61556 Federal Register / Vol. 69, No. 201 / Tuesday, October 19, 2004 / Proposed Rules 

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.

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: boyscoutscomments@ed.gov. 

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. 

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

§ 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 § 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 

§ 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 

§ 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 

§ 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 

§ 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 § 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 § 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 

§ 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 

§ 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 § 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 

61558 Federal Register / Vol. 69, No. 201 / Tuesday, October 19, 2004 / Proposed Rules 

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 

§ 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 § 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 

§ 108.6 would restate the statutory 

requirement. Proposed § 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 schoolrelated 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 § 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 

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

§ 108.7 would repeat the statutory 

requirement. 

Reasons: Proposed § 108.7 

incorporates the statutory requirement. 

The proposed regulations, in § 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 § 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 

§ 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 § 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 § 75.500, and States and 

subgrantees, under § 76.500, must 

comply. These regulations do not 

include the Boy Scouts Act among the 

listed Federal statutes and regulations 

on nondiscrimination. Proposed 

§§ 75.500(b) and 76.500(b) would 

provide that a covered entity as defined 

in § 108.3 also must comply with the 

nondiscrimination requirements of the 

Boy Scouts Act. 

Reason: The proposed amendments to 

§§ 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 § 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. 

61560 Federal Register / Vol. 69, No. 201 / Tuesday, October 19, 2004 / Proposed Rules 

The Secretary invites comments on 

how to make these proposed regulations 

easier to understand, including answers 

to questions such as the following: 

• Are the requirements in the 

proposed regulations clearly stated? 

• Do the proposed regulations contain 

technical terms or other wording that 

interferes with their clarity? 

• Does the format of the proposed 

regulations (grouping and order of 

sections, use of headings, paragraphing, 

etc.) aid or reduce their clarity? 

• Would the proposed regulations be 

easier to understand if we divided them 

into more (but shorter) sections? (A 

‘‘section’’ is preceded by the symbol 

‘‘§ ’’ and a numbered heading; for 

example, § 108.6 Equal Access.) 

• 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? 

• 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—

• Deciding whether the proposed 

collection is necessary for the proper 

performance of our functions, including 

whether the information will have 

practical use; 

• Evaluating the accuracy of our 

estimate of the burden of the proposed 

collection, including the validity of our 

methodology and assumptions; 

• Enhancing the quality, usefulness, 

and clarity of the information we 

collect; and 

• 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 § 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.

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

§ 75.500 Federal statutes and regulations 

on nondiscrimination.

* * * * *

(b) A grantee that is a covered entity 

as defined in § 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:

§ 76.500 Federal statutes and regulations 

on nondiscrimination.

* * * * *

(b) A State or subgrantee that is a 

covered entity as defined in § 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.

§ 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)

§ 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)

§ 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)

61562 Federal Register / Vol. 69, No. 201 / Tuesday, October 19, 2004 / Proposed Rules 

§ 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)

§ 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)

§ 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)

§ 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)

§ 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