Sec. 5. Advisory panel and guidelines
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The Commission shall establish an advisory panel of independent experts on election cybersecurity. The Advisory Panel shall consist of not less than 9 members, of whom— one shall be appointed by the Chairman, in consultation with the Secretary and the Director of the National Institute of Standards and Technology, and shall be designated as the Chairman of the advisory panel; four shall be appointed by the Chairman, in consultation with the Secretary; and four shall be appointed by the Secretary, in consultation with the Chairman and the Director of the National Institute of Standards and Technology.
Individuals appointed to the Advisory Panel established under paragraph (1)— may not be officers or employees of the United States; if appointed under paragraph (2)(A), shall possess expertise in election law, election administration, or cybersecurity; and if appointed under subparagraph
(B)or
(C)of paragraph (2), shall possess expertise in cybersecurity. Members of the Advisory Panel shall serve for a term set by the Commission. Any vacancy in the Advisory Panel shall be filled in the same manner as the original appointment. Members of the Advisory Panel shall serve on the Advisory Panel without compensation, except that members of the Advisory Panel may be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I of chapter 57 of title 5, United States Code, while away from their homes or regular places of business in the performance of services for the Advisory Panel. Upon request of the Advisory Panel, the Commission shall provide to the Advisory Panel, on a reimbursable basis, the administrative support services necessary for the Advisory Panel to carry out its responsibilities under this Act. The Advisory Panel shall develop a set of guidelines for election cybersecurity, including standards for procuring, maintaining, testing, auditing, operating, and updating election systems. In developing the guidelines, the Advisory Panel shall— identify the top risks to election systems; describe how specific technology choices can increase or decrease those risks; and provide recommended policies, best practices, and overall security strategies for identifying, protecting against, detecting, responding to, and recovering from the risks identified under subparagraph (A). The Advisory Panel shall assist the Commission and the Department in carrying out the grant program required under section 7 by— submitting recommendations to the Commission about the grant program application process; submitting recommendations, including recommended criteria, to the Commission for the grant program review process; submitting recommendations, including recommended criteria, to the Commission for use of remaining grant funds; submitting recommendations, including recommended criteria, to the Commission for the interim grant program for non-paper equipment replacement; and providing any other assistance that the Commission or the Department requests. The guidelines developed under subsection
(b)shall include provisions regarding voting systems and statistical audits for Federal elections, including that— each vote is cast using a voting system that— would be eligible to be purchased under section 7(f); and allows the voter an opportunity to inspect and confirm the marked ballot before casting it (consistent with accessibility requirements); and each election result is determined by tabulating marked ballots (by hand or device), and prior to certification by a State of the election result, election agencies within the State inspect (by hand and not by device) a random sample of the marked ballots and thereby establish high statistical confidence in the election result. In developing the guidelines required under subsection (b), the Advisory Panel shall consider— applying established cybersecurity best practices to Federal election administration by States and local governments, including appropriate technologies, procedures, and personnel for identifying, protecting against, detecting, responding to, and recovering from cybersecurity events; mechanisms to verify that election systems accurately tabulate ballots, report results, and identify a winner for each election for Federal office, even if there is an error or fault in the voting system; specific types of election audits, including procedures and shortcomings for such audits; durational requirements needed to facilitate election audits prior to election certification, including variations in the acceptance of postal ballots, time allowed to cure provisional ballots, and election certification deadlines; providing actionable guidance to election agencies that have not applied for or received grant funds under section 7, and to agencies that seek to implement additional cybersecurity protections; how the guidelines could assist other components of State and local governments; and any other factors that the Advisory Panel determines to be relevant. In developing the guidelines required under subsection (b), the Advisory Panel shall consider— the voluntary voting system guidelines developed by the Commission; and cybersecurity standards and best practices developed by the National Institute of Standards and Technology, including frameworks, consistent with section 2(c) of the National Institute of Standards and Technology Act ( 15 U.S.C. 272(c) ). The Advisory Panel shall— provide a reasonable opportunity for public comment, including through Commission publication in the Federal Register, on the guidelines required under subsection (b), including a 45-day opportunity for public comment on a draft of the guidelines before they are submitted under subsection (i), which shall, to the extent practicable, occur concurrently with the other activities of the Advisory Panel under this section; and consider the public comments in developing the guidelines. In developing the guidelines required under subsection (b), the Advisory Panel shall consult with— the appropriate Federal entities; the Standards Board, Board of Advisors, and Technical Guidelines Development Committee of the Commission; the Federal Communications Commission; the Federal Trade Commission; the National Governors Association; the National Association of Secretaries of State; the National Association of State Election Directors; the National Association of Election Officials; the National Association of Counties; the National League of Cities; the International Association of Government Officials; the Multi-State Information Sharing and Analysis Center; the National Science Foundation; and any other interested entities that the Advisory Panel determines are necessary to the development of the guidelines. Not later than 180 days after the date of enactment of this Act, the Advisory Panel shall submit the guidelines required under subsection
(b)to the Commission. Not later than 14 calendar days after the date on which the Commission receives guidelines under subsection
(h)or (l), the Commission shall submit the guidelines to the appropriate congressional committees. The Commission may modify the guidelines in advance of submission to Congress if— the Commission determines that there is good cause to modify the guidelines, consistent with the considerations established in subsection
(e)and notwithstanding the recommendation of the Advisory Panel; and the Commission submits a written justification of the modification to the Advisory Panel and the appropriate congressional committees. The Commission shall distribute the guidelines required under subsection
(b)to all election agencies known to the Commission and the Department. The Commission shall make the guidelines required under subsection
(b)available on the public website of the Department. Not later than January 31, 2019, and once every 2 years thereafter, the Advisory Panel shall review and update the guidelines required under subsection (b). Nothing in this section shall be construed to subject the process for developing the guidelines required under subsection
(b)to subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the Administrative Procedure Act ). Section 202 of the Help America Vote Act of 2002 ( 52 U.S.C. 20921 ) is amended by striking and at the end of paragraph (5), by striking the period at the end of paragraph
(6)and inserting ; and , and by adding at the end the following new paragraph: establishing the advisory panel of independent experts on election cybersecurity under section 5(a)(1) of the Secure Elections Act . .
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