[Federal Register Volume 86, Number 76 (Thursday, April 22, 2021)]
[Rules and Regulations]
[Pages 21195-21207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08359]


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DEPARTMENT OF EDUCATION

34 CFR Chapter II

[Docket ID ED-2021-OESE-0061]
RIN 1810-AB64


American Rescue Plan Act Elementary and Secondary School 
Emergency Relief Fund

AGENCY: Office of Elementary and Secondary Education, Department of 
Education.

ACTION: Interim final requirements.

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SUMMARY: The Department of Education (``Department'') establishes 
interim final requirements for the American Rescue Plan Elementary and 
Secondary School Emergency Relief (``ARP ESSER'') Fund, under section 
2001 of the American Rescue Plan (``ARP'') Act of 2021. These 
requirements are intended to promote accountability, transparency, and 
the effective use of funds by: Ensuring that each State educational 
agency (``SEA'') meaningfully engages in stakeholder consultation and 
takes public input into account in the development of its ARP ESSER 
plan; ensuring that each local educational agency (``LEA'') develops a 
plan for the use of its ARP ESSER funds and engages in meaningful 
consultation and seeks public input as it develops the LEA ARP ESSER 
plan; and clarifying how an LEA must meet the statutory requirement to 
develop a plan for the safe return to in-person instruction and 
continuity of services.

DATES: Effective date: These interim final requirements are effective 
April 22, 2021.
    Comment due date: We must receive your comments on or before May 
24, 2021.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or by postal mail, commercial delivery, or hand delivery. We will not 
accept comments submitted by fax or by email or those submitted after 
the comment period. To ensure that we do not receive duplicate copies, 
please submit your comments only once. In addition, please include the 
Docket ID at the top of your comments.
    If you are submitting comments electronically, we strongly 
encourage you to submit any comments or attachments in Microsoft Word 
format. If you must submit a comment in Adobe Portable Document Format 
(PDF), we strongly encourage you to convert the PDF to print-to-PDF 
format or to use some other commonly used searchable text format. 
Please do not submit the PDF in a scanned format. Using a print-to-PDF 
format allows the Department to electronically search and copy certain 
portions of your submissions.
     Federal eRulemaking Portal: Go to www.regulations.gov to 
submit your comments electronically. Information on using 
regulations.gov, including instructions for accessing agency documents, 
submitting comments, and viewing the docket, is available on the site 
under ``FAQ.''
     Postal Mail, Commercial Delivery, or Hand Delivery: The 
Department strongly encourages commenters to submit their comments 
electronically. However, if you mail or deliver your comments about the 
interim final requirements, address them to: Britt Jung, U.S. 
Department of Education, 400 Maryland Avenue SW, Room 3W113, 
Washington, DC 20202.

    Privacy Note: The Department's policy is to make comments 
received from members of the public available for public viewing on 
the Federal eRulemaking Portal at www.regulations.gov. Therefore, 
commenters should include in their comments only information that 
they wish to make publicly available.


FOR FURTHER INFORMATION CONTACT: Britt Jung, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 3W113, Washington, DC 20202. 
Telephone: (202) 453-5563. Email: [email protected].
    If you use a telecommunications device for the deaf (``TDD'') or a 
text telephone (``TTY''), call the Federal Relay Service (``FRS''), 
toll free, at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: Invitation to Comment: Although the 
Department has decided to issue these interim final requirements 
without first publishing proposed requirements for public comment, we 
are interested in whether you think we should make any changes in these 
requirements. We invite your comments. We will consider these comments 
in determining whether to revise the requirements.
    To ensure that your comments may be most effectively considered, we 
urge you to clearly identify the specific section or sections of the 
interim final requirements that each comment addresses and to arrange 
your comments in the same order as the interim final requirements.
    We invite you to assist us in complying with the specific 
requirements of Executive Orders 12866 and 13563 and their overall 
requirement of reducing regulatory burden that might result from these 
interim final requirements. Please let us know of any further ways by 
which we could reduce potential costs or increase potential benefits 
while preserving the effective and efficient administration of the 
Department's programs and activities.
    During and after the comment period, you may inspect all public 
comments about these interim final requirements by accessing 
www.regulations.gov. Due to the current COVID-19 public health 
emergency, the Department buildings are not open to the public. 
However, upon reopening, you may also inspect the comments in person at 
400 Maryland Avenue SW, Washington, DC 20202, between 8:30 a.m. and 
4:00 p.m., Eastern Time, Monday through Friday of each week except 
Federal holidays. To schedule a time to inspect comments, please 
contact the person

[[Page 21196]]

listed under FOR FURTHER INFORMATION CONTACT.
    Assistance to Individuals with Disabilities in Reviewing the 
Rulemaking Record: On request, we will provide an appropriate 
accommodation or auxiliary aid to an individual with a disability who 
needs assistance to review the comments or other documents in the 
public rulemaking record for these interim final requirements. To 
schedule an appointment for this type of accommodation or auxiliary 
aid, please contact the person listed under FOR FURTHER INFORMATION 
CONTACT.
    Purpose of Program: The ARP ESSER Fund provides a total of nearly 
$122 billion to SEAs and LEAs to help safely reopen and sustain the 
safe operation of schools and address the impacts of the coronavirus 
disease 2019 (``COVID-19'') pandemic on the Nation's students by 
addressing students' academic, social, emotional, and mental health 
needs.
    Program Authority: The American Rescue Plan Act of 2021, Public Law 
117-2, March 11, 2021.
    Background: In early 2020, COVID-19 swept through the world, 
resulting in major upheaval to all aspects of life. In the United 
States, this resulted in unprecedented school closures in the spring of 
2020. For tens of millions of students, learning was abruptly 
interrupted. For many students who were already facing limited 
educational opportunities and disengagement--including students from 
low-income families, students of color, English learners, children with 
disabilities, students experiencing homelessness, children in foster 
care, migratory students, children who are incarcerated, and other 
underserved students--losing access to reliable in-person instruction 
and the many supports schools can provide has led to significant 
challenges.
    Since spring of 2020, the opportunities for students to learn have 
varied significantly across the country. Some schools have remained 
fully virtual and still have not physically reopened, while others have 
been providing in-person instruction for months. Many schools are 
providing a hybrid approach, with virtual instruction for a portion of 
the school week, and in-person instruction for the remainder of the 
week. As the initial 2021 National Assessment of Educational Progress 
(``NAEP'') School Survey revealed, there are significant disparities in 
both access to and enrollment in in-person instruction across the 
country, with white students much more likely than students of color to 
be learning in person as of February.\1\ Many of the most disadvantaged 
students have frequently encountered barriers to accessing virtual 
learning.\2\ Students across virtual and in-person settings are facing 
significant academic, social, emotional, and mental health challenges 
as a result of the interrupted education and the trauma caused by the 
COVID-19 pandemic.
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    \1\ NAEP 2021 School Survey, released by the Department of 
Education Institute of Education Sciences (March 24, 2021), 
available at https://nces.ed.gov/nationsreportcard/about/covid19.aspx.
    \2\ Korman, H., O'Keefe, B., Repka, M., (2020, Oct. 21). Missing 
in the Margins: Estimating the Scale of the COVID-19 Attendance 
Crisis. Bellweather Education Partners. Retrieved from: https://bellwethereducation.org/publication/missing-margins-estimating-scale-covid-19-attendance-crisis#Why%20aren't%20students%20attending%20school?.
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    In recognition of the immense challenges facing students, 
educators, staff, schools, LEAs, and SEAs right now, Congress has made 
emergency funds available to SEAs and LEAs to prevent, prepare for, and 
respond to COVID-19, first through the Coronavirus Aid, Relief, and 
Economic Security (``CARES'') Act, Public Law 116-136, div. B, tit. 
VIII, section 18003, enacted on March 27, 2020; next through the 
Coronavirus Response and Relief Supplemental Appropriations (CRRSA) 
Act, 2021, Public Law 116-260, section 313, enacted on December 27, 
2020; and, most recently and significantly, through the ARP Act, Public 
Law 117-2, section 2001, enacted on March 11, 2021.
    The ARP Act provides a total of nearly $122 billion via the ARP 
ESSER Fund to SEAs and LEAs to help schools return safely to in-person 
instruction, maximize in-person instructional time, sustain the safe 
operation of schools, and address the academic, social, emotional, and 
mental health impacts of the COVID-19 pandemic on the Nation's 
students. ARP ESSER provides funds to each SEA in the same proportion 
as each State received under part A of title I of the Elementary and 
Secondary Education Act of 1965 (``ESEA'') in fiscal year 2020.\3\ An 
SEA must allocate at least 90 percent of its ARP ESSER grant funds to 
its LEAs (including charter schools that are LEAs) in the State in the 
same proportion that the LEAs received under part A of title I of the 
ESEA in fiscal year 2020.\4\ Each SEA is required to reserve at least 5 
percent of its total ARP ESSER funds to carry out activities to address 
the academic impact of lost instructional time; \5\ at least 1 percent 
for the implementation of evidence-based summer enrichment programs; 
and at least 1 percent for the implementation of evidence-based 
comprehensive afterschool programs.\6\ Each of these reservations 
requires that the SEA use evidence-based interventions that respond to 
the academic, social, emotional, and mental health needs of students, 
particularly groups of students disproportionately impacted by the 
pandemic.\7\ The SEA may reserve no more than half of 1 percent of its 
total ARP ESSER allocation for administrative costs.\8\ The SEA may use 
any remaining funds for emergency needs as determined by the SEA to 
address issues responding to COVID-19.\9\
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    \3\ Section 2001(c) of the ARP Act.
    \4\ Section 2001(d)(1) of the ARP Act.
    \5\ ``Academic impact of lost instructional time'' has the same 
meaning as ``learning loss,'' which is the term that is used in the 
ARP Act.
    \6\ Section 2001(f)(1)-(3) of the ARP Act.
    \7\ Id.
    \8\ Section 2001(f)(4) of the ARP Act.
    \9\ Id.
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    An LEA may use its ARP ESSER funds for a wide variety of activities 
related to educating students during the COVID-19 pandemic and 
addressing the impacts of the COVID-19 pandemic on students and 
educators. For example, an LEA may use the ARP ESSER funds to maintain 
the health and safety of students and school staff as they return to 
in-person instruction (e.g., adopting policies consistent with guidance 
on reopening schools from the Centers for Disease Control and 
Prevention (``CDC''), available at https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/operation-strategy.html, 
including universal and correct wearing of masks; modifying facilities 
to allow for physical distancing (e.g., use of cohorts/podding); 
handwashing and respiratory etiquette; cleaning and maintaining healthy 
facilities, including improving ventilation; contact tracing in 
combination with isolation and quarantine, in collaboration with the 
State, local, territorial, or Tribal health departments; diagnostic and 
screening testing; efforts to provide vaccinations to school 
communities; appropriate accommodations for children with disabilities 
with respect to health and safety policies; and coordination with State 
and local health officials). The Department released related resources 
to assist schools in safely reopening for in-person learning as part of 
the ED COVID-19 Handbook. Volume 1 of the ED COVID-19 Handbook is 
available at https://www2.ed.gov/documents/coronavirus/reopening.pdf. 
Most

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recently, the Department released Volume 2 of the ED COVID-19 Handbook 
to assist schools in addressing critical student needs. Volume 2 of the 
ED COVID-19 Handbook is available at https://www2.ed.gov/documents/coronavirus/reopening-2.pdf.
    An LEA may also use the ARP ESSER funds to address the academic, 
social, emotional, and mental health needs of its students by, for 
example, hiring additional personnel such as school counselors, 
psychologists, and nurses and implementing strategies to accelerate 
learning and to make investments in teaching and learning that will 
result in lasting improvements in the LEA. An LEA may also use the 
funds for activities that are necessary to maintain the operation of 
services in LEAs, for example, to stabilize the workforce and avoid 
layoffs. In December 2020, the Bureau of Labor Statistics reported an 
8.6 percent decline in the local government education workforce over 
the previous 12 months, to its smallest size for the same month since 
1999.\10\
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    \10\ Bureau of Labor Statistics. (2021). Employment, Hours, and 
Earnings from the Current Employment Statistics survey (National) 
for all employees, local government education, seasonally adjusted. 
Data extracted on April 1, 2021. https://beta.bls.gov/dataViewer/view/timeseries/CES9093161101.
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    In addition to the wide range of allowable uses of ARP ESSER funds, 
an LEA that receives ARP ESSER funds must reserve at least 20 percent 
of the funds to measure and address the academic impact of lost 
instructional time on all students, through the implementation of 
evidence-based interventions, such as interventions implemented through 
summer learning or summer enrichment, extended day, comprehensive 
afterschool programs, or extended school year programs. The LEA must 
also ensure that such interventions respond to students' academic, 
social, emotional, and mental health needs and address the impact of 
the COVID-19 pandemic on groups of students disproportionately impacted 
by the pandemic.\11\
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    \11\ Section 2001(e)(1) of the ARP Act.
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    On March 24, 2021, the Department made available two thirds of each 
SEA's ARP ESSER allocation to support ongoing efforts to reopen schools 
safely for in-person learning, keep schools safely open once students 
are back, and address the academic, social, emotional, and mental 
health needs of all students. To receive the remaining third of an 
SEA's ARP ESSER allocation and to comply with the terms and conditions 
of the ARP ESSER funds the SEA has already received, the Department is 
requiring that the SEA develop and submit an ARP ESSER plan that 
describes, among other things, the current education needs within the 
State, the SEA's intended uses of ARP ESSER funds, and the plans for 
supporting LEAs in their planning for and use of ARP ESSER funds.
    As described in more detail below, the Secretary is establishing 
interim final requirements for ARP ESSER related to SEA consultation, 
LEA ARP ESSER plans, and the statutory requirement that LEAs receiving 
ARP ESSER funds develop plans for the safe return to in-person 
instruction and continuity of services.
    SEA Consultation with Stakeholders; Public Input Statute: Under 20 
U.S.C. 1231g, unless otherwise limited by law, the Secretary is 
authorized to require the submission of applications for assistance 
under any applicable program. ``Applicable program'' is defined in 20 
U.S.C. 1221(c)(1) as any program for which the Department has 
administrative responsibility, which includes ARP ESSER. Title VIII of 
Division B of the CARES Act directs the Department to carry out the 
Education Stabilization Fund, of which the ARP ESSER funds are a part. 
Section 2001 of the ARP Act provides for the Department to make grants 
to each SEA from the ARP ESSER funds. Under 20 U.S.C. 1221e-3, the 
Secretary has the authority to promulgate rules governing the programs 
administered by the Department.
    Interim Final Requirement: Under this requirement, an SEA must 
engage in meaningful consultation with various stakeholder groups on 
its ARP ESSER plan and give the public an opportunity to provide input 
on the development of the plan and take such input into 
account.Specifically, an SEA is required to consult with students; 
families; Tribes (if applicable); civil rights organizations (including 
disability rights organizations); school and district administrators 
(including special education administrators); superintendents; charter 
school leaders (if applicable); teachers, principals, school leaders, 
other educators, school staff, and their unions; and stakeholders 
representing the interests of children with disabilities, English 
learners, children experiencing homelessness, children in foster care, 
migratory students, children who are incarcerated, and other 
underserved students in the development of its ARP ESSER plan. Under 
the requirement, an SEA must also provide the public with the 
opportunity to provide input in the development of the plan and take 
such input into account.
    To facilitate consultation on an SEA's ARP ESSER plan and ongoing 
communication with the public, under the requirement, an SEA must also 
make information publicly available on its website as soon as possible 
but no later than June 21, 2021, and regularly provide updated 
available information on its website, on the numbers of schools in the 
State providing each mode of instruction (i.e., fully remote or online-
only instruction, both remote/online instruction and in-person 
instruction (hybrid model), and full-time in-person instruction). The 
SEA must also make publicly available student enrollment data and, to 
the extent available, student attendance data for all students and 
disaggregated by students from low-income families, students from each 
racial and ethnic group, gender, English learners, children with 
disabilities, children experiencing homelessness, children in foster 
care, and migratory students for each mode of instruction.
    Reasons: As explained in the background text above, the ARP ESSER 
program provides significant resources to SEAs and LEAs to respond to 
the educational disruptions caused by the COVID-19 pandemic. Given the 
unprecedented funding available and the widespread impacts of the 
COVID-19 pandemic, ARP ESSER funding presents a unique opportunity not 
only to help students and educators overcome the trauma and the loss of 
instructional time that they may have experienced, but also to make 
investments in student achievement and success. With strategic 
investment, ARP ESSER funding can build the capacity of States, LEAs, 
and schools to sustain meaningful and effective teaching and learning 
and address the needs of underserved students. Taking full advantage of 
this opportunity is consistent with the President's determination to 
``build back better'' in response to the COVID-19 pandemic.
    We believe diverse stakeholders will have significant insight into 
the effects of the COVID-19 pandemic on teaching and learning that will 
be critical to informing an SEA's plan for ARP ESSER, including how it 
will use its ARP ESSER funds, support LEAs in the use of their ARP 
ESSER funds, and evaluate the effectiveness of ARP ESSER. For that 
reason, under the requirement, an SEA must engage with students; 
families; Tribes (if applicable); civil rights organizations (including 
disability rights organizations); school and district administrators 
(including special education administrators); superintendents; charter 
school leaders (if applicable); teachers, principals,

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school leaders, other educators, school staff, and their unions; and 
stakeholders representing the interests of children with disabilities, 
English learners, children experiencing homelessness, children in 
foster care, migratory students, children who are incarcerated, and 
other underserved students in the development of the SEA's ARP ESSER 
plan. The SEA must also provide the general public with the opportunity 
to provide input (e.g., by requesting input on its website) and must 
take the public input it receives into account. By seeking input from 
these diverse stakeholders and the general public, an SEA will be 
better positioned to fully understand and adequately respond to the 
education needs in the State and the impact of the COVID-19 pandemic on 
all students, and particularly the groups of students most 
significantly impacted by the COVID-19 pandemic. The SEA will also be 
better positioned to make critical investments not just to recover, but 
also to implement and improve effective approaches for teaching and 
learning that accelerate student learning outcomes and address the 
needs of underserved students most impacted by the COVID-19 pandemic.
    The requirement that the SEA make information publicly available on 
its website about the number of schools offering fully remote or 
online-only instruction, both remote/online instruction and in-person 
instruction (hybrid), and full-time in-person instruction is an 
important initial step toward transparency and understanding of the 
continued impact of the pandemic on learning and teaching. 
Disaggregated enrollment and, if available, attendance data will allow 
the public to provide more informed input on the SEA's ARP ESSER plan 
and initial approaches for targeting of federal resources to address 
the impact of interrupted instruction and the needs of students and 
teachers.

LEA ARP ESSER Plans

    Statute: Title VIII of Division B of the CARES Act directs the 
Department to carry out the Education Stabilization Fund, of which the 
ARP ESSER funds are a part. Section 2001 of the ARP Act provides for 
the Department to make grants to each SEA from the ARP ESSER funds. An 
SEA must allocate at least 90 percent of its ARP ESSER grant funds to 
its LEAs (including charter schools that are LEAs) in the State in the 
same proportion that the LEAs received under part A of title I of the 
ESEA in Fiscal Year 2020, as required by section 2001(d)(1) of the ARP 
Act; and section 2001(e) of the ARP Act prescribes certain mandatory 
and permissive uses of LEAs' funds. Under 20 U.S.C. 1221e-3, the 
Secretary has the authority to promulgate rules governing the programs 
administered by the Department.
    Interim Final Requirement: Under this requirement, each LEA that 
receives ARP ESSER funds must develop, submit to the SEA on a 
reasonable timeline determined by the SEA, and make publicly available 
on the LEA's website, a plan for the LEA's use of ARP ESSER funds. The 
plan, and any revisions to the plan submitted consistent with 
procedures established by the SEA, must include at a minimum a 
description of--
    (1) The extent to which and how the funds will be used to implement 
prevention and mitigation strategies that are, to the greatest extent 
practicable, consistent with the most recent CDC guidance on reopening 
schools, in order to continuously and safely open and operate schools 
for in-person learning;
    (2) How the LEA will use the funds it reserves under section 
2001(e)(1) of the ARP Act to address the academic impact of lost 
instructional time through the implementation of evidence-based 
interventions, such as summer learning or summer enrichment, extended 
day, comprehensive afterschool programs, or extended school year;
    (3) How the LEA will spend its remaining ARP ESSER funds consistent 
with section 2001(e)(2) of the ARP Act; and
    (4) How the LEA will ensure that the interventions it implements, 
including but not limited to the interventions implemented under 
section 2001(e)(1) of the ARP Act to address the academic impact of 
lost instructional time, will respond to the academic, social, 
emotional, and mental health needs of all students, and particularly 
those students disproportionately impacted by the COVID-19 pandemic, 
including students from low-income families, students of color, English 
learners, children with disabilities, students experiencing 
homelessness, children in foster care, and migratory students.
    Under this requirement, an LEA must engage in meaningful 
consultation with stakeholders and give the public an opportunity to 
provide input in the development of its plan. Specifically, an LEA must 
engage in meaningful consultation with students; families; school and 
district administrators (including special education administrators); 
and teachers, principals, school leaders, other educators, school 
staff, and their unions. Additionally, an LEA must engage in meaningful 
consultation with each of the following, to the extent present in or 
served by the LEA: Tribes; civil rights organizations (including 
disability rights organizations); and stakeholders representing the 
interests of children with disabilities, English learners, children 
experiencing homelessness, children in foster care, migratory students, 
children who are incarcerated, and other underserved students.
    Finally, under the requirement, each LEA's ARP ESSER plan must be: 
In an understandable and uniform format; to the extent practicable, 
written in a language that parents can understand or, if not 
practicable, orally translated; and, upon request by a parent who is an 
individual with a disability, provided in an alternative format 
accessible to that parent.
    Reasons:
    LEA ARP ESSER Plan--
    Under the ARP ESSER program, LEAs are receiving significant 
resources to respond to student and educator needs as schools continue 
to safely reopen. LEA plans are necessary to ensure transparency and 
accountability for use of the funds. As discussed in more detail below, 
the public and in particular students, their families, and educators, 
have a vested interest in understanding an LEA's priorities and plans 
for the funds and whether and how the LEA will use the funds to address 
their students' academic, social, emotional, and mental health needs. 
Requiring the development and posting of the LEA's plan will result in 
important transparency.
    Additionally, ARP ESSER provides significant federal resources to 
respond to the COVID-19 pandemic that, for some LEAs, comprise millions 
of dollars of emergency funding. Requiring each LEA to develop a plan 
for the use of those funds will provide a mechanism for SEAs and the 
Department to ensure that the ARP ESSER funds are being used consistent 
with statutory requirements and to meet the needs of schools, students, 
and educators, in particular those students most impacted by the COVID-
19 pandemic.
    The minimum requirements for the ARP ESSER plans ensure that LEAs 
are using ARP ESSER funds for their intended purposes, including 
whether and how they will use the funds specifically for COVID-19 
prevention and mitigation strategies, how the funds will be used to 
address the academic impact of lost instructional time through the 
implementation of evidence-based interventions, consistent with the 
requirement in section 2001(e)(1) of the ARP Act that each LEA reserve 
at least 20 percent of its ARP ESSER funds for that purpose, and how 
the LEA will ensure that those interventions respond

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to the academic, social, emotional, and mental health needs of all 
students and particularly those students disproportionately impacted by 
the COVID-19 pandemic. Given the unique circumstances in each State, we 
believe each SEA is best situated to determine what additional 
requirements to include in the LEA ARP ESSER plan. For example, an SEA 
might require that the LEA ARP ESSER plan include data that illustrates 
the LEA's most pressing needs or descriptions of promising practices 
that the LEA has implemented to accelerate learning. The SEA might also 
require that the LEA's ARP ESSER plan contain the information required 
in the LEA's plan for the safe return to in-person instruction and 
continuity of services, in which case the LEA may develop one plan that 
addresses both sets of requirements rather than two separate plans 
(i.e., one plan that addresses use of ARP ESSER funds and the safe 
return to in-person instruction and continuity of services). The SEA 
also establishes the deadline by which the LEA must submit its ARP 
ESSER plan, which must be reasonable and should be within no later than 
90 days after receiving its ARP ESSER allocation.

LEA ARP ESSER Plan Meaningful Consultation

    COVID-19 has had a dramatic impact on the Nation's education 
system. In addition to disrupting teaching and learning, it has 
exacerbated existing inequities in our schools and school districts. 
Every aspect of student life has been impacted by the COVID-19 
pandemic: Students' classes and courses of study have been interrupted 
and/or delayed and students' social, emotional, and mental health have 
been negatively impacted by the isolation and anxiety of living through 
a pandemic and quarantine along with the additional associated stresses 
placed on their families.\12\
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    \12\ See Korman, H., O'Keefe, B., & Repka, M., (2020, Oct. 21). 
Missing in the Margins: Estimating the Scale of the Covid-19 
Attendance Crisis. Bellweather Education Partners. Retrieved from: 
https://bellwethereducation.org/publication/missing-margins-estimating-scale-covid-19-attendance-crisis#Why%20aren't%20students%20attending%20school?; Sparks, S., 
(2020, Nov. 12) Children's Mental Health Emergencies Skyrocketed 
After COVID-19 Hit. What Schools Can Do, Education Week. Retrieved 
from: https://www.edweek.org/leadership/childrens-mental-health-emergencies-skyrocketed-after-covid-19-hit-what-schools-can-do/2020/11; Dorn, E., Hanckock, B., Sarakatsannis, J., & Viruleg, E. (2020). 
COVID-19 and Learning Loss--Disparities Grow and Students Need Help. 
https://www.mckinsey.com/industries/public-and-social-sector/our-insights/covid-19-and-learning-loss-disparities-grow-and-students-need-help#; Kuhfeld, M., Tarasawa, B., Johnson, A., Ruzek, E., & 
Lewis, K. (2020, Nov.). Learning During COVID-19: Initial Findings 
on Students' Reading and Math Achievement and Growth. NWEA. 
Retrieved from: https://www.nwea.org/research/publication/learning-during-covid-19-initial-findings-on-students-reading-and-math-achievement-and-growth/.
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    As students and teachers continue to return to full-time in-person 
education, they will have important insights into how schools should 
approach prevention and mitigation of COVID-19, and into what may be 
needed to support student success. For this reason, in developing their 
ARP ESSER plans, LEAs will be required to meaningfully consult with 
students; families; school and district administrators (including 
special education administrators); and teachers, principals, school 
leaders, other educators, school staff, and their unions. Additionally, 
an LEA is also required to engage in meaningful consultation with each 
of the following, to the extent present in or served by the LEA: 
Tribes; civil rights organizations (including disability rights 
organizations); and stakeholders representing the interests of children 
with disabilities, English learners, children experiencing 
homelessness, children in foster care, migratory students, children who 
are incarcerated, and other underserved students. An LEA's decisions 
about how to use its ARP ESSER funds will directly impact the students, 
families, and stakeholders in their school district, and thus the LEA's 
plans must be tailored to the specific needs faced by students and 
schools within the district. These diverse stakeholders will have 
significant insight into what prevention and mitigation strategies 
should be pursued to keep students and staff safe, as well as how the 
various COVID-19 prevention and mitigation strategies impact teaching, 
learning, and day-to-day school experiences.
    With regard to addressing the academic, social, emotional, and 
mental health needs of all students, particularly those most impacted 
by the pandemic, we believe that it is critical that LEAs solicit and 
consider the input of students and their families to identify their 
most pressing needs. Close coordination with Tribes is critical to 
effective support for Native American students, so LEAs need to consult 
Tribes, as applicable. In addition, the Department understands 
educators and students' families will have important insights into and 
observations of students' academic, social, emotional, and mental 
health needs garnered from their experiences during the COVID-19 
pandemic. Stakeholders will similarly have critical insights into how 
best to address the academic impact of lost instructional time that 
LEAs are required to address with at least 20 percent of their ARP 
ESSER funds. For all of these reasons, through this consultation, LEAs 
will be better positioned to fully plan to use ARP ESSER funds to 
adequately respond to the needs of all students, particularly those 
most impacted by the COVID-19 pandemic.

LEA ARP ESSER Plan Accessibility

    The requirement also mandates that LEA ARP ESSER plans be 
accessible, including to parents with limited English proficiency and 
individuals with a disability. This requirement is intended to help 
ensure that all parents, including parents with limited English 
proficiency or individuals with disabilities, are able to access and 
understand the information in an LEA's ARP ESSER plan, consistent with 
the Department's interpretation of Title VI of the Civil Rights Act of 
1964 and existing obligations to parents with disabilities under the 
Americans with Disabilities Act (ADA).

LEA Plan for Safe Return to In-Person Instruction and Continuity of 
Services

    Statute: Section 2001(i)(1) of the ARP Act requires each LEA that 
receives ARP ESSER funds to develop and make publicly available on the 
LEA's website, not later than 30 days after receiving ARP ESSER funds, 
a plan for the safe return to in-person instruction and continuity of 
services for all schools, including those that have already returned to 
in-person instruction. Section 2001(i)(2) of the ARP Act further 
requires that the LEA seek public comment on the plan and take those 
comments into account in the development of the plan. Finally, section 
2001(i)(3) of the ARP Act states that an LEA that developed a plan for 
the safe return to in-person instruction and continuity of services 
prior to the date of enactment of the ARP Act will be deemed to have 
met the requirement to develop a plan under section 2001(i)(1) as long 
as the plan meets the statutory requirements (i.e., is publicly 
available on the LEA's website and was developed after the LEA sought 
and took into account public comment).
    Interim Final Requirement: As described in more detail below, this 
requirement clarifies what an LEA's plan for the safe return to in-
person instruction and continuity of services must address and requires 
periodic review and, when needed, revision of the plan to ensure it 
remains relevant and meets statutory and regulatory requirements.

[[Page 21200]]

    First, the requirement clarifies that an LEA's plan must include 
how it will maintain the health and safety of students, educators, and 
other school and LEA staff, and the extent to which it has adopted 
policies, and a description of any such policies, on each of the CDC's 
safety recommendations including: Universal and correct wearing of 
masks; modifying facilities to allow for physical distancing (e.g., use 
of cohorts/podding); handwashing and respiratory etiquette; cleaning 
and maintaining healthy facilities, including improving ventilation; 
contact tracing in combination with isolation and quarantine, in 
collaboration with the State, local, territorial, or Tribal health 
departments; diagnostic and screening testing; efforts to provide 
vaccinations to school communities; appropriate accommodations for 
children with disabilities with respect to health and safety policies; 
and coordination with State and local health officials.
    Second, the requirement further clarifies that the plan must 
describe how the LEA will ensure continuity of services, including but 
not limited to services to address students' academic needs and 
students' and staff social, emotional, mental health and other needs, 
which may include student health and food services.
    Third, the requirement provides that, during the period of the ARP 
ESSER award established in section 2001(a) of the ARP Act (i.e., until 
September 30, 2023),\13\ an LEA must periodically, but no less 
frequently than every six months, review and, as appropriate, revise 
its plan. Consistent with section 2001(i)(2) of the ARP Act, which 
requires an LEA to seek public comment on the development of its plan, 
an LEA must seek public input and take such input into account in 
determining whether to revise its plan and, if it determines revisions 
are necessary, on the revisions it makes to its plan, i.e., the LEA 
must seek public input on whether to revise its plan and on any 
revisions to its plan no less frequently than every six months (taking 
into consideration the timing of significant changes to CDC guidance on 
reopening schools). The requirement clarifies that, if the LEA revises 
its plan, the revised plan must address each of the aspects of safety 
currently recommended by the CDC or, if the CDC has updated its safety 
recommendations at the time the LEA is revising its plan, each of the 
updated safety recommendations. The requirement also clarifies that an 
LEA that developed a plan prior to enactment of the ARP Act that meets 
the requirements under section 2001(i)(1) and (2) of the ARP Act but 
does not address each of the required aspects of safety established in 
this requirement must, as part of the required periodic review, revise 
its plan consistent with these requirements no later than six months 
after it last reviewed its plan.
---------------------------------------------------------------------------

    \13\ ARP ESSER funds are subject to the Tydings amendment in 
section 421(b) of the General Education Provisions Act, 20 U.S.C. 
1225(b), and are therefore available to SEAs and LEAs for obligation 
through September 30, 2024. Review and revisions, if necessary, are 
not required during the Tydings period.
---------------------------------------------------------------------------

    Fourth, under the requirement, the plans must be: In an 
understandable and uniform format; to the extent practicable, written 
in a language that parents can understand or, if not practicable, 
orally translated; and upon request by a parent who is an individual 
with a disability, provided in an alternative format accessible to that 
parent.
    Reasons: The statutory requirements for each LEA to develop a plan 
for the safe return to in-person instruction and continuity of 
services, to seek and incorporate public comment on the plan, and to 
make the plan publicly available are important for planning and 
transparency as LEAs work to return to, or continue, the safe operation 
of in-person instruction. However, the statute does not explicitly 
define what it means for a plan to provide for a safe return to and 
continuity of in-person instruction.
    Because safe return to and continuity of in-person instruction is 
fundamental to addressing the lost instructional time and disengagement 
that many students have experienced during the COVID-19 pandemic, it is 
essential that these plans contain precise information about how LEAs 
will focus on prevention and mitigation of COVID-19 specific to their 
communities, in order to keep students, staff, and families healthy and 
to avoid future shutdowns. To ensure that each plan contains a 
sufficient level of specificity, the requirement sets forth several 
aspects of safety that each LEA plan must address.\14\ These elements 
are consistent with current, relevant guidance from the CDC related to 
the safe reopening of schools.\15\ The requirement does not mandate 
that an LEA adopt the CDC guidance, but only requires that the LEA 
describe in its plan the extent to which it has adopted the key 
prevention and mitigation strategies identified in the guidance. The 
requirement also ensures that each plan will specifically address how 
it will continue to provide services that meet student and staff needs. 
Section 2001(i) of the ARP Act requires that the plan address 
``continuity of services,'' but does not specifically identify those 
services. The requirement clarifies that, in addition to meeting 
academic needs, the plan must also address how the LEA will continue to 
provide services to meet students' academic needs and students' and 
staff social, emotional, mental health, and other needs through, for 
example, continuing to provide students meals and access to medical 
services. According to the National School Lunch Program, before COVID-
19, schools provided free or reduced-priced lunches to approximately 22 
million students each day.\16\ This is just one example of the many 
essential services that schools provide. For this reason, the 
requirement ensures that each LEA separately addresses continuity of 
services as a discrete prong of the plan.
---------------------------------------------------------------------------

    \14\ As described above, each plan must address: Universal and 
correct wearing of masks; modifying facilities to allow for physical 
distancing (e.g., use of cohorts/podding); handwashing and 
respiratory etiquette; cleaning and maintaining healthy facilities, 
including improving ventilation; contact tracing in combination with 
isolation and quarantine, in collaboration with the State, local, 
territorial, or Tribal health departments; diagnostic and screening 
testing; efforts to provide vaccinations to school communities; 
appropriate accommodations for children with disabilities with 
respect to health and safety policies; and coordination with State 
and local health officials.
    \15\ https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/operation-strategy.html.
    \16\ ED COVID-19 Handbook Vol. 2, Roadmap to Reopening Safely 
and Meeting All Students' Needs, page 8, available at: https://www2.ed.gov/documents/coronavirus/reopening-2.pdf.
---------------------------------------------------------------------------

    The statute does not explicitly specify when or how often an LEA's 
plan must be reviewed and revised. To help an LEA adapt to the 
constantly evolving status of the COVID-19 pandemic, the requirement 
mandates that, during the period of the grant, an LEA review its plan 
at least every six months (taking into consideration the timing of 
significant changes to CDC guidance on reopening schools), and seek 
public input in determining whether, and what, revisions are necessary. 
The requirements also make clear that a revised plan must continue to 
address safety recommendations from the CDC, which must include updated 
CDC guidance, to ensure that the plans continue to provide useful 
information that addresses the most up-to-date research on COVID-19 
prevention and mitigation. This requirement will also ensure that an 
LEA that developed a safe return to in-person instruction and 
continuity of services plan prior to enactment of the ARP Act and the 
requirement will, at least within six months of receipt of its grant, 
revise, as

[[Page 21201]]

necessary, and post its plan so that it addresses all of the safety 
recommendations included in the requirement.
    The rationale for requiring that LEA plans for the safe return to 
in-person instruction and continuity of services be accessible, 
including to parents with limited English proficiency and individuals 
with disabilities, is described above with respect to the same 
requirement as it applies to LEA ARP ESSER plans.
    Interim Final Requirements: The Secretary establishes the following 
interim final requirements for the ARP ESSER Fund.
    (1) SEA Consultation with Stakeholders; Public Input. An SEA 
receiving ARP ESSER funds must, in the development of its ARP ESSER 
plan--
    (a) Engage in meaningful consultation with stakeholders, including, 
but not limited to, students; families; Tribes (if applicable); civil 
rights organizations (including disability rights organizations); 
school and district administrators (including special education 
administrators); superintendents; charter school leaders (if 
applicable); teachers, principals, school leaders, other educators, 
school staff, and their unions; and stakeholders representing the 
interests of children with disabilities, English learners, children 
experiencing homelessness, children in foster care, migratory students, 
children who are incarcerated, and other underserved students;
    (b) Provide the public the opportunity to provide input and take 
such input into account; and
    (c) To facilitate consultation on its ARP ESSER plan and ongoing 
communication with the public, make information publicly available on 
its website as soon as possible but no later than June 21, 2021, and 
regularly provide updated available information on its website, on--
    (i) The numbers of schools in the State providing each mode of 
instruction (i.e., fully remote or online-only instruction, both 
remote/online instruction and in-person instruction (hybrid model), and 
full-time in-person instruction); and
    (ii) Student enrollment data and, to the extent available, student 
attendance data for all students and disaggregated by students from 
low-income families, students from each racial and ethnic group, 
gender, English learners, children with disabilities, children 
experiencing homelessness, children in foster care, and migratory 
students for each mode of instruction listed in paragraph (i).
    (2) LEA ARP ESSER Plan.
    (a) Each LEA that receives ARP ESSER funds must submit to the SEA, 
in such manner and within a reasonable timeline as determined by the 
SEA, a plan that contains any information reasonably required by the 
SEA. The plan, and any revisions to the plan submitted consistent with 
procedures established by the SEA, must describe--
    (i) The extent to which and how the funds will be used to implement 
prevention and mitigation strategies that are, to the greatest extent 
practicable, consistent with the most recent CDC guidance on reopening 
schools, in order to continuously and safely open and operate schools 
for in-person learning;
    (ii) How the LEA will use the funds it reserves under section 
2001(e)(1) of the ARP Act to address the academic impact of lost 
instructional time \17\ through the implementation of evidence-based 
interventions, such as summer learning or summer enrichment, extended 
day, comprehensive afterschool programs, or extended school year 
programs;
---------------------------------------------------------------------------

    \17\ ``Academic impact of lost instructional time'' has the same 
meaning as ``learning loss,'' which is the term that is used in 
section 2001 of the ARP Act.
---------------------------------------------------------------------------

    (iii) How the LEA will spend its remaining ARP ESSER funds 
consistent with section 2001(e) of the ARP Act; and
    (iv) How the LEA will ensure that the interventions it 
implements,including but not limited to the interventions under section 
2001(e)(1) of the ARP Act to address the academic impact of lost 
instructional time, will respond to the academic, social, emotional, 
and mental health needs of all students, and particularly those 
students disproportionately impacted by the COVID-19 pandemic, 
including students from low-income families, students of color, English 
learners, children with disabilities, students experiencing 
homelessness, children in foster care, and migratory students.
    (b) In developing its ARP ESSER plan, an LEA must--
    (i) Engage in meaningful consultation--
    (A) With stakeholders, including: Students; families; school and 
district administrators (including special education administrators); 
and teachers, principals, school leaders, other educators, school 
staff, and their unions; and
    (B) To the extent present in or served by the LEA: Tribes; civil 
rights organizations (including disability rights organizations); and 
stakeholders representing the interests of children with disabilities, 
English learners, children experiencing homelessness, children in 
foster care, migratory students, children who are incarcerated, and 
other underserved students; and
    (ii) Provide the public the opportunity to provide input and take 
such input into account.
    (c) An LEA's ARP ESSER plan must be--
    (i) In an understandable and uniform format;
    (ii) To the extent practicable, written in a language that parents 
can understand or, if it is not practicable to provide written 
translations to a parent with limited English proficiency, be orally 
translated for such parent;
    (iii) Upon request by a parent who is an individual with a 
disability as defined by the ADA, provided in an alternative format 
accessible to that parent; and
    (iv) Be made publicly available on the LEA's website.
    (3) LEA Plan for Safe Return to In-Person Instruction and 
Continuity of Services.
    (a) An LEA must describe in its plan under section 2001(i)(1) of 
the ARP Act for the safe return to in-person instruction and continuity 
of services--
    (i) how it will maintain the health and safety of students, 
educators, and other staff and the extent to which it has adopted 
policies, and a description of any such policies, on each of the 
following safety recommendations established by the CDC:
    (A) Universal and correct wearing of masks.
    (B) Modifying facilities to allow for physical distancing (e.g., 
use of cohorts/podding).
    (C) Handwashing and respiratory etiquette.
    (D) Cleaning and maintaining healthy facilities, including 
improving ventilation.
    (E) Contact tracing in combination with isolation and quarantine, 
in collaboration with the State, local, territorial, or Tribal health 
departments.
    (F) Diagnostic and screening testing.
    (G) Efforts to provide vaccinations to school communities.
    (H) Appropriate accommodations for children with disabilities with 
respect to health and safety policies.
    (I) Coordination with State and local health officials.
    (ii) how it will ensure continuity of services, including but not 
limited to services to address students' academic needs and students' 
and staff social, emotional, mental health, and other needs, which may 
include student health and food services.
    (b)(i) During the period of the ARP ESSER award established in 
section

[[Page 21202]]

2001(a) of the ARP Act, an LEA must regularly, but no less frequently 
than every six months (taking into consideration the timing of 
significant changes to CDC guidance on reopening schools), review and, 
as appropriate, revise its plan for the safe return to in-person 
instruction and continuity of services.
    (ii) In determining whether revisions are necessary, and in making 
any revisions, the LEA must seek public input and take such input into 
account.
    (iii) If at the time the LEA revises its plan the CDC has updated 
its guidance on reopening schools, the revised plan must address the 
extent to which the LEA has adopted policies, and describe any such 
policies, for each of the updated safety recommendations.
    (c) If an LEA developed a plan prior to enactment of the ARP Act 
that meets the statutory requirements of section 2001(i)(1) and (2) of 
the ARP Act but does not address all the requirements in paragraph (a), 
the LEA must, pursuant to paragraph (b), revise and post its plan no 
later than six months after receiving its ARP ESSER funds to meet the 
requirements in paragraph (a).
    (d) An LEA's plan under section 2001(i)(1) of the ARP Act for the 
safe return to in-person instruction and continuity of services must 
be--
    (i) In an understandable and uniform format;
    (ii) To the extent practicable, written in a language that parents 
can understand or, if it is not practicable to provide written 
translations to a parent with limited English proficiency, be orally 
translated for such parent; and
    (iii) Upon request by a parent who is an individual with a 
disability as defined by the ADA, provided in an alternative format 
accessible to that parent.

Waiver of Notice and Comment Rulemaking and Delayed Effective Date

    Under the Administrative Procedure Act (``APA'') (5 U.S.C. 551-
559), the Department generally offers interested parties notice of and 
the opportunity to comment on proposed requirements. However, the APA 
provides that an agency is not required to conduct notice and comment 
rulemaking ``when the agency for good cause finds . . . that notice and 
public procedure thereon are impracticable, unnecessary, or contrary to 
the public interest.'' 5 U.S.C. 553(b)(B). Here, there is good cause to 
waive notice and comment rulemaking. The requirements in this notice 
are critical to ensuring that SEAs and LEAs urgently and effectively 
develop plans to use the ARP ESSER resources that reflect a full 
understanding of student needs and support a strong response to those 
needs. In addition, to ensure an effective and sustained return to in-
person instruction, it is imperative that LEA return to in-person 
instruction plans address specific areas of safety and are adjusted as 
needed in response to evolving COVID-19 pandemic circumstances. 
However, going through the full rulemaking process would delay an SEA's 
ability to submit a plan for its remaining ARP ESSER funds, which are 
emergency funds intended to meet the immediate needs of students, 
educators, staff, schools, LEAs, and SEAs. Notice and comment 
rulemaking would be contrary to the public interest because the time 
involved would preclude emergency funds being available to meet exigent 
need for summer learning and effective, timely planning for the 
upcoming school year, both of which are critical to mitigate and 
prevent the continued impact of lost instructional time as well as to 
meet academic, social, and emotional needs. Nonetheless, the Department 
is issuing interim final requirements instead of final requirements to 
allow the members of the public to provide their input about the 
content of the requirements.
    The COVID-19 pandemic continues to present extraordinary 
circumstances, including widespread school closures, significant loss 
of instructional time, and trauma for students, educators, and other 
staff. Various provisions of section 2001 of the ARP Act describe the 
emergency caused by the COVID-19 pandemic and encourage quick dispersal 
of ARP ESSER funds. Establishing these interim final requirements now, 
without the delay of notice and comment rulemaking, enables SEAs and 
LEAs to effectively use ARP ESSER funds to address the immediate 
safety, academic, social, and emotional needs of students and help 
schools safely return to or continue in-person instruction.
    The APA also requires that regulations be published at least 30 
days before their effective date, unless the agency has good cause to 
implement its regulations sooner (5 U.S.C. 553(d)(3)). Again, because 
the ARP ESSER funds are needed to address the immediate needs of 
students, educators, schools, LEAs, and SEAs due to the COVID-19 
pandemic, the Secretary also has good cause to waive the 30-day delay 
in the effective date of these requirements under 5 U.S.C. 553(d)(3).

Executive Orders 12866 and 13563

Regulatory Impact Analysis

    Under Executive Order 12866, the Office of Management and Budget 
(``OMB'') must determine whether this regulatory action is 
``significant'' and, therefore, subject to the requirements of the 
Executive order and subject to review by OMB. Section 3(f) of Executive 
Order 12866 defines a significant regulatory action as an action likely 
to result in a rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy; productivity; competition; 
jobs; the environment; public health or safety; or State, local, or 
Tribal governments or communities in a material way (also referred to 
as ``economically significant'' regulations);
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    This regulatory action is an economically significant regulatory 
action subject to review by OMB under section 3(f) of Executive Order 
12866.
    Pursuant to section 804(2) of the Congressional Review Act (5 
U.S.C. 804(2)), the Office of Information and Regulatory Affairs 
designated this rule as a ``major rule.''
    We have also reviewed these regulations under Executive Order 
13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, section 1(b) of 
Executive Order 13563 requires that an agency--
    (1) Propose or adopt regulations only upon a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives taking into account, 
among other things, and to the extent practicable, the costs of 
cumulative regulations;
    (3) Select, in choosing among alternative regulatory approaches, 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and

[[Page 21203]]

    (5) Identify and assess available alternatives to direct 
regulation, including providing economic incentives--such as user fees 
or marketable permits--to encourage the desired behavior, or providing 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' \18\ The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.'' \19\
---------------------------------------------------------------------------

    \18\ Executive Order 13563, section 1(c).
    \19\ U.S. Office of Management and Budget (2011, Feb. 2). 
Memorandum for the Heads of Executive Departments and Agencies and 
of Independent Regulatory Agencies on Executive Order 13563, 
``Improving Regulation and Regulatory Review''. Office of 
Information and Regulatory Affairs. Washington, DC.
---------------------------------------------------------------------------

    The Department has assessed the potential costs and benefits, both 
quantitative and qualitative, of this regulatory action, and we are 
issuing these interim final requirements only on a reasoned 
determination that their benefits justify their costs. In choosing 
among alternative regulatory approaches, we selected those approaches 
that would maximize net benefits. Based on the analysis that follows 
and the reasons stated elsewhere in this document, the Department 
believes that the interim final requirements are consistent with the 
principles set forth in Executive Order 13563.
    We also have determined that this regulatory action does not unduly 
interfere with State, local, or Tribal governments in the exercise of 
their governmental functions.
    In this regulatory impact analysis, we discuss the need for 
regulatory action, the potential costs and benefits, and the net budget 
impacts.
    Elsewhere, under Paperwork Reduction Act of 1995, we identify and 
explain burdens specifically associated with information collection 
requirements.

Need for Regulatory Action and Analysis of Benefits

    These interim final requirements are intended to provide two 
critical benefits: State and local plans under the ARP ESSER program 
that are informed by and meaningfully address the academic, social, 
emotional, and mental health needs of our Nation's students, 
particularly those students disproportionately impacted by the COVID-19 
pandemic; and local plans required under the ARP Act that effectively 
guide a safe return to in-person instruction and ensure continuity of 
services during and after the COVID-19 pandemic. As discussed elsewhere 
in this document, the ARP ESSER program provides significant resources 
to SEAs and LEAs to respond to the unprecedented educational 
disruptions caused by the COVID-19 pandemic. The Department believes 
this regulatory action is needed to ensure that the plans SEAs and LEAs 
develop to use these resources reflect a full understanding of student 
needs and support a strong, urgent response to these pressing needs. In 
addition, to ensure an effective and sustained return to in-person 
instruction, it is imperative that LEA plans address specific areas of 
safety and adjust as needed in response to evolving COVID-19 pandemic 
circumstances.

Analysis of Costs

    This regulatory action establishes interim final requirements for 
an SEA to meaningfully consult with various stakeholder groups on its 
ARP ESSER plan, give the public an opportunity to provide input on the 
development of the plan, and facilitate consultation and public input 
by publishing and regularly updating information on school modes of 
instruction and student enrollment and, to the extent available, 
attendance. It also requires an LEA receiving ARP ESSER funds to 
develop and make publicly available a plan for the use of those funds; 
meaningfully consult with stakeholders and consider public input in 
developing its plan; and make its plan accessible, including to parents 
with limited English proficiency and individuals with disabilities. 
Finally, with respect to the LEA plan for the safe return to in-person 
instruction and continuity of services required under section 2001(i) 
of the ARP Act, this action specifies what the plan must address; 
requires periodic review and, when needed, revision of the plan, with 
consideration of public input in each case, to ensure it meets 
statutory and regulatory requirements and remains relevant to the needs 
of schools; and requires that the plan be accessible, including to 
parents with limited English proficiency and individuals with 
disabilities. We estimate the costs of complying with these interim 
final requirements in the paragraphs that follow. Throughout, we use 
mean wages for Education and Childcare Administrators \20\ to monetize 
costs associated with SEA and LEA staff time, and we assume that the 
total dollar value of labor, including overhead and benefits, is equal 
to 200 percent of the wage rate.
---------------------------------------------------------------------------

    \20\ See https://www.bls.gov/oes/2020/may/oes_nat.html.
---------------------------------------------------------------------------

    SEAs and LEAs may use ARP ESSER funds to defray costs associated 
with these interim final requirements, including funds that an SEA 
reserves for administration under section 2001(f)(4) of the ARP Act.

SEA Consultation With Stakeholders; Public Input

    The Department expects that SEAs generally will rely on previously 
established procedures for consulting with stakeholders and considering 
public input and that any burden in adapting those procedures to comply 
with these interim final requirements for ARP ESSER plans would be 
negligible. We estimate that, in implementing its procedures, an SEA 
will need, on average, 80 staff-hours to engage in meaningful 
consultation with identified stakeholder groups and 40 staff-hours to 
consider public input, for a total estimated average of 120 staff-
hours. At $97.28 per SEA staff-hour, the average estimated cost to 
comply with the requirements is approximately $12,000. For 52 SEAs 
(including the District of Columbia and the Commonwealth of Puerto 
Rico), the total estimated cost is $607,000.
    Under the interim final requirements, an SEA must facilitate 
consultation with stakeholders and ongoing communication with the 
public by posting on its website information on the number of schools 
in the State providing different modes of instruction and on student 
enrollment and (if available) attendance, and it must update such 
information regularly. We expect that SEAs generally possess much of 
this information and estimate that the average SEA will need 100 hours 
to comply with the facilitation requirement, including initial posting 
and six updates. At $97.28 per SEA staff-hour, the average estimated 
cost to comply with the requirements is approximately $9,700. For 52 
SEAs, the total estimated cost is $505,900.

LEA ARP ESSER Plans

    Under the interim final requirements, an LEA must develop an ARP 
ESSER plan that describes, at a minimum, how the LEA will use ARP ESSER 
funds to implement prevention and mitigation strategies in school 
opening and operations, address the academic impact

[[Page 21204]]

of lost instructional time, carry out other allowable activities, and 
identify and meet student needs resulting from the COVID-19 pandemic. 
The Department expects that the majority of LEAs have already devoted 
significant time and resources toward identifying activities that are 
responsive to these requirements and that, for these LEAs, the burden 
associated with ARP ESSER plan development would consist primarily in 
determining how best to use ARP ESSER funds for these purposes. We 
estimate that an LEA will need, on average, 40 staff-hours (exclusive 
of time to consult with stakeholders and consider public input, which 
is estimated in the following paragraph) to develop an ARP ESSER plan 
that meets the requirements and to make its plan publicly available. At 
$97.28 per LEA staff-hour, the average estimated cost to comply with 
the ARP ESSER plan development requirement is approximately $3,900. For 
an estimated 15,000 LEAs receiving ARP ESSER funds, the total estimated 
cost is $58,368,000.
    We anticipate that, as with SEAs, LEAs receiving ARP ESSER funds 
largely will use existing processes for stakeholder consultation and 
public input and that any adaptations of those processes for purposes 
of the final requirement would impose minimal burden. The Department 
estimates that, in carrying out its process, an LEA will need, on 
average, 30 staff-hours to engage in meaningful consultation with 
identified stakeholder groups and consider public input. At $97.28 per 
LEA staff-hour, the average estimated cost to comply with the 
requirement is approximately $2,900. For an estimated 15,000 LEAs 
receiving ARP ESSER funds, the total estimated cost for stakeholder 
consultation and public input is $43,776,000.
    Finally, we estimate that an LEA will need an average of 10 hours 
to comply with the requirement that its ARP ESSER plan be accessible, 
including to parents with limited English proficiency and individuals 
with disabilities. At $97.28 per LEA staff-hour, the average estimated 
cost to comply with the requirement is approximately $1,000. For an 
estimated 15,000 LEAs receiving ARP ESSER funds, the total estimated 
cost is $14,592,000.

LEA Plan for Safe Return to In-Person Instruction and Continuity of 
Services

    The Department believes that the majority of LEAs developed plans 
for the safe return to in-person instruction and continuity of services 
prior to enactment of the ARP Act. We estimate that one-third of LEAs 
receiving ARP ESSER funds, or an estimated 5,000 LEAs, will need to 
develop or revise such plans to meet statutory and regulatory 
requirements, using an average of 40 staff-hours. At $97.28 per LEA 
staff-hour, the average estimated cost for complying with the 
requirements is approximately $3,900, and the total estimated cost is 
$19,456,000.
    Under these interim final requirements, an LEA must review its plan 
at least every six months, revise its plan as needed, and consider 
public input in plan review and revision. Assuming LEAs implement their 
plans through Fiscal Year 2023, an LEA will need to review its plan a 
minimum of five times--more specifically, at least once in Fiscal Year 
2021 and twice in each of Fiscal Years 2022 and 2023--to meet the plan 
review requirement. We estimate that each review, including 
consideration of public input using customary methods, will require an 
average of 10 staff-hours, for a total average of 50 staff-hours. 
Further, we estimate that the average LEA will revise its plan once and 
require an average of 20 staff-hours for plan revision, including 
consideration of public input. The total average estimated staff-hours 
for complying with plan review and revision requirements is 70 staff-
hours, and at $97.28 per LEA staff-hour, the average estimated cost is 
approximately $6,800. For an estimated 15,000 LEAs receiving ARP ESSER 
funds, the total estimated cost for complying with the plan review and 
revision requirements is $102,144,000.
    Finally, we estimate that an LEA will need an average of 15 hours 
to comply with the requirement that its plan (including revisions) for 
the safe return to in-person instruction and continuity of services be 
accessible, including to parents with limited English proficiency and 
individuals with disabilities. At $97.28 per LEA staff-hour, the 
average estimated cost to comply with the requirement is approximately 
$1,500. For an estimated 15,000 LEAs receiving ARP ESSER funds, the 
total estimated cost is $21,888,000.

Net Budget Impacts

    We estimate that the discretionary elements of these interim final 
requirements will not have an impact on the Federal budget. This 
regulatory action establishes requirements for SEAs and LEAs receiving 
ARP ESSER funds but does not affect the amount of funding available for 
this program. We anticipate that the nearly $122 billion in ARP ESSER 
funds will be disbursed in Fiscal Year 2021, and therefore estimate 
$122 billion in transfers in Fiscal Year 2021 relative to a pre-
statutory baseline.

Accounting Statement

        Accounting Statement: Classification of Estimated Impacts
                              [In millions]
------------------------------------------------------------------------
                        Category                             Benefits
------------------------------------------------------------------------
SEA and LEA ARP ESSER plans that are informed by and      Not Quantified
 successfully address student needs.....................
LEA plans that ensure a safe return to in-person          Not Quantified
 instruction and continuity of services.................
------------------------------------------------------------------------
                                                               Costs
------------------------------------------------------------------------
SEA consultation with stakeholders; public input........            $1.1
LEA plan for use of ARP ESSER funds.....................            $117
LEA plan for safe return to in-person instruction and               $143
 continuity of services.................................
------------------------------------------------------------------------
                                                             Transfers
------------------------------------------------------------------------
Activities to help safely reopen and sustain the safe           $121,975
 operation of schools and address the impact of the
 coronavirus pandemic on the Nation's students..........
------------------------------------------------------------------------


[[Page 21205]]

Regulatory Flexibility Act Certification

    The Regulatory Flexibility Act does not apply to this rulemaking 
because there is good cause to waive notice-and-comment rulemaking 
under the Administrative Procedure Act (5 U.S.C. 553).

Clarity of the Regulations

    Executive Order 12866 and the Presidential Memorandum ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.
    The Secretary invites comments on how to make these regulations 
easier to understand, including answers to questions such as the 
following:
     Are the requirements in the interim final requirements 
clearly stated?
     Do the interim final requirements contain technical terms 
or other wording that interferes with their clarity?
     Does the format of the interim final requirements 
(grouping and order of sections, use of headings, paragraphing, etc.) 
aid or reduce their clarity?
     Would the interim final requirements be easier to 
understand if we divided them into more (but shorter) sections?
     Could the description of the interim final requirements in 
the SUPPLEMENTARY INFORMATION section of this preamble be more helpful 
in making the requirements easier to understand? If so, how?
     What else could we do to make the interim final 
requirements easier to understand?
    To send any comments that concern how the Department could make 
these interim final requirements easier to understand, see the 
instructions in the ADDRESSES section.

Paperwork Reduction Act of 1995

    As part of its continuing effort to reduce paperwork and respondent 
burden, the Department provides the general public and Federal agencies 
with an opportunity to comment on proposed and continuing collections 
of information in accordance with the Paperwork Reduction Act of 1995 
(``PRA'') (44 U.S.C. 3501 et seq.). This helps ensure that the public 
understands the Department's collection instructions, respondents 
provide the requested data in the desired format, reporting burden 
(time and financial resources) is minimized, collection instruments are 
clearly understood, and the Department can properly assess the impact 
of collection requirements on respondents.
    A Federal agency may not conduct or sponsor a collection of 
information unless OMB approves the collection under the PRA and the 
corresponding information collection instrument displays a currently 
valid OMB control number. Notwithstanding any other provision of the 
law, no person is required to comply with, or is subject to penalty for 
failure to comply with, a collection of information if the collection 
instrument does not display a currently-valid OMB control number.
    As discussed in the Analysis of Costs and Benefits section of the 
Regulatory Impact Statement, this regulatory action establishes interim 
final requirements for an SEA to meaningfully consult with various 
stakeholder groups on its ARP ESSER plan and to give the public an 
opportunity to provide input on the development of the plan. It also 
requires an LEA receiving ARP ESSER funds to develop and make publicly 
available a plan for the use of those funds; meaningfully consult with 
stakeholders and consider public input in developing its plan; and make 
its plan accessible, including to parents with limited English 
proficiency and parents with a disability. Finally, with respect to the 
LEA plan for the safe return to in-person instruction and continuity of 
services required under section 2001(i) of the ARP Act, this action 
specifies what the plan must address; requires periodic review and, 
when needed, revision of the plan, with consideration of public input 
in each case, to ensure it meets statutory and regulatory requirements 
and remains relevant to the needs of schools; and requires that the 
plan be accessible, including to parents with limited English 
proficiency and parents with disabilities. We estimate the costs and 
burden hours associated with complying with these interim final 
requirements in the paragraphs that follow. The estimates below for the 
costs and burden hours are the same as the costs and staff-hours 
discussed in the Regulatory Impact Statement unless otherwise noted. 
Differences between the estimates in the Regulatory Impact Statement 
and this section are due to differences in calculating the net impact 
and annual impact of these requirements.
    In the notice of final requirements, we will display the control 
number assigned by OMB to any information collection activities 
proposed in these interim final requirements and adopted in the notice 
of final requirements.
    For SEA consultation with stakeholders and seeking public input, we 
estimate that an SEA will need, on average, 80 staff-hours to engage in 
meaningful consultation with identified stakeholder groups and 40 
staff-hours to consider public input, for a total estimated average of 
120 staff-hours. At $97.28 per SEA staff-hour, the average estimated 
cost to comply with the requirements is approximately $12,000. For 52 
SEAs (including for the District of Columbia and the Commonwealth of 
Puerto Rico), the total estimated cost is $607,000, and the total 
estimated burden is 6,240 hours.
    Under the interim final requirements, an SEA must facilitate 
consultation with stakeholders and ongoing communication with the 
public by posting on its website information on the number of schools 
in the State providing different modes of instruction and on student 
enrollment and (if available) attendance, and it must update such 
information regularly. We expect that SEAs generally possess much of 
this information and estimate that an SEA will need, on average, 33 
hours to comply with the facilitation requirement, including 
information updates. At $97.28 per SEA staff-hour, the average 
estimated cost to comply with the requirements is approximately $3,200. 
For 52 SEAs, the total estimated cost is $166,800 and the total burden 
is 1,716 hours. This estimate differs from the estimate in the 
Regulatory Impact Statement due to calculating the annual impact, 
rather than the net impact.
    We estimate that an LEA will need, on average, 40 staff-hours to 
develop an ARP ESSER plan that meets the requirements and to make its 
plan publicly available. At $97.28 per LEA staff-hour, the average 
estimated cost to comply with the ARP ESSER plan development 
requirement is approximately $3,900. For an estimated 15,000 LEAs 
receiving ARP ESSER funds, the total estimated cost is $58,368,000, and 
the total burden is 600,000 hours.
    For LEA consultation with stakeholders and seeking public input, we 
estimate that an LEA will need, on average, 30 staff-hours to engage in 
meaningful consultation with identified stakeholder groups and to 
consider public input, for a total of 30 staff-hours. At $97.28 per LEA 
staff-hour, the average estimated cost to comply with the requirement 
is $3,900. For an estimated 15,000 LEAs receiving ARP ESSER funds, the 
total estimated cost is $43,776,000, and the total estimated burden is 
450,000 hours. We estimate that an LEA will need an average of 10 hours 
to comply with the requirement that its ARP ESSER plan be accessible, 
including to parents with limited English proficiency and individuals 
with disabilities. At $97.28 per LEA staff-hour, the average estimated 
cost to comply with the requirement is approximately $1,000. For an 
estimated

[[Page 21206]]

15,000 LEAs receiving ARP ESSER funds, the total estimated cost is 
$14,592,000, and the total estimated burden is 150,000 hours.
    We estimate that 5,000 LEAs will need to develop or revise safe 
return to in-person instruction and continuity of services plans to 
meet statutory and regulatory requirements, using an average of 40 
staff-hours. At $97.28 per LEA staff-hour, the average estimated cost 
for complying with the requirements is $3,900. The total estimated cost 
is $19,456,000, and the total estimated burden is 200,000 hours.
    Under these interim final requirements, an LEA must review its plan 
at least every 6 months, revise its plan as needed, and consider public 
input in the review and revision. Under these interim final 
requirements, an LEA will need to review its plan twice per year. We 
estimate that each review will require an average of 15 staff-hours for 
a total burden of 30 hours per year. We estimate that the average LEA 
will revise its plan once over the course of the next three years and 
require an average of 20 staff-hours for plan revision, an average of 7 
burden hours per year. The total average estimated staff-hours for 
complying with plan review and revision requirements is 27 staff-hours 
annually, and at $97.28 per LEA staff-hour, the average estimated cost 
is $2,600. For an estimated 15,000 LEAs receiving ARP ESSER funds, the 
total estimated cost for complying with the plan review and revision 
requirements is $39,398,000, and we estimate a total burden of 405,000 
hours. This estimate differs from the estimate in the Regulatory Impact 
Statement due to calculating the annual impact, rather than the net 
impact.
    Finally, we estimate that an LEA will need an average of 15 hours 
to comply with the requirement that its plan for the safe return to in-
person instruction and continuity of services be accessible, including 
to parents with limited English proficiency and individuals with 
disabilities. At $97.28 per LEA staff-hour, the average estimated cost 
to comply with the requirement is approximately $1,500. For an 
estimated 15,000 LEAs receiving ARP ESSER funds, the total estimated 
cost is $21,888,000, and we estimate a total burden of 225,000 hours.
    Collectively, we estimate that these new information collection 
activities will result in a total estimated cost of $198,791,800 and a 
total estimated burden of 2,037,956 hours to the public annually. The 
Department is requesting an emergency paperwork clearance from OMB on 
the data collections associated with these interim final requirements.
    We must receive your comments on the collection activities 
contained in these interim final requirements on or before [INSERT DATE 
30 DAYS FROM THE DATE OF PUBLICATION IN THE FEDERAL REGISTER]. Comments 
related to the information collection activities must be submitted 
electronically through the Federal eRulemaking Portal at 
www.regulations.gov by selecting the Docket ID number ED-2021-OESE-0061 
or via postal mail, commercial delivery, or hand delivery by 
referencing the docket ID number and the title of the information 
collection request at the top of your comment. Comments submitted by 
postal mail or delivery should be addressed to the PRA Coordinator of 
the Strategic Collections and Clearance Governance and Strategy 
Division, U.S. Department of Education, 400 Maryland Ave. SW, LBJ, Room 
6W208D, Washington, DC 20202-8240.

    Note: The Office of Information and Regulatory Affairs in OMB 
and the Department review all comments related to the information 
collection activities posted at www.regulations.gov.

    We consider your comments on these proposed collection activities 
in--
     Deciding whether the proposed collection activities are 
necessary for the proper performance of our functions, including 
whether the information will have practical use;
     Evaluating the accuracy of our estimate of the burden of 
the proposed collection activities, including the validity of our 
methodology and assumptions;
     Enhancing the quality, usefulness, and clarity of the 
information we collect; and
     Minimizing the burden on those who must respond. This 
includes exploring the use of appropriate automated, electronic, 
mechanical, or other technological collection techniques.

                                            Collection of Information
----------------------------------------------------------------------------------------------------------------
                                                  Estimated                         Total      Estimated cost at
       Information collection activity             number         Hours per       estimated    an hourly rate of
                                                  responses       response      burden hours         $97.28
----------------------------------------------------------------------------------------------------------------
SEA Consultation with Public.................              52             120           6,240           $607,000
SEA Facilitation and Updates.................              52              33           1,716            166,800
LEA ARP ESSER Plan Creation..................          15,000              40         600,000         58,368,000
LEA Consultation with Public.................          15,000              30         450,000         43,776,000
LEA ARP ESSER Plan Accessibility.............          15,000              10         150,000         14,592,000
LEA Plan for Safe Return Creation............           5,000              40         200,000         19,456,000
LEA Safe Return Plan Review..................          15,000              27         405,000         39,938,000
LEA Plan for Safe Return Accessibility.......          15,000              15         225,000         21,888,000
                                              ------------------------------------------------------------------
    Annualized Total.........................          80,104             315       2,037,956        198,791,800
----------------------------------------------------------------------------------------------------------------

    In addition to the information collection activities that are a 
result of these interim final requirements, the Department is issuing 
an ARP ESSER State Plan application template that creates burden for 
the public. The content of the template is based on the ARP ESSER 
statute, in particular the required SEA and LEA set asides (see ARP 
sections 2001(e)(1) (LEA set aside) and (f)(1)-(3) (SEA set asides)), 
as well as the regulatory requirements in these interim final 
requirements. The estimated burden hours for completing the ARP ESSER 
State Plan application template are accounted for in a separate 
emergency information collection request to OMB.

Intergovernmental Review

    The ARP ESSER program is not subject to Executive Order 12372 and 
the regulations in 34 CFR part 79.
    Accessible Format: On request to the program contact person listed 
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities 
can obtain this document in an accessible format. The Department will 
provide the

[[Page 21207]]

requestor with an accessible format that may include Rich Text Format 
(``RTF'') or text format (``txt''), a thumb drive, an MP3 file, 
braille, large print, audiotape, compact disc, or other accessible 
format.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations at www.govinfo.gov. At this site you can view this 
document, as well as all other documents of this Department published 
in the Federal Register, in text or portable document format (``PDF''). 
To use PDF you must have Adobe Acrobat Reader, which is available free 
at the site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at: 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

Miguel Cardona,
Secretary of Education.
[FR Doc. 2021-08359 Filed 4-21-21; 8:45 am]
BILLING CODE 4000-01-P