront this risk while also grappling with constantly changing information on how best to protect employees, customers, students, and worshipers from the virus, and how best to treat it.
These lawsuits pose a substantial risk to interstate commerce because they threaten to keep small and large businesses, schools, colleges and universities, religious, philanthropic and other nonprofit institutions, and local government agencies from reopening for fear of expensive litigation that might prove to be meritless. These lawsuits further threaten to undermine the Nation’s fight against the virus by exposing our health care workers and health care facilities to liability for difficult medical decisions they have made under trying and uncertain circumstances.
These lawsuits also risk diverting taxpayer money provided under the CARES Act and other coronavirus legislation from its intended purposes to the pockets of opportunistic trial lawyers.
This risk is not purely local. It is necessarily national in scale. A patchwork of local and State rules governing liability in coronavirus-related lawsuits creates tremendous unpredictability for everyone participating in interstate commerce and acts as a significant drag on national recovery. The aggregation of each individual potential liability risk poses a substantial and unprecedented threat to interstate commerce.
The accumulated economic risks for these potential defendants directly and substantially affects interstate commerce. Individuals and entities potentially subject to coronavirus-related liability will structure their decisionmaking to avoid that liability. Small and large businesses, schools, colleges and universities, religious, philanthropic and other nonprofit institutions, and local government agencies may decline to reopen because of the risk of litigation. They may limit their output or engagement with customers and communities to avoid the risk of litigation. These individual economic decisions substantially affect interstate commerce because, as a whole, they will prevent the free and fair exchange of goods and services across State lines. Such economic activity that, individually and in the aggregate, substantially affects interstate commerce is precisely the sort of conduct that should be subject to congressional regulation.
Lawsuits against health care workers and facilities pose a similarly dangerous risk to interstate commerce. Interstate commerce will not truly rebound from this crisis until the virus is defeated, and that will not happen unless health care workers and facilities are free to combat vigorously the virus and treat patients with coronavirus and those otherwise impacted by the response to coronavirus.
Subjecting health care workers and facilities to onerous litigation even as they have done their level best to combat a virus about which very little was known when it arrived in the United States would divert important health care resources from hospitals and providers to courtrooms.
Such a diversion would substantially affect interstate commerce by degrading the national capacity for combating the virus and saving patients, thereby substantially elongating the period before interstate commerce could fully re-engage.
Congress also has the authority to determine the jurisdiction of the courts of the United States, to set the standards for causes of action they can hear, and to establish the rules by which those causes of action should proceed. Congress therefore must act to set rules governing liability in coronavirus-related lawsuits.
These rules necessarily must be temporary and carefully tailored to the interstate crisis caused by the coronavirus pandemic. They must extend no further than necessary to meet this uniquely national crisis for which a patchwork of State and local tort laws are ill-suited.
Because of the national scope of the economic and health care dangers posed by the risks of coronavirus-related lawsuits, establishing temporary rules governing liability for certain coronavirus-related tort claims is a necessary and proper means of carrying into execution Congress’s power to regulate commerce among the several States.
Because Congress must safeguard the investment of taxpayer dollars it made in the CARES Act and other coronavirus legislation, and ensure that they are used for their intended purposes and not diverted for other purposes, establishing temporary rules governing liability for certain coronavirus-related tort claims is a necessary and proper means of carrying into execution Congress’s power to provide for the general welfare of the United States.
Purposes— Pursuant to the powers delegated to Congress by article I, section 8, clauses 1, 3, 9, and 18, and article III, section 2, clause 1 of the Constitution of the United States, the purposes of this title are to—
establish necessary and consistent standards for litigating certain claims specific to the unique coronavirus pandemic;
prevent the overburdening of the court systems with undue litigation;
encourage planning, care, and appropriate risk management by small and large businesses, schools, colleges and universities, religious, philanthropic and other nonprofit institutions, local government agencies, and health care providers;
ensure that the Nation’s recovery from the coronavirus economic crisis is not burdened or slowed by the substantial risk of litigation;
prevent litigation brought to extract settlements and enrich trial lawyers rather than vindicate meritorious claims;
protect interstate commerce from the burdens of potentially meritless litigation;
ensure the economic recovery proceeds without artificial and unnecessary delay;
protect the interests of the taxpayers by ensuring that emergency taxpayer support continues to aid businesses, workers, and health care providers rather than enrich trial lawyers; and
protect the highest and best ideals of the national economy, so businesses can produce and serve their customers, workers can work, teachers can teach, students can learn, and believers can worship.
Sec. 2003 Definitions
In this title:
Applicable government standards and guidance— The term applicable government standards and guidance means—
any mandatory standards or regulations specifically concerning the prevention or mitigation of the transmission of coronavirus issued by the Federal Government, or a State or local government with jurisdiction over an individual or entity, whether provided by executive, judicial, or legislative order; and
with respect to an individual or entity that, at the time of the actual, alleged, feared, or potential for exposure to coronavirus is not subject to any mandatory standards or regulations described in subparagraph (A), any guidance, standards, or regulations specifically concerning the prevention or mitigation of the transmission of coronavirus issued by the Federal Government, or a State or local government with jurisdiction over the individual or entity.
Businesses, services, activities, or accommodations— The term businesses, services, activities, or accommodations means any act by an individual or entity, irrespective of whether the act is carried on for profit, that is interstate or foreign commerce, that involves persons or things in interstate or foreign commerce, that involves the channels or instrumentalities of interstate or foreign commerce, that substantially affects interstate or foreign commerce, or that is otherwise an act subject to regulation by Congress as necessary and proper to carry into execution Congress’s powers to regulate interstate or foreign commerce or to spend funds for the general welfare.
Coronavirus— The term coronavirus means any disease, health condition, or threat of harm caused by the SARS–CoV–2 virus or a virus mutating therefrom.
Coronavirus exposure action—
In general— The term coronavirus exposure action means a civil action—
brought by a person who suffered personal injury or is at risk of suffering personal injury, or a representative of a person who suffered personal injury or is at risk of suffering personal injury;
brought against an individual or entity engaged in businesses, services, activities, or accommodations; and
alleging that an actual, alleged, feared, or potential for exposure to coronavirus caused the personal injury or risk of personal injury, that—
occurred in the course of the businesses, services, activities, or accommodations of the individual or entity; and
occurred—
on or after December 1, 2019; and
before the later of—
October 1, 2024; or
the date on which there is no declaration by the Secretary of Health and Human Services under section 319F–3(b) of the Public Health Service Act (42 U.S.C. 247d–6d(b)) (relating to medical countermeasures) that is in effect with respect to coronavirus, including the Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID–19 (85 Fed. Reg. 15198 ) issued by the Secretary of Health and Human Services on March 17, 2020.
Exclusions— The term coronavirus exposure action does not include—
a criminal, civil, or administrative enforcement action brought by the Federal Government or any State, local, or Tribal government; or
a claim alleging intentional discrimination on the basis of race, color, national origin, religion, sex (including pregnancy), disability, genetic information, or age.
Coronavirus-related action— The term coronavirus-related action means a coronavirus exposure action or a coronavirus-related medical liability action.
Coronavirus-related health care services— The term coronavirus-related health care services means services provided by a health care provider, regardless of the location where the services are provided, that relate to—
the diagnosis, prevention, or treatment of coronavirus;
the assessment or care of an individual with a confirmed or suspected case of coronavirus; or
the care of any individual who is admitted to, presents to, receives services from, or resides at, a health care provider for any purpose during the period of a Federal emergency declaration concerning coronavirus, if such provider’s decisions or activities with respect to such individual are impacted as a result of coronavirus.
Coronavirus-related medical liability action—
In general— The term coronavirus-related medical liability action means a civil action—
brought by a person who suffered personal injury, or a representative of a person who suffered personal injury;
brought against a health care provider; and
alleging any harm, damage, breach, or tort resulting in the personal injury alleged to have been caused by, be arising out of, or be related to a health care provider’s act or omission in the course of arranging for or providing coronavirus-related health care services that occurred—
on or after December 1, 2019; and
before the later of—
October 1, 2024; or
the date on which there is no declaration by the Secretary of Health and Human Services under section 319F–3(b) of the Public Health Service Act (42 U.S.C. 247d–6d(b)) (relating to covered countermeasures) that is in effect with respect to coronavirus, including the Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID–19 (85 Fed. Reg. 15198 ) issued by the Secretary of Health and Human Services on March 17, 2020.
Exclusions— The term coronavirus-related medical liability action does not include—
a criminal, civil, or administrative enforcement action brought by the Federal Government or any State, local, or Tribal government; or
a claim alleging intentional discrimination on the basis of race, color, national origin, religion, sex (including pregnancy), disability, genetic information, or age.
Employer— The term employer—
means any person serving as an employer or acting directly in the interest of an employer in relation to an employee;
includes a public agency; and
does not include any labor organization (other than when acting as an employer) or any person acting in the capacity of officer or agent of such labor organization.
Government— The term government means an agency, instrumentality, or other entity of the Federal Government, a State government (including multijurisdictional agencies, instrumentalities, and entities), a local government, or a Tribal government.
Gross negligence— The term gross negligence means a conscious, voluntary act or omission in reckless disregard of—
a legal duty;
the consequences to another party; and
applicable government standards and guidance.
Harm— The term harm includes—
physical and nonphysical contact that results in personal injury to an individual; and
economic and noneconomic losses.
Health care provider—
In general— The term health care provider means any person, including an agent, volunteer (subject to subparagraph (C)), contractor, employee, or other entity, who is—
required by Federal or State law to be licensed, registered, or certified to provide health care and is so licensed, registered, or certified (or is exempt from any such requirement);
otherwise authorized by Federal or State law to provide care (including services and supports furnished in a home or community-based residential setting under the State Medicaid program or a waiver of that program); or
considered under applicable Federal or State law to be a health care provider, health care professional, health care institution, or health care facility.
Inclusion of administrators, supervisors, etc— The term health care provider includes a health care facility administrator, executive, supervisor, board member or trustee, or another individual responsible for directing, supervising, or monitoring the provision of coronavirus-related health care services in a comparable role.
Inclusion of volunteers— The term health care provider includes volunteers that meet the following criteria:
The volunteer is a health care professional providing coronavirus-related health care services.
The act or omission by the volunteer occurs—
in the course of providing health care services;
in the health care professional’s capacity as a volunteer;
in the course of providing health care services that—
are within the scope of the license, registration, or certification of the volunteer, as defined by the State of licensure, registration, or certification; and
do not exceed the scope of license, registration, or certification of a substantially similar health professional in the State in which such act or omission occurs; and
in a good-faith belief that the individual being treated is in need of health care services.
Individual or entity— The term individual or entity means—
any natural person, corporation, company, trade, business, firm, partnership, joint stock company, vessel in rem, educational institution, labor organization, or similar organization or group of organizations;
any nonprofit organization, foundation, society, or association organized for religious, charitable, educational, or other purposes; or
any State, Tribal, or local government.
Local government— The term local government means any unit of government within a State, including a—
county;
borough;
municipality;
city;
town;
township;
parish;
local public authority, including any public housing agency under the United States Housing Act of 1937 (42 U.S.C. 1437 et seq.);
special district;
school district;
intrastate district;
council of governments, whether or not incorporated as a nonprofit corporation under State law; and
agency or instrumentality of—
multiple units of local government (including units of local government located in different States); or
an intra-State unit of local government.
Mandatory— The term mandatory, with respect to applicable government standards and guidance, means the standards or regulations are themselves enforceable by the issuing government through criminal, civil, or administrative action.
Personal injury— The term personal injury means—
actual or potential physical injury to an individual or death caused by a physical injury; or
mental suffering, emotional distress, or similar injuries suffered by an individual in connection with a physical injury.
State— The term State—
means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Northern Mariana Islands, the United States Virgin Islands, Guam, American Samoa, and any other territory or possession of the United States, and any political subdivision or instrumentality thereof; and
includes any agency or instrumentality of 2 or more of the entities described in subparagraph (A).
Tribal government—
In general— The term Tribal government means the recognized governing body of any Indian tribe included on the list published by the Secretary of the Interior pursuant to section 104(a) of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5131(a)).
Inclusion— The term Tribal government includes any subdivision (regardless of the laws and regulations of the jurisdiction in which the subdivision is organized or incorporated) of a governing body described in subparagraph (A) that—
is wholly owned by that governing body; and
has been delegated the right to exercise 1 or more substantial governmental functions of the governing body.
Willful misconduct— The term willful misconduct means an act or omission that is taken—
intentionally to achieve a wrongful purpose;
knowingly without legal or factual justification; and
in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.
A Liability relief
I Liability limitations for individuals and entities engaged in businesses, services, activities, or accommodations
Sec. 2121 Application of part
Cause of action; tribal sovereign immunity—
Cause of action—
In general— This part creates an exclusive cause of action for coronavirus exposure actions.
Liability— A plaintiff may prevail in a coronavirus exposure action only in accordance with the requirements of this subtitle.
Application— The provisions of this part shall apply to—
any cause of action that is a coronavirus exposure action that was filed before the date of enactment of this Act and that is pending on such date of enactment; and
any coronavirus exposure action filed on or after such date of enactment.
Preservation of liability limits and defenses— Except as otherwise explicitly provided in this part, nothing in this part expands any liability otherwise imposed or limits any defense otherwise available under Federal, State, or Tribal law.
Immunity— Nothing in this part abrogates the immunity of any State, or waives the immunity of any Tribal government. The limitations on liability provided under this part shall control in any action properly filed against a State or Tribal government pursuant to a duly executed waiver by the State or Tribe of sovereign immunity and stating claims within the scope of this part.
Preemption and supersedure—
In general— Except as described in paragraphs (2) through (6), this part preempts and supersedes any Federal, State, or Tribal law, including statutes, regulations, rules, orders, proclamations, or standards that are enacted, promulgated, or established under common law, related to recovery for personal injuries caused by actual, alleged, feared, or potential for exposure to coronavirus.
Stricter laws not preempted or superseded— Nothing in this part shall be construed to affect the applicability of any provision of any Federal, State, or Tribal law that imposes stricter limits on damages or liabilities for personal injury caused by, arising out of, or related to an actual, alleged, feared, or potential for exposure to coronavirus, or otherwise affords greater protection to defendants in any coronavirus exposure action, than are provided in this part. Any such provision of Federal, State, or Tribal law shall be applied in addition to the requirements of this part and not in lieu thereof.
Workers’ compensation laws not preempted or superseded— Nothing in this part shall be construed to affect the applicability of any State or Tribal law providing for a claim for benefits under a workers’ compensation scheme or program, or to preempt or supersede an exclusive remedy under such scheme or program.
Enforcement actions— Nothing in this part shall be construed to impair, limit, or affect the authority of the Federal Government, or of any State, local, or Tribal government, to bring any criminal, civil, or administrative enforcement action against any individual or entity.
Discrimination claims— Nothing in this part shall be construed to affect the applicability of any provision of any Federal, State, or Tribal law that creates a cause of action for intentional discrimination on the basis of race, color, national origin, religion, sex (including pregnancy), disability, genetic information, or age.
Maintenance and cure— Nothing in this part shall be construed to affect a seaman’s right to claim maintenance and cure benefits.
Statute of limitations— A coronavirus exposure action may not be commenced in any Federal, State, or Tribal government court later than 1 year after the date of the actual, alleged, feared, or potential for exposure to coronavirus.
Sec. 2122 Liability; safe harbor
Requirements for liability for exposure to coronavirus— Notwithstanding any other provision of law, and except as otherwise provided in this section, no individual or entity engaged in businesses, services, activities, or accommodations shall be liable in any coronavirus exposure action unless the plaintiff can prove by clear and convincing evidence that—
in engaging in the businesses, services, activities, or accommodations, the individual or entity was not making reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance in effect at the time of the actual, alleged, feared, or potential for exposure to coronavirus;
the individual or entity engaged in gross negligence or willful misconduct that caused an actual exposure to coronavirus; and
the actual exposure to coronavirus caused the personal injury of the plaintiff.
Reasonable efforts To comply—
Conflicting applicable government standards and guidance—
In general— If more than 1 government to whose jurisdiction an individual or entity is subject issues applicable government standards and guidance, and the applicable government standards and guidance issued by 1 or more of the governments conflicts with the applicable government standards and guidance issued by 1 or more of the other governments, the individual or entity shall be considered to have made reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance for purposes of subsection (a)(1) unless the plaintiff establishes by clear and convincing evidence that the individual or entity was not making reasonable efforts in light of all the circumstances to comply with any of the conflicting applicable government standards and guidance issued by any government to whose jurisdiction the individual or entity is subject.
Exception— If mandatory standards and regulations constituting applicable government standards and guidance issued by any government with jurisdiction over the individual or entity conflict with applicable government standards and guidance that are not mandatory and are issued by any other government with jurisdiction over the individual or entity or by the same government that issued the mandatory standards and regulations, the plaintiff may establish that the individual or entity did not make reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance for purposes of subsection (a)(1) by establishing by clear and convincing evidence that the individual or entity was not making reasonable efforts in light of all the circumstances to comply with the mandatory standards and regulations to which the individual or entity was subject.
Written or published policy—
In general— If an individual or entity engaged in businesses, services, activities, or accommodations maintained a written or published policy on the mitigation of transmission of coronavirus at the time of the actual, alleged, feared, or potential for exposure to coronavirus that complied with, or was more protective than, the applicable government standards and guidance to which the individual or entity was subject, the individual or entity shall be presumed to have made reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance for purposes of subsection (a)(1).
Rebuttal— The plaintiff may rebut the presumption under subparagraph (A) by establishing that the individual or entity was not complying with the written or published policy at the time of the actual, alleged, feared, or potential for exposure to coronavirus.
Absence of a written or published policy— The absence of a written or published policy shall not give rise to a presumption that the individual or entity did not make reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance for purposes of subsection (a)(1).
Timing— For purposes of subsection (a)(1), a change to a policy or practice by an individual or entity before or after the actual, alleged, feared, or potential for exposure to coronavirus, shall not be evidence of liability for the actual, alleged, feared, or potential for exposure to coronavirus.
Third parties— No individual or entity shall be held liable in a coronavirus exposure action for the acts or omissions of a third party, unless—
the individual or entity had an obligation under general common law principles to control the acts or omissions of the third party; or
the third party was an agent of the individual or entity.
Mitigation— Changes to the policies, practices, or procedures of an individual or entity for complying with the applicable government standards and guidance after the time of the actual, alleged, feared, or potential for exposure to coronavirus, shall not be considered evidence of liability or culpability.
II Liability limitations for health care providers
Sec. 2141 Application of part
In general—
Cause of action—
In general— This part creates an exclusive cause of action for coronavirus-related medical liability actions.
Liability— A plaintiff may prevail in a coronavirus-related medical liability action only in accordance with the requirements of this subtitle.
Application— The provisions of this part shall apply to—
any cause of action that is a coronavirus-related medical liability action that was filed before the date of enactment of this Act and that is pending on such date of enactment; and
any coronavirus-related medical liability action filed on or after such date of enactment.
Preservation of liability limits and defenses— Except as otherwise explicitly provided in this part, nothing in this part expands any liability otherwise imposed or limits any defense otherwise available under Federal, State, or Tribal law.
Immunity— Nothing in this part abrogates the immunity of any State, or waives the immunity of any Tribal government. The limitations on liability provided under this part shall control in any action properly filed against a State or Tribal government pursuant to a duly executed waiver by the State or Tribe of sovereign immunity and stating claims within the scope of this part.
Preemption and supersedure—
In general— Except as described in paragraphs (2) through (6), this part preempts and supersedes any Federal, State, or Tribal law, including statutes, regulations, rules, orders, proclamations, or standards that are enacted, promulgated, or established under common law, related to recovery for personal injuries caused by, arising out of, or related to an act or omission by a health care provider in the course of arranging for or providing coronavirus-related health care services.
Stricter laws not preempted or superseded— Nothing in this part shall be construed to affect the applicability of any provision of any Federal, State, or Tribal law that imposes stricter limits on damages or liabilities for personal injury caused by, arising out of, or related to an act or omission by a health care provider in the course of arranging for or providing coronavirus-related health care services, or otherwise affords greater protection to defendants in any coronavirus-related medical liability action than are provided in this part. Any such provision of Federal, State, or Tribal law shall be applied in addition to the requirements of this part and not in lieu thereof.
Enforcement actions— Nothing in this part shall be construed to impair, limit, or affect the authority of the Federal Government, or of any State, local, or Tribal government to bring any criminal, civil, or administrative enforcement action against any health care provider.
Discrimination claims— Nothing in this part shall be construed to affect the applicability of any provision of any Federal, State, or Tribal law that creates a cause of action for intentional discrimination on the basis of race, color, national origin, religion, sex (including pregnancy), disability, genetic information, or age.
Public Readiness and Emergency Preparedness— Nothing in this part shall be construed to affect the applicability of section 319F–3 of the Public Health Service Act (42 U.S.C. 247d–6d) to any act or omission involving a covered countermeasure, as defined in subsection (i) of such section in arranging for or providing coronavirus-related health care services. Nothing in this part shall be construed to affect the applicability of section 319F–4 of the Public Health Service Act (42 U.S.C. 247d–6e).
Vaccine injury— To the extent that title XXI of the Public Health Service Act (42 U.S.C. 300aa–1 et seq.) establishes a Federal rule applicable to a civil action brought for a vaccine-related injury or death, this part does not affect the application of that rule to such an action.
Statute of limitations— A coronavirus-related medical liability action may not be commenced in any Federal, State, or Tribal government court later than 1 year after the date of the alleged harm, damage, breach, or tort, unless tolled for—
proof of fraud;
intentional concealment; or
the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.
Sec. 2142 Liability for health care professionals and health care facilities during coronavirus public health emergency
Requirements for liability for coronavirus-related health care services— Notwithstanding any other provision of law, and except as provided in subsection (b), no health care provider shall be liable in a coronavirus-related medical liability action unless the plaintiff can prove by clear and convincing evidence—
gross negligence or willful misconduct by the health care provider; and
that the alleged harm, damage, breach, or tort resulting in the personal injury was directly caused by the alleged gross negligence or willful misconduct.
Exceptions— For purposes of this section, acts, omissions, or decisions resulting from a resource or staffing shortage shall not be considered willful misconduct or gross negligence.
III Substantive and procedural provisions for coronavirus-related actions generally
Sec. 2161 Jurisdiction
Jurisdiction— The district courts of the United States shall have concurrent original jurisdiction of any coronavirus-related action.
Removal—
In general— A coronavirus-related action of which the district courts of the United States have original jurisdiction under subsection (a) that is brought in a State or Tribal government court may be removed to a district court of the United States in accordance with section 1446 of title 28, United States Code, except that—
notwithstanding subsection (b)(2)(A) of such section, such action may be removed by any defendant without the consent of all defendants; and
notwithstanding subsection (b)(1) of such section, for any cause of action that is a coronavirus-related action that was filed in a State court before the date of enactment of this Act and that is pending in such court on such date of enactment, and of which the district courts of the United States have original jurisdiction under subsection (a), any defendant may file a notice of removal of a civil action or proceeding within 30 days of the date of enactment of this Act.
Procedure after removal— Section 1447 of title 28, United States Code, shall apply to any removal of a case under paragraph (1), except that, notwithstanding subsection (d) of such section, a court of appeals of the United States shall accept an appeal from an order of a district court granting or denying a motion to remand the case to the State or Tribal government court from which it was removed if application is made to the court of appeals of the United States not later than 10 days after the entry of the order.
Sec. 2162 Limitations on suits
Joint and several liability limitations—
In general— An individual or entity against whom a final judgment is entered in any coronavirus-related action shall be liable solely for the portion of the judgment that corresponds to the relative and proportionate responsibility of that individual or entity. In determining the percentage of responsibility of any defendant, the trier of fact shall determine that percentage as a percentage of the total fault of all individuals or entities, including the plaintiff, who caused or contributed to the total loss incurred by the plaintiff.
Proportionate liability—
Determination of responsibility— In any coronavirus-related action, the court shall instruct the jury to answer special interrogatories, or, if there is no jury, the court shall make findings with respect to each defendant, including defendants who have entered into settlements with the plaintiff or plaintiffs, concerning the percentage of responsibility, if any, of each defendant, measured as a percentage of the total fault of all individuals or entities who caused or contributed to the loss incurred by the plaintiff.
Factors for consideration— In determining the percentage of responsibility under this subsection, the trier of fact shall consider—
the nature of the conduct of each individual or entity found to have caused or contributed to the loss incurred by the plaintiff; and
the nature and extent of the causal relationship between the conduct of each such individual or entity and the damages incurred by the plaintiff.
Joint liability for specific intent or fraud— Notwithstanding paragraph (1), in any coronavirus-related action the liability of a defendant is joint and several if the trier of fact specifically determines that the defendant—
acted with specific intent to injure the plaintiff; or
knowingly committed fraud.
Right to contribution not affected— Nothing in this subsection affects the right, under any other law, of a defendant to contribution with respect to another defendant determined under paragraph (3) to have acted with specific intent to injure the plaintiff or to have knowingly committed fraud.
Limitations on damages— In any coronavirus-related action—
the award of compensatory damages shall be limited to economic losses incurred as the result of the personal injury, harm, damage, breach, or tort, except that the court may award damages for noneconomic losses if the trier of fact determines that the personal injury, harm, damage, breach, or tort was caused by the willful misconduct of the individual or entity;
punitive damages—
may be awarded only if the trier of fact determines that the personal injury to the plaintiff was caused by the willful misconduct of the individual or entity; and
may not exceed the amount of compensatory damages awarded; and
the amount of monetary damages awarded to a plaintiff shall be reduced by the amount of compensation received by the plaintiff from another source in connection with the personal injury, harm, damage, breach, or tort, such as insurance or reimbursement by a government.
Preemption and supersedure—
In general— Except as described in paragraphs (2) and (3), this section preempts and supersedes any Federal, State, or Tribal law, including statutes, regulations, rules, orders, proclamations, or standards that are enacted, promulgated, or established under common law, related to joint and several liability, proportionate or contributory liability, contribution, or the award of damages for any coronavirus-related action.
Stricter laws not preempted or superseded— Nothing in this section shall be construed to affect the applicability of any provision of any Federal, State, or Tribal law that—
limits the liability of a defendant in a coronavirus-related action to a lesser degree of liability than the degree of liability determined under this section;
otherwise affords a greater degree of protection from joint or several liability than is afforded by this section; or
limits the damages that can be recovered from a defendant in a coronavirus-related action to a lesser amount of damages than the amount determined under this section.
Public Readiness and Emergency Preparedness— Nothing in this part shall be construed to affect the applicability of section 319F–3 of the Public Health Service Act (42 U.S.C. 247d–6d) to any act or omission involving a covered countermeasure, as defined in subsection (i) of such section in arranging for or providing coronavirus-related health care services. Nothing in this part shall be construed to affect the applicability of section 319F–4 of the Public Health Service Act (42 U.S.C. 247d–6e).
Sec. 2163 Procedures for suit in district courts of the united states
Pleading with particularity— In any coronavirus-related action filed in or removed to a district court of the United States—
the complaint shall plead with particularity—
each element of the plaintiff’s claim; and
with respect to a coronavirus exposure action, all places and persons visited by the person on whose behalf the complaint was filed and all persons who visited the residence of the person on whose behalf the complaint was filed during the 14-day-period before the onset of the first symptoms allegedly caused by coronavirus, including—
each individual or entity against which a complaint is filed, along with the factual basis for the belief that such individual or entity was a cause of the personal injury alleged; and
every other person or place visited by the person on whose behalf the complaint was filed and every other person who visited the residence of the person on whose behalf the complaint was filed during such period, along with the factual basis for the belief that these persons and places were not the cause of the personal injury alleged; and
the complaint shall plead with particularity each alleged act or omission constituting gross negligence or willful misconduct that resulted in personal injury, harm, damage, breach, or tort.
Separate statements concerning the nature and amount of damages and required state of mind—
Nature and amount of damages— In any coronavirus-related action filed in or removed to a district court of the United States in which monetary damages are requested, there shall be filed with the complaint a statement of specific information as to the nature and amount of each element of damages and the factual basis for the damages calculation.
Required state of mind— In any coronavirus-related action filed in or removed to a district court of the United States in which a claim is asserted on which the plaintiff may prevail only on proof that the defendant acted with a particular state of mind, there shall be filed with the complaint, with respect to each element of that claim, a statement of the facts giving rise to a strong inference that the defendant acted with the required state of mind.
Verification and medical records—
Verification requirement—
In general— The complaint in a coronavirus-related action filed in or removed to a district court of the United States shall include a verification, made by affidavit of the plaintiff under oath, stating that the pleading is true to the knowledge of the deponent, except as to matters specifically identified as being alleged on information and belief, and that as to those matters the plaintiff believes it to be true.
Identification of matters alleged upon information and belief— Any matter that is not specifically identified as being alleged upon the information and belief of the plaintiff, shall be regarded for all purposes, including a criminal prosecution, as having been made upon the knowledge of the plaintiff.
Materials required— In any coronavirus-related action filed in or removed to a district court of the United States, the plaintiff shall file with the complaint—
an affidavit by a physician or other qualified medical expert who did not treat the person on whose behalf the complaint was filed that explains the basis for such physician’s or other qualified medical expert’s belief that such person suffered the personal injury, harm, damage, breach, or tort alleged in the complaint; and
certified medical records documenting the alleged personal injury, harm, damage, breach, or tort.
Application with Federal rules of civil procedure— This section applies exclusively to any coronavirus-related action filed in or removed to a district court of the United States and, except to the extent that this section requires additional information to be contained in or attached to pleadings, nothing in this section is intended to amend or otherwise supersede applicable rules of Federal civil procedure.
Civil discovery for actions in district courts of the United States—
Timing— Notwithstanding any other provision of law, in any coronavirus-related action filed in or removed to a district court of the United States, no discovery shall be allowed before—
the time has expired for the defendant to answer or file a motion to dismiss; and
if a motion to dismiss is filed, the court has ruled on the motion.
Standard— Notwithstanding any other provision of law, the court in any coronavirus-related action that is filed in or removed to a district court of the United States—
shall permit discovery only with respect to matters directly related to material issues contested in the coronavirus-related action; and
may compel a response to a discovery request (including a request for admission, an interrogatory, a request for production of documents, or any other form of discovery request) under rule 37 of the Federal Rules of Civil Procedure, only if the court finds that—
the requesting party needs the information sought to prove or defend as to a material issue contested in such action; and
the likely benefits of a response to such request equal or exceed the burden or cost for the responding party of providing such response.
Interlocutory appeal and stay of discovery— The courts of appeals of the United States shall have jurisdiction of an appeal from a motion to dismiss that is denied in any coronavirus-related action in a district court of the United States. The district court shall stay all discovery in such a coronavirus-related action until the court of appeals has disposed of the appeal.
Class actions and multidistrict litigation proceedings—
Class actions— In any coronavirus-related action that is filed in or removed to a district court of the United States and is maintained as a class action or multidistrict litigation—
an individual or entity shall only be a member of the class if the individual or entity affirmatively elects to be a member; and
the court, in addition to any other notice required by applicable Federal or State law, shall direct notice of the action to each member of the class, which shall include—
a concise and clear description of the nature of the action;
the jurisdiction where the case is pending; and
the fee arrangements with class counsel, including—
the hourly fee being charged; or
if it is a contingency fee, the percentage of the final award which will be paid, including an estimate of the total amount that would be paid if the requested damages were to be granted; and
if the cost of the litigation is being financed, a description of the financing arrangement.
Multidistrict litigations—
Trial prohibition— In any coordinated or consolidated pretrial proceedings conducted pursuant to section 1407(b) of title 28, United States Code, the judge or judges to whom coronavirus-related actions are assigned by the Judicial Panel on Multidistrict Litigation may not conduct a trial in a coronavirus-related action transferred to or directly filed in the proceedings unless all parties to that coronavirus-related action consent.
Review of orders— The court of appeals of the United States having jurisdiction over the transferee district court shall permit an appeal to be taken from any order issued in the conduct of coordinated or consolidated pretrial proceedings conducted pursuant to section 1407(b) of title 28, United States Code, if the order is applicable to 1 or more coronavirus-related actions and an immediate appeal from the order may materially advance the ultimate termination of 1 or more coronavirus-related actions in the proceedings.
Sec. 2164 Demand letters; cause of action
Cause of action— If any person transmits or causes another to transmit in any form and by any means a demand for remuneration in exchange for settling, releasing, waiving, or otherwise not pursuing a claim that is, or could be, brought as part of a coronavirus-related action, the party receiving such a demand shall have a cause of action for the recovery of damages occasioned by such demand and for declaratory judgment in accordance with chapter 151 of title 28, United States Code, if the claim for which the letter was transmitted was meritless.
Damages— Damages available under subsection (a) shall include—
compensatory damages including costs incurred in responding to the demand; and
punitive damages, if the court determines that the defendant had knowledge or was reckless with regard to the fact that the claim was meritless.
Attorney’s fees and costs— In an action commenced under subsection (a), if the plaintiff is a prevailing party, the court shall, in addition to any judgment awarded to a plaintiff, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.
Jurisdiction— The district courts of the United States shall have concurrent original jurisdiction of all claims arising under subsection (a).
Enforcement by the attorney general—
In general— Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of transmitting demands for remuneration in exchange for settling, releasing, waiving, or otherwise not pursuing a claim that is, or could be, brought as part of a coronavirus-related action and that is meritless, the Attorney General may commence a civil action in any appropriate district court of the United States.
Relief— In a civil action under paragraph (1), the court may, to vindicate the public interest, assess a civil penalty against the respondent in an amount not exceeding $50,000 per transmitted demand for remuneration in exchange for settling, releasing, waiving or otherwise not pursuing a claim that is meritless.
Distribution of civil penalties— If the Attorney General obtains civil penalties in accordance with paragraph (2), the Attorney General shall distribute the proceeds equitably among those persons aggrieved by the respondent’s pattern or practice of transmitting demands for remuneration in exchange for settling, releasing, waiving or otherwise not pursuing a claim that is meritless.
IV Relation to labor and employment laws
Sec. 2181 Limitation on violations under specific laws
In general—
Definition— In this subsection, the term covered Federal employment law means any of the following:
The Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) (including any standard included in a State plan approved under section 18 of such Act (29 U.S.C. 667)).
The Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.).
The Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.).
The Worker Adjustment and Retraining Notification Act (29 U.S.C. 2101 et seq.).
Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.).
Title II of the Genetic Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff et seq.).
Title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.).
Limitation— Notwithstanding any provision of a covered Federal employment law, in any action, proceeding, or investigation resulting from or related to an actual, alleged, feared, or potential for exposure to coronavirus, or a change in working conditions caused by a law, rule, declaration, or order related to coronavirus, an employer shall not be subject to any enforcement proceeding or liability under any provision of a covered Federal employment law if the employer—
was relying on and generally following applicable government standards and guidance;
knew of the obligation under the relevant provision; and
attempted to satisfy any such obligation by—
exploring options to comply with such obligations and with the applicable government standards and guidance (such as through the use of virtual training or remote communication strategies);
implementing interim alternative protections or procedures; or
following guidance issued by the relevant agency with jurisdiction with respect to any exemptions from such obligation.
Public accommodation laws—
Definitions— In this subsection—
the term auxiliary aids and services has the meaning given the term in section 4 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12103);
the term covered public accommodation law means—
title III of the Americans with Disabilities Act of 1990 (42 U.S.C. 12181 et seq.); or
title II of the Civil Rights Act of 1964 (42 U.S.C. 2000a et seq.);
the term place of public accommodation means—
a place of public accommodation, as defined in section 201 of the Civil Rights Act of 1964 (42 U.S.C. 2000a); or
a public accommodation, as defined in section 301 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12181); and
the term public health emergency period means a period designated a public health emergency period by a Federal, State, or local government authority.
Actions and measures during a public health emergency—
In general— Notwithstanding any other provision of law or regulation, during any public health emergency period, no person who owns, leases (or leases to), or operates a place of public accommodation shall be liable under, or found in violation of, any covered public accommodation law for any action or measure taken regarding coronavirus and that place of public accommodation, if such person—
has determined that the significant risk of substantial harm to public health or the health of employees cannot be reduced or eliminated by reasonably modifying policies, practices, or procedures, or the provision of an auxiliary aid or service; or
has offered such a reasonable modification or auxiliary aid or service but such offer has been rejected by the individual protected by the covered law.
Required waiver prohibited— For purposes of this subsection, no person who owns, leases (or leases to), or operates a place of public accommodation shall be required to waive any measure, requirement, or recommendation that has been adopted in accordance with a requirement or recommendation issued by the Federal Government or any State or local government with regard to coronavirus, in order to offer such a reasonable modification or auxiliary aids and services.
Sec. 2182 Liability for conducting testing at workplace
Notwithstanding any other provision of Federal, State, or local law, an employer, or other person who hires or contracts with other individuals to provide services, that conducts tests for coronavirus on the employees of the employer or persons hired or contracted to provide services shall not be liable for any action or personal injury directly resulting from such testing, except for those personal injuries caused by the gross negligence or intentional misconduct of the employer or other person.
Sec. 2183 Joint employment and independent contracting
Notwithstanding any other provision of Federal or State law, including any covered Federal employment law (as defined in section 2181(a)), the Labor Management Relations Act, 1947 (29 U.S.C. 141 et seq.), the Employment Retirement Income Security Act of 1974 (29 U.S.C. 1001 et seq.), and the Family and Medical Leave Act of 1993 (29 U.S.C. 2601 et seq.), it shall not constitute evidence of a joint employment relationship or employment relationship for any employer to provide or require, for an employee of another employer or for an independent contractor, any of the following:
Coronavirus-related policies, procedures, or training.
Personal protective equipment or training for the use of such equipment.
Cleaning or disinfecting services or the means for such cleaning or disinfecting.
Workplace testing for coronavirus.
Temporary assistance due to coronavirus, including financial assistance or other health and safety benefits.
Sec. 2184 Exclusion of certain notification requirements as a result of the COVID–19 public health emergency
Definitions— Section 2(a) of the Worker Adjustment and Retraining Notification Act (29 U.S.C. 2101(a)) is amended—
in paragraph (2), by adding before the semicolon at the end the following: “and the shutdown, if occurring during the covered period, is not a result of the COVID–19 national emergency”;
in paragraph (3)—
in subparagraph (A), by striking “and” at the end;
in subparagraph (B), by adding “and” at the end; and
by adding at the end the following:
“(C) if occurring during the covered period, is not a result of the COVID–19 national emergency;”
in paragraph (7), by striking “and”;
in paragraph (8), by striking the period at the end and inserting a semicolon; and
by adding at the end the following:
“(9) the term covered period means the period that—
“(A) begins on January 1, 2020; and
“(B) ends 90 days after the last date of the COVID–19 national emergency; and
“(10) the term COVID–19 national emergency means the national emergency declared by the President under the National Emergencies Act (50 U.S.C. 1601 et seq.) with respect to the Coronavirus Disease 2019 (COVID–19).”
Exclusion from definition of employment loss— Section 2(b) of the Worker Adjustment and Retraining Notification Act (29 U.S.C. 2101(b)) is amended by adding at the end the following:
“(3) Notwithstanding subsection (a)(6), during the covered period an employee may not be considered to have experienced an employment loss if the termination, layoff exceeding 6 months, or reduction in hours of work of more than 50 percent during each month of any 6-month period involved is a result of the COVID–19 national emergency.”
B Products
Sec. 2201 Applicability of the targeted liability protections for pandemic and epidemic products and security countermeasures with respect to covid–19
In general— Section 319F–3(i)(1) of the Public Health Service Act (42 U.S.C. 247d–6d(i)(1)) is amended—
in subparagraph (C), by striking “; or” and inserting a semicolon;
in subparagraph (D), by striking the period and inserting “; or”; and
by adding at the end the following:
“(E) a drug (as such term is defined in section 201(g)(1) of the Federal Food, Drug, and Cosmetic Act), biological product (including a vaccine) (as such term is defined in section 351(i)), or device (as such term is defined in section 201(h) of the Federal Food, Drug, and Cosmetic Act) that—
“(i) is the subject of a notice of use of enforcement discretion issued by the Secretary if such drug, biological product, or device is used—
“(I) when such notice is in effect;
“(II) within the scope of such notice; and
“(III) in compliance with other applicable requirements of the Federal Food, Drug, and Cosmetic Act that are not the subject of such notice;
“(ii) in the case of a device, is exempt from the requirement under section 510(k) of the Federal Food, Drug, and Cosmetic Act; or
“(iii) in the case of a drug—
“(I) meets the requirements for marketing under a final administrative order under section 505G of the Federal Food, Drug, and Cosmetic Act; or
“(II) is marketed in accordance with section 505G(a)(3) of such Act.”
Clarifying means of distribution— Section 319F–3(a)(5) of the Public Health Service Act (42 U.S.C. 247d–6d(a)(5)) is amended by inserting “by, or in partnership with, Federal, State, or local public health officials or the private sector” after “distribution” the first place it appears.
No change to Administrative Procedure Act application to enforcement discretion exercise— Section 319F–3 of the Public Health Service Act (42 U.S.C. 247d–6d) is amended by adding at the end the following:
“(j) Rule of construction—Nothing in this section shall be construed—
“(1) to require use of procedures described in section 553 of title 5, United States Code, for a notice of use of enforcement discretion for which such procedures are not otherwise required; or
“(2) to affect whether such notice constitutes final agency action within the meaning of section 704 of title 5, United States Code.”
C General provisions
Sec. 2301 Severability
If any provision of this title, an amendment made by this title, or the application of such a provision or amendment to any person or circumstance is held to be unconstitutional, the remaining provisions of and amendments made by this title, as well as the application of such provision or amendment to any person other than the parties to the action holding the provision or amendment to be unconstitutional, or to any circumstances other than those presented in such action, shall not be affected thereby.
III Assistance for American families
Sec. 3001 Short title
This title may be cited as the “Continued Financial Relief to Americans Act of 2020”.
Sec. 3002 Extension of the Federal Pandemic Unemployment Compensation program
Extension— Section 2104(e)(2) of division A of the CARES Act (15 U.S.C. 9023(e)(2)) is amended by striking “July 31, 2020” and inserting “December 27, 2020”.
Amount—
in paragraph (1)(B), by striking “of $600” and inserting “equal to the amount specified in paragraph (3)”; and
by adding at the end the following new paragraph:
“(3) Amount of Federal Pandemic Unemployment Compensation—The amount specified in this paragraph is the following amount:
“(A) For weeks of unemployment beginning after the date on which an agreement is entered into under this section and ending on or before July 31, 2020, $600.
“(B) For weeks of unemployment beginning after the last week under subparagraph (A) and ending on or before December 27, 2020, $300.”
Technical amendment regarding application to short-time compensation programs and agreements— Section 2104(i)(2) of division A of the CARES Act (15 U.S.C. 9023(i)(2)) is amended—
in subparagraph (C), by striking “and” at the end;
in subparagraph (D), by striking the period at the end and inserting “; and”; and
by adding at the end the following:
“(E) short-time compensation under section 2108 or 2109.”
Extension of enhanced benefits under the Railroad Unemployment Insurance Act— Section 2(a)(5)(A) of the Railroad Unemployment Insurance Act (45 U.S.C. 352(a)(5)(A)) is amended by inserting after the first sentence the following new sentence: “Notwithstanding paragraph (3), subsection (c)(1)(B), and any other limitation on total benefits in this Act, for registration periods beginning after July 31, 2020, but on or before December 27, 2020, a recovery benefit in the amount of $600 shall be payable with respect to a qualified employee for a period in which the individual received unemployment benefits under paragraph (1)(A).”.
Effective date— The amendments made by this section shall take effect as if included in the enactment of the CARES Act (15 U.S.C. 9001 note).
IV Small business programs
Sec. 4001 Small business recovery
Short title— This section may be cited as the “Continuing the Paycheck Protection Program Act”.
Definitions— In this section:
Administration; Administrator— The terms Administration and Administrator mean the Small Business Administration and the Administrator thereof, respectively.
Small business concern— The term small business concern has the meaning given the term in section 3 of the Small Business Act (15 U.S.C. 632).
Emergency rulemaking authority— Not later than 30 days after the date of enactment of this Act, the Administrator shall issue regulations to carry out this section and the amendments made by this section without regard to the notice requirements under section 553(b) of title 5, United States Code.
Additional eligible expenses—
Allowable use of PPP loan— Section 7(a)(36)(F)(i) of the Small Business Act (15 U.S.C. 636(a)(36)(F)(i)) is amended—
in subclause (VI), by striking “and” at the end;
in subclause (VII), by striking the period at the end and inserting a semicolon; and
by adding at the end the following:
“(VIII) covered operations expenditures, as defined in section 1106(a) of the CARES Act (15 U.S.C. 9005(a));
“(IX) covered property damage costs, as defined in such section 1106(a);
“(X) covered supplier costs, as defined in such section 1106(a); and
“(XI) covered worker protection expenditures, as defined in such section 1106(a).”
in subsection (a)—
by redesignating paragraphs (6), (7), and (8) as paragraphs (10), (11), and (12), respectively;
by redesignating paragraph (5) as paragraph (8);
by redesignating paragraph (4) as paragraph (6);
by redesignating paragraph (3) as paragraph (4);
by inserting after paragraph (2) the following:
“(3) the term covered operations expenditure means a payment for any business software or cloud computing service that facilitates business operations, product or service delivery, the processing, payment, or tracking of payroll expenses, human resources, sales and billing functions, or accounting or tracking of supplies, inventory, records and expenses;”
by inserting after paragraph (4), as so redesignated, the following:
“(5) the term covered property damage cost means a cost related to property damage and vandalism or looting due to public disturbances that occurred during 2020 that was not covered by insurance or other compensation;”
by inserting after paragraph (6), as so redesignated, the following:
“(5) the term covered supplier cost means an expenditure made by an entity to a supplier of goods pursuant to a contract in effect before February 15, 2020 for the supply of goods that are essential to the operations of the entity at the time at which the expenditure is made;”
by inserting after paragraph (8), as so redesignated, the following:
“(9) the term covered worker protection expenditure—
“(A) means an operating or a capital expenditure that is required to facilitate the adaptation of the business activities of an entity to comply with requirements established or guidance issued by the Department of Health and Human Services, the Centers for Disease Control, or the Occupational Safety and Health Administration during the period beginning on March 1, 2020 and ending December 31, 2020 related to the maintenance of standards for sanitation, social distancing, or any other worker or customer safety requirement related to COVID–19;
“(B) may include—
“(i) the purchase, maintenance, or renovation of assets that create or expand—
“(I) a drive-through window facility;
“(II) an indoor, outdoor, or combined air or air pressure ventilation or filtration system;
“(III) a physical barrier such as a sneeze guard;
“(IV) an indoor, outdoor, or combined commercial real property;
“(V) an onsite or offsite health screening capability; or
“(VI) other assets relating to the compliance with the requirements or guidance described in subparagraph (A), as determined by the Administrator in consultation with the Secretary of Health and Human Services and the Secretary of Labor; and
“(ii) the purchase of—
“(I) covered materials described in section 328.103(a) of title 44, Code of Federal Regulations, or any successor regulation;
“(II) particulate filtering facepiece respirators approved by the National Institute for Occupational Safety and Health, including those approved only for emergency use authorization; or
“(III) other kinds of personal protective equipment, as determined by the Administrator in consultation with the Secretary of Health and Human Services and the Secretary of Labor; and
“(C) does not include residential real property or intangible property;”
in paragraph (11), as so redesignated—
in subparagraph (C), by striking “and” at the end;
in subparagraph (D), by striking “and” at the end; and
by adding at the end the following:
“(E) covered operations expenditures;
“(F) covered property damage costs;
“(G) covered supplier costs; and
“(H) covered worker protection expenditures; and”
in subsection (b), by adding at the end the following:
“(5) Any covered operations expenditure.
“(6) Any covered property damage cost.
“(7) Any covered supplier cost.
“(8) Any covered worker protection expenditure.”
in subsection (d)(8), by inserting “any payment on any covered operations expenditure, any payment on any covered property damage cost, any payment on any covered supplier cost, any payment on any covered worker protection expenditure,” after “rent obligation,”; and
in subsection (e)—
in paragraph (2), by inserting “payments on covered operations expenditures, payments on covered property damage costs, payments on covered supplier costs, payments on covered worker protection expenditures,” after “lease obligations,”; and
in paragraph (3)(B), by inserting “make payments on covered operations expenditures, make payments on covered property damage costs, make payments on covered supplier costs, make payments on covered worker protection expenditures,” after “rent obligation,”.
Lender safe harbor— Subsection (h) of section 1106 of the CARES Act (15 U.S.C. 9005) is amended to read as follows:
“(h) Hold harmless
“(1) In general—A lender may rely on any certification or documentation submitted by an applicant for a covered loan or an eligible recipient of a covered loan that—
“(A) is submitted pursuant to any statutory requirement relating to covered loans or any rule or guidance issued to carry out any action relating to covered loans; and
“(B) attests that the applicant or eligible recipient, as applicable, has accurately verified any certification or documentation provided to the lender.
“(2) No enforcement action—With respect to a lender that relies on a certification or documentation described in paragraph (1)—
“(A) an enforcement action may not be taken against the lender acting in good faith relating to origination or forgiveness of a covered loan based on such reliance; and
“(B) the lender acting in good faith shall not be subject to any penalties relating to origination or forgiveness of a covered loan based on such reliance.”
Selection of covered period for forgiveness— Section 1106 of the CARES Act (15 U.S.C. 9005) is amended—
by amending paragraph (4) of subsection (a), as so redesignated by subsection (d) of this section, to read as follows:
“(4) the term covered period means the period—
“(A) beginning on the date of the origination of a covered loan; and
“(B) ending on a date selected by the eligible recipient of the covered loan that occurs during the period—
“(i) beginning on the date that is 8 weeks after such date of origination; and
“(ii) ending on December 31, 2020;”
by striking subsection (l).
Simplified application— Section 1106 of the CARES Act (15 U.S.C. 9005), as amended by subsection (f) of this section, is amended—
in subsection (e), in the matter preceding paragraph (1), by striking “An eligible” and inserting “Except as provided in subsection (l), an eligible”;
in subsection (f), by inserting “or the information required under subsection (l), as applicable” after “subsection (e)”; and
by adding at the end the following:
“(l) Simplified application
“(1) Covered loans under $150,000
“(A) In general—Notwithstanding subsection (e), with respect to a covered loan made to an eligible recipient that is not more than $150,000, the covered loan amount shall be forgiven under this section if the eligible recipient—
“(i) signs and submits to the lender a one-page online or paper form, to be established by the Administrator not later than 7 days after the date of enactment of the Continuing the Paycheck Protection Program Act, that—
“(I) reports the amount of the covered loan amount spent by the eligible recipient—
“(aa) on payroll costs; and
“(bb) on the sum of—
“(AA) payments of interest on any covered mortgage obligation (which shall not include any prepayment of or payment of principal on a covered mortgage obligation);
“(BB) payments on any covered rent obligation;
“(CC) covered utility payments;
“(DD) covered operations expenditures;
“(EE) covered property damage costs;
“(FF) covered supplier costs; and
“(GG) covered worker protection expenditures; and
“(II) attests that the eligible recipient made a good faith effort to comply with the requirements under section 7(a)(36) of the Small Business Act (15 U.S.C. 636(a)(36)); and
“(ii) retains records relevant to the form that prove compliance with those requirements—
“(I) with respect to employment records, for the 4-year period following submission of the form; and
“(II) with respect to other records, for the 3-year period following submission of the form.
“(B) Demographic information—An eligible recipient of a covered loan described in subparagraph (A) may complete and submit any form related to borrower demographic information.
“(C) Audit—The Administrator may—
“(i) review and audit covered loans described in subparagraph (A); and
“(ii) in the case of fraud, ineligibility, or other material noncompliance with applicable loan or loan forgiveness requirements, modify—
“(I) the amount of a covered loan described in subparagraph (A); or
“(II) the loan forgiveness amount with respect to a covered loan described in subparagraph (A).
“(2) Covered loans between $150,000 and $2,000,000
“(A) In general—Notwithstanding subsection (e), with respect to a covered loan made to an eligible recipient that is more than $150,000 and not more than $2,000,000—
“(i) the eligible recipient seeking loan forgiveness under this section—
“(I) is not required to submit the supporting documentation described in paragraph (1) or (2) of subsection (e) or the certification described in subsection (e)(3)(A);
“(II) shall retain—
“(aa) all employment records relevant to the application for loan forgiveness for the 4-year period following submission of the application; and
“(bb) all other supporting documentation relevant to the application for loan forgiveness for the 3-year period following submission of the application; and
“(III) may complete and submit any form related to borrower demographic information;
“(ii) review by the lender of an application submitted by the eligible recipient for loan forgiveness under this section shall be limited to whether the lender received a complete application, with all fields completed, initialed, or signed, as applicable; and
“(iii) the lender shall—
“(I) accept the application submitted by the eligible recipient for loan forgiveness under this section; and
“(II) submit the application to the Administrator.
“(B) Audit—The Administrator may—
“(i) review and audit covered loans described in subparagraph (A); and
“(ii) in the case of fraud, ineligibility, or other material noncompliance with applicable loan or loan forgiveness requirements, modify—
“(I) the amount of a covered loan described in subparagraph (A); or
“(II) the loan forgiveness amount with respect to a covered loan described in subparagraph (A).
“(3) Audit plan
“(A) In general—Not later than 30 days after the date of enactment of the Continuing the Paycheck Protection Program Act, the Administrator shall submit to the Committee on Small Business and Entrepreneurship of the Senate and the Committee on Small Business of the House of Representatives an audit plan that details—
“(i) the policies and procedures of the Administrator for conducting reviews and audits of covered loans; and
“(ii) the metrics that the Administrator shall use to determine which covered loans will be audited for each category of covered loans described in paragraphs (1) and (2).
“(B) Reports—Not later than 30 days after the date on which the Administrator submits the audit plan required under subparagraph (A), and each month thereafter, the Administrator shall submit to the Committee on Small Business and Entrepreneurship of the Senate and the Committee on Small Business of the House of Representatives a report on the review and audit activities of the Administrator under this subsection, which shall include—
“(i) the number of active reviews and audits;
“(ii) the number of reviews and audits that have been ongoing for more than 60 days; and
“(iii) any substantial changes made to the audit plan submitted under subparagraph (A).”
Group insurance payments as payroll costs— Section 7(a)(36)(A)(viii)(I)(aa)(EE) of the Small Business Act (15 U.S.C. 636(a)(36)(A)(viii)(I)(aa)(EE)) is amended by inserting “and other group insurance” before “benefits”.
Paycheck protection program second draw loans— Section 7(a) of the Small Business Act (15 U.S.C. 636(a)) is amended by adding at the end the following:
“(37) Paycheck protection program second draw loans
“(A) Definitions—In this paragraph—
“(i) the terms community financial institutions, credit union, eligible self-employed individual, insured depository institution, nonprofit organization, payroll costs, seasonal employer, and veterans organization have the meanings given those terms in paragraph (36), except that eligible entity shall be substituted for eligible recipient each place it appears in the definitions of those terms;
“(ii) the term covered loan means a loan made under this paragraph;
“(iii) the terms covered mortgage obligation, covered operating expenditure, covered property damage cost, covered rent obligation, covered supplier cost, covered utility payment, and covered worker protection expenditure have the meanings given those terms in section 1106(a) of the CARES Act (15 U.S.C. 9005(a));
“(iv) the term covered period means the period beginning on the date of the origination of a covered loan and ending on December 31, 2020;
“(v) the term eligible entity—
“(I) means any business concern, nonprofit organization, veterans organization, Tribal business concern, eligible self-employed individual, sole proprietor, independent contractor, or small agricultural cooperative that—
“(aa)
“(AA) with respect to a business concern, would qualify as a small business concern by the annual receipts size standard (if applicable) established by section 121.201 of title 13, Code of Federal Regulations, or any successor regulation; or
“(BB) if the entity does not qualify as a small business concern, meets the alternative size standard established under section 3(a)(5);
“(bb) employs not more than 300 employees; and
“(cc)
“(AA) except as provided in subitems (BB), (CC), and (DD), had gross receipts during the first or second quarter in 2020 that are not less than 35 percent less than the gross receipts of the entity during the same quarter in 2019;
“(BB) if the entity was not in business during the first or second quarter of 2019, but was in business during the third and fourth quarter of 2019, had gross receipts during the first or second quarter of 2020 that are less than 35 percent of the amount of the gross receipts of the entity during the third or fourth quarter of 2019;
“(CC) if the entity was not in business during the first, second, or third quarter of 2019, but was in business during the fourth quarter of 2019, had gross receipts during the first or second quarter of 2020 that are less than 35 percent of the amount of the gross receipts of the entity during the fourth quarter of 2019; or
“(DD) if the entity was not in business during 2019, but was in operation on February 15, 2020, had gross receipts during the second quarter of 2020 that are less than 35 percent of the amount of the gross receipts of the entity during the first quarter of 2020;
“(II) includes an organization described in subparagraph (D)(vii) of paragraph (36) that is eligible to receive a loan under that paragraph and that meets the requirements described in items (aa) and (cc) of subclause (I); and
“(III) does not include—
“(aa) an issuer, the securities of which are listed on an exchange registered a national securities exchange under section 6 of the Securities Exchange Act of 1934 (15 U.S.C. 78f);
“(bb) any entity that—
“(AA) is a type of business concern described in subsection (b), (c), (d), (e), (f), (h), (l) (m), (p), (q), (r), or (s) of section 120.110 of title 13, Code of Federal Regulations, or any successor regulation;
“(BB) is a type of business concern described in section 120.110(g) of title 13, Code of Federal Regulations, or any successor regulation, except as otherwise provided in the interim final rule of the Administration entitled “Business Loan Program Temporary Changes; Paycheck Protection Program—Additional Eligibility Criteria and Requirements for Certain Pledges of Loans” (85 Fed. Reg. 21747 (April 20, 2020));
“(CC) is a type of business concern described in section 120.110(i) of title 13, Code of Federal Regulations, or any successor regulation, except if the business concern is an organization described in paragraph (36)(D)(vii);
“(DD) is a type of business concern described in section 120.110(j) of title 13, Code of Federal Regulations, or any successor regulation, except as otherwise provided in the interim final rules of the Administration entitled “Business Loan Program Temporary Changes; Paycheck Protection Program—Eligibility of Certain Electric Cooperatives” (85 Fed. Reg. 29847 (May 19, 2020)) and “Business Loan Program Temporary Changes; Paycheck Protection Program—Eligibility of Certain Telephone Cooperatives” (85 Fed. Reg. 35550 (June 11, 2020)) or any other guidance or rule issued or that may be issued by the Administrator;
“(EE) is a type of business concern described in section 120.110(n) of title 13, Code of Federal Regulations, or any successor regulation, except as otherwise provided in the interim final rule of the Administration entitled “Business Loan Program Temporary Changes; Paycheck Protection Program—Additional Eligibility Revisions to First Interim Final Rule” (85 Fed. Reg. 38301 (June 26, 2020)) or any other guidance or rule issued or that may be issued by the Administrator;
“(FF) is a type of business concern described in section 120.110(o) of title 13, Code of Federal Regulations, or any successor regulation, except as otherwise provided in any guidance or rule issued or that may be issued by the Administrator; or
“(GG) is an entity that would be described in the subsections listed in subitems (AA) through (FF) if the entity were a business concern; or
“(HH) is assigned, or was approved for a loan under paragraph (36) with, a North American Industry Classification System code beginning with 52;
“(cc) any business concern or entity primarily engaged in political or lobbying activities, which shall include any entity that is organized for research or for engaging in advocacy in areas such as public policy or political strategy or otherwise describes itself as a think tank in any public documents; or
“(dd) any business concern or entity—
“(AA) for which an entity created in or organized under the laws of the People's Republic of China or the Special Administrative Region of Hong Kong, or that has significant operations in the People's Republic of China or the Special Administrative Region of Hong Kong, owns or holds, directly or indirectly, not less than 20 percent of the economic interest of the business concern or entity, including as equity shares or a capital or profit interest in a limited liability company or partnership; or
“(BB) that retains, as a member of the board of directors of the business concern, a person who is a resident of the People’s Republic of China;
“(vi) the terms exchange, issuer, and security have the meanings given those terms in section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)); and
“(vii) the term Tribal business concern means a Tribal business concern described in section 31(b)(2)(C).
“(B) Loans—Except as otherwise provided in this paragraph, the Administrator may guarantee covered loans to eligible entities under the same terms, conditions, and processes as a loan made under paragraph (36).
“(C) Maximum loan amount
“(i) In general—Except as otherwise provided in this subparagraph, the maximum amount of a covered loan made to an eligible entity is the lesser of—
“(I) the product obtained by multiplying—
“(aa) at the election of the eligible entity, the average total monthly payment for payroll costs incurred or paid by the eligible entity during—
“(AA) the 1-year period before the date on which the loan is made; or
“(BB) calendar year 2019; by
“(bb) 2.5; or
“(II) $2,000,000.
“(ii) Seasonal employers—The maximum amount of a covered loan made to an eligible entity that is a seasonal employer is the lesser of—
“(I) the product obtained by multiplying—
“(aa) at the election of the eligible entity, the average total monthly payments for payroll costs incurred or paid by the eligible entity—
“(AA) for a 12-week period beginning February 15, 2019 or March 1, 2019 and ending June 30, 2019; or
“(BB) for a consecutive 12-week period between May 1, 2019 and September 15, 2019; by
“(bb) 2.5; or
“(II) $2,000,000.
“(iii) New entities—The maximum amount of a covered loan made to an eligible entity that did not exist during the 1-year period preceding February 15, 2020 is the lesser of—
“(I) the product obtained by multiplying—
“(aa) the quotient obtained by dividing—
“(AA) the sum of the total monthly payments by the eligible entity for payroll costs paid or incurred by the eligible entity as of the date on which the eligible entity applies for the covered loan; by
“(BB) the number of months in which those payroll costs were paid or incurred; by
“(bb) 2.5; or
“(II) $2,000,000.
“(iv) Limit for multiple locations—With respect to an eligible entity with more than 1 physical location, the total amount of all covered loans shall be not more than $2,000,000.
“(v) Loan number limitation—An eligible entity may only receive 1 covered loan.
“(vi) 90 day rule for maximum loan amount—The maximum aggregate loan amount of loans guaranteed under this subsection that are approved for an eligible entity (including any affiliates) within 90 days of approval of another loan under this subsection for the eligible entity (including any affiliates) shall not exceed $10,000,000.
“(D) Exception from certain certification requirements—An eligible entity applying for a covered loan shall not be required to make the certification described in subclause (III) or (IV) of paragraph (36)(G)(i).
“(E) Fee waiver—With respect to a covered loan—
“(i) in lieu of the fee otherwise applicable under paragraph (23)(A), the Administrator shall collect no fee; and
“(ii) in lieu of the fee otherwise applicable under paragraph (18)(A), the Administrator shall collect no fee.
“(F) Eligible churches and religious organizations
“(i) Sense of congress—It is the sense of Congress that the interim final rule of the Administration entitled “Business Loan Program Temporary Changes; Paycheck Protection Program” (85 Fed. Reg. 20817 (April 15, 2020)) properly clarified the eligibility of churches and religious organizations for loans made under paragraph (36).
“(ii) Applicability of prohibition—The prohibition on eligibility established by section 120.110(k) of title 13, Code of Federal Regulations, or any successor regulation, shall not apply to a covered loan.
“(G) Gross receipts for nonprofit and veterans organizations—For purposes of calculating gross receipts under subparagraph (A)(v)(I)(cc) for an eligible entity that is a nonprofit organization, a veterans organization, or an organization described in subparagraph (A)(v)(II), gross receipts—
“(i) shall include proceeds from fundraising events, federated campaigns, gifts, donor-advised funds, and funds from similar sources; and
“(ii) shall not include—
“(I) Federal grants (excluding any loan forgiveness on loans received under paragraph (36) or this paragraph);
“(II) revenues from a supporting organization;
“(III) grants from private foundations that are disbursed over the course of more than 1 calendar year; or
“(IV) any contribution of property other than money, stocks, bonds, and other securities, provided that the non-cash contribution is not sold by the organization in a transaction unrelated to the tax-exempt purpose of the organization.
“(H) Loan forgiveness
“(i) In general—Except as otherwise provided in this subparagraph, an eligible entity shall be eligible for forgiveness of indebtedness on a covered loan in the same manner as an eligible recipient with respect to a loan made under paragraph (36), as described in section 1106 of the CARES Act (15 U.S.C. 9005).
“(ii) Forgiveness amount—An eligible entity shall be eligible for forgiveness of indebtedness on a covered loan in an amount equal to the sum of the following costs incurred or expenditures made during the covered period:
“(I) Payroll costs.
“(II) Any payment of interest on any covered mortgage obligation (which shall not include any prepayment of or payment of principal on a covered mortgage obligation).
“(III) Any covered operations expenditure.
“(IV) Any covered property damage cost.
“(V) Any payment on any covered rent obligation.
“(VI) Any covered utility payment.
“(VII) Any covered supplier cost.
“(VIII) Any covered worker protection expenditure.
“(iii) Limitation on forgiveness for all eligible entities—The forgiveness amount under this subparagraph shall be equal to the lesser of—
“(I) the amount described in clause (ii); and
“(II) the amount equal to the quotient obtained by dividing—
“(aa) the amount of the covered loan used for payroll costs during the covered period; and
“(bb) 0.60.
“(I) Lender eligibility—Except as otherwise provided in this paragraph, a lender approved to make loans under paragraph (36) may make covered loans under the same terms and conditions as in paragraph (36).
“(J) Reimbursement for loan processing and servicing—The Administrator shall reimburse a lender authorized to make a covered loan in an amount that is—
“(i) 3 percent of the principal amount of the financing of the covered loan up to $350,000; and
“(ii) 1 percent of the principal amount of the financing of the covered loan above $350,000, if applicable.
“(K) Set aside for small entities—Not less than $25,000,000,000 of the total amount of covered loans guaranteed by the Administrator shall be made to eligible entities with not more than 10 employees as of February 15, 2020.
“(L) Set aside for community financial institutions, small insured depository institutions, credit unions, and farm credit system institutions—Not less than $10,000,000,000 of the total amount of covered loans guaranteed by the Administrator shall be made by—
“(i) community financial institutions;
“(ii) insured depository institutions with consolidated assets of less than $10,000,000,000;
“(iii) credit unions with consolidated assets of less than $10,000,000,000; and
“(iv) institutions of the Farm Credit System chartered under the Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.) with consolidated assets of less than $10,000,000,000 (not including the Federal Agricultural Mortgage Corporation).
“(M) Publication of guidance—Not later than 10 days after the date of enactment of this paragraph, the Administrator shall issue guidance addressing barriers to accessing capital for minority, underserved, veteran, and women-owned business concerns for the purpose of ensuring equitable access to covered loans.
“(N) Standard operating procedure—The Administrator shall, to the maximum extent practicable, allow a lender approved to make covered loans to use existing program guidance and standard operating procedures for loans made under this subsection.
“(O) Prohibition on use of proceeds for lobbying activities—None of the proceeds of a covered loan may be used for—
“(i) lobbying activities, as defined in section 3 of the Lobbying Disclosure Act of 1995 (2 U.S.C. 1602);
“(ii) lobbying expenditures related to a State or local election; or
“(iii) expenditures designed to influence the enactment of legislation, appropriations, regulation, administrative action, or Executive order proposed or pending before Congress or any State government, State legislature, or local legislature or legislative body.”
Continued access to the paycheck protection program—
In general— Section 7(a)(36)(E)(ii) of the Small Business Act (15 U.S.C. 636(a)(36)(E)(ii)) is amended by striking “$10,000,000” and inserting “$2,000,000”.
Applicability of maximum loan amount calculation—
Definitions— In this paragraph, the terms covered loan and eligible recipient have the meanings given those terms in section 7(a)(36) of the Small Business Act (15 U.S.C. 636(a)(36)).
Applicability— The amendment made by paragraph (1) shall apply only with respect to a covered loan applied for by an eligible recipient on or after the date of enactment of this Act.
Increased ability for paycheck protection program borrowers to request an increase in loan amount due to updated regulations—
Definitions— In this subsection, the terms covered loan and eligible recipient have the meanings given those terms in section 7(a)(36) of the Small Business Act (15 U.S.C. 636(a)(36)).
Increased amount— Notwithstanding the interim final rule issued by the Administration entitled “Business Loan Program Temporary Changes; Paycheck Protection Program—Loan Increases” (85 Fed. Reg. 29842 (May 19, 2020)), an eligible recipient of a covered loan that is eligible for an increased covered loan amount as a result of any interim final rule that allows for covered loan increases may submit a request for an increase in the covered loan amount even if—
the initial covered loan amount has been fully disbursed; or
the lender of the initial covered loan has submitted to the Administration a Form 1502 report related to the covered loan.
Calculation of maximum loan amount for farmers and ranchers under the paycheck protection program—
In general— Section 7(a)(36) of the Small Business Act (15 U.S.C. 636(a)(36)), as amended by subsection (j) of this section, is amended—
in subparagraph (E), in the matter preceding clause (i), by striking “During” and inserting “Except as provided in subparagraph (T), during”; and
by adding at the end the following:
“(T) Calculation of maximum loan amount for farmers and ranchers
“(i) Definition—In this subparagraph, the term covered recipient means an eligible recipient that—
“(I) operates as a sole proprietorship or as an independent contractor, or is an eligible self-employed individual;
“(II) reports farm income or expenses on a Schedule F (or any equivalent successor schedule); and
“(III) was in business during the period beginning on February 15, 2019 and ending on June 30, 2019.
“(ii) No employees—With respect to covered recipient without employees, the maximum covered loan amount shall be the lesser of—
“(I) the sum of—
“(aa) the product obtained by multiplying—
“(AA) the gross income of the covered recipient in 2019, as reported on a Schedule F (or any equivalent successor schedule), that is not more than $100,000, divided by 12; and
“(BB) 2.5; and
“(bb) the outstanding amount of a loan under subsection (b)(2) that was made during the period beginning on January 31, 2020 and ending on April 3, 2020 that the borrower intends to refinance under the covered loan, not including any amount of any advance under the loan that is not required to be repaid; or
“(II) $2,000,000.
“(iii) With employees—With respect to a covered recipient with employees, the maximum covered loan amount shall be calculated using the formula described in subparagraph (E), except that the gross income of the covered recipient described in clause (ii)(I)(aa)(AA) of this subparagraph, as divided by 12, shall be added to the sum calculated under subparagraph (E)(i)(I).
“(iv) Recalculation—A lender that made a covered loan to a covered recipient before the date of enactment of this subparagraph may, at the request of the covered recipient—
“(I) recalculate the maximum loan amount applicable to that covered loan based on the formula described in clause (ii) or (iii), as applicable, if doing so would result in a larger covered loan amount; and
“(II) provide the covered recipient with additional covered loan amounts based on that recalculation.”
Farm Credit System institutions—
Definition of Farm Credit System institution— In this subsection, the term Farm Credit System institution—
means an institution of the Farm Credit System chartered under the Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.); and
does not include the Federal Agricultural Mortgage Corporation.
Facilitation of participation in PPP and second draw loans—
Applicable rules— Solely with respect to loans under paragraphs (36) and (37) of section 7(a) of the Small Business Act (15 U.S.C. 636(a)), Farm Credit Administration regulations and guidance issued as of July 14, 2020, and compliance with such regulations and guidance, shall be deemed functionally equivalent to requirements referenced in section 3(a)(iii)(II) of the interim final rule of the Administration entitled “Business Loan Program Temporary Changes; Paycheck Protection Program” (85 Fed. Reg. 20811 (April 15, 2020)) or any similar requirement referenced in that interim final rule in implementing such paragraph (37).
Applicability of certain loan requirements— For purposes of making loans under paragraph (36) or (37) of section 7(a) of the Small Business Act (15 U.S.C. 636(a)) or forgiving those loans in accordance with section 1106 of the CARES Act (15 U.S.C. 9005) and subparagraph (H) of such paragraph (37), sections 4.13, 4.14, and 4.14A of the Farm Credit Act of 1971 (12 U.S.C. 2199, 2202, 2202a) (including regulations issued under those sections) shall not apply.
Risk weight—
In general— With respect to the application of Farm Credit Administration capital requirements, a loan described in clause (ii)—
shall receive a risk weight of zero percent; and
shall not be included in the calculation of any applicable leverage ratio or other applicable capital ratio or calculation.
Loans described— A loan referred to in clause (i) is—
a loan made by a Farm Credit Bank described in section 1.2(a) of the Farm Credit Act of 1971 (12 U.S.C. 2002(a)) to a Federal Land Bank Association, a Production Credit Association, or an agricultural credit association described in that section to make loans under paragraph (36) or (37) of section 7(a) of the Small Business Act (15 U.S.C. 636(a)) or forgive those loans in accordance with section 1106 of the CARES Act (15 U.S.C. 9005) and subparagraph (H) of such paragraph (37); or
a loan made by a Federal Land Bank Association, a Production Credit Association, an agricultural credit association, or the bank for cooperatives described in section 1.2(a) of the Farm Credit Act of 1971 (12 U.S.C. 2002(a)) under paragraph (36) or (37) of section 7(a) of the Small Business Act (15 U.S.C. 636(a)).
Reservation of loan guarantees— Section 7(a)(36)(S) of the Small Business Act (15 U.S.C. 636(a)(36)(S)) is amended—
in clause (i)—
in subclause (I), by striking “and” at the end;
in subclause (II), by striking the period at the end and inserting “; and”; and
by adding at the end the following:
“(III) institutions of the Farm Credit System chartered under the Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.) with consolidated assets of not less than $10,000,000,000 and less than $50,000,000,000.”
in clause (ii)—
in subclause (II), by striking “and” at the end;
in subclause (III), by striking the period at the end and inserting “; and”; and
by adding at the end the following:
“(IV) institutions of the Farm Credit System chartered under the Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.) with consolidated assets of less than $10,000,000,000.”
Definition of seasonal employer—
in clause (xi), by striking “and” at the end;
in clause (xii), by striking the period at the end and inserting “; and”; and
by adding at the end the following:
“(xiii) the term seasonal employer means an eligible recipient that—
“(I) does not operate for more than 7 months in any calendar year; or
“(II) during the preceding calendar year, had gross receipts for any 6 months of that year that were not more than 33.33 percent of the gross receipts of the employer for the other 6 months of that year.”
Loan forgiveness— Paragraph (12) of section 1106(a) of the CARES Act (15 U.S.C. 9005(a)), as so redesignated by subsection (d)(2) of this section, is amended to read as follows:
“(12) the terms payroll costs and seasonal employer have the meanings given those terms in section 7(a)(36) of the Small Business Act (15 U.S.C. 636(a)(36)).”
Eligibility of 501(c)(6) organizations for loans under the paycheck protection program— Section 7(a)(36)(D) of the Small Business Act (15 U.S.C. 636(a)(36)(D)) is amended—
in clause (v), by inserting “or whether an organization described in clause (vii) employs not more than 150 employees,” after “clause (i)(I),”;
in clause (vi), by inserting “, an organization described in clause (vii),” after “nonprofit organization”; and
by adding at the end the following:
“(vii) Eligibility for certain 501(c)(6) organizations
“(I) In general—Except as provided in subclause (II), any organization that is described in section 501(c)(6) of the Internal Revenue Code and that is exempt from taxation under section 501(a) of such Code (excluding professional sports leagues and organizations with the purpose of promoting or participating in a political campaign or other activity) shall be eligible to receive a covered loan if—
“(aa) the organization does not receive more than 10 percent of its receipts from lobbying activities;
“(bb) the lobbying activities of the organization do not comprise more than 10 percent of the total activities of the organization; and
“(cc) the organization employs not more than 150 employees.
“(II) Destination marketing organizations—Notwithstanding subclause (I), during the covered period, any destination marketing organization shall be eligible to receive a covered loan if—
“(aa) the destination marketing organization does not receive more than 10 percent of its receipts from lobbying activities;
“(bb) the lobbying activities of the destination marketing organization do not comprise more than 10 percent of the total activities of the organization;
“(cc) the destination marketing organization employs not more than 150 employees; and
“(dd) the destination marketing organization—
“(AA) is described in section 501(c) of the Internal Revenue Code and is exempt from taxation under section 501(a) of such Code; or
“(BB) is a quasi-governmental entity or is a political subdivision of a State or local government, including any instrumentality of those entities.”
Prohibition on use of loan proceeds for lobbying activities— Section 7(a)(36)(F) of the Small Business Act (15 U.S.C. 636(a)(36)(F)) is amended by adding at the end the following:
“(vi) Prohibition—None of the proceeds of a covered loan may be used for—
“(I) lobbying activities, as defined in section 3 of the Lobbying Disclosure Act of 1995 (2 U.S.C. 1602);
“(II) lobbying expenditures related to a State or local election; or
“(III) expenditures designed to influence the enactment of legislation, appropriations, regulation, administrative action, or Executive order proposed or pending before Congress or any State government, State legislature, or local legislature or legislative body.”
Effective date; applicability— The amendments made to paragraph (36) of section 7(a) of the Small Business Act (15 U.S.C. 636(a)) and title I of the CARES Act (Public Law 116–136) under this section shall be effective as if included in the CARES Act and shall apply to any loan made pursuant to section 7(a)(36) of the Small Business Act (15 U.S.C. 636(a)(36)).
Bankruptcy provisions—
In general— Section 364 of title 11, United States Code, is amended by adding at the end the following:
“(g)
“(1) The court, after notice and a hearing, may authorize a debtor in possession or a trustee that is authorized to operate the business of the debtor under section 1183, 1184, 1203, 1204, or 1304 of this title to obtain a loan under paragraph (36) or (37) of section 7(a) of the Small Business Act (15 U.S.C. 636(a)), and such loan shall be treated as a debt to the extent the loan is not forgiven in accordance with section 1106 of the CARES Act (15 U.S.C. 9005) or subparagraph (H) of such paragraph (37), as applicable, with priority equal to a claim of the kind specified in subsection (c)(1) of this section.
“(2) The trustee may incur debt described in paragraph (1) notwithstanding any provision in a contract, prior order authorizing the trustee to incur debt under this section, prior order authorizing the trustee to use cash collateral under section 363, or applicable law that prohibits the debtor from incurring additional debt.
“(3) The court shall hold a hearing within 7 days after the filing and service of the motion to obtain a loan described in paragraph (1). Notwithstanding the Federal Rules of Bankruptcy Procedure, at such hearing, the court may grant relief on a final basis.”
Allowance of administrative expenses— Section 503(b) of title 11, United States Code, is amended—
in paragraph (8)(B), by striking “and” at the end;
in paragraph (9), by striking the period at the end and inserting “; and”; and
by adding at the end the following:
“(10) any debt incurred under section 364(g)(1) of this title.”
Confirmation of plan for reorganization— Section 1191 of title 11, United States Code, is amended by adding at the end the following:
“(f) Special provision related to COVID–19 pandemic—Notwithstanding section 1129(a)(9)(A) of this title and subsection (e) of this section, a plan that provides for payment of a claim of a kind specified in section 503(b)(10) of this title may be confirmed under subsection (b) of this section if the plan proposes to make payments on account of such claim when due under the terms of the loan giving rise to such claim.”
Confirmation of plan for family farmers and fishermen— Section 1225 of title 11, United States Code, is amended by adding at the end the following:
“(d) Notwithstanding section 1222(a)(2) of this title and subsection (b)(1) of this section, a plan that provides for payment of a claim of a kind specified in section 503(b)(10) of this title may be confirmed if the plan proposes to make payments on account of such claim when due under the terms of the loan giving rise to such claim.”
Confirmation of plan for individuals— Section 1325 of title 11, United States Code, is amended by adding at the end the following:
“(d) Notwithstanding section 1322(a)(2) of this title and subsection (b)(1) of this section, a plan that provides for payment of a claim of a kind specified in section 503(b)(10) of this title may be confirmed if the plan proposes to make payments on account of such claim when due under the terms of the loan giving rise to such claim.”
Effective date; Sunset—
Effective date— The amendments made by paragraphs (1) through (5) shall—
take effect on the date on which the Administrator submits to the Director of the Executive Office for United States Trustees a written determination that, subject to satisfying any other eligibility requirements, any debtor in possession or trustee that is authorized to operate the business of the debtor under section 1183, 1184, 1203, 1204, or 1304 of title 11, United States Code, would be eligible for a loan under paragraphs (36) and (37) of section 7(a) of the Small Business Act (15 U.S.C. 636(a)); and
apply to any case pending on or commenced on or after the date described in clause (i).
Sunset—
In general— If the amendments made by this subsection take effect under subparagraph (A), effective on the date that is 2 years after the date of enactment of this Act—
section 364 of title 11, United States Code, is amended by striking subsection (g);
section 503(b) of title 11, United States Code, is amended—
in paragraph (8)(B), by adding “and” at the end;
in paragraph (9), by striking “; and” at the end and inserting a period; and
by striking paragraph (10);
section 1191 of title 11, United States Code, is amended by striking subsection (f);
section 1225 of title 11, United States Code, is amended by striking subsection (d); and
section 1325 of title 11, United States Code, is amended by striking subsection (d).
Applicability— Notwithstanding the amendments made by clause (i) of this subparagraph, if the amendments made by paragraphs (1), (2), (3), (4), and (5) take effect under subparagraph (A) of this paragraph, such amendments shall apply to any case under title 11, United States Code, commenced before the date that is 2 years after the date of enactment of this Act.
Oversight—
Compliance with oversight requirements—
In general— Except as provided in subparagraph (B), on and after the date of enactment of this Act, the Administrator shall comply with any data or information requests or inquiries made by the Comptroller General of the United States not later than 30 days (or such later date as the Comptroller General may specify) after receiving the request or inquiry.
Exception— If the Administrator is unable to comply with a request or inquiry described in subparagraph (A) within the 30-day period or, if applicable, later period described in that clause, the Administrator shall, during that 30-day (or later) period, submit to the Committee on Small Business and Entrepreneurship of the Senate and the Committee on Small Business of the House of Representatives a notification that includes a detailed justification for the inability of the Administrator to comply with the request or inquiry.
Testimony— Not later than the date that is 30 days after the date of enactment of this Act, and every quarter thereafter until the date that is 2 years after the date of enactment of this Act, the Administrator and the Secretary of the Treasury shall testify before the Committee on Small Business and Entrepreneurship of the Senate and the Committee on Small Business of the House of Representatives regarding implementation of this section and the amendments made by this section.
Conflicts of interest—
Definitions— In this subsection:
Controlling interest— The term controlling interest means owning, controlling, or holding not less than 20 percent, by vote or value, of the outstanding amount of any class of equity interest in an entity.
Covered entity—
Definition— The term covered entity means an entity in which a covered individual directly or indirectly holds a controlling interest.
Treatment of securities— For the purpose of determining whether an entity is a covered entity, the securities owned, controlled, or held by 2 or more individuals who are related as described in subparagraph (C)(ii) shall be aggregated.
Covered individual— The term covered individual means—
the President, the Vice President, the head of an Executive department, or a Member of Congress; and
the spouse, child, son-in-law, or daughter-in-law, as determined under applicable common law, of an individual described in clause (i).
Executive department— The term Executive department has the meaning given the term in section 101 of title 5, United States Code.
Member of congress— The term Member of Congress means a Member of the Senate or House of Representatives, a Delegate to the House of Representatives, and the Resident Commissioner from Puerto Rico.
Equity interest— The term equity interest means—
a share in an entity, without regard to whether the share is—
transferable; or
classified as stock or anything similar;
a capital or profit interest in a limited liability company or partnership; or
a warrant or right, other than a right to convert, to purchase, sell, or subscribe to a share or interest described in clause (i) or (ii), respectively.
Requirement— The principal executive officer and the principal financial officer, or individuals performing similar functions, of an entity seeking to enter a transaction made under paragraph (36) or (37) of section 7(a) of the Small Business Act (15 U.S.C. 636(a)), as added and amended by this section, shall, before that transaction is approved, disclose to the Administrator whether the entity is a covered entity.
Applicability— The requirement under paragraph (2)—
shall apply with respect to any transaction made under paragraph (36) or (37) of section 7(a) of the Small Business Act (15 U.S.C. 636(a)), as added and amended by this section, on or after the date of enactment of this Act; and
shall not apply with respect to—
any transaction described in subparagraph (A) that was made before the date of enactment of this Act; or
forgiveness under section 1106 of the CARES Act (15 U.S.C. 9005) or any other provision of law of any loan associated with any transaction described in subparagraph (A) that was made before the date of enactment of this Act.
Commitment authority and appropriations—
in paragraph (1)—
in the paragraph heading, by inserting “and second draw” after “PPP”;
by striking “August 8, 2020” and inserting “December 31, 2020”;
by striking “paragraph (36)” and inserting “paragraphs (36) and (37)”; and
by striking “$659,000,000,000” and inserting “$816,640,000,000”; and
by amending paragraph (2) to read as follows:
“(2) Other 7(a) loans—During fiscal year 2020, the amount authorized for commitments for section 7(a) of the Small Business Act (15 U.S.C. 636(a)) under the heading “Small Business Administration—Business Loans Program Account” in the Financial Services and General Government Appropriations Act, 2020 (division C of Public Law 116–193) shall apply with respect to any commitments under such section 7(a) other than under paragraphs (36) and (37) of such section 7(a).”
Direct appropriations—
New direct appropriations for PPP loans, second draw loans, and the MBDA—
PPP and second draw loans— There is appropriated, out of amounts in the Treasury not otherwise appropriated, for the fiscal year ending September 30, 2020, to remain available until September 30, 2021, for additional amounts—
$257,640,000,000 under the heading ‘‘Small Business Administration—Business Loans Program Account, CARES Act’’ for the cost of guaranteed loans as authorized under paragraph (36) and (37) of section 7(a) of the Small Business Act (15 U.S.C. 636(a)), as amended and added by this Act;
$10,000,000 under the heading ‘‘Department of Commerce—Minority Business Development Agency’’ for minority business centers of the Minority Business Development Agency to provide technical assistance to small business concerns; and
$50,000,000 under the heading “Small Business Administration—Salaries and Expenses” for the cost of carrying out reviews and audits of loans under subsection (l) of section 1106 of the CARES Act (15 U.S.C. 9005), as amended by this Act.
Availability of amounts appropriated for the Office of Inspector General— Section 1107(a)(3) of the CARES Act (15 U.S.C. 9006(a)(3)) is amended by striking “September 20, 2024” and inserting “expended”.
V Postal Service assistance
Sec. 5001 COVID–19 funding for the United States Postal Service
Section 6001 of the CARES Act (Public Law 116–136; 134 Stat. 281) is amended—
in the section heading, by striking “borrowing authority” and inserting “funding”;
by redesignating subsection (c) as subsection (e); and
by inserting after subsection (b) the following:
“(c) Availability of amounts; no repayment required—Notwithstanding subsection (b) or any agreement entered into between the Secretary of the Treasury and the Postal Service under that subsection, the Postal Service—
“(1) may only use amounts borrowed under that subsection if the Postal Service has less than $8,000,000,000 in cash on hand; and
“(2) shall not be required to repay the amounts borrowed under that subsection.
“(d) Certifications
“(1) Postal Regulatory Commission—The Postal Service shall certify in its quarterly and audited annual reports to the Postal Regulatory Commission under section 3654 of title 39, United States Code, and in conformity with the requirements of section 13 or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m, 78o(d)), any expenditures made using amounts borrowed under subsection (b) of this section.
“(2) Congress—Not later than 15 days after filing a report described in paragraph (1) with the Postal Regulatory Commission, the Postal Service shall submit a copy of the information required to be certified under that paragraph to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Reform of the House of Representatives.”
VI Educational support and child care
A Emergency education freedom grants; tax credits for contributions to eligible scholarship-granting organizations
Sec. 6001 Emergency education freedom grants
Definitions— In this section:
Eligible scholarship-granting organization— The term eligible scholarship-granting organization means—
an organization that—
is described in section 501(c)(3) of the Internal Revenue Code of 1986 and exempt from taxation under section 501(a) of such Code;
provides qualifying scholarships to individual elementary and secondary students who—
reside in the State in which the eligible scholarship-granting organization is recognized; or
in the case of funds provided to the Secretary of the Interior, attending elementary schools or secondary schools operated or funded by the Bureau of Indian Education;
allocates at least 90 percent of qualified contributions to qualifying scholarships on an annual basis; and
provides qualifying scholarships to—
more than 1 eligible student;
more than 1 eligible family; and
different eligible students attending more than 1 education provider;
an organization that—
is described in section 501(c)(3) of the Internal Revenue Code of 1986 and exempt from taxation under section 501(a) of such Code; and
pursuant to State law, was able, as of January 1, 2021, to receive contributions that are eligible for a State tax credit if such contributions are used by the organization to provide scholarships to individual elementary and secondary students, including scholarships for attending private schools; or
an organization identified by a Governor of a State to receive a subgrant from the State under subsection (d).
Emergency education freedom grant funds— The term emergency education freedom grant funds means the amount of funds available under subsection (b)(1) for this section that are not reserved under subsection (c)(1).
Qualified contribution— The term qualified contribution means a contribution of cash to any eligible scholarship-granting organization.
Qualified expense— The term qualified expense means any educational expense that is—
for an individual student’s elementary or secondary education, as recognized by the State; or
for the secondary education component of an individual elementary or secondary student’s career and technical education, as defined by section 3(5) of the Carl D. Perkins Career and Technical Education Act of 2006 (20 U.S.C. 2302(5)).
Qualifying scholarship— The term qualifying scholarship means a scholarship granted by an eligible scholarship-granting organization to an individual elementary or secondary student for a qualified expense.
Secretary— The term Secretary means the Secretary of Education.
State— The term State means each of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico.
Grants—
Program authorized— From the funds appropriated to carry out this section, the Secretary shall carry out subsection (c) and award emergency education freedom grants to States with approved applications, in order to enable the States to award subgrants to eligible scholarship-granting organizations under subsection (d).
Timing— The Secretary shall make the allotments required under this subsection by not later than 30 days after the date of enactment of this Act.
Reservation and allotments—
In general— From the amounts made available under subsection (b)(1), the Secretary shall—
reserve—
one-half of 1 percent for allotments for the United States Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands, to be distributed among those outlying areas on the basis of their relative need, as determined by the Secretary, in accordance with the purpose of this section; and
one-half of 1 percent of such amounts for the Secretary of the Interior, acting through the Bureau of Indian Education, to be used to provide subgrants described in subsection (d) to eligible scholarship-granting organizations that serve students attending elementary schools or secondary schools operated or funded by the Bureau of Indian Education; and
subject to paragraph (2), allot each State that submits an approved application under this section the sum of—
the amount that bears the same relation to 20 percent of the emergency education freedom grant funds as the number of individuals aged 5 through 17 in the State, as determined by the Secretary on the basis of the most recent satisfactory data, bears to the number of those individuals, as so determined, in all such States that submitted approved applications; and
an amount that bears the same relationship to 80 percent of the emergency education freedom grant funds as the number of individuals aged 5 through 17 from families with incomes below the poverty line in the State, as determined by the Secretary on the basis of the most recent satisfactory data, bears to the number of those individuals, as so determined, in all such States that submitted approved applications.
Minimum allotment— No State shall receive an allotment under this subsection for a fiscal year that is less than one-half of 1 percent of the amount of emergency education freedom grant funds available for such fiscal year.
Subgrants to eligible scholarship-Granting organizations—
In general— A State that receives an allotment under this section shall use the allotment to award subgrants, on a basis determined appropriate by the State, to eligible scholarship-granting organizations in the State.
Initial timing—
States with existing tax credit scholarship program— By not later than 30 days after receiving an allotment under subsection (c)(1)(B), a State with an existing, as of the date of application for an allotment under this section, tax credit scholarship program shall use not less than 50 percent of the allotment to award subgrants to eligible scholarship-granting organizations under subsection (a)(1)(B) in the State in proportion to the contributions received in calendar year 2019 that were eligible for a State tax credit if such contributions are used by the organization to provide scholarships to individual elementary and secondary students, including scholarships for attending private schools.
States without tax credit scholarship programs— By not later than 60 days after receiving an allotment under subsection (c)(1)(B), a State without a tax credit scholarship program shall use not less than 50 percent of the allotment to award subgrants to eligible scholarship-granting organizations in the State.
Uses of funds— An eligible scholarship-granting organization that receives a subgrant under this subsection—
may reserve not more than 5 percent of the subgrant funds for public outreach, student and family support activities, and administrative expenses related to the subgrant; and
shall use not less than 95 percent of the subgrant funds to provide qualifying scholarships for qualified expenses only to individual elementary school and secondary school students who reside in the State in which the eligible scholarship-granting organization is recognized.
Reallocation— A State shall return to the Secretary any amounts of the allotment received under this section that the State does not award as subgrants under subsection (d) by March 30, 2021, and the Secretary shall reallocate such funds to the remaining eligible States in accordance with subsection (c)(1)(B).
Rules of construction—
In general— A qualifying scholarship awarded to a student from funds provided under this section shall not be considered assistance to the school or other educational provider that enrolls, or provides educational services to, the student or the student's parents.
Exclusion from income—
Income taxes— For purposes of the Internal Revenue Code of 1986, gross income shall not include any amount received by an individual as a qualifying scholarship.
Federally funded programs— Any amount received by an individual as a qualifying scholarship shall not be taken into account as income or resources for purposes of determining the eligibility of such individual or any other individual for benefits or assistance, or the amount or extent of such benefits or assistance, under any Federal program or under any State or local program financed in whole or in part with Federal funds.
Prohibition of control over nonpublic education providers—
Nothing in this section shall be construed to permit, allow, encourage, or authorize any Federal control over any aspect of any private, religious, or home education provider, whether or not a home education provider is treated as a private school or home school under State law.
This section shall not be construed to exclude private, religious, or home education providers from participation in programs or services under this section.
Nothing in this section shall be construed to permit, allow, encourage, or authorize a State to mandate, direct, or control any aspect of a private or home education provider, regardless of whether or not a home education provider is treated as a private school under State law.
No participating State shall exclude, discriminate against, or otherwise disadvantage any education provider with respect to programs or services under this section based in whole or in part on the provider’s religious character or affiliation, including religiously based or mission-based policies or practices.
Parental rights to use scholarships— No participating State shall disfavor or discourage the use of qualifying scholarships for the purchase of elementary and secondary education services, including those services provided by private or nonprofit entities, such as faith-based providers.
State and local authority— Nothing in this section shall be construed to modify a State or local government’s authority and responsibility to fund education.
Authorization of appropriations— There are authorized to be appropriated to carry out this section such sums as may be necessary.
Sec. 6002 Tax credits for contributions to eligible scholarship-granting organizations
Credit for individuals— Subpart A of part IV of subchapter A of chapter 1 of the Internal Revenue Code of 1986 is amended by adding after section 25D the following new section:
“25E. Contributions to eligible scholarship-granting organizations
“(a) Allowance of credit—Subject to section 6003(c) of the Delivering Immediate Relief to America’s Families, Schools and Small Businesses Act, in the case of an individual, there shall be allowed as a credit against the tax imposed by this chapter for the taxable year an amount equal to the sum of any qualified contributions made by the taxpayer during the taxable year.
“(b) Amount of credit—The credit allowed under subsection (a) for any taxable year shall not exceed 10 percent of the taxpayer’s adjusted gross income for the taxable year.
“(c) Definitions—For purposes of this section—
“(1) Eligible scholarship-granting organization—The term eligible scholarship-granting organization means—
“(A) an organization that—
“(i) is described in section 501(c)(3) and exempt from taxation under section 501(a),
“(ii) provides qualifying scholarships to individual elementary and secondary students who—
“(I) reside in the State in which the eligible scholarship-granting organization is recognized, or
“(II) in the case of the Bureau of Indian Education, are members of a federally recognized tribe,
“(iii) a State identifies to the Secretary as an eligible scholarship-granting organization under section 6003(c)(5)(B) of the Delivering Immediate Relief to America’s Families, Schools and Small Businesses Act,
“(iv) allocates at least 90 percent of qualified contributions to qualifying scholarships on an annual basis, and
“(v) provides qualifying scholarships to—
“(I) more than 1 eligible student,
“(II) more than 1 eligible family, and
“(III) different eligible students attending more than 1 education provider, or
“(B) an organization that—
“(i) is described in section 501(c)(3) and exempt from taxation under section 501(a), and
“(ii) pursuant to State law, was able, as of January 1, 2021, to receive contributions that are eligible for a State tax credit if such contributions are used by the organization to provide scholarships to individual elementary and secondary students, including scholarships for attending private schools.
“(2) Qualified contribution—The term qualified contribution means a contribution of cash to any eligible scholarship-granting organization.
“(3) Qualified expense—The term qualified expense means any educational expense that is—
“(A) for an individual student’s elementary or secondary education, as recognized by the State, or
“(B) for the secondary education component of an individual elementary or secondary student’s career and technical education, as defined by section 3(5) of the Carl D. Perkins Career and Technical Education Act of 2006 (20 U.S.C. 2302(5)).
“(4) Qualifying scholarship—The term qualifying scholarship means a scholarship granted by an eligible scholarship-granting organization to an individual elementary or secondary student for a qualified expense.
“(5) State—The term State means each of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the outlying areas (as defined in section 1121(c) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6331(c)), and the Department of the Interior (acting through the Bureau of Indian Education).
“(d) Rules of construction
“(1) In general—A qualifying scholarship awarded to a student from the proceeds of a qualified contribution under this section shall not be considered assistance to the school or other educational provider that enrolls, or provides educational services to, the student or the student's parents.
“(2) Exclusion from income—Gross income shall not include any amount received by an individual as a qualifying scholarship and such amount shall not be taken into account as income or resources for purposes of determining the eligibility of such individual or any other individual for benefits or assistance, or the amount or extent of such benefits or assistance, under any Federal program or under any State or local program financed in whole or in part with Federal funds.
“(3) Prohibition of control over nonpublic education providers
“(A)
“(i) Nothing in this section shall be construed to permit, allow, encourage, or authorize any Federal control over any aspect of any private, religious, or home education provider, whether or not a home education provider is treated as a private school or home school under State law.
“(ii) This section shall not be construed to exclude private, religious, or home education providers from participation in programs or services under this section.
“(B) Nothing in this section shall be construed to permit, allow, encourage, or authorize an entity submitting a list of eligible scholarship-granting organizations on behalf of a State pursuant to section 6003(c)(5) of the Delivering Immediate Relief to America’s Families, Schools and Small Businesses Act to mandate, direct, or control any aspect of a private or home education provider, regardless of whether or not a home education provider is treated as a private school under State law.
“(C) No participating State or entity acting on behalf of a State pursuant to section 6003(c)(5) of the Delivering Immediate Relief to America’s Families, Schools and Small Businesses Act shall exclude, discriminate against, or otherwise disadvantage any education provider with respect to programs or services under this section based in whole or in part on the provider’s religious character or affiliation, including religiously-based or mission-based policies or practices.
“(4) Parental rights to use scholarships—No participating State or entity acting on behalf of a State pursuant to section 6003(c)(5) of the Delivering Immediate Relief to America’s Families, Schools and Small Businesses Act shall disfavor or discourage the use of qualifying scholarships for the purchase of elementary and secondary education services, including those services provided by private or nonprofit entities, such as faith-based providers.
“(5) State and local authority—Nothing in this section shall be construed to modify a State or local government’s authority and responsibility to fund education.
“(e) Denial of double benefit—The Secretary shall prescribe such regulations or other guidance to ensure that the sum of the tax benefits provided by Federal, State, or local law for a qualified contribution receiving a Federal tax credit in any taxable year does not exceed the sum of the qualified contributions made by the taxpayer for the taxable year.
“(f) Carryforward of credit—If a tax credit allowed under this section is not fully used within the applicable taxable year because of insufficient tax liability on the part of the taxpayer, the unused amount may be carried forward for a period not to exceed 5 years.
“(g) Election—This section shall apply to a taxpayer for a taxable year only if the taxpayer elects to have this section apply for such taxable year.
“(h) Alternative minimum tax—For purposes of calculating the alternative minimum tax under section 55, a taxpayer may use any credit received for a qualified contribution under this section.
“(i) Termination—This section shall not apply to any contributions made in taxable years beginning after December 31, 2022.”
Clerical amendment— The table of sections for subpart A of part IV of subchapter A of chapter 1 of the Internal Revenue Code of 1986 is amended by inserting after the item relating to section 25D the following new item:
Credit for corporations— Subpart D of part IV of subchapter A of chapter 1 of the Internal Revenue Code of 1986 is amended by adding at the end the following new section:
“45U. Contributions to eligible scholarship-granting organizations
“(a) Allowance of credit—Subject to section 6003(c) of the Delivering Immediate Relief to America’s Families, Schools and Small Businesses Act, for purposes of section 38, in the case of a domestic corporation, there shall be allowed as a credit against the tax imposed by this chapter for the taxable year an amount equal to the sum of any qualified contributions (as defined in section 25E(c)(2)) made by such corporation during the taxable year.
“(b) Amount of credit—The credit allowed under subsection (a) for any taxable year shall not exceed 5 percent of the taxable income (as defined in section 170(b)(2)(D)) of the domestic corporation for such taxable year.
“(c) Additional provisions—For purposes of this section, any qualified contributions made by a domestic corporation shall be subject to the provisions of section 25E (including subsection (d) of such section), to the extent applicable.
“(d) Election—This section shall apply to a taxpayer for a taxable year only if the taxpayer elects to have this section apply for such taxable year.
“(e) Termination—This section shall not apply to any contributions made in taxable years beginning after December 31, 2022.”
Credit part of general business credit— Section 38(b) is amended—
by striking “plus” at the end of paragraph (32);
by striking the period at the end of paragraph (33) and inserting “, plus”; and
by adding at the end the following new paragraph:
“(34) the credit for qualified contributions determined under section 45U(a).”
Clerical amendment— The table of sections for subpart D of part IV of subchapter A of chapter 1 is amended by adding at the end the following new item:
Effective date— The amendments made by this section shall apply to taxable years beginning after December 31, 2020.
Sec. 6003 Education Freedom Scholarships web portal and administration
In general— The Secretary of the Treasury shall, in coordination with the Secretary of Education, establish, host, and maintain a web portal that—
lists all eligible scholarship-granting organizations;
enables a taxpayer to make a qualifying contribution to one or more eligible scholarship-granting organizations and to immediately obtain both a pre-approval of a tax credit for that contribution and a receipt for tax filings;
provides information about the tax benefits under sections 25E and 45U of the Internal Revenue Code of 1986; and
enables a State to submit and update information about its programs and its eligible scholarship-granting organizations for informational purposes only, including information on—
student eligibility;
allowable educational expenses;
the types of allowable education providers;
the percentage of funds an organization may use for program administration; and
the percentage of total contributions the organization awards in a calendar year.
Nonportal contributions— A taxpayer may opt to make a contribution directly to an eligible scholarship-granting organization, instead of through the web portal described in subsection (a), provided that the taxpayer, or the eligible scholarship-granting organization on behalf of the taxpayer, applies for, and receives pre-approval for a tax credit from the Secretary of the Treasury in coordination with the Secretary of Education.
National and State limitations on credits—
National limitation— For each fiscal year, the total amount of qualifying contributions for which a credit is allowed under sections 25E and 45U of the Internal Revenue Code of 1986 shall not exceed $5,000,000,000.
Allocation of limitation—
Initial allocations— For each calendar year, with respect to the limitation under paragraph (1), the Secretary of the Treasury, in consultation with the Secretary of Education, shall—
allocate to each State an amount equal to the sum of the qualifying contributions made in the State in the previous year; and
from any amounts remaining following allocations made under clause (i), allocate to each participating State an amount equal to the sum of—
an amount that bears the same relationship to 20 percent of such remaining amount as the number of individuals aged 5 through 17 in the State, as determined by the Secretary of Education on the basis of the most recent satisfactory data, bears to the number of those individuals in all such States, as so determined; and
an amount that bears the same relationship to 80 percent of such remaining amount as the number of individuals aged 5 through 17 from families with incomes below the poverty line in the State, as determined by the Secretary of Education, on the basis of the most recent satisfactory data, bears to the number of those individuals in all such States, as so determined.
Minimum allocation— Notwithstanding subparagraph (A), no State receiving an allocation under this section may receive less than 1/2 of 1 percent of the amount allocated for a fiscal year.
Allowable partnerships— A State may choose to administer the allocation it receives under paragraph (2) in partnership with one or more States, provided that the eligible scholarship-granting organizations in each partner State serve students who reside in all States in the partnership.
Total allocation— A State’s allocation, for any fiscal year, is the sum of the amount determined for such State under subparagraphs (A) and (B) of paragraph (2).
Allocation and adjustments—
Initial allocation to States— Not later than November 1 of the year preceding a year for which there is a national limitation on credits under paragraph (1) (referred to in this section as the “applicable year”), or as early as practicable with respect to the first year, the Secretary of the Treasury shall announce the State allocations under paragraph (2) for the applicable year.
List of eligible scholarship-granting organizations—
In general— Not later than January 1 of each applicable year, or as early as practicable with respect to the first year, each State shall provide the Secretary of the Treasury a list of eligible scholarship-granting organizations, including a certification that the entity submitting the list on behalf of the State has the authority to perform this function.
Rule of construction— Neither this section nor any other Federal law shall be construed as limiting the entities that may submit the list on behalf of a State.
Reallocation of unclaimed credits— The Secretary of the Treasury shall reallocate a State’s allocation to other States, in accordance with paragraph (2), if the State—
chooses not to identify scholarship-granting organizations under subparagraph (B) in any applicable year; or
does not have an existing eligible scholarship-granting organization.
Reallocation— On or after April 1 of any applicable year, the Secretary of the Treasury may reallocate, to one or more other States that have eligible scholarship-granting organizations in the States, without regard to paragraph (2), the allocation of a State for which the State’s allocation has not been claimed.
Definitions— Any term used in this section which is also used in section 25E of the Internal Revenue Code of 1986 shall have the same meaning as when used in such section.
Sec. 6004 529 account funding for homeschool and additional elementary and secondary expenses
by striking “Any reference” and inserting
“(A) In general—Any reference”
by adding at the end the following new subparagraphs:
“(B) Additional expenses—In the case of any distribution made after the date of the enactment of the Delivering Immediate Relief to America’s Families, Schools and Small Businesses Act and before January 1, 2023, any reference in this section to the term qualified higher education expense shall include a reference to the following expenses in connection with enrollment or attendance at, or for students enrolled at or attending, an elementary or secondary public, private, or religious school:
“(i) Curriculum and curricular materials.
“(ii) Books or other instructional materials.
“(iii) Online educational materials.
“(iv) Tuition for tutoring or educational classes outside of the home, including at a tutoring facility, but only if the tutor or instructor is not related to the student and—
“(I) is licensed as a teacher in any State,
“(II) has taught at an eligible educational institution, or
“(III) is a subject matter expert in the relevant subject.
“(v) Fees for a nationally standardized norm-referenced achievement test, an advanced placement examination, or any examinations related to college or university admission.
“(vi) Fees for dual enrollment in an institution of higher education.
“(vii) Educational therapies for students with disabilities provided by a licensed or accredited practitioner or provider, including occupational, behavioral, physical, and speech-language therapies.
“(C) Treatment of homeschool expenses—In the case of any distribution made after the date of the enactment of the Delivering Immediate Relief to America’s Families, Schools and Small Businesses Act and before January 1, 2023, the term qualified higher education expense shall include expenses for the purposes described in subparagraphs (A) and (B) in connection with a homeschool (whether treated as a homeschool or a private school for purposes of applicable State law).”
Effective date— The amendment made by this section shall apply to distributions made after the date of the enactment of this Act.
B Back to Work Child Care grants
Sec. 6101 Back to Work Child Care grants
Purpose— The purpose of this section is to support the recovery of the United States economy by providing assistance to aid in reopening child care programs, and maintaining the availability of child care in the United States, so that parents can access safe care and return to work.
Definitions— In this section:
Covid–19 public health emergency— The term COVID–19 public health emergency means the public health emergency declared by the Secretary of Health and Human Services under section 319 of the Public Health Service Act (42 U.S.C. 247d) on January 31, 2020, with respect to COVID–19, including any renewal of such declaration.
Eligible child care provider— The term eligible child care provider means—
an eligible child care provider as defined in section 658P(6)(A) of the Child Care and Development Block Grant Act of 1990 (42 U.S.C. 9858n(6)(A)); and
a child care provider that—
is license-exempt and operating legally in the State;
is not providing child care services to relatives; and
satisfies State and local requirements, including those referenced in section 658E(c)(2)(I) of the Child Care and Development Block Grant Act of 1990 ((42 U.S.C. 9858c)(c)(2)(I)).
Indian tribe; tribal organization— The terms Indian tribe and tribal organization have the meanings given the terms in section 658P of the Child Care and Development Block Grant Act of 1990 (42 U.S.C. 9858n).
Lead agency— The term lead agency has the meaning given the term in section 658P of the Child Care and Development Block Grant Act of 1990 (42 U.S.C. 9858n).
Qualified child care provider— The term qualified child care provider means an eligible child care provider with an application approved under subsection (g) for the program involved.
Secretary— The term Secretary means the Secretary of Health and Human Services.
State— The term State has the meaning given the term in section 658P of the Child Care and Development Block Grant Act of 1990 (42 U.S.C. 9858n).
Grants for child care programs— From the funds appropriated to carry out this section, the Secretary shall make Back to Work Child Care grants to States, Indian tribes, and tribal organizations, that submit notices of intent to provide assurances under subsection (d)(2). The grants shall provide for subgrants to qualified child care providers, for a transition period of not more than 9 months to assist in paying for fixed costs and increased operating expenses due to COVID–19, and to reenroll children in an environment that supports the health and safety of children and staff.
Process for allocation of funds—
Allocation— Any funds that are appropriated to carry out this section shall be distributed by the Secretary to the Administration for Children and Families for distribution under the Child Care and Development Block Grant Act of 1990 (42 U.S.C. 9857 et seq.) in accordance with subsection (e)(2) of this section.
Notice— Not later than 7 days after funds are appropriated to carry out this section, the Secretary shall provide to States, Indian tribes, and tribal organizations a notice of funding availability, for Back to Work Child Care grants under subsection (c) from allotments and payments under subsection (e)(2). The Secretary shall issue a notice of the funding allocations for each State, Indian tribe, and tribal organization not later than 14 days after funds are appropriated to carry out this section.
Notice of intent— Not later than 14 days after issuance of a notice of funding allocations under paragraph (1), a State, Indian tribe, or tribal organization that seeks such a grant shall submit to the Secretary a notice of intent to provide assurances for such grant. The notice of intent shall include a certification that the State, Indian tribe, or tribal organization will repay the grant funds if such State, Indian tribe, or tribal organization fails to provide assurances that meet the requirements of subsection (f) or to comply with such an assurance.
Grants to lead agencies— The Secretary may make grants under subsection (c) to the lead agency of each State, Indian tribe, or tribal organization, upon receipt of the notice of intent to provide assurances for such grant.
Provision of assurances— Not later than 15 days after receiving the grant, the State, Indian tribe, or tribal organization shall provide assurances that meet the requirements of subsection (f).
Federal reservation; allotments and payments—
Reservation— The Secretary shall reserve not more than 1 percent of the amount appropriated to carry out this section to pay for the costs of the Federal administration of this section. The amount appropriated to carry out this section and reserved under this paragraph shall remain available through fiscal year 2021.
Allotments and payments— The Secretary shall use the remaining portion of such amount to make allotments and payments, to States, Indian tribes, and tribal organizations that submit such a notice of intent to provide assurances, in accordance with paragraphs (1) and (2) of subsection (a), and subsection (b), of section 658O of the Child Care and Development Block Grant Act of 1990 (42 U.S.C. 9858m), for the grants described in subsection (c).
Assurances— A State, Indian tribe, or tribal organization that receives a grant under subsection (c) shall provide to the Secretary assurances that the lead agency will—
require as a condition of subgrant funding under subsection (g) that each eligible child care provider applying for a subgrant from the lead agency—
has been an eligible child care provider in continuous operation and serving children through a child care program immediately prior to March 1, 2020;
agree to follow all applicable State, local, and tribal health and safety requirements and, if applicable, enhanced protocols for child care services and related to COVID–19 or another health or safety condition;
agree to comply with the documentation and reporting requirements under subsection (h); and
certify in good faith that the child care program of the provider will remain open for not less than 1 year after receiving such a subgrant, unless such program is closed due to extraordinary circumstances, including a state of emergency declared by the Governor or a major disaster or emergency declared by the President under section 401 or 501, respectively, of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170, 5191);
ensure eligible child care providers in urban, suburban, and rural areas can readily apply for and access funding under this section, which shall include the provision of technical assistance either directly or through resource and referral agencies or staffed family child care provider networks;
ensure that subgrant funds are made available to eligible child care providers regardless of whether the eligible child care provider is providing services for which assistance is made available under the Child Care and Development Block Grant Act of 1990 (42 U.S.C. 9857 et seq.) at the time of application for a subgrant;
through at least December 31, 2020, continue to expend funds provided under the Child Care and Development Block Grant Act of 1990 (42 U.S.C. 9857 et seq.) for the purpose of continuing payments and assistance to qualified child care providers on the basis of applicable reimbursements prior to March 2020;
undertake a review of burdensome State, local, and tribal regulations and requirements that hinder the opening of new licensed child care programs to meet the needs of the working families in the State or tribal community, as applicable;
make available to the public, which shall include, at a minimum, posting to an internet website of the lead agency—
notice of funding availability through subgrants for qualified child care providers under this section; and
the criteria for awarding subgrants for qualified child care providers, including the methodology the lead agency used to determine and disburse funds in accordance with subparagraphs (D) and (E) of subsection (g)(4); and
ensure the maintenance of a delivery system of child care services throughout the State that provides for child care in a variety of settings, including the settings of family child care providers.
Lead agency use of funds—
In general— A lead agency that receives a Back to Work Child Care grant under this section—
shall use a portion that is not less than 94 percent of the grant funds to award subgrants to qualified child care providers as described in the lead agency’s assurances pursuant to subsection (f);
shall reserve not more than 6 percent of the funds to—
use not less than 1 percent of the funds to provide technical assistance and support in applying for and accessing funding through such subgrants to eligible child care providers, including to rural providers, family child care providers, and providers with limited administrative capacity; and
use the remainder of the reserved funds to—
administer subgrants to qualified child care providers under paragraph (4), which shall include monitoring the compliance of qualified child care providers with applicable State, local, and tribal health and safety requirements; and
comply with the reporting and documentation requirements described in subsection (h); and
shall not make more than 1 subgrant under paragraph (4) to a child care provider, except as described in clause (ii); and
may make multiple subgrants to a qualified child care provider, if the lead agency makes each subgrant individually for 1 child care program operated by the provider and the funds from the multiple subgrants are not pooled for use for more than 1 of the programs.
Role of third party— The lead agency may designate a third party, such as a child care resource and referral agency, to carry out the responsibilities of the lead agency, and oversee the activities conducted by qualified child care providers under this subsection.
Obligation and return of funds—
Obligation—
In general— The lead agency shall obligate at least 50 percent of the grant funds in the portion described in paragraph (1)(A) for subgrants to qualified child care providers by the day that is 6 months after the date of enactment of this Act.
Waivers— At the request of a State, Indian tribe, or tribal organization, and for good cause shown, the Secretary may waive the requirement under clause (i) for the State, Indian tribe, or tribal organization.
Return of funds— Not later than the date that is 12 months after a grant is awarded to a lead agency in accordance with this section, the lead agency shall return to the Secretary any of the grant funds that are not obligated by the lead agency by such date. The Secretary shall return any funds received under this subparagraph to the Treasury of the United States.
Subgrants—
In general— A lead agency that receives a grant under subsection (c) shall make subgrants to qualified child care providers to assist in paying for fixed costs and increased operating expenses, for a transition period of not more than 9 months, so that parents have a safe place for their children to receive child care as the parents return to the workplace.
Use of funds— A qualified child care provider may use subgrant funds for—
sanitation and other costs associated with cleaning the facility, including deep cleaning in the case of an outbreak of COVID–19, of a child care program used to provide child care services;
recruiting, retaining, and compensating child care staff, including providing professional development to the staff related to child care services and applicable State, local, and tribal health and safety requirements and, if applicable, enhanced protocols for child care services and related to COVID–19 or another health or safety condition;
paying for fixed operating costs associated with providing child care services, including the costs of payroll, the continuation of existing (as of March 1, 2020) employee benefits, mortgage or rent, utilities, and insurance;
acquiring equipment and supplies (including personal protective equipment) necessary to provide child care services in a manner that is safe for children and staff in accordance with applicable State, local, and tribal health and safety requirements;
replacing materials that are no longer safe to use as a result of the COVID–19 public health emergency;
making facility changes and repairs to address enhanced protocols for child care services related to COVID–19 or another health or safety condition, to ensure children can safely occupy a child care facility;
purchasing or updating equipment and supplies to serve children during nontraditional hours;
adapting the child care program or curricula to accommodate children who have not had recent access to a child care setting;
carrying out any other activity related to the child care program of a qualified child care provider; and
reimbursement of expenses incurred before the provider received a subgrant under this paragraph, if the use for which the expenses are incurred is described in any of clauses (i) though (ix) and is disclosed in the subgrant application for such subgrant.
Subgrant application— To be qualified to receive a subgrant under this paragraph, an eligible child care provider shall submit an application to the lead agency in such form and containing such information as the lead agency may reasonably require, including—
a budget plan that includes—
information describing how the eligible child care provider will use the subgrant funds to pay for fixed costs and increased operating expenses, including, as applicable, payroll, employee benefits, mortgage or rent, utilities, and insurance, described in subparagraph (B)(iii);
data on current operating capacity, taking into account previous operating capacity for a period of time prior to the COVID–19 public health emergency, and updated group size limits and staff-to-child ratios;
child care enrollment, attendance, and revenue projections based on current operating capacity and previous enrollment and revenue for the period described in subclause (II); and
a demonstration of how the subgrant funds will assist in promoting the long-term viability of the eligible child care provider and how the eligible child care provider will sustain its operations after the cessation of funding under this section;
assurances that the eligible child care provider will—
report to the lead agency, before every month for which the subgrant funds are to be received, data on current financial characteristics, including revenue, and data on current average enrollment and attendance;
not artificially suppress revenue, enrollment, or attendance for the purposes of receiving subgrant funding;
provide the necessary documentation under subsection (h) to the lead agency, including providing documentation of expenditures of subgrant funds; and
implement all applicable State, local, and tribal health and safety requirements and, if applicable, enhanced protocols for child care services and related to COVID–19 or another health or safety condition; and
a certification in good faith that the child care program will remain open for not less than 1 year after receiving a subgrant under this paragraph, unless such program is closed due to extraordinary circumstances described in subsection (f)(1)(D).
Subgrant disbursement— In providing funds through a subgrant under this paragraph—
the lead agency shall—
disburse such subgrant funds to a qualified child care provider in installments made not less than once monthly;
disburse a subgrant installment for a month after the qualified child care provider has provided, before that month, the enrollment, attendance, and revenue data required under subparagraph (C)(ii)(I) and, if applicable, current operating capacity data required under subparagraph (C)(i)(II); and
make subgrant installments to any qualified child care provider for a period of not more than 9 months; and
the lead agency may, notwithstanding subparagraph (E)(i), disburse an initial subgrant installment to a provider in a greater amount than that subparagraph provides for, and adjust the succeeding installments, as applicable.
Subgrant installment amount— The lead agency—
shall determine the amount of a subgrant installment under this paragraph by basing the amount on—
at a minimum, the fixed costs associated with the provision of child care services by a qualified child care provider; and
at the election of the lead agency, an additional amount determined by the State, for the purposes of assisting qualified child care providers with, as applicable, increased operating costs and lost revenue, associated with the COVID–19 public health emergency; and
any other methodology that the lead agency determines to be appropriate, and which is disclosed in reporting submitted by the lead agency under subsection (f)(6)(B);
shall ensure that, for any period for which subgrant funds are disbursed under this paragraph, no qualified child care provider receives a subgrant installment that when added to current revenue for that period exceeds the revenue for the corresponding period 1 year prior; and
may factor in decreased operating capacity due to updated group size limits and staff-to-child ratios, in determining subgrant installment amounts.
Repayment of subgrant funds— A qualified child care provider that receives a subgrant under this paragraph shall be required to repay the subgrant funds if the lead agency determines that the provider fails to provide the assurances described in subparagraph (C)(ii)(II), or to comply with such an assurance.
Supplement not supplant— Amounts made available to carry out this section shall be used to supplement and not supplant other Federal, State, tribal, and local public funds expended to provide child care services, including funds provided under the Child Care and Development Block Grant Act of 1990 (42 U.S.C. 9857 et seq.) and State and tribal child care programs.
Documentation and reporting requirements—
Documentation— A State, Indian tribe, or tribal organization receiving a grant under subsection (c) shall provide documentation of any State or tribal expenditures from grant funds received under subsection (c) in accordance with section 658K(b) of the Child Care Development Block Grant Act of 1990 (42 U.S.C. 9858i(b)), and to the independent entity described in that section.
Reports—
Lead agency report— A lead agency receiving a grant under subsection (c) shall, not later than 12 months after receiving such grant, submit a report to the Secretary that includes for the State or tribal community involved a description of the program of subgrants carried out to meet the objectives of this section, including—
a description of how the lead agency determined—
the criteria for awarding subgrants for qualified child care providers, including the methodology the lead agency used to determine and disburse funds in accordance with subparagraphs (D) and (E) of subsection (g)(4); and
the types of providers that received priority for the subgrants, including considerations related to—
setting;
average monthly revenues, enrollment, and attendance, before and during the COVID–19 public health emergency and after the expiration of State, local, and tribal stay-at-home orders; and
geographically based child care service needs across the State or tribal community; and
the number of eligible child care providers in operation and serving children on March 1, 2020, and the average number of such providers for March 2020 and each of the 11 months following, disaggregated by age of children served, geography, region, center-based child care setting, and family child care setting;
the number of child care slots, in the capacity of a qualified child care provider given applicable group size limits and staff-to-child ratios, that were open for attendance of children on March 1, 2020, the average number of such slots for March 2020 and each of 11 months following, disaggregated by age of children served, geography, region, center-based child care setting, and family child care setting;
the number of qualified child care providers that received a subgrant under subsection (g)(4), disaggregated by age of children served, geography, region, center-based child care setting, and family child care setting, and the average and range of the amounts of the subgrants awarded; and
the percentage of all eligible child care providers that are qualified child care providers that received such a subgrant, disaggregated as described in subclause (I); and
information concerning how qualified child care providers receiving subgrants under subsection (g)(4) used the subgrant funding received, disaggregated by the allowable uses of funds described in subsection (g)(4)(B).
Report to Congress— Not later than 90 days after receiving the lead agency reports required under subparagraph (A), the Secretary shall make publicly available and provide to the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Education and Labor of the House of Representatives a report summarizing the findings of the lead agency reports.
Authorization of appropriations— There are authorized to be appropriated such sums as may be necessary to carry out the activities under this section.
Exclusion from income— For purposes of the Internal Revenue Code of 1986, gross income shall not include any amount received by a qualified child care provider under this section.
VII Pandemic preparation and strategic stockpile
Sec. 7001 Sustained on-shore manufacturing capacity for public health emergencies
in subsection (a)(6)(B)—
by redesignating clauses (iv) and (v) as clauses (v) and (vi), respectively;
by inserting after clause (iii), the following:
“(iv) activities to support domestic manufacturing surge capacity of products or platform technologies, including manufacturing capacity and capabilities to utilize platform technologies to provide for flexible manufacturing initiatives;”
in clause (vi) (as so redesginated), by inserting “manufacture,” after “improvement,”;
in subsection (b)—
in the first sentence of paragraph (1), by inserting “support for domestic manufacturing surge capacity,” after “initiatives for innovation,”; and
in paragraph (2)—
in subparagraph (B), by striking “and” at the end;
by redesignating subparagraph (C) as subparagraph (D); and
by inserting after subparagraph (B), the following:
“(C) activities to support manufacturing surge capacities and capabilities to increase the availability of existing medical countermeasures and utilize existing novel platforms to manufacture new medical countermeasures to meet manufacturing demands to address threats that pose a significant level of risk to national security; and”
in subsection (c)—
in paragraph (2)—
in subparagraph (C), by striking “and” at the end;
in subparagraph (D), by striking the period and inserting “; and”; and
by adding at the end the following:
“(E) promoting domestic manufacturing surge capacity and capabilities for countermeasure advanced research and development, including facilitating contracts to support flexible or surge manufacturing.”
in paragraph (4)—
in subparagraph (B)—
in clause (iii), by striking “and” at the end;
in clause (iv), by striking the period and inserting “; and”; and
by adding at the end the following:
“(v) support and maintain domestic manufacturing surge capacity and capabilities, including through contracts to support flexible or surge manufacturing, to ensure that additional production of countermeasures is available in the event that the Secretary determines there is such a need for additional production.”
in subparagraph (D)—
in clause (ii), by striking “and” at the end;
by redesignating clause (iii) as clause (iv); and
by inserting after clause (ii) the following:
“(iii) research to advance manufacturing capacities and capabilities for medical countermeasures and platform technologies that may be utilized for medical countermeasures; and”
in subparagraph (E), by striking clause (ix); and
in paragraph (7)(C)(i), by striking “up to 100 highly qualified individuals, or up to 50 percent of the total number of employees, whichever is less,” and inserting “75 percent of the total number of employees”;
in subsection (e)(1)—
by redesignating subparagraphs (B) through (D) as subparagraphs (C) through (E), respectively; and
by inserting after subparagraph (A), the following:
“(B) Temporary flexibility—During a public health emergency under section 319, the Secretary shall be provided with an additional 60 business days to comply with information requests for the disclosure of information under section 552 of title 5, United States Code, related to the activities under this section (unless such activities are otherwise exempt under subparagraph (A)).”
in subsection (f)—
in paragraph (1), by striking “Not later than 180 days after the date of enactment of this subsection” and inserting “Not later than 180 days after the date of enactment of the Delivering Immediate Relief to America’s Families, Schools and Small Businesses Act”; and
in paragraph (2), by striking “Not later than 1 year after the date of enactment of this subsection” and inserting “Not later than 1 year after the date of enactment of theDelivering Immediate Relief to America’s Families, Schools and Small Businesses Act”.
Medical Countermeasure Innovation Partner— The restrictions under section 202 of division A of the Further Consolidated Appropriations Act, 2020 (Public Law 116–94), or any other provision of law imposing a restriction on salaries of individuals related to a previous appropriation to the Department of Health and Human Services, shall not apply with respect to salaries paid pursuant to an agreement under the medical countermeasure innovation partner program under section 319L(c)(4)(E) of the Public Health Service Act (42 U.S.C. 247d–7e(c)(4)(E)).
Sec. 7002 Improving and sustaining State medical stockpiles
Section 319F–2 of the Public Health Service Act (42 U.S.C. 247d–6b) is amended by adding at the end the following:
“(i) Improving and maintaining State medical stockpiles
“(1) In general—The Secretary, acting through the Assistant Secretary for Preparedness and Response, shall award grants, contracts, or cooperative agreements to eligible entities to maintain a stockpile of appropriate drugs, vaccines and other biological products, medical devices, and other medical supplies (including personal protective equipment, ancillary medical supplies, and other applicable supplies required for the administration of drugs, vaccines and other biological products, medical devices, and diagnostic tests) to be used during a public health emergency declared by the Governor of a State or by the Secretary under section 319, or a major disaster or emergency declared by the President under section 401 or 501, respectively, of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, in order to support the preparedness goals described in paragraphs (2), (3), and (8) of section 2802(b).
“(2) Eligible entities
“(A) In general—To be eligible to receive an award under paragraph (1), an entity shall—
“(i) be a State or consortium of States that is a recipient of an award under section 319C–1(b); and
“(ii) prepare, in consultation with appropriate health care providers and health officials within the State or consortium of States, and submit to the Secretary an application that contains such information as the Secretary may require, including a plan for the State stockpile and a description of the activities such entity will carry out under the agreement, consistent with the requirements of paragraph (3).
“(B) Limitation—The Secretary may make an award under this subsection to not more than one eligible entity in each State.
“(C) Supplement not supplant—Awards, contracts, or grants awarded under this subsection shall supplement, not supplant, the reserve amounts of medical supplies procured by and for the Strategic National Stockpile under subsection (a).
“(D) Administrative expenses—Not more than 5 percent of amounts received by an entity pursuant to an award under this subsection may be used for administrative expenses.
“(E) Clarification—An eligible entity receiving an award under this subsection may assign a lead entity to manage the State stockpile, which may be a recipient of an award under section 319C–2(b).
“(F) Requirement of matching funds
“(i) In general—Subject to clause (ii), the Secretary may not make an award under this subsection unless the applicant agrees, with respect to the costs to be incurred by the applicant in carrying out the purpose described in this subsection, to make available non-Federal contributions toward such costs in an amount equal to—
“(I) for each of fiscal years 2023 and 2024, not less than $1 for each $10 of Federal funds provided in the award;
“(II) for each of fiscal years 2025 and 2026, not less than $1 for each $5 of Federal funds provided in the award; and
“(III) for fiscal year 2027 and each fiscal year thereafter, not less than $1 for each $3 of Federal funds provided in the award.
“(ii) Waiver
“(I) In general—The Secretary may, upon the request of a State, waive the requirement under clause (i) in whole or in part if the Secretary determines that extraordinary economic conditions in the State in the fiscal year involved or in the previous fiscal year justify the waiver.
“(II) Applicability of waiver—A waiver provided by the Secretary under this subparagraph shall apply only to the fiscal year involved.
“(3) Stockpiling activities and requirements—A recipient of a grant, contract, or cooperative agreement under this subsection shall use such funds to carry out the following:
“(A) Maintaining a stockpile of appropriate drugs, vaccines and other biological products, medical devices, and other supplies (including personal protective equipment, ancillary medical supplies, and other applicable supplies required for the administration of drugs, vaccines and other biological products, medical devices, and diagnostic tests) to be used during a public health emergency in such numbers, types, and amounts as the State determines necessary, consistent with such State’s stockpile plan. Such a recipient may not use funds to support the stockpiling of countermeasures as defined under subsection (c), unless the eligible entity provides justification for maintaining such products and the Secretary determines such appropriate and applicable.
“(B) Deploying the stockpile as required by the State to respond to an actual or potential public health emergency.
“(C) Replenishing and making necessary additions or modifications to the contents of such stockpile or stockpiles, including to address potential depletion.
“(D) In consultation with Federal, State, and local officials, take into consideration the availability, deployment, dispensing, and administration requirements of medical products within the stockpile.
“(E) Ensuring that procedures are followed for inventory management and accounting, and for the physical security of the stockpile, as appropriate.
“(F) Reviewing and revising, as appropriate, the contents of the stockpile on a regular basis to ensure that to the extent practicable, advanced technologies and medical products are considered.
“(G) Carrying out exercises, drills, and other training for purposes of stockpile deployment, dispensing, and administration of medical products, and for purposes of assessing the capability of such stockpile to address the medical supply needs of public health emergencies of varying types and scales, which may be conducted in accordance with requirements related to exercises, drills, and other training for recipients of awards under section 319C–1 or 319C–2, as applicable.
“(H) Carrying out other activities as the State determines appropriate, to support State efforts to prepare for, and respond to, public health threats.
“(4) State plan coordination—The eligible entity under this subsection shall ensure appropriate coordination of the State stockpile plan developed pursuant to paragraph (2)(A)(ii) and the plans required pursuant to section 319C–1.
“(5) Guidance for States—Not later than 180 days after the date of enactment of this subsection, the Secretary, acting through the Assistant Secretary for Preparedness and Response, shall issue guidance for States related to maintaining and replenishing a stockpile of medical products. The Secretary shall update such guidance as appropriate.
“(6) Assistance to States—The Secretary shall provide assistance to States, including technical assistance, as appropriate, to maintain and improve State and local public health preparedness capabilities to distribute and dispense medical products from a State stockpile.
“(7) Coordination with the Strategic National Stockpile—Each recipient of an award under this subsection shall ensure that the State stockpile plan developed pursuant to paragraph (2)(A)(ii) contains such information as the Secretary may require related to current inventory of supplies maintained pursuant to paragraph (3), and any plans to replenish such supplies, or procure new or alternative supplies. The Secretary shall use information obtained from State stockpile plans to inform the maintenance and management of the Strategic National Stockpile pursuant to subsection (a).
“(8) Performance and accountability
“(A) In general—The Secretary, acting through the Assistant Secretary for Preparedness and Response, shall develop and implement a process to review and audit entities in receipt of an award under this subsection, including by establishing metrics to ensure that each entity receiving such an award is carrying out activities in accordance with the applicable State stockpile plan. The Secretary may require entities to—
“(i) measure progress toward achieving the outcome goals; and
“(ii) at least annually, test, exercise, and rigorously evaluate the stockpile capacity and response capabilities of the entity, and report to the Secretary on the results of such test, exercise, and evaluation, and on progress toward achieving outcome goals, based on criteria established by the Secretary.
“(B) Notification of failure—The Secretary shall develop and implement a process to notify entities that are determined by the Secretary to have failed to meet the requirements of the terms of an award under this subsection. Such process shall provide such entities with the opportunity to correct such noncompliance. An entity that fails to correct such noncompliance shall be subject to subparagraph (C).
“(C) Withholding of certain amounts from entities that fail to achieve benchmarks or submit State stockpile plan—Beginning with fiscal year 2022, and in each succeeding fiscal year, the Secretary shall withhold from each entity that has failed substantially to meet the terms of an award under this subsection for at least 1 of the 2 immediately preceding fiscal years (beginning with fiscal year 2022), the amount allowed for administrative expenses described in described in paragraph (2)(D).
“(9) Authorization of appropriations—For the purpose of carrying out this subsection, there are authorized to be appropriated $1,000,000,000 for each of fiscal years 2021 through 2030, to remain available until expended.”
Sec. 7003 Strengthening the Strategic National Stockpile
in subsection (a)—
in paragraph (2)(A), by adding “and the contracts issued under paragraph (5)” after “paragraph (1)”
in paragraph (3)(F), by striking “Secretary of Homeland Security” and inserting “Secretary of Health and Human Services, in coordination with or at the request of, the Secretary of Homeland Security,”;
by redesignating paragraph (5) as paragraph (6);
by inserting after paragraph (4) the following:
“(5) Surge capacity—The Secretary, in maintaining the stockpile under paragraph (1) and carrying out procedures under paragraph (3), may—
“(A) enter into contracts or cooperative agreements with vendors for procurement, maintenance, and storage of reserve amounts of drugs, vaccines and other biological products, medical devices, and other medical supplies (including personal protective equipment, ancillary medical supplies, and other applicable supplies required for the administration of drugs, vaccines and other biological products, medical devices, and diagnostic tests in the stockpile), under such terms and conditions (including quantity, production schedule, maintenance costs, and price of product) as the Secretary may specify, including for purposes of—
“(i) maintenance and storage of reserve amounts of products intended to be delivered to the ownership of the Federal Government under the contract, which may consider costs of shipping, or otherwise transporting, handling, storage, and related costs for such product or products; and
“(ii) maintaining domestic manufacturing capacity of such products to ensure additional reserved production capacity of such products is available, and that such products are provided in a timely manner, to be delivered to the ownership of the Federal Government under the contract and deployed in the event that the Secretary determines that there is a need to quickly purchase additional quantities of such product; and
“(B) promulgate such regulations as the Secretary determines necessary to implement this paragraph.”
in subparagraph (A) of paragraph (6), as so redesignated—
in clause (viii), by striking “; and” and inserting a semicolon;
in clause (ix), by striking the period and inserting “; and”; and
by adding at the end the following:
“(x) an assessment of the contracts or cooperative agreements entered into pursuant to paragraph (5).”
in subsection (c)(2)(C), by striking “on an annual basis” and inserting “not later than March 15 of each year”.
VIII Coronavirus Relief Fund extension
Sec. 8001 Extension of period to use Coronavirus Relief Fund payments
Section 601(d)(3) of the Social Security Act (42 U.S.C. 801(d)(3)) is amended by striking “December 30, 2020” and inserting “September 30, 2021”.
IX Charitable giving
Sec. 9001 Increase in limitation on partial above the line deduction for charitable contributions
Increase—
In general— Paragraph (22) of section 62(a) of the Internal Revenue Code of 1986 is amended to read as follows:
“(22) Charitable contributions—In the case of a taxable year beginning in 2020 of an individual to whom section 63(b) applies for such taxable year, the deduction under section 170(a) (determined without regard to section 170(b)) for qualified charitable contributions (not in excess of the applicable amount).”
Applicable amount— Paragraph (1) of section 62(f) of the Internal Revenue Code of 1986 is amended to read as follows:
“(1) Applicable amount—The term applicable amount means $600 (twice such amount in the case of a joint return).”
Conforming amendment— Section 62(f)(2)(B) of such Code is amended by striking “(determined without regard to subsection (b) thereof)”.
Penalty for underpayments attributable to overstated deduction—
In general— Section 6662(b) of the Internal Revenue Code of 1986 is amended by inserting after paragraph (8) the following:
“(9) Any overstatement of qualified charitable contributions (as defined in section 62(f)).”
Increased penalty— Section 6662 of such Code is amended by adding at the end the following new subsection:
“(l) Increase in penalty in case of overstatement of qualified charitable contributions—In the case of any portion of an underpayment which is attributable to one or more overstatements of a qualified charitable contribution (as defined in section 62(f)), subsection (a) shall be applied with respect to such portion by substituting “50 percent” for “20 percent”.”
Exception to approval of assessment— Section 6751(b)(2)(A) is amended by striking “or 6655” and inserting “6655, or 6662 (but only with respect to an addition to tax by reason of subsection (b)(9) thereof)”.
Effective date— The amendments made by this section shall apply to taxable years beginning after December 31, 2019.
X Critical minerals
Sec. 10001 Mineral security
Definitions— In this section:
Byproduct— The term byproduct means a critical mineral—
the recovery of which depends on the production of a host mineral that is not designated as a critical mineral; and
that exists in sufficient quantities to be recovered during processing or refining.
Critical mineral—
In general— The term critical mineral means any mineral, element, substance, or material designated as critical by the Secretary under subsection (c).
Exclusions— The term critical mineral does not include—
fuel minerals, including oil, natural gas, or any other fossil fuels; or
water, ice, or snow.
Indian tribe— The term Indian tribe has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304).
Secretary— The term “Secretary” means the Secretary of the Interior.
State— The term State means—
a State;
the District of Columbia;
the Commonwealth of Puerto Rico;
Guam;
American Samoa;
the Commonwealth of the Northern Mariana Islands; and
the United States Virgin Islands.
Policy—
In general— Section 3 of the National Materials and Minerals Policy, Research and Development Act of 1980 (30 U.S.C. 1602) is amended in the second sentence—
by striking paragraph (3) and inserting the following:
“(3) establish an analytical and forecasting capability for identifying critical mineral demand, supply, and other factors to allow informed actions to be taken to avoid supply shortages, mitigate price volatility, and prepare for demand growth and other market shifts;”
in paragraph (6), by striking “and” after the semicolon at the end; and
by striking paragraph (7) and inserting the following:
“(7) facilitate the availability, development, and environmentally responsible production of domestic resources to meet national material or critical mineral needs;
“(8) avoid duplication of effort, prevent unnecessary paperwork, and minimize delays in the administration of applicable laws (including regulations) and the issuance of permits and authorizations necessary to explore for, develop, and produce critical minerals and to construct critical mineral manufacturing facilities in accordance with applicable environmental and land management laws;
“(9) strengthen—
“(A) educational and research capabilities at not lower than the secondary school level; and
“(B) workforce training for exploration and development of critical minerals and critical mineral manufacturing;
“(10) bolster international cooperation through technology transfer, information sharing, and other means;
“(11) promote the efficient production, use, and recycling of critical minerals;
“(12) develop alternatives to critical minerals; and
“(13) establish contingencies for the production of, or access to, critical minerals for which viable sources do not exist within the United States.”
Conforming amendment— Section 2(b) of the National Materials and Minerals Policy, Research and Development Act of 1980 (30 U.S.C. 1601(b)) is amended by striking “(b) As used in this Act, the term” and inserting the following:
“(b) Definitions—In this Act:
“(1) Critical mineral—The term critical mineral means any mineral, element, substance, or material designated as critical by the Secretary under section 3168(c) of the National Defense Authorization Act for Fiscal Year 2021.
“(2) Materials—The term”
Critical mineral designations—
Draft methodology and list— The Secretary, acting through the Director of the United States Geological Survey (referred to in this subsection as the “Secretary”), shall publish in the Federal Register for public comment—
a description of the draft methodology used to identify a draft list of critical minerals;
a draft list of minerals, elements, substances, and materials that qualify as critical minerals; and
a draft list of critical minerals recovered as byproducts.
Availability of data— If available data is insufficient to provide a quantitative basis for the methodology developed under this subsection, qualitative evidence may be used to the extent necessary.
Final methodology and list— After reviewing public comments on the draft methodology and the draft lists published under paragraph (1) and updating the methodology and lists as appropriate, not later than 45 days after the date on which the public comment period with respect to the draft methodology and draft lists closes, the Secretary shall publish in the Federal Register—
a description of the final methodology for determining which minerals, elements, substances, and materials qualify as critical minerals;
the final list of critical minerals; and
the final list of critical minerals recovered as byproducts.
Designations—
In general— For purposes of carrying out this subsection, the Secretary shall maintain a list of minerals, elements, substances, and materials designated as critical, pursuant to the final methodology published under paragraph (3), that the Secretary determines—
are essential to the economic or national security of the United States;
the supply chain of which is vulnerable to disruption (including restrictions associated with foreign political risk, abrupt demand growth, military conflict, violent unrest, anti-competitive or protectionist behaviors, and other risks throughout the supply chain); and
serve an essential function in the manufacturing of a product (including energy technology-, defense-, currency-, agriculture-, consumer electronics-, and health care-related applications), the absence of which would have significant consequences for the economic or national security of the United States.
Inclusions— Notwithstanding the criteria under paragraph (3), the Secretary may designate and include on the list any mineral, element, substance, or material determined by another Federal agency to be strategic and critical to the defense or national security of the United States.
Required consultation— The Secretary shall consult with the Secretaries of Defense, Commerce, Agriculture, and Energy and the United States Trade Representative in designating minerals, elements, substances, and materials as critical under this paragraph.
Subsequent review—
In general— The Secretary, in consultation with the Secretaries of Defense, Commerce, Agriculture, and Energy and the United States Trade Representative, shall review the methodology and list under paragraph (3) and the designations under paragraph (4) at least every 3 years, or more frequently as the Secretary considers to be appropriate.
Revisions— Subject to paragraph (4)(A), the Secretary may—
revise the methodology described in this subsection;
determine that minerals, elements, substances, and materials previously determined to be critical minerals are no longer critical minerals; and
designate additional minerals, elements, substances, or materials as critical minerals.
Notice— On finalization of the methodology and the list under paragraph (3), or any revision to the methodology or list under paragraph (5), the Secretary shall submit to Congress written notice of the action.
Resource assessment—
In general— Not later than 4 years after the date of enactment of this Act, in consultation with applicable State (including geological surveys), local, academic, industry, and other entities, the Secretary (acting through the Director of the United States Geological Survey) or a designee of the Secretary, shall complete a comprehensive national assessment of each critical mineral that—
identifies and quantifies known critical mineral resources, using all available public and private information and datasets, including exploration histories; and
provides a quantitative and qualitative assessment of undiscovered critical mineral resources throughout the United States, including probability estimates of tonnage and grade, using all available public and private information and datasets, including exploration histories.
Supplementary information— In carrying out this subsection, the Secretary may carry out surveys and field work (including drilling, remote sensing, geophysical surveys, topographical and geological mapping, and geochemical sampling and analysis) to supplement existing information and datasets available for determining the existence of critical minerals in the United States.
Public access— Subject to applicable law, to the maximum extent practicable, the Secretary shall make all data and metadata collected from the comprehensive national assessment carried out under paragraph (1) publically and electronically accessible.
Technical assistance— At the request of the Governor of a State or the head of an Indian tribe, the Secretary may provide technical assistance to State governments and Indian tribes conducting critical mineral resource assessments on non-Federal land.
Prioritization—
In general— The Secretary may sequence the completion of resource assessments for each critical mineral such that critical minerals considered to be most critical under the methodology established under subsection (c) are completed first.
Reporting— During the period beginning not later than 1 year after the date of enactment of this Act and ending on the date of completion of all of the assessments required under this subsection, the Secretary shall submit to Congress on an annual basis an interim report that—
identifies the sequence and schedule for completion of the assessments if the Secretary sequences the assessments; or
describes the progress of the assessments if the Secretary does not sequence the assessments.
Updates— The Secretary may periodically update the assessments conducted under this subsection based on—
the generation of new information or datasets by the Federal Government; or
the receipt of new information or datasets from critical mineral producers, State geological surveys, academic institutions, trade associations, or other persons.
Additional surveys— The Secretary shall complete a resource assessment for each additional mineral or element subsequently designated as a critical mineral under subsection (c)(5)(B) not later than 2 years after the designation of the mineral or element.
Report— Not later than 2 years after the date of enactment of this Act, the Secretary shall submit to Congress a report describing the status of geological surveying of Federal land for any mineral commodity—
for which the United States was dependent on a foreign country for more than 25 percent of the United States supply, as depicted in the report issued by the United States Geological Survey entitled “Mineral Commodity Summaries 2020”; but
that is not designated as a critical mineral under subsection (c).
Permitting—
Sense of Congress— It is the sense of Congress that—
critical minerals are fundamental to the economy, competitiveness, and security of the United States;
to the maximum extent practicable, the critical mineral needs of the United States should be satisfied by minerals responsibly produced and recycled in the United States; and
the Federal permitting process has been identified as an impediment to mineral production and the mineral security of the United States.
Performance improvements— To improve the quality and timeliness of decisions, the Secretary (acting through the Director of the Bureau of Land Management) and the Secretary of Agriculture (acting through the Chief of the Forest Service) (referred to in this subsection as the Secretaries) shall, to the maximum extent practicable, with respect to critical mineral production on Federal land, complete Federal permitting and review processes with maximum efficiency and effectiveness, while supporting vital economic growth, by—
establishing and adhering to timelines and schedules for the consideration of, and final decisions regarding, applications, operating plans, leases, licenses, permits, and other use authorizations for mineral-related activities on Federal land;
establishing clear, quantifiable, and temporal permitting performance goals and tracking progress against those goals;
engaging in early collaboration among agencies, project sponsors, and affected stakeholders—
to incorporate and address the interests of those parties; and
to minimize delays;
ensuring transparency and accountability by using cost-effective information technology to collect and disseminate information regarding individual projects and agency performance;
engaging in early and active consultation with State, local, and Indian tribal governments to avoid conflicts or duplication of effort, resolve concerns, and allow for concurrent, rather than sequential, reviews;
providing demonstrable improvements in the performance of Federal permitting and review processes, including lower costs and more timely decisions;
expanding and institutionalizing permitting and review process improvements that have proven effective;
developing mechanisms to better communicate priorities and resolve disputes among agencies at the national, regional, State, and local levels; and
developing other practices, such as preapplication procedures.
Review and report— Not later than 1 year after the date of enactment of this Act, the Secretaries shall submit to Congress a report that—
identifies additional measures (including regulatory and legislative proposals, as appropriate) that would increase the timeliness of permitting activities for the exploration and development of domestic critical minerals;
identifies options (including cost recovery paid by permit applicants) for ensuring adequate staffing and training of Federal entities and personnel responsible for the consideration of applications, operating plans, leases, licenses, permits, and other use authorizations for critical mineral-related activities on Federal land;
quantifies the amount of time typically required (including range derived from minimum and maximum durations, mean, median, variance, and other statistical measures or representations) to complete each step (including those aspects outside the control of the executive branch, such as judicial review, applicant decisions, or State and local government involvement) associated with the development and processing of applications, operating plans, leases, licenses, permits, and other use authorizations for critical mineral-related activities on Federal land, which shall serve as a baseline for the performance metric under paragraph (4); and
describes actions carried out pursuant to paragraph (2).
Performance metric— Not later than 90 days after the date of submission of the report under paragraph (3), the Secretaries, after providing public notice and an opportunity to comment, shall develop and publish a performance metric for evaluating the progress made by the executive branch to expedite the permitting of activities that will increase exploration for, and development of, domestic critical minerals, while maintaining environmental standards.
Annual reports— Beginning with the first budget submission by the President under section 1105 of title 31, United States Code, after publication of the performance metric required under paragraph (4), and annually thereafter, the Secretaries shall submit to Congress a report that—
summarizes the implementation of recommendations, measures, and options identified in subparagraphs (A) and (B) of paragraph (3);
using the performance metric under paragraph (4), describes progress made by the executive branch, as compared to the baseline established pursuant to paragraph (3)(C), on expediting the permitting of activities that will increase exploration for, and development of, domestic critical minerals; and
compares the United States to other countries in terms of permitting efficiency and any other criteria relevant to the globally competitive critical minerals industry.
Individual projects— Using data from the Secretaries generated under paragraph (5), the Director of the Office of Management and Budget shall prioritize inclusion of individual critical mineral projects on the website operated by the Office of Management and Budget in accordance with section 1122 of title 31, United States Code.
Report of Small Business Administration— Not later than 1 year and 300 days after the date of enactment of this Act, the Administrator of the Small Business Administration shall submit to the applicable committees of Congress a report that assesses the performance of Federal agencies with respect to—
complying with chapter 6 of title 5, United States Code (commonly known as the “Regulatory Flexibility Act”), in promulgating regulations applicable to the critical minerals industry; and
performing an analysis of regulations applicable to the critical minerals industry that may be outmoded, inefficient, duplicative, or excessively burdensome.
Federal Register process—
Departmental review— Absent any extraordinary circumstance, and except as otherwise required by law, the Secretary and the Secretary of Agriculture shall ensure that each Federal Register notice described in paragraph (2) shall be—
subject to any required reviews within the Department of the Interior or the Department of Agriculture; and
published in final form in the Federal Register not later than 45 days after the date of initial preparation of the notice.
Preparation— The preparation of Federal Register notices required by law associated with the issuance of a critical mineral exploration or mine permit shall be delegated to the organizational level within the agency responsible for issuing the critical mineral exploration or mine permit.
Transmission— All Federal Register notices regarding official document availability, announcements of meetings, or notices of intent to undertake an action shall be originated in, and transmitted to the Federal Register from, the office in which, as applicable—
the documents or meetings are held; or
the activity is initiated.
Recycling, efficiency, and alternatives—
Establishment— The Secretary of Energy (referred to in this subsection as the “Secretary”) shall conduct a program of research and development—
to promote the efficient production, use, and recycling of critical minerals throughout the supply chain; and
to develop alternatives to critical minerals that do not occur in significant abundance in the United States.
Cooperation— In carrying out the program, the Secretary shall cooperate with appropriate—
Federal agencies and National Laboratories;
critical mineral producers;
critical mineral processors;
critical mineral manufacturers;
trade associations;
academic institutions;
small businesses; and
other relevant entities or individuals.
Activities— Under the program, the Secretary shall carry out activities that include the identification and development of—
advanced critical mineral extraction, production, separation, alloying, or processing technologies that decrease the energy consumption, environmental impact, and costs of those activities, including—
efficient water and wastewater management strategies;
technologies and management strategies to control the environmental impacts of radionuclides in ore tailings;
technologies for separation and processing; and
technologies for increasing the recovery rates of byproducts from host metal ores;
technologies or process improvements that minimize the use, or lead to more efficient use, of critical minerals across the full supply chain;
technologies, process improvements, or design optimizations that facilitate the recycling of critical minerals, and options for improving the rates of collection of products and scrap containing critical minerals from post-consumer, industrial, or other waste streams;
commercial markets, advanced storage methods, energy applications, and other beneficial uses of critical minerals processing byproducts;
alternative minerals, metals, and materials, particularly those available in abundance within the United States and not subject to potential supply restrictions, that lessen the need for critical minerals; and
alternative energy technologies or alternative designs of existing energy technologies, particularly those that use minerals that—
occur in abundance in the United States; and
are not subject to potential supply restrictions.
Reports— Not later than 2 years after the date of enactment of this Act, and annually thereafter, the Secretary shall submit to Congress a report summarizing the activities, findings, and progress of the program.
Analysis and forecasting—
Capabilities— In order to evaluate existing critical mineral policies and inform future actions that may be taken to avoid supply shortages, mitigate price volatility, and prepare for demand growth and other market shifts, the Secretary (acting through the Director of the United States Geological Survey) or a designee of the Secretary, in consultation with the Energy Information Administration, academic institutions, and others in order to maximize the application of existing competencies related to developing and maintaining computer-models and similar analytical tools, shall conduct and publish the results of an annual report that includes—
as part of the annually published Mineral Commodity Summaries from the United States Geological Survey, a comprehensive review of critical mineral production, consumption, and recycling patterns, including—
the quantity of each critical mineral domestically produced during the preceding year;
the quantity of each critical mineral domestically consumed during the preceding year;
market price data or other price data for each critical mineral;
an assessment of—
critical mineral requirements to meet the national security, energy, economic, industrial, technological, and other needs of the United States during the preceding year;
the reliance of the United States on foreign sources to meet those needs during the preceding year; and
the implications of any supply shortages, restrictions, or disruptions during the preceding year;
the quantity of each critical mineral domestically recycled during the preceding year;
the market penetration during the preceding year of alternatives to each critical mineral;
a discussion of international trends associated with the discovery, production, consumption, use, costs of production, prices, and recycling of each critical mineral as well as the development of alternatives to critical minerals; and
such other data, analyses, and evaluations as the Secretary finds are necessary to achieve the purposes of this subsection; and
a comprehensive forecast, entitled the “Annual Critical Minerals Outlook”, of projected critical mineral production, consumption, and recycling patterns, including—
the quantity of each critical mineral projected to be domestically produced over the subsequent 1-year, 5-year, and 10-year periods;
the quantity of each critical mineral projected to be domestically consumed over the subsequent 1-year, 5-year, and 10-year periods;
an assessment of—
critical mineral requirements to meet projected national security, energy, economic, industrial, technological, and other needs of the United States;
the projected reliance of the United States on foreign sources to meet those needs; and
the projected implications of potential supply shortages, restrictions, or disruptions;
the quantity of each critical mineral projected to be domestically recycled over the subsequent 1-year, 5-year, and 10-year periods;
the market penetration of alternatives to each critical mineral projected to take place over the subsequent 1-year, 5-year, and 10-year periods;
a discussion of reasonably foreseeable international trends associated with the discovery, production, consumption, use, costs of production, and recycling of each critical mineral as well as the development of alternatives to critical minerals; and
such other projections relating to each critical mineral as the Secretary determines to be necessary to achieve the purposes of this subsection.
Proprietary information— In preparing a report described in paragraph (1), the Secretary shall ensure, consistent with section 5(f) of the National Materials and Minerals Policy, Research and Development Act of 1980 (30 U.S.C. 1604(f)), that—
no person uses the information and data collected for the report for a purpose other than the development of or reporting of aggregate data in a manner such that the identity of the person or firm who supplied the information is not discernible and is not material to the intended uses of the information;
no person discloses any information or data collected for the report unless the information or data has been transformed into a statistical or aggregate form that does not allow the identification of the person or firm who supplied particular information; and
procedures are established to require the withholding of any information or data collected for the report if the Secretary determines that withholding is necessary to protect proprietary information, including any trade secrets or other confidential information.
Education and workforce—
Workforce assessment— Not later than 1 year and 300 days after the date of enactment of this Act, the Secretary of Labor (in consultation with the Secretary, the Director of the National Science Foundation, institutions of higher education with substantial expertise in mining, institutions of higher education with significant expertise in minerals research, including fundamental research into alternatives, and employers in the critical minerals sector) shall submit to Congress an assessment of the domestic availability of technically trained personnel necessary for critical mineral exploration, development, assessment, production, manufacturing, recycling, analysis, forecasting, education, and research, including an analysis of—
skills that are in the shortest supply as of the date of the assessment;
skills that are projected to be in short supply in the future;
the demographics of the critical minerals industry and how the demographics will evolve under the influence of factors such as an aging workforce;
the effectiveness of training and education programs in addressing skills shortages;
opportunities to hire locally for new and existing critical mineral activities;
the sufficiency of personnel within relevant areas of the Federal Government for achieving the policies described in section 3 of the National Materials and Minerals Policy, Research and Development Act of 1980 (30 U.S.C. 1602); and
the potential need for new training programs to have a measurable effect on the supply of trained workers in the critical minerals industry.
Curriculum study—
In general— The Secretary and the Secretary of Labor shall jointly enter into an arrangement with the National Academy of Sciences and the National Academy of Engineering under which the Academies shall coordinate with the National Science Foundation on conducting a study—
to design an interdisciplinary program on critical minerals that will support the critical mineral supply chain and improve the ability of the United States to increase domestic, critical mineral exploration, development, production, manufacturing, research, including fundamental research into alternatives, and recycling;
to address undergraduate and graduate education, especially to assist in the development of graduate level programs of research and instruction that lead to advanced degrees with an emphasis on the critical mineral supply chain or other positions that will increase domestic, critical mineral exploration, development, production, manufacturing, research, including fundamental research into alternatives, and recycling;
to develop guidelines for proposals from institutions of higher education with substantial capabilities in the required disciplines for activities to improve the critical mineral supply chain and advance the capacity of the United States to increase domestic, critical mineral exploration, research, development, production, manufacturing, and recycling; and
to outline criteria for evaluating performance and recommendations for the amount of funding that will be necessary to establish and carry out the program described in paragraph (3).
Report— Not later than 2 years after the date of enactment of this Act, the Secretary shall submit to Congress a description of the results of the study required under subparagraph (A).
Program—
Establishment— The Secretary and the Secretary of Labor shall jointly conduct a competitive grant program under which institutions of higher education may apply for and receive 4-year grants for—
startup costs for newly designated faculty positions in integrated critical mineral education, research, innovation, training, and workforce development programs consistent with paragraph (2);
internships, scholarships, and fellowships for students enrolled in programs related to critical minerals;
equipment necessary for integrated critical mineral innovation, training, and workforce development programs; and
research of critical minerals and their applications, particularly concerning the manufacture of critical components vital to national security.
Renewal— A grant under this paragraph shall be renewable for up to 2 additional 3-year terms based on performance criteria outlined under paragraph (2)(A)(iv).
National geological and geophysical data preservation program— Section 351(k) of the Energy Policy Act of 2005 (42 U.S.C. 15908(k)) is amended by striking “$30,000,000 for each of fiscal years 2006 through 2010” and inserting “$5,000,000 for each of fiscal years 2021 through 2030, to remain available until expended”.
Administration—
In general— The National Critical Materials Act of 1984 (30 U.S.C. 1801 et seq.) is repealed.
Conforming amendment— Section 3(d) of the National Superconductivity and Competitiveness Act of 1988 (15 U.S.C. 5202(d)) is amended in the first sentence by striking “, with the assistance of the National Critical Materials Council as specified in the National Critical Materials Act of 1984 (30 U.S.C. 1801 et seq.),”.
Savings clauses—
In general— Nothing in this section or an amendment made by this section modifies any requirement or authority provided by—
the matter under the heading “GEOLOGICAL SURVEY” of the first section of the Act of March 3, 1879 (43 U.S.C. 31(a)); or
the first section of Public Law 87–626 (43 U.S.C. 31(b)).
Effect on Department of Defense— Nothing in this section or an amendment made by this section affects the authority of the Secretary of Defense with respect to the work of the Department of Defense on critical material supplies in furtherance of the national defense mission of the Department of Defense.
Secretarial order not affected— This section shall not apply to any mineral described in Secretarial Order No. 3324, issued by the Secretary on December 3, 2012, in any area to which the order applies.
Application of certain provisions—
In general— Subsections (e) and (f) shall apply to—
an exploration project in which the presence of a byproduct is reasonably expected, based on known mineral companionality, geologic formation, mineralogy, or other factors; and
a project that demonstrates that the byproduct is of sufficient grade that, when combined with the production of a host mineral, the byproduct is economic to recover, as determined by the applicable Secretary in accordance with subparagraph (B).
Requirement— In making the determination under subparagraph (A)(ii), the applicable Secretary shall consider the cost effectiveness of the byproducts recovery.
Authorization of appropriations— There is authorized to be appropriated to carry out this section $50,000,000 for each of fiscal years 2021 through 2030.
Sec. 10002 Rare earth element advanced coal technologies
Program for extraction and recovery of rare earth elements and minerals from coal and coal byproducts—
In general— The Secretary of Energy, acting through the Assistant Secretary for Fossil Energy (referred to in this section as the “Secretary”), shall carry out a program under which the Secretary shall develop advanced separation technologies for the extraction and recovery of rare earth elements and minerals from coal and coal byproducts.
Authorization of appropriations— There is authorized to be appropriated to the Secretary to carry out the program described in paragraph (1) $23,000,000 for each of fiscal years 2021 through 2028.
Report— Not later than 1 year after the date of enactment of this Act, the Secretary shall submit to the Committee on Energy and Natural Resources of the Senate and the Committee on Energy and Commerce of the House of Representatives a report evaluating the development of advanced separation technologies for the extraction and recovery of rare earth elements and minerals from coal and coal byproducts, including acid mine drainage from coal mines.
XI Miscellaneous provisions
Sec. 11001 Emergency designation
In general— The amounts provided by this division and the amendments made by this division are designated as an emergency requirement pursuant to section 4(g) of the Statutory Pay-As-You-Go Act of 2010 (2 U.S.C. 933(g)).
Designation in Senate— In the Senate, this division and the amendments made by this division are designated as an emergency requirement pursuant to section 4112(a) of H. Con. Res. 71 (115th Congress), the concurrent resolution on the budget for fiscal year 2018.