GAO-22-105047, Accessible Version, COVID-19: Agencies Increased Use of Some Regulatory Flexibilities and Are Taking Steps to Assess Them

Issuer: Government Accountability Office
Document type: Report
Date: 2022-06-23

Summary

GAO-22-105047, a U.S. Government Accountability Office report to congressional committees dated June 23, 2022, titled COVID-19: Agencies Increased Use of Some Regulatory Flexibilities and Are Taking Steps to Assess Them. The report states that 23 of 24 major agencies GAO surveyed in October 2021 reported implementing regulatory flexibilities in response to COVID-19. It describes interviews with officials at DOE, DHS, DOT, EPA and SBA, who reported designing flexibilities based on internal expertise from prior events. It reports that 15 of the 24 agencies had completed an assessment of at least one flexibility and that 10 had used such an assessment to inform decisions. Appendices cover scope and methodology, related GAO reports as of April 2022, and comments from the U.S. Agency for International Development, the Nuclear Regulatory Commission and the Social Security Administration.

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United States Government Accountability Office

Report to Congressional Committees

June 2022

COVID19
Agencies Increased
Use of Some
Regulatory
Flexibilities and Are
Taking Steps to
Assess Them
Accessible Version

GAO-22-105047

GAO Highlight

June 2022

COVID-19

Highlights of GAO-22-105047, a report to
congressional committees

Agencies Increased Use of Some Regulatory
Flexibilities and Are Taking Steps to Assess Them

Why GAO Did This Study

What GAO Found

Federal regulations can generate
substantial benefits to society, but
benefits can diminish if regulations are
not adapted to meet emerging public
needs. Federal agencies have
implemented regulatory flexibilities to
address the COVID-19 pandemic’s
substantial effect. Regulatory
flexibilities are actions taken, at least in
part, to temporarily reduce regulatory
burdens or constraints imposed on
regulated entities.

Twenty-three of 24 major agencies GAO surveyed reported implementing
regulatory flexibilities in response to COVID-19. Regulatory flexibilities can
include actions that modify regulatory standards, as well as activities that modify
their applicability (e.g., through waivers or exemptions) or enforcement. A
majority of agencies reported increased use of multiple types of flexibilities in
response to COVID-19 compared to before the pandemic (see figure).
Agencies’ Change in Use of Regulatory Flexibilities in Response to the COVID-19
Pandemic

The CARES Act includes a provision
for GAO to report on its COVID-19
pandemic oversight efforts. GAO was
also asked to look at regulatory
flexibilities available to agencies in
responding to COVID-19. For this
report, GAO examines (1) agencies’
implementation of regulatory
flexibilities in response to the
pandemic; (2) the plans, policies, and
other tools selected agencies used to
identify and design regulatory
flexibilities; and (3) efforts these
selected agencies took to assess the
impacts of regulatory flexibilities.
To do so, in October 2021, GAO
surveyed 24 major federal agencies—
those identified in the Chief Financial
Officers Act of 1990, as amended—
regarding their use of COVID-19
regulatory flexibilities. GAO also
interviewed officials at five agencies in
part because those agencies reported
using more types of flexibilities in
response to COVID-19 compared to
before the pandemic. GAO interviewed
officials about how they identified,
designed, and assessed their
flexibilities. GAO also reviewed GAO’s
work related to major agencies’
COVID-19 flexibilities, and summarized
examples of these flexibilities, as
appropriate.
View GAO-22-105047. For more information,
contact Yvonne D. Jones at (202) 512-6806 or
JonesY@gao.gov.

Accessible Data Table for Highlight Figure
Other

Delayed
Changes to Modifications Waivers or
effective or enforcement of
exemptions
compliance
regulations
dates

Not at all

Less often

About the same

Somewhat more
often

Much more often

Officials from each of the five agencies GAO interviewed—the Departments of
Energy, Homeland Security, and Transportation, as well as the Environmental
Protection Agency and the Small Business Administration—reported designing
and implementing flexibilities based on internal expertise developed from prior
events. For example, officials reported that their experiences managing Ebola,
constrained funding situations, and natural disasters—such as Hurricanes Sandy
and Maria—helped them develop responses to COVID-19. Officials from these
United States Government Accountability Office

agencies stated that they generally did not rely on specific plans, policies, or
other tools given the unique challenges posed by COVID-19.
Fifteen of the 24 agencies GAO surveyed reported having already completed an
assessment of at least one regulatory flexibility to understand successes or
challenges with using them. Ten agencies reported having used at least one
such assessment to inform their decision-making, such as whether to modify an
existing flexibility or use a new flexibility. Officials from several of the selected
agencies reported that their agencies had not conducted assessments of at least
one of the flexibilities discussed with GAO. Among reasons why assessments
were not conducted, officials said that some flexibilities were intended to be
temporary, and that their focus remained on responding to and recovering from
the ongoing pandemic.

Contents
GAO Highlight

ii
Why GAO Did This Study
What GAO Found

ii
ii
1

Background
Nearly All Agencies Reported Implementing Different Types of
Regulatory Flexibilities
Selected Agencies Reported Identifying and Designing Flexibilities
Internally and in Consultation with External Stakeholders
Some Agencies Have Taken Steps or Plan to Assess
Effectiveness of Regulatory Flexibilities
Agency Comments
Appendix I: Objectives, Scope, and Methodology

Appendix II: Our Reports Related to COVID-19 Flexibilities as of April 2022

Appendix III: Comments from the U.S. Agency for International Development

Text of Appendix III: Comments from the U.S. Agency for
International Development
Appendix IV: Comments from the Nuclear Regulatory Commission

40
41

Text of Appendix IV: Comments from the Nuclear Regulatory
Commission
Appendix V: Comments from the Social Security Administration

42
43

Text of Appendix V: Comments from the Social Security
Administration
Appendix VI: GAO Contacts and Staff Acknowledgments

44
45

Letter

18
27
30

Tables
Table 1: Enclosures on COVID-19 Flexibilities from Our Recurring
CARES Act Reports as of April 2022
Table 2: Our Selected Ongoing and Completed Work on COVID19 Flexibilities as of April 2022

Page i

36
38

GAO-22-105047 Covid-19

Figures
Figure 1: Agencies’ Use of Different Regulatory Flexibility Types in
Response to the COVID-19 Pandemic Compared to Use
before the Pandemic
Figure 2: Agencies’ Use of Different Regulatory Flexibility
Implementation Methods in Response to the COVID-19
Pandemic Compared to Use before the Pandemic
Figure 3: Agencies’ Highest-Reported Progress in Assessing
Regulatory Flexibilities in Response to the COVID-19
Pandemic

Page ii

GAO-22-105047 Covid-19

Abbreviations
APA
Administrative Procedure Act
CFO Act
Chief Financial Officers Act of 1990
CMS
Centers for Medicare & Medicaid Services
DHS
Department of Homeland Security
DOD
Department of Defense
DOE
Department of Energy
DOJ
Department of Justice
DOT
Department of Transportation
EPA
Environmental Protection Agency
EUA
emergency use authorization
FAA
Federal Aviation Administration
FDA
Food and Drug Administration
FEMA
Federal Emergency Management Agency
FNS
Food and Nutrition Service
HHS
Department of Health and Human Services
HUD
Department of Housing and Urban Development
NASA
National Aeronautics and Space Administration
OCA
Office of Capital Access
OMB
Office of Management and Budget
PHMSA
Pipeline and Hazardous Materials Safety Administration
PPE
personal protective equipment
SBA
Small Business Administration
USCIS
U.S. Citizenship and Immigration Services
USDA
U.S. Department of Agriculture

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Page iii

GAO-22-105047 Covid-19

441 G St. N.W.
Washington, DC 20548

Letter

June 23, 2022
Congressional Committees
While federal regulations can generate substantial benefits to society,
benefits can diminish if regulations are not adapted to meet emerging
public needs. To address the COVID-19 pandemic’s substantial effect on
the nation’s economy and public health, federal agencies have
undertaken unprecedented efforts to implement regulatory flexibilities
through both the federal rulemaking process and other methods to
temporarily reduce requirements.1
When rulemaking—the process for formulating, amending, or repealing a
regulation—agencies must generally follow certain procedures.2 These
procedures, such as providing notice and soliciting comments from the
public, are a means to ensure that the public has an opportunity to
provide information to agencies on the potential effects of a rule or to
suggest alternatives for agencies to consider.3
However, these procedures also take time. In light of the COVID-19
emergency, some agencies have used other implementation methods
with fewer procedural requirements, such as issuing interim final rules or

1Regulations are legally binding and typically require a desired action or prohibit certain

actions by regulated entities. The Code of Federal Regulations annual edition is the
codification of the general and permanent rules published in the Federal Register by
agencies of the federal government. We use the terms regulations and rules
interchangeably in this report.
2The Administrative Procedure Act (APA) describes two types of rulemaking: formal and

informal. Most federal agencies use the informal rulemaking process, which is also
referred to as notice-and-comment rulemaking. We are referring to the informal
rulemaking process in this report when we discuss notice-and-comment rulemaking.
3The APA established broadly applicable requirements for informal rulemaking, also

known as notice-and-comment rulemaking. 5 U.S.C. § 553. Among other things, agencies
are generally required to provide the public with notice in the Federal Register of a
proposed rulemaking and give the public an opportunity to submit comments on the
proposed rule. After considering the public comments received, the agency may then
publish the final regulation.

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GAO-22-105047 Regulatory Flexibilities

Letter

guidance, to address emerging needs.4 Understanding more about
agencies’ experiences identifying, designing, and assessing regulatory
flexibilities could help them continue responding to the ongoing pandemic
and better prepare for future emergencies.
The CARES Act includes a provision for us to report on our ongoing
monitoring and oversight efforts related to the COVID-19 pandemic.5 This
report is a part of that body of work.6 We were also asked to look at
federal regulatory flexibilities that were available to allow agencies to
effectively and efficiently respond to COVID-19. In this report, we
describe (1) to what extent selected agencies implemented regulatory
flexibilities in response to the COVID-19 pandemic; (2) what plans,
policies, and other tools selected agencies used to identify and design
regulatory flexibilities; and (3) what efforts selected agencies have taken
to assess the impacts of regulatory flexibilities and identify lessons
learned.
For the purposes of this report, we define regulatory flexibilities as actions
agencies take, at least in part, to temporarily reduce regulatory burdens
or constraints imposed on those affected by the regulations.7 Regulatory
flexibilities can include actions that modify regulatory standards
themselves, as well as activities that modify their applicability (e.g.,
through waivers or exemptions) or enforcement (e.g., by giving inspection
staff flexibility on how to address noncompliance). Regulatory flexibilities
may be based on a range of legal authorities, from existing regulatory or

4The APA permits agencies to issue final rules without publishing a notice of proposed

rulemaking in certain cases, including when the agency determines for “good cause” that
notice-and-comment procedures are “impracticable, unnecessary, or contrary to the public
interest.” 5 U.S.C. § 553(b)(B). Legislation may also permit an agency to issue regulations
without first going through notice-and-comment procedures. One type of rule issued
without a notice of proposed rulemaking is the interim final rule. These rules are generally
effective immediately but can provide an opportunity for public comment after the rule’s
issuance.
5Pub. L. No. 116-136, § 19010, 134 Stat. 281, 579-81 (2020).
6We have regularly issued government-wide reports on the federal response to the

COVID-19 pandemic. For the latest report, see GAO, COVID-19: Current and Future
Federal Preparedness Requires Fixes to Improve Health Data and Address Improper
Payments, GAO-22-105397 (Washington, D.C.: Apr. 27, 2022). Our other governmentwide reports are available at https://www.gao.gov/coronavirus.
7Regulatory burden refers to the costs associated with government regulations and their

implementation.

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GAO-22-105047 Regulatory Flexibilities

Letter

statutory authorities to COVID-19-related statutory (and executive order)
authorities or requirements.8
To describe to what extent regulatory flexibilities have been implemented
in response to the COVID-19 pandemic, we administered a survey to 24
major federal agencies.9 We emailed questionnaires to agencies in
October 2021 and requested that they coordinate internally across their
components to provide one comprehensive agency response.10 We
received responses from all 24 major agencies.11
To describe the plans, policies, and other tools selected agencies used to
identify, design, and assess flexibilities, we interviewed officials at five
selected agencies: the Departments of Energy (DOE), Homeland Security
(DHS), and Transportation (DOT) as well as the Environmental Protection
Agency (EPA) and the Small Business Administration (SBA). We selected
these agencies based in part on their survey responses, which reported
increased use of different flexibility types and implementation methods in
response to COVID-19, as well as variations in agency efforts to assess
implemented flexibilities. Additionally, for all three objectives, we reviewed
and summarized findings from our issued work related to flexibilities,
including regulatory flexibilities, the major agencies have implemented in
8We exclude from coverage the use of grants management flexibilities authorized by the

Office of Management and Budget (OMB) for agencies in 2020 and 2021. See appendix I
for more information on the OMB memorandums that identify and authorize these
flexibilities. For information on how OMB and agencies developed and implemented
COVID-19-related grant flexibilities, see GAO, Grants Management: OMB Should Collect
and Share Lessons Learned from Use of COVID-19 Related Grant Flexibilities,
GAO-21-318 (Washington, D.C.: Mar. 31, 2021).
9The 24 agencies are those identified in the Chief Financial Officers (CFO) Act of 1990, as

amended. 31 U.S.C. § 901(b). The 24 CFO Act agencies are the Departments of
Agriculture, Commerce, Defense, Education, Energy, Health and Human Services,
Homeland Security, Housing and Urban Development, Interior, Justice, Labor, State,
Transportation, Treasury, and Veterans Affairs; National Aeronautics and Space
Administration; Environmental Protection Agency; U.S. Agency for International
Development; General Services Administration; National Science Foundation; Nuclear
Regulatory Commission; Office of Personnel Management; Small Business
Administration; and Social Security Administration.
10Agencies were given discretion with how they coordinated internally across their own

components and provided one comprehensive response for their agency. For example, an
agency may have reported the “average” response across all of its components, or the
“highest” response reported by an individual component.
11Agencies’ survey responses and other information provided to us may have included

actions that are not “regulatory flexibilities” as defined by our methodology. For the
purposes of this report, we use agencies’ classifications of these actions.

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GAO-22-105047 Regulatory Flexibilities

Letter

response to the pandemic. See appendix I for a more detailed description
of our scope and methodology and appendix II for a list of our other work
related to COVID-19 flexibilities.
We conducted this performance audit from March 2021 to June 2022 in
accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.

Background
Opportunities to Implement Regulatory Flexibilities in
Response to COVID19
Agencies typically have discretion when promulgating regulations to
implement laws and achieve national goals. In response to the COVID-19
pandemic, Congress provided additional authority to various agencies to
implement regulatory flexibilities. In addition, the pandemic has further
provided agencies with the opportunity to implement flexibilities only
authorized in certain emergency situations.
·

Flexibilities authorized by COVID-19 congressional action.
Congress passed and the president signed into law six COVID-19
relief laws to address the public health and economic threats posed
by COVID-19.12 As of March 2022, the six relief laws had provided a
total of about $4.6 trillion toward such efforts. Agencies’ efforts to
implement the relief laws have included distributing funding and
implementing new programs. In addition to providing funding and
authorizing new programs under the COVID-19 relief laws, Congress
provided various agencies with authority to temporarily reduce

12For the purposes of our review, we consider COVID-19 relief laws to include the six laws

providing comprehensive relief across federal agencies and programs. These six laws are
the American Rescue Plan Act of 2021, Pub. L. No. 117-2, 135 Stat. 4; Consolidated
Appropriations Act, 2021, Pub. L. No. 116-260, 134 Stat. 1182 (2020); Paycheck
Protection Program and Health Care Enhancement Act, Pub. L. No. 116-139, 134 Stat.
620 (2020); CARES Act, Pub. L. No. 116-136, 134 Stat. 281 (2020); Families First
Coronavirus Response Act, Pub. L. No. 116-127, 134 Stat. 178 (2020); and the
Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020, Pub. L.
No. 116-123, 134 Stat. 146.

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Letter

regulatory burdens or constraints on regulated entities. Affected
programs and activities include those related to nutrition assistance,
certain tax benefits, including credits and deductions, and business
loans, among others.
·

Flexibilities authorized by emergency declarations and
authorities. On January 31, 2020, the Secretary of Health and
Human Services (HHS) declared a public health emergency in
response to COVID-19 under section 319 of the Public Health Service
Act.13 Subsequently on March 13, 2020, the President declared a
national emergency under the National Emergencies Act and a
nationwide emergency under section 501(b) of the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (Stafford Act).14 These
acts authorize specified executive branch officials to determine that an
emergency exists and, as a consequence of that determination,
various statutory authorities only available under such circumstances
may be used.15 For example, when both a public health emergency
and either a disaster or emergency have been declared under the
National Emergencies Act or Stafford Act, section 1135 of the Social
Security Act authorizes the Secretary of HHS to temporarily waive or
modify certain federal health care requirements, including in the
Medicare Program, to increase access to medical services.16

As agency policymakers have leveraged existing and new authorities to
respond to COVID-19, they have also received and may solicit input and
direction from different sources to guide them in their decision-making.
·

Input from the regulated community, the public, and other
interested parties. As agencies assess the pandemic’s far-reaching
effects and options for mitigating them, they may use established
processes, such as notice-and-comment rulemaking, as well as
informal mechanisms, such as stakeholder meetings, to obtain input
from the regulated community, the public, and other interested parties.

1342 U.S.C. § 247d.
14See 50 U.S.C. § 1601 et seq. and 42 U.S.C. § 5121 et seq.
15The Congressional Research Service has developed a list of statutory authorities

triggered when an emergency is declared under each authority. See Congressional
Research Service, Emergency Authorities Under the National Emergencies Act, Stafford
Act, and Public Health Service Act, R46379 (Washington, D.C.: July 14, 2020).
16See 42 U.S.C. § 1320b-5.

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Presidential direction. Both the current and prior administrations
have taken steps to guide agencies’ efforts to respond to COVID-19.
The Biden administration issued a National Strategy for the COVID-19
Response and Pandemic Preparedness identifying strategic goals
and key actions for agencies related to ensuring access to personal
protective equipment and treatment, expanding emergency relief, and
advancing equity.17 Consistent with these goals, the President has
also issued numerous executive orders, including one directing
agencies to use all available legal authorities, including the Defense
Production Act, to fill shortfalls in the provision of pandemic response
supplies.18 The Trump administration also issued an executive order
directing agencies to, among other things, aid the economic
emergency by rescinding, modifying, waiving, or providing exemptions
from regulations and other requirements that may inhibit economic
recovery.19

Agency response plans. Agencies developed emergency
preparedness plans and policies prior to and during COVID-19 to help
respond to and recover from COVID-19 and other public health
emergencies.

Types of Regulatory Flexibilities and Methods for
Implementation
Under their own discretion and the authorities described above, among
others, agencies may use several types of regulatory flexibilities in
response to the pandemic, including:
·

Waivers or exemptions. Agencies may waive or provide exemptions
from certain requirements that may be prudent during
nonemergencies if, for example, an emergency makes it impossible or
impracticable to comply with those requirements.

17White House, National Strategy for the COVID-19 Response and Pandemic

Preparedness (Jan. 21, 2021).
18Exec. Order No. 14001, A Sustainable Public Health Supply Chain, 86 Fed. Reg. 7219

(Jan. 26, 2021).
19Exec. Order No. 13924, Regulatory Relief to Support the Economic Recovery, 85 Fed.

Reg. 31353 (May 19, 2020). This executive order was subsequently revoked by President
Biden on February 24, 2021. See, Exec. Order No. 14018, Revocation of Certain
Presidential Actions, 86 Fed. Reg. 11855.

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GAO-22-105047 Regulatory Flexibilities

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Modifications of regulations. Agencies may modify existing
regulations for a variety of reasons related to COVID-19, including to
reduce burdens on the public.

Changes to enforcement. Agencies may modify their enforcement
practices to include more flexibility to help respond to and recover
from COVID-19.

Delayed effective or compliance dates. Agencies may delay certain
dates, such as the date a regulation goes into effect or the date
regulated entities have to comply with certain regulatory requirements.

Agencies may use several methods to implement flexibilities, including:
·

Notice-and-comment rulemaking. Agencies may use notice-andcomment rulemaking procedures to create new regulatory
requirements, and to modify or repeal existing rules.

Interim final rules. Agencies may issue different types of rules that
vary from the notice- and-comment rulemaking process, including
interim final rules, which go into effect without a prior notice if the
agency finds that it has good cause to do so.

Guidance. Agencies may issue guidance documents to explain how
they plan to interpret regulations, to address circumstances they could
not have anticipated when issuing regulations, or, when necessary, to
make additional clarifications. Guidance documents differ from
regulations in that they are not legally binding.

Approval or grant of regulatory relief. Agencies may use their
existing discretion to offer relief from, or nonenforcement of,
regulatory requirements such as through the use of waivers or
exemptions outside of the rulemaking process.

Nearly All Agencies Reported Implementing
Different Types of Regulatory Flexibilities
Twenty-three of the 24 agencies we surveyed reported implementing
regulatory flexibilities in response to the COVID-19 pandemic.20 Among
20The National Aeronautics and Space Administration (NASA) responded to our survey

that it had not implemented any regulatory flexibilities. NASA reported that it is not a
regulatory agency. Thus, it did not issue any regulations in response to the COVID-19
pandemic that would have affected the general public. According to agency officials,
NASA’s COVID-19 response efforts were focused on protecting its workforce and
maintaining continuity of operations while working in both an on-site and remote capacity.

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these 23 agencies, a majority reported using multiple types of flexibilities
somewhat or much more often compared to their use of these flexibilities
before the pandemic. For example, 20 agencies reported using more
waivers or exemptions while 21 agencies reported using more
modifications of regulations than before the pandemic (see fig. 1). In
addition, 15 agencies reported using more changes to enforcement and
17 reported delaying effective or compliance dates somewhat or much
more often than before the pandemic.
Figure 1: Agencies’ Use of Different Regulatory Flexibility Types in Response to the COVID-19 Pandemic Compared to Use
before the Pandemic

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Accessible Data Table for Figure 1
Other

Delayed
Changes to Modifications Waivers or
effective or enforcement of
exemptions
compliance
regulations
dates

Not at all

Less often

About the same

Somewhat more
often

Much more often

Throughout this report, we provide examples of flexibilities agencies
implemented. Generally, these flexibilities targeted the following four
major categories of assistance or relief: (1) public health, (2) individuals,
(3) the economy, and (4) states and tribes. For example, the U.S.
Department of Agriculture’s Food and Nutrition Service granted waiver
flexibilities that provided assistance to individuals, as described in the text
box below.21
Food and Nutrition Service (FNS) School Meal Provision Waivers

The U.S. Department of Agriculture’s FNS granted various nationwide waivers in response
to pandemic-related school closures that began in spring 2020 to facilitate meal provision
while limiting potential COVID-19 exposure. For example, these waivers allowed meals to
be served in noncongregate settings, enabled parent and guardian meal pickup, and
provided flexibility in foods served and meal times. In addition to granting the various
waiver flexibilities, in spring 2020, FNS began allowing schools and other meal providers
to operate under summer meal programs. FNS waived the requirement that summer meal
sites providing free meals to all children be located in areas where at least half of the
children are from low-income households. This waiver expanded the population of children

21GAO, COVID-19: Additional Actions Needed to Improve Accountability and Program

Effectiveness of Federal Response, GAO-22-105051 (Washington, D.C.: Oct. 27, 2021);
and GAO, COVID-19: Continued Attention Needed to Enhance Federal Preparedness,
Response, Service Delivery, and Program Integrity, GAO-21-551 (Washington, D.C.: Jul.
19, 2021).

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eligible for free meals, which eased the administrative burden of tracking and collecting
payment for school meals while maintaining social distancing guidelines.
Source: GAO-21-551 and GAO-22-105051. | GAO-22-105047

Some agencies implemented “other” types of flexibilities in response to
the pandemic that they considered to be distinct from the types of
flexibilities mentioned above.22 For example:
·

The Department of Housing and Urban Development (HUD) reported
that it issued several notices waiving and providing alternatives to
statutory and regulatory requirements to enable it to continue to
provide affordable and safe housing during the pandemic. HUD
categorized these under the “other” category in our survey. One such
notice waived the requirement to obtain and verify social security
number documentation before admitting applicants to certain housing
programs. As an alternative requirement, individuals admitted under
the waiver were given an additional 90 days to provide required
documentation to be eligible for continued assistance.

The Department of Education reported that its Office of Federal
Student Aid offered numerous flexibilities to accommodate students
and help them continue their educations despite interruptions caused
by the pandemic. For example, Education provided broad approval to
postsecondary institutions to use distance learning-methods without
going through the standard approval process.

A greater number of agencies reported increased implementation of
regulatory flexibilities through guidance, approvals or grants of regulatory
relief, interim final rules, or other methods than through the notice-andcomment rulemaking process (see fig. 2).

22While the examples of “other” types of flexibilities agencies reported to us may fit under

different categories of flexibilities provided in our survey response options (e.g., waivers or
exemptions), for the purposes of this report, we refer to the agency’s reported
classification of their own flexibilities.

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Figure 2: Agencies’ Use of Different Regulatory Flexibility Implementation Methods in Response to the COVID-19 Pandemic
Compared to Use before the Pandemic

Accessible Data Table for Figure 2
Other

Notice-and- Interim final Approval
Guidance
comment
rulemaking or grant of
rulemaking
regulatory
relief

Not at all

Less often

About the same

Somewhat more often

Much more often

Twenty-two of the 24 agencies reported implementing flexibilities through
the issuance of guidance at least somewhat or much more often, with
only one agency reporting that it did so about the same as before the
pandemic. Guidance documents provide agencies flexibility to articulate
their interpretations of regulations, clarify policies, and address new
issues more quickly than may be possible using notice-and-comment
rulemaking. Agencies can issue and revoke guidance more quickly, using
fewer agency resources and with less public involvement as compared to
the rulemaking process for formulating, amending, or repealing

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regulations. However, as noted above, guidance is not legally binding
whereas regulations are legally binding. The text box below provides an
example of DOT using guidance to address the shortage of hand sanitizer
early in the pandemic.

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Pipeline and Hazardous Materials Safety Administration (PHMSA)
Enforcement Guidance

Federal Aviation Administration (FAA) Regulatory Relief Actions

The Department of Transportation’s FAA reported taking quick action to help the aviation
industry adjust operations in response to the pandemic. These actions included providing
temporary relief from some regulatory requirements, including training, testing,
qualification, and medical certification requirements pertaining to pilots, mechanics, and
dispatchers. The relief allowed the continued use of pilots and other crewmembers in
support of essential operations, and also made it easier for operators to move aircraft from
one storage facility to another.
Source: GAO analysis of April 2020 DOT temporary relief notice and interview with DOT officials. | GAO-22-105047

Twenty agencies also reported implementing approvals or grants of
regulatory relief in response to the pandemic, with all but one reporting
having done so more frequently compared to before the pandemic. For
example, the DOT’s Federal Aviation Administration provided airlines and
other aviation sectors temporary relief from some regulatory requirements
(see text box below).23
Source: GAO-22-104429. | GAO-22-105047

Nine agencies reported that they implemented flexibilities using interim
final rules at least somewhat more often in response to the pandemic
than before, compared to six agencies that reported increased

23GAO, COVID-19 Pandemic: Observations on the Ongoing Recovery of the Aviation

Industry, GAO-22-104429 (Washington, D.C.: Oct. 21, 2021).

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implementation of flexibilities through notice-and-comment rules.24 As
noted earlier, an interim final rule becomes effective without a notice of
proposed rulemaking, but the public generally may provide comments
after the rule’s issuance. DOT officials we interviewed said that the longer
time required to promulgate notice-and-comment rules may not have
afforded agencies sufficient time to use this method to respond effectively
to the pandemic.
Finally, 11 agencies reported implementing flexibilities through “other”
methods, such as through the issuance of policy bulletins and FAQs,
which they considered to be distinct from guidance and the previous
implementation methods discussed above. In addition, the Social Security
Administration and DHS reported implementing flexibilities through
temporary final rules. According to DHS officials we spoke with,
temporary final rules, like interim final rules, go into effect without a prior
notice but are usually of a short duration and have a specified termination
date.

Selected Agencies Reported Identifying and
Designing Flexibilities Internally and in
Consultation with External Stakeholders
Internal Expertise
Officials from each of the five selected agencies (DOE, DHS, DOT, EPA,
and SBA) described how internal expertise from lessons learned from
prior disasters, public-health emergencies, and other events helped
inform their decision-making when designing and implementing
flexibilities in response to the pandemic. According to officials at the
selected agencies, agency staff often identified certain pandemic-related
issues and then used their expertise to develop solutions. For example:
·

Officials from DOT stated that they used lessons learned from
addressing Ebola cases in the U.S. as a guide to assist inexperienced
private sector entities with managing issues around a novel illness

24We previously reported on agencies’ use of interim final rules prior to the pandemic. In

2012, we reported that between 2003 through 2010, agencies published about 4 (plus or
minus 2) percent of nonmajor rules and 15 percent (actual) of all major rules as interim
rules. GAO, Federal Rulemaking: Agencies Could Take Additional Steps to Respond to
Public Comments, GAO-13-21 (Washington, D.C.: Dec. 20, 2012).

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spreading in the U.S. The onset of the pandemic saw widespread
shortages in products that can help mitigate the spread of COVID-19,
such as hand sanitizer. DOT’s experience with responding to Ebola
helped officials implement a flexibility for the transportation of hand
sanitizer from new manufacturers with little experience in meeting
DOT hazardous materials shipping requirements.
·

DOE officials said that their experience in preparing for and managing
multiple government shutdowns and the resulting loss of funding
assisted them in their ability to continue operations with fewer staff
onsite during the pandemic. DOE implemented numerous flexibilities
that temporarily suspended enforcement actions for violations of not
meeting certain safety and security requirements, such as testing and
training, which would have been difficult to meet due to COVID-19.

EPA officials from the Office of Superfund Remediation and
Technology Innovation stated that they used past experience
regarding funding and staffing constraints to help guide their
community involvement efforts. Officials used a previously developed
long-distance engagement guide to pivot to relying on virtual
technology to conduct their community involvement efforts during the
pandemic.

DHS’s Federal Emergency Management Agency (FEMA) officials said
that they used their experience from prior disasters such as Hurricane
Maria to implement a flexibility that simplified the application for
FEMA’s Public Assistance Program.25 According to officials, while the
idea of simplifying the entire application process was new, it was
designed based on a pilot used in prior disasters. The simplified
process allowed applicants to avoid previously required in-person
consultations with FEMA and significantly decreased the amount of
time it took applicants to receive aid.

SBA’s Office of Disaster Assistance officials stated that they had
experience from addressing small business needs after Hurricane
Sandy. SBA expanded the use of a flexibility previously used after
Hurricane Sandy regarding the waiving of some credit score

25While the agency took this action to reduce burdens or constraints on those affected by

COVID-19, it did not modify any existing regulatory standards, applicability, or
enforcement. Thus, it does not fully meet our definition of a regulatory flexibility.

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requirements to speed up pandemic-related loan application
reviews.26

External Stakeholders
Officials from four of the selected agencies stated that in several
instances external stakeholders identified or provided feedback on
pandemic-related issues that were addressed through the use of
flexibilities. For example, DOT officials stated that a letter from a
professional organization to the President identified an issue with how
restaurant closures due to the pandemic were affecting the trucking
industry and the ability of drivers to obtain meals. DOT subsequently
exercised its enforcement discretion to notify state-level Departments of
Transportation that DOT would not take action if a state allowed limited
commercial activity (i.e., food trucks) at Interstate Highway rest areas,
thereby increasing the availability of meals to drivers.
In addition, EPA officials from the Office of Land and Emergency
Management stated that they heard from hazardous waste handlers who
expressed concerns about their ability to practice social distancing during
interactions with customers. EPA subsequently exercised its enforcement
discretion and temporarily allowed handlers and customers—generators
of hazardous waste—flexibility with respect to providing a required
handwritten signature on a paper hazardous waste manifest.

TradeOffs Considered and Plans Used in Designing
Flexibilities
Officials from selected agencies also told us they attempted to balance
trade-offs and risk when designing flexibilities. For example, officials from
DHS’ U.S. Citizenship and Immigration Services (USCIS) stated that the
agency temporarily revised a requirement that non-English-speaking
asylum applicants must provide their own interpreters, and instead
required USCIS to conduct asylum interviews with government-provided
telephonic interpreters. According to officials, while this flexibility helped
workers and asylum applicants maintain social distancing and safety,
officials identified trade-offs to not having an in-person interpreter,

26While the agency took this action to reduce burdens or constraints on those affected by

COVID-19, it did not modify any existing regulatory standards, applicability, or
enforcement. Thus, it does not fully meet our definition of a regulatory flexibility.

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including a reduction in officers’ abilities to observe interactions between
the interpreter and applicant.
Officials from the five selected agencies we spoke with generally stated
that they did not rely on any specific plans, policies, or other tools to
identify and design flexibilities. The unique nature of the pandemic had
many unanticipated effects that, while in some cases similar to prior
disasters, required agencies to take unprecedented actions as the
pandemic progressed.
While our five selected agencies generally did not describe using specific
plans, other federal agencies, including the Food and Drug Administration
(FDA) and the Centers for Medicare & Medicaid Services (CMS),
developed COVID-19-specific plans and policies, which include the use of
flexibilities. For example, CMS’ Pandemic Plan details the use of waivers
and other flexibilities to enable more health care providers and
beneficiaries to supply and access care. As described in the text box
below, this plan includes the use of Medicare telehealth waivers.27
Centers for Medicare & Medicaid Services (CMS) Medicare
Telehealth Waivers

Over the course of the pandemic, the Department of Health and Human Services’ (HHS)
CMS issued a number of waivers to expand access to telehealth services. Telehealth
services allow the provision of certain types of medical care remotely, helping to reduce
the spread of COVID-19. These waivers allow for more providers to offer telehealth
services on a wider range of medical issues and receive reimbursement from Medicare.
According to HHS officials, Medicaid telehealth policies did not require the use of waivers
and are not dependent on Medicare telehealth.
Source: GAO-21-191. | GAO-22-105047

27GAO, COVID-19: Urgent Actions Needed to Better Ensure an Effective Federal

Response, GAO-21-191 (Washington, D.C.: Nov. 30, 2020). Medicaid, a federal-state
program that finances health care for certain low-income and medically needy individuals,
also expanded its use of telehealth. See GAO, Medicaid: CMS Should Assess Effect of
Increased Telehealth Use on Beneficiaries’ Quality of Care GAO-22-104700 (Washington,
D.C.: Mar. 31, 2022).

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Some Agencies Have Taken Steps or Plan to
Assess Effectiveness of Regulatory Flexibilities
A majority of major agencies (15 of 24) reported that they had completed
an assessment of at least one regulatory flexibility implemented in
response to COVID-19.28 Of these agencies, 10 reported that they had
used the results of at least one completed assessment to inform their
decision-making, as shown in figure 3 below.29 The remaining five
reported that they had completed at least one assessment but had yet to
use the results to inform agency decisions.

28The survey was administered to the 24 major agencies in October 2021. For the

purposes of this report, we consider assessments to be the gathering of quantitative or
qualitative evidence to understand successes or challenges around the use of regulatory
flexibilities.
29We asked agencies to consider whether they had used an assessment to inform agency

decisions to (1) modify or discontinue flexibilities already used, (2) decide whether and
how to use new regulatory flexibilities, or (3) seek statutory reform.

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Figure 3: Agencies’ Highest-Reported Progress in Assessing Regulatory
Flexibilities in Response to the COVID-19 Pandemic

Accessible Data Table for Figure 3
No plans to
asses

Plans to
assess

Currently
assessing

Completed
assessment

Completed and
used
assessment

Notes: We consider an assessment of the agency’s use of regulatory flexibilities to include the
gathering of quantitative or qualitative evidence to understand successes or challenges. Agencies
may use an assessment to inform their decisions to (1) modify or discontinue flexibilities already
used, (2) decide whether and how to use new regulatory flexibilities, or (3) seek statutory reform. We
asked the agencies to identify all assessment efforts, if any, of regulatory flexibilities they had
implemented in response to COVID-19, which could include planned, in progress, completed, and
used assessments. For the purposes of this figure, we report the highest assessment progress
reported by each agency from the survey administered to agencies in October 2021.
The National Aeronautics and Space Administration (NASA) is the only major agency not included in
the figure because the agency noted that NASA is not a regulatory agency. Thus, it did not issue any
regulation changes related to COVID-19 that would have affected the general public.

Additionally, five of the 24 agencies reported that they were currently
assessing at least one flexibility but had not yet completed an
assessment. Only two major agencies that reported implementing
flexibilities—the Department of the Interior and the U.S. Agency for

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International Development—reported that they either have not conducted
or do not have plans to conduct assessments of any of their implemented
flexibilities.30
Our published work has identified opportunities for some major agencies,
such as the Departments of Labor and Health and Human Services, to
improve oversight and tracking of flexibilities implemented in response to
COVID-19 (see text boxes below).31

30Aside from our five selected agencies, we did not follow-up with the other agencies we

surveyed regarding their responses. As such, we did not speak to either agency about
why they do not have plans to conduct an assessment of their implemented flexibilities.
31GAO, COVID-19: Critical Vaccine Distribution, Supply Chain, Program Integrity, and

Other Challenges Required Focused Federal Attention, GAO-21-265 (Washington, D.C.:
Jan. 28, 2021); and, COVID-19: Federal Efforts Accelerate Vaccine and Therapeutic
Development, but More Transparency Needed on Emergency Use Authorizations,
GAO-21-207 (Washington, D.C.: Nov. 17, 2020).

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Occupational Safety and Health Administration (OSHA) Enforcement
Methods Adapted

To help protect the Department of Labor’s OSHA employees from the virus and address
resource constraints, OSHA temporarily granted area offices increased discretion to
conduct enforcement via remote inspections and informal inquiries in place of on-site
inspections. Area offices also were given flexibility to determine whether to issue citations
when they identify certain workplace violations. For example, area offices had the
discretion to consider employers’ good faith efforts when determining whether to issue
citations if they observed violations of certain personal protective equipment (PPE) or
recordkeeping requirements. This discretion took into account potential PPE shortages
and challenges in determining whether a COVID-19 case was work related.
In December 2021, OSHA officials told us that the agency plans to conduct an overall
assessment of its efforts during the pandemic once the pandemic no longer affects
OSHA's enforcement activities, and that this assessment will include an analysis of the
agency's use of remote inspections and informal inquiries.
Source: GAO-21-265. | GAO-22-105047

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Food and Drug Administration (FDA) Guidance on Emergency Use
Authorization for COVID-19 Vaccines

The Department of Health and Human Services’ FDA may temporarily allow the use of
unlicensed or unapproved vaccines and therapeutics through emergency use
authorizations (EUA), provided there is evidence that the products may be effective and
that known and potential benefits outweigh known and potential risks. FDA issued
guidance in October 2020 to provide vaccine sponsors with recommendations regarding
the manufacturing, safety, and effectiveness data and information needed to support
issuance of an EUA for a COVID-19 vaccine. In November 2020, we recommended that
FDA identify ways to uniformly disclose to the public the information from its scientific
review of safety and effectiveness data when issuing EUAs for therapeutics and vaccines.
In response to our recommendation, FDA developed a process to disclose its scientific
review documents for therapeutic EUAs. FDA also released summaries disclosing
information used to support three therapeutic EUAs and decision memorandums
containing detailed information
Source: GAO-21-207. | GAO-22-105047

EPA officials told us they completed a formal assessment of at least one
of the implemented flexibilities we discussed with them.32 According to
EPA officials, they assessed the effectiveness of a flexibility related to the
use of virtual technology for community meetings and found that the use
of the virtual technology led to greater attendance from the public and
reduced agency costs. However, EPA officials also identified that some
individuals may have limited or no access to the internet or other
technologies for community meetings and thus should take steps as
practicable to provide access through other means.
DHS, DOE, DOT, and SBA all reported in their survey responses that
they had either completed an assessment of at least one regulatory
flexibility, or completed and used an assessment in their decision-making.
However, officials from each of these agencies told us that they had yet to
conduct an assessment for at least one of the flexibilities selected for
32We asked each selected agency to choose a sample of four flexibilities to discuss with

us. As a result, the flexibility examples each agency shared with us are illustrative in
nature and may not reflect the status of the overall assessment activities reported by
agencies in their survey responses.

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discussion with us. According to several agency officials, they had not
conducted assessments of some flexibilities, including those they
discussed with us, because their focus generally remained on responding
to and recovering from the pandemic, rather than conducting
assessments.
Rather than conducting formal assessments, officials from some of the
selected agencies generally stated that after the implementation of a
flexibility, they obtained feedback and monitored its effectiveness as the
pandemic progressed. For example, officials from DOT’s U.S. Maritime
Administration reported finalizing an interim rule that provided flexibility for
standardized testing requirements for admission to its Merchant Marine
Academy after reviewing the outcome of this flexibility.33 Officials from
DHS’ FEMA also stated that they have taken preliminary steps to
evaluate the effectiveness of a flexibility that streamlined disaster aid by
allowing applicants to apply directly for assistance in place of assigning a
program delivery manager to collect an applicant’s information in person,
and found that the flexibility significantly reduced overall processing
times.34
Where appropriate, agencies may be able to use an assessment of
selected regulatory flexibilities implemented in response to COVID-19 to
determine the benefits they provided or how those flexibilities contributed
to specific goals and whether those flexibilities should be modified, made
permanent, or both.35 Congress and administrations have imposed
analytical requirements on the regulatory process, including periodic
retrospective reviews, because of regulations’ potentially substantial costs

33The final rule was issued on April 22, 2021. See Admission and Training of Midshipman

at the United States Merchant Marine Academy; Amendment Providing an Emergency
Waiver for Scholastic Requirements, 86 Fed. Reg. 21213 (2021), codified at 46 C.F.R. §
310.55(d).
34While the agency took this action to reduce burdens or constraints on those affected by

COVID-19, it did not modify any existing regulatory standards, applicability, or
enforcement. Thus, it does not fully meet our definition of a regulatory flexibility.
35We have previously reported on the scope, effectiveness, and results of agencies’

retrospective regulatory analyses. See GAO, Reexamining Regulations: Agencies Often
Made Regulatory Changes, but Could Strengthen Linkages to Performance Goals,
GAO-14-268 (Washington, D.C.; Apr. 11, 2014).

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and benefits.36 Even though a regulatory flexibility may not be subject to
these requirements, agencies may review and assess regulatory
flexibilities at their own discretion or in response to feedback from
regulated parties, agency staff, or other groups.
Officials from four of the selected agencies reported a variety of other
reasons why they did not have plans to fully assess some flexibilities.
According to officials, several flexibilities dealt with specific issues arising
from the pandemic and were intended to be temporary. In some cases,
officials said that since there are no plans to keep the flexibility in place in
the future, they do not have plans to conduct assessments at this time.
For example, officials from the SBA’s Office of Capital Access (OCA)
implemented a flexibility allowing small business owners who were
delinquent or in default on student loans—initially deemed ineligible —to
obtain loans made under the Paycheck Protection Program.37 According
to SBA officials, this flexibility was meant to be temporary and, as a result,
OCA does not intend to assess it. SBA’s authority to make loans under
this program ended on June 30, 2021.38
Additionally, officials from USCIS stated that they do not plan to conduct
any assessments of a flexibility that temporarily allowed noncitizen
workers—those who come temporarily to the U.S. to perform agricultural
work of a temporary or seasonal nature (classified as H-2A
nonimmigrants)—to change employers while USCIS processed petitions

36For example, the Regulatory Flexibility Act requires agencies to periodically review

certain existing regulations which have (or will have) a significant economic impact upon a
substantial number of small entities. 5 U.S.C. § 610. Section 5 of Executive Order 12866,
Regulatory Planning and Review, requires agencies to establish a program for the
periodic review of existing significant regulations to determine whether any should be
modified or eliminated. 58 Fed. Reg. 51735 (Sept. 30, 1993).
37See Small Business Administration: Business Loan Program Temporary Changes;

Paycheck Protection Program—Revision to Loan Amount Calculation and Eligibility, 86
Fed. Reg. 13149 (Mar. 8, 2021). SBA’s earlier rule provided that business owners who
were delinquent or had defaulted on a loan from SBA (or any other federal agency) were
ineligible for a Paycheck Protection Program loan.
3815 U.S.C. § 636(a)(36)(A)(iii).

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requesting an extension of stay.39 According to USCIS officials,
agricultural employers informed them that the flexibility was extremely
helpful in allowing workers to begin employment at a faster pace, in
particular early in the pandemic when the agricultural sector and food
supply chain experienced significant disruptions. However, as delays in
visa processing were minimized, USCIS determined that the flexibility
was not as critical and would not be extended.
In addition to the five selected agencies we spoke with, we have
previously reported on regulatory flexibility assessment activity at other
agencies. Some agencies reported they have ongoing assessments and
other agencies only intend to conduct assessments once the pandemic
has ended. For example, we found that the Department of Labor’s
Occupational Safety and Health Administration plans to conduct a
comprehensive lookback on its enforcement practices and flexibilities
during the pandemic once the pandemic has ended.40 Other agencies,
such as HUD, initiated efforts prior to the end of the pandemic to assess
the use of then still ongoing flexibilities such as those that were
implemented as part of the Housing Choice Voucher program.41 In
addition, while CMS’ Pandemic Plan indicates that the agency should
monitor temporary changes during an emergency and evaluate their
effect after the emergency is over, we found that CMS conducted only

39See Department of Homeland Security: Temporary Changes to Requirements Affecting

H-2A Nonimmigrants Due to the COVID-19 National Emergency, 85 Fed. Reg. 21739
(Apr. 20, 2020). Permanent rules permit a worker to begin working for certain H-2A
employers (i.e., in good standing under E-Verify) upon receipt of the employer’s petition
with USCIS requesting the worker’s stay in the U.S. be extended. The authorized period of
work may not exceed 120 days from receipt of the petition. 8 C.F.R. § 274a.12(b)(21). The
temporary rule permitted this for any H-2A employer, but the employment authorization
was limited to 45 days. In both cases, before an employer may file an extension of stay
petition with USCIS, they must obtain a valid temporary labor certification from the U.S.
Department of Labor. This flexibility was extended twice and ultimately covered petitions
for an extension of stay received no later than June 16, 2021. See Department of
Homeland Security: Temporary Changes to Requirements Affecting H-2A Nonimmigrants
Due to the COVID-19 National Emergency: Extension of Certain Flexibilities, 85 Fed. Reg.
82291 (Dec. 18, 2020).
40GAO-22-105051.
41GAO, COVID-19: Additional Risk Assessment Actions Could Improve HUD Oversight of

CARES Act Funds, GAO-21-104542 (Washington, D.C.: Sept. 30, 2021).

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limited oversight of the effects of the temporary changes (see text box
below).42
Centers for Medicare & Medicaid (CMS) Temporary Changes to States’
Medicaid Programs

The Department of Health and Human Services’ CMS approved a number of temporary
changes to states’ Medicaid home- and community-based services programs, where
providers help beneficiaries with daily activities, such as bathing, dressing, and eating.
However, in September 2021, we reported that CMS focused on supporting states’
implementation of temporary program changes and conducted limited oversight of the
effects of those changes. We recommended that CMS (1) develop procedures to monitor
temporary changes during public health emergencies, and (2) evaluate these temporary
changes after the COVID-19 emergency and address opportunities for improvement. CMS
agreed with these recommendations, but as of December 2021 has not completed actions
on them.
Source: GAO-21-104401. | GAO-105047

Conducting assessments and identifying lessons learned can help
agencies respond to future emergencies, as we and others have
previously reported. Further, agencies can use retrospective analysis to
examine how existing regulations have contributed to specific policy
goals, to assess the effectiveness of their implementation, or to
reexamine their estimated benefits and costs based on actual
performance and experience.43 Effective monitoring and evaluations of
key agency programs or projects can help agencies identify and correct
deficiencies and improve results.44 However, conducting assessments too
early may provide agencies with incomplete information. According to
OMB staff, since the pandemic is ongoing, it has yet to work with
42GAO, Medicaid Home- and Community-Based Services: Evaluating COVID-19

Response Could Help CMS Prepare for Future Emergencies, GAO-21-104401
(Washington, D.C.: Sept. 8, 2021).
43GAO-14-268.
44GAO, Standards for Internal Control in the Federal Government, GAO-14-704G

(Washington, D.C.: Sept. 10, 2014). OMB has also published guidance on the need to
conduct assessments on the effectiveness and efficiency of programs, policies, and
organizations. See OMB, Evidence-Based Policymaking: Learning Agendas and Annual
Evaluation Plans, M-21-27 (Washington, D.C.: June 30, 2021).

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agencies in a systematic manner to perform a retrospective analysis of
whether regulatory flexibilities agencies implemented in response to the
pandemic achieved their intended goals.

Agency Comments
We provided a draft of this report to the 24 major federal agencies and
the Office of Management and Budget for review and comment. We
received written comments from the U.S. Agency for International
Development, the Nuclear Regulatory Commission, and the Social
Security Administration that are reprinted in appendixes III, IV, and V. The
Department of Health and Human Services, Environmental Protection
Agency, and Office of Management and Budget provided technical
comments, which we incorporated as appropriate. The remaining 19
agencies informed us that they had no comments.
We are sending copies of this report to the appropriate congressional
committees, the heads of each of the 24 major agencies, and the Director
of the Office of Management and Budget. In addition, the report will be
available at no charge on our website at http://www.gao.gov.
If you or your staff have any questions concerning this report, please
contact me at (202) 512-6806 or JonesY@gao.gov. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. GAO staff who made major contributions to
this report are listed in the appendix VI.

Yvonne D. Jones
Director, Strategic Issues

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List of Committees
The Honorable Patrick Leahy
Chairman
The Honorable Richard Shelby
Vice Chairman
Committee on Appropriations
United States Senate
The Honorable Ron Wyden
Chairman
The Honorable Mike Crapo
Ranking Member
Committee on Finance
United States Senate
The Honorable Patty Murray
Chair
The Honorable Richard Burr
Ranking Member
Committee on Health, Education, Labor, and Pensions
United States Senate
The Honorable Gary C. Peters
Chairman
The Honorable Rob Portman
Ranking Member
Committee on Homeland Security and Governmental Affairs
United States Senate
The Honorable Kyrsten Sinema
Chair
The Honorable James Lankford
Ranking Member
Subcommittee on Government Operations and Border Management
Committee on Homeland Security and Governmental Affairs
United States Senate
List of Committees Continued
The Honorable Rosa L. DeLauro
Chair
The Honorable Kay Granger

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Ranking Member
Committee on Appropriations
House of Representatives
The Honorable Frank Pallone, Jr.
Chairman
The Honorable Cathy McMorris Rodgers
Republican Leader
Committee on Energy and Commerce
House of Representatives
The Honorable Bennie G. Thompson
Chairman
The Honorable John Katko
Ranking Member
Committee on Homeland Security
House of Representatives
The Honorable Carolyn B. Maloney
Chairwoman
The Honorable James Comer
Ranking Member
Committee on Oversight and Reform
House of Representatives
The Honorable Richard E. Neal
Chairman
The Honorable Kevin Brady
Republican Leader
Committee on Ways and Means
House of Representatives

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Appendix I: Objectives, Scope, and
Methodology

Appendix I: Objectives, Scope,
and Methodology
Our objectives were to describe (1) to what extent selected agencies
implemented regulatory flexibilities in response to the COVID-19
pandemic; (2) what plans, policies, and other tools selected agencies
used to identify and design regulatory flexibilities; and (3) what efforts
selected agencies took to assess the impacts of regulatory flexibilities and
identify lessons learned.
For the purposes of this report, we defined “regulatory flexibilities” as
actions agencies take, at least in part, to temporarily reduce regulatory
burdens or constraints imposed on those affected by the regulations.
Regulatory flexibilities can include actions that modify regulatory
standards themselves, as well as activities that modify their applicability
(e.g., through waivers or exemptions) or enforcement (e.g., by giving
inspection staff flexibility on how to address noncompliance). Regulatory
flexibilities may be based on a range of legal authorities, from existing
regulatory or statutory authorities to COVID-19-related statutory (and
executive order) authorities or requirements. We excluded from our
coverage the use of grants management flexibilities authorized by the
Office of Management and Budget (OMB).1 We previously reported on the
federal government’s efforts to support its grantees during the pandemic,

1Beginning in March 2020, OMB issued guidance that identified temporary exceptions to

grants management requirements federal agencies could make available to their
grantees, as the agencies deemed appropriate and to the extent permitted by law. OMB
issued this guidance in a series of four memorandums. See OMB, Administrative Relief for
Recipients and Applicants of Federal Financial Assistance Directly Impacted by the Novel
Coronavirus (COVID-19), M-20-11 (Washington, D.C.: Mar. 9, 2020); Administrative Relief
for Recipients and Applicants of Federal Financial Assistance Directly Impacted by the
Novel Coronavirus (COVID-19) Due to Loss of Operations, M-20-17 (Washington, D.C.:
Mar. 19, 2020); Repurposing Existing Federal Financial Assistance Programs and Awards
to Support the Emergency Response to the Novel Coronavirus (COVID-19), M-20-20
(Washington, D.C.: Apr. 9, 2020); and Extension of Administrative Relief for Recipients
and Applicants of Federal Financial Assistance Directly Impacted by the Novel
Coronavirus (COVID-19) due to Loss of Operations, M-20-26 (Washington, D.C.: June 18,
2020).

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Appendix I: Objectives, Scope, and
Methodology

including how OMB and selected agencies developed and implemented
grant flexibilities.2
To describe the extent to which agencies implemented regulatory
flexibilities in response to the COVID-19 pandemic, we administered a
survey to 24 major agencies to collect high-level information related to
flexibilities they implemented in their respective pandemic responses.3 To
inform our survey, we reviewed findings from our prior and ongoing work
on specific flexibilities, including regulatory flexibilities, agencies have
implemented in response to the COVID-19 pandemic. We also
interviewed knowledgeable officials at four agencies. Through this work,
we identified four types of flexibilities agencies used:
·

modifications of regulations;

delayed effective and compliance dates for regulations;

waivers or exemptions; and

changes to enforcement.

We also identified four methods agencies used to implement their
flexibilities:
·

notice-and-comment rulemaking;

interim final rulemaking;

guidance; and

approval or grant of regulatory relief.

2GAO, Grants Management: OMB Should Collect and Share Lessons Learned From Use

of COVID-19 Related Grant Flexibilities, GAO-21-318 (Washington, D.C.: Mar. 31, 2021).
OMB issued additional guidance beyond the scope of our March 2021 report, which we
also excluded from our coverage. See OMB, Promoting Public Trust in the Federal
Government through Effective Implementation of the American Rescue Plan Act and
Stewardship of the Taxpayer Resources, M-21-20 (Washington, D.C.: Mar. 19, 2021).
3The 24 major agencies are those identified in the Chief Financial Officers (CFO) Act of

1990, as amended. 31 U.S.C. § 901(b). The 24 CFO Act agencies are the Departments of
Agriculture, Commerce, Defense, Education, Energy, Health and Human Services,
Homeland Security, Housing and Urban Development, Interior, Justice, Labor, State,
Transportation, Treasury, and Veterans Affairs; National Aeronautics and Space
Administration; Environmental Protection Agency; U.S. Agency for International
Development; General Services Administration; National Science Foundation; Nuclear
Regulatory Commission; Office of Personnel Management; Small Business
Administration; and Social Security Administration.

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GAO-22-105047 Regulatory Flexibilities

Appendix I: Objectives, Scope, and
Methodology

The survey collected agency responses related to (1) whether the
agencies implemented any regulatory flexibilities in response to the
COVID-19 pandemic; (2) whether and how often agencies implemented
different types of flexibilities in response to the COVID-19 pandemic
compared to before the pandemic; (3) whether and how often agencies
implemented flexibilities through various methods in response to the
COVID-19 pandemic compared to before the pandemic; and (4) agencies’
assessment efforts of their flexibilities.
We emailed questionnaires to the 24 agencies in October 2021 and
requested that they coordinate internally across their components to
provide one comprehensive agency response.4 We received and
analyzed responses from all of these agencies.5 To ensure the accuracy
of data gathered through this survey, we developed the questionnaire
with the help of internal subject matter, legal, and survey specialist
experts, and pretested the questionnaire with multiple agency
representatives. We also reviewed responses from agencies to check for
consistency in responses, complete data, and corroboration from other
sources. The Department of Justice (DOJ) initially told us that it had not
implemented any regulatory flexibilities in response to COVID-19. Several
months after we administered our survey, in February 2022, DOJ
submitted a survey response indicating it had used several such
flexibilities. We reviewed this response and incorporated it within our
analysis.
To describe the plans, policies, and other tools selected agencies used to
identify, design, and assess flexibilities, we used agencies’ survey
responses and other considerations to identify five selected agencies for
follow-up work. First, we excluded those agencies from our selection that:

4Agencies were given discretion with how they coordinated internally across their own

components and provided one comprehensive response for their agency. For an example,
an agency may have reported the “average” response across all of its components or the
“highest” response reported by an individual component.
5We did not independently verify that agencies’ survey responses included only actions

that are “regulatory flexibilities” as defined by our methodology or that actions were
classified under the appropriate flexibility categories provided in our survey response
options. For the purposes of this report, we use agencies’ classifications of these actions.

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GAO-22-105047 Regulatory Flexibilities

Appendix I: Objectives, Scope, and
Methodology

did not respond to the survey or reported that they did not implement
regulatory flexibilities in response to the pandemic,6

generally did not focus their pandemic response priorities on the
American public, or

were the subject of our other issued or ongoing reports on the federal
response to the pandemic.7

Using the data reported by agencies in response to our survey, we
identified those agencies that reported implementing the greatest number
of flexibility types, prioritizing those agencies with responses indicating
that they used these flexibilities “much more” and “somewhat more” than
before the pandemic. We selected the Department of Homeland Security
(DHS) and the Environmental Protection Agency (EPA) because they
reported implementing each of the four flexibility types at least “somewhat
more” often in response to the pandemic.
We then prioritized those agencies that also reported using the greatest
number of methods to implement their flexibilities at least “somewhat
more” often in response to the pandemic compared to before the
pandemic. We selected the Departments of Energy (DOE) and
Transportation (DOT) on the basis of these criteria. To ensure we
included a range of agencies’ assessment actions, we identified those
agencies that reported implementing at least one regulatory flexibility that
they do not plan to assess, as well as one flexibility that they do plan to
assess. Based on these criteria, we also selected the Small Business
Administration (SBA) as our fifth and final agency.8

6As noted above, DOJ originally told us that it had not implemented regulatory flexibilities

during the pandemic. Given this response, and the timeframes of our report, DOJ was
excluded from our agency selection. Following its revised response, we concluded that
excluding DOJ was unlikely to have meaningfully impacted our findings or conclusions.
7The CARES Act included a provision for us to issue bi-monthly reports on the federal

response to the COVID-19 pandemic for a year, with periodic reports after that. Pub. L.
No. 116-136, § 19010, 134 Stat. 281, 579-81 (2020). Given the central role that certain
agencies have played in coordinating the nation’s pandemic response and the large
volume of our issued and ongoing reports related to those efforts, we made the decision to
exclude the Departments of Health and Human Services and Treasury from our agency
selection.
8In addition to SBA, two of the other agencies we already selected—DHS and DOE—also

reported at least one flexibility they plan to assess and one that they do not.

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GAO-22-105047 Regulatory Flexibilities

Appendix I: Objectives, Scope, and
Methodology

We interviewed knowledgeable officials at each of the five selected
agencies about how the agencies identified opportunities to implement
regulatory flexibilities, including whether they identified any tradeoffs, and
the agencies’ efforts to assess those flexibilities.9 We asked each
selected agency to discuss four flexibilities it implemented through
different methods and primarily at the agency’s discretion—rather than as
required by law—and to select those flexibilities that were most important
to its pandemic response efforts.10 As a result, the examples we discuss
in this report—including how selected agencies identified, planned, and
assessed their flexibilities—are illustrative in nature and not generalizable
to all flexibilities implemented by the agency.
We reviewed agency documentation of their flexibility examples, including
from agency website announcements and the Federal Register.
Additionally, for all three objectives, we reviewed and summarized
findings from our issued work related to flexibilities, including regulatory
flexibilities, the major agencies have implemented in response to the
pandemic. We incorporated several of these examples, as appropriate, to
provide context related to our findings. These flexibility examples
generally targeted four major categories of assistance or relief during the
pandemic: (1) public health, (2) individuals, (3) the economy, and (4)
states and tribes. See appendix II for a list of our products issued by April
2022 that contain information related to flexibilities—including regulatory
flexibilities—agencies implemented in response to the COVID-19
pandemic. We also communicated with staff from OMB’s Office of
Information and Regulatory Affairs regarding its role in helping agencies
identify and design regulatory flexibilities.
We conducted this performance audit from March 2021 to June 2022 in
accordance with generally accepted government auditing standards.
9Aside from the five selected agencies, we did not conduct follow-up interviews with

officials from the other agencies we surveyed.
10Some selected agencies—DHS, SBA, DOE, and DOT—provided details on flexibilities

implemented by several component offices, while EPA focused on flexibilities from its
Office of Land and Emergency Management. Specifically, DHS and SBA provided details
on four flexibilities from each of two components—DHS’ Federal Emergency Management
Agency and U.S. Citizenship and Immigration and SBA’s Office of Disaster Assistance
and Office of Capital Access. DOE provided details on flexibilities implemented across its
Offices of Energy Efficiency and Renewable Energy, Environmental Management,
Science, and the Southwestern Power Administration. Finally, DOT provided details on
flexibilities implemented by its U.S. Maritime Administration, Federal Transit
Administration, Pipeline and Hazardous Materials Safety Administration, and Federal
Highway Administration.

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GAO-22-105047 Regulatory Flexibilities

Appendix I: Objectives, Scope, and
Methodology

Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.

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GAO-22-105047 Regulatory Flexibilities

Appendix II: Our Reports Related to COVID-19
Flexibilities as of April 2022

Appendix II: Our Reports Related
to COVID19 Flexibilities as of
April 2022
In developing our reporting on regulatory flexibilities implemented in
response to COVID-19 by major departments and agencies, we identified
and reviewed completed and ongoing GAO work related to COVID-19
flexibilities, including regulatory flexibilities. Reviewed work includes our
recurring CARES Act reports, each of which contains a number of
enclosures addressing a range of federal programs and activities across
the government concerning public health and the economy.1 Our
reviewed work also includes reports developed in response to the CARES
Act and reports developed in response to congressional requests. In
tables 1 and 2 below, we summarize information on reports that we
identified as being related to COVID-19 flexibilities.
While our reporting focuses on “regulatory flexibilities,” tables 1 and 2
may include additional work focusing on non-regulatory flexibilities. We
did not conduct an in-depth review to exclude all work focusing on nonregulatory flexibilities from these tables.
Table 1: Enclosures on COVID-19 Flexibilities from Our Recurring CARES Act Reports as of April 2022
Report number and issuance date
GAO-22-105397
(Apr. 27, 2022)

GAO-22-105291
(Jan. 27, 2022)

GAO-22-105051 GAO-21-551
(Oct. 27, 2021) (July 19, 2021)

GAO-21-387
(Mar. 31, 2021)

Included

Enclosure topic

Major agency

Unemployment Insurance
programs

Department of
Labor (DOL)

Nutrition Assistance

Department of
Agriculture (USDA),
Department of
Health and Human
Services (HHS)

Not Included

Included

Not Included

Included

USDA

Not Included

Included

Child Nutrition

1We have regularly issued government-wide reports on the federal response to the

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GAO-22-105047 Regulatory Flexibilities

Appendix II: Our Reports Related to COVID-19
Flexibilities as of April 2022

Worker Safety and Health

DOL

Food and Drug
Administration Oversight of
COVID-19 Vaccine
Manufacturing Quality

HHS

Not Included

Included

Not Included

Included

Not Included

Medicaid Spending and
Flexibilities

HHS

Not Included

Included

Emergency Use
Authorizations for Medical
Devices

HHS, DOL
Not Included

Not Included

Included

Services for Older Adults

HHS, DOL

Not Included

Medicare Waivers

HHS

Not Included

Child Welfare

HHS

Not Included

Temporary Financial
Regulatory Changes

Department of the
Treasury

Not Included

Enclosure topic

Major agency

Unemployment Insurance
programs

Department of Labor
(DOL)

Nutrition Assistance

Report number and issuance date
GAO-21-265
(Jan. 28, 2021)

GAO-21-191
(Nov. 30, 2020)

GAO-20-701
(Sept. 21, 2020)

GAO-20-625
(June 25, 2020)

Included

Department of Agriculture
(USDA), Department of
Health and Human
Services (HHS)

Not Included

Included

Not Included

Included

Child Nutrition

USDA

Not Included

Included

Not Included

Worker Safety and Health

DOL

Included

Not Included

Included

Not Included

Included

Not Included

Food and Drug Administration HHS
Oversight of COVID-19
Vaccine Manufacturing
Quality
Medicaid Spending and
Flexibilities

HHS

Emergency Use
Authorizations for Medical
Devices

HHS, DOL

Services for Older Adults

HHS, DOL

Included

Not Included

Medicare Waivers

HHS

Not Included

Included

Not Included

Included

Child Welfare

HHS

Not Included

Included

Not Included

Temporary Financial
Regulatory Changes

Department of the
Treasury

Not Included

Included

Legend: Included = Included ✗ = Not Included.
Source: GAO. | GAO-22-105047

Notes: Information in this table focuses on flexibilities implemented by the 24 major departments and
agencies identified in the Chief Financial Officers Act of 1990, as amended. 31 U.S.C. § 901(b).

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GAO-22-105047 Regulatory Flexibilities

Appendix II: Our Reports Related to COVID-19
Flexibilities as of April 2022

For a complete list of our COVID-related products, including each of the recurring reports identified in
this table, see https://www.gao.gov/coronavirus

Table 2: Our Selected Ongoing and Completed Work on COVID-19 Flexibilities as of April 2022
Issuance date

Report number

Report topic

Major agency

Ongoing

None

U.S. Customs and Border Protection Trade
Facilitation During COVID-19

Department of Homeland Security

Ongoing

None

Financial Regulatory Oversight During COVID-19

Department of the Treasury

Ongoing

None

Fraud Risks in SBA Pandemic Relief Programs

Small Business Administration (SBA)

Ongoing

None

HHS Medicare Telehealth Waivers for COVID-19

Department of Health and Human
Services (HHS)

Ongoing

None

Medicare Provider Waivers Due to COVID-19

HHS

Ongoing

None

Political Interference at Selected HHS Agencies

HHS

Ongoing

None

Unemployment Insurance Fraud Risk Management
and the Extent of Fraud

Department of Labor (DOL)

Ongoing

None

Oversight of Unemployment Insurance During
COVID-19

DOL

Ongoing

None

COVID-19 Diagnostic Testing

HHS

Mar. 31, 2022

GAO-22-104700

Medicaid Telehealth During COVID-19

HHS

Feb. 10, 2022

GAO-22-105490

Oversight of Emergency Rental Assistance Program

Treasury

Oct. 21, 2021

GAO-22-104429

Aviation Operations in a Pandemic Environment

Department of Transportation

Sept. 30, 2021

GAO-21-104542

HUD CARES Act Oversight

Department of Housing and Urban
Development (HUD)

Sept. 8, 2021

GAO-21-104401

Medicaid Waivers and Flexibilities for COVID-19

HHS

July 12, 2021

GAO-21-554

Pandemic Forbearance and Foreclosure Protections

HUD, Department of Agriculture,
Department of Veterans Affairs

May 19, 2021

GAO-21-575T

Flexibilities in the Medicare and Medicaid Programs
During the COVID-19 Public Health Emergency

HHS

Feb. 11, 2021

GAO-21-319

Operation Warp Speed: COVID-19 Vaccine
Development Status and Efforts to Address
Manufacturing Challenges

HHS, Department of Defense (DOD)

Nov. 17, 2020

GAO-21-207

Therapeutics and Vaccines for COVID-19

HHS, DOD

Source: GAO. | GAO-22-105047

Note: Information in this table focuses on flexibilities implemented by the 24 major departments and
agencies identified in the Chief Financial Officers (CFO) Act of 1990, as amended. 31 U.S.C. §
901(b). Some work may also address flexibilities implemented by non-CFO Act agencies.

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GAO-22-105047 Regulatory Flexibilities

Appendix III: Comments from the U.S. Agency
for International Development

Appendix III: Comments from the U.S.
Agency for International Development

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GAO-22-105047 Regulatory Flexibilities

Appendix III: Comments from the U.S. Agency
for International Development

Text of Appendix III: Comments from the U.S. Agency
for International Development
June 3, 2022
Yvonne D. Jones Director, Strategic Issues
U.S. Government Accountability Office
441 G Street, N.W.
Washington, D.C. 20226
Re:
COVID-19: Agencies Increased Use of Some Regulatory Flexibilities and Are
Taking Steps to Assess Them (GAO-22-105047)
Dear Ms. Jones:
I am pleased to provide the formal response of the U.S. Agency for International
Development (USAID) to the draft report produced by the U.S. Government
Accountability Office (GAO) titled, COVID-19: Agencies Increased Use of Some
Regulatory Flexibilities and Are Taking Steps to Assess Them (GAO-22-105047).
This report contains no recommendations for USAID. We were pleased to participate
in the GAO’s evaluation of the regulatory flexibilities implemented in order to address
the COVID-19 pandemic. The COVID-19 pandemic has increased humanitarian
needs and funding requirements around the world, and USAID is working to address
the primary, secondary, and tertiary impacts of the pandemic globally. We seek
maximum effectiveness of taxpayer dollars in responding to COVID-19 and we
believe that use of these flexibilities has helped facilitate this.
I am transmitting this letter from USAID for inclusion in the GAO’s final report. Thank
you for the opportunity to respond to the draft report, and for the courtesies extended
by your staff while conducting this engagement. We appreciate the opportunity to
participate in this evaluation.
Sincerely,
Colleen Allen
Assistant Administrator Bureau for Management

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GAO-22-105047 Regulatory Flexibilities

Appendix IV: Comments from the Nuclear
Regulatory Commission

Appendix IV: Comments from the
Nuclear Regulatory Commission

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GAO-22-105047 Regulatory Flexibilities

Appendix IV: Comments from the Nuclear
Regulatory Commission

Text of Appendix IV: Comments from the Nuclear
Regulatory Commission
Ms. Yvonne D. Jones, Director
Strategic Issues
U.S. Government Accountability Office
441 G St., NW
Washington, DC 20548
Dear Ms. Jones:
Thank you for providing the U.S. Nuclear Regulatory Commission (NRC) with the
opportunity to review and comment on the U.S. Government Accountability Office’s
(GAO’s) draft report
GAO-22-105047, “COVID-19: Agencies Increased Use of Some Regulatory
Flexibilities and Are Taking Steps to Assess Them.” The NRC has reviewed the draft
report and does not have any comments.
If you have any questions regarding this response, please contact John Jolicoeur.
Mr. Jolicoeur can be reached by telephone at (301) 415-1642 or by email at
John.Jolicoeur@nrc.gov.
Sincerely,
Daniel H. Dorman
Executive Director
for Operations

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GAO-22-105047 Regulatory Flexibilities

Appendix V: Comments from the Social
Security Administration

Appendix V: Comments from the
Social Security Administration

Page 43

GAO-22-105047 Regulatory Flexibilities

Appendix V: Comments from the Social
Security Administration

Text of Appendix V: Comments from the Social
Security Administration
SOCIAL SECURITY
Office of the Commissioner
June 8, 2022
Yvonne D. Jones
Director, Strategic Issues
United States Government Accountability Office
441 G Street, NW
Washington, DC 20548
Dear Director Jones:
Thank you for the opportunity to review the draft report, “COVID-19: Agencies
Increased Use of Some Regulatory Flexibilities and Are Taking Steps to Assess
Them” (GAO-22-105047). We have no comments.
Please contact me at (410) 965-2611 if I can be of further assistance. Your staff may
contact Trae Sommer, Director of the Audit Liaison Staff, at (410) 965-9102.
Sincerely,
Scott Frey
Chief of Staff
SOCIAL SECURITY ADMINISTRATION

Page 44

BALTIMORE, MD 21235-0001

GAO-22-105047 Regulatory Flexibilities

Appendix VI: GAO Contacts and Staff
Acknowledgments

Appendix VI: GAO Contacts and
Staff Acknowledgments
GAO Contacts
Yvonne D. Jones at (202) 512-6806 or JonesY@gao.gov

Staff Acknowledgments
In addition to the above contact, Danielle Novak (Assistant Director), J.
Daniel Paulk and Mackenzie D. Verniero (Analysts-in-Charge),
Jacqueline Chapin, Karin Fangman, Steven Putansu, Robert Robinson,
and Wade Tanner, made major contributions to this report.

(105047)

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GAO-22-105047 Regulatory Flexibilities

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