[Federal Register Volume 86, Number 190 (Tuesday, October 5, 2021)]
[Proposed Rules]
[Pages 54881-54883]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21766]


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DEPARTMENT OF EDUCATION

34 CFR Chapter II

[ED-2021-OESE-0115]


Request for Information Regarding the Implementation of 
Maintenance of Equity Provisions in the American Rescue Plan Act of 
2021

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

ACTION: Request for information.

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SUMMARY: The U.S. Department of Education (Department) is requesting 
information in the form of written comments regarding implementation of 
the statutory requirements for the American Rescue Plan Elementary and 
Secondary School Emergency Relief (ARP ESSER) Fund, under the American 
Rescue Plan (ARP) Act of 2021, that each State educational agency (SEA) 
and each local educational agency (LEA) that receives ARP ESSER funds 
maintain equity. Information received through this request may be used 
to assist the Department in preparing further guidance, providing 
technical assistance, engaging in potential rulemaking, and developing 
other resources.

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

ADDRESSES: Submit your response to this request for information (RFI) 
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

[[Page 54882]]

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 in response to the request for information, 
address them to U.S. Department of Education, 400 Maryland Avenue SW, 
Room 3W113, Washington, DC 20202. Mailed comments must be postmarked by 
November 4, 2021, to be accepted.
    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.
    This is a request for information only. This RFI is not a request 
for proposals (RFP) or a promise to issue an RFP or a notice inviting 
applications. This RFI does not commit the Department to contract for 
any supply or service whatsoever. Further, we are not seeking proposals 
and will not accept unsolicited proposals. The Department will not pay 
for any information or administrative costs that you may incur in 
responding to this RFI. The documents and information submitted in 
response to this RFI become the property of the U.S. Government and 
will not be returned.

FOR FURTHER INFORMATION CONTACT: Britt Jung, U.S. Department of 
Education, 400 Maryland Avenue SW, 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: 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 social, emotional, mental health, 
and academic impacts of the COVID-19 pandemic on the Nation's students.
    Section 2004 of the ARP Act includes maintenance of equity 
(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 an SEA does not 
disproportionately reduce State funding in fiscal years (FYs) 2022 and 
2023 for LEAs serving a large share of students from low-income 
families and, for the highest-poverty LEAs, does not decrease State 
funding below their FY 2019 level. Similarly, under section 2004(c) of 
the ARP Act, the MOEquity provisions ensure that each LEA safeguards 
its high-poverty schools from disproportionate reductions to funding 
and staffing.
    On June 9, 2021, the Department published Frequently Asked 
Questions on the MOEquity requirements (which the Department updated on 
August 6, 2021),\1\ providing detailed guidance on how each SEA and LEA 
can comply with the MOEquity provisions.
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    \1\ See https://oese.ed.gov/files/2021/08/Maintenance-of-Equity-updated-FAQs_final_08.06.2021.pdf. (Maintenance of Equity Frequently 
Asked Questions).
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    Since issuing the guidance, the Department has continued to engage 
with a wide array of stakeholders to understand the opportunities and 
challenges related to MOEquity implementation within the context of the 
coronavirus disease 2019 (COVID-19) pandemic. The Department is eager 
to learn from the experiences and perspectives of SEAs, LEAs, and other 
stakeholders. We are, therefore, issuing this RFI to invite public 
comment on a range of MOEquity implementation questions. At the same 
time, the Department is publishing elsewhere in this issue of the 
Federal Register a Notice of Proposed Requirements (NPR) that would 
require each SEA to make publicly available information on how each LEA 
in the State is maintaining fiscal and staffing equity to ensure public 
transparency and accountability for the implementation of the MOEquity 
provisions.
    Invitation to Comment: The Department is committed to supporting 
SEAs and LEAs in implementing the ARP Act MOEquity provisions with 
fidelity to the law. The Department recognizes that each State's 
education finance system is unique and that additional guidance may be 
needed regarding how to apply the MOEquity requirements with fidelity 
in the context of specific and varied State circumstances.
    To help inform its support for SEAs and LEAs in implementing the 
MOEquity provisions, the Department is seeking input from the public. 
The Department is interested in responses to the specific questions 
below, as well as additional information and perspectives on MOEquity 
implementation. Because this RFI is intended to inform further guidance 
and any potential rulemaking, the Department does not anticipate 
responding to each comment received. When responding to this RFI, 
please address one or more of the following questions:
    1. The Department is aware that each State's K-12 education funding 
system is unique and that State-specific considerations may impact how 
an SEA implements MOEquity requirements in a manner that is both 
meaningful and meets the technical requirements of the ARP Act. What 
types of State-specific considerations (e.g., funding mechanisms, 
definitions of revenue sources, etc.) are relevant to the 
implementation of the State and local MOEquity provisions? What types 
of barriers exist to implementing the MOEquity provisions due to the 
State-specific approach to education funding? How might guidance or 
potential rulemaking account for unique State education finance systems 
so that State MOEquity implementation will be consistent with the goal 
of maintaining equity?
    2. The Department recognizes that LEAs with small enrollments may 
exhibit greater annual variation in per-pupil funding and other 
calculations based primarily on their size. How might this issue be 
addressed to ensure the small size of an LEA does not render year-over-
year comparisons unreliable, so that State MOEquity implementation will 
be consistent with the goal of maintaining equity?
    3. MOEquity requires comparisons of ``per-pupil funding.'' Please 
identify any considerations that are relevant to implementation related 
to enrollment data and funding sources used in determining per-pupil 
funding. Are there safeguards that should be considered to ensure that 
State-specific enrollment methodologies do not distort per-pupil 
funding levels (e.g., the use of hold harmless provisions or rolling 
averages)? Since MOEquity calculations are important to inform budget 
allocation decisions, what data are SEAs and LEAs most likely to have 
available and rely on for conducting initial MOEquity calculations?
    4. LEAs may be exempted from MOEquity requirements per the ARP Act 
based on ``exceptional or uncontrollable circumstance[s].'' What 
factors should the Department be aware of related to the types of 
exceptional or

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uncontrollable circumstances, both specific to FY 2022 implementation 
and, more generally, to ensure that such exceptions do not contradict 
the intent of the law and are consistent with the goal of maintaining 
equity?
    5. The purpose of the MOEquity provisions is to ensure that schools 
and LEAs serving large proportions of underserved groups of students--
including students from low-income families, students of color, English 
learners, students with disabilities, and students experiencing 
homelessness--receive an equitable share of State and local funds as 
the Nation continues to respond to the COVID-19 pandemic's impact. In 
light of this purpose, what other information or related issues should 
the Department consider to ensure that the purpose of the MOEquity 
provisions are achieved?
    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 
access the official edition of the Federal Register and the Code of 
Federal Regulations at www.govinfo.gov. At this site you can view this 
document, as well as all other documents of the 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 for Elementary and Secondary Education.
[FR Doc. 2021-21766 Filed 10-4-21; 8:45 am]
BILLING CODE 4000-01-P