This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

76626

Vol. 69, No. 245

Wednesday, December 22, 2004

1The Commission notes that the proposed rules 

would not apply to any entity that is required to 

file electronically under 104.18(a) because 

electronic filings are considered filed only when 

they are received and validated by the 

Commission’s electronic filing system. See 11 CFR 

100.19(c).

2Certain types of paper reports are specifically 

excluded from the definition of ‘‘timely filed’’ at 11 

CFR 100.19(b) and have their own particular filing 

dates specified in section 104. Because 48-hour 

contribution reports, independent expenditure 

reports, and 24-hour electioneering 

communications reports are considered filed only 

upon receipt by the Commission, the proposed 

rules would not apply to these types of reports. 

Additionally, a candidate’s notification of 

expenditure from personal funds is considered filed 

only upon receipt of the notification by certain 

parties, and therefore the proposed rules would not 

apply to these notifications.

3As discussed below, the Commission proposes 

to define ‘‘postmark’’ to include a USPS postmark 

and the verifiable date of deposit with an overnight 

delivery service.

FEDERAL ELECTION COMMISSION 

11 CFR Parts 100 and 104 

[Notice 2004–19] 

Filing Documents by Priority Mail, 

Express Mail, and Overnight Delivery 

Service

AGENCY: Federal Election Commission.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Federal Election 

Commission requests comments on 

proposed changes to its rules regarding 

the timely filing of designations, reports, 

and statements. The Consolidated 

Appropriations Act, 2004 added Priority 

Mail, Express Mail, and delivery by an 

overnight delivery service to the section 

of the Federal Election Campaign Act of 

1971, as amended, setting forth when 

and by what means certain paper 

documents are considered timely filed 

prior to actual receipt by the 

Commission or the Secretary of the 

Senate. No final decision has been made 

by the Commission on the issues 

presented in this rulemaking. Further 

information is provided in the 

SUPPLEMENTARY INFORMATION that 

follows.

DATES: Comments must be received on 

or before January 21, 2005.

ADDRESSES: All comments should be 

addressed to Mr. Brad C. Deutsch, 

Assistant General Counsel, and must be 

submitted in either electronic or written 

form. Commenters are strongly 

encouraged to submit comments 

electronically to ensure timely receipt 

and consideration. Electronic mail 

comments should be sent to 

timely05@fec.gov and may also be 

submitted through the Federal 

eRegulations Portal at 

www.regulations.gov. All electronic 

comments must include the full name, 

electronic mail address, and postal 

service address of the commenter. 

Electronic comments that do not contain 

the full name, electronic mail address, 

and postal service address of the 

commenter will not be considered. If the 

electronic comments include an 

attachment, the attachment must be in 

the Adobe Acrobat (.pdf) or Microsoft 

Word (.doc) format. Faxed comments 

should be sent to (202) 219–3923, with 

printed copy follow-up. Written 

comments and printed copies of faxed 

comments should be sent to the Federal 

Election Commission, 999 E Street, 

NW., Washington, DC 20463. The 

Commission will post public comments 

on its Web site.

FOR FURTHER INFORMATION CONTACT: Mr. 

Brad C. Deutsch, Assistant General 

Counsel, or Ms. Esa L. Sferra, Attorney, 

999 E Street NW., Washington, DC 

20463, (202) 694–1650 or (800) 424–

9530.

SUPPLEMENTARY INFORMATION: The 

Consolidated Appropriations Act, 2004, 

Pub. L. 108–199, div. F, tit. VI, § 641, 

188 Stat. 3, (the ‘‘2004 Appropriations 

Act’’) amended the Federal Election 

Campaign Act of 1971, as amended, 

(‘‘FECA’’) to permit filers to use 

additional delivery options to satisfy the 

Commission’s ‘‘timely filing’’ 

requirements for certain designations, 

reports, and statements filed on paper 

with the Commission or the Secretary of 

the Senate. Section 434(a) of FECA 

previously permitted reliance on a U.S. 

Postal Service (‘‘USPS’’) postmark date 

as the date the Commission considers 

certain documents timely filed, but only 

if the document was sent by either 

registered or certified mail. The 2004 

Appropriations Act amended 2 U.S.C. 

434(a)(2)(A)(i), (4)(A)(ii), and (5) to 

allow filers sending these documents 

via USPS Priority Mail and Express Mail 

also to rely on the date of the USPS 

postmark as the date of filing, so long 

as the mailing has a delivery 

confirmation. The amendments to 2 

U.S.C. 434(a) also allow filers sending 

these documents with an overnight 

delivery service to rely on the date of 

deposit with the overnight delivery 

service as the date of filing, so long as 

the overnight delivery service has an online tracking system. 

To implement these statutory 

amendments, the Commission proposes 

to amend 11 CFR 100.19, which sets 

forth when a document is ‘‘timely 

filed,’’ and 11 CFR 104.5, which 

specifies due dates for reports.1

I. 11 CFR 100.19(b). Timely Filed 

Under paragraph (b) of current 11 CFR 

100.19, certain documents that are not 

required to be filed electronically are 

‘‘timely filed’’ if they are deposited as 

registered or certified mail in a U.S. Post 

Office and are postmarked no later than 

11:59 p.m. Eastern Standard/Daylight 

Time on the date the document is due 

to be filed. One exception in paragraph 

(b), however, is that pre-election reports 

filed by political committees must be 

postmarked at least 15 days before the 

election to be ‘‘timely filed,’’ which is 

three days earlier than such report’s due 

date.

The Commission proposes to divide 

current paragraph (b) into three 

subparagraphs: (1) One subparagraph 

containing the definition of ‘‘timely 

filed’’ for documents that are sent by 

registered or certified mail, Priority 

Mail, Express Mail, or with an overnight 

delivery service; (2) one subparagraph 

retaining the current requirement that 

documents sent by first class mail are 

‘‘timely filed’’ only upon receipt by the 

Commission or Secretary of the Senate, 

as appropriate; and (3) one 

subparagraph containing new 

definitions of ‘‘overnight delivery 

service’’ and ‘‘postmark.’’ 

A. Proposed 11 CFR 100.19(b)(1) 

Proposed paragraph (b)(1) specifies 

that any paper document required to be 

filed under Commission regulations, 

other than those specified in 11 CFR 

100.19(c)–(g),2 will be considered 

‘‘timely filed’’ so long as the document 

is postmarked 3 by the due date and was 

deposited: (1) As registered or certified 

mail in an established U.S. Post Office; 

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules 76627

4See http://www.usps.com/all/welcome.htm.

5Priority Mail is a two-to-three day delivery 

option offered by USPS. See http://www.usps.com/

shipping/prioritymail.htm.

6The Commission notes that filers should 

continue to retain proof of mailing or other means 

of transmittal of reports. See 11 CFR 104.5(i).

7 Internal Revenue Service regulations and 

Department of Homeland Security regulations also 

define ‘‘postmark’’ to include private carrier 

postmarks. See e.g., 26 CFR 301.7502–1(c)(1)(iii)(B) 

and 8 CFR 245a.12(a)(3) and (4); see also 50 CFR 

600.10 (Wildlife and Fisheries regulations defining 

‘‘postmark’’ as ‘‘independently verifiable evidence 

of the date of mailing, such as a U.S. Postal Service 

postmark, or other private carrier postmark, 

certified mail receipt, overnight mail receipt, or a 

receipt issued upon hand delivery * * *.’’).

(2) as Priority Mail or Express Mail with 

a delivery confirmation in an 

established U.S. Post Office; or (3) with 

an overnight delivery service, so long as 

the document was scheduled to be 

delivered within three business days of 

deposit and is recorded in the service’s 

on-line tracking system.

The Commission interprets Congress’s 

reference to ‘‘priority mail’’ and 

‘‘express mail’’ as denoting USPS 

Priority Mail and Express Mail because 

both terms are registered trademarks of 

USPS.4 The Commission invites 

comment on whether this interpretation 

is appropriate.

Additionally, the proposed rule 

would permit a filer using an overnight 

delivery service (the proposed 

definition of which is discussed below) 

to use any delivery option offered by 

such a delivery service, so long as the 

document is scheduled to be delivered 

to the Commission or the Secretary of 

the Senate, as appropriate, within three 

business days from the date of deposit, 

similar to the two-to-three day delivery 

time for USPS Priority Mail service.5 In 

the alternative, the Commission invites 

comment on whether filers who use an 

overnight delivery service should be 

limited to using only a next day delivery 

option.

For any filer who uses an overnight 

delivery service and wishes to rely on 

the date of deposit, the 2004 

Appropriations Act amendment to 

FECA requires that the filer use a 

delivery service that has an on-line 

tracking system. Because an on-line 

tracking system will provide a means to 

settle a dispute that may arise 

concerning the timely filing of a 

document (i.e., the date of deposit), the 

Commission interprets the statutory 

requirement to mean that a filer must in 

fact choose a delivery option that 

includes tracking of the document, 

thereby providing the filer, or any other 

person, with the ability to confirm 

deposit and delivery dates.6

Accordingly, the proposed rule would 

require that a document deposited with 

an overnight delivery service be 

recorded in that delivery service’s online tracking system. The Commission 

believes that a definition of ‘‘on-line 

tracking system’’ is not necessary. The 

Commission invites comment on 

whether the amended rule should 

require the use of an on-line tracking 

system when a document is sent via an 

overnight delivery service and on 

whether a definition for ‘‘on-line 

tracking system’’ is necessary.

Proposed paragraph (b)(1) retains the 

current requirement that a document 

must be postmarked no later than 11:59 

p.m. Eastern Standard/Daylight Time on 

the due date, with the exception that 

pre-election reports must be postmarked 

three days earlier than the report’s due 

date. 

B. Proposed 11 CFR 100.19(b)(2) 

Proposed paragraph (b)(2) retains the 

current requirement that documents 

sent by first class mail must be received 

by the close of business on the 

prescribed filing date to be ‘‘timely 

filed.’’ However, the Commission 

proposes to add language to clarify that 

paper documents, other than those 

addressed in 11 CFR 100.19(c)–(g), sent 

by any means other than those specified 

in 11 CFR 100.19(b)(1) (i.e., by 

registered or certified mail, Priority 

Mail, Express Mail, or with an overnight 

delivery service) must be received by 

the close of business on the prescribed 

filing date in order to be ‘‘timely filed.’’

The Commission invites comments on 

this proposed clarification. 

C. Proposed 11 CFR 100.19(b)(3) 

Proposed paragraph (b)(3) contains 

definitions of ‘‘overnight delivery 

service’’ and ‘‘postmark.’’ Proposed 

paragraph (b)(3)(i) would define 

‘‘overnight delivery service’’ as a private 

delivery service of established reliability 

that offers an overnight delivery option. 

As discussed above, the Commission 

proposes to allow filers who use an 

overnight delivery service to select a 

two-to-three day delivery option; 

however, because the 2004 

Appropriations Act specifies ‘‘deliver[y] 

to an overnight delivery service,’’ the 

Commission interprets this to mean that 

a delivery service used must offer an 

overnight (i.e., next day) delivery 

option, even if the sender does not 

choose that option. 2 U.S.C. 434(a), as 

amended by 2004 Appropriations Act. 

The Commission invites comment on 

this proposed definition.

Proposed paragraph (b)(3)(ii) would 

define ‘‘postmark’’ to include both a 

USPS postmark, as well as the verifiable 

date that a document is deposited with 

an overnight delivery service because 

filers may now also rely on the date of 

deposit with an overnight delivery 

service as the date of filing.7 This 

proposed definition recognizes that 

overnight delivery services may record 

the date of deposit in different manners 

and provides flexibility for verification 

of deposit date. The Commission invites 

comment on this proposed definition of 

‘‘postmark.’’

II. 11 CFR 104.5. Filing Dates 

As discussed above, the Commission’s 

current rules specify that a filer may 

rely on the postmark as the date of filing 

for certain paper documents only if the 

document is sent by registered or 

certified mail. Consistent with the 

amendment to FECA resulting from the 

2004 Appropriations Act, however, the 

proposed revision of section 100.19(b) 

would expand the Commission’s 

definition of ‘‘timely filed’’ to allow 

reliance also on a postmark as the date 

of filing for these documents sent by 

Priority Mail, Express Mail, or with an 

overnight delivery service. 

The Commission’s rules at 11 CFR 

104.5(a)(2)(i)(A) and (c)(1)(ii), which 

specify the filing due date for preelection reports, and at 11 CFR 104.5(e), 

which specifies the date the 

Commission considers to be the filing 

date for certain reports required under 

section 104.5, also contain several 

references to reliance on a postmark as 

the date of filing for documents that are 

sent by registered or certified mail. 

Accordingly, the Commission proposes 

to modify these references within 

section 104.5 to include Priority Mail, 

Express Mail, and use of an overnight 

delivery service, consistent with the 

proposed changes to section 100.19(b), 

discussed above. Additionally, the 

Commission proposes to further amend 

11 CFR 104.5(e) to clarify to which 

reports the proposed rules would apply. 

The Commission invites comment on 

these proposed changes. 

Certification of No Effect Pursuant to 5 

U.S.C. 605(b) (Regulatory Flexibility 

Act) 

The attached proposed rules, if 

promulgated, would not have a 

significant economic impact on a 

substantial number of small entities. 

The basis of this certification is that, to 

whatever limited extent these proposed 

rules would affect small entities, 

expanding options for delivering 

Commission-required reports provides 

more flexibility to filers in choosing the 

method of fulfilling their filing 

requirements and the new methods are 

permissive, not required. Therefore, the 

76628 Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules 

proposed rules would not increase costs 

of compliance and may decrease such 

costs.

List of Subjects 

11 CFR Part 100 

Elections. 

11 CFR Part 104 

Campaign funds, Political committees 

and parties, Reporting and 

recordkeeping requirements.

For the reasons set forth in the 

preamble, the Federal Election 

Commission proposes to amend 

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) 

1. The authority citation for Part 100 

would continue to read as follows:

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

3. Section 100.19 would be amended 

by revising paragraph (b) to read as 

follows:

§ 100.19 File, filed or filing (2 U.S.C. 

434(a)).

* * * * *

(b) Timely filed. (1) A document, 

other than those addressed in 

paragraphs (c) through (g) of this 

section, is timely filed if: 

(i) Deposited: 

(A) As registered or certified mail in 

an established U.S. Post Office; 

(B) As Priority Mail or Express Mail, 

with a delivery confirmation, in an 

established U.S. Post Office; or 

(C) With an overnight delivery service 

and scheduled to be delivered no more 

than three business days after the date 

of deposit and recorded in the overnight 

delivery service’s on-line tracking 

system; and 

(ii) The postmark on the document 

must be dated no later than 11:59 p.m. 

Eastern Standard/Daylight Time on the 

filing date, except that pre-election 

reports must have a postmark dated no 

later than 11:59 p.m. Eastern Standard/

Daylight Time on the fifteenth day 

before the date of the election. 

(2) Documents, other than those 

addressed in paragraphs (c) through (g) 

of this section, sent by first class mail 

or by any means other than those listed 

in paragraph (b)(1)(i) of this section 

must be received by the close of 

business on the prescribed filing date to 

be timely filed. 

(3) As used in this paragraph (b) and 

in § 104.5, 

(i) Overnight delivery service means a 

private delivery service business of 

established reliability that offers an 

overnight delivery service option. 

(ii) Postmark means a U.S. Postal 

Service postmark or the verifiable date 

of deposit with an overnight delivery 

service.

* * * * *

PART 104—REPORTS BY POLITICAL 

COMMITTEES AND OTHER PERSONS 

(2 U.S.C. 434) 

3. The authority citation for Part 104 

would continue to read as follows:

Authority: 2 U.S.C. 431(1), 431(8), 431(9), 

432(i), 434, 438(a)(8) and (b), 439a, 441a, and 

36 U.S.C. 510.

4. Section 104.5 would be amended 

by revising paragraphs (a)(2)(i)(A), 

(c)(1)(ii)(A), and (e) to read as follows:

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

(a) * * * 

(2) Additional reports in the election 

year. (i) Pre-election reports. (A) Preelection reports for the primary and 

general election must be filed no later 

than 12 days before any primary or 

general election in which the candidate 

seeks election. If sent by registered or 

certified mail, Priority Mail or Express 

Mail with a delivery confirmation, or by 

an overnight delivery service and 

scheduled to be delivered no more than 

three business days from deposit and 

recorded in the overnight delivery 

service’s on-line tracking system, the 

postmark on the report must be dated no 

later than the 15th day before any 

election.

* * * * *

(c) * * * 

(1) * * * 

(ii) Pre-election reports. (A) Preelection reports for the primary and 

general election shall be filed by a 

political committee which makes 

contributions or expenditures in 

connection with any such election if 

such disbursements have not been 

previously disclosed. Pre-election 

reports shall be filed no later than 12 

days before any primary or general 

election. If sent by registered or certified 

mail, Priority Mail or Express Mail with 

a delivery confirmation, or by an 

overnight delivery service and 

scheduled to be delivered no more than 

three business days from deposit and 

recorded in an on-line tracking system, 

the postmark on the report shall be 

dated no later than the 15th day before 

any election.

* * * * *

(e) Date of filing. A designation, report 

or statement, other than those addressed 

in paragraphs (f), (g), and (j) of this 

section, sent by registered or certified 

mail, Priority Mail or Express Mail with 

a delivery confirmation, or by an 

overnight delivery service and 

scheduled to be delivered no more than 

three business days from deposit and 

recorded in an on-line tracking system, 

shall be considered filed on the date of 

the postmark except that a twelve day 

pre-election report sent by such mail or 

overnight delivery service must have a 

postmark dated no later than the 15th 

day before any election. Designations, 

reports or statements, other than those 

addressed in paragraphs (f), (g), and (j) 

of this section, sent by first class mail, 

or by any means other than those lists 

in this paragraph (e), must be received 

by the close of business of the 

prescribed filing date to be timely filed. 

Designations, reports or statements 

electronically filed must be received 

and validated at or before 11:59 p.m., 

Eastern Standard/Daylight Time on the 

prescribed filing date to be timely filed.

* * * * *

Dated: December 17, 2004. 

Bradley A. Smith, 

Chairman, Federal Election Commission.

[FR Doc. 04–27972 Filed 12–21–04; 8:45 am] 

BILLING CODE 6715–01–P

FEDERAL ELECTION COMMISSION

11 CFR Part 114 

[Notice 2004–18] 

Payroll Deductions by Member 

Corporations for Contributions to a 

Trade Association’s Separate 

Segregated Fund

AGENCY: Federal Election Commission.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Federal Election 

Commission requests comments on 

proposed amendments to its rules 

regarding contributions to the separate 

segregated fund (‘‘SSF’’) of a trade 

association by employee-stockholders 

and executive and administrative 

personnel (collectively, ‘‘restricted class 

employees’’) of corporations that are 

members of the trade association. 

Currently, the Commission’s regulations 

prohibit any corporate member of a 

trade association from using a payroll 

deduction or check-off system for 

employee contributions to the trade 

association’s SSF. The Commission 

proposes to amend its regulations to 

permit a corporate member of a trade 

association to provide incidental 

services to collect and forward 

contributions from its restricted class 

employees to the SSF of the trade 

association, including a payroll