Federal Register / Vol. 87, No. 114 / Tuesday, June 14, 2022 / Rules and Regulations 35863 

1The court stayed its vacatur of the rule for 45 

days from the date of the order. 

to clarify that the regulations do not 

apply to legal proceedings in which the 

DNFSB or United States is not a party. 

In the direct final rule, the DNFSB 

stated that if no significant adverse 

comments were received, the direct 

final rule would become effective on 

July 14, 2022. The DNFSB received no 

comments, and the direct final rule will 

become effective as scheduled. 

Dated: June 9, 2022. 

Joyce Connery, 

Chair. 

[FR Doc. 2022–12784 Filed 6–13–22; 8:45 am] 

BILLING CODE 3670–01–P 

FEDERAL ELECTION COMMISSION 

11 CFR Part 109 

[Notice 2022–13] 

Reporting Independent Expenditures 

AGENCY: Federal Election Commission. 

ACTION: Interim final rule. 

SUMMARY: The Federal Election 

Commission is removing a regulation 

requiring that certain persons making 

independent expenditures disclose on 

their reports the identification of each 

person who made a contribution over 

$200 to the persons filing such reports 

‘‘for the purpose of furthering the 

reported independent expenditure.’’ 

The Commission is taking this action to 

comply with the decision of the United 

States Court of Appeals for the District 

of Columbia Circuit, which affirmed a 

district court decision holding that the 

disclosure regulation was invalid. The 

Commission is accepting comments on 

this revision to its regulation and any 

comments received may be addressed in 

a subsequent rulemaking document. 

Further information is provided in the 

SUPPLEMENTARY INFORMATION that 

follows. 

DATES: The interim final rule is effective 

on September 30, 2022. Comments must 

be received on or before July 14, 2022. 

ADDRESSES: All comments must be in 

writing. Commenters are encouraged to 

submit comments electronically via the 

Commission’s website at https://

sers.fec.gov/fosers/, reference REG 

2020–05. Alternatively, commenters 

may submit comments in paper form, 

addressed to the Federal Election 

Commission, Attn.: Mr. Robert M. Knop, 

Assistant General Counsel, 1050 First 

Street NE, Washington, DC 20463. 

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: Mr. 

Robert M. Knop, Assistant General 

Counsel, or Ms. Joanna S. 

Waldstreicher, Attorney, 1050 First 

Street NE, Washington, DC 20463, (202) 

694–1650 or (800) 424–9530. 

SUPPLEMENTARY INFORMATION: The 

Federal Election Campaign Act (the 

‘‘Act’’) provides that any person that is 

not a political committee and that 

makes independent expenditures 

aggregating in excess of $250 per 

calendar year must file a statement 

containing certain information about the 

funds they received and spent, 

including identifying each person (other 

than a political committee) whose 

contributions to the person filing such 

statement aggregated in excess of $200 

within the calendar year, together with 

the date and amount of such 

contribution. 52 U.S.C. 30104(c)(1); see 

also 52 U.S.C. 30104(b)(3)(A). The Act 

also provides that the statement must 

identify ‘‘each person who made a 

contribution in excess of $200 to the 

person filing such statement which was 

made for the purpose of furthering an 

independent expenditure.’’ 52 U.S.C. 

30104(c)(2)(C). 

To implement these and other 

independent expenditure reporting 

provisions of the Act, the Commission 

promulgated the regulation at 11 CFR 

109.10, requiring that ‘‘[e]very person 

that is not a political committee and that 

makes independent expenditures 

aggregating in excess of $250 with 

respect to a given election in a calendar 

year shall file a verified statement or 

report . . .’’ including certain 

information about the expenditures and 

‘‘[t]he identification of each person who 

made a contribution in excess of $200 

to the person filing such report, which 

contribution was made for the purpose 

of furthering the reported independent 

expenditure.’’ 11 CFR 109.10(b), 

(e)(1)(vi). 

On Aug. 3, 2018, the United States 

District Court for the District of 

Columbia Circuit held that the 

regulation at 11 CFR 109.10(e)(1)(vi) is 

invalid because it conflicts with the 

terms of the statute, which ‘‘mandate 

significantly more disclosure than that 

required by the challenged regulation.’’ 

CREW v. FEC, 316 F. Supp. 3d 349, 410 

(D.D.C. 2018). The district court held 

that 52 U.S.C. 30104(c)(1) ‘‘plainly 

requires broader disclosure than just 

those donors making contributions for 

the purposes of funding the 

independent expenditures made by the 

reporting entity.’’ Id. at 389. The district 

court further held that the regulation 

‘‘substantially narrows subsection 

(c)(2)’’ of the statute, id. at 394, and that 

‘‘the challenged regulation’s 

substitution of ‘the reported’ for ‘an’ is 

not in accord with the statutory text.’’ 

Id. at 406. The district court therefore 

vacated the regulation, effective 

September 17, 2018. Order, CREW v. 

FEC, No. 16–259 (Aug. 3, 2018) at 2.1

Shortly after the vacatur of the 

regulation became effective, the 

Commission issued guidance on how 

persons other than political committees 

should report their independent 

expenditures following the court’s 

decision, available at: https://

www.fec.gov/updates/fec-providesguidance-following-us-district-courtdecision-crew-v-fec-316-f-supp-3d-349- 

ddc-2018/. 

On August 21, 2020, the U.S. Court of 

Appeals for the District of Columbia 

Circuit affirmed the district court’s 

decision. CREW v. FEC, 971 F.3d 340 

(D.C. Cir 2020). The D.C. Circuit found 

that 11 CFR 109.10 ‘‘disregards [52 

U.S.C. 30104](c)(1)’s requirement that IE 

makers disclose each donation from 

contributors who give more than $200 

. . . .’’ Id. at 350–51. It also found that 

the regulation ‘‘impermissibly narrows 

[52 U.S.C. 30104](c)(2)(C)’s requirement 

that contributors be identified if their 

donations are ‘made for the purpose of 

furthering an independent 

expenditure’ ’’ by requiring disclosure 

only of donations linked to a particular 

independent expenditure. Id. at 351. 

The court concluded that, because the 

statute ‘‘establishes a broader disclosure 

mandate than the [Commission’s] Rule 

ostensibly implementing it, the Rule is 

invalid.’’ Id. at 356. 

Commissioners have previously made 

efforts to reach consensus on revising 

the regulatory description of the 

reporting requirements, but were unable 

to find agreement by the required four 

affirmative votes. 

In order to conform with the court 

opinion, the Commission is now 

striking 11 CFR 109.10(e)(1)(vi). The 


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35864 Federal Register / Vol. 87, No. 114 / Tuesday, June 14, 2022 / Rules and Regulations 

Commission is adding a note to 11 CFR 

109.10(e)(1) citing to the District Court 

and Court of Appeals decisions relating 

to this matter stating that the statutory 

provision at 52 U.S.C. 30104(c) remains 

in force. 

The Commission is issuing this rule 

as an interim final rule. This interim 

final rule will take effect thirty 

legislative days after its transmittal to 

Congress. See 52 U.S.C. 30111(d). The 

Commission welcomes public comment 

on this interim final rule and may 

address any comments received in a 

later rulemaking. 

The Administrative Procedure Act 

(‘‘APA’’) requires an agency 

promulgating regulations to publish a 

notice of a proposed rulemaking in the 

Federal Register. 5 U.S.C. 553(b). The 

notice requirement does not apply, 

however, ‘‘when the agency for good 

cause finds (and incorporates the 

finding and a brief statement of reasons 

therefor in the rules issued) that notice 

and public procedure thereon are 

impracticable, unnecessary, or contrary 

to the public interest.’’ 5 U.S.C. 

553(b)(B). According to the APA’s 

legislative history, a situation is 

‘‘impracticable’’ when ‘‘the due and 

required execution of the agency 

functions would be unavoidably 

prevented by its undertaking public 

rule-making proceedings.’’ See 

Administrative Procedure Act: 

Legislative History, S. Doc. No. 248 79– 

258 (1946); see also Attorney General’s 

Manual on the Administrative 

Procedure Act 15 (1947). 

‘‘ ‘Unnecessary’ means unnecessary so 

far as the public is concerned, as would 

be the case if a minor or merely 

technical amendment in which the 

public is not particularly interested 

were involved.’’ Id. ‘‘Contrary to the 

public interest’’ connotes a situation in 

which the interest of the public would 

be defeated by any requirement of 

advance notice. Id. 

The notice to remove 11 CFR 

109.10(e)(1)(vi) is unnecessary because 

that regulatory provision that has 

already been invalidated by a federal 

court and cannot be enforced. 5 U.S.C. 

553(b)(B). Removing this provision from 

the regulations does not involve any 

exercise of discretion by the 

Commission. Moreover, because this 

provision is already unenforceable, the 

Commission’s action will not affect the 

rights or interests of any person or 

entity, nor could the public notice and 

comment period benefit the 

Commission in this rulemaking. 

In addition, a notice and comment 

period may be contrary to the public 

interest. The Commission notes that the 

2022 elections for federal office are 

scheduled to take place on November 8, 

2022. Although, as noted above, the 

Commission previously issued guidance 

on reporting requirements to the 

regulated community, the fundamental 

part of that guidance should be reflected 

in the Commission’s regulation as soon 

as possible before the general election. 

In addition, because this interim final 

rule is exempt from the notice and 

comment procedure under 5 U.S.C. 

553(b), the Commission is not required 

to conduct a regulatory flexibility 

analysis under 5 U.S.C. 603 and 604 

(Regulatory Flexibility Act). See 5 

U.S.C. 601(2) and 604(a). 

List of Subjects in 11 CFR Part 109 

Coordinated and independent 

expenditures. 

For the reasons set out in the 

preamble, the Commission is amending 

11 CFR part 109 as follows: 

PART 109—COORDINATED AND 

INDEPENDENT EXPENDITURES (52 

U.S.C. 30101(17), 30116(a) AND (d), 

AND PUBLIC LAW 107–155 SEC. 

214(C)) 

■ 1. The authority citation for part 109 

continues to read as follows: 

Authority: 52 U.S.C. 30101(17), 30104(c), 

30111(a)(8), 30116, 30120; Sec. 214(c), Pub. 

L. 107–155, 116 Stat. 81. 

■ 2. Section 109.10 is amended by 

removing and reserving paragraph 

(e)(1)(vi) and by adding a note to 

paragraph (e)(1). 

The addition reads as follows: 

§ 109.10 How do political committees and 

other persons report independent 

expenditures? 

* * * * * 

(e) * * * 

(1) * * * 

Note to § 109.10(e)(1): On August 3, 2018, 

the United States District Court for the 

District of Columbia vacated 11 CFR 

109.10(e)(1)(vi). CREW v. FEC, 316 F. Supp. 

3d 349 (Aug. 3, 2018), aff’d, 971 F.3d 340 

(D.C. Cir. 2020). Section 30104(c) of title 52 

of the U.S. Code and the remaining 

provisions of 11 CFR 109.10 remain in force. 

* * * * * 

Dated: June 8, 2022. 

On behalf of the Commission, 

Allen J. Dickerson, 

Chairman, Federal Election Commission. 

[FR Doc. 2022–12771 Filed 6–13–22; 8:45 am] 

BILLING CODE 6715–01–P 

BUREAU OF CONSUMER FINANCIAL 

PROTECTION 

12 CFR Part 1002 

Consumer Financial Protection 

Circular 2022–03: Adverse Action 

Notification Requirements in 

Connection With Credit Decisions 

Based on Complex Algorithms 

AGENCY: Bureau of Consumer Financial 

Protection. 

ACTION: Consumer financial protection 

circular. 

SUMMARY: The Consumer Financial 

Protection Bureau (Bureau or CFPB) has 

issued Consumer Financial Protection 

Circular 2022–03, titled, ‘‘Adverse 

Action Notification Requirements in 

Connection with Credit Decisions Based 

on Complex Algorithms.’’ In this 

circular, the Bureau responds to the 

question, ‘‘When creditors make credit 

decisions based on complex algorithms 

that prevent creditors from accurately 

identifying the specific reasons for 

denying credit or taking other adverse 

actions, do these creditors need to 

comply with the Equal Credit 

Opportunity Act’s requirement to 

provide a statement of specific reasons 

to applicants against whom adverse 

action is taken?’’ 

DATES: The Bureau released this circular 

on its website on May 26, 2022. 

ADDRESSES: Enforcers, and the broader 

public, can provide feedback and 

comments to Circulars@cfpb.gov. 

FOR FURTHER INFORMATION CONTACT: 

Christopher Davis, Attorney-Advisor, 

Office of Fair Lending and Equal 

Opportunity, at (202) 435–7000. If you 

require this document in an alternative 

electronic format, please contact CFPB_

Accessibility@cfpb.gov. 

SUPPLEMENTARY INFORMATION: 

Question Presented 

When creditors make credit decisions 

based on complex algorithms that 

prevent creditors from accurately 

identifying the specific reasons for 

denying credit or taking other adverse 

actions, do these creditors need to 

comply with the Equal Credit 

Opportunity Act’s (ECOA’s) 

requirement to provide a statement of 

specific reasons to applicants against 

whom adverse action is taken? 

Response 

Yes. ECOA and Regulation B require 

creditors to provide statements of 

specific reasons to applicants against 

whom adverse action is taken. Some 

creditors may make credit decisions 

based on certain complex algorithms, 


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