2016-14877. Civil Monetary Penalties Inflation Adjustments

AGENCY:

Federal Election Commission.

ACTION:

Interim final rules.

SUMMARY:

As required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, the Federal Election Commission is adopting interim final rules to adjust 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 interim final rules are effective on August 1, 2016. Comments must be submitted on or before July 25, 2016.

ADDRESSES:

All comments must be in writing. Commenters are encouraged to submit comments electronically via the Commission's Web site at http://www.fec.gov/​fosers,, reference REG 2016-02, or by email to [e-mail]. Alternatively, commenters may submit comments in paper form, addressed to the Federal Election Commission, Attn.: Neven F. Stipanovic, Acting Assistant General Counsel, 999 E Street NW., Washington, DC 20463.

Each commenter must provide, at a minimum, his or her first name, last name, city, state, and zip code. All properly submitted comments, including attachments, will become part of the public record, and the Commission will make comments available for public viewing on the Commission's Web site and in the Commission's Public Records Office. Accordingly, commenters should not provide in their comments any information that they do not wish to make public, such as a home street address, personal email address, date of birth, phone number, social security number, or driver's license number, or any information that is restricted from disclosure, such as trade secrets or commercial or financial information that is privileged or confidential.

FOR FURTHER INFORMATION CONTACT:

Mr. Neven F. Stipanovic, Acting Assistant General Counsel, or Ms. Esther D. Gyory, Attorney, Office of General Counsel, 999 E Street NW., Washington, DC 20463, [phone] or [phone].

SUPPLEMENTARY INFORMATION:

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the “2015 Act”) ^[1] amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (the “Inflation Adjustment Act”) ^[2] to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. Prior to the 2015 Act, the Inflation Adjustment Act required federal agencies, including the Commission, to adjust for inflation the civil monetary penalties within their jurisdiction at least once every four years according to detailed formulas. The Commission last adjusted its civil monetary penalties for inflation in 2013. Civil Monetary Penalties Inflation Adjustments, 78 FR 44419 (July 24, 2013). As amended by the 2015 Act, the Inflation Adjustment Act now requires federal agencies to make a one-time “catch-up” adjustment to civil monetary penalties, which must take effect no later than August 1, 2016, and to adjust civil monetary penalties annually thereafter using newly prescribed formulas.^[3]

The Inflation Adjustment Act defines a civil monetary penalty as “any penalty, fine, or other sanction” that (1) “is for a specific 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.^[4] Under the Federal Election Campaign Act, 52 U.S.C. 30101-46 (“FECA”), the Commission may assess and enforce 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. As required by the Inflation Adjustment Act, and pursuant to guidance issued by the Office of Management and Budget,^[5] the Commission is now making a one-time catch-up adjustment to the civil monetary penalties within its jurisdiction, according to the prescribed formulas. The Commission will implement annual inflation adjustments beginning in January 2017.

Administrative Procedure Act

As required by the 2015 Act, the Commission is issuing these rules as interim final rules. The interim final rules will take effect on August 1, 2016, the date by which Congress mandated that agencies make their catch-up adjustment effective.

The Administrative Procedure Act's (“APA's”) notice-and-comment requirement does not apply here because Congress specifically directed agencies to make adjustments to civil monetary penalties through an interim final rule.^[6] Nonetheless, the public may comment on these interim final rules, and the Commission may address any comments received in a later rulemaking document. Furthermore, because the inflation adjustments made through the interim 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 interim 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.^[7]

Explanation and Justification

Under the Inflation Adjustment Act, the Commission now must adjust each civil monetary penalty for inflation by applying a cost-of-living-adjustment (“COLA”) ratio. The COLA ratio is the percentage that the consumer price index (“CPI”) ^[8] for October 2015 exceeds the CPI for October of the “baseline year,” which is the calendar year when the civil monetary penalty was first established, or when it was most recently adjusted under a provision of law other than the Inflation Adjustment Act.^[9] To calculate the adjusted penalty, the Commission must multiply the civil monetary penalty amount in the baseline year by the COLA ratio.^[10] The civil monetary penalty, however, may not be increased by more than 150% of the civil monetary penalty amount in effect on November 2, 2015.^[11]

The Commission assesses two types of civil monetary penalties that now must be adjusted for inflation. First are those penalties that are either negotiated by the Commission or imposed by a court for violations of FECA, the Presidential Election Campaign Fund Act, and 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 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 established 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 catch-up adjustment for each of the five civil monetary penalties in 11 CFR 111.24, the Commission must first identify the later of: The year the civil monetary penalty was first established, or the year it was last adjusted by law other than under the Inflation Adjustment Act. The Commission then must apply the COLA ratio to the amount of the civil monetary penalty in effect in the baseline year.^[12]

The civil monetary penalties at 11 CFR 111.24(a)(1) and 11 CFR 24(a)(2)(i) were established by statute in 1976.^[13] The civil monetary penalty at 11 CFR 111.24(a)(2)(ii) was established in 2002.^[14] The civil monetary penalties at 11 CFR 111.24(b) were established in 1980.^[15] None of these penalties has been adjusted since its establishment, other than for inflation. Accordingly, as described above, the Commission determines the adjusted penalty amount by multiplying the amount of the penalty in the baseline year by the COLA ratio for that year and rounding that figure to the nearest dollar. But the Commission may not increase the civil monetary penalty amount by more than 150% of the amount that was in effect for that civil monetary penalty on November 2, 2015. Thus, for example, in section 111.24(a)(1), the 2015 civil monetary penalty amount was $7,500. The maximum the new civil monetary penalty can increase by is 150% of that amount, which would be an increase of $11,250, for a maximum penalty of $18,750. Because applying the COLA ratio to the originally established penalty amount would lead to an adjusted penalty of approximately $20,500, which exceeds the 150% cap amount, the new civil monetary penalty for section 111.24(a)(1) is $18,750. The actual adjustment to each civil monetary penalty is shown in the chart below.

Section	Baseline year	Civil penalty in year est.	COLA Ratio 16	Adjusted penalty (rounded)	2015 Penalty amt.	150% Cap (rounded)	New civil penalty
11 CFR 111.24(a)(1)	1976	$5,000	4.10774	$20,539	$7,500	$18,750	$18,750
11 CFR 111.24(a)(2)(i)	1976	10,000	4.10774	41,077	16,000	40,000	40,000
11 CFR 111.24(a)(2)(ii)	2002	50,000	1.31185	65,593	65,000	162,500	65,593
11 CFR 111.24(b)	1980	2,000	2.80469	5,609	3,200	8,000	5,609
11 CFR 111.24(b)	1980	5,000	2.80469	14,023	7,500	18,750	14,023

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.^[17] 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 its lateness (where applicable).^[18] 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).

The Commission established the penalty schedules in 11 CFR 111.43(a) and (b) in 2000, when the Commission promulgated its Administrative Fines program. Administrative Fines, 65 FR 31787, 31796-97 (May 19, 2000) (“2000 Administrative Fines”). In 2003, the Commission adjusted these schedules to reduce certain penalties for political committees with low levels of financial activity. Administrative Fines, 68 FR 12572, 12573 (Mar. 17, 2003) (“2003 Administrative Fines”) (establishing “new schedules that reduce civil money penalties for . . . committees with less than $50,000 in activity”). Other than for inflation, these penalty schedules have not been adjusted since 2003.^[19] The civil monetary penalties in 11 CFR 111.43(c) and 111.44 were established in 2000 and, except for inflation, have not been adjusted since.^[20]

As described above, to determine the adjusted penalty amount, the Commission first multiplies the amount of the penalty in the baseline year by the COLA ratio for that year and rounds that figure to the nearest dollar. For certain penalties assessed at low levels of financial activity (up to $49,999.99) the baseline year is 2003. 2003 Administrative Fines, 68 FR at 12573-75. For all other penalties, the baseline year is 2000. 2000 Administrative Fines, 65 FR at 31792-98. The adjusted civil monetary penalty for each level of activity is the baseline year penalty amount multiplied by the COLA ratio that is provided in the OMB Memorandum. None of these adjusted civil monetary penalties exceeds the 150% cap. The new civil monetary penalties are shown in the schedules in the revised 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))

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.; 31 U.S.C. 3701, 3711, 3716-3719, and 3820A, as amended; 31 CFR parts 285 and 900-904.

§ 111.24

[Amended]

2. Section 111.24 is amended as follows:

In the table below, for each section 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.

Section	Remove	Add
111.24(a)(1)	$7,500	$18,750
111.24(a)(2)(i)	16,000	40,000
111.24(a)(2)(ii)	65,000	65,593
111.24(b)	3,200	5,609
111.24(b)	7,500	14,023

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:

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	[$32 + ($6 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$321 × [1 + (.25 × Number of previous violations)].
$5,000-9,999.99	[$64 + ($6 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$386 × [1 + (.25 × Number of previous violations)].
$10,000-24,999.99	[$137 + ($6 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$643 × [1 + (.25 × Number of previous violations)].
$25,000-49,999.99	[$273 + ($26 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$1,157 × [1 + (.25 × Number of previous violations)].
$50,000-74,999.99	[$410 + ($103 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$3,691 × [1 + (.25 × Number of previous violations)].
$75,000-99,999.99	[$547 + ($137 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$4,784 × [1 + (.25 × Number of previous violations)].
$100,000-149,999.99	[$820 + ($171 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$6,151 × [1 + (.25 × Number of previous violations)].
$150,000-199,999.99	[$1,094 + ($205 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$7,518 × [1 + (.25 × Number of previous violations)].
$200,000-249,999.99	[$1,367 + ($239 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$8,885 × [1 + (.25 × Number of previous violations)].
$250,000-349,999.99	[$2,050 + ($273 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$10,935 × [1 + (.25 × Number of previous violations)].
$350,000-449,999.99	[$2,734 + ($273 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$12,302 × [1 + (.25 × Number of previous violations)].
$450,000-549,999.99	[$3,417 + ($273 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$12,985 × [1 + (.25 × Number of previous violations)].
$550,000-649,999.99	[$4,101 + ($273 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$13,669 × [1 + (.25 × Number of previous violations)].
$650,000-749,999.99	[$4,784 + ($273 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$14,352 × [1 + (.25 × Number of previous violations)].
$750,000-849,999.99	[$5,468 + ($273 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$15,036 × [1 + (.25 × Number of previous violations)].
$850,000-949,999.99	[$6,151 + ($273 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$15,719 × [1 + (.25 × Number of previous violations)].
$950,000 or over	[$6,834 + ($273 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$16,403 × [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.

(b) The civil money penalty for election sensitive reports that are filed late or not filed shall be calculated in accordance with the following schedule of penalties:

If the level of activity in the report was:	And the report was filed late, the civil money penalty is:	Or the report was not filed, the civil money penalty is:
$1-$4,999.99 a	[$64 + ($13 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$643 × [1 + (.25 × Number of previous violations)].
$5,000-$9,999.99	[$129 + ($13 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$771 × [1 + (.25 × Number of previous violations)].
$10,000-24,999.99	[$193 + ($13 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$1,157 × [1 + (.25 × Number of previous violations)].
$25,000-49,999.99	[$410 + ($32 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$1,800 × [1 + (.25 × Number of previous violations)].
$50,000-74,999.99	[$615 + ($103 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$4,101 × [1 + (.25 × Number of previous violations)].
$75,000-99,999.99	[$820 + ($137 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$5,468 × [1 + (.25 × Number of previous violations)].
$100,000-149,999.99	[$1,230 + ($171 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$6,834 × [1 + (.25 × Number of previous violations)].
$150,000-199,999.99	[$1,640 + ($205 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$8,201 × [1 + (.25 × Number of previous violations)].
$200,000-249,999.99	[$2,050 + ($239 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$10,252 × [1 + (.25 × Number of previous violations)].
$250,000-349,999.99	[$3,076 + ($273 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$12,302 × [1 + (.25 × Number of previous violations)].
$350,000-449,999.99	[$4,101+ ($273 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$13,669 × [1 + (.25 × Number of previous violations)].
$450,000-549,999.99	[$5,126 + ($273 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$15,036 × [1 + (.25 × Number of previous violations)].
$550,000-649,999.99	[$6,151 + ($273 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$16,403 × [1 + (.25 × Number of previous violations)].
$650,000-749,999.99	[$7,176 + ($273 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$17,770 × [1 + (.25 × Number of previous violations)].
$750,000-849,999.99	[$8,201 + ($273 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$19,136 × [1 + (.25 × Number of previous violations)].
$850,000-949,999.99	[$9,227 + ($273 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$20,503 × [1 + (.25 × Number of previous violations)].
$950,000 or over	[$10,252 + ($273 × Number of days late)] × [1 + (.25 × Number of previous violations)]	$21,870 × [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 $7,518.

* * * * *

§ 111.44

[Amended]

4. In § 111.44, paragraph (a)(1) is amended by removing “$110” and adding in its place “$137”.

Dated: June 16, 2016.

On behalf of the Commission.

Matthew S. Petersen,

Chairman, Federal Election Commission.

Footnotes

1.  Public Law 114-74, sec. 701, 129 Stat. 584, 599.

2.  Public Law 101-410, 104 Stat. 890 (codified at 28 U.S.C. 2461 note), as amended by Debt Collection Improvement Act of 1996, Public Law 104-134, sec. 31001(s)(1), 110 Stat. 1321, 1373; Federal Reports Elimination Act of 1998, Public Law 105-362, sec. 1301, 112 Stat. 3280.

3.  Inflation Adjustment Act secs. 4(b), 5.

4.  Inflation Adjustment Act sec. 3(2).

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 Shaun Donovan, Director, Office of Management and Budget, to Heads of Executive Departments and Agencies, M-16-06 at 3 (Feb. 24, 2016) (“OMB Memorandum”), https://www.whitehouse.gov/​sites/​default/​files/​omb/​memoranda/​2016/​m-16-06.pdf.

6.  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); see also Inflation Adjustment Act sec. 4(a), (b)(1) (requiring federal agencies to adjust civil monetary penalties “through an interim final rulemaking”).

7.  Inflation Adjustment Act sec. 6.

8.  The Inflation Adjustment Act uses the CPI “for all-urban consumers published by the Department of Labor.” Id. sec. 3.

9.  Id. sec. 5(b)(2)(A).

10.  Id. sec. 5(b)(2)(B).

11.  Id. sec. 5(b)(2)(C).

12.  The COLA ratios are provided in the OMB Memorandum, M-16-06 at 6.

13.  Public Law 94-283, sec. 109, 90 Stat. 475 (codified at 52 U.S.C. 30109(a)(5)(A)-(B)); see also Civil Monetary Penalties Inflation Adjustments, 78 FR 44419 (July 24, 2013) (“2013 Adjustment); Civil Monetary Penalties Inflation Adjustments, 74 FR 31345, 31346 (July 1, 2009), amended by Civil Monetary Penalties Inflation Adjustments, 74 FR 37161 (July 28, 2009) (collectively, “2009 Adjustment”); Inflation Adjustments for Civil Monetary Penalties, 70 FR 34633, 34634 (June 15, 2005) (“2005 Adjustment”); Adjustments to Civil Monetary Penalty Amounts, 62 FR 11316 (Mar. 12, 1997) (“1997 Adjustment”).

14.  Public Law 107-155, sec. 312(a), 116 Stat. 81 (codified at 52 U.S.C. 30109(a)(5)(B)); see also 2013 Adjustment, 78 FR at 44420; 2009 Adjustment, 74 FR at 31346, 74 FR 37161; 2005 Adjustment, 70 FR at 34634.

15.  Public Law 96-187, sec. 108, 93 Stat. 1339 (codified at 52 U.S.C. 30109(a)(12)); see also 2013 Adjustment, 78 FR at 44420; 2009 Adjustment, 74 FR at 31346, 74 FR 37161; 2005 Adjustment, 70 FR at 34635; 1997 Adjustment, 62 FR at 11316-17.

16.  OMB Memorandum, Table A.

17.  Election sensitive reports are certain reports due shortly before an election. See 11 CFR 111.43(d)(1).

18.  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).

19.  See 2013 Adjustment, 78 FR at 44420; 2009 Adjustment, 74 FR at 31346-47; 2005 Adjustment, 70 FR at 34635.

20.  2000 Administrative Fines, 65 FR at 31797-98; see also 2013 Adjustment, 78 FR at 44420; 2009 Adjustment, 74 FR at 31347; 2005 Adjustment, 70 FR at 34635.