[Federal Register Volume 74, Number 148 (Tuesday, August 4, 2009)]
[Notices]
[Pages 38617-38618]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18542]


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FEDERAL ELECTION COMMISSION

[NOTICE 2009-18]


Agency Procedure for Notice to Respondents in Non-Complaint 
Generated Matters

AGENCY: Federal Election Commission.

ACTION: Agency procedure.

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SUMMARY: The Federal Election Commission (``Commission'') is 
establishing a new agency procedure that will provide respondents in 
certain enforcement matters brought under the Federal Election Campaign 
Act of 1971, as amended (``FECA'') with notice of a non-complaint 
generated referral and an opportunity to respond thereto, prior to the 
Commission's consideration of whether it has reason to believe that a 
violation of the Act has been or is about to be committed by such 
respondent. This program will provide respondents in non-complaint 
generated matters procedural protections similar to those of 
respondents in complaint-generated matters. Further information about 
the procedures for providing notice to respondents in non-complaint 
generated matters is provided in the supplementary information that 
follows.

DATES: Effective August 4, 2009.

FOR FURTHER INFORMATION CONTACT: Mr. Mark Shonkwiler, Assistant General 
Counsel, 999 E Street, NW., Washington, DC 20463, (202) 694-1650 or 
(800) 424-9530.

SUPPLEMENTARY INFORMATION: 

I. Background

    On June 11, 2003, the Commission held a hearing concerning its 
enforcement procedures. The Commission received public comments, many 
of which argued for increased transparency in Commission procedures and 
expanded opportunities to contest allegations. Comments and statements 
for the record are available at: http://www.fec.gov/agenda/agendas2003/notice2003-09/comments.shtml. In response to issues raised at the 
hearing, the Commission issued new agency procedures. See Statement of 
Policy Regarding Deposition Transcripts in Nonpublic Investigations, 68 
FR 50688 (Aug. 22, 2003); Statement of Policy Regarding Treasurers 
Subject to Enforcement Proceedings, 70 FR 3 (Jan. 3, 2005).
    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/enforcement/publichearing011409.shtml.
    The Commission received numerous comments regarding respondents in 
non-complaint generated matters not receiving notice when a matter has 
been referred to the Commission's Office of General Counsel (``OGC'') 
for enforcement. One commenter opined that the Commission should never 
find reason to believe (``RTB'') that a violation occurred without 
first giving the respondent the opportunity to respond. Another 
commenter recommended instituting a program whereby potential 
respondents in non-complaint generated matters are given a written 
summary of the matter and an opportunity to respond in writing before 
the Commission makes an RTB finding, in order to put respondents on 
notice about the potential outcome of the proceeding. Other commenters 
urged the Commission to adopt procedures to notify committees of any 
internal referral, and to implement procedures to provide respondents 
with the opportunity to review and respond to any adverse course of 
action recommended by OGC before the Commission considers such 
recommendation.

II. Procedures for Notice to Respondents in Non-Complaint Generated 
Matters

    The Commission is issuing a new agency procedure to provide 
notification to respondents of enforcement proceedings based on 
information ascertained by the Commission in the normal course of 
carrying out its supervisory responsibilities (i.e., non-complaint 
generated matters). See 2 U.S.C. 437g. In matters generated by 
complaints, the Commission may take no action on the complaint (other 
than dismissal) until respondents have at least 15 days after 
notification of the allegations contained in the complaint to answer 
the allegations. See 2 U.S.C. 437g(a)(1). However, the statute does not 
afford respondents the same opportunity to answer allegations in non-
complaint generated matters. This agency procedure is intended to 
provide respondents in non-complaint generated enforcement matters with 
notice of the basis of the allegations, and an opportunity to respond.
    For matters arising from a referral from the Commission's Reports 
Analysis Division or Audit Division (``internal referrals''), 
respondents will be notified of the referral within five days of 
receipt of the referral by OGC. The notice will contain a copy of the 
referral document and a cover letter setting forth the basis of the 
referral and potential violations of the Act and/or Commission 
regulations that arise based upon the referral. The respondent will 
then be given an opportunity to demonstrate that no action should be 
taken based on the referral, by submitting, within 15 days from receipt 
of the referral document and cover letter, a written explanation of why 
the Commission should take no action. The Commission will not take any 
action, or make any RTB finding against a respondent based on an 
internal referral unless it has considered such response or unless no 
such response has been served upon the Commission within 15 days.
    Under current Commission practice, non-complaint generated matters 
based on referrals from the U.S. Department of Justice or any other law 
enforcement or governmental agency (``external referrals'') are also 
deemed to be matters based on information ascertained in the normal 
course of carrying out its supervisory responsibilities. Under the new 
procedures, if OGC intends to initiate an enforcement proceeding based 
on an external referral, notice of

[[Page 38618]]

the referral will be provided to respondents in the same manner as an 
internal referral. However, where immediate notification to a 
respondent of an external referral is deemed inappropriate, OGC will 
notify the Commission of the referral within 5 days of receipt of the 
referral from the governmental agency. In cases where, due to law 
enforcement purposes, the referral document may not be provided to a 
respondent, OGC will provide the respondent with a letter containing 
sufficient information regarding the facts and allegations to afford 
the respondent an opportunity to demonstrate that no action should be 
taken. Absent exercise of the Commission's discretion (by the 
affirmative vote of four Commissioners), OGC will not proceed with an 
enforcement proceeding based on an external referral until the referral 
or substitute informational letter is provided to the respondent.

III. Conclusion

    This notice establishes agency practices or procedures. 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 Procedures 
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. The above provides general 
guidance concerning notice to respondents in non-complaint generated 
matters and announces the general course of action that the Commission 
intends to follow. This notice sets forth the Commission's intentions 
concerning the exercise of its discretion in its enforcement program. 
However, the Commission retains that discretion and will exercise it as 
appropriate with respect to the facts and circumstances of each matter 
it considers. Consequently, this notice does not bind the Commission or 
any member of the general public.

    On behalf of the Commission.
    Dated: July 29, 2009.
Steven T. Walther,
Chairman, Federal Election Commission.
[FR Doc. E9-18542 Filed 8-3-09; 8:45 am]
BILLING CODE 6715-01-P