[Federal Register Volume 72, Number 204 (Tuesday, October 23, 2007)]
[Proposed Rules]
[Pages 59953-59967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-20901]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 72, No. 204 / Tuesday, October 23, 2007 / 
Proposed Rules  

[[Page 59953]]



FEDERAL ELECTION COMMISSION

11 CFR Parts 100, 113, 9004, and 9034

[Notice 2007-20]


Candidate Travel

AGENCY: Federal Election Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Election Commission requests comments on proposed 
changes to its rules implementing new statutory provisions governing 
the rates and timing of payment for non-commercial campaign travel on 
aircraft, and a proposed definition of ``Leadership PAC.'' These 
proposed changes, consistent with the new statutory provisions, would 
restrict and in some cases prohibit Federal candidates and their 
political committees from expending campaign funds for non-commercial 
air travel. The proposed rules would apply to all Federal candidates, 
including publicly funded presidential candidates. No final decisions 
have been made by the Commission on any of the proposed revisions in 
this Notice. Further information is provided in the supplementary 
information that follows.

DATES: Comments must be received on or before November 13, 2007. The 
Commission will hold a hearing on these proposed rules on November 15, 
2007, at 10 a.m. Commenters wishing to testify at the hearing must so 
indicate in their written or electronic comments. Anyone seeking to 
testify at the hearing must file written comments by the due date and 
must include a request to testify in the written comments.

ADDRESSES: All comments must be in writing, must be addressed to Ms. 
Amy L. Rothstein, Assistant General Counsel, and must be submitted in 
e-mail, facsimile, or paper copy form. Commenters are strongly 
encouraged to submit comments by e-mail or fax to ensure timely receipt 
and consideration. E-mail comments must be sent to [email protected]. If 
e-mail comments include an attachment, the attachment must be in Adobe 
Acrobat (.pdf) or Microsoft Word (.doc) format. Faxed comments must be 
sent to (202) 219-3923, with paper copy follow-up. Paper comments and 
paper copy follow-up of faxed comments must be sent to the Federal 
Election Commission, 999 E Street, NW., Washington, DC 20463. All 
comments must include the full name and postal service address of the 
commenter or they will not be considered. The Commission will post 
comments on its Web site after the comment period ends. The Commission 
hearing on this rulemaking will be held in the Commission's ninth floor 
meeting room, 999 E Street, NW., Washington, DC.

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

SUPPLEMENTARY INFORMATION: The Commission is proposing changes to its 
rules to implement section 601 of Pub. L. 110-81, 121 Stat. 735, the 
``Honest Leadership and Open Government Act of 2007,'' signed September 
14, 2007. The new law amended the Federal Election Campaign Act of 
1971, as amended (2 U.S.C. 431 et seq.) (``the Act'') by restricting, 
and in some cases prohibiting, the expenditure of campaign funds by 
candidates for Federal office for non-commercial travel aboard 
aircraft. See 2 U.S.C. 439a(c) (henceforth referred to as ``new 2 
U.S.C. 439a(c)'' or ``the new law'').
    The Commission proposes to implement these new provisions by adding 
new section 11 CFR 113.5 to Part 113, which governs the expenditure of 
campaign funds by candidates for Federal office and their authorized 
political committees. In addition, the Commission is proposing 
conforming revisions to 11 CFR 100.93, which provides an exception to 
the definition of ``contribution'' for non-commercial travel aboard 
aircraft by, or on behalf of, Federal candidates and political 
committees, if the candidates and political committees reimburse the 
service providers at specified rates. With respect to the scope of the 
proposed changes, the Commission presents two alternatives. Under 
Alternative 1, the proposed changes would also affect travel by other 
persons, such as a staff member of a political party committee, 
separate segregated fund (``SSF''), or nonconnected political 
committee, if they are not traveling on behalf of a specific candidate. 
Under Alternative 2, the proposed changes would affect only candidates 
for Federal office and those traveling on behalf of a candidate for 
Federal office and his or her authorized committee. The proposed 
changes would not alter the Commission's treatment of travel by means 
of transportation other than aircraft, or on travel aboard commercial 
airliners or charter flights.
    In addition, Congress defined the term ``Leadership PAC'' in 
section 204(8)(B) of Public Law 110-81. This type of political 
committee is subject to certain restrictions under the provisions of 
new 2 U.S.C. 439a(c), and is also subject to certain requirements set 
forth in another section of Public Law 110-81 pertaining to the 
practice of ``bundling'' contributions. See section 204 of Public Law 
110-81. The Commission is therefore proposing that the term be defined 
in the Commission's regulations at 11 CFR 100.5(e) (examples of 
``political committees'').\1\
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    \1\ The Commission is initiating a separate rulemaking to 
address the bundling provisions of the new law and intends to issue 
a Notice of Proposed Rulemaking shortly.
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I. Background

A. The Current Statutory and Regulatory Framework

    The Act defines a ``contribution'' to include ``any gift, 
subscription, loan, advance, or deposit of money or anything of value 
made by any person for the purpose of influencing any election for 
Federal office.'' 2 U.S.C. 431(8)(A)(i); see also 11 CFR 100.52(a). The 
phrase ``anything of value'' encompasses ``the provision of any goods 
or services without charge or at a charge that is less than the usual 
and normal charge for such goods or services.'' 11 CFR 100.52(d)(1). 
When goods or services are provided at less than the usual and normal 
charge, ``the amount of the in-kind contribution is the difference 
between the usual and normal charge for the goods or services at the 
time of the contribution and the amount charged the political 
committee.'' Id.
    As a result, candidates who travel aboard a commercial airliner or 
other conveyance for which a fee is normally

[[Page 59954]]

charged must pay the normal and usual charge for that service in order 
to avoid receiving an in-kind contribution from the person providing 
the travel service. Such in-kind contributions would be prohibited if 
provided by certain entities, including corporations, labor 
organizations, Federal contractors, and foreign nationals. See 2 U.S.C. 
441b, 441c, and 441e; 11 CFR 110.20, 114.2(b), and 115.2. Even where 
the in-kind contributions are not prohibited, they would be subject to 
the contribution limits in the Act and Commission regulations. See 2 
U.S.C. 441a through 441k; 11 CFR Parts 110, 114, and 115.
1. Current 11 CFR 100.93--Payment for Non-Commercial Travel
    The normal and usual charge for travel aboard a commercial airliner 
is the publicly available price for a ticket, and the normal and usual 
charge for a chartered jet is the publicly available charter or lease 
rate. The normal and usual charge for travel aboard a non-commercial 
flight, however, may not be as apparent. For example, there is 
generally not a ticket price for a seat aboard a corporate jet that is 
operated exclusively for the private travel of the corporation's 
executives and their guests. Because candidates for Federal office have 
traveled in the past on these privately operated flights, the 
Commission has provided specific guidance in its regulations regarding 
the rate of reimbursement that candidates and others must pay to avoid 
receiving an in-kind contribution for travel aboard such flights.
    On December 15, 2003, the Commission promulgated final rules adding 
11 CFR 100.93. See Final Rules and Explanation and Justification for 
Travel on Behalf of Candidates and Political Committees, 68 FR 69,583 
(Dec. 15, 2003) (``2003 E&J''). Those final rules established an 
exception from the definition of contribution for payments at specified 
rates for non-commercial travel in connection with a Federal election. 
The payment required for non-commercial air travel by ``campaign 
travelers''--a term that includes individuals traveling in connection 
with elections for Federal office on behalf of candidates or political 
committees, and members of the news media traveling with a candidate--
depends on whether the travel is between cities served by regularly 
scheduled commercial airline service, and whether that service is 
available at a first-class or coach rate. See 11 CFR 100.93(a)(3)(i) 
and 100.93(c). If travel between the origin and destination cities is 
regularly served by commercial first-class airline service, then a 
first-class rate applies. 11 CFR 100.93(c)(1). If such travel is served 
at both origin and destination by coach-class commercial service and 
the origin city is not served by first-class service, then a coach-
class rate applies. 11 CFR 100.93(c)(2). If either the origin or the 
destination city is not served by commercial airline service, then the 
rate is the normal and usual charter fare for a comparable airplane 
sufficient in size to accommodate all campaign travelers. 11 CFR 
100.93(c)(3). The same rates apply to travel on an airplane provided by 
a government entity, unless the travel is to or from a military base or 
other relatively publicly inaccessible location.\2\ The candidate or 
political committee responsible for the reimbursement must pay the 
service provider within seven business days of the trip. 11 CFR 
100.93(c).
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    \2\ If such is the case, then a first-class rate applies, drawn 
from the closest city with regular first-class commercial service. 
11 CFR 100.93(e)(1).
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2. Current 11 CFR 9004.7 and 9034.7--Travel by Presidential and Vice-
Presidential Candidates Accepting Public Funds
    Candidates for President of the United States may elect to receive 
matching funds from the Federal government to contest their primary 
elections and presidential nominees may elect to receive public funding 
to contest the general election. In both cases, the candidates must 
agree, among other things, to use the public funds they receive solely 
for ``qualified campaign expenses'' and not to exceed specified 
expenditure limits. 2 U.S.C. 441a(b)(1)(A) and (B), 26 U.S.C. 
9004(c)(1), 9038(b)(2).
    The Commission has promulgated separate regulations at 11 CFR 
9004.7(b)(5)(i) and (v), (b)(8), and 9034.7(b)(5)(i) and (v) and 
(b)(8), setting forth the appropriate reimbursement rates that publicly 
funded candidates must use for campaign-related travel on non-
commercial transportation. While 11 CFR 100.93 is focused on the 
potential underpayment for travel resulting in a contribution, 11 CFR 
9004.7 and 9034.7 are focused on the appropriate use of public funds, 
and thus on whether, and to what extent, expenses for campaign-related 
travel constitute qualified campaign expenses for which the candidate 
may use public funds. The rates and recordkeeping requirements for 
presidential and vice-presidential candidates accepting public funds 
are the same as those in 11 CFR 100.93 and are mainly set forth through 
cross-references to 11 CFR 100.93.

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

    New 2 U.S.C. 439a(c) prohibits House, Senate, and presidential 
candidates from making any expenditure for non-commercial travel on 
aircraft except at specified rates and subject to certain conditions. 
An ``expenditure'' includes any payment by any person ``made for the 
purpose of influencing any election for Federal office.'' 2 U.S.C. 
431(9)(A)(i). Like the current regulations at 11 CFR 100.93, the new 
law focuses on the appropriate reimbursement rates for non-commercial 
travel. Travel on commercial flights is still governed by the current 
requirements for reimbursement at the normal and usual charge. The new 
law, however, directly limits expenditures by a candidate, candidate's 
authorized committee, or a leadership PAC, rather than merely 
specifying how to avoid the receipt of an in-kind contribution as in 11 
CFR 100.93.
    The new law's rates and conditions under which candidates may spend 
campaign funds for aircraft travel differ depending on the office 
sought. Presidential and Senate candidates may pay for their pro rata 
share of the fair market value of a flight, which is determined by 
dividing the fair market value of the normal and usual charter fare or 
rental charge for a comparable plane of comparable size by the number 
of candidates on board the plane. 2 U.S.C. 439a(c)(1). The authorized 
committees and leadership PACs of House candidates are, however, 
generally prohibited from using any campaign funds to pay for non-
commercial flights, except for flights on aircraft operated by a 
Federal or State government entity. 2 U.S.C. 439a(c)(2). Aircraft owned 
by candidates or their immediate family members are exempt from the 
prohibitions and rate requirements described above. 2 U.S.C. 
439a(c)(3).

III. Proposed 11 CFR 100.5(e)(6)--Definition of ``Leadership PAC''

    The term ``Leadership PAC'' is defined in section 204(a) of Public 
Law 110-81 (2 U.S.C. 434(i)(8)(B)) as ``a political committee that is 
directly or indirectly established, financed, maintained or controlled 
by [a] candidate [for Federal office] or [an] individual [holding 
Federal office] but which is not an authorized committee of the 
candidate or individual and which is not affiliated with an authorized 
committee of the candidate or individual, except that such term does 
not include a political committee of a political party.'' The term 
``PAC'' is an

[[Page 59955]]

acronym for ``political action committee,'' which is a term generally 
used to refer to all political committees other than authorized 
committees and committees of a political party.\3\
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    \3\ The term ``PAC'' has not been a term of art in the law or in 
Commission regulations. PACs sponsored by a corporation or a labor 
organization are generally described in the Commission's regulations 
as separate segregated funds (``SSFs''). See 2 U.S.C. 441b(b)(2)(C); 
11 CFR 100.5(b). PACs that lack corporate or labor sponsorship are 
referred to in the regulations as ``nonconnected committees.'' See, 
e.g., 11 CFR 104.10 and 106.6(a).
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    The new definition of leadership PAC is relevant to two areas of 
the new law that fall within the Commission's purview: (1) The new 
restrictions on candidate travel that would be implemented through both 
proposed sections 11 CFR 100.93 and 113.5, and (2) the disclosure 
requirements in Section 204 of the new law for contributions bundled by 
lobbyists. In the provision relevant to this rulemaking, the new law 
generally prohibits ``candidates for election for the office of 
Representative in, or Delegate or Resident Commissioner to, the 
Congress, an authorized committee and a leadership PAC'' from making 
expenditures for non-commercial air travel. Public Law 110-81, section 
601(a) (codified at 2 U.S.C 439a(c)(2)) (emphasis added).
    The Commission proposes to incorporate a definition of ``leadership 
PAC'' into 11 CFR 100.5, which is the general definition of ``political 
committee.'' Specifically, ``leadership PAC'' would be added to the 
list of different types of political committees in 11 CFR 100.5(e), 
with the new term added at 11 CFR 100.5(e)(6). The proposed definition 
mirrors the definition in the new law.
    The Commission proposes to incorporate the definition of 
``leadership PAC'' into the general definition section in 11 CFR Part 
100, rather than within the travel rules themselves, to promote 
consistency and economy within the structure of its regulations.
    The definition will impact several sections of the Commission's 
regulations, including proposed 11 CFR 100.93, 11 CFR 113.5, and the 
new bundling regulations the Commission intends to promulgate in a 
separate rulemaking. The Commission seeks comments on the content and 
placement of this new definition.

IV. Proposed Revisions to 11 CFR 100.93--Payment for Travel Aboard 
Aircraft and Other Means of Transportation

    The majority of the Commission's current guidance regarding non-
commercial air travel is provided in 11 CFR 100.93, which provides an 
exception to the definition of ``contribution'' for non-commercial 
travel if the service provider is reimbursed for the travel at the 
specified rates. Several of the reimbursement rates permitted under 
current 11 CFR 100.93 are inconsistent with the new statutory 
requirements. For example, the statute requires a candidate for 
President or U.S. Senate to reimburse the service provider at the 
comparable charter rate, whereas current 11 CFR 100.93 allows 
reimbursement at the rate of the first class or coach airfare for 
campaign travel between two cities served by regularly scheduled 
commercial airline service. Therefore, the Commission is proposing 
conforming changes and clarifications in 11 CFR 100.93.
    The Commission wishes to clarify that, although it is proposing 
changes to only some of the provisions in 11 CFR 100.93, it may make 
further revisions to this section in its final rules, in response to 
any public comments and additional information that it may receive 
regarding the proposed rules. The Commission therefore invites comments 
on the entirety of 11 CFR 100.93 and is opening the entire section for 
comments through this Notice of Proposed Rulemaking. Commenters 
favoring retention of current provisions of 11 CFR 100.93 should submit 
comments to that effect. Conversely, those preferring additional 
changes to 11 CFR 100.93 beyond those proposed should submit comments 
to that effect. In particular, the Commission seeks comments on the 
extent to which new 2 U.S.C. 439a(c) should be implemented solely 
through revisions to 11 CFR 100.93, rather than through the addition of 
11 CFR 113.5.

a. General Scope of Rule--Travel on Behalf of Candidates

    New 2 U.S.C. 439a specifies that ``a candidate for election for 
Federal office * * * or any authorized committee of such a candidate, 
may not make any expenditure for a flight on an aircraft unless--* * 
*'' 2 U.S.C. 439a(c)(1) (emphasis added). Given the inclusion of 
authorized committees in this language, the proposed rule, consistent 
with the current rule, would apply to the same range of individuals 
covered by the term ``campaign traveler'' in the current rule. Campaign 
traveler is defined in part as ``any individual traveling in connection 
with an election for Federal office on behalf of a candidate.'' 11 CFR 
100.93(3)(i)(A). In other words, the proposed rule would apply to 
travel by candidates themselves, and also those traveling on behalf of 
candidates or their authorized committees, such as campaign staff. See 
proposed 11 CFR 100.93(c)(1).
    This interpretation is also consistent with the personal use 
prohibitions set out by Congress in 2 U.S.C. 439a(b) and the 
Commission's regulatory interpretation of that section, which apply to 
personal use by ``any person.'' See, e.g., 11 CFR 113.1(g) (defining 
personal use as ``any use of funds in a campaign account of a present 
or former candidate to fulfill a commitment, obligation or expense of 
any person that would exist irrespective of the candidate's campaign or 
duties as a Federal officeholder'') (emphasis added); see also 
Explanation and Justification for final rules regarding Expenditures; 
Reports by Political Committees; Personal Use of Campaign Funds, 60 FR 
7862, 7864 (Feb. 9, 1995) (``Section 439a states that no campaign funds 
`may be converted by any person to any personal use.' ''). Thus, any 
use of campaign funds that would exist irrespective of the campaign or 
the duties of a Federal officeholder is personal use under current 
Commission regulations, regardless of whether the beneficiary is the 
candidate, a family member of the candidate, or some other person.
    Moreover, the Commission notes that Congress, in its amendments to 
the Senate rules, set out an approach to reimbursement for non-campaign 
travel that includes all Congressional staff, not just the Federal 
officeholders themselves. That amendment requires reimbursement for 
non-commercial travel aboard aircraft at the normal and usual charter 
rate for a comparable aircraft of comparable size, ``as determined by 
dividing such cost by the number of Members, officers, or employees of 
Congress on the flight.'' Public Law 110-81, Section 544(c)(1), 
amending Paragraph 1(c)(1) of rule XXXV of the Standing Rules of the 
Senate (emphasis added).
    The Commission seeks comments on this proposed interpretation of 
the new law. Is there any evidence that suggests that Congress intended 
to exclude campaign staff, or others traveling on the candidate's 
behalf, from the general scope of the rule?

A. Proposed 100.93(a)--Scope and Definitions

1. Proposed 11 CFR 100.93(a)(3)(i)--Definition of ``Campaign Traveler''
    A ``campaign traveler'' is defined as ``[a]ny individual traveling 
in connection with an election for Federal office on behalf of a 
candidate or political committee'' and ``[a]ny member of the news media 
traveling with a

[[Page 59956]]

candidate.'' 11 CFR 100.93(a)(3)(i). The Commission proposes to add 
``Any candidate for Federal office or'' at the beginning of that 
definition to clarify that a candidate himself or herself would be 
included within the definition of ``campaign traveler.'' The Commission 
seeks comments on this proposed clarification and whether any 
additional changes to the definition would be appropriate.
2. Proposed 11 CFR 100.93(a)(3)(iv) and (v)--Definitions of 
``Commercial Travel'' and ``Non-Commercial Travel''
    The Commission's current regulations distinguish between commercial 
and non-commercial air travel based on the certification system of the 
Federal Aviation Administration (FAA). Specifically, the Commission's 
rules in 11 CFR 100.93 apply to all airplanes not licensed by the FAA 
to operate for compensation or hire under 14 CFR parts 121, 129, or 
135. 11 CFR 100.93(a)(1)(i).
    The new law's restrictions on expenditures for air travel by 
presidential and U.S. Senate candidates are focused on the FAA's 
certification and safety requirements, but do not reference specific 
FAA regulatory provisions. In order to simplify and align the 
Commission's regulations with the new statutory language, the 
Commission is proposing to replace its reliance on specific FAA 
regulatory provisions with the new terms ``commercial travel'' and 
``non-commercial travel.'' The definition of ``commercial travel'' 
would follow the new statutory language: travel aboard an aircraft 
``operated by an air carrier or commercial operator certificated by the 
Federal Aviation Administration if the flight is required to be 
conducted under air carrier safety rules, or, in the case of travel 
which is abroad, by an air carrier or commercial operator certificated 
by an appropriate foreign civil aviation authority if the flight is 
required to be conducted under air carrier safety rules.'' Proposed 11 
CFR 100.93(a)(3)(iv). Conversely, the proposed definition of ``non-
commercial air travel'' would encompass travel not included in the 
definition of ``commercial travel.'' Proposed 11 CFR 100.93(a)(3)(v).
    The Commission seeks comments on these proposed definitions. Is 
there any difference between the universe of aircraft encompassed by 
the new term ``non-commercial travel'' and the aircraft included in 
current 11 CFR 100.93(c) (``an airplane not licensed by the Federal 
Aviation Administration to operate for compensation or hire under 14 
CFR parts 121, 129, or 135'')? Would additional guidance in the form of 
references to FAA regulatory provisions be helpful in discerning what 
aircraft qualify as ``non-commercial travel,'' or is the proposed 
language sufficiently clear? In addition, the Commission seeks comments 
on whether additional explanation should be provided to address flights 
conducted in foreign countries and, if so, what it should be.
    The Commission also seeks comments on whether the definitions of 
``commercial travel'' and ``non-commercial travel'' should specifically 
address more complex multiple ownership or leasing arrangements, such 
as arrangements in which some of the owners of an aircraft are 
commercial operators certificated by the FAA but others are not.

B. Proposed 11 CFR 100.93(c)(1)--Non-Commercial Air Travel by 
Candidates for President, Vice-President, and U.S. Senate

    New 2 U.S.C. 439a(c)(1)(B) requires candidates for President, Vice 
President, and U.S. Senate to pay their ``pro rata share of the fair 
market value'' of non-commercial flights aboard aircraft. The pro rata 
share is ``determined by dividing the fair market value of the normal 
and usual charter fare or rental charge for a comparable plane of 
comparable size by the number of candidates on the flight.'' Id. 
Because the statutory language is specific that the ``number of 
candidates on the flight'' determines the ``pro rata share,'' the 
Commission proposes to define ``pro rata share of the fair market value 
of a flight'' based solely on the number of candidates on the flight, 
regardless of whether there are other campaign travelers or passengers 
aboard. Moreover, because the statutory language applies to 
expenditures made not only by candidates, but also by authorized 
committees, the Commission proposes to define ``pro rata share'' based 
on the number of candidates represented on a flight. See proposed 11 
CFR 100.93(c)(1) and (3). A candidate is represented on a flight if a 
person is traveling on behalf of that candidate, the candidate's 
authorized committee, or the candidate's leadership PAC.\4\ See 
proposed 11 CFR 100.93(c)(1). This reimbursement rate does not apply to 
travel aboard government aircraft or aircraft owned by a candidate or a 
member of candidate's immediate family, which are covered under 
proposed section 100.93(e) and (g), respectively, and discussed below. 
See subsections F and G of this section. This reimbursement rate also 
would not apply when a candidate or representative of the candidate is 
traveling on behalf of another committee (such as a political party 
committee), rather than on behalf of the candidate's own campaign. 
Reimbursement for a candidate's travel on behalf of another committee 
is the responsibility of the committee on whose behalf the travel 
occurs, at the appropriate reimbursement rate for that committee as set 
forth in proposed 11 CFR 100.93(c).
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    \4\ See discussion of leadership PACs in subsection E.4 of this 
section.
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1. Application of Proposed Rule
    Candidate A, Candidate B, and Candidate B's campaign manager travel 
on a plane on behalf of their respective campaigns, along with PAC 
Representative P traveling on behalf of the PAC. The pro rata share of 
the fair market value of the flight would be determined by dividing the 
normal and usual charter rate for the plane by two because there are 
two candidates represented on the flight (Candidate A and B). Each 
candidate, or the candidate's authorized committee, would therefore be 
required to pay 50% of the charter rate to avoid receiving an in-kind 
contribution from the non-commercial aircraft's owner. Because the full 
costs of the flight would be reimbursed by the candidate travelers 
(i.e., Candidate A and Candidate B), and the candidate committees would 
fully compensate the aircraft's owner for the costs of the flight, PAC 
Representative P's travel would not need to be reimbursed. The 
Commission invites comment on whether this result--PAC Representative P 
traveling without paying fair market value for the cost associated with 
her travel--should be treated as an in-kind contribution to the PAC 
from one or more of the candidates paying for the cost of the flight. 
If so, what would the value be? If the value of the travel by a non-
candidate traveler is a reportable expenditure by one or more of the 
candidates when the non-candidate traveler is the representative of a 
political committee, should the expenditure also be a reportable 
expenditure if the non-candidate traveler is not a political committee 
representative? Does it matter whether the non-candidate traveler is 
traveling at the invitation of one of the candidates or at the 
invitation of the service provider?
    Repayment under the proposed rule would not vary based on the 
number of non-campaign travelers on the plane. For example, Candidate 
A, Candidate B, Candidate B's campaign manager and PAC Representative P 
travel on a twenty-seat plane with six other

[[Page 59957]]

passengers that are not campaign travelers. Candidate A and Candidate B 
would still be required to pay 50% each of the entire normal and usual 
charter fare or rental charge for a ``comparable plane'' seating twenty 
passengers. Because the candidate committees would fully compensate the 
aircraft's owner for the costs of the flight, PAC Representative P and 
the six additional travelers would not be required to provide 
reimbursement.
2. Per Represented Committee Alternative
    As an alternative, the Commission proposes requiring reimbursement 
based on the number of represented committees of any type, rather than 
the number of represented candidates or candidate committees. The 
Commission proposes two variations of this alternative.
    (a) For example, Candidate A, Candidate B, and Candidate B's 
campaign manager travel on a plane on behalf of their respective 
campaigns, along with PAC Representative P traveling on behalf of the 
PAC. The pro rata share of the fair market value of the flight would be 
determined by dividing the normal and usual charter rate for the plane 
by three because there are three represented committees on the flight 
(Candidate A, Candidate B, and PAC). Each committee would be required 
to pay 33% of the charter rate to avoid receiving an in-kind 
contribution from the aircraft's owner.
    (b) Using the same hypothetical situation set forth above, PAC 
Representative P would then have the option of paying either 33% of the 
calculated charter rate, or the amount that would be required under 
current 11 CFR 100.93.
3. Per Passenger Alternative
    As an alternative, the Commission proposes requiring reimbursement 
only for the portion of the normal and usual charter rate that reflects 
the number of candidate representatives as a percentage of all 
passengers on the aircraft.
    For example, Candidate A, Candidate B, and Candidate B's campaign 
manager travel on a plane on behalf of their respective campaigns, 
along with PAC Representative P traveling on behalf of the PAC. The pro 
rata share of the fair market value of the flight would be determined 
by dividing the normal and usual charter rate for the plane by four 
because there are four passengers on the flight. Each passenger would 
therefore be required to pay \1/4\, or 25%, of the charter rate to 
avoid receiving a contribution. Candidate A and PAC, with one passenger 
each, would pay 25% each, while Candidate B, with two passengers would 
be responsible for 50% of the charter rate.
    Under this alternative, the repayment would also vary based on the 
number of non-campaign travelers on the plane. For example, Candidate 
A, Candidate B, Candidate B's campaign manager, and PAC Representative 
P travel on a twenty-seat plane with six other passengers who are not 
candidates or are not traveling on behalf of candidates. Because 
Candidate A was only one passenger among ten, Candidate A would be 
required to pay 10% of the normal and usual charter fare or rental 
charge for a ``comparable plane'' seating twenty passengers. Candidate 
B, with two passengers, would pay 20%, and PAC, with one passenger, 
would pay 10%.
4. Comparable Aircraft Alternative
    As a further alternative, the Commission proposes to follow the 
approach in its current regulations and permit reimbursement at the 
normal and usual charter rate or rental charge for an aircraft of 
sufficient size to carry the campaign travelers. See current 11 CFR 
100.93(c)(3) (requiring reimbursement of ``the normal and usual charter 
fare or rental charge for a comparable commercial airplane of 
sufficient size to accommodate all campaign travelers''). Under this 
approach, the campaign committee would be responsible for paying the 
normal and usual charter rate for a plane of sufficient size to seat 
its campaign travelers, rather than the rate for a plane comparable (in 
terms of seating capacity) to the one flown. For example, Candidate A, 
Candidate B, Candidate B's campaign manager, and PAC Representative P 
travel on a twenty-seat plane with six other passengers who are not 
candidates and are not traveling on behalf of candidates. Under this 
approach, Candidate A, Candidate B, Candidate B's campaign manager, and 
PAC Representative P would collectively be responsible for reimbursing 
the aircraft's owner an amount equivalent to the normal and usual 
charter fare or rental charge for a ``comparable plane'' that could 
seat four passengers. Each candidate or committee must pay its pro rata 
share of that amount.
    Under a variation of this alternative, each campaign traveler would 
be required to pay the normal and usual charter fare or rental charge 
for a ``comparable plane'' able to accommodate only himself and those 
traveling on his behalf. Thus, Candidate A would be required to pay the 
normal and usual cost of a ``comparable plane'' that can seat one 
passenger. Similarly, Candidate B would be required to pay the normal 
and usual cost of a ``comparable plane'' that can seat two passengers.
    The Commission seeks comments on this approach and the presented 
alternatives. In addition, the Commission seeks comments on any other 
calculations that might be more appropriate.

C. Proposed 11 CFR 100.93(c)(2)--Non-Commercial Air Travel by 
Candidates for the House of Representatives

    New 2 U.S.C. 439a(c)(2) states that ``in the case of a candidate 
for election for the office of Representative in, or Delegate or 
Resident Commissioner to, the Congress [hereinafter ``House 
candidates''], an authorized committee and a leadership PAC of the 
candidate may not make any expenditure'' for non-commercial air travel, 
with exceptions for travel on government airplanes and aircraft owned 
by the candidate or members of the candidate's immediate family. Both 
exceptions are discussed below. The effect of this provision is 
generally to prohibit travel by House candidates on non-commercial 
aircraft. Proposed 11 CFR 100.93(c)(2)(i) would reflect new 2 U.S.C. 
439a(c)(2) by prohibiting expenditures by House candidates for non-
commercial travel on behalf of that candidate, the candidate's 
authorized committee, or the candidate's leadership PAC. The new law 
expressly applies to expenditures by authorized committees and 
leadership PACs of House candidates, including expenditures made by the 
candidates themselves on behalf of their authorized committees. 
Proposed 11 CFR 100.93(c)(2) would apply not only to House candidates, 
but also to persons traveling on behalf of such candidate, the 
candidate's authorized committee, or the candidate's leadership PAC. 
This prohibition does not apply when the travel would not be considered 
an expenditure by the candidate, candidate's authorized committee, or 
candidate's leadership PAC. For example, travel by a House candidate on 
behalf of a non-House candidate, party committee, or non-candidate 
committee would be required to be reimbursed by such other committee at 
the respective rate set forth for travel on behalf of that candidate or 
committee. The Commission seeks comment on this approach.
    The Commission seeks comments on the treatment of House candidate 
travel in proposed 11 CFR 100.93(c)(2). Should House candidates be 
permitted to travel on non-commercial aircraft on

[[Page 59958]]

behalf of their own campaigns if the cost of the travel is provided as 
a permissible in-kind contribution? For example, if the travel was 
provided by a permissible source and the costs of the travel were below 
the contribution limit, should a non-candidate committee be able to 
reimburse the travel costs as an in-kind contribution to the candidate? 
The proposed expenditure regulations, discussed below, prohibit such 
in-kind contributions. See proposed 11 CFR 113.5(b). If in-kind 
contributions are allowed, at what rate should their value be 
calculated for reimbursement and reporting purposes?

D. Proposed 11 CFR 100.93(c)(3)--Non-Commercial Air Travel by Other 
Campaign Travelers

    The Commission proposes two alternatives with respect to non-
commercial air travel by non-candidate campaign travelers.
Alternative 1
    The Commission notes that the non-candidate reimbursement rate is 
not addressed in new 2 U.S.C. 439a(c).\5\ These proposed changes are 
intended to promote uniformity and simplicity in the regulation, and 
make the regulation easier to understand. The Commission's long-
standing travel regulations addressed travel only by candidates or on 
behalf of candidates. See former 11 CFR 114.9(e). In 2003, the 
Commission extended its travel regulations to cover all travel in 
connection with a Federal election, stating, ``By establishing a single 
rate for travel reimbursement, the new rules will promote greater 
uniformity among all individuals traveling in connection with a Federal 
election on behalf of a political committee.''
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    \5\ The statute does address payments by political committees 
other than authorized committees in describing the reimbursement 
rate for Senate, Vice Presidential, and Presidential candidates. See 
2 U.S.C. 439a(c)(1)(B) (``the candidate, the authorized committee, 
or other political committee pays * * *'') (emphasis added).
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    Against this background, as one alternative, the Commission is 
proposing changes to the current reimbursement rate for campaign 
travelers who are not traveling on behalf of candidates. For example, 
this rate would apply to individuals traveling on behalf of a political 
party committee, SSF, or nonconnected committee. Under the proposed 
rule, the provider must be reimbursed at the pro rata share of the fair 
market value of such travel. Proposed 11 CFR 100.93(c)(3). The pro rata 
share is based on the number of different committees represented on the 
flight, and is calculated in the same manner as reimbursement for 
travel on behalf of Senate, Vice Presidential, or Presidential 
candidates under proposed 11 CFR 100.93(c)(1). For example, if a non-
commercial flight carried two PAC A campaign travelers and one PAC B 
campaign traveler, each PAC would be responsible for 50% of the fair 
market value of the flight.
    This rate does not apply when the travel is shared with a candidate 
or person traveling on behalf of a candidate. The Commission is 
proposing this alternative to avoid permitting outside organizations to 
subsidize a candidate's travel. Travel on an aircraft that includes a 
campaign traveler flying on behalf of a candidate, candidate's 
authorized committee, or candidate's leadership PAC, must be fully 
reimbursed by that candidate, candidate's committee or, when 
permissible, the candidate's leadership PAC. No reimbursement would be 
required by the non-candidate travelers. See proposed 11 CFR 
100.93(c)(3). For example, if a non-commercial flight carried two PAC A 
campaign travelers, one PAC B campaign traveler, and Senator A, 
traveling on behalf of his or her campaign, Senator A or Senator A's 
campaign committee would be responsible for the full fair market value 
of the flight. PAC A and PAC B would not have to reimburse for the 
flight costs.
    The Commission invites comment on whether this result should be 
treated as an in-kind contribution to the PACs from Senator A. Does it 
matter whether or not the non-candidate travelers are representatives 
of political committees? If the value of the travel by the non-
candidate travelers is a reportable expenditure by Senator A when the 
non-candidate travelers are political committee representatives, should 
the expenditure also be a reportable expenditure if the non-candidate 
travelers are not political committee representatives? Does it matter 
whether the non-candidate travelers are traveling at the invitation of 
Senator A or at the invitation of the service provider?
Alternative 2
    Under this alternative, the Commission proposes to retain the 
existing reimbursement rate structure for non-candidate travel. Because 
non-candidate travel is not addressed in the new law, the existing rate 
structure would remain the same for all campaign travelers not 
traveling on behalf of a candidate or that candidate's authorized 
committee (i.e., campaign travelers traveling on behalf of political 
party committees, SSFs, and other non-authorized committees). The 
Commission notes that this might result in the service provider being 
paid more than the fair market value of the flight. Does the 
possibility of such ``overcompensation'' to the service provider 
represent a concern under FECA? And, if so, in what way?
    The Commission seeks comment on this approach. Should the 
Commission interpret the fact that new 2 U.S.C. 439a(c) does not 
address non-candidate travel as a form of legislative acquiescence to 
the Commission's current regulations on non-candidate travel 
reimbursement? Do the first class and coach air fare rates reflect the 
fair market value of the services provided? Should the Commission adopt 
a different reimbursement rate for non-candidate travel, such as the 
per committee or per passenger alternatives discussed above?

E. Additional Proposed Revisions to 11 CFR 100.93

1. Members of the Media and Security Personnel
    Members of the news media ``traveling with a candidate'' for 
Federal office are expressly included within the definition of 
``campaign traveler'' in the Commission's current rules. See 11 CFR 
100.93(a)(3)(i)(B). The Commission is not proposing changes to this 
definition. Under the current rules, when a member of the media is 
traveling with a candidate, that candidate's committee is ultimately 
responsible for paying the service provider for the full costs of the 
travel, but may seek reimbursement from the media for the media's 
portion of the travel expenses.\6\ The Commission proposes to revise 11 
CFR 100.93(b)(1)(iii) to ensure that members of the media would not be 
permitted to relieve the candidates with whom they travel from 
responsibility for paying the service provider the full normal and 
usual charter rate or rental charge for travel on an aircraft, pursuant 
to proposed 11 CFR 100.93(c)(1). Members of the media would still be 
permitted to reimburse the service provider for travel on conveyances 
other than aircraft. The Commission seeks comments on this approach. 
Should the Commission instead continue to allow reimbursement from 
members of the

[[Page 59959]]

media for travel on aircraft? At what rate should this reimbursement 
take place, for example, should it be calculated at a portion of the 
charter rate or at a first class rate?
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    \6\ ``If a member of the news media elects to have the 
candidate's authorized committee pay for the media's travel rather 
than paying the service provider directly, he or she may do so and 
the candidate's authorized committee is permitted to seek 
reimbursement from the media. Ultimately it is the candidate's 
responsibility to ensure that the service provider is reimbursed for 
the value of the transportation provided to all persons traveling 
with the candidate.'' 2003 E&J at 69586. See also 11 CFR 9004.6 and 
9034.6.
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    Security personnel are treated differently under the Commission's 
current rules. Under the current rules, security personnel are not 
necessarily considered ``campaign travelers,'' but could qualify as 
such depending on the nature of any additional services that they 
provide a candidate. Compare 11 CFR 100.93(a)(3)(i)(A) with 
100.93(c)(3) and (d). For example, if Secret Service personnel travel 
with a candidate for Federal office to the candidate's fundraiser 
aboard a government airplane, the candidate's authorized committee 
would not be required to pay for the Secret Service member's travel 
under the current rules unless the Secret Service agent otherwise 
qualified as a campaign traveler or the flight was required to be 
reimbursed at the usual charter rate. See current 11 CFR 100.93(c)(3) 
(calculation of the usual charter rate requires ``comparable commercial 
conveyance of sufficient size to accommodate all campaign travelers * * 
* and security personnel'') (emphasis added) and 11 CFR 
100.93(e)(1)(ii). Committees can then seek reimbursement from the 
Secret Service for their portion of the travel expenses. See, e.g., 
Advisory Opinion 1992-38 (Clinton/Gore) (loan proposal premised on 
reimbursement from the Secret Service); see also 11 CFR 9004.6 and 
9034.6.
    Under the proposed rules, when security personnel travel with a 
candidate or person traveling on behalf of a candidate, that 
candidate's committee would be responsible for the full costs of the 
travel. See proposed 11 CFR 100.93(c)(1). However, if the travel occurs 
on a government aircraft, the security personnel would not be included 
in the calculation. See proposed 11 CFR 100.93(e)(1). Should the 
Commission allow reimbursement from security personnel for travel on 
non-commercial, non-governmental aircraft? At what rate should this 
reimbursement take place, for example, should it be calculated at a 
portion of the charter rate or at a first class rate? Under current 
regulations, how and under what circumstances do committees seek 
reimbursement for travel expenses from the U.S. Secret Service?
2. ``Comparable Plane of Comparable Size''
    New 2 U.S.C. 439a(c)(1)(B) requires that the candidate or the 
candidate's authorized committee use the fair market value of a 
``comparable plane of comparable size'' for purposes of calculating the 
appropriate charter rate. The Commission interprets ``comparable size'' 
as an aircraft with similar physical dimensions that is able to carry a 
similar number of passengers.\7\
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    \7\ The Commission's current rules at 11 CFR 100.93 distinguish 
between travel aboard an ``airplane'' and travel aboard all other 
conveyances, including helicopters. See 11 CFR 100.93(a)(3)(ii) 
(definition of ``service provider'' focuses on ``person who makes 
the airplane or other conveyance available''), 11 CFR 100.93(c) 
(``travel by airplane'') and 11 CFR 100.93(d) (``other means of 
transportation'' includes ``any other means of transportation'' and 
specifically lists helicopters). For internal consistency and to 
promote uniformity within its regulations and avoid confusion, the 
Commission proposes to replace all references to ``airplanes'' in 11 
CFR 100.93 with ``aircraft.'' The primary impact would be that 
travel aboard a helicopter would be reimbursed at the pro rata share 
of the fair market value of the flight.
---------------------------------------------------------------------------

    The Commission interprets ``comparable plane'' as an aircraft of 
similar make and model as the airplane that actually makes the trip, 
with the same amenities as that airplane. This interpretation is 
consistent with the Commission's current interpretation of a similar 
term, ``comparable commercial airplane,'' in the current rules. See 11 
CFR 100.93(c)(3); see also proposed 11 CFR 100.93(c)(3)(iii). As 
explained in the 2003 E&J:

a ``comparable commercial airplane'' means an airplane of similar 
make and model as the airplane that actually makes the trip, and 
with the same amenities as that airplane. For example, in Advisory 
Opinion 1984-48, the Commission interpreted a comparable airplane as 
being ``of the same type (e.g., jet aircraft versus prop plane) and 
services offered (e.g., plane with dining service or lavatory versus 
one without)'' as the plane actually used. The Commission further 
explained that when a candidate used a twin engine prop jet, a 
single engine, prop aircraft would not be a comparable aircraft. The 
term ``comparable commercial airplane'' is intended to require these 
distinctions as well as other differences such as when a plane is 
chartered with a crew or without, or with or without fuel.

2003 E&J at 69588-69589.

    The Commission seeks comments on this approach.
3. Presidential and Vice-Presidential Candidates Accepting Public 
Financing
    The Commission proposes to continue its policy of promoting equal 
treatment of travel by publicly financed candidates and presidential or 
vice-presidential candidates who have not accepted public funds. 
Therefore, proposed 11 CFR 100.93(c)(1) would apply directly to 
presidential and vice-presidential candidates who have not accepted 
public funds, while the proposed revisions to 11 CFR 9004.7 and 9034.7, 
discussed below, would continue to incorporate the section 100.93 rates 
by reference and thereby indicate that they also apply to candidates 
who have accepted public funds. One important distinction, however, is 
that a presidential candidate accepting public funds for the general 
election is prohibited from receiving any in-kind contribution from any 
person, which would include an in-kind contribution of non-commercial 
air travel.
    The Commission seeks comments on the proposed application of the 
new rules to publicly financed presidential and vice-presidential 
candidates.
4. Travel on Behalf of Leadership PACs of Senate, Presidential, and 
Vice-Presidential Candidates
    Under new 2 U.S.C. 439a(c), payments by leadership PACs of House 
candidates are subject to the same restrictions as payments by 
authorized committees of House candidates. See 2 U.S.C. 439a(c)(2). In 
contrast, new 2 U.S.C. 439a(c) is silent with respect to leadership 
PACs of Senate candidates and Federal officeholders with leadership 
PACs who are also presidential or vice-presidential candidates.
    The Commission proposes to apply the new reimbursement rates to 
travel on behalf of a Senate candidate's leadership PAC. See 11 CFR 
100.93(c)(1). The Commission seeks comment on this approach. 
Alternatively, should the Commission decline to extend the new 
reimbursement rate structure to travel on behalf of a Senate 
candidate's leadership PAC because the new law does not explicitly do 
so?
5. Commercially Reasonable Time Frame
    Candidates for President, Vice-President, and the U.S. Senate must 
pay their pro rata share of non-commercial travel on aircraft ``within 
a commercially reasonable time frame after the date on which the flight 
is taken.'' 2 U.S.C. 439a(c)(1)(B). Proposed 11 CFR 100.93(c) would 
define the statutory ``commercially reasonable time frame'' as a seven-
day time frame beginning on the first day of the flight. The proposed 
approach would be located in the introductory clause of 11 CFR 
100.93(c) and thus would be applicable to all payments required under 
that paragraph. The Commission seeks comment on this approach.
    Is seven days a ``commercially reasonable time frame'' for 
reimbursement or is it too short a period? Would another time period 
for

[[Page 59960]]

reimbursement be more appropriate or reasonable? Should the Commission 
instead establish the seven-day period (or some other period) as a safe 
harbor, and consider longer periods on a case-by-case basis to 
determine if the ``commercially reasonable time frame'' requirement was 
satisfied?

F. Proposed 11 CFR 100.93(e)--Government Conveyances

    The Commission's current rules at 11 CFR 100.93(e) require 
reimbursement for travel aboard airplanes owned by the Federal 
government, or by any State or local government entity, at the same 
rate as travel aboard other airplanes (i.e., the rate for a first-class 
or coach ticket aboard a commercial flight if the travel is between two 
cities served by regularly scheduled commercial airline service, or the 
equivalent charter rate if there is no such service between the 
cities).\8\ Non-commercial campaign travel aboard other government 
conveyances is also required to be reimbursed at the same rate as 
travel aboard equivalent means of transportation not owned by a 
government entity. 11 CFR 100.93(e)(2).
---------------------------------------------------------------------------

    \8\ Travel to or from a military airbase or other location not 
accessible to the general public is treated as travel from the 
nearest city with regularly-scheduled commercial airline service. 11 
CFR 100.93(e)(1)(i).
---------------------------------------------------------------------------

    New 2 U.S.C. 439a(c) generally prohibits candidates for the U.S. 
House of Representatives from using campaign funds for non-commercial 
campaign travel, but provides an exception for travel aboard an 
aircraft ``operated by an entity of the Federal government or the 
government of any State.'' 2 U.S.C. 439a(c)(2)(B). The new law does not 
specify any particular rate of reimbursement for travel aboard 
government aircraft, nor does it explicitly require or prohibit 
reimbursement for such travel.\9\
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    \9\ The Commission notes that Public Law 110-81 also amends the 
Senate ethics rules regarding travel. These amendments similarly 
require Senators to pay this pro rata share of the fair market value 
of a flight for non-commercial travel. See Public Law 110-81, Sec. 
544(c)(1), amending Paragraph 1(c)(1) of rule XXXV of the Standing 
Rules of the Senate. These amendments, however, expressly except 
from these restrictions any travel aboard ``an aircraft owned or 
leased by a governmental entity.'' Standing Rules of the Senate, 
Rule XXXV, Paragraph 1(c)(1)(C)(iii).
---------------------------------------------------------------------------

    Proposed 11 CFR 100.93(e) would require all campaign travelers, 
including candidates for Federal office and those traveling on their 
behalf, who travel on aircraft provided by a Federal or State 
government entity (including local governments), to reimburse the 
appropriate government entity for the travel. See proposed 11 CFR 
100.93(e). The proposed rules set out two alternative rates of 
reimbursement for travel by candidates and candidate representatives, 
and either rate would be acceptable.
    The first proposed rate of reimbursement, which would be similar to 
current 11 CFR 100.93(c)(1), would be the pro rata share per 
represented candidate of the normal and usual charter fare or rental 
charge for the flight on a comparable aircraft of sufficient size to 
accommodate all of the campaign travelers. The pro rata share would be 
determined by dividing the normal and usual charter fare by the number 
of different candidates represented on the flight, regardless of the 
total number of campaign travelers or other passengers. Under this 
proposal, the ``comparable aircraft'' used for determining the required 
reimbursement amount would not be required to accommodate the non-
campaign related passengers and equipment aboard the aircraft. For 
example, if Presidential Candidate A, two campaign staffers traveling 
on behalf of Presidential Candidate A, two members of the Secret 
Service, and PAC representative P, travel on a twenty-seat government 
aircraft, reimbursement would be required at the normal and usual 
charter rate for comparable aircraft of sufficient size to accommodate 
four passengers (Presidential Candidate A, his two campaign staffers, 
and PAC representative P; the two Secret Service agents would not be 
counted). Presidential Candidate A would pay the full charter rate, and 
PAC representative P would not be required to reimburse for his or her 
travel. The Commission seeks comment on this approach. Specifically, do 
non-candidate campaign travelers use government aircraft when not 
accompanied by a candidate, or person traveling on behalf of a 
candidate? At what rate should travel on a government plane that does 
not include any candidate-related campaign travelers be calculated?
    The Commission seeks comments on a variation of this first 
reimbursement rate, in which Presidential Candidate A and PAC 
representative P would each be responsible for the full cost of the 
normal and usual charter rate for an aircraft of sufficient size to 
accommodate only those campaign travelers who are traveling on their 
behalf. Under this variation, Presidential Candidate A would pay the 
normal and usual charter rate for an aircraft capable of accommodating 
three campaign travelers: Candidate A and his two staffers. PAC 
representative P would be required to pay only the normal and usual 
charter rate for an aircraft of sufficient size to carry one passenger.
    With respect to campaign travel aboard Air Force One or other 
government aircraft dedicated to transporting the Vice President, the 
Speaker of the House of Representatives, or other such officials, the 
Commission intends that the reimbursement amount under this proposal 
would be determined with reference to an aircraft of sufficient size to 
accommodate the campaign travelers, and excluding all non-campaign-
related personnel and equipment. The Commission acknowledges that it 
may be difficult, if not impossible, to apply the ``comparable plane of 
comparable size'' standard to circumstances in which the campaign 
traveler travels exclusively aboard a specially-outfitted, government-
owned aircraft by virtue of his or her status as an officeholder. For 
example, few, if any, aircraft exist with the ``same amenities'' as Air 
Force One. See proposed 11 CFR 100.93(e)(1)(i).
    The second proposed rate of reimbursement would be the private 
traveler reimbursement rate per campaign traveler. This rate would be 
the rate specified by the Federal, State, or local government agency or 
other government entity for private travel on its aircraft by a member 
of the public. The Department of Defense, for example, publishes a list 
of hourly reimbursement rates for both fixed-wing aircraft and 
helicopters and includes an ``All Other User'' rate.\10\ Using the 
private traveler reimbursement rate, the reimbursement rate is 
calculated by dividing the private traveler reimbursement rate by the 
number of campaign travelers. Reimbursement would not be required for 
national security staff or other government officials on the flight 
that are not campaign travelers. The Commission seeks comment on this 
approach. Should the campaign traveler be permitted to reimburse the 
government entity at a lower rate specified by the government entity, 
such as the rate offered by some government agencies to travelers of 
other government agencies? Should the regulations offer a choice 
between alternative acceptable valuation methods, or should the 
Commission adopt a single method of determining the reimbursement rate? 
The Commission recognizes that campaign travel aboard government 
conveyances such as Air Force One and Air Force Two present special 
circumstances. Therefore, the

[[Page 59961]]

Commission requests comment on how it should address Air Force One and 
Air Force Two in its regulations.
---------------------------------------------------------------------------

    \10\ See Fiscal Year 2008 Reimbursement Rates, available at 
http://www.defenselink.mil/comptroller/rates/fy2008/2008_f.pdf and 
http://www.defenselink.mil/comptroller/rates/fy2008/2008_h.pdf.
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    The proposed rules would not specify a particular time for 
repayment for travel on government aircraft under either of the 
alternative rates. Should the Commission require payment within a 
specific time period, such as seven days, as for travel on other 
aircraft under proposed 11 CFR 100.93(c)?

G. Proposed 11 CFR 100.93(g)--Exception for Aircraft Owned by Federal 
Candidates and Their Family Members

    The amendments to 2 U.S.C. 439a include an exception for travel 
aboard aircraft that are ``owned or leased'' by a candidate or 
candidate's immediate family member, including an aircraft owned or 
leased by any entity in which the candidate or a member of the 
candidate's immediate family ``has an ownership interest,'' provided 
that the entity is not a ``public corporation'' and the use of the 
aircraft is not ``more than the candidate's or immediate family 
member's proportionate share of ownership allows.'' 2 U.S.C. 
439a(c)(3)(A). The exception would operate as an exception to all of 
the restrictions on expenditures for air travel in new 2 U.S.C. 
439a(c). See discussion of proposed 11 CFR 113.5. The Commission seeks 
comment on this approach.
    While the new exception relieves the restrictions on expenditures, 
it does not relieve candidates of the obligation to reimburse the 
service providers (candidates, members of their family, or entities in 
which either owns an interest) to avoid receiving an in-kind 
contribution for the use of the aircraft. See 11 CFR 100.93. Even 
though a candidate for Federal office may make an unlimited amount of 
contributions to his or her own campaign, those contributions must be 
reported by the candidate's authorized committee.\11\ 11 CFR 110.10; 
Advisory Opinions 1991-09 (Hoagland), 1990-09 (Mueller), 1985-33 
(Collins), 1984-60 (Mulloy). Contributions by all other persons, 
including immediate family members, are subject to the applicable 
amount limits and source prohibitions. 11 CFR 110.1 et seq.
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    \11\ A contribution by a candidate for the House or Senate to 
his own campaign may also impact separate disclosure requirements 
for expenditures from personal funds under 2 U.S.C. 441a(i), the so-
called ``Millionaires Amendment.'' 2 U.S.C. 441a(i)(1)(C); 11 CFR 
Part 400. The Commission seeks comment on the impact of these 
proposed regulations on the Millionaire's Amendment.
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    The Commission proposes several reimbursement alternatives. 
Proposed 11 CFR 100.93(g) would require reimbursement for aircraft 
owned by candidates and their immediate family at the rates set forth 
in the Commission's existing rules, which would be moved to 11 CFR 
100.93(g)(1)(i) through (iii): first-class, coach, or charter rates, 
depending on whether the origin and destination cities are served by 
regularly scheduled commercial airline service. The charter rate would 
be required only if the travel is between two cities not served by 
regularly scheduled first class or coach commercial airline service.
1. Incremental Cost Alternative
    As an alternative, the Commission proposes that such travel be 
reimbursed at the actual incremental cost of such travel. For example, 
in the case of a candidate piloting his or her own aircraft to a 
campaign event, the rate of reimbursement would be the actual cost of 
fuel and any incremental costs such as landing fees. Depreciation or 
the candidate's piloting services would not be included in the 
reimbursement calculation. However, under this alternative, if a pilot 
or crew were employed for the flight, the cost of their services would 
be included in the reimbursement rate. Should reimbursement not be 
required if the pilot or crew (including family members) are volunteers 
for the candidate or campaign committee?
2. Actual Value Alternative
    In the case of travel on an aircraft that is owned or leased under 
a shared-ownership or other time-share arrangement, the Commission 
proposes as an additional alternative that reimbursement be required at 
the hourly, mileage, or other applicable rate charged the candidate, 
corporation, or immediate family member for the costs of the travel. 
For example, if a candidate traveled on an aircraft leased by an 
immediate family member at a cost of $1,000 per hour, the appropriate 
reimbursement rate to that family member would be $1,000 per hour.
    The Commission seeks comment on the proposed approaches or any 
other method of calculation. For example, the Commission seeks comment 
on whether the exception should require reimbursement at all for travel 
on candidate-owned aircraft. Alternatively, should the Commission 
require reimbursement at the same reimbursement rate required for all 
other candidate travel under the proposed regulations, i.e., the pro 
rata share of the fair market value of such flight? Moreover, should 
the Commission allow one or more methods for calculating the 
appropriate reimbursement rate?
    Because the exception in 2 U.S.C. 439a(c)(3) for travel on aircraft 
owned by candidates or members of their immediate family functions to 
permit otherwise restricted or prohibited expenditures by candidates 
and their committees, the Commission proposes to limit the exception to 
travel by candidates or persons traveling on behalf of candidates. 
Thus, proposed 11 CFR 100.93(g) would cover travel on an aircraft owned 
by a candidate, the candidate's immediate family member, or an entity 
other than a public corporation in which the candidate or immediate 
family member has an ownership interest. The exception would not, 
however, be available for other candidates traveling on behalf of their 
own campaigns.\12\ The Commission seeks comment on this approach.
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    \12\ The reimbursement rates in proposed 11 CFR 100.93(c)(3)(i) 
through (iii) would apply to officials of a political party 
committee who are traveling on behalf of the party committee, and 
other campaign travelers who are traveling on behalf of a political 
committee other than a candidate's authorized committee or 
leadership PAC.
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    In addition, the exception in new 2 U.S.C. 439a(c)(3) includes 
several terms warranting clarification. First, the term ``ownership 
interest'' is not defined. The Commission proposes to interpret the 
term ``ownership interest'' to include fractional ownership, equity, or 
use arrangements, as well as ``time-sharing'' arrangements in which the 
candidate or an immediate family member pays a fee for a specified 
amount of travel on the aircraft.
    The Commission proposes to interpret the term ``public 
corporation'' as applying to any corporation with publicly traded 
shares. Therefore, aircraft owned by privately held corporations 
without publicly traded shares, partnerships without publicly traded 
equity interests, limited liability companies without publicly traded 
shares, and all other entities without publicly traded shares or equity 
interests would fall within this exception, so long as a candidate or 
member of the candidate's immediate family owns an equity interest or 
voting interest in that entity.
    The new statutory exception limits a candidate's use of the 
aircraft to not ``more than the candidate's or immediate family 
member's proportionate share of ownership allows.'' 2 U.S.C. 
439(c)(3)(A). However, the statute does not specify the exact nature of 
the relationship between ownership shares and use of the aircraft.

[[Page 59962]]

    Rather than account for all of the potential ownership structures 
of an entity that may own or lease an aircraft, the Commission is 
proposing a simple condition for the exception to apply: unless the 
candidate or immediate family member is the sole owner of the aircraft, 
the amount of use of the aircraft to which each ownership share is 
entitled must be specified in writing prior to the candidate's use of 
the airplane. As long as the written policy provides a reasonable 
relationship between the use of the aircraft and the percentage of 
ownership by the candidate or candidate's immediate family member, the 
Commission would not delve into the various ownership structures. The 
Commission requests comments on this proposal. If the candidate's use 
of the aircraft exceeds his or her proportionate ownership share, how 
should that excessive use be reimbursed? Should the excessive use be 
prohibited altogether?
    The proposed rules would not specify a particular time for 
repayment for travel on aircraft owned by a candidate or a member of 
the candidate's immediate family. Should the Commission require payment 
within a specific time period, such as seven days, as for travel on 
other aircraft under proposed 11 CFR 100.93(c)?

H. Recordkeeping Requirements

    In light of the proposed changes to the reimbursement rates 
required for candidates and candidate representatives, the Commission 
proposes two revisions to its current recordkeeping requirements for 
non-commercial travel at 11 CFR 100.93(i), which would be relocated to 
proposed 11 CFR 100.93(j).
    First, although the Commission's current rules permit candidates 
and persons traveling on their behalf to pay first-class or coach rates 
for certain flights, candidates and their representatives would be 
required to pay the normal and usual charter rates under the proposed 
rules. See proposed 11 CFR 100.93(c)(1) and (2). Accordingly, the 
Commission proposes to establish a new paragraph in its revised 
recordkeeping section to specify that candidates, and those paying for 
travel by candidates and candidate representatives, must follow the 
current recordkeeping requirements for persons paying the normal and 
usual charter rate for air travel. See proposed 11 CFR 100.93(j)(3)(i) 
(referencing the recordkeeping requirements in proposed paragraph 
(j)(2) of the same section). These requirements are intended to 
preserve information, such as the tail number of an aircraft and the 
number of campaign travelers, that would enable the Commission to 
determine whether the correct amount of reimbursement was provided for 
specific flights. To avoid any inference that candidates would be 
permitted to pay the first class or coach rates, proposed paragraphs 
(j)(1) and (j)(2) would also be revised to expressly provide that 
candidates and person traveling on behalf of candidates would be 
governed by paragraph (j)(3), not (j)(1).
    Second, the Commission would require that a record of the written 
agreement required for aircraft owned in part by a candidate for 
Federal office or a member of his or her immediate family be maintained 
by the committee. The Commission seeks comment on the appropriate 
duration of this record retention requirement. See proposed 11 CFR 
100.93(j)(3)(ii). Where an aircraft is owned by an entity in which the 
candidate or a member of the candidate's immediate family owns an 
interest, this document would be required by proposed 11 CFR 100.93(g) 
to specify the proportionate use of the aircraft corresponding to the 
percentage of ownership of the candidate or member of the candidate's 
immediate family.
    The Commission seeks comments on these proposed revisions.

V. Use of Campaign Funds for Non-Commercial Travel--11 CFR 113.5

    In addition to the proposed revisions to the travel reimbursement 
regulations at 11 CFR 100.93, the Commission also proposes to add a new 
section 11 CFR 113.5 to implement the limit on expenditures for non-
commercial air travel contained in new 2 U.S.C. 439a(c).

A. Proposed Change of Title for 11 CFR Part 113

    Along with the proposed addition of new 11 CFR 113.5 implementing 
new 2 U.S.C. 439a(c), the Commission proposes to change the title of 
Part 113. The current title, ``Use of Campaign Accounts for Non-
Campaign Purposes,'' is insufficiently broad to encompass the subject 
matter of the proposed rule, which regulates a use of campaign funds 
for campaign purposes rather than for non-campaign purposes. The 
Commission proposes instead the broader title, ``Permitted and 
Prohibited Uses of Campaign Accounts,'' to capture the content of both 
the existing regulations in this part and that of the proposed rule.

 B. Proposed 11 CFR 113.5(a)--Rule for Presidential, Vice-Presidential 
and Senate Candidates

    Proposed 11 CFR 113.5(a)(1) reflects the general prohibition in new 
2 U.S.C. 439a(c) on the expenditure of funds by candidates for 
President, Vice-President or the Senate and their authorized committees 
and leadership PACs for aircraft flights, except in certain specified 
situations. The first situation is when air travel is taken on 
``commercial'' flights. See proposed 11 CFR 113.5(a)(1). The second 
situation is when air travel is taken on ``non-commercial'' flights and 
the candidate or his or her authorized committee reimburses the 
provider of the airplane in the amount of the candidate's pro rata 
share of the fair market value of the flight within seven days of the 
flight. See proposed 11 CFR 113.5(a)(2). Proposed 11 CFR 113.5(a)(1) 
and (2) provide cross-references to definitions of the terms 
``commercial travel,'' ``non-commercial travel,'' and ``pro rata share 
of the fair market value of the flight'' in proposed 11 CFR 
100.93(a)(3)(iv), (v) and (vi).
    Proposed 11 CFR 113.5(a) includes restrictions on expenditures by 
leadership PACs of Senate, presidential, and vice-presidential 
candidates, to conform to the Commission's proposed language in 11 CFR 
100.93(c)(1).
    The Commission requests comments on all of the above aspects of 
proposed 11 CFR 113.5(a).

C. Proposed 11 CFR 113.5(b)--Rule for House Candidates

    New 2 U.S.C. 439a(c)(2) contains the applicable rule for candidates 
for election to office in the House of Representatives. Unlike 
candidates for President, Vice-President, or the U.S. Senate, House 
candidates, including authorized committees and leadership PACs of such 
candidates, are prohibited from spending campaign funds on private, 
non-commercial air travel. Instead, House candidates may spend campaign 
funds on air travel only when the flight is commercial or when the 
flight is operated by an entity of the Federal government or of a State 
government (including local governments). Other than travel permitted 
under 11 CFR 100.92(g), because House candidates, their authorized 
committees, and their leadership PACs are prohibited from spending 
campaign funds on non-commercial travel, the proposed rule also 
prohibits House candidates from accepting in-kind contributions in the 
form of non-commercial air travel. Proposed 11 CFR 113.15(b).

[[Page 59963]]

    Proposed 11 CFR 113.5(b)(1) and (2) implement these provisions. 
Proposed subparagraph (1) contains the same ``commercial exception'' as 
is set forth in proposed 11 CFR 113.5(a)(2). Travel on government-
operated aircraft is reflected in proposed subparagraph (2).

D. Proposed 11 CFR 113.5(c)--Exception to Rules for Aircraft Owned or 
Leased by Candidate or Immediate Family Member

    The restrictions on expenditures in the amendments to 2 U.S.C. 439a 
do not apply to travel aboard aircraft that are ``owned or leased'' by 
the candidate or the candidate's immediate family member, and aircraft 
owned or leased by any entity in which the candidate or a member of the 
candidate's immediate family ``has an ownership interest,'' provided 
that the entity is not a ``public corporation'' and the use of the 
aircraft is not ``more than the candidate's or immediate family 
member's proportionate share of ownership allows.'' 2 U.S.C. 
439a(c)(3)(A).
    The Commission proposes to implement this exception in proposed 11 
CFR 113.5(c). Proposed 11 CFR 113.5(c)(1) contains the exceptions. 
Proposed 11 CFR 113.5(c)(2) states that candidates and immediate family 
members will be considered to own or lease aircraft under the 
conditions described in proposed 11 CFR 100.93(g)(2), namely, when 
there is an ownership interest in an entity other than a public 
corporation that owns the aircraft. Proposed 11 CFR 113.5(c)(3) 
contains a cross-reference to proposed 11 CFR 100.93(g)(3), which 
defines the term ``immediate family member'' in accordance with new 2 
U.S.C. 439a(c)(3)(B).

E. Proposed 11 CFR 113.5(d)--Unreimbursed Air Travel as Contribution

    Proposed 11 CFR 113.5(d) states that the unreimbursed value of 
transportation provided to any campaign traveler, as defined in 
proposed 11 CFR 100.93(a)(3)(i), is an in-kind contribution from the 
service provider to the candidate or political committee on whose 
behalf, or with whom, the campaign traveler traveled, and that such 
contributions are subject to the limits and prohibitions of the Act.

VI. Publicly-Financed Presidential and Vice-Presidential Candidates--11 
CFR 9004.7 & 9034.7

    Although new 2 U.S.C. 439a(c) does not amend either the 
Presidential Election Campaign Fund Act (Fund Act) (26 U.S.C. 9001 et 
seq.) or the Presidential Primary Matching Payment Account Act 
(Matching Payment Act) (26 U.S.C. 9031 et seq.), the Commission 
proposes to make certain amendments to its regulations implementing 
these laws to conform to the changes it proposes to make to 11 CFR 
100.93.
    Sections 9004.7 and 9034.7 are identically worded regulations 
promulgated under the authority of the Fund Act and the Matching 
Payment Act, respectively, and contain cross-references to 11 CFR 
100.93. Both regulations prescribe the procedures that publicly funded 
primary and general election presidential campaigns must follow in 
attributing their travel expenses to campaign-related and to non-
campaign-related activities. The Commission proposes the following 
technical amendments to conform these regulations to proposed 11 CFR 
100.93:

A. Aircraft

    Proposed 11 CFR 9004.7(b)(5)(i), (iii), and (v), and 11 CFR 
9004.7(b)(8) replace the word ``airplane'' with the word ``aircraft.'' 
These changes conform the regulations to the scope of new 2 U.S.C. 
439a(c) and to proposed 11 CFR 100.93, as well as to proposed 11 CFR 
113.5.

B. Recordkeeping Requirements

    Currently, 11 CFR 9004.7(b)(5)(v) and 11 CFR 9034.7(b)(5)(v) 
require the authorized committees of presidential and vice-presidential 
candidates to maintain documentation of the lowest unrestricted non-
discounted airfare as required in 11 CFR 100.93(i)(1) or (2). Sections 
100.93(i)(1) and (2) contain recordkeeping requirements relating to 
rates of reimbursement prescribed in 11 CFR 100.93(c) and (e). Proposed 
11 CFR 100.93 replaces the current reimbursement rate for non-
commercial air travel by presidential and vice-presidential candidates 
with a rate based on the ``pro rata share of the fair market value'' of 
the flight and sets out the corresponding recordkeeping requirements in 
proposed 11 CFR 100.93(j)(3). The Commission proposes to change 11 CFR 
9004.7(b)(5)(v) and 11 CFR 9034.7(b)(5)(v) to conform the recordkeeping 
requirements to those proposed in 11 CFR 100.93(j)(3). The Commission 
also proposes to make a conforming amendment to the final sentence in 
this provision, which addresses recordkeeping requirements for travel 
on other conveyances. Recordkeeping requirements in such cases would be 
addressed in proposed 11 CFR 100.93(j)(4). Thus, the Commission 
proposes to require recordkeeping in accordance with proposed 11 CFR 
100.93(j)(4).

C. 11 CFR 9004.7(b)(8) and 11 CFR 9034.7(b)(8)--Scope

    Sections 9004.7(b)(8) and 9034.7(b)(8) identify the scope of 11 CFR 
100.93 in terminology used in current section 100.93. Specifically, the 
provisions speak in terms of aircraft that are ``licensed for 
compensation or hire'' under various FAA certification authorities. The 
Commission proposes to change this language to conform to the proposed 
language used in new 2 U.S.C. 439a(c) and in proposed 11 CFR 100.93. 
Proposed 11 CFR 9004.7(b)(8) and 11 CFR 9034.7(b)(8) state that travel 
on non-commercial airplanes is governed by 11 CFR 100.93 and that the 
term ``non-commercial'' is defined in accordance with proposed section 
11 CFR 100.93(a)(3)(v).
    The Commission invites comments from the public concerning any of 
the proposals outlined above. The Commission also invites comments from 
the public regarding any additional changes that should be made to 11 
CFR 100.5(e), 100.93, 113.5, 9004.7(b)(5)(i), (iii), (v) or (b)(8), or 
9034.7(b)(5)(i), (iii), (v), or (b)(8).

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

    The Commission certifies that the attached proposed rules, if 
promulgated, will not have a significant economic impact on a 
substantial number of small entities. The basis for this certification 
is that few, if any, small entities would be affected by these final 
rules, which impose obligations only on Federal candidates, their 
campaign committees, other individuals traveling in connection with a 
Federal election, and the political committees on whose behalf this 
travel is conducted. Federal candidates, their campaign committees, and 
most political party committees and other political committees entitled 
to rely on these rules are not small entities. These rules would 
generally clarify or supplement existing rules and are largely intended 
to implement a statutory directive and simplify the process of 
determining reimbursement rates. The rules would not impose compliance 
costs on any service providers (as defined in the rules) that are small 
entities so as to cause a significant economic impact. With respect to 
the determination of the amount of reimbursement for travel, the new 
rules would merely reflect an extension of existing similar rules. To 
the extent that operators of air-taxi services or on-demand air charter 
services are small entities indirectly impacted by these rules, any 
economic

[[Page 59964]]

effects would result from the travel choices of individual candidates 
or other travelers rather than Commission requirements and, in any 
event, are likely to be less than $100,000,000 per year.

List of Subjects

11 CFR Part 100

    Elections.

11 CFR Part 113

    Campaign funds, and political candidates.

11 CFR Part 9004

    Campaign funds.

11 CFR Part 9034

    Campaign funds, Reporting and recordkeeping requirements.
    For the reasons set out in the preamble, the Federal Election 
Commission proposes to amend subchapters A, E, and F of chapter 1 of 
title 11 of the Code of Federal Regulations as follows:

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

    1. The authority citation for part 100 would be revised to read as 
follows:

    Authority: 2 U.S.C. 431, 434, 438(a)(8), and 439a(c).

    2. Section 100.5 would be amended by adding a new paragraph (e)(6) 
to read as follows:


Sec.  100.5  Political committee (2 U.S.C. 431 (4), (5), (6)).

* * * * *
    (e) The following are examples of political committees:
* * * * *
    (6) Leadership PAC. Leadership PAC means a political committee that 
is directly or indirectly established, financed, maintained or 
controlled by a candidate for Federal office or an individual holding 
Federal office but which is not an authorized committee of the 
candidate or individual and which is not affiliated with an authorized 
committee of the candidate or individual, except that leadership PAC 
does not include a political committee of a political party.
* * * * *
    3. Section 100.93 is revised to read as follows:


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

    (a) Scope and definitions. (1) This section applies to all campaign 
travelers who use non-commercial travel
    (2) Campaign travelers who use commercial travel, such as a 
commercial airline flight, charter flight, taxi, or an automobile 
provided by a rental company, are governed by 11 CFR 100.52(a) and (d), 
not this section.
    (3) For the purposes of this section:
    (i) Campaign traveler means
    (A) Any candidate for Federal office or any individual traveling in 
connection with an election for Federal office on behalf of a candidate 
or political committee; or
    (B) Any member of the news media traveling with a candidate.
    (ii) Service provider means the owner of an aircraft or other 
conveyance, or a person who leases an aircraft or other conveyance from 
the owner or otherwise obtains a legal right to the use of an aircraft 
or other conveyance, and who uses the aircraft or other conveyance to 
provide transportation to a campaign traveler. For a jointly owned or 
leased aircraft or other conveyance, the service provider is the person 
who makes the aircraft or other conveyance available to the campaign 
traveler.
    (iii) Unreimbursed value means the difference between the value of 
the transportation service provided, as set forth in this section, and 
the amount of payment for that transportation service by the political 
committee or campaign traveler to the service provider within the time 
limits set forth in this section.
    (iv) Commercial travel means travel aboard:
    (A) An aircraft operated by an air carrier or commercial operator 
certificated by the Federal Aviation Administration, provided that the 
flight is required to be conducted under Federal Aviation 
Administration air carrier safety rules, or, in the case of travel 
which is abroad, by an air carrier or commercial operator certificated 
by an appropriate foreign civil aviation authority, provided that the 
flight is required to be conducted under air carrier safety rules; or
    (B) Other means of transportation operated for commercial passenger 
service
    (v) Non-commercial travel means travel aboard any conveyance that 
is not commercial travel, as defined in paragraph (a)(3)(iv) of this 
section.
    (b) General rule. (1) No contribution is made by a service provider 
to a candidate or political committee if:
    (i) Every candidate's authorized committee, leadership PAC, or 
other political committee on behalf of which the travel is conducted 
pays the service provider, within the required time, for the full value 
of the transportation, as determined in accordance with paragraphs (c), 
(d), (e) or (g) of this section, provided to all campaign travelers who 
are traveling on behalf of that candidate or political committee; or
    (ii) Every campaign traveler for whom payment is not made under 
paragraph (b)(1)(i) of this section pays the service provider for the 
full value of the transportation provided to that campaign traveler as 
determined in accordance with paragraphs (c), (d), (e) or (g) of this 
section. See 11 CFR 100.79 and 100.139 for treatment of certain 
unreimbursed transportation expenses incurred by individuals traveling 
on behalf of candidates, authorized committees, and political 
committees of political parties; and
    (iii) Every member of the news media traveling with a candidate for 
whom payment is not made under paragraph (b)(1)(i) of this section pays 
the service provider for the full value of his or her transportation as 
determined in accordance with paragraphs (d) or (e)(2) of this section.
    (2) Except as provided in 11 CFR 100.79, the unreimbursed value of 
transportation provided to any campaign traveler, as determined in 
accordance with paragraphs (c), (d) or (e) of this section, is an in-
kind contribution from the service provider to the candidate or 
political committee on whose behalf, or with whom, the campaign 
traveler traveled.
    (c) Travel on aircraft. When a campaign traveler uses aircraft for 
non-commercial travel, other than a government aircraft described in 
paragraph (e) of this section or an aircraft described in paragraph (g) 
of this section, reimbursement must be provided no later than seven (7) 
calendar days after the date the flight began at one of the following 
rates to avoid the receipt of an in-kind contribution:
    (1) Travel by or on behalf of Senate, presidential, or vice-
presidential candidates. A Senate, presidential, or vice-presidential 
candidate traveling on his own behalf, or any person traveling on 
behalf of such candidate, the candidate's authorized committee, or the 
candidate's leadership PAC, must pay the pro rata share per represented 
candidate of the normal and usual charter fare or rental charge for 
travel on a comparable aircraft of comparable size. The pro rata share 
shall be calculated by dividing the normal and usual charter fare or 
rental charge by the number of different candidates represented on the 
flight, regardless of the total number of campaign travelers or other 
passengers.
    (2) House candidates. Except as otherwise provided in paragraphs 
(e) and (g) of this section, a campaign traveler who is a candidate for 
election

[[Page 59965]]

for the office of Representative in, or Delegate or Resident 
Commissioner to, the Congress, or a person traveling on behalf of any 
such candidate or any authorized committee or leadership PAC of such 
candidate, is prohibited from non-commercial travel on behalf of any 
such candidate or any authorized committee or leadership PAC of such 
candidate.
    (3) Other campaign travelers. No reimbursement is required for 
travel by campaign travelers not covered by paragraphs (c)(1) or (c)(2) 
of this section if that travel is required to be reimbursed by a 
candidate, or any authorized committee or leadership PAC of a 
candidate, pursuant to paragraphs (c)(1) or (c)(2) of this section. 
Otherwise, a campaign traveler not covered by paragraphs (c)(1) or 
(c)(2) of this section, or the political committee on whose behalf the 
travel is conducted, must pay the service provider the pro rata share 
per represented committee of the normal and usual charter fare or 
rental charge for travel on a comparable airplane of comparable size. 
The pro rata share shall be calculated by dividing the normal and usual 
charter fare or rental charge by the number of different committees 
represented on the flight, regardless of the total number of campaign 
travelers or other passengers.
    (d) Other means of transportation. If a campaign traveler uses any 
means of transportation other than an aircraft, including an 
automobile, or train, or boat, the campaign traveler, or the political 
committee on whose behalf the travel is conducted, must pay the service 
provider within thirty (30) calendar days after the date of receipt of 
the invoice for such travel, but not later than sixty (60) calendar 
days after the date the travel began, at the normal and usual fare or 
rental charge for a comparable commercial conveyance of sufficient size 
to accommodate all campaign travelers, including members of the news 
media traveling with a candidate, and security personnel, if 
applicable.
    (e) Government conveyances. (1) If a campaign traveler uses an 
aircraft that is provided by the Federal government, or by a State or 
local government, the campaign traveler, or the political committee on 
whose behalf the travel is conducted, must pay the governmental entity 
either:
    (i) The pro rata share per represented candidate of the normal and 
usual charter fare or rental charge for the flight on a comparable 
aircraft of sufficient size to accommodate all campaign travelers. The 
pro rata share shall be calculated by dividing the normal and usual 
charter fare or rental charge by the number of different candidates 
represented on the flight, regardless of the total number of campaign 
travelers or other passengers. For purposes of this paragraph, the 
comparable aircraft need not accommodate any authorized or required 
government personnel and equipment; or
    (ii) The private traveler reimbursement rate, as specified by the 
governmental entity providing the aircraft, per campaign traveler.
    (2) If a campaign traveler uses a conveyance, other than an 
aircraft, that is provided by the Federal government, or by a State or 
local government, the campaign traveler, or the political committee on 
whose behalf the travel is conducted, must pay the government entity in 
accordance with paragraph (d) of this section.
    (f) Date and public availability of payment rate. For purposes of 
paragraphs (c), (d), (e), and (g) of this section, the payment rate 
must be the rate available to the general public for the dates traveled 
or within seven (7) calendar days thereof. The payment rate must be 
determined by the time the payment is due under paragraph (c), (d), (e) 
or (g) of this section.
    (g) Aircraft owned by a candidate or an immediate member of a 
candidate's family.
    (1) For non-commercial travel by a candidate for Federal office, or 
a person traveling on behalf of such candidate, on an aircraft owned or 
leased by a candidate or an immediate family member of the candidate, 
the candidate's authorized committee must pay
    (i) In the case of travel between cities served by regularly 
scheduled first-class commercial airline service, the lowest 
unrestricted and non-discounted first-class airfare;
    (ii) In the case of travel between a city served by regularly 
scheduled coach commercial airline service, but not regularly scheduled 
first-class commercial airline service, and a city served by regularly 
scheduled coach commercial airline service (with or without first-class 
commercial airline service), the lowest unrestricted and non-discounted 
coach airfare; or
    (iii) In the case of travel to or from a city not served by 
regularly scheduled commercial airline service, the rate for Senate and 
Presidential campaign travelers in paragraph (c)(1) of this section.
Paragraph (g)(1)--Alternative 1 (Incremental Cost Alternative)
    (g) Aircraft owned by a candidate or an immediate member of a 
candidate's family.
    (1) For non-commercial travel by a candidate for Federal office, or 
a person traveling on behalf of such candidate, on an aircraft owned or 
leased by a candidate or an immediate family member of the candidate, 
the candidate's authorized committee must pay the incremental cost of 
such travel. The incremental cost includes, but is not limited to, the 
cost of fuel and crew, but does not include depreciation costs.
Paragraph (g)(1)--Alternative 2--(Actual Value Alternative)
    (g) Aircraft owned by a candidate or an immediate member of a 
candidate's family.
    (1) For non-commercial travel by a candidate for Federal office, or 
a person traveling on behalf of such candidate, on an aircraft owned or 
leased by a candidate or an immediate family member of the candidate, 
the candidate's authorized committee must pay, in the case of travel on 
an aircraft that is owned or leased under a shared-ownership or other 
time-share arrangement, the hourly, mileage, or other applicable rate 
charged the candidate, corporation, or immediate family member for the 
costs of the travel.
    (2) A candidate, or an immediate family member of the candidate, 
will be considered to own or lease an aircraft under paragraph (g)(1) 
of this section if the candidate or the immediate family member of the 
candidate has an ownership interest in an entity that owns the 
aircraft, provided that the entity is not a corporation with publicly 
traded shares and that the owning entity specifies in writing the 
amount of use of the aircraft to which that ownership interest is 
entitled.
    (3) For the purposes of this section, an ``immediate family 
member'' of a candidate is the father, mother, son, daughter, brother, 
sister, husband, wife, father-in-law, or mother-in-law of the 
candidate.
    (h) Preemption. In all respects, State and local laws are preempted 
with respect to travel in connection with a Federal election to the 
extent they purport to supplant the rates or timing requirements of 11 
CFR 100.93.
    (i) Reporting. (1) In accordance with 11 CFR 104.13, a political 
committee on whose behalf the unreimbursed travel is conducted must 
report the receipt of an in-kind contribution and the making of an 
expenditure under paragraph (b)(2) of this section.
    (2) When reporting a disbursement for travel services in accordance 
with this section, a political committee on whose behalf the travel is 
conducted must report the actual dates of travel for

[[Page 59966]]

which the disbursement is made in the ``purpose of disbursement'' 
field.
    (j) Recordkeeping. (1) Except as provided in paragraph (j)(3) of 
this section, for travel by aircraft between cities served by regularly 
scheduled first-class or coach commercial airline service, or for 
travel to or from a military base on a government airplane, the 
political committee on whose behalf the travel is conducted shall 
maintain documentation of:
    (i) The service provider and tail number (or other unique 
identifier for military aircraft) of the aircraft used;
    (ii) An itinerary showing the departure and arrival cities and the 
date(s) of departure and arrival, a list of all passengers on such 
trip, along with a designation of which passengers are and which are 
not campaign travelers; and
    (iii) The lowest unrestricted 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) Except as provided in paragraph (j)(3) of this section, for 
travel by aircraft to or from a city not served by regularly scheduled 
commercial airline service, the candidate or political committee on 
whose behalf the travel is conducted shall maintain documentation of:
    (i) The service provider and the size, model, make and tail number 
(or other unique identifier for military aircraft) of the aircraft 
used;
    (ii) An itinerary showing the departure and arrival cities and the 
date(s) of departure and arrival, a list of all passengers on such 
trip, along with a designation of which passengers are and which are 
not campaign travelers or security personnel; and
    (iii) The rate for the comparable charter aircraft available in 
accordance with paragraphs (c), (e) and (f) of this section, including 
the airline, charter or air taxi operator, and travel service, if any, 
offering that fare to the public, and the dates on which the rates are 
based.
    (3) For non-commercial travel on aircraft by any candidate for 
Federal office, or a person traveling on behalf of such candidate, the 
candidate's authorized committee, or the candidate's leadership PAC, 
the candidate or political committee on whose behalf the travel is 
conducted shall maintain:
    (i) The documentation required by paragraph (j)(2)(i) through (iii) 
of this section, and
    (ii) Where the travel is aboard an aircraft owned in part by the 
candidate or an immediate family member of the candidate, the document 
specifying the amount of use of the aircraft corresponding to the 
candidate's or an immediate family member's ownership interest in the 
aircraft, as required by paragraph (g) of this section.
    (4) For travel by other conveyances, the political committee on 
whose behalf the travel is conducted shall maintain documentation of:
    (i) The service provider and the size, model and make of the 
conveyance used;
    (ii) An itinerary showing the departure and destination locations 
and the date(s) of departure and arrival, a list of all passengers on 
such trip, along with a designation of which passengers are and which 
are not campaign travelers or security personnel; and
    (iii) The commercial fare or rental charge available in accordance 
with paragraphs (d) and (f) of this section for a comparable commercial 
conveyance of sufficient size to accommodate all campaign travelers 
including members of the news media traveling with a candidate, and 
security personnel, if applicable.

PART 113--PERMITTED AND PROHIBITED USES OF CAMPAIGN ACCOUNTS

    4. The authority citation for part 113 would continue to read as 
follows:

    Authority: 2 U.S.C. 432(h), 438(a)(8), 439a, 441a.

    5. The heading to part 113 would be revised to read as set forth 
above.
    6. Part 113 would be amended by adding a new Sec.  113.5 to read as 
follows:


Sec.  113.5  Restrictions on use of campaign funds for flights on 
noncommercial aircraft (2 U.S.C. 439a(c)).

    (a) Presidential, vice-presidential and Senate candidates. 
Notwithstanding any other provision of the Act or Commission 
regulations, a presidential, vice-presidential, or Senate candidate, 
and any authorized committee or leadership PAC of such candidate, shall 
not make any expenditure for travel on an aircraft unless the flight is
    (1) Commercial travel as provided in 11 CFR 100.93(a)(3)(iv); or
    (2) Noncommercial travel as provided in 11 CFR 100.93(a)(3)(v), and 
the pro rata share of the fair market value of such a flight, as 
provided in 11 CFR 100.93(c), is paid by the candidate, the authorized 
committee, or other political committee on whose behalf the travel is 
conducted, to the owner, lessee, or other person who provides the 
aircraft within seven days after the date on which the flight is taken.
    (b) House candidates. Notwithstanding any other provision of the 
Act or Commission regulations, a candidate for the office of 
Representative in, or Delegate or Resident Commissioner to, the 
Congress, and any authorized committee or leadership PAC of such 
candidate, shall not make any expenditures, or receive any in-kind 
contribution, for travel on an aircraft unless the flight is
    (1) Commercial travel as provided in 11 CFR 100.93(a)(3)(iv); or
    (2) Provided by the Federal government or by a State or local 
government.
    (c) Exception for aircraft owned or leased by candidates and 
immediate family members of candidates. (1) Paragraphs (a) and (b) of 
this section do not apply to flights on aircraft owned or leased by the 
candidate, or by an immediate family member of the candidate, provided 
that the candidate does not use the aircraft more than the candidate's 
or immediate family member's proportionate share of ownership allows.
    (2) A candidate, or an immediate family member of the candidate, 
will be considered to own or lease an aircraft under the conditions 
described in 11 CFR 100.93(g)(2).
    (3) An ``immediate family member'' is defined in 11 CFR 
100.93(g)(3).
    (d) In-kind contribution. Except as provided in 11 CFR 100.79, the 
unreimbursed value of transportation provided to any campaign traveler 
is an in-kind contribution from the service provider to the candidate 
or political committee on whose behalf, or with whom, the campaign 
traveler traveled. Such contributions are subject to the reporting 
requirements, limitations and prohibitions of the Act.

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

    7. The authority citation for part 9004 would continue to read as 
follows:

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

    8. Section 9004.7 would be amended by revising paragraphs 
(b)(5)(i), (iii), and (v) and (b)(8) to read as follows:


Sec.  9004.7  Allocation of travel expenditures.

* * * * *
    (b) * * *
    (5)(i) If any individual, including a candidate, uses a government 
aircraft for campaign-related travel, the candidate's authorized 
committee shall pay the appropriate government entity an amount equal 
to the applicable rate set forth in 11 CFR 100.93(e).
* * * * *
    (iii) If any individual, including a candidate, uses a government

[[Page 59967]]

conveyance, other than an aircraft, for campaign-related travel, the 
candidate's authorized committee shall pay the appropriate government 
entity an amount equal to the amount required under 11 CFR 100.93(d).
* * * * *
    (v) For travel by aircraft, the committee shall maintain 
documentation as required by 11 CFR 100.93(j)(3) in addition to any 
other documentation required in this section. For travel by other 
conveyances, the committee shall maintain documentation of the 
commercial rental rate as required by 11 CFR 100.93(j)(4) in addition 
to any other documentation required in this section.
* * * * *
    (8) Non-commercial travel, as defined in 11 CFR 100.93(a)(3)(v), on 
aircraft, and travel on other means of transportation not operated for 
commercial passenger service, is governed by 11 CFR 100.93.

PART 9034--ENTITLEMENTS

    9. The authority citation for part 9034 would continue to read as 
follows:

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

    10. Section 9034.7 would be amended by revising paragraphs (b)(5) 
(i), (iii), and (v) and (b)(8) to read as follows:


Sec.  9034.7  Allocation of travel expenditures.

* * * * *
    (b) * * *
    (5)(i) If any individual, including a candidate, uses a government 
aircraft for campaign-related travel, the candidate's authorized 
committee shall pay the appropriate government entity an amount not 
less than the applicable rate set forth in 11 CFR 100.93(e).
* * * * *
    (iii) If any individual, including a candidate, uses a government 
conveyance, other than an aircraft, for campaign-related travel, the 
candidate's authorized committee shall pay the appropriate government 
entity an amount equal to the amount required under 11 CFR 100.93(d).
* * * * *
    (v) For travel by aircraft, the committee shall maintain 
documentation as required by 11 CFR 100.93(j)(3) in addition to any 
other documentation required in this section. For travel by other 
conveyances, the committee shall maintain documentation of the 
commercial rental rate as required by 11 CFR 100.93(j)(4) in addition 
to any other documentation required in this section.
* * * * *
    (8) Non-commercial travel on aircraft, and travel on other means of 
transportation not operated for commercial passenger service is 
governed by 11 CFR 100.93.

    Dated: October 18, 2007.
Robert D. Lenhard,
Chairman, Federal Election Commission.
[FR Doc. E7-20901 Filed 10-22-07; 8:45 am]
BILLING CODE 6715-01-P