34790 Federal Register / Vol. 87, No. 110 / Wednesday, June 8, 2022 / Rules and Regulations 

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. 

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: ESSERF@ed.gov. 

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 Statespecific 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 fulltime equivalent (FTE) staff while 

actually reflecting an increase in quality 

services. 


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Federal Register / Vol. 87, No. 110 / Wednesday, June 8, 2022 / Rules and Regulations 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 schoollevel 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 perpupil reduction in the LEA. The ARP 

Act excepts an LEA from the local 

maintenance of equity requirements if 

the LEA: 

• has a total enrollment of less than 

1,000 students, 

• operates a single school, 

• serves all students within each 

grade span with a single school, or 

• 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 perpupil 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 perpupil 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 perpupil 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 perpupil 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 highpoverty 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 https://oese.ed.gov/files/2021/12/ 

Maintenance-of-Equity-updated-FAQs_

12.29.21_Final.pdf. 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 costbenefit analysis as unrealistic. 

Discussion: We appreciate the 

commenter’s concerns and recognize the 


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Federal Register / Vol. 87, No. 110 / Wednesday, June 8, 2022 / Rules and Regulations 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 highpoverty schools are protected from any 

reduction of per-pupil funding by an 

amount that exceeds the overall perpupil 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-timeequivalent (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 machinereadable and accessible, in a location 

accessible for parents and families. LEAand 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 


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34794 Federal Register / Vol. 87, No. 110 / Wednesday, June 8, 2022 / Rules and Regulations 

(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 www.govinfo.gov. 

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: www.federalregister.gov. 

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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