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###### Federal Election Commission

          - 11 CFR Parts 106 and 300 
          - [Notice 2005-22] 

# AGENCY:

Federal Election Commission. 

# ACTION:

Reopening of comment period. 

# SUMMARY:

                        This notice reopens the comment period for a notice of proposed rulemaking for proposed changes to regulations regarding payments by State, district or local party committees for salaries and wages of employees who spend 25 percent or less of their compensated time in a month on activities in connection with a Federal election. The proposed changes would require these expenses to be paid using at least some Federal funds, consistent with the rulings of the United States District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit in                         *Shays*                         v.                         *Federal Election Commission*.                     

# DATES:

Comments must be received on or before September 29, 2005. 

# ADDRESSES:

                        All comments must be in writing, addressed to Ms. Mai T. Dinh, Assistant General Counsel, and submitted in either e-mail, facsimile or paper form. Commenters are strongly encouraged to submit comments by e-mail or facsimile to ensure timely receipt and consideration. E-mail comments must be sent to either                         *SPW2@fec.gov*                         or submitted through the Federal eRegulations Portal at                         *http://www.regulations.gov*. If the e-mail 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 paper copy follow-up. Paper comments and paper 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.                     

# FOR FURTHER INFORMATION CONTACT:

                         Ms. Mai T. Dinh, Assistant General Counsel, Mr. Anthony T. Buckley, 999 E Street,                               ( print page 51303)                            NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.                     

# SUPPLEMENTARY INFORMATION:

                     The Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. 107-155, 116 Stat. 81 (March 27, 2002), amended the Federal Election Campaign Act of 1971, as amended (the “Act”), 2 U.S.C. 431*et seq.*                    , by requiring State, district and local party committees (“State party committees”) to pay the salaries and wages of employees who spend more than 25 percent of their compensated time per month on activities in connection with a Federal election entirely with Federal funds.[1] 2 U.S.C. 431(20)(A)(iv) and 441i(b)(1). However, BCRA is silent on what type of funds State party committees must use to pay the salaries and wages of employees who spend some, but not more than 25 percent, of their compensated time per month on activities in connection with a Federal election. The Commission promulgated 11 CFR 106.7(c)(1) and (d)(1)(i), and 300.33(c)(2) to address salaries and wages for both types of employees. Under these rules, State party committees may pay the salaries or wages of employees who spend 25 percent or less of their compensated time each month on these activities entirely with funds that comply with State law.                     *Id*.                 

                    In                     *Shays*                     v.                     *FEC*, 337 F. Supp. 2d 28 (D.D.C. 2004),                     *aff'd*, No. 04-5352, 2005 WL 1653053 (D.C. Cir. July 15, 2005) (“                    *Shays*                    ”), the District Court invalidated section 300.33(c)(2) because it is inconsistent with BCRA.                     *See Shays*, 337 F. Supp. 2d at 114;                     *see also Chevron, U.S.A., Inc.*                     v.                     *Natural Res. Def. Council*, 467 U.S. 837, 842-43 (1984). Although the Court of Appeals affirmed the District Court's invalidation of the rule, its basis differed from the District Court's. The Court of Appeals found the Commission's justification for the rule did not satisfy the requirements of the Administrative Procedure Act, 5 U.S.C. 551*et seq. Shays*, No. 04-5352, slip op. at 62, 2005 WL 1653053 (D.C. Cir. July 15, 2005).                 

                    Before the Court of Appeals decision was issued, the Commission published a Notice of Proposed Rulemaking addressing State party committee payment of certain wages and salaries. Notice of Proposed Rulemaking on State, District, and Local Party Committee Payment of Certain Salaries and Wages, 70 FR 23072 (May 4, 2005). The NPRM offered several proposals as to the proportion of Federal funds that must be used to pay the salaries and wages of State party committee employees who spends 25 percent or less of their compensated time in a month on activities in connection with a Federal election. The comment period for the NPRM ended on June 3, 2005, and a hearing was held on August 4, 2005. Written comments and a transcript of the hearing can be found at                     *http://www.fec.gov/​law/​law_​rulemakings.shtml#party_​salaries*.                 

Witnesses at the hearing suggested that the Commission seek additional information that may assist the Commission in its decisionmaking. The Commission is reopening the comment period to allow all interested persons to submit information or comments that may be useful in this rulemaking in light of the Court of Appeals opinion. 

Dated: August 24, 2005. 

Michael E. Toner, 

Vice Chairman, Federal Election Commission. 

# Footnotes

1.                             “Federal funds” are funds that are subject to the contribution limitations, source prohibitions, and reporting requirements of the Act. 11 CFR 300.2(g).                    
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[FR Doc. 05-17156 Filed 8-29-05; 8:45 am] 

BILLING CODE 6715-01-P