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Federal Register / Vol. 86, No. 131 / Tuesday, July 13, 2021 / Rules and Regulations
Appropriations Act, 2021 CRRSA Act, except that 1 An SEA may provide such services or assistance only to an eligible nonpublic school that enrolls a significant percentage of students from low-income families and is most impacted by the COVID19 emergency; and 2 An SEA may not use such funds to provide reimbursements to any nonpublic school.
b Determining non-public schools to be served.
1 To provide services or assistance to a non-public school under paragraph a, an SEA must determine, consistent with the States approved application for EANS funding under the ARP Act, that the school i Enrolls a significant percentage of students from low-income families in accordance with paragraphs b2 and c of this section; and ii Is most impacted by the COVID
19 emergency in accordance with paragraph b3 of this section.
2 A non-public school enrolls a significant percentage of students from low-income families if the percentage of students from low-income families enrolled in such school meets or exceeds i 40 percent; or ii An alternate significant percentage approved by the Secretary in the States application for EANS funding under the ARP Act that is based on circumstances in the State, which may be A The States average percentage of students from low-income families in public and non-public schools;
B The average percentage of students from low-income families in non-public schools in the State that, for example, applied for or participated in the EANS
program as authorized by the CRRSA
Act; or C Other factors that the State demonstrates support an alternate significant poverty percentage.
3i A non-public school is most impacted by the COVID19 emergency based on one or more of the following factors A The number of COVID19
infections per capita in the community or communities served by the nonpublic school;
B The number of COVID19-related deaths per capita in the community or communities served by the non-public school;
C Data on the academic impact of lost instructional time and the social, emotional, and mental health impacts on students attending the non-public school attributable to the disruption of instruction caused by the COVID19
emergency; or
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D The economic impact of the COVID19 emergency on the community or communities served by the non-public school.
ii In addition to using one or more of the factors identified in paragraph b3i, an SEA may use other factors included in the States approved application for EANS funding under the ARP Act to determine that a non-public school is most impacted by the COVID
19 emergency.
4 An SEA must publish on its website, on or before the date it makes applications for EANS services or assistance under the ARP Act available to non-public schools, the States approved i Minimum percentage to determine whether a non-public school enrolls a significant percentage of students from low-income families;
ii The sources of poverty data the State will use to determine counts of students from low-income families in a non-public school; and iii Factors to determine whether a non-public school is most impacted by the COVID19 emergency.
c Determining low-income counts.
1 To be counted as a student from a low-income family for purposes of this section, a student must be aged 5
through 17 from a family whose income does not exceed 185 percent of the 2020
Federal poverty level.
2 To obtain a count of students from low-income families enrolled in a nonpublic school under paragraph c1, an SEA may use one or more of the following sources of data, provided the poverty threshold is consistent across sources i Data on student eligibility for free or reduced-price lunch under the Richard B. Russell National School Lunch Act 43 U.S.C. 1751 et seq.;
ii Data from the E-rate program administered by the Federal Communications Commission 47 CFR
54.500, 54.505b;
iii Data from a different source, such as scholarship or financial assistance data; or iv Data from a survey developed by the SEA.
Waiver of Notice and Comment Rulemaking and Delayed Effective Date Under the Administrative Procedure Act APA 5 U.S.C. 551559, the Department generally offers interested parties notice of and the opportunity to comment on proposed requirements.
However, the APA provides that an agency is not required to conduct notice and comment rulemaking when the agency for good cause finds . . . that notice and public procedure thereon are
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impracticable, unnecessary, or contrary to the public interest. 5 U.S.C.
553bB.
Here, there is good cause for waiving notice and comment rulemaking. Notice and comment rulemaking would be impracticable because the time involved would preclude emergency funds being available to meet exigent needs of nonpublic schools resulting from the COVID19 emergency, including the provision of services to address the academic impact of lost instructional time among non-public school students.
The COVID19 emergency continues to present extraordinary circumstances, including widespread school closures, significant loss of instructional time, and trauma for students, educators, and other staff.
The final requirements provide reasonable parameters to address ambiguities regarding how to provide services or assistance to eligible nonpublic schools that enroll a significant percentage of students from low-income families and are most impacted by the COVID19 emergency. Accordingly, the final requirements are critical to ensuring that SEAs effectively and timely implement the ARP EANS
program. In addition, the Department believes it is important to make clear the continued applicability of EANS
requirements under the CRRSA Act, except as otherwise provided in the ARP Act. However, going through the full rulemaking process would delay the ability of SEAs to provide services or assistance to eligible non-public schools using ARP EANS funds, which are emergency funds intended to meet the immediate needs of non-public schools, including their students and teachers.
Establishing these final requirements now, without the delay of notice and comment rulemaking, enables SEAs to effectively use ARP EANS funds to provide services or assistance to nonpublic schools to address the immediate safety and academic needs of students and help such schools safely return to or continue in-person instruction.
The Department has moved with urgency to publish this document in an expedited fashion to ensure timely availability of funds to non-public schools. The ARP Act was signed into law on March 11, 2021. Just one month later, on April 12, 2021, the Department published a request for information from the public to obtain comments that were due on April 26, 2021. After reviewing and considering the 66
comments received, the Department is publishing this document about two months after the comments were received.

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