Campaign Travel, 63951-63968 [E9-28637]

Download as PDF 63951 Rules and Regulations Federal Register Vol. 74, No. 233 Monday, December 7, 2009 This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510. The Code of Federal Regulations is sold by the Superintendent of Documents. Prices of new books are listed in the first FEDERAL REGISTER issue of each week. FEDERAL ELECTION COMMISSION 11 CFR Parts 100, 113, 9004, 9034 [Notice 2009–27] Campaign Travel Federal Election Commission. Final rules. AGENCY: erowe on DSK5CLS3C1PROD with RULES ACTION: SUMMARY: The Federal Election Commission is promulgating new and revised rules implementing the provision of the Honest Leadership and Open Government Act governing noncommercial campaign travel on aircraft. These changes restrict, and in some situations prohibit, Federal candidates and certain political committees from expending campaign funds for noncommercial air travel. The rules apply to all Federal candidates, including publicly funded presidential candidates, and other individuals traveling on behalf of candidates, political party committees, and other political committees, where the travel is in connection with Federal elections. DATES: The effective date for the amendments to 11 CFR parts 100, 113 and 9034 is January 6, 2010. Further action on amendments to 11 CFR part 9004, including the publication of a document in the Federal Register announcing an effective date, will be taken after these regulations have been before Congress for 30 legislative days pursuant to 26 U.S.C. 9009(c). FOR FURTHER INFORMATION CONTACT: Ms. Amy L. Rothstein, Assistant General Counsel, Mr. Joshua S. Blume, Attorney, or Ms. Joanna S. Waldstreicher, Attorney, 999 E Street, NW., Washington, DC 20463, (202) 694–1650 or (800) 424–9530. SUPPLEMENTARY INFORMATION: The Commission is promulgating several changes to its rules in order to implement section 601 of Public Law 110–81, 121 Stat. 735, the ‘‘Honest VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 Leadership and Open Government Act of 2007’’ (‘‘HLOGA’’). This provision of HLOGA became effective upon enactment on September 14, 2007. HLOGA 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). The Commission is implementing this provision of HLOGA by adding new § 113.5 to 11 CFR Part 113, which governs the expenditure of campaign funds by candidates for Federal office and their authorized political committees. In addition, the Commission is promulgating revisions to 11 CFR 100.93, which establishes 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. The revisions to 11 CFR 100.93 apply to campaign travel by, or on behalf of, candidates for Federal office or leadership PACs of House candidates. As discussed below, the rules leave in place the required reimbursement rate structure imposed under the Commission’s 2003 rules for travel by persons on behalf of other political committees, such as the staff of a political party committee, a nonconnected political committee, or a leadership PAC of a Senate or Presidential candidate. The revisions to 11 CFR 100.93 are also incorporated by reference into the Commission’s rules governing travel by publicly funded presidential candidates. The changes in these final rules, however, do not substantively alter the Commission’s treatment of travel by means of transportation other than aircraft, or of travel aboard commercial airliners or charter flights. The Notice of Proposed Rulemaking (‘‘NPRM’’) on which these final rules are based was published in the Federal Register on October 23, 2007. 72 FR 59953 (Oct. 23, 2007). The comment period closed on November 13, 2007. The Commission received eight comments from eleven commenters.1 The comments are available at https:// www.fec.gov/law/ law_rulemakings.shtml#travel07. Because no commenters requested the opportunity to testify, the Commission did not hold a hearing on this rulemaking. Under the Administrative Procedure Act, 5 U.S.C. 553(d), and the Congressional Review of Agency Rulemaking Act, 5 U.S.C. 801(a)(1), agencies must submit final rules to the Speaker of the House of Representatives and the President of the Senate, and publish them in the Federal Register at least thirty calendar days before they take effect. In addition, 26 U.S.C. 9009(c) requires that any rules or regulations prescribed by the Commission to carry out the provisions of the Presidential Election Campaign Fund Act be transmitted to the Speaker of the House of Representatives and the President of the Senate thirty legislative days before they are finally promulgated. The final rules that follow were transmitted to Congress on November 24, 2009. 1 These comments included a written comment from the Internal Revenue Service stating that it did not find any conflict between its regulations and the Commission’s proposed rules. PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 Explanation and Justification I. Background A. 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 normal and usual 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 charged must pay the usual and normal charge for that service to avoid receiving an in-kind contribution from the person E:\FR\FM\07DER1.SGM 07DER1 63952 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations providing the travel service. Such inkind 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. If the in-kind contributions are from permissible sources, they nevertheless would be subject to the contribution limits of the Act and Commission regulations. See 2 U.S.C. 441a-441k; 11 CFR parts 110, 114, and 115. erowe on DSK5CLS3C1PROD with RULES 1. Promulgation of 11 CFR 100.93 in 2003—Payment for Non-Commercial Travel The usual and normal charge for travel aboard a commercial aircraft is the publicly available price for a ticket, and the usual and normal charge for a chartered aircraft is the publicly available charter or lease rate. The usual and normal 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 non-commercial aircraft that may be operated primarily for the travel of the owner and invited guests. Because candidates for Federal office traveled on these privately operated aircraft, the Commission’s regulations provided specific guidance about the rate of reimbursement that candidates and others had to pay to avoid receiving an excessive or a prohibited in-kind contribution for travel aboard such aircraft. 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 69583 (Dec. 15, 2003) (‘‘2003 travel rules’’ or ‘‘2003 E&J’’). The 2003 travel rules established an exception from the definition of ‘‘contribution’’ for payments at specified rates for non-commercial travel in connection with a Federal election. Under the 2003 travel rules, the payment required for non-commercial air travel varied among the first-class, coach, or charter rate, depending on whether the travel occurred between cities served by regularly scheduled commercial airline service, and whether that service was available at a first-class or coach rate. See 11 CFR 100.93(a)(3)(i) and (c) (2004). 2. Revisions in 2003 to 11 CFR 9004.7 and 9034.7—Travel by Presidential and Vice-Presidential Candidates Accepting Public Funds Candidates in the presidential primary elections may qualify to receive VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 partial public funding in the form of matching payments from the Federal government. Additionally, presidential general election candidates may qualify to receive outright grants of public funds. In both cases, the presidential 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. 9003(b) and (c), and 9033(b). As part of the 2003 travel rules, the Commission promulgated separate regulations at 11 CFR 9004.7(b)(5)(i), (v), and (b)(8), and 9034.7(b)(5)(i), (v), and (b)(8), setting forth the appropriate reimbursement rates that publicly funded candidates must use for campaign-related travel on noncommercial transportation. While 11 CFR 100.93 treats the underpayment for travel as an in-kind contribution, 11 CFR 9004.7 and 9034.7 address the extent to which payments for campaignrelated travel constitute ‘‘qualified campaign expenses.’’ The 2003 travel rules revised the rates and recordkeeping requirements for presidential and vice-presidential candidates accepting public funds to conform them to the new rates in 11 CFR 100.93. II. Revisions to 2 U.S.C. 439a—Use of Campaign Funds HLOGA amended the Act to prohibit House candidates, their authorized committees, and their leadership PACs 2 from making any expenditure 3 for noncommercial travel on aircraft, with an exception for travel on governmentoperated aircraft and aircraft owned or leased by a candidate or an immediate family member of the candidate. See 2 U.S.C. 439a(c)(2) and (3). HLOGA also specified new reimbursement rates that presidential, vice-presidential, and Senate candidates must pay for noncommercial campaign travel on aircraft. See 2 U.S.C. 439a(c)(1). The reimbursement rates for these types of travel differ from those contained in the 2 The NPRM proposed a definition of ‘‘leadership PAC’’ to implement section 204(a) of HLOGA, 2 U.S.C. 434(i)(8)(B). NPRM at 59954–55, 59964. The Commission subsequently adopted a definition of ‘‘leadership PAC’’ at 11 CFR 100.5(e)(6) as part of a separate rulemaking governing the reporting of contributions bundled by lobbyists, registrants and the PACs of lobbyists and registrants. See Reporting Contributions Bundled by Lobbyists, Registrants and the PACs of Lobbyists and Registrants, 74 FR 7285, 7286 (Feb. 17, 2009). This definition became effective on March 19, 2009. Accordingly, the definition of ‘‘leadership PAC’’ is not addressed in these final rules. 3 An ‘‘expenditure’’ includes any payment ‘‘made by any person for the purpose of influencing any election for Federal office.’’ 2 U.S.C. 431(9)(A)(i). PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 Commission’s 2003 travel rules, which addressed non-commercial travel on aircraft by all political committees, including political party committees, separate segregated funds, nonconnected political committees, and other political committees. HLOGA did not, however, affect campaign travel on commercial flights, which all candidates must still reimburse at the ‘‘usual and normal charge.’’ See 11 CFR 100.52(a) and (d), and 100.93(a)(2). III. Revisions to 11 CFR 100.93—Travel by Aircraft or Other Means of Transportation The Commission is amending 11 CFR 100.93 to implement HLOGA’s provisions requiring candidates and certain political committees to pay for non-commercial air travel at a specified rate to avoid the receipt of an excessive or a prohibited in-kind contribution.4 The Commission is otherwise retaining 11 CFR 100.93 intact, except as identified below. The explanations for the purpose and provisions of 11 CFR 100.93 were set out in the 2003 E&J and continue to apply unless addressed in the following discussion. In the NPRM, the Commission sought comments on the overall structure of 11 CFR 100.93. None of the commenters called for a change in the structure or general function of the section. A. 100.93(a)—Scope and Definitions The Commission is changing the scope and definitions in 11 CFR 100.93(a) as noted below. First, for internal consistency, the Commission is replacing all references to ‘‘airplanes’’ in 11 CFR 100.93 with the term ‘‘aircraft.’’ HLOGA uses the term ‘‘aircraft,’’ which the Federal Aviation Authority (FAA) defines as ‘‘a device that is used or intended to be used for flight in the air.’’ 4 The intent of section 601 of HLOGA was frequently characterized by its sponsors as an effort to end subsidization of air travel provided by corporations and others to candidates, and thereby reduce the potential for corruption or the appearance thereof. See, e.g., 153 Cong. Rec. S263 (daily ed. Jan. 1, 2007) (statement of Sen. Obama) (‘‘It would be one thing if Congressmen and Senators paid the full rate for these flights, but we don’t’’), 153 Cong. Rec. S267 (daily ed. Jan. 9, 2007) (statement of Sen. Feingold) (‘‘Any legislation on corporate jets must include campaign trips as well as official travel because one thing is for certain— the lobbyist for the company that provides the jet is likely to be on the flight, whether it is taking you to see a factory back home or a fundraiser for your campaign.’’), 153 Cong. Rec. S320 (daily ed. Jan. 10, 2007) (statement of Sen. Lieberman) (‘‘When a Member of Congress or a candidate for Federal office uses a private plane, the ethics rules, as well as the Federal Election Commission rules, require payment to the owner of the plane equivalent to a first-class commercial ticket * * * The Reid amendment would eliminate that loophole * * *’’), and 153 Cong. Rec. S10692 (daily ed. Aug. 2, 2007) (statement of then Sen. Obama). E:\FR\FM\07DER1.SGM 07DER1 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations 14 CFR 1.1. The term ‘‘aircraft’’ includes helicopters, which the Commission’s 2003 travel rules had grouped with buses and conveyances other than airplanes. See 11 CFR 100.93(a)(3)(ii) (2004) (definition of ‘‘service provider’’ focuses on ‘‘person who makes the airplane or other conveyance available’’), 11 CFR 100.93(c) (2004) (‘‘travel by airplane’’), and 11 CFR 100.93(d) (‘‘other means of transportation’’ includes ‘‘any other means of transportation’’ and specifically lists helicopters). The primary impact of these changes is that travel aboard a helicopter now would be reimbursed at the rate required in 11 CFR 100.93(c) (aircraft), rather than (d) (other conveyances), which was the case under the 2003 travel rules, as discussed below. erowe on DSK5CLS3C1PROD with RULES 1. 11 CFR 100.93(a)(1) and (2)—Scope of 11 CFR 100.93 The rule at 11 CFR 100.93 is intended to establish reimbursement rates for ‘‘non-commercial travel’’ in the absence of a usual and normal charge. 11 CFR 100.93(a)(1). When a usual and normal charge is readily ascertainable, such as a specified fee by route, mileage, or date and time of use, the travel is generally considered ‘‘commercial travel’’ and the usual and normal charge must be paid to avoid receiving an in-kind contribution. See 11 CFR 100.93(a)(2) and 100.52(d)(1). The Commission’s 2003 travel rules distinguished between commercial and non-commercial air travel based on the certification system of the Federal Aviation Administration (FAA). Specifically, the Commission’s 2003 travel rules applied to all airplanes not licensed by the FAA to operate for compensation or hire under 14 CFR parts 121, 129, or 135. See 11 CFR 100.93(a)(1)(i) (2004). HLOGA accomplishes the same result without explicit reference to specific FAA regulatory provisions. In order to simplify and align the Commission’s regulations with HLOGA, the Commission is replacing its reliance on specific FAA regulatory provisions with the new terms ‘‘commercial travel’’ and ‘‘non-commercial travel,’’ which are defined in new 11 CFR 100.93(a)(3)(iv) and (v) and explained below. None of the commenters opposed this change. 2. 11 CFR 100.93(a)(3)(i)—Definition of ‘‘Campaign Traveler’’ The Commission also is making a change to the definition of ‘‘campaign traveler’’ in 11 CFR 100.93(a)(3) to clarify that the term encompasses not only persons traveling on behalf of a candidate, but also candidates who VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 travel on behalf of their own campaigns. In the NPRM, the Commission proposed amending the definition of ‘‘campaign traveler’’ to include ‘‘[a]ny candidate for Federal office,’’ as well as ‘‘any 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 candidate.’’ See proposed 11 CFR 100.93(a)(3)(i). The Commission received one comment in support of the proposed change, and no comments in opposition. The Commission is adopting the proposed change along with one further revision to clarify that a candidate is a ‘‘campaign traveler’’ only when ‘‘traveling in connection with an election for Federal office.’’ The term ‘‘campaign traveler’’ in revised 11 CFR 100.93 does not include Members of Congress when they engage in official travel, or candidates when they engage in personal travel or any other travel that is not in connection with an election for Federal office. Security personnel, including governmentprovided security personnel (such as the Secret Service), shall be treated as campaign travelers when traveling in connection with a Federal election on behalf of a candidate or a political committee. However, governmentprovided security personnel are not included when determining a ‘‘comparable aircraft of sufficient size to accommodate all campaign travelers’’ under 11 CFR 100.93(e)(1)(i), as discussed below. 3. 11 CFR 100.93(a)(3)(iv) and (v)— Definitions of ‘‘Commercial Travel’’ and ‘‘Non-Commercial Travel’’ The definition of ‘‘commercial travel’’ in new 11 CFR 100.93(a)(3)(iv)(A) corresponds to the new statutory language of HLOGA: Travel aboard an aircraft ‘‘operated by an air carrier or commercial operator certificated by the Federal Aviation Administration and 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 and the flight is required to be conducted under air carrier safety rules.’’ 5 2 U.S.C. 5 Both ‘‘air carrier’’ and ‘‘commercial operator’’ are terms of art defined in FAA regulations. See 14 CFR 1.1. An ‘‘air carrier’’ is ‘‘a person who undertakes directly by lease or other arrangement to engage in air transportation.’’ A ‘‘commercial operator’’ is ‘‘a person who, for compensation or hire, engages in the carriage by aircraft in air commerce of persons or property other than as an air carrier or foreign air carrier or under part 375.’’ The Federal Aviation Administration’s (‘‘FAA’’) air carrier safety rules are contained in 14 CFR parts PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 63953 439a(c)(1) and (2). The definition of ‘‘non-commercial travel’’ in 11 CFR 100.93(a)(3)(v) encompasses all air travel not included in the definition of ‘‘commercial travel.’’ These definitions are unchanged from the NPRM. One comment addressed these definitions, supporting both. The Commission did not receive any comments identifying a difference between the universe of aircraft encompassed by the new term ‘‘noncommercial travel’’ and the aircraft included in former 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’’). The Commission is defining ‘‘commercial travel’’ with respect to conveyances other than aircraft as ‘‘other means of transportation operated for commercial passenger service.’’ 11 CFR 100.93(a)(3)(iv)(B). This definition is unchanged from the proposed rule. The Commission did not receive any comments on this proposed definition. The Commission also did not receive any comments on whether the definitions of ‘‘commercial travel’’ and ‘‘non-commercial travel’’ should specifically address the treatment of aircraft operated under 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. The Commission has decided not to address this issue in the final rule’s definitions because the Commission expects that the structure of the final rule will eliminate any potential for confusion arising from complex ownership arrangements. The final rule focuses on the operator of the aircraft at the time of a given flight and whether that particular flight is subject to the applicable FAA safety standards, rather than the owners, service providers, or prior uses of the aircraft as in former 11 CFR 100.93. Multiple ownership arrangements for aircraft owned or leased by a candidate or a candidate’s immediate family member through a multiple-ownership arrangement are addressed in 11 CFR 100.93(g), discussed below. 4. 11 CFR 100.93(a)(3)(vi)—Definition of ‘‘Comparable Aircraft’’ HLOGA Section 601(a) requires reimbursement of fair market value for flights described within that section based on the charter rate for a ‘‘comparable plane of comparable size’’ 121 (large airplanes) and 135 (smaller airplanes and other aircraft). E:\FR\FM\07DER1.SGM 07DER1 63954 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations erowe on DSK5CLS3C1PROD with RULES to the one actually flown. 2 U.S.C. 439a(c)(1)(B). The Commission interprets the term ‘‘comparable plane of comparable size’’ to mean an aircraft with similar physical dimensions to the aircraft actually flown and that is able to carry a similar number of passengers. The Commission recognizes, however, that there is no ‘‘comparable plane’’ for a helicopter and is, instead, construing the statute to require a comparison of similar types of aircraft (i.e., compare a helicopter to a helicopter). Accordingly, the Commission has defined the term ‘‘comparable aircraft’’ in new 11 CFR 100.93(a)(3)(vi) as ‘‘an aircraft of similar make and model as the aircraft that actually makes the trip, with similar amenities as that aircraft.’’ See new 11 CFR 100.93(a)(3)(vi). This interpretation is consistent with the Commission’s interpretation of a similar term, ‘‘comparable commercial airplane,’’ in its 2003 travel rules, as explained in the 2003 E&J. See 2003 E&J, 68 FR at 69588–89. The definition is also consistent with advisory opinions issued prior to the 2003 travel rules. For example, in Advisory Opinion 1984–48 (Hunt), when applying the then-operative term of a ‘‘comparable commercial conveyance’’ to an airplane, 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. Therefore, if a candidate used a twin engine prop jet, a single engine prop aircraft would not be a comparable aircraft. The new term ‘‘comparable aircraft’’ is intended to require consideration of these distinctions as well as other differences, such as whether a plane is chartered with or without a crew, or with or without fuel. B. 11 CFR 100.93(b)—Reimbursement of Service Provider Required To Avoid the Receipt of a Contribution Paragraphs (b)(1) and (b)(2) of section 100.93 require a campaign traveler, or the political committee on whose behalf the travel occurred, to reimburse the provider of the aircraft or other conveyance at the applicable rate specified in 11 CFR 100.93(c), (d), (e), or (g) to avoid receipt of an excessive or prohibited in-kind contribution. As explained further below, travel on non-commercial aircraft by candidates for election for the office of Representative in, or Delegate or Resident Commissioner to, the Congress (‘‘House candidates’’), or a person traveling on behalf of any such candidate or any authorized committee or leadership PAC of such candidate, is VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 generally prohibited (see 11 CFR 100.93(c)(2)) and cannot be accepted as an in-kind contribution or be reimbursed from campaign funds (see 11 CFR 113.5). The Commission is also renumbering former paragraph (b)(1)(iii) as paragraph (b)(3) and revising it to permit members of the news media and governmentprovided security personnel traveling with a candidate to reimburse the political committee or to pay the service provider directly for their pro rata share of the travel. Ultimately it is the candidate committee’s exclusive responsibility to ensure that the service provider is reimbursed for the value of the transportation provided to all persons traveling with the candidate; however, allowing members of the news media to reimburse the political committee or to pay the service provider directly is consistent with former 11 CFR 100.93 and takes into account the variety of billing practices that have been used by members of the media to pay for their travel. See 2003 E&J, 68 FR at 69586; see also 11 CFR 9004.6 and 9034.6.6 Like members of the news media, a Federal or State government provider of security personnel traveling with a candidate, such as the Secret Service and national security staff, also may reimburse the political committee paying for the security personnel’s portion of the travel expenses. See, e.g., Advisory Opinion 1992–38 (Clinton/ Gore) (loan proposal premised on the obligation of the Secret Service to provide reimbursement); see also 11 CFR 9004.6 and 9034.6. Under the revised rule, the government security provider therefore may pay the service provider directly or reimburse the political committee paying for the travel. In either case, members of the news media or the government provider of security must not pay more than their pro rata share of the travel costs, as determined in accordance with 11 CFR 100.93(c), (d), (e), or (g). There is no indication that Congress was concerned about news media or government-provided security personnel paying for their own travel when traveling with Federal candidates or officeholders. Unlike when a corporation or political committee provides free or reduced travel services to a candidate, the reimbursement by news media or government-provided security personnel for their own travel does not implicate the goals of the Act in deterring corruption or the 6 To the extent that any portion of 11 CFR 9004.6 or 9034.6 is inconsistent with 11 CFR 100.93, section 100.93 governs. PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 appearance of corruption. Moreover, a candidate may have little or no control over whether to be accompanied by government-provided security personnel. Finally, although several commenters urged the Commission to prohibit political committees from paying any portion of the cost of a Federal candidate’s flight, none of the commenters indicated that payments by the news media or government entities would pose the same dangers of corruption or the appearance of corruption, or that the news media and government security providers should be prohibited from paying for their own travel, particularly when paying the same rate as others on the aircraft. Although the rule proposed in the NPRM would have prohibited any form of payment by the news media, the Commission sees no compelling reason to deviate from its longstanding policy of permitting the news media and government-provided security personnel to pay for their pro rata share of the fair market value of the travel. C. 11 CFR 100.93(c)(1)—NonCommercial Air Travel by or on Behalf of Candidates for President, VicePresident, and U.S. Senate HLOGA requires candidates for President, Vice President, and the 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.’’ 2 U.S.C. 439a(c)(1)(B) (emphasis added). Accordingly, new 11 CFR 100.93(c)(1) requires that the entire charter rate for a comparable aircraft of comparable size be divided among the candidates aboard the flight, or their representatives, as proposed in the NPRM. All of the commenters who addressed this topic supported the requirement that presidential, vice-presidential, and Senate candidates pay the entire charter cost, rather than allowing other political committees or non-campaign travelers to pay for their own portion of the flight. The final rule differs from the proposed rule only in that under the final rule the cost of the flight is split among candidates based on the number of campaign travelers flying on behalf of each candidate, rather than split evenly among the candidates as proposed in the NPRM. 72 FR at 59956. The new rule therefore provides a more accurate reflection of the proportion of the benefit derived from the flight by each candidate, while still requiring E:\FR\FM\07DER1.SGM 07DER1 erowe on DSK5CLS3C1PROD with RULES Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations presidential, vice-presidential, and Senate candidates to pay the entire charter cost. For example, if Senate Candidate A is traveling with two campaign staffers, and Senate Candidate B is also traveling on the aircraft, and each candidate is traveling on behalf of his or her own campaign, then Candidate A would pay three-fourths of the charter fare and Candidate B would pay one-fourth. This result is also consistent with the comment submitted by two of the sponsors of HLOGA, Senators Feingold and Obama, who suggested that the cost of the flight be split among candidates in proportion to the benefit derived by each campaign. The Senators stated that this approach would be consistent with the payment for air travel required under the Senate Ethics Rules. See Standing Rules of the Senate, Rule XXXV, Paragraph 1(c)(1)(C)(i). Under new 11 CFR 100.93(c)(1), the ‘‘pro rata share’’ is calculated based on the number of candidates represented on a flight, regardless of whether the individual candidate is present on the flight. This provision is consistent with HLOGA, which limits expenditures for non-commercial air travel by presidential, vice-presidential, and Senate candidates, and their authorized committees. A candidate is represented on a flight if a person is traveling on behalf of that candidate or the candidate’s authorized committee. See 11 CFR 100.93(c)(1). Thus, for example, if Senate Candidate A travels with the campaign manager of Senate Candidate B, but Candidate B does not travel, then the two Senate candidates must nonetheless each pay half of the charter rate. Candidate B’s committee receives the same benefit from the travel by its staff as if Candidate B had taken the flight. This result is the same as proposed in the NPRM, which was supported by all of the commenters addressing this aspect of the proposed rule. Under new 11 CFR 100.93(c)(1), when a presidential, vice-presidential, or Senate candidate, or a representative of the candidate, is traveling on behalf of another political committee (such as a political party committee or Senate leadership PAC), rather than on behalf of the candidate’s own authorized committee, the reimbursement for that travel is the responsibility of the political committee on whose behalf the travel occurs. If the political committee is other than an authorized committee or House candidate’s leadership PAC, then the appropriate reimbursement rate for that political committee is set forth in new 11 CFR 100.93(c)(3), discussed below. In such cases, the presidential, VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 vice-presidential, or Senate candidate, or candidate’s representative, is treated the same as any other person traveling on behalf of the political committee.7 The reimbursement rates for travel aboard government-operated aircraft or aircraft owned by a candidate or a member of a candidate’s immediate family, are treated separately in paragraphs (e) and (g) of 11 CFR 100.93, as discussed below. See subsections H and I, below. 2. Alternatives Not Adopted In the NPRM, the Commission sought comment on three alternative methodologies for calculating the appropriate reimbursement rate for travel by presidential, vice-presidential, or Senate candidates and their representatives. First, the NPRM included several variations of a ‘‘per committee’’ alternative that would have required reimbursement based on the number of represented committees of any type, rather than the number of represented candidates or candidate committees. Second, a ‘‘per passenger’’ alternative would have required candidates to reimburse the service provider for only that portion of the normal and usual charter rate that reflected the number of candidate representatives as a percentage of all passengers on the aircraft. Third, a ‘‘comparable aircraft’’ alternative would have followed the approach in the Commission’s 2003 travel rules by permitting reimbursement at the normal and usual charter rate or rental charge for an aircraft of sufficient size to carry all of the campaign travelers on the flight. See 11 CFR 100.93(c)(3) (2004) (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’’). The Commission has decided not to adopt any of the alternative methodologies proposed in the NPRM. The Commission believes that the methodology in the final rule described above is most consistent with the language of HLOGA. Moreover, the Commission believes that the proposed alternative methodologies might have 7 One commenter asked the Commission to address a hypothetical scenario in which the chairman of a political party committee and a Senate candidate both travel aboard a noncommercial aircraft to a political party committee fundraiser. In response to this request, the Commission notes that because the candidate would be traveling on behalf of the political party committee, that individual’s status as a candidate would be irrelevant. Therefore, the political party committee would pay for the candidate’s portion of the travel. See 11 CFR 100.93(c)(3). PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 63955 lent themselves to manipulation, with the result that corporations, political committees, and others could provide a benefit to the candidate or political committee on whose behalf the travel was undertaken by allowing the candidate or political committee to pay less than its pro rata share of the charter rate. Most of the commenters agreed that the proposed alternative methodologies were inconsistent with the intent of HLOGA. One commenter proposed an alternative based on the ‘‘comparable aircraft’’ alternative proposed in the NPRM. This alternative would have followed the approach in the Commission’s 2003 travel rules by permitting reimbursement at the normal and usual charter rate or rental charge for an aircraft of sufficient size to carry all of the campaign travelers on the flight. See 11 CFR 100.93(c)(3) (2004). The Commission is not adopting this commenter’s version of the ‘‘comparable aircraft’’ alternative because it would allow for the potential reduction of costs by using smaller aircraft for comparison purposes rather than the aircraft actually flown. Moreover, the additional separate calculation of the fair market value of the flight actually taken would add unnecessary complexity to compliance with, and enforcement of, the rules. 3. Travel on Behalf of Leadership PACs of Senate, Presidential, and VicePresidential Candidates HLOGA prohibits non-commercial air travel on behalf of leadership PACs of House candidates, but it does not prohibit such travel on behalf of leadership PACs of Senate, presidential, or vice-presidential candidates. Nor does HLOGA specify the rate at which the Senate, presidential, or vicepresidential candidates’ leadership PACs must reimburse a service provider to avoid a contribution, as it does for those candidates and their authorized committees. For the reasons set forth below in section III.E.1, the Commission is applying the reimbursement rates in 11 CFR 100.93(c)(3)(i)–(iii) to travel on behalf of the leadership PAC of any Senate, presidential, or vice-presidential candidate to make the new rules consistent with the Commission’s prior travel regulations. These rates were set forth in the Commission’s 2003 travel rules: first-class, coach, or charter rates, depending on whether the origin and destination cities are served by regularly scheduled commercial airline service. E:\FR\FM\07DER1.SGM 07DER1 63956 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations erowe on DSK5CLS3C1PROD with RULES D. 11 CFR 100.93(c)(2)—NonCommercial Air Travel by or on Behalf of 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, 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 governmentoperated 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. In the NPRM, the Commission proposed a general rule that would prohibit non-commercial air travel by House candidates and sought comment on whether House candidates should nonetheless be permitted to travel on non-commercial aircraft on behalf of their own campaigns, if the cost of the travel is provided by a permissible source, by treating the travel as a permissible in-kind contribution. One group of commenters addressed this question and urged the Commission to prohibit non-commercial air travel by House candidates as proposed in the NPRM and not allow such travel if it was provided by a permissible source as a permissible in-kind contribution. The Commission agrees with the commenters, and is adopting the rule as proposed in the NPRM. See 11 CFR 100.93(c)(2). Outside of the exceptions for travel on government-operated and candidate-owned aircraft, there is no discussion in the legislative history of this provision to indicate that Congress contemplated allowing non-commercial air travel by House candidates. Instead, statements by sponsors of the new law referred to a ‘‘ban’’ on House travel. See, e.g., 153 Cong. Rec. S10713 (daily ed. Aug. 2, 2007) (statement of HLOGA sponsors offered by Sen. Feinstein). In addition, the statute itself does not include any reimbursement rate for noncommercial travel by House candidates, whereas Congress did specify a rate for Senate and presidential candidates. New 11 CFR 100.93(c)(2) prohibits House candidates, and individuals traveling on behalf of House candidates, their authorized committees or leadership PACs, from engaging in noncommercial campaign travel on aircraft. This prohibition cannot be avoided by payments to the service provider, even VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 by payments from the personal funds of a House candidate.8 The prohibition does not apply, however, when the travel would be considered an expenditure by someone other than the House candidate, House candidate’s authorized committee, or House candidate’s leadership PAC. For example, travel by a House candidate on behalf of a Senate or presidential candidate, or a political party committee, would be permissible so long as the political party committee or candidate on whose behalf the travel occurs reimburses the service provider at the applicable rate under 11 CFR 100.93(c)(1) or (3). E. 11 CFR 100.93(c)(3)—NonCommercial Air Travel by Campaign Travelers Not Traveling on Behalf of Federal Candidates and Their Representatives In the NPRM, the Commission proposed two alternatives with respect to non-commercial air travel by individuals traveling on behalf of political party committees and other political committees that are not candidates’ authorized committees or House candidates’ leadership PACs. The first alternative would have applied the charter rate applicable to travel on behalf of Senate or presidential candidates unless one or more candidates or candidate representatives are also aboard the flight (in which case the candidates would already be paying the entire applicable charter rate to the service provider). The second alternative would have retained the rates in the 2003 travel rules, which permitted reimbursement at the firstclass or coach rate by campaign travelers other than candidates. For the reasons explained below, the Commission is adopting the second alternative and requiring campaign travelers who are not traveling on behalf of candidates to continue to pay the rates in the 2003 travel rules. See 11 CFR 100.93(c)(3). 1. Campaign Travelers Who Are Not Traveling With or on Behalf of Candidates The Commission is not changing its current reimbursement rate structure for campaign travelers who are traveling on behalf of political party committees, SSFs, nonconnected committees, and 8 Although the general rule in 11 CFR 100.93(b)(2) states that no contribution results where a campaign traveler pays the service provider the required rate in accordance with 11 CFR 100.93(c), there is no rate applicable to House candidates in 11 CFR 100.93(c). Thus, 11 CFR 100.93(b)(2) does not permit House candidates to travel on noncommercial aircraft by paying the service provider. PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 certain leadership PACs. Thus, 11 CFR 100.93(c)(3)(i)–(iii) preserves the three reimbursement rates for noncommercial air travel in previous 11 CFR 100.93(c)(1)–(3)—first class, coach, or charter—with the applicable rate depending on whether the travel is between two cities with regularly scheduled first-class or coach commercial airline service. In 2003, the Commission extended its previous travel regulations to cover all travel in connection with a Federal election, stating, ‘‘[b]y 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.’’ 2003 E&J, 68 FR at 69585. The Commission promulgated rules that applied to candidates and those traveling on behalf of candidates or their authorized committees, and extended those rules to other campaign travelers. HLOGA, on the other hand, explicitly addresses the reimbursement rate only for campaign travelers who are candidates or are traveling on behalf of authorized committees. Section 439a(c)(1) applies by its own terms to a candidate (other than a House candidate) or any authorized committee of such a candidate. Section 439a(c)(2) applies by its own terms to House candidates, their authorized committees, and their leadership PACs. Several commenters argued that HLOGA’s silence with respect to coverage of all political actors amounts to implicit approval of the Commission’s 2003 travel rule, which permitted all campaign travelers, candidate and non-candidate alike, to pay for travel at either the first class, coach, or charter rate, depending on whether the origin and destination cities are served by regularly scheduled commercial airline service. One commenter argued that to expand the charter rate requirement beyond HLOGA’s express language would be tantamount to assuming a legislative role in an area in which Members of Congress operate on a day-in-day-out basis. Two additional commenters noted that HLOGA’s silence with respect to these other types of political committees constitutes a form of ‘‘legislative acquiescence’’ to the Commission’s 2003 regulations. No commenters embraced the proposal included in the NPRM to extend the charter rate requirement to all Federal political committees. The Commission disagrees with the argument that by enacting HLOGA, Congress set forth the required reimbursement rate for all campaign E:\FR\FM\07DER1.SGM 07DER1 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations travelers. HLOGA’s supporters spoke most explicitly to the provision’s coverage in terms of its impact on Member and lawmaker travel.9 Thus, together with HLOGA’s Section 601, Congress clearly determined the ‘‘normal and usual charge’’ for noncommercial travel on aircraft by and on behalf of candidates and their authorized committees without disturbing the Commission’s approach that is currently in 11 CFR 100.93(c)(3). This provision requires non-candidate campaign travelers to pay the first class, coach, or charter rate, depending on whether the origin and destination cities are served by regularly scheduled commercial airline service. Each political committee on whose behalf a campaign traveler is flying is responsible for paying the required reimbursement rate. For example, if three representatives of PAC P accompany a representative of Party Committee C, and the travel is to or from a city not served by regularly scheduled commercial airline service, the cost of the charter would be divided by the number of campaign travelers (four). PAC P would pay three-fourths of the charter cost while Party Committee C would pay one-fourth of the charter cost. 2. Candidates Traveling With NonCandidate Campaign Travelers erowe on DSK5CLS3C1PROD with RULES When a Federal candidate (other than a House candidate), or person traveling on behalf of a candidate or candidate’s authorized committee, shares a non9 See, e.g., 152 Cong. Rec. S2435 (daily ed. Mar. 28, 2006) (statement of Sen. Obama) (speaking in terms of a company providing a jet ‘‘to a lawmaker’’), 152 Cong. Rec. S2500 (daily ed. Mar. 29, 2006) (statement of Sen. McCain) (discussing public perception that ‘‘flights unduly influence Members of Congress and serve as a way for lobbyists to curry favor with legislators’’), 153 Cong. Rec. S186 (daily ed. Jan. 4, 2007) (statement of Sen. McCain) (focusing on ‘‘the ability of a Member to travel on a corporate jet’’), 153 Cong. Rec. S548–49 (daily ed. Jan. 16, 2007) (statement of Sen. Reid) (describing his own solicitation and acceptance of private travel), 153 Cong. Rec. S1185 (daily ed. Jan. 25, 2007) (statement of Sen. Levin) (‘‘The new rules will ensure that Members traveling on corporate jets would have to reimburse at the charter rate * * *’’), 153 Cong. Rec. S8400 (daily ed. June 26, 2007) (statement of Sen. Reid) (‘‘It requires Senators to pay fair market value prices for charter flights, which put an end to the abuses of corporate travel.’’), 153 Cong. Rec. S10694 (daily ed. Aug. 2, 2007) (statement of Sen. Feingold) (speaking to ‘‘a requirement that Senators pay the full charter rate on corporate jets for personal, official or campaign purposes * * *’’), 153 Cong. Rec. S10703 (daily ed. Aug. 2, 2007) (statement of Sen. Levin) (‘‘The new rules will ensure that Members traveling on corporate jets would have to pay for them at the charter rate * * *’’), and 153 Cong. Rec. S10715 (daily ed. Aug. 2, 2007) (statement of Sen. Reid) (the law ‘‘requires Senators to pay fair market prices for charter flights, putting an end to abuses of corporate travel.’’). VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 commercial flight with one or more campaign travelers who are not traveling on behalf of a candidate or candidate’s committee, the candidate must pay the cost of the entire charter fare for a comparable aircraft of comparable size pursuant to 11 CFR 100.93(c)(1). Except as permitted under 11 CFR 100.93(b)(3), campaign travelers who are not traveling on behalf of a candidate, candidate’s authorized committee, or House candidate leadership PAC, and other passengers cannot relieve the candidate’s payment obligation. For example, Senate Candidate A, Senate 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 is determined by dividing the normal and usual charter rate for the plane by three because there are three individuals who are candidates or traveling on behalf of candidates (Candidate A, Candidate B, and Candidate B’s campaign manager). New 11 CFR 100.93(c)(1) bases the rate calculation on the proportional share of travelers attributable to each Senate candidate, so Candidate A pays onethird of the charter rate and Candidate B pays two-thirds.10 The PAC need not reimburse the service provider for PAC representative P’s travel because the service provider will be compensated at the full charter rate for the flight by the two candidates. Moreover, no in-kind contribution from the service provider to the PAC will result because the payments by Candidate A and Candidate B will fully compensate the service provider for the value of PAC representative P’s travel. The authorized committee of each candidate must report its payment to the service provider as an expenditure and need not report any portion of its payments to the service provider as an in-kind contribution to the PAC.11 10 One commenter posed a hypothetical situation in which the chairman of a political party committee, who is also a Senate candidate, takes non-commercial air travel to serve as the keynote speaker at a fundraiser to benefit a joint fundraising committee between the political party committee and his own campaign for the U.S. Senate. Because the joint fundraising committee is treated as an authorized committee of the Senate candidate, see 11 CFR 102.17(a)(1)(i), the Senate candidate’s principal campaign committee (another authorized committee) must pay for the travel. 11 One commenter posed a hypothetical scenario in which the chairman of a political party committee and a Senate candidate both travel aboard a non-commercial aircraft. Assuming that the Senate candidate is traveling on behalf of his own campaign, his authorized committee would be responsible for the full cost of the charter fare. See PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 63957 F. Additional Revisions to 11 CFR 100.93(c) 1. Presidential and Vice-Presidential Candidates The Commission continues to treat travel by publicly financed presidential and vice-presidential candidates the same as travel by presidential and vicepresidential candidates who do not receive public funds. Therefore, 11 CFR 100.93(c)(1) applies to presidential and vice-presidential candidates who do not receive public funds, while 11 CFR 9004.7 and 9034.7, discussed below, continue to incorporate the 11 CFR 100.93 rates by reference for candidates who accept 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, including an in-kind contribution of noncommercial air travel. The Commission did not receive any comments on this aspect of the rules. 2. Commercially Reasonable Time Frame HLOGA requires candidates for President, Vice-President, and the U.S. Senate to 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). The Commission implements this requirement by specifying in 11 CFR 100.93(c) that the ‘‘commercially reasonable time frame’’ for payment is within seven days after the first day of the flight. This time frame applies to all payments required under new 11 CFR 100.93(c). The seven-day time frame was established in the 2003 travel rules, and nothing in the record of this rulemaking suggests that a longer or shorter period is warranted. Nor has the Commission’s experience in administering and enforcing the 2003 travel rule indicated any reason to adjust the time frame. The Commission received only one comment addressing this time frame, and that comment supported the sevenday time frame. G. 11 CFR 100.93(d)—Other Means of Transportation For other means of transportation, such as limousines and all other automobiles, trains, and buses, a 11 CFR 100.93(c)(3). The commenter suggested that such travel be recorded as an in-kind transfer from the Senate candidate to the political party committee, but the new rules do not require the candidate or political party committee to record any such in-kind transfer. E:\FR\FM\07DER1.SGM 07DER1 63958 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations H. 11 CFR 100.93(e)—Government Conveyances The Commission’s 2003 travel rules at 11 CFR 100.93(e) required reimbursement for travel aboard airplanes provided by the Federal government, or by any State or local government entity, at the same rate as travel aboard other airplanes. Noncommercial campaign travel aboard government conveyances other than aircraft was reimbursed under former 11 CFR 100.93(e)(2) at the same rate as travel aboard the equivalent means of transportation not provided by a government entity. HLOGA generally prohibits House candidates from using campaign funds for non-commercial travel, except for travel aboard an aircraft ‘‘operated by an entity of the Federal government or the government of any State.’’ 12 2 U.S.C. 439a(c)(2)(B). As noted above, under the Commission’s 2003 rules the required reimbursement rate for travel on government airplanes was the first-class, coach, or charter rate, depending on whether the travel occurred between cities served by regularly scheduled commercial airline service, and whether that service was available at a first-class or coach rate. For travel to or from a military airbase or other location not accessible to the general public, reimbursement was required based on the lowest unrestricted and nondiscounted first-class airfare to or from the city with regularly scheduled firstclass commercial airline service that is geographically closest to the military airbase or other location actually used. Section 601 of HLOGA thus provides an exception to the prohibition on House candidates and their authorized committees and leadership PACs from making expenditures for travel on noncommercial aircraft, but does not specify any particular rate of reimbursement for travel aboard government-operated aircraft. The NPRM proposed a set of two different rates in 11 CFR 100.93(e)(1) that candidates could choose from for reimbursement for government-operated aircraft. The first rate, proposed in 11 CFR 100.93(e)(1)(i), requires reimbursement of the appropriate government entity at 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 ‘‘per candidate campaign traveler’’ reimbursement rate). The second rate, proposed in 11 CFR 100.93(e)(1)(ii), requires reimbursement at the private traveler reimbursement rate per campaign traveler, as specified by the government entity operating the aircraft (the ‘‘private traveler’’ reimbursement rate). The NPRM did not propose any substantive changes to 11 CFR 100.93(e)(2), which governs travel on government conveyances other than aircraft. The Commission did not receive any comments on proposed 11 CFR 100.93(e). Except as discussed below, new 11 CFR 100.93(e) is the same as proposed in the NPRM. Accordingly, a candidate campaign traveler, or the authorized committee or House leadership PAC on whose behalf the travel is conducted, must reimburse a government entity for travel on any government-operated aircraft at either of the two rates set out in new 11 CFR 100.93(e)(1)(i) and (ii). 12 HLOGA similarly amends the Standing Rules of the Senate regarding travel to require Senators to pay the pro rata share of the fair market value of a flight for non-commercial travel, except for travel aboard ‘‘an aircraft owned or leased by a governmental entity.’’ See Public Law 110–81, sec. 544(c)(1), amending Paragraph 1(c)(1) of rule XXXV of the Standing Rules of the Senate. In order to avoid a regulatory gap with respect to travel on aircraft operated by local governments, new 11 CFR 100.93(e) applies to campaign travel on aircraft operated by local government entities in addition to Federal and State government, as proposed in the NPRM. The Commission did not receive any comments on this provision. 1. 11 CFR 100.93(e)(1)(i)—‘‘Per Candidate Campaign Traveler’’ Reimbursement Rate Under the revised rules, the applicable charter rate is for a comparable aircraft of sufficient size to accommodate all of the campaign travelers. Unlike 11 CFR 100.93(c)(1), which requires the charter rate to be based on a comparable aircraft of comparable size, the comparable aircraft used for the basis of the charter rate in erowe on DSK5CLS3C1PROD with RULES political committee must pay the service provider an amount equal to 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. 11 CFR 100.93(d). This provision is substantially identical to the 2003 travel rule and to the rule proposed in the NPRM. NPRM, 72 FR at 59965. HLOGA does not address travel on any conveyances other than aircraft, and the Commission’s experience administering the 2003 rule for travel on conveyances other than aircraft does not indicate that a change to the rule regarding travel on conveyances other than aircraft is warranted. The Commission did not receive any comments on proposed 11 CFR 100.93(d). VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 11 CFR 100.93(e)(1)(i) need not be the same size as the government-operated aircraft actually used. Similarly, the comparable government aircraft need not be capable of accommodating the non-campaign passengers and equipment aboard the governmentoperated aircraft. Members of the media traveling with a candidate, and security personnel not provided by a government entity, must be included in the number of campaign travelers for the purposes of identifying a comparable aircraft of sufficient size to accommodate all of the campaign travelers. A comparable aircraft, however, need not be able to accommodate government-required personnel (e.g., Secret Service or National Security Agency officers provided to protect the candidate) or government-required equipment (e.g., bulky security or communications devices provided for the national security or communications needs of the candidate).13 For example, a significant portion of Air Force One may be occupied by personnel and equipment mandated by national security requirements and other needs associated with the office of the President, not the campaign. Government-required security personnel are not included in the number of campaign travelers for the purposes of identifying a comparable aircraft. The purpose for this exclusion is to avoid penalizing candidates who are required to travel with government security personnel by obliging them to pay the charter rate for a larger aircraft than would otherwise be needed to transport such candidates and their campaign travelers. All security personnel, including governmentprovided security personnel, are included, however, in determining the number of campaign travelers for purposes of calculating each candidate’s pro rata share. This is consistent with the parallel provision concerning travel on private aircraft (11 CFR 100.93(c)(1)), and with the provision concerning travel on government-operated aircraft that is reimbursed at the ‘‘private traveler’’ reimbursement rate (11 CFR 100.93(e)(1)(ii); see discussion below). A candidate’s authorized committee must thus reimburse the service provider for the same number of campaign travelers regardless of whether the travel occurs 13 The term ‘‘government-required personnel’’ encompasses individuals assigned to accompany a campaign traveler for reasons of national security or other official purposes as required by law or government policy. It does not encompass a Federal officeholder’s staff or other individuals who are ‘‘required’’ by the officeholder solely by virtue of their staff positions. E:\FR\FM\07DER1.SGM 07DER1 erowe on DSK5CLS3C1PROD with RULES Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations on a private or government-operated aircraft, and regardless of whether the candidate is reimbursing at the ‘‘per candidate campaign traveler’’ reimbursement rate or at the ‘‘private traveler’’ reimbursement rate. The general rule regarding reimbursement to a candidate committee by members of the news media and governmentprovided security personnel (11 CFR 100.93(b)(3)) applies to both private and government-operated aircraft. For example, if eleven passengers (Presidential Candidate A and two campaign staffers traveling on behalf of Presidential Candidate A, Senate Candidate B traveling on behalf of her own campaign, PAC representative P, four members of the news media traveling with Presidential Candidate A, and two members of the Secret Service required to travel with Candidate A), travel on a twelve-seat government aircraft, reimbursement would be required at the normal and usual charter rate for a comparable aircraft of sufficient size to accommodate nine passengers. The two Secret Service agents need not be counted when determining the size of a comparable aircraft because they would be ‘‘government-required personnel.’’ Given that no portion of the normal and usual charter fare or rental charge may be attributed to any non-candidate campaign traveler or any other passenger, the charter fare would be divided by ten (the number of candidates, their campaign staffers, members of the media, and security personnel traveling with the candidates). PAC representative P would not be required to reimburse the government entity for his or her travel and is not permitted to assume any of the payment otherwise required from the candidates. Thus, Presidential Candidate A would pay nine-tenths of the full charter rate for the comparable nine-seat aircraft, and Senate Candidate B would pay onetenth of the charter cost. The four media representatives or their employers may reimburse Presidential Candidate A for up to four-tenths of the cost of the nineseat charter aircraft, or pay the government that amount directly, pursuant to 11 CFR 100.93(b)(3).14 Likewise, the Secret Service may reimburse Candidate A up to two-tenths of the cost for the two Secret Service representatives, or it may pay that 14 The Commission is aware that the White House Travel Office has agreements with the White House Correspondents Association regarding travel arrangements for members of the media, and these rules are not intended to alter those agreements. VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 amount directly to the government entity providing the aircraft. 2. 11 CFR 100.93(e)(1)(ii)—‘‘Private Traveler’’ Reimbursement Rate The second rate of reimbursement, the ‘‘private traveler’’ reimbursement rate, requires payment of the rate specified by the Federal, State, or local government agency or other government entity operating the aircraft. If the government entity has established a schedule of rates based on the type of traveler, and the schedule includes a rate for private travel on its aircraft by members of the public, then the campaign traveler choosing this option must reimburse the government at that rate.15 For example, if the same eleven travelers (Presidential Candidate A and two campaign staffers traveling on behalf of Presidential Candidate A, Senate Candidate B traveling on behalf of her own campaign, PAC representative P, four members of the media traveling with Presidential Candidate A, and two Secret Service agents required to travel with Presidential Candidate A) travel aboard an aircraft operated by a State government, either candidate could choose to pay the ‘‘private traveler’’ reimbursement rate if such a rate is specified by that State government instead of the charter rate for a comparable aircraft of sufficient size to accommodate the campaign travelers. If the State government normally charges $100 per person per hour for use of the aircraft by State or Federal agencies and $200 per person per hour for private travel by authorized State employees and members of the public, then each candidate choosing this rate would pay for the campaign travelers traveling on behalf of that candidate at the $200 per person per hour rate. Presidential Candidate A is responsible for the cost of the travel of the two Secret Service agents under 11 CFR 100.93(e)(1)(ii).16 Presidential Candidate A’s payment for nine campaign travelers is a total of $1,800 per hour, although the four media representatives could reimburse Presidential Candidate A up to a total of $800 per hour to cover the cost of their 15 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, which is the private traveler rate for those aircraft. See Fiscal Year 2010 Reimbursement Rates, available at https:// www.defenselink.mil/comptroller/rates/fy2010/ 2010_f.pdf and https://www.defenselink.mil/ comptroller/rates/fy2010/2010_h.pdf. 16 Because Candidate A is responsible for the cost of the Secret Service travelers, the Secret Service may reimburse Candidate A for the cost of their travel under 11 CFR 100.93(b). PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 63959 travel and the two Secret Service agents could reimburse Presidential Candidate A up to a total of $400 per hour for their travel. Candidate B’s cost is $200 per hour to cover the candidate’s own travel. PAC representative P must pay for his or her own travel at $200 per hour.17 If, however, the government entity’s private traveler reimbursement rate is based on an hourly rate for the entire aircraft, then the candidate choosing this rate would calculate the amount that he or she must reimburse by determining what his or her share of the entire hourly rate split between the two candidates and the PAC is, in proportion to the number of campaign travelers traveling on behalf of each political committee, including the media representatives traveling with a candidate, and security personnel. There are a total of eleven campaign travelers on the flight (Presidential Candidate A, two campaign staffers traveling on behalf of Presidential Candidate A, Senate Candidate B, four members of the media traveling with Presidential Candidate A, two Secret Service agents required to travel with Presidential Candidate A, and PAC Representative P), so Presidential Candidate A must pay nine-elevenths of the hourly rate, for which the media could reimburse the candidate up to four-elevenths of the charter rate and the Secret Service could reimburse the candidate up to two-elevenths of the charter rate; Candidate B must pay oneeleventh; and PAC Representative P must pay one-eleventh. The Commission did not receive any comments on this aspect of the proposed rule. The rule is unchanged from that proposed in the NPRM. See 11 CFR 100.93(e)(1)(ii). 3. Travel on Air Force One or Two The Commission sought, but did not receive, comments on whether it should promulgate final rules specifically to address travel on Air Force One and Two.18 The Commission is not promulgating a separate rule for travel on these aircraft because the application of either of the rates in 11 CFR 17 Pursuant to 11 CFR 100.93(a)(3)(i)(A) any individual traveling in connection with an election for Federal office on behalf of a political committee is a ‘‘campaign traveler.’’ 18 Air Force One is a designation assigned to any airplane that is providing transportation to the President of the United States. Air Force Two is the designation assigned to any airplane that is providing transportation to the Vice President of the United States. Marine One is the designation used for any Marine helicopter that is providing transportation to the President. Because ‘‘aircraft’’ includes airplanes and helicopters, this discussion is equally applicable to Marine One. E:\FR\FM\07DER1.SGM 07DER1 63960 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations 100.93(e)(1) is sufficient to address travel on Air Force One and Two. Specifically, reimbursement for travel on Air Force One or Two using the ‘‘per candidate campaign traveler’’ rate (11 CFR 100.93(e)(1)(i)) already provides that the charter rate be based on an aircraft of ‘‘sufficient size to accommodate campaign travelers,’’ excluding all government-required personnel and equipment. Travel aboard Air Force One or Two therefore would simply be a specific application of the more general rule applicable for travel on all government-operated aircraft. erowe on DSK5CLS3C1PROD with RULES 4. Non-Candidate Campaign Travelers The Commission sought, but did not receive, comments on the extent to which campaign travelers fly on government-operated aircraft when not traveling with, or on behalf of, a candidate or candidate’s committee. For example, a representative of a political party committee might travel in connection with a Federal election on a government-operated aircraft on which a Federal candidate is not also present. In the absence of a record indicating that this travel is frequent enough to justify a separate provision in the rule, or that a special rule is needed, the final rules do not treat this potentially hypothetical situation differently from other travel by non-candidate campaign travelers on non-commercial aircraft. Thus, new 11 CFR 100.93(e)(2) is the same as the 2003 rule for travel on a government aircraft. That is, if the noncandidate campaign traveler travels to a military base or other location not accessible to the general public, the travel must be reimbursed at the lowest unrestricted and non-discounted firstclass airfare to or from the city with regularly scheduled first-class commercial airline service that is geographically closest to the military airbase or other location actually used. Otherwise, the campaign traveler must reimburse the government in accordance with 11 CFR 100.93(c)(3). 5. Time Period for Reimbursement of Travel on Government Conveyances New 11 CFR 100.93(e) provides that payment must be made within the time period specified by the government entity providing the aircraft or other conveyance. This policy defers to a government entity’s management of its own aircraft and avoids potential conflicts with that entity’s own regulations. The NPRM did not propose a specific time period for reimbursement for travel on government-operated aircraft under either of the alternative rates, and the Commission did not receive any VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 comments on an appropriate period. The government entity’s accountability for the use of its aircraft serves as a check on potential abuses in payment delays by campaign travelers. The first alternative would have required reimbursement for aircraft owned by candidates and their immediate family members at the rates set forth in the Commission’s 2003 travel rules: first-class, coach, or charter I. Proposed 11 CFR 100.93(g)— rates, depending on whether the origin Exception for Aircraft Owned by Federal and destination cities are served by Candidates and Their Immediate Family regularly scheduled commercial airline Members service. The second alternative would have HLOGA’s amendments to 2 U.S.C. required reimbursement for the 439a contain an exception from the ‘‘incremental cost’’ of operating the payment and reimbursement aircraft, meaning the actual cost of fuel requirements for travel aboard aircraft and any incremental costs such as that are ‘‘owned or leased’’ by a landing fees but excluding depreciation. candidate or a candidate’s immediate The third alternative would have been family member (hereinafter ‘‘candidate owned’’), including an aircraft owned or based on the ‘‘actual cost’’ of operating the aircraft, such as the hourly, mileage, leased by any entity in which the or other applicable rate charged the candidate or a member of the candidate, corporation, or immediate candidate’s immediate family ‘‘has an family member for the costs of the ownership interest,’’ provided that (1) travel. For example, if a candidate the entity is not a ‘‘public corporation’’ traveled on an aircraft leased by an and (2) the use of the aircraft is not immediate family member at a cost of ‘‘more than the candidate’s or $1,000 per hour, the appropriate immediate family member’s reimbursement rate to that family proportionate share of ownership member would have been $1,000 per allows.’’ 2 U.S.C. 439a(c)(3)(A). In the NPRM the Commission proposed a rule, hour. New 11 CFR 100.93(g) combines new 11 CFR 100.93(g), in which the several aspects of these alternatives. The exception would apply to all of the Commission is also re-organizing the restrictions on expenditures for air rule in recognition that an increasing travel in new 2 U.S.C. 439a(c). See discussion of new 11 CFR 113.5, below. number of aircraft are operated through shared-ownership arrangements, while The Commission requested comments other aircraft may be owned solely by on this proposed exception, new 11 CFR the candidate or the candidate’s 100.93(g), but received none. immediate family members. In addition, While the exception relieves the the new rules reflect the statutory restrictions on expenditures, it still limitation in 2 U.S.C. 439a(c)(3)(A) that requires a candidate to reimburse the in situations where the aircraft is owned service providers (candidates, members through a shared-ownership of their immediate family, or entities in arrangement, the candidate’s use of the which either owns an interest) if the aircraft must not exceed the candidate seeks to avoid receiving an inproportional ownership interest kind contribution from the service attributable to the candidate or the provider for the candidate’s use of the candidate’s immediate family member. aircraft. See 11 CFR 100.93. New section The new rule provides three 100.93(g) sets out the appropriate alternative rates to address three reimbursement rates. Even though different scenarios: (1) A sharedcandidates for Federal office may make ownership arrangement where the unlimited contributions to their own candidate uses the aircraft within the campaigns, those contributions must be limits of the relevant ownership reported by their authorized interest; (2) a shared-ownership committees.19 11 CFR 110.10; Advisory arrangement where the candidate uses Opinions 1991–09 (Hoagland), 1990–09 the aircraft in excess of the limits of the (Mueller), 1985–33 (Collins), and 1984– relevant ownership interest; or (3) the 60 (Mulloy). Contributions by all other aircraft is wholly owned by a candidate persons, including immediate family or a candidate’s immediate family members, are subject to the applicable members. amount limits and source prohibitions. Because the exception in 2 U.S.C. 11 CFR 110.1 et seq. 439a(c)(3) for travel on aircraft owned The NPRM proposed three alternative by candidates or members of their reimbursement rates as follows: immediate family permits otherwise restricted or prohibited expenditures by 19 There is one exception to this general rule: a candidates and their committees, the $50,000 limit applies to publicly-funded exception is limited only to travel by presidential candidates in the primary and the general election. See 11 CFR 9003.2(c), 9033.2(b)(2), candidates or persons traveling on and 9035.2(a)(1). behalf of candidates, their authorized PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E:\FR\FM\07DER1.SGM 07DER1 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations erowe on DSK5CLS3C1PROD with RULES committees, and House candidate leadership PACs. Similarly, the exception applies only to travel by a candidate on an aircraft owned or leased by that candidate or that candidate’s immediate family member. The exception does not extend, however, to travel by other candidates who are traveling on behalf of their own campaigns, or for individuals traveling on behalf of other political committees. These latter campaign travelers must reimburse the candidate or other owner of the aircraft according to the rates set forth in 11 CFR 100.93(c). For example, if Senate Candidate A is traveling on behalf of his or her own campaign with Candidate B on behalf of his or her own campaign on an aircraft owned by Candidate B, then Candidate A must pay half of the cost of the normal and usual charter rate for a comparable aircraft of comparable size. Candidate B must pay for (or treat as a personal contribution) the candidate’s own portion of the flight pursuant to the applicable rate in 11 CFR 100.93(g). If Party Committee Official C travels with Candidate B on behalf of the party committee on an aircraft owned by Candidate B, the party committee must pay the rate determined in accordance with 11 CFR 100.93(c)(3). The 11 CFR 100.93(c)(3) payment exception for travel with a candidate would not apply to travel on a candidate-owned aircraft because the candidate is not paying a charter rate for the entire aircraft in accordance with 11 CFR 100.93(c)(1). 1. 11 CFR 100.93(g)(1)(i)—Use Within the Limits of a Shared-Ownership Arrangement The exception in 11 CFR 100.93(g) applies to 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,’’ so long as that entity is not a corporation with publicly traded shares. The rates in 11 CFR 100.93(g) therefore apply to a wide variety of shared-ownership arrangements, including time-sharing arrangements and certain lease arrangements, and regardless of whether the ownership is made available to the candidate through a commercial operator certificated by the FAA. When a candidate or a candidate’s immediate family member owns or leases an aircraft through any form of shared-ownership or lease agreement, 11 CFR 100.93(g)(1)(i) requires the candidate’s committee to reimburse the candidate, candidate’s immediate family member, or the administrator of the aircraft (e.g., NetJets)—or treat as a personal contribution from the candidate, where the candidate is the VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 owner or lessee—for the hourly, mileage, or other applicable rate charged to the candidate, immediate family member, or corporation or other entity through which the aircraft is ultimately available to the candidate, for the costs of the travel. This reimbursement rate applies only to the extent that the candidate’s use of the aircraft does not exceed the proportional share of the ownership interest in the aircraft held by the candidate or candidate’s immediate family member, as defined in 11 CFR 100.93(g)(3). Because a candidate would receive an in-kind contribution to the extent that the candidate is provided with something of value at less than the normal and usual cost, the ownership or lease agreement cannot provide a disproportionate benefit to the candidate. Thus, the amount of use to which the candidate or the candidate’s immediate family member is entitled under an ownership or lease agreement must be similar to the amount of use to which other similarly situated owners are entitled. For example, if a candidate is one of four owners who each own 25 percent of an aircraft in a shared-ownership arrangement, the ownership agreement cannot allow the candidate to use the aircraft free of charge or at a reduced rate forty percent of the time while each other owner has access to the aircraft for only twenty percent of the time. 2. 11 CFR 100.93(g)(1)(ii)—Use in Excess of the Limits of a Shared Ownership Arrangement In some shared-ownership agreements, an ownership interest entitles each ‘‘owner’’ to a specified amount of use of one or more aircraft. In this case, if a candidate’s flight exceeds his or her proportional ownership interest in the aircraft, or that of the candidate’s immediate family member, that flight falls outside of 11 CFR 100.93(g). See new 11 CFR 100.93(g)(1)(ii). Only a flight that exceeds the use permitted under the ownership agreement, however, would be excluded from the exception in 11 CFR 100.93(g). For example, if a candidate’s spouse owns an interest in an aircraft through a time-share arrangement that entitles the spouse to ten hours of flight time per month, and the candidate uses the aircraft for three separate five-hour flights in a single month, the rate provided in 11 CFR 100.93(g)(1)(i) applies to the first 10 hours but does not apply to the last five hour flight. For the purposes of this example, the spouse’s ten hours of flight time per month must not have been otherwise used by the spouse or another person. If the spouse or another person PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 63961 does make use of the aircraft for any part of the ten allotted hours, the candidate’s use of the aircraft would be combined with the other uses for purposes of calculating the ten hour limit. For the last five hour flight, a Senate, presidential, or vice-presidential candidate must provide reimbursement at the rate established by 11 CFR 100.93(c)(1), in accordance with 11 CFR 100.93(g)(1)(ii). Excessive use by a House candidate, on the other hand, would be subject to the general prohibition on non-commercial air travel by House candidates. See 11 CFR 100.93(c)(2). 3. 11 CFR 100.93(g)(1)(iii)—Wholly Owned Aircraft When the entire aircraft is owned by a candidate as an individual, or by the candidate’s immediate family members as individuals, the candidate’s authorized committee need reimburse (or report as an in-kind contribution, to the extent permissible) only the pro rata share per campaign traveler of the costs associated with the trip.20 11 CFR 100.93(g)(1)(iii). These associated costs include, but are not limited to, the cost of fuel and crew, and a proportionate share of annual and recurring maintenance costs. Id. For example, because aircraft must periodically undergo regularly scheduled maintenance in order to comply with applicable safety laws, the candidate’s committee must pay its proportionate share of these regular costs. The candidate’s committee need not pay, however, for general depreciation in the value of the aircraft. Similarly, reimbursement for piloting and crew expense is not required when the candidate or candidate’s immediate family member pilots the aircraft and serves as the crew. On the other hand, if a pilot or crew is employed for the flight, the cost of their services must be included in the reimbursement rate. 4. 11 CFR 100.93(g)(2) and (3)— Ownership Interest and Proportional Share of an Ownership Interest HLOGA does not define the term ‘‘ownership interest.’’ The Commission interprets the term ‘‘ownership interest’’ to include fractional ownership, voting or equity interest, or use arrangements, 20 As discussed above, with the exception of publicly funded presidential candidates, candidates are permitted to make unlimited contributions to their own campaigns. Contributions by all other persons, including immediate family members, are subject to the applicable amount limits and source prohibitions. An aircraft owned entirely by a family-held corporation would be treated as an aircraft accessed through a multiple ownership arrangement under 11 CFR 100.93(g)(1)(i) or (ii), rather than (iii). E:\FR\FM\07DER1.SGM 07DER1 erowe on DSK5CLS3C1PROD with RULES 63962 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations 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. Similarly, HLOGA does not define the term ‘‘public corporation.’’ The Commission interprets the term ‘‘public corporation’’ as applying to any corporation with publicly traded shares. See 11 CFR 100.93(g)(2). Because HLOGA explicitly extends the exception contained in 2 U.S.C. 439a(c)(3)(A) to ‘‘aircraft owned by an entity that is not a public corporation,’’ 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 11 CFR 100.93(g), so long as a candidate or a member of the candidate’s immediate family owns an equity interest or voting interest in that entity. The HLOGA exception applies so long as a candidate’s 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. 439(c)(3)(A). However, the statute does not specify the exact nature of the relationship between ownership shares and use of the aircraft. New 11 CFR 100.93(g)(3) defines a ‘‘proportional share of the ownership interest’’ as ‘‘the amount of use to which a candidate or immediate family member is entitled under an ownership or lease agreement.’’ Rather than account for all of the potential ownership structures of an entity that may own or lease an aircraft, new 11 CFR 100.93(g)(3) establishes one general condition for the exception to apply: Unless the aircraft is owned entirely by the candidate or the candidate’s immediate family members, 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. The Commission does not intend to delve into the various ownership structures, so long as the ownership or lease agreement does not provide a benefit to the candidate that is disproportionally greater than the benefit provided to others with similar ownership interests in the aircraft. In order to ensure that the candidate’s use of the aircraft remains within the parameters of use specified in the agreement, the candidate’s committee must, prior to each flight, obtain certification from the individual or entity making the aircraft available that the candidate’s planned use, in combination with the other uses of the VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 aircraft by the person or persons with the ownership interest in the aircraft, will not exceed the amount of use permitted under the ownership or lease agreement. If any part of a flight does exceed the use permitted under the ownership interest, then payment for the entire flight must be made under 11 CFR 100.93(c), not 11 CFR 100.93(g). For example, if a candidate plans a fivehour flight and the candidate’s spouse is entitled to use an aircraft for ten hours per month through the spouse’s position with a partnership that participates in a time-share agreement, the candidate must not make use of the aircraft until it obtains certification from the spouse, the partnership, or time-share provider that the candidate’s planned five-hour flight will not cause the spouse to exceed the spouse’s ten-hour limit. If the spouse has already used the aircraft for six hours that month, the candidate’s planned use would cause the spouse to exceed the ten-hour limit and the entire five-hour flight would fall under 11 CFR 100.93(c), not 11 CFR 100.93(g). See 11 CFR 100.93(g)(1)(ii). Some ownership agreements, however, may include specific fees for any use of an aircraft above or beyond the normal amount of permitted use under the agreement. For example, an ownership agreement might provide that one annual ownership share entitles that owner to use an aircraft for twenty hours per month without additional charge, and up to an additional one hundred hours per month at an additional charge of $1,000 per hour. In such cases, the hourly fee for the additional hundred hours would be included within the ‘‘proportional share’’ of that ownership interest. A candidate with such an ownership interest could therefore use the aircraft for up to one hundred and twenty hours in a month and reimburse the entity operating the aircraft at the rate in 11 CFR 100.93(g)(1)(i). The candidate would be required to pay the operator for one-twelfth of the ownership share (the cost of one month of the annual ownership share) to cover the first twenty hours, plus $1,000 for each of the additional hundred hours ($100,000). 5. Specific Time Period for Repayment The NPRM inquired whether the Commission should require the candidate’s committee to make the payment required by 11 CFR 100.93(g) within a specific time period, such as no later than seven days from the first day of travel, which would be consistent with payment for travel on other aircraft under 11 CFR 100.93(c). The Commission did not receive any PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 comments on this issue. The Commission is not specifying a time period for repayment in the rule itself in expectation that, in shared-ownership or lease arrangements, the candidate will make the repayment in accordance with the normal business practices of the entity administering the sharedownership or lease agreements. If not, that entity will be deemed to have made a loan to the candidate’s committee that would, if not repaid within the required commercially reasonable period, become an in-kind contribution to the candidate’s authorized committee, subject to the limits, prohibitions, and reporting requirements of the Act. J. 11 CFR 100.93(i)—Reporting Requirements The Commission is relocating the reporting requirements of 11 CFR 100.93 from paragraph (h) to paragraph (i), as proposed in the NPRM, but is not making any substantive revisions to those requirements. The Commission did not receive any comments on the reporting requirements. K. 11 CFR 100.93(j)—Recordkeeping Requirements Consistent with the changes to the reimbursement rates required for candidates, authorized committees of candidates, and leadership PACs of House candidates, the Commission is updating the recordkeeping requirements for non-commercial travel at 11 CFR 100.93(i), which are being relocated to new 11 CFR 100.93(j). First, the revised recordkeeping requirements maintain the basic elements of the Commission’s 2003 travel rules. Depending on the eligible reimbursement rate, see new 11 CFR 100.93(c), (e), and (g), political committees are required to maintain the appropriate records for non-commercial travel under this section. What records are necessary depends on whether a campaign traveler may pay first-class or a coach rate for a flight, or is required to reimburse at the charter rate or one of the rates applicable for use of government conveyances. Second, the Commission is requiring candidate committees to obtain and keep copies of any shared-ownership or lease agreements, as well as the preflight certifications of compliance with those agreements, that the candidate’s committee must obtain to comply with the requirements of 11 CFR 100.93(g)(1)(i) and (g)(3). These records are necessary to determine whether a candidate’s use of the aircraft would cause the person with the ownership interest in the aircraft (the candidate or the candidate’s immediate family E:\FR\FM\07DER1.SGM 07DER1 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations member) to exceed the amount of use of the aircraft included in that ownership interest. The Commission also sought comment on the appropriate duration of this record retention requirement, but did not receive any comments. Thus, the general record retention period of three years applies to these documents. See 11 CFR 104.14(b)(3). All other applicable recordkeeping requirements remain in effect with respect to these documents. See, e.g., 11 CFR 104.14(b). erowe on DSK5CLS3C1PROD with RULES IV. Restrictions on Use of Campaign Funds for Flights on Noncommercial Aircraft (2 U.S.C. 439a(c))—11 CFR 113.5 In addition to amending the travel reimbursement regulations at 11 CFR 100.93, the Commission is adding new 11 CFR 113.5 to implement the limit on expenditures for non-commercial air travel established by HLOGA. The Commission is promulgating new 11 CFR 113.5 to provide guidance regarding the making of expenditures, which is parallel to the guidance provided in 11 CFR 100.93 regarding contributions. The final rule is identical to proposed 11 CFR 113.5. In the NPRM, the Commission requested comments as to whether a new rule (11 CFR 113.5) is necessary to implement new 2 U.S.C. 439a(c) in light of the proposed revisions to 11 CFR 100.93, but did not receive any comments addressing the question. A. New 11 CFR 113.5(a)—Presidential, Vice-Presidential and Senate Candidates New 11 CFR 113.5(a)(1) implements 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 for aircraft flights, with the two exceptions provided in HLOGA (in addition to the special provisions for travel on government-operated aircraft and candidate-owned aircraft). The first exception is for air travel on ‘‘commercial’’ flights. See 11 CFR 113.5(a)(1). The second exception is for air travel on ‘‘non-commercial’’ flights if either the candidate, the authorized committee, or another political committee, reimburses the provider of the aircraft for the candidate’s pro rata share per candidate campaign traveler of the normal and usual charter fare or rental charge for travel on a comparable aircraft of comparable size within seven days of when the flight began. See 11 CFR 113.5(a)(2). New 11 CFR 113.5(a)(1) and (2) provide cross-references to definitions of the terms ‘‘commercial travel’’ and ‘‘non-commercial travel’’ in VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 11 CFR 100.93(a)(3)(iv) and (v). The ‘‘candidate’s pro rata share per candidate campaign traveler of the normal and usual charter fare’’ is calculated in the same manner as in 11 CFR 100.93(c)(1). A candidate’s committee will not be considered to have made an expenditure when members of the media and governmentprovided security personnel pay the service provider directly for their portion of the travel as permitted under 11 CFR 100.93(b)(3). Travel on aircraft provided by a Federal, State or local government entity is addressed in new 11 CFR 113.5(a)(3), consistent with new 11 CFR 100.93(e)(1) (government conveyances). Travel on candidateowned aircraft is addressed below. The Commission received no comments specifically addressing new 11 CFR 113.5(a). B. New 11 CFR 113.5(b)—House Candidates As noted above, HLOGA prohibits House candidates and their authorized committees and leadership PACs from spending campaign funds on private, non-commercial air travel. 2 U.S.C. 439a(c)(2). Instead, House candidates must spend campaign funds on air travel only for commercial air travel, or for travel on aircraft owned by the candidate or the candidate’s immediate family member, or for flights operated by the Federal government or a State or local government. Because House candidates, their authorized committees, and their leadership PACs are prohibited from spending campaign funds on non-commercial travel, other than travel permitted under 11 CFR 100.93(e) (government conveyances) or 11 CFR 100.93(g) (aircraft owned or leased by a candidate or a candidate’s immediate family member), the new rule at 11 CFR 113.5(b) also prohibits House candidates from accepting inkind contributions in the form of noncommercial air travel. In the NPRM, the Commission requested comment and received one comment, which expressed support. Accordingly, the Commission is implementing this proposal in new 11 CFR 113.5(b)(1) and (2). Paragraph (b)(1) contains the same ‘‘commercial exception’’ as is set forth in 11 CFR 113.5(a)(1), discussed above. Travel on government-provided aircraft is reflected in paragraph (b)(2). Travel on candidate-owned aircraft is addressed below. PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 63963 C. New 11 CFR 113.5(c)—Exception for Aircraft Owned or Leased by Candidates and Immediate Family Members of Candidates As noted above, the restrictions on expenditures in HLOGA do not apply to travel aboard aircraft that are owned or leased by a candidate or the candidate’s immediate family members, including 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). New 11 CFR 113.5(c)(1) implements this statutory provision and crossreferences the definition of ‘‘proportional share of ownership’’ in 11 CFR 100.93(g)(3). New 11 CFR 113.5(c)(2) states that candidates and immediate family members will be considered to own or lease aircraft under the conditions described in 11 CFR 100.93(g)(2), namely, when there is an ownership interest in an entity (other than a public corporation) that owns the aircraft. New 11 CFR 113.5(c)(3) crossreferences the definition of ‘‘immediate family member’’ in 11 CFR 100.93(g)(4). The Commission received no comments specifically addressing 11 CFR 113.5(c) as proposed in the NPRM. D. New 11 CFR 113.5(d)—In-kind Contribution New 11 CFR 113.5(d) states that the unreimbursed value of transportation provided to any campaign traveler (as defined in 11 CFR 100.93(a)(3)(i)), 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, and that such contributions are subject to the limits, prohibitions, and reporting requirements of the Act. As noted above, House candidates are generally prohibited from receiving such contributions. The Commission received no comments specifically addressing 11 CFR 113.5(d) as proposed in the NPRM and is adopting the rule proposed in the NPRM. E. Change of Title for 11 CFR Part 113 Along with adding new 11 CFR 113.5, which implements new 2 U.S.C. 439a(c), the Commission is changing the title of Part 113. The former title, ‘‘Use of Campaign Accounts for NonCampaign Purposes,’’ does not encompass new section 113.5, which governs use of campaign funds for E:\FR\FM\07DER1.SGM 07DER1 63964 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations campaign travel. The new title for Part 113 is ‘‘Permitted and Prohibited Uses of Campaign Accounts.’’ The Commission received no comments addressing this change and is adopting the rule proposed in the NPRM. V. Publicly-Financed Presidential and Vice-Presidential Candidates—11 CFR 9004.7 and 9034.7 Although HLOGA does not amend either the Presidential Election Campaign Fund Act (Fund Act) (26 U.S.C. 9001 et seq.) or the Presidential Primary Matching Payment Account Act (Matching Payment Act) (26 U.S.C. 9031 et seq.), the Commission proposed in the NPRM to make certain amendments to its regulations implementing these laws to conform them to the changes it proposed to 11 CFR 100.93. The Commission received no comments regarding these proposals and is implementing them without change from the NPRM. Sections 9004.7 and 9034.7 are substantively identically worded regulations promulgated under the authority of the Fund Act and the Matching Payment Act, respectively, and cross-reference 11 CFR 100.93. Both regulations prescribe the procedures that publicly funded primary and general election presidential campaigns must follow in attributing their travel expenses to campaign-related and to non-campaign-related activities. The Commission is making the following technical amendments to these regulations. erowe on DSK5CLS3C1PROD with RULES A. Aircraft Revised 11 CFR 9004.7(b)(5)(i), (iii), and (v), and 11 CFR 9004.7(b)(8) replace the word ‘‘airplane’’ with the word ‘‘aircraft.’’ These changes conform the regulations to the terminology in HLOGA, as well as revised 11 CFR 100.93 and new 11 CFR 113.5. B. Recordkeeping Requirements Former 11 CFR 9004.7(b)(5)(v) and 11 CFR 9034.7(b)(5)(v) required the authorized committees of presidential and vice-presidential candidates to maintain documentation of the lowest unrestricted non-discounted airfare as required in former 11 CFR 100.93(i)(1) or (2). Former sections 100.93(i)(1) and (2) contained recordkeeping requirements relating to rates of reimbursement prescribed in former 11 CFR 100.93(c) and (e). Revised 11 CFR 100.93, however, replaces the old reimbursement rate for non-commercial air travel by presidential and vicepresidential candidates with a rate based on the ‘‘pro rata share per campaign traveler’’ of the normal and VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 usual charter fare or rental charge for travel on a comparable aircraft of comparable size, and sets out the corresponding recordkeeping requirements in 11 CFR 100.93(j)(1). The Commission is therefore revising 11 CFR 9004.7(b)(5)(v) and 11 CFR 9034.7(b)(5)(v) to conform them to the new recordkeeping requirements in amended 11 CFR 100.93(j)(1). The Commission is also amending the final sentence in sections 9004.7(b)(5)(v) and 9034.7(b)(5)(v), which address recordkeeping requirements for travel on other conveyances to reflect that the recordkeeping requirements for other conveyances are now addressed in 11 CFR 100.93(j)(3). 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 merely reflect an extension of existing similar rules. To the extent that operators of air-taxi services or ondemand air charter services are small entities indirectly impacted by these rules, any economic 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. C. 11 CFR 9004.7(b)(8) and 11 CFR 9034.7(b)(8)—Conforming Changes in Terminology 11 CFR Part 100 Elections. The Commission is revising 11 CFR 9004.7(b)(8) and 9034.7(b)(8) to conform the terminology to that used in new 2 U.S.C. 439a(c) and in revised 11 CFR 100.93. Former §§ 9004.7(b)(8) and 9034.7(b)(8) used the same terminology as former section 100.93 in describing aircraft that are ‘‘licensed for compensation or hire’’ under various FAA certification authorities. Revised 11 CFR 100.93 defines the term ‘‘noncommercial travel,’’ and uses the term ‘‘aircraft’’ instead of ‘‘airplane.’’ Accordingly, revised 11 CFR 9004.7(b)(8) and 11 CFR 9034.7(b)(8) state that travel on non-commercial aircraft is governed by 11 CFR 100.93 and that the term ‘‘non-commercial travel’’ is defined in accordance with 11 CFR 100.93(a)(3)(v). 11 CFR Part 113 Campaign funds, Political candidates. 11 CFR Part 9034 Campaign funds, Reporting and recordkeeping requirements. ■ For the reasons set out in the preamble, the Federal Election Commission is amending subchapters A, E, and F of chapter 1 of title 11 of the Code of Federal Regulations as follows: Certification of No Effect Pursuant to 5 U.S.C. 605(b) Authority: 2 U.S.C. 431, 434, 438(a)(8), and 439a(c). [Regulatory Flexibility Act] * The Commission certifies that the attached rules 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 are affected by these final rules, which impose obligations only on Federal candidates, their campaign committees, other individuals traveling in connection with Federal elections, 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 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 do not impose ■ PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 List of Subjects 11 CFR Part 9004 Campaign funds. PART 100—SCOPE AND DEFINITIONS (2 U.S.C. 431) 1. The authority citation for part 100 is revised to read as follows: ■ * * * * 2. Section 100.93 is revised to read as follows: § 100.93 Travel by aircraft or other means of transportation. (a) Scope and definitions. (1) This section applies to all campaign travelers who use noncommercial travel. (2) Campaign travelers who use commercial travel, such as a commercial 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 traveling in connection with an election for Federal office or any individual traveling in connection with an election for Federal office on behalf of a candidate or political committee; or E:\FR\FM\07DER1.SGM 07DER1 erowe on DSK5CLS3C1PROD with RULES Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations (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. (vi) Comparable aircraft means an aircraft of similar make and model as the aircraft that actually makes the trip, with similar amenities as that aircraft. (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 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 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 VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 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. (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. Contributions are subject to the reporting requirements, limitations and prohibitions of the Act. (3) When a candidate is accompanied by a member of the news media, or by security personnel provided by any Federal or State government, the news media or government security provider may reimburse the political committee paying for the pro-rata share of the travel by the member of the media or security personnel, or may pay the service provider directly for that prorata share, up to the applicable amount set forth in paragraphs (c)(1), (c)(3), (d), (e), or (g) of this section. A payment made directly to the service provider may be subtracted from the amount for which the political committee is otherwise responsible without any contribution resulting. No contribution results from reimbursement by the media or a government security provider to a political committee in accordance with this paragraph. (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 a candidate or family owned 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 or the candidate’s authorized committee must pay the pro rata share per campaign traveler 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 PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 63965 dividing the normal and usual charter fare or rental charge by the number of campaign travelers on the flight that are traveling on behalf of such candidates or their authorized committees, including members of the news media, and security personnel traveling with a candidate. No portion of the normal and usual charter fare or rental charge may be attributed to any campaign travelers that are not traveling on behalf of such candidates or their authorized committees, or any other passengers, except as permitted under paragraph (b)(3) of this section. (2) Travel by or on behalf of House candidates and their leadership PACs. Except as otherwise provided in paragraphs (e) and (g) of this section, a campaign traveler who is a candidate for election 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. When a candidate’s authorized committee pays for a flight pursuant to paragraph (c)(1) of this section, no payment is required from other campaign travelers on that flight. Otherwise, a campaign traveler not covered by paragraphs (c)(1) or (c)(2) of this section, including persons traveling on behalf of a political party committee, separate segregated fund, nonconnected political committee, or a leadership PAC other than a leadership PAC of a candidate for election for the office of Representative in, or Delegate or Resident Commissioner to, the Congress, must pay the service provider no less than the following for each leg of the trip: (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 normal and usual charter fare or rental charge for a comparable commercial aircraft of sufficient size to accommodate all E:\FR\FM\07DER1.SGM 07DER1 erowe on DSK5CLS3C1PROD with RULES 63966 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations campaign travelers, and security personnel, if applicable. (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) Travel by or on behalf of candidates, their authorized committees, or House candidate Leadership PACs. If a campaign traveler traveling on behalf of a candidate, an authorized committee, or the leadership PAC of a House candidate 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 government entity, within the time specified by that government entity, either: (i) The pro rata share per campaign traveler 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 number of campaign travelers on the flight that are traveling on behalf of candidates, authorized committees, or House candidate leadership PACs, including members of the news media, and security personnel, if applicable. No portion of the normal and usual charter fare or rental charge may be attributed to any other campaign travelers or any other passengers, except as permitted under paragraph (b)(3) of this section. For purposes of this paragraph, the comparable aircraft need not accommodate any government-required personnel and equipment; or (ii) The private traveler reimbursement rate, as specified by the governmental entity providing the aircraft, per campaign traveler. (2) Other campaign travelers. When a candidate’s authorized committee, or a House candidate’s leadership PAC pays for a flight pursuant to paragraph (e)(1) of this section, no payment is required VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 from any other campaign travelers on that flight. Otherwise, a campaign traveler not covered by paragraph (e)(1) of this section, including persons traveling on behalf of a political party committee, separate segregated fund, nonconnected political committee, or a leadership PAC other than a leadership PAC of a candidate for the office of Representative in, or Delegate or Resident Commissioner to, the Congress, must pay the government entity, within the time specified by that government entity, either: (i) For travel to or from a military airbase or other location not accessible to the general public, the lowest unrestricted and non-discounted firstclass airfare to or from the city with regularly scheduled first-class commercial airline service that is geographically closest to the military airbase or other location actually used; or (ii) For all other travel, in accordance with paragraph (c)(3) of this section. (3) 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 or leased by a candidate or a candidate’s immediate family member. (1) For non-commercial travel by a candidate, or a person traveling on behalf of a candidate, on an aircraft owned or leased by that candidate or an immediate family member of that candidate, the candidate’s authorized committee must pay: (i) In the case of travel on an aircraft that is owned or leased under a sharedownership or other time-share arrangement, where the travel does not exceed the candidate’s or immediate family member’s proportional share of the ownership interest in the aircraft, the hourly, mileage, or other applicable rate charged the candidate, immediate family member, or other service provider for the costs of the travel; or (ii) In the case of travel on an aircraft that is owned or leased under a sharedownership or other time-share PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 arrangement, where the travel exceeds the candidate’s or immediate family member’s proportional share of the ownership interest in the aircraft, the rate specified in paragraph (c) of this section (House candidates are prohibited from engaging in such travel); or (iii) In the case of travel on an aircraft that is not owned or leased under a shared-ownership or other time-share arrangement, the pro rata share per campaign traveler of the costs associated with the trip. Associated costs include, but are not limited to, the cost of fuel and crew, and a proportionate share of maintenance costs. (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. (3) A proportional share of the ownership interest in an aircraft means the amount of use to which the candidate or immediate family member is entitled under an ownership or lease agreement. Prior to each flight, the candidate’s committee must obtain a certification from the service provider that the candidate’s planned use of the aircraft will not exceed the candidate’s or immediate family member’s proportional share of use under the ownership or lease agreement. See paragraph (j) of this section for related recordkeeping requirements. (4) 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 which the disbursement is made in the ‘‘purpose of disbursement’’ field. E:\FR\FM\07DER1.SGM 07DER1 erowe on DSK5CLS3C1PROD with RULES Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations (j) Recordkeeping. (1) For travel on non-commercial aircraft conducted under paragraphs (c)(1), (c)(3)(iii), (e)(1), or (g) of this section, the 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) (A) 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; or (B) The private traveler reimbursement rate available in accordance with paragraph (e)(1)(ii) of this section, and the dates on which the rate is based. (iv) Where the travel is aboard an aircraft owned in part by the candidate or an immediate family member of the candidate, the ownership or lease agreement 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)(1)(i) and (ii) and (g)(3) of this section, and the certification required by paragraph (g)(3) of this section. (2) For travel on non-commercial aircraft conducted under paragraph (c)(3)(i), (c)(3)(ii), or (e)(2)(i) of this section, the 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; and (iii) The lowest unrestricted nondiscounted airfare available in accordance with paragraphs (c)(3), (e)(2)(i), 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. VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 (3) 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 3. The heading of Part 113 is revised to read as set forth above. ■ 4. The authority citation for part 113 continues to read as follows: ■ Authority: 2 U.S.C. 432(h), 438(a)(8), 439a, 441a. 5. Section 113.5 is added 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 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); (2) Noncommercial travel as provided in 11 CFR 100.93(a)(3)(v), and the pro rata share per campaign traveler of the normal and usual charter fare or rental charge for travel on a comparable aircraft of comparable size, 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 calendar days after the date the flight began, except as provided in 11 CFR 100.93(b)(3); or (3) Provided by the Federal government or by a State or local government. PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 63967 (b) House candidates and their leadership PACs. Notwithstanding any other provision of 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 proportional share of ownership, as defined by 11 CFR 100.93(g)(3), 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)(4). (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 6. The authority citation for part 9004 continues to read as follows: ■ Authority: 26 U.S.C. 9004 and 9009(b). 7. Section 9004.7 is amended by revising paragraphs (b)(5)(i), (b)(5)(iii), (b)(5)(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 E:\FR\FM\07DER1.SGM 07DER1 63968 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / Rules and Regulations amount equal to 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)(1) 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)(3) 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. PART 9034—ENTITLEMENTS 8. The authority citation for part 9034 continues to read as follows: ■ Authority: 26 U.S.C. 9034 and 9039(b). 9. Section 9034.7 is amended by revising paragraphs (b)(5)(i), (b)(5)(iii), (b)(5)(v), and (b)(8) to read as follows: ■ § 9034.7 Allocation of travel expenditures. erowe on DSK5CLS3C1PROD with RULES * * * * * (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)(1) in addition to any other documentation required in this section. For travel by other conveyances, the committee shall maintain documentation of the commercial rental VerDate Nov<24>2008 12:44 Dec 04, 2009 Jkt 220001 rate as required by 11 CFR 100.93(j)(3) in addition to any other documentation required in this section. * * * * * (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. Dated: November 20, 2009. On behalf of the Commission. Steven T. Walther, Chairman, Federal Election Commission. [FR Doc. E9–28637 Filed 12–4–09; 8:45 am] BILLING CODE 6715–01–P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 23 [Docket No. CE301; Special Conditions No. 23–241–SC] Special Conditions: Embraer S.A., Model EMB–505; High Fuel Temperature AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final special conditions; request for comments. SUMMARY: These special conditions are issued for the Embraer S.A., Model EMB–505 airplane. This airplane will have a novel or unusual design feature(s) associated with high fuel temperature. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. DATES: The effective date of these special conditions is December 1, 2009. We must receive your comments by January 6, 2010. ADDRESSES: You must mail two copies of your comments to: Federal Aviation Administration, Regional Counsel, ACE–7, Attention: Rules Docket Clerk, Docket No. CE301, Room 506, 901 Locust, Kansas City, Missouri 64106. Mark comments: Docket No. CE301. You may inspect comments in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m. FOR FURTHER INFORMATION CONTACT: Peter L. Rouse, Federal Aviation Administration, Aircraft Certification Service, Small Airplane Directorate, ACE–111, 901 Locust, Kansas City, PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 Missouri, 816–329–4135, fax 816–329– 4090. SUPPLEMENTARY INFORMATION: The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the approval design and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance. Comments Invited We invite interested people to take part in this rulemaking by sending written data, views, or arguments as they may desire. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments. We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. You can inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays. We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive. If you want the FAA to acknowledge receipt of the comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you. Discussion Background On October 9, 2006, Embraer S.A. applied for a type certificate for their new Model EMB–505. The Model EMB– 505 is a commuter category, low-winged monoplane with ‘‘T’’ tailed vertical and horizontal stabilizers, retractable tricycle type landing gear and twin turbofan engines mounted on the aircraft fuselage. Its design characteristics include a predominance E:\FR\FM\07DER1.SGM 07DER1

Agencies

Federal Election Commission

[Federal Register Volume 74, Number 233 (Monday, December 7, 2009)]
[Rules and Regulations]
[Pages 63951-63968]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-28637]

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Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 /
Rules and Regulations

[[Page 63951]]

FEDERAL ELECTION COMMISSION

11 CFR Parts 100, 113, 9004, 9034

[Notice 2009-27]

Campaign Travel

AGENCY: Federal Election Commission.

ACTION: Final rules.

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SUMMARY: The Federal Election Commission is promulgating new and
revised rules implementing the provision of the Honest Leadership and
Open Government Act governing non-commercial campaign travel on
aircraft. These changes restrict, and in some situations prohibit,
Federal candidates and certain political committees from expending
campaign funds for non-commercial air travel. The rules apply to all
Federal candidates, including publicly funded presidential candidates,
and other individuals traveling on behalf of candidates, political
party committees, and other political committees, where the travel is
in connection with Federal elections.

DATES: The effective date for the amendments to 11 CFR parts 100, 113
and 9034 is January 6, 2010. Further action on amendments to 11 CFR
part 9004, including the publication of a document in the Federal
Register announcing an effective date, will be taken after these
regulations have been before Congress for 30 legislative days pursuant
to 26 U.S.C. 9009(c).

FOR FURTHER INFORMATION CONTACT: Ms. Amy L. Rothstein, Assistant
General Counsel, Mr. Joshua S. Blume, Attorney, or Ms. Joanna S.
Waldstreicher, Attorney, 999 E Street, NW., Washington, DC 20463, (202)
694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: The Commission is promulgating several
changes to its rules in order to implement section 601 of Public Law
110-81, 121 Stat. 735, the ``Honest Leadership and Open Government Act
of 2007'' (``HLOGA''). This provision of HLOGA became effective upon
enactment on September 14, 2007. HLOGA 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).
The Commission is implementing this provision of HLOGA by adding
new Sec. 113.5 to 11 CFR Part 113, which governs the expenditure of
campaign funds by candidates for Federal office and their authorized
political committees. In addition, the Commission is promulgating
revisions to 11 CFR 100.93, which establishes 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. The revisions to 11 CFR 100.93
apply to campaign travel by, or on behalf of, candidates for Federal
office or leadership PACs of House candidates. As discussed below, the
rules leave in place the required reimbursement rate structure imposed
under the Commission's 2003 rules for travel by persons on behalf of
other political committees, such as the staff of a political party
committee, a nonconnected political committee, or a leadership PAC of a
Senate or Presidential candidate. The revisions to 11 CFR 100.93 are
also incorporated by reference into the Commission's rules governing
travel by publicly funded presidential candidates. The changes in these
final rules, however, do not substantively alter the Commission's
treatment of travel by means of transportation other than aircraft, or
of travel aboard commercial airliners or charter flights.
The Notice of Proposed Rulemaking (``NPRM'') on which these final
rules are based was published in the Federal Register on October 23,
2007. 72 FR 59953 (Oct. 23, 2007). The comment period closed on
November 13, 2007. The Commission received eight comments from eleven
commenters.\1\ The comments are available at https://www.fec.gov/law/law_rulemakings.shtml#travel07. Because no commenters requested the
opportunity to testify, the Commission did not hold a hearing on this
rulemaking.
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\1\ These comments included a written comment from the Internal
Revenue Service stating that it did not find any conflict between
its regulations and the Commission's proposed rules.
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Under the Administrative Procedure Act, 5 U.S.C. 553(d), and the
Congressional Review of Agency Rulemaking Act, 5 U.S.C. 801(a)(1),
agencies must submit final rules to the Speaker of the House of
Representatives and the President of the Senate, and publish them in
the Federal Register at least thirty calendar days before they take
effect. In addition, 26 U.S.C. 9009(c) requires that any rules or
regulations prescribed by the Commission to carry out the provisions of
the Presidential Election Campaign Fund Act be transmitted to the
Speaker of the House of Representatives and the President of the Senate
thirty legislative days before they are finally promulgated. The final
rules that follow were transmitted to Congress on November 24, 2009.

Explanation and Justification

I. Background

A. 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 normal
and usual 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 charged must pay the usual
and normal charge for that service to avoid receiving an in-kind
contribution from the person

[[Page 63952]]

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. If the
in-kind contributions are from permissible sources, they nevertheless
would be subject to the contribution limits of the Act and Commission
regulations. See 2 U.S.C. 441a-441k; 11 CFR parts 110, 114, and 115.
1. Promulgation of 11 CFR 100.93 in 2003--Payment for Non-Commercial
Travel
The usual and normal charge for travel aboard a commercial aircraft
is the publicly available price for a ticket, and the usual and normal
charge for a chartered aircraft is the publicly available charter or
lease rate. The usual and normal 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 non-commercial
aircraft that may be operated primarily for the travel of the owner and
invited guests. Because candidates for Federal office traveled on these
privately operated aircraft, the Commission's regulations provided
specific guidance about the rate of reimbursement that candidates and
others had to pay to avoid receiving an excessive or a prohibited in-
kind contribution for travel aboard such aircraft.
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 69583
(Dec. 15, 2003) (``2003 travel rules'' or ``2003 E&J''). The 2003
travel rules established an exception from the definition of
``contribution'' for payments at specified rates for non-commercial
travel in connection with a Federal election. Under the 2003 travel
rules, the payment required for non-commercial air travel varied among
the first-class, coach, or charter rate, depending on whether the
travel occurred between cities served by regularly scheduled commercial
airline service, and whether that service was available at a first-
class or coach rate. See 11 CFR 100.93(a)(3)(i) and (c) (2004).
2. Revisions in 2003 to 11 CFR 9004.7 and 9034.7--Travel by
Presidential and Vice-Presidential Candidates Accepting Public Funds
Candidates in the presidential primary elections may qualify to
receive partial public funding in the form of matching payments from
the Federal government. Additionally, presidential general election
candidates may qualify to receive outright grants of public funds. In
both cases, the presidential 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. 9003(b) and (c), and 9033(b).
As part of the 2003 travel rules, the Commission promulgated
separate regulations at 11 CFR 9004.7(b)(5)(i), (v), and (b)(8), and
9034.7(b)(5)(i), (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 treats the underpayment for travel as an in-kind contribution,
11 CFR 9004.7 and 9034.7 address the extent to which payments for
campaign-related travel constitute ``qualified campaign expenses.'' The
2003 travel rules revised the rates and recordkeeping requirements for
presidential and vice-presidential candidates accepting public funds to
conform them to the new rates in 11 CFR 100.93.

II. Revisions to 2 U.S.C. 439a--Use of Campaign Funds

HLOGA amended the Act to prohibit House candidates, their
authorized committees, and their leadership PACs \2\ from making any
expenditure \3\ for non-commercial travel on aircraft, with an
exception for travel on government-operated aircraft and aircraft owned
or leased by a candidate or an immediate family member of the
candidate. See 2 U.S.C. 439a(c)(2) and (3). HLOGA also specified new
reimbursement rates that presidential, vice-presidential, and Senate
candidates must pay for non-commercial campaign travel on aircraft. See
2 U.S.C. 439a(c)(1). The reimbursement rates for these types of travel
differ from those contained in the Commission's 2003 travel rules,
which addressed non-commercial travel on aircraft by all political
committees, including political party committees, separate segregated
funds, nonconnected political committees, and other political
committees. HLOGA did not, however, affect campaign travel on
commercial flights, which all candidates must still reimburse at the
``usual and normal charge.'' See 11 CFR 100.52(a) and (d), and
100.93(a)(2).
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\2\ The NPRM proposed a definition of ``leadership PAC'' to
implement section 204(a) of HLOGA, 2 U.S.C. 434(i)(8)(B). NPRM at
59954-55, 59964. The Commission subsequently adopted a definition of
``leadership PAC'' at 11 CFR 100.5(e)(6) as part of a separate
rulemaking governing the reporting of contributions bundled by
lobbyists, registrants and the PACs of lobbyists and registrants.
See Reporting Contributions Bundled by Lobbyists, Registrants and
the PACs of Lobbyists and Registrants, 74 FR 7285, 7286 (Feb. 17,
2009). This definition became effective on March 19, 2009.
Accordingly, the definition of ``leadership PAC'' is not addressed
in these final rules.
\3\ An ``expenditure'' includes any payment ``made by any person
for the purpose of influencing any election for Federal office.'' 2
U.S.C. 431(9)(A)(i).
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III. Revisions to 11 CFR 100.93--Travel by Aircraft or Other Means of
Transportation

The Commission is amending 11 CFR 100.93 to implement HLOGA's
provisions requiring candidates and certain political committees to pay
for non-commercial air travel at a specified rate to avoid the receipt
of an excessive or a prohibited in-kind contribution.\4\
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\4\ The intent of section 601 of HLOGA was frequently
characterized by its sponsors as an effort to end subsidization of
air travel provided by corporations and others to candidates, and
thereby reduce the potential for corruption or the appearance
thereof. See, e.g., 153 Cong. Rec. S263 (daily ed. Jan. 1, 2007)
(statement of Sen. Obama) (``It would be one thing if Congressmen
and Senators paid the full rate for these flights, but we don't''),
153 Cong. Rec. S267 (daily ed. Jan. 9, 2007) (statement of Sen.
Feingold) (``Any legislation on corporate jets must include campaign
trips as well as official travel because one thing is for certain--
the lobbyist for the company that provides the jet is likely to be
on the flight, whether it is taking you to see a factory back home
or a fundraiser for your campaign.''), 153 Cong. Rec. S320 (daily
ed. Jan. 10, 2007) (statement of Sen. Lieberman) (``When a Member of
Congress or a candidate for Federal office uses a private plane, the
ethics rules, as well as the Federal Election Commission rules,
require payment to the owner of the plane equivalent to a first-
class commercial ticket * * * The Reid amendment would eliminate
that loophole * * *''), and 153 Cong. Rec. S10692 (daily ed. Aug. 2,
2007) (statement of then Sen. Obama).
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The Commission is otherwise retaining 11 CFR 100.93 intact, except
as identified below. The explanations for the purpose and provisions of
11 CFR 100.93 were set out in the 2003 E&J and continue to apply unless
addressed in the following discussion. In the NPRM, the Commission
sought comments on the overall structure of 11 CFR 100.93. None of the
commenters called for a change in the structure or general function of
the section.

A. 100.93(a)--Scope and Definitions

The Commission is changing the scope and definitions in 11 CFR
100.93(a) as noted below. First, for internal consistency, the
Commission is replacing all references to ``airplanes'' in 11 CFR
100.93 with the term ``aircraft.'' HLOGA uses the term ``aircraft,''
which the Federal Aviation Authority (FAA) defines as ``a device that
is used or intended to be used for flight in the air.''

[[Page 63953]]

14 CFR 1.1. The term ``aircraft'' includes helicopters, which the
Commission's 2003 travel rules had grouped with buses and conveyances
other than airplanes. See 11 CFR 100.93(a)(3)(ii) (2004) (definition of
``service provider'' focuses on ``person who makes the airplane or
other conveyance available''), 11 CFR 100.93(c) (2004) (``travel by
airplane''), and 11 CFR 100.93(d) (``other means of transportation''
includes ``any other means of transportation'' and specifically lists
helicopters). The primary impact of these changes is that travel aboard
a helicopter now would be reimbursed at the rate required in 11 CFR
100.93(c) (aircraft), rather than (d) (other conveyances), which was
the case under the 2003 travel rules, as discussed below.
1. 11 CFR 100.93(a)(1) and (2)--Scope of 11 CFR 100.93
The rule at 11 CFR 100.93 is intended to establish reimbursement
rates for ``non-commercial travel'' in the absence of a usual and
normal charge. 11 CFR 100.93(a)(1). When a usual and normal charge is
readily ascertainable, such as a specified fee by route, mileage, or
date and time of use, the travel is generally considered ``commercial
travel'' and the usual and normal charge must be paid to avoid
receiving an in-kind contribution. See 11 CFR 100.93(a)(2) and
100.52(d)(1).
The Commission's 2003 travel rules distinguished between commercial
and non-commercial air travel based on the certification system of the
Federal Aviation Administration (FAA). Specifically, the Commission's
2003 travel rules applied to all airplanes not licensed by the FAA to
operate for compensation or hire under 14 CFR parts 121, 129, or 135.
See 11 CFR 100.93(a)(1)(i) (2004).
HLOGA accomplishes the same result without explicit reference to
specific FAA regulatory provisions. In order to simplify and align the
Commission's regulations with HLOGA, the Commission is replacing its
reliance on specific FAA regulatory provisions with the new terms
``commercial travel'' and ``non-commercial travel,'' which are defined
in new 11 CFR 100.93(a)(3)(iv) and (v) and explained below. None of the
commenters opposed this change.
2. 11 CFR 100.93(a)(3)(i)--Definition of ``Campaign Traveler''
The Commission also is making a change to the definition of
``campaign traveler'' in 11 CFR 100.93(a)(3) to clarify that the term
encompasses not only persons traveling on behalf of a candidate, but
also candidates who travel on behalf of their own campaigns. In the
NPRM, the Commission proposed amending the definition of ``campaign
traveler'' to include ``[a]ny candidate for Federal office,'' as well
as ``any 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 candidate.'' See
proposed 11 CFR 100.93(a)(3)(i). The Commission received one comment in
support of the proposed change, and no comments in opposition.
The Commission is adopting the proposed change along with one
further revision to clarify that a candidate is a ``campaign traveler''
only when ``traveling in connection with an election for Federal
office.'' The term ``campaign traveler'' in revised 11 CFR 100.93 does
not include Members of Congress when they engage in official travel, or
candidates when they engage in personal travel or any other travel that
is not in connection with an election for Federal office. Security
personnel, including government-provided security personnel (such as
the Secret Service), shall be treated as campaign travelers when
traveling in connection with a Federal election on behalf of a
candidate or a political committee. However, government-provided
security personnel are not included when determining a ``comparable
aircraft of sufficient size to accommodate all campaign travelers''
under 11 CFR 100.93(e)(1)(i), as discussed below.
3. 11 CFR 100.93(a)(3)(iv) and (v)--Definitions of ``Commercial
Travel'' and ``Non-Commercial Travel''
The definition of ``commercial travel'' in new 11 CFR
100.93(a)(3)(iv)(A) corresponds to the new statutory language of HLOGA:
Travel aboard an aircraft ``operated by an air carrier or commercial
operator certificated by the Federal Aviation Administration and 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 and the flight is required to be conducted under air carrier
safety rules.'' \5\ 2 U.S.C. 439a(c)(1) and (2). The definition of
``non-commercial travel'' in 11 CFR 100.93(a)(3)(v) encompasses all air
travel not included in the definition of ``commercial travel.'' These
definitions are unchanged from the NPRM.
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\5\ Both ``air carrier'' and ``commercial operator'' are terms
of art defined in FAA regulations. See 14 CFR 1.1. An ``air
carrier'' is ``a person who undertakes directly by lease or other
arrangement to engage in air transportation.'' A ``commercial
operator'' is ``a person who, for compensation or hire, engages in
the carriage by aircraft in air commerce of persons or property
other than as an air carrier or foreign air carrier or under part
375.'' The Federal Aviation Administration's (``FAA'') air carrier
safety rules are contained in 14 CFR parts 121 (large airplanes) and
135 (smaller airplanes and other aircraft).
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One comment addressed these definitions, supporting both. The
Commission did not receive any comments identifying a difference
between the universe of aircraft encompassed by the new term ``non-
commercial travel'' and the aircraft included in former 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'').
The Commission is defining ``commercial travel'' with respect to
conveyances other than aircraft as ``other means of transportation
operated for commercial passenger service.'' 11 CFR
100.93(a)(3)(iv)(B). This definition is unchanged from the proposed
rule. The Commission did not receive any comments on this proposed
definition.
The Commission also did not receive any comments on whether the
definitions of ``commercial travel'' and ``non-commercial travel''
should specifically address the treatment of aircraft operated under
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. The Commission
has decided not to address this issue in the final rule's definitions
because the Commission expects that the structure of the final rule
will eliminate any potential for confusion arising from complex
ownership arrangements. The final rule focuses on the operator of the
aircraft at the time of a given flight and whether that particular
flight is subject to the applicable FAA safety standards, rather than
the owners, service providers, or prior uses of the aircraft as in
former 11 CFR 100.93. Multiple ownership arrangements for aircraft
owned or leased by a candidate or a candidate's immediate family member
through a multiple-ownership arrangement are addressed in 11 CFR
100.93(g), discussed below.
4. 11 CFR 100.93(a)(3)(vi)--Definition of ``Comparable Aircraft''
HLOGA Section 601(a) requires reimbursement of fair market value
for flights described within that section based on the charter rate for
a ``comparable plane of comparable size''

[[Page 63954]]

to the one actually flown. 2 U.S.C. 439a(c)(1)(B). The Commission
interprets the term ``comparable plane of comparable size'' to mean an
aircraft with similar physical dimensions to the aircraft actually
flown and that is able to carry a similar number of passengers. The
Commission recognizes, however, that there is no ``comparable plane''
for a helicopter and is, instead, construing the statute to require a
comparison of similar types of aircraft (i.e., compare a helicopter to
a helicopter). Accordingly, the Commission has defined the term
``comparable aircraft'' in new 11 CFR 100.93(a)(3)(vi) as ``an aircraft
of similar make and model as the aircraft that actually makes the trip,
with similar amenities as that aircraft.'' See new 11 CFR
100.93(a)(3)(vi).
This interpretation is consistent with the Commission's
interpretation of a similar term, ``comparable commercial airplane,''
in its 2003 travel rules, as explained in the 2003 E&J. See 2003 E&J,
68 FR at 69588-89. The definition is also consistent with advisory
opinions issued prior to the 2003 travel rules. For example, in
Advisory Opinion 1984-48 (Hunt), when applying the then-operative term
of a ``comparable commercial conveyance'' to an airplane, 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. Therefore, if a candidate used a twin engine
prop jet, a single engine prop aircraft would not be a comparable
aircraft. The new term ``comparable aircraft'' is intended to require
consideration of these distinctions as well as other differences, such
as whether a plane is chartered with or without a crew, or with or
without fuel.

B. 11 CFR 100.93(b)--Reimbursement of Service Provider Required To
Avoid the Receipt of a Contribution

Paragraphs (b)(1) and (b)(2) of section 100.93 require a campaign
traveler, or the political committee on whose behalf the travel
occurred, to reimburse the provider of the aircraft or other conveyance
at the applicable rate specified in 11 CFR 100.93(c), (d), (e), or (g)
to avoid receipt of an excessive or prohibited in-kind contribution.
As explained further below, travel on non-commercial aircraft by
candidates for election for the office of Representative in, or
Delegate or Resident Commissioner to, the Congress (``House
candidates''), or a person traveling on behalf of any such candidate or
any authorized committee or leadership PAC of such candidate, is
generally prohibited (see 11 CFR 100.93(c)(2)) and cannot be accepted
as an in-kind contribution or be reimbursed from campaign funds (see 11
CFR 113.5).
The Commission is also renumbering former paragraph (b)(1)(iii) as
paragraph (b)(3) and revising it to permit members of the news media
and government-provided security personnel traveling with a candidate
to reimburse the political committee or to pay the service provider
directly for their pro rata share of the travel. Ultimately it is the
candidate committee's exclusive responsibility to ensure that the
service provider is reimbursed for the value of the transportation
provided to all persons traveling with the candidate; however, allowing
members of the news media to reimburse the political committee or to
pay the service provider directly is consistent with former 11 CFR
100.93 and takes into account the variety of billing practices that
have been used by members of the media to pay for their travel. See
2003 E&J, 68 FR at 69586; see also 11 CFR 9004.6 and 9034.6.\6\
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\6\ To the extent that any portion of 11 CFR 9004.6 or 9034.6 is
inconsistent with 11 CFR 100.93, section 100.93 governs.
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Like members of the news media, a Federal or State government
provider of security personnel traveling with a candidate, such as the
Secret Service and national security staff, also may reimburse the
political committee paying for the security personnel's portion of the
travel expenses. See, e.g., Advisory Opinion 1992-38 (Clinton/Gore)
(loan proposal premised on the obligation of the Secret Service to
provide reimbursement); see also 11 CFR 9004.6 and 9034.6. Under the
revised rule, the government security provider therefore may pay the
service provider directly or reimburse the political committee paying
for the travel. In either case, members of the news media or the
government provider of security must not pay more than their pro rata
share of the travel costs, as determined in accordance with 11 CFR
100.93(c), (d), (e), or (g).
There is no indication that Congress was concerned about news media
or government-provided security personnel paying for their own travel
when traveling with Federal candidates or officeholders. Unlike when a
corporation or political committee provides free or reduced travel
services to a candidate, the reimbursement by news media or government-
provided security personnel for their own travel does not implicate the
goals of the Act in deterring corruption or the appearance of
corruption. Moreover, a candidate may have little or no control over
whether to be accompanied by government-provided security personnel.
Finally, although several commenters urged the Commission to prohibit
political committees from paying any portion of the cost of a Federal
candidate's flight, none of the commenters indicated that payments by
the news media or government entities would pose the same dangers of
corruption or the appearance of corruption, or that the news media and
government security providers should be prohibited from paying for
their own travel, particularly when paying the same rate as others on
the aircraft. Although the rule proposed in the NPRM would have
prohibited any form of payment by the news media, the Commission sees
no compelling reason to deviate from its longstanding policy of
permitting the news media and government-provided security personnel to
pay for their pro rata share of the fair market value of the travel.

C. 11 CFR 100.93(c)(1)--Non-Commercial Air Travel by or on Behalf of
Candidates for President, Vice-President, and U.S. Senate

HLOGA requires candidates for President, Vice President, and the
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.'' 2 U.S.C. 439a(c)(1)(B)
(emphasis added). Accordingly, new 11 CFR 100.93(c)(1) requires that
the entire charter rate for a comparable aircraft of comparable size be
divided among the candidates aboard the flight, or their
representatives, as proposed in the NPRM.
All of the commenters who addressed this topic supported the
requirement that presidential, vice-presidential, and Senate candidates
pay the entire charter cost, rather than allowing other political
committees or non-campaign travelers to pay for their own portion of
the flight.
The final rule differs from the proposed rule only in that under
the final rule the cost of the flight is split among candidates based
on the number of campaign travelers flying on behalf of each candidate,
rather than split evenly among the candidates as proposed in the NPRM.
72 FR at 59956. The new rule therefore provides a more accurate
reflection of the proportion of the benefit derived from the flight by
each candidate, while still requiring

[[Page 63955]]

presidential, vice-presidential, and Senate candidates to pay the
entire charter cost. For example, if Senate Candidate A is traveling
with two campaign staffers, and Senate Candidate B is also traveling on
the aircraft, and each candidate is traveling on behalf of his or her
own campaign, then Candidate A would pay three-fourths of the charter
fare and Candidate B would pay one-fourth.
This result is also consistent with the comment submitted by two of
the sponsors of HLOGA, Senators Feingold and Obama, who suggested that
the cost of the flight be split among candidates in proportion to the
benefit derived by each campaign. The Senators stated that this
approach would be consistent with the payment for air travel required
under the Senate Ethics Rules. See Standing Rules of the Senate, Rule
XXXV, Paragraph 1(c)(1)(C)(i).
Under new 11 CFR 100.93(c)(1), the ``pro rata share'' is calculated
based on the number of candidates represented on a flight, regardless
of whether the individual candidate is present on the flight. This
provision is consistent with HLOGA, which limits expenditures for non-
commercial air travel by presidential, vice-presidential, and Senate
candidates, and their authorized committees. A candidate is represented
on a flight if a person is traveling on behalf of that candidate or the
candidate's authorized committee. See 11 CFR 100.93(c)(1). Thus, for
example, if Senate Candidate A travels with the campaign manager of
Senate Candidate B, but Candidate B does not travel, then the two
Senate candidates must nonetheless each pay half of the charter rate.
Candidate B's committee receives the same benefit from the travel by
its staff as if Candidate B had taken the flight. This result is the
same as proposed in the NPRM, which was supported by all of the
commenters addressing this aspect of the proposed rule.
Under new 11 CFR 100.93(c)(1), when a presidential, vice-
presidential, or Senate candidate, or a representative of the
candidate, is traveling on behalf of another political committee (such
as a political party committee or Senate leadership PAC), rather than
on behalf of the candidate's own authorized committee, the
reimbursement for that travel is the responsibility of the political
committee on whose behalf the travel occurs. If the political committee
is other than an authorized committee or House candidate's leadership
PAC, then the appropriate reimbursement rate for that political
committee is set forth in new 11 CFR 100.93(c)(3), discussed below. In
such cases, the presidential, vice-presidential, or Senate candidate,
or candidate's representative, is treated the same as any other person
traveling on behalf of the political committee.\7\
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\7\ One commenter asked the Commission to address a hypothetical
scenario in which the chairman of a political party committee and a
Senate candidate both travel aboard a non-commercial aircraft to a
political party committee fundraiser. In response to this request,
the Commission notes that because the candidate would be traveling
on behalf of the political party committee, that individual's status
as a candidate would be irrelevant. Therefore, the political party
committee would pay for the candidate's portion of the travel. See
11 CFR 100.93(c)(3).
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The reimbursement rates for travel aboard government-operated
aircraft or aircraft owned by a candidate or a member of a candidate's
immediate family, are treated separately in paragraphs (e) and (g) of
11 CFR 100.93, as discussed below. See subsections H and I, below.
2. Alternatives Not Adopted
In the NPRM, the Commission sought comment on three alternative
methodologies for calculating the appropriate reimbursement rate for
travel by presidential, vice-presidential, or Senate candidates and
their representatives.
First, the NPRM included several variations of a ``per committee''
alternative that would have required reimbursement based on the number
of represented committees of any type, rather than the number of
represented candidates or candidate committees. Second, a ``per
passenger'' alternative would have required candidates to reimburse the
service provider for only that portion of the normal and usual charter
rate that reflected the number of candidate representatives as a
percentage of all passengers on the aircraft. Third, a ``comparable
aircraft'' alternative would have followed the approach in the
Commission's 2003 travel rules by permitting reimbursement at the
normal and usual charter rate or rental charge for an aircraft of
sufficient size to carry all of the campaign travelers on the flight.
See 11 CFR 100.93(c)(3) (2004) (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'').
The Commission has decided not to adopt any of the alternative
methodologies proposed in the NPRM. The Commission believes that the
methodology in the final rule described above is most consistent with
the language of HLOGA. Moreover, the Commission believes that the
proposed alternative methodologies might have lent themselves to
manipulation, with the result that corporations, political committees,
and others could provide a benefit to the candidate or political
committee on whose behalf the travel was undertaken by allowing the
candidate or political committee to pay less than its pro rata share of
the charter rate. Most of the commenters agreed that the proposed
alternative methodologies were inconsistent with the intent of HLOGA.
One commenter proposed an alternative based on the ``comparable
aircraft'' alternative proposed in the NPRM. This alternative would
have followed the approach in the Commission's 2003 travel rules by
permitting reimbursement at the normal and usual charter rate or rental
charge for an aircraft of sufficient size to carry all of the campaign
travelers on the flight. See 11 CFR 100.93(c)(3) (2004). The Commission
is not adopting this commenter's version of the ``comparable aircraft''
alternative because it would allow for the potential reduction of costs
by using smaller aircraft for comparison purposes rather than the
aircraft actually flown. Moreover, the additional separate calculation
of the fair market value of the flight actually taken would add
unnecessary complexity to compliance with, and enforcement of, the
rules.
3. Travel on Behalf of Leadership PACs of Senate, Presidential, and
Vice-Presidential Candidates
HLOGA prohibits non-commercial air travel on behalf of leadership
PACs of House candidates, but it does not prohibit such travel on
behalf of leadership PACs of Senate, presidential, or vice-presidential
candidates. Nor does HLOGA specify the rate at which the Senate,
presidential, or vice-presidential candidates' leadership PACs must
reimburse a service provider to avoid a contribution, as it does for
those candidates and their authorized committees. For the reasons set
forth below in section III.E.1, the Commission is applying the
reimbursement rates in 11 CFR 100.93(c)(3)(i)-(iii) to travel on behalf
of the leadership PAC of any Senate, presidential, or vice-presidential
candidate to make the new rules consistent with the Commission's prior
travel regulations. These rates were set forth in the Commission's 2003
travel rules: first-class, coach, or charter rates, depending on
whether the origin and destination cities are served by regularly
scheduled commercial airline service.

[[Page 63956]]

D. 11 CFR 100.93(c)(2)--Non-Commercial Air Travel by or on Behalf of
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, 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-
operated 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.
In the NPRM, the Commission proposed a general rule that would
prohibit non-commercial air travel by House candidates and sought
comment on whether House candidates should nonetheless be permitted to
travel on non-commercial aircraft on behalf of their own campaigns, if
the cost of the travel is provided by a permissible source, by treating
the travel as a permissible in-kind contribution. One group of
commenters addressed this question and urged the Commission to prohibit
non-commercial air travel by House candidates as proposed in the NPRM
and not allow such travel if it was provided by a permissible source as
a permissible in-kind contribution.
The Commission agrees with the commenters, and is adopting the rule
as proposed in the NPRM. See 11 CFR 100.93(c)(2). Outside of the
exceptions for travel on government-operated and candidate-owned
aircraft, there is no discussion in the legislative history of this
provision to indicate that Congress contemplated allowing non-
commercial air travel by House candidates. Instead, statements by
sponsors of the new law referred to a ``ban'' on House travel. See,
e.g., 153 Cong. Rec. S10713 (daily ed. Aug. 2, 2007) (statement of
HLOGA sponsors offered by Sen. Feinstein). In addition, the statute
itself does not include any reimbursement rate for non-commercial
travel by House candidates, whereas Congress did specify a rate for
Senate and presidential candidates.
New 11 CFR 100.93(c)(2) prohibits House candidates, and individuals
traveling on behalf of House candidates, their authorized committees or
leadership PACs, from engaging in non-commercial campaign travel on
aircraft. This prohibition cannot be avoided by payments to the service
provider, even by payments from the personal funds of a House
candidate.\8\
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\8\ Although the general rule in 11 CFR 100.93(b)(2) states that
no contribution results where a campaign traveler pays the service
provider the required rate in accordance with 11 CFR 100.93(c),
there is no rate applicable to House candidates in 11 CFR 100.93(c).
Thus, 11 CFR 100.93(b)(2) does not permit House candidates to travel
on non-commercial aircraft by paying the service provider.
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The prohibition does not apply, however, when the travel would be
considered an expenditure by someone other than the House candidate,
House candidate's authorized committee, or House candidate's leadership
PAC. For example, travel by a House candidate on behalf of a Senate or
presidential candidate, or a political party committee, would be
permissible so long as the political party committee or candidate on
whose behalf the travel occurs reimburses the service provider at the
applicable rate under 11 CFR 100.93(c)(1) or (3).

E. 11 CFR 100.93(c)(3)--Non-Commercial Air Travel by Campaign Travelers
Not Traveling on Behalf of Federal Candidates and Their Representatives

In the NPRM, the Commission proposed two alternatives with respect
to non-commercial air travel by individuals traveling on behalf of
political party committees and other political committees that are not
candidates' authorized committees or House candidates' leadership PACs.
The first alternative would have applied the charter rate applicable to
travel on behalf of Senate or presidential candidates unless one or
more candidates or candidate representatives are also aboard the flight
(in which case the candidates would already be paying the entire
applicable charter rate to the service provider). The second
alternative would have retained the rates in the 2003 travel rules,
which permitted reimbursement at the first-class or coach rate by
campaign travelers other than candidates. For the reasons explained
below, the Commission is adopting the second alternative and requiring
campaign travelers who are not traveling on behalf of candidates to
continue to pay the rates in the 2003 travel rules. See 11 CFR
100.93(c)(3).
1. Campaign Travelers Who Are Not Traveling With or on Behalf of
Candidates
The Commission is not changing its current reimbursement rate
structure for campaign travelers who are traveling on behalf of
political party committees, SSFs, nonconnected committees, and certain
leadership PACs. Thus, 11 CFR 100.93(c)(3)(i)-(iii) preserves the three
reimbursement rates for non-commercial air travel in previous 11 CFR
100.93(c)(1)-(3)--first class, coach, or charter--with the applicable
rate depending on whether the travel is between two cities with
regularly scheduled first-class or coach commercial airline service.
In 2003, the Commission extended its previous travel regulations to
cover all travel in connection with a Federal election, stating, ``[b]y
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.'' 2003 E&J, 68 FR at 69585. The Commission promulgated rules
that applied to candidates and those traveling on behalf of candidates
or their authorized committees, and extended those rules to other
campaign travelers.
HLOGA, on the other hand, explicitly addresses the reimbursement
rate only for campaign travelers who are candidates or are traveling on
behalf of authorized committees. Section 439a(c)(1) applies by its own
terms to a candidate (other than a House candidate) or any authorized
committee of such a candidate. Section 439a(c)(2) applies by its own
terms to House candidates, their authorized committees, and their
leadership PACs.
Several commenters argued that HLOGA's silence with respect to
coverage of all political actors amounts to implicit approval of the
Commission's 2003 travel rule, which permitted all campaign travelers,
candidate and non-candidate alike, to pay for travel at either the
first class, coach, or charter rate, depending on whether the origin
and destination cities are served by regularly scheduled commercial
airline service. One commenter argued that to expand the charter rate
requirement beyond HLOGA's express language would be tantamount to
assuming a legislative role in an area in which Members of Congress
operate on a day-in-day-out basis. Two additional commenters noted that
HLOGA's silence with respect to these other types of political
committees constitutes a form of ``legislative acquiescence'' to the
Commission's 2003 regulations. No commenters embraced the proposal
included in the NPRM to extend the charter rate requirement to all
Federal political committees.
The Commission disagrees with the argument that by enacting HLOGA,
Congress set forth the required reimbursement rate for all campaign

[[Page 63957]]

travelers. HLOGA's supporters spoke most explicitly to the provision's
coverage in terms of its impact on Member and lawmaker travel.\9\ Thus,
together with HLOGA's Section 601, Congress clearly determined the
``normal and usual charge'' for non-commercial travel on aircraft by
and on behalf of candidates and their authorized committees without
disturbing the Commission's approach that is currently in 11 CFR
100.93(c)(3). This provision requires non-candidate campaign travelers
to pay the first class, coach, or charter rate, depending on whether
the origin and destination cities are served by regularly scheduled
commercial airline service. Each political committee on whose behalf a
campaign traveler is flying is responsible for paying the required
reimbursement rate. For example, if three representatives of PAC P
accompany a representative of Party Committee C, and the travel is to
or from a city not served by regularly scheduled commercial airline
service, the cost of the charter would be divided by the number of
campaign travelers (four). PAC P would pay three-fourths of the charter
cost while Party Committee C would pay one-fourth of the charter cost.
---------------------------------------------------------------------------

\9\ See, e.g., 152 Cong. Rec. S2435 (daily ed. Mar. 28, 2006)
(statement of Sen. Obama) (speaking in terms of a company providing
a jet ``to a lawmaker''), 152 Cong. Rec. S2500 (daily ed. Mar. 29,
2006) (statement of Sen. McCain) (discussing public perception that
``flights unduly influence Members of Congress and serve as a way
for lobbyists to curry favor with legislators''), 153 Cong. Rec.

S186 (daily ed. Jan. 4, 2007) (statement of Sen. McCain) (focusing
on ``the ability of a Member to travel on a corporate jet''), 153
Cong. Rec. S548-49 (daily ed. Jan. 16, 2007) (statement of Sen.
Reid) (describing his own solicitation and acceptance of private
travel), 153 Cong. Rec. S1185 (daily ed. Jan. 25, 2007) (statement
of Sen. Levin) (``The new rules will ensure that Members traveling
on corporate jets would have to reimburse at the charter rate * *
*''), 153 Cong. Rec. S8400 (daily ed. June 26, 2007) (statement of
Sen. Reid) (``It requires Senators to pay fair market value prices
for charter flights, which put an end to the abuses of corporate
travel.''), 153 Cong. Rec. S10694 (daily ed. Aug. 2, 2007)
(statement of Sen. Feingold) (speaking to ``a requirement that
Senators pay the full charter rate on corporate jets for personal,
official or campaign purposes * * *''), 153 Cong. Rec. S10703 (daily
ed. Aug. 2, 2007) (statement of Sen. Levin) (``The new rules will
ensure that Members traveling on corporate jets would have to pay
for them at the charter rate * * *''), and 153 Cong. Rec. S10715
(daily ed. Aug. 2, 2007) (statement of Sen. Reid) (the law
``requires Senators to pay fair market prices for charter flights,
putting an end to abuses of corporate travel.'').
---------------------------------------------------------------------------

2. Candidates Traveling With Non-Candidate Campaign Travelers
When a Federal candidate (other than a House candidate), or person
traveling on behalf of a candidate or candidate's authorized committee,
shares a non-commercial flight with one or more campaign travelers who
are not traveling on behalf of a candidate or candidate's committee,
the candidate must pay the cost of the entire charter fare for a
comparable aircraft of comparable size pursuant to 11 CFR 100.93(c)(1).
Except as permitted under 11 CFR 100.93(b)(3), campaign travelers who
are not traveling on behalf of a candidate, candidate's authorized
committee, or House candidate leadership PAC, and other passengers
cannot relieve the candidate's payment obligation.
For example, Senate Candidate A, Senate 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 is
determined by dividing the normal and usual charter rate for the plane
by three because there are three individuals who are candidates or
traveling on behalf of candidates (Candidate A, Candidate B, and
Candidate B's campaign manager). New 11 CFR 100.93(c)(1) bases the rate
calculation on the proportional share of travelers attributable to each
Senate candidate, so Candidate A pays one-third of the charter rate and
Candidate B pays two-thirds.\10\
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\10\ One commenter posed a hypothetical situation in which the
chairman of a political party committee, who is also a Senate
candidate, takes non-commercial air travel to serve as the keynote
speaker at a fundraiser to benefit a joint fundraising committee
between the political party committee and his own campaign for the
U.S. Senate. Because the joint fundraising committee is treated as
an authorized committee of the Senate candidate, see 11 CFR
102.17(a)(1)(i), the Senate candidate's principal campaign committee
(another authorized committee) must pay for the travel.
---------------------------------------------------------------------------

The PAC need not reimburse the service provider for PAC
representative P's travel because the service provider will be
compensated at the full charter rate for the flight by the two
candidates. Moreover, no in-kind contribution from the service provider
to the PAC will result because the payments by Candidate A and
Candidate B will fully compensate the service provider for the value of
PAC representative P's travel. The authorized committee of each
candidate must report its payment to the service provider as an
expenditure and need not report any portion of its payments to the
service provider as an in-kind contribution to the PAC.\11\
---------------------------------------------------------------------------

\11\ One commenter posed a hypothetical scenario in which the
chairman of a political party committee and a Senate candidate both
travel aboard a non-commercial aircraft. Assuming that the Senate
candidate is traveling on behalf of his own campaign, his authorized
committee would be responsible for the full cost of the charter
fare. See 11 CFR 100.93(c)(3). The commenter suggested that such
travel be recorded as an in-kind transfer from the Senate candidate
to the political party committee, but the new rules do not require
the candidate or political party committee to record any such in-
kind transfer.
---------------------------------------------------------------------------

F. Additional Revisions to 11 CFR 100.93(c)

1. Presidential and Vice-Presidential Candidates
The Commission continues to treat travel by publicly financed
presidential and vice-presidential candidates the same as travel by
presidential and vice-presidential candidates who do not receive public
funds. Therefore, 11 CFR 100.93(c)(1) applies to presidential and vice-
presidential candidates who do not receive public funds, while 11 CFR
9004.7 and 9034.7, discussed below, continue to incorporate the 11 CFR
100.93 rates by reference for candidates who accept 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, including an in-
kind contribution of non-commercial air travel. The Commission did not
receive any comments on this aspect of the rules.
2. Commercially Reasonable Time Frame
HLOGA requires candidates for President, Vice-President, and the
U.S. Senate to 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). The Commission
implements this requirement by specifying in 11 CFR 100.93(c) that the
``commercially reasonable time frame'' for payment is within seven days
after the first day of the flight. This time frame applies to all
payments required under new 11 CFR 100.93(c).
The seven-day time frame was established in the 2003 travel rules,
and nothing in the record of this rulemaking suggests that a longer or
shorter period is warranted. Nor has the Commission's experience in
administering and enforcing the 2003 travel rule indicated any reason
to adjust the time frame. The Commission received only one comment
addressing this time frame, and that comment supported the seven-day
time frame.

G. 11 CFR 100.93(d)--Other Means of Transportation

For other means of transportation, such as limousines and all other
automobiles, trains, and buses, a

[[Page 63958]]

political committee must pay the service provider an amount equal to
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. 11 CFR 100.93(d). This provision is
substantially identical to the 2003 travel rule and to the rule
proposed in the NPRM. NPRM, 72 FR at 59965. HLOGA does not address
travel on any conveyances other than aircraft, and the Commission's
experience administering the 2003 rule for travel on conveyances other
than aircraft does not indicate that a change to the rule regarding
travel on conveyances other than aircraft is warranted.
The Commission did not receive any comments on proposed 11 CFR
100.93(d).

H. 11 CFR 100.93(e)--Government Conveyances

The Commission's 2003 travel rules at 11 CFR 100.93(e) required
reimbursement for travel aboard airplanes provided by the Federal
government, or by any State or local government entity, at the same
rate as travel aboard other airplanes. Non-commercial campaign travel
aboard government conveyances other than aircraft was reimbursed under
former 11 CFR 100.93(e)(2) at the same rate as travel aboard the
equivalent means of transportation not provided by a government entity.
HLOGA generally prohibits House candidates from using campaign funds
for non-commercial travel, except for travel aboard an aircraft
``operated by an entity of the Federal government or the government of
any State.'' \12\ 2 U.S.C. 439a(c)(2)(B).
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\12\ HLOGA similarly amends the Standing Rules of the Senate
regarding travel to require Senators to pay the pro rata share of
the fair market value of a flight for non-commercial travel, except
for travel aboard ``an aircraft owned or leased by a governmental
entity.'' See Public Law 110-81, sec. 544(c)(1), amending Paragraph
1(c)(1) of rule XXXV of the Standing Rules of the Senate. In order
to avoid a regulatory gap with respect to travel on aircraft
operated by local governments, new 11 CFR 100.93(e) applies to
campaign travel on aircraft operated by local government entities in
addition to Federal and State government, as proposed in the NPRM.
The Commission did not receive any comments on this provision.
---------------------------------------------------------------------------

As noted above, under the Commission's 2003 rules the required
reimbursement rate for travel on government airplanes was the first-
class, coach, or charter rate, depending on whether the travel occurred
between cities served by regularly scheduled commercial airline
service, and whether that service was available at a first-class or
coach rate. For travel to or from a military airbase or other location
not accessible to the general public, reimbursement was required based
on the lowest unrestricted and non-discounted first-class airfare to or
from the city with regularly scheduled first-class commercial airline
service that is geographically closest to the military airbase or other
location actually used. Section 601 of HLOGA thus provides an exception
to the prohibition on House candidates and their authorized committees
and leadership PACs from making expenditures for travel on non-
commercial aircraft, but does not specify any particular rate of
reimbursement for travel aboard government-operated aircraft.
The NPRM proposed a set of two different rates in 11 CFR
100.93(e)(1) that candidates could choose from for reimbursement for
government-operated aircraft. The first rate, proposed in 11 CFR
100.93(e)(1)(i), requires reimbursement of the appropriate government
entity at 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 ``per candidate campaign traveler'' reimbursement rate).
The second rate, proposed in 11 CFR 100.93(e)(1)(ii), requires
reimbursement at the private traveler reimbursement rate per campaign
traveler, as specified by the government entity operating the aircraft
(the ``private traveler'' reimbursement rate). The NPRM did not propose
any substantive changes to 11 CFR 100.93(e)(2), which governs travel on
government conveyances other than aircraft.
The Commission did not receive any comments on proposed 11 CFR
100.93(e).
Except as discussed below, new 11 CFR 100.93(e) is the same as
proposed in the NPRM. Accordingly, a candidate campaign traveler, or
the authorized committee or House leadership PAC on whose behalf the
travel is conducted, must reimburse a government entity for travel on
any government-operated aircraft at either of the two rates set out in
new 11 CFR 100.93(e)(1)(i) and (ii).
1. 11 CFR 100.93(e)(1)(i)--``Per Candidate Campaign Traveler''
Reimbursement Rate
Under the revised rules, the applicable charter rate is for a
comparable aircraft of sufficient size to accommodate all of the
campaign travelers. Unlike 11 CFR 100.93(c)(1), which requires the
charter rate to be based on a comparable aircraft of comparable size,
the comparable aircraft used for the basis of the charter rate in 11
CFR 100.93(e)(1)(i) need not be the same size as the government-
operated aircraft actually used. Similarly, the comparable government
aircraft need not be capable of accommodating the non-campaign
passengers and equipment aboard the government-operated aircraft.
Members of the media traveling with a candidate, and security
personnel not provided by a government entity, must be included in the
number of campaign travelers for the purposes of identifying a
comparable aircraft of sufficient size to accommodate all of the
campaign travelers. A comparable aircraft, however, need not be able to
accommodate government-required personnel (e.g., Secret Service or
National Security Agency officers provided to protect the candidate) or
government-required equipment (e.g., bulky security or communications
devices provided for the national security or communications needs of
the candidate).\13\ For example, a significant portion of Air Force One
may be occupied by personnel and equipment mandated by national
security requirements and other needs associated with the office of the
President, not the campaign.
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\13\ The term ``government-required personnel'' encompasses
individuals assigned to accompany a campaign traveler for reasons of
national security or other official purposes as required by law or
government policy. It does not encompass a Federal officeholder's
staff or other individuals who are ``required'' by the officeholder
solely by virtue of their staff positions.
---------------------------------------------------------------------------

Government-required security personnel are not included in the
number of campaign travelers for the purposes of identifying a
comparable aircraft. The purpose for this exclusion is to avoid
penalizing candidates who are required to travel with government
security personnel by obliging them to pay the charter rate for a
larger aircraft than would otherwise be needed to transport such
candidates and their campaign travelers. All security personnel,
including government-provided security personnel, are included,
however, in determining the number of campaign travelers for purposes
of calculating each candidate's pro rata share. This is consistent with
the parallel provision concerning travel on private aircraft (11 CFR
100.93(c)(1)), and with the provision concerning travel on government-
operated aircraft that is reimbursed at the ``private traveler''
reimbursement rate (11 CFR 100.93(e)(1)(ii); see discussion below). A
candidate's authorized committee must thus reimburse the service
provider for the same number of campaign travelers regardless of
whether the travel occurs

[[Page 63959]]

on a private or government-operated aircraft, and regardless of whether
the candidate is reimbursing at the ``per candidate campaign traveler''
reimbursement rate or at the ``private traveler'' reimbursement rate.
The general rule regarding reimbursement to a candidate committee by
members of the news media and government-provided security personnel
(11 CFR 100.93(b)(3)) applies to both private and government-operated
aircraft.
For example, if eleven passengers (Presidential Candidate A and two
campaign staffers traveling on behalf of Presidential Candidate A,
Senate Candidate B traveling on behalf of her own campaign, PAC
representative P, four members of the news media traveling with
Presidential Candidate A, and two members of the Secret Service
required to travel with Candidate A), travel on a twelve-seat
government aircraft, reimbursement would be required at the normal and
usual charter rate for a comparable aircraft of sufficient size to
accommodate nine passengers. The two Secret Service agents need not be
counted when determining the size of a comparable aircraft because they
would be ``government-required personnel.'' Given that no portion of
the normal and usual charter fare or rental charge may be attributed to
any non-candidate campaign traveler or any other passenger, the charter
fare would be divided by ten (the number of candidates, their campaign
staffers, members of the media, and sec

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