Rule2022-25147
Bylaws
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Published
November 18, 2022
Effective
November 18, 2022
Issuing agencies
Architectural and Transportation Barriers Compliance Board
Abstract
The Architectural and Transportation Barriers Compliance Board (hereafter, "Access Board," or "Board") has amended its bylaws. These amendments update agency procedures and enhance efficiency of operations.
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<title>Federal Register, Volume 87 Issue 222 (Friday, November 18, 2022)</title>
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[Federal Register Volume 87, Number 222 (Friday, November 18, 2022)]
[Rules and Regulations]
[Pages 69168-69171]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-25147]
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ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD
36 CFR 1151
[Docket No. ATBCB-2022-0005]
RIN 3014-AA49
Bylaws
AGENCY: Architectural and Transportation Barriers Compliance Board.
ACTION: Direct final rule.
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SUMMARY: The Architectural and Transportation Barriers Compliance Board
(hereafter, ``Access Board,'' or ``Board'') has amended its bylaws.
These amendments update agency procedures and enhance efficiency of
operations.
DATES: This final rule is effective November 18, 2022.
FOR FURTHER INFORMATION CONTACT: Christopher Kuczynski, General
Counsel, U.S. Access Board, (202) 272-0042, <a href="/cdn-cgi/l/email-protection#59322c3a2320372a323019383a3a3c2a2a74653879312b3c3f64" http: board.gov">board.gov</a>">kuczynski@access-<a href="http://board.gov">board.gov</a></a>.
SUPPLEMENTARY INFORMATION:
I. Background
At its November 9, 2022 meeting, the Access Board approved a number
of changes to its bylaws, published at 36 CFR 1151. Specifically:
<bullet> A new section (to be codified at 36 CFR 1151.3) sets out
requirements for Board membership, consistent with section 502 of the
Rehabilitation Act (29 U.S.C. 792), and prescribes rules for the
designation in writing of federal members and federal liaisons to the
Board. Federal members are heads of agencies listed in paragraph (b) of
Sec. 1151.3, or their designees, who must be at Level IV of the
Executive Schedule or higher. Federal members may include individuals
serving in positions on a temporary or acting basis, in accordance with
federal law and with agency rules, policies, and practices (paragraph
(c)(2)). Federal members and federal liaisons to the Board must be
designated in writing (paragraphs (c)(1) and (3)), (which may include
designation by electronic mail from a verifiable account), by someone
who has authority to make the designation (paragraph (c)(4)). Written
designations for members may identify the particular position within
the agency, an individual, or both. Previously, the Board bylaws had no
requirements concerning designation in writing of federal members or
liaisons.
<bullet> The language in what was, prior to amendment of the
bylaws, Sec. 1151.3(a) (concerning officers), which says that the
Board is the governing body of the agency, is now the first sentence in
Sec. 1151.2. Additionally, former paragraph (b) (Chair and Vice Chair)
and former paragraph (c) (Elections), have been combined and
redesignated as paragraphs (a)(1) and (2), former paragraph (d)
(Executive Director) is now paragraph (b), and former paragraph (e)
(General Counsel) is now paragraph (c).
<bullet> Section 1151.5 (previously Sec. 1151.4), entitled
``Delegations,'' has been revised slightly. The title of paragraph (a)
is now ``Delegations to the Executive Committee,'' since that is more
consistent with the overall title of the section and better describes
the contents of the paragraph, which describe delegations to, not by,
the Executive Committee. A cross-reference to Sec. 1151.7(a), which
establishes the Executive Committee is also provided here, since this
is the first reference to the Executive Committee in the bylaws.
<bullet> Section 1151.6 (previously Sec. 1151.5) makes several
changes with respect to Board meetings.
[cir] Paragraph (a) reduces the number of meetings from six
annually to four. One of the meetings may be a public event outside of
the Washington, DC area. Such a public event is not, as it previously
had been, required each year, but may instead be a regular meeting of
the Board.
[cir] Paragraph (b) says that meetings ordinarily will occur in
January, April, July, and October, but does not specify a particular
day or week during each month that the meeting must occur. Previously,
the bylaws said that regular meetings of the Board would occur on the
Wednesday following the second Tuesday of the month. The Chair may
reschedule a meeting to the month before or after the month specified
in the bylaws.
[cir] Paragraph (c) which is new, specifies that two meetings will
be in-person, with an option for participation remotely, and two
meetings may be entirely remote. This paragraph also states that the
Board will comply with all applicable laws in the manner in which it
conducts meetings, including the obligation to provide reasonable
accommodations for Board members, employees, members of the public, and
other participants (who might include, for example, individuals making
presentations to the Board or a committee). Because of the addition of
this paragraph, the lettering of subsequent paragraphs has been
adjusted.
[cir] Paragraph (d) alters the requirement, in former paragraph
(c), that the Chair establish the agenda for Board meetings to say that
the Chair may consult with the Executive Director as necessary and
appropriate. This merely clarifies existing practice.
[cir] Paragraph (e) provides for notice to the Board and to the
public of the dates for each year's Board meetings at least 30 days
prior to the January meeting. Notice may be provided on the Access
Board's website and/or through any other means by which the public is
likely to access it. Notice to members of the public will include
language indicating that reasonable accommodation will be provided to
enable participation in the meeting by individuals with disabilities,
absent undue burden. Although the Board has historically provided
reasonable accommodations for Board members, staff, and members of the
public, inclusion of this language in the notice promotes the broadest
level of participation possible by informing individuals with
disabilities who may not be aware of the right to reasonable
accommodation, and is consistent with the Board's mission of promoting
accessibility and inclusion for people with disabilities.
[[Page 69169]]
[cir] Paragraph (f) says that the Chair will give notice of a
meeting's cancelation at least 10 days prior to the meeting where
practical, and if the meeting is a public meeting, will give notice to
the public of the cancelation at the same time.
[cir] Paragraph (g) requires reasonable advance notice of a special
meeting, as well as the time place and purpose of the meeting. This is
consistent with the current bylaws. However, anticipating the
possibility that a special meeting could be a public meeting, the
amendment provides for notice to the public of the meeting, including
language indicating that the Board will provide reasonable
accommodation to enable participation, absent undue burden.
[cir] Paragraph (k)(5) provides five business days for a notational
vote. The Chair has discretion to extend the period of time if, at the
end of the voting period, there are an insufficient number of votes for
the Board to take action. An amendment specifying that notational
voting may occur through electronic mail reflects current practice. The
bylaws previously provided for notational voting for actions taken
between meetings of the Board, but did not describe the manner or form
in which it would occur.
[cir] Paragraph (l), which says that Board members shall be
considered present at any meeting in which they participate by
teleconference or other equipment that allows all participants to
communicate with each other is unchanged from former paragraph (k). Its
labeling simply changed when a new paragraph (c) was inserted.
Section 1151.7 (previously 1151.6) makes some changes to
requirements related to committees.
[cir] Paragraph (a)(1) has been revised to make certain duties of
the Executive Committee discretionary rather than mandatory. For
example, the Executive Committee now may, but is not required to,
review and recommend changes to the bylaws prior to submission of
proposed amendments to the Board.
[cir] Paragraph (b)(2) has been revised to require the Board to
vote only for the Chair of a subject matter committee. Previously,
paragraph (b)(2) said that the Board elects both the Chair and Vice
Chair of a subject matter committee; however, this contradicted the
language in paragraph (b)(3) immediately following, which said that the
Chair of the Board appoints members of standing committees other than
the Chair, who is elected by the Board. The revised bylaws resolve the
contradiction in favor of the Board voting on the Chair only, since
this would simplify the voting process and have no impact on the
operation of committees.
[cir] Paragraph (b)(3) reduces the number of members on a subject
matter committee from seven to nine to five to seven). Currently, the
Board has four subject matter committees and three special committees,
as well as an Executive Committee. The amendment to the bylaws reducing
the number of committee members will actually facilitate committee work
while limiting the number of committees to which specific Board members
need to be assigned.
II. Regulatory Process Matters
Administrative Procedure Act
This final rule implements amendments to the Access Board's bylaws
and solely addresses internal matters related to agency management and
practices. As such, this rule is exempt from the notice-and-comment
process pursuant to the Administrative Procedures Act. See 5 U.S.C.
553(a)(2), 553(b)(3)(A).
Executive Order 12866
This final rule establishes internal rules of agency procedure
only. OMB has determined that the rule is not a significant regulatory
action within the meaning of Executive Order 12866.
Congressional Review Act
This final rule is not a major rule within the meaning of the
Congressional Review Act. See 5 U.S.C. 801 et seq.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) requires Federal agencies to
analyze regulatory options that may assist in minimizing any
significant impact of a rule on small businesses and small governmental
jurisdictions. See 5 U.S.C. 604, 605(b). Because this final rule
relates solely to agency internal procedures and, moreover, is not
subject to notice-and-comment rulemaking, the RFA is inapplicable.
Federalism (Executive Order 13132)
The Access Board has analyzed this final rule in accordance with
the principles and criteria set forth in Executive Order 13132. The
Board has determined that this action will not have a substantial
direct effect on the States, the relationship between the Federal
Government and the States, or on the distribution of power and
responsibilities among the various levels of government, and,
therefore, does not have Federalism implications.
Paperwork Reduction Act
This final rule does not specify any new collections of information
or recordkeeping requirements that require OMB approval under the
Paperwork Reduction Act. See 44 U.S.C. 3501 et seq.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (codified at 2 U.S.C. 1531
et seq.) (``UMRA'') generally requires that Federal agencies assess the
effects of their discretionary regulatory actions that may result in
the expenditure of $100 million (adjusted for inflation) or more in any
one year by the private sector, or by State, local, and tribal
governments in the aggregate. Because this final rule is not subject to
notice-and-comment rulemaking, UMRA's analytical requirements do not
apply. See 2 U.S.C. 1532(a).
For the reasons set forth in the preamble, the Access Board amends
36 CFR part 1151 as follows:
PART 1151--BYLAWS
0
1. The authority citation for part 1151 continues to read as follows:
Authority: 29 U.S.C. 792
0
2. Amend Sec. 1151.2 by adding a new first sentence:
Sec. 1151.2 Authority
The Board is the governing body of the agency. * * *
Sec. Sec. 1151.3 through 1151.7 [Redesignated]
0
3. Redesignate Sec. Sec. 1151.3 through 1151.7 as Sec. Sec. 1151.4
through 1151.8.
0
4. Add a new Sec. 1151.3 to read as follows:
Sec. 1151.3 Membership
(a) Public Members. (1) The Board shall have thirteen members
appointed by the President from among members of the general public, at
least a majority of whom shall have disabilities.
(2) Members shall be appointed for a term of four years, may be
reappointed to one successive term, and thereafter may not be
reappointed unless they have not served on the Access board for at
least two years prior to their reappointment. Each year, the terms of
at least three members of the Board shall expire. A public member may
continue to serve following expiration of the member's term if a
successor has not been appointed.
(b) Federal Members. The remaining members of the Board shall be
the heads of the following agencies or their designees whose positions
are Executive Level IV or higher:
[[Page 69170]]
(1) The Department of health and Human Services;
(2) The Department of Transportation;
(3) The Department of Housing and Urban Development;
(4) The Department of Labor;
(5) The Department of the Interior;
(6) The Department of Defense;
(7) The Department of Justice;
(8) The General Services Administration;
(9) The Department of Veterans Affairs;
(10) The United States Postal Service;
(11) The Department of Education; and
(12) The Department of Commerce.
(c) Designation of Federal Board Members and Liaisons. (1)
Designation of a Federal Board member other than an agency head shall
be made in writing by the agency head or by anyone authorized to
provide such designation on behalf of the agency head. The designation
may either be of a particular position, an individual, or both. If only
a specific person is designated and not the position, a new designation
will be required where appointment of another person to fill the
position is subsequently made. The designation shall remain in effect
for as long as provided for under applicable agency rules, regulations,
or policies.
(2) An individual serving in an acting capacity, or who is
otherwise temporarily serving, in a position at Executive Level IV or
higher may be designated to serve on the Board, subject to any time
limitations under applicable law, or under agency rules, regulations,
or policies.
(3) Any newly-appointed Federal Board member shall designate in
writing a liaison to the Board. A newly appointed Federal Board member
may allow an individual previously serving as a liaison to the Board to
continue to do so, but must provide a new designation in writing.
(4) Written designation of a Federal Board member or liaison may be
in any form (including from a verifiable email address) indicating the
identity of the person making the designation and that the person is
authorized to do so.
0
5. Revise newly redesignated Sec. 1151.4 to read as follows:
Sec. 1151.4 Officers
(a) Chair; Vice Chair. (1) The head of the agency is the Chair of
the Board and, in his or her absence or disqualification, the Vice-
Chair of the Board. As head of the agency, the Chair represents the
Board whenever an applicable Federal statute or regulation imposes a
duty or grants a right or authority to the head of the agency and has
the authority to act in all matters relating to the operation of the
Board. The Chair may delegate any such duties and responsibilities by
written delegation of authority. The Chair supervises the Executive
Director and evaluates his or her performance and approves performance
evaluations of employees who report directly to the Executive Director.
The authority to supervise, evaluate, and approve performance
evaluations of the Executive Director and those employees who report
directly to the Executive Director may only be delegated to the Vice-
Chair of the Board.
(2) The Chair and the Vice-Chair of the Board shall be elected by a
majority of the membership of the Board (as fixed by statute) and serve
for terms of one year. Elections shall be held as soon as possible upon
completion of the one year term of the Chair and Vice-Chair, ordinarily
at the April meeting of the Board. If no new Chair or Vice-Chair has
been elected at the end of the one-year term, the incumbents shall
continue to serve in that capacity until a successor Chair or Vice-
Chair has been elected. When the Chair is a public member, the Vice-
Chair shall be a Federal member; and when the Chair is a Federal
member, the Vice-Chair shall be a public member. Upon the expiration of
the term as Chair of a Federal member, the subsequent Chair shall be a
public member; and vice versa.
(b) Executive Director. The Executive Director is nominated by the
Chair and confirmed by the Board. The Executive Director provides
administrative leadership and supervision and management of staff
activities in carrying out the policies and decisions of the Board
under the direction and supervision of the Chair. The Executive
Director has the authority to execute contracts, agreements, and other
documents necessary for the operation of the Board; hire, fire and
promote staff (including temporary or intermittent experts and
consultants); procure space, equipment, and supplies; and obtain
interagency and commercial support services. The Executive Director
directs compliance and enforcement activities in accordance with the
procedures set forth in 36 CFR part 1150, including issuing citations
and determinations not to proceed, conducting negotiations for
compliance, entering into agreements for voluntary compliance, and
performing all other actions authorized by law pertaining to compliance
and enforcement not otherwise reserved to the Board.
(c) General Counsel. The General Counsel is nominated by the Chair
and confirmed by the Board. The General Counsel is responsible to the
Board under the supervision of the Executive Director.
0
6. In newly redesignated Sec. 1151.5, revise the section heading and
the first sentence of paragraph (a) as follows:
Sec. 1151.5 Delegations
(a) Delegations to the Executive Committee. The Board may delegate
to the Executive Committee (provided for in Sec. 1151.7(a)) authority
to implement its decisions by a majority vote of the members present at
a meeting and any proxies. * * *
* * * * *
0
7. Revise newly redesignated Sec. 1151.6 to read as follows:
Sec. 1151.6 Board meetings.
(a) Number. The Chair shall schedule four meetings of the Board
each year starting January 2023, one of which may be a Board sponsored
public event outside the Washington, DC area.
(b) Timing. Regular meetings of the Board shall ordinarily be held
in January, April, July, and October of each calendar year. The Chair
may reschedule a regular meeting of the Board to another date during
the month preceding or following the month in which the regularly
scheduled meeting was to occur.
(c) Manner of conducting meetings. Two regular Board meetings will
be in person, but allow for participation by the Board, liaisons, and
members of the public remotely, and two meetings may be entirely
remote. The Board shall comply with all legal requirements concerning
the manner of conducting meetings, including the requirement to provide
reasonable accommodations for Board members, employees, members of the
public, and other participants.
(d) Agenda. The Chair establishes the agenda for the meetings, in
consultation with the Executive Director as necessary and appropriate.
Members or committees may forward submissions for agenda items to the
Chair and/or to the Executive Director. Except for items concerning the
adoption, amendment, or rescission of the bylaws in this part, an item
may be placed before the Board for consideration without the approval
of the Chair upon a two-thirds vote of the members present at a Board
meeting and any proxies to suspend the rules of order. Items concerning
the adoption, amendment, or rescission of the bylaws in this part may
be placed on a future Board agenda without the approval of the Chair
upon a vote of two-thirds of the membership of the Board (as fixed by
statute).
(e) Notice. (1) The Chair shall provide a schedule in writing of
Board meetings
[[Page 69171]]
for the upcoming year at least thirty (30) days prior to the January
Board meeting and shall provide to each Board member the agenda and
supporting materials for each meeting at least ten (10) work days prior
to each meeting. The ten (10) days notice requirement may be waived
upon a two-thirds vote by the members present at the Board meeting and
any proxies to suspend the rules of order.
(2) The public shall receive notice of the dates of meetings for
the upcoming year at least thirty (30) days prior to the January Board
meeting. Notice may be by publication of the schedule of meetings on
the agency's website and/or through any other means by which interested
members of the public are likely to access it. The notice shall include
a statement that the Board will provide reasonable accommodations,
absent an undue burden, that will enable members of the public to
participate in meetings.
(f) Cancellation. The Chair may cancel a regular meeting of the
Board by giving written notice of the cancellation at least ten (10)
work days prior to the meeting where practical. If the canceled meeting
is a public meeting, members of the public will be given notice of its
cancelation at the same time as Board members.
(g) Special meetings. The Chair may call special meetings of the
Board to deal with important matters arising between regular meetings
which require action by the Board prior to the next regular meeting.
Voting and discussion shall be limited to the subject matter which
necessitated the call of the special meeting. All Board members shall
receive reasonable advance notice of the time, place, and purpose of
the special meeting. If the special meeting is also a public meeting,
members of the public shall be given notice of its occurrence at the
same time as Board members, and such notice shall indicate that the
Board will provide reasonable accommodations for members of the public
to participate in the meeting, absent undue burden.
(h) Record. The Executive Director shall maintain a permanent
record of the minutes of all meetings and attendance. The Board shall
approve the final minutes after all corrections and additions have been
incorporated.
(i) Rules for Board meetings. Meetings of the Board shall be held
in accordance with Robert's Rules of Order, except as otherwise
prescribed in the bylaws in this part.
(j) Quorum. (1) A quorum shall be the majority of the membership of
the Board (as fixed by statute). A majority of the members required for
a quorum shall be public members.
(2) Proxies shall not be counted for purposes of establishing a
quorum.
(3) If a quorum is not present, a meeting shall be held only for
the purpose of discussion and no vote may be taken.
(k) Voting. (1) Only Board members may vote.
(2) Except as otherwise prescribed in the bylaws in this part, a
majority vote of the members present and any proxies is necessary for
action by the Board.
(3) The presiding officer shall have the same right to vote as any
other member.
(4) Any member may give his or her directed or undirected proxy to
any other Board member present at the meeting. Proxies shall be given
in writing and submitted to the Chair prior to or at the meeting. A
directed proxy shall be voided as to a specific issue if the question
on which the vote is eventually taken differs from the question to
which the proxy is directed.
(5) The Board may act on items of business between meetings by
notational voting. At the request of the Chair, the Executive Director
shall send a written ballot (which may be in the form of electronic
mail) to each Board member describing each item submitted for
notational voting. If any Board member requests discussion on an item,
the ballots shall not be counted and the Chair shall place the item on
the next Board meeting agenda for discussion and voting. Notational
votes shall ordinarily occur over a period of five (5) business days,
but may be extended, at the Chair's discretion, if, at the conclusion
of the voting period, an insufficient number of votes have been cast to
approve or disapprove an action.
(l) Telecommunications. A member of the Board shall be considered
present at a meeting when he or she participates in person or by
conference telephone or similar communication equipment that enables
all persons participating in the meeting to communicate with each
other.
0
8. In newly redesignated Sec. 1151.7, revise paragraphs (a)(1) and
(b)(2) and (3) to read as follows:
Sec. 1151.7 Committees.
(a) * * * (1) Establishment. The Board shall have an Executive
Committee to serve as a leadership and coordinating committee. The
Executive Committee acts on behalf of the Board in between regularly
scheduled Board meetings as necessary and as authorized by delegation
of the Board. In addition, the Executive Committee may perform one or
more of the following duties:
(i) Review and consider recommendations and proposals from the
various subject matter committees;
(ii) Review and make recommendations to the Board to amend or
approve the Board's bylaws; and
(iii) Request and review all committee charters.
* * * * *
(b) * * *
(2) Chair. The Chair of a subject matter committee shall be elected
by the Board after the election of the Chair and Vice-Chair of the
Board. The Chair of a subject matter committee shall serve as a member
of the Board's Executive Committee.
(3) Membership. Each subject matter committee shall be comprised of
a minimum of five (5), and a maximum of seven (7), members. Except for
the Chair of the committee who is elected by the Board, the members of
the committee shall be appointed by the Chair of the Board. Members
shall serve a term of one year corresponding to that of the Chair of
the Board, and continue their duties until their successors have been
appointed.
* * * * *
Christopher Kuczynski,
General Counsel.
[FR Doc. 2022-25147 Filed 11-17-22; 8:45 am]
BILLING CODE 8150-01-P
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