oversight

Education Regulations: Reasons for Delays in Issuance

Published by the Government Accountability Office on 1990-11-15.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

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                                                         EDUCATION
                                                         REGULATIONS
                                                         Reasons for Delays in
                                                         Issuance


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                      -
                   United States
GAO                General Accounting Office
                   Washington, D.C. 20648

                   Human Resources Division

                   B-239686

                   November l&l990

                   The Honorable Augustus F. Hawkins
                   Chairman, Committee on Education
                     and Labor
                   House of Representatives

                   The Honorable Pat Williams
                   Chairman, Subcommittee on
                     Postsecondary Education
                   Committee on Education and Labor
                   House of Representatives

                   The Honorable William F. Goodling
                   Ranking Minority Member
                   Committee on Education and Labor
                   House of Representatives

                   This briefing report responds to your request that we review the rea-
                   sons for delays in the Department of Education’s issuance of regulations
                   related to three laws. We focused on the 83 regulations issued under the
                   (l).‘Education of the Handicapped Act amendments of 1986 and 1988,
                   (2) Higher Education amendments of 1986 and 19”87, and (3) Hawkins-
                   Stafford Elementary and Secondary School Improvement amendments
                   of 1988, We also obtained information on Education’s efforts to improve
                   its regulation issuance. On March 20, 1990, we briefed your offices on
                   our preliminary results. This report summarizes and expands on that
                   information. (See app. I.)


                   Education is required by statute to issue regulations within 240 days
Results in Brief   after the Congress enacts legislation or to seek an extension from the
                   appropriate committees. For the 83 regulations we reviewed, only 13 (16
                   percent) were issued within 240 days. For the 70 regulations not issued
                   within the time frame, Education submitted to the committees, as
                   required, a schedule of revised issue dates. Fifty-one (73 percent) of the
                   70 regulations were not issued by the revised dates. An average of 389
                   days-ranging    from ‘72 to 988 days-were spent to develop the 80 regu-
                   lations that had been issued at the time of our review.

                   Education officials stated that the primary reasons regulations were not
                   issued within established time frames included (1) the sheer volume of
                   regulations to be issued during this time frame, (2) lengthy periods



                   Page   1                                  GAO/HRD-91-4BR   Education   Regulations
             B-239696




             required to obtain and respond to comments on the regulations, (3) com-
             plex legal and policy issues involved with the regulations, and (4) the
             fact that they were developing the regulations while performing their
             normal program duties.

             As percentages of the total time required to issue the regulations, Edu-
             cation’s program offices spent an average of about 53 percent, and its
             reviewing offices averaged about 23 percent. Obtaining the Office of
             Management and Budget’s (OMB) clearance and responding to public
             comments each averaged about 11 percent of the total issuance time,
             while obtaining the Office of the Secretary’s approval averaged about 2
             percent.


             Section 431(g) of the General Education Provisions Act requires the Sec-
Background   retary of Education to issue regulations within 240 days of the enact-
             ment of legislation or to seek an extension. Within 60 days of enactment,
             the Secretary is required to submit to the appropriate committees a
             schedule of regulations to be issued within the following 180 days. If the
             schedule for issuance cannot be met, the Secretary is to submit a revised
             schedule for approval.

             All 83 regulations included in our review were classified as nonmajor
             regulations.’ For these rules, Education is to submit both the proposed
             (Notice of Proposed Rulemaking) and final rules to OMB 10 days before
             publication, In each instance, OMB is expected to complete its review
             within 10 days. However, the lo-day periods may be extended upon
             request from the Director, OMB. Given such notice, agencies are not to
             publish a proposed or final rule until OMB’S views are considered. These
             procedures must be followed unless they conflict with deadlines
             imposed by statutes or judicial orders.

             Education assigns regulation development to offices with program
             expertise and to appropriate program and staff offices to ensure compli-
             ance with legal, policy, and other requirements. The Office of the Secre-
             tary and OMB must approve proposed and final regulations before they
             are published in the Federal Register for public comment. Figure 1 illus-
             trates the general sequence of events in Education’s development of
             regulations.

             ‘Regulations determined by executive departments and agencies to affect the economy by less than
             $100 million each year and not have a major impact on consumers, industries, or federal, state, or
             local governments.



             Page   2                                                 GAO/HRlS914BR      Education   Regulations
                                         E233386




Figure 1: Qeneral Step8 in Education’s
Regulation Development

                                         I
                                                          (1)                                        (10)
                                              Enactment of Legislation                     Publish Final Regulation


                                                                                       \
                                                          lL
                                                           .

                                                          (2)                                         (9)
                                              Analyze Legislation and                       If Needed, Respond to
                                                Determine Whether                          Letters From Members of
                                              Regulations Are Needed                             the Congress




                                                          (3)                                         (8)
                                               Prepare, Review, Obtain                      Prepare, Review, and
                                             Internal Comments on, and                     Revise Final Regulation
                                               Revise Draft Regulation                     (Repeat Steps 4 and 5)
                                                                          I                                                I



                                                                                       r
                                                 Send Draft Regulation                      Receive, Analyze, and
                                                to Secretary for Review                       Incorporate Public
                                                     and Approval                                 Comments




                                                          (5)                                         (6)
                                                If Approved, Secretary                     If Approved, Proposed
                                                      Sends Draft                  ’       Regulation Is Published
                                                Regulation to OMB for                      in Federal Register for
                                                 Review and Approval                           Public Comment
                                                                                       \




                                         Page    3                            GAO/HRD-914BR      Education   Regulations
                                                           B-233636




                                                           We interviewed Education and OMB officials on their roles and responsi-
Scopeand                                                   bilities in the regulatory process, including reasons why the regulations
Methodology                                                were delayed. We charted the number of calendar days to process the 83
                                                           regulations (see app. II), and obtained information on actions to expedite
                                                           the regulatory process. We also obtained additional information on those
                                                           regulations with the longest issuance times from five program offices:
                                                           Office of Education Research and Improvement, Office of Elementary
                                                           and Secondary Education, Office of Postsecondary Education, Office of
                                                           Special Education and Rehabilitative Services, and Office of Vocational
                                                           and Adult Education. (See app. III.)


                                                           Of the 83 regulations reviewed, only 13 (16 percent) were issued within
Regulations Were Not                                       the 240-day time frame. Twelve of the 13 were technical amendments
Issued Within                                              that essentially incorporate statutory text into preexisting regulations,
Established Time                                           thereby eliminating many of the processing steps necessary for other
                                                           regulations. Although Education submitted a revised schedule of new
Frames                                                     issuance dates for the 70 regulations not issued within the time frame,
                                                           51(73 percent) of these still were not issued by the revised dates.

                                                           At the completion of our review in mid-April 1990,80 of the 83 regula-
                                                           tions had been issued. The average issuance time was 389 days, or
                                                           nearly 13 months. (See table 1.) For the three unissued regulations, two
                                                           had been in process for nearly 600 days and another for about 1,290
                                                           days as of mid-April 1990.


Table 1: Number of Regulations Issued by Days and Overall Average
                                                                                                                                           Average
                                                                       Number of regulations issued within                               number of
                                                                               241-365        366-540      More than                     days after
Legislation
.----._-.-...-      ..-..-.-.-                                 O-240 days          days          days       540 days       Total         enactment
Education of the Handicapped Act
Amendments
..__..-._....- ..^.. _..... ..“._...I..-- ..___
                                             -_.---ll---    __..-- ----    1           5             4              7          17                      553
Hawkins-Stafford School Improvement
Act Amendments                                                            3            1           16              0          20                   382
Higher Education Act Amendments
    ._..-. _ - ..-.. .-. .                      ---.                      9          21             7              6       __---43                 326
Total regulations                                                         13         27            27             13          80
Overall average davs                                                                                                                               389


                                                           The average of 389 days to issue the 80 regulations reflects both Educa-
                                                           tion’s and OMB'S involvement in the regulatory issuance process. Educa-
                                                           tion, responsible for the development and processing of regulations,
                                                           averaged 348 (89 percent) of the 389 days-ranging    from 63 to 912


                                                           Page   4                                        GAO/IUD-914BR     Education   Regulations
                                        days. OMB, essentially a reviewing office, averaged 41 (11 percent) of the
                                        389 days-ranging     from 4 to 116 days.

                                        OMB  has a total of 20 days to complete its review of regulations-10
                                        days each for the proposed and final regulations. However, 58 (73 per-
                                        cent) of the 80 issued regulations were not reviewed within this time
                                        frame. (See app. 11.)On average, OMB took 34 days to review 51 proposed
                                        regulations and 18 days to review the final versions of the 80 issued
                                        regulations. (See table 2.) Although 80 regulations were issued, 29 were
                                        issued as technical or emergency regulations, which require no publica-
                                        tion of a proposed regulation.

Table 2: OMB’s Average Number of Days
to Review Regulations                                                                                        31 or
                                                                             O-10      11-20     21-30       more                        :ii%iit
                                        Regulation
                                        --                                   days       days      days       days           Total          of days
                                        Proposed
                                        -------                                  6         13         12         20            51                   34
                                        Final                                   36         24          7         13            80                   16




                                        As expected, Education’s program offices used most of the time in the
Most Processing Time                    preparation of Department regulations. Program offices are responsible
Spent by Program                        for developing and drafting the regulation, as well as obtaining and
Offices                                 responding to both internal and external comments. As shown in table 3,
                                        these offices averaged 53 percent of the total time to issue regulations.

Table 3: Percentage Shares of Time
Spent issuing Regulations                                                                        Average percent of time from legislation
                                                                                                      enactment to reaulation issuance0
                                        Education proaram offices                                                                                   53
                                        Education reviewing offices                                                                                 23
                                        ---
                                        Office of the Secretary                                                                                      2
                                        OMB                                                                                                         11
                                        Public comment period                                                                                       11
                                        -------           __--
                                        Total                                                                                                    100
                                        aThis analysis represents 46 of the 80 regulations issued at the time of our review for which tracking
                                        information was available. For 34 of the 46 regulations, public comments were obtained.




                                        Page    5                                                    GAO/HRD-91-4BR       Education   Regulations
                       A major factor affecting processing time was the substantial increase in
Major Reasonsfor Not   regulatory work load from September 1986 through April 1988, Educa-
Meeting Established    tion officials stated. They added that some regulations addressed com-
Time Frames            plex legal and policy issues, requiring departmental staff to research
                       complex legislative language, resolve policy questions, and balance
                       responsibilities between federal and state or state and local governments
                       in the final regulations.

                       Officials also said a large amount of time was spent obtaining and
                       responding to internal and external-including    oMB-comments on the
                       regulations. In this regard, Education must provide at least 30 days for
                       the public to comment on proposed regulations.

                       Education officials also told us that concurrent duties and responsibili-
                       ties by program and reviewing offices contributed to delays in regula-
                       tion processing. For example, program offices that write and process
                       regulations must also perform their regular duties, such as awarding
                       and administering grants or contracts and evaluating grantee perform-
                       ance. Similarly, the Education offices, such as the Office of General
                       Counsel, review regulatory documents in addition to performing their
                       usual duties, OMB officials noted that its regulatory review staff also has
                       numerous other responsibilities that can contribute to processing delays.


Education Actions to   to publish regulations. In February 1986, a task force was established to
Improve Regulatory     develop procedures to help expedite the rulemaking process and resolve
Process                problems or differences that may arise among Education’s program and
                       staff offices that are providing review comments, In August 1987, Edu-
                       cation’s Division of Regulation Management issued a manual that pro-
                       vides instructions and standard formats for preparing regulations. An
                       internal tracking system was also developed in August 1987 to help
                       monitor the internal development and processing of regulations. We did
                       not evaluate the effectiveness of these actions or whether additional
                       actions could improve the regulatory process.


                       Both Education and OMB provided written comments on a draft of this
Agency Comments        report. Education stated that the draft report, for the most part, accu-
                       rately presented factual information but should have included addi-
           v           tional information which is discussed in its comment letter. (See app.
                       IV.) We made changes to the report as appropriate. However, some of
                       Education’s suggested changes either were beyond the scope of our


                       Page   0                                   GAO/HRD-91-4BR   Education   Regulations
B-289888




work or, in our view, lacked sufficient basis to warrant changing our
report.

OMB  stated that this report identified the contributions of key players in
the regulation process, and that it would continue to work with Educa-
tion to issue regulations expeditiously and responsibly. OMB suggested
changes to how its regulation review responsibilities and the associated
time frames were portrayed. Changes to the report were made, as appro-
priate. (See app. V.)


Copies of this briefing report are being sent to the Secretary of Educa-
tion; the Director, OMB; and other interested parties. Please call me on
(202) 275-1793 if you or your staffs have any questions about this
report. Other major contributors are listed in appendix VI.




Franklin Frazier
Director, Education
  and Employment Issues




Page   7                                  GAO/HR.D-91-4BR   Education   Regulations
Contents


Letter
Appendix I
Regulation Processing:
Delays in Issuing
Education Regulations
Appendix II                                                                                               26
Number of Calendar
Days to Process83
Regulations Within
Education and OMB
Appendix III                                                                                              31
Profiles of Selected     Regional Educational Laboratories and Research and
                              Development Centers Program
                                                                                                          31
Education Regulations    Chapter 1 - Migrant Education Program                                            32
                         National Resource Centers for Foreign Language and Area                          34
                              Studies
                         Early Intervention Programs for Infants and Toddlers                             35
                              With Handicaps
                         State Administered Adult Education and Discretionary                             37
                              Programs

Appendix IV                                                                                               39
Comments From the
Department of
Education
Appendix V                                                                                                46
Comments From the
Office of Management
and Budget ”


                         Page   8                               GAO/HRD-914BR   Education   Regulations
                                                                                                           -
                        Contenti




Appendix VI                                                                                                49
Major Contributors to
This Briefing Report
Tables                  Table 1: Number of Regulations Issued by Days and                                      4
                            Overall Average
                        Table 2: OMB’s Average Number of Days to Review                                        5
                            Regulations
                        Table 3: Percentage Shares of Time Spent Issuing                                       5
                            Regulations
                        Table III. 1: Dates of Key Events in Development of                                31
                            Regulation for Regional Educational Laboratories and
                            Research and Development Centers Program
                        Table 111.2:Dates of Key Events in Development of                                  32
                            Regulation for Chapter 1 - Migrant Education
                            Program
                        Table 111.3:Dates of Key Events in Development of                                  34
                            Regulation for National Resource Centers for Foreign
                            Language and Area Studies
                        Table 111.4:Dates of Key Events in Development of                                  35
                            Regulation for Early Intervention Programs for
                            Infants and Toddlers With Handicaps
                        Table 111.5:Dates of Key Events in Development of                                  37
                            Regulation for State Administered Adult Education
                             and Discretionary Programs

Figures                 Figure 1: General Steps in Education’s Regulation                                      3
                             Development
                        Figure I. 1: Review Objectives                                                     12
                        Figure 1.2: 83 Regulations Under Review                                            13
                        Figure 1.3: Review Methodology                                                     14
                        Figure 1.4: Primary Offices Involved in Regulation                                 15
                             Processing
                        Figure 1.5: Statutory Provision to Issue Regulations                               16
                        Figure 1.6: 70 of 83 Regulations Not Issued Within 240                             17
                             Days
                        Figure 1.7: Average Processing Time for Education and                              18
                             OMB
                        Figure 1.8: 58 Regulations Not Reviewed by OMB Within                              19
                             10 Days



                        Page   9                                GAO/HRD914BR     Education   Regulations
Figure 1.9: ED Cited Major Reasons for Delays in Issuing                         20
     Regulations
Figure I. 10: Substantial Increase in Regulatory Work Load                       21
Figure I. 11: Lengthy Process in Issuing Regulations                             22
Figure I. 12: Complex Legal and Policy Issues to Address                         23
Figure I. 13: Multiple Duties and Responsibilities                               24
Figure I. 14: Department Actions Taken to Expedite                               25
     Rulemaking Process




Abbreviations

DORM      Division of Regulation Management
ED        Department of Education
GAO       General Accounting Office
LJL4      local education agency
NPRM      Notice of Proposed Rulemaking
OMB       Office of Management and Budget


Page 10                                  GAO/m914BR    JMucation   Regulations
Page   11   GAO/HRD914BR   Education   Regulations
  Ppe

Kzation Processing:Delays in Issuing
Education Regulations

Figure 1.1


        GAQ Review Objectives


             GAO was asked to:
             @Determinecauses for delays in
             publishing final regulations
             @Identify Education and OMB
             offices responsible for
             these delays




                     Page   12             GAO/HRD914BR   Rducation   Regulations
                            AppendLx     I
                            Regulation        Froceesing!   Delays   In Issuing
                            Education        Regulations




Figure 1.2


        w            83 Regulations Under Review

         Legislation                                                      Number of Regulations
         @Education of the Handicapped
          Act Amendments
          (P.L. 99-457; P.L. 100-630)                                                  17
        *Hawkins-Stafford School
         Improvement Act Amendments
         (P.L. 100-297)                                                               23
        *Higher Education Act
         Amendments
         (P.L. 99-498; P.L. 100-50)                                                   43
             Total                                                                    83




                            Page 13                                               GAO/HlZD914BB   Education   Regulations
                          Appendix     I
                          Regulation        Processing:   Delays   in 18suing
                          Education        Regulations




Figure 1.3


       GAO Review Methodology

             l   Collected and analyzed
                 data on total days to
                 process regulations
             l   Interviewed Education and
                 OMB officials on
                 (1) processing procedures
                 (2) reasons for delays
             l   Conducted analyses of
                 five regulations delayed for
                 excessive periods of time




                          Page   14                                             GAO/HRD914BR   Education   Regulations
                     Appendix I
                     Regulation    Processinrf;   Delays   ln Issuing
                     Education    Rqplntiom




Fiaure 1.4



       GM    Primary Offices Involved
             in Regulation Processing
             Education
             l Program offices
             *Office of General Counsel
             @Officeof Planning, Budget,
               and Evaluation
             @Officeof Management
             @Officeof Inspector General
             OMB
             @Officeof Information and
              Regulatory Affairs




                      Page   16                                         GAO/HRLb91-4BR   Education   Regulation8
                         Appendix     I
                         Regulation        Processing;   Delays   ln Issulng
                         Education        Regulations




Flaure 1.5


        Gm       Statutory Provision
                 to Issue Regulations
                 Education is required to:
             l   Issue regulations within 240
                 days of enactment
             l   Submit issuance schedule
                 to the Congress w,ithin
                 60 days of enactment
             0Submit revised schedule for
              approval if original schedule
              cannot be met




                          Page   16                                            GAO/HRD-914BR   Education   Regulations
                     Regulation    Procmwing:   Delays   in Issuing
                     Education    Regulations




Figure I.6



        GAO 70 of 83 Regulations Not
            Issued Within 240 Days
                                      km~ad within 240 days




                                     lsaued in over 240 days




                     Page   17                                        GAO/BRD-914BR   Education   Regulations
                       Appendix I
                       Regnlatloll Procesrkyt: DeIays in Lesuing
                       Education   Reguhtiona




Figure 1.7



        G&I Average Processing Time for
            Education and OMB
                                        OMB (averages 41 days)




             b                          Edwatkm (averages 348 days)
                 88%




                       Page   18                                      GAO/H&D-914BR   Education   Regulations
-.
                    Appendix    I
                    R8guhtion Proceselng:Delays in Ieeuing
                    Education       Regulationa




Figure 1.8


       G.A~ 58 Regulations Not Reviewed
            by OMB Within 10 Days

                                      Reviewed within 10 days




                                      Reviewed in over 10 daya




                    Page   19                                    GAO/HRD914BR   Education   Regulations
                       AQpndlw        1
                                                                                                           r
                       Regulation      Promssing:   Delays   in Imuine
                       Education      Regulatbua




Fiaure 1.9


       GAQ ED Cited Major Reasons for
           Delays in Issuing Regulations
             Gubstantial increase in
              regulations to be issued
             @Time-consuming process
             4omplex legal and policy
              issues to address
             *Multiple duties and
              responsibilities in addition to
              issuance of regulations




                        Page     20                                      GAO/HRD-914BR   Education   Regulations
                        Appendix     I
                        Regulation        Processing:   Delays   in Iseuing
                        Education        Regulatioua




Figure 1.10


       GAO Substantial Increase in
           Regulatory Work Load
              Education had to issue more
              regulations (98) as a result of
              new legislation enacted during
              a 1-l/2-year period included
              in our review than it did
              during the prior 6-year period
              (95 regulations).




                       Page   21                                              GAO/IiRD91-4BR   Education   Regulations
                           Regulation    Procosaing!   Delay6   + lseuhg
                           Education    Regulations




Figure 1.11


        w         Lengthy Process
                  in Issuing Regulations

              l   Identifying issues and drafting
                  regulations
              l   Responding to internal
                  comments
              l   Obtaining and responding to
                  external commenti
                  .OMB
                  @Public




                           Page   22                                       GAO/HRD-91-4BR   Education   Regulations
                           Appendix     I
                           Regulation        Processing:   Delay8   in kwing
                           Education        Regulations




Figure 1.12


       G+JQComplex Legal and Policy
           Issues to Address
              l   Complex laws and programs
              l   Sensitive policy issues
              l   Delicate balancing of
                  responsibilities between
                  federal, state, or local
                  governments




                           Page   23                                           GAO/Hl?B914BR   Eaucation   Regulations
                       Appendix     I
                       Regulation        Processing:   Delays   in,Issuhg
                       Education        Regulatious




Figure 1.13


       GAQ Multiple Duties and
           Responsibilities
              Program offices
              @regulation development
              @programevaluation
              @grantmanagement
              Office of General Counsel
              *regulation specification/review
              *litigation
              mother legal issues




                        Page   24                                           GAO/HID914BR   Education   Regulations
                            Appendix     I
                            Regulation        Processing:   Delays   ln Issuing
                            Education        Reguiatioua




Figure 1.14


       w          Department Actions Taken to
                  Expedite Rulemaking Process
              l   Established a task force
              l   Streamlined review process
              l   Developed regulations manual
              l   Initiated internal tracking
                  system




                            Page   25                                             GAO/HRD91-4BR   Education   Regulations
Appendix II

Number of Calendar Days to Process83
Regulations Within Education and OMB

                                                    Days in process within                      Days for
                                           Total                    OMB                           public
              Public law/regulation        days    Education NPRM’        Final                comment
              Education of the
              Handicapped Act
              Amendments of 1988
              (P.L. 99-457)
              Handicapped infants and
              toddlers                      988           822           38        38                       90
              Assistance to states for
              education of handicapped
              children                      932           738           55        48                       91
              Services for deaf/ blind
              children and youth            922           851           20        21                       30
              Preschool arants              828           645           37        56                       90
              Training personnel for the
              education of the
              handicapped training
              information centers           764           670           49         15                      30
              Captioned film loan
              services for the deaf;
              educational media loan
              service for the
              handicapped                   742           659           10         11                      62
              Handicapped special
              studies                       658           532           14        22                       90
              Removal of architectural
              barriers                      512           446            8         IO                      48
              Technology, educational
              media, and materials for
              the handicapped               512           456           16        10                       30
              Regional resource centers     485           434            b        51                        b
              .--                                                                        -
              Research in education of
              the handicapped               400           392            b          8                       b
              ---
              Secondary education and
              transitional services for
              handicapped youth             337           332            b          5                       b
              ---
              Program for severely
              handicapped children          320           237           17        21                       45
              Handicapped Children’s
              Early Education Program
              -~                            307           251           14       12           ___-         30
              Clearinghouses
              --- ..---.---                 280           210           30 --____--IO                      30
              Training personnel for
              education of the
              handicapped grants to
              state educational agencies
              for
              .~ traineeships               273           179           49        15                       30
              Postsecondary educationC      145           136            b         9                        b




              Page   26                                GAO/HRD-91-4BR        Education       Regulations
Appendix      II
Number      of calendar    Days to Procem  88
Regulations      Within   Education  and OMB




                                                     Days in process within                    Days for
                                         Total                      OMB                          public
Public law/regulation                    days       Education NPRM’        Final              comment
Higher Education
Amendments of 1986
(P.L. 99-498)
Guaranteed student loan
                                                d
program
Regional educational
laboratories and research
and development centers                    668             593           15         15            .____45
College library technology
and cooperation grants                     640             563           20         12                    45
Educational Research
Grant Program                              640             558           18         19                  45
Library career training                    587             487           60         10            ---.- 30
National resource centers                  581             534            6         11                  30
Strengthening Research
Library Resources Program                  574             473           21         18            __-     62
Foreign language and area
studies fellowshios                        532             463           28         11                    30
Library Research and
Demonstration Program                      474             402            b        72                      b
                                                                                          ---__
Student assistance general
provisions (subpart 6)                     410             400            b         10                     b

Perkins Loan Program
(subpart C)                                409             400            b          9                     b


State Student Incentive
Grant Program                              406             312           29         19                    46
Minority Science
lmbrovement Proaram                        391             378            b       13                       b
                                                                              _______~
Pell Grant Proaram                         362                            b                                b
                            -..____                        260                   102
Housing and other
educational facilities loan
program
---____         - __-                      301
                                           --              231           27         13                    30
                                                                                                          -~
Strengthening institutions
programs                                   301             244           23          4                    30
Strengthening historically
black colleges and
universities                               301             245           17          9                    30
National diffuse network                   301             237           27          7                    30
Student assistance general
provisions (subpart H)                     299             292            b          7                     b
                                 .____                                                      -__---....-
Veterans Educational
Outreach Program                           298             246           14          8             __-. 30
Office of Educational
Research and Improvement
Fellows Program                            297             219           28        20                  30
Jacob K. Javits Program                    293             245            8        10       -30
                                                                                             (continued)




Page   27                                               GAO/HRD-91-4BR        Education     Regulations
Appendix      II
Number      of Calendar    Days to Procesn 93
Regulations      Within   Education  ind OMB




                                                  Days in process within                 Days for
                                         Total                   OMB                       public
Public law/reaulation                    days    Education NPRM’        Final           comment
Cooperative Education
Program                                    292          230          28         4                   30
Income continaent loans                    292          217           1        42                   32
Undergraduate
International Studies and
Foreign Language Program                   285          275           b        10                    b

International Research and
Studies Program                            285          275           b        10                    b

Educational Opportunity
                                                                      b                              b
Center Proaram                             285          275                    10
Business and International
                                                                      b                              b
Education Proaram                          285          275                    10
Student support services                   280          271           b         9                    b

Talent search                              279          270           b         9                    b

Upward Bound Program                       279          270           b         9                    b

Fund for the improvement
of postsecondary
education innovative
projects for community
services and financial
indeoendence                               277          228           6        13                   30
Christa McAuliffe
Fellowship Program                         270          158          58         9                   45
HEP/CAMP__-~____-                          257          188          11        10                   48
Patricia Roberts Harris
FellowsC                                   236          207           b         8                    b
                                                                                -~-
Law School Clinical
Exberience ProaramC                        181          174           b          7                   b

Endowment Challenge
Grant ProgramC                             173          161           b        12                    b

Congressional Teacher
Scholarship ProaramC                       161          148           b        13                    b

LEADC                                      158          102          11        13                   32
Pell Grant Family
contribution schedule,
                                                                      b                              b
1987-88c                                   105           96                      9
Pell Grant Pro ram cost-of-
                                                                      b                              b
attendance, 18 87-88”                      105           96                      9
Higher Education
Technical Amendments
Act of 1997 (P.L. 100-50)
Strengthening       Institutions
ProgramC                                    72           68           b          4                   b

Strengthening historically
black colleges and
universitiesC                               72           63           b          9                   b


                                                                                      (continued)




Page   28                                            GAO/HRD-914BR        Education   Regulations
Appendix      II
Number      of Calendar    Days to Process 88
Regulations      Within   Education  and OMB




                                                         Days in process within                  Days for
                                         Total                          OMB                        public
Public law/regulation                    days           Education NPRM’        Final            comment
Hawkins-Stafford
Elementary and
Secondary School
Improvement
Aniendments of 1988
IP.L.    100-2971’
1-- . . Pi
Chapter 2. federal, state, --
and local partnership for
educational improvement                           e
                                                              __-.-    --_____.~.
Chapter 1 - state operated
programs for handicapped
children                                          e
                                            ---
Chapter 1 - Migrant
Education Program (SEAS)                   543                 382          61        40                    60
Women’s Educational
Equity Program                             504                 387          32        40                    45
Impact Aid -Section 3                      498                 309          72        27                    90
State administered and
national discretionary
programs for adult
education                                  478                 308          96         13                   61
Mathematics-Science
Education-State
Programs
   . -..._            ___---               470                 292
                                                              ~--           77        39       --~          62
National Program for
Mathematics and Science
Education                                  470                 365          69          6                   30
Chapter 1 - Program for
Neglected and Delinquent
Children        ~~-~. .-_____-.           447                  306          69        12                    60
National Diffusion Network            ____-407                 275          36        36                    60
Migrant Education Even
Start Program~. _____                      393                 306          23          2                   62
Chapter 1 - basic programs
operated by local
education
  - .._~ agencies
                ~~~~~. (LEAS)              387                 252          57         18     ___~---_.. 60-
Indian Education
Fellowship
.._.._~       Program
         _- -.-.~ _-....--~~-             386
                                      ___~_..                  243          56 -__    27                    60
Indian education general
provisions and
discretionary grant
programs                                   379
                                         ___-                  283          13        21                    62
Chapter 1 - Migrant
education coordination
programs for SEAS                          377                 365           b       12                      b
                                                                                 ____.-___.             -
Magnet schools assistance                  373__-____          248          72        8
                                                                             __-____~----               45
                                                                                              (continued)




Page   29                                                   GAO/HRD-914BR        Education    Regulations
Appendix      II                                                                                     Y
Number      of Calendar    Days to Process 83
Regulations      Within   Education  ind OMB




                                                        Days in process within                  Days for
                                         Total                         OMB                        public
Public law/reaulation                    days          Education NPRM’        Final            comment
General Education
Provisions Act-
enforcement-OALJ     and
notice                                     373                 267         27         19                   60
Indian education formula
arant oroarams-(LEAS)                      372                 194         86         30                   62
Fund for the Improvement
& Reform of Schools and
Teaching (FIRST)                           370                 289      --__21        14                   46
Chapter 1-Even Start
Program                                    330                 192         75         10                   53
Bilingual education
technical amendments                       160                 121           b        39                    b

SAFA - Section 2 technical
                                                                             b                              b
amendments                                 159                 119                    40
Vocational education
                                                                             b                              b
programs                                   137                 129                      8
aNotice of proposed rulemaking.
bNot available.

CTechnical amendments

dUnissued as of April 15, 1990. As of this date, 1,286 calendar days had elapsed since legislation
requiring regulations to be issued was enacted.
Wnissued as of April 15, 1990. As of this date, 595 calendar days had elapsed since legislation requiring
regulations to be issued was enacted.




Page   30                                                   GAO/HRD914BB         Education   Regulations
\
    Appendix PI1

I. Profiles of SelectedEducation Regulations                                                                                                     -


                                               Program office-Office                of Educational Research and Improvement
    Regional Educational
    Laboratories and                           Time from enactment              of legislation      to publication    of final regula-
    Research and                               tion-668  days
    Development Centers                        Comments            received   on Notice of Proposed Rulemaking               (NPRM)-3
    Program
                                               Length of published            NPRM-45       pages

                                               Length of published            final regulations-54          pages

    Table 111.1:Dates of Key Events in
    Development of Regulation for Regional     Event                                                                                          Date
    Educational Laboratories and Research      Legislation enacted                                                                      10/17/06
    and Development Centers Program            _I_---             ---
                                               Draft regulation sent from program office to Office of General Counsel’s
                                               Division of Regulatory Management (DORM)
                                               ___-                                                                                      3/l 7107
                                               Circulated for internal ED comments                                                       3/20/07
                                               Internal review process completed                                                         2/l 1I88
                                               NPRM send to OMB fo%%k
                                               ~-~..                          and approval                                               2j24j08
                                               NPRM approved bv OMB
                                                           8   .
                                                                                                                                         3/l 0180
                                                                                                                                          I      ,


                                               NPRM published in Federal Register                                                        3122180
                                               End of public comment period                                                              5/Q6/08
                                               FDi~na;gulation incorporating public comments sent from program office to
                                               ---._...----------                                                                       6/l 5/80
                                               Circulated for internal ED comments                                                      6/l 5100
                                               Internal review process completed                                                        7/l 9100
                                               --~
                                               Prooosed final reaulation sent to OMB for review and aooroval                            7/25/80
                                               Final regulation approved by OMB
                                               .---..                           --                                                      8/09/E@
                                               Final regulation published                                                               0/l 5100


                                               Major           reason for delays-       Education’s May 30, 1990, response to our
                                               office stated that:
                                             . These regulations were among 73 new regulations required by the many
                                               reauthorization statutes enacted in 1986. Although the Department was
                                               successful in markedly improving its productivity in issuing regulations
                                               stemming from those laws, the average time for completion of final reg-
                                               ulations, including this one, increased due to the vastly increased regula-
                                               tory work load. However, these regulations were issued in ample time to
                                               govern awards for fiscal year 1988, the first year that the regulations
                                               were needed.




                                               Page   31                                               GAO/BRD914BR    Education   Regulations
                                            Appendix      III
                                            Profile5    of Sclcctcd   Education     Regulations




                                            Program office -Office                     of Elementary and Secondary Education
Chapter 1 - Migrant
Education Program                           Time from enactment                     of legislation          to publication     of final regula-
                                            tion-543  days

                                            comments             received         on   NPRM-4,829


                                            Length of published                   NPRM-53           pages

                                            Length of published                   final regulations-168               pages

Table 111.2:Dates of Key Events in
Development of Regulation for               Event                                                                                                    Data
Chapter 1 - Migrant Education Program       -_____-___
                                            Leaislation enacted                                                                                  4128188
                                            Draft regulation sent from program office to DORM                                                    6/O l/88
                                            Circulated for internal ED comments                                                                  6/02/88
                                            Internal review orocess comoleted                                                                  i i to2/88
                                            NPRM sent to OMB for review and approval                                                           11IO9188
                                            NPRM approved by OMB                                                                                 l/09/89
                                            NPRM publlshed in Federal Register                                                                   l/26/89
                                            End of oublic comment oeriod                                                                         3127189
                                            Final regulation incorporating public comments sent from program office to
                                            DORM
                                            _---_-.-.------___-______                                                                           7/03/89
                                            Circulated for internal ED comments                                                                 7103189
                                            Internal review process completed                                                                   8/17/89
                                            Proposed final regulation
                                                                ~_      sent to OMB for review and approval                                     9/01/89
                                            Final regulationapproved
                                            ---______                    by OMB                                                                10/11/89
                                                                                                                                            _____--
                                            Final reaulation published                                                                         1O/23/89


                                            Major        reasons for delays-                  Education’s May 30, 1990, response to our
                                            office stated that:

                                        . Publication of the unprecedented volume of regulations required by the
                                          many 1986 reauthorization statutes had not been fully completed when
                                          the Hawkins-Stafford Act was enacted, thereby continuing to compete
                                          for departmental and OMB resources. The 23 regulations, including this
                                          one, required by the 1988 Hawkins-Stafford Act severely taxed an
                                          already overburdened system.
                                        l The Migrant Education Program regulations involved numerous complex
                                          legal and policy issues, and required a careful balancing of interests
                                          among migrant children and their parents, local school districts, and
                                          state educational agencies.



                                            Page   32                                                          GAO/HRD-914BR    Education   Regulations
    Appendix      III
    PxMles      of Selected   Education   Begulatione




l The regulations had to be coordinated and kept consistent with the
  other Chapter 1 program regulations also under development, including
  Chapter ~/LEASregulations, which were required by statue to be pre-
  ceded by regional meetings and negotiated rulemaking before being pub-
  lished in proposed form. With respect to a number of significant policies,
  publication of the Migrant Education Program regulations had to await
  the completion of the Chapter L/LEASregulations, so that consistency
  could be maintained among the various Chapter 1 programs.
. The Department provided 60 days for public comment on the proposed
  rules, 30 days beyond the minimum required by law.
. During the comment period, the Department received nearly 5,000 let-
  ters expressing views on the proposed rules, including letters from Mem-
  bers of Congress, many of which presented difficult issues requiring
  careful examination and considered resolution. Due to the many public
  comments and the issues presented, the final regulations comprised 168
  typed pages.
. The regulations contained certain paperwork requirements, which had
  to be reviewed and approved by OMBunder the Paperwork Reduction
  Act of 1980.




    Page   33                                           GAO/HBD914BR   Education   Regulations
                                           Appendix       III
                                           Profiles     of Selected   Education    Regulations




                                           Program office-Office                     of Postsecondary Education
National Resource
Centers for Foreign                        Time from enactment                     of legislation   to publication        of final regula-
Language and Area                          tion-581            days

                                           Comments              received         on NPRM-10

                                           Length of published                    NPRM-17 pages

                                           Length of published                    final regulations-19        pages

Table 111.3:Dates of Key Event8 In
Development of Regulatlon for National     Event                                                                          -____-           --.- Date
Resource Centers for Foreign Language      Legislation enacted                                                                             I O/I 7186
and Area Studies
                                           Draft regulation sent from .-.-.-  program office to DORM
                                                                                                 ___---       -                              i 120187
                                           Circulated for internal ED comments                                                               i /20/87
                                           Internal review process completed                                                                 a/27/87
                                           NPRM
                                           ____    sent---.--...-_----_-.__~-------
                                              - _____-    to OMB for review and approval                                                     911o/a7
                                           NPRM approved by OMB                                                                              9/i 6ta7
                                           NPRM    published in Federal Register
                                           -____-----                                                         ~--                          i o/02/87
                                           End of public comment period                                                                      I /02fa7
                                           Final regulation incorporating public comments sent from program office to
                                           DORM                                                               --
                                           Circulated for internal ED comments                                                               i /29/aG
                                           Internal review
                                           ___.__-....-------- process
                                                                   -__--.--.completed
                                                                               ---          -__                                              4/22/aa
                                           Proposed final reaulation sent to OMB for review and approval                                     5/06iaa
                                           Final regulation approved by OMB                                                                  5~17/aa
                                           Final reaulation oublished                                                                        512otaa


                                           Major reason for delays-Education’s                           May 30,1990, response to our
                                           office stated that:

                                         9 These regulations were among 73 new regulations required by the many
                                           reauthorization statutes enacted in 1986. Although the Department was
                                           successful in markedly improving its productivity in issuing regulations
                                           stemming from those laws, the average time for completion of final reg-
                                           ulations, including this one, increased due to the vastly increased regula-
                                           tory work load. However, these regulations were issued in ample time to
                                           govern awards for fiscal year 1988, the first year that the regulations
                                           were needed.




                                           Page    34                                                    GAO/HRD-91-4BR     Education   Regulations
                                            Appendir Ill
                                            ProfIlm 0fSoM       EZducationRego.lati0n.a




                                            Program office-Office           of Special Education and Rehabilitative
Early Intervention                          Services
Programs for Infants
and Toddlers With                           Time from enactment
                                            tion-988  days
                                                                          of legislation         to publication      of final regula-

Handicaps
                                            Comments        received   on   ~PR~-2,660


                                            Length of published         NPRM-62          pages

                                            Length of published         final regulations-224              pages

Table 111.4:Dates of Key Events in
Development of Regulation for Early         Event                                                                                          Date
Intervention Programs for Infants and       Legislation enacted                                                                      1O/00/86
Toddlers With Handicaps
                                            Draft
                                            -.-     regulation sent from program office to DORM                                        l/14/07
                                            Circulated
                                            ..-_____       for internal ED comments                                                    l/14/07
                                            Internal
                                            _._---.    review   process completed                                                      9/30/87
                                            NPRM sent to OMB---for review and approval
                                            --                                                                                       1O/06 107
                                            NPRM approved by OMB                                                                     1l/13/87
                                            NPRM published in Federal Register                                                       i1p3fa7
                                            End of public comment period                                                               2/l 6188
                                            Final regulation incorporating public comments sent from program office to
                                            DORM
                                            ____-                                                                                      0/23/08
                                            Circulated for internal ED comments
                                            -___-                                                                                      8/23/W
                                            Internal
                                            -~         review process completed                                                        5/K@
                                            Proposed
                                            --        --- final regulation sent to OMB for review and approval                         5/l 2189
                                            Final regulation approved by OMB                                                           6/l 9109
                                            Final regulation published                                                                 6/22/89


                                            Major       reasons for delays-Education’s              May 30, 1990, response to our
                                            office stated that:

                                        l These regulations were among 73 new regulations required by the many
                                          reauthorization statues enacted in 1986. Although the Department was
                                          successful in markedly improving its productivity in is:;iGng regulations
                                          stemming from those laws, the average time for completion of final reg-
                                          ulations, including this one, increased due to the vastly increased regula-
                                          tory work load.
                                        . The legal and policy issues under the legislation authorizing this pro-
                                          gram were numerous and particularly complex, requiring careful coordi-
                                          nation with other legislation governing the education of handicapped



                                            Page   35                                               GAO/HRD-91-4BR    Education   Regulation
  Appendix      III
  lwfllea     or seleaed   Rducatlon   Eiegulationa




  children and laws governing numerous state and local agencies and pri-
  vate service providers that are involved with young children.
. The Department initially provided more than 60 days for public com-
  ment, exceeding the 30-day minimum required by law. In response to
  requests for additional time, the Department extended the public com-
  ment period by an additional month, bringing the total to 90 days.
. The Department received more than 2,500 letters of public comment on
  the proposed rules. These letters raised many complex and policy-
  sensitive issues and required careful consideration and resolution by the
  Department. Due to the many issues raised in the public comments, the
  final regulations were extensively revised, and the final document was
  224 typed pages in length.
. The regulations contained certain paperwork requirements, which had
  to be reviewed and approved by OMB under the Paperwork Reduction
  Act of 1980.




  Page   36                                           GAO/HRI%914BR   Education   Regulations
                                          Appendix      Itf
                                          ProfilM     of Selected   Education    Rqulation8




                                          Program office-Office                      of Vocational and Adult Education
State Administered
Adult Education and                       Time from enactment                     of legislation      to publication      of final regula-
Discretionary                             tion-477  days
Programs                                  Comments            received          on   NPRM-35


                                          Length of published                   NPRM-1         24 pages

                                          Length of published                   final regulations-149            pages

Table 111.5:Dates of Key Event8 in
Development of Regulation for State       Event                                                                                                  Date
Administered Adult Education and          Legislation enacted
Discretionary Program8                                                                                                                 ..~_.._4/2a/as-..
                                          Draft reaulation sent from proaram office to DORM                                                    7121taa
                                          Circulated for internal ED comments                                                                  7/22/aa
                                          Internal review process completed                                                  -__         ---.-.2/i 6188
                                                                                                                                             i
                                          NPRM sent to OMB for review and approval                                                           i 2123188
                                          NPRM approved by OMB                                                                                 3129189
                                                                                                                                                   ---
                                          NPRM published in Federal Register                                                                   4112189
                                          End of public comment period                                                                         6112189
                                                                                                                                          ----__
                                          Enal regulation incorporating public comments sent from program office to
                                          DORM                                                                                               6121/a9
                                          Circulated for internal ED comments                                                                6122189
                                                                                                                                            __-
                                          Internal review process comoleted                                                                  7105ia9
                                          Proposed final regulation sent to OMB for review and approval                                      7127189
                                          Final regulation approved by OMB                                                                   a/09/89
                                          Final regulation published                                                                         8/l B/89


                                          Major reasons for delays-                        Education’s May 30, 1990, response to our
                                          office stated that:

                                      . The unprecedented volume of regulations required by the six 1986
                                        reauthorizations had not been fully completed when the Hawkins-
                                        Stafford Act was enacted, thereby continuing to compete for depart-
                                        mental and OMB resources. The 23 regulations, including this one,
                                        required by the 1988 Hawkins-Stafford Act severely taxed an already
                                        overburdened system.
                                      l The regulations presented numerous complex issues, requiring a careful
                                        balancing of the interests of adult beneficiaries and state and local gov-
                                        ernment entities, as well as other agencies and organizations eligible to
                                        participate under the various programs affected.



                                          Page   37                                                       GAO/HRDOl-PBR    Education    Regulations
    Appendix      III
    Profiles    of Selected   Education   Regulation




9 The Department provided 60 days for public comment, 30 days more
  than the minimum required by statute.
l The Department received a substantial number of public comments on
  NPRM,raising many significant issues that required careful consideration
  and resolution.




    Page   38                                          GAO/BRD-914BR   Education   Regulations
Appendix IV

Cbnments From the Department of Education



                                      UNITEDSTATESDEPARTMENTOFEDUCATION
                                               OFFICE   OF THE    GENERAL          COUNSEL

                                                                                                           THE   GENERAL   COUNSEL
                                                              SEP 61990

              Mr. Franklin    Frazier
              Director,    Education  and
                     Employment Issues
              United States General Accounting                        office
              Washington,    D.C. 20540
              Dear Mr.     Frazier:
              The Secretary   has received   your letter  of August 9, 1990,
              transmitting   a draft  report  on the promulgation   of certain
              regulations   of the Department of Education.
              In general,    the draft    report  accurately      presents     factual
              information    provided    by the Department to GAO staff,             with a few
              exceptions    noted in the attachment         to this letter.        However, the
              report    does not reflect     some significant      information       provided  by
              the Department that is pertinent           to the congressional          inquiry
              that led to GAO's review.
              The information         relating  to our major                        concerns               is    set   forth        in
              the attachment.           In summary:
                     (1) The draft      report  fails     to acknowledge      the
                    significant      accomplishments        of the Department       in
                    meeting the enormous regulatory              workload    caused by the
                    enactment of a multitude           of reauthorization        statutes     in
                    1986-1988.       Through intrtiduction        of management reforms
                    and emergency measures, the Department                increased     the
                    number of regulatory        documents it published           in fiscal
                    year 1987 by 60 percent           over the prior      year.     Although
                    there was an increase         in the average time needed to
                    publish     a regulation    because of the great number that
                    were required       by the new legislation,          only 16 of the 83
                    regulations      took longer than 18 months to complete,                a
                    remarkable      accomplishment      under the circumstances.
                     (2) The draft    report    omits the information,   provided                                              at
                    the request     of GAO, showing that this Department
                    compares favorably        to other similar   Federal agencies                                              in
                    developing    regulations.
                     (3) The draft    report    fails   to acknowledge    the
                    information    provided     by the Department to GAO showing
                    how departmental      personnel     resources   have declined.
                    This necessarily      affected    the Department's      ability   to
                    meet the massive increase         in regulatory     workload    caused
                    by the 1986-1988 reauthorizations.
                                      4~1, MAhYLANL)    A”t      SW   WA5HINLlUN             UL   1”11)2




                  Page39                                                               GAO/HR.I%914BREducationRegulatioua
     Appendix     IV
     Canmenta       Fkom   the Department
     of Education




       (4) The draft       report     omits the information        provided    by
      the Department showing that the time required                     to issue
      regulations       did not harm the programs,            inconvenience
      the public,       or cause delay in fully           implementing
      congressional        intent.        The Department took a number of
      significant       actions     to avoid these consequences,
      including      setting     priorities     among the regulations,
      issuing     interim     non-regulatory       guidance,     and
      instituting       management reforms to facilitate              the
      production       of priority        documents.
      (5) The draft     report makes no reference       to the
      suggestions    offered     by the Department,    at GAO's
      request,    for improving     the production    of regulations
      for education     programs.      The Congress could take a
      number of useful      actions    in this regard.
I believe    that the draft   report would be significantly
strengthened     and would be of much greater   use to the Department
and to Congress if the above matters were addressed.               Thank you
for this opportunity      to provide the Department's       views.




     Page   40                                           GAO/HRD914BR      Education   Regulations
                            Appendix IV
                            Commenta     From     the Department
                            of Education




                                                                   ATTACHMENT


                 I.    Errors           in the draft         GAO reDort
                        .          The Office   of the General Counsel (OGC) does not have
                                   to "approve"   regulations   before they go to the
                                   Secretary.    Only the Secretary    and OMB must approve
Now on p. 2.                       regulations.     (Report,  p. 3)
                        .          GAO's diagram of the regulations              development    process
                                   contains      two errors:        (1) the Department's    analysis    of
                                   legislation        typically      begins well before enactment,
                                   usually      when both the House and the Senate have passed
                                   bills     covering      similar    programs or subjects;     and (2)
                                   final     regulations        &wavs must be approved by the
                                   Secretary       and OMB (not just "if Needed," as stated in
Now   on p. 3.                     the draft       report).        (Report,  p. 3A)
                 II.    -matters                   rel&ins          to the draft      GAO reuort
                        A.         The Dewartment's                Prior    record   in Dromuluatinq
                                        ations
                        .          Under the prior      Department of Health,      Education,      and
                                   Welfare    (HEW), from 1974 (when the 240-day schedule
                                   requirement     was enacted)      through 1979 (when HEW issued
                                   its last education       regulations),    it took an average of
                                   530 days    from the enactment of an education          statute     to
                                   issuance    of final   regulations.
                        .          From May, 1980, when the Department was created,
                                   through August,    1986, Congress enacted legislation
                                   requiring   the Department to issue 95 regulations.
                                   These regulations    were issued,   on the average,   335 days
                                   following   enactment of the legislation.
                        B.         The mmem            faced       bv the    DeDartment      in 198 6- 19 88
                        .          From September,     1986 through April,        1988, Congress
                                   enacted legislation      requiring      98 regulations,     including
                                   the 83 regulations     reviewed by GAO. This was more than
                                   the number of regulations         required    by all legislation
                                   enacted in the prior       six years of the Department's
                                   existence.
                        .          Prior to 1986, the Department had never issued more
                                   than 66 regulations     in one year (HEW's Education
                                   Division    once issued 71 regulations      in a year (1975)).
                                   As a result     of the 1986 legislation,      the Department's
                                   regulatory    workload  totalled     195 wendins reaulatorv
                                   actwn     S.




                            Page   41                                                     GAO/HRD-91-4BR   Education   Regulations
     AppendixIV
     Comments FromtheDepartment
     ofEducation




.    The primary     reason for the length of time it took to
     issue all of the regulations            under the 1986-1988 laws
     was the extraordinary         number of regulations        required     to
     carry out those statutes.            For example,      in 1986, the
     Office    of Special     Education    and Rehabilitative        Services
      (OSERS) was faced with the necessity            of issuing
     regulations     under both its special         education     programs
      (the regulations      subject     to the GAO investigation)         m
     all of its program authorities            under the Rehabilitation
     Act of 1973, in addition           to its pre-existing
     substantial     regulatory     workload.
.    The effect      of the 1986 avalanche        of regulations      can be
     seen by comparing OSERS' record in implementing                  its
     prior    reauthorization     legislation,      which was enacted in
     December, 1983 (Public         Law 98-199).      Under that law,
     OSERS was required       to issue 12 regulations.            The
     regulations      were published,       on the average,      264 days
     after    enactment of the statute.
.    Under the 1986 reauthorizations,            OSERS was required       to
     promulgate    17 regulations     just for its special
     education   programs,     in addition    to the regulations
     required   for its vocational       rehabilitation      programs.
     The average for OSERS' 17 special             education  regulations
     was 553 days from enactment,          compared to 264 days under
     the 1983 legislation        when the Department was not faced
     with the flood of new laws enacted in 1986-1988.
C.   m    Dewartment's       accomwlishments
.     To meet the enormous regulatory                workload      stemming from
      the 1986-1988 enactments,              the Department        instituted       a
      number of procedural          reforms to streamline             the
      Department's       clearance     procedures,       including         an earlier
      start-up     of regulations        preparation       and a reduction          in
      the number of offices           within     the Department          that review
      draft    regulations.        This resulted       in a 60% increase            in
      the number of regulations              published     in fiscal        year 1987
      over the prior        year, and a continued            higher      rate of
      production       of regulations        in succeeding       years.
.     Although    the average time for promulgating         regulations
      under the 1986-1988 laws increased          over the
      Department's    past record,     due to the greatly      increased
      number of regulations     under development,       all of the
      regulations    were issued without      undue delays,      under the
      circumstances.      Of the 83 regulations       in question,      13
      were issued within     the initial     240-day schedule,       40
      were issued within     12 months, and all but 16 were
      completed within     18 months of enactment.

                                   -2-




     Page42                                                GAO/HRD914BREducationRegulatlone
     Appendix     Iv
     Commenta       From   the Department
     of Education




.      The Department has continued         to devise and institute
       management improvements       to assist      in issuing
       regulations     even more quickly.       For    example, the
       Department was successful        in significantly        reducing                  the
       time taken to issue certain        final     regulations     under                 the
       Hawkins-Stafford      Act through use of an expedited
       clearance    procedure.
.      The Department is also experimenting    with an expanded
       use of automated computer systems to facilitate       the
       clearance  of regulations, as available    technology
       permits.
D.     The DeDar+&lu!znt's record                 comnared   to other     Federal


.      GAO requested       information      on other Federal agencies'
       promulgation       of regulations.          We found that other
       Federal agencies do not typically                keep information
       regarding     the length of time it takes them to issue
       regulations.        To make a comparison,           we surveyed all
       regulations      issued during       fiscal     year 1989 (October 1,
       1988-September        30, 1989) by certain          comparable     Federal
       agencies that administer           financial       assistance     programs.
       The survey did not include             regulations       based on
       scientific      data, in order to consider             only   documents
       similar     to the regulations         of the Department of
       Education.
.      Thirty     such regulations        were issued by those other
       agencies      in fiscal     year 1989, implementing        53. statutory
       provisions.         For implementation      of 22 of the 51
       statutory       provisions,     rulemaking   procedures     were waived
        (i.e.,    no public      comment was solicited      prior   to issuing
       final    regulations).
.      The average time taken by those other agencies                      to issue
       final    regulations        was JJ&Q days from enactment of the
       pertinent      legislation,        including     regulations     for which
       public     comment procedures           were waived.       By comparison,
       the Department of Education                averaged 367 days from
       enactment for regulations               under new legislation         passed
       in the years 1980-1987.               The average for the
       Department's        regulations       under review by GAO is
       approximately         ZBp days from enactment            (with three
       regulations       still     pending as of April,          1990).
E.    me         Deoartment's        wersonnel       resources
.      Since 1981,           the Department's           Salaries  and Expenses
       appropriation             has declined,        in constant   dollars,   from
       $291 million            in fiscal    year      1981 to $230 million     in
                                            -3-




     Page   43                                                   GAO/HRD-91-4BR     Education   Regulations
      Appendix     IV
      Comments       From   the Department
      of Education




                  fiscal    year     1989.

      .        This has resulted       in a corresponding             decline     in the
               number of employees in the Department                   (in FTE usage)
               from 6,883 in 1981 to 4,425 u in 1989.                       During this
               period,     the Department's        responsibilities,           by any
               measure (including        significantly          increased      overall
               appropriations      and numbers of separate               programs),      have
               expanded substantially.             congress has consistently
               appropriated     less for the Department's                Salaries      and
               Expenses account than the amounts requested                      by the
               Administration.
      .        This loss of personnel      resources  has had a particularly
               adverse effect     on the Department's    ability to absorb
               significant    increases  in workload   in a short period,                    as
               happened under the 1986-1988 legislation.
      F.       Effect   of rea wla t' ions on oroarams.     the public.             and
                   lementation    of conaressional     intent
The Department   successfully       took a number of actions      that ensured
that the time taken to issue regulations          under the 1986-1988 laws
did not harm the affected        programs,  inconvenience     affected
parties,  or delay full      implementation    of congressional      intent.
      .        No funds have ever been lapsed by the Department due to
               a failure      to issue regulations.     When priorities   had to
               be set among regulatory         actions, the Department gave
               first    attention    to those necessary    to make awards
               within    the Federal fiscal       year.
      .        For the Stafford        Loan program, the Department gave
               first    priority    to issuing    regulations     on the most
               pressing      problem faced by the Federal program: student
               loan defaults.         Those regulations       have been completed
               and are currently        being implemented.
      .        As an interim       measure, the Department        issued non-
               regulatory    guidance to assist        affected     parties in
               carrying    out congressional      intent.       For example, the
               Department     issued extensive      guidance to assist
               educational      institutions,   lenders,      and guarantee
               agencies    in implementing     changes to the Stafford         Loan
               program made by the Higher Education              Amendments of
               1986.     The implementation     of the 1986 amendments has in
               no way been delayed due to the lack of regulations.

          JJ The latter  figure  is updated.   In the information
initially      provided  to GAO, the estimated     1989 FTE usage was given
as 4,402.       However, the difference     is negligible.
                                             -4-




      Page   44                                              GAO/HRD-914BR      Education   Regulations
.              AppendixIV
               CommentsFromtheDepartment
               ofEducation




           G.       Recommendationam

    For some programs,                   additional       extensive    public   comment periods
    are mandated by statute                      (90 days for all regulations          under Part         B
    of    the       Education        of    the  Handicapped       Act: 90 days     for all
    regulations               for the Impact Aid programs).                These comment periods
    are      required           regardless      of the significance          of the particular
    regulations               being     proposed.
    Under the         1988 Hawkins-Stafford      legislation,       the Department was
    required        to augment public      comment procedures         by conducting       a
    series    of      regional   meetings and then a modified           regulatory
    negotiation          to determine   the content      of the Chapter 1 proposed
    regulations.            Not only did the regional         meetings and regulatory
    negotiation          add to the time to issue the Chapter 1 regulations,
    but those         add-on procedures     took many personnel         and other
    resources         that would have been devoted to the other regulations
    that were         being developed under the Hawkins-Stafford               legislation.
    All of these procedures      are added to, not in lieu of, the normal
    public    comment procedures    under the General Education   Ptovisions
    Act    (GEPA) and the Administrative     Procedure Act, which govern
    rulemaking    by the Department.
    The Department has the following   recommendations      that                         would
    assist in avoiding delays in issuing    future  regulations.
           .            The Congress should simplify           or eliminate   the numerous
                        special     procedures     that apply to the issuance of the
                        Department's      regulations,    including     the mandatory 90-
                        day public      comment periods     that apply to some
                        regulations.
           .            The Department reiterates              its opposition      to regulatory
                        negotiation       procedures      imposed by Congress on the
                        Department's       rulemaking       process.     An evaluation      of the
                        development       of the Chapter 1 regulations             demonstrated
                        that regulatory         negotiation        is not an appropriate
                        technique      for developing        education    regulations.
                        Regulatory       negotiation,       as devised by the
                        Administrative        Conference       of the United Statee,        is
                        useful    where discrete,         conflicting     economic interest5
                        exist,    and litigation         over the final      regulations      is
                        likely.      These criteria         do not apply to the
                        Department's       regulations.




                                                   -5-




               Page45                                                 GAO/BRD-914BREducationRegnlations
Appendix V

CommentsFrom the Office of Management ’
and Budget


                                              EXECUTIVE     OFFICE OF THE PRESIDENT
                                                 OFFICE   OF MANAGEMENT       AND BUDGET
                                                           WASHINGTON,  O.C. 20503




                                                                 SEP I 3 1990
               Mr. Franklin   Frazier
               Director,   Education    and
                 Employment Issues
               Human Resources Division
               U.S. General Accounting      Office
               Washington,   D.C.     20548
               Dear        Mr.     Frazier:
               Thank you for the opportunity     to review and comment on the
               General Accounting  Office    (GAO) report,   'VRegulation    Processing:
               Delays in Issuing  Education    Regulations,"    requested    by
               Congressmen Augustus Hawkins, Pat Williams,         and William    F.
               Goodling.
               The Office      of Management and Budget (OMB) appreciates                   Congress'
               concern over the time period between the enactment of education
               statutes     and the promulgation          of regulations        pursuant    to such
               legislation.        We welcome the publication            of GAO findings,       which
               identify     the relative      contributions       of key players         in the
               regulatory      process.      OMB continues      to work with the Department of
               Education      (ED) to issue regulations           expeditiously       and
               responsibly,       given the dictates        of congressional         statutes,
               administration        policy,   and OMB review standards             as outlined    in
               Executive      Order (E.O.) No. 12291.
               OMB has concerns,        however, over several   portions      of the report     as
               currently     written.     These issues relate   to incomplete        statements
               about OMB responsibilities         for reviewing   regulations      in
               accordance     with E.O. 12291, and to potentially          misleading
               presentations       of the time frame in which OMB acted on rules
               submitted     for review by ED.
               GAO    asserts     that "OMB is to complete its review within                   10 days
Now an p, 5.   for both the proposed and final                regulations"      on page 5 of its
Now on p. 2.   report;      a similar     statement      appears on page 3. As noted in
               Section      3 of E.O. 12291, however, this lo-day period may be
               extended upon request            from the Director         of OMB. Given such
               notice,      agencies must consult          with OMB concerning        a pending
               regulation,         and must "refrain       from publishing"        a proposed rule
               until    OMB completes        its review,      or a final     rule until      the agency
               has incorporated         both OMB views and agency responses                into the
               rulemaking       file.     Under E.O. 12291, agencies and OMB are to
               follow     these procedures         unless they conflict         with deadlines
               imposed by statutes           or judicial      orders.      We believe    that the
               relevant      section5     of the report       should be revised       to explicate
               OMB's authority         correctly.




                            Page   46                                                      GAO/HRD-914BR   Education   Regulations
                       Appendix   V
                       Comments    From   the Offlce   of Management
                       and Budget




                                                                  2
               OMB also notes that in several            places,  the report     presents      review
               times for both OMB and ED in a misleading              context.      Specifically,
Now on p, 5.   the GAO statement       cited above (page 5) could be interpreted                 as
               meaning that OMB's lo-day,          extendable    response time applies           to
               both proposed and final         rules,    taken together.       As GAO mentions
               elsewhere      in the document, the lo-day time          frame applies      twice:
               once for the proposed rule,            and once for the final.        Taken
               together,      OMB has 20 days to respond for both proposed and final
               rules,      and has the authority       to extend this time period.           This
               distinction      should be noted.
               We register     a similar comment in response to the GAO regulatory
Now on p, 3.   flow chart,     presented on page 3a. Step #8, review and revision
               of final    regulations,  is needed in virtually        all cases.     The
               chart should indicate     clearly     that OMB conducts regulatory
               reviews at both stages,      allowing      readers to understand    accurately
               that OMB acts at two different          points   during the rulemaking
               process.
Now on p, 6.   Another case of misleading      presentation      occurs on page 7, and is
Now on p. 22   repeated   in the chart on page 24. GAO repeats the correct
               assertion    by ED officials  that their      responses to OMB comments
               added time to the issuance of regulations.             But by GAO's
               accounting    methods in this report,      the time during which ED
               responded to OMB concerns     is registered       as OMB review time, with
               the exception    of two rules   (in the 83-rule       sample) that OMB
               suspended after     ED had not responded for a period of several
               weeks.
               While we do not disagree           with this accounting      convention,    we
               object to a means         of presentation     where ED's response time first
               appears on OMB's clock,           but where OMB is then cited as a
               contributing      factor    to the long time frame accounted           for on ED's
               clock.      The two statements        are contradictory.      Assuming that GAO
               does not reVise       its   accounting    procedure,     OMB should not be cited
               as a cause of longer          response time by ED.
Now on p, 6.   Finally,      GAO notes on page 8 that ED program offices                  must    develop
               regulations       while also performing       many other duties.            OMB
               appreciates       this,   and notes that OMB staff          also have numerous
               responsibilities        aside from regulatory         review.      During     the 1987-
               1989 period        in which GAO collected      its data, OMB staff
               responsible        for reviewing    ED rules also examined nearly twice as
               many submissions        of government     requests      for information         from the
               Department of Education          and related     agencies;      the Paperwork
               Reduction       Act of 1980 requires      OMB to review public            sector
               demands for information          from private     citizens.
               In conclusion,    OMB welcomes     the release  of this            GAO report  on the
               development    of education    regulations.    We again            thank GAO for the




                       Page   47                                           GAO/HRD-914BR     Education   Regulations
       Appendix   V
       Comments    From   the Offlce   qf Management
       and Budget




                                                  3

opportunity     to comment, and repeat the assurance                          that OMB and ED
will   continue   efforts  to issue rules expeditiously                          and
responsibly.
                                                        Sincerely,
                                                           i       .v 04 /AZ           /z/j,I
                                                       b ames B. MacRae, Jr.
                                                        Acting Administrator         and
                                                           Deputy Administrator
                                                        Office   of Information        and
                                                           Regulatory    Affairs
cc:   Mr. Bill   Milletary
      GAO Investigator




                                                               .




       Page   48                                                     GAO/HRD-914BR   Education   Regulations
Appendix VI

Major ~Contributmsto This Briefing Report


                   Fred E. Yohey, Jr., Assistant Director, (202) 401-8623
Human Resources    William C. Milletary, Assignment Manager
Division,          Darlene M. Bell, Evaluator-in-Charge
Washington, D.C.   Andrea Rozner, Evaluator




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