Rule2022-12296
Final Requirements-American Rescue Plan Act Elementary and Secondary School Emergency Relief Fund
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 8, 2022
Effective
July 8, 2022
Issuing agencies
Education Department
Abstract
The Department of Education (Department) announces requirements for the American Rescue Plan Elementary and Secondary School Emergency Relief (ARP ESSER) Fund, under the American Rescue Plan Act of 2021 (ARP Act). These requirements are intended to promote accountability and transparency by requiring each State educational agency (SEA) to post on its website maintenance of equity information for each applicable local educational agency (LEA).
Full Text
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<title>Federal Register, Volume 87 Issue 110 (Wednesday, June 8, 2022)</title>
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[Federal Register Volume 87, Number 110 (Wednesday, June 8, 2022)]
[Rules and Regulations]
[Pages 34790-34794]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-12296]
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DEPARTMENT OF EDUCATION
34 CFR Chapter II
[Docket ID ED-2021-OESE-0116]
Final Requirements--American Rescue Plan Act Elementary and
Secondary School Emergency Relief Fund
AGENCY: Office of Elementary and Secondary Education, Department of
Education.
ACTION: Final requirements.
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SUMMARY: The Department of Education (Department) announces
requirements for the American Rescue Plan Elementary and Secondary
School Emergency Relief (ARP ESSER) Fund, under the American Rescue
Plan Act of 2021 (ARP Act). These requirements are intended to promote
accountability and transparency by requiring each State educational
agency (SEA) to post on its website maintenance of equity information
for each applicable local educational agency (LEA).
DATES: These requirements are effective July 8, 2022.
FOR FURTHER INFORMATION CONTACT: Britt Jung, U.S. Department of
Education, 400 Maryland Avenue SW, Room 3W113, Washington, DC 20202.
Telephone: (202) 453-5563. Email: <a href="/cdn-cgi/l/email-protection#105543435542565075743e777f66"><span class="__cf_email__" data-cfemail="5a1f09091f081c1a3f3e743d352c">[email protected]</span></a>.
If you use a telecommunications device for the deaf (TDD) or a text
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.
Purpose of Program: The ARP ESSER Fund provides nearly $122 billion
to SEAs and LEAs to help them safely reopen and sustain the safe
operation of schools and address the impacts of the COVID-19 pandemic
by addressing students' academic, social, emotional, and mental health
needs. As a condition of receiving the funds, each SEA and LEA must
comply with multiple requirements, including the maintenance of equity
requirements in section 2004 of the ARP Act.
Program Authority: ARP Act, Public Law 117-2, March 11, 2021.
We published a notice of proposed requirement (NPR) in the Federal
Register on January 3, 2022 (87 FR 57). The NPR contained background
information and our reasons for proposing the requirement.
As discussed in the Analysis of Comments and Changes section
elsewhere in this notice, there are a few differences between the
proposed and final requirements. The final requirements change the
timeline for publishing information on LEAs that are excepted from
local maintenance of equity. The final requirements also clarify the
requirement for an SEA to describe how it is ensuring LEAs are
complying with the maintenance of equity requirements. Additional
technical edits are made to the final requirements for clarity.
Public Comment: In response to our invitation in the NPR, 12
parties submitted comments on the proposed requirement.
Generally, we do not address technical and other minor changes, or
suggested changes the law does not authorize us to make under the
applicable statutory authority. In addition, we do not address general
comments that raised concerns not directly related to the NPR.
Analysis of Comments and Changes: An analysis of the comments and
of changes in the requirements since publication of the NPR follows.
Comment: Some commenters, including a few States, expressed concern
that the proposed timeline to publish LEA-level maintenance of equity
data on an SEA's website regarding which LEAs are excepted from the
maintenance of equity requirements does not leave sufficient time for
the SEA to prepare its data for submission. The commenters suggested
that the proposed March 31, 2022, deadline be extended until June 30,
2022. One commenter suggested altering the date of publication of the
maintenance of equity data to better align with the current annual
reporting timeline for all ARP ESSER funds, which begins in May 2022.
In response to comments and discussions with key stakeholders, we will
set the deadline at 30 days from the publication of this Federal
Register notice.
Discussion: The Department believes it is important for SEAs to
publicly report information and data on those LEAs that must comply
with the maintenance of equity requirements in a timely manner and that
SEAs should already have the data requested in order to ensure that
LEAs are complying with maintenance of equity requirements. At the same
time, the Department understands the difficulties SEAs may have in
accurately reporting data on a condensed timeline. As a result, the
Department has adjusted the timeline to align with the ARP ESSER annual
reporting period and to better fit the needs of SEAs, while also
ensuring timely identification so that stakeholders in each State are
aware of which LEAs must meet the maintenance of equity requirements
prior to State and local allocations in FY 2023.
Changes: The Department changed the initial reporting deadline to
July 8, 2022.
Comment: Several commenters expressed concern that they might be
unable to gather LEA-level maintenance of equity data and post the data
on their SEA website for each LEA in the State that is not excepted
from LEA-level maintenance of equity requirements in time for the
proposed December 31, 2022, deadline. Commenters specifically noted
that Department guidance on reporting per-pupil expenditure data on
Title I, Part A report cards routinely allows SEAs and LEAs to update
report cards with expenditure information as soon as it becomes
available, which is usually after December of each year and may be as
late as the following June.
Discussion: We appreciate the commenters' concerns and note that
the LEA-level maintenance of equity data for each LEA in the State that
is not excepted from LEA-level maintenance of equity requirements
during fiscal year 2022, which is the 2021-2022 school year, is due
December 31, 2022. The Department recognizes that this may not align
with per-pupil expenditure data published for Title I, Part A report
cards. However, this reporting requirement simply allows, but does not
require, LEAs to use such expenditure data for the purpose of
demonstrating compliance with the maintenance of equity requirements.
An LEA may also rely on allocations or budget data to determine whether
it maintained equity. Further, because each SEA collects and finalizes
per-pupil expenditure data on a different timeline, the Department is
allowing SEAs to request a reasonable extension of the December 31,
2022, reporting deadline depending on State-specific circumstances.
Changes: None.
Comment: Several commenters expressed concern about how staffing
decisions within an LEA impact its ability to maintain equity. For
example, a commenter noted that hiring new staff could create a decline
in spending, as newer staff are typically less expensive than leaving
or retiring staff, even though staff numbers remain the same. In this
case, the LEA would maintain staffing equity under section
2004(c)(1)(B) of the ARP Act, but not maintain funding equity under
section 2004(c)(1)(A) of the ARP Act because the new staff salaries
cost less.
Commenters also discussed whether a shift to using contracted
supports would look like a decline in the number of full-time
equivalent (FTE) staff while actually reflecting an increase in quality
services.
[[Page 34791]]
Discussion: Under section 2004(c)(1) of the ARP Act, an LEA must
maintain equity two ways: per-pupil funding and FTE staffing. The final
requirements ensure transparency on how LEAs that are not excepted from
local maintenance of equity are maintaining equity in both ways. When
determining how to maintain staffing equity, an LEA must include all
employees, including those hired by contract who perform school-level
services. Therefore, any shift from direct employees to contracted
services should not impact an LEA's ability to maintain staffing equity
but may impact whether an LEA maintains fiscal equity.
Similarly, replacing experienced staff with less experienced staff
will not affect an LEA's ability to maintain staffing equity. It may,
however, affect the LEA's ability to maintain fiscal equity, depending
on other fiscal considerations in the LEA for the applicable year. For
example, consistent with the intent of the maintenance of equity
requirements, in order to maintain fiscal equity where an experienced
teacher receiving a higher salary is replaced with a less experienced
teacher, the LEA may need to provide additional fiscal resources and
supports to meet the needs of students in high-poverty schools.
Changes: None.
Comment: Several commenters asserted that proposed paragraph (d)
would allow LEAs to use per-pupil expenditures to demonstrate how an
LEA is maintaining staffing equity under section 2004(c)(1)(B).
Commenters noted that the required FTE analysis is distinct from
reporting on student-level spending. These commenters contended that
offering States this flexibility would be at the cost of representative
data and requested further detailed guidance should we choose to retain
this flexibility.
Discussion: The benefit of publicly posting local maintenance of
equity data is to facilitate public accountability so that parents and
families will be able to access publicly available information on how
each LEA in the State is maintaining both fiscal and staffing equity.
The Department agrees with the commenters that the flexibility in
proposed paragraph (d) aligns only with the maintenance of equity per-
pupil funding analysis in section 2004(c)(1)(A) of the ARP Act. As a
result, the final requirements clarify that this flexibility applies
only to demonstrating compliance for per-pupil funding, and not
maintaining staffing equity under section 2004(c)(1)(B) of the ARP Act.
Changes: The Department clarified that paragraph (d) of the final
requirements applies to reporting data in paragraphs (c)(1) and (2) but
not (c)(3) and (4) of the final requirements.
Comment: One commenter noted the complexity of the maintenance of
equity requirements and suggested revisions to the regulatory scheme to
allow for compliance to be met through either meeting the per-pupil
spending requirement in section 2004(c)(1)(A) of the ARP Act or the
full-time-equivalent staff requirement in section 2004(c)(1)(B) of the
ARP Act.
Discussion: Each LEA must demonstrate that it has maintained equity
for each high-poverty school in two ways as a condition of receiving
ARP ESSER funds. Under section 2004(c) of the ARP Act, for each school
identified by the LEA as a high-poverty school, the LEA may not, in FY
2022 or FY 2023, (1) reduce per-pupil funding (from combined State and
local funding) by an amount that exceeds the total reduction, if any,
in LEA per-pupil funding for all schools served by the LEA in such
fiscal year; or (2) reduce the number of FTE staff per-pupil by an
amount that exceeds the total reduction, if any, in FTE staff per-pupil
in all schools served by the LEA in such fiscal year. The statute does
not allow an LEA to comply with only one of the two requirements.
Changes: None.
Comment: Several commenters requested further guidance on the
options available to SEAs in designing and implementing their own
oversight processes to ensure LEAs comply with the maintenance of
equity requirements. The commenters requested examples of allowable
processes and parameters on how an LEA might remedy any violation of
the maintenance of equity requirements.
Discussion: The final reporting requirements are established as a
tool for States to identify and work with those LEAs that should be
targeted for technical assistance to ensure their high-poverty schools
are protected from any reduction of per-pupil funding by an amount that
exceeds the overall per-pupil reduction in the LEA. The ARP Act excepts
an LEA from the local maintenance of equity requirements if the LEA:
<bullet> has a total enrollment of less than 1,000 students,
<bullet> operates a single school,
<bullet> serves all students within each grade span with a single
school, or
<bullet> demonstrates an exceptional or uncontrollable
circumstance, such as unpredictable changes in student enrollment or a
precipitous decline in the financial resources of the LEA, as
determined by the Secretary of the U.S. Department of Education.
The Secretary has determined that an LEA that did not have an
aggregate reduction in combined State and local per-pupil funding in FY
2022 compared to FY 2021, or in FY 2023 compared to FY 2022, has
demonstrated an exceptional or uncontrollable circumstances to warrant
an exception from maintaining equity for that fiscal year.
By narrowing the number of LEAs in the State that must comply with
the local maintenance of equity requirements, each SEA can then review
funding and FTE staffing data within the remaining LEAs and provide
technical assistance on how an LEA can ensure compliance for FY 2022
and FY 2023. If an LEA does not maintain equity and cannot make
adjustments in that year, then the LEA may remedy this violation by
making adjustments to funding and FTE staffing in the next year to
ensure that high-poverty schools in the LEA are treated equitably. The
Department will continue to provide technical assistance to States on
how to maintain equity.
Changes: None.
Comment: One commenter recommended that the Department create an
optional reporting template for SEAs to use to report the required
information in paragraph (a) on excepted LEAs.
Discussion: Each State must publish the names of LEAs that are
excepted under each exception category detailed in paragraph (a). Each
State must determine the most appropriate way to publish and list this
information so that parents, families, and the general public in the
State will be able to access and understand the information. To support
States with this requirement, the Department will make available on its
website an example of how a State may publicly post this information,
for optional State use.
Change: None.
Comment: Several commenters expressed their support for proposed
paragraph (b) to publish a general description of how the SEA is
ensuring that its high-poverty schools are protected from any reduction
of per-pupil funding by an amount that exceeds the overall per-pupil
reduction in the LEA, if any, such that the LEA can make any necessary
adjustments in a timely manner. The commenters suggested that such
description be filed as a supplement to the approved ARP ESSER State
Plan. However, some commenters requested that the Department reduce the
burden of this
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requirement on SEAs when establishing the final requirements.
Discussion: The benefit of publicly posting the local maintenance
of equity data is to facilitate public accountability so that parents,
families, and other education stakeholders will be able to access
publicly available information on how LEAs are maintaining fiscal and
staffing equity. By requiring SEAs to publish information and data on
how LEAs are maintaining equity, the Department is providing the public
access to this information. The Department has determined that the
general description in proposed paragraph (b) is necessary to provide
transparency on efforts the SEA is making to ensure that those LEAs
that did not maintain equity take remedial efforts. As such, the
Department has clarified this description in the final requirements.
Further, although we appreciate the commenters' suggestion, we decline
to require that States submit this information as an amendment to their
ARP ESSER State Plan.
Changes: The Department clarified the description in paragraph (b).
Comment: In the preamble to the proposed requirement, the
Department solicited feedback on whether an SEA should be able to
publish general information on how LEAs in the State are complying with
maintenance of equity rather than the specific proposed requirement.
One commenter specifically recommended against allowing SEAs to
alternatively publish general data for maintaining equity and cautioned
that it would not allow for a meaningful evaluation of whether the
maintenance of equity requirements were met by LEAs in the State. This
commenter instead recommended an extended timeline to allow SEAs to
gather the specific information and data in the proposed requirement.
Discussion: The Department appreciates the feedback that allowing
an SEA to publish general information rather than the specific data and
information proposed by the Department may result in less meaningful
information to parents, families, and stakeholders. As a result, the
Department declines to include this alternative approach in the final
requirements and instead will require specific information and data
from all States.
Change: None.
Comment: One commenter asserted that current per-pupil expenditure
data are often inconsistent and not always useful to parents and
advocates and requested a standardized expenditure reporting framework
among LEAs. The commenter noted that available data do not always make
sense alongside other data sources. Another commenter similarly
requested further guidance on this potential use of data and noted that
it is hard to provide oversight on per-pupil expenditure data before
the end of the school year, when they can no longer be adjusted.
Discussion: The Department appreciates the concerns of the
commenters and notes that the increased flexibility in the use of per-
pupil expenditure data is a response to prior public feedback
requesting that the Department provide this flexibility to demonstrate
compliance with maintenance of equity because many LEAs do not budget
or allocate spending at the school level. Given that the maintenance of
equity requirements apply to two fiscal years and are not an annual
reporting requirement, the Department is hesitant to require all SEAs
and LEAs to change reporting structures and systems for this ARP Act
requirement. As a result, the Department determined that the need for
flexibility and transparency within each LEA and SEA outweighs the need
for consistent data across all LEAs in the country.
In response to the challenge that one commenter identified
regarding the flexibility to use per-pupil expenditure data while also
ensuring that adjustments may be made to comply with the requirement,
the Department acknowledges that LEAs using such per-pupil expenditure
flexibility will not know whether they maintained equity until after
the school year ends and, thus, will not be able to remedy a
maintenance of equity violation for that school year. In deciding
whether to use per-pupil expenditure data, an LEA may review prior-year
per-pupil expenditure data to inform its approach to monitoring and
assess the likelihood of a maintenance of equity violation. Also, as
noted in response to a prior comment, if an LEA does not maintain
equity and cannot make adjustments in that year, the LEA may make
adjustments to funding and FTE staffing in the next year to ensure that
high-poverty schools in the LEA are treated equitably.
Changes: None.
Comment: Multiple commenters requested confirmation that an SEA
only needs to list excepted LEAs, and not provide detail on why they
are excepted.
Discussion: Paragraph (a)(1) specifically notes that an SEA must
identify each LEA in the State that is excepted from LEA-level
maintenance of equity requirements under section 2004(c)(2) of the ARP
Act for each of the exception reasons. As a result, the Department
expects an SEA to identify each LEA that fits within each of the five
categories of exceptions listed in paragraph (a). An SEA may not just
list all LEAs in the State that are excepted without noting a reason
why they are excepted. If more than one exception applies to an LEA
(e.g., the LEA operates a single school (paragraph (a)(1)(i)) and its
enrollment is under 1,000 (paragraph (a)(1)(ii))), an SEA should have a
consistent process for categorizing excepted LEAs into at least one of
the exceptions listed in paragraph (a)(1)(i)-(v).
Changes: The Department clarified paragraph (a)(1) to indicate that
an SEA must identify a reason each LEA is excepted from the maintenance
of equity requirements.
Comment: Multiple commenters asked whether LEAs may continue to
apply to the Department for an exception to the local maintenance of
equity requirements under section 2004(c)(2)(D) of the ARP Act after
the SEA's reporting deadline.
Discussion: In order for each SEA to accurately report on which
LEAs are excepted from the maintenance of equity requirements for FY
2022, all LEAs that are able to demonstrate an exceptional or
uncontrollable circumstance under section 2004(d)(2)(D) of the ARP Act
in FY 2022 should do so prior to the updated July 8, 2022, reporting
deadline. LEAs that did not have an aggregate reduction in combined
State and local per-pupil funding in FY 2022 compared to FY 2021, or in
FY 2023 compared to FY 2022, should submit Appendix B to the SEA. If an
LEA did have an aggregate reduction in funding, but otherwise is able
to demonstrate an exception or uncontrollable circumstance, then an LEA
should submit an exception for FY 2022 to the Department by July 8,
2022 and notify the SEA of the request. For FY 2023, LEAs should submit
exception requests by the November 1, 2022, reporting deadline. The
Department makes SEAs aware of final determinations in cases when an
LEA applies directly to the Department for an exception. (Note: The
requests for exceptions referenced in this response are for LEAs that
cannot sign Appendix B at <a href="https://oese.ed.gov/files/2021/12/Maintenance-of-Equity-updated-FAQs_12.29.21_Final.pdf">https://oese.ed.gov/files/2021/12/Maintenance-of-Equity-updated-FAQs_12.29.21_Final.pdf</a>. LEAs that can
sign Appendix B do so and notify their SEA.)
Changes: None.
Comment: One commenter objected to the $60,000 cost assumption in
the cost-benefit analysis as unrealistic.
Discussion: We appreciate the commenter's concerns and recognize
the
[[Page 34793]]
amount of work required to meet these requirements as a whole. We
further reviewed our cost- benefit analysis of the final requirement
and provided additional information regarding the accuracy of the cost
assumption in the Regulatory Impact Analysis section. The cost-benefit
analysis is not intended to address the cost of compliance with the
entire maintenance of equity requirements; rather, the analysis is
intended to reflect the cost of the SEA publishing data that already
exist. We believe that the burden outlined in the rule could be offset
with ESSER administrative cost funds under section 2001(f)(4) the ARP
Act.
Changes: None.
Final Requirements:
The Department establishes the following requirements for this
program. We may apply these requirements in any year in which this
program is in effect.
(a) By July 8, 2022, for FY 2022, which is the 2021-2022 school
year, and by November 1, 2022, for FY 2023, which is the 2022-2023
school year, a State educational agency (SEA) must publish the
following local educational agency (LEA)-level maintenance of equity
data on its website:
(1) The identity of each LEA in the State that is excepted from
LEA-level maintenance of equity requirements under section 2004(c)(2)
of the ARP Act and indicate the reason for exception as follows:
(i) The LEA has a total enrollment of less than 1,000 students.
(ii) The LEA operates a single school.
(iii) The LEA serves all students within each grade span with a
single school.
(iv) The LEA has been granted an exception by the Department due to
an exceptional or uncontrollable circumstance under section
2004(c)(2)(D) of the ARP Act.
(v) The LEA has certified to the SEA that it did not have an
aggregate reduction in combined State and local per-pupil funding,
thereby justifying an exceptional or uncontrollable circumstance under
section 2004(c)(2)(D) of the ARP Act, in the fiscal year for which the
exception applies.
(2) For each LEA that is not excepted from the LEA-level
maintenance of equity requirements under paragraph (a)(1), the identity
of each ``high poverty'' school, as defined in section 2004(d)(4) of
the ARP Act, in that LEA.
(b) By July 8, 2022 for FY 2022, which is the 2021-2022 school year
and by November 1, 2022 for FY 2023, which is the 2022-2023 school
year, each SEA must publish on its website a description of how the SEA
will ensure that each LEA that is not excepted from LEA-level
maintenance of equity requirements is ensuring that its high-poverty
schools are protected from any reduction of per-pupil funding by an
amount that exceeds the overall per-pupil reduction in the LEA, if any,
such that the LEA can make any necessary adjustments in a timely manner
including information on when the SEA will determine LEAs are not
compliant and the date that the SEA will require non-compliant LEAs to
describe what adjustments the LEA will make to be in compliance prior
to the start of the next school year.
(c) By December 31 following each applicable school year (e.g.,
December 31, 2022, for FY 2022, which is the 2021-2022 school year) or
such other date as the Department may approve upon request from an SEA
due to the SEA's specific circumstances, an SEA must publish the
following LEA-level maintenance of equity data on its website for each
LEA in the State that is not excepted from LEA-level maintenance of
equity requirements under paragraph (a)(1):
(1) The per-pupil amount of funding for each high-poverty school in
the LEA in FYs 2021, 2022, and 2023, as applicable for the year for
which the data are published.
(2) The per-pupil amount of funding in the aggregate for all
schools in the LEA, on a districtwide basis or by grade span, in FYs
2021, 2022, and 2023, as applicable for the year for which the data are
published.
(3) The per-pupil number of full-time-equivalent (FTE) staff (which
may be indicated as the number of students per FTE staff) for each
high-poverty school in the LEA in FYs 2021, 2022, and 2023, as
applicable for the year for which the data are published.
(4) The per-pupil number of FTE staff (which may be indicated as
the number of students per FTE staff) in the aggregate for all schools
in the LEA, on a districtwide basis or by grade span, in FYs 2021,
2022, and 2023, as applicable for the year for which the data are
published.
(5) Whether the LEA did not maintain equity for any high-poverty
school in FY 2022 or 2023, as applicable for the year for which the
data are published.
(d) For the purpose of paragraph (c)(1) and (2), an SEA and its
LEAs may rely on the applicable per-pupil expenditure data required to
be included on the State report card pursuant to section
1111(h)(1)(C)(x) of the Elementary and Secondary Education Act of 1965.
(e) All data required to be published under paragraphs (a)-(d) must
be published in a way that is machine-readable and accessible, in a
location accessible for parents and families. LEA- and school-level
data must be listed by the applicable National Center for Education
Statistics (NCES) LEA ID and school ID, as applicable.
Executive Orders 12866 and 13563
Regulatory Impact Analysis
Under Executive Order 12866, the Office of Management and Budget
(OMB) must determine whether this regulatory action is ``significant''
and, therefore, subject to the requirements of the Executive order and
subject to review by OMB. Section 3(f) of Executive Order 12866 defines
a ``significant regulatory action'' as an action likely to result in a
rule that may--
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or
Tribal governments or communities in a material way (also referred to
as an ``economically significant'' rule);
(2) Create serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles stated in the
Executive Order.
This final regulatory action is not a significant regulatory action
subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed this final regulatory action under Executive
Order 13563, which supplements and explicitly reaffirms the principles,
structures, and definitions governing regulatory review established in
Executive Order 12866. To the extent permitted by law, Executive Order
13563 requires that an agency--
(1) Propose or adopt regulations only on a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives and taking into
account--among other things and to the extent practicable--the costs of
cumulative regulations;
(3) In choosing among alternative regulatory approaches, select
those approaches that maximize net benefits
[[Page 34794]]
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather
than the behavior or manner of compliance a regulated entity must
adopt; and
(5) Identify and assess available alternatives to direct
regulation, including economic incentives--such as user fees or
marketable permits--to encourage the desired behavior, or provide
information that enables the public to make choices.
Executive Order 13563 also requires an agency ``to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible.'' The Office of
Information and Regulatory Affairs of OMB has emphasized that these
techniques may include ``identifying changing future compliance costs
that might result from technological innovation or anticipated
behavioral changes.''
We are issuing these final requirements only on a reasoned
determination that their benefits would justify their costs. In
choosing among alternative regulatory approaches, we selected the
approach that would maximize net benefits. Based on an analysis of
anticipated costs and benefits, we believe that this final regulatory
action is consistent with the principles in Executive Order 13563.
We also have determined that this final regulatory action does not
unduly interfere with State, local, and Tribal governments in the
exercise of their governmental functions.
In accordance with the Executive orders, the Department has
assessed the potential costs and benefits, both quantitative and
qualitative, of this final regulatory action. The potential costs are
those resulting from statutory requirements and those we have
determined as necessary for administering the Department's programs and
activities. The benefit of publicly posting the local maintenance of
equity data is to facilitate public accountability so that parents and
families will be able to access publicly available information on how
LEAs are maintaining fiscal and staffing equity. By requiring SEAs to
publish information and data on how LEAs are maintaining equity, the
Department is providing the public access to this information.
Potential Costs and Benefits
The Department has analyzed the costs and benefits of complying
with the final requirements. Due to the varying capacity and
administrative structures of affected entities, we cannot estimate,
with absolute precision, the likely effects of the final requirements.
However, as discussed below, we estimate that the final requirements
will have a net cost of $60,000 over two years.
As an initial matter, the Department recognizes that staff at SEAs
and LEAs nationwide expend considerable effort every year on education
finance, both in their general supervisory capacity and as part of
their efforts to comply with the maintenance of equity requirements in
the ARP Act. The analysis below is not an attempt to quantify those
efforts. Rather, this analysis is limited only to the incremental cost
of complying with the final requirements (e.g., through public
reporting).
We assume that a representative (management analyst at $53.79 per
hour) from each of the 50 States, the District of Columbia, and the
Commonwealth of Puerto Rico (hereafter collectively referred to as
States) will review the final requirements. We assume that such review
will take, on average, one hour per State for a one-time cost of
approximately $2,800.
We assume that, for each State, a management analyst will spend
approximately eight hours, on average, compiling the relevant data and
preparing it for posting. Within this estimate, we assume a management
analyst would employ any necessary data suppression rules, add NCES
identifiers, and make any necessary formatting changes for posting of
the data. We assume that posting the data online would take a network
administrator ($59.09 per hour) approximately 30 minutes. In total, we
assume posting data will cost approximately $23,900 per year.
Finally, we assume that approximately 20 States would need to
update their data after initial posting. We assume the updates will
take a management analyst approximately four hours to complete and will
require 30 minutes for a network administrator to post. In total, we
assume posting corrections will cost approximately $4,900 per year.
Regulatory Flexibility Act Certification
The Secretary certifies that this final regulatory action would not
have a significant economic impact on a substantial number of small
entities. The U.S. Small Business Administration Size Standards define
``small entities'' as for-profit or nonprofit institutions with total
annual revenue below $7,000,000 or, if they are institutions controlled
by small governmental jurisdictions (that are comprised of cities,
counties, towns, townships, villages, school districts, or special
districts), with a population below 50,000.
This final regulatory action would affect only States, none of
which is a small entity for the purpose of this analysis.
Paperwork Reduction Act
The final requirements contain information collection requirements
that are approved by OMB under OMB control number 1810-0759.
Intergovernmental Review: The ARP ESSER program is not subject to
Executive Order 12372 and the regulations in 34 CFR part 79.
Accessible Format: On request to the program contact person listed
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities
can obtain this document and a copy of the application package in an
accessible format. The Department will provide the requestor with an
accessible format that may include Rich Text Format (RTF) or text
format (txt), a thumb drive, an MP3 file, braille, large print,
audiotape, or compact disc, or other accessible format.
Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. You may
access the official edition of the Federal Register and the Federal
Regulations at <a href="http://www.govinfo.gov">www.govinfo.gov</a>. At this site you can view this
document, as well as all other documents of this Department published
in the Federal Register, in text or Adobe Portable Document Format
(PDF). To use PDF, you must have Adobe Acrobat Reader, which is
available free at the site.
You may also access documents of the Department published in the
Federal Register by using the article search feature at:
<a href="http://www.federalregister.gov">www.federalregister.gov</a>. Specifically, through the advanced search
feature at this site, you can limit your search to documents published
by the Department.
Mark Washington,
Deputy Assistant Secretary for Administration, Office of Elementary and
Secondary Education.
[FR Doc. 2022-12296 Filed 6-7-22; 8:45 am]
BILLING CODE 4000-01-P
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