[Federal Register Volume 86, Number 236 (Monday, December 13, 2021)]
[Rules and Regulations]
[Pages 70746-70748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26869]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 233

[Docket ID: DOD-2019-OS-0103]
RIN 0790-AK90


Federal Voting Assistance Program (FVAP)

AGENCY:  Office of the Under Secretary of Defense for Personnel and 
Readiness, Department of Defense (DoD).

ACTION:  Final rule.

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SUMMARY:  DoD is finalizing policy for the Federal Voting Assistance 
Program (FVAP) based on a March 6, 2020, interim final rule. The FVAP 
assists overseas Service members and other overseas citizens with 
exercising their voting rights by serving as a critical resource to 
successfully register to vote.

DATES: This rule is effective January 12, 2022.

FOR FURTHER INFORMATION CONTACT: David Beirne, (571) 372-0727.

SUPPLEMENTARY INFORMATION:

Background

    In the March 6, 2020, interim rule (85 FR 13045), DoD proposed 
amendments to:
     Include the United States Maritime Administration (MARAD) 
under agreement with the Department of Transportation and the United 
States Postal Service (USPS).
     Require DoD components to establish component-wide 
programs to communicate and disseminate voting information, with the 
goal of improving communication and clarity for the impacted 
population.
     Require Federal Agencies to enter into memorandums of 
understanding (MOU) with DoD to provide accurate, nonpartisan voting 
information and assistance to ensure military and overseas voters 
understand their voting rights, how to register and apply for an 
absentee ballot, and how to return their absentee ballot successfully.

Legal Basis

    The FVAP administers the Uniformed and Overseas Citizens Absentee 
Act (UOCAVA) on behalf of the Secretary of Defense, as the Presidential 
designee under 52 U.S.C. 20301(a) and Executive Order (E.O.) 12642, 
``Designation of Secretary of Defense as Presidential Designee'' (53 FR 
21975, June 8, 1988).
    United States citizens under UOCAVA include:
     Members and eligible family members of the Uniformed 
Services (Army, Navy, Marine Corps, Air Force, Space Force, Coast 
Guard, United States Public Health Service Commissioned Corps, and 
National Oceanic and Atmospheric Administration Commissioned Corps).
     Members of the Merchant Marine.
     U.S. citizens residing outside of the United States.
    Under 52 U.S.C. 20506, State voter registration agencies must 
provide individuals the opportunity to register to vote or to change 
their voter registration data when they apply for or receive services 
or assistance. The Secretary of Defense, under 10 U.S.C. 1566, must 
prescribe regulations to require the Military Services (Army, Navy, Air 
Force, and Marine Corps) to implement voting assistance programs that 
comply with DoD directives.
    Finally, 52 U.S.C. 22301(c)(1) requires Government departments, 
agencies, and other entities, upon the Presidential designee's request 
to distribute balloting materials and cooperate in carrying out UOCAVA.
    Additional information regarding internal DoD processes related to 
this program is contained in DoD Instruction 1000.04, ``Federal Voting 
Assistance Program (FVAP),'' which is publicly available at http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/100004p.pdf?ver=2017-12-01-105434-817.

Discussion of Comments

    Twelve comments were received on the interim rule. While one 
comment was not pertinent, a summary of the remaining 11 comments and 
the Department's responses are below.

[[Page 70747]]

    Five comments expressed favor for the rule change, with statements 
``like it affirms that the government can at least do something right 
and still protect overseas citizens' and military personnel's right to 
vote'', ``including people from the military and people who are 
overseas to participate in voting is a good idea because everyone 
should have an opportunity to vote even if they don't want to'', and 
``would prompt and increase the voting turnout of young voters, who are 
defending the interests of America . . . finally increase the education 
of voting to a certain demographic who may not get that form of 
information on a regular base due to the nature of their work.''
    Four comments asked for more participation from the states 
supporting outreach efforts such as providing more information so 
voters can learn how to access their Secretary of State or County's web 
page; ensuring closer collaboration between FVAP and the states to 
further legislation for voters to apply for a vote by mail ballot 
online directly; and improving processes to assist Service members and 
citizens overseas in remote locations where there can be significant 
communication challenges. One comment in particular, stated the rule 
should ensure voters on Formosa receive DoD assistance through the 
American Institute in Taiwan DoD attaches.
    FVAP Response: In each Federal election cycle, the FVAP program 
reaches out to State and local election officials to obtain the most up 
to date voting information and publishes State specific information at 
https://www.fvap.gov/. It also works with these officials to link the 
FVAP website with State and local election websites.
    FVAP, through the network of DoD and Department of State Voting 
Assistance Officers, takes the time and makes the effort to ensure 
military and overseas voters can cast their ballots successfully--from 
all over the world. The rule already ensures voters in Taiwan receive 
DoD voting assistance information through the American Institute in 
Taiwan and the Department of State. For example, the American Institute 
website provides FVAP's voting assistance information. See https://www.ait.org.tw/u-s-citizen-services/voting/ and https://www.ait.org.tw/offices/kaohsiung/messages-for-us-citizens-in-southern-taiwan/.
    Voters may with any questions or requests may also contact the 
American Institute in Taiwan by email at [email protected].
    One comment noted the overseas voting process includes the voter 
needing the ability to fill the ballot out, print, sign, and mail it 
in. This limits those voters that may not have internet access, access 
to a printer, envelopes, stamps, or access to a post office. Expecting 
those stationed overseas to be able to keep up with primary elections 
and the process of registering and how and when to vote is not 
practical for most military members, as well as citizens who are out of 
the country.
    FVAP Response: As states administer elections in the United States, 
their statutes and regulations define the rules for acceptance for 
voter registration requests, absentee ballot requests, and voted 
ballots. Currently, Federal law mandates states to provide blank 
ballots to voters electronically upon request. The forms prescribed by 
FVAP facilitate this process for all Federal elections, inclusive of 
primary elections.
    One comment stated that the Department violated the Congressional 
Review Act by beginning to implement the rule before the 60-day mandate 
ended.
    FVAP Response: The Department disagrees. The Congressional Review 
Act defines a major rule as one that has resulted in or is likely to 
result in:
    (1) An annual effect on the economy of $100 million or more;
    (2) a major increase in costs or prices for consumers, individual 
industries, Federal, state, or local government agencies, or geographic 
regions; or
    (3) significant adverse effects on competition, employment, 
investment, productivity, or innovation, or on the ability of United 
States-based enterprises to compete with foreign-based enterprises in 
domestic and export markets.
    This rulemaking makes a substantive impact upon how the Government 
will offer voting assistance, but it is not economically significant 
pursuant to the Congressional Review Act. It does not annually affect 
the economy in an amount of $100 million or more, does not increase 
costs to States and localities who administer elections, and does not 
adversely affect U.S. entity competition with foreign-based enterprises 
in domestic and export markets. Thus, the 60-day mandate under the 
Congressional Review Act does not apply.

Summary of Changes and Exception to Notice and Comment

    Based on the public comments received, DoD is not making any 
changes to the interim rule. However, the definition of Uniformed 
services in Sec.  233.3 is being revised to include the ``Space 
Force,'' as shown in the regulatory text of this final rule.
    This regulation can be effective, notwithstanding the general 
requirement in the Administrative Procedure Act (APA) for advance 
notice and comment. This rule is exempt from the APA's notice-and-
comment requirement, because it satisfies the good-cause exception. 5 
U.S.C. 553(b)(B). Specifically, notice-and-comment rulemaking is 
``unnecessary,'' id., because adding ``Space Force'' simply recognizes 
the Title 10 definition of Uniformed services that includes the sixth 
independent U.S. military service branch, which became law December 20, 
2019, as part of the 2020 National Defense Authorization Act. DoD has 
therefore, concluded that there is good cause to dispense with the 
advanced notice-and-comment rulemaking requirements in 5 U.S.C. 553 to 
include ``Space Force'' in the definition of Uniformed services. The 
amendment to this definition will ensure that members of the U.S. Space 
Force are fully aware of their voting rights.

Expected Impact of the Final Rule

    Finalizing current policies helps to establish a uniform framework 
within the Government on how to interact and disseminate communications 
with impacted populations overseas such as maximizing awareness of 
UOCAVA eligibility and providing resources to the impacted public 
populations. Entering into MOUs with other Federal Agencies will allow 
FVAP to strengthen its communications by expanding its outreach through 
other Federal Agencies. This will allow agencies to link to the 
FVAP.gov website and augment existing voter assistance information. 
These efforts boost voter awareness, education, and participation.
    For example, including MARAD under agreement with the Department of 
Transportation will allow the FVAP to better serve Merchant Marine 
uniformed Service members, because MARAD will directly coordinate FVAP 
guidance and instructions to better communicate with Merchant Marine 
members about how to vote absentee under UOCAVA. USPS provides 
essential services to assure the distribution of balloting materials to 
eligible voters and voted ballots to election officials.

E.O. 14019, ``Promoting Access to Voting''

    On March 7, 2021, the White House released Executive Order 14019 on 
Promoting Access to Voting. The purpose of the Executive Order is to 
protect and promote the exercise of the right to vote, eliminate 
discrimination and other barriers to voting, expand access to voter 
registration and accurate

[[Page 70748]]

election information, and ensure registering to vote and the act of 
voting be made simple and easy for all those eligible to do so. To 
accomplish this purpose, with this final rule DoD will facilitate the 
Executive Order in the following ways:
     Promoting opportunities to register to vote and 
participate in elections to include civilians working for the 
Department who vote locally;
     Distributing voter information and use of vote.gov in 
conjunction with fvap.gov website and current communications to support 
a comprehensive approach to voter awareness;
     Creating innovative solutions to reduce barriers and 
increase voter awareness of their status in the UOCAVA absentee voting 
process, including increased visibility of overseas ballots;
     Developing materials to support absentee voting by 
military and overseas U.S. citizens with limited English proficiency.

E.O. 12866, ``Regulatory Planning and Review''; E.O. 13563, ``Improving 
Regulation and Regulatory Review''

    E.O.s 12866 and 13563 direct agencies to assess all costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, distribute impacts, and equity). E.O. 13563 emphasizes the 
importance of quantifying both costs and benefits, of reducing costs, 
of harmonizing rules, and of promoting flexibility. This rule is not a 
``significant regulatory action,'' under Section 3(f) of E.O. 12866 and 
was not reviewed by the Office of Management and Budget (OMB).

Congressional Review Act, 5 U.S.C. 804(2)

    Under the Congressional Review Act, a major rule may not take 
effect until at least 60 days after submission to Congress of a report 
regarding the rule. A major rule is one that would have an annual 
effect on the economy of $100 million or more, or have certain other 
impacts.
    This rule is not a major rule under the Congressional Review Act.

Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 
U.S.C. 1532) requires agencies assess anticipated costs and benefits 
before issuing any rule whose mandates require spending in any 1 year 
of $100 million in 1995 dollars, updated annually for inflation. This 
rule will not mandate any requirements for State, local, or tribal 
governments, nor will the rule affect private sector costs.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    The DoD certifies that this rule is not subject to the Regulatory 
Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, 
have a significant economic impact on a substantial number of small 
entities. Therefore, the Regulatory Flexibility Act, as amended, does 
not require us to prepare a regulatory flexibility analysis.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been determined that 32 CFR part 233 does impose reporting 
or recordkeeping requirements under the Paperwork Reduction Act of 
1995. These information collections have been approved by OMB under the 
following control numbers: 0704-0502, ``Federal Write-In Absentee 
Ballot (FWAB)'' and 0704-0503, ``Federal Post Card Application 
(FPCA).''

Executive Order 13132, ``Federalism''

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a final rule that imposes 
substantial direct requirement costs on State and local governments, 
preempts State law, or otherwise has Federalism implications. This rule 
will not have a substantial effect on State and local governments.

Executive Order 13175, ``Consultation and Coordination With Indian 
Tribal Governments''

    It has been determined that this rule does not have a substantial 
effect on Indian tribal governments. This rule does not impose 
substantial direct compliance costs on one or more Indian tribes, 
preempt tribal law, or effect the distribution of power and 
responsibilities between the Federal Government and Indian tribes.

List of Subjects in 32 CFR Part 233

    Civil rights, Elections, Voting rights.

    Accordingly, the interim rule amending 32 CFR part 233, which was 
published at 85 FR 13045, on March 6, 2020, is adopted as a final rule 
with the following changes:

PART 233--[AMENDED]

0
1. The authority citation for part 233 continues to read as follows:

    Authority:  E.O. 12642; 10 U.S.C. 1566a; 52 U.S.C. 20506; 52 
U.S.C. Ch. 203.


0
2. Section 233.3 is amended by revising the definition of ``Uniformed 
services'' to read as follows:


Sec.  233.3  Definitions.

* * * * *
    Uniformed services. The Army, Navy, Air Force, Marine Corps, Space 
Force, and Coast Guard, the commissioned corps of the Public Health 
Service, and the commissioned corps of the National Oceanic and 
Atmospheric Administration.
* * * * *

    Dated: December 7, 2021.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2021-26869 Filed 12-10-21; 8:45 am]
BILLING CODE 5001-06-P