Rule2023-27908
Technological Modernization
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 2, 2024
Effective
March 1, 2024
Issuing agencies
Federal Election Commission
Abstract
These final rules modernize Federal Election Commission regulations in light of technological advances in communications, recordkeeping, and financial transactions, such as the making of contributions and expenditures through internet-based payment processors or text messaging. These final rules also eliminate and update references to outdated technologies and address similar technological issues.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 1 (Tuesday, January 2, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 1 (Tuesday, January 2, 2024)]
[Rules and Regulations]
[Pages 196-221]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-27908]
[[Page 195]]
Vol. 89
Tuesday,
No. 1
January 2, 2024
Part IV
Federal Election Commission
-----------------------------------------------------------------------
11 CFR Parts 1, 4, et al.
Technological Modernization; Final Rule
Federal Register / Vol. 89 , No. 1 / Tuesday, January 2, 2024 / Rules
and Regulations
[[Page 196]]
-----------------------------------------------------------------------
FEDERAL ELECTION COMMISSION
11 CFR Parts 1, 4, 5, 6, 100, 102, 103, 104, 105, 106, 108, 109,
110, 111, 112, 114, 116, 200, 201, 300, 9003, 9004, 9007, 9032,
9033, 9034, 9035, 9036, 9038, and 9039
[Notice 2023-20]
Technological Modernization
AGENCY: Federal Election Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: These final rules modernize Federal Election Commission
regulations in light of technological advances in communications,
recordkeeping, and financial transactions, such as the making of
contributions and expenditures through internet-based payment
processors or text messaging. These final rules also eliminate and
update references to outdated technologies and address similar
technological issues.
DATES: Effective March 1, 2024.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Rothstein, Assistant General
Counsel, or Ms. Joanna S. Waldstreicher or Mr. Tony Buckley, Attorneys,
1050 First Street NE, Washington, DC 20463, (202) 694-1650 or (800)
424-9530.
SUPPLEMENTARY INFORMATION: The Federal Election Commission is revising
its regulations at 11 CFR chapter I to address electronic
communications and transactions, such as contributions made using
credit cards, by text messages, or through internet-based payment
processors. The Commission is also making regulatory revisions to
facilitate electronic accounting, recordkeeping, reporting, and
redesignation by political committees. Additionally, as a retrospective
assessment of Commission regulations,\1\ the revisions eliminate or
update references to outmoded technologies.
---------------------------------------------------------------------------
\1\ See generally, Jeffrey S. Lubbers, A Guide to Federal Agency
Rulemaking 404-411 (6th ed. 2018) (summarizing ``lookback'' efforts
designed to update or remove outdated or ineffective regulations);
Adoption of Recommendations, 79 FR 75114, 75114-17 (Dec. 17, 2014)
(Administrative Conference of the United States framework for
agencies' retrospective reviews of their regulations); Special
Committee to Review the Government in the Sunshine Act, 60 FR 43108,
43109-10 (Aug. 18, 1995) (recognizing agencies' ``need to review
regulations already adopted to ensure that they remain current,
effective and appropriate'').
---------------------------------------------------------------------------
Transmitting Final Rules to Congress
Before promulgating rules or regulations to carry out the
provisions of the Federal Election Campaign Act, the Commission
transmits the rules or regulations to the Speaker of the House of
Representatives and the President of the Senate for a thirty-
legislative-day review period. 52 U.S.C. 30111(d). These final rules
were transmitted to Congress on December 14, 2023.
Explanation and Justification
A. Rulemaking History
On May 2, 2013, the Commission published in the Federal Register an
Advance Notice of Proposed Rulemaking (``ANPRM'') soliciting comment on
whether and how it should revise its regulations to reflect
technological advances.\2\ The Commission then published a Notice of
Proposed Rulemaking (``NPRM'') in the Federal Register on November 2,
2016.\3\ The NPRM comment period ended on December 2, 2016. The
Commission received three substantive comments in response to the ANPRM
and three substantive comments in response to the NPRM; these are
discussed in relevant part below.\4\ The Commission published a Request
for Additional Comment in the Federal Register on Sept. 8, 2022,
seeking updated information on specific technological questions, and
received four comments.\5\ The Commission also published a Supplemental
Notice of Proposed Rulemaking in the Federal Register on December 9,
2022, and received six substantive comments in response.\6\
---------------------------------------------------------------------------
\2\ Technological Modernization, 78 FR 25635 (May 2, 2013).
\3\ Technological Modernization, 81 FR 76416 (Nov. 2, 2016).
\4\ The Internal Revenue Service also commented that it sees no
conflict between this rulemaking and the Internal Revenue Code or
Treasury regulations. See 52 U.S.C. 30111(f).
\5\ Technological Modernization, 87 FR 54915 (Sept. 8, 2022)
(``Request for Additional Comment'').
\6\ Technological Modernization, 87 FR 75518 (Dec. 9, 2022)
(``SNPRM'').
---------------------------------------------------------------------------
B. The Growing Use of Electronic Transactions, Records, and
Communications
Electronic financial transactions are increasingly commonplace.
According to a recent triennial study conducted by the Federal Reserve
System, data collected in recent years ``largely show a continuation of
past payment trends, with card and ACH both gaining share at the
expense of checks,'' and increases in the use of newer ways to make
payments, such as digital wallets and P2P payments.\7\
---------------------------------------------------------------------------
\7\ Fed. Reserve Sys., Developments in Noncash Payments for 2019
and 2020: Findings from the Federal Reserve Payments Study at 2, 11-
14, (Dec. 2021), <a href="https://www.federalreserve.gov/publications/files/developments-in-noncash-payments-for-2019-and-2020-20211222.pdf">https://www.federalreserve.gov/publications/files/developments-in-noncash-payments-for-2019-and-2020-20211222.pdf</a>
(``Developments in Noncash Payments''); see also Fed. Reserve Sys.,
The Federal Reserve Payments Study: 2022 Triennial Initial Data
Release (Apr. 21, 2023), <a href="https://www.federalreserve.gov/paymentsystems/fr-payments-study.htm">https://www.federalreserve.gov/paymentsystems/fr-payments-study.htm</a>; Fed. Reserve Sys., The Federal
Reserve Payments Study 2016 at 2 (2016), <a href="https://www.federalreserve.gov/paymentsystems/files/2016-payments-study-20161222.pdf">https://www.federalreserve.gov/paymentsystems/files/2016-payments-study-20161222.pdf</a> (``2016 Study'').
---------------------------------------------------------------------------
Coinciding with the increased use of electronic payments is the
regular use of electronic records, including transactional records, and
electronic communications. A 2020 U.S. Government Accountability Office
report on the U.S. Postal Service found that ``[a]s online
communication and payments have expanded, USPS continues to face
decreases in mail volume, its primary revenue source. First-Class Mail
volume has declined 44 percent since fiscal year 2006,'' and ``USPS
Marketing Mail--which comprises most other mail volume--declined 27
percent from fiscal year 2007 to fiscal year 2019, in part due to
electronic advertising alternatives.'' \8\ Indeed, in a section of the
USPS website devoted to political mailing, one page addresses
``aligning your digital communications with direct mail delivery is a
powerful way to integrate your channels to help voters feel more
connected to your campaign.'' \9\
---------------------------------------------------------------------------
\8\ U.S. Gen. Accounting Office, GAO-20-385 USPS: Congressional
Action Is Essential to Enable a Sustainable Business Model 8-9
(2020).
\9\ See U.S. Postal Service, Informed Visibility Feature for
Political Campaigns, <a href="https://www.deliverthewin.com/content-library/informed-visibility-for-informed-political-campaigns/">https://www.deliverthewin.com/content-library/informed-visibility-for-informed-political-campaigns/</a> (last visited
Nov. 9, 2023).
---------------------------------------------------------------------------
At the same time, the federal government also has been
transitioning to electronic records management and communication. In
2014, the Federal Records Act was amended to require the National
Archive and Records Administration to establish ``standards for the
reproduction of records by photographic, microphotographic, or digital
processes with a view to the disposal of the original records.'' \10\
In 2022, the Office of Management and Budget issued a memorandum
stating that ``[t]ransitioning Federal agencies to an electronic--or
`paperless'--environment is a priority to enable and increase the
ability of the public to engage with Government in new and more
efficient and effective ways. It is critical that Federal agencies move
beyond paper-based processes and embrace the opportunities afforded to
improve Government by transitioning fully to an electronic
environment.'' \11\
---------------------------------------------------------------------------
\10\ 44 U.S.C. 3302(3).
\11\ OMB, Memorandum for the Heads of Executive Departments and
Agencies (Dec. 23, 2022), <a href="https://www.whitehouse.gov/wp-content/uploads/2022/12/M_23_07-M-Memo-Electronic-Records_final.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/12/M_23_07-M-Memo-Electronic-Records_final.pdf</a>.
---------------------------------------------------------------------------
The Commission has recognized this trend towards electronic records
management and communication by
[[Page 197]]
establishing procedures for the public to electronically submit Freedom
of Information Act (``FOIA'') requests, comments on rulemakings, and
comments on draft advisory opinions.\12\ In addition, certain political
committees are required to file their reports electronically with the
Commission,\13\ while the Commission encourages committees that are not
required to file electronically to do so regardless.\14\ During the
COVID-19 pandemic, the Commission adopted further procedures utilizing
electronic communications and records, including encouraging email
submission of advisory opinion requests, financial disclosures for
presidential and vice-presidential candidates, and inspector general
complaints; electronic signatures and notarizations on enforcement
complaints; and email transmittal of enforcement and litigation
documents.
---------------------------------------------------------------------------
\12\ See, e.g., FEC, Freedom of Information Act, <a href="https://www.fec.gov/freedom-information-act/">https://www.fec.gov/freedom-information-act/</a> (last visited Nov. 9, 2023);
FEC, Procedures Regarding Draft Advisory Opinions, <a href="http://www.fec.gov/law/draftaos.shtml">www.fec.gov/law/draftaos.shtml</a> (last visited Nov. 9, 2023); FEC, Submit Comments on
Ongoing Rulemakings, <a href="http://sers.fec.gov/fosers">sers.fec.gov/fosers</a> (last visited Nov. 9,
2023).
\13\ See 11 CFR 104.18(a).
\14\ See FEC, Electronic Filing Overview, <a href="https://www.fec.gov/help-candidates-and-committees/filing-reports/electronic-filing/">https://www.fec.gov/help-candidates-and-committees/filing-reports/electronic-filing/</a>
(last visited Nov. 9, 2023).
---------------------------------------------------------------------------
The statutes that the Commission is charged with implementing--the
Presidential Election Campaign Fund Act, 26 U.S.C. 9001-13, and the
Presidential Primary Matching Payment Account Act, 26 U.S.C. 9031-42
(collectively, the ``Funding Acts''), and the Federal Election Campaign
Act, 52 U.S.C. 30101-45 (``FECA'')--largely predate this technological
evolution, as do many of the Commission's regulations. For example,
these statutes and regulations generally contemplate contributions and
disbursements being made by cash, check, or ``draft,'' without
addressing electronic transactions, records, or communications. Thus,
to implement FECA and the Funding Acts in a manner that accounts for
the increased use of and reliance on newer technologies, the Commission
is updating its regulations, as described below.
C. General Definitions
Many of the Commission's current regulations do not account for
technological developments in how electronic documents are created,
maintained, and submitted, particularly in the context of electronic
transactions. The Commission is therefore revising its regulations to
encompass electronic documents and transactions. Specifically, the
Commission is adding new general definitions to 11 CFR part 100--for
the terms ``record,'' ``written, writing, and a writing,'' and
``signature and signed''--and revising the existing definition of
``file, filed, and filing'' at 11 CFR 100.19. Each of these definitions
will apply to all regulations implementing FECA and the Funding Acts in
11 CFR chapter 1, subchapters A-F (parts 100 through 300 and 9000
through 9042).\15\ These new and revised definitions are designed to be
broad enough to encompass both traditional (paper) and electronic
documents and flexible enough to remain relevant as new forms of
electronic documentation emerge in the future.
---------------------------------------------------------------------------
\15\ See 11 CFR 9001.1, 9031.1 (applying definitions in part 100
to public finance regulations unless expressly stated otherwise).
Unless expressly incorporated, the new part 100 definitions will not
apply to the administrative regulations in parts 1-8 (such as those
implementing the Privacy Act or FOIA), which generally have their
own definition sections because they implement different statutes
than the regulations in the remainder of 11 CFR chapter 1.
---------------------------------------------------------------------------
1. New Definition of ``Record''--11 CFR 100.34
FECA requires each political committee to ``keep an account of''
its contributions and disbursements and to maintain and preserve
certain records.\16\ The Funding Acts similarly require that certain
records be kept, and furnished to the Commission on request.\17\ The
Commission's regulations implementing these requirements refer to
``record(s)'' almost 150 times, but few such references that include
definitions or specific examples refer to electronic documentation.\18\
The Commission has therefore received numerous requests for guidance
regarding how its recordkeeping provisions apply to electronic
records.\19\
---------------------------------------------------------------------------
\16\ See 52 U.S.C. 30102(c), (d), (h)(2), (i); see also 52
U.S.C. 30104(i)(8)(A)(ii) (including in definition of ``bundled
contribution'' contributions received and credited through
``records,'' among other methods).
\17\ See 26 U.S.C. 9003(a)(2), 9012(d)(1)(B), 9033(a)(2),
9042(c)(1)(B); see also 26 U.S.C. 9009(b), 9039(b).
\18\ See, e.g., 11 CFR 102.9(b)(2) (requiring records such as
canceled checks, receipts, and carbon copies for disbursements over
$200), 102.9(d) (addressing best efforts to obtain ``receipts,
invoices, and cancelled checks''). But see 11 CFR 102.9(a)(4)
(requiring photocopy of each check or written instrument or digital
image of each check or written instrument), 104.22(a)(6)(ii)(A)
(defining ``record'' for lobbyist bundling purposes to include
electronic records).
\19\ See, e.g., Advisory Opinion 1995-09 (NewtWatch PAC)
(approving proposal to maintain records supporting electronic fund
transfers); Advisory Opinion 1993-04 (Christopher Cox Congressional
Committee); Advisory Opinion 1994-40 (Alliance for American
Leadership); see also FEC, Campaign Guide: Congressional Candidates
and Committees 87 (2021), <a href="http://www.fec.gov/pdf/candgui.pdf">www.fec.gov/pdf/candgui.pdf</a> (describing
recordkeeping for credit card disbursements).
---------------------------------------------------------------------------
As proposed in the NPRM, the Commission now adds a general
definition of ``record'' at 11 CFR 100.34 that expressly includes both
paper and electronic records. New 11 CFR 100.34 has two components.
First, Sec. 100.34(a) defines ``record'' broadly, as ``information
that is inscribed on a tangible medium or that is stored in an
electronic or other medium from which the information can be retrieved
and reviewed in visual or aural form.'' The definition draws on several
sources that describe a variety of paper and electronic records. These
sources include Black's Law Dictionary,\20\ the Federal Rules of
Evidence,\21\ Federal Rules of Civil Procedure,\22\ the Electronic
Signatures in Global and National Commerce Act (also known as the E-
Sign Act),\23\ and the Uniform Electronic Transactions Act
(``UETA'').\24\ The new definition uses the term ``information'' (as do
the Black's Law Dictionary, E-Sign Act, and UETA definitions of
``record'') rather
[[Page 198]]
than more specific examples of the forms in which information may be
presented (such as memoranda, reports, and other examples used in the
Federal Rules of Evidence and Federal Rules of Civil Procedure
definitions of ``record''). By using this broader term, the Commission
intends the definition to be flexible enough to encompass any new forms
of memorializing information that may arise as new documentation
technologies emerge.
---------------------------------------------------------------------------
\20\ See Record, Black's Law Dictionary (10th ed. 2014)
(``record'' is ``[i]nformation that is inscribed on a tangible
medium or that, having been stored in an electronic or other medium,
is retrievable in perceivable form'' (citing UCC 1-201(b)(31)).
\21\ See Fed. R. Evid. 101(b)(4) (``record'' includes ``a
memorandum, report, or data compilation''), 1001(b) (```recording'
consists of letters, words, numbers, or their equivalent recorded in
any manner''), 1001(d) (``original'' recording is ``recording itself
or any counterpart intended to have the same effect by the person
who executed or issued it. For electronically stored information,
`original' means any printout--or other output readable by sight--if
it accurately reflects the information.'').
\22\ See Fed. R. Civ. P. 34(a)(1)(A) (party may serve discovery
of ``any designated documents or electronically stored information--
including writings, drawings, graphics, charts, photographs, sound
recordings, images, and other data or data compilation--stored in
any medium from which information can be obtained directly or, if
necessary, after translation by the responding party into a
reasonably usable form'').
\23\ See 15 U.S.C. 7006(9) (``record'' is ``information that is
inscribed on a tangible medium or that is stored in an electronic or
other medium and is retrievable in perceivable form''), 7006(4)
(``electronic record'' is record ``created, generated, sent,
communicated, received, or stored by electronic means'').
\24\ See Unif. Elec. Transactions Act 2(7) (Nat'l Conference of
Comm'rs on Unif. State Laws 1999), <a href="https://www.uniformlaws.org/committees/community-home/librarydocuments?communitykey=2c04b76c-2b7d-4399-977e-d5876ba7e034&LibraryFolderKey=&DefaultView=">https://www.uniformlaws.org/committees/community-home/librarydocuments?communitykey=2c04b76c-2b7d-4399-977e-d5876ba7e034&LibraryFolderKey=&DefaultView=</a>
(``electronic record'' is ``record created, generated, sent,
communicated, received, or stored by electronic means''), 2(13)
(``record'' is ``information that is inscribed on a tangible medium
or that is stored in an electronic or other medium and is
retrievable in perceivable form''); see also id. at 2(5)
(```Electronic' means relating to technology having electrical,
digital, magnetic, wireless, optical, electromagnetic, or similar
capabilities''). The UETA is a model law developed by the National
Conference of Commissioners on Uniform State Laws. It has been
adopted in 49 states, the District of Columbia, Puerto Rico, and the
U.S. Virgin Islands.
---------------------------------------------------------------------------
Similarly, the Commission intends the definition of ``record'' to
be flexible with respect to the media in which information may be
memorialized. Thus, the Commission is including in the definition
information that is ``inscribed on a tangible medium'' or ``stored in
an electronic or other medium.'' Similar language is used in the
Black's Law Dictionary, E-Sign Act, UETA, and Federal Rules of Civil
Procedure definitions of ``record.'' By including information stored in
electronic ``or other'' media, the Commission intends the definition of
``record'' to be broad and flexible enough to address any new forms of
media on which information may be stored as technology develops.
The new definition requires any information stored on ``electronic
or other'' (non-tangible) media to be retrievable and reviewable in
visual or aural form. Most of the source definitions noted above
similarly require information to be both retrievable and perceivable.
The new definition requires information to be retrievable in ``visual
or aural'' form so that the Commission can review the record and, when
appropriate, make it available to the public. In essence, therefore,
the definition will enable any person to comply with the Commission's
recordkeeping regulations through the use of tangible or intangible
media, so long as the information stored in such records can be
retrieved and reviewed.
Second, new 11 CFR 100.34(b) requires any person who provides an
electronic (or otherwise non-tangible) record to the Commission to
provide the equipment and software needed to retrieve and review the
information in the record, upon request by, and at no cost to, the
Commission. The new regulation specifies that the Commission may
request such equipment and software when the Commission is unable to
review the record using the Commission's existing equipment and
software. A comparable requirement appears in 11 CFR 102.9(a)(4)(ii)
for political committees that maintain digital images of checks or
written instruments for contributions exceeding $50 and in 11 CFR
9036.2(b)(1)(vi) for publicly funded candidates submitting certain
digital images. Because the Commission is adopting new Sec. 100.34(b),
it is removing the separate requirements in 11 CFR 102.9(a)(4)(ii) and
9036.2(b)(1)(vi).
In conjunction with the new definition, the Commission is making
conforming amendments to a number of regulations.
First, the Commission is making conforming changes by replacing
references to ``copy,'' ``journal,'' ``document,'' or ``documentation''
with references to ``record'' in the following provisions: 11 CFR
100.82(e)(1)(i), 100.82(e)(2)(ii), 100.93(j)(1) through (3),
100.142(e)(1)(i), 100.142(e)(2)(ii), 102.9(b)(2)(i)(B) and (b)(2)(ii),
102.9(f), 102.11, 104.10(a)(4), 104.10(b)(5), 104.14(b)(4)(iv) and (v),
104.17(a)(4), 104.17(b)(4), 106.2(a)(1), 106.2(b)(2)(ii),
106.2(b)(2)(v), 110.1(l)(1), 110.1(l)(4)(i), 110.1(l)(6), 111.4(d)(4),
111.12(a) and (b),\25\ 111.15(c), 111.35(e), 111.36(b) through (e),
114.8(d)(2) and (3), 9003.1(b)(2) through (5), 9003.5, 9003.5(b),
(b)(1)(ii)(A) and (B), (b)(1)(iii) and (iv), (b)(4), and (c),
9003.6(c), 9004.7(b)(5)(iv) and (v), 9004.9(d)(1)(i) and (e),
9007.1(b)(1)(iv) and (c)(2), 9033.1(b)(2) through (6), 9033.2(c),
9033.11, 9033.11(b), (b)(1)(ii)(A) and (B), (b)(1)(iii) and (iv),
(b)(4), and (c), 9033.12(c), 9034.2(c)(1)(iii), 9034.5(c)(1) and (d),
9034.7(b)(5)(iv) and (v), 9034.8(b)(4), 9035.1(c)(3), 9036.1(b)(3),
(4), and (7), 9036.2(b)(1)(vi) and (vii), 9036.3(b), (b)(4), and (d),
9036.4(b)(4), 9036.5(c)(1), 9038.1(b)(1)(iv) and (c)(2), 9038.2(b)(3),
9039.2(a)(3) and (b), and 9039.3(b)(2)(vi). The Commission's
regulations will now use the defined term ``record'' in these
provisions to increase consistency in the regulatory terminology.
Moreover, by changing these provisions' references from ``copy,''
``document,'' and ``journal'' to ``record,'' the Commission intends to
avoid the implication that these provisions refer only to paper
materials or to mean something other than what is meant by ``record.''
\26\
---------------------------------------------------------------------------
\25\ The revisions to 11 CFR 111.12(a) and 111.15(c) render
these provisions consistent with the equivalent provisions of the
Federal Rules of Civil Procedure, which were amended in 2006 to
explicitly include ``electronically stored information'' within the
scope of material subject to document requests and subpoenas. See
Fed. R. Civ. P. 34(a)(1)(A), 45(a)(1)(A)(iii).
\26\ The Commission is also replacing the term ``document'' in
certain regulations with ``writing,'' as discussed below. The
Commission is not revising the terms ``copy,'' ``documentation,''
and ``document'' when they are used as terms of art or as verbs or
when they intentionally refer to paper. See, e.g., 11 CFR
100.134(e)(1)-(3) (``organizational documents'' of membership
organizations), 102.9(b)(2) (specifying how disbursements ``shall be
documented''), 4.1(j) (including ``paper copy'' in definition of
``duplication'' under FOIA).
---------------------------------------------------------------------------
Second, the Commission is replacing the regulatory requirements
that a committee receiving a check or other written instrument
designated for a specific election must retain ``a full-size photocopy
of the check or written instrument.'' \27\ Recognizing that such
records may reasonably be retained in forms other than ``a full-size
photocopy,'' the Commission is amending 11 CFR 110.1(l)(1) and
(l)(4)(ii) and 9036.1(b)(5) and (6) to require maintenance or
submission, as appropriate, of a ``record'' that contains a complete
image of that instrument. The Commission is not revising the references
to ``full-size photocopies'' in 11 CFR 9036.1(b)(3) because that
section already provides two procedures for submission of records: one
for paper records and another for digital records.
---------------------------------------------------------------------------
\27\ 11 CFR 110.1(l)(1), (l)(4)(ii); see also 11 CFR
9036.1(b)(5), (6) (referring to records that include ``full-size
photocopy'' of contribution checks).
---------------------------------------------------------------------------
Finally, the Commission is making conforming revisions to two
provisions that describe the administrative record in public finance
matters. The Commission is adding ``records'' to the lists of materials
that comprise the administrative record for final determinations in
Sec. Sec. 9007.7(a) and 9038.7(a).
The Commission has decided not to change the standalone definition
of ``records'' in the lobbyist bundling rule at 11 CFR
104.22(a)(6)(ii)(A), as that provision is already relatively expansive
and is consistent with the new general definition the Commission is
adopting.
2. New Definitions of ``Writing'' and ``Written''--11 CFR 100.35
FECA requires certain reports, statements, and other materials to
be ``written'' or ``in writing.'' \28\ The Funding Acts have similar
``writing'' and ``written'' requirements.\29\ In the Commission's
regulations, the terms ``written'' and ``writing'' (or forms of these
words) appear more than 200 times, usually without definition or
example.\30\ The Commission has, however, interpreted at least one of
these regulations to encompass certain categories of electronic
documents.\31\
---------------------------------------------------------------------------
\28\ See, e.g., 52 U.S.C. 30101(8)(B)(vii)(II), 30101(9)(A)(ii),
30102(e)(1), 30103(d)(1), 30104(a)(6)(A), 30108(a), 30109(a)(1),
30109(a)(12)(A), 30118(b)(4)(B); see also 52 U.S.C. 30107(a)(1),
30124(a).
\29\ See, e.g., 26 U.S.C. 9002(1), 9003(a), 9032(1), 9032(9),
9033(a), 9034(a); see also 26 U.S.C. 9009(b), 9039(b).
\30\ See, e.g., 11 CFR 102.7(c), 109.33(a), 110.1(b),
9003.3(a)(1)(i)(C), 9007.2(c).
\31\ See, e.g., Electronic Contributor Redesignations, 76 FR
16233 (Mar. 23, 2011) (noting internet-based redesignation method
that Commission found to be ``in writing and be signed by the
contributor'' as required by 11 CFR 110.1(b)(5) and 110.2(b)(5)).
---------------------------------------------------------------------------
[[Page 199]]
To clarify that ``written'' material or material ``in writing'' can
be either tangible or electronic, the Commission is adding a new
general definition at 11 CFR 100.35.\32\ The new definition essentially
replicates Rule 1001(a) of the Federal Rules of Evidence by defining
the terms ``written,'' ``in writing,'' and ``a writing'' to mean
``consisting of letters, words, numbers, or their equivalent set down
in any medium or form, including paper, email or other electronic
message, computer file, or digital storage device.'' \33\ In this
definition, the Commission intends ``writing'' and ``written'' to be
broad enough to encompass not only letters and words, but also their
equivalent--such as images or graphics (e.g., emojis or GIFs) used in
lieu of text--that may arise as new forms of electronic writing emerge
in the future. As in the definition of ``record,'' the regulation will
now provide that ``writing'' may be set down in any medium or form,
including electronic. The examples in the definition are drawn from
examples in the Black's Law Dictionary definition of ``writing'' and
include those media that the Commission believes are most likely to be
used by political committees. However, the examples are intended to be
illustrative and not an exhaustive list.
---------------------------------------------------------------------------
\32\ Some Commission regulations that require a document to be
``in writing'' or ``written'' also require the document to be
signed. The Commission is adopting a new definition of ``signed,''
discussed below.
\33\ See Fed. R. Evid. 1001(a) (`` `writing' consists of
letters, words, numbers, or their equivalent set down in any
form''). The Federal Rules of Evidence separately clarify that ``a
reference to any kind of written material or any other medium
includes electronically stored information.'' Fed. R. Evid.
101(b)(6).
---------------------------------------------------------------------------
In conjunction with the new definition, the Commission is making
conforming changes to a number of regulations, as described below.
First, the Commission is amending three regulations that refer to
``electronic mail'' as a ``written method'' of notification by which a
political committee may notify a contributor that the committee has
redesignated or reattributed a contribution.\34\ These references to
``electronic mail'' are redundant with the new definition of
``written.'' Furthermore, the continued inclusion of these references
might cause confusion regarding whether other Commission regulations
that address ``written'' material without specifically mentioning
``electronic mail'' implicitly exclude email. To avoid such redundancy
and confusion, the Commission is removing these three references to
electronic mail.
---------------------------------------------------------------------------
\34\ See 11 CFR 110.1(b)(5)(ii)(B)(6), (C)(7),
110.1(k)(3)(ii)(B)(3).
---------------------------------------------------------------------------
Second, the Commission is making conforming changes regarding
notifications, reports, and other communications that, under existing
regulations, must be made by ``letter.'' In light of the new broad
definition of ``writing,'' and to avoid implying that the
communications described in those provisions must be on paper, the
Commission is replacing each reference to ``letter'' with ``writing''
in the following provisions: 11 CFR 100.3(a)(3), 110.6(c)(1)(v),
111.9(a) and (b), 111.17(a) and (b), 111.18(d), 111.37(a) and (b),
111.40(a), 116.8(b), 9003.1(a)(1), 9032.2(d), 9033.1(b)(8), and
9033.5(a)(2).
Similarly, the Commission is revising several references to
``letters'' or ``mailings'' by replacing them with references to the
type of information contained therein, such as ``certification,''
``report,'' ``notice,'' or ``agreement.'' For example, 11 CFR 9003.2(d)
currently states: ``Major party candidates shall submit the
certifications required under 11 CFR 9003.2 in a letter which shall be
signed and submitted within 14 days after receiving the party's
nomination for election,'' and the provision makes several additional
references to ``such letter.'' The Commission is now revising 11 CFR
9003.2(d) to read: ``Major party candidates shall sign and submit the
certifications required under 11 CFR 9003.2 within 14 days after
receiving the party's nomination for election,'' and to replace further
references to ``such letter'' with the phrase ``such certification.''
The Commission is similarly replacing each reference to ``letter'' or
``mailing'' in the following provisions: 11 CFR 110.6(c)(1)(ii),
111.6(a), 111.23(a) and (b), 114.8, 116.8(b), 200.3(a)(2), 200.3(a)(3),
200.4(b), 201.3(b)(1), 201.3(b)(2)(i), 9003.1(a)(2), 9033.1(a)(1), and
9033.2(a)(1).
The Commission is also revising some uses of ``letter'' in
administrative regulations to which the new definition of ``writing''
would not apply. Specifically, the Commission is making the following
revisions to its public disclosure and Rehabilitation Act regulations:
(1) replace ``Letter requests'' with ``Requests'' in 11 CFR 5.4(a)(5);
(2) replace the reference to ``a letter containing'' certain
Rehabilitation Act notifications with a requirement for the
notifications to be ``in writing,'' 11 CFR 6.170(g); and (3) conform
Sec. 6.170(h) to the foregoing change by replacing that section's
reference to ``the letter'' required by Sec. 6.170(g) with ``the
notification.''
Third, the Commission is replacing the terms ``written document''
and ``written documentation'' with ``writing'' in 11 CFR
100.29(b)(6)(ii)(A) and 9034.2(c)(1)(i).
Finally, the Commission is making conforming changes to account for
the fact that the new general definition of ``written'' may create
confusion when applied to the use of that term in 11 CFR 300.64(c)(3).
Section 300.64(c)(3) had provided that certain ``written'' material
must satisfy the disclaimer requirements of 11 CFR 110.11(c)(2).
Section 110.11, however, sets forth requirements such as font size and
display type--requirements that, both on their face and under the
explicit terms of the regulation, apply only to ``printed''
material.\35\ Thus, to avoid suggesting that the new definition of
``written'' alters the substantive application of Sec. 300.64, the
Commission is conforming that section to Sec. 110.11 by replacing the
word ``written'' with ``printed'' in Sec. 300.64(c)(3)(ii) and (iii)
and removing the word ``written'' from Sec. 300.64(c)(3)(v).
---------------------------------------------------------------------------
\35\ See 11 CFR 110.11(c)(2).
---------------------------------------------------------------------------
The Commission has decided not to exclude the term ``written
instrument'' from the new definition.\36\ The Commission judges that
``written instrument'' is generally understood to be a term of art
referring to a check, money order, or negotiable instrument; as a term
of art, it will not be affected by the new definition of ``written.''
---------------------------------------------------------------------------
\36\ See 11 CFR 102.9(a)(4)(i)-(ii), 104.8(d)(1),
110.1(k)(3)(ii)(B)(1), 110.1(l)(1), 110.1(l)(4)(ii), 110.6(c)(1)(v),
110.20(a)(5)(iii), 9034.2(a)(1), 9034.2(a)(4), 9034.2(b), 9034.2(c),
9034.3(c), 9034.9(c)(7)(iv), 9036.1(b)(3), 9036.2(b)(1)(vi),
9036.3(b)(1)-(3), 9036.3(c)(3), 9036.5(c)(1).
---------------------------------------------------------------------------
3. New Definition of ``Signature'' and ``Electronic Signature''--11 CFR
100.36
FECA and the Funding Acts require certain documents to be
signed,\37\ sworn, notarized, submitted under oath, or certified under
penalty of perjury.\38\ In Commission regulations, the terms ``sign,''
``signed,'' and ``signature'' (and variants thereof) appear more than
50 times. Only some of these references provide for electronic
signatures,\39\
[[Page 200]]
although the Commission has interpreted at least one of the regulations
that does not so provide to nonetheless allow certain electronic
signatures.\40\ Similarly, only some of the Commission regulations
requiring certification under penalty of perjury provide for electronic
certifications.\41\
---------------------------------------------------------------------------
\37\ See 52 U.S.C. 30109(a)(1), 30109(a)(4)(B)(ii); see also 52
U.S.C. 30104(a)(1), 30104(a)(11)(C), 30104(d)(3).
\38\ See 52 U.S.C. 30104(b)(6)(B)(iii), 30104(c)(2)(B),
30104(f)(2), 30107(a)(1), 30109(a)(1), 26 U.S.C. 9003(b)-(c),
9004(d); see also 52 U.S.C. 30104(a)(11)(C), 30104(d)(3).
\39\ See, e.g., 11 CFR 104.18(g) (providing for electronic
signatures for reports), 111.4(b)(2) (complaints), 111.23(a)
(designation of counsel), 300.37(d) (certifications by certain tax-
exempt organizations), 9034.2(c) (allowing for alternative
signatures for contributors over the internet).
\40\ See, e.g., Electronic Contributor Redesignations, 76 FR
16233; see also Advisory Opinion 2013-12 (Service Employees
International Union COPE) at 3-4 (discussing Commission's history of
approving ``authorizations in a form other than the traditional
written signature, where the use of technology would not compromise
the intent of the [FECA] or Commission regulations'').
\41\ Compare 11 CFR 104.4(d)(2) (electronic certification under
penalty of perjury for reporting), 104.18(g) (same), and
109.10(e)(2)(ii) (same), with 11 CFR 111.4(b)-(c) (notarization
requirement for complaints), and 111.11 (sworn answers). See also 11
CFR 100.93(a)(3)(iv)(A), 100.93(g)(3), 102.2(a)(3),
104.3(b)(3)(vii)(B), 104.3(d)(1)(v), 300.11(d), 300.37(d).
---------------------------------------------------------------------------
To clarify that the regulatory signature requirements may generally
be met electronically, the Commission is adding a general definition of
``signature'' at 11 CFR 100.36. The new definition contains three
paragraphs.
New paragraph (a) defines ``signature'' as ``an individual's name
or mark on a writing or record that identifies the individual and
authenticates the writing or record.'' This definition draws on legal
and other dictionary definitions of ``signature.'' \42\ It also
incorporates the terms ``writing'' and ``record,'' as opposed to the
source dictionaries' use of the term ``document,'' to be consistent
with the new definitions of those terms in 11 CFR 100.34 and 100.35,
discussed above. Unlike at least one source definition,\43\ the
definition of ``signature'' here does not incorporate a subjective
``intent'' element, i.e., a requirement that a signature be affixed by
the signer with a certain intention; rather, the Commission is adopting
an objective definition with which compliance can be initially
determined on the face of the signed writing or record. New paragraph
(a) also provides that, unless otherwise specified, the definition of
``signature'' includes an ``electronic signature.''
---------------------------------------------------------------------------
\42\ See Signature, Black's Law Dictionary (11th ed. 2019)
(defining ``signature'' to include any ``name, mark, or writing used
with the intention of authenticating a document'' (citing U.C.C. 1-
201(37) and 3-401(b) and Restatement (Second) of Contracts 134
(1979))); Signature, Random House Dictionary of the English
Language, Unabridged (2nd ed. 1987) (defining ``signature'' as ``a
person's name, or a mark representing it, as signed personally or by
a deputy, as in subscribing a letter or other document'').
\43\ See Signature, Black's Law Dictionary (11th ed. 2019).
---------------------------------------------------------------------------
New paragraph (b) of 11 CFR 100.36 in turn defines an ``electronic
signature'' as ``an electronic word, image, symbol, or process that an
individual attaches to or associates with a writing or record to
identify the individual and authenticate the writing or record.'' This
definition is drawn from several sources, including Black's Law
Dictionary,\44\ the E-Sign Act,\45\ UETA,\46\ and the Commission's
interpretive rule concerning electronic redesignations of
contributions.\47\ New paragraph (b) follows all the source definitions
of ``electronic signature'' in using the terms ``symbol'' and
``process,'' as well as in requiring that the electronic signature be
attached to or associated with a writing or record. The Commission also
is including ``word'' and ``image'' as methods of electronic signature,
based on the examples in Black's Law Dictionary, to make clear that a
writing or record can be signed by these means (such as by inserting a
digital image of a person's handwritten signature). And as with new
paragraph (a), new paragraph (b) incorporates the terms ``writing'' and
``record'' to be consistent with the new definitions in 11 CFR 100.34
and 100.35. The new definition thus encompasses forms that electronic
signatures may take as new technologies emerge.
---------------------------------------------------------------------------
\44\ This dictionary defines an ``electronic signature'' as an
``electronic symbol, sound, or process that is either attached to or
logically associated with a document (such as a contract or other
record) and executed or adopted by a person with the intent to sign
the document.'' Electronic Signature, Black's Law Dictionary (11th
ed. 2019). The dictionary provides as examples ``a typed name at the
end of an email, a digital image of a handwritten signature, and the
click of an `I accept' button on an e-commerce site.'' Id.
\45\ See 15 U.S.C. 7006(5) (defining ``electronic signature'' as
``an electronic sound, symbol, or process, attached to or logically
associated with a . . . record and executed or adopted by a person
with the intent to sign the record'').
\46\ See UETA 2(8) (defining ``electronic signature'' as ``an
electronic sound, symbol, or process attached to or logically
associated with a record and executed or adopted by a person with
the intent to sign the record'').
\47\ See Electronic Contributor Redesignations, 76 FR 16233. To
the extent that this interpretive rule's approach to a ``signature''
could be construed to conflict with the new definition of
``signature,'' it is superseded.
---------------------------------------------------------------------------
The new definition intentionally differs from the source
definitions in certain respects. For example, the new definition does
not include ``sound'' as a form of electronic signature because the
Commission's current and anticipated reporting technologies would not
enable it to receive and make public audio signatures. Further, the
Commission does not distinguish between an ``electronic signature'' and
a ``digital signature.'' Black's Law Dictionary defines the latter as
having a heightened level of security, integrity, and authenticity
compared to an electronic signature,\48\ but because the Commission
utilizes other methods to ensure a heightened level of authenticity
when required (such as notarization requirements, as discussed below),
the definition of ``signature'' need not differentiate between digital
and electronic signatures.
---------------------------------------------------------------------------
\48\ See Digital Signature, Black's Law Dictionary (11th ed.
2019) (defining ``digital signature'' as ``secure, digital code
attached to an electronically transmitted message that uniquely
identifies and authenticates the sender''), Electronic Signature,
Black's Law Dictionary (10th ed. 2014) (stating that ``electronic
signature does not suggest or require the use of encryption,
authentication, or identification measures'').
---------------------------------------------------------------------------
New paragraph (b) lists as examples of electronic signatures ``a
digital image of a handwritten signature'' and ``a secure, digital code
attached to an electronically transmitted message that uniquely
identifies and authenticates the sender.'' These examples are drawn
from the definition of ``digital signature'' and examples of
``electronic signature'' in Black's Law Dictionary; the Commission
believes them to be the forms of electronic signature most likely to be
used by political committees. However, the examples are intended to be
illustrative only and not an exhaustive list.
As noted above, the new regulation provides that electronic
signatures are valid signatures ``unless otherwise specified.'' This
language allows the Commission to require more specific forms of
electronic signatures, or even to prohibit electronic signatures, in
certain circumstances. Preserving such flexibility is important
because, as new technologies develop, some forms of electronic
signatures may arise that are unreliable or otherwise not suitable for
authenticating records.
In light of the new definition of ``signature,'' the Commission is
making conforming changes to regulations that have more specific
signature requirements. For example, 11 CFR 104.4(d)(2) and
109.10(e)(2)(ii) have specified that an independent expenditure report
must be verified by one of two methods: by ``handwritten signature'' on
reports filed on paper, or by ``typing the treasurer's name'' on
reports filed by electronic mail. The Commission is revising these
provisions to allow electronically filed independent expenditure
reports to be verified by ``electronic signature'' (which might
include, but would not be limited to, typing the treasurer's name on
the reports). The Commission also is revising the electronic signature
requirement at 11 CFR 9034.2(c), which defines ``signature'' for
matchable presidential primary election payments made by credit or
debit card, and is
[[Page 201]]
making other changes to that section as described further below.\49\
---------------------------------------------------------------------------
\49\ See infra Section (E)(3).
---------------------------------------------------------------------------
New paragraph (c) of 11 CFR 100.36 provides that a ``writing or
record may be sworn, made under oath, or otherwise certified or
verified under penalty of perjury, by electronic signature.'' This
tracks the corresponding provision of the E-Sign Act, which provides
that a legal requirement for a signature to be ``acknowledged,
verified, or made under oath'' is ``satisfied if the electronic
signature of the person authorized to perform those acts . . . is
attached to or logically associated with the signature or record.''
\50\ This proposal therefore provides sufficient safeguards of
integrity and authenticity for material that must be sworn or otherwise
verified.
---------------------------------------------------------------------------
\50\ 15 U.S.C. 7001(g); see also UETA 11 (providing that
notarization, acknowledgment, verification, or oath requirement is
``satisfied if the electronic signature of the person authorized to
perform those acts . . . is attached to or logically associated with
the signature or record'').
---------------------------------------------------------------------------
Finally, new paragraph (c) also states that ``[a] writing or record
may be notarized electronically pursuant to applicable State law.'' A
number of states currently allow for electronic notarization.\51\
Commission practice currently refers to a state's law to determine the
validity of a notarization from that state. The Commission received no
comments on this aspect of the rulemaking and has determined to
continue accepting documents notarized under state law.
---------------------------------------------------------------------------
\51\ The National Association of Secretaries of State notes that
38 states currently permit some form of electronic notarization, and
34 of those have laws permitting remote electronic notarization,
while additional states and Washington, DC have issued emergency
regulations or guidance permitting remote electronic notarization
due to the COVID-19 pandemic. See Nat'l Assoc. of Secs. of State,
Remote Electronic Notarization, <a href="https://www.nass.org/initiatives/remote-electronic-notarization">https://www.nass.org/initiatives/remote-electronic-notarization</a> (last visited Nov. 9, 2023).
---------------------------------------------------------------------------
4. Revised Definition of ``File, Filed, or Filing''--11 CFR 100.19(g)
The Commission is revising the definition of ``file, filed, or
filing'' at 11 CFR 100.19 so that interested parties can more easily
communicate electronically with the Commission. The Commission also is
making conforming amendments throughout 11 CFR chapter I.
Section 100.19 has defined ``file, filed or filing'' to include
certain forms of electronic submission, but only in the context of
documents that must be filed with the Commission under 11 CFR parts
101, 102, 104, 105, 107, 108, and 109. As such, the rule has addressed
the filing of reports and statements only regarding independent
expenditures, electioneering communications, and the organization,
contributions, and disbursements of political committees. But, as
described in more detail below, the Commission's regulations also
require or provide for the submission of numerous other documents to
the Commission. Many of these current regulations regarding sending
documents to the Commission specifically refer to \52\ the Commission's
mailing address as set out in 11 CFR 1.2.\53\ This implied that the
submissions had to be made physically (such as by mail or hand-
delivery), rather than electronically.
---------------------------------------------------------------------------
\52\ The NPRM proposed removing the street address from these
provisions because at that time, each of these provisions included
the street address. However, in the interim, the Commission
published a final rule in the Federal Register, updating the
Commission's street address in 11 CFR 1.2 and replacing the
Commission's street address with a cross-reference to 11 CFR 1.2
wherever else it appeared in Title 11. Change of Address; Technical
Amendments, 82 FR 60852 (Dec. 26, 2017) (``Change of Address Final
Rule'').
\53\ See, e.g., 11 CFR 1.3(b), 111.4(a), 111.15(a), 112.1(e),
112.3(d).
---------------------------------------------------------------------------
To provide the Commission with greater flexibility to accept
documents electronically, the Commission is adding new paragraph (g) to
11 CFR 100.19. Under new paragraph (g), a document other than those
already covered by paragraphs (a) through (f) may be filed ``in person
or by mail, including priority mail or express mail, or overnight
delivery service, with the Federal Election Commission, or by any
alternative means, including electronic, that the Commission may
prescribe.'' The Commission intends to build upon this change by
adopting such procedures for receiving electronic submissions--such as
through online forms \54\ or email \55\--as the Commission determines
to be appropriate for the various categories of documents.
---------------------------------------------------------------------------
\54\ See, e.g., FEC, Searchable Electronic Rulemaking System--
Basic Search, <a href="http://sers.fec.gov/fosers">sers.fec.gov/fosers</a> (release date June 14, 2013) (web
portal for commenting on rulemakings).
\55\ See, e.g., FEC, The Advisory Opinion Process, <a href="http://www.fec.gov/law/draftaos.shtml">www.fec.gov/law/draftaos.shtml</a> (establishing email address for comments on draft
advisory opinions) (last visited Nov. 9, 2023).
---------------------------------------------------------------------------
The Commission also is revising the introductory paragraph of 11
CFR 100.19 to explicitly note the scope of new paragraph (g). This
change will not affect the existing rules on documents governed by
paragraphs (a) through (f).
Given that neither FECA nor the Funding Acts require paper mailing
addresses, the Commission is further amending 11 CFR 100.19(a) to
delete the cross-reference to the street address for the Commission.
Similarly, the Commission is making conforming amendments
corresponding to those discussed in the NPRM by replacing the
references to the Commission's street address as set out in 11 CFR 1.2
\56\ in a number of regulations that refer to submissions to the
Commission--or to a particular Commission officer, such as the Chief
FOIA Officer--with references to ``filing'' and Sec. 100.19(g), as
appropriate, and by removing the references to the Commission's street
address from other regulations.\57\ These regulations are 11 CFR
1.3(b), 1.4(a), 4.5(a)(4)(i), 4.5(a)(4)(iv), 4.7(b)(1), 4.8(c),
5.5(a),\58\ 5.5(c), 6.170(d)(3), 6.170(i), 104.2(b), 104.3(e)(5),
104.21(c)(3),\59\ 111.4(a), 111.15(a), 111.16(c), 112.1(e), 112.3(d),
and 200.2(b)(5).
---------------------------------------------------------------------------
\56\ As discussed in note 50, supra, the Commission has already
replaced the street address in these provisions with a cross-
reference to 11 CFR 1.2. See Change of Address Final Rule, 82 FR at
60852. Thus, these final rules replace the cross-references to Sec.
1.2, rather than the street address itself.
\57\ Because the definitions in part 100 of the Commission's
regulations generally do not apply to parts 1-8 of the regulations,
the new references to ``filing'' in parts 1-8 explicitly cross-
reference new 11 CFR 100.19(g).
\58\ In the NPRM, the Commission proposed retaining the
reference to ``999 E Street NW'' in 11 CFR 5.5(a) along with the
hours of the public disclosure division. However, given that the
Commission subsequently revised this provision by replacing the
street address with a cross-reference to 11 CFR 1.2, the Commission
is removing the cross-reference and office hours.
\59\ In the NPRM, the Commission did not include the three
provisions of part 104 now included in this list. The Commission has
decided to remove the cross-references to the street address as set
out in Sec. 1.2 from these three provisions for the same reasons it
is being removed from the other listed provisions.
---------------------------------------------------------------------------
For the same reasons, the Commission also is amending other
regulatory requirements relating to communications by mail:
<bullet> Sections 4.5(a)(4)(i) and 4.8(b) require that certain
information be included ``on the envelope'' in which a FOIA request or
appeal is sent to the Commission. As revised, these regulations will
state that such information must be clearly indicated on the ``envelope
or subject line, or in a similarly prominent location'' of the
communication.
<bullet> Section 112.4(g) provides that an advisory opinion must be
``sent by mail, or personally delivered'' by the Commission to the
person who requested it. As revised, the provision will require only
that the advisory opinion ``be provided'' by the Commission to the
requestor, so as to encompass electronic transmission of the advisory
opinion.
<bullet> Section 102.6(c)(2) provides that a solicitation of
contributions to a separate segregated fund may be included ``in'' a
bill for membership
[[Page 202]]
dues. Because such bills are now sometimes delivered electronically,
rather than in paper form, the Commission is changing ``in'' to
``with.'' The substantive requirements for soliciting contributions to
a separate segregated fund are not changing.\60\
---------------------------------------------------------------------------
\60\ The twice-annual solicitation of employees outside of the
restricted class may be conducted only by mail sent to the
employee's residence. See 52 U.S.C. 30118(b)(4)(B); 11 CFR 114.6(c).
Thus, the Commission is not amending the reference to ``mail'' in
section 114.6(c), and the change to 11 CFR 102.6(c)(2), which allows
for solicitations by means other than mail, does not apply to these
twice-yearly solicitations.
---------------------------------------------------------------------------
<bullet> In Sec. 114.1(g), which provides a non-exhaustive list of
the manner in which a solicitation may be made, the Commission is
adding ``emails'' to the existing list of ``mailings, oral requests . .
. , and hand distribution of pamphlets'' to recognize that
solicitations may be made electronically.\61\
---------------------------------------------------------------------------
\61\ The Commission is not adding an electronic reference to the
non-exhaustive list at 11 CFR 114.1(f) of the manner in which a
solicited contribution may be received because the list already
includes payroll deduction, which may be accomplished
electronically.
---------------------------------------------------------------------------
<bullet> In Sec. 116.9(a)(2), which describes what constitutes a
political committee's reasonable diligence in attempting to locate a
creditor, the Commission is adding email as a valid means of attempting
to contact the creditor.
<bullet> Sections 9003.1(b)(7) and 9033.1(b)(8) require submission
of the ``name and mailing address'' of the person entitled to receive
public fund payments on behalf of a candidate. The Commission is
amending these to require the person's email address, as well.
To allow for electronic filing, notice, and service of documents
and records in the Commission's enforcement process, the Commission is
revising part 111 of its regulations. First, the Commission is removing
or limiting requirements to file multiple copies of documents where
multiple copies are no longer necessary. In 11 CFR 111.4(a), the
Commission is clarifying that the requirement for a complainant to file
three copies of a complaint applies to non-electronic filings only. In
11 CFR 111.15(a) and 111.16(c), the Commission is deleting the
provisions that state that a respondent ``should . . . if possible''
file multiple copies of a motion or brief.
Second, the Commission is revising the following regulations that
currently refer to ``enclos[ing]'' a copy of a document: 11 CFR
111.5(a), 111.5(b), and 111.16(b). As revised, the regulations state
that the Commission shall ``provide'' a copy of the relevant document.
Third, the Commission is revising 11 CFR 111.13(c) and (d), which
govern the service of subpoenas, orders, and notifications, to add
explicit electronic service options. The regulations currently allow
for service by a number of means, including by mail, in person, and
``by any other method whereby actual notice is given.'' The Commission
is revising this last clause to read ``by any other method, including
electronically, whereby actual notice is given.'' \62\
---------------------------------------------------------------------------
\62\ The Commission is not making any corresponding changes to
11 CFR 111.2(c)--which adds three days to each service period under
part 111 for ``any paper'' served ``by mail''--because electronic
submissions are essentially immediate and therefore do not require
extensions to account for delivery time.
---------------------------------------------------------------------------
Finally, at 11 CFR 111.23(a)(1), the Commission is adding ``email
address'' to the list of information about respondent's counsel that
must be provided to the Commission.
The Commission intends these revisions to simplify and modernize
the process by which it interacts with respondents and complainants
during the enforcement process by providing options for electronic
communications.
D. Electronic Contributions
The Commission is also revising its regulations to address
electronic contributions. These revisions fall into three general
categories that correspond to three stages in the electronic flow of
funds from a contributor to a political committee: (1) when the
contributor authorizes the transaction; (2) when the entity processing
the payment (the ``payment processor'') \63\ transfers the contribution
to the recipient political committee; and (3) when the recipient
political committee deposits the funds into its campaign depository.
The Commission is revising its rules in these areas in light of its
understanding of the standards and practices that vendors and payment
processors use to process payments made by check, credit card, debit
card, prepaid card, and other payment methods; the methods by which
vendors and payment processors verify a payor's identity, attribute
payments, and collect, maintain, and transmit transaction records; \64\
and the Commission's understanding of the operators and users of
established and emerging electronic payment platforms--such as PayPal,
Venmo, Square, Zelle, and other electronic wallet, P2P, mobile app, and
social media payment platforms.
---------------------------------------------------------------------------
\63\ Payment processors include, for example, such entities as
First Data, PayPal, BitPay, m-Qube, and other commercial entities
that process and transmit traditional, online, or text-message
payments in the ordinary course of business.
\64\ See, e.g., Online Person-to-Person (P2P), Account-to-
Account Payments and Electronic Cash, Fed. Fin. Inst. Examination
Council, <a href="https://ithandbook.ffiec.gov/it-booklets/retail-payment-systems/payment-instruments-clearing-and-settlement/card-based-electronic-payments/online-person-to-person-p2p-account-to-account-a2a-payments-and-electronic-cash.aspx">https://ithandbook.ffiec.gov/it-booklets/retail-payment-systems/payment-instruments-clearing-and-settlement/card-based-electronic-payments/online-person-to-person-p2p-account-to-account-a2a-payments-and-electronic-cash.aspx</a> (last visited Nov. 30, 2023).
---------------------------------------------------------------------------
1. When a Contributor Authorizes a Transaction: Contribution Is
``Made'' and ``Received''
For purposes of the contribution limits, Commission regulations
specify that a contribution is made ``when the contributor relinquishes
control over the contribution''; control is relinquished when the
contribution ``is delivered by the contributor to the candidate, to the
political committee, or to an agent of the political committee.'' \65\
The regulations further specify that a contribution that is mailed is
considered to be made on the date of the postmark.\66\
---------------------------------------------------------------------------
\65\ 11 CFR 110.1(b)(6); see also id. 110.2(b)(6).
\66\ Id. 110.1(b)(6); see also id. 110.2(b)(6).
---------------------------------------------------------------------------
Although the regulations are silent as to when electronic
contributions are ``made,'' the Commission has addressed the issue of
when credit card contributions are made in several advisory
opinions.\67\ Generally, the Commission has concluded that a credit
card contribution is made ``when the credit card or credit card number
is presented, because at that point `[t]he contributor is strictly
obligated by the card agreement to make payment of the credit card bill
and incurs substantial penalties with possible collection fees and
cancellation of future credit privileges for nonpayment.' '' \68\
---------------------------------------------------------------------------
\67\ See Advisory Opinion 2012-07 (Feinstein for Senate);
Advisory Opinion 2008-08 (Zucker); Advisory Opinion 1991-01
(Deloitte & Touche PAC); Advisory Opinion 1990-14 (AT&T).
\68\ Advisory Opinion 2008-08 (Zucker) at 3 (quoting Advisory
Opinion 1990-14 (AT&T)); see also Advisory Opinion 2012-07
(Feinstein for Senate) at 5.
---------------------------------------------------------------------------
The Commission is revising 11 CFR 110.1(b)(6) and 110.2(b)(6) by
adding a description of when electronic contributions--credit card or
otherwise--are considered to be ``made.'' As revised, the regulations
build on the Commission's conclusions in the above-referenced advisory
opinions by providing that a contribution made in an electronic
transaction ``is considered to be made when the contributor authorizes
the transaction.'' The revised regulations do not provide examples of
specific types of ``electronic transactions''--such as the physical
presentation of a debit card; the entry of a credit or prepaid card
number in an online form, in person, or by telephone; the transfer of a
bitcoin; or the sending of a text message--because the Commission has
[[Page 203]]
determined that examples distinguishing between electronic and non-
electronic transactions are not necessary; in fact, examples tied to
specific technologies might be unduly limiting or risk becoming rapidly
obsolete. The Commission does not intend for the new regulation to
alter the existing approach the Commission takes in determining the
dates on which electronic payments are made pursuant to recurring
monthly payment authorizations.\69\
---------------------------------------------------------------------------
\69\ For example, Advisory Opinion 1991-01 (Deloitte & Touche
PAC) concerned a political committee's proposal to obtain
contributors' credit card authorizations several months before
charging their credit cards for contributions. The Commission
concluded that, ``[i]n view of the contributor's ability to revoke
the authorization'' during this time period, each contributor would
be deemed to relinquish control over a contribution, and thus to
make the contribution, when the credit card was charged, rather than
when the authorization occurred. Advisory Opinion 1991-01 (Deloitte
& Touche PAC) at 4.
---------------------------------------------------------------------------
Like the existing regulations regarding when a contribution is
``made,'' the regulations concerning when a contribution is
``received'' focus on possession. The current regulations provide that
the ``date of receipt'' of a contribution is the date a person
``obtains possession of the contribution.'' \70\ In the context of
credit card contributions, the Commission has stated that a
contribution is received when the contributor's authorization to charge
the credit card is received. ``Inasmuch as such authorizations may be
presented to [the recipient's] bank in order to credit [the
recipient's] account, the receipt of such an authorization is the
equivalent of the receipt of a check that may be deposited and, thus,
the date this occurs is the date upon which [the recipient] obtains
possession of the contribution.'' \71\
---------------------------------------------------------------------------
\70\ 11 CFR 102.8(a); see also id. 102.8(b)(2) (same description
of ``receipt''); id. 102.17(c)(3)(iii) (providing that political
committee receives contribution through joint fundraising committee
on date contribution is received by committee's joint fundraising
representative), 9034.8(c)(4)(iii) (same).
\71\ Advisory Opinion 1990-04 (American Veterinary Medical
Association PAC) at 2-3; see also Advisory Opinion 2012-35 (Global
Transaction Services Group) (determining that contributions made by
credit or debit card are received as of date credit or debit card
holder authorizes card to be charged with contribution); Advisory
Opinion 2012-17 (Red Blue T et al.) at 6 (``m-Qube I'') (``Under m-
Qube's proposed factoring arrangement, which is similar to how
credit card contributions are handled, the Commission considers the
contributions to be received at the time of the opt-in, as opposed
to when the bill is paid.''); FEC, Campaign Guide: Congressional
Candidates and Committees 25 (2021), <a href="https://www.fec.gov/resources/cms-content/documents/candgui.pdf">https://www.fec.gov/resources/cms-content/documents/candgui.pdf</a>.
---------------------------------------------------------------------------
Because a commercial payment processor or the recipient political
committee may receive the contributor's authorization before obtaining
actual possession of the contributor's funds, the Commission is
revising 11 CFR 102.8(a) and (b)(2) to explicitly provide that the date
of receipt is the date that a person either obtains possession of a
contribution ``or, for a contribution made in an electronic transaction
in which the receipt of authorization precedes the receipt of funds,
obtains the contributor's authorization of the transaction.'' The
Commission is not including in the regulatory text any technology-
specific examples of when a contribution is ``received'' for the same
reasons given above for not including technology-specific examples of
when a contribution is ``made.''
2. Commercial Payment Processors: Revisions to the Conduit and
Forwarding Rules
Many contributions are first received not by the ultimate recipient
political committees, but by commercial entities that process the
payments. In several advisory opinions, the Commission has addressed
the application of its regulations to the receipt of contributions via
commercial entities that process contributions electronically--
including entities that process contributions made by text message \72\
or via web-based platforms.\73\ The Commission is revising its
forwarding regulations at 11 CFR 102.8 and its earmarking regulations
at 11 CFR 110.6 to codify some of the conclusions of these advisory
opinions.
---------------------------------------------------------------------------
\72\ See, e.g., Advisory Opinion 2012-30 (Revolution Messaging);
Advisory Opinion 2012-28 (CTIA--The Wireless Association) (``CTIA
II''); Advisory Opinion 2012-26 (Cooper for Congress et al.) (``m-
Qube II''); Advisory Opinion 2012-17 (m-Qube I); Advisory Opinion
2010-23 (CTIA--The Wireless Association) (``CTIA I'').
\73\ See, e.g., Advisory Opinion 2018-05 (CaringCent); Advisory
Opinion 2017-06 (Stein and Gottlieb); Advisory Opinion 2014-07
(Crowdpac); Advisory Opinion 2012-35 (Global Transaction Services
Group); Advisory Opinion 2012-22 (skimmerhat); Advisory Opinion
2012-09 (Points for Politics); Advisory Opinion 2011-19
(GivingSphere); Advisory Opinion 2011-06 (Democracy Engine et al.);
Advisory Opinion 2007-04 (Atlatl); Advisory Opinion 2006-08
(Brooks).
---------------------------------------------------------------------------
a. Revisions to Forwarding Rule, 11 CFR 102.8
Section 102.8 implements FECA's requirement that ``[e]very person
who receives a contribution'' for a political committee must forward
the contribution and information about the contributor to the recipient
political committee within either 10 or 30 days, depending on whether
the recipient is an authorized or unauthorized committee and the amount
of the contribution.\74\ Under the revised definition of ``receipt,''
discussed above, this forwarding requirement is triggered when a
commercial payment processor receives a contributor's authorization to
make a contribution, even if the payment processor has not yet received
the contributor's funds.
---------------------------------------------------------------------------
\74\ 52 U.S.C. 30102(b)(2).
---------------------------------------------------------------------------
Because this scenario occurs frequently in modern electronic
transactions,\75\ the Commission is adding a new paragraph (d) to 11
CFR 102.8 to make clear that payment processors must satisfy FECA's
forwarding requirement within 10 or 30 days of receiving a
contributor's authorization of a contribution, even if the processor
has not yet received the contributor's funds. Under new paragraph (d),
a payment processor will satisfy the forwarding requirements of 52
U.S.C. 30102(b) if it transmits funds and contributor information to a
recipient political committee within 10 or 30 days, as applicable, of
the contributor's authorization of the transaction. To ensure that a
payment processor does not make contributions to candidates and
committees by transmitting the funds, the payment processor must meet
this forwarding requirement in its ordinary course of business.\76\ The
revised rule thus reflects how modern transactions are conducted and
ensures that FECA's forwarding requirement is satisfied when
contributors and political committees make and receive contributions
electronically.\77\
---------------------------------------------------------------------------
\75\ For example, when a credit card holder uses a credit card
to purchase goods or services from a merchant, the merchant often
receives payment for the goods and services before the credit card
holder is even billed. See, e.g., Visa, Frequently Asked Questions--
How do Visa transactions work?, <a href="https://usa.visa.com/run-your-business/accept-visa-payments.html">https://usa.visa.com/run-your-business/accept-visa-payments.html</a> (follow ``Learn how Visa
transactions work'' hyperlink and click play arrow) (last visited
Nov. 9, 2023). Similarly, in certain text message transactions,
payment processors transmit funds to merchants before the mobile
phone users pay bills with associated charges. See Advisory Opinion
2010-23 (CTIA I); Advisory Opinion 2012-17 (m-Qube I).
\76\ See, e.g., 11 CFR 116.3; Advisory Opinion 2012-26 (m-Qube
II); Advisory Opinion 2012-31 (AT&T).
\77\ This revision codifies the application of the forwarding
requirements of 52 U.S.C. 30102(b) and 11 CFR 102.8 to contributions
made by text message and web-based platforms, as set forth in
Advisory Opinion 2012-26 (m-Qube II). The revision supersedes
Advisory Opinion 2012-17 (m-Qube I) to the extent it concluded that
contributions made by text message were not subject to the
forwarding requirements. Factored payments from payment processors
to political committees as described in Advisory Opinion 2012-17 (m-
Qube I) and Advisory Opinion 2012-26 (m-Qube II) are one means of
satisfying the forwarding requirements if made within 10 or 30 days
of the contributor's authorization, as applicable. See 52 U.S.C.
30102(b); 11 CFR 102.8; see also Advisory Opinion 2012-35 (Global
Transaction Services Group) at 4 (approving proposal where processor
transmitted contributions to political committees within ten days);
Advisory Opinion 2010-23 (CTIA I) at 6-7 (rejecting proposal to
process contributions by text message because, in part,
contributions would not be forwarded to recipient committees within
timeframe required by 52 U.S.C. 30102(b) and 11 CFR 102.8).
---------------------------------------------------------------------------
[[Page 204]]
The Commission is not adopting regulatory language to define
``ordinary course of business,'' but the term will be construed
consistently with the definition of the same term in 11 CFR 116.3(c),
which looks to the vendor's past practices, as well as industry custom,
to determine whether the vendor acted in the ordinary course of
business.
The Commission received a comment in response to the NPRM regarding
direct carrier billing (``DCB''), which is a particular form of
commercial payment processing that enables customers to pay for goods
and services by charging them to a wireless bill. The comment asked the
Commission to adopt a detailed rule specifically to address DCB,
proposing, for example, that a contribution that is forwarded by DCB
should be deemed ``made'' only ``when a wireless company transfers
funds from its accounts to a connection aggregator.'' \78\ As the
Commission has noted throughout this rulemaking, however, the
Commission is revising its regulations in part to move away from
technology-specific rules, in favor of technology-neutral language.\79\
The Commission therefore declines to promulgate regulatory text that
would govern this single payment practice. Any person uncertain as to
the effect of the revised regulations on a particular technology may
seek additional guidance through the Commission's advisory opinion
process.
---------------------------------------------------------------------------
\78\ CTIA, Comment at 16 (Dec. 2, 2016), <a href="http://sers.fec.gov/fosers/showpdf.htm?docid=354000">http://sers.fec.gov/fosers/showpdf.htm?docid=354000</a>.
\79\ The same commenter also acknowledged in a more recent
comment that ``a shift in mobile fundraising by political committees
. . . has obviated the need to charge political contributions to a
wireless user's bill and to process the contributions by DCB.''
CTIA, Comment at 3 (Oct. 11, 2022), <a href="https://sers.fec.gov/fosers/showpdf.htm?docid=420616">https://sers.fec.gov/fosers/showpdf.htm?docid=420616</a>.
---------------------------------------------------------------------------
b. Revisions to Earmarking Rule, 11 CFR 110.6
FECA provides that, for purposes of contribution limitations, ``all
contributions made by a person, either directly or indirectly . . . ,
including contributions which are in any way earmarked or otherwise
directed through an intermediary or conduit to such candidate, shall be
treated as contributions from such person to such candidate.'' \80\ The
Commission defines ``earmarked'' to mean ``a designation, instruction,
or encumbrance, whether direct or indirect, express or implied, oral or
written, which results in all or any part of a contribution . . . being
made to . . . a clearly identified candidate or a candidate's
authorized committee.'' \81\ Because FECA prohibits corporations from
making contributions to candidate committees,\82\ and because persons
prohibited from making contributions and expenditures are also
prohibited from being conduits or intermediaries who receive and
forward earmarked contributions to a candidate,\83\ a corporation
generally may not receive and forward earmarked contributions.
---------------------------------------------------------------------------
\80\ Thus, earmarked contributions are ``subject to the original
contributors' limits on contributions to the candidate.'' Affiliated
Committees, Transfers, Prohibited Contributions, Annual Contribution
Limitations and Earmarked Contributions, 54 FR 34098, 34105 (Aug.
17, 1989). 52 U.S.C. 30116(a)(8).
\81\ 11 CFR 110.6(b)(1).
\82\ See 52 U.S.C. 30118.
\83\ 11 CFR 110.6(b)(2).
---------------------------------------------------------------------------
Commission regulations provide for certain exceptions to the
earmarking rule,\84\ but these exceptions do not squarely apply to
payments made through online processors that the Commission has
addressed in several advisory opinions. In some of these opinions, the
Commission concluded that the transactions were permissible because the
corporations that processed the contributions were acting as commercial
vendors to the political committee.\85\ In other opinions, the
Commission approved the transactions under the rationale that the
corporations were providing services to the contributors.\86\ And in
Advisory Opinion 2012-22 (skimmerhat), the Commission determined
expressly that contributions made through a for-profit corporation's
website were ``direct contributions to the candidate . . . via a
commercial processing service'' and ``not contributions to an
intermediary and earmarked for a candidate.'' \87\ The Commission
explained that ``certain electronic transactional services . . . do not
run afoul of the prohibition on corporations acting as a conduit or
intermediary for earmarked contributions because certain electronic
transactional services are so essential to the flow of modern commerce
that they are akin to `delivery services, bill-paying services, or
check writing services.' '' \88\
---------------------------------------------------------------------------
\84\ See 11 CFR 110.6(b)(2)(i).
\85\ See Advisory Opinion 2021-10 (Retail Benefits, Inc.);
Advisory Opinion 2018-05 (CaringCent); Advisory Opinion 2007-04
(Atlatl); Advisory Opinion 2004-19 (<a href="http://DollarVote.org">DollarVote.org</a>); see also
Advisory Opinion 2012-09 (Points for Politics).
\86\ See Advisory Opinion 2021-07 (PACMS); Advisory Opinion
2019-04 (Prytany); Advisory Opinion 2017-06 (Stein and Gottlieb);
Advisory Opinion 2011-19 (GivingSphere); Advisory Opinion 2011-06
(Democracy Engine); Advisory Opinion 2006-08 (Brooks).
\87\ Advisory Opinion 2012-22 (skimmerhat) at 10.
\88\ Id. (citing Advisory Opinion 2011-06 (Democracy Engine));
see also Advisory Opinion 2016-08 (<a href="http://eBundler.com">eBundler.com</a>) at 8 (``where a
commercial vendor provides contribution processing services to
contributors, the contributions made through the platform . . . are
. . . direct contributions to the candidate . . . made via a
commercial processing service'' and not earmarked contributions);
Advisory Opinion 2014-07 (Crowdpac) (approving commercial
processor's transmission of contributions to candidates); ActBlue,
Comment at 5, <a href="http://sers.fec.gov/fosers/showpdf.htm?docid=297360">sers.fec.gov/fosers/showpdf.htm?docid=297360</a> (stating
that without electronic payment processors, ``committees would not
be able to raise campaign funds on the internet or by credit card at
all'').
---------------------------------------------------------------------------
In the NRPM, the Commission proposed two alternatives to amend 11
CFR 110.6(b) by exempting commercial payment processors from the
definition of ``conduit or intermediary'' in 11 CFR 110.6(b)(2).
Proposed alternatives A and B both would have exempted ``commercial
payment processors'' from the earmarking rule, defining a ``commercial
payment processor'' as any person whose usual and normal business is to
process payments and who processes payments to candidates and
authorized committees in the ordinary course of business; proposed
alternative A would have additionally required that such a processor
not exercise direction or control over the choice of the recipient
candidate or authorized committee. The Commission also asked, though,
whether it should bring Sec. 110.6 in line with the flow of modern
commerce by revising the definition of ``earmarked'' at 11 CFR
110.6(b)(1)--rather than revising the definition of ``conduit or
intermediary'' at 11 CFR 110.6(b)(2)--by, for example, clarifying that
the definition of ``earmark'' does not generally include a
contributor's authorization to initiate an electronic transaction.\89\
---------------------------------------------------------------------------
\89\ NPRM, 81 FR 76427.
---------------------------------------------------------------------------
After further consideration, the Commission has decided to adopt
this latter approach to revising the earmarking rule. Specifically, the
Commission is revising Sec. 110.6 to clarify in the definition of
``earmarked'' in 11 CFR 110.6(b)(1) that a ``contributor's
authorization that a commercial payment processor, whose usual and
normal business is to process payments, transmit funds from the
contributor to the designated candidate or authorized committee in the
commercial payment processor's ordinary course of business does not in
itself constitute an earmark.'' This final rule adopts the description
of ``commercial payment processor'' proposed in both alternatives A and
B, i.e., an entity whose usual and normal business is to process
payments and which does so in the ordinary course of business. However,
because
[[Page 205]]
the new rule presents an exception to the definition of ``earmark''
rather than an exception to the definition of ``conduit or
intermediary,'' the new rule focuses on the contributor's authorization
of the transaction rather than on the payment processor's actions. This
approach is consistent with the changes the Commission is making to
``authorization'' of transactions in 11 CFR 102.8, discussed above.
As mentioned in the NPRM, the new rule clarifies that a
contributor's authorization to initiate an electronic transaction
through a payment processor does not ``in itself'' constitute an
earmark. This regulatory language is intended to recognize that a
contribution that is otherwise earmarked within the meaning of the
Commission's regulations is not excluded from treatment as an earmark
merely because the transaction includes an authorization to a payment
processor. The Commission anticipates that specific applications of the
revised definition of ``earmark,'' including instances where a
processor exercises direction or control over the contribution, will be
informed by the Commission's existing precedents.
The term ``commercial payment processors'' is not intended to
distinguish between persons who process contributions as a service to
contributors and those who process contributions as a service to
candidates and authorized committees. Thus, the term encompasses
processors that transmit funds from wireless service providers to
recipient committees, as well as online payment systems such as PayPal
and Square, and the requestors in the advisory opinions in which the
Commission has approved electronic payment processing.\90\ The
Commission anticipates, however, that the distinction will remain
relevant to determine whether fees associated with contributions made
through commercial payment processors are considered part of the
contributed amount. As the Commission has explained in several advisory
opinions, where a contributor's payment of a fee would ``relieve the
recipient political committee[ ] of a financial burden [it] would
otherwise incur,'' the fee would be considered a contribution.\91\
---------------------------------------------------------------------------
\90\ Because the new rule does not turn on the incorporation
status of a payment processor, it does not affect the ability of a
limited liability company that opts to be treated like a partnership
for tax purposes to process contributions to candidates in the
ordinary course of business. See Advisory Opinion 2012-09 (Points
for Politics).
\91\ See, e.g., Advisory Opinion 2017-06 (Stein and Gottlieb) at
5; Advisory Opinion 2015-15 (<a href="http://WeSupportThat.com">WeSupportThat.com</a>) at 5 (quoting
Advisory Opinion 2014-07 (Crowdpac) and Advisory Opinion 2011-06
(Democracy Engine)).
---------------------------------------------------------------------------
The Commission intends the revision to 11 CFR 110.6(b)(1) to
clarify and codify its existing guidance on the issue, and thus to
encourage the use of evolving and emerging technological innovations to
process contributions electronically.
3. When a Political Committee Deposits the Contribution: Campaign
Depositories, Merchant Accounts, and Recordkeeping
Once a political committee has received a contribution, it must
deposit that receipt in an account at a campaign depository within ten
days.\92\ The campaign depository must be a state bank, federally
chartered depository institution, or depository institution with
accounts insured by certain federal agencies.\93\
---------------------------------------------------------------------------
\92\ 52 U.S.C. 30102(h)(1); 11 CFR 103.3(a).
\93\ See 52 U.S.C. 30102(h)(1); 11 CFR 103.2; see also 11 CFR
102.2(a)(1)(vi) (disclosure of campaign depositories).
---------------------------------------------------------------------------
The Commission is revising several regulations to address issues
related to the deposit into campaign depositories of contributions made
electronically. First, the Commission is revising 11 CFR 103.3(a) to
clarify the campaign depository requirements for joint merchant
accounts. Second, the Commission is revising 11 CFR 102.9(a)(4) and
9036.1(b)(4) to address recordkeeping related to the electronic
transfer of contributions from a payment processor to a political
committee's campaign depository.
a. Campaign Depositories for Joint Merchant Accounts--11 CFR 103.3
Many political committees and payment processors use merchant
accounts to process contributions. As one commenter noted in response
to the ANPRM: ``In order to accept credit card contributions, the
committee must have a merchant account with the payment processor which
is connected to the website on the contribution end and to a specific
bank account on the processing end.'' \94\ The commenter characterized
the merchant account system that is used for payment transfers as
``nothing but an accounting tool which operates purely as a pass-
through.'' \95\
---------------------------------------------------------------------------
\94\ ActBlue, Comment at 2, <a href="http://sers.fec.gov/fosers/showpdf.htm?docid=297360">sers.fec.gov/fosers/showpdf.htm?docid=297360</a>.
\95\ Id. at 4.
---------------------------------------------------------------------------
Merchant accounts operated and controlled by a payment processor
may contain contributions for several different political
committees.\96\ The Commission has indicated that a political committee
receiving funds through one of these merchant accounts should report
and treat the merchant account as a campaign depository account.\97\
---------------------------------------------------------------------------
\96\ See Advisory Opinion 1995-34 (Politechs) n.6 (describing
processing of contributions for multiple committees through one
merchant account).
\97\ Id; see also Advisory Opinion 1999-22 (Aristotle
Publishing) (approving proposal under which recipient political
committees would report payment processor's FDIC-insured merchant
account through which their contributions flowed as campaign
depository accounts); Advisory Opinion 2012-07 (Feinstein for
Senate) at 5 n.9 (reaffirming that ``joint merchant account'' of
type described in Advisory Opinion 1999-22 (Aristotle Publishing) is
campaign depository).
---------------------------------------------------------------------------
The Commission has now reconsidered its earlier guidance that
political committees report the joint merchant accounts through which
their contributions flow as their own campaign depository accounts. The
Commission is not convinced of the disclosure or compliance value of
reporting a third party's pass-through account, which the recipient
political committee does not own, operate, or control, as the
committee's own account.\98\ The Commission is therefore amending 11
CFR 103.3(a), which governs the deposit of receipts in campaign
depositories, to provide that contributions deposited in the ordinary
course of business in a merchant account of a payment processor
described in new 11 CFR 102.8(d) are not ``receipts'' of the recipient
political committee, but are, instead, contributions to be forwarded by
the processor under 11 CFR 102.8.\99\ Together with the revisions to
Sec. 102.8 discussed above, this amendment aims to ensure that
electronic payments passing through merchant accounts comply with
FECA's forwarding requirements, while also adapting the campaign-
depository rule to account for the ways in which electronic payments
differ from the cash and check contributions that predominated when
those requirements were enacted.
---------------------------------------------------------------------------
\98\ See Advisory Opinion 2017-02 (War Chest) (concluding that
committee need not report as campaign depositories those accounts
held by trust in sub-custodian bank accounts in trust's name and
over which committee has no control); ActBlue, Comment at 4,
<a href="http://sers.fec.gov/fosers/showpdf.htm?docid=297360">sers.fec.gov/fosers/showpdf.htm?docid=297360</a> (noting that merchant
accounts are standard aspect of credit card processing and arguing
that therefore ``there is no need to treat merchant accounts as
campaign depositories which must be registered with the
Commission'').
\99\ For ease of reading, the Commission is also dividing Sec.
103.3(a) into two subparts to address the two distinct issues
(receipts and disbursements) addressed therein.
---------------------------------------------------------------------------
The new merchant account regulation applies to merchant accounts
held in
[[Page 206]]
the ordinary course of business by payment processors described in new
11 CFR 102.8(d) and not, therefore, to accounts of political
committees. Thus, if a political committee administers or otherwise
controls a merchant account, that account constitutes and must be
reported as a campaign account as it always has.
In conjunction with the change to 11 CFR 103.3(a), the Commission
is superseding Advisory Opinion 1995-34 (Politechs), Advisory Opinion
1999-22 (Aristotle Publishing), and Advisory Opinion 2012-07 (Feinstein
for Senate), to the extent that these advisory opinions interpreted
FECA as requiring political committees to treat joint merchant accounts
over which the recipient political committees exercise no control as
their own campaign depository accounts.
b. Recordkeeping--11 CFR 102.9(a)(4) and 9036.1(b)(4)
As noted above, FECA and Commission regulations require any person
who receives a contribution for or on behalf of a political committee
to forward the contribution and information about the contributor to
the political committee within a certain period of time.\100\ The
Commission has seen, through its auditing function, that committees
often receive contributions separately from contributors' information;
that is, payment processors often forward contributions as an
aggregated amount but forward information about each individual
contributor separately. Because of this, marrying individual
contributor information with the recipient political committee's
records of receipts and deposits can be a challenge when committees are
audited.
---------------------------------------------------------------------------
\100\ 52 U.S.C. 30102(b)(2); 11 CFR 102.8(a).
---------------------------------------------------------------------------
To address these challenges, the Commission is revising 11 CFR
102.9(a)(4). Section 102.9(a)(4) currently requires political
committees to maintain, for each contribution that they receive in
excess of $50, either (i) a full-size photocopy of the check or written
instrument, or (ii) a digital image of the check or written instrument.
As revised, paragraphs (4)(i) and (4)(ii) are being replaced with a new
paragraph (4), which requires political committees to maintain a
``record'' of each contribution received. For checks or written
instruments in excess of $50, the revised rule still requires
treasurers to maintain an image of the instrument. For all
contributions, the revised rule adds a requirement that a record of the
receipt must include sufficient information associating that
contribution with its deposit in the political committee's campaign
depository, such as a batch number. The revised rule also removes the
requirement that committees provide the Commission with the electronic
means to read such records because that requirement appears in the new
definition of ``record'' discussed above.
The Commission is adopting a similar revision to the recordkeeping
provision at 11 CFR 9036.1(b)(4), which applies to bank documentation
of deposits of publicly matched contributions. Section 9036.1(b)(4)
requires a candidate to submit ``bank documentation, such as bank-
validated deposit slips or unvalidated deposit slips accompanied by the
relevant bank statements, which indicate that the contributions were
deposited into a designated campaign depository.'' The Commission is
adding, after ``relevant bank statements,'' language that would apply
to electronic deposits: ``or, for deposits made electronically,
information associating contributions to their deposit in the
designated campaign depository, such as a batch number.''
E. Other Considerations in Electronic Contributions and Disbursements
The Commission is revising other regulations to modernize
requirements concerning the receipt of ``currency'' and ``cash''; the
receipt, disbursement, and transfer of funds; the records of
contributions eligible for public matching funds; and the designation
and attribution of contributions in light of electronic transactions
and records.
1. ``Currency'' and ``Cash''--11 CFR 110.4
The term ``contribution'' includes gifts, advances, and deposits of
``money'' by any person for the purpose of influencing a federal
election.\101\ The term ``money'' includes ``currency of the United
States or of any foreign nation,'' as well as checks, money orders, and
any other negotiable instrument payable on demand.\102\
---------------------------------------------------------------------------
\101\ 52 U.S.C. 30101(8)(A)(i); 11 CFR 100.52(a); see also 52
U.S.C. 30101(9)(A)(i); 11 CFR 100.111(a) (corresponding provisions
for the term ``expenditure'').
\102\ 11 CFR 100.52(c); see also id. 100.111(d) (corresponding
provision for expenditures).
---------------------------------------------------------------------------
The legislative history of FECA indicates that Congress was
particularly concerned about the role of cash in federal elections. As
one legislator noted, ``cash offers too facile a medium for unethical
and illegal activities''; its ``untraceability'' and ``easy
transferability'' were of particular concern.\103\ Thus, Congress
limited contributions of currency to $100.\104\ Commission regulations
also prohibit the use in federal elections of any portion of an
anonymous ``cash'' contribution that exceeds $50.\105\
---------------------------------------------------------------------------
\103\ 120 Cong. Rec. H7832 (daily ed. Aug. 7, 1974) (statement
of Rep. Boland).
\104\ 52 U.S.C. 30123; see also 11 CFR 110.4(c) (also referring
to such contributions as ``cash''), 9034.3(j) (disallowing matching
funds for contributions of currency of United States or foreign
country).
\105\ 11 CFR 110.4(c)(3); see also 52 U.S.C. 30102(c)(2)
(requiring name and address of contributors for contributions over
$50).
---------------------------------------------------------------------------
The Commission invited comment several times on payment methods
that share some of the characteristics of cash and received only a few
comments addressing this topic. In the ANPRM, the Commission asked
``whether prepaid debit, credit, banking, and gift cards are
functionally the same as cash'' and whether the Commission should amend
its regulations to prohibit contributions in excess of $100 using those
methods.\106\ The Commission received one comment that addressed
prepaid cards, from an entity that processes online contributions. In
the NPRM, the Commission noted again that some electronic payment
methods, particularly prepaid cards and some forms of cryptocurrency,
have certain characteristics that are similar to cash.\107\ Like
currency, prepaid cards and some forms of cryptocurrency are easily
transferable and relatively untraceable; all that is needed to acquire
and use them is sufficient cash to purchase them. The Commission
therefore proposed to update its rules to apply the limitations on
contributions of cash or currency at 11 CFR 110.4(c) to contributions
made by prepaid cards.\108\ No commenters addressed this proposal. Most
recently, the Commission sought comment about prepaid card transactions
in the Request for Additional Comment, but did not receive any comments
in response.\109\
---------------------------------------------------------------------------
\106\ ANPRM, 78 FR at 25638.
\107\ NPRM, 81 FR at 76429.
\108\ Id.
\109\ Request for Additional Comment, 87 FR at 54916-17.
---------------------------------------------------------------------------
The Commission also asked in the NPRM whether it should restrict
contributions of cryptocurrency such as bitcoin to the ``cash''
contribution limit at 11 CFR 110.4(c). Alternatively, the Commission
asked whether it should
[[Page 207]]
treat receipts and disbursements of cryptocurrency as in-kind
contributions because they cannot be deposited in campaign
depositories.\110\ Two commenters, an advocacy center focused on
blockchain technologies and a cryptocurrency exchange, discussed the
use of cryptocurrency in response to the NPRM. Both opined that the
Commission should not treat cryptocurrency contributions the same as
cash contributions.
---------------------------------------------------------------------------
\110\ See 11 CFR 102.10 (requiring committee disbursements be
made by check from campaign depositories), 103.3(a) (setting
campaign depository requirements for receipts and disbursements).
---------------------------------------------------------------------------
The Commission has determined not to amend its rules at this time
to address prepaid cards or cryptocurrency. These payment methods
involve potentially complex commercial and technological issues that
are beyond the Commission's current expertise. To understand fully the
potential effects that any regulatory changes might have on industry
practices, it is important for the Commission to hear from those who
regularly use and implement these payment methods. Few commenters have
shared their perspectives on the feasibility or potential implications
of amending Commission regulations to address prepaid cards or
cryptocurrency. Because any regulatory changes concerning these payment
methods would benefit from a more focused inquiry and expertise on
these rapidly evolving technologies, the Commission has decided not to
amend its regulations as proposed at this time.
2. Updating References to Contributions and Disbursements by Check
a. Committee Disbursements by Electronic Transfer
FECA requires each political committee to maintain at least one
checking account and to make all disbursements (other than from petty
cash) ``by check.'' \111\ The Commission has implemented this
requirement in regulations that require all disbursements (other than
petty cash disbursements) to be made ``by check or similar draft drawn
on'' a campaign depository account.\112\ The Commission has further
interpreted the term ``similar draft'' to include certain forms of
electronic disbursement.\113\ Consistent with these prior
interpretations and in light of the increasing use of electronic
transactions in the campaign finance arena, the Commission is revising
11 CFR 102.10 and 103.3(a) to provide that disbursements may be made by
``check or similar draft, including electronic transfer'' from a
campaign depository; revising 11 CFR 110.1(b)(3)(i)(A) to enable
political committees to refund contributions by ``committee check or
similar draft, including electronic transfer''; and revising 11 CFR
110.6(c)(1)(iv)(C) to require conduits and intermediaries to report
earmarked contributions that are forwarded by electronic transfer, in
addition to reporting earmarked contributions forwarded in cash or by
the contributor's or conduit's check. The Commission intends these
revisions to be consistent with the Commission's prior interpretations
of the terms ``check'' or ``similar draft.''
---------------------------------------------------------------------------
\111\ 52 U.S.C. 30102(h)(1).
\112\ 11 CFR 102.10; see also id. 103.3(a) (same).
\113\ See, e.g., Advisory Opinion 1993-04 (Christopher Cox
Congressional Committee) (approving ``computer driven billpayer
service'' that disbursed funds by electronic transfer); Advisory
Opinion 1982-25 (Barbara Sigmund for Congress Committee) (concluding
that wire transfer qualifies as ``similar draft'').
---------------------------------------------------------------------------
b. Recordkeeping for Disbursements by Electronic Transfer
In light of the regulatory revisions for disbursements by
electronic transfer, and because current technology allows checks to be
processed electronically without the creation of a canceled check (such
as depositing a check using a smartphone app), the Commission is
revising the recordkeeping requirements for political committee
disbursements. Section 102.9(b) describes the records that political
committees must keep of their disbursements. The Commission is revising
11 CFR 102.9(b)(2), (b)(2)(i)(B), and (b)(2)(ii), which currently
require committees to keep a ``cancelled check'' to a payee or
recipient (among other records of disbursements) to provide that a
record of disbursement may consist of a ``canceled check or record of
electronic transfer'' to the payee or recipient. The Commission also is
removing 11 CFR 102.9(b)(2)(iii), which requires political committees
to document disbursements made by share drafts or checks drawn on
credit union accounts, because this provision is no longer necessary in
light of changes to the recordkeeping provisions in other parts of
Sec. 102.9.
Sections 9003.5(b) and 9033.11(b) contain the disbursement
documentation requirements for publicly financed candidates. The
Commission is revising 11 CFR 9003.5(b)(1), 9003.5(b)(1)(iv),
9003.5(b)(2)(ii), 9033.11(b)(1), 9033.11(b)(1)(iv), and
9033.11(b)(2)(ii) to provide explicitly that a record of disbursement
may consist of a ``record of electronic transfer to the payee,'' in
addition to canceled checks negotiated by the payee.
c. Electronic Funds Transfers Related to Separate Segregated Fund
Administration
The Commission is making similar revisions to two regulations
relating to contributions by ``check'' to a separate segregated fund
(``SSF''). First, the Commission is revising 11 CFR 102.6(c)(3), which
provides that a contributor may ``write a check'' representing both a
contribution to an SSF and a payment of dues or other fees ``drawn on
the contributor's personal checking account or on a non-repayable
corporate drawing account of the individual contributor.'' \114\ In
Advisory Opinion 1990-04 (American Veterinary Medical Association PAC),
the Commission interpreted this provision as allowing a combined
payment by credit card. Consistent with the approach in that advisory
opinion, and because of the increasing use of electronic payments, the
Commission is revising 11 CFR 102.6(c)(3) to enable contributors to
make combined payments to an SSF by credit card or electronic payment,
as well as by check. The combined payment would still have to be made
from the contributor's personal account, irrespective of whether made
by check or electronically, or through a payroll-deduction plan.\115\
The rule retains the reference to ``a non-repayable corporate drawing
account of the individual,'' because the Commission wants to retain the
clarification that such accounts are, for purposes of 11 CFR
102.6(c)(3), ``personal accounts.''
---------------------------------------------------------------------------
\114\ 11 CFR 102.6(c)(3).
\115\ See id. (describing combined payments under payroll
deduction plan).
---------------------------------------------------------------------------
Second, the Commission is revising 11 CFR 114.6(d)(2)(iii), which
requires the custodian of an SSF to forward to the SSF funds from
certain separate accounts ``by check drawn on'' such accounts.
Consistent with the revisions concerning disbursements from campaign
depositories, the Commission is revising 11 CFR 114.6(d)(2)(iii) to
allow such funds to be forwarded ``by check or similar draft, including
electronic transfer.''
d. Electronic Transfers of Earmarked Contributions
The Commission has determined not to revise 11 CFR 110.6(c)(1)(v)
to address a conduit or intermediary's electronic forwarding of an
earmarked contribution. Section 110.6(c)(1)(v) sets forth the
mechanisms for reporting two categories of earmarked contributions:
those that pass through a conduit or intermediary's account, and those
that the conduit or intermediary forwards to
[[Page 208]]
a committee ``in the form of a contributor's check or other written
instrument'' without first depositing them in the conduit's or
intermediary's account. The regulation thus does not currently address
earmarked contributions that the conduit or intermediary forwards
electronically without those funds first passing through the conduit or
intermediary's account. The Commission asked in the NPRM whether such
transactions occur, but it received no comments in response. Given the
lack of information before the Commission on this question, the
Commission is not making changes at this time.
3. Electronic Contributions to Publicly Funded Committees
The Funding Acts allow public fund matching only for contributions
``made by a written instrument which identifies the person making the
contribution by full name and mailing address.'' \116\ The Commission
is revising 11 CFR 9034.2, which defines ``written instrument'' in this
context to include contributions by credit and debit card--but not when
made over the telephone--to a participant in the primary matching fund
program.\117\ Section 9034.2(b) allows a political committee to receive
matching funds for contributions by credit card made over the internet
only if the electronic record of that transaction includes ``the name
of the cardholder and the card number, which can be maintained
electronically and reproduced in a written form.'' And Sec. 9034.2(c)
requires the contribution also to contain the contributor's
``signature,'' which is defined for these purposes as ``either an
actual signature . . . or in the case of such a contribution made over
the internet, the full name and card number of the cardholder who is
the donor, entered and transmitted by the cardholder.''
---------------------------------------------------------------------------
\116\ 26 U.S.C. 9034(a).
\117\ See 11 CFR 9034.2(c)(8) (permitting matching of credit and
debit card contributions by written instrument as set forth in 11
CFR 9034.2(b) and (c), but not credit or debit card contributions
made orally).
---------------------------------------------------------------------------
Comments received on the ANPRM urged the Commission to bring the
requirement that committees maintain the full card number of
contributors in line with payment industry security standards.\118\
Payment industry standards limit the storage and retention of payment
card information in order to safeguard consumers and the payment system
from fraud.\119\ Specifically, entities may not store the three-digit
code printed on the back of payment cards and must render unreadable
(by truncation, hashing, or encryption) the card number and expiration
date where that information is stored.\120\
---------------------------------------------------------------------------
\118\ See ActBlue, Comment at 2, <a href="http://sers.fec.gov/fosers/showpdf.htm?docid=297360">sers.fec.gov/fosers/showpdf.htm?docid=297360</a>; Perkins Coie, Comment at 2, <a href="http://sers.fec.gov/fosers/showpdf.htm?docid=297359">sers.fec.gov/fosers/showpdf.htm?docid=297359</a>; Visa, Comment at 1-3, <a href="http://sers.fec.gov/fosers/showpdf.htm?docid=297361">sers.fec.gov/fosers/showpdf.htm?docid=297361</a>.
\119\ Visa, Comment at 2, <a href="http://sers.fec.gov/fosers/showpdf.htm?docid=297361">sers.fec.gov/fosers/showpdf.htm?docid=297361</a>.
\120\ Id. at 2-3.
---------------------------------------------------------------------------
Because Sec. 9034.2(b) and (c) require publicly funded candidates
to retain the card number for each contribution by credit or debit
card, some committees have historically viewed these regulations as
inconsistent with payment industry security practices and requirements.
Accordingly, and in recognition of the security risks that are
attendant upon storing credit card numbers, the Commission is revising
11 CFR 9034.2(b) and (c) by removing the requirements that the
recipient must retain contributors' debit and credit card numbers to be
eligible for matching funds. All of the regulation's other requirements
will remain in effect, including the requirements that the recipient
collect the full name and mailing address of each contributor and
maintain a ``record that can be reproduced on paper'' of each
electronic contribution.
At this time, the Commission is not revising 11 CFR
9034.2(c)(8)(i), which prohibits public fund matching of credit and
debit card contributions ``where the cardholder's name and card number
are given . . . only orally.'' When Sec. 9034.2(c) was first adopted,
the Commission explained the exclusion of credit card ``signatures''
made over the telephone as consistent with the ``written instrument''
limitation on the definition of ``contribution'' in 26 U.S.C.
9034(a).\121\ The Commission explained that an oral authorization of a
credit or debit card contribution is not a ``written instrument'' for
purposes of the Funding Acts, because the only record of such a
transaction is ``created wholly by the recipient committee,'' whereas
for written authorizations ``it is the signatory's . . . act of
entering his or her own name that represents a legal act.'' \122\
Although an electronic record of a credit or debit card contribution
authorized orally--such as an audio recording of the authorization--
constitutes a ``written'' ``record'' under FECA,\123\ such a record is
created by the recipient committee and thus does not constitute a
``written instrument'' sufficient to meet the Funding Acts'
prerequisite for a candidate's receipt of public funds, 26 U.S.C.
9034(a).
---------------------------------------------------------------------------
\121\ See Matching Credit Card and Debit Card Contributions in
Presidential Campaigns, 64 FR 32394, 32395-96 (June 17, 1999).
\122\ Id. at 32396.
\123\ See, e.g., Advisory Opinion 2013-12 (Service Employees
International Union COPE) (noting that ``a telephone-based
authorization system that included computer-based (and retrievable)
records'' could ``incorporate[] procedural safeguards and
recordkeeping mechanisms equivalent to . . . a handwritten signature
on a paper document'' (internal quotations omitted)).
---------------------------------------------------------------------------
Finally, the Commission is revising 11 CFR 9036.2(b)(1)(iii), which
requires committees to provide the Commission with a list of
contribution ``checks returned unpaid'' (i.e., ``bounced''). The
Commission is adding a parallel provision for the electronic equivalent
of bounced checks by requiring committees to provide a list of ``credit
or debit card or other electronic payment chargebacks.'' The Commission
is not adding a similar provision regarding chargebacks to 11 CFR
9036.1(b)(7), which concerns a committee's initial submission for
matching funds, because 11 CFR 9036.1(b)(4) already requires such
initial submissions to include validation for each deposited
contribution.
4. Designation, Redesignation, and Attribution of Contributions
The Commission is revising several provisions concerning the
written designation of contributions for particular elections and the
attribution of contributions to particular contributors.
First, the Commission is revising 11 CFR 110.1(b)(4), 110.2(b)(4),
and 9003.3(a)(1)(vi), which define when contributions are ``designated
in writing.'' Each of these rules now allows a contribution to be
designated for a particular election (or account, in the case of 11 CFR
9003.3(a)(1)(vi)) \124\ if it is made: (1) by a check, money order, or
negotiable instrument which clearly indicates it is made with respect
to that election or account; or (2) with an accompanying writing signed
by the contributor that clearly indicates it is made with respect to
that election or account. To ensure that these regulations apply
uniformly to electronic and non-electronic transactions, the Commission
is removing the reference to a ``check, money order, or other
negotiable instrument'' from 11 CFR 110.1(b)(4)(i), 110.2(b)(4)(i), and
9003.3(a)(1)(vi)(A).
---------------------------------------------------------------------------
\124\ Section 9003.3(a) concerns contributions to a publicly
funded presidential candidate's general election legal and
accounting (``GELAC'') account.
---------------------------------------------------------------------------
Similarly, the Commission is revising 11 CFR 110.1(k)(1) and
9034.2(c), which govern attribution of joint contributions. Section
110.1(k)(1) provides that any contribution made by more than one
person, other than a contribution by a
[[Page 209]]
partnership, ``shall include the signature of each contributor on the
check, money order, or other negotiable instrument or in a separate
writing.'' Because many contributions are made electronically rather
than ``by check, money order, or other negotiable instrument,'' the
Commission is removing that reference to how a contribution is made
from 11 CFR 110.1(k)(1). The revised regulation requires instead that
any joint contribution be ``indicated by the signature of each
contributor in writing,'' without reference to a particular written
instrument.
In the matching-funds context, Sec. 9034.2(c) details the manners
in which joint contributions may be attributed, depending on the type
of written instrument by which the contribution is made. The Commission
is adding to this section a provision governing the attribution of
matchable contributions made by credit and debit cards. Specifically,
new Sec. 9034.2(c)(8)(iii) parallels the joint attribution principles
that apply to contributions by check,\125\ by providing that, ``to be
attributed to more than one person, a signed written statement must
accompany the credit or debit card contribution indicating that the
contribution was made from each individual's personal funds in the
amount so attributed.''
---------------------------------------------------------------------------
\125\ See 11 CFR 9034.2(c)(1)(ii).
---------------------------------------------------------------------------
F. Updating Other Technologically Outmoded References
The Commission is updating its regulations to reflect technological
advances and to remove certain references to outmoded technologies.
These revisions do not affect the substance of any of the revised
regulations.
1. Telegrams, Telephones, Typewriters, Audio Tapes, and Facsimiles
The Commission is removing the reference to ``telegram'' in 11 CFR
104.6(c)(1) because telegrams are obsolete and therefore not useful to
include in the regulation's illustrative, non-exhaustive list of types
of communications.\126\
---------------------------------------------------------------------------
\126\ See Chenda Ngak, Last telegram ever to be sent July 14,
CBS News, (June 18, 2013), <a href="https://www.cbsnews.com/news/last-telegram-ever-to-be-sent-july-14/">https://www.cbsnews.com/news/last-telegram-ever-to-be-sent-july-14/</a> (reporting that India's state-run
telecommunications company, ``the last large-scale telegraph system
in the world,'' was slated to shut down telegraph service ``because
that part of its business is not commercially viable'').
---------------------------------------------------------------------------
For the same reason, the Commission is replacing the reference to
``typewriters'' with ``computers'' in 11 CFR 114.9(d) and removing the
references to ``typewriters'' (without substituting a new term) in 11
CFR 9004.6(a) and 9034.6(a). The word ``computer'' in these contexts
includes not only PCs, but also tablets, smartphones, and similar
devices.
Similarly, the Commission is adding ``internet service'' to non-
exhaustive illustrative lists that include ``telephone service'' in 11
CFR 106.2(b)(2)(iii)(D), 9004.6(a) and (b), and 9034.6(a) and (b).
Because most recording is now digital rather than on magnetic tape,
the Commission is replacing all regulatory references to ``tapes,'' as
in, for example, ``audio tapes,'' with references to ``recordings'' in
11 CFR 200.6(a)(5), 9007.7(b)(2), and 9038.7(b)(2).
The Commission also is revising 11 CFR 108.6(b), which requires
state officers to preserve certain reports concerning federal
elections, by replacing the phrase ``in facsimile copy by microfilm or
otherwise'' with ``by copy.'' The Commission is not, however, removing
all references to ``facsimile'' from its regulations. For example,
certain uses of ``facsimile'' in the regulations are grounded in the
use of the word in FECA, such as the definition of ``mass mailing'' in
11 CFR 100.27, which is drawn from FECA's definition of ``mass
mailing'' as including ``a mailing by . . . facsimile.'' \127\
---------------------------------------------------------------------------
\127\ 52 U.S.C. 30101(23).
---------------------------------------------------------------------------
2. Microfilm and Obsolete Computer References
The Commission is removing most references to ``microfilm,''
``computer tape,'' ``magnetic tape,'' and similar terms from the
regulations because these technologies are, for most purposes,
obsolete. These references are largely found in the rules implementing
the Funding Acts, FOIA, the Privacy Act, and the Commission's Public
Disclosure and Media Relations Division. Specifically, the Commission
is making the following revisions, none of which is substantive:
<bullet> remove the references to ``microform,'' ``computer tape or
microfilm,'' ``computerized,'' and ``Computerized Magnetic Media
Requirements'' in 11 CFR 4.1(j), 4.9(c)(5), 9007.1(b)(1),
9036.2(b)(1)(vi), and 9038.1(b)(1);
<bullet> replace references to ``machine readable documentation,''
``magnetic tape or disk,'' ``computer disk,'' ``magnetic tapes or
magnetic diskettes,'' and ``computerized magnetic media'' with
``digital storage device'' in 11 CFR 4.1(j), 4.9(a)(3), 9003.1(b)(4),
9003.6(a), 9033.1(b)(5), 9033.12(a), and 9036.1(b)(2);
<bullet> delete 11 CFR 9003.6(b) and 9033.12(b), which concern the
organization of computer information according to technical
specifications of a computer system the Commission no longer uses;
<bullet> replace ``computers'' with ``computers or other electronic
devices'' in 11 CFR 9004.6(a)(1) and 9034.6(a)(1); and
<bullet> replace ``either solely in magnetic media from or in both
printed and magnetic media forms'' with ``in printed or digital form or
a combination of printed and digital forms'' in 11 CFR
9036.2(b)(1)(ii).
The Commission also is revising and simplifying the fee structures
at 11 CFR 4.9 and 5.6, which concern fees for FOIA and Public
Disclosure. Specifically, the Commission is removing 11 CFR 4.9(a)(2)
(imposing $25 per hour computer access FOIA fee); revising 11 CFR
4.9(c)(4) and 5.6(a) to reduce the fee for document certification;
removing from 11 CFR 4.9(c)(4) and 5.6(a) the fees for ``microfilm
reader-printer'' and ``microfilm-paper'' copies, ``reels of
microfilm,'' publications, computer tapes and indexes, professional
research time, and transcripts; \128\ removing the specified staff
charges from Sec. 4.9(c)(4) and adding a provision to charge the
``direct costs,'' including staff and digital storage devices on which
records are produced; removing from 11 CFR 5.6(a) the fees for
professional ``research time/photocopying time''; removing 11 CFR
5.6(b), which establishes fees for providing Commission publications;
and removing from 11 CFR 5.6(c) the reference to use of a contractor
for microfilm and computer tape duplication. The Commission also is
making a conforming revision to 11 CFR 112.2(b) by including a
reference to the Commission's website in conjunction with an existing
reference to the Public Disclosure and Media Relations Division.
---------------------------------------------------------------------------
\128\ The Commission is not changing regulatory references to
microfilm that relate to older Commission records that are
unavailable in other forms. See, e.g., 11 CFR 5.6(a)(1)
(establishing fee for making paper copies from microfilm).
---------------------------------------------------------------------------
In the NPRM, the Commission sought comment on two parallel
provisions concerning accommodations for the hearing impaired in
television commercials prepared and distributed by publicly financed
candidates. The Funding Acts require such candidates to certify that
any television advertisement ``contains or is accompanied by closed
captioning of the oral content of the commercial to be broadcast in
line 21 of the vertical blanking interval, or is capable of being
viewed by deaf and hearing impaired individuals via any comparable
successor technology to line
[[Page 210]]
21 of the vertical blanking interval.'' \129\ Commission regulations
implement this requirement essentially verbatim at 11 CFR 9003.1(b)(10)
and 9033.1(b)(12). The Commission asked whether there is a ``successor
technology'' that should now be recognized in these provisions, such as
technologies that might not apply to traditional broadcast television
but are used for cable, satellite, or internet-based television (e.g.,
Hulu or Netflix). The Commission received no comments in this area and
has decided not to revise these rules at this time.
---------------------------------------------------------------------------
\129\ 26 U.S.C. 9003(e).
---------------------------------------------------------------------------
3. Websites
The Commission is revising certain regulatory references to
``websites'' to accommodate newer technologies--such as mobile
applications (``apps'') on smartphones and tablets, smart TV,
interactive gaming dashboards, e-book readers, and wearable network-
enabled devices such as smartwatches or headsets--that have taken many
of the same roles and characteristics that the Commission previously
ascribed to websites.
First, when the Commission initiated this rulemaking, the
definition of ``public communication'' in 11 CFR 100.26 referred to
communications placed for a fee on another person's ``website.'' \130\
When the Commission defined ``public communication'' in 2006 to include
paid internet advertisements on websites, it analogized such
advertisements to the other forms of mass communication enumerated in
FECA's definition of ``public communication''--such as television,
radio, and newspapers--because ``each lends itself to distribution of
content through an entity ordinarily owned or controlled by another
person.'' \131\ The Commission focused on websites because that was the
predominant means of paid internet advertising in 2006.\132\
---------------------------------------------------------------------------
\130\ The definition of ``public communication'' is relevant to
the application of certain disclaimer requirements, 11 CFR
110.11(a), coordination rules, 11 CFR 109.21(c), and financing
limitations, e.g., 11 CFR 100.24(b)(3), 300.32(a)(1)-(2), 300.71.
\131\ See internet Communications, 71 FR 18589, 18594 (Apr. 12,
2006); 52 U.S.C. 30101(22).
\132\ Even in the 2006 rulemaking, the Commission stated, albeit
in a different context, that the ``terms `website' and `any internet
or electronic publication' are meant to encompass a wide range of
existing and developing technology, such as websites, `podcasts,'
etc.'' internet Communications, 71 FR at 18608 n.52 (citing 2005
testimony enumerating variety of ``Internet communication
technologies,'' including instant messaging, ``Internet Relay
Chat,'' social networking software, and widgets).
---------------------------------------------------------------------------
In both the NPRM for this rulemaking and in an NPRM published in
2018 addressing internet communications disclaimers and the definition
of ``public communication'' (``internet Communications Disclaimers
NPRM''), the Commission proposed updating the definition to include a
reference to an ``internet-enabled device or application.'' \133\ In
each case, the Commission asked whether such terms were ``sufficiently
clear and technically accurate'' to describe ``the various media
through which paid internet communications can be sent and received.''
\134\ In response to the internet Communications Disclaimers NPRM, the
Commission received numerous comments addressing the proposed revision
to the definition of ``public communication.'' \135\ Most who commented
on the issue supported the proposed revision.
---------------------------------------------------------------------------
\133\ See Internet Communication Disclaimers and Definition of
``Public Communication'', 83 FR 12864, 12868 (March 26, 2018).
\134\ NPRM, 81 FR at 76433-34; Internet Communication
Disclaimers and Definition of ``Public Communication'', 83 FR at
12865, 12868.
\135\ The Commission received only one comment addressing the
proposal to revise the definition of ``public communication'' in
response to the NPRM for the Technological Modernization rulemaking.
That comment is discussed further below.
---------------------------------------------------------------------------
The Commission amended the definition of ``public communication''
in the Internet Communications Disclaimers rulemaking to include
``communications placed for a fee on another person's website, digital
device, application, or advertising platform.'' \136\ In that
rulemaking, the Commission also adopted a new defined term, ``internet
public communication,'' which is defined similarly as ``any public
communication over the internet that is placed for a fee on another
person's website, digital device, application, or advertising
platform.'' \137\
---------------------------------------------------------------------------
\136\ Internet Communication Disclaimers and Definition of
``Public Communication,'' 87 FR 77467, 77471 (Dec. 19, 2022).
\137\ Id. at 77473.
---------------------------------------------------------------------------
The Commission asked in the Supplemental Notice of Proposed
Rulemaking published in this rulemaking (``SNPRM'') whether the
definitions of ``public communication'' and ``internet public
communication'' should also include communications that are ``promoted
for a fee'' on another person's website, digital device, application,
or advertising platform, and whether such communications that are
``promoted for a fee'' should be subject to the Commission's disclaimer
requirements.\138\
---------------------------------------------------------------------------
\138\ SNPRM, 87 FR 75518 (Dec. 9, 2022).
---------------------------------------------------------------------------
The Commission received six substantive comments in response to the
SNPRM. Three commenters supported the proposal and three opposed it.
Those commenters that supported the proposal generally did so on the
grounds that it better reflects the current advertising landscape and
would increase the transparency of sponsored content, so that voters
can more readily discern paid communications and determine the source
of such messages. The commenters that opposed the proposal expressed
concerns about chilling ordinary citizens' speech, and that the
proposed language could be read to extend to political committees'
internal staff and technology costs. One such commenter suggested
modifying the proposed definition to cover communications ``promoted
for a fee paid to another person's website, digital device,
application, or advertising platform.''
Based on the comments received, the Commission is amending the
definition of ``public communication'' at 11 CFR 100.26 and the
definition of ``internet public communication'' at 11 CFR
110.11(c)(5)(i) to include communications over the internet that are
``placed or promoted for a fee on another person's website, digital
device, application, or advertising platform. A public communication is
promoted for a fee where a payment is made to a website, digital
device, application, or advertising platform in order to increase the
circulation, prominence, or availability of the communication on that
website, digital device, application, or advertising platform.''
The updated definitions of ``public communication'' and ``internet
public communication'' better reflect the wide and rapidly expanding
array of paid internet advertising options. These amendments will
increase transparency by helping to ensure that political committees
and others properly disclose their paid internet communications.\139\
In 2006, the court in Shays v. Federal Election Commission concluded
that ``[w]hile all internet communications do not fall within [the
scope of `any other form of general public political advertising'],
some clearly do,'' \140\ and directed the Commission to determine what
constitutes ``general public political advertising'' in the context of
internet communications. In amending the definition of ``public
communication'' in response to the Shays decision to include paid
internet advertising, the Commission acknowledged that the internet is
``a unique and evolving mode of mass communication and political
[[Page 211]]
speech.'' \141\ As the internet has continued to evolve since that
time, so have the available forms of paid internet advertising, and the
Commission is updating its regulations to keep pace.
---------------------------------------------------------------------------
\139\ See Internet Communications, 71 FR 18589 (Apr. 12, 2006).
\140\ Shays v. FEC, 337 F. Supp. 2d 28, 67 (D.D.C. 2004), aff'd,
414 F.3d 76 (D.C. Cir. 2005), reh'g en banc denied (Oct. 21, 2005).
\141\ Internet Communications, 71 FR 18589 (Apr. 12, 2006).
---------------------------------------------------------------------------
The amended definitions will also help to prevent the circumvention
of disclaimer requirements on paid internet communications.\142\ Under
the former regulations, arguably a political advertisement placed for
free on a social media platform would not require a disclaimer even if
the advertiser then pays the platform to promote the communication to a
wider audience, while the same communication placed for a fee on the
same social media platform to reach the same audience would require a
disclaimer. The amended definitions of ``public communication'' and
``internet public communication'' will forestall such an argument by
aligning the treatment of these two forms of paid political ads.
---------------------------------------------------------------------------
\142\ See id. at 18593 (recognizing ``the important purpose of
BCRA in preventing actual and apparent corruption and the
circumvention of [FECA]'').
---------------------------------------------------------------------------
Certain commenters opined that the definitions proposed in the
SNPRM were too broad because they arguably expanded the definitions of
``public communication'' and ``internet public communication'' beyond
paid advertising. The commenters were concerned that, as proposed, the
definitions could be read to capture political communications placed or
promoted for free on a third party's platform if the speaker incurs
staffing, technology, or design costs to create the communication. The
revised definitions, however, apply only where the speaker pays a third
party's website, digital device, application or advertising platform to
increase the communication's visibility on that website, device,
application, or platform. They do not apply to communications where the
speaker's only costs are to create the communication or to place or
promote the communication ``using a forum that he or she controls to
establish his or her own audience.'' \143\
---------------------------------------------------------------------------
\143\ Internet Communications, 71 FR 18589, 18594-95 (Apr. 12,
2006).
---------------------------------------------------------------------------
In the SNPRM, the Commission sought comments about whether any
distinction should be made between several types of communications that
are sometimes described as ``promoted.'' One type was a communication
where ``a website, digital device, application, or advertising platform
is paid directly to `boost' or expand the scope of viewership of
content containing express advocacy or soliciting a contribution in
order to increase the circulation or prominence of that content.''
\144\ After reviewing the comments received, the Commission has decided
that this type of communication is analogous to the traditional forms
of paid advertising identified in FECA as a ``public communication''
\145\ because the speaker pays the entity that owns or controls the
medium of communication to distribute the communication on the
speaker's behalf. Accordingly, the updated definitions of ``public
communication'' and ``internet public communication'' include this type
of ``promoted'' communication. Thus, for example, if a political
committee posts a video solicitation for free on a social media
platform and pays the platform to boost the video's viewership, the
video is both a ``public communication'' and an ``internet public
communication.''
---------------------------------------------------------------------------
\144\ SNPRM, 87 FR at 75519.
\145\ 52 U.S.C. 30101(22); see also id. 30120(a); 11 CFR 110.26.
---------------------------------------------------------------------------
In contrast, the updated definitions of ``public communication''
and ``internet public communication'' do not apply to the other types
of communications described in the SNPRM, where an individual is paid
to create or share political content.\146\ The definitions do not
encompass instances where individuals make decisions about what content
to share with their own audiences. For example, if a political
committee posts a video soliciting contributions on a social media site
for free and then pays an individual to post the video on that
individual's social media page to share with the individual's
followers, the video is neither a ``public communication'' nor an
``internet public communication'' under Commission regulations. The
same result occurs if the political committee pays an individual to
create and post a communication online for the individual's audience.
In both situations, the individual would be communicating with the
individual's own followers who have sought out such communications,
which the Commission has determined are not ``public communications.''
\147\
---------------------------------------------------------------------------
\146\ SNPRM, 87 FR at 75519.
\147\ See Internet Communications, 71 FR at 18594-95.
---------------------------------------------------------------------------
Some commenters were concerned that the amended definitions of
``public communication'' and ``internet public communication'' could
affect individuals' political activity and speech on the internet more
broadly. The Commission does not share this concern. Other than the
disclaimer requirements discussed above, the amended definitions apply
only to communications by entities that are already subject to
Commission regulation or that coordinate with candidates or political
parties already subject to regulation.\148\ Communications by
individuals, even when political in nature, should not be affected by
the revised definitions other than in the disclaimer context.
---------------------------------------------------------------------------
\148\ Other than disclaimer requirements, the changes affect the
following regulatory provisions: the restrictions on funding of
Federal election activity by political party committees and State
and local candidates (52 U.S.C. 30101(20)); the allocation of costs
of certain communications by some political committees under 11 CFR
106.6(b); and the determination that certain communications must be
treated as contributions if coordinated with a Federal candidate or
political party committee under 11 CFR 109.21 and 109.37.
---------------------------------------------------------------------------
Second, the Commission also proposed to revise the disclaimer
provision in 11 CFR 110.11, which refers to political committees'
``internet websites'' that are available to the general public.\149\
When the Commission revised the disclaimer requirements in 2002 to
apply to political committees' websites, it noted ``the widespread use
of this technology in modern campaigning, and the relatively
nonintrusive nature of disclaimer requirements.'' \150\ Disclaimers on
political committee websites, the Commission stated, ``will assure, for
example, that a website created and paid for by an individual will not
have to include a disclaimer'' while the ``use of . . . websites to
conduct campaign activity will have to provide the public notice of who
is responsible.'' \151\ As noted in the discussion of ``public
communication'' above, the Commission used the term ``website'' here
because that was the predominant means of public ``campaign activity''
on the internet at the time. To update the now-outdated terminology in
this provision, the Commission is revising it to refer to political
committees' ``websites and internet applications.''
---------------------------------------------------------------------------
\149\ See 11 CFR 110.11(a)(1).
\150\ Disclaimers, Fraudulent Solicitation, Civil Penalties, and
Personal Use of Campaign Funds, 67 FR 76962, 76964 (Dec. 13, 2002).
\151\ Id.
---------------------------------------------------------------------------
Third, the Commission is updating the definition of ``federal
election activity'' to exclude de minimis costs incurred by a state,
district, or local party committee for certain activities associated
with apps.\152\ Previously, the definition of ``federal election
activity'' excluded de minimis costs associated with posting certain
general voting information on the ``website'' of a state, district, or
local party committee or association of state or local
[[Page 212]]
candidates.\153\ When the Commission adopted these exclusions in 2010,
it recognized the ``administrative complexities'' that state, district,
and local party committees and associations of state and local
candidates would face in tracking the ``nominal, incidental'' costs of
the enumerated activities.\154\ The Commission also recognized that
many of these activities did not involve any costs and, for those that
did, the costs would be ``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.'' \155\ The Commission now is updating
11 CFR 100.24(c)(7) by providing that the de minimis exception also
applies to the same enumerated activities when conducted via internet
apps of state, district, and local party committees and associations of
state and local candidates. The Commission believes that the reasons
for excluding this activity from the definition of federal election
activity when conducted on a party committee's website--i.e., its de
minimis incremental cost and the administrative difficulty of
determining such cost--apply equally to making the specified
information available on a party committee's app.
---------------------------------------------------------------------------
\152\ 11 CFR 100.24.
\153\ 11 CFR 100.24(c)(7)(i)-(iii).
\154\ See Definition of Federal Election Activity, 75 FR 55257,
55265 (Sept. 10, 2010).
\155\ Id.
---------------------------------------------------------------------------
Finally, the Commission is revising references to ``World Wide Web
site,'' ``Web site'' or ``web site'' to read ``website'' in 11 CFR
4.4(g), 100.29(b)(6)(i) and (ii), 100.73, 100.94(b), 100.132,
104.22(b)(2)(i) and (ii), 110.1(c)(1)(iii), 110.2(e)(2), and
110.17(e)(1) and (2); ``internet website'' to read ``website'' in 11
CFR 104.22(a)(6)(ii)(A)(2); ``World Wide Web address'' to read
``website address'' in 11 CFR 110.11(b)(3); and ``Web address'' and
``Web page'' to read ``website address'' and ``web page'' in 11 CFR
300.2(m)(1)(iii). As with the other terminological updates discussed
above, none of these proposed revisions affect a substantive change in
the regulations.
Certification of No Effect Pursuant to 5 U.S.C. 605(b) (Regulatory
Flexibility Act)
The Commission certifies that the attached rules would not have a
significant economic impact on a substantial number of small entities.
The rules would clarify and update existing regulatory language, codify
certain existing Commission precedent regarding electronic transactions
and communications, and provide political committees and other entities
with more flexibility in meeting FECA's recordkeeping and filing
requirements. The rules would not impose new recordkeeping, reporting,
or financial obligations on political committees or commercial vendors.
The Commission therefore certifies that the rules would not have a
significant economic impact on a substantial number of small entities.
List of Subjects
11 CFR Part 1
Privacy.
11 CFR Part 4
Freedom of information.
11 CFR Part 5
Archives and records.
11 CFR Part 6
Civil rights, Individuals with disabilities.
11 CFR Part 100
Elections.
11 CFR Part 102
Political committees and parties, Reporting and recordkeeping
requirements.
11 CFR Part 103
Banks and banking, Campaign funds, Political committees and
parties, Reporting and recordkeeping requirements.
11 CFR Part 104
Campaign funds, Political committees and parties, Reporting and
recordkeeping requirements.
11 CFR Part 106
Campaign funds, Political committees and parties, Reporting and
recordkeeping requirements.
11 CFR Part 108
Elections, Reporting and recordkeeping requirements.
11 CFR Part 109
Coordinated and independent expenditures.
11 CFR Part 110
Campaign funds, Political committees and parties.
11 CFR Part 111
Administrative practice and procedure, Elections, Law enforcement,
Penalties.
11 CFR Part 112
Administrative practice and procedure, Elections.
11 CFR Part 114
Business and industry, Elections, Labor.
11 CFR Part 116
Administrative practice and procedure, Business and industry,
Credit, Elections, Political candidates, Political committees and
parties.
11 CFR Part 200
Administrative practice and procedure.
11 CFR Part 201
Administrative practice and procedure.
11 CFR Part 300
Campaign funds, Nonprofit organizations, Political committees and
parties, Political candidates, Reporting and recordkeeping
requirements.
11 CFR Part 9003
Campaign funds, Reporting and recordkeeping requirements.
11 CFR Part 9004
Campaign funds.
11 CFR Part 9007
Administrative practice and procedure, Campaign funds.
11 CFR Part 9032
Campaign funds.
11 CFR Part 9033
Campaign funds, Reporting and recordkeeping requirements.
11 CFR Part 9034
Campaign funds, Reporting and recordkeeping requirements.
11 CFR Part 9035
Campaign funds, Reporting and recordkeeping requirements.
11 CFR Part 9036
Administrative practice and procedure, Campaign funds, Reporting
and recordkeeping requirements.
11 CFR Part 9038
Administrative practice and procedure, Campaign funds.
11 CFR Part 9039
Campaign funds, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, the Federal Election
Commission amends 11 CFR chapter I as follows:
PART 1--PRIVACY ACT
0
1. The authority citation for part 1 continues to read as follows:
[[Page 213]]
Authority: 5 U.S.C. 552a.
Sec. 1.3 [Amended]
0
2. In Sec. 1.3, amend paragraph (b) by removing the phrase ``request
assistance by mail or in person from the Commission's Chief Privacy
Officer during the hours of 9 a.m. to 5:30 p.m. at the street address
identified in the definition of ``Commission'' in Sec. 1.2'' and
adding in its place the phrase ``request assistance either in person
from the Chief Privacy Officer during the hours of 9 a.m. to 5:30 p.m.
or by filing a request for assistance, addressed to the Chief Privacy
Officer, pursuant to 11 CFR 100.19(g)''.
Sec. 1.4 [Amended]
0
3. In Sec. 1.4, amend paragraph (a) removing the phrase ``made at the
Federal Election Commission at the street address identified in the
definition of ``Commission'' in Sec. 1.2, and to the system manager
identified in the notice describing the systems of records, either in
writing or in person'' and adding in its place the phrase ``addressed
to the system manager identified in the notice describing the systems
of records, either in person or by filing the request pursuant to 11
CFR 100.19(g)''.
PART 4--PUBLIC RECORDS AND THE FREEDOM OF INFORMATION ACT
0
4. The authority citation for part 4 continues to read as follows:
Authority: 5 U.S.C. 552, as amended.
Sec. 4.1 [Amended]
0
5. In Sec. 4.1 amend paragraph (j) as follows:
0
a. Remove the word ``microform,''; and
0
b. Remove the phrase ``machine readable documentation (e.g., magnetic
tape or disk)'' and add in its place the phrase ``digital storage
device''.
Sec. 4.4 [Amended]
0
6. In Sec. 4.4 amend paragraph (g) by removing ``World Wide website''
and adding in its place ``website''.
Sec. 4.5 [Amended]
0
7. Amend Sec. 4.5 as follows:
0
a. In paragraph (a)(4)(i), remove the phrase ``addressed to the Chief
FOIA Officer, Federal Election Commission, at the street address
identified in the definition of ``Commission'' in Sec. 1.2, and shall
indicate clearly on the envelope'' and add in its place the phrase
``addressed to the Chief FOIA Officer and filed pursuant to 11 CFR
100.19(g), and shall indicate clearly on the envelope or subject line,
or in a similarly prominent location,''; and
0
b. In paragraph (a)(4)(iv), remove the phrase ``addressed to the Chief
FOIA Officer, Federal Election Commission, at the street address
identified in the definition of ``Commission'' in Sec. 1.2'' and add
in its place the phrase ``addressed to the Chief FOIA Officer and filed
pursuant to 11 CFR 100.19(g)''.
Sec. 4.7 [Amended]
0
8. In Sec. 4.7 amend paragraph (b)(1) by removing the phrase
``addressed to Chief FOIA Officer, Federal Election Commission, at the
street address identified in the definition of ``Commission'' in Sec.
1.2'' and adding in its place the phrase ``addressed to the Chief FOIA
Officer and filed pursuant to 11 CFR 100.19(g)''.
Sec. 4.8 [Amended]
0
9. Amend Sec. 4.8 as follows:
0
a. In paragraph (b), remove the phrase ``envelope or other cover and at
the top of the first page'' and add in its place the phrase ``envelope
or subject line, or in a similarly prominent location,''; and
0
b. In paragraph (c), remove the phrase ``delivered or addressed to the
Chief FOIA Officer, Federal Election Commission, at the street address
identified in the definition of ``Commission'' in Sec. 1.2'' and add
in its place the phrase ``addressed to the Chief FOIA Officer and filed
pursuant to 11 CFR 100.19(g)''.
0
10. Amend Sec. 4.9 by:
0
a. Removing paragraph (a)(2);
0
b. Redesignating paragraphs (a)(3) and (4) as paragraphs (a)(2) and
(3), respectively;
0
c. In newly redesignated paragraph (a)(2), removing the phrase
``computer disks'' and adding in its place the phrase ``digital storage
devices''; and
0
d. Revising paragraphs (c)(4) and (5).
The revisions read as follows:
Sec. 4.9 Fees.
* * * * *
(c) * * *
(4) For a paper photocopy of a record, the fee will be $.07 per
page, which has been calculated to include staff time. For other forms
of duplication, including copies produced by computer, the Commission
will charge the direct costs, including staff time and the actual cost
of any digital storage device provided. The Commission will charge
$7.50 for certification of a document. The Commission will not charge a
fee for ordinary packaging and mailing of records requested. When a
request for special mailing or delivery services is received the
Commission will package the records requested. The requestor shall make
all arrangements for pick-up and delivery of the requested materials.
The requestor shall pay all costs associated with special mailing or
delivery services directly to the courier or mail service.
(5) The Commission will advise the requestor of the identity of any
private contractor who will perform the duplication services. If fees
are charged for such services, they shall be made payable to that
private contractor and shall be forwarded to the Commission.
* * * * *
PART 5--ACCESS TO PUBLIC DISCLOSURE AND MEDIA RELATIONS DIVISION
DOCUMENTS
0
11. The authority citation for part 5 continues to read as follows:
Authority: 52 U.S.C. 30108(d), 30109(a)(4)(B)(ii), 30111(a); 31
U.S.C. 9701.
Sec. 5.4 [Amended]
0
12. Amend Sec. 5.4(a)(5) by removing ``Letter requests'' and adding in
its place ``Requests''.
Sec. 5.5 [Amended]
0
13. Amend Sec. 5.5 as follows:
0
a. In paragraph (a), remove the phrase ``mail. The Public Disclosure
and Media Relations Division is open Monday through Friday between the
hours of 9 a.m. and 5 p.m. and is located at the Federal Election
Commission at the street address identified in the definition of
``Commission'' in Sec. 1.2'' and add in its place the phrase ``filing
a request pursuant to 11 CFR 100.19(g)''; and
0
b. In paragraph (c), remove the phrase ``addressed to the Chief FOIA
Officer, Federal Election Commission, at the street address identified
in the definition of ``Commission'' in Sec. 1.2'' and add in its place
the phrase ``addressed to the Chief FOIA Officer and filed pursuant to
11 CFR 100.19(g)''.
0
14. Amend Sec. 5.6 as follows:
0
a. Revise paragraph (a);
0
b. Remove paragraph (b);
0
c. Redesignate paragraphs (c) and (d) as paragraphs (b) and (c),
respectively; and
0
d. Revise newly redesignated paragraph (b).
The revisions read as follows:
Sec. 5.6 Fees.
(a) Fees may be charged for copies of records which are furnished
to a requester under this part and for the staff time spent in locating
and reproducing such records at the rate of $.05 per page for paper
copies, including paper copies from microfilm; $4.50 per half hour of
staff time after the
[[Page 214]]
first half hour; and $7.50 for certification of a document. Such fees
shall not exceed the Commission's direct cost of processing requests
for those records computed on the basis of the actual number of copies
produced and the staff time expended in fulfilling the particular
request.
(b) In the event the anticipated fees for all pending requests from
the same requester exceed $25.00, records will not be searched, nor
copies furnished, until the requester pays, or makes acceptable
arrangements to pay, the total amount due. If any fee is not precisely
ascertainable, an estimate will be made by the Commission and the
requester will be required to forward the fee so estimated. In the
event any advance payment differs from the actual fee, an appropriate
adjustment will be made at the time the copies are made available by
the Commission.
* * * * *
PART 6--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP
IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE FEDERAL ELECTION
COMMISSION
0
15. The authority citation for part 6 continues to read as follows:
Authority: 29 U.S.C. 794.
Sec. 6.170 [Amended]
0
16. Amend Sec. 6.170 as follows:
0
a. In paragraph (d)(3), remove the phrase ``filed under this part shall
be addressed to the Rehabilitation Act Officer, Federal Election
Commission, at the street address identified in the definition of
``Commission'' in Sec. 1.2'' and add in its place the phrase ``under
this part shall be addressed to the Rehabilitation Act Officer and
filed pursuant to 11 CFR 100.19(g)'';
0
b. In paragraph (g), remove the phrase ``in a letter containing'' and
add in its place the phrase ``in writing. This notification will
contain'';
0
c. In paragraph (h), remove the word ``letter'' and add in its place
the word ``notification''; and
0
d. In paragraph (i), remove the phrase ``, Federal Election Commission,
at the street address identified in the definition of ``Commission'' in
Sec. 1.2'' and add in its place the phrase ``and filed pursuant to 11
CFR 100.19(g)''.
PART 100--SCOPE AND DEFINITIONS (52 U.S.C. 30101)
0
17. The authority citation for part 100 continues to read as follows:
Authority: 52 U.S.C. 30101, 30102(g), 30104, 30111(a)(8), and
30114(c).
Sec. 100.3 [Amended]
0
18. Amend Sec. 100.3(a)(3) by removing the phrase ``by letter'' and
adding in its place ``in writing''.
0
19. In Sec. 100.19, revise the introductory text and paragraph (a) and
add paragraph (g) to read as follows:
Sec. 100.19 File, filed, or filing (52 U.S.C. 30104(a)).
With respect to documents required to be filed with the Commission
under 11 CFR parts 101, 102, 104, 105, 107, 108, and 109, and any
modifications or amendments thereto, the terms file, filed, and filing
mean one of the actions set forth in paragraphs (a) through (f) of this
section. With respect to documents to be filed with the Commission
under any other provision of 11 CFR, the terms file, filed, and filing
mean one of the actions set forth in paragraph (g) of this section. For
purposes of this section, document means any report, statement, notice,
designation, request, petition, or other writing to be filed with the
Commission.
(a) Where to deliver reports. Except for documents electronically
filed under paragraph (c) of this section, a document is timely filed
upon delivery to the Federal Election Commission as required by 11 CFR
part 105, by the close of business on the prescribed filing date.
* * * * *
(g) A document may be filed in person or by mail, including
priority mail or express mail, or overnight delivery service, with the
Federal Election Commission, or by any alternative means, including
electronic, that the Commission may prescribe.
Sec. 100.24 [Amended]
0
20. Amend Sec. 100.24 as follows:
0
a. In paragraph (c)(7)(i), by removing the terms ``Web site'' and ``web
page'' and adding in their places the phrase ``website or internet
application'' wherever they appear; and
0
b. In paragraphs (c)(7)(ii) and (iii), by removing the term ``Web
site'' and adding in its place the phrase ``website or internet
application'' wherever it appears.
0
21. Amend Sec. 100.26 by revising the second sentence and adding a
third sentence to read as follows:
Sec. 100.26 Public communications (52 U.S.C. 30101(22)).
* * * The term general public political advertising shall not
include communications over the internet, except for communications
placed or promoted for a fee on another person's website, digital
device, application, or advertising platform. A public communication is
promoted for a fee where a payment is made to a website, digital
device, application, or advertising platform in order to increase the
circulation, prominence, or availability of the communication on that
website, digital device, application, or advertising platform.
Sec. 100.29 [Amended]
0
22. Amend Sec. 100.29 as follows:
0
a. In paragraphs (b)(6)(i) and (ii), remove the term ``Web site'' and
add in its place the term ``website'' wherever it appears; and
0
b. In paragraph (b)(6)(ii)(A), remove the phrase ``written
documentation'' and add in its place the phrase ``a writing''.
0
23. Add Sec. 100.34 to subpart A to read as follows:
Sec. 100.34 Record.
(a) A record is information that is inscribed on a tangible medium
or that is stored in an electronic or other medium from which the
information can be retrieved and reviewed in visual or aural form.
(b) Any person who provides to the Commission a record stored in an
electronic or other non-tangible medium shall, upon request of the
Commission, provide at no cost to the Commission any equipment and
software necessary to enable the Commission to retrieve and review the
information in the record. The Commission may request such equipment
and software when the Commission cannot retrieve and review the
information using the Commission's existing equipment and software.
0
24. Add Sec. 100.35 to subpart A to read as follows:
Sec. 100.35 Writing, written.
Written, in writing, or a writing means consisting of letters,
words, numbers, or their equivalent set down in any medium or form,
including paper, email or other electronic message, computer file, or
digital storage device.
0
25. Add Sec. 100.36 to subpart A to read as follows:
Sec. 100.36 Signature, electronic signature.
(a) A signature is an individual's name or mark on a writing or
record that identifies the individual and authenticates the writing or
record. A signature includes an electronic signature, unless otherwise
specified.
(b) An electronic signature is an electronic word, image, symbol,
or process that an individual attaches to or associates with a writing
or record to identify the individual and authenticate the writing or
record. Examples of
[[Page 215]]
electronic signatures include a digital image of a handwritten
signature, or a secure, digital code attached to an electronically
transmitted message that uniquely identifies and authenticates the
sender.
(c) A writing or record may be sworn, made under oath, or otherwise
certified or verified under penalty of perjury, by electronic
signature. A writing or record may be notarized electronically pursuant
to applicable State law.
Sec. 100.73 [Amended]
0
26. Amend the introductory text of Sec. 100.73 by removing the term
``Web site'' and adding in its place the term ``website''.
Sec. 100.82 [Amended]
0
27. Amend Sec. 100.82(e)(1)(i) and (e)(2)(ii) by removing the word
``documentation'' and adding in its place the word ``records'' wherever
it appears.
Sec. 100.93 [Amended]
0
28. Amend the introductory text of Sec. 100.93(j)(1), (2), and (3) by
removing the word ``documentation'' and adding in its place the term
``a record'' wherever it appears.
Sec. 100.94 [Amended]
0
29. Amend Sec. 100.94(b) by removing the term ``Web site'' and adding
in its place the term ``website'' wherever it appears.
Sec. 100.132 [Amended]
0
30. Amend the introductory text of Sec. 100.132 by removing ``Web
site'' and adding in its place ``website''.
Sec. 100.142 [Amended]
0
31. Amend Sec. 100.142(e)(1)(i) and (e)(2)(ii) by removing the word
``documentation'' and adding in its place the word ``records'' wherever
it appears.
PART 102--REGISTRATION, ORGANIZATION, AND RECORDKEEPING BY
POLITICAL COMMITTEES (52 U.S.C. 30103)
0
32. The authority citation for part 102 continues to read as follows:
Authority: 52 U.S.C. 30102, 30103, 30104(a)(11), 30111(a)(8),
and 30120.
0
33. Amend Sec. 102.6 as follows:
0
a. In the introductory text of paragraph (c)(2), remove the phrase
``fund in a bill'' and add in its place the phrase ``fund with a
bill''; and
0
b. Revise paragraph (c)(3).
The revision reads as follows:
Sec. 102.6 Transfers of funds; collecting agents.
* * * * *
(c) * * *
(3) Combining contributions with other payments. A contributor may
write a check or authorize a credit card or electronic payment that
represents both a contribution and payment of dues or other fees. The
combined payment must be made from the contributor's personal account
or on a non-repayable corporate drawing account of the individual
contributor. Under a payroll deduction plan, an employer may make a
payment on behalf of its employees to a union or its agent that
represents a combined payment of voluntary contributions to the union's
separate segregated fund and union dues or other employee deductions.
* * * * *
0
34. In Sec. 102.8, revise the last sentence of paragraph (a) and the
last sentence of paragraph (b)(2), and add paragraph (d) to read as
follows:
Sec. 102.8 Receipt of contributions (52 U.S.C. 30102(b)).
(a) * * * Date of receipt shall be the date such person obtains
possession of the contribution or, for a contribution made in an
electronic transaction in which the receipt of authorization precedes
the receipt of funds, obtains the contributor's authorization of the
transaction.
(b) * * *
(2) * * * Date of receipt shall be the date such person obtains
possession of the contribution or, for a contribution made in an
electronic transaction in which the receipt of authorization precedes
the receipt of funds, obtains the contributor's authorization of the
transaction.
* * * * *
(d) Every person whose usual and normal business involves the
processing and transmission of payments and who processes a
contribution to a political committee in the ordinary course of its
business will satisfy the requirements of paragraphs (a) and (b) of
this section if such person transmits funds and contributor information
to the recipient political committee within the time periods prescribed
in paragraphs (a) and (b) of this section for forwarding contributions.
0
35. Amend Sec. 102.9 by:
0
a. Revising paragraph (a)(4);
0
b. In paragraph (b)(2) introductory text, paragraphs (b)(2)(i)(B) and
(b)(2)(ii), removing the phrase ``cancelled check'' and adding in its
place the phrase ``canceled check or record of electronic transfer'';
0
c. In paragraph (b)(2)(i)(B), removing the word ``documentation'' and
adding in its place the word ``record'';
0
d. In paragraph (b)(2)(ii), removing the word ``documentation'' and
adding in its place the words ``a record'';
0
f. Removing paragraph (b)(2)(iii); and
0
g. Revising paragraph (f).
The revisions read as follows:
Sec. 102.9 Accounting for contributions and expenditures (52 U.S.C.
30102(c)).
* * * * *
(a) * * *
(4) In addition to the account to be kept under paragraph (a)(1) of
this section, for contributions in excess of $50, the treasurer of a
political committee or an agent authorized by the treasurer shall
maintain a record of each contribution received. A record of a
contribution by check or written instrument must contain an image of
that instrument. A record of the receipt of a contribution must include
sufficient information to associate that contribution with its deposit
in the political committee's campaign depository, such as, for example,
a batch number.
* * * * *
(f) The treasurer shall maintain the records required by 11 CFR
110.1(l), concerning designations, redesignations, reattributions, and
the dates of contributions. If the treasurer does not maintain these
records, 11 CFR 110.1(l)(5) shall apply.
Sec. 102.10 [Amended]
0
36. Amend Sec. 102.10 by removing the phrase ``check or similar draft
drawn on'' and adding in its place the phrase ``check or similar draft,
including electronic transfer, from''.
Sec. 102.11 [Amended]
0
37. Amend Sec. 102.11 by removing ``journal'' and add in its place
``record'' wherever it appears.
PART 103--CAMPAIGN DEPOSITORIES (52 U.S.C. 30102(H))
0
38. The authority citation for part 103 continues to read as follows:
Authority: 52 U.S.C. 30102(h), 30111(a)(8).
0
39. Revise Sec. 103.3(a) to read as follows:
Sec. 103.3 Deposit of receipts and disbursements (52 U.S.C.
30102(h)(1)).
(a)(1) All receipts by a political committee shall be deposited in
account(s) established pursuant to 11 CFR 103.2, except that any
contribution may be, within 10 days of the treasurer's receipt,
returned to the contributor without being deposited. The treasurer
[[Page 216]]
of the committee shall be responsible for making such deposits. All
deposits shall be made within 10 days of the treasurer's receipt.
Contributions deposited in a merchant account of a payment processor
described in 11 CFR 102.8(d) in the ordinary course of that payment
processor's business are not receipts by the committee, but are,
instead, contributions to be forwarded by that payment processor under
11 CFR 102.8.
(2) A committee shall make all disbursements by check or similar
draft, including electronic transfer, from an account at its designated
campaign depository, except for expenditures of $100 or less made from
a petty cash fund maintained pursuant to 11 CFR 102.11. Funds may be
transferred from the depository for investment purposes, but shall be
returned to the depository before such funds are used to make
expenditures.
* * * * *
PART 104--REPORTS BY POLITICAL COMMITTEES AND OTHER PERSONS (52
U.S.C. 30104)
0
40. The authority citation for part 104 continues to read as follows:
Authority: 52 U.S.C. 30101(1), 30101(8), 30101(9), 30102(g) and
(i), 30104, 30111(a)(8) and (b), 30114, 30116, 36 U.S.C. 510.
Sec. 104.2 [Amended]
0
41. Amend Sec. 104.2(b) by removing the phrase ``or at the street
address identified in the definition of ``Commission'' in Sec. 1.2''.
Sec. 104.3 [Amended]
0
42. Amend Sec. 104.3(e)(5) by removing the phrase ``at the street
address identified in the definition of ``Commission'' in Sec. 1.2,''.
Sec. 104.4 [Amended]
0
43. Amend Sec. 104.4(d)(2) by removing the phrase ``typing the
treasurer's name'' and adding in its place the phrase ``electronic
signature''.
Sec. 104.6 [Amended]
0
44. Amend Sec. 104.6(c)(1) by removing the phrase ``, telephone or
telegram'' and adding in its place the phrase ``or telephone''.
Sec. 104.10 [Amended]
0
45. Amend Sec. 104.10(a)(4) and (b)(5) by removing the word
``documents'' and adding in its place the word ``records''.
Sec. 104.14 [Amended]
0
46. Amend Sec. 104.14 as follows:
0
a. In paragraph (b)(4)(iv), remove the word ``documentation'' and add
in its place the word ``records''; and
0
b. In paragraph (b)(4)(v), remove the word ``Documentation for'' and
add in its place the words ``Records of''.
Sec. 104.17 [Amended]
0
47. Amend Sec. 104.17(a)(4) and (b)(4) by removing the word
``documents'' and adding in its place the word ``records'' wherever it
appears.
Sec. 104.21 [Amended]
0
48. Amend Sec. 104.21(c)(3) by removing the phrase ``at the street
address identified in the definition of ``Commission'' in Sec. 1.2''.
Sec. 104.22 [Amended]
0
49. Amend Sec. 104.22 as follows:
0
a. In paragraph (a)(6)(ii)(A)(2), remove the term ``Internet Web site''
and add in its place the term ``website'';
0
b. In paragraphs (b)(2)(i) and (ii), remove the words ``Web sites'' and
add in its place the word ``websites'' wherever it appears; and
0
c. In paragraph (b)(2)(ii), remove the words ``Web site'' and add in
its place the word ``website'' wherever it appears.
PART 106--ALLOCATIONS OF CANDIDATE AND COMMITTEE ACTIVITIES
0
50. The authority citation for part 106 continues to read as follows:
Authority: 52 U.S.C. 30111(a)(8), 30116(b), 30116(g).
Sec. 106.2 [Amended]
0
51. Amend Sec. 106.2 as follows:
0
a. In paragraphs (a)(1), (b)(2)(ii), and (b)(2)(v), remove the word
``documentation'' and add in its place the word ``records''; and
0
b. In paragraph (b)(2)(iii)(D), remove the phrase ``supplies, and
telephone'' and add in its place the phrase ``supplies, internet
service, and telephone''.
PART 108--FILING COPIES OF REPORTS AND STATEMENTS WITH STATE
OFFICERS (52 U.S.C. 30113)
0
52. The authority citation for part 108 continues to read as follows:
Authority: 52 U.S.C. 30102(g), 30104(a)(2), 30111(a)(8), 30113,
30143.
Sec. 108.6 [Amended]
0
53. In Sec. 108.6(b), remove the phrase ``in facsimile copy by
microfilm or otherwise'' and add in its place ``by copy''.
PART 109--COORDINATED AND INDEPENDENT EXPENDITURES (52 U.S.C.
30101(17), 30116(A) AND (D), AND PUB. L. 107-155 SEC. 214(C))
0
54. The authority citation for part 109 continues to read as follows:
Authority: 52 U.S.C. 30101(17), 30104(c), 30111(a)(8), 30116,
30120; Sec. 214(c), Pub. L. 107-155, 116 Stat. 81.
Sec. 109.10 [Amended]
0
55. In Sec. 109.10(e)(2)(ii), remove the phrase ``typing the
treasurer's name'' and add in its place the phrase ``electronic
signature''.
PART 110--CONTRIBUTION AND EXPENDITURE LIMITATIONS AND PROHIBITIONS
0
56. The authority citation for part 110 continues to read as follows:
Authority: 52 U.S.C. 30101(8), 30101(9), 30102(c)(2) and (g),
30104(i)(3), 30111(a)(8), 30116, 30118, 30120, 30121, 30122, 30123,
30124, and 36 U.S.C. 510.
0
57. Amend Sec. 110.1 by:
0
a. In paragraph (b)(3)(i)(A), removing the phrase ``using a committee
check or draft'' and adding in its place the phrase ``using a committee
check or similar draft, including electronic transfer'';
0
b. In paragraph (b)(4)(i), removing the phrase ``is made by check,
money order, or other negotiable instrument which'';
0
c. In paragraph (b)(5)(ii)(B)(6), removing the phrase ``including
electronic mail'';
0
d. In paragraph (b)(5)(ii)(C)(7), removing the phrase ``, including
electronic mail'';
0
e. In paragraph (b)(6), adding a new fifth sentence after ``11 CFR
110.1(l)(4).'';
0
f. In paragraph (c)(1)(iii), removing the term ``Web site'' and add, in
its place the term ``website'';
0
g. In paragraph (k)(1), removing the phrase ``include the signature of
each contributor on the check, money order, or other negotiable
instrument or in a separate writing'' and adding in its place the
phrase ``be indicated by the signature of each contributor in
writing'';
0
h. In paragraph (k)(3)(ii)(B)(3), removing ``, including electronic
mail'';
0
i. In paragraph (l)(1), removing the phrases ``copy'' and ``full-size
photocopy of the check or written instrument'' and adding in their
places the phrases ``record'' and ``record that contains a complete
image of that instrument'', respectively;
0
j. In paragraph (l)(4)(i), removing the word ``copy'' and adding in its
place the word ``record'';
[[Page 217]]
0
k. In paragraph (l)(4)(ii), removing the phrase ``full-size photocopy
of'' and adding in its place the phrase ``record that contains a
complete image of''; and
0
l. In paragraph (l)(6), removing the word ``documentation'' and adding
in its place the words ``a record'' wherever it appears, and removing
the word ``copy'' and add in its place the word ``record'' wherever it
appears.
The addition reads as follows:
Sec. 110.1 Contributions by persons other than multicandidate
political committees (52 U.S.C. 30116(a)(1)).
* * * * *
(b) * * *
(6) * * * A contribution made in an electronic transaction is
considered to be made when the contributor authorizes the transaction.
* * *
* * * * *
0
58. Amend Sec. 110.2 by:
0
a. In paragraph (b)(4)(i), remove ``is made by check, money order, or
other negotiable instrument which'';
0
b. In paragraph (b)(6), add a fifth sentence after ``11 CFR
110.1(l)(4).''; and
0
c. In paragraph (e)(2), remove ``Web site'' and add in its place
``website''.
The addition reads as follows:
Sec. 110.2 Contributions by multicandidate political committees (52
U.S.C. 30116(a)(2)).
* * * * *
(b) * * *
(6) * * *A contribution made in an electronic transaction is
considered to be made when the contributor authorizes the transaction.
* * *
* * * * *
0
59. Amend Sec. 110.6 by:
0
a. Revising paragraph (b)(1);
0
b. In paragraph (c)(1)(ii), removing the phrase ``by letter'' and
adding in its place the phrase ``the report shall be provided in
writing'';
0
c. In paragraph (c)(1)(iv)(C), removing the phrase ``cash or by the
contributor's check or by the conduit's check'' and adding in its place
the phrase ``cash, by the contributor's check, by the conduit's check,
or by electronic transfer''; and
0
d. In paragraph (c)(1)(v), removing the phrase ``by letter'' and adding
in its place the phrase ``in writing''.
The revision reads as follows:
Sec. 110.6 Earmarked contributions (52 U.S.C. 30116(a)(8)).
* * * * *
(b) * * *
(1) For purposes of this section, earmarked means a designation,
instruction, or encumbrance, whether direct or indirect, express or
implied, oral or written, which results in all or any part of a
contribution or expenditure being made to, or expended on behalf of, a
clearly identified candidate or a candidate's authorized committee. A
contributor's authorization that a commercial payment processor, whose
usual and normal business is to process payments, transmit funds from
the contributor to the designated candidate or authorized committee in
the commercial payment processor's ordinary course of business does not
in itself constitute an earmark.
* * * * *
0
60. Amend Sec. 110.11 by:
0
a. In paragraph (a)(1), removing the phrase ``Internet websites'' and
adding in its place the phrase ``websites and internet applications'';
0
b. In paragraph (b)(3), removing the phrase ``World Wide Web address''
and adding in its place the phrase ``website address''; and
0
c. Revising paragraph (c)(5)(i).
The revision reads as follows:
Sec. 110.11 Communications; advertising; disclaimers (52 U.S.C.
30120).
* * * * *
(c) * * *
(5) * * *
(i) For purposes of this section, internet public communication
means any public communication over the internet that is placed or
promoted for a fee on another person's website, digital device,
application, or advertising platform. A public communication is
promoted for a fee where a payment is made to a website, digital
device, application, or advertising platform in order to increase the
circulation, prominence, or availability of the communication on that
website, digital device, application, or advertising platform.
* * * * *
Sec. 110.17 [Amended]
0
61. Amend Sec. 110.17(e)(1) and (2) by removing the words ``Web site''
and adding in their place the word ``website'' wherever it appears.
PART 111--COMPLIANCE PROCEDURE (52 U.S.C. 30109, 30107(A))
0
62. The authority citation for part 111 continues to read as follows:
Authority: 52 U.S.C. 30102(i), 30109, 30107(a), 30111(a)(8); 28
U.S.C. 2461 note; 31 U.S.C. 3701, 3711, 3716-3719, and 3720A, as
amended; 31 CFR parts 285 and 900-904.
Sec. 111.4 [Amended]
0
63. Amend Sec. 111.4 as follows:
0
a. In paragraph (a), remove the phrase ``to the General Counsel of the
Federal Election Commission at the street address identified in the
definition of ``Commission'' in Sec. 1.2'' and add in its place the
phrase ``addressed to the General Counsel''; and remove the phrase
``three (3) copies'' and add in its place ``three (3) copies of any
complaint not filed electronically''; and
0
b. In paragraph (d)(4), remove the phrase ``documentation supporting
the facts alleged if such documentation is'' and add in its place the
phrase ``records supporting the facts alleged if such records are''.
Sec. 111.5 [Amended]
0
64. Amend Sec. 111.5 as follows:
0
a. In paragraph (a), remove the word ``enclose'' and add in its place
the word ``provide''; and
0
b. In paragraph (b), remove the word ``enclosed'' and add in its place
the word ``provided''.
Sec. 111.6 [Amended]
0
65. Amend Sec. 111.6(a) by removing the phrase ``a letter or
memorandum'' and adding in its place the phrase ``a written response''.
Sec. 111.9 [Amended]
0
66. Amend Sec. 111.9(a) and (b) by removing the phrase ``by letter''
and adding in its place the phrase ``in writing'' wherever it appears.
Sec. 111.12 [Amended]
0
67. Amend Sec. 111.12 as follows:
0
a. In paragraph (a), remove the phrase ``documentary or other
tangible'' and add in its place the phrase ``records or other''; and
0
b. In paragraph (b), remove the word ``documents'' and add in its place
the word ``records''.
Sec. 111.13 [Amended]
0
68. Amend Sec. 111.13(c) and (d) by removing the phrase ``method
whereby'' and adding in its place the phrase ``method, including
electronically, whereby'' wherever it appears.
Sec. 111.15 [Amended]
0
69. Amend Sec. 111.15 as follows:
0
a. In paragraph (a), remove the phrase ``of the Federal Election
Commission at the street address identified in the definition of
``Commission'' in Sec. 1.2. If possible, three (3) copies should be
submitted''; and
0
b. In paragraph (c), remove the word ``documents'' and add in its place
the word ``records''.
0
70. Amend Sec. 111.16 by:
0
a. In paragraph (b), removing the word ``enclose'' and adding in its
place the word ``provide'';
0
b. Revising paragraph (c).
The revision reads as follows:
[[Page 218]]
Sec. 111.16 The probable cause to believe recommendation; briefing
procedures (52 U.S.C. 30109 (a)(3)).
* * * * *
(c) Within fifteen (15) days from receipt of the General Counsel's
brief, respondent may file a brief with the Commission Secretary,
setting forth respondent's position on the factual and legal issues of
the case.
* * * * *
Sec. 111.17 [Amended]
0
71. Amend Sec. 111.17(a) and (b) by removing the phrase ``by letter''
and adding in its place the phrase ``in writing'' wherever it appears.
Sec. 111.18 [Amended]
0
72. Amend Sec. 111.18(d) by removing the phrase ``by letter'' and
adding in its place the phrase ``in writing''.
Sec. 111.23 [Amended]
0
73. Amend Sec. 111.23 as follows:
0
a. In the introductory text to paragraph (a), remove the phrase ``so
advise the Commission by sending a letter of representation signed by
the respondent, which letter shall state the following'' and add in its
place the phrase ``give the Commission a written notice of
representation signed by the respondent, which shall include'';
0
b. In paragraph (a)(1), remove the word ``address'' and add in its
place the words ``address, email address''; and
0
c. In paragraph (b), remove the phrase ``a letter of representation''
and add in its place the phrase ``this notice''.
Sec. 111.35 [Amended]
0
74. Amend Sec. 111.35(e) by removing ``documentation'' and adding in
its place ``records''.
Sec. 111.36 [Amended]
0
75. Amend Sec. 111.36 as follows:
0
a. In paragraph (b), remove the word ``documentation'' and add in its
place the word ``records'' wherever it appears;
0
b. In paragraphs (c) and (d), remove the word ``documents'' and add in
its place the word ``records'' wherever it appears; and
0
c. In paragraph (d), remove the word ``document(s)'' and add in its
place the word ``records''.
0
d. In paragraph (e), remove the word ``documents'' and add in its place
the word ``records''.
Sec. 111.37 [Amended]
0
76. Amend Sec. 111.37(a) and (b) by removing the phrase ``by letter''
and adding in its place the phrase ``in writing'' wherever it appears.
Sec. 111.40 [Amended]
0
77. Amend Sec. 111.40(a) by removing the phrase ``by letter'' and
adding in its place the phrase ``in writing''.
PART 112--ADVISORY OPINIONS (52 U.S.C. 30108)
0
78. The authority citation for part 112 continues to read as follows:
Authority: 52 U.S.C. 30108, 30111(a)(8).
Sec. 112.1 [Amended]
0
79. Amend Sec. 112.1(e) by removing the phrase ``sent to the Federal
Election Commission, Office of General Counsel, at the street address
identified in the definition of ``Commission'' in Sec. 1.2'' and
adding in its place the phrase ``addressed to the Office of General
Counsel and filed with the Commission''.
Sec. 112.2 [Amended]
0
80. Amend Sec. 112.2(b) by removing the phrase ``and purchase at the
Public Disclosure and Media Relations Division of the Commission'' and
adding in its place the phrase ``at the Public Disclosure and Media
Relations Division of the Commission and on the Commission's website''.
Sec. 112.3 [Amended]
0
81. Amend Sec. 112.3(d) by removing the phrase ``sent to the Federal
Election Commission, Office of General Counsel, at the street address
identified in the definition of ``Commission'' in Sec. 1.2'' and
adding in its place the phrase ``filed with the Office of General
Counsel''.
Sec. 112.4 [Amended]
0
82. Amend Sec. 112.4(g) by removing the phrase ``sent by mail, or
personally delivered'' and adding in its place the phrase ``be
provided''.
PART 114--CORPORATE AND LABOR ORGANIZATION ACTIVITY
0
83. The authority citation for part 114 continues to read as follows:
Authority: 52 U.S.C. 30101(8), 30101(9), 30102, 30104,
30107(a)(8), 30111(a)(8), 30118.
Sec. 114.1 [Amended]
0
84. Amend Sec. 114.1(g) by removing the phrase ``mailings, oral
requests'' and adding in its place the phrase ``mailings, emails, oral
requests''.
Sec. 114.6 [Amended]
0
85. Amend Sec. 114.6(d)(2)(iii) by removing the phrase ``check drawn
on that account'' and adding in its place the phrase ``check or similar
draft, including electronic transfer''.
Sec. 114.8 [Amended]
0
86. Amend Sec. 114.8 as follows:
0
a. In paragraphs (d)(2) and (3), remove the word ``copy'' and add in
its place the word ``record''; and
0
b. In paragraph (d)(3), remove the word ``mailing'' and add in its
place the word ``solicitation''.
Sec. 114.9 [Amended]
0
87. Amend Sec. 114.9(d) by removing the word ``typewriters'' and
adding in its place the word ``computers''.
PART 116--DEBTS OWED BY CANDIDATES AND POLITICAL COMMITTEES
0
88. The authority citation for part 116 continues to read as follows:
Authority: 52 U.S.C. 30103(d), 30104(b)(8), 30111(a)(8), 30116,
30118, and 30141.
Sec. 116.8 [Amended]
0
89. Amend Sec. 116.8 as follows:
0
a. In the introductory text of paragraph (b), remove the phrase ``by
letter'' and add in its place the phrase ``in writing''; and
0
b. In the introductory text of paragraph (b), remove the phrase ``The
letter'' and add in its place the phrase ``The notification'' wherever
it appears.
Sec. 116.9 [Amended]
0
90. Amend Sec. 116.9(a)(2) by removing the phrase ``current address
and telephone number, and has attempted to contact the creditor by
registered or certified mail, and either in person or by telephone''
and adding in its place the phrase ``current address, telephone number,
and email address, and has attempted to contact the creditor by
registered or certified mail, and either in person, by telephone, or by
email''.
PART 200--PETITIONS FOR RULEMAKING
0
91. The authority citation for part 200 is amended to read as follows:
Authority: 52 U.S.C. 30107(a)(8), 30111(a)(8); 5 U.S.C. 553(e).
Sec. 200.2 [Amended]
0
92. Amend Sec. 200.2(b)(5) by removing the phrase ``addressed and
submitted to the Federal Election Commission, Office of General
Counsel, at the street address identified in the definition of
``Commission'' in Sec. 1.2'' and adding in its place the phrase
``addressed to the Office of General Counsel and filed pursuant to 11
CFR 100.19(g)''.
Sec. 200.3 [Amended]
0
93. Amend Sec. 200.3 as follows:
[[Page 219]]
0
a. In paragraph (a)(2), remove ``Send a letter to the Commissioner of
Internal Revenue, pursuant to 52 U.S.C. 30111(f), seeking the IRS's''
and add in its place the phrase ``Pursuant to 52 U.S.C. 30111(f), seek
the Internal Revenue Service's''; and
0
b. In paragraph (a)(3), remove the phrase ``Send a letter to'' and add
in its place the word ``Notify''.
Sec. 200.4 [Amended]
0
94. Amend Sec. 200.4(b) by removing the phrase ``sending a letter to''
and adding in its place the word ``notifying''.
Sec. 200.6 [Amended]
0
95. Amend Sec. 200.6(a)(5) by removing the phrase ``audio tapes'' and
adding in its place the phrase ``audio recordings''.
PART 201--EX PARTE COMMUNICATIONS
0
96. The authority citation for part 201 continues to read as follows:
Authority 52 U.S.C. 30107(a)(8), 30108, 30111(a)(8), and
30111(b); 26 U.S.C. 9007, 9008, 9009(b), 9038, and 9039(b).
Sec. 201.3 [Amended]
0
97. Amend Sec. 201.3 as follows:
0
a. In paragraph (b)(1), remove the phrase ``the letter'' and add in its
place te phrase ``the agreement'' wherever it appears; and
0
b. In paragraph (b)(2)(i), remove the word ``letter'' and add in its
place the word ``notification''.
PART 300--NON-FEDERAL FUNDS
0
98. The authority citation for part 300 continues to read as follows:
Authority: 52 U.S.C. 30104(e), 30111(a)(8), 30116(a), 30125, and
30143.
Sec. 300.2 [Amended]
0
99. Amend Sec. 300.2 in paragraph (m)(1)(iii), by removing the phrase
``Web address'' and adding in its place the phrase ``website address'';
and removing the phrase ``Web page'' and adding in its place the phrase
``web page''.
Sec. 300.64 [Amended]
0
100. Amend Sec. 300.64 as follows:
0
a. In paragraphs (c)(3)(ii) and (iii), remove the word ``written'' and
add in its place the word ``printed'' wherever it appears;
0
b. In paragraph (c)(3)(iii), remove the word ``non-written'' and add in
its place the word ``non-printed''; and
0
c. In paragraphs (c)(3)(v)(A) and (B), remove the word ``written''
wherever it appears.
PART 9003--ELIGIBILITY FOR PAYMENTS
0
101. The authority citation for part 9003 continues to read as follows:
Authority: 26 U.S.C. 9003 and 9009(b).
Sec. 9003.1 [Amended]
0
102. Amend Sec. 9003.1 as follows:
0
a. In paragraph (a)(1), remove the word ``letter'' and add in its place
the word ``writing'';
0
b. In paragraph (a)(2), remove the word ``letter'' and add in its place
the word ``agreement'' wherever it appears;
0
c. In paragraphs (b)(2) and (3), remove the word ``documentation'' and
add in its place the word ``record'' wherever it appears;
0
d. In paragraph (b)(4), remove the phrase ``computerized magnetic
media, such as magnetic tapes or magnetic diskettes'' and add in its
place the phrase ``digital storage devices'';
0
e. In paragraphs (b)(4) and (5), remove the word ``documentation'' and
add in its place the word ``records'' wherever it appears; and
0
f. In paragraph (b)(7), remove the phrase ``name and mailing address''
and add in its place the phrase ``name, email address, and mailing
address''.
0
103. Revise Sec. 9003.2(d) to read as follows:
Sec. 9003.2 Candidate certifications.
* * * * *
(d) Form. Major party candidates shall sign and submit the
certifications required under 11 CFR 9003.2 within 14 days after
receiving the party's nomination for election. Minor and new party
candidates shall sign and submit such certification within 14 days
after such candidates have qualified to appear on the general election
ballot in 10 or more States pursuant to 11 CFR 9002.2(a)(2). The
Commission, upon written request by a minor or new party candidate made
at any time prior to the date of the general election, may extend the
deadline for filing such certification, except that the deadline shall
be a date prior to the day of the general election.
Sec. 9003.3 [Amended]
0
104. Amend Sec. 9003.3(a)(1)(vi)(A) by removing the phrase ``is made
by check, money order, or other negotiable instrument which''.
0
105. Amend Sec. 9003.5 by:
0
a. Revising the section heading;
0
b. Revising the paragraph heading of paragraph (b);
0
c. In paragraphs (b)(1) and (b)(2)(ii), removing the phrase ``canceled
check negotiated by the payee'' and adding in its place the phrase
``canceled check negotiated by the payee or a record of electronic
transfer to the payee'' wherever it appears;
0
d. In paragraphs (b)(1)(ii)(A) and (B), removing the word ``documents''
and adding in its place the word ``records'' wherever it appears;
0
e. In paragraph (b)(1)(iii), removing the word ``documentation'' and
adding in its place the word ``record'';
0
f. In paragraphs (b)(1)(iv), (b)(4), and (c), removing the word
``documentation'' and adding in its place the word ``records'' wherever
it appears; and
0
g. In paragraph (b)(1)(iv), removing the phrase ``canceled check
negotiated by the payee'' and adding in its place the phrase ``canceled
check negotiated by the payee or the record of electronic transfer to
the payee''.
The revisions read as follows:
Sec. 9003.5 Records of disbursements.
* * * * *
(b) Records required. * * *
* * * * *
Sec. 9003.6 [Amended]
0
106. Amend Sec. 9003.6 as follows:
0
a. In paragraph (a), remove the phrase ``computerized magnetic media,
such as magnetic tapes or magnetic diskettes'' and add in its place the
phrase ``digital storage devices'';
0
b. Remove paragraph (b) and redesignate paragraph (c) as paragraph (b);
and
0
c. In newly redesignated paragraph (b), remove the word
``documentation'' and add in its place the word ``records''.
PART 9004--ENTITLEMENT OF ELIGIBLE CANDIDATES TO PAYMENTS; USE OF
PAYMENTS
0
107. The authority citation for part 9004 continues to read as follows:
Authority: 26 U.S.C. 9004 and 9009(b).
Sec. 9004.6 [Amended]
0
108. Amend Sec. 9004.6 as follows:
0
a. In paragraph (a)(1), remove the phrase ``telephone service,
typewriters, and computers'' and add in its place the phrase
``telephone and internet service, and computers or other electronic
devices''; and
0
b. In paragraph (b)(3), remove the phrase ``telephone service'' and add
in its place the phrase ``telephone and internet service''.
Sec. 9004.7 [Amended]
0
109. Amend Sec. 9004.7(b)(5)(iv) and (v) by removing the word
``documentation'' and adding in its place the word ``records'' wherever
it appears.
[[Page 220]]
Sec. 9004.9 [Amended]
0
110. Amend Sec. 9004.9(d)(1)(i) and (e) by removing the word
``documentation'' and adding in its place the word ``records'' wherever
it appears.
PART 9007--EXAMINATIONS AND AUDITS; REPAYMENTS
0
111. The authority citation for part 9007 continues to read as follows:
Authority: 26 U.S.C. 9007 and 9009(b).
Sec. 9007.1 [Amended]
0
112. Amend Sec. 9007.1 as follows:
0
a. In paragraph (b)(1) introductory text, remove the phrase ``the
Commission may request additional or updated computerized information''
and add in its place the phrase ``the Commission may request additional
or updated information''; and
0
b. In paragraphs (b)(1)(iv) and (c)(2), remove the word
``documentation'' and add in its place the word ``records'' wherever it
appears.
Sec. 9007.7 [Amended]
0
113. Amend Sec. 9007.7 as follows:
0
a. In paragraph (a), remove the word ``documents'' and add in its place
the words ``documents, records,'' wherever it appears; and
0
b. In paragraph (b)(2), remove the word ``tapes'' and add in its place
the word ``recordings'' wherever it appears.
PART 9032--DEFINITIONS
0
114. The authority citation for part 9032 continues to read as follows:
Authority: 26 U.S.C. 9032 and 9039(b).
Sec. 9032.2 [Amended]
0
115. Amend Sec. 9032.2(d) by removing the phrase ``by letter'' and
adding in its place the phrase ``in writing''.
PART 9033--ELIGIBILITY FOR PAYMENTS
0
116. The authority citation for part 9033 continues to read as follows:
Authority: 26 U.S.C. 9003(e), 9033 and 9039(b).
0
117. Amend Sec. 9033.1 by:
0
a. Revising paragraph (a)(1);
0
b. In paragraphs (b)(2) through (6), removing the word
``documentation'' and adding in its place the word ``records'' wherever
it appears;
0
c. In paragraph (b)(5), removing the phrase ``computerized magnetic
media, such as magnetic tapes or magnetic diskettes'' and adding in its
place the phrase ``digital storage devices''; and
0
d. Revising paragraph (b)(8).
The revisions read as follows:
Sec. 9033.1 Candidate and committee agreements.
(a) * * *
(1) A candidate seeking to become eligible to receive Presidential
primary matching fund payments shall agree in a writing signed by the
candidate to the Commission that the candidate and the candidate's
authorized committee(s) will comply with the conditions set forth in 11
CFR 9033.1(b). The candidate may submit the written agreement required
by this section at any time after January 1 of the year immediately
preceding the Presidential election year.
* * * * *
(b) * * *
(8) The candidate and the candidate's authorized committee(s) will
submit the name, email address, and mailing address of the person who
is entitled to receive matching fund payments on behalf of the
candidate and the name and address of the campaign depository
designated by the candidate as required by 11 CFR part 103 and 11 CFR
9037.3. Changes in the information required by this paragraph shall not
be effective until submitted to the Commission in a writing signed by
the candidate or the Committee treasurer.
* * * * *
Sec. 9033.2 [Amended]
0
118. Amend Sec. 9033.2 as follows:
0
a. In paragraph (a)(1), remove the phrase ``letter containing the
required certifications'' and add in its place the word
``certifications''; and
0
b. In paragraph (c), remove the word ``documentation'' and add in its
place the word ``records''.
Sec. 9033.5 [Amended]
0
119. Amend paragraph (a)(2) of Sec. 9033.5 by removing ``by letter''
and adding in its place ``in writing''.
0
120. Amend Sec. 9033.11 by:
0
a. Revising the section heading;
0
b. Revising the paragraph heading of paragraph (b);
0
c. In the introductory text to paragraph (b)(1), adding the phrase ``or
a record of electronic transfer'' after the words ``canceled check
negotiated by the payee'';
0
d. In paragraphs (b)(1)(ii)(A) and (B), removing the word ``documents''
and adding in its place the word ``records'' wherever it appears;
0
e. In the introductory text to paragraph (b)(1)(iii) and paragraph
(b)(1)(iv), removing the word ``documentation'' and adding in its place
the word ``record'' wherever it appears;
0
f. In paragraph (b)(1)(iv), removing ``the payee'' and adding in its
place ``the payee or the record of electronic transfer'';
0
g. In paragraph (b)(2)(ii), adding the phrase ``or a record of
electronic transfer'
[…truncated; see source link]Indexed from Federal Register on January 2, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.