[Federal Register Volume 69, Number 245 (Wednesday, December 22, 2004)]
[Proposed Rules]
[Pages 76626-76628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27972]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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

[[Page 76626]]



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.

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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 <a href="/cdn-cgi/l/email-protection#4034292d252c397075002625236e272f36"><span class="__cf_email__" data-cfemail="90e4f9fdf5fce9a0a5d0f6f5f3bef7ffe6">[email protected]</span></a> 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, Sec.  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 on-line 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\
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    \1\ The 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).
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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;

[[Page 76627]]

(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.
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    \2\ Certain 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.
    \3\ As discussed below, the Commission proposes to define 
``postmark'' to include a USPS postmark and the verifiable date of 
deposit with an overnight delivery service.
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    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.
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    \4\ See http://www.usps.com/all/welcome.htm.
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    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.
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    \5\ Priority Mail is a two-to-three day delivery option offered 
by USPS. See http://www.usps.com/shipping/prioritymail.htm.
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    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 on-line 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.
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    \6\ The Commission notes that filers should continue to retain 
proof of mailing or other means of transmittal of reports. See 11 
CFR 104.5(i).
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    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.''
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    \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 * * *.'').
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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 pre-election 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

[[Page 76628]]

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:


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

* * * * *
    (b) Timely filed. (1) A document, other than those addressed in 
paragraphs (c) through (g) of this section, is timely filed if:
    (i) Deposited:
    (A) As registered or certified mail in an established U.S. Post 
Office;
    (B) As Priority Mail or Express Mail, with a delivery confirmation, 
in an established U.S. Post Office; or
    (C) With an overnight delivery service and scheduled to be 
delivered 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 Sec.  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:


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

    (a) * * *
    (2) Additional reports in the election year. (i) Pre-election 
reports. (A) Pre-election reports for the primary and general election 
must be filed no later than 12 days before any primary or general 
election in which the candidate seeks election. If sent by registered 
or certified mail, Priority Mail or Express Mail with a delivery 
confirmation, or 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) Pre-election reports for the primary 
and general election shall be filed by a political committee which 
makes contributions or expenditures in connection with any such 
election if such disbursements have not been previously disclosed. Pre-
election reports shall be filed no later than 12 days before any 
primary or general election. If sent by registered or certified mail, 
Priority Mail or Express Mail with a delivery confirmation, or 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


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