[Federal Register Volume 73, Number 240 (Friday, December 12, 2008)]
[Notices]
[Pages 75698-75700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29442]


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ELECTION ASSISTANCE COMMISSION


Notice: Request for Public Comment on Proposed Advisory 09-001 
Maintenance of Effort Funding

AGENCY: United States Election Assistance Commission.

ACTION: Notice: request for public comment.

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SUMMARY: The EAC seeks public comment on the proposed policy ``Advisory 
09-001 Maintenance of Effort Funding.'' This advisory supersedes 
Advisories 07-003 and 07-003A and fulfills the Election Assistance 
Commission's (EAC) ongoing responsibility to provide information on the 
management of Federal funds provided under the Help America Vote Act 
(HAVA). EAC issues this notice according to a policy adopted on 
September 18, 2008 that requires EAC to provide notice and an 
opportunity for public comment on, among other things, advisories being 
considered for adoption by the U.S. Election Assistance Commission.

DATES: Comments must be received by 5 p.m. EST on January 6, 2009.

ADDRESSES: Comments may be submitted: Via e-mail at 
[email protected], 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 ``MOE Advisory 09-001'' in the subject line, 
to ensure timely receipt and consideration.

SUPPLEMENTARY INFORMATION: The following is the complete text of the 
proposed Advisory 09-001 Maintenance of Effort Funding the EAC is 
seeking public comment on.

Proposed Advisory 09-001 Maintenance of Effort Funding

EAC ADVISORY 09-001 MAINTENANCE OF EFFORT FUNDING

    Date Issued: DRAFT.

I. General

    This advisory supersedes Advisories 07-003 and 07-003A and fulfills 
the Election Assistance Commission's (EAC) ongoing responsibility to 
provide information on the management of Federal funds provided under 
the Help America Vote Act (HAVA). For recipients of HAVA Title II 
Requirements Payments, this advisory specifies the entities to which 
the Maintenance of Effort (MOE) requirement applies, explains how to 
calculate the MOE base level amount, and describes how to satisfy the 
continuing requirement for MOE.
    MOE is a means by which Congress, and thereby the Federal 
Government, requires a recipient to share in the funding of a 
particular endeavor by requiring that the Federal funding actually 
increases the amount of financial support to a particular program or 
task. Specifically, MOE requirements are used to ensure that the 
recipient is not replacing or supplanting its prior level of spending 
on a particular program or task with Federal dollars.

II. Applicability to HAVA

    Section 254(a)(7) of HAVA establishes the requirement for MOE, as 
follows:

    How the State, in using the requirements payment, will maintain 
the expenditures of the State for activities funded by the payment 
at a level that is not less than the level of such expenditures 
maintained by the State for the fiscal year ending prior to November 
2000 (hereinafter referred to as state fiscal year 2000).

The MOE requirement is defined by a pre-determined ``base level of 
expenditure'' expended in state fiscal year 2000 for election 
administration

[[Page 75699]]

costs funded by HAVA Requirements Payments.\1\ Recipients of HAVA 
Requirements Payments are required to maintain this expenditure level, 
in addition to spending of HAVA dollars, as a condition of receipt of 
funds.
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    \1\ Activities funded by HAVA Title II Requirements Payments 
include: (1) Procuring voting systems that comply with the 
requirements of HAVA Title III, Section 301, (2) developing, 
operating, and/or maintaining a computerized statewide voter 
registration list, (3) providing required information to voters at 
the polling place for Federal elections, (4) implementing and/or 
operating a system of provisional voting during Federal elections; 
(5) implementing identification requirements for first-time voters 
who register to vote by mail, and (6) improving the administration 
of elections for Federal office. Therefore, if a State was spending 
money on any of these types of activities in the state fiscal year 
2000, it will be subject to the MOE requirement.
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III. Applicability to Recipients of Title II, Section 251 Requirements 
Payments

    Per HAVA Sections 253 and 254(a)(7), MOE is applicable to 
recipients of HAVA Requirements Payments. State election offices in 
each of the 50 states, the District of Columbia, Puerto Rico, the U.S. 
Virgin Islands, Guam, and American Samoa (``States'') are the grant 
recipients of Requirements Payments. As the grant recipients, State 
election offices are required to meet the MOE requirements and maintain 
appropriate supporting documentation.

IV. Calculation of Base Level of Expenditure

    Per HAVA Section 254(a)(7), each State's State Plan must include a 
description of how the State intends to meet the MOE requirements. 
Although not required, the EAC encourages that State Plans specify 
whether the State had expenditures in state fiscal year 2000 that 
triggered MOE, identify the amount expended in state fiscal year 2000, 
and explain how the State intends to meet the MOE requirements. That 
notwithstanding, if a State had expenditures that triggered MOE, it 
must maintain documentation to support the determination of the base 
level of expenditure for state fiscal year 2000 for audit purposes. 
States may calculate the base level of expenditure for state fiscal 
year 2000 in either of two manners:
    1. Identify the total expended by the State on all election 
administration activities in state fiscal year 2000.\2\
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    \2\ With this method, a State may use its entire budget for 
election-related activity in state fiscal year 2000 to establish the 
base level of expenditure. It is not necessary to break out 
activities related to Title III.
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    Or
    2. Identify the total expended by the State for each Title III-
related activity in state fiscal year 2000.\3\
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    \3\ With this method, a State needs to identify separately the 
amount spent on any of the following activities in state fiscal year 
2000: voting equipment, voter registration database, ID 
requirements, provisional voting, and voter information.

    Note: If no funds were expended by the State in state fiscal 
year 2000 for activities related to Title III, the State shall 
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maintain a record of such determination.


V. Satisfaction of MOE

    Per HAVA Section 254(a)(7), a State must meet the MOE requirement 
in each applicable fiscal year in which it expended Title II 
Requirements Payments. If no Requirements Payments are used in a fiscal 
year, there is no applicable MOE requirement for that year.
    A State may determine that it has met the MOE requirement in an 
applicable Federal fiscal year by expending the same or greater amount 
of State funds \4\ than the base year level of expenditure on either:
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    \4\ State funds used to meet an MOE requirement may not include 
funds provided as the State's 5 percent match.
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    1. All election administration activities.\5\
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    \5\ If the total State dollars expended on election-related 
activities for a given fiscal year is the same or greater than the 
total base level for state fiscal year 2000, the State will have met 
the MOE requirement for that year.
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    Or
    2. Each HAVA activity (or activities) on which the state expends 
funds as the corresponding base year activity (or activities).\6\
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    \6\ The State, for example, would need to document that the 
State expended in a given fiscal year the same or more on each 
activity on which Requirements Payments are expended than the amount 
spent in each allowable area in state fiscal year 2000: Voting 
equipment, voter registration database, ID requirements, provisional 
voting, and voter information. If the State does not spend any 
Requirements Payments on an activity (say, voting equipment) in a 
particular fiscal year, then the MOE requirement for that activity 
(voting equipment) would not apply.
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VI. Sub-Award of HAVA Title II Requirements Payments and MOE

    State election offices may sub-award HAVA funds to counties or 
local units of government per HAVA Section 254(a)(2). However, if a 
State sub-awards Requirements Payments to counties or local units of 
government, then the county or local unit of government is also subject 
to the requirements of MOE. In accordance with the ``Common Rule,'' 
which requires States to ensure sub-recipients comply with the 
requirements of Federal statutes, the State election office is 
responsible for ensuring that a sub-recipient is not replacing or 
supplanting its prior level of spending on a particular program or task 
with Federal dollars.
    The State Plan must include a description of the distribution and 
monitoring of these sub-awards, including MOE requirements. Although 
not required, the EAC encourages States to provide detailed and 
specific information in the State Plan on the manner in which the State 
intends to account for MOE by sub-recipient. In any event, if a State 
sub-awards Requirements Payments, it must maintain documentation to 
support its monitoring methods, including determinations of MOE base 
levels of sub-recipients, for audit purposes.

VII. Calculation of Base Level of Expenditure for Sub-Recipients

    If a State sub-awards grants to county or local units of government 
for a specific activity (or activities), then the county's or local 
unit government's base level of expenditure for state fiscal year 2000 
may be calculated in either of two manners:
    1. Identify the total expended by the sub-recipient on all election 
administration activities.\7\
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    \7\ With this method, a sub-recipient may use its entire budget 
for election-related activity in state fiscal year 2000 to establish 
the base level of expenditure. It is not necessary to break out 
activities related to Title III.
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    Or
    2. Identify the total expended by the sub-recipient on the specific 
activity (activities) for which Federal funds were provided.\8\
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    \8\ For example, if a State provides a sub-grant for the 
purchase of voting equipment, the base level calculation does not 
need to include all expenditures toward activities allowed by HAVA, 
but rather the calculation includes only the expenditures on voting 
equipment by the recipient county or local unit of government in 
state fiscal year 2000.

    Note: If no funds were expended by the sub-recipient in state 
fiscal year 2000 for the activity (activities) related to Title III, 
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the State shall maintain a record of such determination.

    If a State sub-awards grants to a sub-recipient for a non-specific 
activity, other than all activities allowed by HAVA, then the sub-
recipient's base level of expenditure for state fiscal year 2000 may be 
calculated in either of two manners:
    1. Identify the total expended by the sub-recipient on all election 
administration activities in the state fiscal year 2000.\9\

    \9\ With this method, a sub-recipient may use its entire budget 
for election-related activity in state fiscal year 2000 to establish 
the base level of expenditure. It is not necessary to break out 
activities related to Title III.

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[[Page 75700]]

    Or
    2. Identify the total expended by sub-recipient for each Title III-
related activity in state fiscal year.\10\
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    \10\ With this method, a sub-recipient needs to identify 
separately the amount spent on any of the following activities in 
state fiscal year 2000: Voting equipment, voter registration 
database, ID requirements, provisional voting, and voter 
information.

    Note: If no funds were expended by the sub-recipient in state 
fiscal year 2000 for the activities related to Title III, the State 
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shall maintain a record of such determination.


VIII. Satisfaction of MOE by Sub-Recipients

    As the grant recipient, the State is ultimately responsible for 
ensuring compliance with the MOE, including compliance by sub-
recipients. The MOE requirement is applicable to sub-recipients in each 
fiscal year in which the sub-recipient expends Title II Requirements 
Payments. If no Requirements Payments are used in a fiscal year, there 
is no applicable MOE requirement for that year. The State may determine 
compliance with the MOE requirements by its sub-recipients in either of 
two manners:
    1. The State may hold each sub-recipient individually responsible 
for meeting an applicable MOE requirement by determining the sub-
recipient expends the same or greater local funds than the sub-
recipient's base level of expenditure \11\ on either:
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    \11\ In this method, the sub-recipient county or local unit of 
government would be responsible for the applicable MOE for any 
Requirements Payments expended in a given fiscal year.
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    a. All election administration activities.\12\
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    \12\ If the total local dollars expended by the sub-recipient on 
election-related activities for a given fiscal year are the same or 
greater than the total base level, the sub-recipient will have met 
the MOE requirement for that year.
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    Or
    b. Each HAVA activity (or activities) on which the sub-recipient 
expends funds as the corresponding base year activity (or 
activities).\13\
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    \13\ The sub-recipient, for example, would need to document that 
the sub-recipient expended in a given fiscal year the same or more 
on each activity on which Requirements Payments are expended than 
the amount spent in each allowable area in state fiscal year 2000: 
Voting equipment, voter registration database, ID requirements, 
provisional voting, and voter information. If the sub-recipient does 
not spend any Requirements Payments on an activity (say, voting 
equipment) in a particular fiscal year, then the MOE requirement for 
that activity (voting equipment) would not apply.
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    Or
    2. The State may assume responsibility for meeting the MOE 
requirements of its sub-recipients by expending State dollars in an 
amount equal or greater than the sub-recipient's base level of 
expenditure, in addition to any MOE applicable to the State, in each 
Federal fiscal year that HAVA funds are used by the sub-recipient \14\ 
on either:
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    \14\ In this method, the State will absorb responsibility by 
expending State dollars, in excess of the State's MOE requirement, 
to account for a sub-recipient's MOE.
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    a. All election administration activities.\15\
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    \15\ The State, for example, must expend the same or more State 
dollars in each applicable fiscal year than the sub-recipient's 
total base level.
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    Or
    b. Each HAVA activity (or activities) on which the sub-recipient 
expends funds as the corresponding base year activity (or 
activities).\16\
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    \16\ The State in each applicable fiscal year, for example, must 
expend the same or more in each allowable area than the amount spent 
by the sub-recipient in each allowable area in state fiscal year 
2000: Voting equipment, voter registration database, ID 
requirements, provisional voting, and voter information. If the sub-
recipient does not spend any Requirements Payments on an activity 
(say, voting equipment) in a particular fiscal year, then the MOE 
requirement for that activity (voting equipment) would not apply.

Donetta L. Davidson,
Vice-Chair, U.S. Election Assistance Commission.
[FR Doc. E8-29442 Filed 12-11-08; 8:45 am]
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