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Federal Register / Vol. 86, No. 177 / Thursday, September 16, 2021 / Rules and Regulations
and incorporate changes made by the Economic Aid Act 86 FR 8283 Fourth Loan Review IFR.
On March 11, 2021, the American Rescue Plan Act of 2021 American Rescue Plan Act was enacted to, among other things, expand eligibility for first and second draw PPP loans and revise the exclusions from payroll costs for purposes of loan forgiveness. On March 18, 2021, SBA and Treasury posted an interim final rule on PPP to incorporate the American Rescue Plan Acts amendments to the PPP, as well as other changes 86 FR 15083. On March 30, 2021, the PPP Extension Act of 2021
Pub. L. 1176 was enacted, extending SBAs PPP program authority through June 30, 2021. On July 30, 2021, SBA
published an interim final rule on PPP
establishing a direct borrower forgiveness process for loans of $150,000 or less, among other changes 86 FR 40921.
As described below, this final rule sets forth procedures for PPP borrowers and Lenders on the process for a PPP
borrower to appeal certain final SBA
loan review decisions under the PPP to the SBA Office of Hearings and Appeals OHA. The interim final rule supplemented the interim final rule on Loan Review Procedures and Related Borrower and Lender Responsibilities posted on SBAs and Treasurys websites on May 22, 2020 published on June 1, 2020, in the Federal Register, as revised by the interim final rules posted on SBAs and Treasurys websites on June 22, 2020, October 8, 2020, and January 19, 2021 published on June 26, 2020, October 19, 2020, and February 5, 2021, respectively, and as further amended.
II. Notice and Comment and Immediate Effective Date This rule revises subpart L, as added by the interim final rule posted on the websites of the SBA and the U.S.
Department of the Treasury on August 11, 2020 published in the Federal Register on August 27, 2020, to reflect SBAs responses to public comments on the interim final rule. The revision to 134.102, Jurisdiction of OHA, is adopted without change.
This final rule adopts with changes portions of the previously-published interim final rule on Appeals of SBA
Loan Review Decisions Under the Paycheck Protection Program. This rule revises 13 CFR part 134, subpart L, as added by the interim final rule, to reflect SBAs responses to public comments on the interim final rule, as detailed in Part III below. This final rule has accordingly satisfied the
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Administrative Procedure Acts advance notice-and-comment requirements.
SBA has found that there is good cause to dispense with the 30-day delayed effective date provided in the Administrative Procedure Act. The intent of the CARES Act is to afford SBA
the flexibility to provide relief to Americas small businesses expeditiously. This intent, along with the need to provide lenders and borrowers with certainty regarding PPP
loan forgiveness if any, provides good cause for immediate implementation of changes to the OHA appeal feature of this program. Specifically, it is critical to meet lenders and borrowers need for clarity concerning the OHA appeal process as rapidly as possible.
Borrowers have been applying for loan forgiveness, lenders have been issuing loan forgiveness decisions to SBA, and SBA has been reviewing PPP loans in connection with those forgiveness applications and decisions. SBA
currently has pending final SBA loan review decisions that are ready to be issued and is continuing to conduct loan reviews and make final SBA loan review decisions that will need to be issued. Borrowers and lenders are expecting these decisions to be issued in accordance with the statutory and regulatory timelines requiring SBA to remit the appropriate forgiveness amount to the lender if any, within 90
days of the lender issuing its decision to SBA, subject to any SBA review of the loan or the loan application. This final rule will allow SBA to immediately issue such decisions and provide certainty around the appeals process to these potential appellants without further delay. Because this final rule also provides increased accessibility to borrowers in response to comments previously received by the public, allowing the borrowers that receive an appealable final SBA loan review decision to immediately appeal under the final rule is in the best interests of the borrowers.
III. Summary of Comments Received The comment period for the OHA
Appeal IFR was open from August 27, 2020, to September 28, 2020, and SBA
received 16 comments. This section includes a description of the comments and SBAs response.
Two of the comments received proposed an extension of time to file an appeal to account for appellants who may be unfamiliar with the appeals process. In the interest of efficiency and to ensure a speedy resolution of disputes concerning final SBA loan review decisions, the 30-calendar day requirement will remain. To promote
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clarity and fairness, SBA will no longer begin counting days to file an appeal based on when an appellant receives notification from the lender that a final SBA loan review decision has been issued without actually receiving the final loan review decision document detailing the reasons for the decision.
Instead, the clock for counting days will begin only after the borrower has received the actual final SBA loan review decision document. This will provide the borrower with 30 calendar days to formulate its arguments as to why the decision is clearly erroneous.
See 13 CFR 134.1202a.
Two of the comments raised issue with the inability of the borrower to file arguments after the administrative record has been transmitted to OHA.
Although OHAs general rules of procedure found at 13 CFR 134.206e allows for a party to request leave to reply to a response, this final rule explicitly directs a party to seek leave to file a reply or supplemental pleading.
13 CFR 134.1208e. Also, an appellant is given 30 calendar days after the issuance of the Notice and Order to file any objections to the administrative record, should the appellant find the administrative record is incomplete. See 13 CFR 134.1207e.
One comment proposed that the time to file an objection to the administrative record should be extended to 15
calendar days. The commenter reasoned that a non-attorney may have difficulty understanding the role of the administrative record, what documents are included and excluded from the record, and the applicable privileges.
Because the appellant will have participated in the process of providing documents submitted by the lender to SBA during the loan forgiveness process and the loan review process, the appellant should be familiar with the documents included in the administrative record, making 30
calendar days from the issuance of the Notice and Order where the administrative record is due 20 calendar days after issuance of the Notice and Order a sufficient time to assert an objection. The Notice and Order that will be issued under 13 CFR 134.1206
will provide a description of the documents included in the administrative record and will note the appellants ability to object to the administrative record by the due date.
The appellant can also avail itself of 13
CFR 134.1207, which provides more detail on the administrative record and appellants ability to object to the administrative record. Appellant will also have the ability to request leave to file a supplementary pleading after
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