[Federal Register Volume 70, Number 52 (Friday, March 18, 2005)]
[Rules and Regulations]
[Pages 13089-13091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-5391]



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 Rules and Regulations
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  Federal Register / Vol. 70, No. 52 / Friday, March 18, 2005 / Rules 
and Regulations  

[[Page 13089]]



FEDERAL ELECTION COMMISSION

11 CFR Parts 100 and 104

[Notice 2005-9]


Filing Documents by Priority Mail, Express Mail, and Overnight 
Delivery Service

AGENCY: Federal Election Commission.

ACTION: Final rules and transmittal of regulations to Congress.

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SUMMARY: The Federal Election Commission is promulgating amended rules 
regarding the timely filing of designations, reports, and statements. 
Under these final rules, the Commission will consider certain documents 
to be filed prior to actual receipt, if such documents are sent using 
Priority Mail, Express Mail, or delivered by an overnight delivery 
service. Further information is provided in the Supplementary 
Information that follows.

EFFECTIVE DATE: The effective date for the amendments to 11 CFR 100.19 
and 104.5 is April 18, 2005.

FOR FURTHER INFORMATION CONTACT: Mr. Brad C. Deutsch, Assistant General 
Counsel, or Ms. Esa L. Sferra, Attorney, 999 E Street, NW., Washington, 
DC 20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: The Consolidated Appropriations Act, 2004, 
Pub. L. 108-199, div. F, tit. VI, Sec.  641, 188 Stat. 3 (2004) (the 
``2004 Appropriations Act'') amended the Federal Election Campaign Act 
of 1971, as amended, 2 U.S.C. 431 et seq., (``FECA'') to permit 
political committees and others required to file certain documents to 
use additional delivery options to satisfy the Commission's ``timely 
filing'' requirements for these documents filed with the Commission or 
the Secretary of the Senate. Section 434(a) of FECA previously 
permitted reliance on a U.S. Postal Service (``USPS'') postmark date as 
the date the Commission considers certain designations, reports, and 
statements timely filed, but only if the document was sent by either 
registered or certified mail.
    The 2004 Appropriations Act amended section 434(a) of FECA, 2 
U.S.C. 434(a)(2)(A)(i), (4)(A)(ii), and (5), by allowing filers that 
use priority mail and express mail to treat the date of the USPS 
postmark as the date of filing, so long as the mailing has a delivery 
confirmation. The amendments to section 434(a) of FECA also allow 
filers using an overnight delivery service to treat the date of deposit 
with the overnight delivery service as the date of filing, so long as 
the overnight delivery service has an on-line tracking system. 
Accordingly, the Commission is amending 11 CFR 100.19, which specifies 
when a document is ``timely filed,'' and 11 CFR 104.5, which 
establishes due dates for reports.
    On December 22, 2004, the Commission published a Notice of Proposed 
Rulemaking (``NPRM'') in the Federal Register containing proposed rules 
to implement the 2004 Consolidated Appropriations Act's amendments to 
FECA. 69 FR 76626 (December 22, 2004). The Commission sought comments 
on the proposed changes and on several issues raised in the NPRM. The 
comment period ended January 21, 2005. The Commission received two 
comments, including a letter from the Internal Revenue Service 
indicating that it had ``no comments.'' These comments are available at 
http://www.fec.gov/law/law_rulemakings.shtml#filing.htm under ``Filing 
Documents by Priority Mail, Express Mail, and Overnight Delivery 
Service.''
    Under the Administrative Procedure Act, 5 U.S.C. 553(d), and the 
Congressional Review of Agency Rulemaking Act, 5 U.S.C. 801(a)(1), 
agencies must submit final rules to the Speaker of the House of 
Representatives and the President of the Senate and publish them in the 
Federal Register at least 30 calendar days before they take effect. The 
final rules that follow were transmitted to Congress on March 11, 2005.

Explanation and Justification

I. 11 CFR 100.19. File, Filed or Filing

    Section 100.19 establishes filing deadlines for certain documents 
and sets out criteria for when those documents will be considered 
timely filed. Paragraph (b) of section 100.19 specifies when a mailed 
document will be considered ``timely filed'' and is being revised and 
reorganized into three paragraphs as follows. Paragraph (b)(1) contains 
an amended definition of ``timely filed.'' Paragraph (b)(2) retains the 
requirement that documents sent by first-class mail must be received by 
the close of business on the prescribed filing date to be considered 
timely filed. Paragraph (b)(3) contains new definitions of ``overnight 
delivery service'' and ``postmark.''
A. 11 CFR 100.19(b)(1)
    Paragraph (b)(1) now specifies that any document required to be 
filed under Commission regulations, other than those specified in 11 
CFR 100.19(c)-(g),\1\ is considered ``timely filed'' so long as the 
document is postmarked \2\ by the due date and is deposited: (1) As 
registered or certified mail in an established U.S. Post Office; (2) as 
Priority Mail or Express Mail with a delivery confirmation in an 
established U.S. Post Office; or (3) with an overnight delivery 
service, so long as the document is scheduled to be delivered the next 
business day after the date of deposit and is recorded in the delivery 
service's on-line tracking system.
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    \1\ Certain types of documents are specifically excluded from 
the general definition of ``timely filed'' at 11 CFR 100.19(b) 
because they have their own particular filing dates and methods 
specified in sections 100.19 and 104.5 of the Commission's rules. 
These include 48-hour statements of last minute contributions, 
independent expenditure reports, and 24-hour statements of 
electioneering communications. 11 CFR 100.19(d), (e), and (f); 11 
CFR 104.5(f), (g), and (j). Additionally, candidate notifications of 
expenditures from personal funds are considered filed only upon 
receipt by certain parties. 11 CFR 100.19(g).
    \2\ As discussed below, the new definition of ``postmark'' 
includes a USPS postmark and the verifiable date of deposit with an 
overnight delivery service.
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    The Commission received no comments on its initial interpretation 
that the references to ``priority mail'' and ``express mail'' in the 
2004 Appropriations Act denote USPS Priority Mail and Express Mail 
because the terms are registered trademarks of

[[Page 13090]]

USPS.\3\ Accordingly, the final rules in paragraph (b)(1)(i)(B) reflect 
this interpretation.
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    \3\ See http://www.usps.com/all/welcome.htm.
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    Regarding use of an overnight delivery service, the NPRM requested 
comment on whether the amended rules should permit filers who use an 
overnight delivery service to choose any delivery option offered by 
such a service, so long the filing is scheduled to be delivered within 
three business days from the date of deposit. Alternatively, the NPRM 
invited comment on whether filers who use an overnight delivery service 
should be limited to selecting only a next day delivery option offered 
by such a service. No commenters addressed this issue.
    The Commission concludes that it would be more consistent with the 
language of the 2004 Appropriations Act, which specifies use of ``an 
overnight delivery service,'' 2 U.S.C. 434(a), as amended by 2004 
Appropriations Act (emphasis added), to require that filers using an 
overnight delivery service choose an overnight (i.e., next business 
day) option. Accordingly, the final rules at 11 CFR 100.19(b)(1)(i)(C) 
require filers using an overnight delivery service to select a next 
business day delivery option offered by such a service.
    For any filer who uses an overnight delivery service and wishes to 
treat the date of deposit as the date of filing, the 2004 
Appropriations Act amendment to FECA requires that the filer use an 
overnight delivery service that has an on-line tracking system. 
Although the 2004 Appropriations Act requires that the overnight 
delivery service have an on-line tracking system, it does not 
specifically state that a filer must use such a system. No commenters 
addressed whether the rule should require the use of an on-line 
tracking system. Because an on-line tracking system will provide a 
means to settle a dispute that may arise concerning the timely filing 
of a document (i.e., the date of deposit), the Commission interprets 
the statutory requirement to mean that a filer must in fact choose a 
delivery option that includes tracking of the document, thereby 
providing the filer and the Commission, or any other person, with the 
ability to confirm deposit and delivery dates.\4\ Accordingly, under 
amended 11 CFR 100.19(b)(1)(i)(C) a document deposited with an 
overnight delivery service must be recorded in that delivery service's 
on-line tracking system. The Commission received no comments about 
whether a definition of ``on-line tracking system'' is necessary. The 
Commission believes that the plain meaning of ``on-line tracking 
system'' refers to a publicly available Internet-based tracking system 
and that a definition is unnecessary.
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    \4\ Filers should retain proof of mailing or other means of 
transmittal of documents. See 11 CFR 104.5(i).
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    Lastly, paragraph (b)(1)(ii) retains the requirement that a 
document must be postmarked \5\ no later than 11:59 p.m. Eastern 
Standard/Daylight Time on the due date, with the exception that pre-
election reports must be postmarked fifteen days before the election, 
which is three days earlier than the report's due date.
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    \5\ As discussed below, the new definition of ``postmark'' 
includes a USPS postmark and the verifiable date of deposit with an 
overnight delivery service.
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B. 11 CFR 100.19(b)(2)
    Paragraph (b)(2) continues to require that documents sent by first 
class mail must be received by the close of business on the prescribed 
filing date to be considered ``timely filed.'' However, new language in 
section 100.19(b)(2) clarifies that documents, other than those 
addressed in 11 CFR 100.19(c)-(g), sent by first class mail or by any 
means other than those specified in 11 CFR 100.19(b)(1) (i.e., by any 
means other than registered or certified mail, Priority Mail, Express 
Mail, or with an overnight delivery service) must be received by the 
close of business on the prescribed filing date in order to be 
considered ``timely filed.'' The Commission received no comment on this 
clarification and the clarifying language is almost identical to that 
proposed in the NPRM.
C. 11 CFR 100.19(b)(3)
    New paragraph (b)(3) contains definitions of ``overnight delivery 
service'' and ``postmark.'' New paragraph (b)(3)(i) defines ``overnight 
delivery service'' as a private delivery service of established 
reliability that offers an overnight (i.e., next business day) delivery 
option. The Commission received no comments on this definition. This 
definition is consistent with new section 100.19(b)(1)(i)(C), discussed 
above, which requires filers using an overnight delivery service to 
select a next business day delivery option.
    New paragraph (b)(3)(ii) defines ``postmark'' to include both a 
USPS postmark, as well as the verifiable date that a document is 
deposited with an overnight delivery service because filers may now 
also treat the date of deposit with an overnight delivery service as 
the date of filing.\6\ One comment specifically supported this 
definition of ``postmark.''
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    \6\ Internal Revenue Service regulations and Department of 
Homeland Security regulations also define ``postmark'' to include 
private carrier postmarks. See e.g., 26 CFR 301.7502-1(c)(1)(iii)(B) 
and 8 CFR 245a.12(a)(3) and (4); see also 50 CFR 600.10 (Wildlife 
and Fisheries regulations defining ``postmark'' as ``independently 
verifiable evidence of the date of mailing, such as a U.S. Postal 
Service postmark, or other private carrier postmark, certified mail 
receipt, overnight mail receipt, or a receipt issued upon hand 
delivery * * *'').
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II. 11 CFR 104.5. Filing Dates

    Section 104.5 specifies the filing due dates for certain documents 
filed by political committees and other persons. The Commission is 
amending 11 CFR 104.5 consistent with the Commission's revised 
definition of ``timely filing'' in amended section 100.19(b), discussed 
above. These changes to 11 CFR 104.5 are almost identical to the ones 
proposed in the NPRM, on which the Commission received no comment.
A. 11 CFR 104.5(a)(2)(i)(A) and (c)(1)(ii)
    Paragraphs 104.5(a)(2)(i)(A) and (c)(1)(ii) of this section set 
forth the filing due dates for pre-election reports filed by 
congressional candidates' principal campaign committees and non-
authorized political committees. The Commission is revising these 
paragraphs to specify that, like pre-election reports sent by 
registered or certified mail, such reports sent by Priority Mail or 
Express Mail with a delivery confirmation, or sent with an overnight 
delivery service and scheduled to be delivered the next business day, 
must be postmarked no later than the fifteenth day before the election.
B. 11 CFR 104.5(e)
    Amended paragraph 104.5(e), which specifies the date the Commission 
considers to be the filing date for certain designations, reports, and 
statements required under section 104.5, now treats documents sent by 
Priority Mail or Express Mail with a delivery confirmation, or sent 
with an overnight delivery service and scheduled to be delivered the 
next business day in the same manner as documents sent by registered or 
certified mail. Specifically, all such documents are considered filed 
on the date of the postmark. Pre-election reports filed by these 
methods must be postmarked no later than the fifteenth day before the 
election. Additionally, amended 11 CFR 104.5(e) contains changes to 
clarify to which documents the final rules apply.
    The Commission is also correcting one typographical error in 
paragraph

[[Page 13091]]

104.5(e) to clarify that designations, reports, and statements sent by 
first class mail or by any means other than registered or certified 
mail, Priority Mail, Express Mail, or an overnight delivery service 
must be received by the close of business on, rather than of, the 
prescribed filing date. This correction is technical and nonsubstantive 
and does not require a notice and comment period under the 
Administrative Procedure Act, 5 U.S.C. 553.

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 of this certification is that, to whatever limited extent 
these rules may affect small entities, expanding options for delivering 
statutorily required documents provides more flexibility to filers in 
choosing the method of fulfilling their filing requirements. In 
addition, these new filing methods are permissive, not required. 
Therefore, the rules do not increase costs of compliance and may 
decrease such costs.

List of Subjects

11 CFR Part 100

    Elections.

11 CFR Part 104

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

0
For the reasons set forth in the preamble, the Federal Election 
Commission is amending Subchapter A of Chapter I 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. In section 100.19, paragraph (b) is revised to read as follows:


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

* * * * *
    (b) Timely filed. (1) A document, other than those addressed in 
paragraphs (c) through (g) of this section, is timely filed if:
    (i) Deposited:
    (A) As registered or certified mail in an established U.S. Post 
Office;
    (B) As Priority Mail or Express Mail, with a delivery confirmation, 
in an established U.S. Post Office; or
    (C) With an overnight delivery service and scheduled to be 
delivered the next business day after the date of deposit and recorded 
in the overnight delivery service's on-line tracking system; and
    (ii) The postmark on the document must be dated no later than 11:59 
p.m. Eastern Standard/Daylight Time on the filing date, except that 
pre-election reports must have a postmark dated no later than 11:59 
p.m. Eastern Standard/Daylight Time on the fifteenth day before the 
date of the election.
    (2) Documents, other than those addressed in paragraphs (c) through 
(g) of this section, sent by first class mail or by any means other 
than those listed in paragraph (b)(1)(i) of this section must be 
received by the close of business on the prescribed filing date to be 
timely filed.
    (3) As used in this paragraph (b) of this section and in 11 CFR 
104.5,
    (i) Overnight delivery service means a private delivery service 
business of established reliability that offers an overnight (i.e., 
next business day) delivery option.
    (ii) Postmark means a U.S. Postal Service postmark or the 
verifiable date of deposit with an overnight delivery service.
* * * * *

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

0
3. The authority citation for Part 104 continues to read as follows:

    Authority: 2 U.S.C. 431(1), 431(8), 431(9), 432(i), 434, 
438(a)(8) and (b), 439a, 441a, and 36 U.S.C. 510.

0
4. In section 104.5, paragraphs (a)(2)(i)(A), (c)(1)(ii)(A), and (e) 
are revised to read as follows:


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

    (a) * * *
    (2) Additional reports in the election year. (i) Pre-election 
reports. (A) Pre-election reports for the primary and general election 
must be filed no later than 12 days before any primary or general 
election in which the candidate seeks election. If sent by registered 
or certified mail, Priority Mail or Express Mail with a delivery 
confirmation, or with an overnight delivery service and scheduled to be 
delivered the next business day after the date of deposit and recorded 
in the overnight delivery service's on-line tracking system, the 
postmark on the report must be dated no later than the 15th day before 
any election.
* * * * *
    (c) * * *
    (1) * * *
    (ii) Pre-election reports. (A) Pre-election reports for the primary 
and general election shall be filed by a political committee which 
makes contributions or expenditures in connection with any such 
election if such disbursements have not been previously disclosed. Pre-
election reports shall be filed no later than 12 days before any 
primary or general election. If sent by registered or certified mail, 
Priority Mail or Express Mail with a delivery confirmation, or with an 
overnight delivery service and scheduled to be delivered the next 
business day after the date of deposit and recorded in the overnight 
delivery service's on-line tracking system, the postmark on the report 
shall be dated no later than the 15th day before any election.
* * * * *
    (e) Date of filing. A designation, report or statement, other than 
those addressed in paragraphs (f), (g), and (j) of this section, sent 
by registered or certified mail, Priority Mail or Express Mail with a 
delivery confirmation, or with an overnight delivery service and 
scheduled to be delivered the next business day after the date of 
deposit and recorded in the overnight delivery service's on-line 
tracking system, shall be considered filed on the date of the postmark 
except that a twelve day pre-election report sent by such mail or 
overnight delivery service must have a postmark dated no later than the 
15th day before any election. Designations, reports or statements, 
other than those addressed in paragraphs (f), (g), and (j) of this 
section, sent by first class mail, or by any means other than those 
listed in this paragraph (e), must be received by the close of business 
on the prescribed filing date to be timely filed. Designations, reports 
or statements electronically filed must be received and validated at or 
before 11:59 p.m., eastern standard/daylight time on the prescribed 
filing date to be timely filed.
* * * * *

    Dated: March 10, 2005.
Scott E. Thomas,
Chairman, Federal Election Commission.
[FR Doc. 05-5391 Filed 3-17-05; 8:45 am]
BILLING CODE 6715-01-P