Regulatory Burdens

The Department of Education is required, by section 437 of the General Education Provisions Act, to take public comment on priorities for grant competitions before funding announcements can be published. This can add up to 6 months to the time necessary to make grants, and can push our grant-making under into the final half to third of each fiscal year. The provision makes sense in Education for programs that deliver funding to State and local educational agencies where broad areas of the public may have an immediate stake in the funding program and be motivated to comment. However, our funding announcements are technical documents directed to scientists. The period for public comment required under rulemaking has historically generated very little in the way of comment. Letting us use the same exemption that the NSF and the NIH use would have no downside that I have identified, and would allow us to be much quicker on our feet in getting funding out the door.

Another regulatory burden is the possible application of the Federal Advisory Committee Act (FACA). Our Office of General Counsel has informally advised that OERI may be subject to FACA for the purposes of peer review if a panel that has fixed membership, meets regularly and advises me or the Secretary. Such a panel would have to be chartered as a federal advisory committee. Because applications for funding for scientific projects often include proprietary and privileged information and because FACA requires open committee meetings, we do not want to charter our peer review panels as federal advisory committees. As a result, historically OERI has not had standing peer review committees. Further, when peer review panels meet just once they cannot provide a summary judgment on the quality of applications. Standing review panels are an important tool in the competitive funding process in a science agency. It is critical that we be exempted from FACA for peer review committees.