Comment on FR Doc # 2026-11765
Dan DuckwitzOpposeIndividual
Summary: Dan Duckwitz opposes the proposed rule, arguing that the SBA has failed to demonstrate that the current individualized standard for social disadvantage is constitutionally deficient or unworkable. He contends that the proposal shifts the inquiry away from the statutory definition, lacks a sufficient Regulatory Impact Analysis regarding the broader Small Disadvantaged Business (SDB) framework, and fails to consider less disruptive alternatives.
This comment opposes the proposed rule (Docket No. SBA-2026-0133; RIN 3245-AI75). The full comment is attached as a PDF file.
In summary, the comment asks SBA to withdraw or substantially revise the proposal and raises the following significant comments requiring response in any final rule:
1. SBA has not identified a constitutional deficiency in the post-Ultima individualized standard that this rule cures. SBA’s own preamble concedes it has made all determinations under that standard since Ultima (91 Fed. Reg. 35434). After Loper Bright v. Raimondo, SBA’s reading of 15 U.S.C. 637(a)(5) receives no deference.
2. The proposal shifts the inquiry from the applicant’s own experience to third-party institutional policies, moving away from the statutory definition.
3. It appears to broaden eligibility rather than individualize it.
4. It does not analyze effects on the Small Disadvantaged Business framework (13 CFR 124.1001; FAR 52.219-1) or the governmentwide SDB goal (15 U.S.C. 644(g)), despite including a severability section. This omission implicates the reasoned-decisionmaking standard of Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29.
5. The Regulatory Impact Analysis is scoped only to roughly 4,190 8(a) applicants and omits the broader SDB and scorecard population.
6. SBA has not shown the individualized framework is unworkable.
7. The proposal’s reliance on Title VII case law (Ames) does not fit the Small Business Act definition.
8. The “material harm” standard is insufficiently defined.
9. SBA’s rejection of the individualized alternative is conclusory and unsupported.
The comment also objects to the 30-day comment period and requests extension to at least 60 days consistent with E.O. 13563. Full argument and record citations are in the attachment.