Federal Register: December 12, 2008 (Volume 73, Number 240)
DOCID: fr12de08-57 FR Doc E8-29442
ELECTION ASSISTANCE COMMISSION
Election Assistance Commission
NOTICE: NOTICES
DOCID: fr12de08-57
DOCUMENT ACTION: Notice: request for public comment.
SUBJECT CATEGORY:
Notice: Request for Public Comment on Proposed Advisory 09-001 Maintenance of Effort Funding
DATES: Comments must be received by 5 p.m. EST on January 6, 2009.
DOCUMENT SUMMARY:
The EAC seeks public comment on the proposed policy ``Advisory 09001 Maintenance of Effort Funding.'' This advisory supersedes Advisories 07003 and 07003A 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.
SUMMARY:
Proposed Advisory 09-001 Maintenance of Effort Funding; Request for Public Comment,
SUPPLEMENTAL INFORMATION
The following is the complete text of the
proposed Advisory 09001 Maintenance of Effort Funding the EAC is seeking public comment on.
Proposed Advisory 09001 Maintenance of Effort Funding
EAC ADVISORY 09001 MAINTENANCE OF EFFORT FUNDING
Date Issued: DRAFT.
I. General
This advisory supersedes Advisories 07003 and 07003A 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 predetermined ``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.
\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 firsttime 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.
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\
\2\ With this method, a State may use its entire budget for
electionrelated 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.
Or
2. Identify the total expended by the State for each Title III related activity in state fiscal year 2000.\3\
\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 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:
\4\ State funds used to meet an MOE requirement may not include funds provided as the State's 5 percent match.
1. All election administration activities.\5\
\5\ If the total State dollars expended on electionrelated
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.
Or
2. Each HAVA activity (or activities) on which the state expends
funds as the corresponding base year activity (or activities).\6\
\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.
VI. SubAward of HAVA Title II Requirements Payments and MOE
State election offices may subaward HAVA funds to counties or local units of government per HAVA Section 254(a)(2). However, if a State subawards 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 subrecipients comply with the requirements of Federal statutes, the State election office is responsible for ensuring that a subrecipient 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 subawards, 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 subrecipient. In any event, if a State
subawards Requirements Payments, it must maintain documentation to
support its monitoring methods, including determinations of MOE base levels of subrecipients, for audit purposes.
VII. Calculation of Base Level of Expenditure for SubRecipients
If a State subawards 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 subrecipient on all election administration activities.\7\
\7\ With this method, a subrecipient may use its entire budget
for electionrelated 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.
Or
2. Identify the total expended by the subrecipient on the specific activity (activities) for which Federal funds were provided.\8\ \8\ For example, if a State provides a subgrant 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 subrecipient in state fiscal year 2000 for the activity (activities) related to Title III, the State shall maintain a record of such determination.
If a State subawards grants to a subrecipient for a nonspecific 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 subrecipient on all election
administration activities in the state fiscal year 2000.\9\
\9\ With this method, a subrecipient may use its entire budget
for electionrelated 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.
[[Page 75700]]
Or
2. Identify the total expended by subrecipient for each Title III related activity in state fiscal year.\10\
\10\ With this method, a subrecipient 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 subrecipient in state fiscal year 2000 for the activities related to Title III, the State shall maintain a record of such determination.
VIII. Satisfaction of MOE by SubRecipients
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 subrecipients in each fiscal year in which the subrecipient 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 subrecipients in either of two manners:
1. The State may hold each subrecipient 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:
\11\ In this method, the subrecipient county or local unit of
government would be responsible for the applicable MOE for any Requirements Payments expended in a given fiscal year.
a. All election administration activities.\12\
\12\ If the total local dollars expended by the subrecipient on
electionrelated activities for a given fiscal year are the same or
greater than the total base level, the subrecipient will have met the MOE requirement for that year.
Or
b. Each HAVA activity (or activities) on which the subrecipient expends funds as the corresponding base year activity (or
activities).\13\
\13\ The subrecipient, for example, would need to document that
the subrecipient 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 subrecipient 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.
Or
2. The State may assume responsibility for meeting the MOE
requirements of its subrecipients by expending State dollars in an
amount equal or greater than the subrecipient'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 subrecipient \14\ on either:
\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 subrecipient's MOE.
a. All election administration activities.\15\
\15\ The State, for example, must expend the same or more State
dollars in each applicable fiscal year than the subrecipient's total base level.
Or
b. Each HAVA activity (or activities) on which the subrecipient expends funds as the corresponding base year activity (or
activities).\16\
\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 subrecipient 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,
ViceChair, U.S. Election Assistance Commission.
[FR Doc. E829442 Filed 121108; 8:45 am]
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