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



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

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

[[Page 63951]]



FEDERAL ELECTION COMMISSION

11 CFR Parts 100, 113, 9004, 9034

[Notice 2009-27]


Campaign Travel

AGENCY: Federal Election Commission.

ACTION: Final rules.

-----------------------------------------------------------------------

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

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

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

SUPPLEMENTARY INFORMATION: The Commission is promulgating several 
changes to its rules in order to implement section 601 of Public Law 
110-81, 121 Stat. 735, the ``Honest Leadership and Open Government Act 
of 2007'' (``HLOGA''). This provision of HLOGA became effective upon 
enactment on September 14, 2007. HLOGA amended the Federal Election 
Campaign Act of 1971, as amended (2 U.S.C. 431 et seq.) (``the Act'') 
by restricting, and in some cases prohibiting, the expenditure of 
campaign funds by candidates for Federal office for non-commercial 
travel aboard aircraft. See 2 U.S.C. 439a(c).
    The Commission is implementing this provision of HLOGA by adding 
new Sec.  113.5 to 11 CFR Part 113, which governs the expenditure of 
campaign funds by candidates for Federal office and their authorized 
political committees. In addition, the Commission is promulgating 
revisions to 11 CFR 100.93, which establishes an exception to the 
definition of ``contribution'' for non-commercial travel aboard 
aircraft by, or on behalf of, Federal candidates and political 
committees, if the candidates and political committees reimburse the 
service providers at specified rates. The revisions to 11 CFR 100.93 
apply to campaign travel by, or on behalf of, candidates for Federal 
office or leadership PACs of House candidates. As discussed below, the 
rules leave in place the required reimbursement rate structure imposed 
under the Commission's 2003 rules for travel by persons on behalf of 
other political committees, such as the staff of a political party 
committee, a nonconnected political committee, or a leadership PAC of a 
Senate or Presidential candidate. The revisions to 11 CFR 100.93 are 
also incorporated by reference into the Commission's rules governing 
travel by publicly funded presidential candidates. The changes in these 
final rules, however, do not substantively alter the Commission's 
treatment of travel by means of transportation other than aircraft, or 
of travel aboard commercial airliners or charter flights.
    The Notice of Proposed Rulemaking (``NPRM'') on which these final 
rules are based was published in the Federal Register on October 23, 
2007. 72 FR 59953 (Oct. 23, 2007). The comment period closed on 
November 13, 2007. The Commission received eight comments from eleven 
commenters.\1\ The comments are available at http://www.fec.gov/law/law_rulemakings.shtml#travel07. Because no commenters requested the 
opportunity to testify, the Commission did not hold a hearing on this 
rulemaking.
---------------------------------------------------------------------------

    \1\ These comments included a written comment from the Internal 
Revenue Service stating that it did not find any conflict between 
its regulations and the Commission's proposed rules.
---------------------------------------------------------------------------

    Under the Administrative Procedure Act, 5 U.S.C. 553(d), and the 
Congressional Review of Agency Rulemaking Act, 5 U.S.C. 801(a)(1), 
agencies must submit final rules to the Speaker of the House of 
Representatives and the President of the Senate, and publish them in 
the Federal Register at least thirty calendar days before they take 
effect. In addition, 26 U.S.C. 9009(c) requires that any rules or 
regulations prescribed by the Commission to carry out the provisions of 
the Presidential Election Campaign Fund Act be transmitted to the 
Speaker of the House of Representatives and the President of the Senate 
thirty legislative days before they are finally promulgated. The final 
rules that follow were transmitted to Congress on November 24, 2009.

Explanation and Justification

I. Background

A. Statutory and Regulatory Framework

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

[[Page 63952]]

providing the travel service. Such in-kind contributions would be 
prohibited if provided by certain entities, including corporations, 
labor organizations, Federal contractors, and foreign nationals. See 2 
U.S.C. 441b, 441c, and 441e; 11 CFR 110.20, 114.2(b), and 115.2. If the 
in-kind contributions are from permissible sources, they nevertheless 
would be subject to the contribution limits of the Act and Commission 
regulations. See 2 U.S.C. 441a-441k; 11 CFR parts 110, 114, and 115.
1. Promulgation of 11 CFR 100.93 in 2003--Payment for Non-Commercial 
Travel
    The usual and normal charge for travel aboard a commercial aircraft 
is the publicly available price for a ticket, and the usual and normal 
charge for a chartered aircraft is the publicly available charter or 
lease rate. The usual and normal charge for travel aboard a non-
commercial flight, however, may not be as apparent. For example, there 
is generally not a ticket price for a seat aboard a non-commercial 
aircraft that may be operated primarily for the travel of the owner and 
invited guests. Because candidates for Federal office traveled on these 
privately operated aircraft, the Commission's regulations provided 
specific guidance about the rate of reimbursement that candidates and 
others had to pay to avoid receiving an excessive or a prohibited in-
kind contribution for travel aboard such aircraft.
    On December 15, 2003, the Commission promulgated final rules adding 
11 CFR 100.93. See Final Rules and Explanation and Justification for 
Travel on Behalf of Candidates and Political Committees, 68 FR 69583 
(Dec. 15, 2003) (``2003 travel rules'' or ``2003 E&J''). The 2003 
travel rules established an exception from the definition of 
``contribution'' for payments at specified rates for non-commercial 
travel in connection with a Federal election. Under the 2003 travel 
rules, the payment required for non-commercial air travel varied among 
the first-class, coach, or charter rate, depending on whether the 
travel occurred between cities served by regularly scheduled commercial 
airline service, and whether that service was available at a first-
class or coach rate. See 11 CFR 100.93(a)(3)(i) and (c) (2004).
2. Revisions in 2003 to 11 CFR 9004.7 and 9034.7--Travel by 
Presidential and Vice-Presidential Candidates Accepting Public Funds
    Candidates in the presidential primary elections may qualify to 
receive partial public funding in the form of matching payments from 
the Federal government. Additionally, presidential general election 
candidates may qualify to receive outright grants of public funds. In 
both cases, the presidential candidates must agree, among other things, 
to use the public funds they receive solely for ``qualified campaign 
expenses'' and not to exceed specified expenditure limits. 2 U.S.C. 
441a(b)(1)(A) and (B); 26 U.S.C. 9003(b) and (c), and 9033(b).
    As part of the 2003 travel rules, the Commission promulgated 
separate regulations at 11 CFR 9004.7(b)(5)(i), (v), and (b)(8), and 
9034.7(b)(5)(i), (v), and (b)(8), setting forth the appropriate 
reimbursement rates that publicly funded candidates must use for 
campaign-related travel on non-commercial transportation. While 11 CFR 
100.93 treats the underpayment for travel as an in-kind contribution, 
11 CFR 9004.7 and 9034.7 address the extent to which payments for 
campaign-related travel constitute ``qualified campaign expenses.'' The 
2003 travel rules revised the rates and recordkeeping requirements for 
presidential and vice-presidential candidates accepting public funds to 
conform them to the new rates in 11 CFR 100.93.

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

    HLOGA amended the Act to prohibit House candidates, their 
authorized committees, and their leadership PACs \2\ from making any 
expenditure \3\ for non-commercial travel on aircraft, with an 
exception for travel on government-operated aircraft and aircraft owned 
or leased by a candidate or an immediate family member of the 
candidate. See 2 U.S.C. 439a(c)(2) and (3). HLOGA also specified new 
reimbursement rates that presidential, vice-presidential, and Senate 
candidates must pay for non-commercial campaign travel on aircraft. See 
2 U.S.C. 439a(c)(1). The reimbursement rates for these types of travel 
differ from those contained in the Commission's 2003 travel rules, 
which addressed non-commercial travel on aircraft by all political 
committees, including political party committees, separate segregated 
funds, nonconnected political committees, and other political 
committees. HLOGA did not, however, affect campaign travel on 
commercial flights, which all candidates must still reimburse at the 
``usual and normal charge.'' See 11 CFR 100.52(a) and (d), and 
100.93(a)(2).
---------------------------------------------------------------------------

    \2\ The NPRM proposed a definition of ``leadership PAC'' to 
implement section 204(a) of HLOGA, 2 U.S.C. 434(i)(8)(B). NPRM at 
59954-55, 59964. The Commission subsequently adopted a definition of 
``leadership PAC'' at 11 CFR 100.5(e)(6) as part of a separate 
rulemaking governing the reporting of contributions bundled by 
lobbyists, registrants and the PACs of lobbyists and registrants. 
See Reporting Contributions Bundled by Lobbyists, Registrants and 
the PACs of Lobbyists and Registrants, 74 FR 7285, 7286 (Feb. 17, 
2009). This definition became effective on March 19, 2009. 
Accordingly, the definition of ``leadership PAC'' is not addressed 
in these final rules.
    \3\ An ``expenditure'' includes any payment ``made by any person 
for the purpose of influencing any election for Federal office.'' 2 
U.S.C. 431(9)(A)(i).
---------------------------------------------------------------------------

III. Revisions to 11 CFR 100.93--Travel by Aircraft or Other Means of 
Transportation

    The Commission is amending 11 CFR 100.93 to implement HLOGA's 
provisions requiring candidates and certain political committees to pay 
for non-commercial air travel at a specified rate to avoid the receipt 
of an excessive or a prohibited in-kind contribution.\4\
---------------------------------------------------------------------------

    \4\ The intent of section 601 of HLOGA was frequently 
characterized by its sponsors as an effort to end subsidization of 
air travel provided by corporations and others to candidates, and 
thereby reduce the potential for corruption or the appearance 
thereof. See, e.g., 153 Cong. Rec. S263 (daily ed. Jan. 1, 2007) 
(statement of Sen. Obama) (``It would be one thing if Congressmen 
and Senators paid the full rate for these flights, but we don't''), 
153 Cong. Rec. S267 (daily ed. Jan. 9, 2007) (statement of Sen. 
Feingold) (``Any legislation on corporate jets must include campaign 
trips as well as official travel because one thing is for certain--
the lobbyist for the company that provides the jet is likely to be 
on the flight, whether it is taking you to see a factory back home 
or a fundraiser for your campaign.''), 153 Cong. Rec. S320 (daily 
ed. Jan. 10, 2007) (statement of Sen. Lieberman) (``When a Member of 
Congress or a candidate for Federal office uses a private plane, the 
ethics rules, as well as the Federal Election Commission rules, 
require payment to the owner of the plane equivalent to a first-
class commercial ticket * * * The Reid amendment would eliminate 
that loophole * * *''), and 153 Cong. Rec. S10692 (daily ed. Aug. 2, 
2007) (statement of then Sen. Obama).
---------------------------------------------------------------------------

    The Commission is otherwise retaining 11 CFR 100.93 intact, except 
as identified below. The explanations for the purpose and provisions of 
11 CFR 100.93 were set out in the 2003 E&J and continue to apply unless 
addressed in the following discussion. In the NPRM, the Commission 
sought comments on the overall structure of 11 CFR 100.93. None of the 
commenters called for a change in the structure or general function of 
the section.

A. 100.93(a)--Scope and Definitions

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

[[Page 63953]]

14 CFR 1.1. The term ``aircraft'' includes helicopters, which the 
Commission's 2003 travel rules had grouped with buses and conveyances 
other than airplanes. See 11 CFR 100.93(a)(3)(ii) (2004) (definition of 
``service provider'' focuses on ``person who makes the airplane or 
other conveyance available''), 11 CFR 100.93(c) (2004) (``travel by 
airplane''), and 11 CFR 100.93(d) (``other means of transportation'' 
includes ``any other means of transportation'' and specifically lists 
helicopters). The primary impact of these changes is that travel aboard 
a helicopter now would be reimbursed at the rate required in 11 CFR 
100.93(c) (aircraft), rather than (d) (other conveyances), which was 
the case under the 2003 travel rules, as discussed below.
1. 11 CFR 100.93(a)(1) and (2)--Scope of 11 CFR 100.93
    The rule at 11 CFR 100.93 is intended to establish reimbursement 
rates for ``non-commercial travel'' in the absence of a usual and 
normal charge. 11 CFR 100.93(a)(1). When a usual and normal charge is 
readily ascertainable, such as a specified fee by route, mileage, or 
date and time of use, the travel is generally considered ``commercial 
travel'' and the usual and normal charge must be paid to avoid 
receiving an in-kind contribution. See 11 CFR 100.93(a)(2) and 
100.52(d)(1).
    The Commission's 2003 travel rules distinguished between commercial 
and non-commercial air travel based on the certification system of the 
Federal Aviation Administration (FAA). Specifically, the Commission's 
2003 travel rules applied to all airplanes not licensed by the FAA to 
operate for compensation or hire under 14 CFR parts 121, 129, or 135. 
See 11 CFR 100.93(a)(1)(i) (2004).
    HLOGA accomplishes the same result without explicit reference to 
specific FAA regulatory provisions. In order to simplify and align the 
Commission's regulations with HLOGA, the Commission is replacing its 
reliance on specific FAA regulatory provisions with the new terms 
``commercial travel'' and ``non-commercial travel,'' which are defined 
in new 11 CFR 100.93(a)(3)(iv) and (v) and explained below. None of the 
commenters opposed this change.
2. 11 CFR 100.93(a)(3)(i)--Definition of ``Campaign Traveler''
    The Commission also is making a change to the definition of 
``campaign traveler'' in 11 CFR 100.93(a)(3) to clarify that the term 
encompasses not only persons traveling on behalf of a candidate, but 
also candidates who travel on behalf of their own campaigns. In the 
NPRM, the Commission proposed amending the definition of ``campaign 
traveler'' to include ``[a]ny candidate for Federal office,'' as well 
as ``any individual traveling in connection with an election for 
Federal office on behalf of a candidate or political committee'' and 
``[a]ny member of the news media traveling with a candidate.'' See 
proposed 11 CFR 100.93(a)(3)(i). The Commission received one comment in 
support of the proposed change, and no comments in opposition.
    The Commission is adopting the proposed change along with one 
further revision to clarify that a candidate is a ``campaign traveler'' 
only when ``traveling in connection with an election for Federal 
office.'' The term ``campaign traveler'' in revised 11 CFR 100.93 does 
not include Members of Congress when they engage in official travel, or 
candidates when they engage in personal travel or any other travel that 
is not in connection with an election for Federal office. Security 
personnel, including government-provided security personnel (such as 
the Secret Service), shall be treated as campaign travelers when 
traveling in connection with a Federal election on behalf of a 
candidate or a political committee. However, government-provided 
security personnel are not included when determining a ``comparable 
aircraft of sufficient size to accommodate all campaign travelers'' 
under 11 CFR 100.93(e)(1)(i), as discussed below.
3. 11 CFR 100.93(a)(3)(iv) and (v)--Definitions of ``Commercial 
Travel'' and ``Non-Commercial Travel''
    The definition of ``commercial travel'' in new 11 CFR 
100.93(a)(3)(iv)(A) corresponds to the new statutory language of HLOGA: 
Travel aboard an aircraft ``operated by an air carrier or commercial 
operator certificated by the Federal Aviation Administration and the 
flight is required to be conducted under air carrier safety rules, or, 
in the case of travel which is abroad, by an air carrier or commercial 
operator certificated by an appropriate foreign civil aviation 
authority and the flight is required to be conducted under air carrier 
safety rules.'' \5\ 2 U.S.C. 439a(c)(1) and (2). The definition of 
``non-commercial travel'' in 11 CFR 100.93(a)(3)(v) encompasses all air 
travel not included in the definition of ``commercial travel.'' These 
definitions are unchanged from the NPRM.
---------------------------------------------------------------------------

    \5\ Both ``air carrier'' and ``commercial operator'' are terms 
of art defined in FAA regulations. See 14 CFR 1.1. An ``air 
carrier'' is ``a person who undertakes directly by lease or other 
arrangement to engage in air transportation.'' A ``commercial 
operator'' is ``a person who, for compensation or hire, engages in 
the carriage by aircraft in air commerce of persons or property 
other than as an air carrier or foreign air carrier or under part 
375.'' The Federal Aviation Administration's (``FAA'') air carrier 
safety rules are contained in 14 CFR parts 121 (large airplanes) and 
135 (smaller airplanes and other aircraft).
---------------------------------------------------------------------------

    One comment addressed these definitions, supporting both. The 
Commission did not receive any comments identifying a difference 
between the universe of aircraft encompassed by the new term ``non-
commercial travel'' and the aircraft included in former 11 CFR 
100.93(c) (``an airplane not licensed by the Federal Aviation 
Administration to operate for compensation or hire under 14 CFR parts 
121, 129, or 135'').
    The Commission is defining ``commercial travel'' with respect to 
conveyances other than aircraft as ``other means of transportation 
operated for commercial passenger service.'' 11 CFR 
100.93(a)(3)(iv)(B). This definition is unchanged from the proposed 
rule. The Commission did not receive any comments on this proposed 
definition.
    The Commission also did not receive any comments on whether the 
definitions of ``commercial travel'' and ``non-commercial travel'' 
should specifically address the treatment of aircraft operated under 
complex multiple ownership or leasing arrangements, such as 
arrangements in which some of the owners of an aircraft are commercial 
operators certificated by the FAA but others are not. The Commission 
has decided not to address this issue in the final rule's definitions 
because the Commission expects that the structure of the final rule 
will eliminate any potential for confusion arising from complex 
ownership arrangements. The final rule focuses on the operator of the 
aircraft at the time of a given flight and whether that particular 
flight is subject to the applicable FAA safety standards, rather than 
the owners, service providers, or prior uses of the aircraft as in 
former 11 CFR 100.93. Multiple ownership arrangements for aircraft 
owned or leased by a candidate or a candidate's immediate family member 
through a multiple-ownership arrangement are addressed in 11 CFR 
100.93(g), discussed below.
4. 11 CFR 100.93(a)(3)(vi)--Definition of ``Comparable Aircraft''
    HLOGA Section 601(a) requires reimbursement of fair market value 
for flights described within that section based on the charter rate for 
a ``comparable plane of comparable size''

[[Page 63954]]

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

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

    Paragraphs (b)(1) and (b)(2) of section 100.93 require a campaign 
traveler, or the political committee on whose behalf the travel 
occurred, to reimburse the provider of the aircraft or other conveyance 
at the applicable rate specified in 11 CFR 100.93(c), (d), (e), or (g) 
to avoid receipt of an excessive or prohibited in-kind contribution.
    As explained further below, travel on non-commercial aircraft by 
candidates for election for the office of Representative in, or 
Delegate or Resident Commissioner to, the Congress (``House 
candidates''), or a person traveling on behalf of any such candidate or 
any authorized committee or leadership PAC of such candidate, is 
generally prohibited (see 11 CFR 100.93(c)(2)) and cannot be accepted 
as an in-kind contribution or be reimbursed from campaign funds (see 11 
CFR 113.5).
    The Commission is also renumbering former paragraph (b)(1)(iii) as 
paragraph (b)(3) and revising it to permit members of the news media 
and government-provided security personnel traveling with a candidate 
to reimburse the political committee or to pay the service provider 
directly for their pro rata share of the travel. Ultimately it is the 
candidate committee's exclusive responsibility to ensure that the 
service provider is reimbursed for the value of the transportation 
provided to all persons traveling with the candidate; however, allowing 
members of the news media to reimburse the political committee or to 
pay the service provider directly is consistent with former 11 CFR 
100.93 and takes into account the variety of billing practices that 
have been used by members of the media to pay for their travel. See 
2003 E&J, 68 FR at 69586; see also 11 CFR 9004.6 and 9034.6.\6\
---------------------------------------------------------------------------

    \6\ To the extent that any portion of 11 CFR 9004.6 or 9034.6 is 
inconsistent with 11 CFR 100.93, section 100.93 governs.
---------------------------------------------------------------------------

    Like members of the news media, a Federal or State government 
provider of security personnel traveling with a candidate, such as the 
Secret Service and national security staff, also may reimburse the 
political committee paying for the security personnel's portion of the 
travel expenses. See, e.g., Advisory Opinion 1992-38 (Clinton/Gore) 
(loan proposal premised on the obligation of the Secret Service to 
provide reimbursement); see also 11 CFR 9004.6 and 9034.6. Under the 
revised rule, the government security provider therefore may pay the 
service provider directly or reimburse the political committee paying 
for the travel. In either case, members of the news media or the 
government provider of security must not pay more than their pro rata 
share of the travel costs, as determined in accordance with 11 CFR 
100.93(c), (d), (e), or (g).
    There is no indication that Congress was concerned about news media 
or government-provided security personnel paying for their own travel 
when traveling with Federal candidates or officeholders. Unlike when a 
corporation or political committee provides free or reduced travel 
services to a candidate, the reimbursement by news media or government-
provided security personnel for their own travel does not implicate the 
goals of the Act in deterring corruption or the appearance of 
corruption. Moreover, a candidate may have little or no control over 
whether to be accompanied by government-provided security personnel. 
Finally, although several commenters urged the Commission to prohibit 
political committees from paying any portion of the cost of a Federal 
candidate's flight, none of the commenters indicated that payments by 
the news media or government entities would pose the same dangers of 
corruption or the appearance of corruption, or that the news media and 
government security providers should be prohibited from paying for 
their own travel, particularly when paying the same rate as others on 
the aircraft. Although the rule proposed in the NPRM would have 
prohibited any form of payment by the news media, the Commission sees 
no compelling reason to deviate from its longstanding policy of 
permitting the news media and government-provided security personnel to 
pay for their pro rata share of the fair market value of the travel.

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

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

[[Page 63955]]

presidential, vice-presidential, and Senate candidates to pay the 
entire charter cost. For example, if Senate Candidate A is traveling 
with two campaign staffers, and Senate Candidate B is also traveling on 
the aircraft, and each candidate is traveling on behalf of his or her 
own campaign, then Candidate A would pay three-fourths of the charter 
fare and Candidate B would pay one-fourth.
    This result is also consistent with the comment submitted by two of 
the sponsors of HLOGA, Senators Feingold and Obama, who suggested that 
the cost of the flight be split among candidates in proportion to the 
benefit derived by each campaign. The Senators stated that this 
approach would be consistent with the payment for air travel required 
under the Senate Ethics Rules. See Standing Rules of the Senate, Rule 
XXXV, Paragraph 1(c)(1)(C)(i).
    Under new 11 CFR 100.93(c)(1), the ``pro rata share'' is calculated 
based on the number of candidates represented on a flight, regardless 
of whether the individual candidate is present on the flight. This 
provision is consistent with HLOGA, which limits expenditures for non-
commercial air travel by presidential, vice-presidential, and Senate 
candidates, and their authorized committees. A candidate is represented 
on a flight if a person is traveling on behalf of that candidate or the 
candidate's authorized committee. See 11 CFR 100.93(c)(1). Thus, for 
example, if Senate Candidate A travels with the campaign manager of 
Senate Candidate B, but Candidate B does not travel, then the two 
Senate candidates must nonetheless each pay half of the charter rate. 
Candidate B's committee receives the same benefit from the travel by 
its staff as if Candidate B had taken the flight. This result is the 
same as proposed in the NPRM, which was supported by all of the 
commenters addressing this aspect of the proposed rule.
    Under new 11 CFR 100.93(c)(1), when a presidential, vice-
presidential, or Senate candidate, or a representative of the 
candidate, is traveling on behalf of another political committee (such 
as a political party committee or Senate leadership PAC), rather than 
on behalf of the candidate's own authorized committee, the 
reimbursement for that travel is the responsibility of the political 
committee on whose behalf the travel occurs. If the political committee 
is other than an authorized committee or House candidate's leadership 
PAC, then the appropriate reimbursement rate for that political 
committee is set forth in new 11 CFR 100.93(c)(3), discussed below. In 
such cases, the presidential, vice-presidential, or Senate candidate, 
or candidate's representative, is treated the same as any other person 
traveling on behalf of the political committee.\7\
---------------------------------------------------------------------------

    \7\ One commenter asked the Commission to address a hypothetical 
scenario in which the chairman of a political party committee and a 
Senate candidate both travel aboard a non-commercial aircraft to a 
political party committee fundraiser. In response to this request, 
the Commission notes that because the candidate would be traveling 
on behalf of the political party committee, that individual's status 
as a candidate would be irrelevant. Therefore, the political party 
committee would pay for the candidate's portion of the travel. See 
11 CFR 100.93(c)(3).
---------------------------------------------------------------------------

    The reimbursement rates for travel aboard government-operated 
aircraft or aircraft owned by a candidate or a member of a candidate's 
immediate family, are treated separately in paragraphs (e) and (g) of 
11 CFR 100.93, as discussed below. See subsections H and I, below.
2. Alternatives Not Adopted
    In the NPRM, the Commission sought comment on three alternative 
methodologies for calculating the appropriate reimbursement rate for 
travel by presidential, vice-presidential, or Senate candidates and 
their representatives.
    First, the NPRM included several variations of a ``per committee'' 
alternative that would have required reimbursement based on the number 
of represented committees of any type, rather than the number of 
represented candidates or candidate committees. Second, a ``per 
passenger'' alternative would have required candidates to reimburse the 
service provider for only that portion of the normal and usual charter 
rate that reflected the number of candidate representatives as a 
percentage of all passengers on the aircraft. Third, a ``comparable 
aircraft'' alternative would have followed the approach in the 
Commission's 2003 travel rules by permitting reimbursement at the 
normal and usual charter rate or rental charge for an aircraft of 
sufficient size to carry all of the campaign travelers on the flight. 
See 11 CFR 100.93(c)(3) (2004) (requiring reimbursement of ``the normal 
and usual charter fare or rental charge for a comparable commercial 
airplane of sufficient size to accommodate all campaign travelers'').
    The Commission has decided not to adopt any of the alternative 
methodologies proposed in the NPRM. The Commission believes that the 
methodology in the final rule described above is most consistent with 
the language of HLOGA. Moreover, the Commission believes that the 
proposed alternative methodologies might have lent themselves to 
manipulation, with the result that corporations, political committees, 
and others could provide a benefit to the candidate or political 
committee on whose behalf the travel was undertaken by allowing the 
candidate or political committee to pay less than its pro rata share of 
the charter rate. Most of the commenters agreed that the proposed 
alternative methodologies were inconsistent with the intent of HLOGA.
    One commenter proposed an alternative based on the ``comparable 
aircraft'' alternative proposed in the NPRM. This alternative would 
have followed the approach in the Commission's 2003 travel rules by 
permitting reimbursement at the normal and usual charter rate or rental 
charge for an aircraft of sufficient size to carry all of the campaign 
travelers on the flight. See 11 CFR 100.93(c)(3) (2004). The Commission 
is not adopting this commenter's version of the ``comparable aircraft'' 
alternative because it would allow for the potential reduction of costs 
by using smaller aircraft for comparison purposes rather than the 
aircraft actually flown. Moreover, the additional separate calculation 
of the fair market value of the flight actually taken would add 
unnecessary complexity to compliance with, and enforcement of, the 
rules.
3. Travel on Behalf of Leadership PACs of Senate, Presidential, and 
Vice-Presidential Candidates
    HLOGA prohibits non-commercial air travel on behalf of leadership 
PACs of House candidates, but it does not prohibit such travel on 
behalf of leadership PACs of Senate, presidential, or vice-presidential 
candidates. Nor does HLOGA specify the rate at which the Senate, 
presidential, or vice-presidential candidates' leadership PACs must 
reimburse a service provider to avoid a contribution, as it does for 
those candidates and their authorized committees. For the reasons set 
forth below in section III.E.1, the Commission is applying the 
reimbursement rates in 11 CFR 100.93(c)(3)(i)-(iii) to travel on behalf 
of the leadership PAC of any Senate, presidential, or vice-presidential 
candidate to make the new rules consistent with the Commission's prior 
travel regulations. These rates were set forth in the Commission's 2003 
travel rules: first-class, coach, or charter rates, depending on 
whether the origin and destination cities are served by regularly 
scheduled commercial airline service.

[[Page 63956]]

D. 11 CFR 100.93(c)(2)--Non-Commercial Air Travel by or on Behalf of 
Candidates for the House of Representatives

    New 2 U.S.C. 439a(c)(2) states that ``in the case of a candidate 
for election for the office of Representative in, or Delegate or 
Resident Commissioner to, the Congress, an authorized committee and a 
leadership PAC of the candidate may not make any expenditure'' for non-
commercial air travel, with exceptions for travel on government-
operated airplanes and aircraft owned by the candidate or members of 
the candidate's immediate family. Both exceptions are discussed below. 
The effect of this provision is generally to prohibit travel by House 
candidates on non-commercial aircraft.
    In the NPRM, the Commission proposed a general rule that would 
prohibit non-commercial air travel by House candidates and sought 
comment on whether House candidates should nonetheless be permitted to 
travel on non-commercial aircraft on behalf of their own campaigns, if 
the cost of the travel is provided by a permissible source, by treating 
the travel as a permissible in-kind contribution. One group of 
commenters addressed this question and urged the Commission to prohibit 
non-commercial air travel by House candidates as proposed in the NPRM 
and not allow such travel if it was provided by a permissible source as 
a permissible in-kind contribution.
    The Commission agrees with the commenters, and is adopting the rule 
as proposed in the NPRM. See 11 CFR 100.93(c)(2). Outside of the 
exceptions for travel on government-operated and candidate-owned 
aircraft, there is no discussion in the legislative history of this 
provision to indicate that Congress contemplated allowing non-
commercial air travel by House candidates. Instead, statements by 
sponsors of the new law referred to a ``ban'' on House travel. See, 
e.g., 153 Cong. Rec. S10713 (daily ed. Aug. 2, 2007) (statement of 
HLOGA sponsors offered by Sen. Feinstein). In addition, the statute 
itself does not include any reimbursement rate for non-commercial 
travel by House candidates, whereas Congress did specify a rate for 
Senate and presidential candidates.
    New 11 CFR 100.93(c)(2) prohibits House candidates, and individuals 
traveling on behalf of House candidates, their authorized committees or 
leadership PACs, from engaging in non-commercial campaign travel on 
aircraft. This prohibition cannot be avoided by payments to the service 
provider, even by payments from the personal funds of a House 
candidate.\8\
---------------------------------------------------------------------------

    \8\ Although the general rule in 11 CFR 100.93(b)(2) states that 
no contribution results where a campaign traveler pays the service 
provider the required rate in accordance with 11 CFR 100.93(c), 
there is no rate applicable to House candidates in 11 CFR 100.93(c). 
Thus, 11 CFR 100.93(b)(2) does not permit House candidates to travel 
on non-commercial aircraft by paying the service provider.
---------------------------------------------------------------------------

    The prohibition does not apply, however, when the travel would be 
considered an expenditure by someone other than the House candidate, 
House candidate's authorized committee, or House candidate's leadership 
PAC. For example, travel by a House candidate on behalf of a Senate or 
presidential candidate, or a political party committee, would be 
permissible so long as the political party committee or candidate on 
whose behalf the travel occurs reimburses the service provider at the 
applicable rate under 11 CFR 100.93(c)(1) or (3).

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

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

[[Page 63957]]

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

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

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

2. Candidates Traveling With Non-Candidate Campaign Travelers
    When a Federal candidate (other than a House candidate), or person 
traveling on behalf of a candidate or candidate's authorized committee, 
shares a non-commercial flight with one or more campaign travelers who 
are not traveling on behalf of a candidate or candidate's committee, 
the candidate must pay the cost of the entire charter fare for a 
comparable aircraft of comparable size pursuant to 11 CFR 100.93(c)(1). 
Except as permitted under 11 CFR 100.93(b)(3), campaign travelers who 
are not traveling on behalf of a candidate, candidate's authorized 
committee, or House candidate leadership PAC, and other passengers 
cannot relieve the candidate's payment obligation.
    For example, Senate Candidate A, Senate Candidate B, and Candidate 
B's campaign manager travel on a plane on behalf of their respective 
campaigns, along with PAC Representative P traveling on behalf of the 
PAC. The pro rata share of the fair market value of the flight is 
determined by dividing the normal and usual charter rate for the plane 
by three because there are three individuals who are candidates or 
traveling on behalf of candidates (Candidate A, Candidate B, and 
Candidate B's campaign manager). New 11 CFR 100.93(c)(1) bases the rate 
calculation on the proportional share of travelers attributable to each 
Senate candidate, so Candidate A pays one-third of the charter rate and 
Candidate B pays two-thirds.\10\
---------------------------------------------------------------------------

    \10\ One commenter posed a hypothetical situation in which the 
chairman of a political party committee, who is also a Senate 
candidate, takes non-commercial air travel to serve as the keynote 
speaker at a fundraiser to benefit a joint fundraising committee 
between the political party committee and his own campaign for the 
U.S. Senate. Because the joint fundraising committee is treated as 
an authorized committee of the Senate candidate, see 11 CFR 
102.17(a)(1)(i), the Senate candidate's principal campaign committee 
(another authorized committee) must pay for the travel.
---------------------------------------------------------------------------

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

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

F. Additional Revisions to 11 CFR 100.93(c)

1. Presidential and Vice-Presidential Candidates
    The Commission continues to treat travel by publicly financed 
presidential and vice-presidential candidates the same as travel by 
presidential and vice-presidential candidates who do not receive public 
funds. Therefore, 11 CFR 100.93(c)(1) applies to presidential and vice-
presidential candidates who do not receive public funds, while 11 CFR 
9004.7 and 9034.7, discussed below, continue to incorporate the 11 CFR 
100.93 rates by reference for candidates who accept public funds. One 
important distinction, however, is that a presidential candidate 
accepting public funds for the general election is prohibited from 
receiving any in-kind contribution from any person, including an in-
kind contribution of non-commercial air travel. The Commission did not 
receive any comments on this aspect of the rules.
2. Commercially Reasonable Time Frame
    HLOGA requires candidates for President, Vice-President, and the 
U.S. Senate to pay their pro rata share of non-commercial travel on 
aircraft ``within a commercially reasonable time frame after the date 
on which the flight is taken.'' 2 U.S.C. 439a(c)(1)(B). The Commission 
implements this requirement by specifying in 11 CFR 100.93(c) that the 
``commercially reasonable time frame'' for payment is within seven days 
after the first day of the flight. This time frame applies to all 
payments required under new 11 CFR 100.93(c).
    The seven-day time frame was established in the 2003 travel rules, 
and nothing in the record of this rulemaking suggests that a longer or 
shorter period is warranted. Nor has the Commission's experience in 
administering and enforcing the 2003 travel rule indicated any reason 
to adjust the time frame. The Commission received only one comment 
addressing this time frame, and that comment supported the seven-day 
time frame.

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

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

[[Page 63958]]

political committee must pay the service provider an amount equal to 
the normal and usual fare or rental charge for a comparable commercial 
conveyance of sufficient size to accommodate all campaign travelers, 
including members of the news media traveling with a candidate, and 
security personnel, if applicable. 11 CFR 100.93(d). This provision is 
substantially identical to the 2003 travel rule and to the rule 
proposed in the NPRM. NPRM, 72 FR at 59965. HLOGA does not address 
travel on any conveyances other than aircraft, and the Commission's 
experience administering the 2003 rule for travel on conveyances other 
than aircraft does not indicate that a change to the rule regarding 
travel on conveyances other than aircraft is warranted.
    The Commission did not receive any comments on proposed 11 CFR 
100.93(d).

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

    The Commission's 2003 travel rules at 11 CFR 100.93(e) required 
reimbursement for travel aboard airplanes provided by the Federal 
government, or by any State or local government entity, at the same 
rate as travel aboard other airplanes. Non-commercial campaign travel 
aboard government conveyances other than aircraft was reimbursed under 
former 11 CFR 100.93(e)(2) at the same rate as travel aboard the 
equivalent means of transportation not provided by a government entity. 
HLOGA generally prohibits House candidates from using campaign funds 
for non-commercial travel, except for travel aboard an aircraft 
``operated by an entity of the Federal government or the government of 
any State.'' \12\ 2 U.S.C. 439a(c)(2)(B).
---------------------------------------------------------------------------

    \12\ HLOGA similarly amends the Standing Rules of the Senate 
regarding travel to require Senators to pay the pro rata share of 
the fair market value of a flight for non-commercial travel, except 
for travel aboard ``an aircraft owned or leased by a governmental 
entity.'' See Public Law 110-81, sec. 544(c)(1), amending Paragraph 
1(c)(1) of rule XXXV of the Standing Rules of the Senate. In order 
to avoid a regulatory gap with respect to travel on aircraft 
operated by local governments, new 11 CFR 100.93(e) applies to 
campaign travel on aircraft operated by local government entities in 
addition to Federal and State government, as proposed in the NPRM. 
The Commission did not receive any comments on this provision.
---------------------------------------------------------------------------

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

    \13\ The term ``government-required personnel'' encompasses 
individuals assigned to accompany a campaign traveler for reasons of 
national security or other official purposes as required by law or 
government policy. It does not encompass a Federal officeholder's 
staff or other individuals who are ``required'' by the officeholder 
solely by virtue of their staff positions.
---------------------------------------------------------------------------

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

[[Page 63959]]

on a private or government-operated aircraft, and regardless of whether 
the candidate is reimbursing at the ``per candidate campaign traveler'' 
reimbursement rate or at the ``private traveler'' reimbursement rate. 
The general rule regarding reimbursement to a candidate committee by 
members of the news media and government-provided security personnel 
(11 CFR 100.93(b)(3)) applies to both private and government-operated 
aircraft.
    For example, if eleven passengers (Presidential Candidate A and two 
campaign staffers traveling on behalf of Presidential Candidate A, 
Senate Candidate B traveling on behalf of her own campaign, PAC 
representative P, four members of the news media traveling with 
Presidential Candidate A, and two members of the Secret Service 
required to travel with Candidate A), travel on a twelve-seat 
government aircraft, reimbursement would be required at the normal and 
usual charter rate for a comparable aircraft of sufficient size to 
accommodate nine passengers. The two Secret Service agents need not be 
counted when determining the size of a comparable aircraft because they 
would be ``government-required personnel.'' Given that no portion of 
the normal and usual charter fare or rental charge may be attributed to 
any non-candidate campaign traveler or any other passenger, the charter 
fare would be divided by ten (the number of candidates, their campaign 
staffers, members of the media, and security personnel traveling with 
the candidates). PAC representative P would not be required to 
reimburse the government entity for his or her travel and is not 
permitted to assume any of the payment otherwise required from the 
candidates.
    Thus, Presidential Candidate A would pay nine-tenths of the full 
charter rate for the comparable nine-seat aircraft, and Senate 
Candidate B would pay one-tenth of the charter cost. The four media 
representatives or their employers may reimburse Presidential Candidate 
A for up to four-tenths of the cost of the nine-seat charter aircraft, 
or pay the government that amount directly, pursuant to 11 CFR 
100.93(b)(3).\14\ Likewise, the Secret Service may reimburse Candidate 
A up to two-tenths of the cost for the two Secret Service 
representatives, or it may pay that amount directly to the government 
entity providing the aircraft.
---------------------------------------------------------------------------

    \14\ The Commission is aware that the White House Travel Office 
has agreements with the White House Correspondents Association 
regarding travel arrangements for members of the media, and these 
rules are not intended to alter those agreements.
---------------------------------------------------------------------------

2. 11 CFR 100.93(e)(1)(ii)--``Private Traveler'' Reimbursement Rate
    The second rate of reimbursement, the ``private traveler'' 
reimbursement rate, requires payment of the rate specified by the 
Federal, State, or local government agency or other government entity 
operating the aircraft. If the government entity has established a 
schedule of rates based on the type of traveler, and the schedule 
includes a rate for private travel on its aircraft by members of the 
public, then the campaign traveler choosing this option must reimburse 
the government at that rate.\15\
---------------------------------------------------------------------------

    \15\ The Department of Defense, for example, publishes a list of 
hourly reimbursement rates for both fixed-wing aircraft and 
helicopters and includes an ``All Other User'' rate, which is the 
private traveler rate for those aircraft. See Fiscal Year 2010 
Reimbursement Rates, available at 
http:[sol][sol]www.defenselink.mil/comptroller/rates/fy2010/2010_
f.pdf and http:[sol][sol]www.defenselink.mil/comptroller/rates/
fy2010/2010_h.pdf.
---------------------------------------------------------------------------

    For example, if the same eleven travelers (Presidential Candidate A 
and two campaign staffers traveling on behalf of Presidential Candidate 
A, Senate Candidate B traveling on behalf of her own campaign, PAC 
representative P, four members of the media traveling with Presidential 
Candidate A, and two Secret Service agents required to travel with 
Presidential Candidate A) travel aboard an aircraft operated by a State 
government, either candidate could choose to pay the ``private 
traveler'' reimbursement rate if such a rate is specified by that State 
government instead of the charter rate for a comparable aircraft of 
sufficient size to accommodate the campaign travelers. If the State 
government normally charges $100 per person per hour for use of the 
aircraft by State or Federal agencies and $200 per person per hour for 
private travel by authorized State employees and members of the public, 
then each candidate choosing this rate would pay for the campaign 
travelers traveling on behalf of that candidate at the $200 per person 
per hour rate. Presidential Candidate A is responsible for the cost of 
the travel of the two Secret Service agents under 11 CFR 
100.93(e)(1)(ii).\16\ Presidential Candidate A's payment for nine 
campaign travelers is a total of $1,800 per hour, although the four 
media representatives could reimburse Presidential Candidate A up to a 
total of $800 per hour to cover the cost of their travel and the two 
Secret Service agents could reimburse Presidential Candidate A up to a 
total of $400 per hour for their travel. Candidate B's cost is $200 per 
hour to cover the candidate's own travel. PAC representative P must pay 
for his or her own travel at $200 per hour.\17\
---------------------------------------------------------------------------

    \16\ Because Candidate A is responsible for the cost of the 
Secret Service travelers, the Secret Service may reimburse Candidate 
A for the cost of their travel under 11 CFR 100.93(b).
    \17\ Pursuant to 11 CFR 100.93(a)(3)(i)(A) any individual 
traveling in connection with an election for Federal office on 
behalf of a political committee is a ``campaign traveler.''
---------------------------------------------------------------------------

    If, however, the government entity's private traveler reimbursement 
rate is based on an hourly rate for the entire aircraft, then the 
candidate choosing this rate would calculate the amount that he or she 
must reimburse by determining what his or her share of the entire 
hourly rate split between the two candidates and the PAC is, in 
proportion to the number of campaign travelers traveling on behalf of 
each political committee, including the media representatives traveling 
with a candidate, and security personnel. There are a total of eleven 
campaign travelers on the flight (Presidential Candidate A, two 
campaign staffers traveling on behalf of Presidential Candidate A, 
Senate Candidate B, four members of the media traveling with 
Presidential Candidate A, two Secret Service agents required to travel 
with Presidential Candidate A, and PAC Representative P), so 
Presidential Candidate A must pay nine-elevenths of the hourly rate, 
for which the media could reimburse the candidate up to four-elevenths 
of the charter rate and the Secret Service could reimburse the 
candidate up to two-elevenths of the charter rate; Candidate B must pay 
one-eleventh; and PAC Representative P must pay one-eleventh.
    The Commission did not receive any comments on this aspect of the 
proposed rule. The rule is unchanged from that proposed in the NPRM. 
See 11 CFR 100.93(e)(1)(ii).
3. Travel on Air Force One or Two
    The Commission sought, but did not receive, comments on whether it 
should promulgate final rules specifically to address travel on Air 
Force One and Two.\18\ The Commission is not promulgating a separate 
rule for travel on these aircraft because the application of either of 
the rates in 11 CFR

[[Page 63960]]

100.93(e)(1) is sufficient to address travel on Air Force One and Two. 
Specifically, reimbursement for travel on Air Force One or Two using 
the ``per candidate campaign traveler'' rate (11 CFR 100.93(e)(1)(i)) 
already provides that the charter rate be based on an aircraft of 
``sufficient size to accommodate campaign travelers,'' excluding all 
government-required personnel and equipment. Travel aboard Air Force 
One or Two therefore would simply be a specific application of the more 
general rule applicable for travel on all government-operated aircraft.
---------------------------------------------------------------------------

    \18\ Air Force One is a designation assigned to any airplane 
that is providing transportation to the President of the United 
States. Air Force Two is the designation assigned to any airplane 
that is providing transportation to the Vice President of the United 
States. Marine One is the designation used for any Marine helicopter 
that is providing transportation to the President. Because 
``aircraft'' includes airplanes and helicopters, this discussion is 
equally applicable to Marine One.
---------------------------------------------------------------------------

4. Non-Candidate Campaign Travelers
    The Commission sought, but did not receive, comments on the extent 
to which campaign travelers fly on government-operated aircraft when 
not traveling with, or on behalf of, a candidate or candidate's 
committee. For example, a representative of a political party committee 
might travel in connection with a Federal election on a government-
operated aircraft on which a Federal candidate is not also present. In 
the absence of a record indicating that this travel is frequent enough 
to justify a separate provision in the rule, or that a special rule is 
needed, the final rules do not treat this potentially hypothetical 
situation differently from other travel by non-candidate campaign 
travelers on non-commercial aircraft. Thus, new 11 CFR 100.93(e)(2) is 
the same as the 2003 rule for travel on a government aircraft. That is, 
if the non-candidate campaign traveler travels to a military base or 
other location not accessible to the general public, the travel must be 
reimbursed at the lowest unrestricted and non-discounted first-class 
airfare to or from the city with regularly scheduled first-class 
commercial airline service that is geographically closest to the 
military airbase or other location actually used. Otherwise, the 
campaign traveler must reimburse the government in accordance with 11 
CFR 100.93(c)(3).
5. Time Period for Reimbursement of Travel on Government Conveyances
    New 11 CFR 100.93(e) provides that payment must be made within the 
time period specified by the government entity providing the aircraft 
or other conveyance. This policy defers to a government entity's 
management of its own aircraft and avoids potential conflicts with that 
entity's own regulations. The NPRM did not propose a specific time 
period for reimbursement for travel on government-operated aircraft 
under either of the alternative rates, and the Commission did not 
receive any comments on an appropriate period. The government entity's 
accountability for the use of its aircraft serves as a check on 
potential abuses in payment delays by campaign travelers.

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

    HLOGA's amendments to 2 U.S.C. 439a contain an exception from the 
payment and reimbursement requirements for travel aboard aircraft that 
are ``owned or leased'' by a candidate or a candidate's immediate 
family member (hereinafter ``candidate owned''), 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 (1) the entity is not a ``public corporation'' and (2) 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). In the NPRM the Commission proposed a rule, new 11 CFR 
100.93(g), in which the exception would apply to all of the 
restrictions on expenditures for air travel in new 2 U.S.C. 439a(c). 
See discussion of new 11 CFR 113.5, below. The Commission requested 
comments on this proposed exception, new 11 CFR 100.93(g), but received 
none.
    While the exception relieves the restrictions on expenditures, it 
still requires a candidate to reimburse the service providers 
(candidates, members of their immediate family, or entities in which 
either owns an interest) if the candidate seeks to avoid receiving an 
in-kind contribution from the service provider for the candidate's use 
of the aircraft. See 11 CFR 100.93. New section 100.93(g) sets out the 
appropriate reimbursement rates. Even though candidates for Federal 
office may make unlimited contributions to their own campaigns, those 
contributions must be reported by their authorized committees.\19\ 11 
CFR 110.10; Advisory Opinions 1991-09 (Hoagland), 1990-09 (Mueller), 
1985-33 (Collins), and 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.
---------------------------------------------------------------------------

    \19\ There is one exception to this general rule: a $50,000 
limit applies to publicly-funded presidential candidates in the 
primary and the general election. See 11 CFR 9003.2(c), 
9033.2(b)(2), and 9035.2(a)(1).
---------------------------------------------------------------------------

    The NPRM proposed three alternative reimbursement rates as follows:
    The first alternative would have required reimbursement for 
aircraft owned by candidates and their immediate family members at the 
rates set forth in the Commission's 2003 travel rules: first-class, 
coach, or charter rates, depending on whether the origin and 
destination cities are served by regularly scheduled commercial airline 
service.
    The second alternative would have required reimbursement for the 
``incremental cost'' of operating the aircraft, meaning the actual cost 
of fuel and any incremental costs such as landing fees but excluding 
depreciation.
    The third alternative would have been based on the ``actual cost'' 
of operating the aircraft, such as 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 have been $1,000 per hour.
    New 11 CFR 100.93(g) combines several aspects of these 
alternatives. The Commission is also re-organizing the rule in 
recognition that an increasing number of aircraft are operated through 
shared-ownership arrangements, while other aircraft may be owned solely 
by the candidate or the candidate's immediate family members. In 
addition, the new rules reflect the statutory limitation in 2 U.S.C. 
439a(c)(3)(A) that in situations where the aircraft is owned through a 
shared-ownership arrangement, the candidate's use of the aircraft must 
not exceed the proportional ownership interest attributable to the 
candidate or the candidate's immediate family member.
    The new rule provides three alternative rates to address three 
different scenarios: (1) A shared-ownership arrangement where the 
candidate uses the aircraft within the limits of the relevant ownership 
interest; (2) a shared-ownership arrangement where the candidate uses 
the aircraft in excess of the limits of the relevant ownership 
interest; or (3) the aircraft is wholly owned by a candidate or a 
candidate's immediate family members.
    Because the exception in 2 U.S.C. 439a(c)(3) for travel on aircraft 
owned by candidates or members of their immediate family permits 
otherwise restricted or prohibited expenditures by candidates and their 
committees, the exception is limited only to travel by candidates or 
persons traveling on behalf of candidates, their authorized

[[Page 63961]]

committees, and House candidate leadership PACs. Similarly, the 
exception applies only to travel by a candidate on an aircraft owned or 
leased by that candidate or that candidate's immediate family member. 
The exception does not extend, however, to travel by other candidates 
who are traveling on behalf of their own campaigns, or for individuals 
traveling on behalf of other political committees. These latter 
campaign travelers must reimburse the candidate or other owner of the 
aircraft according to the rates set forth in 11 CFR 100.93(c).
    For example, if Senate Candidate A is traveling on behalf of his or 
her own campaign with Candidate B on behalf of his or her own campaign 
on an aircraft owned by Candidate B, then Candidate A must pay half of 
the cost of the normal and usual charter rate for a comparable aircraft 
of comparable size. Candidate B must pay for (or treat as a personal 
contribution) the candidate's own portion of the flight pursuant to the 
applicable rate in 11 CFR 100.93(g). If Party Committee Official C 
travels with Candidate B on behalf of the party committee on an 
aircraft owned by Candidate B, the party committee must pay the rate 
determined in accordance with 11 CFR 100.93(c)(3). The 11 CFR 
100.93(c)(3) payment exception for travel with a candidate would not 
apply to travel on a candidate-owned aircraft because the candidate is 
not paying a charter rate for the entire aircraft in accordance with 11 
CFR 100.93(c)(1).
1. 11 CFR 100.93(g)(1)(i)--Use Within the Limits of a Shared-Ownership 
Arrangement
    The exception in 11 CFR 100.93(g) applies to an aircraft owned or 
leased by any entity in which the candidate or a member of the 
candidate's immediate family ``has an ownership interest,'' so long as 
that entity is not a corporation with publicly traded shares. The rates 
in 11 CFR 100.93(g) therefore apply to a wide variety of shared-
ownership arrangements, including time-sharing arrangements and certain 
lease arrangements, and regardless of whether the ownership is made 
available to the candidate through a commercial operator certificated 
by the FAA.
    When a candidate or a candidate's immediate family member owns or 
leases an aircraft through any form of shared-ownership or lease 
agreement, 11 CFR 100.93(g)(1)(i) requires the candidate's committee to 
reimburse the candidate, candidate's immediate family member, or the 
administrator of the aircraft (e.g., NetJets)--or treat as a personal 
contribution from the candidate, where the candidate is the owner or 
lessee--for the hourly, mileage, or other applicable rate charged to 
the candidate, immediate family member, or corporation or other entity 
through which the aircraft is ultimately available to the candidate, 
for the costs of the travel. This reimbursement rate applies only to 
the extent that the candidate's use of the aircraft does not exceed the 
proportional share of the ownership interest in the aircraft held by 
the candidate or candidate's immediate family member, as defined in 11 
CFR 100.93(g)(3). Because a candidate would receive an in-kind 
contribution to the extent that the candidate is provided with 
something of value at less than the normal and usual cost, the 
ownership or lease agreement cannot provide a disproportionate benefit 
to the candidate. Thus, the amount of use to which the candidate or the 
candidate's immediate family member is entitled under an ownership or 
lease agreement must be similar to the amount of use to which other 
similarly situated owners are entitled. For example, if a candidate is 
one of four owners who each own 25 percent of an aircraft in a shared-
ownership arrangement, the ownership agreement cannot allow the 
candidate to use the aircraft free of charge or at a reduced rate forty 
percent of the time while each other owner has access to the aircraft 
for only twenty percent of the time.
2. 11 CFR 100.93(g)(1)(ii)--Use in Excess of the Limits of a Shared 
Ownership Arrangement
    In some shared-ownership agreements, an ownership interest entitles 
each ``owner'' to a specified amount of use of one or more aircraft. In 
this case, if a candidate's flight exceeds his or her proportional 
ownership interest in the aircraft, or that of the candidate's 
immediate family member, that flight falls outside of 11 CFR 100.93(g). 
See new 11 CFR 100.93(g)(1)(ii). Only a flight that exceeds the use 
permitted under the ownership agreement, however, would be excluded 
from the exception in 11 CFR 100.93(g). For example, if a candidate's 
spouse owns an interest in an aircraft through a time-share arrangement 
that entitles the spouse to ten hours of flight time per month, and the 
candidate uses the aircraft for three separate five-hour flights in a 
single month, the rate provided in 11 CFR 100.93(g)(1)(i) applies to 
the first 10 hours but does not apply to the last five hour flight. For 
the purposes of this example, the spouse's ten hours of flight time per 
month must not have been otherwise used by the spouse or another 
person. If the spouse or another person does make use of the aircraft 
for any part of the ten allotted hours, the candidate's use of the 
aircraft would be combined with the other uses for purposes of 
calculating the ten hour limit. For the last five hour flight, a 
Senate, presidential, or vice-presidential candidate must provide 
reimbursement at the rate established by 11 CFR 100.93(c)(1), in 
accordance with 11 CFR 100.93(g)(1)(ii). Excessive use by a House 
candidate, on the other hand, would be subject to the general 
prohibition on non-commercial air travel by House candidates. See 11 
CFR 100.93(c)(2).
3. 11 CFR 100.93(g)(1)(iii)--Wholly Owned Aircraft
    When the entire aircraft is owned by a candidate as an individual, 
or by the candidate's immediate family members as individuals, the 
candidate's authorized committee need reimburse (or report as an in-
kind contribution, to the extent permissible) only the pro rata share 
per campaign traveler of the costs associated with the trip.\20\ 11 CFR 
100.93(g)(1)(iii). These associated costs include, but are not limited 
to, the cost of fuel and crew, and a proportionate share of annual and 
recurring maintenance costs. Id. For example, because aircraft must 
periodically undergo regularly scheduled maintenance in order to comply 
with applicable safety laws, the candidate's committee must pay its 
proportionate share of these regular costs. The candidate's committee 
need not pay, however, for general depreciation in the value of the 
aircraft. Similarly, reimbursement for piloting and crew expense is not 
required when the candidate or candidate's immediate family member 
pilots the aircraft and serves as the crew. On the other hand, if a 
pilot or crew is employed for the flight, the cost of their services 
must be included in the reimbursement rate.
---------------------------------------------------------------------------

    \20\ As discussed above, with the exception of publicly funded 
presidential candidates, candidates are permitted to make unlimited 
contributions to their own campaigns. Contributions by all other 
persons, including immediate family members, are subject to the 
applicable amount limits and source prohibitions. An aircraft owned 
entirely by a family-held corporation would be treated as an 
aircraft accessed through a multiple ownership arrangement under 11 
CFR 100.93(g)(1)(i) or (ii), rather than (iii).
---------------------------------------------------------------------------

4. 11 CFR 100.93(g)(2) and (3)--Ownership Interest and Proportional 
Share of an Ownership Interest
    HLOGA does not define the term ``ownership interest.'' The 
Commission interprets the term ``ownership interest'' to include 
fractional ownership, voting or equity interest, or use arrangements,

[[Page 63962]]

as well as ``time-sharing'' arrangements in which the candidate or an 
immediate family member pays a fee for a specified amount of travel on 
the aircraft.
    Similarly, HLOGA does not define the term ``public corporation.'' 
The Commission interprets the term ``public corporation'' as applying 
to any corporation with publicly traded shares. See 11 CFR 
100.93(g)(2). Because HLOGA explicitly extends the exception contained 
in 2 U.S.C. 439a(c)(3)(A) to ``aircraft owned by an entity that is not 
a public corporation,'' aircraft owned by privately held corporations 
without publicly traded shares, partnerships without publicly traded 
equity interests, limited liability companies without publicly traded 
shares, and all other entities without publicly traded shares or equity 
interests would fall within 11 CFR 100.93(g), so long as a candidate or 
a member of the candidate's immediate family owns an equity interest or 
voting interest in that entity.
    The HLOGA exception applies so long as a candidate's use of the 
aircraft is not ``more than the candidate's or immediate family 
member's proportionate share of ownership allows.'' 2 U.S.C. 
439(c)(3)(A). However, the statute does not specify the exact nature of 
the relationship between ownership shares and use of the aircraft.
    New 11 CFR 100.93(g)(3) defines a ``proportional share of the 
ownership interest'' as ``the amount of use to which a candidate or 
immediate family member is entitled under an ownership or lease 
agreement.'' Rather than account for all of the potential ownership 
structures of an entity that may own or lease an aircraft, new 11 CFR 
100.93(g)(3) establishes one general condition for the exception to 
apply: Unless the aircraft is owned entirely by the candidate or the 
candidate's immediate family members, the amount of use of the aircraft 
to which each ownership share is entitled must be specified in writing 
prior to the candidate's use of the airplane. The Commission does not 
intend to delve into the various ownership structures, so long as the 
ownership or lease agreement does not provide a benefit to the 
candidate that is disproportionally greater than the benefit provided 
to others with similar ownership interests in the aircraft.
    In order to ensure that the candidate's use of the aircraft remains 
within the parameters of use specified in the agreement, the 
candidate's committee must, prior to each flight, obtain certification 
from the individual or entity making the aircraft available that the 
candidate's planned use, in combination with the other uses of the 
aircraft by the person or persons with the ownership interest in the 
aircraft, will not exceed the amount of use permitted under the 
ownership or lease agreement. If any part of a flight does exceed the 
use permitted under the ownership interest, then payment for the entire 
flight must be made under 11 CFR 100.93(c), not 11 CFR 100.93(g). For 
example, if a candidate plans a five-hour flight and the candidate's 
spouse is entitled to use an aircraft for ten hours per month through 
the spouse's position with a partnership that participates in a time-
share agreement, the candidate must not make use of the aircraft until 
it obtains certification from the spouse, the partnership, or time-
share provider that the candidate's planned five-hour flight will not 
cause the spouse to exceed the spouse's ten-hour limit. If the spouse 
has already used the aircraft for six hours that month, the candidate's 
planned use would cause the spouse to exceed the ten-hour limit and the 
entire five-hour flight would fall under 11 CFR 100.93(c), not 11 CFR 
100.93(g). See 11 CFR 100.93(g)(1)(ii).
    Some ownership agreements, however, may include specific fees for 
any use of an aircraft above or beyond the normal amount of permitted 
use under the agreement. For example, an ownership agreement might 
provide that one annual ownership share entitles that owner to use an 
aircraft for twenty hours per month without additional charge, and up 
to an additional one hundred hours per month at an additional charge of 
$1,000 per hour. In such cases, the hourly fee for the additional 
hundred hours would be included within the ``proportional share'' of 
that ownership interest. A candidate with such an ownership interest 
could therefore use the aircraft for up to one hundred and twenty hours 
in a month and reimburse the entity operating the aircraft at the rate 
in 11 CFR 100.93(g)(1)(i). The candidate would be required to pay the 
operator for one-twelfth of the ownership share (the cost of one month 
of the annual ownership share) to cover the first twenty hours, plus 
$1,000 for each of the additional hundred hours ($100,000).
5. Specific Time Period for Repayment
    The NPRM inquired whether the Commission should require the 
candidate's committee to make the payment required by 11 CFR 100.93(g) 
within a specific time period, such as no later than seven days from 
the first day of travel, which would be consistent with payment for 
travel on other aircraft under 11 CFR 100.93(c). The Commission did not 
receive any comments on this issue. The Commission is not specifying a 
time period for repayment in the rule itself in expectation that, in 
shared-ownership or lease arrangements, the candidate will make the 
repayment in accordance with the normal business practices of the 
entity administering the shared-ownership or lease agreements. If not, 
that entity will be deemed to have made a loan to the candidate's 
committee that would, if not repaid within the required commercially 
reasonable period, become an in-kind contribution to the candidate's 
authorized committee, subject to the limits, prohibitions, and 
reporting requirements of the Act.

J. 11 CFR 100.93(i)--Reporting Requirements

    The Commission is relocating the reporting requirements of 11 CFR 
100.93 from paragraph (h) to paragraph (i), as proposed in the NPRM, 
but is not making any substantive revisions to those requirements. The 
Commission did not receive any comments on the reporting requirements.

K. 11 CFR 100.93(j)--Recordkeeping Requirements

    Consistent with the changes to the reimbursement rates required for 
candidates, authorized committees of candidates, and leadership PACs of 
House candidates, the Commission is updating the recordkeeping 
requirements for non-commercial travel at 11 CFR 100.93(i), which are 
being relocated to new 11 CFR 100.93(j).
    First, the revised recordkeeping requirements maintain the basic 
elements of the Commission's 2003 travel rules. Depending on the 
eligible reimbursement rate, see new 11 CFR 100.93(c), (e), and (g), 
political committees are required to maintain the appropriate records 
for non-commercial travel under this section. What records are 
necessary depends on whether a campaign traveler may pay first-class or 
a coach rate for a flight, or is required to reimburse at the charter 
rate or one of the rates applicable for use of government conveyances.
    Second, the Commission is requiring candidate committees to obtain 
and keep copies of any shared-ownership or lease agreements, as well as 
the pre-flight certifications of compliance with those agreements, that 
the candidate's committee must obtain to comply with the requirements 
of 11 CFR 100.93(g)(1)(i) and (g)(3). These records are necessary to 
determine whether a candidate's use of the aircraft would cause the 
person with the ownership interest in the aircraft (the candidate or 
the candidate's immediate family

[[Page 63963]]

member) to exceed the amount of use of the aircraft included in that 
ownership interest.
    The Commission also sought comment on the appropriate duration of 
this record retention requirement, but did not receive any comments. 
Thus, the general record retention period of three years applies to 
these documents. See 11 CFR 104.14(b)(3). All other applicable 
recordkeeping requirements remain in effect with respect to these 
documents. See, e.g., 11 CFR 104.14(b).

IV. Restrictions on Use of Campaign Funds for Flights on Noncommercial 
Aircraft (2 U.S.C. 439a(c))--11 CFR 113.5

    In addition to amending the travel reimbursement regulations at 11 
CFR 100.93, the Commission is adding new 11 CFR 113.5 to implement the 
limit on expenditures for non-commercial air travel established by 
HLOGA. The Commission is promulgating new 11 CFR 113.5 to provide 
guidance regarding the making of expenditures, which is parallel to the 
guidance provided in 11 CFR 100.93 regarding contributions. The final 
rule is identical to proposed 11 CFR 113.5. In the NPRM, the Commission 
requested comments as to whether a new rule (11 CFR 113.5) is necessary 
to implement new 2 U.S.C. 439a(c) in light of the proposed revisions to 
11 CFR 100.93, but did not receive any comments addressing the 
question.

A. New 11 CFR 113.5(a)--Presidential, Vice-Presidential and Senate 
Candidates

    New 11 CFR 113.5(a)(1) implements the general prohibition in new 2 
U.S.C. 439a(c) on the expenditure of funds by candidates for President, 
Vice-President or the Senate and their authorized committees for 
aircraft flights, with the two exceptions provided in HLOGA (in 
addition to the special provisions for travel on government-operated 
aircraft and candidate-owned aircraft). The first exception is for air 
travel on ``commercial'' flights. See 11 CFR 113.5(a)(1). The second 
exception is for air travel on ``non-commercial'' flights if either the 
candidate, the authorized committee, or another political committee, 
reimburses the provider of the aircraft for the candidate's pro rata 
share per candidate campaign traveler of the normal and usual charter 
fare or rental charge for travel on a comparable aircraft of comparable 
size within seven days of when the flight began. See 11 CFR 
113.5(a)(2). New 11 CFR 113.5(a)(1) and (2) provide cross-references to 
definitions of the terms ``commercial travel'' and ``non-commercial 
travel'' in 11 CFR 100.93(a)(3)(iv) and (v). The ``candidate's pro rata 
share per candidate campaign traveler of the normal and usual charter 
fare'' is calculated in the same manner as in 11 CFR 100.93(c)(1). A 
candidate's committee will not be considered to have made an 
expenditure when members of the media and government-provided security 
personnel pay the service provider directly for their portion of the 
travel as permitted under 11 CFR 100.93(b)(3). Travel on aircraft 
provided by a Federal, State or local government entity is addressed in 
new 11 CFR 113.5(a)(3), consistent with new 11 CFR 100.93(e)(1) 
(government conveyances). Travel on candidate-owned aircraft is 
addressed below.
    The Commission received no comments specifically addressing new 11 
CFR 113.5(a).

B. New 11 CFR 113.5(b)--House Candidates

    As noted above, HLOGA prohibits House candidates and their 
authorized committees and leadership PACs from spending campaign funds 
on private, non-commercial air travel. 2 U.S.C. 439a(c)(2). Instead, 
House candidates must spend campaign funds on air travel only for 
commercial air travel, or for travel on aircraft owned by the candidate 
or the candidate's immediate family member, or for flights operated by 
the Federal government or a State or local government. Because House 
candidates, their authorized committees, and their leadership PACs are 
prohibited from spending campaign funds on non-commercial travel, other 
than travel permitted under 11 CFR 100.93(e) (government conveyances) 
or 11 CFR 100.93(g) (aircraft owned or leased by a candidate or a 
candidate's immediate family member), the new rule at 11 CFR 113.5(b) 
also prohibits House candidates from accepting in-kind contributions in 
the form of non-commercial air travel. In the NPRM, the Commission 
requested comment and received one comment, which expressed support. 
Accordingly, the Commission is implementing this proposal in new 11 CFR 
113.5(b)(1) and (2). Paragraph (b)(1) contains the same ``commercial 
exception'' as is set forth in 11 CFR 113.5(a)(1), discussed above. 
Travel on government-provided aircraft is reflected in paragraph 
(b)(2). Travel on candidate-owned aircraft is addressed below.

C. New 11 CFR 113.5(c)--Exception for Aircraft Owned or Leased by 
Candidates and Immediate Family Members of Candidates

    As noted above, the restrictions on expenditures in HLOGA do not 
apply to travel aboard aircraft that are owned or leased by a candidate 
or the candidate's immediate family members, including aircraft owned 
or leased by any entity in which the candidate or a member of the 
candidate's immediate family ``has an ownership interest,'' provided 
that the entity is not a ``public corporation,'' and the use of the 
aircraft is not ``more than the candidate's or immediate family 
member's proportionate share of ownership allows.'' 2 U.S.C. 
439a(c)(3)(A).
    New 11 CFR 113.5(c)(1) implements this statutory provision and 
cross-references the definition of ``proportional share of ownership'' 
in 11 CFR 100.93(g)(3). New 11 CFR 113.5(c)(2) states that candidates 
and immediate family members will be considered to own or lease 
aircraft under the conditions described in 11 CFR 100.93(g)(2), namely, 
when there is an ownership interest in an entity (other than a public 
corporation) that owns the aircraft. New 11 CFR 113.5(c)(3) cross-
references the definition of ``immediate family member'' in 11 CFR 
100.93(g)(4). The Commission received no comments specifically 
addressing 11 CFR 113.5(c) as proposed in the NPRM.

D. New 11 CFR 113.5(d)--In-kind Contribution

    New 11 CFR 113.5(d) states that the unreimbursed value of 
transportation provided to any campaign traveler (as defined in 11 CFR 
100.93(a)(3)(i)), is an in-kind contribution from the service provider 
to the candidate or political committee on whose behalf, or with whom, 
the campaign traveler traveled, and that such contributions are subject 
to the limits, prohibitions, and reporting requirements of the Act. As 
noted above, House candidates are generally prohibited from receiving 
such contributions. The Commission received no comments specifically 
addressing 11 CFR 113.5(d) as proposed in the NPRM and is adopting the 
rule proposed in the NPRM.

E. Change of Title for 11 CFR Part 113

    Along with adding new 11 CFR 113.5, which implements new 2 U.S.C. 
439a(c), the Commission is changing the title of Part 113. The former 
title, ``Use of Campaign Accounts for Non-Campaign Purposes,'' does not 
encompass new section 113.5, which governs use of campaign funds for

[[Page 63964]]

campaign travel. The new title for Part 113 is ``Permitted and 
Prohibited Uses of Campaign Accounts.'' The Commission received no 
comments addressing this change and is adopting the rule proposed in 
the NPRM.

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

    Although HLOGA does not amend either the Presidential Election 
Campaign Fund Act (Fund Act) (26 U.S.C. 9001 et seq.) or the 
Presidential Primary Matching Payment Account Act (Matching Payment 
Act) (26 U.S.C. 9031 et seq.), the Commission proposed in the NPRM to 
make certain amendments to its regulations implementing these laws to 
conform them to the changes it proposed to 11 CFR 100.93. The 
Commission received no comments regarding these proposals and is 
implementing them without change from the NPRM.
    Sections 9004.7 and 9034.7 are substantively identically worded 
regulations promulgated under the authority of the Fund Act and the 
Matching Payment Act, respectively, and cross-reference 11 CFR 100.93. 
Both regulations prescribe the procedures that publicly funded primary 
and general election presidential campaigns must follow in attributing 
their travel expenses to campaign-related and to non-campaign-related 
activities. The Commission is making the following technical amendments 
to these regulations.

A. Aircraft

    Revised 11 CFR 9004.7(b)(5)(i), (iii), and (v), and 11 CFR 
9004.7(b)(8) replace the word ``airplane'' with the word ``aircraft.'' 
These changes conform the regulations to the terminology in HLOGA, as 
well as revised 11 CFR 100.93 and new 11 CFR 113.5.

B. Recordkeeping Requirements

    Former 11 CFR 9004.7(b)(5)(v) and 11 CFR 9034.7(b)(5)(v) required 
the authorized committees of presidential and vice-presidential 
candidates to maintain documentation of the lowest unrestricted non-
discounted airfare as required in former 11 CFR 100.93(i)(1) or (2). 
Former sections 100.93(i)(1) and (2) contained recordkeeping 
requirements relating to rates of reimbursement prescribed in former 11 
CFR 100.93(c) and (e). Revised 11 CFR 100.93, however, replaces the old 
reimbursement rate for non-commercial air travel by presidential and 
vice-presidential candidates with a rate based on the ``pro rata share 
per campaign traveler'' of the normal and usual charter fare or rental 
charge for travel on a comparable aircraft of comparable size, and sets 
out the corresponding recordkeeping requirements in 11 CFR 
100.93(j)(1). The Commission is therefore revising 11 CFR 
9004.7(b)(5)(v) and 11 CFR 9034.7(b)(5)(v) to conform them to the new 
recordkeeping requirements in amended 11 CFR 100.93(j)(1). The 
Commission is also amending the final sentence in sections 
9004.7(b)(5)(v) and 9034.7(b)(5)(v), which address recordkeeping 
requirements for travel on other conveyances to reflect that the 
recordkeeping requirements for other conveyances are now addressed in 
11 CFR 100.93(j)(3).

C. 11 CFR 9004.7(b)(8) and 11 CFR 9034.7(b)(8)--Conforming Changes in 
Terminology

    The Commission is revising 11 CFR 9004.7(b)(8) and 9034.7(b)(8) to 
conform the terminology to that used in new 2 U.S.C. 439a(c) and in 
revised 11 CFR 100.93. Former Sec. Sec.  9004.7(b)(8) and 9034.7(b)(8) 
used the same terminology as former section 100.93 in describing 
aircraft that are ``licensed for compensation or hire'' under various 
FAA certification authorities. Revised 11 CFR 100.93 defines the term 
``non-commercial travel,'' and uses the term ``aircraft'' instead of 
``airplane.'' Accordingly, revised 11 CFR 9004.7(b)(8) and 11 CFR 
9034.7(b)(8) state that travel on non-commercial aircraft is governed 
by 11 CFR 100.93 and that the term ``non-commercial travel'' is defined 
in accordance with 11 CFR 100.93(a)(3)(v).
Certification of No Effect Pursuant to 5 U.S.C. 605(b)
[Regulatory Flexibility Act]
    The Commission certifies that the attached rules will not have a 
significant economic impact on a substantial number of small entities. 
The basis for this certification is that few, if any, small entities 
are affected by these final rules, which impose obligations only on 
Federal candidates, their campaign committees, other individuals 
traveling in connection with Federal elections, and the political 
committees on whose behalf this travel is conducted. Federal 
candidates, their campaign committees, and most political party 
committees and other political committees entitled to rely on these 
rules are not small entities. These rules generally clarify or 
supplement existing rules and are largely intended to implement a 
statutory directive and simplify the process of determining 
reimbursement rates. The rules do not impose compliance costs on any 
service providers (as defined in the rules) that are small entities so 
as to cause a significant economic impact. With respect to the 
determination of the amount of reimbursement for travel, the new rules 
merely reflect an extension of existing similar rules. To the extent 
that operators of air-taxi services or on-demand air charter services 
are small entities indirectly impacted by these rules, any economic 
effects would result from the travel choices of individual candidates 
or other travelers rather than Commission requirements and, in any 
event, are likely to be less than $100,000,000 per year.

List of Subjects

11 CFR Part 100

    Elections.

11 CFR Part 113

    Campaign funds, Political candidates.

11 CFR Part 9004

    Campaign funds.

11 CFR Part 9034

    Campaign funds, Reporting and recordkeeping requirements.


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

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

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

    Authority:  2 U.S.C. 431, 434, 438(a)(8), and 439a(c).
* * * * *
0
2. 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 traveling in connection with an election for 
Federal office or any individual traveling in connection with an 
election for Federal office on behalf of a candidate or political 
committee; or

[[Page 63965]]

    (B) Any member of the news media traveling with a candidate.
    (ii) Service provider means the owner of an aircraft or other 
conveyance, or a person who leases an aircraft or other conveyance from 
the owner or otherwise obtains a legal right to the use of an aircraft 
or other conveyance, and who uses the aircraft or other conveyance to 
provide transportation to a campaign traveler. For a jointly owned or 
leased aircraft or other conveyance, the service provider is the person 
who makes the aircraft or other conveyance available to the campaign 
traveler.
    (iii) Unreimbursed value means the difference between the value of 
the transportation service provided, as set forth in this section, and 
the amount of payment for that transportation service by the political 
committee or campaign traveler to the service provider within the time 
limits set forth in this section.
    (iv) Commercial travel means travel aboard:
    (A) An aircraft operated by an air carrier or commercial operator 
certificated by the Federal Aviation Administration, provided that the 
flight is required to be conducted under Federal Aviation 
Administration air carrier safety rules, or, in the case of travel 
which is abroad, by an air carrier or commercial operator certificated 
by an appropriate foreign civil aviation authority, provided that the 
flight is required to be conducted under air carrier safety rules; or
    (B) Other means of transportation operated for commercial passenger 
service.
    (v) Non-commercial travel means travel aboard any conveyance that 
is not commercial travel, as defined in paragraph (a)(3)(iv) of this 
section.
    (vi) Comparable aircraft means an aircraft of similar make and 
model as the aircraft that actually makes the trip, with similar 
amenities as that aircraft.
    (b) General rule.
    (1) No contribution is made by a service provider to a candidate or 
political committee if:
    (i) Every candidate's authorized committee or other political 
committee on behalf of which the travel is conducted pays the service 
provider, within the required time, for the full value of the 
transportation, as determined in accordance with paragraphs (c), (d), 
(e) or (g) of this section, provided to all campaign travelers who are 
traveling on behalf of that candidate or political committee; or
    (ii) Every campaign traveler for whom payment is not made under 
paragraph (b)(1)(i) of this section pays the service provider for the 
full value of the transportation provided to that campaign traveler as 
determined in accordance with paragraphs (c), (d), (e) or (g) of this 
section. See 11 CFR 100.79 and 100.139 for treatment of certain 
unreimbursed transportation expenses incurred by individuals traveling 
on behalf of candidates, authorized committees, and political 
committees of political parties.
    (2) Except as provided in 11 CFR 100.79, the unreimbursed value of 
transportation provided to any campaign traveler, as determined in 
accordance with paragraphs (c), (d) or (e) of this section, is an in-
kind contribution from the service provider to the candidate or 
political committee on whose behalf, or with whom, the campaign 
traveler traveled. Contributions are subject to the reporting 
requirements, limitations and prohibitions of the Act.
    (3) When a candidate is accompanied by a member of the news media, 
or by security personnel provided by any Federal or State government, 
the news media or government security provider may reimburse the 
political committee paying for the pro-rata share of the travel by the 
member of the media or security personnel, or may pay the service 
provider directly for that pro-rata share, up to the applicable amount 
set forth in paragraphs (c)(1), (c)(3), (d), (e), or (g) of this 
section. A payment made directly to the service provider may be 
subtracted from the amount for which the political committee is 
otherwise responsible without any contribution resulting. No 
contribution results from reimbursement by the media or a government 
security provider to a political committee in accordance with this 
paragraph.
    (c) Travel on aircraft. When a campaign traveler uses aircraft for 
non-commercial travel, other than a government aircraft described in 
paragraph (e) of this section or a candidate or family owned aircraft 
described in paragraph (g) of this section, reimbursement must be 
provided no later than seven (7) calendar days after the date the 
flight began at one of the following rates to avoid the receipt of an 
in-kind contribution:
    (1) Travel by or on behalf of Senate, presidential, or vice-
presidential candidates. A Senate, presidential, or vice-presidential 
candidate traveling on his own behalf, or any person traveling on 
behalf of such candidate or the candidate's authorized committee must 
pay the pro rata share per campaign traveler of the normal and usual 
charter fare or rental charge for travel on a comparable aircraft of 
comparable size. The pro rata share shall be calculated by dividing the 
normal and usual charter fare or rental charge by the number of 
campaign travelers on the flight that are traveling on behalf of such 
candidates or their authorized committees, including members of the 
news media, and security personnel traveling with a candidate. No 
portion of the normal and usual charter fare or rental charge may be 
attributed to any campaign travelers that are not traveling on behalf 
of such candidates or their authorized committees, or any other 
passengers, except as permitted under paragraph (b)(3) of this section.
    (2) Travel by or on behalf of House candidates and their leadership 
PACs. Except as otherwise provided in paragraphs (e) and (g) of this 
section, a campaign traveler who is a candidate for election for the 
office of Representative in, or Delegate or Resident Commissioner to, 
the Congress, or a person traveling on behalf of any such candidate or 
any authorized committee or leadership PAC of such candidate, is 
prohibited from non-commercial travel on behalf of any such candidate 
or any authorized committee or leadership PAC of such candidate.
    (3) Other campaign travelers. When a candidate's authorized 
committee pays for a flight pursuant to paragraph (c)(1) of this 
section, no payment is required from other campaign travelers on that 
flight. Otherwise, a campaign traveler not covered by paragraphs (c)(1) 
or (c)(2) of this section, including persons traveling on behalf of a 
political party committee, separate segregated fund, nonconnected 
political committee, or a leadership PAC other than a leadership PAC of 
a candidate for election for the office of Representative in, or 
Delegate or Resident Commissioner to, the Congress, must pay the 
service provider no less than the following for each leg of the trip:
    (i) In the case of travel between cities served by regularly 
scheduled first-class commercial airline service, the lowest 
unrestricted and non-discounted 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 normal and usual 
charter fare or rental charge for a comparable commercial aircraft of 
sufficient size to accommodate all

[[Page 63966]]

campaign travelers, and security personnel, if applicable.
    (d) Other means of transportation. If a campaign traveler uses any 
means of transportation other than an aircraft, including an 
automobile, or train, or boat, the campaign traveler, or the political 
committee on whose behalf the travel is conducted, must pay the service 
provider within thirty (30) calendar days after the date of receipt of 
the invoice for such travel, but not later than sixty (60) calendar 
days after the date the travel began, at the normal and usual fare or 
rental charge for a comparable commercial conveyance of sufficient size 
to accommodate all campaign travelers, including members of the news 
media traveling with a candidate, and security personnel, if 
applicable.
    (e) Government conveyances.
    (1) Travel by or on behalf of candidates, their authorized 
committees, or House candidate Leadership PACs. If a campaign traveler 
traveling on behalf of a candidate, an authorized committee, or the 
leadership PAC of a House candidate uses an aircraft that is provided 
by the Federal government, or by a State or local government, the 
campaign traveler, or the political committee on whose behalf the 
travel is conducted, must pay the government entity, within the time 
specified by that government entity, either:
    (i) The pro rata share per campaign traveler of the normal and 
usual charter fare or rental charge for the flight on a comparable 
aircraft of sufficient size to accommodate all campaign travelers. The 
pro rata share shall be calculated by dividing the normal and usual 
charter fare or rental charge by the number of campaign travelers on 
the flight that are traveling on behalf of candidates, authorized 
committees, or House candidate leadership PACs, including members of 
the news media, and security personnel, if applicable. No portion of 
the normal and usual charter fare or rental charge may be attributed to 
any other campaign travelers or any other passengers, except as 
permitted under paragraph (b)(3) of this section. For purposes of this 
paragraph, the comparable aircraft need not accommodate any government-
required personnel and equipment; or
    (ii) The private traveler reimbursement rate, as specified by the 
governmental entity providing the aircraft, per campaign traveler.
    (2) Other campaign travelers. When a candidate's authorized 
committee, or a House candidate's leadership PAC pays for a flight 
pursuant to paragraph (e)(1) of this section, no payment is required 
from any other campaign travelers on that flight. Otherwise, a campaign 
traveler not covered by paragraph (e)(1) of this section, including 
persons traveling on behalf of a political party committee, separate 
segregated fund, nonconnected political committee, or a leadership PAC 
other than a leadership PAC of a candidate for the office of 
Representative in, or Delegate or Resident Commissioner to, the 
Congress, must pay the government entity, within the time specified by 
that government entity, either:
    (i) For travel to or from a military airbase or other location not 
accessible to the general public, the lowest unrestricted and non-
discounted first-class airfare to or from the city with regularly 
scheduled first-class commercial airline service that is geographically 
closest to the military airbase or other location actually used; or
    (ii) For all other travel, in accordance with paragraph (c)(3) of 
this section.
    (3) If a campaign traveler uses a conveyance, other than an 
aircraft, that is provided by the Federal government, or by a State or 
local government, the campaign traveler, or the political committee on 
whose behalf the travel is conducted, must pay the government entity in 
accordance with paragraph (d) of this section.
    (f) Date and public availability of payment rate. For purposes of 
paragraphs (c), (d), (e), and (g) of this section, the payment rate 
must be the rate available to the general public for the dates traveled 
or within seven (7) calendar days thereof. The payment rate must be 
determined by the time the payment is due under paragraph (c), (d), (e) 
or (g) of this section.
    (g) Aircraft owned or leased by a candidate or a candidate's 
immediate family member.
    (1) For non-commercial travel by a candidate, or a person traveling 
on behalf of a candidate, on an aircraft owned or leased by that 
candidate or an immediate family member of that candidate, the 
candidate's authorized committee must pay:
    (i) In the case of travel on an aircraft that is owned or leased 
under a shared-ownership or other time-share arrangement, where the 
travel does not exceed the candidate's or immediate family member's 
proportional share of the ownership interest in the aircraft, the 
hourly, mileage, or other applicable rate charged the candidate, 
immediate family member, or other service provider for the costs of the 
travel; or
    (ii) In the case of travel on an aircraft that is owned or leased 
under a shared-ownership or other time-share arrangement, where the 
travel exceeds the candidate's or immediate family member's 
proportional share of the ownership interest in the aircraft, the rate 
specified in paragraph (c) of this section (House candidates are 
prohibited from engaging in such travel); or
    (iii) In the case of travel on an aircraft that is not owned or 
leased under a shared-ownership or other time-share arrangement, the 
pro rata share per campaign traveler of the costs associated with the 
trip. Associated costs include, but are not limited to, the cost of 
fuel and crew, and a proportionate share of maintenance costs.
    (2) A candidate, or an immediate family member of the candidate, 
will be considered to own or lease an aircraft under paragraph (g)(1) 
of this section if the candidate or the immediate family member of the 
candidate has an ownership interest in an entity that owns the 
aircraft, provided that the entity is not a corporation with publicly 
traded shares.
    (3) A proportional share of the ownership interest in an aircraft 
means the amount of use to which the candidate or immediate family 
member is entitled under an ownership or lease agreement. Prior to each 
flight, the candidate's committee must obtain a certification from the 
service provider that the candidate's planned use of the aircraft will 
not exceed the candidate's or immediate family member's proportional 
share of use under the ownership or lease agreement. See paragraph (j) 
of this section for related recordkeeping requirements.
    (4) For the purposes of this section, an ``immediate family 
member'' of a candidate is the father, mother, son, daughter, brother, 
sister, husband, wife, father-in-law, or mother-in-law of the 
candidate.
    (h) Preemption. In all respects, State and local laws are preempted 
with respect to travel in connection with a Federal election to the 
extent they purport to supplant the rates or timing requirements of 11 
CFR 100.93.
    (i) Reporting.
    (1) In accordance with 11 CFR 104.13, a political committee on 
whose behalf the unreimbursed travel is conducted must report the 
receipt of an in-kind contribution and the making of an expenditure 
under paragraph (b)(2) of this section.
    (2) When reporting a disbursement for travel services in accordance 
with this section, a political committee on whose behalf the travel is 
conducted must report the actual dates of travel for which the 
disbursement is made in the ``purpose of disbursement'' field.

[[Page 63967]]

    (j) Recordkeeping.
    (1) For travel on non-commercial aircraft conducted under 
paragraphs (c)(1), (c)(3)(iii), (e)(1), or (g) of this section, the 
political committee on whose behalf the travel is conducted shall 
maintain documentation of:
    (i) The service provider and the size, model, make and tail number 
(or other unique identifier for military aircraft) of the aircraft 
used;
    (ii) An itinerary showing the departure and arrival cities and the 
date(s) of departure and arrival, a list of all passengers on such 
trip, along with a designation of which passengers are and which are 
not campaign travelers or security personnel; and
    (iii) (A) The rate for the comparable charter aircraft available in 
accordance with paragraphs (c), (e) and (f) of this section, including 
the airline, charter or air taxi operator, and travel service, if any, 
offering that fare to the public, and the dates on which the rates are 
based; or
    (B) The private traveler reimbursement rate available in accordance 
with paragraph (e)(1)(ii) of this section, and the dates on which the 
rate is based.
    (iv) Where the travel is aboard an aircraft owned in part by the 
candidate or an immediate family member of the candidate, the ownership 
or lease agreement specifying the amount of use of the aircraft 
corresponding to the candidate's or an immediate family member's 
ownership interest in the aircraft, as required by paragraph (g)(1)(i) 
and (ii) and (g)(3) of this section, and the certification required by 
paragraph (g)(3) of this section.
    (2) For travel on non-commercial aircraft conducted under paragraph 
(c)(3)(i), (c)(3)(ii), or (e)(2)(i) of this section, the political 
committee on whose behalf the travel is conducted shall maintain 
documentation of:
    (i) The service provider and the size, model, make and tail number 
(or other unique identifier for military aircraft) of the aircraft 
used;
    (ii) An itinerary showing the departure and arrival cities and the 
date(s) of departure and arrival, a list of all passengers on such 
trip, along with a designation of which passengers are and which are 
not campaign travelers; and
    (iii) The lowest unrestricted non-discounted airfare available in 
accordance with paragraphs (c)(3), (e)(2)(i), and (f) of this section, 
including the airline offering that fare, flight number, travel 
service, if any, providing that fare, and the dates on which the rates 
are based.
    (3) For travel by other conveyances, the political committee on 
whose behalf the travel is conducted shall maintain documentation of:
    (i) The service provider and the size, model and make of the 
conveyance used;
    (ii) An itinerary showing the departure and destination locations 
and the date(s) of departure and arrival, a list of all passengers on 
such trip, along with a designation of which passengers are and which 
are not campaign travelers or security personnel; and
    (iii) The commercial fare or rental charge available in accordance 
with paragraphs (d) and (f) of this section for a comparable commercial 
conveyance of sufficient size to accommodate all campaign travelers 
including members of the news media traveling with a candidate, and 
security personnel, if applicable.

PART 113--PERMITTED AND PROHIBITED USES OF CAMPAIGN ACCOUNTS

0
3. The heading of Part 113 is revised to read as set forth above.

0
4. The authority citation for part 113 continues to read as follows:

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


0
5. Section 113.5 is added 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 of such candidate, shall not make any 
expenditure for travel on an aircraft unless the flight is:
    (1) Commercial travel as provided in 11 CFR 100.93(a)(3)(iv);
    (2) Noncommercial travel as provided in 11 CFR 100.93(a)(3)(v), and 
the pro rata share per campaign traveler of the normal and usual 
charter fare or rental charge for travel on a comparable aircraft of 
comparable size, as provided in 11 CFR 100.93(c), is paid by the 
candidate, the authorized committee, or other political committee on 
whose behalf the travel is conducted, to the owner, lessee, or other 
person who provides the aircraft within seven calendar days after the 
date the flight began, except as provided in 11 CFR 100.93(b)(3); or
    (3) Provided by the Federal government or by a State or local 
government.
    (b) House candidates and their leadership PACs. Notwithstanding any 
other provision of the Act or Commission regulations, a candidate for 
the office of Representative in, or Delegate or Resident Commissioner 
to, the Congress, and any authorized committee or leadership PAC of 
such candidate, shall not make any expenditures, or receive any in-kind 
contribution, for travel on an aircraft unless the flight is:
    (1) Commercial travel as provided in 11 CFR 100.93(a)(3)(iv); or
    (2) Provided by the Federal government or by a State or local 
government.
    (c) Exception for aircraft owned or leased by candidates and 
immediate family members of candidates.
    (1) Paragraphs (a) and (b) of this section do not apply to flights 
on aircraft owned or leased by the candidate, or by an immediate family 
member of the candidate, provided that the candidate does not use the 
aircraft more than the candidate's or immediate family member's 
proportional share of ownership, as defined by 11 CFR 100.93(g)(3), 
allows.
    (2) A candidate, or an immediate family member of the candidate, 
will be considered to own or lease an aircraft under the conditions 
described in 11 CFR 100.93(g)(2).
    (3) An ``immediate family member'' is defined in 11 CFR 
100.93(g)(4).
    (d) In-kind contribution. Except as provided in 11 CFR 100.79, the 
unreimbursed value of transportation provided to any campaign traveler 
is an in-kind contribution from the service provider to the candidate 
or political committee on whose behalf, or with whom, the campaign 
traveler traveled. Such contributions are subject to the reporting 
requirements, limitations and prohibitions of the Act.

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

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

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


0
7. Section 9004.7 is amended by revising paragraphs (b)(5)(i), 
(b)(5)(iii), (b)(5)(v), and (b)(8) to read as follows:


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

[[Page 63968]]

amount equal to the applicable rate set forth in 11 CFR 100.93(e).
    * * *
    (iii) If any individual, including a candidate, uses a government 
conveyance, other than an aircraft, for campaign-related travel, the 
candidate's authorized committee shall pay the appropriate government 
entity an amount equal to the amount required under 11 CFR 100.93(d).
    * * *
    (v) For travel by aircraft, the committee shall maintain 
documentation as required by 11 CFR 100.93(j)(1) in addition to any 
other documentation required in this section. For travel by other 
conveyances, the committee shall maintain documentation of the 
commercial rental rate as required by 11 CFR 100.93(j)(3) in addition 
to any other documentation required in this section.
* * * * *
    (8) Non-commercial travel, as defined in 11 CFR 100.93(a)(3)(v), on 
aircraft, and travel on other means of transportation not operated for 
commercial passenger service, is governed by 11 CFR 100.93.

PART 9034--ENTITLEMENTS

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

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


0
9. Section 9034.7 is amended by revising paragraphs (b)(5)(i), 
(b)(5)(iii), (b)(5)(v), and (b)(8) to read as follows:


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)(1) in addition to any 
other documentation required in this section. For travel by other 
conveyances, the committee shall maintain documentation of the 
commercial rental rate as required by 11 CFR 100.93(j)(3) in addition 
to any other documentation required in this section.
* * * * *
    (8) Non-commercial travel on aircraft, and travel on other means of 
transportation not operated for commercial passenger service is 
governed by 11 CFR 100.93.

    Dated: November 20, 2009.

    On behalf of the Commission.
Steven T. Walther,
Chairman, Federal Election Commission.
[FR Doc. E9-28637 Filed 12-4-09; 8:45 am]
BILLING CODE 6715-01-P