Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 / Rules and Regulations 55257 

not exempt from the provisions of the 

order as provided for in § 1250.348 

thereof, shall be entitled to only one 

vote in the referendum. 

(b) Proxy voting is not authorized, but 

an officer or employee of a corporate 

producer, or an administrator, executor, 

or trustee of a producing estate, or an 

authorized representative of any other 

entity may cast a ballot on behalf of 

such producer or estate. Any individual 

so voting in a referendum shall certify 

that such individual is an officer or 

employee of the corporate producer, or 

an administrator, executor, or trustee of 

the producing estate, or an authorized 

representative of such other entity, and 

that such individual has the authority to 

take such action. Upon request of the 

referendum agent, the individual shall 

submit adequate evidence of his 

authority. 

(c) Each producer shall be entitled to 

cast only one ballot in the referendum. 

§ 1250.203 Instructions. 

The referendum agent shall conduct 

the referendum, in the manner herein 

provided, under supervision of the 

Administrator. The Administrator may 

prescribe additional instructions, not 

inconsistent with the provisions hereof, 

to govern the procedure to be followed 

by the referendum agent. Such agent 

shall: 

(a) Determine the time of 

commencement and termination of the 

period of the referendum, and the time 

when all ballots must be received by the 

referendum agent. 

(b) Determine whether ballots may be 

cast by mail, at polling places, at 

meetings of producers, or by any 

combination of the foregoing. 

(c) Provide ballots and related 

material to be used in the referendum. 

Ballot material shall provide for 

recording essential information for 

ascertaining whether the person voting 

or on whose behalf the vote is cast, is 

an eligible voter, and the total volume 

of commercial eggs produced during a 

representative period. 

(d) Give reasonable advance notice of 

the referendum: 

(1) By utilizing available media or 

public information sources, without 

incurring advertising expense, to 

publicize the dates, places, method of 

voting, eligibility requirements, and 

other pertinent information. Such 

sources of publicity may include, but 

are not limited to, print and radio; and 

(2) By such other means as the agent 

may deem advisable. 

(e) Make available to producers 

instructions on voting, appropriate 

registration, ballot, and certification 

forms, and, except in the case of a 

referendum on the termination or 

continuance of an order, a summary of 

the terms and conditions of the order: 

Provided, that no person who claims to 

be qualified to vote shall be refused a 

ballot. 

(f) If the ballots are to be cast by mail, 

cause all the material specified in 

paragraph (e) of this section to be 

mailed to each eligible producer whose 

name and address are known to the 

Secretary or the referendum agent. 

(g) If the ballots are to be cast at 

polling places or meetings, determine 

the necessary number of polling or 

meeting places, designate them, 

announce the time of each meeting or 

the hours during which each polling 

place will be open, provide the material 

specified in paragraph (e) of this 

section, and provide for appropriate 

custody of ballot forms and delivery to 

the referendum agent of ballots cast. 

(h) At the conclusion of the 

referendum, canvass the ballots, 

tabulate the results, and except as 

otherwise directed, report the outcome 

to the Administrator and promptly 

thereafter submit the following: 

(1) All ballots received by the agent 

and appointees, together with a 

certificate to the effect that the ballots 

listed are all of the ballots cast and 

received by the agent and appointees 

during the referendum period; 

(2) A tabulation of all challenged 

ballots deemed to be invalid; and 

(3) A report of the referendum 

including a detailed statement 

explaining the method used in giving 

publicity to the referendum and 

showing other information pertinent to 

the manner in which the referendum 

was conducted. 

§ 1250.204 Subagents. 

The referendum agent may appoint 

any person or persons deemed 

necessary or desirable to assist the agent 

in performing such agent’s functions of 

this subpart. Each individual so 

appointed may be authorized by the 

agent to perform, in accordance with the 

requirements herein set forth, any or all 

of the following functions (which, in the 

absence of such appointment, shall be 

performed by said agent): 

(a) Give public notice of the 

referendum in the manner specified 

herein; 

(b) Preside at a meeting where ballots 

are to be cast or as poll officer at a 

polling place; 

(c) See the ballots and the aforesaid 

texts are distributed to producers and 

receive any ballots which are cast; and 

(d) Record the name and address of 

each person casting a ballot with said 

subagent and inquire, as deemed 

appropriate, into the eligibility of such 

persons to vote in the referendum. 

§ 1250.205 Ballots. 

The referendum agent and subagents 

shall accept all ballots cast; but should 

they, or any of them, deem that a ballot 

should be challenged for any reason, the 

agent or subagent shall endorse above 

their signature, on the ballot, a 

statement to the effect that such ballot 

was challenged, by whom challenged, 

the reasons therefore, and the results of 

any investigations made with respect 

thereto, and the disposition thereof. 

Invalid ballots shall not be counted. 

§ 1250.206 Referendum report. 

Except as otherwise directed, the 

Administrator shall prepare and submit 

to the Secretary a report on the results 

of the referendum, the manner in which 

it was conducted, the extent and kind of 

public notice given, and other 

information pertinent to analysis of the 

referendum and its results. 

§ 1250.207 Confidential information. 

The ballots cast or the manner in 

which any person voted and all 

information furnished to, compiled by, 

or in the possession of the referendum 

agent shall be regarded as confidential. 

The ballots and other information or 

reports that reveal, or tend to reveal, the 

vote of any person covered under the 

Order and the voter list shall be strictly 

confidential and shall not be disclosed. 

Dated: September 3, 2010. 

David R. Shipman, 

Acting Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2010–22644 Filed 9–9–10; 8:45 am] 

BILLING CODE 3410–02–P 

FEDERAL ELECTION COMMISSION 

11 CFR Part 100 

[Notice 2010–18] 

Definition of Federal Election Activity 

AGENCY: Federal Election Commission. 

ACTION: Final rules. 

SUMMARY: The Federal Election 

Commission is revising its rules as to 

the activities that constitute ‘‘Federal 

election activity’’ under the Federal 

Election Campaign Act of 1971, as 

amended. Specifically, these final rules 

modify the definitions of ‘‘voter 

registration activity’’ and ‘‘get-out-thevote activity,’’ in response to the 

decision of the U.S. Court of Appeals for 

the District of Columbia Circuit in Shays 

v. FEC. 

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55258 Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 / Rules and Regulations 

1Public Law 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 and 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. 

5Commission regulations define ‘‘in connection 

with an election in which a candidate for Federal 

office appears on the ballot’’ at 11 CFR 100.24(a)(1). 

DATES: These rules are effective on 

December 1, 2010. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy L. Rothstein, Assistant General 

Counsel, or Attorney Mr. David C. 

Adkins or Attorney 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 Federal Election Commission 

(‘‘Commission’’) is revising its 

regulations at 11 CFR 100.24 regarding 

‘‘Federal election activity,’’ including the 

definitions of the terms ‘‘voter 

registration activity’’ and ‘‘get-out-thevote activity’’ (‘‘GOTV activity’’). The 

Court of Appeals for the District of 

Columbia Circuit found aspects of these 

rules invalid in Shays v. Federal 

Election Commission, 528 F.3d 914 (DC 

Cir. 2008) (‘‘Shays III’’). Accordingly, the 

Commission is revising its rules at 11 

CFR 100.24 to comply with the Shays III 

decision. 

Transmission of Final Rules to 

Congress 

Under the Administrative Procedure 

Act, 5 U.S.C. 553(d), and the 

Congressional Review of Agency 

Rulemaking Act, 5 U.S.C. 801(a)(1), 

agencies must submit final rules to the 

Speaker of the House of Representatives 

and the President of the Senate and 

publish them in the Federal Register at 

least thirty calendar days before they 

take effect. The final rules that follow 

were transmitted to Congress on 

September 7, 2010. 

Explanation and Justification 

I. Background Information 

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 

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,’’ a 

phrase that is defined in terms of a 

specific time window.5 2 U.S.C. 

431(20)(A)(ii) and 11 CFR 100.24(a)(1). 

In BCRA, Congress chose to restrict 

the funds which State, district, and local 

party committees could use for Federal 

election activity because it determined 

that these activities affect 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. 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 does 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 

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Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 / Rules and Regulations 55259 

6The Commission did change other aspects of the 

GOTV activity definition in response to the Shays 

I 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. 

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’’). 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, 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, 337 F. 

Supp. 2d at 100. 

The court reached similar conclusions 

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

holding that the definition, which 

required actual assistance, was neither 

inconsistent with congressional intent 

nor an impermissible construction of 

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,’’ though, 

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. 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. 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 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.’’ 6 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). 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. 

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55260 Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 / Rules and Regulations 

7The 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. 

Shays v. FEC, 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 GOTV activity.7 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 v. FEC, 528 F.3d 

914, 931 (DC Cir. 2008). 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 Shays III, 528 F.3d 

at 931. 

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—finding the 

Commission could craft definitions that 

exclude routine 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. 

In response to the court of appeal’s 

decision, the Commission published a 

Notice of Proposed Rulemaking on 

October 20, 2009. See Notice of 

Proposed Rulemaking on the Definition 

of Federal Election Activity, 74 FR 

53674 (Oct. 20, 2009) (‘‘NPRM’’). The 

NPRM proposed possible modifications 

to the definitions of ‘‘voter registration 

activity’’ and ‘‘GOTV activity,’’ as well as 

a modification to the ‘‘exceptions’’ 

paragraph of the definition of ‘‘Federal 

election activity.’’ The public comment 

period for the NPRM closed on 

November 20, 2009. The Commission 

received written comments from 14 

commenters, including a comment from 

the Internal Revenue Service indicating 

that the proposed rules did not appear 

to present a conflict with the Internal 

Revenue Code or the regulations 

thereunder. The Commission held a 

public hearing on December 16, 2009, at 

which seven witnesses testified. After 

the hearing, the Commission accepted 

four supplemental comments expanding 

on issues raised during the hearing. All 

comments and a public transcript of the 

hearing are available at http:// 

www.fec.gov/law/ 

law_rulemakings.shtml#FEAShays3. For 

purposes of this document, the terms 

‘‘comment’’ and ‘‘commenter’’ apply to 

both written comments and oral 

testimony at the public hearing. 

These final rules define ‘‘voter 

registration activity’’ and ‘‘GOTV 

activity’’ for purposes of the 

Commission’s Federal election activity 

regulations. These new definitions cover 

activities that urge, encourage, or assist 

potential voters to register to vote or to 

vote, regardless of whether the message 

is delivered individually or to a group 

of people via mass communication. 

Brief, incidental exhortations to register 

to vote or to vote are, however, exempt 

from the new definitions. Activities 

meeting these definitions must be paid 

for with Federal funds or with a mix of 

Federal and Levin funds, as appropriate. 

In addition, these final rules clarify that 

GOTV activity and voter identification 

conducted solely in connection with a 

non-Federal election are not subject to 

the Commission’s Federal election 

activity funding restrictions, and 

provide that certain de minimis 

activities are not subject to the Federal 

election activity funding restrictions. 

II. Final Rules 

A. 11 CFR 100.24(a)(2)—Definition of 

‘‘Voter Registration Activity’’ 

To comply with the Court of Appeals’ 

decision in Shays III, the Commission is 

revising the definition of ‘‘voter 

registration activity’’ at 11 CFR 

100.24(a)(2). The Commission’s new 

definition covers activities that assist, 

encourage, or urge potential voters to 

register to vote. The definition 

continues to cover contacting potential 

voters by individualized means but, as 

revised, it now also covers contacts 

directed to potential voters by any 

means to urge or encourage them to 

register to vote. As explained further 

below, the new definition excludes 

brief, incidental exhortations to register 

to vote, consistent with the court’s 

decision. 

1. 11 CFR 100.24(a)(2)(i)—Covered 

Activities 

New paragraph (a)(2)(i) of 11 CFR 

100.24 lists the activities that constitute 

voter registration activity. The new 

definition identifies the following 

activities as voter registration activity: 

• Encouraging or urging potential 

voters to register to vote by mail 

(including direct mail), e-mail, in 

person, by telephone (including prerecorded telephone calls, phone banks, 

and messaging such as SMS and MMS), 

or by any other means (11 CFR 

100.24(a)(2)(i)(A)); 

• Preparing and distributing 

information about registration and 

voting (11 CFR 100.24(a)(2)(i)(B)); 

• Distributing voter registration forms 

or instructions to potential voters (11 

CFR 100.24(a)(2)(i)(C)); 

• Answering questions about how to 

complete or file a voter registration form 

(11 CFR 100.24(a)(2)(i)(D)); 

• Assisting potential voters in 

completing voter registration forms (11 

CFR 100.24(a)(2)(i)(D)); 

• Submitting or delivering completed 

voter registration forms (11 CFR 

100.24(a)(2)(i)(E)); 

• Offering or arranging to transport, 

or actually transporting, potential voters 

to a board of elections or county clerk’s 

office for them to fill out voter 

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Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 / Rules and Regulations 55261 

registration forms (11 CFR 

100.24(a)(2)(i)(F)); and 

• Any other activity that assists 

potential voters to register to vote (11 

CFR 100.24(a)(2)(i)(G)). 

Accordingly, the revised definition of 

‘‘voter registration activity’’ covers the 

following examples: (1) Sending a mass 

mailing of voter registration forms; and 

(2) submitting completed voter 

registration forms to the appropriate 

State or local office handling voter 

registration. 

The Commission received multiple 

comments on its proposal to expand the 

definition of voter registration activity 

to include encouraging potential voters 

to register to vote. Almost all the 

commenters agreed that expanding the 

definition in this manner would be 

responsive to the Shays III court. 

Commenters offered a range of opinions, 

though, on whether this expansion was 

required by the court’s decision or if 

there was a narrower approach that 

might satisfy the court. 

Two commenters stated that the 

Commission could not do ‘‘anything 

short of including encourage[ment]’’ in 

the definition and ‘‘still satisfy the 

concerns of the circuit court.’’ In 

contrast, others that commented on this 

issue argued that a definition of voter 

registration activity that included 

activities that only encourage people to 

register to vote (regardless of the means) 

was unnecessary. Some commenters 

asserted that such a definition would 

subject to regulation all of the activities 

of State and local party committees, 

contrary to the intent of Congress. 

Instead, the majority of commenters 

advocated for a narrower definition that 

would not apply to activities that, in 

their opinion, are not appropriately 

characterized as voter registration 

activity. Commenters suggested 

definitions covering only activities that 

actively encourage voter registration 

(which would be informed by a time/ 

space analysis), that were primarily 

aimed at increasing voter registration, or 

that facilitate voter registration. Another 

commenter proposed a definition that 

would cover only activities understood 

by a ‘‘reasonable person engaged in 

political campaign management’’ to be 

voter registration activity. Multiple 

commenters wanted the Commission to 

adopt a definition of voter registration 

activity that would exclude ‘‘persuasion 

communications,’’ which commenters 

characterized as communications that 

are intended to secure a vote for a 

specific candidate but that are not 

effective at mobilizing potential voters 

to register to vote. 

If any of these narrower approaches 

proved under-inclusive, one commenter 

suggested that the Commission could 

subsequently amend its regulations. 

This approach, according to the 

commenter, was preferable to adopting 

a broad definition at the outset covering 

all activities that encourage potential 

voters to register to vote. 

The Commission also received 

comments addressing its proposal to 

expand the definition of voter 

registration activity to include 

communications made by ‘‘any other 

means’’ that urge or encourage potential 

voters to register to vote. Two 

commenters thought that the court’s 

decision did not require the 

Commission to adopt a definition 

covering all mass communications, and 

that the definition could simply be 

amended to cover certain specific 

activities, including phone banks and 

direct mail. Another commenter argued 

that the Commission should exempt 

from the definition of voter registration 

activity all Internet communications, 

stating that such communications are 

made at ‘‘virtually no cost.’’ By contrast, 

one commenter asserted that the 

definition’s ‘‘any other means’’ standard 

was not ‘‘inclusive enough’’ and that the 

definition should list ‘‘the multiple 

methods of electronic communication 

used today.’’ 

As discussed above, the Shays III 

court identified ‘‘two distinct loopholes’’ 

in the Commission’s prior definitions of 

voter registration activity. See Shays III, 

528 F.3d at 931–32. The court 

determined that these ‘‘two distinct 

loopholes’’—which required that voter 

registration activity ‘‘assist’’ voters in 

registering to vote and that contacts 

with potential voters be 

‘‘individualized’’—conflicted with 

BCRA’s purpose. Id. at 932. Moreover, 

the Shays III court suggested that the 

Commission’s regulations should reach 

both efforts that ‘‘encourage people to 

vote or to register to vote’’ as well as 

‘‘mass communications’’ that are 

directed to a significant number of 

people. Id. at 931. The Commission 

concludes that the definition of voter 

registration activity adopted in this 

rulemaking best addresses the court’s 

concerns. 

For these reasons, the Commission 

has decided not to adopt any of the 

other proposals suggested by the 

commenters. Whatever the individual 

merits of these proposals, in the current 

rulemaking the Commission is charged 

with adopting a definition of voter 

registration activity that addresses the 

‘‘two distinct loopholes’’ identified by 

the Shays III court. Furthermore, many 

of the alternative proposals suggested by 

the commenters will not provide clear 

guidance to State and local party 

committees and could prove difficult for 

the Commission to administer and 

enforce. 

The Commission has reorganized the 

definition of voter registration activity 

in section 100.24 in light of comments 

received. Whereas the proposed rule 

would have set forth a general definition 

of ‘‘voter registration activity’’ with a 

non-exhaustive list of examples, the 

new rule defines ‘‘voter registration 

activity’’ by providing a comprehensive 

list of covered activities. 

Notwithstanding this change in form, 

the new definition covers the same 

universe of activities as the definition 

proposed in the NPRM. 

This change is responsive to 

commenters who indicated that the 

structure of the proposed definition was 

‘‘confusing’’ and unhelpful. The 

Commission has concluded that the new 

definition, which lists both specific and 

general activities, provides clear and 

effective guidance while capturing those 

activities that Congress and the courts 

identified as being ‘‘voter registration 

activity.’’ 

2. 11 CFR 100.24(a)(2)(ii)—Brief, 

Incidental Exhortations 

New paragraph (a)(2)(ii) of 11 CFR 

100.24 states that an activity is not 

‘‘voter registration activity’’ solely 

because it includes a brief exhortation to 

register to vote, so long as the 

exhortation is incidental to a 

communication, activity, or event. This 

exception from the definition of ‘‘voter 

registration activity’’ ensures that 

activities that are not otherwise voter 

registration activity do not become voter 

registration activity simply because they 

include a brief, incidental reminder to 

register to vote. 

To qualify for the exception, the 

exhortation to register to vote must be 

both brief and incidental. Exhortations 

to register to vote that go on for many 

minutes of a speech, for example, or that 

occupy a large amount of space in a 

mailer are not brief and will not qualify 

for the exception. Similarly, 

exhortations, however brief, must also 

be incidental to the communication, 

activity or event. For example, a oneline exhortation to ‘‘Register to vote!’’ 

appearing at the end of a campaign flier 

would be incidental to the larger 

communication, whereas a 

communication stating only ‘‘Register to 

Vote by October 1st!’’ and containing no 

other text would not be incidental and, 

thus, would not come within the 

exception from the definition of ‘‘voter 

registration activity.’’ 

The exception applies to brief, 

incidental exhortations regardless of the 

forum or medium in which they are 

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55262 Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 / Rules and Regulations 

made. The exception covers an 

exhortation offered in a speech at a 

rally, for example, as well as one 

appearing in an e-mail. 

Two examples of activities that would 

be covered under the exception appear 

at new paragraphs (a)(2)(ii)(A) and 

(a)(2)(ii)(B) of 11 CFR 100.24. The first 

example is a mailer praising the public 

service record of a mayoral candidate 

and/or discussing the candidate’s 

campaign platform. The mailer 

concludes by reminding recipients: 

‘‘Don’t forget to register to vote for [the 

mayoral candidate] by October 1st.’’ The 

second example involves a phone call 

for a State party committee fundraising 

event. The call provides recipients with 

information about the event, solicits 

donations, and concludes by reminding 

the listener: ‘‘Don’t forget to register to 

vote.’’ 

The new exception at 11 CFR 

100.24(a)(2)(ii) differs in certain respects 

from the one proposed in the NPRM. 

The proposed exception would have 

applied only to incidental exhortations 

made during speeches or events, 

whereas the exception in the final rule 

applies to brief, incidental exhortations 

made in any communication or during 

any activity or event. Moreover, the 

proposed exception did not explicitly 

require that the exhortation be brief, 

although a brevity requirement was 

implicit in the proposal. Finally, the 

proposed exception included four 

examples of exhortations that would 

have qualified for the exception. The 

new exception includes only two 

examples, but they are more detailed 

than in the NPRM and, thus, provide 

better guidance regarding the intended 

application of the exception. 

Several of the comments received on 

the exhortation exception were simply 

an extension of the comments on the 

scope and organization of the proposed 

definition of ‘‘voter registration activity’’ 

itself. One commenter, for example, 

indicated that the exception did not 

sufficiently narrow the definition of 

‘‘voter registration activity’’ and would 

not appropriately protect ‘‘persuasion 

communications.’’ Another commenter 

urged the Commission not to adopt the 

exhortation exception and, instead, 

simply to define voter registration 

activity as covering only activities that 

facilitate voter registration. 

Other comments focused on the scope 

of the proposed exception. Specifically, 

commenters addressed whether the 

exception should be limited, as it was 

in the NPRM, to exhortations made 

during speeches and events, or whether 

it should also cover exhortations made 

in other contexts. Two commenters 

supported adopting the proposed 

exception, pointing out that the court’s 

opinion specifically referenced only 

‘‘routine or spontaneous speech-ending 

exhortations.’’ Several commenters, 

though, believed that there was no 

reason to limit the exception by the 

medium in which the communication 

was delivered or the forum in which it 

was made. One of these commenters 

stated that ‘‘[n]othing in the court’s 

decisions [could] reasonably be read to 

mean that exhortations are to be 

excluded only if made in a speech or at 

a rally but not if made by other means 

of communications.’’ Another 

commenter pointed out that limiting the 

exception in this way would render it 

functionally meaningless, because 

parties rarely rely on speakers at rallies 

to encourage people to register to vote. 

Two commenters discussed the 

proposed requirement in the NPRM 

that, to qualify for the exception, an 

exhortation be incidental to a speech or 

event. One commenter suggested that 

the Commission determine whether an 

exhortation is, in fact, incidental by 

engaging in a time/space analysis. 

Another commenter urged that the 

exhortation exception be further limited 

to only spontaneous communications 

and not cover communications that are 

scripted. 

The Commission has considered the 

comments and has decided to adopt a 

somewhat broader exception than 

initially proposed. While the Shays III 

court required the Commission to adopt 

a more expansive definition of ‘‘voter 

registration activity,’’ the court 

acknowledged that the Commission 

could exclude from the definition 

‘‘routine or spontaneous speech-ending 

exhortations’’ and ‘‘mere exhortations 

* * * made at the end of a political 

event or speech.’’ Shays III, 528 F.3d at 

932. 

The Commission agrees with those 

commenters who indicated that the 

exception should not be limited by 

medium or forum. To limit the 

exemption to exhortations made only at 

speeches or rallies would elevate form 

over substance and is not necessary to 

give effect to the court’s opinion. The 

court did not require the Commission to 

create artificial distinctions between an 

incidental exhortation during a speech 

or rally and an incidental exhortation 

made in a written communication or 

telephone call conveying the same 

message. 

This exception will not inoculate 

speeches or events that otherwise would 

meet the new definition of ‘‘voter 

registration activity.’’ For example, a 

speech given sixty days before an 

election that devotes several minutes to 

providing listeners with information on 

how to register to vote would not 

qualify under the exception at new 11 

CFR 100.24(a)(2)(ii). Instead, the 

exception is intended to ensure that 

communications that would not 

otherwise be voter registration activity 

do not become voter registration activity 

merely because they include a brief, 

incidental exhortation encouraging 

listeners to register to vote. 

B. 11 CFR 100.24(a)(3)—Definition of 

‘‘GOTV Activity’’ 

To comply with the Court of Appeals’ 

decision in Shays III, the Commission is 

revising the definition of ‘‘GOTV 

activity’’ at 11 CFR 100.24(a)(3). The 

Commission’s revised definition covers 

activities that assist, encourage, or urge 

potential voters to vote. The definition 

continues to cover contacting potential 

voters by individualized means but, as 

revised, it now also covers contacting 

potential voters by any means to urge or 

encourage them to vote. As explained 

further below, the new definition 

excludes brief, incidental exhortations 

to vote, consistent with the court’s 

decision. 

1. 11 CFR 100.24(a)(3)(i)—Covered 

Activities 

Revised paragraph (a)(3)(i) of 11 CFR 

100.24 lists the activities that are GOTV 

activity. The revised definition 

identifies the following activities as 

GOTV activity: 

• Encouraging or urging potential 

voters to vote (11 CFR 

100.24(a)(3)(i)(A)); 

• Informing potential voters about 

times when polling places are open (11 

CFR 100.24(a)(3)(i)(B)(1)), the location 

of polling places (11 CFR 

100.24(a)(3)(i)(B)(2)), or early voting or 

voting by absentee ballot (11 CFR 

100.24(a)(3)(i)(B)(3); 

• Offering or arranging to transport 

voters to the polls, as well as actually 

transporting voters to the polls, is also 

GOTV activity (11 CFR 

100.24(a)(3)(i)(C)); and 

• All activities that assist potential 

voters to vote are GOTV activity (11 CFR 

100.24(a)(3)(i)(D)). 

These activities fall within the 

definition regardless of the means by 

which information is conveyed. 

Accordingly, the revised definition of 

‘‘GOTV activity’’ would cover the 

following examples: (1) Driving a sound 

truck through a neighborhood that plays 

a message urging listeners to ‘‘Vote next 

Tuesday at the Main Street community 

center’’; and (2) making telephone calls 

(including robocalls) reminding the 

recipient of the times during which the 

polls are open on election day. 

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Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 / Rules and Regulations 55263 

The Commission received multiple 

comments on its proposal to expand the 

definition of GOTV activity to include 

encouraging potential voters to vote. 

Many of those comments addressed 

together the proposed expansions of the 

definitions of ‘‘voter registration 

activity’’ and ‘‘GOTV activity.’’ Those 

comments were discussed and 

addressed in the preceding section and 

are only briefly mentioned here. Other 

comments, though, focused on the 

proposed expansion of the definition of 

‘‘GOTV activity’’ and are discussed 

below. 

Almost all the commenters agreed 

that revising the definition of ‘‘GOTV 

activity’’ to include encouraging and 

urging potential voters to vote would be 

responsive to the Shays III court. 

Commenters offered a range of opinions, 

though, on whether this expansion was 

required by the court’s decision or if 

there was a narrower approach that 

might satisfy the court. 

Two commenters asserted that the 

Commission could not do ‘‘anything 

short of including encourage[ment]’’ in 

the definition and ‘‘still satisfy the 

concerns of the circuit court.’’ Others 

that commented on this issue, by 

contrast, believed that a definition of 

‘‘GOTV activity’’ that included activities 

that only encouraged people to vote 

(regardless of the means) is unnecessary. 

Some commenters were concerned that 

such a definition would subject to 

regulation all of the activities of State 

and local party committees, contrary to 

the intent of Congress. 

Several commenters were particularly 

concerned that the proposed definition 

of ‘‘GOTV activity’’ would cover all 

candidate advocacy conducted by State, 

district, and local party committees, 

including advocacy focused solely on 

State and local candidates that makes no 

mention of a Federal candidate. As with 

the definition of ‘‘voter registration 

activity,’’ commenters proposed 

narrowing the definition of ‘‘GOTV 

activity’’ to cover only activities that 

actively encourage or facilitate voting or 

that are primarily aimed at increasing 

voter turnout. Another commenter 

proposed a definition that would cover 

only activities understood by a 

‘‘reasonable person engaged in political 

campaign management’’ to be ‘‘GOTV 

activity.’’ 

Some commenters also offered more 

specific suggestions regarding the 

definition of ‘‘GOTV activity.’’ One 

commenter proposed defining ‘‘GOTV 

activity’’ as ‘‘activities directed toward 

encouraging voters who are identified as 

likely to support specific candidates to 

cast votes in an election in which 

federal candidates are on the ballot.’’ 

Several commenters stressed the need to 

adopt a definition of ‘‘GOTV activity’’ 

that would exclude ‘‘persuasion 

communications,’’ which the 

commenters characterized as 

communications that are intended to 

secure a vote for a specific candidate but 

that are not effective at mobilizing 

potential voters to vote. 

In the event that any of these 

narrower approaches proved underinclusive, one commenter suggested that 

the Commission could subsequently 

amend its regulations. This approach, 

according to the commenter, was 

preferable to adopting a broad definition 

at the outset covering all activities that 

encourage potential voters to vote. 

The Commission also received 

comments addressing its proposal to 

revise the definition of ‘‘GOTV activity’’ 

to include communications urging or 

encouraging potential voters to vote 

made by ‘‘any other means.’’ Two 

commenters thought that the court’s 

decision did not require the 

Commission to adopt a definition 

covering all mass communications, and 

that the definition could simply be 

amended to cover certain specific 

activities, including phone banks and 

direct mail. 

Another commenter thought that the 

Commission should exempt from the 

definition of ‘‘GOTV activity’’ all 

Internet communications, because such 

communications are made at ‘‘virtually 

no cost.’’ In contrast, a different 

commenter thought that the definition’s 

‘‘any other means’’ standard was not 

‘‘inclusive enough’’ and that the 

definition should list ‘‘the multiple 

methods of electronic communication 

used today.’’ 

As discussed above, the Shays III 

court identified ‘‘two distinct loopholes’’ 

in the Commission’s prior definitions of 

GOTV activity. See Shays III, 528 F.3d 

at 931–32. The court determined that 

these ‘‘loopholes’’—which required that 

GOTV activity ‘‘assist’’ voters in voting 

and that contacts with potential voters 

be ‘‘individualized’’—conflicted with 

BCRA’s purpose. Id. at 932. Moreover, 

the Shays III court suggested that the 

Commission’s regulations should reach 

both efforts that ‘‘encourage people to 

vote or to register to vote’’ as well as 

‘‘mass communications’’ that are 

directed to a significant number of 

people. Id. at 931. The Commission 

concludes that the definition of ‘‘GOTV 

activity’’ adopted in this rulemaking best 

addresses the court’s concerns. 

For these reasons, the Commission 

has decided not to adopt any of the 

other proposals suggested by the 

commenters. Whatever the individual 

merits of these proposals, in the current 

rulemaking the Commission is charged 

with adopting a definition of GOTV 

activity that addresses the ‘‘two distinct 

loopholes’’ identified by the Shays III 

court. Furthermore, many of the 

alternative proposals suggested by the 

commenters would prove difficult for 

the Commission to administer and 

enforce. Introducing qualifiers into the 

definition of ‘‘GOTV activity’’—like 

‘‘targeting,’’ ‘‘active encouragement,’’ or 

‘‘primarily aimed’’—may theoretically 

narrow the definition, but would require 

the Commission to make searching (and 

potentially burdensome) inquiries into 

the mechanics, decision-making, and 

intentions of State, district, and local 

party committees and associations of 

State or local candidates in order to 

enforce the law. In addition, such a 

vague definition would not provide 

clear guidance to State, district, and 

local party committees and associations 

of State or local candidates. 

The Commission has reorganized the 

definition of ‘‘GOTV activity’’ in section 

100.24 in light of comments received. 

Whereas the proposed rule would have 

set forth a general definition of ‘‘GOTV 

activity’’ with a non-exhaustive list of 

examples, the new rule defines ‘‘GOTV 

activity’’ by providing a comprehensive 

list of covered activities. 

Notwithstanding this change in form, 

the new definition covers the same 

universe of activities as the definition 

proposed in the NPRM. 

This organizational change is 

responsive to commenters who 

indicated that the structure of the 

proposed definition was ‘‘confusing’’ 

and unhelpful. The Commission has 

decided that the revised definition, 

which lists both specific and general 

activities, provides clear and effective 

guidance while capturing those 

activities that Congress and the courts 

identified as being GOTV activity. 

2. 11 CFR 100.24(a)(3)(ii)—Brief, 

Incidental Exhortations 

New paragraph (a)(3)(ii) of 11 CFR 

100.24 states that an activity is not 

GOTV activity solely because it includes 

a brief exhortation to register to vote, so 

long as the exhortation is incidental to 

a communication, activity, or event. 

Like the exception to the definition of 

‘‘voter registration activity,’’ this 

exception to the definition of ‘‘GOTV 

activity’’ ensures that activities that are 

not otherwise GOTV activity do not 

become GOTV activity simply because 

they include a brief, incidental reminder 

to vote. 

The exception operates identically to 

the exhortation exception to the 

definition of ‘‘voter registration activity.’’ 

To qualify for the exception, the 

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55264 Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 / Rules and Regulations 

exhortation to vote must be both brief 

and incidental. Exhortations to vote that 

consume many minutes of a speech, for 

example, or that occupy a large amount 

of space in a mailer are not brief and 

will not qualify for the exception. 

Similarly, exhortations, however brief, 

must also be incidental to a 

communication, activity, or event. For 

example, a one-word reminder to 

‘‘Vote!’’ appearing at the end of a mailer 

would be incidental to the larger 

communication, whereas a message in a 

mailer that stated only ‘‘Vote on Election 

Day!’’ or ‘‘Vote for Smith next Tuesday!’’ 

and contained no other text would not 

be incidental and, thus, would not be 

exempted from the definition of GOTV 

activity. 

The exception applies to brief, 

incidental exhortations regardless of the 

forum or medium in which they are 

made. The exception covers an 

exhortation made at the end of a speech 

at a rally, for example, as well as one 

appearing at the end of an e-mail. 

Two examples of activities that would 

be covered under the exception appear 

at new paragraphs (a)(3)(ii)(A) and 

(a)(3)(ii)(B) of 11 CFR 100.24. The first 

example is a mailer praising the public 

service record of a mayoral candidate 

and/or discussing the candidate’s 

campaign platform. The mailer 

concludes by reminding recipients: 

‘‘Vote [for the mayoral candidate] on 

November 4th.’’ The second example 

involves a phone call for a State party 

committee fundraising event. The call 

provides recipients with information 

about the event, solicits donations, and 

concludes by reminding the listener: 

‘‘Don’t forget to vote on November 4th.’’ 

The new exception at 11 CFR 

100.24(a)(3)(ii) differs in certain respects 

from the one proposed in the NPRM. 

The proposed exception would have 

applied only to incidental exhortations 

made during speeches or events, 

whereas the exception in the final rule 

applies to brief, incidental exhortations 

made in any communication or during 

any activity or event. Moreover, the 

proposed exception did not explicitly 

require that the exhortation be brief, 

although a brevity requirement was 

implicit in the proposal. Finally, the 

proposed exception included four 

examples of exhortations that would 

have qualified for the exception. The 

new exception includes only two 

examples, but they are more detailed 

than in the NPRM and, thus, provide 

better guidance regarding the intended 

application of the exception. 

Several of the comments received on 

the exhortation exception were simply 

an extension of the comments on the 

scope and organization of the proposed 

definition of GOTV activity itself. One 

commenter, for example, indicated that 

the exception did not sufficiently 

narrow the definition of ‘‘GOTV 

activity’’ and would not appropriately 

protect ‘‘persuasion communications’’ 

that are ‘‘devoted to convincing a voter 

to vote for a particular candidate or 

party.’’ Another commenter urged the 

Commission not to adopt the 

exhortation exception and, instead, 

simply define GOTV activity as covering 

only activities that facilitate voting. A 

different commenter suggested that the 

line between exhortation and 

encouragement existed where the 

communication or activity specifically 

urged a potential voter to vote. In the 

opinion of this commenter, a sign saying 

‘‘Vote for Smith’’ would be an 

exhortation to vote, while a sign saying 

‘‘Go Vote for Smith’’ would encourage 

voting and thus constitute GOTV 

activity. 

Other comments focused on the scope 

of the proposed exception. Specifically, 

commenters addressed whether the 

exception should be limited, as it was 

in the NPRM, to exhortations made 

during speeches and events, or whether 

it should also cover exhortations made 

in other contexts. Two commenters 

supported adopting the proposed 

exception, pointing out that the court’s 

opinion specifically referenced only 

‘‘routine or spontaneous speech-ending 

exhortations.’’ Several commenters, 

though, believed that there was no 

reason to limit the exception by the 

medium in which the communication 

was delivered or the forum in which it 

was made. One of these commenters 

stated that ‘‘[n]othing in the court’s 

decisions [could] reasonably be read to 

mean that exhortations are to be 

excluded only if made in a speech or at 

a rally but not if made by other means 

of communications.’’ 

Two commenters addressed the 

proposed requirement in the NPRM 

that, to qualify for the exception, an 

exhortation be incidental to a speech or 

event. One commenter suggested that 

the Commission determine whether an 

exhortation is, in fact, incidental by 

engaging in a time/space analysis. 

Another commenter suggested that the 

exhortation exception be further limited 

to only spontaneous communications 

and not cover communications that are 

scripted. 

The Commission has considered the 

comments and has decided to adopt a 

somewhat more expansive exception 

than initially proposed. While the Shays 

III court required the Commission to 

adopt a more expansive definition of 

GOTV, the court acknowledged that the 

Commission could exclude from the 

definition ‘‘routine or spontaneous 

speech-ending exhortations’’ and ‘‘mere 

exhortations * * * made at the end of 

a political event or speech.’’ Shays III, 

528 F.3d at 932. 

The Commission agrees with those 

commenters who indicated that the 

exception should not be limited by 

medium or forum. To limit the 

exception to exhortations made only at 

speeches or rallies would elevate form 

over substance and is not necessary to 

give effect to the court’s opinion. The 

court did not require the Commission to 

create artificial distinctions between an 

incidental exhortation during a speech 

or rally and an incidental exhortation 

made in a written communication or 

telephone call conveying the same 

message. 

This exemption will not inoculate 

speeches or events that otherwise would 

meet the definition of ‘‘GOTV activity.’’ 

For example, a speech given within the 

covered Federal election activity period 

that devotes several minutes to 

providing listeners with information on 

how and where to vote would not 

qualify under the exception at new 11 

CFR 100.24(a)(3)(ii). Instead, the 

exception is intended to ensure that 

communications that would not 

otherwise be GOTV activity do not 

become GOTV activity merely because 

they include a brief, incidental 

exhortation to vote. 

C. 11 CFR 100.24(c)(5) and (c)(6)—Voter 

Identification and GOTV Activity Solely 

in Connection With a Non-Federal 

Election 

The new provisions at 11 CFR 

100.24(c)(5) and (c)(6) restructure the 

combined provision proposed in the 

NPRM by addressing voter 

identification and GOTV activity in two 

separate provisions. New paragraph 

(c)(5) of 11 CFR 100.24 provides that 

certain voter identification that is 

conducted solely in connection with a 

non-Federal election that is held on a 

date within the Type II Federal election 

activity time periods, but on which no 

Federal election is held, and which is 

not used in a subsequent election in 

which a Federal candidate is on the 

ballot, is not subject to BCRA’s Federal 

election activity funding restrictions. 

New paragraph (c)(6) of 11 CFR 

100.24 provides that certain GOTV 

activity that is conducted solely in 

connection with a non-Federal election 

that is held on a date within the Type 

II Federal election activity time periods, 

but on which no Federal election is 

held, is not subject to BCRA’s Federal 

election activity funding restrictions, 

provided that any communications 

made as part of such activity refer 

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Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 / Rules and Regulations 55265 

exclusively to: (1) Non-Federal 

candidates participating in the nonFederal election, if 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. 

The Commission received several 

comments on the provision as proposed 

in the NPRM. Five commenters 

supported the provision, saying that it 

struck the proper balance and 

characterized it as ‘‘sensible.’’ One 

commenter believed it was proper to 

exclude such activities from the Federal 

election activity funding restrictions 

because they do not directly benefit 

Federal candidates, which was the focus 

of the McConnell court in analyzing 

BCRA. 

Many of these commenters also 

indicated that the proximity of an 

exclusively non-Federal election to a 

subsequent Federal election should 

have no bearing on the application of 

the provision. One commenter said that 

the proximity of the two types of 

elections was irrelevant because they 

involve different variables; the issues 

that inform voter identification and 

motivate voters in non-Federal elections 

are very different from those that inform 

and motivate in a Federal election. 

Accordingly, according to these 

commenters, voter identification and 

GOTV activity conducted for a nonFederal election is of little use in a 

subsequent Federal election. 

In contrast, two commenters objected 

to the provision on the basis that it 

would allow activity that affected 

Federal elections to be funded with nonFederal funds contrary to BCRA’s intent. 

According to these commenters, all 

voter identification and GOTV activity 

confer benefits on Federal candidates 

and, as such, these activities must be 

regulated to avoid the risk of actual or 

apparent corruption. 

BCRA requires State, district, and 

local political party committees and 

organizations to finance Federal election 

activity with Federal funds, or, in some 

instances, with an allocated mix of 

Federal funds and Levin funds. 2 U.S.C. 

441i(b); 11 CFR 300.33. One of the 

principal sponsors of BCRA described 

its Federal election activity provisions 

as a ‘‘balanced approach which 

addresses the very real danger that 

Federal contribution limits could be 

evaded by diverting funds to State and 

local parties,’’ while ‘‘not attempt[ing] to 

regulate State and local party spending 

where this danger is not present, and 

where State and local parties engage in 

purely non-Federal activities.’’ 148 

Cong. Rec. S2138 (daily ed. Mar. 20, 

2002) (Statement of Sen. McCain). 

BCRA does not require the 

Commission to regulate voter 

identification or GOTV activities by 

State, district, and local political party 

groups that are exclusively in 

connection with non-Federal elections. 

Many communities hold entirely nonFederal elections on dates that are 

separate from any election in which a 

Federal candidate appears on the ballot, 

but that nevertheless fall within the 

Type II Federal election activity time 

periods. See, e.g. http:// 

www.usmayors.org/elections/ 

electioncitiesfall2010.pdf (listing 

mayoral elections held in 2010) (last 

visited July 28, 2010). The Commission, 

therefore, is adopting exceptions in the 

final rule to distinguish better between 

voter identification and GOTV activities 

that are Federal election activity, and 

those activities that are not Federal 

election activity because they do not 

affect elections in which Federal 

candidates appear on the ballot. 

D. 11 CFR 100.24(c)(7)—Activities 

Involving De Minimis Costs 

New paragraph (c)(7) of 11 CFR 

100.24 provides that de minimis costs 

associated with the following 

enumerated activities are not subject to 

the Federal election activity funding 

restrictions: (1) On the Web site of a 

party committee or association of State 

or local candidates, posting a hyperlink 

to a State or local election board’s Web 

page containing information on voting 

or registering to vote; (2) on the Web site 

of a party committee or association of 

State or local candidates, enabling 

visitors to download a voter registration 

form or absentee ballot application; (3) 

on the Web site of a party committee or 

association of State or local candidates, 

providing information about voting 

dates and/or polling locations and hours 

of operation; and (4) placing voter 

registration forms or absentee ballot 

applications obtained from the board of 

elections at the office of a party 

committee or association of State or 

local candidates. 

In the NPRM, the Commission asked 

generally whether the proposed 

definitions of ‘‘voter registration 

activity’’ and ‘‘GOTV activity’’ covered 

activity that Congress did not intend to 

regulate in BCRA and, if so, what those 

activities were. 

In response, one commenter pointed 

out that under the expanded definitions 

of ‘‘voter registration activity’’ and 

‘‘GOTV activity,’’ ‘‘all the organizational 

activity of every county, every city, and 

every state committee is going to be 

brought into these regulations,’’ since— 

on some level—organizing people to 

register to vote, and to vote, informs 

everything that party committees do. 

This commenter noted, for example, 

that State and local parties commonly 

post on their Web sites information on 

voter registration and voting but that the 

cost is ‘‘typically minimal and is folded 

into the general administrative costs of 

operating the committee.’’ To the extent 

that this activity was covered as ‘‘voter 

registration activity’’ or ‘‘GOTV activity,’’ 

all the operational costs would 

potentially need to be funded with 

Federal funds or a mix of Federal and 

Levin funds, as appropriate. 

The Commission is mindful of the 

administrative complexities that State, 

district and local party committees, as 

well as associations of State and local 

candidates, would face in tracking the 

nominal, incidental costs of these 

activities. As recognized by the courts, 

agencies may promulgate de minimis 

exemptions to the statutes they 

administer on the basis that ‘‘Congress is 

always presumed to intend that 

pointless expenditures of effort be 

avoided.’’ Ass’n of Admin. Law Judges v. 

FLRA, 397 F.3d 957, 961–62 (DC Cir. 

2005). Although there are limits to this 

authority—de minimis exceptions are 

inappropriate for extraordinarily rigid 

statutes or when the regulatory costs of 

the exemption exceed its benefits—it is 

inherent in most statutory schemes. Id. 

at 962; see Envtl. Def. Fund v. EPA, 82 

F.3d 451, 466 (DC Cir. 1996). 

Accordingly, the Commission has 

decided to adopt new paragraph (c)(7) at 

11 CFR 100.24 to make clear that certain 

activities are not subject to BCRA’s 

Federal election activity funding 

restrictions. Such a de minimis 

exception is entirely appropriate in this 

context because many of the activities 

listed will involve no costs and, thus, 

already effectively fall outside the 

Federal election activity funding 

regulations. To the extent that the listed 

activities do involve de minimis costs, 

they are so small that—even aggregated 

over a long period of time—they would 

not result in any meaningful evasion of 

BCRA’s soft money restrictions. 

The Commission notes that this 

provision only covers de minimis costs 

associated with the enumerated 

activities; amounts that are not de 

minimis, which are incurred in 

connection with the enumerated 

activities, must still be paid for with 

Federal funds or a mix of Federal and 

Levin funds, as appropriate. In addition, 

the provision in paragraph (c)(7) does 

not cover de minimis costs associated 

with other activities. The costs 

associated with activities not 

enumerated, regardless of how small, 

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55266 Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 / Rules and Regulations 

must also be paid for with Federal funds 

or a mix of Federal and Levin funds, as 

appropriate. Thus, the list of activities 

enumerated in the provision is 

exhaustive. Activities not listed are not 

covered, regardless of how closely 

related they are to the activities listed. 

E. Additional Issues 

1. Advisory Opinion 2006–19 (Los 

Angeles County Democratic Party 

Central Committee) 

In Shays III, the Court of Appeals 

criticized Advisory Opinion 2006–19 

(Los Angeles County Democratic Party 

Central Committee), 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 because the 

communications did not provide 

individualized assistance to voters. See 

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

held that this overly restrictive 

construction of the definition of ‘‘GOTV 

activity’’ was contrary to the statute. See 

id. The Commission is superseding 

Advisory Opinion 2006–19 because the 

conclusion of that advisory opinion, 

along with its reasoning, cannot be 

reconciled with the Commission’s new 

definition of ‘‘GOTV activity.’’ 

2. Associations of State and Local 

Candidates and Officeholders 

One commenter pointed out that the 

NPRM ‘‘refer[red] repeatedly to ‘state, 

district or local party committees’’’ and 

referred ‘‘only incidentally to 

associations of state and local 

candidates and officeholders.’’ The 

commenter noted that such associations 

are subject to the Federal election 

activity funding restrictions to the same 

extent as State, district, and local party 

committees. 

The Commission agrees with the 

commenter that the new definitions of 

‘‘voter registration activity’’ and ‘‘GOTV 

activity’’ apply equally to party 

committees and associations of State 

and local candidates, alike. Any 

disproportionate references to party 

committees in the NPRM—and in this 

E&J—do not reflect a determination by 

the Commission that the activities of 

associations of State and local 

candidates are less important or less 

likely to fall under the umbrella of 

Federal election activity established by 

Congress. Previous attempts to exempt 

the activities of associations of State and 

local candidates from the definition of 

‘‘GOTV activity’’ were found to be 

contrary to BCRA, see Shays I, 337 F. 

Supp. 2d at 104, and the Commission is 

not revisiting that decision. 

3. Communications Referencing Only 

State and Local Candidates 

In the NPRM, the Commission 

proposed adding an exception to the 

definition of ‘‘GOTV activity’’ at 11 CFR 

100.24(a)(3)(iii) for public 

communications that refer solely to one 

or more clearly identified candidates for 

State or local office and note the date of 

the election. The proposal was designed 

to ensure that the expansion of the 

GOTV activity definition required by 

the Shays III court would 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). 

Several commenters addressed the 

proposed ‘‘State and local 

communication’’ exception. Five 

commenters supported it. One stated 

that the exception would ensure that 

State and local parties are not deterred 

from supporting State and local 

candidates and that the benefits of the 

proposed exception ‘‘far outweigh the 

incidental effect [that the covered] 

activities may have on Federal 

elections.’’ The same commenter 

thought that the exception should be 

expanded to cover State ballot 

initiatives, as well. Another commenter 

thought the exception properly 

excluded from the definition of ‘‘GOTV 

activity’’ those activities that are not 

‘‘primarily aimed at facilitating the act of 

voting.’’ A third commenter 

characterized the exception as a 

‘‘common-sense implementation’’ of the 

statute that was particularly necessary 

in States in which local elections are 

frequently held. 

In contrast, two other commenters 

urged the Commission to reject the 

proposed exception on the basis that it 

would ‘‘render meaningless’’ the 

definition of ‘‘GOTV activity’’ and would 

‘‘swallow the rule.’’ In particular, these 

commenters noted that the proposed 

exception left out a critical component 

of the statutory exception on which it 

was based: that the communications not 

otherwise meet the definition of ‘‘GOTV 

activity.’’ As pointed out by the 

commenter: 

[T]he fact that a communication refers 

solely to a State or local candidate is not 

sufficient to satisfy the exemption, if the 

communication otherwise constitutes GOTV 

or voter registration activity. In other words, 

the key issue is not whether the 

communication refers solely to a non-federal 

candidate, but rather whether the 

communication is GOTV or voter registration 

activity. If it is GOTV or voter registration 

activity, it is not eligible for the exemption, 

even if it refers only to a state or local 

candidate. 

The Commission is not adopting the 

‘‘State and local communication’’ 

exception. The provisions at 2 U.S.C. 

431(20)(B)(i) and 11 CFR 100.24(c)(1) 

remain and continue to exempt from the 

definition of Federal election activity 

public communications that refer solely 

to a clearly identified candidate for 

State or local office, which do not 

otherwise constitute voter registration 

activity, GOTV activity, generic 

campaign activity or voter identification 

within the applicable time periods. 

Furthermore, the Commission notes 

that grassroots campaign materials, 

including buttons, bumper stickers, 

handbills, brochures, posters, and yard 

signs, which name or depict only State 

or local candidates, continue to be 

exempt from the definition of Federal 

election activity, provided that this 

grassroots materials exception shall not 

include materials that are distributed by 

mail. 2 U.S.C. 431(20)(B)(iv); 11 CFR 

100.24(c)(4). As such, a yard sign 

exhorting readers to ‘‘Vote Smith for 

Mayor on September 15th!’’ or a 

handbill that encourages a reader to 

‘‘Support your County Commissioner! 

Register by next Tuesday!’’ could be 

paid for entirely with non-Federal 

funds. 

Certification of No Effect Pursuant to 

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

Act) 

The Commission certifies that the 

attached final rule will not have a 

significant economic impact on a 

substantial number of small entities. 

The basis for this certification is that the 

organizations affected by this rule are 

State, district, and local party 

committees, which are not ‘‘small 

entities’’ under 5 U.S.C. 601. These notfor-profit committees do not meet the 

definition of ‘‘small organization,’’ 

which requires that the enterprise be 

independently owned and operated and 

not dominant in its 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 State and are 

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Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 / Rules and Regulations 55267 

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 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 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 paragraphs (c)(5), (c)(6) and 

(c)(7) to read as follows: 

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

431(20)). 

(a) * * * 

(2) Voter registration activity. 

(i) Voter registration activity means: 

(A) Encouraging or urging potential 

voters to register to vote, whether by 

mail (including direct mail), e-mail, in 

person, by telephone (including prerecorded telephone calls, phone banks 

and messaging such as SMS and MMS), 

or by any other means; 

(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; 

(E) Submitting or delivering a 

completed voter registration form on 

behalf of a potential voter; 

(F) Offering or arranging to transport, 

or actually transporting potential voters 

to a board of elections or county clerk’s 

office for them to fill out voter 

registration forms; or 

(G) Any other activity that assists 

potential voters to register to vote. 

(ii) Activity is not voter registration 

activity solely because it includes a brief 

exhortation to register to vote, so long as 

the exhortation is incidental to a 

communication, activity, or event. 

Examples of brief exhortations 

incidental to a communication, activity, 

or event include: 

(A) A mailer praises the public service 

record of mayoral candidate X and/or 

discusses his campaign platform. The 

mailer concludes by reminding 

recipients, ‘‘Don’t forget to register to 

vote for X by October 1st.’’ 

(B) A phone call for a State party 

fundraiser gives listeners information 

about the event, solicits donations, and 

concludes by reminding listeners, 

‘‘Don’t forget to register to vote.’’ 

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

(i) Get-out-the-vote activity means: 

(A) Encouraging or urging potential 

voters to vote, whether by mail 

(including direct mail), e-mail, in 

person, by telephone (including prerecorded telephone calls, phone banks 

and messaging such as SMS and MMS), 

or by any other means; 

(B) Informing potential voters, 

whether by mail (including direct mail), 

e-mail, in person, by telephone 

(including pre-recorded telephone calls, 

phone banks and messaging such as 

SMS and MMS), or by any other means, 

about: 

(1) Times when polling places are 

open; 

(2) The location of particular polling 

places; or 

(3) Early voting or voting by absentee 

ballot; 

(C) Offering or arranging to transport, 

or actually transporting, potential voters 

to the polls; or 

(D) Any other activity that assists 

potential voters to vote. 

(ii) Activity is not get-out-the-vote 

activity solely because it includes a brief 

exhortation to vote, so long as the 

exhortation is incidental to a 

communication, activity, or event. 

Examples of brief exhortations 

incidental to a communication, activity, 

or event include: 

(A) A mailer praises the public service 

record of mayoral candidate X and/or 

discusses his campaign platform. The 

mailer concludes by reminding 

recipients, ‘‘Vote for X on November 

4th.’’ 

(B) A phone call for a State party 

fundraiser gives listeners information 

about the event, solicits donations, and 

concludes by reminding listeners, 

‘‘Don’t forget to vote on November 4th.’’ 

* * * * * 

(c) * * * 

(5) Voter identification activity that is 

conducted solely in connection with a 

non-Federal election held on a date on 

which no Federal election is held, and 

which is not used in a subsequent 

election in which a Federal candidate 

appears on the ballot. 

(6) Get-out-the-vote activity that is 

conducted solely in connection with a 

non-Federal election held on a date on 

which no Federal election is held, 

provided that any communications 

made as part of such activity refer 

exclusively to: 

(i) Non-Federal candidates 

participating in the non-Federal 

election, if 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. 

(7) De minimis costs associated with 

the following: 

(i) On the Web site of a party 

committee or an association of State or 

local candidates, posting a hyperlink to 

a state or local election board’s web 

page containing information on voting 

or registering to vote; 

(ii) On the Web site of a party 

committee or an association of State or 

local candidates, enabling visitors to 

download a voter registration form or 

absentee ballot application; 

(iii) On the Web site of a party 

committee or an association of State or 

local candidates, posting information 

about voting dates and/or polling 

locations and hours of operation; or 

(iv) Placing voter registration forms or 

absentee ballot applications obtained 

from the board of elections at the office 

of a party committee or an association 

of State or local candidates. 

On behalf of the Commission. 

Dated: September 7, 2010. 

Matthew S. Petersen, 

Chairman, Federal Election Commission. 

[FR Doc. 2010–22648 Filed 9–9–10; 8:45 am] 

BILLING CODE 6715–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 71 

[Docket No. 29334; Amendment No. 71–42] 

Airspace Designations; Incorporation 

By Reference 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: This action amends Title 14 

Code of Federal Regulations (14 CFR) 

part 71 relating to airspace designations 

to reflect the approval by the Director of 

the Federal Register of the incorporation 

by reference of FAA Order 7400.9U, 

Airspace Designations and Reporting 

Points. This action also explains the 

procedures the FAA will use to amend 

the listings of Class A, B, C, D, and E 

airspace areas; air traffic service routes; 

WReier-Aviles on DSKJ8SOYB1PROD with RULES