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Department Is Tardyin Issuing Regulations, Auditor Finds

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Julie A. Miller

Washington--The Education Department seldom completes the process of issuing regulations within the required period of time, a new General Accounting Office report suggests.

Of 83 department regulations studied by the gao, only 13 were issued within the eight-month limit established by law.

The rules took an average of 389 days to negotiate the regulatory labyrinth, including public-comment periods and review by the Office of Management and Budget, investigators found. Of the 13 regulations that were issued within the statutory 240 days, moreover, all but one were "technical amendments" that "essentially incorporate statutory text into pre-existing regulations," the report maintains. Department officials responded to the findings by pointing out that the agency had a heavy workload during the period studied.

From September 1986 through April 1988, the Congress enacted legislation requiring 98 regulations, General Counsel Edward C. Stringer said in a letter included in the report. That was more than the number required in the prior six years of the department's existence, he noted.

The letter also contended that a survey of all regulations issued by "comparable" agencies in fiscal 1989 found that it took other agencies an average of 1,140 days to complete a regulation.

The report examined regulations required by several major pieces of legislation: the Education of the Handicapped Amendments of 1986 and 1988, the Higher Education amendments of 1986 and 1987, and the Hawkins-Stafford Elementary and Secondary School Improvement Act of 1988.

At the time research was completed, in April 1990, three necessary regulations had not been issued. Rules for the Chapter 2 block grant and the Chapter 1 compensatory-education program for handicapped children have since been completed. But the department never published Guaranteed Student Loan regulaLtions implementing changes in the 1986 Higher Education Amendments.

Mr. Stringer claimed specifically that implementation of the h.e.a. "has in no way been delayed due to the lack of regulations." More gener ally, he added, the department has ensured that delays "did not harm the affected programs, inconvenience affected parties, or delay full implementation of Congressional intent."

The agency has done this, he said, by promulgating high-priority rules first and by issuing "nonregulatory guidance" to educators.

Mr. Stringer also pointed out that as the department's workload increased, its workforce decreased, from almost 7,000 in 1981 to about 4,400 in 1989.

While Mr. Stringer implied that the decrease was due to falling Con gressional appropriations, he did not mention that the Reagan Ad ministration had come into office vowing to abolish the department and reduce staffing levels intention ally through attrition and reL assignment.

The department also argued that statutory restrictions on some regu lations, such as lengthy required comment periods and negotiated rulemaking--which was mandated for Chapter 1 by the Hawkins-StafH ford Act--contributed significantly to the delays.

Both the Reagan and Bush admin istrations have strongly opposed sub jecting education rules to negotiation, in which representatives of various groups with a stake in a program agree on as many points as possible.

Of the regulations studied by the g.a.o., those governing special-education programs generally experL ienced the longest delays, averaging 553 days under review. Three e.h.a. rules--for the main state grant pro gram, a program for handicapped infants and toddlers created in 1986, and the program for deaf/blind stu dents--took more than 900 days to issue. Three smaller e.h.a. programs operated more than 600 days without regulations.

Rules for the department's research centers and laboratories also took a relatively long time--668 days--to promulgate.

While the g.a.o. found that the Education Department used an average of 89 percent of the time needed for review of regulations, the Office of Management and Budget also frequently missed its deadlines for review.

The o.m.b. is allotted 10 days for proposed regulations and another 10 days for final rules, but held up the education regulations under study for an average of 41 days, meeting the deadline for only 22 rules. The longest o.m.b. review listed involved the 1988 revisions to Indi an-education grant programs, Lwhich were under review there for 116 days, or 31 percent of the total regulatory-review time.

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