61557
Federal Register
/Vol. 69, No. 201/Tuesday, October 19, 2004/Proposed Rules
Significant Proposed Regulations
We discuss substantive issues underthe sections of the proposed regulationsto which they pertain. Generally, we donot address proposed regulatoryprovisions that are technical orotherwise minor in effect.
Section 108.3Definitions
a. Covered Entity
Statute:
Section (b)(1) of the BoyScouts Act (section 9525(b)(1) of theESEA, as amended by NCLB) providesthat this law applies to any publicelementary school, public secondaryschool, LEA, or SEA that has adesignated open forum or limited publicforum and that receives funds madeavailable through the Department.
Proposed Regulations:
Proposed
§
108.3 would create the term
‘‘
coveredentity
’’
and define it to mean any publicelementary school, public secondaryschool, LEA, or SEA that has adesignated open forum or limited publicforum and that receives funds madeavailable through the Department.
Reason:
Proposed
§
108.3, forsimplification, provides one term to beused when referring to the entities towhich the Boy Scouts Act applies. b. Designated Open Forum
Statute:
Section (b)(1) of the BoyScouts Act (section 9525(b)(1) of theESEA, as amended by NCLB) uses theterms
‘‘
designated open forum
’’
and
‘‘
limited public forum.
’’
Section (d)(2) of the Boy Scouts Act defines
‘‘
limitedpublic forum
’’
but does not define
‘‘
designated open forum.
’’
Proposed Regulations:
Proposed
§
108.3 would define
‘‘
designated openforum.
’’
Reason:
The statute applies to publicschools, LEAs, and SEAs that have adesignated open forum or limited publicforum. The statute defines when anelementary or secondary school has alimited public forum, but does notdefine when an elementary or secondaryschool has a designated open forum. Forpurposes of clarification, the proposedregulations contain a definition of
‘‘
designated open forum.
’’
Under this definition, a school retainscontrol over its educational benefits andservices, and does not create adesignated open forum simply byinviting an outside group in to presentinformation to the students. Forinstance, if a school, as part of itscharacter education program, invites anoutside group to put on a schoolassembly on saying no to drugs, thatdoes not mean that the school hascreated a designated open forum andmust allow any group officiallyaffiliated with the Boy Scouts of America, or any other youth grouplisted in title 36 of the United StatesCode (as a patriotic society), to comeinto the school to do a presentationrelated to character education.c. Limited Public Forum
Statute:
Section (b)(1) of the BoyScouts Act (section 9525(b)(1) of theESEA, as amended by NCLB) uses theterm
‘‘
limited public forum.
’’
Section(d)(2) of the Boy Scouts Act defines
‘‘
limited public forum.
’’
Proposed Regulations:
Proposed
§
108.3 would incorporate the statutorydefinition of
‘‘
limited public forum.
’’
Reason:
By incorporating the statutorydefinition of this term, the regulationsaccurately reflect the requirements of the statute.d. Outside Youth or Community Group
Statute:
Section (d)(2) of the BoyScouts Act (section 9525(d)(2) of theESEA, as amended by NCLB) uses theterm
‘‘
outside youth or communitygroups
’’
in the definition of
‘‘
limitedpublic forum.
’’
Proposed Regulations:
Proposed
§
108.3 would define the term
‘‘
outsideyouth or community group,
’’
as the termappears in the definitions of
‘‘
designated open forum
’’
and
‘‘
limitedpublic forum,
’’
to mean a group that isnot affiliated with the school.
Reason:
For purposes of clarification,the proposed regulations would define
‘‘
outside youth or community group
’’
tomean a youth or community group thatis not affiliated with the school.e. To Sponsor Any Group OfficiallyAffiliated With the Boy Scouts of America; To Sponsor Any GroupOfficially Affiliated With Any OtherYouth Group Listed in Title 36 of theUnited States Code (as a PatrioticSociety)
Statute:
Under section (b)(2) of theBoy Scouts Act (section 9525(b)(2) of the ESEA, as amended by NCLB), noschool, agency, or a school served by anagency to which the Boy Scouts Actapplies is required to sponsor any groupofficially affiliated with the Boy Scoutsof America or any other youth grouplisted in title 36 of the United StatesCode (as a patriotic society).
Proposed Regulations:
Proposed
§
108.3 would define the term
‘‘
Tosponsor any group officially affiliatedwith the Boy Scouts of America
’’
asmeaning to possess a communityorganization charter issued by the BoyScouts of America. Proposed
§
108.3would define the term
‘‘
To sponsor anygroup officially affiliated with any otheryouth group listed in title 36 of theUnited States Code (as a patrioticsociety)
’’
to mean choosing to takewhatever actions are required by thattitle 36 group to become a sponsor of that group.
Reason:
The statute does not defineeither of these terms. Accordingly,proposed
§
108.3 clarifies what it meansto sponsor any group officially affiliatedwith the Boy Scouts of America or anyother youth group listed in title 36 of the United States Code (as a patrioticsociety). The first definition issupported by the legislative history of the Boy Scouts Act. During thelegislative debate of the Boy Scouts Act,Senator Smith of Oregon stated:
‘‘
TheBoy Scouts is a national institution witha national charter with this Government,and it is put out for any group thatwants to sponsor it. They are calledchartering institutions. Most of thechartering institutions are churches andsynagogues. Some are police stations.Some may even be a school district.
’’
147 Cong. Rec. 6259 (2001). Wespecifically request comment on theseproposed definitions.f. Youth Group
Statute:
Section (d)(1) of the BoyScouts Act (section 9525(d)(1) of theESEA, as amended by NCLB) defines theterm
‘‘
youth group.
’’
Proposed Regulations:
Proposed
§
108.3 incorporates the statutorydefinition of
‘‘
youth group.
’’
Reason:
By incorporating the statutorydefinition of this term, the regulationswould accurately reflect therequirements of the statute.
Section 108.4Effect of State or Local Law Statute:
Under section (b)(1) of theBoy Scouts Act (section 9525(b)(1) of the ESEA, as amended by NCLB), nocovered entity, notwithstanding anyother provision of law, shall deny equalaccess or a fair opportunity to meet to,or discriminate against, any groupofficially affiliated with the Boy Scoutsof America or any other youth grouplisted in title 36 of the United StatesCode (as a patriotic society).
Proposed Regulations:
Proposed
§
108.4 would explain that neither Statenor local law would obviate or alleviatea covered entity
’
s obligation to complywith the Boy Scouts Act and itsimplementing regulations.
Reason:
Proposed
§
108.4 reflects thestatutory provision that covered entitiesmust comply with the equal access andnon-discrimination requirementswithout regard to any State or local law.A public school, LEA, or SEA thatreceives funds made available throughthe Department must comply with the
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