Civil Monetary Penalties Annual Inflation Adjustments, 66596-66599 [2018-27801]
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Federal Register / Vol. 83, No. 247 / Thursday, December 27, 2018 / Rules and Regulations
(1) * * *
(iv) A statement that indicates
whether such expenditure was in
support of, or in opposition to a
candidate, together with the candidate’s
name and office sought; if the
expenditure meets the criteria set forth
in 11 CFR 104.3(b)(3)(vii)(C), memo text
must be used to indicate the states in
which the communication is
distributed, as prescribed in that
section;
*
*
*
*
*
On behalf of the Commission.
Dated: December 18, 2018.
Caroline C. Hunter,
Chair, Federal Election Commission.
[FR Doc. 2018–27800 Filed 12–26–18; 8:45 am]
BILLING CODE 6715–01–P
FEDERAL ELECTION COMMISSION
11 CFR Part 111
[Notice 2018–18]
Civil Monetary Penalties Annual
Inflation Adjustments
Federal Election Commission.
Final rules.
AGENCY:
ACTION:
As required by the Federal
Civil Penalties Inflation Adjustment Act
of 1990, the Federal Election
Commission is adjusting for inflation
the civil monetary penalties established
under the Federal Election Campaign
Act, the Presidential Election Campaign
Fund Act, and the Presidential Primary
Matching Payment Account Act. The
civil monetary penalties being adjusted
are those negotiated by the Commission
or imposed by a court for certain
statutory violations, and those imposed
by the Commission for late filing of or
failure to file certain reports required by
the Federal Election Campaign Act. The
adjusted civil monetary penalties are
calculated according to a statutory
formula and the adjusted amounts will
apply to penalties assessed after the
effective date of these rules.
DATES: The final rules are effective on
January 1, 2019.
FOR FURTHER INFORMATION CONTACT: Mr.
Robert M. Knop, Assistant General
Counsel, or Mr. Joseph P. Wenzinger,
Attorney, Office of General Counsel,
(202) 694–1650 or (800) 424–9530.
SUPPLEMENTARY INFORMATION: The
Federal Civil Penalties Inflation
Adjustment Act of 1990 (the ‘‘Inflation
Adjustment Act’’),1 as amended by the
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SUMMARY:
1 Public Law 101–410, 104 Stat. 890 (codified at
28 U.S.C. 2461 note), amended by Debt Collection
Improvement Act of 1996, Public Law 104–134, sec.
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Federal Civil Penalties Inflation
Adjustment Act Improvements Act of
2015 (the ‘‘2015 Act’’),2 requires federal
agencies, including the Commission, to
adjust for inflation the civil monetary
penalties within their jurisdiction
according to prescribed formulas. A
civil monetary penalty is ‘‘any penalty,
fine, or other sanction’’ that (1) ‘‘is for
a specific monetary amount’’ or ‘‘has a
maximum amount’’ under federal law;
and (2) that a federal agency assesses or
enforces ‘‘pursuant to an administrative
proceeding or a civil action’’ in federal
court.3 Under the Federal Election
Campaign Act, 52 U.S.C. 30101–45
(‘‘FECA’’), the Commission may seek
and assess civil monetary penalties for
violations of FECA, the Presidential
Election Campaign Fund Act, 26 U.S.C.
9001–13, and the Presidential Primary
Matching Payment Account Act, 26
U.S.C. 9031–42.
The Inflation Adjustment Act requires
federal agencies to adjust their civil
penalties annually, and the adjustments
must take effect no later than January 15
of every year.4 Pursuant to guidance
issued by the Office of Management and
Budget,5 the Commission is now
adjusting its civil monetary penalties for
2019.6
The Commission must adjust for
inflation its civil monetary penalties
‘‘notwithstanding Section 553’’ of the
Administrative Procedures Act
(‘‘APA’’).7 Thus, the APA’s notice-andcomment and delayed effective date
requirements in 5 U.S.C. 553(b)–(d) do
not apply because Congress has
specifically exempted agencies from
these requirements.8
Furthermore, because the inflation
adjustments made through these final
rules are required by Congress and
involve no Commission discretion or
policy judgments, these rules do not
need to be submitted to the Speaker of
the House of Representatives or the
31001(s)(1), 110 Stat. 1321, 1321–373; Federal
Reports Elimination Act of 1998, Public Law 105–
362, sec. 1301, 112 Stat. 3280.
2 Public Law 114–74, sec. 701, 129 Stat. 584, 599.
3 Inflation Adjustment Act sec. 3(2).
4 Inflation Adjustment Act sec. 4(a).
5 See Inflation Adjustment Act sec. 7(a) (requiring
OMB to ‘‘issue guidance to agencies on
implementing the inflation adjustments required
under this Act’’); see also Memorandum from Mick
Mulvaney, Director, Office of Management and
Budget, to Heads of Executive Departments and
Agencies, M–19–04 (Dec. 14, 2018), https://
www.whitehouse.gov/wp-content/uploads/2017/11/
m_19_04.pdf (‘‘OMB Memorandum’’).
6 Inflation Adjustment Act sec. 5.
7 Inflation Adjustment Act sec. 4(b)(2).
8 See, e.g., Asiana Airlines v. FAA, 134 F.3d 393,
396–99 (DC Cir. 1998) (finding APA ‘‘notice and
comment’’ requirement not applicable where
Congress clearly expressed intent to depart from
normal APA procedures).
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President of the Senate under the
Congressional Review Act, 5 U.S.C. 801
et seq. Moreover, because the APA’s
notice-and-comment procedures do not
apply to these final rules, the
Commission is not required to conduct
a regulatory flexibility analysis under 5
U.S.C. 603 or 604. See 5 U.S.C. 601(2),
604(a). Nor is the Commission required
to submit these revisions for
congressional review under FECA. See 5
U.S.C. 30111(d)(1), (4) (providing for
congressional review when Commission
‘‘prescribe[s]’’ a ‘‘rule of law’’).
The new penalty amounts will apply
to civil monetary penalties that are
assessed after the date the increase takes
effect, even if the associated violation
predated the increase.9
Explanation and Justification
The Inflation Adjustment Act requires
the Commission to annually adjust its
civil monetary penalties for inflation by
applying a cost-of-living-adjustment
(‘‘COLA’’) ratio.10 The COLA ratio is the
percentage that the Consumer Price
Index (‘‘CPI’’) 11 ‘‘for the month of
October preceding the date of the
adjustment’’ exceeds the CPI for October
of the previous year.12 To calculate the
adjusted penalty, the Commission must
increase the most recent civil monetary
penalty amount by the COLA ratio.13
According to the Office of Management
and Budget, the COLA ratio for 2019 is
0.02522, or 2.522%; thus, to calculate
the new penalties, the Commission must
multiply the most recent civil monetary
penalties in force by 1.02522.14
The Commission assesses two types of
civil monetary penalties that must be
adjusted for inflation. First are penalties
that are either negotiated by the
Commission or imposed by a court for
violations of FECA, the Presidential
Election Campaign Fund Act, or the
Presidential Primary Matching Payment
Account Act. These civil monetary
penalties are set forth at 11 CFR 111.24.
Second are the civil monetary penalties
assessed through the Commission’s
Administrative Fines Program for late
filing or non-filing of certain reports
required by FECA. See 52 U.S.C.
30109(a)(4)(C) (authorizing
Administrative Fines Program), 30104(a)
(requiring political committee treasurers
9 Inflation
Adjustment Act sec. 6.
COLA ratio must be applied to the most
recent civil monetary penalties. Inflation
Adjustment Act, sec. 4(a); see also OMB
Memorandum at 2.
11 The Inflation Adjustment Act, sec. 3, uses the
CPI ‘‘for all-urban consumers published by the
Department of Labor.’’
12 Inflation Adjustment Act, sec. 5(b)(1).
13 Inflation Adjustment Act, sec. 5(a), (b)(1).
14 OMB Memorandum at 1.
10 The
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to report receipts and disbursements
within certain time periods). The
penalty schedules for these civil
monetary penalties are set out at 11 CFR
111.43 and 111.44.
1. 11 CFR 111.24—Civil Penalties
FECA establishes the civil monetary
penalties for violations of FECA and the
other statutes within the Commission’s
jurisdiction. See 52 U.S.C. 30109(a)(5),
(6), (12). Commission regulations in 11
CFR 111.24 provide the current
inflation-adjusted amount for each such
Most recent
civil penalty
Section
11
11
11
11
11
CFR
CFR
CFR
CFR
CFR
civil monetary penalty. To calculate the
adjusted civil monetary penalty, the
Commission multiplies the most recent
penalty amount by the COLA ratio and
rounds that figure to the nearest dollar.
The actual adjustment to each civil
monetary penalty is shown in the chart
below.
111.24(a)(1) ...................................................................................................................
111.24(a)(2)(i) ................................................................................................................
111.24(a)(2)(ii) ...............................................................................................................
111.24(b) ........................................................................................................................
111.24(b) ........................................................................................................................
2. 11 CFR 111.43, 111.44
—Administrative Fines
FECA authorizes the Commission to
assess civil monetary penalties for
violations of the reporting requirements
of 52 U.S.C. 30104(a) according to the
penalty schedules ‘‘established and
published by the Commission.’’ 52
U.S.C. 30109(a)(4)(C)(i). The
Commission has established two such
schedules: The schedule in 11 CFR
111.43(a) applies to reports that are not
election sensitive, and the schedule in
11 CFR 111.43(b) applies to reports that
are election sensitive.15 Each schedule
contains two columns of penalties, one
for late-filed reports and one for nonfiled reports, with penalties based on
the level of financial activity in the
report and, if late-filed, its lateness.16 In
addition, 11 CFR 111.43(c) establishes a
civil monetary penalty for situations in
which a committee fails to file a report
and the Commission cannot calculate
the relevant level of activity. Finally, 11
CFR 111.44 establishes a civil monetary
penalty for failure to file timely reports
of contributions received less than 20
days, but more than 48 hours, before an
election. See 52 U.S.C. 30104(a)(6).
To determine the adjusted civil
monetary penalty amount for each level
of activity, the Commission multiplies
the most recent penalty amount by the
COLA ratio and rounds that figure to the
nearest dollar. The new civil monetary
penalties are shown in the schedules in
the rule text, below.
List of Subjects in 11 CFR Part 111
Administrative practice and
procedures, Elections, Law enforcement,
Penalties.
For the reasons set out in the
preamble, the Federal Election
COLA
$19,446
41,484
68,027
5,817
14,543
1. The authority citation for part 111
continues to read as follows:
■
Authority: 52 U.S.C. 30102(i), 30109,
30107(a), 30111(a)(8); 28 U.S.C. 2461 note; 31
U.S.C. 3701, 3711, 3716–3719, and 3720A, as
amended; 31 CFR parts 285 and 900–904.
§ 111.24
[Amended]
2. Section 111.24 is amended in the
table below by, for each section
indicated in the left column, removing
the number indicated in the middle
column, and adding in its place the
number indicated in the right column as
follows:
■
Remove
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§ 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
$19,936
42,530
69,743
5,964
14,910
PART 111—COMPLIANCE
PROCEDURE (52 U.S.C. 30109,
30107(a))
111.24(a)(1) .............................................................................................................................................................
111.24(a)(2)(i) ..........................................................................................................................................................
111.24(a)(2)(ii) .........................................................................................................................................................
111.24(b) ..................................................................................................................................................................
111.24(b) ..................................................................................................................................................................
3. Section 111.43 is amended by
revising paragraphs (a), (b), and (c) to
read as follows:
1.02522
1.02522
1.02522
1.02522
1.02522
Commission amends subchapter A of
chapter I of title 11 of the Code of
Federal Regulations as follows:
Section
■
New civil
penalty
$19,446
41,484
68,027
5,817
14,543
Add
$19,936
42,530
69,743
5,964
14,910
pre-election reports under 11 CFR 104.5,
shall be calculated in accordance with
the following schedule of penalties:
Table 1 to paragraph (a)
If the level of activity in the report was:
And the report was filed late, the civil money penalty
is:
Or the report was not filed, the civil money penalty is:
$1–4,999.99 a ..............................
[$35 + ($6 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$68 + ($6 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$146 + ($6 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
$341 × [1 + (.25 × Number of previous violations)].
$5,000–9,999.99 .........................
$10,000–24,999.99 .....................
15 Election sensitive reports are certain reports
due shortly before an election. See 11 CFR
111.43(d)(1).
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$410 × [1 + (.25 × Number of previous violations)].
$684 × [1 + (.25 × Number of previous violations)].
16 A report is considered to be ‘‘not filed’’ if it is
never filed or is filed more than a certain number
of days after its due date. See 11 CFR 111.43(e).
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If the level of activity in the report was:
And the report was filed late, the civil money penalty
is:
Or the report was not filed, the civil money penalty is:
$25,000–49,999.99 .....................
[$290 + ($28 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$437 + ($110 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$581 + ($146 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$871 + ($182 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$1164 + ($217 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$1453 + ($254 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$2181 + ($290 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$2908 + ($290 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$3633 + ($290 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$4360 + ($290 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$5086 + ($290 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$5813 + ($290 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$6541 + ($290 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$7267 + ($290 × Number of days late)] × [1 + (.25
Number of previous violations)].
×
$1230 × [1 + (.25 × Number of previous violations)].
×
$3925 × [1 + (.25 × Number of previous violations)].
×
$5086 × [1 + (.25 × Number of previous violations)].
×
$6541 × [1 + (.25 × Number of previous violations)].
×
$7994 × [1 + (.25 × Number of previous violations)].
×
$9446 × [1 + (.25 × Number of previous violations)].
×
$11,627 × [1 + (.25 × Number of previous violations)].
×
$13,080 × [1 + (.25 × Number of previous violations)].
×
$13,806 × [1 + (.25 × Number of previous violations)].
×
$14,535 × [1 + (.25 × Number of previous violations)].
×
$15,260 × [1 + (.25 × Number of previous violations)].
×
$15,987 × [1 + (.25 × Number of previous violations)].
×
$16,713 × [1 + (.25 × Number of previous violations)].
×
$17,440 × [1 + (.25 × Number of previous violations)].
$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 .................
$850,000–949,999.99 .................
$950,000 or over ........................
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
Table 1 to paragraph (b)
If the level of activity in the report was:
And the report was filed late, the civil money penalty
is:
Or the report was not filed, the civil money penalty is:
$1–$4,999.99 a ............................
[$68 + ($13 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$137 + ($13 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$205 + ($13 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$437 + ($35 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$654 + ($110 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$871 + ($146 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$1308 + ($182 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$1744 + ($217 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$2181 + ($254 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$3270 + ($290 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$4360 + ($290 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$5450 + ($290 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$6541 + ($290 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$7630 + ($290 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$8719 + ($290 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$9810 + ($290 × Number of days late)] × [1 + (.25
Number of previous violations)].
×
$684 × [1 + (.25 × Number of previous violations)].
×
$820 × [1 + (.25 × Number of previous violations)].
×
$1230 × [1 + (.25 × Number of previous violations)].
×
$1913 × [1 + (.25 × Number of previous violations)].
×
$4360 × [1 + (.25 × Number of previous violations)].
×
$5813 × [1 + (.25 × Number of previous violations)].
×
$7267 × [1 + (.25 × Number of previous violations)].
×
$8719 × [1 + (.25 × Number of previous violations)].
×
$10,901 × [1 + (.25 × Number of previous violations)].
×
$13,080 × [1 + (.25 × Number of previous violations)].
×
$14,535 × [1 + (.25 × Number of previous violations)].
×
$15,987 × [1 + (.25 × Number of previous violations)].
×
$17,440 × [1 + (.25 × Number of previous violations)].
×
$18,895 × [1 + (.25 × Number of previous violations)].
×
$20,347 × [1 + (.25 × Number of previous violations)].
×
$21,799 × [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 .....................
$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 .................
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accordance with the following schedule
of penalties:
$550,000–649,999.99 .................
$650,000–749,999.99 .................
$750,000–849,999.99 .................
$850,000–949,999.99 .................
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If the level of activity in the report was:
And the report was filed late, the civil money penalty
is:
Or the report was not filed, the civil money penalty is:
$950,000 or over ........................
[$10,901 + ($290 × Number of days late)] × [1 + (.25
× Number of previous violations)].
$23,254 × [1 + (.25 × Number of 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 $7,994.
*
*
*
*
*
§ 111.44
[Amended]
4. Amend § 111.44(a)(1) by removing
‘‘$142’’ and adding in its place ‘‘$146’’.
■
On behalf of the Commission.
Dated: December 18, 2018.
Caroline C. Hunter,
Chair, Federal Election Commission.
[FR Doc. 2018–27801 Filed 12–26–18; 8:45 am]
BILLING CODE 6715–01–P
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the
Currency
12 CFR Parts 19 and 109
Notification of Inflation Adjustments
for Civil Money Penalties
Office of the Comptroller of the
Currency, Treasury.
ACTION: Notification of Monetary
Penalties 2019.
AGENCY:
The Office of the Comptroller
of the Currency (OCC) is providing
notice of its maximum civil money
penalties as adjusted for inflation. The
inflation adjustments are required to
implement the Federal Civil Penalties
SUMMARY:
Inflation Adjustment Act of 1990, as
amended by the Federal Civil Penalties
Inflation Adjustment Act Improvements
Act of 2015.
DATES: The adjusted maximum amount
of civil money penalties in this
document are applicable to penalties
assessed on or after January 1, 2019, for
conduct occurring on or after November
2, 2015.
FOR FURTHER INFORMATION CONTACT: Lee
Walzer, Counsel, Chief Counsel’s Office,
(202) 649–5490, or, for persons who are
deaf or hearing impaired, TTY, (202)
649–5597, Office of the Comptroller of
the Currency.
SUPPLEMENTARY INFORMATION:
This document announces changes to
the maximum amount of each civil
money penalty (CMP) within the OCC’s
jurisdiction to administer to account for
inflation pursuant to the Federal Civil
Penalties Inflation Adjustment Act of
1990 (the 1990 Adjustment Act),1 as
amended by the Federal Civil Penalties
Inflation Adjustment Act Improvements
Act of 2015 (the 2015 Adjustment Act).2
Under the 1990 Adjustment Act, as
amended, federal agencies must make
annual adjustments to the maximum
amount of each CMP the agency
administers. The Office of Management
and Budget (OMB) is required to issue
guidance to federal agencies no later
than December 15 of each year
providing an inflation adjustment
multiplier (i.e. the inflation adjustment
factor agencies must use) applicable to
CMPs assessed in the following year.
The agencies are required to publish
their CMPs, adjusted pursuant to the
multiplier provided by OMB, by January
15 of the applicable year.
To the extent an agency has codified
a CMP amount in its regulations, the
agency would need to update that
amount by regulation. However, if an
agency has codified the formula for
making the CMP adjustments, then
subsequent adjustments can be made
solely by notice.3 In 2017, the OCC
codified the formula for making CMP
adjustments in its rules.4 In 2018, the
OCC published a final regulation to
remove the CMP amounts from its
regulations, while updating those
amounts for inflation through the notice
process.5
On December 14, 2018, the OMB
issued guidance to affected agencies on
implementing the required annual
adjustment, which included the relevant
inflation multiplier.6 The OCC has
applied that multiplier to the maximum
CMPs allowable in 2018 for national
banks and federal savings associations
as listed in the 2018 CMP notice to
calculate the maximum amount of CMPs
that may be assessed by the OCC in
2019.7 There were no new statutory
CMPs administered by the OCC during
2018.
The following charts provide the
inflation-adjusted CMPs for use
beginning on January 1, 2019, pursuant
to 12 CFR 19.240(b) and 109.103(c) for
conduct occurring on or after November
2, 2015:
PENALTIES APPLICABLE TO NATIONAL BANKS
Description and Tier
(if applicable)
12 U.S.C. 93(b) .......................................
Violation of Various Provisions of the National Bank Act:
Tier 1 ........................................................................................................................
Tier 2 ........................................................................................................................
Tier 3 ........................................................................................................................
Violation of Reporting Requirements:
Tier 1 ........................................................................................................................
Tier 2 ........................................................................................................................
12 U.S.C. 164 ..........................................
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Maximum
Penalty Amount
(in Dollars) 1
U.S. Code Citation
1 Pub. L. 101–410, Oct. 5, 1990, 104 Stat. 890,
codified at 28 U.S.C. 2461 note.
2 Pub. L. 114–74, Title VII, section 701(b), Nov.
2, 2015, 129 Stat. 599, codified at 28 U.S.C. 2461
note.
3 See OMB Memorandum M–18–03,
‘‘Implementation of the 2018 Annual Adjustment
Pursuant to the Federal Civil Penalties Inflation
Adjustment Act Improvements Act of 2015’’ at 4,
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which permits agencies that have codified the
formula to adjust CMPs for inflation to update the
penalties through a notice rather than a regulation.
4 82 FR 8584 (January 27, 2017).
5 83 FR 1517 (January 12, 2018) (final rule); 83 FR
1657 (Jan. 12, 2018) (2018 CMP Notice).
6 The inflation adjustment multiplier for 2019 is
1.02522. See OMB Memorandum M–19–04,
‘‘Implementation of Penalty Inflation Adjustments
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10,067
50,334
2 2,013,399
4,027
40,269
for 2019, Pursuant to the Federal Civil Penalties
Inflation Adjust Act Improvements Act of 2015’’ at
1 (Dec. 14, 2018).
7 Penalties assessed for violations occurring prior
to November 2, 2015, will be subject to the
maximum amounts set forth in the OCC’s
regulations in effect prior to the enactment of the
2015 Adjustment Act.
E:\FR\FM\27DER1.SGM
27DER1
]]>Agencies
[Federal Register Volume 83, Number 247 (Thursday, December 27, 2018)]
[Rules and Regulations]
[Pages 66596-66599]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27801]
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FEDERAL ELECTION COMMISSION
11 CFR Part 111
[Notice 2018-18]
Civil Monetary Penalties Annual Inflation Adjustments
AGENCY: Federal Election Commission.
ACTION: Final rules.
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SUMMARY: As required by the Federal Civil Penalties Inflation
Adjustment Act of 1990, the Federal Election Commission is adjusting
for inflation the civil monetary penalties established under the
Federal Election Campaign Act, the Presidential Election Campaign Fund
Act, and the Presidential Primary Matching Payment Account Act. The
civil monetary penalties being adjusted are those negotiated by the
Commission or imposed by a court for certain statutory violations, and
those imposed by the Commission for late filing of or failure to file
certain reports required by the Federal Election Campaign Act. The
adjusted civil monetary penalties are calculated according to a
statutory formula and the adjusted amounts will apply to penalties
assessed after the effective date of these rules.
DATES: The final rules are effective on January 1, 2019.
FOR FURTHER INFORMATION CONTACT: Mr. Robert M. Knop, Assistant General
Counsel, or Mr. Joseph P. Wenzinger, Attorney, Office of General
Counsel, (202) 694-1650 or (800) 424-9530.
SUPPLEMENTARY INFORMATION: The Federal Civil Penalties Inflation
Adjustment Act of 1990 (the ``Inflation Adjustment Act''),\1\ as
amended by the Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015 (the ``2015 Act''),\2\ requires federal
agencies, including the Commission, to adjust for inflation the civil
monetary penalties within their jurisdiction according to prescribed
formulas. A civil monetary penalty is ``any penalty, fine, or other
sanction'' that (1) ``is for a specific monetary amount'' or ``has a
maximum amount'' under federal law; and (2) that a federal agency
assesses or enforces ``pursuant to an administrative proceeding or a
civil action'' in federal court.\3\ Under the Federal Election Campaign
Act, 52 U.S.C. 30101-45 (``FECA''), the Commission may seek and assess
civil monetary penalties for violations of FECA, the Presidential
Election Campaign Fund Act, 26 U.S.C. 9001-13, and the Presidential
Primary Matching Payment Account Act, 26 U.S.C. 9031-42.
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\1\ Public Law 101-410, 104 Stat. 890 (codified at 28 U.S.C.
2461 note), amended by Debt Collection Improvement Act of 1996,
Public Law 104-134, sec. 31001(s)(1), 110 Stat. 1321, 1321-373;
Federal Reports Elimination Act of 1998, Public Law 105-362, sec.
1301, 112 Stat. 3280.
\2\ Public Law 114-74, sec. 701, 129 Stat. 584, 599.
\3\ Inflation Adjustment Act sec. 3(2).
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The Inflation Adjustment Act requires federal agencies to adjust
their civil penalties annually, and the adjustments must take effect no
later than January 15 of every year.\4\ Pursuant to guidance issued by
the Office of Management and Budget,\5\ the Commission is now adjusting
its civil monetary penalties for 2019.\6\
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\4\ Inflation Adjustment Act sec. 4(a).
\5\ See Inflation Adjustment Act sec. 7(a) (requiring OMB to
``issue guidance to agencies on implementing the inflation
adjustments required under this Act''); see also Memorandum from
Mick Mulvaney, Director, Office of Management and Budget, to Heads
of Executive Departments and Agencies, M-19-04 (Dec. 14, 2018),
https://www.whitehouse.gov/wp-content/uploads/2017/11/m_19_04.pdf
(``OMB Memorandum'').
\6\ Inflation Adjustment Act sec. 5.
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The Commission must adjust for inflation its civil monetary
penalties ``notwithstanding Section 553'' of the Administrative
Procedures Act (``APA'').\7\ Thus, the APA's notice-and-comment and
delayed effective date requirements in 5 U.S.C. 553(b)-(d) do not apply
because Congress has specifically exempted agencies from these
requirements.\8\
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\7\ Inflation Adjustment Act sec. 4(b)(2).
\8\ See, e.g., Asiana Airlines v. FAA, 134 F.3d 393, 396-99 (DC
Cir. 1998) (finding APA ``notice and comment'' requirement not
applicable where Congress clearly expressed intent to depart from
normal APA procedures).
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Furthermore, because the inflation adjustments made through these
final rules are required by Congress and involve no Commission
discretion or policy judgments, these rules do not need to be submitted
to the Speaker of the House of Representatives or the President of the
Senate under the Congressional Review Act, 5 U.S.C. 801 et seq.
Moreover, because the APA's notice-and-comment procedures do not apply
to these final rules, the Commission is not required to conduct a
regulatory flexibility analysis under 5 U.S.C. 603 or 604. See 5 U.S.C.
601(2), 604(a). Nor is the Commission required to submit these
revisions for congressional review under FECA. See 5 U.S.C.
30111(d)(1), (4) (providing for congressional review when Commission
``prescribe[s]'' a ``rule of law'').
The new penalty amounts will apply to civil monetary penalties that
are assessed after the date the increase takes effect, even if the
associated violation predated the increase.\9\
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\9\ Inflation Adjustment Act sec. 6.
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Explanation and Justification
The Inflation Adjustment Act requires the Commission to annually
adjust its civil monetary penalties for inflation by applying a cost-
of-living-adjustment (``COLA'') ratio.\10\ The COLA ratio is the
percentage that the Consumer Price Index (``CPI'') \11\ ``for the month
of October preceding the date of the adjustment'' exceeds the CPI for
October of the previous year.\12\ To calculate the adjusted penalty,
the Commission must increase the most recent civil monetary penalty
amount by the COLA ratio.\13\ According to the Office of Management and
Budget, the COLA ratio for 2019 is 0.02522, or 2.522%; thus, to
calculate the new penalties, the Commission must multiply the most
recent civil monetary penalties in force by 1.02522.\14\
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\10\ The COLA ratio must be applied to the most recent civil
monetary penalties. Inflation Adjustment Act, sec. 4(a); see also
OMB Memorandum at 2.
\11\ The Inflation Adjustment Act, sec. 3, uses the CPI ``for
all-urban consumers published by the Department of Labor.''
\12\ Inflation Adjustment Act, sec. 5(b)(1).
\13\ Inflation Adjustment Act, sec. 5(a), (b)(1).
\14\ OMB Memorandum at 1.
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The Commission assesses two types of civil monetary penalties that
must be adjusted for inflation. First are penalties that are either
negotiated by the Commission or imposed by a court for violations of
FECA, the Presidential Election Campaign Fund Act, or the Presidential
Primary Matching Payment Account Act. These civil monetary penalties
are set forth at 11 CFR 111.24. Second are the civil monetary penalties
assessed through the Commission's Administrative Fines Program for late
filing or non-filing of certain reports required by FECA. See 52 U.S.C.
30109(a)(4)(C) (authorizing Administrative Fines Program), 30104(a)
(requiring political committee treasurers
[[Page 66597]]
to report receipts and disbursements within certain time periods). The
penalty schedules for these civil monetary penalties are set out at 11
CFR 111.43 and 111.44.
1. 11 CFR 111.24--Civil Penalties
FECA establishes the civil monetary penalties for violations of
FECA and the other statutes within the Commission's jurisdiction. See
52 U.S.C. 30109(a)(5), (6), (12). Commission regulations in 11 CFR
111.24 provide the current inflation-adjusted amount for each such
civil monetary penalty. To calculate the adjusted civil monetary
penalty, the Commission multiplies the most recent penalty amount by
the COLA ratio and rounds that figure to the nearest dollar.
The actual adjustment to each civil monetary penalty is shown in
the chart below.
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Most recent New civil
Section civil penalty COLA penalty
----------------------------------------------------------------------------------------------------------------
11 CFR 111.24(a)(1)............................................. $19,446 1.02522 $19,936
11 CFR 111.24(a)(2)(i).......................................... 41,484 1.02522 42,530
11 CFR 111.24(a)(2)(ii)......................................... 68,027 1.02522 69,743
11 CFR 111.24(b)................................................ 5,817 1.02522 5,964
11 CFR 111.24(b)................................................ 14,543 1.02522 14,910
----------------------------------------------------------------------------------------------------------------
2. 11 CFR 111.43, 111.44 --Administrative Fines
FECA authorizes the Commission to assess civil monetary penalties
for violations of the reporting requirements of 52 U.S.C. 30104(a)
according to the penalty schedules ``established and published by the
Commission.'' 52 U.S.C. 30109(a)(4)(C)(i). The Commission has
established two such schedules: The schedule in 11 CFR 111.43(a)
applies to reports that are not election sensitive, and the schedule in
11 CFR 111.43(b) applies to reports that are election sensitive.\15\
Each schedule contains two columns of penalties, one for late-filed
reports and one for non-filed reports, with penalties based on the
level of financial activity in the report and, if late-filed, its
lateness.\16\ In addition, 11 CFR 111.43(c) establishes a civil
monetary penalty for situations in which a committee fails to file a
report and the Commission cannot calculate the relevant level of
activity. Finally, 11 CFR 111.44 establishes a civil monetary penalty
for failure to file timely reports of contributions received less than
20 days, but more than 48 hours, before an election. See 52 U.S.C.
30104(a)(6).
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\15\ Election sensitive reports are certain reports due shortly
before an election. See 11 CFR 111.43(d)(1).
\16\ A report is considered to be ``not filed'' if it is never
filed or is filed more than a certain number of days after its due
date. See 11 CFR 111.43(e).
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To determine the adjusted civil monetary penalty amount for each
level of activity, the Commission multiplies the most recent penalty
amount by the COLA ratio and rounds that figure to the nearest dollar.
The new civil monetary penalties are shown in the schedules in the rule
text, below.
List of Subjects in 11 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 (52 U.S.C. 30109, 30107(a))
0
1. The authority citation for part 111 continues to read as follows:
Authority: 52 U.S.C. 30102(i), 30109, 30107(a), 30111(a)(8); 28
U.S.C. 2461 note; 31 U.S.C. 3701, 3711, 3716-3719, and 3720A, as
amended; 31 CFR parts 285 and 900-904.
Sec. 111.24 [Amended]
0
2. Section 111.24 is amended in the table below by, for each section
indicated in the left column, removing the number indicated in the
middle column, and adding in its place the number indicated in the
right column as follows:
------------------------------------------------------------------------
Section Remove Add
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111.24(a)(1)............................ $19,446 $19,936
111.24(a)(2)(i)......................... 41,484 42,530
111.24(a)(2)(ii)........................ 68,027 69,743
111.24(b)............................... 5,817 5,964
111.24(b)............................... 14,543 14,910
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0
3. Section 111.43 is amended by revising paragraphs (a), (b), and (c)
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:
Table 1 to paragraph (a)
----------------------------------------------------------------------------------------------------------------
If the level of activity in the report And the report was filed late, the Or the report was not filed, the
was: civil money penalty is: civil money penalty is:
----------------------------------------------------------------------------------------------------------------
$1-4,999.99 \a\....................... [$35 + ($6 x Number of days late)] $341 x [1 + (.25 x Number of
x [1 + (.25 x Number of previous previous violations)].
violations)].
$5,000-9,999.99....................... [$68 + ($6 x Number of days late)] $410 x [1 + (.25 x Number of
x [1 + (.25 x Number of previous previous violations)].
violations)].
$10,000-24,999.99..................... [$146 + ($6 x Number of days late)] $684 x [1 + (.25 x Number of
x [1 + (.25 x Number of previous previous violations)].
violations)].
[[Page 66598]]
$25,000-49,999.99..................... [$290 + ($28 x Number of days $1230 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$50,000-74,999.99..................... [$437 + ($110 x Number of days $3925 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$75,000-99,999.99..................... [$581 + ($146 x Number of days $5086 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$100,000-149,999.99................... [$871 + ($182 x Number of days $6541 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$150,000-199,999.99................... [$1164 + ($217 x Number of days $7994 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$200,000-249,999.99................... [$1453 + ($254 x Number of days $9446 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$250,000-349,999.99................... [$2181 + ($290 x Number of days $11,627 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$350,000-449,999.99................... [$2908 + ($290 x Number of days $13,080 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$450,000-549,999.99................... [$3633 + ($290 x Number of days $13,806 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$550,000-649,999.99................... [$4360 + ($290 x Number of days $14,535 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$650,000-749,999.99................... [$5086 + ($290 x Number of days $15,260 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$750,000-849,999.99................... [$5813 + ($290 x Number of days $15,987 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$850,000-949,999.99................... [$6541 + ($290 x Number of days $16,713 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$950,000 or over...................... [$7267 + ($290 x Number of days $17,440 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
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\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:
Table 1 to paragraph (b)
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If the level of activity in the report And the report was filed late, the Or the report was not filed, the
was: civil money penalty is: civil money penalty is:
----------------------------------------------------------------------------------------------------------------
$1-$4,999.99 \a\...................... [$68 + ($13 x Number of days late)] $684 x [1 + (.25 x Number of
x [1 + (.25 x Number of previous previous violations)].
violations)].
$5,000-$9,999.99...................... [$137 + ($13 x Number of days $820 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$10,000-24,999.99..................... [$205 + ($13 x Number of days $1230 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$25,000-49,999.99..................... [$437 + ($35 x Number of days $1913 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$50,000-74,999.99..................... [$654 + ($110 x Number of days $4360 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$75,000-99,999.99..................... [$871 + ($146 x Number of days $5813 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$100,000-149,999.99................... [$1308 + ($182 x Number of days $7267 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$150,000-199,999.99................... [$1744 + ($217 x Number of days $8719 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$200,000-249,999.99................... [$2181 + ($254 x Number of days $10,901 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$250,000-349,999.99................... [$3270 + ($290 x Number of days $13,080 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$350,000-449,999.99................... [$4360 + ($290 x Number of days $14,535 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$450,000-549,999.99................... [$5450 + ($290 x Number of days $15,987 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$550,000-649,999.99................... [$6541 + ($290 x Number of days $17,440 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$650,000-749,999.99................... [$7630 + ($290 x Number of days $18,895 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$750,000-849,999.99................... [$8719 + ($290 x Number of days $20,347 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
$850,000-949,999.99................... [$9810 + ($290 x Number of days $21,799 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
[[Page 66599]]
$950,000 or over...................... [$10,901 + ($290 x Number of days $23,254 x [1 + (.25 x Number of
late)] x [1 + (.25 x Number of previous violations)].
previous violations)].
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\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 $7,994.
* * * * *
Sec. 111.44 [Amended]
0
4. Amend Sec. 111.44(a)(1) by removing ``$142'' and adding in its
place ``$146''.
On behalf of the Commission.
Dated: December 18, 2018.
Caroline C. Hunter,
Chair, Federal Election Commission.
[FR Doc. 2018-27801 Filed 12-26-18; 8:45 am]
BILLING CODE 6715-01-P
