[Federal Register Volume 86, Number 190 (Tuesday, October 5, 2021)]
[Proposed Rules]
[Pages 54883-54887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21764]


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DEPARTMENT OF EDUCATION

34 CFR Chapter II

[Docket ID ED-2021-OESE-0116]


Proposed Requirement--American Rescue Plan Act Elementary and 
Secondary School Emergency Relief Fund

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

ACTION: Proposed requirement.

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SUMMARY: The Department of Education (Department) proposes a 
requirement for the American Rescue Plan Elementary and Secondary 
School Emergency Relief (ARP ESSER) Fund, under the American Rescue 
Plan Act of 2021 (ARP Act). This requirement is intended to promote 
accountability and transparency and ensure that each State educational 
agency (SEA) and each local educational agency (LEA) meets the 
statutory requirement to maintain equity.

DATES: We must receive your comments on or before November 4, 2021.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments submitted by fax or by email or those submitted after 
the comment period. To ensure that we do not receive duplicate copies, 
please submit your comments only once. In addition, please include the 
Docket ID at the top of your comments.
     Federal eRulemaking Portal: Go to www.regulations.gov to 
submit your comments electronically. Information on using 
Regulations.gov, including instructions for accessing agency documents, 
submitting comments, and viewing the docket, is available on the site 
under ``FAQ.''
     Postal Mail, Commercial Delivery, or Hand Delivery: If you 
mail or deliver your comments about the proposed requirement, address 
them to U.S. Department of Education, 400 Maryland Avenue SW, Room 
3W113, Washington, DC 20202.
    Privacy Note: The Department's policy is to make all comments 
received from members of the public available for public viewing in 
their entirety on the Federal eRulemaking Portal at 
www.regulations.gov. Therefore, commenters should be careful to include 
in their comments only information that they wish to make publicly 
available.

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

SUPPLEMENTARY INFORMATION: 
    Invitation to Comment: We invite you to submit comments regarding 
the proposed requirement. To ensure that your comments have maximum 
effect in developing the requirement, we urge you to clearly identify 
the specific section of the proposed requirement that each comment 
addresses.
    We invite you to assist us in complying with the specific 
requirements of Executive Orders 12866 and 13563 and their overall 
requirement of reducing regulatory burden that might result from the 
proposed requirement. In addition to your general comments and 
recommended clarifications, we seek input on (i) what demographic 
information (e.g., poverty status, race/ethnicity, students with 
disabilities, and English learners) LEAs should publicly post on the 
schools the LEA identifies as high-poverty schools as noted in proposed 
requirement (a)(2) and (ii) on any further ways we could reduce 
potential costs or increase potential benefits while preserving the 
effective and efficient administration of our programs.
    During and after the comment period, you may inspect all public 
comments about the proposed requirement by accessing Regulations.gov. 
Due to the novel coronavirus 2019 (COVID-19) pandemic, the Department 
buildings are currently not open to the public. However, upon reopening 
you may also inspect the comments in person in room 3C124, 400 Maryland 
Avenue SW, Washington, DC, between the hours of 8:30 a.m. and 4:00 
p.m., Eastern time, Monday through Friday of each week except Federal 
holidays.
    At the same time the Department is publishing this Notice of 
Proposed Requirement, it is publishing a Request For Information (RFI) 
to help inform its support for SEAs and LEAs in implementing the 
MOEquity provisions. Through the RFI, the Department is seeking input 
from the public with respect to specific questions as well as 
additional information and perspectives on MOEquity implementation.
    Assistance to Individuals With Disabilities in Reviewing the 
Rulemaking Record: On request we will provide an appropriate 
accommodation or auxiliary aid to an individual with a disability who 
needs assistance to review the comments or other

[[Page 54884]]

documents in the public rulemaking record for the proposed requirement. 
If you want to schedule an appointment for this type of accommodation 
or auxiliary aid, please contact the person listed under FOR FURTHER 
INFORMATION CONTACT.
    Purpose of Program: The ARP ESSER Fund provides a total of nearly 
$122 billion to SEAs and LEAs to help them safely reopen and sustain 
the safe operation of schools and address the impacts of the COVID-19 
pandemic on the Nation's students by addressing students' academic, 
social, emotional, and mental health needs. As a condition of receiving 
the funds, each SEA and LEA must comply with multiple requirements, 
including the maintenance of equity (MOEquity) requirements in section 
2004 of the ARP Act.
    Program Authority: ARP Act of 2021, Public Law 117-2, March 11, 
2021.
    Proposed Requirement: This document contains one proposed 
requirement.

Background

    The ARP Act provides a total of nearly $122 billion via the ARP 
ESSER Fund to SEAs and LEAs to help schools return safely to in-person 
instruction; sustain the safe operation of schools; and address the 
academic, social, emotional, and mental health impacts of the COVID-19 
pandemic on the Nation's students. Section 2004 of the ARP Act includes 
new MOEquity provisions that are a condition for an SEA and LEA to 
receive funds under the ARP ESSER Fund. Under section 2004(b) of the 
ARP Act, the MOEquity provisions ensure that LEAs and schools serving a 
large share of students from low-income backgrounds do not experience a 
disproportionate share of reduced funding in fiscal years (FYs) 2022 
and 2023, and that, for the highest-poverty LEAs, State funding is not 
decreased below their FY 2019 level. In addition, the MOEquity 
provisions ensure that each LEA safeguards its high-poverty schools 
from disproportionate cuts to funding and staffing. On August 6, 2021, 
the Department issued a Dear Colleague Letter (DCL) to Chief State 
School Officers and District School Superintendents emphasizing the 
importance of maintaining equity and addressing specific implementation 
challenges for fiscal year 2022. On August 6, the Department also 
issued updated Frequently Asked Questions on the Maintenance of Equity 
Requirements (MOEquity FAQs) \1\ providing detailed guidance on how 
each SEA and LEA can maintain equity and comply with the MOEquity 
provisions. In that guidance, the Department indicated that SEAs and 
LEAs should consider making MOEquity data publicly available.
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    \1\ See https://oese.ed.gov/files/2021/08/Maintenance-of-Equity-updated-FAQs_final_08.06.2021.pdf.
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    In Appendix A to the MOEquity frequently asked questions issued in 
June 2021 and updated on August 6, 2021, the Department asked each SEA 
to report to it baseline and initial data on the State's high-need and 
highest-poverty LEAs, the statewide per-pupil amount of State funds 
provided to all LEAs in FYs 2021 and 2022 as well as the per-pupil 
amount provided to each high-need LEA in those years, the per-pupil 
amount of State funds provided to each highest-poverty LEA in FYs 2019 
and 2022, and a list of the highest-poverty LEAs for which the State 
must maintain equity. The Department is posting these data on its 
website at https://oese.ed.gov/offices/american-rescue-plan/american-rescue-plan-elementary-and-secondary-school-emergency-relief/maintenance-of-equity/ and will update the data as new data become 
available. These data are available to interested stakeholders and the 
public. The Department also intends to collect SEA-level MOEquity data 
through each State's annual performance report and will make those data 
publicly available.
    Although data on State-level MOEquity will be available on the 
Department's website, there are not publicly available data for LEA-
level MOEquity. Accordingly, in the proposed requirement, the 
Department addresses this need to emphasize the importance of 
transparency and accountability in ways that are consistent with the 
Department's policy goals of ensuring that schools and LEAs serving 
large proportions of historically underserved groups of students--
including students from low-income families, students of color, English 
learners, students with disabilities, migratory students, and students 
experiencing homelessness--receive an equitable share of State and 
local funds as the Nation continues to recover from the impact of the 
COVID-19 pandemic on our education system. To support these goals, and 
to ensure public accountability for the implementation of the MOEquity 
provisions of the ARP Act, the Department proposes to require that each 
SEA make publicly available information on how each LEA in the State is 
maintaining fiscal and staffing equity. Requiring that MOEquity data be 
publicly available will allow parents, families, and local communities 
to access information on how the LEA is maintaining equity for schools 
with high concentrations of students from low-income families. 
Additionally, public posting of data and information on how each LEA in 
the State is maintaining equity is an important accountability tool for 
SEAs and the Department.
    Several questions in the MOEquity FAQs on LEA-level maintenance of 
equity (see generally Questions 22-32) address the data an SEA would 
report under this proposed requirement. For example, Question 32 
discusses LEAs that may be excepted under paragraph (a)(1) below from 
meeting the MOEquity requirements, including those LEAs that qualify as 
having exceptional or uncontrollable circumstances in FY 2022 due to 
the pandemic. (See also the August 6, 2021, DCL.) Similarly, Questions 
23-25 clarify how to identify high-poverty schools under paragraph 
(a)(2)(i). Question 26 provides information applicable to paragraphs 
(a)(2)(ii) and (iii) on how the amount of per-pupil funding aligns with 
reporting on per-pupil expenditures under section 1111(h)(1)(C)(x) of 
the Elementary and Secondary Education Act of 1965. Questions 28 and 29 
clarify how to determine full-time-equivalent (FTE) staff applicable to 
paragraphs (a)(2)(iv) and (v). Finally, Questions 27 and 30 address how 
to determine if an LEA has maintained equity in its high-poverty 
schools for paragraph (a)(2)(vi).

Proposed Requirement

    (a) By December 31 of each applicable school year, an SEA must 
publish the following MOEquity data on its website, in a way that is 
machine-readable and accessible, for each LEA in the State, listed by 
the applicable National Center for Education Statistics LEA and school 
ID, in a location accessible for parents and families:
    (1) Whether the LEA is exempt from MOEquity requirements under 
section 2004(c)(2) of the ARP Act, including but not limited to an LEA 
that demonstrates an exceptional or uncontrollable circumstance.
    (2) If an LEA is not exempt from MOEquity requirements as detailed 
in paragraph (a)(1)--
    (i) Which schools in the LEA are identified as high-poverty schools 
as defined in section 2004(d)(4) of the ARP Act and demographic 
information for each such school compared to the entire LEA.

[[Page 54885]]

    (ii) The per-pupil amount of funding for each high-poverty school 
in the LEA in FYs 2021, 2022, and 2023, as applicable for the year in 
which the data are published.
    (iii) The per-pupil amount of funding in the aggregate for all 
schools in the LEA in FYs 2021, 2022, and 2023, as applicable for the 
year in which the data are published.
    (iv) The per-pupil number of FTE staff for each high-poverty school 
in the LEA in FYs 2021, 2022, and 2023, as applicable for the year in 
which the data are published, which may also be indicated as the number 
of students per FTE staff.
    (v) The per-pupil number of FTE staff in the aggregate for all 
schools in the LEA in FYs 2021, 2022, and 2023, as applicable for the 
year in which the data are published, which may also be indicated as 
the number of students per FTEs.
    (vi) Whether the LEA did not maintain equity for any high-poverty 
school in FY 2022 or 2023, as applicable for the year in which the data 
are published.
    (b) If an LEA maintains equity by grade span, the SEA must post the 
LEA's data described in paragraphs (a)(2)(i)-(vi) by grade span.
    (c) When reporting on each data element in paragraph (a), the SEA 
must ensure that the data reported are accurate and consistent with the 
requirements in section 2004(c) of the ARP.

Executive Orders 12866 and 13563

Regulatory Impact Analysis

    Under Executive Order 12866, the Office of Management and Budget 
(OMB) must determine whether this regulatory action is ``significant'' 
and, therefore, subject to the requirements of the Executive Order and 
subject to review by OMB. Section 3(f) of Executive Order 12866 defines 
a ``significant regulatory action'' as an action likely to result in a 
rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
Tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement 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 proposed regulatory action is not a significant regulatory 
action subject to review by OMB under section 3(f) of Executive Order 
12866.
    We have also reviewed this proposed regulatory action 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 on 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) In choosing among alternative regulatory approaches, select 
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 economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
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 of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are issuing the proposed requirement only on a reasoned 
determination that its benefits would justify its costs. In choosing 
among alternative regulatory approaches, we selected the approach that 
would maximize net benefits. Based on an analysis of anticipated costs 
and benefits, we believe that the proposed requirement is consistent 
with the principles in Executive Order 13563.
    We also have determined that this regulatory action does not unduly 
interfere with State, local, and Tribal governments in the exercise of 
their governmental functions.
    In accordance with the Executive Orders, the Department has 
assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action. The potential costs are those 
resulting from statutory requirements and those we have determined as 
necessary for administering the Department's programs and activities.

Potential Costs and Benefits

    The Department has analyzed the costs and benefits of complying 
with the proposed requirement. Due to the varying capacity and 
administrative structures of affected entities, we cannot estimate, 
with absolute precision, the likely effects of the proposed 
requirement. However, as discussed below, we estimate that the proposed 
requirement would have a net cost of $60,000 over two years.
    For the purposes of these estimates, the Department assumes that, 
as part of their routine compliance efforts and effective 
administration of the affected Federal grants, States already collect 
and retain the relevant MOEquity data on each LEA's implementation of 
the MOEquity requirements and that such data are stored in a single 
repository (e.g., a single data file including information for all of 
the State's LEAs). We further assume that States regularly collect and 
retain demographic data on schools within the State. To the extent that 
these assumptions are incorrect, actual costs borne by States could be 
higher than those outlined below.
    We assume that a representative from each of the 50 States, the 
District of Columbia, and Puerto Rico (hereafter referred to as States) 
would review the final requirement. We assume that such review would 
take, on average, one hour per State for a one-time cost of 
approximately $2,800.\2\
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    \2\ The Department assumes a loaded wage rate of $53.79 per hour 
based on the average hourly wage rate for management analysts 
employed in State governments, excluding schools and hospitals 
(https://www.bls.gov/oes/current/naics4_999200.htm), which is 
multiplied by 1.61 to account for the employer cost for employee 
compensation (https://www.bls.gov/news.release/pdf/ecec.pdf).
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    We assume that, for each State, a management analyst would need to 
spend approximately eight hours, on average, compiling the relevant 
data and preparing it for posting. Within this estimate, we assume a 
management analyst would compile and incorporate

[[Page 54886]]

demographic data into the same file as the MOEquity data, employ any 
necessary data suppression rules, and make any necessary formatting 
changes for posting of the data. We assume that posting the data online 
would take a network administrator ($59.09 \3\ per hour) approximately 
30 minutes. In total, we assume posting data would cost approximately 
$32,300 per year.
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    \3\ The Department assumes a loaded wage rate of $59.09 per hour 
based on the average hourly wage rate for network and computer 
systems administrators employed in State governments, excluding 
schools and hospitals (https://www.bls.gov/oes/current/naics4_999200.htm), which is multiplied by two to account for 
overhead and benefits.
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    Finally, we assume that approximately 20 States would need to 
update their data after initial posting. We assume the updates would 
take a management analyst approximately 4 hours to complete and would 
require 30 minutes for a network administrator to post. In total, we 
assume posting corrections would cost approximately $6,500 per year.
    As noted above, approximately 20 States would need to post their 
data twice. As such, we estimate that the proposed requirement would 
cost a total of approximately $60,000 over two years.
    In general, we believe that the costs outlined above could be 
offset with funds the States have reserved under the ARP ESSER grant 
program. The benefit of publicly posting this local MOEQuity data is to 
facilitate public accountability so that parents and families will be 
able to access publicly available information on how each LEA in the 
State is maintaining fiscal and staffing equity. As such, we believe 
the benefit to the general public would far outweigh any burden on 
States.

Clarity of the Regulations

    Executive Order 12866 and the Presidential memorandum ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.
    The Secretary invites comments on how to make the proposed 
requirement easier to understand, including answers to questions such 
as the following:
     Are the requirements in the proposed regulations clearly 
stated?
     Do the proposed regulations contain technical terms or 
other wording that interferes with their clarity?
     Would the proposed regulations be difficult to understand 
for or to explain to someone with literacy challenges or limited 
English proficiency?
     Does the format of the proposed regulations (grouping and 
order of sections, use of headings, paragraphing, etc.) aid or reduce 
their clarity?
     Would the proposed regulations be easier to understand if 
we divided them into more (but shorter) sections?
     Could the description of the proposed regulations in the 
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in 
making the proposed regulations easier to understand? If so, how?
     What else could we do to make the proposed regulations 
easier to understand?
    To send any comments that concern how the Department could make the 
proposed requirement easier to understand, see the instructions in the 
ADDRESSES section.
    Intergovernmental Review: These programs are subject to Executive 
Order 12372 and the regulations in 34 CFR part 79. One of the 
objectives of the Executive order is to foster an intergovernmental 
partnership and a strengthened federalism. The Executive order relies 
on processes developed by State and local governments for coordination 
and review of proposed Federal financial assistance.
    This document provides early notification of our specific plans and 
actions for these programs.

Regulatory Flexibility Act Certification

    The Secretary certifies that this proposed regulatory action would 
not have a significant economic impact on a substantial number of small 
entities. The U.S. Small Business Administration Size Standards define 
proprietary institutions as small businesses if they are independently 
owned and operated, are not dominant in their field of operation, and 
have total annual revenue below $7,000,000. Nonprofit institutions are 
defined as small entities if they are independently owned and operated 
and not dominant in their field of operation. Public institutions are 
defined as small organizations if they are operated by a government 
overseeing a population below 50,000.
    The proposed regulatory action would affect only States, none of 
which is a small entity for the purpose of this analysis.

Paperwork Reduction Act

    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.
    The proposed requirement that an SEA must publish on its website 
MOEquity data for each LEA in the State contains an information 
collection requirement. Under the PRA, the Department has submitted 
this requirement to OMB for its review.
    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 Potential Costs and Benefits section of the 
Regulatory Impact Analysis, this proposed requirement would create cost 
and burden hours for SEAs. In the following paragraphs, we estimate the 
cost and burden hours associated with complying with this proposed 
requirement. Differences between the estimates in the  Regulatory 
Impact Analysis and this section are due to differences in calculating 
the net impact and annual impact of this requirement.
    We assume that, for each SEA, including the District of Columbia 
and the Commonwealth of Puerto Rico, a management analyst, at an hourly 
rate of $53.79, will spend approximately 8 hours compiling the relevant 
data and preparing it for publication on the SEA website. At an hourly 
rate of $59.09, we estimate that posting the data online would take a 
network administrator approximately 30 minutes. We estimate that 
posting the MOEquity data would cost each SEA $460 and result in 8.5 
burden hours annually for a total annual cost of $23,900, and 442 
burden hours.
    We estimate that approximately 20 States will need to update their 
data after initial posting. We assume the updates would take a 
management analyst approximately 4 hours to complete and would require 
30 minutes for a network administrator to post. We estimate posting 
corrections will cost each SEA $240 and result in 4.5 burden hours for 
a total cost of $4,900, and 90 burden hours.
    Collectively, we estimate that this proposed requirement would 
result in a

[[Page 54887]]

total estimated cost of $23,800 and a total estimated burden of 532 
hours to the public annually.
    The Department is requesting paperwork clearance on the OMB 1810-
0759 data collection associated with this proposed requirement. That 
request will account for all burden hours and costs discussed within 
this section. Consistent with 5 CFR 1320.8(d), the Department is 
soliciting comments on the information collection through this 
document. We must receive your comments on the collection activities 
contained in this proposed requirement on or before December 6, 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-OESE-0116 
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, 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
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                                                     Estimated                         Total
         Information collection activity              number         Hours per       estimated       Estimated
                                                     responses       response      burden  hours    total cost
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MOEquity Data Posting...........................              52             8.5             442         $32,300
MOEquity Data Updates...........................              20             4.5              90           6,500
                                                 ---------------------------------------------------------------
    Annualized Total............................              72  ..............             532          38,800
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    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, or 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 
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    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 for Elementary and Secondary Education.
[FR Doc. 2021-21764 Filed 10-4-21; 8:45 am]
BILLING CODE 4000-01-P