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Home Source documents U.S. Department of the Treasury, Paycheck Protection Program: "Interim Final Rule on Extension of Limited Safe Harbor with Respect to Certification Concerning Need for PPP Loan Reques"

U.S. Department of the Treasury, Paycheck Protection Program: "Interim Final Rule on Extension of Limited Safe Harbor with Respect to Certification Concerning Need for PPP Loan Reques"

Summary

An interim final rule of the U.S. Small Business Administration published in the Federal Register on Tuesday, May 19, 2020 (Docket Number SBA–2020–0026), on extension of the limited safe harbor with respect to certification concerning need for a PPP loan request. It extends from May 7, 2020 to May 14, 2020 the date by which a borrower that repays a PPP loan in full will be deemed by SBA to have made the required certification in good faith. Because of that extension, SBA moves the deadline for the initial SBA Form 1502 submission from May 18, 2020 to May 22, 2020. The rule is effective May 19, 2020, with comments due on or before June 18, 2020, and the page also carries the rule's compliance statements on Executive Orders and the Regulatory Flexibility Act.

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“U.S. Department of the Treasury, Paycheck Protection Program: ‘Interim Final Rule on Extension of Limited Safe Harbor with Respect to Certification Concerning Need for PPP Loan Reques.’” Original at home.treasury.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/u-s-department-of-the-treasury-paycheck-protection-program-interim-fin-5fe24de304/, SHA-256 d798561c2893219ec669a3601df6adb4757a0ce9c18fe513103415224a3432f3.

Full text

                         Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations                                         29845

     13563, and is considered a major rule                   small entities. The requirement to                    Protection Program was established
     under the Congressional Review Act.                     conduct a regulatory impact analysis                  under the Coronavirus Aid, Relief, and
     SBA, however, is proceeding under the                   does not apply if the head of the agency              Economic Security Act (CARES Act or
     emergency provision at Executive Order                  ‘‘certifies that the rule will not, if                the Act). This interim final rule revises
     12866 Section 6(a)(3)(D) based on the                   promulgated, have a significant                       the interim final rule posted on April
     need to move expeditiously to mitigate                  economic impact on a substantial                      24, 2020, by extending the date by
     the current economic conditions arising                 number of small entities.’’ 5 U.S.C.                  which certain Paycheck Protection
     from the COVID–19 emergency. This                       605(b). The agency must, however,                     Program borrowers may repay their
     rule’s designation under Executive                      publish the certification in the Federal              loans from May 7, 2020 to May 14, 2020,
     Order 13771 will be informed by public                  Register at the time of publication of the            in order to avail themselves of a safe
     comment.                                                rule, ‘‘along with a statement providing              harbor with respect to a certification
                                                             the factual basis for such certification.’’           required by the Act, and makes other
     Executive Order 12988
                                                             If the agency head has not waived the                 conforming changes. This interim final
       SBA has drafted this rule, to the                     requirements for a regulatory flexibility             rule supplements SBA’s implementation
     extent practicable, in accordance with                  analysis in accordance with the RFA’s                 of the Act and requests public comment.
     the standards set forth in section 3(a)                 waiver provision, and no other RFA                    DATES:
     and 3(b)(2) of Executive Order 12988, to                exception applies, the agency must                       Effective date: This rule is effective
     minimize litigation, eliminate                          prepare the regulatory flexibility                    May 19, 2020.
     ambiguity, and reduce burden. The rule                  analysis and publish it in the Federal                   Applicability date: This interim final
     has no preemptive or retroactive effect.                Register at the time of promulgation or,              rule applies to borrowers who applied
     Executive Order 13132                                   if the rule is promulgated in response to             for loans under the Paycheck Protection
                                                             an emergency that makes timely                        Program.
       SBA has determined that this rule                     compliance impracticable, within 180                     Comment date: Comments must be
     will not have substantial direct effects                days of publication of the final rule. 5              received on or before June 18, 2020.
     on the States, on the relationship                      U.S.C. 604(a), 608(b). Rules that are                 ADDRESSES: You may submit comments,
     between the National Government and                     exempt from notice and comment are                    identified by number SBA–2020–0026
     the States, or on the distribution of                   also exempt from the RFA requirements,                through the Federal eRulemaking Portal:
     power and responsibilities among the                    including conducting a regulatory                     http://www.regulations.gov. Follow the
     various layers of government. Therefore,                flexibility analysis, when among other                instructions for submitting comments.
     SBA has determined that this rule has                   things the agency for good cause finds                SBA will post all comments on
     no federalism implications warranting                   that notice and public procedure are                  www.regulations.gov. If you wish to
     preparation of a federalism assessment.                 impracticable, unnecessary, or contrary               submit confidential business
     Paperwork Reduction Act, 44 U.S.C.                      to the public interest. SBA Office of                 information (CBI) as defined in the User
     Chapter 35                                              Advocacy guide: How to Comply with                    Notice at www.regulations.gov, please
                                                             the Regulatory Flexibility Act, Ch.1. p.9.            send an email to ppp-ifr@sba.gov.
       SBA has determined that this rule
                                                             Accordingly, SBA is not required to                   Highlight the information that you
     will not impose new or modify existing
                                                             conduct a regulatory flexibility analysis.            consider to be CBI and explain why you
     recordkeeping or reporting requirements
     under the Paperwork Reduction Act.                                                                            believe SBA should hold this
                                                             Jovita Carranza,
                                                                                                                   information as confidential. SBA will
     Regulatory Flexibility Act (RFA)                        Administrator.
                                                                                                                   review the information and make the
                                                             [FR Doc. 2020–10658 Filed 5–18–20; 8:45 am]
        The Regulatory Flexibility Act (RFA)                                                                       final determination whether it will
                                                             BILLING CODE P                                        publish the information.
     generally requires that when an agency
     issues a proposed rule, or a final rule                                                                       FOR FURTHER INFORMATION CONTACT: A
     pursuant to section 553(b) of the APA or                SMALL BUSINESS ADMINISTRATION                         Call Center Representative at 833–572–
     another law, the agency must prepare a                                                                        0502, or the local SBA Field Office; the
     regulatory flexibility analysis that meets              13 CFR Part 120                                       list of offices can be found at https://
     the requirements of the RFA and                                                                               www.sba.gov/tools/local-assistance/
                                                             [Docket Number SBA–2020–0026]                         districtoffices.
     publish such analysis in the Federal
     Register. 5 U.S.C. 603, 604. Specifically,              RIN 3245–AH41                                         SUPPLEMENTARY INFORMATION:
     the RFA normally requires agencies to
     describe the impact of a rulemaking on                  Business Loan Program Temporary                       I. Background Information
     small entities by providing a regulatory                Changes; Paycheck Protection                             On March 13, 2020, President Trump
     impact analysis. Such analysis must                     Program—Requirements—Extension                        declared the ongoing Coronavirus
     address the consideration of regulatory                 of Limited Safe Harbor With Respect to                Disease 2019 (COVID–19) pandemic of
     options that would lessen the economic                  Certification Concerning Need for PPP                 sufficient severity and magnitude to
     effect of the rule on small entities. The               Loan Request                                          warrant an emergency declaration for all
     RFA defines a ‘‘small entity’’ as (1) a                 AGENCY: U.S. Small Business                           States, territories, and the District of
     proprietary firm meeting the size                       Administration.                                       Columbia. With the COVID–19
     standards of the Small Business                         ACTION: Interim final rule.                           emergency, many small businesses
     Administration (SBA); (2) a nonprofit                                                                         nationwide are experiencing economic
     organization that is not dominant in its                SUMMARY: On April 24, 2020, the U.S.                  hardship as a direct result of the
     field; or (3) a small government                        Small Business Administration (SBA)                   Federal, State, tribal, and local public
     jurisdiction with a population of less                  posted an interim final rule relating to              health measures that are being taken to
     than 50,000. 5 U.S.C. 601(3)–(6). Except                promissory notes, authorizations,                     minimize the public’s exposure to the
     for such small government jurisdictions,                affiliation, and eligibility in connection            virus. These measures, some of which
     neither State nor local governments are                 with the implementation of a temporary                are government-mandated, are being
     ‘‘small entities.’’ Similarly, for purposes             new program, titled the ‘‘Paycheck                    implemented nationwide and include
     of the RFA, individual persons are not                  Protection Program.’’ The Paycheck                    the closures of restaurants, bars, and


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     29846               Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations

     gyms. In addition, based on the advice                  effective date provided in the                        Limited Safe Harbor With Respect to
     of public health officials, other                       Administrative Procedure Act.                         Certification Concerning Need for PPP
     measures, such as keeping a safe                           Although this interim final rule is                Loan Request
     distance from others or even stay-at-                   effective immediately, comments are                      Consistent with section 1102 of the
     home orders, are being implemented,                     solicited from interested members of the              CARES Act, the Borrower Application
     resulting in a dramatic decrease in                     public on all aspects of the interim final            Form requires PPP applicants to certify
     economic activity as the public avoids                  rule, including section III below. These              that ‘‘[c]urrent economic uncertainty
     malls, retail stores, and other                         comments must be submitted on or                      makes this loan request necessary to
     businesses.                                                                                                   support the ongoing operations of the
                                                             before June 18, 2020. SBA will consider
       On March 27, 2020, the President
                                                             these comments and the need for                       Applicant.’’ Any borrower that applied
     signed the Coronavirus Aid, Relief, and
                                                             making any revisions as a result of these             for a PPP loan and repays the loan in
     Economic Security Act (the CARES Act
                                                             comments.                                             full by May 14, 2020 will be deemed by
     or the Act) (Pub. L. 116–136) to provide
                                                                                                                   SBA to have made the required
     emergency assistance and health care                    III. Paycheck Protection Program                      certification in good faith. The
     response for individuals, families, and                 Requirements for Extension of Safe                    Administrator, in consultation with the
     businesses affected by the coronavirus                  Harbor With Respect to Certification                  Secretary, determined that this safe
     pandemic. The Small Business                            Concerning Need for PPP Loan Request                  harbor is necessary and appropriate to
     Administration (SBA) received funding
                                                                The CARES Act was enacted to                       ensure that borrowers promptly repay
     and authority through the Act to modify
     existing loan programs and establish a                  provide immediate assistance to                       PPP loan funds that the borrower
     new loan program to assist small                        individuals, families, and organizations              obtained based on a misunderstanding
     businesses nationwide adversely                         affected by the COVID–19 emergency.                   or misapplication of the required
     impacted by the COVID–19 emergency.                     Among the provisions contained in the                 certification standard.
                                                                                                                      The extension of the safe harbor
     Section 1102 of the Act temporarily                     CARES Act are provisions authorizing
                                                                                                                   requires a corresponding date change to
     permits SBA to guarantee 100 percent of                 SBA to temporarily guarantee loans
                                                                                                                   the interim final rule that SBA posted
     7(a) loans under a new program titled                   under the Paycheck Protection Program
                                                                                                                   on its website on April 28, 2020, which
     the ‘‘Paycheck Protection Program.’’                    (PPP). Loans under the PPP are 100
     Section 1106 of the Act provides for                                                                          was published in the Federal Register
                                                             percent guaranteed by SBA, and the full
     forgiveness of up to the full principal                                                                       on May 4, 2020 (85 FR 26321), regarding
                                                             principal amount of the loans and any
     amount of qualifying loans guaranteed                                                                         PPP loan disbursements. Specifically,
                                                             accrued interest may qualify for loan
     under the Paycheck Protection Program.                                                                        Part III.1.b. provides that Lenders must
                                                             forgiveness. The Act requires each
     On April 24, 2020, the President signed                                                                       electronically upload SBA Form 1502
                                                             applicant applying for a PPP loan to
     the Paycheck Protection Program and                                                                           information within 20 calendar days
                                                             certify ‘‘that the uncertainty of current
     Health Care Enhancement Act (Pub. L.                                                                          after a PPP loan is approved or, for loans
                                                             economic conditions makes necessary
     116–139), which provided additional                                                                           approved before the availability of the
                                                             the loan request to support the ongoing
     funding and authority for the PPP.                                                                            updated SBA Form 1502 reporting
                                                             obligations’’ of the applicant. On April
                                                                                                                   process, by May 18, 2020. 85 FR 26321,
     II. Comments and Immediate Effective                    24, 2020, SBA posted on its website an
                                                                                                                   26323. Because of the extension of the
     Date                                                    interim final rule (the Fourth PPP
                                                                                                                   safe harbor deadline, SBA is extending
                                                             Interim Final Rule), which also was
        This interim final rule is effective                                                                       the deadline for the submission of the
                                                             published in the Federal Register on
     without advance notice and public                                                                             initial SBA Form 1502 from May 18,
                                                             April 28, 2020 (85 FR 23450), to provide
     comment because section 1114 of the                                                                           2020 to May 22, 2020.
                                                             relief to PPP borrowers who applied for
     Act authorizes SBA to issue regulations                 and received PPP loans based on a                     Additional Information
     to implement Title I of the Act without                 misunderstanding or misapplication of
     regard to notice requirements. In                                                                               SBA may provide further guidance, if
                                                             the required certification standard. The              needed, through SBA notices that will
     addition, SBA has determined that there                 Fourth PPP Interim Final Rule provides
     is good cause for dispensing with                                                                             be posted on SBA’s website at
                                                             that any borrower that applied for a PPP              www.sba.gov. Questions on the
     advance public notice and comment on                    loan and repays the loan in full by May
     the ground that it would be contrary to                                                                       Paycheck Protection Program may be
                                                             7, 2020, will be deemed by SBA to have                directed to the Lender Relations
     the public interest. Specifically, SBA, in              made the required certification in good
     consultation with the Department of the                                                                       Specialist in the local SBA Field Office.
                                                             faith. SBA, in consultation with the                  The local SBA Field Office may be
     Treasury, intends to issue additional                   Department of the Treasury, will issue
     guidance with regard to the safe harbor                                                                       found at https://www.sba.gov/tools/
                                                             additional guidance before May 14,                    local-assistance/districtoffices.
     and extending the safe harbor deadline
                                                             2020 concerning how SBA will review
     from May 7 to May 14 will afford                                                                              Compliance With Executive Orders
                                                             the required certification to help PPP
     Paycheck Protection Program borrowers                                                                         12866, 12988, 13132, 13563, and 13771,
                                                             borrowers evaluate whether they may
     time to review the forthcoming SBA                                                                            the Paperwork Reduction Act (44 U.S.C.
                                                             have misunderstood or misapplied the
     guidance and decide whether to avail                                                                          Ch. 35), and the Regulatory Flexibility
                                                             statutory certification standard.1 Based
     themselves of the safe harbor. SBA                                                                            Act (5 U.S.C. 601–612).
                                                             on this upcoming guidance, SBA, in
     previously announced this intended
                                                             consultation with the Department of the               Executive Orders 12866, 13563, and
     extension in nonbinding guidance
                                                             Treasury, determined that it is necessary             13771
     published on May 5, 2020. Advance
                                                             and appropriate to extend the safe
     notice and public comment would                                                                                 This interim final rule is
                                                             harbor deadline for repaying PPP loans
     defeat the purpose of this interim final                                                                      economically significant for the
                                                             from May 7, 2020 to May 14, 2020.
     rule given the timeline for the existing                                                                      purposes of Executive Orders 12866 and
     safe harbor and short-term, temporary                     1 This guidance is available at https://
                                                                                                                   13563, and is considered a major rule
     nature of this program. These same                      www.sba.gov/sites/default/files/2020-05/Paycheck-
                                                                                                                   under the Congressional Review Act.
     reasons provide good cause for SBA to                   Protection-Program-Frequently-Asked-Questions_        SBA, however, is proceeding under the
     dispense with the 30-day delayed                        05%2013%2020_2.pdf.                                   emergency provision at Executive Order


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                         Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations                                          29847

     12866 Section 6(a)(3)(D) based on the                   promulgated, have a significant                       relief to small businesses nationwide
     need to move expeditiously to mitigate                  economic impact on a substantial                      adversely impacted by the Coronavirus
     the current economic conditions arising                 number of small entities.’’ 5 U.S.C.                  Disease 2019 (COVID–19). SBA posted
     from the COVID–19 emergency. This                       605(b). The agency must, however,                     additional interim final rules on April 3,
     rule’s designation under Executive                      publish the certification in the Federal              2020, April 14, 2020, April 24, 2020,
     Order 13771 will be informed by public                  Register at the time of publication of the            April 28, 2020, April 30, 2020, May 5,
     comment.                                                rule, ‘‘along with a statement providing              2020, and May 8, 2020, and the
                                                             the factual basis for such certification.’’           Department of the Treasury posted an
     Executive Order 12988                                                                                         additional interim final rule on April
                                                             If the agency head has not waived the
       SBA has drafted this rule, to the                     requirements for a regulatory flexibility             28, 2020. This interim final rule
     extent practicable, in accordance with                  analysis in accordance with the RFA’s                 supplements the previously posted
     the standards set forth in section 3(a)                 waiver provision, and no other RFA                    interim final rules by providing
     and 3(b)(2) of Executive Order 12988, to                exception applies, the agency must                    guidance on additional eligibility
     minimize litigation, eliminate                          prepare the regulatory flexibility                    requirements for certain electric
     ambiguity, and reduce burden. The rule                  analysis and publish it in the Federal                cooperatives, and requests public
     has no preemptive or retroactive effect.                Register at the time of promulgation or,              comment.
     Executive Order 13132                                   if the rule is promulgated in response to             DATES:
                                                             an emergency that makes timely                           Effective date: This rule is effective
       SBA has determined that this rule                     compliance impracticable, within 180                  May 19, 2020.
     will not have substantial direct effects                days of publication of the final rule. 5                 Applicability date: This interim final
     on the States, on the relationship                      U.S.C. 604(a), 608(b). Rules that are                 rule applies to applications submitted
     between the National Government and                     exempt from notice and comment are                    under the Paycheck Protection Program
     the States, or on the distribution of                   also exempt from the RFA requirements,                through June 30, 2020, or until funds
     power and responsibilities among the                    including conducting a regulatory                     made available for this purpose are
     various layers of government. Therefore,                flexibility analysis, when among other                exhausted.
     SBA has determined that this rule has                   things the agency for good cause finds                   Comment date: Comments must be
     no federalism implications warranting                   that notice and public procedure are                  received on or before June 18, 2020.
     preparation of a federalism assessment.                 impracticable, unnecessary, or contrary               ADDRESSES: You may submit comments,
     Paperwork Reduction Act, 44 U.S.C.                      to the public interest. SBA Office of                 identified by number SBA–2020–0029
     Chapter 35                                              Advocacy guide: How to Comply with                    through the Federal eRulemaking Portal:
                                                             the Regulatory Flexibility Act, Ch.1. p.9.            http://www.regulations.gov. Follow the
       SBA has determined that this rule
                                                             Accordingly, SBA is not required to                   instructions for submitting comments.
     will not impose new or modify existing
                                                             conduct a regulatory flexibility analysis.            SBA will post all comments on
     recordkeeping or reporting requirements
     under the Paperwork Reduction Act.                                                                            www.regulations.gov. If you wish to
                                                             Jovita Carranza,
                                                                                                                   submit confidential business
     Regulatory Flexibility Act (RFA)                        Administrator.
                                                                                                                   information (CBI) as defined in the User
                                                             [FR Doc. 2020–10649 Filed 5–18–20; 8:45 am]
        The Regulatory Flexibility Act (RFA)                                                                       Notice at www.regulations.gov, please
                                                             BILLING CODE P                                        send an email to ppp-ifr@sba.gov.
     generally requires that when an agency
     issues a proposed rule, or a final rule                                                                       Highlight the information that you
     pursuant to section 553(b) of the APA or                                                                      consider to be CBI and explain why you
                                                             SMALL BUSINESS ADMINISTRATION
     another law, the agency must prepare a                                                                        believe SBA should hold this
     regulatory flexibility analysis that meets              13 CFR Parts 120 and 121                              information as confidential. SBA will
     the requirements of the RFA and                                                                               review the information and make the
                                                             [Docket Number SBA–2020–0029]                         final determination whether it will
     publish such analysis in the Federal
     Register. 5 U.S.C. 603, 604. Specifically,              RIN 3245–AH43                                         publish the information.
     the RFA normally requires agencies to                                                                         FOR FURTHER INFORMATION CONTACT: A
     describe the impact of a rulemaking on                  Business Loan Program Temporary                       Call Center Representative at 833–572–
     small entities by providing a regulatory                Changes; Paycheck Protection                          0502, or the local SBA Field Office; the
     impact analysis. Such analysis must                     Program—Eligibility of Certain Electric               list of offices can be found at https://
     address the consideration of regulatory                 Cooperatives                                          www.sba.gov/tools/local-assistance/
     options that would lessen the economic                  AGENCY: U.S. Small Business                           districtoffices.
     effect of the rule on small entities. The               Administration.                                       SUPPLEMENTARY INFORMATION:
     RFA defines a ‘‘small entity’’ as (1) a                 ACTION: Interim final rule.
     proprietary firm meeting the size                                                                             I. Background Information
     standards of the Small Business                         SUMMARY: On April 2, 2020, the U.S.                      On March 13, 2020, President Trump
     Administration (SBA); (2) a nonprofit                   Small Business Administration (SBA)                   declared the ongoing Coronavirus
     organization that is not dominant in its                posted an interim final rule announcing               Disease 2019 (COVID–19) pandemic of
     field; or (3) a small government                        the implementation of the Coronavirus                 sufficient severity and magnitude to
     jurisdiction with a population of less                  Aid, Relief, and Economic Security Act                warrant an emergency declaration for all
     than 50,000. 5 U.S.C. 601(3)–(6). Except                (CARES Act). The CARES Act                            States, territories, and the District of
     for such small government jurisdictions,                temporarily adds a new program, titled                Columbia. With the COVID–19
     neither State nor local governments are                 the ‘‘Paycheck Protection Program,’’ to               emergency, many small businesses
     ‘‘small entities.’’ Similarly, for purposes             the SBA’s 7(a) Loan Program. The                      nationwide are experiencing economic
     of the RFA, individual persons are not                  CARES Act also provides for forgiveness               hardship as a direct result of the
     small entities. The requirement to                      of up to the full principal amount of                 Federal, State, tribal, and local public
     conduct a regulatory impact analysis                    qualifying loans guaranteed under the                 health measures that are being taken to
     does not apply if the head of the agency                Paycheck Protection Program (PPP). The                minimize the public’s exposure to the
     ‘‘certifies that the rule will not, if                  PPP is intended to provide economic                   virus. These measures, some of which


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