Unknown. Interim final rule

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--- schema: federal-register doc_type: fedreg source_file: FR-2020-05-08.xml --- 85 90 Friday, May 8, 2020 Contents Agricultural Research Agricultural Research Service NOTICES Requests for Nominations: National Agricultural Research, Extension, Education, and Economics Advisory Board, Specialty Crop Committee, Citrus Disease Subcommittee, and National Genetic Resources Advisory Council, 27352-27353 2020-09931 Agriculture Agriculture Department See Agricultural Research Service See Animal and Plant Health Inspection Service See Forest Service See National Agricultural Statistics Service Animal Animal and Plant Health Inspection Service NOTICES Petition for Determination of Nonregulated Status:

Bayer/Monsanto; Maize Genetically Engineered for Dicamba, Glufosinate, Quizalofop, and 2,4-Dichlorophenoxyacetic Acid Tolerance with Tissue-specific Glyphosate Tolerance Facilitating the Production of Hybrid Maize Seed, 27354-27355 2020-09834 Consumer Financial Protection Bureau of Consumer Financial Protection NOTICES Fair Lending Report, April 2020, 27395-27407 2020-09890 Centers Medicare Centers for Medicare & Medicaid Services RULES Medicare and Medicaid Programs, Basic Health Program, and Exchanges:

Additional Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency and Delay of Certain Reporting Requirements for the Skilled Nursing Facility Quality Reporting Program, 27550-27629 2020-09608 Children Children and Families Administration NOTICES Meetings: Administration for Native Americans, 27417-27418 2020-09850 Civil Rights Civil Rights Commission NOTICES Meetings: Alabama Advisory Committee, 27357 2020-09883 Colorado Advisory Committee, 27357-27358 2020-09844 Massachusetts Advisory Committee, 27356-27357 2020-09816 Coast Guard Coast Guard RULES 2013 Liquid Chemical Categorization Updates;

Correction, 27308-27309 2020-09958 PROPOSED RULES Anchorage Ground: Cape Fear River Approach, NC, 27343-27344 2020-09604 Special Local Regulation: Ohio River, Louisville, KY, 27341-27342 2020-09161 Commerce Commerce Department See Economic Development Administration See International Trade Administration See National Oceanic and Atmospheric Administration See National Telecommunications and Information Administration See Office of the Under-Secretary for Economic Affairs Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List;

Additions and Deletions, 27393-27394 2020-09897 Copyright Office Copyright Office, Library of Congress RULES Secure Tests, 27296-27299 2020-09916 Defense Department Defense Department NOTICES Meetings: National Security Education Board, 27408 2020-09923 Economic Development Economic Development Administration NOTICES Trade Adjustment Assistance; Determinations, 27358-27359 2020-09891 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals:

Impact Study of Federally-Funded Magnet Schools, 27408-27409 2020-09865 Employment and Training Employment and Training Administration NOTICES Change in Status of the Extended Benefit Program for Connecticut, 27447 2020-09913 Change in Status of the Extended Benefit Program for Michigan, 27446-27447 2020-09911 Change in Status of the Extended Benefit Program for Rhode Island, 27443-27444 2020-09914 Reallotment of Workforce Innovation Opportunity Act Title I Formula Allotted Funds:

Dislocated Worker Activities for Program Year 2019, 27444-27446 2020-09912 Energy Department Energy Department See Federal Energy Regulatory Commission Environmental Protection Environmental Protection Agency PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: California; Feather River Air Quality Management District, 27344-27346 2020-09733 Pesticide Petition: Residues of Pesticide Chemicals in or on Various Commodities (April 2020), 27346-27348 2020-09165 Site Specific Flexibility for the Cocopah Landfill:

Tentative Determination; Approve, 27348-27351 2020-09241 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Notice of Arrival of Pesticides and Devices, 27413-27414 2020-09860 Charter Renewal: Board of Scientific Counselors, 27412 2020-09875 Environmental Impact Statements; Availability, etc.: Weekly Receipt, 27412-27413 2020-09859 Equal Equal Employment Opportunity Commission NOTICES Delay in Opening of 2019 EEO-1 Component 1 and 2020 EEO-3 and 2020 EEO-5 Data Collections due to the Coronavirus Disease 2019 (COVID-19) Public Health Emergency, 27414 2020-09876 Federal Aviation Federal Aviation Administration RULES Amendment of Class E Airspace:

Ada, OK, 27293-27294 2020-09824 Big Rapids, MI, 27295-27296 2020-09820 Greenville and Madisonville, KY, 27294-27295 2020-09819 PROPOSED RULES Amendment of Class D and Class E Airspace, Revocation of Class E Airspace, and Establishment of Class E Airspace: Multiple Ohio Towns, 27334-27337 2020-09822 Amendment of Class E Airspace: Baudette, MN, 27337-27339 2020-09821 Webster City, IA, 27333-27334 2020-09818 Winner, SD, 27339-27340 2020-09823 NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Commercial Air Tour Operator Reports, 27506-27507 2020-09898 Passenger Facility Charge Application, 27506 2020-09833 Federal Communications Federal Communications Commission RULES Video Relay Service Call Handling, 27309-27313 2020-08097 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 27414-27417 2020-09807 2020-09808 2020-09809 Federal Emergency Federal Emergency Management Agency NOTICES Major Disaster and Related Determinations:

Oklahoma, 27425 2020-09840 Oregon, 27424 2020-09837 South Dakota, 27429 2020-09847 Tennessee, 27428 2020-09836 Utah, 27427 2020-09839 Vermont, 27428-27429 2020-09848 Virgin Islands, 27426 2020-09846 West Virginia, 27425-27426 2020-09845 Wisconsin, 27427-27428 2020-09838 Wyoming, 27424-27425 2020-09841 Major Disaster Declaration: Kentucky; Amendment No. 1, 27426-27427 2020-09842 Kentucky; Amendment No. 4, 27428 2020-09852 Mississippi; Amendment No. 1, 27429-27430 2020-09849 Federal Energy Federal Energy Regulatory Commission NOTICES Application:

Rugged Solar, LLC, 27409-27410 2020-09870 Combined Filings, 27410-27412 2020-09866 2020-09867 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Ewington Energy Systems, LLC, 27412 2020-09869 South Fork Wind, LLC, 27409 2020-09868 Fish Fish and Wildlife Service RULES Revision of Federal Migratory Bird Hunting and Conservation Stamp (Duck Stamp) Contest Regulations, 27313-27317 2020-09908 NOTICES Environmental Impact Statements; Availability, etc.:

Hart Mountain National Antelope Refuge, Lake County, OR; Bighorn Sheep Management Plan, 27430-27431 2020-09255 Food and Drug Food and Drug Administration PROPOSED RULES Filing of Color Additive Petition: GNT USA, Inc., 27340-27341 2020-09311 NOTICES Guidance: Cytomegalovirus in Transplantation; Developing Drugs to Treat or Prevent Disease, 27418-27419 2020-09864 Hearing: Devices Proposed for a New Use With an Approved, Marketed Drug; Followup, 27419 2020-09832 Forest Forest Service NOTICES Meetings:

Wrangell-Petersburg Resource Advisory Committee, 27355 2020-09851 Health and Human Health and Human Services Department See Centers for Medicare & Medicaid Services See Children and Families Administration See Food and Drug Administration See Health Resources and Services Administration See National Institutes of Health RULES Medicare and Medicaid Programs, Basic Health Program, and Exchanges: Additional Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency and Delay of Certain Reporting Requirements for the Skilled Nursing Facility Quality Reporting Program, 27550-27629 2020-09608 Health Resources Health Resources and Services Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: The Teaching Health Center Graduate Medical Education Program Reconciliation Tool, 27419-27420 2020-09906 Homeland Homeland Security Department See Coast Guard See Federal Emergency Management Agency Indian Affairs Indian Affairs Bureau NOTICES Environmental Impact Statements; Availability, etc.: Southern Bighorn Solar Project on the Moapa River Indian Reservation, Clark County, NV, 27431-27432 2020-09831 Interior Interior Department See Fish and Wildlife Service See Indian Affairs Bureau See Land Management Bureau See National Park Service Internal Revenue Internal Revenue Service NOTICES Quarterly Publication of Individuals, Who Have Chosen To Expatriate, 27507-27546 2020-09814 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews:

Certain Cut-to-Length Carbon-Quality Steel Plate Products from the Republic of Korea, 27362-27364 2020-09889 Certain Small Diameter Carbon and Alloy Seamless Standard, Line and Pressure Pipe from Romania, 27359-27361 2020-09905 Stilbenic Optical Brightening Agents from Taiwan, 27361-27362 2020-09907 Justice Department Justice Department NOTICES Proposed Consent Decree and Environmental Settlement: Clean Air Act, 27443 2020-09825 Labor Department Labor Department See Employment and Training Administration Land Land Management Bureau NOTICES Application:

Recordable Disclaimer of Interest in Lands, Ada County, ID, 27433 2020-09885 Library Library of Congress See Copyright Office, Library of Congress National Agricultural National Agricultural Statistics Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 27355-27356 2020-09871 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 27423 2020-09917 National Cancer Institute, 27421-27422 2020-09918 National Heart, Lung, and Blood Institute, 27420-27423 2020-09919 2020-09920 2020-09921 2020-09922 National Institute of Mental Health, 27422-27423 2020-09928 2020-09929 National Institute on Deafness and Other Communication Disorders, 27420-27422 2020-09926 2020-09927 National Institute on Drug Abuse, 27423-27424 2020-09924 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries Off West Coast States:

West Coast Salmon Fisheries; 2020 Management Measures, 27317-27331 2020-09903 NOTICES Meetings: New England Fishery Management Council, 27364 2020-09882 North Pacific Fishery Management Council, 27388 2020-09881 Pacific Fishery Management Council, 27364-27365, 27388 2020-09880 2020-09884 Takes of Marine Mammals Incidental to Specified Activities: Construction of Two Liquefied Natural Gas Terminals, Texas, 27365-27388 2020-09830 Taking and Importing Marine Mammals: Incidental to Fisheries Research, 27388-27390 2020-09925 National Park National Park Service NOTICES Inventory Completion:

Pueblo Grande Museum, City of Phoenix, AZ, 27435-27443 2020-09910 University of California, Davis, Davis, CA, 27433-27435 2020-09909 National Science National Science Foundation NOTICES Meetings: Proposal Review Panel for Physics, 27447 2020-09902 National Telecommunications National Telecommunications and Information Administration NOTICES Input on Proposals and Positions for the 2020 World Telecommunication Standardization Assembly, 27390-27393 2020-09835 Nuclear Regulatory Nuclear Regulatory Commission PROPOSED RULES Transfer of Very Low-Level Waste to Exempt Persons for Disposal, 27332 2020-09055 NOTICES Combined License Amendment:

Southern Nuclear Operating Company, Inc.; Vogtle Electric Generating Plant, Units 3 and 4; Tornado Missile Protection for Main Steam Vent Stacks and Wall 11, 27449 2020-09894 Environmental Impact Statements; Availability, etc.: Interim Storage Partners Consolidated Interim Storage Facility Project, 27447-27448 2020-09795 Meetings; Sunshine Act, 27449-27450 2020-10047 Economic Affairs Office of the Under-Secretary for Economic Affairs NOTICES Meetings: American Workforce Policy Advisory Board, 27358 2020-09863 Postal Regulatory Postal Regulatory Commission RULES Update to Product Lists, 27301-27308 2020-08454 NOTICES New Postal Product, 27450 2020-09888 Postal Service Postal Service RULES Seamless Changes for Detached Mail Unit and Full-Service Mailings, 27299-27301 2020-08625 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances:

Missing and Murdered American Indians and Alaska Natives Awareness Day (Proc. 10026), 27631-27635 2020-10076 ADMINISTRATIVE ORDERS Central African Republic; Continuation of National Emergency (Notice of May 7, 2020), 27641 2020-10093 Syria; Continuation of National Emergency (Notice of May 7, 2020), 27637-27640 2020-10092 Yemen; Continuation of National Emergency (Notice of May 7, 2020), 27643 2020-10094 Securities Securities and Exchange Commission NOTICES Application: MEMX, LLC, 27451-27464 2020-09861 Meetings:

Asset Management Advisory Committee, 27469-27470 2020-09862 Meetings; Sunshine Act, 27469 2020-10049 Self-Regulatory Organizations; Proposed Rule Changes: The Nasdaq Stock Market, LLC, 27464-27469 2020-09827 The Options Clearing Corp., 27470-27488 2020-09872 Small Business Small Business Administration RULES Business Loan Program Temporary Changes: Paycheck Protection Program—Nondiscrimination and Additional Eligibility Criteria, 27287-27290 2020-09963 Regulatory Reform Initiative:

Small Disadvantaged Businesses, 27290-27293 2020-08619 NOTICES Major Disaster Declaration: South Carolilna, 27488-27489 2020-09811 South Carolina, 27488 2020-09812 State Department State Department NOTICES Meetings: Foreign Affairs Policy Board, 27489 2020-09887 Trade Representative Trade Representative, Office of United States NOTICES Product Exclusions: China's Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation, 27489-27505 2020-09828 Transportation Department Transportation Department See Federal Aviation Administration Treasury Treasury Department See Internal Revenue Service Unified Unified Carrier Registration Plan NOTICES Meetings;

Sunshine Act, 27546-27547 2020-10024 Separate Parts In This Issue Part II Health and Human Services Department, Centers for Medicare & Medicaid Services, 27550-27629 2020-09608 Health and Human Services Department, 27550-27629 2020-09608 Part III Presidential Documents, 27631-27635 2020-10076 Part IV Presidential Documents, 27637-27641, 27643 2020-10093 2020-10092 2020-10094 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription. 85 90 Friday, May 8, 2020 Rules and Regulations SMALL BUSINESS ADMINISTRATION 13 CFR Parts 113 and 120 [Docket Number SBA-2020-0024] RIN 3245-AH40 Business Loan Program Temporary Changes; Paycheck Protection Program—Nondiscrimination and Additional Eligibility Criteria AGENCY:

U.S. Small Business Administration. ACTION: Interim final rule. SUMMARY: On April 2, 2020, the U.S. Small Business Administration

(SBA)posted an interim final rule announcing the implementation of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The CARES Act temporarily adds a new program, titled the “Paycheck Protection Program,” to the SBA's 7(a) Loan Program. The CARES Act also provides for forgiveness of up to the full principal amount of qualifying loans guaranteed under the Paycheck Protection Program (PPP). The PPP is intended to provide economic relief to small businesses nationwide adversely impacted by the Coronavirus Disease 2019 (COVID-19). SBA posted additional interim final rules on April 3, 2020, April 14, 2020, April 24, 2020, April 28, 2020, and April 30, 2020 and the Department of the Treasury posted an additional interim final rule on April 28, 2020. This interim final rule supplements the previously posted interim final rules by providing guidance on nondiscrimination obligations and additional eligibility requirements, and requests public comment. DATES: *Effective date:* This rule is effective May 8, 2020. *Applicability date:* This interim final rule applies to applications submitted under the Paycheck Protection Program through June 30, 2020, or until funds made available for this purpose are exhausted. *Comment date:* Comments must be received on or before June 8, 2020. ADDRESSES: You may submit comments, identified by number SBA-2020-0024 through the Federal eRulemaking Portal: *http://www.regulations.gov.* Follow the instructions for submitting comments. SBA will post all comments on *www.regulations.gov.* If you wish to submit confidential business information

(CBI)as defined in the User Notice at *www.regulations.gov,* please send an email to *ppp-ifr@sba.gov.* Highlight the information that you consider to be CBI and explain why you believe SBA should hold this information as confidential. SBA will review the information and make the final determination whether it will publish the information. FOR FURTHER INFORMATION CONTACT: A Call Center Representative at 833-572-0502, or the local SBA Field Office; the list of offices can be found at *https://www.sba.gov/tools/local-assistance/districtoffices.* SUPPLEMENTARY INFORMATION: I. Background Information On March 13, 2020, President Trump declared the ongoing Coronavirus Disease 2019 (COVID-19) pandemic of sufficient severity and magnitude to warrant an emergency declaration for all States, territories, and the District of Columbia. With the COVID-19 emergency, many small businesses nationwide are experiencing economic hardship as a direct result of the Federal, State, tribal, and local public health measures that are being taken to minimize the public's exposure to the virus. These measures, some of which are government-mandated, are being implemented nationwide and include the closures of restaurants, bars, and gyms. In addition, based on the advice of public health officials, other measures, such as keeping a safe distance from others or even stay-at-home orders, are being implemented, resulting in a dramatic decrease in economic activity as the public avoids malls, retail stores, and other businesses. On March 27, 2020, the President signed the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act) (Pub. L. 116-136) to provide emergency assistance and health care response for individuals, families, and businesses affected by the coronavirus pandemic. The Small Business Administration

(SBA)received funding and authority through the CARES Act to modify existing loan programs and establish a new loan program to assist small businesses nationwide adversely impacted by the COVID-19 emergency. Section 1102 of the CARES Act temporarily permits SBA to guarantee 100 percent of 7(a) loans under a new program titled the “Paycheck Protection Program.” Section 1106 of the CARES Act provides for forgiveness of up to the full principal amount of qualifying loans guaranteed under the Paycheck Protection Program (PPP). On April 24, 2020, the President signed the Paycheck Protection Program and Health Care Enhancement Act (Pub. L. 116-139), which provided additional funding and authority for the PPP. Prior to the CARES Act, nonprofit organizations were not eligible to participate in SBA's 7(a) Loan Program (15 U.S.C. 636(a)). Section 1102 of the CARES Act expanded eligibility, limited to PPP, to include certain nonprofit organizations, among other organizations. SBA regulations at 13 CFR part 113 impose regulatory requirements “to reflect to the fullest extent possible the nondiscrimination policies of the Federal Government as expressed in the several statutes, Executive Orders, and messages of the President dealing with civil rights and equality of opportunity.” 13 CFR 113.1(a). But because SBA's loan programs previously served business entities, these regulations did not restate certain limitations and exemptions under federal law primarily pertinent to certain faith-based or nonprofit organizations. In particular, Title IX of the Education Amendments of 1972 permits single-sex admissions practices by preschools, non-vocational elementary or secondary schools, and private undergraduate higher education institutions. *See* 20 U.S.C. 1681(a)(1). Additionally, the Fair Housing Act of 1968 allows religious organizations to reserve housing for coreligionists, *see* 42 U.S.C. 3607, and allows for single-sex emergency shelters that provide refuge to abused women (or abused men), *see* 24 CFR 5.106; *see also Johnson* v. *Dixon,* 786 F. Supp. 1, 4 (D.D.C. 1991) (“It is . . . doubtful [that] `emergency overnight shelter,' . . . can be characterized as a `dwelling' within the meaning of the [Fair Housing] Act.”). Finally, the Indian Child Welfare Act of 1978 requires certain placement preferences in the foster care and adoptions of Indian children. *See* 25 U.S.C. 1915. The broadly worded SBA regulations do not articulate these limitations on the application of the relevant nondiscrimination provisions. In addition, there is a technical discrepancy between SBA's religious employer exemption at 13 CFR 113.3-1(h) and Title VII of the Civil Rights Act, which allows religious employers to make hiring decisions according to their religious beliefs with respect to all “activities,” not just “religious activities.” *See* An Act to further promote equal employment opportunities for American workers, Public Law 92-261, 86 Stat. 103, 104 (1972), *codified at* 42 U.S.C. 2000e-1(a). Given these various discrepancies, organizations have accordingly faced uncertainty about whether their participation in the PPP program would require them to substantially change their operations for a short period of months. These types of changes are impossible for some organizations, and impractical for many. This uncertainty risks frustrating the purpose of the CARES Act, which was to afford swift stopgap relief to Americans who might otherwise lose their jobs or businesses because of the economic hardships wrought by the response to the COVID-19 public health emergency. To provide certainty to applicants and recipients of loans and loan forgiveness under the PPP, and to address the large-scale burdens that SBA regulations may impose on recipients participating only on a short-term basis, this interim final rule provides guidance that for purposes of the PPP, nonprofits must meet their nondiscrimination obligations under existing Federal laws and Executive Orders. This interim final rule also provides guidance with respect to the religious employer exemption to ensure harmony with Section 702 of Title VII. In addition, as described below, to enable certain eligible small educational institutions to participate in PPP, this interim final rule provides that institutions of higher education shall exclude work study students when determining the number of employees for purposes of PPP loan eligibility. II. Comments and Immediate Effective Date The intent of the Act is that SBA provide relief to America's small businesses expeditiously. This intent, along with the dramatic decrease in economic activity nationwide, provides good cause for SBA to dispense with the 30-day delayed effective date provided in the Administrative Procedure Act. Specifically, it is critical to meet lenders' and borrowers' need for clarity concerning program requirements as rapidly as possible because the last day eligible borrowers can apply for and receive a loan is June 30, 2020. This interim final rule supplements previous regulations and guidance on certain important, discrete issues. The immediate effective date of this interim final rule will benefit lenders so that they can swiftly close and disburse loans to small businesses. This interim final rule is effective without advance notice and public comment because section 1114 of the Act authorizes SBA to issue regulations to implement Title I of the Act without regard to notice requirements. In addition, SBA has determined that there is good cause for dispensing with advance public notice and comment on the ground that it would be contrary to the public interest. Specifically, SBA has determined that advance public notice and comment would delay the ability of certain organizations to implement their nondiscrimination obligations in a manner consistent with the limitations contained in existing Federal laws, and potentially force such organizations to change their operations until SBA adopted a final or interim final rule. Rather than change their operations, the affected organizations could elect not to apply for PPP loans and lay off employees, which would defeat the paycheck protection purposes of the PPP. This rule is being issued to allow for immediate implementation of this program. 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, including section III below. These comments must be submitted on or before June 8, 2020. SBA will consider these comments and the need for making any revisions as a result of these comments. III. Paycheck Protection Program Nondiscrimination and Additional Eligibility Criteria Overview The CARES Act was enacted to provide immediate assistance to individuals, families, and organizations affected by the COVID-19 emergency. Among the provisions contained in the CARES Act are provisions authorizing SBA to temporarily guarantee loans under the PPP. Loans under the PPP will be 100 percent guaranteed by SBA, and the full principal amount of the loans and any accrued interest may qualify for loan forgiveness. Additional information about the PPP is available in interim final rules published by SBA and the Department of the Treasury in the **Federal Register** (85 FR 20811, 85 FR 20817, 85 FR 21747, 85 FR 23450, 85 FR 23917, 85 FR 26321 and 85 FR 26324) (collectively, the PPP Interim Final Rules). 1. Non-Discrimination *Are recipients of PPP loans entitled to exemptions on the grounds provided in Federal nondiscrimination laws for sex-specific admissions practices, sex-specific domestic violence shelters, coreligionist housing, or Indian tribal preferences in connection with adoption or foster care practices?* Yes. With respect to any loan or loan forgiveness under the PPP, the nondiscrimination provisions in the applicable SBA regulations incorporate the limitations and exemptions provided in corresponding Federal statutory or regulatory nondiscrimination provisions for sex-specific admissions practices at preschools, non-vocational elementary or secondary schools, and private undergraduate higher education institutions under Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 *et seq.* ), for sex-specific emergency shelters and coreligionist housing under the Fair Housing Act of 1968 (42 U.S.C. 3601 *et seq.* ), and for adoption or foster care practices giving child placement preferences to Indian tribes under the Indian Child Welfare Act of 1978 (25 U.S.C. 1901 *et seq.* ). In addition, for purposes of the PPP, SBA regulations do not bar a religious nonprofit entity from making decisions with respect to the membership or the employment of individuals of a particular religion to perform work connected with the carrying on by such nonprofit of its activities. 2. Student Workers and PPP Loan Eligibility *Do student workers count when determining the number of employees for PPP loan eligibility?* Yes, student workers generally count as employees, unless

(a)the applicant is an institution of higher education, as defined in the Department of Education's Federal Work-Study regulations, 34 675.2, and

(b)the student worker's services are performed as part of a Federal Work-Study Program (as defined in those regulations 1 ) or a substantially similar program of a State or political subdivision thereof. Institutions of higher education must exclude work study students when determining the number of employees for PPP loan eligibility, and must also exclude payroll costs for work study students from the calculation of payroll costs used to determine their PPP loan amount. 1 The Department of Education's Federal Work-Study Programs described at 34 CFR part 675 are

(1)the Federal Work-Study Program,

(2)the Job Location and Development Program, and

(3)Work Colleges Program. The Administrator, in consultation with the Secretary, has determined that this is a reasonable interpretation of section 1102(a) of the CARES Act's reference to “individuals employed on a full-time, part-time, or other basis.” Such programs generally provide part-time jobs for students with financial need, and their services are incident to and for the purpose of pursuing a course of study. Work study students are excluded from the definition of employees in other areas of federal law. For example, in the regulations implementing the Affordable Care Act, Treasury defined an employee's “hours of service” to exclude work study hours. 2 Explaining this exclusion, the regulation's preamble states that “[t]he federal work study program, as a federally subsidized financial aid program, is distinct from traditional employment in that its primary purpose is to advance education.” 3 Similarly, student work is generally exempt from Federal Insurance Contribution Act

(FICA)and Federal Unemployment taxes. 4 2 26 CFR 54.4980H-1(a)(24) (“Hour of service . . .

(ii)Excluded hours . . .

(B)Work-study program. The term hour of service does not include any hour for services to the extent those services are performed as part of a Federal Work-Study Program as defined under 34 CFR 675 or a substantially similar program of a State or political subdivision thereof.”). 3 79 FR 8544, 8550 (Feb. 12, 2014). 4 Internal Revenue Code Section 3121(b)(10) excepts from FICA tax “service performed in the employ of—(A) a school, college, university . . . if such service is performed by a student who is enrolled and regularly attending classes at such school, college, university.” Student workers, who are not full time, are excepted where the services are “incident to and for the purposes of pursuing a course of study.” 26 CFR 31.3121(b)(10)-2(d)(3)(i). For similar reasons, the Administrator, in consultation with the Secretary of the Treasury, has determined that a limited exception for work study is appropriate here. In particular, the Administrator recognizes that requiring institutions of higher education to count work study students towards employee headcount would result in an anomalous outcome in two respects. First, it would prevent some small educational institutions from receiving PPP loans due solely to their provision of financial aid to students in the form of work study. Second, it would result in the exclusion of small educational institutions whose part-time work study headcount dwarfs their full-time faculty and staff headcounts. Educational institutions that filed loan applications prior to the issuance of the regulation are not bound by this interpretation but may rely on it. Lenders may continue to rely on borrower certifications as part of their good faith review process. 3. Additional Information SBA may provide further guidance, if needed, through SBA notices that will be posted on SBA's website at *www.sba.gov.* Questions on the Paycheck Protection Program may be directed to the Lender Relations Specialist in the local SBA Field Office. The local SBA Field Office may be found at *https://www.sba.gov/tools/local-assistance/districtoffices.* Compliance With Executive Orders 12866, 12988, 13132, 13563, and 13771, the Paperwork Reduction Act (44 U.S.C. Ch. 35), and the Regulatory Flexibility Act (5 U.S.C. 601-612). Executive Orders 12866, 13563, and 13771 This interim final rule is economically significant for the purposes of Executive Orders 12866 and 13563, and is considered a major rule under the Congressional Review Act. SBA, however, is proceeding under the emergency provision at Executive Order 12866 Section 6(a)(3)(D) based on the need to move expeditiously to mitigate the current economic conditions arising from the COVID-19 emergency. This rule's designation under Executive Order 13771 will be informed by public comment. Executive Order 12988 SBA has drafted this rule, to the extent practicable, in accordance with the standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988, to minimize litigation, eliminate ambiguity, and reduce burden. The rule has no preemptive or retroactive effect. 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. Paperwork Reduction Act, 44 U.S.C. Chapter 35 SBA has determined that this rule will not impose new or modify existing recordkeeping or reporting requirements under the Paperwork Reduction Act. Regulatory Flexibility Act

(RFA)The Regulatory Flexibility Act

(RFA)generally requires that when an agency issues a proposed rule, or a final rule pursuant to section 553(b) of the APA 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. Specifically, the RFA normally requires agencies to describe the impact of a rulemaking on small entities by providing a regulatory impact analysis. Such analysis must address the consideration of regulatory options that would lessen the economic effect of the rule on small entities. The RFA defines a “small entity” as

(1)a proprietary firm meeting the size standards of the Small Business Administration (SBA);

(2)a nonprofit organization that is not dominant in its field; or

(3)a small government jurisdiction with a population of less than 50,000. 5 U.S.C. 601(3)-(6). Except for such small government jurisdictions, neither State nor local governments are “small entities.” Similarly, for purposes of the RFA, individual persons are not small entities. The requirement to conduct a regulatory impact analysis does not apply if the head of the agency “certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” 5 U.S.C. 605(b). The agency must, however, publish the certification in the **Federal Register** at the time of publication of the rule, “along with a statement providing the factual basis for such certification.” If the agency head has not waived the requirements for a regulatory flexibility analysis in accordance with the RFA's waiver provision, and no other RFA exception applies, the agency must prepare the regulatory flexibility analysis and publish it in the **Federal Register** at the time of promulgation or, if the rule is promulgated in response to an emergency that makes timely compliance impracticable, within 180 days of publication of the final rule. 5 U.S.C. 604(a), 608(b). Rules that are exempt from notice and comment are also exempt from the RFA requirements, including conducting a regulatory flexibility analysis, when among other things 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. Accordingly, SBA is not required to conduct a regulatory flexibility analysis. Jovita Carranza, Administrator. [FR Doc. 2020-09963 Filed 5-7-20; 8:45 am]

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