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SBA OIG 20 14 Flash Report SBA S Implementation Of The Paycheck Protection Program Requirement

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     S B A   I N S P E C T O R     G E N E R A L




              FLASH REPORT
     SMALL BUSINESS ADMINISTRATION’S
IMPLEMENTATION OF THE PAYCHECK PROTECTION
         PROGRAM REQUIREMENTS

                     May 8, 2020
                         EXECUTIVE SUMMARY                                                  Report
                                                                                            No. 20-14
                          SMALL BUSINESS ADMINISTRATION’S
                                                                                            May 8,
                          IMPLEMENTATION OF THE PAYCHECK PROTECTION                         2020

                          PROGRAM REQUIREMENTS

Why We Did This                                        published in SBA’s Interim Final Rules and FAQs
                                                       issued as of April 30, 2020. We also assessed the
On April 24, 2020, the Office of Inspector General     PPP borrower application and additional public
(OIG) initiated its planned review of the Small        documents issued by SBA and the U.S. Department
Business Administration’s (SBA’s) implementation       of the Treasury.
of the Paycheck Protection Program (PPP). Based
on this ongoing work, we produced a flash report       What We Found
to meet the information needs of Senators
Schumer, Cardin, and Brown. We analyzed key            We found that SBA’s Interim Final Rules for
provisions of Section 1102 of the Coronavirus Aid,     implementing the PPP and SBA’s FAQs mostly
Relief, and Economic Security (CARES) Act, which       aligned with the Act. We identified the following
was signed into law by the President on March 27,      areas, however, that did not fully align with the
2020, to provide economic relief to our Nation, and    Act’s provisions:
SBA’s Interim Final Rules and public guidance
intended to further inform stakeholders of SBA’s           •   Prioritizing Underserved and Rural
implementation of the PPP. Section1102, created                Markets
the PPP under section 7(a) of the Small Business           •   Loan Proceeds Eligible for Forgiveness
Act, and the PPP provided for $349 billion in fully        •   Guidance on Loan Deferments
guaranteed SBA loans, which can be forgiven if             •   Registration of Loans
used in accordance with the Act.

SBA launched the program on April 3, 2020, and         Suggested Actions for SBA
just 14 days later, by April 16, PPP lenders
approved more than 1,661,000 loans totaling            To better align PPP requirements with the
nearly $342.3 billion. On April 24, 2020, the          provisions of the CARES Act, we suggest SBA:
President signed the Paycheck Protection Program
and Health Care Enhancement Act to provide an              •   Issue guidance to lenders requiring the
additional $310 billion to the PPP. SBA initiated              lenders to prioritize borrowers in
this cycle of additional funding on April 27, 2020.            underserved markets and revise the
As of May 6, PPP lenders approved an additional                borrower application to include collection
2,441,369 loans, totaling about $183.5 billion. The            of optional demographic information for
Paycheck Protection Program and Health Care                    the principals for the remaining available
Enhancement Act set aside portions of the                      lending authority and any future lending
additional funding for smaller lenders, but there              under the program.
were no other significant differences regarding            •   For loans that are already disbursed,
requirements for the PPP than in the CARES Act.                include optional demographic information
                                                               on forms used to request loan forgiveness.
The Senators also asked that by May 8, 2020, we            •   Evaluate the potential negative impact to
provide recommendations on SBA’s current rules,                borrowers regarding the specified
regulations, policies, and procedures to ensure                percentage of loan proceeds eligible for
small businesses get the money they need and are               forgiveness and update the requirements,
treated fairly by PPP lenders.                                 as deemed necessary.
                                                           •   Issue guidance to lenders on the
What We Reviewed                                               deferment process for PPP loans.
                                                           •   Register PPP loans by Taxpayer
                                                               Identification Number.
To conduct our comparative analysis, we reviewed
and assessed the regulations for the PPP and for the
Paycheck Protection Program and Health Care
Enhancement Act, in addition to guidance
                       Office of Inspector General
                       U.S. Small Business Administration


DATE:          May 8, 2020

TO:            Jovita Carranza
               Administrator

FROM:          Hannibal “Mike” Ware
               Inspector General

SUBJECT:       Small Business Administration’s Implementation of the Paycheck Protection
               Program Requirements

On April 24, 2020, the Office of Inspector General (OIG) initiated its planned review of the Small
Business Administration’s (SBA’s) implementation of the Paycheck Protection Program (PPP).
Based on this ongoing work, we produced a flash report to meet the information needs of Senators
Schumer, Cardin, and Brown. We analyzed key provisions of the legislation, in addition to SBA’s
Interim Final Rules and public guidance intended to further inform stakeholders of SBA’s
implementation of the PPP. The Senators also asked that by May 8, 2020, we provide
recommendations on SBA’s current rules, regulations, policies, and procedures to ensure small
businesses get the money they need and are treated fairly by any PPP lender. This report presents
the results of our analysis of key provisions of Section 1102 of the CARES Act and SBA’s Interim
Final Rules and public guidance intended to further inform stakeholders of SBA’s implementation of
the Paycheck Protection Program.

Background
The President signed the Coronavirus Aid, Relief, and Economic Security (CARES) Act into law on
March 27, 2020, to provide economic relief to our Nation. One of the Act’s largest provisions,
Section 1102, created the PPP under section 7(a) of the Small Business Act. This program provides
$349 billion in fully guaranteed SBA loans—which can be forgiven if used in accordance with the
Act—for certain eligible small businesses, individuals and non-profit organizations to cover payroll,
rent, utility payments, and other limited uses. Between March 27 and April 30, 2020, SBA published
seven Interim Final Rules and issued further guidance in 39 FAQs.

SBA was tasked with expediting the implementation of this unprecedented program to mitigate the
economic impact of social distancing efforts put forth to curb the infection rate of the COVID-19
outbreak. SBA launched the program on April 3, 2020, only 1 week after the Act was passed.
Demand for the program was extraordinary: by April 16, just 14 days after SBA launched the
program, PPP lenders approved more than 1,661,000 loans totaling nearly $342.3 billion.
Table 1 provides more specific loan information.

             Table 1: Summary of Paycheck Protection Program Loans From Round 1
                        (Data as of 12:00 p.m., Thursday, April 16, 2020)

              Loan Count                     Net Approved Dollars              Lender Count

              1,661,367                            $342,277,999,103                   4,975

            Source: SBA PPP website.

On April 24, 2020, the President signed the Paycheck Protection Program and Health Care
Enhancement Act to provide an additional $310 billion to the PPP. SBA initiated this cycle of
additional funding on April 27. As of May 6, PPP lenders approved an additional 2,441,369 loans
totaling more than $183.5 billion. Table 2 provides more specific loan information.

                    Table 2: Summary of Paycheck Protection Program Round 2
                          (Data as of 5:00 p.m., Wednesday, May 6, 2020) 1

               Lender Size                          Approved Loans           Total Amount

               >$50 B in Assets                               1,147,890     $97,324,262,313
               $10 B to $50 B in Assets                         347,368     $28,032,705,351
               <$10 B in Assets                                 946,111     $58,168,884,165

               Total                                          2,441,369   $183,525,851,829


Before the PPP, SBA’s largest single year in 7(a) lending volume was approximately $25.4 billion, in
fiscal year 2017. Between April 3 and May 6, 2020, SBA lenders participating in the PPP approved
4,102,736 loans totaling more than $525.8 billion, an amount representing more than 20 times the
largest year in SBA’s history in just 33 days.

Paycheck Protection Program Statutory Authority, Formal Guidance, and
Other Guidance
Statutory Authority
The PPP provides guaranteed loans to assist certain businesses, individuals, and organizations with
getting back to work and outlines provisions for lending and forgiveness of these loans. The
Paycheck Protection Program and Healthcare Enhancement Act on April 24, 2020, provided
additional funding to the PPP. The Enhancement Act also included a set aside for insured
depository institutions, credit unions, and community financial institutions.

Formal Guidance
SBA also issued Interim Final Rules for the execution of these provisions consistent with the CARES
Act. As of April 30, 2020, SBA issued seven Interim Final Rules. Appendix I includes the Interim
Final Rules issued as of April 30, 2020.


1 The information was retrieved from SBA’s PPP Website.



                                                          3
Other Guidance
Additional guidance for the PPP is contained in FAQs and specific loan program forms. As of April
30, 2020, SBA responded to 39 FAQs that addressed various aspects of program implementation.
These areas primarily related to program eligibility, loan size calculations, and loan sales on the
secondary market.

Appendix II provides a detailed comparison of the CARES Act requirements, the Interim Final Rules,
and the 39 FAQs.

Scope
The scope of our review included an assessment of the following:

   •   Statutory authority for the PPP (Section 1102 of the CARES Act)
   •   Statutory authority for the Paycheck Protection Program and Health Care Enhancement Act
   •   Regulations published in SBA’s seven Interim Final Rules issued as of April 30, 2020
   •   SBA’s guidance published as 39 FAQs issued as of April 30, 2020
   •   SBA’s PPP Borrower Application
   •   Additional public documents issued by SBA and the U.S. Department of the Treasury

Results
We found that SBA’s formal guidance, issued as its seven Interim Final Rules, for implementing the
PPP and its FAQs mostly aligned with the Act. We identified the following areas, however, that did
not fully align with the Act’s provisions:

   •   Prioritizing Underserved and Rural Markets
   •   Loan Proceeds Eligible for Forgiveness
   •   Guidance on Loan Deferments
   •   Registration of Loans

Prioritizing Underserved and Rural Markets

We did not find any evidence that SBA issued guidance to lenders to prioritize the markets
indicated by the Act. Further, SBA did not include the optional standard demographic information
for principals on its PPP loan application. Section 1102 of the CARES Act states that the
Administrator should issue guidance to lenders and agents to ensure that the processing and
disbursement of covered loans prioritizes small business concerns and entities in underserved and
rural markets, including veterans and members of the military community, small business concerns
owned and controlled by socially and economically disadvantaged individuals (as defined in section
15 U.S.C. 637(d)(3)(C)), women, and businesses in operation for under 2 years.

Because SBA did not provide guidance to lenders about prioritizing borrowers in underserved and
rural markets, these borrowers, including rural, minority and women-owned businesses may not
have received the loans as intended. In addition, because SBA did not require demographic data to
identify PPP borrowers in underserved markets, it is unlikely that SBA will be able to determine the
loan volume to the intended prioritized markets.



                                                  4
Loan Proceeds Eligible for Forgiveness

We found the formal guidance in SBA’s Interim Final Rule did not align with the allowable use
requirements for PPP loans. The CARES Act details the allowable uses for PPP loans, including
payroll costs, payments of interest on any mortgage obligation (which shall not include any
prepayment of or payment of principal on a mortgage obligation), rent (including rent under a lease
agreement), utilities, and interest on any other debt obligations incurred before the covered period.
While the Act did not create any restrictions on the portion of the loan that needed to be used for
payroll, SBA added a requirement in its Interim Final Rule, that at least 75 percent of the loan
proceeds must be used for payroll. SBA, in coordination with the Secretary of the Treasury,
provided the following explanation:

       While the Act provides that borrowers are eligible for forgiveness in an amount
       equal to the sum of payroll costs and any payments of mortgage interest, rent, and
       utilities, the Administrator has determined that the non-payroll portion of the
       forgivable loan amount should be limited to effectuate the core purpose of the
       statute and ensure finite program resources are devoted primarily to payroll. The
       Administrator has determined in consultation with the Secretary that 75 percent is
       an appropriate percentage in light of the Act’s overarching focus on keeping
       workers paid and employed. Further, the Administrator and the Secretary believe
       that applying this threshold to loan forgiveness is consistent with the structure of
       the Act, which provides a loan amount 75 percent of which is equivalent to eight
       weeks of payroll (8 weeks/2.5 months = 56 days/76 days = 74 percent rounded up
       to 75 percent). Limiting non-payroll costs to 25 percent of the forgiveness amount
       will align these elements of the program and will also help to ensure that the finite
       appropriations available for PPP loan forgiveness are directed toward payroll
       protection.

In addition to the 75-percent payroll criteria, the maturity term established by the Administrator
and the Secretary would require the borrowers to repay any amount not eligible for forgiveness
within the remainder of the initial 2-year term. The Act, however, allowed for a maximum maturity
of up to 10 years. SBA’s requirements could result in an unintended burden to the borrowers. For
example, PPP borrowers who do not use at least 75 percent of the loan for payroll (therefore use
more than 25 percent of their loan proceeds for nonpayroll expenses) may not be able to have all of
their loan forgiven. It may be important to consider that many small businesses have more
operational expenses than employee expenses. Our review of data from round one found that tens
of thousands of borrowers would not meet the 75-percent payroll cost threshold and would
therefore have to repay the amount of nonpayroll costs in excess of 25 percent in less than2 years.

Guidance on Loan Deferments

We found that SBA did not issue guidance on the deferment process for PPP loans to lenders within
30 days as required. Specifically, the Act requires SBA to provide guidance to lenders on the
deferment process within 30 days of enactment (March 27, 2020). Section 1102 of the CARES Act
requires lenders to provide complete payment deferment relief for impacted borrowers with
covered loans for a period of not less than 6 months (including payment of principal, interest, and
fees) and not more than 1 year. As of May 5, 2020, we found no evidence that SBA issued this
guidance.

Without proper and timely guidance for loan deferments, lenders and borrowers may be uncertain
about program requirements for servicing and loan repayments for PPP loans with balances

                                                 5
remaining after forgiveness. Specifically, lenders may not be adequately prepared to service PPP
loans that carry balances, and borrowers may not know what is required to repay outstanding loan
balances.

Registration of Loans

We found no evidence that SBA registered the loans as required by the Act. While SBA collects the
applicant’s Taxpayer Identification Number (TIN), we did not find it registered this information.
Section 1102 states that not later than 15 days after the date on which a loan is made, SBA shall
register the loan using the TIN assigned to the borrower.

Suggested Actions for SBA
To better align PPP requirements with the provisions of the CARES Act we suggest that SBA:

   •   Issue guidance to lenders requiring the lenders to prioritize borrowers in underserved
       markets and revise the PPP borrower application to include the collection of optional
       demographic information for principals for the remaining available lending authority and
       any future lending under the program.
   •   For loans that are already disbursed, include optional demographic information on forms
       used to request loan forgiveness.
   •   Evaluate the potential negative impact to borrowers regarding the specified percentage of
       loan proceeds eligible for forgiveness and update the requirements, as deemed necessary.
   •   Issue guidance to lenders on the deferment process for PPP loans.
   •   Register PPP loans by TIN.

Disclaimer
This report compares and contrasts key provisions of Section 1102of the CARES Act to SBA’s
Interim Final Rules and other public guidance to further inform stakeholders of SBA’s
implementation of the PPP. We are performing our ongoing review of SBA’s implementation of the
PPP under the Council of the Inspectors General for Integrity and Efficiency’s Quality Standards for
Inspection and Evaluation, but we have not prepared this flash report to meet this standard.

If you have any questions, please contact me at 202-205-6586 or Andrea Deadwyler, Assistant
Inspector General for Audits, at 202-205-6616.


cc: William Manger, Chief of Staff and Associate Administrator, Office of Capital Access
    Brittany Biles, General Counsel
    John Miller, Deputy Associate Administrator, Office of Capital Access
    William Briggs, Deputy Associate Administrator, Office of Capital Access
    Dianna Seaborn, Director, Office of Financial Assistance
    Jihoon Kim, Director, Office of Financial Program Operations
    Susan Streich, Director, Office of Credit Risk Management
    Martin Conrey, Attorney Advisor, Legislation and Appropriations
    Tami Perriello, Chief Financial Officer
    Tonia Butler, Director, Office of Internal Controls




                                                  6
Appendix I: Interim Final Rules


    Interim Final Rule
         Number          Subject                                                 Date Issued
            1            Paycheck Protection Program                             April 2, 2020
            2            Affiliation Rules                                       April 3, 2020
                         Additional Eligibility Criteria and Requirements for
                         Certain Pledges of Loans for the Paycheck Protection
            3            Program                                                 April 14, 2020
                         Promissory Notes, Authorizations, Affiliation, and
            4            Eligibility                                             April 24, 2020
            5            Seasonal Employers                                      April 27, 2020
            6            Disbursements                                           April 28, 2020
                         Requirements – Corporate Groups and Non-Bank and Non-
            7            Insured Depository Institution Lenders                  April 30, 2020




                                                     7
Appendix II: Detailed Comparison

             CARES Act Requirement                                   Interim Final Rule                          Related Frequently Asked Questions


Section 1102(a)(2)(A)(viii) The term 'payroll         Interim Final Rule 1, Issued April 2, 2020, (IFR1) FAQ # 7: The CARES Act excludes from the
costs’-                                               Section III(2)(f). What qualifies as ‘‘payroll costs?’’ definition of payroll costs any employee
 (I) means                                                                                                    compensation in excess of an annual salary of
      (aa) the sum of payments of any                   Payroll costs consist of compensation to              $100,000. Does that exclusion apply to all
   compensation with respect to employees that is employees (whose principal place of residence is employee benefits of monetary value?
   a—                                                 the United States) in the form of salary, wages,
          (AA) salary, wage, commission, or similar commissions, or similar compensation; cash tips Answer: No. The exclusion of compensation in
      compensation;                                   or the equivalent (based on employer records of excess of $100,000 annually applies only to cash
          (BB) payment of cash tip or equivalent;     past tips or, in the absence of such records, a         compensation, not to non-cash benefits, including:
          (CC) payment for vacation, parental, family reasonable, good-faith employer estimate of such - employer contributions to defined-benefit or
      medical, or sick leave;                         tips); payment for vacation, parental, family,          defined-contribution retirement plans;
          (DD) allowance for dismissal or separation; medical, or sick leave; allowance for separation or - payment for the provision of employee benefits
          (EE) payment required for the provisions dismissal; payment for the provision of employee consisting of group health care coverage, including
      of group health care benefits, including        benefits consisting of group health care coverage, insurance premiums; and
      insurance premiums;                             including insurance premiums, and retirement;            - payment of state and local taxes assessed on
          (FF) payment of any retirement benefit; or payment of state and local taxes assessed on             compensation of employees.
          (GG) payment of State or local tax assessed compensation of employees; and for an
      on the compensation of employees                independent contractor or sole proprietor, wages, FAQ # 8: Do PPP loans cover paid sick leave?
      ‘‘(bb) the sum of payments of any               commissions, income, or net earnings from self-
   compensation to or income of a sole proprietor employment, or similar compensation.                        Answer: Yes. PPP loans covers payroll costs,
   or independent contractor that is a wage,                                                                  including costs for employee vacation, parental,
   commission, income, net earnings from self                                                                 family, medical, and sick leave. However, the
   employment, or similar compensation and that                                                               CARES Act excludes qualified sick and family leave
   is in an amount that is not more than $100,000                                                             wages for which a credit is allowed under sections
   in 1 year, as prorated for the covered period;                                                             7001 and 7003 of the Families First Coronavirus
     And                                                                                                      Response Act (Public Law 116–127). Learn more
                                                                                                              about the Paid Sick Leave Refundable Credit here.




                                                                               8
            CARES Act Requirement                                  Interim Final Rule                       Related Frequently Asked Questions


Section 1102(a)(2)(A)(viii) The term 'payroll       IFR1 Section III(2)(f). What qualifies as ‘‘payroll FAQ # 7: The CARES Act excludes from the
costs’-                                             costs?’’                                            definition of payroll costs any employee
 ‘‘(II) shall not include—                                                                              compensation in excess of an annual salary of
    ‘‘(aa) the compensation of an individual          Payroll costs consist of compensation to          $100,000. Does that exclusion apply to all
    employee in excess of an annual salary of       employees (whose principal place of residence is employee benefits of monetary value?
    $100,000, as prorated for the covered period; the United States) in the form of salary, wages,
    ‘‘(bb) taxes imposed or withheld under          commissions, or similar compensation; cash tips Answer: No. The exclusion of compensation in
    chapters 21, 22, or 24 of the Internal Revenue or the equivalent (based on employer records of excess of $100,000 annually applies only to cash
    Code of 1986 during the covered period;         past tips or, in the absence of such records, a     compensation, not to non-cash benefits, including:
    ‘‘(cc) any compensation of an employee whose reasonable, good-faith employer estimate of such - employer contributions to defined-benefit or
    principal place of residence is outside of the  tips); payment for vacation, parental, family,      defined-contribution retirement plans;
    United States;                                  medical, or sick leave; allowance for separation or - payment for the provision of employee benefits
    ‘‘(dd) qualified sick leave wages for which a   dismissal; payment for the provision of employee consisting of group health care coverage, including
    credit is allowed under section 7001 of the     benefits consisting of group health care coverage, insurance premiums; and
    Families First Coronavirus Response Act         including insurance premiums, and retirement;       - payment of state and local taxes assessed on
    (Public Law 116–127); or                        payment of state and local taxes assessed on        compensation of employees.
    ‘‘(ee) qualified family leave wages for which a compensation of employees; and for an
    credit is allowed under section 7003 of the     independent contractor or sole proprietor, wages,
    Families First Coronavirus Response Act         commissions, income, or net earnings from self-
    (Public Law 116–127);                           employment, or similar compensation.




                                                                            9
            CARES Act Requirement                                   Interim Final Rule                           Related Frequently Asked Questions


Section 1102(a)(2)(B) PAYCHECK PROTECTION           IFR1 Section III(4)a. What are the loan terms and We did not identify any FAQ that related directly
LOANS.—                                             conditions?                                       to this requirement.
Except as otherwise provided in this paragraph,
the Administrator may guarantee covered loans       Loans will be guaranteed under the PPP under the
under the same terms, conditions, and processes     same terms, conditions and processes as other
as a loan made under this subsection.               7(a) loans, with certain changes including but not
                                                    limited to:
                                                      i. The guarantee percentage is 100 percent.
                                                      ii. No collateral will be required.
                                                      iii. No personal guarantees will be required.
                                                      iv. The interest rate will be 100 basis points or
                                                      one percent.
                                                      v. All loans will be processed by all lenders under
                                                      delegated authority and lenders will be
                                                      permitted to rely on certifications of the
                                                      borrower in order to determine eligibility of the
                                                      borrower and the use of loan proceeds.




Section 1102(a)(2)(C) REGISTRATION OF               We did not identify any requirements in the             We did not identify any FAQ that related directly
LOANS.—                                             Interim Final Rules as of April 30, 2020 that           to this requirement.
Not later than 15 days after the date on which a    related directly to this requirement.
loan is made under this paragraph, the
Administration shall register the loan using
the TIN (as defined in section 7701 of the Internal
Revenue Code of 1986) assigned to the borrower.




                                                                             10
             CARES Act Requirement                                    Interim Final Rule                          Related Frequently Asked Questions


Section 1102(a)(2)(D) INCREASED ELIGIBILITY IFR1 Section III(2)(a) Am I eligible?                          FAQ # 2: Are small business concerns (as defined
FOR CERTAIN SMALL BUSINESSES AND                                                                           in section 3 of the Small Business Act, 15 U.S.C.
ORGANIZATIONS.—                                         You are eligible for a PPP loan if you have 500 or 632) required to have 500 or fewer employees to
 ‘‘(i) IN GENERAL.—During the covered period, in fewer employees whose principal place of                  be eligible borrowers in the PPP?
 addition to small business concerns, any             residence is in the United States, or are a business
 business concern, nonprofit organization,            that operates in a certain industry and meet the     Answer: No. Small business concerns can be
 veterans organization, or Tribal business            applicable SBA employee-based size standards for eligible borrowers even if they have more than
 concern described in section 31(b)(2)(C) shall be that industry, and:                                     500 employees, as long as they satisfy the existing
 eligible to receive a covered loan if the business     i. You are:                                        statutory and regulatory definition of a “small
 concern, nonprofit organization, veterans                 A. A small business concern as defined in       business concern” under section 3 of the Small
 organization, or Tribal business concern employs section 3 of the Small Business Act (15 USC              Business Act, 15 U.S.C. 632. A business can qualify
 not more than the greater of—                             632), and subject to SBA’s affiliation rules    if it meets the SBA employee-based or revenue-
    ‘‘(I) 500 employees; or                                under 13 CFR 121.301(f) unless specifically     based size standard corresponding to its primary
    ‘‘(II) if applicable, the size standard in number      waived in the Act;                              industry. Go to www.sba.gov/size for the industry
    of employees established by the Administration B. A tax-exempt nonprofit organization                  size standards.
    for the industry in which the business concern,        described in section 501(c)(3) of the Internal
    nonprofit organization, veterans organization,         Revenue Code (IRC), a tax-exempt veterans       Additionally, a business can qualify for the
    or Tribal business concern operates.                   organization described in section 501(c)(19) of Paycheck Protection Program as a small business
                                                           the IRC, Tribal business concern described in concern if it met both tests in SBA’s “alternative
                                                           section 31(b)(2)(C) of the Small Business Act, size standard” as of March 27, 2020: (1) maximum
                                                           or any other business; and                      tangible net worth of the business is not more
                                                        ii. You were in operation on February 15, 2020 than $15 million; and (2) the average net income
                                                        and either had employees for whom you paid         after Federal income taxes (excluding any carry-
                                                        salaries and payroll taxes or paid independent over losses) of the business for the two full fiscal
                                                        contractors, as reported on a Form 1099-MISC. years before the date of the application is not
                                                        You are also eligible for a PPP loan if you are an more than $5 million.
                                                        individual who operates under a sole
                                                        proprietorship or as an independent contractor A business that qualifies as a small business
                                                        or eligible self-employed individual, you were in concern under section 3 of the Small Business Act,
                                                        operation on February 15, 2020.                    15 U.S.C. 632, may truthfully attest to its eligibility
                                                                                                           for PPP loans on the Borrower Application Form,
                                                                                                           unless otherwise ineligible.

                                                                               11
            CARES Act Requirement                                  Interim Final Rule                        Related Frequently Asked Questions


Section 1102(a)(2)(D)(ii) INCLUSION OF SOLE       IFR1 Section III(2)(a) Am I eligible?                FAQ # 15: Should payments that an eligible
PROPRIETORS, INDEPENDENT                                                                               borrower made to an independent contractor or
CONTRACTORS, AND ELIGIBLE SELF-EMPLOYED             You are also eligible for a PPP loan if you are an sole proprietor be included in calculations of the
INDIVIDUALS.—                                     individual who operates under a sole                 eligible borrower’s payroll costs?
 ‘‘(I) IN GENERAL.—During the covered period, proprietorship or as an independent contractor or
 individuals who operate under a sole             eligible self-employed individual, you were in       Answer: No. Any amounts that an eligible
 proprietorship or as an independent contractor operation on February 15, 2020.                        borrower has paid to an independent contractor
 and eligible self-employed individuals shall be                                                       or sole proprietor should be excluded from the
 eligible to receive a covered loan.                You must also submit such documentation as is eligible business’s payroll costs. However, an
 ‘‘(II) DOCUMENTATION.—An eligible self-          necessary to establish eligibility such as payroll   independent contractor or sole proprietor will
 employed individual, independent contractor, or processor records, payroll tax filings, or Form       itself be eligible for a loan under the PPP, if it
 sole proprietorship seeking a covered loan shall 1099-MISC, or income and expenses from a sole satisfies the applicable requirements.
 submit such documentation as is necessary to     proprietorship. For borrowers that do not have
 establish such individual as eligible, including any such documentation, the borrower must
 payroll tax filings reported to the Internal     provide other supporting documentation, such as
 Revenue Service, Forms 1099–MISC, and income bank records, sufficient to demonstrate the
 and expenses from the sole proprietorship, as    qualifying payroll amount. SBA intends to
 determined by the Administrator and the          promptly issue additional guidance with regard to
 Secretary.                                       the applicability of affiliation rules at 13 CFR §§
                                                  121.103 and 121.301 to PPP loans




                                                                            12
            CARES Act Requirement                                   Interim Final Rule                         Related Frequently Asked Questions


Section 1102(a)(2)(D)(iii) BUSINESS CONCERNS Interim Final Rule on Applicable Affiliation Rules, FAQ # 24: How do the $10 million cap and
WITH MORE THAN 1 PHYSICAL LOCATION.—                 Issued April 3, 2020, (IFR2) Section III(1)          affiliation rules work for hotels and restaurants
During the covered period, any business concern                                                           (and any business assigned a North American
that employs not more than 500 employees per         How do SBA’s affiliation rules affect my eligibility Industry Classification System (NAICS) code
physical location of the business concern and that and apply to me under the PPP?                         beginning with 72)?
is assigned a North American Industry
Classification System code beginning with 72 at      An entity generally is eligible for the PPP if it,   Answer: Under the CARES Act, any single business
the time of disbursal shall be eligible to receive a combined with its affiliates, is a small business as entity that is assigned a NAICS code beginning
covered loan.                                        defined in section 3 of the Small Business Act (15 with 72 (including hotels and restaurants) and
                                                     U.S.C. 632), or (1) has 500 or fewer employees       that employs not more than 500 employees per
                                                     whose principal place of residence is in the United physical location is eligible to receive a PPP loan.
                                                     States or is a business that operates in a certain
                                                     industry and meets applicable SBA employee-          In addition, SBA’s affiliation rules (13 CFR 121.103
                                                     based size standards for that industry, and (2) is a and 13 CFR 121.301) do not apply to any business
                                                     tax-exempt nonprofit organization described in       entity that is assigned a NAICS code beginning
                                                     section 501(c)(3) of the Internal Revenue Code       with 72 and that employs not more than a total of
                                                     (IRC), a tax-exempt veterans organization            500 employees. As a result, if each hotel or
                                                     described in section 501(c)(19) of the IRC, a Tribal restaurant location owned by a parent business is
                                                     business concern described in section 31(b)(2)(C) a separate legal business entity, each hotel or
                                                     of the Small Business Act, or any other business     restaurant location that employs not more than
                                                     concern. Prior to the Act, the nonprofit             500 employees is permitted to apply for a
                                                     organizations listed above were not eligible for     separate PPP loan provided it uses its unique EIN.
                                                     SBA Business Loan Programs under section 7(a) of
                                                     the Small Business Act; only for-profit small        The $10 million maximum loan amount limitation
                                                     business concerns were eligible. *For brevity, we applies to each eligible business entity, because
                                                     excluded additional text from the Interim Final      individual business entities cannot apply for more
                                                     Rule.                                                than one loan. The following examples illustrate
                                                                                                          how these principles apply.




                                                                             13
            CARES Act Requirement                                    Interim Final Rule                        Related Frequently Asked Questions


Section 1102(a)(2)(D)(iv) WAIVER OF                 IFR2 Section III. Affiliate Rules for Paycheck          FAQ # 23: How do the $10 million cap and
AFFILIATION RULES.—During the covered period, Protection Program                                            affiliation rules work for franchises?
the provisions applicable to affiliations under
section 121.103 of title 13, Code of Federal        1. Affiliation Rules Generally                          Answer: If a franchise brand is listed on the SBA
Regulations, or any successor regulation, are                                                               Franchise Directory, each of its franchisees that
waived with respect to eligibility for a covered    Are affiliates considered together for purposes of meets the applicable size standard can apply for a
loan for—                                           determining eligibility?                                PPP loan. (The franchisor does not apply on behalf
  ‘‘(I) any business concern with not more than                                                             of its franchisees.) The $10 million cap on PPP
  500 employees that, as of the date on which the In most cases, a borrower will be considered              loans is a limit per franchisee entity, and each
  covered loan is disbursed, is assigned a North    together with its affiliates for purposes of            franchisee is limited to one PPP loan.
  American Industry Classification System code      determining eligibility for the PPP.
  beginning with 72;                                                                                        Franchise brands that have been denied listing on
  ‘‘(II) any business concern operating as a        Section 7(a)(36)(D)(iv) of the Small Business Act the Directory because of affiliation between
  franchise that is assigned a franchise identifier (15 U.S.C. 636(a)(36)(D)(iv), as added by the Act, franchisor and franchisee may request listing to
  code by the Administration; and                   waives the affiliation rules contained in § 121.103 receive PPP loans. SBA will not apply affiliation
  ‘‘(III) any business concern that receives        for (1) any business concern with not more than rules to a franchise brand requesting listing on the
  financial assistance from a company licensed      500 employees that, as of the date on which the         Directory to participate in the PPP, but SBA will
  under section 301 of the Small Business           loan is disbursed, is assigned a North American         confirm that the brand is otherwise eligible for
  Investment Act of 1958 (15 U.S.C. 681).           Industry Classification System code beginning           listing on the Directory.
                                                    with 72; (2) any business concern operating as a
                                                    franchise that is assigned a franchise identifier
                                                    code by the Administration; and (3) any business
                                                    concern that receives financial assistance from a
                                                    company licensed under section 301 of the Small
                                                    Business Investment Act of 1958 (15 U.S.C. 681).
                                                    This Interim Final Rule has no effect on these
                                                    statutory waivers, which remain in full force and
                                                    effect. As a result, the affiliation rules contained in
                                                    section 121.301 also do not apply to these types of
                                                    entities.




                                                                             14
            CARES Act Requirement                                   Interim Final Rule                        Related Frequently Asked Questions


Section 1102(a)(2)(D)(v) EMPLOYEE.—For              IFR2 Section III(3) § 121.103 How does SBA           FAQ 36: To determine borrower eligibility under
purposes of determining whether a business          determine affiliation?”                              the 500-employee or other applicable threshold
concern, nonprofit organization, veterans                                                                established by the CARES Act, must a borrower
organization, or Tribal business concern described In addition, the eligibility criteria set forth in 15 count all employees or only full-time equivalent
in section 31(b)(2)(C) employs not more than 500 U.S.C. 636(a)(36)(D) are satisfied for any faith        employees?
employees under clause (i)(I), the term ‘employee’ based organization having not more than 500
includes individuals employed on a full-time, part- employees (including individuals employed on a Answer: For purposes of loan eligibility, the
time, or other basis.                               full-time, part-time, or other basis) that pays      CARES Act defines the term employee to include
                                                    federal payroll taxes using its own Internal         “individuals employed on a full-time, part-time, or
                                                    Revenue Service Employer Identification Number other basis.” A borrower must therefore calculate
                                                    (EIN) or that would be eligible for a deduction      the total number of employees, including part-
                                                    under the second sentence of 26 U.S.C. 512(b)(12) time employees, when determining their
                                                    if the organization earned unrelated business        employee headcount for purposes of the eligibility
                                                    taxable income.                                      threshold. For example, if a borrower has 200 full-
                                                                                                         time employees and 50 part-time employees each
                                                                                                         working 10 hours per week, the borrower has a
                                                                                                         total of 250 employees. By contrast, for purposes
                                                                                                         of loan forgiveness, the CARES Act uses the
                                                                                                         standard of “fulltime equivalent employees” to
                                                                                                         determine the extent to which the loan forgiveness
                                                                                                         amount will be reduced in the event of workforce
                                                                                                         reductions.




                                                                            15
             CARES Act Requirement                                    Interim Final Rule                         Related Frequently Asked Questions


Section 1102(a)(2)(D)(vi) AFFILIATION.—The           IFR2 Section III(1) How do SBA’s affiliation rules FAQ 3: Does my business have to qualify as a small
provisions applicable to affiliations under section affect my eligibility and apply to me under the         business concern (as defined in section 3 of the
121.103 of title 13, Code of Federal Regulations, or PPP?                                                   Small Business Act, 15 U.S.C. 632) in order to
any successor thereto, shall apply with respect to a                                                        participate in the PPP?
nonprofit organization and a veterans                  The Act made such nonprofit organizations not
organization in the same manner as with respect only eligible for the PPP, but also subjected them Answer: In addition to small business concerns, a
to a small business concern.                         to SBA’s affiliation rules. Specifically, section 1102 business is eligible for a PPP loan if the business
                                                     of the Act provides that the provisions applicable has 500 or fewer employees whose principal place
                                                     to affiliations under 13 CFR 121.103 apply with        of residence is in the United States, or the business
                                                     respect to nonprofit organizations and veterans meets the SBA employee-based size standards for
                                                     organizations in the same manner as with respect the industry in which it operates (if applicable).
                                                     to small business concerns. However, the detailed Similarly, PPP loans are also available for
                                                     affiliation standards contained in section 121.103 qualifying tax-exempt nonprofit organizations
                                                     currently do not apply to PPP borrowers, because described in section 501(c)(3) of the Internal
                                                     section 121.103(a)(8) provides that applicants in Revenue Code (IRC), tax-exempt veterans
                                                     SBA’s Business Loan Programs (which include the organization described in section 501(c)(19) of
                                                     PPP) are subject to the affiliation rule contained in the IRC, and Tribal business concerns described in
                                                     13 CFR 121.301.                                        section 31(b)(2)(C) of the Small Business Act that
                                                                                                            have 500 or fewer employees whose principal
                                                                                                            place of residence is in the United States, or meet
                                                                                                            the SBA employee-based size standards for the
                                                                                                            industry in which they operate.




                                                                               16
            CARES Act Requirement                                   Interim Final Rule                        Related Frequently Asked Questions


Section 1102(a)(2)(E) MAXIMUM LOAN                     IFR1 Section III(2)d. I have determined that I am FAQ 9: My small business is a seasonal business
AMOUNT.—During the covered period, with                eligible. How much can I borrow?                   whose activity increases from April to June.
respect to a covered loan, the maximum loan                                                               Considering activity from that period would be a
amount shall be the lesser of—                            Under the PPP, the maximum loan amount is the more accurate reflection of my business’s
 ‘‘(i)(I) the sum of—                                  lesser of $10 million or an amount that you will   operations. However, my small business was not
    ‘‘(aa) the product obtained by multiplying—        calculate using a payroll-based formula specified fully ramped up on February 15, 2020. Am I still
       ‘‘(AA) the average total monthly payments by in the Act, as explained below.                       eligible?
    the applicant for payroll costs incurred during
    the 1-year period before the date on which the Section III(2)e. How do I calculate the maximum Answer: In evaluating a borrower’s eligibility, a
    loan is made, except that, in the case of an       amount I can borrow?                               lender may consider whether a seasonal borrower
    applicant that is seasonal employer, as                                                               was in operation on February 15, 2020 or for an 8-
    determined by the Administrator, the average          The following methodology, which is one of the week period between February 15, 2019 and June
    total monthly payments for payroll shall be for methodologies contained in the Act, will be most 30, 2019.
    the 12-week period beginning February 15,          useful for many applicants.
    2019, or at the election of the eligible recipient, i. Step 1: Aggregate payroll costs (defined in
    March 1, 2019, and ending June 30, 2019; by          detail below in f.) from the last twelve months
      ‘‘(BB) 2.5; and                                    for employees whose principal place of residence
    ‘‘(bb) the outstanding amount of a loan under        is the United States.
    subsection (b)(2) that was made during the           ii. Step 2: Subtract any compensation paid to an
    period beginning on January 31, 2020 and             employee in excess of an annual salary of
    ending on the date on which covered loans are $100,000 and/or any amounts paid to an
    made available to be refinanced under the            independent contractor or sole proprietor in
    covered loan; or                                     excess of $100,000 per year.
                                                         iii. Step 3: Calculate average monthly payroll
                                                         costs (divide the amount from Step 2 by 12).
                                                         iv. Step 4: Multiply the average monthly payroll
                                                         costs from Step 3 by 2.5.
                                                         v. Step 5: Add the outstanding amount of an
                                                         Economic Injury Disaster Loan (EIDL) made
                                                         between January 31, 2020 and April 3, 2020, less
                                                         the amount of any ‘‘advance’’ under an EIDL
                                                         COVID–19 loan (because it does not have to be
                                                         repaid).
                                                                            17
           CARES Act Requirement                           Interim Final Rule                Related Frequently Asked Questions


(II) if requested by an otherwise eligible            (Continued from previous page)   FAQ 14: What time period should borrowers use
recipient that was not in business during the                                          to determine their number of employees and
period beginning on February 15, 2019 and                                              payroll costs to calculate their maximum loan
ending on June 30, 2019, the sum of—                                                   amounts?
  ‘‘(aa) the product obtained by multiplying—
     ‘‘(AA) the average total monthly payments by                                      Answer: In general, borrowers can calculate their
    the applicant for payroll costs incurred during                                    aggregate payroll costs using data either from the
    the period beginning on January 1, 2020 and                                        previous 12 months or from calendar year 2019.
    ending on February 29, 2020; by                                                    For seasonal businesses, the applicant may use
     ‘‘(BB) 2.5; and                                                                   average monthly payroll for the period between
  ‘‘(bb) the outstanding amount of a loan under                                        February 15, 2019, or March 1, 2019, and June 30,
  subsection (b)(2) that was made during the                                           2019. An applicant that was not in business from
  period beginning on January 31, 2020 and                                             February 15, 2019 to June 30, 2019 may use the
  ending on the date on which covered loans are                                        average monthly payroll costs for the period
  made available to be refinanced under the                                            January 1, 2020 through February 29, 2020.
  covered loan; or
‘‘(ii) $10,000,000.                                                                    Borrowers may use their average employment
                                                                                       over the same time periods to determine their
                                                                                       number of employees, for the purposes of
                                                                                       applying an employee-based size standard.
                                                                                       Alternatively, borrowers may elect to use SBA’s
                                                                                       usual calculation: the average number of
                                                                                       employees per pay period in the 12 completed
                                                                                       calendar months prior to the date of the loan
                                                                                       application (or the average number of employees
                                                                                       for each of the pay periods that the business has
                                                                                       been operational, if it has not been operational for
                                                                                       12 months).




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             CARES Act Requirement                                    Interim Final Rule                          Related Frequently Asked Questions


Section 1102(a)(2)(F) ALLOWABLE USES OF               IFR1 Section III(2)r.                                    FAQ 7: The CARES Act excludes from the definition
COVERED LOANS.—                                                                                                of payroll costs any employee compensation in
 ‘‘(i) IN GENERAL.—During the covered period, The proceeds of a PPP loan are to be used for:                   excess of an annual salary of $100,000. Does that
 an eligible recipient may, in addition to the                                                                 exclusion apply to all employee benefits of
 allowable uses of a loan made under this                i. payroll costs (as defined in the Act and in 2.f.); monetary value?
 subsection, use the proceeds of the covered loan        ii. costs related to the continuation of group
 for—                                                   health care benefits during periods of paid sick, Answer: No. The exclusion of compensation in
    ‘‘(I) payroll costs;                                medical, or family leave, and insurance                excess of $100,000 annually applies only to cash
    ‘‘(II) costs related to the continuation of group premiums;                                                compensation, not to non-cash benefits, including:
    health care benefits during periods of paid sick, iii. mortgage interest payments (but not                  - employer contributions to defined-benefit or
    medical, or family leave, and insurance             mortgage prepayments or principal payments); defined-contribution retirement plans;
    premiums;                                            iv. rent payments;                                     - payment for the provision of employee benefits
    ‘‘(III) employee salaries, commissions, or           v. utility payments;                                  consisting of group health care coverage, including
    similar compensations;                               vi. interest payments on any other debt               insurance premiums; and
    ‘‘(IV) payments of interest on any mortgage         obligations that were incurred before February - payment of state and local taxes assessed on
    obligation (which shall not include any             15, 2020; and/or                                       compensation of employees.
    prepayment of or payment of principal on a           vii. refinancing an SBA EIDL loan made between
    mortgage obligation);                               January 31, 2020 and April 3, 2020. If you             FAQ 8: Do PPP loans cover paid sick leave?
    ‘‘(V) rent (including rent under a lease            received an SBA EIDL loan from January 31,
    agreement);                                         2020 through April 3, 2020, you can apply for a Answer: Yes. PPP loans covers payroll costs,
    ‘‘(VI) utilities; and                               PPP loan. If your EIDL loan was not used for           including costs for employee vacation, parental,
    ‘‘(VII) interest on any other debt obligations      payroll costs, it does not affect your eligibility for family, medical, and sick leave. However, the
    that were incurred before the covered period.       a PPP loan. If your EIDL loan was used for             CARES Act excludes qualified sick and family leave
                                                        payroll costs, your PPP loan must be used to           wages for which a credit is allowed under sections
                                                        refinance your EIDL loan. Proceeds from any            7001 and 7003 of the Families First Coronavirus
                                                        advance up to $10,000 on the EIDL loan will be Response Act (Public Law 116–127). Learn more
                                                        deducted from the loan forgiveness amount on about the Paid Sick Leave Refundable Credit here.
                                                        the PPP loan.
                                                         However, at least 75 percent of the PPP loan
                                                        proceeds shall be used for payroll costs.




                                                                               19
  CARES Act Requirement               Interim Final Rule                Related Frequently Asked Questions


(Continued from previous page)   (Continued from previous page)   FAQ 15: Should payments that an eligible
                                                                  borrower made to an independent contractor or
                                                                  sole proprietor be included in calculations of the
                                                                  eligible borrower’s payroll costs?

                                                                  Answer: No. Any amounts that an eligible
                                                                  borrower has paid to an independent contractor
                                                                  or sole proprietor should be excluded from the
                                                                  eligible business’s payroll costs. However, an
                                                                  independent contractor or sole proprietor will
                                                                  itself be eligible for a loan under the PPP, if it
                                                                  satisfies the applicable requirements.

                                                                  FAQ 32: Does the cost of a housing stipend or
                                                                  allowance provided to an employee as part of
                                                                  compensation count toward payroll costs?

                                                                  Answer: Yes. Payroll costs includes all cash
                                                                  compensation paid to employees, subject to the
                                                                  $100,000 annual compensation per employee
                                                                  limitation.




                                              20
            CARES Act Requirement                                 Interim Final Rule                       Related Frequently Asked Questions


Section 1102(a)(2)(F)(ii) DELEGATED                IFR1 Section III(3)a. Who is eligible to make PPP We did not identify any FAQ that related directly
AUTHORITY.—                                        loans?                                              to this requirement.
  ‘‘(I) IN GENERAL.—For purposes of making
 covered loans for the purposes described in           i. All SBA 7(a) lenders are automatically
 clause (i), a lender approved to make loans         approved to make PPP loans on a delegated
 under this subsection shall be deemed to have       basis.
 been delegated authority by the Administrator to ii. The Act provides that the authority to make
 make and approve covered loans, subject to the      PPP loans can be extended to additional lenders
 provisions of this paragraph.                       determined by the Administrator and the
  ‘‘(II) CONSIDERATIONS.—In evaluating the           Secretary to have the necessary qualifications to
 eligibility of a borrower for a covered loan with   process, close, disburse, and service loans made
 the terms described in this paragraph, a lender     with the SBA guarantee. Since SBA is authorized
 shall consider whether the borrower—                to make PPP loans up to $349 billion by June 30,
     ‘‘(aa) was in operation on February 15, 2020; 2020, the Administrator and the Secretary have
   and                                               jointly determined that authorizing additional
     ‘‘(bb)(AA) had employees for whom the           lenders is necessary to achieve the purpose of
   borrower paid salaries and payroll taxes; or      allowing as many eligible borrowers as possible
        ‘‘(BB) paid independent contractors, as      to receive loans by the June 30, 2020 deadline.
      reported on a Form 1099–MISC.




                                                                          21
           CARES Act Requirement                                 Interim Final Rule                        Related Frequently Asked Questions


Section 1102(a)(2)(F)(iii) ADDITIONAL             IFR1 Section III(3)(a)(iii). The following types of FAQ 22: I am a non-bank lender that meets all
LENDERS.—The authority to make loans under        lenders have been determined to meet the criteria applicable criteria of the PPP Interim Final Rule.
this paragraph shall be extended to additional    and are eligible to make PPP loans unless they       Will I be automatically enrolled as a PPP lender?
lenders determined by the Administrator and the   currently are designated in Troubled Condition by What criteria will SBA and the Treasury
Secretary of the Treasury to have the necessary   their primary Federal regulator or are subject to a Department use to assess whether to approve my
qualifications to process, close, disburse and    formal enforcement action with their primary         application to participate as a PPP lender?
service loans made with the guarantee of the      Federal regulator that addresses unsafe or
Administration.                                   unsound lending practices:                           Answer: We encourage lenders that are not
                                                    I. Any federally insured depository institution or currently 7(a) lenders to apply in order to
                                                  any federally insured credit union;                  increase the scope of PPP lending options and the
                                                    II. Any Farm Credit System institution (other      speed with which PPP loans can be disbursed to
                                                  than the Federal Agricultural Mortgage               help small businesses across America. We
                                                  Corporation) as defined in 12 U.S.C. 2002(a) that recognize that financial technology solutions can
                                                  applies the requirements under the Bank Secrecy promote efficiency and financial inclusion in
                                                  Act and its implementing regulations (collectively, implementing the PPP. Applicants should submit
                                                  BSA) as a federally regulated financial institution, SBA Form 3507 and the relevant attachments to
                                                  or functionally equivalent requirements that are NFRLApplicationForPPP@sba.gov. Submission of
                                                  not altered by this rule; and                        the SBA Form 3507 does not result in automatic
                                                    III. Any depository or non-depository financing enrollment in the PPP. SBA and the Treasury
                                                  provider that originates, maintains, and services Department will evaluate each application from a
                                                  business loans or other commercial financial         non-bank or non-insured depository institution
                                                  receivables and participation interests; has a       lender and determine whether the applicant has
                                                  formalized compliance program; applies the           the necessary qualifications to process, close,
                                                  requirements under the BSA as a federally            disburse, and service PPP loans made with SBA’s
                                                  regulated financial institution, or the BSA          guarantee. SBA may request additional
                                                  requirements of an equivalent federally regulated information from the applicant before making a
                                                  financial institution; has been operating since at determination.
                                                  least February 15, 2019, and has originated,
                                                  maintained, and serviced more than $50 million in
                                                  business loans or other commercial financial
                                                  receivables during a consecutive 12 month period
                                                  in the past 36 months, or is a service provider to
                                                  any insured depository institution that has a
                                                                          22
  CARES Act Requirement                         Interim Final Rule                     Related Frequently Asked Questions


(Continued from previous page)   contract to support such institution’s lending           (Continued from previous page)
                                 activities in accordance with 12 U.S.C. 1867(c) and
                                 is in good standing with the appropriate Federal
                                 banking agency.




                                                         23
           CARES Act Requirement                                 Interim Final Rule                        Related Frequently Asked Questions


Section 1102(a)(2)(F)(iv) REFINANCE.—A loan       IFR1 Section III(2)(r)vii. Refinancing an SBA EIDL We did not identify any FAQ that related directly
made under subsection (b)(2) during the period    loan made between January 31, 2020 and April 3, to this requirement.
beginning on January 31, 2020 and ending on the   2020. If you received an SBA EIDL loan from
date on which covered loans are made available    January 31, 2020 through April 3, 2020, you can
may be refinanced as part of a covered loan.      apply for a PPP loan. If your EIDL loan was not
                                                  used for payroll costs, it does not affect your
                                                  eligibility for a PPP loan. If your EIDL loan was
                                                  used for payroll costs, your PPP loan must be used
                                                  to refinance your EIDL loan. Proceeds from any
                                                  advance up to $10,000 on the EIDL loan will be
                                                  deducted from the loan forgiveness amount on the
                                                  PPP loan.




                                                                          24
            CARES Act Requirement                                  Interim Final Rule                       Related Frequently Asked Questions


Section 1102(a)(2)(F)(v) NONRECOURSE.—            IFR1 Section III(2)s. What happens if PPP loan       We did not identify any FAQ that related directly
Notwithstanding the waiver of the personal        funds are misused?                                   to this requirement.
guarantee requirement or collateral under
subparagraph (J), the Administrator shall have no If you use PPP funds for unauthorized purposes,
recourse against any individual shareholder,      SBA will direct you to repay those amounts. If you
member, or partner of an eligible recipient of a  knowingly use the funds for unauthorized
covered loan for nonpayment of any covered loan, purposes, you will be subject to additional liability
except to the extent that such shareholder,       such as charges for fraud. If one of your
member, or partner uses the covered loan          shareholders, members, or partners uses PPP
proceeds for a purpose not authorized under       funds for unauthorized purposes, SBA will have
clause (i).                                       recourse against the shareholder, member, or
                                                  partner for the unauthorized use.




                                                                           25
            CARES Act Requirement                                   Interim Final Rule                         Related Frequently Asked Questions


Section 1102(a)(2)(G) BORROWER                        IFR1 Section III(2)t. What certifications need to be FAQ 31: Do businesses owned by large companies
REQUIREMENTS.—                                        made?                                                with adequate sources of liquidity to support the
  ‘‘(i) CERTIFICATION.—An eligible recipient          On the Paycheck Protection Program application, business’s ongoing operations qualify for a PPP
 applying for a covered loan shall make a good        an authorized representative of the applicant must loan?
 faith certification—                                 certify in good faith to all of the below:
    ‘‘(I) that the uncertainty of current economic         i. The applicant was in operation on February Answer: In addition to reviewing applicable
  conditions makes necessary the loan request to 15, 2020 and had employees for whom it paid               affiliation rules to determine eligibility, all
  support the ongoing operations of the eligible        salaries and payroll taxes or paid independent borrowers must assess their economic need for a
  recipient;                                            contractors, as reported on a Form 1099–MISC. PPP loan under the standard established by the
    ‘‘(II) acknowledging that funds will be used to        ii. Current economic uncertainty makes this     CARES Act and the PPP regulations at the time of
  retain workers and maintain payroll or make           loan request necessary to support the ongoing the loan application. Although the CARES Act
  mortgage payments, lease payments, and utility operations of the Applicant.                              suspends the ordinary requirement that
  payments;                                                iii. The funds will be used to retain workers   borrowers must be unable to obtain credit
    ‘‘(III) that the eligible recipient does not have   and maintain payroll or make mortgage interest elsewhere (as defined in section 3(h) of the Small
  an application pending for a loan under this          payments, lease payments, and utility payments; Business Act), borrowers still must certify in good
  subsection for the same purpose and                   I understand that if the funds are knowingly used faith that their PPP loan request is necessary.
  duplicative of amounts applied for or received        for unauthorized purposes, the Federal             Specifically, before submitting a PPP application,
  under a covered loan; and                             Government may hold me legally liable such as all borrowers should review carefully the required
    ‘‘(IV) during the period beginning on February for charges of fraud. As explained above, not           certification that “[c]urrent economic uncertainty
  15, 2020 and ending on December 31, 2020,             more than 25 percent of loan proceeds may be makes this loan request necessary to support the
  that the eligible recipient has not received          used for non-payroll costs.                        ongoing operations of the Applicant.” Borrowers
  amounts under this subsection for the same               vi. During the period beginning on February     must make this certification in good faith, taking
  purpose and duplicative of amounts applied for 15, 2020 and ending on December 31, 2020, the into account their current business activity and
  or received under a covered loan.                     applicant has not and will not receive another     their ability to access other sources of liquidity
                                                        loan under this program.                           sufficient to support their ongoing operations in a
                                                                                                           manner that is not significantly detrimental to the
                                                      Note: For brevity, we excluded certifications iv, v, business.
                                                      vii, and viii from the Interim Final Rule.
                                                                                                           Note: For brevity, we limited the text above to
                                                                                                           sections of the answer to FAQ 31 related to this
                                                                                                           topic.



                                                                             26
             CARES Act Requirement                                   Interim Final Rule                         Related Frequently Asked Questions


Section 1102(a)(2)(H) FEE WAIVER.—During the IFR1 Section III(4)b. Are there any fee waivers?             We did not identify any FAQ that related directly
covered period, with respect to a covered loan—                                                           to this requirement.
  ‘‘(i) in lieu of the fee otherwise applicable under i. There will be no up-front guarantee fee
 paragraph (23)(A), the Administrator shall           payable to SBA by the Borrower;
 collect no fee; and                                   ii. There will be no lender’s annual service fee
  ‘‘(ii) in lieu of the fee otherwise applicable      (‘‘on-going guaranty fee’’) payable to SBA;
 under paragraph (18)(A), the Administrator            iii. There will be no subsidy recoupment fee;
 shall collect no fee.                                and
                                                       iv. There will be no fee payable to SBA for any
                                                      guarantee sold into the secondary market.



Section 1102(a)(2)(I) CREDIT ELSEWHERE.—          Section III(3)e. Do lenders have to apply the           FAQ 31: Do businesses owned by large companies
During the covered period, the requirement that a ‘‘credit elsewhere test’’?                              with adequate sources of liquidity to support the
small business concern is unable to obtain credit                                                         business’s ongoing operations qualify for a PPP
elsewhere, as defined in section 3(h), shall not    No. When evaluating an applicant’s eligibility        loan?
apply to a covered loan.                          lenders will not be required to apply the ‘‘credit
                                                  elsewhere test’’ (as set forth in section 7(a)(1)(A)    Answer: Although the CARES Act suspends the
                                                  of the Small Business Act (15 U.S.C. 636) and SBA       ordinary requirement that borrowers must be
                                                  regulations at 13 CFR 120.101)).                        unable to obtain credit elsewhere (as defined in
                                                                                                          section 3(h) of the Small Business Act), borrowers
                                                                                                          still must certify in good faith that their PPP loan
                                                                                                          request is necessary.

                                                                                                          Note: For of brevity, we limited the text above to
                                                                                                          sections of the answer to FAQ 31 related to this
                                                                                                          topic.




                                                                             27
            CARES Act Requirement                                 Interim Final Rule                       Related Frequently Asked Questions


Section 1102(a)(2)(J) WAIVER OF PERSONAL           IFR1 Section III(4)a. What are the loan terms and We did not identify any FAQ that related directly
GUARANTEE REQUIREMENT.— During the                 conditions?                                          to this requirement.
covered period, with respect to a covered loan—
  ‘‘(i) no personal guarantee shall be required for Loans will be guaranteed under the PPP under
 the covered loan; and                             the same terms, conditions and processes as other
  ‘‘(ii) no collateral shall be required for the   7(a) loans, with certain changes including but not
 covered loan.                                     limited to:
                                                      i. The guarantee percentage is 100 percent.
                                                      ii. No collateral will be required.
                                                      iii. No personal guarantees will be required.
                                                      iv. The interest rate will be 100 basis points or
                                                     one percent.
                                                      v. All loans will be processed by all lenders
                                                     under delegated authority and lenders will be
                                                     permitted to rely on certifications of the
                                                     borrower in order to determine eligibility of the
                                                     borrower and the use of loan proceeds.




                                                                          28
            CARES Act Requirement                                   Interim Final Rule                        Related Frequently Asked Questions


Section 1102(a)(2)(K) MATURITY FOR LOANS            IFR1 Section III(2)j. What will be the maturity date We did not identify any FAQ that related directly
WITH REMAINING BALANCE AFTER                        on a PPP loan?                                       to this requirement.
APPLICATION OF FORGIVENESS.—With respect to
a covered loan that has a remaining balance after     The maturity is two years. While the Act
reduction based on the loan forgiveness amount provides that a loan will have a maximum
under section 1106 of the CARES Act—                maturity of up to ten years from the date the
   ‘‘(i) the remaining balance shall continue to be borrower applies for loan forgiveness (described
   guaranteed by the Administration under this      below), the Administrator, in consultation with the
  subsection; and                                   Secretary, determined that a two year loan term is
   ‘‘(ii) the covered loan shall have a maximum     sufficient in light of the temporary economic
  maturity of 10 years from the date on which the dislocations caused by the coronavirus.
  borrower applies for loan forgiveness under that Specifically, the considerable economic disruption
  section.                                          caused by the coronavirus is expected to abate
                                                    well before the two year maturity date such that
                                                    borrowers will be able to re-commence business
                                                    operations and pay off any outstanding balances
                                                    on their PPP loans.




                                                                            29
           CARES Act Requirement                            Interim Final Rule                         Related Frequently Asked Questions


Section 1102(a)(2)(L) INTEREST RATE          IFR1 Section III(2)i. What is the interest rate on a We did not identify any FAQ that related directly
REQUIREMENTS.—A covered loan shall bear an   PPP loan?                                             to this requirement.
interest rate not to exceed 4 percent.         The interest rate will be 100 basis points or one
                                             percent.
                                               The Administrator, in consultation with the
                                             Secretary, determined that a one percent interest
                                             rate is appropriate. First, it provides low cost
                                             funds to borrowers to meet eligible payroll costs
                                             and other eligible expenses during this temporary
                                             period of economic dislocation caused by the
                                             coronavirus. Second, for lenders, the 100 basis
                                             points offers an attractive interest rate relative to
                                             the cost of funding for comparable maturities. For
                                             example, the FDIC’s weekly national average rate
                                             for a 24-month CD deposit product for the week of
                                             March 30, 2020 is 42 basis points for non-jumbo
                                             and 44 basis points for jumbo
                                             (https://www.fdic.gov/regulations/resources/rat
                                             es/). Third, the interest rate is higher than the
                                             yield on Treasury securities of comparable
                                             maturity. For example, the yield on the Treasury
                                             two-year note is approximately 23 basis points.
                                             This higher yield combined with the fact that the
                                             loans are 100 percent guaranteed by the SBA and
                                             the fact that lenders will receive a substantial
                                             processing fee from the SBA provide ample
                                             inducement for lenders to participate in the PPP.




                                                                     30
            CARES Act Requirement                                  Interim Final Rule                        Related Frequently Asked Questions


Section 1102(a)(2)(M) LOAN DEFERMENT.—               IFR1 Section III(2)n. When will I have to begin    We did not identify any FAQ that related directly
  ‘‘(i) DEFINITION OF IMPACTED BORROWER.— paying principal and interest on my PPP loan?                 to this requirement.
     ‘‘(I) IN GENERAL.—In this subparagraph, the
   term ‘impacted borrower’ means an eligible          You will not have to make any payments for six
   recipient that—                                   months following the date of disbursement of the
        ‘‘(aa) is in operation on February 15, 2020; loan. However, interest will continue to accrue on
      and                                            PPP loans during this six-month deferment. The
        ‘‘(bb) has an application for a covered loan Act authorizes the Administrator to defer loan
      that is approved or pending approval on or     payments for up to one year. The Administrator
      after the date of enactment of this paragraph. determined, in consultation with the Secretary,
     ‘‘(II) PRESUMPTION.—For purposes of this        that a six-month deferment period is appropriate
   subparagraph, an impacted borrower is             in light of the modest interest rate (one percent)
   presumed to have been adversely impacted by on PPP loans and the loan forgiveness provisions
   COVID–19.                                         contained in the Act.
  ‘‘(ii) DEFERRAL.—During the covered period,
 the Administrator shall—
     ‘‘(I) consider each eligible recipient that
   applies for a covered loan to be an impacted
   borrower; and
     ‘‘(II) require lenders under this subsection to
   provide complete payment deferment relief for
   impacted borrowers with covered loans for a
   period of not less than 6 months, including
   payment of principal, interest, and fees, and not
   more than 1 year.




                                                                            31
            CARES Act Requirement                                   Interim Final Rule                     Related Frequently Asked Questions


Section 1102(a)(2)(M)(iii) SECONDARY                We did not identify any requirements in the       We did not identify any FAQ that related directly
MARKET.—During the covered period, with             Interim Final Rules issued to date that related   to this requirement.
respect to a covered loan that is sold on the       directly to this requirement.
secondary market, if an investor declines to
approve a deferral requested by a lender under
clause (ii), the Administrator shall exercise the
authority to purchase the loan so that the
impacted borrower may receive a deferral for a
period of not less than 6 months, including
payment of principal, interest, and fees, and not
more than 1 year.

Section 1102(a)(2)(M)(iv) GUIDANCE.—Not later We did not identify any requirements in the             We did not identify any FAQ that related directly
than 30 days after the date of enactment of this Interim Final Rules issued to date that related      to this requirement.
paragraph, the Administrator shall provide       directly to this requirement.
guidance to lenders under this paragraph on the
deferment process described in this
subparagraph.




                                                                            32
            CARES Act Requirement                                  Interim Final Rule                        Related Frequently Asked Questions


Section 1102(a)(2)(N) SECONDARY MARKET             IFR1 Section III(4)b. Are there any fee waivers?    FAQ 30: Can a lender sell a PPP loan into the
SALES.—A covered loan shall be eligible to be sold                                                     secondary market?
in the secondary market consistent with this         iv. There will be no fee payable to SBA for any
subsection. The Administrator may not collect any guarantee sold into the secondary market.             Answer: Yes. A PPP loan may be sold into the
fee for any guarantee sold into the secondary                                                           secondary market at any time after the loan is fully
market under this subparagraph.                    IFR1 Section III(4)d. Can PPP loans be sold into     disbursed. A secondary market sale of a PPP loan
                                                   the secondary market?                                does not require SBA approval. A PPP loan sold
                                                                                                        into the secondary market is 100% SBA
                                                     Yes. A PPP loan may be sold on the secondary       guaranteed. A PPP loan may be sold on the
                                                   market after the loan is fully disbursed. A PPP loan secondary market at a premium or a discount to
                                                   may be sold on the secondary market at a             par value.
                                                   premium or a discount to par value. SBA will issue
                                                   guidance regarding any advance purchase for
                                                   loans sold in the secondary market.




                                                                            33
            CARES Act Requirement                                  Interim Final Rule                     Related Frequently Asked Questions


Section 1102(a)(2)(O) REGULATORY CAPITAL           We did not identify any requirements in the       We did not identify any FAQ that related directly
REQUIREMENTS.—                                     Interim Final Rules issued to date that related   to this requirement.
  ‘‘(i) RISK WEIGHT.—With respect to the           directly to this requirement.
 appropriate Federal banking agencies or the
 National Credit Union Administration Board
 applying capital requirements under their
 respective risk-based capital requirements, a
 covered loan shall receive a risk weight of zero
 percent.
  ‘‘(ii) TEMPORARY RELIEF FROM TDR
 DISCLOSURES.—Notwithstanding any other
 provision of law, an insured depository
 institution or an insured credit union that
 modifies a covered loan in relation to COVID–19-
 related difficulties in a troubled debt
 restructuring on or after March 13, 2020, shall
 not be required to comply with the Financial
 Accounting Standards Board Accounting
 Standards Codification Subtopic 310–40
 (‘Receivables – Troubled Debt Restructurings by
 Creditors’) for purposes of compliance with the
 requirements of the Federal Deposit Insurance
 Act (12 U.S.C. 1811 et seq.), until such time and
 under such circumstances as the appropriate
 Federal banking agency or the National Credit
 Union Administration Board, as applicable,
 determines appropriate.




                                                                           34
            CARES Act Requirement                                   Interim Final Rule                         Related Frequently Asked Questions


Section 1102(a)(2)(P) REIMBURSEMENT FOR             IFR1 Section III(3)d. What fees will lenders be       We did not identify any FAQ that related directly
PROCESSING.—                                        paid?                                                 to this requirement.
  ‘‘(i) IN GENERAL.—The Administrator shall
 reimburse a lender authorized to make a covered SBA will pay lenders fees for processing PPP loans
 loan at a rate, based on the balance of the        in the following amounts:
 financing outstanding at the time of                 i. Five (5) percent for loans of not more than
 disbursement of the covered loan, of—                $350,000;
     ‘‘(I) 5 percent for loans of not more than       ii. Three (3) percent for loans of more than
   $350,000;                                          $350,000 and less than $2,000,000; and
     ‘‘(II) 3 percent for loans of more than          iii. One (1) percent for loans of at least
   $350,000 and less than $2,000,000; and             $2,000,000.
     ‘‘(III) 1 percent for loans of not less than
   $2,000,000.                                      IFR1 Section III(4)c. Who pays the fee to an agent
  ‘‘(ii) FEE LIMITS.—An agent that assists an       who assists a borrower?
 eligible recipient to prepare an application for a
 covered loan may not collect a fee in excess of      Agent fees will be paid by the lender out of the
 the limits established by the Administrator.       fees the lender receives from SBA. Agents may not
  ‘‘(iii) TIMING.—A reimbursement described in collect fees from the borrower or be paid out of
 clause (i) shall be made not later than 5 days     the PPP loan proceeds. The total amount that an
 after the disbursement of the covered loan.        agent may collect from the lender for assistance in
                                                    preparing an application for a PPP loan (including
                                                    referral to the lender) may not exceed:
                                                      i. One (1) percent for loans of not more than
                                                      $350,000;
                                                      ii. 0.50 percent for loans of more than $350,000
                                                      and less than $2 million; and
                                                      iii. 0.25 percent for loans of at least $2 million.

                                                      The Act authorizes the Administrator to establish
                                                    limits on agent fees. The Administrator, in
                                                    consultation with the Secretary, determined that
                                                    the agent fee limits set forth above are reasonable

                                                                             35
  CARES Act Requirement                        Interim Final Rule                  Related Frequently Asked Questions


(Continued from previous page)   based upon the application requirements and the      (Continued from previous page)
                                 fees that lenders receive for making PPP loans.




                                                       36
            CARES Act Requirement                                  Interim Final Rule                       Related Frequently Asked Questions


Section 1102(a)(2)(P)(iv) SENSE OF THE            IFR1 Section III(2)m. Is the PPP “first-come, first- We did not identify any FAQ that related directly
SENATE.—It is the sense of the Senate that the    served?”                                             to this requirement.
Administrator should issue guidance to lenders
and agents to ensure that the processing and      Yes.
disbursement of covered loans prioritizes small
business concerns and entities in underserved and
rural markets, including veterans and members of
the military community, small business concerns
owned and controlled by socially and
economically disadvantaged individuals (as
defined in section 8(d)(3)(C)), women, and
businesses in operation for less than 2 years.

Note: This citation is the same as 637(d)(3)( C).




                                                                           37
            CARES Act Requirement                                  Interim Final Rule                       Related Frequently Asked Questions


Section 1102(a)(2)(Q) DUPLICATION.—Nothing in IFR1 Section III(2)(r)vii. How can PPP loans be          We did not identify any FAQ that related directly
this paragraph shall prohibit a recipient of an   used?                                                to this requirement.
economic injury disaster loan made under
subsection (b)(2) during the period beginning on Refinancing an SBA EIDL loan made between
January 31, 2020 and ending on the date on which January 31, 2020 and April 3, 2020. If you received
covered loans are made available that is for a    an SBA EIDL loan from January 31, 2020 through
purpose other than paying payroll costs and other April 3, 2020, you can apply for a PPP loan. If your
obligations described in subparagraph (F) from    EIDL loan was not used for payroll costs, it does
receiving assistance under this paragraph.        not affect your eligibility for a PPP loan. If your
                                                  EIDL loan was used for payroll costs, your PPP
                                                  loan must be used to refinance your EIDL loan.
Section 1102(a)(2)(R) WAIVER OF PREPAYMENT
PENALTY.—Notwithstanding any other provision
of law, there shall be no prepayment penalty for
any payment made on a covered loan.’’.




                                                                           38
            CARES Act Requirement                                   Interim Final Rule                        Related Frequently Asked Questions


Section 1102(b) COMMITMENTS FOR 7(A)                IFR1 Section III.(1) General- SBA is authorized to   We did not identify any FAQ that related directly
LOANS.—During the period beginning on               guarantee loans under the PPP through June 30,       to this requirement.
February 15, 2020 and ending on June 30, 2020— 2020. Congress authorized a program level of
 (1) the amount authorized for commitments for $349,000,000,000 to provide guaranteed loans
 general business loans authorized under section under this new 7(a) program.
 7(a) of the Small Business Act (15 U.S.C. 636(a)),
 including loans made under paragraph (36) of
 such section, as added by subsection (a), shall be
 $349,000,000,000; and




                                                                            39


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