Justification Memo

MEMORANDUM
DATE:

August 25, 2023

TO:

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

FROM:

Digitally signed by LARRY
LARRY
STUBBLEFIELD
Larry Stubblefield
Date: 2023.08.25 16:51:30
Acting Associate Administrator STUBBLEFIELD -04'00'

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 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 seeks 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.
The estimated total hourly burden requested under this revised SBA Form 1010
information collection is 3941 hours. The submission includes only the hourly burden related to
completing the Social Disadvantage Narrative. The estimated burden hours per response for each
current participant required to submit a new application is 1.0. The estimated number of such
current participants is 3941.

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
processing 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 was an unanticipated event as discussed in 55 CFR 1320.13(a)(2)(ii). Given that the
injunction was ordered by a federal court and was effective immediately upon release of the
decision, SBA was not able to predict the necessary information collection. Finally, given that
SBA must revise the application to comply with the court’s order, 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 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.