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Federal Register / Vol. 86, No. 213 / Monday, November 8, 2021 / Rules and Regulations 84, 123 Stat. 2190, 2405, required the Federal Acquisition Regulations FAR
to be amended to include a new requirement for a written justification of sole-source 8a awards over $20
million. The FAR increased this threshold to $22 million due to inflation on July 2, 2015. 80 FR 38293, 38296.
While the section 811 requirement for a justification and approval applied to all civilian and defense agencies, section 823 of NDAA 2020 increased the threshold to $100 million only for the DoD. As such, this rule amends SBAs regulations to increase the justification and approval requirement to $100
million only with respect to DoD 8a contracts. In addition, DoD, the General Services Administration GSA, and the National Aeronautics and Space Administration NASA are charged with amending the FAR to adjust statutory acquisition-related thresholds for inflation every five years. On October 2, 2020, DoD, GSA, and NASA
published a final rule in the Federal Register amending the FAR to implement new inflationary adjustments. 85 FR 62485. As part of that final rule, the $22 million justification and approval threshold authorized by section 811 of NDAA
2010 was increased to $25 million.
Thus, in addition to increasing the threshold to $100 million for DoDrelated 8a procurements, this rule also increases the justification and approval threshold from $22 million to $25
million for all other agencies. This rule amends 124.502c17 and 124.506b5 to adjust the justification and approval thresholds accordingly.
In addition to the justification and approval and 8a sole source thresholds identified above that were raised in response to the inflationary adjustments made to the FAR, that same FAR rule also adjusted other SBA-related contacting dollar thresholds for inflation. 85 FR 62485. Section 864 of the National Defense Authorization Act of 2021, Public Law 116283, subsequently amended the Small Business Act to set the 8a, HUBZone, and WOSB sole source thresholds for manufacturing contracts to $7,000,000.
As such, this rule incorporates the FAR
changes into SBAs regulations except where section 864 retained a $7 million sole source threshold amount for manufacturing contracts. Specifically, this rule adopts the inflationary adjustments made to the sole source thresholds in the FAR for the 8a BD
Program by amending 124.506a2ii of SBAs regulations, the Service-Disabled Veteran-Owned Small Business Concern Program by
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amending 125.23b1 of SBAs regulations, the Historically Underutilized Business Zone Program by amending 126.612b1 and 2 of SBAs regulations, and the WomenOwned Small Business Program by amending 127.503c2 and 127.503d2 of SBAs regulations.
SBA is also updating a threshold for its Small Business Subcontracting Program, which is contained in 125.3c.
SBA is also making corrections to 126.200f and 126.700b1.
Currently both sections contain an incorrect reference to 126.5. The correct cross reference should be to 125.6, and this rule corrects the typographical errors.
Compliance With Executive Orders 12866, 13563, 12988, 13132, 13175, the Congressional Review Act 5 U.S.C.
801808, the Paperwork Reduction Act 44 U.S.C. Ch. 35, the Regulatory Flexibility Act 5 U.S.C. 601612, and the Administrative Procedure Act Executive Order 12866
The Office of Management and Budget OMB has determined that this direct final rule does not constitute a significant regulatory action under Executive Order 12866.
Executive Order 13563
Executive Order 13563 reaffirms the principles of Executive Order 12866
while calling for improvements in the nations regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 also requires that regulations be based on the open exchange of information and perspectives among state and local officials, affected stakeholders in the private sector, and the public as a whole. SBA has developed this rule in a manner consistent with these requirements. While developing this rule, SBA responded to specific inquiries from government officials and the public regarding the implementation of the statutory required changes.
Executive Order 12988
This action meets applicable standards set forth in sections 3a and 3b2 of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce
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burden. The action does not have retroactive or preemptive effect.
Executive Order 13132
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect 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. This direct final rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or the distribution of power and responsibilities among the various levels of government.
SBA has analyzed this direct final rule and has determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Executive Order 13175
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
Congressional Review Act, 5 U.S.C. 801
808
OMBs Office of Information and Regulatory Affairs has determined that this rule is not a major rule under subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 also known as the Congressional Review Act, 5 U.S.C. 8042.
Paperwork Reduction Act, 44 U.S.C. Ch.
35
SBA has determined that this direct final rule does not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act, 44
U.S.C., chapter 35.
Regulatory Flexibility Act, 5 U.S.C. 601
612
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.

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