[Federal Register: August 18, 2008 (Volume 73, Number 160)]
[Notices]               
[Page 48202-48204]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18au08-37]                         

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ELECTION ASSISTANCE COMMISSION

 
Notice: Request for Public Comment

AGENCY: United States Election Assistance Commission.

ACTION: Notice: Request for Public Comment.

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SUMMARY: The EAC seeks public comment on a proposed policy entitled 
``Proposed Notice and Public Comment Policy.'' This policy is to 
provide effective notice for a period of public comment on all policies 
being considered for adoption by the United States Election Assistance 
Commission (EAC) that are not required for public comment under law.

DATES: Comments must be received by 5 p.m. ET on September 17, 2008.

ADDRESSES: Comments may be submitted: Online at http://www.eac.gov/
News/public-comment, via e-mail at havainfo@eac.gov, via mail addressed 
to the U.S. Election Assistance Commission, 1225 New York Ave, NW., 
Suite 1100, Washington, DC 20005, or by fax at 202/566-3127. Commenters 
are encouraged to submit comments electronically and include ``Notice 
and Public Comment'' in the subject line, to ensure timely receipt and 
consideration.

SUPPLEMENTARY INFORMATION: The following is the complete text of the 
proposed notice and public comment policy the EAC is seeking public 
comment on.

Proposed Notice and Public Comment Policy

 I. Purpose

    The purpose of this policy is to provide effective notice for a 
period of public comment on all policies being considered for adoption 
by the United States Election Assistance Commission (EAC), which are 
not subject to notice and comment under any federal statute. From time 
to time, EAC issues advisories, manuals, procedures, regulations and 
rules, which impact outside parties. Some of these policies and rules 
must be adopted after a period of public comment pursuant to the 
Administrative Procedures Act (APA) or other statutes, such as the Help 
America Vote Act (HAVA) or the National Voter Registration Act (NVRA). 
Other policies do not require such public participation; however, EAC 
is committed to make all of its policymaking activities open and 
transparent.
    EAC believes that public involvement in the policy process is the 
best way to develop sound policy and encourage public understanding of 
and participation in agency activities. As such, EAC desires to require 
notice and comment for all of its advisories, manuals, procedures, 
regulations and rules that may impact outside parties. To that end, 
this policy requires EAC to provide the public an opportunity to 
comment on any proposed policy or rule of general applicability (those 
impacting outside parties), even when such public comment is not 
otherwise required by law.
    This policy further outlines the roles, responsibilities and 
procedures for this process to assure that the public has effective 
notice and the ability to submit timely and meaningful comment on 
proposed EAC policies and rules.

II. Definitions

    A. ``Outside Party'' means any other government entity, 
corporation, non-profit association, or individual other than EAC. 
Outside Party shall not include Federal government executive branch or 
independent agencies.
    B. ``Policy of general applicability'' is a policy that applies to 
all relevant stakeholders. It is not a particular matter involving a 
single party that addresses a specific case or controversy, such as the 
resolution of one state's audit, or interpretations issued under the 
EAC's Testing and Certification and Laboratory Accreditation Programs. 
Matters of general applicability include the following:
     Program manuals adopted by EAC that impact outside 
parties, such as the testing and certification program manual, the 
laboratory accreditation manual, and grant manuals regarding any of the 
EAC distributed or managed grant programs.
     Guidance (other than that developed by EAC regarding 
sections 301-303 of HAVA), advisories, and advisory opinions related to 
the implementation or administration of

[[Page 48203]]

HAVA or the National Voter Registration Act (NVRA).
     Other regulations or policies concerning EAC 
administrative actions that impact outside parties.

III. Roles and Responsibilities

    A. Responsible Program Director. The Responsible Program Director 
is the EAC staff person who is generally responsible for the subject 
area addressed in a proposed policy or rule. The Responsible Program 
Director shall be responsible for preparing notices and assuring that 
proposed policies and rules for public comment are posted in a timely 
manner. In addition, the Responsible Program Director shall be 
responsible for collecting, analyzing and recommending a disposition on 
all comments received during the comment period. The Responsible 
Program Director shall produce the written summary of all comments 
received, as described above, within 14 days of the close of the 
comment period. The Responsible Program Director will regularly update 
the commissioners, executive director, chief operating officer, general 
counsel and all other appropriate EAC staff on the volume and types of 
comments that are received during the public comment period.
    When a policy or rule is proposed by a Commissioner, the Special 
Assistant assigned to that Commissioner shall assume all 
responsibilities of the Responsible Program Director and will regularly 
coordinate and share information with the executive director, general 
counsel, chief operating officer and the program director generally 
responsible for the subject area addressed in the proposed policy.
    B. Executive Director. The Executive Director shall assign a 
Responsible Program Director when such action is required. The 
Executive Director may approve a public comment period of between 15 
and 29 days, under limited circumstances and when good cause is 
demonstrated. The Executive Director may approve a waiver for 
publishing notice in the Federal Register under limited circumstances 
and when good cause is demonstrated. The Executive Director may grant 
an additional reasonable period of time beyond the required 14-day 
period for the Responsible Program Director to produce a written 
summary report of all comments received.
    C. General Counsel. The Office of the General Counsel shall provide 
counsel upon request to the Responsible Program Director, the Executive 
Director, or any Commissioner regarding the proposed policy or rule, 
posting of the document for effective notice and comment, review and 
disposition of any comment received, and/or any interpretation of this 
policy.

IV. Applicability

    Under this policy, any advisory, manual, procedure, regulation and 
rule of general applicability, which impacts outside parties (i.e. is 
not strictly limited to the internal operations of EAC), must be posted 
for notice and public comment. This policy applies even when neither 
the APA nor HAVA or NVRA require that a proposed policy or rule is 
subject to notice and public comment prior to adoption. For example, 
the APA requires that final rules of general applicability are 
published to provide notice to the public, but does not require that 
the agency take or receive comments on that rule. In this example, 
EAC's manual on its testing and certification program would not be 
required to be posted for notice and public comment by the APA. 
However, under this policy, a manual, which would have an impact on 
outside parties, must be posted for notice and public comment.
    This policy does not apply to circumstances wherein statutes such 
as APA or HAVA require notice and public comment prior to adoption of 
the guidance, regulation, rule, or policy statement. For example, the 
APA requires that regulations promulgated pursuant to the NVRA are 
posted for notice and public comment. Likewise, HAVA requires that 
guidance developed regarding Sections 301-303 of HAVA, as well as the 
Voluntary Voting System Guidelines, are subject to notice and public 
comment.

V. Effective and Sufficient Notice

    A. Comment Period. At a minimum, EAC will provide a period of 
public comment of no less than 30 days on all policies or rules of 
general applicability. The Responsible Program Director at his/her 
discretion may extend the period for public comment. The comment period 
on any policy or rule of general applicability may not exceed 180 days 
unless so extended by vote of the Commission when good cause is 
demonstrated for extending the comment period. Considerations for 
extension shall include, but are not limited to the content of the 
proposed policy or rule, the complexity of the proposed policy or rule, 
and intervening circumstances during the comment period.
    EAC recognizes that there may be good cause for the comment period 
to be less than 30 days so that the Commission can respond to a time 
sensitive matter in a timely manner. The Responsible Program Director 
must request such an exception in writing to the Executive Director, 
justifying the reason for requesting that the comment period be less 
than 30 days. The Executive Director may grant such an exception when 
good cause is demonstrated for reducing the public comment period and 
must do so in writing. Under no circumstance shall the period of public 
comment be less than 15 days. EAC acknowledges that such exemptions 
will be rare occurrences.
    B. Notice to the Public. In order to ensure that members of the 
public are apprised of EAC's publication of a proposed policy and 
solicitation for comments on the proposed policy, EAC will use the 
following methods of publication and notice to the public:
     Publishing a notice in the Federal Register notifying the 
public of the proposed policy or rule and soliciting comments by a date 
certain; and
     Publishing the proposed rule or policy on the EAC Web site 
and soliciting comments by a date certain; and
     Sending notice to EAC stakeholders, members of Congress 
and interested members of the media through a weekly e-mail newsletter.
    If the Responsible Program Director determines that publishing 
notice in the Federal Register will result in a comment period of less 
than 30 days, then he/she must request in writing to the Executive 
Director a waiver of publication of the notice in the Federal Register, 
demonstrating good cause for such a waiver. The Executive Director may 
grant such an exception when good cause is demonstrated and must do so 
in writing.
    The Responsible Program Director shall prepare notice of the 
proposed policy or rule and the solicitation for comments, which shall 
include a summary of the proposed action, and cause it to be published 
in the means identified above. Included in this responsibility is the 
duty to analyze and assign a reasonable period for accepting comments 
within the parameters established by this policy.
    C. Equal Ability to Comment. Under this policy, no draft or 
proposed policy or rule shall be released to any outside party prior to 
the time that it is posted for public comment. If it is determined that 
a proposed policy was released to a outside party prior to the 
beginning of the public comment period, the comment period shall be 
extended by 30 days in order to allow all members of the public to have 
equal ability to provide comment.

[[Page 48204]]

VI. Collecting and Receiving Public Comments

    For all proposed policies and rules, EAC shall accept comments by 
e-mail, fax, or in hard copy. However, EAC shall encourage members of 
the public to provide comments through an on-line portal on the EAC Web 
site or through an EAC established centralized comment submission 
program. Comments, regardless of the means of transmission, must be 
made available to the public as soon as practicable after they are 
received.

VII. Consideration of Comments

    The Responsible Program Director must timely read and consider each 
and every comment submitted during the comment period. In addition, the 
Responsible Program Director shall recommend a disposition for all 
comments. In the final consideration of the advisory, manual, 
procedure, regulation or rule, the Responsible Program Director shall 
provide a written summary of all comments received, indicating which of 
those comments should be accepted, rejected, or tabled for future 
consideration.
    The Responsible Program Director shall produce the written summary 
of all comments received, as described above, within 14 days of the 
close of the comment period. The Responsible Program Director may 
request an extended period of a reasonable length of time to complete 
the summary report. The request shall be submitted in writing to the 
Executive Director. The Executive Director may grant such an extension 
when good cause is demonstrated and must do so in writing.

VIII. Adoption of a Rule or Policy of General Applicability

    No rule or policy of general applicability shall be adopted by vote 
of the EAC unless:
     The proposed rule or policy has been posted for public 
comment in accordance with this policy; and
     All comments submitted in response to the proposed policy 
have been reviewed and considered; and
     A vote of three or more Commissioners approves the 
proposed policy and any changes that are recommended by the Responsible 
Program Director after review and consideration of the comments.

Thomas R. Wilkey,
Executive Director, U.S. Election Assistance Commission.
[FR Doc. E8-19067 Filed 8-15-08; 8:45 am]

BILLING CODE 6820-KF-P