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American Rescue Plan Act Emergency Assistance to Non-Public Schools Program (rule, 86 FR 36648, July 13, 2021)

Summary

Federal Register pages from Tuesday, July 13, 2021 (86 FR 36648) carrying the Department of Education's final requirements for the American Rescue Plan Emergency Assistance to Non-Public Schools (ARP EANS) program, effective July 13, 2021. Section 2002(a) of the ARP Act appropriates $2,750,000,000 for allocations to Governors 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. A school qualifies if its share of students from low-income families meets or exceeds either 40 percent or an alternate percentage the State proposes, and ARP EANS funds may not be used to provide reimbursements to any non-public school. The pages also carry a Coast Guard safety zone on the Cumberland River.

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Cite this document

“American Rescue Plan Act Emergency Assistance to Non-Public Schools Program (rule, 86 FR 36648, July 13, 2021).” Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/american-rescue-plan-act-emergency-assistance-to-non-public-schools-pr-19b687d3f6/, SHA-256 977a31f1573aa5bdc51743c563510e65c1afed0b21342815624067a0af8c3dde.

Full text

                                          36648               Federal Register / Vol. 86, No. 131 / Tuesday, July 13, 2021 / Rules and Regulations

                                          Cumberland River from mile marker                        DATES: These final requirements are                    to each State may be found at: https://
                                          191.1 to mile marker 191.5.                              effective July 13, 2021.                               oese.ed.gov/offices/education-
                                            (b) Definitions: As used in this                       FOR FURTHER INFORMATION CONTACT: Britt                 stabilization-fund/emergency-
                                          section, designated representative                       Jung, U.S. Department of Education, 400                assistance-non-public-schools/.
                                          means a Coast Guard Patrol                               Maryland Avenue SW, Washington, DC                        As described in more detail below,
                                          Commander, including a Coast Guard                       20202. Email: EANS@ed.gov.                             the Secretary of Education (Secretary) is
                                          coxswain, petty officer, or other officer                   If you use a telecommunications                     establishing final requirements for the
                                          operating a Coast Guard vessel and a                     device for the deaf (TDD) or a text                    ARP EANS program to (1) make clear
                                          Federal, State, and local officer                        telephone (TTY), call the Federal Relay                that, with the exceptions noted above,
                                          designated by or assisting the Captain of                Service (FRS), toll free, at 1–800–877–                the requirements of the EANS program
                                          the Port Sector Ohio Valley (COTP) in                    8339.                                                  authorized under section 312(d) of
                                          the enforcement of the safety zone.                                                                             division M of the CRRSA Act (CRRSA
                                            (c) Regulations. (1) Under the general                 SUPPLEMENTARY INFORMATION:                             EANS) apply to ARP EANS, and (2)
                                          safety zone regulations in subpart C of                     Purpose of Program: Section 2002 of                 establish guidelines to determine that a
                                          this part, you may not enter the safety                  the ARP Act, titled ‘‘Emergency                        non-public school enrolls a significant
                                          zone described in paragraph (a) of this                  Assistance to Non-Public Schools,’’                    percentage of students from low-income
                                          section unless authorized by the COTP                    appropriates $2,750,000,000 for the                    families and is most impacted by the
                                          or the COTP’s designated representative.                 Department to make allocations to                      COVID–19 emergency.
                                            (2) To seek permission to enter,                       Governors under the ARP EANS                              Prior to issuing these final
                                          contact the COTP or the COTP’s                           program ‘‘to provide services or                       requirements, the Department invited
                                          representative by VHF–FM radio                           assistance to non-public schools that                  comment regarding implementation of
                                          channel 16 or phone at 1–800–253–                        enroll a significant percentage of                     the requirement ‘‘to provide services or
                                          7465. Those in the safety zone must                      [students from low-income families] and                assistance to non-public schools that
                                          comply with all lawful orders or                         are most impacted by the [COVID–19]                    enroll a significant percentage of
                                          directions given to them by the COTP or                  emergency.’’ 1                                         [students from low-income families] and
                                          the COTP’s designated representative.                       Program Authority: ARP Act, Public                  are most impacted by the [COVID–19]
                                            (d) Enforcement periods. This rule                     Law 117–2, March 11, 2021.                             emergency’’ as part of the Notice
                                          will be enforced from 2 p.m. until 6:30                     Background: The ARP Act extends the                 Inviting Applications and Announcing
                                          p.m. on August 6, 2021, from noon until                  EANS program authorized under section                  Allocations for the Emergency
                                          5 p.m. on August 7, 2021, and from 4:30                  312(d) of division M of the Coronavirus                Assistance to Non-Public Schools
                                          p.m. until 7 p.m. on August 8, 2021.                     Response and Relief Supplemental                       Program Under the American Rescue
                                            Dated: July 1, 2021.                                   Appropriations Act, 2021 (CRRSA Act),                  Plan Act of 2021, issued on April 12,
                                          A.M. Beach,                                              with two exceptions: (1) A State                       2021.2 The Department received 66
                                          Captain, U.S. Coast Guard, Captain of the                educational agency (SEA) may only                      comments, which it reviewed and
                                          Port Sector Ohio Valley.                                 provide services or assistance under                   considered in developing these final
                                          [FR Doc. 2021–14644 Filed 7–12–21; 8:45 am]
                                                                                                   ARP EANS to non-public schools that                    requirements.
                                                                                                   enroll a significant percentage of                        With respect to the significant poverty
                                          BILLING CODE 9110–04–P
                                                                                                   students from low-income families and                  percentage, comments generally fell into
                                                                                                   are most impacted by the COVID–19                      three groups that advocated for: (1)
                                                                                                   emergency, and (2) an SEA may not use                  Establishing a specific significant
                                          DEPARTMENT OF EDUCATION                                                                                         poverty percentage, as high as 75
                                                                                                   ARP EANS funds to provide
                                          34 CFR Chapter II                                        reimbursements to any non-public                       percent; (2) prioritizing schools in the
                                                                                                   school.                                                same manner as under the CRRSA
                                          RIN 1810–AB63                                               Under the ARP EANS program,                         EANS program; or (3) providing a State
                                                                                                   consistent with section 312(d)(1) of                   discretion to determine the significant
                                          American Rescue Plan Act Emergency                       division M of the CRRSA Act, the                       poverty percentage for non-public
                                          Assistance to Non-Public Schools
                                                                                                   Department will allot funds by formula                 schools within the State. Commenters
                                          Program
                                                                                                   to each Governor with an approved                      advocating for a specific high poverty
                                          AGENCY: Office of Elementary and                         application based on the State’s relative              percentage did so on the premise that it
                                          Secondary Education, Department of                       share of children aged 5 through 17 who                would ensure that resources are targeted
                                          Education.                                               are from families at or below 185                      to the most under-resourced
                                          ACTION: Final requirements.                              percent of the 2020 Federal poverty                    communities, which they assert is
                                                                                                   level and enrolled in non-public                       consistent with congressional intent.
                                          SUMMARY: The U.S. Department of                          schools, as determined by the                          Multiple commenters noted that a 75-
                                          Education (Department) establishes                       Department on the basis of non-public                  percent poverty percentage would align
                                          requirements for the American Rescue                     school enrollment data from the U.S.                   with the definition of a ‘‘high-poverty
                                          Plan Emergency Assistance to Non-                        Census Bureau’s American Community                     school’’ used by the National Center for
                                          Public Schools (ARP EANS) program                        Survey (ACS) Public Use Microdata                      Education Statistics and the threshold
                                          under the American Rescue Plan Act of                    Sample (PUMS) for 2015–2019, which                     for serving public schools in rank order,
                                          2021 (ARP Act). This document is                         can be accessed here: https://                         without regard to grade spans,
                                          intended to clarify the requirements                     www.census.gov/programs-surveys/acs/                   applicable to within-district allocations
                                          applicable to the ARP EANS program,                      microdata.html. The amount available                   under title I, part A (title I) of the
                                          including the requirement to provide                                                                            Elementary and Secondary Education




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                                          services or assistance to non-public                        1 Under these final requirements, ‘‘students from
                                                                                                                                                          Act of 1965 (ESEA) (see section
                                          schools that enroll a significant                        low-income families’’ has the same meaning as          1113(a)(3)(A) of the ESEA). By contrast,
                                          percentage of students from low-income                   ‘‘low-income students’’ under section 2002(a) of the
                                                                                                   ARP Act. ‘‘Students from low-income families’’ is      other commenters asserted that an
                                          families and are most impacted by the                    a term used in section 312(d) of division M of the
                                          novel Coronavirus Disease 2019                           Coronavirus Response and Relief Supplemental             2 https://oese.ed.gov/files/2021/04/FINAL-ARP-

                                          (COVID–19) emergency.                                    Appropriations Act, 2021.                              EANS-notice-4.12.21.pdf.



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                                                              Federal Register / Vol. 86, No. 131 / Tuesday, July 13, 2021 / Rules and Regulations                                          36649

                                          excessively rigorous, one-size-fits-all                  provide reimbursements to a non-public                percentage. Finally, the non-public
                                          threshold would be inappropriate in the                  school.                                               school must be most impacted by the
                                          context of non-public schools and their                     Reasons: The final requirements                    COVID–19 emergency based on the
                                          States’ specific circumstances and                       clarify for States that, except for the two           State’s factor(s).
                                          therefore recommended that States be                     exceptions noted in the statute, all of                  The final requirements reflect nearly
                                          given discretion to determine what                       the requirements in the CRRSA EANS                    all the comments we received. They
                                          constitutes a significant poverty                        program apply to ARP EANS funds.                      establish a specific significant poverty
                                          percentage. In support of a more flexible                Making this clarification ensures that                percentage that a State may adopt
                                          approach, one State provided data                        States and non-public schools are aware               without further explanation, although
                                          indicating that a significant number of                  of all EANS program requirements,                     that percentage is not as high as some
                                          non-public schools that applied under                    including statutory timelines,                        commenters recommended for reasons
                                          CRRSA EANS would be ineligible under                     assurances required in a Governor’s                   discussed below. They also afford a
                                          ARP EANS even with a poverty                             application, and other application                    State some discretion to propose an
                                          percentage as low as 30 percent. Taking                  requirements for both the Governor’s                  alternate significant poverty percentage
                                          these comments into account, the                         and a non-public school’s application.                based on circumstances within the
                                          Department sought to establish a                         The final requirements also clarify the               State, as most commenters suggested.
                                          specific significant poverty percentage                  allowable services and activities that an             The final requirements do not, however,
                                          while also recognizing that there are                    SEA may provide to non-public schools.                adopt the view of some commenters
                                          State circumstances that may warrant a                   Significantly, they make clear that,                  who suggested implementing ARP
                                          different significant poverty percentage                 unlike under CRRSA EANS, an SEA                       EANS in the same manner as CRRSA
                                          in a given State.                                        may not use ARP EANS funds to                         EANS to reduce burden on SEAs and
                                             In terms of determining the non-                      provide reimbursements to any non-                    non-public schools. We believe the ARP
                                          public schools most impacted by the                      public school.                                        Act does not support this suggestion,
                                          COVID–19 emergency, commenters                                                                                 because it specifically changed the
                                                                                                   Determining Non-Public Schools To Be                  language in the CRRSA Act from
                                          generally noted that the Department’s                    Served
                                          Frequently Asked Questions: Emergency                                                                          ‘‘prioritize services or assistance to non-
                                          Assistance to Non-Public Schools                         Determining Non-Public Schools That                   public schools that enroll low-income
                                          (EANS) Program as Authorized by the                      May Receive Services or Assistance                    students and are most impacted by the
                                          Coronavirus Response and Relief                                                                                [COVID–19] emergency’’ to ‘‘provide
                                                                                                      Statute: Under section 2002(a) of the              services or assistance to non-public
                                          Supplemental Appropriations Act, 2021                    ARP Act, services or assistance to non-
                                          (CRRSA Act) (EANS FAQs) 3 provided                                                                             schools that enroll a significant
                                                                                                   public schools under the ARP EANS                     percentage of low-income students and
                                          an appropriate range of factors. The                     program are limited to ‘‘non-public
                                          final requirements include a majority of                                                                       are most impacted by the [COVID–19]
                                                                                                   schools that enroll a significant                     emergency.’’ The ARP Act language
                                          the factors identified in the                            percentage of [students from low-
                                          Department’s previously issued EANS                                                                            differs from the CRRSA Act in two
                                                                                                   income families] and are most impacted                significant respects: (1) Rather than
                                          FAQs.                                                    by the [COVID–19] emergency.’’                        establishing a ‘‘priority’’ for serving
                                          General Requirements                                        Final Requirements: The final                      schools with students from low-income
                                                                                                   requirements require a Governor, in his               families that then permits other non-
                                          Applicability of CRRSA EANS                              or her application for ARP EANS funds,                public schools to be served, the ARP Act
                                          Requirements                                             to identify the significant poverty                   requires a non-public school to enroll a
                                            Statute: Section 2002(a) of the ARP                    percentage and the factors of COVID–19                percentage of students from low-income
                                          Act appropriates an additional                           impact the State will use, after approval             families, and (2) the ARP Act requires
                                          $2,750,000,000 for making allocations to                 by the Secretary, to determine which                  that poverty percentage to be
                                          Governors under the EANS program to                      non-public schools are eligible to                    ‘‘significant.’’ The final requirements
                                          provide services or assistance to non-                   receive services or assistance. In                    reflect this change.
                                          public schools that enroll a significant                 addition to meeting the definition of a
                                          percentage of students from low-income                   non-public school in section 316(6) of                Enrollment of a Significant Percentage
                                          families and are most impacted by the                    division M of the CRRSA Act and the                   of Students From Low-Income Families
                                          COVID–19 emergency. Section 2002(b)                      eligibility requirement in section                      Statute: Under section 2002(a) of the
                                          further clarifies that the funds provided                312(d)(9) of division M of the CRRSA                  ARP Act, services or assistance to non-
                                          under section 2002(a) may not be used                    Act, a non-public school must meet or                 public schools under the ARP EANS
                                          to provide reimbursements to any non-                    exceed the State’s significant poverty                program is limited to ‘‘non-public
                                          public school.                                           percentage and be most impacted by the                schools that enroll a significant
                                            Final Requirements: These                              COVID–19 emergency.                                   percentage of [students from low-
                                          requirements make clear that all of the                     Reasons: This requirement clarifies                income families] and are most impacted
                                          provisions of the CRRSA EANS program                     those non-public schools that are                     by the [COVID–19] emergency.’’
                                          also apply to the ARP EANS program                       eligible to receive services or assistance              Final Requirements: Under the final
                                          with two exceptions: (1) An SEA may                      under the ARP EANS program. A non-                    requirements, a non-public school is
                                          provide services or assistance under                     public school must meet the definition                considered to enroll a significant
                                          ARP EANS only to an eligible non-                        of ‘‘non-public school’’ in section 316(6)            percentage of students from low-income
                                          public school that enrolls a significant                 of division M of the CRRSA Act and the                families, as defined in these
                                          percentage of students from low-income                   eligibility requirement in section                    requirements, if the percentage of




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                                          families and is most impacted by the                     312(d)(9) of division M of the CRRSA                  students from low-income families
                                          COVID–19 emergency, and (2) an SEA                       Act. In addition, the percentage of                   enrolled in the school meets or exceeds
                                          may not use ARP EANS funds to                            students from low-income families in                  40 percent, based on the data source(s)
                                                                                                   the non-public school must meet or                    selected by the State under these
                                            3 https://oese.ed.gov/files/2021/03/Final-EANS-        exceed either 40 percent or the State’s               requirements. Alternatively, a State may
                                          FAQ-2.0-3.19.21.pdf.                                     approved alternate significant poverty                propose and, if approved by the


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                                          36650               Federal Register / Vol. 86, No. 131 / Tuesday, July 13, 2021 / Rules and Regulations

                                          Secretary, use an alternate significant                     Finally, the final requirements also               reasonable way to identify communities
                                          poverty percentage based on                              permit a State to support an alternate                most impacted by the COVID–19
                                          circumstances in the State, which may                    significant poverty percentage based on               emergency. Additionally, students are
                                          be (1) the State’s average percentage of                 factors that the State demonstrates                   facing significant academic challenges
                                          students from low-income families in                     reflect significant poverty. For example,             as a result of the lost instructional time,5
                                          public and non-public schools, (2) the                   a State might submit data showing the                 and social, emotional, and mental
                                          average percentage of students from                      relative rates of poverty in non-public               health impacts attributable to the
                                          low-income families in non-public                        schools as compared to public schools,                disruption of instruction caused by the
                                          schools in the State that, for example,                  or the percentage of non-public schools               COVID–19 emergency. Depending upon
                                          applied for or participated in the                       that would be excluded at different                   the specific circumstances, these issues
                                          CRRSA EANS program, or (3) other                         poverty percentages, and explain why                  may be more pronounced in some non-
                                          factors that the State demonstrates                      those data support the requested                      public schools than others. Finally, the
                                          support an alternate significant poverty                 alternate percentage.                                 COVID–19 emergency has had a
                                          percentage.                                                 We believe these alternatives address              disproportionate economic impact on
                                             Reasons: A 40-percent poverty                         some commenters’ concerns that a State                many communities,6 including high
                                          percentage has long been recognized as                   should have the opportunity to propose                rates of unemployment, which may
                                          a measure of significant poverty to                      a significant poverty percentage that                 have a concomitant impact on non-
                                          operate a schoolwide program under                       reflects circumstances within the State.              public schools serving such
                                          title I of the ESEA. In the context of title             We know that poverty percentages vary                 communities.
                                          I, 40-percent poverty is the statutory                   considerably among States and between                    Given the wide-ranging impact of the
                                          threshold for a title I school to use title              public and non-public schools. The                    COVID–19 emergency on schools and
                                          I funds to upgrade the entire                            alternatives permit a State to propose a              communities throughout the Nation, we
                                          educational program of a school and                      significant poverty percentage relative               recognize that there is no single factor
                                          serve all students. (See section                         to poverty within the State.                          with which to assess the impact of the
                                          1114(a)(1)(A) of the ESEA). Given                        Most Impacted by the COVID–19                         COVID–19 emergency on non-public
                                          Congress’ recognition of 40 percent as                   Emergency Statute                                     schools. Thus, in addition to one or
                                          significant within the context of title I,                                                                     more of the above factors, the final
                                          we believe it presents a reasonable                         Under section 2002(a) of the ARP Act,              requirements allow an SEA to use other
                                          threshold with respect to the ARP EANS                   services or assistance to non-public                  factors included in the State’s approved
                                          program as well.                                         schools under the ARP EANS program                    application to determine the non-public
                                             We recognize, however, that there                     is limited to ‘‘non-public schools that               schools most impacted by the COVID–
                                          may be circumstances in the State that                   enroll a significant percentage of                    19 emergency.
                                          may warrant establishing a different                     [students from low-income families] and                  We recognize that non-public schools
                                          significant percentage of students from                  are most impacted by the [COVID–19]                   often draw students from communities
                                          low-income families for non-public                       emergency.’’                                          other than the one in which they are
                                                                                                      Final Requirements: Under the final                located. Thus, the factors in the final
                                          schools. As a result, under the final
                                                                                                   requirements, an SEA determines if a                  requirements related to per capita
                                          requirements, a State has the option of
                                                                                                   non-public school is most impacted by                 COVID–19 infections and deaths as well
                                          using an alternate significant poverty
                                                                                                   the COVID–19 emergency based on one                   as economic impact are relative to the
                                          percentage upon approval by the
                                                                                                   or more of the following factors: (1) The             community or communities served by a
                                          Secretary based on factors in the State.
                                                                                                   number of COVID–19 infections per                     non-public school, which the SEA has
                                          To receive approval, a State must
                                                                                                   capita in the community or                            flexibility to determine.
                                          provide data and a supporting rationale
                                                                                                   communities served by the non-public                     The final requirements reflect many of
                                          to justify the use of such alternative as
                                                                                                   school; (2) the number of COVID–19                    the comments recommending that the
                                          part of its ARP EANS application.
                                                                                                   deaths per capita in the community or                 Department use the factors in the EANS
                                             The final requirements permit a State                 communities served by the non-public
                                          to apply to use an alternate significant                                                                       FAQs and give States a range of options.
                                                                                                   school; (3) data on the academic impact               Some commenters urged that the impact
                                          poverty percentage based on the State’s                  of lost instructional time and the social,
                                          average percentage of students from                                                                            of the COVID–19 emergency not be
                                                                                                   emotional, or mental health impacts                   allowed to outweigh poverty. The final
                                          low-income families in both public and                   attributable to the disruption of
                                          private schools. This option recognizes                                                                        requirements use a majority of the
                                                                                                   instruction caused by the COVID–19                    factors in the EANS FAQs and permit an
                                          that the determination of what                           emergency; or (4) the economic impact
                                          constitutes a significant poverty                                                                              SEA to add others included in the
                                                                                                   of the COVID–19 emergency on the                      State’s approved application for EANS
                                          percentage may vary from State to State                  community or communities served by
                                          based on a particular State’s relative                                                                         funding. They also make clear that a
                                                                                                   the non-public school. In addition to                 non-public school must meet both the
                                          level of poverty.                                        using one or more of these factors, an
                                             The final requirements also allow a                   SEA may use other factors included in                 available at https://covid.cdc.gov/covid-data-
                                          State to apply to use an alternate                       the State’s approved application to                   tracker/, which includes community data on
                                          significant poverty percentage based on,                 determine which non-public schools are                reported COVID–19 cases and deaths.
                                          for example, the average percentage of                   most impacted by the COVID–19
                                                                                                                                                            5 We note that section 312(d)(4)(L) of division M

                                          students from low-income families in                     emergency.
                                                                                                                                                         of the CRRSA Act specifically authorizes the use of
                                          non-public schools in the State that                                                                           EANS funds to address ‘‘learning loss,’’ which the
                                                                                                      Reasons: The final requirements                    final requirements refer to as the ‘‘academic impact
                                          applied for or participated in the                       afford a State several options from                   of lost instructional time.’’




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                                          CRRSA EANS program. Using an                             which to choose in assessing impact.                     6 See, e.g., Aaron Klein & Ember Smith,

                                          average percentage of poverty in non-                    COVID–19 infection and death rates are                Explaining the Economic Impact of COVID–19: Core
                                          public schools could allow a State to                                                                          Industries and the Hispanic Workforce, Brookings
                                                                                                   readily available 4 and provide a                     Institution (Feb. 5, 2021), https://
                                          establish an appropriate significant                                                                           www.brookings.edu/research/explaining-the-
                                          poverty percentage relative to non-                        4 The Centers for Disease Control and Prevention    economic-impact-of-covid-19-core-industries-and-
                                          public schools in the State.                             provides a COVID Data Tracker on its website,         the-hispanic-workforce/.



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                                                              Federal Register / Vol. 86, No. 131 / Tuesday, July 13, 2021 / Rules and Regulations                                       36651

                                          State’s significant poverty percentage                   through 17 because that is the age range              enrolled in a non-public school, an SEA
                                          and be most impacted by the COVID–19                     section 312(d)(1)(B) of division M of the             may use one or more of the following
                                          emergency, as required by the ARP Act.                   CRRSA Act requires the Department to                  sources of data, provided the poverty
                                                                                                   use to allocate EANS funds to States.                 threshold is consistent across sources
                                          Transparency
                                                                                                   Additionally, that age range is used in               and does not exceed 185 percent of the
                                             Statute: Section 312(d)(2)(B)(i) of the               other contexts involving Federal                      2020 Federal poverty level: (1) Free or
                                          CRRSA Act requires an SEA to                             education funds, including allocating                 reduced-price lunch data; (2) data from
                                          ‘‘distribute information about the                       funds to local educational agencies and               the E-rate program; (3) data from a
                                          [EANS] program to non-public schools                     determining the proportional share for                different source, such as scholarship or
                                          and make the information . . . easily                    equitable services under title I of the               financial assistance data; or (4) data
                                          available.’’ Under 20 U.S.C. 1221e-3, the                ESEA. (See, for example, sections                     from a survey developed by the SEA.
                                          Secretary has the authority to                           1117(c)(1) and 1124(c)(1) of the ESEA).                  Reasons: Free and reduced-price
                                          promulgate rules governing the                           The Department chose to set a limit on                lunch data is the source of poverty data
                                          programs administered by the                             the poverty threshold for the family of               most aligned to 185 percent of the 2020
                                          Department.                                              a student to be counted as low-income                 Federal poverty level. The Department
                                             Final Requirements: Following                         at 185 percent of the 2020 Federal                    recognizes, however, that many non-
                                          approval of the Governor’s ARP EANS                      poverty level for several reasons.                    public schools do not participate in the
                                          application by the Secretary, an SEA                     Section 312(d)(1)(B) of division M of the             Federal meals program. E-rate data are
                                          must publish on its website, on or                       CRRSA Act requires the Department to                  similarly aligned but also may not be
                                          before the date it makes applications for                allocate EANS funds to each State based               available for many non-public schools.
                                          services or assistance available to non-                 on the proportion of children aged 5                  Accordingly, the Department includes
                                          public schools, the State’s approved (1)                 through 17 ‘‘at or below 185 percent of               other sources of data for an SEA to
                                          minimum percentage to determine                          poverty who are enrolled in non-public                choose that should be more readily
                                          whether a non-public school enrolls a                    schools in the State.’’ The threshold to              available to non-public schools. An SEA
                                          significant percentage of students from                  qualify for free and reduced-price meals              may also send a survey to non-public
                                          low-income families; (2) source(s) of                    under the Richard B. Russell National                 school families to collect poverty data
                                          poverty data to be used in determining                   School Lunch Act (42 U.S.C. 1751 et                   for use in meeting the SEA’s threshold
                                          counts of students from low-income                       seq.) is 185 percent of the Federal                   for significant percentage of students
                                          families in a non-public school; and (3)                 poverty level, and eligibility for free and           from low-income families, provided the
                                          factors to determine whether a non-                      reduced-price meals also is the poverty               SEA has sufficient time to distribute,
                                          public school is most impacted by the                    measure most often used for                           collect, and compile data from the
                                          COVID–19 emergency.                                      determining within-district allocations               surveys.
                                             Reasons: We believe transparency                      and for identifying the economically                     The final requirements afford an SEA
                                          regarding the significant poverty                        disadvantaged subgroup for                            some latitude to select one or more
                                          percentage, sources of poverty data, and                 accountability and reporting purposes                 sources of poverty data, provided the
                                          factors for determining schools most                     under title I of the ESEA. One hundred                poverty threshold is consistent among
                                          impacted by the COVID–19 emergency                       eighty-five percent of the Federal                    sources and does not exceed 185
                                          that a State uses are important given the                poverty level is also the threshold to                percent of the Federal poverty level.
                                          potential variations among States.                       qualify for the E-rate program                        Such latitude was particularly requested
                                          Transparency would ensure that all                       administered by the Federal                           by commenters representing the non-
                                          stakeholders are aware of the specific                   Communications Commission (47 CFR                     public school community, given that not
                                          criteria each State plans to apply in                    54.500, 54.505(b)). Finally, several                  every school has the same poverty data
                                          determining which non-public schools                     commenters recommended 185 percent                    on its families. The Department
                                          receive services or assistance under the                 of the Federal poverty level as the                   encourages an SEA to consult with non-
                                          ARP EANS program.                                        threshold for family income. For these                public school officials regarding
                                                                                                   reasons, the Department believes it is                available sources of poverty data.
                                          Determining Low-Income Counts                            the appropriate standard of low-income                Additionally, given that not all non-
                                          Low-Income Threshold                                     status for use in determining what                    public schools have access to the same
                                                                                                   constitutes a significant percentage of               poverty data, the Department
                                             Statute: Under section 2002(a) of the                 students from low-income families in                  encourages an SEA to permit multiple
                                          ARP Act, services or assistance to non-                  non-public schools in order to provide                sources of data, among schools or
                                          public schools under the ARP EANS                        services or assistance under the ARP                  within a school, provided those data use
                                          program are limited to ‘‘non-public                      EANS program.                                         a consistent poverty threshold.
                                          schools that enroll a significant
                                          percentage of [students from low-                        Sources of Data on Family Income                      Final Requirements
                                          income families] and are most impacted                     Statute: Under section 2002(a) of the                 The Secretary establishes the
                                          by the [COVID–19] emergency.’’ Neither                   ARP Act, services or assistance to non-               following final requirements for the
                                          the ARP Act nor the CRRSA Act defines                    public schools under the ARP EANS                     ARP EANS program:
                                          ‘‘students from low-income families’’ or                 program are limited to ‘‘non-public                     (a) In general. A State educational
                                          ‘‘low-income students.’’                                 schools that enroll a significant                     agency (SEA) must provide services or
                                             Final Requirements: To be counted as                  percentage of [students from low-                     assistance under the Emergency
                                          a student from a low-income family for                   income families] and are most impacted                Assistance to Non-Public Schools
                                          purposes of these requirements, a                        by the [COVID–19] emergency.’’ Neither                (EANS) program, as authorized by the




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                                          student must be aged 5 through 17 from                   the ARP Act nor the CRRSA Act defines                 American Rescue Plan Act of 2021 (ARP
                                          a family whose income does not exceed                    the term ‘‘students from low-income                   Act), in accordance with the
                                          185 percent of the 2020 Federal poverty                  families’’ or ‘‘low-income students.’’                requirements applicable to the EANS
                                          level.                                                     Final Requirements: Under the final                 program under section 312(d) of
                                             Reasons: The Department defined the                   requirements, to obtain a count of                    division M of the Coronavirus Response
                                          count of children as those aged 5                        students from low-income families                     and Relief Supplemental


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                                          36652               Federal Register / Vol. 86, No. 131 / Tuesday, July 13, 2021 / Rules and Regulations

                                          Appropriations Act, 2021 (CRRSA Act),                      (D) The economic impact of the                      impracticable, unnecessary, or contrary
                                          except that—                                             COVID–19 emergency on the                             to the public interest.’’ (5 U.S.C.
                                             (1) An SEA may provide such services                  community or communities served by                    553(b)(B)).
                                          or assistance only to an eligible non-                   the non-public school.                                   Here, there is good cause for waiving
                                          public school that enrolls a significant                   (ii) In addition to using one or more               notice and comment rulemaking. Notice
                                          percentage of students from low-income                   of the factors identified in paragraph                and comment rulemaking would be
                                          families and is most impacted by the                     (b)(3)(i), an SEA may use other factors               impracticable because the time involved
                                          COVID–19 emergency; and                                  included in the State’s approved                      would preclude emergency funds being
                                             (2) An SEA may not use such funds                     application for EANS funding under the                available to meet exigent needs of non-
                                          to provide reimbursements to any non-                    ARP Act to determine that a non-public                public schools resulting from the
                                          public school.                                           school is most impacted by the COVID–                 COVID–19 emergency, including the
                                             (b) Determining non-public schools to                 19 emergency.                                         provision of services to address the
                                          be served.                                                 (4) An SEA must publish on its                      academic impact of lost instructional
                                             (1) To provide services or assistance                 website, on or before the date it makes               time among non-public school students.
                                          to a non-public school under paragraph                   applications for EANS services or                     The COVID–19 emergency continues to
                                          (a), an SEA must determine, consistent                   assistance under the ARP Act available                present extraordinary circumstances,
                                          with the State’s approved application                    to non-public schools, the State’s                    including widespread school closures,
                                          for EANS funding under the ARP Act,                      approved—                                             significant loss of instructional time,
                                          that the school—                                           (i) Minimum percentage to determine                 and trauma for students, educators, and
                                             (i) Enrolls a significant percentage of               whether a non-public school enrolls a                 other staff.
                                          students from low-income families in                     significant percentage of students from                  The final requirements provide
                                          accordance with paragraphs (b)(2) and                    low-income families;                                  reasonable parameters to address
                                          (c) of this section; and                                   (ii) The source(s) of poverty data the              ambiguities regarding how to provide
                                             (ii) Is most impacted by the COVID–                   State will use to determine counts of                 services or assistance to eligible non-
                                          19 emergency in accordance with                          students from low-income families in a                public schools that enroll a significant
                                          paragraph (b)(3) of this section.                        non-public school; and                                percentage of students from low-income
                                             (2) A non-public school enrolls a                       (iii) Factors to determine whether a                families and are most impacted by the
                                          significant percentage of students from                  non-public school is most impacted by                 COVID–19 emergency. Accordingly, the
                                          low-income families if the percentage of                 the COVID–19 emergency.                               final requirements are critical to
                                          students from low-income families                          (c) Determining low-income counts.
                                                                                                                                                         ensuring that SEAs effectively and
                                          enrolled in such school meets or                         (1) To be counted as a student from a
                                                                                                                                                         timely implement the ARP EANS
                                          exceeds—                                                 low-income family for purposes of this
                                                                                                                                                         program. In addition, the Department
                                             (i) 40 percent; or                                    section, a student must be aged 5
                                             (ii) An alternate significant percentage                                                                    believes it is important to make clear the
                                                                                                   through 17 from a family whose income
                                          approved by the Secretary in the State’s                                                                       continued applicability of EANS
                                                                                                   does not exceed 185 percent of the 2020
                                          application for EANS funding under the                                                                         requirements under the CRRSA Act,
                                                                                                   Federal poverty level.
                                          ARP Act that is based on circumstances                     (2) To obtain a count of students from              except as otherwise provided in the
                                          in the State, which may be—                              low-income families enrolled in a non-                ARP Act. However, going through the
                                             (A) The State’s average percentage of                 public school under paragraph (c)(1), an              full rulemaking process would delay the
                                          students from low-income families in                     SEA may use one or more of the                        ability of SEAs to provide services or
                                          public and non-public schools;                           following sources of data, provided the               assistance to eligible non-public schools
                                             (B) The average percentage of students                poverty threshold is consistent across                using ARP EANS funds, which are
                                          from low-income families in non-public                   sources—                                              emergency funds intended to meet the
                                          schools in the State that, for example,                    (i) Data on student eligibility for free            immediate needs of non-public schools,
                                          applied for or participated in the EANS                  or reduced-price lunch under the                      including their students and teachers.
                                          program as authorized by the CRRSA                       Richard B. Russell National School                    Establishing these final requirements
                                          Act; or                                                  Lunch Act (43 U.S.C. 1751 et seq.);                   now, without the delay of notice and
                                             (C) Other factors that the State                        (ii) Data from the E-rate program                   comment rulemaking, enables SEAs to
                                          demonstrates support an alternate                        administered by the Federal                           effectively use ARP EANS funds to
                                          significant poverty percentage.                          Communications Commission (47 CFR                     provide services or assistance to non-
                                             (3)(i) A non-public school is most                    54.500, 54.505(b));                                   public schools to address the immediate
                                          impacted by the COVID–19 emergency                         (iii) Data from a different source, such            safety and academic needs of students
                                          based on one or more of the following                    as scholarship or financial assistance                and help such schools safely return to
                                          factors—                                                 data; or                                              or continue in-person instruction.
                                             (A) The number of COVID–19                              (iv) Data from a survey developed by                   The Department has moved with
                                          infections per capita in the community                   the SEA.                                              urgency to publish this document in an
                                          or communities served by the non-                                                                              expedited fashion to ensure timely
                                                                                                   Waiver of Notice and Comment                          availability of funds to non-public
                                          public school;
                                             (B) The number of COVID–19-related                    Rulemaking and Delayed Effective Date                 schools. The ARP Act was signed into
                                          deaths per capita in the community or                      Under the Administrative Procedure                  law on March 11, 2021. Just one month
                                          communities served by the non-public                     Act (APA) (5 U.S.C. 551–559), the                     later, on April 12, 2021, the Department
                                          school;                                                  Department generally offers interested                published a request for information
                                             (C) Data on the academic impact of                    parties notice of and the opportunity to              from the public to obtain comments that




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                                          lost instructional time and the social,                  comment on proposed requirements.                     were due on April 26, 2021. After
                                          emotional, and mental health impacts                     However, the APA provides that an                     reviewing and considering the 66
                                          on students attending the non-public                     agency is not required to conduct notice              comments received, the Department is
                                          school attributable to the disruption of                 and comment rulemaking ‘‘when the                     publishing this document about two
                                          instruction caused by the COVID–19                       agency for good cause finds . . . that                months after the comments were
                                          emergency; or                                            notice and public procedure thereon are               received.


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                                                              Federal Register / Vol. 86, No. 131 / Tuesday, July 13, 2021 / Rules and Regulations                                         36653

                                             Additionally, as noted above, the                     Budget (OMB). Section 3(f) of Executive               desired behavior, or providing
                                          Department invited comment regarding                     Order 12866 defines a ‘‘significant                   information that enables the public to
                                          implementation of the requirement ‘‘to                   regulatory action’’ as an action likely to            make choices.
                                          provide services or assistance to non-                   result in a rule that may—                              Executive Order 13563 also requires
                                          public schools that enroll a significant                    (1) Have an annual effect on the                   an agency ‘‘to use the best available
                                          percentage of [students from low-                        economy of $100 million or more, or                   techniques to quantify anticipated
                                          income families] and are most impacted                   adversely affect the economy, a sector of             present and future benefits and costs as
                                          by the [COVID–19] emergency’’ as part                    the economy, productivity, competition,               accurately as possible.’’ The Office of
                                          of the Notice Inviting Applications and                  jobs, the environment, public health or               Information and Regulatory Affairs has
                                          Announcing Allocations for the                           safety, or State, local, or Tribal                    emphasized that these techniques may
                                          Emergency Assistance to Non-Public                       governments or communities, in a                      include ‘‘identifying changing future
                                          Schools Program Under the American                       material way (also referred to as                     compliance costs that might result from
                                          Rescue Plan Act of 2021, issued on                       ‘‘economically significant’’ regulations);            technological innovation or anticipated
                                          April 12, 2021. The Department                              (2) Create serious inconsistency or                behavioral changes.’’
                                          reviewed and considered the comments                     otherwise interfere with an action taken                The Department has assessed the
                                          received in response to that notice in                   or planned by another agency;                         potential costs and benefits, both
                                          the development of these final                              (3) Materially alter the budgetary                 quantitative and qualitative, of this
                                          requirements. That prior comment                         impacts of entitlements, grants, user                 regulatory action, and we are issuing
                                          process and the Department’s                             fees, or loan programs or the rights and              these final requirements only on a
                                          responsiveness to those comments                         obligations of recipients thereof; or                 reasoned determination that their
                                          mitigate the need for notice-and-                           (4) Raise novel legal or policy issues             benefits justify their costs. In choosing
                                          comment rulemaking in this context.                      arising out of legal mandates, the                    among alternative regulatory
                                             The APA also requires that                            President’s priorities, or the principles             approaches, we selected those
                                          regulations be published at least 30 days                stated in the Executive order.                        approaches that would maximize net
                                          before their effective date, unless the                     This regulatory action is an                       benefits. Based on the analysis that
                                          agency has good cause to implement its                   economically significant regulatory                   follows and the reasons stated
                                          regulations sooner. (5 U.S.C. 553(d)(3)).                action subject to review by OMB under                 elsewhere in this document, the
                                          Again, because the ARP EANS funds are                    section 3(f) of Executive Order 12866.                Department believes that the final
                                          needed to address the immediate needs                    Pursuant to the Congressional Review                  requirements are consistent with the
                                          of students, educators, and schools due                  Act (5 U.S.C. 801 et seq.), OMB’s Office              principles in Executive Order 13563.
                                          to the COVID–19 emergency, the                           of Information and Regulatory Affairs                   We also have determined that this
                                          Secretary also has good cause to waive                   designated this rule as a ‘‘major rule,’’             regulatory action does not unduly
                                          the 30-day delay in the effective date of                as defined by 5 U.S.C. 804(2).                        interfere with State, local, or Tribal
                                          these requirements under 5 U.S.C.                           We have also reviewed these                        governments in the exercise of their
                                          553(d)(3).                                               regulations under Executive Order                     governmental functions.
                                                                                                   13563, which supplements and                            In this regulatory impact analysis, we
                                             Under the Congressional Review Act
                                                                                                   explicitly reaffirms the principles,                  discuss the need for regulatory action,
                                          (CRA), a major rule may take effect no
                                                                                                   structures, and definitions governing                 the potential costs and benefits, and net
                                          sooner than 60 calendar days after an
                                                                                                   regulatory review established in                      budget impacts.
                                          agency submits a CRA report to
                                                                                                   Executive Order 12866. To the extent                    Elsewhere, under Paperwork
                                          Congress or the rule is published in the
                                                                                                   permitted by law, Executive Order                     Reduction Act of 1995, we identify and
                                          Federal Register, whichever is later. (5
                                                                                                   13563 requires that an agency—                        explain burdens specifically associated
                                          U.S.C. 801(a)(3)(A)). However, the CRA
                                                                                                      (1) Propose or adopt regulations only              with information collection
                                          creates limited exceptions to this
                                                                                                   upon a reasoned determination that                    requirements.
                                          requirement. (See 5 U.S.C. 801(c), 808).
                                                                                                   their benefits justify their costs                    Need for Regulatory Action
                                          Section 808(2) provides that ‘‘any rule
                                                                                                   (recognizing that some benefits and
                                          which an agency for good cause finds                                                                             These final requirements are intended
                                                                                                   costs are difficult to quantify);
                                          (and incorporates the finding and a brief                                                                      to clarify the provision of services or
                                                                                                      (2) Tailor its regulations to impose the
                                          statement of reasons therefor in the rule                                                                      assistance to eligible non-public schools
                                                                                                   least burden on society, consistent with
                                          issued) that notice and public procedure                                                                       under the ARP EANS program. As
                                                                                                   obtaining regulatory objectives and
                                          thereon are impracticable, unnecessary,                                                                        discussed elsewhere in this document,
                                                                                                   taking into account, among other things,
                                          or contrary to the public interest, shall                                                                      the ARP EANS program provides
                                                                                                   and to the extent practicable, the costs
                                          take effect at such time as the Federal                                                                        significant resources to SEAs through
                                                                                                   of cumulative regulations;
                                          agency promulgating the rule                                (3) Select, in choosing among                      each respective Governor to provide
                                          determines.’’ As stated above, the                       alternative regulatory approaches, those              such services or assistance to respond to
                                          Department has found good cause to                       approaches that maximize net benefits                 the unprecedented educational
                                          issue these final requirements without                   (including potential economic,                        disruptions caused by the COVID–19
                                          notice-and-comment rulemaking, and                       environmental, public health and safety,              emergency. The Department believes
                                          thus we are not including the 60-day                     and other advantages; distributive                    this regulatory action is needed to
                                          delayed effective date in this document.                 impacts; and equity);                                 ensure that SEAs provide services or
                                          Executive Orders 12866 and 13563                            (4) To the extent feasible, specify                assistance to non-public schools in a
                                                                                                   performance objectives, rather than the               manner consistent with statutory
                                          Regulatory Impact Analysis                               behavior or manner of compliance a                    requirements. In particular, the




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                                            Under Executive Order 12866, the                       regulated entity must adopt; and                      Department believes it is important to
                                          Secretary must determine whether this                       (5) Identify and assess available                  clarify the continued applicability of
                                          regulatory action is ‘‘significant’’ and,                alternatives to direct regulation,                    EANS requirements under the CRRSA
                                          therefore, subject to the requirements of                including providing economic                          Act, except as otherwise provided in the
                                          the Executive order and subject to                       incentives—such as user fees or                       ARP Act. Additionally, the Department
                                          review by the Office of Management and                   marketable permits—to encourage the                   believes clarification is needed to


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                                          36654                Federal Register / Vol. 86, No. 131 / Tuesday, July 13, 2021 / Rules and Regulations

                                          ensure that SEAs implement with                           Secretary that is based on circumstances                   on SEAs, namely, to provide
                                          fidelity the requirement to provide                       in the State. As discussed elsewhere in                    transparency in program administration
                                          services or assistance only to eligible                   this document, 40 percent has long been                    by publishing on the SEA website the
                                          non-public schools that enroll a                          recognized as a measure of significant                     minimum percentage used to determine
                                          significant percentage of students from                   poverty under title I of the ESEA. In                      whether a non-public school enrolls a
                                          low-income families and are most                          addition to providing clarity, by using                    significant percentage of students from
                                          impacted by the COVID–19 emergency.                       this percentage to determine whether a                     low-income families, source(s) of
                                          Analysis of Costs and Benefits                            non-public school enrolls a significant                    poverty data, and the factors to be used
                                                                                                    percentage of students from low-income                     to determine whether a school is most
                                             The Department believes this                           families, the final requirements employ                    impacted by the COVID–19 emergency.
                                          regulatory action does not impose                         a standard that is familiar to SEAs,                       We estimate that each SEA will need
                                          significant new cost-bearing                              thereby minimizing burden. By allowing                     two hours to comply with this website
                                          requirements on SEAs or other entities.                   an SEA to use an alternate significant                     posting requirement. At $97.28 per hour
                                          This action primarily serves to clarify or                percentage approved by the Secretary,                      (using mean wages for Education and
                                          give specific meaning to statutory                        the final requirements also provide                        Childcare Administrators 7 and
                                          requirements for SEAs in determining                      appropriate flexibility to SEAs if                         assuming the total cost of labor,
                                          eligible non-public schools for services                  circumstances in the State warrant a                       including benefits and overheard, is
                                          or assistance under the ARP EANS                          percentage other than 40 percent.                          equal to 200 percent of the mean wage
                                          program; it generally does not establish                     The final requirements also establish                   rate), the total estimated cost for 52
                                          new substantive requirements.
                                                                                                    that a student is included in the count                    SEAs (including the District of
                                          Accordingly, costs associated with this
                                                                                                    of students from low-income families                       Columbia and the Commonwealth of
                                          action are attributable generally to the
                                                                                                    enrolled in a non-public school if the                     Puerto Rico) is approximately $10,100.
                                          program statute. Moreover, in
                                                                                                    student is aged 5 through 17 and from                         Separately, the ARP EANS
                                          promulgating these final requirements,
                                                                                                    a family whose income does not exceed                      application imposes costs on SEAs. We
                                          we have sought where possible to
                                                                                                    185 percent of the 2020 Federal poverty                    estimate that each SEA will need two
                                          minimize the burden on SEAs in
                                                                                                    level. This commonly used poverty                          hours to complete the ARP EANS
                                          applying for ARP EANS funds and in
                                                                                                    threshold similarly minimizes the                          application. At $97.28 per hour, the
                                          complying with the statute. Any costs
                                                                                                    burden on SEAs in complying with the                       total estimated cost for 52 SEAs to
                                          associated with the final requirements
                                          that are not directly attributable to the                 program statute while also providing                       complete the ARP EANS application is
                                          statute are outweighed by their benefits                  clarity in program administration.                         approximately $10,100.
                                          which, in addition to reduced burden,                        The final requirements further
                                                                                                    establish that, in determining which                       Net Budget Impacts
                                          include clarity, appropriate flexibility,
                                          and transparency in SEA administration                    non-public schools are most impacted
                                                                                                                                                                  We estimate that the discretionary
                                          of the program.                                           by the COVID–19 emergency, an SEA
                                                                                                                                                               elements of these final requirements
                                             Under the ARP EANS program, SEAs                       must use at least one of four identified
                                                                                                                                                               will not have an impact on the Federal
                                          provide services or assistance to eligible                factors, which notably include the
                                                                                                                                                               budget. This regulatory action
                                          non-public schools that enroll a                          numbers of COVID–19 infections and
                                                                                                                                                               establishes requirements for SEAs
                                          significant percentage of students from                   COVID–19-related deaths in
                                                                                                                                                               receiving ARP EANS funds but does not
                                          low-income families and are most                          communities served by the school. As
                                                                                                                                                               affect the amount of funding available
                                          impacted by the COVID–19 emergency.                       discussed elsewhere in this document,
                                                                                                                                                               for this program. We anticipate that the
                                          The final requirements establish that a                   community COVID–19 infection and
                                                                                                                                                               $2.75 billion in ARP EANS funds will
                                          non-public school enrolls a significant                   death rates are readily available.
                                                                                                                                                               be disbursed in Fiscal Year 2021, and
                                          percentage of students from low-income                    Accordingly, the final requirements
                                                                                                                                                               therefore estimate $2.75 billion in
                                          families if the percentage of those                       would allow an SEA to meet statutory
                                                                                                                                                               transfers in Fiscal Year 2021 relative to
                                          students enrolled in the school meets or                  requirements with minimal burden.
                                                                                                                                                               the pre-statutory baseline.
                                          exceeds 40 percent or an alternate                           Lastly, the final requirements
                                          significant percentage approved by the                    establish a new substantive requirement                    Accounting Statement

                                                                                 ACCOUNTING STATEMENT—CLASSIFICATION OF ESTIMATED IMPACTS
                                                                                                                          [in millions]

                                                                                                              Category                                                                                Benefits

                                          Clarity, flexibility, and transparency in SEA administration of ARP EANS program ..................................................................   Not quantified.

                                                                                                                                                                                                         Costs

                                          Application completion and publication by SEAs of the minimum percentage used to determine whether a non-public                                       $0.02.
                                            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




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                                          Services and assistance to non-public schools that enroll a significant percentage of students from low-income families                               $2,750.
                                            and are most impacted by the COVID–19 emergency.




                                            7 See https://www.bls.gov/oes/current/oes_

                                          nat.htm.


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                                                                    Federal Register / Vol. 86, No. 131 / Tuesday, July 13, 2021 / Rules and Regulations                                                             36655

                                          Regulatory Flexibility Act Certification                               requirements for determining non-                             104 hours. At $97.28 per hour, the total
                                            The Regulatory Flexibility Act does                                  public schools to be served and                               estimated cost for 52 SEAs to complete
                                          not apply to this rulemaking because                                   determining low-income counts allow                           the ARP EANS application (including
                                          there is good cause to waive notice-and-                               SEAs to use generally available data and                      the District of Columbia and the
                                          comment rulemaking under the APA (5                                    employ standards SEAs are familiar                            Commonwealth of Puerto Rico) is also
                                          U.S.C. 553).                                                           with, thereby minimizing cost and                             approximately $10,100.
                                                                                                                 burden. The requirement that SEAs                                Collectively, we estimate that these
                                          Paperwork Reduction Act of 1995                                        provide transparency in program                               new information collection activities
                                             As part of its continuing effort to                                 administration, however, by publishing                        will result in a total estimated cost of
                                          reduce paperwork and respondent                                        on their website the minimum                                  $20,200 and a total estimated burden of
                                          burden, the Department provides the                                    percentage used to determine whether a                        208 hours to the public annually. The
                                          general public and Federal agencies                                    non-public school enrolls a significant                       Department is requesting an emergency
                                          with an opportunity to comment on                                      percentage of students from low-income                        paperwork clearance from OMB under 5
                                          proposed and continuing collections of                                 families, the source(s) of poverty data,                      CFR 1320.13 on the OMB 1810–0741
                                          information in accordance with the                                     and the factors to be used to determine                       data collection associated with these
                                          Paperwork Reduction Act of 1995 (PRA)                                  whether a school is most impacted by                          final requirements. That request will
                                          (44 U.S.C. 3501 et seq.). This helps                                   the COVID–19 emergency imposes a                              account for all burden hours and costs
                                          ensure that the public understands the                                 cost and burden hours on SEAs. In                             discussed within this section.
                                          Department’s collection instructions,                                  addition, the ARP EANS application
                                          respondents provide the requested data                                 will impose a cost and burden hours on                           Consistent with 5 CFR 1320.8(d), the
                                          in the desired format, reporting burden                                SEAs. Those costs and burdens are                             Department is also soliciting comments
                                          (time and financial resources) is                                      discussed below.                                              on the information collection. We must
                                          minimized, collection instruments are                                     For the final requirement to provide                       receive your comments on the collection
                                          clearly understood, and the Department                                 transparency in program administration                        activities contained in these final
                                          can properly assess the impact of                                      by publishing on the SEA website the                          requirements on or before September 13,
                                          collection requirements on respondents.                                minimum percentage used to determine                          2021. Comments related to the
                                             A Federal agency may not conduct or                                 whether a non-public school enrolls a                         information collection activities must be
                                          sponsor a collection of information                                    significant percentage of students from                       submitted electronically through the
                                          unless OMB approves the collection                                     low-income families and the factors to                        Federal eRulemaking Portal at
                                          under the PRA and the corresponding                                    be used to determine whether a school                         www.regulations.gov by selecting the
                                          information collection instrument                                      is most impacted by the COVID–19                              Docket ID number ED–2021–SCC–0101
                                          displays a currently valid OMB control                                 emergency, we estimate that each SEA                          or via postal mail, commercial delivery,
                                          number. Notwithstanding any other                                      will need two hours to comply with the                        or hand delivery by referencing the
                                          provision of the law, no person is                                     website posting requirement. At $97.28                        Docket ID number and the title of the
                                          required to comply with, or is subject to                              per hour, the total estimated cost for 52                     information collection request at the top
                                          penalty for failure to comply with, a                                  SEAs (including the District of                               of your comment. Comments submitted
                                          collection of information if the                                       Columbia and the Commonwealth of                              by postal mail or delivery should be
                                          collection instrument does not display a                               Puerto Rico) is approximately $10,100,                        addressed to the PRA Coordinator of the
                                          currently valid OMB control number.                                    and the total estimated burden is 104                         Strategic Collections and Clearance
                                             As discussed in the Analysis of Costs                               hours.                                                        Governance and Strategy Division, U.S.
                                          and Benefits section of the Regulatory                                    We estimate that one application will                      Department of Education, 400 Maryland
                                          Impact Analysis, the Department                                        be prepared by each eligible SEA and                          Ave. SW, LBJ, Room 6W208D,
                                          believes this regulatory action does not                               submitted through the Governor of the                         Washington, DC 20202–8240.
                                          impose significant new cost-bearing                                    respective State. For the time to                               Note: The Office of Information and
                                          requirements on SEAs or other entities                                 complete the application, we estimate                         Regulatory Affairs and the Department
                                          and that it primarily serves to clarify or                             that the number of burden hours per                           review all comments related to the
                                          give specific meaning to statutory                                     response will be two hours. The total                         information collection activities posted at
                                          requirements for SEAs. The final                                       estimated number of burden hours is                           www.regulations.gov.

                                                                                                                          COLLECTION OF INFORMATION
                                                                                                                                                                                                                 Estimated
                                                                                                                                                             Estimated                              Total
                                                                                                                                                                               Hours per                         cost at an
                                                                            Information collection activity                                                   number                             estimated
                                                                                                                                                                               response                          hourly rate
                                                                                                                                                             responses                          burden hours      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                                               individuals with disabilities can obtain                      file, braille, large print, audiotape,
                                                                                                                 this document in an accessible format.                        compact disc, or other accessible format.
                                            The ARP EANS program is not subject




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                                                                                                                 The Department will provide the                                  Electronic Access to This Document:
                                          to Executive Order 12372 and the
                                          regulations in 34 CFR part 79.                                         requestor with an accessible format that                      The official version of this document is
                                                                                                                 may include Rich Text Format (RTF) or                         the document published in the Federal
                                            Accessible Format: On request to the
                                                                                                                 text format (txt), a thumb drive, an MP3                      Register. You may access the official
                                          program contact person listed under FOR
                                          FURTHER INFORMATION CONTACT,                                                                                                         edition of the Federal Register and the


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                                          36656               Federal Register / Vol. 86, No. 131 / Tuesday, July 13, 2021 / Rules and Regulations

                                          Code of Federal Regulations at                           FOR FURTHER INFORMATION CONTACT:                      diversity of perspectives in the
                                          www.govinfo.gov. At this site you can                    Kristen Rhoads, U.S. Department of                    development and implementation of
                                          view this document, as well as all other                 Education, 400 Maryland Avenue SW,                    services.
                                          documents of this Department                             Room 5175, Potomac Center Plaza,                        Public Comment: In response to our
                                          published in the Federal Register, in                    Washington, DC 20202–5076.                            invitation to comment in the NPP, 27
                                          text or portable document format (PDF).                  Telephone: (202) 245–6715. Email:                     parties submitted comments on the
                                          To use PDF you must have Adobe                           Kristen.Rhoads@ed.gov.                                proposed priority, requirement, and
                                          Acrobat Reader, which is available free                     If you use a telecommunications                    definitions.
                                          at the site.                                             device for the deaf (TDD) or a text                     Generally, we do not address
                                             You may also access documents of the                  telephone (TTY), call the Federal Relay               technical and other minor changes. In
                                          Department published in the Federal                      Service (FRS), toll free, at 1–800–877–               addition, we do not address comments
                                          Register by using the article search                     8339.                                                 that raised concerns not directly related
                                          feature at www.federalregister.gov.                                                                            to the proposed priority, requirement,
                                                                                                   SUPPLEMENTARY INFORMATION:
                                          Specifically, through the advanced                                                                             and definitions.
                                                                                                     Purpose of Program: The
                                          search feature at this site, you can limit                                                                       Analysis of Comments and Changes:
                                                                                                   Comprehensive Centers program
                                          your search to documents published by                                                                          An analysis of the comments and
                                                                                                   supports the establishment of not fewer
                                          the Department.                                                                                                changes in the priority, requirement,
                                                                                                   than 20 comprehensive centers to
                                                                                                                                                         and definitions since publication of the
                                          Ian Rosenblum,                                           provide capacity building services to
                                                                                                                                                         NPP follows.
                                          Deputy Assistant Secretary for Policy and                State educational agencies (SEAs),                      The Department received 27
                                          Programs delegated the authority to perform              regional educational agencies (REAs),                 comments, which addressed several
                                          the functions and duties of the Assistant                local educational agencies (LEAs), and
                                          Secretary, Office of Elementary and                                                                            specific topics, including limiting
                                                                                                   schools that improve educational                      reimbursement of indirect costs,
                                          Secondary Education.
                                                                                                   outcomes for all students, close                      supporting an external evaluator,
                                          [FR Doc. 2021–14862 Filed 7–12–21; 8:45 am]              achievement gaps, and improve the                     meeting the needs of multiple
                                          BILLING CODE 4000–01–P                                   quality of instruction. The purpose of                populations and settings, implementing
                                                                                                   the National Comprehensive Center on                  project services, measuring Center
                                                                                                   Improving Literacy for Students with                  outcomes, and managing the Center and
                                          DEPARTMENT OF EDUCATION                                  Disabilities (Center) is to identify or               adequacy of resources. Each topic is
                                          34 CFR Chapter III                                       develop evidence-based literacy                       addressed below.
                                                                                                   assessment tools and professional
                                          [Docket ID ED–2020–OSERS–0179]                           development activities and identify                   General Comments
                                                                                                   evidence-based instruction, strategies,                  Comment: All commenters expressed
                                          Final Priority, Requirement, and                         and accommodations for students at risk
                                          Definitions—National Comprehensive                                                                             overall support for the proposed Center.
                                                                                                   of not attaining full literacy skills due to          One commenter stressed the importance
                                          Center on Improving Literacy for                         a disability, including dyslexia
                                          Students With Disabilities                                                                                     of this Center for addressing the needs
                                                                                                   impacting reading or writing, or                      of students in early childhood programs
                                          AGENCY: Offices of Elementary and                        developmental delay impacting reading,                through 12th grade. Another commenter
                                          Secondary Education and Special                          writing, language processing,                         noted that the Center could be
                                          Education and Rehabilitative Services,                   comprehension, or executive                           important for ensuring quality
                                          Department of Education.                                 functioning. The Center will also                     education and creating equitable
                                          ACTION: Final priority, requirement, and                 disseminate its products and                          learning environments for students with
                                          definitions.                                             information on evidence-based literacy                disabilities in both charter and
                                                                                                   to families, SEAs, LEAs, REAs, and                    traditional public schools.
                                          SUMMARY: The Department of Education                     schools.                                                 Discussion: The Department
                                          (Department) announces a priority,                         Program Authority: Section 203 of the               appreciates the comments and agrees
                                          requirement, and definitions for the                     Educational Technical Assistance Act of               with the commenters. The Center to be
                                          National Comprehensive Center on                         2002 (ETAA) (20 U.S.C. 9602) and                      funded under this program will provide
                                          Improving Literacy for Students with                     section 2244 of the ESEA (20 U.S.C.                   necessary and valuable technical
                                          Disabilities program (Comprehensive                      6674).                                                assistance (TA) related to improving
                                          Centers program), Assistance Listing                       We published a notice of proposed                   literacy outcomes for students at risk of
                                          Number 84.283D. The Elementary and                       priority, requirement, and definitions                not attaining full literacy skills due to a
                                          Secondary Education Act of 1965, as                      (NPP) for this program in the Federal                 disability.
                                          amended by the Every Student Succeeds                    Register on March 12, 2021 (86 FR                        Changes: None.
                                          Act (ESEA), requires the Secretary to                    14048). The NPP contained background                     Comment: One commenter suggested
                                          establish a comprehensive center for                     information and our reasons for                       removing language related to competing
                                          students at risk of not attaining full                   proposing the particular priority,                    in the global economy. The reviewer
                                          literacy skills due to a disability. The                 requirement, and definitions.                         thought that the phrase adds undue
                                          Department may use the priority,                           There are differences between the                   stress for students with disabilities.
                                          requirement, and definitions for                         NPP and this notice of final priority,                   Discussion: The mission of the
                                          competitions in fiscal year (FY) 2021                    requirement, and definitions (NFP) as                 Department includes ‘‘promoting
                                          and later years. We will use the priority,               discussed in the Analysis of Comments                 student achievement and preparation
                                          requirement, and definitions to award a                  and Changes section of this document.                 for global competitiveness.’’ This
                                          cooperative agreement for a




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                                                                                                   The substantive changes include not                   mission applies to all students,
                                          comprehensive center designed to                         establishing a limit on reimbursement of              including students with disabilities and
                                          improve literacy skills for students at                  indirect costs, adding a requirement                  we think it is a reasonable expectation
                                          risk of not attaining full literacy skills               related to features of screening                      to have a broad goal of preparing all
                                          due to a disability.                                     assessments, and expanding who the                    students for the global economy.
                                          DATES: Effective August 12, 2021.                        Center involves when soliciting a                        Changes: None.


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