SBA Drops Its Voluntary Notice-and-Comment Commitment on Contracts, Loans, Grants and Benefits

What changed

On 31 August 2026 the Small Business Administration published a final rule removing and reserving 13 CFR 101.108 (91 FR 55737, RIN 3245-AI74). The rule was effective on publication and was issued without prior notice and comment.

Section 101.108 was SBA's own commitment, first announced in 1971, codified in 1974 at 39 FR 43815 and revised in 1996 at 61 FR 2394, to follow the public participation provisions of the Administrative Procedure Act even in rulemakings the APA exempts. The APA exemption at 5 U.S.C. 553(a)(2) covers matters relating to agency management or personnel, or to public property, loans, grants, benefits, or contracts. With 101.108 gone, SBA returns to the statutory default and may issue rules in those areas without a proposed rule or comment period. SBA states it retains discretion to seek comment case by case, and gives as its rationale a new policy of acting more nimbly in response to changing circumstances.

What a contractor has to do differently

The practical effect is on monitoring, not on any current obligation. The word contracts in 5 U.S.C. 553(a)(2) is what makes this relevant to small business federal contractors. Rules touching the 8(a) Business Development program, HUBZone, WOSB and EDWOSB, the Veteran Small Business Certification program, size and status recertification, joint venture and mentor-protege arrangements, and set-aside administration are the kind of subject matter the exemption reaches. Where SBA previously would have published a proposed rule with a comment window, it can now publish a final rule that is effective on or shortly after publication.

Two consequences follow. First, the window between publication and effect may shrink or disappear, so a firm that tracks SBA program changes through proposed rules alone will start missing them. Watching final rules and the SBA agency page in the Federal Register directly is now the safer habit. Second, the Regulatory Flexibility Act analysis that normally accompanies a small business rule may not be prepared. SBA notes in this rule that the RFA requires such analysis only where notice and comment rulemaking is required, and did not prepare one here.

SBA quantified the change as an annualized net savings of $32,340, made up of about $28,029 in agency staff time and $4,311 in public comment-drafting time, and identified the removal as a deregulatory action under Executive Order 14192 and a review item under Executive Order 14219. The Office of Information and Regulatory Affairs found the rule does not meet the criteria at 5 U.S.C. 804(2).

Primary sources

Final rule, Rescinding Unnecessary Notice and Comment Procedures, 91 FR 55737 (31 August 2026), FR Doc. 2026-17731: https://www.federalregister.gov/d/2026-17731

Underlying authority: 5 U.S.C. 553(a)(2) and 553(b)(A). Prior codifications at 39 FR 43815 (19 December 1974) and 61 FR 2394 (26 January 1996).