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Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / Notices ARP ESSER funds as well as ESSER
funds granted through prior Federal pandemic relief funding to implement policies in line with guidance from the CDC that support the reopening and operation of school facilities to effectively maintain health and safety.7
As noted, multiple studies have shown that transmission rates within school settings, when multiple prevention strategies are in place, are typically lower than or similar to community transmission levels.8 The Administration fully supports and encourages all school districts to adopt CDC-recommended prevention strategies in order to prevent transmission of COVID19 in schools.
However, some States have taken steps that restrict an LEAs implementation of local health and safety policies aligned with CDC
guidance, including the withholding of critical resources needed to support their implementation. For example, some States have prohibited or otherwise blocked LEAs from adopting universal masking strategies. The Department has issued letters of concern to these States 9 because trying to prevent school districts from adopting these policies puts the health and safety of students and school staff at greater risk and threatens the ability of school districts to safely sustain in-person instruction. Additionally, for example, some States have gone so far as to withhold resources from or impose financial penalties on LEAs that are following CDC guidance.
On August 18, 2021, President Biden issued the Memorandum on Ensuring a Safe Return to In-Person School for the Nations Children. The Presidential Memorandum directs the Department to assess all available tools in taking action, as appropriate and consistent with applicable law, to ensure that:
i Governors and other officials are taking all appropriate steps to prepare for a safe return to school for our Nations children, including not ESSER funds for a broad range of allowable activities. Each section authorizes an LEA to use ESSER funds for any of the following activities.
Accordingly, neither an SEA nor a State legislature has the authority to limit an LEAs use of ESSER
formula funds. See Question A6 in the Departments FAQ guidance: https oese.ed.gov/
files/2021/05/ESSER.GEER_.FAQs_5.26.21_745AM_
FINALb0cd6833f6f46e03ba2d97d30aff953
260028045f9ef3b18ea602db4b32b1d99.pdf.
7 Section 2001e2Q of the ARP Act.
8 See: https www.cdc.gov/coronavirus/2019ncov/science/science-briefs/transmission_k_12_
schools.html.
9 The letters are available to the public at https
oese.ed.gov/offices/american-rescue-plan/
american-rescue-plan-elementary-and-secondaryschool-emergency-relief.

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standing in the way of local leaders making such preparations; and ii Governors and other officials are giving students the opportunity to participate and remain in safe full-time, in-person learning without compromising their health or the health of their families or communities.
The Presidential Memorandum further notes that: some State officials have even threatened to impose personal financial consequences on school officials who are working tirelessly to put student health and safety first and to comply with their legal obligations to their communities to further the essential goal of a safe, inperson education for all students. Our priority must be the safety of students, families, educators, and staff in our school communities. Nothing should interfere with this goal. 10
Consequently, in cases where LEAs incur financial penalties related to the implementation of science-based strategies recommended by the CDC to prevent the spread of COVID19 in schools and support sustained, full-time in-person learning, it is appropriate for the Department to provide grant assistance to help offset the impact of such financial penalties and support activities to improve student safety and well-being by advancing strategies consistent with CDC guidance to reduce transmission of COVID19 in schools.
Priority: This notice contains one absolute priority. We are establishing this priority for the FY 2021 and FY
2022 Project SAFE grant program in accordance with section 437d of the General Education Provisions Act GEPA, 20 U.S.C. 1232d.
Absolute Priority: For FY 2021 and FY
2022, this priority is an absolute priority. Under 34 CFR 75.105c3, we will consider only applications that meet the absolute priority.
This priority is:
Supporting LEAs and local education leaders efforts to improve student safety and well-being in LEAs that have been financially penalized by their SEA or other State entity for adopting and implementing strategies consistent with CDC guidance to prevent the spread of COVID19.
Under this absolute priority, the Department awards funds to support activities to improve student safety and well-being by advancing strategies consistent with CDC guidance to reduce transmission of COVID19 in schools by addressing the harmful impact of 10 See: https www.federalregister.gov/
documents/2021/08/23/2021-18223/ensuring-a-safe -return-to-in-person-school-for-the-nationschildren.

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disruptive State penalties imposed on the LEA for implementing strategies consistent with CDC guidance. These activities could include, for example, activities to facilitate the continued implementation of strategies aligned with CDC guidance, despite the Stateimposed penalty, and/or to maintain LEA and school stability, such as by enabling the LEA to maintain activities and/or staffing levels or compensation that would otherwise be negatively impacted or reduced due to financial penalties levied on the LEA for implementing strategies aligned with CDC guidance, including but not limited to a reduction in salaries for the superintendent or school board members.
Waiver of Proposed Rulemaking:
Under the Administrative Procedure Act 5 U.S.C. 553, the Department generally offers interested parties the opportunity to comment on proposed priorities and requirements. Section 437d1 of GEPA, however, allows the Secretary to exempt from rulemaking requirements regulations governing the first grant competition under a new or substantially revised program authority.
This is the first grant competition for this program under title IV, part F, subpart 3 of the Elementary and Secondary Education Act ESEA 20
U.S.C. 7281 and therefore qualifies for this exemption. Section 437d2 of GEPA allows the Secretary to exempt from rulemaking requirements regulations for which he determines that the requirements of this subsection will cause extreme hardship to the intended beneficiaries of the program affected by such regulations. The Secretary determined notice and comment rulemaking would cause extreme hardship by dangerously delaying critical health and safety measures for students, educators, and staff. Therefore this competition qualifies for this exemption as well. In order to ensure timely grant awards, the Secretary has decided to forgo public comment on the priorities and requirements under section 437d of GEPA. These priorities and requirements will apply to this FY
2021/2022 grant competition and any subsequent year in which we make awards under this competition.
Program Authority: Section 4631a1B of the ESEA 20 U.S.C.
7281a1B.
Note: Projects will be awarded and must be operated in a manner consistent with the nondiscrimination requirements contained in Federal civil rights laws.

Applicable Regulations: a The Education Department General Administrative Regulations in 34 CFR

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20SEN1