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