Civil Monetary Penalties Annual Inflation Adjustments, 697-700 [2024-00028]
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697
Rules and Regulations
Federal Register
Vol. 89, No. 4
Friday, January 5, 2024
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.
FEDERAL ELECTION COMMISSION
11 CFR Part 111
[NOTICE 2023–21]
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: This final rule is effective
January 5, 2024.
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
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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.
31001(s)(1), 110 Stat. 1321, 1321–373; Federal
Reports Elimination Act of 1998, Public Law 105–
362, sec. 1301, 112 Stat. 3280.
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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
2024.6
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
2 Public
Law 114–74, sec. 701, 129 Stat. 584, 599.
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
Shalanda D. Young, Director, Office of Management
and Budget, to Heads of Executive Departments and
Agencies, M–24–07, Dec. 19, 2023, M-24-07Implementation-of-Penalty-Inflation-Adjustmentsfor-2024.pdf (whitehouse.gov) (‘‘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 (D.C. Cir. 1998) (finding APA ‘‘notice and
comment’’ requirement not applicable where
Congress clearly expressed intent to depart from
normal APA procedures).
3 Inflation
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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 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 2024 is
0.03241, or 3.241%; thus, to calculate
the new penalties, the Commission must
multiply the most recent civil monetary
penalties in force by 1.03241.14
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
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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Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Rules and Regulations
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
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
Most recent
civil penalty
Section
11
11
11
11
11
CFR
CFR
CFR
CFR
CFR
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.
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
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 11 CFR part 111 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:
■
Authority: 52 U.S.C. 30102(i), 30109,
30107(a), 30111(a)(8); 28 U.S.C. 2461 nt.
$23,494
50,120
82,188
7,028
17,570
§ 111.24
New civil
penalty
COLA
1.03241
1.03241
1.03241
1.03241
1.03241
24,255
51,744
84,852
7,256
18,139
[Amended]
2. Section 111.24 is amended as
shown the following table. For each
paragraph indicated in the left column,
remove the number indicated in the
middle column, and add in its place the
number indicated in the right column.
■
Paragraph
Remove
Add
(a)(1) .............................
(a)(2)(i) ..........................
(a)(2)(ii) .........................
(b) .................................
(b) .................................
$23,494
50,120
82,188
7,028
17,570
$24,255
51,744
84,852
7,256
18,139
3. Section 111.43 is amended by
revising paragraphs (a), (b), and (c) to
read as follows:
■
§ 111.43 What are the schedules of
penalties?
(a) The civil money penalty for all
reports that are filed late or not filed,
except election sensitive reports and
pre-election reports under 11 CFR 104.5,
shall be calculated in accordance with
the following schedule of penalties:
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 ................
[$42 + ($6 × Number of days late)] × [1 + (.25 × Number of previous
violations)].
[$83 + ($6 × Number of days late)] × [1 + (.25 × Number of previous
violations)].
[$178 + ($6 × Number of days late)] × [1 + (.25 × Number of previous
violations)].
[$353 + ($33 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$532 + ($133 × Number of days late)] × [1 + (.25 × Number of previous violations)].
$415 × [1 + (.25 × Number of previous violations)].
$499 × [1 + (.25 × Number of previous violations)].
$832 × [1 + (.25 × Number of previous violations)].
$1,497 × [1 + (.25 × Number of previous violations)].
$4,774 × [1 + (.25 × Number of previous violations)].
$5,000–9,999.99 ...........
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$10,000–24,999.99 .......
$25,000–49,999.99 .......
$50,000–74,999.99 .......
15 Election sensitive reports are certain reports
due shortly before an election. See 11 CFR
111.43(d)(1).
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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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699
TABLE 1 TO PARAGRAPH (a)—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:
$75,000–99,999.99 .......
[$706 + ($178 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$1,059 + ($221 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$1,417 + ($264 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$1,767 + ($308 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$2,653 + ($353 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$3,537 + ($353 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$4,421+ ($353 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$5,303 + ($353 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$6,188 + ($353 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$7,072 + ($353 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$7,958 + ($353 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$8,842 + ($353 × Number of days late)] × [1 + (.25 × Number of previous violations)].
$6,188 × [1 + (.25 × Number of previous violations)].
$7,958 × [1 + (.25 × Number of previous violations)].
$9,725 × [1 + (.25 × Number of previous violations)].
$11,493 × [1 + (.25 × Number of previous violations)].
$14,146 × [1 + (.25 × Number of previous violations)].
$15,914 × [1 + (.25 × Number of previous violations)].
$16,798 × [1 + (.25 × Number of previous violations)].
$17,683 × [1 + (.25 × Number of previous violations)].
$18,567 × [1 + (.25 × Number of previous violations)].
$19,450 × [1 + (.25 × Number of previous violations)].
$20,334 × [1 + (.25 × Number of previous violations)].
$21,218 × [1 + (.25 × Number of previous violations)].
$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
accordance with the following schedule
of penalties:
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 a ..............
[$83 + ($15 × Number of days late)] × [1 + (.25 × Number of previous
violations)].
[$167 + ($15 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$249 + ($15 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$532 + ($42 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$796 + ($133 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$1,059 + ($178 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$1,592 + ($221 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$2,123 + ($264 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$2,653 + ($308 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$3,978 + ($353 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$5,303 + ($353 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$6,631 + ($353 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$7,958 + ($353 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$9,283 + ($353 × Number of days late)] × [1 + (.25 × Number of previous violations)].
[$10,609 + ($353 × Number of days late)] × [1 + (.25 × Number of
previous violations)].
[$11,935 + ($353 × Number of days late)] × [1 + (.25 × Number of
previous violations)].
$832 × [1 + (.25 × Number of previous violations)].
$997 × [1 + (.25 × Number of previous violations)].
$1,497 × [1 + (.25 × Number of previous violations)].
$2,328 × [1 + (.25 × Number of previous violations)].
$5,303 × [1 + (.25 × Number of previous violations)].
$7,072 × [1 + (.25 × Number of previous violations)].
$8,842 × [1 + (.25 × Number of previous violations)].
$10,609 × [1 + (.25 × Number of previous violations)].
$13,261 × [1 + (.25 × Number of previous violations)].
$15,914 × [1 + (.25 × Number of previous violations)].
$17,683 × [1 + (.25 × Number of previous violations)].
$19,450 × [1 + (.25 × Number of previous violations)].
$21,218 × [1 + (.25 × Number of previous violations)].
$22,988 × [1 + (.25 × Number of previous violations)].
$24,756 × [1 + (.25 × Number of previous violations)].
$26,523 × [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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$550,000–649,999.99 ...
$650,000–749,999.99 ...
$750,000–849,999.99 ...
$850,000–949,999.99 ...
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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:
$950,000 or over ...........
[$13,261 + ($353 × Number of days late)] × [1 + (.25 × Number of
previous violations)].
$28,292 × [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 $9,725.
*
*
*
*
*
§ 111.44
[Amended]
4. Amend § 111.44 in paragraph (a)(1)
by removing ‘‘$172’’ and adding in its
place ‘‘$178’’.
■
Dated: December 29, 2023.
On behalf of the Commission.
Dara S. Lindenbaum,
Chair, Federal Election Commission.
[FR Doc. 2024–00028 Filed 1–4–24; 8:45 am]
BILLING CODE 6715–01–P
DEPARTMENT OF STATE
22 CFR Parts 35, 103, 127, and 138
[Public Notice: 12298]
RIN 1400–AF72
Department of State 2024 Civil
Monetary Penalties Inflationary
Adjustment
Department of State.
Final rule.
AGENCY:
ACTION:
This final rule is issued to
adjust the civil monetary penalties
(CMP) for regulatory provisions
maintained and enforced by the
Department of State. The revised CMP
adjusts the amount of civil monetary
penalties assessed by the Department of
State based on the December 2023
guidance from the Office of
Management and Budget and by recent
legislation. For penalties adjusted
according to the December 2023
guidance, the new amounts will apply
only to those penalties assessed on or
after the effective date of this rule,
regardless of the date on which the
underlying facts or violations occurred.
DATES: This final rule is effective on
January 5, 2024.
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SUMMARY:
1 81
FR 36771 (Jun. 8, 2016).
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FOR FURTHER INFORMATION CONTACT:
Alice Kottmyer, Attorney-Adviser,
Office of Management, kottmyeram@
state.gov. ATTN: Regulatory Change,
CMP Adjustments, (202) 647–2318.
SUPPLEMENTARY INFORMATION: The
Federal Civil Penalties Inflation
Adjustment Act of 1990, Public Law
101–410, as amended by the Debt
Collection Improvement Act of 1996,
Public Law 104–134, required the head
of each agency to adjust its CMPs for
inflation no later than October 23, 1996
and required agencies to make
adjustments at least once every four
years thereafter. The Federal Civil
Penalties Inflation Adjustment Act
Improvements Act of 2015, Section 701
of Public Law 114–74 (the 2015 Act)
further amended the 1990 Act by
requiring agencies to adjust CMPs, if
necessary, pursuant to a ‘‘catch-up’’
adjustment methodology prescribed by
the 2015 Act, which mandated that the
catch-up adjustment take effect no later
than August 1, 2016. Additionally, the
2015 Act required agencies to make
annual adjustments to their respective
CMPs in accordance with guidance
issued by the Office of Management and
Budget (OMB).
Based on these statutes, the
Department of State (the Department)
published a final rule in June 2016 1 to
implement the ‘‘catch-up’’ provisions,
followed by annual updates in January
of each year. The most recent update
was in January 2023.2
On December 19, 2023, OMB notified
agencies that the annual cost-of-living
adjustment multiplier for fiscal year
(FY) 2024, based on the Consumer Price
Index, is 1.03241. Additional
information may be found in OMB
Memorandum M–24–07. This final rule
amends Department CMPs for fiscal year
2024.
Overview of the Areas Affected by This
Rule
See the table for specific changes.
Within the Department of State (title 22,
2 88
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Code of Federal Regulations), this rule
affects four areas:
(1) Part 35, which implements the
Program Fraud Civil Remedies Act of
1986 (PFCRA), codified at 31 U.S.C.
3801–3812. The PFCRA, enacted in
1986, authorizes agencies, with
approval from the Department of Justice,
to pursue individuals or firms for false
claims;
(2) Part 103, which implements the
Chemical Weapons Convention
Implementation Act of 1998 (CWC Act)
(22 U.S.C. 6761). The CWC Act
provided domestic implementation of
the Convention on the Prohibition of the
Development, Production, Stockpiling,
and Use of Chemical Weapons and on
Their Destruction. The penalty
provisions of the CWC Act are codified
at 22 U.S.C. 6761(a);
(3) Part 127, which implements the
penalty provisions of sections 38(e),
39A(c), and 40(k) of the Arms Export
Control Act (AECA) (22 U.S.C. 2778(e),
2779a(c), and 2780(k)). The Assistant
Secretary of State for Political-Military
Affairs is responsible for the imposition
of CMPs under the International Traffic
in Arms Regulations (ITAR), which is
administered by the Directorate of
Defense Trade Controls (DDTC); and
(4) Part 138, which implements
section 319 of Public Law 101–121,
codified at 31 U.S.C. 1352, provides
penalties for recipients of Federal
contracts, grants, and loans who use
appropriated funds to lobby the
executive or legislative branches of the
Federal Government in connection with
a specific contract, grant, or loan. Any
person who violates that prohibition is
subject to a civil penalty. The statute
also requires each person who requests
or receives a Federal contract, grant,
cooperative agreement, loan, or a
Federal commitment to insure or
guarantee a loan, to disclose any
lobbying; there is a penalty for failure to
disclose.
FR 1505 (Jan. 11, 2023).
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]]>Agencies
[Federal Register Volume 89, Number 4 (Friday, January 5, 2024)]
[Rules and Regulations]
[Pages 697-700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00028]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
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.
========================================================================
Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Rules
and Regulations
[[Page 697]]
FEDERAL ELECTION COMMISSION
11 CFR Part 111
[NOTICE 2023-21]
Civil Monetary Penalties Annual Inflation Adjustments
AGENCY: Federal Election Commission.
ACTION: Final rules.
-----------------------------------------------------------------------
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: This final rule is effective January 5, 2024.
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 2024.\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
Shalanda D. Young, Director, Office of Management and Budget, to
Heads of Executive Departments and Agencies, M-24-07, Dec. 19, 2023,
M-24-07-Implementation-of-Penalty-Inflation-Adjustments-for-2024.pdf
(whitehouse.gov) (``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
(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
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 2024 is 0.03241, or 3.241%; thus, to
calculate the new penalties, the Commission must multiply the most
recent civil monetary penalties in force by 1.03241.\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
[[Page 698]]
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 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)............................................. $23,494 1.03241 24,255
11 CFR 111.24(a)(2)(i).......................................... 50,120 1.03241 51,744
11 CFR 111.24(a)(2)(ii)......................................... 82,188 1.03241 84,852
11 CFR 111.24(b)................................................ 7,028 1.03241 7,256
11 CFR 111.24(b)................................................ 17,570 1.03241 18,139
----------------------------------------------------------------------------------------------------------------
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).
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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).
---------------------------------------------------------------------------
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 11 CFR part 111 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 nt.
Sec. 111.24 [Amended]
0
2. Section 111.24 is amended as shown the following table. For each
paragraph indicated in the left column, remove the number indicated in
the middle column, and add in its place the number indicated in the
right column.
------------------------------------------------------------------------
Paragraph Remove Add
------------------------------------------------------------------------
(a)(1).............................................. $23,494 $24,255
(a)(2)(i)........................................... 50,120 51,744
(a)(2)(ii).......................................... 82,188 84,852
(b)................................................. 7,028 7,256
(b)................................................. 17,570 18,139
------------------------------------------------------------------------
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 civil Or the report was not filed,
was: money penalty is: the civil money penalty is:
----------------------------------------------------------------------------------------------------------------
$1-4,999.99 \a\....................... [$42 + ($6 x Number of days late)] x [1 $415 x [1 + (.25 x Number of
+ (.25 x Number of previous previous violations)].
violations)].
$5,000-9,999.99....................... [$83 + ($6 x Number of days late)] x [1 $499 x [1 + (.25 x Number of
+ (.25 x Number of previous previous violations)].
violations)].
$10,000-24,999.99..................... [$178 + ($6 x Number of days late)] x [1 $832 x [1 + (.25 x Number of
+ (.25 x Number of previous previous violations)].
violations)].
$25,000-49,999.99..................... [$353 + ($33 x Number of days late)] x $1,497 x [1 + (.25 x Number of
[1 + (.25 x Number of previous previous violations)].
violations)].
$50,000-74,999.99..................... [$532 + ($133 x Number of days late)] x $4,774 x [1 + (.25 x Number of
[1 + (.25 x Number of previous previous violations)].
violations)].
[[Page 699]]
$75,000-99,999.99..................... [$706 + ($178 x Number of days late)] x $6,188 x [1 + (.25 x Number of
[1 + (.25 x Number of previous previous violations)].
violations)].
$100,000-149,999.99................... [$1,059 + ($221 x Number of days late)] $7,958 x [1 + (.25 x Number of
x [1 + (.25 x Number of previous previous violations)].
violations)].
$150,000-199,999.99................... [$1,417 + ($264 x Number of days late)] $9,725 x [1 + (.25 x Number of
x [1 + (.25 x Number of previous previous violations)].
violations)].
$200,000-249,999.99................... [$1,767 + ($308 x Number of days late)] $11,493 x [1 + (.25 x Number
x [1 + (.25 x Number of previous of previous violations)].
violations)].
$250,000-349,999.99................... [$2,653 + ($353 x Number of days late)] $14,146 x [1 + (.25 x Number
x [1 + (.25 x Number of previous of previous violations)].
violations)].
$350,000-449,999.99................... [$3,537 + ($353 x Number of days late)] $15,914 x [1 + (.25 x Number
x [1 + (.25 x Number of previous of previous violations)].
violations)].
$450,000-549,999.99................... [$4,421+ ($353 x Number of days late)] x $16,798 x [1 + (.25 x Number
[1 + (.25 x Number of previous of previous violations)].
violations)].
$550,000-649,999.99................... [$5,303 + ($353 x Number of days late)] $17,683 x [1 + (.25 x Number
x [1 + (.25 x Number of previous of previous violations)].
violations)].
$650,000-749,999.99................... [$6,188 + ($353 x Number of days late)] $18,567 x [1 + (.25 x Number
x [1 + (.25 x Number of previous of previous violations)].
violations)].
$750,000-849,999.99................... [$7,072 + ($353 x Number of days late)] $19,450 x [1 + (.25 x Number
x [1 + (.25 x Number of previous of previous violations)].
violations)].
$850,000-949,999.99................... [$7,958 + ($353 x Number of days late)] $20,334 x [1 + (.25 x Number
x [1 + (.25 x Number of previous of previous violations)].
violations)].
$950,000 or over...................... [$8,842 + ($353 x Number of days late)] $21,218 x [1 + (.25 x Number
x [1 + (.25 x Number of previous of previous violations)].
violations)].
----------------------------------------------------------------------------------------------------------------
\a\ The civil money penalty for a respondent who does not have any previous violations will not exceed the level
of activity in the report.
(b) The civil money penalty for election sensitive reports that are
filed late or not filed shall be calculated in accordance with the
following schedule of penalties:
Table 2 to Paragraph (b)
----------------------------------------------------------------------------------------------------------------
If the level of activity in the report And the report was filed late, the civil Or the report was not filed,
was: money penalty is: the civil money penalty is:
----------------------------------------------------------------------------------------------------------------
$1-$4,999.99 \a\...................... [$83 + ($15 x Number of days late)] x [1 $832 x [1 + (.25 x Number of
+ (.25 x Number of previous previous violations)].
violations)].
$5,000-$9,999.99...................... [$167 + ($15 x Number of days late)] x $997 x [1 + (.25 x Number of
[1 + (.25 x Number of previous previous violations)].
violations)].
$10,000-24,999.99..................... [$249 + ($15 x Number of days late)] x $1,497 x [1 + (.25 x Number of
[1 + (.25 x Number of previous previous violations)].
violations)].
$25,000-49,999.99..................... [$532 + ($42 x Number of days late)] x $2,328 x [1 + (.25 x Number of
[1 + (.25 x Number of previous previous violations)].
violations)].
$50,000-74,999.99..................... [$796 + ($133 x Number of days late)] x $5,303 x [1 + (.25 x Number of
[1 + (.25 x Number of previous previous violations)].
violations)].
$75,000-99,999.99..................... [$1,059 + ($178 x Number of days late)] $7,072 x [1 + (.25 x Number of
x [1 + (.25 x Number of previous previous violations)].
violations)].
$100,000-149,999.99................... [$1,592 + ($221 x Number of days late)] $8,842 x [1 + (.25 x Number of
x [1 + (.25 x Number of previous previous violations)].
violations)].
$150,000-199,999.99................... [$2,123 + ($264 x Number of days late)] $10,609 x [1 + (.25 x Number
x [1 + (.25 x Number of previous of previous violations)].
violations)].
$200,000-249,999.99................... [$2,653 + ($308 x Number of days late)] $13,261 x [1 + (.25 x Number
x [1 + (.25 x Number of previous of previous violations)].
violations)].
$250,000-349,999.99................... [$3,978 + ($353 x Number of days late)] $15,914 x [1 + (.25 x Number
x [1 + (.25 x Number of previous of previous violations)].
violations)].
$350,000-449,999.99................... [$5,303 + ($353 x Number of days late)] $17,683 x [1 + (.25 x Number
x [1 + (.25 x Number of previous of previous violations)].
violations)].
$450,000-549,999.99................... [$6,631 + ($353 x Number of days late)] $19,450 x [1 + (.25 x Number
x [1 + (.25 x Number of previous of previous violations)].
violations)].
$550,000-649,999.99................... [$7,958 + ($353 x Number of days late)] $21,218 x [1 + (.25 x Number
x [1 + (.25 x Number of previous of previous violations)].
violations)].
$650,000-749,999.99................... [$9,283 + ($353 x Number of days late)] $22,988 x [1 + (.25 x Number
x [1 + (.25 x Number of previous of previous violations)].
violations)].
$750,000-849,999.99................... [$10,609 + ($353 x Number of days late)] $24,756 x [1 + (.25 x Number
x [1 + (.25 x Number of previous of previous violations)].
violations)].
$850,000-949,999.99................... [$11,935 + ($353 x Number of days late)] $26,523 x [1 + (.25 x Number
x [1 + (.25 x Number of previous of previous violations)].
violations)].
[[Page 700]]
$950,000 or over...................... [$13,261 + ($353 x Number of days late)] $28,292 x [1 + (.25 x Number
x [1 + (.25 x Number of previous of previous violations)].
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 $9,725.
* * * * *
Sec. 111.44 [Amended]
0
4. Amend Sec. 111.44 in paragraph (a)(1) by removing ``$172'' and
adding in its place ``$178''.
Dated: December 29, 2023.
On behalf of the Commission.
Dara S. Lindenbaum,
Chair, Federal Election Commission.
[FR Doc. 2024-00028 Filed 1-4-24; 8:45 am]
BILLING CODE 6715-01-P
