Rule2021-26869
Federal Voting Assistance Program (FVAP)
Primary source
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Published
December 13, 2021
Effective
January 12, 2022
Issuing agencies
Defense Department
Abstract
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.
Full Text
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<title>Federal Register, Volume 86 Issue 236 (Monday, December 13, 2021)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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:
<bullet> Include the United States Maritime Administration (MARAD)
under agreement with the Department of Transportation and the United
States Postal Service (USPS).
<bullet> 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.
<bullet> 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:
<bullet> 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).
<bullet> Members of the Merchant Marine.
<bullet> 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 <a href="http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/100004p.pdf?ver=2017-12-01-105434-817">http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/100004p.pdf?ver=2017-12-01-105434-817</a>.
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
<a href="https://www.fvap.gov/">https://www.fvap.gov/</a>. 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 <a href="https://www.ait.org.tw/u-s-citizen-services/voting/">https://www.ait.org.tw/u-s-citizen-services/voting/</a> and <a href="https://www.ait.org.tw/offices/kaohsiung/messages-for-us-citizens-in-southern-taiwan/">https://www.ait.org.tw/offices/kaohsiung/messages-for-us-citizens-in-southern-taiwan/</a>.
Voters may with any questions or requests may also contact the
American Institute in Taiwan by email at <a href="/cdn-cgi/l/email-protection#fea8918a9baa9f978e9b97be8d8a9f8a9bd0999188"><span class="__cf_email__" data-cfemail="c690a9b2a392a7afb6a3af86b5b2a7b2a3e8a1a9b0">[email protected]</span></a>.
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
<a href="http://FVAP.gov">FVAP.gov</a> 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:
<bullet> Promoting opportunities to register to vote and
participate in elections to include civilians working for the
Department who vote locally;
<bullet> Distributing voter information and use of <a href="http://vote.gov">vote.gov</a> in
conjunction with fvap.gov website and current communications to support
a comprehensive approach to voter awareness;
<bullet> 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;
<bullet> 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
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