53674 Federal Register / Vol. 74, No. 201 / Tuesday, October 20, 2009 / Proposed Rules 

1Pub. L. 107–155, 116 Stat. 81 (2002). 

2 ‘‘Federal funds’’ are funds subject to the 

limitations, prohibitions, and reporting 

requirements of the Act. See 11 CFR 300.2(g). 

3 ‘‘Levin funds’’ are funds raised and disbursed by 

State, district, or local party committees pursuant 

to certain restrictions. See 2 U.S.C. 441i(b); see also 

11 CFR 300.2(i). 

4 In addition to GOTV activity, Type II Federal 

election activity also includes ‘‘voter identification’’ 

and ‘‘generic campaign activity.’’ See 2 U.S.C. 

431(20)(A)(ii); 11 CFR 100.24; 100.25. Types III and 

IV Federal election activity are outside the scope of 

this rulemaking and are not discussed. They pertain 

to public communications that refer to a clearly 

identified Federal candidate and promote, support, 

attack or oppose a candidate for Federal office 

(Type III), and services provided by an employee of 

a State, district, or local committee of a political 

party who spends more than 25 percent of his or 

her compensated time on activities in connection 

with a Federal election (Type IV). Types I and II 

Federal election activity may be funded with a 

combination of Federal and Levin funds; Types III 

and IV Federal election activity must be funded 

entirely with Federal funds. 

of regulations for biocontainment 

facilities. 

∑ Implement a comprehensive risk 

reduction program (more expansive 

regulations to address specific risk 

categories). This would be characterized 

as a broad risk mitigation strategy that 

could involve various options such as 

increased inspection, regulations 

specific to a certain organism or group 

of related organisms, or extensive 

biocontainment requirements. While not 

the preferred alternative at this time, the 

risk mitigation strategy considered 

within this alternative could provide the 

basis at some point for future Agency 

regulatory actions, either to establish a 

new and more appropriate regulatory 

framework for the movement of plant 

pests, biological control organisms, and 

associated articles, or to augment the 

existing regulations with more effective 

mitigation measures to address the risk 

of such movement. 

We will examine the potential effects 

on the human environment of each 

alternative. We are also interested in 

comments that identify other issues that 

should be examined in the EIS. 

Potential issues include other new 

mitigation measures, logistical 

considerations, environmental 

regulations and constraints, and 

harmonization of regulatory efforts. 

The EIS will be prepared in 

accordance with: (1) The National 

Environmental Policy Act of 1969, as 

amended (42 U.S.C. 4321 et seq.), (2) 

regulations of the Council on 

Environmental Quality for 

implementing the procedural provisions 

of NEPA (40 CFR parts 1500-1508), (3) 

USDA regulations implementing NEPA 

(7 CFR part 1b), and (4) APHIS’ NEPA 

Implementing Procedures (7 CFR part 

372). 

Comments regarding the proposed 

scope of the EIS are welcome and will 

be considered fully. When APHIS has 

completed a draft EIS, a notice 

announcing its availability and an 

invitation to comment on it will be 

published in the Federal Register. 

Done in Washington, DC, this 14th day 

of October, 2009. 

Kevin Shea 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. E9–25184 Filed 10–19–09: 8:45 am] 

BILLING CODE: 3410–34–S 

FEDERAL ELECTION COMMISSION 

11 CFR Part 100 

[Notice 2009–22] 

Definition of Federal Election Activity 

AGENCY: Federal Election Commission. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Federal Election 

Commission seeks comments on 

proposed changes to its rules regarding 

the definitions of ‘‘voter registration 

activity’’ and ‘‘get-out-the-vote activity’’ 

under the Federal Election Campaign 

Act of 1971, as amended. These 

proposed changes are in response to the 

decision of the U.S. Court of Appeals for 

the District of Columbia Circuit in Shays 

v. FEC. The Commission has made no 

final decision 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 November 20, 2009. The 

Commission will hold a hearing on 

these proposed rules on Wednesday, 

December 16, 2009 at 9:30 a.m. and, if 

necessary, Thursday, December 17, 2009 

at 9:30 a.m. Anyone wishing to testify 

at the hearing must file written 

comments by the due date and must 

include a request to testify in the 

written comments. 

ADDRESSES: All comments must be in 

writing, addressed to Ms. Amy L. 

Rothstein, Assistant General Counsel, 

and submitted in either electronic, 

facsimile or hard copy form. 

Commenters are strongly encouraged to 

submit comments electronically to 

ensure timely receipt and consideration. 

Electronic comments should be sent to 

FEAShays3@fec.gov. If the electronic 

comments include an attachment, the 

attachment must be in Adobe Acrobat 

(.pdf) or Microsoft Word (.doc) format. 

Faxed comments should be sent to (202) 

219–3923, with hard copy follow-up. 

Hard copy comments and hard copy 

follow-up of faxed comments should be 

sent to the Federal Election 

Commission, 999 E Street, NW., 

Washington, DC 20463. All comments 

must include the full name and postal 

service address of the commenter or 

they will not be considered. The 

Commission will post comments on its 

web site after the comment period ends. 

The hearing will be held in the 

Commission’s ninth floor meeting room, 

999 E Street, NW., Washington, DC. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy L. Rothstein, Assistant General 

Counsel, or Attorneys Mr. David C. 

Adkins or Mr. Neven F. Stipanovic, 999 

E Street, NW., Washington, DC 20463, 

(202) 694–1650 or (800) 424–9530. 

SUPPLEMENTARY INFORMATION: The 

Bipartisan Campaign Reform Act of 

2002 1 (‘‘BCRA’’) contained extensive 

and detailed amendments to the Federal 

Election Campaign Act of 1971, as 

amended, 2 U.S.C. 431 et seq. (‘‘the 

Act’’). The Commission promulgated a 

number of rules to implement BCRA, 

including rules defining the terms 

‘‘voter registration activity’’ and ‘‘getout-the-vote activity’’ (‘‘GOTV activity’’) 

at 11 CFR 100.24(a). The Court of 

Appeals for the District of Columbia 

Circuit found aspects of these rules 

invalid in Shays v. FEC, 528 F.3d 914 

(D.C. Cir. 2008) (‘‘Shays III Appeal’’). 

The Commission seeks comment on 

proposed changes to the rules at 11 CFR 

100.24 to implement the Shays III 

Appeal decision. 

I. Background 

A. BCRA 

The Act, as amended by BCRA, and 

Commission regulations provide that a 

State, district, or local committee of a 

political party must pay for certain 

‘‘Federal election activities’’ with either 

entirely Federal funds 2 or, in other 

instances, a mix of Federal funds and 

‘‘Levin funds.’’ 3 See 2 U.S.C. 441i(b); 11 

CFR 300.32. The Act identifies four 

types of activity that are subject to these 

funding restrictions, including ‘‘voter 

registration activity’’—Type I Federal 

election activity—and GOTV activity— 

Type II Federal election activity. See 2 

U.S.C. 431(20)(A)(i) and (ii); 441i(b); 11 

CFR 100.24(a)(2) and (3).4

Application of BCRA’s Federal 

election activity funding restrictions for 

Types I and II Federal election activity 

is conditioned upon the timing of the 

activity. Voter registration activity (Type 


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I), for example, constitutes Federal 

election activity, and therefore is subject 

to BCRA’s funding restrictions, only if it 

is conducted ‘‘120 days before the date 

a regularly scheduled Federal election is 

held.’’ 2 U.S.C. 431(20)(A)(i). Similarly, 

voter identification, GOTV activity, and 

generic campaign activity are Federal 

election activity only if they are 

conducted ‘‘in connection with an 

election in which a candidate for 

Federal office appears on the ballot.’’ 2 

U.S.C. 431(20)(A)(ii). 

In BCRA, Congress chose to restrict 

the funds that State, district, and local 

party committees could use for Federal 

election activity because it determined 

that these activities influence Federal 

elections. See 148 Cong. Rec. S2139 

(daily ed. Mar. 20, 2002) (statement of 

Sen. McCain) (noting, for example, that 

‘‘get-out-the-vote and voter registration 

drives * * * are designed to, and do 

have an unmistakable impact on both 

Federal and non-Federal elections’’). 

Restrictions on the funding of Federal 

election activity by State, district, and 

local party committees are critical 

because they prevent evasion of BCRA’s 

restrictions on the raising and spending 

of non-Federal funds by national party 

committees and Federal candidates and 

officeholders. See Final Rules on 

Prohibited and Excessive Contributions: 

Non-Federal Funds or Soft Money, 67 

FR 49064–65 (July 29, 2002) (‘‘2002 

Final Rule’’). Indeed, in passing BCRA’s 

Federal election activity provisions, 

Congress had in mind ‘‘the very real 

danger that Federal contribution limits 

could be evaded by diverting funds to 

State and local parties, which then use 

those funds for Federal election 

activity.’’ See 148 Cong. Rec. S2138 

(daily ed. Mar. 20, 2002) (statement of 

Sen. McCain). 

The Supreme Court upheld BCRA’s 

Federal election activity provisions in 

McConnell v. FEC, 124 S. Ct. 619, 670– 

77 (2003). The Court found that nonFederal funds given to State, district, 

and local party committees could have 

the same corrupting influence as nonFederal funds given to the national 

parties and therefore held that BCRA’s 

Federal election activity restrictions 

were justified by an important 

government interest. Id. at 672–73. 

Indeed, the Court held that BCRA’s 

Federal election activity provisions 

were likely necessary to prevent 

‘‘corrupting activity from shifting 

wholesale to state committees and 

thereby eviscerating [the Act].’’ Id. at 

673. 

In reaching its decision, the Court 

noted that BCRA regulated only ‘‘those 

contributions to State and local parties 

that can be used to benefit federal 

candidates directly’’ and therefore 

posed the greatest threat of corruption. 

Id. at 673–74. As such, the Court found 

BCRA’s regulation of voter registration 

activities, which ‘‘directly assist the 

party’s candidates for federal office,’’ 

and GOTV activities, from which 

Federal candidates ‘‘reap substantial 

rewards,’’ to be permissible methods of 

countering both corruption and the 

appearance of corruption. Id. at 674; see 

also id. at 675 (finding that voter 

registration activities and GOTV 

activities ‘‘confer substantial benefits on 

federal candidates’’ and ‘‘the funding of 

such activities creates a significant risk 

of actual and apparent corruption,’’ 

which BCRA aims to minimize). 

B. Rulemakings 

Although BCRA defines Federal 

election activity to include ‘‘voter 

registration activity’’ and ‘‘GOTV 

activity,’’ it did not specifically define 

those underlying terms. See 2 U.S.C. 

431(20)(A)(ii)–(iii). Accordingly, the 

Commission promulgated definitions of 

these terms. 

1. 2002 Rulemaking 

The Commission first promulgated 

definitions of ‘‘voter registration 

activity’’ and ‘‘GOTV activity’’ on July 

29, 2002. See 2002 Final Rule, 67 FR at 

49067. The 2002 Final Rule defined 

‘‘voter registration activity’’ as 

‘‘contacting individuals by telephone, in 

person, or by other individualized 

means to assist them in registering to 

vote.’’ Id. at 49110. The Explanation and 

Justification (‘‘E&J’’) accompanying the 

rule noted that the definition was 

limited to ‘‘individualized contact for 

the specific purpose of assisting 

individuals with the process of 

registering to vote.’’ Id. at 49067. The 

Commission expressly rejected an 

approach whereby mere encouragement 

to register to vote would have 

constituted voter registration activity. 

The Commission was concerned that 

taking such an approach would result in 

‘‘thousands of political committees and 

grassroots organizations that merely 

encouraged voting as a civic duty, who 

have never been subject to Federal 

regulation for such conduct, [being] 

swept into the extensive reporting and 

filing requirements mandated under 

Federal law.’’ Id. 

The Commission similarly defined 

‘‘GOTV activity’’ in 2002 as ‘‘contacting 

registered voters by telephone, in 

person, or by other individualized 

means to assist them in engaging in the 

act of voting.’’ Id. at 49111. In adopting 

this construction, the Commission 

sought to distinguish GOTV activity 

from ‘‘ordinary or usual campaigning,’’ 

to avoid ‘‘federaliz[ing] a vast 

percentage’’ of the campaign activity 

that a State, district, or local party 

committee may conduct on behalf of its 

candidates. Id. at 49067. The 

Commission’s definition focused on 

actions directed toward registered voters 

that had the particular purpose of 

‘‘assisting registered voters to take any 

and all steps to get to the polls and cast 

their ballots, or to vote by absentee 

ballot or other means provided by law.’’ 

Id. The definition was not intended to 

cover activity aimed at ‘‘generally 

increasing public support for a 

candidate or decreasing public support 

for an opposing candidate.’’ Id. 

The Commission’s 2002 definition of 

GOTV activity also expressly excluded 

‘‘any communication by an association 

or similar group of candidates for State 

and local office or of individuals 

holding State or local office if such 

communication refers only to one or 

more [S]tate or local candidates,’’ in 

order to keep ‘‘State and local 

candidates’ grassroots and local political 

activity a question of State, not Federal, 

law.’’ Id. The Commission declined to 

read BCRA as extending ‘‘to purely State 

and local activity by State and local 

candidates’’ and concluded that such ‘‘a 

vast federalization of State and local 

activity’’ required ‘‘greater direction 

from Congress.’’ Id. 

The Commission’s 2002 definitions of 

voter registration activity and GOTV 

activity were challenged in Shays v. 

FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) 

(‘‘Shays I District’’). The district court 

held that the definition of ‘‘voter 

registration activity,’’ which required 

actual assistance, was neither 

inconsistent with congressional intent 

nor an impermissible construction of 

BCRA. See Shays I District, 337 F. Supp. 

2d at 100 (applying Chevron U.S.A., Inc. 

v. Natural Res. Def. Council, Inc., 467 

U.S. 837 (1984)). The court further held 

that the ‘‘exact parameters’’ of the 

regulatory definition were unclear and, 

therefore, it was unable to determine if 

the definition ‘‘unduly compromised’’ 

BCRA’s purpose. Id. Nevertheless, the 

court found that the Commission’s 

definition was promulgated without 

adequate notice and opportunity for 

comment, contrary to the 

Administrative Procedure Act; see 5 

U.S.C. 553, and remanded the regulation 

to the Commission. See Shays I District, 

337 F. Supp. 2d at 100. 

The court reached similar conclusions 

as to the definition of ‘‘GOTV activity,’’ 

holding that the definition of ‘‘voter 

registration activity,’’ which required 

actual assistance, was neither 

inconsistent with congressional intent 

nor an impermissible construction of 


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5The Commission did change other aspects of the 

GOTV activity definition in response to the Shays 

I District court decision. The Commission removed 

from the definition of ‘‘GOTV activity’’ the 

exemption for communications by associations and 

groups of State or local candidates or officeholders. 

See 2006 Final Rule, 71 FR at 8931. The 

Commission also removed from the examples of 

GOTV activity the phrase ‘‘within 72 hours of an 

election,’’ to clarify that the definition covered 

activity conducted more than 72 hours before an 

election. See id. at 8930–31. 

6The proposed communications would have been 

made four or more days before the election, would 

have informed recipients of the date of the election, 

would have urged them to vote for local, but not 

Federal, candidates, and would not have included 

additional information such as the hours and 

location of the individual voter’s polling place. The 

Commission concluded that the communications 

would provide neither actual assistance nor 

sufficiently individualized assistance to constitute 

GOTV activity and that, as a result, the 

communications could be funded exclusively with 

non-Federal funds. 

BCRA. Id. at 103, 105 (applying 

Chevron). The court also concluded that 

there was ‘‘ambiguity as to what acts are 

encompassed by the regulation,’’ which 

rendered the court unable to determine 

whether the definition of ‘‘GOTV 

activity’’ unduly compromised BCRA. 

Id. at 105. As it had with the definition 

of ‘‘voter registration activity,’’ however, 

the court found that the Commission’s 

definition was promulgated without 

adequate notice and opportunity for 

comment and remanded the regulation 

to the Commission. See id. at 106. 

The court also found that the 

exemption from the GOTV activity 

definition for communications made by 

associations or groups of State or local 

candidates or officeholders ran contrary 

to Congress’s clearly expressed intent. 

See id. at 104. However, the court found 

that BCRA provided no support for such 

an exemption, and it rejected all 

federalism concerns raised by the 

Commission in defense of the 

exemption, holding that ‘‘Congress was 

sensitive to federalism concerns in 

drafting BCRA’’ and that the Supreme 

Court in McConnell had rejected the 

general federalism challenge brought 

against BCRA’s Federal election activity 

provisions. Id. 

2. 2005 Rulemaking 

The Commission commenced a 

rulemaking in 2005 to address the 

court’s concerns, rather than appeal 

these aspects of Shays I District. 

Following another notice and period for 

comment, the Commission promulgated 

definitions of ‘‘voter registration 

activity’’ and ‘‘GOTV activity’’ that were 

substantially similar to those 

promulgated in 2002. The final rules 

were accompanied by an E&J that sought 

to address many of the Shays I District 

court’s concerns. See Final Rules on 

Definition of Federal Election Activity, 

71 FR 8926, 8928 (Feb. 22, 2006) (‘‘2006 

Final Rule’’). 

The Commission’s decision to leave 

unchanged the core aspects of the 

definitions of ‘‘voter registration 

activity’’ and ‘‘GOTV activity’’ was 

based on its continued concern that 

definitions which captured ‘‘mere 

encouragement[s]’’ would be ‘‘overly 

broad,’’ were unnecessary ‘‘to effectively 

implement BCRA,’’ and ‘‘could have an 

adverse impact on grassroots political 

activity.’’ 5 Accordingly, the 2006 

definitions were designed to encompass 

activities that actually registered 

persons to vote and resulted in voters 

going to the polls. Id. at 8928–29. Thus, 

the Commission sought to ‘‘regulate the 

funds used to influence Federal 

elections’’ and not ‘‘incidental speech.’’ 

Id. 

The Commission noted in its 2006 E&J 

that its regulations would not lead to the 

circumvention of the Act precisely 

because they captured ‘‘the use of nonFederal funds for disbursements that 

State, district, and local parties make for 

those activities that actually register 

individuals to vote.’’ Id. Moreover, 

‘‘many programs for widespread 

encouragement of voter registration to 

influence Federal elections would be 

captured as public communications 

under Type III [Federal election 

activity].’’ Id. The 2006 E&J also 

provided a nonexclusive list of 

examples of activity that would—and 

would not—constitute voter registration 

activity. Id. 

C. Shays III 

The revised definitions of voter 

registration activity and GOTV activity 

were challenged again in Shays v. FEC, 

508 F. Supp. 2d. 10, 63–70 (D.D.C. 2007) 

(‘‘Shays III District’’). Analyzing the 

definitions of ‘‘voter registration 

activity’’ and ‘‘GOTV activity,’’ the 

district court noted that the 

Commission’s 2006 E&J addressed only 

the most obvious instances of what 

was—and was not—covered activity but 

not the ‘‘vast gray area’’ of activities that 

State and local parties may conduct and 

that may benefit Federal candidates. 

Shays III District, 508 F. Supp. 2d at 65, 

69–70. 

Regarding GOTV activities, in 

particular, the district court focused on 

Advisory Opinion 2006–19, issued to 

the Los Angeles County Democratic 

Party Central Committee, in which the 

Commission concluded that a local 

party committee’s mass mailing and prerecorded, electronically dialed 

telephone calls (‘‘robocalls’’) to the 

party’s registered voters would not 

constitute get-out-the-vote activity. 6

The district court stated that Advisory 

Opinion 2006–19 had announced a 

much narrower interpretation of the 

scope of GOTV activity than ‘‘might 

otherwise [have been] presumed on the 

face of the definition.’’ Id. at 69. 

The district court held that the 

Commission’s failure to address these 

vast gray areas, and to explain whether 

activities falling within them would 

affect Federal elections, unduly 

compromised BCRA’s purposes. Id. at 

65–66, 69–70. Accordingly, the court 

remanded the definitions to the 

Commission. Id. at 70–71. 

The court of appeals upheld the lower 

court’s decision invalidating the 

Commission’s definitions of ‘‘voter 

registration activity’’ and ‘‘GOTV 

activity,’’ although on slightly different 

grounds. See Shays III Appeal, 528 F.3d 

at 931. The court of appeals recognized 

that the Commission had discretion to 

promulgate definitions that left 

unaddressed large gray areas of activity 

and to fill them in later through 

enforcement actions and the advisory 

opinion process. See id. 

Nevertheless, the court of appeals 

held that the Commission’s definitions 

of ‘‘voter registration activity’’ and 

‘‘GOTV activity’’ were deficient because 

they served to ‘‘create ‘two distinct 

loopholes.’ ’’ Id. The flaws in both 

definitions were: (1) the ‘‘assist’’ 

requirements, which excluded efforts 

that ‘‘actively encourage people to vote 

or register to vote;’’ and (2) the 

‘‘individualized means’’ requirements, 

which excluded ‘‘mass communications 

targeted to many people,’’ and had the 

effect of ‘‘dramatically narrowing which 

activities [were] covered’’ by the rules. 

Id. Accordingly, the court of appeals 

concluded that the definitions would 

‘‘allow the use of soft money for many 

efforts that influence federal elections,’’ 

which is directly counter to BCRA’s 

purpose. Id. 

The court rejected the Commission’s 

justifications for the definitions—to 

exclude mere exhortations from 

coverage and to give clear guidance as 

to the scope of the rules—because the 

Commission could craft definitions that 

exclude ‘‘routine or speech-ending 

exhortations’’ and that provided clear 

guidance to State, district, and local 

party committees in a way that is more 

consistent with BCRA. Id. at 932. 

Accordingly, the court of appeals 

remanded the regulations to the 

Commission. 


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II. Proposed Revisions to 11 CFR 

100.24(a)(2) and 100.24(a)(3) 

To comply with the court’s decision 

in Shays III Appeal, the Commission 

proposes revising the definitions of 

voter registration activity and GOTV 

activity at 11 CFR 100.24(a)(2)–(3). The 

Commission seeks comment on the 

proposal and is particularly interested 

in whether the proposed definitions 

would satisfy the court’s decision in 

Shays III Appeal. The Commission has 

not made any final determinations 

regarding which aspects of the following 

proposal it will adopt in the final rule. 

A. General Definitions 

To comply with the Shays III Appeal 

decision, the Commission proposes 

revising the definitions of voter 

registration activity and GOTV activity 

at 11 CFR 100.24(a)(2) and (a)(3). 

Specifically, the Commission’s proposal 

would define voter registration activity 

as ‘‘encouraging or assisting potential 

voters in registering to vote’’ and would 

define GOTV activity as ‘‘encouraging or 

assisting potential voters to vote.’’ The 

Commission has not made a final 

determination to adopt these general 

definitions and seeks comment on them. 

These proposals are intended to close 

the ‘‘two distinct loopholes’’ in the 

current definitions that were identified 

by the Shays III Appeal court as 

allowing the use of non-Federal funds in 

connection with Federal elections. See 

Shays III Appeal, 528 F.3d at 931–32. 

The proposed definitions would 

eliminate the requirement that voter 

registration activity and GOTV activity 

must actually assist persons in 

registering to vote or in the act of voting. 

Instead, the proposed definitions cover 

both activities that encourage voting or 

voter registration, as well as activities 

that actually assist potential voters in 

voting or registering to vote. 

Similarly, the proposed definitions 

would eliminate the requirement that 

voter registration activity and GOTV 

activity be conducted by 

‘‘individualized means.’’ The proposed 

definitions cover both activities targeted 

towards individual persons and 

activities directed at groups of 

persons—for example, mass mailings, 

all electronically dialed telephone calls 

(or, as they are commonly known, 

‘‘robocalls’’), or radio advertisements— 

so long as they encourage or assist 

voting or voter registration. 

The Commission seeks comment on 

whether the proposed definitions 

adequately address the concerns 

articulated by the court in the Shays III 

Appeal decision. Do they provide 

sufficient guidance as to which 

activities are covered and which are 

not? Do the proposed definitions, in 

fact, close the ‘‘two distinct loopholes’’ 

identified by the Shays III Appeal court? 

Alternatively, do the proposed 

definitions cover activity that Congress 

did not intend to regulate in BCRA? If 

so, what specific activities would be 

covered by the proposed rules that 

would not have any effect on Federal 

elections? 

More specifically, the proposed 

definition of ‘‘voter registration activity’’ 

is intended to cover, inter alia, the 

following activities: (1) Providing an 

individual with a flier that reads 

‘‘Register to Vote’’ and that includes the 

URL and address of the appropriate 

State or local office handling voter 

registration; (2) providing an individual 

with a voter registration form and 

verbally encouraging the recipient to fill 

out the form and submit it to the 

appropriate State or local office 

handling voter registration; or (3) 

mailing voter registration forms to 

individuals and encouraging them, in a 

cover letter, to fill out and submit the 

forms in advance of the registration 

deadline. Should the definition cover 

such activities? What, if any, additional 

activities should it cover? 

Similarly, the proposed definition of 

‘‘GOTV activity’’ is intended to cover, 

inter alia, these activities: (1) Driving a 

sound truck through a neighborhood 

that plays a message urging listeners to 

‘‘Vote next Tuesday at the Main Street 

community center’’; (2) mailing a flier to 

registered voters with the date of the 

election but not the location of polling 

places or their hours of operation; and 

(3) making telephone calls (including 

robocalls) reminding the recipient of the 

times during which the polls are open 

on election day. Should the proposed 

definition of GOTV activity cover such 

activities? What, if any, additional 

activities should it cover? 

What, if any, enforcement difficulties 

might the proposed definitions present? 

B. Examples 

Each proposed definition includes a 

non-exhaustive list of examples. Several 

activities that would either encourage or 

assist voter registration are provided at 

proposed paragraphs (a)(2)(i)(A–E). 

Some of the examples involve actual 

assistance (‘‘assisting individuals in 

completing or filing [voter registration] 

forms’’ and ‘‘submitting on behalf of a 

potential voter a completed voter 

registration form’’), while others involve 

encouragement of persons to register to 

vote (‘‘urging individuals to register to 

vote * * * by any * * * means’’). 

Similarly, several activities that 

would either encourage or assist persons 

in voting are provided at proposed 

paragraph (a)(3)(i)(A)–(B). Some 

examples from the existing rule would 

be retained (such as ‘‘offering to 

transport, or actually transporting, 

voters to the polls’’) and new examples 

would be added to illustrate the new 

‘‘encourage’’ component of the proposed 

definition. Informing voters of the date 

of an election or the times or locations 

of polling locations, for example, would 

constitute GOTV activity under the 

proposed definition. 

The Commission has not settled on 

the proposed examples of voter 

registration activity and GOTV activity 

and seeks comments on them. By 

providing these examples, does the 

proposal make clear that the definitions 

of voter registration activity and GOTV 

activity would not require actual 

assistance? Would the examples help 

State, district, and local party 

committees distinguish activities that 

are covered under the proposed 

definitions from activities that are not 

covered? Do the examples clarify any 

potential ambiguities in the general 

definition? Are there other examples 

that should be added? Should any of the 

proposed examples be revised or 

deleted? Finally, is it clear that the lists 

of examples provided in the proposal 

are not exhaustive and that each 

example would, by itself, constitute 

voter registration activity or GOTV 

activity? 

C. Exemption for ‘‘Mere Exhortations’’ 

Although the Shays III Appeal court 

required the Commission to promulgate 

definitions of voter registration activity 

and GOTV activity that included 

encouragements to vote and to register 

to vote, the court of appeals 

acknowledged that it would be 

permissible to exclude from the 

definitions ‘‘routine or spontaneous 

speech-ending exhortations’’ and ‘‘mere 

exhortations * * * made at the end of 

a political event or speech.’’ Shays III 

Appeal, 528 F.3d at 932. Accordingly, 

proposed 11 CFR 100.24(a)(2)(ii) and 

(a)(3)(ii) recognize that ‘‘speeches’’ or 

‘‘events’’ that include exhortations to 

vote or to register to vote that are 

incidental to the speech or event are 

exempt from the regulatory definitions 

of GOTV activity and voter registration 

activity. The proposals provide 

examples of the types of incidental 

exhortations that would qualify under 

the exemption. 

The exemption would be limited to 

exhortations made during a speech or at 

an event, such as a rally. It would not 

apply to exhortations made by any other 

means or in any other forum, such as 

robocalls, mailers, or television and 


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7A similar communication that urged a vote for 

a Federal candidate would be Type III Federal 

election activity, see 11 CFR 100.24(b)(3), and 

would be subject to BCRA’s funding restrictions for 

that reason, regardless of whether the activity was 

also deemed to be GOTV activity. 

radio advertisements. Further, the 

proposed exemption would apply only 

if an exhortation to vote or to register to 

vote is incidental to the speech or event. 

The Commission has not made a final 

determination to adopt this exemption 

and seeks comment on it. Does it 

provide clear guidance as to the 

activities exempted from the definitions 

of voter registration activity and GOTV 

activity? Do the examples make clear 

what types of statements qualify as 

‘‘mere exhortations’’? 

Has the Commission properly 

established the scope of the proposed 

exemption? Is it appropriate to limit the 

exemption to cover only those 

exhortations that are incidental to a 

speech or event? Does this requirement 

capture the type of ‘‘speech-ending’’ 

exhortations discussed by the court in 

the Shays III Appeal decision? Does the 

requirement that an exhortation be 

incidental to a speech or event create a 

workable and enforceable standard? 

How should the Commission determine 

whether an exhortation is incidental to 

a speech or event? Should the 

Commission consider the frequency 

with which a ‘‘mere exhortation’’ is 

offered? Is there a material difference 

between stating ‘‘Vote next Tuesday’’ 

once and stating it multiple times over 

the course of a speech or event? 

Are there other factors that the 

Commission should consider in 

determining whether the exemption 

applies? For example, should the 

spontaneity of an exhortation play a role 

in making this determination, and how 

would the Commission determine the 

spontaneity of an exhortation? Does it 

matter at what point in a speech an 

exhortation is offered? Is an exhortation 

offered at the end of a speech different 

from one offered at the beginning or 

middle of a speech? 

Further, is it proper to limit 

application of the exemption to 

incidental exhortations made at 

speeches and events, or should other 

communications be included as well? If 

so, what other types of activities and 

communications should be covered by 

the exemption? Should it cover direct 

mailings, robocalls, radio and television 

advertisements, and all other 

‘‘communications’’ that contain 

incidental exhortations to vote or to 

register to vote? Should the exemption 

cover, for example, robocalls made a 

few days before a Federal election that 

detail Mayor Smith’s record and exhorts 

listeners to ‘‘Vote for Mayor Smith on 

Election Day’’? 7 Would an exemption 

that included these types of 

communications be consistent with the 

court’s opinion in Shays III Appeal? 

Does the medium in which a 

statement is made affect whether it is a 

‘‘mere exhortation’’ at all? Are scripted 

communications incapable of 

containing incidental exhortations? In 

other words, are scripted exhortations to 

vote or to register to vote the types of 

communications which the Shays III 

Appeal court was referring to in its 

opinion? If the exemption is expanded 

to cover exhortations made in other 

media, how could the Commission 

determine if they were incidental? 

Would such a determination be made by 

examining the proportion of space or 

time devoted to the exhortation in 

relation to the rest of the 

communication? See, e.g., 11 CFR 106.1 

(requiring that payments for 

communications discussing multiple 

Federal or non-Federal candidates be 

attributed to each candidate based on 

the time or space devoted to each one). 

Would the Commission have to 

establish threshold percentages that 

defined whether an exhortation was, in 

fact, incidental to a communication? 

How would the proposed general 

definitions of ‘‘voter registration 

activity’’ and ‘‘GOTV activity’’ be 

affected by altering the scope of the 

exemption? Would the examples in 

proposed paragraphs (a)(2)(i)(A)–(E) and 

(a)(3)(i)(A)–(B) need to be revised if the 

Commission adopted a broader 

exemption? Would allowing a broader 

exemption potentially allow 

communications that affect Federal 

elections to be funded with non-Federal 

funds, contrary to BCRA’s purpose? 

This exemption is not intended to 

inoculate speeches or events that 

otherwise would meet the proposed 

definitions of ‘‘voter registration 

activity’’ or ‘‘GOTV activity.’’ For 

example, a speech given 60 days before 

an election that provides listeners with 

information on how to register to vote 

would constitute Federal election 

activity even if it also contains an 

exhortation to register to vote (such as 

‘‘Register and make your voice heard!’’). 

Should the Commission make this 

limitation explicit in the rule itself? 

Without an explicit limitation, could the 

general exemption be interpreted as 

applying to voter registration activity or 

GOTV activity for reasons other than 

their inclusion of an exhortation? 

Would adding an explicit limitation be 

helpful or would it be redundant and 

therefore unnecessary? 

D. Exclusion of Public Communications 

Relating to State and Local Elections 

Finally, proposed 11 CFR 

100.24(a)(3)(iii) excludes from the 

definition of ‘‘GOTV activity’’ a ‘‘public 

communication that refers solely to one 

or more clearly identified candidates for 

State or local office and notes the date 

of the election.’’ The proposal under 

consideration, if adopted, would ensure 

that the expansion of the GOTV activity 

definition, which is required by the 

Shays III Appeal court, does not, in 

effect, render meaningless the statutory 

definition of ‘‘Federal election activity,’’ 

which specifically does not include 

amounts disbursed or expended for ‘‘a 

public communication that refers solely 

to a clearly identified candidate for 

State or local office, if the 

communication is not a Federal election 

activity described in subparagraph (A)(i) 

or (ii).’’ 2 U.S.C. 431(20)(B)(i); 11 CFR 

100.24(c)(1). 

The Commission has not made a final 

determination to adopt the proposed 

exclusion and seeks comment on it. 

Does the proposed exclusion correctly 

implement the statutory definition? Is 

the proposed exclusion necessary to 

ensure that the expansion of the 

definition of ‘‘GOTV activity’’ does not 

render meaningless the exclusion for 

communications that refer solely to nonFederal candidates? Is it necessary to 

ensure that the Commission does not 

federalize purely State and local 

campaign activity? 

Conversely, would the proposed 

provision exclude from regulation the 

types of activities from which ‘‘federal 

candidates reap substantial rewards’’? 

See McConnell, 124 S. Ct. at 168. 

Similarly, is the proposed exclusion 

materially different from the exception 

for associations of State and local 

candidates that was included in the 

Commission’s first definition of GOTV 

activities and that was invalidated by 

the district court in the Shays I District 

decision? See Shays I District, 337 F. 

Supp. 2d at 102–03; see also discussion 

above in part I.B–C. 

E. Other Issues 

In Shays III Appeal, the court of 

appeals cited Advisory Opinion 2006– 

19 (Los Angeles County Democratic 

Party Central), in which the 

Commission concluded that letters and 

pre-recorded telephone calls 

encouraging certain Democrats to vote 

in an upcoming local election did not 

count as GOTV activity, in part, because 

the communications did not provide 

individualized assistance to voters. See 

Shays III Appeal, 528 F.3d at 932. The 

court held that this overly restrictive 


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definition of GOTV activity was 

contrary to the statute. See id. The court 

did not address, however, whether 

communications made solely in 

connection with a non-Federal election 

may be excluded from the definition of 

GOTV activity or Federal election 

activity. 

In light of the Shays III Appeal 

decision and the definitions proposed 

above, must the Commission explicitly 

supersede, in whole or in part, Advisory 

Opinion 2006–19? If so, should the 

Commission, either in its E&J or in the 

regulation explicitly address the 

circumstances involved with that 

advisory opinion? For example, should 

the E&J or final regulation acknowledge 

explicitly that communications made 

four or more days before an election are 

‘‘GOTV activity’’ if they encourage or 

assist individuals in voting, provided 

that neither of the proposed exclusions 

at 11 CFR 100.24(a)(3)(iii) (State and 

local elections) or 11 CFR 100.24(c)(5) 

(voter identification or GOTV activity 

solely in connection with a non-Federal 

election; see above)—if adopted—is 

met? What other aspects of that advisory 

opinion should be addressed in a 

similarly explicit manner? 

III. Voter Identification and GOTV 

Activity in Connection With a NonFederal Election 

A. Background 

BCRA limits regulation of Type II FEA 

to activities that are conducted ‘‘in 

connection with an election in which a 

candidate for Federal office appears on 

the ballot.’’ See 2 U.S.C. 441i(b)(1); 

431(20)(A)(ii). In 2002, the Commission 

defined ‘‘in connection with an election 

in which a candidate for Federal office 

appears on the ballot’’ generally to mean 

the period of time beginning on the 

earliest filing deadline for access to the 

primary election ballot for Federal 

candidates in each particular State, and 

ending on the date of the general 

election, up to and including any runoff 

date. See 11 CFR 100.24(a)(1)(i). For 

States not holding a primary election, 

the covered period began on January 1 

of each even-numbered year. Id. For 

special elections in which Federal 

candidates were on the ballot, the 

period was deemed to begin when the 

date of the special election was set and 

to end on the date of the special 

election. See 11 CFR 100.24(a)(1)(ii). 

This definition did not, however, 

account for municipalities, counties, 

and States that conducted separate, nonFederal elections within the ‘‘in 

connection with an election’’ time 

windows. As such, Type II Federal 

election activities conducted in 

connection with these non-Federal 

elections were subject to BCRA’s 

restrictions. Therefore, in 2006, the 

Commission adopted an Interim Final 

Rule that revised the definition of ‘‘in 

connection with an election in which a 

candidate for Federal office appears on 

the ballot’’ to exclude purely nonFederal voter identification and GOTV 

activity. See Interim Final Rule on 

Definition of Federal Election Activity, 

71 FR 14357 (Mar. 22, 2006) (‘‘Interim 

Final Rule’’). 

The Interim Final Rule added new 

paragraph (a)(1)(iii) to 11 CFR 100.24 to 

exclude voter identification or GOTV 

activities that were ‘‘in connection with 

a non-Federal election that is held on a 

date separate from a date of any Federal 

election’’ and that refers exclusively to: 

(1) Non-Federal candidates participating 

in the non-Federal election, provided 

the non-Federal candidates are not also 

Federal candidates; (2) ballot referenda 

or initiatives scheduled for the date of 

the non-Federal election; or (3) the date, 

polling hours and locations of the nonFederal election. See 11 CFR 

100.24(a)(1)(iii)(A)(1)–(3); Interim Final 

Rule, 71 FR at 14359–60. By its own 

terms, the provision expired on 

September 1, 2007. See 11 CFR 

100.24(a)(1)(iii)(B); Interim Final Rule at 

14358. 

B. Proposal 

The Commission is considering 

adding 11 CFR 100.24(c)(5), which 

would exclude from the definition of 

‘‘Federal election activity’’ any voter 

identification activities or GOTV 

activities that are ‘‘solely in connection 

with a non-Federal election held on a 

date separate from any Federal 

election.’’ For example, a GOTV 

program offering to transport voters to 

the polls on the day of an exclusively 

non-Federal election would be eligible 

for the proposed exclusion. However, a 

voter identification program collecting 

information about voters’ preferences in 

both a non-Federal election in March 

and a Federal primary in April would 

not qualify, since such a program would 

not be ‘‘solely in connection with a nonFederal election.’’ This proposal largely 

tracks the Interim Final Rule, although, 

as proposed here, it would be located in 

a different paragraph within 11 CFR 

100.24. 

The proposed rule under 

consideration is based on the premise 

that voter identification and GOTV 

activity for non-Federal elections held 

on a different date from any Federal 

election will have no effect on 

subsequent Federal elections. The 

Commission seeks comments, especially 

in the form of empirical data, on 

whether voter identification and GOTV 

efforts in connection with a non-Federal 

election have any meaningful effect on 

voter turnout in a subsequent Federal 

election, or otherwise confer benefits on 

Federal candidates. For example, if a 

GOTV communication provides the date 

of a non-Federal election and offers 

transportation to voters for such a nonFederal election, what effect, if any, 

would such activity have on a Federal 

election held on a separate date, that is 

weeks or months later? 

The proposed exclusion would be 

narrowly drawn and not apply to 

activities that are also in connection 

with a Federal election. To that end, the 

Commission seeks comment on whether 

the exclusion should take into account 

the proximity of the next Federal 

election. For example, should the rule 

distinguish between situations where 

the next Federal election is only six 

days later, as opposed to six months? 

How much time should pass between a 

Federal and State or local election to 

ensure activities associated with the 

State or local election have no affect on 

the Federal one? Should the time 

required to pass be different for voter 

identification activity than it is for 

GOTV activity? 

Additionally, many states currently 

allow voters to cast a ballot, either in 

person or by mail, prior to Election 

Day—a process known generally as 

‘‘early voting.’’ See U.S. Election 

Assistance Comm’n, A Voter’s Guide to 

Federal Elections 5 (2008), available at 

http://www.eac.gov/voter/voter/a-votersguide-to-federal-elections/ 

attachment_download/file. However, 

the exclusion in proposed section 

100.24(c)(5) distinguishes excluded 

local activity, in part, based on whether 

the dates of Federal and non-Federal 

elections coincide. The Commission 

seeks comment on whether early voting 

affects the relevance of the dates on 

which elections are held. Do the early 

voting periods for Federal elections 

overlap with the dates of State and local 

elections or State and local early voting 

periods? Can early voters cast ballots at 

the same time for both Federal and State 

or local elections when the actual date 

of those elections do not coincide? How 

does GOTV activity for early voting in 

non-Federal elections affect turnout and 

voting patterns for early voting in 

Federal elections? The Commission 

particularly welcomes comments in the 

form of empirical data. 

The proposed exclusion further 

requires that voter identification or 

GOTV activity refer exclusively to nonFederal candidates participating in the 

non-Federal election (provided that the 

non-Federal candidates are not also 


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8See Notice of Proposed Rulemaking on Federal 

Election Activity and Non-Federal Elections, 72 FR 

31473 (June 7, 2007). 

Federal candidates); ballot referenda or 

initiatives scheduled for the date of the 

non-Federal election; or the date, 

polling hours, and locations of the nonFederal election. These limitations are 

intended to ensure that the only activity 

excluded from the definition of ‘‘Federal 

election activity’’ is solely in connection 

with a non-Federal election. 

To effectuate this intention better, the 

Commission invites comments on any 

changes that it should make to proposed 

11 CFR 100.24(c)(5). Do the proposal’s 

limitations ensure that the exclusion 

covers only non-Federal activity? The 

Commission seeks comment on whether 

proposed 11 CFR 100.24(c)(5) excludes 

‘‘purely non-Federal’’ activities. Is the 

proposed exclusion consistent with 

congressional intent? 

Finally, the current proposal is 

different from previous Commission 

approaches to this issue. In the Interim 

Final Rule, and subsequently in a Notice 

of Proposed Rulemaking,8 the 

Commission had proposed excluding 

non-Federal voter identification and 

GOTV activity from regulation by 

amending the definition of ‘‘in 

connection with an election in which a 

candidate for Federal office appears on 

the ballot.’’ The current proposal would 

instead address non-Federal elections 

by adding a new exclusion to the 

definition of ‘‘Federal election activity’’ 

at 11 CFR 100.24(c)(5). Would this 

approach have a different effect from the 

approach in the Interim Final Rule and 

the NPRM, and if so, should the 

Commission adopt the prior approach or 

the proposed approach? Does the 

Commission have the authority to add 

this provision, even though it is not 

expressly provided for in the statutory 

text? Alternatively, does the statute’s 

definition of Federal election activity at 

2 U.S.C. 431(20)(A), which does not 

include the type of activities described 

under proposed 11 CFR 100.24(c)(5), 

permit this provision? 

Certification of No Effect Pursuant to 5 

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

Act) 

The Commission certifies that the 

attached proposed rule, if promulgated, 

would not have a significant economic 

impact on a substantial number of small 

entities. The basis for this certification 

is that this proposed rule would affect 

State, district, and local party 

committees, which are not ‘‘small 

entities’’ as defined in 5 U.S.C. 601. The 

term ‘‘small entities’’ includes not-forprofit enterprises that are ‘‘small 

organizations’’ under 5 U.S.C. 601(4) 

and 601(6). State, district, and local 

party committees are not-for-profit 

enterprises, but they are not ‘‘small 

organizations’’ under 5 U.S.C. 601(4) 

because they are not independently 

owned and operated and are not 

dominant in their field. 5 U.S.C. 601(4). 

State political party committees are not 

independently owned and operated 

because they are not financed and 

controlled by a small identifiable group 

of individuals, and they are affiliated 

with the larger national political party 

organizations. In addition, the State 

political party committees representing 

the Democratic and Republican parties 

have a major controlling influence 

within the political arena of their States 

and are thus dominant in their field. 

District and local party committees are 

generally considered affiliated with the 

State committees and need not be 

considered separately. To the extent that 

any State party committees representing 

minor political parties might be 

considered ‘‘small organizations,’’ the 

number affected by this proposed rule is 

not substantial. 

List of Subjects in 11 CFR Part 100 

Elections. 

For the reasons set out in the 

preamble, subchapter A of chapter 1 of 

title 11 of the Code of Federal 

Regulations is proposed to be amended 

as follows: 

PART 100—SCOPE AND DEFINITIONS 

(2 U.S.C. 431) 

1. The authority citation for 11 CFR 

part 100 continues to read as follows: 

Authority: 2 U.S.C. 431, 434, and 

438(a)(8). 

2. Section 100.24 is amended by 

removing paragraph (a)(1)(iii), by 

revising paragraphs (a)(2) and (a)(3), and 

by adding paragraph (c)(5) to read as 

follows: 

§ 100.24 Federal election activity (2 U.S.C. 

431(20)). 

(a) * * * 

(2) Voter registration activity means 

encouraging or assisting potential voters 

in registering to vote. 

(i) Except as provided in paragraph 

(a)(2)(ii) of this section, voter 

registration activity includes, but is not 

limited to, any of the following: 

(A) Urging, whether by mail 

(including direct mail), in person, by 

telephone (including robocalls), or by 

any other means, potential voters to 

register to vote; 

(B) Preparing and distributing 

information about registration and 

voting; 

(C) Distributing voter registration 

forms or instructions to potential voters; 

(D) Answering questions about how to 

complete or file a voter registration 

form, or assisting potential voters in 

completing or filing such forms; or 

(E) Submitting a completed voter 

registration form on behalf of a potential 

voter. 

(ii) A speech or event is not voter 

registration activity solely because it 

includes an exhortation to register to 

vote that is incidental to the speech or 

event, such as: 

(A) ‘‘Register and make your voice 

heard’’; 

(B) ‘‘Don’t forget to register to vote’’; 

(C) ‘‘Register by September 5th’’; or 

(D) ‘‘Don’t forget to register to vote by 

next Wednesday.’’ 

(3) Get-out-the-vote activity means 

encouraging or assisting potential voters 

to vote. 

(i) Except as provided in paragraph 

(a)(3)(ii) of this section, get-out-the-vote 

activity includes, but is not limited to, 

any of the following: 

(A) Informing potential voters, 

whether by mail (including direct mail), 

in person, by telephone (including 

robocalls), or by any other means, about: 

(1) The date of an election; 

(2) Times when polling places are 

open; 

(3) The location of particular polling 

places; 

(4) Early voting or voting by absentee 

ballot; or 

(B) Offering to transport, or actually 

transporting, potential voters to the 

polls. 

(ii) A speech or event is not get-outthe-vote activity solely because it 

includes an exhortation to vote that is 

incidental to the speech or event, such 

as: 

(A) ‘‘Your vote is very important’’; 

(B) ‘‘Don’t forget to vote’’; 

(C) ‘‘Don’t forget to vote on November 

4th’’; or 

(D) ‘‘Your vote is very important next 

Tuesday.’’ 

(iii) Get-out-the-vote activity does not 

include a public communication that 

refers solely to one or more clearly 

identified candidates for State or local 

office, but does not refer to a clearly 

identified Federal candidate, and notes 

the date of the election, such as: 

(A) A broadcast advertisement stating 

‘‘Vote Smith for mayor on November 

4th’’; or 

(B) A mailer sent to at least 500 

persons stating ‘‘Get out and show your 

support for State Delegate Jones next 

Tuesday.’’ 

* * * * * 

(c) * * * 


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(5) Voter identification or get-out-thevote activity that is solely in connection 

with a non-Federal election that is held 

on a date on which no Federal election 

is held and that refers exclusively to: 

(i) Non-Federal candidates 

participating in the non-Federal 

election, provided the non-Federal 

candidates are not also Federal 

candidates; 

(ii) Ballot referenda or initiatives 

scheduled for the date of the nonFederal election; or 

(iii) The date, polling hours and 

locations of the non-Federal election. 

Dated: October 14, 2009. 

On behalf of the Commission. 

Steven T. Walther, 

Chairman, Federal Election Commission. 

[FR Doc. E9–25107 Filed 10–19–09; 8:45 am] 

BILLING CODE 6715–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 71 

[Docket No. FAA–2009–0543; Airspace 

Docket No. 09–ACE–9] 

Proposed Amendment of Class D 

Airspace; St Louis, MO 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: This action proposes to 

amend Class D airspace at St Louis, MO. 

Additional controlled airspace is 

necessary to accommodate new 

Standard Instrument Approach 

Procedures (SIAPs) at Spirit of St Louis 

Airport, St Louis, MO. The FAA is 

taking this action to enhance the safety 

and management of Instrument Flight 

Rules (IFR) operations for SIAPs at 

Spirit of St Louis Airport. 

DATES: 0901 UTC. Comments must be 

received on or before December 4, 2009. 

ADDRESSES: Send comments on this 

proposal to the U.S. Department of 

Transportation, Docket Operations, 1200 

New Jersey Avenue, SE., West Building 

Ground Floor, Room W12–140, 

Washington, DC 20590–0001. You must 

identify the docket number FAA–2009– 

0543/Airspace Docket No. 09–ACE–9, at 

the beginning of your comments. You 

may also submit comments through the 

Internet at http://www.regulations.gov. 

You may review the public docket 

containing the proposal, any comments 

received, and any final disposition in 

person in the Dockets Office between 9 

a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. The 

Docket Office (telephone 1–800–647– 

5527), is on the ground floor of the 

building at the above address. 

FOR FURTHER INFORMATION CONTACT: 

Scott Enander, Central Service Center, 

Operations Support Group, Federal 

Aviation Administration, Southwest 

Region, 2601 Meacham Blvd., Fort 

Worth, TX 76137; telephone: (817) 321– 

7716. 

SUPPLEMENTARY INFORMATION: 

Comments Invited 

Interested parties are invited to 

participate in this proposed rulemaking 

by submitting such written data, views, 

or arguments, as they may desire. 

Comments that provide the factual basis 

supporting the views and suggestions 

presented are particularly helpful in 

developing reasoned regulatory 

decisions on the proposal. Comments 

are specifically invited on the overall 

regulatory, aeronautical, economic, 

environmental, and energy-related 

aspects of the proposal. 

Communications should identify both 

docket numbers and be submitted in 

triplicate to the address listed above. 

Commenters wishing the FAA to 

acknowledge receipt of their comments 

on this notice must submit with those 

comments a self-addressed, stamped 

postcard on which the following 

statement is made: ‘‘Comments to 

Docket No. FAA–2009–0543/Airspace 

Docket No. 09–ACE–9.’’ The postcard 

will be date/time stamped and returned 

to the commenter. 

Availability of NPRMs 

An electronic copy of this document 

may be downloaded through the 

Internet at http://www.regulations.gov. 

Recently published rulemaking 

documents can also be accessed through 

the FAA’s Web page at http:// 

www.faa.gov/airports_airtraffic/ 

air_traffic/publications/ 

airspace_amendments/. 

Additionally, any person may obtain 

a copy of this notice by submitting a 

request to the Federal Aviation 

Administration (FAA), Office of Air 

Traffic Airspace Management, ATA– 

400, 800 Independence Avenue, SW., 

Washington, DC 20591, or by calling 

(202) 267–8783. Communications must 

identify both docket numbers for this 

notice. Persons interested in being 

placed on a mailing list for future 

NPRM’s should contact the FAA’s 

Office of Rulemaking (202) 267–9677, to 

request a copy of Advisory Circular No. 

11–2A, Notice of Proposed Rulemaking 

Distribution System, which describes 

the application procedure. 

The Proposal 

This action proposes to amend Title 

14, Code of Federal Regulations (14 

CFR), part 71 by adding additional Class 

D airspace extending upward from the 

surface to and including 3000 feet MSL 

for SIAPs operations at Spirit of St Louis 

Airport, St Louis, MO. Controlled 

airspace is needed for the safety and 

management of IFR operations at the 

airport. 

Class D airspace areas are published 

in Paragraph 5000 of FAA Order 

7400.9T, signed August 27, 2009, and 

effective September 15, 2009, which is 

incorporated by reference in 14 CFR 

71.1. The Class D airspace designation 

listed in this document would be 

published subsequently in the Order. 

The FAA has determined that this 

proposed regulation only involves an 

established body of technical 

regulations for which frequent and 

routine amendments are necessary to 

keep them operationally current. It, 

therefore, (1) is not a ‘‘significant 

regulatory action’’ under Executive 

Order 12866; (2) is not a ‘‘significant 

rule’’ under DOT Regulatory Policies 

and Procedures (44 FR 11034; February 

26, 1979); and (3) does not warrant 

preparation of a Regulatory Evaluation 

as the anticipated impact is so minimal. 

Since this is a routine matter that will 

only affect air traffic procedures and air 

navigation, it is certified that this rule, 

when promulgated, will not have a 

significant economic impact on a 

substantial number of small entities 

under the criteria of the Regulatory 

Flexibility Act. 

The FAA’s authority to issue rules 

regarding aviation safety is found in 

Title 49 of the U.S. Code. Subtitle 1, 

Section 106 describes the authority of 

the FAA Administrator. Subtitle VII, 

Aviation Programs, describes in more 

detail the scope of the agency’s 

authority. This rulemaking is 

promulgated under the authority 

described in Subtitle VII, Part A, 

Subpart I, Section 40103. Under that 

section, the FAA is charged with 

prescribing regulations to assign the use 

of airspace necessary to ensure the 

safety of aircraft and the efficient use of 

airspace. This regulation is within the 

scope of that authority as it would add 

additional controlled airspace at Spirit 

of St Louis Airport, St Louis, MO. 

List of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (Air). 

The Proposed Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 


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