AGENDA DOCUMENT NO. 09-47
 

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FEDERAL ELECTION COMMISSION COMHISSlm4

SECRETARIAT Washington, DC 20463 

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MEMORANDUM AGENO"A ITEM 

TO:	 The Commission For Meeting of: 0 '} -/fa -:-tJ t[ 

FROM:	 Steven T. WalthettW 

Chainnan )'J , SUBlf,rrED LATE 

DATE: July 15, 2009 

RE: Agency Procedure for Notice to Potential Respondents in Enforcement Matters 

Attached is a proposed agency procedure for notice to potential respondents in 

enforcement matters. 

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

Attachment 
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AGENCY: 

ACTION: 

SUMMARY: 

DATES: 

FOR FURTHER 

INFORMATION 

CONTACT: 

FEDERAL ELECTION COMMISSION 

[NOTICE 2009-XX] 

Agency Procedure for Notice to Potential Respondents 

in Enforcement Matters 

Federal Election Commission 

Notice of Agency Procedure 

The Federal Election Commission ("Commission") is establishing 

a new rule of agency procedure that will provide potential 

respondents in certain complaint-generated enforcement matters 

brought under the Federal Election Campaign Act of 1971, as 

amended ("FECA" or the "Act") with notice of allegations and an 

opportunity to respond thereto, prior to the Commission's 

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

violation of the Act has been or is about to be committed by such 

respondents. Specifically, for complaint-generated matters this 

policy will provide persons who have not been specifically named 

in a complaint, but about whom the Commission's Office of 

General Counsel ("OGC") has ascertained information that the 

person may have violated the Act, with notice and an opportunity 

to respond prior to the OGC making a recommendation that the 

Commission find RTB that a violation has taken place. 

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

Register]. 

, 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 FR 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/policy/enforcementipublichearingOll409.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 

named respondents of additional material facts or additional potential violations, 

are among the most recent in a series of new 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 named respondents of additional material facts or 

additional potential violations in that this procedure applies to persons who are 

not yet respondents in a complaint-generated matter pursuant to section 437g of 

FECA, whereas the new procedure for notice to named respondents of additional 

material facts or additional potential violations applies to persons who are, and 

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

matter. 

Under section 437g ofFECA, 2 U.S.C. 437g, and part III 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 ofthe 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)(1); 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 

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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). 

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

the aGC will on occasion determine, based on the facts alleged in the complaint 

or from facts the aGC otherwise ascertains, that a person who has not been 

specifically identified in a complaint may nevertheless have committed a violation 

of a statute or regulation over which the Commission has jurisdiction. 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 that a person who has 

not been specifically identified in the complaint may nevertheless have committed 

a violation. The Commission's current procedures do not formally include a 

procedure by which the Commission would notify these potential new 

respondents to provide them with an opportunity to respond prior to the aGC 

making its RTB recommendation to the Commission. 

II.	 Agency Procedure for Potential Respondents Who Have Not Been Named in 

a Complaint 

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

aGC will on occasion acquire additional information, in the course of developing 

its RTB recommendation to the Commission, that a person who has not been 

specifically identified in a complaint may nevertheless have committed a 

violation. The aGC may also acquire such additional information, regarding a 

person who has not been specifically identified in a complaint, in the course of a 

formal investigation commenced after the Commission has found RTB against 

one or more respondents who were named in the complaint. 

The Commission is issuing a new agency procedure to provide any person 

who is not identified in a complaint, but who may be added as a respondent in a 

complaint-generated matter, with written notification and an opportunity to 

respond to the alleged violations. Accordingly, this agency procedure will 

provide potential respondents in complaint-generated matters who were not 

identified in a complaint with notice of the basis of allegations and an opportunity 

to respond, essentially the same as the notice provided to respondents who have 

been named in the complaint. 

The Commission is hereby formalizing a procedure that the Commission 

has been following for approximately two years. 

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This new agency procedure provides as follows: 

A.	 Any potential respondent who has not been named in a complaint, and 

who therefore has not been provided with a copy of the complaintI or 

with an opportunity to respond, shall be notified by the aGC that the 

aGC is considering recommending that the Commission find RTB 

that the potential respondent may have committed a violation. 

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

following: 

1.	 An explanation of the Commission's enforcement process; 

2.	 A description of the potential violation or violations based 

upon the facts available to the aGC; and 

3.	 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.	 The potential respondent shall then be given an opportunity to 

demonstrate that no action should be taken by submitting, within 15 

days from receipt of the aGC notice, a written explanation of why the 

Commission should take no action. 

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

potential respondent 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 a new 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 C"APA"). The provisions of 

1 Absent written consent from the respondents named in a complaint, the Commission is prohibited from 

sending the potential respondent a copy of the complaint itself. See 2 U.S.C. 437g(a)(l2)(A); II CFR 

11!.2!. 

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

comment are required by the AP A or another statute, are not applicable. 

Steven T. Walther 

Chairman 

Federal Election Commission 

DATED _ 

BILLING CODE: 6715-01-P 

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