[Federal Register: February 17, 2006 (Volume 71, Number 33)]
[Rules and Regulations]
[Page 8483-8485]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17fe06-17]
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COMMISSION ON CIVIL RIGHTS
45 CFR Part 703
Membership Requirement of State Advisory Committees
AGENCY: Commission on Civil Rights.
ACTION: Final rule.
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SUMMARY: This final rule revises the regulations of the United States
Commission on Civil Rights to amend the State Advisory Committee
membership criteria to ensure both diversity and nondiscrimination in
the State Advisory Committee member appointment process.
EFFECTIVE DATE: This final rule is effective March 20, 2006.
FOR FURTHER INFORMATION CONTACT: Contact Christopher Byrnes, Attorney-
Advisor, U.S. Commission on Civil Rights, 624 Ninth Street NW.,
Washington, DC 20425. Telephone: (202) 376-7700.
SUPPLEMENTARY INFORMATION: On November 4, 2005, (70 FR 67129) the U.S.
Commission on Civil Rights published for public comment its proposed
rule change for selecting State Advisory Committee members. Comments
were received from thirteen sources, including past and present State
Advisory Committee members, a non-profit public policy organization, a
lawyers' association, an agency of the Federal Government, and a
private citizen.
One notable comment suggested enumerating some specific membership
criteria in committee charters, committee bylaws, and the Commission's
Federal Advisory Committee Act guidance documents rather than in the
regulation. This comment pointed out that, in the unique venue of
federal advisory committees, placing criteria in regulations prevents
the rapid adaptation necessary to address new and different problems
that are certain to arise. According to this comment, the individual
committee charters, the committee bylaws, and the agency Federal
Advisory Committee Act guidance document could be used more effectively
and customized quickly to suit the agency's needs in addressing such
problems. Thus, this commenter recommended placing in non-regulatory
guidance the provisions contained in sections (c), (d), and (e). This
comment suggested that including these as regulatory requirements would
be too restrictive, as the Commission's needs for these particular
experiences, professions, interests, and affiliations may change over
time.
[[Page 8484]]
Another comment expressed full support for the regulation as
proposed by the Commission, arguing that the change would improve the
quality of State Advisory Committee membership while also bringing
Commission regulations into conformance with the Constitution.
According to this comment, the Commission's use of racial and ethnic
quotas and preferences in selecting State Advisory Committee members
could prevent the best qualified individuals from serving on the
committees. Furthermore, this comment argued that the previous
regulation and internal agency guidance on racial selection criteria
involved the use of suspect classifications by a government agency and
was therefore presumptively unlawful as a constitutional matter.
One commenter, supported by six others, recommended that the State
Advisory Committee membership rules proposed by the Commission be
rejected in their entirety. These commenters believed that the
membership rules should mandate the inclusion of the persons most
directly affected by the laws and policies in question, instead of
relying on only professionals, including, but not limited to,
educators, lawyers, business and labor leaders, social scientists,
researchers, and news gatherers. They also believed that those most
directly affected should be given preference for selection. With
respect to diversity, they expressed their concern that race and
ethnicity remain as specific and required criteria for selection of
State Advisory Committee members, rather than relying solely on the
non-discrimination clause of section (b). Finally, they recommended
that the expression in section (d) of the proposed regulation, ``an
interest in civil rights issues,'' be replaced with ``a demonstrated
role in traditional advocacy on behalf of the civil rights of the
protected classes.''
Another commenter recommended rejecting the proposed changes to
State Advisory Committee membership criteria and retaining the present
rules unaltered. Comments in the letter made clear that the membership
rules should ensure that minority and traditionally underrepresented
groups have the opportunity to be represented. Comments from the one
private individual who responded recommend amending section (e) to
require balance in political party representation, not merely
representation.
One commenter recommended that State Advisory Committee members be
selected for a maximum of five two-year terms, allowing the State
Advisory Committee member to resign at the completion of any two-year
term. The recommended change would allow grandfathering of current
State Advisory Committee members with greater than 10 years experience.
That same commenter also recommended amending the rule to allow State
Advisory Committee members to be removed by the Commission upon
consultation with the Regional Director and recommended amending
section (c) to eliminate the emphasis on professionals and skill
development in favor of an emphasis on participation in civil rights
issues/activities.
Several individuals commented on the emphasis on professionals in
section (c) of the proposed rule. One commenter recommended eliminating
the apparent proposed emphasis on professionals, with a diversity of
skills and experiences, including, but not limited to, social science
research, legal research and analysis, and statistical analysis in
favor of wording that more accurately reflected the diversity of the
affected populations. Another commenter also criticized the apparent
emphasis on professionals with a diversity of skills and experiences,
but instead recommended an amendment emphasizing participation in civil
rights issues and activities. That same commenter recommended deleting
section (e) in its entirety. Another commenter recommended amending
section (c) to eliminate the emphasis on an allegedly elite group of
academics and professionals in favor of an emphasis on grass roots
activity and participation in civil rights issues/activities.
After appropriate, careful consideration of all comments received,
the Commission provides the following responses:
The Commission agrees with the comments on relocating the portions
of the proposed rule requiring consideration of experiences, including,
but not limited to, social science research, legal research and
analysis, and statistical analysis; professional expertise and
attainment; demonstrated interest in civil rights issues of color,
race, religion, sex, age, disability, and national origin and in voting
rights; and political affiliation in the selection of State Advisory
Committee members. The Commission agrees that the relevant criteria
would more appropriately be presented in an internal Administrative
Instruction (AI) on procedures for recommending advisory committee
appointments. Accordingly, the Commission is removing paragraphs (c),
(d), and (e) of section 703.5 from the Final Rule, and they have been
included in a Commission Administrative Instruction.
The Commission appreciates the comments of support received and
recognizes the symbolic importance of ensuring that the eyes and ears
of the Commission are not themselves products of a discriminatory
process. The Commission likewise questions the apparent use of racial
and ethnic quotas and caps for the percentage membership of represented
groups in the past. Several comments had emphasized that all minorities
must have the opportunity to participate in the State Advisory
Committee process. The Commission embraces that sentiment
wholeheartedly. Though guidance on State Advisory Committee membership
criteria was incorporated into non-regulatory guidance, the final
regulation retains the non-discrimination provision.
One comment, addressing term limits, was based on a policy adopted
at a Commission meeting that was not embodied in the proposed
regulation. Nevertheless, since term limits have been approved by the
Commission and incorporated into the Administrative Instruction, the
Commission will address the comment. First, the Commission agrees with
the proposal to limit State Advisory Committee members to a maximum of
five two-year terms except under limited circumstances. That has been
incorporated into the Administrative Instructions. As for the
recommendation on removal of State Advisory Committee members, the
Commission has decided to address removal by separate guidance.
Many of the comments addressed portions of the proposed regulation
that have been removed from the final rule and placed in the
Commission's Administrative Instructions. Even though these portions
are no longer incorporated in the final rule, the Commission will
address those comments. First, it is important to recognize that the
Commission is modifying this regulation to expand the diversity of
ideas received from State Advisory Committee membership, while setting
the standard for non-discrimination and overall fairness. Generally
speaking, the final rule seeks to open up State Advisory Committee
membership to a wide array of viewpoints so that relevant civil rights
issues are fully explored in a non-discriminatory manner.
With respect to the comments on retaining specific racial and
ethnic criteria, the Commission concludes that adoption and strict
compliance with a non-discrimination policy is the proper
[[Page 8485]]
approach to selecting State Advisory Committee members. Additionally,
the Commission decides that the use of racial preferences and caps in
the selection of State Advisory Committee members would deprive the
Committees of members with much-needed skill sets in a time of
diminishing financial support. Denying membership in this manner could
also diminish the quality of State Advisory Committee research and
reports.
One comment addressed balance in political representation. The
guidance as provided in the new Administrative Instruction will provide
for representation by both major political parties, while also allowing
independent and third party members. The Commission has chosen to rely
on its requirement for a broadly diverse membership, instead of seeking
a required balance that could be perceived as a quota or cap.
Others commenting on the proposed regulation chose to focus on the
skills, experiences and professional backgrounds sought in potential
State Advisory Committee members. The identified professions represent
no change from previous guidance. Since at least 1991, educators,
lawyers, business and labor leaders, corporate officers, social
scientists, researchers and news gatherers have been identified as
professions that should be represented in State Advisory Committee
membership. The Commission has also chosen to introduce the
consideration of technical skills and abilities, including, but not
limited to, background in social science research, legal research and
analysis, and statistical analysis. Consideration of these skills and
abilities in selecting State Advisory Committee members will enhance
the ability of these Committees in continuing their work in the face of
diminished fiscal resources. The inclusion of these skill sets will
also encourage the selection of members with the knowledge and
experience necessary to produce effective and influential reports. The
established criteria are not exclusionary; they are broadly inclusive
and would not bar individuals from a variety of backgrounds, including
persons with a background in advocacy.
List of Subjects in 45 CFR Part 703
Advisory Committees, organization and functions (Government
agencies).
0
Accordingly, 45 CFR part 703 is amended as follows:
PART 703--OPERATIONS AND FUNCTIONS OF STATE ADVISORY COMMITTEES
0
1. The authority citation for part 703 continues to read as follows:
Authority: 42 U.S.C. 1975a(d).
0
2. Revise Sec. 703.5 to read as follows:
Sec. 703.5 Membership.
(a) Subject to exceptions made from time to time by the Commission
to fit special circumstances, each Advisory Committee shall consist of
at least 11 members appointed by the Commission. Members of the
Advisory Committees shall serve for a fixed term to be set by the
Commission upon the appointment of a member subject to the duration of
Advisory Committees as prescribed by the charter, provided that members
of the Advisory Committee may, at any time, be removed by the
Commission.
(b) No person is to be denied an opportunity to serve on a State
Advisory Committee because of race, age, sex, religion, national
origin, or disability. The Commission shall encourage membership on the
State Advisory Committee to be broadly diverse.
Kenneth L. Marcus,
Staff Director/Acting General Counsel.
[FR Doc. 06-1489 Filed 2-16-06; 8:45 am]
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