[Federal Register Volume 68, Number 2 (Friday, January 3, 2003)]
[Rules and Regulations]
[Pages 404-421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-91]



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Part II





Federal Election Commission





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11 CFR Part 100, et al.



Bipartisan Campaign Reform Act of 2002 Reporting; Coordinated and 
Independent Expenditures; Final Rules

  Federal Register / Vol. 68, No. 2 / Friday, January 3, 2003 / Rules 
and Regulations  

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FEDERAL ELECTION COMMISSION

11 CFR Parts 100, 104, 105, 108 and 109

[Notice 2002--26]


Bipartisan Campaign Reform Act of 2002 Reporting

AGENCY: Federal Election Commission.

ACTION: Final rules and transmittal of regulations to Congress.

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SUMMARY: The Federal Election Commission is promulgating new and 
revised rules regarding the reporting of electioneering communications 
and independent expenditures, monthly reporting by national political 
party committees and quarterly reporting by the principal campaign 
committees of candidates for the House of Representatives and Senate, 
as well as reporting related to party committee building funds. These 
rules implement several provisions of the Bipartisan Campaign Reform 
Act of 2002 (``BCRA'') that amend the Federal Election Campaign Act of 
1971, as amended (``FECA'' or ``the Act''). Further information is 
provided in the SUPPLEMENTARY INFORMATION that follows.

EFFECTIVE DATE: February 3, 2003.

FOR FURTHER INFORMATION CONTACT: Mr. J. Duane Pugh Jr., Acting Special 
Assistant General Counsel, Ms. Mai T. Dinh, Acting Assistant General 
Counsel, or Ms. Cheryl A. F. Hemsley, Attorney, 999 E Street, NW., 
Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION:  The Bipartisan Campaign Reform Act of 2002 
(``BCRA''), Pub. L. 107-155, 116 Stat. 81 (2002), contains extensive 
and detailed amendments to the Federal Election Campaign Act of 1971, 
as amended, 2 U.S.C. 431 et seq. This is one in a series of rulemakings 
the Commission is undertaking to implement the provisions of BCRA. The 
deadline for the promulgation of these rules is 270 days after the date 
of enactment, which is December 22, 2002.
    Under the Administrative Procedures 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 30 calendar days before they take effect. The 
final rules on BCRA Reporting were transmitted to Congress on December 
18, 2002.

Introduction

    These final rules address: (1) Reporting of electioneering 
communications; (2) reporting of independent expenditures; (3) 
quarterly reporting by the principal campaign committees of candidates 
for the House of Representatives and the Senate; (4) monthly reporting 
by political party committees; and (5) the reporting of funds for 
political party committee office buildings. See 2 U.S.C. 434(a), (e), 
(f) and (g); BCRA sec. 103, 201, 212, 501 and 503, 116 Stat. at 87-90, 
93-94, and 114-115.
    The Commission issued a Notice of Proposed Rulemaking (``NPRM'') 
addressing many of BCRA's reporting requirements. See 67 FR 64,555 
(Oct. 21, 2002) (``Reporting NPRM''). The Commission also previously 
sought comments on two of these topics in Notices of Proposed 
Rulemakings on Electioneering Communications, 67 FR 51,131 (Aug. 7, 
2002), and Coordinated and Independent Expenditures, 67 FR 60,042 
(Sept. 24, 2002). The Commission based the rules for another topic, the 
reporting of funds for the purchase or construction of party office 
buildings, on recently published final rules. See Prohibited and 
Excessive Contributions: Non-Federal Funds or Soft Money; Final Rules, 
67 FR 49,123 (July 29, 2002).
    The Commission received four comments on this rulemaking. In 
addition, comments responding to the reporting issues in the previous 
NPRMs regarding electioneering communications and independent 
expenditures were considered by the Commission in developing these 
final reporting rules and are discussed in more detail below. The 
Commission received fifteen comments on electioneering communications 
reporting and two comments on coordinated and independent expenditures 
reporting. In addition, the Commission received testimony during the 
public hearings on electioneering communications on August 28 and 29, 
2002, and on coordinated and independent expenditures on October 23 and 
24, 2002.
    The Commission also recently issued a Statement of Policy, 
explaining that during the transition period following BCRA's effective 
date, the Commission intends to refrain from pursuing reporting 
entities for violations of the reporting requirements if they comply 
with Interim Reporting Procedures, which are specified in the Statement 
of Policy. FEC Policy Statement: Interim Reporting Procedures, 67 FR 
71,075 (Nov. 29, 2002). All comments received, hearing transcripts, 
NPRMs, Final Rules, and the Statement of Policy are on the Commission's 
Web site at http://www.fec.gov. The development of new reporting forms 
and instructions is underway, and the new materials will be posted on 
the Commission's Web site as they are completed. The Commission intends 
to have the new forms and instructions completed for reports due March 
20, 2003, covering February 2003.
    BCRA requires the Commission to promulgate standards for reporting 
computer software and also imposes certain other requirements on the 
Commission and on various persons who file reports with the Commission, 
which will take effect when that computer software becomes available. 2 
U.S.C. 434(a)(12). Although these Congressional mandates are related to 
reporting, which is the subject of these final rules, the Commission 
does not propose to address computer software standards in these final 
rules. The computer software standards need to be developed in 
conjunction with revisions to the Commission's reporting forms. 
Therefore, the Commission proposes to address computer software 
standards as soon as possible and will solicit public comments on the 
software standards at that time.

Explanation and Justification

11 CFR 100.19 File, Filed, or Filing (2 U.S.C. 434(a))

    The Commission's regulations at 11 CFR 100.19 define file, filed, 
and filing. The Commission proposed revisions in the NPRM to section 
100.19 to redefine when 24-hour reports of independent expenditures 
would be considered filed and when the new 48-hour reports of 
independent expenditures and 24-hour reports of electioneering 
communications would be considered filed. The Commission received no 
comments on these proposed rules. The final rules are substantially 
similar to the proposed rules in the NPRM, with the changes noted 
below. The Commission notes that the paragraphs in 11 CFR 100.19 should 
be read together, and the entire section should be reviewed for 
applicable requirements.
    Paragraph (a) of section 100.19 is unaffected by this rulemaking, 
except for a new heading. It retains the pre-BCRA general rule that a 
document is considered timely filed if it is delivered to the 
appropriate filing office (either the Commission or the Secretary of 
the Senate) by the close of business on the prescribed filing date. 
Paragraph (b) of section 100.19 retains the pre-BCRA

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rule that a document is also considered timely filed if it is sent by 
registered or certified mail and postmarked by 11:59 p.m. Eastern 
Standard/Daylight Time on the prescribed filing date--except for pre-
election reports. Pre-election reports must be filed no later than the 
12th day before the relevant election or posted by registered or 
certified mail no later than the 15th day before the relevant election. 
See, e.g., 2 U.S.C. 434(a)(2)(A)(i). The references to midnight in 
paragraph (b) are being changed to 11:59 PM Eastern Standard/Daylight 
Time, whichever is applicable, consistent with paragraphs (c), (d), and 
(f) of this section. The revisions to paragraph (b) of section 100.19 
clarify that paragraph (b) does not apply to reports addressed by 
paragraph (c) through new paragraph (f). The proposed new subtitle for 
paragraph (b) of ``general rule'' is not included in the final rules 
because paragraphs (a) and (b) of section 100.19 could both be 
considered part of the general rule.
    Those exceptions are as follows: Paragraph (c) for electronic 
filing--``filed'' means received and validated by the Commission by 
11:59 p.m. Eastern Standard/Daylight Time on the filing date; paragraph 
(d) for 24-hour and 48-hour reports of independent expenditures--
``filed'' means received by the Commission by 11:59 p.m. Eastern 
Standard/Daylight Time on the day following (24-hour reports) or the 
second day following (48-hour reports) the date on which the spending 
threshold is reached in accordance with 11 CFR 104.4(f); paragraph (e) 
for 48-hour notices of last-minute contributions--``filed'' means 
received by the Commission or the Secretary of the Senate within 48 
hours of the receipt of a ``last-minute'' contribution of $1,000 or 
more, which can be accomplished by using a facsimile transmission or 
the Commission's website; paragraph (f) for 24-hour statements of 
electioneering communications--``filed'' means received by the 
Commission by 11:59 p.m. Eastern Standard/Daylight Time of the day 
following the disclosure date. See 11 CFR 104.20.
    Paragraphs (c) and (e) of section 100.19 remain substantially 
unchanged, except for new headings.
    Revised paragraph (d) of section 100.19 requires that both the new 
48-hour reports of independent expenditures and the 24-hour reports of 
independent expenditures must be received by the Commission by the 
filing deadline. 2 U.S.C. 434(g)(4). Because the reasons behind the 
filing requirements for 24-hour reports apply equally to the 
essentially similar 48-hour reports, the final rules treat 48-hour 
reports the same as 24-hour reports with regard to permissible means of 
filing. The 24-hour and 48-hour reporting provisions allow reporting 
entities to submit their reports using facsimile machines or electronic 
mail, as long as they are not required under 11 CFR 104.18 to file 
electronically. Paragraph (d)(3) has also been revised since the NPRM 
to state that the Commission's website may be used to file 24-hour and 
48-hour reports of independent expenditures. Use of the Commission's 
website, facsimile machines or electronic mail for such purposes or for 
electioneering communication statements under section 100.19(f), 
discussed below, does not constitute electronic filing under 11 CFR 
104.18, so such use will not constitute mandatory or voluntary 
electronic filing under 11 CFR 104.18(a) or (b). Sending 24-hour 
reports by mail is not a viable option because it is unlikely these 
reports will be received by the Commission within 24 hours of the 
independent expenditures. See Independent Expenditure Reporting; Final 
Rules, 67 FR 12,834, at 12,835 (Mar. 20, 2002).
    New paragraph (f) of section 100.19 addresses electioneering 
communications, which must be reported within 24 hours of the 
``disclosure date.'' See 2 U.S.C. 434(f)(1) and 11 CFR 104.20 below. 
The Commission is adding new paragraph (f) to 11 CFR 100.19 to require 
these 24-hour statements be received by the Commission no later than 
11:59 p.m. Eastern Standard/Daylight Time on the day following the 
disclosure date, rather than filed by that time. To assist reporting 
entities with meeting this deadline, the final rule specifically allows 
filing by facsimile machine or electronic mail in addition to any other 
delivery method that accomplishes Commission receipt before the 
conclusion of the day following the disclosure date. For the same 
reasons that are discussed with regard to paragraph (d) of 11 CFR 
100.19, new paragraph (f) follows the timing and filing methods of 24-
hour and 48-hour reports for independent expenditures.

11 CFR 104.3(g) Funds for Party Office Buildings

    Before BCRA, the Act and Commission regulations provided an 
exception to the definition of contribution for donations to a national 
or State party committee that were specifically designated to defray 
any cost incurred for the construction or purchase of its office 
facility. Pre-BCRA 2 U.S.C 431(8)(B)(viii); pre-BCRA 11 CFR 
100.7(b)(12); 11 CFR 100.84. This exception is reflected in previous 11 
CFR 104.3(g), which provided that funds or anything of value that were 
given to defray the costs of a party office facility and received by a 
political party committee must be reported as memo entries on Schedule 
A.
    BCRA repealed the building fund exception to the definition of 
contribution for national party committees. BCRA, sec. 103(b)(1)(A), 
116 Stat. at 87. Subsequent technical amendments at 2 U.S.C. 453(b) 
permit State and local political party committees to purchase or 
construct State and local party office buildings with non-Federal 
funds, subject to State law. BCRA, sec. 103(b)(2), 116 Stat. at 87-88. 
To implement these provisions of BCRA, the Commission promulgated new 
regulations at 11 CFR 300.12(b)(3) and (d), which eliminate this former 
exception for national party committees, and at 11 CFR 300.35, which 
provides that the source and reporting of donations used for the costs 
incurred by a State or local party committee for the purchase or 
construction of its office building are subject to State law if donated 
to a non-Federal account of the party committee. Prohibited and 
Excessive Contributions: Non-Federal Funds or Soft Money; Final Rule, 
67 FR 49,064, at 49,123 and 49,127 (July 29, 2002). However, if funds 
or things of value are contributed to or used by the Federal account of 
a State or local party committee for the purchase or construction of 
its office building, then these amounts or items are contributions 
under the Act. Consequently, new paragraph (g)(1) of 11 CFR 104.3 makes 
it clear that any funds or things of value received by a Federal 
account and used for the purchase or construction of an office 
building, regardless of contributor-specified purposes, are 
contributions and are not treated differently from other funds or 
things of value received by a Federal account. New paragraph (g)(2) 
states that gifts, subscriptions, loans, advances, deposits of money, 
or anything of value donated to a non-Federal account of a State or 
local party committee that are used for the purchase or construction of 
its office building are not contributions subject to the reporting 
requirements of FECA, but are subject to applicable State law reporting 
requirements. New paragraph (g)(3) specifies that national party 
committees' receipts used to defray the costs of the construction or 
purchase of its office building are contributions subject to paragraph 
(g)(1). Thus, the memo entries required under previous

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11 CFR 104.3(g) are no longer appropriate. New section 104.3(g) should 
be read in conjunction with 11 CFR 300.12(b)(3) and (d), 300.13, and 
300.35. The Commission received no comments on this section.

11 CFR 104.4 Independent Expenditures by Political Committees (2 U.S.C. 
434(b), (d) and (g))

1. Introduction
    Prior to BCRA, the Commission had established reporting 
requirements for political committees making independent expenditures 
in accordance with 2 U.S.C. 434(b) and (g). See pre-BCRA 11 CFR 104.4. 
In the NPRM, the Commission proposed to revise the rules for political 
committees reporting independent expenditures made less than 20 days 
but more than 24 hours before an election and proposed to add new rules 
regarding the 48-hour reports of independent expenditures during the 
rest of the calendar year to implement BCRA's new reporting 
requirements for such independent expenditures. See 2 U.S.C. 434g.
    The Commission received one comment on this section in the 
Reporting NPRM and one, from the same commenter, when these rules were 
published for comment in the Coordinated and Independent Expenditures 
NPRM, 67 FR 60,042 (Sept. 25, 2002). The commenter agreed with the 
proposal that 24-hour and 48-hour reports of independent expenditures 
need not be filed until the communications are publicly distributed or 
otherwise publicly disseminated. With the exception of certain 
clarifying changes suggested by the commenter, the final rules mirror 
those proposed in the NPRM.
2. 11 CFR 104.4(a) Regularly Scheduled Reporting
    Paragraph (a) of section 104.4 is unaffected, other than the 
addition of a new heading, minor clarifications, a grammatical 
correction, and an updated cross-reference.
3. 11 CFR 104.4(b) Reports of Independent Expenditures Made at Any Time 
Up To and Including the 20th Day Before an Election
    New paragraph (b) addresses reports of independent expenditures 
made by a political committee at any point in the campaign up to and 
including the 20th day before an election.

A. 11 CFR 104.4(b)(1) Independent Expenditures Aggregating Less Than 
$10,000

    New paragraph (b)(1) addresses independent expenditures aggregating 
less than $10,000 with respect to a given election during the calendar 
year, up to and including the 20th day before an election. This 
calendar-year aggregation is based on 2 U.S.C. 434(b)(4), which 
requires calendar-year aggregation for reports of independent 
expenditures by political committees. Under the new rule, political 
committees must report the independent expenditures on Schedule E of 
FEC Form 3X, filed no later than the regular reporting date under 11 
CFR 104.5. The Commission interprets 2 U.S.C. 434(g), added to the Act 
by BCRA, to require aggregation toward the various thresholds for 
independent expenditure reporting to be calculated on a per-election 
basis within the calendar year. For example, if a political committee 
makes $5,000 in independent expenditures with respect to a Senate 
candidate, and $5,000 in independent expenditures with respect to a 
House of Representatives candidate, and both of these ads are publicly 
distributed before the 20th day before the primary election, that 
political committee is not required to file 48-hour reports, but must 
disclose the independent expenditures on its regularly scheduled 
reports. If the political committee makes $5,000 in independent 
expenditures with respect to a clearly identified candidate in the 
primary, and an additional $5,000 in independent expenditures with 
respect to the same candidate in the general election but outside the 
20-day window, no 48-hour reports are required; but again the political 
committee must disclose the independent expenditures on its regularly 
scheduled reports. If, however, the political committee made $6,000 in 
independent expenditures supporting a Senate candidate in the primary 
election, and $4,000 in independent expenditures opposing that Senate 
candidate's opponent in the primary, and these communications are 
published in a newspaper more than twenty days before the primary, the 
political committee must file a 48-hour report. The Commission received 
no comments on the interpretation implemented by this paragraph.

B. 11 CFR 104.4(b)(2) Independent Expenditures Aggregating $10,000 or 
More

    New paragraph (b)(2) addresses independent expenditures aggregating 
$10,000 or more during the calendar year up to and including the 20th 
day before an election. Political committees must file these reports on 
Schedule E of FEC Form 3X. These reports must be received by the 
Commission no later than 11:59 p.m. Eastern Standard/Daylight Time on 
the second day following the date on which a communication that 
constitutes an independent expenditure is publicly distributed or 
otherwise publicly disseminated. Further, political committees must 
file an additional 48-hour report each time subsequent independent 
expenditures reach or exceed the $10,000 threshold with respect to the 
same election to which the first report related.
4. 11 CFR 104.4(c) Reports of Independent Expenditures Made Less Than 
20 Days, But More Than 24 Hours Before the Day of an Election
    Revisions to renumbered paragraph (c) (which was pre-BCRA 11 CFR 
104.4(b)) state that 24-hour reports must be received by the Commission 
no later than 11:59 p.m. Eastern Standard/Daylight Time on the day 
following the date on which the $1,000 threshold is reached during the 
final 20 days before the election. Further, revisions to this paragraph 
also indicate that additional 24-hour reports must be filed each time 
during the 24-hour reporting period in which subsequent independent 
expenditures reach or exceed the $1,000 threshold with respect to the 
same election to which the previous report related.
5. 11 CFR 104.4(d) Verification
    New paragraph (d) contains the report verification information 
previously found in pre-BCRA paragraph (b) of section 104.4. There are 
non-substantive grammatical changes to conform this paragraph to the 
rest of section 104.4.
6. 11 CFR 104.4(e) Where to File
    New paragraph (e) largely restates pre-BCRA paragraph (c) of 
section 104.4. However, this paragraph has been reorganized since it 
was published in the Reporting NPRM. In the Reporting NPRM, paragraph 
(e)(2) would have addressed independent expenditures related to both 
Senate and House of Representatives candidates, and it would have 
omitted reference to the Secretary of Senate. In the final rule, 
paragraph (e)(2) addresses independent expenditures related to Senate 
candidates, and it retains the former requirement in 11 CFR 104.4(c) 
that regularly scheduled reports of independent expenditures related to 
Senate candidates must be filed with the Secretary of Senate. 11 CFR 
104.4(e)(2)(i). However, with respect to

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24-hour and 48-hour reports of independent expenditures relating to 
Senate candidates under BCRA, the Commission and not the Secretary of 
the Senate is the place of filing. 11 CFR 104.4(e)(2)(ii); see 2 U.S.C. 
434(g)(3); see also the discussion of 11 CFR 105.2, below.
    Proposed paragraph (e)(3) in the Reporting NPRM is being renumbered 
paragraph (e)(4), and it provides that if a State has obtained a waiver 
under 11 CFR 108.1(b), then reports of independent expenditures are not 
required to be filed with that State's Secretary of State.
7. 11 CFR 104.4(f) Aggregating Independent Expenditures for Reporting 
Purposes
    Paragraph (f) of 11 CFR 104.4 addresses aggregation of independent 
expenditures for reporting purposes. The provisions of pre-BCRA 11 CFR 
109.1(f) are being moved to this section and revised to explain when 
and how political committees and other persons making independent 
expenditures must aggregate independent expenditures for purposes of 
determining whether 48-hour and 24-hour reports must be filed. Note 
that this aggregation rule applies to independent expenditures by 
political committees, as well as other persons; new 11 CFR 109.10(c) 
and (d) cross-reference this paragraph. Paragraph (f) establishes that 
every date on which a communication that constitutes an independent 
expenditure is ``publicly distributed'' or otherwise publicly 
disseminated serves as the date used to determine whether the total 
amount of independent expenditures has, in the aggregate, reached or 
exceeded the threshold reporting amounts ($1,000 for 24-hour reports or 
$10,000 for 48-hour reports). The term ``publicly distributed'' has the 
same meaning as provided in new 11 CFR 100.29(b)(3), which the 
Commission promulgated as part of the electioneering communications 
rulemaking. Electioneering Communications Final Rules, 67 FR 65,190, 
65,192, 65,211 (Oct. 23, 2002). The term ``publicly disseminated'' 
refers to communications that are made public via other media, e.g., 
newspaper, magazines, handbills. Thus, paragraph (f) sets the same date 
as the starting date from which a person would have one or two days, 
where applicable, to file a 24-hour or 48-hour report of independent 
expenditures.
    Congress changed the reporting requirements for independent 
expenditures by adding the phrase ``or contracts to make'' in 2 U.S.C. 
434(g)(1) and (2). By doing so, BCRA ties 24-hour and 48-hour reporting 
of independent expenditures to the time when a person ``makes or 
contracts to make independent expenditures'' aggregating at or above 
the $1,000 and $10,000 thresholds, respectively. Therefore, under new 
11 CFR 104.4(f), each person must include in the calculation of the 
aggregate amount of independent expenditures, both disbursements for 
independent expenditures and all contracts obligating funds for 
disbursements for independent expenditures. Under this new rule and the 
timing requirements described above, when a communication that 
constitutes an independent expenditure is publicly distributed or 
publicly disseminated, the person who paid for, or who contracted to 
pay for, the communication is able to determine whether the 
communication satisfies the ``express advocacy'' requirement of the 
definition of an independent expenditure (see 11 CFR 100.16) and 
therefore must determine whether the disbursement for that 
communication constitutes an independent expenditure. A person reaching 
or exceeding the applicable reporting threshold is required to submit a 
report by 11:59 p.m. Eastern Standard/Daylight Time on the day after, 
for 24-hour reporting, or two days after, for 48-hour reporting, the 
date of the public distribution or public dissemination of that 
communication. Please note that under these rules, independent 
expenditures must be reported by political committees after a 
disbursement is made, or a debt reportable under 11 CFR 104.11(b) is 
incurred, for an independent expenditure, but no later than 11:59 p.m. 
on the day following the date on which the independent expenditure is 
first publicly distributed or otherwise publicly disseminated.
    In some situations, a political committee does not make a payment 
or incur a reportable debt before the communication that constitutes 
the independent expenditure is publicly distributed or otherwise 
publicly disseminated. If the communication is both publicly 
distributed or otherwise publicly disseminated and paid for in the same 
reporting period, then the political committee must report the 
independent expenditure on Schedule E for that reporting period. If the 
communication is aired in one reporting period (e.g., during August for 
a monthly filer) and payment is made in a later reporting period (e.g., 
during September), then the political committee must report the 
independent expenditure as a memo entry on Schedule E on its August 
report if the $10,000 threshold has been exceeded and on Schedule D if 
it is a reportable debt under 11 CFR 104.11. The September report 
should show a payment on Schedule E and the same payment on Schedule D, 
if applicable.
    In other situations, however, a political committee may pay the 
production and distribution costs associated with an independent 
expenditure in one reporting period, but not publicly distribute or 
otherwise publicly disseminate it until a later reporting period. In 
this case, the political committee must report the payment as a 
disbursement on Schedule B for operating expenditures. When, in a 
subsequent reporting period, the communication is publicly distributed 
or otherwise publicly disseminated, the political committee must file a 
Schedule E for the independent expenditure referencing the earlier 
Schedule B transaction. The political committee must also report the 
disbursement for the independent expenditure as a negative entry on 
Schedule B so the total disbursements are not inflated. Alternatively, 
if the political committee wishes to disclose the independent 
expenditure before the communication is publicly disseminated, it could 
report the independent expenditure on Schedule E for the reporting 
period in which the disbursement is made, with no further reporting 
obligation except for the 48-hour report if the total amount of 
disbursements for independent expenditures equals or exceeds $10,000 on 
the day the communication is publicly distributed or otherwise publicly 
disseminated.
    Obligations incurred, but not yet paid that are reportable debts, 
must be reported on Schedule D. For independent expenditures once the 
$10,000 threshold is exceeded, political committees must also report 
memo entries on Schedule E. When, in a subsequent reporting period, the 
communication is publicly distributed or otherwise publicly 
disseminated, the political committee must file a Schedule E 
referencing the debt on Schedule D. The political committee must 
continue to report the debt on Schedule D and any payment on the debt 
on Schedules D and E, until the debt is extinguished.
    The Commission received one comment supporting this proposal to 
base reporting of independent expenditures on the date of public 
distribution or public dissemination, rather than on the date a 
contract is executed. The policy reasons for adopting this reading of 
BCRA are the same as those set forth in the Explanation and 
Justification below for the reporting of electioneering communications.

[[Page 408]]

8. Additional Requirements in the Internal Revenue Code
    The Commission received one comment from the Internal Revenue 
Service (``IRS'') on the coordinated and independent expenditure NPRM, 
which noted generally that even though some entities that are political 
organizations within the meaning of section 527 of the Internal Revenue 
Code may not be obliged to report contributions or expenditures to the 
Commission, these entities may still be required to report to the IRS. 
The IRS offered the following explanation, which the Commission is 
including here to provide additional guidance regarding the potential 
overlap between the Internal Revenue Code and the Commission's 
regulations. Section 527(j) of the Internal Revenue Code requires the 
reporting on IRS Form 8872 of certain contributions received and 
expenditures made by a tax-exempt political organization unless (i) the 
organization reports under the FECA as a political committee; (ii) the 
organization is a State or local committee of a political party or 
political committee of a State or local candidate; (iii) the 
organization is a qualified State or local political organization 
within the meaning of section 527(e)(5) of the Internal Revenue Code; 
(iv) the organization reasonably anticipates that it will not have 
gross receipts of $25,000 or more for any taxable year; (v) the 
organization is otherwise exempt from Federal income taxation under 
section 501(a) of the Internal Revenue Code because it is described in 
section 501(c) of the Internal Revenue Code; or (vi) the expenditure 
made is treated as an independent expenditure under the FECA. In 
certain situations this could require a tax-exempt political 
organization making coordinated expenditures to report such 
expenditures on IRS Form 8872 even though that organization would not 
be required to report such items to the Commission. Moreover, a tax-
exempt political organization that is required to report one or more 
independent expenditures to the Commission might also have to report 
certain contributions received and other expenditures to the IRS.

11 CFR 104.5 Filing Dates (2 U.S.C. 434(a)(2))

    Section 104.5 sets forth filing dates for all reporting entities, 
including political committees. The NPRM proposed revisions to the 
rules for 24-hour reports of independent expenditures and proposed 
adding provisions for 24-hour reports of electioneering communications 
and 48-hour reports of independent expenditures. The final rules in 
section 104.5 track the proposed rules, with the changes described 
below.
    Section 104.5(a) is being revised to set forth the new reporting 
schedule for the principal campaign committees of House of 
Representatives and Senate candidates. Prior to BCRA, the principal 
campaign committees of these candidates were allowed to file semi-
annually in non-election years. After November 5, 2002, excluding 
reports for 2002 runoff elections, principal campaign committees of 
House of Representatives and Senate candidates must file quarterly 
reports in non-election years, as well as in the election year. 2 
U.S.C. 434(a)(2)(B). Revised paragraphs (a) and (a)(1) of section 104.5 
now state that these committees must file quarterly reports. Like other 
quarterly reports, these must be complete as of March 31, June 30, 
September 30, and December 31, and must be filed by April 15, July 15, 
October 15, and January 31 of the following year, respectively. 
Paragraph (a)(2) of 11 CFR 104.5 sets forth the requirements for pre-
election and post-general election reports in the election year and is 
identical to paragraphs (a)(1)(i) and (ii) of pre-BCRA 11 CFR 104.5. 
The rules regarding semi-annual reporting from pre-BCRA section 
104.5(a) are being deleted. Please note that these new reporting dates 
do not affect the principal campaign committees or other authorized 
committees of Presidential candidates.
    Revisions to paragraph (c) state that while unauthorized political 
committees may choose to file quarterly or monthly, a national 
committee of a political party must report monthly under new 11 CFR 
104.5(c)(4), which is discussed below. Consequently, national party 
committees are no longer permitted to change their filing frequency. 
Paragraphs (c) and (c)(4) have been revised since the NPRM to 
consolidate the references to the national party committees, including 
the national congressional campaign committees.
    Paragraph (c)(4) of 11 CFR 104.5 is a new provision implementing 
the BCRA requirement that all national political party committees must 
report on a monthly basis. 2 U.S.C. 434(a)(4)(B). Previously, national 
party committees were allowed to file quarterly in the election year 
and semi-annually in the non-election years. Under the changes to the 
Act made by BCRA, national political party committees must file 
monthly, and must file pre-general election and post-general election 
reports. BCRA's changes to FECA in this regard may be intended to 
remove any doubt as to whether national political party committees that 
file quarterly must file these pre-election reports if they do not make 
any contributions or expenditures on behalf of candidates in these 
elections during pre-election reporting periods. These rules implement 
BCRA's amendment. No commenters addressed this topic.
    The Commission sought, but received no comments on whether the 
national Congressional campaign committees of the political parties 
should be included in this new monthly filing requirement for national 
political party committees. The final rules require the Congressional 
campaign committees of national parties to file monthly for several 
reasons. First, Congressional campaign committees are treated as 
committees of a national political party elsewhere in the Act and the 
regulations. For example, 11 CFR 110.1 specifically includes the 
Congressional campaign committees as committees that are ``established 
and maintained by a national political party.'' Further, the Supreme 
Court in FEC v. Democratic Senate Campaign Committee, 454 U.S. 27, 39 
(1981), stated that the National Republican Senatorial Committee is 
part of the Republican Party organization. By analogy, the other 
Congressional campaign committees are also a part of their national 
party organizations. Moreover, the Commission notes that BCRA included 
a committee of a national political party in this monthly filing 
requirement, rather than the committee of a national political party. 
The wording seems to foreclose the argument that Congress intended to 
include only the national committees of the political parties in the 
monthly filing requirement.
    Paragraph (g) of 11 CFR 104.5 moves the pre-BCRA contents of 
paragraph (g) to new paragraph (g)(2) with revisions, and adds a new 
paragraph (g)(1), which requires that 48-hour reports of independent 
expenditures must be received by the Commission no later than 11:59 
p.m. Eastern Standard/Daylight Time on the second day following the 
date on which a communication is publicly distributed or otherwise 
publicly disseminated. The Commission received one comment on paragraph 
(g) of section 104.5, which urged the Commission to clarify that the 
filing requirements for subsequent reports of independent expenditures 
(24-hour and 48-hour reports) would be triggered by the public 
dissemination or distribution of the communication (as with the initial 
reports). Note that the term ``publicly distributed'' refers to 
communications distributed by radio or

[[Page 409]]

television (see 11 CFR 100.29(b)(3)) and the term ``publicly 
disseminated'' refers to communications that are made public via other 
media, e.g., newspaper, magazines, handbills. New paragraph (g)(4) 
explains when communications that are mailed are considered to be 
``publicly distributed.''
    New paragraph (j) of section 104.5 addresses the filing dates for 
electioneering communications. Specifically, it provides that the 24-
hour statements must be received by the Commission by 11:59 p.m. 
Eastern Standard/Daylight Time on the day following the disclosure 
date.

11 CFR 104.19 [Reserved]

    Section 104.19 of 11 CFR is added and reserved for future use.

11 CFR 104.20 Reporting Electioneering Communications

1. Introduction
    In the Explanation and Justification for the Electioneering 
Communications Final Rules, the Commission stated it would revise the 
proposed rules on reporting electioneering communications and re-
propose the rules as part of this rulemaking.\1\ 67 FR at 65,209. 
Consequently, the NPRM for this reporting rulemaking included the 
revised proposed rules for the reporting requirements for 
electioneering communications at proposed 11 CFR 104.20. The following 
explanation and justification for 11 CFR 104.20 discusses comments 
resulting from the Reporting NPRM and the Electioneering Communications 
NPRM. Although the Electioneering Communications NPRM would have 
designated the reporting of electioneering communications as section 
104.19, the proposed rules in the Reporting NPRM designated reporting 
of electioneering communications as proposed section 104.20. In the 
following explanation and justification, citations to 104.19 refer to 
the original proposed rules in the Electioneering Communications NPRM, 
and citations to 104.20 refer to the proposed rules in the Reporting 
NPRM and the final rules.
---------------------------------------------------------------------------

    \1\ The original proposed rules were part of the Electioneering 
Communications NPRM. See 67 FR at 51,145.
---------------------------------------------------------------------------

2. 11 CFR 104.20(a) Definitions
    New section 104.20(a) includes the definitions for the relevant 
terms that are used throughout new section 104.20. These terms are: (1) 
Disclosure date; (2) direct costs of producing or airing electioneering 
communications; (3) persons sharing or exercising direction or control; 
(4) identification; and (5) publicly distributed.

A. 11 CFR 104.20(a)(1) Definition of ``Disclosure Date''

    BCRA requires persons who make electioneering communications that 
cost more than $10,000 to file disclosure statements with the 
Commission within 24 hours of the disclosure date. 2 U.S.C. 434(f)(1). 
In the Electioneering Communications NPRM, proposed section 104.19(b) 
would have defined ``disclosure date'' as ``the first date by which a 
person has made one or more disbursements, or has executed one or more 
contracts to make disbursements, for the direct costs of producing or 
airing electioneering communications aggregating in excess of 
$10,000.'' 67 FR at 51,145. The Electioneering Communications NPRM, 
however, also sought comment on whether the disclosure date should be 
the date on which the electioneering communication aired. Thus, under 
this proposal, an organization could make disbursements or enter into a 
contract to make disbursements that exceed $10,000, but would not be 
required to disclose the disbursements or contract until the 
electioneering communication is aired. Although BCRA uses the term 
``airing,'' the Commission has determined that ``publicly distributed'' 
more accurately encompasses how electioneering communications are 
disseminated to the public, including the airing of these 
communications. See below for discussion of the definition of 
``publicly distributed.''
    All of the commenters who addressed this issue disagreed with the 
proposed rule in the Electioneering Communications NPRM and advocated 
adopting a final rule that would define ``disclosure date'' as the date 
of the public distribution of the electioneering communication. They 
argued that there is no electioneering communication, and therefore no 
reporting requirement, until the communication is actually publicly 
distributed.
    Taking into consideration the comments described above, proposed 
section 104.20(a)(1) in the Reporting NPRM would have defined 
``disclosure date'' as the date on which an electioneering 
communication is publicly distributed where there have been 
disbursements, or executed contracts for disbursements, for the direct 
costs of producing or airing an electioneering communication 
aggregating in excess of $10,000. The Commission received one comment 
on the revised proposed definition of ``disclosure date'' at section 
104.20(a)(1), which supported this approach. The final rule in section 
104.20(a)(1) is similar to the proposed rule. This date reflects the 
Commission's concerns that there are legal and practical issues 
associated with compelling disclosure of potential electioneering 
communications before they are finalized and publicly distributed, and 
premature disclosure may require reporting entities to divulge 
confidential strategic and political information about their possible 
future activities.
    Consequently, under new section 104.20(a)(1)(i), ``disclosure 
date'' means the first time in a calendar year that an electioneering 
communication is publicly distributed where the maker of the 
electioneering communications has also surpassed the $10,000 
disbursement threshold. Counting toward the threshold are disbursements 
made at any time for the direct costs of producing or airing either 
that communication or any other previously unreported electioneering 
communication. Thus, even disbursements for the direct costs of 
producing or airing the electioneering communication made in calendar 
years prior to the public distribution of the electioneering 
communication are aggregated toward the $10,000 threshold. Conversely, 
any costs already reported for earlier electioneering communications 
are not aggregated toward the $10,000 threshold. After the first 
disclosure date, subsequent disclosure dates occur in the same calendar 
year in which an electioneering communication is publicly distributed, 
if that person has made additional disbursements for the direct costs 
of producing or airing an electioneering communication that, in the 
aggregate, exceed $10,000. 11 CFR 104.20(a)(1)(ii). The following 
example illustrates how the definition of ``disclosure date'' operates. 
From November of one year to March of the next year, Person X spends 
$25,000 in direct costs to produce and air an electioneering 
communication, and the communication is publicly distributed on March 
15. Thus, March 15 is the initial disclosure date under 11 CFR 
104.20(a)(1)(i). Person X then pays another $5000 to publicly 
distribute the same communication on April 1. April 1 is not a 
disclosure date because the subsequent disbursement does not exceed 
$10,000. On April 15, Person X publicly distributes a different 
electioneering communication for which she spent $7000 in direct costs 
to produce and air. April 15 is a disclosure date under 11 CFR 
104.20(a)(1)(ii) because that is the date on which the communication 
was publicly distributed and the aggregation of the

[[Page 410]]

disbursements for the direct costs after the initial disclosure date 
($5000 plus $7000) exceeds $10,000.

B. 11 CFR 104.20(a)(2) Definition of ``Direct Costs of Producing or 
Airing Electioneering Communications''

    In the Electioneering Communications NPRM, proposed section 
104.19(a) would have required every person who makes a disbursement, or 
executes a contract, for the direct costs of producing or airing 
electioneering communications that aggregate in excess of $10,000 
during a calendar year, to file a statement with the Commission. 
Electioneering Communications NPRM, 67 FR at 51,145-46. Furthermore, 
proposed section 104.19(a)(2) would have included a non-exhaustive list 
of what constitutes direct costs of electioneering communications. Id. 
The Commission sought comment on two issues relating to this proposed 
requirement. The first was whether the list in proposed section 
104.19(a)(2) was adequate and whether the list should be exhaustive. 
The second issue was whether the direct costs of producing an 
electioneering communication and the direct costs of airing it should 
be aggregated separately or together to determine whether such costs 
exceed $10,000. The second issue is discussed in further detail in the 
explanation and justification for new section 104.20(b).
    The commenters on the Electioneering Communications NPRM were split 
on the issue of whether the list of direct costs in proposed section 
104.19(a)(2) should be exhaustive or non-exhaustive. One commenter who 
supported an exhaustive list argued that it is clear what is involved 
in producing a communication, and the proposed rule adequately 
addresses those costs. Another commenter recommended a non-exhaustive 
list so that the Commission could retain flexibility to identify other 
costs associated with producing and airing communications not listed in 
the proposed rules.
    In order to provide clear guidance on this issue, proposed 11 CFR 
104.20(a)(2) in the Reporting NPRM included an exhaustive list of 
direct costs associated with producing or airing an electioneering 
communication. The Commission sought comments on whether the proposed 
definition should include any other direct costs associated with 
producing or airing electioneering communications. In particular, the 
Commission sought comment on what, if any, additional in-house 
production costs should be considered direct costs.
    The final rule in new section 104.20(a)(2) is similar to the 
proposed rule in the Reporting NPRM, and defines ``direct costs of 
producing or airing'' with an exhaustive list. Paragraph (a)(2)(i) has 
been clarified to include ``costs charged by a vendor'' to show that 
the nature of service, not the nature of the vendor providing the 
service, controls whether its cost should be included. (The NPRM 
version listed ``costs charged by a production company,'' which unduly 
focused on the type of company providing the service.) Paragraph 
(a)(2)(ii) has been revised to include the cost of studio time and 
material costs, which are in-house out-of-pocket production costs. The 
Commission understands ``direct cost of producing or airing 
electioneering communications'' as used in 2 U.S.C. 434(f)(4)(A) and 
(B) to include all such out-of-pocket costs and to not distinguish 
between those provided by vendors or those provided by in-house 
resources.
    One commenter addressed the issue of what should be included in an 
exhaustive list. The commenter supported an exhaustive list and agreed 
with the items on the list in proposed section 104.20(a)(2). The 
commenter also suggested that the Commission make clear in the final 
rule that the definition does not ``include planning or preparatory 
costs such as polling and focus groups, or in-house costs such as staff 
compensation and other overhead.''
    Paragraph (a)(2)'s list of vendor production costs, in-house 
production costs, and airtime costs is exhaustive. Only costs that fit 
within these categories are included. Illustrative examples of costs 
charged by a vendor are also included in the regulation, and these 
examples are not exhaustive. Paragraph (a)(2)(ii) makes clear that part 
of the costs addressed by the commenter, which are described as ``in-
house costs such as staff compensation and other overhead,'' are not 
among the enumerated out-of-pocket costs, so they will not be included 
in paragraph (a)(2)(ii). The other of the commenter's examples of 
polling and focus groups are not production costs as they are too 
attenuated from the resulting communication to be considered ``direct 
costs of producing or airing an electioneering communication'' under 2 
U.S.C. 434(f)(4).
    The final rule requires statements of electioneering communications 
to be filed when the direct costs of producing or airing electioneering 
communications exceed $10,000. In both the Reporting NPRM and the 
Electioneering Communications NPRM, the Commission sought comment on 
how to aggregate the direct costs of producing or airing an 
electioneering communication to determine whether the $10,000 threshold 
has been exceeded. The commenters on the Electioneering Communications 
NPRM disagreed on this issue. Some commenters argued that BCRA should 
be read to require that production costs should be aggregated 
separately for the airtime costs. Under this interpretation, if it 
costs a person $7,000 to produce the electioneering communication and 
$7,000 to air it, the threshold is not met because neither the direct 
costs of producing or airing the electioneering communication exceeded 
$10,000. In contrast, other commenters argued that BCRA mandates that 
the direct costs of producing and airing the electioneering 
communication be aggregated. Under this approach, the example above 
would result in the $10,000 threshold being met because the direct 
costs of producing and airing are $14,000.
    The Commission has decided that it is appropriate to require that 
the costs of producing and the costs of airing be added together, 
rather than counted separately, to determine whether the threshold has 
been met. Thus, when the direct costs of producing or airing an 
electioneering communication exceed $10,000 when combined, the person 
who makes the electioneering communication would be required to file a 
statement with the Commission when the electioneering communication is 
publicly distributed. Additionally, the Commission agrees with a 
commenter who noted that, as a practical matter, for most 
electioneering communications, the $10,000 threshold will be exceeded, 
regardless of whether the production costs and the airing costs are 
aggregated separately or together.

C. 11 CFR 104.20(a)(3) Definition of ``Persons Sharing or Exercising 
Direction or Control''

    The Electioneering Communications NPRM included two proposed 
alternatives, identified as Alternative 4-A and Alternative 4-B, to 
implement the BCRA requirement to disclose ``any person sharing or 
exercising direction or control over the activities'' of the person 
making the disbursement for electioneering communications. See 2 U.S.C. 
434(f)(2)(A). Many of the commenters asserted that both alternatives 
were vague and could encompass a large number of people, especially for 
electioneering communications made by membership organizations. Some of 
the commenters were also concerned that disclosing this information may 
reveal sensitive or confidential information and the decision-making 
processes of organizations, especially non-profit organizations, 
thereby placing them at a

[[Page 411]]

competitive disadvantage. For these reasons, these commenters argued 
that the Commission should require limited, if any, disclosure of 
persons who share or exercise direction or control over the person who 
makes disbursements for electioneering communications or the activities 
involved in making electioneering communications.
    In contrast, several commenters, including the Congressional 
sponsors of BCRA, disagreed with both alternatives because in their 
view neither would disclose sufficiently the information required by 
BCRA. See 2 U.S.C. 434(f)(2)(A). They asserted that BCRA requires 
disclosure of not only those who have direction or control over the 
electioneering communications, but also those who have direction or 
control over the organization that makes the electioneering 
communications.
    While the Commission recognizes the concerns of those who objected 
to disclosure of the decision-making process of their organizations, 
BCRA requires persons who make electioneering communications to 
disclose those who share or exercise direction or control over the 
person making the disbursement for electioneering communications. 2 
U.S.C. 434(f)(2)(A). Because neither Alternative 4-A nor Alternative 4-
B in the Electioneering Communications NPRM appeared to encompass the 
disclosure required by BCRA, proposed section 104.20(c)(2) in the 
Reporting NPRM did not incorporate either of the two alternatives. 
Instead, proposed paragraph (c)(2) followed the wording of 2 U.S.C. 
434(f)(2)(A).
    To provide further guidance on proposed section 104.20(c)(2), the 
proposed rules included a definition of ``sharing or exercising 
direction or control.'' Because it appears that the term ``direction or 
control'' in 2 U.S.C. 434(f)(2)(A) refers to the management or 
decision-making process of an organization, including a qualified 
nonprofit corporation (``QNC''), proposed section 104.20(a)(3) would 
have defined ``sharing or exercising direction or control'' to mean 
exercising authority or responsibility for policy formulation, day-to-
day management, obligation of funds, or hiring or firing employees.
    The Commission also sought comment on an alternative definition of 
``sharing or exercising direction or control'' that was not in the 
proposed rule. Reporting NPRM, 67 FR at 64,560. Under the alternative 
definition described in the NPRM, the term would mean the officers, 
directors, partners, or any other individuals who have the authority to 
bind the organization, entity, or person making the disbursement for 
electioneering communication. With this alternative the Commission 
sought a more objective, bright-line definition of ``direction or 
control'' that focused the definition on those persons who have the 
authority to act on behalf of the organization. One commenter addressed 
this issue. The commenter supported the alternative definition arguing 
that proposed section 104.20(a)(3) was overly broad and that the 
alternative definition better captured the requirements of BCRA. The 
commenter also suggested that the alternative definition be further 
narrowed to include only officers, directors, and partners.
    The Commission is adopting this bright-line alternative approach 
described in the NPRM, with the clarifications described below, as new 
section 104.20(a)(3) because it properly encompasses BCRA's clear 
requirement to identify persons who exercise direction or control over 
the person making the electioneering communication. The Commission 
prefers the clarity of the bright-line approach to what may be the 
broader coverage of the NPRM's proposed rule text in order to avoid the 
vagueness involved in describing the functions that the rule intended 
to capture. New section 104.20(a)(3) defines ``persons sharing or 
exercising direction or control'' with a list of organizational 
positions that are readily known and verifiable: officer, director, 
executive director, partner, and in the case of unincorporated 
organizations, owner. In addition to this list, new section 
104.20(a)(3) includes the ``equivalent'' of executive director. This 
term is intended to include the senior staff position in an 
organization, whatever its title, that functions as an executive 
director does. Thus, the Commission believes that the positions named 
or described in new section 104.20(a)(3) provide sufficient scope to 
capture responsible persons without sweeping too broadly.

D. 11 CFR 104.20(a)(4) Definition of ``Identification''

    New section 104.20(a)(4) incorporates the definition of the term 
``identification'' in 11 CFR 100.12. This definition is identical to 
the proposed definition. No commenter discussed this definition.

E. 101 CFR 104.20(a)(5) Definition of ``Publicly Distributed''

    In the Electioneering Communications Final Rules, the Commission 
defines ``publicly distributed'' to mean ``aired, broadcast, cablecast, 
or otherwise disseminated through the facilities of a television 
station, radio station, cable television system, or satellite system.'' 
11 CFR 100.29(b)(6). Therefore, new section 104.20(a)(5) adopts the 
definition of ``publicly distributed'' in 11 CFR 100.29(b)(6). The term 
``publicly distributed'' is used throughout the final rules instead of 
``airing,'' except in the definition of ``direct costs of producing or 
airing.''
3. 11 CFR 104.20(b) Who Must Report and When
    New section 104.20(b) details who must report electioneering 
communications to the Commission and when those statements are due. The 
final rule states that every person who makes a disbursement or 
executes a contract to make a disbursement for electioneering 
communications that exceeds $10,000 in direct costs must file a 
statement with the Commission by the end of the day following the 
disclosure date. The various elements of this final rule are discussed 
in further detail below.
    The definitions of ``electioneering communication'' in 11 CFR 
100.29 and ``disclosure date'' in 11 CFR 104.20(a)(1) must be satisfied 
in order for an electioneering communication reporting obligation to 
arise. Thus, for example, because expenditures are exempted from the 
definition of ``electioneering communication'' by 2 U.S.C 
434(f)(3)(B)(ii) and 11 CFR 100.29(c)(3), political committees that pay 
for communications with funds reportable as expenditures do not report 
these payments under 11 CFR 104.20. Similarly, a ``disclosure date'' 
must have occurred, so the provisions of 11 CFR 104.20(a)(1)(i) or (ii) 
must have been satisfied.
    BCRA requires that statements of electioneering communications be 
filed within 24 hours of the disclosure date, that is the date on which 
an electioneering communication is publicly distributed, assuming the 
$10,000 threshold has been exceeded. 11 CFR 104.20(a)(1). One witness 
at the August 28, 2002 public hearing on electioneering communications 
acknowledged that in some cases it may be difficult to ascertain when 
an electioneering communication is publicly distributed for purposes of 
triggering the 24-hour reporting period. This is because the contract 
may not specify a precise time that the communication will be publicly 
distributed or because in some instances the broadcaster does not air 
the communication during the block of time specified in the contract, 
although the

[[Page 412]]

day of initial broadcast will generally be known. To address the 
concern that a person may not know the exact time an electioneering 
communication is publicly distributed during the day that it is 
scheduled to air, the Commission is interpreting the 24-hour period in 
which to report the electioneering communication as starting at the end 
of the day in which the communication is publicly distributed. 
Therefore, new section 104.20(b) requires reporting of an 
electioneering communication by the end of the following day. The 
Commission did not receive any comments on this rule.
    The last sentence of proposed section 104.20(b) stated that 
``[p]ersons other than political committees must file these 24-hour 
statements on FEC Form 9'' (emphasis added). One commenter correctly 
noted that the highlighted language may be misleading because the 
Commission had stated in the Electioneering Communications Final Rules 
that, by operation of the expenditure and independent expenditure 
exemption from the definition of ``electioneering communications,'' 
political committees do not make disbursements for electioneering 
communications. See 67 FR at 65,197-98. Therefore, the final rule 
includes a sentence that makes clear that political committees report 
communications that are described in 11 CFR 100.29(a) as expenditures 
or independent expenditures and not as an electioneering communication. 
For those persons who are required to report electioneering 
communications, new section 104.20(b) requires all the information 
specified in new section 104.20(c) be reported on FEC Form 9.
4. 11 CFR 104.20(c) Contents of Statements
    New section 104.20(c) lists eight items that must be included in 
the statements of electioneering communications that must be filed with 
the Commission. No commenters addressed the introductory part of 
paragraph (c). The final rule slightly rewords the proposed rule to 
clarify that the information to be reported on FEC Form 9 pertains to 
electioneering communications.

A. 11 CFR 104.20(c)(1) Identification of the Person Making the 
Disbursements

    New section 104.20(c)(1) requires identification of the persons who 
make a disbursement, or execute a contract to make a disbursement, for 
an electioneering communication. Under 11 CFR 100.12, as incorporated 
by new section 104.20(a)(4), ``identification'' means an individual's 
first name, middle name or initial, if available, and last name; 
mailing address; occupation; and the name of his or her employer; and, 
if the person is not an individual, the person's full name and address. 
New section 104.20(c)(1) additionally requires a person that is not an 
individual to list its principal place of business. This rule 
implements the requirements in BCRA at 2 U.S.C. 434(f)(2)(A) and (B). 
The Commission did not receive any comments concerning this paragraph.

B. 11 CFR 104.20(c)(2) Identification of Persons Sharing or Exercising 
Direction or Control

    As mandated by BCRA at 2 U.S.C. 434(f)(2)(A), new section 
104.20(c)(2) requires identification of persons sharing or exercising 
direction or control over persons described in paragraph (c)(1), 
disclosing the same type of information. While one commenter addressed 
the definition of ``sharing or exercising direction or control,'' see 
above, no commenter specifically discussed this rule.

C. 11 CFR 104.20(c)(3) Identification of the Custodian of the Books and 
Accounts

    BCRA at 2 U.S.C. 434(f)(2)(A) requires disclosure of the person who 
is the custodian of the books and accounts from which electioneering 
communication disbursements are made. New section 104.20(c)(3) 
implements this new provision. The information that must be disclosed 
about that person under BCRA and the new rules is the same as the 
information that must be disclosed about the persons described in 
paragraphs (c)(1) and (c)(2), except for paragraph (c)(1)'s requirement 
that a person that is not an individual state its principal place of 
business. The Commission did not receive any comments on this rule.

D. 11 CFR 104.20(c)(4) Disclosure of the Amount of Each Disbursement

    BCRA also requires disclosure of disbursements of more than $200 
during the period covered by the statement, the date the disbursement 
was made, and the identification of the person who receives the 
disbursement. 2 U.S.C. 434(f)(2)(C). The final rule in new section 
104.20(c)(4) follows the wording of the proposed rule without change in 
implementing this BCRA provision. No commenter discussed this provision 
in the proposed rules.

E. 11 CFR 104.20(c)(5) Disclosure of Candidates and Elections

    Under 2 U.S.C. 434(f)(2)(D), the elections to which electioneering 
communications pertain, as well as the names of all clearly identified 
candidates referred to in the electioneering communications, must be 
disclosed. The Electioneering Communications NPRM provided two 
alternatives to proposed 11 CFR 104.19(b)(5), identified as Alternative 
5-A and Alternative 5-B, which would have implemented this statutory 
provision. 67 FR 51,146. Both alternatives would have required 
disclosure of the elections and all clearly identified candidates who 
are referred to in the electioneering communication, but would have 
contained different wording. Commenters preferred the wording of 
Alternative 5-B because it was easier to read and was more consistent 
with 2 U.S.C. 434(f)(2)(D). Because Alternative 5-B arguably was more 
consistent with the definition of ``disclosure date,'' see above, 
leaving no doubt as to which clearly identified candidates appear in an 
electioneering communication, proposed section 104.20(c)(5) in the 
Reporting NPRM incorporated the wording of Alternative 5-B. As such, 
the final rule remains unchanged from the proposed rule. No comments 
were received in response to the Reporting NPRM concerning proposed 
section 104.20(c)(5).

F. 11 CFR 104.20(c)(6) Disclosure Date

    New section 104.20(c)(6) requires that electioneering 
communications statements list the disclosure date, as defined in 
section 104.20(a)(1), of each electioneering communication. While BCRA 
does not specifically require the disclosure date to be reported, this 
information is necessary as it is the triggering mechanism for filing 
the statement. This is similar to requiring the disclosure of the date 
an independent expenditure aggregating $1,000 or more is made during 
the 24-hour reporting period. The Commission did not receive any 
comments on this requirement.

G. 11 CFR 104.20(c)(7) Disclosure of Donors to a Segregated Bank 
Account

    BCRA requires persons who make disbursements for electioneering 
communications exclusively from segregated bank accounts to disclose 
the names and addresses of contributors who contribute an aggregate of 
$1,000 or more to that segregated account. 2 U.S.C. 434(f)(2)(E). In 
the Electioneering Communications NPRM, the Commission sought comment 
on whether amounts given to persons who make disbursements for 
electioneering communications are contributions subject to the 
limitations, prohibitions, and reporting requirements of the Act.

[[Page 413]]

In the new reporting provisions for electioneering communications in 
BCRA, the statute uses the terms ``contributor'' and ``contributed, `` 
but it does not use the term ``contribution.'' 2 U.S.C. 434(f)(2)(E) 
and (F). BCRA uses the more general ``disbursement'' more frequently. 2 
U.S.C. 434(f)(2)(A), (B), (C), (E), and (F). Nor does BCRA amend the 
definition of ``contribution.'' See 2 U.S.C. 431(8). Additionally, the 
Commission concluded that political committees do not make 
disbursements for electioneering communications by operation of the 
expenditure and independent expenditure exemptions. Based on this 
analysis, the Commission proposed to treat funds given to persons who 
make electioneering communications as ``donations.'' See also Reporting 
NPRM, 67 FR at 64,560-61. One commenter agreed with the Commission's 
approach and none opposed it. At this point, the Commission concludes 
that its analysis of the statutory wording is correct. Accordingly, the 
final rules treat these funds as ``donations'' and not as 
``contributions.''
    In reading 2 U.S.C. 434(f)(2)(E) and (F) together with 2 U.S.C. 
441b(c)(3)(B), the Commission stated in the Electioneering 
Communications NPRM that the disclosure requirements for segregated 
bank accounts appear to apply only to qualified nonprofit corporations 
(QNCs) organized under 26 U.S.C. 501(c)(4). See 67 FR at 51,143 and 11 
CFR 114.10. Therefore, proposed 11 CFR 104.19(b)(6) would have 
permitted only QNCs to use segregated bank accounts to limit disclosure 
of their donors to only those who donate $1000 or more to that account. 
Commenters on the Electioneering Communications NPRM urged that this 
option be made available to all persons who make electioneering 
communications, and not just QNCs. Because the Commission agreed with 
this suggestion, proposed 104.20(c)(7) in the Reporting NPRM made this 
option available to all persons.
    The Commission continues to agree with this approach. Accordingly, 
new section 104.20(c)(7) in the final rules allows all persons who 
establish a separate bank account consisting of funds provided solely 
by individuals who are United States citizens, nationals, or permanent 
residents to limit their reporting of the identities of their donors of 
$1,000 or more to those donors who have given directly to that bank 
account, as long as only funds from the separate bank account are used 
to pay for electioneering communications. Please note that the final 
rules at 11 CFR 114.14(d)(2), as published previously in the 
Electioneering Communications Final Rules, provide such persons that 
are not QNCs with the option of establishing a segregated bank account 
similar to that allowed to QNCs. 67 FR 65,212.
    Although no commenter addressed this provision specifically, one 
joint comment questioned the requirement that QNCs disclose their 
donors. The joint commenter made constitutional arguments and cited FEC 
v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) (``MCFL'') and 
other cases in support of the assertions that disclosure of its donors 
imposes a burden on its free speech rights. They also stated that the 
segregated bank account option creates an administrative burden and 
would still require disclosure of some of their donors. The joint 
comment suggested that, with regard to QNCs, the Commission impose the 
same requirements for disclosure of electioneering communication as it 
does for independent expenditures arguing that legislative history 
indicates that Congress intended them to be treated similarly.
    In some respects, the reporting rules applicable to QNCs' 
electioneering communications require less disclosure than those 
applicable to QNCs' independent expenditures. Electioneering 
communication rules require disclosure of donors of $1,000 or more, 
while independent expenditure rules require disclosure of contributors 
of more than $200. Compare new 11 CFR 104.20(c)(7) or (8) with new 11 
CFR 109.10(e)(1)(vi). Additionally, electioneering communications are 
not subject to disclosure until disbursements related to them exceed 
$10,000, and the similar threshold for independent expenditures is 
$250. See 11 CFR 104.20(a)(1). While reporting of independent 
expenditure contributors is limited to those who contributed 
specifically for independent expenditures, 11 CFR 109.10(e)(1)(vi), 
QNCs can also reduce their reporting obligations by using separate bank 
accounts pursuant to 11 CFR 104.20(c)(7).
    More generally, a commenter on the Electioneering Communications 
NPRM and the joint comment on the Reporting NPRM argued that the 
members of the organizations they represent could be subject to 
negative consequences if their names are disclosed in connection with 
an electioneering communication. The FECA provides for an advisory 
opinion process concerning the application of any of the statutes 
within the Commission's jurisdiction or any regulations promulgated by 
the Commission, and such groups could also seek an advisory opinion 
from the Commission to determine if the groups would be entitled to an 
exemption from disclosure that would be analogous to the exemption 
provided to the Socialist Workers Party. See Advisory Opinions 1990-13 
and 1996-46 (both of which allowed the Socialist Workers Party to 
withhold the identities of its contributors and persons to whom it had 
disbursed funds because of a reasonable probability that the compelled 
disclosure of the party's contributors' names would subject them to 
threats, harassment, or reprisals from either Government officials or 
private parties). BCRA's legislative history shows that some in 
Congress recognized the need for limited exceptions in these 
circumstances. See 148 Cong. Rec. S2136 (daily ed. Mar. 20, 2002) 
(remarks of Sen. Snowe). The Commission disagrees with the joint 
commenters' assertion that the standard for obtaining a waiver is too 
high, given the significant disclosure interests Congress sought to 
protect in the political arena.
    Nevertheless, MCFL status does not exempt a corporation from the 
independent expenditure reporting requirements. It only exempts the 
MCFL corporation's use of its own funds from the prohibitions of 2 
U.S.C. 441b. The Supreme Court in MCFL specifically noted the reporting 
requirements of 2 U.S.C. 434(c) and stated that ``these reporting 
obligations provide precisely the information necessary to monitor 
MCFL's independent spending activity and its receipt of 
contributions.'' MCFL, 479 U.S. at 262. Thus, the Commission's 
extension of the exemption of MCFL does not apply to reporting 
requirements for electioneering communications. Therefore, the 
Commission declines to create separate electioneering communication 
reporting requirements for QNCs.

H. 11 CFR 104.20(c)(8) Disclosure of Donors When Not Using a Segregated 
Bank Account

    The Electioneering Communications NPRM explaining proposed section 
104.19(b)(7) clearly stated that all persons who make electioneering 
communications, including QNCs that do not use segregated bank 
accounts, would be required to disclose their contributors who 
contribute an aggregate of $1,000 or more during the prescribed time 
period. 67 FR 51,143. Nevertheless, some commenters interpreted 
proposed section 104.19(b)(7) to apply only to QNCs and objected to 
limiting the disclosure requirements to only QNCs. They argued that 
BCRA does not limit the requirements of 2 U.S.C. 434(f)(2)(E) and (F) 
to just QNCs. Consequently, they

[[Page 414]]

recommended that all persons who make electioneering communications 
should be required to disclose their contributors under proposed 
section 104.19(b)(7). Additionally, some commenters expressed concern 
as to the requirement that organizations would be required to disclose 
their donors because donors may become inhibited from making donations 
aggregating $1,000 or more.
    In order to eliminate the confusion, proposed 11 CFR 104.20(c)(8) 
in the Reporting NPRM differed from proposed section 104.19(b)(7) in 
the Electioneering Communications NPRM in that it removed the reference 
to QNCs. Thus, proposed section 104.20(c)(8) sought to clarify that all 
persons who make electioneering communications would be required to 
disclose their donors who donate $1,000 or more in the aggregate during 
the prescribed period, if they do not use segregated bank accounts. 
Other than the commenters that objected to disclosure of their donors, 
discussed above, the Commission did not receive any comments on this 
requirement. Because BCRA at 2 U.S.C. 434(f)(2)(F) specifically 
mandates disclosure of this information, the final rule at 11 CFR 
104.20(c)(8) is identical to the proposed rule in the Reporting NPRM.

I. Disclosure Requirements for Individuals Who Make Electioneering 
Communications

    The Commission also sought comments on how the proposed rules would 
apply to individuals making electioneering communications. The 
Commission did not receive any comments on this topic. The Commission 
concludes that, in instances where an individual makes a disbursement 
for an electioneering communication, 11 CFR 104.20(c)(1) requires 
disclosure of the identification of the individual, which means his or 
her name, address, occupation, and employer.
    New 11 CFR 104.20(c)(2) requires the identification of any person 
sharing or exercising direction or control over the activities of the 
person who made the disbursement, or who executed a contract to make a 
disbursement, which implements 2 U.S.C. 434(f)(2)(A). The term 
``direction or control'' in 2 U.S.C. 434(f)(2)(A) refers to the 
management or decision-making process of an organization, as the 
Commission has noted. See Explanation and Justification for 11 CFR 
104.20(c)(2), above, and Reporting NPRM, 67 FR at 64,560. Therefore, 
the Commission defines ``sharing or exercising direction or control'' 
in new 11 CFR 104.20(a)(3) with a four-part test applicable only to 
organizations and entities. Individuals are required to disclose any 
person sharing or exercising direction or control over their 
electioneering communication activities.
    For purposes of new 11 CFR 104.20(c)(7) and (8), individuals are 
required to disclose donations received, which does not include salary, 
wages, or other compensation for employment. Donations required to be 
disclosed do include, however, gifts of $1,000 or more from any source. 
The remainder of 11 CFR 104.20(c) applies to individuals in the same 
manner it applies to any other persons making electioneering 
communications. See 11 CFR 104.20(c)(3) through (6).
8. 11 CFR 104.20(d) Recordkeeping Requirement
    The final rules at 11 CFR 104.20(d) require all persons who make 
electioneering communications or accept donations for the purpose of 
making electioneering communications to maintain records in accordance 
with 11 CFR 104.14. In the Electioneering Communications NPRM, proposed 
section 104.19(c) would have exempted QNCs from the recordkeeping 
requirements. The commenters who addressed this issue were split on 
whether QNCs should be exempted from the recordkeeping requirements. A 
commenter who did not support the exemption argued that because these 
entities are required to report their electioneering communications, 
they should also be required to maintain records that relate to the 
electioneering communications to support their reports.
    In determining that all of the reporting and recordkeeping 
requirements for political committees were too burdensome for QNCs 
making independent expenditures, the Supreme Court in MCFL noted that 
MCFL, Inc. was subject to more ``extensive requirements and more 
stringent restrictions'' than unincorporated nonprofit organizations. 
479 U.S. at 254-255. For this reason, proposed section 104.20(d) in the 
Reporting NPRM required QNCs to maintain only those records that 
pertain to their electioneering communications, which is a much reduced 
obligation. Additionally, this recordkeeping requirement is identical 
to what is required of any other person, including unincorporated 
nonprofit organizations, that make disbursements for electioneering 
communications. Furthermore, the availability of these records is 
necessary to assess the accuracy of the electioneering communications 
reports filed by QNCs. Thus, proposed paragraph (d) in the Reporting 
NPRM did not include an exemption for QNCs. No subsequent comments were 
received concerning this paragraph. After consideration of the reasons 
stated above and in the NPRM, the Commission has concluded that a QNC 
exemption from recordkeeping is unwarranted. Therefore, new section 
104.20(d) requires all persons, including QNCs, who make or accept 
donations for electioneering communications to maintains records in 
accordance with 11 CFR 104.14.
9. 11 CFR 104.20(e) State Waivers
    Paragraph (e), which was not included in the NPRM, repeats the 
information in 11 CFR 104.20(b) that the place of filing for statements 
of electioneering communications is the Commission. This paragraph also 
states that like all other reports or statements, copies of the 
statement filed with the Commission must also be filed with the 
appropriate State official unless the state has obtained a waiver under 
11 CFR 108.1(b). The NPRM sought comment on whether this waiver should 
apply to statements of electioneering communications. The Commission 
received no comments on this issue. Because section 108.1 of 11 CFR 
applies to all reports and statements filed with the Commission (and 
when appropriate the Secretary of the Senate), statements of 
electioneering communications clearly fall within its rubric. See 
discussion of 11 CFR 108.1, below.

11 CFR 105.2 Place of Filing; Senate Candidates, Their Principal 
Campaign Committees, and Committees Supporting Only Senate Candidates 
(2 U.S.C. 434(g)(3))

    The Commission's pre-BCRA regulations required that 24-hour reports 
of independent expenditures supporting or opposing Senate candidates be 
filed with the Secretary of the Senate. See pre-BCRA 11 CFR 
104.4(c)(2), 105.2, and 109.2(b). Revisions to 11 CFR 105.2 place the 
text of pre-BCRA 11 CFR 105.2 in paragraph (a), and add the heading, 
``General Rule.''
    New paragraph (b) of 11 CFR 105.2, headed, ``Exceptions,'' 
implements exceptions to this general rule created by BCRA. BCRA 
establishes the Commission as the place of filing for both 24-hour and 
48-hour reports of independent expenditures, regardless of the office 
sought by the clearly identified candidate. 2 U.S.C. 434(g)(3)(A). In 
the Reporting NPRM, the proposed revisions to section 105.2

[[Page 415]]

would have made the Commission the point of filing for all 24-hour and 
48-hour reports of independent expenditures. The Commission received no 
comments on this section, and the final rules follow the proposed rules 
regarding independent expenditures.
    Similarly, BCRA establishes the Commission as the place of filing 
for electioneering communication statements, regardless of the office 
sought by the clearly identified candidate. 2 U.S.C. 434(f)(1). In the 
Electioneering Communications NPRM, proposed revisions to section 105.2 
would have made the Commission the point of filing for all 
electioneering communication statements. 67 FR at 51,146. However, the 
Reporting NPRM proposed that 11 CFR 105.2(b) would not mention 
electioneering communication statements because section 105.2 only 
discusses reporting by political committees. 67 FR at 64,562. By 
operation of 2 U.S.C. 434(f)(3)(B)(ii) and 11 CFR 100.29(c)(3), 
communications paid for with expenditures and independent expenditures 
are excluded from the definition of ``electioneering communications.'' 
Therefore, revised section 105.2(b), as proposed in the Reporting NPRM 
and as promulgated in these final rules, does not mention statements of 
electioneering communications. Nonetheless, electioneering 
communications by others may refer to Senatorial candidates. Under 11 
CFR 104.20(b), electioneering communication statements related to 
electioneering communications that refer to a clearly identified 
candidate for Senate must be filed with the Commission, not the 
Secretary of the Senate.

11 CFR 108.1 Filing Requirements

    Paragraph (a) of 11 CFR 108.1 contains the general rule that a copy 
of each report and statement that is required to be filed with the 
Commission or the Secretary of the Senate must be filed with the 
Secretary of State for the appropriate State. The Commission is not 
making any changes to this general rule.
    The rules at 11 CFR 108.1(b) provide an exception to the 
requirement that reporting entities must file copies of their reports 
with the Secretary of State for the appropriate State. This exception 
is allowed in States that have received a waiver from the Commission 
because the State can electronically receive and duplicate reports and 
statements filed with the Commission. The reporting requirements for 
both independent expenditures and electioneering communications 
specifically explain that if a State has obtained a waiver under 11 CFR 
108.1(b), then reporting entities are not required to file reports or 
statements with the Secretary of State for that State. See 11 CFR 
104.4(e)(4) and 104.20(e). In the NPRM, the Commission proposed adding 
to paragraph (b) a statement that the list of States that have obtained 
waivers under this section is available on the Commission's website. 
The Commission received no comments on this proposal, and the final 
rule follows the proposed rule.

11 CFR 109.2 [Reserved]

    Section 109.2 of 11 CFR is removed and reserved for future use.

11 CFR 109.10 Independent Expenditure by Persons Other Than Political 
Committees

    The NPRM proposed to move the reporting requirements for persons 
other than political committees who make independent expenditures from 
pre-BCRA 11 CFR 109.2 to new 11 CFR 109.10. Other proposed revisions to 
this section generally followed the proposals regarding independent 
expenditure reporting by political committees, which are discussed 
above in the Explanation and Justification for 11 CFR 104.4. The 
Commission received no comments on this section. The final rules 
generally follow the proposed rules except as explained below.
    Under new section 109.10, persons other than political committees 
must report their independent expenditures on either FEC Form 5 or in a 
signed statement containing certain information regarding the person 
who made the independent expenditure and the nature of the independent 
expenditure itself.
    Paragraph (a) of new 11 CFR 109.10 states that political committees 
must report independent expenditures under 11 CFR 104.4.
    Section 109.10(b) contains the general reporting requirement for 
persons other than political committees previously found in 11 CFR 
109.2(a). New paragraph (b) states that persons other than political 
committees must report independent expenditures in excess of $250 in a 
calendar year. New paragraph (b) specifically states that these reports 
must be filed in accordance with the quarterly reporting schedule 
specified in 11 CFR 104.5(a)(1)(i) and (ii). Paragraph (b) has been 
revised since the NPRM to establish that reporting entities must follow 
the quarterly reporting schedule.
    Paragraph (c) addresses reports of independent expenditures 
aggregating $10,000 or more with respect to a given election from the 
beginning of the calendar year up to and including the 20th day before 
an election. This paragraph requires that 48-hour reports of 
independent expenditures be received rather than filed by 11:59 pm on 
the second day after the date on which the $10,000 threshold is 
reached.
    Revisions to paragraph (d) of new 11 CFR 109.10 (which was pre-BCRA 
11 CFR 109.2(b)) also follow the changes in 11 CFR 104.4(c) regarding 
24-hour reports of independent expenditures aggregating $1,000 or more 
after the 20th day before the election.
    Paragraph (e) of new 11 CFR 109.10 (which was pre-BCRA 11 CFR 
109.2(a)(1) and (c)) addresses the contents and verification of 
statements and reports filed under this section. Paragraph (e) has been 
clarified so that the information required to be disclosed applies to 
those using FEC Form 5 or a verified statement. Paragraph (e) includes 
one significant change from pre-BCRA section 109.2(a)(1) and (c): a 
person making an independent expenditure is now required to certify 
that the expenditure was made independently from a political party 
committee and its agents, in addition to pre-BCRA requirement of 
certification that the expenditure was not coordinated with a 
candidate, a candidate's authorized committee, or an agent of either of 
the foregoing. This change reflects the addition of political party 
committees to the definition of ``independent expenditure'' in 2 U.S.C. 
431(17) and the description of coordination in 2 U.S.C. 
441a(a)(7)(B)(ii) under BCRA.
    In BCRA, Congress deleted the term ``consultation'' from the list 
of activities that compromise the independence of expenditures. See 2 
U.S.C. 431(17)(B). Notwithstanding that change, in the Reporting NPRM 
the Commission proposed the retention of the term ``consultation'' 
because it remains, post-BCRA, in other related provisions of the Act. 
Reporting NPRM, 67 FR at 64,558 and 64,568. For the same reasons 
explained with reference to the definition of ``independent 
expenditure'' in 11 CFR 100.16, see Coordinated and Independent 
Expenditures, NPRM, 67 FR 60,042, 60,061 (Sept. 24, 2002); Coordinated 
and Independent Expenditures, Final Rules, 67 FR (forthcoming Dec. 
2002), the Commission is continuing to include ``consultation'' in the 
description of activity that would cause an expenditure to lose its 
independence (i.e., ``in cooperation, consultation, or concert with'' a 
candidate or political party committee), even though the

[[Page 416]]

statutory definition in 2 U.S.C. 431(17) does not retain the term.
    The comment from the Internal Revenue Service, which is described 
in the Explanation and Justification of 11 CFR 104.4, above, will be of 
interest to political organizations within the meaning of section 527 
of the Internal Revenue Code.

Certification of No Effect Pursuant to 5 U.S.C. 605(b) (Regulatory 
Flexibility Act)

    The Commission certifies that the attached final rules do not have 
a significant economic impact on a substantial number of small 
entities. The bases of this certification are several. There are four 
areas in which new rules are being promulgated. The economic impact on 
small entities of each new rule is addressed below.
1. Independent Expenditure Reporting
    First, with regard to the final rules addressing independent 
expenditures, the national, State, and local party committees of the 
two major political parties, and other political committees, are not 
small entities under 5 U.S.C. 601 because they are not small 
businesses, small organizations, or small governmental jurisdictions. 
Further, individuals operating under these rules are not small 
entities.
    The small entities to which the rules do apply will not be unduly 
burdened by the final rules because there is no significant extra cost 
involved, as independent expenditures must already be reported. 
Collectively, the differential costs will not exceed $100 million per 
year. In addition, new reporting requirements will not significantly 
increase costs, as they only apply to those spending $10,000 or more on 
independent expenditures, and the actual reporting requirements are the 
minimum necessary to comply with the new statute enacted by Congress.
2. Electioneering Communications
    Second, with regard to the final rules addressing electioneering 
communications, the only burden the final rules impose is on persons 
who make electioneering communications, and that burden is a minimal 
one, requiring persons who make such communications to provide the 
names and addresses of those who made donations of $1000 or more to 
that person when the costs of the electioneering communication exceed 
$10,000 per year. If that person is a corporation that qualifies as a 
QNC, then it must also certify that it meets that status. The number of 
small entities affected by the final rules is not substantial.
    In addition, the Commission is promulgating several rules that 
reduce any burden that might be placed on persons who must file 
electioneering communication reports. First, the Commission interprets 
the reporting requirement such that no reporting is required until 
after an electioneering communication is publicly distributed. More 
than likely, this will only require that person to file one report with 
the Commission. Also, the Commission is allowing all persons paying for 
electioneering communications to establish segregated bank accounts, 
and to report the names and addresses of only those persons who 
contributed to those accounts. Further, the Commission interprets the 
statute to not require that a certification of QNC status be filed 
until the person is also required to file a disclosure report. These 
are significant steps the Commission is taking to reduce the burden on 
those who make electioneering communications. The overall burden on the 
small entities affected by these final rules for reporting 
electioneering communications will not be $100 million on an annual 
basis. Moreover, these final rules are no more than what is strictly 
necessary to comply with the new statute enacted by Congress.
3. Reporting Schedules for House of Representatives and Senate 
Candidates
    Third, regarding the new rules requiring a new reporting schedule 
for non-election years for the authorized committees of House of 
Representatives and Senate candidates, the frequency of reports has 
increased. However, the additional cost will not reach $100 million on 
an annual basis. Moreover, these final rules are no more than what is 
strictly necessary to comply with the new statute enacted by Congress.
4. Reporting Schedules for National Committees of Political Parties
    Fourth, regarding the new rules requiring a different reporting 
schedule for national committees of political parties, as noted above, 
the two major national party committees are not small entities under 5 
U.S.C. 601. In addition, the new reporting schedule applicable to other 
national party committees will not result in a cost of $100 million per 
year, and is no more than what is strictly necessary to comply with the 
new statute enacted by Congress.

List of Subjects

11 CFR Part 100

    Elections.

11 CFR Part 104

    Campaign funds, Political committees and parties, Reporting and 
recordkeeping requirements.

11 CFR Part 105

    Campaign funds, Political candidates, Political committees and 
parties, Reporting and recordkeeping requirements.

11 CFR Part 108

    Elections, Reporting and recordkeeping requirements.

11 CFR Part 109

    Elections, Reporting and recordkeeping requirements.


    For the reasons set out in the preamble, subchapter A of chapter I 
of title 11 of the Code of Federal Regulations is amended as follows:

PART 100--SCOPE AND DEFINITIONS

    1. The authority citation for part 100 continues to read as 
follows:

    Authority: 2 U.S.C. 431, 434, and 438(a)(8).


    2. Section 100.19 is revised as follows:
    (a) Revising the introductory text and paragraphs (b) through (e).
    (b) Adding a heading to paragraph (a) and adding paragraph (f).
    The revisions and additions read as follows.


Sec.  100.19  File, filed, or filing (2 U.S.C. 434(a)).

    With respect to documents required to be filed under 11 CFR parts 
101, 102, 104, 105, 107, 108, and 109, and any modifications or 
amendments thereto, the terms file, filed, and filing mean one of the 
actions set forth in paragraphs (a) through (f) of this section. For 
purposes of this section, document means any report, statement, notice, 
or designation required by the Act to be filed with the Commission or 
the Secretary of the Senate.
    (a) Where to deliver reports. * * *
    (b) Timely filed. A document, other than those addressed in 
paragraphs (c) through (f) of this section, is timely filed upon 
deposit as registered or certified mail in an established U.S. Post 
Office and postmarked no later than 11:59 p.m. Eastern Standard/
Daylight Time on the filing date, except that pre-election reports so 
mailed must be postmarked no later than 11:59 p.m. Eastern Standard/
Daylight Time on the fifteenth day before the date of the election. 
Documents sent by first class mail must be received by the close of 
business on the prescribed filing date to be timely filed.

[[Page 417]]

    (c) Electronically filed reports. For electronic filing purposes, a 
document is timely filed when it is received and validated by the 
Federal Election Commission by 11:59 p.m. Eastern Standard/Daylight 
Time on the filing date.
    (d) 48-hour and 24-hour reports of independent expenditures.
    (1) 48-hour reports of independent expenditures. A 48-hour report 
of independent expenditures under 11 CFR 104.4(b) or 109.10(c) is 
timely filed when it is received by the Commission by 11:59 p.m. 
Eastern Standard/Daylight Time on the second day following the date on 
which independent expenditures aggregate $10,000 or more in accordance 
with 11 CFR 104.4(f), any time during the calendar year up to and 
including the 20th day before an election.
    (2) 24-hour reports of independent expenditures. A 24-hour report 
of independent expenditures under 11 CFR 104.4(c) or 109.10(d) is 
timely filed when it is received by the Commission by 11:59 p.m. 
Eastern Standard/Daylight Time on the day following the date on which 
independent expenditures aggregate $1,000 or more, in accordance with 
11 CFR 104.4(f), during the period less than 20 days but more than 24 
hours before an election.
    (3) Permissible means of filing. In addition to other permissible 
means of filing, a 24-hour report or 48-hour report of independent 
expenditures may be filed using a facsimile machine or by electronic 
mail if the reporting entity is not required to file electronically in 
accordance with 11 CFR 104.18. Political committees, regardless of 
whether they are required to file electronically under 11 CFR 104.18, 
may file 24-hour reports using the Commission's website's on-line 
program.
    (e) 48-hour statements of last-minute contributions. In addition to 
other permissible means of filing, authorized committees that are not 
required to file electronically may file 48-hour notifications of 
contributions using facsimile machines. All authorized committees that 
file with the Commission, including electronic reporting entities, may 
use the Commission's website's on-line program to file 48-hour 
notifications of contributions. See 11 CFR 104.5(f).
    (f) 24-hour statements of electioneering communications. A 24-hour 
statement of electioneering communications under 11 CFR 104.20 is 
timely filed when it is received by the Commission by 11:59 p.m. 
Eastern Standard/Daylight Time on the day following the disclosure 
date. (See 11 CFR 104.20(a)(1) and (b)). In addition to other 
permissible means of filing, a 24-hour statement of electioneering 
communications may be filed using a facsimile machine or by electronic 
mail if the reporting entity is not required to file electronically in 
accordance with 11 CFR 104.18.

PART 104--REPORTS BY POLITICAL COMMITTEES (2 U.S.C. 434)

    3. The authority citation for part 104 continues to read as 
follows:

    Authority: 2 U.S.C. 431(1), 431(8), 431(9), 432(i), 434, 
438(a)(8) and (b), and 439a.


    4. In Sec.  104.3, paragraph (g) is revised to read as follows:


Sec.  104.3  Contents of reports (2 U.S.C. 434(b), 439a).

* * * * *
    (g) Building funds.
    (1) A political party committee must report gifts, subscriptions, 
loans, advances, deposits of money, or anything of value that are used 
by the political party committee's Federal accounts to defray the costs 
of construction or purchase of the committee's office building. See 11 
CFR 300.35. Such a receipt is a contribution subject to the limitations 
and prohibitions of the Act and reportable as a contribution, 
regardless of whether the contributor has designated the funds or 
things of value for such purpose and regardless of whether such funds 
are deposited in a separate Federal account dedicated to that purpose.
    (2) Gifts, subscriptions, loans, advances, deposits of money, or 
anything of value that are donated to a non-Federal account of a State 
or local party committee and are used by that party committee for the 
purchase or construction of its office building are not contributions 
subject to the reporting requirements of the Act. The reporting of such 
funds or things of value is subject to State law.
    (3) Gifts, subscriptions, loans, advances, deposits of money, or 
anything of value that are used by a national committee of a political 
party to defray the costs of construction or purchase of the national 
committee's office building are contributions subject to the 
requirements of paragraph (g)(1) of this section.
* * * * *

    5. Section 104.4 is revised to read as follows:


Sec.  104.4  Independent expenditures by political committees (2 U.S.C. 
434(b), (d), and (g)).

    (a) Regularly scheduled reporting. Every political committee that 
makes independent expenditures must report all such independent 
expenditures on Schedule E in accordance with 11 CFR 104.3(b)(3)(vii). 
Every person that is not a political committee must report independent 
expenditures in accordance with paragraphs (e) and (f) of this section 
and 11 CFR 109.10.
    (b) Reports of independent expenditures made at any time up to and 
including the 20th day before an election.
    (1) Independent expenditures aggregating less than $10,000 in a 
calendar year. Political committees must report on Schedule E of FEC 
Form 3X at the time of their regular reports in accordance with 11 CFR 
104.3, 104.5 and 104.9, all independent expenditures aggregating less 
than $10,000 with respect to a given election any time during the 
calendar year up to and including the 20th day before an election.
    (2) Independent expenditures aggregating $10,000 or more in a 
calendar year. Political committees must report on Schedule E of FEC 
Form 3X all independent expenditures aggregating $10,000 or more with 
respect to a given election any time during the calendar year up to and 
including the 20th day before an election. Political committees must 
ensure that the Commission receives these reports by 11:59 p.m. Eastern 
Standard/Daylight Time on the second day following the date on which a 
communication that constitutes an independent expenditure is publicly 
distributed or otherwise publicly disseminated. Each time subsequent 
independent expenditures relating to the same election aggregate an 
additional $10,000 or more, the political committee must ensure that 
the Commission receives a new 48-hour report of the subsequent 
independent expenditures by 11:59 p.m. Eastern Standard/Daylight Time 
on the second day following the date on which the communication is 
publicly distributed or otherwise publicly disseminated. (See paragraph 
(f) of this section for aggregation.) Each 48-hour report must contain 
the information required by 11 CFR 104.3(b)(3)(vii) indicating whether 
the independent expenditure is made in support of, or in opposition to, 
the candidate involved. In addition to other permissible means of 
filing, a political committee may file the 48-hour reports under this 
section by any of the means permissible under 11 CFR 100.19(d)(3).
    (c) Reports of independent expenditures made less than 20 days, but 
more than 24 hours before the day of an election. Political committees 
must ensure that the Commission

[[Page 418]]

receives reports of independent expenditures aggregating $1,000 or more 
with respect to a given election, after the 20th day, but more than 24 
hours before 12:01 a.m. of the day of the election, by 11:59 p.m. 
Eastern Standard/Daylight Time on the day following the date on which a 
communication is publicly distributed or otherwise publicly 
disseminated. Each time subsequent independent expenditures relating to 
the same election aggregate an additional $1,000 or more, the political 
committee must ensure that the Commission receives a new 24-hour report 
of the subsequent independent expenditures by 11:59 p.m. Eastern 
Standard/Daylight Time on the day following the date on which a 
communication that constitutes an independent expenditure is publicly 
distributed or otherwise publicly disseminated. (See paragraph (f) of 
this section for aggregation.) Each 24-hour report shall contain the 
information required by 11 CFR 104.3(b)(3)(vii) indicating whether the 
independent expenditure is made in support of, or in opposition to, the 
candidate involved. Political committees may file reports under this 
section by any of the means permissible under 11 CFR 100.19(d)(3).
    (d) Verification. Political committees must verify reports of 
independent expenditures filed under paragraph (b) or (c) of this 
section by one of the methods stated in paragraph (d)(1) or (2) of this 
section. Any report verified under either of these methods shall be 
treated for all purposes (including penalties for perjury) in the same 
manner as a document verified by signature.
    (1) For reports filed on paper (e.g., by hand-delivery, U.S. Mail 
or facsimile machine), the treasurer of the political committee that 
made the independent expenditure must certify, under penalty of 
perjury, the independence of the expenditure by handwritten signature 
immediately following the certification required by 11 CFR 
104.3(b)(3)(vii).
    (2) For reports filed by electronic mail, the treasurer of the 
political committee that made the independent expenditure shall 
certify, under penalty of perjury, the independence of the expenditure 
by typing the treasurer's name immediately following the certification 
required by 11 CFR 104.3(b)(3)(vii).
    (e) Where to file. Reports of independent expenditures under this 
section and 11 CFR 109.10(b) shall be filed as follows:
    (1) For independent expenditures in support of, or in opposition 
to, a candidate for President or Vice President: with the Commission 
and the Secretary of State for the State in which the expenditure is 
made.
    (2) For independent expenditures in support of, or in opposition 
to, a candidate for the Senate:
    (i) For regularly scheduled reports, with the Secretary of the 
Senate and the Secretary of State for the State in which the candidate 
is seeking election; or
    (ii) For 24-hour and 48-hour reports, with the Commission and the 
Secretary of State for the State in which the candidate is seeking 
election.
    (3) For independent expenditures in support of, or in opposition 
to, a candidate for the House of Representatives: with the Commission 
and the Secretary of State for the State in which the candidate is 
seeking election.
    (4) Notwithstanding the requirements of paragraphs (e)(1), (2), and 
(3) of this section, political committees and other persons shall not 
be required to file reports of independent expenditures with the 
Secretary of State if that State has obtained a waiver under 11 CFR 
108.1(b).
    (f) Aggregating independent expenditures for reporting purposes. 
For purposes of determining whether 24-hour and 48-hour reports must be 
filed in accordance with paragraphs (b) and (c) of this section and 11 
CFR 109.10(c) and (d), aggregations of independent expenditures must be 
calculated as of the first date on which a communication that 
constitutes an independent expenditure is publicly distributed or 
otherwise publicly disseminated, and as of the date that any such 
communication with respect to the same election is subsequently 
publicly distributed or otherwise publicly disseminated. Every person 
must include in the aggregate total all disbursements during the 
calendar year for independent expenditures, and all enforceable 
contracts, either oral or written, obligating funds for disbursements 
during the calendar year for independent expenditures, where those 
independent expenditures are made with respect to the same election for 
Federal office.

    6. In Sec.  104.5, paragraph (a), the intro text and heading of 
paragraph (c), and paragraph (g) are revised to read as follows, and 
paragraphs (c)(4) and (j) are added to read as follows:


Sec.  104.5  Filing dates (2 U.S.C. 434(a)(2)).

    (a) Principal campaign committee of House of Representatives or 
Senate candidate. Each treasurer of a principal campaign committee of a 
candidate for the House of Representatives or for the Senate must file 
quarterly reports on the dates specified in paragraph (a)(1) of this 
section in both election years and non-election years, and must file 
additional reports on the dates specified in paragraph (a)(2) of this 
section in election years.
    (1) Quarterly reports.
    (i) Quarterly reports must be filed no later than the 15th day 
following the close of the immediately preceding calendar quarter (on 
April 15, July 15, and October 15), except that the report for the 
final calendar quarter of the year must be filed no later than January 
31 of the following calendar year.
    (ii) The report must be complete as of the last day of each 
calendar quarter.
    (iii) The requirement for a quarterly report shall be waived if, 
under paragraph (a)(2) of this section, a pre-election report is 
required to be filed during the period beginning on the 5th day after 
the close of the calendar quarter and ending on the 15th day after the 
close of the calendar quarter.
    (2) Additional reports in the election year.
    (i) Pre-election reports.
    (A) Pre-election reports for the primary and general election must 
be filed no later than 12 days before any primary or general election 
in which the candidate seeks election. If sent by registered or 
certified mail, the report must be mailed no later than the 15th day 
before any election.
    (B) The pre-election report must disclose all receipts and 
disbursements as of the 20th day before a primary or general election.
    (ii) Post-general election report.
    (A) The post-general election report must be filed no later than 30 
days after any general election in which the candidate seeks election.
    (B) The post-general election report must be complete as of the 
20th day after the general election.
* * * * *
    (c) Political committees that are not authorized committees of 
candidates. Except as provided in paragraph (c)(4) of this section, 
each political committee that is not the authorized committee of a 
candidate must file either: Election year and non-election year reports 
in accordance with paragraphs (c)(1) and (2) of this section; or 
monthly reports in accordance with paragraph (c)(3) of this section. A 
political committee reporting under paragraph (c) of this section may 
elect to change the frequency of its reporting from monthly to 
quarterly and semi-annually or vice versa. A political committee 
reporting under this paragraph (c) may change the frequency of its 
reporting only after notifying the Commission in writing of its 
intention at the time it files a required report

[[Page 419]]

under its current filing frequency. Such political committee will then 
be required to file the next required report under its new filing 
frequency. A political committee may change its filing frequency no 
more than once per calendar year.
* * * * *
    (4) National party committee reporting. Notwithstanding anything to 
the contrary in this paragraph, a national committee of a political 
party, including a national Congressional campaign committee, must 
report monthly in accordance with paragraph (c)(3) of this section in 
both election and non-election years.
* * * * *
    (g) Reports of independent expenditures.
    (1) 48-hour reports of independent expenditures. Every person that 
must file a 48-hour report under 11 CFR 104.4(b) must ensure the 
Commission receives the report by 11:59 p.m. Eastern Standard/Daylight 
Time on the second day following the date on which a communication that 
constitutes an independent expenditure is publicly distributed or 
otherwise publicly disseminated. Each time subsequent independent 
expenditures by that person relating to the same election as that to 
which the previous report relates aggregate $10,000 or more, that 
person must ensure that the Commission receives a new 48-hour report of 
the subsequent independent expenditures by 11:59 p.m. Eastern Standard/
Daylight Time on the second day following the date on which the $10,000 
threshold is reached or exceeded. (See 11 CFR 104.4(f) for 
aggregation.)
    (2) 24-hour reports of independent expenditures. Every person that 
must file a 24-hour report under 11 CFR 104.4(c) must ensure that the 
Commission receives the report by 11:59 p.m. Eastern Standard/Daylight 
Time on the day following the date on which a communication that 
constitutes an independent expenditure is publicly distributed or 
otherwise publicly disseminated. Each time subsequent independent 
expenditures by that person relating to the same election as that to 
which the previous report relates aggregate $1,000 or more, that person 
must ensure that the Commission receives a 24-hour report of the 
subsequent independent expenditures by 11:59 p.m. Eastern Standard/
Daylight Time on the day following the date on which the $1,000 
threshold is reached or exceeded. (See 11 CFR 104.4(f) for 
aggregation.)
    (3) Each 24-hour or 48-hour report of independent expenditures 
filed under this section shall contain the information required by 11 
CFR 104.3(b)(3)(vii) indicating whether the independent expenditure is 
made in support of, or in opposition to, the candidate involved.
    (4) For purposes of this part and 11 CFR part 109, a communication 
that is mailed to its intended audience is publicly disseminated when 
it is relinquished to the U.S. Postal Service.
* * * * *
    (j) 24-hour statements of electioneering communications. Every 
person who has made a disbursement or who has executed a contract to 
make a disbursement for the direct costs of producing or airing 
electioneering communications as defined in 11 CFR 100.29 aggregating 
in excess of $10,000 during any calendar year shall file a statement 
with the Commission by 11:59 p.m. Eastern Standard/Daylight Time on the 
day following the disclosure date. The statement shall be filed under 
penalty of perjury and in accordance with 11 CFR 104.20.


Sec.  104.19  [Reserved.]

    7. Section 104.19 is added and reserved.

    8. Section 104.20 is added to read as follows:


Sec.  104.20  Reporting electioneering communications (2 U.S.C. 
434(f)).

    (a) Definitions.
    (1) Disclosure date means:
    (i) The first date on which an electioneering communication is 
publicly distributed provided that the person making the electioneering 
communication has made one or more disbursements, or has executed one 
or more contracts to make disbursements, for the direct costs of 
producing or airing one or more electioneering communications 
aggregating in excess of $10,000; or
    (ii) Any other date during the same calendar year on which an 
electioneering communication is publicly distributed provided that the 
person making the electioneering communication has made one or more 
disbursements, or has executed one or more contracts to make 
disbursements, for the direct costs of producing or airing one or more 
electioneering communications aggregating in excess of $10,000 since 
the most recent disclosure date during such calendar year.
    (2) Direct costs of producing or airing electioneering 
communications means the following:
    (i) Costs charged by a vendor, such as studio rental time, staff 
salaries, costs of video or audio recording media, and talent; or
    (ii) The cost of airtime on broadcast, cable or satellite radio and 
television stations, studio time, material costs, and the charges for a 
broker to purchase the airtime.
    (3) Persons sharing or exercising direction or control means 
officers, directors, executive directors or their equivalent, partners, 
and in the case of unincorporated organizations, owners, of the entity 
or person making the disbursement for the electioneering communication.
    (4) Identification has the same meaning as in 11 CFR 100.12.
    (5) Publicly distributed has the same meaning as in 11 CFR 
100.29(a)(3).
    (b) Who must report and when. Every person who has made an 
electioneering communication, as defined in 11 CFR 100.29, aggregating 
in excess of $10,000 during any calendar year shall file a statement 
with the Commission by 11:59 p.m. Eastern Standard/Daylight Time on the 
day following the disclosure date. The statement shall be filed under 
penalty of perjury, shall contain the information set forth in 
paragraph (c) of this section, and shall be filed on FEC Form 9. 
Political committees that make communications that are described in 11 
CFR 100.29(a) must report such communications as expenditures or 
independent expenditures under 11 CFR 104.3 and 104.4, and not under 
this section.
    (c) Contents of statement. Statements of electioneering 
communications filed under paragraph (b) of this section shall disclose 
the following information:
    (1) The identification of the person who made the disbursement, or 
who executed a contract to make a disbursement, and, if the person is 
not an individual, the person's principal place of business;
    (2) The identification of any person sharing or exercising 
direction or control over the activities of the person who made the 
disbursement or who executed a contract to make a disbursement;
    (3) The identification of the custodian of the books and accounts 
from which the disbursements were made;
    (4) The amount of each disbursement, or amount obligated, of more 
than $200 during the period covered by the statement, the date the 
disbursement was made, or the contract was executed, and the 
identification of the person to whom that disbursement was made;
    (5) All clearly identified candidates referred to in the 
electioneering communication and the elections in which they are 
candidates;

[[Page 420]]

    (6) The disclosure date, as defined in paragraph (a) of this 
section;
    (7) If the disbursements were paid exclusively from a segregated 
bank account consisting of funds provided solely by individuals who are 
United States citizens, United States nationals, or who are lawfully 
admitted for permanent residence under 8 U.S.C. 1101(a)(20), the name 
and address of each donor who donated an amount aggregating $1,000 or 
more to the segregated bank account, aggregating since the first day of 
the preceding calendar year; and
    (8) If the disbursements were not paid exclusively from a 
segregated bank account described in paragraph (c)(7) of this section, 
the name and address of each donor who donated an amount aggregating 
$1,000 or more to the person making the disbursement, aggregating since 
the first day of the preceding calendar year.
    (d) Recordkeeping. All persons who make electioneering 
communications or who accept donations for the purpose of making 
electioneering communications must maintain records in accordance with 
11 CFR 104.14.
    (e) State waivers. Statements of electioneering communications that 
must be filed with the Commission must also be filed with the Secretary 
of State of the appropriate State if the State has not obtained a 
waiver under 11 CFR 108.1(b).

PART 105--DOCUMENT FILING (2 U.S.C. 432(g))

    9. The authority citation for part 105 is revised to read as 
follows:

    Authority: 2 U.S.C. 432(g), 434, 438(a)(8).


    10. Section 105.2 is revised to read as follows:


Sec.  105.2  Place of filing; Senate candidates, their principal 
campaign committees, and committees supporting only Senate candidates 
(2 U.S.C. 432(g), 434(g)(3)).

    (a) General Rule. Except as provided in paragraph (b) of this 
section, all designations, statements, reports, and notices as well as 
any modification(s) or amendment(s) thereto, required to be filed under 
11 CFR parts 101, 102, and 104 by a candidate for nomination or 
election to the office of United States Senator, by his or her 
principal campaign committee or by any other political committee(s) 
that supports only candidates for nomination for election or election 
to the Senate of the United States shall be filed in original form 
with, and received by, the Secretary of the Senate, as custodian for 
the Federal Election Commission.
    (b) Exceptions. 24-hour and 48-hour reports of independent 
expenditures must be filed with the Commission and not with the 
Secretary of the Senate, even if the communication refers to a Senate 
candidate.

PART 108--FILING COPIES OF REPORTS AND STATEMENTS WITH STATE 
OFFICERS (2 U.S.C. 439)

    11. The authority citation for part 108 would continue to read as 
follows:

    Authority: 2 U.S.C. 434(a)(2), 438(a)(8), 439, 453.


    12. Paragraph (b) of Sec.  108.1 is revised to read as follows:


Sec.  108.1  Filing Requirements (2 U.S.C. 439(a)(1))

* * * * *
    (b) The filing requirements and duties of State officers under this 
part 108 shall not apply to a State if the Commission has determined 
that the State maintains a system that can electronically receive and 
duplicate reports and statements filed with the Commission. Once a 
State has obtained a waiver pursuant to this paragraph, the waiver 
shall apply to all reports that can be electronically accessed and 
duplicated from the Commission, regardless of whether the report or 
statement was originally filed with the Commission. The list of States 
that have obtained waivers under this section is available on the 
Commission's website.

PART 109--COORDINATED AND INDEPENDENT EXPENDITURES (2 U.S.C. 
431(17), 441a, Pub. L. 107-155 sec. 214(c) (March 27, 2002))

    13. The authority citation for part 109 continues to read as 
follows:

    Authority: 2 U.S.C. 431(17), 434(c), 441a; Pub. L. 155-107 sec. 
214(c).


Sec.  109.2  [Removed and Reserved]

    14. Section 109.2 is removed and reserved.
    15. Section 109.10 is added to read as follows:


Sec.  109.10  How do political committees and other persons report 
independent expenditures?

    (a) Political committees, including political party committees, 
must report independent expenditures under 11 CFR 104.4.
    (b) Every person that is not a political committee and that makes 
independent expenditures aggregating in excess of $250 with respect to 
a given election in a calendar year shall file a verified statement or 
report on FEC Form 5 in accordance with 11 CFR 104.4(e) containing the 
information required by paragraph (e) of this section. Every person 
filing a report or statement under this section shall do so in 
accordance with the quarterly reporting schedule specified in 11 CFR 
104.5(a)(1)(i) and (ii) and shall file a report or statement for any 
quarterly period during which any such independent expenditures that 
aggregate in excess of $250 are made and in any quarterly reporting 
period thereafter in which additional independent expenditures are 
made.
    (c) Every person that is not a political committee and that makes 
independent expenditures aggregating $10,000 or more with respect to a 
given election any time during the calendar year up to and including 
the 20th day before an election, must report the independent 
expenditures on FEC Form 5, or by signed statement if the person is not 
otherwise required to file electronically under 11 CFR 104.18. (See 11 
CFR 104.4(f) for aggregation.) The person making the independent 
expenditures aggregating $10,000 or more must ensure that the 
Commission receives the report or statement by 11:59 p.m. Eastern 
Standard/Daylight Time on the second day following the date on which a 
communication is publicly distributed or otherwise publicly 
disseminated. Each time subsequent independent expenditures relating to 
the same election aggregate an additional $10,000 or more, the person 
making the independent expenditures must ensure that the Commission 
receives a new 48-hour report of the subsequent independent 
expenditures. Each 48-hour report must contain the information required 
by paragraph (e)(1) of this section.
    (d) Every person making, after the 20th day, but more than 24 hours 
before 12:01 a.m. of the day of an election, independent expenditures 
aggregating $1,000 or more with respect to a given election must report 
those independent expenditures and ensure that the Commission receives 
the report or signed statement by 11:59 p.m. Eastern Standard/Daylight 
Time on the day following the date on which a communication is publicly 
distributed or otherwise publicly disseminated. Each time subsequent 
independent expenditures relating to the same election aggregate $1,000 
or more, the person making the independent expenditures must ensure 
that the Commission receives a new 24-hour report of the subsequent 
independent expenditures. (See 11 CFR 104.4(f) for aggregation.) Such 
report or statement shall contain the information required by paragraph 
(e) of this section.

[[Page 421]]

    (e) Content of verified reports and statements and verification of 
reports and statements.
    (1) Contents of verified reports and statement. If a signed report 
or statement is submitted, the report or statement shall include:
    (i) The reporting person's name, mailing address, occupation, and 
the name of his or her employer, if any;
    (ii) The identification (name and mailing address) of the person to 
whom the expenditure was made;
    (iii) The amount, date, and purpose of each expenditure;
    (iv) A statement that indicates whether such expenditure was in 
support of, or in opposition to a candidate, together with the 
candidate's name and office sought;
    (v) A verified certification under penalty of perjury as to whether 
such expenditure was made in cooperation, consultation, or concert 
with, or at the request or suggestion of a candidate, a candidate's 
authorized committee, or their agents, or a political party committee 
or its agents; and
    (vi) The identification of each person who made a contribution in 
excess of $200 to the person filing such report, which contribution was 
made for the purpose of furthering the reported independent 
expenditure.
    (2) Verification of independent expenditure statements and reports. 
Every person shall verify reports and statements of independent 
expenditures filed pursuant to the requirements of this section by one 
of the methods stated in paragraph (2)(i) or (ii) of this section. Any 
report or statement verified under either of these methods shall be 
treated for all purposes (including penalties for perjury) in the same 
manner as a document verified by signature.
    (i) For reports or statements filed on paper (e.g., by hand-
delivery, U.S. Mail, or facsimile machine), the person who made the 
independent expenditure shall certify, under penalty of perjury, the 
independence of the expenditure by handwritten signature immediately 
following the certification required by paragraph (e)(1)(v) of this 
section.
    (ii) For reports or statements filed by electronic mail, the person 
who made the independent expenditure shall certify, under penalty of 
perjury, the independence of the expenditure by typing the treasurer's 
name immediately following the certification required by paragraph 
(e)(1)(v) of this section.

    Dated: December 17, 2002.
David M. Mason,
Chairman, Federal Election Commission.
[FR Doc. 03-91 Filed 1-2-03; 8:45 am]
BILLING CODE 6715-01-P