[Federal Register Volume 76, Number 198 (Thursday, October 13, 2011)]
[Proposed Rules]
[Pages 63570-63571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26415]



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FEDERAL ELECTION COMMISSION

11 CFR Part 111

[Notice 2011-15]


Agency Procedure Following the Submission of Probable Cause 
Briefs by the Office of General Counsel

AGENCY: Federal Election Commission.

ACTION: Notice of agency procedure.

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SUMMARY: The Federal Election Commission is establishing an agency 
procedure to formalize the agency's practice in the latter stages of 
Probable Cause process in enforcement matters brought under the Federal 
Election Campaign Act of 1971, as amended (FECA).

DATES: Effective October 28, 2011.

FOR FURTHER INFORMATION CONTACT: Kathleen Guith, Acting Associate 
General Counsel, or Joshua Smith, Attorney, 999 E Street, NW., 
Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION:

I. Background

    The Federal Election Commission (Commission) is establishing an 
agency procedure to formalize the agency's practice in the latter 
stages of the Probable Cause process when, pursuant to 11 CFR 111.16(d) 
of the Commission's regulations, the Office of General Counsel (OGC) 
advises the Commission in writing as to whether or not it intends to 
proceed with a Probable Cause recommendation.
    In matters that proceed beyond the stage in which the Commission 
has determined there is reason to believe that a violation has occurred 
or is about to occur, and after the completion of any investigation, 
both the FECA, 2 U.S.C. 437g(a)(3), and the Commission's regulations, 
11 CFR 111.16(a), require OGC to make a recommendation to the 
Commission on whether or not to find probable cause to believe that a 
violation has occurred or is about to occur.
    When OGC makes its recommendation on whether or not the Commission 
should find probable cause, such recommendation is accompanied by a 
brief (Probable Cause Brief) supporting the recommendation. A copy of 
the Probable Cause Brief is provided to each respondent. 11 CFR 
111.16(b). The Probable Cause Brief must comport with the disclosure 
procedures adopted by the Commission on June 2, 2011. See Agency 
Procedure for Disclosure of Documents and Information in the 
Enforcement Process, 76 FR 34986 (June 15, 2011).
    Once the Probable Cause Brief is received by a respondent, the 
respondent has the opportunity to file, within 15 days, a brief (Reply 
Brief) responding to the Probable Cause Brief. 11 CFR 111.16(c). 
Additionally, pursuant to a procedural rule adopted by the Commission 
in 2007, a respondent may, as part of the Reply Brief, request a 
probable cause hearing (Probable Cause Hearing) before the Commission. 
See Procedural Rules for Probable Cause Hearings, 72 FR 64919 (Nov. 19, 
2007). The Commission will grant a request for a Probable Cause Hearing 
if any two Commissioners agree that a hearing would help resolve 
significant or novel legal issues, or significant questions about the 
application of the law to the facts.
    Following the filing of the Reply Brief and the Probable Cause 
Hearing, if there is one, OGC must, pursuant to 11 CFR 111.16(d), then 
advise the Commission, by a written notice (OGC Notice), as to whether 
OGC intends to proceed with its recommendation or to withdraw the 
recommendation from Commission consideration.
    The Commission hereby adopts the following procedures with respect 
to the following issues: (a) Whether or not OGC must provide a copy of 
the OGC Notice to the respondent and (b) if the OGC Notice contains any 
new argument, statement, or facts, or contains new replies to all or 
any of the arguments contained in the Reply Brief, and, if a Probable 
Cause Hearing was conducted, those occurring at the hearing, whether 
the respondent should have an opportunity to reply.

II. Procedure Following the Submission of Probable Cause Briefs by the 
Office of General Counsel

    1. The OGC Notice provided to the Commission by OGC following the 
Reply Brief (or if there was a Probable Cause Hearing, following the 
hearing), see 11 CFR 111.16(d), shall contemporaneously be provided to 
the respondent.
    2. The OGC Notice may include information that replies to, or 
argues facts or law in response to, the respondent's Reply Brief, or 
arising out of the Probable Cause Hearing, if any.
    3. If the OGC Notice contains new facts or new legal arguments 
raised by OGC and not contained in the Probable Cause Brief, or raised 
at the Probable Cause Hearing, if any, the respondent may submit a 
written request to address the new points raised by OGC. Any such 
written request must specify the new points that the respondent seeks 
to address and must be submitted to the Secretary of the Commission 
within five business days of the respondent's receipt of the OGC 
Notice.
    4. Within five business days of receipt of a written request from a 
respondent, the Commission may, in its sole discretion, exercised by 
four affirmative votes, allow the respondent to address in writing the 
new points raised by the OGC Notice. If the Commission approves the 
request, the Commission shall provide the respondent with a date by 
which the Supplemental Reply Brief must be filed, which shall in no 
event exceed 10 calendar days from notification to the respondent of 
the Commission's approval. Where necessary, the Commission reserves the 
right to request from a Respondent an agreement tolling any deadline, 
including any statutory or other deadline found in 11 CFR part 111. Any 
request that is not approved by the Commission within five business 
days of the Commission's receipt of the request shall be deemed denied 
without further action by the Commission.
    5. All requests and Supplemental Reply Briefs should be directed to 
the Commission Secretary via e-mail ([email protected]) or fax (202-
208-3333). Upon receipt of a request, the Commission Secretary shall 
forward the request or brief to each Commissioner and the General 
Counsel. Absent good cause, to be determined at the sole discretion of 
the Commission, exercised by four affirmative votes, late requests will 
not be accepted.

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.
    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 may or may not exercise it 
as appropriate 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

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

    Dated: October 6, 2011.

    On behalf of the Commission.
Cynthia L. Bauerly,
Chair, Federal Election Commission.
[FR Doc. 2011-26415 Filed 10-12-11; 8:45 am]
BILLING CODE 6715-01-P