[Federal Register Volume 69, Number 201 (Tuesday, October 19, 2004)]
[Proposed Rules]
[Pages 61556-61562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-23290]



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Part II





Department of Education





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34 CFR Parts 75, 76, and 108



Equal Access to Public School Facilities for the Boy Scouts of America 
and Other Designated Youth Groups; Proposed Rule

Federal Register / Vol. 69, No. 201 / Tuesday, October 19, 2004 / 
Proposed Rules

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DEPARTMENT OF EDUCATION

34 CFR Parts 75, 76, and 108

RIN 1870-AA12


Equal Access to Public School Facilities for the Boy Scouts of 
America and Other Designated Youth Groups

AGENCY: Office for Civil Rights, Department of Education.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Secretary proposes to add a new part to title 34 of the 
Code of Federal Regulations and to amend 34 CFR parts 75 and 76 to 
implement the provisions of the Boy Scouts of America Equal Access Act. 
This Act directs the Secretary of Education, through the Office for 
Civil Rights, to ensure compliance with this new law. The proposed 
regulations would address equal access to public school facilities by 
the Boy Scouts of America and other designated youth groups.

DATES: Your comments must be postmarked or sent through the Internet on 
or before December 3, 2004.

ADDRESSES: Address all comments about these proposed regulations to 
Kenneth L. Marcus, Delegated the Authority of Assistant Secretary for 
Civil Rights, U.S. Department of Education, 400 Maryland Avenue, SW., 
room 6095 Potomac Center Plaza, Washington, DC 20202-1100. If you 
prefer to send your comments through the Internet, you may address them 
to us at the U.S. Government Web site: http://www.regulations.gov.
    Or you may send your Internet comments to us at the following 
address: <a href="/cdn-cgi/l/email-protection#b0d2dfc9c3d3dfc5c4c3d3dfddddd5dec4c3f0d5d49ed7dfc6"><span class="__cf_email__" data-cfemail="62000d1b11010d171611010d0f0f070c16112207064c050d14">[email protected]</span></a>.
    For all comments submitted, you should specify the subject as ``Boy 
Scouts Proposed Regulations Comments.''
    If you want to comment on the information collection requirements, 
you must send your comments to the Office of Management and Budget 
(OMB) at the address listed in the Paperwork Reduction Act section of 
this preamble. You may also send a copy of these comments to the 
Department representative named in this section.

FOR FURTHER INFORMATION CONTACT: Sandra G. Battle, U.S. Department of 
Education, 400 Maryland Avenue, SW., room 6125 Potomac Center Plaza, 
Washington, DC 20202-1100. Telephone: (202) 245-6767.
    If you use a telecommunications device for the deaf (TDD), you may 
call 1-877-521-2172. For additional copies of this document, you may 
call the Customer Service Team for the Office for Civil Rights (OCR) at 
1-800-421-3481. This notice of proposed rulemaking will also be 
available at the Department's Web site on the Internet at: http://www.ed.gov/news/fedregister/proprule/index.html.
    Individuals with disabilities may obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Invitation To Comment

    We invite you to submit comments regarding these proposed 
regulations. To ensure that your comments have maximum effect in 
developing the final regulations, we urge you to identify clearly the 
specific section or sections of the proposed regulations that each of 
your comments addresses and to arrange your comments in the same order 
as the proposed regulations.
    We invite you to assist us in complying with the specific 
requirements of Executive Order 12866 and its overall requirement of 
reducing regulatory burden that might result from these proposed 
regulations.
    During and after the comment period, you may inspect all public 
comments about these proposed regulations in room 6128 Potomac Center 
Plaza, 550 12th Street, SW., Washington, DC, between the hours of 9:30 
a.m. and 4 p.m., Eastern time, Monday through Friday of each week 
except Federal holidays. If you are interested in reviewing the 
comments, we encourage you to contact the person listed under FOR 
FURTHER INFORMATION CONTACT in advance to schedule an appointment for 
inspecting the comments.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking 
Record

    On request, we will supply an appropriate aid, such as a reader or 
print magnifier, to an individual with a disability who needs 
assistance to review the comments or other documents in the public 
rulemaking record for these proposed regulations. If you want to 
schedule an appointment for this type of aid, please contact the person 
listed under FOR FURTHER INFORMATION CONTACT. If you use a TDD, you may 
call 1-877-521-2172.

Background

    These proposed regulations would implement the Boy Scouts of 
America Equal Access Act. On January 8, 2002, the President signed into 
law the No Child Left Behind Act of 2001 (NCLB), Public Law 107-110, 
amending the Elementary and Secondary Education Act of 1965 (ESEA). 
Included in the amendments to the ESEA is the Boy Scouts of America 
Equal Access Act (Boy Scouts Act). The Boy Scouts Act applies to any 
public elementary school, public secondary school, local educational 
agency (LEA), or State educational agency (SEA) that has a designated 
open forum or limited public forum and that receives funds made 
available through the Department of Education (Department). Under this 
law, those entities may not deny equal access or a fair opportunity to 
meet to, or discriminate against, any group officially affiliated with 
the Boy Scouts of America or any other youth group listed in title 36 
of the United States Code (as a patriotic society) that wishes to 
conduct a meeting within the covered entity's designated open forum or 
limited public forum.
    The Boy Scouts Act authorizes the Secretary to implement this law 
by issuing and securing compliance with rules or orders with respect to 
any covered public elementary school, public secondary school, LEA, or 
SEA that denies equal access or a fair opportunity to meet to, or 
discriminates against, any group officially affiliated with the Boy 
Scouts of America or any other youth group listed in title 36 of the 
United States Code (as a patriotic society) that wishes to conduct a 
meeting within the covered entity's designated open forum or limited 
public forum. The Boy Scouts Act also directs the Secretary, through 
OCR, to enforce this law in a manner consistent with the procedure used 
under section 602 of the Civil Rights Act of 1964 with respect to these 
covered entities. If the covered public school or agency does not 
comply with the Boy Scouts Act, it would be subject to the Department's 
enforcement actions.
    On November 15, 2002, we published an advance notice of proposed 
rulemaking (ANPRM) in the Federal Register (67 FR 69456) requesting 
comments from interested parties to assist us in developing proposed 
regulations. The comment period for the ANPRM closed on December 16, 
2002. In response to the Secretary's invitation in the ANPRM, 
approximately two dozen parties submitted comments on issues to be 
considered in developing proposed regulations. The comments expressed a 
variety of opinions on the Boy Scouts Act and what should be included 
in regulations implementing this law. We considered these comments in 
developing this notice of proposed rulemaking.

[[Page 61557]]

Significant Proposed Regulations

    We discuss substantive issues under the sections of the proposed 
regulations to which they pertain. Generally, we do not address 
proposed regulatory provisions that are technical or otherwise minor in 
effect.

Section 108.3 Definitions

a. Covered Entity
    Statute: Section (b)(1) of the Boy Scouts Act (section 9525(b)(1) 
of the ESEA, as amended by NCLB) provides that this law applies to any 
public elementary school, public secondary school, LEA, or SEA that has 
a designated open forum or limited public forum and that receives funds 
made available through the Department.
    Proposed Regulations: Proposed Sec.  108.3 would create the term 
``covered entity'' and define it to mean any public elementary school, 
public secondary school, LEA, or SEA that has a designated open forum 
or limited public forum and that receives funds made available through 
the Department.
    Reason: Proposed Sec.  108.3, for simplification, provides one term 
to be used when referring to the entities to which the Boy Scouts Act 
applies.
b. Designated Open Forum
    Statute: Section (b)(1) of the Boy Scouts Act (section 9525(b)(1) 
of the ESEA, as amended by NCLB) uses the terms ``designated open 
forum'' and ``limited public forum.'' Section (d)(2) of the Boy Scouts 
Act defines ``limited public forum'' but does not define ``designated 
open forum.''
    Proposed Regulations: Proposed Sec.  108.3 would define 
``designated open forum.''
    Reason: The statute applies to public schools, LEAs, and SEAs that 
have a designated open forum or limited public forum. The statute 
defines when an elementary or secondary school has a limited public 
forum, but does not define when an elementary or secondary school has a 
designated open forum. For purposes of clarification, the proposed 
regulations contain a definition of ``designated open forum.''
    Under this definition, a school retains control over its 
educational benefits and services, and does not create a designated 
open forum simply by inviting an outside group in to present 
information to the students. For instance, if a school, as part of its 
character education program, invites an outside group to put on a 
school assembly on saying no to drugs, that does not mean that the 
school has created a designated open forum and must allow any group 
officially affiliated with the Boy Scouts of America, or any other 
youth group listed in title 36 of the United States Code (as a 
patriotic society), to come into the school to do a presentation 
related to character education.
c. Limited Public Forum
    Statute: Section (b)(1) of the Boy Scouts Act (section 9525(b)(1) 
of the ESEA, as amended by NCLB) uses the term ``limited public 
forum.'' Section (d)(2) of the Boy Scouts Act defines ``limited public 
forum.''
    Proposed Regulations: Proposed Sec.  108.3 would incorporate the 
statutory definition of ``limited public forum.''
    Reason: By incorporating the statutory definition of this term, the 
regulations accurately reflect the requirements of the statute.
d. Outside Youth or Community Group
    Statute: Section (d)(2) of the Boy Scouts Act (section 9525(d)(2) 
of the ESEA, as amended by NCLB) uses the term ``outside youth or 
community groups'' in the definition of ``limited public forum.''
    Proposed Regulations: Proposed Sec.  108.3 would define the term 
``outside youth or community group,'' as the term appears in the 
definitions of ``designated open forum'' and ``limited public forum,'' 
to mean a group that is not affiliated with the school.
    Reason: For purposes of clarification, the proposed regulations 
would define ``outside youth or community group'' to mean a youth or 
community group that is not affiliated with the school.
e. To Sponsor Any Group Officially Affiliated With the Boy Scouts of 
America; To Sponsor Any Group Officially Affiliated With Any Other 
Youth Group Listed in Title 36 of the United States Code (as a 
Patriotic Society)
    Statute: Under section (b)(2) of the Boy Scouts Act (section 
9525(b)(2) of the ESEA, as amended by NCLB), no school, agency, or a 
school served by an agency to which the Boy Scouts Act applies is 
required to sponsor any group officially affiliated with the Boy Scouts 
of America or any other youth group listed in title 36 of the United 
States Code (as a patriotic society).
    Proposed Regulations: Proposed Sec.  108.3 would define the term 
``To sponsor any group officially affiliated with the Boy Scouts of 
America'' as meaning to possess a community organization charter issued 
by the Boy Scouts of America. Proposed Sec.  108.3 would define the 
term ``To sponsor any group officially affiliated with any other youth 
group listed in title 36 of the United States Code (as a patriotic 
society)'' to mean choosing to take whatever actions are required by 
that title 36 group to become a sponsor of that group.
    Reason: The statute does not define either of these terms. 
Accordingly, proposed Sec.  108.3 clarifies what it means to sponsor 
any group officially affiliated with the Boy Scouts of America or any 
other youth group listed in title 36 of the United States Code (as a 
patriotic society). The first definition is supported by the 
legislative history of the Boy Scouts Act. During the legislative 
debate of the Boy Scouts Act, Senator Smith of Oregon stated: ``The Boy 
Scouts is a national institution with a national charter with this 
Government, and it is put out for any group that wants to sponsor it. 
They are called chartering institutions. Most of the chartering 
institutions are churches and synagogues. Some are police stations. 
Some may even be a school district.'' 147 Cong. Rec. 6259 (2001). We 
specifically request comment on these proposed definitions.
f. Youth Group
    Statute: Section (d)(1) of the Boy Scouts Act (section 9525(d)(1) 
of the ESEA, as amended by NCLB) defines the term ``youth group.''
    Proposed Regulations: Proposed Sec.  108.3 incorporates the 
statutory definition of ``youth group.''
    Reason: By incorporating the statutory definition of this term, the 
regulations would accurately reflect the requirements of the statute.

Section 108.4 Effect of State or Local Law

    Statute: Under section (b)(1) of the Boy Scouts Act (section 
9525(b)(1) of the ESEA, as amended by NCLB), no covered entity, 
notwithstanding any other provision of law, shall deny equal access or 
a fair opportunity to meet to, or discriminate against, any group 
officially affiliated with the Boy Scouts of America or any other youth 
group listed in title 36 of the United States Code (as a patriotic 
society).
    Proposed Regulations: Proposed Sec.  108.4 would explain that 
neither State nor local law would obviate or alleviate a covered 
entity's obligation to comply with the Boy Scouts Act and its 
implementing regulations.
    Reason: Proposed Sec.  108.4 reflects the statutory provision that 
covered entities must comply with the equal access and non-
discrimination requirements without regard to any State or local law. A 
public school, LEA, or SEA that receives funds made available through 
the Department must comply with the

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Boy Scouts Act, even if State or local law conflicts with the Boy 
Scouts Act.

Section 108.5 Compliance Obligations

    Statute: Section (b)(2) of the Boy Scouts Act (section 9525(b)(2) 
of the ESEA, as amended by NCLB) provides that this law applies to any 
public elementary school, public secondary school, LEA, or SEA that has 
a designated open forum or limited public forum and that receives funds 
made available through the Department.
    Proposed Regulations: Proposed Sec.  108.5 would provide that the 
obligation of public elementary schools, public secondary schools, 
LEAs, and SEAs to comply with the Boy Scouts Act is not limited by the 
nature or extent of their authority to make decisions about the use of 
school facilities.
    Reason: The Secretary recognizes that public schools, LEAs, or SEAs 
may not always have the independent authority to make decisions 
concerning the use of school facilities, and that other entities may be 
responsible for making those decisions. The statute, however, holds 
public schools, LEAs, and SEAs responsible for compliance with the Boy 
Scouts Act and does not condition their compliance obligation on 
whether they have the authority to make decisions about use of their 
school facilities. Proposed Sec.  108.5 clarifies that the statute 
applies to covered public elementary schools, public secondary schools, 
LEAs, and SEAs regardless of their authority to make decisions about 
the use of school facilities.

Section 108.6 Equal Access

    Statute: Under section (b)(1) of the Boy Scouts Act (section 
9525(b)(1) of the ESEA, as amended by NCLB), no covered entity shall 
deny equal access or a fair opportunity to meet to, or discriminate 
against, any group officially affiliated with the Boy Scouts of America 
or any other youth group listed in title 36 of the United States Code 
(as a patriotic society) that wishes to conduct a meeting within that 
covered entity's designated open forum or limited public forum for 
reasons including the membership or leadership criteria or oath of 
allegiance to God and country of the Boy Scouts of America or of the 
youth group listed in title 36 of the United States Code (as a 
patriotic society).
    Proposed Regulations: Proposed Sec.  108.6 would restate the 
statutory requirement. Proposed Sec.  108.6(a) through (c) would 
clarify that the statutory requirement means that any group officially 
affiliated with the Boy Scouts of America or any youth group listed in 
title 36 of the United States Code (as a patriotic society) that wishes 
to conduct a meeting within that covered entity's designated open forum 
or limited public forum must be provided with--(a) Access to school 
premises and school facilities to conduct meetings; (b) the ability to 
communicate through the use of school-related means such as, but not 
limited to, bulletin board notices and literature distribution; and (c) 
access to students, and student information, for recruitment purposes. 
That access and ability to communicate must be provided on terms that 
are no less favorable than the most favorable terms provided to one or 
more outside youth or community groups. Proposed Sec.  108.6(d) would 
clarify that any group officially affiliated with the Boy Scouts of 
America or any youth group listed in title 36 of the United States Code 
(as a patriotic society) may be charged fees in connection with their 
use of school facilities provided the fees are based on terms that are 
no less favorable than the most favorable terms provided to one or more 
outside youth or community groups.
    Reasons: We have sought to clarify the nature of the access 
required by the statute. That access includes not only access to school 
facilities for meetings before, during, or after school, but also 
access to other school activities related to an intention by any group 
officially affiliated with the Boy Scouts of America or any other youth 
group listed in title 36 of the United States Code (as a patriotic 
society) to conduct a meeting within a covered entity's designated open 
forum or limited public forum. The types of access include, but are not 
necessarily limited to, means of communication and recruitment. 
However, in order to provide equal access under the Boy Scouts Act, any 
group officially affiliated with the Boy Scouts of America or any other 
youth group listed in title 36 of the United States Code (as a 
patriotic society) that wishes to conduct a meeting at the school must 
be provided such access and use of school-related means of 
communication on terms that are no less favorable than the most 
favorable terms provided to one or more outside youth or community 
groups. We specifically request comment on this proposed standard.
    We recognize the need to regulate in such a way as to ensure that 
public schools, LEAs, and SEAs continue to have flexibility to 
establish fees based on certain distinctions; for example, distinctions 
made between non-profit community groups and for-profit groups. 
However, in order to provide equal access under the Boy Scouts Act, any 
fees charged to any group officially affiliated with the Boy Scouts of 
America or any other youth group listed in title 36 of the United 
States Code (as a patriotic society) must be charged on terms that are 
no less favorable than the most favorable terms provided to one or more 
outside youth or community groups.
    The Boy Scouts Act does not require access, but rather equal 
access. Thus, if one or more outside youth or community groups are 
given access to a school activity, then any group officially affiliated 
with the Boy Scouts of America or any other youth group listed in title 
36 of the United States Code (as a patriotic society) must be given 
access to that school activity. However, if a school or agency decides 
to deny access to a particular school activity to all outside youth or 
community groups, that decision would not violate the Boy Scouts Act. 
For instance, if a school decides that no outside youth or community 
groups that wish to hold meetings at the school may hold recruitment 
assemblies during school hours so that school hours can be devoted to 
instruction, then the Boy Scouts Act does not force that school to make 
an exception for any group officially affiliated with the Boy Scouts of 
America or any other youth group listed in title 36 of the United 
States Code (as a patriotic society).
    Access for recruitment under the Boy Scouts Act is not the same as 
NCLB's access for armed forces recruitment, provided under section 9528 
of the ESEA, as amended by NCLB. We do not think the Boy Scouts Act 
authorizes the Department to incorporate these armed forces recruitment 
requirements into the Boy Scouts Act regulations. The armed forces 
recruitment requirements and the Boy Scouts Act are in two separate 
sections of NCLB, and nothing in NCLB indicates that one section 
applies to the other. Moreover, the armed forces recruitment 
requirements concern unique access by military recruiters or 
institutions of higher education to certain information about secondary 
school students. In contrast, the Boy Scouts Act concerns equal access 
by groups officially affiliated with the Boy Scouts of America and 
certain other patriotic youth organizations to public school 
facilities.
    Of course, outside youth or community groups, including any group 
officially affiliated with the Boy Scouts of America or any other youth 
group listed in title 36 of the United States Code (as a patriotic 
society), would not have access to education records (or personally 
identifiable information

[[Page 61559]]

contained therein), as defined by the Family Educational Rights and 
Privacy Act (FERPA), other than in accordance with the provisions of 
the FERPA. That law generally prohibits schools from disclosing 
personally identifiable information in a student's education record, 
unless the school obtains the consent of the student's parent or the 
eligible student (a student who is 18 years old or older or who attends 
a postsecondary institution).

Section 108.7 Voluntary Sponsorship

    Statute: Under section (b)(2) of the Boy Scouts Act (section 
9525(b)(2) of the ESEA, as amended by NCLB), no school, agency, or a 
school served by an agency to which the Boy Scouts Act applies is 
required to sponsor any group officially affiliated with the Boy Scouts 
of America or any other youth group listed in title 36 of the United 
States Code (as a patriotic society).
    Proposed Regulations: Proposed Sec.  108.7 would repeat the 
statutory requirement.
    Reasons: Proposed Sec.  108.7 incorporates the statutory 
requirement. The proposed regulations, in Sec.  108.3, would define the 
terms ``to sponsor any group officially affiliated with the Boy Scouts 
of America'' and ``to sponsor any group officially affiliated with any 
other youth group listed in title 36 of the United States Code (as a 
patriotic society).'' Reasons for these definitions are discussed 
previously under Sec.  108.3 Definitions.

Section 108.8 Compliance Procedures

    Statute: Section (c)(1) of the Boy Scouts Act (section 9525(c)(1) 
of the ESEA, as amended by NCLB) directs the Secretary, through OCR, to 
enforce this law in a manner consistent with the procedure used under 
section 602 of the Civil Rights Act of 1964.
    Proposed Regulations: Proposed Sec.  108.8 would adopt the 
procedural provisions applicable to title VI of the Civil Rights Act of 
1964 (Title VI).
    Reason: OCR uses the regulations found in 34 CFR parts 100 and 101 
in enforcing Title VI. Rather than repeating the relevant sections of 
these Title VI regulations in the proposed regulations for the Boy 
Scouts Act, proposed Sec.  108.8 simply adopts those relevant sections.

Sections 75.500 and 76.500 Federal Statutes and Regulations on 
Nondiscrimination

    Statute: Under section (b)(1) of the Boy Scouts Act (section 
9525(b)(1) of the ESEA, as amended by NCLB), no covered entity shall 
deny equal access or a fair opportunity to meet to, or discriminate 
against, any group officially affiliated with the Boy Scouts of America 
or any other youth group listed in title 36 of the United States Code 
(as a patriotic society) that wishes to conduct a meeting within that 
covered entity's designated open forum or limited public forum for 
reasons including the membership or leadership criteria or oath of 
allegiance to God and country of the Boy Scouts of America or of the 
youth group listed in title 36 of the United States Code (as a 
patriotic society).
    Proposed Regulations: Sections 75.500 and 76.500 list the Federal 
statutes and regulations on nondiscrimination with which grantees, 
under Sec.  75.500, and States and subgrantees, under Sec.  76.500, 
must comply. These regulations do not include the Boy Scouts Act among 
the listed Federal statutes and regulations on nondiscrimination. 
Proposed Sec. Sec.  75.500(b) and 76.500(b) would provide that a 
covered entity as defined in Sec.  108.3 also must comply with the 
nondiscrimination requirements of the Boy Scouts Act.
    Reason: The proposed amendments to Sec. Sec.  75.500 and 76.500 
would add the Boy Scouts Act and the regulations in part 108 to the 
list of Federal statutes and regulations on nondiscrimination with 
which grantees and States and subgrantees that are covered entities 
under Sec.  108.3 must comply.

Executive Order 12250

    Pursuant to Executive Order 12250, which provides for the Attorney 
General to review proposed regulations implementing any provision of 
Federal statutory law that provides, in whole or in part, that no 
person in the United States shall, on the ground of race, color, 
national origin, handicap, religion, or sex, be excluded from 
participation in, be denied the benefits of, or be subject to 
discrimination under any program or activity receiving Federal 
financial assistance, the Assistant Attorney General for Civil Rights 
has reviewed this notice of proposed rulemaking and approved it for 
publication.

Executive Order 12866

1. Potential Costs and Benefits

    Under Executive Order 12866, we have assessed the potential costs 
and benefits of this regulatory action.
    The potential costs associated with the proposed regulations are 
those resulting from statutory requirements and those we have 
determined to be necessary for administering this program effectively 
and efficiently. Elsewhere in this SUPPLEMENTARY INFORMATION section we 
identify and explain burdens specifically associated with information 
collection requirements. See the heading Paperwork Reduction Act of 
1995.
    In assessing the potential costs and benefits--both quantitative 
and qualitative--of this regulatory action, we have determined that the 
benefits would justify the costs.
    We have also determined that this regulatory action would not 
unduly interfere with State, local, and tribal governments in the 
exercise of their governmental functions.
Summary of Potential Costs and Benefits
    The proposed regulations would not impose any specified costs. If 
recipients have to change their practices in order to meet the equal 
access and nondiscrimination requirements of the statute, they may 
incur some costs. Any costs, including costs to comply with information 
collection requirements, likely would be minimal. The potential 
benefits of this proposed regulatory action are that stakeholders would 
have easily accessible, codified, published regulations that clarify 
both the substantive obligations of the law and how the Department 
would enforce the law. The Boy Scouts Act provides for new obligations 
and requirements regarding access to school facilities. By engaging in 
rulemaking, we would be able to obtain input from stakeholders 
(including public schools, LEAs, SEAs, the Boy Scouts of America or any 
other youth group listed in title 36 of the United States Code (as a 
patriotic society), and parents) and other interested parties that will 
help us to develop clear and accessible regulations that advance the 
purpose of the statute and sufficiently inform stakeholders of their 
rights and responsibilities under the law. By developing regulations 
for use in enforcing the Boy Scouts Act, we also would be complying 
with the directive in the Boy Scouts Act to enforce the law in a manner 
consistent with the procedures used to enforce Title VI. The proposed 
regulations would incorporate the existing procedural sections of the 
Title VI regulations and, like the Title VI regulations, would clarify 
the substantive obligations of covered entities.

2. Clarity of the Regulations

    Executive Order 12866 and the Presidential memorandum on ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.

[[Page 61560]]

    The Secretary invites comments on how to make these proposed 
regulations easier to understand, including answers to questions such 
as the following:
    <bullet> Are the requirements in the proposed regulations clearly 
stated?
    <bullet> Do the proposed regulations contain technical terms or 
other wording that interferes with their clarity?
    <bullet> Does the format of the proposed regulations (grouping and 
order of sections, use of headings, paragraphing, etc.) aid or reduce 
their clarity?
    <bullet> Would the proposed regulations be easier to understand if 
we divided them into more (but shorter) sections? (A ``section'' is 
preceded by the symbol ``Sec.  '' and a numbered heading; for example, 
Sec.  108.6 Equal Access.)
    <bullet> Could the description of the proposed regulations in the 
``Supplementary Information'' section of this preamble be more helpful 
in making the proposed regulations easier to understand? If so, how?
    <bullet> What else could we do to make the proposed regulations 
easier to understand?
    Send any comments that concern how the Department could make these 
proposed regulations easier to understand to the person listed in the 
ADDRESSES section of the preamble.

Regulatory Flexibility Act Certification

    The Secretary certifies that these proposed regulations would not 
have a significant economic impact on a substantial number of small 
entities. The proposed regulations address equal access to school 
facilities and activities for the Boy Scouts of America and other 
specified youth organizations and would not have a significant economic 
impact on any entities.

Paperwork Reduction Act of 1995

    Section 108.8 contains an information collection requirement. Under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the Department 
has submitted a copy of this section to OMB for its review.

Collection of Information: Assurances of Compliance

    The collection of information consists of assurances that 
applicants for Federal financial assistance will comply with the 
requirements of the Boy Scouts Act. These proposed regulations would 
affect the following types of entities applying to the Department for 
Federal financial assistance: SEAs, LEAs, public elementary schools, 
and public secondary schools.
    The Boy Scouts Act directs the Secretary, through OCR, to enforce 
this law in a manner consistent with the procedure used under Title VI. 
This procedure includes obtaining assurances of compliance with Title 
VI, under 34 CFR 100.4. Section 108.8 would adopt this Title VI 
regulatory provision.
    This assurance would be collected on applications for Federal 
financial assistance, including formula and discretionary grants, from 
the Department. Because this assurance would simply be added to 
existing assurances already contained on applications for Federal 
financial assistance from the Department, we estimate that the annual 
reporting and recordkeeping burden for this collection of information 
will be negligible.
    If you want to comment on the information collection requirements, 
please send your comments to the Office of Information and Regulatory 
Affairs, OMB, room 10235, New Executive Office Building, Washington, DC 
20503; Attention: Desk Officer for U.S. Department of Education. You 
may also send a copy of these comments to the Department representative 
named in the ADDRESSES section of this preamble.
    We consider your comments on this proposed collection of 
information in--
    <bullet> Deciding whether the proposed collection is necessary for 
the proper performance of our functions, including whether the 
information will have practical use;
    <bullet> Evaluating the accuracy of our estimate of the burden of 
the proposed collection, including the validity of our methodology and 
assumptions;
    <bullet> Enhancing the quality, usefulness, and clarity of the 
information we collect; and
    <bullet> Minimizing the burden on those who must respond. This 
includes exploring the use of appropriate automated, electronic, 
mechanical, or other technological collection techniques or other forms 
of information technology; e.g., permitting electronic submission of 
responses.
    OMB is required to make a decision concerning the collection of 
information contained in these proposed regulations between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, to ensure that OMB gives your comments full consideration, 
it is important that OMB receives the comments within 30 days of 
publication. This does not affect the deadline for your comments to us 
on the proposed regulations.

Intergovernmental Review

    This program is not subject to Executive Order 12372 and the 
regulations in 34 CFR part 79.

Federalism

    Executive Order 13132 requires us to ensure meaningful and timely 
input by State and local elected officials in the development of 
regulatory policies that have federalism implications. ``Federalism 
implications'' means substantial direct effects on the States, on the 
relationship between the National Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. The proposed regulations in Sec.  108.4 may have federalism 
implications, as defined in Executive Order 13132. We encourage State 
and local elected officials to review and provide comments on these 
proposed regulations.

Electronic Access to This Document

    You may view this document, as well as all other Department of 
Education documents published in the Federal Register, in text or Adobe 
Portable Document Format (PDF) on the Internet at the following site: 
http://www.ed.gov/news/fedregister.
    To use PDF you must have Adobe Acrobat Reader, which is available 
free at this site. If you have questions about using PDF, call the U.S. 
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in 
the Washington, DC, area at (202) 512-1530.


    Note: The official version of this document is the document 
published in the Federal Register. Free Internet access to the 
official edition of the Federal Register and the Code of Federal 
Regulations is available on GPO Access at: http://www.gpoaccess.gov/nara/index.html.

(Catalog of Federal Domestic Assistance Number does not apply.)

List of Subjects

34 CFR Part 75

    Accounting, Administrative practice and procedure, Education, Grant 
programs--Education, Private schools, Reporting and recordkeeping 
requirements.

34 CFR Part 76

    Administrative practice and procedure, Compliance, Eligibility, 
Grant administration, Reporting and recordkeeping requirements.

34 CFR Part 108

    Boy Scouts of America, Education, Equal access, Reporting and 
recordkeeping requirements.


[[Page 61561]]


    Dated: October 7, 2004.
Rod Paige,
Secretary of Education.

    For the reasons discussed in the preamble, the Secretary proposes 
to amend parts 75 and 76 of, and to add a new part 108 to, title 34 of 
the Code of Federal Regulations to read as follows:

PART 75--DIRECT GRANT PROGRAMS

    1. The authority citation for part 75 continues to read as follows:

    Authority: 20 U.S.C. 1221e-3 and 3474, unless otherwise noted.

    2. Section 75.500 is amended by designating the existing text as 
paragraph (a) and adding a new paragraph (b) to read as follows.


Sec.  75.500  Federal statutes and regulations on nondiscrimination.

* * * * *
    (b) A grantee that is a covered entity as defined in Sec.  108.3 of 
this title shall comply with the nondiscrimination requirements of the 
Boy Scouts of America Equal Access Act, 20 U.S.C. 7905, 34 CFR part 
108.
* * * * *

PART 76--STATE-ADMINISTERED PROGRAMS

    3. The authority citation for part 76 continues to read as follows:

    Authority: 20 U.S.C. 1221e-3, 3474, 6511(a), and 8065a, unless 
otherwise noted.

    4. Section 76.500 is amended by designating the existing text as 
paragraph (a) and adding a new paragraph (b) to read as follows:


Sec.  76.500  Federal statutes and regulations on nondiscrimination.

* * * * *
    (b) A State or subgrantee that is a covered entity as defined in 
Sec.  108.3 of this title shall comply with the nondiscrimination 
requirements of the Boy Scouts of America Equal Access Act, 20 U.S.C. 
7905, 34 CFR part 108.
* * * * *
    5. Add part 108 to read as follows:

PART 108--EQUAL ACCESS TO PUBLIC SCHOOL FACILITIES FOR THE BOY 
SCOUTS OF AMERICA AND OTHER DESIGNATED YOUTH GROUPS

Sec.
108.1 Purpose.
108.2 Applicability.
108.3 Definitions.
108.4 Effect of State or local law.
108.5 Compliance obligations.
108.6 Equal access.
108.7 Voluntary sponsorship.
108.8 Compliance procedures.

    Authority: 20 U.S.C. 7905, unless otherwise noted.


Sec.  108.1  Purpose.

    The purpose of this part is to implement the Boy Scouts of America 
Equal Access Act (Boy Scouts Act).

(Authority: 20 U.S.C. 7905)


Sec.  108.2  Applicability.

    This part applies to any public elementary school, public secondary 
school, local educational agency, or State educational agency that has 
a designated open forum or limited public forum and that receives funds 
made available through the Department.

(Authority: 20 U.S.C. 7905)


Sec.  108.3  Definitions.

    (a) The following definitions apply to this part:
    Boy Scouts Act means the Boy Scouts of America Equal Access Act, 
section 9525 of the Elementary and Secondary Education Act of 1965, as 
amended by section 901 of the No Child Left Behind Act of 2001, Public 
Law 107-110, 115 Stat. 1425, 1981-82 (20 U.S.C. 7905).
    Boy Scouts of America means the organization named ``Boy Scouts of 
America,'' which has a Federal charter and which is listed as an 
organization in title 36 of the United States Code (Patriotic and 
National Observances, Ceremonies, and Organizations) in Subtitle II 
(Patriotic and National Organizations), Part B (Organizations), Chapter 
309 (Boy Scouts of America).
    Covered entity means any public elementary school, public secondary 
school, local educational agency, or State educational agency that has 
a designated open forum or limited public forum and that receives funds 
made available through the Department.
    Designated open forum means the following for the purposes of these 
regulations: An elementary school or secondary school has a designated 
open forum whenever the school involved designates a time and place for 
one or more outside youth or community groups to meet on school 
premises or in school facilities, including during the hours in which 
attendance at the school is compulsory, for reasons other than to 
provide the school's educational benefits or services.
    Elementary school means an elementary school as defined by section 
9101(18) of the Elementary and Secondary Education Act of 1965, as 
amended by section 901 of the No Child Left Behind Act of 2001, Public 
Law 107-110, 115 Stat. 1425, 1958 (20 U.S.C. 7801).
    Limited public forum means the following for purposes of these 
regulations: An elementary school or secondary school has a limited 
public forum whenever the school involved grants an offering to, or 
opportunity for, one or more outside youth or community groups to meet 
on school premises or in school facilities before or after the hours 
during which attendance at the school is compulsory.
    Local educational agency means a local educational agency as 
defined by section 9101(26) of the Elementary and Secondary Education 
Act of 1965, as amended by section 901 of the No Child Left Behind Act 
of 2001, Public Law 107-110, 115 Stat. 1425, 1961 (20 U.S.C. 7801).
    Outside youth or community group, as that term appears in the 
regulatory definitions of designated open forum and limited public 
forum, means a youth or community group that is not affiliated with the 
school.
    Secondary school means a secondary school as defined by section 
9101(38) of the Elementary and Secondary Education Act of 1965, as 
amended by section 901 of the No Child Left Behind Act of 2001, Public 
Law 107-110, 115 Stat. 1425, 1965 (20 U.S.C. 7801).
    State educational agency means a State educational agency as 
defined by section 9101(41) of the Elementary and Secondary Education 
Act of 1965, as amended by section 901 of the No Child Left Behind Act 
of 2001, Public Law 107-110, 115 Stat. 1425, 1965 (20 U.S.C. 7801).
    Title 36 of the United States Code (as a patriotic society) means 
title 36 (Patriotic and National Observances, Ceremonies, and 
Organizations), Subtitle II (Patriotic and National Organizations).
    To sponsor any group officially affiliated with the Boy Scouts of 
America means to possess a community organization charter issued by the 
Boy Scouts of America.
    To sponsor any group officially affiliated with any other youth 
group listed in title 36 of the United States Code (as a patriotic 
society) means choosing to take whatever actions are required by that 
title 36 group to become a sponsor of that group.
    Youth group means any group or organization intended to serve young 
people under the age of 21.
    (b) The following terms defined in 34 CFR 100.13 apply to this 
part.

Department
Facility

(Authority: 20 U.S.C. 7905)

[[Page 61562]]

Sec.  108.4  Effect of State or local law.

    The obligation to comply with the Boy Scouts Act and this part is 
not obviated or alleviated by any State or local law or other 
requirement.

(Authority: 20 U.S.C. 7905)


Sec.  108.5  Compliance obligations.

    The obligation of public elementary schools, public secondary 
schools, local educational agencies, and State educational agencies to 
comply with the Boy Scouts Act is not limited by the nature or extent 
of their authority to make decisions about the use of school 
facilities.

(Authority: 20 U.S.C. 7905)

Sec.  108.6  Equal access.

    No covered entity shall deny equal access or a fair opportunity to 
meet to, or discriminate against, any group officially affiliated with 
the Boy Scouts of America or any other youth group listed in title 36 
of the United States Code (as a patriotic society) that wishes to 
conduct a meeting within that covered entity's designated open forum or 
limited public forum. No covered entity shall deny that access or 
opportunity or discriminate for reasons including the membership or 
leadership criteria or oath of allegiance to God and country of the Boy 
Scouts of America or of the youth group listed in title 36 of the 
United States Code (as a patriotic society). Activities covered 
include, but are not necessarily limited to, the following:
    (a) Meetings. Any group officially affiliated with the Boy Scouts 
of America or any other youth group listed in title 36 of the United 
States Code (as a patriotic society) must be given access to school 
premises and school facilities to conduct meetings on terms that are no 
less favorable than the most favorable terms provided to one or more 
outside youth or community groups.
    (b) Means of communication. Any group officially affiliated with 
the Boy Scouts of America or any other youth group listed in title 36 
of the United States Code (as a patriotic society) must be allowed to 
use school-related means of communication on terms that are no less 
favorable than the most favorable terms provided to one or more outside 
youth or community groups. These means of communication include, but 
are not limited to, bulletin board notices and literature distribution.
    (c) Recruitment. Any group officially affiliated with the Boy 
Scouts of America or any other youth group listed in title 36 of the 
United States Code (as a patriotic society) must be allowed access to 
students, and student information, for recruitment purposes on terms 
that are no less favorable than the most favorable terms provided to 
one or more outside youth or community groups.
    (d) Fees. Any group officially affiliated with the Boy Scouts of 
America or any other youth group listed in title 36 of the United 
States Code (as a patriotic society) may be charged fees in connection 
with conducting meetings on school premises or in school facilities, 
using school-related means of communication, or conducting recruitment 
activities, but only if the fees are charged on terms that are no less 
favorable than the most favorable terms provided to one or more outside 
youth or community groups.

(Authority: 20 U.S.C. 7905)


Sec.  108.7  Voluntary sponsorship.

    Nothing in this part shall be construed to require any school, 
agency, or a school served by an agency to sponsor any group officially 
affiliated with the Boy Scouts of America or any other youth group 
listed in title 36 of the United States Code (as a patriotic society).

(Authority: 20 U.S.C. 7905)


Sec.  108.8  Compliance procedures.

    The procedural provisions applicable to title VI of the Civil 
Rights Act of 1964 apply to this part. Those procedures are found in 34 
CFR 100.4, 100.6 through 100.11, 100.13(a) through (f), and (h) through 
(k), and 34 CFR part 101.

(Authority: 20 U.S.C. 7905)

[FR Doc. 04-23290 Filed 10-18-04; 8:45 am]
BILLING CODE 4000-01-P


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