[Federal Register Volume 86, Number 131 (Tuesday, July 13, 2021)]
[Rules and Regulations]
[Pages 36648-36656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14862]


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DEPARTMENT OF EDUCATION

34 CFR Chapter II

RIN 1810-AB63


American Rescue Plan Act Emergency Assistance to Non-Public 
Schools Program

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

ACTION: Final requirements.

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SUMMARY: The U.S. Department of Education (Department) establishes 
requirements for the American Rescue Plan Emergency Assistance to Non-
Public Schools (ARP EANS) program under the American Rescue Plan Act of 
2021 (ARP Act). This document is intended to clarify the requirements 
applicable to the ARP EANS program, including the requirement to 
provide services or assistance to non-public schools that enroll a 
significant percentage of students from low-income families and are 
most impacted by the novel Coronavirus Disease 2019 (COVID-19) 
emergency.

DATES: These final requirements are effective July 13, 2021.

FOR FURTHER INFORMATION CONTACT: Britt Jung, U.S. Department of 
Education, 400 Maryland Avenue SW, Washington, DC 20202. 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: 
    Purpose of Program: Section 2002 of the ARP Act, titled ``Emergency 
Assistance to Non-Public Schools,'' appropriates $2,750,000,000 for the 
Department to make allocations to Governors under the ARP EANS program 
``to provide services or assistance to non-public schools that enroll a 
significant percentage of [students from low-income families] and are 
most impacted by the [COVID-19] emergency.'' \1\
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    \1\ Under these final requirements, ``students from low-income 
families'' has the same meaning as ``low-income students'' under 
section 2002(a) of the ARP Act. ``Students from low-income 
families'' is a term used in section 312(d) of division M of the 
Coronavirus Response and Relief Supplemental Appropriations Act, 
2021.
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    Program Authority: ARP Act, Public Law 117-2, March 11, 2021.
    Background: The ARP Act extends the EANS program authorized under 
section 312(d) of division M of the Coronavirus Response and Relief 
Supplemental Appropriations Act, 2021 (CRRSA Act), with two exceptions: 
(1) A State educational agency (SEA) may only provide services or 
assistance under ARP EANS to non-public schools that enroll a 
significant percentage of students from low-income families and are 
most impacted by the COVID-19 emergency, and (2) an SEA may not use ARP 
EANS funds to provide reimbursements to any non-public school.
    Under the ARP EANS program, consistent with section 312(d)(1) of 
division M of the CRRSA Act, the Department will allot funds by formula 
to each Governor with an approved application based on the State's 
relative share of children aged 5 through 17 who are from families at 
or below 185 percent of the 2020 Federal poverty level and enrolled in 
non-public schools, as determined by the Department on the basis of 
non-public school enrollment data from the U.S. Census Bureau's 
American Community Survey (ACS) Public Use Microdata Sample (PUMS) for 
2015-2019, which can be accessed here: https://www.census.gov/programs-surveys/acs/microdata.html. The amount available to each State may be 
found at: https://oese.ed.gov/offices/education-stabilization-fund/emergency-assistance-non-public-schools/.
    As described in more detail below, the Secretary of Education 
(Secretary) is establishing final requirements for the ARP EANS program 
to (1) make clear that, with the exceptions noted above, the 
requirements of the EANS program authorized under section 312(d) of 
division M of the CRRSA Act (CRRSA EANS) apply to ARP EANS, and (2) 
establish guidelines to determine that a non-public school enrolls a 
significant percentage of students from low-income families and is most 
impacted by the COVID-19 emergency.
    Prior to issuing these final requirements, the Department invited 
comment regarding implementation of the requirement ``to provide 
services or assistance to non-public schools that enroll a significant 
percentage of [students from low-income families] and are most impacted 
by the [COVID-19] emergency'' as part of the Notice Inviting 
Applications and Announcing Allocations for the Emergency Assistance to 
Non-Public Schools Program Under the American Rescue Plan Act of 2021, 
issued on April 12, 2021.\2\ The Department received 66 comments, which 
it reviewed and considered in developing these final requirements.
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    \2\ https://oese.ed.gov/files/2021/04/FINAL-ARP-EANS-notice-4.12.21.pdf.
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    With respect to the significant poverty percentage, comments 
generally fell into three groups that advocated for: (1) Establishing a 
specific significant poverty percentage, as high as 75 percent; (2) 
prioritizing schools in the same manner as under the CRRSA EANS 
program; or (3) providing a State discretion to determine the 
significant poverty percentage for non-public schools within the State. 
Commenters advocating for a specific high poverty percentage did so on 
the premise that it would ensure that resources are targeted to the 
most under-resourced communities, which they assert is consistent with 
congressional intent. Multiple commenters noted that a 75-percent 
poverty percentage would align with the definition of a ``high-poverty 
school'' used by the National Center for Education Statistics and the 
threshold for serving public schools in rank order, without regard to 
grade spans, applicable to within-district allocations under title I, 
part A (title I) of the Elementary and Secondary Education Act of 1965 
(ESEA) (see section 1113(a)(3)(A) of the ESEA). By contrast, other 
commenters asserted that an

[[Page 36649]]

excessively rigorous, one-size-fits-all threshold would be 
inappropriate in the context of non-public schools and their States' 
specific circumstances and therefore recommended that States be given 
discretion to determine what constitutes a significant poverty 
percentage. In support of a more flexible approach, one State provided 
data indicating that a significant number of non-public schools that 
applied under CRRSA EANS would be ineligible under ARP EANS even with a 
poverty percentage as low as 30 percent. Taking these comments into 
account, the Department sought to establish a specific significant 
poverty percentage while also recognizing that there are State 
circumstances that may warrant a different significant poverty 
percentage in a given State.
    In terms of determining the non-public schools most impacted by the 
COVID-19 emergency, commenters generally noted that the Department's 
Frequently Asked Questions: Emergency Assistance to Non-Public Schools 
(EANS) Program as Authorized by the Coronavirus Response and Relief 
Supplemental Appropriations Act, 2021 (CRRSA Act) (EANS FAQs) \3\ 
provided an appropriate range of factors. The final requirements 
include a majority of the factors identified in the Department's 
previously issued EANS FAQs.
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    \3\ https://oese.ed.gov/files/2021/03/Final-EANS-FAQ-2.0-3.19.21.pdf.
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General Requirements

Applicability of CRRSA EANS Requirements

    Statute: Section 2002(a) of the ARP Act appropriates an additional 
$2,750,000,000 for making allocations to Governors under the EANS 
program to provide services or assistance to non-public schools that 
enroll a significant percentage of students from low-income families 
and are most impacted by the COVID-19 emergency. Section 2002(b) 
further clarifies that the funds provided under section 2002(a) may not 
be used to provide reimbursements to any non-public school.
    Final Requirements: These requirements make clear that all of the 
provisions of the CRRSA EANS program also apply to the ARP EANS program 
with two exceptions: (1) An SEA may provide services or assistance 
under ARP EANS only to an eligible non-public school that enrolls a 
significant percentage of students from low-income families and is most 
impacted by the COVID-19 emergency, and (2) an SEA may not use ARP EANS 
funds to provide reimbursements to a non-public school.
    Reasons: The final requirements clarify for States that, except for 
the two exceptions noted in the statute, all of the requirements in the 
CRRSA EANS program apply to ARP EANS funds. Making this clarification 
ensures that States and non-public schools are aware of all EANS 
program requirements, including statutory timelines, assurances 
required in a Governor's application, and other application 
requirements for both the Governor's and a non-public school's 
application. The final requirements also clarify the allowable services 
and activities that an SEA may provide to non-public schools. 
Significantly, they make clear that, unlike under CRRSA EANS, an SEA 
may not use ARP EANS funds to provide reimbursements to any non-public 
school.

Determining Non-Public Schools To Be Served

Determining Non-Public Schools That May Receive Services or Assistance

    Statute: Under section 2002(a) of the ARP Act, services or 
assistance to non-public schools under the ARP EANS program are limited 
to ``non-public schools that enroll a significant percentage of 
[students from low-income families] and are most impacted by the 
[COVID-19] emergency.''
    Final Requirements: The final requirements require a Governor, in 
his or her application for ARP EANS funds, to identify the significant 
poverty percentage and the factors of COVID-19 impact the State will 
use, after approval by the Secretary, to determine which non-public 
schools are eligible to receive services or assistance. In addition to 
meeting the definition of a non-public school in section 316(6) of 
division M of the CRRSA Act and the eligibility requirement in section 
312(d)(9) of division M of the CRRSA Act, a non-public school must meet 
or exceed the State's significant poverty percentage and be most 
impacted by the COVID-19 emergency.
    Reasons: This requirement clarifies those non-public schools that 
are eligible to receive services or assistance under the ARP EANS 
program. A non-public school must meet the definition of ``non-public 
school'' in section 316(6) of division M of the CRRSA Act and the 
eligibility requirement in section 312(d)(9) of division M of the CRRSA 
Act. In addition, the percentage of students from low-income families 
in the non-public school must meet or exceed either 40 percent or the 
State's approved alternate significant poverty percentage. Finally, the 
non-public school must be most impacted by the COVID-19 emergency based 
on the State's factor(s).
    The final requirements reflect nearly all the comments we received. 
They establish a specific significant poverty percentage that a State 
may adopt without further explanation, although that percentage is not 
as high as some commenters recommended for reasons discussed below. 
They also afford a State some discretion to propose an alternate 
significant poverty percentage based on circumstances within the State, 
as most commenters suggested. The final requirements do not, however, 
adopt the view of some commenters who suggested implementing ARP EANS 
in the same manner as CRRSA EANS to reduce burden on SEAs and non-
public schools. We believe the ARP Act does not support this 
suggestion, because it specifically changed the language in the CRRSA 
Act from ``prioritize services or assistance to non-public schools that 
enroll low-income students and are most impacted by the [COVID-19] 
emergency'' to ``provide services or assistance to non-public schools 
that enroll a significant percentage of low-income students and are 
most impacted by the [COVID-19] emergency.'' The ARP Act language 
differs from the CRRSA Act in two significant respects: (1) Rather than 
establishing a ``priority'' for serving schools with students from low-
income families that then permits other non-public schools to be 
served, the ARP Act requires a non-public school to enroll a percentage 
of students from low-income families, and (2) the ARP Act requires that 
poverty percentage to be ``significant.'' The final requirements 
reflect this change.

Enrollment of a Significant Percentage of Students From Low-Income 
Families

    Statute: Under section 2002(a) of the ARP Act, services or 
assistance to non-public schools under the ARP EANS program is limited 
to ``non-public schools that enroll a significant percentage of 
[students from low-income families] and are most impacted by the 
[COVID-19] emergency.''
    Final Requirements: Under the final requirements, a non-public 
school is considered to enroll a significant percentage of students 
from low-income families, as defined in these requirements, if the 
percentage of students from low-income families enrolled in the school 
meets or exceeds 40 percent, based on the data source(s) selected by 
the State under these requirements. Alternatively, a State may propose 
and, if approved by the

[[Page 36650]]

Secretary, use an alternate significant poverty percentage based on 
circumstances in the State, which may be (1) the State's average 
percentage of students from low-income families in public and non-
public schools, (2) the average percentage of students from low-income 
families in non-public schools in the State that, for example, applied 
for or participated in the CRRSA EANS program, or (3) other factors 
that the State demonstrates support an alternate significant poverty 
percentage.
    Reasons: A 40-percent poverty percentage has long been recognized 
as a measure of significant poverty to operate a schoolwide program 
under title I of the ESEA. In the context of title I, 40-percent 
poverty is the statutory threshold for a title I school to use title I 
funds to upgrade the entire educational program of a school and serve 
all students. (See section 1114(a)(1)(A) of the ESEA). Given Congress' 
recognition of 40 percent as significant within the context of title I, 
we believe it presents a reasonable threshold with respect to the ARP 
EANS program as well.
    We recognize, however, that there may be circumstances in the State 
that may warrant establishing a different significant percentage of 
students from low-income families for non-public schools. As a result, 
under the final requirements, a State has the option of using an 
alternate significant poverty percentage upon approval by the Secretary 
based on factors in the State. To receive approval, a State must 
provide data and a supporting rationale to justify the use of such 
alternative as part of its ARP EANS application.
    The final requirements permit a State to apply to use an alternate 
significant poverty percentage based on the State's average percentage 
of students from low-income families in both public and private 
schools. This option recognizes that the determination of what 
constitutes a significant poverty percentage may vary from State to 
State based on a particular State's relative level of poverty.
    The final requirements also allow a State to apply to use an 
alternate significant poverty percentage based on, for example, the 
average percentage of students from low-income families in non-public 
schools in the State that applied for or participated in the CRRSA EANS 
program. Using an average percentage of poverty in non-public schools 
could allow a State to establish an appropriate significant poverty 
percentage relative to non-public schools in the State.
    Finally, the final requirements also permit a State to support an 
alternate significant poverty percentage based on factors that the 
State demonstrates reflect significant poverty. For example, a State 
might submit data showing the relative rates of poverty in non-public 
schools as compared to public schools, or the percentage of non-public 
schools that would be excluded at different poverty percentages, and 
explain why those data support the requested alternate percentage.
    We believe these alternatives address some commenters' concerns 
that a State should have the opportunity to propose a significant 
poverty percentage that reflects circumstances within the State. We 
know that poverty percentages vary considerably among States and 
between public and non-public schools. The alternatives permit a State 
to propose a significant poverty percentage relative to poverty within 
the State.

Most Impacted by the COVID-19 Emergency Statute

    Under section 2002(a) of the ARP Act, services or assistance to 
non-public schools under the ARP EANS program is limited to ``non-
public schools that enroll a significant percentage of [students from 
low-income families] and are most impacted by the [COVID-19] 
emergency.''
    Final Requirements: Under the final requirements, an SEA determines 
if a non-public school is most impacted by the COVID-19 emergency based 
on one or more of the following factors: (1) The number of COVID-19 
infections per capita in the community or communities served by the 
non-public school; (2) the number of COVID-19 deaths per capita in the 
community or communities served by the non-public school; (3) data on 
the academic impact of lost instructional time and the social, 
emotional, or mental health impacts attributable to the disruption of 
instruction caused by the COVID-19 emergency; or (4) the economic 
impact of the COVID-19 emergency on the community or communities served 
by the non-public school. In addition to using one or more of these 
factors, an SEA may use other factors included in the State's approved 
application to determine which non-public schools are most impacted by 
the COVID-19 emergency.
    Reasons: The final requirements afford a State several options from 
which to choose in assessing impact. COVID-19 infection and death rates 
are readily available \4\ and provide a reasonable way to identify 
communities most impacted by the COVID-19 emergency. Additionally, 
students are facing significant academic challenges as a result of the 
lost instructional time,\5\ and social, emotional, and mental health 
impacts attributable to the disruption of instruction caused by the 
COVID-19 emergency. Depending upon the specific circumstances, these 
issues may be more pronounced in some non-public schools than others. 
Finally, the COVID-19 emergency has had a disproportionate economic 
impact on many communities,\6\ including high rates of unemployment, 
which may have a concomitant impact on non-public schools serving such 
communities.
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    \4\ The Centers for Disease Control and Prevention provides a 
COVID Data Tracker on its website, available at https://covid.cdc.gov/covid-data-tracker/, which includes community data on 
reported COVID-19 cases and deaths.
    \5\ We note that section 312(d)(4)(L) of division M of the CRRSA 
Act specifically authorizes the use of EANS funds to address 
``learning loss,'' which the final requirements refer to as the 
``academic impact of lost instructional time.''
    \6\ See, e.g., Aaron Klein & Ember Smith, Explaining the 
Economic Impact of COVID-19: Core Industries and the Hispanic 
Workforce, Brookings Institution (Feb. 5, 2021), https://www.brookings.edu/research/explaining-the-economic-impact-of-covid-19-core-industries-and-the-hispanic-workforce/.
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    Given the wide-ranging impact of the COVID-19 emergency on schools 
and communities throughout the Nation, we recognize that there is no 
single factor with which to assess the impact of the COVID-19 emergency 
on non-public schools. Thus, in addition to one or more of the above 
factors, the final requirements allow an SEA to use other factors 
included in the State's approved application to determine the non-
public schools most impacted by the COVID-19 emergency.
    We recognize that non-public schools often draw students from 
communities other than the one in which they are located. Thus, the 
factors in the final requirements related to per capita COVID-19 
infections and deaths as well as economic impact are relative to the 
community or communities served by a non-public school, which the SEA 
has flexibility to determine.
    The final requirements reflect many of the comments recommending 
that the Department use the factors in the EANS FAQs and give States a 
range of options. Some commenters urged that the impact of the COVID-19 
emergency not be allowed to outweigh poverty. The final requirements 
use a majority of the factors in the EANS FAQs and permit an SEA to add 
others included in the State's approved application for EANS funding. 
They also make clear that a non-public school must meet both the

[[Page 36651]]

State's significant poverty percentage and be most impacted by the 
COVID-19 emergency, as required by the ARP Act.

Transparency

    Statute: Section 312(d)(2)(B)(i) of the CRRSA Act requires an SEA 
to ``distribute information about the [EANS] program to non-public 
schools and make the information . . . easily available.'' Under 20 
U.S.C. 1221e-3, the Secretary has the authority to promulgate rules 
governing the programs administered by the Department.
    Final Requirements: Following approval of the Governor's ARP EANS 
application by the Secretary, an SEA must publish on its website, on or 
before the date it makes applications for services or assistance 
available to non-public schools, the State's approved (1) minimum 
percentage to determine whether a non-public school enrolls a 
significant percentage of students from low-income families; (2) 
source(s) of poverty data to be used in determining counts of students 
from low-income families in a non-public school; and (3) factors to 
determine whether a non-public school is most impacted by the COVID-19 
emergency.
    Reasons: We believe transparency regarding the significant poverty 
percentage, sources of poverty data, and factors for determining 
schools most impacted by the COVID-19 emergency that a State uses are 
important given the potential variations among States. Transparency 
would ensure that all stakeholders are aware of the specific criteria 
each State plans to apply in determining which non-public schools 
receive services or assistance under the ARP EANS program.

Determining Low-Income Counts

Low-Income Threshold

    Statute: Under section 2002(a) of the ARP Act, services or 
assistance to non-public schools under the ARP EANS program are limited 
to ``non-public schools that enroll a significant percentage of 
[students from low-income families] and are most impacted by the 
[COVID-19] emergency.'' Neither the ARP Act nor the CRRSA Act defines 
``students from low-income families'' or ``low-income students.''
    Final Requirements: To be counted as a student from a low-income 
family for purposes of these requirements, a student must be aged 5 
through 17 from a family whose income does not exceed 185 percent of 
the 2020 Federal poverty level.
    Reasons: The Department defined the count of children as those aged 
5 through 17 because that is the age range section 312(d)(1)(B) of 
division M of the CRRSA Act requires the Department to use to allocate 
EANS funds to States. Additionally, that age range is used in other 
contexts involving Federal education funds, including allocating funds 
to local educational agencies and determining the proportional share 
for equitable services under title I of the ESEA. (See, for example, 
sections 1117(c)(1) and 1124(c)(1) of the ESEA). The Department chose 
to set a limit on the poverty threshold for the family of a student to 
be counted as low-income at 185 percent of the 2020 Federal poverty 
level for several reasons. Section 312(d)(1)(B) of division M of the 
CRRSA Act requires the Department to allocate EANS funds to each State 
based on the proportion of children aged 5 through 17 ``at or below 185 
percent of poverty who are enrolled in non-public schools in the 
State.'' The threshold to qualify for free and reduced-price meals 
under the Richard B. Russell National School Lunch Act (42 U.S.C. 1751 
et seq.) is 185 percent of the Federal poverty level, and eligibility 
for free and reduced-price meals also is the poverty measure most often 
used for determining within-district allocations and for identifying 
the economically disadvantaged subgroup for accountability and 
reporting purposes under title I of the ESEA. One hundred eighty-five 
percent of the Federal poverty level is also the threshold to qualify 
for the E-rate program administered by the Federal Communications 
Commission (47 CFR 54.500, 54.505(b)). Finally, several commenters 
recommended 185 percent of the Federal poverty level as the threshold 
for family income. For these reasons, the Department believes it is the 
appropriate standard of low-income status for use in determining what 
constitutes a significant percentage of students from low-income 
families in non-public schools in order to provide services or 
assistance under the ARP EANS program.

Sources of Data on Family Income

    Statute: Under section 2002(a) of the ARP Act, services or 
assistance to non-public schools under the ARP EANS program are limited 
to ``non-public schools that enroll a significant percentage of 
[students from low-income families] and are most impacted by the 
[COVID-19] emergency.'' Neither the ARP Act nor the CRRSA Act defines 
the term ``students from low-income families'' or ``low-income 
students.''
    Final Requirements: Under the final requirements, to obtain a count 
of students from low-income families enrolled in a non-public school, 
an SEA may use one or more of the following sources of data, provided 
the poverty threshold is consistent across sources and does not exceed 
185 percent of the 2020 Federal poverty level: (1) Free or reduced-
price lunch data; (2) data from the E-rate program; (3) data from a 
different source, such as scholarship or financial assistance data; or 
(4) data from a survey developed by the SEA.
    Reasons: Free and reduced-price lunch data is the source of poverty 
data most aligned to 185 percent of the 2020 Federal poverty level. The 
Department recognizes, however, that many non-public schools do not 
participate in the Federal meals program. E-rate data are similarly 
aligned but also may not be available for many non-public schools. 
Accordingly, the Department includes other sources of data for an SEA 
to choose that should be more readily available to non-public schools. 
An SEA may also send a survey to non-public school families to collect 
poverty data for use in meeting the SEA's threshold for significant 
percentage of students from low-income families, provided the SEA has 
sufficient time to distribute, collect, and compile data from the 
surveys.
    The final requirements afford an SEA some latitude to select one or 
more sources of poverty data, provided the poverty threshold is 
consistent among sources and does not exceed 185 percent of the Federal 
poverty level. Such latitude was particularly requested by commenters 
representing the non-public school community, given that not every 
school has the same poverty data on its families. The Department 
encourages an SEA to consult with non-public school officials regarding 
available sources of poverty data. Additionally, given that not all 
non-public schools have access to the same poverty data, the Department 
encourages an SEA to permit multiple sources of data, among schools or 
within a school, provided those data use a consistent poverty 
threshold.

Final Requirements

    The Secretary establishes the following final requirements for the 
ARP EANS program:
    (a) In general. A State educational agency (SEA) must provide 
services or assistance under the Emergency Assistance to Non-Public 
Schools (EANS) program, as authorized by the American Rescue Plan Act 
of 2021 (ARP Act), in accordance with the requirements applicable to 
the EANS program under section 312(d) of division M of the Coronavirus 
Response and Relief Supplemental

[[Page 36652]]

Appropriations Act, 2021 (CRRSA Act), except that--
    (1) An SEA may provide such services or assistance only to an 
eligible non-public school that enrolls a significant percentage of 
students from low-income families and is most impacted by the COVID-19 
emergency; and
    (2) An SEA may not use such funds to provide reimbursements to any 
non-public school.
    (b) Determining non-public schools to be served.
    (1) To provide services or assistance to a non-public school under 
paragraph (a), an SEA must determine, consistent with the State's 
approved application for EANS funding under the ARP Act, that the 
school--
    (i) Enrolls a significant percentage of students from low-income 
families in accordance with paragraphs (b)(2) and (c) of this section; 
and
    (ii) Is most impacted by the COVID-19 emergency in accordance with 
paragraph (b)(3) of this section.
    (2) A non-public school enrolls a significant percentage of 
students from low-income families if the percentage of students from 
low-income families enrolled in such school meets or exceeds--
    (i) 40 percent; or
    (ii) An alternate significant percentage approved by the Secretary 
in the State's application for EANS funding under the ARP Act that is 
based on circumstances in the State, which may be--
    (A) The State's average percentage of students from low-income 
families in public and non-public schools;
    (B) The average percentage of students from low-income families in 
non-public schools in the State that, for example, applied for or 
participated in the EANS program as authorized by the CRRSA Act; or
    (C) Other factors that the State demonstrates support an alternate 
significant poverty percentage.
    (3)(i) A non-public school is most impacted by the COVID-19 
emergency based on one or more of the following factors--
    (A) The number of COVID-19 infections per capita in the community 
or communities served by the non-public school;
    (B) The number of COVID-19-related deaths per capita in the 
community or communities served by the non-public school;
    (C) Data on the academic impact of lost instructional time and the 
social, emotional, and mental health impacts on students attending the 
non-public school attributable to the disruption of instruction caused 
by the COVID-19 emergency; or
    (D) The economic impact of the COVID-19 emergency on the community 
or communities served by the non-public school.
    (ii) In addition to using one or more of the factors identified in 
paragraph (b)(3)(i), an SEA may use other factors included in the 
State's approved application for EANS funding under the ARP Act to 
determine that a non-public school is most impacted by the COVID-19 
emergency.
    (4) An SEA must publish on its website, on or before the date it 
makes applications for EANS services or assistance under the ARP Act 
available to non-public schools, the State's approved--
    (i) Minimum percentage to determine whether a non-public school 
enrolls a significant percentage of students from low-income families;
    (ii) The source(s) of poverty data the State will use to determine 
counts of students from low-income families in a non-public school; and
    (iii) Factors to determine whether a non-public school is most 
impacted by the COVID-19 emergency.
    (c) Determining low-income counts. (1) To be counted as a student 
from a low-income family for purposes of this section, a student must 
be aged 5 through 17 from a family whose income does not exceed 185 
percent of the 2020 Federal poverty level.
    (2) To obtain a count of students from low-income families enrolled 
in a non-public school under paragraph (c)(1), an SEA may use one or 
more of the following sources of data, provided the poverty threshold 
is consistent across sources--
    (i) Data on student eligibility for free or reduced-price lunch 
under the Richard B. Russell National School Lunch Act (43 U.S.C. 1751 
et seq.);
    (ii) Data from the E-rate program administered by the Federal 
Communications Commission (47 CFR 54.500, 54.505(b));
    (iii) Data from a different source, such as scholarship or 
financial assistance data; or
    (iv) Data from a survey developed by the SEA.

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 for waiving notice and comment 
rulemaking. Notice and comment rulemaking would be impracticable 
because the time involved would preclude emergency funds being 
available to meet exigent needs of non-public schools resulting from 
the COVID-19 emergency, including the provision of services to address 
the academic impact of lost instructional time among non-public school 
students. The COVID-19 emergency continues to present extraordinary 
circumstances, including widespread school closures, significant loss 
of instructional time, and trauma for students, educators, and other 
staff.
    The final requirements provide reasonable parameters to address 
ambiguities regarding how to provide services or assistance to eligible 
non-public schools that enroll a significant percentage of students 
from low-income families and are most impacted by the COVID-19 
emergency. Accordingly, the final requirements are critical to ensuring 
that SEAs effectively and timely implement the ARP EANS program. In 
addition, the Department believes it is important to make clear the 
continued applicability of EANS requirements under the CRRSA Act, 
except as otherwise provided in the ARP Act. However, going through the 
full rulemaking process would delay the ability of SEAs to provide 
services or assistance to eligible non-public schools using ARP EANS 
funds, which are emergency funds intended to meet the immediate needs 
of non-public schools, including their students and teachers. 
Establishing these final requirements now, without the delay of notice 
and comment rulemaking, enables SEAs to effectively use ARP EANS funds 
to provide services or assistance to non-public schools to address the 
immediate safety and academic needs of students and help such schools 
safely return to or continue in-person instruction.
    The Department has moved with urgency to publish this document in 
an expedited fashion to ensure timely availability of funds to non-
public schools. The ARP Act was signed into law on March 11, 2021. Just 
one month later, on April 12, 2021, the Department published a request 
for information from the public to obtain comments that were due on 
April 26, 2021. After reviewing and considering the 66 comments 
received, the Department is publishing this document about two months 
after the comments were received.

[[Page 36653]]

    Additionally, as noted above, the Department invited comment 
regarding implementation of the requirement ``to provide services or 
assistance to non-public schools that enroll a significant percentage 
of [students from low-income families] and are most impacted by the 
[COVID-19] emergency'' as part of the Notice Inviting Applications and 
Announcing Allocations for the Emergency Assistance to Non-Public 
Schools Program Under the American Rescue Plan Act of 2021, issued on 
April 12, 2021. The Department reviewed and considered the comments 
received in response to that notice in the development of these final 
requirements. That prior comment process and the Department's 
responsiveness to those comments mitigate the need for notice-and-
comment rulemaking in this context.
    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 EANS funds are needed to address the immediate needs of 
students, educators, and schools due to the COVID-19 emergency, 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).
    Under the Congressional Review Act (CRA), a major rule may take 
effect no sooner than 60 calendar days after an agency submits a CRA 
report to Congress or the rule is published in the Federal Register, 
whichever is later. (5 U.S.C. 801(a)(3)(A)). However, the CRA creates 
limited exceptions to this requirement. (See 5 U.S.C. 801(c), 808). 
Section 808(2) provides that ``any rule which an agency for good cause 
finds (and incorporates the finding and a brief statement of reasons 
therefor in the rule issued) that notice and public procedure thereon 
are impracticable, unnecessary, or contrary to the public interest, 
shall take effect at such time as the Federal agency promulgating the 
rule determines.'' As stated above, the Department has found good cause 
to issue these final requirements without notice-and-comment 
rulemaking, and thus we are not including the 60-day delayed effective 
date in this document.

Executive Orders 12866 and 13563

Regulatory Impact Analysis

    Under Executive Order 12866, the Secretary must determine whether 
this regulatory action is ``significant'' and, therefore, subject to 
the requirements of the Executive order and subject to review by the 
Office of Management and Budget (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 the economy, 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 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 the Congressional Review Act (5 U.S.C. 801 et seq.), 
OMB's Office of Information and Regulatory Affairs designated this rule 
as a ``major rule,'' as defined by 5 U.S.C. 804(2).
    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, 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 and 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
    (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.'' The Office of 
Information and Regulatory Affairs has emphasized that these techniques 
may include ``identifying changing future compliance costs that might 
result from technological innovation or anticipated behavioral 
changes.''
    The Department has assessed the potential costs and benefits, both 
quantitative and qualitative, of this regulatory action, and we are 
issuing these 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 final 
requirements are consistent with the principles 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 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

    These final requirements are intended to clarify the provision of 
services or assistance to eligible non-public schools under the ARP 
EANS program. As discussed elsewhere in this document, the ARP EANS 
program provides significant resources to SEAs through each respective 
Governor to provide such services or assistance to respond to the 
unprecedented educational disruptions caused by the COVID-19 emergency. 
The Department believes this regulatory action is needed to ensure that 
SEAs provide services or assistance to non-public schools in a manner 
consistent with statutory requirements. In particular, the Department 
believes it is important to clarify the continued applicability of EANS 
requirements under the CRRSA Act, except as otherwise provided in the 
ARP Act. Additionally, the Department believes clarification is needed 
to

[[Page 36654]]

ensure that SEAs implement with fidelity the requirement to provide 
services or assistance only to eligible non-public schools that enroll 
a significant percentage of students from low-income families and are 
most impacted by the COVID-19 emergency.

Analysis of Costs and Benefits

    The Department believes this regulatory action does not impose 
significant new cost-bearing requirements on SEAs or other entities. 
This action primarily serves to clarify or give specific meaning to 
statutory requirements for SEAs in determining eligible non-public 
schools for services or assistance under the ARP EANS program; it 
generally does not establish new substantive requirements. Accordingly, 
costs associated with this action are attributable generally to the 
program statute. Moreover, in promulgating these final requirements, we 
have sought where possible to minimize the burden on SEAs in applying 
for ARP EANS funds and in complying with the statute. Any costs 
associated with the final requirements that are not directly 
attributable to the statute are outweighed by their benefits which, in 
addition to reduced burden, include clarity, appropriate flexibility, 
and transparency in SEA administration of the program.
    Under the ARP EANS program, SEAs provide services or assistance to 
eligible non-public schools that enroll a significant percentage of 
students from low-income families and are most impacted by the COVID-19 
emergency. The final requirements establish that a non-public school 
enrolls a significant percentage of students from low-income families 
if the percentage of those students enrolled in the school meets or 
exceeds 40 percent or an alternate significant percentage approved by 
the Secretary that is based on circumstances in the State. As discussed 
elsewhere in this document, 40 percent has long been recognized as a 
measure of significant poverty under title I of the ESEA. In addition 
to providing clarity, by using this percentage to determine whether a 
non-public school enrolls a significant percentage of students from 
low-income families, the final requirements employ a standard that is 
familiar to SEAs, thereby minimizing burden. By allowing an SEA to use 
an alternate significant percentage approved by the Secretary, the 
final requirements also provide appropriate flexibility to SEAs if 
circumstances in the State warrant a percentage other than 40 percent.
    The final requirements also establish that a student is included in 
the count of students from low-income families enrolled in a non-public 
school if the student is aged 5 through 17 and from a family whose 
income does not exceed 185 percent of the 2020 Federal poverty level. 
This commonly used poverty threshold similarly minimizes the burden on 
SEAs in complying with the program statute while also providing clarity 
in program administration.
    The final requirements further establish that, in determining which 
non-public schools are most impacted by the COVID-19 emergency, an SEA 
must use at least one of four identified factors, which notably include 
the numbers of COVID-19 infections and COVID-19-related deaths in 
communities served by the school. As discussed elsewhere in this 
document, community COVID-19 infection and death rates are readily 
available. Accordingly, the final requirements would allow an SEA to 
meet statutory requirements with minimal burden.
    Lastly, the final requirements establish a new substantive 
requirement on SEAs, namely, to provide transparency in program 
administration by publishing on the SEA website the minimum percentage 
used to determine whether a non-public school enrolls a significant 
percentage of students from low-income families, source(s) of poverty 
data, and the factors to be used to determine whether a school is most 
impacted by the COVID-19 emergency. We estimate that each SEA will need 
two hours to comply with this website posting requirement. At $97.28 
per hour (using mean wages for Education and Childcare Administrators 
\7\ and assuming the total cost of labor, including benefits and 
overheard, is equal to 200 percent of the mean wage rate), the total 
estimated cost for 52 SEAs (including the District of Columbia and the 
Commonwealth of Puerto Rico) is approximately $10,100.
---------------------------------------------------------------------------

    \7\ See https://www.bls.gov/oes/current/oes_nat.htm.
---------------------------------------------------------------------------

    Separately, the ARP EANS application imposes costs on SEAs. We 
estimate that each SEA will need two hours to complete the ARP EANS 
application. At $97.28 per hour, the total estimated cost for 52 SEAs 
to complete the ARP EANS application is approximately $10,100.

Net Budget Impacts

    We estimate that the discretionary elements of these final 
requirements will not have an impact on the Federal budget. This 
regulatory action establishes requirements for SEAs receiving ARP EANS 
funds but does not affect the amount of funding available for this 
program. We anticipate that the $2.75 billion in ARP EANS funds will be 
disbursed in Fiscal Year 2021, and therefore estimate $2.75 billion in 
transfers in Fiscal Year 2021 relative to the pre-statutory baseline.

Accounting Statement

        Accounting Statement--Classification of Estimated Impacts
                              [in millions]
------------------------------------------------------------------------
                  Category                             Benefits
------------------------------------------------------------------------
Clarity, flexibility, and transparency in    Not quantified.
 SEA administration of ARP EANS program.
                                            ----------------------------
                                                        Costs
                                            ----------------------------
Application completion and publication by    $0.02.
 SEAs of the minimum percentage used to
 determine whether a non-public school
 enrolls a significant percentage of
 students from low-income families,
 source(s) of poverty data, and the factors
 used to determine whether a school is most
 impacted by COVID-19.
                                            ----------------------------
                                                      Transfers
                                            ----------------------------
Services and assistance to non-public        $2,750.
 schools that enroll a significant
 percentage of students from low-income
 families and are most impacted by the
 COVID-19 emergency.
------------------------------------------------------------------------


[[Page 36655]]

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 APA (5 U.S.C. 553).

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 Analysis, the Department believes this regulatory 
action does not impose significant new cost-bearing requirements on 
SEAs or other entities and that it primarily serves to clarify or give 
specific meaning to statutory requirements for SEAs. The final 
requirements for determining non-public schools to be served and 
determining low-income counts allow SEAs to use generally available 
data and employ standards SEAs are familiar with, thereby minimizing 
cost and burden. The requirement that SEAs provide transparency in 
program administration, however, by publishing on their website the 
minimum percentage used to determine whether a non-public school 
enrolls a significant percentage of students from low-income families, 
the source(s) of poverty data, and the factors to be used to determine 
whether a school is most impacted by the COVID-19 emergency imposes a 
cost and burden hours on SEAs. In addition, the ARP EANS application 
will impose a cost and burden hours on SEAs. Those costs and burdens 
are discussed below.
    For the final requirement to provide transparency in program 
administration by publishing on the SEA website the minimum percentage 
used to determine whether a non-public school enrolls a significant 
percentage of students from low-income families and the factors to be 
used to determine whether a school is most impacted by the COVID-19 
emergency, we estimate that each SEA will need two hours to comply with 
the website posting requirement. At $97.28 per hour, the total 
estimated cost for 52 SEAs (including the District of Columbia and the 
Commonwealth of Puerto Rico) is approximately $10,100, and the total 
estimated burden is 104 hours.
    We estimate that one application will be prepared by each eligible 
SEA and submitted through the Governor of the respective State. For the 
time to complete the application, we estimate that the number of burden 
hours per response will be two hours. The total estimated number of 
burden hours is 104 hours. At $97.28 per hour, the total estimated cost 
for 52 SEAs to complete the ARP EANS application (including the 
District of Columbia and the Commonwealth of Puerto Rico) is also 
approximately $10,100.
    Collectively, we estimate that these new information collection 
activities will result in a total estimated cost of $20,200 and a total 
estimated burden of 208 hours to the public annually. The Department is 
requesting an emergency paperwork clearance from OMB under 5 CFR 
1320.13 on the OMB 1810-0741 data collection associated with these 
final requirements. That request will account for all burden hours and 
costs discussed within this section.
    Consistent with 5 CFR 1320.8(d), the Department is also soliciting 
comments on the information collection. We must receive your comments 
on the collection activities contained in these final requirements on 
or before September 13, 2021. 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-SCC-0101 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 and the 
Department review all comments related to the information collection 
activities posted at www.regulations.gov.


                                            Collection of Information
----------------------------------------------------------------------------------------------------------------
                                                     Estimated                         Total      Estimated cost
         Information collection activity              number         Hours per       estimated     at an hourly
                                                     responses       response      burden hours   rate of $97.28
----------------------------------------------------------------------------------------------------------------
SEA Transparency................................              52               2             104         $10,100
SEA ARP EANS Application........................              52               2             104          10,100
                                                 ---------------------------------------------------------------
Annualized Total................................             104               4             208          20,200
----------------------------------------------------------------------------------------------------------------

Intergovernmental Review

    The ARP EANS 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 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

[[Page 36656]]

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.

Ian Rosenblum,
Deputy Assistant Secretary for Policy and Programs delegated the 
authority to perform the functions and duties of the Assistant 
Secretary, Office of Elementary and Secondary Education.
[FR Doc. 2021-14862 Filed 7-12-21; 8:45 am]
BILLING CODE 4000-01-P