Business Loan Program Temporary Changes; Paycheck Protection Program — Requirements — Loan Forgiveness

Record facts

Summary

An interim final rule of the U.S. Small Business Administration and the Department of the Treasury, published in the Federal Register of June 1, 2020 (Vol. 85, No. 105), 13 CFR Part 120, Docket Number SBA-2020-0032. The rule sets out requirements governing forgiveness of Paycheck Protection Program loans, including the payroll and nonpayroll costs eligible for forgiveness and the limit that eligible nonpayroll costs cannot exceed 25 percent of the forgiveness amount. It describes the forgiveness process, under which a borrower submits the Loan Forgiveness Application, SBA Form 3508, to its lender, the lender has 60 days to issue a decision, and the agency remits the forgiveness amount not later than 90 days after that decision. The covered period is eight consecutive weeks, or 56 days. The rule is effective May 28, 2020, with comments due on or before July 1, 2020.

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33004 
Federal Register / Vol. 85, No. 105 / Monday, June 1, 2020 / Rules and Regulations 
1 https://www.sba.gov/document/support-faq- 
lenders-borrowers. 
Dated at Washington, DC, on February 20, 
2020. 
Robert E. Feldman, 
Executive Secretary. 
By the National Credit Union 
Administration Board. 
Gerard Poliquin, 
Secretary of the Board. 
[FR Doc. 2020–10291 Filed 5–29–20; 8:45 am] 
BILLING CODE 4810–33–P; 6210–01–P; 6714–01–P; 
7535–01–P 
SMALL BUSINESS ADMINISTRATION 
13 CFR Part 120 
[Docket Number SBA–2020–0032] 
RIN 3245–AH46 
DEPARTMENT OF THE TREASURY 
RIN 1505–AC69 
Business Loan Program Temporary 
Changes; Paycheck Protection 
Program—Requirements—Loan 
Forgiveness 
AGENCY: U.S. Small Business 
Administration; Department of the 
Treasury. 
ACTION: Interim final rule. 
SUMMARY: On April 2, 2020, the U.S. 
Small Business Administration (SBA) 
posted an interim final rule announcing 
the implementation of the Coronavirus 
Aid, Relief, and Economic Security Act 
(CARES Act). The CARES Act 
temporarily adds a new program, titled 
the ‘‘Paycheck Protection Program,’’ to 
the SBA’s 7(a) Loan Program. The 
CARES Act also provides for forgiveness 
of up to the full principal amount of 
qualifying loans guaranteed under the 
Paycheck Protection Program (PPP). The 
PPP is intended to provide economic 
relief to small businesses nationwide 
adversely impacted by the Coronavirus 
Disease 2019 (COVID–19). SBA posted 
additional interim final rules on April 3, 
2020, April 14, 2020, April 24, 2020, 
April 28, 2020, April 30, 2020, May 5, 
2020, May 8, 2020, May 13, 2020, May 
14, 2020, May 18, 2020, and May 20, 
2020, and the Department of the 
Treasury (Treasury) posted an 
additional interim final rule on April 
27, 2020. This interim final rule 
supplements the previously posted 
interim final rules in order to help PPP 
borrowers prepare and submit loan 
forgiveness applications as provided for 
in the CARES Act, help PPP lenders 
who will be making the loan forgiveness 
decisions, inform borrowers and lenders 
of SBA’s process for reviewing PPP loan 
applications and loan forgiveness 
applications, and requests public 
comment. 
DATES: Effective date: May 28, 2020. 
Applicability date: This interim final 
rule applies to loan forgiveness 
applications submitted under the 
Paycheck Protection Program. 
Comment date: Comments must be 
received on or before July 1, 2020. 
ADDRESSES: You may submit comments, 
identified by number SBA–2020–0032 
through the Federal eRulemaking Portal: 
http://www.regulations.gov. Follow the 
instructions for submitting comments. 
SBA will post all comments on 
www.regulations.gov. If you wish to 
submit confidential business 
information (CBI) as defined in the User 
Notice at www.regulations.gov, please 
send an email to ppp-ifr@sba.gov. 
Highlight the information that you 
consider to be CBI and explain why you 
believe SBA should hold this 
information as confidential. SBA will 
review the information and make the 
final determination whether it will 
publish the information. 
FOR FURTHER INFORMATION CONTACT: A 
Call Center Representative at 833–572– 
0502, or the local SBA Field Office; the 
list of offices can be found at https://
www.sba.gov/tools/local-assistance/ 
districtoffices. 
SUPPLEMENTARY INFORMATION: 
I. Background Information 
On March 13, 2020, President Trump 
declared the ongoing Coronavirus 
Disease 2019 (COVID–19) pandemic of 
sufficient severity and magnitude to 
warrant an emergency declaration for all 
States, territories, and the District of 
Columbia. With the COVID–19 
emergency, many small businesses 
nationwide are experiencing economic 
hardship as a direct result of the 
Federal, State, tribal, and local public 
health measures that are being taken to 
minimize the public’s exposure to the 
virus. These measures, some of which 
are government-mandated, are being 
implemented nationwide and include 
the closures of restaurants, bars, and 
gyms. In addition, based on the advice 
of public health officials, other 
measures, such as keeping a safe 
distance from others or even stay-at- 
home orders, are being implemented, 
resulting in a dramatic decrease in 
economic activity as the public avoids 
malls, retail stores, and other 
businesses. 
On March 27, 2020, the President 
signed the Coronavirus Aid, Relief, and 
Economic Security Act (the CARES Act) 
(Pub. L. 116–136) to provide emergency 
assistance and health care response for 
individuals, families, and businesses 
affected by the coronavirus pandemic. 
The Small Business Administration 
(SBA) received funding and authority 
through the CARES Act to modify 
existing loan programs and establish a 
new loan program to assist small 
businesses nationwide adversely 
impacted by the COVID–19 emergency. 
Section 1102 of the CARES Act 
temporarily permits SBA to guarantee 
100 percent of 7(a) loans under a new 
program titled the ‘‘Paycheck Protection 
Program.’’ Section 1106 of the CARES 
Act provides for forgiveness of up to the 
full principal amount of qualifying 
loans guaranteed under the Paycheck 
Protection Program, and requires SBA to 
issue guidance and regulations 
implementing section 1106 within 30 
days after the date of enactment of the 
CARES Act. On April 2, 2020, SBA 
posted its first PPP interim final rule (85 
FR 20811) (the First Interim Final Rule) 
covering in part loan forgiveness. On 
April 8, 2020 and April 26, 2020, SBA 
also posted Frequently Asked Questions 
relating to loan forgiveness.1 On April 
14, 2020, SBA posted an interim final 
rule covering in part loan forgiveness for 
individuals with self-employment 
income. On April 24, 2020, the 
President signed the Paycheck 
Protection Program and Health Care 
Enhancement Act (Pub. L. 116–139), 
which provided additional funding and 
authority for the Paycheck Protection 
Program. 
As described below, this interim final 
rule provides borrowers and lenders 
guidance on requirements governing the 
forgiveness of PPP loans. 
Four provisions of this interim final 
rule are an exercise of rulemaking 
authority by Treasury either jointly with 
SBA or by Treasury alone: (1) The de 
minimis exemption provided with 
respect to certain offers of rehire, (2) the 
additional reference period option 
provided for seasonal employers, (3) the 
de minimis exemption from the full- 
time equivalent employee reduction 
penalty when an employee is, for 
example, fired for cause, and (4) the de 
minimis exemption from the full-time 
equivalent employee reduction penalty 
when the borrower eliminates 
reductions by June 30, 2020. Otherwise, 
all provisions in this rule are an exercise 
of rulemaking authority by SBA alone. 
II. Comments and Immediate Effective 
Date 
The intent of the CARES Act is that 
SBA provide relief to America’s small 
businesses expeditiously. This intent, 
along with the dramatic decrease in 
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2 Payroll costs consist of compensation to 
employees (whose principal place of residence is 
the United States) in the form of salary, wages, 
commissions, or similar compensation; cash tips or 
the equivalent (based on employer records of past 
tips or, in the absence of such records, a reasonable, 
good-faith employer estimate of such tips); payment 
for vacation, parental, family, medical, or sick 
leave; allowance for separation or dismissal; 
payment for the provision of employee benefits 
consisting of group health care coverage, including 
insurance premiums, and retirement; payment of 
state and local taxes assessed on compensation of 
employees; and for an independent contractor or 
sole proprietor, wages, commissions, income, or net 
earnings from self-employment, or similar 
compensation. See 15 U.S.C. 636(a)(36)(A)(viii); 85 
FR 20811, 20813. 
economic activity nationwide, provides 
good cause for SBA to dispense with the 
30-day delayed effective date provided 
in the Administrative Procedure Act. 
Specifically, it is critical to meet 
lenders’ and borrowers’ need for clarity 
concerning loan forgiveness 
requirements as rapidly as possible 
because borrowers can seek loan 
forgiveness as early as eight-weeks 
following the date of disbursement of 
their PPP loans. Because the first PPP 
loans were disbursed after April 3, 
providing borrowers with certainty on 
loan forgiveness requirements and other 
program requirements will enhance 
their ability to carry out the purposes of 
the CARES Act in keeping their workers 
employed and paid, while at the same 
time taking necessary steps to maximize 
eligible loan forgiveness amounts. An 
immediate effective date also is 
necessary for PPP lenders who generally 
will make the loan forgiveness 
determinations as provided in the 
CARES Act. Specifically, an immediate 
effective date is necessary for lenders so 
that they will have both a degree of 
certainty and sufficient time to develop 
their systems and policies and 
procedures in order to timely review 
and process loan forgiveness 
applications, which borrowers are 
permitted to begin submitting at the end 
of their covered period. 
This interim final rule supplements 
previous regulations and guidance on 
the discrete issues related to loan 
forgiveness. This interim final rule is 
effective without advance notice and 
public comment because section 1114 of 
the CARES Act authorizes SBA to issue 
regulations to implement Title I of the 
CARES Act without regard to notice 
requirements. In addition, SBA has 
determined that there is good cause for 
dispensing with advance public notice 
and comment on the ground that it 
would be contrary to the public interest. 
Specifically, SBA has determined that 
advance notice and public comment 
would delay the ability of PPP 
borrowers to understand with certainty 
which payroll costs and nonpayroll 
costs that are incurred or paid during 
the covered period are eligible for 
forgiveness. By providing a high degree 
of certainty to PPP borrowers through 
this interim final rule, PPP borrowers 
will be able to take immediate steps to 
maximize their loan forgiveness 
amounts, for example, by either rehiring 
employees or not laying off employees 
during the covered period. This rule is 
being issued to allow for immediate 
implementation of the forgiveness 
component of this program. Although 
this interim final rule is effective 
immediately, comments are solicited 
from interested members of the public 
on all aspects of this interim final rule, 
including section III below. These 
comments must be submitted on or 
before July 1, 2020. SBA will consider 
these comments and the need for 
making any revisions as a result of these 
comments. 
III. Paycheck Protection Program 
Requirements for Loan Forgiveness 
Overview 
The CARES Act was enacted to 
provide immediate assistance to 
individuals, families, and organizations 
affected by the COVID–19 emergency. 
Among the provisions contained in the 
CARES Act are provisions authorizing 
SBA to temporarily guarantee loans 
under the Paycheck Protection Program 
(PPP). Loans under the PPP will be 100 
percent guaranteed by SBA, and the full 
principal amount of the loans may 
qualify for loan forgiveness. Additional 
information about the PPP is available 
in interim final rules published by SBA 
and Treasury in the Federal Register (85 
FR 20811, 85 FR 20817, 85 FR 21747, 
85 FR 23450, 85 FR 23917, 85 FR 26321, 
85 FR 26324, 85 FR 27287, 85 FR 29842, 
85 FR 29845, 85 FR 29847, 85 FR 30835) 
as well as an SBA interim final rule 
posted on May 20, 2020. 
1. General 
Section 1106(b) of the CARES Act 
provides that, subject to several 
important limitations, borrowers shall 
be eligible for forgiveness of their PPP 
loan in an amount equal to the sum of 
the following costs incurred and 
payments made during the covered 
period (as described in section III.3. 
below): 
(1) Payroll costs; 2 
(2) Interest payments on any business 
mortgage obligation on real or personal 
property that was incurred before 
February 15, 2020 (but not any 
prepayment or payment of principal); 
(3) Payments on business rent 
obligations on real or personal property 
under a lease agreement in force before 
February 15, 2020; and 
(4) Business utility payments for the 
distribution of electricity, gas, water, 
transportation, telephone, or internet 
access for which service began before 
February 15, 2020. 
This interim final rule uses the term 
‘‘nonpayroll costs’’ to refer to the 
payments described in (2), (3), and (4). 
As set forth in the First Interim Final 
Rule (85 FR 20811), eligible nonpayroll 
costs cannot exceed 25 percent of the 
loan forgiveness amount. 
2. Loan Forgiveness Process 
What is the general process to obtain 
loan forgiveness? 
To receive loan forgiveness, a 
borrower must complete and submit the 
Loan Forgiveness Application (SBA 
Form 3508 or lender equivalent) to its 
lender (or the lender servicing its loan). 
As a general matter, the lender will 
review the application and make a 
decision regarding loan forgiveness. The 
lender has 60 days from receipt of a 
complete application to issue a decision 
to SBA. If the lender determines that the 
borrower is entitled to forgiveness of 
some or all of the amount applied for 
under the statute and applicable 
regulations, the lender must request 
payment from SBA at the time the 
lender issues its decision to SBA. SBA 
will, subject to any SBA review of the 
loan or loan application, remit the 
appropriate forgiveness amount to the 
lender, plus any interest accrued 
through the date of payment, not later 
than 90 days after the lender issues its 
decision to SBA. If applicable, SBA will 
deduct EIDL Advance Amounts from 
the forgiveness amount remitted to the 
Lender as required by section 1110(e)(6) 
of the CARES Act. If SBA determines in 
the course of its review that the 
borrower was ineligible for the PPP loan 
based on the provisions of the CARES 
Act, SBA rules or guidance available at 
the time of the borrower’s loan 
application, or the terms of the 
borrower’s PPP loan application (for 
example, because the borrower lacked 
an adequate basis for the certifications 
that it made in its PPP loan application), 
the loan will not be eligible for loan 
forgiveness. The lender is responsible 
for notifying the borrower of the 
forgiveness amount. If only a portion of 
the loan is forgiven, or if the forgiveness 
request is denied, any remaining 
balance due on the loan must be repaid 
by the borrower on or before the two- 
year maturity of the loan. If the amount 
remitted by SBA to the lender exceeds 
the remaining principal balance of the 
PPP loan (because the borrower made 
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3 See 85 CFR 21747, 21749 (April 20, 2020). 
scheduled payments on the loan after 
the initial deferment period), the lender 
must remit the excess amount, 
including accrued interest, to the 
borrower. 
The general loan forgiveness process 
described above applies only to loan 
forgiveness applications that are not 
reviewed by SBA prior to the lender’s 
decision on the forgiveness application. 
In a separate interim final rule on SBA 
Loan Review Procedures and Related 
Borrower and Lender Responsibilities, 
SBA will describe its procedures for 
reviewing PPP loan applications and 
loan forgiveness applications. 
3. Payroll Costs Eligible for Loan 
Forgiveness 
a. When must payroll costs be incurred 
and/or paid to be eligible for 
forgiveness? 
In general, payroll costs paid or 
incurred during the eight consecutive 
week (56 days) covered period are 
eligible for forgiveness. Borrowers may 
seek forgiveness for payroll costs for the 
eight weeks beginning on either: 
i. The date of disbursement of the 
borrower’s PPP loan proceeds from the 
Lender (i.e., the start of the covered 
period); or 
ii. the first day of the first payroll 
cycle in the covered period (the 
‘‘alternative payroll covered period’’). 
Payroll costs are considered paid on 
the day that paychecks are distributed 
or the borrower originates an ACH 
credit transaction. Payroll costs incurred 
during the borrower’s last pay period of 
the covered period or the alternative 
payroll covered period are eligible for 
forgiveness if paid on or before the next 
regular payroll date; otherwise, payroll 
costs must be paid during the covered 
period (or alternative payroll covered 
period) to be eligible for forgiveness. 
Payroll costs are generally incurred on 
the day the employee’s pay is earned 
(i.e., on the day the employee worked). 
For employees who are not performing 
work but are still on the borrower’s 
payroll, payroll costs are incurred based 
on the schedule established by the 
borrower (typically, each day that the 
employee would have performed work). 
The Administrator of the Small 
Business Administration 
(Administrator), in consultation with 
the Secretary of the Treasury 
(Secretary), recognizes that the eight- 
week covered period will not always 
align with a borrower’s payroll cycle. 
For administrative convenience of the 
borrower, a borrower with a bi-weekly 
(or more frequent) payroll cycle may 
elect to use an alternative payroll 
covered period that begins on the first 
day of the first payroll cycle in the 
covered period and continues for the 
following eight weeks. If payroll costs 
are incurred during this eight-week 
alternative payroll covered period, but 
paid after the end of the alternative 
payroll covered period, such payroll 
costs will be eligible for forgiveness if 
they are paid no later than the first 
regular payroll date thereafter. 
The Administrator, in consultation 
with the Secretary, determined that this 
alternative computational method for 
payroll costs is justified by 
considerations of administrative 
feasibility for borrowers, as it will 
reduce burdens on borrowers and their 
payroll agents while achieving the 
paycheck protection purposes manifest 
throughout the CARES Act, including 
section 1102. Because this alternative 
computational method is limited to 
payroll cycles that are bi-weekly or 
more frequent, this computational 
method will yield a calculation that the 
Administrator does not expect to 
materially differ from the actual covered 
period, while avoiding unnecessary 
administrative burdens and enhancing 
auditability. 
Example: A borrower has a bi-weekly 
payroll schedule (every other week). 
The borrower’s eight-week covered 
period begins on June 1 and ends on 
July 26. The first day of the borrower’s 
first payroll cycle that starts in the 
covered period is June 7. The borrower 
may elect an alternative payroll covered 
period for payroll cost purposes that 
starts on June 7 and ends 55 days later 
(for a total of 56 days) on August 1. 
Payroll costs paid during this alternative 
payroll covered period are eligible for 
forgiveness. In addition, payroll costs 
incurred during this alternative payroll 
covered period are eligible for 
forgiveness as long as they are paid on 
or before the first regular payroll date 
occurring after August 1. Payroll costs 
that were both paid and incurred during 
the covered period (or alternative 
payroll covered period) may only be 
counted once. 
b. Are salary, wages, or commission 
payments to furloughed employees; 
bonuses; or hazard pay during the 
covered period eligible for loan 
forgiveness? 
Yes. The CARES Act defines the term 
‘‘payroll costs’’ broadly to include 
compensation in the form of salary, 
wages, commissions, or similar 
compensation. If a borrower pays 
furloughed employees their salary, 
wages, or commissions during the 
covered period, those payments are 
eligible for forgiveness as long as they 
do not exceed an annual salary of 
$100,000, as prorated for the covered 
period. The Administrator, in 
consultation with the Secretary, has 
determined that this interpretation is 
consistent with the text of the statute 
and advances the paycheck protection 
purposes of the statute by enabling 
borrowers to continue paying their 
employees even if those employees are 
not able to perform their day-to-day 
duties, whether due to lack of economic 
demand or public health considerations. 
This intent is reflected throughout the 
statute, including in section 1106(d)(4) 
of the Act, which provides that 
additional wages paid to tipped 
employees are eligible for forgiveness. 
The Administrator, in consultation with 
the Secretary, has also determined that, 
if an employee’s total compensation 
does not exceed $100,000 on an 
annualized basis, the employee’s hazard 
pay and bonuses are eligible for loan 
forgiveness because they constitute a 
supplement to salary or wages, and are 
thus a similar form of compensation. 
c. Are there caps on the amount of loan 
forgiveness available for owner- 
employees and self-employed 
individuals’ own payroll compensation? 
Yes, the amount of loan forgiveness 
requested for owner-employees and self- 
employed individuals’ payroll 
compensation can be no more than the 
lesser of 8/52 of 2019 compensation 
(i.e., approximately 15.38 percent of 
2019 compensation) or $15,385 per 
individual in total across all businesses. 
See 85 FR 21747, 21750. 
In particular, owner-employees are 
capped by the amount of their 2019 
employee cash compensation and 
employer retirement and health care 
contributions made on their behalf. 
Schedule C filers are capped by the 
amount of their owner compensation 
replacement, calculated based on 2019 
net profit.3 General partners are capped 
by the amount of their 2019 net earnings 
from self-employment (reduced by 
claimed section 179 expense deduction, 
unreimbursed partnership expenses, 
and depletion from oil and gas 
properties) multiplied by 0.9235. No 
additional forgiveness is provided for 
retirement or health insurance 
contributions for self-employed 
individuals, including Schedule C filers 
and general partners, as such expenses 
are paid out of their net self- 
employment income. 
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4 Further information regarding how borrowers 
will report information concerning rejected rehire 
offers to state unemployment insurance offices will 
be provided on SBA’s website. 
5 Section 1106(d)(6) is the sole joint rulemaking 
authority exercised in this interim final rule. All 
other provisions of this interim final rule are an 
exercise of rulemaking authority by SBA, except as 
expressly noted otherwise. 
6 Section 1106(d)(5) specifies that this reference 
period is between February 15, 2020 and 30 days 
after the date of enactment of the CARES Act or 
April 26, 2020 (the safe harbor period). 
7 This decision to permit seasonal employers to 
use, as a reference period, any consecutive 12-week 
period between May 1, 2019 and September 15, 
2019 is an exercise of the Secretary’s rulemaking 
authority under section 1109 of the CARES Act. 
This reference period is consistent with the interim 
final rule on seasonal employers issued by 
Treasury. See 85 FR 23917 (April 30, 2020). 
4. Nonpayroll Costs Eligible for Loan 
Forgiveness 
a. When must nonpayroll costs be 
incurred and/or paid to be eligible for 
forgiveness? 
A nonpayroll cost is eligible for 
forgiveness if it was: 
i. Paid during the covered period; or 
ii. incurred during the covered period 
and paid on or before the next regular 
billing date, even if the billing date is 
after the covered period. 
Example: A borrower’s covered 
period begins on June 1 and ends on 
July 26. The borrower pays its May and 
June electricity bill during the covered 
period and pays its July electricity bill 
on August 10, which is the next regular 
billing date. The borrower may seek 
loan forgiveness for its May and June 
electricity bills, because they were paid 
during the covered period. In addition, 
the borrower may seek loan forgiveness 
for the portion of its July electricity bill 
through July 26 (the end of the covered 
period), because it was incurred during 
the covered period and paid on the next 
regular billing date. 
The Administrator, in consultation 
with the Secretary, has determined that 
this interpretation provides an 
appropriate degree of borrower 
flexibility while remaining consistent 
with the text of section 1106(b). The 
Administrator believes that this 
simplified approach to calculation of 
forgivable nonpayroll costs is also 
supported by considerations of 
administrative convenience for 
borrowers, and the Administrator notes 
that the 25 percent cap on nonpayroll 
costs will avoid excessive inclusion of 
nonpayroll costs. 
b. Are advance payments of interest on 
mortgage obligations eligible for loan 
forgiveness? 
No. Advance payments of interest on 
a covered mortgage obligation are not 
eligible for loan forgiveness because the 
CARES Act’s loan forgiveness 
provisions regarding mortgage 
obligations specifically exclude 
‘‘prepayments.’’ Principal on mortgage 
obligations is not eligible for forgiveness 
under any circumstances. 
5. Reductions to Loan Forgiveness 
Amount 
Section 1106 of the CARES Act 
specifically requires certain reductions 
in a borrower’s loan forgiveness amount 
based on reductions in full-time 
equivalent employees or in employee 
salary and wages during the covered 
period, subject to an important statutory 
exemption for borrowers who have 
rehired employees and restored salary 
and wage levels by June 30, 2020 (with 
limitations). In addition, SBA and 
Treasury are adopting a regulatory 
exemption to the reduction rules for 
borrowers who have offered to rehire 
employees or restore employee hours, 
even if the employees have not 
accepted. The instructions to the loan 
forgiveness application and the 
guidance below explains how the 
statutory forgiveness reduction formulas 
work. 
a. Will a borrower’s loan forgiveness 
amount be reduced if the borrower laid- 
off or reduced the hours of an employee, 
then offered to rehire the same 
employee for the same salary and same 
number of hours, or restore the 
reduction in hours, but the employee 
declined the offer? 
No. Employees whom the borrower 
offered to rehire are generally exempt 
from the CARES Act’s loan forgiveness 
reduction calculation. This exemption is 
also available if a borrower previously 
reduced the hours of an employee and 
offered to restore the employee’s hours 
at the same salary or wages. 
Specifically, in calculating the loan 
forgiveness amount, a borrower may 
exclude any reduction in full-time 
equivalent employee headcount that is 
attributable to an individual employee 
if: 
i. The borrower made a good faith, 
written offer to rehire such employee 
(or, if applicable, restore the reduced 
hours of such employee) during the 
covered period or the alternative payroll 
covered period; 
ii. the offer was for the same salary or 
wages and same number of hours as 
earned by such employee in the last pay 
period prior to the separation or 
reduction in hours; 
iii. the offer was rejected by such 
employee; 
iv. the borrower has maintained 
records documenting the offer and its 
rejection; and 
v. the borrower informed the 
applicable state unemployment 
insurance office of such employee’s 
rejected offer of reemployment within 
30 days of the employee’s rejection of 
the offer.4 
The Administrator and the Secretary 
determined that this exemption is an 
appropriate exercise of their joint 
rulemaking authority to grant de 
minimis exemptions under section 
1106(d)(6).5 Section 1106(d)(2) of the 
CARES Act reduces the amount of the 
PPP loan that may be forgiven if the 
borrower reduces full-time equivalent 
employees during the covered period as 
compared to a base period selected by 
the borrower. Section 1106(d)(5) of the 
CARES Act waives this reduction in the 
forgiveness amount if the borrower 
eliminates the reduction in full-time 
equivalent employees occurring during 
a different statutory reference period 6 
by not later than June 30, 2020. The 
Administrator and the Secretary believe 
that the additional exemption set forth 
above is consistent with the purposes of 
the CARES Act and provides borrowers 
appropriate flexibility in the current 
economic climate. The Administrator, 
in consultation with the Secretary, have 
determined that the exemption is de 
minimis for two reasons. First, it is 
reasonable to anticipate that most laid- 
off employees will accept the offer of 
reemployment in light of current labor 
market conditions. Second, to the extent 
this exemption allows employers to cure 
FTE reductions attributable to 
terminations that occurred before 
February 15, 2020 (the start of the 
statutory FTE reduction safe harbor 
period), it is reasonable to anticipate 
those reductions will represent a 
relatively small portion of aggregate 
employees given the historically strong 
labor market conditions before the 
COVID–19 emergency. 
b. What effect does a reduction in a 
borrower’s number of full-time 
equivalent (FTE) employees have on the 
loan forgiveness amount? 
In general, a reduction in FTE 
employees during the covered period or 
the alternative payroll covered period 
reduces the loan forgiveness amount by 
the same percentage as the percentage 
reduction in FTE employees. The 
borrower must first select a reference 
period: (i) February 15, 2019 through 
June 30, 2019; (ii) January 1, 2020 
through February 29, 2020; or (iii) in the 
case of a seasonal employer, either of 
the two preceding methods or a 
consecutive 12-week period between 
May 1, 2019 and September 15, 2019.7 
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If the average number of FTE employees 
during the covered period or the 
alternative payroll covered period is less 
than during the reference period, the 
total eligible expenses available for 
forgiveness is reduced proportionally by 
the percentage reduction in FTE 
employees. For example, if a borrower 
had 10.0 FTE employees during the 
reference period and this declined to 8.0 
FTE employees during the covered 
period, the percentage of FTE 
employees declined by 20 percent and 
thus only 80 percent of otherwise 
eligible expenses are available for 
forgiveness. 
This formula implements section 
1106(d)(2) of the CARES Act, which 
expressly requires that the loan 
forgiveness amount be reduced by the 
amount resulting from multiplying the 
amount that the borrower would 
otherwise receive by the quotient of the 
average FTE employees in the covered 
period divided by the average FTE 
employees in the relevant reference 
period. 
c. What does ‘‘full-time equivalent 
employee’’ mean? 
Full-time equivalent employee means 
an employee who works 40 hours or 
more, on average, each week. The hours 
of employees who work less than 40 
hours are calculated as proportions of a 
single full-time equivalent employee 
and aggregated, as explained further 
below in subsection d. 
The CARES Act does not define the 
term ‘‘full-time equivalent employee,’’ 
and the Administrator, in consultation 
with the Secretary, has determined that 
full-time equivalent is best understood 
to mean 40 hours or more of work each 
week. The Administrator considered 
using a 30 hour standard, but 
determined that 40 hours or more of 
work each week better reflects what 
constitutes full-time employment for the 
vast majority of American workers. 
d. How should a borrower calculate its 
number of full-time equivalent (FTE) 
employees? 
Borrowers seeking forgiveness must 
document their average number of FTE 
employees during the covered period (or 
the alternative payroll covered period) 
and their selected reference period. For 
purposes of this calculation, borrowers 
must divide the average number of 
hours paid for each employee per week 
by 40, capping this quotient at 1.0. For 
example, an employee who was paid 48 
hours per week during the covered 
period would be considered to be an 
FTE employee of 1.0. 
For employees who were paid for less 
than 40 hours per week, borrowers may 
choose to calculate the full-time 
equivalency in one of two ways. First, 
the borrower may calculate the average 
number of hours a part-time employee 
was paid per week during the covered 
period. For example, if an employee was 
paid for 30 hours per week on average 
during the covered period, the employee 
could be considered to be an FTE 
employee of 0.75. Similarly, if an 
employee was paid for ten hours per 
week on average during the covered 
period, the employee could be 
considered to be an FTE employee of 
0.25. Second, for administrative 
convenience, borrowers may elect to use 
a full-time equivalency of 0.5 for each 
part-time employee. The Administrator 
recognizes that not all borrowers 
maintain hours-worked data, and has 
decided to afford such borrowers this 
flexibility in calculating the full-time 
equivalency of their part-time 
employees. 
Borrowers may select only one of 
these two methods, and must apply that 
method consistently to all of their part- 
time employees for the covered period 
or the alternative payroll covered period 
and the selected reference period. In 
either case, the borrower shall provide 
the aggregate total of FTE employees for 
both the selected reference period and 
the covered period or the alternative 
payroll covered period, by adding 
together all of the employee-level FTE 
employee calculations. The borrower 
must then divide the average FTE 
employees during the covered period or 
the alternative payroll covered period 
by the average FTE employees during 
the selected reference period, resulting 
in the reduction quotient. 
The Administrator, in consultation 
with the Secretary, determined that 
because the Act does not define the term 
FTE employee, this approach to 
measurement of FTE is a reasonable and 
appropriate exercise of the 
Administrator’s rulemaking authority, 
as it balances the need for a reasonable 
measurement of FTE employee 
headcount with the need to limit 
borrower compliance burdens and 
ensure administrative feasibility. 
e. What effect does a borrower’s 
reduction in employees’ salary or wages 
have on the loan forgiveness amount? 
Under section 1106(d)(3) of the 
CARES Act, a reduction in an 
employee’s salary or wages in excess of 
25 percent will generally result in a 
reduction in the loan forgiveness 
amount, unless an exception applies. 
Specifically, for each new employee in 
2020 and each existing employee who 
was not paid more than the annualized 
equivalent of $100,000 in any pay 
period in 2019, the borrower must 
reduce the total forgiveness amount by 
the total dollar amount of the salary or 
wage reductions that are in excess of 25 
percent of base salary or wages between 
January 1, 2020 and March 31, 2020 (the 
reference period), subject to exceptions 
for borrowers who restore reduced 
wages or salaries (see g. below). This 
reduction calculation is performed on a 
per employee basis, not in the aggregate. 
Example: A borrower reduced a full- 
time employee’s weekly salary from 
$1,000 per week during the reference 
period to $700 per week during the 
covered period. The employee 
continued to work on a full-time basis 
during the covered period with an FTE 
of 1.0. In this case, the first $250 (25 
percent of $1,000) is exempted from the 
reduction. Borrowers seeking 
forgiveness would list $400 as the 
salary/hourly wage reduction for that 
employee (the extra $50 weekly 
reduction multiplied by eight weeks). 
The provision implements section 
1106(d)(3) of the CARES Act, which 
provides that ‘‘the amount of loan 
forgiveness shall be reduced by the 
amount of any reduction in total salary 
or wages of any employee [who did not 
receive, during any single pay period 
during 2019, wages or salary at an 
annualized rate of pay in an amount 
more than $100,000] during the covered 
period that is in excess of 25 percent of 
the total salary or wages of the employee 
during the most recent full quarter 
during which the employee was 
employed before the covered period.’’ 
f. How should borrowers seeking loan 
forgiveness account for the reduction 
based on a reduction in the number of 
employees (Section 1106(d)(2)) relative 
to the reduction relating to salary and 
wages (Section 1106(d)(3))? 
To ensure that borrowers are not 
doubly penalized, the salary/wage 
reduction applies only to the portion of 
the decline in employee salary and 
wages that is not attributable to the FTE 
reduction. 
The Act does not address the 
intersection between the FTE employee 
reduction provision in section 
1106(d)(2) and the salary/wage 
reduction provision in section 
1106(d)(3). To help ensure uniformity 
across all borrowers in applying the FTE 
reduction provision and the salary/wage 
reduction provision, the Administrator, 
in consultation with the Secretary, has 
determined that the salary/wage 
reduction applies only to the portion of 
the decline in employee salary and 
wages that is not attributable to the FTE 
reduction. This approach will help 
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8 In light of the flexibility the Act provides to 
borrowers with respect to their selection of the 
reference time period for any potential reduction in 
loan forgiveness, and the statutory authority for 
SBA and the Department of the Treasury to grant 
de minimis exemptions from this requirement, if 
the borrower meets the requirements for the FTE 
reduction safe harbor, it will not be subject to any 
loan forgiveness reduction based on a reduction in 
FTE employees. 
ensure that borrowers are not doubly 
penalized for reductions. 
Example: An hourly wage employee 
had been working 40 hours per week 
during the borrower selected reference 
period (FTE employee of 1.0) and the 
borrower reduced the employee’s hours 
to 20 hours per week during the covered 
period (FTE employee of 0.5). There was 
no change to the employee’s hourly 
wage during the covered period. 
Because the hourly wage did not 
change, the reduction in the employee’s 
total wages is entirely attributable to the 
FTE employee reduction and the 
borrower is not required to conduct a 
salary/wage reduction calculation for 
that employee. 
The Administrator considered 
applying the salary/wage reduction 
provision in addition to the FTE 
reduction in situations similar to the 
example above because section 
1106(d)(3) refers to reductions in ‘‘total 
salary or wages’’ in excess of 25 percent. 
However, the Administrator determined 
that, based on the structure of section 
1106(d)(2) and section 1106(d)(3), 
Congress intended to distinguish 
between an FTE reduction on the one 
hand and a reduction in hourly wages 
or salary on the other hand. This 
interpretation harmonizes the two loan 
forgiveness reduction provisions in a 
logical manner consistent with the 
statute. 
g. If a borrower restores reductions 
made to employee salaries and wages or 
FTE employees by not later than June 
30, 2020, can the borrower avoid a 
reduction in its loan forgiveness 
amount? 
Yes. Section 1106(d)(5) of the CARES 
Act provides that if certain employee 
salaries and wages were reduced 
between February 15, 2020 and April 
26, 2020 (the safe harbor period) but the 
borrower eliminates those reductions by 
June 30, 2020 or earlier, the borrower is 
exempt from any reduction in loan 
forgiveness amount that would 
otherwise be required due to reductions 
in salaries and wages under section 
1106(d)(3) of the CARES Act. Similarly, 
if a borrower eliminates any reductions 
in FTE employees occurring during the 
safe harbor period by June 30, 2020 or 
earlier, the borrower is exempt from any 
reduction in loan forgiveness amount 
that would otherwise be required due to 
reductions in FTE employees.8 
This provision implements section 
1106(d)(5) of the CARES Act, which 
gives borrowers an opportunity to cure 
reductions in FTEs, salary/wage 
reductions in excess of 25 percent, or 
both, using the applicable methodology 
set forth in section 1106(d)(5). The Act 
provides that the reduction in FTEs or 
the reduction in salary/hourly wages 
must be eliminated ‘‘not later than June 
30, 2020.’’ This does not change or 
affect the requirement that at least 75 
percent of the loan forgiveness amount 
must be attributable to payroll costs. 
h. Will a borrower’s loan forgiveness 
amount be reduced if an employee is 
fired for cause, voluntarily resigns, or 
voluntarily requests a schedule 
reduction? 
No. When an employee of the 
borrower is fired for cause, voluntarily 
resigns, or voluntarily requests a 
reduced schedule during the covered 
period or the alternative payroll covered 
period (FTE reduction event), the 
borrower may count such employee at 
the same full-time equivalency level 
before the FTE reduction event when 
calculating the section 1106(d)(2) FTE 
employee reduction penalty. The 
Administrator and the Secretary have 
decided to exempt such employees from 
the calculation of the FTE reduction 
penalty. 
Section 1106 is silent concerning how 
to account for employees who are fired 
for cause, voluntarily resign, or 
voluntarily request a reduced schedule. 
The Administrator and the Secretary 
have determined that such an 
exemption is de minimis, because a 
limited number of borrowers will face 
an FTE reduction event during the 
covered period or the alternative payroll 
covered period. Further, borrowers 
should not be penalized for changes in 
employee headcount that are the result 
of employee actions and requests. 
Borrowers that avail themselves of this 
de minimis exemption shall maintain 
records demonstrating that each such 
employee was fired for cause, 
voluntarily resigned, or voluntarily 
requested a schedule reduction. The 
borrower shall provide such 
documentation upon request. 
6. Documentation Requirements 
What must borrowers submit for 
forgiveness of their PPP loans? 
The loan forgiveness application form 
details the documentation requirements; 
specifically, documentation each 
borrower must submit with its Loan 
Forgiveness Application (SBA Form 
3508 or a lender equivalent), 
documentation each borrower is 
required to maintain and make available 
upon request, and documentation each 
borrower may voluntarily submit with 
its loan forgiveness application. Section 
1106(e) of the Act requires borrowers to 
submit to their lenders an application, 
which includes certain documentation, 
and section 1106(f) provides that the 
borrower shall not receive forgiveness 
without submitting the required 
documentation. For purposes of 
administrative convenience for both 
lenders and borrowers, the 
Administrator, in consultation with the 
Secretary, has determined that requiring 
borrowers to submit certain 
documentation, maintain certain 
documentation, and choose whether to 
submit additional documentation will 
reduce initial reporting burdens on 
borrowers and reduce initial 
recordkeeping burdens on lenders. 
7. Additional Information 
SBA may provide further guidance, if 
needed, through SBA notices that will 
be posted on SBA’s website at 
www.sba.gov. Questions on the 
Paycheck Protection Program may be 
directed to the Lender Relations 
Specialist in the local SBA Field Office. 
The local SBA Field Office may be 
found at https://www.sba.gov/tools/ 
local-assistance/districtoffices. 
Compliance With Executive Orders 
12866, 12988, 13132, 13563, and 13771, 
the Paperwork Reduction Act (44 
U.S.C. Ch. 35), and the Regulatory 
Flexibility Act (5 U.S.C. 601–612) 
Executive Orders 12866, 13563, and 
13771 
This interim final rule is 
economically significant for the 
purposes of Executive Orders 12866 and 
13563, and is considered a major rule 
under the Congressional Review Act. 
SBA, however, is proceeding under the 
emergency provision at Executive Order 
12866 Section 6(a)(3)(D), based on the 
need to move expeditiously to mitigate 
the current economic conditions arising 
from the COVID–19 emergency. This 
rule’s designation under Executive 
Order 13771 will be informed by public 
comment. 
Executive Order 12988 
SBA has drafted this rule, to the 
extent practicable, in accordance with 
the standards set forth in section 3(a) 
and 3(b)(2) of Executive Order 12988, to 
minimize litigation, eliminate 
ambiguity, and reduce burden. The rule 
has no preemptive or retroactive effect. 
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33010 
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Executive Order 13132 
SBA has determined that this rule 
will not have substantial direct effects 
on the States, on the relationship 
between the National Government and 
the States, or on the distribution of 
power and responsibilities among the 
various layers of government. Therefore, 
SBA has determined that this rule has 
no federalism implications warranting 
preparation of a federalism assessment. 
Paperwork Reduction Act, 44 U.S.C. 
Chapter 35 
SBA has determined that this rule 
will impose a new reporting 
requirement on borrowers who request 
forgiveness of their PPP loan. SBA has 
developed Form 3508, Paycheck 
Protection Program—Loan Forgiveness 
Application, for use in collecting the 
information required to determine 
whether a borrower is eligible for loan 
forgiveness. SBA obtained approval of 
Form 3508 from the Office of 
Management and Budget (OMB) as a 
modification to the existing PPP 
collection of information (OMB Control 
Number (3245–0407). This collection of 
information was approved under 
emergency procedures to facilitate 
immediate implementation of the PPP 
and expires on October 31, 2020. 
Regulatory Flexibility Act (RFA) 
The Regulatory Flexibility Act (RFA) 
generally requires that when an agency 
issues a proposed rule, or a final rule 
pursuant to section 553(b) of the APA or 
another law, the agency must prepare a 
regulatory flexibility analysis that meets 
the requirements of the RFA and 
publish such analysis in the Federal 
Register. 5 U.S.C. 603, 604. Specifically, 
the RFA normally requires agencies to 
describe the impact of a rulemaking on 
small entities by providing a regulatory 
impact analysis. Such analysis must 
address the consideration of regulatory 
options that would lessen the economic 
effect of the rule on small entities. The 
RFA defines a ‘‘small entity’’ as (1) a 
proprietary firm meeting the size 
standards of the Small Business 
Administration (SBA); (2) a nonprofit 
organization that is not dominant in its 
field; or (3) a small government 
jurisdiction with a population of less 
than 50,000. 5 U.S.C. 601(3)–(6). Except 
for such small government jurisdictions, 
neither State nor local governments are 
‘‘small entities.’’ Similarly, for purposes 
of the RFA, individual persons are not 
small entities. The requirement to 
conduct a regulatory impact analysis 
does not apply if the head of the agency 
‘‘certifies that the rule will not, if 
promulgated, have a significant 
economic impact on a substantial 
number of small entities.’’ 5 U.S.C. 
605(b). The agency must, however, 
publish the certification in the Federal 
Register at the time of publication of the 
rule, ‘‘along with a statement providing 
the factual basis for such certification.’’ 
If the agency head has not waived the 
requirements for a regulatory flexibility 
analysis in accordance with the RFA’s 
waiver provision, and no other RFA 
exception applies, the agency must 
prepare the regulatory flexibility 
analysis and publish it in the Federal 
Register at the time of promulgation or, 
if the rule is promulgated in response to 
an emergency that makes timely 
compliance impracticable, within 180 
days of publication of the final rule. 5 
U.S.C. 604(a), 608(b). Rules that are 
exempt from notice and comment are 
also exempt from the RFA requirements, 
including conducting a regulatory 
flexibility analysis, when among other 
things the agency for good cause finds 
that notice and public procedure are 
impracticable, unnecessary, or contrary 
to the public interest. SBA Office of 
Advocacy guide: How to Comply with 
the Regulatory Flexibility Act, Ch.1. p.9. 
Accordingly, SBA is not required to 
conduct a regulatory flexibility analysis. 
Jovita Carranza, 
Administrator Small Business 
Administration. 
Michael Faulkender, 
Assistant Secretary for Economic Policy, 
Department of the Treasury. 
[FR Doc. 2020–11536 Filed 5–28–20; 8:45 am] 
BILLING CODE 8026–03–P 
SMALL BUSINESS ADMINISTRATION 
13 CFR Part 120 
[Docket Number SBA–2020–0033] 
RIN 3245–AH47 
Business Loan Program Temporary 
Changes; Paycheck Protection 
Program—SBA Loan Review 
Procedures and Related Borrower and 
Lender Responsibilities 
AGENCY: U.S. Small Business 
Administration. 
ACTION: Interim final rule. 
SUMMARY: On April 2, 2020, the U.S. 
Small Business Administration (SBA) 
posted an interim final rule announcing 
the implementation of the Coronavirus 
Aid, Relief, and Economic Security Act 
(CARES Act). The CARES Act 
temporarily adds a new program, titled 
the ‘‘Paycheck Protection Program,’’ to 
the SBA’s 7(a) Loan Program. The 
CARES Act also provides for forgiveness 
of up to the full principal amount of 
qualifying loans guaranteed under the 
Paycheck Protection Program (PPP). The 
PPP is intended to provide economic 
relief to small businesses nationwide 
adversely impacted by the Coronavirus 
Disease 2019 (COVID–19). SBA posted 
additional interim final rules on April 3, 
2020, April 14, 2020, April 24, 2020, 
April 28, 2020, April 30, 2020, May 5, 
2020, May 8, 2020, May 13, 2020, May 
14, 2020, May 18, 2020, and May 20, 
2020, and the Department of the 
Treasury (Treasury) posted an 
additional interim final rule on April 
27, 2020. SBA and Treasury posted an 
interim final rule on Loan Forgiveness 
contemporaneously with this interim 
final rule on May 22, 2020. This interim 
final rule supplements the previously 
posted interim final rules in order to 
inform borrowers and lenders of SBA’s 
process for reviewing PPP loan 
applications and loan forgiveness 
applications, and requests public 
comment. 
DATES:
Effective date: This rule is effective 
May 28, 2020. 
Applicability date: This interim final 
rule applies to loan applications and 
loan forgiveness applications submitted 
under the Paycheck Protection Program. 
Comment date: Comments must be 
received on or before July 1, 2020. 
ADDRESSES: You may submit comments, 
identified by number SBA–2020–0033 
through the Federal eRulemaking Portal: 
http://www.regulations.gov. Follow the 
instructions for submitting comments. 
SBA will post all comments on 
www.regulations.gov. If you wish to 
submit confidential business 
information (CBI) as defined in the User 
Notice at www.regulations.gov, please 
send an email to ppp-ifr@sba.gov. 
Highlight the information that you 
consider to be CBI and explain why you 
believe SBA should hold this 
information as confidential. SBA will 
review the information and make the 
final determination whether it will 
publish the information. 
FOR FURTHER INFORMATION CONTACT: A 
Call Center Representative at 833–572– 
0502, or the local SBA Field Office; the 
list of offices can be found at https://
www.sba.gov/tools/local-assistance/ 
districtoffices. 
SUPPLEMENTARY INFORMATION: 
I. Background Information 
On March 13, 2020, President Trump 
declared the ongoing Coronavirus 
Disease 2019 (COVID–19) pandemic of 
sufficient severity and magnitude to 
warrant an emergency declaration for all 
States, territories, and the District of 
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