[Federal Register Volume 87, Number 173 (Thursday, September 8, 2022)]
[Proposed Rules]
[Pages 54915-54917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-19382]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 87, No. 173 / Thursday, September 8, 2022 / 
Proposed Rules  

[[Page 54915]]



FEDERAL ELECTION COMMISSION

11 CFR Parts 1, 4, 5, 6, 100, 102, 103, 104, 105, 106, 108, 109, 
110, 111, 112, 114, 116, 200, 201, 300, 9003, 9004, 9007, 9032, 
9033, 9034, 9035, 9036, 9038, and 9039

[NOTICE 2022-18]


Technological Modernization

AGENCY: Federal Election Commission.

ACTION: Request for additional comment.

-----------------------------------------------------------------------

SUMMARY: The Federal Election Commission is seeking additional public 
comment on previously proposed rules that would modernize the agency's 
regulations in light of technological advances in communications, 
recordkeeping, and financial transactions, and that would eliminate and 
update references to outdated technologies and address similar 
technological issues.

DATES: Comments must be submitted on or before October 11, 2022.

ADDRESSES: All comments must be in writing. Commenters may submit 
comments electronically via the Commission's website at http://sers.fec.gov/fosers/, reference REG 2013-01.
    Each commenter must provide, at a minimum, his or her first name, 
last name, city, and state. 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 
website 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: Ms. Amy L. Rothstein, Assistant 
General Counsel, or Ms. Joanna S. Waldstreicher or Mr. Tony Buckley, 
Attorneys, Office of the General Counsel, at [email protected].

SUPPLEMENTARY INFORMATION: The Federal Election Commission is seeking 
additional public comment on certain aspects of its prior proposals to 
modernize campaign finance regulations in light of technological 
advances. The Commission published its proposals in a Notice of 
Proposed Rulemaking (``NPRM'') on November 2, 2016.\1\ The Commission 
had previously issued an Advance Notice of Proposed Rulemaking 
(``ANPRM'') on the subject.\2\ The Commission received several public 
comments in response to both the ANPRM and the NPRM, which are 
available on the Commission website, at https://sers.fec.gov/fosers/search.htm (search for REG 2013-01).
---------------------------------------------------------------------------

    \1\ Technological Modernization, 81 FR 76416 (Nov. 2, 2016).
    \2\ Technological Modernization, 78 FR 25635 (May 2, 2013).
---------------------------------------------------------------------------

    The Commission is now seeking additional public comment about any 
technological developments that may have occurred following publication 
of the NPRM that would be relevant to the Commission's consideration of 
its proposed rules. In particular, the Commission is soliciting updated 
information regarding electronic payment processing, newer electronic 
payment technologies, and contributions made via prepaid cards, to 
ensure that its understanding of the relevant technologies and 
associated practices in these areas is up to date.

Payment Processing

    Several of the Commission's proposed rules relate to the standards 
and practices that vendors and payment processors use to process 
payments made by credit card, debit card, prepaid card, and other 
electronic payment methods such as text message and direct carrier 
billing. Some of the proposed rules also concern the methods by which 
vendors and payment processors verify a payor's identity, attribute 
payments, and collect, maintain, and transmit transaction records. The 
Commission seeks comment on whether practices in these areas have 
changed since publication of the NPRM in ways that would affect the 
applicability and utility of the proposed rules.
    The Commission also seeks additional comment on proposed revisions 
to its regulations regarding when a contribution initiated through 
electronic means is considered to be ``made'' and ``received.'' 
Specifically, in the NPRM the Commission proposed to revise 11 CFR 
110.1(b)(6), which describes when a contribution is ``made.'' As 
revised, it would state that ``[a] contribution made in an electronic 
transaction is considered to be made when the contributor authorizes 
the transaction,'' even if the contributor has not yet transmitted any 
funds. Similarly, the Commission proposed to revise 11 CFR 102.8(a) and 
(b)(2), which describe when a person ``receives'' a contribution for a 
political committee and must forward the contribution to the political 
committee's treasurer. As revised, the ``date of receipt'' of ``a 
contribution made in an electronic transaction in which the receipt of 
authorization precedes the receipt of funds'' would be the date the 
person ``obtains the contributor's authorization of the transaction.'' 
Finally, the Commission recognized that many electronically initiated 
contributions to political committees--including contributions made via 
text message or internet-based platforms--are first received by 
commercial entities that process the contributions electronically. 
Accordingly, the Commission proposed new 11 CFR 102.8(d), which would 
provide that ``[e]very 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 [forwarding] requirements . . . if such 
person transmits funds and contributor information to the recipient 
political committee within the time periods prescribed,'' even if the 
payment processor has not yet received any funds from the contributor.
    The Commission received one comment on these proposals. The 
commenter, a wireless communication industry trade association, opposed 
the proposals as applied to wireless companies involved in direct 
carrier billing.\3\ The commenter stated that

[[Page 54916]]

``[w]ireless companies do not front--in the ordinary course of 
business--money to merchants, political committees, or other designated 
recipients of funds before the customer pays his or her wireless 
bill,'' and asserted that ``[a]ny regulatory requirement that would 
force money to be transferred to political committees sooner than 
standard business practices dictate will preclude wireless carriers 
from offering DCB as a means of processing political contributions.'' 
\4\ The commenter characterized these proposals as effectively 
``overturn[ing] the conclusion in the m-Qube advisory opinion--and 
preclud[ing] political contributions made by the processes approved 
therein.'' \5\
---------------------------------------------------------------------------

    \3\ The commenter described direct carrier billing as ``a 
payment process . . . which enables consumers to purchase goods and 
services by charging them to a wireless bill.'' CTIA, Comment at 1 
(Dec. 2, 2016), REG 2013-01.
    \4\ CTIA, Comment at 9.
    \5\ Id. In Advisory Opinion 2012-17 (Red Blue T, Armour Media, 
m-Qube), which concerned the use of text messaging to raise funds 
for political committees, the Commission concluded that ``[u]nder 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.'' Advisory Opinion 2012-17 (Red Blue T, 
Armour Media, m-Qube) at 6. The Commission further concluded that 
``because m-Qube's factored payments will be extensions of credit 
under 11 CFR part 116,'' the payments would not constitute 
prohibited corporate contributions by m-Qube. Id. at 9. 
Consequently, because ``the factored payments are extensions of 
credit by m-Qube in the ordinary course of business and are not 
contributions that m-Qube has received and forwarded, the factored 
payments do not trigger the forwarding requirements of [52 U.S.C. 
30102(b)] and 11 CFR 102.8.'' Id. at 10.
---------------------------------------------------------------------------

    The Commission invites additional comment on the proposed rules in 
light of these statements, and on current processes used by the 
wireless communication industry to process contributions to political 
committees. For example, how prevalent is direct carrier billing in 
processing payments generally, and contributions to political 
committees in particular? Under current processes, would these 
proposals, if adopted, require wireless carriers or other companies 
participating in processing contributions to depart from their standard 
business practices? Do wireless carriers or other companies typically 
extend credit to political committees and other customers as described 
in Advisory Opinion 2012-17 (Red Blue T, Armour Media, m-Qube)? Would 
the proposals present an obstacle to direct carrier billing or other 
methods wireless carriers use in processing political contributions? Do 
connection aggregators still engage in factoring as described in 
Advisory Opinion 2012-17 (Red Blue T, Armour Media, m-Qube)? What other 
post-NPRM developments in the processing of electronic payments should 
the Commission consider?

Electronic Payment Technologies

    Some of the Commission's proposed rules also relate to newer 
electronic payment methods such as PayPal, Venmo, BitPay, Square, and 
other electronic wallet, swipe P2P, mobile app, and social media 
payment platforms. The Commission seeks comment on whether practices in 
these areas have changed since publication of the NPRM in ways that 
would affect the applicability and utility of the proposed rules. The 
Commission also seeks comment on whether additional new methods of 
electronic payment have been developed or become more commonly used, 
that would be affected by the existing or proposed rules in ways that 
the Commission has not yet considered.

Contributions by Prepaid Cards

    The Commission also proposed revisions to its regulations with 
respect to contributions made by prepaid cards. Like currency, prepaid 
cards are easily transferable and relatively untraceable. They are not 
linked to a customer's identity, and they are not associated with a 
depository institution and thus are not subject to those institutions' 
``know-your-customer'' obligations under federal law.
    Accordingly, the Commission proposed to update its rules to apply 
the limitations on contributions of cash or currency at 11 CFR 110.4(c) 
to contributions made by prepaid cards, to clarify that a ``cash 
contribution'' includes a contribution made using a prepaid card. The 
Commission also proposed 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 new 11 
CFR 110.4(c)(4).
    The Commission received one comment on this proposal. The 
commenter, a non-connected political committee that processes 
electronic contributions, opposed treating prepaid cards differently 
from other electronic contributions.\6\ The commenter acknowledged that 
prepaid cards could be used to evade campaign finance regulations, but 
pointed out that ``[n]o online contribution is ever made without the 
contributor providing identifying information.'' \7\ The commenter 
further stated that a ``committee to whom the card number is presented 
online for payment is unlikely to know that it is a prepaid card.'' \8\ 
The Commission requests feedback on these two statements by this 
commenter. First, as a practical matter, are online contributions made 
by prepaid cards always accompanied by sufficient identifying 
information about the contributor to enable recipient political 
committees to fulfill their reporting obligations and avoid accepting 
prohibited contributions? Are there any ways in which the process of 
making a contribution using a prepaid card differs from the process of 
making a contribution using a credit card, such as the information 
collected or the way the card number is provided? Second, are recipient 
political committees actually able to determine whether online 
contributions are made using prepaid cards? How do (or could) they make 
that determination?
---------------------------------------------------------------------------

    \6\ ActBlue, Comment at 3 (June 3, 2013), REG 2013-01.
    \7\ Id. at 6.
    \8\ Id.
---------------------------------------------------------------------------

    The same commenter also stated that it ``would not be practical to 
expect that the payment industry would limit all transactions using 
these cards to $100 to accommodate campaign finance regulations.'' \9\ 
The Commission's understanding, however, is that prepaid card issuers 
are able to exclude certain categories of merchants from receiving 
payments made by prepaid cards.\10\ Is this understanding accurate? Do 
prepaid card issuers, in fact, exclude certain categories of merchants 
from receiving payments made by prepaid cards? Could political 
committees, as a category of merchants, use this or another mechanism 
(such as partial authorization) to decline contributions made by 
prepaid cards either entirely or in excess of $100? The Commission is 
interested in how this might work in practice. For example, does 
Merchant Category Code 8651 (``political organizations'') cover all 
political committees (including separate segregated funds, party 
committees, and nonconnected committees), or only a

[[Page 54917]]

subset? \11\ Is it possible to exclude political committees without 
also excluding any non-political committees that might also fall under 
MCC 8651? Who would request the political committees' exclusion, and 
who would be responsible for putting their exclusion into effect?
---------------------------------------------------------------------------

    \9\ Id.
    \10\ See, e.g., Visa, Visa Core Rules and Visa Product and 
Service Rules 258 (2022), https://www.visa.com.bs/content/dam/VCOM/download/about-visa/visa-rules-public.pdf (indicating that selective 
authorization may be based on criteria including merchant category 
classification); Visa Merchant Data Standards Manual, Visa Supp. 
Requirements 101 (2021), visa-merchant-data-standards-manual.pdf 
(listing ``political organizations'' as Merchant Category Code 
8651); see also U.S. Dept. of Labor, Description for 8651: Political 
Organizations [verbar] Occupational Safety and Health Administration 
(osha.gov) (describing ``political organizations'' in SIC 8651 as 
including ``Political Action Committees (PACs),'' ``Political 
campaign organizations,'' and ``Political fundraising (except on a 
contract or fee basis'')).
    \11\ See Visa Merchant Data Standards Manual, Visa Supp. 
Requirements 101 (2021), visa-merchant-data-standards-manual.pdf 
(listing ``political organizations'' as Merchant Category Code 
8651).
---------------------------------------------------------------------------

    What other means do political committees have to limit or decline 
contributions made by prepaid cards? Can individual merchants set 
limits on the amounts of payments they will accept using prepaid cards? 
Are there other factors relating to the mechanisms of prepaid card 
transactions that the Commission should take into consideration?
    Finally, the Commission invites comments on whether it should 
consider any other post-NPRM developments in the processing of 
electronic payments in general, or prepaid cards in particular, before 
promulgating final rules.

Conclusion

    The Commission's goal in this rulemaking is to promulgate final 
rules that are flexible enough to encompass both traditional and 
electronic forms of payments and communications, and that remain 
relevant as new forms of information storage and payment methods emerge 
in the future. Accordingly, the Commission welcomes comment on any 
other recent innovations in technologies used for recordkeeping, 
payment processing, or communications that would affect issues 
addressed by this rulemaking.

    Dated: August 31, 2022.

    On behalf of the Commission.
Allen J. Dickerson,
Chairman, Federal Election Commission.
[FR Doc. 2022-19382 Filed 9-7-22; 8:45 am]
BILLING CODE 6715-01-P