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Federal Register / Vol. 86, No. 171 / Wednesday, September 8, 2021 / Rules and Regulations
and nonprofit organizations that are still struggling will turn to the COVID EIDL
program for long-term recovery. For these reasons, SBA anticipates that this rule will result in substantial benefits to small businesses, nonprofit organizations, their employees, and the communities they serve.
Executive Order 12988
SBA has drafted this rule, to the extent practicable, in accordance with the standards set forth in section 3a and 3b2 of Executive Order 12988, to minimize litigation, eliminate ambiguity, and reduce burden. The rule has no preemptive or retroactive effect.

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Executive Order 13132
SBA has determined that this rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various layers of government. Therefore, SBA has determined that this rule has no federalism implications warranting preparation of a federalism assessment.
Congressional Review Act OIRA has determined that this is a major rule for purposes of subtitle E of the Small Business Regulatory Enforcement and Fairness Act of 1996
also known as the Congressional Review Act or CRA, 5 U.S.C. 8042 et seq. Under the CRA, a major rule takes effect 60 days after the rule is published in the Federal Register. 5 U.S.C.
801a3.
Notwithstanding this requirement, the CRA allows agencies to dispense with the requirements of section 801 when the agency for good cause finds that such procedure would be impracticable, unnecessary, or contrary to the public interest, and provides that the rule shall take effect at such time as the Federal agency promulgating the rule determines. 5 U.S.C. 8082.
Pursuant to section 8082, SBA for good cause finds that a 60-day delay to provide public notice would be impracticable, unnecessary, and contrary to the public interest. Likewise, for the same reasons, SBA for good cause finds that there are grounds to waive the 30-day effective date delay under the Administrative Procedure Act. 5 U.S.C. 553d3.
Other SBA COVID19 relief programs have recently ended or exhausted the funding provided for the program including PPP and RRF, yet businesses and nonprofit organizations are still in need of support. The COVID EIDL
program is more critical now than it was before because of the lack of these other
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resources and the continuing economic instability. An immediate effective date 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 loans and SBA the maximum amount of time to process applications before the program ends on December 31, 2021.
Given the short duration of this program, SBA has determined that it is impractical and not in the public interest to provide a delayed effective date.
Paperwork Reduction Act, 44 U.S.C.
Chapter 35
SBA has determined that this rule will require revisions to the COVID19
Economic Injury Disaster Loan Application information collection OMB Control Number 32450406. The application form will be revised to require the disclosure of the NAICS
code for the applicant in order to determine the size of the applicant on a per-physical location basis and to add an option to identify the eligible entity as a business that is assigned a NAICS
code beginning with 61, 71, 72, 213, 3121, 315, 448, 451, 481, 485, 487, 511, 512, 515, 532, or 812, employs not more than 500 employees per physical location, and together with affiliates has no more than 20 locations. In addition, to simplify and streamline the process for applicants, SBA has consolidated Forms 3501 COVID19 Economic Injury Disaster Loan Application, 3502
Economic Injury Disaster Loan Supporting Information, and 3503
Self-Certification for Verification of Eligible Entity for Economic Injury Disaster Loan into one form. This will reduce the burden on applicants as they will only need to enter certain information once. SBA also added questions related to entity type and types of business activity to assist borrowers in making the eligibility certification. Further, SBA revised the questions related to the calculation of economic injury for clarity and to aid in automating the review process. Finally, SBA made additional technical edits to the form for clarity. SBA has obtained emergency approval of the revisions, including waiver of public comment notices. The collection is approved for use until February 28, 2022. SBA will take the necessary steps to solicit comments and revise the information collection, if necessary, before approval expires.
Regulatory Flexibility Act RFA
The Regulatory Flexibility Act RFA, 5 U.S.C. 601612, generally requires
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that when an agency issues a proposed rule, or a final rule pursuant to section 553b of the Administrative Procedure Act or another law, the agency must prepare a regulatory flexibility analysis that meets the requirements of the RFA
and publish such analysis in the Federal Register. 5 U.S.C. 603, 604.
Rules that are exempt from notice and comment are also exempt from the RFA
requirements, including conducting a regulatory flexibility analysis, such as when, among other exceptions, the agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. SBA Office of Advocacy Guide:
How To Comply with the Regulatory Flexibility Act, Ch.1. p.9. Since this rule is exempt from notice and comment, SBA is not required to conduct a regulatory flexibility analysis.
List of Subjects 13 CFR Part 121
Loan programsbusiness, Reporting and recordkeeping requirements, Small business.
13 CFR Part 123
Loan Programdisaster loan program.
For the reasons stated in the preamble, SBA amends 13 CFR parts 121 and 123 as follows:
PART 121SMALL BUSINESS SIZE
REGULATIONS
1. The authority citation for 13 CFR
part 121 continues to read as follows:

Authority: 15 U.S.C. 632, 634b6, 636a36, 662, and 694a9; Pub. L. 116136, Section 1114.

2. Amend 121.301 by adding paragraph g to read as follows:

121.301 What size standards and affiliation principles are applicable to financial assistance programs?

g For COVID19 Economic Injury Disaster COVID EIDL loans, an affiliated business or affiliate is a business in which an eligible entity has an equity interest or right to profit distributions of not less than 50 percent, or in which an eligible entity has the contractual authority to control the direction of the business, provided that such affiliation shall be determined as of any arrangements or agreements in existence as of January 31, 2020. For exceptions to affiliation, see 121.103b.

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