Small Business Administration, Rescinding Unnecessary Notice and Comment Procedures, RIN 3245-AI74 — Federal Register Vol. 91, No. 167, August 31, 2026

Summary

Federal Register, Vol. 91, No. 167, Monday, August 31, 2026, beginning on page 55737: a Small Business Administration final rule under 13 CFR Part 101 (RIN 3245–AI74), Rescinding Unnecessary Notice and Comment Procedures. The analysis section states that SBA decided to rescind the policy in § 101.108, which the text says was redesignated and revised in 1996. SBA states that the rule is exempt from prior notice and comment because it is a general statement of policy. The text gives annual cost savings of $28,029 for the Administration and $4,311 per year for the public, for a quantified annual total of $32,340. The amendatory text removes and reserves § 101.108, and the document closes with the name Kelly Loeffler, Administrator.

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Full text

55737 Federal Register/Vol. 91, No. 167/Monday, August 31, 2026/Rules and Regulations
[FR Doc. C3–2026–15190 Filed 8–28–26; 8:45 am]
BILLING CODE 0099–10–D
SMALL BUSINESS ADMINISTRATION
13 CFR Part 101
RIN 3245–AI74
Rescinding Unnecessary Notice and
Comment Procedures
AGENCY: U.S. Small Business
Administration.
ACTION: Final rule.
SUMMARY: This final rule rescinds the
Administration’s policy of engaging in
notice and comment rulemaking even
where the Administrative Procedure Act
does not require notice and comment
rulemaking. As a result of this final rule,
the Administration will follow the
default requirements of the
Administrative Procedure Act. The
Administration will reserve the right to
engage in voluntary notice and
comment rulemaking even where not
required by the Administrative
Procedure Act as a matter of policy on
a case by case basis.
DATES: The final rule is effective August
31, 2026.
FOR FURTHER INFORMATION CONTACT:
Jennifer Prescott, Deputy General
Counsel, Jennifer.Prescott@sba.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The Administrative Procedure Act
(APA) generally requires, before an
agency promulgates a regulation
through informal rulemaking, a ‘‘notice
of proposed rule making’’ to be
published in the Federal Register. 5
U.S.C. 553(b). The agency then must
‘‘give interested persons an opportunity
to participate in the rule making
through submission of written data,
views, or arguments with or without
opportunity for oral presentation.’’ 5
U.S.C. 553(c). These strictures, however,
do not apply to matters ‘‘relating to
agency management or personnel or to
public property, loans, grants, benefits,
or contracts.’’ 5 U.S.C. 553(a)(2).
In 1974, the Small Business
Administration (SBA) promulgated a
regulation at 13 CFR 101.9 titled ‘‘Public
participation in rulemaking’’ that
provided, in part, that, ‘‘SBA is
governed as a matter of policy by the
public participation provisions of the
Administrative Procedure Act, 5 U.S.C.
553, notwithstanding the exemptions
given by such section 553 for matters
relating to agency management or
personnel, or to public property, loans,
grants, benefits, or contracts.’’ See 39 FR
43815, December 19, 1974. This rule
was subsequently redesignated and
revised in 1996 to §101.108 titled ‘‘Has
SBA waived any of the public
participation exemptions of the
Administrative Procedure Act?’’ which
states, ‘‘Yes. Despite these exemptions,
SBA will follow the public participation
requirements of the Administrative
Procedure Act, 5 U.S.C. 553, in
rulemakings relating to public property,
loans, grants, benefits, or contracts.’’ See
61 FR 2394, January 26, 1996.
II. Analysis
The SBA has decided to rescind the
policy in §101.108. Upon
reconsideration and in the Agency’s
discretion, the SBA has decided that it
is proper to return to the text of the APA
regarding its enumerated exceptions for
matters relating to public property,
loans, grants, benefits, and contracts.
The SBA has a new policy of acting
more nimbly in response to changing
circumstances and this rescission will
allow for that. To the extent public
participation is determined to be
advantageous, the SBA may still request
public comments through notices of
proposed rulemaking. The SBA will
continue to comply with the APA’s
notice and comment requirements
where required and otherwise has
discretion to seek public input through
whatever means it determines
appropriate.
III. Justification for Final Rule
This rule is exempt from the prior
notice and comment requirements of the
Administrative Procedure Act (APA)
because it is a general statement of
policy. 5 U.S.C. 553(b)(A). This policy
was originally published in the Federal
Register as a notice from the
Administrator, 36 FR 16716 (August 25,
1971), and only subsequently codified
in the Code of Federal Regulations as an
organizational matter, 39 FR 43815
(December 19, 1974). Alternatively, it is
a rule of agency organization,
procedure, and practice because it is not
binding on outside parties and only
affects the manner in which they may
present their views to the agency. 5
U.S.C. 553(b)(A). Further, because it is
not a substantive rule, and because it
relieves a restriction, this rule is exempt
from the APA’s requirement of a 30-day
delay in the effective date. See 5 U.S.C.
553(d).
IV. Compliance With Executive Orders
12866, 12988, 13132, 14192, 14219, and
the Paperwork Reduction Act (44
U.S.C. Ch. 35), the Congressional
Review Act (5 U.S.C. 801–808), and the
Regulatory Flexibility Act (5 U.S.C.
601–612).
Executive Orders 12866 and 13563
Executive Order (E.O.) 12866,
Regulatory Planning and Review, and
E.O. 13563, Improving Regulation and
Regulatory Review, direct agencies to
assess costs and benefits of available
regulatory alternatives and, if regulation
is necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). The Office of Management and
Budget determined that this rule will be
a ‘‘significant regulatory action,’’ and
therefore, is subject to review under
section 6(b) of E.O. 12866, dated
September 30, 1993. Accordingly, this
rule has been submitted to OMB for
review.
Cost-Benefit Analysis
This rule rescinds 13 CFR 101.108, an
SBA policy that voluntarily imposed
APA notice-and-comment procedures
even where such procedures were not
legally required. The rescission returns
the SBA to the default rulemaking
requirements of the APA (5 U.S.C. 553),
aligning internal procedure with statute
and eliminating SBA’s self-imposed
procedural burden. The rule has the
primary benefit of increasing regulatory
efficiency and responsiveness by
removing an internal requirement that is
not required by law, which slows down
regulatory and deregulatory actions.
Specifically, removing the requirement
to solicit comments on rulemakings
involving public property, loans, grants,
benefits, or contracts:
• Allows policy changes and their
associated benefits to be implemented
more quickly, enhancing agility in
responding to evolving programmatic or
operational needs in areas where
Congress has given the SBA broad
discretion.
• Streamlines agency decision-
making for programs relating to public
property, loans, grants, benefits, or
contracts.
• Saves staff time and resources that
would otherwise be devoted to
preparing, publishing, and responding
to public comments.
The benefits of more quickly adopting
new policy changes cannot be
quantified as they will depend on the
impact of future rules which are
unknown. Depending on the nature of
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1 Federal Register :: Document Search Note
semiannual regulatory agendas were excluded.
2 The Salary of a GS 13 Step 5 in the Washington,
DC area is $138,024 in 2026 (SALARY TABLE
2026–DCB), so 40 hours of time is $2,654. This is
then multiplied by 1.6 to account for benefits and
overhead.
3 2024 Occupational Employment and Wage
Statistics
future proposed rules, quicker policy
adoption may benefit the
Administration, the general public, or
both. The benefits of the rule are also
expected to result in streamlined
decision-making and meaningful
reductions in implementation costs and
time burdens for the SBA, some of
which are difficult to quantify. The cost
savings of reducing agency resources
expenditures, however, can be
quantified. Between 2021 and 2025, the
Administration proposed 33 rules.1
Assuming response to comments on a
proposed rule requires an average of 40
hours of an employee at GS–13 Step 5
this will be $4,247 per avoided
proposed rule.2 Assuming the
Administration will continue
rulemaking at a similar rate as before
this change, the annual cost savings of
this change would be $28,029. The
general public will also see cost savings
in avoided time drafting and submitting
public comments. Assuming the public
spends an average of 20 hours writing
comments on each rule and their time
is valued at the average U.S. hourly
wage of $32.66,3 the public will be
expected to save $4,311 per year. In
total, the quantified annual cost savings
of this rule is $32,340.
There may be potential disbenefits of
avoiding the public comment period, if
the public comments offer information
and suggestions that improve the SBA’s
regulations. The associated disbenefits
are expected to be minor as the SBA can
still solicit public comments on a case
by case basis whenever it perceives the
benefits of doing so are expected to
exceed the costs.
The SBA has considered maintaining
the current policy or replacing it with a
narrower procedural commitment (e.g.,
limiting it to certain programs).
However, the SBA believes its rescission
offers a clearer legal and operational
baseline in line with the APA.
Executive Order 12988
This action meets applicable
standards set forth in section 3(a) and
3(b)(2) of Executive Order 12988, Civil
Justice Reform, to minimize litigation,
eliminate drafting errors and ambiguity,
reduce burden, and provide a clear legal
standard for affected conduct. The
action does not have retroactive or
preemptive effect.
Executive Order 13132
This rule does not have Federalism
implications as defined in Executive
Order 13132, Federalism. It 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
levels of government, as specified in the
Executive Order. As such, it does not
warrant the preparation of a Federalism
Assessment.
Executive Order 14192
This final rule is expected to be an
Executive Order 14192 deregulatory
action with a quantified annualized net
savings of $32,340 in 2026 dollars. This
rule will remove 13 CFR 101.108 in its
entirety.
Executive Order 14219
On February 19, 2025, the President
issued Executive Order 14219, Ensuring
Lawful Governance and Implementing
the President’s ‘‘Department of
Government Efficiency’’ Deregulatory
Initiative, which further emphasized the
goal of the Administration to alleviate
the regulatory burdens placed on the
public. Under Executive Order 14219,
agencies must evaluate their existing
regulations to determine which ones
should be repealed, replaced, or
modified. SBA has engaged in this
process and has identified 13 CFR
101.108 as appropriate for removal in
accordance with Executive Order 14219.
Paperwork Reduction Act
The SBA has determined that this rule
does not impose additional reporting or
recordkeeping requirements under the
Paperwork Reduction Act, 44 U.S.C.
chapter 35.
Congressional Review Act
Subtitle E of the Small Business
Regulatory Enforcement Fairness Act of
1996, also known as the Congressional
Review Act, 5 U.S.C. 801 et seq.,
provides that before a rule may take
effect, the agency promulgating the rule
must submit a rule report, which
includes a copy of the rule, to each
House of the Congress and to the
Comptroller General of the United
States. SBA will submit a report
containing this rulemaking and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States. The Office of Information and
Regulatory Affairs has reviewed this
rulemaking and found that it does not
meet the criteria set forth in 5 U.S.C.
804(2).
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA),
5 U.S.C. 601, requires administrative
agencies to consider the effect of their
actions on small entities, small
nonprofit enterprises, and small local
governments. Pursuant to the RFA,
when an agency issues a rulemaking,
the agency must prepare a regulatory
flexibility analysis which describes the
impact of the rule on small entities.
However, the RFA requires such
analysis only where notice and
comment rulemaking is required. As
discussed above, SBA is not required to
publish the rule for notice and comment
in accordance with Section 553(b)(A) of
the APA. Accordingly, SBA is not
required to conduct a regulatory
flexibility analysis and is publishing
this rule as a final rule without advance
notice and public comment.
List of Subjects in 13 CFR Part 101
Administrative practice and
procedures, Authority delegations
(Government agencies),
Intergovernmental relations,
Investigations, Reporting and
recordkeeping requirements.
For the reasons set forth in the
preamble, SBA amends 13 CFR part 101
as follows:
PART 101—ADMINISTRATION
■ 1. The authority citation for part 101
continues to read as follows:
Authority: 5 U.S.C. 552 and App. 3, secs.
2, 4(a), 6(a), and 9(a)(1)(T); 15 U.S.C. 633,
634, 687; 31 U.S.C. 6506; 44 U.S.C. 3512; 42
U.S.C. 6307(d); 15 U.S.C. 657h; E.O. 12372
(July 14, 1982), 47 FR 30959, 3 CFR, 1982
Comp., p. 197, as amended by E.O. 12416
(April 8, 1983), 48 FR 15887, 3 CFR, 1983
Comp., p. 186.
§101.108 [Removed and Reserved]
■ Remove and reserve § 101.108.
Kelly Loeffler,
Administrator.
[FR Doc. 2026–17731 Filed 8–28–26; 8:45 am]
BILLING CODE 8026–09–P
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