Candidate Travel, 59953-59967 [E7-20901]
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59953
Proposed Rules
Federal Register
Vol. 72, No. 204
Tuesday, October 23, 2007
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
FEDERAL ELECTION COMMISSION
11 CFR Parts 100, 113, 9004, and 9034
[Notice 2007–20]
Candidate Travel
Federal Election Commission.
Notice of proposed rulemaking.
AGENCY:
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ACTION:
SUMMARY: The Federal Election
Commission requests comments on
proposed changes to its rules
implementing new statutory provisions
governing the rates and timing of
payment for non-commercial campaign
travel on aircraft, and a proposed
definition of ‘‘Leadership PAC.’’ These
proposed changes, consistent with the
new statutory provisions, would restrict
and in some cases prohibit Federal
candidates and their political
committees from expending campaign
funds for non-commercial air travel. The
proposed rules would apply to all
Federal candidates, including publicly
funded presidential candidates. No final
decisions have been made by the
Commission on any of the proposed
revisions in this Notice. Further
information is provided in the
supplementary information that follows.
DATES: Comments must be received on
or before November 13, 2007. The
Commission will hold a hearing on
these proposed rules on November 15,
2007, at 10 a.m. Commenters wishing to
testify at the hearing must so indicate in
their written or electronic comments.
Anyone seeking to testify at the hearing
must file written comments by the due
date and must include a request to
testify in the written comments.
ADDRESSES: All comments must be in
writing, must be addressed to Ms. Amy
L. Rothstein, Assistant General Counsel,
and must be submitted in e-mail,
facsimile, or paper copy form.
Commenters are strongly encouraged to
submit comments by e-mail or fax to
ensure timely receipt and consideration.
E-mail comments must be sent to
travel07@fec.gov. If e-mail comments
include an attachment, the attachment
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must be in Adobe Acrobat (.pdf) or
Microsoft Word (.doc) format. Faxed
comments must be sent to (202) 219–
3923, with paper copy follow-up. Paper
comments and paper copy follow-up of
faxed comments must be sent to the
Federal Election Commission, 999 E
Street, NW., Washington, DC 20463. All
comments must include the full name
and postal service address of the
commenter or they will not be
considered. The Commission will post
comments on its Web site after the
comment period ends. The Commission
hearing on this rulemaking will be held
in the Commission’s ninth floor meeting
room, 999 E Street, NW., Washington,
DC.
FOR FURTHER INFORMATION CONTACT: Ms.
Amy L. Rothstein, Assistant General
Counsel, Mr. Joshua S. Blume, Attorney,
or Mr. Richard Ewell, Attorney, 999 E
Street, NW., Washington, DC 20463,
(202) 694–1650 or (800) 424–9530.
SUPPLEMENTARY INFORMATION: The
Commission is proposing changes to its
rules to implement section 601 of Pub.
L. 110–81, 121 Stat. 735, the ‘‘Honest
Leadership and Open Government Act
of 2007,’’ signed September 14, 2007.
The new law amended the Federal
Election Campaign Act of 1971, as
amended (2 U.S.C. 431 et seq.) (‘‘the
Act’’) by restricting, and in some cases
prohibiting, the expenditure of
campaign funds by candidates for
Federal office for non-commercial travel
aboard aircraft. See 2 U.S.C. 439a(c)
(henceforth referred to as ‘‘new 2 U.S.C.
439a(c)’’ or ‘‘the new law’’).
The Commission proposes to
implement these new provisions by
adding new section 11 CFR 113.5 to Part
113, which governs the expenditure of
campaign funds by candidates for
Federal office and their authorized
political committees. In addition, the
Commission is proposing conforming
revisions to 11 CFR 100.93, which
provides an exception to the definition
of ‘‘contribution’’ for non-commercial
travel aboard aircraft by, or on behalf of,
Federal candidates and political
committees, if the candidates and
political committees reimburse the
service providers at specified rates.
With respect to the scope of the
proposed changes, the Commission
presents two alternatives. Under
Alternative 1, the proposed changes
would also affect travel by other
persons, such as a staff member of a
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political party committee, separate
segregated fund (‘‘SSF’’), or
nonconnected political committee, if
they are not traveling on behalf of a
specific candidate. Under Alternative 2,
the proposed changes would affect only
candidates for Federal office and those
traveling on behalf of a candidate for
Federal office and his or her authorized
committee. The proposed changes
would not alter the Commission’s
treatment of travel by means of
transportation other than aircraft, or on
travel aboard commercial airliners or
charter flights.
In addition, Congress defined the term
‘‘Leadership PAC’’ in section 204(8)(B)
of Public Law 110–81. This type of
political committee is subject to certain
restrictions under the provisions of new
2 U.S.C. 439a(c), and is also subject to
certain requirements set forth in another
section of Public Law 110–81 pertaining
to the practice of ‘‘bundling’’
contributions. See section 204 of Public
Law 110–81. The Commission is
therefore proposing that the term be
defined in the Commission’s regulations
at 11 CFR 100.5(e) (examples of
‘‘political committees’’).1
I. Background
A. The Current Statutory and Regulatory
Framework
The Act defines a ‘‘contribution’’ to
include ‘‘any gift, subscription, loan,
advance, or deposit of money or
anything of value made by any person
for the purpose of influencing any
election for Federal office.’’ 2 U.S.C.
431(8)(A)(i); see also 11 CFR 100.52(a).
The phrase ‘‘anything of value’’
encompasses ‘‘the provision of any
goods or services without charge or at a
charge that is less than the usual and
normal charge for such goods or
services.’’ 11 CFR 100.52(d)(1). When
goods or services are provided at less
than the usual and normal charge, ‘‘the
amount of the in-kind contribution is
the difference between the usual and
normal charge for the goods or services
at the time of the contribution and the
amount charged the political
committee.’’ Id.
As a result, candidates who travel
aboard a commercial airliner or other
conveyance for which a fee is normally
1 The Commission is initiating a separate
rulemaking to address the bundling provisions of
the new law and intends to issue a Notice of
Proposed Rulemaking shortly.
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charged must pay the normal and usual
charge for that service in order to avoid
receiving an in-kind contribution from
the person providing the travel service.
Such in-kind contributions would be
prohibited if provided by certain
entities, including corporations, labor
organizations, Federal contractors, and
foreign nationals. See 2 U.S.C. 441b,
441c, and 441e; 11 CFR 110.20, 114.2(b),
and 115.2. Even where the in-kind
contributions are not prohibited, they
would be subject to the contribution
limits in the Act and Commission
regulations. See 2 U.S.C. 441a through
441k; 11 CFR Parts 110, 114, and 115.
1. Current 11 CFR 100.93—Payment for
Non-Commercial Travel
The normal and usual charge for
travel aboard a commercial airliner is
the publicly available price for a ticket,
and the normal and usual charge for a
chartered jet is the publicly available
charter or lease rate. The normal and
usual charge for travel aboard a noncommercial flight, however, may not be
as apparent. For example, there is
generally not a ticket price for a seat
aboard a corporate jet that is operated
exclusively for the private travel of the
corporation’s executives and their
guests. Because candidates for Federal
office have traveled in the past on these
privately operated flights, the
Commission has provided specific
guidance in its regulations regarding the
rate of reimbursement that candidates
and others must pay to avoid receiving
an in-kind contribution for travel aboard
such flights.
On December 15, 2003, the
Commission promulgated final rules
adding 11 CFR 100.93. See Final Rules
and Explanation and Justification for
Travel on Behalf of Candidates and
Political Committees, 68 FR 69,583 (Dec.
15, 2003) (‘‘2003 E&J’’). Those final rules
established an exception from the
definition of contribution for payments
at specified rates for non-commercial
travel in connection with a Federal
election. The payment required for noncommercial air travel by ‘‘campaign
travelers’’—a term that includes
individuals traveling in connection with
elections for Federal office on behalf of
candidates or political committees, and
members of the news media traveling
with a candidate—depends on whether
the travel is between cities served by
regularly scheduled commercial airline
service, and whether that service is
available at a first-class or coach rate.
See 11 CFR 100.93(a)(3)(i) and
100.93(c). If travel between the origin
and destination cities is regularly served
by commercial first-class airline service,
then a first-class rate applies. 11 CFR
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100.93(c)(1). If such travel is served at
both origin and destination by coachclass commercial service and the origin
city is not served by first-class service,
then a coach-class rate applies. 11 CFR
100.93(c)(2). If either the origin or the
destination city is not served by
commercial airline service, then the rate
is the normal and usual charter fare for
a comparable airplane sufficient in size
to accommodate all campaign travelers.
11 CFR 100.93(c)(3). The same rates
apply to travel on an airplane provided
by a government entity, unless the travel
is to or from a military base or other
relatively publicly inaccessible
location.2 The candidate or political
committee responsible for the
reimbursement must pay the service
provider within seven business days of
the trip. 11 CFR 100.93(c).
2. Current 11 CFR 9004.7 and 9034.7—
Travel by Presidential and VicePresidential Candidates Accepting
Public Funds
Candidates for President of the United
States may elect to receive matching
funds from the Federal government to
contest their primary elections and
presidential nominees may elect to
receive public funding to contest the
general election. In both cases, the
candidates must agree, among other
things, to use the public funds they
receive solely for ‘‘qualified campaign
expenses’’ and not to exceed specified
expenditure limits. 2 U.S.C.
441a(b)(1)(A) and (B), 26 U.S.C.
9004(c)(1), 9038(b)(2).
The Commission has promulgated
separate regulations at 11 CFR
9004.7(b)(5)(i) and (v), (b)(8), and
9034.7(b)(5)(i) and (v) and (b)(8), setting
forth the appropriate reimbursement
rates that publicly funded candidates
must use for campaign-related travel on
non-commercial transportation. While
11 CFR 100.93 is focused on the
potential underpayment for travel
resulting in a contribution, 11 CFR
9004.7 and 9034.7 are focused on the
appropriate use of public funds, and
thus on whether, and to what extent,
expenses for campaign-related travel
constitute qualified campaign expenses
for which the candidate may use public
funds. The rates and recordkeeping
requirements for presidential and vicepresidential candidates accepting public
funds are the same as those in 11 CFR
100.93 and are mainly set forth through
cross-references to 11 CFR 100.93.
2 If such is the case, then a first-class rate applies,
drawn from the closest city with regular first-class
commercial service. 11 CFR 100.93(e)(1).
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II. Revisions to 2 U.S.C. 439a—Use of
Campaign Funds
New 2 U.S.C. 439a(c) prohibits House,
Senate, and presidential candidates
from making any expenditure for noncommercial travel on aircraft except at
specified rates and subject to certain
conditions. An ‘‘expenditure’’ includes
any payment by any person ‘‘made for
the purpose of influencing any election
for Federal office.’’ 2 U.S.C. 431(9)(A)(i).
Like the current regulations at 11 CFR
100.93, the new law focuses on the
appropriate reimbursement rates for
non-commercial travel. Travel on
commercial flights is still governed by
the current requirements for
reimbursement at the normal and usual
charge. The new law, however, directly
limits expenditures by a candidate,
candidate’s authorized committee, or a
leadership PAC, rather than merely
specifying how to avoid the receipt of
an in-kind contribution as in 11 CFR
100.93.
The new law’s rates and conditions
under which candidates may spend
campaign funds for aircraft travel differ
depending on the office sought.
Presidential and Senate candidates may
pay for their pro rata share of the fair
market value of a flight, which is
determined by dividing the fair market
value of the normal and usual charter
fare or rental charge for a comparable
plane of comparable size by the number
of candidates on board the plane. 2
U.S.C. 439a(c)(1). The authorized
committees and leadership PACs of
House candidates are, however,
generally prohibited from using any
campaign funds to pay for noncommercial flights, except for flights on
aircraft operated by a Federal or State
government entity. 2 U.S.C. 439a(c)(2).
Aircraft owned by candidates or their
immediate family members are exempt
from the prohibitions and rate
requirements described above. 2 U.S.C.
439a(c)(3).
III. Proposed 11 CFR 100.5(e)(6)—
Definition of ‘‘Leadership PAC’’
The term ‘‘Leadership PAC’’ is
defined in section 204(a) of Public Law
110–81 (2 U.S.C. 434(i)(8)(B)) as ‘‘a
political committee that is directly or
indirectly established, financed,
maintained or controlled by [a]
candidate [for Federal office] or [an]
individual [holding Federal office] but
which is not an authorized committee of
the candidate or individual and which
is not affiliated with an authorized
committee of the candidate or
individual, except that such term does
not include a political committee of a
political party.’’ The term ‘‘PAC’’ is an
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acronym for ‘‘political action
committee,’’ which is a term generally
used to refer to all political committees
other than authorized committees and
committees of a political party.3
The new definition of leadership PAC
is relevant to two areas of the new law
that fall within the Commission’s
purview: (1) The new restrictions on
candidate travel that would be
implemented through both proposed
sections 11 CFR 100.93 and 113.5, and
(2) the disclosure requirements in
Section 204 of the new law for
contributions bundled by lobbyists. In
the provision relevant to this
rulemaking, the new law generally
prohibits ‘‘candidates for election for
the office of Representative in, or
Delegate or Resident Commissioner to,
the Congress, an authorized committee
and a leadership PAC’’ from making
expenditures for non-commercial air
travel. Public Law 110–81, section
601(a) (codified at 2 U.S.C 439a(c)(2))
(emphasis added).
The Commission proposes to
incorporate a definition of ‘‘leadership
PAC’’ into 11 CFR 100.5, which is the
general definition of ‘‘political
committee.’’ Specifically, ‘‘leadership
PAC’’ would be added to the list of
different types of political committees
in 11 CFR 100.5(e), with the new term
added at 11 CFR 100.5(e)(6). The
proposed definition mirrors the
definition in the new law.
The Commission proposes to
incorporate the definition of ‘‘leadership
PAC’’ into the general definition section
in 11 CFR Part 100, rather than within
the travel rules themselves, to promote
consistency and economy within the
structure of its regulations.
The definition will impact several
sections of the Commission’s
regulations, including proposed 11 CFR
100.93, 11 CFR 113.5, and the new
bundling regulations the Commission
intends to promulgate in a separate
rulemaking. The Commission seeks
comments on the content and placement
of this new definition.
IV. Proposed Revisions to 11 CFR
100.93—Payment for Travel Aboard
Aircraft and Other Means of
Transportation
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The majority of the Commission’s
current guidance regarding non3 The
term ‘‘PAC’’ has not been a term of art in
the law or in Commission regulations. PACs
sponsored by a corporation or a labor organization
are generally described in the Commission’s
regulations as separate segregated funds (‘‘SSFs’’).
See 2 U.S.C. 441b(b)(2)(C); 11 CFR 100.5(b). PACs
that lack corporate or labor sponsorship are referred
to in the regulations as ‘‘nonconnected
committees.’’ See, e.g., 11 CFR 104.10 and 106.6(a).
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commercial air travel is provided in 11
CFR 100.93, which provides an
exception to the definition of
‘‘contribution’’ for non-commercial
travel if the service provider is
reimbursed for the travel at the specified
rates. Several of the reimbursement rates
permitted under current 11 CFR 100.93
are inconsistent with the new statutory
requirements. For example, the statute
requires a candidate for President or
U.S. Senate to reimburse the service
provider at the comparable charter rate,
whereas current 11 CFR 100.93 allows
reimbursement at the rate of the first
class or coach airfare for campaign
travel between two cities served by
regularly scheduled commercial airline
service. Therefore, the Commission is
proposing conforming changes and
clarifications in 11 CFR 100.93.
The Commission wishes to clarify
that, although it is proposing changes to
only some of the provisions in 11 CFR
100.93, it may make further revisions to
this section in its final rules, in response
to any public comments and additional
information that it may receive
regarding the proposed rules. The
Commission therefore invites comments
on the entirety of 11 CFR 100.93 and is
opening the entire section for comments
through this Notice of Proposed
Rulemaking. Commenters favoring
retention of current provisions of 11
CFR 100.93 should submit comments to
that effect. Conversely, those preferring
additional changes to 11 CFR 100.93
beyond those proposed should submit
comments to that effect. In particular,
the Commission seeks comments on the
extent to which new 2 U.S.C. 439a(c)
should be implemented solely through
revisions to 11 CFR 100.93, rather than
through the addition of 11 CFR 113.5.
a. General Scope of Rule—Travel on
Behalf of Candidates
New 2 U.S.C. 439a specifies that ‘‘a
candidate for election for Federal office
* * * or any authorized committee of
such a candidate, may not make any
expenditure for a flight on an aircraft
unless—* * *’’ 2 U.S.C. 439a(c)(1)
(emphasis added). Given the inclusion
of authorized committees in this
language, the proposed rule, consistent
with the current rule, would apply to
the same range of individuals covered
by the term ‘‘campaign traveler’’ in the
current rule. Campaign traveler is
defined in part as ‘‘any individual
traveling in connection with an election
for Federal office on behalf of a
candidate.’’ 11 CFR 100.93(3)(i)(A). In
other words, the proposed rule would
apply to travel by candidates
themselves, and also those traveling on
behalf of candidates or their authorized
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committees, such as campaign staff. See
proposed 11 CFR 100.93(c)(1).
This interpretation is also consistent
with the personal use prohibitions set
out by Congress in 2 U.S.C. 439a(b) and
the Commission’s regulatory
interpretation of that section, which
apply to personal use by ‘‘any person.’’
See, e.g., 11 CFR 113.1(g) (defining
personal use as ‘‘any use of funds in a
campaign account of a present or former
candidate to fulfill a commitment,
obligation or expense of any person that
would exist irrespective of the
candidate’s campaign or duties as a
Federal officeholder’’) (emphasis
added); see also Explanation and
Justification for final rules regarding
Expenditures; Reports by Political
Committees; Personal Use of Campaign
Funds, 60 FR 7862, 7864 (Feb. 9, 1995)
(‘‘Section 439a states that no campaign
funds ‘may be converted by any person
to any personal use.’ ’’). Thus, any use
of campaign funds that would exist
irrespective of the campaign or the
duties of a Federal officeholder is
personal use under current Commission
regulations, regardless of whether the
beneficiary is the candidate, a family
member of the candidate, or some other
person.
Moreover, the Commission notes that
Congress, in its amendments to the
Senate rules, set out an approach to
reimbursement for non-campaign travel
that includes all Congressional staff, not
just the Federal officeholders
themselves. That amendment requires
reimbursement for non-commercial
travel aboard aircraft at the normal and
usual charter rate for a comparable
aircraft of comparable size, ‘‘as
determined by dividing such cost by the
number of Members, officers, or
employees of Congress on the flight.’’
Public Law 110–81, Section 544(c)(1),
amending Paragraph 1(c)(1) of rule
XXXV of the Standing Rules of the
Senate (emphasis added).
The Commission seeks comments on
this proposed interpretation of the new
law. Is there any evidence that suggests
that Congress intended to exclude
campaign staff, or others traveling on
the candidate’s behalf, from the general
scope of the rule?
A. Proposed 100.93(a)—Scope and
Definitions
1. Proposed 11 CFR 100.93(a)(3)(i)—
Definition of ‘‘Campaign Traveler’’
A ‘‘campaign traveler’’ is defined as
‘‘[a]ny individual traveling in
connection with an election for Federal
office on behalf of a candidate or
political committee’’ and ‘‘[a]ny member
of the news media traveling with a
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candidate.’’ 11 CFR 100.93(a)(3)(i). The
Commission proposes to add ‘‘Any
candidate for Federal office or’’ at the
beginning of that definition to clarify
that a candidate himself or herself
would be included within the definition
of ‘‘campaign traveler.’’ The
Commission seeks comments on this
proposed clarification and whether any
additional changes to the definition
would be appropriate.
2. Proposed 11 CFR 100.93(a)(3)(iv) and
(v)—Definitions of ‘‘Commercial Travel’’
and ‘‘Non-Commercial Travel’’
The Commission’s current regulations
distinguish between commercial and
non-commercial air travel based on the
certification system of the Federal
Aviation Administration (FAA).
Specifically, the Commission’s rules in
11 CFR 100.93 apply to all airplanes not
licensed by the FAA to operate for
compensation or hire under 14 CFR
parts 121, 129, or 135. 11 CFR
100.93(a)(1)(i).
The new law’s restrictions on
expenditures for air travel by
presidential and U.S. Senate candidates
are focused on the FAA’s certification
and safety requirements, but do not
reference specific FAA regulatory
provisions. In order to simplify and
align the Commission’s regulations with
the new statutory language, the
Commission is proposing to replace its
reliance on specific FAA regulatory
provisions with the new terms
‘‘commercial travel’’ and ‘‘noncommercial travel.’’ The definition of
‘‘commercial travel’’ would follow the
new statutory language: travel aboard an
aircraft ‘‘operated by an air carrier or
commercial operator certificated by the
Federal Aviation Administration if the
flight is required to be conducted under
air carrier safety rules, or, in the case of
travel which is abroad, by an air carrier
or commercial operator certificated by
an appropriate foreign civil aviation
authority if the flight is required to be
conducted under air carrier safety
rules.’’ Proposed 11 CFR
100.93(a)(3)(iv). Conversely, the
proposed definition of ‘‘non-commercial
air travel’’ would encompass travel not
included in the definition of
‘‘commercial travel.’’ Proposed 11 CFR
100.93(a)(3)(v).
The Commission seeks comments on
these proposed definitions. Is there any
difference between the universe of
aircraft encompassed by the new term
‘‘non-commercial travel’’ and the
aircraft included in current 11 CFR
100.93(c) (‘‘an airplane not licensed by
the Federal Aviation Administration to
operate for compensation or hire under
14 CFR parts 121, 129, or 135’’)? Would
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additional guidance in the form of
references to FAA regulatory provisions
be helpful in discerning what aircraft
qualify as ‘‘non-commercial travel,’’ or
is the proposed language sufficiently
clear? In addition, the Commission
seeks comments on whether additional
explanation should be provided to
address flights conducted in foreign
countries and, if so, what it should be.
The Commission also seeks comments
on whether the definitions of
‘‘commercial travel’’ and ‘‘noncommercial travel’’ should specifically
address more complex multiple
ownership or leasing arrangements,
such as arrangements in which some of
the owners of an aircraft are commercial
operators certificated by the FAA but
others are not.
B. Proposed 11 CFR 100.93(c)(1)—NonCommercial Air Travel by Candidates
for President, Vice-President, and U.S.
Senate
New 2 U.S.C. 439a(c)(1)(B) requires
candidates for President, Vice President,
and U.S. Senate to pay their ‘‘pro rata
share of the fair market value’’ of noncommercial flights aboard aircraft. The
pro rata share is ‘‘determined by
dividing the fair market value of the
normal and usual charter fare or rental
charge for a comparable plane of
comparable size by the number of
candidates on the flight.’’ Id. Because
the statutory language is specific that
the ‘‘number of candidates on the flight’’
determines the ‘‘pro rata share,’’ the
Commission proposes to define ‘‘pro
rata share of the fair market value of a
flight’’ based solely on the number of
candidates on the flight, regardless of
whether there are other campaign
travelers or passengers aboard.
Moreover, because the statutory
language applies to expenditures made
not only by candidates, but also by
authorized committees, the Commission
proposes to define ‘‘pro rata share’’
based on the number of candidates
represented on a flight. See proposed 11
CFR 100.93(c)(1) and (3). A candidate is
represented on a flight if a person is
traveling on behalf of that candidate, the
candidate’s authorized committee, or
the candidate’s leadership PAC.4 See
proposed 11 CFR 100.93(c)(1). This
reimbursement rate does not apply to
travel aboard government aircraft or
aircraft owned by a candidate or a
member of candidate’s immediate
family, which are covered under
proposed section 100.93(e) and (g),
respectively, and discussed below. See
subsections F and G of this section. This
4 See discussion of leadership PACs in subsection
E.4 of this section.
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reimbursement rate also would not
apply when a candidate or
representative of the candidate is
traveling on behalf of another committee
(such as a political party committee),
rather than on behalf of the candidate’s
own campaign. Reimbursement for a
candidate’s travel on behalf of another
committee is the responsibility of the
committee on whose behalf the travel
occurs, at the appropriate
reimbursement rate for that committee
as set forth in proposed 11 CFR
100.93(c).
1. Application of Proposed Rule
Candidate A, Candidate B, and
Candidate B’s campaign manager travel
on a plane on behalf of their respective
campaigns, along with PAC
Representative P traveling on behalf of
the PAC. The pro rata share of the fair
market value of the flight would be
determined by dividing the normal and
usual charter rate for the plane by two
because there are two candidates
represented on the flight (Candidate A
and B). Each candidate, or the
candidate’s authorized committee,
would therefore be required to pay 50%
of the charter rate to avoid receiving an
in-kind contribution from the noncommercial aircraft’s owner. Because
the full costs of the flight would be
reimbursed by the candidate travelers
(i.e., Candidate A and Candidate B), and
the candidate committees would fully
compensate the aircraft’s owner for the
costs of the flight, PAC Representative
P’s travel would not need to be
reimbursed. The Commission invites
comment on whether this result—PAC
Representative P traveling without
paying fair market value for the cost
associated with her travel—should be
treated as an in-kind contribution to the
PAC from one or more of the candidates
paying for the cost of the flight. If so,
what would the value be? If the value
of the travel by a non-candidate traveler
is a reportable expenditure by one or
more of the candidates when the noncandidate traveler is the representative
of a political committee, should the
expenditure also be a reportable
expenditure if the non-candidate
traveler is not a political committee
representative? Does it matter whether
the non-candidate traveler is traveling at
the invitation of one of the candidates
or at the invitation of the service
provider?
Repayment under the proposed rule
would not vary based on the number of
non-campaign travelers on the plane.
For example, Candidate A, Candidate B,
Candidate B’s campaign manager and
PAC Representative P travel on a
twenty-seat plane with six other
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passengers that are not campaign
travelers. Candidate A and Candidate B
would still be required to pay 50% each
of the entire normal and usual charter
fare or rental charge for a ‘‘comparable
plane’’ seating twenty passengers.
Because the candidate committees
would fully compensate the aircraft’s
owner for the costs of the flight, PAC
Representative P and the six additional
travelers would not be required to
provide reimbursement.
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2. Per Represented Committee
Alternative
As an alternative, the Commission
proposes requiring reimbursement
based on the number of represented
committees of any type, rather than the
number of represented candidates or
candidate committees. The Commission
proposes two variations of this
alternative.
(a) For example, Candidate A,
Candidate B, and Candidate B’s
campaign manager travel on a plane on
behalf of their respective campaigns,
along with PAC Representative P
traveling on behalf of the PAC. The pro
rata share of the fair market value of the
flight would be determined by dividing
the normal and usual charter rate for the
plane by three because there are three
represented committees on the flight
(Candidate A, Candidate B, and PAC).
Each committee would be required to
pay 33% of the charter rate to avoid
receiving an in-kind contribution from
the aircraft’s owner.
(b) Using the same hypothetical
situation set forth above, PAC
Representative P would then have the
option of paying either 33% of the
calculated charter rate, or the amount
that would be required under current 11
CFR 100.93.
3. Per Passenger Alternative
As an alternative, the Commission
proposes requiring reimbursement only
for the portion of the normal and usual
charter rate that reflects the number of
candidate representatives as a
percentage of all passengers on the
aircraft.
For example, Candidate A, Candidate
B, and Candidate B’s campaign manager
travel on a plane on behalf of their
respective campaigns, along with PAC
Representative P traveling on behalf of
the PAC. The pro rata share of the fair
market value of the flight would be
determined by dividing the normal and
usual charter rate for the plane by four
because there are four passengers on the
flight. Each passenger would therefore
be required to pay 1⁄4, or 25%, of the
charter rate to avoid receiving a
contribution. Candidate A and PAC,
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with one passenger each, would pay
25% each, while Candidate B, with two
passengers would be responsible for
50% of the charter rate.
Under this alternative, the repayment
would also vary based on the number of
non-campaign travelers on the plane.
For example, Candidate A, Candidate B,
Candidate B’s campaign manager, and
PAC Representative P travel on a
twenty-seat plane with six other
passengers who are not candidates or
are not traveling on behalf of
candidates. Because Candidate A was
only one passenger among ten,
Candidate A would be required to pay
10% of the normal and usual charter
fare or rental charge for a ‘‘comparable
plane’’ seating twenty passengers.
Candidate B, with two passengers,
would pay 20%, and PAC, with one
passenger, would pay 10%.
4. Comparable Aircraft Alternative
As a further alternative, the
Commission proposes to follow the
approach in its current regulations and
permit reimbursement at the normal and
usual charter rate or rental charge for an
aircraft of sufficient size to carry the
campaign travelers. See current 11 CFR
100.93(c)(3) (requiring reimbursement of
‘‘the normal and usual charter fare or
rental charge for a comparable
commercial airplane of sufficient size to
accommodate all campaign travelers’’).
Under this approach, the campaign
committee would be responsible for
paying the normal and usual charter rate
for a plane of sufficient size to seat its
campaign travelers, rather than the rate
for a plane comparable (in terms of
seating capacity) to the one flown. For
example, Candidate A, Candidate B,
Candidate B’s campaign manager, and
PAC Representative P travel on a
twenty-seat plane with six other
passengers who are not candidates and
are not traveling on behalf of
candidates. Under this approach,
Candidate A, Candidate B, Candidate
B’s campaign manager, and PAC
Representative P would collectively be
responsible for reimbursing the aircraft’s
owner an amount equivalent to the
normal and usual charter fare or rental
charge for a ‘‘comparable plane’’ that
could seat four passengers. Each
candidate or committee must pay its pro
rata share of that amount.
Under a variation of this alternative,
each campaign traveler would be
required to pay the normal and usual
charter fare or rental charge for a
‘‘comparable plane’’ able to
accommodate only himself and those
traveling on his behalf. Thus, Candidate
A would be required to pay the normal
and usual cost of a ‘‘comparable plane’’
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that can seat one passenger. Similarly,
Candidate B would be required to pay
the normal and usual cost of a
‘‘comparable plane’’ that can seat two
passengers.
The Commission seeks comments on
this approach and the presented
alternatives. In addition, the
Commission seeks comments on any
other calculations that might be more
appropriate.
C. Proposed 11 CFR 100.93(c)(2)—NonCommercial Air Travel by Candidates
for the House of Representatives
New 2 U.S.C. 439a(c)(2) states that ‘‘in
the case of a candidate for election for
the office of Representative in, or
Delegate or Resident Commissioner to,
the Congress [hereinafter ‘‘House
candidates’’], an authorized committee
and a leadership PAC of the candidate
may not make any expenditure’’ for
non-commercial air travel, with
exceptions for travel on government
airplanes and aircraft owned by the
candidate or members of the candidate’s
immediate family. Both exceptions are
discussed below. The effect of this
provision is generally to prohibit travel
by House candidates on noncommercial aircraft. Proposed 11 CFR
100.93(c)(2)(i) would reflect new 2
U.S.C. 439a(c)(2) by prohibiting
expenditures by House candidates for
non-commercial travel on behalf of that
candidate, the candidate’s authorized
committee, or the candidate’s leadership
PAC. The new law expressly applies to
expenditures by authorized committees
and leadership PACs of House
candidates, including expenditures
made by the candidates themselves on
behalf of their authorized committees.
Proposed 11 CFR 100.93(c)(2) would
apply not only to House candidates, but
also to persons traveling on behalf of
such candidate, the candidate’s
authorized committee, or the
candidate’s leadership PAC. This
prohibition does not apply when the
travel would not be considered an
expenditure by the candidate,
candidate’s authorized committee, or
candidate’s leadership PAC. For
example, travel by a House candidate on
behalf of a non-House candidate, party
committee, or non-candidate committee
would be required to be reimbursed by
such other committee at the respective
rate set forth for travel on behalf of that
candidate or committee. The
Commission seeks comment on this
approach.
The Commission seeks comments on
the treatment of House candidate travel
in proposed 11 CFR 100.93(c)(2).
Should House candidates be permitted
to travel on non-commercial aircraft on
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behalf of their own campaigns if the cost
of the travel is provided as a permissible
in-kind contribution? For example, if
the travel was provided by a permissible
source and the costs of the travel were
below the contribution limit, should a
non-candidate committee be able to
reimburse the travel costs as an in-kind
contribution to the candidate? The
proposed expenditure regulations,
discussed below, prohibit such in-kind
contributions. See proposed 11 CFR
113.5(b). If in-kind contributions are
allowed, at what rate should their value
be calculated for reimbursement and
reporting purposes?
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D. Proposed 11 CFR 100.93(c)(3)—NonCommercial Air Travel by Other
Campaign Travelers
The Commission proposes two
alternatives with respect to noncommercial air travel by non-candidate
campaign travelers.
Alternative 1
The Commission notes that the noncandidate reimbursement rate is not
addressed in new 2 U.S.C. 439a(c).5
These proposed changes are intended to
promote uniformity and simplicity in
the regulation, and make the regulation
easier to understand. The Commission’s
long-standing travel regulations
addressed travel only by candidates or
on behalf of candidates. See former 11
CFR 114.9(e). In 2003, the Commission
extended its travel regulations to cover
all travel in connection with a Federal
election, stating, ‘‘By establishing a
single rate for travel reimbursement, the
new rules will promote greater
uniformity among all individuals
traveling in connection with a Federal
election on behalf of a political
committee.’’
Against this background, as one
alternative, the Commission is
proposing changes to the current
reimbursement rate for campaign
travelers who are not traveling on behalf
of candidates. For example, this rate
would apply to individuals traveling on
behalf of a political party committee,
SSF, or nonconnected committee. Under
the proposed rule, the provider must be
reimbursed at the pro rata share of the
fair market value of such travel.
Proposed 11 CFR 100.93(c)(3). The pro
rata share is based on the number of
different committees represented on the
flight, and is calculated in the same
5 The statute does address payments by political
committees other than authorized committees in
describing the reimbursement rate for Senate, Vice
Presidential, and Presidential candidates. See 2
U.S.C. 439a(c)(1)(B) (‘‘the candidate, the authorized
committee, or other political committee pays
* * *’’) (emphasis added).
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manner as reimbursement for travel on
behalf of Senate, Vice Presidential, or
Presidential candidates under proposed
11 CFR 100.93(c)(1). For example, if a
non-commercial flight carried two PAC
A campaign travelers and one PAC B
campaign traveler, each PAC would be
responsible for 50% of the fair market
value of the flight.
This rate does not apply when the
travel is shared with a candidate or
person traveling on behalf of a
candidate. The Commission is
proposing this alternative to avoid
permitting outside organizations to
subsidize a candidate’s travel. Travel on
an aircraft that includes a campaign
traveler flying on behalf of a candidate,
candidate’s authorized committee, or
candidate’s leadership PAC, must be
fully reimbursed by that candidate,
candidate’s committee or, when
permissible, the candidate’s leadership
PAC. No reimbursement would be
required by the non-candidate travelers.
See proposed 11 CFR 100.93(c)(3). For
example, if a non-commercial flight
carried two PAC A campaign travelers,
one PAC B campaign traveler, and
Senator A, traveling on behalf of his or
her campaign, Senator A or Senator A’s
campaign committee would be
responsible for the full fair market value
of the flight. PAC A and PAC B would
not have to reimburse for the flight
costs.
The Commission invites comment on
whether this result should be treated as
an in-kind contribution to the PACs
from Senator A. Does it matter whether
or not the non-candidate travelers are
representatives of political committees?
If the value of the travel by the noncandidate travelers is a reportable
expenditure by Senator A when the
non-candidate travelers are political
committee representatives, should the
expenditure also be a reportable
expenditure if the non-candidate
travelers are not political committee
representatives? Does it matter whether
the non-candidate travelers are traveling
at the invitation of Senator A or at the
invitation of the service provider?
Alternative 2
Under this alternative, the
Commission proposes to retain the
existing reimbursement rate structure
for non-candidate travel. Because noncandidate travel is not addressed in the
new law, the existing rate structure
would remain the same for all campaign
travelers not traveling on behalf of a
candidate or that candidate’s authorized
committee (i.e., campaign travelers
traveling on behalf of political party
committees, SSFs, and other nonauthorized committees). The
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Commission notes that this might result
in the service provider being paid more
than the fair market value of the flight.
Does the possibility of such
‘‘overcompensation’’ to the service
provider represent a concern under
FECA? And, if so, in what way?
The Commission seeks comment on
this approach. Should the Commission
interpret the fact that new 2 U.S.C.
439a(c) does not address non-candidate
travel as a form of legislative
acquiescence to the Commission’s
current regulations on non-candidate
travel reimbursement? Do the first class
and coach air fare rates reflect the fair
market value of the services provided?
Should the Commission adopt a
different reimbursement rate for noncandidate travel, such as the per
committee or per passenger alternatives
discussed above?
E. Additional Proposed Revisions to 11
CFR 100.93
1. Members of the Media and Security
Personnel
Members of the news media
‘‘traveling with a candidate’’ for Federal
office are expressly included within the
definition of ‘‘campaign traveler’’ in the
Commission’s current rules. See 11 CFR
100.93(a)(3)(i)(B). The Commission is
not proposing changes to this definition.
Under the current rules, when a member
of the media is traveling with a
candidate, that candidate’s committee is
ultimately responsible for paying the
service provider for the full costs of the
travel, but may seek reimbursement
from the media for the media’s portion
of the travel expenses.6 The
Commission proposes to revise 11 CFR
100.93(b)(1)(iii) to ensure that members
of the media would not be permitted to
relieve the candidates with whom they
travel from responsibility for paying the
service provider the full normal and
usual charter rate or rental charge for
travel on an aircraft, pursuant to
proposed 11 CFR 100.93(c)(1). Members
of the media would still be permitted to
reimburse the service provider for travel
on conveyances other than aircraft. The
Commission seeks comments on this
approach. Should the Commission
instead continue to allow
reimbursement from members of the
6 ‘‘If a member of the news media elects to have
the candidate’s authorized committee pay for the
media’s travel rather than paying the service
provider directly, he or she may do so and the
candidate’s authorized committee is permitted to
seek reimbursement from the media. Ultimately it
is the candidate’s responsibility to ensure that the
service provider is reimbursed for the value of the
transportation provided to all persons traveling
with the candidate.’’ 2003 E&J at 69586. See also
11 CFR 9004.6 and 9034.6.
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media for travel on aircraft? At what rate
should this reimbursement take place,
for example, should it be calculated at
a portion of the charter rate or at a first
class rate?
Security personnel are treated
differently under the Commission’s
current rules. Under the current rules,
security personnel are not necessarily
considered ‘‘campaign travelers,’’ but
could qualify as such depending on the
nature of any additional services that
they provide a candidate. Compare 11
CFR 100.93(a)(3)(i)(A) with 100.93(c)(3)
and (d). For example, if Secret Service
personnel travel with a candidate for
Federal office to the candidate’s
fundraiser aboard a government
airplane, the candidate’s authorized
committee would not be required to pay
for the Secret Service member’s travel
under the current rules unless the Secret
Service agent otherwise qualified as a
campaign traveler or the flight was
required to be reimbursed at the usual
charter rate. See current 11 CFR
100.93(c)(3) (calculation of the usual
charter rate requires ‘‘comparable
commercial conveyance of sufficient
size to accommodate all campaign
travelers * * * and security personnel’’)
(emphasis added) and 11 CFR
100.93(e)(1)(ii). Committees can then
seek reimbursement from the Secret
Service for their portion of the travel
expenses. See, e.g., Advisory Opinion
1992–38 (Clinton/Gore) (loan proposal
premised on reimbursement from the
Secret Service); see also 11 CFR 9004.6
and 9034.6.
Under the proposed rules, when
security personnel travel with a
candidate or person traveling on behalf
of a candidate, that candidate’s
committee would be responsible for the
full costs of the travel. See proposed 11
CFR 100.93(c)(1). However, if the travel
occurs on a government aircraft, the
security personnel would not be
included in the calculation. See
proposed 11 CFR 100.93(e)(1). Should
the Commission allow reimbursement
from security personnel for travel on
non-commercial, non-governmental
aircraft? At what rate should this
reimbursement take place, for example,
should it be calculated at a portion of
the charter rate or at a first class rate?
Under current regulations, how and
under what circumstances do
committees seek reimbursement for
travel expenses from the U.S. Secret
Service?
2. ‘‘Comparable Plane of Comparable
Size’’
New 2 U.S.C. 439a(c)(1)(B) requires
that the candidate or the candidate’s
authorized committee use the fair
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market value of a ‘‘comparable plane of
comparable size’’ for purposes of
calculating the appropriate charter rate.
The Commission interprets ‘‘comparable
size’’ as an aircraft with similar physical
dimensions that is able to carry a similar
number of passengers.7
The Commission interprets
‘‘comparable plane’’ as an aircraft of
similar make and model as the airplane
that actually makes the trip, with the
same amenities as that airplane. This
interpretation is consistent with the
Commission’s current interpretation of a
similar term, ‘‘comparable commercial
airplane,’’ in the current rules. See 11
CFR 100.93(c)(3); see also proposed 11
CFR 100.93(c)(3)(iii). As explained in
the 2003 E&J:
a ‘‘comparable commercial airplane’’ means
an airplane of similar make and model as the
airplane that actually makes the trip, and
with the same amenities as that airplane. For
example, in Advisory Opinion 1984–48, the
Commission interpreted a comparable
airplane as being ‘‘of the same type (e.g., jet
aircraft versus prop plane) and services
offered (e.g., plane with dining service or
lavatory versus one without)’’ as the plane
actually used. The Commission further
explained that when a candidate used a twin
engine prop jet, a single engine, prop aircraft
would not be a comparable aircraft. The term
‘‘comparable commercial airplane’’ is
intended to require these distinctions as well
as other differences such as when a plane is
chartered with a crew or without, or with or
without fuel.
2003 E&J at 69588–69589.
The Commission seeks comments on
this approach.
3. Presidential and Vice-Presidential
Candidates Accepting Public Financing
The Commission proposes to continue
its policy of promoting equal treatment
of travel by publicly financed
candidates and presidential or vicepresidential candidates who have not
accepted public funds. Therefore,
proposed 11 CFR 100.93(c)(1) would
apply directly to presidential and vicepresidential candidates who have not
accepted public funds, while the
proposed revisions to 11 CFR 9004.7
7 The Commission’s current rules at 11 CFR
100.93 distinguish between travel aboard an
‘‘airplane’’ and travel aboard all other conveyances,
including helicopters. See 11 CFR 100.93(a)(3)(ii)
(definition of ‘‘service provider’’ focuses on ‘‘person
who makes the airplane or other conveyance
available’’), 11 CFR 100.93(c) (‘‘travel by airplane’’)
and 11 CFR 100.93(d) (‘‘other means of
transportation’’ includes ‘‘any other means of
transportation’’ and specifically lists helicopters).
For internal consistency and to promote uniformity
within its regulations and avoid confusion, the
Commission proposes to replace all references to
‘‘airplanes’’ in 11 CFR 100.93 with ‘‘aircraft.’’ The
primary impact would be that travel aboard a
helicopter would be reimbursed at the pro rata
share of the fair market value of the flight.
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and 9034.7, discussed below, would
continue to incorporate the section
100.93 rates by reference and thereby
indicate that they also apply to
candidates who have accepted public
funds. One important distinction,
however, is that a presidential candidate
accepting public funds for the general
election is prohibited from receiving
any in-kind contribution from any
person, which would include an in-kind
contribution of non-commercial air
travel.
The Commission seeks comments on
the proposed application of the new
rules to publicly financed presidential
and vice-presidential candidates.
4. Travel on Behalf of Leadership PACs
of Senate, Presidential, and VicePresidential Candidates
Under new 2 U.S.C. 439a(c),
payments by leadership PACs of House
candidates are subject to the same
restrictions as payments by authorized
committees of House candidates. See 2
U.S.C. 439a(c)(2). In contrast, new 2
U.S.C. 439a(c) is silent with respect to
leadership PACs of Senate candidates
and Federal officeholders with
leadership PACs who are also
presidential or vice-presidential
candidates.
The Commission proposes to apply
the new reimbursement rates to travel
on behalf of a Senate candidate’s
leadership PAC. See 11 CFR
100.93(c)(1). The Commission seeks
comment on this approach.
Alternatively, should the Commission
decline to extend the new
reimbursement rate structure to travel
on behalf of a Senate candidate’s
leadership PAC because the new law
does not explicitly do so?
5. Commercially Reasonable Time
Frame
Candidates for President, VicePresident, and the U.S. Senate must pay
their pro rata share of non-commercial
travel on aircraft ‘‘within a
commercially reasonable time frame
after the date on which the flight is
taken.’’ 2 U.S.C. 439a(c)(1)(B). Proposed
11 CFR 100.93(c) would define the
statutory ‘‘commercially reasonable time
frame’’ as a seven-day time frame
beginning on the first day of the flight.
The proposed approach would be
located in the introductory clause of 11
CFR 100.93(c) and thus would be
applicable to all payments required
under that paragraph. The Commission
seeks comment on this approach.
Is seven days a ‘‘commercially
reasonable time frame’’ for
reimbursement or is it too short a
period? Would another time period for
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reimbursement be more appropriate or
reasonable? Should the Commission
instead establish the seven-day period
(or some other period) as a safe harbor,
and consider longer periods on a caseby-case basis to determine if the
‘‘commercially reasonable time frame’’
requirement was satisfied?
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F. Proposed 11 CFR 100.93(e)—
Government Conveyances
The Commission’s current rules at 11
CFR 100.93(e) require reimbursement
for travel aboard airplanes owned by the
Federal government, or by any State or
local government entity, at the same rate
as travel aboard other airplanes (i.e., the
rate for a first-class or coach ticket
aboard a commercial flight if the travel
is between two cities served by regularly
scheduled commercial airline service, or
the equivalent charter rate if there is no
such service between the cities).8 Noncommercial campaign travel aboard
other government conveyances is also
required to be reimbursed at the same
rate as travel aboard equivalent means
of transportation not owned by a
government entity. 11 CFR 100.93(e)(2).
New 2 U.S.C. 439a(c) generally
prohibits candidates for the U.S. House
of Representatives from using campaign
funds for non-commercial campaign
travel, but provides an exception for
travel aboard an aircraft ‘‘operated by an
entity of the Federal government or the
government of any State.’’ 2 U.S.C.
439a(c)(2)(B). The new law does not
specify any particular rate of
reimbursement for travel aboard
government aircraft, nor does it
explicitly require or prohibit
reimbursement for such travel.9
Proposed 11 CFR 100.93(e) would
require all campaign travelers, including
candidates for Federal office and those
traveling on their behalf, who travel on
aircraft provided by a Federal or State
government entity (including local
governments), to reimburse the
appropriate government entity for the
travel. See proposed 11 CFR 100.93(e).
The proposed rules set out two
alternative rates of reimbursement for
8 Travel to or from a military airbase or other
location not accessible to the general public is
treated as travel from the nearest city with
regularly-scheduled commercial airline service. 11
CFR 100.93(e)(1)(i).
9 The Commission notes that Public Law 110–81
also amends the Senate ethics rules regarding
travel. These amendments similarly require
Senators to pay this pro rata share of the fair market
value of a flight for non-commercial travel. See
Public Law 110–81, Sec. 544(c)(1), amending
Paragraph 1(c)(1) of rule XXXV of the Standing
Rules of the Senate. These amendments, however,
expressly except from these restrictions any travel
aboard ‘‘an aircraft owned or leased by a
governmental entity.’’ Standing Rules of the Senate,
Rule XXXV, Paragraph 1(c)(1)(C)(iii).
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travel by candidates and candidate
representatives, and either rate would
be acceptable.
The first proposed rate of
reimbursement, which would be similar
to current 11 CFR 100.93(c)(1), would be
the pro rata share per represented
candidate of the normal and usual
charter fare or rental charge for the flight
on a comparable aircraft of sufficient
size to accommodate all of the campaign
travelers. The pro rata share would be
determined by dividing the normal and
usual charter fare by the number of
different candidates represented on the
flight, regardless of the total number of
campaign travelers or other passengers.
Under this proposal, the ‘‘comparable
aircraft’’ used for determining the
required reimbursement amount would
not be required to accommodate the
non-campaign related passengers and
equipment aboard the aircraft. For
example, if Presidential Candidate A,
two campaign staffers traveling on
behalf of Presidential Candidate A, two
members of the Secret Service, and PAC
representative P, travel on a twenty-seat
government aircraft, reimbursement
would be required at the normal and
usual charter rate for comparable
aircraft of sufficient size to
accommodate four passengers
(Presidential Candidate A, his two
campaign staffers, and PAC
representative P; the two Secret Service
agents would not be counted).
Presidential Candidate A would pay the
full charter rate, and PAC representative
P would not be required to reimburse
for his or her travel. The Commission
seeks comment on this approach.
Specifically, do non-candidate
campaign travelers use government
aircraft when not accompanied by a
candidate, or person traveling on behalf
of a candidate? At what rate should
travel on a government plane that does
not include any candidate-related
campaign travelers be calculated?
The Commission seeks comments on
a variation of this first reimbursement
rate, in which Presidential Candidate A
and PAC representative P would each be
responsible for the full cost of the
normal and usual charter rate for an
aircraft of sufficient size to
accommodate only those campaign
travelers who are traveling on their
behalf. Under this variation,
Presidential Candidate A would pay the
normal and usual charter rate for an
aircraft capable of accommodating three
campaign travelers: Candidate A and his
two staffers. PAC representative P
would be required to pay only the
normal and usual charter rate for an
aircraft of sufficient size to carry one
passenger.
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With respect to campaign travel
aboard Air Force One or other
government aircraft dedicated to
transporting the Vice President, the
Speaker of the House of Representatives,
or other such officials, the Commission
intends that the reimbursement amount
under this proposal would be
determined with reference to an aircraft
of sufficient size to accommodate the
campaign travelers, and excluding all
non-campaign-related personnel and
equipment. The Commission
acknowledges that it may be difficult, if
not impossible, to apply the
‘‘comparable plane of comparable size’’
standard to circumstances in which the
campaign traveler travels exclusively
aboard a specially-outfitted,
government-owned aircraft by virtue of
his or her status as an officeholder. For
example, few, if any, aircraft exist with
the ‘‘same amenities’’ as Air Force One.
See proposed 11 CFR 100.93(e)(1)(i).
The second proposed rate of
reimbursement would be the private
traveler reimbursement rate per
campaign traveler. This rate would be
the rate specified by the Federal, State,
or local government agency or other
government entity for private travel on
its aircraft by a member of the public.
The Department of Defense, for
example, publishes a list of hourly
reimbursement rates for both fixed-wing
aircraft and helicopters and includes an
‘‘All Other User’’ rate.10 Using the
private traveler reimbursement rate, the
reimbursement rate is calculated by
dividing the private traveler
reimbursement rate by the number of
campaign travelers. Reimbursement
would not be required for national
security staff or other government
officials on the flight that are not
campaign travelers. The Commission
seeks comment on this approach.
Should the campaign traveler be
permitted to reimburse the government
entity at a lower rate specified by the
government entity, such as the rate
offered by some government agencies to
travelers of other government agencies?
Should the regulations offer a choice
between alternative acceptable
valuation methods, or should the
Commission adopt a single method of
determining the reimbursement rate?
The Commission recognizes that
campaign travel aboard government
conveyances such as Air Force One and
Air Force Two present special
circumstances. Therefore, the
10 See Fiscal Year 2008 Reimbursement Rates,
available at https://www.defenselink.mil/
comptroller/rates/fy2008/2008_f.pdf and https://
www.defenselink.mil/comptroller/rates/fy2008/
2008_h.pdf.
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Federal Register / Vol. 72, No. 204 / Tuesday, October 23, 2007 / Proposed Rules
Commission requests comment on how
it should address Air Force One and Air
Force Two in its regulations.
The proposed rules would not specify
a particular time for repayment for
travel on government aircraft under
either of the alternative rates. Should
the Commission require payment within
a specific time period, such as seven
days, as for travel on other aircraft
under proposed 11 CFR 100.93(c)?
rfrederick on PROD1PC67 with PROPOSALS
G. Proposed 11 CFR 100.93(g)—
Exception for Aircraft Owned by Federal
Candidates and Their Family Members
The amendments to 2 U.S.C. 439a
include an exception for travel aboard
aircraft that are ‘‘owned or leased’’ by a
candidate or candidate’s immediate
family member, including an aircraft
owned or leased by any entity in which
the candidate or a member of the
candidate’s immediate family ‘‘has an
ownership interest,’’ provided that the
entity is not a ‘‘public corporation’’ and
the use of the aircraft is not ‘‘more than
the candidate’s or immediate family
member’s proportionate share of
ownership allows.’’ 2 U.S.C.
439a(c)(3)(A). The exception would
operate as an exception to all of the
restrictions on expenditures for air
travel in new 2 U.S.C. 439a(c). See
discussion of proposed 11 CFR 113.5.
The Commission seeks comment on this
approach.
While the new exception relieves the
restrictions on expenditures, it does not
relieve candidates of the obligation to
reimburse the service providers
(candidates, members of their family, or
entities in which either owns an
interest) to avoid receiving an in-kind
contribution for the use of the aircraft.
See 11 CFR 100.93. Even though a
candidate for Federal office may make
an unlimited amount of contributions to
his or her own campaign, those
contributions must be reported by the
candidate’s authorized committee.11 11
CFR 110.10; Advisory Opinions 1991–
09 (Hoagland), 1990–09 (Mueller),
1985–33 (Collins), 1984–60 (Mulloy).
Contributions by all other persons,
including immediate family members,
are subject to the applicable amount
limits and source prohibitions. 11 CFR
110.1 et seq.
The Commission proposes several
reimbursement alternatives. Proposed
11 CFR 100.93(g) would require
11 A contribution by a candidate for the House or
Senate to his own campaign may also impact
separate disclosure requirements for expenditures
from personal funds under 2 U.S.C. 441a(i), the socalled ‘‘Millionaires Amendment.’’ 2 U.S.C.
441a(i)(1)(C); 11 CFR Part 400. The Commission
seeks comment on the impact of these proposed
regulations on the Millionaire’s Amendment.
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reimbursement for aircraft owned by
candidates and their immediate family
at the rates set forth in the
Commission’s existing rules, which
would be moved to 11 CFR
100.93(g)(1)(i) through (iii): first-class,
coach, or charter rates, depending on
whether the origin and destination cities
are served by regularly scheduled
commercial airline service. The charter
rate would be required only if the travel
is between two cities not served by
regularly scheduled first class or coach
commercial airline service.
1. Incremental Cost Alternative
As an alternative, the Commission
proposes that such travel be reimbursed
at the actual incremental cost of such
travel. For example, in the case of a
candidate piloting his or her own
aircraft to a campaign event, the rate of
reimbursement would be the actual cost
of fuel and any incremental costs such
as landing fees. Depreciation or the
candidate’s piloting services would not
be included in the reimbursement
calculation. However, under this
alternative, if a pilot or crew were
employed for the flight, the cost of their
services would be included in the
reimbursement rate. Should
reimbursement not be required if the
pilot or crew (including family
members) are volunteers for the
candidate or campaign committee?
2. Actual Value Alternative
In the case of travel on an aircraft that
is owned or leased under a sharedownership or other time-share
arrangement, the Commission proposes
as an additional alternative that
reimbursement be required at the
hourly, mileage, or other applicable rate
charged the candidate, corporation, or
immediate family member for the costs
of the travel. For example, if a candidate
traveled on an aircraft leased by an
immediate family member at a cost of
$1,000 per hour, the appropriate
reimbursement rate to that family
member would be $1,000 per hour.
The Commission seeks comment on
the proposed approaches or any other
method of calculation. For example, the
Commission seeks comment on whether
the exception should require
reimbursement at all for travel on
candidate-owned aircraft. Alternatively,
should the Commission require
reimbursement at the same
reimbursement rate required for all
other candidate travel under the
proposed regulations, i.e., the pro rata
share of the fair market value of such
flight? Moreover, should the
Commission allow one or more methods
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59961
for calculating the appropriate
reimbursement rate?
Because the exception in 2 U.S.C.
439a(c)(3) for travel on aircraft owned
by candidates or members of their
immediate family functions to permit
otherwise restricted or prohibited
expenditures by candidates and their
committees, the Commission proposes
to limit the exception to travel by
candidates or persons traveling on
behalf of candidates. Thus, proposed 11
CFR 100.93(g) would cover travel on an
aircraft owned by a candidate, the
candidate’s immediate family member,
or an entity other than a public
corporation in which the candidate or
immediate family member has an
ownership interest. The exception
would not, however, be available for
other candidates traveling on behalf of
their own campaigns.12 The
Commission seeks comment on this
approach.
In addition, the exception in new 2
U.S.C. 439a(c)(3) includes several terms
warranting clarification. First, the term
‘‘ownership interest’’ is not defined. The
Commission proposes to interpret the
term ‘‘ownership interest’’ to include
fractional ownership, equity, or use
arrangements, as well as ‘‘time-sharing’’
arrangements in which the candidate or
an immediate family member pays a fee
for a specified amount of travel on the
aircraft.
The Commission proposes to interpret
the term ‘‘public corporation’’ as
applying to any corporation with
publicly traded shares. Therefore,
aircraft owned by privately held
corporations without publicly traded
shares, partnerships without publicly
traded equity interests, limited liability
companies without publicly traded
shares, and all other entities without
publicly traded shares or equity
interests would fall within this
exception, so long as a candidate or
member of the candidate’s immediate
family owns an equity interest or voting
interest in that entity.
The new statutory exception limits a
candidate’s use of the aircraft to not
‘‘more than the candidate’s or
immediate family member’s
proportionate share of ownership
allows.’’ 2 U.S.C. 439(c)(3)(A). However,
the statute does not specify the exact
nature of the relationship between
ownership shares and use of the aircraft.
12 The reimbursement rates in proposed 11 CFR
100.93(c)(3)(i) through (iii) would apply to officials
of a political party committee who are traveling on
behalf of the party committee, and other campaign
travelers who are traveling on behalf of a political
committee other than a candidate’s authorized
committee or leadership PAC.
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Rather than account for all of the
potential ownership structures of an
entity that may own or lease an aircraft,
the Commission is proposing a simple
condition for the exception to apply:
unless the candidate or immediate
family member is the sole owner of the
aircraft, the amount of use of the aircraft
to which each ownership share is
entitled must be specified in writing
prior to the candidate’s use of the
airplane. As long as the written policy
provides a reasonable relationship
between the use of the aircraft and the
percentage of ownership by the
candidate or candidate’s immediate
family member, the Commission would
not delve into the various ownership
structures. The Commission requests
comments on this proposal. If the
candidate’s use of the aircraft exceeds
his or her proportionate ownership
share, how should that excessive use be
reimbursed? Should the excessive use
be prohibited altogether?
The proposed rules would not specify
a particular time for repayment for
travel on aircraft owned by a candidate
or a member of the candidate’s
immediate family. Should the
Commission require payment within a
specific time period, such as seven days,
as for travel on other aircraft under
proposed 11 CFR 100.93(c)?
H. Recordkeeping Requirements
In light of the proposed changes to the
reimbursement rates required for
candidates and candidate
representatives, the Commission
proposes two revisions to its current
recordkeeping requirements for noncommercial travel at 11 CFR 100.93(i),
which would be relocated to proposed
11 CFR 100.93(j).
First, although the Commission’s
current rules permit candidates and
persons traveling on their behalf to pay
first-class or coach rates for certain
flights, candidates and their
representatives would be required to
pay the normal and usual charter rates
under the proposed rules. See proposed
11 CFR 100.93(c)(1) and (2).
Accordingly, the Commission proposes
to establish a new paragraph in its
revised recordkeeping section to specify
that candidates, and those paying for
travel by candidates and candidate
representatives, must follow the current
recordkeeping requirements for persons
paying the normal and usual charter rate
for air travel. See proposed 11 CFR
100.93(j)(3)(i) (referencing the
recordkeeping requirements in proposed
paragraph (j)(2) of the same section).
These requirements are intended to
preserve information, such as the tail
number of an aircraft and the number of
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campaign travelers, that would enable
the Commission to determine whether
the correct amount of reimbursement
was provided for specific flights. To
avoid any inference that candidates
would be permitted to pay the first class
or coach rates, proposed paragraphs
(j)(1) and (j)(2) would also be revised to
expressly provide that candidates and
person traveling on behalf of candidates
would be governed by paragraph (j)(3),
not (j)(1).
Second, the Commission would
require that a record of the written
agreement required for aircraft owned in
part by a candidate for Federal office or
a member of his or her immediate
family be maintained by the committee.
The Commission seeks comment on the
appropriate duration of this record
retention requirement. See proposed 11
CFR 100.93(j)(3)(ii). Where an aircraft is
owned by an entity in which the
candidate or a member of the
candidate’s immediate family owns an
interest, this document would be
required by proposed 11 CFR 100.93(g)
to specify the proportionate use of the
aircraft corresponding to the percentage
of ownership of the candidate or
member of the candidate’s immediate
family.
The Commission seeks comments on
these proposed revisions.
V. Use of Campaign Funds for NonCommercial Travel—11 CFR 113.5
In addition to the proposed revisions
to the travel reimbursement regulations
at 11 CFR 100.93, the Commission also
proposes to add a new section 11 CFR
113.5 to implement the limit on
expenditures for non-commercial air
travel contained in new 2 U.S.C.
439a(c).
A. Proposed Change of Title for 11 CFR
Part 113
Along with the proposed addition of
new 11 CFR 113.5 implementing new 2
U.S.C. 439a(c), the Commission
proposes to change the title of Part 113.
The current title, ‘‘Use of Campaign
Accounts for Non-Campaign Purposes,’’
is insufficiently broad to encompass the
subject matter of the proposed rule,
which regulates a use of campaign funds
for campaign purposes rather than for
non-campaign purposes. The
Commission proposes instead the
broader title, ‘‘Permitted and Prohibited
Uses of Campaign Accounts,’’ to capture
the content of both the existing
regulations in this part and that of the
proposed rule.
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B. Proposed 11 CFR 113.5(a)—Rule for
Presidential, Vice-Presidential and
Senate Candidates
Proposed 11 CFR 113.5(a)(1) reflects
the general prohibition in new 2 U.S.C.
439a(c) on the expenditure of funds by
candidates for President, Vice-President
or the Senate and their authorized
committees and leadership PACs for
aircraft flights, except in certain
specified situations. The first situation
is when air travel is taken on
‘‘commercial’’ flights. See proposed 11
CFR 113.5(a)(1). The second situation is
when air travel is taken on ‘‘noncommercial’’ flights and the candidate
or his or her authorized committee
reimburses the provider of the airplane
in the amount of the candidate’s pro rata
share of the fair market value of the
flight within seven days of the flight.
See proposed 11 CFR 113.5(a)(2).
Proposed 11 CFR 113.5(a)(1) and (2)
provide cross-references to definitions
of the terms ‘‘commercial travel,’’ ‘‘noncommercial travel,’’ and ‘‘pro rata share
of the fair market value of the flight’’ in
proposed 11 CFR 100.93(a)(3)(iv), (v)
and (vi).
Proposed 11 CFR 113.5(a) includes
restrictions on expenditures by
leadership PACs of Senate, presidential,
and vice-presidential candidates, to
conform to the Commission’s proposed
language in 11 CFR 100.93(c)(1).
The Commission requests comments
on all of the above aspects of proposed
11 CFR 113.5(a).
C. Proposed 11 CFR 113.5(b)—Rule for
House Candidates
New 2 U.S.C. 439a(c)(2) contains the
applicable rule for candidates for
election to office in the House of
Representatives. Unlike candidates for
President, Vice-President, or the U.S.
Senate, House candidates, including
authorized committees and leadership
PACs of such candidates, are prohibited
from spending campaign funds on
private, non-commercial air travel.
Instead, House candidates may spend
campaign funds on air travel only when
the flight is commercial or when the
flight is operated by an entity of the
Federal government or of a State
government (including local
governments). Other than travel
permitted under 11 CFR 100.92(g),
because House candidates, their
authorized committees, and their
leadership PACs are prohibited from
spending campaign funds on noncommercial travel, the proposed rule
also prohibits House candidates from
accepting in-kind contributions in the
form of non-commercial air travel.
Proposed 11 CFR 113.15(b).
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Federal Register / Vol. 72, No. 204 / Tuesday, October 23, 2007 / Proposed Rules
(26 U.S.C. 9031 et seq.), the Commission
proposes to make certain amendments
to its regulations implementing these
laws to conform to the changes it
proposes to make to 11 CFR 100.93.
Sections 9004.7 and 9034.7 are
identically worded regulations
D. Proposed 11 CFR 113.5(c)—Exception promulgated under the authority of the
to Rules for Aircraft Owned or Leased by Fund Act and the Matching Payment
Candidate or Immediate Family Member Act, respectively, and contain crossreferences to 11 CFR 100.93. Both
The restrictions on expenditures in
the amendments to 2 U.S.C. 439a do not regulations prescribe the procedures
that publicly funded primary and
apply to travel aboard aircraft that are
general election presidential campaigns
‘‘owned or leased’’ by the candidate or
the candidate’s immediate family
must follow in attributing their travel
member, and aircraft owned or leased
expenses to campaign-related and to
by any entity in which the candidate or
non-campaign-related activities. The
a member of the candidate’s immediate
Commission proposes the following
family ‘‘has an ownership interest,’’
technical amendments to conform these
provided that the entity is not a ‘‘public regulations to proposed 11 CFR 100.93:
corporation’’ and the use of the aircraft
A. Aircraft
is not ‘‘more than the candidate’s or
immediate family member’s
Proposed 11 CFR 9004.7(b)(5)(i), (iii),
proportionate share of ownership
and (v), and 11 CFR 9004.7(b)(8) replace
allows.’’ 2 U.S.C. 439a(c)(3)(A).
the word ‘‘airplane’’ with the word
The Commission proposes to
‘‘aircraft.’’ These changes conform the
implement this exception in proposed
regulations to the scope of new 2 U.S.C.
11 CFR 113.5(c). Proposed 11 CFR
439a(c) and to proposed 11 CFR 100.93,
113.5(c)(1) contains the exceptions.
as well as to proposed 11 CFR 113.5.
Proposed 11 CFR 113.5(c)(2) states that
candidates and immediate family
B. Recordkeeping Requirements
members will be considered to own or
Currently, 11 CFR 9004.7(b)(5)(v) and
lease aircraft under the conditions
11 CFR 9034.7(b)(5)(v) require the
described in proposed 11 CFR
authorized committees of presidential
100.93(g)(2), namely, when there is an
and vice-presidential candidates to
ownership interest in an entity other
maintain documentation of the lowest
than a public corporation that owns the
aircraft. Proposed 11 CFR 113.5(c)(3)
unrestricted non-discounted airfare as
contains a cross-reference to proposed
required in 11 CFR 100.93(i)(1) or (2).
11 CFR 100.93(g)(3), which defines the
Sections 100.93(i)(1) and (2) contain
term ‘‘immediate family member’’ in
recordkeeping requirements relating to
accordance with new 2 U.S.C.
rates of reimbursement prescribed in 11
439a(c)(3)(B).
CFR 100.93(c) and (e). Proposed 11 CFR
100.93 replaces the current
E. Proposed 11 CFR 113.5(d)—
reimbursement rate for non-commercial
Unreimbursed Air Travel as
air travel by presidential and viceContribution
presidential candidates with a rate
Proposed 11 CFR 113.5(d) states that
based on the ‘‘pro rata share of the fair
the unreimbursed value of
market value’’ of the flight and sets out
transportation provided to any
the corresponding recordkeeping
campaign traveler, as defined in
requirements in proposed 11 CFR
proposed 11 CFR 100.93(a)(3)(i), is an
100.93(j)(3). The Commission proposes
in-kind contribution from the service
to change 11 CFR 9004.7(b)(5)(v) and 11
provider to the candidate or political
CFR 9034.7(b)(5)(v) to conform the
committee on whose behalf, or with
recordkeeping requirements to those
whom, the campaign traveler traveled,
proposed in 11 CFR 100.93(j)(3). The
and that such contributions are subject
to the limits and prohibitions of the Act. Commission also proposes to make a
conforming amendment to the final
VI. Publicly-Financed Presidential and
sentence in this provision, which
Vice-Presidential Candidates—11 CFR
addresses recordkeeping requirements
9004.7 & 9034.7
for travel on other conveyances.
Recordkeeping requirements in such
Although new 2 U.S.C. 439a(c) does
cases would be addressed in proposed
not amend either the Presidential
Election Campaign Fund Act (Fund Act) 11 CFR 100.93(j)(4). Thus, the
Commission proposes to require
(26 U.S.C. 9001 et seq.) or the
Presidential Primary Matching Payment recordkeeping in accordance with
proposed 11 CFR 100.93(j)(4).
Account Act (Matching Payment Act)
rfrederick on PROD1PC67 with PROPOSALS
Proposed 11 CFR 113.5(b)(1) and (2)
implement these provisions. Proposed
subparagraph (1) contains the same
‘‘commercial exception’’ as is set forth
in proposed 11 CFR 113.5(a)(2). Travel
on government-operated aircraft is
reflected in proposed subparagraph (2).
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59963
C. 11 CFR 9004.7(b)(8) and 11 CFR
9034.7(b)(8)—Scope
Sections 9004.7(b)(8) and 9034.7(b)(8)
identify the scope of 11 CFR 100.93 in
terminology used in current section
100.93. Specifically, the provisions
speak in terms of aircraft that are
‘‘licensed for compensation or hire’’
under various FAA certification
authorities. The Commission proposes
to change this language to conform to
the proposed language used in new 2
U.S.C. 439a(c) and in proposed 11 CFR
100.93. Proposed 11 CFR 9004.7(b)(8)
and 11 CFR 9034.7(b)(8) state that travel
on non-commercial airplanes is
governed by 11 CFR 100.93 and that the
term ‘‘non-commercial’’ is defined in
accordance with proposed section 11
CFR 100.93(a)(3)(v).
The Commission invites comments
from the public concerning any of the
proposals outlined above. The
Commission also invites comments from
the public regarding any additional
changes that should be made to 11 CFR
100.5(e), 100.93, 113.5, 9004.7(b)(5)(i),
(iii), (v) or (b)(8), or 9034.7(b)(5)(i), (iii),
(v), or (b)(8).
Certification of No Effect Pursuant to 5
U.S.C. 605(b) [Regulatory Flexibility
Act]
The Commission certifies that the
attached proposed rules, if promulgated,
will not have a significant economic
impact on a substantial number of small
entities. The basis for this certification
is that few, if any, small entities would
be affected by these final rules, which
impose obligations only on Federal
candidates, their campaign committees,
other individuals traveling in
connection with a Federal election, and
the political committees on whose
behalf this travel is conducted. Federal
candidates, their campaign committees,
and most political party committees and
other political committees entitled to
rely on these rules are not small entities.
These rules would generally clarify or
supplement existing rules and are
largely intended to implement a
statutory directive and simplify the
process of determining reimbursement
rates. The rules would not impose
compliance costs on any service
providers (as defined in the rules) that
are small entities so as to cause a
significant economic impact. With
respect to the determination of the
amount of reimbursement for travel, the
new rules would merely reflect an
extension of existing similar rules. To
the extent that operators of air-taxi
services or on-demand air charter
services are small entities indirectly
impacted by these rules, any economic
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effects would result from the travel
choices of individual candidates or
other travelers rather than Commission
requirements and, in any event, are
likely to be less than $100,000,000 per
year.
List of Subjects
11 CFR Part 100
Elections.
11 CFR Part 113
Campaign funds, and political
candidates.
11 CFR Part 9004
Campaign funds.
11 CFR Part 9034
Campaign funds, Reporting and
recordkeeping requirements.
For the reasons set out in the
preamble, the Federal Election
Commission proposes to amend
subchapters A, E, and F of chapter 1 of
title 11 of the Code of Federal
Regulations as follows:
PART 100—SCOPE AND DEFINITIONS
(2 U.S.C. 431)
1. The authority citation for part 100
would be revised to read as follows:
Authority: 2 U.S.C. 431, 434, 438(a)(8), and
439a(c).
2. Section 100.5 would be amended
by adding a new paragraph (e)(6) to read
as follows:
§ 100.5 Political committee (2 U.S.C. 431
(4), (5), (6)).
*
*
*
*
(e) The following are examples of
political committees:
*
*
*
*
*
(6) Leadership PAC. Leadership PAC
means a political committee that is
directly or indirectly established,
financed, maintained or controlled by a
candidate for Federal office or an
individual holding Federal office but
which is not an authorized committee of
the candidate or individual and which
is not affiliated with an authorized
committee of the candidate or
individual, except that leadership PAC
does not include a political committee
of a political party.
*
*
*
*
*
3. Section 100.93 is revised to read as
follows:
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*
§ 100.93 Travel by aircraft or other means
of transportation.
(a) Scope and definitions. (1) This
section applies to all campaign travelers
who use non-commercial travel
(2) Campaign travelers who use
commercial travel, such as a commercial
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airline flight, charter flight, taxi, or an
automobile provided by a rental
company, are governed by 11 CFR
100.52(a) and (d), not this section.
(3) For the purposes of this section:
(i) Campaign traveler means
(A) Any candidate for Federal office
or any individual traveling in
connection with an election for Federal
office on behalf of a candidate or
political committee; or
(B) Any member of the news media
traveling with a candidate.
(ii) Service provider means the owner
of an aircraft or other conveyance, or a
person who leases an aircraft or other
conveyance from the owner or
otherwise obtains a legal right to the use
of an aircraft or other conveyance, and
who uses the aircraft or other
conveyance to provide transportation to
a campaign traveler. For a jointly owned
or leased aircraft or other conveyance,
the service provider is the person who
makes the aircraft or other conveyance
available to the campaign traveler.
(iii) Unreimbursed value means the
difference between the value of the
transportation service provided, as set
forth in this section, and the amount of
payment for that transportation service
by the political committee or campaign
traveler to the service provider within
the time limits set forth in this section.
(iv) Commercial travel means travel
aboard:
(A) An aircraft operated by an air
carrier or commercial operator
certificated by the Federal Aviation
Administration, provided that the flight
is required to be conducted under
Federal Aviation Administration air
carrier safety rules, or, in the case of
travel which is abroad, by an air carrier
or commercial operator certificated by
an appropriate foreign civil aviation
authority, provided that the flight is
required to be conducted under air
carrier safety rules; or
(B) Other means of transportation
operated for commercial passenger
service
(v) Non-commercial travel means
travel aboard any conveyance that is not
commercial travel, as defined in
paragraph (a)(3)(iv) of this section.
(b) General rule. (1) No contribution is
made by a service provider to a
candidate or political committee if:
(i) Every candidate’s authorized
committee, leadership PAC, or other
political committee on behalf of which
the travel is conducted pays the service
provider, within the required time, for
the full value of the transportation, as
determined in accordance with
paragraphs (c), (d), (e) or (g) of this
section, provided to all campaign
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travelers who are traveling on behalf of
that candidate or political committee; or
(ii) Every campaign traveler for whom
payment is not made under paragraph
(b)(1)(i) of this section pays the service
provider for the full value of the
transportation provided to that
campaign traveler as determined in
accordance with paragraphs (c), (d), (e)
or (g) of this section. See 11 CFR 100.79
and 100.139 for treatment of certain
unreimbursed transportation expenses
incurred by individuals traveling on
behalf of candidates, authorized
committees, and political committees of
political parties; and
(iii) Every member of the news media
traveling with a candidate for whom
payment is not made under paragraph
(b)(1)(i) of this section pays the service
provider for the full value of his or her
transportation as determined in
accordance with paragraphs (d) or (e)(2)
of this section.
(2) Except as provided in 11 CFR
100.79, the unreimbursed value of
transportation provided to any
campaign traveler, as determined in
accordance with paragraphs (c), (d) or
(e) of this section, is an in-kind
contribution from the service provider
to the candidate or political committee
on whose behalf, or with whom, the
campaign traveler traveled.
(c) Travel on aircraft. When a
campaign traveler uses aircraft for noncommercial travel, other than a
government aircraft described in
paragraph (e) of this section or an
aircraft described in paragraph (g) of
this section, reimbursement must be
provided no later than seven (7)
calendar days after the date the flight
began at one of the following rates to
avoid the receipt of an in-kind
contribution:
(1) Travel by or on behalf of Senate,
presidential, or vice-presidential
candidates. A Senate, presidential, or
vice-presidential candidate traveling on
his own behalf, or any person traveling
on behalf of such candidate, the
candidate’s authorized committee, or
the candidate’s leadership PAC, must
pay the pro rata share per represented
candidate of the normal and usual
charter fare or rental charge for travel on
a comparable aircraft of comparable
size. The pro rata share shall be
calculated by dividing the normal and
usual charter fare or rental charge by the
number of different candidates
represented on the flight, regardless of
the total number of campaign travelers
or other passengers.
(2) House candidates. Except as
otherwise provided in paragraphs (e)
and (g) of this section, a campaign
traveler who is a candidate for election
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for the office of Representative in, or
Delegate or Resident Commissioner to,
the Congress, or a person traveling on
behalf of any such candidate or any
authorized committee or leadership
PAC of such candidate, is prohibited
from non-commercial travel on behalf of
any such candidate or any authorized
committee or leadership PAC of such
candidate.
(3) Other campaign travelers. No
reimbursement is required for travel by
campaign travelers not covered by
paragraphs (c)(1) or (c)(2) of this section
if that travel is required to be
reimbursed by a candidate, or any
authorized committee or leadership
PAC of a candidate, pursuant to
paragraphs (c)(1) or (c)(2) of this section.
Otherwise, a campaign traveler not
covered by paragraphs (c)(1) or (c)(2) of
this section, or the political committee
on whose behalf the travel is conducted,
must pay the service provider the pro
rata share per represented committee of
the normal and usual charter fare or
rental charge for travel on a comparable
airplane of comparable size. The pro
rata share shall be calculated by
dividing the normal and usual charter
fare or rental charge by the number of
different committees represented on the
flight, regardless of the total number of
campaign travelers or other passengers.
(d) Other means of transportation. If
a campaign traveler uses any means of
transportation other than an aircraft,
including an automobile, or train, or
boat, the campaign traveler, or the
political committee on whose behalf the
travel is conducted, must pay the
service provider within thirty (30)
calendar days after the date of receipt of
the invoice for such travel, but not later
than sixty (60) calendar days after the
date the travel began, at the normal and
usual fare or rental charge for a
comparable commercial conveyance of
sufficient size to accommodate all
campaign travelers, including members
of the news media traveling with a
candidate, and security personnel, if
applicable.
(e) Government conveyances. (1) If a
campaign traveler uses an aircraft that is
provided by the Federal government, or
by a State or local government, the
campaign traveler, or the political
committee on whose behalf the travel is
conducted, must pay the governmental
entity either:
(i) The pro rata share per represented
candidate of the normal and usual
charter fare or rental charge for the flight
on a comparable aircraft of sufficient
size to accommodate all campaign
travelers. The pro rata share shall be
calculated by dividing the normal and
usual charter fare or rental charge by the
VerDate Aug<31>2005
14:55 Oct 22, 2007
Jkt 214001
number of different candidates
represented on the flight, regardless of
the total number of campaign travelers
or other passengers. For purposes of this
paragraph, the comparable aircraft need
not accommodate any authorized or
required government personnel and
equipment; or
(ii) The private traveler
reimbursement rate, as specified by the
governmental entity providing the
aircraft, per campaign traveler.
(2) If a campaign traveler uses a
conveyance, other than an aircraft, that
is provided by the Federal government,
or by a State or local government, the
campaign traveler, or the political
committee on whose behalf the travel is
conducted, must pay the government
entity in accordance with paragraph (d)
of this section.
(f) Date and public availability of
payment rate. For purposes of
paragraphs (c), (d), (e), and (g) of this
section, the payment rate must be the
rate available to the general public for
the dates traveled or within seven (7)
calendar days thereof. The payment rate
must be determined by the time the
payment is due under paragraph (c), (d),
(e) or (g) of this section.
(g) Aircraft owned by a candidate or
an immediate member of a candidate’s
family.
(1) For non-commercial travel by a
candidate for Federal office, or a person
traveling on behalf of such candidate,
on an aircraft owned or leased by a
candidate or an immediate family
member of the candidate, the
candidate’s authorized committee must
pay
(i) In the case of travel between cities
served by regularly scheduled first-class
commercial airline service, the lowest
unrestricted and non-discounted firstclass airfare;
(ii) In the case of travel between a city
served by regularly scheduled coach
commercial airline service, but not
regularly scheduled first-class
commercial airline service, and a city
served by regularly scheduled coach
commercial airline service (with or
without first-class commercial airline
service), the lowest unrestricted and
non-discounted coach airfare; or
(iii) In the case of travel to or from a
city not served by regularly scheduled
commercial airline service, the rate for
Senate and Presidential campaign
travelers in paragraph (c)(1) of this
section.
Paragraph (g)(1)—Alternative 1
(Incremental Cost Alternative)
(g) Aircraft owned by a candidate or
an immediate member of a candidate’s
family.
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59965
(1) For non-commercial travel by a
candidate for Federal office, or a person
traveling on behalf of such candidate,
on an aircraft owned or leased by a
candidate or an immediate family
member of the candidate, the
candidate’s authorized committee must
pay the incremental cost of such travel.
The incremental cost includes, but is
not limited to, the cost of fuel and crew,
but does not include depreciation costs.
Paragraph (g)(1)—Alternative 2—(Actual
Value Alternative)
(g) Aircraft owned by a candidate or
an immediate member of a candidate’s
family.
(1) For non-commercial travel by a
candidate for Federal office, or a person
traveling on behalf of such candidate,
on an aircraft owned or leased by a
candidate or an immediate family
member of the candidate, the
candidate’s authorized committee must
pay, in the case of travel on an aircraft
that is owned or leased under a sharedownership or other time-share
arrangement, the hourly, mileage, or
other applicable rate charged the
candidate, corporation, or immediate
family member for the costs of the
travel.
(2) A candidate, or an immediate
family member of the candidate, will be
considered to own or lease an aircraft
under paragraph (g)(1) of this section if
the candidate or the immediate family
member of the candidate has an
ownership interest in an entity that
owns the aircraft, provided that the
entity is not a corporation with publicly
traded shares and that the owning entity
specifies in writing the amount of use of
the aircraft to which that ownership
interest is entitled.
(3) For the purposes of this section, an
‘‘immediate family member’’ of a
candidate is the father, mother, son,
daughter, brother, sister, husband, wife,
father-in-law, or mother-in-law of the
candidate.
(h) Preemption. In all respects, State
and local laws are preempted with
respect to travel in connection with a
Federal election to the extent they
purport to supplant the rates or timing
requirements of 11 CFR 100.93.
(i) Reporting. (1) In accordance with
11 CFR 104.13, a political committee on
whose behalf the unreimbursed travel is
conducted must report the receipt of an
in-kind contribution and the making of
an expenditure under paragraph (b)(2)
of this section.
(2) When reporting a disbursement for
travel services in accordance with this
section, a political committee on whose
behalf the travel is conducted must
report the actual dates of travel for
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which the disbursement is made in the
‘‘purpose of disbursement’’ field.
(j) Recordkeeping. (1) Except as
provided in paragraph (j)(3) of this
section, for travel by aircraft between
cities served by regularly scheduled
first-class or coach commercial airline
service, or for travel to or from a
military base on a government airplane,
the political committee on whose behalf
the travel is conducted shall maintain
documentation of:
(i) The service provider and tail
number (or other unique identifier for
military aircraft) of the aircraft used;
(ii) An itinerary showing the
departure and arrival cities and the
date(s) of departure and arrival, a list of
all passengers on such trip, along with
a designation of which passengers are
and which are not campaign travelers;
and
(iii) The lowest unrestricted nondiscounted airfare available in
accordance with paragraphs (c), (e) and
(f) of this section, including the airline
offering that fare, flight number, travel
service, if any, providing that fare, and
the dates on which the rates are based.
(2) Except as provided in paragraph
(j)(3) of this section, for travel by aircraft
to or from a city not served by regularly
scheduled commercial airline service,
the candidate or political committee on
whose behalf the travel is conducted
shall maintain documentation of:
(i) The service provider and the size,
model, make and tail number (or other
unique identifier for military aircraft) of
the aircraft used;
(ii) An itinerary showing the
departure and arrival cities and the
date(s) of departure and arrival, a list of
all passengers on such trip, along with
a designation of which passengers are
and which are not campaign travelers or
security personnel; and
(iii) The rate for the comparable
charter aircraft available in accordance
with paragraphs (c), (e) and (f) of this
section, including the airline, charter or
air taxi operator, and travel service, if
any, offering that fare to the public, and
the dates on which the rates are based.
(3) For non-commercial travel on
aircraft by any candidate for Federal
office, or a person traveling on behalf of
such candidate, the candidate’s
authorized committee, or the
candidate’s leadership PAC, the
candidate or political committee on
whose behalf the travel is conducted
shall maintain:
(i) The documentation required by
paragraph (j)(2)(i) through (iii) of this
section, and
(ii) Where the travel is aboard an
aircraft owned in part by the candidate
or an immediate family member of the
VerDate Aug<31>2005
14:55 Oct 22, 2007
Jkt 214001
candidate, the document specifying the
amount of use of the aircraft
corresponding to the candidate’s or an
immediate family member’s ownership
interest in the aircraft, as required by
paragraph (g) of this section.
(4) For travel by other conveyances,
the political committee on whose behalf
the travel is conducted shall maintain
documentation of:
(i) The service provider and the size,
model and make of the conveyance
used;
(ii) An itinerary showing the
departure and destination locations and
the date(s) of departure and arrival, a
list of all passengers on such trip, along
with a designation of which passengers
are and which are not campaign
travelers or security personnel; and
(iii) The commercial fare or rental
charge available in accordance with
paragraphs (d) and (f) of this section for
a comparable commercial conveyance of
sufficient size to accommodate all
campaign travelers including members
of the news media traveling with a
candidate, and security personnel, if
applicable.
PART 113—PERMITTED AND
PROHIBITED USES OF CAMPAIGN
ACCOUNTS
4. The authority citation for part 113
would continue to read as follows:
Authority: 2 U.S.C. 432(h), 438(a)(8), 439a,
441a.
5. The heading to part 113 would be
revised to read as set forth above.
6. Part 113 would be amended by
adding a new § 113.5 to read as follows:
§ 113.5 Restrictions on use of campaign
funds for flights on noncommercial aircraft
(2 U.S.C. 439a(c)).
(a) Presidential, vice-presidential and
Senate candidates. Notwithstanding any
other provision of the Act or
Commission regulations, a presidential,
vice-presidential, or Senate candidate,
and any authorized committee or
leadership PAC of such candidate, shall
not make any expenditure for travel on
an aircraft unless the flight is
(1) Commercial travel as provided in
11 CFR 100.93(a)(3)(iv); or
(2) Noncommercial travel as provided
in 11 CFR 100.93(a)(3)(v), and the pro
rata share of the fair market value of
such a flight, as provided in 11 CFR
100.93(c), is paid by the candidate, the
authorized committee, or other political
committee on whose behalf the travel is
conducted, to the owner, lessee, or other
person who provides the aircraft within
seven days after the date on which the
flight is taken.
(b) House candidates.
Notwithstanding any other provision of
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the Act or Commission regulations, a
candidate for the office of
Representative in, or Delegate or
Resident Commissioner to, the
Congress, and any authorized committee
or leadership PAC of such candidate,
shall not make any expenditures, or
receive any in-kind contribution, for
travel on an aircraft unless the flight is
(1) Commercial travel as provided in
11 CFR 100.93(a)(3)(iv); or
(2) Provided by the Federal
government or by a State or local
government.
(c) Exception for aircraft owned or
leased by candidates and immediate
family members of candidates. (1)
Paragraphs (a) and (b) of this section do
not apply to flights on aircraft owned or
leased by the candidate, or by an
immediate family member of the
candidate, provided that the candidate
does not use the aircraft more than the
candidate’s or immediate family
member’s proportionate share of
ownership allows.
(2) A candidate, or an immediate
family member of the candidate, will be
considered to own or lease an aircraft
under the conditions described in 11
CFR 100.93(g)(2).
(3) An ‘‘immediate family member’’ is
defined in 11 CFR 100.93(g)(3).
(d) In-kind contribution. Except as
provided in 11 CFR 100.79, the
unreimbursed value of transportation
provided to any campaign traveler is an
in-kind contribution from the service
provider to the candidate or political
committee on whose behalf, or with
whom, the campaign traveler traveled.
Such contributions are subject to the
reporting requirements, limitations and
prohibitions of the Act.
PART 9004—ENTITLEMENT OF
ELIGIBLE CANDIDATES TO
PAYMENTS; USE OF PAYMENTS
7. The authority citation for part 9004
would continue to read as follows:
Authority: 26 U.S.C. 9004 and 9009(b).
8. Section 9004.7 would be amended
by revising paragraphs (b)(5)(i), (iii), and
(v) and (b)(8) to read as follows:
§ 9004.7
Allocation of travel expenditures.
*
*
*
*
*
(b) * * *
(5)(i) If any individual, including a
candidate, uses a government aircraft for
campaign-related travel, the candidate’s
authorized committee shall pay the
appropriate government entity an
amount equal to the applicable rate set
forth in 11 CFR 100.93(e).
*
*
*
*
*
(iii) If any individual, including a
candidate, uses a government
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conveyance, other than an aircraft, for
campaign-related travel, the candidate’s
authorized committee shall pay the
appropriate government entity an
amount equal to the amount required
under 11 CFR 100.93(d).
*
*
*
*
*
(v) For travel by aircraft, the
committee shall maintain
documentation as required by 11 CFR
100.93(j)(3) in addition to any other
documentation required in this section.
For travel by other conveyances, the
committee shall maintain
documentation of the commercial rental
rate as required by 11 CFR 100.93(j)(4)
in addition to any other documentation
required in this section.
*
*
*
*
*
(8) Non-commercial travel, as defined
in 11 CFR 100.93(a)(3)(v), on aircraft,
and travel on other means of
transportation not operated for
commercial passenger service, is
governed by 11 CFR 100.93.
9. The authority citation for part 9034
would continue to read as follows:
Authority: 26 U.S.C. 9034 and 9039(b).
10. Section 9034.7 would be amended
by revising paragraphs (b)(5) (i), (iii),
and (v) and (b)(8) to read as follows:
Allocation of travel expenditures.
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*
*
*
*
*
(b) * * *
(5)(i) If any individual, including a
candidate, uses a government aircraft for
campaign-related travel, the candidate’s
authorized committee shall pay the
appropriate government entity an
amount not less than the applicable rate
set forth in 11 CFR 100.93(e).
*
*
*
*
*
(iii) If any individual, including a
candidate, uses a government
conveyance, other than an aircraft, for
campaign-related travel, the candidate’s
authorized committee shall pay the
appropriate government entity an
amount equal to the amount required
under 11 CFR 100.93(d).
*
*
*
*
*
(v) For travel by aircraft, the
committee shall maintain
documentation as required by 11 CFR
100.93(j)(3) in addition to any other
documentation required in this section.
For travel by other conveyances, the
committee shall maintain
documentation of the commercial rental
rate as required by 11 CFR 100.93(j)(4)
in addition to any other documentation
required in this section.
*
*
*
*
*
VerDate Aug<31>2005
14:55 Oct 22, 2007
Jkt 214001
Dated: October 18, 2007.
Robert D. Lenhard,
Chairman, Federal Election Commission.
[FR Doc. E7–20901 Filed 10–22–07; 8:45 am]
BILLING CODE 6715–01–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2007–0075; Directorate
Identifier 2007–NM–171–AD]
RIN 2120–AA64
Airworthiness Directives; EMBRAER
Model EMB–120, –120ER, –120FC,
–120QC, and –120RT Airplanes
Federal Aviation
Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
PART 9034—ENTITLEMENTS
§ 9034.7
(8) Non-commercial travel on aircraft,
and travel on other means of
transportation not operated for
commercial passenger service is
governed by 11 CFR 100.93.
SUMMARY: We propose to adopt a new
airworthiness directive (AD) for the
products listed above. This proposed
AD results from mandatory continuing
airworthiness information (MCAI)
originated by an aviation authority of
another country to identify and correct
an unsafe condition on an aviation
product. The MCAI describes the unsafe
condition as:
It has been found that former revisions of
the Maintenance Review Board Report
(MRBR) of the EMB–120( ) aircraft do not
fully comply with some Critical Design
Configuration Control Limitations (CDCCL)
and Fuel System Limitations (FSL). These
limitations are necessary to preclude ignition
sources in the fuel system, as required by
RBHA–E88/SFAR–88 (Special Federal
Aviation Regulation No. 88).
*
*
*
*
*
*
*
The potential of ignition sources, in
combination with flammable fuel
vapors, could result in fuel tank
explosions and consequent loss of the
airplane. The proposed AD would
require actions that are intended to
address the unsafe condition described
in the MCAI.
DATES: We must receive comments on
this proposed AD by November 23,
2007.
You may send comments by
any of the following methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
instructions for submitting comments.
ADDRESSES:
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59967
• Fax: (202) 493–2251.
• Mail: U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue, SE.,
Washington, DC 20590.
• Hand Delivery: U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–40, 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays.
Examining the AD Docket
You may examine the AD docket on
the Internet at https://
www.regulations.gov; or in person at the
Docket Operations office between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays. The AD docket
contains this proposed AD, the
regulatory evaluation, any comments
received, and other information. The
street address for the Docket Operations
office (telephone (800) 647–5527) is in
the ADDRESSES section. Comments will
be available in the AD docket shortly
after receipt.
FOR FURTHER INFORMATION CONTACT: Dan
Rodina, Aerospace Engineer,
International Branch, ANM–116, FAA,
Transport Airplane Directorate, 1601
Lind Avenue, SW., Renton, Washington
98057–3356; telephone (425) 227–2125;
fax (425) 227–1149.
SUPPLEMENTARY INFORMATION:
Comments Invited
We invite you to send any written
relevant data, views, or arguments about
this proposed AD. Send your comments
to an address listed under the
ADDRESSES section. Include ‘‘Docket No.
FAA–2007–0075; Directorate Identifier
2007–NM–171–AD’’ at the beginning of
your comments. We specifically invite
comments on the overall regulatory,
economic, environmental, and energy
aspects of this proposed AD. We will
consider all comments received by the
closing date and may amend this
proposed AD based on those comments.
We will post all comments we
receive, without change, to https://
www.regulations.gov; including any
personal information you provide. We
will also post a report summarizing each
substantive verbal contact we receive
about this proposed AD.
Discussion
ˆ
The Agencia Nacional de Aviacao
¸˜
Civil (ANAC), which is the
airworthiness authority for Brazil, has
issued Brazilian Airworthiness Directive
2007–05–02, effective June 6, 2007
(referred to after this as ‘‘the MCAI’’), to
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Agencies
[Federal Register Volume 72, Number 204 (Tuesday, October 23, 2007)]
[Proposed Rules]
[Pages 59953-59967]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-20901]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 72, No. 204 / Tuesday, October 23, 2007 /
Proposed Rules
[[Page 59953]]
FEDERAL ELECTION COMMISSION
11 CFR Parts 100, 113, 9004, and 9034
[Notice 2007-20]
Candidate Travel
AGENCY: Federal Election Commission.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Federal Election Commission requests comments on proposed
changes to its rules implementing new statutory provisions governing
the rates and timing of payment for non-commercial campaign travel on
aircraft, and a proposed definition of ``Leadership PAC.'' These
proposed changes, consistent with the new statutory provisions, would
restrict and in some cases prohibit Federal candidates and their
political committees from expending campaign funds for non-commercial
air travel. The proposed rules would apply to all Federal candidates,
including publicly funded presidential candidates. No final decisions
have been made by the Commission on any of the proposed revisions in
this Notice. Further information is provided in the supplementary
information that follows.
DATES: Comments must be received on or before November 13, 2007. The
Commission will hold a hearing on these proposed rules on November 15,
2007, at 10 a.m. Commenters wishing to testify at the hearing must so
indicate in their written or electronic comments. Anyone seeking to
testify at the hearing must file written comments by the due date and
must include a request to testify in the written comments.
ADDRESSES: All comments must be in writing, must be addressed to Ms.
Amy L. Rothstein, Assistant General Counsel, and must be submitted in
e-mail, facsimile, or paper copy form. Commenters are strongly
encouraged to submit comments by e-mail or fax to ensure timely receipt
and consideration. E-mail comments must be sent to travel07@fec.gov. If
e-mail comments include an attachment, the attachment must be in Adobe
Acrobat (.pdf) or Microsoft Word (.doc) format. Faxed comments must be
sent to (202) 219-3923, with paper copy follow-up. Paper comments and
paper copy follow-up of faxed comments must be sent to the Federal
Election Commission, 999 E Street, NW., Washington, DC 20463. All
comments must include the full name and postal service address of the
commenter or they will not be considered. The Commission will post
comments on its Web site after the comment period ends. The Commission
hearing on this rulemaking will be held in the Commission's ninth floor
meeting room, 999 E Street, NW., Washington, DC.
FOR FURTHER INFORMATION CONTACT: Ms. Amy L. Rothstein, Assistant
General Counsel, Mr. Joshua S. Blume, Attorney, or Mr. Richard Ewell,
Attorney, 999 E Street, NW., Washington, DC 20463, (202) 694-1650 or
(800) 424-9530.
SUPPLEMENTARY INFORMATION: The Commission is proposing changes to its
rules to implement section 601 of Pub. L. 110-81, 121 Stat. 735, the
``Honest Leadership and Open Government Act of 2007,'' signed September
14, 2007. The new law amended the Federal Election Campaign Act of
1971, as amended (2 U.S.C. 431 et seq.) (``the Act'') by restricting,
and in some cases prohibiting, the expenditure of campaign funds by
candidates for Federal office for non-commercial travel aboard
aircraft. See 2 U.S.C. 439a(c) (henceforth referred to as ``new 2
U.S.C. 439a(c)'' or ``the new law'').
The Commission proposes to implement these new provisions by adding
new section 11 CFR 113.5 to Part 113, which governs the expenditure of
campaign funds by candidates for Federal office and their authorized
political committees. In addition, the Commission is proposing
conforming revisions to 11 CFR 100.93, which provides an exception to
the definition of ``contribution'' for non-commercial travel aboard
aircraft by, or on behalf of, Federal candidates and political
committees, if the candidates and political committees reimburse the
service providers at specified rates. With respect to the scope of the
proposed changes, the Commission presents two alternatives. Under
Alternative 1, the proposed changes would also affect travel by other
persons, such as a staff member of a political party committee,
separate segregated fund (``SSF''), or nonconnected political
committee, if they are not traveling on behalf of a specific candidate.
Under Alternative 2, the proposed changes would affect only candidates
for Federal office and those traveling on behalf of a candidate for
Federal office and his or her authorized committee. The proposed
changes would not alter the Commission's treatment of travel by means
of transportation other than aircraft, or on travel aboard commercial
airliners or charter flights.
In addition, Congress defined the term ``Leadership PAC'' in
section 204(8)(B) of Public Law 110-81. This type of political
committee is subject to certain restrictions under the provisions of
new 2 U.S.C. 439a(c), and is also subject to certain requirements set
forth in another section of Public Law 110-81 pertaining to the
practice of ``bundling'' contributions. See section 204 of Public Law
110-81. The Commission is therefore proposing that the term be defined
in the Commission's regulations at 11 CFR 100.5(e) (examples of
``political committees'').\1\
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\1\ The Commission is initiating a separate rulemaking to
address the bundling provisions of the new law and intends to issue
a Notice of Proposed Rulemaking shortly.
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I. Background
A. The Current Statutory and Regulatory Framework
The Act defines a ``contribution'' to include ``any gift,
subscription, loan, advance, or deposit of money or anything of value
made by any person for the purpose of influencing any election for
Federal office.'' 2 U.S.C. 431(8)(A)(i); see also 11 CFR 100.52(a). The
phrase ``anything of value'' encompasses ``the provision of any goods
or services without charge or at a charge that is less than the usual
and normal charge for such goods or services.'' 11 CFR 100.52(d)(1).
When goods or services are provided at less than the usual and normal
charge, ``the amount of the in-kind contribution is the difference
between the usual and normal charge for the goods or services at the
time of the contribution and the amount charged the political
committee.'' Id.
As a result, candidates who travel aboard a commercial airliner or
other conveyance for which a fee is normally
[[Page 59954]]
charged must pay the normal and usual charge for that service in order
to avoid receiving an in-kind contribution from the person providing
the travel service. Such in-kind contributions would be prohibited if
provided by certain entities, including corporations, labor
organizations, Federal contractors, and foreign nationals. See 2 U.S.C.
441b, 441c, and 441e; 11 CFR 110.20, 114.2(b), and 115.2. Even where
the in-kind contributions are not prohibited, they would be subject to
the contribution limits in the Act and Commission regulations. See 2
U.S.C. 441a through 441k; 11 CFR Parts 110, 114, and 115.
1. Current 11 CFR 100.93--Payment for Non-Commercial Travel
The normal and usual charge for travel aboard a commercial airliner
is the publicly available price for a ticket, and the normal and usual
charge for a chartered jet is the publicly available charter or lease
rate. The normal and usual charge for travel aboard a non-commercial
flight, however, may not be as apparent. For example, there is
generally not a ticket price for a seat aboard a corporate jet that is
operated exclusively for the private travel of the corporation's
executives and their guests. Because candidates for Federal office have
traveled in the past on these privately operated flights, the
Commission has provided specific guidance in its regulations regarding
the rate of reimbursement that candidates and others must pay to avoid
receiving an in-kind contribution for travel aboard such flights.
On December 15, 2003, the Commission promulgated final rules adding
11 CFR 100.93. See Final Rules and Explanation and Justification for
Travel on Behalf of Candidates and Political Committees, 68 FR 69,583
(Dec. 15, 2003) (``2003 E&J''). Those final rules established an
exception from the definition of contribution for payments at specified
rates for non-commercial travel in connection with a Federal election.
The payment required for non-commercial air travel by ``campaign
travelers''--a term that includes individuals traveling in connection
with elections for Federal office on behalf of candidates or political
committees, and members of the news media traveling with a candidate--
depends on whether the travel is between cities served by regularly
scheduled commercial airline service, and whether that service is
available at a first-class or coach rate. See 11 CFR 100.93(a)(3)(i)
and 100.93(c). If travel between the origin and destination cities is
regularly served by commercial first-class airline service, then a
first-class rate applies. 11 CFR 100.93(c)(1). If such travel is served
at both origin and destination by coach-class commercial service and
the origin city is not served by first-class service, then a coach-
class rate applies. 11 CFR 100.93(c)(2). If either the origin or the
destination city is not served by commercial airline service, then the
rate is the normal and usual charter fare for a comparable airplane
sufficient in size to accommodate all campaign travelers. 11 CFR
100.93(c)(3). The same rates apply to travel on an airplane provided by
a government entity, unless the travel is to or from a military base or
other relatively publicly inaccessible location.\2\ The candidate or
political committee responsible for the reimbursement must pay the
service provider within seven business days of the trip. 11 CFR
100.93(c).
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\2\ If such is the case, then a first-class rate applies, drawn
from the closest city with regular first-class commercial service.
11 CFR 100.93(e)(1).
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2. Current 11 CFR 9004.7 and 9034.7--Travel by Presidential and Vice-
Presidential Candidates Accepting Public Funds
Candidates for President of the United States may elect to receive
matching funds from the Federal government to contest their primary
elections and presidential nominees may elect to receive public funding
to contest the general election. In both cases, the candidates must
agree, among other things, to use the public funds they receive solely
for ``qualified campaign expenses'' and not to exceed specified
expenditure limits. 2 U.S.C. 441a(b)(1)(A) and (B), 26 U.S.C.
9004(c)(1), 9038(b)(2).
The Commission has promulgated separate regulations at 11 CFR
9004.7(b)(5)(i) and (v), (b)(8), and 9034.7(b)(5)(i) and (v) and
(b)(8), setting forth the appropriate reimbursement rates that publicly
funded candidates must use for campaign-related travel on non-
commercial transportation. While 11 CFR 100.93 is focused on the
potential underpayment for travel resulting in a contribution, 11 CFR
9004.7 and 9034.7 are focused on the appropriate use of public funds,
and thus on whether, and to what extent, expenses for campaign-related
travel constitute qualified campaign expenses for which the candidate
may use public funds. The rates and recordkeeping requirements for
presidential and vice-presidential candidates accepting public funds
are the same as those in 11 CFR 100.93 and are mainly set forth through
cross-references to 11 CFR 100.93.
II. Revisions to 2 U.S.C. 439a--Use of Campaign Funds
New 2 U.S.C. 439a(c) prohibits House, Senate, and presidential
candidates from making any expenditure for non-commercial travel on
aircraft except at specified rates and subject to certain conditions.
An ``expenditure'' includes any payment by any person ``made for the
purpose of influencing any election for Federal office.'' 2 U.S.C.
431(9)(A)(i). Like the current regulations at 11 CFR 100.93, the new
law focuses on the appropriate reimbursement rates for non-commercial
travel. Travel on commercial flights is still governed by the current
requirements for reimbursement at the normal and usual charge. The new
law, however, directly limits expenditures by a candidate, candidate's
authorized committee, or a leadership PAC, rather than merely
specifying how to avoid the receipt of an in-kind contribution as in 11
CFR 100.93.
The new law's rates and conditions under which candidates may spend
campaign funds for aircraft travel differ depending on the office
sought. Presidential and Senate candidates may pay for their pro rata
share of the fair market value of a flight, which is determined by
dividing the fair market value of the normal and usual charter fare or
rental charge for a comparable plane of comparable size by the number
of candidates on board the plane. 2 U.S.C. 439a(c)(1). The authorized
committees and leadership PACs of House candidates are, however,
generally prohibited from using any campaign funds to pay for non-
commercial flights, except for flights on aircraft operated by a
Federal or State government entity. 2 U.S.C. 439a(c)(2). Aircraft owned
by candidates or their immediate family members are exempt from the
prohibitions and rate requirements described above. 2 U.S.C.
439a(c)(3).
III. Proposed 11 CFR 100.5(e)(6)--Definition of ``Leadership PAC''
The term ``Leadership PAC'' is defined in section 204(a) of Public
Law 110-81 (2 U.S.C. 434(i)(8)(B)) as ``a political committee that is
directly or indirectly established, financed, maintained or controlled
by [a] candidate [for Federal office] or [an] individual [holding
Federal office] but which is not an authorized committee of the
candidate or individual and which is not affiliated with an authorized
committee of the candidate or individual, except that such term does
not include a political committee of a political party.'' The term
``PAC'' is an
[[Page 59955]]
acronym for ``political action committee,'' which is a term generally
used to refer to all political committees other than authorized
committees and committees of a political party.\3\
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\3\ The term ``PAC'' has not been a term of art in the law or in
Commission regulations. PACs sponsored by a corporation or a labor
organization are generally described in the Commission's regulations
as separate segregated funds (``SSFs''). See 2 U.S.C. 441b(b)(2)(C);
11 CFR 100.5(b). PACs that lack corporate or labor sponsorship are
referred to in the regulations as ``nonconnected committees.'' See,
e.g., 11 CFR 104.10 and 106.6(a).
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The new definition of leadership PAC is relevant to two areas of
the new law that fall within the Commission's purview: (1) The new
restrictions on candidate travel that would be implemented through both
proposed sections 11 CFR 100.93 and 113.5, and (2) the disclosure
requirements in Section 204 of the new law for contributions bundled by
lobbyists. In the provision relevant to this rulemaking, the new law
generally prohibits ``candidates for election for the office of
Representative in, or Delegate or Resident Commissioner to, the
Congress, an authorized committee and a leadership PAC'' from making
expenditures for non-commercial air travel. Public Law 110-81, section
601(a) (codified at 2 U.S.C 439a(c)(2)) (emphasis added).
The Commission proposes to incorporate a definition of ``leadership
PAC'' into 11 CFR 100.5, which is the general definition of ``political
committee.'' Specifically, ``leadership PAC'' would be added to the
list of different types of political committees in 11 CFR 100.5(e),
with the new term added at 11 CFR 100.5(e)(6). The proposed definition
mirrors the definition in the new law.
The Commission proposes to incorporate the definition of
``leadership PAC'' into the general definition section in 11 CFR Part
100, rather than within the travel rules themselves, to promote
consistency and economy within the structure of its regulations.
The definition will impact several sections of the Commission's
regulations, including proposed 11 CFR 100.93, 11 CFR 113.5, and the
new bundling regulations the Commission intends to promulgate in a
separate rulemaking. The Commission seeks comments on the content and
placement of this new definition.
IV. Proposed Revisions to 11 CFR 100.93--Payment for Travel Aboard
Aircraft and Other Means of Transportation
The majority of the Commission's current guidance regarding non-
commercial air travel is provided in 11 CFR 100.93, which provides an
exception to the definition of ``contribution'' for non-commercial
travel if the service provider is reimbursed for the travel at the
specified rates. Several of the reimbursement rates permitted under
current 11 CFR 100.93 are inconsistent with the new statutory
requirements. For example, the statute requires a candidate for
President or U.S. Senate to reimburse the service provider at the
comparable charter rate, whereas current 11 CFR 100.93 allows
reimbursement at the rate of the first class or coach airfare for
campaign travel between two cities served by regularly scheduled
commercial airline service. Therefore, the Commission is proposing
conforming changes and clarifications in 11 CFR 100.93.
The Commission wishes to clarify that, although it is proposing
changes to only some of the provisions in 11 CFR 100.93, it may make
further revisions to this section in its final rules, in response to
any public comments and additional information that it may receive
regarding the proposed rules. The Commission therefore invites comments
on the entirety of 11 CFR 100.93 and is opening the entire section for
comments through this Notice of Proposed Rulemaking. Commenters
favoring retention of current provisions of 11 CFR 100.93 should submit
comments to that effect. Conversely, those preferring additional
changes to 11 CFR 100.93 beyond those proposed should submit comments
to that effect. In particular, the Commission seeks comments on the
extent to which new 2 U.S.C. 439a(c) should be implemented solely
through revisions to 11 CFR 100.93, rather than through the addition of
11 CFR 113.5.
a. General Scope of Rule--Travel on Behalf of Candidates
New 2 U.S.C. 439a specifies that ``a candidate for election for
Federal office * * * or any authorized committee of such a candidate,
may not make any expenditure for a flight on an aircraft unless--* *
*'' 2 U.S.C. 439a(c)(1) (emphasis added). Given the inclusion of
authorized committees in this language, the proposed rule, consistent
with the current rule, would apply to the same range of individuals
covered by the term ``campaign traveler'' in the current rule. Campaign
traveler is defined in part as ``any individual traveling in connection
with an election for Federal office on behalf of a candidate.'' 11 CFR
100.93(3)(i)(A). In other words, the proposed rule would apply to
travel by candidates themselves, and also those traveling on behalf of
candidates or their authorized committees, such as campaign staff. See
proposed 11 CFR 100.93(c)(1).
This interpretation is also consistent with the personal use
prohibitions set out by Congress in 2 U.S.C. 439a(b) and the
Commission's regulatory interpretation of that section, which apply to
personal use by ``any person.'' See, e.g., 11 CFR 113.1(g) (defining
personal use as ``any use of funds in a campaign account of a present
or former candidate to fulfill a commitment, obligation or expense of
any person that would exist irrespective of the candidate's campaign or
duties as a Federal officeholder'') (emphasis added); see also
Explanation and Justification for final rules regarding Expenditures;
Reports by Political Committees; Personal Use of Campaign Funds, 60 FR
7862, 7864 (Feb. 9, 1995) (``Section 439a states that no campaign funds
`may be converted by any person to any personal use.' ''). Thus, any
use of campaign funds that would exist irrespective of the campaign or
the duties of a Federal officeholder is personal use under current
Commission regulations, regardless of whether the beneficiary is the
candidate, a family member of the candidate, or some other person.
Moreover, the Commission notes that Congress, in its amendments to
the Senate rules, set out an approach to reimbursement for non-campaign
travel that includes all Congressional staff, not just the Federal
officeholders themselves. That amendment requires reimbursement for
non-commercial travel aboard aircraft at the normal and usual charter
rate for a comparable aircraft of comparable size, ``as determined by
dividing such cost by the number of Members, officers, or employees of
Congress on the flight.'' Public Law 110-81, Section 544(c)(1),
amending Paragraph 1(c)(1) of rule XXXV of the Standing Rules of the
Senate (emphasis added).
The Commission seeks comments on this proposed interpretation of
the new law. Is there any evidence that suggests that Congress intended
to exclude campaign staff, or others traveling on the candidate's
behalf, from the general scope of the rule?
A. Proposed 100.93(a)--Scope and Definitions
1. Proposed 11 CFR 100.93(a)(3)(i)--Definition of ``Campaign Traveler''
A ``campaign traveler'' is defined as ``[a]ny individual traveling
in connection with an election for Federal office on behalf of a
candidate or political committee'' and ``[a]ny member of the news media
traveling with a
[[Page 59956]]
candidate.'' 11 CFR 100.93(a)(3)(i). The Commission proposes to add
``Any candidate for Federal office or'' at the beginning of that
definition to clarify that a candidate himself or herself would be
included within the definition of ``campaign traveler.'' The Commission
seeks comments on this proposed clarification and whether any
additional changes to the definition would be appropriate.
2. Proposed 11 CFR 100.93(a)(3)(iv) and (v)--Definitions of
``Commercial Travel'' and ``Non-Commercial Travel''
The Commission's current regulations distinguish between commercial
and non-commercial air travel based on the certification system of the
Federal Aviation Administration (FAA). Specifically, the Commission's
rules in 11 CFR 100.93 apply to all airplanes not licensed by the FAA
to operate for compensation or hire under 14 CFR parts 121, 129, or
135. 11 CFR 100.93(a)(1)(i).
The new law's restrictions on expenditures for air travel by
presidential and U.S. Senate candidates are focused on the FAA's
certification and safety requirements, but do not reference specific
FAA regulatory provisions. In order to simplify and align the
Commission's regulations with the new statutory language, the
Commission is proposing to replace its reliance on specific FAA
regulatory provisions with the new terms ``commercial travel'' and
``non-commercial travel.'' The definition of ``commercial travel''
would follow the new statutory language: travel aboard an aircraft
``operated by an air carrier or commercial operator certificated by the
Federal Aviation Administration if the flight is required to be
conducted under air carrier safety rules, or, in the case of travel
which is abroad, by an air carrier or commercial operator certificated
by an appropriate foreign civil aviation authority if the flight is
required to be conducted under air carrier safety rules.'' Proposed 11
CFR 100.93(a)(3)(iv). Conversely, the proposed definition of ``non-
commercial air travel'' would encompass travel not included in the
definition of ``commercial travel.'' Proposed 11 CFR 100.93(a)(3)(v).
The Commission seeks comments on these proposed definitions. Is
there any difference between the universe of aircraft encompassed by
the new term ``non-commercial travel'' and the aircraft included in
current 11 CFR 100.93(c) (``an airplane not licensed by the Federal
Aviation Administration to operate for compensation or hire under 14
CFR parts 121, 129, or 135'')? Would additional guidance in the form of
references to FAA regulatory provisions be helpful in discerning what
aircraft qualify as ``non-commercial travel,'' or is the proposed
language sufficiently clear? In addition, the Commission seeks comments
on whether additional explanation should be provided to address flights
conducted in foreign countries and, if so, what it should be.
The Commission also seeks comments on whether the definitions of
``commercial travel'' and ``non-commercial travel'' should specifically
address more complex multiple ownership or leasing arrangements, such
as arrangements in which some of the owners of an aircraft are
commercial operators certificated by the FAA but others are not.
B. Proposed 11 CFR 100.93(c)(1)--Non-Commercial Air Travel by
Candidates for President, Vice-President, and U.S. Senate
New 2 U.S.C. 439a(c)(1)(B) requires candidates for President, Vice
President, and U.S. Senate to pay their ``pro rata share of the fair
market value'' of non-commercial flights aboard aircraft. The pro rata
share is ``determined by dividing the fair market value of the normal
and usual charter fare or rental charge for a comparable plane of
comparable size by the number of candidates on the flight.'' Id.
Because the statutory language is specific that the ``number of
candidates on the flight'' determines the ``pro rata share,'' the
Commission proposes to define ``pro rata share of the fair market value
of a flight'' based solely on the number of candidates on the flight,
regardless of whether there are other campaign travelers or passengers
aboard. Moreover, because the statutory language applies to
expenditures made not only by candidates, but also by authorized
committees, the Commission proposes to define ``pro rata share'' based
on the number of candidates represented on a flight. See proposed 11
CFR 100.93(c)(1) and (3). A candidate is represented on a flight if a
person is traveling on behalf of that candidate, the candidate's
authorized committee, or the candidate's leadership PAC.\4\ See
proposed 11 CFR 100.93(c)(1). This reimbursement rate does not apply to
travel aboard government aircraft or aircraft owned by a candidate or a
member of candidate's immediate family, which are covered under
proposed section 100.93(e) and (g), respectively, and discussed below.
See subsections F and G of this section. This reimbursement rate also
would not apply when a candidate or representative of the candidate is
traveling on behalf of another committee (such as a political party
committee), rather than on behalf of the candidate's own campaign.
Reimbursement for a candidate's travel on behalf of another committee
is the responsibility of the committee on whose behalf the travel
occurs, at the appropriate reimbursement rate for that committee as set
forth in proposed 11 CFR 100.93(c).
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\4\ See discussion of leadership PACs in subsection E.4 of this
section.
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1. Application of Proposed Rule
Candidate A, Candidate B, and Candidate B's campaign manager travel
on a plane on behalf of their respective campaigns, along with PAC
Representative P traveling on behalf of the PAC. The pro rata share of
the fair market value of the flight would be determined by dividing the
normal and usual charter rate for the plane by two because there are
two candidates represented on the flight (Candidate A and B). Each
candidate, or the candidate's authorized committee, would therefore be
required to pay 50% of the charter rate to avoid receiving an in-kind
contribution from the non-commercial aircraft's owner. Because the full
costs of the flight would be reimbursed by the candidate travelers
(i.e., Candidate A and Candidate B), and the candidate committees would
fully compensate the aircraft's owner for the costs of the flight, PAC
Representative P's travel would not need to be reimbursed. The
Commission invites comment on whether this result--PAC Representative P
traveling without paying fair market value for the cost associated with
her travel--should be treated as an in-kind contribution to the PAC
from one or more of the candidates paying for the cost of the flight.
If so, what would the value be? If the value of the travel by a non-
candidate traveler is a reportable expenditure by one or more of the
candidates when the non-candidate traveler is the representative of a
political committee, should the expenditure also be a reportable
expenditure if the non-candidate traveler is not a political committee
representative? Does it matter whether the non-candidate traveler is
traveling at the invitation of one of the candidates or at the
invitation of the service provider?
Repayment under the proposed rule would not vary based on the
number of non-campaign travelers on the plane. For example, Candidate
A, Candidate B, Candidate B's campaign manager and PAC Representative P
travel on a twenty-seat plane with six other
[[Page 59957]]
passengers that are not campaign travelers. Candidate A and Candidate B
would still be required to pay 50% each of the entire normal and usual
charter fare or rental charge for a ``comparable plane'' seating twenty
passengers. Because the candidate committees would fully compensate the
aircraft's owner for the costs of the flight, PAC Representative P and
the six additional travelers would not be required to provide
reimbursement.
2. Per Represented Committee Alternative
As an alternative, the Commission proposes requiring reimbursement
based on the number of represented committees of any type, rather than
the number of represented candidates or candidate committees. The
Commission proposes two variations of this alternative.
(a) For example, Candidate A, Candidate B, and Candidate B's
campaign manager travel on a plane on behalf of their respective
campaigns, along with PAC Representative P traveling on behalf of the
PAC. The pro rata share of the fair market value of the flight would be
determined by dividing the normal and usual charter rate for the plane
by three because there are three represented committees on the flight
(Candidate A, Candidate B, and PAC). Each committee would be required
to pay 33% of the charter rate to avoid receiving an in-kind
contribution from the aircraft's owner.
(b) Using the same hypothetical situation set forth above, PAC
Representative P would then have the option of paying either 33% of the
calculated charter rate, or the amount that would be required under
current 11 CFR 100.93.
3. Per Passenger Alternative
As an alternative, the Commission proposes requiring reimbursement
only for the portion of the normal and usual charter rate that reflects
the number of candidate representatives as a percentage of all
passengers on the aircraft.
For example, Candidate A, Candidate B, and Candidate B's campaign
manager travel on a plane on behalf of their respective campaigns,
along with PAC Representative P traveling on behalf of the PAC. The pro
rata share of the fair market value of the flight would be determined
by dividing the normal and usual charter rate for the plane by four
because there are four passengers on the flight. Each passenger would
therefore be required to pay \1/4\, or 25%, of the charter rate to
avoid receiving a contribution. Candidate A and PAC, with one passenger
each, would pay 25% each, while Candidate B, with two passengers would
be responsible for 50% of the charter rate.
Under this alternative, the repayment would also vary based on the
number of non-campaign travelers on the plane. For example, Candidate
A, Candidate B, Candidate B's campaign manager, and PAC Representative
P travel on a twenty-seat plane with six other passengers who are not
candidates or are not traveling on behalf of candidates. Because
Candidate A was only one passenger among ten, Candidate A would be
required to pay 10% of the normal and usual charter fare or rental
charge for a ``comparable plane'' seating twenty passengers. Candidate
B, with two passengers, would pay 20%, and PAC, with one passenger,
would pay 10%.
4. Comparable Aircraft Alternative
As a further alternative, the Commission proposes to follow the
approach in its current regulations and permit reimbursement at the
normal and usual charter rate or rental charge for an aircraft of
sufficient size to carry the campaign travelers. See current 11 CFR
100.93(c)(3) (requiring reimbursement of ``the normal and usual charter
fare or rental charge for a comparable commercial airplane of
sufficient size to accommodate all campaign travelers''). Under this
approach, the campaign committee would be responsible for paying the
normal and usual charter rate for a plane of sufficient size to seat
its campaign travelers, rather than the rate for a plane comparable (in
terms of seating capacity) to the one flown. For example, Candidate A,
Candidate B, Candidate B's campaign manager, and PAC Representative P
travel on a twenty-seat plane with six other passengers who are not
candidates and are not traveling on behalf of candidates. Under this
approach, Candidate A, Candidate B, Candidate B's campaign manager, and
PAC Representative P would collectively be responsible for reimbursing
the aircraft's owner an amount equivalent to the normal and usual
charter fare or rental charge for a ``comparable plane'' that could
seat four passengers. Each candidate or committee must pay its pro rata
share of that amount.
Under a variation of this alternative, each campaign traveler would
be required to pay the normal and usual charter fare or rental charge
for a ``comparable plane'' able to accommodate only himself and those
traveling on his behalf. Thus, Candidate A would be required to pay the
normal and usual cost of a ``comparable plane'' that can seat one
passenger. Similarly, Candidate B would be required to pay the normal
and usual cost of a ``comparable plane'' that can seat two passengers.
The Commission seeks comments on this approach and the presented
alternatives. In addition, the Commission seeks comments on any other
calculations that might be more appropriate.
C. Proposed 11 CFR 100.93(c)(2)--Non-Commercial Air Travel by
Candidates for the House of Representatives
New 2 U.S.C. 439a(c)(2) states that ``in the case of a candidate
for election for the office of Representative in, or Delegate or
Resident Commissioner to, the Congress [hereinafter ``House
candidates''], an authorized committee and a leadership PAC of the
candidate may not make any expenditure'' for non-commercial air travel,
with exceptions for travel on government airplanes and aircraft owned
by the candidate or members of the candidate's immediate family. Both
exceptions are discussed below. The effect of this provision is
generally to prohibit travel by House candidates on non-commercial
aircraft. Proposed 11 CFR 100.93(c)(2)(i) would reflect new 2 U.S.C.
439a(c)(2) by prohibiting expenditures by House candidates for non-
commercial travel on behalf of that candidate, the candidate's
authorized committee, or the candidate's leadership PAC. The new law
expressly applies to expenditures by authorized committees and
leadership PACs of House candidates, including expenditures made by the
candidates themselves on behalf of their authorized committees.
Proposed 11 CFR 100.93(c)(2) would apply not only to House candidates,
but also to persons traveling on behalf of such candidate, the
candidate's authorized committee, or the candidate's leadership PAC.
This prohibition does not apply when the travel would not be considered
an expenditure by the candidate, candidate's authorized committee, or
candidate's leadership PAC. For example, travel by a House candidate on
behalf of a non-House candidate, party committee, or non-candidate
committee would be required to be reimbursed by such other committee at
the respective rate set forth for travel on behalf of that candidate or
committee. The Commission seeks comment on this approach.
The Commission seeks comments on the treatment of House candidate
travel in proposed 11 CFR 100.93(c)(2). Should House candidates be
permitted to travel on non-commercial aircraft on
[[Page 59958]]
behalf of their own campaigns if the cost of the travel is provided as
a permissible in-kind contribution? For example, if the travel was
provided by a permissible source and the costs of the travel were below
the contribution limit, should a non-candidate committee be able to
reimburse the travel costs as an in-kind contribution to the candidate?
The proposed expenditure regulations, discussed below, prohibit such
in-kind contributions. See proposed 11 CFR 113.5(b). If in-kind
contributions are allowed, at what rate should their value be
calculated for reimbursement and reporting purposes?
D. Proposed 11 CFR 100.93(c)(3)--Non-Commercial Air Travel by Other
Campaign Travelers
The Commission proposes two alternatives with respect to non-
commercial air travel by non-candidate campaign travelers.
Alternative 1
The Commission notes that the non-candidate reimbursement rate is
not addressed in new 2 U.S.C. 439a(c).\5\ These proposed changes are
intended to promote uniformity and simplicity in the regulation, and
make the regulation easier to understand. The Commission's long-
standing travel regulations addressed travel only by candidates or on
behalf of candidates. See former 11 CFR 114.9(e). In 2003, the
Commission extended its travel regulations to cover all travel in
connection with a Federal election, stating, ``By establishing a single
rate for travel reimbursement, the new rules will promote greater
uniformity among all individuals traveling in connection with a Federal
election on behalf of a political committee.''
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\5\ The statute does address payments by political committees
other than authorized committees in describing the reimbursement
rate for Senate, Vice Presidential, and Presidential candidates. See
2 U.S.C. 439a(c)(1)(B) (``the candidate, the authorized committee,
or other political committee pays * * *'') (emphasis added).
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Against this background, as one alternative, the Commission is
proposing changes to the current reimbursement rate for campaign
travelers who are not traveling on behalf of candidates. For example,
this rate would apply to individuals traveling on behalf of a political
party committee, SSF, or nonconnected committee. Under the proposed
rule, the provider must be reimbursed at the pro rata share of the fair
market value of such travel. Proposed 11 CFR 100.93(c)(3). The pro rata
share is based on the number of different committees represented on the
flight, and is calculated in the same manner as reimbursement for
travel on behalf of Senate, Vice Presidential, or Presidential
candidates under proposed 11 CFR 100.93(c)(1). For example, if a non-
commercial flight carried two PAC A campaign travelers and one PAC B
campaign traveler, each PAC would be responsible for 50% of the fair
market value of the flight.
This rate does not apply when the travel is shared with a candidate
or person traveling on behalf of a candidate. The Commission is
proposing this alternative to avoid permitting outside organizations to
subsidize a candidate's travel. Travel on an aircraft that includes a
campaign traveler flying on behalf of a candidate, candidate's
authorized committee, or candidate's leadership PAC, must be fully
reimbursed by that candidate, candidate's committee or, when
permissible, the candidate's leadership PAC. No reimbursement would be
required by the non-candidate travelers. See proposed 11 CFR
100.93(c)(3). For example, if a non-commercial flight carried two PAC A
campaign travelers, one PAC B campaign traveler, and Senator A,
traveling on behalf of his or her campaign, Senator A or Senator A's
campaign committee would be responsible for the full fair market value
of the flight. PAC A and PAC B would not have to reimburse for the
flight costs.
The Commission invites comment on whether this result should be
treated as an in-kind contribution to the PACs from Senator A. Does it
matter whether or not the non-candidate travelers are representatives
of political committees? If the value of the travel by the non-
candidate travelers is a reportable expenditure by Senator A when the
non-candidate travelers are political committee representatives, should
the expenditure also be a reportable expenditure if the non-candidate
travelers are not political committee representatives? Does it matter
whether the non-candidate travelers are traveling at the invitation of
Senator A or at the invitation of the service provider?
Alternative 2
Under this alternative, the Commission proposes to retain the
existing reimbursement rate structure for non-candidate travel. Because
non-candidate travel is not addressed in the new law, the existing rate
structure would remain the same for all campaign travelers not
traveling on behalf of a candidate or that candidate's authorized
committee (i.e., campaign travelers traveling on behalf of political
party committees, SSFs, and other non-authorized committees). The
Commission notes that this might result in the service provider being
paid more than the fair market value of the flight. Does the
possibility of such ``overcompensation'' to the service provider
represent a concern under FECA? And, if so, in what way?
The Commission seeks comment on this approach. Should the
Commission interpret the fact that new 2 U.S.C. 439a(c) does not
address non-candidate travel as a form of legislative acquiescence to
the Commission's current regulations on non-candidate travel
reimbursement? Do the first class and coach air fare rates reflect the
fair market value of the services provided? Should the Commission adopt
a different reimbursement rate for non-candidate travel, such as the
per committee or per passenger alternatives discussed above?
E. Additional Proposed Revisions to 11 CFR 100.93
1. Members of the Media and Security Personnel
Members of the news media ``traveling with a candidate'' for
Federal office are expressly included within the definition of
``campaign traveler'' in the Commission's current rules. See 11 CFR
100.93(a)(3)(i)(B). The Commission is not proposing changes to this
definition. Under the current rules, when a member of the media is
traveling with a candidate, that candidate's committee is ultimately
responsible for paying the service provider for the full costs of the
travel, but may seek reimbursement from the media for the media's
portion of the travel expenses.\6\ The Commission proposes to revise 11
CFR 100.93(b)(1)(iii) to ensure that members of the media would not be
permitted to relieve the candidates with whom they travel from
responsibility for paying the service provider the full normal and
usual charter rate or rental charge for travel on an aircraft, pursuant
to proposed 11 CFR 100.93(c)(1). Members of the media would still be
permitted to reimburse the service provider for travel on conveyances
other than aircraft. The Commission seeks comments on this approach.
Should the Commission instead continue to allow reimbursement from
members of the
[[Page 59959]]
media for travel on aircraft? At what rate should this reimbursement
take place, for example, should it be calculated at a portion of the
charter rate or at a first class rate?
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\6\ ``If a member of the news media elects to have the
candidate's authorized committee pay for the media's travel rather
than paying the service provider directly, he or she may do so and
the candidate's authorized committee is permitted to seek
reimbursement from the media. Ultimately it is the candidate's
responsibility to ensure that the service provider is reimbursed for
the value of the transportation provided to all persons traveling
with the candidate.'' 2003 E&J at 69586. See also 11 CFR 9004.6 and
9034.6.
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Security personnel are treated differently under the Commission's
current rules. Under the current rules, security personnel are not
necessarily considered ``campaign travelers,'' but could qualify as
such depending on the nature of any additional services that they
provide a candidate. Compare 11 CFR 100.93(a)(3)(i)(A) with
100.93(c)(3) and (d). For example, if Secret Service personnel travel
with a candidate for Federal office to the candidate's fundraiser
aboard a government airplane, the candidate's authorized committee
would not be required to pay for the Secret Service member's travel
under the current rules unless the Secret Service agent otherwise
qualified as a campaign traveler or the flight was required to be
reimbursed at the usual charter rate. See current 11 CFR 100.93(c)(3)
(calculation of the usual charter rate requires ``comparable commercial
conveyance of sufficient size to accommodate all campaign travelers * *
* and security personnel'') (emphasis added) and 11 CFR
100.93(e)(1)(ii). Committees can then seek reimbursement from the
Secret Service for their portion of the travel expenses. See, e.g.,
Advisory Opinion 1992-38 (Clinton/Gore) (loan proposal premised on
reimbursement from the Secret Service); see also 11 CFR 9004.6 and
9034.6.
Under the proposed rules, when security personnel travel with a
candidate or person traveling on behalf of a candidate, that
candidate's committee would be responsible for the full costs of the
travel. See proposed 11 CFR 100.93(c)(1). However, if the travel occurs
on a government aircraft, the security personnel would not be included
in the calculation. See proposed 11 CFR 100.93(e)(1). Should the
Commission allow reimbursement from security personnel for travel on
non-commercial, non-governmental aircraft? At what rate should this
reimbursement take place, for example, should it be calculated at a
portion of the charter rate or at a first class rate? Under current
regulations, how and under what circumstances do committees seek
reimbursement for travel expenses from the U.S. Secret Service?
2. ``Comparable Plane of Comparable Size''
New 2 U.S.C. 439a(c)(1)(B) requires that the candidate or the
candidate's authorized committee use the fair market value of a
``comparable plane of comparable size'' for purposes of calculating the
appropriate charter rate. The Commission interprets ``comparable size''
as an aircraft with similar physical dimensions that is able to carry a
similar number of passengers.\7\
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\7\ The Commission's current rules at 11 CFR 100.93 distinguish
between travel aboard an ``airplane'' and travel aboard all other
conveyances, including helicopters. See 11 CFR 100.93(a)(3)(ii)
(definition of ``service provider'' focuses on ``person who makes
the airplane or other conveyance available''), 11 CFR 100.93(c)
(``travel by airplane'') and 11 CFR 100.93(d) (``other means of
transportation'' includes ``any other means of transportation'' and
specifically lists helicopters). For internal consistency and to
promote uniformity within its regulations and avoid confusion, the
Commission proposes to replace all references to ``airplanes'' in 11
CFR 100.93 with ``aircraft.'' The primary impact would be that
travel aboard a helicopter would be reimbursed at the pro rata share
of the fair market value of the flight.
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The Commission interprets ``comparable plane'' as an aircraft of
similar make and model as the airplane that actually makes the trip,
with the same amenities as that airplane. This interpretation is
consistent with the Commission's current interpretation of a similar
term, ``comparable commercial airplane,'' in the current rules. See 11
CFR 100.93(c)(3); see also proposed 11 CFR 100.93(c)(3)(iii). As
explained in the 2003 E&J:
a ``comparable commercial airplane'' means an airplane of similar
make and model as the airplane that actually makes the trip, and
with the same amenities as that airplane. For example, in Advisory
Opinion 1984-48, the Commission interpreted a comparable airplane as
being ``of the same type (e.g., jet aircraft versus prop plane) and
services offered (e.g., plane with dining service or lavatory versus
one without)'' as the plane actually used. The Commission further
explained that when a candidate used a twin engine prop jet, a
single engine, prop aircraft would not be a comparable aircraft. The
term ``comparable commercial airplane'' is intended to require these
distinctions as well as other differences such as when a plane is
chartered with a crew or without, or with or without fuel.
2003 E&J at 69588-69589.
The Commission seeks comments on this approach.
3. Presidential and Vice-Presidential Candidates Accepting Public
Financing
The Commission proposes to continue its policy of promoting equal
treatment of travel by publicly financed candidates and presidential or
vice-presidential candidates who have not accepted public funds.
Therefore, proposed 11 CFR 100.93(c)(1) would apply directly to
presidential and vice-presidential candidates who have not accepted
public funds, while the proposed revisions to 11 CFR 9004.7 and 9034.7,
discussed below, would continue to incorporate the section 100.93 rates
by reference and thereby indicate that they also apply to candidates
who have accepted public funds. One important distinction, however, is
that a presidential candidate accepting public funds for the general
election is prohibited from receiving any in-kind contribution from any
person, which would include an in-kind contribution of non-commercial
air travel.
The Commission seeks comments on the proposed application of the
new rules to publicly financed presidential and vice-presidential
candidates.
4. Travel on Behalf of Leadership PACs of Senate, Presidential, and
Vice-Presidential Candidates
Under new 2 U.S.C. 439a(c), payments by leadership PACs of House
candidates are subject to the same restrictions as payments by
authorized committees of House candidates. See 2 U.S.C. 439a(c)(2). In
contrast, new 2 U.S.C. 439a(c) is silent with respect to leadership
PACs of Senate candidates and Federal officeholders with leadership
PACs who are also presidential or vice-presidential candidates.
The Commission proposes to apply the new reimbursement rates to
travel on behalf of a Senate candidate's leadership PAC. See 11 CFR
100.93(c)(1). The Commission seeks comment on this approach.
Alternatively, should the Commission decline to extend the new
reimbursement rate structure to travel on behalf of a Senate
candidate's leadership PAC because the new law does not explicitly do
so?
5. Commercially Reasonable Time Frame
Candidates for President, Vice-President, and the U.S. Senate must
pay their pro rata share of non-commercial travel on aircraft ``within
a commercially reasonable time frame after the date on which the flight
is taken.'' 2 U.S.C. 439a(c)(1)(B). Proposed 11 CFR 100.93(c) would
define the statutory ``commercially reasonable time frame'' as a seven-
day time frame beginning on the first day of the flight. The proposed
approach would be located in the introductory clause of 11 CFR
100.93(c) and thus would be applicable to all payments required under
that paragraph. The Commission seeks comment on this approach.
Is seven days a ``commercially reasonable time frame'' for
reimbursement or is it too short a period? Would another time period
for
[[Page 59960]]
reimbursement be more appropriate or reasonable? Should the Commission
instead establish the seven-day period (or some other period) as a safe
harbor, and consider longer periods on a case-by-case basis to
determine if the ``commercially reasonable time frame'' requirement was
satisfied?
F. Proposed 11 CFR 100.93(e)--Government Conveyances
The Commission's current rules at 11 CFR 100.93(e) require
reimbursement for travel aboard airplanes owned by the Federal
government, or by any State or local government entity, at the same
rate as travel aboard other airplanes (i.e., the rate for a first-class
or coach ticket aboard a commercial flight if the travel is between two
cities served by regularly scheduled commercial airline service, or the
equivalent charter rate if there is no such service between the
cities).\8\ Non-commercial campaign travel aboard other government
conveyances is also required to be reimbursed at the same rate as
travel aboard equivalent means of transportation not owned by a
government entity. 11 CFR 100.93(e)(2).
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\8\ Travel to or from a military airbase or other location not
accessible to the general public is treated as travel from the
nearest city with regularly-scheduled commercial airline service. 11
CFR 100.93(e)(1)(i).
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New 2 U.S.C. 439a(c) generally prohibits candidates for the U.S.
House of Representatives from using campaign funds for non-commercial
campaign travel, but provides an exception for travel aboard an
aircraft ``operated by an entity of the Federal government or the
government of any State.'' 2 U.S.C. 439a(c)(2)(B). The new law does not
specify any particular rate of reimbursement for travel aboard
government aircraft, nor does it explicitly require or prohibit
reimbursement for such travel.\9\
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\9\ The Commission notes that Public Law 110-81 also amends the
Senate ethics rules regarding travel. These amendments similarly
require Senators to pay this pro rata share of the fair market value
of a flight for non-commercial travel. See Public Law 110-81, Sec.
544(c)(1), amending Paragraph 1(c)(1) of rule XXXV of the Standing
Rules of the Senate. These amendments, however, expressly except
from these restrictions any travel aboard ``an aircraft owned or
leased by a governmental entity.'' Standing Rules of the Senate,
Rule XXXV, Paragraph 1(c)(1)(C)(iii).
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Proposed 11 CFR 100.93(e) would require all campaign travelers,
including candidates for Federal office and those traveling on their
behalf, who travel on aircraft provided by a Federal or State
government entity (including local governments), to reimburse the
appropriate government entity for the travel. See proposed 11 CFR
100.93(e). The proposed rules set out two alternative rates of
reimbursement for travel by candidates and candidate representatives,
and either rate would be acceptable.
The first proposed rate of reimbursement, which would be similar to
current 11 CFR 100.93(c)(1), would be the pro rata share per
represented candidate of the normal and usual charter fare or rental
charge for the flight on a comparable aircraft of sufficient size to
accommodate all of the campaign travelers. The pro rata share would be
determined by dividing the normal and usual charter fare by the number
of different candidates represented on the flight, regardless of the
total number of campaign travelers or other passengers. Under this
proposal, the ``comparable aircraft'' used for determining the required
reimbursement amount would not be required to accommodate the non-
campaign related passengers and equipment aboard the aircraft. For
example, if Presidential Candidate A, two campaign staffers traveling
on behalf of Presidential Candidate A, two members of the Secret
Service, and PAC representative P, travel on a twenty-seat government
aircraft, reimbursement would be required at the normal and usual
charter rate for comparable aircraft of sufficient size to accommodate
four passengers (Presidential Candidate A, his two campaign staffers,
and PAC representative P; the two Secret Service agents would not be
counted). Presidential Candidate A would pay the full charter rate, and
PAC representative P would not be required to reimburse for his or her
travel. The Commission seeks comment on this approach. Specifically, do
non-candidate campaign travelers use government aircraft when not
accompanied by a candidate, or person traveling on behalf of a
candidate? At what rate should travel on a government plane that does
not include any candidate-related campaign travelers be calculated?
The Commission seeks comments on a variation of this first
reimbursement rate, in which Presidential Candidate A and PAC
representative P would each be responsible for the full cost of the
normal and usual charter rate for an aircraft of sufficient size to
accommodate only those campaign travelers who are traveling on their
behalf. Under this variation, Presidential Candidate A would pay the
normal and usual charter rate for an aircraft capable of accommodating
three campaign travelers: Candidate A and his two staffers. PAC
representative P would be required to pay only the normal and usual
charter rate for an aircraft of sufficient size to carry one passenger.
With respect to campaign travel aboard Air Force One or other
government aircraft dedicated to transporting the Vice President, the
Speaker of the House of Representatives, or other such officials, the
Commission intends that the reimbursement amount under this proposal
would be determined with reference to an aircraft of sufficient size to
accommodate the campaign travelers, and excluding all non-campaign-
related personnel and equipment. The Commission acknowledges that it
may be difficult, if not impossible, to apply the ``comparable plane of
comparable size'' standard to circumstances in which the campaign
traveler travels exclusively aboard a specially-outfitted, government-
owned aircraft by virtue of his or her status as an officeholder. For
example, few, if any, aircraft exist with the ``same amenities'' as Air
Force One. See proposed 11 CFR 100.93(e)(1)(i).
The second proposed rate of reimbursement would be the private
traveler reimbursement rate per campaign traveler. This rate would be
the rate specified by the Federal, State, or local government agency or
other government entity for private travel on its aircraft by a member
of the public. The Department of Defense, for example, publishes a list
of hourly reimbursement rates for both fixed-wing aircraft and
helicopters and includes an ``All Other User'' rate.\10\ Using the
private traveler reimbursement rate, the reimbursement rate is
calculated by dividing the private traveler reimbursement rate by the
number of campaign travelers. Reimbursement would not be required for
national security staff or other government officials on the flight
that are not campaign travelers. The Commission seeks comment on this
approach. Should the campaign traveler be permitted to reimburse the
government entity at a lower rate specified by the government entity,
such as the rate offered by some government agencies to travelers of
other government agencies? Should the regulations offer a choice
between alternative acceptable valuation methods, or should the
Commission adopt a single method of determining the reimbursement rate?
The Commission recognizes that campaign travel aboard government
conveyances such as Air Force One and Air Force Two present special
circumstances. Therefore, the
[[Page 59961]]
Commission requests comment on how it should address Air Force One and
Air Force Two in its regulations.
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\10\ See Fiscal Year 2008 Reimbursement Rates, available at
https://www.defenselink.mil/comptroller/rates/fy2008/2008_f.pdf and
https://www.defenselink.mil/comptroller/rates/fy2008/2008_h.pdf.
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The proposed rules would not specify a particular time for
repayment for travel on government aircraft under either of the
alternative rates. Should the Commission require payment within a
specific time period, such as seven days, as for travel on other
aircraft under proposed 11 CFR 100.93(c)?
G. Proposed 11 CFR 100.93(g)--Exception for Aircraft Owned by Federal
Candidates and Their Family Members
The amendments to 2 U.S.C. 439a include an exception for travel
aboard aircraft that are ``owned or leased'' by a candidate or
candidate's immediate family member, including an aircraft owned or
leased by any entity in which the candidate or a member of the
candidate's immediate family ``has an ownership interest,'' provided
that the entity is not a ``public corporation'' and the use of the
aircraft is not ``more than the candidate's or immediate family
member's proportionate share of ownership allows.'' 2 U.S.C.
439a(c)(3)(A). The exception would operate as an exception to all of
the restrictions on expenditures for air travel in new 2 U.S.C.
439a(c). See discussion of proposed 11 CFR 113.5. The Commission seeks
comment on this approach.
While the new exception relieves the restrictions on expenditures,
it does not relieve candidates of the obligation to reimburse the
service providers (candidates, members of their family, or entities in
which either owns an interest) to avoid receiving an in-kind
contribution for the use of the aircraft. See 11 CFR 100.93. Even
though a candidate for Federal office may make an unlimited amount of
contributions to his or her own campaign, those contributions must be
reported by the candidate's authorized committee.\11\ 11 CFR 110.10;
Advisory Opinions 1991-09 (Hoagland), 1990-09 (Mueller), 1985-33
(Collins), 1984-60 (Mulloy). Contributions by all other persons,
including immediate family members, are subject to the applicable
amount limits and source prohibitions. 11 CFR 110.1 et seq.
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\11\ A contribution by a candidate for the House or Senate to
his own campaign may also impact separate disclosure requirements
for expenditures from personal funds under 2 U.S.C. 441a(i), the so-
called ``Millionaires Amendment.'' 2 U.S.C. 441a(i)(1)(C); 11 CFR
Part 400. The Commission seeks comment on the impact of these
proposed regulations on the Millionaire's Amendment.
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The Commission proposes several reimbursement alternatives.
Proposed 11 CFR 100.93(g) would require reimbursement for aircraft
owned by candidates and their immediate family at the rates set forth
in the Commission's existing rules, which would be moved to 11 CFR
100.93(g)(1)(i) through (iii): first-class, coach, or charter rates,
depending on whether the origin and destination cities are served by
regularly scheduled commercial airline service. The charter rate would
be required only if the travel is between two cities not served by
regularly scheduled first class or coach commercial airline service.
1. Incremental Cost