81 FR 76416 - Technological Modernization
FEDERAL ELECTION COMMISSION Federal Register Volume 81, Issue 212 (November 2, 2016)
Federal Register Volume 81, Issue 212 (November 2, 2016)
| Page Range | 76416-76444 | |
| FR Document | 2016-25102 |
[Federal Register Volume 81, Number 212 (Wednesday, November 2, 2016)] [Proposed Rules] [Pages 76416-76444] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-25102] [[Page 76415]] Vol. 81 Wednesday, No. 212 November 2, 2016 Part II Federal Election Commission ----------------------------------------------------------------------- 11 CFR Parts 1, 2, 4, et al. Technological Modernization; Proposed Rule Federal Register / Vol. 81 , No. 212 / Wednesday, November 2, 2016 / Proposed Rules [[Page 76416]] ----------------------------------------------------------------------- FEDERAL ELECTION COMMISSION 11 CFR Parts 1, 2, 4, 5, 6, 7, 100, 102, 103, 104, 105, 106, 108, 109, 110, 111, 112, 114, 116, 200, 201, 300, 9002, 9003, 9004, 9007, 9032, 9033, 9034, 9035, 9036, 9038, and 9039 [Notice 2016-12] Technological Modernization AGENCY: Federal Election Commission. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: The Federal Election Commission requests comment on proposed changes to its regulations to address contributions and expenditures that are made by electronic means, such as through internet-based payment processors or text messaging; to eliminate and update references to outdated technologies; and to address similar issues. The Commission has not made any final decisions about the issues and proposals presented in this rulemaking. DATES: Comments must be received on or before December 2, 2016. The Commission will determine at a later date whether to hold a public hearing on this proposed rule. Anyone wishing to testify at such a hearing must file timely written comments and must include in the written comments a request to testify. If a hearing is to be held, the Commission will publish a document in the Federal Register announcing the date and time of the hearing. ADDRESSES: All comments must be in writing. Commenters are encouraged to submit comments electronically via the Commission's Web site at http://www.fec.gov/fosers, reference REG 2013-01, or by email to [email protected]. Alternatively, commenters may submit comments in paper form, addressed to the Federal Election Commission, Attn.: Neven F. Stipanovic, Acting Assistant General Counsel, 999 E Street NW., Washington, DC 20463. Each commenter must provide, at a minimum, his or her first name, last name, city, state, and zip code. All properly submitted comments, including attachments, will become part of the public record, and the Commission will make comments available for public viewing on the Commission's Web site and in the Commission's Public Records Office. Accordingly, commenters should not provide in their comments any information that they do not wish to make public, such as a home street address, personal email address, date of birth, phone number, social security number, or driver's license number, or any information that is restricted from disclosure, such as trade secrets or commercial or financial information that is privileged or confidential. FOR FURTHER INFORMATION CONTACT: Mr. Neven F. Stipanovic, Acting Assistant General Counsel, or Ms. Jessica Selinkoff, Attorney, 999 E Street NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530. SUPPLEMENTARY INFORMATION: The Federal Election Commission is proposing to revise its regulations at 11 CFR chapter I to address electronic transactions, such as contributions made using credit cards, by text messages, or through internet-based payment processors. The Commission is also proposing regulatory revisions to facilitate electronic accounting, recordkeeping, reporting, and redesignation by political committees. Additionally, as a retrospective assessment of Commission regulations,\1\ the proposed revisions would eliminate or update references to outmoded technologies and would enable interested parties to communicate electronically with the Commission for certain purposes. --------------------------------------------------------------------------- \1\ See generally, Jeffrey S. Lubbers, A Guide to Federal Agency Rulemaking 355-361 (5th ed. 2012) (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''). --------------------------------------------------------------------------- A. Rulemaking History On May 2, 2013, the Commission published in the Federal Register an Advance Notice of Proposed Rulemaking (``ANPRM'').\2\ In the ANPRM, the Commission solicited comment on topics such as whether and how it should revise its regulations to reflect technological advances, whether industry standards in processing electronic transactions would be relevant to any such revisions, and how political committees and other persons engage in electronic transactions and recordkeeping. --------------------------------------------------------------------------- \2\ Technological Modernization, 78 FR 25635 (May 2, 2013). --------------------------------------------------------------------------- The Commission received three substantive comments in response to the ANPRM.\3\ Two commenters stated that the Commission should update its regulations by replacing technology-specific references with broader criteria that are less likely to grow stale as technology develops. One commenter suggested that the Commission could continue its current practice of using advisory opinions to address specific technologies. The commenters also provided comments regarding specific regulations, as discussed in more detail below. --------------------------------------------------------------------------- \3\ The Internal Revenue Service also submitted comments indicating that it sees no conflict between this rulemaking and the Internal Revenue Code or Treasury regulations. See 52 U.S.C. 30111(f). --------------------------------------------------------------------------- After reviewing these comments and engaging in additional deliberation, the Commission is now proposing the changes described in this document. The Commission seeks comment on these proposals. B. The Growing Use of Electronic Transactions, Records, and Communications Electronic financial transactions are commonplace. According to the most recent triennial study conducted by the Federal Reserve System, ``payments have become increasingly card-based,'' ``fewer checks enter the banking system as paper at all,'' and the ``number of noncash payments in the United States increased at a compound annual rate . . . of 4.4 percent'' from 2009 to 2012.\4\ Payments using prepaid cards increased at the fastest rate (15.8%) among payment types between 2009 and 2012.\5\ In 2009, electronic payments--whether made by card (such as debit, credit, or prepaid) or through automated clearinghouses-- ``collectively exceed[ed] three-quarters of all noncash payments'' in the United States.\6\ And electronic financial transactions are occurring not only through desktop computers or credit card networks, but from consumers' smartphones as well. A 2015 study of smartphone use showed that 64% of American adults own smartphones and that 57% of these people had used their smartphones in the past year for online banking.\7\ [[Page 76417]] Among 18-29 year old smartphone owners, about 70% had used smartphones in the past year for online banking.\8\ --------------------------------------------------------------------------- \4\ Fed. Reserve Sys., 2013 Federal Reserve Payments Study: Recent and Long-Term Payment Trends in the United States: 2003-2012, at 6-7 (2013) (``2013 Study''), www.frbservices.org/files/communications/pdf/research/2013_payments_study_summary.pdf. The 2013 Study notes that ``the growth in the number of [credit, debit, and prepaid] card payments was driven by the replacement of both cash and checks.'' Id. at 10. Moreover, even as more checks are being processed electronically, the total number of checks paid in 2012 was ``less than half the number of checks that were paid in 2003,'' for a total of only 15% of all payments in 2012. Id. at 8, 12. \5\ Id. at 8. \6\ Fed. Reserve Sys., 2010 Federal Reserve Payments Study: Noncash Payment Trends in the United States: 2006-2009, at 4 (2011), www.frbservices.org/files/communications/pdf/press/2010_payments_study.pdf (showing similar trends from 2006-2009). \7\ Pew Research Ctr., U.S. Smartphone Use in 2015, at 2, 5 (2015), available at www.pewinternet.org/files/2015/03/PI_Smartphones_0401151.pdf. \8\ Id. at 5-6. --------------------------------------------------------------------------- Consistent with general payment trends, people are increasingly using cards and electronic methods to contribute to political committees. A series of studies by the Pew Research Center of the internet and elections from 2006 to 2012 shows that online political contributions have become more common since 2008 (although most contributions are still made in person, over the phone, or by mail).\9\ Among adults who donated to presidential candidates in the 2012 election, 50% donated ``online or via email.'' \10\ As of September 2012--only a few months after the Commission had approved the use of text messaging to make contributions--10% of those who made contributions to presidential candidates did so by ``text message from their cell phone or using a cell phone app.'' \11\ --------------------------------------------------------------------------- \9\ Aaron Smith, Pew Research Ctr. Internet and Am. Life Project, Civic Engagement in the Digital Age 24 (2013), www.pewinternet.org/files/old-media//Files/Reports/2013/PIP_CivicEngagementintheDigitalAge.pdf (finding that, of 16% of Americans who had made political contribution in 2012, 23% had done so only over internet, while 60% had done so only offline); see also Aaron Smith, Pew Research Ctr. Internet and Am. Life Project, The Internet and Campaign 2010, at 21 (2011), www.pewinternet.org/~/ media//Files/Reports/2011/Internet%20and%20Campaign%202010.pdf (finding that online contributions increased from three percent in 2006 mid-term elections to four percent in 2010); Aaron Smith, Pew Internet and Am. Life Project, The Internet's Role in Campaign 2008, at 38-39 (2009), www.pewinternet.org/~/media//Files/Reports/2009/ The_Internets_Role_in_Campaign_2008.pdf (showing that nine percent made online contributions). \10\ Aaron Smith & Maeve Duggan, Pew Research Ctr. Internet and Am. Life Project, Presidential Campaign Donations in the Digital Age 2 (2012), www.pewinternet.org/~/media/Files/Reports/2012/ PIP_State_of_the_2012_race_donations.pdf (finding that 67% contributed in person, over telephone, or through mail); see also Republican Nat'l Comm., Growth & Opportunity Project 58 (2013), http://goproject.gop.com/rnc_growth_opportunity_book_2013.pdf (noting that, in 2012, ``email raised more than twice the percentage of total funds it raised in 2008''). \11\ Smith & Duggan, supra note 10, at 2. --------------------------------------------------------------------------- Coinciding with the increased use of electronic payments is the regular use of electronic records, including transactional records, and electronic communications. A Government Accounting Office report on the U.S. Postal Service in 2013 found that the postal service faces significant decreases in mail volume--the volume of first-class mail has declined 33 percent since 2001 and the volume of standard mail (primarily advertising) has declined 23 percent since 2007--``as online communication and e-commerce expand.'' \12\ The report noted that ``many businesses and consumers have moved to electronic payments over the past decade in lieu of using the mail to pay bills,'' with fewer than 50% of all bills paid by paper mail in 2010.\13\ --------------------------------------------------------------------------- \12\ See U.S. Gov't Accountability Office, GAO-13-562T, U.S. Postal Service: Urgent Action Needed to Achieve Financial Sustainability 2-3 (2013), www.gao.gov/assets/660/653841.pdf. But see Lisa Rein, Federal Government Still Depends Heavily on Snail Mail, Wash. Post, June 5, 2011, www.washingtonpost.com/politics/federal-government-still-depends-heavily-on-snail-mail/2011/06/05/AGIA8hJH_story.html (describing increase in government use of first- class mail); Republican Nat'l Comm., Growth & Opportunity Project 59 (2013) (noting continuing relevance of direct mail in political fundraising as it ``raised twice as much as the web'' for Republican Party in 2012 presidential election). \13\ See U.S. Gov't Accountability Office, supra note 12, at 3 (attributing decrease in paper mail to increase in ``competition from electronic alternatives''). --------------------------------------------------------------------------- The public is moving from paper to electronic methods in terms of obtaining government information as well. A 2015 study showed that 40% of smartphone owners had looked up government services or information from their phones in the past year.\14\ At the same time, the federal government has also been transitioning to electronic records management. A 2011 Presidential Memorandum directed towards records management reform noted that ``[d]ecades of technological advances have transformed agency operations, creating challenges and opportunities for agency records management. Greater reliance on electronic communication and systems has radically increased the volume and diversity of information that agencies must manage.'' \15\ Indeed, a bipartisan congressional group noted in 2014 that the ``acceptance of electronic documents has become a cornerstone of internet commerce and is vital to our country's economy'' and urged federal government adoption of tools, such as electronic signatures, which ``have reduced paper burdens for consumers and streamlined business operations throughout the United States, providing remarkable consumer gains in terms of convenience, ease of use, transaction speed and reduced costs.'' \16\ --------------------------------------------------------------------------- \14\ Pew Research Ctr., U.S. Smartphone Use in 2015, at 5 (2015), www.pewinternet.org/files/2015/03/PI_Smartphones_0401151.pdf. \15\ Presidential Memorandum, Managing Government Records, 76 FR 75423, 75423 (Dec. 1, 2011); see also Office of Mgmt. & Budget & Nat'l Archives and Records Admin., M-12-18, Managing Government Records Directive (2012), www.whitehouse.gov/sites/default/files/omb/memoranda/2012/m-12-18.pdf (setting goals and steps for federal agencies to eliminate paper and use electronic recordkeeping). \16\ Julian Hattem, Lawmakers Want More E-signatures, The Hill, July 14, 2014, http://www.thehill.com/policy/technology/212170-lawmakers-want-more-e-signatures. --------------------------------------------------------------------------- In recent years, the Commission has recognized this trend towards electronic records and communication by establishing nonregulatory procedures for the public to electronically submit Freedom of Information Act (``FOIA'') requests, comments on rulemakings, and comments on draft advisory opinions.\17\ --------------------------------------------------------------------------- \17\ See, e.g., FEC, Freedom of Information Act, www.fec.gov/press/foia.shtml#search=FOIA (last visited Oct. 5, 2016); FEC, Procedures Regarding Draft Advisory Opinions, www.fec.gov/law/draftaos.shtml (last visited Oct. 5, 2016); FEC, Submit Comments on Ongoing Rulemakings, sers.fec.gov/fosers (last visited Oct. 4, 2016). --------------------------------------------------------------------------- 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. 30101-46 (``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 only by cash, check, or ``draft,'' without taking into account 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 considering updates to its regulations, as described below. C. Proposed General Definitions Many of the Commission's current regulations do not account for technological developments in the creation, maintenance, and submission of electronic documentation, particularly in the context of electronic transactions. The Commission therefore proposes to revise its regulations to encompass electronic documents and transactions. Specifically, the Commission proposes to add new general definitions to 11 CFR part 100--for the terms ``record,'' ``written, writing, and a writing,'' and ``signature and signed''--and to revise the existing definition of ``file, filed, and filing'' at 11 CFR 100.19. The Commission intends each of these definitions to 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).\18\ [[Page 76418]] 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. --------------------------------------------------------------------------- \18\ See 11 CFR 9001.1 (applying definitions in part 100 to public finance regulations unless expressly stated otherwise), 9031.1 (same). The proposed part 100 definitions would 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''--Proposed 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.\19\ The Funding Acts similarly require that certain records be kept, and furnished to the Commission on request.\20\ 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.\21\ The Commission has therefore received numerous requests for guidance regarding how its recordkeeping provisions apply to electronic records.\22\ --------------------------------------------------------------------------- \19\ 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). \20\ 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) (authorizing Commission to require keeping and submission of records), 9039(b) (same). \21\ 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). \22\ 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 76 (2014), www.fec.gov/pdf/candgui.pdf (describing recordkeeping for credit card disbursements). --------------------------------------------------------------------------- The Commission now proposes to add a general definition of ``record'' at 11 CFR 100.34 that would expressly include both paper and electronic records. Proposed 11 CFR 100.34 has two components. First, Sec. 100.34(a) would define ``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,\23\ the Federal Rules of Evidence,\24\ Federal Rules of Civil Procedure,\25\ the Electronic Signatures in Global and National Commerce Act (also known as the E-Sign Act),\26\ and the Uniform Electronic Transactions Act (``UETA'').\27\ The proposed definition uses the term ``information'' (as do the Black's Law Dictionary, E-Sign Act, and UETA definitions of ``record'') rather 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 proposing to use 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. --------------------------------------------------------------------------- \23\ 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)). \24\ 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.''). \25\ 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''). \26\ 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''). \27\ See Unif. Elec. Transactions Act 2(7) (Nat'l Conference of Comm'rs on Unif. State Laws 1999), www.uniformlaws.org/shared/docs/electronic%20transactions/ueta_final_99.pdf (``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 47 states and the District of Columbia. --------------------------------------------------------------------------- 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 proposes to include 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 Commission proposes to require 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 Commission proposes to require 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 Commission intends the definition to 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. The Commission seeks comment on the proposed definition of ``record.'' Is it too narrow or too broad? Would the proposed definition benefit from providing specific examples of ``records''? If so, what examples should the Commission add? Second, proposed 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 proposed 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 currently 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. If the Commission adopts proposed Sec. 100.34(b), it would remove [[Page 76419]] the separate requirements in 11 CFR 102.9(a)(4)(ii) and 9036.2(b)(1)(vi).\28\ --------------------------------------------------------------------------- \28\ The Commission does not propose to remove or amend general requirements in the Funding Act regulations that political committees and other persons provide documentation (including user guides, technical manuals, formats, and layouts) and personnel, as necessary, to explain the capabilities of software produced to the Commission. See, e.g., 11 CFR 9003.1(b)(4), 9003.6(c), 9033.1(b)(5), 9033.12(c). These more extensive requirements remain necessary in the context of the mandatory audits of committees that receive public funds. --------------------------------------------------------------------------- In conjunction with the proposed definition, the Commission proposes to make conforming amendments to a number of regulations. First, the Commission proposes to make 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) (recordkeeping for bank loans), 100.82(e)(2)(ii) (same), 100.93(j)(1) through (3) (recordkeeping requirement for travel by aircraft and other conveyances), 100.142(e)(1)(i) (recordkeeping for bank loans), 100.142(e)(2)(ii) (same), 102.9(b)(2)(i)(B) and (b)(2)(ii) (recordkeeping for disbursements), 102.9(f) (recordkeeping requirements for designations, redesignations, attributions, and dates of contributions), 102.11 (written journal of disbursements from petty cash funds), 104.10(a)(4) (recordkeeping requirement in support of allocation), 104.10(b)(5) (same), 104.14(b)(4)(iv) and (v) (recordkeeping requirement for loan repayments), 104.17(a)(4) (recordkeeping requirement in support of allocation), 104.17(b)(4) (same), 106.2(a)(1) (same), 106.2(b)(2)(ii) (same), 106.2(b)(2)(v) (same), 110.1(l)(1) (recordkeeping for designations of contributions), 110.1(l)(4)(i) (recordkeeping for date contribution made, redesignation, and reattribution), 110.1(l)(6) (same), 111.4(d)(4) (enforcement complaints), 111.12(a) and (b) (subpoenas duces tecum in the enforcement process),\29\ 111.15(c) (agreements regarding production of documents), 111.35(e) (submissions challenging administrative fines), 111.36(b) through (e) (same), 114.8(d)(2) and (3) (trade association solicitation approvals), 9003.1(b)(2) through (5) (conditions for public funding eligibility), 9003.5 (recordkeeping for disbursements), 9003.5(b), (b)(1)(ii)(A) and (B), (b)(1)(iii) and (iv), (b)(4), and (c) (same), 9003.6(c) (production of computer information), 9004.7(b)(5)(iv) and (v) (recordkeeping for payments for accommodations and travel), 9004.9(d)(1)(i) and (e) (determining assets of publicly funded committees), 9007.1(b)(1)(iv) and (c)(2) (audits of publicly funded committees), 9033.1(b)(2) through (6) (conditions for public funding eligibility), 9033.2(c) (matching fund submissions), 9033.11 (recordkeeping for disbursements), 9033.11(b), (b)(1)(ii)(A) and (B), (b)(1)(iii) and (iv), (b)(4), and (c) (same), 9033.12(c) (production of computer information), 9034.2(c)(1)(iii) (recordkeeping for attribution of contributions), 9034.5(c)(1) and (d) (reporting debts), 9034.7(b)(5)(iv) and (v) (same), 9034.8(b)(4) (joint fundraising recordkeeping), 9035.1(c)(3) (publicly funded committee expenditure limitation compliance), 9036.1(b)(3), (4), and (7) (matching fund submissions), 9036.2(b)(1)(vi) and (vii) (same), 9036.3(b), (b)(4), and (d) (same), 9036.4(b)(4) (same), 9036.5(c)(1) (matching fund resubmissions), 9038.1(b)(1)(iv) and (c)(2) (audits of publicly funded committees), 9038.2(b)(3) (matching fund repayments), 9039.2(a)(3) and (b) (continuing review of publicly funded committees), and 9039.3(b)(2)(vi) (subpoenas). The Commission proposes to refer to 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 are intended to refer only to paper materials or to mean something other than what is meant by ``record.'' The Commission seeks comment on whether these proposed conforming amendments will enhance the clarity of the amended regulations. In addition, are there other Commission regulations that should be revised to incorporate the defined term ``record'' in lieu of another term? \30\ --------------------------------------------------------------------------- \29\ The proposed revisions to 11 CFR 111.12(a) and 111.15(c) would 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). \30\ The Commission is also proposing to replace the term ``document'' in certain regulations with ``writing,'' as discussed below. The Commission is not proposing to revise 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 proposes to replace 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.'' 11 CFR 110.1(l)(1) and (l)(4)(ii); see also 11 CFR 9036.1(b)(5) and (6) (referring to records that include ``full-size photocopy'' of contribution checks). Recognizing that such records may reasonably be retained in forms other than ``a full-size photocopy,'' the Commission proposes to amend 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. Are there other Commission regulations that similarly incorporate unnecessarily narrow record formats and should be expanded to include electronic records? The Commission does not propose to revise 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. The Commission welcomes comment on whether it should simplify Sec. 9036.1(b)(3) to provide only one procedure applicable to all records. Finally, the Commission proposes to make conforming revisions to two provisions that describe the administrative record in public finance matters. The Commission proposes to add ``records'' to the lists of materials that comprise the administrative record for final determinations in Sec. Sec. 9007.7(a) and 9038.7(a). What additional conforming amendments should the Commission make in conjunction with the proposed definition of ``record''? For example, the Commission defines ``records'' for purposes of the lobbyist bundling rule in 11 CFR 104.22(a)(6)(ii)(A) as ``written evidence (including writings, charts, computer files, tables, spreadsheets, databases, or other data or data compilations stored in any medium from which information can be obtained) that the reporting committee or candidate involved attributes to a lobbyist/registrant.'' Should the Commission amend this or other provisions in light of the proposed definition of ``record''? 2. New Definitions of ``Writing'' and ``Written''--Proposed 11 CFR 100.35 FECA requires certain reports, statements, and other materials to be ``written'' or ``in writing.'' \31\ The [[Page 76420]] Funding Acts have similar ``writing'' and ``written'' requirements.\32\ 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.\33\ The Commission has, however, interpreted at least one of these regulations to encompass certain categories of electronic documents.\34\ --------------------------------------------------------------------------- \31\ See, e.g., 52 U.S.C. 30101(8)(B)(vii)(II) (instrument for loans), 30101(9)(A)(ii) (contract to make expenditure), 30102(e)(1) (designation of committee), 30103(d)(1) (termination statement), 30104(a)(6)(A) (48-hour notice), 30108(a) (advisory opinion requests and advisory opinions), 30109(a)(1) (enforcement complaints), 30109(a)(12)(A) (confidentiality waiver), 30118(b)(4)(B) (semiannual solicitations); see also 52 U.S.C. 30107(a)(1) (Commission authority to require reports), 30124(a) (fraudulent misrepresentation). \32\ See, e.g., 26 U.S.C. 9002(1) (authorization of committee), 9003(a) (agreement for eligibility for payment), 9032(1) (authorization of committee), 9032(9) (person authorized to incur expense), 9033(a) (agreement for eligibility for payment), 9034(a) (written instrument as contribution); see also 26 U.S.C. 9009(b) (Commission's authority to require the keeping and submission of records), 9039(b) (same). \33\ See, e.g., 11 CFR 102.7(c) (treasurer's authorization), 109.33(a) (assignments), 110.1(b) (redesignation of contribution), 9003.3(a)(1)(i)(C) (designations to GELAC), 9007.2(c) (disputing determinations). \34\ 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)). --------------------------------------------------------------------------- To clarify that ``written'' material or material ``in writing'' can be either tangible or electronic, the Commission is proposing to add a new general definition at 11 CFR 100.35.\35\ The proposed definition would essentially replicate 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.'' \36\ In this proposed 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) used in lieu of text--that may arise as new forms of electronic writing emerge in the future.\37\ As in the definition of ``record,'' the Commission proposes that ``writing'' may be set down in any medium or form, including electronic. The examples in the proposed 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. --------------------------------------------------------------------------- \35\ Some Commission regulations that require a document to be ``in writing'' or ``written'' also require the document to be signed. The Commission is proposing a new definition of ``signed,'' below. \36\ 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). \37\ See Elahe Izadi, The Word of the Year Is Not Actually a Word. It's this Emoji: [heart emoji], Wash. Post, Dec. 29, 2014, www.washingtonpost.com/news/the-intersect/wp/2014/12/29/the-word-of-the-year-is-not-actually-a-word-its-this-emoji (noting that 2014's annual survey resulted in graphic symbol as most frequently used English ``word'' on internet). --------------------------------------------------------------------------- The Commission seeks comment on the proposed definition. Is the definition broad enough to encompass writings in various media, while also specific enough to provide meaningful guidance? Is any part of the definition unnecessary or potentially problematic? Are the examples of ``medi[a] and form[s]'' helpful? Would the proposed definition benefit from different or additional examples? Should the Commission specifically require that a writing be reviewable \38\ and/or reproducible,\39\ or would that requirement be adequately encompassed by the proposed definition of ``record,'' as discussed above? --------------------------------------------------------------------------- \38\ See Writing, Black's Law Dictionary (10th ed. 2014) (defining ``writing'' as any ``intentional recording of words . . . that may be viewed or heard with or without mechanical aids. This includes hard-copy documents, electronic documents on computer media, audio and videotapes, emails, and any other media on which words can be recorded.''). \39\ See 15 U.S.C. 7001(e) (providing that if statute or regulation requires certain records to ``be in writing, the legal effect, validity, or enforceability of an electronic record of such . . . record may be denied if such electronic record is not in a form that is capable of being retained and accurately reproduced for later reference''). --------------------------------------------------------------------------- In conjunction with the proposed definition, the Commission proposes to make conforming changes to a number of regulations, as described below. First, the Commission proposes to amend 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. See 11 CFR 110.1(b)(5)(ii)(B)(6) (notification of redesignation), 110.1(b)(5)(ii)(C)(7) (same), 110.1(k)(3)(ii)(B)(3) (notification of reattribution). These references to ``electronic mail'' will be redundant if the Commission adopts the proposed 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 proposes to remove these three references to electronic mail. Second, the Commission proposes to make conforming changes regarding notifications, reports, and other communications that, under existing regulations, must be made by ``letter.'' In light of the proposed broad definition of ``writing,'' and to avoid an implication that the communications described in those provisions must be on paper, the Commission proposes to replace each reference to ``letter'' with ``writing'' in the following provisions: 11 CFR 100.3(a)(3) (candidate disavowal), 110.6(c)(1)(v) (conduit reporting), 111.9(a) and (b) (Commission notification of reason to believe finding), 111.17(a) and (b) (Commission notification of probable cause finding), 111.18(d) (respondent notification of desire to negotiate conciliation), 111.37(a) and (b) (Commission notification of administrative fine determination), 111.40(a) (same), 116.8(b) (creditor notification of intent to forgive debt), 9003.1(a)(1) (candidate agreement to comply with public funding conditions), 9032.2(d) (candidate disavowal), 9033.1(b)(8) (submission of information changes by publicly funded candidates), and 9033.5(a)(2) (publicly funded candidate notice of inactivity). Similarly, the Commission proposes to revise 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 proposes to revise Sec. 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 proposes to similarly replace each reference to ``letter'' or ``mailing'' in the following provisions: 11 CFR 110.6(c)(1)(ii) (conduit reporting), 111.6(a) (response to complaint in enforcement action), 111.23(a) and (b) (respondent notification of legal representation), 114.8 (trade [[Page 76421]] association's solicitation), 116.8(b) (creditor notification of intent to forgive debt), 200.3(a)(2) (Commission solicitation of comments from Commissioner of Internal Revenue on rulemaking petition), 200.3(a)(3) (Commission notification to rulemaking petitioner), 200.4(b) (same), 201.3(b)(1) (candidate submissions under public funding rules), 201.3(b)(2)(i) (Commission notifications under public funding rules), 9003.1(a)(2) (candidate agreement to comply with public funding conditions), 9033.1(a)(1) (candidate agreement to comply with public funding conditions), and 9033.2(a)(1) (publicly funded candidate certification). The Commission is also proposing to revise some uses of ``letter'' in regulations to which the proposed definition of ``writing'' would not apply. See supra note 18. Specifically, the Commission proposes the following revisions to its public disclosure and Rehabilitation Act regulations: (1) Replace ``Letter requests'' with ``Requests'' in 11 CFR 5.4(a)(5) (describing types of public disclosure records); (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 forgoing change by replacing that section's reference to ``the letter'' required by Sec. 6.170(g) with ``the notification.'' Third, the Commission is proposing to replace 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 proposes 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) provides 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.\40\ See 11 CFR 110.11(c)(2). Thus, to avoid suggesting that the proposed new definition of ``written'' would alter the substantive application of Sec. 300.64, the Commission proposes to conform 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). --------------------------------------------------------------------------- \40\ Most issues concerning the disclaimer requirements for electronic communications, such as the treatment of electronic materials as ``printed,'' are outside the scope of this rulemaking. They may be addressed in a separate rulemaking. See Internet Communication Disclaimers, 76 FR 63567 (Oct. 13, 2011); see also infra note 106. To review and comment on documents on that subject, visit www.fec.gov/fosers, reference REG 2011-02. --------------------------------------------------------------------------- The Commission seeks comment on the conforming changes proposed above.\41\ Should the Commission make additional conforming amendments if it adopts the new definition? --------------------------------------------------------------------------- \41\ The Commission is not proposing to make conforming changes to the regulations regarding publicly funded nominating conventions, 11 CFR part 9008, because these regulations may be the subject of a separate rulemaking. See Press Release, FEC Issues Interim Reporting Guidance for National Party Committee Accounts, (Feb. 13, 2015), www.fec.gov/press/press2015/news_releases/20150213release.shtml; see also Consolidated and Further Continuing Appropriations Act, 2015, Public Law 113-235, 128 Stat. 2130, 2772 (2014) (amending FECA with respect to national party convention funding); Gabriella Miller Kids First Research Act, Public Law 113-94, 128 Stat. 1085 (2014) (amending Funding Acts with respect to national party convention funding). To review and comment on documents on that subject, visit http://www.fec.gov/fosers, reference REG 2014-10. --------------------------------------------------------------------------- The Commission also seeks comment on whether any existing regulatory references to ``written,'' ``in writing,'' or ``a writing'' should be excluded from the proposed new definition. For example, several Commission regulations use the term ``written instrument'' to mean a check, money order, or negotiable instrument. The Commission believes that ``written instrument'' is generally understood to be a term of art, such that it would not be affected by a new definition of ``written,'' but should the new definition of ``written'' nonetheless expressly exclude the term ``written instrument''? \42\ Are there other uses of ``written'' in the Commission's regulations that should be excluded or defined separately from the proposed new general definition? --------------------------------------------------------------------------- \42\ 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''-- Proposed 11 CFR 100.36 FECA and the Funding Acts require certain documents to be signed,\43\ sworn, notarized, submitted under oath, or certified under penalty of perjury.\44\ 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,\45\ although the Commission has interpreted at least one of the regulations that does not so provide to nonetheless allow certain electronic signatures.\46\ Similarly, only some of the Commission regulations requiring certification under penalty of perjury provide for electronic certifications.\47\ --------------------------------------------------------------------------- \43\ See 52 U.S.C. 30109(a)(1) (enforcement complaints), 30109(a)(4)(B)(ii) (conciliation agreements); see also 52 U.S.C. 30104(a)(1) (reports), 30104(a)(11)(C) (requiring Commission to provide method other than signature for verification of electronically filed reports), 30104(d)(3) (same). \44\ See 52 U.S.C. 30104(b)(6)(B)(iii) (independent expenditure reports), 30104(c)(2)(B) (same), 30104(f)(2) (electioneering communication reports), 30107(a)(1) (reports and answers), 30109(a)(1) (enforcement complaints), 26 U.S.C. 9003(b)-(c) (payment eligibility), 9004(d) (personal fund expenditures); see also 52 U.S.C. 30104(a)(11)(C) (requiring Commission to provide method for perjury certifications for electronically filed reports), 30104(d)(3) (same). \45\ 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). \46\ 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''). \47\ 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) (aircraft operator certificated by Federal Aviation Administration or foreign authority), 100.93(g)(3) (certification from aircraft service provider), 102.2(a)(3) (certification by committee of multicandidate committee criteria), 104.3(b)(3)(vii)(B) (committee's certification, under penalty of perjury, in independent expenditure report), 104.3(d)(1)(v) (certification from lending institution concerning loans to political committee), 300.11(d) (signed written certification by 501(c) organization), 300.37(d) (same). --------------------------------------------------------------------------- To clarify that the regulatory signature requirements may generally be met electronically, the Commission is proposing to add a general definition of ``signature'' at 11 CFR 100.36. The proposed definition contains three paragraphs. Proposed 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.'' \48\ [[Page 76422]] 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 proposed 11 CFR 100.34 and 100.35, discussed above. Unlike at least one source definition,\49\ the definition of ``signature'' proposed 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 proposes an objective definition with which compliance can be initially determined on the face of the signed writing or record. The Commission seeks comment on this proposed definition of ``signature.'' --------------------------------------------------------------------------- \48\ See Signature, Black's Law Dictionary (10th ed. 2014) (defining ``signature'' as 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, Oxford English Dictionary Online, www.oed.com (subscription required) (``A person's name written (esp. in a distinctive way) so as to authenticate a document, authorize a transaction, or identify oneself as the writer or sender of a letter. Also: a distinctive mark or cross serving this purpose.'') (last visited Oct. 4, 2016); 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''). \49\ See Signature, Black's Law Dictionary (10th ed. 2014). --------------------------------------------------------------------------- Proposed Sec. 100.36(a) also provides that, unless otherwise specified, the definition of ``signature'' includes an ``electronic signature.'' Paragraph (b) of proposed 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,\50\ the E-Sign Act,\51\ UETA,\52\ and the Commission's interpretive rule concerning electronic redesignations of contributions.\53\ Proposed Sec. 100.36(b) follows all of 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 proposes to include ``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 proposed Sec. 100.36(a), proposed Sec. 100.36(b) incorporates the terms ``writing'' and ``record'' to be consistent with the new definitions in proposed 11 CFR 100.34 and 100.35. The Commission thus intends the proposed definition to be flexible enough to encompass forms that electronic signatures may take as new technologies emerge. --------------------------------------------------------------------------- \50\ 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 (10th ed. 2014). 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. \51\ 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''). \52\ 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''). \53\ See Electronic Contributor Redesignations, 76 FR 16233. --------------------------------------------------------------------------- The proposed definition intentionally differs from the source definitions in certain respects. For example, the proposed 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 propose to 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,\54\ but because the Commission utilizes other methods to ensure a heightened level of authenticity when required (such as notarization requirements, as discussed below), the Commission does not believe that the proposed definition of ``signature'' should differentiate between digital and electronic signatures. --------------------------------------------------------------------------- \54\ See Digital Signature, Black's Law Dictionary (10th ed. 2014) (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''). --------------------------------------------------------------------------- Proposed 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. Are these examples helpful? Should other examples be included in the regulation? As noted above, the proposed regulation would provide that electronic signatures are valid signatures ``unless otherwise specified.'' This language is intended to provide the Commission with flexibility to require more specific forms of electronic signatures, or even to prohibit electronic signatures, in certain circumstances. The Commission believes that 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. Are there Commission regulations for which the Commission should now require more specific forms of electronic signature in order to safeguard the integrity and authenticity of the signature? In light of the proposed new definition of ``signature,'' the Commission also proposes conforming changes to regulations that currently have more specific signature requirements. For example, 11 CFR 104.4(d)(2) and 109.10(e)(2)(ii) currently specify 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 proposes to revise 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 proposes to revise 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 to make other changes to that section as described further below. See infra Section (E)(3). Paragraph (c) of proposed 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 proposal 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.'' 15 U.S.C. 7001(g).\55\ The [[Page 76423]] Commission seeks comment on whether this proposal provides sufficient safeguards of integrity and authenticity for material that must be sworn or otherwise verified. Should the Commission require additional safeguards? For example, in a recent interpretive rule, the Commission noted that a political committee could check a contributor's electronic authorization against existing committee records to assure ``the contributor's identity and intent comparable to that of a written signature.'' \56\ Should all electronic oaths and certifications require some form of external verifiability (such as by reference to existing committee records as contemplated in the interpretive rule)? If so, how? --------------------------------------------------------------------------- \55\ See also UETA sec. 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''). \56\ See Electronic Contributor Redesignations, 76 FR at 16233. --------------------------------------------------------------------------- Finally, proposed 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.\57\ Is there any reason why the Commission should not accept documents notarized electronically pursuant to state law? --------------------------------------------------------------------------- \57\ The National Association of Secretaries of State issued a study in 2011 that examined electronic notarization as used in 16 states. See Nat'l Assoc. of Secs. of State, Issues and Trends in State Notary Regulation: NASS Report on State Notarization Policies and Practice 10-11 (2011); see also Electronic Notarization, Notary Pub. Adm'rs, www.npa-section.com/electronicnotarization.html (last updated July 2016) (showing 23 states authorizing electronic notarization); Lisa Prevost, The E-Notary Public Is Slow to Catch On, N.Y. Times, May 22, 2015, www.nytimes.com/2015/05/24/realestate/the-e-notary-public-is-slow-to-catch-on.html (discussing remote electronic notarization). --------------------------------------------------------------------------- 4. Revised Definition of ``File, Filed, or Filing''--Proposed 11 CFR 100.19(g) The Commission proposes to revise 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 proposes to make conforming amendments throughout 11 CFR chapter I. Section 100.19 currently defines ``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 or the Secretary of the Senate under 11 CFR parts 101, 102, 104, 105, 107, 108, and 109. As such, the current rule addresses 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 include the Commission's mailing address (999 E Street, NW., Washington, DC 20463).\58\ As such, the regulations suggest that the submissions must be made physically (such as by mail or hand-delivery), rather than electronically. --------------------------------------------------------------------------- \58\ See, e.g., 11 CFR 1.3(b) (Privacy Act requests), 111.4(a) (complaints), 111.15(a) (motions to quash or modify subpoena), 112.1(e) (advisory opinion requests), 112.3(d) (comments on advisory opinion requests). --------------------------------------------------------------------------- To provide the Commission with greater flexibility to accept documents electronically, the Commission proposes to add 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 with the Commission ``in person or by mail, including priority mail or express mail, or overnight delivery service, [at the Commission's street address], or by any alternative means, including electronic, that the Commission may prescribe.'' The Commission intends to use this proposed change to adopt such procedures for receiving electronic submissions--such as through online forms \59\ or email \60\--as the Commission determines to be appropriate for the various categories of affected documents. --------------------------------------------------------------------------- \59\ See, e.g., FEC, Searchable Electronic Rulemaking System-- Basic Search, sers.fec.gov/fosers (release date June 14, 2013) (web portal for commenting on rulemakings). \60\ See, e.g., FEC, Procedures Regarding Draft Advisory Opinions, www.fec.gov/law/draftaos.shtml (establishing email address for comments on draft advisory opinions) (last visited Oct. 5, 2016). --------------------------------------------------------------------------- The Commission also proposes to revise the introductory paragraph of 11 CFR 100.19 to explicitly note the scope of new paragraph (g). This proposed change is not intended to have any effect on the existing rules with respect to documents governed by paragraphs (a) through (f). Similarly, the Commission proposes to make conforming amendments by replacing the Commission's street address 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 Commission's street address from the definition of ``Commission.'' \61\ These regulations are 11 CFR 1.3(b) (Privacy Act requests), 1.4(a) (same), 2.2(a) (Sunshine Act), 4.5(a)(4)(i) (FOIA requests), 4.5(a)(4)(iv) (same), 4.7(b)(1) (same), 4.8(c) (FOIA appeals), 11 CFR 5.5(a) (Public Disclosure records requests), 5.5(c) (public disclosure requests via FOIA), 6.103(b) (Rehabilitation Act), 6.170(d)(3) (Rehabilitation Act complaints), 6.170(i) (Rehabilitation Act appeals), 7.2(a) (standards of conduct), 100.9 (definition of ``Commission''), 102.2(a)(1) (statements of organization), 111.4(a) (enforcement complaints), 111.15(a) (motions to quash or modify subpoena), 111.16(c) (probable cause briefs), 112.1(e) (advisory opinion requests), 112.3(d) (advisory opinion comments), 200.2(b)(5) (petitions for rulemaking), 9002.3 (definition of ``Commission''), and 9032.3 (same). --------------------------------------------------------------------------- \61\ Because the definitions in part 100 of the Commission's regulations generally do not apply to parts 1-8 of the regulations, the proposed references to ``filing'' in parts 1-8 would explicitly incorporate by reference new 11 CFR 100.19(g). --------------------------------------------------------------------------- For the same reasons, the Commission also proposes to amend other regulatory requirements relating to communications by mail:Sections 4.5(a)(4)(i) and 4.8(b) currently 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 would state that such information must be clearly indicated on the ``envelope or subject line, or in a similarly prominent location'' of the communication. Section 112.4(g) currently 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 would require only that the advisory opinion ``be provided'' by the Commission to the requestor, so as to encompass electronic transmission of the advisory opinion. Section 102.6(c)(2) currently provides that a solicitation of contributions to a separate segregated fund may be included ``in'' a bill for membership dues. Because such bills are now sometimes delivered electronically, rather than in paper form, the Commission proposes to change ``in'' to ``with.'' The substantive requirements for soliciting contributions to a separate segregated fund would not change.\62\ --------------------------------------------------------------------------- \62\ 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 proposed change to 11 CFR 102.6(c)(2), which would allow for solicitations by means other than mail, would not apply to these twice-yearly solicitations. --------------------------------------------------------------------------- In Sec. 114.1(g), which provides a non-exhaustive list of the manner in which [[Page 76424]] a solicitation may be made, the Commission proposes to add ``emails'' to the existing list of ``mailings, oral requests . . . , and hand distribution of pamphlets'' to recognize that solicitations may be made electronically.\63\ --------------------------------------------------------------------------- \63\ The Commission does not propose to add 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. --------------------------------------------------------------------------- In Sec. 116.9(a)(2), which describes what constitutes a political committee's reasonable diligence in attempting to locate a creditor, the Commission proposes to add email as a valid means of attempting to contact the creditor. Sections 9003.1(b)(7) and 9033.1(b)(8) currently require submission of the ``name and mailing address'' of the person entitled to receive public fund payments on behalf of a candidate. The Commission proposes 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 proposes several revisions to part 111 of its regulations. First, the Commission proposes to remove or limit requirements to file multiple copies of documents where multiple copies are no longer necessary. In 11 CFR 111.4(a), the Commission proposes to clarify 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 proposes to delete the provisions that state that a respondent ``should . . . if possible'' file multiple copies of a motion or brief. Second, the Commission proposes to revise the following regulations that currently refer to ``enclos[ing]'' a copy of a document: 11 CFR 111.5(a) (notification to respondent of complaint), 111.5(b) (same), and 111.16(b) (notification to respondent of probable cause recommendation). As revised, the regulations would provide that the Commission shall ``provide'' a copy of the relevant document. Third, the Commission proposes to revise 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 proposes to revise this last clause to read ``by any other method, including electronically, whereby actual notice is given.'' \64\ --------------------------------------------------------------------------- \64\ The Commission does not propose to make 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 proposes to add ``email address'' to the list of information about respondent's counsel that must be provided to the Commission. The Commission intends all of these proposed 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. Would these proposed revisions increase efficiency as intended? Would they create any additional burdens? What other regulations would be implicated by the proposed revision to the definition of ``file, filed, or filing'' at 11 CFR 100.19? Should the Commission consider revising additional regulations to provide explicitly for electronic communications or for ``filing'' pursuant to the proposed definition? D. Electronic Contributions The Commission is proposing to revise 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'') \65\ transfers the contribution to the recipient political committee; and (3) when the recipient political committee deposits the funds into its campaign depository. The Commission seeks comment on the proposed changes, especially in light 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 Commission is also seeking comment addressing the proposed rules in light of the methods by which vendors and payment processors verify a payor's identity, attribute payments, and collect, maintain, and transmit transaction records.\66\ The Commission is particularly interested in the perspectives of operators and users of established and emerging electronic payment platforms--such as PayPal, Venmo, BitPay, Square, and other electronic wallet, swipe P2P, mobile app, and social media payment platforms--as to the operation of these proposed rules on those platforms.\67\ The Commission also seeks comment on the proposed rules in light of how these practices and standards might change as new technologies emerge. --------------------------------------------------------------------------- \65\ 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. \66\ See, e.g., Online Person-to-Person (P2P), Account-to- Account Payments and Electronic Cash, Fed. Fin. Inst. Examination Council, 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 (last visited Oct. 6, 2016). \67\ See, e.g., Vindu Goel, Facebook Announces a Payments Feature for Its Messenger App, N.Y. Times, Mar. 17, 2015, www.nytimes.com/2015/03/18/technology/facebook-announces-a-payments-feature-for-its-messenger-app.html; Mike Isaac, As Apple Pay Arrives, Witnessing the Next Step in Money. Maybe., N.Y. Times, Oct. 20, 2014, www.nytimes.com/2014/10/21/technology/as-apple-pay-arrives-witnessing-the-next-step-in-money-maybe.html; Vindu Goel, Twitter Begins Testing a `Buy' Button for Instant Purchases by Its Users, N.Y. Times, Sept. 8, 2014, nytimes.com/2014/09/09/technology/twitter-begins-testing-buy-button-for-posts.html; Heather Kelly, Twitter and Amex to Let You Pay with a Hashtag, CNN (Feb. 12, 2013, 4:15 p.m.), www.cnn.com/2013/02/11/tech/social-media/twitter-hashtag-purchases; see also www.chirpify.com (last visited Oct. 5, 2016); but see Brian X. Chen, Few Consumers Are Buying Premise of Mobile Wallets, N.Y. Times, Apr. 27, 2014, www.nytimes.com/2014/04/28/technology/few-consumers-are-buying-premise-of-mobile-wallets.html (describing growth of mobile payment platforms as well as obstacles to wide public use). --------------------------------------------------------------------------- 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.'' 11 CFR 110.1(b)(6); see also 11 CFR 110.2(b)(6). The regulations further specify that a contribution that is mailed is considered to be made on the date of the postmark. Id. 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. 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). Generally, the Commission has concluded that a credit card [[Page 76425]] 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.' '' 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 proposes to revise 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 would 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.'' Does this description provide sufficient guidance? Should the regulations 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? Are such examples necessary to distinguish between electronic and non-electronic transactions? Would examples tied to specific technologies be limiting or risk becoming rapidly obsolete? The Commission is not proposing to specify how the new regulation would apply to electronic payments made long after they are authorized, such as those pursuant to recurring monthly payment authorizations.\68\ Should the revised regulation address this scenario? --------------------------------------------------------------------------- \68\ 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 regulations provide that the ``date of receipt'' of a contribution is the date a person ``obtains possession of the contribution.'' 11 CFR 102.8(a); see also 11 CFR 102.8(b)(2) (same description of ``receipt'').\69\ --------------------------------------------------------------------------- \69\ See also 11 CFR 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). --------------------------------------------------------------------------- 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.'' Advisory Opinion 1990-04 (American Veterinary Medical Association PAC) at 2-3.\70\ 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 proposes to revise 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.'' Does this proposed language provide sufficient guidance? Should it include specific examples to show when a contribution is received in different types of electronic transactions, such as when a debit card is physically presented, a credit card number is entered in an online form or given over the telephone, or a text message is sent? --------------------------------------------------------------------------- \70\ 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 23, 74 (2014), www.fec.gov/pdf/candgui.pdf. --------------------------------------------------------------------------- 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 recent 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 \71\ or via web-based platforms.\72\ The Commission proposes to revise 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. --------------------------------------------------------------------------- \71\ 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''). \72\ See, e.g., 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. Proposed 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. 52 U.S.C. 30102(b)(2). Under the proposed revisions to the definition of ``receipt,'' discussed above, this forwarding requirement would be 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. Because this scenario occurs frequently in modern electronic transactions,\73\ the Commission proposes to add 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 proposed [[Page 76426]] 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. See, e.g., 11 CFR 116.3; Advisory Opinion 2012-26 (m-Qube II); Advisory Opinion 2012-31 (AT&T). --------------------------------------------------------------------------- \73\ 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 Visa, https://usa.visa.com/run-your-business/accept-visa-payments.html (follow ``Learn how Visa transactions work'' hyperlink and click play arrow) (last visited Oct. 5, 2016); What We Do, Mastercard, www.mastercard.com/us/company/en/whatwedo/processing_behind_transaction.html (last visited Oct. 6, 2016). 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). --------------------------------------------------------------------------- The proposal would thus reflect how modern transactions are conducted and ensures that FECA's forwarding requirement is satisfied when contributors and political committees make and receive contributions electronically.\74\ See 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). --------------------------------------------------------------------------- \74\ In Advisory Opinion 2012-17 (m-Qube I), the Commission approved a proposal to process contributions made by text message, even though the processor would provide funds to the recipient political committees before the contributors had paid their mobile phone bills. Id. at 10. The Commission explained that the transmitted funds were extensions of credit in the ordinary course of business, ``not contributions that [the processor] received and forwarded.'' Id. at 7, 10. And because the forwarding requirements of 52 U.S.C. 30102(b) and 11 CFR 102.8 are triggered only upon the receipt of a contribution--not when a vendor extends credit--the payments ``do not implicate the forwarding requirements.'' Id. at 10. The Commission's rationale in that advisory opinion applied the existing regulations, which the Commission here proposes to revise. --------------------------------------------------------------------------- Should the Commission adopt this approach? Is it consistent with how electronic transactions are conducted? The Commission is not proposing regulatory language to define ``ordinary course of business'' but expects that the term would 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. Should the Commission revise the proposed rule to reflect this expectation? b. Proposed Revisions to Earmarking Rule, 11 CFR 110.6 FECA provides that, for purposes of the 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.'' \75\ 52 U.S.C. 30116(a)(8). 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.'' 11 CFR 110.6(b)(1). --------------------------------------------------------------------------- \75\ 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). --------------------------------------------------------------------------- Whether a person is a ``conduit or intermediary'' turns on whether the person ``receives and forwards an earmarked contribution to a candidate.'' 11 CFR 110.6(b)(2). Persons prohibited from making contributions and expenditures, however, are also prohibited from being conduits or intermediaries. 11 CFR 110.6(b)(2)(ii). Thus, because FECA prohibits corporations from making contributions to candidate committees, see 52 U.S.C. 30118, a corporation generally may not receive and forward earmarked contributions. The Commission's regulations provide for certain exceptions to this rule, see 11 CFR 110.6(b)(2)(i), but these exceptions do not squarely apply to the kinds of payment processors that the Commission has addressed in its recent advisory opinions regarding electronic contributions. 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.\76\ In other opinions, the Commission approved the transactions under the rationale that the corporations were providing services to the contributors.\77\ And in Advisory Opinion 2012-22 (skimmerhat), the Commission determined expressly that a for-profit corporation that processed customers' contributions to candidates via the corporation's Web site was not a conduit. Id. at 5-6. 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.' '' Id. at 10 (citing Advisory Opinion 2011-06 (Democracy Engine)); see also Advisory Opinion 2014-07 (Crowdpac) (approving commercial processor's transmission of contributions to candidates); ActBlue, Comment at 5, sers.fec.gov/fosers/showpdf.htm?docid=297360 (stating that without electronic payment processors, ``committees would not be able to raise campaign funds on the Internet or by credit card at all''). --------------------------------------------------------------------------- \76\ See Advisory Opinion 2007-04 (Atlatl); Advisory Opinion 2004-19 (DollarVote.org); see also Advisory Opinion 2012-09 (Points for Politics). \77\ See Advisory Opinion 2011-19 (GivingSphere); Advisory Opinion 2011-06 (Democracy Engine); Advisory Opinion 2006-08 (Brooks). --------------------------------------------------------------------------- The Commission now proposes to revise Sec. 110.6 to clarify the regulatory status of electronic payment processors and bring the rule into line with the role of ``certain electronic transactional services [that] are so essential to the flow of modern commerce.'' Advisory Opinion 2012-22 (skimmerhat) at 10. The Commission proposes to do so by exempting commercial payment processors from the definition of ``conduit or intermediary'' in a proposed new paragraph (F) of 11 CFR 110.6(b)(2)(i). The Commission is proposing two alternative versions of new paragraph (F). Alternative A of proposed paragraph 110.6(b)(2)(i)(F) would provide that a commercial payment processor is 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 without exercising direction or control over the choice of the recipient candidate or authorized committee. Alternative B of proposed Sec. 110.6(b)(2)(i)(F) would differ only in that Alternative B would not expressly state that a commercial payment processor operates without exercising direction or control over the choice of the recipient candidate or authorized committee. The Commission seeks comment on the alternatives. Specifically, does Alternative A accurately reflect and codify Commission determinations made in approving prior advisory opinions regarding commercial payment processors? See, e.g., Advisory Opinion 2014-07 (Crowdpac) at 4. Does Alternative B accurately reflect and codify Commission determinations that, for example, ``where a commercial vendor provides contribution processing [[Page 76427]] 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 through a conduit or intermediary? Advisory Opinion 2016-08 (eBundler.com) at 8. Would the reference to ``direction or control'' in Alternative A be clear in light of the use of that term at Sec. 110.6(d)? Would the omission of ``direction or control'' in Alternative B be clear in light of Commission determinations made in advisory opinions? The Commission anticipates that specific applications of the exemption, regardless of which Alternative is selected, will be informed by its prior advisory opinions and refined through future advisory opinions. The proposed term ``commercial payment processors'' would not 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 would encompass 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.\78\ 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 have had to pay,'' the fee would be considered a contribution. See, e.g., Advisory Opinion 2015-15 (WeSupportThat.com) at 5 (quoting Advisory Opinion 2014-07 (Crowdpac) and Advisory Opinion 2011-06 (Democracy Engine)). --------------------------------------------------------------------------- \78\ Because the proposed clarification also does not turn on the incorporation status of a payment processor, a limited liability company that opts to be treated like a partnership for tax purposes could process contributions to candidates in the ordinary course of business without being considered a conduit or intermediary. See Advisory Opinion 2012-09 (Points for Politics). --------------------------------------------------------------------------- The Commission intends the proposed revision to 11 CFR 110.6(b)(2)(i) 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. Does the proposal provide sufficient guidance and clarity to the regulated community as to which persons are not considered conduits and intermediaries? Should the Commission 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)? For example, should the Commission clarify that the definition of earmark does not generally include a contributor's authorization to initiate an electronic transaction? Additionally, is existing guidance sufficient with respect to how political committees should report contributions received via commercial payment processors? Furthermore, in addition to concluding that commercial payment processors are not conduits under 11 CFR 110.6, the Commission has also determined that where a commercial payment processor provides its services to its customers, as opposed to the political committees that receive the customers' contributions, the processor itself would not make contributions to the recipient political committees. See, e.g., Advisory Opinion 2015-15 (WeSupportThat.com) at 4 (``Identifying candidates whose activities are of interest to its users, and processing users' contributions to those candidates, are services that the requestor may permissibly provide to its users.''); Advisory Opinion 2014-07 (Crowdpac) at 6 (``Accordingly, Crowdpac's proposal to match users with candidates and utilize the . . . platform to process and forward users' contributions to candidates would not result in impermissible contributions by Crowdpac to federal candidate committees.''). The Commission seeks comment as to whether it should promulgate regulatory language that codifies these determinations, and if so, where in its regulations. 3. When a Political Committee Deposits the Contribution: Campaign Depositories, Merchant Accounts, Recordkeeping, and Internet-Based Alternative Mediums of Exchange Once a political committee has received a contribution, it must deposit that receipt in an account at a campaign depository within ten days. 52 U.S.C. 30102(h)(1); 11 CFR 103.3(a). The campaign depository must be a state bank, federally chartered depository institution, or depository institution with accounts insured by certain federal agencies. 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 proposing to revise several regulations to address issues related to the deposit into campaign depositories of contributions made electronically. First, the Commission proposes to revise 11 CFR 103.3(a) to clarify the campaign depository requirements with respect to joint merchant accounts. Second, the Commission proposes to revise 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. Finally, the Commission is considering whether to revise 11 CFR 103.3(a) and 102.10 to address how the requirements for deposits to and disbursements from campaign depositories apply to contributions of internet-based alternative mediums of exchange, such as bitcoin. a. Proposed Changes Regarding 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 Web site on the contribution end and to a specific bank account on the processing end.'' ActBlue, Comment at 2, sers.fec.gov/fosers/showpdf.htm?docid=297360. 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.'' Id. at 4. Merchant accounts operated and controlled by a payment processor may contain contributions for several different political committees. See Advisory Opinion 1995-34 (Politechs) n.6 (describing processing of contributions for multiple committees through one merchant account). 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. 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 [[Page 76428]] 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 is now reconsidering its earlier requirement that political committees should 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. See ActBlue, Comment at 4, sers.fec.gov/fosers/showpdf.htm?docid=297360 (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''). The Commission proposes to amend 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 the merchant account of a person whose usual and normal business involves the electronic processing and transmission of payments are not ``receipts'' of the recipient political committee, but are, instead, contributions to be forwarded by the processor under 11 CFR 102.8.\79\ Together with the revisions to Sec. 102.8 discussed above, this proposed amendment would ensure that electronic payments passing through merchant accounts comply with the 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. --------------------------------------------------------------------------- \79\ For ease of reading, the Commission also proposes to divide Sec. 103.3(a) into two subparts to address the two distinct issues (receipts and disbursements) addressed therein. --------------------------------------------------------------------------- This proposed change is not intended to apply to merchant accounts over which a recipient political committee exercises control. Should the Commission make this limitation explicit, or does the reference to a payment processor's ``ordinary course of business'' suffice? Alternatively, should the Commission update its campaign-depository rules by revising 11 CFR 103.2, which defines the term ``campaign depository,'' instead of 11 CFR 103.3(a)? Under either approach, should the Commission expressly supersede 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 can be read as requiring political committees to treat joint merchant accounts as their own campaign depository accounts? b. Proposed Changes to 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. 52 U.S.C. 30102(b)(2); 11 CFR 102.8(a). 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. To address these challenges, the Commission proposes to revise 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) would be replaced with a new paragraph (4), which would require political committees to maintain a ``record'' of each contribution received. For checks or written instruments in excess of $50, the revised rule would still require treasurers to maintain an image of the instrument. For all contributions, the revised rule would add 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 would also remove the requirement that committees provide the Commission with the electronic means to read such records because that requirement would appear in the proposed new definition of ``record'' discussed above. The Commission proposes 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 proposes to add, 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.'' The Commission invites comment on whether the proposed rule provides sufficient guidance to enable information about specific contributions and contributors to be matched to political committees' aggregated receipt and deposit of contributions. If so, is the proposed rule flexible enough to accommodate evolving methods of electronic transfers? The Commission is also interested in comment addressing whether the specificity required of records of checks and written instruments is still necessary in light of the new definition of ``record,'' discussed above. c. Contributions of Internet-Based Alternative Mediums of Exchange--11 CFR 102.10 and 103.3 The Commission is considering whether to revise its rules regarding the receipt of contributions in the form of bitcoin and other internet- based alternative mediums of exchange that cannot currently be deposited in campaign depositories. In Advisory Opinion 2014-02 (Make Your Laws PAC), the Commission determined that a political committee could accept $100 worth of bitcoin contributions per contributor per election. Bitcoin is a privately issued alternative medium of exchange that exists ``only as a long string of numbers and letters in a user's computer file.'' \80\ Users receive transfers of bitcoin into their online bitcoin ``wallets'' (essentially, encrypted computer files) and can transfer bitcoin from those ``wallets'' to other users, to merchants to purchase goods or services, or to exchanges to convert into government-issued currency.\81\ At this [[Page 76429]] time, the Commission is aware of no institution that meets the statutory criteria of a campaign depository, see 52 U.S.C. 30102(h), and that maintains bitcoin wallet ``accounts'' for its customers. The Commission seeks comment as to whether the unique nature of bitcoin and other internet-based alternative mediums of exchange pose any potential challenges under FECA, such as achieving meaningful disclosure, which necessitates regulatory amendment. --------------------------------------------------------------------------- \80\ U.S. Gov't Accountability Office, GAO-13-516, Virtual Economies and Currencies 5 (2013), www.gao.gov/assets/660/654620.pdf. \81\ Id.; see also Francois R. Velde, Fed. Reserve Bank of Chi., No. 317, Bitcoin: A Primer 2 (2013), www.chicagofed.org/digital_assets/publications/chicago_fed_letter/2013/cfldecember2013_317.pdf (describing bitcoin wallet). --------------------------------------------------------------------------- Current Commission regulations establish procedures for political committees to receive and report in-kind contributions of ``stocks, bonds, art objects, and other similar items to be liquidated.'' 11 CFR 104.13(b). Under this provision, political committees may accept such items as in-kind contributions and hold them as investments outside of their campaign depositories until later sale, without being subject to the 10-day deposit requirement. See Advisory Opinion 2000-30 (pac.com) at 8 (citing Advisory Opinion 1989-06 (Friends of Sherwood Boehlert) and Advisory Opinion 1980-125 (Cogswell for Senate Committee 1980)). The Commission is interested in comment on whether the inability to deposit bitcoin and other alternative mediums of exchange in a campaign depository necessitates treating contributions of such alternative mediums of exchange as in-kind contributions rather than contributions of money. Should the Commission revise 11 CFR 103.3 to clarify that all receipts by a political committee must be deposited in campaign depositories, except for in-kind contributions that cannot be deposited? The Commission seeks comment on how best to reconcile an interpretation allowing in-kind contributions to not be deposited in a campaign depository with FECA's requirement that ``all receipts . . . shall be deposited'' in an account at a campaign depository. See 52 U.S.C. 30102(h)(1). Related to the question of whether in-kind receipts must be deposited in a campaign depository is the question of how to interpret the statutory requirement that all disbursements be made from a campaign depository. The Commission has reached differing conclusions in advisory opinions on whether in-kind contributions received and held outside of a campaign depository may be disbursed from outside of that depository or whether they must first be liquidated and deposited in a campaign depository prior to disbursement.\82\ Should the Commission revise 11 CFR 102.10 to specify that a disbursement need not be made from a campaign depository if the asset being disbursed was not required to be deposited into a campaign depository? The Commission seeks comment on how best to reconcile an interpretation allowing the disbursement of assets held outside campaign depositories with the statutory requirement that ``[n]o disbursements may be made . . . except by check drawn'' on an account at a campaign depository. See 52 U.S.C. 30102(h)(1). --------------------------------------------------------------------------- \82\ Compare Advisory Opinion 1982-08 (Barter PAC) (allowing disbursement of ``credit units'' in that form), with Advisory Opinion 2000-30 (pac.com) (requiring liquidation and deposit prior to disbursement). --------------------------------------------------------------------------- E. Other Considerations in Electronic Contributions and Disbursements The Commission is considering revisions to 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.\83\ 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.\84\ --------------------------------------------------------------------------- \83\ 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''). \84\ 11 CFR 100.52(c); see also 11 CFR 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. 120 Cong. Rec. H7832 (daily ed. Aug. 7, 1974) (statement of Rep. Boland). Thus, Congress limited contributions of currency to $100. 52 U.S.C. 30123.\85\ Commission regulations also prohibit the use in federal elections of any portion of an anonymous ``cash'' contribution that exceeds $50.\86\ --------------------------------------------------------------------------- \85\ 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). \86\ 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). --------------------------------------------------------------------------- Some non-cash electronic payment methods--particularly prepaid cards and internet-based alternative mediums of exchange--have characteristics very similar to cash. Like currency, prepaid cards and some internet-based alternative mediums of exchange are easily transferable and relatively untraceable. They are not associated with a depository institution and thus are not subject to those institutions' ``know-your-customer'' obligations under federal law.\87\ All that a person needs to acquire and use prepaid cards in amounts within FECA's contribution limits is sufficient cash to purchase the cards. Similarly, ``all that is needed to complete a [bitcoin] transaction is a bitcoin address, which does not contain any personal identifying information.'' \88\ --------------------------------------------------------------------------- \87\ See, e.g., 31 CFR 1020.220(a) (setting forth customer identification programs for banks, credit unions, and other depository institutions, including through records of customer names and addresses). \88\ U.S. Gov't Accountability Office, GAO-13-516, Virtual Economies and Currencies 8 (2013), available at gao.gov/assets/660/654620.pdf. --------------------------------------------------------------------------- Because prepaid cards present the same concerns as those noted by Congress when it limited contributions of currency to $100, the Commission proposes 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. To accomplish this, the Commission proposes to add paragraph (c)(4) to 11 CFR 110.4 to clarify that a ``cash contribution'' includes a contribution (1) of currency of the United States or any foreign country, or (2) made using a prepaid card. The Commission also proposes to make a conforming change to 11 CFR 110.4(c)(1) by updating the current prohibition on making contributions aggregating more than $100 in ``currency of the United States, or of any foreign country'' to apply to any ``cash contribution,'' as provided in proposed 11 CFR 110.4(c)(4). The Commission intends the term ``prepaid card'' to mean a card, payment code, or device that is not linked to the contributor's checking, savings, or other depository account but is instead purchased or loaded on a prepaid basis and honored, upon presentation, by merchants for goods or services, or at automated teller machines, as provided in federal electronic transfer consumer rights protection laws. See 15 U.S.C. 1693l-1(a)(2)(A). The Commission seeks comment on whether it should define [[Page 76430]] the term ``prepaid card'' in the regulations themselves or whether it should otherwise update its rules for cash contributions to apply to prepaid cards. The Commission also seeks comment on any compliance challenges that might result from the proposed rule if adopted. In particular, one commenter noted in response to the ANPRM that a political committee that receives a contribution from a prepaid card ``is unlikely to know that . . . a prepaid card'' has been used to make the payment because ``a prepaid card is treated the same as any other payment card'' in the payment processing.\89\ The Commission understands, however, that prepaid card issuers are able to exclude certain categories of merchants from receiving payments made by prepaid cards.\90\ Could political committees, as a category of merchants,\91\ use this or another mechanism (such as partial authorization) to decline contributions made by prepaid cards either entirely or in excess of $100? Should the Commission create a safe harbor for committees that take certain steps to limit or exclude prepaid card contributions, whether by requiring contributor affirmations, by arranging with prepaid card issuers not to authorize prepaid card contributions to them exceeding $100, or by some other means? --------------------------------------------------------------------------- \89\ See ActBlue, Comment at 6, sers.fec.gov/fosers/showpdf.htm?docid=297360. \90\ See, e.g., Visa, Visa Core Rules and Visa Product and Service Rules 209 (2015), https://usa.visa.com/dam/VCOM/download/about-visa/15-April-2015-Visa-Rules-Public.pdf (indicating that selective authorization may be based on criteria including merchant category classification). \91\ See Visa, Visa Merchant Category Classification (MCC) Code Directory, www.dm.usda.gov/procurement/card/card_x/mcc.pdf (noting MCC code of 8651 for political organizations) (last visited Oct. 6, 2016). --------------------------------------------------------------------------- Although internet-based alternative mediums of exchange such as bitcoin are not currency of the United States or of any foreign country, as noted above, they have characteristics very similar to cash (e.g., easily transferrable and relatively untraceable). Other government entities and courts have grappled with whether internet- based alternative mediums of exchange such as bitcoin are ``money,'' and whether and how such alternative mediums of exchange should be subject to law in other contexts.\92\ Should the Commission revise its regulations to treat contributions of bitcoin and other internet-based alternative mediums of exchange as cash contributions or, as discussed above, as in-kind contributions? If the Commission should revise its regulations to address internet-based alternative mediums of exchange, should the Commission treat contributions of internet-based alternative mediums of exchange in the same manner as it proposes to treat cash cards? --------------------------------------------------------------------------- \92\ See, e.g., SEC v. Shavers, No. 4:13-CV-416, 2013 WL 4028182, at *2 (E.D. Tex. Aug. 6, 2013); Craig K. Elwell et al., Cong. Research Serv., R43339, Bitcoin: Questions, Answers, and Analysis of Legal Issues (2015), www.fas.org/sgp/crs/misc/R43339.pdf (providing overview of federal, state, and international legal issues); Fin. Crimes Enforcement Network, U.S. Dep't of the Treasury, FIN-2013-G001, Application of FinCEN's Regulations to Persons Administering, Exchanging, or Using Virtual Currencies (2013), www.fincen.gov/statutes_regs/guidance/pdf/FIN-2013-G001.pdf. --------------------------------------------------------------------------- 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.'' 52 U.S.C. 30102(h)(1). 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. 11 CFR 102.10; see also 11 CFR 103.3(a) (same). The Commission has further interpreted the term ``similar draft'' to include certain forms of electronic disbursement.\93\ Consistent with these prior interpretations and in light of the increasing use of electronic transactions in the campaign finance arena, the Commission proposes to revise 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; to revise 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 to revise 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'' and seeks comment on the proposed revisions. --------------------------------------------------------------------------- \93\ 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 proposed regulatory revisions for disbursements by electronic transfer, and because checks may now be processed electronically without the creation of a canceled check,\94\ the Commission proposes to revise the recordkeeping requirements for political committee disbursements. Section 102.9(b) describes the records that political committees must keep of their disbursements. The Commission proposes to revise 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 proposes to remove 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 would no longer be necessary in light of proposed changes to the recordkeeping provisions in other parts of Sec. 102.9. --------------------------------------------------------------------------- \94\ See Susan Johnston Taylor, How to Deposit Checks With Your Smartphone, U.S. News and World Report, Oct. 9, 2012, http://money.usnews.com/money/personal-finance/articles/2012/10/09/how-to-deposit-checks-with-your-smartphone. --------------------------------------------------------------------------- Sections 9003.5(b) and 9033.11(b) contain the disbursement documentation requirements for publicly financed candidates. The Commission proposes to revise 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. The Commission seeks comment on these proposed changes. c. Electronic Funds Transfers Related to Separate Segregated Fund Administration The Commission intends to make similar revisions to two regulations relating to contributions by ``check'' to a separate segregated fund (``SSF''). First, the Commission proposes 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 [[Page 76431]] corporate drawing account of the individual contributor.'' 11 CFR 102.6(c)(3). 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 proposes to revise 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.\95\ As proposed, the rule would retain 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.'' --------------------------------------------------------------------------- \95\ See 11 CFR 102.6(c)(3) (describing combined payments under payroll deduction plan). --------------------------------------------------------------------------- Second, the Commission proposes to revise 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 proposed revisions concerning disbursements from campaign depositories, the Commission proposes to revise 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 seeks comment on whether it should 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 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. Do such transactions occur? If so, then how should the Commission amend 11 CFR 110.6(c)(1)(v) to address reporting requirements for them? 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.'' 26 U.S.C. 9034(a). The Commission proposes to revise 11 CFR 9034.2, which currently 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.\96\ 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 to also contain the contributor's ``signature,'' which is defined for these purposes to be ``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.'' --------------------------------------------------------------------------- \96\ 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.\97\ Payment industry standards limit the storage and retention of payment card information in order to safeguard consumers and the payment system from fraud. Visa, Comment at 2, sers.fec.gov/fosers/showpdf.htm?docid=297361. 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.\98\ --------------------------------------------------------------------------- \97\ See ActBlue, Comment at 2, sers.fec.gov/fosers/showpdf.htm?docid=297360; Perkins Coie, Comment at 2, sers.fec.gov/fosers/showpdf.htm?docid=297359; Visa, Comment at 1-3, sers.fec.gov/fosers/showpdf.htm?docid=297361. \98\ Id. at 2-3; see also Michael J. de la Merced, The Credit Card of Tomorrow: Software, Not Plastic, N.Y. Times, Apr. 1, 2014, http://dealbook.nytimes.com/2014/04/01/the-credit-card-of-tomorrow-software-not-plastic (discussing tokenization and credit card security measures). --------------------------------------------------------------------------- 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 proposes to revise 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 would 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. Would Sec. 9034.2, as revised, provide the necessary level of assurance that a credit or debit card contribution made over the internet is eligible for matching funds? Should the Commission also revise 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).\99\ Could an electronic record of a credit or debit card contribution authorized orally--such as an audio recording of the authorization--constitute a ``written instrument'' under the Funding Acts, 26 U.S.C. 9034(a)? Cf. 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)). If so, should the Commission revise 11 CFR 9034.2 to permit public fund matching of these credit and debit card contributions? --------------------------------------------------------------------------- \99\ See Matching Credit Card and Debit Card Contributions in Presidential Campaigns, 64 FR 32394, 32395-96 (June 17, 1999). --------------------------------------------------------------------------- Finally, the Commission proposes to revise 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 proposes [[Page 76432]] to add 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 proposing to add 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. The Commission seeks comment on the foregoing proposals to update its public financing regulations to account for electronic transactions. 4. Designation, Redesignation, and Attribution of Contributions The Commission is proposing to revise several provisions concerning the written designation of contributions for particular elections and the attribution of contributions to particular contributors. First, the Commission proposes to revise 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)) \100\ 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 which 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 proposes to remove 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). --------------------------------------------------------------------------- \100\ Section 9003.3(a) concerns contributions to a publicly funded presidential candidate's general election legal and accounting (``GELAC'') account. --------------------------------------------------------------------------- Similarly, the Commission proposes to revise 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 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 proposes to remove that reference to how a contribution is made from 11 CFR 110.1(k)(1). The proposed regulation would require 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 proposes to add to this section a provision governing the attribution of matchable contributions made by credit and debit cards. Specifically, proposed Sec. 9034.2(c)(8)(iii) would parallel the joint attribution principles that apply to contributions by check, see 11 CFR 9034.2(c)(1)(ii), 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.'' F. Updating Other Technologically Outmoded References The Commission is proposing to update its regulations to reflect technological advances and to remove certain references to outmoded technologies. These revisions are not intended to affect the substance of any of the revised regulations. 1. Telegrams, Telephones, Typewriters, Audio Tapes, and Facsimiles Under 11 CFR 104.6, membership organizations and corporations that spend more than $2,000 per election on express advocacy communications to their members or restricted class must file reports with the Commission that identify, among other things, the type of communication, ``such as direct mail, telephone or telegram.'' 11 CFR 104.6(c)(1). The Commission proposes to remove 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.\101\ --------------------------------------------------------------------------- \101\ See Shivam Vij, India to End State-Run Telegram Service. Stop., Christian Sci. Monitor, June 14, 2013, www.csmonitor.com/World/Asia-South-Central/2013/0614/India-to-send-world-s-last-telegram.-Stop (describing one person's ``spirited defense of the obsolete technology in the age of the smartphone''). --------------------------------------------------------------------------- For the same reason, the Commission also proposes to replace the reference to ``typewriters'' with ``computers'' in 11 CFR 114.9(d) (requiring reimbursement for use of labor organization or corporate facilities in connection with federal elections) and to remove the references to ``typewriters'' (without substituting a new term) in 11 CFR 9004.6(a) (identifying certain expenditures that are qualified campaign expenses) and 9034.6(a) (same). The Commission intends the word ``computer'' in these contexts to include not only PCs, but also tablets, smartphones, and similar devices. The Commission welcomes comment on whether alternative terms may more clearly encompass all of these computing devices. Similarly, the Commission proposes to add ``internet service'' to five non-exhaustive illustrative lists that currently include ``telephone service'': 11 CFR 106.2(b)(2)(iii)(D) (defining ``overhead expenditures'' to include utilities and ``telephone service base charges''); 11 CFR 9004.6(a) and (b) (describing publicly financed candidates' provision of ``facilities'' to the media, including ``telephone service''); and 11 CFR 9034.6(a) and (b) (same). Because most recording is now digital rather than on magnetic tape, the Commission proposes to replace all regulatory references to ``tapes,'' as in, for example, ``audio tapes,'' with references to ``recordings'': 11 CFR 200.6(a)(5) (including ``transcripts or audio tapes'' of Commission hearings in administrative record); 11 CFR 9007.7(b)(2) (same); 11 CFR 9038.7(b)(2) (same). The Commission proposes to revise 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, currently proposing to remove 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.'' 52 U.S.C. 30101(23). The Commission welcomes suggestions regarding whether any technological or conforming revisions are necessary in the definition of ``mass mailing'' in 11 CFR 100.27 or the separate definition of the same term at 11 CFR 106.2(b)(2)(ii). The regulations use a similar term, ``direct mail,'' in reference to a nominating convention delegate's activity. This term is defined at 11 CFR 110.14(f)(4) to include ``any mailing(s) made from lists that were not developed by the delegate.'' See also 11 CFR 110.14(i)(4) (parallel provision for delegate committees). Should the [[Page 76433]] definitions of ``direct mail'' be revised to explicitly account for electronic mailings or mailing lists? 2. Microfilm and Obsolete Computer References The Commission proposes to remove 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 Division. Specifically, the Commission proposes to make the following revisions, none of which is intended to be substantive: Remove the references to ``microform,'' ``computer tape or microfilm,'' ``computerized,'' and ``Computerized Magnetic Media Requirements'' in 11 CFR 4.1(j) (presenting non-exhaustive list of forms of FOIA copies), 4.9(c)(5) (FOIA fees), 9007.1(b)(1) (public finance audits), 9036.2(b)(1)(vi) (public fund submission procedures), and 9038.1(b)(1) (audit procedures); 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) (non-exhaustive list of forms of FOIA copies), 4.9(a)(3) (FOIA fees), 9003.1(b)(4) (public fund eligibility conditions), 9003.6(a) (same), 9033.1(b)(5) (same), 9033.12(a) (same), and 9036.1(b)(2) (same); replace references to a ``microfilmed copy'' and ``photocopy'' with ``copy'' in 11 CFR 105.5(a) and (b); 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; replace ``computers'' with ``computers or other electronic devices'' in 11 CFR 9004.6(a)(1) and 9034.6(a)(1); and 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 proposes to revise and simplify the fee structures at 11 CFR 4.9 and 5.6, which concern fees for FOIA and Public Disclosure. Specifically, the Commission proposes to remove 11 CFR 4.9(a)(2) (imposing $25 per hour computer access FOIA fee); revise 11 CFR 4.9(c)(4) and 5.6(a) to reduce the fee for document certification; remove 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;\102\ remove the specified staff charges from Sec. 4.9(c)(4) and add a provision to charge the ``direct costs,'' including staff and digital storage devices on which records are produced; remove from 11 CFR 5.6(a) the fees for professional ``research time/photocopying time''; remove 11 CFR 5.6(b), which establishes fees for providing Commission publications; and remove from 11 CFR 5.6(c) the reference to use of a contractor for microfilm and computer tape duplication. The Commission also proposes to make a conforming revision to 11 CFR 112.2(b) by including a reference to the Commission's Web site in conjunction with an existing reference to the Public Disclosure Division. The Commission welcomes comment on the proposed revisions. --------------------------------------------------------------------------- \102\ The Commission is not proposing to change 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). --------------------------------------------------------------------------- The Commission seeks 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 21 of the vertical blanking interval.'' 26 U.S.C. 9003(e). Commission regulations implement this requirement essentially verbatim at 11 CFR 9003.1(b)(10) and 9033.1(b)(12). Is there a ``successor technology'' that the Commission should now recognize in these provisions? Are there other technologies that might not apply to traditional broadcast television but are used for cable, satellite, or internet-based television (e.g., Hulu or Netflix)? Finally, the Commission seeks comment on other regulatory references to specific technologies: ``computer column codes [and] the extent of computer tabulations'' of polling data, 11 CFR 106.4(e)(1); software that is ``provided or approved by the Commission,'' see 11 CFR 102.5(a)(3)(ii), 106.7(b), 300.30(c)(3)(ii); and ``programming . . . computers'' to address envelopes or labels, 11 CFR 114.5(k)(2). Are these provisions outdated, such that they should be revised? 3. Web Sites The Commission is considering whether to revise certain regulatory references to ``Web sites'' 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 Web sites. First, the Commission proposes to update the definition of ``public communication'' in 11 CFR 100.26, which currently refers to communications placed for fee on another person's ``Web site.'' \103\ When the Commission defined ``public communication'' in 2006 to include paid internet advertisements on Web sites, 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.'' Internet Communications, 71 FR 18589, 18594 (Apr. 12, 2006); 52 U.S.C. 30101(22). The Commission focused on Web sites because that was the predominant means of paid internet advertising in 2006.\104\ The proposed revision would update Sec. 100.26 to refer to an ``internet-enabled device or application,'' thereby reflecting subsequent changes in internet technology \105\ and rendering [[Page 76434]] the regulatory text more adaptable to the development of as-yet unknown future technologies. --------------------------------------------------------------------------- \103\ 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. \104\ Even in the 2006 rulemaking, the Commission stated, albeit in a different context, that the ``terms `Web site' and `any Internet or electronic publication' are meant to encompass a wide range of existing and developing technology, such as Web sites, `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). \105\ See Amy Schatz, In Hot Pursuit of the Digital Voter, Wall St. J., Mar. 23, 2012, www.wsj.com/articles/SB10001424052702303812904577299820064048072 (showing screenshots of 2012 presidential committee advertisements on Hulu and noting another campaign's purchase of advertisements on Pandora internet radio); Tanzina Vega, The Next Political Battleground: Your Phone, CNN, May 29, 2015, www.cnn.com/2015/05/29/politics/2016-presidential-campaigns-mobile-technology (noting that ``voters should expect more political ads as they scroll through their phones next year--much as they'll be bombarded with ads on television,'' including ads using geolocation to ``target[] potential voters who may have downloaded the candidate's app''). Indeed, a recent study has shown that 19% of Americans access the internet exclusively or mostly through their smartphones as opposed to desktop or laptop computers. See Pew Research Ctr., U.S. Smartphone Use in 2015, at 3 (2015), www.pewinternet.org/files/2015/03/PI_Smartphones_0401151.pdf. --------------------------------------------------------------------------- The Commission seeks comment on this proposal. Is there any basis in law or fact to distinguish between paid Web site advertising and other paid internet advertising for purposes of the definition of ``public communication''? Is the term ``internet-enabled device or application'' sufficiently clear and technically accurate, or is there a better way to refer to the various media through which paid internet communications can be sent and received? Would providing examples of such paid media be helpful? Second, the Commission proposes to update the disclaimer provision in 11 CFR 110.11, which currently refers to political committees' ``Internet Web sites'' that are available to the general public. 11 CFR 110.11(a)(1).\106\ When the Commission revised the disclaimer requirements in 2002 to apply to political committees' Web sites, it noted ``the widespread use of this technology in modern campaigning, and the relatively nonintrusive nature of disclaimer requirements.'' Disclaimers, Fraudulent Solicitation, Civil Penalties, and Personal Use of Campaign Funds, 67 FR 76962, 76964 (Dec. 13, 2002). Disclaimers on political committee Web sites, the Commission stated, ``will assure, for example, that a Web site created and paid for by an individual will not have to include a disclaimer'' while the ``use of . . . Web sites to conduct campaign activity will have to provide the public notice of who is responsible.'' Id. As noted in the discussion of ``public communication'' above, the Commission used the term ``Web site'' 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 proposes to revise it to refer to political committees' ``Web sites and internet applications.'' The Commission welcomes comment on this proposal, including on whether there are terms other than ``Web sites'' and ``applications'' that may be better able to adapt to changing technological platforms of political committees. Is there a legal or factual basis for distinguishing between political committees' public Web sites and their public apps for purposes of FECA's disclaimer provisions? Do political committees have other devices or platforms for disseminating internet content comparable to Web sites and apps in modern campaigning? --------------------------------------------------------------------------- \106\ Issues concerning the substantive disclaimer requirements for electronic communications, such as modifications of or exemptions from disclaimer requirements for certain internet communications, are outside the scope of this rulemaking. They may be addressed in a separate rulemaking. See Internet Communication Disclaimers, 76 FR 63567; see also supra note 40. To review and comment on documents on that subject, visit http://www.fec.gov/fosers, reference REG 2011-02. --------------------------------------------------------------------------- Third, the Commission is proposing to update 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. 11 CFR 100.24. Currently, the definition of ``federal election activity'' excludes de minimis costs associated with posting certain general voting information on the ``Web site'' of a state, district, or local party committee or association of state or local candidates. 11 CFR 100.24(c)(7)(i) through (iii). 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. See Definition of Federal Election Activity, 75 FR 55257, 55265 (Sept. 10, 2010). 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.'' Id. The Commission proposes now to update 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 Web site--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. Is there any practical or legal reason to include one in the definition of ``federal election activity'' while excluding the other? Is the proposed revision sufficiently flexible for the de minimis exception to be applied to evolving technologies where appropriate without further textual revision? Finally, the Commission is proposing to revise references to ``World Wide Web site,'' ``Web site'' or ``Web site'' to read ``Web site'' in 11 CFR 4.4(g), 100.29(b)(6)(i) and (ii), 100.73, 100.94(b), 100.132, 102.2(a)(1)(vii), 104.22(b)(2)(i) and (ii), 110.1(c)(1)(iii), 110.2(e)(2), and 110.17(e)(1) and (2); ``Internet Web site'' to read ``Web site'' in 11 CFR 104.22(a)(6)(ii)(A)(2); ``World Wide Web address'' to read ``Web site address'' in 11 CFR 110.11(b)(3); and ``Web address'' and ``Web page'' to read ``Web site 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 is intended to effect a substantive change in the regulations. Would the proposed revisions modernize the regulatory language in a useful way? G. Other Electronic Modernization Issues In addition to inviting comment, including pertinent data, on the issues raised in this document, the Commission welcomes comment and data on any technological modernization issues that are not addressed in this document and that relate to the Commission's regulations implementing FECA, the Funding Acts, or other statutes that the Commission is charged with implementing. Certification of No Effect Pursuant to 5 U.S.C. 605(b) (Regulatory Flexibility Act) The Commission certifies that the attached proposed rules, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed 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 proposed rules would not impose new recordkeeping, reporting, or financial obligations on political committees or commercial vendors. The Commission therefore certifies that the proposed rules, if adopted, would not have a significant economic impact on a substantial number of small entities. [[Page 76435]] List of Subjects 11 CFR Part 1 Privacy. 11 CFR Part 2 Sunshine Act. 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 7 Administrative practice and procedure, Conflict of interests. 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 105 Campaign funds, Political candidates, 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 9002 Campaign funds. 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 proposes to amend 11 CFR chapter I as follows: PART 1--PRIVACY ACT 0 1. The authority citation for part 1 continues to read as follows: Authority: 5 U.S.C. 552a. Sec. 1.3 [Amended] 0 2. Amend paragraph (b) of Sec. 1.3 by removing ``request assistance by mail or in person from the Chief Privacy Officer, Federal Election Commission, 999 E Street NW., Washington, DC 20463 during the hours of 9 a.m. to 5:30 p.m.'' and adding in its place ``request assistance in person from the Chief Privacy Officer during the hours of 9 a.m. to 5:30 p.m. or file a request for assistance, addressed to the Chief Privacy Officer, pursuant to 11 CFR 100.19(g).'' Sec. 1.4 [Amended] 0 3. Amend paragraph (a) of Sec. 1.4 by removing ``made at the Federal Election Commission, 999 E Street NW., Washington, DC 20463 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 ``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 2--SUNSHINE REGULATIONS; MEETINGS 0 4. The authority citation for part 2 continues to read as follows: Authority: 5 U.S.C. 552b. Sec. 2.2 [Amended] 0 5. Amend Sec. 2.2(a) by removing ``, 999 E Street NW., Washington, DC 20463''. PART 4--PUBLIC RECORDS AND THE FREEDOM OF INFORMATION ACT 0 6. The authority citation for part 4 continues to read as follows: Authority: 5 U.S.C. 552, as amended. Sec. 4.1 [Amended] 0 7. Amend Sec. 4.1(j) as follows: 0 a. Remove ``microform,''; and 0 b. Remove ``machine readable documentation (e.g., magnetic tape or disk)'' and add in its place ``digital storage device''. Sec. 4.4 [Amended] 0 8. Amend Sec. 4.4(g) by removing ``World Wide Web site'' and adding in its place ``Web site''. Sec. 4.5 [Amended] 0 9. Amend Sec. 4.5 as follows: [[Page 76436]] 0 a. In paragraph (a)(4)(i), remove ``addressed to the Chief FOIA Officer, Federal Election Commission, 999 E Street NW., Washington, DC 20463, and shall indicate clearly on the envelope'' and add in its place ``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 ``addressed to the Chief FOIA Officer, Federal Election Commission, 999 E Street NW., Washington, DC 20463'' and add in its place ``addressed to the Chief FOIA Officer and filed pursuant to 11 CFR 100.19(g)''. Sec. 4.7 [Amended] 0 10. Amend paragraph (b)(1) of Sec. 4.7 by removing ``addressed to Chief FOIA Officer, Federal Election Commission, 999 E Street NW., Washington, DC 20463'' and adding in its place ``addressed to the Chief FOIA Officer and filed pursuant to 11 CFR 100.19(g)''. Sec. 4.8 [Amended] 0 11. Amend Sec. 4.8 as follows: 0 a. In paragraph (b), remove ``envelope or other cover and at the top of the first page'' and add in its place ``envelope or subject line, or in a similarly prominent location,''; and 0 b. In paragraph (c), remove ``delivered or addressed to the Chief FOIA Officer, Federal Election Commission, 999 E Street NW., Washington, DC 20463'' and add in its place ``addressed to the Chief FOIA Officer and filed pursuant to 11 CFR 100.19(g)''. 0 12. Amend Sec. 4.9 as follows: 0 a. Remove paragraph (a)(2); 0 b. Redesignate paragraphs (a)(3) and (4) as paragraphs (a)(2) and (3), respectively; 0 c. In newly redesignated paragraph (a)(2), remove ``computer disks'' and add in its place ``digital storage devices''; and 0 d. Revise 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 DIVISION DOCUMENTS 0 13. 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 14. Amend Sec. 5.4(a)(5) by removing ``Letter requests'' and adding in its place ``Requests''. Sec. 5.5 [Amended] 0 15. Amend Sec. 5.5 as follows: 0 a. In paragraph (a), remove ``mail'' and add in its place ``filing a request pursuant to 11 CFR 100.19(g)''; and 0 b. In paragraph (c), remove ``addressed to the Chief FOIA Officer, Federal Election Commission, 999 E Street NW., Washington, DC 20463'' and add in its place ``addressed to the Chief FOIA Officer and filed pursuant to 11 CFR 100.19(g)''. 0 16. 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 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 17. The authority citation for part 6 continues to read as follows: Authority: 29 U.S.C. 794. Sec. 6.103 [Amended] 0 18. Amend Sec. 6.103(b) by removing ``, 999 E Street NW., Washington, DC 20463''. Sec. 6.170 [Amended] 0 19. Amend Sec. 6.170 as follows: 0 a. In paragraph (d)(3), remove ``filed under this part shall be addressed to the Rehabilitation Act Officer, 999 E Street NW., Washington, DC 20463'' and add in its place ``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 ``in a letter containing'' and add in its place ``in writing. This notification will contain''; 0 c. In paragraph (h), remove ``letter'' and add in its place ``notification''; and 0 d. In paragraph (i), remove ``, Federal Election Commission, 999 E Street, NW., Washington, DC 20463'' and add in its place ``and filed pursuant to 11 CFR 100.19(g)''. PART 7--STANDARDS OF CONDUCT 0 20. The authority citation for part 7 continues to read as follows: Authority: 52 U.S.C. 30106, 30107, and 30111; 5 U.S.C. 7321 et seq. and app. 3. Sec. 7.2 [Amended] 0 21. Amend Sec. 7.2(a) by removing ``, 999 E Street NW., Washington, DC 20463''. PART 100--SCOPE AND DEFINITIONS (52 U.S.C. 30101) 0 22. The authority citation for part 100 continues to read as follows: [[Page 76437]] Authority: 52 U.S.C. 30101, 30104, 30111(a)(8), and 30114(c). Sec. 100.3 [Amended] 0 23. Amend Sec. 100.3(a)(3) by removing ``by letter'' and adding in its place ``in writing''. Sec. 100.9 [Amended] 0 24. Amend Sec. 100.9 by removing ``, 999 E Street NW., Washington, DC 20463''. 0 25. In Sec. 100.19, revise the introductory paragraph 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 or the Secretary of the Senate 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 or the Secretary of the Senate. * * * * * (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, 999 E Street NW., Washington, DC 20463, or by any alternative means, including electronic, that the Commission may prescribe. Sec. 100.24 [Amended] 0 26. Amend Sec. 100.24 as follows: 0 a. In paragraph (c)(7)(i), by removing ``Web site'' and ``web page'' and adding in their places, ``website or internet application'' wherever they appear; and 0 b. In paragraphs (c)(7)(ii) and (iii), by removing ``Web site'' and adding in its place ``website or internet application'' wherever it appears. Sec. 100.26 [Amended] 0 27. Amend Sec. 100.26 by removing ``Web site'' and adding in its place ``website or internet-enabled device or application''. Sec. 100.29 [Amended] 0 28. Amend Sec. 100.29 as follows: 0 a. In paragraphs (b)(6)(i) and (ii), remove ``Web site'' and add in its place ``website'' wherever it appears; and 0 b. In paragraph (b)(6)(ii)(A), remove ``written documentation'' and add in its place ``a writing''. 0 29. 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 30. 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 31. 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 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 32. Amend the introductory text of Sec. 100.73 by removing ``Web site'' and adding in its place ``website''. Sec. 100.82 [Amended] 0 33. Amend Sec. 100.82(e)(1)(i) and (e)(2)(ii) by removing ``documentation'' and adding in its place ``records'' wherever it appears. Sec. 100.93 [Amended] 0 34. Amend the introductory text of Sec. 100.93(j)(1), (2), and (3) by removing ``documentation'' and adding in its place ``a record'' wherever it appears. Sec. 100.94 [Amended] 0 35. Amend Sec. 100.94(b) by removing ``Web site'' and adding in its place ``website'' wherever it appears. Sec. 100.132 [Amended] 0 36. Amend the introductory text of Sec. 100.132 by removing ``Web site'' and adding in its place ``website''. Sec. 100.142 [Amended] 0 37. Amend Sec. 100.142(e)(1)(i) and (e)(2)(ii) by removing ``documentation'' and adding in its place ``records'' wherever it appears. PART 102--REGISTRATION, ORGANIZATION, AND RECORDKEEPING BY POLITICAL COMMITTEES (52 U.S.C. 30103) 0 38. 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. Sec. 102.2 [Amended] 0 39. Amend Sec. 102.2 as follows: 0 a. In the introductory text to paragraph (a)(1), remove ``, 999 E Street NW., Washington, DC 20463''; and 0 b. In paragraph (a)(1)(vii), remove ``web site'' and add in its place ``website''. 0 40. Amend Sec. 102.6 as follows: 0 a. In the introductory text of paragraph (c)(2), remove ``fund in a bill'' and add in its place ``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 [[Page 76438]] the union's separate segregated fund and union dues or other employee deductions. * * * * * 0 41. In Sec. 102.8, revise the last sentence of paragraph (a), revise 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 42. Amend Sec. 102.9 as follows: 0 a. Revise paragraph (a)(4); 0 b. In the introductory text of paragraph (b)(2) and paragraphs (b)(2)(i)(B) and (b)(2)(ii), remove ``cancelled check'' and add in its place ``canceled check or record of electronic transfer''; 0 c. In paragraph (b)(2)(i)(B), remove ``documentation'' and add in its place ``record''; 0 d. In paragraph (b)(2)(ii), remove ``documentation'' and add in its place ``a record''; 0 f. Remove paragraph (b)(2)(iii); and 0 g. Revise 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 43. Amend Sec. 102.10 by removing ``check or similar draft drawn on'' and adding in its place ``check or similar draft, including electronic transfer, from''. Sec. 102.11 [Amended] 0 44. 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 45. The authority citation for part 103 continues to read as follows: Authority: 52 U.S.C. 30102(h), 30111(a)(8). 0 46. 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 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 the merchant account of a person described in 11 CFR 102.8(d) in the ordinary course of that person's business are not receipts by the committee, but are, instead, contributions to be forwarded by that person 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 47. The authority citation for part 104 continues to read as follows: Authority: 52 U.S.C. 30101(1), 30101(8), 30101(9), 30102(i), 30104, 30111(a)(8) and (b), 30114, 30116, 36 U.S.C. 510. Sec. 104.4 [Amended] 0 48. Amend Sec. 104.4(d)(2) by removing ``typing the treasurer's name'' and adding in its place ``electronic signature''. Sec. 104.6 [Amended] 0 49. Amend Sec. 104.6(c)(1) by removing ``, telephone or telegram'' and adding in its place ``or telephone''. Sec. 104.10 [Amended] 0 50. Amend Sec. 104.10(a)(4) and (b)(5) by removing ``documents'' and adding in its place ``records''. Sec. 104.14 [Amended] 0 51. Amend Sec. 104.14 as follows: 0 a. In paragraph (b)(4)(iv), remove ``documentation'' and add in its place ``records''; and 0 b. In paragraph (b)(4)(v), remove ``Documentation for'' and add in its place ``Records of''. Sec. 104.17 [Amended] 0 52. Amend Sec. 104.17(a)(4) and (b)(4) by removing ``documents'' and adding in its place ``records'' wherever it appears. Sec. 104.22 [Amended] 0 53. Amend Sec. 104.22 as follows: 0 a. In paragraph (a)(6)(ii)(A)(2), remove ``Internet Web site'' and add in its place ``website''; 0 b. In paragraphs (b)(2)(i) and (ii), remove ``Web sites'' and add in its place ``websites'' wherever it appears; and 0 c. In paragraph (b)(2)(ii), remove ``Web site'' and add in its place ``website'' wherever it appears. PART 105--DOCUMENT FILING (52 U.S.C. 30102(G)) 0 54. The authority citation for part 105 continues to read as follows: Authority: 52 U.S.C. 30102(g), 30104, 30111(a)(8). Sec. 105.5 [Amended] 0 55. Amend Sec. 105.5 as follows: 0 a. Remove ``microfilm copies and photocopies'' from the section heading and add in its place ``copies''; [[Page 76439]] 0 b. In paragraph (a), remove ``Either a microfilmed copy or photocopy'' and add in its place ``A copy''; and 0 c. In paragraph (b), remove ``microfilm copy and a photocopy'' and add in its place ``copy''. PART 106--ALLOCATIONS OF CANDIDATE AND COMMITTEE ACTIVITIES 0 56. 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 57. Amend Sec. 106.2 as follows: 0 a. In paragraphs (a)(1), (b)(2)(ii), and (b)(2)(v), remove ``documentation'' and add in its place ``records''; and 0 b. In paragraph (b)(2)(iii)(D), remove ``supplies, and telephone'' and add in its place ``supplies, internet service, and telephone''. PART 108--FILING COPIES OF REPORTS AND STATEMENTS WITH STATE OFFICERS (52 U.S.C. 30113) 0 58. The authority citation for part 108 continues to read as follows: Authority: 52 U.S.C. 30104(a)(2), 30111(a)(8), 30113, 30143. Sec. 108.6 [Amended] 0 59. In Sec. 108.6(b), remove ``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 PUBLIC LAW 107-155 SEC. 214(C)) 0 60. 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), Public Law 107-155, 116 Stat. 81. Sec. 109.10 [Amended] 0 61. In Sec. 109.10(e)(2)(ii), remove ``typing the treasurer's name'' and add in its place ``electronic signature''. PART 110--CONTRIBUTION AND EXPENDITURE LIMITATIONS AND PROHIBITIONS 0 62. The authority citation for part 110 continues to read as follows: Authority: 52 U.S.C. 30101(8), 30101(9), 30102(c)(2), 30104(i)(3), 30111(a)(8), 30116, 30118, 30120, 30121, 30122, 30123, 30124, and 36 U.S.C. 510. 0 63. Amend Sec. 110.1 as follows: 0 a. In paragraph (b)(3)(i)(A), remove ``using a committee check or draft'' and add in its place ``using a committee check or similar draft, including electronic transfer''; 0 b. In paragraph (b)(4)(i), remove ``is made by check, money order, or other negotiable instrument which''; 0 c. In paragraph (b)(5)(ii)(B)(6), remove ``including electronic mail''; 0 d. In paragraph (b)(5)(ii)(C)(7), remove ``, including electronic mail''; 0 e. In paragraph (b)(6), add a fifth sentence after ``11 CFR 110.1(l)(4).''; 0 f. In paragraph (c)(1)(iii), remove ``Web site'' and add, in its place, ``website''; 0 g. In paragraph (k)(1), remove ``include the signature of each contributor on the check, money order, or other negotiable instrument or in a separate writing'' and add in its place ``be indicated by the signature of each contributor in writing''; 0 h. In paragraph (k)(3)(ii)(B)(3), remove ``including electronic mail''; 0 i. In paragraph (l)(1), remove ``copy'' and ``full-size photocopy of the check or written instrument'' and add in their places ``record'' and ``record that contains a complete image of that instrument'', respectively; 0 j. In paragraph (l)(4)(i), remove ``copy'' and add in its place ``record''; 0 k. In paragraph (l)(4)(ii), remove ``full-size photocopy of'' and add in its place ``record that contains a complete image of''; and 0 l. In paragraph (l)(6), remove ``documentation'' and add in its place ``a 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 64. Amend Sec. 110.2 as follows: 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 65. Amend Sec. 110.4 as follows: 0 a. In paragraph (c)(1), remove ``make contributions to a candidate or political committee of currency of the United States, or of any foreign country'' and add in its place ``make cash contributions to a candidate or political committee''; and 0 b. Add paragraph (c)(4). The addition reads as follows: Sec. 110.4 Contributions in the name of another; cash contributions (52 U.S.C. 30122, 30123, 30102(c)(2)). * * * * * (c) * * * (4) For purposes of this section, a cash contribution includes a contribution of currency of the United States or of any foreign country, and a contribution made by prepaid card. 0 66. Amend Sec. 110.6 as follows: 0 a. In paragraph (b)(2)(i)(D), remove ``and''; 0 b. In paragraph (b)(2)(i)(E), remove ``contributions.'' and add in its place ``contributions; and''; 0 c. Add paragraph (b)(2)(i)(F); 0 d. In paragraph (c)(1)(ii), remove ``by letter'' and add in its place ``the report shall be provided in writing''; 0 e. In paragraph (c)(1)(iv)(C), remove ``cash or by the contributor's check or by the conduit's check'' and add in its place ``cash, by the contributor's check, by the conduit's check, or by electronic transfer''; and 0 f. In paragraph (c)(1)(v), remove ``by letter'' and add in its place ``in writing''. The addition reads as follows: Alternative A Sec. 110.6 Earmarked contributions (52 U.S.C. 30116(a)(8)). * * * * * (b) * * * (2) * * * (i) * * * (F) A commercial payment processor, which is 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 without exercising direction or control over the choice of the recipient candidate or authorized committee. * * * * * Alternative B Sec. 110.6 Earmarked contributions (52 U.S.C. 30116(a)(8)). * * * * * (b) * * * (2) * * * (i) * * * (F) A commercial payment processor, which is any person whose usual and [[Page 76440]] normal business is to process payments and who processes payments to candidates and authorized committees in the ordinary course of business. * * * * * Sec. 110.11 [Amended] 0 67. Amend Sec. 110.11 as follows: 0 a. In paragraph (a)(1), remove ``Internet websites'' and add in its place ``websites and internet applications''; and 0 b. In paragraph (b)(3), remove ``World Wide Web address'' and add in its place ``website address''. Sec. 110.17 [Amended] 0 68. Amend Sec. 110.17(e)(1) and (2) by removing ``Web site'' and adding in its place ``website'' wherever it appears. PART 111--COMPLIANCE PROCEDURE (52 U.S.C. 30109, 30107(A)) 0 69. 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 70. Amend Sec. 111.4 as follows: 0 a. In paragraph (a), remove ``to the General Counsel, Federal Election Commission, 999 E Street NW., Washington, DC 20463'' and add in its place ``addressed to the General Counsel''; 0 b. In paragraph (a), remove ``three (3) copies'' and add in its place ``three (3) copies of any complaint not filed electronically''; and 0 c. In paragraph (d)(4), remove ``documentation supporting the facts alleged if such documentation is'' and add in its place ``records supporting the facts alleged if such records are''. Sec. 111.5 [Amended] 0 71. Amend Sec. 111.5 as follows: 0 a. In paragraph (a), remove ``enclose'' and add in its place ``provide''; and 0 b. In paragraph (b), remove ``enclosed'' and add in its place ``provided''. Sec. 111.6 [Amended] 0 72. Amend Sec. 111.6(a) by removing ``a letter or memorandum'' and adding in its place ``a written response''. Sec. 111.9 [Amended] 0 73. Amend Sec. 111.9(a) and (b) by removing ``by letter'' and adding in its place ``in writing'' wherever it appears. Sec. 111.12 [Amended] 0 74. Amend Sec. 111.12 as follows: 0 a. In paragraph (a), remove ``documentary or other tangible'' and add in its place ``records or other''; and 0 b. In paragraph (b), remove ``documents'' and add in its place ``records''. Sec. 111.13 [Amended] 0 75. Amend Sec. 111.13(c) and (d) by removing ``method whereby'' and adding in its place ``method, including electronically, whereby'' wherever it appears. Sec. 111.15 [Amended] 0 76. Amend Sec. 111.15 as follows: 0 a. In paragraph (a), remove ``, Federal Election Commission, 999 E Street NW., Washington, DC 20463. If possible, three (3) copies should be submitted''; and 0 b. In paragraph (c), remove ``documents'' and add in its place ``records''. 0 77. Amend Sec. 111.16 as follows: 0 a. In paragraph (b), remove ``enclose'' and add in its place ``provide''; 0 b. Revise paragraph (c). The revision reads as follows: 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 78. Amend Sec. 111.17(a) and (b) by removing ``by letter'' and adding in its place ``in writing'' wherever it appears. Sec. 111.18 [Amended] 0 79. Amend Sec. 111.18(d) by removing ``by letter'' and adding in its place ``in writing''. Sec. 111.23 [Amended] 0 80. Amend Sec. 111.23 as follows: 0 a. In the introductory text to paragraph (a), remove ``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 ``give the Commission a written notice of representation signed by the respondent, which shall include''; 0 b. In paragraph (a)(1), remove ``address'' and add in its place ``address, email address''; and 0 c. In paragraph (b), remove ``a letter of representation'' and add in its place ``this notice''. Sec. 111.35 [Amended] 0 81. Amend Sec. 111.35(e) by removing ``documentation'' and adding in its place ``records''. Sec. 111.36 [Amended] 0 82. Amend Sec. 111.36 as follows: 0 a. In paragraph (b), remove ``documentation'' and add in its place ``records'' wherever it appears; 0 b. In paragraphs (c) and (d), remove ``documents'' and add in its place ``records'' wherever it appears; and 0 c. In paragraph (d), remove ``document(s)'' and add in its place ``records''. 0 d. In paragraph (e), remove ``documents'' and add in its place ``records''. Sec. 111.37 [Amended] 0 83. Amend Sec. 111.37(a) and (b) by removing ``by letter'' and adding in its place ``in writing'' wherever it appears. Sec. 111.40 [Amended] 0 84. Amend Sec. 111.40(a) by removing ``by letter'' and adding in its place ``in writing''. PART 112--ADVISORY OPINIONS (52 U.S.C. 30108) 0 85. 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 86. Amend Sec. 112.1(e) by removing ``sent to the Federal Election Commission, Office of General Counsel, 999 E Street NW., Washington, DC 20463'' and adding in its place ``addressed to the Office of General Counsel and filed with the Commission''. Sec. 112.2 [Amended] 0 87. Amend Sec. 112.2(b) by removing ``and purchase at the Public Disclosure Division of the Commission'' and adding in its place ``at the Public Disclosure Division of the Commission and on the Commission's Web site''. Sec. 112.3 [Amended] 0 88. Amend Sec. 112.3(d) by removing ``sent to the Federal Election Commission, Office of General Counsel, 999 E Street NW., Washington, DC 20463'' and adding in its place ``filed with the Office of General Counsel''. Sec. 112.4 [Amended] 0 89. Amend Sec. 112.4(g) by removing ``sent by mail, or personally delivered'' and adding in its place ``be provided''. [[Page 76441]] PART 114--CORPORATE AND LABOR ORGANIZATION ACTIVITY 0 90. 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 91. Amend Sec. 114.1(g) by removing ``mailings, oral requests'' and adding in its place ``mailings, emails, oral requests''. Sec. 114.6 [Amended] 0 92. Amend Sec. 114.6(d)(2)(iii) by removing ``check drawn on that account'' and adding in its place ``check or similar draft, including electronic transfer''. Sec. 114.8 [Amended] 0 93. Amend Sec. 114.8 as follows: 0 a. In paragraphs (d)(2) and (3), remove ``copy'' and add in its place ``record''; and 0 b. In paragraph (d)(3), remove ``mailing'' and add in its place ``solicitation''. Sec. 114.9 [Amended] 0 94. Amend Sec. 114.9(d) by removing ``typewriters'' and adding in its place ``computers''. PART 116--DEBTS OWED BY CANDIDATES AND POLITICAL COMMITTEES 0 95. 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 96. Amend Sec. 116.8 as follows: 0 a. In the introductory text of paragraph (b), remove ``by letter'' and add in its place ``in writing''; and 0 b. In the introductory text of paragraph (b), remove ``The letter'' and add in its place ``The notification'' wherever it appears. Sec. 116.9 [Amended] 0 97. Amend Sec. 116.9(a)(2) by removing ``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 ``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 98. 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 99. Amend Sec. 200.2(b)(5) by removing ``addressed and submitted to the Federal Election Commission, Office of General Counsel, 999 E Street NW., Washington, DC 20463'' and adding in its place ``addressed to the Office of General Counsel and filed pursuant to 11 CFR 100.19(g)''. Sec. 200.3 [Amended] 0 100. Amend Sec. 200.3 as follows: 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 ``Pursuant to 52 U.S.C. 30111(f), seek the Internal Revenue Service's''; and 0 b. In paragraph (a)(3), remove ``Send a letter to'' and add in its place ``Notify''. Sec. 200.4 [Amended] 0 101. Amend Sec. 200.4(b) by removing ``sending a letter to'' and adding in its place ``notifying''. Sec. 200.6 [Amended] 0 102. Amend Sec. 200.6(a)(5) by removing ``audio tapes'' and adding in its place ``audio recordings''. PART 201--EX PARTE COMMUNICATIONS 0 103. 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] 0 104. Amend Sec. 201.3 as follows: 0 a. In paragraph (b)(1), remove ``the letter'' and add in its place ``the agreement'' wherever it appears; and 0 b. In paragraph (b)(2)(i), remove ``letter'' and add in its place ``notification''. PART 300--NON-FEDERAL FUNDS 0 105. 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] 0 106. Amend Sec. 300.2 as follows: 0 a. In paragraph (m)(1)(iii), remove ``Web address'' and add in its place ``Web site address''; and 0 b. In paragraph (m)(1)(iii), remove ``Web page'' and add in its place ``Web page''. Sec. 300.64 [Amended] 0 107. Amend Sec. 300.64 as follows: 0 a. In paragraphs (c)(3)(ii) and (iii), remove ``written'' and add in its place ``printed'' wherever it appears; 0 b. In paragraph (c)(3)(iii), remove ``non-written'' and add in its place ``non-printed''; and 0 c. In paragraph (c)(3)(v), remove all references to ``written''. PART 9002--DEFINITIONS 0 108. The authority citation for part 9002 continues to read as follows: Authority: 26 U.S.C. 9002 and 9009(b). Sec. 9002.3 [Amended] 0 109. Amend Sec. 9002.3 by removing ``, 999 E Street NW., Washington, DC 20463''. PART 9003--ELIGIBILITY FOR PAYMENTS 0 110. The authority citation for part 9003 continues to read as follows: Authority: 26 U.S.C. 9003 and 9009(b). Sec. 9003.1 [Amended] 0 111. Amend Sec. 9003.1 as follows: 0 a. In paragraph (a)(1), remove ``letter'' and add in its place ``writing''; 0 b. In paragraph (a)(2), remove ``letter'' and add in its place ``agreement'' wherever it appears; 0 c. In paragraphs (b)(2) and (3), remove ``documentation'' and add in its place ``record'' wherever it appears; 0 d. In paragraph (b)(4), remove ``computerized magnetic media, such as magnetic tapes or magnetic diskettes'' and add in its place ``digital storage devices''; 0 e. In paragraphs (b)(4) and (5), remove ``documentation'' and add in its place ``records'' wherever it appears; and 0 f. In paragraph (b)(7), remove ``name and mailing address'' and add in its place ``name, email address, and mailing address''. 0 112. 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 [[Page 76442]] 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] 0 113. Amend Sec. 9003.3(a)(1)(vi)(A) by removing ``is made by check, money order, or other negotiable instrument which''. 0 114. Amend Sec. 9003.5 as follows: 0 a. Revise the section heading; 0 b. Revise the paragraph heading of paragraph (b); 0 c. In paragraphs (b)(1) and (b)(2)(ii), remove ``canceled check negotiated by the payee'' and add in its place ``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), remove ``documents'' and add in its place ``records'' wherever it appears; 0 e. In paragraph (b)(1)(iii), remove ``documentation'' and add in its place ``record''; 0 f. In paragraphs (b)(1)(iv), (b)(4), and (c), remove ``documentation'' and add in its place ``records'' wherever it appears; and 0 g. In paragraph (b)(1)(iv), remove ``canceled check negotiated by the payee'' and add in its place ``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] 0 115. Amend Sec. 9003.6 as follows: 0 a. In paragraph (a), remove ``computerized magnetic media, such as magnetic tapes or magnetic diskettes'' and add in its place ``digital storage devices''; 0 b. Remove paragraph (b) and redesignate paragraph (c) as paragraph (b); and 0 c. In newly redesignated paragraph (b), remove ``documentation'' and add in its place ``records''. PART 9004--ENTITLEMENT OF ELIGIBLE CANDIDATES TO PAYMENTS; USE OF PAYMENTS 0 116. The authority citation for part 9004 continues to read as follows: Authority: 26 U.S.C. 9004 and 9009(b). Sec. 9004.6 [Amended] 0 117. Amend Sec. 9004.6 as follows: 0 a. In paragraph (a)(1), remove ``telephone service, typewriters, and computers'' and add in its place ``telephone and internet service, and computers or other electronic devices''; and 0 b. In paragraph (b)(3), remove ``telephone service'' and add in its place ``telephone and internet service''. Sec. 9004.7 [Amended] 0 118. Amend Sec. 9004.7(b)(5)(iv) and (v) by removing ``documentation'' and adding in its place ``records'' wherever it appears. Sec. 9004.9 [Amended] 0 119. Amend Sec. 9004.9(d)(1)(i) and (e) by removing ``documentation'' and adding in its place ``records'' wherever it appears. PART 9007--EXAMINATIONS AND AUDITS; REPAYMENTS 0 120. The authority citation for part 9007 continues to read as follows: Authority: 26 U.S.C. 9007 and 9009(b). Sec. 9007.1 [Amended] 0 121. Amend Sec. 9007.1 as follows: 0 a. In paragraph (b)(1), remove ``the Commission may request additional or updated computerized information'' and add in its place ``the Commission may request additional or updated information''; and 0 b. In paragraphs (b)(1)(iv) and (c)(2), remove ``documentation'' and add in its place ``records'' wherever it appears. Sec. 9007.7 [Amended] 0 122. Amend Sec. 9007.7 as follows: 0 a. In paragraph (a), remove ``documents'' and add in its place ``documents, records,'' wherever it appears; and 0 b. In paragraph (b)(2), remove ``tapes'' and add in its place ``recordings'' wherever it appears. PART 9032--DEFINITIONS 0 123. The authority citation for part 9032 continues to read as follows: Authority: 26 U.S.C. 9032 and 9039(b). Sec. 9032.2 [Amended] 0 124. Amend Sec. 9032.2(d) by removing ``by letter'' and adding in its place ``in writing''. Sec. 9032.3 [Amended] 0 125. Amend Sec. 9032.3 by removing ``, 999 E Street NW., Washington, DC 20463''. PART 9033--ELIGIBILITY FOR PAYMENTS 0 126. The authority citation for part 9033 continues to read as follows: Authority: 26 U.S.C. 9003(e), 9033 and 9039(b). 0 127. Amend Sec. 9033.1 as follows: 0 a. Revise paragraph (a)(1); 0 b. In paragraphs (b)(2) through (6), remove ``documentation'' and add in its place ``records'' wherever it appears; 0 c. In paragraph (b)(5), remove ``computerized magnetic media, such as magnetic tapes or magnetic diskettes'' and add in its place ``digital storage devices''; and 0 d. Revise 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] 0 128. Amend Sec. 9033.2 as follows: 0 a. In paragraph (a)(1), remove ``letter containing the required certifications'' and add in its place ``certifications''; and 0 b. In paragraph (c), remove ``documentation'' and add in its place ``records''. Sec. 9033.5 [Amended] 0 129. Amend paragraph (a)(2) of Sec. 9033.5 by removing ``by letter'' and adding in its place ``in writing''. 0 130. Amend Sec. 9033.11 as follows: 0 a. Revise the section heading; 0 b. Revise the paragraph heading of paragraph (b); 0 c. In the introductory text to paragraph (b)(1), add ``or a record of [[Page 76443]] electronic transfer'' after the words ``canceled check negotiated by the payee''.; 0 d. In paragraphs (b)(1)(ii)(A) and (B), remove ``documents'' and add in its place ``records'' wherever it appears; 0 e. In the introductory text to paragraph (b)(1)(iii) and paragraph (b)(1)(iv), remove ``documentation'' and add in its place ``record'' wherever it appears; 0 f. In paragraph (b)(1)(iv), remove ``the payee'' and add in its place ``the payee or the record of electronic transfer''; 0 g. In paragraph (b)(2)(ii), add ``or a record of electronic transfer'' after the words ``canceled check negotiated by the payee''; and 0 h. In paragraphs (b)(4) and (c), remove ``documentation'' and add in its place ``records'' wherever it appears. The revisions read as follows: Sec. 9033.11 Records of disbursements. * * * * * (b) Records required. * * * * * * * * Sec. 9033.12 [Amended] 0 131. Amend Sec. 9033.12 as follows: 0 a. In paragraph (a), remove ``computerized magnetic media, such as magnetic tapes or magnetic diskettes'' and add in its place ``digital storage devices''; 0 b. Remove paragraph (b) and redesignate paragraph (c) as paragraph (b); and 0 c. In newly redesignated paragraph (b), remove ``documentation'' and add in its place ``records''. PART 9034--ENTITLEMENTS 0 132. The authority citation for part 9034 continues to read as follows: Authority: 26 U.S.C. 9034 and 9039(b). 0 133. Amend Sec. 9034.2 as follows: 0 a. In paragraph (b), remove ``and the card number'' from the last sentence; 0 b. In the introductory text to paragraph (c), remove ``and card number'' from the last sentence; 0 c. In paragraph (c)(1)(i), remove ``written document'' and add in its place ``writing''; 0 d. In paragraph (c)(1)(iii), remove ``documentation'' and add in its place ``records''; and 0 e. Add paragraph (c)(8)(iii). The addition reads as follows: Sec. 9034.2 Matchable contributions. * * * * * (c) * * * (8) * * * (iii) 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. Sec. 9034.5 [Amended] 0 134. Amend Sec. 9034.5(c)(1) and (d) by removing ``documentation'' and adding in its place ``records'' wherever it appears. Sec. 9034.6 [Amended] 0 135. Amend Sec. 9034.6 as follows: 0 a. In paragraph (a)(1), remove ``telephone service, typewriters, and computers'' and add in its place ``telephone and internet service, and computers or other electronic devices''; and 0 b. In paragraph (b)(3), remove ``telephone service'' and add in its place ``telephone and internet service''. Sec. 9034.7 [Amended] 0 136. Amend Sec. 9034.7(b)(5)(iv) and (v) by removing ``documentation'' and adding in its place ``records'' wherever it appears. Sec. 9034.8 [Amended] 0 137. Amend Sec. 9034.8(b)(4) by removing ``recordkeeping, reporting and documentation'' and adding in its place ``recordkeeping and reporting''. PART 9035--EXPENDITURE LIMITATIONS 0 138. The authority citation for part 9035 continues to read as follows: Authority: 26 U.S.C. 9035 and 9039(b). Sec. 9035.1 [Amended] 0 139. Amend Sec. 9035.1(c)(3) by removing ``documentation'' and adding in its place ``records''. PART 9036--REVIEW OF MATCHING FUND SUBMISSIONS AND CERTIFICATION OF PAYMENTS BY COMMISSION 0 140. The authority citation for part 9036 continues to read as follows: Authority: 26 U.S.C. 9036 and 9039(b). Sec. 9036.1 [Amended] 0 141. Amend Sec. 9036.1 as follows: 0 a. In paragraph (b)(2), remove ``computerized magnetic media, such as magnetic tapes or magnetic diskettes'' and add in its place ``digital storage devices''; 0 b. In paragraphs (b)(3) and (4), remove ``documentation'' and add in its place ``records'' wherever it appears; 0 c. In paragraph (b)(4), add ``, or, for deposits made electronically, information associating contributions to their deposit in the designated campaign depository, such as a batch number'' after the words ``bank statements''; 0 d. In paragraph (b)(5), remove ``full-size photocopy of each unpaid check, and copies of'' and add in its place ``record that contains a complete image of each unpaid check and''; and 0 e. In paragraph (b)(6), remove ``full-size photocopy'' and add in its place ``record that contains a complete image''. 0 f. In paragraph (b)(7), remove ``documentation'' and add in its place ``records'' wherever it appears; Sec. 9036.2 [Amended] 0 142. Amend Sec. 9036.2 as follows: 0 a. In paragraph (b)(1)(ii), remove ``either solely in magnetic media from or in both printed and magnetic media forms'' and add in its place ``in printed or digital form or a combination of printed and digital forms''; 0 b. In paragraph (b)(1)(iii), remove ``checks returned unpaid'' and add in its place ``checks returned unpaid or credit or debit card or other electronic payment chargebacks''; 0 c. In paragraph (b)(1)(vi), remove ``as specified in the Computerized Magnetic Media Requirements'' from the second sentence; 0 d. In paragraph (b)(1)(vi), remove ``shall provide the computer equipment and software needed to retrieve and read the digital images, if necessary, at no cost to the Commission, and'' from the fourth sentence; and 0 e. In paragraphs (b)(1)(vi) and (vii), remove ``documentation'' and add in its place ``records'' wherever it appears. Sec. 9036.3 [Amended] 0 143. Amend the heading, introductory paragraph, and paragraphs (b), (b)(4), and (d) of Sec. 9036.3 by removing ``documentation'' and adding in its place, ``records'' wherever it appears. Sec. 9036.4 [Amended] 0 144. Amend Sec. 9036.4(b)(4) by removing ``documentation'' and adding in its place ``records''. Sec. 9036.5 [Amended] 0 145. Amend Sec. 9036.5(c)(1) by removing ``documentation'' and adding in its place ``records'' wherever it appears. PART 9038--EXAMINATIONS AND AUDITS 0 146. The authority citation for part 9038 continues to read as follows: Authority: 26 U.S.C. 9038 and 9039(b). Sec. 9038.1 [Amended] 0 147. Amend Sec. 9038.1 as follows: [[Page 76444]] 0 a. In the introductory text to paragraph (b)(1), remove ``the Commission may request additional or updated computerized information'' and add in its place ``the Commission may request additional or updated information''; and 0 b. In paragraphs (b)(1)(iv) and (c)(2), remove ``documentation'' and add in its place ``records'' wherever it appears. Sec. 9038.2 [Amended] 0 148. Amend Sec. 9038.2(b)(3) by removing ``documentation'' from the paragraph heading and adding in its place ``records''. Sec. 9038.7 [Amended] 0 149. Amend Sec. 9038.7 as follows: 0 a. In paragraph (a), remove ``documents'' and add in its place ``documents, records,'' wherever it appears; and 0 b. In paragraph (b)(2), remove ``tapes'' and add in its place ``recordings'' wherever it appears. PART 9039--REVIEW AND INVESTIGATION AUTHORITY 0 150. The authority citation for part 9039 continues to read as follows: Authority: 26 U.S.C. 9039. Sec. 9039.2 [Amended] 0 151. Amend Sec. 9039.2 as follows: 0 a. In paragraph (a)(3), remove ``documents'' and add in its place ``documents or records''; and 0 b. In paragraph (b), remove ``documentation'' and add in its place ``records''. Sec. 9039.3 [Amended] 0 152. Amend Sec. 9039.3(b)(2)(vi) by removing ``documents'' and adding in its place ``records''. On behalf of the Commission, Dated: October 11, 2016. Matthew S. Petersen, Chairman, Federal Election Commission. [FR Doc. 2016-25102 Filed 11-1-16; 8:45 am] BILLING CODE 6715-01-P
![76416 Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules
FEDERAL ELECTION COMMISSION number, or driver’s license number, or regulations by replacing technology-
any information that is restricted from specific references with broader criteria
11 CFR Parts 1, 2, 4, 5, 6, 7, 100, 102, disclosure, such as trade secrets or that are less likely to grow stale as
103, 104, 105, 106, 108, 109, 110, 111, commercial or financial information technology develops. One commenter
112, 114, 116, 200, 201, 300, 9002, 9003, that is privileged or confidential. suggested that the Commission could
9004, 9007, 9032, 9033, 9034, 9035, FOR FURTHER INFORMATION CONTACT: Mr. continue its current practice of using
9036, 9038, and 9039 Neven F. Stipanovic, Acting Assistant advisory opinions to address specific
[Notice 2016–12] General Counsel, or Ms. Jessica technologies. The commenters also
Selinkoff, Attorney, 999 E Street NW., provided comments regarding specific
Technological Modernization Washington, DC 20463, (202) 694–1650 regulations, as discussed in more detail
or (800) 424–9530. below.
AGENCY: Federal Election Commission. After reviewing these comments and
SUPPLEMENTARY INFORMATION: The
ACTION: Notice of proposed rulemaking. Federal Election Commission is engaging in additional deliberation, the
proposing to revise its regulations at 11 Commission is now proposing the
SUMMARY: The Federal Election changes described in this document.
Commission requests comment on CFR chapter I to address electronic
transactions, such as contributions The Commission seeks comment on
proposed changes to its regulations to these proposals.
address contributions and expenditures made using credit cards, by text
that are made by electronic means, such messages, or through internet-based B. The Growing Use of Electronic
as through internet-based payment payment processors. The Commission is Transactions, Records, and
processors or text messaging; to also proposing regulatory revisions to Communications
eliminate and update references to facilitate electronic accounting, Electronic financial transactions are
outdated technologies; and to address recordkeeping, reporting, and commonplace. According to the most
similar issues. The Commission has not redesignation by political committees. recent triennial study conducted by the
made any final decisions about the Additionally, as a retrospective Federal Reserve System, ‘‘payments
issues and proposals presented in this assessment of Commission regulations,1 have become increasingly card-based,’’
rulemaking. the proposed revisions would eliminate ‘‘fewer checks enter the banking system
or update references to outmoded as paper at all,’’ and the ‘‘number of
DATES: Comments must be received on technologies and would enable
or before December 2, 2016. The noncash payments in the United States
interested parties to communicate increased at a compound annual rate
Commission will determine at a later electronically with the Commission for
date whether to hold a public hearing . . . of 4.4 percent’’ from 2009 to 2012.4
certain purposes. Payments using prepaid cards increased
on this proposed rule. Anyone wishing
to testify at such a hearing must file A. Rulemaking History at the fastest rate (15.8%) among
timely written comments and must payment types between 2009 and 2012.5
On May 2, 2013, the Commission
include in the written comments a In 2009, electronic payments—whether
published in the Federal Register an
request to testify. If a hearing is to be made by card (such as debit, credit, or
Advance Notice of Proposed
held, the Commission will publish a prepaid) or through automated
Rulemaking (‘‘ANPRM’’).2 In the
document in the Federal Register clearinghouses—‘‘collectively
ANPRM, the Commission solicited
announcing the date and time of the exceed[ed] three-quarters of all noncash
comment on topics such as whether and
hearing. payments’’ in the United States.6 And
how it should revise its regulations to
electronic financial transactions are
ADDRESSES: All comments must be in reflect technological advances, whether
occurring not only through desktop
writing. Commenters are encouraged to industry standards in processing
computers or credit card networks, but
submit comments electronically via the electronic transactions would be
from consumers’ smartphones as well. A
Commission’s Web site at http:// relevant to any such revisions, and how
2015 study of smartphone use showed
www.fec.gov/fosers, reference REG political committees and other persons
that 64% of American adults own
2013–01, or by email to techmod@ engage in electronic transactions and
smartphones and that 57% of these
fec.gov. Alternatively, commenters may recordkeeping.
The Commission received three people had used their smartphones in
submit comments in paper form, the past year for online banking.7
addressed to the Federal Election substantive comments in response to the
Commission, Attn.: Neven F. ANPRM.3 Two commenters stated that 4 Fed. Reserve Sys., 2013 Federal Reserve
Stipanovic, Acting Assistant General the Commission should update its Payments Study: Recent and Long-Term Payment
Counsel, 999 E Street NW., Washington, Trends in the United States: 2003–2012, at 6–7
1 See generally, Jeffrey S. Lubbers, A Guide to (2013) (‘‘2013 Study’’), www.frbservices.org/files/
DC 20463. Each commenter must Federal Agency Rulemaking 355–361 (5th ed. 2012) communications/pdf/research/2013_payments_
provide, at a minimum, his or her first (summarizing ‘‘lookback’’ efforts designed to update study_summary.pdf. The 2013 Study notes that
name, last name, city, state, and zip or remove outdated or ineffective regulations); ‘‘the growth in the number of [credit, debit, and
code. All properly submitted comments, Adoption of Recommendations, 79 FR 75114, prepaid] card payments was driven by the
75114–17 (Dec. 17, 2014) (Administrative replacement of both cash and checks.’’ Id. at 10.
including attachments, will become part Conference of the United States framework for Moreover, even as more checks are being processed
of the public record, and the agencies’ retrospective reviews of their regulations); electronically, the total number of checks paid in
Commission will make comments Special Committee to Review the Government in 2012 was ‘‘less than half the number of checks that
were paid in 2003,’’ for a total of only 15% of all
sradovich on DSK3GMQ082PROD with PROPOSALS2
available for public viewing on the the Sunshine Act, 60 FR 43108, 43109–10 (Aug. 18,
1995) (recognizing agencies’ ‘‘need to review payments in 2012. Id. at 8, 12.
Commission’s Web site and in the regulations already adopted to ensure that they 5 Id. at 8.
Commission’s Public Records Office. remain current, effective and appropriate’’). 6 Fed. Reserve Sys., 2010 Federal Reserve
Accordingly, commenters should not 2 Technological Modernization, 78 FR 25635 Payments Study: Noncash Payment Trends in the
provide in their comments any (May 2, 2013). United States: 2006–2009, at 4 (2011),
information that they do not wish to 3 The Internal Revenue Service also submitted www.frbservices.org/files/communications/pdf/
comments indicating that it sees no conflict press/2010_payments_study.pdf (showing similar
make public, such as a home street between this rulemaking and the Internal Revenue trends from 2006–2009).
address, personal email address, date of Code or Treasury regulations. See 52 U.S.C. 7 Pew Research Ctr., U.S. Smartphone Use in
birth, phone number, social security 30111(f). 2015, at 2, 5 (2015), available at
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/1.svg)
![Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules 76417
Among 18–29 year old smartphone communication and e-commerce In recent years, the Commission has
owners, about 70% had used expand.’’ 12 The report noted that recognized this trend towards electronic
smartphones in the past year for online ‘‘many businesses and consumers have records and communication by
banking.8 moved to electronic payments over the establishing nonregulatory procedures
Consistent with general payment past decade in lieu of using the mail to for the public to electronically submit
trends, people are increasingly using pay bills,’’ with fewer than 50% of all Freedom of Information Act (‘‘FOIA’’)
cards and electronic methods to bills paid by paper mail in 2010.13 requests, comments on rulemakings,
contribute to political committees. A The public is moving from paper to and comments on draft advisory
series of studies by the Pew Research electronic methods in terms of obtaining opinions.17
Center of the internet and elections from The statutes that the Commission is
government information as well. A 2015
2006 to 2012 shows that online political charged with implementing—the
study showed that 40% of smartphone
contributions have become more Presidential Election Campaign Fund
owners had looked up government
common since 2008 (although most Act, 26 U.S.C. 9001–13, and the
services or information from their
contributions are still made in person, Presidential Primary Matching Payment
phones in the past year.14 At the same
over the phone, or by mail).9 Among Account Act, 26 U.S.C. 9031–42
time, the federal government has also
adults who donated to presidential (collectively, the ‘‘Funding Acts’’), and
been transitioning to electronic records
candidates in the 2012 election, 50% the Federal Election Campaign Act, 52
management. A 2011 Presidential
donated ‘‘online or via email.’’ 10 As of U.S.C. 30101–46 (‘‘FECA’’)—largely
Memorandum directed towards records
September 2012—only a few months predate this technological evolution, as
after the Commission had approved the management reform noted that
‘‘[d]ecades of technological advances do many of the Commission’s
use of text messaging to make regulations. For example, these statutes
contributions—10% of those who made have transformed agency operations,
creating challenges and opportunities and regulations generally contemplate
contributions to presidential candidates contributions and disbursements being
did so by ‘‘text message from their cell for agency records management. Greater
reliance on electronic communication made only by cash, check, or ‘‘draft,’’
phone or using a cell phone app.’’ 11 without taking into account electronic
Coinciding with the increased use of and systems has radically increased the
volume and diversity of information transactions, records, or
electronic payments is the regular use of communications. Thus, to implement
electronic records, including that agencies must manage.’’ 15 Indeed,
a bipartisan congressional group noted FECA and the Funding Acts in a manner
transactional records, and electronic that accounts for the increased use of
communications. A Government in 2014 that the ‘‘acceptance of
electronic documents has become a and reliance on newer technologies, the
Accounting Office report on the U.S. Commission is considering updates to
Postal Service in 2013 found that the cornerstone of internet commerce and is
vital to our country’s economy’’ and its regulations, as described below.
postal service faces significant decreases
in mail volume—the volume of first- urged federal government adoption of C. Proposed General Definitions
class mail has declined 33 percent since tools, such as electronic signatures, Many of the Commission’s current
2001 and the volume of standard mail which ‘‘have reduced paper burdens for regulations do not account for
(primarily advertising) has declined 23 consumers and streamlined business technological developments in the
percent since 2007—‘‘as online operations throughout the United States, creation, maintenance, and submission
providing remarkable consumer gains in of electronic documentation,
www.pewinternet.org/files/2015/03/PI_ terms of convenience, ease of use, particularly in the context of electronic
Smartphones_0401151.pdf. transaction speed and reduced costs.’’ 16 transactions. The Commission therefore
8 Id. at 5–6.
9 Aaron Smith, Pew Research Ctr. Internet and 12 See U.S. Gov’t Accountability Office, GAO–13–
proposes to revise its regulations to
Am. Life Project, Civic Engagement in the Digital 562T, U.S. Postal Service: Urgent Action Needed to encompass electronic documents and
Age 24 (2013), www.pewinternet.org/files/old- Achieve Financial Sustainability 2–3 (2013), transactions. Specifically, the
media//Files/Reports/2013/PIP_
CivicEngagementintheDigitalAge.pdf (finding that,
www.gao.gov/assets/660/653841.pdf. But see Lisa Commission proposes to add new
Rein, Federal Government Still Depends Heavily on general definitions to 11 CFR part 100—
of 16% of Americans who had made political Snail Mail, Wash. Post, June 5, 2011,
contribution in 2012, 23% had done so only over www.washingtonpost.com/politics/federal- for the terms ‘‘record,’’ ‘‘written,
internet, while 60% had done so only offline); see government-still-depends-heavily-on-snail-mail/ writing, and a writing,’’ and ‘‘signature
also Aaron Smith, Pew Research Ctr. Internet and
Am. Life Project, The Internet and Campaign 2010,
2011/06/05/AGIA8hJH_story.html (describing and signed’’—and to revise the existing
increase in government use of first-class mail); definition of ‘‘file, filed, and filing’’ at
at 21 (2011), www.pewinternet.org/∼/media//Files/
Republican Nat’l Comm., Growth & Opportunity
Reports/2011/
Project 59 (2013) (noting continuing relevance of 11 CFR 100.19. The Commission
Internet%20and%20Campaign%202010.pdf intends each of these definitions to
direct mail in political fundraising as it ‘‘raised
(finding that online contributions increased from
three percent in 2006 mid-term elections to four
twice as much as the web’’ for Republican Party in apply to all regulations implementing
2012 presidential election). FECA and the Funding Acts in 11 CFR
percent in 2010); Aaron Smith, Pew Internet and 13 See U.S. Gov’t Accountability Office, supra
Am. Life Project, The Internet’s Role in Campaign
note 12, at 3 (attributing decrease in paper mail to
chapter 1, subchapters A–F (parts 100
2008, at 38–39 (2009), www.pewinternet.org/∼/ through 300 and 9000 through 9042).18
media//Files/Reports/2009/The_Internets_Role_in_ increase in ‘‘competition from electronic
Campaign_2008.pdf (showing that nine percent alternatives’’).
14 Pew Research Ctr., U.S. Smartphone Use in www.thehill.com/policy/technology/212170-
made online contributions).
10 Aaron Smith & Maeve Duggan, Pew Research 2015, at 5 (2015), www.pewinternet.org/files/2015/ lawmakers-want-more-e-signatures.
Ctr. Internet and Am. Life Project, Presidential 03/PI_Smartphones_0401151.pdf. 17 See, e.g., FEC, Freedom of Information Act,
sradovich on DSK3GMQ082PROD with PROPOSALS2
15 Presidential Memorandum, Managing www.fec.gov/press/foia.shtml#search=FOIA (last
Campaign Donations in the Digital Age 2 (2012),
www.pewinternet.org/∼/media/Files/Reports/2012/ Government Records, 76 FR 75423, 75423 (Dec. 1, visited Oct. 5, 2016); FEC, Procedures Regarding
PIP_State_of_the_2012_race_donations.pdf (finding 2011); see also Office of Mgmt. & Budget & Nat’l Draft Advisory Opinions, www.fec.gov/law/
that 67% contributed in person, over telephone, or Archives and Records Admin., M–12–18, Managing draftaos.shtml (last visited Oct. 5, 2016); FEC,
through mail); see also Republican Nat’l Comm., Government Records Directive (2012), Submit Comments on Ongoing Rulemakings,
Growth & Opportunity Project 58 (2013), http:// www.whitehouse.gov/sites/default/files/omb/ sers.fec.gov/fosers (last visited Oct. 4, 2016).
goproject.gop.com/rnc_growth_opportunity_book_ memoranda/2012/m-12-18.pdf (setting goals and 18 See 11 CFR 9001.1 (applying definitions in part
2013.pdf (noting that, in 2012, ‘‘email raised more steps for federal agencies to eliminate paper and use 100 to public finance regulations unless expressly
than twice the percentage of total funds it raised in electronic recordkeeping). stated otherwise), 9031.1 (same). The proposed part
2008’’). 16 Julian Hattem, Lawmakers Want More E- 100 definitions would not apply to the
11 Smith & Duggan, supra note 10, at 2. signatures, The Hill, July 14, 2014, http:// Continued
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/2.svg)
![76418 Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules
These new and revised definitions are several sources that describe a variety of information may be memorialized.
designed to be broad enough to paper and electronic records. These Thus, the Commission proposes to
encompass both traditional (paper) and sources include Black’s Law include in the definition information
electronic documents and flexible Dictionary,23 the Federal Rules of that is ‘‘inscribed on a tangible
enough to remain relevant as new forms Evidence,24 Federal Rules of Civil medium’’ or ‘‘stored in an electronic or
of electronic documentation emerge in Procedure,25 the Electronic Signatures other medium.’’ Similar language is
the future. in Global and National Commerce Act used in the Black’s Law Dictionary, E-
(also known as the E-Sign Act),26 and Sign Act, UETA, and Federal Rules of
1. New Definition of ‘‘Record’’—
the Uniform Electronic Transactions Act Civil Procedure definitions of ‘‘record.’’
Proposed 11 CFR 100.34
(‘‘UETA’’).27 The proposed definition By including information stored in
FECA requires each political uses the term ‘‘information’’ (as do the electronic ‘‘or other’’ media, the
committee to ‘‘keep an account of’’ its Black’s Law Dictionary, E-Sign Act, and Commission intends the definition of
contributions and disbursements and to UETA definitions of ‘‘record’’) rather ‘‘record’’ to be broad and flexible
maintain and preserve certain records.19 than more specific examples of the enough to address any new forms of
The Funding Acts similarly require that forms in which information may be media on which information may be
certain records be kept, and furnished to presented (such as memoranda, reports, stored as technology develops.
the Commission on request.20 The and other examples used in the Federal
Commission’s regulations implementing The Commission proposes to require
Rules of Evidence and Federal Rules of
these requirements refer to ‘‘record(s)’’ any information stored on ‘‘electronic or
Civil Procedure definitions of ‘‘record’’).
almost 150 times, but few such other’’ (non-tangible) media to be
By proposing to use this broader term,
references that include definitions or the Commission intends the definition retrievable and reviewable in visual or
specific examples refer to electronic to be flexible enough to encompass any aural form. Most of the source
documentation.21 The Commission has new forms of memorializing information definitions noted above similarly
therefore received numerous requests that may arise as new documentation require information to be both
for guidance regarding how its technologies emerge. retrievable and perceivable. The
recordkeeping provisions apply to Similarly, the Commission intends Commission proposes to require
electronic records.22 the definition of ‘‘record’’ to be flexible information to be retrievable in ‘‘visual
The Commission now proposes to add with respect to the media in which or aural’’ form so that the Commission
a general definition of ‘‘record’’ at 11 can review the record and, when
CFR 100.34 that would expressly 23 See Record, Black’s Law Dictionary (10th ed. appropriate, make it available to the
include both paper and electronic 2014) (‘‘record’’ is ‘‘[i]nformation that is inscribed public. In essence, therefore, the
records. Proposed 11 CFR 100.34 has on a tangible medium or that, having been stored Commission intends the definition to
in an electronic or other medium, is retrievable in
two components. perceivable form’’ (citing UCC 1–201(b)(31)).
enable any person to comply with the
First, § 100.34(a) would define 24 See Fed. R. Evid. 101(b)(4) (‘‘record’’ includes Commission’s recordkeeping regulations
‘‘record’’ broadly, as ‘‘information that ‘‘a memorandum, report, or data compilation’’), through the use of tangible or intangible
is inscribed on a tangible medium or 1001(b) (‘‘ ‘recording’ consists of letters, words, media, so long as the information stored
numbers, or their equivalent recorded in any in such records can be retrieved and
that is stored in an electronic or other manner’’), 1001(d) (‘‘original’’ recording is
medium from which the information ‘‘recording itself or any counterpart intended to reviewed.
can be retrieved and reviewed in visual have the same effect by the person who executed The Commission seeks comment on
or aural form.’’ The definition draws on or issued it. For electronically stored information,
‘original’ means any printout — or other output the proposed definition of ‘‘record.’’ Is
readable by sight — if it accurately reflects the it too narrow or too broad? Would the
administrative regulations in parts 1–8 (such as information.’’). proposed definition benefit from
those implementing the Privacy Act or FOIA), 25 See Fed. R. Civ. P. 34(a)(1)(A) (party may serve
which generally have their own definition sections providing specific examples of
discovery of ‘‘any designated documents or
because they implement different statutes than the electronically stored information—including ‘‘records’’? If so, what examples should
regulations in the remainder of 11 CFR chapter 1. writings, drawings, graphics, charts, photographs, the Commission add?
19 See 52 U.S.C. 30102(c), (d), (h)(2), (i); see also
sound recordings, images, and other data or data
52 U.S.C. 30104(i)(8)(A)(ii) (including in definition compilation—stored in any medium from which
Second, proposed 11 CFR 100.34(b)
of ‘‘bundled contribution’’ contributions received information can be obtained directly or, if requires any person who provides an
and credited through ‘‘records,’’ among other necessary, after translation by the responding party electronic (or otherwise non-tangible)
methods). into a reasonably usable form’’). record to the Commission to provide the
20 See 26 U.S.C. 9003(a)(2), 9012(d)(1)(B), 26 See 15 U.S.C. 7006(9) (‘‘record’’ is ‘‘information
9033(a)(2), 9042(c)(1)(B); see also 26 U.S.C. 9009(b)
equipment and software needed to
that is inscribed on a tangible medium or that is
(authorizing Commission to require keeping and stored in an electronic or other medium and is retrieve and review the information in
submission of records), 9039(b) (same). retrievable in perceivable form’’), 7006(4) the record, upon request by, and at no
21 See, e.g., 11 CFR 102.9(b)(2) (requiring records (‘‘electronic record’’ is record ‘‘created, generated, cost to, the Commission. The proposed
such as canceled checks, receipts, and carbon sent, communicated, received, or stored by regulation specifies that the
copies for disbursements over $200), 102.9(d) electronic means’’).
(addressing best efforts to obtain ‘‘receipts, invoices, 27 See Unif. Elec. Transactions Act 2(7) (Nat’l Commission may request such
and cancelled checks’’); but see 11 CFR 102.9(a)(4) Conference of Comm’rs on Unif. State Laws 1999), equipment and software when the
(requiring photocopy of each check or written www.uniformlaws.org/shared/docs/ Commission is unable to review the
instrument or digital image of each check or written electronic%20transactions/ueta_final_99.pdf record using the Commission’s existing
instrument), 104.22(a)(6)(ii)(A) (defining ‘‘record’’ (‘‘electronic record’’ is ‘‘record created, generated,
for lobbyist bundling purposes to include electronic sent, communicated, received, or stored by
equipment and software. A comparable
requirement currently appears in 11
sradovich on DSK3GMQ082PROD with PROPOSALS2
records). electronic means’’), 2(13) (‘‘record’’ is ‘‘information
22 See, e.g., Advisory Opinion 1995–09 that is inscribed on a tangible medium or that is CFR 102.9(a)(4)(ii) for political
(NewtWatch PAC) (approving proposal to maintain stored in an electronic or other medium and is committees that maintain digital images
records supporting electronic fund transfers); retrievable in perceivable form’’); see also id. at 2(5)
Advisory Opinion 1993–04 (Christopher Cox (‘‘ ‘Electronic’ means relating to technology having
of checks or written instruments for
Congressional Committee); Advisory Opinion 1994– electrical, digital, magnetic, wireless, optical, contributions exceeding $50 and in 11
40 (Alliance for American Leadership); see also electromagnetic, or similar capabilities’’). The CFR 9036.2(b)(1)(vi) for publicly funded
FEC, Campaign Guide: Congressional Candidates UETA is a model law developed by the National candidates submitting certain digital
and Committees 76 (2014), www.fec.gov/pdf/ Conference of Commissioners on Uniform State
candgui.pdf (describing recordkeeping for credit Laws. It has been adopted in 47 states and the
images. If the Commission adopts
card disbursements). District of Columbia. proposed § 100.34(b), it would remove
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/3.svg)
![76420 Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules
Funding Acts have similar ‘‘writing’’ ‘‘record,’’ the Commission proposes that mentioning ‘‘electronic mail’’ implicitly
and ‘‘written’’ requirements.32 In the ‘‘writing’’ may be set down in any exclude email. To avoid such
Commission’s regulations, the terms medium or form, including electronic. redundancy and confusion, the
‘‘written’’ and ‘‘writing’’ (or forms of The examples in the proposed Commission proposes to remove these
these words) appear more than 200 definition are drawn from examples in three references to electronic mail.
times, usually without definition or the Black’s Law Dictionary definition of Second, the Commission proposes to
example.33 The Commission has, ‘‘writing’’ and include those media that make conforming changes regarding
however, interpreted at least one of the Commission believes are most likely notifications, reports, and other
these regulations to encompass certain to be used by political committees. communications that, under existing
categories of electronic documents.34 However, the examples are intended to regulations, must be made by ‘‘letter.’’
To clarify that ‘‘written’’ material or be illustrative and not an exhaustive In light of the proposed broad definition
material ‘‘in writing’’ can be either list. of ‘‘writing,’’ and to avoid an
tangible or electronic, the Commission The Commission seeks comment on implication that the communications
is proposing to add a new general the proposed definition. Is the described in those provisions must be
definition at 11 CFR 100.35.35 The definition broad enough to encompass on paper, the Commission proposes to
proposed definition would essentially writings in various media, while also replace each reference to ‘‘letter’’ with
replicate Rule 1001(a) of the Federal specific enough to provide meaningful ‘‘writing’’ in the following provisions:
Rules of Evidence by defining the terms guidance? Is any part of the definition 11 CFR 100.3(a)(3) (candidate
‘‘written,’’ ‘‘in writing,’’ and ‘‘a writing’’ unnecessary or potentially problematic? disavowal), 110.6(c)(1)(v) (conduit
to mean ‘‘consisting of letters, words, Are the examples of ‘‘medi[a] and reporting), 111.9(a) and (b) (Commission
numbers, or their equivalent set down form[s]’’ helpful? Would the proposed notification of reason to believe
in any medium or form, including definition benefit from different or finding), 111.17(a) and (b) (Commission
paper, email or other electronic additional examples? Should the notification of probable cause finding),
message, computer file, or digital Commission specifically require that a 111.18(d) (respondent notification of
storage device.’’ 36 In this proposed writing be reviewable 38 and/or desire to negotiate conciliation),
definition, the Commission intends reproducible,39 or would that 111.37(a) and (b) (Commission
‘‘writing’’ and ‘‘written’’ to be broad requirement be adequately encompassed notification of administrative fine
enough to encompass not only letters by the proposed definition of ‘‘record,’’ determination), 111.40(a) (same),
and words, but also their equivalent— as discussed above? 116.8(b) (creditor notification of intent
such as images or graphics (e.g., emojis) In conjunction with the proposed to forgive debt), 9003.1(a)(1) (candidate
used in lieu of text—that may arise as definition, the Commission proposes to agreement to comply with public
new forms of electronic writing emerge make conforming changes to a number funding conditions), 9032.2(d)
in the future.37 As in the definition of of regulations, as described below. (candidate disavowal), 9033.1(b)(8)
First, the Commission proposes to (submission of information changes by
opinion requests and advisory opinions), amend three regulations that refer to publicly funded candidates), and
30109(a)(1) (enforcement complaints), ‘‘electronic mail’’ as a ‘‘written method’’ 9033.5(a)(2) (publicly funded candidate
30109(a)(12)(A) (confidentiality waiver), of notification by which a political notice of inactivity).
30118(b)(4)(B) (semiannual solicitations); see also Similarly, the Commission proposes
52 U.S.C. 30107(a)(1) (Commission authority to committee may notify a contributor that
require reports), 30124(a) (fraudulent the committee has redesignated or to revise several references to ‘‘letters’’
misrepresentation). reattributed a contribution. See 11 CFR or ‘‘mailings’’ by replacing them with
32 See, e.g., 26 U.S.C. 9002(1) (authorization of
110.1(b)(5)(ii)(B)(6) (notification of references to the type of information
committee), 9003(a) (agreement for eligibility for contained therein, such as
payment), 9032(1) (authorization of committee),
redesignation), 110.1(b)(5)(ii)(C)(7)
(same), 110.1(k)(3)(ii)(B)(3) (notification ‘‘certification,’’ ‘‘report,’’ ‘‘notice,’’ or
9032(9) (person authorized to incur expense),
9033(a) (agreement for eligibility for payment), of reattribution). These references to ‘‘agreement.’’ For example, 11 CFR
9034(a) (written instrument as contribution); see ‘‘electronic mail’’ will be redundant if 9003.2(d) currently states: ‘‘Major party
also 26 U.S.C. 9009(b) (Commission’s authority to
the Commission adopts the proposed candidates shall submit the
require the keeping and submission of records), certifications required under 11 CFR
9039(b) (same). new definition of ‘‘written.’’
33 See, e.g., 11 CFR 102.7(c) (treasurer’s Furthermore, the continued inclusion of 9003.2 in a letter which shall be signed
authorization), 109.33(a) (assignments), 110.1(b) these references might cause confusion and submitted within 14 days after
(redesignation of contribution), 9003.3(a)(1)(i)(C) regarding whether other Commission receiving the party’s nomination for
(designations to GELAC), 9007.2(c) (disputing election,’’ and the provision makes
determinations). regulations that address ‘‘written’’
34 See, e.g., Electronic Contributor material without specifically several additional references to ‘‘such
Redesignations, 76 FR 16233 (Mar. 23, 2011) (noting
letter.’’ The Commission proposes to
internet-based redesignation method that 2014/12/29/the-word-of-the-year-is-not-actually-a- revise § 9003.2(d) to read: ‘‘Major party
Commission found to be ‘‘in writing and be signed word-its-this-emoji (noting that 2014’s annual candidates shall sign and submit the
by the contributor’’ as required by 11 CFR survey resulted in graphic symbol as most certifications required under 11 CFR
110.1(b)(5) and 110.2(b)(5)). frequently used English ‘‘word’’ on internet).
35 Some Commission regulations that require a 38 See Writing, Black’s Law Dictionary (10th ed.
9003.2 within 14 days after receiving
document to be ‘‘in writing’’ or ‘‘written’’ also 2014) (defining ‘‘writing’’ as any ‘‘intentional
the party’s nomination for election,’’
require the document to be signed. The Commission recording of words . . . that may be viewed or and to replace further references to
is proposing a new definition of ‘‘signed,’’ below. heard with or without mechanical aids. This ‘‘such letter’’ with the phrase ‘‘such
sradovich on DSK3GMQ082PROD with PROPOSALS2
36 See Fed. R. Evid. 1001(a) (‘‘ ‘writing’ consists of includes hard-copy documents, electronic certification.’’ The Commission
letters, words, numbers, or their equivalent set documents on computer media, audio and
down in any form’’). The Federal Rules of Evidence videotapes, emails, and any other media on which
proposes to similarly replace each
separately clarify that ‘‘a reference to any kind of words can be recorded.’’). reference to ‘‘letter’’ or ‘‘mailing’’ in the
written material or any other medium includes 39 See 15 U.S.C. 7001(e) (providing that if statute following provisions: 11 CFR
electronically stored information.’’ Fed. R. Evid. or regulation requires certain records to ‘‘be in 110.6(c)(1)(ii) (conduit reporting),
101(b)(6). writing, the legal effect, validity, or enforceability 111.6(a) (response to complaint in
37 See Elahe Izadi, The Word of the Year Is Not of an electronic record of such . . . record may be
Actually a Word. It’s this Emoji: [heart emoji], denied if such electronic record is not in a form that
enforcement action), 111.23(a) and (b)
Wash. Post, Dec. 29, 2014, is capable of being retained and accurately (respondent notification of legal
www.washingtonpost.com/news/the-intersect/wp/ reproduced for later reference’’). representation), 114.8 (trade
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/5.svg)
![Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules 76421
association’s solicitation), 116.8(b) would alter the substantive application In Commission regulations, the terms
(creditor notification of intent to forgive of § 300.64, the Commission proposes to ‘‘sign,’’ ‘‘signed,’’ and ‘‘signature’’ (and
debt), 200.3(a)(2) (Commission conform that section to § 110.11 by variants thereof) appear more than 50
solicitation of comments from replacing the word ‘‘written’’ with times. Only some of these references
Commissioner of Internal Revenue on ‘‘printed’’ in § 300.64(c)(3)(ii) and (iii) provide for electronic signatures,45
rulemaking petition), 200.3(a)(3) and removing the word ‘‘written’’ from although the Commission has
(Commission notification to rulemaking § 300.64(c)(3)(v). interpreted at least one of the
petitioner), 200.4(b) (same), 201.3(b)(1) The Commission seeks comment on regulations that does not so provide to
(candidate submissions under public the conforming changes proposed nonetheless allow certain electronic
funding rules), 201.3(b)(2)(i) above.41 Should the Commission make signatures.46 Similarly, only some of the
(Commission notifications under public additional conforming amendments if it Commission regulations requiring
funding rules), 9003.1(a)(2) (candidate adopts the new definition? certification under penalty of perjury
agreement to comply with public The Commission also seeks comment provide for electronic certifications.47
funding conditions), 9033.1(a)(1) on whether any existing regulatory To clarify that the regulatory signature
(candidate agreement to comply with references to ‘‘written,’’ ‘‘in writing,’’ or requirements may generally be met
public funding conditions), and ‘‘a writing’’ should be excluded from the electronically, the Commission is
9033.2(a)(1) (publicly funded candidate proposed new definition. For example, proposing to add a general definition of
certification). several Commission regulations use the ‘‘signature’’ at 11 CFR 100.36. The
The Commission is also proposing to term ‘‘written instrument’’ to mean a proposed definition contains three
revise some uses of ‘‘letter’’ in check, money order, or negotiable paragraphs.
regulations to which the proposed instrument. The Commission believes Proposed paragraph (a) defines
definition of ‘‘writing’’ would not apply. that ‘‘written instrument’’ is generally ‘‘signature’’ as ‘‘an individual’s name or
See supra note 18. Specifically, the understood to be a term of art, such that mark on a writing or record that
Commission proposes the following it would not be affected by a new identifies the individual and
revisions to its public disclosure and definition of ‘‘written,’’ but should the authenticates the writing or record.’’
Rehabilitation Act regulations: (1) new definition of ‘‘written’’ nonetheless This definition draws on legal and other
Replace ‘‘Letter requests’’ with expressly exclude the term ‘‘written dictionary definitions of ‘‘signature.’’ 48
‘‘Requests’’ in 11 CFR 5.4(a)(5) instrument’’? 42 Are there other uses of
‘‘written’’ in the Commission’s (enforcement complaints), 26 U.S.C. 9003(b)–(c)
(describing types of public disclosure (payment eligibility), 9004(d) (personal fund
records); (2) replace the reference to ‘‘a regulations that should be excluded or expenditures); see also 52 U.S.C. 30104(a)(11)(C)
letter containing’’ certain Rehabilitation defined separately from the proposed (requiring Commission to provide method for
Act notifications with a requirement for new general definition? perjury certifications for electronically filed
reports), 30104(d)(3) (same).
the notifications to be ‘‘in writing,’’ 11 3. New Definition of ‘‘Signature’’ and 45 See, e.g., 11 CFR 104.18(g) (providing for
CFR 6.170(g); and (3) conform § 6.170(h) ‘‘Electronic Signature’’—Proposed 11 electronic signatures for reports), 111.4(b)(2)
to the forgoing change by replacing that CFR 100.36 (complaints), 111.23(a) (designation of counsel),
section’s reference to ‘‘the letter’’ 300.37(d) (certifications by certain tax-exempt
required by § 6.170(g) with ‘‘the FECA and the Funding Acts require organizations), 9034.2(c) (allowing for alternative
notification.’’ certain documents to be signed,43 signatures for contributors over the internet).
46 See, e.g., Electronic Contributor
Third, the Commission is proposing sworn, notarized, submitted under oath,
Redesignations, 76 FR 16233; see also Advisory
to replace the terms ‘‘written document’’ or certified under penalty of perjury.44 Opinion 2013–12 (Service Employees International
and ‘‘written documentation’’ with 41 The Commission is not proposing to make
Union COPE) at 3–4 (discussing Commission’s
‘‘writing’’ in 11 CFR 100.29(b)(6)(ii)(A) history of approving ‘‘authorizations in a form other
conforming changes to the regulations regarding than the traditional written signature, where the use
and 9034.2(c)(1)(i). publicly funded nominating conventions, 11 CFR of technology would not compromise the intent of
Finally, the Commission proposes part 9008, because these regulations may be the the [FECA] or Commission regulations’’).
conforming changes to account for the subject of a separate rulemaking. See Press Release, 47 Compare 11 CFR 104.4(d)(2) (electronic
FEC Issues Interim Reporting Guidance for National certification under penalty of perjury for reporting),
fact that the new general definition of Party Committee Accounts, (Feb. 13, 2015), 104.18(g) (same), and 109.10(e)(2)(ii) (same), with
‘‘written’’ may create confusion when www.fec.gov/press/press2015/news_releases/ 11 CFR 111.4(b)–(c) (notarization requirement for
applied to the use of that term in 11 CFR 20150213release.shtml; see also Consolidated and complaints), and 111.11 (sworn answers). See also
300.64(c)(3). Section 300.64(c)(3) Further Continuing Appropriations Act, 2015, 11 CFR 100.93(a)(3)(iv)(A) (aircraft operator
Public Law 113–235, 128 Stat. 2130, 2772 (2014) certificated by Federal Aviation Administration or
provides that certain ‘‘written’’ material (amending FECA with respect to national party foreign authority), 100.93(g)(3) (certification from
must satisfy the disclaimer requirements convention funding); Gabriella Miller Kids First aircraft service provider), 102.2(a)(3) (certification
of 11 CFR 110.11(c)(2). Section 110.11, Research Act, Public Law 113–94, 128 Stat. 1085 by committee of multicandidate committee criteria),
however, sets forth requirements such (2014) (amending Funding Acts with respect to 104.3(b)(3)(vii)(B) (committee’s certification, under
national party convention funding). To review and penalty of perjury, in independent expenditure
as font size and display type— comment on documents on that subject, visit http:// report), 104.3(d)(1)(v) (certification from lending
requirements that, both on their face www.fec.gov/fosers, reference REG 2014–10. institution concerning loans to political committee),
and under the explicit terms of the 42 See 11 CFR 102.9(a)(4)(i)-(ii), 104.8(d)(1),
300.11(d) (signed written certification by 501(c)
regulation, apply only to ‘‘printed’’ 110.1(k)(3)(ii)(B)(1), 110.1(l)(1), 110.1(l)(4)(ii), organization), 300.37(d) (same).
material.40 See 11 CFR 110.11(c)(2). 110.6(c)(1)(v), 110.20(a)(5)(iii), 9034.2(a)(1), 48 See Signature, Black’s Law Dictionary (10th ed.
9034.2(a)(4), 9034.2(b), 9034.2(c), 9034.3(c), 2014) (defining ‘‘signature’’ as any ‘‘name, mark, or
Thus, to avoid suggesting that the 9034.9(c)(7)(iv), 9036.1(b)(3), 9036.2(b)(1)(vi), writing used with the intention of authenticating a
proposed new definition of ‘‘written’’
sradovich on DSK3GMQ082PROD with PROPOSALS2
9036.3(b)(1)–(3), 9036.3(c)(3), 9036.5(c)(1). document’’ (citing U.C.C. 1–201(37) and 3–401(b)
43 See 52 U.S.C. 30109(a)(1) (enforcement
and Restatement (Second) of Contracts 134 (1979)));
40 Most issues concerning the disclaimer complaints), 30109(a)(4)(B)(ii) (conciliation Signature, Oxford English Dictionary Online,
requirements for electronic communications, such agreements); see also 52 U.S.C. 30104(a)(1) www.oed.com (subscription required) (‘‘A person’s
as the treatment of electronic materials as (reports), 30104(a)(11)(C) (requiring Commission to name written (esp. in a distinctive way) so as to
‘‘printed,’’ are outside the scope of this rulemaking. provide method other than signature for verification authenticate a document, authorize a transaction, or
They may be addressed in a separate rulemaking. of electronically filed reports), 30104(d)(3) (same). identify oneself as the writer or sender of a letter.
See Internet Communication Disclaimers, 76 FR 44 See 52 U.S.C. 30104(b)(6)(B)(iii) (independent Also: a distinctive mark or cross serving this
63567 (Oct. 13, 2011); see also infra note 106. To expenditure reports), 30104(c)(2)(B) (same), purpose.’’) (last visited Oct. 4, 2016); Signature,
review and comment on documents on that subject, 30104(f)(2) (electioneering communication reports), Random House Dictionary of the English Language,
visit www.fec.gov/fosers, reference REG 2011–02. 30107(a)(1) (reports and answers), 30109(a)(1) Continued
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/6.svg)
![Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules 76423
Commission seeks comment on whether numerous other documents to the 11 CFR 1.3(b) (Privacy Act requests),
this proposal provides sufficient Commission. Many of these current 1.4(a) (same), 2.2(a) (Sunshine Act),
safeguards of integrity and authenticity regulations regarding sending 4.5(a)(4)(i) (FOIA requests), 4.5(a)(4)(iv)
for material that must be sworn or documents to the Commission (same), 4.7(b)(1) (same), 4.8(c) (FOIA
otherwise verified. Should the specifically include the Commission’s appeals), 11 CFR 5.5(a) (Public
Commission require additional mailing address (999 E Street, NW., Disclosure records requests), 5.5(c)
safeguards? For example, in a recent Washington, DC 20463).58 As such, the (public disclosure requests via FOIA),
interpretive rule, the Commission noted regulations suggest that the submissions 6.103(b) (Rehabilitation Act), 6.170(d)(3)
that a political committee could check must be made physically (such as by (Rehabilitation Act complaints), 6.170(i)
a contributor’s electronic authorization mail or hand-delivery), rather than (Rehabilitation Act appeals), 7.2(a)
against existing committee records to electronically. (standards of conduct), 100.9 (definition
assure ‘‘the contributor’s identity and To provide the Commission with of ‘‘Commission’’), 102.2(a)(1)
intent comparable to that of a written greater flexibility to accept documents (statements of organization), 111.4(a)
signature.’’ 56 Should all electronic electronically, the Commission proposes (enforcement complaints), 111.15(a)
oaths and certifications require some to add new paragraph (g) to 11 CFR (motions to quash or modify subpoena),
form of external verifiability (such as by 100.19. Under new paragraph (g), a 111.16(c) (probable cause briefs),
reference to existing committee records document other than those already 112.1(e) (advisory opinion requests),
as contemplated in the interpretive covered by paragraphs (a) through (f) 112.3(d) (advisory opinion comments),
rule)? If so, how? may be filed with the Commission ‘‘in 200.2(b)(5) (petitions for rulemaking),
Finally, proposed paragraph (c) also person or by mail, including priority 9002.3 (definition of ‘‘Commission’’),
states that ‘‘[a] writing or record may be mail or express mail, or overnight and 9032.3 (same).
notarized electronically pursuant to delivery service, [at the Commission’s For the same reasons, the Commission
applicable State law.’’ A number of street address], or by any alternative also proposes to amend other regulatory
states currently allow for electronic means, including electronic, that the requirements relating to
notarization.57 Is there any reason why Commission may prescribe.’’ The communications by mail:
the Commission should not accept Commission intends to use this • Sections 4.5(a)(4)(i) and 4.8(b)
documents notarized electronically proposed change to adopt such currently require that certain
pursuant to state law? procedures for receiving electronic information be included ‘‘on the
4. Revised Definition of ‘‘File, Filed, or submissions—such as through online envelope’’ in which a FOIA request or
Filing’’—Proposed 11 CFR 100.19(g) forms 59 or email 60—as the Commission appeal is sent to the Commission. As
determines to be appropriate for the revised, these regulations would state
The Commission proposes to revise
the definition of ‘‘file, filed, or filing’’ at various categories of affected that such information must be clearly
11 CFR 100.19 so that interested parties documents. indicated on the ‘‘envelope or subject
can more easily communicate The Commission also proposes to line, or in a similarly prominent
electronically with the Commission. revise the introductory paragraph of 11 location’’ of the communication.
The Commission also proposes to make CFR 100.19 to explicitly note the scope • Section 112.4(g) currently provides
conforming amendments throughout 11 of new paragraph (g). This proposed that an advisory opinion must be ‘‘sent
CFR chapter I. change is not intended to have any by mail, or personally delivered’’ by the
Section 100.19 currently defines ‘‘file, effect on the existing rules with respect Commission to the person who
filed or filing’’ to include certain forms to documents governed by paragraphs requested it. As revised, the provision
of electronic submission, but only in the (a) through (f). would require only that the advisory
context of documents that must be filed Similarly, the Commission proposes opinion ‘‘be provided’’ by the
with the Commission or the Secretary of to make conforming amendments by Commission to the requestor, so as to
the Senate under 11 CFR parts 101, 102, replacing the Commission’s street encompass electronic transmission of
104, 105, 107, 108, and 109. As such, address in a number of regulations that the advisory opinion.
the current rule addresses the filing of refer to submissions to the • Section 102.6(c)(2) currently
reports and statements only regarding Commission—or to a particular provides that a solicitation of
independent expenditures, Commission officer, such as the Chief contributions to a separate segregated
electioneering communications, and the FOIA Officer—with references to fund may be included ‘‘in’’ a bill for
organization, contributions, and ‘‘filing’’ and § 100.19(g), as appropriate, membership dues. Because such bills
disbursements of political committees. and by removing the Commission’s are now sometimes delivered
But, as described in more detail below, street address from the definition of electronically, rather than in paper
the Commission’s regulations also ‘‘Commission.’’ 61 These regulations are form, the Commission proposes to
require or provide for the submission of change ‘‘in’’ to ‘‘with.’’ The substantive
58 See, e.g., 11 CFR 1.3(b) (Privacy Act requests), requirements for soliciting contributions
56 See Electronic Contributor Redesignations, 76 111.4(a) (complaints), 111.15(a) (motions to quash to a separate segregated fund would not
FR at 16233. or modify subpoena), 112.1(e) (advisory opinion change.62
requests), 112.3(d) (comments on advisory opinion
57 The National Association of Secretaries of State
requests). • In § 114.1(g), which provides a non-
issued a study in 2011 that examined electronic
notarization as used in 16 states. See Nat’l Assoc.
59 See, e.g., FEC, Searchable Electronic exhaustive list of the manner in which
sradovich on DSK3GMQ082PROD with PROPOSALS2
of Secs. of State, Issues and Trends in State Notary Rulemaking System—Basic Search, sers.fec.gov/
Regulation: NASS Report on State Notarization fosers (release date June 14, 2013) (web portal for to ‘‘filing’’ in parts 1–8 would explicitly incorporate
Policies and Practice 10–11 (2011); see also commenting on rulemakings). by reference new 11 CFR 100.19(g).
60 See, e.g., FEC, Procedures Regarding Draft
Electronic Notarization, Notary Pub. Adm’rs, 62 The twice-annual solicitation of employees
www.npa-section.com/electronicnotarization.html Advisory Opinions, www.fec.gov/law/ outside of the restricted class may be conducted
(last updated July 2016) (showing 23 states draftaos.shtml (establishing email address for only by mail sent to the employee’s residence. See
authorizing electronic notarization); Lisa Prevost, comments on draft advisory opinions) (last visited 52 U.S.C. 30118(b)(4)(B); 11 CFR 114.6(c). Thus, the
The E-Notary Public Is Slow to Catch On, N.Y. Oct. 5, 2016). proposed change to 11 CFR 102.6(c)(2), which
Times, May 22, 2015, www.nytimes.com/2015/05/ 61 Because the definitions in part 100 of the would allow for solicitations by means other than
24/realestate/the-e-notary-public-is-slow-to-catch- Commission’s regulations generally do not apply to mail, would not apply to these twice-yearly
on.html (discussing remote electronic notarization). parts 1–8 of the regulations, the proposed references solicitations.
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/8.svg)
![76424 Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules
a solicitation may be made, the method, including electronically, particularly interested in the
Commission proposes to add ‘‘emails’’ whereby actual notice is given.’’ 64 perspectives of operators and users of
to the existing list of ‘‘mailings, oral Finally, at 11 CFR 111.23(a)(1), the established and emerging electronic
requests . . . , and hand distribution of Commission proposes to add ‘‘email payment platforms—such as PayPal,
pamphlets’’ to recognize that address’’ to the list of information about Venmo, BitPay, Square, and other
solicitations may be made respondent’s counsel that must be electronic wallet, swipe P2P, mobile
electronically.63 provided to the Commission. app, and social media payment
• In § 116.9(a)(2), which describes The Commission intends all of these platforms—as to the operation of these
what constitutes a political committee’s proposed revisions to simplify and proposed rules on those platforms.67
reasonable diligence in attempting to modernize the process by which it The Commission also seeks comment on
locate a creditor, the Commission interacts with respondents and the proposed rules in light of how these
proposes to add email as a valid means complainants during the enforcement practices and standards might change as
of attempting to contact the creditor. process by providing options for new technologies emerge.
electronic communications. Would
• Sections 9003.1(b)(7) and 1. When a Contributor Authorizes a
these proposed revisions increase Transaction: Contribution is ‘‘Made’’
9033.1(b)(8) currently require
efficiency as intended? Would they and ‘‘Received’’
submission of the ‘‘name and mailing
create any additional burdens?
address’’ of the person entitled to What other regulations would be For purposes of the contribution
receive public fund payments on behalf implicated by the proposed revision to limits, Commission regulations specify
of a candidate. The Commission the definition of ‘‘file, filed, or filing’’ at that a contribution is made ‘‘when the
proposes to require the person’s email 11 CFR 100.19? Should the Commission contributor relinquishes control over the
address, as well. consider revising additional regulations contribution’’; control is relinquished
To allow for electronic filing, notice, to provide explicitly for electronic when the contribution ‘‘is delivered by
and service of documents and records in communications or for ‘‘filing’’ pursuant the contributor to the candidate, to the
the Commission’s enforcement process, to the proposed definition? political committee, or to an agent of the
the Commission proposes several political committee.’’ 11 CFR
revisions to part 111 of its regulations. D. Electronic Contributions 110.1(b)(6); see also 11 CFR 110.2(b)(6).
First, the Commission proposes to The Commission is proposing to The regulations further specify that a
remove or limit requirements to file revise its regulations to address contribution that is mailed is considered
multiple copies of documents where electronic contributions. These to be made on the date of the postmark.
multiple copies are no longer necessary. revisions fall into three general Id.
In 11 CFR 111.4(a), the Commission categories that correspond to three Although the regulations are silent as
proposes to clarify that the requirement stages in the electronic flow of funds to when electronic contributions are
for a complainant to file three copies of from a contributor to a political ‘‘made,’’ the Commission has addressed
a complaint applies to non-electronic committee: (1) When the contributor the issue of when credit card
filings only. In 11 CFR 111.15(a) and authorizes the transaction; (2) when the contributions are made in several
111.16(c), the Commission proposes to entity processing the payment (the advisory opinions. See Advisory
delete the provisions that state that a ‘‘payment processor’’) 65 transfers the Opinion 2012–07 (Feinstein for Senate);
respondent ‘‘should . . . if possible’’ contribution to the recipient political Advisory Opinion 2008–08 (Zucker);
file multiple copies of a motion or brief. committee; and (3) when the recipient Advisory Opinion 1991–01 (Deloitte &
political committee deposits the funds Touche PAC); Advisory Opinion 1990–
Second, the Commission proposes to
into its campaign depository. The 14 (AT&T). Generally, the Commission
revise the following regulations that
Commission seeks comment on the has concluded that a credit card
currently refer to ‘‘enclos[ing]’’ a copy of
a document: 11 CFR 111.5(a) proposed changes, especially in light of
Fed. Fin. Inst. Examination Council,
(notification to respondent of the standards and practices that vendors ithandbook.ffiec.gov/it-booklets/retail-payment-
complaint), 111.5(b) (same), and and payment processors use to process systems/payment-instruments,-clearing,-and-
111.16(b) (notification to respondent of payments made by check, credit card, settlement/card-based-electronic-payments/online-
debit card, prepaid card, and other person-to-person-(p2p),-account-to-account-(a2a)-
probable cause recommendation). As payments-and-electronic-cash.aspx (last visited
revised, the regulations would provide payment methods. The Commission is Oct. 6, 2016).
that the Commission shall ‘‘provide’’ a also seeking comment addressing the 67 See, e.g., Vindu Goel, Facebook Announces a
copy of the relevant document. proposed rules in light of the methods Payments Feature for Its Messenger App, N.Y.
by which vendors and payment Times, Mar. 17, 2015, www.nytimes.com/2015/03/
Third, the Commission proposes to 18/technology/facebook-announces-a-payments-
revise 11 CFR 111.13(c) and (d), which processors verify a payor’s identity, feature-for-its-messenger-app.html; Mike Isaac, As
govern the service of subpoenas, orders, attribute payments, and collect, Apple Pay Arrives, Witnessing the Next Step in
and notifications, to add explicit maintain, and transmit transaction Money. Maybe., N.Y. Times, Oct. 20, 2014,
records.66 The Commission is www.nytimes.com/2014/10/21/technology/as-
electronic service options. The apple-pay-arrives-witnessing-the-next-step-in-
regulations currently allow for service 64 The Commission does not propose to make any
money-maybe.html; Vindu Goel, Twitter Begins
by a number of means, including by Testing a ‘Buy’ Button for Instant Purchases by Its
corresponding changes to 11 CFR 111.2(c)—which Users, N.Y. Times, Sept. 8, 2014, nytimes.com/
mail, in person, and ‘‘by any other adds three days to each service period under part 2014/09/09/technology/twitter-begins-testing-buy-
sradovich on DSK3GMQ082PROD with PROPOSALS2
method whereby actual notice is given.’’ 111 for ‘‘any paper’’ served ‘‘by mail’’—because button-for-posts.html; Heather Kelly, Twitter and
The Commission proposes to revise this electronic submissions are essentially immediate Amex to Let You Pay with a Hashtag, CNN (Feb.
and therefore do not require extensions to account 12, 2013, 4:15 p.m.), www.cnn.com/2013/02/11/
last clause to read ‘‘by any other for delivery time. tech/social-media/twitter-hashtag-purchases; see
65 Payment processors include, for example, such
also www.chirpify.com (last visited Oct. 5, 2016);
63 The Commission does not propose to add an entities as First Data, PayPal, BitPay, m-Qube, and but see Brian X. Chen, Few Consumers Are Buying
electronic reference to the non-exhaustive list at 11 other commercial entities that process and transmit Premise of Mobile Wallets, N.Y. Times, Apr. 27,
CFR 114.1(f) of the manner in which a solicited traditional, online, or text-message payments in the 2014, www.nytimes.com/2014/04/28/technology/
contribution may be received because the list ordinary course of business. few-consumers-are-buying-premise-of-mobile-
already includes payroll deduction, which may be 66 See, e.g., Online Person-to-Person (P2P), wallets.html (describing growth of mobile payment
accomplished electronically. Account-to-Account Payments and Electronic Cash, platforms as well as obstacles to wide public use).
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/9.svg)
![Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules 76425
contribution is made ‘‘when the credit also 11 CFR 102.8(b)(2) (same receipt of contributions via commercial
card or credit card number is presented, description of ‘‘receipt’’).69 entities that process contributions
because at that point ‘[t]he contributor In the context of credit card electronically—including entities that
is strictly obligated by the card contributions, the Commission has process contributions made by text
agreement to make payment of the stated that a contribution is received message 71 or via web-based platforms.72
credit card bill and incurs substantial when the contributor’s authorization to The Commission proposes to revise its
penalties with possible collection fees charge the credit card is received. forwarding regulations at 11 CFR 102.8
and cancellation of future credit ‘‘Inasmuch as such authorizations may and its earmarking regulations at 11 CFR
privileges for nonpayment.’ ’’ Advisory be presented to [the recipient’s] bank in 110.6 to codify some of the conclusions
Opinion 2008–08 (Zucker) at 3 (quoting order to credit [the recipient’s] account, of these advisory opinions.
Advisory Opinion 1990–14 (AT&T)); see the receipt of such an authorization is
a. Proposed Revisions To Forwarding
also Advisory Opinion 2012–07 the equivalent of the receipt of a check
Rule, 11 CFR 102.8
(Feinstein for Senate) at 5. The that may be deposited and, thus, the
date this occurs is the date upon which Section 102.8 implements FECA’s
Commission proposes to revise 11 CFR requirement that ‘‘[e]very person who
[the recipient] obtains possession of the
110.1(b)(6) and 110.2(b)(6) by adding a receives a contribution’’ for a political
contribution.’’ Advisory Opinion 1990–
description of when electronic committee must forward the
04 (American Veterinary Medical
contributions—credit card or contribution and information about the
Association PAC) at 2–3.70 Because a
otherwise—are considered to be contributor to the recipient political
commercial payment processor or the
‘‘made.’’ As revised, the regulations recipient political committee may committee within either 10 or 30 days,
would build on the Commission’s receive the contributor’s authorization depending on whether the recipient is
conclusions in the above-referenced before obtaining actual possession of the an authorized or unauthorized
advisory opinions by providing that a contributor’s funds, the Commission committee and the amount of the
contribution made in an electronic proposes to revise 11 CFR 102.8(a) and contribution. 52 U.S.C. 30102(b)(2).
transaction ‘‘is considered to be made (b)(2) to explicitly provide that the date Under the proposed revisions to the
when the contributor authorizes the of receipt is the date that a person either definition of ‘‘receipt,’’ discussed above,
transaction.’’ Does this description obtains possession of a contribution ‘‘or, this forwarding requirement would be
provide sufficient guidance? Should the for a contribution made in an electronic triggered when a commercial payment
regulations provide examples of specific transaction in which the receipt of processor receives a contributor’s
types of ‘‘electronic transactions,’’ such authorization precedes the receipt of authorization to make a contribution,
as the physical presentation of a debit funds, obtains the contributor’s even if the payment processor has not
card; the entry of a credit or prepaid authorization of the transaction.’’ Does yet received the contributor’s funds.
card number in an online form, in Because this scenario occurs
this proposed language provide
person, or by telephone; the transfer of frequently in modern electronic
sufficient guidance? Should it include
a bitcoin; or the sending of a text transactions,73 the Commission
specific examples to show when a
message? Are such examples necessary proposes to add a new paragraph (d) to
contribution is received in different
to distinguish between electronic and 11 CFR 102.8 to make clear that
types of electronic transactions, such as
non-electronic transactions? Would payment processors must satisfy FECA’s
when a debit card is physically
forwarding requirement within 10 or 30
examples tied to specific technologies presented, a credit card number is
days of receiving a contributor’s
be limiting or risk becoming rapidly entered in an online form or given over authorization of a contribution, even if
obsolete? The Commission is not the telephone, or a text message is sent? the processor has not yet received the
proposing to specify how the new contributor’s funds. Under proposed
2. Commercial Payment Processors:
regulation would apply to electronic
Revisions to the Conduit and
payments made long after they are
Forwarding Rules 71 See, e.g., Advisory Opinion 2012–30
authorized, such as those pursuant to (Revolution Messaging); Advisory Opinion 2012–28
recurring monthly payment Many contributions are first received (CTIA—The Wireless Association) (‘‘CTIA II’’);
authorizations.68 Should the revised not by the ultimate recipient political Advisory Opinion 2012–26 (Cooper for Congress et
committees, but by commercial entities al.) (‘‘m-Qube II’’); Advisory Opinion 2012–17 (m-
regulation address this scenario? Qube I); Advisory Opinion 2010–23 (CTIA—The
that process the payments. In several Wireless Association) (‘‘CTIA I’’).
Like the existing regulations regarding recent advisory opinions, the 72 See, e.g., Advisory Opinion 2014–07
when a contribution is ‘‘made,’’ the Commission has addressed the (Crowdpac); Advisory Opinion 2012–35 (Global
regulations concerning when a application of its regulations to the Transaction Services Group); Advisory Opinion
contribution is ‘‘received’’ focus on 2012–22 (skimmerhat); Advisory Opinion 2012–09
(Points for Politics); Advisory Opinion 2011–19
possession. The regulations provide that 69 See also 11 CFR 102.17(c)(3)(iii) (providing that
(GivingSphere); Advisory Opinion 2011–06
the ‘‘date of receipt’’ of a contribution is political committee receives contribution through (Democracy Engine et al.); Advisory Opinion 2007–
the date a person ‘‘obtains possession of joint fundraising committee on date contribution is 04 (Atlatl); Advisory Opinion 2006–08 (Brooks).
received by committee’s joint fundraising 73 For example, when a credit card holder uses a
the contribution.’’ 11 CFR 102.8(a); see representative), 9034.8(c)(4)(iii) (same). credit card to purchase goods or services from a
70 See also Advisory Opinion 2012–35 (Global
merchant, the merchant often receives payment for
68 For example, Advisory Opinion 1991–01 Transaction Services Group) (determining that the goods and services before the credit card holder
(Deloitte & Touche PAC) concerned a political contributions made by credit or debit card are is even billed. See Visa, https://usa.visa.com/run-
sradovich on DSK3GMQ082PROD with PROPOSALS2
committee’s proposal to obtain contributors’ credit received as of date credit or debit card holder your-business/accept-visa-payments.html (follow
card authorizations several months before charging authorizes card to be charged with contribution); ‘‘Learn how Visa transactions work’’ hyperlink and
their credit cards for contributions. The Advisory Opinion 2012–17 (Red Blue T et al.) at 6 click play arrow) (last visited Oct. 5, 2016); What
Commission concluded that, ‘‘[i]n view of the (‘‘m-Qube I’’) (‘‘Under m-Qube’s proposed factoring We Do, Mastercard, www.mastercard.com/us/
contributor’s ability to revoke the authorization’’ arrangement, which is similar to how credit card company/en/whatwedo/processing_behind_
during this time period, each contributor would be contributions are handled, the Commission transaction.html (last visited Oct. 6, 2016).
deemed to relinquish control over a contribution, considers the contributions to be received at the Similarly, in certain text message transactions,
and thus to make the contribution, when the credit time of the opt-in, as opposed to when the bill is payment processors transmit funds to merchants
card was charged, rather than when the paid.’’); FEC, Campaign Guide: Congressional before the mobile phone users pay bills with
authorization occurred. Advisory Opinion 1991–01 Candidates and Committees 23, 74 (2014), associated charges. See Advisory Opinion 2010–23
(Deloitte & Touche PAC) at 4. www.fec.gov/pdf/candgui.pdf. (CTIA I); Advisory Opinion 2012–17 (m-Qube I).
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/10.svg)
![76426 Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules
paragraph (d), a payment processor will b. Proposed Revisions to Earmarking via the corporation’s Web site was not
satisfy the forwarding requirements of Rule, 11 CFR 110.6 a conduit. Id. at 5–6. The Commission
52 U.S.C. 30102(b) if it transmits funds FECA provides that, for purposes of explained that ‘‘certain electronic
and contributor information to a the contribution limitations, ‘‘all transactional services . . . do not run
recipient political committee within 10 contributions made by a person, either afoul of the prohibition on corporations
or 30 days, as applicable, of the directly or indirectly . . ., including acting as a conduit or intermediary for
contributor’s authorization of the contributions which are in any way earmarked contributions because certain
transaction. To ensure that a payment earmarked or otherwise directed electronic transactional services are so
processor does not make contributions through an intermediary or conduit to essential to the flow of modern
such candidate, shall be treated as commerce that they are akin to ‘delivery
to candidates and committees by
contributions from such person to such services, bill-paying services, or check
transmitting the funds, the payment
candidate.’’ 75 52 U.S.C. 30116(a)(8). writing services.’ ’’ Id. at 10 (citing
processor must meet this forwarding Advisory Opinion 2011–06 (Democracy
requirement in its ordinary course of The Commission defines ‘‘earmarked’’
to mean ‘‘a designation, instruction, or Engine)); see also Advisory Opinion
business. See, e.g., 11 CFR 116.3; 2014–07 (Crowdpac) (approving
Advisory Opinion 2012–26 (m-Qube II); encumbrance, whether direct or
indirect, express or implied, oral or commercial processor’s transmission of
Advisory Opinion 2012–31 (AT&T). contributions to candidates); ActBlue,
written, which results in all or any part
The proposal would thus reflect how of a contribution . . . being made to Comment at 5, sers.fec.gov/fosers/
modern transactions are conducted and . . . a clearly identified candidate.’’ 11 showpdf.htm?docid=297360 (stating
ensures that FECA’s forwarding CFR 110.6(b)(1). that without electronic payment
requirement is satisfied when Whether a person is a ‘‘conduit or processors, ‘‘committees would not be
contributors and political committees intermediary’’ turns on whether the able to raise campaign funds on the
make and receive contributions person ‘‘receives and forwards an Internet or by credit card at all’’).
earmarked contribution to a candidate.’’ The Commission now proposes to
electronically.74 See Advisory Opinion
11 CFR 110.6(b)(2). Persons prohibited revise § 110.6 to clarify the regulatory
2012–35 (Global Transaction Services
from making contributions and status of electronic payment processors
Group) at 4 (approving proposal where and bring the rule into line with the role
processor transmitted contributions to expenditures, however, are also
prohibited from being conduits or of ‘‘certain electronic transactional
political committees within ten days); services [that] are so essential to the
Advisory Opinion 2010–23 (CTIA I) at intermediaries. 11 CFR 110.6(b)(2)(ii).
Thus, because FECA prohibits flow of modern commerce.’’ Advisory
6–7 (rejecting proposal to process Opinion 2012–22 (skimmerhat) at 10.
corporations from making contributions
contributions by text message because, The Commission proposes to do so by
to candidate committees, see 52 U.S.C.
in part, contributions would not be exempting commercial payment
30118, a corporation generally may not
forwarded to recipient committees receive and forward earmarked processors from the definition of
within timeframe required by 52 U.S.C. contributions. ‘‘conduit or intermediary’’ in a proposed
30102(b) and 11 CFR 102.8). The Commission’s regulations new paragraph (F) of 11 CFR
Should the Commission adopt this provide for certain exceptions to this 110.6(b)(2)(i). The Commission is
approach? Is it consistent with how rule, see 11 CFR 110.6(b)(2)(i), but these proposing two alternative versions of
exceptions do not squarely apply to the new paragraph (F). Alternative A of
electronic transactions are conducted?
kinds of payment processors that the proposed paragraph 110.6(b)(2)(i)(F)
The Commission is not proposing
Commission has addressed in its recent would provide that a commercial
regulatory language to define ‘‘ordinary payment processor is any person whose
course of business’’ but expects that the advisory opinions regarding electronic
contributions. In some of these usual and normal business is to process
term would be construed consistently payments and who processes payments
with the definition of the same term in opinions, the Commission concluded
that the transactions were permissible to candidates and authorized
11 CFR 116.3(c), which looks to the committees in the ordinary course of
because the corporations that processed
vendor’s past practices, as well as the contributions were acting as business without exercising direction or
industry custom, to determine whether commercial vendors to the political control over the choice of the recipient
the vendor acted in the ordinary course committee.76 In other opinions, the candidate or authorized committee.
of business. Should the Commission Commission approved the transactions Alternative B of proposed
revise the proposed rule to reflect this under the rationale that the corporations § 110.6(b)(2)(i)(F) would differ only in
expectation? were providing services to the that Alternative B would not expressly
contributors.77 And in Advisory state that a commercial payment
74 In Advisory Opinion 2012–17 (m-Qube I), the
Opinion 2012–22 (skimmerhat), the processor operates without exercising
Commission approved a proposal to process Commission determined expressly that direction or control over the choice of
contributions made by text message, even though a for-profit corporation that processed the recipient candidate or authorized
the processor would provide funds to the recipient committee.
political committees before the contributors had
customers’ contributions to candidates
The Commission seeks comment on
paid their mobile phone bills. Id. at 10. The
75 Thus, earmarked contributions are ‘‘subject to the alternatives. Specifically, does
Commission explained that the transmitted funds
were extensions of credit in the ordinary course of the original contributors’ limits on contributions to Alternative A accurately reflect and
sradovich on DSK3GMQ082PROD with PROPOSALS2
business, ‘‘not contributions that [the processor] the candidate.’’ Affiliated Committees, Transfers, codify Commission determinations
Prohibited Contributions, Annual Contribution made in approving prior advisory
received and forwarded.’’ Id. at 7, 10. And because
Limitations and Earmarked Contributions, 54 FR
the forwarding requirements of 52 U.S.C. 30102(b) 34098, 34105 (Aug. 17, 1989). opinions regarding commercial payment
and 11 CFR 102.8 are triggered only upon the 76 See Advisory Opinion 2007–04 (Atlatl); processors? See, e.g., Advisory Opinion
receipt of a contribution—not when a vendor Advisory Opinion 2004–19 (DollarVote.org); see 2014–07 (Crowdpac) at 4. Does
extends credit—the payments ‘‘do not implicate the also Advisory Opinion 2012–09 (Points for
forwarding requirements.’’ Id. at 10. The
Alternative B accurately reflect and
Politics).
Commission’s rationale in that advisory opinion 77 See Advisory Opinion 2011–19 (GivingSphere);
codify Commission determinations that,
applied the existing regulations, which the Advisory Opinion 2011–06 (Democracy Engine); for example, ‘‘where a commercial
Commission here proposes to revise. Advisory Opinion 2006–08 (Brooks). vendor provides contribution processing
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/11.svg)
![Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules 76427
services to contributors, the Does the proposal provide sufficient 102.2(a)(1)(vi) (disclosure of campaign
contributions made through the guidance and clarity to the regulated depositories).
platform . . . are . . . direct community as to which persons are not The Commission is proposing to
contributions to the candidate . . . considered conduits and revise several regulations to address
made via a commercial processing intermediaries? Should the Commission issues related to the deposit into
service’’ and not earmarked bring § 110.6 in line with the flow of campaign depositories of contributions
contributions through a conduit or modern commerce by revising the made electronically. First, the
intermediary? Advisory Opinion 2016– definition of ‘‘earmarked’’ at 11 CFR Commission proposes to revise 11 CFR
08 (eBundler.com) at 8. Would the 110.6(b)(1) rather than revising the 103.3(a) to clarify the campaign
reference to ‘‘direction or control’’ in definition of ‘‘conduit or intermediary’’ depository requirements with respect to
Alternative A be clear in light of the use at 11 CFR 110.6(b)(2)? For example, joint merchant accounts. Second, the
of that term at § 110.6(d)? Would the should the Commission clarify that the Commission proposes to revise 11 CFR
omission of ‘‘direction or control’’ in definition of earmark does not generally 102.9(a)(4) and 9036.1(b)(4) to address
Alternative B be clear in light of include a contributor’s authorization to recordkeeping related to the electronic
Commission determinations made in initiate an electronic transaction? transfer of contributions from a payment
advisory opinions? Additionally, is existing guidance processor to a political committee’s
The Commission anticipates that sufficient with respect to how political campaign depository. Finally, the
specific applications of the exemption, committees should report contributions Commission is considering whether to
regardless of which Alternative is received via commercial payment revise 11 CFR 103.3(a) and 102.10 to
selected, will be informed by its prior processors? address how the requirements for
advisory opinions and refined through Furthermore, in addition to deposits to and disbursements from
future advisory opinions. The proposed concluding that commercial payment campaign depositories apply to
term ‘‘commercial payment processors’’ processors are not conduits under 11 contributions of internet-based
would not distinguish between persons alternative mediums of exchange, such
CFR 110.6, the Commission has also
who process contributions as a service as bitcoin.
determined that where a commercial
to contributors and those who process payment processor provides its services a. Proposed Changes Regarding
contributions as a service to candidates to its customers, as opposed to the Campaign Depositories for Joint
and authorized committees. Thus, the political committees that receive the Merchant Accounts—11 CFR 103.3
term would encompass processors that customers’ contributions, the processor
transmit funds from wireless service Many political committees and
itself would not make contributions to payment processors use merchant
providers to recipient committees, as the recipient political committees. See,
well as online payment systems such as accounts to process contributions. As
e.g., Advisory Opinion 2015–15 one commenter noted in response to the
PayPal and Square, and the requestors (WeSupportThat.com) at 4 (‘‘Identifying
in the advisory opinions in which the ANPRM: ‘‘In order to accept credit card
candidates whose activities are of contributions, the committee must have
Commission has approved electronic interest to its users, and processing
payment processing.78 The Commission a merchant account with the payment
users’ contributions to those candidates, processor which is connected to the
anticipates, however, that the are services that the requestor may
distinction will remain relevant to Web site on the contribution end and to
permissibly provide to its users.’’); a specific bank account on the
determine whether fees associated with Advisory Opinion 2014–07 (Crowdpac)
contributions made through commercial processing end.’’ ActBlue, Comment at
at 6 (‘‘Accordingly, Crowdpac’s 2, sers.fec.gov/fosers/
payment processors are considered part proposal to match users with candidates
of the contributed amount. As the showpdf.htm?docid=297360. The
and utilize the . . . platform to process commenter characterized the merchant
Commission has explained in several and forward users’ contributions to
advisory opinions, where a contributor’s account system that is used for payment
candidates would not result in transfers as ‘‘nothing but an accounting
payment of a fee would ‘‘relieve the impermissible contributions by
recipient political committee[ ] of a tool which operates purely as a pass-
Crowdpac to federal candidate through.’’ Id. at 4.
financial burden [it] would otherwise committees.’’). The Commission seeks Merchant accounts operated and
have had to pay,’’ the fee would be comment as to whether it should controlled by a payment processor may
considered a contribution. See, e.g., promulgate regulatory language that contain contributions for several
Advisory Opinion 2015–15 codifies these determinations, and if so, different political committees. See
(WeSupportThat.com) at 5 (quoting where in its regulations. Advisory Opinion 1995–34 (Politechs)
Advisory Opinion 2014–07 (Crowdpac)
n.6 (describing processing of
and Advisory Opinion 2011–06 3. When a Political Committee Deposits
contributions for multiple committees
(Democracy Engine)). the Contribution: Campaign
through one merchant account). The
The Commission intends the Depositories, Merchant Accounts,
Commission has indicated that a
proposed revision to 11 CFR Recordkeeping, and Internet-Based
political committee receiving funds
110.6(b)(2)(i) to clarify and codify its Alternative Mediums of Exchange
through one of these merchant accounts
existing guidance on the issue, and thus
Once a political committee has should report and treat the merchant
to encourage the use of evolving and
received a contribution, it must deposit account as a campaign depository
emerging technological innovations to
sradovich on DSK3GMQ082PROD with PROPOSALS2
that receipt in an account at a campaign account. Id.; see also Advisory Opinion
process contributions electronically.
depository within ten days. 52 U.S.C. 1999–22 (Aristotle Publishing)
78 Because the proposed clarification also does 30102(h)(1); 11 CFR 103.3(a). The (approving proposal under which
not turn on the incorporation status of a payment campaign depository must be a state recipient political committees would
processor, a limited liability company that opts to bank, federally chartered depository report payment processor’s FDIC-
be treated like a partnership for tax purposes could institution, or depository institution insured merchant account through
process contributions to candidates in the ordinary
course of business without being considered a
with accounts insured by certain federal which their contributions flowed as
conduit or intermediary. See Advisory Opinion agencies. See 52 U.S.C. 30102(h)(1); 11 campaign depository accounts);
2012–09 (Points for Politics). CFR 103.2; see also 11 CFR Advisory Opinion 2012–07 (Feinstein
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/12.svg)
![Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules 76429
time, the Commission is aware of no prior to disbursement.82 Should the of any portion of an anonymous ‘‘cash’’
institution that meets the statutory Commission revise 11 CFR 102.10 to contribution that exceeds $50.86
criteria of a campaign depository, see 52 specify that a disbursement need not be Some non-cash electronic payment
U.S.C. 30102(h), and that maintains made from a campaign depository if the methods—particularly prepaid cards
bitcoin wallet ‘‘accounts’’ for its asset being disbursed was not required and internet-based alternative mediums
customers. The Commission seeks to be deposited into a campaign of exchange—have characteristics very
comment as to whether the unique depository? The Commission seeks similar to cash. Like currency, prepaid
nature of bitcoin and other internet- comment on how best to reconcile an cards and some internet-based
based alternative mediums of exchange interpretation allowing the alternative mediums of exchange are
pose any potential challenges under disbursement of assets held outside easily transferable and relatively
FECA, such as achieving meaningful campaign depositories with the untraceable. They are not associated
disclosure, which necessitates statutory requirement that ‘‘[n]o with a depository institution and thus
regulatory amendment. disbursements may be made . . . except are not subject to those institutions’
Current Commission regulations by check drawn’’ on an account at a ‘‘know-your-customer’’ obligations
establish procedures for political campaign depository. See 52 U.S.C. under federal law.87 All that a person
committees to receive and report in- 30102(h)(1). needs to acquire and use prepaid cards
kind contributions of ‘‘stocks, bonds, art in amounts within FECA’s contribution
E. Other Considerations in Electronic
objects, and other similar items to be limits is sufficient cash to purchase the
Contributions and Disbursements
liquidated.’’ 11 CFR 104.13(b). Under cards. Similarly, ‘‘all that is needed to
The Commission is considering complete a [bitcoin] transaction is a
this provision, political committees may
revisions to other regulations to bitcoin address, which does not contain
accept such items as in-kind
modernize requirements concerning the any personal identifying
contributions and hold them as
receipt of ‘‘currency’’ and ‘‘cash’’; the information.’’ 88
investments outside of their campaign
receipt, disbursement, and transfer of Because prepaid cards present the
depositories until later sale, without
funds; the records of contributions same concerns as those noted by
being subject to the 10-day deposit
eligible for public matching funds; and Congress when it limited contributions
requirement. See Advisory Opinion
the designation and attribution of of currency to $100, the Commission
2000–30 (pac.com) at 8 (citing Advisory
contributions in light of electronic proposes to update its rules to apply the
Opinion 1989–06 (Friends of Sherwood
transactions and records. limitations on contributions of cash or
Boehlert) and Advisory Opinion 1980–
currency at 11 CFR 110.4(c) to
125 (Cogswell for Senate Committee 1. ‘‘Currency’’ and ‘‘Cash’’—11 CFR
contributions made by prepaid cards. To
1980)). 110.4
accomplish this, the Commission
The Commission is interested in The term ‘‘contribution’’ includes proposes to add paragraph (c)(4) to 11
comment on whether the inability to gifts, advances, and deposits of CFR 110.4 to clarify that a ‘‘cash
deposit bitcoin and other alternative ‘‘money’’ by any person for the purpose contribution’’ includes a contribution
mediums of exchange in a campaign of influencing a federal election.83 The (1) of currency of the United States or
depository necessitates treating term ‘‘money’’ includes ‘‘currency of the any foreign country, or (2) made using
contributions of such alternative United States or of any foreign nation,’’ a prepaid card. The Commission also
mediums of exchange as in-kind as well as checks, money orders, and proposes to make a conforming change
contributions rather than contributions any other negotiable instrument payable to 11 CFR 110.4(c)(1) by updating the
of money. Should the Commission on demand.84 current prohibition on making
revise 11 CFR 103.3 to clarify that all The legislative history of FECA contributions aggregating more than
receipts by a political committee must indicates that Congress was particularly $100 in ‘‘currency of the United States,
be deposited in campaign depositories, concerned about the role of cash in or of any foreign country’’ to apply to
except for in-kind contributions that federal elections. As one legislator any ‘‘cash contribution,’’ as provided in
cannot be deposited? The Commission noted, ‘‘cash offers too facile a medium proposed 11 CFR 110.4(c)(4).
seeks comment on how best to reconcile for unethical and illegal activities’’; its The Commission intends the term
an interpretation allowing in-kind ‘‘untraceability’’ and ‘‘easy ‘‘prepaid card’’ to mean a card, payment
contributions to not be deposited in a transferability’’ were of particular code, or device that is not linked to the
campaign depository with FECA’s concern. 120 Cong. Rec. H7832 (daily contributor’s checking, savings, or other
requirement that ‘‘all receipts . . . shall ed. Aug. 7, 1974) (statement of Rep. depository account but is instead
be deposited’’ in an account at a Boland). Thus, Congress limited purchased or loaded on a prepaid basis
campaign depository. See 52 U.S.C. contributions of currency to $100. 52 and honored, upon presentation, by
30102(h)(1). U.S.C. 30123.85 Commission regulations merchants for goods or services, or at
Related to the question of whether in- also prohibit the use in federal elections automated teller machines, as provided
kind receipts must be deposited in a in federal electronic transfer consumer
82 Compare Advisory Opinion 1982–08 (Barter
campaign depository is the question of rights protection laws. See 15 U.S.C.
PAC) (allowing disbursement of ‘‘credit units’’ in
how to interpret the statutory that form), with Advisory Opinion 2000–30
1693l–1(a)(2)(A). The Commission seeks
requirement that all disbursements be (pac.com) (requiring liquidation and deposit prior comment on whether it should define
made from a campaign depository. The to disbursement).
sradovich on DSK3GMQ082PROD with PROPOSALS2
83 52 U.S.C. 30101(8)(A)(i); 11 CFR 100.52(a); see 86 11 CFR 110.4(c)(3); see also 52 U.S.C.
Commission has reached differing
also 52 U.S.C. 30101(9)(A)(i); 11 CFR 100.111(a) 30102(c)(2) (requiring name and address of
conclusions in advisory opinions on (corresponding provisions for the term contributors for contributions over $50).
whether in-kind contributions received ‘‘expenditure’’). 87 See, e.g., 31 CFR 1020.220(a) (setting forth
and held outside of a campaign 84 11 CFR 100.52(c); see also 11 CFR 100.111(d) customer identification programs for banks, credit
depository may be disbursed from (corresponding provision for expenditures). unions, and other depository institutions, including
outside of that depository or whether 85 See also 11 CFR 110.4(c) (also referring to such through records of customer names and addresses).
contributions as ‘‘cash’’), 9034.3(j) (disallowing 88 U.S. Gov’t Accountability Office, GAO–13–516,
they must first be liquidated and matching funds for contributions of currency of Virtual Economies and Currencies 8 (2013),
deposited in a campaign depository United States or foreign country). available at gao.gov/assets/660/654620.pdf.
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/14.svg)
![Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules 76431
corporate drawing account of the 110.6(c)(1)(v) to address reporting Because § 9034.2(b) and (c) require
individual contributor.’’ 11 CFR requirements for them? publicly funded candidates to retain the
102.6(c)(3). In Advisory Opinion 1990– card number for each contribution by
3. Electronic Contributions to Publicly
04 (American Veterinary Medical credit or debit card, some committees
Funded Committees
Association PAC), the Commission have historically viewed these
interpreted this provision as allowing a The Funding Acts allow public fund regulations as inconsistent with
combined payment by credit card. matching only for contributions ‘‘made payment industry security practices and
Consistent with the approach in that by a written instrument which identifies requirements. Accordingly, and in
advisory opinion, and because of the the person making the contribution by recognition of the security risks that are
increasing use of electronic payments, full name and mailing address.’’ 26 attendant upon storing credit card
the Commission proposes to revise 11 U.S.C. 9034(a). The Commission numbers, the Commission proposes to
CFR 102.6(c)(3) to enable contributors to proposes to revise 11 CFR 9034.2, which revise 11 CFR 9034.2(b) and (c) by
make combined payments to an SSF by currently defines ‘‘written instrument’’ removing the requirements that the
credit card or electronic payment, as in this context to include contributions recipient must retain contributors’ debit
well as by check. The combined by credit and debit card—but not when and credit card numbers to be eligible
payment would still have to be made made over the telephone—to a for matching funds. All of the
from the contributor’s personal account, participant in the primary matching regulation’s other requirements would
irrespective of whether made by check fund program.96 Section 9034.2(b) remain in effect, including the
or electronically, or through a payroll- allows a political committee to receive requirements that the recipient collect
deduction plan.95 As proposed, the rule matching funds for contributions by the full name and mailing address of
would retain the reference to ‘‘a non- credit card made over the internet only each contributor and maintain a ‘‘record
repayable corporate drawing account of if the electronic record of that that can be reproduced on paper’’ of
the individual,’’ because the transaction includes ‘‘the name of the each electronic contribution. Would
Commission wants to retain the cardholder and the card number, which § 9034.2, as revised, provide the
clarification that such accounts are, for can be maintained electronically and necessary level of assurance that a credit
purposes of 11 CFR 102.6(c)(3), reproduced in a written form.’’ And or debit card contribution made over the
‘‘personal accounts.’’ § 9034.2(c) requires the contribution to internet is eligible for matching funds?
Second, the Commission proposes to also contain the contributor’s Should the Commission also revise 11
revise 11 CFR 114.6(d)(2)(iii), which ‘‘signature,’’ which is defined for these CFR 9034.2(c)(8)(i), which prohibits
requires the custodian of an SSF to purposes to be ‘‘either an actual public fund matching of credit and debit
forward to the SSF funds from certain signature . . . or in the case of such a card contributions ‘‘where the
separate accounts ‘‘by check drawn on’’ contribution made over the Internet, the cardholder’s name and card number are
such accounts. Consistent with the full name and card number of the given . . . only orally’’? When
proposed revisions concerning cardholder who is the donor, entered § 9034.2(c) was first adopted, the
disbursements from campaign and transmitted by the cardholder.’’ Commission explained the exclusion of
depositories, the Commission proposes Comments received on the ANPRM credit card ‘‘signatures’’ made over the
to revise 11 CFR 114.6(d)(2)(iii) to allow urged the Commission to bring the telephone as consistent with the
such funds to be forwarded ‘‘by check requirement that committees maintain ‘‘written instrument’’ limitation on the
or similar draft, including electronic the full card number of contributors in definition of ‘‘contribution’’ in 26 U.S.C.
transfer.’’ line with payment industry security 9034(a).99 Could an electronic record of
d. Electronic Transfers of Earmarked standards.97 Payment industry a credit or debit card contribution
Contributions standards limit the storage and retention authorized orally—such as an audio
of payment card information in order to recording of the authorization—
The Commission seeks comment on constitute a ‘‘written instrument’’ under
safeguard consumers and the payment
whether it should revise 11 CFR the Funding Acts, 26 U.S.C. 9034(a)? Cf.
system from fraud. Visa, Comment at 2,
110.6(c)(1)(v) to address a conduit or Advisory Opinion 2013–12 (Service
sers.fec.gov/fosers/
intermediary’s electronic forwarding of Employees International Union COPE)
showpdf.htm?docid=297361.
an earmarked contribution. Section (noting that ‘‘a telephone-based
Specifically, entities may not store the
110.6(c)(1)(v) sets forth the mechanisms authorization system that included
three-digit code printed on the back of
for reporting two categories of computer-based (and retrievable)
payment cards and must render
earmarked contributions: those that pass records’’ could ‘‘incorporate[ ]
unreadable (by truncation, hashing, or
through a conduit or intermediary’s procedural safeguards and
encryption) the card number and
account, and those that the conduit or recordkeeping mechanisms equivalent
expiration date where that information
intermediary forwards to a committee to . . . a handwritten signature on a
is stored.98
‘‘in the form of a contributor’s check or paper document’’ (internal quotations
other written instrument’’ without first 96 See 11 CFR 9034.2(c)(8) (permitting matching omitted)). If so, should the Commission
depositing them in the conduit’s or of credit and debit card contributions by written revise 11 CFR 9034.2 to permit public
intermediary’s account. The regulation instrument as set forth in 11 CFR 9034.2(b) and (c), fund matching of these credit and debit
thus does not currently address but not credit or debit card contributions made card contributions?
earmarked contributions that the orally).
Finally, the Commission proposes to
sradovich on DSK3GMQ082PROD with PROPOSALS2
97 See ActBlue, Comment at 2, sers.fec.gov/fosers/
conduit or intermediary forwards showpdf.htm?docid=297360; Perkins Coie, revise 11 CFR 9036.2(b)(1)(iii), which
electronically without those funds first Comment at 2, sers.fec.gov/fosers/ requires committees to provide the
passing through the conduit or showpdf.htm?docid=297359; Visa, Comment at 1–3, Commission with a list of contribution
intermediary’s account. Do such sers.fec.gov/fosers/showpdf.htm?docid=297361.
98 Id. at 2–3; see also Michael J. de la Merced, The
‘‘checks returned unpaid’’ (i.e.,
transactions occur? If so, then how ‘‘bounced’’). The Commission proposes
Credit Card of Tomorrow: Software, Not Plastic,
should the Commission amend 11 CFR N.Y. Times, Apr. 1, 2014, http://
dealbook.nytimes.com/2014/04/01/the-credit-card- 99 See Matching Credit Card and Debit Card
95 See
11 CFR 102.6(c)(3) (describing combined of-tomorrow-software-not-plastic (discussing Contributions in Presidential Campaigns, 64 FR
payments under payroll deduction plan). tokenization and credit card security measures). 32394, 32395–96 (June 17, 1999).
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/16.svg)
![Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules 76433
definitions of ‘‘direct mail’’ be revised to to reduce the fee for document ‘‘programming . . . computers’’ to
explicitly account for electronic certification; remove from 11 CFR address envelopes or labels, 11 CFR
mailings or mailing lists? 4.9(c)(4) and 5.6(a) the fees for 114.5(k)(2). Are these provisions
‘‘microfilm reader-printer’’ and outdated, such that they should be
2. Microfilm and Obsolete Computer
‘‘microfilm-paper’’ copies, ‘‘reels of revised?
References
microfilm,’’ publications, computer
The Commission proposes to remove 3. Web Sites
tapes and indexes, professional research
most references to ‘‘microfilm,’’ time, and transcripts;102 remove the The Commission is considering
‘‘computer tape,’’ ‘‘magnetic tape,’’ and specified staff charges from § 4.9(c)(4) whether to revise certain regulatory
similar terms from the regulations and add a provision to charge the references to ‘‘Web sites’’ to
because these technologies are, for most ‘‘direct costs,’’ including staff and accommodate newer technologies—such
purposes, obsolete. These references are digital storage devices on which records as mobile applications (‘‘apps’’) on
largely found in the rules implementing are produced; remove from 11 CFR smartphones and tablets, smart TV,
the Funding Acts, FOIA, the Privacy 5.6(a) the fees for professional ‘‘research interactive gaming dashboards, e-book
Act, and the Commission’s Public time/photocopying time’’; remove 11 readers, and wearable network-enabled
Disclosure Division. Specifically, the CFR 5.6(b), which establishes fees for devices such as smartwatches or
Commission proposes to make the providing Commission publications; headsets—that have taken many of the
following revisions, none of which is and remove from 11 CFR 5.6(c) the same roles and characteristics that the
intended to be substantive: reference to use of a contractor for Commission previously ascribed to Web
• Remove the references to microfilm and computer tape sites.
‘‘microform,’’ ‘‘computer tape or duplication. The Commission also First, the Commission proposes to
microfilm,’’ ‘‘computerized,’’ and proposes to make a conforming revision update the definition of ‘‘public
‘‘Computerized Magnetic Media to 11 CFR 112.2(b) by including a communication’’ in 11 CFR 100.26,
Requirements’’ in 11 CFR 4.1(j) reference to the Commission’s Web site which currently refers to
(presenting non-exhaustive list of forms in conjunction with an existing communications placed for fee on
of FOIA copies), 4.9(c)(5) (FOIA fees), reference to the Public Disclosure another person’s ‘‘Web site.’’ 103 When
9007.1(b)(1) (public finance audits), Division. The Commission welcomes the Commission defined ‘‘public
9036.2(b)(1)(vi) (public fund submission comment on the proposed revisions. communication’’ in 2006 to include
procedures), and 9038.1(b)(1) (audit The Commission seeks comment on paid internet advertisements on Web
procedures); two parallel provisions concerning sites, it analogized such advertisements
• replace references to ‘‘machine accommodations for the hearing to the other forms of mass
readable documentation,’’ ‘‘magnetic impaired in television commercials communication enumerated in FECA’s
tape or disk,’’ ‘‘computer disk,’’ prepared and distributed by publicly definition of ‘‘public communication’’—
‘‘magnetic tapes or magnetic diskettes,’’ financed candidates. The Funding Acts such as television, radio, and
and ‘‘computerized magnetic media’’ require such candidates to certify that newspapers—because ‘‘each lends itself
with ‘‘digital storage device’’ in 11 CFR any television advertisement ‘‘contains to distribution of content through an
4.1(j) (non-exhaustive list of forms of or is accompanied by closed captioning entity ordinarily owned or controlled by
FOIA copies), 4.9(a)(3) (FOIA fees), of the oral content of the commercial to another person.’’ Internet
9003.1(b)(4) (public fund eligibility be broadcast in line 21 of the vertical Communications, 71 FR 18589, 18594
conditions), 9003.6(a) (same), blanking interval, or is capable of being (Apr. 12, 2006); 52 U.S.C. 30101(22).
9033.1(b)(5) (same), 9033.12(a) (same), viewed by deaf and hearing impaired The Commission focused on Web sites
and 9036.1(b)(2) (same); individuals via any comparable because that was the predominant
• replace references to a successor technology to line 21 of the means of paid internet advertising in
‘‘microfilmed copy’’ and ‘‘photocopy’’ vertical blanking interval.’’ 26 U.S.C. 2006.104 The proposed revision would
with ‘‘copy’’ in 11 CFR 105.5(a) and (b); 9003(e). Commission regulations update § 100.26 to refer to an ‘‘internet-
• delete 11 CFR 9003.6(b) and implement this requirement essentially enabled device or application,’’ thereby
9033.12(b), which concern the verbatim at 11 CFR 9003.1(b)(10) and reflecting subsequent changes in
organization of computer information 9033.1(b)(12). Is there a ‘‘successor internet technology 105 and rendering
according to technical specifications of technology’’ that the Commission
a computer system the Commission no should now recognize in these 103 The definition of ‘‘public communication’’ is
longer uses; provisions? Are there other technologies relevant to the application of certain disclaimer
• replace ‘‘computers’’ with that might not apply to traditional requirements, 11 CFR 110.11(a), coordination rules,
11 CFR 109.21(c), and financing limitations, e.g., 11
‘‘computers or other electronic devices’’ broadcast television but are used for CFR 100.24(b)(3), 300.32(a)(1)–(2), 300.71.
in 11 CFR 9004.6(a)(1) and 9034.6(a)(1); cable, satellite, or internet-based 104 Even in the 2006 rulemaking, the Commission
and television (e.g., Hulu or Netflix)? stated, albeit in a different context, that the ‘‘terms
• replace ‘‘either solely in magnetic Finally, the Commission seeks ‘Web site’ and ‘any Internet or electronic
media from or in both printed and comment on other regulatory references publication’ are meant to encompass a wide range
of existing and developing technology, such as Web
magnetic media forms’’ with ‘‘in printed to specific technologies: ‘‘computer sites, ‘podcasts,’ etc.’’ Internet Communications, 71
or digital form or a combination of column codes [and] the extent of FR at 18608 n.52 (citing 2005 testimony
printed and digital forms’’ in 11 CFR computer tabulations’’ of polling data, enumerating variety of ‘‘Internet communication
sradovich on DSK3GMQ082PROD with PROPOSALS2
9036.2(b)(1)(ii). 11 CFR 106.4(e)(1); software that is technologies,’’ including instant messaging,
The Commission also proposes to ‘‘Internet Relay Chat,’’ social networking software,
‘‘provided or approved by the and widgets).
revise and simplify the fee structures at Commission,’’ see 11 CFR 102.5(a)(3)(ii), 105 See Amy Schatz, In Hot Pursuit of the Digital
11 CFR 4.9 and 5.6, which concern fees 106.7(b), 300.30(c)(3)(ii); and Voter, Wall St. J., Mar. 23, 2012, www.wsj.com/
for FOIA and Public Disclosure. articles/SB100014240527023038129045772
Specifically, the Commission proposes 102 The Commission is not proposing to change 99820064048072 (showing screenshots of 2012
regulatory references to microfilm that relate to presidential committee advertisements on Hulu and
to remove 11 CFR 4.9(a)(2) (imposing older Commission records that are unavailable in noting another campaign’s purchase of
$25 per hour computer access FOIA other forms. See, e.g., 11 CFR 5.6(a)(1) (establishing advertisements on Pandora internet radio); Tanzina
fee); revise 11 CFR 4.9(c)(4) and 5.6(a) fee for making paper copies from microfilm). Continued
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/18.svg)
![76434 Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules
the regulatory text more adaptable to the the time. To update the now-outdated practical or legal reason to include one
development of as-yet unknown future terminology in this provision, the in the definition of ‘‘federal election
technologies. Commission proposes to revise it to activity’’ while excluding the other? Is
The Commission seeks comment on refer to political committees’ ‘‘Web sites the proposed revision sufficiently
this proposal. Is there any basis in law and internet applications.’’ The flexible for the de minimis exception to
or fact to distinguish between paid Web Commission welcomes comment on this be applied to evolving technologies
site advertising and other paid internet proposal, including on whether there where appropriate without further
advertising for purposes of the are terms other than ‘‘Web sites’’ and textual revision?
definition of ‘‘public communication’’? ‘‘applications’’ that may be better able to Finally, the Commission is proposing
Is the term ‘‘internet-enabled device or adapt to changing technological to revise references to ‘‘World Wide
application’’ sufficiently clear and platforms of political committees. Is Web site,’’ ‘‘Web site’’ or ‘‘Web site’’ to
technically accurate, or is there a better there a legal or factual basis for read ‘‘Web site’’ in 11 CFR 4.4(g),
way to refer to the various media distinguishing between political 100.29(b)(6)(i) and (ii), 100.73,
through which paid internet committees’ public Web sites and their 100.94(b), 100.132, 102.2(a)(1)(vii),
communications can be sent and public apps for purposes of FECA’s 104.22(b)(2)(i) and (ii), 110.1(c)(1)(iii),
received? Would providing examples of disclaimer provisions? Do political 110.2(e)(2), and 110.17(e)(1) and (2);
such paid media be helpful? committees have other devices or ‘‘Internet Web site’’ to read ‘‘Web site’’
Second, the Commission proposes to platforms for disseminating internet in 11 CFR 104.22(a)(6)(ii)(A)(2); ‘‘World
update the disclaimer provision in 11 content comparable to Web sites and Wide Web address’’ to read ‘‘Web site
CFR 110.11, which currently refers to apps in modern campaigning? address’’ in 11 CFR 110.11(b)(3); and
political committees’ ‘‘Internet Web Third, the Commission is proposing ‘‘Web address’’ and ‘‘Web page’’ to read
sites’’ that are available to the general to update the definition of ‘‘federal ‘‘Web site address’’ and ‘‘Web page’’ in
public. 11 CFR 110.11(a)(1).106 When election activity’’ to exclude de minimis 11 CFR 300.2(m)(1)(iii). As with the
the Commission revised the disclaimer costs incurred by a state, district, or other terminological updates discussed
requirements in 2002 to apply to local party committee for certain above, none of these proposed revisions
political committees’ Web sites, it noted activities associated with apps. 11 CFR is intended to effect a substantive
‘‘the widespread use of this technology 100.24. Currently, the definition of change in the regulations. Would the
in modern campaigning, and the ‘‘federal election activity’’ excludes de proposed revisions modernize the
relatively nonintrusive nature of minimis costs associated with posting regulatory language in a useful way?
disclaimer requirements.’’ Disclaimers, certain general voting information on
Fraudulent Solicitation, Civil Penalties, G. Other Electronic Modernization
the ‘‘Web site’’ of a state, district, or Issues
and Personal Use of Campaign Funds, local party committee or association of
67 FR 76962, 76964 (Dec. 13, 2002). state or local candidates. 11 CFR In addition to inviting comment,
Disclaimers on political committee Web 100.24(c)(7)(i) through (iii). When the including pertinent data, on the issues
sites, the Commission stated, ‘‘will Commission adopted these exclusions raised in this document, the
assure, for example, that a Web site in 2010, it recognized the Commission welcomes comment and
created and paid for by an individual ‘‘administrative complexities’’ that state, data on any technological
will not have to include a disclaimer’’ district, and local party committees and modernization issues that are not
while the ‘‘use of . . . Web sites to associations of state and local addressed in this document and that
conduct campaign activity will have to candidates would face in tracking the relate to the Commission’s regulations
provide the public notice of who is ‘‘nominal, incidental’’ costs of the implementing FECA, the Funding Acts,
responsible.’’ Id. As noted in the enumerated activities. See Definition of or other statutes that the Commission is
discussion of ‘‘public communication’’ Federal Election Activity, 75 FR 55257, charged with implementing.
above, the Commission used the term 55265 (Sept. 10, 2010). The Commission
‘‘Web site’’ here because that was the Certification of No Effect Pursuant to 5
also recognized that many of these
predominant means of public U.S.C. 605(b) (Regulatory Flexibility
activities did not involve any costs and,
‘‘campaign activity’’ on the internet at Act)
for those that did, the costs would be
‘‘so small that—even aggregated over a The Commission certifies that the
Vega, The Next Political Battleground: Your Phone, long period of time—they would not attached proposed rules, if adopted,
CNN, May 29, 2015, www.cnn.com/2015/05/29/
politics/2016-presidential-campaigns-mobile-tech result in any meaningful evasion of would not have a significant economic
nology (noting that ‘‘voters should expect more BCRA’s soft money restrictions.’’ Id. The impact on a substantial number of small
political ads as they scroll through their phones Commission proposes now to update 11 entities. The proposed rules would
next year—much as they’ll be bombarded with ads CFR 100.24(c)(7) by providing that the clarify and update existing regulatory
on television,’’ including ads using geolocation to
‘‘target[] potential voters who may have de minimis exception also applies to the language, codify certain existing
downloaded the candidate’s app’’). Indeed, a recent same enumerated activities when Commission precedent regarding
study has shown that 19% of Americans access the conducted via internet apps of state, electronic transactions and
internet exclusively or mostly through their district, and local party committees and communications, and provide political
smartphones as opposed to desktop or laptop
computers. See Pew Research Ctr., U.S. Smartphone associations of state and local committees and other entities with more
Use in 2015, at 3 (2015), www.pewinternet.org/files/ candidates. The Commission believes flexibility in meeting FECA’s
sradovich on DSK3GMQ082PROD with PROPOSALS2
2015/03/PI_Smartphones_0401151.pdf. that the reasons for excluding this recordkeeping and filing requirements.
106 Issues concerning the substantive disclaimer
activity from the definition of federal The proposed rules would not impose
requirements for electronic communications, such
as modifications of or exemptions from disclaimer
election activity when conducted on a new recordkeeping, reporting, or
requirements for certain internet communications, party committee’s Web site—i.e., its de financial obligations on political
are outside the scope of this rulemaking. They may minimis incremental cost and the committees or commercial vendors. The
be addressed in a separate rulemaking. See Internet administrative difficulty of determining Commission therefore certifies that the
Communication Disclaimers, 76 FR 63567; see also
supra note 40. To review and comment on
such cost—apply equally to making the proposed rules, if adopted, would not
documents on that subject, visit http://www.fec.gov/ specified information available on a have a significant economic impact on
fosers, reference REG 2011–02. party committee’s app. Is there any a substantial number of small entities.
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/19.svg)
![Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules 76435
List of Subjects 11 CFR Part 112 Commission proposes to amend 11 CFR
Administrative practice and chapter I as follows:
11 CFR Part 1
procedure, Elections.
Privacy. PART 1—PRIVACY ACT
11 CFR Part 114
11 CFR Part 2 ■ 1. The authority citation for part 1
Business and industry, Elections, continues to read as follows:
Sunshine Act. Labor.
Authority: 5 U.S.C. 552a.
11 CFR Part 4 11 CFR Part 116
§ 1.3 [Amended]
Freedom of information. Administrative practice and
procedure, Business and industry, ■ 2. Amend paragraph (b) of § 1.3 by
11 CFR Part 5 Credit, Elections, Political candidates, removing ‘‘request assistance by mail or
Political committees and parties. in person from the Chief Privacy Officer,
Archives and records. Federal Election Commission, 999 E
11 CFR Part 6 11 CFR Part 200 Street NW., Washington, DC 20463
Administrative practice and during the hours of 9 a.m. to 5:30 p.m.’’
Civil rights, Individuals with and adding in its place ‘‘request
disabilities. procedure.
assistance in person from the Chief
11 CFR Part 7 11 CFR Part 201 Privacy Officer during the hours of 9
Administrative practice and a.m. to 5:30 p.m. or file a request for
Administrative practice and procedure. assistance, addressed to the Chief
procedure, Conflict of interests. Privacy Officer, pursuant to 11 CFR
11 CFR Part 300
11 CFR Part 100 100.19(g).’’
Campaign funds, Nonprofit
Elections. organizations, Political committees and § 1.4 [Amended]
11 CFR Part 102 parties, Political candidates, Reporting ■ 3. Amend paragraph (a) of § 1.4 by
and recordkeeping requirements. removing ‘‘made at the Federal Election
Political committees and parties, Commission, 999 E Street NW.,
Reporting and recordkeeping 11 CFR Part 9002
Washington, DC 20463 and to the
requirements. Campaign funds. system manager identified in the notice
11 CFR Part 103 11 CFR Part 9003 describing the systems of records, either
in writing or in person’’ and adding in
Banks and banking, Campaign funds, Campaign funds, Reporting and its place ‘‘addressed to the system
Political committees and parties, recordkeeping requirements. manager identified in the notice
Reporting and recordkeeping 11 CFR Part 9004 describing the systems of records, either
requirements. in person or by filing the request
Campaign funds.
11 CFR Part 104 pursuant to 11 CFR 100.19(g)’’.
11 CFR Part 9007
Campaign funds, Political committees Administrative practice and PART 2—SUNSHINE REGULATIONS;
and parties, Reporting and procedure, Campaign funds. MEETINGS
recordkeeping requirements. ■ 4. The authority citation for part 2
11 CFR Part 9032
11 CFR Part 105 continues to read as follows:
Campaign funds.
Campaign funds, Political candidates, Authority: 5 U.S.C. 552b.
Political committees and parties, 11 CFR Part 9033
§ 2.2 [Amended]
Reporting and recordkeeping Campaign funds, Reporting and
■ 5. Amend § 2.2(a) by removing ‘‘, 999
requirements. recordkeeping requirements.
E Street NW., Washington, DC 20463’’.
11 CFR Part 106 11 CFR Part 9034
PART 4—PUBLIC RECORDS AND THE
Campaign funds, Political committees Campaign funds, Reporting and
FREEDOM OF INFORMATION ACT
and parties, Reporting and recordkeeping requirements.
recordkeeping requirements. ■ 6. The authority citation for part 4
11 CFR Part 9035
continues to read as follows:
11 CFR Part 108 Campaign funds, Reporting and
Authority: 5 U.S.C. 552, as amended.
recordkeeping requirements.
Elections, Reporting and
recordkeeping requirements. 11 CFR Part 9036 § 4.1 [Amended]
■ 7. Amend § 4.1(j) as follows:
11 CFR Part 109 Administrative practice and ■ a. Remove ‘‘microform,’’; and
procedure, Campaign funds, Reporting ■ b. Remove ‘‘machine readable
Coordinated and independent and recordkeeping requirements.
expenditures. documentation (e.g., magnetic tape or
11 CFR Part 9038 disk)’’ and add in its place ‘‘digital
sradovich on DSK3GMQ082PROD with PROPOSALS2
11 CFR Part 110 storage device’’.
Administrative practice and
Campaign funds, Political committees procedure, Campaign funds. § 4.4 [Amended]
and parties. ■ 8. Amend § 4.4(g) by removing
11 CFR Part 9039
11 CFR Part 111 ‘‘World Wide Web site’’ and adding in
Campaign funds, Reporting and its place ‘‘Web site’’.
Administrative practice and recordkeeping requirements.
procedure, Elections, Law enforcement, For the reasons set out in the § 4.5 [Amended]
Penalties. preamble, the Federal Election ■ 9. Amend § 4.5 as follows:
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/20.svg)
![76436 Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules
■ a. In paragraph (a)(4)(i), remove records requested. When a request for and the staff time expended in fulfilling
‘‘addressed to the Chief FOIA Officer, special mailing or delivery services is the particular request.
Federal Election Commission, 999 E received the Commission will package (b) In the event the anticipated fees
Street NW., Washington, DC 20463, and the records requested. The requestor for all pending requests from the same
shall indicate clearly on the envelope’’ shall make all arrangements for pick-up requester exceed $25.00, records will
and add in its place ‘‘addressed to the and delivery of the requested materials. not be searched, nor copies furnished,
Chief FOIA Officer and filed pursuant to The requestor shall pay all costs until the requester pays, or makes
11 CFR 100.19(g), and shall indicate associated with special mailing or acceptable arrangements to pay, the
clearly on the envelope or subject line, delivery services directly to the courier total amount due. If any fee is not
or in a similarly prominent location,’’; or mail service. precisely ascertainable, an estimate will
and (5) The Commission will advise the be made by the Commission and the
■ b. In paragraph (a)(4)(iv), remove requestor of the identity of any private requester will be required to forward the
‘‘addressed to the Chief FOIA Officer, contractor who will perform the fee so estimated. In the event any
Federal Election Commission, 999 E duplication services. If fees are charged advance payment differs from the actual
Street NW., Washington, DC 20463’’ and for such services, they shall be made fee, an appropriate adjustment will be
add in its place ‘‘addressed to the Chief payable to that private contractor and made at the time the copies are made
FOIA Officer and filed pursuant to 11 shall be forwarded to the Commission. available by the Commission.
CFR 100.19(g)’’. * * * * * * * * * *
§ 4.7 [Amended] PART 6—ENFORCEMENT OF
PART 5—ACCESS TO PUBLIC
■ 10. Amend paragraph (b)(1) of § 4.7 by DISCLOSURE DIVISION DOCUMENTS NONDISCRIMINATION ON THE BASIS
removing ‘‘addressed to Chief FOIA OF HANDICAP IN PROGRAMS OR
Officer, Federal Election Commission, ■ 13. The authority citation for part 5 ACTIVITIES CONDUCTED BY THE
999 E Street NW., Washington, DC continues to read as follows: FEDERAL ELECTION COMMISSION
20463’’ and adding in its place Authority: 52 U.S.C. 30108(d),
‘‘addressed to the Chief FOIA Officer 30109(a)(4)(B)(ii), 30111(a); 31 U.S.C. 9701.
■ 17. The authority citation for part 6
and filed pursuant to 11 CFR 100.19(g)’’. continues to read as follows:
§ 5.4 [Amended] Authority: 29 U.S.C. 794.
§ 4.8 [Amended] ■ 14. Amend § 5.4(a)(5) by removing
■ 11. Amend § 4.8 as follows: ‘‘Letter requests’’ and adding in its place § 6.103 [Amended]
■ a. In paragraph (b), remove ‘‘envelope ‘‘Requests’’. ■ 18. Amend § 6.103(b) by removing ‘‘,
or other cover and at the top of the first 999 E Street NW., Washington, DC
page’’ and add in its place ‘‘envelope or § 5.5 [Amended] 20463’’.
subject line, or in a similarly prominent ■ 15. Amend § 5.5 as follows:
§ 6.170 [Amended]
location,’’; and ■ a. In paragraph (a), remove ‘‘mail’’ and
■ b. In paragraph (c), remove ‘‘delivered add in its place ‘‘filing a request ■ 19. Amend § 6.170 as follows:
pursuant to 11 CFR 100.19(g)’’; and ■ a. In paragraph (d)(3), remove ‘‘filed
or addressed to the Chief FOIA Officer,
■ b. In paragraph (c), remove
under this part shall be addressed to the
Federal Election Commission, 999 E
‘‘addressed to the Chief FOIA Officer, Rehabilitation Act Officer, 999 E Street
Street NW., Washington, DC 20463’’ and
Federal Election Commission, 999 E NW., Washington, DC 20463’’ and add
add in its place ‘‘addressed to the Chief
Street NW., Washington, DC 20463’’ and in its place ‘‘under this part shall be
FOIA Officer and filed pursuant to 11
add in its place ‘‘addressed to the Chief addressed to the Rehabilitation Act
CFR 100.19(g)’’.
FOIA Officer and filed pursuant to 11 Officer and filed pursuant to 11 CFR
■ 12. Amend § 4.9 as follows:
CFR 100.19(g)’’. 100.19(g)’’;
■ a. Remove paragraph (a)(2);
■ b. In paragraph (g), remove ‘‘in a letter
■ b. Redesignate paragraphs (a)(3) and ■ 16. Amend § 5.6 as follows:
containing’’ and add in its place ‘‘in
(4) as paragraphs (a)(2) and (3), ■ a. Revise paragraph (a);
writing. This notification will contain’’;
respectively; ■ b. Remove paragraph (b);
■ c. In paragraph (h), remove ‘‘letter’’
■ c. In newly redesignated paragraph ■ c. Redesignate paragraphs (c) and (d)
and add in its place ‘‘notification’’; and
(a)(2), remove ‘‘computer disks’’ and as paragraphs (b) and (c), respectively; ■ d. In paragraph (i), remove ‘‘, Federal
add in its place ‘‘digital storage and Election Commission, 999 E Street,
devices’’; and ■ d. Revise newly redesignated NW., Washington, DC 20463’’ and add
■ d. Revise paragraphs (c)(4) and (5). paragraph (b). in its place ‘‘and filed pursuant to 11
The revisions read as follows: The revisions read as follows: CFR 100.19(g)’’.
§ 4.9 Fees. § 5.6 Fees.
PART 7—STANDARDS OF CONDUCT
* * * * * (a) Fees may be charged for copies of
(c) * * * records which are furnished to a ■ 20. The authority citation for part 7
(4) For a paper photocopy of a record, requester under this part and for the continues to read as follows:
the fee will be $.07 per page, which has staff time spent in locating and Authority: 52 U.S.C. 30106, 30107, and
been calculated to include staff time. reproducing such records at the rate of 30111; 5 U.S.C. 7321 et seq. and app. 3.
sradovich on DSK3GMQ082PROD with PROPOSALS2
For other forms of duplication, $.05 per page for paper copies,
§ 7.2 [Amended]
including copies produced by computer, including paper copies from microfilm;
the Commission will charge the direct $4.50 per half hour of staff time after the ■ 21. Amend § 7.2(a) by removing ‘‘, 999
costs, including staff time and the actual first half hour; and $7.50 for E Street NW., Washington, DC 20463’’.
cost of any digital storage device certification of a document. Such fees
PART 100—SCOPE AND DEFINITIONS
provided. The Commission will charge shall not exceed the Commission’s
(52 U.S.C. 30101)
$7.50 for certification of a document. direct cost of processing requests for
The Commission will not charge a fee those records computed on the basis of ■ 22. The authority citation for part 100
for ordinary packaging and mailing of the actual number of copies produced continues to read as follows:
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/21.svg)
![Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules 76437
Authority: 52 U.S.C. 30101, 30104, ■ 29. Add § 100.34 to subpart A to read and adding in its place ‘‘records’’
30111(a)(8), and 30114(c). as follows: wherever it appears.
§ 100.3 [Amended] § 100.34 Record. § 100.93 [Amended]
■ 23. Amend § 100.3(a)(3) by removing (a) A record is information that is ■ 34. Amend the introductory text of
‘‘by letter’’ and adding in its place ‘‘in inscribed on a tangible medium or that § 100.93(j)(1), (2), and (3) by removing
writing’’. is stored in an electronic or other ‘‘documentation’’ and adding in its
§ 100.9 [Amended] medium from which the information place ‘‘a record’’ wherever it appears.
■ 24. Amend § 100.9 by removing ‘‘, 999 can be retrieved and reviewed in visual
or aural form. § 100.94 [Amended]
E Street NW., Washington, DC 20463’’. ■ 35. Amend § 100.94(b) by removing
■ 25. In § 100.19, revise the introductory
(b) Any person who provides to the
Commission a record stored in an ‘‘Web site’’ and adding in its place
paragraph and add paragraph (g) to read
electronic or other non-tangible medium ‘‘website’’ wherever it appears.
as follows:
shall, upon request of the Commission,
§ 100.132 [Amended]
§ 100.19 File, filed, or filing (52 U.S.C. provide at no cost to the Commission
30104(a)). any equipment and software necessary ■ 36. Amend the introductory text of
With respect to documents required to to enable the Commission to retrieve § 100.132 by removing ‘‘Web site’’ and
be filed with the Commission or the and review the information in the adding in its place ‘‘website’’.
Secretary of the Senate under 11 CFR record. The Commission may request § 100.142 [Amended]
parts 101, 102, 104, 105, 107, 108, and such equipment and software when the ■ 37. Amend § 100.142(e)(1)(i) and
109, and any modifications or Commission cannot retrieve and review (e)(2)(ii) by removing ‘‘documentation’’
amendments thereto, the terms file, the information using the Commission’s and adding in its place ‘‘records’’
filed, and filing mean one of the actions existing equipment and software. wherever it appears.
set forth in paragraphs (a) through (f) of ■ 30. Add § 100.35 to subpart A to read
this section. With respect to documents as follows: PART 102—REGISTRATION,
to be filed with the Commission under ORGANIZATION, AND
any other provision of 11 CFR, the terms § 100.35 Writing, written.
Written, in writing, or a writing means RECORDKEEPING BY POLITICAL
file, filed, and filing mean one of the COMMITTEES (52 U.S.C. 30103)
actions set forth in paragraph (g) of this consisting of letters, words, numbers, or
section. For purposes of this section, their equivalent set down in any ■ 38. The authority citation for part 102
document means any report, statement, medium or form, including paper, email continues to read as follows:
notice, designation, request, petition, or or other electronic message, computer
other writing to be filed with the file, or digital storage device. Authority: 52 U.S.C. 30102, 30103,
■ 31. Add § 100.36 to subpart A to read 30104(a)(11), 30111(a)(8), and 30120.
Commission or the Secretary of the
Senate. as follows: § 102.2 [Amended]
* * * * * § 100.36 Signature, electronic signature. ■ 39. Amend § 102.2 as follows:
(g) A document may be filed in person (a) A signature is an individual’s ■ a. In the introductory text to
or by mail, including priority mail or name or mark on a writing or record that paragraph (a)(1), remove ‘‘, 999 E Street
express mail, or overnight delivery identifies the individual and NW., Washington, DC 20463’’; and
service, with the Federal Election authenticates the writing or record. A ■ b. In paragraph (a)(1)(vii), remove
Commission, 999 E Street NW., signature includes an electronic ‘‘web site’’ and add in its place
Washington, DC 20463, or by any signature, unless otherwise specified. ‘‘website’’.
alternative means, including electronic, (b) An electronic signature is an ■ 40. Amend § 102.6 as follows:
that the Commission may prescribe. electronic word, image, symbol, or ■ a. In the introductory text of
process that an individual attaches to or paragraph (c)(2), remove ‘‘fund in a bill’’
§ 100.24 [Amended]
associates with a writing or record to and add in its place ‘‘fund with a bill’’;
■ 26. Amend § 100.24 as follows: and
■ a. In paragraph (c)(7)(i), by removing identify the individual and authenticate
the writing or record. Examples of ■ b. Revise paragraph (c)(3).
‘‘Web site’’ and ‘‘web page’’ and adding
electronic signatures include a digital The revision reads as follows:
in their places, ‘‘website or internet
application’’ wherever they appear; and image of a handwritten signature, or a § 102.6 Transfers of funds; collecting
■ b. In paragraphs (c)(7)(ii) and (iii), by secure, digital code attached to an agents.
removing ‘‘Web site’’ and adding in its electronically transmitted message that * * * * *
place ‘‘website or internet application’’ uniquely identifies and authenticates (c) * * *
wherever it appears. the sender. (3) Combining contributions with
(c) A writing or record may be sworn, other payments. A contributor may
§ 100.26 [Amended] made under oath, or otherwise certified write a check or authorize a credit card
■ 27. Amend § 100.26 by removing or verified under penalty of perjury, by or electronic payment that represents
‘‘Web site’’ and adding in its place electronic signature. A writing or record both a contribution and payment of
‘‘website or internet-enabled device or may be notarized electronically dues or other fees. The combined
application’’. pursuant to applicable State law.
sradovich on DSK3GMQ082PROD with PROPOSALS2
payment must be made from the
§ 100.29 [Amended] § 100.73 [Amended] contributor’s personal account or on a
■ 28. Amend § 100.29 as follows: ■ 32. Amend the introductory text of non-repayable corporate drawing
■ a. In paragraphs (b)(6)(i) and (ii), § 100.73 by removing ‘‘Web site’’ and account of the individual contributor.
remove ‘‘Web site’’ and add in its place adding in its place ‘‘website’’. Under a payroll deduction plan, an
‘‘website’’ wherever it appears; and employer may make a payment on
■ b. In paragraph (b)(6)(ii)(A), remove § 100.82 [Amended] behalf of its employees to a union or its
‘‘written documentation’’ and add in its ■ 33. Amend § 100.82(e)(1)(i) and agent that represents a combined
place ‘‘a writing’’. (e)(2)(ii) by removing ‘‘documentation’’ payment of voluntary contributions to
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/22.svg)
![76438 Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules
the union’s separate segregated fund treasurer shall maintain a record of each the depository for investment purposes,
and union dues or other employee contribution received. A record of a but shall be returned to the depository
deductions. contribution by check or written before such funds are used to make
* * * * * instrument must contain an image of expenditures.
■ 41. In § 102.8, revise the last sentence that instrument. A record of the receipt * * * * *
of paragraph (a), revise the last sentence of a contribution must include sufficient
of paragraph (b)(2), and add paragraph information to associate that PART 104—REPORTS BY POLITICAL
(d) to read as follows: contribution with its deposit in the COMMITTEES AND OTHER PERSONS
political committee’s campaign (52 U.S.C. 30104)
§ 102.8 Receipt of contributions (52 U.S.C. depository, such as, for example, a batch
30102(b)). number. ■ 47. The authority citation for part 104
(a) * * * Date of receipt shall be the continues to read as follows:
* * * * *
date such person obtains possession of (f) The treasurer shall maintain the Authority: 52 U.S.C. 30101(1), 30101(8),
the contribution or, for a contribution records required by 11 CFR 110.1(l), 30101(9), 30102(i), 30104, 30111(a)(8) and
made in an electronic transaction in (b), 30114, 30116, 36 U.S.C. 510.
concerning designations, redesignations,
which the receipt of authorization reattributions, and the dates of § 104.4 [Amended]
precedes the receipt of funds, obtains contributions. If the treasurer does not
the contributor’s authorization of the ■ 48. Amend § 104.4(d)(2) by removing
maintain these records, 11 CFR ‘‘typing the treasurer’s name’’ and
transaction. 110.1(l)(5) shall apply.
(b) * * * adding in its place ‘‘electronic
(2) * * * Date of receipt shall be the § 102.10 [Amended] signature’’.
date such person obtains possession of ■ 43. Amend § 102.10 by removing § 104.6 [Amended]
the contribution or, for a contribution ‘‘check or similar draft drawn on’’ and ■ 49. Amend § 104.6(c)(1) by removing
made in an electronic transaction in adding in its place ‘‘check or similar ‘‘, telephone or telegram’’ and adding in
which the receipt of authorization draft, including electronic transfer, its place ‘‘or telephone’’.
precedes the receipt of funds, obtains from’’.
the contributor’s authorization of the § 104.10 [Amended]
transaction. § 102.11 [Amended]
■ 50. Amend § 104.10(a)(4) and (b)(5) by
* * * * * ■ 44. Amend § 102.11 by removing removing ‘‘documents’’ and adding in
(d) Every person whose usual and ‘‘journal’’ and add in its place ‘‘record’’ its place ‘‘records’’.
normal business involves the processing wherever it appears.
and transmission of payments and who § 104.14 [Amended]
PART 103—CAMPAIGN ■ 51. Amend § 104.14 as follows:
processes a contribution to a political
DEPOSITORIES (52 U.S.C. 30102(H)) ■ a. In paragraph (b)(4)(iv), remove
committee in the ordinary course of its
business will satisfy the requirements of ■ 45. The authority citation for part 103 ‘‘documentation’’ and add in its place
paragraphs (a) and (b) of this section if continues to read as follows: ‘‘records’’; and
such person transmits funds and ■ b. In paragraph (b)(4)(v), remove
contributor information to the recipient Authority: 52 U.S.C. 30102(h), 30111(a)(8). ‘‘Documentation for’’ and add in its
political committee within the time ■ 46. Revise § 103.3(a) to read as place ‘‘Records of’’.
periods prescribed in paragraphs (a) and follows:
§ 104.17 [Amended]
(b) of this section for forwarding § 103.3 Deposit of receipts and ■ 52. Amend § 104.17(a)(4) and (b)(4) by
contributions. disbursements (52 U.S.C. 30102(h)(1)). removing ‘‘documents’’ and adding in
■ 42. Amend § 102.9 as follows:
(a)(1) All receipts by a political its place ‘‘records’’ wherever it appears.
■ a. Revise paragraph (a)(4);
committee shall be deposited in
■ b. In the introductory text of § 104.22 [Amended]
account(s) established pursuant to 11
paragraph (b)(2) and paragraphs ■ 53. Amend § 104.22 as follows:
CFR 103.2, except that any contribution
(b)(2)(i)(B) and (b)(2)(ii), remove ■ a. In paragraph (a)(6)(ii)(A)(2), remove
may be, within 10 days of the treasurer’s
‘‘cancelled check’’ and add in its place ‘‘Internet Web site’’ and add in its place
receipt, returned to the contributor
‘‘canceled check or record of electronic ‘‘website’’;
without being deposited. The treasurer
transfer’’; ■ b. In paragraphs (b)(2)(i) and (ii),
of the committee shall be responsible for
■ c. In paragraph (b)(2)(i)(B), remove remove ‘‘Web sites’’ and add in its place
making such deposits. All deposits shall
‘‘documentation’’ and add in its place ‘‘websites’’ wherever it appears; and
be made within 10 days of the
‘‘record’’; ■ c. In paragraph (b)(2)(ii), remove
treasurer’s receipt. Contributions
■ d. In paragraph (b)(2)(ii), remove ‘‘Web site’’ and add in its place
deposited in the merchant account of a
‘‘documentation’’ and add in its place ‘‘website’’ wherever it appears.
person described in 11 CFR 102.8(d) in
‘‘a record’’;
■ f. Remove paragraph (b)(2)(iii); and
the ordinary course of that person’s
PART 105—DOCUMENT FILING (52
■ g. Revise paragraph (f).
business are not receipts by the
U.S.C. 30102(G))
The revisions read as follows: committee, but are, instead,
contributions to be forwarded by that ■ 54. The authority citation for part 105
sradovich on DSK3GMQ082PROD with PROPOSALS2
§ 102.9 Accounting for contributions and person under 11 CFR 102.8. continues to read as follows:
expenditures (52 U.S.C. 30102(c)). (2) A committee shall make all Authority: 52 U.S.C. 30102(g), 30104,
* * * * * disbursements by check or similar draft, 30111(a)(8).
(a) * * * including electronic transfer, from an
(4) In addition to the account to be account at its designated campaign § 105.5 [Amended]
kept under paragraph (a)(1) of this depository, except for expenditures of ■ 55. Amend § 105.5 as follows:
section, for contributions in excess of $100 or less made from a petty cash ■ a. Remove ‘‘microfilm copies and
$50, the treasurer of a political fund maintained pursuant to 11 CFR photocopies’’ from the section heading
committee or an agent authorized by the 102.11. Funds may be transferred from and add in its place ‘‘copies’’;
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/23.svg)
![Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules 76439
■ b. In paragraph (a), remove ‘‘Either a check or similar draft, including ■ 65. Amend § 110.4 as follows:
microfilmed copy or photocopy’’ and electronic transfer’’; ■ a. In paragraph (c)(1), remove ‘‘make
add in its place ‘‘A copy’’; and ■ b. In paragraph (b)(4)(i), remove ‘‘is contributions to a candidate or political
■ c. In paragraph (b), remove ‘‘microfilm made by check, money order, or other committee of currency of the United
copy and a photocopy’’ and add in its negotiable instrument which’’; States, or of any foreign country’’ and
place ‘‘copy’’. ■ c. In paragraph (b)(5)(ii)(B)(6), remove add in its place ‘‘make cash
‘‘including electronic mail’’; contributions to a candidate or political
PART 106—ALLOCATIONS OF ■ d. In paragraph (b)(5)(ii)(C)(7), remove committee’’; and
CANDIDATE AND COMMITTEE ‘‘, including electronic mail’’; ■ b. Add paragraph (c)(4).
ACTIVITIES ■ e. In paragraph (b)(6), add a fifth The addition reads as follows:
■ 56. The authority citation for part 106 sentence after ‘‘11 CFR 110.1(l)(4).’’;
■ f. In paragraph (c)(1)(iii), remove § 110.4 Contributions in the name of
continues to read as follows: another; cash contributions (52 U.S.C.
‘‘Web site’’ and add, in its place,
Authority: 52 U.S.C. 30111(a)(8), 30116(b), 30122, 30123, 30102(c)(2)).
‘‘website’’;
30116(g). ■ g. In paragraph (k)(1), remove * * * * *
‘‘include the signature of each (c) * * *
§ 106.2 [Amended]
contributor on the check, money order, (4) For purposes of this section, a cash
■ 57. Amend § 106.2 as follows: contribution includes a contribution of
■ a. In paragraphs (a)(1), (b)(2)(ii), and or other negotiable instrument or in a
separate writing’’ and add in its place currency of the United States or of any
(b)(2)(v), remove ‘‘documentation’’ and foreign country, and a contribution
add in its place ‘‘records’’; and ‘‘be indicated by the signature of each
contributor in writing’’; made by prepaid card.
■ b. In paragraph (b)(2)(iii)(D), remove
■ h. In paragraph (k)(3)(ii)(B)(3), remove ■ 66. Amend § 110.6 as follows:
‘‘supplies, and telephone’’ and add in
‘‘including electronic mail’’; ■ a. In paragraph (b)(2)(i)(D), remove
its place ‘‘supplies, internet service, and
■ i. In paragraph (l)(1), remove ‘‘copy’’ ‘‘and’’;
telephone’’.
and ‘‘full-size photocopy of the check or ■ b. In paragraph (b)(2)(i)(E), remove
PART 108—FILING COPIES OF written instrument’’ and add in their ‘‘contributions.’’ and add in its place
REPORTS AND STATEMENTS WITH places ‘‘record’’ and ‘‘record that ‘‘contributions; and’’;
STATE OFFICERS (52 U.S.C. 30113) contains a complete image of that ■ c. Add paragraph (b)(2)(i)(F);
instrument’’, respectively; ■ d. In paragraph (c)(1)(ii), remove ‘‘by
■ 58. The authority citation for part 108 ■ j. In paragraph (l)(4)(i), remove ‘‘copy’’ letter’’ and add in its place ‘‘the report
continues to read as follows: and add in its place ‘‘record’’; shall be provided in writing’’;
Authority: 52 U.S.C. 30104(a)(2), ■ k. In paragraph (l)(4)(ii), remove ‘‘full- ■ e. In paragraph (c)(1)(iv)(C), remove
30111(a)(8), 30113, 30143. size photocopy of’’ and add in its place ‘‘cash or by the contributor’s check or by
‘‘record that contains a complete image the conduit’s check’’ and add in its
§ 108.6 [Amended] place ‘‘cash, by the contributor’s check,
of’’; and
■ 59. In § 108.6(b), remove ‘‘in facsimile ■ l. In paragraph (l)(6), remove by the conduit’s check, or by electronic
copy by microfilm or otherwise’’ and ‘‘documentation’’ and add in its place transfer’’; and
add in its place ‘‘by copy’’. ‘‘a record’’ wherever it appears. ■ f. In paragraph (c)(1)(v), remove ‘‘by
The addition reads as follows: letter’’ and add in its place ‘‘in writing’’.
PART 109—COORDINATED AND The addition reads as follows:
INDEPENDENT EXPENDITURES (52 § 110.1 Contributions by persons other
U.S.C. 30101(17), 30116(A) AND (D), than multicandidate political committees Alternative A
AND PUBLIC LAW 107–155 SEC. (52 U.S.C. 30116(a)(1)).
§ 110.6 Earmarked contributions (52 U.S.C.
214(C)) * * * * * 30116(a)(8)).
(b) * * *
■ 60. The authority citation for part 109 * * * * *
(6) * * * A contribution made in an
continues to read as follows: (b) * * *
electronic transaction is considered to
Authority: 52 U.S.C. 30101(17), 30104(c), be made when the contributor (2) * * *
30111(a)(8), 30116, 30120; Sec. 214(c), Public authorizes the transaction. * * * (i) * * *
Law 107–155, 116 Stat. 81. (F) A commercial payment processor,
* * * * * which is any person whose usual and
§ 109.10 [Amended] ■ 64. Amend § 110.2 as follows:
normal business is to process payments
■ 61. In § 109.10(e)(2)(ii), remove ■ a. In paragraph (b)(4)(i), remove ‘‘is
and who processes payments to
‘‘typing the treasurer’s name’’ and add made by check, money order, or other candidates and authorized committees
in its place ‘‘electronic signature’’. negotiable instrument which’’; in the ordinary course of business
■ b. In paragraph (b)(6), add a fifth
without exercising direction or control
PART 110—CONTRIBUTION AND sentence after ‘‘11 CFR 110.1(l)(4).’’; and over the choice of the recipient
EXPENDITURE LIMITATIONS AND ■ c. In paragraph (e)(2), remove ‘‘Web
candidate or authorized committee.
PROHIBITIONS site’’ and add in its place ‘‘website’’.
The addition reads as follows: * * * * *
■ 62. The authority citation for part 110
continues to read as follows: § 110.2 Contributions by multicandidate
Alternative B
sradovich on DSK3GMQ082PROD with PROPOSALS2
Authority: 52 U.S.C. 30101(8), 30101(9), political committees (52 U.S.C. 30116(a)(2)). § 110.6 Earmarked contributions (52 U.S.C.
30102(c)(2), 30104(i)(3), 30111(a)(8), 30116, * * * * * 30116(a)(8)).
30118, 30120, 30121, 30122, 30123, 30124, (b) * * * * * * * *
and 36 U.S.C. 510. (6) * * * A contribution made in an (b) * * *
■ 63. Amend § 110.1 as follows: electronic transaction is considered to (2) * * *
■ a. In paragraph (b)(3)(i)(A), remove be made when the contributor (i) * * *
‘‘using a committee check or draft’’ and authorizes the transaction. * * * (F) A commercial payment processor,
add in its place ‘‘using a committee * * * * * which is any person whose usual and
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/24.svg)
![76440 Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules
normal business is to process payments ■ a. In paragraph (a), remove § 111.35 [Amended]
and who processes payments to ‘‘documentary or other tangible’’ and ■ 81. Amend § 111.35(e) by removing
candidates and authorized committees add in its place ‘‘records or other’’; and ‘‘documentation’’ and adding in its
in the ordinary course of business. ■ b. In paragraph (b), remove place ‘‘records’’.
* * * * * ‘‘documents’’ and add in its place
‘‘records’’. § 111.36 [Amended]
§ 110.11 [Amended]
§ 111.13 [Amended] ■ 82. Amend § 111.36 as follows:
■ 67. Amend § 110.11 as follows:
■ a. In paragraph (b), remove
■ a. In paragraph (a)(1), remove ■ 75. Amend § 111.13(c) and (d) by
‘‘Internet websites’’ and add in its place removing ‘‘method whereby’’ and ‘‘documentation’’ and add in its place
‘‘websites and internet applications’’; adding in its place ‘‘method, including ‘‘records’’ wherever it appears;
and electronically, whereby’’ wherever it ■ b. In paragraphs (c) and (d), remove
■ b. In paragraph (b)(3), remove ‘‘World appears. ‘‘documents’’ and add in its place
Wide Web address’’ and add in its place ‘‘records’’ wherever it appears; and
§ 111.15 [Amended]
‘‘website address’’. ■ c. In paragraph (d), remove
■ 76. Amend § 111.15 as follows: ‘‘document(s)’’ and add in its place
§ 110.17 [Amended] ■ a. In paragraph (a), remove ‘‘, Federal ‘‘records’’.
■ 68. Amend § 110.17(e)(1) and (2) by Election Commission, 999 E Street NW., ■ d. In paragraph (e), remove
removing ‘‘Web site’’ and adding in its Washington, DC 20463. If possible, three ‘‘documents’’ and add in its place
place ‘‘website’’ wherever it appears. (3) copies should be submitted’’; and ‘‘records’’.
■ b. In paragraph (c), remove
PART 111—COMPLIANCE § 111.37 [Amended]
‘‘documents’’ and add in its place
PROCEDURE (52 U.S.C. 30109,
‘‘records’’. ■ 83. Amend § 111.37(a) and (b) by
30107(A))
■ 77. Amend § 111.16 as follows: removing ‘‘by letter’’ and adding in its
■ 69. The authority citation for part 111 ■ a. In paragraph (b), remove ‘‘enclose’’ place ‘‘in writing’’ wherever it appears.
continues to read as follows: and add in its place ‘‘provide’’;
§ 111.40 [Amended]
Authority: 52 U.S.C. 30102(i), 30109, ■ b. Revise paragraph (c).
30107(a), 30111(a)(8); 28 U.S.C. 2461 note; 31 The revision reads as follows: ■ 84. Amend § 111.40(a) by removing
U.S.C. 3701, 3711, 3716–3719, and 3720A, as ‘‘by letter’’ and adding in its place ‘‘in
amended; 31 CFR parts 285 and 900–904. § 111.16 The probable cause to believe writing’’.
recommendation; briefing procedures (52
§ 111.4 [Amended] U.S.C. 30109 (a)(3)). PART 112—ADVISORY OPINIONS (52
■ 70. Amend § 111.4 as follows: * * * * * U.S.C. 30108)
■ a. In paragraph (a), remove ‘‘to the (c) Within fifteen (15) days from
General Counsel, Federal Election receipt of the General Counsel’s brief, ■ 85. The authority citation for part 112
Commission, 999 E Street NW., respondent may file a brief with the continues to read as follows:
Washington, DC 20463’’ and add in its Commission Secretary, setting forth Authority: 52 U.S.C. 30108, 30111(a)(8).
place ‘‘addressed to the General respondent’s position on the factual and
Counsel’’; legal issues of the case. § 112.1 [Amended]
■ b. In paragraph (a), remove ‘‘three (3) * * * * * ■ 86. Amend § 112.1(e) by removing
copies’’ and add in its place ‘‘three (3) ‘‘sent to the Federal Election
copies of any complaint not filed § 111.17 [Amended] Commission, Office of General Counsel,
electronically’’; and ■ 78. Amend § 111.17(a) and (b) by 999 E Street NW., Washington, DC
■ c. In paragraph (d)(4), remove removing ‘‘by letter’’ and adding in its 20463’’ and adding in its place
‘‘documentation supporting the facts place ‘‘in writing’’ wherever it appears. ‘‘addressed to the Office of General
alleged if such documentation is’’ and Counsel and filed with the
add in its place ‘‘records supporting the § 111.18 [Amended] Commission’’.
facts alleged if such records are’’. ■ 79. Amend § 111.18(d) by removing
‘‘by letter’’ and adding in its place ‘‘in § 112.2 [Amended]
§ 111.5 [Amended]
writing’’. ■ 87. Amend § 112.2(b) by removing
■ 71. Amend § 111.5 as follows: ‘‘and purchase at the Public Disclosure
■ a. In paragraph (a), remove ‘‘enclose’’ § 111.23 [Amended]
Division of the Commission’’ and
and add in its place ‘‘provide’’; and ■ 80. Amend § 111.23 as follows: adding in its place ‘‘at the Public
■ b. In paragraph (b), remove ■ a. In the introductory text to Disclosure Division of the Commission
‘‘enclosed’’ and add in its place paragraph (a), remove ‘‘so advise the and on the Commission’s Web site’’.
‘‘provided’’. Commission by sending a letter of
representation signed by the § 112.3 [Amended]
§ 111.6 [Amended]
respondent, which letter shall state the ■ 88. Amend § 112.3(d) by removing
■ 72. Amend § 111.6(a) by removing ‘‘a following’’ and add in its place ‘‘give
letter or memorandum’’ and adding in ‘‘sent to the Federal Election
the Commission a written notice of
sradovich on DSK3GMQ082PROD with PROPOSALS2
its place ‘‘a written response’’. Commission, Office of General Counsel,
representation signed by the 999 E Street NW., Washington, DC
§ 111.9 [Amended] respondent, which shall include’’; 20463’’ and adding in its place ‘‘filed
■ 73. Amend § 111.9(a) and (b) by ■ b. In paragraph (a)(1), remove with the Office of General Counsel’’.
removing ‘‘by letter’’ and adding in its ‘‘address’’ and add in its place ‘‘address,
email address’’; and § 112.4 [Amended]
place ‘‘in writing’’ wherever it appears.
■ c. In paragraph (b), remove ‘‘a letter of ■ 89. Amend § 112.4(g) by removing
§ 111.12 [Amended] representation’’ and add in its place ‘‘sent by mail, or personally delivered’’
■ 74. Amend § 111.12 as follows: ‘‘this notice’’. and adding in its place ‘‘be provided’’.
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/25.svg)
![Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules 76441
PART 114—CORPORATE AND LABOR PART 200—PETITIONS FOR ■ b. In paragraph (m)(1)(iii), remove
ORGANIZATION ACTIVITY RULEMAKING ‘‘Web page’’ and add in its place ‘‘Web
page’’.
■ 90. The authority citation for part 114 ■ 98. The authority citation for part 200
continues to read as follows: is amended to read as follows: § 300.64 [Amended]
Authority: 52 U.S.C. 30101(8), 30101(9), Authority: 52 U.S.C. 30107(a)(8), ■ 107. Amend § 300.64 as follows:
30102, 30104, 30107(a)(8), 30111(a)(8), 30111(a)(8); 5 U.S.C. 553(e). ■ a. In paragraphs (c)(3)(ii) and (iii),
30118. remove ‘‘written’’ and add in its place
§ 200.2 [Amended] ‘‘printed’’ wherever it appears;
§ 114.1 [Amended] ■ 99. Amend § 200.2(b)(5) by removing ■ b. In paragraph (c)(3)(iii), remove
■ 91. Amend § 114.1(g) by removing ‘‘addressed and submitted to the Federal ‘‘non-written’’ and add in its place
‘‘mailings, oral requests’’ and adding in Election Commission, Office of General ‘‘non-printed’’; and
its place ‘‘mailings, emails, oral Counsel, 999 E Street NW., Washington, ■ c. In paragraph (c)(3)(v), remove all
requests’’. DC 20463’’ and adding in its place references to ‘‘written’’.
‘‘addressed to the Office of General
§ 114.6 [Amended] Counsel and filed pursuant to 11 CFR PART 9002—DEFINITIONS
■ 92. Amend § 114.6(d)(2)(iii) by 100.19(g)’’. ■ 108. The authority citation for part
removing ‘‘check drawn on that § 200.3 [Amended] 9002 continues to read as follows:
account’’ and adding in its place ‘‘check Authority: 26 U.S.C. 9002 and 9009(b).
or similar draft, including electronic ■ 100. Amend § 200.3 as follows:
transfer’’. ■ a. In paragraph (a)(2), remove ‘‘Send a § 9002.3 [Amended]
letter to the Commissioner of Internal
■ 109. Amend § 9002.3 by removing ‘‘,
§ 114.8 [Amended] Revenue, pursuant to 52 U.S.C. 30111(f),
999 E Street NW., Washington, DC
■ 93. Amend § 114.8 as follows: seeking the IRS’s’’ and add in its place
20463’’.
‘‘Pursuant to 52 U.S.C. 30111(f), seek
■ a. In paragraphs (d)(2) and (3), remove
the Internal Revenue Service’s’’; and PART 9003—ELIGIBILITY FOR
‘‘copy’’ and add in its place ‘‘record’’;
■ b. In paragraph (a)(3), remove ‘‘Send PAYMENTS
and
a letter to’’ and add in its place
■ b. In paragraph (d)(3), remove ■ 110. The authority citation for part
‘‘Notify’’.
‘‘mailing’’ and add in its place 9003 continues to read as follows:
‘‘solicitation’’. § 200.4 [Amended]
Authority: 26 U.S.C. 9003 and 9009(b).
§ 114.9 [Amended]
■ 101. Amend § 200.4(b) by removing
‘‘sending a letter to’’ and adding in its § 9003.1 [Amended]
■ 94. Amend § 114.9(d) by removing place ‘‘notifying’’. ■ 111. Amend § 9003.1 as follows:
‘‘typewriters’’ and adding in its place ■ a. In paragraph (a)(1), remove ‘‘letter’’
‘‘computers’’. § 200.6 [Amended]
and add in its place ‘‘writing’’;
■ 102. Amend § 200.6(a)(5) by removing ■ b. In paragraph (a)(2), remove ‘‘letter’’
PART 116—DEBTS OWED BY ‘‘audio tapes’’ and adding in its place and add in its place ‘‘agreement’’
CANDIDATES AND POLITICAL ‘‘audio recordings’’. wherever it appears;
COMMITTEES
■ c. In paragraphs (b)(2) and (3), remove
PART 201—EX PARTE ‘‘documentation’’ and add in its place
■ 95. The authority citation for part 116 COMMUNICATIONS
continues to read as follows: ‘‘record’’ wherever it appears;
■ 103. The authority citation for part ■ d. In paragraph (b)(4), remove
Authority: 52 U.S.C. 30103(d), ‘‘computerized magnetic media, such as
30104(b)(8), 30111(a)(8), 30116, 30118, and 201 continues to read as follows:
30141.
magnetic tapes or magnetic diskettes’’
Authority: 52 U.S.C. 30107(a)(8), 30108,
and add in its place ‘‘digital storage
30111(a)(8), and 30111(b); 26 U.S.C. 9007,
§ 116.8 [Amended] 9008, 9009(b), 9038, and 9039(b). devices’’;
■ e. In paragraphs (b)(4) and (5), remove
■ 96. Amend § 116.8 as follows:
§ 201.3 [Amended] ‘‘documentation’’ and add in its place
■ a. In the introductory text of
■ 104. Amend § 201.3 as follows: ‘‘records’’ wherever it appears; and
paragraph (b), remove ‘‘by letter’’ and ■ f. In paragraph (b)(7), remove ‘‘name
add in its place ‘‘in writing’’; and ■ a. In paragraph (b)(1), remove ‘‘the
letter’’ and add in its place ‘‘the and mailing address’’ and add in its
■ b. In the introductory text of place ‘‘name, email address, and
agreement’’ wherever it appears; and
paragraph (b), remove ‘‘The letter’’ and mailing address’’.
■ b. In paragraph (b)(2)(i), remove
add in its place ‘‘The notification’’ ■ 112. Revise § 9003.2(d) to read as
‘‘letter’’ and add in its place
wherever it appears. follows:
‘‘notification’’.
§ 116.9 [Amended] § 9003.2 Candidate certifications.
PART 300—NON-FEDERAL FUNDS
■ 97. Amend § 116.9(a)(2) by removing * * * * *
‘‘current address and telephone number, ■ 105. The authority citation for part (d) Form. Major party candidates shall
sradovich on DSK3GMQ082PROD with PROPOSALS2
and has attempted to contact the 300 continues to read as follows: sign and submit the certifications
creditor by registered or certified mail, Authority: 52 U.S.C. 30104(e), 30111(a)(8), required under 11 CFR 9003.2 within 14
and either in person or by telephone’’ 30116(a), 30125, and 30143. days after receiving the party’s
and adding in its place ‘‘current nomination for election. Minor and new
address, telephone number, and email § 300.2 [Amended] party candidates shall sign and submit
address, and has attempted to contact ■ 106. Amend § 300.2 as follows: such certification within 14 days after
the creditor by registered or certified ■ a. In paragraph (m)(1)(iii), remove such candidates have qualified to
mail, and either in person, by telephone, ‘‘Web address’’ and add in its place appear on the general election ballot in
or by email’’. ‘‘Web site address’’; and 10 or more States pursuant to 11 CFR
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/26.svg)
![76442 Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules
9002.2(a)(2). The Commission, upon ■ a. In paragraph (a)(1), remove Authority: 26 U.S.C. 9003(e), 9033 and
written request by a minor or new party ‘‘telephone service, typewriters, and 9039(b).
candidate made at any time prior to the computers’’ and add in its place ■ 127. Amend § 9033.1 as follows:
date of the general election, may extend ‘‘telephone and internet service, and ■ a. Revise paragraph (a)(1);
the deadline for filing such certification, computers or other electronic devices’’; ■ b. In paragraphs (b)(2) through (6),
except that the deadline shall be a date and remove ‘‘documentation’’ and add in its
prior to the day of the general election. ■ b. In paragraph (b)(3), remove place ‘‘records’’ wherever it appears;
‘‘telephone service’’ and add in its place ■ c. In paragraph (b)(5), remove
§ 9003.3 [Amended] ‘‘telephone and internet service’’. ‘‘computerized magnetic media, such as
■ 113. Amend § 9003.3(a)(1)(vi)(A) by magnetic tapes or magnetic diskettes’’
removing ‘‘is made by check, money § 9004.7 [Amended] and add in its place ‘‘digital storage
order, or other negotiable instrument ■ 118. Amend § 9004.7(b)(5)(iv) and (v) devices’’; and
which’’. by removing ‘‘documentation’’ and ■ d. Revise paragraph (b)(8).
■ 114. Amend § 9003.5 as follows: adding in its place ‘‘records’’ wherever The revisions read as follows:
■ a. Revise the section heading; it appears.
■ b. Revise the paragraph heading of § 9033.1 Candidate and committee
§ 9004.9 [Amended] agreements.
paragraph (b);
■ c. In paragraphs (b)(1) and (b)(2)(ii), ■ 119. Amend § 9004.9(d)(1)(i) and (e) (a) * * *
remove ‘‘canceled check negotiated by by removing ‘‘documentation’’ and (1) A candidate seeking to become
the payee’’ and add in its place adding in its place ‘‘records’’ wherever eligible to receive Presidential primary
‘‘canceled check negotiated by the payee it appears. matching fund payments shall agree in
or a record of electronic transfer to the a writing signed by the candidate to the
PART 9007—EXAMINATIONS AND Commission that the candidate and the
payee’’ wherever it appears;
■ d. In paragraphs (b)(1)(ii)(A) and (B),
AUDITS; REPAYMENTS candidate’s authorized committee(s)
remove ‘‘documents’’ and add in its ■ 120. The authority citation for part will comply with the conditions set
place ‘‘records’’ wherever it appears; 9007 continues to read as follows: forth in 11 CFR 9033.1(b). The
■ e. In paragraph (b)(1)(iii), remove candidate may submit the written
Authority: 26 U.S.C. 9007 and 9009(b).
‘‘documentation’’ and add in its place agreement required by this section at
‘‘record’’; § 9007.1 [Amended] any time after January 1 of the year
■ f. In paragraphs (b)(1)(iv), (b)(4), and ■ 121. Amend § 9007.1 as follows: immediately preceding the Presidential
(c), remove ‘‘documentation’’ and add in ■ a. In paragraph (b)(1), remove ‘‘the election year.
its place ‘‘records’’ wherever it appears; Commission may request additional or * * * * *
and updated computerized information’’ and (b) * * *
■ g. In paragraph (b)(1)(iv), remove add in its place ‘‘the Commission may (8) The candidate and the candidate’s
‘‘canceled check negotiated by the request additional or updated authorized committee(s) will submit the
payee’’ and add in its place ‘‘canceled information’’; and name, email address, and mailing
check negotiated by the payee or the ■ b. In paragraphs (b)(1)(iv) and (c)(2), address of the person who is entitled to
record of electronic transfer to the remove ‘‘documentation’’ and add in its receive matching fund payments on
payee’’. place ‘‘records’’ wherever it appears. behalf of the candidate and the name
The revisions read as follows: and address of the campaign depository
§ 9007.7 [Amended]
§ 9003.5 Records of disbursements. designated by the candidate as required
■ 122. Amend § 9007.7 as follows: by 11 CFR part 103 and 11 CFR 9037.3.
* * * * * ■ a. In paragraph (a), remove
Changes in the information required by
(b) Records required. * * * ‘‘documents’’ and add in its place
this paragraph shall not be effective
* * * * * ‘‘documents, records,’’ wherever it
until submitted to the Commission in a
appears; and
§ 9003.6 [Amended] ■ b. In paragraph (b)(2), remove ‘‘tapes’’
writing signed by the candidate or the
and add in its place ‘‘recordings’’ Committee treasurer.
■ 115. Amend § 9003.6 as follows:
■ a. In paragraph (a), remove wherever it appears. * * * * *
‘‘computerized magnetic media, such as § 9033.2 [Amended]
magnetic tapes or magnetic diskettes’’ PART 9032—DEFINITIONS
and add in its place ‘‘digital storage ■ 128. Amend § 9033.2 as follows:
■ 123. The authority citation for part ■ a. In paragraph (a)(1), remove ‘‘letter
devices’’; 9032 continues to read as follows:
■ b. Remove paragraph (b) and
containing the required certifications’’
redesignate paragraph (c) as paragraph Authority: 26 U.S.C. 9032 and 9039(b). and add in its place ‘‘certifications’’;
(b); and and
§ 9032.2 [Amended] ■ b. In paragraph (c), remove
■ c. In newly redesignated paragraph
■ 124. Amend § 9032.2(d) by removing ‘‘documentation’’ and add in its place
(b), remove ‘‘documentation’’ and add ‘‘by letter’’ and adding in its place ‘‘in
in its place ‘‘records’’. ‘‘records’’.
writing’’.
§ 9033.5 [Amended]
PART 9004—ENTITLEMENT OF § 9032.3 [Amended]
sradovich on DSK3GMQ082PROD with PROPOSALS2
ELIGIBLE CANDIDATES TO ■ 129. Amend paragraph (a)(2) of
■ 125. Amend § 9032.3 by removing ‘‘, § 9033.5 by removing ‘‘by letter’’ and
PAYMENTS; USE OF PAYMENTS 999 E Street NW., Washington, DC adding in its place ‘‘in writing’’.
■ 116. The authority citation for part 20463’’. ■ 130. Amend § 9033.11 as follows:
9004 continues to read as follows: ■ a. Revise the section heading;
PART 9033—ELIGIBILITY FOR
Authority: 26 U.S.C. 9004 and 9009(b). ■ b. Revise the paragraph heading of
PAYMENTS
paragraph (b);
§ 9004.6 [Amended] ■ 126. The authority citation for part ■ c. In the introductory text to
■ 117. Amend § 9004.6 as follows: 9033 continues to read as follows: paragraph (b)(1), add ‘‘or a record of
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/27.svg)
![Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules 76443
electronic transfer’’ after the words accompany the credit or debit card their deposit in the designated
‘‘canceled check negotiated by the contribution indicating that the campaign depository, such as a batch
payee’’.; contribution was made from each number’’ after the words ‘‘bank
■ d. In paragraphs (b)(1)(ii)(A) and (B), individual’s personal funds in the statements’’;
remove ‘‘documents’’ and add in its amount so attributed. ■ d. In paragraph (b)(5), remove ‘‘full-
place ‘‘records’’ wherever it appears; size photocopy of each unpaid check,
■ e. In the introductory text to § 9034.5 [Amended] and copies of’’ and add in its place
paragraph (b)(1)(iii) and paragraph ■ 134. Amend § 9034.5(c)(1) and (d) by ‘‘record that contains a complete image
(b)(1)(iv), remove ‘‘documentation’’ and removing ‘‘documentation’’ and adding of each unpaid check and’’; and
add in its place ‘‘record’’ wherever it in its place ‘‘records’’ wherever it ■ e. In paragraph (b)(6), remove ‘‘full-
appears; appears. size photocopy’’ and add in its place
■ f. In paragraph (b)(1)(iv), remove ‘‘the ‘‘record that contains a complete
§ 9034.6 [Amended] image’’.
payee’’ and add in its place ‘‘the payee
or the record of electronic transfer’’; ■ 135. Amend § 9034.6 as follows: ■ f. In paragraph (b)(7), remove
■ g. In paragraph (b)(2)(ii), add ‘‘or a ■ a. In paragraph (a)(1), remove ‘‘documentation’’ and add in its place
record of electronic transfer’’ after the ‘‘telephone service, typewriters, and ‘‘records’’ wherever it appears;
words ‘‘canceled check negotiated by computers’’ and add in its place
‘‘telephone and internet service, and § 9036.2 [Amended]
the payee’’;
computers or other electronic devices’’; ■ 142. Amend § 9036.2 as follows:
and ■ a. In paragraph (b)(1)(ii), remove
■ h. In paragraphs (b)(4) and (c), remove and
■ b. In paragraph (b)(3), remove ‘‘either solely in magnetic media from or
‘‘documentation’’ and add in its place in both printed and magnetic media
‘‘records’’ wherever it appears. ‘‘telephone service’’ and add in its place
‘‘telephone and internet service’’. forms’’ and add in its place ‘‘in printed
The revisions read as follows: or digital form or a combination of
§ 9033.11 Records of disbursements. § 9034.7 [Amended] printed and digital forms’’;
■ 136. Amend § 9034.7(b)(5)(iv) and (v) ■ b. In paragraph (b)(1)(iii), remove
* * * * *
by removing ‘‘documentation’’ and ‘‘checks returned unpaid’’ and add in its
(b) Records required. * * *
adding in its place ‘‘records’’ wherever place ‘‘checks returned unpaid or credit
* * * * * or debit card or other electronic
it appears.
§ 9033.12 [Amended] payment chargebacks’’;
§ 9034.8 [Amended] ■ c. In paragraph (b)(1)(vi), remove ‘‘as
■ 131. Amend § 9033.12 as follows: specified in the Computerized Magnetic
■ a. In paragraph (a), remove ■ 137. Amend § 9034.8(b)(4) by
removing ‘‘recordkeeping, reporting and Media Requirements’’ from the second
‘‘computerized magnetic media, such as sentence;
magnetic tapes or magnetic diskettes’’ documentation’’ and adding in its place
‘‘recordkeeping and reporting’’. ■ d. In paragraph (b)(1)(vi), remove
and add in its place ‘‘digital storage ‘‘shall provide the computer equipment
devices’’; PART 9035—EXPENDITURE and software needed to retrieve and
■ b. Remove paragraph (b) and
LIMITATIONS read the digital images, if necessary, at
redesignate paragraph (c) as paragraph no cost to the Commission, and’’ from
(b); and ■ 138. The authority citation for part the fourth sentence; and
■ c. In newly redesignated paragraph 9035 continues to read as follows: ■ e. In paragraphs (b)(1)(vi) and (vii),
(b), remove ‘‘documentation’’ and add Authority: 26 U.S.C. 9035 and 9039(b). remove ‘‘documentation’’ and add in its
in its place ‘‘records’’. place ‘‘records’’ wherever it appears.
§ 9035.1 [Amended]
PART 9034—ENTITLEMENTS ■ 139. Amend § 9035.1(c)(3) by § 9036.3 [Amended]
■ 132. The authority citation for part removing ‘‘documentation’’ and adding ■ 143. Amend the heading, introductory
9034 continues to read as follows: in its place ‘‘records’’. paragraph, and paragraphs (b), (b)(4),
and (d) of § 9036.3 by removing
Authority: 26 U.S.C. 9034 and 9039(b). PART 9036—REVIEW OF MATCHING ‘‘documentation’’ and adding in its
■ 133. Amend § 9034.2 as follows: FUND SUBMISSIONS AND place, ‘‘records’’ wherever it appears.
■ a. In paragraph (b), remove ‘‘and the CERTIFICATION OF PAYMENTS BY
COMMISSION § 9036.4 [Amended]
card number’’ from the last sentence;
■ b. In the introductory text to ■ 144. Amend § 9036.4(b)(4) by
paragraph (c), remove ‘‘and card ■ 140. The authority citation for part removing ‘‘documentation’’ and adding
number’’ from the last sentence; 9036 continues to read as follows: in its place ‘‘records’’.
■ c. In paragraph (c)(1)(i), remove Authority: 26 U.S.C. 9036 and 9039(b).
§ 9036.5 [Amended]
‘‘written document’’ and add in its place ■ 145. Amend § 9036.5(c)(1) by
§ 9036.1 [Amended]
‘‘writing’’; removing ‘‘documentation’’ and adding
■ d. In paragraph (c)(1)(iii), remove ■ 141. Amend § 9036.1 as follows:
■ a. In paragraph (b)(2), remove in its place ‘‘records’’ wherever it
‘‘documentation’’ and add in its place appears.
‘‘records’’; and ‘‘computerized magnetic media, such as
sradovich on DSK3GMQ082PROD with PROPOSALS2
■ e. Add paragraph (c)(8)(iii). magnetic tapes or magnetic diskettes’’
PART 9038—EXAMINATIONS AND
The addition reads as follows: and add in its place ‘‘digital storage
AUDITS
devices’’;
§ 9034.2 Matchable contributions. ■ b. In paragraphs (b)(3) and (4), remove ■ 146. The authority citation for part
* * * * * ‘‘documentation’’ and add in its place 9038 continues to read as follows:
(c) * * * ‘‘records’’ wherever it appears; Authority: 26 U.S.C. 9038 and 9039(b).
(8) * * * ■ c. In paragraph (b)(4), add ‘‘, or, for
(iii) To be attributed to more than one deposits made electronically, § 9038.1 [Amended]
person, a signed written statement must information associating contributions to ■ 147. Amend § 9038.1 as follows:
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/28.svg)
![76444 Federal Register / Vol. 81, No. 212 / Wednesday, November 2, 2016 / Proposed Rules
■ a. In the introductory text to § 9038.7 [Amended] ■ a. In paragraph (a)(3), remove
paragraph (b)(1), remove ‘‘the ■ 149. Amend § 9038.7 as follows: ‘‘documents’’ and add in its place
Commission may request additional or ■ a. In paragraph (a), remove ‘‘documents or records’’; and
updated computerized information’’ and ‘‘documents’’ and add in its place ■ b. In paragraph (b), remove
add in its place ‘‘the Commission may ‘‘documents, records,’’ wherever it ‘‘documentation’’ and add in its place
request additional or updated appears; and ‘‘records’’.
■ b. In paragraph (b)(2), remove ‘‘tapes’’
information’’; and
and add in its place ‘‘recordings’’ § 9039.3 [Amended]
■ b. In paragraphs (b)(1)(iv) and (c)(2), wherever it appears.
remove ‘‘documentation’’ and add in its ■ 152. Amend § 9039.3(b)(2)(vi) by
place ‘‘records’’ wherever it appears. PART 9039—REVIEW AND removing ‘‘documents’’ and adding in
INVESTIGATION AUTHORITY its place ‘‘records’’.
§ 9038.2 [Amended]
■ 150. The authority citation for part On behalf of the Commission,
■ 148. Amend § 9038.2(b)(3) by Dated: October 11, 2016.
9039 continues to read as follows:
removing ‘‘documentation’’ from the Matthew S. Petersen,
Authority: 26 U.S.C. 9039.
paragraph heading and adding in its Chairman, Federal Election Commission.
place ‘‘records’’. § 9039.2 [Amended] [FR Doc. 2016–25102 Filed 11–1–16; 8:45 am]
■ 151. Amend § 9039.2 as follows: BILLING CODE 6715–01–P
sradovich on DSK3GMQ082PROD with PROPOSALS2
VerDate Sep<11>2014 17:25 Nov 01, 2016 Jkt 241001 PO 00000 Frm 00030 Fmt 4701 Sfmt 9990 E:\FR\FM\02NOP2.SGM 02NOP2](https://thefederalregister.org/doc/81_FR_76628/page/29.svg)
Document Created: 2016-11-02 01:41:21
Document Modified: 2016-11-02 01:41:21
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Notice of proposed rulemaking. | |
| Dates | Comments must be received on or before December 2, 2016. The Commission will determine at a later date whether to hold a public hearing on this proposed rule. Anyone wishing to testify at such a hearing must file timely written comments and must include in the written comments a request to testify. If a hearing is to be held, the Commission will publish a document in the Federal Register announcing the date and time of the hearing. | |
| Contact | Mr. Neven F. Stipanovic, Acting Assistant General Counsel, or Ms. Jessica Selinkoff, Attorney, 999 E Street NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530. | |
| FR Citation | 81 FR 76416 | |
| CFR Citation | 11
CFR
100 11 CFR 102 11 CFR 103 11 CFR 104 11 CFR 105 11 CFR 106 11 CFR 108 11 CFR 109 11 CFR 110 11 CFR 111 11 CFR 112 11 CFR 114 11 CFR 116 11 CFR 1 11 CFR 200 11 CFR 201 11 CFR 2 11 CFR 300 11 CFR 4 11 CFR 5 11 CFR 6 11 CFR 7 11 CFR 9002 11 CFR 9003 11 CFR 9004 11 CFR 9007 11 CFR 9032 11 CFR 9033 11 CFR 9034 11 CFR 9035 11 CFR 9036 11 CFR 9038 11 CFR 9039 | |
| CFR Associated | Privacy; Elections; Political Committees and Parties; Reporting and Recordkeeping Requirements; Banks and Banking; Campaign Funds; Political Candidates; Coordinated and Independent Expenditures; Law Enforcement; Penalties; Business and Industry; Labor; Credit; Sunshine Act; Nonprofit Organizations; Freedom of Information; Archives and Records; Civil Rights; Individuals with Disabilities; Administrative Practice and Procedure and Conflict of Interests |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR