29358 Federal Register / Vol. 63, No. 103 / Friday, May 29, 1998 / Proposed Rules

Copies of the transcript of the public

workshop, public comments received,

and this notice may be read at the DOE

Freedom of Information Reading Room,

U.S. DOE, Forrestal Building, Room 1E–

190, 1000 Independence Avenue, SW,

Washington, DC 20585, (202) 586–3142,

between the hours of 9 a.m. and 4 p.m.,

Monday through Friday, except Federal

holidays.

FOR FURTHER INFORMATION CONTACT:

Edward Pollock , U.S. Department of

Energy, Office of Energy Efficiency and

Renewable Energy, Forrestal Building,

Mail Station EE–43, 1000 Independence

Avenue, SW, Washington, DC 20585–

0121, (202) 586–5778.

Ms. Brenda Edwards-Jones, U.S.

Department of Energy, Office of

Energy Efficiency and Renewable

Energy, U.S. Department of Energy,

Mail Station EE–43, 1000

Independence Avenue, SW,

Washington, DC 20585–0121, (202)

586–2945.

Eugene Margolis, Esq., U.S. Department

of Energy, Office of General Counsel,

Mail Station GC–72, Forrestal

Building, 1000 Independence Avenue,

SW, Washington, DC 20585–0103,

(202) 586–9526.

SUPPLEMENTARY INFORMATION: In

continuing the work on possible

revisions to energy efficiency standards

on central air conditioners, the

Department is convening a workshop to

present and receive public comments on

the proposed analytical approach for

evaluating the central air conditioner

standards. At this workshop the

following will be discussed:

Review of the Rulemaking

Framework: The Department will seek

comment on the draft analytical

framework for the central air

conditioner rulemaking. Copies of the

draft framework document will be

available beginning the week of May 25,

1998, on the Office of Codes and

Standards web site. The web site

address is as follows: http://

www.eren.doe.gov/buildings/codesl

standards/index.htm.

Identification of Analytical Methods

and Tools: The Department seeks input

into the selection of engineering and

economic analytical tools to be used

during the rulemaking:

Engineering Analysis/Data Collection:

The Department plans to collect data for

the engineering analysis using one or

more of the following methods: the

energy efficiency approach to derive a

cost efficiency curve within a range, the

design option approach, and the market

price (or reverse engineering) approach.

The Department will review the key

issues surrounding: (1) The pros and

cons of each approach, and (2) data

collection and the reporting of costs for

incorporation into the engineering

analysis.

Price of Air Conditioners: The

Department will lead a discussion on

possible approaches to generating retail

prices to be used in the consumer lifecycle-cost analysis.

Life-Cycle-Cost: The Department plans

to demonstrate a new life-cycle-cost

spreadsheet model which can account

for variability of key criteria, such as

utility rates and climate.

Electricity Price: The Department will

lead a discussion on possible

approaches for accounting for variations

in electricity price, and the effects of

these variations on different consumers.

Refrigerant: The refrigerant used in air

conditioners will be banned by the

Environmental Protection Agency in

2010. The Department will lead a

discussion on the effects of this ban on

the timing of the revision to central air

conditioner standards.

Energy Savings Forecasts: The

Department will present an example of

energy savings forecasting results using

a simple spreadsheet to show how the

growth in efficiency can be accounted

for over time.

Background on the approach to be

followed in evaluating central air

conditioner standards is found in

Section 325 of the Energy Policy and

Conservation Act, as amended, and

appendix A of subpart C of 10 CFR part

430, 61 FR 36974 (July 15, 1996).

Appendix A outlines the planning and

prioritization process, data collection

and analysis, and decision making

criteria. Previously published

information pertaining to this

rulemaking includes the following: An

Advance Notice of Proposed

Rulemaking Regarding Energy

Conservation Standards for Three Types

of Consumer Products, published on

September 8, 1993 (58 FR 47326), and

comments thereon. Copies may be read

at the DOE Freedom of Information

Reading Room.

Please notify Brenda Edwards-Jones

or Edward Pollock at the above listed

address if you intend to attend the

workshop, if you wish to receive

material prepared for the workshop

(including the draft analytical

framework), or if you wish to be added

to the DOE mailing list for receipt of

future notices and information

concerning central air conditioner

matters relating to energy efficiency.

Issued in Washington, DC, on May 22,

1998.

Dan W. Reicher,

Assistant Secretary, Energy Efficiency and

Renewable Energy.

[FR Doc. 98–14258 Filed 5–28–98; 8:45 am]

BILLING CODE 6450–01–P

FEDERAL ELECTION COMMISSION

[Notice 1998—10]

11 CFR Part 114

Qualified Nonprofit Corporations

AGENCY: Federal Election Commission.

ACTION: Notice of Disposition of Petition

for Rulemaking.

SUMMARY: The Commission announces

its disposition of a Petition for

Rulemaking filed on November 17, 1997

by James Bopp, Jr., on behalf of the

James Madison Center for Free Speech.

The petition urges the Commission to

revise its regulations regarding qualified

nonprofit corporations to conform them

to a decision of the United States Court

of Appeals for the Eighth Circuit. The

Commission has decided not to initiate

a rulemaking in response to this

petition.

DATES: May 21, 1998.

FOR FURTHER INFORMATION CONTACT: Ms.

Susan E. Propper, Assistant General

Counsel, or Paul Sanford, Staff

Attorney, 999 E Street, NW,

Washington, DC 20463, (202) 694–1650

or (800) 424–9530.

SUPPLEMENTARY INFORMATION: On

November 17, 1997, the Commission

received a Petition for Rulemaking from

the James Madison Center for Free

Speech requesting that the Commission

institute a rulemaking proceeding to

conform its regulations at 11 CFR 114.10

to the decision of the United States

Court of Appeals for the Eighth Circuit

in Minnesota Citizens Concerned for

Life v. Federal Election Commission,

113 F.3d 129 (8th Cir. 1997)

[‘‘Minnesota’’]. In that decision, the

court of appeals held that section 114.10

is unconstitutional because it infringes

upon the First Amendment rights of

certain nonprofit corporations. The

petition urges the Commission to revise

its regulations in accordance with this

decision. For the reasons set out below,

the Commission has decided not to

revise its regulations, and is therefore

denying the petition.

Section 441b of the Federal Election

Campaign Act, 2 U.S.C. 431 et seq.

[‘‘FECA’’ or ‘‘the Act’’], broadly

prohibits corporations from making

independent expenditures. However,
Federal Register / Vol. 63, No. 103 / Friday, May 29, 1998 / Proposed Rules 29359

the United States Supreme Court

created a narrow exception to this

prohibition in FEC v. Massachusetts

Citizens for Life, 479 U.S. 238 (1986)

[‘‘MCFL’’]. The Court held that the

prohibition on corporate independent

expenditures could not constitutionally

be applied to nonprofit organizations

like Massachusetts Citizens For Life

[‘‘Massachusetts Citizens’’] that have

certain ‘‘essential’’ features: (1) they are

formed for the express purpose of

promoting political ideas and cannot

engage in business activities; (2) they

have no shareholders or other persons

affiliated so as to have a claim on their

assets or earnings; and (3) they were not

established by a business corporation or

labor union and have a policy against

accepting contributions from these

entities. Id. at 263–64.

In 1995, after an extended rulemaking

proceeding, the Commission

promulgated new regulations to

implement the MCFL decision. Section

114.10 of the regulations describes those

corporations that are exempt from the

prohibition on independent

expenditures, and refers to them as

qualified nonprofit corporations. Under

section 114.10(c), a qualified nonprofit

corporation is a corporation (1) whose

only express purpose is the promotion

of political ideas; (2) that cannot engage

in business activities; (3) that (a) has no

shareholders or other persons (other

than employees and creditors) affiliated

in a way that could allow them to make

a claim on the corporation’s assets or

earnings; and (b) offers no benefits that

are a disincentive to disassociate with

the corporation on the basis of a

political issue; (4) that was not

established by a business corporation or

labor organization, and does not accept

donations from such entities; and (5)

that is described in 26 U.S.C. 501(c)(4)

of the Internal Revenue Code. These

rules went into effect on October 5,

1995. Express Advocacy; Independent

Expenditures; Corporate and Labor

Organization Expenditures; Final Rule,

60 FR 52069 (Oct. 5, 1995).

The petition submitted by the

Madison Center urges the Commission

to revise these regulations to conform to

the Minnesota decision. In Minnesota,

the plaintiffs, a nonprofit organization

called Minnesota Citizens Concerned for

Life [‘‘Minnesota Citizens’’], argued that

the Commission’s regulations violate the

First Amendment and the

Administrative Procedure Act, 5 U.S.C.

551 et seq. Minnesota Citizens relied on

a prior decision of the Eighth Circuit,

Day v. Holohan, 34 F.3d 1356 (8th Cir.

1994), cert. denied, 513 U.S. 1127 (1995)

[‘‘Day’’], in which the Eighth Circuit

considered the constitutionality of a

state statutory scheme that was similar

to section 114.10. In Day, the Eighth

Circuit concluded that the state statute

was unconstitutional for two reasons.

First, the court held that a nonprofit

organization could engage in

‘‘insignificant’’ business activity and

still be exempt from the prohibition on

corporate independent expenditures.

Second, the court concluded that a

nonprofit organization could accept an

insignificant amount of contributions

from corporations and still qualify for

an exemption from the independent

expenditure prohibition. See also

Federal Election Commission v. Survival

Education Fund, 65 F.3d 285 (2d Cir.

1995).

When faced with a challenge to

section 114.10 of the Commission’s

regulations, the district court in

Minnesota concluded that the Day

decision was controlling, and

invalidated the regulation. The Eighth

Circuit affirmed the district court’s

decision. 113 F.3d 129, 133 (8th Cir.

1997). The Madison Center now asks the

Commission to revise its regulations in

accordance with the Eighth Circuit’s

decisions.

Pursuant to its usual procedures, the

Commission published a Notice of

Availability in the December 10, 1997

edition of the Federal Register

announcing that it had received the

petition and inviting the public to

submit comments on it. 62 FR 65040

(Dec. 10, 1997). The comment period

closed on January 23, 1998. The

Commission received three comments

in response to the Notice of Availability.

One of the comments was endorsed by

nine organizations. All three comments

supported the petition.

After reviewing the petition,

comments, and court decisions, the

Commission has decided not to revise

its regulations. Under the rule of stare

decisis, a decision by a circuit court of

appeals is only binding within the

circuit in which it is issued. Section

114.10 reflects the Commission’s

interpretation of the MCFL opinion, a

Supreme Court decision that is binding

nationwide. Thus, if the Commission’s

interpretation of MCFL is correct,

section 114.10 is controlling law outside

the Eighth Circuit, and the Commission

is entitled to implement it throughout

the rest of the country.

Since government agencies typically

operate nationwide, it is not unusual for

an agency to find that different courts

have interpreted its statutes or rules in

different ways. The Supreme Court has

recognized that, when confronted with

this situation, an agency is free to

adhere to its preferred interpretation in

all circuits that have not rejected that

interpretation. It is collaterally estopped

only from raising the same claim against

the same party in any location, or from

continuing to pursue the issue against

any party in a circuit that has already

rejected the agency’s interpretation.

United States v. Mendoza, 464 U.S. 154

(1984). Indeed, the Mendoza Court

encouraged agencies to seek reviews in

other circuits if they disagree with one

circuit’s view of the law, since to allow

‘‘only one final adjudication would

deprive this Court of the benefit it

receives from permitting several courts

of appeals to explore a difficult question

before this Court grants certiorari.’’ Id. at

160 (citations omitted).

The Commission intends to follow the

MCFL decision for the additional reason

that it believes that the Eighth Circuit

erroneously interpreted that decision in

Day and Minnesota. In the Eighth

Circuit’s view, the MCFL decision

allows corporations to make

independent expenditures, even if they

engage in business activities and accept

donations from business corporations.

However, the MCFL Court said that

when a corporation engages in both

business activity and political activity,

it creates ‘‘the potential for unfair

deployment of wealth for political

purposes.’’ 479 U.S. at 259 (footnote

omitted). Similarly, the Court said that

groups that accept donations from

business corporations ‘‘serv[e] as

conduits for the type of direct spending

that creates a threat to the political

marketplace.’’ Id. at 264. This threat of

corruption of the political marketplace

justifies the application of the

independent expenditure prohibition in

section 441b.

In contrast, groups like Massachusetts

Citizens that ‘‘cannot engage in business

activities’’ and ‘‘[were] not established

by a business corporation or labor

union, and [have a] policy not to accept

contributions from such entities,’’ id.,

‘‘do not pose that danger of corruption.’’

Id. at 259. Thus, there is no justification

for the application of the independent

expenditure prohibition in section 441b

to these corporations. The Court

emphasized that these characteristics

were ‘‘essential to [its] holding that

[Massachusetts Citizens] may not

constitutionally be bound by § 441b’s

restriction on independent spending.’’

Id. 263–64. Consequently, the

Commission believes it has ample

justification for subjecting groups that

do not possess these characteristics to

the full requirements of section 441b.

It is also difficult to reconcile the

Eighth Circuit’s conclusion with the

Supreme Court’s decision in Austin v.

Michigan Chamber of Commerce, 494

U.S. 652 (1990). In Austin, the Court
29360 Federal Register / Vol. 63, No. 103 / Friday, May 29, 1998 / Proposed Rules

reviewed the application of a state

statute that was similar to section 441b

to a nonprofit state chamber of

commerce. The chamber did not itself

engage in traditional business activities.

However, its bylaws set forth ‘‘varied

purposes * * * several of which [were]

not inherently political.’’ 494 U.S. at

662. For example, it distributed

information related to social, civic and

economic conditions, trained and

educated its members, and promoted

ethical business practices. The Court

noted that ‘‘[m]any of its seminars,

conventions, and publications [were]

politically neutral and focus[ed] on

business and economic issues,’’ that

were ‘‘not expressly tied to political

goals.’’ Id. Thus, even though it was not

engaged in a business for profit, ‘‘[t]he

Chamber’s nonpolitical activities * * *

suffice[d] to distinguish it from

[Massachusetts Citizens] in the context

of this characteristic.’’ Id. at 663.

With regard to the acceptance of

corporate contributions, the Court was

even more emphatic, saying that ‘‘[o]n

this score, the Chamber differs most

greatly from [Massachusetts Citizens].’’

Id. at 664. The Court said that, under

MCFL, nonprofit organizations that

accept contributions from business

corporations are not entitled to any

exemption from section 441b, and

pointed out that if the rule were

otherwise, ‘‘[b]usiness corporations

* * * could circumvent the Act’s

restriction by funneling money through

[a nonprofit organization’s] general

treasury.’’ Id. The Court concluded that,

under this standard, the Chamber was

not entitled to any exemption from the

state’s version of section 441b. ‘‘Because

the Chamber accepts money from forprofit corporations, it could, absent

application of [the state corporate

expenditure prohibition], serve as a

conduit for corporate political

spending.’’ Id.

The Commission continues to believe

that section 114.10 accurately interprets

these two Supreme Court cases, and the

decisions of several other courts support

this conclusion. In Clifton v. FEC, 114

F.3d 1309 (lst Cir. 1997), cert. denied,

118 S. Ct. 1306 (1998), the First Circuit

said the MCFL Court ‘‘stressed as

‘essential’ the fact that the anti-abortion

group there involved did not accept

contributions from business

corporations or unions * * *. This was

important to the Court because it had

previously sustained the right of

Congress to limit the election influence

of massed economic power in corporate

or union form.’’ Id. at 1312. Since the

nonprofit corporation involved in that

case accepted contributions from other

corporations, the Court concluded that

it was not entitled to the MCFL

exemption, saying that it fell

‘‘somewhere between the entity

protected in [MCFL] and that held

unprotected in Austin.’’ Id. at 1312–13.

The First Circuit also said a de minimis

rule regarding the acceptance of

corporate contributions would be

inconsistent with the Austin decision.

Id. at 1313.

In dictum, the D.C. Circuit has also

expressed support for the Commission’s

interpretation of this aspect of the MCFL

decision. ‘‘[T]he MCFL constitutional

exemption * * * requires that the

organization * * * not accept

contributions from labor unions or

corporations.’’ Akins v. FEC, 101 F.3d

731, 742 n.10 (D.C. Cir. 1996) (en banc)

(dictum), cert. granted, 117 S. Ct. 2451

(1997).

Two district courts have also

supported the Commission’s

interpretation. In FEC v. NRA Political

Victory Fund, 778 F. Supp. 62 (D.D.C.

1991), rev’d on other grounds, 6 F.3d

821 (D.C. Cir.), cert. dismissed for want

of jurisdiction, 513 U.S. 88 (1994), the

court concluded that unless a

corporation can show that it does not in

fact accept contributions from business

corporations or unions or has a policy

‘‘equivalent to that of MCFL’’ of not

accepting such contributions, it does

‘‘not fit in the group of organizations

affected by the MCFL holding, a group

which the Court acknowledged * * *

would be ‘‘small,’’’ 778 F. Supp. at 64

(quoting MCFL, 479 U.S. at 264).

The district court in Faucher v. FEC,

743 F. Supp. 64 (D. Me. 1990), aff’d, 928

F.2d 468 (1st Cir.), cert. denied, 502 U.S.

820 (1991), reached a similar

conclusion.

In [MCFL], the Supreme Court made clear

that one of the ‘‘essential’’ factors for its

holding was that the nonprofit corporation

there did not receive, and had a policy of not

receiving, any corporate funds. * * *

[A]lthough the amounts received by [the

plaintiff nonprofit organization] from

corporations have been comparatively

modest, they are obviously not subject to any

control. Without an explicit policy against

contributions from corporations, the risk

remains that an organization like [the

plaintiff] could ‘‘serv[e] as [a conduit] for the

type of direct spending that creates a threat

to the political marketplace.’’ * * * It is this

potential for influence that supports the

restrictions on corporate funding.

743 F. Supp. at 69–70 (emphasis in

original; quoting MCFL, 479 U.S. at

264).

In sum, both because it is well settled

that a decision by one circuit court of

appeals is not binding in other circuits,

and because the Commission believes

the challenged regulation reflects a

correct reading of controlling Supreme

Court precedent and is therefore

constitutional, the Commission has

decided not to open a rulemaking in

response to this Petition.

Therefore, at its open meeting of May

21, 1998, the Commission voted not to

initiate a rulemaking to revise its

regulations regarding qualified

nonprofit corporations, found at 11 CFR

114.10. Copies of the General Counsel’s

recommendation on which the

Commission’s decision is based are

available for public inspection and

copying in the Commission’s Public

Records Office, 999 E Street, NW,

Washington, DC 20463, (202) 694–1120

or toll-free (800) 424–9530. Interested

persons may also obtain a copy by

dialing the Commission’s FAXLINE

service at (202) 501–3413 and following

its instructions. Request document #233.

Dated: May 22, 1998.

Joan D. Aikens,

Chairman, Federal Election Commission.

[FR Doc. 98–14193 Filed 5–28–98; 8:45 am]

BILLING CODE 6715–01–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 98–CE–30–AD]

RIN 2120–AA64

Airworthiness Directives; Pilatus

Aircraft Ltd. Model PC–7 Airplanes

AGENCY: Federal Aviation

Administration, DOT.

ACTION: Notice of proposed rulemaking

(NPRM).

SUMMARY: This document proposes to

adopt a new airworthiness directive

(AD) that would apply to certain Pilatus

Aircraft Ltd. Model PC–7 airplanes. The

proposed AD would require replacing

the seal unit on both main landing gear

(MLG) legs and the nose landing gear

(NLG) leg. The proposed AD is the

result of mandatory continuing

airworthiness information (MCAI)

issued by the airworthiness authority for

Switzerland. The actions specified by

the proposed AD are intended to

prevent MLG or NLG failure caused by

deterioration of a MLG or NLG leg seal

unit, which could result in damage to

the airplane or airplane controllability

problems during takeoff, landing, or taxi

operations.

DATES: Comments must be received on

or before July 3, 1998.

ADDRESSES: Submit comments in

triplicate to the Federal Aviation