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Business Loan Program Temporary Changes; Paycheck Protection Program as Amended by Economic Aid Act (January 14, 2021)

Summary

This is a Small Business Administration and Department of the Treasury interim final rule, Business Loan Program Temporary Changes; Paycheck Protection Program as Amended by Economic Aid Act, published in the Federal Register, Vol. 86, No. 9, on Thursday, January 14, 2021. The summary says it is intended to govern new PPP loans made under the Economic Aid Act, as well as applications for loan forgiveness on existing PPP loans where the forgiveness payment has not been remitted. It says that in the rule Treasury exercises its authority under section 1109 of the CARES Act to allow borrowers of first draw PPP loans to use 2019 or 2020 to calculate their maximum loan amount. The text also says SBA intends to issue a consolidated rule governing all aspects of loan forgiveness and the loan review process.

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Department Of The Treasury Interim Final Rule On Paycheck Protection Program As Amended By
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Department Of The Treasury Interim Final Rule On Paycheck Protection Program As Amended By Economic 490491Bb05

Cite this document

“Business Loan Program Temporary Changes; Paycheck Protection Program as Amended by Economic Aid Act (January 14, 2021).” Original at home.treasury.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/department-of-the-treasury-interim-final-rule-on-paycheck-protection-program-as-amended-by-economic-490491bb05/, SHA-256 0efd518cd47c23341cc9b25ece1d1476f174a174ef5620938db2caf1067e6d1a.

Full text

                                              3692              Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations

                                              SMALL BUSINESS ADMINISTRATION                           published separately, and SBA intends                  www.sba.gov/tools/local-assistance/
                                                                                                      to issue a consolidated rule governing                 districtoffices.
                                              13 CFR Parts 113, 120, and 121                          all aspects of loan forgiveness and the                SUPPLEMENTARY INFORMATION:
                                              [Docket No. SBA–2021–0001]                              loan review process as well. This
                                                                                                      interim final rule is intended to govern               I. Background Information
                                              RIN 3245–AH62                                           new PPP loans made under the                             On March 13, 2020, President Trump
                                                                                                      Economic Aid Act, as well as                           declared the ongoing Coronavirus
                                              DEPARTMENT OF THE TREASURY                              applications for loan forgiveness on                   Disease 2019 (COVID–19) pandemic of
                                              RIN 1505–AC74                                           existing PPP loans where the loan                      sufficient severity and magnitude to
                                                                                                      forgiveness payment has not been                       warrant an emergency declaration for all
                                              Business Loan Program Temporary                         remitted, and should not be construed                  states, territories, and the District of
                                              Changes; Paycheck Protection                            to alter or affect the requirements                    Columbia. With the COVID–19
                                              Program as Amended by Economic                          applicable to PPP loans closed prior to                emergency, many small businesses
                                              Aid Act                                                 its enactment, unless the provisions                   nationwide continue to experience
                                              AGENCY: U.S. Small Business
                                                                                                      apply retroactively consistent with                    economic hardship as a direct result of
                                              Administration; Department of the                       specific applicability provisions of the               the Federal, State, and local public
                                              Treasury.                                               Economic Aid Act as identified in this                 health measures that continue to be
                                                                                                      rule. In addition, in this interim final               taken to minimize the public’s exposure
                                              ACTION: Interim final rule.
                                                                                                      rule, Treasury exercises its authority                 to the virus. In addition, based on the
                                              SUMMARY: On April 2, 2020, the U.S.                     under section 1109 of the CARES Act to                 advice of public health officials, other
                                              Small Business Administration (SBA)                     allow borrowers of first draw PPP loans                voluntary measures continue to be
                                              posted an interim final rule announcing                 to use 2019 or 2020 to calculate their                 observed, resulting in a decrease in
                                              the implementation of sections 1102                     maximum loan amount.                                   economic activity as the public avoids
                                              and 1106 of the Coronavirus Aid, Relief,                DATES:                                                 malls, retail stores, and other
                                              and Economic Security Act (CARES                           Effective date: Unless otherwise                    businesses.
                                              Act). Section 1102 of the CARES Act                     specified in this interim final rule, the                On March 27, 2020, the President
                                              temporarily adds a new program, titled                  provisions of this interim final rule are              signed the Coronavirus Aid, Relief, and
                                              the ‘‘Paycheck Protection Program,’’ to                 effective January 12, 2021.                            Economic Security Act (the CARES Act
                                              the SBA’s 7(a) Loan Program. Section                       Applicability date: This interim final              or the Act) (Pub. L. 116–136) to provide
                                              1106 of the CARES Act provides for                      rule applies to loan applications,                     emergency assistance and health care
                                              forgiveness of up to the full principal                 including requests for increases, and                  response for individuals, families, and
                                              amount of qualifying loans guaranteed                   applications for loan forgiveness                      businesses affected by the coronavirus
                                              under the Paycheck Protection Program                   submitted under the Paycheck                           pandemic. The Small Business
                                              (PPP). The PPP is intended to provide                   Protection Program following enactment                 Administration (SBA) received funding
                                              economic relief to small businesses                     of the Economic Aid Act. This interim                  and authority through the Act to modify
                                              nationwide adversely impacted by the                    final rule also applies to loan                        existing loan programs and establish a
                                              Coronavirus Disease 2019 (COVID–19).                    forgiveness applications submitted                     new loan program to assist small
                                              Subsequently, SBA published twenty-                     under the Paycheck Protection Program                  businesses nationwide adversely
                                              three interim final rules providing                     before enactment of the Economic Aid                   impacted by the COVID–19 emergency.
                                              additional guidance on the PPP (some of                 Act where SBA has not remitted the                       Section 1102 of the CARES Act
                                              which were jointly issued with the                      forgiveness payment.                                   temporarily permitted SBA to guarantee
                                              Department of the Treasury) and                            Comment date: Comments must be                      100 percent of 7(a) loans under a new
                                              Treasury published one interim final                    received on or before February 16, 2021.               program titled the ‘‘Paycheck Protection
                                              rule. On December 27, 2020, the                         ADDRESSES: You may submit comments,                    Program,’’ pursuant to section 7(a)(36)
                                              Economic Aid to Hard-Hit Small                          identified by number SBA–2021–0001                     of the Small Business Act (15 U.S.C.
                                              Businesses, Nonprofits, and Venues Act                  through the Federal eRulemaking Portal:                636(a)(36)). Section 1106 of the CARES
                                              (Economic Aid Act) became law. The                      http://www.regulations.gov. Follow the                 Act provided for forgiveness of up to the
                                              Economic Aid Act extends the authority                  instructions for submitting comments.                  full principal amount of qualifying
                                              to make PPP loans through March 31,                        SBA will post all comments on                       loans guaranteed under the Paycheck
                                              2021 and revises certain PPP                            www.regulations.gov. If you wish to                    Protection Program. A more detailed
                                              requirements. This interim final rule                   submit confidential business                           discussion of sections 1102 and 1106 of
                                              incorporates the Economic Aid Act                       information (CBI) as defined in the User               the Act is found in section III.
                                              amendments required to be                               Notice at www.regulations.gov, please                    On April 24, 2020, the President
                                              implemented by regulation within 10                     send an email to ppp-ifr@sba.gov. All                  signed the Paycheck Protection Program
                                              days of enactment. For ease of borrower                 other comments must be submitted                       and Health Care Enhancement Act (Pub.
                                              and lender reference, this interim final                through the Federal eRulemaking Portal                 L. 116–139), which provided additional
                                              rule also consolidates the interim final                described above. Highlight the                         funding and authority for the PPP. On
                                              rules (and important guidance) issued to                information that you consider to be CBI                June 5, 2020, the President signed the
                                              date governing borrower eligibility,                    and explain why you believe SBA                        Paycheck Protection Program Flexibility
                                              lender eligibility, and PPP application                 should hold this information as                        Act of 2020 (Flexibility Act) (Pub. L.
                                              and origination requirements for new                    confidential. SBA will review the                      116–142), which changed key




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                                              PPP loans, as well as provides general                  information and make the final                         provisions of the Paycheck Protection
                                              rules relating to loan increases and loan               determination whether it will publish                  Program, including provisions relating
                                              forgiveness. This rule is not intended to               the information.                                       to the maturity of PPP loans, the deferral
                                              substantively alter or affect PPP rules                 FOR FURTHER INFORMATION CONTACT: Call                  of PPP loan payments, and the
                                              that were not amended by the Economic                   Center Representative at 833–572–0502,                 forgiveness of PPP loans. Section 3(d) of
                                              Aid Act. Additional rules related to                    or the local SBA Field Office; the list of             the Flexibility Act provided that the
                                              second draw PPP loans will be                           offices can be found at https://                       amendments relating to PPP loan


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                                                                  Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations                                         3693

                                              forgiveness and extension of the deferral                85 FR 29847 (posted on May 14, 2020                    criteria—the maximum interest rate,
                                              period for PPP loans were effective as if                and published on May 19, 2020); 85 FR                  maximum loan amount, and other
                                              included in the CARES Act, which                         30835 (posted on May 18, 2020 and                      specified terms—that are ‘‘consistent,’’
                                              meant that they were retroactive to                      published on May 21, 2020); 85 FR                      to ‘‘the maximum extent practicable,’’
                                              March 27, 2020. Section 2 of the                         31357 (posted on May 20, 2020 and                      with comparable terms in paragraph 36
                                              Flexibility Act provided that the                        published on May 26, 2020); 85 FR                      of section 7(a) of the Small Business Act
                                              amendment relating to the extension of                   35550 (posted on June 5, 2020 and                      (15 U.S.C. 636(a)). See section
                                              the maturity date for PPP loans became                   published on June 11, 2020); 85 FR                     1109(d)(2).
                                              effective on the date of enactment (June                 36308 (posted on June 11, 2020 and
                                                                                                       published on June 16, 2020); 85 FR                        In this rulemaking, Treasury is
                                              5, 2020). Under the Flexibility Act, the
                                              extension of the maturity date for PPP                   36717 (posted on June 12, 2020 and                     addressing the needs of new PPP
                                              loans was applicable to PPP loans made                   published on June 18, 2020); 85 FR                     borrowers by allowing all new
                                              on or after that date, and lenders and                   36997 (posted on June 17, 2020 and                     borrowers to use 2019 or 2020 for
                                              borrowers were able to mutually agree                    published on June 19, 2020); 85 FR                     purposes of calculating their maximum
                                              to modify PPP loans made before such                     38301 (posted on June 24, 2020 and                     loan amount. Section 1102 of the
                                              date to reflect the longer maturity. On                  published on June 26, 2020); and 85 FR                 CARES Act states that borrowers are to
                                              July 4, 2020, Public Law 116–147                         39066 (posted on June 25, 2020 and                     calculate their maximum loan amount
                                              extended the authority for SBA to                        published on June 30, 2020). This rule                 by using ‘‘payroll costs incurred during
                                              guarantee PPP loans to August 8, 2020.                   should be interpreted consistently with                the 1-year period before the date on
                                              On December 27, 2020, the Economic                       the sets of Frequently Asked Questions                 which the loan is made . . . .’’ For PPP
                                              Aid to Hard-Hit Small Businesses,                        (FAQs) regarding the PPP that are                      loans made in 2020, most borrowers
                                              Nonprofits, and Venues Act (Economic                     posted on SBA’s and Treasury’s                         used 2019. The Economic Aid Act did
                                              Aid Act) (Pub. L. 116–260) was enacted,                  websites and the interim final rules                   not change this language for borrowers
                                              which reauthorizes lending under the                     posted separately providing guidance on                that are not farmers and ranchers and
                                              PPP through March 31, 2021, and                          second draw PPP loans and the                          would require most new PPP borrowers
                                              among other things, modifies provisions                  consolidated guidance on loan                          who obtain a loan in 2021 to use 2020
                                              related to making PPP loans and                          forgiveness and the loan review process;               as their base period. Using authority
                                              forgiveness of PPP loans, and authorizes                 however, the Economic Aid Act                          granted by section 1109 of the CARES
                                              second draw PPP loans under new                          overrides any conflicting guidance in                  Act, this rulemaking allows new
                                              section 7(a)(37) of the Small Business                   the FAQs, and SBA will be revising the                 borrowers to choose 2019 or 2020 as the
                                              Act for PPP borrowers that previously                    FAQs to fully conform to the Economic                  base period, thereby ensuring that they
                                              received a PPP loan (rules for second                    Aid Act as quickly as feasible.
                                                                                                          Most of this document restates                      are able to obtain funding on terms
                                              draw loans will be published                                                                                    commensurate with existing PPP
                                              separately). The Economic Aid Act also                   existing regulatory provisions to provide
                                                                                                       lenders and new PPP borrowers a single                 borrowers. Separately, section 313 of the
                                              redesignates section 1106 of the CARES                                                                          Economic Aid Act states that farmers
                                              Act as section 7A and transfers that                     regulation to consult on borrower
                                                                                                       eligibility, lender eligibility, and loan              and ranchers are to calculate their
                                              section to the Small Business Act, to                                                                           maximum loan amount using 2019 as
                                              appear after section 7 of the Small                      application and origination
                                                                                                       requirements, as well as general rules on              their base period. This rulemaking
                                              Business Act.1                                                                                                  allows farmers and ranchers to elect
                                                                                                       increases and loan forgiveness for PPP
                                                 In addition to incorporating the                                                                             either 2019 or 2020 as their base period,
                                                                                                       loans. To enhance the readability of this
                                              changes to PPP requirements made by                                                                             in order to ensure that they can obtain
                                                                                                       document, SBA has not reproduced the
                                              the Economic Aid Act, this interim final                                                                        funding on terms commensurate with
                                                                                                       policy and legal justifications for
                                              rule consolidates and restates the                                                                              those available to other new PPP
                                                                                                       existing regulatory provisions restated
                                              following interim final rules: 85 FR                                                                            borrowers.
                                                                                                       here, except to the extent that those
                                              20811 (posted on April 2, 2020 and
                                                                                                       justifications may be helpful to the                      As required by section 1109(d)(2)(B)
                                              published in the Federal Register on
                                                                                                       borrower or lender. However, those                     of the CARES Act, Treasury has
                                              April 15, 2020); 85 FR 20817 (posted on
                                                                                                       justifications from the original interim               determined that providing new PPP
                                              April 3, 2020 and published on April                     final rules are incorporated by reference
                                              15, 2020); 85 FR 21747 (posted on April                                                                         borrowers with flexibility in choosing a
                                                                                                       here.                                                  base period is consistent, to the
                                              14, 2020 and published on April 20,                         In addition, section 1109(b) of the
                                              2020); 85 FR 23450 (posted on April 24,                                                                         ‘‘maximum extent practicable,’’ with the
                                                                                                       CARES Act authorizes Treasury to
                                              2020 and published on April 28, 2020);                                                                          terms applicable to existing PPP
                                                                                                       establish criteria for certain other
                                              85 FR 23917 (posted on April 27, 2020                    lenders to participate in the PPP. The                 borrowers. This enhanced flexibility
                                              and published on April 30, 2020); 85 FR                  SBA is required to administer the                      will help ensure that new PPP
                                              26321 (posted on April 28, 2020 and                      program that Treasury establishes under                borrowers are treated even-handedly
                                              published on May 4, 2020); 85 FR 26324                   section 1109 of the Act, with guidance                 and do not see their permissible loan
                                              (posted on April 30, 2020 and published                  from Treasury. The CARES Act                           amounts reduced due to financial
                                              on May 4, 2020); 85 FR 27827 (posted                     authorizes Treasury to issue regulations               distress experienced in 2020. Other than
                                              on May 5, 2020 and published on May                      and guidance to implement section                      these adjustments, the terms and
                                              8, 2020); 85 FR 29845 (posted on May                     1109, including regulations that                       requirements applicable to PPP loans
                                              8, 2020 and published on May 19,                         establish ‘‘terms and conditions’’ for                 under this rule are identical to the terms




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                                              2020); 85 FR 29842 (posted on May 13,                    PPP loans. See section 1109(d)(2). The                 and requirements applicable to all other
                                              2020 and published on May 19, 2020);                     terms and conditions established by                    PPP loans. As a result, a PPP borrower
                                                                                                       Treasury under section 1109 are not                    that elects to use the flexibility in
                                                1 Because section 1106 of the CARES Act is now
                                                                                                       required to be identical to those                      selecting a base period under this
                                              codified as section 7A of the Small Business Act,                                                               interim final rule may follow the same
                                              any reference to section 1106 of the CARES Act in
                                                                                                       provided elsewhere. Rather, the CARES
                                              the rules that are being restated herein will refer to   Act allows Treasury to set terms and                   processes and procedures applicable to
                                              section 7A.                                              conditions pertaining to certain                       other PPP loans.


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                                              3694              Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations

                                              II. Comments and Immediate Effective                    provisions of the PPP related to                         8. Are lenders required to use a promissory
                                              Date                                                    eligibility of applicants for PPP loans,                    note provided by SBA or may they use
                                                                                                      which lenders are authorized to make                        their own?
                                                 This interim final rule is being issued                                                                       9. Are lenders required to use a separate
                                              without advance notice and public                       PPP loans, the process for making PPP                       SBA Authorization document to issue
                                              comment because section 303 of the                      loans, loan increases, and loan                             PPP loans?
                                              Economic Aid Act authorizes SBA to                      forgiveness, as revised by the Economic                  10. By when must a lender electronically
                                              issue regulations to implement the                      Aid Act. Additional rules related to                        submit an SBA Form 1502 indicating
                                              Economic Aid Act without regard to                      second draw PPP loans will be                               that PPP loan funds have been
                                                                                                      published separately. While this interim                    disbursed?
                                              notice requirements. In addition, this                                                                           11. How do lenders report disbursements
                                              rule is being issued to allow for                       final rule fully implements the
                                                                                                                                                                  on PPP loans that are approved for loan
                                              immediate implementation of this                        Economic Aid Act’s changes to loan                          increases due to the Economic Aid Act?
                                              program. The intent of both the CARES                   forgiveness, SBA also intends to issue a               D. What do both borrowers and lenders need
                                              Act and the Economic Aid Act is that                    consolidated rule governing all aspects                     to know and do?
                                              SBA provides relief to America’s small                  of loan forgiveness and loan review as                   1. What are the loan terms and conditions?
                                              businesses expeditiously. Congress                      well to provide a single reference point                 2. Do lenders have to apply the ‘‘credit
                                              reauthorized PPP because of the current                 for lenders and borrowers.                                  elsewhere test’’?
                                              economic conditions affecting small                                                                              3. Are there any fee waivers?
                                                                                                      Table of Contents                                        4. Who pays the fee to an agent who
                                              businesses and intended for the loans to                                                                            provides assistance in connection with a
                                              be made quickly. The last day to apply                  A. General
                                                                                                                                                                  PPP loan?
                                              for and receive a PPP loan is March 31,                 B. What do borrowers need to know and do?
                                                                                                                                                               5. Can a borrower take multiple draws from
                                              2021. Given the short duration of this                    1. What businesses, organizations, and
                                                                                                                                                                  a PPP loan and thereby delay the start of
                                                                                                           individuals are eligible?
                                              program, and the urgent need to issue                                                                               the covered period?
                                                                                                        2. What businesses, organizations, and                 6. If a partnership received a PPP loan that
                                              loans quickly, the Administrator in                          individuals are ineligible?
                                              consultation with the Secretary has                                                                                 did not include any compensation for its
                                                                                                        3. Affiliation Rules Generally                            partners, can the loan amount be
                                              determined that it is impractical and not                 4. I Have Determined That I Am Eligible.                  increased to include partner
                                              in the public interest to provide a 30-                      How much can I borrow?                                 compensation?
                                              day delayed effective date. An                            5. What is the interest rate on a PPP loan?            7. If a seasonal employer received a PPP
                                              immediate effective date will give small                  6. What will be the maturity date on a PPP                loan before December 27, 2020, can the
                                              businesses the maximum amount of                             loan?                                                  loan amount be increased based on a
                                              time to apply for loans and lenders the                   7. Can I apply for more than one First Draw               revised calculation of the maximum loan
                                              maximum amount of time to process                            PPP Loan?                                              amount?
                                              applications before the program ends.                     8. Can I use e-signatures or e-consents if a           8. Which other PPP borrowers can reapply
                                              This good cause justification also                           borrower has multiple owners?                          or request an increase in their PPP loan
                                              supports waiver of the 60-day delayed                     9. When will I have to begin paying                       amount?
                                                                                                           principal and interest on my PPP loan?              9. If a borrower’s PPP loan has already
                                              effective date for major rules under the                  10. What forms do I need and how do I                     been fully disbursed, can the lender
                                              Congressional Review Act at 5 U.S.C.                         submit an application for a PPP loan?                  make an additional disbursement for the
                                              808(2). Although this interim final rule                  11. How can PPP loans be used?                            increased loan proceeds?
                                              is effective immediately, comments are                    12. What certifications need to be made?               10. Are recipients of PPP loans entitled to
                                              solicited from interested members of the                  13. Limited Safe Harbor With Respect to                   exemptions on the grounds provided in
                                              public on all aspects of the interim final                   Certification Concerning Need for PPP                  Federal nondiscrimination laws for sex-
                                              rule, including section III. These                           Loan Request                                           specific admissions practices, sex-
                                              comments must be submitted on or                          14. Can my PPP loan be forgiven in whole                  specific domestic violence shelters,
                                              before February 16, 2021. The SBA will                       or in part?                                            coreligionist housing, or Indian tribal
                                                                                                        15. Do independent contractors count as                   preferences in connection with adoption
                                              consider these comments and the need                                                                                or foster care practices?
                                              for making any revisions as a result of                      employees for purposes of PPP loan
                                                                                                           forgiveness?
                                              these comments.                                                                                                A. General
                                                                                                        16. For loans made prior to December 27,
                                              III. Paycheck Protection Program as                          2020, what additional documentation                  SBA is authorized to guarantee loans
                                              Amended by Economic Aid Act                                  must a borrower submit when the                   under the PPP through March 31, 2021.
                                                                                                           President of the United States, Vice              Congress has authorized a total program
                                              Overview                                                     President of the United States, the head          level of $806,450,000,000 to provide
                                                 The CARES Act was enacted to                              of an Executive department, or a Member           guaranteed loans under this temporary
                                              provide immediate assistance to                              of Congress, or the spouse of any of the          7(a) program under sections 7(a)(36)
                                                                                                           preceding, directly or indirectly holds a
                                              individuals, families, and businesses                        controlling interest in the borrower?
                                                                                                                                                             (PPP loans or First Draw PPP Loans) and
                                              affected by the COVID–19 emergency.                     C. What do lenders need to know and do?                7(a)(37) (Second Draw PPP Loans) of the
                                              Among the provisions contained in the                     1. Who is eligible to make PPP loans?                Small Business Act, a portion of which
                                              CARES Act are provisions authorizing                      2. Do lenders have to register in SAM.gov            is available for new First Draw and
                                              SBA to temporarily guarantee loans                           to make PPP loans?                                Second Draw PPP Loans. Lenders have
                                              under a new 7(a) loan program titled the                  3. What do lenders have to do in terms of            delegated authority to make PPP loans.
                                              ‘‘Paycheck Protection Program.’’ Loans                       loan underwriting?                                SBA will allow lenders to rely on
                                              guaranteed under the Paycheck                             4. Can lenders rely on borrower                      certifications of the borrower in order to
                                              Protection Program (PPP) will be 100                         documentation for loan forgiveness?               determine eligibility of the borrower




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                                              percent guaranteed by SBA, and the full                   5. What fees will lenders be paid?                   and use of loan proceeds and to rely on
                                                                                                        6. Can PPP loans be sold into the
                                              principal amount of the loans may                            secondary market?
                                                                                                                                                             specified documents provided by the
                                              qualify for loan forgiveness. The                         7. Do the requirements for loan pledges              borrower to determine qualifying loan
                                              Economic Aid Act reauthorizes lending                        under 13 CFR 120.434 apply to PPP                 amount and eligibility for loan
                                              under the PPP through March 31, 2021,                        loans pledged for borrowings from a               forgiveness. Lenders must comply with
                                              and revises certain PPP requirements.                        Federal Reserve Bank (FRB) or advances            the applicable lender obligations set
                                              The following outlines the key                               by a Federal Home Loan Bank (FHLB)?               forth in this interim final rule, but will


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                                                                 Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations                                                      3695

                                              be held harmless for borrowers’ failure                  eligible destination marketing                            with its domestic and foreign affiliates,
                                              to comply with program criteria and                      organization,6 that employs no more                       does not meet the 500-employee, 300-
                                              will not be subject to any enforcement                   than 300 employees;                                       employee,9 or other applicable PPP size
                                              action or penalty relating to loan                          • a news organization that is majority                 standard is therefore ineligible for a PPP
                                              origination or forgiveness of the PPP                    owned or controlled by a NAICS code                       loan. Under no circumstances may PPP
                                              loan if the lender acts in good faith                    511110 or 5151 business or a nonprofit                    funds be used to support non-U.S.
                                              relating to the origination or forgiveness               public broadcasting entity with a trade                   workers or operations.
                                              of the PPP loan and satisfies all other                  or business under NAICS 511110 or                            c. I have income from self-
                                              applicable Federal, State, local, and                    5151, that employs no more than 500                       employment and file a Form 1040,
                                              other statutory or regulatory                            employees (or, if applicable, the size                    Schedule C. Am I eligible for a PPP
                                              requirements (as provided in section                     standard in number of employees                           Loan? 10
                                              7A(h) of the Small Business Act, as                      established by SBA in 13 CFR 121.201                         You are eligible for a PPP loan if: (i)
                                              amended). Remedies for violations of                     for your industry) per location; or                       You were in operation on February 15,
                                              PPP requirements or fraud are                               • another type of entity specifically                  2020; (ii) you are an individual with
                                              separately addressed in this interim                     provided for by PPP rules (as described                   self-employment income (such as an
                                              final rule. The program requirements of                  below); and                                               independent contractor or a sole
                                              the PPP identified in this rule                             ii. you were in operation on February                  proprietor); (iii) your principal place of
                                              temporarily supersede any conflicting                    15, 2020, and either had employees for                    residence is in the United States; and
                                              Loan Program Requirement (as defined                     whom you paid salaries and payroll                        (iv) you filed or will file a Form 1040
                                              in 13 CFR 120.10).                                       taxes or paid independent contractors,                    Schedule C for 2019 or meet the
                                                                                                       as reported on a Form 1099–MISC or                        requirements below. However, if you are
                                              B. What do borrowers need to know                        you were an eligible self-employed                        a partner in a partnership, you may not
                                              and do?                                                  individual, independent contractor, or                    submit a separate PPP loan application
                                              1. What businesses, organizations, and                   sole proprietorship with no employees.                    for yourself as a self-employed
                                              individuals are eligible?                                   You must submit documentation                          individual. Instead, the self-
                                                                                                       sufficient to establish eligibility and to                employment income of general active
                                                 a. Am I eligible? 2 3                                 demonstrate the qualifying payroll                        partners may be reported as a payroll
                                                 You are eligible for a PPP loan if:                   amount, which may include, as                             cost, up to $100,000 on an annualized
                                                 i. You, together with any affiliates (if              applicable, payroll records, payroll tax                  basis, as prorated for the period during
                                              applicable),4 are:                                       filings, Form 1099–MISC, Schedule C or
                                                 • A small business concern under the                                                                            which the payments are made or the
                                                                                                       F, income and expenses from a sole                        obligation to make the payments is
                                              applicable revenue-based size standard
                                                                                                       proprietorship, or bank records.                          incurred on a PPP loan application filed
                                              established by SBA in 13 CFR 121.201                        b. Are employees of foreign affiliates
                                              for your industry or under the SBA                                                                                 by or on behalf of the partnership.
                                                                                                       included for purposes of determining                      Partnerships are eligible for PPP loans
                                              alternative size standard; 5                             whether a PPP borrower has more than
                                                 • an independent contractor, eligible                                                                           under the CARES Act, as amended by
                                                                                                       500 employees (or 300 employees, if                       the Economic Aid Act, and the
                                              self-employed individual, or sole
                                                                                                       applicable)? 7                                            Administrator has determined, in
                                              proprietor;                                                 Yes. SBA’s affiliation regulations
                                                 • a business concern, a tax-exempt                                                                              consultation with the Secretary of the
                                                                                                       provide that to determine a concern’s
                                              nonprofit organization described in
                                                                                                       size, employees of the concern ‘‘and all                  franchise identifier code by the Administration; (3)
                                              section 501(c)(3) of the Internal Revenue
                                                                                                       of its domestic and foreign affiliates’’ are              any business concern that receives financial
                                              Code (IRC), a tax-exempt veterans                                                                                  assistance from a company licensed under section
                                                                                                       included. 13 CFR 121.301(f). Therefore,
                                              organization described in section                                                                                  301 of the Small Business Investment Act of 1958
                                                                                                       to calculate the number of employees of                   (15 U.S.C. 681); and (4)(a) any business concern
                                              501(c)(19) of the IRC, a Tribal business
                                                                                                       an entity for purposes of determining                     (including any station which broadcasts pursuant to
                                              concern described in section 31(b)(2)(C)
                                                                                                       eligibility for the PPP, an entity must                   a license granted by the Federal Communications
                                              of the Small Business Act, and you                                                                                 Commission under title III of the Communications
                                                                                                       include all employees of its domestic
                                              employ no more than the greater of 500                                                                             Act of 1934 (47 U.S.C. 301 et seq.) without regard
                                                                                                       and foreign affiliates, except in those                   for whether such a station is a concern as defined
                                              employees or, if applicable, the size
                                                                                                       limited circumstances where the                           in section 121.105 of title 13, Code of Federal
                                              standard in number of employees                                                                                    Regulations, or any successor thereto) that employs
                                                                                                       affiliation rules expressly do not apply
                                              established by SBA in 13 CFR 121.201;                                                                              not more than 500 employees, or the size standard
                                                 • a housing cooperative, an eligible                  to the entity.8 Any entity that, together                 established by the Administrator for the North
                                              section 501(c)(6) organization, or an                                                                              American Industry Classification System code
                                                                                                         6 See subsections 1.j., 1.k., and 1.m. for additional
                                                                                                                                                                 applicable to the business concern, per physical
                                                                                                       information on the eligibility of housing                 location of such business concern and is majority
                                                 2 See interim final rule on Second Draw PPP
                                                                                                       cooperatives, section 501(c)(6) organizations, and        owned or controlled by a business concern that is
                                              Loans for eligibility criteria for Second Draw PPP       destination marketing organizations. The applicable       assigned a North American Industry Classification
                                              Loans, which is being published separately.              size standard for these entities is not more than 300     System code beginning with 511110 or 5151; or (b)
                                                 3 This subsection was originally published at 85      employees.                                                any nonprofit organization that is assigned a North
                                              FR 20811, subsection III.2.a. (April 15, 2020), as         7 This subsection was originally published at 85        American Industry Classification System code
                                              amended by 85 FR 36308 (June 16, 2020), 85 FR            FR 30835, section III.1. (May 21, 2020) and has been      beginning with 5151. SBA also applies affiliation
                                              36717 (June 18, 2020), and 85 FR 38301 (June 26,         modified for readability. Housing cooperatives,           exceptions to certain categories of entities. 13 CFR
                                              2020), and has been modified to reflect subsequent       section 501(c)(6) organizations, and destination          121.103(b).
                                              rules or guidance and the Economic Aid Act.              marketing organizations, added by the Economic               9 For housing cooperatives, section 501(c)(6)
                                                 4 See section 3 regarding the applicability of        Aid Act, must have no more than 300 employees             organizations, and destination marketing
                                              affiliation rules at 13 CFR 121.103 and 121.301 to       to be eligible for PPP loans.                             organizations, the applicable size standard is not




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                                              PPP loans.                                                 8 Paragraph 7(a)(36)(D)(iv) of the Small Business       more than 300 employees. See subsections 1.j. and
                                                 5 Under SBA’s alternative size standard, a            Act (15 U.S.C. 636(a)(36)(D)(iv)), as added by the        1.m. For the applicable size standard for entities
                                              business concern may qualify as a small business         CARES Act and amended by the Economic Aid Act,            eligible to apply for Second Draw PPP Loans, see
                                              concern if it, together with any affiliates: (1) Has a   waives SBA’s affiliation rules for (1) any business       the interim final rule on Second Draw PPP Loans
                                              maximum tangible net worth of not more than $15          concern with not more than 500 employees that, as         that is being published separately.
                                              million; and (2) the average net income after            of the date on which the loan is disbursed, is               10 This subsection was originally published at 85

                                              Federal income taxes (excluding any carry-over           assigned a North American Industry Classification         FR 21747, subsection III.1.a. (April 20, 2020) and
                                              losses) for the two full fiscal years before the date    System code beginning with 72; (2) any business           has been modified to reflect subsequent interim
                                              of application is not more than $5 million.              concern operating as a franchise that is assigned a       final rules or guidance and the Economic Aid Act.



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                                              3696              Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations

                                              Treasury (Secretary), that limiting a                   process as any similarly situated                      loan if it: (1) Is majority owned or
                                              partnership and its partners (and an LLC                customer or account holder of the                      controlled by a business concern that is
                                              filing taxes as a partnership) to one PPP               lender. Favoritism by the lender in                    assigned a NAICS code beginning with
                                              loan is necessary to help ensure that as                processing time or prioritization of the               511110 or 5151 or, with respect to a
                                              many eligible borrowers as possible                     director’s or equity holder’s PPP                      public broadcasting entity (as defined in
                                              obtain PPP loans before the statutory                   application is prohibited. Lenders                     section 397(11) of the Communications
                                              deadline of March 31, 2021. This                        should comply with all other applicable                Act of 1934 (47 U.S.C. 397(11))), has a
                                              limitation will allow lenders to more                   state and federal regulations concerning               trade or business that falls under such
                                              quickly process applications and lower                  loans to associates of the lender.                     a code; and (2) makes a good faith
                                              the burdens of applying for                             Lenders should also consult their own                  certification that proceeds of the loan
                                              partnerships/partners. The                              internal policies concerning lending to                will be used to support expenses at the
                                              Administrator has further determined                    individuals or entities associated with                component of the organization that
                                              that permitting partners to apply as self-              the lender.                                            produces or distributes locally focused
                                              employed individuals would create                         The foregoing paragraph does not                     or emergency information. See section 3
                                              unnecessary confusion regarding which                   apply to a director or owner who is also               for the applicability of SBA’s affiliation
                                              entity, the partner or the partnership,                 an officer or key employee of the PPP                  rules to news organizations.
                                              applies for partner and LLC member                      Lender. Officers and key employees of                     g. Industry-Specific Eligibility Issues
                                              income, and would generate loan                         a PPP Lender may obtain a PPP Loan                        i. Is a hospital owned by
                                              proceeds use coordination and                           from a different lender, but not from the              governmental entities eligible for a PPP
                                              allocation issues. Rent, mortgage                       PPP Lender with which they are                         loan? 15
                                              interest, utilities, other debt service,                associated. SBA also reminds Lenders                      Notwithstanding 13 CFR 120.110(j), a
                                              operations expenditures, property                       that the ‘‘Authorized Lender Official’’                hospital that is otherwise eligible to
                                              damage costs, supplier costs, and                       for each PPP Loan is subject to the                    receive a PPP loan as a business concern
                                              worker protection expenditures are                      limitations described in the PPP Lender                or nonprofit organization (described in
                                              generally incurred at the partnership                   Application Form (SBA Form 2484),                      section 501(c)(3) of the Internal Revenue
                                              level, not partner level, so it is most                 which states in relevant part: ‘‘Neither               Code of 1986 and exempt from taxation
                                              natural to provide the funds for these                  the undersigned Authorized Lender                      under section 501(a) of such Code) shall
                                              expenses to the partnership, not                        Official, nor such individual’s spouse or              not be rendered ineligible for a PPP loan
                                              individual partners. In addition, you                   children, has a financial interest in the              due to ownership by a state or local
                                              should be aware that participation in                   Applicant [Borrower].’’                                government if the hospital receives less
                                              the PPP may affect your eligibility for                   e. If a seasonal business was dormant                than 50% of its funding from state or
                                              state-administered unemployment                         or not fully operating as of February 15,              local government sources, exclusive of
                                              compensation or unemployment                            2020, is it still eligible? 13                         Medicaid.
                                              assistance programs, including the                        Yes, in evaluating eligibility, a                       ii. Are businesses that receive revenue
                                              programs authorized by Title II, Subtitle               seasonal business will be considered to                from legal gaming eligible for a PPP
                                              A of the CARES Act, or CARES Act                        have been in operation as of February                  Loan? 16
                                              Employee Retention Credits. On June                     15, 2020, if the business was in                          A business that is otherwise eligible
                                              26, 2020, SBA issued additional                         operation for any 12-week period                       for a PPP Loan is not rendered ineligible
                                              guidance for those individuals with self-               between February 15, 2019 and                          due to its receipt of legal gaming
                                              employment income who: (i) Were not                     February 15, 2020. This approach aligns                revenues, and 13 CFR 120.110(g) is
                                              in operation in 2019 but who were in                    the eligibility criteria for seasonal                  inapplicable to PPP loans. Businesses
                                              operation on February 15, 2020, and (ii)                businesses being in operation with the                 that received illegal gaming revenue
                                              filed a Form 1040 Schedule C for 2020.                  time period for calculation of a seasonal              remain categorically ineligible.
                                              See ‘‘How To Calculate Maximum Loan                     employer’s maximum loan amount from                       iii. Are electric cooperatives that are
                                              Amounts—By Business Type,’’ Question                    section 336 of the Economic Aid Act                    exempt from Federal income taxation
                                              10 posted on SBA’s website.11                           and makes PPP loans available to                       under section 501(c)(12) of the Internal
                                                 d. Are eligible businesses owned by                                                                         Revenue Code eligible for a PPP loan? 17
                                                                                                      seasonal businesses that operate outside
                                              directors or shareholders of a PPP                                                                                Yes. An electric cooperative that is
                                                                                                      of the original, more limited time frame.
                                              lender permitted to apply for a PPP loan                                                                       exempt from Federal income taxation
                                              through the lender with which they are                    f. How does the 500 employee limit
                                                                                                      apply to news organizations with more                  under section 501(c)(12) of the Internal
                                              associated? 12                                                                                                 Revenue Code will be considered to be
                                                 SBA regulations (including 13 CFR                    than one physical location? 14
                                                                                                        A business concern, or any station                   ‘‘a business entity organized for profit’’
                                              120.110 and 120.140) shall not apply to                                                                        for purposes of 13 CFR 121.105(a)(1). As
                                              prohibit an otherwise eligible business                 which broadcasts pursuant to a license
                                                                                                      granted by the Federal Communications                  a result, such entities are eligible PPP
                                              owned (in whole or part) by an outside                                                                         borrowers, as long as other eligibility
                                              director or holder of a less than 30                    Commission under title III of the
                                                                                                      Communications Act of 1934 (47 U.S.C.                  requirements are met. To be eligible, an
                                              percent equity interest in a PPP lender                                                                        electric cooperative must satisfy the
                                              from obtaining a PPP loan from the PPP                  301 et seq.), with more than one
                                                                                                      physical location that employs not more                employee-based size standard
                                              lender on whose board the director                                                                             established in the CARES Act, SBA’s
                                              serves or in which the equity owner                     than 500 employees (or the size
                                                                                                      standard established by the                            employee-based size standard
                                              holds an interest, provided that the
                                              eligible business owned by the director                 Administrator for the NAICS code




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                                                                                                                                                               15 This subsection was originally published at 85
                                              or equity holder follows the same                       applicable to the business concern) per                FR 23450, subsection III.2.c. (April 28, 2020) and
                                                                                                      physical location, is eligible for a PPP               has been modified for readability.
                                                11 https://www.sba.gov/sites/default/files/2020-                                                               16 This subsection was originally published at 85
                                                                                                        13 This subsection was originally published at 85    FR 23450, subsection III.2.d. (April 28, 2020) and
                                              12/How-to-Calculate-Loan-Amounts-508_6-26-
                                              20.pdf (April 20, 2020).                                FR 23917, subsection III.4. (April 30, 2020) and has   has been modified for readability.
                                                12 This subsection was originally published at 85     been modified to reflect the Economic Aid Act.           17 This subsection was originally published at 85

                                              FR 21747, subsection III.2.a. (April 20, 2020) and        14 This subsection has been added to conform to      FR 29847, subsection III.1. (May 19, 2020) and has
                                              has been modified for readability.                      section 317 of the Economic Aid Act.                   been modified for readability.



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                                                                 Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations                                                    3697

                                              corresponding to its primary industry, if                  Yes. A public broadcasting entity (as                 destination marketing organization does
                                              higher, or both tests in SBA’s                          defined in section 397(11) of the                        not receive more than 15 percent of its
                                              ‘‘alternative size standard.’’ 18                       Communications Act of 1934 (47 U.S.C.                    receipts from lobbying activities; (2) the
                                                 iv. Are telephone cooperatives that                  397(11)) that is a nonprofit organization                lobbying activities of the destination
                                              are exempt from federal income                          or any organization otherwise subject to                 marketing organization do not comprise
                                              taxation under section 501(c)(12) of the                section 511(a)(2)(B) of the Internal                     more than 15 percent of the total
                                              Internal Revenue Code eligible for a PPP                Revenue Code of 1986, and employs no                     activities of the organization; (3) the cost
                                              loan? 19                                                more than 500 employees (or, if                          of the lobbying activities of the
                                                 Yes. A telephone cooperative that is                 applicable, the size standard in number                  destination marketing organization did
                                              exempt from federal income taxation                     of employees established by SBA in 13                    not exceed $1,000,000 during the most
                                              under section 501(c)(12) of the Internal                CFR 121.201 for the entity’s industry)                   recent tax year of the destination
                                              Revenue Code will be considered to be                   per location is eligible for a PPP loan if               marketing organization that ended prior
                                              ‘‘a business entity organized for profit’’              the organization has a trade or business                 to February 15, 2020; (4) the destination
                                              for purposes of 13 CFR 121.105(a)(1). As                that is assigned a NAICS code beginning                  marketing organization employs not
                                              a result, such entities are eligible PPP                with 511110 or 5151, and makes a good                    more than 300 employees; and (5) the
                                              borrowers, as long as other eligibility                 faith certification that proceeds of the                 destination marketing organization: (a)
                                              requirements are met. To be eligible, a                 loan will be used to support expenses at                 Is described in section 501(c) of the
                                              telephone cooperative must satisfy the                  the component of the organization that                   Internal Revenue Code and is exempt
                                              employee-based size standard                            produces or distributes locally focused                  from taxation under section 501(a) of
                                              established in the CARES Act, SBA’s                     or emergency information.23 See                          such Code; or (b) is a quasi-
                                              employee-based size standard                            subsection B.1.f. for information on how                 governmental entity or is a political
                                              corresponding to its primary industry, if               the 500 employee limit applies to news                   subdivision of a State or local
                                              higher, or both tests in SBA’s                          organizations with more than one                         government, including any
                                              ‘‘alternative size standard.’’ 20                       physical location. See section 3 for the                 instrumentality of those entities.26
                                                 v. Are housing cooperatives as                       applicability of SBA’s affiliation rules to                 viii. Are 501(c)(6) organizations
                                              defined in section 216(b) of the Internal               news organizations.                                      eligible for PPP loans? 27
                                              Revenue Code eligible for PPP loans? 21                    vii. Are destination marketing                           Yes. Any organization that is
                                                 Yes. Housing cooperatives (as defined                organizations eligible for PPP loans? 24                 described in section 501(c)(6) of the
                                              in section 216(b) of the Internal Revenue                  Yes. Under the Economic Aid Act,                      Internal Revenue Code and that is
                                              Code of 1986) that employ not more                      any destination marketing                                exempt from taxation under section
                                              than 300 employees are eligible to apply                organization 25 is eligible to receive a                 501(a) of such Code (excluding
                                              for PPP loans as long as other eligibility              PPP loan as long as other eligibility                    professional sports leagues and
                                              requirements are met. In addition, the                  requirements are met and if: (1) The                     organizations with the purpose of
                                              provisions applicable to affiliation,
                                                                                                                                                               promoting or participating in a political
                                              described in section 3, apply to housing                   23 This subsection provides that an eligible
                                                                                                                                                               campaign or other activity) shall be
                                              cooperatives in the same manner as                      nonprofit news organization under section 317 of
                                                                                                      the Economic Aid Act must have no more than 500          eligible to receive a PPP loan as long as
                                              with respect to a small business
                                                                                                      employees. (For those nonprofit news organizations       other eligibility requirements are met
                                              concern.                                                with more than one physical location, they must
                                                 vi. Are nonprofit and tax-exempt                                                                              and if: (1) The organization does not
                                                                                                      have no more than 500 employees per location.)
                                              news organizations eligible for PPP                     This will make PPP loans available to nonprofit
                                                                                                                                                               receive more than 15 percent of its
                                              loans? 22                                               news organizations, regardless of whether the            receipts from lobbying activities; (2) the
                                                                                                      organization would be a business concern under           lobbying activities of the organization
                                                                                                      SBA regulations, if the nonprofit news organization      do not comprise more than 15 percent
                                                18 Under the alternative size standard, a business
                                                                                                      satisfies the same general size standard applicable
                                              concern, including an electric cooperative, can         under the PPP rules to other borrowers that are          of the total activities of the organization;
                                              qualify for the PPP as a small business concern if,     nonprofit or tax-exempt organizations. The               (3) the cost of the lobbying activities of
                                              as of March 27, 2020: (1) The maximum tangible net      Administrator, in consultation with the Secretary,       the organization did not exceed
                                              worth of the business was not more than $15             has determined this requirement appropriately
                                              million; and (2) the average net income after                                                                    $1,000,000 during the most recent tax
                                                                                                      implements section 317 of the Economic Aid Act
                                              Federal income taxes (excluding any carry-over          by making PPP loans available to nonprofit news          year of the organization that ended prior
                                              losses) of the business for the two full fiscal years   organizations on the same terms as other nonprofit       to February 15, 2020; and (4) the
                                              before the date of the application is not more than     organizations that have been made eligible for PPP       organization employs not more than 300
                                              $5 million. For an electric cooperative that does not   loans.
                                              have net income, the cooperative’s savings                                                                       employees.
                                                                                                         24 This subsection has been added to conform to
                                              distributed to its owner-members will be
                                              considered its net income.
                                                                                                      section 318 of the Economic Aid Act.                     2. What businesses, organizations, and
                                                                                                         25 Section 318 of the Economic Aid Act added the
                                                19 This subsection was originally published at 85                                                              individuals are ineligible?
                                                                                                      following definition to paragraph 7(a)(36)(A) of the
                                              FR 35550, subsection III.1. (June 11, 2020) and has     Small Business Act (15 U.S.C. 636(a)(36)(A)): ‘‘(xv)        a. Could I be ineligible even if I meet
                                              been modified for readability.
                                                20 Under the alternative size standard, a business
                                                                                                      the term ’destination marketing organization’ means      the eligibility requirements in section
                                                                                                      a nonprofit entity that is—(I) an organization           1? 28
                                              concern, including a telephone cooperative, can         described in section 501(c) of the Internal Revenue
                                              qualify for the PPP as a small business concern if,     Code of 1986 and exempt from tax under section
                                              as of March 27, 2020: (1) The maximum tangible net                                                                  26 A destination marketing organization that is a
                                                                                                      501(a) of such Code; or (II) a State, or a political
                                              worth of the business was not more than $15             subdivision of a State (including any                    quasi-governmental entity or is a political
                                              million; and (2) the average net income after           instrumentality of such entities)—(aa) engaged in        subdivision of a State or local government,
                                              Federal income taxes (excluding any carry-over          marketing and promoting communities and                  including any instrumentality of those entities, is
                                              losses) of the business for the two full fiscal years   facilities to businesses and leisure travelers through   eligible for a PPP loan notwithstanding the SBA




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                                              before the date of the application is not more than     a range of activities, including—(AA) assisting with     regulation at 13 CFR 120.110(j), which states that
                                              $5 million. For a telephone cooperative that does       the location of meeting and convention sites; (BB)       government-owned entities (except for businesses
                                              not have net income, the telephone cooperative’s        providing travel information on area attractions,        owned or controlled by a Native American tribe) are
                                              capital credits distributed to its owner-members        lodging accommodations, and restaurants; (CC)            not eligible for SBA financial assistance.
                                              will be considered its net income.                      providing maps; and (DD) organizing group tours of          27 This subsection has been added to conform to
                                                21 This subsection has been added to conform to                                                                section 318 of the Economic Aid Act.
                                                                                                      local historical, recreational, and cultural
                                              section 316 of the Economic Aid Act.                    attractions; or (bb) that is engaged in, and derives        28 This subsection was originally published at 85
                                                22 This subsection has been added to conform to       the majority of the operating budget of the entity       FR 20811, subsection III.2.a. (April 15, 2020), as
                                              section 317 of the Economic Aid Act.                    from revenue attributable to, providing live events.                                                Continued




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                                              3698              Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations

                                                 You are ineligible for a PPP loan if, for            securities exchange under section 6 of                      No. If the applicant or the owner of
                                              example:                                                the Securities Exchange Act of 1934 (15                  the applicant is the debtor in a
                                                 i. You are engaged in any activity that              U.S.C. 78f) 32 (SBA will not consider                    bankruptcy proceeding, either at the
                                              is illegal under Federal, state, or local               whether a news organization that is                      time it submits the application or at any
                                              law;                                                    eligible under the conditions described                  time before the loan is disbursed, the
                                                 ii. You are a household employer                     in subsection 1.f. and 1.g.vi. is affiliated             applicant is ineligible to receive a PPP
                                              (individuals who employ household                       with an entity, which includes any                       loan. If the applicant or the owner of the
                                              employees such as nannies or                            entity that owns or controls such news                   applicant becomes the debtor in a
                                              housekeepers);                                          organization, that is an issuer 33); or                  bankruptcy proceeding after submitting
                                                 iii. An owner of 20 percent or more                     ix. Your business has permanently                     a PPP application but before the loan is
                                              of the equity of the applicant is                       closed.34                                                disbursed, it is the applicant’s
                                              presently incarcerated or, for any felony,                 b. Are businesses that are generally                  obligation to notify the lender and
                                              presently subject to an indictment,                     ineligible for 7(a) loans under 13 CFR                   request cancellation of the application.
                                              criminal information, arraignment, or                   120.110 eligible for a PPP loan? 35                      Failure by the applicant to do so will be
                                              other means by which formal criminal                       Paragraphs (a), (g), and (k), of 13 CFR               regarded as a use of PPP funds for
                                              charges are brought in any jurisdiction;                120.110 do not apply to PPP loans. For                   unauthorized purposes.
                                              or has been convicted of, pleaded guilty                PPP loans, the ineligibility restriction in                 The Borrower Application Form for
                                              or nolo contendere to, or commenced                     13 CFR 120.110(n) is superseded by                       PPP loans (SBA Form 2483), which
                                              any form of parole or probation                         subsection B.2.a.iii. of this interim final              reflects this restriction in the form of a
                                              (including probation before judgment)                   rule. Otherwise, a business is not                       borrower certification, is a loan program
                                              for, a felony involving fraud, bribery,                 eligible for a PPP loan if it is a type of               requirement. Lenders may rely on an
                                              embezzlement, or a false statement in a                 business concern (or would be, if the                    applicant’s representation concerning
                                              loan application or an application for                  entity were a business concern)                          the applicant’s or an owner of the
                                              federal financial assistance within the                 described in 13 CFR 120.110, except as                   applicant’s involvement in a bankruptcy
                                              last five years or any other felony within              permitted by subsections B.1.d and                       proceeding.
                                              the last year;                                          B.1.g of this rule or otherwise permitted                   d. Is a hedge fund or private equity
                                                 iv. You, or any business owned or                    by PPP rules. Businesses that are not                    firm eligible for a PPP loan? 38
                                              controlled by you or any of your                        generally eligible for a 7(a) loan under                    No. Hedge funds and private equity
                                              owners, has ever obtained a direct or                   13 CFR 120.110 are described further in                  firms are primarily engaged in
                                              guaranteed loan from SBA or any other                   SBA’s Standard Operating Procedure                       investment or speculation, and such
                                              Federal agency that is currently                        (SOP) 50 10 6, Part 2, Section A,                        businesses are therefore ineligible to
                                              delinquent or has defaulted within the                  Chapter 3.36                                             receive a PPP loan.
                                              last seven years and caused a loss to the                  c. Will I be approved for a PPP loan
                                                                                                                                                               3. Affiliation Rules Generally
                                              government;                                             if my business is in bankruptcy? 37
                                                 v. Your business or organization was                                                                             a. Are affiliates considered together
                                              not in operation on February 15,                           32 Added to conform to section 342 of the             for purposes of determining
                                              2020; 29                                                Economic Aid Act, which also added the following         eligibility? 39
                                                                                                      definitions to paragraph 7(a)(36)(A) of the Small           In most cases, a borrower will be
                                                 vi. You or your business received or                 Business Act (15 U.S.C. 636(a)(36)(A)): ‘‘(xvi) the
                                              will receive a grant under the Shuttered                terms ‘exchange’, ‘issuer’, and ‘security’ have the
                                                                                                                                                               considered together with its affiliates for
                                              Venue Operator Grant program under                      meanings given those terms in section 3(a) of the        purposes of determining eligibility for
                                              section 324 of the Economic Aid Act; 30                 Securities Exchange Act of 1934 (15 U.S.C. 78c(a)).’’    the PPP.40 Under SBA rules, entities
                                                                                                      This provision applies to loans made on or after
                                                 vii. The President, the Vice President,              December 27, 2020.                                          38 This subsection was originally published at 85
                                              the head of an Executive Department, or                    33 See section 317 of the Economic Aid Act.
                                                                                                                                                               FR 23450, subsection III.2.a. (April 28, 2020) and
                                              a Member of Congress, or the spouse of                     34 This provision prohibits an entity that has gone
                                                                                                                                                               has been modified for readability.
                                              such person as determined under                         out of business and has no intention of reopening           39 The text of this subsection was originally

                                              applicable common law, directly or                      from receiving a PPP loan. The Administrator, in         published at 85 FR 20817 (April 15, 2020).
                                                                                                      consultation with the Secretary, has determined             40 Paragraph 7(a)(36)(D)(iv) of the Small Business
                                              indirectly holds a controlling interest in              this provision is necessary to maintain program          Act (15 U.S.C. 636(a)(36)(D)(iv), as added by the
                                              your business; 31                                       integrity, prevent abuse, and prevent PPP loans          CARES Act and amended by the Economic Aid Act,
                                                 viii. Your business is an issuer, the                being made to businesses that have permanently           waives the affiliation rules contained in § 121.103
                                              securities of which are listed on an                    closed. Preserving funds for businesses in operation     for (1) any business concern with not more than 500
                                                                                                      is necessary because only businesses that are still      employees that, as of the date on which the loan
                                              exchange registered as a national                       in operation will retain employees, which is a           is disbursed, is assigned a North American Industry
                                                                                                      primary purposes of the PPP. PPP was not intended        Classification System code beginning with 72; (2)
                                              amended by 85 FR 36308 (June 16, 2020), 85 FR           to support businesses that have permanently closed.      any business concern operating as a franchise that
                                              36717 (June 18, 2020), and 85 FR 38301 (June 26,        A borrower that has temporarily closed or                is assigned a franchise identifier code by the
                                              2020), and has been modified to conform to              temporarily suspended its business but intends to        Administration; (3) any business concern that
                                              subsequent interim final rules or guidance and the      reopen remains eligible for a PPP loan.                  receives financial assistance from a company
                                              Economic Aid Act and for readability.                      35 This subsection replaces the subsection
                                                                                                                                                               licensed under section 301 of the Small Business
                                                29 Added to conform to section 310 of the             originally published at 85 FR 20811, subsection          Investment Act of 1958 (15 U.S.C. 681); and (4)(a)
                                              Economic Aid Act. This provision is effective as if     III.2.c. (‘‘How do I determine if I am ineligible’’)     any business concern (including any station which
                                              included in the CARES Act and applies to any loan       (April 15, 2020) and modified to conform to the          broadcasts pursuant to a license granted by the
                                              made pursuant to section 7(a)(36) of the Small          Economic Aid Act.                                        Federal Communications Commission under title III
                                              Business Act before, on, or after December 27, 2020,       36 SOP 50 10 6 can be found at https://
                                                                                                                                                               of the Communications Act of 1934 (47 U.S.C. 301
                                              including forgiveness of such a loan.                   www.sba.gov/document/sop-50-10-lender-                   et seq.) without regard for whether such a station




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                                                30 Added to conform to section 310 of the             development-company-loan-programs-0. For PPP             is a concern as defined in section 121.105 of title
                                              Economic Aid Act. This provision applies to PPP         loans approved before December 27, 2020, see SOP         13, Code of Federal Regulations, or any successor
                                              loans made on or after December 27, 2020.               50 10 5(K), Subpart B, Chapter 2 for ineligible types    thereto) that employs not more than 500 employees,
                                                31 Added to conform to section 322 of the             of businesses. SOP 50 10 5(K) can be found at            or the size standard established by the
                                              Economic Aid Act. This provision applies to any         https://www.sba.gov/document/sop-50-10-5-lender-         Administrator for the North American Industry
                                              loan made on or after December 27, 2020. For any        development-company-loan-programs.                       Classification System code applicable to the
                                              loan made under section 7(a)(36) to a covered entity       37 This subsection was originally published at 85     business concern, per physical location of such
                                              before December 27, 2020, see subsection B.16 of        FR 23450, subsection III.4. (April 28, 2020) and has     business concern and is majority owned or
                                              this interim final rule.                                been modified for readability.                           controlled by a business concern that is assigned a



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                                                                  Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations                                                     3699

                                              may be considered affiliates based on                       nonprofit organizations listed above                  as set forth in the Second PPP Interim
                                              factors including but not limited to                        were not eligible for SBA Business Loan               Final Rule (85 FR 20817). The affiliation
                                              stock ownership, overlapping                                Programs under section 7(a) of the Small              rules apply to private equity-owned
                                              management,41 and identity of interest.                     Business Act; only for-profit small                   businesses in the same manner as any
                                              See 13 CFR 121.301(f).                                      business concerns were eligible. The                  other business subject to outside
                                                 b. How do SBA’s affiliation rules                        CARES Act made such nonprofit                         ownership or control.46 However, in
                                              affect my eligibility and apply to me                       organizations not only eligible for the               addition to applying any applicable
                                              under the PPP? 42                                           PPP, but also subjected them to SBA’s                 affiliation rules, all borrowers should
                                                 An entity generally is eligible for the                  affiliation rules. As amended, section                carefully review the required
                                              PPP if it, combined with its affiliates, (i)                7(a) of the Small Business Act (15 U.S.C.
                                              is a small business as defined in section                                                                         certification on the Paycheck Protection
                                                                                                          636(a)) now provides that the provisions              Program Borrower Application Form
                                              3 of the Small Business Act (15 U.S.C.                      applicable to affiliations under 13 CFR
                                              632), (ii)(1) has 500 or fewer                                                                                    (SBA Form 2483) stating that ‘‘[c]urrent
                                                                                                          121.103 apply with respect to nonprofit
                                              employees 43 or is a business that                                                                                economic uncertainty makes this loan
                                                                                                          organizations, housing cooperatives,
                                              operates in a certain industry and meets                                                                          request necessary to support the
                                                                                                          and veterans organizations in the same
                                              applicable SBA employee-based size                          manner as with respect to small                       ongoing operations of the Applicant.’’
                                              standards for that industry, if higher,                     business concerns. However, the                          e. Does participation in an employee
                                              and (2) is a tax-exempt nonprofit                           detailed affiliation standards contained              stock ownership plan (ESOP) trigger
                                              organization described in section                           in § 121.103 currently do not apply to                application of the affiliation rules? 47
                                              501(c)(3) of the Internal Revenue Code                      PPP borrowers, because § 121.103(a)(8)
                                              (IRC), a housing cooperative, a tax-                                                                                 No. For purposes of the PPP, a
                                                                                                          provides that applicants in SBA’s                     business’s participation in an ESOP (as
                                              exempt veterans organization described                      Business Loan Programs (which include
                                              in section 501(c)(19) of the IRC, a Tribal                                                                        defined in 15 U.S.C. 632(q)(6)) does not
                                                                                                          the PPP) are subject to the affiliation               result in an affiliation between the
                                              business concern described in section                       rules contained in 13 CFR 121.301.
                                              31(b)(2)(C) of the Small Business Act, a                                                                          business and the ESOP.
                                                                                                             c. Faith-Based Organizations 44
                                              section 501(c)(6) organization, a                              This rule exempts otherwise qualified              4. I Have Determined That I Am Eligible.
                                              destination marketing organization, or                      faith-based organizations from the                    How much can I borrow? 48
                                              any other business concern, or (iii) has                    SBA’s affiliation rules, including those
                                              500 or fewer employees per location (or                     set forth in 13 CFR part 121, where the                  Under the PPP, the maximum loan
                                              an applicable SBA employee-based size                       application of the affiliation rules would            amount for First Draw PPP Loans is the
                                              standard for that industry, if higher) and                  substantially burden those                            lesser of $10 million or an amount that
                                              is either majority owned or controlled                      organizations’ religious exercise. For the            you will calculate using a payroll-based
                                              by a NAICS code 511110 or 5151                                                                                    formula authorized by the Act, as
                                                                                                          reasons described in 85 FR 20817, the
                                              business or is a nonprofit public
                                                                                                          SBA’s affiliation rules, including those              explained below.49 PPP loans approved
                                              broadcasting entity with a trade or
                                                                                                          set forth in 13 CFR part 121, do not                  in 2020 used 2019 or the 1-year before
                                              business under NAICS code 511110 or
                                                                                                          apply to the relationship of any church,              the date on which the loan is made to
                                              5151. Prior to the CARES Act, the
                                                                                                          convention or association of churches,                calculate payroll costs for purposes of
                                              North American Industry Classification System
                                                                                                          or other faith-based organization or                  calculating the maximum loan amount.
                                              code beginning with 511110 or 5151; or (b) any              entity to any other person, group,                    Borrowers who apply for PPP loans
                                              nonprofit organization that is assigned a North             organization, or entity that is based on              2021 and who are not self-employed
                                              American Industry Classification System code                a sincere religious teaching or belief or
                                              beginning with 5151. This interim final rule has no                                                               (including sole proprietorships and
                                              effect on these statutory waivers, which remain in
                                                                                                          otherwise constitutes a part of the                   independent contractors) are also
                                              full force and effect. As a result, the affiliation rules   exercise of religion. This includes any               permitted to use the precise 1-year
                                              contained in section 121.301 also do not apply to           relationship to a parent or subsidiary                period before the date on which the loan
                                              these types of entities. In addition, paragraph             and other applicable aspects of
                                              7(a)(36)(D) of the Small Business Act (15 U.S.C.                                                                  is made to calculate payroll costs if they
                                                                                                          organizational structure or form. A faith-
                                              636(a)(36)(D)), as amended by section 342 of the                                                                  choose not to use 2019 or 2020. Since
                                              Economic Aid Act states that, with respect to a             based organization seeking loans under
                                                                                                                                                                most borrowers will use 2019 or 2020
                                              business concern made eligible under paragraph              this program may rely on a reasonable,
                                              7(a)(36)(D)(iii)(II) or (iv)(IV) (certain news                                                                    the rule text refers only to 2019 or 2020
                                                                                                          good faith interpretation in determining
                                              organizations), the Administrator shall not consider
                                                                                                          whether its relationship to any other                 for simplicity and readability.
                                              whether any affiliated entity, which for purposes of
                                              this subclause shall include any entity that owns or        person, group, organization, or entity is                46 However, the CARES Act waives the affiliation

                                              controls such business concern, is an issuer.               exempt from the affiliation rules under               rules if the borrower receives financial assistance
                                                 41 In order to help potential borrowers identify                                                               from an SBA-licensed Small Business Investment
                                                                                                          this provision, and SBA will not assess,
                                              other businesses with which they may be deemed                                                                    Company (SBIC) in any amount. This includes any
                                              to be affiliated under the common management
                                                                                                          and will not require participating
                                                                                                                                                                type of financing listed in 13 CFR 107.50, such as
                                              standard, the Borrower Application Form, SBA                lenders to assess, the reasonableness of              loans, debt with equity features, equity, and
                                              Form 2483, released on April 2, 2020, requires              the faith-based organization’s                        guarantees. Affiliation is waived even if the
                                              applicants to list other businesses with which they         determination.                                        borrower has investment from other non-SBIC
                                              have common management (including under a
                                              management agreement). The information supplied
                                                                                                             d. Do the SBA affiliation rules                    investors.
                                                                                                                                                                   47 This subsection was originally published at 85
                                              by the applicant in response to that information            prohibit a portfolio company of a
                                              request should be used by applicants as they assess         private equity fund from being eligible               FR 23450, section III.3. (April 28, 2020) and has
                                              whether they have affiliates that should be included                                                              been modified for readability.
                                                                                                          for a PPP loan? 45




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                                                                                                                                                                   48 This subsection was originally published at 85
                                              in their number of employees reported on SBA
                                              Form 2483.
                                                                                                             Borrowers must apply the affiliation               FR 20811, subsection III.2.d. (April 15, 2020) and
                                                 42 The text of this subsection was originally            rules that appear in 13 CFR 121.301(f),               has been modified to conform to additional interim
                                              published at 85 FR 20817 (April 15, 2020) and has                                                                 final rules or guidance and the Economic Aid Act.
                                              been modified to conform to the Economic Aid Act.             44 The text of this subsection was originally          49 See subsection 4.d. for maximum loan amount

                                                 43 For housing cooperatives, section 501(c)(6)           published at 85 FR 20817 (April 15, 2020) and has     applicable to certain farmers and ranchers. For the
                                              organizations, and destination marketing                    been modified for readability.                        maximum loan amount for Second Draw PPP
                                              organizations, the applicable size standard is not            45 This subsection was originally published at 85   Loans, see the the interim final rule on Second
                                              more than 300 employees.                                    FR 23450, subsection III.2.b. (April 28, 2020).       Draw PPP Loans that is being published separately.



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                                              3700              Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations

                                                 a. How do I calculate the maximum                          excess of an annual salary of                     your PPP loan application to
                                              amount I can borrow? 50                                       $100,000: $1,200,000                              substantiate the applied-for PPP loan
                                                 The following methodology, which is                     Average monthly qualifying payroll:                  amount and a 2019 or 2020 (whichever
                                              one of the methodologies authorized by                        $100,000                                          you used to calculate loan amount) IRS
                                              the Act, will be most useful for many                      Multiply by 2.5 = $250,000                           Form 1099–MISC detailing
                                              applicants.                                                Add EIDL loan of $10,000 = $260,000                  nonemployee compensation received
                                                 i. Step 1: Aggregate payroll costs                      Maximum loan amount is $260,000                      (box 7), invoice, bank statement, or book
                                              (defined in detail below in subsections                    You must provide your Form 941 (or                   of record that establishes you are self-
                                              4.g. and 4.h.) from 2019 or 2020 for                    other tax forms containing similar                      employed. If using 2020 to calculate
                                              employees whose principal place of                      information) and state quarterly wage                   loan amount, this is required regardless
                                              residence is the United States.                         unemployment insurance tax reporting                    of whether you have filed a 2020 tax
                                                 ii. Step 2: Subtract any compensation                forms from each quarter in 2019 or 2020                 return with the IRS. You must provide
                                              paid to an employee in excess of                        (whichever you used to calculate loan                   a 2020 invoice, bank statement, or book
                                              $100,000 on an annualized basis, as                     amount), or equivalent payroll processor                of record to establish you were in
                                              prorated for the period during which the                records, along with evidence of any                     operation on or around February 15,
                                              payments are made or the obligation to                  retirement and health insurance                         2020.
                                              make the payments is incurred.51                        contributions. A payroll statement or                      If you have employees, the following
                                                 iii. Step 3: Calculate average monthly               similar documentation from the pay                      methodology should be used to
                                              payroll costs (divide the amount from                   period that covered February 15, 2020                   calculate your maximum loan amount:
                                              Step 2 by 12).                                          must be provided to establish you were                     i. Step 1: Compute 2019 or 2020
                                                 iv. Step 4: Multiply the average                     in operation on February 15, 2020.52                    payroll (using the same year for all
                                              monthly payroll costs from Step 3 by                       b. I have income from self-                          items) by adding the following:
                                              2.5.                                                    employment and file a Form 1040,                           a. Your 2019 or 2020 Form 1040
                                                 v. Step 5: Add the outstanding                       Schedule C, how do I calculate the                      Schedule C line 31 net profit amount (if
                                                                                                      maximum amount I can borrow and                         you are using 2020 and have not yet
                                              amount of an Economic Injury Disaster
                                                                                                      what documentation is required?53                       filed a 2020 return, fill it out and
                                              Loan (EIDL) made between January 31,
                                                                                                         How you calculate your maximum                       compute the value), up to $100,000 on
                                              2020 and April 3, 2020 that you seek to
                                                                                                      loan amount depends upon whether or                     an annualized basis, as prorated for the
                                              refinance. Do not include the amount of
                                                                                                      not you employ other individuals. If you                period during which the payments are
                                              any ‘‘advance’’ under an EIDL COVID–
                                                                                                      have no employees, the following                        made or the obligation to make the
                                              19 loan (because it does not have to be
                                                                                                      methodology should be used to                           payments is incurred, if this amount is
                                              repaid).
                                                                                                      calculate your maximum loan amount:                     over $100,000, reduce it to $100,000, if
                                                 The examples below illustrate this
                                                                                                         i. Step 1: Find your 2019 or 2020 IRS                this amount is less than zero, set this
                                              methodology.
                                                                                                      Form 1040 Schedule C line 31 net profit                 amount at zero;
                                              i. Example 1—No employees make more                     amount (if you are using 2020 to                           b. 2019 or 2020 gross wages and tips
                                                    than $100,000                                     calculate payroll costs and have not yet                paid to your employees whose principal
                                                 Annual payroll: $120,000                             filed a 2020 return, fill it out and                    place of residence is in the United
                                                 Average monthly payroll: $10,000                     compute the value). If this amount is                   States computed using 2019 or 2020 IRS
                                                 Multiply by 2.5 = $25,000                            over $100,000, reduce it to $100,000. If                Form 941 Taxable Medicare wages &
                                                 Maximum loan amount is $25,000                       this amount is zero or less, you are not                tips (line 5c—column 1) from each
                                              ii. Example 2—Some employees make                       eligible for a PPP loan.                                quarter plus any pre-tax employee
                                                    more than $100,000                                   ii. Step 2: Calculate the average                    contributions for health insurance or
                                                 Annual payroll: $1,500,000                           monthly net profit amount (divide the                   other fringe benefits excluded from
                                                 Subtract compensation amounts in                     amount from Step 1 by 12).                              Taxable Medicare wages & tips; subtract
                                                    excess of an annual salary of                        iii. Step 3: Multiply the average                    any amounts paid to any individual
                                                    $100,000: $1,200,000                              monthly net profit amount from Step 2                   employee in excess of $100,000 on an
                                                 Average monthly qualifying payroll:                  by 2.5.                                                 annualized basis, as prorated for the
                                                    $100,000                                             iv. Step 4: Add the outstanding                      period during which the payments are
                                                 Multiply by 2.5 = $250,000                           amount of any Economic Injury Disaster                  made or the obligation to make the
                                                 Maximum loan amount is $250,000                      Loan (EIDL) made between January 31,                    payments is incurred and any amounts
                                              iii. Example 3—No employees make                        2020 and April 3, 2020 that you seek to                 paid to any employee whose principal
                                                    more than $100,000, outstanding                   refinance. Do not include the amount of                 place of residence is outside the United
                                                    EIDL loan of $10,000.                             any advance under an EIDL COVID–19                      States; and
                                                 Annual payroll: $120,000                             loan (because it does not have to be                       c. 2019 or 2020 employer
                                                 Average monthly payroll: $10,000                     repaid).                                                contributions to employee group health,
                                                 Multiply by 2.5 = $25,000                               You must provide the 2019 or 2020                    life, disability, vision and dental
                                                 Add EIDL loan of $10,000 = $35,000                   (whichever you used to calculate loan                   insurance (portion of IRS Form 1040
                                                 Maximum loan amount is $35,000                       amount) Form 1040 Schedule C with                       Schedule C line 14 attributable to those
                                              iv. Example 4—Some employees make                                                                               contributions); retirement contributions
                                                    more than $100,000, outstanding                     52 This subsection clarifies the documentation        (Form 1040 Schedule C line 19), and
                                                    EIDL loan of $10,000                              that must be submitted with an applicant’s loan         state and local taxes assessed on
                                                 Annual payroll: $1,500,000                           application to substantiate the borrower’s payroll
                                                                                                                                                              employee compensation (primarily




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                                                                                                      costs. This requirement applies to loans made after
                                                 Subtract compensation amounts in                     December 27, 2020. For documentation                    under state laws commonly referred to
                                                                                                      requirements for PPP loans made before December         as the State Unemployment Tax Act or
                                                50 This subsection was originally published at 85     27, 2020, see 85 FR 20811, subsection III.1.e. (April   SUTA from state quarterly wage
                                              FR 20811, subsection III.2.d. (April 15, 2020) and      15, 2020).
                                              has been modified to conform to additional rules or       53 This subsection was originally published at 85
                                                                                                                                                              reporting forms).
                                              guidance and the Economic Aid Act.                      FR 21747, subsection III.1.b. (April 20, 2020) and
                                                                                                                                                                 ii. Step 2: Calculate the average
                                                51 See subsection 4.j for treatment of amounts        has been modified to conform to additional rules or     monthly amount (divide the amount
                                              paid to independent contractors.                        guidance and the Economic Aid Act.                      from Step 1 by 12).


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                                                                 Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations                                                  3701

                                                iii. Step 3: Multiply the average                        d. How do farmers and ranchers                      value), and the sum of Schedule F lines
                                              monthly amount from Step 2 by 2.5.                      calculate the maximum PPP loan                         15, 22 and 23, up to $100,000 on an
                                                iv. Step 4: Add the outstanding                       amount? 55                                             annualized basis, as prorated for the
                                              amount of any EIDL made between                            How you calculate your maximum                      period during which the payments are
                                              January 31, 2020 and April 3, 2020 that                 loan amount depends upon whether you                   made or the obligation to make the
                                              you seek to refinance. Do not include                   employ other individuals. If you have                  payments is incurred, if this amount is
                                              the amount of any advance under an                      no employees, the following                            over $100,000, reduce it to $100,000, if
                                              EIDL COVID–19 loan (because it does                     methodology should be used to                          this amount is less than zero, set this
                                              not have to be repaid).                                 calculate your maximum loan amount:                    amount at zero; 56
                                                You must supply your 2019 or 2020                        i. Step 1: Find your 2019 or 2020 IRS                  b. 2019 or 2020 gross wages and tips
                                              (whichever you used to calculate loan                   Form 1040 Schedule F line 9 gross                      paid to your employees whose principal
                                              amount) Form 1040 Schedule C, Form                      income (if you are using 2020 and you                  place of residence is in the United
                                              941 (or other tax forms or equivalent                   have not yet filed a 2020 return, fill it              States computed using 2019 or 2020 IRS
                                              payroll processor records containing                    out and compute the value). If this                    Form 941 Taxable Medicare wages &
                                              similar information) and state quarterly                amount is over $100,000, reduce it to                  tips (line 5c—column 1) from each
                                              wage unemployment insurance tax                         $100,000. If this amount is zero or less,              quarter plus any pre-tax employee
                                              reporting forms from each quarter in                    you are not eligible for a PPP loan.                   contributions for health insurance or
                                              2019 or 2020 (whichever you used to                        ii. Step 2: Divide the amount from                  other fringe benefits excluded from
                                              calculate loan amount) or equivalent                    Step 1 by 12.                                          Taxable Medicare wages & tips; subtract
                                              payroll processor records, along with                      iii. Step 3: Multiply the average                   any amounts paid to any individual
                                              evidence of any retirement and health                   monthly gross income amount from                       employee in excess of $100,000 on an
                                              insurance contributions, if applicable. A               Step 2 by 2.5.                                         annualized basis, as prorated for the
                                              payroll statement or similar                               iv. Step 4: Add the outstanding                     period during which the payments are
                                              documentation from the pay period that                  amount of any Economic Injury Disaster                 made or the obligation to make the
                                              covered February 15, 2020 must be                       Loan (EIDL) made between January 31,                   payments is incurred and any amounts
                                              provided to establish you were in                       2020 and ending on April 3, 2020 that                  paid to any employee whose principal
                                              operation on February 15, 2020.                         you seek to refinance. Do not include                  place of residence is outside the United
                                                c. How does a seasonal employer                       the amount of any advance under an                     States; and
                                              calculate the maximum PPP loan                          EIDL COVID–19 loan (because it does                       c. 2019 or 2020 employer
                                              amount? 54                                              not have to be repaid).                                contributions for employee group
                                                As defined by section 315 of the                         You must provide the 2019 or 2020                   health, life, disability, vision and dental
                                              Economic Aid Act, a borrower is a                       (whichever you used to calculate loan                  insurance (portion of IRS Form 1040
                                              seasonal employer if it does not operate                amount) Form 1040 Schedule F with                      Schedule F line 15 attributable to those
                                              for more than 7 months in any calendar                  your PPP loan application to                           contributions), employer contributions
                                              year or, during the preceding calendar                  substantiate the applied-for PPP loan                  for employee retirement contributions
                                              year, it had gross receipts for any 6                   amount and a 2019 or 2020 (whichever                   (Form 1040 Schedule F line 23, and
                                              months of that year that were not more                  you used to calculate loan amount) IRS                 state and local taxes assessed on
                                              than 33.33 percent of the gross receipts                Form 1099–MISC detailing                               employers for employee compensation
                                              for the other 6 months of that year.                    nonemployee compensation received                      (primarily under state laws commonly
                                              Under section 336 of the Economic Aid                   (box 7), invoice, bank statement, or book              referred to as the State Unemployment
                                              Act, a seasonal employer must                           of record that establishes you are self-               Tax Act or SUTA from state quarterly
                                              determine its maximum loan amount for                   employed. You must provide a 2020                      wage reporting forms).
                                                                                                      invoice, bank statement, or book of                       ii. Step 2: Calculate the average
                                              purposes of the PPP by using the
                                                                                                      record to establish you were in                        monthly amount (divide the amount
                                              employer’s average total monthly
                                                                                                      operation on or around February 15,                    from Step 1 by 12).
                                              payments for payroll for any 12-week                                                                              iii. Step 3: Multiply the average
                                              period selected by the seasonal                         2020.
                                                                                                                                                             monthly amount from Step 2 by 2.5.
                                              employer beginning February 15, 2019,                      If you have employees, the following
                                                                                                                                                                iv. Step 4: Add the outstanding
                                              and ending February 15, 2020.                           methodology should be used to
                                                                                                                                                             amount of any EIDL made between
                                                                                                      calculate your maximum loan amount:                    January 31, 2020 and April 3, 2020 that
                                                 54 This subsection has been added to conform to         i. Step 1: Compute 2019 or 2020
                                                                                                                                                             you seek to refinance. Do not include
                                              section 336 of the Economic Aid Act. Except for         payroll (using the same year for all
                                              loans made pursuant to section 7(a)(36) of the Small                                                           the amount of any advance under an
                                                                                                      items) by adding the following:
                                              Business Act for which SBA has remitted a loan                                                                 EIDL COVID–19 loan (because it does
                                                                                                         a. The difference between your 2019
                                              forgiveness payment to the lender before December                                                              not have to be repaid).
                                              27, 2020, it is effective as if included in the CARES   or 2020 Form 1040 Schedule F line 9                       You must supply your 2019 or 2020
                                              Act and applies to any loan made before, on, or         gross income amount (if you are using                  (whichever you used to calculate loan
                                              after December 27, 2020, including forgiveness of       2020 and you have not yet filed a 2020
                                              such a loan. Previous guidance issued for seasonal                                                             amount) Form 1040 Schedule F, Form
                                              employers stated as follows: ‘‘Under section 1102       return, fill it out and compute the                    941 (or other tax forms or equivalent
                                              of the CARES Act, a seasonal employer may                                                                      payroll processor records containing
                                              determine its maximum loan amount for purposes            55 This subsection has been added to conform to

                                              of the PPP by reference to the employer’ average        section 313 of the Economic Aid Act. This              similar information) and state quarterly
                                              total monthly payments for payroll ‘the 12-week         provision applies to a farmer or rancher who (1)       wage unemployment insurance tax
                                              period beginning February 15, 2019, or at the           operates as a sole proprietorship, an independent      reporting forms from each quarter in




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                                              election of the eligible [borrower], March 1, 2019,     contractor, or is an eligible self-employed            2019 or 2020 (whichever you used to
                                              and ending June 30, 2019.’ Under this interim final     individual; (2) reports farm income or expenses on
                                              rule issued pursuant to section 1109 of the Act, a      a Schedule F (or any equivalent successor              calculate loan amount) or equivalent
                                              seasonal employer may alternatively elect to            schedule); and (3) was in business as of February
                                              determine its maximum loan amount as the average        15, 2020. This provision is effective as if included     56 Any employee payroll costs should be

                                              total monthly payments for payroll during any           in the CARES Act and applies to any loan made          subtracted from the farmer’s or rancher’s gross
                                              consecutive 12-week period between May 1, 2019          before, on, or after December 27, 2020, unless SBA     income to avoid double-counting amounts that
                                              and September 15, 2019.’’ 85 FR 23917 (April 30,        has remitted a loan forgiveness payment to the         represent pay to the employees of the farmer or
                                              2020).                                                  lender on the PPP loan.                                rancher.



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                                              3702              Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations

                                              payroll processor records, along with                      (ii) Step 2: Calculate the average                   owned, directly or indirectly, by a
                                              evidence of any retirement and health                   monthly payroll costs (divide the                       common parent.
                                              insurance contributions, if applicable. A               amount from Step 1 by 12).                                 It is the responsibility of an applicant
                                              payroll statement or similar                               (iii) Step 3: Multiply the average                   for a PPP loan to notify the lender if the
                                              documentation from the pay period that                  monthly payroll costs from Step 2 by                    applicant has applied for or received
                                              covered February 15, 2020 must be                       2.5.                                                    PPP loans in excess of the amount
                                              provided to establish you were in                          (iv) Step 4: Add any outstanding                     permitted by this interim final rule and
                                              operation on February 15, 2020.                         amount of any EIDL made between                         withdraw or request cancellation of any
                                                                                                      January 31, 2020 and April 3, 2020 that                 pending PPP loan application or
                                                 A farmer or rancher who received a
                                                                                                      you seek to refinance. Do not include                   approved PPP loan not in compliance
                                              PPP loan before December 27, 2020 may
                                                                                                      the amount of any advance under an                      with the limitation set forth in this rule.
                                              request a recalculation of the maximum
                                                                                                      EIDL COVID–19 loan (because it does                     Failure by the applicant to do so will be
                                              loan amount based on the formula
                                                                                                      not have to be repaid).                                 regarded as a use of PPP funds for
                                              described above regarding gross income,                    You must supply 2019 or 2020                         unauthorized purposes, and the loan
                                              if doing so would result in a larger                    (whichever you used to calculate loan                   will not be eligible for forgiveness. A
                                              covered loan amount and may receive                     amount) IRS Form 1065 (including K–                     lender may rely on an applicant’s
                                              an increase in its PPP loan based on the                1s) and other relevant supporting                       representation concerning the
                                              recalculation.                                          documentation if the partnership has                    applicant’s compliance with this
                                                 e. How do partnerships calculate the                 employees, including the 2019 or 2020                   limitation.
                                              maximum loan amount?                                    (whichever you used to calculate loan                      The Administrator, in consultation
                                                 The following methodology should be                  amount) IRS Form 941 and state                          with the Secretary, determined that
                                              used to calculate the maximum amount                    quarterly wage unemployment                             limiting the amount of PPP loans that a
                                              that partnerships can borrow:                           insurance tax reporting form from each                  single corporate group may receive will
                                                                                                      quarter (or equivalent payroll processor                promote the availability of PPP loans to
                                                 (i) Step 1: Compute 2019 or 2020                     records or IRS Wage and Tax
                                              payroll (using the same year for all                                                                            the largest possible number of
                                                                                                      Statements) along with records of any                   borrowers, consistent with the CARES
                                              items) by adding (1) net earnings from                  retirement or health insurance
                                              self-employment of individual general                                                                           Act. The Administrator has concluded
                                                                                                      contributions. If the partnership has                   that a limitation of $20,000,000 strikes
                                              partners in 2019 or 2020, as reported on                employees, a payroll statement or
                                              IRS Form 1065 K–1, reduced by section                                                                           an appropriate balance between broad
                                                                                                      similar documentation from the pay                      availability of PPP loans and program
                                              179 expense deduction claimed,                          period that covered February 15, 2020
                                              unreimbursed partnership expenses                                                                               resource constraints.
                                                                                                      must be provided to establish the                          SBA’s affiliation rules, which relate to
                                              claimed, and depletion claimed on oil                   partnership was in operation and had                    an applicant’s eligibility for PPP loans,
                                              and gas properties, multiplied by                       employees on that date. If the                          and any waiver of those rules under the
                                              0.9235,57 that is not more than $100,000                partnership has no employees, an                        CARES Act, continue to apply
                                              per partner; (2) 2019 or 2020 gross                     invoice, bank statement, or book of                     independent of this limitation.
                                              wages and tips paid to your employees                   record establishing the partnership was                 Businesses are subject to this limitation
                                              whose principal place of residence is in                in operation on February 15, 2020 must                  even if the businesses are eligible for the
                                              the United States, if any, which can be                 instead be provided.                                    waiver-of-affiliation provision under the
                                              computed using 2019 or 2020 IRS Form                       f. Can a single corporate group receive              CARES Act or are otherwise not
                                              941 Taxable Medicare wages and tips                     unlimited PPP loans? 58                                 considered to be affiliates under SBA’s
                                              (line 5c—column 1) from each quarter                       No. To preserve the limited resources                affiliation rules.60
                                              plus any pre-tax employee contributions                 available to the PPP program, and in                       This rule has no effect on lender
                                              for health insurance or other fringe                    light of the previous lapse of PPP                      obligations required to obtain an SBA
                                              benefits excluded from Taxable                          appropriations and the high demand for                  guarantee for PPP loans.
                                              Medicare wages and tips, subtracting                    PPP loans, businesses that are part of a                   g. What qualifies as ‘‘payroll
                                              any amounts paid to any individual                      single corporate group shall in no event                costs? ’’ 61
                                              employee in excess of $100,000 and any                  receive more than $20,000,000 of PPP                       Payroll costs consist of compensation
                                              amounts paid to any employee whose                      loans in the aggregate.59 For purposes of               to employees (whose principal place of
                                              principal place of residence is outside                 this limit, businesses are part of a single             residence is the United States) in the
                                              the U.S.; (3) 2019 or 2020 employer                     corporate group if they are majority                    form of salary, wages, commissions, or
                                              contributions for employee group                                                                                similar compensation; cash tips or the
                                              health, life, disability, vision and dental                58 This subsection was originally published at 85
                                                                                                                                                              equivalent (based on employer records
                                              insurance, if any (portion of IRS Form                  FR 26324, subsection III.1. (May 4, 2020).
                                                                                                         59 The Administrator has authority to issue ‘‘such
                                                                                                                                                              of past tips or, in the absence of such
                                              1065 line 19 attributable to those                                                                              records, a reasonable, good-faith
                                                                                                      rules and regulations as [the Administrator] deems
                                              contributions); (4) 2019 or 2020                        necessary to carry out the authority vested in [her]    employer estimate of such tips);
                                              employer contributions to employee                      by or pursuant to’’ 15 U.S.C. Chapter 14A,              payment for vacation, parental, family,
                                              retirement plans, if any (IRS Form 1065                 including authorities established under section
                                                                                                                                                              medical, or sick leave; allowance for
                                              line 18); and (5) 2019 or 2020 employer                 1102 of the CARES Act. Section 1102 provides that
                                                                                                      the Administrator ‘‘may’’ guarantee loans under the     separation or dismissal; payment for the
                                              state and local taxes assessed on                       terms and conditions set forth in section 7(a) of the   provision of employee benefits
                                              employee compensation, primarily state                  Small Business Act, and those conditions specify a      consisting of group health care or group
                                              unemployment insurance tax (from state                  ‘‘maximum’’—but not a minimum—loan amount.




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                                                                                                      See 15 U.S.C. 636(a)(36)(B), (E); see also CARES Act
                                                                                                                                                              life, disability, vision, or dental
                                              quarterly wage reporting forms), if any.
                                                                                                      section 1106(k) (authorizing SBA to issue
                                                                                                                                                                60 See Section 7(a)(36)(D)(iv) of the Small
                                                                                                      regulations to govern loan forgiveness). To preserve
                                                57 This treatment follows the computation of self-    finite appropriations for PPP loans and ensure          Business Act (15 U.S.C. 636(a)(36)(D)(iv), as added
                                              employment tax from IRS Form 1040 Schedule SE           broad access for eligible borrowers, the                by the CARES Act; 13 CFR 121.103(b).
                                              Section A line 4 and removes the ‘‘employer’’ share     Administrator, in consultation with the Secretary,        61 This subsection was originally published at 85

                                              of self-employment tax, consistent with how payroll     has determined that an aggregate limitation on          FR 20811, subsection III.2.f. (April 15, 2020) and
                                              costs for employees in the partnership are              loans to a single corporate group is necessary and      has been modified to conform to the Economic Aid
                                              determined.                                             appropriate.                                            Act.



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                                                                 Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations                                                       3703

                                              insurance,62 including insurance                          No, independent contractors have the                     7. Can I apply for more than one First
                                              premiums, and retirement; payment of                    ability to apply for a PPP loan on their                   Draw PPP Loan? 72
                                              state and local taxes assessed on                       own so they do not count for purposes                         No. Except as set forth in subsection
                                              compensation of employees; and for an                   of a borrower’s PPP loan calculation.66                    D.8, the Administrator, in consultation
                                              independent contractor or sole                            k. Do student workers count when                         with the Secretary, determined that no
                                              proprietor, wages, commissions,                                                                                    eligible borrower may receive more than
                                                                                                      determining the number of employees
                                              income, or net earnings from self-                                                                                 one First Draw PPP Loan. This means
                                                                                                      for PPP loan eligibility? 67
                                              employment, or similar compensation.                                                                               that if you apply for a PPP loan you
                                                h. Is there anything that is expressly                  Yes. Student workers generally count                     should consider applying for the
                                              excluded from the definition of payroll                 as employees, unless (a) the applicant is                  maximum amount. Any borrower who
                                              costs? 63                                               an institution of higher education, as                     received a PPP loan in 2020 received a
                                                Yes. The Act expressly excludes the                   defined in the Department of                               First Draw PPP Loan and is not eligible
                                              following:                                              Education’s Federal Work-Study                             to receive another First Draw PPP Loan,
                                                i. Any compensation of an employee                    regulations, 34 CFR 675.2, and (b) the                     but may be eligible for a second draw
                                              whose principal place of residence is                   student worker’s services are performed                    PPP loan.73
                                              outside of the United States;                           as part of a Federal Work-Study Program
                                                ii. The compensation of an individual                                                                            8. Can I use e-signatures or e-consents
                                                                                                      (as defined in those regulations 68) or a
                                              employee in excess of $100,000 on an                                                                               if a borrower has multiple owners? 74
                                                                                                      substantially similar program of a State
                                              annualized basis, as prorated for the                   or political subdivision thereof.                             Yes, e-signature or e-consents can be
                                              period during which the payments are                    Institutions of higher education must                      used regardless of the number of
                                              made or the obligation to make the                      exclude work study students when                           owners.
                                              payments is incurred;                                   determining the number of employees                        9. When will I have to begin paying
                                                iii. Federal employment taxes                         for PPP loan eligibility, and must also                    principal and interest on my PPP
                                              imposed or withheld during the                          exclude payroll costs for work study                       loan? 75
                                              applicable period, including the
                                                                                                      students from the calculation of payroll                      If you submit to your lender a loan
                                              employee’s and employer’s share of
                                                                                                      costs used to determine their PPP loan                     forgiveness application within 10
                                              FICA (Federal Insurance Contributions
                                              Act) and Railroad Retirement Act taxes,                 amount.                                                    months after the end of your loan
                                              and income taxes required to be                         5. What is the interest rate on a PPP                      forgiveness covered period, you will not
                                              withheld from employees; and                                                                                       have to make any payments of principal
                                                                                                      loan? 69
                                                iv. Qualified sick and family leave                                                                              or interest on your loan before the date
                                              wages for which a credit is allowed                       The interest rate will be 100 basis                      on which SBA remits the loan
                                              under sections 7001 and 7003 of the                     points or one percent, calculated on a                     forgiveness amount on your loan to your
                                              Families First Coronavirus Response                     non-compounding, non-adjustable                            lender (or notifies your lender that no
                                              Act (Pub. L. 116–127).                                  basis.70                                                   loan forgiveness is allowed).
                                                i. May fishing boat owners include                                                                                  Your ‘‘loan forgiveness covered
                                              payroll costs in their PPP loan                         6. What will be the maturity date on a                     period’’ is the period beginning on the
                                              applications that are attributable to                   PPP loan? 71                                               date the lender disburses the PPP loan
                                                                                                                                                                 and ending on any date selected by the
                                              crewmembers described in section                           The maturity is five years.                             borrower that occurs during the period
                                              3121(b)(20) of the Internal Revenue
                                                                                                                                                                 (i) beginning on the date that is 8 weeks
                                              Code? 64                                                   66 See subsection 4.i. regarding fishing boat
                                                                                                                                                                 after the date of disbursement and (ii)
                                                Yes. A fishing boat owner may                         owners including payroll costs for their                   ending on the date that is 24 weeks after
                                              include compensation reported on Box                    crewmembers in the calculation of the PPP loan             the date of disbursement. Your lender
                                              5 of IRS Form 1099–MISC and paid to                     amount.
                                                                                                                                                                 must notify you of remittance by SBA of
                                              a crewmember described in section                          67 This subsection was originally published at 85
                                                                                                                                                                 the loan forgiveness amount (or notify
                                              3121(b)(20) of the Code, up to $100,000                 FR 27287, section III.2. (May 8, 2020) and has been
                                                                                                      modified for readability.
                                                                                                                                                                 you that SBA determined that no loan
                                              on an annualized basis, as prorated for
                                                                                                         68 The Department of Education’s Federal Work-          forgiveness is allowed) and the date
                                              the period during which the payments                                                                               your first payment is due. Interest
                                              are made or the obligation to make the                  Study Programs described at 34 CFR part 675 are
                                                                                                      (1) the Federal Work-Study Program, (2) the Job            continues to accrue during the
                                              payments is incurred, as a payroll cost                                                                            deferment period.
                                                                                                      Location and Development Program, and (3) Work
                                              in its PPP loan application.                            Colleges Program.                                             If you do not submit to your lender a
                                                j. Do independent contractors count                      69 This subsection was originally published at 85       loan forgiveness application within 10
                                              as employees for purposes of PPP loan                   FR 20811, subsection III.2.i. (April 15, 2020) and
                                              calculations? 65                                        has been modified to conform to additional interim            72 This subsection was originally published at 85
                                                                                                      final rules or guidance and the Economic Aid Act.          FR 20811, subsection III.2.i. (‘‘Can I apply for more
                                                 62 This provision has been modified to conform          70 Revised to conform to section 339 of the             than one PPP loan?’’) (April 15, 2020) and has been
                                              to section 308 of the Economic Aid Act. This            Economic Aid Act. The revision applies to PPP              modified to conform to the Economic Aid Act and
                                              revision is effective as if included in the CARES Act   loans made on or after December 27, 2020, but may          for readability. PPP borrowers may be eligible for
                                              and applies to any loan made before, on, or after       apply with respect to a PPP loan made before that          a loan under section 7(a)(37) of the Small Business
                                              December 27, 2020, including forgiveness of such        date upon the mutual agreement of the lender and           Act, ‘‘Paycheck Protection Program Second Draw
                                              a loan.                                                                                                            Loans,’’ see interim final rule on Second Draw PPP
                                                                                                      the borrower. A one percent interest rate provides
                                                 63 This subsection was originally published at 85                                                               Loans that is being published separately.
                                                                                                      low cost funds to borrowers to meet eligible payroll




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                                              FR 20811, subsection III.2.g. (April 15, 2020) and                                                                    73 See interim final rule on Second Draw PPP
                                                                                                      costs and other eligible expenses during this
                                              has been modified to conform to section 344 the                                                                    Loans for eligibility criteria for Second Draw PPP
                                              Economic Aid Act.                                       temporary period of economic dislocation caused            Loans, which is being published separately.
                                                 64 This subsection was originally published at 85    by the coronavirus. Second, for lenders, the 100              74 This subsection was originally published at 85

                                              FR 39066, subsection III.1. (June 30, 2020) and has     basis points offers an attractive interest rate relative   FR 20811, subsection III.2.l. (April 15, 2020).
                                              been modified to conform to section 344 the             to the cost of funding for comparable maturities.             75 This subsection was originally published at 85
                                              Economic Aid Act and for readability.                      71 This subsection was originally published at 85
                                                                                                                                                                 FR 20811, subsection III.2.n. (April 15, 2020), as
                                                 65 This subsection was originally published at 85    FR 36308, subsection III.1.b. (June 16, 2020) and has      amended by 85 FR 36038 (June 16, 2020), and has
                                              FR 20811, subsection III.2.h. (April 15, 2020).         been modified for readability.                             been modified to conform to the Economic Aid Act.



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                                              3704              Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations

                                              months after the end of your loan                       accounting or tracking of supplies,                     Health and Human Services and the
                                              forgiveness covered period, you must                    inventory, records and expenses); 79                    Secretary of Labor; and (ii) the purchase
                                              begin paying principal and interest after                  ix. covered property damage costs                    of—(I) covered materials described in
                                              that period. For example, if a borrower’s               (costs related to property damage and                   section 328.103(a) of title 44, Code of
                                              PPP loan is disbursed on January 25,                    vandalism or looting due to public                      Federal Regulations, or any successor
                                              2021, the 24-week period ends on July                   disturbances that occurred during 2020                  regulation; (II) particulate filtering
                                              12, 2021. If the borrower does not                      that was not covered by insurance or                    facepiece respirators approved by the
                                              submit a loan forgiveness application to                other compensation);                                    National Institute for Occupational
                                              its lender by May 12, 2022, the borrower                   x. covered supplier costs                            Safety and Health, including those
                                              must begin making payments on or after                  (expenditures made by a borrower to a                   approved only for emergency use
                                              May 12, 2022.                                           supplier of goods for the supply of                     authorization; or (III) other kinds of
                                                                                                      goods that—(A) are essential to the                     personal protective equipment, as
                                              10. What forms do I need and how do                     operations of the borrower at the time at               determined by the Administrator in
                                              I submit an application for a PPP                       which the expenditure is made; and (B)                  consultation with the Secretary of
                                              loan? 76                                                is made pursuant to a contract, order, or               Health and Human Services and the
                                                 The applicant must submit Paycheck                   purchase order—(i) in effect at any time                Secretary of Labor; and (C) such
                                              Protection Program Borrower                             before the covered period with respect                  expenditures do not include residential
                                              Application Form (SBA Form 2483), or                    to the applicable covered loan; or (ii)                 real property or intangible property).
                                              lender’s equivalent form, and payroll                   with respect to perishable goods, in                       At least 60 percent of the PPP loan
                                              documentation, as described above. The                  effect before or at any time during the                 proceeds shall be used for payroll costs.
                                              lender must submit SBA Form 2484,                       covered period with respect to the                      For purposes of determining the
                                              Paycheck Protection Program Lender’s                    applicable covered loan); and                           percentage of use of proceeds for payroll
                                              Application for 7(a) Loan Guaranty,                        xi. covered worker protection                        costs, the amount of any EIDL
                                              electronically in accordance with                       expenditures ((A) operating or a capital                refinanced will be included. For
                                              program requirements and maintain the                   expenditures to facilitate the adaptation               purposes of loan forgiveness, however,
                                              forms and supporting documentation in                   of the business activities of an entity to              the borrower will have to document the
                                              its files.                                              comply with requirements established                    proceeds used for payroll costs in order
                                                                                                      or guidance issued by the Department of                 to determine the amount of forgiveness.
                                              11. How can PPP loans be used? 77                       Health and Human Services, the Centers                  While the Act provides that PPP loan
                                                 a. The proceeds of a PPP loan are to                 for Disease Control, or the Occupational                proceeds may be used for the purposes
                                              be used for:                                            Safety and Health Administration, or                    listed above and for other allowable
                                                 i. Payroll costs (as defined in the                  any equivalent requirements established                 uses described in section 7(a) of the
                                              CARES Act, Economic Aid Act and this                    or guidance issued by a State or local                  Small Business Act (15 U.S.C. 636(a)),
                                              interim final rule);                                    government, during the period                           the Administrator believes that finite
                                                 ii. costs related to the continuation of             beginning on March 1, 2020 and ending                   appropriations and the structure of the
                                              group health care, life, disability, vision,            the date on which the national                          Act warrant a requirement that
                                              or dental benefits during periods of paid               emergency with respect to the COVID–                    borrowers use a substantial portion of
                                              sick, medical, or family leave, and group               19 expires related to the maintenance of                the loan proceeds for payroll costs,
                                              health care, life, disability, vision, or               standards for sanitation, social                        consistent with Congress’ overarching
                                              dental insurance premiums;                              distancing, or any other worker or                      goal of keeping workers paid and
                                                 iii. mortgage interest payments (but                 customer safety requirement related to                  employed. This percentage is consistent
                                              not mortgage prepayments or principal                   COVID–19; (B) such expenditures may                     with the limitation on the forgiveness
                                              payments);                                              include—(i) the purchase, maintenance,                  amount set forth in the Flexibility Act.
                                                 iv. rent payments;                                   or renovation of assets that create or
                                                 v. utility payments;                                                                                         This limitation on use of the loan funds
                                                                                                      expand—(I) a drive-through window                       will help to ensure that the finite
                                                 vi. interest payments on any other                   facility; (II) an indoor, outdoor, or
                                              debt obligations that were incurred                                                                             appropriations available for these loans
                                                                                                      combined air or air pressure ventilation                are directed toward payroll protection,
                                              before February 15, 2020;                               or filtration system; (III) a physical
                                                 vii. refinancing an SBA EIDL loan                                                                            as each loan that is issued depletes the
                                                                                                      barrier such as a sneeze guard; (IV) an                 appropriation, regardless of whether
                                              made between January 31, 2020 and                       expansion of additional indoor, outdoor,
                                              April 3, 2020; 78                                                                                               portions of the loan are later forgiven.
                                                                                                      or combined business space; (V) an                         b. How can PPP loans be used by
                                                 viii. covered operations expenditures                onsite or offsite health screening
                                              (payments for any business software or                                                                          individuals with income from self-
                                                                                                      capability; or (VI) other assets relating to            employment who file a Form 1040,
                                              cloud computing service that facilitates                the compliance with the requirements
                                              business operations, product or service                                                                         Schedule C? 80
                                                                                                      or guidance described in subparagraph                      The proceeds of a PPP loan are to be
                                              delivery, the processing, payment, or                   (A), as determined by the Administrator
                                              tracking of payroll expenses, human                                                                             used for the following.
                                                                                                      in consultation with the Secretary of                      i. Owner compensation replacement,
                                              resources, sales and billing functions, or
                                                                                                                                                              calculated based on 2019 or 2020 (using
                                                                                                        79 Items viii. through xi. were added to conform
                                                76 This subsection was originally published at 85                                                             the same year that was used to calculate
                                                                                                      to section 304 of the Economic Aid Act. These
                                              FR 20811, subsection III.2.q. (April 15, 2020).         provisions are effective as if included in the CARES    the loan amount) net profit as described
                                                77 This subsection was originally published at 85
                                                                                                      Act and apply to any loan made before, on, or after     in subsection 4.b.




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                                              FR 20811, subsection III.2.r. (April 15, 2020), as      December 27, 2020, including forgiveness of such           ii. Employee payroll costs (as defined
                                              amended by 85 FR 36308 (June 16, 2020) and has          loan, unless SBA has remitted a loan forgiveness
                                              been modified to conform to the Economic Aid Act.
                                                                                                                                                              in this interim final rule) for employees
                                                                                                      payment to the lender on the PPP loan. Section
                                                78 Under paragraph 7(a)(36)(Q) of the Small           1106 of the CARES Act (15 U.S.C. 9005) was              whose principal place of residence is in
                                              Business Act, as amended by section 341 of the          redesignated as section 7A, transferred to the Small
                                              Economic Aid Act, an EIDL loan used for purposes        Business Act (15 U.S.C. 631 et seq.), and inserted        80 This subsection was originally published at 85

                                              other than paying payroll costs and other eligible      so as to appear after section 7 of the Small Business   FR 21747, subsection III.1.d. (April 20, 2020) and
                                              PPP expenditures is not considered a duplication of     Act (15 U.S.C. 636) in section 304(b) of the            has been modified to conform to the Economic Aid
                                              the assistance available under the PPP.                 Economic Aid Act.                                       Act.



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                                                                Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations                                                     3705

                                              the United States, if you have                             The Administrator, in consultation                  12. What certifications need to be
                                              employees.                                              with the Secretary, determined that it is              made? 85
                                                 iii. Mortgage interest payments (but                 appropriate to limit self-employed                        On the PPP borrower application, an
                                              not mortgage prepayments or principal                   individuals’ (who file a Form 1040                     authorized representative of the
                                              payments) on any business mortgage                      Schedule C) use of loan proceeds to                    applicant must certify in good faith to
                                              obligation on real or personal property                 those types of allowable uses for which                all of the below: 86
                                              (e.g., the interest on your mortgage for                the borrower made expenditures in 2019                    i. The Applicant was in operation on
                                              the warehouse you purchased to store                    or 2020 or that were used on covered                   February 15, 2020, has not permanently
                                              business equipment or the interest on an                property damage, as defined in section                 closed, and was either an eligible self-
                                              auto loan for a vehicle you use to                      7A(a). The Administrator has                           employed individual, independent
                                              perform your business), business rent                   determined that this limitation on self-               contractor, or sole proprietorship with
                                              payments (e.g., the warehouse where                                                                            no employees, or had employees for
                                                                                                      employed individuals who file a Form
                                              you store business equipment or the                                                                            whom it paid salaries and payroll taxes
                                                                                                      1040 Schedule C is consistent with the
                                              vehicle you use to perform your                                                                                or paid independent contractors, as
                                              business), and business utility payments                borrower certification required by the
                                                                                                      Act; specifically, that the PPP loan is                reported on a Form 1099–MISC.
                                              (e.g., the cost of electricity in the                                                                             ii. Current economic uncertainty
                                              warehouse you rent or gas you use                       necessary ‘‘to support the ongoing
                                                                                                      operations’’ of the borrower. The                      makes this loan request necessary to
                                              driving your business vehicle). You                                                                            support the ongoing operations of the
                                              must have claimed or be entitled to                     Administrator and the Secretary thus
                                                                                                      believe that this limitation is consistent             applicant.
                                              claim a deduction for such expenses on                                                                            iii. The funds will be used to retain
                                              your 2019 or 2020 (whichever you used                   with the structure of the Act to maintain
                                                                                                      existing operations and payroll and not                workers and maintain payroll; or make
                                              to calculate loan amount) Form 1040                                                                            payments for mortgage interest, rent,
                                              Schedule C for them to be a permissible                 for business expansion. This limitation
                                                                                                                                                             utilities, covered operations
                                              use. For example, if you did not claim                  on the use of PPP loan proceeds will
                                                                                                                                                             expenditures, covered property damage
                                              or are not entitled to claim utilities                  also help to ensure that the finite
                                                                                                                                                             costs, covered supplier costs, and
                                              expenses on your 2019 or 2020 Form                      appropriations available for these loans               covered worker protection expenditures
                                              1040 Schedule C, you cannot use the                     are directed toward maintaining existing               as specified under the Paycheck
                                              proceeds for utilities.                                 operations and payroll, as each loan that              Protection Program Rules; I understand
                                                 iv. Interest payments on any other                   is made depletes the appropriation.                    that if the funds are knowingly used for
                                              debt obligations that were incurred
                                                                                                         c. Can PPP proceeds be used for                     unauthorized purposes, the federal
                                              before February 15, 2020 (such amounts
                                                                                                      lobbying activities or expenditures? 83                government may hold me legally liable
                                              are not eligible for PPP loan
                                                                                                         No. None of the proceeds of a PPP                   such as for charges of fraud. (As
                                              forgiveness).
                                                                                                      loan may be used for (1) lobbying                      explained above, not more than 40
                                                 v. Refinancing an SBA EIDL loan
                                                                                                      activities, as defined in section 3 of the             percent of loan proceeds may be used
                                              made between January 31, 2020 and
                                                                                                                                                             for nonpayroll costs.)
                                              April 3, 2020 (maturity will be reset to                Lobbying Disclosure Act of 1995 (2
                                                                                                                                                                iv. I understand that loan forgiveness
                                              PPP’s maturity of two years for PPP                     U.S.C. 1602); (2) lobbying expenditures
                                                                                                                                                             will be provided for the sum of
                                              loans made before June 5, 2020 unless                   related to a State or local election; or (3)           documented payroll costs, covered
                                              the borrower and lender mutually agree                  expenditures designed to influence the                 mortgage interest payments, covered
                                              to extend the maturity of such loans to                 enactment of legislation, appropriations,              rent payments, covered utilities,
                                              five years, or PPP’s maturity of five                   regulation, administrative action, or                  covered operations expenditures,
                                              years for PPP loans made on or after                    Executive order proposed or pending                    covered property damage costs, covered
                                              June 5).81                                              before Congress or any State                           supplier costs, and covered worker
                                                 vi. Covered operations expenditures,                 government, State legislature, or local                protection expenditures, and not more
                                              as defined in section 7A(a) of the Small                legislature or legislative body.                       than 40% of the forgiven amount may
                                              Business Act, to the extent they is
                                                                                                         d. What happens if PPP loan funds                   be for non-payroll costs. If required, the
                                              deductible on Form 1040 Schedule C.
                                                                                                      are misused? 84                                        Applicant will provide to the Lender
                                                 vii. Covered property damage costs, as
                                                                                                                                                             and/or SBA documentation verifying
                                              defined in section 7A(a) of the Small                      If you use PPP funds for unauthorized
                                                                                                                                                             the number of full-time equivalent
                                              Business Act, to the extent they is                     purposes, SBA will direct you to repay                 employees on the Applicant’s payroll as
                                              deductible on Form 1040 Schedule C.                     those amounts. If you knowingly use the
                                                 viii. Covered supplier costs, as                                                                            well as the dollar amounts of eligible
                                                                                                      funds for unauthorized purposes, you                   expenses for the covered period
                                              defined in section 7A(a) of the Small                   will be subject to additional liability
                                              Business Act, to the extent they is                                                                            following this loan.
                                                                                                      such as charges for fraud. If one of your                 v. The Applicant has not and will not
                                              deductible on Form 1040 Schedule C.                     shareholders, members, or partners uses
                                                 ix. Covered worker protection                                                                               receive another loan under the Paycheck
                                                                                                      PPP funds for unauthorized purposes,                   Protection Program, section 7(a)(36) of
                                              expenditures, as defined in section                     SBA will have recourse against the
                                              7A(a) of the Small Business Act, to the                                                                        the Small Business Act (15 U.S.C.
                                                                                                      shareholder, member, or partner for the
                                              extent they is deductible on Form 1040
                                                                                                      unauthorized use.                                        85 This subsection was originally published at 85
                                              Schedule C.82                                                                                                  FR 20811, subsection III.2.s. (April 15, 2020), as
                                                                                                                                                             amended by 85 FR 36308 (June 16, 2020) and has




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                                                81 Under section 7(a)(36)(Q) of the Small Business                                                           been modified to conform to the Economic Aid Act
                                                                                                      Act and apply to any loan made before, on, or after
                                              Act, as amended by section 341 of the Economic          December 27, 2020, including forgiveness of such       and the revised PPP Borrower Application Form
                                              Aid Act, an EIDL loan used for purposes other than      loan, unless SBA has remitted a loan forgiveness       (SBA Form 2483).
                                              paying payroll costs and other eligible PPP                                                                      86 A representative of the applicant can certify for
                                                                                                      payment to the lender on the PPP loan.
                                              expenditures is not considered a duplication of the                                                            the business as a whole if the representative is
                                                                                                        83 This subsection has been added to conform to
                                              assistance available under the PPP.                                                                            legally authorized to do so. The certifications have
                                                82 Items vi. through ix. were added to conform to     section 319 of the Economic Aid Act.                   been revised to conform to the Economic Aid Act
                                                                                                        84 This subsection was originally published at 85
                                              section 304 of the Economic Aid Act. These                                                                     and the revised PPP Borrower Application Form
                                              provisions are effective as if included in the CARES    FR 20811, subsection III.2.s. (April 15, 2020).        (SBA Form 2483).



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                                              3706              Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations

                                              636(a)(36)) (this does not include                      consultation with the Department of the                the PPP loan for payroll costs, and not
                                              Paycheck Protection Program second                      Treasury, issued additional guidance on                more than 40 percent of the loan
                                              draw loans, section 7(a)(37) of the Small               May 13, 2020 concerning how SBA will                   forgiveness amount may be attributable
                                              Business Act (15 U.S.C. 636(a)(37)).                    review the required good-faith                         to nonpayroll costs. For example, if a
                                                 vi. The Applicant has not and will not               certification. See FAQ 46 (posted May                  borrower uses 59 percent of its PPP loan
                                              receive a Shuttered Venue Operator                      13, 2020). This guidance included a safe               for payroll costs, it will not receive the
                                              grant from SBA.                                         harbor providing that any PPP borrower,                full amount of loan forgiveness it might
                                                 vii. The President, the Vice President,              together with its affiliates, that received            otherwise be eligible to receive. Instead,
                                              the head of an Executive department, or                 PPP loans with an original principal                   the borrower will receive partial loan
                                              a Member of Congress, or the spouse of                  amount of less than $2 million will be                 forgiveness, based on the requirement
                                              such person as determined under                         deemed to have made the required                       that 60 percent of the forgiveness
                                              applicable common law, does not                         certification concerning the necessity of              amount must be attributable to payroll
                                              directly or indirectly hold a controlling               the loan request in good faith.                        costs. For example, if a borrower
                                              interest in the Applicant, with such                                                                           receives a $100,000 PPP loan, and
                                                                                                      14. Can my PPP loan be forgiven in
                                              terms having the meanings provided in                                                                          during the covered period the borrower
                                                                                                      whole or in part? 88
                                              section 322 of the Economic Aid to                                                                             spends $54,000 (or 54 percent) of its
                                              Hard-Hit Small Businesses, Nonprofits,                     Yes. The amount of loan forgiveness                 loan on payroll costs, then because the
                                              and Venues Act.                                         can be up to the full principal amount                 borrower used less than 60 percent of its
                                                 viii. The Applicant is not an issuer,                of the loan and any accrued interest. An               loan on payroll costs, the maximum
                                              the securities of which are listed on an                eligible borrower will not be responsible              amount of loan forgiveness the borrower
                                              exchange registered as a national                       for any loan payment if the borrower                   may receive is $90,000 (with $54,000 in
                                              securities exchange under section 6 of                  uses all of the loan proceeds for                      payroll costs constituting 60 percent of
                                              the Securities Exchange Act of 1934 (15                 forgivable purposes and employee and                   the forgiveness amount and $36,000 in
                                              U.S.C. 78f).                                            compensation levels are maintained or,                 nonpayroll costs constituting 40 percent
                                                 ix. I further certify that the                       if not, an applicable safe harbor or                   of the forgiveness amount). Because the
                                              information provided in this application                exemption applies. The actual amount                   Economic Aid Act changed the loan
                                              and the information provided in all                     of loan forgiveness will depend, in part,              forgiveness covered period from either
                                              supporting documents and forms is true                  on the total amount of payroll costs                   an 8- or 24-week period to a covered
                                              and accurate in all material respects. I                (including employer contributions for                  period between 8 and 24 weeks at the
                                              understand that knowingly making a                      group health, life, disability, vision and             election of the borrower, SBA is
                                              false statement to obtain a guaranteed                  dental insurance), payments of interest                eliminating the ‘‘alternative covered
                                              loan from SBA is punishable under the                   on mortgage obligations incurred before                period’’ as defined in the interim final
                                              law, including under 18 U.S.C. 1001                     February 15, 2020, rent payments on                    rule published at 85 FR 33004, 33006
                                              and 3571 by imprisonment of not more                    leases dated before February 15, 2020,                 (June 1, 2020), as amended.
                                              than five years and/or a fine of up to                  utility payments for service that began                   Additionally, an eligible borrower
                                              $250,000; under 15 U.S.C. 645 by                        before February 15, 2020, covered                      that received a loan of $150,000 or less
                                              imprisonment of not more than two                       operations expenditures, covered                       shall not, at the time of its application
                                              years and/or a fine of not more than                    property damage costs, covered supplier                for loan forgiveness, be required to
                                              $5,000; and, if submitted to a federally                costs, and covered worker protection                   submit any application or
                                              insured institution, under 18 U.S.C.                    expenditures over the loan forgiveness                 documentation in addition to the
                                              1014 by imprisonment of not more than                   covered period.89 Payroll costs that are               certification and information required
                                              thirty years and/or a fine of not more                  qualified wages taken into account in                  by paragraph 7A(l)(1)(A) of the Small
                                              than $1,000,000.                                        determining the Employer Retention                     Business Act. Such borrowers must
                                                 x. I acknowledge that the Lender will                Credit are not eligible for loan                       retain records relevant to the form that
                                              confirm the eligible loan amount using                  forgiveness. The ‘‘loan forgiveness                    prove compliance with the PPP
                                              required documents submitted. I                         covered period’’ is the period beginning               requirements—with respect to
                                              understand, acknowledge, and agree                      on the date the lender disburses the PPP               employment records, for the 4-year
                                              that the Lender can share the tax                       loan and ending on any date selected by                period following submission of the loan
                                              information with SBA’s authorized                       the borrower that occurs during the                    forgiveness application, and with
                                              representatives, including authorized                   period (i) beginning on the date that is               respect to other records, for the 3-year
                                                                                                      8 weeks after the date of disbursement                 period following submission of the loan
                                              representatives of the SBA Office of
                                                                                                      and (ii) ending on the date that is 24                 forgiveness application. All other
                                              Inspector General, for the purpose of
                                                                                                      weeks after the date of disbursement.                  borrowers must follow the existing
                                              compliance with SBA Loan Program                           To receive full loan forgiveness, a
                                              Requirements and all SBA reviews.                                                                              requirements for loan forgiveness
                                                                                                      borrower must use at least 60 percent of               applications and records retention. SBA
                                              13. Limited Safe Harbor With Respect to                                                                        may review and audit PPP loans of
                                              Certification Concerning Need for PPP                      88 This subsection replaces the rule originally
                                                                                                                                                             $150,000 or less and access any records
                                              Loan Request 87                                         published at 85 FR 20811, subsection III.2.o (April
                                                                                                      15, 2020), as amended by 85 FR 36308 (June 16,
                                                                                                                                                             the borrower is required to retain. All
                                                The CARES Act requires each                           2020) and has been modified to conform to the          borrowers with loans of any size must
                                              applicant applying for a PPP loan to                    Economic Aid Act.                                      provide documentation independently
                                              certify in good faith ‘‘that the
                                                                                                         89 Covered operations expenditures, covered
                                                                                                                                                             to a lender to satisfy relevant Federal,
                                                                                                      property damage costs, covered supplier costs, and     State, local or other statutory or




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                                              uncertainty of current economic                         covered worker protection expenditures were added
                                              conditions makes necessary the loan                     as eligible expenses in section 304 of the Economic    regulatory requirements or in
                                              request to support the ongoing                          Aid Act. Except for loans made pursuant to section     connection with an SBA loan review.
                                              obligations’’ of the applicant. SBA, in
                                                                                                      7(a)(36) of the Small Business Act for which SBA          The Economic Aid Act repealed the
                                                                                                      has remitted a loan forgiveness payment to the         CARES Act provision requiring SBA to
                                                                                                      lender before December 27, 2020, these eligible
                                                87 This subsection has been added to codify the       expenses apply to any loan made before, on, or after
                                                                                                                                                             deduct EIDL Advance Amounts
                                              safe harbor contained in FAQ 46 (posted May 13,         December 27, 2020, including forgiveness of such       received by borrowers from the
                                              2020).                                                  a loan.                                                forgiveness payment amounts remitted


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                                                                 Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations                                                      3707

                                              by SBA to the lender. The EIDL                          authorized to make PPP loans (and                        is in good standing with the appropriate
                                              Advance Amount received by the                          loans under section 7(a)(37) of the Small                Federal banking agency.93
                                              borrower will not reduce the amount of                  Business Act) up to $806.45 billion by                      d. Qualified institutions described in
                                              forgiveness to which the borrower is                    March 31, 2021, the Adminstrator and                     1.c.i. and ii. will be automatically
                                              entitled and will not be deducted from                  the Secretary have jointly determined                    qualified under delegated authority by
                                              the forgiveness payment amount that                     that authorizing additional lenders is                   the SBA upon transmission of CARES
                                              SBA remits to the lender. Any EIDL                      necessary to achieve the purpose of                      Act Section 1102 Lender Agreement
                                              Advance Amounts previously deducted                     allowing as many eligible borrowers as                   (SBA Form 3506) unless they currently
                                              from a borrower’s forgiveness amount                    possible to receive loans by the March                   are designated in Troubled Condition by
                                              will be remitted to the lender, together                31, 2021 deadline.                                       their primary Federal regulator or are
                                              with interest to the remittance date.                      c. The following types of lenders have                subject to a formal enforcement action
                                                                                                                                                               by their primary Federal regulator that
                                              15. Do independent contractors count as                 been determined to meet the criteria and
                                                                                                                                                               addresses unsafe or unsound lending
                                              employees for purposes of PPP loan                      are eligible to make PPP loans unless
                                                                                                                                                               practices.
                                              forgiveness? 90                                         they currently are designated in                            e. A non-bank lender may be
                                                No, independent contractors have the                  Troubled Condition by their primary                      approved to make PPP loans if it has
                                              ability to apply for a PPP loan on their                Federal regulator or are subject to a                    originated, maintained, or serviced more
                                              own so they do not count for purposes                   formal enforcement action with their                     than $10 million in business loans or
                                              of a borrower’s PPP loan forgiveness.                   primary Federal regulator that addresses                 other commercial financial receivables
                                                                                                      unsafe or unsound lending practices:                     during a 12-month period in the past 36
                                              16. For loans made prior to December                       i. Any federally insured depository
                                              27, 2020, what additional                                                                                        months, if the non-bank lender is (1) a
                                                                                                      institution or any federally insured                     community development financial
                                              documentation must a borrower submit                    credit union;
                                              when the President of the United States,                                                                         institution (other than a federally
                                              Vice President of the United States, the                   ii. Any Farm Credit System                            insured bank or federally insured credit
                                              head of an Executive department, or a                   institution 92 (other than the Federal                   union) or (2) a majority minority-,
                                              Member of Congress, or the spouse of                    Agricultural Mortgage Corporation) as                    women-, or veteran/military-owned
                                              any of the preceding, directly or                       defined in 12 U.S.C. 2002(a) that applies                lender.94
                                              indirectly holds a controlling interest in              the requirements under the Bank                          2. Do lenders have to register in
                                              the borrower?                                           Secrecy Act and its implementing                         SAM.gov to make PPP loans? 95
                                                                                                      regulations (collectively, BSA) as a
                                                For PPP loans made before December                                                                                Yes. Given the exigent circumstances
                                                                                                      federally regulated financial institution,
                                              27, 2020, if the President of the United                                                                         in which small businesses and lenders
                                                                                                      or functionally equivalent requirements
                                              States, Vice President of the United                                                                             currently find themselves due to the
                                                                                                      that are not altered by this rule; and
                                              States, the head of an Executive                                                                                 COVID–19 pandemic, PPP lenders will
                                              department, or a Member of Congress, or                    iii. Any depository or non-depository                 have thirty (30) days from the date of
                                              the spouse of such person as determined                 financing provider that originates,                      the first PPP loan disbursement made by
                                              under applicable common law, directly                   maintains, and services business loans                   them after December 27, 2020 to
                                              or indirectly holds a controlling interest              or other commercial financial                            complete SAM registration and provide
                                              in the borrower, the principal executive                receivables and participation interests;                 SBA with the lender’s unique entity
                                              officer, or individual performing a                     has a formalized compliance program;                     identifier.
                                              similar function, of the borrower must                  applies the requirements under the BSA
                                              disclose that information to SBA. Such                  as a federally regulated financial                       3. What do lenders have to do in terms
                                              disclosure must be made not later than                  institution, or the BSA requirements of                  of loan underwriting? 96
                                              January 26, 2021, if the borrower                       an equivalent federally regulated                           Each lender shall:
                                              submitted an application for forgiveness                financial institution; has been operating                   a. Confirm receipt of borrower
                                              before December 27, 2020, or not later                  since at least February 15, 2019, and has                certifications contained in Paycheck
                                              than 30 days after submitting an                        originated, maintained, or serviced more                 Protection Program Borrower
                                              application for forgiveness.                            than $50 million in business loans or                    Application Form (SBA Form 2483)
                                                                                                      other commercial financial receivables                   issued by the Administration or lender’s
                                              C. What do lenders need to know and                     during a consecutive 12 month period
                                              do?                                                                                                              equivalent form;
                                                                                                      in the past 36 months, or is a service                      b. Confirm receipt of information
                                              1. Who is eligible to make PPP loans? 91                provider to any insured depository                       demonstrating that a borrower was
                                                 a. All SBA 7(a) lenders are                          institution that has a contract to support               either an eligible self-employed
                                              automatically approved to make PPP                      such institution’s lending activities in                 individual, independent contractor, or
                                              loans on a delegated basis.                             accordance with 12 U.S.C. 1867(c) and
                                                                                                                                                                  93 This subsection c.iii. was modified to
                                                 b. The Act provides that the authority
                                                                                                        92 Section 314 of the Economic Aid Act contains        implement the rule originally published at 85 FR
                                              to make PPP loans can be extended to                                                                             26324, subsection III.2.a. (May 4, 2020).
                                                                                                      the following information related to Farm Credit
                                              additional lenders determined by the                    System Institutions: ‘‘(1) APPLICABLE RULES.—
                                                                                                                                                                  94 Lenders described in this subsection (e.) should

                                              Administrator and the Secretary to have                 Solely with respect to loans under paragraphs (36)       follow the special instructions in footnote 1 of the
                                              the necessary qualifications to process,                and (37) of section 7(a) of the Small Business Act       1102 Lender Agreement—Non-Bank and Non-
                                                                                                      (15 U.S.C. 636(a)), Farm Credit Administration           Insured Depository Institution Lenders (SBA Form
                                              close, disburse, and service loans made                                                                          3507). This subsection (e.) was adapted from the
                                                                                                      regulations and guidance issued as of July 14, 2020,




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                                              with the SBA guarantee. Since SBA is                    and compliance with such regulations and                 rule originally published at 85 FR 26324, subsection
                                                                                                      guidance, shall be deemed functionally equivalent        III.2.b. (May 4, 2020).
                                                 90 This subsection was originally published at 85                                                                95 This subsection adds a new requirement that
                                                                                                      to requirements referenced in section 3(a)(iii)(II) of
                                              FR 20811, subsection III.2.p. (April 15, 2020).         the interim final rule of the Administration entitled    all PPP lenders must register in SAM.gov. See 2 CFR
                                                 91 This subsection was originally published at 85    ‘Business Loan Program Temporary Changes;                25.110(c)(2)(iii).
                                              FR 20811, subsection III.3.a. (April 15, 2020) and      Paycheck Protection Program’ (85 FR 20811 (April            96 This subsection was originally published at 85

                                              has been modified to conform to additional interim      15, 2020)) or any similar requirement referenced in      FR 20811, subsection III.3.b. (April 15, 2020) and
                                              final rules or guidance and sections 323 and 343 of     that interim final rule in implementing such             has been modified to conform to additional rules or
                                              the Economic Aid Act.                                   paragraph (37).’’                                        guidance and the Economic Aid Act.



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                                              3708              Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations

                                              sole proprietorship with no employees                   while adhering to their BSA obligations.               reported information if the borrower
                                              or had employees for whom the                           Entities that wish to communicate such                 submits documentation supporting its
                                              borrower paid salaries and payroll taxes                COVID–19-related concerns to FinCEN                    request for loan forgiveness and attests
                                              on or around February 15, 2020;                         should go to www.FinCEN.gov, click on                  that it accurately verified the payments
                                                 c. Confirm the dollar amount of                      ‘‘Need Assistance,’’ and select                        for eligible costs.
                                              average monthly payroll costs for 2019                  ‘‘COVID19’’ in the subject drop-down
                                              or 2020 by reviewing the payroll                                                                               5. What fees will lenders be paid? 100
                                                                                                      list.
                                              documentation submitted with the                           Each lender’s underwriting obligation                  For PPP loans made on or after
                                              borrower’s application; 97 and                          under the PPP is limited to the items                  December 27, 2020, SBA will pay
                                                 d. Follow applicable BSA                             above and reviewing the ‘‘Paycheck                     lenders fees, based on the balance of the
                                              requirements:                                           Protection Borrower Application Form.’’                financing outstanding at the time of
                                                 i. Federally insured depository                      Borrowers must submit such                             disbursement of the loan, for processing
                                              institutions and federally insured credit               documentation as is necessary to                       PPP loans in the following amounts:
                                              unions should continue to follow their                  establish eligibility such as payroll                     i. For loans of not more than $50,000,
                                              existing BSA protocols when making                      records, payroll tax filings, or Form                  an amount equal to the lesser of fifty
                                              PPP loans to either new or existing                     1099–MISC, Schedule C or F, income                     (50) percent or $2,500;
                                              customers who are eligible borrowers                    and expenses from a sole                                  ii. Five (5) percent for loans of more
                                              under the PPP. PPP loans for existing                   proprietorship, or bank records. For                   than $50,000 and not more than
                                              customers will not require re-                          borrowers that do not have any such                    $350,000;
                                              verification under applicable BSA                       documentation, the borrower must                          iii. Three (3) percent for loans of more
                                              requirements, unless otherwise                          provide other supporting                               than $350,000 and less than $2,000,000;
                                              indicated by the institution’s risk-based               documentation, such as bank records,                   and
                                              approach to BSA compliance.                             sufficient to demonstrate the qualifying                  iv. One (1) percent for loans of at least
                                                 ii. Entities that are not presently                                                                         $2,000,000.
                                                                                                      payroll amount.
                                              subject to the requirements of the BSA,                    A lender may rely on any certification                 SBA will pay the fee not later than 5
                                              should, prior to engaging in PPP lending                                                                       days after the reported disbursement of
                                                                                                      or documentation submitted by an
                                              activities, including making PPP loans                                                                         the PPP loan and, as required by the
                                                                                                      applicant for a PPP loan or an eligible
                                              to either new or existing customers who                                                                        Economic Aid Act, may not require the
                                                                                                      recipient or eligible entity that (A) is
                                              are eligible borrowers under the PPP,                                                                          fee to be repaid by the lender unless the
                                                                                                      submitted pursuant to all applicable
                                              establish an anti-money laundering                                                                             lender is found guilty of an act of fraud
                                                                                                      statutory requirements, regulations, and
                                              (AML) compliance program equivalent                                                                            in connection with the PPP loan.
                                                                                                      guidance related to a PPP loan,
                                              to that of a comparable federally
                                                                                                      including under paragraph 7(a)(36) of                  6. Can PPP loans be sold into the
                                              regulated institution. Depending upon
                                                                                                      the Small Business Act (15 U.S.C.                      secondary market? 101
                                              the comparable federally regulated
                                                                                                      636(a)(36)); and (B) attests that the
                                              institution, such a program may include                                                                          Yes. A PPP loan may be sold on the
                                                                                                      applicant, eligible recipient, or eligible
                                              a customer identification program (CIP),                                                                       secondary market after the loan is fully
                                                                                                      entity, as applicable, has accurately
                                              which includes identifying and                                                                                 disbursed. A PPP loan may be sold on
                                                                                                      provided the certification or
                                              verifying their PPP borrowers’ identities                                                                      the secondary market at a premium or
                                                                                                      documentation to the lender in
                                              (including e.g., date of birth, address,                                                                       a discount to par value.
                                                                                                      accordance with the statutory
                                              and taxpayer identification number),
                                                                                                      requirements, regulations, and guidance                7. Do the requirements for loan pledges
                                              and, if that PPP borrower is a company,
                                                                                                      related to PPP loans. With respect to a                under 13 CFR 120.434 apply to PPP
                                              following any applicable beneficial
                                                                                                      lender that relies on such a certification             loans pledged for borrowings from a
                                              ownership information collection
                                                                                                      or documentation related to a PPP loan,                Federal Reserve Bank (FRB) or advances
                                              requirements. Alternatively, if available,
                                                                                                      an enforcement action may not be taken                 by a Federal Home Loan Bank
                                              entities may rely on the CIP of a
                                                                                                      against the lender, and the lender shall               (FHLB)? 102
                                              federally insured depository institution
                                                                                                      not be subject to any penalties relating                 No. Pursuant to SBA regulations at 13
                                              or federally insured credit union with
                                                                                                      to loan origination or forgiveness of the              CFR 120.435(d) and (e), a pledge of 7(a)
                                              an established CIP as part of its AML
                                                                                                      PPP loan, if—(A) the lender acts in good               loans to a FRB or FHLB does not require
                                              program. In either instance, entities
                                                                                                      faith relating to loan origination or                  SBA’s prior written consent or notice to
                                              should also understand the nature and
                                                                                                      forgiveness of the PPP loan based on                   SBA. SBA, in consultation with
                                              purpose of their PPP customer
                                                                                                      that reliance; and (B) all other relevant              Treasury, has determined that for
                                              relationships to develop customer risk
                                                                                                      Federal, State, local, and other statutory             purposes of loans made under the PPP,
                                              profiles. Such entities will also
                                                                                                      and regulatory requirements applicable                 the additional requirements set forth in
                                              generally have to identify and report
                                                                                                      to the lender are satisfied with respect               120.434 shall also not apply. This
                                              certain suspicious activity to the U.S.
                                                                                                      to the PPP loan.98                                     would mean, for example, that SBA
                                              Department of the Treasury’s Financial
                                              Crimes Enforcement Network (FinCEN).                    4. Can lenders rely on borrower                        would not have to approve loan
                                              If such entities have questions with                    documentation for loan forgiveness? 99
                                              regard to meeting these requirements,                                                                          to issue a consolidated interim final rule governing
                                                                                                        Yes. The lender does not need to                     all aspects of loan forgiveness and the loan review
                                              they should contact the FinCEN                          independently verify the borrower’s                    process.
                                              Regulatory Support Section at FRC@                                                                                100 This subsection was originally published at 85




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                                              fincen.gov. In addition, FinCEN has                        98 This paragraph was added to conform to           FR 20811, subsection III.3.d. (April 15, 2020) and
                                              created a COVID–19-specific contact                     section 305 of the Economic Aid Act. This shall be     has been modified to conform to section 340 of the
                                              channel, via a specific drop-down                       effective as if included in the CARES Act and shall    Economic Aid Act.
                                                                                                      apply to any loan made before, on, or after               101 This subsection was originally published at 85
                                              category, for entities to communicate to                December 27, 2020, including forgiveness of such       FR 20811, subsection III.4.d (April 15, 2020) and
                                              FinCEN COVID–19-related concerns                        a loan.                                                modified to reflect that advance purchases are not
                                                                                                         99 This subsection was originally published at 85   available.
                                                97 See PPP FAQ 1 (April 3, 2020) for further          FR 20811, subsection III.3.c. (April 15, 2020) and        102 This subsection was originally published at 85

                                              information on this step.                               has been modified for readability. SBA also intends    FR 21747, subsection III.3. (April 20, 2020).



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                                                                Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations                                                    3709

                                              documents or require a multi-party                      terminated and repaid after                              e. All loans will be processed by all
                                              agreement among SBA, the lender, and                    disbursement (including if a borrower                  lenders under delegated authority and
                                              others.                                                 repays the PPP loan proceeds to                        lenders will be permitted to rely on
                                                                                                      conform to the borrower’s certification                certifications of the borrower in order to
                                              8. Are lenders required to use a
                                                                                                      regarding the necessity of the PPP loan                determine eligibility of the borrower
                                              promissory note provided by SBA or
                                              may they use their own? 103                             request). If the lender has received a                 and the use of loan proceeds.
                                                                                                      processing fee on a loan that was
                                                 Lenders may use their own                                                                                   2. Do lenders have to apply the ‘‘credit
                                                                                                      cancelled or voluntarily terminated and
                                              promissory note or an SBA form of                                                                              elsewhere test’’? 110
                                                                                                      repaid after disbursement (including if a
                                              promissory note.                                        borrower repaid the PPP loan proceeds                     No. When evaluating an applicant’s
                                              9. Are lenders required to use a separate               to conform to the borrower’s                           eligibility lenders will not be required to
                                              SBA Authorization document to issue                     certification regarding the necessity of               apply the ‘‘credit elsewhere test’’ (as set
                                              PPP loans? 104                                          the PPP loan request), SBA will not                    forth in section 7(a)(1)(A) of the Small
                                                                                                      require the lender to repay the                        Business Act (15 U.S.C. 636) and SBA
                                                 No. A lender does not need a separate                                                                       regulations at 13 CFR 120.101).
                                                                                                      processing fee unless the lender is
                                              SBA Authorization for SBA to guarantee
                                                                                                      found guilty of an act of fraud in                     3. Are there any fee waivers? 111
                                              a PPP loan. However, lenders must have
                                                                                                      connection with the PPP loan. In
                                              executed SBA Form 2484 (the Lender                                                                               a. There will be no up-front guarantee
                                                                                                      addition to providing ACH credit
                                              Application Form—Paycheck Protection                                                                           fee payable to SBA by the borrower;
                                                                                                      information to direct payment of the
                                              Program Loan Guaranty) 105 to issue PPP                                                                          b. There will be no lender’s annual
                                                                                                      requested processing fee, lenders will be
                                              loans and receive a loan number for                                                                            service fee (‘‘on-going guaranty fee’’)
                                                                                                      required to confirm that all PPP loans
                                              each originated PPP loan. Lenders may                                                                          payable to SBA;
                                              include in their promissory notes for                   for which the lender is requesting a
                                                                                                      processing fee have been fully disbursed                 c. There will be no subsidy
                                              PPP loans any terms and conditions,                                                                            recoupment fee; and
                                              including relating to amortization and                  on the disbursement dates and in the
                                                                                                      loan amounts reported. A lender must                     d. There will be no fee payable to SBA
                                              disclosure, that are not inconsistent                                                                          for any guarantee sold into the
                                              with section 1102 of the CARES Act and                  report through either E-Tran Servicing
                                                                                                      or the SBA Form 1502 report any PPP                    secondary market.
                                              section 7A of the Small Business Act,
                                              the PPP Interim Final Rules and                         loans that have been cancelled before                  4. Who pays the fee to an agent who
                                              guidance, and SBA Form 2484. See FAQ                    disbursement or that have been                         provides assistance in connection with a
                                              21 (posted April 13, 2020). The decision                cancelled or voluntarily terminated and                PPP loan? 112
                                              not to require a separate SBA                           repaid after disbursement.
                                                                                                                                                               Agent fees may not be paid out of the
                                              Authorization in order to ensure that                   11. How do lenders report                              proceeds of a PPP loan. If a borrower
                                              critical PPP loans are disbursed as                     disbursements on PPP loans that are                    has knowingly retained an agent, such
                                              efficiently as practicable.                             approved for loan increases due to the                 fees will be paid by the borrower. A
                                              10. By when must a lender electronically                Economic Aid Act? 107                                  lender is only responsible for paying
                                              submit an SBA Form 1502 indicating                        Lenders must submit the SBA Form                     fees to an agent for services for which
                                              that PPP loan funds have been                           1502 information within 20 calendar                    the lender directly contracts with the
                                              disbursed? 106                                          days after a PPP loan increase is                      agent. The total amount that an agent
                                                 SBA has made available a specific                    approved following the SBA Form 1502                   may collect from the lender for
                                              SBA Form 1502 reporting process                         reporting process. See subsection C.10.                assistance in preparing an application
                                              through which PPP lenders report on                     for more information.                                  for a PPP loan (including referral to the
                                              PPP loans and collect the processing fee                                                                       lender) may not exceed:
                                                                                                      D. What do both borrowers and lenders                    a. One (1) percent for loans of not
                                              on fully disbursed loans to which they                  need to know and do?
                                              are entitled. Lenders must electronically                                                                      more than $350,000;
                                              upload SBA Form 1502 information                        1. What are the loan terms and                           b. 0.50 percent for loans of more than
                                              within 20 calendar days after a PPP loan                conditions? 108                                        $350,000 and less than $2 million; and
                                              is approved. The lender must report on                                                                           c. 0.25 percent for loans of at least $2
                                                                                                        Loans will be guaranteed under the                   million.
                                              SBA Form 1502 whether it has fully                      PPP under the same terms, conditions
                                              disbursed PPP loan proceeds. A lender                                                                            The Act authorizes the Administrator
                                                                                                      and processes as other 7(a) loans, with                to establish limits on agent fees. The
                                              will not receive a processing fee: (1)                  certain changes including but not
                                              Prior to full disbursement of the PPP                                                                          Administrator, in consultation with the
                                                                                                      limited to:                                            Secretary, determined that the agent fee
                                              loan; (2) if the PPP loan is cancelled                    a. The guarantee percentage is 100
                                              before disbursement; or (3) if the PPP                                                                         limits set forth above are reasonable
                                                                                                      percent.                                               based upon the application
                                              loan is cancelled or voluntarily                          b. No collateral will be required.
                                                103 This subsection was originally published at 85
                                                                                                        c. No personal guarantees will be                    applies to PPP loans made on or after December 27,
                                              FR 23450, subsection III.1.a. (April 28, 2020).
                                                                                                      required.                                              2020, but may apply with respect to a PPP loan
                                                104 This subsection was originally published at 85      d. The interest rate will be 100 basis               made before that date upon the mutual agreement
                                              FR 23450, subsection III.1.b. (April 28, 2020) and      points or one percent, calculated on a                 of the lender and the borrower.
                                                                                                                                                               110 This subsection was originally published at 85
                                              has been modified to conform to the Economic Aid        non-compounding, non-adjustable
                                              Act.                                                                                                           FR 20811, subsection III.3.e. (April 15, 2020).
                                                                                                      basis.109




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                                                105 This requirement is satisfied by a lender when                                                             111 This subsection was originally published at 85

                                              the lender completes the process of submitting a                                                               FR 20811, subsection III.4.a. (April 15, 2020).
                                                                                                        107 This subsection was added to conform to the
                                              loan through the E-Tran system; no transmission or                                                               112 This subsection was originally published at 85

                                              retention of a physical copy of Form 2484 is            Economic Aid Act.                                      FR 20811, subsection III.4.c. (April 15, 2020) and
                                              required.                                                 108 This subsection was originally published at 85
                                                                                                                                                             modified to conform to section 340 of the Economic
                                                106 This subsection was originally published at 85    FR 20811, subsection III.4.a. (April 15, 2020) and     Aid Act. This revision is effective as if included in
                                              FR 26321, subsection III.1.b. (May 4, 2020) and has     modified to conform to the Economic Aid Act.           the CARES Act and applies to PPP loans made
                                              been modified to conform to the Economic Aid Act          109 This subsection (d) was revised to conform to    before, on, or after December 27, 2020, including
                                              and for readability.                                    section 339 of the Economic Aid Act. The revision      forgiveness of such a loan.



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                                              3710               Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations

                                              requirements and the fees that lenders                  the PPP Program, which is $10 million                  8. Which other PPP borrowers can
                                              receive for making PPP loans.                           for an individual borrower or $20                      reapply or request an increase in their
                                                                                                      million for a corporate group.                         PPP loan amount? 118
                                              5. Can a borrower take multiple draws
                                              from a PPP loan and thereby delay the                   Additionally, the borrower must                           The following borrowers can reapply
                                              start of the covered period? 113                        provide the lender with required                       or request an increase in their PPP loan
                                                                                                      documentation to support the                           amount:
                                                 No. The lender must make a one-time,                 calculation of the increase. Any request                  a. If a borrower returned all of a PPP
                                              full disbursement of the PPP loan                       for an increase must be submitted                      loan, the borrower may reapply for a
                                              within ten calendar days of loan                        electronically in E-Tran on or before                  PPP loan in an amount the borrower is
                                              approval; for the purposes of this rule,                March 31, 2021, and is subject to the                  eligible for under current PPP rules.
                                              a loan is considered approved when the                  availability of funds.                                    b. If a borrower returned part of a PPP
                                              loan is assigned a loan number by                                                                              loan, the borrower may reapply for an
                                              SBA.114                                                    As described in subsection B.1.c.,
                                                                                                      partnerships, rather than individual                   amount equal to the difference between
                                                 Notwithstanding this limitation,                                                                            the amount retained and the amount
                                              lenders are not responsible for delays in               partners, are eligible for a PPP loan. As
                                                                                                      described in subsection B.4.e., self-                  previously approved.
                                              disbursement attributable to a                                                                                    c. If a borrower did not accept the full
                                              borrower’s failure to timely provide                    employment income of general active
                                                                                                      partners could be reported as a payroll                amount of a PPP loan for which it was
                                              required loan documentation, including                                                                         approved, the borrower may request an
                                              a signed promissory note. Loans for                     cost, up to $100,000 on an annualized
                                                                                                                                                             increase in the amount of the PPP loan
                                              which funds have not been disbursed                     basis, as prorated for the period during
                                                                                                                                                             up to the amount previously approved.
                                              because a borrower has not submitted                    which the payments are made or the
                                                                                                                                                                Any request for an increase must be
                                              required loan documentation within 20                   obligation to make the payments is
                                                                                                                                                             submitted electronically in E-Tran on or
                                              calendar days of loan approval shall be                 incurred, on a PPP loan application                    before March 31, 2021, and is subject to
                                              cancelled by the lender. When                           filed by or on behalf of the partnership.              the availability of funds. SBA will issue
                                              disbursing loans, lenders must send any                 For guidance describing how to                         additional guidance on the process to
                                              amount of loan proceeds designated for                  calculate partnership PPP loan amounts                 reapply or request a loan increase under
                                              the refinance of an EIDL loan directly to               and defining the self-employment                       subsections D.6, D.7, and D.8.
                                              SBA and not to the borrower.                            income of partners, see How to
                                                                                                      Calculate Maximum Loan Amounts,                        9. If a borrower’s PPP loan has already
                                              6. If a partnership received a PPP loan                                                                        been fully disbursed, can the lender
                                                                                                      Question 4 at https://www.sba.gov/sites/
                                              that did not include any compensation                                                                          make an additional disbursement for
                                                                                                      default/files/2020-04/How-to-Calculate-
                                              for its partners, can the loan amount be                                                                       the increased loan proceeds? 119
                                                                                                      Loan-Amounts.pdf (April 20, 2020).
                                              increased to include partner
                                              compensation? 115                                                                                                 Yes. Notwithstanding the requirement
                                                                                                      7. If a seasonal employer received a PPP
                                                                                                                                                             set forth in paragraph 1.a. of the interim
                                                 Yes. If a partnership received a PPP                 loan before December 27, 2020, can the
                                                                                                                                                             final rule on disbursements posted on
                                              loan that only included amounts                         loan amount be increased based on a
                                                                                                                                                             April 28, 2020, i.e., that lenders make a
                                              necessary for payroll costs of the                      revised calculation of the maximum
                                                                                                                                                             one-time, full disbursement of the PPP
                                              partnership’s employees and other                       loan amount? 117                                       loan within ten calendar days of loan
                                              eligible operating expenses, but did not                                                                       approval, if a PPP loan is increased
                                                                                                         Yes. If a seasonal employer received
                                              include any amount for partner                                                                                 under subsections D.6., D.7., or D.8., the
                                                                                                      a PPP loan before December 27, 2020,
                                              compensation,116 the lender may                                                                                lender may make a single additional
                                                                                                      and such employer would be eligible for
                                              electronically submit a request through                                                                        disbursement of the increased loan
                                                                                                      a higher maximum loan amount under
                                              SBA’s E-Tran Servicing site to increase                                                                        proceeds.
                                              the PPP loan amount to include                          section 336 of the Economic Aid Act, as
                                              appropriate partner compensation, even                  described in subsection B.4.c., the                    10. Are recipients of PPP loans entitled
                                              if the loan has been fully disbursed and                lender may electronically submit a                     to exemptions on the grounds provided
                                              even if the lender’s first SBA Form 1502                request through SBA’s E-Tran Servicing                 in Federal nondiscrimination laws for
                                              report to SBA on the PPP loan has                       site to increase the PPP loan amount,                  sex-specific admissions practices, sex-
                                              already been submitted. In no event can                 even if the loan has been fully disbursed              specific domestic violence shelters,
                                              the increased loan amount exceed the                    and even if the lender’s first SBA Form                coreligionist housing, or Indian tribal
                                              maximum loan amount allowed under                       1502 report to SBA on the PPP loan has                 preferences in connection with adoption
                                                                                                      already been submitted. In no event can                or foster care practices? 120
                                                 113 This subsection was originally published at 85   the increased loan amount exceed the                     Yes. With respect to any loan or loan
                                              FR 26321, subsection III.1.a. (May 4, 2020), as         maximum PPP loan amount ($10                           forgiveness under the PPP, the
                                              amended by 85 FR 26321 (June 19, 2020), and has         million for an individual borrower or
                                              been modified for readability.                                                                                 nondiscrimination provisions in the
                                                 114 If the tenth calendar day is a Saturday,         $20 million for a corporate group).                    applicable SBA regulations incorporate
                                              Sunday, or legal holiday, the period continues to       Additionally, the borrower must                        the limitations and exemptions
                                              run until the end of the next business day.             provide the lender with required                       provided in corresponding Federal
                                                 115 This subsection was originally published at 85
                                                                                                      documentation to support the                           statutory or regulatory
                                              FR 29842, subsection III.1.a. (May 19, 2020) and has
                                              been revised to conform to sections 312 and 344 of
                                                                                                      calculation of the increase. Any request
                                              the Economic Aid Act.                                   for an increase must be submitted                        118 This subsection was added to conform to




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                                                 116 A partner in a partnership may not submit a      electronically in E-Tran on or before                  section 312 of the Economic Aid Act. See also
                                              separate PPP loan application as a self-employed        March 31, 2021, and is subject to the                  recalculation available under subsection B.4.d.
                                              individual. Instead, the self-employment income of                                                             above for farmers and ranchers.
                                                                                                      availability of funds.                                   119 This subsection was originally published at 85
                                              general active partners may be reported as a payroll
                                              cost, up to $100,000 on an annualized basis, as                                                                FR 29842, subsection III.2.a. (May 19, 2020) and
                                              prorated for the period during which the payments         117 This subsection was originally published at 85   revised to conform to section 312 of the Economic
                                              are made or the obligation to make the payments         FR 29842, subsection III.1.b. (May 19, 2020) and has   Aid Act.
                                              is incurred, on a PPP loan application filed by or      been revised to conform to sections 312 and 336 of       120 This subsection was originally published at 85

                                              on behalf of the partnership.                           the Economic Aid Act.                                  FR 27287, section III.1. (May 8, 2020).



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                                                                Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations                                          3711

                                              nondiscrimination provisions for sex-                   and Budget’s Office of Information and                 has no preemptive effect but does have
                                              specific admissions practices at                        Regulatory Affairs (OIRA) has                          some retroactive effect consistent with
                                              preschools, non-vocational elementary                   determined that this is a major rule                   specific applicability provisions of the
                                              or secondary schools, and private                       under the Congressional Review Act (5                  Economic Aid Act (such provisions are
                                              undergraduate higher education                          U.S.C. 804(2)). SBA, however, is                       identified in the footnotes).
                                              institutions under Title IX of the                      proceeding under the emergency
                                                                                                                                                             Executive Order 13132
                                              Education Amendments of 1972 (20                        provision at Executive Order 12866
                                              U.S.C. 1681 et seq.), for sex-specific                  section 6(a)(3)(D) based on the need to                  SBA has determined that this rule
                                              emergency shelters and coreligionist                    move expeditiously to mitigate the                     will not have substantial direct effects
                                              housing under the Fair Housing Act of                   current economic conditions arising                    on the States, on the relationship
                                              1968 (42 U.S.C. 3601 et seq.), and for                  from the COVID–19 emergency. This                      between the National Government and
                                              adoption or foster care practices giving                rule’s designation under Executive                     the States, or on the distribution of
                                              child placement preferences to Indian                   Order 13771 will be informed by public                 power and responsibilities among the
                                              tribes under the Indian Child Welfare                   comment.                                               various layers of government. Therefore,
                                              Act of 1978 (25 U.S.C. 1901 et seq.).                      This rule is necessary to implement                 SBA has determined that this rule has
                                                 In addition, for purposes of the PPP,                the Economic Aid Act in order to                       no federalism implications warranting
                                              SBA regulations do not bar a religious                  provide economic relief to small                       preparation of a federalism assessment.
                                              nonprofit entity from making decisions                  businesses nationwide adversely                        Paperwork Reduction Act, 44 U.S.C.
                                              with respect to the membership or the                   impacted under the COVID–19                            Chapter 35
                                              employment of individuals of a                          Emergency Declaration. We anticipate
                                                                                                      that this rule will result in substantial                 SBA has determined that this rule
                                              particular religion to perform work
                                                                                                      benefits to small businesses, their                    requires revisions to existing
                                              connected with the carrying on by such
                                                                                                      employees, and the communities they                    recordkeeping or reporting requirements
                                              nonprofit of its activities.
                                                                                                      serve. However, we lack data to estimate               of the Paycheck Protection Program
                                              E. Additional Information                               the effects of this rule.                              (PPP) information collection (OMB
                                                 All loans guaranteed by the SBA                         The Administrator of OIRA has                       Control Number 3245–0407) as a result
                                              pursuant to the CARES Act and the                       determined that this is a major rule for               of amendments made to the PPP by the
                                              Economic Aid Act will be made                           purposes of the Congressional Review                   Economic Aid Act and implemented in
                                              consistent with constitutional, statutory,              Act (5 U.S.C. 801 et seq.) (CRA). Under                this interim final rule. The revisions
                                              and regulatory protections for religious                section 801(3) of the CRA, a major rule                will affect the PPP Borrower
                                              liberty, including the First Amendment                  takes effect 60 days after the rule is                 Application Form (SBA Form 2483), the
                                              to the Constitution, the Religious                      published in the Federal Register.                     PPP Lender Application Form (SBA
                                              Freedom Restoration Act, 42 U.S.C.                         Notwithstanding this requirement,                   Form 2484), the Lender Application
                                              2000bb–1 and bb–3, and SBA regulation                   section 808(2) of the CRA allows                       Form for Federally Insured Depository
                                              at 13 CFR 113.3–1h, which provides                      agencies to dispense with the                          Institutions, Federally Insured Credit
                                              that nothing in SBA nondiscrimination                   requirements of section 801 when the                   Unions, and Farm Credit System
                                              regulations shall apply to a religious                  agency for good cause finds that such                  Institutions (SBA Form 3506), and the
                                              corporation, association, educational                   procedure would be impracticable,                      Lender Application Form for Non-Bank
                                              institution or society with respect to the              unnecessary, or contrary to the public                 and Non-Insured Depository Institution
                                              membership or the employment of                         interest and the rule shall take effect at             Lenders (SBA Form 3507).
                                                                                                      such time as the agency promulgating                      SBA Form 2483 has been revised to
                                              individuals of a particular religion to
                                                                                                      the rule determines. Pursuant to section               add housing cooperatives, section
                                              perform work connected with the
                                                                                                      808(2) of the CRA, SBA finds, for good                 501(c)(6) organizations, destination
                                              carrying on by such corporation,
                                                                                                      cause, that a 60-day delay in the                      marketing organizations, and certain
                                              association, educational institution or
                                                                                                      effective date is unnecessary and                      news organizations to the categories of
                                              society of its religious activities.
                                                                                                      contrary to the public interest.                       eligible entities; to collect the NAICS
                                                 SBA may provide further guidance, if
                                                                                                         As discussed elsewhere in this                      code of the applicant; to add additional
                                              needed, through SBA notices and a
                                                                                                      interim final rule, the last day to apply              eligible use of proceeds; and to add or
                                              program guide which will be posted on
                                                                                                      for and receive a PPP loan is March 31,                revise the certifications to incorporate
                                              SBA’s website at www.sba.gov.
                                                                                                      2021. Given the short duration of this                 the Economic Aid Act amendments.
                                                 Questions on the Paycheck Protection
                                                                                                      program, and the urgent need to issue                  Changes were made to SBA Form 2484
                                              Program 7(a) Loans may be directed to
                                                                                                      loans quickly, the Administrator in                    to conform to the changes made to SBA
                                              the Lender Relations Specialist in the
                                                                                                      consultation with the Secretary has                    Form 2483. SBA Forms 3506 and 3507
                                              local SBA Field Office. The local SBA
                                                                                                      determined that it is impractical and not              were revised to extend the term through
                                              Field Office may be found at https://
                                                                                                      in the public interest to provide a                    March 31, 2021; restate the way interest
                                              www.sba.gov/tools/local-assistance/
                                                                                                      delayed effective date. An immediate                   rate is calculated; and make clarifying
                                              districtoffices.
                                                                                                      effective date will give small businesses              changes for consistency with program
                                              Compliance With Executive Orders                        the maximum amount of time to apply                    requirements.
                                              12866, 12988, 13132, 13563, and 13771,                  for loans and lenders the maximum                         SBA is developing a process to collect
                                              the Paperwork Reduction Act (44                         amount of time to process applications                 the information necessary for eligible
                                              U.S.C. Ch. 35), and the Regulatory                      before the program ends.                               borrowers to reapply or request an
                                              Flexibility Act (5 U.S.C. 601–612)                                                                             increase in their PPP loan amount as




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                                                                                                      Executive Order 12988                                  described in this interim final rule.
                                              Executive Orders 12866, 13563, and                        SBA has drafted this rule, to the                       SBA has requested emergency
                                              13771                                                   extent practicable, in accordance with                 approval of the revisions to this PPP
                                                This interim final rule is                            the standards set forth in section 3(a)                information collection to enable the
                                              economically significant for the                        and 3(b)(2) of Executive Order 12988, to               Agency to resume the reauthorized PPP
                                              purposes of Executive Orders 12866 and                  minimize litigation, eliminate                         as quickly as possible. Without such
                                              13563, and the Office of Management                     ambiguity, and reduce burden. The rule                 emergency approval, the authority for


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                                              3712              Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations

                                              the program would expire before the                     Administration’s Office of Advocacy                      Comment Date: Comments must be
                                              procedural steps, including the                         guide: How to Comply with the                          received on or before February 16, 2021.
                                              comment periods generally required by                   Regulatory Flexibility Ac. Ch.1. p.9.                  ADDRESSES: You may submit comments,
                                              the Paperwork Reduction Act, could be                   Since this rule is exempt from notice                  identified by number SBA–2021–0002
                                              completed.                                              and comment, SBA is not required to                    through the Federal eRulemaking Portal:
                                              Regulatory Flexibility Act (RFA)                        conduct a regulatory flexibility analysis.             http://www.regulations.gov. Follow the
                                                                                                        Authority: 15 U.S.C. 636(a)(36);                     instructions for submitting comments.
                                                 The Regulatory Flexibility Act (RFA)                 Coronavirus Aid, Relief, and Economic                    SBA will post all comments on
                                              generally requires that when an agency                  Security Act, Pub. L. 116–136, section 1114            www.regulations.gov. If you wish to
                                              issues a proposed rule, or a final rule                 and Economic Aid to Hard-Hit Small                     submit confidential business
                                              pursuant to section 553(b) of the APA or                Businesses, Nonprofits, and Venues Act (Pub.           information (CBI) as defined in the User
                                              another law, the agency must prepare a                  L. 116–260), section 303.                              Notice at www.regulations.gov, please
                                              regulatory flexibility analysis that meets                                                                     send an email to ppp-ifr@sba.gov. All
                                              the requirements of the RFA and                         Jovita Carranza, Michael Faulkender,
                                                                                                      Assistant Secretary for Economic Policy.               other comments must be submitted
                                              publish such analysis in the Federal                                                                           through the Federal eRulemaking Portal
                                              Register. 5 U.S.C. 603, 604. Specifically,              [FR Doc. 2021–00451 Filed 1–12–21; 4:15 pm]
                                                                                                                                                             described above. Highlight the
                                              the RFA normally requires agencies to                   BILLING CODE 8026–03–P
                                                                                                                                                             information that you consider to be CBI
                                              describe the impact of a rulemaking on                                                                         and explain why you believe SBA
                                              small entities by providing a regulatory                                                                       should hold this information as
                                              impact analysis. Such analysis must                     SMALL BUSINESS ADMINISTRATION
                                                                                                                                                             confidential. SBA will review the
                                              address the consideration of regulatory                                                                        information and make the final
                                              options that would lessen the economic                  13 CFR Parts 120 and 121
                                                                                                                                                             determination whether it will publish
                                              effect of the rule on small entities. The               [Docket No. SBA–2021–0002]                             the information.
                                              RFA defines a ‘‘small entity’’ as (1) a
                                                                                                                                                             FOR FURTHER INFORMATION CONTACT: Call
                                              proprietary firm meeting the size                       RIN 3245–AH63
                                              standards of the Small Business                                                                                Center Representative at 833–572–0502,
                                              Administration (SBA); (2) a nonprofit                   Business Loan Program Temporary                        or the local SBA Field Office; the list of
                                              organization that is not dominant in its                Changes; Paycheck Protection                           offices can be found at https://
                                              field; or (3) a small government                        Program Second Draw Loans                              www.sba.gov/tools/local-assistance/
                                              jurisdiction with a population of less                                                                         districtoffices.
                                                                                                      AGENCY: U.S. Small Business
                                              than 50,000. 5 U.S.C. 601(3)–(6). Except                                                                       SUPPLEMENTARY INFORMATION:
                                                                                                      Administration.
                                              for small government jurisdictions with                                                                        I. Background Information
                                              a population of less than 50,000, neither               ACTION: Interim final rule.
                                              State nor local governments are ‘‘small                                                                           On December 27, 2020, President
                                                                                                      SUMMARY: This interim final rule                       Trump signed the Economic Aid to
                                              entities.’’
                                                 The requirement to conduct a                         announces the implementation of                        Hard-Hit Small Businesses, Nonprofits,
                                              regulatory impact analysis does not                     section 311 of the Economic Aid to                     and Venues Act (the Economic Aid Act)
                                              apply if the head of the agency ‘‘certifies             Hard-Hit Small Businesses, Nonprofits,                 (Pub. L. 116–260) into law to provide
                                              that the rule will not, if promulgated,                 and Venues Act (the Economic Aid Act).                 continued assistance to individuals and
                                              have a significant economic impact on                   The Economic Aid Act authorizes the                    businesses that have been financially
                                              a substantial number of small entities.’’               U.S. Small Business Administration to                  impacted by the ongoing coronavirus
                                              5 U.S.C. 605(b). The agency must,                       guarantee additional loans under the                   pandemic. Section 311 of the Economic
                                              however, publish the certification in the               temporary Paycheck Protection                          Aid Act added a new temporary section
                                              Federal Register at the time of                         Program, which was originally                          7(a)(37) to the Small Business Act (15
                                              publication of the rule, ‘‘along with a                 established under the Coronavirus Aid,                 U.S.C. 636(a)(37)). This new section
                                              statement providing the factual basis for               Relief, and Economic Security Act to                   authorizes the U.S. Small Business
                                              such certification.’’ If the agency head                provide economic relief to small                       Administration (SBA or the
                                              has not waived the requirements for a                   businesses nationwide adversely                        Administration) to guarantee Paycheck
                                              regulatory flexibility analysis in                      impacted under the Coronavirus Disease                 Protection Program Second Draw Loans
                                              accordance with the RFA’s waiver                        2019 (COVID–19) Emergency                              (PPP Second Draw Program), under
                                              provision, and no other RFA exception                   Declaration (COVID–19 Emergency                        generally the same terms and conditions
                                              applies, the agency must prepare the                    Declaration) issued by President Trump                 available under the Paycheck Protection
                                              regulatory flexibility analysis and                     on March 13, 2020. Section 311 of the                  Program (PPP) established under section
                                              publish it in the Federal Register at the               Economic Aid Act adds a second                         7(a)(36) of the Small Business Act (15
                                              time of promulgation or, if the rule is                 temporary program to SBA’s 7(a) Loan                   U.S.C. 636(a)(36)). Under section 311,
                                              promulgated in response to an                           Program titled, ‘‘Paycheck Protection                  SBA may guarantee loans under the PPP
                                              emergency that makes timely                             Program Second Draw Loans.’’ This                      Second Draw Program through March
                                              compliance impracticable, within 180                    interim final rule implements the key                  31, 2021 (‘‘Second Draw PPP Loans’’) to
                                              days of publication of the final rule. 5                provisions of section 311 of the                       borrowers that previously received a
                                              U.S.C. 604(a), 608(b).                                  Economic Aid Act and requests public                   PPP loan under section 7(a)(36) of the
                                                 Rules that are exempt from notice and                comment.                                               Small Business Act (‘‘First Draw PPP
                                              comment are also exempt from the RFA                    DATES:                                                 Loans’’) and have used or will use the




khammond on DSKJM1Z7X2PROD with RULES6
                                              requirements, including conducting a                       Effective Date: This interim final rule             full amount of the initial PPP loan for
                                              regulatory flexibility analysis, when                   is effective January 12, 2021.                         authorized purposes on or before the
                                              among other things the agency for good                     Applicability Date: This interim final              expected date of disbursement of the
                                              cause finds that notice and public                      rule applies to loan applications and                  Second Draw PPP Loan.
                                              procedure are impracticable,                            applications for loan forgiveness                         Like First Draw PPP Loans, Second
                                              unnecessary, or contrary to the public                  submitted for Paycheck Protection                      Draw PPP Loans are intended to provide
                                              interest. Small Business                                Program Second Draw Loans.                             expeditious relief to America’s small


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