[Federal Register Volume 68, Number 240 (Monday, December 15, 2003)]
[Rules and Regulations]
[Pages 69583-69596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30872]



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  Federal Register / Vol. 68, No. 240 / Monday, December 15, 2003 / 
Rules and Regulations  

[[Page 69583]]



FEDERAL ELECTION COMMISSION

11 CFR Parts 100, 106, 114, 9004, and 9034

[Notice 2003-24]


Travel on Behalf of Candidates and Political Committees

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 proper rates and timing for payment for 
travel on behalf of political committees and candidates on means of 
transportation that are not offered for commercial passenger service, 
including government conveyances. The final rules provide more 
comprehensive guidance than the previous regulations by establishing a 
single, uniform valuation scheme for campaign travel that does not 
depend on whether the service provider is a corporation, labor 
organization, individual, partnership, limited liability company or 
other entity. The final rules apply to all Federal candidates, 
including publicly funded presidential candidates as well as other 
individuals traveling on behalf of candidates, party committees, and 
other political committees where the travel is in connection with 
Federal elections. Further information is provided in the supplementary 
information that follows.

EFFECTIVE DATE: The effective date for the revisions to 11 CFR parts 
100, 106, 114 and 9034 is January 14, 2004. Further action on revisions 
to 11 CFR part 9004, including the publication of a document in the 
Federal Register announcing an effective date, will be taken after 
these regulations have been before Congress for 30 legislative days 
pursuant to 26 U.S.C. 9009(c).

FOR FURTHER INFORMATION CONTACT:  Mr. John C. Vergelli, Acting 
Assistant General Counsel, or Mr. Richard T. Ewell, Attorney, 999 E 
Street NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: The Commission is implementing several 
changes to its rules governing travel in connection with a Federal 
election. These final rules establish a simple, uniform payment scheme 
covering all Federal election travel on either government or private 
aircraft and other conveyances. The previous regulation at 11 CFR 
114.9(e) established the amount and timing for reimbursement by a 
candidate to a corporation or labor organization for the use of a 
private airplane or other means of transportation, but did not address 
means of travel furnished by individuals, partnerships, and other 
entities. The previous rules in section 114.9(e) also were not fully 
consistent with the Commission's treatment of similar travel by 
presidential and vice-presidential candidates using government-provided 
transportation under 11 CFR 9004.7 and 9034.7. Nor did the previous 
rules in 11 CFR 114.9(e) establish specific guidance for those 
traveling on behalf of party committees or other unauthorized 
committees.
    The Notice of Proposed Rulemaking (``NRPM'') on which these final 
rules are based was published in the Federal Register on August 21, 
2003. 68 FR 50,481 (August 21, 2003). The comment period was originally 
set to close on September 19, 2003, but the Commission extended the 
comment period until September 29, 2003. The Commission received nine 
comments from ten commenters,\1\ and held a public hearing on this and 
two other rulemakings on October 1, 2003. Seven witnesses testified 
during the hearing. Transcripts of the hearing are available at http://www.fec.gov/register.htm. Please note that, for purposes of this 
document, the terms ``commenter'' and ``comment'' apply to both written 
comments and oral testimony at the public hearing.
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    \1\ The Commission received written comments from: Perkins, Coie 
LLP; The Campaign Legal Center; FEC Watch; the Center for Responsive 
Politics; National Republican Senatorial Committee; National 
Republican Congressional Committee; National Business Aviation 
Association, Inc.; Nancy J. Lally; attorneys Lyn Utrecht, Eric 
Kleinfeld, Pat Fiori, and James Lamb of Ryan, Phillips, Utrecht & 
MacKinnon; and the Internal Revenue Service.
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    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. 
In addition, 26 U.S.C. 9009(c) requires that any rules or regulations 
prescribed by the Commission to carry out the provisions of the 
Presidential Election Campaign Fund Act be transmitted to the Speaker 
of the House of Representatives and the President of the Senate 30 
legislative days before they are finally promulgated. The final rules 
that follow were transmitted to Congress on December 10, 2003.

Explanation and Justification

I. 11 CFR 100.93 Travel by Airplane or Other Means of Transportation

A. Introduction

    The Commission's previous candidate travel rules in 11 CFR 114.9(e) 
focused only on means of travel owned or leased by corporations or 
labor organizations. In the NPRM, the Commission proposed broadening 
the rules to include airplanes and other means of travel owned by other 
persons. The NPRM proposed the addition of new section 11 CFR 100.93, 
based on the previous 11 CFR 114.9(e) with the organizational and 
substantive changes described in the NPRM and below. New Sec.  100.93 
is one of the enumerated exceptions to the definition of 
``contribution'' in 11 CFR part 100, subpart C, and identifies 
circumstances in which the use of a private means of transportation not 
owned or leased by candidates, their authorized committees, or other 
political committees would not be contributions.

B. 11 CFR 100.93(a) Scope and Definitions

1. Paragraph (a)(1) Means of Transportation Within the Scope of 11 CFR 
100.93
    (i) Paragraph (a)(1)(i)--Airplanes not licensed by the FAA to 
operate for compensation or hire under 14 CFR parts 121, 129, or 135.
    Previous 11 CFR 114.9(e)(1) focused on the use of airplanes owned 
by

[[Page 69584]]

corporations or labor organizations not ``licensed to offer commercial 
services for travel in connection with a Federal election.'' Thus, the 
previous rule distinguished between the use of airplanes owned or 
leased by a corporation or labor organization licensed to offer 
commercial services for travel, and airplanes owned by other 
corporations or labor organizations not normally engaged in commercial 
air passenger service. This distinction required an examination of the 
plane's ownership or lease structure to determine the proper 
reimbursement timing and amount.
    One district court found the wording ``licensed to offer commercial 
services for travel in connection with a Federal election'' to be 
ambiguous. See Federal Election Commission v. Arlen Specter '96, 150 F. 
Supp. 2d 797, 804 and 808 (E.D. Pa. 2001). In that case, a presidential 
candidate claimed that 11 CFR 114.9(e) applied to all travel on 
airplanes except airplanes owned or leased by a corporation or labor 
organization possessing a license for travel in connection with a 
Federal election. The final rules are intended, in part, to remedy this 
ambiguity. The Court noted that no such license existed and ultimately 
deferred to the Commission's longstanding position that 11 CFR 114.9(e) 
applied only to airplanes owned by corporations or labor organizations 
not engaged in the business of providing commercial air service 
generally, without regard to providing service specifically in 
connection with a Federal election. Id. at 812.
    In the NPRM, the Commission proposed the normal use of the airplane 
as the criterion for the applicability of section 100.93. Specifically, 
if the plane was normally operated for passenger service for a fee, 11 
CFR 100.52 would apply, and if it was not, then section 100.93 would 
apply. Under section 100.52, ``the provision of any goods or services 
without charge or at a charge that is less than the usual and normal 
charge for such goods or services'' is an ``in-kind contribution.'' 11 
CFR 100.52(d). Thus, a candidate or other campaign traveler receives an 
in-kind contribution when he or she is provided commercial 
transportation without charge or at a charge that is less than the 
usual and normal charge for that transportation.
    The Commission received four comments addressing the scope of 
section 100.93. Three of the commenters supported the elimination of 11 
CFR 114.9(e). Two commenters expressed support for the proposed 
distinction based on whether the airplane is ``normally operated for 
commercial passenger service.'' A different commenter, however, 
recommended that the rule focus on whether the person providing the 
service normally provides the service as a commercial service, rather 
than whether a particular airplane is normally operated for commercial 
passenger service. This commenter asserted that ``when a commercial 
provider of transportation services leases an airplane specifically for 
the purpose of providing services to a campaign, the Commission should 
treat the commercial provider the same as if it owned the airplane. The 
fact that the airplane had never previously been used as a commercial 
aircraft would be irrelevant.''
    Likewise, another commenter urged the Commission to ``focus on the 
provider of the air transportation and the primary business of that 
provider rather than the `normal use' of a particular aircraft.'' This 
commenter asserted that it would be too difficult to determine the 
``normal use'' of an aircraft in light of the varied ownership 
structures and shared users and uses of a single plane. The commenter 
argued that a rule focusing on the ``normal use'' of an aircraft would 
require significant clarification, including an explanation of whether 
the ``normal use'' pertained only to use by the usual operator or 
whether it would also apply to use by other persons leasing the 
aircraft for particular flights or for a longer period of time. This 
commenter recommended basing the distinction instead on the ``FAA's 
long established primary business test.'' Under that test, the 
commenter stated, any aircraft offered to a candidate or other campaign 
traveler would be covered by 11 CFR 100.93 so long as air 
transportation is not the primary business of the provider. This 
approach is similar to an alternative proposed in the NPRM, which would 
delineate the airplanes covered by this new section based on whether 
the service provider is a ``commercial vendor,'' as defined in 11 CFR 
116.1(c), of air transportation services.
    These comments raise a number of concerns about the difficulties 
inherent in basing a rule on ``normal use'' of an airplane. The 
approaches suggested by the commenters would be, to the extent they 
require a determination of the ownership structure or consideration of 
the prior use of the airplane, subject to manipulation and would 
perpetuate the difficulties presented by the previous rule. The 
Commission rejects the ``commercial vendor'' standard and the 
commenter's suggested ``primary business test,'' because each would 
require analysis of the service provider's structure and business 
practices. One impetus for this rulemaking is to avoid an ownership-
dependent analysis in establishing the proper valuation of election-
related travel where the value of that travel is not readily 
ascertainable from a normal and usual charge. The purpose of new Sec.  
100.93 is to provide clear guidance to campaign travelers, not to 
describe the business practices of service providers.
    The Commission concludes that the legal operating authority for the 
airplane, rather than the ownership or leasing arrangement, is the 
relevant determinant because it indicates the applicability of 11 CFR 
100.52(d) or new Sec.  100.93. The service provider's business practice 
is relevant only to the extent that it discloses the operating 
authority of the airplane. Because the commenters are correct that a 
determination of the ``normal use'' of an airplane could be complex, 
the final rule relies on the classifications already established by the 
Federal Aviation Administration (``FAA'').
    The new rules in Sec.  100.93 apply to all airplanes not licensed 
by the FAA to operate for compensation or hire under 14 CFR parts 121, 
129, or 135.\2\ 11 CFR 100.93(a)(1). This phrase eliminates any 
potential ambiguity in the current language at 11 CFR 114.9(e) and 
provides a readily discernible bright line based on existing FAA 
regulations. Paragraph (a) further clarifies that new section 100.93 
also applies to airplanes operated by a Federal, State or local 
government in the United States.
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    \2\ The FAA requires airplane operators who hold their service 
out to the public as willing to transport persons or property to be 
certificated under 14 CFR part 119 to conduct operations in 
accordance with 14 CFR part 121 or part 135, as applicable, 
depending primarily on the size of the aircraft used. Operators must 
notify the FAA of the specific aircraft they intend on using in the 
part 121 or 135 operation. Foreign aircraft held out to the public 
within the United States must comply with the requirements of 14 CFR 
part 129. Operators conducting operations for compensation or hire 
that are not common carriage, or operators that are private carriage 
in large aircraft must be certificated by the FAA to operate under 
part 125. See 14 CFR 125.1(a) (applies to aircraft with a seating 
capacity of 20 or more persons, but only where common carriage is 
not involved). Operators conducting flights in small private 
aircraft not for compensation or hire are regulated by the FAA under 
14 CFR part 91. Although aircraft operating under 14 CFR part 91 
certification are not usually permitted to accept any form of 
payment or reimbursement from passengers, a special FAA exception 
permits Federal candidates to reimburse the owners of such aircraft 
for the use of planes pursuant to the Commission's regulations. See 
14 CFR 91.321. Aircraft operating under 14 CFR part 125 
certification are similarly prohibited from operating as common 
carriers, but there is no similar general prohibition on the 
acceptance of payment from passengers to warrant an identical 
exception.
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    The NPRM indicated that the proposed regulations in 11 CFR 100.93

[[Page 69585]]

were intended to apply only to airplanes not authorized by the FAA to 
conduct operations in air transportation as a common carrier, while the 
current regulations at 11 CFR 100.52 would apply to all airplanes 
operated pursuant to other certifications that do permit carriage of 
passengers for compensation. The final rules in Sec.  100.93(a)(1)(i) 
differ from the proposed rules by including a specific reference to the 
operating authority for the planes. Most operators offering passenger 
service for compensation or hire, such as air carriers or commercial 
operators, must receive special certification under 14 CFR parts 121, 
129, or 135 in order to hold out the use of the airplane to the general 
public. A usual and normal charge will ordinarily be apparent for the 
use of these airplanes, so there is no need to apply new Sec.  100.93 
to the use of these airplanes. Rather, section 100.93 applies to 
private jets and other airplanes that are not normally held out to the 
public, such as airplanes operated exclusively under 14 CFR parts 91 or 
125.\3\ The pilot of an airplane is usually aware of the operating 
authority in order to comply with the safety requirements and other 
duties required for that each different type of operating 
certification. The status of the airplane can be quickly determined by 
reference to the operations specifications for that airplane, which 
will identify the rule part that governs the operator.
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    \3\ Aircraft operating pursuant to 14 CFR parts 91 or 125 are 
not permitted to operate as common carriers.
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    New section 100.93 applies to airplanes owned by any ``person,'' as 
defined at 11 CFR 100.10, as well as airplanes owned by the Federal 
government or a State or local government. This is intended to remedy 
whatever confusion might have previously resulted from the fact that 
previous 11 CFR 114.9(e) covered only corporate and labor organization 
aircraft.
    (ii) Paragraph (a)(1)(ii)--Other means of transportation.
    Because most conveyances other than airplanes are not operated 
subject to FAA authority, new Sec.  100.93 applies to ``other means of 
transportation not operated for commercial passenger service.'' 11 CFR 
100.93(a)(1). The Commission believes that a determination of the 
normal use of a car, bus, or similar conveyances, while requiring some 
examination of its normal operation, does not raise the unique 
complexities presented by the ownership structures, expenses, and uses 
of airplanes. Without any external regulatory structure to parallel the 
FAA regulations of airplanes, the Commission concludes that this 
approach provides the most accurate means of identifying when the usual 
and normal charge for a conveyance can be readily ascertained for 
compliance with 11 CFR 100.52(d), and when it cannot.
    (iii) Paragraph (a)(1)(iii)--Government conveyances.
    Because the scope of the final rules is tied to FAA certification, 
the Commission is adding new paragraph (a)(1)(iii) to clarify that 
election-related travel aboard a Federal, State, or local government 
conveyance is within the scope of new 11 CFR 100.93.
2. Paragraph (a)(2) Means of Transportation Outside the Scope of 11 CFR 
100.93
    New paragraph (a)(2) of section 100.93 provides that 11 CFR 
100.52(a) and (d) continue to apply to travel by means of 
transportation operated for commercial passenger service. However, for 
campaign travelers using means of transportation not operated for 
commercial passenger service where the normal and usual charge may not 
be obvious, as opposed to commercial airlines or charter or taxi 
services normally offered for a fee, Sec.  100.93 establishes a 
substitute for the normal and usual rate for that means of travel.
3. Paragraph (a)(3) Definitions
    (i) Paragraph (a)(3)(i)--Campaign traveler.
    Paragraph (a)(3) defines several terms used in new section 100.93. 
In the NPRM, the Commission proposed defining the term ``campaign 
traveler'' to provide a succinct term covering the candidate, 
candidate's agent, or other individual traveling on behalf of a 
candidate or a candidate's authorized committee. One commenter 
suggested that 11 CFR 100.93 be expanded to include payment for travel 
by persons traveling on behalf of political parties and other political 
committees, essentially inviting the Commission to expand the 
definition of ``campaign traveler'' to these other travelers. The 
Commission is implementing the suggestion to provide guidance to these 
other travelers who, if not permitted to rely on this valuation of 
travel as set forth in this new section, would be left without specific 
guidance as to the proper rate of reimbursement. By establishing a 
single rate for travel reimbursement, the new rules will promote 
greater uniformity among all individuals traveling in connection with a 
Federal election on behalf of a political committee.
    The final rules at 11 CFR 100.93(a)(3)(i)(A) define a new term, 
``campaign traveler,'' to include any individual traveling in 
connection with a Federal election on behalf of a candidate, a 
political party committee, or any other political committee. In 
addition, because the news media sometimes accompany Federal candidates 
on government conveyances and other means of transportation at the 
candidate's discretion, the final rules address the proper amount of 
payment for their travel. Section 100.93(a)(3)(i)(B) specifies that 
members of the news media are included in the definition of ``campaign 
traveler'' when traveling with a candidate. This definition applies 
whether or not such candidates are running for President or Vice 
President or are receiving public funding. It is consistent with the 
provisions in former 11 CFR 9004.7(b)(5)(i)(C) and 9034.7(b)(5)(i)(C) 
that required the inclusion of members of the media in calculating the 
cost of comparable transportation. Once a service provider makes an 
airplane or other conveyance available for the use of a candidate and 
the accompanying news media, the service provider must be reimbursed 
for the value of that travel in order to avoid a contribution from the 
service provider to the candidate's campaign. Therefore, either the 
candidate's authorized committee, other political committee responsible 
for payment of travel expenses for the candidate, or the media 
travelers, must pay the travel costs, at the same rate, for the members 
of the media who accompany the candidate(s). See 11 CFR 100.93(b), 
discussed below. The news media may elect to pay the service provider 
directly, or to reimburse the political committee in accordance with 
this section and 11 CFR 9004.6 and 9034.6.
    (ii) Paragraph (a)(3)(ii)--Service provider.
    Given the complex ownership and leasing arrangements often 
associated with airplanes and other means of transportation, a person 
providing transportation to a campaign traveler may be either the owner 
of the conveyance, or may be a different person who is leasing the 
conveyance from the owner and making it available for the campaign 
traveler's use. The NPRM proposed to define ``service provider'' as the 
owner or lessee of an airplane or other conveyance who uses the 
airplane or other conveyance to provide transportation to a campaign 
traveler. One commenter expressed concern that this definition would 
not allow sufficient flexibility for aircraft owners and lessees to 
provide

[[Page 69586]]

alternative transportation when their aircraft becomes unavailable and 
they are forced to charter different aircraft in order to fulfill their 
transportation commitments. Presumably, the commenter is concerned that 
in such instances the service provider would be the owner of the 
substitute aircraft. A different commenter recommended that the 
Commission address similar situations in which the owner or lessor of 
an airplane makes the airplane available to a major client, independent 
contractor, or other person outside the corporation or labor 
organization. This commenter urged that in such situations the service 
provider should be the ``person who has been given the right to use the 
aircraft,'' rather than the owner or lessor. Likewise, one commenter 
suggested that the Commission specifically address situations where 
multiple persons or entities share access to an airplane, such as 
through a joint ownership or time-sharing agreement. This commenter 
stated that in such instances the service provider should be the person 
who makes the airplane available to the candidate
    The final rules at 11 CFR 100.93(a)(3)(ii) clarify that the 
``service provider'' is the person making the airplane or other 
conveyance available to the campaign traveler or otherwise providing 
the transportation to the campaign traveler. Thus, a service provider 
may be the owner, a person leasing the airplane or other conveyance 
from the owner, or another person with a legal right to offer the use 
of the airplane or other conveyance to the campaign traveler.
    (iii) Paragraph (a)(3)(iii)--Unreimbursed value.
    The proposed rules at paragraph (a)(2) sought to define the term 
``unreimbursed value'' as the portion of the value provided to the 
campaign traveler, calculated according to the rules in this section, 
that is not reimbursed by the candidate's authorized committee. The 
proposed definition specified that a late payment would not qualify as 
a reimbursement under this section, meaning that the value of the 
service provided would be an in-kind contribution to the candidate. By 
contrast, a service provider would not make an in-kind contribution if 
the candidate's authorized committee provides payment within the time 
specified in paragraphs (c) or (d).
    One commenter argued that the rule would unfairly penalize 
``absentminded campaign schedulers or late reimbursers'' by treating 
late payments as contributions, suggesting that the rule as proposed in 
the NPRM would remove the incentive for sua sponte payments outside the 
permitted time frames. The timing requirements in 11 CFR 100.93 are 
integral components of the regulatory scheme. The definition of 
``unreimbursed value'' in the final rule, which is located in paragraph 
(a)(3)(iii), is therefore substantially the same as proposed in the 
NPRM. The Commission does not agree that the definition of 
``unreimbursed value'' will discourage sua sponte payments after the 
deadlines because it does not believe those acting in good faith would 
be deterred from taking corrective, mitigating actions.

C. 11 CFR 100.93(b) General Rule

    Section 100.93(b) sets forth the general rule for when the 
providing of travel does not constitute a contribution to a candidate 
or political committee, as well as when and to what extent the 
unreimbursed value of such travel is an in-kind contribution. Under 
paragraph (b)(1), as proposed in the NPRM, a candidate's authorized 
committee would not receive or accept a contribution if the authorized 
committee pays the service provider the full value of the 
transportation within the specified time. One commenter stated that the 
proposed rule was ``sound and consistent'' with the Act and 
Commission's treatment of in-kind contributions.
    The Commission is implementing the final rule as proposed in the 
NPRM, with additional clarifications described below and the conforming 
changes needed to account for payment by members of the news media and 
for persons traveling on behalf of political party committees and other 
political committees. Paragraph (b)(1) sets out the rule for most 
campaign travelers, generally requiring that the candidate's authorized 
committee, in order to avoid receiving or accepting a contribution, pay 
the service provider for campaign travelers traveling on behalf of that 
candidate. Likewise, other political committees (i.e., other than 
authorized committees) must pay the service provider for other campaign 
travelers who are traveling on behalf of such committees. For example, 
if a Federal candidate attending a fundraiser for her own campaign 
flies on the same private airplane with a government official traveling 
to appear on behalf of a non-connected political committee in 
connection with a Federal election, the candidate's authorized 
committee would pay for the candidate's travel and the non-connected 
political committee would pay for the government official's travel.
    While the authorized committee or other political committee will 
generally make the reimbursement payment, paragraph (b)(1)(ii) permits 
a campaign traveler to pay the service provider directly for his or her 
own travel. However, such payment constitutes an in-kind contribution 
by the campaign traveler to the candidate or political committee to the 
extent that it does not qualify for the transportation expense 
exception set forth in 11 CFR 100.79.\4\ In the example above, an 
individual working for a Federal candidate could choose to pay up to 
$1,000 from her own pocket for campaign travel without the payment 
constituting an in-kind contribution, assuming that she had not already 
made other payments for travel with respect to that election.
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    \4\ 11 CFR 100.79(a) permits an individual traveling on behalf 
of any candidate or political party committee to incur up to $1,000 
in transportation expenses with respect to a single election, and up 
to $2,000 on behalf of all political committees of each political 
party within a calendar year, without reimbursement and without 
making a contribution to a candidate or political party committee. 
Under 11 CFR 100.79(b), volunteers may use personal funds for usual 
and normal subsistence expenses incidental to volunteer activity. A 
substantively identical exception to the definition of 
``expenditure'' is provided at 11 CFR 100.139.
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    Paragraph (b)(1)(iii) similarly specifies that a member of the news 
media traveling with a candidate may choose to reimburse the service 
provider directly at the rate not less than the amount set forth in 
paragraphs (c) or (d) of section 100.93. If a member of the news media 
elects to have the candidate's authorized committee pay for the media's 
travel rather than paying the service provider directly, he or she may 
do so and the candidate's authorized committee is permitted to seek 
reimbursement from the media. Ultimately it is the candidate's 
responsibility to ensure that the service provider is reimbursed for 
the value of the transportation provided to all persons traveling with 
the candidate.
    In light of the fact that the previous rules at 11 CFR 114.9(e) 
were limited to airplanes owned by corporations or labor organizations, 
payment was required because the unpaid use of such airplanes is a 
contribution in violation of 2 U.S.C. 441b. In contrast, the new rule 
also encompasses airplanes owned or leased by individuals, 
partnerships, and certain other persons who are permitted to make in-
kind contributions to candidates up to the amounts set forth in 2 
U.S.C. 441a. Thus, under the new rules, a candidate or political 
committee may elect to receive an in-kind contribution from the service 
provider rather than reimbursing that

[[Page 69587]]

service provider, so long as the service provider is permitted to make 
an in-kind contribution and the amount of the contribution does not 
exceed the limitations of the Act. New 11 CFR 100.93(b)(2) addresses 
this situation by stating when a service provider makes an in-kind 
contribution. A candidate's authorized committee or other political 
committee paying for the travel must comply with the payment conditions 
in 11 CFR 100.93 to avoid receiving a contribution in the amount of the 
unreimbursed value. If these conditions are not met, then the provision 
of the value of the travel would be a prohibited in-kind contribution 
if the service provider is a corporation or labor organization, or an 
excessive in-kind contribution if the value of the service would, when 
added to other contributions to the same candidate or political 
committee by the service provider, exceed that service provider's 
contribution limit. See 11 CFR 100.93(b)(2). The value of the in-kind 
contribution is determined in the same manner as the amount of the 
reimbursement would normally be determined under paragraphs (c), (d) or 
(e) of new section 100.93.
    The Commission recognizes that this approach may, in some cases, 
require the same type of ownership analysis that is discussed above. 
This analysis, however, is not a necessary step in every circumstance 
because it must be employed only where the service's provider elects 
not to seek full or partial reimbursement from the political committee, 
or when the political committee fails to pay the service provider. The 
Commission sought comments on whether reimbursement should always be 
required, regardless of the ownership, or whether the possibility of an 
in-kind contribution from a permissible source should be addressed in 
some other fashion. One commenter stated that it is not important for 
the Commission to preserve the option of making an in-kind contribution 
because the value of the transportation will often exceed the 
contribution limits. While the commenter makes a valid point, there are 
still some circumstances in which an in-kind contribution is otherwise 
permissible under the Act. The Commission is therefore preserving the 
option of an in-kind contribution as described above.

D. 11 CFR 100.93(c) Travel by Airplane

    Under the previous rules at 11 CFR 114.9(e)(1), when a candidate or 
other campaign passenger used an airplane owned by corporation or labor 
organization not in the business of providing commercial air travel, 
the rate of reimbursement was either the first-class airfare or the 
normal charter rate, depending on whether the destination city was 
served by regularly scheduled commercial air service. The charter rate, 
which in many cases is considerably higher than first-class airfare to 
a city in the same area, better represents the actual cost that a 
political committee would incur, but for the use of the corporate or 
labor organization airplane, to reach a particular destination by air 
when that destination is not served by commercial air service. 
Nevertheless, the NPRM recognized that candidates who campaign in major 
metropolitan areas that have regularly scheduled commercial airline 
service will generally be able to use a private plane and reimburse 
only the equivalent of a first-class airfare, whereas candidates who 
campaign in more rural areas that have little, if any, commercial air 
service would be required to reimburse the equivalent charter rate. 
Consequently, the NPRM expressed concern that the reimbursement scheme 
in 11 CFR 114.9(e)(1) may have been unnecessarily complex and unfairly 
affected campaigning in rural areas.
1. Three Alternatives in NPRM
    To address these concerns, the NPRM sought comments on three 
alternative reimbursement rules in proposed 11 CFR 100.93(c), as well 
as any other appropriate payment systems. The Commission also sought 
comments on whether and how it should further simplify the rules and 
address other inequities, if any, arising from the previous application 
of 11 CFR 114.9(e) or the changes proposed for section 100.93.
    Alternative A proposed setting the payment rate at the amount of 
the lowest unrestricted and non-discounted first-class airfare to the 
closest airport that has such service. For an airport served by 
regularly scheduled coach airline service but not regularly scheduled 
first-class airline service, Alternative A proposed setting the payment 
at the lowest unrestricted and non-discounted commercial coach rate to 
that destination.
    Alternative B proposed two different payment rates, following 
closely the travel valuation rules set forth in the ethics rules for 
the House of Representatives and the United States Senate.\5\ The first 
rate, the normal cost of first-class airfare between the cities, would 
have applied to previously scheduled flights, as opposed to flights 
specifically scheduled for a campaign traveler, between cities with 
regularly scheduled air service. Like Alternative A, Alternative B 
would also have permitted payment at the unrestricted and non-
discounted commercial coach rate where coach service is regularly 
scheduled on the same route in cases where only coach service is 
available. The second rate under Alternative B, the normal charter rate 
for a similar airplane, would have applied to flights specifically 
scheduled for a campaign traveler and flights where the origin or 
destination city is not served by regularly scheduled commercial air 
service.
---------------------------------------------------------------------------

    \5\ See Select Committee on Ethics, U.S. Senate, Senate Ethics 
Manual, S. Pub. No. 108-1 (2003), ``Private Air Travel'' at p. 60; 
Committee on Standards of Official Conduct, U.S. House of 
Representatives, Rules of the U.S House of Representatives on Gifts 
and Travel (2001), ``Use of Private Aircraft for Travel'' available 
at http://www.house.gov/ethics/Gifts_and_Travel_Chapter.htm#_Toc476623633.
---------------------------------------------------------------------------

    Alternative C would have established a uniform rule by requiring 
the payment amount to be the normal and usual cost of chartering a 
plane of sufficient size to accommodate all campaign travelers plus the 
news media and security personnel where applicable. This payment rate 
would depend on the rate for chartering the entire plane, rather than a 
per-passenger cost, and would not vary based on whether the destination 
airport is served by regularly scheduled commercial air service of any 
particular class.
2. Comments on Proposed Alternatives A, B, and C
    The Commission received eight comments regarding proposed 
alternatives A, B, and C, reflecting a lack of consensus. One commenter 
submitted general recommendations encouraging the Commission to adopt a 
``clear, uniform format.''
    Two of the comments criticized the previous rules at 11 CFR 
114.9(e) for undervaluing the travel service provided by permitting, in 
some instances, candidates to pay for charter services at the lower 
first-class airfare rates. This undervaluation of travel services, 
these commenters asserted, constitutes a prohibited contribution where 
the service is provided by a corporation or labor organization. These 
commenters urged the Commission to adopt Alternative C as the most 
accurate reflection of the actual cost of the travel service provided, 
as well as the easiest of the alternatives to administer. These 
commenters opposed Alternative A as permitting an even greater amount 
of in-kind contributions than allowed under the previous 11 CFR 
114.9(e). Furthermore, they stated Alternative B

[[Page 69588]]

would be preferable to Alternative A because it would mandate the 
charter rate in some cases. These commenters, however, were skeptical 
that a standard dependent upon whether a flight was ``scheduled 
specifically for the use of a campaign traveler'' could be enforced 
effectively. A different commenter, however, urged the Commission to 
adopt Alternative B as an effective compromise between the approaches 
in A and C.
    In contrast, the other five commenters specifically advocated the 
implementation of Alternative A. These commenters stressed the 
simplicity of the rate structure and some expressed support for the 
reasons in the NPRM for Alternative A. 68 FR at 50,484. One commenter 
stated that Alternative A would eliminate an ``arbitrary focus on the 
destination city'' and the need to refer to the FAA's classification of 
whether an airport offers ``commercial air service.'' The same 
commenter criticized the previous rule at 11 CFR 114.9(e) for failing 
to address geographic realities and benefiting ``well-entrenched 
incumbents to the detriment of candidates running in either an open 
seat or challenging a well-entrenched incumbent'' because the higher 
cost of travel would impair the ability of challengers to attract a 
``high ranking leader'' and ``other luminaries'' to events in their 
State or district. Three of these five commenters criticized 
Alternatives B and C as furthering the inequities of the previous rule 
and causing campaign travel to be more complicated and expensive. 
Several commenters specifically advocated the replacement of the 
advance payment requirement with the seven-day post-travel repayment 
period.
3. Selection of a Combination of First-Class Airfare, Coach Airfare, 
and Charter Rates in the Final Rules
    After considering the written comments and hearing testimony, the 
Commission concludes that a combination of first-class airfare, coach 
airfare, and charter rates presents the most workable and accurate 
approach to the valuation of campaign travel. Accordingly, new 11 CFR 
100.93(c) reflects the basic structure of the previous 11 CFR 
114.9(e)(1), with the addition of several clarifications described 
below.
    The new rules continue to focus on travel between cities, rather 
than between particular airports, to account for the various geographic 
considerations discussed in Advisory Opinion (``AO'') 1999-13,\6\ which 
remains in effect. One commenter recommended a supplementary approach 
incorporating the standard metropolitan statistical areas (``SMSAs''), 
a unit of population measurement administered by the Office of 
Management and Budget. While the Commission views the SMSA approach as 
overly complicated and unnecessary, it offers the following explanation 
of the new valuation rule for clarification.
---------------------------------------------------------------------------

    \6\ In AO 1999-13, the Commission recognized that particular 
destination cities might be served by several airports in the 
surrounding region. In that advisory opinion, the Commission 
determined that an airport need not be within the corporate limits 
of a city in order for that city to be considered ``served by 
regularly scheduled commercial air service.'' The Commission further 
agreed that it was reasonable for the requestor to determine whether 
a city is served by a particular airport through reference to 
published sources such as an FAA directory or a corporate directory 
regarded at the time as the charter industry's standard reference 
for airports. To the extent that the advisory opinion contemplates 
advance payment for air travel and does not recognize that 
commercial coach rates may be appropriate in other situations, the 
opinion is superseded.
---------------------------------------------------------------------------

    New 11 CFR 100.93(c) provides three valuation methods that apply in 
different situations: (1) The lowest unrestricted and non-discounted 
first-class airfare available for the dates traveled or within seven 
calendar days thereof; (2) the lowest unrestricted and non-discounted 
coach airfare available for the dates traveled or within seven calendar 
days thereof; or (3) the charter rate for a comparable commercial 
airplane of sufficient size to accommodate all of the campaign 
travelers, including members of the news media, and security personnel, 
if applicable.
    (i) Paragraph (c)(1)--Travel between cities served by regularly 
scheduled first-class commercial airline service.
    New 11 CFR 100.93(c)(1) requires payment of at least the lowest 
unrestricted and non-discounted first-class rate for travel between two 
cities with regularly scheduled first-class airline service. As 
qualified by new paragraph 100.93(f), discussed below, the rate must be 
available to the general public for the dates traveled or within seven 
calendar days thereof. For travel between two cities that each have 
regularly scheduled first-class airline service, but no regularly 
scheduled direct flight between the two cities, the required rate is 
the lowest unrestricted and non-discounted first-class rate for an 
indirect flight with the same departure city and final destination 
city.
    (ii) Paragraph (c)(2)--Travel between cities served by regularly 
scheduled coach, but not first-class, commercial airline service.
    The final rules also provide a limited allowance for commercial 
coach service rates to reflect airline industry trends. Paragraph 
(c)(2) permits the use of the lower coach rate for travel between 
cities served by regularly scheduled coach airline service but not 
regularly scheduled first-class airline service. 11 CFR 100.93(c)(2). 
This rate is based on the previous rules governing publicly-funded 
presidential candidates' payments for the use of government aircraft. 
See former 11 CFR 9004.7(b)(5)(i)(B) and former 9034.7(b)(5)(i)(B). 
Paragraph (c)(2) also permits the use of the coach rate where the 
travel is between one city served by coach commercial airline service, 
but not first-class commercial airline service, and a second city 
served by coach commercial airline service, regardless of whether or 
not the second city is also served by first-class commercial airline 
service.
    (iii) Paragraph (c)(3)--Travel to or from a city not served by 
regularly scheduled commercial airline service.
    Paragraph (c)(3), like paragraph (e)(1) of current section 114.9, 
requires payment at the normal and usual charter rate for all other 
flights except certain flights on government planes (see discussion of 
paragraph (e), below.) Thus, the charter rate must be used for travel 
between two cities not served by regularly scheduled first-class or 
coach airline service, or between such a city and a different city with 
regularly scheduled first-class or coach commercial airline service. 
The charter rate must be calculated at the rate for a charter flight 
between the same departure and destination cities used for the actual 
travel. 11 CFR 100.93(c)(3). This rate must also be equivalent to the 
publicly available rate for a comparable commercial airplane capable of 
accommodating the same number of campaign travelers, including members 
of the news media, plus the Secret Service and other security personnel 
accompanying a candidate. Id. This rate is consistent with the previous 
rules governing publicly funded presidential candidates' payments for 
the use of government aircraft. See 11 CFR 9004.7(b)(5)(i)(B) and 
9034.7(b)(5)(i)(B). To the extent that the candidate in Advisory 
Opinion 1984-48 was not required to include security personnel or news 
media in the calculation of the sufficient size of the comparable 
aircraft, that advisory opinion is hereby superseded to promote 
uniformity in the treatment of all candidate travel.
    A ``comparable commercial airplane'' means an airplane of similar 
make and model as the airplane that actually makes the trip, and with 
the same

[[Page 69589]]

amenities as that airplane. For example, in Advisory Opinion 1984-48, 
the Commission interpreted a comparable airplane as being ``of the same 
type (e.g., jet aircraft versus prop plane) and services offered (e.g., 
plane with dining service or lavatory versus one without)'' as the 
plane actually used. The Commission further explained that when a 
candidate used a twin engine prop jet, a single engine, prop aircraft 
would not be a comparable aircraft. The term ``comparable commercial 
airplane'' is intended to require these distinctions as well as other 
differences such as when a plane is chartered with a crew or without, 
or with or without fuel.
4. Multi-Stop Travel
    One commenter asked the Commission to address multi-stop travel. In 
response, the Commission is adding the following clarification to 11 
CFR 100.93(c) in the final rule. For the purposes of Sec.  100.93 only, 
the payment for campaign travel must be calculated for each leg of 
travel. For example: a candidate traveling entirely for the purposes of 
her own election (and not for a mixed-purpose trip addressed in 11 CFR 
106.3) departs from a city in Maryland without any regularly scheduled 
commercial air service and flies to a city in Illinois that is also 
without any commercial airline service. After several hours at a 
campaign rally in the Illinois city, the candidate travels from 
Illinois to New York City for a campaign fundraising event before 
returning to Washington, DC. Because there is first class commercial 
airline service between New York City and Washington, DC, the proper 
payment for the entire trip would be the amount of the lowest 
unrestricted and non-discounted first-class airfare from one of the 
airports serving New York City to one of the airports serving 
Washington, DC, plus the equivalent charter rate for the flights from 
the city in Maryland to the city in Illinois, and from Illinois to New 
York City.
    In addition, the Commission is adding language to paragraph (c) in 
the final rule to clarify payment for travel where several candidates 
and their entourages travel together aboard the same airplane not 
operated for commercial passenger service. In such cases, each campaign 
committee is expected to pay the same first-class rate for each of its 
campaign travelers or to pay its pro-rata share of the equivalent rate 
for chartering a comparable airplane of sufficient size to accommodate 
all campaign travelers, including members of the news media traveling 
with its candidate, and security personnel, if applicable. One 
candidate's committee is not permitted to pay more or less than the 
other campaign committees with respect to each traveler on the same 
flight because the value each campaign traveler derives from the 
provision of the travel service is identical. But for the provision of 
the private airplane, it would presumably have been necessary for each 
campaign traveler to pay for a first-class or coach ticket or arrange 
for a charter flight to reach the same location on the same date.
5. Advance Payment Not Required
    The NPRM sought comment on whether campaign travelers should be 
required to pay the service provider in advance for the value of 
travel, as they were required to do under previous 11 CFR 114.9(e)(1). 
Alternatives A and B proposed eliminating the previous advance payment 
requirement in 11 CFR 114.9(e)(1). In its place, there would be a fixed 
period of seven calendar days for payment after travel has begun. Under 
Alternative C, the Commission would have continued to require advance 
payment for the use of all airplanes not normally used for commercial 
passenger service.
    The Commission recognized that the removal of the advance payment 
rule could be perceived as a departure from the previous approach under 
which corporations are prohibited from extending credit outside the 
ordinary course of their business. See 11 CFR part 116. The Commission 
sought comments on the potential consequences of the rule as proposed, 
particularly with respect to the use of an airplane owned by a 
corporation or labor organization where payment does not occur in 
advance. Several commenters argued for the inclusion of the seven-day 
rule as a necessary accommodation to the unavoidable constraints of 
campaign scheduling and last-minute changes in travel plans. One 
commenter insisted that the advance-payment requirement in the previous 
rule should be retained, asserting a potential inconsistency with 11 
CFR part 116 and arguing that it would be more difficult for the 
campaign traveler to calculate the necessary amounts as much as the 
seven days after the departure date.
    The Commission disagrees with this latter commenter and is 
permitting the seven-day post-travel window for payment because of the 
unique nature of campaign travel cited by the other commenters. The 
Commission also notes that the previous rule at 11 CFR 114.9(e)(2) had 
permitted payment for travel other than by airplane within a 
``commercially reasonable time,'' thereby allowing for some post-travel 
payments. Other provisions in 11 CFR 114.9 also contemplate after-the-
fact reimbursement for certain goods or services provided by 
corporations. For example, certain uses of a corporation's or labor 
organization's facilities under section 114.9(a) through (d) are 
permissible if reimbursed within a commercially reasonable time.
    New 11 CFR 100.93(c) does not require a campaign traveler to pay in 
advance of travel, but it does establish a strict deadline of payment 
within seven calendar days of the departure of the flight. For multi-
stop travel over a period of more than one day, a campaign traveler may 
elect to pay for separate flights at different times by calculating the 
separate seven-day periods for each flight departing on a different 
day.
    The seven-day airplane travel repayment period permitted in 
paragraph (c) of section 100.93 is shorter than the thirty/sixty day 
period used for other forms of transportation (see discussion of 11 CFR 
100.93(d), below) because the political committee has complete control 
over the timing of the reimbursement as all the necessary passenger 
information and costs will be determinable at the time the airplane 
departs. Thus, it will be possible for the candidate's authorized 
committee, or another political committee, to calculate the proper 
reimbursement rate for airplane travel without a billing or invoice 
process to cause delay. In addition, each leg of travel by airplane is 
very unlikely to last more than one day and can usually be calculated 
separately, whereas the charter or rental rate for travel on a bus tour 
or by other means of travel may be based on the total miles traveled or 
otherwise calculable only at the completion of travel, which may not 
conclude until several days or weeks after it begins.
6. ``Deadhead Miles'' Not Considered Separately
    The NPRM requested comment regarding how, if at all, to account for 
the expenses associated with the positioning of the airplane, known as 
``deadhead miles.'' Two commenters asserted that these costs are 
normally incorporated into the rates offered for commercial service, so 
there is no need for the Commission to address them separately. One of 
these commenters argued that those costs are beyond the control of the 
traveler. The Commission generally agrees with this reasoning and is 
not requiring any additional payment for these costs when campaign 
travelers use private airplanes. To promote uniformity between the 
treatment of publicly funded candidates and all

[[Page 69590]]

other candidates, the Commission is removing 11 CFR 9004.7(b)(5)(ii) 
and 9034.7(b)(5)(ii).

E. 11 CFR 100.93(d) Other Means of Transportation

    For other means of travel, such as limousines, other automobiles, 
trains, helicopters, and buses, a political committee must pay the 
service provider an amount equivalent to the normal and usual fare or 
rental charge for a comparable commercial conveyance that is capable of 
accommodating the same number of campaign travelers, including members 
of the news media, plus security personnel, if applicable. 11 CFR 
100.93(d). This rate is consistent with the previous rules governing 
publicly funded presidential candidates' payments for the use of 
government conveyances other than airplanes. See 11 CFR 
9004.7(b)(5)(iii) and 9034.7(b)(5)(iii). A ``comparable commercial 
conveyance'' is one that approximates the same class and type of the 
conveyance actually used, with similar features and amenities. For 
example, when a campaign traveler uses a private bus, a ``comparable 
commercial conveyance'' would be a similar type of motor vehicle with 
similar amenities and features. As with payment for travel by airplane, 
the rate must be available to the general public for the dates traveled 
or within seven calendar days thereof. See new 11 CFR 100.93(f).
    Just as the Commission is no longer requiring advance payment for 
travel by airplane, the Commission is also setting a post-travel period 
of time for payment for travel by means other than by airplane: thirty 
calendar days from the receipt of the invoice, but no more than sixty 
calendar days following the date the travel commenced. See 11 CFR 
100.93(d). One commenter urged the Commission to fix the sixty-day time 
period from the date the travel ends, rather than when the travel 
commenced, to accommodate longer trips, invoice delays, and the 
resolution of any disputes between the campaign traveler and the 
service provider. The same commenter further cautioned against finding 
that a contribution occurs where a political committee fails to pay 
within the required time period if it has made a good faith effort to 
obtain or reasonably disputes an invoice. The Commission is cognizant 
of the potential tension between this thirty/sixty-day allowance and 
the general prohibitions on extension of credit outside the ordinary 
course of business. See 11 CFR part 116, discussed above. The 
Commission is permitting the limited thirty/sixty-day provision with 
the expectation that the invoice will be sent within the ordinary 
course of business and payment will be made promptly. It therefore does 
not agree with the commenter's suggestion that the time period should 
be extended indefinitely so long as the campaign traveler continues to 
travel. The Commission notes that a political committee need not wait 
until the end of the travel to submit payment for the travel service. A 
political committee faced with an invoice delay or involved in a 
payment dispute with a service provider may, in the rare instance where 
the matter cannot be resolved within the sixty-day period, pay an 
approximate amount and seek reimbursement from the service provider. A 
political committee also may treat the matter as a disputed debt under 
11 CFR 116.10.
    This fixed deadline in new 11 CFR 100.93(d) adds greater clarity 
and certainty than the reference in the previous 11 CFR 114.9(e)(2) to 
a ``commercially reasonable'' period while retaining the flexibility 
necessary to account for costs that cannot be calculated until the 
completion of travel or shortly thereafter. The sixty-day cutoff will 
help to ensure that the invoice will be rendered to the political 
committee promptly. Any extensions of credit resulting from payments 
not being made within the sixty-day period are considered in-kind 
contributions to the candidate or other political committee responsible 
for payment of the travel, and thus violate the Act and Commission 
regulations where such contributions are prohibited or excessive. As 
set forth in new paragraph (f), the payment rate is set at the usual 
and normal fare or rental charge available to the general public for 
the dates traveled or within seven calendar days thereof.

F. 11 CFR 100.93(e) Government Conveyances

    Paragraph (e) of 11 CFR 100.93 provides the required amount of 
payment for travel using any means of transportation, including an 
airplane, that is owned or leased by the Federal government or any 
State or local government. The required amount of payment for travel by 
a campaign traveler on government airplanes is the amount of payment 
set forth in paragraph (c) of Sec.  100.93: A political committee must 
pay the first-class, coach, or charter rate in accordance with 11 CFR 
100.93(c) and (f). 11 CFR 100.93(e)(1)(ii).
    Under paragraph (c), however, Air Force One and many other military 
airplanes would be required to use a comparable charter rate in some 
instances because their travel would be between military bases and not 
between cities served by regularly scheduled first-class commercial 
airline service. Because it would be difficult to find a charter 
airplane comparable to Air Force One and other military airplanes, new 
paragraph (e)(1)(i) provides a special rule for government airplanes 
traveling to or from a military base. When such travel occurs, the 
political committee may pay the lowest unrestricted and non-discounted 
first-class airfare to or from the city with regularly scheduled first-
class service that is geographically closest to the military base 
actually used.
    The required amount of payment for use of other means of travel 
owned or leased by a Federal, State, or local government is the amount 
of payment set forth in paragraph (d): The usual fare or rental charge 
available to the general public on the same travel date for a 
comparable vehicle that is capable of accommodating the same number of 
campaign travelers, including members of the news media, plus the 
Secret Service and other security personnel accompanying a candidate. A 
political committee paying for the use of government travel by airplane 
or other conveyance must also comply with the time limitations in 
paragraphs (c) and (d), respectively.
    Note that paragraph (e), like all of section 100.93, is limited to 
travel in connection with a Federal election. Individuals traveling on 
official government business are not required to reimburse the service 
provider under this section. A significant portion of travel on 
government conveyances is paid for using funds authorized and 
appropriated by the Federal Government. The use of Federal funds is 
governed by general appropriations law and is subject to Congressional 
oversight. The prohibitions and limitations of the Act apply to a 
contribution or expenditure by a ``person,'' as defined in 2 U.S.C. 
431(11) and 11 CFR 100.10. See FEC Interpretation of Allocation of 
Candidate Travel Expenses, 67 FR 5,445 (Feb. 6, 2002). The statutory 
definition of the term ``person'' expressly excludes the Federal 
Government and any authority thereof.\7\ The Commission has previously 
concluded that the travel allocation and reporting regulations at 11 
CFR 106.3(b) are not applicable to

[[Page 69591]]

the extent that a candidate pays for travel expenses using funds 
authorized and appropriated by the Federal Government. 67 FR 5,445.
---------------------------------------------------------------------------

    \7\ 2 U.S.C. 431(11) provides: ``The term `person' includes an 
individual, partnership, committee, association, corporation, labor 
organization, or any other organization or group of persons, but 
such term does not include the Federal Government or any authority 
of the Federal Government.''
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G. 11 CFR 100.93(f) Date and Public Availability of Payment Rate

    Because airfares vary based on the date and time of travel, the 
Commission sought comments on how precisely the payment rate should 
correspond to the actual date of travel. For example, some airlines or 
charter companies may set a base rate for tickets purchased over a 
month in advance of the travel date that is different than the price of 
the same ticket when purchased on the date of travel. One commenter 
urged the Commission to permit the normal advance ticket price when 
calculating the comparable rate as required in proposed section 100.93. 
Another commenter indicated that a search for first-class rates with a 
travel agency should be sufficient, but asserted that Internet fares 
were ``too volatile'' to use in determining the proper rate. A 
different commenter argued that the phrase ``lowest unrestricted and 
non-discounted first-class airfare available for time traveled'' is 
adequately specific, so there is no need to specify ``some mandated 
artificial purchase time-frame, such as within seven days of the travel 
date.''
    The final rules in section 100.93 include a new paragraph (f), 
which specifies that the payment amount must be an unrestricted non-
discounted rate available to the general public for the dates traveled 
or within seven calendar days thereof.\8\ New paragraph (f) applies to 
all of the payment rates set forth in paragraphs (c), (d) and (e) of 11 
CFR 100.93. The Commission agrees that special discounted fares are 
inappropriate for the purposes of this rule and is therefore 
foreclosing reliance on ``e-savers'' and other special fares, such as 
non-refundable fares or fares dependent on advance purchase, that do 
not approximate the normal and usual ``walk-up'' charge for the travel 
route. Paragraph (f) specifies that the rate must be available to the 
general public. Candidates and other campaign travelers may not, for 
example, use a ``government rate'' or membership discount to establish 
the proper amount of payment. The rate must approximate the amount that 
a campaign traveler would have to pay if he or she actually scheduled 
an equivalent flight at an unrestricted non-discounted fare aboard a 
commercial airplane or, for non-airplane travel, the unrestricted non-
discounted rental charge or fare for an equivalent trip aboard a 
comparable commercial conveyance.
---------------------------------------------------------------------------

    \8\ The seven-day period is permitted to account for cities that 
may have commercial airline service on certain days of the week, but 
no commercial service on other days.
---------------------------------------------------------------------------

    In light of the comments and additional clarifications, the 
Commission is not prescribing a set period of time during which 
comparable rates must be ascertained, except that the rate must be 
determined by the time the payment is due.

H. 11 CFR 100.93(g) Preemption

    The rates required by section 100.93 generally establish a floor, 
rather than a ceiling, on the amount of reimbursement payment required 
to avoid a contribution. With the exception of payment for campaign 
travel by publicly funded presidential and vice-presidential candidates 
and individuals traveling on their behalf, candidates and other 
campaign travelers may pay a higher amount than called for by section 
100.93, such as when the service provider seeks a higher rate of 
payment for the use of the conveyance.
    In some cases, there may be State or local laws governing the use 
of State or local government conveyances. In other cases, State or 
local laws may require certain officeholders or public employees to pay 
a higher rate for travel. State or local laws may also require payment 
in advance, or within a shorter period than the seven-day window 
permitted by 11 CFR 100.93(c) or the thirty-day window permitted under 
11 CFR 100.93(d). A new paragraph (g) in the final rules therefore 
clarifies that applicable State or local laws are preempted to the 
extent that they purport to supplant the rates or timing requirements 
of 11 CFR 100.93. State or local officeholders may choose to comply 
with State or local laws requiring higher payment rates or more 
stringent requirements on the time of payment, but they cannot be 
required to comply with those laws.

I. 11 CFR 100.93(h) Reporting

    The NPRM proposed requiring political committees to report the 
value of unreimbursed travel by campaign travelers as well as the 
actual date of travel. Two commenters opposed the proposed reporting 
requirements, arguing that they would impose unnecessary burdens and 
questioning whether significant violations could be exposed using the 
additional information reported. One of these commenters asserted that 
``[s]omeone intent on violating the law simply would not report the 
travel.'' Another commenter argued that the proposed reporting 
requirements would go further than existing requirements, and would 
exceed the scope of 2 U.S.C. 434(b)(5) if it required specific dates of 
travel. This commenter stated that there is currently no requirement 
that an authorized committee must disclose the date of a fundraiser, 
the range of dates that a poll was taken, or the date of a mailing. 
Another commenter expressed a concern that the report of campaign 
travel payment might disclose sensitive campaign information. In 
contrast, a different commenter supported the proposed approach, 
stating that ``candidate committees always are, or ought to be, aware 
of receiving transportation from third parties.''
    The Commission disagrees with the commenters who characterize the 
reporting requirements as overly burdensome and of minimal value. No 
reports other than regularly scheduled committee disclosure reports are 
required. Moreover, the disbursement by the political committee for the 
travel payment must already be reported, along with its purpose, like 
all other disbursements, under 11 CFR 104.1 and 104.3(b)(3) or (4). The 
Commission views the reporting of the date of travel to be entirely 
consistent with the disclosure purposes of the Act. It seems unlikely 
that reporting the date of travel would force the disclosure of 
sensitive campaign information, particularly in light of the fact that 
the payment and reporting of such payment will occur after the travel 
has been completed in most cases and in light of the fact that many 
campaign events are covered by the news media. For these reasons, the 
Commission is adopting the final rules on reporting that generally 
follow the proposed rules.
    Paragraph (h)(1) of 11 CFR 100.93 refers the reader to the existing 
reporting requirements for the receipt of an in-kind contribution. 
Under 11 CFR 104.13, a candidate's authorized committee and other 
political committees must report the amount of unreimbursed value for 
travel services as both the receipt of a contribution from the service 
provider and an expenditure by the political committee.
    In addition, the political committee on whose behalf the travel was 
undertaken must report the travel dates on the report disclosing the 
reimbursement for the travel service. Under new paragraph (h)(2) of 
section 100.93, the political committee must report the actual date of 
travel in the ``purpose of disbursement'' field corresponding to the 
disbursement.

J. 11 CFR 100.93(i) Recordkeeping

    Presidential and vice-presidential candidates receiving public 
funds have

[[Page 69592]]

been required to maintain records documenting the rates used in 
calculating their travel reimbursements. See former 11 CFR 
9004.7(b)(5)(v) and former 9034.7(b)(5)(v). To standardize the 
treatment of campaign travel, the Commission in the NPRM proposed 
extending these recordkeeping requirements to all candidates and moving 
them to new 11 CFR 100.93(i). Of the two commenters addressing this 
subject, one opposed it as a burden unwarranted by evidence of 
widespread abuse. The other commenter expressed support for the 
proposed recordkeeping requirements.
    The final rules implement the recordkeeping requirements proposed 
in the NPRM and incorporate several other documentation requirements 
from 11 CFR 9004.7(b)(5)(v) and 9034.7(b)(5)(v) to standardize 
recordkeeping for candidate travel, to ensure accuracy in reporting, 
and to enhance the disclosure of disbursements for travel. These 
recordkeeping provisions have worked well, in practice, for 
presidential committees. Most of this information must be acquired 
regardless of any recordkeeping duty so that the campaign traveler can 
ensure that the political committee is paying the appropriate amount to 
the service provider. In addition, the final rules require that the 
political committee document the tail number of the airplane actually 
used. For military airplanes without tail numbers, some other unique 
identifier for that airplane will suffice. This documentation is needed 
to ensure accurate reporting and disclosure in light of the broadened 
scope of the new rules and the importance of the operating license of 
each aircraft.
    The recordkeeping requirements for airplanes in the final rules 
vary slightly depending on whether the rate of payment is based on 11 
CFR 100.93(c)(1) or (2) (i.e., whether the actual travel was between 
two cities served by regularly scheduled first-class commercial airline 
service or not.) For travel paid for under paragraph (c)(1) or (c)(2), 
the political committee must maintain a record of the name of the 
service provider, the tail number of the airplane used, an itinerary 
for the trip that lists the total numbers of passengers and specifies 
the campaign travelers, and the information on which the first-class 
payment is based. 11 CFR 100.93(i)(1). For travel on a government 
aircraft to or from a military base (see 11 CFR 100.93(e)(1)(i)), the 
payment rate is also tied to the first-class rate between two cities 
served by regularly scheduled first-class commercial airline service so 
the recordkeeping requirements are the same as for travel paid for 
under paragraph (c)(1). 11 CFR 100.93(i)(1).
    For all other travel by airplane, payment is based on a charter or 
rental rate for a comparable charter airplane, so a record of the size, 
model, and make of the airplane used must be maintained in addition to 
the other information described above. 11 CFR 100.93(i)(2)(i). The 
itinerary for the trip must lists the total numbers of passengers and 
specify the number of security personnel as well as campaign travelers. 
11 CFR 100.93(i)(2)(ii). The political committee must document the rate 
for a comparable charter airplane by listing the name of the company 
offering that service to the public and the dates of the comparison 
rates. 11 CFR 100.93(i)(2)(iii). For travel other than by airplane, 
payment is based on a charter or rental rate for a comparable 
conveyance, so a record of the size, model, and make of the conveyance 
used must be maintained in addition to the other itinerary and service 
provider information described above. 11 CFR 100.93(i)(3).

II. 11 CFR 106.3 Allocation of Expenses Between Campaign and Non-
Campaign Related Travel

    The final rules make only one change to 11 CFR 106.3. Candidates 
who use government conveyance or accommodations for campaign-related 
travel are currently required to report an expenditure in the amount 
equivalent to the ``rate for comparable commercial conveyance or 
accommodation.'' 11 CFR 106.3(e). To eliminate disparities between 
campaign-related travel on private planes and travel on government 
planes, the Commission is revising 11 CFR 106.3 by replacing the 
reference to the ``rate of comparable commercial conveyance'' with a 
reference to the applicable rates for travel reimbursement set forth in 
11 CFR 100.93(c),(d) and (e). Both the reimbursement rates and the 
payment due dates in 11 CFR 100.93 would be applicable to travel by 
airplane and other means of travel, whether owned by an individual, 
corporation, labor organization, partnership, the Federal government, a 
State government, or any other person. The Commission sought comment on 
this approach in the NPRM, but received none.

III. 11 CFR 114.9 Use of Corporate or Labor Organization Facilities

    Previously, paragraph (e) of section 114.9 established the proper 
reimbursement rate for a candidate's use of a means of travel owned or 
leased by corporations or labor organizations. The Commission 
recognized in the NPRM that in most cases the means of travel used for 
campaign trips is likely to be owned or leased by a corporation or 
labor organization, but not in all cases. Individuals or partnerships 
own some airplanes and other means of travel. To accommodate more 
uniform and comprehensive travel reimbursement rules, the Commission 
proposed replacing 11 CFR 114.9(e) with new section 11 CFR 100.93. Both 
of the commenters who addressed this issue expressed support for the 
broadened scope and new location of the rule.
    For the reasons explained above, the Commission is removing and 
reserving paragraph (e) of section 114.9. The subject matter previously 
addressed in 11 CFR 114.9(e) is addressed in new 11 CFR 100.93. In 
addition, the heading of section 114.9, previously ``Use of corporate 
and labor organization facilities and means of transportation,'' is 
revised to remove the reference to means of transportation because the 
rules governing corporate and labor organization means of 
transportation are now located in 11 CFR 100.93.

IV. 11 CFR 9004.6 Expenditures for Transportation and Services Made 
Available to Media Personnel; Reimbursements

    As described below, the Commission is replacing the separate 
reimbursement rates for general election campaign travel by 
presidential and vice-presidential candidates with a reference to the 
rates required by new 11 CFR 100.93. A technical revision to 11 CFR 
9004.6(b)(2) is necessary to conform the previous reference to 
paragraph (C) of 9004.7(b)(5)(i), which is removed.

V. 11 CFR 9004.7 Allocation of Travel Expenditures

    The regulations at 11 CFR 9004.7(b) govern travel on government 
conveyances by general election presidential and vice-presidential 
candidates receiving federal funding. This rule requires the 
presidential or vice-presidential candidate to pay the appropriate 
government entity at one of several specified rates. These rates are 
established in largely the same manner as the reimbursement rates set 
forth in the previous 11 CFR 114.9(e).
    In the NPRM, the Commission proposed revising 11 CFR 
9004.7(b)(5)(i) and (b)(8) to replace the parallel rate determinations 
in this rule with a reference to the reimbursement rates set forth in 
11 CFR 100.93. The Commission did not receive any comments on this 
proposal.
    In the final rules, Sec.  9004.7(b)(5)(i) provides that the 
reimbursement rates in 11 CFR 100.93 serve as the applicable

[[Page 69593]]

valuation of travel by presidential and vice-presidential candidates 
aboard government conveyances. The final rules therefore do not include 
previous paragraphs (A), (B), and (C) of 11 CFR 9004.7(b)(5)(i), which 
had set out the proper valuation rates for the use of a government 
airplane for campaign-related travel. For the reasons stated in the 
above discussion of ``deadhead miles'' in the Explanation and 
Justification for 11 CFR 100.93, the Commission is also removing and 
reserving 9004.7(b)(5)(ii). The final rules also include a technical 
revision to 11 CFR 9004.7(b)(5)(iii) to replace the specified rate for 
use of a government conveyance with a reference to the rate in 11 CFR 
100.93(d). In addition, the recordkeeping provisions of former 11 CFR 
9004.7(b)(5)(v) are being moved to new 11 CFR 100.93(i) and cross 
references to the latter section are being added in paragraph (b)(5)(v) 
of section 9004.7.
    The NPRM proposed minor changes to the wording in paragraphs 
(b)(5)(i) through (iv) in sections 9004.7 and 9034.7 to set the 
required reimbursement rate as a floor, not a ceiling on how much the 
candidate may reimburse, in order to permit a candidate to pay at a 
higher rate. Such a ceiling is necessary, however, to ensure the 
conservation of public funds. The final rules therefore do not include 
these proposed changes. However, the cross reference to new 11 CFR 
100.93 in 11 CFR 9004.7(b)(8) does include a revision specifying that 
section 100.93 governs airplanes not licensed by the FAA to operate for 
compensation or hire under 14 CFR part 121, 129, or 135, and government 
conveyances, thereby mirroring the revision to the scope of section 
100.93.

VI. 11 CFR 9034.6 Expenditures for Transportation and Services Made 
Available to Media Personnel; Reimbursements

    As with the changes to 11 CFR 9004.7, the Commission is replacing 
in 11 CFR 9034.7 the separate reimbursement rates for primary election 
campaign travel by presidential candidates with a reference to the 
rates required by new 11 CFR 100.93. A conforming revision to 11 CFR 
9034.6(b)(2) is therefore necessary to replace the previous reference 
to paragraph (C) of section 9034.7(b)(5)(i), which is removed.

VII. 11 CFR 9034.7 Allocation of Travel Expenditures

    The regulations at 11 CFR 9034.7(b) are substantively identical to 
the regulations at 11 CFR 9007.4(b), except that section 9034.7 governs 
travel on government conveyance by primary election presidential 
candidates receiving public funds. The changes being made to 11 CFR 
9034.7(b) follow the changes made to 11 CFR 9004.7(b) for the reasons 
stated above in the explanation and justification for that section.

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

    The Commission certifies that the attached rules will not have a 
significant economic impact on a substantial number of small entities. 
The basis for this certification is that few, if any, small entities 
would be affected by these final rules, which impose obligations only 
on Federal candidates, their campaign committees, other individuals 
traveling in connection with a Federal election, and the political 
committees on whose behalf this travel is conducted. Federal 
candidates, their campaign committees, and most other political party 
committees and other political committees entitled to rely on these 
rules are not small entities. These rules generally relieve existing 
restrictions on the timing of reimbursement for certain travel and are 
largely intended to simplify the process of determining reimbursement 
rates. The rules do not impose compliance costs on any service 
providers (as defined in the rules) that are small entities so as to 
cause a significant economic impact. With respect to the determination 
of the amount of reimbursement for travel, the new rules merely reflect 
an extension of existing similar rules. To the extent that operators of 
air-taxi services or on-demand air charter services are small entities 
indirectly impacted by these rules, any economic effects would result 
from the travel choices of individual candidates or other travelers 
rather than Commission requirements and, in any event, are likely to be 
less than $100,000,000 per year.

List of Subjects

11 CFR Part 100

    Elections.

11 CFR Part 106

    Campaign funds, political committees and parties, political 
candidates.

11 CFR Part 114

    Business and industry, elections, labor.

11 CFR Part 9004

    Campaign funds.

11 CFR Part 9034

    Campaign funds, reporting and recordkeeping requirements.

0
For the reasons set out in the preamble, the Federal Election 
Commission is amending subchapters A, E, and F of chapter 1 of title 11 
of the Code of Federal Regulations as follows:

PART 100--SCOPE AND DEFINITIONS (2 U.S.C. 431)

0
1. The authority citation for part 100 continues to read as follows:

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



0
2. Section 100.93 is added to subpart C of part 100 to read as follows:


Sec.  100.93  Travel by airplane or other means of transportation.

    (a) Scope and definitions.
    (1) This section applies to all campaign travelers who use:
    (i) An airplane not licensed by the Federal Aviation Administration 
to operate for compensation or hire under 14 CFR part 121, 129, or 135;
    (ii) Other means of transportation not operated for commercial 
passenger service; or
    (iii) An airplane or other means of transportation operated by a 
Federal, State, or local government.
    (2) Campaign travelers who use an airplane that is licensed by the 
Federal Aviation Administration to operate for compensation or hire 
under 14 CFR part 121, 129, or 135, or other means of transportation 
that is operated for commercial passenger service, such as a commercial 
airline flight, charter flight, taxi, or an automobile provided by a 
rental company, are governed by 11 CFR 100.52(a) and (d), not this 
section.
    (3) For the purposes of this section:
    (i) Campaign traveler means
    (A) Any individual traveling in connection with an election for 
Federal office on behalf of a candidate or political committee; or
    (B) Any member of the news media traveling with a candidate.
    (ii) Service provider means the owner of an airplane or other 
conveyance, or a person who leases an airplane or other conveyance from 
the owner or otherwise obtains a legal right to the use of an airplane 
or other conveyance, and who uses the airplane or other conveyance to 
provide transportation to a campaign traveler. For a jointly owned or 
leased airplane or other conveyance, the service provider is the person 
who makes the airplane or other conveyance available to the campaign 
traveler.
    (iii) Unreimbursed value means the difference between the value of 
the transportation service provided, as set

[[Page 69594]]

forth in this section, and the amount of payment for that 
transportation service by the political committee or campaign traveler 
to the service provider within the time limits set forth in this 
section.
    (b) General rule.
    (1) No contribution is made by a service provider to a candidate or 
political committee if:
    (i) Every candidate's authorized committee or other political 
committee on behalf of which the travel is conducted pays the service 
provider, within the required time, for the full value of the 
transportation, as determined in accordance with paragraphs (c), (d) or 
(e) of this section, provided to all campaign travelers who are 
traveling on behalf of that candidate or political committee; or
    (ii) Every campaign traveler for whom payment is not made under 
paragraph (b)(1)(i) of this section pays the service provider for the 
full value of the transportation provided to that campaign traveler as 
determined in accordance with paragraphs (c), (d) or (e) of this 
section. See 11 CFR 100.79 and 100.139 for treatment of certain 
unreimbursed transportation expenses incurred by individuals traveling 
on behalf of candidates, authorized committees, and political 
committees of political parties; and
    (iii) Every member of the news media traveling with a candidate for 
whom payment is not made under paragraph (b)(1)(i) of this section pays 
the service provider for the full value of his or her transportation as 
determined in accordance with paragraphs (c), (d) or (e) of this 
section.
    (2) Except as provided in 11 CFR 100.79, the unreimbursed value of 
transportation provided to any campaign traveler, as determined in 
accordance with paragraphs (c), (d) or (e) of this section, is an in-
kind contribution from the service provider to the candidate or 
political committee on whose behalf, or with whom, the campaign 
traveler traveled.
    (c) Travel by airplane. If a campaign traveler uses an airplane not 
licensed by the Federal Aviation Administration to operate for 
compensation or hire under 14 CFR parts 121, 129, or 135, the campaign 
traveler, or the political committee on whose behalf the travel is 
conducted, must pay the service provider, no later than seven (7) 
calendar days after the date the flight began, for each such campaign 
traveler no less than the following amount for each leg of the trip:
    (1) In the case of travel between cities served by regularly 
scheduled first-class commercial airline service, the lowest 
unrestricted and non-discounted first-class airfare;
    (2) In the case of travel between a city served by regularly 
scheduled coach commercial airline service, but not regularly scheduled 
first-class commercial airline service, and a city served by regularly 
scheduled coach commercial airline service (with or without first-class 
commercial airline service), the lowest unrestricted and non-discounted 
coach airfare; or
    (3) In the case of travel to or from a city not served by regularly 
scheduled commercial airline service, the normal and usual charter fare 
or rental charge for a comparable commercial airplane of sufficient 
size to accommodate all campaign travelers, including members of the 
news media traveling with a candidate, and security personnel, if 
applicable.
    (d) Other means of transportation. If a campaign traveler uses any 
other means of transportation, including an automobile, train, or 
helicopter, the campaign traveler, or the political committee on whose 
behalf the travel is conducted, must pay the service provider within 
thirty (30) calendar days after the date of receipt of the invoice for 
such travel, but not later than sixty (60) calendar days after the date 
the travel began, at the normal and usual fare or rental charge for a 
comparable commercial conveyance of sufficient size to accommodate all 
campaign travelers, including members of the news media traveling with 
a candidate, and security personnel, if applicable.
    (e) Government conveyances.
    (1) If a campaign traveler uses an airplane that is provided by the 
Federal government, or by a State or local government, the campaign 
traveler, or the political committee on whose behalf the travel is 
conducted, must pay the governmental entity:
    (i) For travel to or from a military airbase or other location not 
accessible to the general public, the lowest unrestricted and non-
discounted first-class airfare to or from the city with regularly 
scheduled first-class commercial airline service that is geographically 
closest to the military airbase or other location actually used; or
    (ii) For all other travel, in accordance with paragraph (c) of this 
section.
    (2) If a campaign traveler uses a conveyance, other than an 
airplane, that is provided by the Federal Government, or by a State or 
local government, the campaign traveler, or the political committee on 
whose behalf the travel is conducted, must pay the government entity in 
accordance with paragraph (d) of this section.
    (f) Date and public availability of payment rate. For purposes of 
paragraphs (c), (d) and (e) of this section, the payment rate must be 
the rate available to the general public for the dates traveled or 
within seven (7) calendar days thereof. The payment rate must be 
determined by the time the payment is due under paragraph (c) or (d) of 
this section.
    (g) Preemption. In all respects, State or local laws are preempted 
with respect to travel in connection with a Federal election to the 
extent they purport to supplant the rates or timing requirements of 11 
CFR 100.93.
    (h) Reporting.
    (1) In accordance with 11 CFR 104.13, a political committee on 
whose behalf the unreimbursed travel is conducted must report the 
receipt of an in-kind contribution and the making of an expenditure 
under paragraph (b)(2) of this section.
    (2) When reporting a disbursement for travel services in accordance 
with this section, a political committee on whose behalf the travel is 
conducted must report the actual dates of travel for which the 
disbursement is made in the ``purpose of disbursement'' field.
    (i) Recordkeeping.
    (1) For travel by airplane between cities served by regularly 
scheduled first-class or coach commercial airline service, or for 
travel to or from a military base on a government airplane, the 
political committee on whose behalf the travel is conducted shall 
maintain documentation of:
    (i) The service provider and tail number (or other unique 
identifier for military airplanes) of the airplane used;
    (ii) An itinerary showing the departure and arrival cities and the 
date(s) of departure and arrival, a list of all passengers on such 
trip, along with a designation of which passengers are and which are 
not campaign travelers; and
    (iii) The lowest unrestricted non-discounted airfare available in 
accordance with paragraphs (c), (e) and (f) of this section, including 
the airline offering that fare, flight number, travel service, if any, 
providing that fare, and the dates on which the rates are based.
    (2) For travel by airplane to or from a city not served by 
regularly scheduled commercial airline service, the political committee 
on whose behalf the travel is conducted shall maintain documentation 
of:
    (i) The service provider and the size, model, make and tail number 
(or other unique identifier for military airplanes) of the airplane 
used;

[[Page 69595]]

    (ii) An itinerary showing the departure and arrival cities and the 
date(s) of departure and arrival, a list of all passengers on such 
trip, along with a designation of which passengers are and which are 
not campaign travelers or security personnel; and
    (iii) The rate for the comparable charter airplane available in 
accordance with paragraph (c), (e) and (f) of this section, including 
the airline, charter or air taxi operator, and travel service, if any, 
offering that fare to the public, and the dates on which the rates are 
based.
    (3) For travel by other conveyances, the political committee on 
whose behalf the travel is conducted shall maintain documentation of:
    (i) The service provider and the size, model and make of the 
conveyance used;
    (ii) An itinerary showing the departure and destination locations 
and the date(s) of departure and arrival, a list of all passengers on 
such trip, along with a designation of which passengers are and which 
are not campaign travelers or security personnel; and
    (iii) The commercial fare or rental charge available in accordance 
with paragraph (d) and (f) of this section for a comparable commercial 
conveyance of sufficient size to accommodate all campaign travelers 
including members of the news media traveling with a candidate, and 
security personnel, if applicable.

PART 106--ALLOCATIONS OF CANDIDATE AND COMMITTEE ACTIVITIES

0
3. The authority citation for part 106 continues to read as follows:

    Authority: 2 U.S.C. 438(a)(8), 441a(b), 441a(g).


0
4. Section 106.3 is amended by revising paragraph (e) to read as 
follows:


Sec.  106.3  Allocation of expenses between campaign and non-campaign 
related travel.

* * * * *
    (e) Notwithstanding paragraphs (b) and (c) of this section, the 
reportable expenditure for a candidate who uses government 
accommodations for travel that is campaign-related is the rate for 
comparable accommodations. The reportable expenditure for a candidate 
who uses a government conveyance for travel that is campaign-related is 
the applicable rate for a comparable commercial conveyance set forth in 
11 CFR 100.93(e). In the case of a candidate authorized by law or 
required by national security to be accompanied by staff and equipment, 
the allocable expenditures are the costs of facilities sufficient to 
accommodate the party, less authorized or required personnel and 
equipment. If such a trip includes both campaign and noncampaign stops, 
equivalent costs are calculated in accordance with paragraphs (b) and 
(c) of this section.

PART 114--CORPORATE AND LABOR ORGANIZATION ACTIVITY

0
5. The authority citation for part 114 continues to read as follows:

    Authority: 2 U.S.C. 431(8)(B), 431(9)(B), 432, 434, 437d(a)(8), 
438(a)(8), and 441b.

0
6. Section 114.9 is amended by revising the section title and removing 
and reserving paragraph (e) to read as follows:


Sec.  114.9  Use of corporate or labor organization facilities.

* * * * *
    (e) [Reserved]

PART 9004--ENTITLEMENT OF ELIGIBLE CANDIDATES TO PAYMENTS; USE OF 
PAYMENTS

0
7. The authority citation for part 9004 continues to read as follows:

    Authority: 26 U.S.C. 9004 and 9009(b).


0
8. Section 9004.6 is amended by revising paragraph (b)(2) to read as 
follows:


Sec.  9004.6  Expenditures for transportation and services made 
available to media personnel; reimbursements.

* * * * *
    (b) * * *
    (2) For the purposes of this section, a media representative's pro 
rata share shall be calculated by dividing the total actual cost of the 
transportation and services provided by the total number of individuals 
to whom such transportation and services are made available. For 
purposes of this calculation, the total number of individuals shall 
include committee staff, media personnel, Secret Service personnel, 
national security staff and any other individuals to whom such 
transportation and services are made available, except that, when 
seeking reimbursement for transportation costs paid by the committee 
under 11 CFR 9004.7(b)(5)(i), the total number of individuals shall not 
include national security staff.
* * * * *

0
9. Section 9004.7 is amended by revising paragraphs (b)(5) and (b)(8) 
to read as follows:


Sec.  9004.7  Allocation of travel expenditures.

* * * * *
    (b) * * *
    (5)(i) If any individual, including a candidate, uses a government 
airplane for campaign-related travel, the candidate's authorized 
committee shall pay the appropriate government entity an amount equal 
to the applicable rate set forth in 11 CFR 100.93(e).
    (ii) [Reserved]
    (iii) If any individual, including a candidate, uses a government 
conveyance, other than an airplane, for campaign-related travel, the 
candidate's authorized committee shall pay the appropriate government 
entity an amount equal to the amount required under 11 CFR 100.93(d).
    (iv) If any individual, including a candidate, uses accommodations, 
including lodging and meeting rooms, during campaign-related travel, 
and the accommodations are paid for by a government entity, the 
candidate's authorized committee shall pay the appropriate government 
entity an amount equal to the usual and normal charge for the 
accommodations, and shall maintain documentation supporting the amount 
paid.
    (v) For travel by airplane, the committee shall maintain 
documentation of the lowest unrestricted nondiscounted airfare as 
required by 11 CFR 100.93(i)(1) or (2) in addition to any other 
documentation required in this section. For travel by other 
conveyances, the committee shall maintain documentation of the 
commercial rental rate as required by 11 CFR 100.93(i)(3) in addition 
to any other documentation required in this section.
* * * * *
    (8) Travel on airplanes not licensed by the Federal Aviation 
Administration to operate for compensation or hire under 14 CFR parts 
121, 129, or 135, government conveyances, and other means of 
transportation not operated for commercial passenger service is 
governed by 11 CFR 100.93.

PART 9034--ENTITLEMENTS

0
10. The authority citation for part 9034 continues to read as follows:

    Authority: 26 U.S.C. 9034 and 9039(b).

0
11. Section 9034.6 is amended by revising paragraph (b)(2) to read as 
follows:


Sec.  9034.6  Expenditures for transportation and services made 
available to media personnel; reimbursements.

* * * * *
    (b) * * *
    (2) For the purposes of this section, a media representative's pro 
rata share shall be calculated by dividing the total actual cost of the 
transportation and services provided by the total number of

[[Page 69596]]

individuals to whom such transportation and services are made 
available. For purposes of this calculation, the total number of 
individuals shall include committee staff, media personnel, Secret 
Service personnel, national security staff and any other individuals to 
whom such transportation and services are made available, except that, 
when seeking reimbursement for transportation costs paid by the 
committee under 11 CFR 100.93 and 9034.7(b)(5)(i), the total number of 
individuals shall not include national security staff.
* * * * *

0
12. Section 9034.7 is amended by revising paragraphs (b)(5) and (b)(8) 
to read as follows:


Sec.  9034.7  Allocation of travel expenditures.

* * * * *
    (b) * * *
    (5) (i) If any individual, including a candidate, uses a government 
airplane for campaign-related travel, the candidate's authorized 
committee shall pay the appropriate government entity an amount not 
less than the applicable rate set forth in 11 CFR 100.93(e).
    (ii) [Reserved]
    (iii) If any individual, including a candidate, uses a government 
conveyance, other than an airplane, for campaign-related travel, the 
candidate's authorized committee shall pay the appropriate government 
entity an amount equal to the amount required under 11 CFR 100.93(d).
    (iv) If any individual, including a candidate, uses accommodations, 
including lodging and meeting rooms, during campaign-related travel, 
and the accommodations are paid for by a government entity, the 
candidate's authorized committee shall pay the appropriate government 
entity an amount equal to the usual and normal charge for the 
accommodations, and shall maintain documentation supporting the amount 
paid.
    (v) For travel by airplane, the committee shall maintain 
documentation of the lowest unrestricted nondiscounted airfare as 
required by 11 CFR 100.93(i)(1) or (2) in addition to any other 
documentation required in this section. For travel by other 
conveyances, the committee shall maintain documentation of the 
commercial rental rate as required by 11 CFR 100.93(i)(3) in addition 
to any other documentation required in this section.
* * * * *
    (8) Travel on airplanes not licensed by the Federal Aviation 
Administration to operate for compensation or hire under 14 CFR parts 
121, 129, or 135, government conveyances, and other means of 
transportation not operated for commercial passenger service is 
governed by 11 CFR 100.93.

    Dated: December 10, 2003.
Ellen L. Weintraub,
Chair, Federal Election Commission.
[FR Doc. 03-30872 Filed 12-12-03; 8:45 am]
BILLING CODE 6715-01-P