[Federal Register Volume 71, Number 33 (Friday, February 17, 2006)]
[Rules and Regulations]
[Pages 8483-8485]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1489]


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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).


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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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