Treasury Extends Safe Harbor Repayment Deadline, Addresses Counting Employees

May 6, 2020

Last night, the Treasury released FAQ #43 and #44 in the Frequently Asked Questions under Program Rules. Question #43 is asking if it is possible for an extension of the May 7, 2020, safe harbor repayment deadline established in FAQ #31.  The response extends the safe harbor repayment date to May 14, 2020.

43. Question: FAQ #31 reminded borrowers to review carefully the required certification on the Borrower Application Form that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” SBA guidance and regulations provide that any borrower who applied for a PPP loan prior to April 24, 2020, and repays the loan in full by May 7, 2020, will be deemed by SBA to have made the required certification in good faith. Is it possible for a borrower to obtain an extension of the May 7, 2020 repayment date?

Answer: SBA is extending the repayment date for this safe harbor to May 14, 2020. Borrowers do not need to apply for this extension. This extension will be promptly implemented through a revision to the SBA’s interim final rule providing the safe harbor. SBA intends to provide additional guidance on how it will review the certification prior to May 14, 2020.

44. Question: How do SBA’s affiliation rules at 13 C.F.R. 121.301(f) apply with regard to counting the employees of foreign and U.S. affiliates?

Answer: For purposes of the PPP’s 500 or fewer employee size standard, an applicant must count all of its employees and the employees of its U.S and foreign affiliates, absent a waiver of or an exception to the affiliation rules. 13 C.F.R. 121.301(f)(6). Business concerns seeking to qualify as a “small business concern” under section 3 of the Small Business Act (15 U.S.C. 632) on the basis of the employee-based size standard must do the same.

Click here to read the latest (5.5.2020) Frequently Asked Questions for the Paycheck Protection Program Loans.

Additionally, the Treasury released Interim Final Rule on Nondiscrimination and Additional Eligibility Criteria last night. This interim final rule affirms the following questions:

  1. 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?
  2. Do student workers count when determining the number of employees for PPP loan eligibility?

Click here to read the full responses to the Interim Final Rule on Nondiscrimination and Additional Eligibility Criteria.

Our team is working around the clock to ensure we stay up to date on the latest guidance and information to assist you and your business during this unique time. For further assistance, please do not hesitate to reach out to your Windham Brannon advisor or email us at

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