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Federal Register / Vol. 86, No. 171 / Wednesday, September 8, 2021 / Rules and Regulations Aid, Relief, and Economic Security Act CARES Act Public Law 116136, expanded eligibility and waived certain rules and requirements for COVID EIDL
loans. Section 1110 of the CARES Act permitted SBA to waive rules related to personal guaranties on COVID EIDL
loans of not more than $200,000 and the requirement that an applicant be unable to obtain credit elsewhere. Section 1110
also provided SBA with the authority to approve an applicant based solely on the credit score of the applicant or use alternative appropriate methods to determine an applicants ability to repay. On April 24, 2020, the Paycheck Protection Program and Health Care Enhancement Act PPP Enhancement Act Public Law 116139, provided additional funding for SBA to make EIDL loans and further expanded EIDL
eligibility to include agricultural enterprises with not more than 500
employees, which are typically not eligible for SBA disaster assistance.
Prior to the enactment of the PPP
Enhancement Act, SBA had an existing $1.1 billion in credit subsidy funding, which it used to support between $7
billion and $8 billion in EIDL loans to businesses affected by the COVID19
pandemic. The PPP Enhancement Act provided an additional $50 billion in loan credit subsidy to SBA. See 15
U.S.C. 636b and 13 CFR 123.300c. On December 27, 2020, the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act Economic Aid Act, Public Law 116260, was enacted as part of the Consolidated Appropriations Act, 2021. Section 332
of the Economic Aid Act extended the authority to make COVID EIDL loans through December 31, 2021, and further modified the terms under which SBA
approves COVID EIDL loans, and Section 331 provided SBA authority to make targeted EIDL advances. On March 11, 2021, the American Rescue Plan Act ARPA, Public Law 1172, was enacted, establishing the Restaurant Revitalization Fund RRF through Section 5003 to provide assistance to restaurants, beverage alcohol producers, and other entities, and providing authority to provide supplemental Targeted Advances.
In light of the COVID19 emergency, many small businesses nationwide have experienced economic hardship as a direct result of the Federal, State, and local public health measures that have been taken to minimize the publics exposure to the virus. These measures, some of which were governmentmandated, were implemented across the country. In addition, based on the advice of public health officials, other
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measures, such as keeping a safe distance from others or stay-at-home orders, were implemented, resulting in a dramatic decrease in economic activity as the public avoided malls, retail stores, and other businesses. On March 16, 2021, the SBA announced that it would extend deferment periods for all disaster loans, including COVID
EIDL loans, until 2022. COVID EIDL
loans made in calendar year 2020 will have the first payment due date extended from 12 months to 24 months from the date of the note. COVID EIDL
loans made in calendar year 2021 will have the first payment due date extended from 12 months to 18 months from the date of the note. On March 24, 2021, the SBA announced that it would increase the maximum amount that can be borrowed under the COVID EIDL
program from $150,000 6 months of economic injury to $500,000 24
months of economic injury.
II. Comments and Immediate Effective Date This interim final rule is being issued without advance notice and public comment. SBA has determined that there is good cause for dispensing with advance public notice and comment on the ground that it would be impracticable and contrary to the public interest. 5 U.S.C. 553b3B.
The intent of the statutory COVID
financial assistance programs, including the COVID EIDL program, is that SBA
provide relief to Americas small businesses expeditiously. This intent, along with the continuing decrease in economic activity in key economic sectors as compared to 2019 and the reimposition of mask requirements and other public-health measures throughout the country because of the variants including Delta of COVID19, provides good cause for SBA to dispense with advance notice and comment rulemaking, which would take months. Given that this rule is issuing in August, new changes could not go into effect until November, leaving just a few weeks to implement the new program and take applications before funding expires. This shortened program timeframe would be problematic because SBA believes, with basis, there is a tremendous demand and need for this program. Other SBA
COVID relief programs have recently ended or have exhausted their funding including the Paycheck Protection Program and the Restaurant Revitalization Fund, yet businesses and nonprofit organizations are still in need of support. As evidence of unmet need, the Restaurant Revitalization Fund received $28.6 billion in appropriations
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to provide assistance to the restaurant industry, but within 21 days, SBA
received 278,304 applications seeking assistance in amounts totaling more than $72 billion, nearly three times the amount appropriated. Funding was quickly exhausted, leaving 177,300
businesses without assistance. Further, with the end of the Paycheck Protection Program, businesses and nonprofit organizations that are still struggling will turn to the COVID EIDL program for long-term recovery. Thus, the COVID
EIDL program is more critical now than it was before, because of the lack of resources available through these other programs and because of the continuing economic instability. Issuing this rule without advance notice and comment will give small businesses, nonprofit organizations, qualified agricultural businesses, and independent contractors affected by this interim final rule the maximum amount of time to apply for COVID EIDL loans, and will give SBA
the maximum amount of time to process applications before the program ends in less than five monthson December 31, 2021. In addition, 13 CFR 123.1 reserves to SBA authority to revise disaster regulations without advance notice, by publishing interim emergency regulations in the Federal Register.
Finally, given the short duration of this program and the unmet need for immediate assistance in key economic sectors, SBA has determined that it is impractical and not in the public interest to provide a delayed effective date. 5 U.S.C. 553d. Limiting the availability of this program to a few weeks, given the needs, would result in significant avoidable economic losses precisely the result that Congress was trying to avoid in passing and amending the COVID EIDL program. Therefore, SBA is of the view that delaying issuance to conduct notice and comment procedures would effectively void the effectiveness of these reforms to the COVID EIDL program, with significant harms resulting. Although this interim final rule is effective immediately, comments are solicited from interested members of the public on all aspects of the interim final rule.
SBA will consider these comments and the need for making any revisions as a result of these comments.
III. Disaster Loan Program Changes 1. Definition of Affiliation for COVID
EIDL Loans Based on continuing confusion and burdensome analyses required by applicants and SBA, to simplify the program requirements of COVID EIDL
such that applicants can more easily
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