Civil Monetary Penalties Annual Inflation Adjustments, 1737-1740 [2020-29184]
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Rules and Regulations
Federal Register
Vol. 86, No. 6
Monday, January 11, 2021
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.
DEPARTMENT OF HOMELAND
SECURITY
§ 1235.6
1. On page 80400, in the third column,
in part 1235, in amendatory instruction
38c is corrected to read ‘‘Revising
paragraphs (a)(2)(i) and (iii); and’’.
DEPARTMENT OF JUSTICE
Dated: January 7, 2021.
Rosemary Hart,
Special Counsel and Liaison to the Federal
Register.
Executive Office for Immigration
Review
8 CFR Parts 1235
[FR Doc. 2021–00409 Filed 1–8–21; 8:45 am]
[EOIR Docket No. 18–0102; A.G. Order No.
4922–2020]
RIN 1125–AA94
Department of Homeland
Security; Executive Office for
Immigration Review, Department of
Justice.
ACTION: Final rule; correction.
AGENCY:
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11 CFR Part 111
[NOTICE 2020–08]
Civil Monetary Penalties Annual
Inflation Adjustments
Federal Election Commission.
Final rule.
AGENCY:
ACTION:
The Department of Justice is
correcting a final rule that appeared in
the Federal Register on December 11,
2020. That document amended
Department of Homeland Security and
Department of Justice (‘‘the
Departments’’) regulations governing
credible fear determinations.
Individuals found to have a credible fear
will have their claims for asylum,
withholding of removal under
Immigration and Nationality or
protection under the regulations issued
pursuant to the legislation
implementing the Convention Against
Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment,
adjudicated by an immigration judge
within the Executive Office for
Immigration Review in streamlined
proceedings (rather than under section
240 of the Act). The final rule also
specifid what standard of review applies
in such streamlined proceedings.
DATES: Effective on January 11, 2021.
FOR FURTHER INFORMATION CONTACT:
Lauren Alder Reid, Assistant Director,
SUMMARY:
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BILLING CODE 4410–30–P
FEDERAL ELECTION COMMISSION
Procedures for Asylum and
Withholding of Removal; Credible Fear
and Reasonable Fear Review
19:42 Jan 08, 2021
[Corrected]
■
RIN 1615–AC42
VerDate Sep<11>2014
Office of Policy, Executive Office for
Immigration Review, 5107 Leesburg
Pike, Falls Church, VA 22041, telephone
(703) 305–0289 (not a toll-free call).
SUPPLEMENTARY INFORMATION: In FR Rule
Doc. 2020–26875, appearing on page
80400 in the Federal Register of Friday,
December 11, 2020, the following
correction is made:
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 11, 2021.
FOR FURTHER INFORMATION CONTACT: Mr.
Robert M. Knop, Assistant General
Counsel, Mr. Joseph P. Wenzinger,
Attorney, or Ms. Terrell D. Stansbury,
SUMMARY:
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Paralegal, 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.
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
2021.6
The Commission must adjust for
inflation its civil monetary penalties
‘‘notwithstanding Section 553’’ of the
Administrative Procedure Act
(‘‘APA’’).7 Thus, the APA’s notice-andcomment and delayed effective date
requirements in 5 U.S.C. 553(b)–(d) do
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).
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
Russell T. Vought, Director, Office of Management
and Budget, to Heads of Executive Departments and
Agencies, M–21–10, Dec. 23, 2020, https://
www.whitehouse.gov/wp-content/uploads/2020/12/
M-21-10.pdf (‘‘OMB Memorandum’’).
6 Inflation Adjustment Act sec. 5.
7 Inflation Adjustment Act sec. 4(b)(2).
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Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Rules and Regulations
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 United States House of
Representatives or the President of the
United States 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 the
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 2021 is
0.01182, or 1.182%; thus, to calculate
the new penalties, the Commission must
multiply the most recent civil monetary
penalties in force by 1.01182.14
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
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CFR
CFR
CFR
CFR
CFR
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.
Most recent
civil penalty
Section
11
11
11
11
11
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), and
30104(a) (requiring political committee
treasurers 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.
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
penalty schedules: The penalty
schedule in 11 CFR 111.43(a) applies to
reports that are not election sensitive,
and the penalty schedule in 11 CFR
111.43(b) applies to reports that are
election sensitive.15 Each penalty
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).
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
8 See, e.g., Asiana Airlines v. FAA, 134 F.3d 393,
396–99 (D.C. Cir. 1998) (finding APA ‘‘notice and
comment’’ requirement not applicable where
Congress clearly expressed intent to depart from
normal APA procedures).
9 Inflation Adjustment Act sec. 6.
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).
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$20,288
43,280
70,973
6,069
15,173
COLA
New civil
penalty
1.01182
1.01182
1.01182
1.01182
1.01182
$20,528
43,792
71,812
6,141
15,352
penalties are shown in the schedules in
the rule text, below.
List of Subjects in 11 CFR Part 111
Administrative practice and
procedure, 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))
1. The authority citation for part 111
continues to read as follows:
■
14 OMB
Memorandum at 1.
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).
15 Election
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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:
Section
Remove
111.24(a)(1) .............................................................................................................................................................
111.24(a)(2)(i) ..........................................................................................................................................................
111.24(a)(2)(ii) .........................................................................................................................................................
111.24(b) ..................................................................................................................................................................
111.24(b) ..................................................................................................................................................................
§ 111.43 What are the schedules of
penalties?
3. Section 111.43 is amended by
revising paragraphs (a), (b), and (c) to
read as follows:
■
(a) The civil money penalty for all
reports that are filed late or not filed,
1739
$20,288
43,280
70,973
6,069
15,173
Add
$20,528
43,792
71,812
6,141
15,352
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 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 1 .......................
[$36 + ($6 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$70 + ($6 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$151 + ($6 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$298 + ($28 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$450 + ($113 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$598 + ($151 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$896 + ($187 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$1199 + ($224 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$1496 + ($261 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$2245 + ($298 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$2994 + ($298 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$3741 + ($298 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$4489 + ($298 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$5237 + ($298 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$5986 + ($298 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$6735 + ($298 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
[$7482 + ($298 × Number of days late)] × [1 + (.25 ×
Number of previous violations)].
$351 × [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 ..........
$550,000–649,999.99 ..........
$650,000–749,999.99 ..........
$750,000–849,999.99 ..........
$850,000–949,999.99 ..........
$950,000 or over ..................
1The
$422 × [1 + (.25 × Number of previous violations)]
$704 × [1 + (.25 × Number of previous violations)].
$1267 × [1 + (.25 × Number of previous violations)].
$4041 × [1 + (.25 × Number of previous violations)].
$5237 × [1 + (.25 × Number of previous violations)].
$6735 × [1 + (.25 × Number of previous violations)].
$8231 × [1 + (.25 × Number of previous violations)].
$9727 × [1 + (.25 × Number of previous violations)].
$11,972 × [1 + (.25 × Number of previous violations)].
$13,468 × [1 + (.25 × Number of previous violations)].
$14,216 × [1 + (.25 × Number of previous violations)].
$14,966 × [1 + (.25 × Number of previous violations)].
$15,713 × [1 + (.25 × Number of previous violations)].
$16,461 × [1 + (.25 × Number of previous violations)].
$17,209 × [1 + (.25 × Number of previous violations)]
$17,958 × [1 + (.25 × Number of previous violations)].
civil money penalty for a respondent who does not have any previous violations will not e×ceed 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:
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TABLE 2 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 1 .....................
[$70 + ($13 × Number of days late)] × [1 + (.25 × Number of previous violations)].
$704 × [1 + (.25 × Number of previous violations)].
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Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Rules and Regulations
TABLE 2 TO PARAGRAPH (b)—Continued
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:
$5,000–$9,999.99 ................
[$141 + ($13 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$211 + ($13 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$450 + ($36 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$674 + ($113 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$896 + ($151 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$1347 + ($187 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$1796 + ($224 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$2245 + ($261 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$3367 + ($298 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$4489 + ($298 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$5612 + ($298 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$6735 + ($298 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$7857 + ($298 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$8978 + ($298 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$10,101 + ($298 × Number of days late)] × [1 + (.25
Number of previous violations)].
[$11,224 + ($298 × Number of days late)] × [1 + (.25
Number of previous violations)].
×
$844 × [1 + (.25 × Number of previous violations)].
×
$1267 × [1 + (.25 × Number of previous violations)].
×
$1970 × [1 + (.25 × Number of previous violations)].
×
$4489 × [1 + (.25 × Number of previous violations)].
×
$5986 × [1 + (.25 × Number of previous violations)].
×
$7482 × [1 + (.25 × Number of previous violations)].
×
$8978 × [1 + (.25 × Number of previous violations)].
×
$11,224 × [1 + (.25 × Number of previous violations)].
×
$13,468 × [1 + (.25 × Number of previous violations)].
×
$14,966 × [1 + (.25 × Number of previous violations)].
×
$16,461 × [1 + (.25 × Number of previous violations)].
×
$17,958 × [1 + (.25 × Number of previous violations)].
×
$19,455 × [1 + (.25 × Number of previous violations)].
×
$20,951 × [1 + (.25 × Number of previous violations)].
×
$22,446 × [1 + (.25 × Number of previous violations)].
×
$23,944 × [1 + (.25 × Number of previous violations)].
$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 ..........
$850,000–949,999.99 ..........
$950,000 or over ..................
1 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 $8,231.
*
*
*
*
*
§ 111.44
[Amended]
4. Amend § 111.44(a)(1) by removing
‘‘$149’’ and adding in its place ‘‘$151’’.
■
Dated: December 30, 2020.
On behalf of the Commission.
Ellen L. Weintraub,
Commissioner, Federal Election Commission.
[FR Doc. 2020–29184 Filed 1–8–21; 8:45 am]
BILLING CODE 6715–01–P
FEDERAL DEPOSIT INSURANCE
CORPORATION
12 CFR Part 313
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RIN 3064–AF25
Collection of Civil Money Penalty Debt
Federal Deposit Insurance
Corporation.
ACTION: Final rule.
AGENCY:
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The Federal Deposit
Insurance Corporation (FDIC) is
amending the FDIC’s Procedures for
Corporate Debt Collection to include
delinquent civil money penalties within
the debt covered by those procedures.
DATES: The final rule is effective on
February 10, 2021.
FOR FURTHER INFORMATION CONTACT:
Graham N. Rehrig, Senior Attorney
(202) 898–3829, grehrig@fdic.gov;
Gabrielle A.J. Beam, Counsel (Team
Leader) (816) 234–8503, gabeam@
fdic.gov; or Michael P. Farrell, Counsel
(202) 898–3853, mfarrell@fdic.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Policy Objectives
The Debt Collection Improvement Act
of 1996 (DCIA) requires Federal
agencies to collect debts owed to the
United States in accordance with
regulations that either adopt, or at least
are consistent with, standards
prescribed by the Department of Justice
(DOJ) and Department of the Treasury
(Treasury).1 Treasury has issued
regulations applicable to collection
under the DCIA, and these regulations,
1 See Public Law 104–134, 110 Stat. 1321–358
(codified at 31 U.S.C. 3701 et seq.).
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known as the Federal Claims Collection
Standards (FCCS), became effective on
December 22, 2000. The purpose of the
DCIA is to enhance the efficiency and
effectiveness of the Federal
Government’s efforts to collect debt
owed to the United States. A principal
feature of the DCIA was the creation of
the Treasury Offset Program (TOP), a
Government-wide database of
delinquent debtors that offsets (reduces)
Federal payments to recipients who also
owe delinquent debt to the United
States and that remits the offset amount
to the creditor agency.
The FDIC is amending its regulations,
in accordance with the DCIA, to add the
collection of civil money penalty (CMP)
debt to the FDIC’s existing debtcollection regulations found in 12 CFR
part 313. Part 313 does not currently
provide for collection of CMP debt. The
amendments would allow the FDIC to
refer debts arising from its enforcementrelated activities to Treasury for
collection, thereby improving the
effectiveness of the FDIC’s debtcollection efforts.
II. Background
In 2002, the FDIC, in compliance with
the DCIA, promulgated 12 CFR part 313
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[Federal Register Volume 86, Number 6 (Monday, January 11, 2021)]
[Rules and Regulations]
[Pages 1737-1740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-29184]
=======================================================================
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FEDERAL ELECTION COMMISSION
11 CFR Part 111
[NOTICE 2020-08]
Civil Monetary Penalties Annual Inflation Adjustments
AGENCY: Federal Election Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
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 11, 2021.
FOR FURTHER INFORMATION CONTACT: Mr. Robert M. Knop, Assistant General
Counsel, Mr. Joseph P. Wenzinger, Attorney, or Ms. Terrell D.
Stansbury, Paralegal, 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 2021.\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
Russell T. Vought, Director, Office of Management and Budget, to
Heads of Executive Departments and Agencies, M-21-10, Dec. 23, 2020,
https://www.whitehouse.gov/wp-content/uploads/2020/12/M-21-10.pdf
(``OMB Memorandum'').
\6\ Inflation Adjustment Act sec. 5.
---------------------------------------------------------------------------
The Commission must adjust for inflation its civil monetary
penalties ``notwithstanding Section 553'' of the Administrative
Procedure Act (``APA'').\7\ Thus, the APA's notice-and-comment and
delayed effective date requirements in 5 U.S.C. 553(b)-(d) do
[[Page 1738]]
not apply because Congress has specifically exempted agencies from
these requirements.\8\
---------------------------------------------------------------------------
\7\ Inflation Adjustment Act sec. 4(b)(2).
\8\ See, e.g., Asiana Airlines v. FAA, 134 F.3d 393, 396-99
(D.C. Cir. 1998) (finding APA ``notice and comment'' requirement not
applicable where Congress clearly expressed intent to depart from
normal APA procedures).
---------------------------------------------------------------------------
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 United States House of Representatives or the
President of the United States 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
the 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\
---------------------------------------------------------------------------
\9\ Inflation Adjustment Act sec. 6.
---------------------------------------------------------------------------
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 2021 is 0.01182, or 1.182%; thus, to
calculate the new penalties, the Commission must multiply the most
recent civil monetary penalties in force by 1.01182.\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), and 30104(a)
(requiring political committee treasurers 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.
----------------------------------------------------------------------------------------------------------------
Most recent New civil
Section civil penalty COLA penalty
----------------------------------------------------------------------------------------------------------------
11 CFR 111.24(a)(1)............................................. $20,288 1.01182 $20,528
11 CFR 111.24(a)(2)(i).......................................... 43,280 1.01182 43,792
11 CFR 111.24(a)(2)(ii)......................................... 70,973 1.01182 71,812
11 CFR 111.24(b)................................................ 6,069 1.01182 6,141
11 CFR 111.24(b)................................................ 15,173 1.01182 15,352
----------------------------------------------------------------------------------------------------------------
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 penalty schedules: The penalty schedule in 11 CFR
111.43(a) applies to reports that are not election sensitive, and the
penalty schedule in 11 CFR 111.43(b) applies to reports that are
election sensitive.\15\ Each penalty 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).
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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 procedure, 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:
[[Page 1739]]
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
------------------------------------------------------------------------
111.24(a)(1)............................ $20,288 $20,528
111.24(a)(2)(i)......................... 43,280 43,792
111.24(a)(2)(ii)........................ 70,973 71,812
111.24(b)............................... 6,069 6,141
111.24(b)............................... 15,173 15,352
------------------------------------------------------------------------
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)
------------------------------------------------------------------------
And the report was
If the level of activity in filed late, the Or the report was
the report was: civil money penalty not filed, the civil
is: money penalty is:
------------------------------------------------------------------------
$1-4,999.99 \1\............. [$36 + ($6 x Number $351 x [1 + (.25 x
of days late)] x [1 Number of previous
+ (.25 x Number of violations)].
previous
violations)].
$5,000-9,999.99............. [$70 + ($6 x Number $422 x [1 + (.25 x
of days late)] x [1 Number of previous
+ (.25 x Number of violations)]
previous
violations)].
$10,000-24,999.99........... [$151 + ($6 x Number $704 x [1 + (.25 x
of days late)] x [1 Number of previous
+ (.25 x Number of violations)].
previous
violations)].
$25,000-49,999.99........... [$298 + ($28 x $1267 x [1 + (.25 x
Number of days Number of previous
late)] x [1 + (.25 violations)].
x Number of
previous
violations)].
$50,000-74,999.99........... [$450 + ($113 x $4041 x [1 + (.25 x
Number of days Number of previous
late)] x [1 + (.25 violations)].
x Number of
previous
violations)].
$75,000-99,999.99........... [$598 + ($151 x $5237 x [1 + (.25 x
Number of days Number of previous
late)] x [1 + (.25 violations)].
x Number of
previous
violations)].
$100,000-149,999.99......... [$896 + ($187 x $6735 x [1 + (.25 x
Number of days Number of previous
late)] x [1 + (.25 violations)].
x Number of
previous
violations)].
$150,000-199,999.99......... [$1199 + ($224 x $8231 x [1 + (.25 x
Number of days Number of previous
late)] x [1 + (.25 violations)].
x Number of
previous
violations)].
$200,000-249,999.99......... [$1496 + ($261 x $9727 x [1 + (.25 x
Number of days Number of previous
late)] x [1 + (.25 violations)].
x Number of
previous
violations)].
$250,000-349,999.99......... [$2245 + ($298 x $11,972 x [1 + (.25
Number of days x Number of
late)] x [1 + (.25 previous
x Number of violations)].
previous
violations)].
$350,000-449,999.99......... [$2994 + ($298 x $13,468 x [1 + (.25
Number of days x Number of
late)] x [1 + (.25 previous
x Number of violations)].
previous
violations)].
$450,000-549,999.99......... [$3741 + ($298 x $14,216 x [1 + (.25
Number of days x Number of
late)] x [1 + (.25 previous
x Number of violations)].
previous
violations)].
$550,000-649,999.99......... [$4489 + ($298 x $14,966 x [1 + (.25
Number of days x Number of
late)] x [1 + (.25 previous
x Number of violations)].
previous
violations)].
$650,000-749,999.99......... [$5237 + ($298 x $15,713 x [1 + (.25
Number of days x Number of
late)] x [1 + (.25 previous
x Number of violations)].
previous
violations)].
$750,000-849,999.99......... [$5986 + ($298 x $16,461 x [1 + (.25
Number of days x Number of
late)] x [1 + (.25 previous
x Number of violations)].
previous
violations)].
$850,000-949,999.99......... [$6735 + ($298 x $17,209 x [1 + (.25
Number of days x Number of
late)] x [1 + (.25 previous
x Number of violations)]
previous
violations)].
$950,000 or over............ [$7482 + ($298 x $17,958 x [1 + (.25
Number of days x Number of
late)] x [1 + (.25 previous
x Number of violations)].
previous
violations)].
------------------------------------------------------------------------
\1\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 2 to Paragraph (b)
------------------------------------------------------------------------
And the report was
If the level of activity in filed late, the Or the report was
the report was: civil money penalty not filed, the civil
is: money penalty is:
------------------------------------------------------------------------
$1-$4,999.99 \1\............ [$70 + ($13 x Number $704 x [1 + (.25 x
of days late)] x [1 Number of previous
+ (.25 x Number of violations)].
previous
violations)].
[[Page 1740]]
$5,000-$9,999.99............ [$141 + ($13 x $844 x [1 + (.25 x
Number of days Number of previous
late)] x [1 + (.25 violations)].
x Number of
previous
violations)].
$10,000-24,999.99........... [$211 + ($13 x $1267 x [1 + (.25 x
Number of days Number of previous
late)] x [1 + (.25 violations)].
x Number of
previous
violations)].
$25,000-49,999.99........... [$450 + ($36 x $1970 x [1 + (.25 x
Number of days Number of previous
late)] x [1 + (.25 violations)].
x Number of
previous
violations)].
$50,000-74,999.99........... [$674 + ($113 x $4489 x [1 + (.25 x
Number of days Number of previous
late)] x [1 + (.25 violations)].
x Number of
previous
violations)].
$75,000-99,999.99........... [$896 + ($151 x $5986 x [1 + (.25 x
Number of days Number of previous
late)] x [1 + (.25 violations)].
x Number of
previous
violations)].
$100,000-149,999.99......... [$1347 + ($187 x $7482 x [1 + (.25 x
Number of days Number of previous
late)] x [1 + (.25 violations)].
x Number of
previous
violations)].
$150,000-199,999.99......... [$1796 + ($224 x $8978 x [1 + (.25 x
Number of days Number of previous
late)] x [1 + (.25 violations)].
x Number of
previous
violations)].
$200,000-249,999.99......... [$2245 + ($261 x $11,224 x [1 + (.25
Number of days x Number of
late)] x [1 + (.25 previous
x Number of violations)].
previous
violations)].
$250,000-349,999.99......... [$3367 + ($298 x $13,468 x [1 + (.25
Number of days x Number of
late)] x [1 + (.25 previous
x Number of violations)].
previous
violations)].
$350,000-449,999.99......... [$4489 + ($298 x $14,966 x [1 + (.25
Number of days x Number of
late)] x [1 + (.25 previous
x Number of violations)].
previous
violations)].
$450,000-549,999.99......... [$5612 + ($298 x $16,461 x [1 + (.25
Number of days x Number of
late)] x [1 + (.25 previous
x Number of violations)].
previous
violations)].
$550,000-649,999.99......... [$6735 + ($298 x $17,958 x [1 + (.25
Number of days x Number of
late)] x [1 + (.25 previous
x Number of violations)].
previous
violations)].
$650,000-749,999.99......... [$7857 + ($298 x $19,455 x [1 + (.25
Number of days x Number of
late)] x [1 + (.25 previous
x Number of violations)].
previous
violations)].
$750,000-849,999.99......... [$8978 + ($298 x $20,951 x [1 + (.25
Number of days x Number of
late)] x [1 + (.25 previous
x Number of violations)].
previous
violations)].
$850,000-949,999.99......... [$10,101 + ($298 x $22,446 x [1 + (.25
Number of days x Number of
late)] x [1 + (.25 previous
x Number of violations)].
previous
violations)].
$950,000 or over............ [$11,224 + ($298 x $23,944 x [1 + (.25
Number of days x Number of
late)] x [1 + (.25 previous
x Number of violations)].
previous
violations)].
------------------------------------------------------------------------
\1\ 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 $8,231.
* * * * *
Sec. 111.44 [Amended]
0
4. Amend Sec. 111.44(a)(1) by removing ``$149'' and adding in its
place ``$151''.
Dated: December 30, 2020.
On behalf of the Commission.
Ellen L. Weintraub,
Commissioner, Federal Election Commission.
[FR Doc. 2020-29184 Filed 1-8-21; 8:45 am]
BILLING CODE 6715-01-P
