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NOTICE: Part III

DOCUMENT ACTION: Notice; Publication of Voting System Test Laboratory Program Manual.

SUBJECT CATEGORY: Procedural Manual for the Election Assistance Commission's Voting System Test Laboratory Program

DOCUMENT SUMMARY: The U.S. Election Assistance Commission (EAC) is publishing a procedural manual for its Voting System Test Laboratory Program. This program sets the administrative procedures for laboratories to obtain and maintain accreditation to test voting systems under the EAC's Voluntary Testing and Certification Program. The program is mandated by the Help America Vote Act (HAVA) at 42 U.S.C. 15371.

SUMMARY: Election Assistance Commission,

SUPPLEMENTAL INFORMATION

HAVA requires that the EAC certify and decertify voting systems through testing conducted by accredited laboratories. Section 231(a)(1) of HAVA (42 U.S.C. 15371) specifically requires the EAC to ``* * * provide for the testing, certification, decertification and recertification of voting system hardware and software by accredited laboratories.'' To meet this obligation, the EAC has created a voluntary program to test voting systems to Federal voting system standards by accredited laboratories. The Voting System Test Laboratory Program Manual sets the procedures for the test laboratories to follow in order to receive and maintain accreditation as well as procedures for the documentation and publication of testing information.

In creating the Laboratory Manual the EAC sought input from experts and stakeholders. Specifically, the EAC conducted meetings with representatives from the voting system test laboratories and from the voting system manufacturing community. Additionally, the EAC sought input from the public. A draft version of the EAC Voting System Test Laboratory Program Manual was published with a request for public comment on February 4, 2008. (73 FR 6495). The public comment period was open until 5 p.m. EST on April 4, 2008. While previous notice and public comment period were not required by law, all comments received were considered in the drafting of this final administrative manual. [[Page 50141]]

Discussion of Comments

The EAC received thirtyeight comments from the public. The majority of these comments came from voting system test laboratories, with the remainder coming from the general public.

The majority of comments received by the Commission raised concerns or questioned the meaning or application of various provisions of the manual. Another block of comments were less specific and focused on the fundamental purpose behind the program or its basic methodology. Comments in this category included concerns regarding the level of allowable participation by manufacturers in the testing process and the responsibilities of Voting System Test Laboratories regarding third party testing. Finally, there were a range of specific recommendations on a wide variety of topics. Examples include: (1) Changing the scope of core and noncore testing; (2) clarifying who is responsible for the validation of test methods; (3) allowing hardware mitigation by the manufacturer; (4) clarifying the scope of the use of prior testing in a testing campaign; (5) clarifying the restriction on testing at manufacturer owned or controlled facilities and the allowance of such activity in conjunction with the witness or trusted build; and (6) placing the responsibility for the proper identification of proprietary information on the manufacturer and not on the testing laboratory.

The EAC reviewed and considered each of the comments presented. In doing so, it also gathered additional information and performed research regarding the suggestions. The EAC's commitment to public participation is evident in the final version of the Laboratory Manual. The Manual has been enhanced in a number of areas in response to public comment. A total of about five pages have been added to the Manual. Throughout the entire Manual the EAC added or amended language to clarify its procedures consistent with the comments it received. For example, to further clarify terminology used throughout the Manual eight terms were newly defined or significantly clarified in the definition section of Chapter 1. Additionally, the EAC made changes to clarify the independent role of Voting System Test Labs in the program, enhance the supervision requirements of EAC accredited laboratories over third party contracted laboratories, and further defined the level of detail required by the EAC on test plans, test cases, and test reports. Finally, the EAC clarified financial stability documentation requirements for laboratories seeking accreditation.
Thomas R. Wilkey,
Executive Director, U.S. Election Assistance Commission.
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Paperwork Reduction Act

The reporting requirements in this manual are pending approval under the Paperwork Reduction Act of 1995, by the Office of Management and Budget Control (OMB). Persons are not required to respond to this collection of information unless it displays a currently valid OMB number. Information gathered pursuant to this document and its forms will be used solely to administer the EAC Testing & Certification and Laboratory Accreditation Program. This program is voluntary. Individuals who wish to participate in the program, however, must meet its requirements. The estimated total annual hourly burden on the voting system manufacturing industry and election officials is 200 hours. This estimate includes the time required for reviewing the instructions, gathering information, and completing the prescribed forms. Send comments regarding this burden estimate or any other aspect of this collection, including suggestions for reducing this burden to the U.S. Election Assistance Commission, Voting System Testing and Certification Program, Office of the Program Director, 1225 New York Avenue, NW., Suite 1100, Washington, DC 20005.
1. Introduction
1.1. Background
1.2. Authority
1.3. Role of the National Institute of Standards and Technology 1.4. Scope
1.7. Program Personnel
1.8. Submission of Documents
1.9. Receipt of DocumentsVSTL
1.10. Receipt of DocumentsEAC
1.11. Record RetentionEAC
1.12. Publication and Release of Documents
1.13. References
1.14. Definitions
1.15. Acronyms and Abbreviations
2. Program Requirements
2.1. Overview
2.2. Program RequirementsGenerally
2.3. NIST Recommendation
2.4. NVLAP Accreditation
2.5. Conflict of Interest and Prohibited Practices Program
2.6. Personnel Policies
2.7. Notification of Changes
2.8. Site Visits
2.9. Notice of Lawsuits
2.10. Testing, Technical Practices and Reporting
2.11. Laboratory Independence
2.12. Authority To Do Business in the United States
2.13. Communications
2.14. Resources and Financial Stability
2.15. Recordkeeping
3. Accreditation Process
3.1. Overview
3.2. NIST Recommendation
3.3. EAC Invitation
3.4. Application
3.5. EAC Review of Application Package
3.6. Grant of Accreditation
3.7. Effect of Accreditation
3.8. Expiration and Renewal of Accreditation
3.9. Denial of Accreditation
3.10. Requesting Appeal
3.11. EAC Action on a Request for Appeal
3.12. Submission of Appeal
3.13. Consideration of Appeal
3.14. Commissioner's Decision on Appeal
3.15. Effect of Denial of Accreditation
4. Compliance Management Program
4.1. Purpose
4.2. Compliance Management Program, Generally
4.3. VSTL Notification of Changes
4.4. Request for Documents and Information
4.5. On Site Laboratory ReviewGenerally
4.6. On Site Laboratory ReviewFrequency
4.7. On Site Laboratory ReviewProcedure
4.8. EAC Compliance Management Reports
4.9. Corrective Action
5. Revocation of Accreditation
5.1. Overview
5.2. Revocation Policy
5.3. RevocationGenerally
5.4. Notice of Intent to Suspend
5.5. Suspension of Accreditation
5.6. Commissioners' Decision on Revocation of Accreditation 5.7. Effect of Revocation of Accreditation
5.8. Requesting Appeal
5.9. EAC Action on a Request for Appeal
5.10. Submission of Appeal
5.11. Consideration of Appeal
5.12. Commissioner's Decision on Appeal
6. Requests for Interpretations
6.1. Overview
6.2. Policy
6.3. Requirements for Submitting a Request for Interpretation 6.4. Procedure for Submitting a Request for Interpretation
6.5. EAC Action on a Request for Interpretation
6.6. Effect of Interpretation
6.7. Library of Interpretations
7. Release of Laboratory Accreditation Program Information
7.1. Overview
7.2. EAC Policy on the Release of Certification Program Information 7.3. Trade Secrets
7.4. Privileged or Confidential Commercial Information
7.5. EAC's Responsibilities
7.6. VSTL's Responsibilities
7.7. Personal Information
Appendix A. Certification Test Plan Format and Content
Appendix B. Certification Test Report Format and Content
Appendix C. Certification of Laboratory Conditions and Practices Form Appendix D. Specification for Reproduction and Use of the EAC Laboratory Accreditation Logo

1. Introduction

1.1. Background. The Federal Election Commission (FEC) adopted the first formal set of voluntary Federal standards for computerbased voting systems in January 1990. At that time, no national program or organization existed to test and certify such systems to the standards. The National Association of State Election Directors (NASED) stepped up to fill this void in 1994. NASED is an independent, nongovernmental organization of State election officials. The organization formed the nation's first national program to test and qualify voting systems to the new Federal standards. This program utilized independent laboratories to test voting system to voluntary Federal standards. To facilitate this process NASED accredited these test laboratories, which it referred to as Independent Test Authorities (ITA). In late 2002, Congress passed the Help America Vote Act of 2002 (HAVA). HAVA created the U.S. Election Assistance Commission (EAC) and assigned to the EAC the responsibility for both setting voting system standards and providing for the voluntary testing and certification of voting systems. This mandate represented the first time the Federal government provided for the voluntary testing, certification, and decertification of voting systems nationwide. In response to this HAVA requirement, the EAC has developed the voting system standards in the form of the Voluntary Voting System Guidelines (VVSG), a voting system certification program in the form of the Voting System Testing and Certification Program Manual and this document, the Voting System Test Laboratory Manual.

1.2. Authority. HAVA Section 231(b) (42 U.S.C. Sec. 15371(b)) requires that the EAC provide for the accreditation and revocation of accreditation of independent, nonfederal laboratories qualified to test voting systems to Federal standards. Generally, the EAC considers for accreditation those laboratories evaluated and recommend by the National Institute of Standards and Technology (NIST) pursuant to HAVA Section 231(b)(1). However, consistent with HAVA Section 231(b)(2)(B), the Commission may also vote to accredit laboratories outside of those recommended by NIST upon publication of an explanation of the reason for any such accreditation.

1.3. Role of the National Institute of Standards and Technology. Section 231(b) (1) of HAVA requires that the National Institute of Standards and Technology ``conduct an evaluation of independent, non federal laboratories and shall submit to the Commission a list of those laboratories * * * to be accredited. * * *'' Additionally, HAVA Section 231(c) requires NIST to monitor
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and review the performance of EAC accredited laboratories. NIST has chosen its National Voluntary Laboratory Accreditation Program (NVLAP) to carry out these duties. NVLAP conducts a review of applicant laboratories in order to provide a measure of confidence that such laboratories are capable of performing testing of voting systems to Federal standards. Additionally, the NVLAP program monitors laboratories by requiring regular assessments. Laboratories are reviewed one year after their initial accreditation and biennially thereafter. The EAC has made NVLAP accreditation a requirement of its Laboratory Accreditation Program. However, a NVLAP accreditation is not an EAC accreditation. EAC is the sole Federal authority for the accreditation and revocation of accreditation of Voting System Test Laboratories (VSTL).

1.4. Scope. This Manual provides the procedural requirements of the EAC voting system Laboratory Accreditation Program. Although participation in the program is voluntary, adherence to the program's procedural requirements is mandatory for participants. The procedural requirements of this Manual supersede any prior laboratory accreditation requirements issued by the EAC. This manual shall be read in conjunction with the EAC Voting System Testing and Certification Manual.

1.5. Manual Maintenance and Revision. The Manual will be reviewed periodically and updated to meet the needs of the EAC, VSTLs, election officials, and public policy. The EAC is responsible for revising this document. All revisions will be made consistent with Federal law. Substantive input from stakeholders and the public will be sought whenever possible. Changes in policy requiring immediate implementation will be noticed via policy memoranda and will be issued to each VSTL and registered Manufacturers. Changes, addendums, or updated versions will also be posted to the EAC Web site at www.eac.gov.

1.6. Clarification of Program Requirements and Procedures. VSTLs and registered Manufacturers may request clarification regarding the requirements and procedures set forth in this manual. Requests for clarification must be based upon ambiguity arising from the application of this manual. Hypothetical questions will not be considered. Requests shall be submitted to the Program Director in writing. The request shall clearly identify the section of the manual and issue to be clarified, a proposed interpretation and all relevant facts. Clarifications issued by the EAC will be provided to all EAC VSTLs, registered Manufacturers and placed on EAC's Web site.

1.7. Program Personnel. All EAC personnel and contractors associated with this program will be held to the highest ethical standards. All agents of the EAC involved in the Accreditation Program will be subject to conflictofinterest reporting and review, consistent with Federal law and regulation.

1.8. Submission of Documents. Any documents submitted pursuant to the requirements of this Manual shall be submitted:

1.8.1. If sent electronically, via secure email or physical delivery of a compact disk, unless otherwise specified. The submitted electronic files shall be in Microsoft Word or Adobe PDF format, formatted to protect the document from alteration.

1.8.2. With a proper signature when required by this Manual. Documents that require an authorized signature may be signed with an electronic representation or image of the signature of an authorized management representative.

1.8.3. If sent via physical delivery, by Certified Mail ^TM (or similar means that allows tracking) to the following address: Testing and Certification Program Director, U.S. Election Assistance Commission, 1225 New York Avenue, NW., Suite 1100, Washington, D.C. 20005.

1.9. Receipt of DocumentsVSTL. For purposes of this Manual, a document, notice, or other communication is considered received by a VSTL upon one of the following:

1.9.1. The actual, documented date the correspondence was received (either electronically or physically) at the VSTL, or

1.9.2. If no documentation of the actual delivery date exists, the date of constructive receipt of the communication. For electronic correspondence, documents will be constructively received the day after the date sent. For mail correspondence, the document will be constructively received 3 days after the date sent.

1.9.3. The term ``receipt'' shall mean the date a document or correspondence arrives (either electronically or physically) at the VSTL's place of business. Arrival does not require that an agent of the VSTL open, read, or review the correspondence.

1.10. Receipt of DocumentsEAC. For purposes of this Manual, a document, notice, or other communication is considered received by the EAC upon its physical or electronic arrival at the agency. All documents received by the agency will be physically or electronically date stamped. This stamp shall serve as the date of receipt. Documents received after the regular business day (5:00 PM Eastern Standard Time), will be treated as if received on the next business day.

1.11. Record RetentionEAC. The EAC shall retain all records associated with accreditation of Voting System Test Laboratories. The records shall otherwise be retained or disposed of consistent with Federal statutes and regulations.

1.12. Publication and Release of Documents. The EAC will release documents consistent with the requirements of Federal law. It is EAC policy to make the laboratory accreditation process as open and public as possible. Any documents (or portions thereof) submitted under this program will be made available to the public unless specifically protected from release by law. The primary means for making this information available is through the EAC Web site. See Chapter 7 of this Manual for additional information.

1.13. References. The following documents are referenced in this Manual. For dated references, only the edition cited applies. For undated references, the latest edition of the referenced document (including any amendments) applies.
ISO/IEC 17011, Conformity assessmentGeneral requirements for accreditation bodies accrediting conformity assessment bodies. ISO/IEC 17025, General requirements for the competence of testing and calibration laboratories.
NIST Handbook 150, (NVLAP) Procedures and General Requirements. NIST Handbook 15022, (NVLAP) Voting System Testing.

1.14. Definitions. For purposes of this Manual, the terms listed below have the following definitions.

Applicant Laboratory. An independent, nonFederal laboratory which has applied for EAC accreditation after receipt of an invitation.

Commission. The U.S. Election Assistance Commission, as an agency.

Commissioners. The serving commissioners of the U.S. Election Assistance Commission.

Contracted Third Party Laboratory. A laboratory contracted or otherwise providing testing services to a VSTL to meet program requirements.

Days. Calendar days, unless otherwise noted. When counting days, for the purpose of submitting or receiving a document, the count shall begin on the first full calendar day after the date the document was received.

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Election Official. A State or local government employee who has as one of his or her primary duties the management or administration of a Federal election.

Federal Election. Any primary, general, runoff, or special Election in which a candidate for Federal office (President, Senator, or Representative) appears on the ballot.

Fielded Voting System. A voting system purchased or leased by a State or local government that is being use in a Federal election.

Gift. A Gift includes any gratuity, favor, discount, entertainment, travel, service, hospitality, loan, meal, forbearance, or other item having monetary value.

Integration Testing. The endtoend testing of a full system configured for use in an election to assure that all legitimate configurations meet applicable standards.

Key Laboratory Staff. Laboratory employees serving as approval authorities of test reports (approved signatories per NIST Handbook 150) or otherwise responsible for the supervision of individuals performing voting system testing.

Lead Voting System Test Laboratory. The accredited Voting System Test Laboratory identified on an EAC approved Application for Testing (EAC Voting System Testing and Certification Program Manual, Sec. 4.3, Certification Application).

Manufacturer. The entity with ownership and control over a voting system submitted for certification.

Memorandum for the Record. A written statement drafted to document an event or finding, without a specific addressee other than the pertinent file.

Proprietary Information. Commercial information or trade secrets protected from release under the Freedom of Information Act (FOIA) and the Trade Secrets Act.

Recommended Laboratory. A laboratory recommended for EAC accreditation by the Director of NIST after evaluation by NVLAP.

Scope of Accreditation. The version or versions of the Federal voting system standards (VSS or VVSG) to which a VSTL is authorized to test.

Technical Reviewers. Technical experts in the areas of voting system technology and conformity assessment appointed by the EAC to provide expert guidance.

Testing and Certification Decision Authority. The EAC Executive Director or Acting Executive Director.

Testing and Certification Program Director. The individual appointed by the EAC Executive Director to administer and manage the Testing and Certification Program.

Voting System. The total combination of mechanical, electromechanical, and electronic equipment (including the software, firmware, and documentation required to program, control, and support the equipment) that is used to define ballots, cast and count votes, report or display election results, interface the voting system to the voter registration system, and maintain and produce any audit trail information.

Voting System Standards. Voluntary voting system standards developed by the FEC. Voting System Standards have been published twice: once in 1990 and again in 2002. The Help America Vote Act made the 2002 Voting System Standards EAC guidance. All new voting system standards are issued by the EAC as Voluntary Voting System Guidelines.

Voting System Test Laboratories (VSTLs). Laboratories accredited by the EAC to test voting systems to EAC approved voting system standards.

Voluntary Voting System Guidelines. Voluntary voting system standards developed, adopted, and published by the EAC. The guidelines are identified by version number and date.

1.15. Acronyms and Abbreviations. For purposes of this Manual, the acronyms and abbreviations listed below represent the following terms.

Accreditation Program. The EAC Voting System Test Laboratory Accreditation Program

Certification Program. The EAC Voting System Testing and Certification Program

EAC. United States Election Assistance Commission

FEC. Federal Election Commission

HAVA. Help America Vote Act of 2002 (42 U.S.C. Sec. 15301 et seq.)

ISO/IEC. The International Organization for Standardization & The International Electrotechnical Commission

NASED. National Association of State Election Directors

NIST. National Institute of Standards and Technology

NVLAP. National Voluntary Laboratory Accreditation Program

Program Director. Director of the EAC Testing and Certification Program

VSS. Voting System Standards

VSTL. Voting System Test Laboratory

VVSG. Voluntary Voting System Guidelines

2. Program Requirements

2.1. Overview. This chapter lists the requirements of the EAC's Voting System Test Laboratory Program. Adherence to these requirements is a condition of accreditation and a continuing obligation. Failure to demonstrate compliance with the requirements of this chapter may result in the denial of an application for accreditation, suspension of accreditation, or revocation of accreditation.

2.2. Program RequirementsGenerally. In order to be considered for, receive, and maintain an EAC accreditation as a VSTL, laboratories must demonstrate compliance with the requirements of EAC's Voting System Test Laboratory Program. The program requirements are set forth in this Chapter.

2.2.1. Continuing Compliance Obligation. VSTLs have a continuing obligation to meet the requirements set forth in this Chapter. VSTLs are required to maintain their compliance with the program's requirements as long as they hold an EAC accreditation.

2.2.2. Requests to Document Compliance. VSTLs may be required by the EAC to document compliance at any time. Such requests will be in writing and VSTLs shall respond timely, consistent with the request (see Chapter 4 of this Manual).

2.2.3. Failure to Comply, Effect. Failure to meet each of the program's requirements may result in the denial of an application for accreditation, suspension of accreditation, or revocation of accreditation, consistent with the procedures of Chapter 5 of this Manual.

2.3. NIST Recommendation. As a condition of accreditation, all laboratories must be recommended to the EAC by the National Institute of Standards and Technology (NIST), unless the emergency provisions of Chapter 3 apply. NIST is responsible, pursuant to the Help America Vote Act of 2002, Section 231(b), for performing a technical evaluation of laboratories and identifying and recommending those competent to test voting systems. This recommendation is provided directly to the EAC from NIST.

2.4. NVLAP Accreditation. As a condition of accreditation, all VSTLs must hold a valid accreditation from NIST's National Voluntary Laboratory Accreditation Program (NVLAP), unless the emergency provisions of Chapter 3 apply. NVLAP accreditation is the primary means by which the EAC may ensure that each VSTL meets and continues to meet the technical requirements of the EAC program. It sets the standards for each of VSTL's technical, physical, and personnel resources, as well as its testing, management, and quality assurance policies and protocols. The loss or
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suspension of a NVLAP accreditation will result in the suspension and possible revocation of any EAC accreditation consistent with the procedures of Chapter 5 of this Manual. VSTLs are required to immediately report any change in their NVLAP accreditation status to the EAC.

2.5. Conflict of Interest and Prohibited Practices Program. As a condition of accreditation, all laboratories must maintain and enforce policies which prohibit and prevent conflicts of interest or the appearance of conflicts of interest. A laboratory shall ensure that neither the Laboratory, its parent corporation, contracted third party laboratories, nor any individual staff member involved in the testing of voting systems have any vested interest in the outcome of the test process. Laboratories must have a written policy in place. This policy must, at a minimum, (1) prohibit conflicts of interest and other prohibited practices and (2) provide for enforcement, consistent with the subsections below.

2.5.1. Prohibited Conflicts of Interest. The purpose of a conflict of interest policy is to prevent situations where the exercise of an official duty directly impacts the actor's financial interests. For the purposes of this program, a prohibited conflict of interest exists if the duties and responsibilities of a laboratory, parent corporation, or a laboratory employee involved in the testing of voting systems under EAC's Certification Program will have a direct and predictable effect on the financial interest of that laboratory, parent corporation, or a laboratory employee.\1\ For example, an employee who is responsible for testing a voting system on behalf of a VSTL would be prohibited from holding a financial interest in the entity whose product is being tested or a direct competitor of that entity. A prohibited conflict of interest would also include a contractual or other fiduciary relationship between a VSTL or VSTL employee and a Manufacturer (outside an agreement for State or Federal certification testing) when that VSTL or VSTL employee is concurrently responsible for conducting certification testing for that Manufacturer under this program. Additionally, financial interests may be imputed or attributed to a laboratory, parent corporation, or a laboratory employee through a relationship with a third party. For example, a VSTL employee responsible for the testing of a voting system would be conflicted from performing his or her duties if his or her spouse owned a financial interest in the manufacture of the voting system.
\1\ For the purpose of this Program, agreements with voting system manufacturers to provide testing pursuant to the requirements of EAC or a State's certification program do not constitute a prohibited conflict of interest. Certification testing is considered a duty and responsibility of a VSTL, not an outside financial interest.

2.5.1.1. Involved in TestingDefined. For the purposes of a financial conflict of interest, an organization is involved in the testing of a voting system any time it contractually or otherwise takes on the responsibility for testing a voting system to Federal standards under EAC's Certification Program. For the purposes of a financial conflict of interest, an employee is involved in the testing of a voting system when the individual's duties as a VSTL employee require him or her to perform testing on the system, manage the testing process or supervise those who perform testing on the system.

2.5.1.2. Financial InterestDefined. The term includes any current or contingent ownership, equity, or security interest in real or personal property or a business and may include an indebtedness or compensated employment relationship. It thus includes, for example, interests in the nature of stocks, bonds, partnership interests, fee and leasehold interests, and other property rights, deeds of trust, and liens, and extends to any right to purchase or acquire any such interest, such as a stock option or commodity future.

2.5.1.3. Direct EffectDefined. A matter will have a direct effect on a financial interest if there is a close causal link between any decision or action to be taken in the matter and any expected effect of the matter on the financial interest. An effect may be direct even though it does not occur immediately. A matter will not have a direct effect on a financial interest, however, if the chain of causation is attenuated or is contingent upon the occurrence of events that are speculative or that are independent of, and unrelated to, the matter. A matter that has an effect on a financial interest only as a consequence of its effects on the general economy does not have a direct effect within the meaning of this section.

2.5.1.4. Predictable EffectDefined. A matter will have a predictable effect if there is a real, as opposed to a speculative possibility that the matter will affect the financial interest. It is not necessary, however, that the magnitude of the gain or loss be known, and the dollar amount of the gain or loss is immaterial.

2.5.1.5. Imputed InterestsDefined. An imputed interest is a financial interest held by a third party individual or organization that serves to disqualify an employee or laboratory to the same extent as if they were the employee's or laboratory's own interest. These interests include:

2.5.1.5.1. The financial interests of a spouse or dependent child shall be imputed to an employee.

2.5.1.5.2. The financial interest of any organization in which a laboratory, parent corporation, or a laboratory employee serves as an employee, officer, board member, partner, consultant, director, trustee or similar position shall be imputed.

2.5.1.5.3. The interests of any contracted third party laboratory shall be imputed to the utilizing VSTL.

2.5.1.5.4. The financial interest of a person or organization with whom an employee is negotiating or has an arrangement concerning prospective employment shall be imputed.

2.5.2. Prohibited Practices. Furthermore, irrespective of the existence of a conflict of interest, it is a prohibited practice for a laboratory, parent corporation, or laboratory employee to be involved in the development of a voting system or solicit or receive a gift from a voting system Manufacturer. No laboratory, parent corporation, or laboratory employee may:

2.5.2.1. Voting System Development and Testing. Provide, or have provided, consultation, developmental testing or other services to a voting system developer such that the independence, or appearance of independence, in the testing of a particular voting system or system component would be compromised.

2.5.2.1.1. A laboratory or individual may not be involved in both the development of a voting system and the certification of a system. Voting system development includes any testing, consultation or design work performed in order to ready a specific system for the marketplace or the certification process. Generally, any testing performed on behalf of a voting system manufacture that was not otherwise performed pursuant to a State or Federal voting system certification program will be considered developmental in nature.

2.5.2.1.2. The prohibition barring participation in both development and testing is voting system specific. An employee or laboratory that was previously involved \2\ in product development with a Manufacturer is not
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prohibited from testing all systems produced by that Manufacturer, just those systems in which the employee or laboratory participated directly in development. As voting systems are subject to change over time, for the purposes of this prohibition, a voting system shall be considered altered to the degree that it is a different system when:
\2\ The prohibition relates to a VSTL's prior involvement in system development. Concurrent development work and testing may constitute a prohibited conflict of interest under Section 2.5.2 of this Manual.

2.5.2.1.2.1. A period of at least three years has passed since the VSTL or employee was involved in the system's development;

2.5.2.1.2.2. The system has been subject to both software and hardware modification since the VSTL or employee was involved in the system's development. De minimis changes (as defined in EAC Voting System Testing and Certification Program Manual) are not modifications; AND

2.5.2.1.2.3. The system has received a certification after being tested by a different independent laboratory since the VSTL or employee was involved in the system's development.

2.5.2.1.3. The prohibition barring participation in both development and testing does not prohibit a VSTL from allowing a Manufacturer to perform onsite hardware mitigation on a voting system in response to a minor system failure or anomaly. In such cases the

FOR FURTHER INFORMATION CONTACT Brian Hancock, Director, Voting System Certification, Washington, DC, (202) 5663100, Fax: (202) 5661392.