[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