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Business Loan Program Temporary Changes; Paycheck Protection Program Second Draw Loans

Summary

This Federal Register page, Vol. 86, No. 9, Thursday, January 14, 2021, includes a Small Business Administration interim final rule, Business Loan Program Temporary Changes; Paycheck Protection Program Second Draw Loans. The summary says the rule announces the implementation of section 311 of the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act, which authorizes SBA to guarantee additional loans under the temporary Paycheck Protection Program. It says the Act was signed on December 27, 2020 and gives a comment date of February 16, 2021. The page also carries a Regulatory Flexibility Act discussion and an authority line citing 15 U.S.C. 636(a)(36) and the CARES Act.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Issuer
Congressional materials
Document type
Department Of The Treasury Interim Final Rule On Second Draw Loans Home Treasury Gov Syste
Case
Department Of The Treasury Interim Final Rule On Second Draw Loans Home Treasury Gov System Files 13 Fdcdf6Cb7F

Cite this document

“Business Loan Program Temporary Changes; Paycheck Protection Program Second Draw Loans.” Original at home.treasury.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/department-of-the-treasury-interim-final-rule-on-second-draw-loans-home-treasury-gov-system-files-13-fdcdf6cb7f/, SHA-256 d2b407a11704ca95b8f73a831d39f58c83fe5848a023c1bf7f35ba2cc512c4c6.

Full text

                                              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




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                                              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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                                                                 Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations                                                  3713

                                              businesses. Second Draw PPP Loans                       These comments must be submitted on                    generally provides that a borrower is
                                              generally are guaranteed by SBA under                   or before February 16, 2021. SBA will                  eligible for a Second Draw PPP Loan
                                              the same terms, conditions, and                         consider these comments and the need                   only if it has 300 or fewer employees
                                              processes as First Draw PPP Loans. SBA                  for making any revisions as a result of                and experienced a revenue reduction in
                                              guarantees 100 percent of Second Draw                   these comments.                                        2020 relative to 2019 (described further
                                              PPP Loans and SBA may forgive up to                                                                            below).4 In addition, the Economic Aid
                                              the full principal loan amount. Second                  III. Summary of Key Terms of PPP                       Act provides that a Second Draw PPP
                                              Draw PPP Loans are subject to SBA’s                     Second Draw Loans                                      Loan may only be made to an eligible
                                              and the Department of the Treasury’s                      The rules applicable to Second Draw                  borrower that (i) has received a First
                                              (Treasury’s) consolidated interim final                 PPP Loans are published in section IV                  Draw PPP Loan, and (ii) has used, or
                                              rules implementing updates to the                       of this IFR. This summary provides                     will use, the full amount of the First
                                              Paycheck Protection Program for First                   additional information and explains the                Draw PPP Loan on or before the
                                              Draw PPP Loans (‘‘Consolidated First                    key terms in the IFR. All references to                expected date on which the Second
                                              Draw PPP IFR’’) issued concurrently                     subsections refer to section IV.                       Draw PPP Loan is disbursed to the
                                              with this interim final rule (IFR) 1 and                  Second Draw PPP Loans are generally                  borrower.5 Accordingly, subsections
                                              all PPP loan program requirements,                      subject to the same terms, conditions                  (c)(1)(i) through (c)(1)(iv) of this IFR
                                              except as specified in this IFR. The key                and requirements as First Draw PPP                     implement these criteria. Subsection
                                              differences between First Draw PPP                      Loans. These include, but are not                      (c)(1)(ii) of the IFR clarifies that ‘‘the full
                                              Loans and Second Draw PPP Loans are                     limited to the following terms:                        amount’’ of the borrower’s First Draw
                                              described in this IFR, which explains                     • The guarantee percentage is 100                    PPP Loan includes the amount of any
                                              the loan terms, eligibility requirements,               percent.                                               increase on such First Draw PPP Loan
                                              and application process for Second                        • No collateral will be required.                    made pursuant to the Economic Aid
                                              Draw PPP Loans.                                           • No personal guarantees will be                     Act. In addition, subsection (c)(1)(ii) of
                                                                                                      required.                                              the IFR clarifies that the borrower must
                                              II. Comments and Immediate Effective                      • The interest rate will be 100 basis                have spent the full amount of its First
                                              Date
                                                                                                      points or one percent, calculated on a                 Draw PPP Loan on eligible expenses
                                                 This interim final rule is being issued              non-compounding, non-adjustable                        under the PPP rules to be eligible for a
                                              without advance notice and public                       basis.2                                                Second Draw PPP Loan. This
                                              comment because section 303 of the                        • The maturity is five years.                        clarification will help ensure program
                                              Economic Aid Act authorizes SBA to                        • All loans will be processed by all                 integrity by preventing a borrower from
                                              issue regulations to implement the                      lenders under delegated authority and                  receiving a Second Draw PPP Loan if
                                              Economic Aid Act without regard to                      lenders will be permitted to rely on                   the borrower has not complied with PPP
                                              notice requirements. In addition, this                  certifications of the borrower to                      loan program requirements.6
                                              rule is being issued to allow for                       determine the borrower’s eligibility and
                                              immediate implementation of this                        use of loan proceeds.                                  2. Revenue Reduction Requirement
                                              program. The intent of the Economic                       Subsection (b) of this IFR confirms                     The Economic Aid Act provides that,
                                              Aid Act is that SBA provide relief to                   that these terms apply to Second Draw                  to be eligible for a Second Draw PPP
                                              America’s small businesses                              PPP Loans. Subsection (b) also confirms                Loan, the borrower must have
                                              expeditiously. The last day to apply for                that SBA’s Consolidated First Draw PPP                 experienced a revenue reduction of 25%
                                              and receive a PPP loan is March 31,                     IFR, Frequently Asked Questions                        or greater in 2020 relative to 2019.7 A
                                              2021. Given the short duration of this                  (FAQs), and other guidance about PPP                   borrower must calculate this revenue
                                              program, and the urgent need to issue                   loans under section 7(a)(36) of the Small              reduction by comparing the borrower’s
                                              loans quickly, the Administrator in                     Business Act (15 U.S.C. 636(a)(36))                    quarterly gross receipts for one quarter
                                              consultation with the Secretary has                     apply to Second Draw PPP Loans,                        in 2020 with the borrower’s gross
                                              determined that it is impractical and not               except as specified in this IFR.3                      receipts for the corresponding quarter of
                                              in the public interest to provide a 30-                   The Economic Aid Act includes terms                  2019. For example, a borrower with
                                              day delayed effective date. An                          and conditions, including but not                      gross receipts of $50,000 in the second
                                              immediate effective date will give small                limited to terms relating to eligibility               quarter of 2019 and gross receipts of
                                              businesses the maximum amount of                        and a borrower’s maximum loan                          $30,000 in the second quarter of 2020
                                              time to apply for loans and lenders the                 amount, that apply only to Second Draw                 has experienced a revenue reduction of
                                              maximum amount of time to process                       PPP Loans and do not apply to First                    40 percent between the quarters, and is
                                              applications before the program ends.                   Draw PPP Loans, regardless of when the                 therefore eligible for a Second Draw PPP
                                              This good cause justification also                      First Draw PPP Loan is made. These                     loan (assuming all other eligibility
                                              supports waiver of the 60-day delayed                   terms and conditions specific to Second                criteria are met). Subsection (c)(1)(iv)(A)
                                              effective date for major rules under the                Draw PPP Loans are summarized below.                   of the IFR reflects this methodology.
                                              Congressional Review Act at 5 U.S.C.                                                                           Subsection (c)(1)(iv)(B) of the IFR
                                              808(2). Although this IFR is effective                  A. Eligibility Requirements
                                                                                                                                                             provides that a borrower that was in
                                              immediately, comments are solicited                     1. General Eligibility Requirements                    operation in all four quarters of 2019 is
                                              from interested members of the public                                                                          deemed to have experienced the
                                              on all aspects of the interim final rule.                 In general, the Economic Aid Act
                                                                                                      made the eligibility requirements for                  required revenue reduction if it
                                                 1 The Consolidated First Draw PPP IFR titled         Second Draw PPP Loans narrower than




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                                                                                                                                                               4 See paragraph 7(a)(37)(A)(iv) of the Small
                                              ‘‘Business Loan Program Temporary Changes:              the eligibility requirements for First                 Business Act.
                                              Extension of and Changes to Paycheck Protection         Draw PPP Loans. The Economic Aid Act                     5 See paragraph 7(a)(37)(O) of the Small Business
                                              Program’’ restates existing regulatory provisions to
                                              provide lenders and new PPP borrowers a single                                                                 Act.
                                                                                                         2 Section 339 of the Economic Aid Act added           6 Subsection (B)(11) of the Consolidated First
                                              regulation to consult on borrower eligibility, lender
                                              eligibility, and loan application and origination       ‘‘calculated on a non-compounding, non-adjustable      Draw PPP IFR specifies that the proceeds of a PPP
                                              requirements issues for new First Draw PPP loans,       basis’’ to the maximum interest rate for a PPP loan.   loan may be spent only on certain eligible expenses.
                                              as well as general rules relating to First Draw PPP        3 SBA will be revising the FAQs to conform to the     7 See paragraph 7(a)(37)(A)(iv) of the Small

                                              Loan increases and loan forgiveness.                    Economic Aid Act as quickly as feasible.               Business Act.



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                                              3714               Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations

                                              experienced a reduction in annual                         Moreover, this definition will enhance                  Draw PPP Loans by reducing the limit
                                              receipts of 25 percent or greater in 2020                 the administrability of Second Draw                     on employees per physical location to
                                              compared to 2019 and the borrower                         PPP Loans because it is a definition                    300. Accordingly, a single business
                                              submits copies of its annual tax forms                    already used by the Administration and                  entity that is assigned a NAICS code
                                              substantiating the revenue decline. This                  many small businesses.                                  beginning with 72 is eligible to receive
                                              provision will allow a borrower to                           The IFR specifies that any forgiveness               a Second Draw PPP Loan if it employs
                                              provide annual tax return forms to                        amount of a First Draw PPP Loan that                    no more than 300 employees per
                                              substantiate its revenue reduction. The                   a borrower received in calendar year                    physical location and meets the revenue
                                              Administrator, in consultation with the                   2020 is excluded from a borrower’s                      reduction requirements and otherwise
                                              Secretary of the Treasury (Secretary),                    gross receipts. Excluding the forgiveness               satisfies the eligibility criteria described
                                              has determined that this is necessary to                  amount from a borrower’s gross receipts                 in this IFR.13 Under section 317 of the
                                              improve administrability of Second                        is consistent with section 7A(i) of the                 Economic Aid Act, the same standard
                                              Draw PPP Loans by providing borrowers                     Small Business Act, which expressly                     applies to certain news organizations.14
                                              an additional verifiable method for                       excludes PPP forgiveness amounts from                   Subsections (c)(3) and (c)(4) of the IFR
                                              substantiating their revenue reduction.                   being taxed as income.10 This                           implement these statutory provisions.
                                              This method will be particularly                          clarification ensures the effectiveness of              Borrowers may consult PPP Frequently
                                              important for small borrowers that may                    the second draw loan program by                         Asked Question (FAQ) 24 15 for
                                              not have quarterly revenue information                    ensuring that a borrower is not                         guidance on these standards for
                                              readily available. Moreover, this                         disqualified from receiving a Second                    business concerns with more than one
                                              approach is appropriate because, if                       Draw PPP Loan because it received                       physical location, except that, for
                                              annual filings show a 25 percent                          forgiveness on a First Draw PPP Loan.                   Second Draw PPP Loans, the number of
                                              revenue reduction, then at least one                      This furthers the purpose of the second                 employees per physical location is
                                              quarter in 2020 would have had at least                   draw loan provisions, which is to                       limited to 300 rather than 500.
                                              a 25 percent revenue reduction. A                         deliver additional aid to small                         B. Affiliation Rules
                                              borrower that did not experience a 25                     businesses that previously received a
                                              percent annual decline in revenues, or                    First Draw PPP Loan.                                       The same affiliation rules that apply
                                              that was not in operation in all four                                                                             to First Draw PPP Loans apply to
                                              quarters of 2019, may still meet the                      3. Business Concerns With More Than                     Second Draw PPP Loans, except as
                                              revenue reduction requirement under                       One Physical Location                                   provided in this IFR. As with First Draw
                                              one of the quarterly measurements                            Under the CARES Act, any single                      PPP Loans, in most cases, a borrower is
                                              described above.                                          business entity that is assigned a NAICS                considered together with its affiliates to
                                                The Economic Aid Act does not                           code beginning with 72 (including                       determine eligibility for the PPP.16
                                              include a general definition of gross                     hotels and restaurants) and employs not                 However, the CARES Act waived the
                                              receipts for purposes of determining a                    more than 500 employees per physical                    affiliation rules for certain categories of
                                              borrower’s revenue reduction.8                            location is eligible to receive a First                 borrowers.17 Paragraph 7(a)(37)(E) of the
                                              Subsection (c)(2) of the IFR defines                      Draw PPP Loan.11 In addition, as                        Small Business Act, as amended by the
                                              gross receipts consistent with the                        discussed below, under the                              Economic Aid Act, applies the same
                                              definition of receipts in 13 CFR 121.104                  Consolidated First Draw PPP IFR, SBA’s
                                              of SBA’s size regulations because this                    affiliation rules (13 CFR 121.301) do not                 13 Paragraph 7(a)(37)(D) of the Small Business

                                              definition appropriately captures the                                                                             Act.
                                                                                                        apply to any business entity that is                       14 Paragraph 7(a)(36)(D)(iii)(II) of the Small
                                              type of income that is typically included                 assigned a NAICS code beginning with                    Business Act.
                                              in a small business’s gross receipts.9                    72 and that employs not more than a                        15 See PPP FAQ #24 (posted April 13, 2020),

                                                                                                        total of 500 employees.12 As a result, if               available at https://www.sba.gov/sites/default/files/
                                                8 For an eligible nonprofit organization, a veterans
                                                                                                        each hotel or restaurant location owned                 2020-12/Final%20PPP%20FAQs%20%28December
                                              organization, an eligible nonprofit news                                                                          %209%202020%29-508.pdf.
                                              organization, eligible 501(c) organization, or eligible
                                                                                                        by a parent business is a separate legal                   16 Paragraph 7(a)(36)(D)(iv) of the Small Business

                                              destination marketing organization, gross receipts        business entity and employs not more                    Act (15 U.S.C. 636(a)(36)(D)(iv), as added by the
                                              has the meaning in section 6033 of the Internal           than 500 employees, each hotel or                       CARES Act and amended by the Economic Aid Act,
                                              Revenue Code of 1986. See paragraph 7(a)(37)(I)(ii)       restaurant location is permitted to apply               waived the affiliation rules contained in § 121.103
                                              of the Small Business Act. Subsection (c)(2) of the                                                               for (1) any business concern with not more than 500
                                              IFR clarifies that this definition, which generally
                                                                                                        for a separate PPP loan provided it uses                employees that, as of the date on which the loan
                                              relates to eligible nonprofit organizations, applies      its unique EIN.                                         is disbursed, is assigned a NAICS code beginning
                                              only to eligible nonprofit news organizations rather         Section 317 of the Economic Aid Act                  with 72; (2) any business concern operating as a
                                              than to all eligible news organizations.                  modified this provision for Second                      franchise that is assigned a franchise identifier code
                                                9 Subsection (c)(2) of the IFR generally defines                                                                by SBA; (3) any business concern that receives
                                              gross receipts to include all revenue in whatever                                                                 financial assistance from a company licensed under
                                              form received or accrued (in accordance with the          agent, advertising agent, conference management         section 301 of the Small Business Investment Act
                                              entity’s accounting method) from whatever source,         service provider, freight forwarder or customs          of 1958 (15 U.S.C. 681); and (4)(a) any business
                                              including from the sales of products or services,         broker. All other items, such as subcontractor costs,   concern (including any station which broadcasts
                                              interest, dividends, rents, royalties, fees, or           reimbursements for purchases a contractor makes at      pursuant to a license granted by the Federal
                                              commissions, reduced by returns and allowances.           a customer’s request, investment income, and            Communications Commission under title III of the
                                              Generally, receipts are considered ‘‘total income’’       employee-based costs such as payroll taxes, may         Communications Act of 1934 (47 U.S.C. 301 et seq.)
                                              (or in the case of a sole proprietorship, independent     not be excluded from gross receipts. Subsection         without regard for whether such a station is a
                                              contractor, or self-employed individual ‘‘gross           (c)(2) also adapts the methodology for calculating      concern as defined in 13 CFR 121.105, or any
                                              income’’) plus ‘‘cost of goods sold,’’ and excludes       affiliate receipts from 13 CFR 121.104.                 successor thereto) that employs not more than 500
                                                                                                           10 Section 1106 of the CARES Act (15 U.S.C.
                                              net capital gains or losses as these terms are defined                                                            employees, or the size standard established by the




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                                              and reported on IRS tax return forms. Gross receipts      9005) was redesignated as section 7A, transferred to    Administrator for the NAICS code applicable to the
                                              do not include the following: Taxes collected for         the Small Business Act (15 U.S.C. 631 et seq.), and     business concern, per physical location of such
                                              and remitted to a taxing authority if included in         inserted so as to appear after section 7 of the Small   business concern and is majority owned or
                                              gross or total income (such as sales or other taxes       Business Act (15 U.S.C. 636) in section 304(b) of the   controlled by a business concern that is assigned a
                                              collected from customers and excluding taxes              Economic Aid Act.                                       NAICS code beginning with 511110 or 5151; or (b)
                                                                                                           11 Paragraph 7(a)(36)(D)(iii)(I) of the Small        any nonprofit organization that is assigned a NAICS
                                              levied on the concern or its employees); proceeds
                                              from transactions between a concern and its               Business Act.                                           code beginning with 5151.
                                              domestic or foreign affiliates; and amounts                  12 Paragraph 7(a)(36)(D)(iv) of the Small Business      17 Paragraph 7(a)(36)(D)(iv) of the Small Business

                                              collected for another by a travel agent, real estate      Act.                                                    Act.



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                                                                Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations                                                     3715

                                              waivers to Second Draw PPP Loans,                       Special Administrative Region of Hong                   Draw PPP Loans, the Economic Aid Act
                                              adds a waiver for certain eligible news                 Kong; 22                                                provides that the relevant time period
                                              organizations, and makes adjustments to                    • any person required to submit a                    for calculating a borrower’s payroll costs
                                              reflect the reduced size requirement for                registration statement under section 2 of               for a Second Draw PPP Loan is either
                                              Second Draw PPP Loans. Specifically,                    the Foreign Agents Registration Act of                  the twelve-month period prior to when
                                              business concerns with a NAICS code                     1938 (22 U.S.C. 612); 23                                the loan is made or calendar year 2019.
                                              beginning with 72 qualify for the                          • a person or entity that receives a                 The Act also provided tailored
                                              affiliation waiver for Second Draw PPP                  grant for shuttered venue operators                     methodologies for certain categories of
                                              Loans if they employ 300 or fewer                       under section 324 of the Economic Aid                   borrowers. These calculations are
                                              employees. Eligible news organizations                  Act; 24                                                 reflected in subsection (f) of this IFR.
                                              with a NAICS code beginning with                           • entities in which the President, the               Subsection (f) of the IFR uses ‘‘calendar
                                              511110 or 5151 (or majority-owned or                    Vice President, the head of an Executive                year 2020’’ to refer to ‘‘the twelve-month
                                              controlled by a business concern with                   department, or a Member of Congress, or                 period prior to when the loan is made.’’
                                              those NAICS codes) may qualify for the                  the spouse of such person owns,                         Calculating payroll costs based on
                                              affiliation waiver for Second Draw PPP                  controls, or holds at least 20 percent of               calendar year 2020 rather than the
                                              Loans only if they employ 300 or fewer                  any class of equity; 25 or                              twelve months preceding the date the
                                              employees per physical location.18                         • a publicly traded company, defined                 loan is made will simplify the
                                                                                                      as an issuer, the securities of which are               calculations and documentation
                                              Subsection (d)(2) implements these
                                                                                                      listed on an exchange registered as a                   requirements for borrowers because
                                              revised affiliation waivers. SBA also
                                                                                                      national securities exchange under                      payroll records are more commonly
                                              adopted a religious exemption to the
                                                                                                      section 6 of the Securities Exchange Act                created and retained on a calendar-year
                                              affiliation rules by regulation,19 which
                                                                                                      of 1934 (15 U.S.C. 78f).26                              basis. Allowing borrowers to calculate
                                              applies to Second Draw PPP loans.
                                                                                                      In addition, subsection (e)(9) of this IFR              payroll costs based on calendar year
                                              C. Excluded Entities                                    provides that an entity that has                        2020 is also not expected to result in a
                                                                                                      previously received a Second Draw PPP                   significant difference in payroll costs
                                                 An entity that is ineligible to receive              Loan may not receive another Second                     compared to the twelve months
                                              a First Draw PPP Loan under the CARES                   Draw PPP Loan, as required by the                       preceding the date the loan is made
                                              Act or Consolidated First Draw PPP IFR                  Economic Aid Act.27 Subsection (e)(9)                   because all Second Draw PPP Loans will
                                              is also ineligible for a Second Draw PPP                also prohibits an entity that has                       be made in the first quarter of 2021.
                                              Loan.20 Subsection (e)(1) of the IFR                    permanently closed from receiving a                     However, the rule notes that Second
                                              implements this restriction. Subsection                 Second Draw PPP Loan because                            Draw PPP Loan borrowers who are not
                                              (e)(1) ensures that a borrower that                     paragraph 7(a)(37)(A)(iv) of the Small                  self-employed (including sole
                                              received a First Draw PPP Loan despite                  Business Act is best understood to                      proprietorships and independent
                                              being ineligible to receive the loan is not             describe existing businesses. The                       contractors) are also permitted to use
                                              eligible to receive a Second Draw PPP                   Administrator, in consultation with the                 the precise 1-year period before the date
                                              Loan.                                                   Secretary, has determined this provision                on which the loan is made to calculate
                                                 The Economic Aid Act also prohibits                  is also necessary to maintain program                   payroll costs if they choose not to use
                                              several additional categories of                        integrity, prevent abuse, and preserve                  2019 or 2020 to calculate payroll costs.
                                              borrowers from receiving a Second                       the availability of Second Draw PPP                       Consistent with the Economic Aid
                                              Draw PPP Loan under section 7(a)(37) of                 Loan funds for businesses still in                      Act, subsections (f)(3) and (f)(4) of the
                                              the Small Business Act. These                           operation. Preserving funds for such                    IFR include tailored calculation
                                              categories of prohibited borrowers are                  businesses is necessary because only                    methodologies for seasonal businesses,
                                              listed in subsection (e) of the IFR:                    businesses that are still in operation will             new entities that did not exist for the
                                                 • A business concern or entity                       retain employees, which is a primary                    full twelve-month period preceding the
                                              primarily engaged in political activities               purpose of the PPP. A borrower that has                 Second Draw PPP Loan, and borrowers
                                              or lobbying activities, including any                   temporarily closed or temporarily                       assigned a NAICS code beginning with
                                              entity that is organized for research or                suspended its business remains eligible                 72 at the time of disbursement. For
                                              for engaging in advocacy in areas such                  for a Second Draw PPP Loan.                             borrowers assigned a NAICS code
                                              as public policy or political strategy or                                                                       beginning with 72 at the time of
                                                                                                      D. Payroll Cost Calculation                             disbursement, the Economic Aid Act
                                              that describes itself as a think tank in
                                                                                                        In general, section 307 of the                        provides that the maximum loan
                                              any public documents; 21
                                                                                                      Economic Aid Act provides that the                      amount is equal to three-and-a-half (3.5)
                                                 • certain entities organized under the               maximum loan amount for a Second                        months of payroll costs rather than two-
                                              laws of the People’s Republic of China                  Draw PPP Loan is equal to the lesser of                 and-a-half (2.5) months.28 These
                                              or the Special Administrative Region of                 two and half months of the borrower’s                   subsections also provide that, for a
                                              Hong Kong, or with other specified ties                 average monthly payroll costs or $2                     borrower with a NAICS code beginning
                                              to the People’s Republic of China or the                million. Relative to First Draw PPP                     with 72 that would fall into more than
                                                                                                      loans, the Economic Aid Act adjusted                    one category listed in subsection (f) (for
                                                18 Paragraph 7(a)(37)(E) of the Small Business Act.
                                                                                                      the methodology for calculating a                       example, a business with a NAICS code
                                                19 See section (B)(3)(c) of the Consolidated First
                                                                                                      borrower’s payroll costs. Unlike First                  beginning with 72 that is also a seasonal
                                              Draw PPP IFR.
                                                20 Paragraph 7(a)(37)(O) of the Small Business Act
                                                                                                                                                              business or is also a new entity without




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                                                                                                        22 Paragraph 7(a)(37)(A)(iv)(III)(cc) of the Small
                                              provides that a Second Draw PPP Loan may be                                                                     12 months of payroll costs), the
                                                                                                      Business Act.
                                              made only to a borrower that received a First Draw        23 Paragraph 7(a)(37)(A)(iv)(III)(dd) of the Small
                                                                                                                                                              borrower may calculate its average
                                              PPP Loan under paragraph 7(a)(36). In addition,                                                                 monthly payroll costs based on the
                                              section 7(a)(37)(B) provides that the Administrator     Business Act.
                                              may guarantee covered loans to eligible entities
                                                                                                        24 Paragraph 7(a)(37)(A)(iv)(III)(ee) of the Small    methodology that applies to the entity
                                              under the same terms, conditions, and processes as      Business Act.                                           but may use the 3.5 multiplier
                                                                                                        25 Section 322 of the Economic Aid Act.
                                              First Draw PPP Loans.
                                                21 Paragraph 7(a)(37)(A)(iv)(III)(bb) of the Small      26 Section 342 of the Economic Aid Act.                 28 Paragraph 7(a)(37)(C)(iv) of the Small Business

                                              Business Act.                                             27 Paragraph 7(a)(37)(F) of the Small Business Act.   Act.



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                                              3716               Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations

                                              applicable to businesses with a NAICS                      and Economic Aid Act. The                              F. Lender Requirements
                                              code beginning with 72. The                                Administrator has concluded that a                       Subsection (g) of this IFR contains the
                                              Administrator, in consultation with the                    limitation of $4,000,000 is appropriate                provisions specific to lenders for
                                              Secretary, has determined that this                        because it is proportional to the                      Second Draw PPP Loans. Paragraph
                                              methodology is necessary to provide                        $20,000,000 maximum amount for                         7(a)(37)(K) of the Small Business Act,
                                              small businesses in the accommodation                      corporate groups that is provided under                added by the Economic Aid Act, states
                                              and food services sector the full amount                   the Consolidated First Draw PPP IFR                    that a lender approved to make First
                                              of relief provided in the Economic Aid                     when the maximum loan amount for a                     Draw PPP loans may make Second Draw
                                              Act while allowing these borrowers to                      single PPP loan is $10,000,000.                        PPP Loans under the same terms and
                                              calculate their average monthly payroll                                                                           conditions as new First Draw PPP
                                              costs accurately.                                          E. Second Draw PPP Loan Application
                                                                                                         and Documentation Requirements                         Loans. Subsection (g)(2) of this IFR
                                                 The Economic Aid Act included a                                                                                provides that lenders are subject to the
                                              new payroll cost calculation for farmers                      Subsection (g) of this IFR includes the             same requirements when making
                                              and ranchers receiving First Draw PPP                      application and documentation                          Second Draw PPP Loans as when they
                                              Loans. However, it did not specify how                     requirements for Second Draw PPP                       are making First Draw PPP Loans. These
                                              payroll costs should be calculated for                     Loans. The documentation required to                   provisions allow a lender approved to
                                              Second Draw PPP Loans to farmers and                       substantiate an applicant’s payroll cost               make Second Draw PPP Loans to use
                                              ranchers. This IFR clarifies that the                      calculations is generally the same as                  existing program guidance and standard
                                              same general calculation for farmers and                   documentation required for First Draw                  operating procedures to the maximum
                                              ranchers applicable to First Draw PPP                      PPP Loans. However, no additional                      extent practicable.31 The requirements
                                              Loans applies to Second Draw PPP                           documentation to substantiate payroll                  applicable to PPP lenders are in sections
                                              Loans, with adjustments that (i)                           costs will be required if the applicant (i)            (C) and (D) of the Consolidated First
                                              eliminate the provision for refinancing                    used calendar year 2019 figures to                     Draw PPP IFR. If a borrower has not
                                              of an Economic Injury Disaster Loan                        determine its First Draw PPP Loan                      submitted new payroll documentation
                                              (EIDL), which does not apply to Second                     amount, (ii) used calendar year 2019                   with its Second Draw PPP Loan
                                              Draw PPP Loans, and (ii) apply the                         figures to determine its Second Draw                   application because it previously
                                              choice of time period for calculating a                    PPP Loan amount (instead of calendar                   submitted 2019 payroll information to
                                              farmer’s or rancher’s payroll costs for                    year 2020), and (iii) the lender for the               the same lender when it applied for its
                                              Second Draw PPP Loans, consistent                          applicant’s Second Draw PPP Loan is                    First Draw PPP Loan, then the lender
                                              with other Second Draw PPP Loans.                                                                                 must confirm the borrower’s average
                                                                                                         the same as the lender that made the
                                              This IFR also specifies that, in                                                                                  monthly payroll costs based on that
                                                                                                         applicant’s First Draw PPP Loan. In
                                              calculating a farmer’s or rancher’s                                                                               prior documentation.
                                                                                                         such cases, additional documentation is
                                              maximum loan amount, any employee                                                                                   In addition, for a Second Draw PPP
                                                                                                         not required because the lender already
                                              payroll costs should be subtracted from                                                                           Loan greater than $150,000, the lender
                                                                                                         has the relevant documentation
                                              the farmer’s or rancher’s gross income to                                                                         must confirm the dollar amount and
                                                                                                         supporting the borrower’s payroll costs.
                                              avoid double-counting amounts that                                                                                percentage of the borrower’s revenue
                                                                                                         The lender may request additional
                                              represent pay to the employees of the                                                                             reduction by performing a good faith
                                                                                                         documentation, however, if on further
                                              farmer or rancher.                                                                                                review, in a reasonable time, of the
                                                 Subsections (f)(7) and (f)(8) of the IFR                review the lender concludes that it
                                                                                                         would be useful in conducting the                      borrower’s calculations and supporting
                                              include tailored calculation                                                                                      documents concerning the borrower’s
                                              methodologies for self-employed                            lender’s good-faith review of the
                                                                                                         borrower’s loan amount calculation.                    revenue reduction. If the lender
                                              individuals and partnerships. These                                                                               identifies errors in the borrower’s
                                              methodologies are based on the                                For loans with a principal amount
                                                                                                                                                                calculation or a material lack of
                                              corresponding methodologies for self-                      greater than $150,000, the applicant
                                                                                                                                                                substantiation in the borrower’s
                                              employed individuals and partnerships                      must also submit documentation
                                                                                                                                                                supporting documents, the lender
                                              that are used for First Draw PPP                           adequate to establish that the applicant
                                                                                                                                                                should work with the borrower to
                                              Loans.29 These methodologies have                          experienced a revenue reduction of 25%
                                                                                                                                                                remedy the issue.
                                              been adjusted to eliminate the provision                   or greater in 2020 relative to 2019. (The
                                              for refinancing of an EIDL loan, which                     revenue reduction requirement is                       G. Loans to Borrowers With Unresolved
                                              does not apply to Second Draw PPP                          addressed in subsection (c)(1)(iv) of this             First Draw PPP Loans
                                              loans and to apply the choice of time                      IFR.) Such documentation may include                      As described in SBA’s interim final
                                              period for calculating payroll costs,                      relevant tax forms, including annual tax               rule on SBA Loan Review Procedures
                                              consistent with other Second Draw PPP                      forms, or, if relevant tax forms are not               and Related Borrower and Lender
                                              loans.                                                     available, quarterly financial statements              Responsibilities, SBA may review any
                                                 Finally, subsection (f)(9) provides that                or bank statements. For loans with a                   PPP loan, as the Administrator deems
                                              businesses that are part of a single                       principal amount of $150,000 or less,                  appropriate.32 Subsection (i) of the IFR
                                              corporate group shall in no event                          such documentation is not required at                  establishes procedures relating to the
                                              receive more than $4,000,000 of Second                     the time the borrower submits its                      handling of a Second Draw PPP Loan
                                              Draw PPP Loans in the aggregate. The                       application for a loan, but must be                    application by a borrower whose First
                                              Administrator, in consultation with the                    submitted on or before the date the                    Draw PPP Loan is under review by SBA
                                              Secretary, determined that limiting the                    borrower applies for loan forgiveness, as              (‘‘unresolved borrower’’). If a borrower’s
                                                                                                         required under the Economic Aid Act.30




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                                              amount of Second Draw PPP Loans that                                                                              First Draw PPP loan is under review by
                                              a single corporate group may receive                       If a borrower does not submit an                       SBA and/or information in SBA’s
                                              will promote the availability of PPP                       application for loan forgiveness, such                 possession indicates that the borrower
                                              loans to the largest possible number of                    documentation must be provided upon                    may have been ineligible for the First
                                              borrowers, consistent with the CARES                       SBA’s request.
                                                                                                                                                                  31 Paragraph 7(a)(37)(N) of the Small Business
                                                29 See subsections (B)(4)(b) and (B)(4)(e) of the          30 See paragraph 7(a)(37)(I)(i) of the Small         Act.
                                              Consolidated First Draw PPP IFR.                           Business Act.                                            32 85 FR 33010, 33012.




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                                                                Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations                                                    3717

                                              Draw PPP Loan it received or for the                         unresolved issues regarding the                   marketing organization, or an eligible
                                              loan amount it received, the lender will                     applicant’s First Draw PPP Loan?                  nonprofit news organization 33 that:
                                              receive notification from SBA when the                  (j) Are Second Draw PPP Loans eligible for                (i) Previously received a First Draw
                                              lender submits an application for a                          loan forgiveness?                                 PPP loan in accordance with the
                                              guaranty of a Second Draw PPP Loan                      IV. Paycheck Protection Program                        eligibility criteria in the Consolidated
                                              and will not receive an SBA loan                        Second Draw Loans                                      First Draw PPP IFR;
                                              number until the issue related to the                                                                             (ii) has used, or will use, the full
                                              unresolved borrower’s First Draw PPP                    (a) Second Draw PPP Loan Program                       amount of its First Draw PPP Loan
                                              Loan is resolved. SBA will resolve                         Under section 7(a)(37) of the Small                 (including the amount of any increase
                                              issues related to unresolved borrowers                  Business Act (15 U.S.C. 636(a)(37)), SBA               on such First Draw PPP Loan) on
                                              expeditiously. These procedures are                     is authorized to guarantee Paycheck                    authorized uses under subsection
                                              designed to promote compliance with                     Protection Program Second Draw Loans                   (B)(11) of the Consolidated First Draw
                                              the eligibility requirements for Second                 (‘‘Second Draw PPP Loans’’).                           PPP IFR on or before the expected date
                                              Draw PPP Loans by preventing                                                                                   on which the Second Draw PPP Loan
                                              additional loans from being made to                     (b) What requirements apply to Second                  will be disbursed; 34
                                              borrowers that were not eligible for a                  Draw PPP Loans?                                           (iii) employs not more than 300
                                              First Draw PPP Loan or received an                        (1) Second Draw PPP Loans are                        employees, unless it satisfies the
                                              impermissible loan amount. At the same                  subject to SBA’s and the Department of                 alternative criteria for businesses with a
                                              time, these procedures do not disqualify                the Treasury’s (‘‘Treasury’s’’)                        North American Industry Classification
                                              an eligible unresolved borrower from                    consolidated interim final rule                        System (‘‘NAICS’’) code beginning with
                                              receiving a Second Draw PPP Loan, in                    implementing the Paycheck Protection                   72 and eligible news organizations with
                                              recognition that many flags will be                     Program (‘‘Consolidated First Draw PPP                 more than one physical location
                                              resolved in the borrower’s favor. The                   IFR’’) and all PPP loan program                        described in subsection (c)(3) or (c)(4) of
                                              Administrator, in consultation with the                 requirements, except as otherwise                      this section; and
                                              Secretary, has determined that these                    provided in this section, including but                   (iv) (A) experienced a reduction in
                                              procedures strike an appropriate                        not limited to the following terms:                    revenue in calendar year 2020,
                                              balance between promoting program                                                                              measured as follows:
                                                                                                        (i) The guarantee percentage is 100                     (1) the applicant had gross receipts
                                              integrity and preventing abuse, while
                                                                                                      percent.                                               during the first, second, third, or fourth
                                              making Second Draw PPP Loans
                                              available to all eligible borrowers as                    (ii) No collateral will be required.                 quarter in 2020 that demonstrate at least
                                              expeditiously as possible. SBA will set                   (iii) No personal guarantees will be                 a 25 percent reduction from the
                                              aside available appropriations to fund                  required.                                              applicant’s gross receipts during the
                                              Second Draw PPP Loans applied for by                      (iv) The interest rate will be 100 basis             same quarter in 2019 (for example, an
                                              unresolved borrowers in the event they                  points or one percent, calculated on a                 applicant that had gross receipts of
                                              are approved.                                           non-compounding, non-adjustable basis.                 $50,000 in the second quarter of 2019
                                                                                                        (v) The maturity is five years.                      and had gross receipts of $30,000 in the
                                              H. Loan Forgiveness
                                                                                                        (vi) All loans will be processed by all              second quarter of 2020 experienced a 40
                                                 Loan forgiveness of Second Draw PPP                  lenders under delegated authority and                  percent revenue reduction between
                                              Loans and the loan review process for                   lenders will be permitted to rely on                   these two quarters);
                                              Second Draw PPP Loans are generally                     certifications of the borrower in order to                (2) if the applicant was not in
                                              subject to the interim final rules                      determine eligibility of the borrower                  business during the first or second
                                              regarding Loan Forgiveness and SBA                      and the use of loan proceeds.                          quarter of 2019, but was in business
                                              Loan Review Procedures and Related                        (2) Frequently Asked Questions and                   during the third and fourth quarters of
                                              Borrower and Lender Responsibilities,                   other guidance issued by SBA or by                     2019, the applicant had gross receipts
                                              as modified to conform to the Economic                  SBA in consultation with the                           during the first, second, third, or fourth
                                              Aid Act by the Consolidated First Draw                  Department of the Treasury with respect                quarter of 2020 that demonstrate at least
                                              PPP IFR, which is being published                       to PPP loans under section 7(a)(36) of                 a 25 percent reduction from the
                                              concurrently with this IFR. Subsection                  the Small Business Act (15 U.S.C.                      applicant’s gross receipts during the
                                              (j) contains forgiveness provisions                     636(a)(36)) (‘‘First Draw PPP Loans’’)                 third or fourth quarter of 2019 (for
                                              specific to Second Draw PPP loans.                      apply to Second Draw PPP Loans,                        example, an applicant that had gross
                                              Table of Contents                                       except as otherwise provided in this                   receipts of $50,000 in the third quarter
                                                                                                      section.                                               of 2019 and had gross receipts of
                                              (a) Second Draw PPP Loan Program                                                                               $30,000 in the third quarter of 2020–
                                              (b) What requirements apply to Second Draw              (c) Who is eligible for a Second Draw                  demonstrating a reduction of 40 percent
                                                   PPP Loans?                                         PPP Loan?
                                              (c) Who is eligible for a Second Draw PPP                                                                      from the applicant’s gross receipts
                                                   Loan?                                                Subject to subsection (e) of this                    during the third quarter in 2019);
                                              (d) How do SBA’s affiliation rules affect an            section, below, the following applicants                  (3) if the applicant was not in
                                                   applicant’s eligibility for a Second Draw          are eligible for Second Draw PPP Loans:                business during the first, second, or
                                                   PPP Loan?                                                                                                 third quarter of 2019, but was in
                                              (e) Who is not eligible for a Second Draw PPP
                                                                                                        (1) An applicant is eligible for a
                                                                                                                                                             business during the fourth quarter of
                                                   Loan?                                              Second Draw PPP Loan if it is a
                                                                                                                                                             2019, the applicant had gross receipts
                                              (f) What is the maximum loan amount for a               business concern, independent




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                                                   Second Draw PPP Loan?                              contractor, eligible self-employed                       33 All terms in this subsection have the same
                                              (g) How do I submit an application for a                individual, sole proprietor, nonprofit                 definitions as in sections 7(a)(36) and (37) of the
                                                   Second Draw PPP Loan and what                      organization eligible for a First Draw                 Small Business Act and the Consolidated First
                                                   documentation must I provide to                    PPP Loan, veterans organization, Tribal                Draw PPP IFR, as applicable.
                                                   demonstrate eligibility?                                                                                    34 A lender must make disbursement of the loan
                                              (h) What do lenders need to know and do?
                                                                                                      business concern, housing cooperative,
                                                                                                                                                             within ten calendar days of loan approval. See
                                              (i) Will an applicant’s Second Draw PPP                 small agricultural cooperative, eligible               subsection (D)(7) of the Consolidated First Draw
                                                   Loan application be affected if there are          501(c)(6) organization or destination                  PPP IFR.



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                                              3718              Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations

                                              during the first, second, third, or fourth              taxes, may not be excluded from gross                  respect to a public broadcasting entity
                                              quarter of 2020 that demonstrate at least               receipts.                                              (as defined in section 397(11) of the
                                              a 25 percent reduction from the fourth                     (ii) Gross receipts of affiliates are               Communications Act of 1934 (47 U.S.C.
                                              quarter of 2019 (for example, an                        calculated as follows:                                 397(11))), has a trade or business that
                                              applicant that had gross receipts of                       (A) Gross receipts of a borrower with               falls under such a code; and (2) makes
                                              $50,000 in the fourth quarter of 2019                   affiliates is calculated by adding the                 a good faith certification that proceeds
                                              and had gross receipts of $30,000 in the                gross receipts of the business concern                 of the loan will be used to support
                                              fourth quarter of 2020–demonstrating a                  with the gross receipts of each affiliate.             expenses at the component of the
                                              reduction of 40 percent from the                           (B) If a borrower has acquired an                   organization that produces or distributes
                                              applicant’s gross receipts during the                   affiliate or been acquired as an affiliate             locally focused or emergency
                                              fourth quarter in 2019); or                             during 2020, gross receipts includes the               information.
                                                 (4) if the applicant was not in                      receipts of the acquired or acquiring
                                              business during 2019, but was in                        concern. This aggregation applies for the              (d) How do SBA’s affiliation rules affect
                                              operation on February 15, 2020, the                     entire period of measurement, not just                 an applicant’s eligibility for a Second
                                              applicant had gross receipts during the                 the period after the affiliation arose.                Draw PPP Loan?
                                              second, third, or fourth quarter of 2020                However, if a concern acquired a                          (1) Eligibility for Second Draw PPP
                                              that demonstrate at least a 25 percent                  segregable division of another business                Loans is governed by the same
                                              reduction from the gross receipts of the                concern during 2020, gross receipts do                 affiliations rules (and waivers) as First
                                              entity during the first quarter of 2020                 not include the receipts of the acquired               Draw PPP Loans, except as described in
                                              (for example, an applicant that had                     division prior to the acquisition.                     subsection (d)(2).
                                              gross receipts of $50,000 in the first                     (C) The gross receipts of a former                     (2) The affiliation rules under 13 CFR
                                              quarter of 2020 and had gross receipts                  affiliate are not included. This exclusion             121.301(f) are waived with respect to
                                              of $30,000 in the fourth quarter of                     of gross receipts of such former affiliate             eligibility for a Second Draw PPP Loan
                                              2020—demonstrating a reduction of 40                    applies during the entire period of                    for:
                                              percent from the applicant’s gross                      measurement, rather than only for the
                                                                                                                                                                (i) Any business concern with not
                                              receipts during the first quarter in 2020).             period after which affiliation ceased.
                                                                                                                                                             more than 300 employees that, as of the
                                                 (B) An applicant that was in operation               However, if a borrower sold a segregable
                                                                                                                                                             date on which the covered loan is
                                              in all four quarters of 2019 is deemed to               division during 2020, the gross receipts
                                                                                                                                                             disbursed, is assigned a NAICS code
                                              have experienced the revenue reduction                  will continue to include the receipts of
                                                                                                                                                             beginning with 72; and
                                              in subsection (c)(1)(iv)(A)(1) if it                    the division that was sold.
                                              experienced a reduction in annual                          (D) All terms in this subsection shall                 (ii) (A) any business concern
                                              receipts of 25 percent or greater in 2020               have the meaning attributed to them by                 (including any station which broadcasts
                                              compared to 2019 and the borrower                       the IRS.                                               pursuant to a license granted by the
                                              submits copies of its annual tax forms                     (iii) For an eligible nonprofit                     Federal Communications Commission
                                              substantiating the revenue decline.                     organization, a veterans organization, an              under title III of the Communications
                                                 (2)(i) Gross receipts includes all                   eligible nonprofit news organization, an               Act of 1934 (47 U.S.C. 301 et seq.)
                                              revenue in whatever form received or                    eligible 501(c)(6) organization, or                    without regard for whether such a
                                              accrued (in accordance with the entity’s                eligible destination marketing                         station is a concern as defined in 13
                                              accounting method) from whatever                        organization, gross receipts means gross               CFR 121.105, or any successor thereto)
                                              source, including from the sales of                     receipts within the meaning of section                 that employs not more than 300
                                              products or services, interest, dividends,              6033 of the Internal Revenue Code of                   employees, per physical location of
                                              rents, royalties, fees, or commissions,                 1986.                                                  such business concern and is majority
                                              reduced by returns and allowances.                         (iv) The amount of any forgiven First               owned or controlled by a business
                                              Generally, receipts are considered ‘‘total              Draw PPP Loan shall not be included                    concern that is assigned a NAICS code
                                              income’’ (or in the case of a sole                      toward any borrower’s gross receipts.                  beginning with 511110 or 5151; or
                                              proprietorship, independent contractor,                    (3) Any business concern that has                      (B) any nonprofit organization that is
                                              or self-employed individual ‘‘gross                     more than one physical location and                    assigned a NAICS code beginning with
                                              income’’) plus ‘‘cost of goods sold,’’ and              that employs not more than 300                         5151.
                                              excludes net capital gains or losses as                 employees per physical location is                     (e) Who is not eligible for a Second
                                              these terms are defined and reported on                 eligible to receive a Second Draw PPP                  Draw PPP Loan?
                                              IRS tax return forms. Gross receipts do                 Loan if it is assigned a NAICS code
                                              not include the following: Taxes                        beginning with 72 at the time of loan                    An applicant is not eligible for a
                                              collected for and remitted to a taxing                  disbursement and otherwise meets the                   Second Draw PPP Loan, even if it meets
                                              authority if included in gross or total                 eligibility criteria in subsection (c)(1).             the eligibility requirements of
                                              income (such as sales or other taxes                       (4) Any business concern, or any                    subsection (c) of this section, if the
                                              collected from customers and excluding                  station which broadcasts pursuant to a                 applicant is:
                                              taxes levied on the concern or its                      license granted by the Federal                           (1) Excluded from eligibility under
                                              employees); proceeds from transactions                  Communications Commission under                        the Consolidated First Draw PPP IFR; 35
                                              between a concern and its domestic or                   title III of the Communications Act of                   (2) a business concern or entity
                                              foreign affiliates; and amounts collected               1934 (47 U.S.C. 301 et seq.), that has                 primarily engaged in political activities
                                              for another by a travel agent, real estate              more than one physical location and                    or lobbying activities, as defined in
                                              agent, advertising agent, conference                    that employs not more than 300                         section 3 of the Lobbying Disclosure Act




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                                              management service provider, freight                    employees per physical location is                     of 1995 (2 U.S.C. 1602), including any
                                              forwarder or customs broker. All other                  eligible to receive a Second Draw PPP                  entity that is organized for research or
                                              items, such as subcontractor costs,                     Loan if it meets the eligibility criteria in           for engaging in advocacy in areas such
                                              reimbursements for purchases a                          subsection (c)(1) and: (1) Is majority                 as public policy or political strategy or
                                              contractor makes at a customer’s                        owned or controlled by a business
                                              request, investment income, and                         concern that is assigned a NAICS code                    35 See generally section (B)(2) of the Consolidated

                                              employee-based costs such as payroll                    beginning with 511110 or 5151 or, with                 First Draw PPP IFR.



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                                                                Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations                                            3719

                                              otherwise describes itself as a think tank              Member of Congress, shall be aggregated                   (3) The maximum amount of a Second
                                              in any public documents;                                with the securities held by his or her                 Draw PPP Loan to a borrower that is a
                                                 (3) any business concern or entity:                  spouse as determined under applicable                  seasonal employer (meaning an
                                                 (i) For which an entity created in or                common law;                                            employer that does not operate for more
                                              organized under the laws of the People’s                   (7) any issuer, the securities of which             than 7 months in any calendar year or
                                              Republic of China or the Special                        are listed on an exchange registered as                that during the preceding calendar year,
                                              Administrative Region of Hong Kong, or                  a national securities exchange under                   had gross receipts for any 6 months of
                                              that has significant operations in the                  section 6 of the Securities Exchange Act               that year that were not more than 33.33
                                              People’s Republic of China or the                       of 1934 (15 U.S.C. 78f), where the terms               percent of the gross receipts of the
                                              Special Administrative Region of Hong                   ‘‘exchange,’’ ‘‘issuer,’’ and ‘‘security’’             employer for the other 6 months of that
                                              Kong, owns or holds, directly or                        have the meanings given those terms in                 year) is calculated as the lesser of:
                                              indirectly, not less than 20 percent of                 section 3(a) of the Securities Exchange                   (i) The product obtained by
                                              the economic interest of the business                   Act of 1934 (15 U.S.C. 78c(a)) (except                 multiplying:
                                              concern or entity, including as equity                  SBA will not consider whether a news                      (A) At the election of the borrower,
                                              shares or a capital or profit interest in               organization that is eligible under                    the average total monthly payments for
                                              a limited liability company or                          subsection (c)(4) is affiliated with an                payroll costs incurred or paid by the
                                              partnership; or                                         entity, which includes any entity that                 borrower for any 12-week period
                                                 (ii) that retains, as a member of the                owns or controls such news                             between February 15, 2019 and
                                              board of directors of the business                      organization, that is an issuer);                      February 15, 2020; by
                                              concern, a person who is a resident of                     (8) an entity that has previously                      (B) 2.5 (or, only for a borrower
                                              the People’s Republic of China;                         received a Second Draw PPP Loan; or                    assigned a NAICS code beginning with
                                                 (4) any person required to submit a                     (9) an entity that has permanently                  72 at the time of disbursement as
                                              registration statement under section 2 of               closed.                                                defined in subsection (f)(10), 3.5); or
                                              the Foreign Agents Registration Act of                                                                            (ii) $2,000,000.
                                              1938 (22 U.S.C. 612);                                   (f) What is the maximum loan amount                       (4) The maximum amount of a Second
                                                 (5) any person or entity that receives               for a Second Draw PPP Loan?                            Draw PPP Loan to a borrower that did
                                              a grant for shuttered venue operators                     (1) In general, the maximum loan                     not exist during the 1-year period
                                              under section 324 of the Economic Aid                   amount for a Second Draw PPP Loan is                   preceding February 15, 2020, but was in
                                              to Hard-Hit Small Businesses,                           equal to the lesser of two and half                    operation on February 15, 2020 (‘‘new
                                              Nonprofits, and Venues Act;                             months of the borrower’s average                       entity’’), is calculated as the lesser of:
                                                 (6) any entity in which the President,                                                                         (i) The product obtained by
                                                                                                      monthly payroll costs or $2 million,
                                              the Vice President, the head of an                                                                             multiplying:
                                                                                                      except as otherwise specified in this                     (A) The quotient obtained by
                                              Executive department, or a Member of                    subsection (e). A borrower’s average                   dividing:
                                              Congress, or the spouse of such person                  monthly payroll costs may be based on                     (1) The sum of the total monthly
                                              as determined under applicable                          calendar year 2020, calendar year                      payments by the borrower for payroll
                                              common law, directly or indirectly                      2019,36 or as otherwise specified in                   costs paid or incurred by the borrower
                                              holds a controlling interest in the entity,             subsections (f)(2) through (f)(9) of this              as of the date on which the borrower
                                              where:                                                  section. ‘‘Payroll costs’’ has the same                applies for the Second Draw PPP Loan;
                                                 (i) ‘‘controlling interest’’ means                   meaning as in subsections (B)(4)(g) and                by
                                              owning, controlling, or holding not less                (B)(4)(h) of the Consolidated First Draw                  (2) the number of months in which
                                              than 20 percent, by vote or value, of the               PPP IFR and is calculated in the same                  those payroll costs were paid or
                                              outstanding amount of any class of                      manner. In calculating a borrower’s                    incurred; by
                                              equity interest in an entity;                           payroll costs, the borrower must                          (B) 2.5 (or, only for a borrower
                                                 (ii) ‘‘equity interest’’ means:                      subtract any compensation paid to an                   assigned a NAICS code beginning with
                                                 (A) A share in an entity, without                    employee in excess of $100,000 on an                   72 at the time of disbursement as
                                              regard to whether the share is                          annualized basis, as prorated for the                  defined in subsection (f)(10), 3.5); or
                                              transferable or classified as stock or                  time period during which the payments                     (ii) $2,000,000.
                                              anything similar;                                       are made or the obligation to make the                    (5) The maximum amount of a Second
                                                 (B) a capital or profit interest in a                payments is incurred.                                  Draw PPP Loan made to a borrower
                                              limited liability company or                              (2) Except as otherwise provided in                  assigned a NAICS code beginning with
                                              partnership; or                                         subsection (f)(3) through (f)(7), the                  72 at the time of disbursement as
                                                 (C) a warrant or right, other than a                 maximum amount of a Second Draw                        defined in subsection (f)(10) (that is not
                                              right to convert, to purchase, sell, or                 PPP Loan is calculated as the lesser of:               a seasonal employer or new entity
                                              subscribe to a share or interest described                (i) The product obtained by                          addressed in subsection (f)(3) or (f)(4) or
                                              in (A) or (B), respectively;                            multiplying:                                           a borrower with self-employment
                                                 (iii) ‘‘Executive department’’ has the                 (A) The average total monthly                        income or a partnership addressed in
                                              meaning given the term in section 101                   payment for payroll costs incurred or                  subsection (f)(7) or (f)(8) of this section)
                                              of title 5, United States Code;                         paid by the borrower during 2019 or                    is calculated as the lesser of:
                                                 (iv) ‘‘Member of Congress’’ means a                  2020 (at the election of the borrower); by                (i) The product obtained by
                                              Member of the Senate or House of                          (B) 2.5; or                                          multiplying:
                                              Representatives, a Delegate to the House                  (ii) $2,000,000.                                        (A) The average total monthly
                                              of Representatives, and the Resident




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                                                                                                                                                             payment for payroll costs incurred or
                                              Commissioner from Puerto Rico; and                        36 Second Draw PPP Loan borrowers who are not        paid by the borrower during either 2019
                                                 (v) For the purpose of determining                   self-employed, sole proprietorships, or independent    or 2020 (at the borrower’s election) by
                                              whether a person has a controlling                      contractors are also permitted to use the precise 1-      (B) 3.5; or
                                              interest in the entity, the securities                  year period before the date on which the loan is          (ii) $2,000,000.
                                                                                                      made to calculate payroll costs if they choose not
                                              owned, controlled, or held by the                       to use 2019 or 2020. Since most borrowers will use
                                                                                                                                                                (6) (i) The maximum amount of a
                                              President, the Vice President, the head                 2019 or 2020 the rule text refers only to 2019 or      Second Draw PPP Loan to a farmer or
                                              of an Executive department, or a                        2020 for simplicity and readability.                   rancher that:


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                                              3720              Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations

                                                 (A) Operates as a sole proprietorship                the average total monthly payment for                     (2) At the time an applicant submits
                                              or as an independent contractor, or is an               employee payroll costs incurred or paid                its loan application form, it must submit
                                              eligible self-employed individual;                      by the borrower during the same year                   the following unless the documentation
                                                 (B) reports farm income or expenses                  elected by the borrower; by                            was submitted to the lender for the First
                                              on a Schedule F (IRS Form 1040); and                      (2) 2.5 (or, only for a borrower                     Draw PPP Loan (i.e., the applicant used
                                                 (C) was in business as of February 15,               assigned a NAICS code beginning with                   calendar year 2019 figures to determine
                                              2020; is calculated according to (ii) or                72 at the time of disbursement as                      both its First Draw PPP Loan amount
                                              (iii) of this subsection(e)(6), depending               defined in subsection (f)(10), 3.5); or                and its Second Draw PPP Loan amount,
                                              on whether the borrower has employees.                    (B) $2,000,000.                                      and the lender for the applicant’s
                                                 (ii) If a borrower meeting the criteria                (8) The maximum amount of a Second                   Second Draw PPP Loan is the same as
                                              in subsection (6)(i) of this section does               Draw PPP Loan to a borrower that files                 the lender that made the applicant’s
                                              not have any employees, the maximum                     taxes as a partnership is calculated as                First Draw PPP Loan):
                                              loan amount is the product obtained by                  the lesser of:                                            (i) If the applicant is not self-
                                              multiplying:                                              (i) The product obtained by                          employed, the applicant’s Form 941 (or
                                                 (A) The gross income of the borrower                 multiplying:                                           other tax forms containing similar
                                              in 2019 or 2020, as reported on a                         (A) The sum of (1) net earnings from                 information) and state quarterly wage
                                              Schedule F (IRS Form 1040), that is not                 self-employment of individual general                  unemployment insurance tax reporting
                                              more than $100,000, divided by 12; and                  partners in 2019 or 2020 (at the election              forms from each quarter in 2019 or 2020
                                                 (B) 2.5.                                             of the borrower), as reported on IRS                   (whichever was used to calculate
                                                 (iii) If a borrower meeting the criteria             Form 1065 K–1, reduced by section 179                  payroll), as applicable, or equivalent
                                              in subsection (6)(i) of this section has                expense deduction claimed,                             payroll processor records, along with
                                              employees, the maximum loan amount                      unreimbursed partnership expenses                      evidence of any retirement and
                                              is calculated as the lesser of:                         claimed, and depletion claimed on oil                  employee group health, life, disability,
                                                 (A) The product obtained by                          and gas properties, multiplied by                      vision and dental insurance
                                              multiplying:                                            0.9235,37 that is not more than                        contributions, must be provided. A
                                                 (1) The sum of (i) the difference                    $100,000, divided by 12; (2) the average               partnership must also include its IRS
                                              between gross income and employee                       total monthly payment for employee                     Form 1065 K–1s.
                                              payroll costs of the borrower in 2019 or                payroll costs incurred or paid by the                     (ii) If the applicant is self-employed
                                              2020 (at the election of the borrower), as              borrower during the same year elected                  and has employees, the applicant’s 2019
                                              reported on a Schedule F (IRS Form                      by the borrower; by                                    or 2020 (whichever was used to
                                              1040), that is not more than $100,000,                    (B) 2.5 (or, only for a borrower                     calculate loan amount) IRS Form 1040
                                              divided by 12, and (ii) the average total               assigned a NAICS code beginning with                   Schedule C, Form 941 (or other tax
                                              monthly payment for employee payroll                    72 as defined in subsection (f)(10) at the             forms or equivalent payroll processor
                                              costs incurred or paid by the borrower                  time of disbursal, 3.5); or                            records containing similar information)
                                              during the same year elected by the                       (ii) $2,000,000.                                     and state quarterly wage unemployment
                                              borrower; by                                              (9) Businesses that are part of a single             insurance tax reporting forms from each
                                                 (2) 2.5; or                                          corporate group shall in no event                      quarter in 2019 or 2020 (whichever was
                                                 (B) $2,000,000.                                      receive more than $4,000,000 of Second                 used to calculate loan amount), as
                                                 (7) The maximum amount of a Second                   Draw PPP Loans in the aggregate.                       applicable, or equivalent payroll
                                              Draw PPP Loan to a borrower that has                    Corporate group has the same meaning                   processor records, along with evidence
                                              income from self-employment and files                   as in subsection (B)(4)(f) of the                      of any retirement and employee group
                                              a Form 1040, Schedule C, is calculated                  Consolidated First Draw PPP IFR.                       health, life, disability, vision and dental
                                              as follows, depending on whether the                      (10) For purposes of calculating a                   insurance contributions, if applicable,
                                              borrower has employees:                                 borrower’s maximum payroll costs, a                    must be provided. A payroll statement
                                                 (i) For a borrower that has income                   borrower may multiply its average                      or similar documentation from the pay
                                              from self-employment and does not                       monthly payroll costs by 3.5 only if the               period that covered February 15, 2020
                                              have any employees, the maximum loan                    borrower is in the Accommodation and                   must be provided to establish the
                                              amount is the lesser of:                                Food Services sector and has reported a                applicant was in operation on February
                                                 (A) The product obtained by                          NAICS code beginning with 72 as its                    15, 2020.
                                              multiplying:                                            business activity code on its most recent                 (iii) If the applicant is self-employed
                                                 (1) The net profit of the borrower in                IRS income tax return.                                 and does not have employees, the
                                              2019 or 2020, as reported on IRS Form                                                                          applicant must provide (a) its 2019 or
                                                                                                      (g) How do I submit an application for                 2020 (whichever was used to calculate
                                              1040 Schedule C, that is not more than
                                                                                                      a Second Draw PPP Loan and what                        loan amount) Form 1040 Schedule C, (b)
                                              $100,000, divided by 12; and
                                                 (2) 2.5 (or, only for a borrower                     documentation must I provide to                        a 2019 or 2020 (whichever was used to
                                              assigned a NAICS code beginning with                    demonstrate eligibility?                               calculate loan amount) IRS Form 1099–
                                              72 as defined in subsection (f)(10) at the                 (1) The applicant must submit to the                MISC detailing nonemployee
                                              time of disbursement, 3.5).                             lender SBA Form 2483–SD (Paycheck                      compensation received (box 7), invoice,
                                                 (ii) For a borrower that has income                  Protection Program Second Draw                         bank statement, or book of record that
                                              from self-employment and has                            Borrower Application Form) or the                      establishes that the applicant is self-
                                              employees, the maximum loan amount                      lender’s equivalent form including the                 employed; and (c) a 2020 invoice, bank
                                              is the lesser of:                                       required certifications and the                        statement, or book of record to establish




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                                                 (A) The product obtained by                          documentation in subsection (g)(2).                    that the applicant was in operation on
                                              multiplying:                                                                                                   or around February 15, 2020.
                                                 (1) The sum of (i) the net profit of the               37 This treatment follows the computation of self-      (iv) For loans with a principal amount
                                              borrower in 2019 or 2020 (at the                        employment tax from IRS Form 1040 Schedule SE          greater than $150,000, documentation
                                                                                                      Section A line 4 and removes the ‘‘employer’’ share
                                              election of the borrower), as reported on               of self-employment tax, consistent with how payroll
                                                                                                                                                             sufficient to establish that the applicant
                                              IRS Form 1040 Schedule C, that is not                   costs for employees in the partnership are             experienced a reduction in revenue, as
                                              more than $100,000, divided by 12; (ii)                 determined.                                            provided in subsection(c)(1)(iv), must be


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                                                                 Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations                                          3721

                                              provided at the time of application,                     in the People’s Republic of China or the              $150,000 or less where the borrower
                                              which may include relevant tax forms,                    Special Administrative Region of Hong                 provides documentation of revenue
                                              including annual tax forms, or, if                       Kong, owns or holds, directly or                      reduction, confirm the dollar amount
                                              relevant tax forms are not available, a                  indirectly, not less than 20 percent of               and percentage of the borrower’s
                                              copy of the applicant’s quarterly income                 the economic interest of the business                 revenue reduction by performing a good
                                              statements or bank statements.                           concern or entity, including as equity                faith review, in a reasonable time, of the
                                                 (v) For loans with a principal amount                 shares or a capital or profit interest in             borrower’s calculations and supporting
                                              of $150,000 or less, the applicant must                  a limited liability company or                        documents concerning the borrower’s
                                              submit documentation sufficient to                       partnership; or (b) that retains, as a                revenue reduction. For a loan of
                                              establish that the applicant experienced                 member of the board of directors of the               $150,000 or less where the borrower
                                              a reduction in revenue as provided in                    business concern, a person who is a                   does not provide documentation of
                                              subsection (c)(1)(i) of this section at the              resident of the People’s Republic of                  revenue reduction with its application,
                                              time of application, on or before the                    China.                                                the lender shall perform this review
                                              date the borrower submits an                                (D) The Applicant is not required to               when the borrower provides such
                                              application for loan forgiveness, or, if                 submit a registration statement under                 documentation. If the lender identifies
                                              the borrower does not apply for loan                     section 2 of the Foreign Agents                       errors in the borrower’s calculation or
                                              forgiveness, at SBA’s request. Such                      Registration Act of 1938 (22 U.S.C. 612).             material lack of substantiation in the
                                              documentation may include relevant tax                      (E) The Applicant is not a business                borrower’s supporting documents, the
                                              forms, including annual tax forms, or, if                concern or entity primarily engaged in                lender should work with the borrower
                                              relevant tax forms are not available, a                  political or lobbying activities,                     to remedy the issue.
                                              copy of the applicant’s quarterly income                 including any entity that is organized                   (E) Follow applicable BSA
                                              statements or bank statements.                           for research or for engaging in advocacy              requirements (listed in subsection
                                                 (3) On the Second Draw PPP Loan                       in areas such as public policy or                     (C)(3)(d) of the Consolidated First Draw
                                              borrower application, an authorized                      political strategy or otherwise describes             PPP IFR); and
                                              representative of the applicant 38 must                  itself as a think tank in any public
                                              make the certifications listed in                        documents.                                               (ii) Each lender’s underwriting
                                              subsection (B)(12) of the Consolidated                      (4) A lender must submit SBA Form                  obligation under the Second Draw PPP
                                              First Draw PPP IFR, except:                              2484–SD (Paycheck Protection Program                  is limited to the items above and
                                                 (i) Instead of the certification in                   Lender’s Application—Second Draw                      reviewing the ‘‘Paycheck Protection
                                              subsection (B)(12)(v) of the                             Loan Guaranty) electronically in                      Program Second Draw Borrower
                                              Consolidated First Draw PPP IFR, the                     accordance with program requirements                  Application Form’’ (SBA Form 2483–
                                              applicant must certify that the applicant                and maintain the forms and supporting                 SD) or lender’s equivalent form.
                                              has not and will not receive another                     documentation in its files.                              (iii) A lender may rely on any
                                              Second Draw Paycheck Protection                          (h) What do lenders need to know and                  certification or documentation
                                              Program Loan; and                                        do?                                                   submitted by an applicant for a PPP
                                                 (ii) an authorized representative of the                                                                    loan or an eligible recipient or eligible
                                              applicant must also certify:                                (1) A lender approved to make First                entity that (A) is submitted pursuant to
                                                 (A) The Applicant has realized a                      Draw PPP Loans may make Second                        all applicable statutory requirements,
                                              reduction in gross receipts in excess of                 Draw PPP Loans under the same terms                   regulations, and guidance related to a
                                              25% relative to the relevant comparison                  and conditions applicable to First Draw               PPP loan, including under sections
                                              time period. For loans greater than                      PPP Loans, including all requirements                 7(a)(36) or (37) of the Small Business
                                              $150,000, Applicant has provided                         under sections (C) and (D) of the                     Act (15 U.S.C. 636(a)(36) and (37)); and
                                              documentation to the lender                              Consolidated First Draw PPP IFR,                      (B) attests that the applicant, eligible
                                              substantiating the decline in gross                      except as otherwise provided in this                  recipient, or eligible entity, as
                                              receipts. For loans of $150,000 or less,                 section.                                              applicable, has accurately provided the
                                              Applicant will provide documentation                        (2) What do lenders have to do in                  certification or documentation to the
                                              substantiating the decline in gross                      terms of loan underwriting?                           lender in accordance with the statutory
                                              receipts upon or before seeking loan                        (i) Each lender shall:                             requirements, regulations, and guidance
                                              forgiveness for the Second Draw                             (A) Confirm receipt of borrower
                                                                                                                                                             related to PPP loans. With respect to a
                                              Paycheck Protection Program Loan or                      certifications contained in Paycheck
                                                                                                                                                             lender that relies on such a certification
                                              upon SBA request.                                        Protection Program Second Draw
                                                                                                                                                             or documentation related to a Second
                                                 (B) The Applicant received a First                    Borrower Application Form (SBA Form
                                                                                                                                                             Draw PPP Loan, an enforcement action
                                              Draw Paycheck Protection Program                         2483–SD) or lender’s equivalent;
                                                                                                          (B) Confirm receipt of information                 may not be taken against the lender, and
                                              Loan and, before the Second Draw                                                                               the lender shall not be subject to any
                                              Paycheck Protection Program Loan is                      demonstrating that a borrower was
                                                                                                       either an eligible self-employed                      penalties relating to loan origination or
                                              disbursed, will have used the full loan                                                                        forgiveness of the Second Draw PPP
                                              amount (including any increase) of the                   individual, independent contractor, or
                                                                                                       sole proprietorship with no employees                 Loan, if—(A) the lender acts in good
                                              First Draw Paycheck Protection Program                                                                         faith relating to loan origination or
                                              Loan only for eligible expenses.                         or had employees for whom the
                                                                                                       borrower paid salaries and payroll taxes              forgiveness of the Second Draw PPP
                                                 (C) The Applicant is not a business                                                                         Loan based on that reliance; and (B) all
                                              concern or entity (a) for which an entity                on or around February 15, 2020;
                                                                                                          (C) Confirm the dollar amount of                   other relevant Federal, State, local, and




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                                              created in or organized under the laws                                                                         other statutory and regulatory
                                              of the People’s Republic of China or the                 average monthly payroll costs for 2019
                                                                                                       or 2020 (whichever was used to                        requirements applicable to the lender
                                              Special Administrative Region of Hong                                                                          are satisfied with respect to the Second
                                              Kong, or that has significant operations                 calculate loan amount) by reviewing the
                                                                                                       payroll documentation submitted with                  Draw PPP Loan.
                                                38 A representative of the applicant can certify for   the borrower’s application;                              (3) SBA will pay lenders fees for
                                              the business as a whole if the representative is            (D) For a Second Draw PPP Loan                     processing Second Draw PPP Loans in
                                              legally authorized to do so.                             greater than $150,000 or a loan of                    the following amounts:


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                                              3722              Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations

                                                 (i) for a Second Draw PPP Loan of up                 found at https://www.sba.gov/tools/                    in the public interest to provide a
                                              to (and including) $50,000, in an                       local-assistance/districtoffices.                      delayed effective date. An immediate
                                              amount equal to the lesser of:                                                                                 effective date will give small businesses
                                                                                                      Compliance With Executive Orders
                                                 (A) 50 percent of the balance of the                                                                        the maximum amount of time to apply
                                                                                                      12866, 12988, 13132, 13563, and 13771,
                                              financing outstanding at the time of                                                                           for loans and lenders the maximum
                                                                                                      the Paperwork Reduction Act (44 U.S.C.
                                              disbursement of the loan; or                                                                                   amount of time to process applications
                                                 (B) $2,500; and                                      Ch. 35), and the Regulatory Flexibility
                                                                                                                                                             before the program ends.
                                                 (ii) for a Second Draw PPP Loan of                   Act (5 U.S.C. 601–612)
                                              more than $50,000, in an amount that is:                                                                       Executive Order 12988
                                                                                                      Executive Orders 12866, 13563, and
                                                 (A) 5 percent of the balance of the                  13771                                                    SBA has drafted this rule, to the
                                              financing outstanding at the time of                                                                           extent practicable, in accordance with
                                              disbursement of the loan for a loan up                     This interim final rule is                          the standards set forth in section 3(a)
                                              to (and including) $350,000; and                        economically significant for the                       and 3(b)(2) of Executive Order 12988, to
                                                 (B) 3 percent of the balance of the                  purposes of Executive Orders 12866 and                 minimize litigation, eliminate
                                              financing outstanding at the time of                    13563, and the Office of Management                    ambiguity, and reduce burden. The rule
                                              disbursement of the loan for a loan                     and Budget’s Office of Information and                 has no preemptive or retroactive effect.
                                              above $350,000.                                         Regulatory Affairs (OIRA) had
                                                                                                      determined that this is a major rule                   Executive Order 13132
                                              (i) Will an applicant’s Second Draw PPP                 under the Congressional Review Act (5                    SBA has determined that this rule
                                              Loan application be affected if there are               U.S.C. 804(2)). SBA, however, is                       will not have substantial direct effects
                                              unresolved issues regarding the                         proceeding under the emergency                         on the States, on the relationship
                                              applicant’s First Draw PPP Loan?                        provision at Executive Order 12866                     between the National Government and
                                                 (1) If a First Draw PPP Loan is under                section 6(a)(3)(D) based on the need to                the States, or on the distribution of
                                              review pursuant to PPP rules and/or                     move expeditiously to mitigate the                     power and responsibilities among the
                                              information in SBA’s possession                         current economic conditions arising                    various layers of government. Therefore,
                                              indicates that the borrower may have                    from the COVID–19 emergency. This                      SBA has determined that this rule has
                                              been ineligible for the First Draw PPP                  rule’s designation under Executive                     no federalism implications warranting
                                              Loan it received or for the loan amount                 Order 13771 will be informed by public                 preparation of a federalism assessment.
                                              received by the borrower, the lender                    comment.
                                                                                                         This rule is necessary to implement                 Paperwork Reduction Act, 44 U.S.C.
                                              will receive notification from SBA when
                                                                                                      the Economic Aid Act in order to                       Chapter 35
                                              the lender submits an application for
                                              guaranty of a Second Draw PPP Loan                      provide economic relief to small                         SBA has determined that this rule
                                              (‘‘unresolved borrower’’).                              businesses nationwide adversely                        will impose new recordkeeping or
                                                 (2) If the lender receives notification              impacted under the COVID–19                            reporting requirements under the
                                              that the Applicant for a Second Draw                    Emergency Declaration. We anticipate                   Paperwork Reduction Act (‘‘PRA’’). This
                                              PPP Loan is an unresolved borrower, the                 that this rule will result in substantial              information collection (IC) consists of
                                              lender will not receive an SBA loan                     benefits to small businesses, their                    SBA Form 2483–SD (Paycheck
                                              number. SBA will resolve the issue                      employees, and the communities they                    Protection Program Second Draw
                                              related to the unresolved borrower                      serve. However, we lack data to estimate               Application Form) and SBA Form 2484–
                                              expeditiously and will notify the lender                the effects of this rule.                              SD (Paycheck Protection Program
                                              of the process to obtain an SBA loan                       The Administrator of OIRA has                       Lender’s Application—Second Draw
                                              number for the Second Draw PPP Loan,                    determined that this is a major rule for               Loan Guaranty. SBA has requested
                                              if appropriate.                                         purposes of the Congressional Review                   emergency approval for the IC required
                                                                                                      Act (5 U.S.C. 801 et seq.) (CRA). Under                to implement the Second Draw PPP
                                              (j) Are Second Draw PPP Loans eligible                  section 801(3) of the CRA, a major rule                Program described above.
                                              for loan forgiveness?                                   takes effect 60 days after the rule is
                                                                                                      published in the Federal Register.                     Regulatory Flexibility Act (RFA)
                                                 Second Draw PPP Loans are eligible
                                              for loan forgiveness on the same terms                     Notwithstanding this requirement,                      The Regulatory Flexibility Act (RFA)
                                              and conditions as First Draw PPP Loans,                 section 808(2) of the CRA allows                       generally requires that when an agency
                                              except that Second Draw PPP Loan                        agencies to dispense with the                          issues a proposed rule, or a final rule
                                              borrowers with a principal amount of                    requirements of section 801 when the                   pursuant to section 553(b) of the APA or
                                              $150,000 or less are required to provide                agency for good cause finds that such                  another law, the agency must prepare a
                                              documentation of revenue reduction if                   procedure would be impracticable,                      regulatory flexibility analysis that meets
                                              such documentation was not provided                     unnecessary, or contrary to the public                 the requirements of the RFA and
                                              at the time of the loan application as                  interest and the rule shall take effect at             publish such analysis in the Federal
                                              specified in subsections (g)(2)(iv) and                 such time as the agency promulgating                   Register. 5 U.S.C. 603, 604. Specifically,
                                              (v) of this section.                                    the rule determines. Pursuant to section               the RFA normally requires agencies to
                                                                                                      808(2) of the CRA, SBA finds, for good                 describe the impact of a rulemaking on
                                              V. Additional Information                               cause, that a 60-day delay in the                      small entities by providing a regulatory
                                                SBA may provide further guidance, if                  effective date is unnecessary and                      impact analysis. Such analysis must
                                              needed, through SBA notices and a                       contrary to the public interest.                       address the consideration of regulatory
                                              program guide which will be posted on                      As discussed elsewhere in this                      options that would lessen the economic




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                                              SBA’s website at www.sba.gov.                           interim final rule, the last day to apply              effect of the rule on small entities. The
                                                Questions on the Paycheck Protection                  for and receive a PPP loan is March 31,                RFA defines a ‘‘small entity’’ as (1) a
                                              Program 7(a) Loans (First Draw PPP                      2021. Given the short duration of this                 proprietary firm meeting the size
                                              Loans and Second Draw PPP Loans)                        program, and the urgent need to issue                  standards of the Small Business
                                              may be directed to the Lender Relations                 loans quickly, the Administrator in                    Administration (SBA); (2) a nonprofit
                                              Specialist in the local SBA Field Office.               consultation with the Secretary has                    organization that is not dominant in its
                                              The local SBA Field Office may be                       determined that it is impractical and not              field; or (3) a small government


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                                                                Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations                                                3723

                                              jurisdiction with a population of less                  regulatory flexibility analysis in                     unnecessary, or contrary to the public
                                              than 50,000. 5 U.S.C. 601(3)–(6). Except                accordance with the RFA’s waiver                       interest. Small Business
                                              for small government jurisdictions with                 provision, and no other RFA exception                  Administration’s Office of Advocacy
                                              a population of less than 50,000, neither               applies, the agency must prepare the                   guide: How to Comply with the
                                              State nor local governments are ‘‘small                 regulatory flexibility analysis and                    Regulatory Flexibility Ac. Ch.1. p.9.
                                              entities.’’                                             publish it in the Federal Register at the              Since this rule is exempt from notice
                                                 The requirement to conduct a                         time of promulgation or, if the rule is                and comment, SBA is not required to
                                              regulatory impact analysis does not                     promulgated in response to an                          conduct a regulatory flexibility analysis.
                                              apply if the head of the agency ‘‘certifies             emergency that makes timely                              Authority: 15 U.S.C. 636(a)(36);
                                              that the rule will not, if promulgated,                 compliance impracticable, within 180                   Coronavirus Aid, Relief, and Economic
                                              have a significant economic impact on                   days of publication of the final rule. 5               Security Act, Pub. L. 116–136, section 1114;
                                              a substantial number of small entities.’’               U.S.C. 604(a), 608(b).                                 and Economic Aid to Hard-Hit Small
                                              5 U.S.C. 605(b). The agency must,                         Rules that are exempt from notice and                Businesses, Nonprofits, and Venues Act, Pub.
                                              however, publish the certification in the               comment are also exempt from the RFA                   L. 116–260, section 303.
                                              Federal Register at the time of                         requirements, including conducting a
                                              publication of the rule, ‘‘along with a                 regulatory flexibility analysis, when                  Jovita Carranza,
                                              statement providing the factual basis for               among other things the agency for good                 Administrator.
                                              such certification.’’ If the agency head                cause finds that notice and public                     [FR Doc. 2021–00452 Filed 1–12–21; 4:15 pm]
                                              has not waived the requirements for a                   procedure are impracticable,                           BILLING CODE 8026–03–P




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