[Federal Register: March 18, 2005 (Volume 70, Number 52)]
[Rules and Regulations]
[Page 13089-13091]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18mr05-1]
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Rules and Regulations
Federal Register
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[[Page 13089]]
FEDERAL ELECTION COMMISSION
11 CFR Parts 100 and 104
[Notice 2005-9]
Filing Documents by Priority Mail, Express Mail, and Overnight
Delivery Service
AGENCY: Federal Election Commission.
ACTION: Final rules and transmittal of regulations to Congress.
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SUMMARY: The Federal Election Commission is promulgating amended rules
regarding the timely filing of designations, reports, and statements.
Under these final rules, the Commission will consider certain documents
to be filed prior to actual receipt, if such documents are sent using
Priority Mail, Express Mail, or delivered by an overnight delivery
service. Further information is provided in the Supplementary
Information that follows.
EFFECTIVE DATE: The effective date for the amendments to 11 CFR 100.19
and 104.5 is April 18, 2005.
FOR FURTHER INFORMATION CONTACT: Mr. Brad C. Deutsch, Assistant General
Counsel, or Ms. Esa L. Sferra, Attorney, 999 E Street, NW., Washington,
DC 20463, (202) 694-1650 or (800) 424-9530.
SUPPLEMENTARY INFORMATION: The Consolidated Appropriations Act, 2004,
Pub. L. 108-199, div. F, tit. VI, Sec. 641, 188 Stat. 3 (2004) (the
``2004 Appropriations Act'') amended the Federal Election Campaign Act
of 1971, as amended, 2 U.S.C. 431 et seq., (``FECA'') to permit
political committees and others required to file certain documents to
use additional delivery options to satisfy the Commission's ``timely
filing'' requirements for these documents filed with the Commission or
the Secretary of the Senate. Section 434(a) of FECA previously
permitted reliance on a U.S. Postal Service (``USPS'') postmark date as
the date the Commission considers certain designations, reports, and
statements timely filed, but only if the document was sent by either
registered or certified mail.
The 2004 Appropriations Act amended section 434(a) of FECA, 2
U.S.C. 434(a)(2)(A)(i), (4)(A)(ii), and (5), by allowing filers that
use priority mail and express mail to treat the date of the USPS
postmark as the date of filing, so long as the mailing has a delivery
confirmation. The amendments to section 434(a) of FECA also allow
filers using an overnight delivery service to treat the date of deposit
with the overnight delivery service as the date of filing, so long as
the overnight delivery service has an on-line tracking system.
Accordingly, the Commission is amending 11 CFR 100.19, which specifies
when a document is ``timely filed,'' and 11 CFR 104.5, which
establishes due dates for reports.
On December 22, 2004, the Commission published a Notice of Proposed
Rulemaking (``NPRM'') in the Federal Register containing proposed rules
to implement the 2004 Consolidated Appropriations Act's amendments to
FECA. 69 FR 76626 (December 22, 2004). The Commission sought comments
on the proposed changes and on several issues raised in the NPRM. The
comment period ended January 21, 2005. The Commission received two
comments, including a letter from the Internal Revenue Service
indicating that it had ``no comments.'' These comments are available at
http://www.fec.gov/law/law_rulemakings.shtml#filing.htm under ``Filing
Documents by Priority Mail, Express Mail, and Overnight Delivery
Service.''
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 30 calendar days before they take effect. The
final rules that follow were transmitted to Congress on March 11, 2005.
Explanation and Justification
I. 11 CFR 100.19. File, Filed or Filing
Section 100.19 establishes filing deadlines for certain documents
and sets out criteria for when those documents will be considered
timely filed. Paragraph (b) of section 100.19 specifies when a mailed
document will be considered ``timely filed'' and is being revised and
reorganized into three paragraphs as follows. Paragraph (b)(1) contains
an amended definition of ``timely filed.'' Paragraph (b)(2) retains the
requirement that documents sent by first-class mail must be received by
the close of business on the prescribed filing date to be considered
timely filed. Paragraph (b)(3) contains new definitions of ``overnight
delivery service'' and ``postmark.''
A. 11 CFR 100.19(b)(1)
Paragraph (b)(1) now specifies that any document required to be
filed under Commission regulations, other than those specified in 11
CFR 100.19(c)-(g),\1\ is considered ``timely filed'' so long as the
document is postmarked \2\ by the due date and is deposited: (1) As
registered or certified mail in an established U.S. Post Office; (2) as
Priority Mail or Express Mail with a delivery confirmation in an
established U.S. Post Office; or (3) with an overnight delivery
service, so long as the document is scheduled to be delivered the next
business day after the date of deposit and is recorded in the delivery
service's on-line tracking system.
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\1\ Certain types of documents are specifically excluded from
the general definition of ``timely filed'' at 11 CFR 100.19(b)
because they have their own particular filing dates and methods
specified in sections 100.19 and 104.5 of the Commission's rules.
These include 48-hour statements of last minute contributions,
independent expenditure reports, and 24-hour statements of
electioneering communications. 11 CFR 100.19(d), (e), and (f); 11
CFR 104.5(f), (g), and (j). Additionally, candidate notifications of
expenditures from personal funds are considered filed only upon
receipt by certain parties. 11 CFR 100.19(g).
\2\ As discussed below, the new definition of ``postmark''
includes a USPS postmark and the verifiable date of deposit with an
overnight delivery service.
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The Commission received no comments on its initial interpretation
that the references to ``priority mail'' and ``express mail'' in the
2004 Appropriations Act denote USPS Priority Mail and Express Mail
because the terms are registered trademarks of
[[Page 13090]]
USPS.\3\ Accordingly, the final rules in paragraph (b)(1)(i)(B) reflect
this interpretation.
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\3\ See http://www.usps.com/all/welcome.htm.
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Regarding use of an overnight delivery service, the NPRM requested
comment on whether the amended rules should permit filers who use an
overnight delivery service to choose any delivery option offered by
such a service, so long the filing is scheduled to be delivered within
three business days from the date of deposit. Alternatively, the NPRM
invited comment on whether filers who use an overnight delivery service
should be limited to selecting only a next day delivery option offered
by such a service. No commenters addressed this issue.
The Commission concludes that it would be more consistent with the
language of the 2004 Appropriations Act, which specifies use of ``an
overnight delivery service,'' 2 U.S.C. 434(a), as amended by 2004
Appropriations Act (emphasis added), to require that filers using an
overnight delivery service choose an overnight (i.e., next business
day) option. Accordingly, the final rules at 11 CFR 100.19(b)(1)(i)(C)
require filers using an overnight delivery service to select a next
business day delivery option offered by such a service.
For any filer who uses an overnight delivery service and wishes to
treat the date of deposit as the date of filing, the 2004
Appropriations Act amendment to FECA requires that the filer use an
overnight delivery service that has an on-line tracking system.
Although the 2004 Appropriations Act requires that the overnight
delivery service have an on-line tracking system, it does not
specifically state that a filer must use such a system. No commenters
addressed whether the rule should require the use of an on-line
tracking system. Because an on-line tracking system will provide a
means to settle a dispute that may arise concerning the timely filing
of a document (i.e., the date of deposit), the Commission interprets
the statutory requirement to mean that a filer must in fact choose a
delivery option that includes tracking of the document, thereby
providing the filer and the Commission, or any other person, with the
ability to confirm deposit and delivery dates.\4\ Accordingly, under
amended 11 CFR 100.19(b)(1)(i)(C) a document deposited with an
overnight delivery service must be recorded in that delivery service's
on-line tracking system. The Commission received no comments about
whether a definition of ``on-line tracking system'' is necessary. The
Commission believes that the plain meaning of ``on-line tracking
system'' refers to a publicly available Internet-based tracking system
and that a definition is unnecessary.
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\4\ Filers should retain proof of mailing or other means of
transmittal of documents. See 11 CFR 104.5(i).
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Lastly, paragraph (b)(1)(ii) retains the requirement that a
document must be postmarked \5\ no later than 11:59 p.m. Eastern
Standard/Daylight Time on the due date, with the exception that pre-
election reports must be postmarked fifteen days before the election,
which is three days earlier than the report's due date.
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\5\ As discussed below, the new definition of ``postmark''
includes a USPS postmark and the verifiable date of deposit with an
overnight delivery service.
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B. 11 CFR 100.19(b)(2)
Paragraph (b)(2) continues to require that documents sent by first
class mail must be received by the close of business on the prescribed
filing date to be considered ``timely filed.'' However, new language in
section 100.19(b)(2) clarifies that documents, other than those
addressed in 11 CFR 100.19(c)-(g), sent by first class mail or by any
means other than those specified in 11 CFR 100.19(b)(1) (i.e., by any
means other than registered or certified mail, Priority Mail, Express
Mail, or with an overnight delivery service) must be received by the
close of business on the prescribed filing date in order to be
considered ``timely filed.'' The Commission received no comment on this
clarification and the clarifying language is almost identical to that
proposed in the NPRM.
C. 11 CFR 100.19(b)(3)
New paragraph (b)(3) contains definitions of ``overnight delivery
service'' and ``postmark.'' New paragraph (b)(3)(i) defines ``overnight
delivery service'' as a private delivery service of established
reliability that offers an overnight (i.e., next business day) delivery
option. The Commission received no comments on this definition. This
definition is consistent with new section 100.19(b)(1)(i)(C), discussed
above, which requires filers using an overnight delivery service to
select a next business day delivery option.
New paragraph (b)(3)(ii) defines ``postmark'' to include both a
USPS postmark, as well as the verifiable date that a document is
deposited with an overnight delivery service because filers may now
also treat the date of deposit with an overnight delivery service as
the date of filing.\6\ One comment specifically supported this
definition of ``postmark.''
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\6\ Internal Revenue Service regulations and Department of
Homeland Security regulations also define ``postmark'' to include
private carrier postmarks. See e.g., 26 CFR 301.7502-1(c)(1)(iii)(B)
and 8 CFR 245a.12(a)(3) and (4); see also 50 CFR 600.10 (Wildlife
and Fisheries regulations defining ``postmark'' as ``independently
verifiable evidence of the date of mailing, such as a U.S. Postal
Service postmark, or other private carrier postmark, certified mail
receipt, overnight mail receipt, or a receipt issued upon hand
delivery * * *'').
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II. 11 CFR 104.5. Filing Dates
Section 104.5 specifies the filing due dates for certain documents
filed by political committees and other persons. The Commission is
amending 11 CFR 104.5 consistent with the Commission's revised
definition of ``timely filing'' in amended section 100.19(b), discussed
above. These changes to 11 CFR 104.5 are almost identical to the ones
proposed in the NPRM, on which the Commission received no comment.
A. 11 CFR 104.5(a)(2)(i)(A) and (c)(1)(ii)
Paragraphs 104.5(a)(2)(i)(A) and (c)(1)(ii) of this section set
forth the filing due dates for pre-election reports filed by
congressional candidates' principal campaign committees and non-
authorized political committees. The Commission is revising these
paragraphs to specify that, like pre-election reports sent by
registered or certified mail, such reports sent by Priority Mail or
Express Mail with a delivery confirmation, or sent with an overnight
delivery service and scheduled to be delivered the next business day,
must be postmarked no later than the fifteenth day before the election.
B. 11 CFR 104.5(e)
Amended paragraph 104.5(e), which specifies the date the Commission
considers to be the filing date for certain designations, reports, and
statements required under section 104.5, now treats documents sent by
Priority Mail or Express Mail with a delivery confirmation, or sent
with an overnight delivery service and scheduled to be delivered the
next business day in the same manner as documents sent by registered or
certified mail. Specifically, all such documents are considered filed
on the date of the postmark. Pre-election reports filed by these
methods must be postmarked no later than the fifteenth day before the
election. Additionally, amended 11 CFR 104.5(e) contains changes to
clarify to which documents the final rules apply.
The Commission is also correcting one typographical error in
paragraph
[[Page 13091]]
104.5(e) to clarify that designations, reports, and statements sent by
first class mail or by any means other than registered or certified
mail, Priority Mail, Express Mail, or an overnight delivery service
must be received by the close of business on, rather than of, the
prescribed filing date. This correction is technical and nonsubstantive
and does not require a notice and comment period under the
Administrative Procedure Act, 5 U.S.C. 553.
Certification of No Effect Pursuant to 5 U.S.C. 605(b) (Regulatory
Flexibility Act)
The Commission certifies that the attached rules will not have a
significant economic impact on a substantial number of small entities.
The basis of this certification is that, to whatever limited extent
these rules may affect small entities, expanding options for delivering
statutorily required documents provides more flexibility to filers in
choosing the method of fulfilling their filing requirements. In
addition, these new filing methods are permissive, not required.
Therefore, the rules do not increase costs of compliance and may
decrease such costs.
List of Subjects
11 CFR Part 100
Elections.
11 CFR Part 104
Campaign funds, Political committees and parties, Reporting and
recordkeeping requirements.
0
For the reasons set forth in the preamble, the Federal Election
Commission is amending Subchapter A of Chapter I of Title 11 of the
Code of Federal Regulations as follows:
PART 100--SCOPE AND DEFINITIONS (2 U.S.C. 431)
0
1. The authority citation for Part 100 continues to read as follows:
Authority: 2 U.S.C. 431, 434, and 438(a)(8).
0
2. In section 100.19, paragraph (b) is revised to read as follows:
Sec. 100.19 File, filed or filing (2 U.S.C. 434(a)).
* * * * *
(b) Timely filed. (1) A document, other than those addressed in
paragraphs (c) through (g) of this section, is timely filed if:
(i) Deposited:
(A) As registered or certified mail in an established U.S. Post
Office;
(B) As Priority Mail or Express Mail, with a delivery confirmation,
in an established U.S. Post Office; or
(C) With an overnight delivery service and scheduled to be
delivered the next business day after the date of deposit and recorded
in the overnight delivery service's on-line tracking system; and
(ii) The postmark on the document must be dated no later than 11:59
p.m. Eastern Standard/Daylight Time on the filing date, except that
pre-election reports must have a postmark dated no later than 11:59
p.m. Eastern Standard/Daylight Time on the fifteenth day before the
date of the election.
(2) Documents, other than those addressed in paragraphs (c) through
(g) of this section, sent by first class mail or by any means other
than those listed in paragraph (b)(1)(i) of this section must be
received by the close of business on the prescribed filing date to be
timely filed.
(3) As used in this paragraph (b) of this section and in 11 CFR
104.5,
(i) Overnight delivery service means a private delivery service
business of established reliability that offers an overnight (i.e.,
next business day) delivery option.
(ii) Postmark means a U.S. Postal Service postmark or the
verifiable date of deposit with an overnight delivery service.
* * * * *
PART 104--REPORTS BY POLITICAL COMMITTEES AND OTHER PERSONS (2
U.S.C. 434)
0
3. The authority citation for Part 104 continues to read as follows:
Authority: 2 U.S.C. 431(1), 431(8), 431(9), 432(i), 434,
438(a)(8) and (b), 439a, 441a, and 36 U.S.C. 510.
0
4. In section 104.5, paragraphs (a)(2)(i)(A), (c)(1)(ii)(A), and (e)
are revised to read as follows:
Sec. 104.5 Filing dates (2 U.S.C. 434(a)(2)).
(a) * * *
(2) Additional reports in the election year. (i) Pre-election
reports. (A) Pre-election reports for the primary and general election
must be filed no later than 12 days before any primary or general
election in which the candidate seeks election. If sent by registered
or certified mail, Priority Mail or Express Mail with a delivery
confirmation, or with an overnight delivery service and scheduled to be
delivered the next business day after the date of deposit and recorded
in the overnight delivery service's on-line tracking system, the
postmark on the report must be dated no later than the 15th day before
any election.
* * * * *
(c) * * *
(1) * * *
(ii) Pre-election reports. (A) Pre-election reports for the primary
and general election shall be filed by a political committee which
makes contributions or expenditures in connection with any such
election if such disbursements have not been previously disclosed. Pre-
election reports shall be filed no later than 12 days before any
primary or general election. If sent by registered or certified mail,
Priority Mail or Express Mail with a delivery confirmation, or with an
overnight delivery service and scheduled to be delivered the next
business day after the date of deposit and recorded in the overnight
delivery service's on-line tracking system, the postmark on the report
shall be dated no later than the 15th day before any election.
* * * * *
(e) Date of filing. A designation, report or statement, other than
those addressed in paragraphs (f), (g), and (j) of this section, sent
by registered or certified mail, Priority Mail or Express Mail with a
delivery confirmation, or with an overnight delivery service and
scheduled to be delivered the next business day after the date of
deposit and recorded in the overnight delivery service's on-line
tracking system, shall be considered filed on the date of the postmark
except that a twelve day pre-election report sent by such mail or
overnight delivery service must have a postmark dated no later than the
15th day before any election. Designations, reports or statements,
other than those addressed in paragraphs (f), (g), and (j) of this
section, sent by first class mail, or by any means other than those
listed in this paragraph (e), must be received by the close of business
on the prescribed filing date to be timely filed. Designations, reports
or statements electronically filed must be received and validated at or
before 11:59 p.m., eastern standard/daylight time on the prescribed
filing date to be timely filed.
* * * * *
Dated: March 10, 2005.
Scott E. Thomas,
Chairman, Federal Election Commission.
[FR Doc. 05-5391 Filed 3-17-05; 8:45 am]
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