Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations 38301 the applicant’s or co-applicant’s day delayed effective date for SMALL BUSINESS ADMINISTRATION ethnicity, race, sex, and age as ‘‘not substantive rules under section 553(d) applicable’’ if the applicant or co- of the Administrative Procedure Act.7 13 CFR Part 120 applicant is not a natural person. For Therefore, this rule is effective on June these reasons, the Bureau will not count [Docket No. SBA–2020–0039] 26, 2020, the same date that it is first-lien originations reported in HMDA published in the Federal Register. RIN 3245–AH53 data for which both the applicant’s and co-applicant’s ethnicity, race, sex, and III. Regulatory Requirements Business Loan Program Temporary age all are reported as follows: (1) The Changes; Paycheck Protection This rule articulates the Bureau’s applicant’s ethnicity is reported as ‘‘Not Program—Additional Eligibility interpretation of Regulation Z and TILA. applicable’’ (HMDA Code 4); (2) the Revisions to First Interim Final Rule applicant’s race is reported as ‘‘Not As an interpretive rule, it is exempt applicable’’ (HMDA Code 7); (3) the from the notice-and-comment AGENCY: U.S. Small Business applicant’s sex is reported as ‘‘Not rulemaking requirements of the Administration. applicable’’ (HMDA Code 4); (4) the Administrative Procedure Act.8 Because ACTION: Interim final rule. applicant’s age is reported as ‘‘Not no notice of proposed rulemaking is applicable’’ (HMDA Code 8888); (5) the required, the Regulatory Flexibility Act SUMMARY: On April 2, 2020, the U.S. co-applicant’s ethnicity is reported as does not require an initial or final Small Business Administration (SBA) ‘‘Not applicable’’ (HMDA Code 4) or regulatory flexibility analysis.9 posted on its website an interim final ‘‘No co-applicant’’ (HMDA Code 5); (6) The Bureau has determined that this rule relating to the implementation of the co-applicant’s race is reported as interpretive rule does not impose any sections 1102 and 1106 of the ‘‘Not applicable’’ (HMDA Code 7) or Coronavirus Aid, Relief, and Economic new requirements or revise any existing ‘‘No co-applicant’’ (HMDA Code 8); (7) Security Act (CARES Act or the Act) recordkeeping, reporting, or disclosure the co-applicant’s sex is reported as (published in the Federal Register on requirements on covered entities or ‘‘Not applicable’’ (HMDA Code 4) or April 15, 2020). Section 1102 of the Act members of the public that would be temporarily adds a new product, titled ‘‘No co-applicant’’ (HMDA Code 5); and collections of information requiring (8) the co-applicant’s age is reported as the ‘‘Paycheck Protection Program,’’ to approval by the Office of Management the U.S. Small Business ‘‘Not applicable’’ (HMDA Code 8888) or and Budget under the Paperwork Administration’s (SBA’s) 7(a) Loan ‘‘No co-applicant’’ (HMDA Code 9999). Reduction Act.10 Program. Subsequently, SBA issued a The underserved counties list, using the HMDA data described above, can be IV. Congressional Review Act number of interim final rules found on the Bureau’s public website at implementing the Paycheck Protection https://www.consumerfinance.gov/ Pursuant to the Congressional Review Program. On June 12, 2020, SBA posted policy-compliance/guidance/mortgage- Act,11 the Bureau will submit a report on its website an interim final rule resources/rural-and-underserved- containing this interpretive rule and revising the interim final rule published counties-list/, where, consistent with other required information to the United in the Federal Register on April 15, past practice, the list is made available States Senate, the United States House 2020 by changing the eligibility along with historical lists. of Representatives, and the Comptroller requirement related to felony General of the United States prior to the convictions of applicants or owners of C. Legal Authority the applicant. This interim final rule rule’s published effective date. The The Bureau is issuing this interpretive Office of Information and Regulatory further revises SBA’s interim final rule rule based on its authority to interpret Affairs has designated this interpretive published in the Federal Register on Regulation Z, including under section rule as not a ‘‘major rule’’ as defined by April 15, 2020, by further changing that 1022(b)(1) of the Dodd-Frank Act, which eligibility requirement. 5 U.S.C. 804(2). authorizes guidance as may be DATES: necessary or appropriate to enable the V. Signing Authority Effective date: The provisions in this Bureau to administer and carry out the interim final rule are effective June 24, purposes and objectives of Federal The Director of the Bureau, having 2020. consumer financial laws.5 reviewed and approved this document, Comment date: Comments must be By operation of TILA section 130(f), is delegating the authority to received on or before July 27, 2020. no provision of TILA sections 130, electronically sign this document to ADDRESSES: You may submit comments, 108(b), 108(c), 108(e), or 112 imposing Laura Galban, a Bureau Federal Register identified by number SBA–2020–0039, any liability applies to any act done or Liaison, for purposes of publication in through the Federal eRulemaking Portal: omitted in good faith in conformity with the Federal Register. http://www.regulations.gov. Follow the this interpretive rule, notwithstanding Dated: June 23, 2020. instructions for submitting comments. that after such act or omission has SBA will post all comments on Laura Galban, occurred, the interpretive rule is www.regulations.gov. If you wish to amended, rescinded, or determined by Federal Register Liaison, Bureau of Consumer Financial Protection. submit confidential business judicial or other authority to be invalid information (CBI) as defined in the User for any reason.6 [FR Doc. 2020–13801 Filed 6–25–20; 8:45 am] Notice at www.regulations.gov, please BILLING CODE 4810–AM–P II. Effective Date send an email to ppp-ifr@sba.gov. Highlight the information that you Because this rule is solely jbell on DSKJLSW7X2PROD with RULES consider to be CBI and explain why you interpretive, it is not subject to the 30- 7 5 U.S.C. 553(d). believe SBA should hold this 5 12 U.S.C. 5512(b)(1). The relevant provisions of 8 5 U.S.C. 553(b). information as confidential. SBA will Regulation Z form part of Federal consumer 9 5 U.S.C. 603(a), 604(a). review the information and make the financial law. 12 U.S.C. 5481(12)(O), (14). 10 44 U.S.C. 3501 et seq. final determination whether it will 6 15 U.S.C. 1640(f). 11 5 U.S.C. 801 et seq. publish the information. VerDate Sep<11>2014 16:24 Jun 25, 2020 Jkt 250001 PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 E:\FR\FM\26JNR1.SGM 26JNR1 38302 Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations FOR FURTHER INFORMATION CONTACT: A payments, and the forgiveness of PPP interim final rule posted on SBA’s Call Center Representative at 833–572– loans. website on June 12, 2020 and published 0502, or the local SBA Field Office; the in the Federal Register on June 18, 2020 II. Comments and Immediate Effective list of offices can be found at https:// (85 FR 36717). The First Interim Final Date www.sba.gov/tools/local-assistance/ Rule, as amended, should be interpreted districtoffices. This interim final rule is effective consistent with the frequently asked without advance notice and public questions (FAQs) regarding the PPP that SUPPLEMENTARY INFORMATION: comment because section 1114 of the are posted on SBA’s website 1 and the I. Background Information CARES Act authorizes SBA to issue other interim final rules issued On March 13, 2020, President Trump regulations to implement Title I of the regarding the PPP.2 declared the ongoing Coronavirus Act without regard to notice 1. Changes to the First Interim Final Disease 2019 (COVID–19) pandemic of requirements. In addition, SBA has Rule sufficient severity and magnitude to determined that there is good cause for dispensing with advance public notice Eligibility Requirements warrant an emergency declaration for all states, territories, and the District of and comment on the grounds that that The First Interim Final Rule provided, Columbia. With the COVID–19 it would be contrary to the public among other things, that a PPP loan will emergency, many small businesses interest. Specifically, advance public not be approved if an owner of 20 nationwide are experiencing economic notice and comment would defeat the percent or more of the equity of the hardship as a direct result of the purpose of this interim final rule given applicant has been convicted of a felony Federal, State, and local public health that SBA’s authority to guarantee PPP within the last five years. On June 12, measures that are being taken to loans expires on June 30, 2020. These 2020, the First Interim Final Rule was minimize the public’s exposure to the same reasons provide good cause for amended after the Administrator, in virus. These measures, some of which SBA to dispense with the 30-day consultation with the Secretary of the are government-mandated, have been delayed effective date provided in the Treasury (the Secretary), determined implemented nationwide and include Administrative Procedure Act (APA). that a shorter timeframe for felonies that the closures of restaurants, bars, and Although this interim final rule is do not involve fraud, bribery, gyms. In addition, based on the advice effective on or before date of filing, embezzlement, or a false statement in a of public health officials, other comments are solicited from interested loan application or an application for measures, such as keeping a safe members of the public on all aspects of federal financial assistance is more distance from others or even stay-at- the interim final rule, including section consistent with Congressional intent to home orders, have been implemented, III below. These comments must be provide relief to small businesses and resulting in a dramatic decrease in submitted on or before July 27, 2020. also promotes the important policies economic activity as the public avoids The SBA will consider these comments, underlying the First Step Act of 2018 malls, retail stores, and other comments received on the interim final (Pub. L. 115–391). businesses. rule posted on SBA’s website April 2, Upon further consideration, and in On March 27, 2020, the President 2020 (the First Interim Final Rule) and consultation with the Secretary, the signed the Coronavirus Aid, Relief, and published in the Federal Register on Administrator has determined that two Economic Security Act (the CARES Act April 15, 2020, comments received on additional modifications to the First or the Act) (Pub. L. 116–136) to provide the interim final rule posted on SBA’s Interim Final Rule are appropriate to emergency assistance and health care website June 12, 2020 and published in ensure a consistent approach to response for individuals, families, and the Federal Register on June 18, 2010, applicants with criminal histories. First, businesses affected by the coronavirus and the need for making any revisions the First Interim Final Rule provided pandemic. The Small Business as a result of these comments. that an applicant is ineligible for a PPP Administration (SBA) received funding III. Paycheck Protection Program— loan if an owner of 20 percent or more and authority through the Act to modify Additional Eligibility Revisions to First of the equity of the applicant is existing loan programs and establish a Interim Final Rule (85 FR 20811) presently subject to an indictment, new loan program to assist small criminal information, arraignment, or businesses nationwide adversely Overview other means by which formal criminal impacted by the COVID–19 emergency. The CARES Act was enacted to charges are brought in any jurisdiction. Section 1102 of the Act temporarily provide immediate assistance to The Administrator has determined that permits SBA to guarantee 100 percent of individuals, families, and businesses this restriction should be limited to 7(a) loans under a new program titled affected by the COVID–19 emergency. pending criminal charges for felony the ‘‘Paycheck Protection Program.’’ Among the provisions contained in the offenses, which aligns with the Section 1106 of the Act provides for CARES Act are provisions authorizing Administrator’s prior determination that forgiveness of up to the full principal SBA to temporarily guarantee loans only felony convictions (but not amount of qualifying loans guaranteed under a new 7(a) loan program titled the convictions for other types of offenses) under the Paycheck Protection Program. ‘‘Paycheck Protection Program.’’ Loans will limit an applicant’s eligibility for On April 24, 2020, the President guaranteed under the Paycheck the PPP, subject to the time periods signed the Paycheck Protection Program Protection Program (PPP) will be 100 specified above. Second, the First and Health Care Enhancement Act (Pub. percent guaranteed by SBA, and the full Interim Final Rule provided that an L. 116–139), which provided additional principal amount of the loans may applicant was ineligible for a PPP loan funding and authority for the PPP. On qualify for loan forgiveness. The if an owner of 20 percent or more of the equity of the applicant is on probation jbell on DSKJLSW7X2PROD with RULES June 5, 2020, the President signed the purpose of this interim final rule is to Paycheck Protection Program Flexibility make further changes to the First 1 See https://www.sba.gov/document/support-- Act of 2020 (Flexibility Act) (Pub. L. Interim Final Rule, posted on SBA’s faq-lenders-borrowers. 116–142), which changed provisions of website on April 2, 2020, and published 2 See https://www.sba.gov/funding-programs/ the PPP relating to the maturity of PPP in the Federal Register on April 15, loans/coronavirus-relief-options/paycheck- loans, the deferral of PPP loan 2020 (85 FR 20811), as amended by the protection-program. VerDate Sep<11>2014 16:24 Jun 25, 2020 Jkt 250001 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 E:\FR\FM\26JNR1.SGM 26JNR1 Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations 38303 or on parole. The Administrator has the CARES Act, PPP loans may only be Secretary, has determined that a longer determined that this restriction should forgiven in cases where borrowers can five-year limitation is appropriate for be limited to individuals whose document that the proceeds were felonies involving fraud, bribery, probation or parole commenced within expended in accordance with the embezzlement, or a false statement in a the time periods specified above—i.e., requirements of section 1106. In loan application or an application for within the last five years for any felony situations where the proceeds have not federal financial assistance because involving fraud, bribery, embezzlement, been used appropriately, and the loans, such felonies are most relevant to the or a false statement in a loan application accordingly, cannot be forgiven, the applicant’s business integrity and or an application for federal financial borrowers’ ability to repay the loans responsibility, and may indicate a assistance, and within the last one year remains an important consideration. In greater risk of potential misuse of PPP for other felonies. Applying these time addition, ineligibility for businesses loan funds. limitations to the probation and parole whose owners are currently incarcerated Each of the ineligible applicant restriction aligns with the will help prevent misuse of PPP loan categories described above has been Administrator’s prior determination to funds, irrespective of loan forgiveness formulated to reduce the risk of default apply the identical time limitations to considerations. and fraud in the PPP and to ensure that felony convictions. Moreover, aligning Under the First Interim Final Rule, as PPP loan funds are provided for small the time limitations applicable to these amended, an applicant is also ineligible businesses that will be able to support restrictions is consistent with if an owner of 20 percent or more of its jobs, consistent with Congressional Congressional intent to provide relief to equity is, for any felony, subject to an intent in the CARES Act. These small businesses and also promotes the indictment, criminal information, measures are particularly necessary in important policies underlying the First arraignment, or other means by which light of the structure of the PPP, in Step Act of 2018 (Pub. L. 115–391). This formal criminal charges are brought in which lenders are subject to relatively amendment does not affect the rule any jurisdiction. Individuals charged few underwriting obligations before regarding applicants that are presently with felonies are at risk of issuing loans that are 100 percent suspended, debarred, or proposed for imprisonment, which, as discussed guaranteed by SBA and that may be debarment, which remains effective. above, could place the creditworthiness subject to full forgiveness based on Therefore, Part III.2.b.iii. of the First of their businesses in question. documentation provided by the Interim Final Rule (85 FR 20811, 20812) Therefore, the Administrator, in borrower. While neither lenders nor is revised to read as follows: consultation with the Secretary, has SBA are conducting typical analysis of b. Could I be ineligible even if I meet determined that this limitation also the characteristics of PPP applicants, the the eligibility requirements in (a) above? remains appropriate to ensure that PPP measures described above are intended You are ineligible for a PPP loan if, for funds are not allocated to an applicant to mitigate the risk of default, fraud, or example: for which a recent felony charge may misuse of PPP loan funds intended to impair its ongoing business operations benefit small business employees and at * * * * * and therefore its ability to repay a PPP the same time balance that need with iii. An owner of 20 percent or more loan for reasons unrelated to the the need to assist in the rehabilitation of of the equity of the applicant is COVID–19 pandemic. felons, who are working to become presently incarcerated or, for any felony, Finally, under the First Interim Final presently subject to an indictment, responsible and productive members of Rule, as amended, an applicant is criminal information, arraignment, or society. ineligible if an owner of 20 percent or other means by which formal criminal more of its equity has been convicted of, 2. Additional Information charges are brought in any jurisdiction; pleaded guilty or nolo contendere to, or or has been convicted of, pleaded guilty SBA may provide further guidance, if commenced any form of parole or needed, through SBA notices which will or nolo contendere to, or commenced probation (including probation before any form of parole or probation be posted on SBA’s website at judgment) for, a felony involving fraud, www.sba.gov. Questions on the (including probation before judgment) bribery, embezzlement, or a false for, a felony involving fraud, bribery, Paycheck Protection Program may be statement in a loan application or an directed to the Lender Relations embezzlement, or a false statement in a application for federal financial loan application or an application for Specialist in the local SBA Field Office. assistance within the last five years or The local SBA Field Office may be federal financial assistance within the any other felony within the last year. last five years or any other felony within found at https://www.sba.gov/tools/ The Administrator, in consultation with the last year; or local-assistance/districtoffices. the Secretary, has determined that, in * * * * * order to ensure program integrity and Compliance With Executive Orders Under the First Interim Final Rule, as safeguard against misuse of PPP funds, 12866, 12988, 13132, 13563, and 13771, amended, an applicant is ineligible if an it remains appropriate to require that the Paperwork Reduction Act (44 U.S.C. owner of 20 percent or more of its applicants whose owners previously Ch. 35), and the Regulatory Flexibility equity is presently incarcerated. In were convicted of or pleaded guilty or Act (5 U.S.C. 601–612) considering this amended Interim Final nolo contendere to a felony offense have Rule the Administrator, in consultation Executive Orders 12866, 13563, and avoided a further felony charge with the Secretary, has determined that following conviction or incarceration for 13771 this restriction on eligibility remains a period of at least one year before This interim final rule is appropriate because the operations of obtaining a PPP loan. This interval economically significant for the small business concerns present a provides a reasonable level of assurance purposes of Executive Orders 12866 and jbell on DSKJLSW7X2PROD with RULES greater danger of becoming impaired that such applicants do not present 13563, and is considered a major rule when their owners are incarcerated. As unacceptable risks of re-incarceration under the Congressional Review Act. a result, they may have greater difficulty that could, as discussed above, SBA, however, is proceeding under the repaying their loans and present a undermine the ability of their emergency provision at Executive Order greater credit risk. Although PPP loans businesses to repay their PPP loans. The 12866 Section 6(a)(3)(D) based on the may be forgiven under section 1106 of Administrator, in consultation with the need to move expeditiously to mitigate VerDate Sep<11>2014 16:24 Jun 25, 2020 Jkt 250001 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 E:\FR\FM\26JNR1.SGM 26JNR1 38304 Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations the current economic conditions arising Register. 5 U.S.C. 603, 604. Specifically, SMALL BUSINESS ADMINISTRATION from the COVID–19 emergency. This the RFA normally requires agencies to rule’s designation under Executive describe the impact of a rulemaking on 13 CFR Part 120 Order 13771 will be informed by public small entities by providing a regulatory [Docket No. SBA–2020–0038] comment. impact analysis. Such analysis must This rule is necessary to implement address the consideration of regulatory RIN 3245–AH52 Sections 1102 and 1106 of the CARES options that would lessen the economic Act and the Flexibility Act in order to effect of the rule on small entities. The DEPARTMENT OF THE TREASURY provide economic relief to small RFA defines a ‘‘small entity’’ as (1) a RIN 1505–AC70 businesses nationwide adversely proprietary firm meeting the size impacted under the COVID–19 standards of the Small Business Business Loan Program Temporary Emergency Declaration. We anticipate Administration (SBA); (2) a nonprofit Changes; Paycheck Protection that this rule will result in substantial organization that is not dominant in its Program—Revisions to Loan benefits to small businesses, their field; or (3) a small government Forgiveness and Loan Review employees, and the communities they jurisdiction with a population of less Procedures Interim Final Rules serve. However, we lack data to estimate than 50,000. 5 U.S.C. 601(3)–(6). Except the effects of this rule. for such small government jurisdictions, AGENCY: U.S. Small Business neither State nor local governments are Administration; Department of the Executive Order 12988 ‘‘small entities.’’ Similarly, for purposes Treasury. SBA has drafted this rule, to the of the RFA, individual persons are not ACTION: Interim final rule. extent practicable, in accordance with small entities. the standards set forth in section 3(a) The requirement to conduct a SUMMARY: On April 2, 2020, the U.S. and 3(b)(2) of Executive Order 12988, to regulatory impact analysis does not Small Business Administration (SBA) minimize litigation, eliminate apply if the head of the agency ‘‘certifies posted on its website an interim final ambiguity, and reduce burden. The rule that the rule will not, if promulgated, rule relating to the implementation of has no preemptive effect but does have have a significant economic impact on sections 1102 and 1106 of the a limited retroactive effect consistent a substantial number of small entities.’’ Coronavirus Aid, Relief, and Economic with section 3(d) of the Flexibility Act. 5 U.S.C. 605(b). The agency must, Security Act (CARES Act or the Act) Executive Order 13132 however, publish the certification in the (published in the Federal Register on Federal Register at the time of April 15, 2020). Section 1102 of the Act SBA has determined that this rule temporarily adds a new product, titled will not have substantial direct effects publication of the rule, ‘‘along with a statement providing the factual basis for the ‘‘Paycheck Protection Program,’’ to on the States, on the relationship the SBA’s 7(a) Loan Program. between the National Government and such certification.’’ If the agency head has not waived the requirements for a Subsequently, SBA and Treasury issued the States, or on the distribution of additional interim final rules power and responsibilities among the regulatory flexibility analysis in accordance with the RFA’s waiver implementing the Paycheck Protection various layers of government. Therefore, Program. On June 5, 2020, the Paycheck SBA has determined that this rule has provision, and no other RFA exception applies, the agency must prepare the Protection Program Flexibility Act of no federalism implications warranting 2020 (Flexibility Act) was signed into preparation of a federalism assessment. regulatory flexibility analysis and publish it in the Federal Register at the law, amending the CARES Act. This Paperwork Reduction Act, 44 U.S.C. time of promulgation or, if the rule is interim final rule revises interim final Chapter 35 promulgated in response to an rules posted on SBA’s and the emergency that makes timely Department of the Treasury’s websites SBA has determined that this rule on May 22, 2020 (published on June 1, will require modification to the existing compliance impracticable, within 180 days of publication of the final rule. 5 2020, in the Federal Register), by PPP information collection that is changing key provisions to conform to approved under OMB Control Number U.S.C. 604(a), 608(b). the Flexibility Act. Several of these 3245–0407 as an emergency request Rules that are exempt from notice and amendments are retroactive to the date until October 31, 2020. As discussed comment are also exempt from the RFA of enactment of the CARES Act, as above, this rule amends the PPP requirements, including conducting a required by section 3(d) of the eligibility requirements regarding regulatory flexibility analysis, when Flexibility Act. certain criminal activity. As a result of among other things the agency for good cause finds that notice and public DATES: these amendments, conforming changes will be made to Questions 5 and 6 of procedure are impracticable, Effective Date: This interim final rule Form 2483, Borrower Application Form, unnecessary, or contrary to the public is effective March 27, 2020, except for and Section H of Form 2484, Lender interest. Small Business the provision relating to the maturity Application Form. SBA will submit the Administration’s Office of Advocacy date of PPP loans, which is effective revisions to these forms to the Office of guide: How to Comply with the June 5, 2020, and the provision relating Management and Budget for approval. Regulatory Flexibility Act, Ch.1. p.9. to the cap on the amount of loan Accordingly, SBA is not required to forgiveness for owner-employees and Regulatory Flexibility Act (RFA) conduct a regulatory flexibility analysis. self-employed individuals, which is The Regulatory Flexibility Act (RFA) effective on June 24, 2020. Authority: 15 U.S.C. 636(a)(36); Comment Date: Comments must be generally requires that when an agency Coronavirus Aid, Relief, and Economic received on or before July 27, 2020. jbell on DSKJLSW7X2PROD with RULES issues a proposed rule, or a final rule Security Act, Pub. L. 116–136, Section 1114. pursuant to section 553(b) of the APA or ADDRESSES: You may submit comments, another law, the agency must prepare a Jovita Carranza, identified by number SBA–2020–0038, regulatory flexibility analysis that meets Administrator. through the Federal eRulemaking Portal: the requirements of the RFA and [FR Doc. 2020–13942 Filed 6–24–20; 4:15 pm] http://www.regulations.gov. Follow the publish such analysis in the Federal BILLING CODE 8026–03–P instructions for submitting comments. VerDate Sep<11>2014 16:24 Jun 25, 2020 Jkt 250001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\26JNR1.SGM 26JNR1