AGENDA DOCUMENT NO. 09-46 .~~_ c:iv L~

, ,_u~i~AL ELECT!G .. COMMISSION 

S~CRETARIAT FEDERAL ELECTION COMMISSION
 

Washington, DC 20463
 ZOOq JUL I5 P 5: 34 

MEMORANDUM AGENO-A ITEM 

For Meeting of: 0 1 -I (p~Q!l. TO: The Commission 

FROM: Steven T. Walt~yvl

Chainnan \( SUBMITTED LATE 

DATE: July 15, 2009 

RE: Agency Procedure for Notice to Named Respondents of Additional Material Facts 

or Additional Potential Violations 

Attached is a proposed agency procedure for notice to named respondents of additional 

material facts or additional potential violations. 

I have asked to place this draft on the agenda for July 16,2009. 

Attachment 
FEDERAL ELECTION COMMISSION 

[NOTICE 2009-XX] 

Agency Procedure for Notice to Named Respondents of Additional
 

Material Facts or Additional Potential Violations
 

AGENCY: Federal Election Commission 

ACTION: Notice of Agency Procedure 

SUMMARY: The Federal Election Commission ("Commission") is establishing 

a new agency procedure that will provide respondents in certain 

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 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 has been or is about to be committed by such 

respondents. This policy will provide respondents who have been 

named in a complaint with notice and an additional opportunity to 

respond when the Commission's Office of General Counsel 

("OGC") otherwise intends to recommend an RTB finding based 

on information that was not included in the complaint. 

DATES: Effective [15 days from the date of publication in the Federal 

Register]. 

FOR FURTHER 

INFORMATION 

CONTACT: , Assistant General Counsel, or -----­ -----­ Attorney, 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 the compliance and enforcement aspects of its 

agency procedures. Agency Procedures (Notice of public hearing and request for 

public comments), 73 Fed. Reg. 74495 (Dec. 8,2008). On January 14-15,2009, 

the Commission received comment and testimony. The comments received by 

the Commission, as well as the transcript of the hearing are available at: 

http://www.fec.gov/law/policylenforcement/publichearingOl1409.shtml. 

Comments and testimony received in this proceeding urged the Commission to 

provide further transparency, fairness and efficiency in Commission procedures 

and additional opportunities to contest allegations. 

This new agency procedure, along with a new procedure for notice to 

potential respondents in enforcement matters, are among the most recent in a 

series ofnew agency procedures that have been recently adopted by the 

Commission in response to the received comments and testimony. See Advisory 

Opinion Procedures, 74 FR 32160 (July 7,2009); Procedural Rules for Audit 

Hearings, 74 FR 33140 (July 10, 2009); Procedural Rule for Notice to 

Respondents in Non-Complaint Generated Matters, 74 FR __ (July X, 2009). 

This new agency procedure differs from the new procedure for notice to potential 

respondents in enforcement matters in that this procedure applies to persons who 

are, and have already been notified as, respondents in a complaint-generated 

enforcement matter pursuant to section 437g ofFECA, whereas the new 

procedure for notice to potential respondents in enforcement matters applies to 

persons who are not yet respondents in a complaint-generated matter. 

Under section 437g ofFECA, 2 U.S.C. 437g, and part 111 of the 

Commission's regulations, 11 CFR part 111, 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)(1); 11 CFR 111.4. Upon receipt of the complaint, the OGC 

reviews the complaint and notifies each respondent named in the complaint that 

the complaint has been filed. 2 U.S.C. 437g(a)(1); 11 CFR 111.5. The OGC 

notification also provides the respondent with a copy of the complaint. 11 CFR 

111.5(b). The respondent is then provided with 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. Only after the expiration of 

this 15 day period, or receipt of a response from the respondent, whichever occurs 

first, may the OGC make a recommendation to the Commission that it should find 

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

2 U.S.c. 437g(a)(1); 11 CFR 111.6(b). 

2 
In the course of developing its RTB recommendation to the Commission, 

the aGC will on occasion determine (I) that additional material facts, not 

presented in the complaint or addressed in the response to the complaint, exist that 

support the allegations contained in a complaint or (2) that additional potential 

violations of a statute or regulation over which the Commission has jurisdiction 

may have occurred even though the violations, or the legal basis for such 

violations, have not been specifically stated in the complaint. Similarly, in the 

course of an investigation after the Commission has made an RTB finding based 

on a complaint, the aGC will on occasion determine (l) that one or more 

additional violations may have occurred or (2) that the violation or violations 

alleged in the complaint may have involved knowing and willful illegal activities 

on the part ofthe respondent. The Commission's current procedure do not 

formally include a procedures by which the Commission would notify 

respondents of additional material facts, or of additional potential violations, to 

provide them with an opportunity to respond prior to the aGC making an RTB 

recommendation to the Commission. 

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

Potential Violations 

As stated above, after a complaint has been filed with the Commission, in 

the course of developing its recommendations to the Commission, the aGC will 

on occasion (1) acquire information regarding additional material facts that 

support or dispute the allegations contained in a complaint or (2) determine that 

one or more additional potential violations may have occurred even though the 

violation or violations have not been specifically identified in the complaint. The 

aGC may also, in the course of a formal investigation commenced after the 

Commission has found RTB based on the allegations contained in the complaint, 

determine that one or more additional potential violations may have occurred or 

that the violations alleged in the complaint may have involved knowing and 

willful illegal activities on the part of the respondent. 

The Commission is issuing a new agency procedure to provide 

respondents with written notification and an opportunity to respond to additional 

material facts and additional potential violations of law. Accordingly, this agency 

procedure will provide respondents in complaint-generated matters with 

essentially the same notice and opportunity to respond to all additional material 

facts, and all additional potential violations, as that provided to respondents with 

regard to material facts and allegations that are specifically included in a 

complaint. 

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This new agency procedure provides as follows: 

A.	 A respondent shall be notified by the aGC in the event that the aGC 

intends to include in its RTB recommendation to the Commission (1) 

any material facts that were not contained in a complaint or (2) any 

potential violation or violations that have not been alleged in a 

complaint. 

B.	 The notice from the aGC will be in writing and shall contain the 

following: 

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

the Commission additional material facts that were not 

contained in a complaint, the notice shall include a recitation of 

the additional material facts available to the aGC and the 

source or sources of those facts, unless the Commission 

determines that good cause exists for withholding such source 

or sources; and 

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

the Commission, one or more additional potential violations 

that were not alleged in a complaint, the notice shall include a 

description of such additional violation or violations that the 

respondent may have committed, along with a recitation of the 

material facts available to the aGC upon which the aGC 

intends to rely in making its RTB recommendation to the 

Commission, and the source or sources of those facts, unless 

the Commission determines that good cause exists for 

withholding such source or sources. 

C.	 Within 15 days from receipt of the aGC notice, the respondent may 

submit a written explanation of why the Commission should take no 

action based on the additional material facts or with regard to the 

additional potential violation or violations. 

D.	 The Commission shall not make any RTB finding against a respondent 

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

potential violation or violations unless it has considered the response 

or unless no such response has been received by the Commission 

within 15 days. 

III. Conclusion 

This notice establishes an agency practice or procedure. This notice does 

not constitute an agency regulation requiring notice of proposed rulemaking, 

opportunities for public participation, prior publication, and delay effective under 

5 U.S.C. 553 of the Administrative Procedure Act ("APA"). The provisions of 

4
 
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the Regulatory Flexibility Act,S U.S.c. 605(b), which apply when notice and comment 

are required by the APA or another statute, are not applicable. 

Steven T. Walther 

Chairman 

Federal Election Commission 

DATED 

BILLING CODE: 67l5-01-P 

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