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Federal Register / Vol. 86, No. 177 / Thursday, September 16, 2021 / Rules and Regulations
record. See 13 CFR 134.1209c. Thus, neither discovery nor oral hearings will be permitted for appellant or SBA. See 13 CFR 134.1209b.
One comment received suggested that OHA provide a description of the OHA
procedural rules incorporated into subpart L in addition to citing to those rules. SBA agrees that such a change is minimal and promotes clarity and guidance. Thus, this final rule provides a description of each rule incorporated into subpart L at 13 CFR 134.1201h.
One comment received proposed a change in the rule to account for borrowers who may have been acquired by another entity between the time the initial PPP loan was issued and the filing of a PPP appeal. The rule now includes language to address both borrowers and their legal successors under 13 CFR 134.1203.
Six commenters argued that SBA
should have regulations which formalize the procedures for final SBA
loan review decisions. They assert that the existing interim final rules are too broad and lacking in specifics about the process and have no criteria for making the decisions or compiling the administrative record. One commenter also requested that more information be provided on the loan forgiveness process. As to the administrative record, this final rule sets forth what should be included in the administrative record at 13 CFR 134.1207. As to the criteria for making final SBA loan review decisions and the loan forgiveness process, SBA
has issued various rules and guidance on the process for SBA loan reviews including, but not limited to, the Loan Review IFR; 1 Second Loan Review IFR; 2 Third Loan Review IFR; 3 Fourth Loan Review IFR; 4 SBA Procedural Notice: Procedures for Lender Submission of Paycheck Protection Program Loan Forgiveness Decisions to SBA and SBA Forgiveness Loan Reviews; 5 and SBA Procedural Notice:
PPP Borrower Resubmissions of Loan Forgiveness Applications Using Form 3508S, Lender Notice Responsibilities to PPP Borrowers, and Offset of Remittances to Lenders for Lender Debts.6 Additional information is available at https www.sba.gov/
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FR 33010 June 1, 2020.
FR 38304 June 26, 2020.
3 85 FR 66214 October 19, 2020.
4 86 FR 8283 February 5, 2021.
5 See https www.sba.gov/document/proceduralnotice-5000-20038-procedures-lender-submissionpaycheck-protection-program-loan-forgivenessdecisions-sba-sba.
6 See https www.sba.gov/document/proceduralnotice-5000-20077-ppp-borrower-resubmissionsloan-forgiveness-applications-using-form-3508slender-notice.
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funding-programs/loans/covid-19-reliefoptions/paycheck-protection-program and https home.treasury.gov/policyissues/coronavirus/assistance-for-smallbusinesses/paycheck-protectionprogram. SBA has issued sufficient guidance for the loan forgiveness process and the issuance of final SBA
loan review decisions. SBA received a few other comments which recommended changes to the loan forgiveness application process. Such comments are not relevant to this final rule and need not be addressed here.
Five comments received stated that the requirement to repay the loans should be held in abeyance pending appeal. SBA has determined that, in order to avoid the potential administrative burden of having to reverse implementation of the final SBA
loan review decision, including the refund of borrower payments by the Lender and the processing of forgiveness payments by SBA, a timely appeal by a PPP borrower of a final SBA
loan review decision should extend the deferment period of the PPP loan.
Payment of the PPP loan will be deferred until there is a final decision on an appeal under 13 CFR 134.1211. In addition, SBA believes that allowing for continued deferment is in the best interest of the borrower.7 This decision has been added to the regulation at 13
CFR 134.1202d.8
SBA also received some comments from borrowers that sought relief from SBA for a PPP loan application that was denied by a Lender. Such comments are not relevant to this final rule and cannot be addressed here. Further, the rule, at 13 CFR 134.1201c, provides that a borrower cannot directly file an appeal of a decision made by a lender concerning a PPP loan to OHA.
IV. Technical Amendments This rule makes technical amendments to ensure efficiency, transparency, and consistency throughout the appeals process. This includes: Removal of the deduction of any Economic Injury Disaster Loan EIDL advance located in the OHA
Appeal IFR at 13 CFR 134.1201b3 to be consistent with Section 333 of the Economic Aid Act which repealed the CARES Act provision at section 7 Interest will continue to accrue on the PPP loan during the deferment period. See, Interim Final Rule on Business Loan Program Temporary Changes; Paycheck Protection Program as Amended by Economic Aid Act 86 FR 3692, 3703, January 14, 2021.
8 See also, Interim Final Rule on Business Loan Program Temporary Changes; Paycheck Protection ProgramCOVID Revenue Reduction Score, Direct Borrower Forgiveness Process, and Appeals Deferment 86 FR 40921, 40925, July 30, 2021.

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1110e6 requiring SBA to deduct the EIDL advance; explicitly stating that a borrower cannot directly file an appeal of a decision by a lender concerning a PPP loan to OHA 13 CFR 134.1201c;
informing an appellant that they must first file an appeal of the final SBA loan review decision with OHA before appealing to Federal district court 13
CFR 134.1201d; and incorporating provisions from OHAs General Rules of Practice into this section with descriptions of those provisions 13 CFR
134.1201h.
This final rule makes a procedural change to require appellants to use the OHA Case Portal to file and manage their appeals 13 CFR 134.1202a; this provision also establishes Commencement of Appeals of Final SBA Loan Review Decisions to outline the process of how and when an appeal must be filed 13 CFR 134.1202; and removes the requirement that timeliness of the appeal could be based on a notification by the lender of a final SBA
loan review decision rather than actual receipt of the final SBA loan review decision 13 CFR 134.1202a.
SBA has also simplified the information required to file an appeal by eliminating a requirement to provide a basis for jurisdiction and relief sought;
only requiring the borrower to produce a final SBA loan review decision and not merely a description of a final SBA
loan review decision and the date it was received to determine timeliness of the appeal; removing requirements that the appellant provide tax documents;
and removing the requirement that a borrower include a certificate of service with its appeal or any other subsequent documents filed with OHA. 13 CFR
134.1204. This rule also requires borrowers to provide their lender with a copy of their appeal in order for the lender to extend the deferment period of the PPP loan until a final decision is issued under 134.1211. 13 CFR
134.1202b.
This rule also specifies that lenders and individual owners of a borrower entity do not have standing to file an appeal. 13 CFR 134.1203. The new provision, titled Notice and Order, now provides an overview of the information that will be included within the Notice and Order 13 CFR 134.1206.
This rule provides for the deadline to produce the Administrative Record within the Administrative Record provision 13 CFR 134.1207a; clarifies that SBA may, but is not required to, respond to an appeal and, if SBA does not respond it will not be construed against SBA 13 CFR 134.1208;
provides that a response to an appeal is due 45 calendar days from the date of
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