Justification Memo 9/28/23

MEMORANDUM
DATE:

September 28, 2023

TO:

Susan Minson
SBA Desk Officer
Office of Information and Regulatory Affairs (OIRA)
Office of Management and Budget (OMB)

Digitally signed by LARRY
LARRY
STUBBLEFIELD
2023.09.28 16:53:30
STUBBLEFIELD Date:
-04'00'

FROM:

Larry Stubblefield
Acting Associate Administrator
Office of Government Contracting and Business Development
U.S. Small Business Administration (SBA)

SUBJECT:

Request for Emergency Processing of an Information Collection, OMB Control
No. 3245-0331

In accordance with 5 CFR 1320.13(a), SBA’s Office of Government Contracting and
Business Development is requesting emergency use of an information collection for six months.
The U.S. Small Business Administration (SBA or Agency) seeks emergency use of a revised
version of SBA Form 1010, the 8(a) Business Development Program Application (“8(a)
Application”) (OMB Control No. 3245-0331).
The 8(a) Program is essential to SBA’s mission. It is designed to enhance the business
development of small business concerns owned and controlled by socially and economically
disadvantaged individuals whose ability to compete in the free enterprise system has been impaired
due to diminished capital and credit opportunities as compared to others in the same or similar line
of business. Historically, over 2,000 entrepreneurs apply for 8(a) Program certification each year.
SBA Form 1010 is used by individuals requesting certification of their business to be eligible for
government contracting awards.
On July 19, 2023, the U.S. District Court for the Eastern District of Tennessee enjoined
SBA from administering the 8(a) Program using a “rebuttable presumption” of social disadvantage
for members of certain identified groups to determine eligibility for the 8(a) Program. Ultima
Servs. Corp. v. U.S. Dep’t of Agric., 2:20-CV-00041-DCLC-CRW (E.D. Tenn. Jul. 19, 2023). In
response, SBA sought and received emergency approval to temporarily modify its application
process by requiring a submission of a narrative of social disadvantage for all those who previously
were approved under the rebuttable presumption and are attempting to receive contract awards
under the 8(a) program.
SBA now seeks clearance to use the newly developed questionnaire for individual-owned
applicants to the 8(a) Program and current participants in the program who have not yet submitted
narratives to demonstrate their social disadvantage. SBA has consulted with the Department of
Justice and the White House Domestic Policy Counsel in developing this information collection.
The estimated burden hours per response for each participant is 1 hour. The estimated number of
such participants in the next twelve months is 6,286. This brings the total burden to 6,286 hours.
In addition to seeking emergency/expedited clearance, SBA will submit a request for normal
clearance for the approved use of the revised form beyond the maximum six-month period
provided by emergency approval.

As required by 5 CFR 1320.13(a)(1), SBA has determined this collection of information is
needed prior to the expiration of the time periods established under 5 CFR Part 1320 due to the
injunction by the U.S. District Court for the Eastern District of Tennessee. As a result, approval of
this collection of information is needed as soon as possible to continue operating the 8(a) Program.
Pursuant to 5 CFR 1320.13(a)(2), SBA has determined that the Agency cannot reasonably
comply with normal clearance procedures. Public harm will result if SBA is not granted emergency
clearance to use this information collection as SBA is currently unable to accept or process
applications or authorize the award of 8(a) contracts due to the Court’s ruling in Ultima. 5 CFR
1320.13(a)(2)(i); Ultima Servs. Corp. v. U.S. Dep’t of Agric., 2:20-CV-00041-DCLC-CRW (E.D.
Tenn. Jul. 19, 2023). Without use of this information collection, SBA cannot certify small,
disadvantaged businesses to receive critical business development assistance. The Court’s decision
in Ultima Services was an unanticipated event, as discussed in 55 CFR 1320.13(a)(2)(ii). Given
that the injunction was ordered by the Court and was effective immediately upon release of the
decision, SBA was not able to predict the revisions necessary to the form. Finally, given that SBA
must revise the application to comply with the Court’s July 19 order and August 31 guidance, the
use of normal clearance procedures is also reasonably likely to prevent the collection of
information under 5 CFR 1320.13(a)(2)(iii). Under normal clearance procedures, SBA would not
be able to process new 8(a) applications or consider submissions of social disadvantage from
current program participants in connection with the award of 8(a) contracts for at least 90 days to
allow for the 60- and 30-day comment periods, halting the program. The last two months of the
fiscal year are critical to the success of the 8(a) program, as 46% of the 8(a) contract awards and
49% of the 8(a) contract dollars in FY 22 were awarded during August and September. Suspending
the award of 8(a) contracts pending a normal clearance process at this time would be catastrophic.
Given that the collection of information is needed prior to the expiration of time periods
established under 5 CFR Part 1320, is essential to the mission of the Agency, and that SBA cannot
reasonably comply with normal OMB clearance procedures, the Agency respectfully requests that
OMB grants emergency processing for the revised 8(a) Application for six months. SBA will
pursue OMB approval for the revised form and reinstatement of the information collection to
obtain a three-year expiration date.