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Federal Register / Vol. 71, No.

236 / Friday, December 8, 2006 / Proposed Rules 71093

V. Parallel Proceedings refers, reports, or otherwise discusses presented in this rulemaking. Further
The Commission recognizes that information with other law enforcement information is provided in the
persons self-reporting to the agencies. Although the Commission supplementary information that follows.
Commission may face special concerns cannot disclose information regarding DATES: Comments must be received on
in connection with parallel criminal an investigation to the public, it can and or before January 8, 2007.
investigations, State administrative does share information on a confidential ADDRESSES: All comments must be in
proceedings, and/or civil litigation. The basis with other law enforcement writing, must be addressed to Mr. J.
Commission expects that persons who agencies. Duane Pugh Jr., Acting Assistant
self-report to the Commission will VI. Conclusion General Counsel, and must be submitted
inform the Commission of any existing in either e-mail, facsimile, or paper copy
In light of the considerations form. Commenters are strongly
parallel proceedings. The Commission explained above, the Commission is
encourages persons who self-report to encouraged to submit comments by e-
considering issuing a policy statement mail to ensure timely receipt and
the Commission also to self-report to clarify how it exercises its discretion
related violations to any law consideration. E-mail comments must
in enforcement matters involving self- be sent to either afbestefforts@fec.gov or
enforcement agency with jurisdiction reported violations of the FECA. The
over the activity. This will assist the submitted through the Federal
Commission invites comments on any eRegulations Portal at http://
Commission, where appropriate and aspect of the proposed policy statement,
possible, in working with other Federal, www.regulations.gov. If e-mail
including: comments include an attachment, the
State, and local agencies to facilitate a (A) Whether and to what extent the
global and/or contemporaneous attachment must be in either Adobe
Commission should consider the
resolution of related violations by a self- Acrobat (.pdf) or Microsoft Word (.doc)
various factors described above, and/or
reporting person. The possibility of such format. Faxed comments must be sent to
other factors, in resolving self-reported
a resolution is enhanced when the self- (202) 219–3923, with paper copy follow-
violations of the FEC; and
reporting person expresses a willingness up. Paper comments and paper copy
(B) Whether and how to apply the
to engage other government agencies follow-up of faxed comments must be
new proposed Fast Track Resolution
that may have jurisdiction over the sent to the Federal Election
process in resolving self-reported
conduct and to cooperate with joint Commission, 999 E Street, NW.,
violations of the FECA.
discovery and disclosure of facts and Washington, DC 20463. All comments
Dated: December 1, 2006. must include the full name and postal
settlement positions with respect to the
Michael E. Toner, service address of the commenter or
different agencies.
In situations where contemporaneous Chairman, Federal Election Commission. they will not be considered. The
resolution of parallel matters is not [FR Doc. E6–20845 Filed 12–7–06; 8:45 am] Commission will post comments on its
feasible, the Commission will consider BILLING CODE 6715–01–P Web site after the comment period ends.
whether terms contained in a FOR FURTHER INFORMATION CONTACT: Mr.
conciliation agreement with the J. Duane Pugh Jr., Acting Assistant
Commission may affect potential FEDERAL ELECTION COMMISSION General Counsel, or Ms. Margaret G.
liability the same respondent Perl, Attorney, 999 E Street, NW.,
11 CFR Part 111 Washington, DC 20463, (202) 694–1650
realistically faces from another agency.
In appropriate cases, where there has [Notice 2006–22] or (800) 424–9530.
been self-reporting and full cooperation, SUPPLEMENTARY INFORMATION: Under the
the Commission may agree to enter into Best Efforts in Administrative Fines administrative fines program, the
conciliation without requiring Challenges Commission may assess a civil money
respondents to admit that their conduct AGENCY: Federal Election Commission. penalty for a violation of the reporting
was ‘‘knowing and willful,’’ even where ACTION: Notice of proposed rulemaking. requirements of 2 U.S.C. 434(a) (such as
there is evidence that may be viewed as not filing or filing late) without using
supporting this conclusion. (The civil SUMMARY: The Federal Election the traditional enforcement procedures.
penalty, however, may be based on Commission seeks public comment on 2 U.S.C. 437g(a)(4)(C). Congress
‘‘knowing and willful’’ conduct.) The proposed revisions to its regulations intended the Commission to process
Commission has followed this practice regarding the Commission’s these straightforward violations through
in several self-reported matters where administrative fines program. The a ‘‘simplified procedure’’ that would
the organizational respondents administrative fines program is a ease the enforcement burden on the
promptly self-reported and took streamlined process through which the Commission. H.R. Rep. No. 106–295 at
comprehensive and immediate Commission finds and penalizes 11 (1999). In the final rules establishing
corrective action that included the violations of 2 U.S.C. 434(a), which and governing the administrative fines
dismissal of all individual corporate requires committees registered with the program, the Commission created a
officers whose actions formed the basis Commission to file periodic reports. streamlined procedure that balances the
for the organization’s potential Current Commission regulations set respondent’s rights to notice and
‘‘knowing and willful’’ violation. forth several grounds upon which a opportunity to be heard with the
The Commission, which has the respondent may base a challenge to an Congressional intent that the
statutory authority to refer ‘‘knowing administrative fine. The proposed administrative fines program work in an
and willful’’ violations of the FECA to regulations replace the current expeditious manner to resolve these
the Department of Justice for potential ‘‘extraordinary circumstances’’ defense reporting violations without additional
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criminal prosecution, 2 U.S.C. with a ‘‘best efforts’’ defense. The administrative burden. Final Rule on
437g(a)(5)(C), and to report information proposed regulations would also Administrative Fines, 65 FR 31787–88
regarding violations of law not within provide for Commission statements of (May 19, 2000).
its jurisdiction to appropriate law reasons on administrative fines final The Federal Election Campaign Act
enforcement authorities, 2 U.S.C. determinations. The Commission has (‘‘FECA’’) provides that ‘‘[w]hen the
437d(a)(9), will not negotiate whether it made no final decision on the issues treasurer of a political committee shows

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71094 Federal Register / Vol. 71, No. 236 / Friday, December 8, 2006 / Proposed Rules

that best efforts have been used to regarding permissible grounds for instance, a paper filer that has ‘‘timely
obtain, maintain, and submit the challenging administrative fines. filed’’ a report under the definition in 11
information required by this Act for the CFR 100.19 would be considered to
I. 11 CFR 111.35—Grounds for
political committee, any report or any have timely filed for purposes of the
Challenging an Administrative Fines
records of such committee shall be administrative fines program. This
Reason To Believe Finding
considered in compliance with would be true even if the Commission
[FECA].’’ 2 U.S.C. 432(i).1 The current Under the administrative fines does not ultimately receive the filing,
administrative fines regulations regulations, if the Commission due, for instance, to errors by the
enumerate grounds upon which a determines that it has reason to believe overnight delivery service or in the
respondent may challenge a (‘‘RTB’’) that a committee has failed to handling of the mail. The Commission
Commission determination that an timely file a required report, it notifies seeks comment on this approach.
administrative fine should be imposed, the respondent of this finding and of the Should other types of factual errors be
but a best efforts defense is not proposed civil penalty. 11 CFR 111.32. allowed as grounds for challenge to the
explicitly listed among these grounds. The Commission makes RTB findings finding of a violation? Should the
In Lovely v. FEC, 307 F. Supp. 2d 294 based on an internal process that regulation include additional examples
(D. Mass. 2004), the court addressed a identifies late filers. The amount of the of qualifying factual errors?
political committee’s challenge to an penalty is determined using the
schedules at 11 CFR 111.43. Following B. 11 CFR 111.35(b)(1)(iii)—Replacing
administrative fine assessed by the the ‘‘Extraordinary Circumstances’’
Commission for the committee’s failure an RTB finding, a respondent has forty
days to challenge the alleged violation. Defense With a Best Efforts Defense
to timely file a report. The committee
argued that it had made best efforts to 11 CFR 111.35. Challenges are reviewed The proposed regulation replaces the
file the report and that this constituted by Commission staff and ultimately ‘‘extraordinary circumstances’’ defense
a valid and complete defense to the fine. decided by the Commission. 11 CFR currently at 11 CFR 111.35(b)(1)(iii)
The court concluded that the plain 111.36, 111.37. with a best efforts defense. The
The current regulations set forth three proposed regulation makes clear that a
language of the Act requires the
permissible grounds upon which to respondent may base a challenge to an
Commission to entertain a best efforts
challenge an administrative fines RTB administrative fine on a showing that
defense in the administrative fines
finding. Respondents are permitted to respondent made best efforts to timely
context, and that it was unclear from the
challenge administrative fines on the file the report in question. To show that
record in the Lovely case whether the
basis of ‘‘factual errors,’’ the improper it made best efforts to timely file, a
Commission had considered the best
calculation of a penalty, or respondent would be required to
efforts defense raised by the committee.
‘‘extraordinary circumstances that were demonstrate that both (i) Respondent
The court remanded the case to the
beyond the control of the respondent was prevented from filing in a timely
Commission for further proceedings.2
and that were for a duration of at least manner because of unforeseen
On remand, the Commission
48 hours and that prevented the circumstances that were beyond the
determined that the committee had
respondent from filing the report in a control of the respondent, and (ii)
failed to show best efforts and left the
timely manner.’’ 11 CFR 111.35(b)(1). respondent filed the report in question
administrative fine in place.
The regulations also provide examples within 24 hours of the respondent’s no
Commission’s Statement of Reasons in longer being prevented from filing.
of situations that will not be considered
Administrative Fines Case #549 on Proposed 11 CFR 111.35(b)(3). The
‘‘extraordinary circumstances,’’
Remand From the United States District proposed regulation gives two examples
including negligence, problems with
Court for the District of Massachusetts, of unforeseen circumstances that were
vendors or contractors, illness,
Oct. 4, 2005, available at http:// beyond the control of the respondent: a
inexperience, or unavailability of staff,
www.fec.gov/members/toner/sor/ failure of Commission computers,
and computer failures (except failures of
soraf549.pdf. Commission software, or the internet;
the Commission’s computers). 11 CFR
The proposed regulations would and severe weather or other disaster-
111.35(b)(4).
explicitly incorporate a best efforts This NPRM proposes a revision of 11 related incident. Proposed 11 CFR
defense into the process for challenging CFR 111.35 that clarifies the scope of 111.35(c). The proposed regulation also
an administrative fine, would clarify the the regulation’s ‘‘factual errors’’ defense gives examples of circumstances that
scope of the ‘‘factual errors’’ defense, and also replaces the ‘‘extraordinary will not be considered unforeseen and
and would provide for statements of circumstances’’ defense with a best beyond the control of the respondent,
reasons for administrative fines final efforts defense. including negligence; delays caused by
determinations. These proposed committee vendors or contractors;
changes are intended to address the A. 11 CFR 111.35(b)(1)(i)—Changes to illness, inexperience, or unavailability
concerns raised by the Lovely court as the ‘‘Factual Errors’’ Defense of the treasurer or other staff; committee
well as to provide greater clarity The proposed regulation retains a computer or software failures; a
‘‘factual errors’’ defense, currently at 11 committee’s failure to know filing dates;
1 The Commission has long interpreted the ‘‘best
CFR 111.35(b)(1)(i), but clarifies the or a committee’s failure to use FEC
efforts’’ provision as a statutory safe harbor limited
to political committees’ obligation to report certain boundaries of this defense by stating filing software properly. Proposed 11
substantive information that may be beyond the that the facts alleged to be in error must CFR 111.35(d). Like the current
control of the committees to obtain. 11 CFR 104.7 be facts upon which the Commission regulations, the proposed regulations
(defining ‘‘best efforts’’ for purposes of obtaining relied in its RTB finding. Proposed 11
and submitting contributor information).
would require a respondent to explain
2 The Lovely case did not involve a challenge to CFR 111.35(b)(1). The proposed the factual basis supporting the
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the validity of the administrative fines program regulation also provides two examples respondent’s challenge. Proposed 11
rules, and those rules have continued in full force of such factual errors: that the CFR 111.35(e).
and effect since the district court order. However, respondent was not required to file the The best efforts defense set forth in
the court stated that the Commission could ‘‘refine
by regulation what best efforts means in the context
report in question, and that the the proposed regulation would serve as
of submitting a report.’’ Lovely, 307 F. Supp. 2d at respondent did in fact timely file as a proxy for a full factual investigation of
300. described in 11 CFR 100.19. Id. For a respondent committee’s internal

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Federal Register / Vol. 71, No. 236 / Friday, December 8, 2006 / Proposed Rules 71095

practices regarding filing of reports and Commission’s statement of reasons therefore are not independently owned
an analysis of whether such practices regarding the administrative fine at and operated. Most of the other political
were sufficient to constitute best efforts. issue. This change is intended to satisfy committees that would be affected by
Such an investigation would be the Lovely court’s concern that, in that these proposed rules are not-for-profit
particularly burdensome in the context case, the Commission had issued no committees that do not meet the
of the administrative fines program, opinion or statement of reasons along definition of ‘‘small organization.’’ Most
which is meant to be a ‘‘streamlined with its final determination. Lovely, 307 political committees are not
procedure.’’ Final Rule on F. Supp. 2d at 301. Finally, the independently owned and operated
Administrative Fines, 65 FR at 31787. proposed regulations amend section because they are not financed by a small
The Commission seeks comment on 111.37(d) to eliminate reference to the identifiable group of individuals. In
the proposed best efforts defense. Will ‘‘extraordinary circumstances’’ defense, addition, most political committees rely
the proposed test serve as a sufficient which would no longer be applicable. on contributions from a large number of
proxy for a full best efforts The Commission seeks comment on individuals to fund the committees’
investigation? Are there other these changes. Are there additional operations and activities.
circumstances not contemplated by the conforming amendments required to The proposed rules also would not
proposed regulations that could prevent implement the proposed best efforts impose any additional restrictions or
a respondent from timely filing, defense? increase the costs of compliance for
notwithstanding the respondent having respondents within the administrative
Certification of No Effect Pursuant to 5
taken best efforts to ensure that the fines program. Instead, the proposed
U.S.C. 605(b) (Regulatory Flexibility
report would be timely filed? Should rules would provide additional defenses
Act)
the Commission apply a ‘‘but for’’ test, available to respondents in the
a ‘‘contributing factor’’ test, or some The Commission certifies that the administrative fines program, thereby
other test for determining whether a attached proposed rules would not, if and potentially increasing the situations
respondent was prevented from timely promulgated, have a significant in which the Commission imposes no
filing by particular circumstances? economic impact on a substantial civil money penalty. Moreover, the
Should the Commission retain an number of small entities. The basis for proposed rules would apply only in the
extraordinary circumstances defense? this certification is that any individuals administrative fines program, where
Should the Commission entertain and not-for-profit entities that would be penalties are proportionate to the
defenses based on extreme financial affected by these proposed rules are not amount of a political committee’s
hardship? Should the regulations be ‘‘small entities’’ under 5 U.S.C. 601. The
financial activity. Any political
more specific as to what constitutes definition of ‘‘small entity’’ does not
committee meeting the definition of
computer or Internet failures, or severe include individuals, but classifies a not-
‘‘small entity’’ would be subject to lower
weather or disaster? Should the list of for-profit enterprise as a ‘‘small
fines than larger committees with more
circumstances that will not be organization’’ if it is independently
financial activity. Therefore, the
considered unforeseen and beyond the owned and operated and not dominant
attached proposed rules, if promulgated,
control of the respondent be expanded in its field. 5 U.S.C. 601(4). State
would not have a significant economic
or contracted, and if so by which political party committees are not
impact on a substantial number of small
elements? Should the 24 hour period be independently owned and operated
entities.
longer or shorter, or should committees because they are not financed and
be required to file as soon as would be controlled by a small identifiable group List of Subjects in 11 CFR Part 111
practicable? What sort of supporting of individuals, and they are affiliated Administrative practice and
evidence should a respondent be with the larger national political party procedures, Elections, Law enforcement.
required to provide? Are there other organizations. In addition, the State
political party committees representing For the reasons set out in the
important factors that the Commission preamble, the Federal Election
should incorporate into a best efforts the Democratic and Republican parties
have a major controlling influence Commission proposes to amend
defense? Alternatively, should the Subchapter A of Chapter I of Title 11 of
Commission refrain from adding a within the political arena of their State
and are thus dominant in their field. the Code of Federal Regulations as
specific best efforts defense to the follows:
administrative fines regulation? Does District and local party committees are
Lovely preclude this approach? generally considered affiliated with the PART 111—COMPLIANCE
State committees and need not be PROCEDURE (2 U.S.C. 437g, 437d(a))
II. 11 CFR 111.37—Commission Action considered separately. To the extent that
on Administrative Fines Challenges any State party committees representing 1. The authority citation for part 111
Section 111.37 of the Commission’s minor political parties or any other is revised to read as follows:
rules guides Commission decisions political committees might be Authority: 2 U.S.C. 432(i), 437g, 437d(a),
regarding the final determination of considered ‘‘small organizations,’’ the 438(a)(8); 28 U.S.C. 2461 nt.
administrative fines challenges. The number that would be affected by this
proposed regulations direct the 2. Section 111.35 is revised to read as
proposed rule is not substantial.
Commission to conclude that no Furthermore, any separate segregated follows:
violation has occurred if the funds that would be affected by these § 111.35 If the respondent decides to
Commission based its RTB finding on a proposed rules are not-for-profit challenge the alleged violation or proposed
factual error or if the respondent made political committees that do not meet civil money penalty, what should the
best efforts to timely file. Proposed 11 the definition of ‘‘small organization’’ respondent do?
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CFR 111.37(b). The proposed because they are financed by a (a) To challenge a reason to believe
regulations also include a new section combination of individual contributions finding or proposed civil money
111.37(d), which makes clear that the and financial support for certain penalty, the respondent must submit a
staff recommendation regarding the expenses from corporations, labor written response to the Commission
challenge, including any changes made organizations, membership within forty days of the Commission’s
by the Commission, will serve as the organizations, or trade associations, and reason to believe finding.

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71096 Federal Register / Vol. 71, No. 236 / Friday, December 8, 2006 / Proposed Rules

(b) The respondent’s written response authorize the reviewing officer to notify • DOT Docket Web site: Go to
must establish at least one of the the respondent by letter of its final http://dms.dot.gov and follow the
following grounds for challenging the determination. instructions for sending your comments
reason to believe finding and/or civil * * * * * electronically.
money penalty: (d) When the Commission makes a • Government-wide rulemaking Web
(1) The Commission’s reason to final determination under this section, site: Go to http://www.regulations.gov
believe finding is based on a factual the statement of reasons for the and follow the instructions for sending
error. Examples of a factual error Commission action consists of the your comments electronically.
include, but are not limited to, that the reasons provided in the reviewing • Mail: Docket Management Facility,
committee was not required to file or officer’s recommendation, if adopted by U.S. Department of Transportation, 400
that the committee timely filed as the Commission, subject to any Seventh Street, SW., Nassif Building,
described in 11 CFR 100.19 (such as by Commission amendments, additions, Room PL–401, Washington, DC 20590.
timely depositing a paper filing with an substitutions, or statements of reasons. • Fax: (202) 493–2251.
overnight delivery service); • Hand Delivery: Room PL–401 on
Dated: November 30, 2006.
(2) The Commission improperly
Michael E. Toner, the plaza level of the Nassif Building,
calculated the civil money penalty; or
Chairman, Federal Election Commission. 400 Seventh Street, SW., Washington,
(3) The respondent made best efforts
[FR Doc. E6–20735 Filed 12–7–06; 8:45 am] DC, between 9 a.m. and 5 p.m., Monday
to file in a timely manner in that:
through Friday, except Federal holidays.
(i) The respondent was prevented BILLING CODE 6715–01–P
from filing in a timely manner because Contact Empresa Brasileira de
of unforeseen circumstances that were Aeronautica S.A. (EMBRAER), P.O. Box
beyond the control of the respondent; DEPARTMENT OF TRANSPORTATION 343–CEP 12.225, Sao Jose dos Campos–
and SP, Brazil, for service information
(ii) The respondent filed within 24 Federal Aviation Administration identified in this proposed AD.
hours thereafter. FOR FURTHER INFORMATION CONTACT:
(c) Circumstances that will be 14 CFR Part 39 Todd Thompson, Aerospace Engineer,
considered unforeseen and beyond the [Docket No. FAA–2006–26462; Directorate International Branch, ANM–116,
control of respondent include, but are Identifier 2006–NM–221–AD] Transport Airplane Directorate, FAA,
not limited to, a failure of Commission 1601 Lind Avenue, SW., Renton,
computers, Commission-provided RIN 2120–AA64 Washington 98057–3356; telephone
software, or the Internet, and severe (425) 227–1175; fax (425) 227–1149.
Airworthiness Directives; Empresa
weather or other disaster-related SUPPLEMENTARY INFORMATION:
Brasileira de Aeronautica S.A.
incident.
(EMBRAER) Model ERJ 170–100 LR, Comments Invited
(d) Circumstances that will not be
–100 STD, –100 SE, –100 SU, –200 LR,
considered unforeseen and beyond the We invite you to submit any relevant
–200 STD, and –200 SU Airplanes and
control of respondent include, but are written data, views, or arguments
Model ERJ 190 Airplanes
not limited to, negligence; delays caused regarding this proposed AD. Send your
by committee vendors or contractors; AGENCY: Federal Aviation comments to an address listed in the
illness, inexperience, or unavailability Administration (FAA), Department of ADDRESSES section. Include the docket
of the treasurer or other staff; committee Transportation (DOT). number ‘‘FAA–2006–26462; Directorate
computer or software failures; a ACTION: Notice of proposed rulemaking Identifier 2006–NM–221–AD’’ at the
committee’s failure to know filing dates; (NPRM). beginning of your comments. We
or a committee’s failure to use filing specifically invite comments on the
software properly. SUMMARY: The FAA proposes to adopt a
overall regulatory, economic,
(e) Respondent’s written response new airworthiness directive (AD) for environmental, and energy aspects of
must detail the factual basis supporting certain EMBRAER Model ERJ 170–100 the proposed AD. We will consider all
the grounds and include any supporting LR, –100 STD, –100 SE, –100 SU, –200 comments received by the closing date
documentation. LR, –200 STD, and –200 SU airplanes and may amend the proposed AD in
3. In § 111.37, paragraphs (b) and (d) and Model ERJ 190 airplanes. This light of those comments.
are revised to read as follows: proposed AD would require inspecting
We will post all comments we
to determine the part number and serial
§ 111.37 What will the Commission do receive, without change, to http://
number of the deployment actuator of
once it receives the respondent’s written dms.dot.gov, including any personal
the ram air turbine (RAT) and related
response and the reviewing officer’s information you provide. We will also
recommendation? investigative and corrective actions if
post a report summarizing each
necessary. This proposed AD results
* * * * * substantive verbal contact with FAA
from reports that the RAT may not fully
(b) If the Commission, after reviewing personnel concerning this proposed AD.
deploy due to galling between the
the reason to believe finding, the Using the search function of that Web
piston rod and gland housing of the
respondent’s written response, and the site, anyone can find and read the
deployment actuator. We are proposing
reviewing officer’s written comments in any of our dockets,
this AD to prevent the RAT from failing
recommendation, determines by an including the name of the individual
to deploy, which could result in loss of
affirmative vote of at least four (4) of its who sent the comment (or signed the
control of the airplane during in-flight
members, that no violation has occurred comment on behalf of an association,
emergencies.
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(either because the Commission had business, labor union, etc.). You may
based its reason to believe finding on a DATES: We must receive comments on review the DOT’s complete Privacy Act
factual error or because the respondent this proposed AD by January 8, 2007. Statement in the Federal Register
made best efforts to file in a timely ADDRESSES: Use one of the following published on April 11, 2000 (65 FR
manner) or otherwise terminates its addresses to submit comments on this 19477–78), or you may visit http://
proceedings, the Commission shall proposed AD. dms.dot.gov.

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