66590 Federal Register / Vol. 83, No. 247 / Thursday, December 27, 2018 / Rules and Regulations 

1Further, Commission regulations provide that 

persons other than political committees ‘‘shall file 

a report or statement . . . in any quarterly reporting 

as amended; the Nuclear Waste Policy 

Act of 1982, as amended; and 5 U.S.C. 

552 and 553; the NRC is adopting the 

following amendments to 10 CFR part 

72: 

PART 72—LICENSING 

REQUIREMENTS FOR THE 

INDEPENDENT STORAGE OF SPENT 

NUCLEAR FUEL, HIGH–LEVEL 

RADIOACTIVE WASTE, AND 

REACTOR–RELATED GREATER THAN 

CLASS C WASTE 

■ 1. The authority citation for part 72 

continues to read as follows: 

Authority: Atomic Energy Act of 1954, 

secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 

183, 184, 186, 187, 189, 223, 234, 274 (42 

U.S.C. 2071, 2073, 2077, 2092, 2093, 2095, 

2099, 2111, 2201, 2210e, 2232, 2233, 2234, 

2236, 2237, 2238, 2273, 2282, 2021); Energy 

Reorganization Act of 1974, secs. 201, 202, 

206, 211 (42 U.S.C. 5841, 5842, 5846, 5851); 

National Environmental Policy Act of 1969 

(42 U.S.C. 4332); Nuclear Waste Policy Act 

of 1982, secs. 117(a), 132, 133, 134, 135, 137, 

141, 145(g), 148, 218(a) (42 U.S.C. 10137(a), 

10152, 10153, 10154, 10155, 10157, 10161, 

10165(g), 10168, 10198(a)); 44 U.S.C. 3504 

note. 

■ 2. In § 72.214, Certificate of 

Compliance 1029 is revised to read as 

follows: 

§ 72.214 List of approved spent fuel 

storage casks. 

* * * * * 

Certificate Number: 1029. 

Initial Certificate Effective Date: 

February 5, 2003. 

Amendment Number 1 Effective Date: 

May 16, 2005. 

Amendment Number 2 Effective Date: 

Amendment not issued by the NRC. 

Amendment Number 3 Effective Date: 

February 23, 2015. 

Amendment Number 4 Effective Date: 

March 12, 2019. 

SAR Submitted by: Transnuclear, Inc. 

SAR Title: Final Safety Analysis 

Report for the Standardized Advanced 

NUHOMS® Horizontal Modular Storage 

System for Irradiated Nuclear Fuel. 

Docket Number: 72–1029. 

Certificate Expiration Date: February 

5, 2023. 

Model Number: Standardized 

Advanced NUHOMS®¥24PT1, 

¥24PT4, and ¥32PTH2. 

* * * * * 

Dated at Rockville, Maryland, this 19th day 

of December, 2018. 

For the Nuclear Regulatory Commission. 

Margaret M. Doane, 

Executive Director for Operations. 

[FR Doc. 2018–27949 Filed 12–26–18; 8:45 am] 

BILLING CODE 7590–01–P 

FEDERAL ELECTION COMMISSION 

11 CFR Parts 104 and 109 

[Notice 2018–17] 

Reporting Multistate Independent 

Expenditures and Electioneering 

Communications 

AGENCY: Federal Election Commission. 

ACTION: Final rule. 

SUMMARY: The Commission is adopting 

final rules to address reporting of 

independent expenditures and 

electioneering communications that 

relate to presidential primary elections 

and that are publicly distributed in 

multiple states but that do not refer to 

any particular state’s primary election. 

DATES: This rule is subject to subject to 

Congressional review. 52 U.S.C. 

30111(d). The effective date is March 

31, 2019. However, at the conclusion of 

the Congressional review, if the effective 

date has been changed, the Commission 

will publish a document in the Federal 

Register to establish the actual effective 

date. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Robert M. Knop, Assistant General 

Counsel, or Ms. Joanna S. 

Waldstreicher, Attorney, 1050 First St. 

NE, Washington, DC 20463, (202) 694– 

1650 or (800) 424–9530. Documents 

relating to the rulemaking record are 

available on the Commission’s website 

at http://sers.fec.gov/fosers, reference 

REG 2014–02. 

SUPPLEMENTARY INFORMATION: The 

Commission is revising its regulations 

concerning independent expenditures 

and electioneering communications as 

they apply to communications that 

relate to presidential primary elections 

and that are publicly distributed in 

multiple states but that do not refer to 

any particular state’s primary election (a 

‘‘multistate independent expenditure’’ 

or ‘‘multistate electioneering 

communication’’). The Act and 

Commission regulations require persons 

who make independent expenditures 

and electioneering communications to 

report certain information to the 

Commission within specified periods of 

time. See 52 U.S.C. 30104(b)–(c), (f), (g); 

11 CFR 104.3, 104.4, 104.20, 109.10. 

The Commission is revising its 

regulations to clarify when and how 

multistate independent expenditures 

and multistate electioneering 

communications must be reported. 

Although the Commission also 

proposed revising its regulations 

concerning independent expenditures 

by authorized committees of candidates, 

the Commission could not reach 

agreement to revise those regulations at 

this time. See Independent 

Expenditures by Authorized 

Committees; Reporting Multistate 

Independent Expenditures and 

Electioneering Communications, 83 FR 

3996, 3999–4000 (Jan. 29, 2018). The 

Commission may reconsider revisions to 

those regulations in a separate 

rulemaking at a later date. 

Transmission of Final Rules to 

Congress 

Before final promulgation of any rules 

or regulations to carry out the 

provisions of the Federal Election 

Campaign Act, the Commission 

transmits the rules or regulations to the 

Speaker of the House of Representatives 

and the President of the Senate for a 

thirty-legislative-day review period. 52 

U.S.C. 30111(d). The effective date of 

this final rule is March 31, 2019. 

However, at the conclusion of the 

Congressional review, if the effective 

date has been changed, the Commission 

will publish a document in the Federal 

Register to establish the actual effective 

date. 

Explanation and Justification 

I. Background 

The Act and Commission regulations 

require that political committees report 

all disbursements. 52 U.S.C. 

30104(b)(4); 11 CFR 104.3(b). Political 

committees must also itemize their 

disbursements according to specific 

categories. 52 U.S.C. 30104(b)(4); 11 

CFR 104.3(b)(1)–(2). An ‘‘independent 

expenditure’’ is an expenditure that 

expressly advocates the election or 

defeat of a clearly identified federal 

candidate and is not coordinated with 

such candidate (or his or her opponent) 

or political party. 52 U.S.C. 30101(17); 

see also 11 CFR 100.16(a). Under 

existing regulations, a political 

committee (other than an authorized 

committee) that makes independent 

expenditures must itemize those 

expenditures on its regular periodic 

reports, stating, among other things, the 

name of the candidate whom the 

expenditure supports or opposes and 

the office sought by that candidate. 52 

U.S.C. 30104(b)(4)(H)(iii), (6)(B)(iii); 11 

CFR 104.4(a). Any person other than a 

political committee that makes 

independent expenditures aggregating 

in excess of $250 during a calendar year 

must disclose the same information in a 

statement filed with the Commission.1

52 U.S.C. 30104(c); 11 CFR 109.10(b). 


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period thereafter in which additional independent 

expenditures are made.’’ 11 CFR 109.10(b). 

2Available at https://transition.fec.gov/law/ 

policy/nationwideiereporting/draftnationwid

eiereporting.pdf. The Draft Interpretive Rules 

referred to the type of independent expenditures 

that are the subject of this rulemaking as 

‘‘nationwide independent expenditures.’’ As 

discussed below, however, the Commission has 

determined that an independent expenditure or 

electioneering communication need not be 

distributed in all states to fall under the proposed 

rules. Accordingly, such communications are 

referred to in this document as ‘‘multistate’’—rather 

than ‘‘nationwide’’ — independent expenditures 

and electioneering communications. 

3 ‘‘Memo text’’ refers to a means of including 

additional information or explanation about a 

receipt or disbursement on a Commission form. See 

FEC, Campaign Guide for Nonconnected 

Committees (2008), https://www.fec.gov/resources/ 

cms-content/documents/nongui.pdf. 

4These comments are available on the 

Commission’s website at http://www.fec.gov/law/ 

policy.shtml. 

In addition, any person that makes 

independent expenditures aggregating 

$10,000 or more for an election in any 

calendar year, up to and including the 

20th day before an election, must report 

the expenditures within 48 hours. 52 

U.S.C. 30104(g)(2)(A); 11 CFR 

104.4(b)(2), 109.10(c). Additional 

reports must be filed within 48 hours 

each time the person makes further 

independent expenditures aggregating 

$10,000 or more with respect to the 

same election. 52 U.S.C. 30104(g)(2)(B); 

11 CFR 104.4(b)(2), 109.10(c). 

Any person that makes independent 

expenditures aggregating at least $1,000 

less than 20 days, but more than 24 

hours, before the date of an election 

must report the expenditures within 24 

hours. 52 U.S.C. 30104(g)(1)(A); 11 CFR 

104.4(c), 109.10(d). Additional reports 

must be filed within 24 hours each time 

the person makes further independent 

expenditures aggregating $1,000 or more 

with respect to the same election. 52 

U.S.C. 30104(g)(1)(B); 11 CFR 104.4(c), 

109.10(d). 

The 48- and 24-hour filing 

requirements begin to run when the 

independent expenditures aggregating at 

least $10,000 or $1,000, respectively, are 

‘‘publicly distributed or otherwise 

publicly disseminated.’’ 11 CFR 

104.4(b)(2), (c), (f), 109.10(c)–(d). For 

purposes of calculating these 

expenditures and determining if a 

communication is ‘‘publicly 

distributed’’ within an applicable 20- 

day pre-election period, each state’s 

presidential primary election is 

considered a separate election. See 

Advisory Opinion 2003–40 (U.S. Navy 

Veterans’ Good Government Fund) at 3– 

4 (noting that ‘‘publicly distributed’’ in 

§ 104.4 has same meaning as the term in 

11 CFR 100.29(b)(3)(ii)(A), under which 

each state’s presidential primary 

election is a separate election) (citing 

Bipartisan Campaign Reform Act of 

2002 Reporting, 68 FR 404, 407 (Jan. 3, 

2003); Electioneering Communications, 

67 FR 65190, 65194 (Oct. 23, 2002)). 

An ‘‘electioneering communication,’’ 

in the context of a presidential election, 

is a broadcast, cable, or satellite 

communication that refers to a clearly 

identified candidate for President or 

Vice President and is ‘‘publicly 

distributed’’ within 60 days before a 

general election or 30 days before a 

primary election or nominating 

convention. 52 U.S.C. 30104(f)(3)(A)(i); 

11 CFR 100.29(a). If the candidate 

identified in the communication is 

seeking a party’s nomination for the 

presidential or vice presidential 

election, ‘‘publicly distributed’’ means 

the communication can be received by 

at least 50,000 people in a state where 

a primary election is being held within 

30 days, or that it can be received by at 

least 50,000 people anywhere in the 

United States within the period between 

30 days before the first day of the 

national nominating convention and the 

conclusion of the convention. 11 CFR 

100.29(b)(3). 

A person who makes electioneering 

communications that aggregate in excess 

of $10,000 in a calendar year must file 

a statement with the Commission 

disclosing certain information about the 

electioneering communication, 

including the election to which the 

electioneering communication pertains. 

52 U.S.C. 30104(f); 11 CFR 104.20(b)– 

(c). As with independent expenditures, 

each state’s presidential primary 

election is considered a separate 

election for purposes of determining 

whether an electioneering 

communication is ‘‘publicly 

distributed’’ within the pre-election 

reporting window. See Advisory 

Opinion 2003–40 (U.S. Navy Veterans’ 

Good Government Fund) at 3–4. 

The Commission’s current regulations 

do not specifically address how the 

public distribution criteria and other 

reporting requirements apply to 

independent expenditures or 

electioneering communications that are 

made in the context of a presidential 

primary election and that are distributed 

in multiple states. In particular, the 

regulations do not specify which state’s 

primary election date is relevant for 

determining whether the 

communication falls within the 24-hour 

reporting window (for independent 

expenditures) or the 30-day definitional 

window (for electioneering 

communications). 

In a 2012 advisory opinion, the 

Commission considered how the 

independent expenditure reporting 

requirements applied to independent 

expenditures that supported or opposed 

a presidential primary candidate and 

were distributed nationwide without 

referring to any specific state’s primary 

election. See Advisory Opinion 2011–28 

(Western Representation PAC). In that 

advisory opinion, the Commission 

concluded that a political committee 

making such an independent 

expenditure should divide the cost of 

the independent expenditure by the 

number of states that had not yet held 

their primary elections, and should use 

the resulting amounts to determine 

whether the committee must file 24- and 

48-hour reports and for which states. Id. 

In 2014, the Commission made 

available for public comment three 

alternative draft interpretive rules on 

this topic. Draft Notices of Interpretive 

Rule Regarding Reporting Nationwide 

Independent Expenditures in 

Presidential Primary Elections (Jan. 17, 

2014) (‘‘Draft Interpretive Rules’’).2 Draft 

A would have followed the approach set 

forth in Advisory Opinion 2011–28 

(Western Representation PAC), 

instructing persons making a 

nationwide independent expenditure to 

divide the cost of the nationwide 

independent expenditure by the number 

of states with upcoming presidential 

primary elections. Draft B would have 

instructed persons making a nationwide 

independent expenditure to report it as 

a single expenditure without indicating 

a state where the expenditure was made, 

instead using ‘‘memo text’’ 3 to indicate 

that the independent expenditure was 

made nationwide. Draft B also would 

have instructed filers to use the first day 

of the candidate’s national nominating 

convention as the election date for 

determining whether they must file 24- 

and 48-hour reports. Finally, Draft C 

would have provided the same reporting 

guidance as Draft B, except that Draft C 

would have instructed filers to use the 

date of the next presidential primary 

election (rather than the beginning of 

the national nominating convention) as 

the election date. 

The Commission received two 

comments on the Draft Interpretive 

Rules.4 Both comments generally 

supported Draft B. Both comments also 

argued that the approach in Draft A was 

unnecessarily complex and would not 

provide clear information to the public 

about the reported independent 

expenditures. After reviewing the 

comments and engaging in further 

deliberation, the Commission 

determined that this issue would be 

better addressed through regulatory 


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5The Internal Revenue Service also submitted a 

comment indicating that it sees no conflict between 

this rulemaking and the Internal Revenue Code or 

Treasury regulations. See 52 U.S.C. 30111(f). 

amendments than through an 

interpretive rule. 

The Commission published a Notice 

of Proposed Rulemaking (‘‘NPRM’’) in 

the Federal Register on January 29, 

2018. Independent Expenditures by 

Authorized Committees; Reporting 

Multistate Independent Expenditures 

and Electioneering Communications, 83 

FR 3996 (Jan. 29, 2018). The NPRM 

provided three alternative sets of 

proposed rules—Alternative A, 

Alternative B, and Alternative C—and 

sought public comment on each of 

them. The comment period ended on 

March 30, 2018. The Commission 

received 11 substantive comments from 

14 commenters in response to the 

NPRM.5

II. Revised 11 CFR 104.3 and 104.4— 

Reporting Multistate Independent 

Expenditures by Political Committees 

As set forth below, the Commission is 

revising § 104.3, concerning the content 

of independent expenditure reports by 

political committees, and § 104.4, 

concerning the timing of independent 

expenditure reports by political 

committees. The Commission is making 

these revisions to clarify the reporting 

obligations of a political committee 

when it makes a multistate independent 

expenditure. Of the three alternatives 

proposed in the NPRM for revising these 

regulations, the Commission is adopting 

Alternative B. 

1. New 11 CFR 104.3(b)(3)(vii)(C)— 

Content of Reports 

As described above, political 

committees—other than authorized 

committees—must provide for each 

reported disbursement in connection 

with an independent expenditure the 

date, amount, and purpose of the 

independent expenditure, a statement 

indicating whether the independent 

expenditure was in support of, or in 

opposition to, a candidate, the name 

and office sought by that candidate, and 

a certification that the expenditure was, 

in fact, independent. 52 U.S.C. 

30104(b)(6)(B); 11 CFR 104.3(b)(3)(vii). 

The Commission proposed three 

alternatives for revising this paragraph 

to more clearly indicate how political 

committees should provide the required 

information for multistate independent 

expenditures. Alternatives A and B both 

would add a new paragraph 

(b)(3)(vii)(C), requiring that when a 

political committee makes an 

independent expenditure in support of 

or in opposition to a candidate in a 

presidential primary election, and the 

communication is publicly distributed 

or otherwise disseminated in more than 

a specified number of states but does 

not refer to any particular state, the 

political committee must report the 

independent expenditure as a single 

expenditure and use memo text to 

indicate the states where the 

communication is distributed. Under 

Alternatives A and B, the Commission 

would also redesignate current 

paragraph (b)(3)(vii)(C) as paragraph 

(b)(3)(vii)(D). 

Under Alternative C, which also 

would have added a new paragraph 

(b)(3)(vii)(C), political committees 

would allocate the amount of the 

independent expenditure among the 

states where it is distributed whose 

primary elections have yet to occur, 

according to a ratio based on the 

number of U.S. House of 

Representatives districts apportioned to 

each state, and report the amount spent 

for each such state. 

In addition to comments on the 

proposals generally, the Commission 

specifically sought comment on the 

number of states that would be the 

threshold for a communication to fall 

within the new paragraph. Requiring an 

independent expenditure to be 

‘‘nationwide’’—i.e., disseminated in all 

fifty states plus the District of Columbia 

(and possibly Puerto Rico, Guam, and 

American Samoa)—would exclude some 

independent expenditures that are 

distributed in a large number of states 

(e.g., the entire continental United 

States). This would significantly limit 

the benefits and application of the 

proposed reporting rule. Alternatively, 

applying the new provision to 

independent expenditures that are 

disseminated in only a handful of states 

might result in independent 

expenditures that are targeted to a 

specific state’s primary—but partially 

distributed in neighboring states that 

share its media markets—being 

misleadingly reported as ‘‘multistate’’ 

communications. 

Most of the commenters were in 

agreement that either Alternative A or 

Alternative B would be preferable to the 

reporting method identified in the 

Western Representation PAC advisory 

opinion or the one proposed in 

Alternative C. These commenters 

generally agreed that Alternatives A and 

B are both improvements over the 

existing guidance, in terms of the 

transparency and accuracy of the 

information provided to the public as 

well as the burden on the filer. Many of 

the commenters also agreed that 

Alternative C is similar to the approach 

of Advisory Opinion 2011–28 (Western 

Representation PAC), and is more 

complex and less transparent than 

Alternatives A and B. 

Many of the commenters expressed a 

preference for Alternative A due to its 

simplicity for filers, and one commenter 

also opined that Alternative A would 

operate better for digital ads because 

they are more frequently intended to 

influence the general election on a 

national basis. One commenter 

preferred Alternative B, contending that 

Alternative A would not satisfy the 24- 

hour reporting requirement of the Act. 

Another commenter argued that both 

alternatives would effectively require 

reporting multistate independent 

expenditures of more than $1,000 in the 

aggregate rather than $1,000 per state of 

distribution as required by statute. The 

commenter recommended that the 

Commission modify either of these 

alternatives to set the threshold amount 

for reporting multistate independent 

expenditures at $1,000 per state in 

which it is distributed, to better 

implement the statutory reporting 

requirement. Id. 

Six commenters addressed the 

minimum number of states in which a 

communication would have to be 

publicly distributed before being 

considered a multistate independent 

expenditure. The suggested number of 

states ranged from two to ten, though 

there was no consensus among 

commenters on the actual number that 

should be used. However, several 

commenters did agree that the 

Commission should take into 

consideration the fact that many media 

markets cross state lines, and that a 

communication distributed in multiple 

states may in fact be targeted at only one 

state’s primary election. 

Based on the comments received and 

the applicable statutory requirements, 

the Commission has decided to add new 

paragraph (b)(3)(vii)(C) in § 104.3, as 

proposed in Alternatives A and B. The 

Commission agrees with the 

commenters who expressed the view 

that these Alternatives are preferable to 

Alternative C because Alternatives A 

and B would be less complex than 

Alternative C and would provide more 

accurate information to the public 

concerning the true costs of multistate 

independent expenditures. The new 

paragraph requires that when a political 

committee makes an independent 

expenditure in support of or in 

opposition to a candidate in a 

presidential primary election, and the 

communication is publicly distributed 

or otherwise disseminated in six or 

more states but does not refer to any 

particular state, the political committee 

must report the independent 


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6Comment from Campaign Legal Center, March 

29, 2018, at 3 (citing Kantar Media, DMA County 

Coverage as Defined by Nielsen Media Research 

(Fall 2016)). 

expenditure as a single expenditure and 

use memo text to indicate the states 

where the communication is 

distributed. The political committee 

must also indicate the state with the 

next upcoming presidential primary 

among those states where the 

independent expenditure is distributed, 

as specified in new § 104.4(f)(2) and 

explained below. The Commission is 

also redesignating current paragraph 

(b)(3)(vii)(C) as paragraph (b)(3)(vii)(D). 

The Commission’s determination that 

the new § 104.3(b)(3)(vii)(C) should 

apply to an independent expenditure 

that is publicly distributed or otherwise 

disseminated in at least six states is 

based on the fact that U.S. media 

markets often overlap state lines. Some 

media markets include parts of up to 

four states, and in one case, four states 

and the District of Columbia.6 An 

independent expenditure distributed in 

a single such media market could be 

targeted to a single state’s primary 

election, but would be considered a 

‘‘multistate’’ independent expenditure if 

the Commission set the threshold 

number for the new provision lower 

than six. 

The Commission also proposed 

modifying the instructions for its forms 

to conform them to the new reporting 

provisions. The Commission intends 

that the instructions will provide a 

political committee with flexibility on 

how to report the states where a 

multistate independent expenditure is 

distributed, in order to allow for timely 

and complete information to be 

available to the public. After 

considering the comments received, the 

Commission has concluded that filers 

may use descriptive memo text to 

indicate either the specific states or the 

regions where a multistate independent 

expenditure is distributed, such as 

‘‘nationwide’’ or ‘‘New England,’’ so 

long as the description is sufficient to 

allow a member of the public to 

understand where the communication 

was distributed. The Commission will 

publish non-exhaustive lists of adequate 

and inadequate descriptions similar to 

its existing lists of adequate and 

inadequate ‘‘purpose of disbursement’’ 

descriptions. See Purposes of 

Disbursement, https://www.fec.gov/ 

help-candidates-and-committees/ 

purposes-disbursement/. Filers should 

also indicate the state with the next 

upcoming presidential primary among 

those states where the independent 

expenditure is distributed, as specified 

in § 104.4(f)(2). 

For independent expenditures 

distributed in fewer than six states, 

there is no change in reporting 

requirements. Each state’s presidential 

primary election is deemed a separate 

election, and therefore filers will 

continue to report independent 

expenditures that do not fall within new 

§ 104.3(b)(3)(vii)(C) by itemizing each 

such independent expenditure by state 

and aggregating the amount allocated to 

each state with other independent 

expenditures in that state. 

2. New 11 CFR 104.4(f)(2)—Timing of 

Reports 

In § 104.4, the Commission proposed 

to redesignate current paragraph (f) as 

paragraph (f)(1) and add new paragraph 

(f)(2), concerning when a political 

committee must file a 24- or 48-hour 

report for a multistate independent 

expenditure. As described above, the 

Act and Commission regulations require 

any person who makes independent 

expenditures aggregating at or above 

certain threshold amounts and within 

certain periods prior to an election to 

report those independent expenditures 

within 48 or 24 hours. 52 U.S.C. 

30104(g)(1)(A), (2)(A); 11 CFR 

104.4(b)(2), (c), 109.10(c)–(d). The 

Commission proposed three alternative 

revisions to §§ 104.4 and 109.10 to 

clarify which state’s primary election 

date is relevant for determining whether 

the communication falls within the 24- 

hour reporting window when an 

independent expenditure is publicly 

distributed in multiple states but the 

communication does not refer to a 

particular state’s primary. 

Under Alternative A, a political 

committee making a multistate 

independent expenditure would report 

it as a single expenditure, as discussed 

above, and would use the date of the 

national nominating convention for the 

clearly identified candidate’s party as 

the date of the election for purposes of 

determining whether the independent 

expenditure is within the 20 days before 

the election and is therefore subject to 

the 24-hour reporting requirement 

under 52 U.S.C. 30104(g)(1). Under 

Alternative B, the political committee 

would use the date of the next 

upcoming presidential primary among 

those to be held in the states in which 

the independent expenditure is 

distributed or disseminated. Under 

Alternative C, the political committee 

would allocate the amount of the 

expenditure among the states where it is 

distributed whose primary elections 

have yet to occur, according to a ratio 

based on the number of U.S. House of 

Representatives districts apportioned to 

each state. The political committee 

would use the date of the next 

upcoming primary election among the 

states where the independent 

expenditure was distributed to 

determine whether the independent 

expenditure was distributed within the 

20 days before the election, and the 

amount of the expenditure allocated to 

that state to determine whether the 

political committee’s aggregate spending 

in that state had exceeded the 

applicable threshold for reporting. 

Most of the commenters agreed that 

either Alternative A or Alternative B 

would be preferable to the existing 

reporting method described in Advisory 

Opinion 2011–28 (Western 

Representation PAC) or the proposal in 

Alternative C. The commenters were 

generally in agreement that both 

Alternative A and Alternative B would 

provide greater transparency and more 

accurate information to the public, and 

would reduce the burden on filers. 

Many of the commenters expressed a 

preference for Alternative A due to its 

simplicity for filers, while one 

commenter preferred Alternative B, 

contending that Alternative A would 

not satisfy the 24-hour reporting 

requirement of the Act. 

After considering the comments 

received and the applicable statutory 

requirements, the Commission has 

decided to redesignate current 

paragraph (f) in § 104.4 as paragraph 

(f)(1) and add new paragraph (f)(2) as 

proposed in Alternative B, concerning 

when a political committee must file a 

24- or 48-hour report for a multistate 

independent expenditure. As described 

in the NPRM, a political committee that 

makes a multistate independent 

expenditure must report it as a single 

expenditure, as discussed above, and 

the political committee must use the 

date of the next upcoming presidential 

primary among the presidential 

primaries to be held in the states in 

which the independent expenditure is 

distributed or disseminated as the date 

of the election to determine whether the 

independent expenditure is within the 

20 days before the election and is 

therefore subject to the 24-hour 

reporting requirement under 52 U.S.C. 

30104(g)(1). 

The Commission agrees with those 

commenters who expressed the view 

that Alternative C is complex and would 

not improve the information available to 

the public about the true costs of 

multistate independent expenditures. 

The Commission is adopting the new 

paragraph (f)(2) as proposed in 

Alternative B because it implements the 

requirement in 52 U.S.C. 30104(g)(1) 


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7For example, in 2016 the Republican national 

nominating convention was held July 18–21 and the 

Democratic national nominating convention was 

held July 25–28, while the earliest state primary 

election was Feb. 9 (New Hampshire) and the latest 

was June 14 (District of Columbia). The full 

calendar of 2016 state presidential primary 

elections can be found at https://www.nytimes.com/ 

interactive/2016/us/elections/primary-calendarand-results.html?. 

8 In 2016, Super Tuesday was March 1, when 11 

states held presidential primary elections. See 

https://www.nytimes.com/elections/2016/results/ 

2016-03-01. 

that independent expenditures 

aggregating $1,000 or more after the 

20th day, but more than 24 hours, before 

an election be reported within 24 hours, 

more accurately than Alternative A 

would do. The major parties’ 

nominating conventions are held after 

all of the presidential primary elections 

have taken place, more than five months 

after the earliest state presidential 

primary elections and typically more 

than 20 days after even the latest 

primary elections.7 Under Alternative 

A, multistate independent expenditures 

distributed in proximity to most, if not 

all, state primary elections would 

effectively not be subject to the 24-hour 

reporting requirement because they 

would be distributed more than 20 days 

before the nominating conventions, and 

the public would be deprived of timely 

information about expenditures 

intended to influence those primary 

elections. Because the state presidential 

primary elections are typically held 

more than 20 days before the national 

nominating conventions, Alternative A 

would, in practice, require 24-hour 

reports only for multistate independent 

expenditures intended to influence the 

national conventions or the general 

election, even though such independent 

expenditures would fall outside the 20- 

day window before the general election. 

By contrast, under Alternative B, the 24- 

hour reporting requirement would apply 

to independent expenditures with the 

ability to influence multiple states’ 

presidential primary elections, such as 

those held on Super Tuesday,8 as well 

as those distributed within the 20-day 

period before the national nominating 

conventions. See 52 U.S.C. 30101(1)(B) 

(defining an ‘‘election,’’ in part, to 

include ‘‘a convention or caucus of a 

political party, which has authority to 

nominate a candidate’’). 

The Commission acknowledges that it 

might be less burdensome for reporting 

committees to comply with Alternative 

A because that proposal relies on a 

single election date rather than multiple 

dates, but the Commission may not opt 

for ease of compliance at the expense of 

conforming to the statute. Therefore the 

Commission is adopting Alternative B, 

because it best complies with the 

statutory reporting requirement while 

also serving the public’s interest in 

timely disclosure. 

IV. Revised 11 CFR 109.10—Reporting 

Multistate Independent Expenditures 

by Persons Other Than Political 

Committees 

The Commission proposed to 

incorporate into 11 CFR 109.10(e)— 

which addresses the content of 

independent expenditure reports filed 

by persons other than political 

committees—the new requirements for 

reporting multistate independent 

expenditures that the Commission is 

adding to § 104.3(b)(3)(vii)(C). Two 

commenters addressed this proposal, 

agreeing generally that the same 24- and 

48-hour reporting framework proposed 

for multistate independent expenditures 

should apply to political committees 

and other persons. 

Taking into account the comments 

received and the reasons explained 

above regarding the adoption of new 

§ 104.3(b)(3)(vii)(C), the Commission 

concludes that applying the same 24- 

and 48-hour independent expenditure 

reporting requirements to persons other 

than political committees would lessen 

the chance of confusion among both 

filers and the public, best serving the 

public’s interest in timely disclosure. 

Accordingly, the Commission is 

incorporating into 11 CFR 109.10(e)— 

which addresses the content of 

independent expenditure reports filed 

by persons other than political 

committees—the requirements for 

reporting multistate independent 

expenditures that the Commission is 

adding to § 104.3(b)(3)(vii)(C). 

Specifically, revised § 109.10(e)(1)(iv) 

provides that when a person other than 

a political committee makes an 

expenditure meeting the criteria set 

forth in § 104.3(b)(3)(vii)(C) (i.e., an 

independent expenditure that supports 

or opposes a presidential primary 

candidate and that is distributed in six 

or more states but does not refer to any 

particular state), the person must report 

the expenditure pursuant to the 

provisions of § 104.3(b)(3)(vii)(C). 

V. Revised 11 CFR 104.20— 

Electioneering Communications 

In § 104.20(c), which concerns the 

content of reports regarding 

electioneering communications, the 

Commission proposed to add a new 

paragraph if it adopted Alternative A or 

B described above. The new paragraph 

would apply when the relevant election 

is a presidential primary election and 

the electioneering communication is 

distributed in more than a specified 

number of states but does not refer to 

any particular state’s primary election. 

This new paragraph would parallel the 

new reporting requirements for 

multistate independent expenditures 

discussed above, providing that the 

reporting person must report the 

electioneering communication as a 

single communication and use a memo 

text to indicate the states in which the 

communication constitutes an 

electioneering communication (as 

defined in 11 CFR 100.29(a)). Two 

commenters addressed this proposal, 

one supporting it and one calling for 

modifications to clarify the threshold 

amount for reporting. 

The Commission concludes that 

adopting reporting requirements for 

multistate electioneering 

communications that parallel the 

reporting requirements for multistate 

independent expenditures will lessen 

the chance of confusion among both 

filers and the public, best serving the 

public’s interest in timely disclosure. 

Accordingly, the Commission is adding 

a new paragraph (c)(7) in § 104.20, and 

redesignating current paragraphs (c)(7)– 

(9) as paragraphs (c)(8)–(10). New 

paragraph (c)(7) applies when the 

relevant election, which the reporting 

person must identify under paragraph 

(c)(5), is a presidential primary election 

and the electioneering communication 

is distributed in six or more states but 

does not refer to any particular state’s 

primary election. In such situations, this 

new paragraph parallels the new 

reporting requirements for multistate 

independent expenditures in new 

§ 104.3(b)(3)(vii)(C). New paragraph 

(c)(7) of § 104.20 provides that the 

reporting person must report the 

electioneering communication as a 

single communication and use a memo 

text to indicate the states in which the 

communication constitutes an 

electioneering communication (as 

defined in 11 CFR 100.29(a)). 

Certification of No Effect Pursuant to 5 

U.S.C. 605(b) (Regulatory Flexibility 

Act) 

The Commission certifies that the 

attached rules will not have a significant 

economic impact on a substantial 

number of small entities. The rules 

provide for consolidated reporting of 

certain independent expenditures and 

electioneering communications that the 

Commission’s current reporting 

guidance indicates should be allocated 

among elections in multiple states. The 

Commission anticipates that the 

consolidation of these reports will 

generally result in a modest reduction of 

the administrative burdens on reporting 

entities, and it will not impose any new 


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Federal Register / Vol. 83, No. 247 / Thursday, December 27, 2018 / Rules and Regulations 66595 

reporting obligations. Thus, to the 

extent that any entities affected by these 

proposed rules might fall within the 

definition of ‘‘small businesses’’ or 

‘‘small organizations,’’ the economic 

impact of complying with these rules 

will not be significant. 

List of Subjects 

11 CFR Part 104 

Campaign funds, Political committees 

and parties, Reporting and 

recordkeeping requirements. 

11 CFR Part 109 

Elections, Reporting and 

recordkeeping requirements. 

For the reasons set out in the 

preamble, subchapter A of chapter I of 

title 11 of the Code of Federal 

Regulations is amended as follows: 

PART 104—REPORTS BY POLITICAL 

COMMITTEES AND OTHER PERSONS 

(52 U.S.C. 30104) 

■ 1. The authority citation for part 104 

continues to read as follows: 

Authority: 52 U.S.C. 30101(1), 30101(8), 

30101(9), 30102(i), 30104, 30111(a)(8) and 

(b), 30114, 30116, 36 U.S.C. 510. 

■ 2. In § 104.3: 

■ a. Revise paragraph (b)(3)(vii)(B). 

■ b. Redesignate paragraph (b)(3)(vii)(C) 

as paragraph (b)(3)(vii)(D) and revise 

newly redesignated paragraph 

(b)(3)(vii)(D). 

■ c. Add new paragraph (b)(3)(vii)(C). 

The revision and addition read as 

follows: 

§ 104.3 Contents of Reports (52 U.S.C. 

30104(b), 30114). 

* * * * * 

(b) * * * 

(3) * * * 

(vii) * * * 

(B) For each independent expenditure 

reported, the committee must also 

provide a statement which indicates 

whether such independent expenditure 

is in support of, or in opposition to a 

particular candidate, as well as the 

name of the candidate and the office 

sought by such candidate (including 

State and Congressional district, when 

applicable), and a certification, under 

penalty of perjury, as to whether such 

independent expenditure is made in 

cooperation, consultation or concert 

with, or at the request or suggestion of, 

any candidate or authorized committee 

or agent of such committee; and 

(C) For an independent expenditure 

that is made in support of or opposition 

to a presidential primary candidate and 

is publicly distributed or otherwise 

publicly disseminated in six or more 

states but does not refer to any 

particular state, the political committee 

must report the independent 

expenditure as a single expenditure— 

i.e., without allocating it among states— 

and must indicate the state with the 

next upcoming presidential primary 

among those states where the 

independent expenditure is distributed, 

as specified in § 104.4(f)(2). The 

political committee must use memo text 

to indicate the states in which the 

communication is distributed. 

(D) The information required by 

paragraphs (b)(3)(vii)(A) through (C) of 

this section shall be reported on 

Schedule E as part of a report covering 

the reporting period in which the 

aggregate disbursements for any 

independent expenditure to any person 

exceed $200 per calendar year. 

Schedule E shall also include the total 

of all such expenditures of $200 or less 

made during the reporting period. 

* * * * * 

■ 3. In § 104.4: 

■ a. In paragraph (b), remove ‘‘FEC 

Form 3X’’ everywhere it appears and 

add in its place the words ‘‘the 

applicable FEC Form’’. 

■ b. Revise paragraph (f). 

The revision reads as follows: 

§ 104.4 Independent expenditures by 

political committees (52 U.S.C. 30104(b), (d), 

and (g)). 

* * * * * 

(f) Aggregating independent 

expenditures for reporting purposes. (1) 

For purposes of determining whether 

24-hour and 48-hour reports must be 

filed in accordance with paragraphs (b) 

and (c) of this section and 11 CFR 

109.10(c) and (d), aggregations of 

independent expenditures must be 

calculated as of the first date on which 

a communication that constitutes an 

independent expenditure is publicly 

distributed or otherwise publicly 

disseminated, and as of the date that 

any such communication with respect 

to the same election is subsequently 

publicly distributed or otherwise 

publicly disseminated. Every person 

must include in the aggregate total all 

disbursements during the calendar year 

for independent expenditures, and all 

enforceable contracts, either oral or 

written, obligating funds for 

disbursements during the calendar year 

for independent expenditures, where 

those independent expenditures are 

made with respect to the same election 

for Federal office. 

(2) For purposes of determining 

whether 24-hour or 48-hour reports 

must be filed in accordance with 

paragraphs (b) and (c) of this section 

and 11 CFR 109.10(c) and (d), if the 

independent expenditure is made in 

support of or opposition to a candidate 

in a presidential primary election and is 

publicly distributed or otherwise 

publicly disseminated in six or more 

states but does not refer to any 

particular state, the date of the election 

is the date of the next upcoming 

presidential primary election among the 

presidential primary elections to be held 

in the states in which the independent 

expenditure is publicly distributed or 

disseminated. 

■ 4. In § 104.20: 

■ a. Revise paragraphs (c)(5) and (6). 

■ b. Redesignate paragraphs (c)(7) 

through (9) as paragraphs (c)(8) through 

(10). 

■ c. Add new paragraph (c)(7). 

The revision and addition read as 

follows: 

§ 104.20 Reporting electioneering 

communications (52 U.S.C. 30104 (f)). 

* * * * * 

(c) * * * 

(5) All clearly identified candidates 

referred to in the electioneering 

communication and the elections in 

which they are candidates; and 

(6) The disclosure date, as defined in 

paragraph (a) of this section. 

(7) If the election identified pursuant 

to paragraph (c)(5) of this section is a 

presidential primary election and the 

electioneering communication is 

publicly distributed or otherwise 

disseminated in six or more states but 

does not refer to any particular state, the 

electioneering communication shall be 

reported as a single communication, 

indicating the state with the next 

upcoming presidential primary among 

those states where the electioneering 

communication is distributed, and the 

states in which it constitutes an 

electioneering communication (as 

defined in 11 CFR 100.29(a)) shall be 

indicated in memo text. 

* * * * * 

PART 109—COORDINATED AND 

INDEPENDENT EXPENDITURES (52 

U.S.C. 30101(17), 30116(a) AND (d), 

AND PUB. L. 107–155 SEC. 214(C)) 

■ 5. The authority citation for part 109 

continues to read as follows: 

Authority: 52 U.S.C. 30101(17), 30104(c), 

30111(a)(8), 30116, 30120; Sec. 214(c), Pub. 

L. 107–155, 116 Stat. 81. 

■ 6. Revise § 109.10(e)(1)(iv) to read as 

follows: 

§ 109.10 How do political committees and 

other persons report independent 

expenditures? 

* * * * * 

(e) * * * 


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66596 Federal Register / Vol. 83, No. 247 / Thursday, December 27, 2018 / Rules and Regulations 

1Public 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. 

2Public Law 114–74, sec. 701, 129 Stat. 584, 599. 

3 Inflation Adjustment Act sec. 3(2). 

4 Inflation Adjustment Act sec. 4(a). 

5See Inflation Adjustment Act sec. 7(a) (requiring 

OMB to ‘‘issue guidance to agencies on 

implementing the inflation adjustments required 

under this Act’’); see also Memorandum from Mick 

Mulvaney, Director, Office of Management and 

Budget, to Heads of Executive Departments and 

Agencies, M–19–04 (Dec. 14, 2018), https://

www.whitehouse.gov/wp-content/uploads/2017/11/ 

m_19_04.pdf (‘‘OMB Memorandum’’). 

6 Inflation Adjustment Act sec. 5. 

7 Inflation Adjustment Act sec. 4(b)(2). 

8See, e.g., Asiana Airlines v. FAA, 134 F.3d 393, 

396–99 (DC Cir. 1998) (finding APA ‘‘notice and 

comment’’ requirement not applicable where 

Congress clearly expressed intent to depart from 

normal APA procedures). 

9 Inflation Adjustment Act sec. 6. 

10The COLA ratio must be applied to the most 

recent civil monetary penalties. Inflation 

Adjustment Act, sec. 4(a); see also OMB 

Memorandum at 2. 

11The 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). 

14OMB Memorandum at 1. 

(1) * * * 

(iv) A statement that indicates 

whether such expenditure was in 

support of, or in opposition to a 

candidate, together with the candidate’s 

name and office sought; if the 

expenditure meets the criteria set forth 

in 11 CFR 104.3(b)(3)(vii)(C), memo text 

must be used to indicate the states in 

which the communication is 

distributed, as prescribed in that 

section; 

* * * * * 

On behalf of the Commission. 

Dated: December 18, 2018. 

Caroline C. Hunter, 

Chair, Federal Election Commission. 

[FR Doc. 2018–27800 Filed 12–26–18; 8:45 am] 

BILLING CODE 6715–01–P 

FEDERAL ELECTION COMMISSION 

11 CFR Part 111 

[Notice 2018–18] 

Civil Monetary Penalties Annual 

Inflation Adjustments 

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: The final rules are effective on 

January 1, 2019. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Robert M. Knop, Assistant General 

Counsel, or Mr. Joseph P. Wenzinger, 

Attorney, Office of General Counsel, 

(202) 694–1650 or (800) 424–9530. 

SUPPLEMENTARY INFORMATION: The 

Federal Civil Penalties Inflation 

Adjustment Act of 1990 (the ‘‘Inflation 

Adjustment Act’’),1 as amended by the 

Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 

2015 (the ‘‘2015 Act’’),2 requires federal 

agencies, including the Commission, to 

adjust for inflation the civil monetary 

penalties within their jurisdiction 

according to prescribed formulas. A 

civil monetary penalty is ‘‘any penalty, 

fine, or other sanction’’ that (1) ‘‘is for 

a specific monetary amount’’ or ‘‘has a 

maximum amount’’ under federal law; 

and (2) that a federal agency assesses or 

enforces ‘‘pursuant to an administrative 

proceeding or a civil action’’ in federal 

court.3 Under the Federal Election 

Campaign Act, 52 U.S.C. 30101–45 

(‘‘FECA’’), the Commission may seek 

and assess civil monetary penalties for 

violations of FECA, the Presidential 

Election Campaign Fund Act, 26 U.S.C. 

9001–13, and the Presidential Primary 

Matching Payment Account Act, 26 

U.S.C. 9031–42. 

The Inflation Adjustment Act requires 

federal agencies to adjust their civil 

penalties annually, and the adjustments 

must take effect no later than January 15 

of every year.4 Pursuant to guidance 

issued by the Office of Management and 

Budget,5 the Commission is now 

adjusting its civil monetary penalties for 

2019.6

The Commission must adjust for 

inflation its civil monetary penalties 

‘‘notwithstanding Section 553’’ of the 

Administrative Procedures Act 

(‘‘APA’’).7 Thus, the APA’s notice-andcomment and delayed effective date 

requirements in 5 U.S.C. 553(b)–(d) do 

not apply because Congress has 

specifically exempted agencies from 

these requirements.8

Furthermore, because the inflation 

adjustments made through these final 

rules are required by Congress and 

involve no Commission discretion or 

policy judgments, these rules do not 

need to be submitted to the Speaker of 

the House of Representatives or the 

President of the Senate under the 

Congressional Review Act, 5 U.S.C. 801 

et seq. Moreover, because the APA’s 

notice-and-comment procedures do not 

apply to these final rules, the 

Commission is not required to conduct 

a regulatory flexibility analysis under 5 

U.S.C. 603 or 604. See 5 U.S.C. 601(2), 

604(a). Nor is the Commission required 

to submit these revisions for 

congressional review under FECA. See 5 

U.S.C. 30111(d)(1), (4) (providing for 

congressional review when Commission 

‘‘prescribe[s]’’ a ‘‘rule of law’’). 

The new penalty amounts will apply 

to civil monetary penalties that are 

assessed after the date the increase takes 

effect, even if the associated violation 

predated the increase.9

Explanation and Justification 

The Inflation Adjustment Act requires 

the Commission to annually adjust its 

civil monetary penalties for inflation by 

applying a cost-of-living-adjustment 

(‘‘COLA’’) ratio.10 The COLA ratio is the 

percentage that the Consumer Price 

Index (‘‘CPI’’) 11 ‘‘for the month of 

October preceding the date of the 

adjustment’’ exceeds the CPI for October 

of the previous year.12 To calculate the 

adjusted penalty, the Commission must 

increase the most recent civil monetary 

penalty amount by the COLA ratio.13

According to the Office of Management 

and Budget, the COLA ratio for 2019 is 

0.02522, or 2.522%; thus, to calculate 

the new penalties, the Commission must 

multiply the most recent civil monetary 

penalties in force by 1.02522.14

The Commission assesses two types of 

civil monetary penalties that must be 

adjusted for inflation. First are penalties 

that are either negotiated by the 

Commission or imposed by a court for 

violations of FECA, the Presidential 

Election Campaign Fund Act, or the 

Presidential Primary Matching Payment 

Account Act. These civil monetary 

penalties are set forth at 11 CFR 111.24. 

Second are the civil monetary penalties 

assessed through the Commission’s 

Administrative Fines Program for late 

filing or non-filing of certain reports 

required by FECA. See 52 U.S.C. 

30109(a)(4)(C) (authorizing 

Administrative Fines Program), 30104(a) 

(requiring political committee treasurers 


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