AGENDA DOCUMENT NO. 11-65
 

FEDERAL ELECTION COMMISSION 2Gn NOV lOP ij: 01 

Washington, DC 20463 

AGENDA ITEM 

For Meeting of 1l.:.l..1.::..n 

MEMORANDUM 


 TO:	 The Commission ))~

FROM:	 Steven T. Walthe\~~ Commissioner ~~

DATE:	 November 10,2011 

SUBJECT:	 Agency Procedure for Notice to Named Respondents 

in Enforcement Matters of Additional material Facts and/or 

Additional Potential Violations 

I request that the attached draft Agency Procedure for Notice to Named Respondents in 

Enforcement Matters of Additional material Facts and/or Additional Potential Violations 

be placed on the agenda for the November 17,2011 Open Session. 

Attachment 
6715-01-P 

FEDERAL ELECTION COMMISSION 

[NOTICE 20ll-XX] 

Agency Procedure for Notice to
 

Named Respondents in Enforcement Matters of
 

Additional Material Facts and/or Additional Potential Violations
 

AGENCY: Federal Election Commission. 

ACTION: Agency Procedure. 

SUMMARY: The Federal Election Commission ("Commission" or "FEC") is 

establishing an agency procedure that will provide a respondent in 

certain complaint-generated and non-complaint generated 

enforcement matters brought under the Federal Election Campaign 

Act of 1971, as amended ("FECA" or the "Act") with (1) notice of 

additional material facts and/or additional potential violations not 

contained in the complaint or referral notification and (2) an 

opportunity to respond thereto, prior to the Commission's 

consideration of whether it has reason to believe ("RTB") that a 

violation of the Act and/or the Commission's regulations (the 

"Regulations") has been or is about to be committed by the 

respondent. 

DATES: Effective upon publication in the FEDERAL REGISTER. 

FOR FURTHER 

INFORMATION 

CONTACT: Mark Shonkwiler, Assistant General Counsel, 999 E Street, NW, 

Washington, DC 20463, (202) 694-1650 or (800) 424-9530. 
SUPPLEMENTARY 

INFORMATION: 

I. Background 

On December 8, 2008, the Commission issued a notice of public hearing 

and request for public comment on all aspects of its agency procedures. Agency 

Procedures, 73 FR 74495 (Dec. 8, 2008). The purpose for the notice and ensuing 

proceeding was to obtain from all sources information on how the Commission 

might improve its efficiency, fairness and transparency in all aspects of its 

procedures. These procedures include the formal enforcement process, the 

referral of potential enforcement matters internally within the Commission or 

from a law enforcement or governmental agency, and the issuance of advisory 

opinions. The Commission received written comments and on January 14-15, 

2009, the Commission conducted open hearings and received oral testimony.] 

Since the January 2009 public hearing, the Commission has formally 

adopted twelve agency procedures, policies, directives and guidance designed to 

improve the Commission's efficiency, fairness and transparency as follows: 2 

•	 Advisory Opinion Procedures, 74 FR 32160 (July 7,2009) 

•	 Procedural Rules for Audit Hearings, 74 FR 33140 (July 10, 2009); 

•	 Agency Procedure for Notice to Respondents in Non-Complaint 

Generated Matters, 74 FR 38617 (Aug. 4, 2009) 

•	 Amendment of Agency Procedures for Probable Cause Hearings, 

74 FR 55443 (Oct. 28, 2009) 

•	 Statement of Policy Regarding Placing First General Counsel 

Reports on the Public Record, 74 FR 66132 (Dec. 14, 2009) 

•	 Guidebook for Complainants and Respondents on the FEC 

Enforcement Process (Dec. 17,2009) (available at 

www.fec.gov/em/respondent guide.pdt) 

•	 FEC Directive 68, Enforcement Procedures (Dec. 31, 2009) 

(available at www.fec.gov/directives/directive_68.pdf) 

•	 FEC Directive 69, FEC Directive on Legal Guidance to the Office 

of Compliance (July 1,2010) (available at 

www.fec.gov/directives/directive 69.pdD 

•	 FEC Directive 70, FEC Directive on Processing Audit Reports 

(Apr. 26, 2011) (available at www.fec.gov/directives/directive 

_70.pdf) 

•	 Agency Procedure for Disclosure of Documents and Information in 

the Enforcement Process, 76 FR 34986 (June 15,2011) 

1 The comments received by the Commission, as well as the transcript of the hearing are available at: 

http://www.fec. gov/law/policy/enforcement/publichearingO 11409.shtml. 

2 Unless noted otherwise, these agency procedures and policies are available on the Commission's website 

at www.fec.gov/law/policy.shtml. 

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•	 Policy Statement Regarding a Program for Requesting 

Consideration of Legal Questions by the Commission, 76 FR 

45798 (Aug. 1,2011) 

•	 Agency Procedure Following the Submission of Probable Cause 

Briefs by the Office of General Counsel, 76 FR 63570 (Oct. 13, 

2011 ). 

This agency procedure is the most recent addition to the series of agency 

procedures, policies, directives and guidance mentioned above. 

Most of the Commission's enforcement matters begin with the filing ofa 

complaint. Under section 437g ofFECA, 2 U.S.C. 437g, and part III of the 

Regulations, 11 CFR part Ill, any person who believes that a violation of any 

statute or regulation over which the Commission has jurisdiction has occurred, or 

is about to occur, may file a complaint with the Commission. 2 U.S.C. 

437g(a)(l); 11 CFR lIlA. Upon receipt of the complaint, the Office of General 

Counsel ("OGC") reviews the complaint and notifies each respondent named in 

the complaint that the complaint has been filed, and concurrently provides each 

respondent with a copy of the complaint. 2 U.s.c. 437g(a)(l); 11 CFR 111.5. 

Each respondent may within 15 days from receipt of the complaint to demonstrate 

why the Commission should not take action based on the complaint. 2 U.S.C. 

437g(a)(l); 11 CFR 111.6. After the expiration of the 15 day period, or receipt of 

a response from the respondent, whichever occurs first, the aGC makes a 

recommendation to the Commission as to whether the Commission should find 

RTB that the respondent has committed or is about to commit a violation. 

2 U.S.C. 437g(a)(l); 11 CFR 111.6(b). Any supplement to a complaint is subject 

to the same procedures as those applicable to the original complaint. 

Respondents in non-complaint generated matters - typically matters 

arising out of a referral to the aGC from the Commission's Reports Analysis 

Division, the Commission's Audit Division, or from a law enforcement or 

governmental agency - are provided procedures similar to those provided to 

respondents in complaint-generated matters. 3 Respondents in non-complaint 

generated matters are (a) notified in writing by the aGC of the referral to it 

("referral notification"), (b) provided with a copy of the referral document (~,

the referral to the aGC from the Commission's Reports Analysis Division or 

Audit Division), and (c) informed of the basis of the referral and potential 

violations of the Act and/or the Regulations. Each respondent may within 15 days 

from receipt of the referral notification file a response with the Commission 

demonstrating why the Commission should not take any action based on the 

referral. After the expiration of the 15 day period, or receipt of a response from 

the respondent, whichever occurs first, the OGC makes a recommendation to the 

Commission as to whether the Commission should find RTB that the respondent 

has committed or is about to commit a violation of the Act and/or the Regulations. 

3 See Agency Procedure for Notice to Respondents in Non-Complaint Generated Matters, 74 FR 38617 

(August 4, 2009). 

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In both complaint-generated and non-complaint generated matters, called 

within the FEC Matters Under Review ("MURs"), and prior to the aGC 

recommendation as to whether to find or not find RTB, the aGC may come into 

possession of facts that may be material to the issue of RTB; likewise, during that 

period, the aGC may determine to make a recommendation to the Commission, 

based on the facts before it, that a violation may have occurred that was not 

mentioned specifically in the complaint or in the referral notification. Under such 

circumstances, under the policy stated herein, the respondent is afforded an 

opportunity to address such issues before any RTB recommendation is made. 

II.	 Agency Procedure for Notice to Respondents of Additional Material Facts or 

Potential Violations 

This new agency procedure is as follows: 

A.	 A respondent will be given written notice by the aGC in the event that 

the aGC intends to include in its RTB recommendation to the 

Commission (1) any additional facts or information known to aGC 

and not created or controlled by the respondent, which are deemed 

material to the RTB recommendation, and (2) any potential violation 

of the Act and/or the Regulations that may not have been specifically 

alleged in the complaint/referral notification, and the facts and 

arguments supporting the potential RTB recommendation on the 

additional potential violation. 

B.	 The written notice from the aGC will contain the following: 

1.	 If the aGC intends to include in its RTB recommendation 

additional facts arising out of an existing MUR that were not 

contained in the complaint/referral notification or in the 

response to the complaint/referral notification, and not created 

by or controlled by the respondent, the notice will include a 

recitation of such additional material facts and the source or 

sources of those facts, unless the Commission determines that 

good cause exists for withholding such source or sources, 

including, without limitation, that disclosure would violate a 

provision of the Act; and 

2.	 If the aGC intends to include in its RTB recommendation one 

or more additional potential violations of the Act and/or the 

Regulations that were not specifically alleged in the 

complaint/referral notification, the notice will identify each 

such potential additional violation that the respondent may 

have committed, along with a recitation of the material facts 

upon which the aGC intends to rely in making its RTB 

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recommendation to the Commission, and the source or sources 

of those facts, unless the Commission detennines that good 

cause exists for withholding such source or sources including, 

without limitation, that disclosure would violate a provision of 

the Act. 

C.	 Within 10 days from receipt of the OGC notice, the respondent may 

submit a written statement demonstrating why the Commission should 

take no action based on the additional material facts or with regard to 

any additional potential violation. Additionally, with respect to any 

additional potential violation, the respondent may address whether it 

believes the Commission should consider the additional potential 

violation as part of the existing MUR or whether the Commission 

should sever the additional potential violation and consider it in the 

context of a new and separate MUR. 

D.	 Written statements should be directed to the Office of General 

Counsel, Federal Election Commission, 999 E Street, NW, 

Washington, DC 20463. Written statements may be made part of the 

public record. See Statement of Policy Regarding Disclosure of 

Closed Enforcement and Related Files, 68 FR 70426 (Dec. 18, 2003). 

E.	 The Commission will not make any RTB finding against a respondent 

based on the additional material facts, or with regard to any additional 

potential violation, until the Commission has considered the response 

or unless no such response has been received by the Commission 

within 10 days of the respondent having received the OGC notice. 

F.	 In the event that any material facts, or any potential violation ofthe 

Act and/or the Regulations, was not disclosed to a respondent, and the 

respondent was not given the opportunity to respond to such facts or 

potential violation, prior to the Commission making an RTB finding, 

the respondent may, within 10 days from receipt of notice that the 

Commission has made an RTB finding, file a request for 

reconsideration of the RTB finding. Where necessary, the 

Commission reserves the right to request from a respondent an 

agreement tolling any deadline, including any statutory or other 

deadline in 1I CFR part 111, as a condition of granting a request for 

reconsideration. 

G.	 Requests for reconsideration should be directed to the Commission 

Secretary, Federal Election Commission, 999 E Street, NW, 

Washington, DC 20463. Requests for reconsideration may be made 

part of the public record. See Statement of Policy Regarding 

Disclosure of Closed Enforcement and Related Files, 68 FR 70426 

(Dec. 18,2003). 

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H.	 A request for reconsideration should, with as much specificity as 

possible, identify, describe, and discuss or respond to: 

1.	 Each material fact not contained in the complaint/referral 

notification, or in the response to the complaint/referral 

notification, and not created by or controlled by the respondent, 

but which was before the Commission for consideration in 

making its RTB finding; and/or 

2.	 Each potential violation of the Act or the Regulations not 

specifically identified in the complaint/referral notification, but 

which was included in the RTB finding. 

1.	 Reconsideration of an RTB finding may be granted upon approval by 

four of more Commissioners of a determination that the original RTB 

finding was based on (a) material facts or (b) potential violations that 

were not presented or alleged in the complaint/referral notification, 

and to which the respondent did not have notice and an opportunity to 

respond. Grant of a request for reconsideration is within the sole 

discretion of the Commission. 

J.	 The Commission will, within 10 days of receiving the respondent's 

request for reconsideration, notify the respondent in writing as to 

whether the Commission has granted a respondent's request for 

reconsideration. Ifthe Commission has not granted reconsideration 

within 10 days of receiving a request for reconsideration, the request 

shall be deemed automatically denied and the Commission's finding of 

RTB shall stand. 

K.	 If the Commission grants reconsideration, the respondent shall be 

provided 10 days from receipt of written notification from the 

Commission of the grant of reconsideration to respond to each material 

fact or potential violation that was not presented or alleged in the 

complaint/the referral notification. After the expiration of the 10 day 

period, or receipt of a response from the respondent, whichever occurs 

first, the aGC shall, within 10 days, make a recommendation to the 

Commission as to whether the Commission should revise its RTB 

finding. 

L.	 The Commission's prior vote adopting the RTB finding shall stand 

unless, within 10 days from receipt of the aGC recommendation, four 

ofmore Commissioners vote to modify, amend, or set aside the RTB 

finding. 

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III. Conclusion 

Failure to adhere to this procedure does not create a jurisdictional bar for the 

Commission to pursue all remedies to correct or prevent a violation of the Act or the 

Regulations. 

This notice establishes agency practices or procedures. This procedure sets forth 

the Commission's intentions concerning the exercise of its discretion in its enforcement 

program. However, the Commission retains that sole discretion and mayor may not, as 

appropriate, exercise it with respect to the facts and circumstances of each enforcement 

matter it considers, with or without notice. Consequently, this procedure does not bind 

the Commission or any member of the general public, nor does it create any rights for 

respondents or third parties. As such, this notice does not constitute an agency regulation 

requiring notice of proposed rulemaking, opportunities for public participation, prior 

publication, and delay of effective date under 5 U.S.C. 553 of the Administrative 

Procedure Act ("APA"). The provisions of the Regulatory Flexibility Act, 5 U.S.C. 

605(b), which apply when notice and comment are required by the APA or another 

statute, are not applicable. 

On behalf of the Commission, 

Cynthia L. Bauerly 

Chair 

Federal Election Commission 

DATED _ 

BILLING CODE: 6715-01-P 

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