[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 [www.gpo.gov]
[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, board.gov">kuczynski@access-board.gov.

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:
     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.
     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).
     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.
     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