This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

56599 

Vol. 70, No. 187 

Wednesday, September 28, 2005 

1See 11 CFR 300.2(k). 

FEDERAL ELECTION COMMISSION 

11 CFR Part 300 

[Notice 2005–24] 

Definitions of ‘‘Solicit’’ and ‘‘Direct’’ 

AGENCY: Federal Election Commission. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Federal Election 

Commission requests comments on 

proposed revisions to its definitions of 

the terms ‘‘to solicit’’ and ‘‘to direct’’ for 

its regulations on raising and spending 

Federal and non-Federal funds. Current 

Commission regulations define ‘‘to 

solicit’’ as ‘‘to ask that another person 

make a contribution, donation, transfer 

of funds, or otherwise provide anything 

of value.’’ The regulations define ‘‘to 

direct’’ as ‘‘to ask a person who has 

expressed an intent to make a 

contribution, donation, or transfer of 

funds, or to provide anything of value, 

to make that contribution, donation, or 

transfer of funds, or to provide that 

thing of value.’’ These rules were 

challenged in Shays v. FEC. Upholding 

a District Court decision, the Court of 

Appeals held that the Commission’s 

definitions of ‘‘to solicit’’ and ‘‘to 

direct’’ were invalid because they 

violated Congress’s intent. The 

Commission has filed a petition for a 

rehearing en banc of the Court of 

Appeals decision. At the same time, to 

comply with the decisions of the 

District Court and the Court of Appeals, 

the Commission is issuing this Notice of 

Proposed Rulemaking regarding its 

definitions of ‘‘to solicit’’ and ‘‘to 

direct.’’ 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 October 28, 2005. The 

Commission will hold a hearing on the 

proposed rules on November 14 or 15, 

2005, or both, at 10 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, must be addressed to Mr. Brad 

C. Deutsch, Assistant General Counsel, 

and must be submitted in either e-mail, 

facsimile, or paper copy form. 

Commenters are strongly encouraged to 

submit comments by e-mail or fax to 

ensure timely receipt and consideration. 

E-mail comments must be sent to either 

solicitdirect@fec.gov or submitted 

through the Federal eRegulations Portal 

at http://www.regulations.gov. If e-mail 

comments include an attachment, the 

attachment must be in either Adobe 

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

format. Faxed comments must be sent to 

(202) 219–3923, with paper copy followup. Paper comments and paper copy 

follow-up of faxed comments must 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: Mr. 

Brad C. Deutsch, Assistant General 

Counsel, Mr. Jonathan Levin, Senior 

Attorney, or Mr. Ron B. Katwan, 

Attorney, 999 E Street, 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 (2002), amended the Federal 

Election Campaign Act of 1971, as 

amended, 2 U.S.C. 431 et seq. (the 

‘‘Act’’), by adding to the Act new 

restrictions and prohibitions on the 

receipt, solicitation, and use of certain 

types of non-Federal funds (i.e., funds 

that do not comply with the amount 

limits, source prohibitions, and 

reporting requirements of the Act),1

which are commonly referred to as ‘‘soft 

money.’’ The terms ‘‘to solicit’’ and ‘‘to 

direct’’ are central to three core 

provisions of BCRA. First, national 

parties ‘‘may not solicit * * * or direct’’ 

soft money. 2 U.S.C. 441i(a)(1). Second, 

national, State, district, and local party 

committees may not solicit any nonFederal funds or direct any donations to 

certain entities organized under chapter 

501(c) or 527 of the Internal Revenue 

Code. 2 U.S.C. 441i(d); 11 CFR 300.11 

and 300.37. Third, Federal candidates 

and officeholders ‘‘shall not * * * 

solicit’’ or ‘‘direct’’ funds in connection 

with any election unless the funds 

comply with the Act’s contribution 

limits and prohibitions. 2 U.S.C. 

441i(e)(1)(A) and (B); see also 2 U.S.C. 

441i(e)(2)–(4). In addition, BCRA added 

prohibitions on soliciting contributions 

or donations from foreign nationals and 

on fraudulent solicitations. 2 U.S.C. 

441e(a)(2) and 441h(b). However, 

neither BCRA nor FECA contains a 

definition of either ‘‘to solicit’’ or ‘‘to 

direct.’’ 

On July 29, 2002, the Commission 

promulgated regulations implementing 

BCRA’s new limits on raising and 

spending of non-Federal funds by party 

committees, and Federal candidates and 

officeholders. Final Rules and 

Explanation and Justification for 

Prohibited and Excessive Contributions: 

Non-Federal Funds or Soft Money, 67 

FR 49064 (July 29, 2002) (‘‘Soft Money 

Final Rules’’). These regulations for the 

first time defined the terms ‘‘to solicit’’ 

and ‘‘to direct.’’ Section 300.2(m) 

defines ‘‘to solicit’’ as ‘‘to ask that 

another person make a contribution, 

donation, transfer of funds, or otherwise 

provide anything of value, whether the 

contribution, donation, transfer of 

funds, or thing of value, is to be made 

or provided directly, or through a 

conduit or intermediary.’’ 11 CFR 

300.2(m). The Commission defined ‘‘to 

direct’’ as ‘‘to ask a person who has 

expressed an intent to make a 

contribution, donation, or transfer of 

funds, or to provide anything of value, 

to make that contribution, donation, or 

transfer of funds, or to provide that 

thing of value, including through a 

conduit or intermediary.’’ 11 CFR 

300.2(n). 

I. Overview of Court Decisions 

In Shays v. FEC, 337 F. Supp.2d 28 

(D.D.C. 2004) (‘‘Shays District’’), aff’d, 

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 

2005) (pet. for reh’g en banc filed Aug. 

29, 2005), the District Court held that 

the Commission’s definitions of ‘‘to 

solicit’’ and ‘‘to direct’’ did not survive 

56600 Federal Register / Vol. 70, No. 187 / Wednesday, September 28, 2005 / Proposed Rules 

2The District Court described the first step of the 

Chevron analysis, which courts use to review an 

agency’s regulations: ‘‘a court first asks ‘whether 

Congress has directly spoken to the precise question 

at issue. If the intent of Congress is clear, that is 

the end of the matter; for the court, as well as the 

agency, must give effect to the unambiguously 

expressed intent of Congress.’ ’’ See Shays District, 

at 51 (quoting Chevron, U.S.A., Inc. v. Natural Res. 

Def. Council, 467 U.S. 837, 842–43 (1984)). In the 

second step of the Chevron analysis, the court 

determines if the agency’s interpretation is a 

permissible construction of the statute that does not 

‘‘unduly compromise’’ FECA’s purposes by 

‘‘creat[ing] the potential for gross abuse.’’ See Shays 

District at 91, citing Orloski v. FEC, 795 F.2d 156, 

164–65 (D.C. Cir. 1986) (internal citations omitted). 

3See note 2. 

the second step of Chevron review.2

Shays District at 77, 79. The Court of 

Appeals for the D.C. Circuit affirmed the 

District Court’s decision but instead 

held that the Commission’s definitions 

of ‘‘to solicit’’ and ‘‘to direct’’ did not 

survive the first step of Chevron 

review.3 Shays v. FEC, 414 F.3d 76, 105–

07 (D.C. Cir. July 15, 2005) (‘‘Shays 

Appeal’’). 

The Court of Appeals held that the 

Commission’s definition of ‘‘to solicit’’

was limited to explicit, direct requests 

for money and, consequently, left 

‘‘unregulated ‘a wide array of activity’

* * * that the term ‘solicit’ could 

plausibly cover.’’ Id. at 104. 

Specifically, the Court of Appeals 

determined that the Commission’s 

definition excluded indirect requests for 

money, ‘‘coded statements,’’ and ‘‘winks 

and nods.’’ Id. The Court of Appeals 

concluded that by limiting ‘‘to solicit’’

to explicit, direct requests for money, 

and thus permitting indirect requests for 

funds, the Commission’s definition 

allows candidates and parties to 

circumvent BCRA’s prohibitions and 

restrictions on non-Federal funds and 

thereby violates ‘‘Congress’s intent to 

shut down the soft-money system.’’ Id. 

at 105–06. 

The Court of Appeals also concluded 

that the narrow definition of ‘‘to solicit’’

was inconsistent with BCRA’s rejection 

of the ‘‘magic words’’ standard for 

advocacy advertisements. Id. at 106. The 

court explained that ‘‘whereas preBCRA law permitted unregulated 

financing of ads lacking ‘explicit words 

of advocacy of election or defeat of a 

candidate,’ BCRA adopts more robust 

standards for communication oriented 

towards elections—a change understood 

to reflect Congress’s judgment that the 

old standard was ‘functionally 

meaningless.’ ’’ Id. (internal citations 

omitted). The Court of Appeals agreed 

with the District Court’s observation 

that the Commission’s ‘‘interpretation of 

‘solicit’ and ‘direct’ is similar to the preBCRA express advocacy test and would 

allow candidates and parties to avoid 

regulation by simply refraining from 

using certain ‘magic words.’ ’’ Id. 

As to the term ‘‘to direct,’’ the District 

Court held that the Commission’s 

definition was not a permissible 

construction of the statute on two 

grounds. First, the District Court 

determined that the term ‘‘to direct’’ had 

more than one meaning but that the 

Commission’s definition of ‘‘to direct’’

did not comport with any dictionary 

definition of the term. Shays District at 

76. Second, the District Court held that 

the Commission’s definition of ‘‘to 

direct’’ was subsumed under its 

definition of ‘to solicit’ because ‘‘[t]he 

Commission’s definition of ‘‘solicit’’

covers all requests, regardless of what 

expressions a requestee may or may not 

have made.’’ Id. at 77. The District Court 

concluded that, as defined by the 

Commission, the term ‘‘to direct’’ had 

no meaningful function in the 

regulations. Id. Subsequently, the Court 

of Appeals held that the Commission’s 

definition of ‘‘to direct’’ was invalid 

because it effectively defined ‘‘to direct’’

as ‘‘to ask’’ (namely, to ask someone 

who has expressed an intent to make a 

contribution or donation) and thus, like 

the definition of ‘‘to solicit’’ and 

contrary to Congress’s intent, limited 

‘‘to direct’’ to explicit requests for funds. 

The Court of Appeals did not reach the 

question of whether ‘‘to avoid statutory 

redundancy, ‘direct’ must mean more 

than ‘ask in response,’ when ‘solicit’

means ‘ask’ plain and simple.’’ Shays 

Appeal at 107. 

The Court of Appeals affirmed the 

District Court’s order that had remanded 

both definitions to the Commission for 

further action consistent with its 

opinion. Id. The Commission has filed 

a petition for a rehearing en banc of the 

Court of Appeals decision. In the event 

the Commission prevails on rehearing, 

the Commission may terminate this 

rulemaking proceeding prior to 

adoption of final rules. 

II. 11 CFR 300.2(m)—Definition of ‘‘To 

Solicit’’ 

This NPRM proposes a revised 

definition of ‘‘to solicit’’ in section II–

A below. The Commission is also 

considering several other alternatives, 

which are presented in section II–B 

below. 

A. Proposed Revised Definition 

To comply with the Shays decisions, 

the Commission proposes to revise 11 

CFR 300.2(m) by defining ‘‘to solicit’’ as 

‘‘to ask, suggest, or recommend that 

another person make a contribution, 

donation, transfer of funds, or otherwise 

provide anything of value, whether it is 

to be made or provided directly or 

through a conduit or intermediary. A 

solicitation is a written or oral 

communication, whether explicit or 

implicit, construed as a reasonable 

person would understand it in context.’’

By including the terms ‘‘suggest’’ and 

‘‘recommend’’ and by explicitly 

incorporating a reasonable person 

standard into the revised definition of 

‘‘to solicit,’’ the Commission seeks to 

clarify that ‘‘to solicit’’ covers not only 

communications that explicitly and 

directly request contributions or 

donations, but also communications 

that implicitly or indirectly attempt to 

motivate another person to make a 

contribution or donation and also covers 

all such communications regardless of 

whether they use certain ‘‘magic 

words.’’ Thus, the proposed 

amendments to the definition would 

make clear that the following 

communications cited by the Court of 

Appeals as examples of 

communications that would escape 

regulation under the current definition 

of ‘‘solicit,’’ are, in fact, solicitations 

under the current rules: (1) ‘‘It’s 

important for our State party to receive 

at least $100,000 from each of you in 

this election’’ and (2) ‘‘X is an effective 

State party organization; it needs to get 

as many $100,000 contributions as 

possible.’’ Shays Appeal at 103. 

The revised definition explicitly 

embodies two principles that already 

form the basis of the Commission’s 

current definition of ‘‘to solicit’’: (1) A 

solicitation must involve an affirmative 

verbalization (whether written or oral) 

and (2) a communication is a 

solicitation only if a reasonable person 

would understand the communication 

to be asking another person to make a 

contribution or donation. First, as the 

Commission explained in the BCRA 

rulemaking on foreign national 

contributions and donations, ‘‘[b]y using 

the term ‘ask,’ the Commission defined 

‘solicit’ to require some affirmative 

verbalization or writing, thereby 

providing members of Congress, 

candidates and committees with an 

understandable standard.’’ Final Rules 

and Explanation and Justification for 

Contribution Limitations and 

Prohibitions, 67 FR 69928, 69942 (Nov. 

19, 2002) (‘‘Foreign National Final 

Rules’’). Under the current regulation, 

the focus of any determination as to 

whether a communication is a 

solicitation is the plain meaning of the 

words used in the communication. 

Similarly, in assessing which 

communications constitute solicitations 

for purposes of determining whether the 

funds received in response to the 

communication are contributions, the 

Commission focuses on ‘‘the plain 

Federal Register / Vol. 70, No. 187 / Wednesday, September 28, 2005 / Proposed Rules 56601 

meaning of the words used in the 

communication.’’ Final Rules and 

Explanation and Justification for 

Political Committee Status, Definition of 

Contribution, and Allocation for 

Separate Segregated Funds and 

Nonconnected Committees, 69 FR 

68056, 68057 (Nov. 23, 2004) (‘‘Political 

Committee Status Final Rules’’). 

Second, while requiring some 

affirmative verbalization, the 

Commission clarified in the Foreign 

National Final Rules that it does not 

intend to restrict the current definition 

of ‘‘to solicit’’ only to communications 

explicitly asking for contributions or 

donations but rather ‘‘intended to 

include ‘a[ny] palpable communication 

reasonably understood to convey a 

request for some action * * *.’ ’’ Foreign 

National Final Rules at 69942. However, 

the current rule is limited to 

communications that ask another person 

to make a contribution or donation, and 

does not include any other type of 

political speech, such as statements of 

political support. 

Thus, in determining whether a 

communication constitutes a 

solicitation, the Commission currently 

looks to whether, in context, the 

communication would be reasonably 

understood to ask that another person 

make a contribution or donation. The 

Commission believes that the Court of 

Appeals interpreted the current rule 

more narrowly than is warranted. The 

Commission does not regard the term 

‘‘ask’’ as requiring the use of only 

certain specified ‘‘magic words.’’ Last 

year, in the Explanation and 

Justification for new rules regarding 

contributions received in response to 

solicitations, the Commission stated that 

solicitations are not limited to 

communications ‘‘that use specific 

words or phrases that are similar to a 

list of illustrative phrases.’’ Political 

Committee Status Final Rules at 68057. 

The Commission emphasizes that the 

reasonable person standard is an 

objective test that does not turn on 

subjective interpretations of a 

communication. Thus, focusing on the 

plain meaning of the words used in the 

communication as reasonably 

understood leaves the person making 

the communication with substantial 

control over whether the 

communication comes within the 

definition of ‘‘solicit.’’

By revising the definition of ‘‘to 

solicit’’ to reflect explicitly these two 

principles, the proposed rule would 

address the Court of Appeals’ concern 

that the Commission’s current definition 

permits circumvention of the Act’s 

limits and prohibitions by allowing 

solicitation through indirect requests for 

contributions or donations. The 

Commission seeks comment on this 

proposal. Would the proposed 

definition be too broad or too narrow? 

Would it reduce the opportunities for 

circumvention of the Act or the 

actuality or appearance of corruption? 

Would it properly effectuate 

Congressional intent? Would it provide 

sufficient guidance to candidates, their 

authorized committees, and political 

party committees, or their agents? 

Would it affect the exercise of political 

activity, and if so, how? Would it be 

practical to enforce? 

The proposed regulation defines ‘‘to 

solicit’’ as ‘‘to ask, suggest, or 

recommend.’’ This list is not intended 

to be comprehensive but, as explained 

above, is merely intended to make clear 

that ‘‘to solicit’’ encompasses both 

direct and indirect requests for 

contributions or donations. 

Nevertheless, the Commission seeks 

comment on whether additional terms 

should be added to the definition of ‘‘to 

solicit’’ or whether one or more of the 

terms included in the proposed 

definition should be removed. 

The Commission notes that the 

proposed rule at 11 CFR 300.2(m) would 

retain the statement, included in the 

current rule, that merely providing 

information or guidance as to the 

requirements of a particular law is not 

solicitation. 

B. Alternative Proposals 

The Commission also seeks comment 

on the following five alternatives to the 

definition proposed above. First, the 

Commission seeks comment on whether 

to modify the definition of ‘‘to solicit’’

proposed in section II–A by not 

including an explicit reasonable person 

standard. Alternative One would thus 

revise the second sentence of the 

definition proposed in section II–A to 

provide that ‘‘a solicitation is a written 

or oral communication, whether explicit 

or implicit.’’

Second, the Commission seeks 

comment on whether, instead, to begin 

with the current definition of ‘‘to 

solicit’’ (i.e. current 11 CFR 300.2(m)) 

and to modify the current definition to 

make clear that the regulation applies 

not only to explicit requests or 

communications that use certain ‘‘magic 

words’’ but also to indirect, implied 

requests for contributions or donations. 

Alternative Two would provide that ‘‘to 

solicit means to ask, explicitly or 

implicitly, that another person make a 

contribution, donation, transfer of 

funds, or otherwise provide anything of 

value.’’ Alternative Two, like the 

current rule, would not include the 

terms ‘‘suggest’’ or ‘‘recommend’’ or an 

explicit reasonable person standard. The 

Explanation and Justification for 

Alternative Two would also make clear 

that a solicitation requires an actual 

request for funds and does not in any 

way apply to other types of political 

speech, such as statements of political 

support for an organization. 

The third alternative on which the 

Commission seeks comment would not 

change the current definition of ‘‘to 

solicit’’ at all. Instead, Alternative Three 

would revise the Explanation and 

Justification for the current definition to 

clarify that the current definition 

embodies the two principles set out 

above. Under Alternative Three, the 

Explanation and Justification would 

state that to qualify as a solicitation, a 

communication (1) must involve an 

affirmative verbalization (whether 

written or oral) and (2) must be 

reasonably understood in context to be 

asking another person to make a 

contribution or donation. The 

Commission seeks comment on whether 

this is a proper interpretation of the 

current rule and is otherwise 

appropriate. Would revising the 

Explanation and Justification for the 

current definition, without amending 

the definition itself, be consistent with 

the decision of the Court of Appeals in 

Shays? Would the current definition of 

‘‘to solicit,’’ if explained with reference 

to these two principles, be too broad or 

too narrow? The Commission seeks 

comments on whether other statements 

should be added to the Explanation and 

Justification for the current definition to 

explain better what communications are 

covered by the current rules. Is there 

any evidence that the current definition 

of ‘‘to solicit’’ has led to circumvention 

of the Act or the actuality or appearance 

of corruption? Would the current 

definition, along with a revised 

Explanation and Justification, provide a 

standard that is sufficiently clear to 

make enforcement of the Commission’s 

BCRA rules practical? 

Fourth, as indicated above, the 

Commission has filed a petition for a 

rehearing en banc of the Court of 

Appeals decision. In the event the 

Commission should prevail on 

rehearing, the Commission seeks 

comment on whether it should adopt a 

definition that limits solicitations to 

explicit requests for contributions or 

donations. Alternative Four would 

define ‘‘to solicit’’ to mean ‘‘to ask 

explicitly, by oral or written 

communication, that another person 

make a contribution, donation, transfer 

of funds, or otherwise provide anything 

of value.’’ Would such an alternative 

definition be consistent with, and 

should it draw on, the approach 

56602 Federal Register / Vol. 70, No. 187 / Wednesday, September 28, 2005 / Proposed Rules 

4See Shays Appeal at 105–07. 

5 11 CFR 300.64 implements 2 U.S.C. 441i(e)(3). 

6Copies of these advisory opinions can be found 

at http://www.fec.gov/law/advisoryopinions.shtml. 

7See 2 U.S.C. 441i(e)(1)(B) (permitting 

solicitations by Federal candidates for State 

candidates so long as such solicitations comply 

with the source prohibitions and amount 

restrictions under the Act for Federal candidates). 

See also 2 U.S.C. 441i(e)(4) (permitting certain 

solicitations, with restrictions, by Federal 

candidates and officeholders for funds to be used 

by certain tax-exempt organizations for certain 

types of Federal election activity). 

adopted when the Commission 

promulgated 11 CFR 100.57(a), which 

provides that funds received in response 

to certain communications must be 

treated as contributions under the Act? 

As indicated above, the Explanation and 

Justification for 11 CFR 100.57(a) stated 

that the regulation ‘‘requires an 

examination of only the text of a 

communication. The regulation turns on 

the plain meaning of the words used in 

the communication and does not 

encompass implied meanings or 

understandings. It does not depend on 

reference to external events, such as the 

timing or targeting of a solicitation, nor 

is it limited to solicitations that use 

specific words or phrases * * *.’’

Political Committee Status Final Rules, 

69 FR at 68057. 

The fifth alternative would be to 

provide no definition for ‘‘to solicit.’’

Several Commission regulations 

concerning corporate and labor 

organization activity in 11 CFR part 114 

use the terms ‘‘solicit’’ and 

‘‘solicitation’’ without defining them. 

See, e.g., 11 CFR 114.5(g), 114.6, 114.7, 

and 114.8. The Commission is 

considering whether, instead of revising 

its definition of ‘‘to solicit,’’ it should 

repeal that definition and leave the term 

undefined for purposes of 11 CFR part 

300, allowing the meaning of ‘‘to 

solicit’’ to develop on a case-by-case 

basis through the advisory opinion and 

enforcement processes. The 

Commission seeks comment on whether 

the meaning of the term ‘‘to solicit’’ is 

sufficiently understandable to 

candidates, their authorized 

committees, political party committees, 

and others governed by BCRA such that 

a definition by regulation is 

unnecessary. Does the discussion of the 

meaning of ‘‘to solicit’’ in the Court of 

Appeals decision provide sufficient 

guidance to candidates, their authorized 

committees, and political party 

committees so that a definition through 

regulation is not needed? 4 If the 

Commission decides not to define ‘‘to 

solicit,’’ should it provide additional 

guidance by including examples of what 

would and would not be a solicitation 

in the Explanation and Justification? 

C. Conduct 

The Court of Appeals observed that 

solicitations include indirect requests 

through conduct such as ‘‘winks and 

nods.’’ Shays Appeal at 104–05 (relying 

on Wisconsin Dep’t of Revenue v. 

William Wrigley, Jr. Co., 505 U.S. 214, 

223 (1992) for the proposition that the 

term ‘‘solicitation of orders’’ ‘‘includes, 

not just explicit verbal requests for 

orders, but also any speech or conduct 

that implicitly invites an order’’). The 

Commission notes that while the 

proposed definition retains the 

principle that a solicitation must 

involve an affirmative verbalization, it 

also takes into account the context in 

which the communication is made. 

Thus, words that would not by their 

plain meaning convey a solicitation, 

may in some contexts be reasonably 

understood as one when, for example, 

they are accompanied by ‘‘winks and 

nods.’’ Similarly, words that would by 

their plain meaning normally be 

understood as a solicitation, may not 

constitute one when taken in context, 

for example, when the words are used 

as part of a joke or parody. The 

Commission seeks comment on 

whether, in determining if a 

communication is a solicitation, it is 

appropriate to consider the non-verbal 

context of that communication. Does 

BCRA require the Commission to 

consider the non-verbal aspects of a 

communication in determining whether 

a solicitation has occurred? If the 

Commission includes the non-verbal 

aspects of a communication in its 

definition of ‘‘to solicit,’’ will Federal 

officeholders, candidates, their 

authorized committees, political party 

committees, and their agents have 

adequate notice of the range of 

statements and actions that are covered 

by the definition? 

The Commission seeks comment on 

whether it should modify the definition 

of ‘‘to solicit’’ proposed in section II–A, 

above, by including solicitations 

conveyed largely through conduct. This 

modification would revise the second 

sentence of the rule proposed in section 

II–A to provide that ‘‘a solicitation is a 

written or oral communication or 

conduct, whether explicit or implicit, 

construed as a reasonable person would 

understand it in context.’’ Is the 

inclusion of conduct in the definition of 

‘‘to solicit’’ necessary to comply with 

the decision of the Court of Appeals? Is 

it necessary to prevent circumvention of 

the Act, or actual or apparent 

corruption? The Commission seeks 

examples of communications largely 

conveyed through conduct that should 

constitute solicitations. 

If the Commission does not adopt the 

proposed definition of ‘‘to solicit’’

discussed in section II–A, but rather 

decides to adopt one of the alternatives 

discussed in section II–B, should it also 

include solicitations largely conveyed 

through conduct in that alternative? 

The Commission also invites 

comment regarding a Federal candidate 

or officeholder’s appearance at a 

fundraising event (other than an event 

held by a State, district, or local party) 

where non-Federal funds are being 

raised. The Commission raised this 

issue in a related rulemaking, in which 

it decided to revise the Explanation and 

Justification for the Commission’s rules 

at 11 CFR 300.64(b). These rules permit 

Federal candidates and officeholders to 

attend and speak at State, district, and 

local party fundraising events ‘‘without 

restriction or regulation.’’ 5 See Revised 

Explanation and Justification for Final 

Rules on Candidate Solicitation at State, 

District, and Local Party Fundraising 

Events, 70 FR 37649 (June 30, 2005). 

In certain advisory opinions, the 

Commission has permitted attendance 

and participation by Federal candidates 

and officeholders at fundraising events 

for non-Federal funds held by State and 

local candidates, or by non-Federal 

political organizations, so long as the 

solicitations included, or were 

accompanied by, a disclaimer 

adequately indicating that the Federal 

candidate or officeholder was only 

asking for Federally permissible funds. 

See Advisory Opinions 2003–03, 2003–

05, and 2003–36.6 The Commission 

requests comment on whether these 

advisory opinions, allowing attendance 

and limited participation at such 

functions, subject to various restrictions 

and disclaimer requirements, struck the 

proper balance. Alternatively, are these 

advisory opinions inconsistent with 

BCRA’s language or Congressional 

intent and should they therefore be 

superseded? Does the explicit 

permission granted in 2 U.S.C. 

441i(e)(3) to attend, speak, or be a 

featured guest at State, district, and 

local party fundraising events, by 

implication, indicate that Congress 

sought to prohibit Federal candidates 

and officeholders from doing so at other 

fundraising events unless such events 

are exclusively raising Federal funds? 7

Should attendance by Federal 

candidates and officeholders at 

fundraising events (other than events 

held by State, district, or local party 

committees) where non-Federal funds 

are being raised constitute a solicitation 

in and of itself? Alternatively, should 

the disclaimer and other requirements 

set forth in Advisory Opinions 2003–03, 

Federal Register / Vol. 70, No. 187 / Wednesday, September 28, 2005 / Proposed Rules 56603 

8The Commission has interpreted section 

441i(e)(3) to permit candidates and Federal 

officeholders to solicit non-Federal funds at State 

party fundraising events. See 11 CFR 300.64; 

Revised Explanation and Justification for Final 

Rules on Candidate Solicitation at State, District, 

and Local Party Fundraising Events, 70 FR 37649. 

2003–05, and 2003–36 be incorporated 

into the Commission’s regulations? If a 

Federal candidate or officeholder does 

not comply with the ‘‘disclaimer’’

requirements set forth in Advisory 

Opinions 2003–03, 2003–05 and 2003–

36, does mere attendance at these 

fundraising events where non-Federal 

funds are being raised constitute a 

solicitation of non-Federal funds in and 

of itself? In the absence of any 

‘‘disclaimers,’’ would a ‘‘pure policy’’

speech delivered by a Federal 

officeholder or candidate at an event 

raising non-Federal funds be a 

solicitation if the Federal candidate or 

officeholder stands under a banner 

reading ‘‘Support the 2005 State 

Democratic ticket tonight’’? 

D. Examples of Solicitation 

The Commission recognizes that the 

proposed definition of ‘‘solicit,’’ like the 

current definition, may require the 

Commission to determine what 

constitutes solicitation on a case-by-case 

basis in enforcement matters or advisory 

opinion requests. In order to provide 

candidates and political party 

committees with additional guidance on 

how the proposed standard would be 

applied, the Commission is also 

considering whether to incorporate, 

either into the Explanation and 

Justification accompanying the final 

rule or into the regulation itself, two sets 

of examples—one of types of 

communications that would constitute 

solicitations, and one of types of 

communications that would not 

constitute solicitations. 

As indicated above, several 

Commission regulations concerning 

corporate and labor organization activity 

in 11 CFR part 114 use the terms 

‘‘solicit’’ and ‘‘solicitation’’ without 

defining them. See, e.g., 11 CFR 

114.5(g), 114.6, 114.7, and 114.8. 

However, several advisory opinions 

explain what would or would not 

constitute a solicitation of contributions 

to a corporation’s separate segregated 

fund (‘‘SSF’’). See, e.g., Advisory 

Opinions 2003–14, 2000–07, 1999–06, 

1991–03, 1988–02, 1983–38, 1982–65, 

and 1979–13. In those advisory 

opinions, the Commission generally 

concluded that the mere publication of 

the activities conducted by an SSF was 

not in and of itself a solicitation if the 

publication did not encourage the 

recipient of the message to support the 

SSF, or if the information conveyed in 

the message did not facilitate the 

making of contributions to the SSF. 

Drawing in part on these advisory 

opinions and the broader principles 

expressed in them, the Commission is 

considering whether to include the 

following as examples of types of 

communications that would constitute 

solicitations: 

1. Informing a person how to 

contribute to a candidate, committee, or 

organization. For example: 

• ‘‘Send all contributions to the 

following address:’’

• ‘‘I am not permitted to ask for 

contributions, but unsolicited 

contributions can be accepted at the 

following address:’’

2. Informing a person of who, or how 

many persons, have contributed to a 

candidate, political committee, or 

organization, along with a favorable 

description of the candidate, political 

committee, or organization, or the goals 

or purposes of the candidate, 

committee, or organization. 

3. Informing a person of a fundraising 

event and recommending that the 

person attend, even where a 

contribution or donation is not required 

for admission. 

4. Informing a person at a fundraising 

event,8 or at some other event sponsored 

by a candidate, political committee, or 

organization, that the person is able to 

contribute to that candidate, political 

committee, or organization or to some 

other candidate, political committee, or 

organization. For example: 

• ‘‘You are at the limit of what you 

can directly contribute to my campaign, 

but you can further help my campaign 

by assisting the State party.’’

5. A statement that those who 

contribute may incur some kind of 

benefit, however intangible. For 

example: 

• ‘‘I will not forget those who 

contribute at this crucial stage.’’

• ‘‘The Senator will be very pleased 

if we can count on you for $10,000.’’

6. Expressing to a person the need of 

the candidate, committee, or 

organization for funds or something of 

value. For example: 

• ‘‘It’s important for our State party to 

receive at least $100,000 from each of 

you in this election.’’

• ‘‘X is an effective State party 

organization; it needs to get as many 

$100,000 contributions as possible.’’

7. Stating that (or how) a candidate, 

committee, or organization will benefit 

from a contribution or donation. For 

example: 

• ‘‘The money we raise will allow us 

to communicate our strategy through 

Labor Day.’’

• ‘‘Your immediate commitment to 

this project would mean a great deal to 

the entire party and to me personally.’’

• ‘‘All contributions will help the 

party’s election prospects in 

November.’’

8. Expressing hope that the donor will 

continue to support the donee 

financially. For example: 

• ‘‘I appreciate all you’ve done in the 

past for our party in this State. Looking 

ahead, we face some tough elections. I’d 

be very happy if you could maintain the 

same level of commitment to (or support 

for) our State party this year.’’

9. A written communication that 

provides a method of making a 

contribution or donation regardless of 

the text of the communication. For 

example, providing an addressed 

envelope and a reply card allowing 

contributors to select the dollar amount 

of their contribution or donation to the 

candidate, political party committee or 

organization. 

The Commission is also considering 

whether to include the following as 

examples of types of communications 

that would not constitute 

‘‘solicitations:’’

1. Describing or praising the activities 

of a candidate, committee, or 

organization in and of itself. For 

example: 

• ‘‘Our Senator has done a great job 

for us this year. The policies she has 

vigorously promoted in the Senate have 

really helped the economy of this 

State.’’

2. Identifying the candidates a 

committee supported with past 

contributions it received, in and of 

itself. For example: 

• ‘‘Thanks to your contributions we 

have been able to support our President, 

Senator, and Representative during the 

past election cycle.’’

3. Expressing gratitude for 

contributions and donations without 

expressing hope that the donor will 

make subsequent contributions or 

donations. For example: 

• ‘‘Thank you for your support.’’

The Commission seeks comment on a 

number of issues related to the above 

examples. Should examples of what 

does or does not constitute a solicitation 

appear in the Explanation and 

Justification that would accompany the 

final rule containing a definition of ‘‘to 

solicit’’ or should they be incorporated 

into the rule itself? Would such a list of 

examples be helpful in providing 

guidance to candidates, political party 

committees, and other political 

organizations? 

The Commission also seeks comment 

on whether any of the above-listed 

examples should not be incorporated 

56604 Federal Register / Vol. 70, No. 187 / Wednesday, September 28, 2005 / Proposed Rules 

9See Shays District at 77. 

into either the Explanation and 

Justification or the rule. Are there other 

examples not included above, that 

should be incorporated into the 

Explanation and Justification or into the 

rule itself? With respect to the ninth 

example of communications that would 

constitute solicitations, should the rule 

or the Explanation and Justification 

specify that providing an addressed 

envelope and a reply card allowing 

contributors to select the dollar amount 

of their contribution or donation to the 

candidate, political party committee or 

organization is always a solicitation, 

regardless of the content of the written 

communication because it already 

constitutes facilitation of the making of 

a contribution under 11 CFR 

114.2(f)(2)(ii)? Should the rule or 

Explanation and Justification also 

specify that providing the address of a 

Web page that is specifically dedicated 

to facilitating the making of 

contributions or donations online, or a 

phone number that is specifically 

dedicated to facilitating the making of 

contributions or donations, would 

always constitute a solicitation? 

Regarding the third example of 

communications that would not 

constitute solicitations, comment is also 

sought on whether a slightly modified 

version of that example would also not 

be a solicitation: ‘‘Thank you for your 

continued/continuing support.’’ Should 

the following be included as an example 

of what is not a solicitation: ‘‘Thank you 

for your past support.’’

As explained above, some of the 

principles underlying the examples set 

out above are derived from advisory 

opinions addressing corporate 

solicitations for contributions to SSFs 

under 11 CFR part 114. The Court of 

Appeals concluded that the fact that 

these advisory opinions construed 

‘‘solicit’’ broadly as covering indirect 

requests ‘‘reinforces our sense that 

Congress anticipated a similarly broad 

construction of that term here [i.e., 

BCRA’s provisions regarding 

solicitation].’’ Shays Appeal at 106. 

However, the Court of Appeals also 

noted that ‘‘ ‘solicit’ could carry 

different meanings in different 

contexts.’’ Id. Thus, solicitations of 

contributions from employees to a 

corporate SSF can raise concerns about 

the voluntariness of the solicited 

contributions that may differ from 

situations covered by 11 CFR part 300, 

which generally do not raise such 

concerns. The Commission seeks 

comment on the general issue of 

whether there are differences between 

these two types of situations that would 

make it inappropriate to apply 

principles derived from situations 

involving corporate solicitations to 

other solicitations by candidates, 

political parties, their agents, or entities 

directly or indirectly established, 

financed, maintained, or controlled by 

them. Alternatively, are these two 

contexts sufficiently similar such that it 

would be appropriate to apply the same 

principles to both? 

E. 11 CFR Part 114—Corporate and 

Labor Organization Activity 

As indicated above, certain 

Commission regulations concerning 

corporate and labor-organization 

activity in 11 CFR part 114 use the 

terms ‘‘solicit’’ and ‘‘solicitation’’

without defining them. See, e.g., 11 CFR 

114.5(g), 114.6, 114.7, and 114.8; see 

also 11 CFR 104.7(b)(2). Should the 

Commission continue to leave the term 

‘‘to solicit’’ undefined in the regulations 

governing corporate and labororganization activity? In the alternative, 

should it incorporate the proposed 

definition of ‘‘to solicit’’ for the 

regulations regarding non-Federal funds 

in 11 CFR part 300 into the corporate 

and labor-organization regulations in 11 

CFR part 114? 

F. 11 CFR 110.20(a)(6)—Foreign 

Nationals 

The Commission notes that its 

regulations prohibiting contributions, 

donations, expenditures, independent 

expenditures, and disbursements by 

foreign nationals currently incorporate 

the definition of ‘‘to solicit’’ in the 

regulations regarding non-Federal 

funds. See 11 CFR 110.20(a)(6). The 

Commission proposes to continue to use 

the same definition of ‘‘to solicit’’ for 

both the regulations regarding nonFederal funds and the foreign national 

prohibitions, but also invites comments 

on whether there are reasons for 

providing two different, independent 

definitions of the term. 

III. 11 CFR 300.2(n)—Definition of ‘‘To 

Direct’’

The Commission proposes to revise 

11 CFR 300.2(n) by defining ‘‘to direct’’

as ‘‘to guide a person who has expressed 

an intent to make a contribution, 

donation, transfer of funds, or otherwise 

provide anything of value, by 

identifying a candidate, political 

committee or organization, for the 

receipt of a contribution, donation, 

transfer of funds, or thing of value. The 

contribution, donation, transfer, or thing 

of value may be made or provided 

directly or through a conduit or 

intermediary.’’

As indicated above, although the 

Court of Appeals held that the 

Commission’s definition of ‘‘to direct’’

was invalid because it effectively 

defined ‘‘to direct’’ as ‘‘to ask’’ and thus, 

like the definition of ‘‘to solicit,’’

limited ‘‘to direct’’ to explicit requests 

for funds, the court did not provide 

guidance on how ‘‘to direct’’ should be 

defined. However, the District Court did 

provide such guidance. Specifically, the 

District Court observed that the term ‘‘to 

direct’’ has more than one meaning. It 

‘‘can mean ‘[t]o guide (something or 

someone),’ as in to inform someone of 

where he or she can make a donation. 

The word can also mean ‘[t]o instruct 

someone with authority,’ as in to order 

someone to make a donation.’’ Shays 

District at 76 (quoting Black’s Law 

Dictionary 471 (7th ed. 1999)). 

The Commission proposes to amend 

the definition of ‘‘to direct’’ to use the 

meaning, ‘‘to guide.’’ This meaning is 

consistent with BCRA’s statutory 

language, which states in relevant part 

that the national committee of a 

political party may not ‘‘direct to 

another person a contribution, donation, 

or transfer of funds or anything of 

value.’’ 2 U.S.C. 441i(a)(1) (emphasis 

added). See also 2 U.S.C. 441i(d) (‘‘A 

national, State, district, or local 

committee of a political party * * * 

shall not solicit any funds * * * or 

direct any donations to an entity 

* * *.’’) (emphasis added). The 

preposition ‘‘to’’ following the term ‘‘to 

direct’’ in these statutory provisions 

would appear to indicate that Congress 

intended the use of ‘‘to direct’’ in BCRA 

to mean ‘‘to guide.’’ The Commission 

seeks comment on whether this is a 

correct interpretation of the statute. 

Moreover, the second meaning of ‘‘to 

direct’’ as ‘‘to instruct with authority’’

would appear to be a form of asking, 

suggesting, or recommending—the 

terms proposed rule 300.2(m) uses to 

define ‘‘to solicit.’’ In other words, the 

definition of ‘‘to solicit’’ proposed in 

this NPRM already covers all forms of 

asking, suggesting, or recommending, 

regardless of whether they are backed by 

authority. Accordingly, to the extent 

that ‘‘instructing someone with 

authority’’ to make a contribution or 

donation is reasonably understood to be 

asking, suggesting, or recommending 

someone to make such a contribution or 

donation, it is already encompassed by 

the definition of ‘‘to solicit’’ proposed in 

this NPRM. Thus, defining ‘‘to direct’’

as to ‘‘instruct someone with authority’’

would appear to deprive the term of a 

meaningful role in the regulation by 

subsuming it under the meaning of ‘‘to 

solicit.’’ 9

Federal Register / Vol. 70, No. 187 / Wednesday, September 28, 2005 / Proposed Rules 56605 

By making clear that ‘‘to direct’’

applies to different actions, the 

proposed revision is responsive to the 

holding in Shays District that the 

current definition of ‘‘to direct’’ is 

subsumed under the current definition 

of ‘‘to solicit,’’ and is therefore 

redundant. Specifically, under the 

proposed rule, ‘‘to direct’’ would 

encompass situations where a person 

has already expressed an intent to make 

a contribution or donation that would 

advance a particular interest, but lacks 

the identity of an appropriate candidate 

or organization to which to make that 

contribution or donation. The act of 

direction would consist of providing the 

contributor with the identity of an 

appropriate recipient for the 

contribution or donation. These actions 

are not covered by the term ‘‘to solicit’’

because soliciting, under both the 

current and the proposed definition, is 

an attempt to motivate a person to 

contribute or donate, but would not 

apply to a person who merely provides 

information about possible recipients to 

another person who has already 

expressed intent to contribute or donate. 

The proposed definition of ‘‘to direct’’

depends upon ‘‘identification’’ of a 

candidate, political committee, or 

organization. Examples of such 

‘‘identification’’ would include 

providing the names of such candidates, 

political committees, or organizations, 

as well as providing any other 

sufficiently detailed contact information 

such as a Web or mail address, phone 

number, or the name or other contact 

information of a committee’s treasurer, 

campaign manager, or finance director. 

The Commission notes that the 

proposed rule at 11 CFR 300.2(n) would 

retain the statement, included in the 

current rule, that merely providing 

information or guidance on the 

requirements of particular law is not 

direction. 

The Commission invites comments on 

the proposed definition of ‘‘direct.’’ Is 

the definition too broad or too narrow? 

Would the proposed revision reduce the 

opportunities for circumvention of the 

Act or actual or apparent corruption? 

Does it provide sufficient guidance to 

candidates and political party 

committees? Would it affect the exercise 

of political activity, and if so, how? 

The Commission also seeks comment 

on whether providing a person who has 

expressed intent to contribute or donate 

with a long list of candidates, political 

committees, or organizations constitutes 

direction. Specifically, is there a point 

at which a list might identify so many 

candidates, political committees, or 

organizations from which the person 

may choose that the list would no 

longer constitute ‘‘direction?’

Alternatively, understanding that ‘‘to 

direct’’ means ‘‘to guide,’’ the 

Commission is also considering whether 

to leave the term undefined for purposes 

of 11 CFR part 300, allowing the 

meaning of ‘‘to direct’’ to develop 

further through the advisory opinion 

and enforcement processes. The 

Commission seeks comment on this 

alternative proposal. As long as it is 

made clear that ‘‘to direct’’ means ‘‘to 

guide,’’ is the term ‘‘to direct’’

sufficiently clear to candidates, their 

authorized committees, and political 

party committees such that a definition 

by regulation is unnecessary? 

The Commission notes that the words 

‘‘directed’’ and ‘‘direction’’ appear in 

the Commission’s earmarking rules 

regarding contributions directed 

through a conduit or intermediary under 

2 U.S.C. 441a(a)(8). See 11 CFR 110.6(a), 

(d). Neither the Act nor the 

Commission’s regulations implementing 

the earmarking rules defines the words 

‘‘directed’’ and ‘‘direction’’ as they are 

used in these provisions. However, the 

Explanation and Justification for 11 CFR 

110.6 states that in determining whether 

a person has direction or control, ‘‘the 

Commission has considered such factors 

as whether the conduit or intermediary 

controlled the amount and timing of the 

contribution, and whether the conduit 

selected the intended recipient.’’ Final 

Rules for Affiliated Committees, 

Transfers, Prohibited Contributions, 

Annual Contribution Limitations and 

Earmarked Contributions, 54 FR 34098, 

34108 (August 17, 1989). Thus, the 

word ‘‘direction’’ in the earmarking 

rules means ‘‘instructing with 

authority.’’ For the reasons explained 

above, this meaning for ‘‘to direct’’

would seem to be subsumed under the 

definition of ‘‘to solicit.’’ Nevertheless, 

the Commission seeks comment on 

whether the term ‘‘to direct’’ in BCRA 

should be interpreted to parallel the 

earmarking rules regarding 

contributions directed through a 

conduit or intermediary. The word 

‘‘direction’’ in the Commission’s 

earmarking rules has been applied, for 

example, in Advisory Opinions 2003–

23, 1991–29, 1986–4, 1980–46, and 

1975–10 and MURs 1028 and 2314. Do 

these precedents provide a sufficient 

frame of reference that renders 

unnecessary a definition for purposes of 

11 CFR part 300? 

Certification of No Effect Pursuant to 5 

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

Act] 

The Commission certifies that the 

attached proposed rules if promulgated 

would not have a significant economic 

impact on a substantial number of small 

entities. The basis for this certification 

is that the organizations affected by 

these rules are the national, State, 

district, and local party committees of 

the two major political parties and other 

political committees, which are not 

small entities under 5 U.S.C. 601 

because they are not small businesses, 

small organizations, or small 

governmental jurisdictions. National, 

State, district, and local party 

committees and any other political 

committees affected by these proposed 

rules are not-for-profit committees that 

do not meet the definition of ‘‘small 

organization,’’ which requires that the 

enterprise be independently owned and 

operated and not dominant in its field. 

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 National 

and State political party committees 

representing the Democratic and 

Republican parties have a major 

controlling influence within the 

political arena of their State 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. 

Most other political committees 

affected by these rules are not-for-profit 

committees that do not meet the 

definition of ‘‘small organization.’’ Most 

political committees are not 

independently owned and operated 

because they are not financed by a small 

identifiable group of individuals. Most 

political committees rely on 

contributions from a large number of 

individuals to fund the committees’

operations and activities. 

To the extent that any State party 

committees representing minor political 

parties or any other political committees 

might be considered ‘‘small 

organizations,’’ the number affected by 

this rule is not substantial. 

Finally, candidates and other 

individuals operating under these rules 

are not small entities. 

List of Subjects in 11 CFR Part 300 

Campaign funds, Nonprofit 

organizations, Political candidates, 

Political committees and parties, 

Reporting and recordkeeping 

requirements. 

For the reasons set out in the 

preamble, the Federal Election 

Commission proposes to amend 

Subchapter C of Chapter I of Title 11 of 

56606 Federal Register / Vol. 70, No. 187 / Wednesday, September 28, 2005 / Proposed Rules 

the Code of Federal Regulations as 

follows: 

PART 300—NON-FEDERAL FUNDS 

1. The authority citation for part 300 

would continue to read as follows: 

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

441a(a), 441i, 453. 

2. Section 300.2 would be amended 

by revising paragraphs (m) and (n) to 

read as follows: 

§ 300.2 Definitions. 

* * * * * 

(m) To Solicit. For the purposes of 

part 300, to solicit means to ask, suggest, 

or recommend that another person make 

a contribution, donation, transfer of 

funds, or otherwise provide anything of 

value, whether it is to be made or 

provided directly or through a conduit 

or intermediary. A solicitation is a 

written or oral communication, whether 

explicit or implicit, construed as a 

reasonable person would understand it 

in context. A solicitation does not 

include merely providing information or 

guidance as to the requirement of 

particular law. 

(n) To Direct. For the purposes of part 

300, to direct means to guide a person 

who has expressed an intent to make a 

contribution, donation, transfer of 

funds, or otherwise provide anything of 

value, by identifying a candidate, 

political committee or organization, for 

the receipt of a contribution, donation, 

transfer of funds, or thing of value. The 

contribution, donation, transfer, or thing 

of value may be made or provided 

directly or through a conduit or 

intermediary. Direction does not 

include merely providing information or 

guidance as to the requirement of 

particular law. 

* * * * * 

Dated: September 22, 2005. 

Scott E. Thomas, 

Chairman, Federal Election Commission. 

[FR Doc. 05–19330 Filed 9–27–05; 8:45 am] 

BILLING CODE 6715–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 71 

[Docket No. FAA–2005–21694; Airspace 

Docket No. 04–ASO–16] 

RIN 2120–AA66 

Proposed Establishment of Area 

Navigation Instrument Flight Rules 

Terminal Transition Routes (RITTR); 

Jacksonville, FL 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM); Reopening of the comment 

period. 

SUMMARY: This action proposes to 

establish seven Area Navigation 

Instrument Flight Rules Terminal 

Transition Routes (RITTR) in the 

Jacksonville, FL, terminal area. RITTRs 

are low altitude Air Traffic Service 

routes, based on Area Navigation 

(RNAV), for use by aircraft having 

instrument flight rules (IFR)-approved 

Global Positioning System (GPS)/Global 

Navigation Satellite System (GNSS) 

equipment. The purpose of RITTR is to 

expedite the handling of IFR overflight 

aircraft through busy terminal airspace 

areas. The FAA is proposing this action 

to enhance the safe and efficient use of 

the navigable airspace in the 

Jacksonville, FL, terminal area. This 

proposed rulemaking action was 

originally published in the Federal 

Register on July 1, 2005 (70 FR 38053). 

On that date, the proposal was listed in 

the table of contents under Proposed 

Rules, ‘‘Class E airspace,’’ rather than 

‘‘Area navigation routes.’’ Following the 

close of the comment period, the FAA 

was contacted by an aviation 

organization stating that they had not 

seen the NPRM for this action and 

desired to submit comments. It was 

determined that no comments had been 

received during the comment period. 

Therefore, the FAA has decided to 

reopen the comment period for 30 days 

to provide an additional opportunity for 

any similarly affected parties to submit 

comments. 

DATES: Comments must be received on 

or before October 28, 2005. 

ADDRESSES: Send comments on this 

proposal to the Docket Management 

System, U.S. Department of 

Transportation, Room Plaza 401, 400 

Seventh Street, SW., Washington, DC 

20590–0001. You must identify FAA 

Docket No. FAA–2005–21694 and 

Airspace Docket No. 04–ASO–16, at the 

beginning of your comments. You may 

also submit comments through the 

Internet at http://dms.dot.gov. 

FOR FURTHER INFORMATION CONTACT: Paul 

Gallant, Airspace and Rules, Office of 

System Operations Airspace and AIM, 

Federal Aviation Administration, 800 

Independence Avenue, SW., 

Washington, DC 20591; telephone: (202) 

267–8783. 

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 (FAA Docket No. FAA–

2005–21694 and Airspace Docket No. 

04–ASO–16) and be submitted in 

triplicate to the Docket Management 

System (see ADDRESSES section for 

address and phone number). You may 

also submit comments through the 

Internet at http://dms.dot.gov. 

Commenters wishing the FAA to 

acknowledge receipt of their comments 

on this action must submit with those 

comments a self-addressed, stamped 

postcard on which the following 

statement is made: ‘‘Comments to FAA 

Docket No. FAA–2005–21694 and 

Airspace Docket No. 04–ASO–16.’’ The 

postcard will be date/time stamped and 

returned to the commenter. 

All communications received on or 

before the specified closing date for 

comments will be considered before 

taking action on the proposed rule. The 

proposal contained in this action may 

be changed in light of comments 

received. All comments submitted will 

be available for examination in the 

public docket both before and after the 

closing date for comments. A report 

summarizing each substantive public 

contact with FAA personnel concerned 

with this rulemaking will be filed in the 

docket. 

Availability of NPRM’s 

An electronic copy of this document 

may be downloaded through the 

Internet at http://dms.dot.gov. Recently 

published rulemaking documents can 

also be accessed through the FAA’s web 

page at http://www.faa.gov, or the 

Federal Register’s web page at http:// 

www.gpoaccess.gov/fr/index.html.