CARES Act Programs; Equitable Services to Students and Teachers in Non-Public Schools (rule, 85 FR 39479, July 1, 2020)
Summary
Federal Register pages from Wednesday, July 1, 2020 (85 FR 39479) carrying a Department of Education interim final rule effective July 1, 2020. The rule covers equitable services to students and teachers in non-public schools under two CARES Act programs: the Governor's Emergency Education Relief Fund (GEER Fund) and the Elementary and Secondary School Emergency Relief Fund (ESSER Fund). Section 18005 of the CARES Act requires an LEA to provide equitable services in the same manner as provided under section 1117 of the ESEA of 1965. The Department had told LEAs to calculate the proportional share for non-public schools from enrollment data, and the rule adds § 76.665, which also allows a calculation based on children from low-income families. Ninety percent or more of ESSER funds are awarded by formula to LEAs in proportion to their title I funds.
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“CARES Act Programs; Equitable Services to Students and Teachers in Non-Public Schools (rule, 85 FR 39479, July 1, 2020).”
Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/cares-act-programs-equitable-services-to-students-and-teachers-in-non-42edfa122f/
, SHA-256 33ced80540a68b320d13c6053a92abd8587b5e4d0e56c1349bd431fbacbb29d2.Full text
Federal Register / Vol. 85, No. 127 / Wednesday, July 1, 2020 / Rules and Regulations 39479
Dated: June 25, 2020. Department of Education, 400 Maryland titled ‘‘Assistance to Non-public
Lowell J. Schiller, Avenue SW, Room 3W219, Washington, Schools,’’ requires an LEA to ‘‘provide
Principal Associate Commissioner for Policy. DC 20202. equitable services in the same manner
[FR Doc. 2020–14082 Filed 6–30–20; 8:45 am] Privacy Note: The Department’s as provided under section 1117 of the
BILLING CODE 4164–01–P
policy for comments received from ESEA of 1965 [Elementary and
members of the public is to make these Secondary Education Act of 1965
submissions available for public (ESEA)] to students and teachers in non-
viewing in their entirety on the Federal public schools, as determined in
DEPARTMENT OF EDUCATION
eRulemaking Portal at consultation with representatives of
34 CFR Part 76 www.regulations.gov. Therefore, non-public schools.’’ Section 18005(b)
commenters should be careful to lodges control of funds for the services
[Docket ID ED–2020–OESE–0091] include in their comments only and assistance mandated in section
RIN 1810–AB59 information that they wish to make 18005(a) in a ‘‘public agency.’’
publicly available. The Department must construe the
CARES Act Programs; Equitable FOR FURTHER INFORMATION CONTACT: CARES Act based on plain meaning,
Services to Students and Teachers in Amy Huber, U.S. Department of context, and coherence within the
Non-Public Schools Education, 400 Maryland Avenue SW, overall statutory structure. We are
Room 3W219, Washington, DC 20202. obliged to interpret the CARES Act
AGENCY: Office of Elementary and coherently, and fit, if possible, all its
Telephone: (202) 453–6132. Email:
Secondary Education, Department of EquitableServices.CaresAct@ed.gov. parts into a harmonious whole. Finally,
Education. If you use a telecommunications we must give meaning to each element
ACTION: Interim final rule with request device for the deaf (TDD) or a text of the statute so that no language is
for comments. telephone (TTY), call the Federal Relay surplus.
Service (FRS), toll free, at 1–800–877– The CARES Act is a special
SUMMARY: The U.S. Department of appropriation to combat the effects of
8339.
Education (Department) issues this the novel Coronavirus Disease 2019
interim final rule to clarify the SUPPLEMENTARY INFORMATION: (COVID–19). The pandemic has harmed
requirement in the Coronavirus Aid, Invitation to Comment: We invite you all our Nation’s students by disrupting
Relief, and Economic Security Act to submit comments on this interim their education. Nothing in the CARES
(CARES Act) that local educational final rule. We will consider these Act suggests Congress intended to
agencies (LEAs) provide equitable comments in determining whether to differentiate between students based
services to students and teachers in non- take any future action. See ADDRESSES upon the public or non-public nature of
public schools under the Governor’s for instructions on how to submit their school with respect to eligibility
Emergency Education Relief Fund comments. for relief.
(GEER Fund) and the Elementary and During and after the comment period, Construing the phrase ‘‘provide
Secondary School Emergency Relief you may inspect all public comments equitable services in the same manner
Fund (ESSER Fund) (collectively, the about this interim final rule by as provided under section 1117 of the
CARES Act programs). accessing Regulations.gov. Once the LBJ ESEA of 1965’’ as if Congress simply
building reopens to the public, you may incorporated the entirety of section 1117
DATES:
also inspect the comments in person in by reference requires a wholly
Effective Date: This interim final rule
Room 3W219, 400 Maryland Avenue inappropriate disregard for statutory
is effective July 1, 2020.
SW, Washington, DC, between the hours text and for controlling legal authorities
Comment Due Date: We must receive
of 8:30 a.m. and 4:00 p.m., Eastern time, requiring us to harmonize all relevant
your comments on or before July 31,
Monday through Friday of each week statutory provisions. It would create
2020.
except Federal holidays. If you want to significant and unnecessary
ADDRESSES: Submit your comments schedule time to inspect comments, interpretative conflicts and ambiguity.
through the Federal eRulemaking Portal please contact the person listed under Finally, a mechanistic application of
or via postal mail, commercial delivery, FOR FURTHER INFORMATION CONTACT. section 1117 detached from the relevant
or hand delivery. We will not accept Assistance to Individuals with CARES Act text would disadvantage
comments submitted by fax or by email Disabilities in Reviewing the Record: On some students based simply on where
or those submitted after the comment request, we will provide an appropriate they live. Therefore, exercising our
period. To ensure that we do not receive accommodation or auxiliary aid to an interpretative authority under Chevron
duplicate copies, please submit your individual with a disability who needs U.S.A., Inc. v. Natural Res. Def. Council,
comments only once. In addition, please assistance to review the comments or Inc., 467 U.S. 837, 844 (1984), and
include the Docket ID at the top of your other documents in the public record for relying on statutory language and
comments. this interim final rule. If you want to context to develop a harmonious
• Federal eRulemaking Portal: Go to schedule an appointment for this type of construction faithful to all relevant
www.regulations.gov to submit your aid, please contact the person listed CARES Act text and to the entire
comments electronically. Information under FOR FURTHER INFORMATION statutory structure, see Food and Drug
on using Regulations.gov, including CONTACT. Admin. v. Brown & Williamson Tobacco
instructions for accessing agency Background: This rulemaking resolves Corp., 529 U.S. 120, 132–33 (2000), we
documents, submitting comments, and a critical ambiguity in section 18005(a) have concluded the phrase ‘‘in the same
viewing the docket, is available on the of Division B of the CARES Act, Public manner as provided under section
site under ‘‘How to use Law 116–136, 134 Stat. 281 (Mar. 27, 1117’’ does not simply mean ‘‘as
Regulations.gov.’’ 2020) with respect to the equitable provided under section 1117’’ and that
• Postal Mail, Commercial Delivery, services obligation owed by LEAs that we must implement section 1117 in a
or Hand Delivery: If you mail or deliver receive CARES Act funds to students fashion fully consistent with all relevant
your comments about this interim final and teachers in non-public schools. CARES Act text, purposes, and
rule, address them to Amy Huber, U.S. Section 18005(a) of the CARES Act, requirements.
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39480 Federal Register / Vol. 85, No. 127 / Wednesday, July 1, 2020 / Rules and Regulations
On April 30, 2020, the Department use the proportional share it calculated (section 18003(e))—make funds
issued guidance titled Providing under section 1117(a)(4)(A) for the potentially available to LEAs.
Equitable Services to Students and 2019–2020 school year or to use the GEER funds are available to, among
Teachers in Non-Public Schools under number of children, ages 5 through 17, other eligible entities, LEAs that the
the CARES Act Programs (Equitable who attend a non-public school in the SEA deems have been ‘‘most
Services guidance), available at https:// LEA that will participate under a significantly impacted’’ by COVID–19 to
oese.ed.gov/files/2020/04/FAQs- CARES Act program and who are from continue to provide educational services
Equitable-Services.pdf. Specifically, the low-income families compared to the and to support the on-going
Department concluded that the total number of children, ages 5 through functionality of the LEA (section
provision of equitable services under 17, who are from low-income families in 18002(c)(1)) or to LEAs that the
the CARES Act ‘‘in the same manner as both Title I schools and participating Governor ‘‘deems essential’’ for carrying
provided under section 1117’’ of Title I non-public schools in the LEA. out emergency educational services
requires the application of, among other However, if an LEA spends any funds authorized under section 18003(d)(1) of
provisions, section 1117(a)(3)(A) as from a CARES Act program on students the ESSER Fund; provision of child care
outlined in Question #7 of the Equitable and teachers in non-Title I public and early childhood education; social
Services guidance. Because services schools, then the law requires equity for and emotional support; and the
under the CARES Act programs can be students and teachers in participating protection of education-related jobs
available for all students—public and non-public schools, achieved by using (section 18003(c)(3)).2
non-public—without regard to poverty, enrollment to determine the Ninety percent or more of ESSER
low achievement, or residence in a proportional share. funds are awarded by formula to LEAs
participating Title I public school (including charter schools that are
Discussion: LEAs) in proportion to the amount of
attendance area, the Department
instructed LEAs to use enrollment data I. Legal Framework funds such LEAs ‘‘received under part
in non-public schools that will A of title I of the ESEA of 1965 in the
It is a ‘‘fundamental canon of most recent fiscal year’’ (section
participate under the CARES Act
statutory construction that the words of 18003(c)). An LEA may allocate the
programs compared to the total
a statute must be read in their context ESSER funds it receives without
enrollment in all public schools and
and with a view to their place in the restriction and use them for ‘‘any’’
participating non-public schools in the
overall statutory scheme.’’ Davis v. activity in a long list, including any
LEA to determine the proportional share
Michigan Dept. of Treasury, 489 U.S. activity authorized under the ESEA, the
of CARES Act funds available to provide
803, 809 (1989). We must interpret the Individuals with Disabilities Education
equitable services.
A number of States took issue with CARES Act ‘‘as a symmetrical and Act, the Adult Education and Family
the Department’s guidance with respect coherent regulatory scheme,’’ Gustafson Literacy Act, the Carl D. Perkins Career
to using total non-public school v. Alloyd Co., 513 U.S. 561, 569 (1995), and Technical Education Act, and the
enrollment to determine the and ‘‘fit, if possible, all parts into an McKinney-Vento Homeless Assistance
proportional share of CARES Act funds harmonious whole.’’ FTC v. Mandel Act (section 18003(d)(1)).
for equitable services.1 The Council of Brothers, Inc., 359 U.S. 385, 389 (1959). From the SEA Reserve under the
Chief State School Officers (CCSSO), in When Congress has not supplied a ESSER Fund, an SEA may allocate those
particular, expressed concern on behalf definition, a statutory term generally has funds to LEAs, among other entities, for
of its members. According to CCSSO, its ordinary meaning. See, e.g., emergency needs determined by the
Congress ‘‘intended to concentrate Schindler Elevator Corp. v. United SEA to address issues responding to
ESSER funds in areas of the most need, States ex rel. Kirk, 563 U.S. 401, 407 COVID–19 (section 18003(e)).3
where the educational and social (2011). The plainness or ambiguity of The CARES Act programs do not favor
impacts of the COVID crisis will be most statutory language is determined not students based on public or non-public
extreme and difficult to overcome with only by reference to the language itself, school attendance. Any student
limited local funds.’’ but also by the specific context in which attending a public or non-public school
The text of the CARES Act is that language is used, and the broader may receive a broad array of services
inconsistent with CCSSO’s assertion context of the statute as a whole. Yates irrespective of where the student resides
that Congress intended a rigid v. United States, 135 S.Ct. 1074, 1081 or whether he or she is low achieving
application of section 1117. Rather, the (2015). Constructions creating surplus or from a low-income family.
CARES Act affords LEAs more language are disfavored as the Section 18005(a) of the CARES Act
flexibility. In light of concerns Department is ‘‘obliged to give effect, if requires an LEA receiving funds under
expressed, as discussed below, we are possible, to every word Congress used.’’ sections 18002 or 18003 of the CARES
affording flexibility to an LEA that helps Reiter v. Sonotone Corp., 442 U.S. 330, Act to ‘‘provide equitable services in the
poor children by spending its CARES 339 (1979); see also Nat’l Ass’n of Mfgs same manner as provided under section
Act funds only in its Title I schools to v. Dep’t of Defense, 138 S.Ct. 617, 632 1117 of the ESEA of 1965 to students
(2018). and teachers in non-public schools, as
1 See, e.g., letter from Carissa Moffat Miller, determined in consultation with
II. Analysis representatives of non-public schools.’’
Executive Director, Council of Chief State School
Officers, to Betsy DeVos, U.S. Secretary of A. The CARES Act Section 1117 is a provision of Title I,
Education (May 5, 2020), available at https:// Part A (Title I) of the ESEA, a program
ccsso.org/sites/default/files/2020-05/ The CARES Act authorizes new
DeVosESLetter050520.pdf; letter from Pedro A.
whose purpose is to improve the
Rivera, Secretary of Education, Pennsylvania
Federal education programs to ‘‘prevent,
Department of Education, to Frank T. Brogan, prepare for, and respond to’’ COVID–19. 2 A Governor may target GEER funds for a specific
Assistant Secretary for Elementary and Secondary Three of those programs—the GEER purpose or population of students, in which case
Education, U.S. Department of Education (May 7, Fund (section 18002(c)(1), (3)), the an LEA would need to use the funds accordingly.
2020), available at https://www.education.pa.gov/ 3 An SEA may target ESSER SEA Reserve funds
Documents/K-12/Safe%20Schools/COVID/
ESSER Fund formula grants to LEAs for a specific purpose or population of students, in
CARESAct/Letter%20to%20 (section 18003(c)), and the ESSER State which case an LEA would need to use the funds
Secretary%20Brogan.pdf. educational agency (SEA) Reserve accordingly.
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Federal Register / Vol. 85, No. 127 / Wednesday, July 1, 2020 / Rules and Regulations 39481
academic achievement of low-achieving fact that section 1117 contains precisely We believe this flexibility is a
students who reside in public school parallel provisions. Compare section reasoned and consistent construction
attendance areas with a high 18005(a) and (b) of the CARES Act with giving effect to all relevant statutory
concentration of poverty (Title I section 1117(b) and (d) of Title I, text. Any other construction requires the
schools) (20 U.S.C. 6301 et seq.). Section respectively. If Congress intended to words of section 18005(a) ‘‘in the same
1117 requires an LEA that receives Title incorporate ‘‘section 1117 of the ESEA manner’’ to be denuded of meaning, the
I funds to provide equitable services to of 1965’’ wholesale into the CARES Act, consultation and public use of funds
non-public school students (20 U.S.C. and to have the Department provisions of section 18005(a) and (b) to
6320; 34 CFR 200.62–200.68). Under mechanistically apply it, then these be discarded as surplus language, and,
Title I, funds for equitable services are provisions in sections 18005(a) and (b) paradoxically, the equity mandate of
generated by students from low-income must be deemed superfluous and other section 1117(a)(3) to be ignored.
families who reside in a participating key CARES Act text ignored. Compare,
Title I public school attendance area e.g., section 1117(a)(1) (meeting the Significant Regulations
and attend a non-public school (20 needs of non-public school students To carry out functions vested in the
U.S.C. 6320(a)(4)(A)(i); 34 CFR who are low-achieving and reside in a Secretary by law, she is ‘‘authorized to
200.64(a)). Using these funds, the LEA participating Title I public school make, promulgate, issue, rescind, and
provides services to low-achieving attendance area) with sections amend rules and regulations . . .
students who reside in a participating 18002(c)(1) (emergency support for governing the applicable programs
Title I public school attendance area LEAs significantly impacted by COVID– administered by, the Department.’’ 20
and attend a non-public school, 19 to continue education services to U.S.C. 1221e–3; see also 20 U.S.C. 3474
regardless of the location of the non- their students and to support on-going (Secretary is ‘‘authorized to prescribe
public school (i.e., inside or outside the functionality of the LEAs) and 18003(d) such rules and regulations as the
public school attendance area or the (support any activity from a broad array Secretary determines necessary or
LEA in which the student resides) (20 of permissible purposes for any student appropriate to administer and manage
U.S.C. 6320(a)(1); 34 CFR 200.62(b)(1)). and staff without limitation on income, the functions of the Secretary or the
The same framework applies for residence, or school attendance). Department’’). A ‘‘rule’’ is defined
public school students under Title I. An Finally, the CARES Act is a separate broadly to include ‘‘statement[s] of
LEA must identify eligible public school appropriation allowing separate general or particular applicability and
attendance areas and rank them on the permissible uses of taxpayer funds. By future effect’’ that are designed to
basis of concentration of poverty (20 definition, the provisions in section ‘‘implement, interpret, or prescribe law
U.S.C. 6313(a)(2), (b); 34 CFR 200.78(a)). 1117 relating to funding and eligibility or policy.’’ 5 U.S.C. 551(4).
The LEA then selects areas to for services, e.g., section 1117(a)(1) and We discuss substantive issues under
participate in Title I services in rank (4) and (b)(1)(E) and (J)(ii), are the sections of the interim final rule to
order of poverty, either for the LEA as inapposite in a CARES Act frame. which they pertain. There are no current
a whole or within a grade span—e.g., all However, the provisions in section 1117 regulations.
elementary schools (20 U.S.C. relating to the ‘‘manner’’ in which
6313(a)(3)–(4); 34 CFR 200.78(a)). services are delivered, e.g., section In General
Eligible public school students must 1117(a)(2), (3), and (b)(1)(A)–(D), (F)–(I), Statute: Section 18005(a) of the
live in a school attendance area selected and (K), arguably do fit within and can CARES Act requires an LEA that
to participate under Title I and be low be applied under the CARES Act. receives funds under the GEER Fund or
achieving (20 U.S.C. 6314(b)(6), These facts must be acknowledged the ESSER Fund to provide equitable
6315(c)). Thus, for both public and non- and should drive construction of section services in the same manner as provided
public school students, generation of 18005(a)’s operative phrase ‘‘in the same under section 1117 of the ESEA to
Title I funds and eligibility for Title I manner as provided under section students and teachers in non-public
services depend on residence in a 1117’’ of Title I. Accordingly, in the schools, as determined in consultation
participating Title I public school exercise of our interpretative discretion, with representatives of non-public
attendance area; that is, similarly the Department has resolved the schools.
situated students receive the same ambiguity by permitting LEAs flexibility New Regulations: Section 76.665(a)(1)
benefits under Title I (i.e., are treated to provide equitable services, incorporates the statute. Section
‘‘equitably’’) whether they attend a particularly with respect to determining 76.665(a)(2) identifies the CARES Act
public Title I school or a non-public the proportional share, based on the programs to which this section applies:
school. services it provides to public school The GEER Fund, the ESSER Fund
students. An LEA that spends funds formula grants to LEAs, and the ESSER
B. Resolving Ambiguity in Section from a CARES Act program only on SEA Reserve.
18005(a) students and teachers in Title I schools Reasons: It is necessary to include the
Section 18005(a) of the CARES Act is may determine the proportional share statutory requirement that an LEA
facially ambiguous. To begin with, on the basis of enrollment or by either provide equitable services ‘‘in the same
Congress did not need to add the words using the LEA’s Title I proportional manner’’ as provided under section
‘‘in the same manner’’ if it simply share for the 2019–2020 school year or 1117 of the ESEA to students and
intended to incorporate ‘‘section 1117 of by using the number of students from teachers in non-public schools to
the ESEA of 1965’’ by reference in the low-income families in participating provide context and authorization for
CARES Act. The unqualified phrase ‘‘as non-public schools compared to the the remaining provisions.
provided in’’ alone would have been total number of students from low-
sufficient. income families in Title I and Consultation
Furthermore, Congress included a participating non-public schools in the Statute: Section 18005(a) of the
separate consultation requirement in LEA. All other LEAs must determine the CARES Act requires an LEA to provide
section 18005(a) of the CARES Act, and proportional share based on enrollment equitable services ‘‘as determined in
a public control of funds provision in in public and participating non-public consultation with representatives of
section 18005(b), notwithstanding the schools. non-public schools.’’
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39482 Federal Register / Vol. 85, No. 127 / Wednesday, July 1, 2020 / Rules and Regulations
New Regulations: Consultation must program to provide equitable services to through 17, from low-income families in
be ‘‘in the same manner’’ as conducted students and teachers in non-public Title I and participating non-public
under section 1117 of the ESEA. Section schools. An LEA need not use the same schools using one of the poverty
76.665(b)(1) incorporates section 1117’s measure for each CARES Act program; measures in section 1117(c)(1) of the
requirement that consultation must however, it must use only one measure ESEA.
occur during the design and for a single program. Given that the purpose of the CARES
development of the LEA’s plans to Section 76.665(c)(1)(i) addresses an Act is to ‘‘prevent, prepare for, and
spend CARES Act funds and before the LEA that allocates all its funds under a respond to’’ the effects of COVID–19,
LEA makes any decision affecting the CARES Act program only to students timely provision of services to both
opportunities of students and teachers and teachers in Title I schools. In that public and non-public students and
in non-public schools to benefit from case, the LEA has two options in teachers is critical. To the extent
those funds. As provided in section addition to using enrollment to collecting poverty data from non-public
1117(b)(1) of the ESEA, the LEA and determine the proportional share: (1) By school families under
private school officials shall both have using the proportional share it § 76.665(c)(1)(i)(B) would delay
the goal of reaching timely agreement on calculated under section 1117(a)(4)(A) services, we encourage an LEA to use
how to provide equitable and effective for the 2019–2020 school year; or (2) by proportionality, wherein the LEA would
programs for private school students using the number of children, ages 5 apply the poverty percentage of its Title
and teachers. through 17, who attend a non-public I schools as a whole to the enrollment
Section 76.665(b)(2) makes clear that school in the LEA that will participate in non-public schools that will
the requirements for consultation in under a CARES Act program and who participate in a CARES Act program.
section 1117(b) of the ESEA apply to the are from low-income families compared Whichever path an LEA chooses, it
CARES Act programs unless they are to the total number of children, ages 5 achieves the equity required under
inconsistent with the CARES Act through 17, who are from low-income section 1117(a)(3) of the ESEA—that is,
statutory provisions. For example, families in both Title I schools and educational services and other benefits
sections 1117(b)(1)(E) and (J)(ii), which participating non-public schools in the for students in non-public schools must
deal with calculating the proportional LEA. If an LEA uses one of these be equitable in comparison to those for
share in accordance with section options, then the LEA must take care to public school students.
1117(a)(4)(A) of the ESEA, would not ensure that it does not violate the For all other LEAs, equity requires
apply if an LEA chooses the measure in supplement not supplant requirement in comparable treatment for non-public
§ 76.665(c)(1)(i)(B) or (ii). section 1118(b)(2) of the ESEA by school students and teachers, which is
Reasons: Consultation is the allocating CARES Act funds to Title I achieved by basing the proportional
foundation on which equitable services schools and redirecting State and local share on enrollment in both public and
are provided and is mandated by section funds from those schools to non-Title I participating non-public schools in the
18005(a). The regulations clarify that schools. See § 76.665(c)(3). LEA.
section 1117(b) of the ESEA, including For all other LEAs, § 76.665(c)(1)(ii) Congress has already taken poverty
the due process safeguards it contains, applies. This requires the LEA to into consideration in allocating CARES
applies to the CARES Act programs, calculate the proportional share based Act funds to LEAs. An LEA receives
unless certain provisions are on enrollment in participating non- ESSER funds based on its proportionate
inconsistent with the CARES Act. We public elementary and secondary share of Title I funds (section 18003(c)
have identified two provisions that, on schools in the LEA compared to the of the CARES Act). The Department
their face, are inconsistent with two of total enrollment in both public and allocates Title I funds to LEAs through
the measures these regulations permit participating non-public elementary and four statutory formulas, all of which are
for determining the proportional share secondary schools in the LEA. based on poverty counts that include
because they refer to the proportional Section 76.665(c)(2) requires an LEA both public and non-public school
share as calculated under Title I. The to calculate the proportional share of children.4 An LEA’s Title I allocation is
CARES Act is an emergency CARES Act funds off the top of the generally the sum it receives through
appropriation to address exigent LEA’s total CARES Act allocation for each formula less any required or
circumstances caused by responses to each program under which it receives authorized reservations by the State.
the pandemic. Although section funds prior to any expenditures or Similarly, 40 percent of the GEER funds
18005(a) does not specify how transfers by the LEA in accordance with a Governor receives is based on the
consultation is to occur, the Department section 1117(a)(4)(A)(ii) of the ESEA. State’s share of Title I formula children
believes using the section 1117(b) Reasons: Under § 76.665(c)(1)(i), an
(section 18002(b)(2) of the CARES Act).
framework (to the extent consistent with LEA spending all its funds under a
Thus, Congress targeted both ESSER and
the CARES Act itself), which is very CARES Act program only in its Title I
GEER funds to high-poverty areas to
familiar to schools and families, is a schools may determine the proportional
reflect their need.
highly effective approach for the speedy share for equitable services based on
However, once this allocation is
provision of equitable services. enrollment or in two additional ways
made, the CARES Act authorizes an
based on the share of students from low-
Determining Proportional Share LEA to serve all students—public and
income families attending participating
non-public—who have been affected by
Statute: Section 18005(a) of the non-public schools within the LEA. One
COVID–19. If the CARES Act does not
CARES Act requires an LEA to provide path permits an LEA to use the
limit services based on residence and
equitable services ‘‘in the same manner proportional share it calculated for Title
as provided under section 1117 of the I purposes in the 2019–2020 school 4 Title I’s four formulas direct funds to LEAs
ESEA’’ to students and teachers in non- year. This approach has the obvious based primarily on an LEA’s relative share of
public schools. advantage of simplicity because it is a formula children, 97 percent of whom are children
New Regulations: Section 76.665(c) known proportion. Alternatively, if an ages 5 through 17 in poverty in public and non-
public schools as determined annually by the
sets out measures that an LEA may use LEA believes an actual poverty count Census Bureau. In varying degrees, the formulas
to determine the proportional share of would better meet respective needs, address concentrations of poverty. 20 U.S.C. 6333–
funds available under each CARES Act then it may count students, ages 5 6337.
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Federal Register / Vol. 85, No. 127 / Wednesday, July 1, 2020 / Rules and Regulations 39483
poverty, then it stands to reason that an as provided under section 1117 of the LEA provides under the CARES Act
LEA should not use residence and ESEA’’ to students and teachers in non- programs must be secular, neutral, and
poverty to determine the proportional public schools. nonideological.
share of available funds for equitable New Regulations: Section 76.665(d)(1)
implements section 1117(a)(3) of the Public Control of Funds
services to non-public school students.
In this context, only the use of ESEA, which requires educational Statute: Section 18005(b) of the
enrollment data ensures that sufficient services and other benefits for students CARES Act requires the control of
CARES Act funds are reserved to and teachers in non-public schools be CARES Act funds for services and
provide services to non-public school equitable in comparison to services and assistance to students and teachers in
students and teachers that are equitable other benefits for public school students non-public schools and title to
in comparison to their public school and teachers. Section 76.665(d)(2) materials, equipment, and property
counterparts.5 In fact, this is the only makes clear that, irrespective of the must be in a public agency and a public
way to give meaning to the phrase ‘‘in measure an LEA uses to determine the agency must administer those funds,
the same manner’’ consistent with proportional share under paragraph materials, equipment, and property. An
section 1117(a)(3) of the ESEA, which (c)(1), the LEA still has the obligation to LEA must provide services directly or
requires that benefits for ‘‘private school afford students and teachers in any non- contract for the provision of services
children shall be equitable in public school in the LEA the with a public or private entity.
comparison to services and other opportunity to receive CARES Act New Regulations: Section 76.665(f)
benefits for public school children.’’ In services. implements section 18005(b) of the
other words, if an LEA elects to use Reasons: As explained above, section CARES Act.
CARES Act funds to serve all its 1117(a)(3) of the ESEA mandates equity Reasons: Section 76.665(f)
students, then only a calculation of in equitable services. Only if services emphasizes the importance of the
proportional share based on all and other benefits to students and statutory requirements that control of
students—i.e., enrollment—satisfies the teachers in non-public schools are CARES Act funds and title to materials,
requirements of section 1117(a)(3). comparable to those provided to public equipment, and property for equitable
To best meet its needs, an LEA may school students and teachers can they services to students and teachers in non-
choose to use funds from one CARES be equitable. public schools be in a public agency and
Act program (e.g., ESSER formula-grant Under § 76.665(d)(2), each non-public that the LEA or public agency
funds) to serve students and teachers school in an LEA may request CARES continuously administers the funds,
only in its Title I schools and funds Act services for its students and materials, equipment, and property.
from another CARES Act program (e.g., teachers. A non-public school, however, Waiver of Proposed Rulemaking and
GEER funds) to serve students and is not required to accept equitable Delayed Effective Date
teachers in any school. In this case, the services. In fact, the Department
particularly discourages the small Under the Administrative Procedure
LEA would use the appropriate measure
number of financially well-resourced Act (APA) (5 U.S.C. 553), the
in § 76.665(c)(1) to determine the
non-public K–12 schools from accepting Department generally offers interested
proportional share under each program.
CARES Act-funded equitable services. parties the opportunity to comment on
In sum, the measures in
Such schools include non-public a proposed rule. However, the APA
§ 76.665(c)(1)ensure the equitable
boarding and day schools with tuition provides that an agency is not required
treatment of non-public school students
and fees comparable to those charged by to conduct notice and comment
and teachers compared to their public
the most highly selective postsecondary rulemaking when the agency, for good
school counterparts. The measures are
institutions. These schools tend to serve cause, finds that the requirement is
also reasonable from the standpoint of
families from the highest income impracticable, unnecessary, or contrary
administrative efficiency, minimizing
brackets, although they sometimes offer to the public interest. 5 U.S.C. 553(b)(B).
LEA and parent burden, and carrying
a limited number of scholarships to low- There is good cause here for waiving
out the CARES Act’s mandate to provide
and middle-income students each year. rulemaking. The CARES Act programs
funds in response to the COVID–19
The Department believes such non- were enacted to address the immediate
pandemic promptly and to do so in a
public schools have ample resources to effects of COVID–19. The statute
way providing for equitable treatment of
serve their students and teachers during requires an LEA to provide services for
all students and teachers.
the COVID–19 national emergency and students and teachers in non-public
Equity should not rely on taxpayer funds to do schools that are equitable in comparison
Statute: Section 18005(a) of the so. to services provided to public school
CARES Act requires an LEA to provide students and teachers. Before an LEA
equitable services ‘‘in the same manner Secular, Neutral, and Nonideological makes any decision that affects the
Statute: Section 18005(a) of the opportunity of non-public school
5 About 4.9 million students or 9.1 percent of all CARES Act requires an LEA to provide students and teachers to participate, it
elementary and secondary school students in the equitable services ‘‘in the same manner must consult with appropriate non-
Nation are enrolled in non-public schools. public school representatives. Thus, an
Broughman, S.P., Kincel, B., and Peterson, J. (2019).
as provided under section 1117 of the
Characteristics of Private Schools in the United ESEA’’ to students and teachers in non- LEA cannot begin services for public or
States: Results From the 2017–18 Private School public schools. Section 1117(a)(2) of the non-public school students and teachers
Universe Survey First Look (NCES 2019–071), U.S. ESEA requires educational services or without consulting on determining the
Department of Education. Using enrollment to amount of funds available for those
determine the share of CARES Act funds for
other benefits, including materials and
equitable services and assuming that every private equipment, be secular, neutral, and services. Therefore, in light of the
elementary and secondary school chose to nonideological. current national emergency, its
participate in the CARES Act programs, less than New Regulations: Section 76.665(e) disruption on education in both public
10 percent of the CARES Act funding nationwide implements section 1117(a)(2) of the and non-public schools, and the
would be provided for equitable services for non-
public school students and teachers, with more ESEA. immediate need for certainty regarding
than 90 percent of the funding directed to public Reasons: Section 76.665(e) makes applicable requirements, the normal
school students and teachers nationwide. clear that the services and benefits an rulemaking process would be
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39484 Federal Register / Vol. 85, No. 127 / Wednesday, July 1, 2020 / Rules and Regulations
impracticable and contrary to the public action subject to review by OMB under might result from technological
interest because time is of the essence. section 3(f) of Executive Order 12866. innovation or anticipated behavioral
However, the Department is providing a Pursuant to the Congressional Review changes.’’
30-day comment period and invites Act (5 U.S.C. 801 et seq.), the Office of The Department has assessed the
interested persons to participate in this Information and Regulatory Affairs potential costs and benefits, both
rulemaking by submitting written designated this rule as a ‘‘major rule,’’ quantitative and qualitative, of this
comments. The Department will as defined by 5 U.S.C. 804(2). regulatory action, and we are issuing
consider the comments received and Under Executive Order 13771, for this interim final rule only on a
may conduct additional rulemaking each new regulation that the reasoned determination that its benefits
based on the comments. Department proposes for notice and justify its costs. In choosing among
The APA also generally requires that comment or otherwise promulgates that alternative regulatory approaches, we
a final or interim final rule be published is a significant regulatory action under selected those approaches that would
at least 30 days before its effective date, Executive Order 12866 and that imposes maximize net benefits. Based on the
unless the agency has good cause to total costs greater than zero, it must analysis that follows and the reasons
implement its regulations sooner (5 identify two deregulatory actions. For stated elsewhere in this document, the
U.S.C. 553(d)(3)). Again, this interim FY 2020, any new incremental costs Department believes that this interim
final rule is necessary immediately to associated with a new regulation must final rule is consistent with the
address the effects of COVID–19 on both be fully offset by the elimination of principles in Executive Order 13563.
public and non-public school students existing costs through deregulatory We also have determined that this
and teachers. In response to the pressing actions. The designation of this rule regulatory action does not unduly
need for States and LEAs to have clear under Executive Order 13771 will be interfere with State, local, or Tribal
guidance on the use of funds under the informed by public comments. governments in the exercise of their
CARES Act programs so that they can We have also reviewed these governmental functions.
help all schools address the disruption regulations under Executive Order In this regulatory impact analysis, we
created by COVID–19 and ensure that 13563, which supplements and discuss the need for regulatory action,
learning continues for all students, explicitly reaffirms the principles, the potential costs and benefits, net
consistent with the purposes of the structures, and definitions governing budget impacts, assumptions,
regulatory review established in limitations, and data sources, as well as
CARES Act, it is impracticable and
Executive Order 12866. To the extent regulatory alternatives we considered.
contrary to the public interest to delay
permitted by law, Executive Order Elsewhere, under Paperwork
the effective date. Accordingly, we make Reduction Act of 1995, we identify and
this rule effective on the day it is 13563 requires that an agency—
(1) Propose or adopt regulations only explain burdens specifically associated
published. with information collection
upon a reasoned determination that
Executive Orders 12866, 13563, and their benefits justify their costs requirements.
13771 (recognizing that some benefits and 1. Need for Regulatory Action and
Regulatory Impact Analysis costs are difficult to quantify); Analysis of Benefits
(2) Tailor its regulations to impose the
Under Executive Order 12866, the least burden on society, consistent with The Department is issuing this
Office of Management and Budget obtaining regulatory objectives and interim final rule to clarify the provision
(OMB) must determine whether this taking into account, among other things, of equitable services under section
regulatory action is ‘‘significant’’ and, and to the extent practicable, the costs 18005 of the CARES Act. More
therefore, subject to the requirements of of cumulative regulations; specifically, this interim final rule
the Executive order and subject to (3) In choosing among alternative specifies the measures that LEAs may
review by OMB. Section 3(f) of regulatory approaches, select those use to determine the proportional share
Executive Order 12866 defines a approaches that maximize net benefits of CARES Act funds available for
significant regulatory action as an action (including potential economic, equitable services to students and
likely to result in a rule that may— environmental, public health and safety, teachers in non-public schools. This
(1) Have an annual effect on the and other advantages; distributive interim final rule is meant to provide
economy of $100 million or more, or impacts; and equity); flexibility and clarify administration for
adversely affect a sector of the economy; (4) To the extent feasible, specify SEAs and LEAs so that the equitable
productivity; competition; jobs; the performance objectives, rather than the services provisions are implemented
environment; public health or safety; or behavior or manner of compliance a consistent with the requirements of the
State, local, or Tribal governments or regulated entity must adopt; and CARES Act and that funds may be used
communities in a material way (also (5) Identify and assess available to provide services to both public and
referred to as ‘‘economically significant’’ alternatives to direct regulation, non-public students and teachers in a
regulations); including economic incentives—such as timely manner while imposing as little
(2) Create serious inconsistency or user fees or marketable permits—to burden and costs on program
otherwise interfere with an action taken encourage the desired behavior, or participants as possible. In doing so, it
or planned by another agency; providing information that enables the reconciles applicable equitable services
(3) Materially alter the budgetary public to make choices. provisions of the CARES Act in a
impacts of entitlement grants, user fees, Executive Order 13563 also requires manner that is reasonable, offers
or loan programs or the rights and an agency ‘‘to use the best available appropriate flexibility, and ensures that
obligations of recipients thereof; or techniques to quantify anticipated CARES Act programs serve public and
(4) Raise novel legal or policy issues present and future benefits and costs as non-public school students equitably. In
arising out of legal mandates, the accurately as possible.’’ The Office of particular, the rule expands the options
President’s priorities, or the principles Information and Regulatory Affairs of available for determining the
stated in the Executive order. OMB has emphasized that these proportional share of CARES Act funds
This regulatory action is an techniques may include ‘‘identifying that must be made available for
economically significant regulatory changing future compliance costs that equitable services by allowing an LEA to
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Federal Register / Vol. 85, No. 127 / Wednesday, July 1, 2020 / Rules and Regulations 39485
select a measure based on the students services under the CARES Act, the established means of communication
and schools it will serve with CARES Department does not know the exact with their LEAs.
Act funds. The Department believes that costs attributable to the statutory For LEAs that do not already have
these benefits outweigh any associated requirements. Moreover, LEAs are enrollment data for one or more
costs. permitted to reserve funds, from the participating non-public schools and
As discussed elsewhere in this proportional share determined in that cannot obtain such data from the
preamble, in light of the current accordance with this interim final rule, SEA, complying with the interim final
national emergency and the importance to pay the reasonable and necessary rule entails obtaining the data directly
of ensuring that LEAs provide services costs of administering equitable services from those schools through the
immediately under the CARES Act to under the CARES Act. consultation process. The Department
students and teachers in schools—both In the following paragraphs, we believes this will be minimally
public and non-public—consistent with estimate the costs of determining the burdensome on these LEAs, which we
the requirements of law, the normal proportional share in accordance with estimate to include 20 percent of
rulemaking process would be the interim final rule, while recognizing affected LEAs. Specifically, we estimate
impracticable and contrary to the public that those costs may be financed using that an LEA will have on average two
interest. Moreover, in light of clear CARES Act program funds.6 non-public schools for which
evidence that a significant number of enrollment data are needed and that it
SEAs have indicated their intention to Implementation Costs for SEAs, LEAs, will take on average 0.5 total hours to
implement the equitable services Affected Schools, and the Government obtain the data from those schools. At
provisions of the CARES Act in a Costs of Determining the Proportional $35 per hour for LEA staff, the average
manner that the Department deems Share for LEAs Serving Students and cost is an estimated $18 per LEA.
contrary to statutory requirements, Teachers in Both Title I and Non-Title Assuming that 10,125 LEAs (or 75
which means that thousands of LEAs in I Schools percent of an estimated 13,500 LEAs
these States may be in the process of with attendance areas) are subject to the
For LEAs using CARES Act funds to
violating the CARES Act as it pertains equitable services provisions of the
to equitable services, it is essential to serve students and teachers in both Title CARES Act and that 7,595 (or 75
clarify those requirements as soon as I and non-Title I schools, the interim percent) of these LEAs will choose to
possible. final rule requires the use of enrollment serve students and teachers in both Title
data to determine the proportional I and non-Title I schools, approximately
2. Analysis of Costs share. For the majority of these LEAs, 1,520 LEAs (20 percent of 7,595 affected
Section 18005 of the CARES Act is enrollment data should already be LEAs) would bear this cost, for a total
intended to ensure that LEAs receiving available for non-public schools that estimated cost of $27,360.
funds under the GEER Fund or ESSER participate in equitable services under
Fund provide equitable services to ESEA programs other than Title I. Costs of Determining the Proportional
students and teachers in non-public Equitable services under those programs Share for LEAs Serving Title I Schools
schools, as determined in consultation are governed by section 8501 of the Only
with representatives of non-public ESEA, which requires in determining For LEAs using CARES Act funds to
schools. In accordance with OMB expenditures for equitable services that serve students and teachers only in Title
Circular A–4 (available at an LEA take into account the number of I schools, the interim final rule provides
www.whitehouse.gov/sites/default/files/ non-public school students to be served. the option to determine the proportional
omb/assets/omb/circulars/a004/a- In complying with this requirement, an share using one of two poverty
4.pdf), we are evaluating the costs and LEA customarily obtains enrollment alternatives. The first is simply to use as
benefits of this interim final rule data from participating non-public the proportional share for CARES Act
compared to a pre-statutory baseline. schools. For such LEAs, complying with purposes the proportional share of Title
This rule defines the measures that may the interim final rule accordingly I funds available for equitable services
be used to determine the proportional imposes no additional burden with under section 1117(a)(4)(A) of the ESEA,
share of funds that LEAs must reserve respect to those schools. which is determined based on residence
for equitable services but does not If an LEA does not already obtain of students from low-income families in
interpret or otherwise alter other enrollment data in this manner from a participating Title I public school
statutory requirements related to non-public school that will participate attendance areas. Using this pre-existing
equitable services. Affected LEAs will in equitable services under the CARES alternative would of course impose no
likely face some administrative costs to Act programs, we expect that, in a additional burden on LEAs.
implement these statutory requirements, majority of States, the LEA can obtain The second alternative is to determine
but the Department largely lacks data to the data immediately from the SEA, the proportional share for equitable
quantify these costs. However, the particularly the approximately 35 SEAs services using data on the number of
Department expects that these entities that collect enrollment data from their students from low-income families who
will largely experience benefits non-public schools on an annual basis.7 attend participating Title I schools and
exceeding these administrative costs. For LEAs in this circumstance, the participating non-public elementary and
Because an LEA has flexibility in the interim final rule similarly imposes no secondary schools in the LEA. Under
manner in which it provides equitable burden, and it imposes a negligible this alternative, an LEA may choose to
services under the CARES Act burden on affected SEAs, which would obtain poverty counts for students in
programs, including the extent to which merely need to share previously non-public schools that wish to
it relies on processes and procedures collected enrollment data through long- participate. We estimate that 12.5
previously established to consult with percent of affected LEAs will implement
non-public school officials and provide 6 For the purpose of this analysis, we assume that
this alternative by obtaining poverty
services under ESEA programs, and an LEA receiving funds under the GEER Fund and counts and that it will take an LEA on
ESSER Fund will use the same measure to
because the Department lacks data on determine the proportional share for each program. average 240 hours to obtain those
the extent to which non-public schools 7 See https://www2.ed.gov/about/inits/ed/non- counts. At $35 per hour for LEA staff,
may choose to participate in equitable public-education/regulation-map/index.html. the average cost is an estimated $8,400
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39486 Federal Register / Vol. 85, No. 127 / Wednesday, July 1, 2020 / Rules and Regulations
per LEA. Assuming that 2,530 LEAs (or teachers in both Title I and non-Title I 3. Net Budget Impacts
25 percent of the estimated 10,125 LEAs schools to determine the proportional We estimate that the discretionary
subject to the equitable services share. As discussed elsewhere in this elements of this interim final rule will
provisions of the CARES Act) will analysis with respect to those LEAs, not have an impact on the Federal
choose to serve students and teachers in enrollment data are generally already budget. This rule specifies the measures
Title I schools only, approximately 315 available. We estimate that only 20 that LEAs may use to determine the
LEAs (12.5 percent of 2,530 affected percent of affected LEAs would need to proportional share of funds for equitable
LEAs) would bear this cost, for a total obtain those data from one or more services under the CARES Act programs
estimated cost of $2,646,000. participating non-public schools, and but does not change the amount of
As discussed elsewhere in this that it would take on average 0.5 hours funding available for such programs. We
document, LEAs may also implement to obtain the data. At $35 per hour for anticipate that $16.2 billion in CARES
this poverty alternative using a LEA staff, the average cost is an Act funds will be disbursed in 2020,
proportionality method, wherein the estimated $18 per LEA. Assuming that and therefore estimate $16.2 billion in
LEA applies the average poverty rate of 315 LEAs (or 12.5 percent of the transfers in 2020 relative to a pre-
its Title I schools to the enrollment in estimated 2,530 LEAs that will choose statutory baseline.
non-public schools that will participate to serve students and teachers in Title
in a CARES Act program to generate 4. Accounting Statement
I schools only) will choose to
poverty estimates for those schools. implement this poverty alternative As required by OMB Circular A–4, in
LEAs that choose to implement this using a proportionality method or, as the following table we have prepared an
alternative using a proportionality accounting statement showing the
permitted, use enrollment data to
method would accordingly need to have classification of the impacts associated
determine the proportional share,
enrollment data from participating non- with the provisions of these regulations
approximately 65 LEAs (20 percent of
public schools, but not poverty data— in 2020. Impacts classified as transfers
that is, the same enrollment data 315 affected LEAs) would bear this cost, are from the Federal Government to
required of LEAs serving students and for a total estimated cost of $1,170. LEAs.
ACCOUNTING STATEMENT: CLASSIFICATION OF ESTIMATED IMPACTS
[In millions]
Category Benefits
Clarity and flexibility in administration of equitable services .............................................................................................. Not Quantified.
Costs
Determining proportional share for equitable services ....................................................................................................... $2.7.
Transfers
Providing educational services in preparation for and response to COVID–19, including for students and teachers in $16,182.
non-public schools.
5. Regulatory Alternatives Considered • Are the requirements in the Regulatory Flexibility Act Certification
As an alternative to the options for regulations clearly stated? The Regulatory Flexibility Act does
determining the proportional share • Do the regulations contain technical not apply to this rulemaking because
provided in this interim final rule, the terms or other wording that interferes there is good cause to waive notice and
Department considered requiring all with their clarity? comment under 5 U.S.C. 553.
LEAs subject to equitable services • Does the format of the regulations The Secretary certifies that these
requirements in the CARES Act to (grouping and order of sections, use of interim final requirements would not
determine the proportional share using headings, paragraphing, etc.) aid or have a significant economic impact on
enrollment data. Ultimately, we reduce their clarity? a substantial number of small entities.
determined that such a requirement • Would the regulations be easier to Under the U.S. Small Business
could be inequitable if an LEA chooses understand if we divided them into Administration’s Size Standards, small
to serve only its Title I schools and more (but shorter) sections? (A entities include small governmental
therefore uses its Title I proportional ‘‘section’’ is preceded by the symbol jurisdictions such as cities, towns, or
share as the proportional share for ‘‘§ ’’ and a numbered heading; for school districts (LEAs) with a
CARES Act purposes. example, § 76.665.) population of less than 50,000.
• Could the description of the Although the majority of LEAs that
Clarity of the Regulations regulations in the SUPPLEMENTARY receive CARES Act funds and are
Executive Order 12866 and the INFORMATION section of this preamble be subject to CARES Act equitable services
Presidential memorandum ‘‘Plain more helpful in making the regulations requirements would qualify as small
Language in Government Writing’’ easier to understand? If so, how? entities under this definition, this rule
require each agency to write regulations • What else could we do to make the will benefit small entities by providing
that are easy to understand. regulations easier to understand? multiple options for determining the
The Secretary invites comments on To send any comments that concern proportional share of funds that must be
how to make these regulations easier to how the Department could make these reserved for equitable services and
understand, including answers to regulations easier to understand, see the clarifying that such entities have
questions such as the following: instructions in the ADDRESSES section. discretion to select the option that
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Federal Register / Vol. 85, No. 127 / Wednesday, July 1, 2020 / Rules and Regulations 39487
minimizes costs and burdens. As public comment on these clearances. $8,400 per LEA. Assuming that 2,530
discussed in the Regulatory Impact Those clearances do not address the LEAs (or 25 percent of the estimated
Analysis, unless an LEA seeks to serve information collection applicable to this 10,125 LEAs subject to the equitable
only Title I schools and determine the rule. Accordingly, the Department is services provisions of the CARES Act)
proportional share for equitable services requesting a separate emergency will choose to serve students and
by obtaining poverty counts based on paperwork clearance from OMB on the teachers in Title I schools only,
student enrollment, the costs associated data collections associated with this approximately 315 LEAs (12.5 percent
with the interim final rule are minimal. interim final rule and will add the of 2,530 affected LEAs) would bear this
We estimate that the vast majority of burden to the clearances currently out cost, for a total estimated cost of
LEAs (9,810 LEAs out of an estimated for public comment. $2,646,000.
10,125 LEAs subject to equitable As discussed in the Analysis of Costs As discussed elsewhere in this
services requirements) will choose to and Benefits section of the Regulatory document, LEAs may also implement
employ a minimally burdensome option Impact Statement in these interim final this poverty alternative using a
in determining the proportional share. regulations, for LEAs that do not already proportionality method, wherein the
Moreover, for any small-entity LEA that have enrollment data for one or more LEA applies the average poverty rate of
chooses to serve only Title I schools and participating non-public schools and its Title I schools to the enrollment in
determine the proportional share for that cannot obtain such data from the non-public schools that will participate
equitable services by obtaining poverty SEA, complying with the interim final in a CARES Act program to generate
counts based on student enrollment, we regulations entails obtaining the data poverty estimates for those schools.
presume the benefit of obtaining directly from those schools through the LEAs that choose to implement this
accurate poverty counts outweighs any consultation process. The Department alternative using a proportionality
associated costs. Finally, we note that believes this will be minimally method would accordingly need to have
all costs entailed in administering the burdensome on these LEAs, which we enrollment data from participating non-
equitable services provisions of the estimate to include 20 percent of public schools, but not poverty data—
CARES Act may be paid for with funds affected LEAs. Specifically, we estimate that is, the same enrollment data
received under the respective CARES that an LEA will have on average two required of LEAs serving students and
Act programs; consequently, neither the non-public schools for which teachers in both Title I and non-Title I
statutory CARES Act equitable services enrollment data are needed and that it schools to determine the proportional
requirements nor the provisions of this will take on average 0.5 total hours to share. With respect to those LEAs,
interim final rule impose any obtain the data from those schools. At enrollment data are generally already
uncompensated costs on small entities. $35 per hour for LEA staff, the average available. We estimate that only 20
cost is an estimated $18 per LEA. percent of affected LEAs would need to
Paperwork Reduction Act of 1995 Assuming that 10,125 LEAs (or 75 obtain those data from one or more
As part of its continuing effort to percent of an estimated 13,500 LEAs participating non-public schools, and
reduce paperwork and respondent with attendance areas) are subject to the that it would take on average 0.5 hours
burden, the Department provides the equitable services provisions of the to obtain the data. At $35 per hour for
general public and Federal agencies CARES Act and that 7,595 (or 75 LEA staff, the average cost is an
with an opportunity to comment on percent) of these LEAs will choose to estimated $18 per LEA. Assuming that
proposed and continuing collections of serve students and teachers in both Title 315 LEAs (or 12.5 percent of the
information in accordance with the I and non-Title I schools, approximately estimated 2,530 LEAs that will choose
Paperwork Reduction Act of 1995 (PRA) 1,520 LEAs (20 percent of 7,595 affected to serve students and teachers in Title
(44 U.S.C. 3506(c)(2)(A)). This helps LEAs) would bear this cost, for a total I schools only) will choose to
ensure that the public understands the estimated cost of $27,360. implement this poverty alternative
Department’s collection instructions, For LEAs using CARES Act funds to using a proportionality method or, as
respondents provide the requested data serve students and teachers only in Title permitted, use enrollment data to
in the desired format, reporting burden I schools, the interim final regulations determine the proportional share,
(time and financial resources) is provide the option to determine the approximately 65 LEAs (20 percent of
minimized, collection instruments are proportional share using one of two 315 affected LEAs) would bear this cost,
clearly understood, and the Department poverty alternatives; however, only one for a total estimated cost of $1,170.
can properly assess the impact of of these alternatives would impose
collection requirements on respondents. additional burden. For the alternative Intergovernmental Review
A Federal agency may not conduct or that imposes additional burden, LEAs The CARES Act programs covered by
sponsor a collection of information would determine the proportional share the interim final rule are not subject to
unless OMB approves the collection for equitable services using data on the Executive Order 12372 and the
under the PRA and the corresponding number of students from low-income regulations in 34 CFR part 79.
information collection instrument families who attend participating Title I Accessible Format: Individuals with
displays a currently valid OMB control schools, which are already available, disabilities can obtain this document in
number. Notwithstanding any other and participating non-public elementary an accessible format (e.g., braille, large
provision of the law, no person is and secondary schools in the LEA. print, audiotape, or compact disc) on
required to comply with, or is subject to Under this alternative, an LEA may request to the program contact person
penalty for failure to comply with, a choose to obtain poverty counts for listed under FOR FURTHER INFORMATION
collection of information if the students in non-public schools that CONTACT.
collection instrument does not display a wish to participate. We estimate that Electronic Access to This Document:
currently valid OMB control number. 12.5 percent of affected LEAs will The official version of this document is
Information collections related to the implement this alternative by obtaining the document published in the Federal
CARES Act programs are included in poverty counts and that it will take an Register. You may access the official
paperwork clearances OMB control LEA on average 240 hours to obtain edition of the Federal Register and the
numbers 1810–0741 and 1810–0743. those counts. At $35 per hour for LEA Code of Federal Regulations at
The Department is currently requesting staff, the average cost is an estimated www.govinfo.gov. At this site you can
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39488 Federal Register / Vol. 85, No. 127 / Wednesday, July 1, 2020 / Rules and Regulations
view this document, as well as all other Emergency Education Relief (GEER) schools based on the total amount of
documents of this Department Fund (Section 18002), formula grants to CARES Act funds received by the LEA
published in the Federal Register, in LEAs under the Elementary and under a CARES Act program prior to
text or portable document format (PDF). Secondary School Emergency Relief any allowable expenditures or transfers
To use PDF you must have Adobe (ESSER) Fund (Section 18003(c)), and by the LEA.
Acrobat Reader, which is available free ESSER SEA Reserve (Section 18003(e)).
(b) Consultation. (1) An LEA must (3) An LEA using funds from a CARES
at the site.
You may also access documents of the promptly consult with representatives Act program in Title I schools under
Department published in the Federal of non-public elementary and secondary paragraph (c)(1)(i) of this section must
Register by using the article search schools during the design and comply with the supplement not
feature at: www.federalregister.gov. development of the LEA’s plans to supplant requirement in section 1118(b)
Specifically, through the advanced spend funds from a CARES Act program of the ESEA, which would prohibit the
search feature at this site, you can limit and before the LEA makes any decision LEA from allocating CARES Act funds
your search to documents published by affecting the opportunities of students to Title I schools and then redirecting
the Department. and teachers in non-public schools to State or local funds to non-Title I
benefit from those funds. As provided in schools, among other things.
List of Subjects in 34 CFR Part 76 section 1117(b)(1) of the ESEA, the LEA (d) Equity. (1) Educational services
Accounting, Administrative practice and non-public school officials shall and other benefits for students and
and procedure, American Samoa, both have the goal of reaching timely
teachers in non-public elementary and
Education, Grant programs—education, agreement on how to provide equitable
secondary schools must be equitable in
Guam, Northern Mariana Islands, and effective programs for non-public
school students and teachers. comparison to services and other
Pacific Islands Trust Territory,Prisons,
Private schools, Reporting and (2) Consultation must occur in benefits for public school students and
recordkeeping requirements, Virgin accordance with section 1117(b) of the teachers participating in CARES Act
Islands, Youth organizations. ESEA, except to the extent inconsistent programs, and must be provided in a
with the CARES Act and this section, timely manner.
Betsy DeVos, such as section 1117(b)(1)(E) and (J)(ii). (2) The measure an LEA uses to
Secretary of Education. (c) Determining proportional share. determine the proportional share under
For the reasons discussed in the (1) To determine the proportional share paragraph (c)(1) of this section does not
preamble, the Secretary amends title 34 of funds for equitable services to limit the obligation of the LEA to
of the Code of Federal Regulations by students and teachers in non-public provide the opportunity to receive
revising part 76 to read as follows: elementary and secondary schools for services to students and teachers in any
each CARES Act program, an LEA must non-public elementary or secondary
PART 76—STATE-ADMINISTERED use one of the following measures. The
school in the LEA.
PROGRAMS LEA need not use the same measure for
each CARES Act program. (e) Secular, neutral, and
■ 1. The authority citation for part 76 (i) An LEA using all its funds under nonideological. Educational services
continues to read as follows: a CARES Act program to serve only and benefits, including materials and
Authority: 20 U.S.C. 1221e–3 and 3474, students and teachers in public schools equipment, an LEA provides to students
unless otherwise noted. participating under Title I, Part A of the and teachers in non-public elementary
ESEA may calculate the proportional and secondary schools under the
§§ 76.663 and 76.664 [Reserved]
share in accordance with paragraph CARES Act programs must be secular,
■ 2. Add reserved §§ 76.663 and 76.664. (c)(1)(ii) of this section or by using— neutral, and nonideological.
■ 3. Add an undesignated center (A) The proportional share of Title I,
Part A funds it calculated under section (f) Public control of funds. An LEA
heading after reserved § 76.664 to read must—
as follows: 1117(a)(4)(A) of the ESEA for the 2019–
2020 school year; or (1) Maintain control of CARES Act
Equitable Services Under the CARES (B) The number of children, ages 5 funds;
Act through 17, who attend each non-public (2) Keep title to and exercise
■ 4. Section 76.665 is added to read as school in the LEA that will participate continuing administrative control of all
follows: under a CARES Act program and are
materials, equipment, and property
from low-income families compared to
purchased with CARES Act funds; and
§ 76.665 Providing equitable services to the total number of children, ages 5
students and teachers in non-public through 17, who are from low-income (3) Provide services with CARES Act
schools. families in both Title I schools and funds directly or through a contract
(a) In general. (1) A local educational participating non-public elementary and with a public or private entity.
agency (LEA) receiving funds under a secondary schools in the LEA. (Authority: 20 U.S.C. 6320, 6321(b); section
CARES Act program must provide (ii) Any other LEA must calculate the 18005 of the CARES Act)
equitable services to students and proportional share based on enrollment
teachers in non-public elementary and in participating non-public elementary §§ 76.666 through 76.669 [Reserved]
secondary schools in the LEA ‘‘in the and secondary schools in the LEA
same manner’’ as provided under compared to the total enrollment in both ■ 5. Add reserved §§ 76.666 through
section 1117 of the Elementary and public and participating non-public 76.669.
Secondary Education Act of 1965 elementary and secondary schools in [FR Doc. 2020–14224 Filed 6–30–20; 8:45 am]
(ESEA), as determined in consultation the LEA. BILLING CODE 4000–01–P
with representatives of non-public (2) An LEA must determine the
schools. proportional share of funds available for
(2) For purposes of this section, the services for students and teachers in
CARES Act programs are the Governor’s non-public elementary and secondary
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- www.govinfo.gov