Civil Monetary Penalties Inflation Adjustments, 31345-31349 [E9-15483]
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31345
Rules and Regulations
Federal Register
Vol. 74, No. 125
Wednesday, July 1, 2009
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
this change as soon as practicable but no
later than the first pay period in August.
Gregory T. Long,
Executive Director, Federal Retirement Thrift
Investment Board.
[FR Doc. E9–15536 Filed 6–30–09; 8:45 am]
BILLING CODE 6760–01–P
FEDERAL ELECTION COMMISSION
FEDERAL RETIREMENT THRIFT
INVESTMENT BOARD
11 CFR Part 111
[Notice 2009–09]
5 CFR Part 1600
Employee Contribution Elections and
Contribution Allocations
Interim final rule with request
for comments.
ACTION:
SUMMARY: The Federal Retirement Thrift
Investment Board (Agency) is
announcing the effective date of its
regulation published on June 19, 2009
(74 FR 29111) pertaining to the timing
of agency contributions.
DATES: Effective Date: The Agency’s
interim final rule published on June 19,
2009 (74 FR 29111) took effect on June
22, 2009 when President Obama signed
HR 1256 (Pub. L. 111–31) which
contained the Thrift Savings Plan
Enhancement Act of 2009 (Act).
FOR FURTHER INFORMATION CONTACT:
Laurissa Stokes at (202) 942–1645.
The Act
provides that Agency Automatic (1%)
Contributions and Agency Matching
Contributions shall commence
immediately. The regulatory
amendment is necessary because FRTIB
regulations follow current law, which
provides that Agency Automatic (1%)
Contributions and Agency Matching
Contributions shall not commence until
the equivalent of the second open
season that begins after the employee
commenced employment. The FRTIB is
setting a August 1, 2009 effective date
for this regulation to allow employing
agencies sufficient time to make the
necessary computer programming
changes to implement it. The regulation
took effect on June 22, 2009, and
employing agencies must implement
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14:55 Jun 30, 2009
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Federal Election Commission.
Final rules.
AGENCY:
ACTION:
AGENCY: Federal Retirement Thrift
Investment Board.
SUPPLEMENTARY INFORMATION:
Civil Monetary Penalties Inflation
Adjustments
SUMMARY: In accordance with the
Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended,
the Federal Election Commission is
adopting final rules to apply inflation
adjustments to certain civil monetary
penalties under the Federal Election
Campaign Act of 1971, as amended
(‘‘FECA’’), the Presidential Election
Campaign Fund Act, and the
Presidential Primary Matching Payment
Account Act. The civil penalties being
adjusted are for certain violations of
these statutes that are not knowing and
willful, involving contributions and
expenditures; knowing and willful
violations of the prohibition against the
making of a contribution in the name of
another; knowing and willful violations
of the confidentiality provisions of
FECA; certain penalties for late filed or
non-filed reports under the
administrative fines program; and
failure to file timely 48-hour notices.
The adjusted civil monetary penalties
are calculated according to the formula
set forth in the law and will be effective
for violations occurring on or after the
effective date of these rules. Further
information is provided in the
supplementary information that follows.
DATES: Effective on July 1, 2009.
FOR FURTHER INFORMATION CONTACT: Mr.
Robert M. Knop, Assistant General
Counsel, or Ms. Cheryl A.F. Hemsley, or
Ms. Jessica Selinkoff, Attorneys, 999 E
Street, NW., Washington, DC 20463,
(202) 694–1650 or (800) 424–9530.
SUPPLEMENTARY INFORMATION: The
Federal Civil Penalties Inflation
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Adjustment Act of 1990, as amended,1
(the ‘‘Inflation Adjustment Act’’)
requires Federal agencies to adjust for
inflation the civil monetary penalties
within their jurisdiction at least once
every four years according to detailed
formulae. A civil monetary penalty
(‘‘civil penalty’’) is defined in the
Inflation Adjustment Act as any penalty,
fine, or other sanction that is for a
specific amount, or has a maximum
amount, as provided by Federal law,
and is assessed or enforced by an agency
in an administrative proceeding or by a
Federal court pursuant to Federal law.2
Further, the Inflation Adjustment Act
contains a 10% penalty cap on the first
adjustment of any civil penalty. That is,
the first adjustment made to the civil
penalty may not exceed 10% of the
starting civil penalty.3 Under the
Federal Election Campaign Act of 1971
(‘‘FECA’’), as amended, 2 U.S.C. 431 et
seq., the Federal Election Commission
(‘‘Commission’’) has jurisdiction over
several civil penalties for respondents
who violate FECA, the Presidential
Election Campaign Fund Act, 26 U.S.C.
9001 et seq., or the Presidential Primary
Matching Payment Account Act, 26
U.S.C. 9031 et seq. (‘‘chapters 95 and 96
of Title 26’’). These rules fulfill the
Commission’s non-discretionary
obligation under the Inflation
Adjustment Act to adjust for inflation,
according to the prescribed formula, the
civil monetary penalties (‘‘civil
penalties’’) within its jurisdiction.
Immediate Effectiveness of Final Rule
The Commission is required by
statute to adjust the civil penalties
under its jurisdiction by a Cost of Living
Adjustment (‘‘COLA’’) formula. This
application of the COLA does not
involve Commission discretion or any
policy judgments. Thus, the
Commission finds that the ‘‘good cause’’
exception to the notice and comment
requirement in section 553 of the
Administrative Procedures Act applies
to these rules because notice and
comment are unnecessary. 5 U.S.C.
553(b)(B) and (d)(3).
For the same reasons, these rules do
not need to be submitted to the Speaker
1 28 U.S.C. 2461 note, as amended by Debt
Collection Improvement Act of 1996, Public Law
104–134, 110 Stat. 1321–73, sec. 31001(s)(1) (1996);
Public Law 105–362, 112 Stat. 3293 (1998).
2 28 U.S.C. 2461 note (3)(2).
3 28 U.S.C. 2461 note (7).
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Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations
of the House of Representatives or the
President of the Senate under the
Congressional Review Act, 5 U.S.C. 801
et seq., and these rules are effective
upon publication. 5 U.S.C. 808(2).
Accordingly these amendments are
effective on July 1, 2009. The new civil
penalties are applicable only to
violations that occur after this effective
date.
Explanation and Justification
Under the Inflation Adjustment Act,
the Commission must adjust civil
penalties by a COLA defined as the
percentage by which the U.S.
Department of Labor’s Consumer Price
Index for all urban consumers (‘‘CPI’’)
for June of the year preceding the
adjustment exceeds the CPI for June of
the year in which each civil penalty was
last set or adjusted.4 The amount of the
resulting increase is then subject to
rounding rules based on the size of the
civil penalty.5 The Inflation Adjustment
Act imposes a 10% cap on the first
adjustment under its rules, but no cap
on subsequent adjustments.
The Commission has previously
applied the Inflation Adjustment Act
formulae to its civil penalties in 1997,
CFR
CFR
CFR
CFR
CFR
1. 111.24—Civil Penalties (2 U.S.C.
437g(a)(5), (6), (12), 28 U.S.C. 2461 nt.)
FECA provides for civil penalties for
any person who violates any portion of
FECA or chapters 95 and 96 of Title 26.
FECA’s civil penalties, found at 2 U.S.C.
437(g)(a)(5), (6), and (12), are organized
into two tiers: One tier of civil penalties
for violations of FECA or chapters 95
and 96 of Title 26, and a higher tier of
civil penalties for ‘‘knowing and
willful’’ violations of FECA or chapters
95 and 96 of Title 26. Commission
regulations in section 111.24 set forth
each civil penalty established by section
437g(a)(5), (6), and (12), as adjusted
pursuant to the Inflation Adjustment
Act.
Example
The following is a detailed example of
the application of the Inflation
Previous
civil penalty
Section
11
11
11
11
11
2002, and 2005.6 As explained in more
detail below, the Commission has
determined that the Inflation
Adjustment Act now requires the
Commission to adjust all civil penalties
in 11 CFR 111.24 and some civil
penalties in 11 CFR 111.43. The civil
penalties in 11 CFR 111.44 will not
change because of the rounding rules.
111.24(a)(1) ....................................
111.24(a)(2)(i) ................................
111.24(a)(2)(ii) ................................
111.24(b) ........................................
111.24(b) ........................................
Note that the civil penalties in 11 CFR
111.24(a)(2)(i) and (b) have not been
adjusted since 1997 because application
of the rounding rules resulted in no
change when adjustments were
examined in 2002 and 2005.
2. 11 CFR 111.43—Schedule of Penalties
FECA permits the Commission to
assess civil penalties for violations of
the reporting requirements of 2 U.S.C.
434(a) in accordance with schedules of
penalties established and published by
the Commission. 2 U.S.C. 437g(a)(4)(C).
Each schedule contains two columns,
one for penalties for late-filed reports
and one for penalties for non-filed
4 28
U.S.C. 2461 note (5)(b).
U.S.C. 2461 note (5)(a). The rounding rules
applicable to the Commission’s civil penalties
require that if the existing penalty is less than or
equal to $100, the increase is rounded to the nearest
$10; if the existing penalty is greater than $100 but
less than or equal to $1,000, the increase is rounded
to the nearest $100; if the existing penalty is greater
than $1,000 but less than or equal to $10,000, the
increase is rounded to the nearest $1,000; and if the
5 28
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$6,500
11,000
55,000
2,200
6,500
Last
adjusted
2005
1997
2005
1997
2005
Adjustment Act formulae to FECA civil
penalties. The $5,000 civil penalties
provided for in 2 U.S.C. 437g(a)(5)(A),
(6)(A), and (6)(B) are implemented by
the regulations at 11 CFR 111.24(a)(1) at
their 2005 level of $6,500. See 2005
Adjustment, 70 FR at 34634; 1997
Adjustment, 62 FR at 11316. To
determine the 2009 adjustment, the CPI
for June 2008 (218.815) is divided by the
CPI for June 2005, the year the civil
penalty was last adjusted (194.5), for a
COLA of 1.125. Next, the raw inflation
adjustment is determined by
multiplying the present civil penalty
($6,500) by the COLA increase (0.125)
for a raw increase of $812.50. The result
is rounded to $1,000. Finally, the
rounded increase is added to the civil
penalty, for a new section 111.24(a)(1)
civil penalty of $7,500.
Using the same Inflation Adjustment
Act formulae, the Commission must also
adjust other civil penalties in 11 CFR
111.24. Since each of these civil
penalties has been previously adjusted,
the 10% cap for first time adjustments
does not apply to any of them. The
complete list of all civil penalty
adjustments in section 111.24 is as
follows:
Raw
increase
COLA increase
0.125
0.365
0.125
0.365
0.125
(218.815/194.5)
(218.815/160.3)
(218.815/194.5)
(218.815/160.3)
(218.815/194.5)
$812.50
4,015
6,875
803
812.50
Rounded to
$1,000
5,000
5,000
1,000
1,000
New civil
penalty
$7,500
16,000
60,000
3,200
7,500
reports. Reports are considered to be
late-filed if they are filed after their due
date under 11 CFR 104.5 but before a
date certain which is determined by
whether the reports are electionsensitive or not.7 Reports are considered
not filed if they either are filed after that
date certain or are not filed at all. See
11 CFR 111.43(e).
The Commission first promulgated
two schedules of penalties for late filing
violations in 2000 in 11 CFR 111.43(a)
and (b), for non-election-sensitive
reports and election-sensitive reports,
respectively. Explanation and
Justification for Final Rules on
Administrative Fines, 65 FR 31787 (May
19, 2000). The penalty calculations were
based on the ‘‘level of activity,’’ as
defined in the 2000 regulations at 11
CFR 111.43(d), reported by the latefiling committee. Additionally, the
Commission promulgated a civil penalty
of $5,500 at 11 CFR 111.43(c) for
situations in which a committee fails to
file a report and there is no ‘‘estimated
level of activity,’’ on which the
Commission can base a civil penalty
thereby making it impossible for the
Commission to calculate the level of
activity.
In 2003, the Commission reevaluated
the administrative fines program and
decided to reduce the civil penalties in
existing penalty is greater than $10,000 but less
than or equal to $100,000, the increase is rounded
to the nearest $5,000.
6 See Explanation and Justification for Final Rules
on Inflation Adjustments for Civil Monetary
Penalties, 70 FR 34633 (June 15, 2005) (‘‘2005
Adjustment’’); Explanation and Justification for
Final Rules on Adjustments to Civil Monetary
Penalty Amounts, 62 FR 11316 (Mar. 12, 1997)
(‘‘1997 Adjustment’’). In January 2002, the rounding
rules resulted in no adjustments. Agenda Doc. 02–
06 (Jan. 17, 2002).
7 Election-sensitive reports are those due just
before an election. See 11 CFR 111.43(d)(1). The
dissemination of information in these reports has
the most meaningful impact because they are filed
in proximity to an election. Accordingly, the
schedule of penalties imposes a higher civil penalty
for these reports than for all other reports, which
are non-election-sensitive.
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section 111.43(a) and (b) applicable to
reports containing under $50,000 in
activity. It also repromulgated the
remaining civil penalties. See
Explanation and Justification for Final
Rules on Administrative Fines, 68 FR
12572 (Mar. 17, 2003) (‘‘2003 Rules’’).
Accordingly, the civil penalties for
reports due on or after April 16, 2003
were set forth in new schedules at 11
CFR 111.43(a)(2) (non-electionsensitive) and 11 CFR 111.43(b)(2)
(election-sensitive). The penalty
schedules for previous reports were
located in 11 CFR 111.43(a)(1) (nonelection-sensitive) and 111.43(b)(1)
(election-sensitive). The Commission
also revised its definitions for ‘‘level of
activity’’ and ‘‘estimated level of
activity’’ for reports due on or after
April 16, 2003.
The Commission has now determined
that there is no need to retain the preApril 2003 schedules at 11 CFR
111.43(a)(1) and (b)(1). Because the
statute of limitations for enforcement of
civil fines and penalties is five years
from the date when the claim first
accrued, a proceeding to enforce a civil
penalty for a report due before April 16,
2003 would need to have been
commenced before April 16, 2008. See
28 U.S.C. 2462. Accordingly, the
Commission is removing paragraphs
(a)(1) and (b)(1) from 11 CFR 111.43,
including both the old schedules and
the definitions for ‘‘level of activity’’
and ‘‘estimated level of activity’’
applicable to those schedules. Former
11 CFR 111.43(a)(2) and 11 CFR
111.43(b)(2) are being renumbered as 11
CFR 111.43(a) and 111.43(b),
respectively. Additionally, because the
removal of the old schedules at 11 CFR
111.43(a)(1) and (b)(1) obviates the need
to distinguish between different
definitions of ‘‘level of activity’’ and
‘‘estimated level of activity’’ for time
periods before or after the 2003 Rules,
the Commission is also moving, but not
changing the substance of, those
definitions from section 111.43(a)(2)
and (b)(2) to the general definition
section at 11 CFR 111.43(d). Finally, the
Commission is numbering each of the
definitions in section 111.43(d) for
clarity.
In addition to these technical changes,
the Commission must adjust the civil
penalties schedules in section 111.43(a)
and (b) pursuant to the Inflation
Adjustment Act. These civil penalties
schedules were set when the
Commission repromulgated them in the
2003 rulemaking. In 2005, the
Commission applied the Inflation
Adjustment Act formulae to the civil
penalties in section 111.43. Because of
the rounding rules, however, none of
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the penalties was adjusted. See 2005
Adjustment, 70 FR at 34635.
Accordingly, this is the first adjustment
of these civil penalties under the
Inflation Adjustment Act and the 10%
cap applies to any adjustments made.
To make the adjustments, the
Inflation Adjustment Act formula is
applied to each civil penalty in the
schedules to determine what, if any,
adjustment must be made. First, the CPI
for 2008 is divided by the CPI for June
of 2003 (218.815/183.7) to determine the
applicable COLA of 0.191. Then, each
civil penalty is multiplied by the COLA
to determine the amount of the
unrounded raw increase. Next, the
statutory rounding formula is applied to
that raw increase amount. The resulting
rounded increase is then added to the
current civil penalty to determine the
new raw civil penalty. Finally, the
statutory 10% penalty cap is applied as
necessary. Accordingly, if the new raw
civil penalty is larger than 110% of the
current civil penalty, the raw penalty is
adjusted downward to conform to that
penalty cap. The actual adjustment to
each civil penalty is shown in the
schedules in the rule text, below.
The Commission must also adjust the
$5,500 civil penalty provided for in
2000 in 11 CFR 111.43(c), and
repromulgated in 2003, which has not
been adjusted pursuant to the Inflation
Adjustment Act. To determine this
year’s adjustment, the CPI for June 2008
is divided by the CPI for June 2003
(218.815/183.7) for a COLA increase of
0.191. Next the $5,500 is multiplied by
the COLA for a raw increase of
$1,050.50, which is then rounded to
$1,000. Again, this first adjustment
pursuant to the Inflation Adjustment
Act is capped at 10 percent of the
original penalty ($5,500), for a new
section 111.43(c) civil penalty of $6,050.
3. 11 CFR 111.44—Schedule of Penalties
for 48-Hour Notices
Principal campaign committees are
required to report, within 48 hours of
receipt, any contributions of $1,000 or
more that are received after the 20th
day, but more than 48 hours before any
election. 2 U.S.C. 434(a)(6). FECA
permits the Commission to assess civil
penalties for violations of the 48-hour
notice reporting requirement. 2 U.S.C.
437g(a)(4)(C). The Commission last
adjusted the civil penalty for these
reporting violations in 2005 to $110 +
(.10 x amount of contribution(s) not
timely reported). See 2005 Adjustment,
70 FR at 34635; Explanation and
Justification for Final Rules on
Administrative Fines, 65 FR 31787,
31793 (May 19, 2000). To determine this
year’s adjustment, The CPI for June 2008
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31347
is divided by the CPI for June 2005
(218.815/194.5) for a COLA increase of
0.125. The civil penalty is then
multiplied by the COLA for a raw
increase of $13.75, which is then
rounded to $0. Accordingly, the civil
penalty in section 111.44 remains at
$110 + (.10 x amount of contribution(s)
not timely reported).
While the Commission is not making
any adjustments to the civil penalty in
11 CFR 111.44, it is correcting an
incorrect phrase in section 111.44(b).
Specifically, the phrase ‘‘civil money
penalty’’ is incomplete and is being
changed to ‘‘final civil money penalty.’’
Certification of No Effect Pursuant to 5
U.S.C. 605(b) (Regulatory Flexibility
Act)
The provisions of the Regulatory
Flexibility Act are not applicable to this
final rule because the Commission was
not required to publish a notice of
proposed rulemaking or to seek public
comment under 5 U.S.C. 553 or any
other laws. 5 U.S.C. 603(a) and 604(a).
Therefore, no regulatory flexibility
analysis is required.
List of Subjects in 1 CFR Part 111
Administrative practice and
procedures, Elections, Law enforcement,
Penalties.
■ For the reasons set out in the
preamble, the Federal Election
Commission amends subchapter A of
chapter I of title 11 of the Code of
Federal Regulations as follows:
PART 111—COMPLIANCE
PROCEDURE (2 U.S.C. 437g, 437d(a))
1. The authority citation for part 111
continues to read as follows:
■
Authority 2 U.S.C. 432(i), 437g, 437d(a),
438(a)(8); 28 U.S.C. 2461 nt.
2. Section 111.24 is amended by
revising paragraphs (a)(1), (a)(2)(i),
(a)(2)(ii) and (b) to read as follows:
■
§ 111.24 Civil Penalties (2 U.S.C.
437g(a)(5), (6), (12), 28 U.S.C. 2461 nt.).
(a) * * *
(1) Except as provided in paragraph
(a)(2) of this section, in the case of a
violation of the Act or chapters 95 or 96
of title 26 (26 U.S.C.), the civil penalty
shall not exceed the greater of $7,500 or
an amount equal to any contribution or
expenditure involved in the violation.
(2) * * *
(i) In the case of a knowing and
willful violation of the Act or chapters
95 or 96 of title 26 (26 U.S.C.), the civil
penalty shall not exceed the greater of
$16,000 or an amount equal to 200% of
any contribution or expenditure
involved in the violation.
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(ii) Notwithstanding paragraph
(a)(2)(i) of this section, in the case of a
knowing and willful violation of 2
U.S.C. 441f, the civil penalty shall not
be less than 300% of the amount of any
contribution involved in the violation
and shall not exceed the greater of
$60,000 or 1,000% of the amount of any
contribution involved in the violation.
(b) Any Commission member or
employee, or any other person, who in
violation of 2 U.S.C. 437g(a)(12)(A)
If the level of activity in the
report was:
$1–4,999.99
a
.......................
$5,000–9,999.99 ..................
$10,000–24,999.99 ..............
$25,000–49,999.99 ..............
$50,000–74,999.99 ..............
$75,000–99,999.99 ..............
$100,000–149,999.99 ..........
$150,000–199,999.99 ..........
$200,000–249,999.99 ..........
$250,000–349,999.99 ..........
$350,000–449,999.99 ..........
$450,000–549,999.99 ..........
$550,000–649,999.99 ..........
$650,000–749,999.99 ..........
$750,000–849,999.99 ..........
$8,50,000–949,999.99 .........
$950,000 or over ..................
a The
makes public any notification or
investigation under 2 U.S.C. 437g
without receiving the written consent of
the person receiving such notification,
or the person with respect to whom
such investigation is made, shall be
fined not more than $3,200. Any such
member, employee, or other person who
knowingly and willfully violates this
provision shall be fined not more than
$7,500.
And the report was filed late, the civil money penalty is:
[$25 + ($5 x Number of days late)] × [1 + (.25 × Number of previous violations)].
[$55 + ($5 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$110 + ($5 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$200 + ($20 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$330 + ($82.50 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$440 + ($110 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$660 + ($125 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$880 + ($150 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$1,100 + ($175 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$1,500 + ($200 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$2,000 + ($200 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$2,500 + ($200 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$3,300 + ($200 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$3,850 + ($200 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$4,400 + ($200 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$4,950 + ($200 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$5,500 + ($200 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
3. Section 111.43 is amended by
revising paragraphs (a), (b), (c), and (d)
to read as follows:
■
§ 111.43 What are the schedules of
penalties?
(a) The civil money penalty for all
reports that are filed late or not filed,
except election sensitive reports and
pre-election reports under 11 CFR 104.5,
shall be calculated in accordance with
the following schedule of penalties:
Or the report was not filed, the civil money penalty is:
$250 × [1 + (.25 × Number of previous violations)].
$330 × [1 + (.25 × Number of previous violations)].
$550 × [1 + (.25 × Number of previous violations)].
$990 × [1 + (.25 × Number of previous violations)].
$2,970 × [1 + (.25 × Number of previous violations)].
$3,850 × [1 + (.25 × Number of previous violations)].
$4,950 × [1 + (.25 × Number of previous violations)].
$6,050 × [1 + (.25 × Number of previous violations)].
$7,150 × [1 + (.25 × Number of previous violations)].
$8,800 × [1 + (.25 × Number of previous violations)]
$9,900 × [1 + (.25 × Number of previous violations)].
$10,450 × [1 + (.25 × Number of previous violations)].
$11,000 × [1 + (.25 × Number of previous violations)].
$10,500 × [1 + (.25 × Number of previous violations)].
$11,000 × [1 + (.25 × Number of previous violations)].
$11,500 × [1 + (.25 × Number of previous violations)].
$12,000 × [1 + (.25 × Number of previous violations)].
civil money penalty for a respondent who does not have any previous violations will not exceed the level of activity in the report.
(b) The civil money penalty for
election sensitive reports that are filed
late or not filed shall be calculated in
accordance with the following schedule
of penalties:
If the level of activity in the
report was:
And the report was filed late, the civil money penalty is:
$1–4,999.99 a .......................
[$55 + ($10 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$110 + ($10 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$150 + ($10 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$330 + ($25 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$495 + ($82.50 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$660 + ($110 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
$5,000–9,999.99 ..................
$10,000–24,999.99 ..............
$25,000–49,999.99 ..............
$50,000–74,999.99 ..............
$75,000–99,999.99 ..............
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14:55 Jun 30, 2009
Jkt 217001
PO 00000
Frm 00004
Fmt 4700
Sfmt 4700
Or the report was not filed, the civil money penalty is:
$550 × [1 + (.25 × Number of previous violations)].
$660 × [1 + (.25 × Number of previous violations)].
$990 × [1 + (.25 × Number of previous violations)].
$1,400 × [1 + (.25 × Number of previous violations)].
$3,300 × [1 + (.25 × Number of previous violations)].
$4,400 × [1 + (.25 × Number of previous violations)].
E:\FR\FM\01JYR1.SGM
01JYR1
Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations
If the level of activity in the
report was:
$100,000–149,999.99 ..........
$150,000–199,999.99 ..........
$200,000–249,999.99 ..........
$250,000–349,999.99 ..........
$350,000–449,999.99 ..........
$450,000–549,999.99 ..........
$550,000–649,999.99 ..........
$650,000–749,999.99 ..........
$750,000–849,999.99 ..........
$850,000–949,999.99 ..........
$950,000 or over ..................
a The
And the report was filed late, the civil money penalty is:
[$990 + ($125 × Number of days late)] × [1 +
Number of previous violations)].
[$1,200 + ($150 × Number of days late)] × [1 +
Number of previous violations)].
[$1,500 + ($175 × Number of days late)] × [1 +
Number of previous violations)].
[$2,250 + ($200 × Number of days late)] × [1 +
Number of previous violations)].
[$3,300 + ($200 × Number of days late)] × [1 +
Number of previous violations)].
[$4,125 + ($200 × Number of days late)] × [1 +
Number of previous violations)].
[$4,950 + ($200 × Number of days late)] × [1 +
Number of previous violations)].
[$5,775 + ($200 × Number of days late)] × [1 +
Number of previous violations)].
[$6,600 + ($200 × Number of days late)] × [1 +
Number of previous violations)].
[$7,425 + ($200 × Number of days late)] × [1 +
Number of previous violations)].
[$8,250 + ($200 × Number of days late)] × [1 +
Number of previous violations)].
31349
Or the report was not filed, the civil money penalty is:
(.25 ×
$5,500 × [1 + (.25 × Number of previous violations)].
(.25 ×
$6,600 × [1 + (.25 × Number of previous violations)].
(.25 ×
$8,250 × [1 + (.25 × Number of previous violations)].
(.25 ×
$9,900 × [1 + (.25 × Number of previous violations)].
(.25 ×
$11,000 × [1 + (.25 × Number of previous violations)].
(.25 ×
$11,000 × [1 + (.25 × Number of previous violations)].
(.25 ×
$12,000 × [1 + (.25 × Number of previous violations)].
(.25 ×
$13,000 × [1 + (.25 × Number of previous violations)].
(.25 ×
$15,400 × [1 + (.25 × Number of previous violations)].
(.25 ×
$16,500 × [1 + (.25 × Number of previous violations)].
(.25 ×
$17,600 × [1 + (.25 × Number of previous violations)].
civil money penalty for a respondent who does not have any previous violations will not exceed the level of activity in the report.
(c) If the respondent fails to file a
required report and the Commission
cannot calculate the level of activity
under paragraph (d) of this section, then
the civil money penalty shall be $6,500.
(d) Definitions. For this section only,
the following definitions will apply:
(1) Election Sensitive Reports means
third quarter reports due on October
15th before the general election (for all
committees required to file this report
except committees of candidates who do
not participate in that general election);
monthly reports due October 20th
before the general election (for all
committees required to file this report
except committees of candidates who do
not participate in that general election);
and pre-election reports for primary,
general, and special elections under 11
CFR 104.5.
(2) Estimated level of activity means:
(i) For an authorized committee, total
receipts and disbursements reported in
the current two-year election cycle
divided by the number of reports filed
to date covering the activity in the
current two-year election cycle. If the
respondent has not filed a report
covering activity in the current two-year
election cycle, estimated level of
activity for an authorized committee
means total receipts and disbursements
reported in the prior two-year election
cycle divided by the number of reports
filed covering the activity in the prior
two-year election cycle.
(ii)(A) For an unauthorized
committee, estimated level of activity is
calculated as follows: [(Total receipts
and disbursements reported in the
current two-year cycle)—(Transfers
received from non-Federal account(s) as
VerDate Nov<24>2008
14:55 Jun 30, 2009
Jkt 217001
reported on Line 18(a) of FEC Form 3X
Disbursements for the non-Federal share
of operating expenditures attributable to
allocated Federal/non-Federal activity
as reported on Line 21(a)(ii) of FEC
Form 3X)] ÷ Number of reports filed to
date covering the activity in the current
two-year election cycle.
(B) If the unauthorized committee has
not filed a report covering activity in the
current two-year election cycle, the
estimated level of activity is calculated
as follows: [(Total receipts and
disbursements reported in the prior twoyear election cycle)—(Transfers received
from non-Federal account(s) as reported
on Line 18(a) of FEC Form 3X
Disbursements for the non-Federal share
of operating expenditures attributable to
allocated Federal/non-Federal activity
as reported on Line 21(a)(ii) of FEC
Form 3X)] ÷ Number of reports filed
covering the activity in the prior twoyear election cycle.
(3) Level of activity means:
(i) For an authorized committee, the
total amount of receipts and
disbursements for the period covered by
the late report. If the report is not filed,
the level of activity is the estimated
level of activity as set forth in paragraph
(d)(2)(i) of this section.
(ii) For an unauthorized committee,
the total amount of receipts and
disbursements for the period covered by
the late report minus the total of:
Transfers received from non-Federal
account(s) as reported on Line 18(a) of
FEC Form 3X and disbursements for the
non-Federal share of operating
expenditures attributable to allocated
Federal/non-Federal activity as reported
on Line 21(a)(ii) of FEC Form 3X for the
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
period covered by the late report. If the
report is not filed, the level of activity
is the estimated level of activity as set
forth in paragraph (d)(2)(ii) of this
section.
(4) Number of previous violations
means all prior final civil money
penalties assessed under this subpart
during the current two-year election
cycle and the prior two-year election
cycle.
*
*
*
*
*
§ 111.44
[Amended]
4. In paragraph (b) of § 111.44, remove
the words ‘‘civil money penalty’’ and
add, in their place, the words ‘‘final
civil money penalty.’’
■
Dated: March 25, 2009.
On behalf of the Commission.
Steven T. Walther,
Chairman, Federal Election Commission.
Editorial Note: This document was
received in the Office of the Federal Register
on Thursday, June 25, 2009.
[FR Doc. E9–15483 Filed 6–30–09; 8:45 am]
BILLING CODE 6715–01–P
E:\FR\FM\01JYR1.SGM
01JYR1
]]>Agencies
[Federal Register Volume 74, Number 125 (Wednesday, July 1, 2009)]
[Rules and Regulations]
[Pages 31345-31349]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-15483]
=======================================================================
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FEDERAL ELECTION COMMISSION
11 CFR Part 111
[Notice 2009-09]
Civil Monetary Penalties Inflation Adjustments
AGENCY: Federal Election Commission.
ACTION: Final rules.
-----------------------------------------------------------------------
SUMMARY: In accordance with the Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended, the Federal Election Commission is
adopting final rules to apply inflation adjustments to certain civil
monetary penalties under the Federal Election Campaign Act of 1971, as
amended (``FECA''), the Presidential Election Campaign Fund Act, and
the Presidential Primary Matching Payment Account Act. The civil
penalties being adjusted are for certain violations of these statutes
that are not knowing and willful, involving contributions and
expenditures; knowing and willful violations of the prohibition against
the making of a contribution in the name of another; knowing and
willful violations of the confidentiality provisions of FECA; certain
penalties for late filed or non-filed reports under the administrative
fines program; and failure to file timely 48-hour notices. The adjusted
civil monetary penalties are calculated according to the formula set
forth in the law and will be effective for violations occurring on or
after the effective date of these rules. Further information is
provided in the supplementary information that follows.
DATES: Effective on July 1, 2009.
FOR FURTHER INFORMATION CONTACT: Mr. Robert M. Knop, Assistant General
Counsel, or Ms. Cheryl A.F. Hemsley, or Ms. Jessica Selinkoff,
Attorneys, 999 E Street, NW., Washington, DC 20463, (202) 694-1650 or
(800) 424-9530.
SUPPLEMENTARY INFORMATION: The Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended,\1\ (the ``Inflation Adjustment
Act'') requires Federal agencies to adjust for inflation the civil
monetary penalties within their jurisdiction at least once every four
years according to detailed formulae. A civil monetary penalty (``civil
penalty'') is defined in the Inflation Adjustment Act as any penalty,
fine, or other sanction that is for a specific amount, or has a maximum
amount, as provided by Federal law, and is assessed or enforced by an
agency in an administrative proceeding or by a Federal court pursuant
to Federal law.\2\ Further, the Inflation Adjustment Act contains a 10%
penalty cap on the first adjustment of any civil penalty. That is, the
first adjustment made to the civil penalty may not exceed 10% of the
starting civil penalty.\3\ Under the Federal Election Campaign Act of
1971 (``FECA''), as amended, 2 U.S.C. 431 et seq., the Federal Election
Commission (``Commission'') has jurisdiction over several civil
penalties for respondents who violate FECA, the Presidential Election
Campaign Fund Act, 26 U.S.C. 9001 et seq., or the Presidential Primary
Matching Payment Account Act, 26 U.S.C. 9031 et seq. (``chapters 95 and
96 of Title 26''). These rules fulfill the Commission's non-
discretionary obligation under the Inflation Adjustment Act to adjust
for inflation, according to the prescribed formula, the civil monetary
penalties (``civil penalties'') within its jurisdiction.
---------------------------------------------------------------------------
\1\ 28 U.S.C. 2461 note, as amended by Debt Collection
Improvement Act of 1996, Public Law 104-134, 110 Stat. 1321-73, sec.
31001(s)(1) (1996); Public Law 105-362, 112 Stat. 3293 (1998).
\2\ 28 U.S.C. 2461 note (3)(2).
\3\ 28 U.S.C. 2461 note (7).
---------------------------------------------------------------------------
Immediate Effectiveness of Final Rule
The Commission is required by statute to adjust the civil penalties
under its jurisdiction by a Cost of Living Adjustment (``COLA'')
formula. This application of the COLA does not involve Commission
discretion or any policy judgments. Thus, the Commission finds that the
``good cause'' exception to the notice and comment requirement in
section 553 of the Administrative Procedures Act applies to these rules
because notice and comment are unnecessary. 5 U.S.C. 553(b)(B) and
(d)(3).
For the same reasons, these rules do not need to be submitted to
the Speaker
[[Page 31346]]
of the House of Representatives or the President of the Senate under
the Congressional Review Act, 5 U.S.C. 801 et seq., and these rules are
effective upon publication. 5 U.S.C. 808(2). Accordingly these
amendments are effective on July 1, 2009. The new civil penalties are
applicable only to violations that occur after this effective date.
Explanation and Justification
Under the Inflation Adjustment Act, the Commission must adjust
civil penalties by a COLA defined as the percentage by which the U.S.
Department of Labor's Consumer Price Index for all urban consumers
(``CPI'') for June of the year preceding the adjustment exceeds the CPI
for June of the year in which each civil penalty was last set or
adjusted.\4\ The amount of the resulting increase is then subject to
rounding rules based on the size of the civil penalty.\5\ The Inflation
Adjustment Act imposes a 10% cap on the first adjustment under its
rules, but no cap on subsequent adjustments.
---------------------------------------------------------------------------
\4\ 28 U.S.C. 2461 note (5)(b).
\5\ 28 U.S.C. 2461 note (5)(a). The rounding rules applicable to
the Commission's civil penalties require that if the existing
penalty is less than or equal to $100, the increase is rounded to
the nearest $10; if the existing penalty is greater than $100 but
less than or equal to $1,000, the increase is rounded to the nearest
$100; if the existing penalty is greater than $1,000 but less than
or equal to $10,000, the increase is rounded to the nearest $1,000;
and if the existing penalty is greater than $10,000 but less than or
equal to $100,000, the increase is rounded to the nearest $5,000.
---------------------------------------------------------------------------
The Commission has previously applied the Inflation Adjustment Act
formulae to its civil penalties in 1997, 2002, and 2005.\6\ As
explained in more detail below, the Commission has determined that the
Inflation Adjustment Act now requires the Commission to adjust all
civil penalties in 11 CFR 111.24 and some civil penalties in 11 CFR
111.43. The civil penalties in 11 CFR 111.44 will not change because of
the rounding rules.
---------------------------------------------------------------------------
\6\ See Explanation and Justification for Final Rules on
Inflation Adjustments for Civil Monetary Penalties, 70 FR 34633
(June 15, 2005) (``2005 Adjustment''); Explanation and Justification
for Final Rules on Adjustments to Civil Monetary Penalty Amounts, 62
FR 11316 (Mar. 12, 1997) (``1997 Adjustment''). In January 2002, the
rounding rules resulted in no adjustments. Agenda Doc. 02-06 (Jan.
17, 2002).
---------------------------------------------------------------------------
1. 111.24--Civil Penalties (2 U.S.C. 437g(a)(5), (6), (12), 28 U.S.C.
2461 nt.)
FECA provides for civil penalties for any person who violates any
portion of FECA or chapters 95 and 96 of Title 26. FECA's civil
penalties, found at 2 U.S.C. 437(g)(a)(5), (6), and (12), are organized
into two tiers: One tier of civil penalties for violations of FECA or
chapters 95 and 96 of Title 26, and a higher tier of civil penalties
for ``knowing and willful'' violations of FECA or chapters 95 and 96 of
Title 26. Commission regulations in section 111.24 set forth each civil
penalty established by section 437g(a)(5), (6), and (12), as adjusted
pursuant to the Inflation Adjustment Act.
Example
The following is a detailed example of the application of the
Inflation Adjustment Act formulae to FECA civil penalties. The $5,000
civil penalties provided for in 2 U.S.C. 437g(a)(5)(A), (6)(A), and
(6)(B) are implemented by the regulations at 11 CFR 111.24(a)(1) at
their 2005 level of $6,500. See 2005 Adjustment, 70 FR at 34634; 1997
Adjustment, 62 FR at 11316. To determine the 2009 adjustment, the CPI
for June 2008 (218.815) is divided by the CPI for June 2005, the year
the civil penalty was last adjusted (194.5), for a COLA of 1.125. Next,
the raw inflation adjustment is determined by multiplying the present
civil penalty ($6,500) by the COLA increase (0.125) for a raw increase
of $812.50. The result is rounded to $1,000. Finally, the rounded
increase is added to the civil penalty, for a new section 111.24(a)(1)
civil penalty of $7,500.
Using the same Inflation Adjustment Act formulae, the Commission
must also adjust other civil penalties in 11 CFR 111.24. Since each of
these civil penalties has been previously adjusted, the 10% cap for
first time adjustments does not apply to any of them. The complete list
of all civil penalty adjustments in section 111.24 is as follows:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Previous
Section civil Last COLA increase Raw Rounded to New civil
penalty adjusted increase penalty
--------------------------------------------------------------------------------------------------------------------------------------------------------
11 CFR 111.24(a)(1)........................................... $6,500 2005 0.125 (218.815/194.5) $812.50 $1,000 $7,500
11 CFR 111.24(a)(2)(i)........................................ 11,000 1997 0.365 (218.815/160.3) 4,015 5,000 16,000
11 CFR 111.24(a)(2)(ii)....................................... 55,000 2005 0.125 (218.815/194.5) 6,875 5,000 60,000
11 CFR 111.24(b).............................................. 2,200 1997 0.365 (218.815/160.3) 803 1,000 3,200
11 CFR 111.24(b).............................................. 6,500 2005 0.125 (218.815/194.5) 812.50 1,000 7,500
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note that the civil penalties in 11 CFR 111.24(a)(2)(i) and (b)
have not been adjusted since 1997 because application of the rounding
rules resulted in no change when adjustments were examined in 2002 and
2005.
2. 11 CFR 111.43--Schedule of Penalties
FECA permits the Commission to assess civil penalties for
violations of the reporting requirements of 2 U.S.C. 434(a) in
accordance with schedules of penalties established and published by the
Commission. 2 U.S.C. 437g(a)(4)(C). Each schedule contains two columns,
one for penalties for late-filed reports and one for penalties for non-
filed reports. Reports are considered to be late-filed if they are
filed after their due date under 11 CFR 104.5 but before a date certain
which is determined by whether the reports are election-sensitive or
not.\7\ Reports are considered not filed if they either are filed after
that date certain or are not filed at all. See 11 CFR 111.43(e).
---------------------------------------------------------------------------
\7\ Election-sensitive reports are those due just before an
election. See 11 CFR 111.43(d)(1). The dissemination of information
in these reports has the most meaningful impact because they are
filed in proximity to an election. Accordingly, the schedule of
penalties imposes a higher civil penalty for these reports than for
all other reports, which are non-election-sensitive.
---------------------------------------------------------------------------
The Commission first promulgated two schedules of penalties for
late filing violations in 2000 in 11 CFR 111.43(a) and (b), for non-
election-sensitive reports and election-sensitive reports,
respectively. Explanation and Justification for Final Rules on
Administrative Fines, 65 FR 31787 (May 19, 2000). The penalty
calculations were based on the ``level of activity,'' as defined in the
2000 regulations at 11 CFR 111.43(d), reported by the late-filing
committee. Additionally, the Commission promulgated a civil penalty of
$5,500 at 11 CFR 111.43(c) for situations in which a committee fails to
file a report and there is no ``estimated level of activity,'' on which
the Commission can base a civil penalty thereby making it impossible
for the Commission to calculate the level of activity.
In 2003, the Commission reevaluated the administrative fines
program and decided to reduce the civil penalties in
[[Page 31347]]
section 111.43(a) and (b) applicable to reports containing under
$50,000 in activity. It also repromulgated the remaining civil
penalties. See Explanation and Justification for Final Rules on
Administrative Fines, 68 FR 12572 (Mar. 17, 2003) (``2003 Rules'').
Accordingly, the civil penalties for reports due on or after April 16,
2003 were set forth in new schedules at 11 CFR 111.43(a)(2) (non-
election-sensitive) and 11 CFR 111.43(b)(2) (election-sensitive). The
penalty schedules for previous reports were located in 11 CFR
111.43(a)(1) (non-election-sensitive) and 111.43(b)(1) (election-
sensitive). The Commission also revised its definitions for ``level of
activity'' and ``estimated level of activity'' for reports due on or
after April 16, 2003.
The Commission has now determined that there is no need to retain
the pre-April 2003 schedules at 11 CFR 111.43(a)(1) and (b)(1). Because
the statute of limitations for enforcement of civil fines and penalties
is five years from the date when the claim first accrued, a proceeding
to enforce a civil penalty for a report due before April 16, 2003 would
need to have been commenced before April 16, 2008. See 28 U.S.C. 2462.
Accordingly, the Commission is removing paragraphs (a)(1) and (b)(1)
from 11 CFR 111.43, including both the old schedules and the
definitions for ``level of activity'' and ``estimated level of
activity'' applicable to those schedules. Former 11 CFR 111.43(a)(2)
and 11 CFR 111.43(b)(2) are being renumbered as 11 CFR 111.43(a) and
111.43(b), respectively. Additionally, because the removal of the old
schedules at 11 CFR 111.43(a)(1) and (b)(1) obviates the need to
distinguish between different definitions of ``level of activity'' and
``estimated level of activity'' for time periods before or after the
2003 Rules, the Commission is also moving, but not changing the
substance of, those definitions from section 111.43(a)(2) and (b)(2) to
the general definition section at 11 CFR 111.43(d). Finally, the
Commission is numbering each of the definitions in section 111.43(d)
for clarity.
In addition to these technical changes, the Commission must adjust
the civil penalties schedules in section 111.43(a) and (b) pursuant to
the Inflation Adjustment Act. These civil penalties schedules were set
when the Commission repromulgated them in the 2003 rulemaking. In 2005,
the Commission applied the Inflation Adjustment Act formulae to the
civil penalties in section 111.43. Because of the rounding rules,
however, none of the penalties was adjusted. See 2005 Adjustment, 70 FR
at 34635. Accordingly, this is the first adjustment of these civil
penalties under the Inflation Adjustment Act and the 10% cap applies to
any adjustments made.
To make the adjustments, the Inflation Adjustment Act formula is
applied to each civil penalty in the schedules to determine what, if
any, adjustment must be made. First, the CPI for 2008 is divided by the
CPI for June of 2003 (218.815/183.7) to determine the applicable COLA
of 0.191. Then, each civil penalty is multiplied by the COLA to
determine the amount of the unrounded raw increase. Next, the statutory
rounding formula is applied to that raw increase amount. The resulting
rounded increase is then added to the current civil penalty to
determine the new raw civil penalty. Finally, the statutory 10% penalty
cap is applied as necessary. Accordingly, if the new raw civil penalty
is larger than 110% of the current civil penalty, the raw penalty is
adjusted downward to conform to that penalty cap. The actual adjustment
to each civil penalty is shown in the schedules in the rule text,
below.
The Commission must also adjust the $5,500 civil penalty provided
for in 2000 in 11 CFR 111.43(c), and repromulgated in 2003, which has
not been adjusted pursuant to the Inflation Adjustment Act. To
determine this year's adjustment, the CPI for June 2008 is divided by
the CPI for June 2003 (218.815/183.7) for a COLA increase of 0.191.
Next the $5,500 is multiplied by the COLA for a raw increase of
$1,050.50, which is then rounded to $1,000. Again, this first
adjustment pursuant to the Inflation Adjustment Act is capped at 10
percent of the original penalty ($5,500), for a new section 111.43(c)
civil penalty of $6,050.
3. 11 CFR 111.44--Schedule of Penalties for 48-Hour Notices
Principal campaign committees are required to report, within 48
hours of receipt, any contributions of $1,000 or more that are received
after the 20th day, but more than 48 hours before any election. 2
U.S.C. 434(a)(6). FECA permits the Commission to assess civil penalties
for violations of the 48-hour notice reporting requirement. 2 U.S.C.
437g(a)(4)(C). The Commission last adjusted the civil penalty for these
reporting violations in 2005 to $110 + (.10 x amount of contribution(s)
not timely reported). See 2005 Adjustment, 70 FR at 34635; Explanation
and Justification for Final Rules on Administrative Fines, 65 FR 31787,
31793 (May 19, 2000). To determine this year's adjustment, The CPI for
June 2008 is divided by the CPI for June 2005 (218.815/194.5) for a
COLA increase of 0.125. The civil penalty is then multiplied by the
COLA for a raw increase of $13.75, which is then rounded to $0.
Accordingly, the civil penalty in section 111.44 remains at $110 + (.10
x amount of contribution(s) not timely reported).
While the Commission is not making any adjustments to the civil
penalty in 11 CFR 111.44, it is correcting an incorrect phrase in
section 111.44(b). Specifically, the phrase ``civil money penalty'' is
incomplete and is being changed to ``final civil money penalty.''
Certification of No Effect Pursuant to 5 U.S.C. 605(b) (Regulatory
Flexibility Act)
The provisions of the Regulatory Flexibility Act are not applicable
to this final rule because the Commission was not required to publish a
notice of proposed rulemaking or to seek public comment under 5 U.S.C.
553 or any other laws. 5 U.S.C. 603(a) and 604(a). Therefore, no
regulatory flexibility analysis is required.
List of Subjects in 1 CFR Part 111
Administrative practice and procedures, Elections, Law enforcement,
Penalties.
0
For the reasons set out in the preamble, the Federal Election
Commission amends subchapter A of chapter I of title 11 of the Code of
Federal Regulations as follows:
PART 111--COMPLIANCE PROCEDURE (2 U.S.C. 437g, 437d(a))
0
1. The authority citation for part 111 continues to read as follows:
Authority 2 U.S.C. 432(i), 437g, 437d(a), 438(a)(8); 28 U.S.C.
2461 nt.
0
2. Section 111.24 is amended by revising paragraphs (a)(1), (a)(2)(i),
(a)(2)(ii) and (b) to read as follows:
Sec. 111.24 Civil Penalties (2 U.S.C. 437g(a)(5), (6), (12), 28
U.S.C. 2461 nt.).
(a) * * *
(1) Except as provided in paragraph (a)(2) of this section, in the
case of a violation of the Act or chapters 95 or 96 of title 26 (26
U.S.C.), the civil penalty shall not exceed the greater of $7,500 or an
amount equal to any contribution or expenditure involved in the
violation.
(2) * * *
(i) In the case of a knowing and willful violation of the Act or
chapters 95 or 96 of title 26 (26 U.S.C.), the civil penalty shall not
exceed the greater of $16,000 or an amount equal to 200% of any
contribution or expenditure involved in the violation.
[[Page 31348]]
(ii) Notwithstanding paragraph (a)(2)(i) of this section, in the
case of a knowing and willful violation of 2 U.S.C. 441f, the civil
penalty shall not be less than 300% of the amount of any contribution
involved in the violation and shall not exceed the greater of $60,000
or 1,000% of the amount of any contribution involved in the violation.
(b) Any Commission member or employee, or any other person, who in
violation of 2 U.S.C. 437g(a)(12)(A) makes public any notification or
investigation under 2 U.S.C. 437g without receiving the written consent
of the person receiving such notification, or the person with respect
to whom such investigation is made, shall be fined not more than
$3,200. Any such member, employee, or other person who knowingly and
willfully violates this provision shall be fined not more than $7,500.
0
3. Section 111.43 is amended by revising paragraphs (a), (b), (c), and
(d) to read as follows:
Sec. 111.43 What are the schedules of penalties?
(a) The civil money penalty for all reports that are filed late or
not filed, except election sensitive reports and pre-election reports
under 11 CFR 104.5, shall be calculated in accordance with the
following schedule of penalties:
----------------------------------------------------------------------------------------------------------------
And the report was filed late, Or the report was not filed,
If the level of activity in the report was: the civil money penalty is: the civil money penalty is:
----------------------------------------------------------------------------------------------------------------
$1-4,999.99 a................................ [$25 + ($5 x Number of days $250 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$5,000-9,999.99.............................. [$55 + ($5 x Number of days $330 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$10,000-24,999.99............................ [$110 + ($5 x Number of days $550 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$25,000-49,999.99............................ [$200 + ($20 x Number of days $990 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$50,000-74,999.99............................ [$330 + ($82.50 x Number of days $2,970 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$75,000-99,999.99............................ [$440 + ($110 x Number of days $3,850 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$100,000-149,999.99.......................... [$660 + ($125 x Number of days $4,950 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$150,000-199,999.99.......................... [$880 + ($150 x Number of days $6,050 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$200,000-249,999.99.......................... [$1,100 + ($175 x Number of days $7,150 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$250,000-349,999.99.......................... [$1,500 + ($200 x Number of days $8,800 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)]
previous violations)].
$350,000-449,999.99.......................... [$2,000 + ($200 x Number of days $9,900 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$450,000-549,999.99.......................... [$2,500 + ($200 x Number of days $10,450 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$550,000-649,999.99.......................... [$3,300 + ($200 x Number of days $11,000 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$650,000-749,999.99.......................... [$3,850 + ($200 x Number of days $10,500 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$750,000-849,999.99.......................... [$4,400 + ($200 x Number of days $11,000 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$8,50,000-949,999.99......................... [$4,950 + ($200 x Number of days $11,500 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$950,000 or over............................. [$5,500 + ($200 x Number of days $12,000 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
----------------------------------------------------------------------------------------------------------------
a The civil money penalty for a respondent who does not have any previous violations will not exceed the level
of activity in the report.
(b) The civil money penalty for election sensitive reports that are
filed late or not filed shall be calculated in accordance with the
following schedule of penalties:
----------------------------------------------------------------------------------------------------------------
And the report was filed late, Or the report was not filed,
If the level of activity in the report was: the civil money penalty is: the civil money penalty is:
----------------------------------------------------------------------------------------------------------------
$1-4,999.99 \a\.............................. [$55 + ($10 x Number of days $550 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$5,000-9,999.99.............................. [$110 + ($10 x Number of days $660 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$10,000-24,999.99............................ [$150 + ($10 x Number of days $990 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$25,000-49,999.99............................ [$330 + ($25 x Number of days $1,400 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$50,000-74,999.99............................ [$495 + ($82.50 x Number of days $3,300 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$75,000-99,999.99............................ [$660 + ($110 x Number of days $4,400 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
[[Page 31349]]
$100,000-149,999.99.......................... [$990 + ($125 x Number of days $5,500 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$150,000-199,999.99.......................... [$1,200 + ($150 x Number of days $6,600 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$200,000-249,999.99.......................... [$1,500 + ($175 x Number of days $8,250 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$250,000-349,999.99.......................... [$2,250 + ($200 x Number of days $9,900 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$350,000-449,999.99.......................... [$3,300 + ($200 x Number of days $11,000 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$450,000-549,999.99.......................... [$4,125 + ($200 x Number of days $11,000 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$550,000-649,999.99.......................... [$4,950 + ($200 x Number of days $12,000 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$650,000-749,999.99.......................... [$5,775 + ($200 x Number of days $13,000 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$750,000-849,999.99.......................... [$6,600 + ($200 x Number of days $15,400 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$850,000-949,999.99.......................... [$7,425 + ($200 x Number of days $16,500 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$950,000 or over............................. [$8,250 + ($200 x Number of days $17,600 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
----------------------------------------------------------------------------------------------------------------
\a\ The civil money penalty for a respondent who does not have any previous violations will not exceed the level
of activity in the report.
(c) If the respondent fails to file a required report and the
Commission cannot calculate the level of activity under paragraph (d)
of this section, then the civil money penalty shall be $6,500.
(d) Definitions. For this section only, the following definitions
will apply:
(1) Election Sensitive Reports means third quarter reports due on
October 15th before the general election (for all committees required
to file this report except committees of candidates who do not
participate in that general election); monthly reports due October 20th
before the general election (for all committees required to file this
report except committees of candidates who do not participate in that
general election); and pre-election reports for primary, general, and
special elections under 11 CFR 104.5.
(2) Estimated level of activity means:
(i) For an authorized committee, total receipts and disbursements
reported in the current two-year election cycle divided by the number
of reports filed to date covering the activity in the current two-year
election cycle. If the respondent has not filed a report covering
activity in the current two-year election cycle, estimated level of
activity for an authorized committee means total receipts and
disbursements reported in the prior two-year election cycle divided by
the number of reports filed covering the activity in the prior two-year
election cycle.
(ii)(A) For an unauthorized committee, estimated level of activity
is calculated as follows: [(Total receipts and disbursements reported
in the current two-year cycle)--(Transfers received from non-Federal
account(s) as reported on Line 18(a) of FEC Form 3X Disbursements for
the non-Federal share of operating expenditures attributable to
allocated Federal/non-Federal activity as reported on Line 21(a)(ii) of
FEC Form 3X)] / Number of reports filed to date covering the activity
in the current two-year election cycle.
(B) If the unauthorized committee has not filed a report covering
activity in the current two-year election cycle, the estimated level of
activity is calculated as follows: [(Total receipts and disbursements
reported in the prior two-year election cycle)--(Transfers received
from non-Federal account(s) as reported on Line 18(a) of FEC Form 3X
Disbursements for the non-Federal share of operating expenditures
attributable to allocated Federal/non-Federal activity as reported on
Line 21(a)(ii) of FEC Form 3X)] / Number of reports filed covering the
activity in the prior two-year election cycle.
(3) Level of activity means:
(i) For an authorized committee, the total amount of receipts and
disbursements for the period covered by the late report. If the report
is not filed, the level of activity is the estimated level of activity
as set forth in paragraph (d)(2)(i) of this section.
(ii) For an unauthorized committee, the total amount of receipts
and disbursements for the period covered by the late report minus the
total of: Transfers received from non-Federal account(s) as reported on
Line 18(a) of FEC Form 3X and disbursements for the non-Federal share
of operating expenditures attributable to allocated Federal/non-Federal
activity as reported on Line 21(a)(ii) of FEC Form 3X for the period
covered by the late report. If the report is not filed, the level of
activity is the estimated level of activity as set forth in paragraph
(d)(2)(ii) of this section.
(4) Number of previous violations means all prior final civil money
penalties assessed under this subpart during the current two-year
election cycle and the prior two-year election cycle.
* * * * *
Sec. 111.44 [Amended]
0
4. In paragraph (b) of Sec. 111.44, remove the words ``civil money
penalty'' and add, in their place, the words ``final civil money
penalty.''
Dated: March 25, 2009.
On behalf of the Commission.
Steven T. Walther,
Chairman, Federal Election Commission.
Editorial Note: This document was received in the Office of the
Federal Register on Thursday, June 25, 2009.
[FR Doc. E9-15483 Filed 6-30-09; 8:45 am]
BILLING CODE 6715-01-P
