[Federal Register Volume 74, Number 248 (Tuesday, December 29, 2009)]
[Rules and Regulations]
[Pages 68661-68662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30767]



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 Rules and Regulations
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  Federal Register / Vol. 74, No. 248 / Tuesday, December 29, 2009 / 
Rules and Regulations  

[[Page 68661]]



FEDERAL ELECTION COMMISSION

11 CFR Parts 100 and 106

[Notice 2009-30]


Funds Received in Response to Solicitations; Allocation of 
Expenses by Separate Segregated Funds and Nonconnected Committees

AGENCY: Federal Election Commission.

ACTION: Interim final rule.

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

SUMMARY: The United States District Court for the District of Columbia 
ordered that the Federal Election Commission's (``Commission'') rules 
regarding funds received in response to solicitations and the 
allocation of certain expenses by separate segregated funds and 
nonconnected committees are vacated. The Commission is inserting a note 
to these regulations that reflects the court's decision. The Commission 
will engage in a separate notice of rulemaking to remove these rules 
from the Code of Federal Regulations. Further information is provided 
in the supplementary information that follows.

DATES: The interim final rule is effective on December 29, 2009. 
Comments must be received on or before January 28, 2010.

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

FOR FURTHER INFORMATION CONTACT: Mr. Robert M. Knop, Assistant General 
Counsel, or Mr. Neven F. Stipanovic, Attorney, 999 E Street, NW., 
Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: On September 18, 2009, the United States 
Court of Appeals for the DC Circuit (``DC Circuit Court'') ruled that 
11 CFR 100.57, 106.6(c), and 106.6(f) violated the First Amendment of 
the United States Constitution. See EMILY's List v. FEC, 581 F.3d 1 (DC 
Cir. 2009). The court also ruled that 11 CFR 100.57 and 106.6(f), as 
well as one provision of 106.6(c), exceeded the Commission's authority 
under the Federal Election Campaign Act (``Act''). See id. At the 
direction of the DC Circuit Court, the United States District Court for 
the District of Columbia ordered that these rules are vacated. See 
Final Order, EMILY's List v. FEC, No. 05-0049 (D.DC Nov. 30, 2009). The 
Commission is now inserting a note to 11 CFR 100.57, 106.6(c), and 
106.6(f) that reflects this court order.
    The Commission will issue a separate notice of rulemaking document 
to implement the court's order vacating 11 CFR 100.57, 106.6(c), and 
106.6(f) from the regulations pursuant to the EMILY's List decision. 
The Commission is first inserting a note to give the public immediate 
guidance that these provisions were vacated by court order while the 
Commission completes the rulemaking process of implementing the EMILY's 
List decision.

Administrative Procedure Act

    The Commission is issuing this rule as an interim final rule. This 
interim final rule will take effect immediately upon publication in the 
Federal Register. The public nonetheless may comment on this interim 
final rule and the Commission may address any comments received in a 
later rulemaking document.
    The Administrative Procedure Act (``APA'') requires an agency 
promulgating regulations to publish a notice of a proposed rulemaking 
in the Federal Register. 5 U.S.C. 553(b). The notice and comment 
requirement does not apply, however, ``when the agency for good cause 
finds (and incorporates the finding and a brief statement of reasons 
therefore in the rules issued) that notice and public procedure thereon 
are impracticable, unnecessary, or contrary to the public interest.'' 5 
U.S.C. 553(b)(B). The notice and comment requirement in this case is 
unnecessary because the Commission action is merely to insert language 
reciting the fact that the DC District Court has ordered that the 
aforementioned regulations are vacated. The result of the court's order 
is that neither public notice nor a comment period is likely to benefit 
the Commission in this rulemaking. This interim final rule is merely an 
informational amendment indicating that a court has issued an order 
concerning these rules.
    Moreover, the notice and comment period may be contrary to the 
public interest. The Commission notes that the 2010 elections for 
Federal office are scheduled to begin as early as February 2010, when 
some States begin holding their primary elections. The State of 
Illinois, for example, will hold its 2010 primary election on February 
2, 2010. See http://www.elections.il.gov/Votinginformation/2010GPGE.aspx. It is urgent, therefore, to give immediate notice to the 
public that these rules have been vacated by court order. The 
additional delay that would be incurred by providing notice and an 
opportunity to comment could be contrary to the public interest.
    For the same reasons, this interim final rule is not subject to the 
APA's thirty day delayed effective date requirement under the ``good 
cause'' exemption to the delayed effective date requirement. 5 U.S.C. 
553(d)(3).

Regulatory Flexibility Act

    Because this interim final rule is exempt from the notice and 
comment procedure under 5 U.S.C. 553(b), the Commission is not required 
to conduct a regulatory flexibility analysis under 5 U.S.C. 603 and 604 
(Regulatory Flexibility Act). See 5 U.S.C. 601(2) and 604(a).

[[Page 68662]]

List of Subjects

11 CFR Part 100

    Elections.

11 CFR Part 106

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

0
For the reasons set out in the preamble, the Commission is amending 
Subchapter A of Chapter I of Title 11 of the Code of Federal 
Regulations as follows:

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

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

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

0
2. Section 100.57 is amended by adding a note to read as follows:


Sec.  100.57  Funds received in response to solicitations.

* * * * *

    Note to Sec.  100.57:  On November 30, 2009, the United States 
District Court for the District of Columbia ordered that Sec.  
100.57 is vacated. See Final Order, EMILY's List v. FEC, No. 05-0049 
(D.D.C. Nov. 30, 2009).

PART 106--ALLOCATIONS OF CANDIDATE AND COMMITTEE ACTIVITIES

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

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

0
4. Section 106.6 is amended by adding a note to read as follows:


Sec.  106.6  Allocation of expenses between federal and non-federal 
activities by separate segregated funds and nonconnected committees.

* * * * *

    Note to 11 CFR 106.6:  On November 30, 2009, the United States 
District Court for the District of Columbia ordered that paragraphs 
(c) and (f) of Sec.  106.6 are vacated. See Final Order, EMILY's 
List v. FEC, No. 05-0049 (D.D.C. Nov. 30, 2009).


    Dated: December 21, 2009.

    On behalf of the Commission,
Steven T. Walther,
Chairman, Federal Election Commission.
[FR Doc. E9-30767 Filed 12-28-09; 8:45 am]
BILLING CODE 6715-01-P