[Federal Register Volume 88, Number 92 (Friday, May 12, 2023)]
[Notices]
[Pages 30741-30742]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10111]


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FEDERAL ELECTION COMMISSION

[Notice 2023-07]


Reports Analysis Division Legal Question Resolution Program

AGENCY: Federal Election Commission.

ACTION: Agency procedure.

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SUMMARY: The Federal Election Commission (``Commission'') adopted a 
program in 2011, which was last revised in 2019, providing for a means 
by which persons may have a legal question considered by the Commission 
earlier in both the report review process and the audit process. 
Because the Commission is separately adopting a new audit process, it 
is revising the policy for the legal question program to narrow its 
scope to encompass only legal questions arising from requests for 
corrective action made by the Commission's Reports Analysis Division.

FOR FURTHER INFORMATION CONTACT: Jessica Selinkoff, Assistant General 
Counsel, Policy Division, or Joshua Blume, Attorney, 1050 First Street 
NE, Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: On August 1, 2011, the Commission adopted a 
program providing for a means by which persons may have a legal 
question considered by the Commission earlier in both the report review 
process and the audit process (``Legal Question Resolution 
Program'').\1\ Because the Commission is separately adopting a new 
audit process for committees that do not receive public funds, 
effective June 1, 2024, for audits that begin after that date, the 
Commission will be terminating the Legal Question Resolution Program 
for legal questions arising in the course of audits. The Legal Question 
Resolution Program will remain in full effect with respect to audits 
commenced before June 1, 2024. At the conclusion of the last audit to 
be commenced before June 1, 2024, the Legal Question Resolution Program 
will no longer apply for any purpose. The program announced here and 
set forth below (``RAD Legal Question Resolution Program'') will take 
effect on June 1, 2024, and will apply only to legal questions arising 
from the Reports Analysis Division's (``RAD'') review process.\2\
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    \1\ 76 FR 45798 (Aug. 1, 2011). The Commission has revised the 
program three times since 2011, as explained in the last revision. 
See Policy Statement Regarding a Program for Requesting 
Consideration of Legal Questions by the Commission, 84 FR 36602 
(July 29, 2019).
    \2\ This superseding RAD Legal Request Program will not be 
available in the course of audits of committees that receive public 
funding. Audits of such committees are governed by extensive 
regulations set forth in 11 CFR, subchapters E and F that, in the 
Commission's judgment, provide sufficient opportunity to present 
legal questions to the Commission.
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I. Procedures

    Within 15 business days of a determination by RAD that a person 
remains obligated to take corrective action to resolve an issue that 
has arisen during the report review process, the person may seek 
Commission consideration if a material dispute on a question of law 
exists with respect to the recommended corrective action.\3\ A 
``determination'' for purposes of triggering the 15 business days is 
the notification to the person of legal guidance prepared by the Office 
of General Counsel (``OGC'') at the request of RAD recommending the 
corrective action.
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    \3\ Many disputes involving corrective action requests hinge on 
questions of fact rather than questions of law, and thus are not 
appropriate for this procedure.
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    Any request for consideration by a person during the report review 
process shall be limited to questions of law on material issues, when: 
(1) the legal issue is novel, complex, or pertains to an unsettled 
question of law; (2) there has been intervening legislation, 
rulemaking, or litigation since the Commission last considered the 
issue; or (3) the request to take corrective action is contrary to or 
otherwise inconsistent with prior Commission matters dealing with the 
same issue. The request must specify the question of law at issue and 
why it is subject to Commission consideration. It should discuss, when 
appropriate, prior Commission matters raising the same issue, relevant 
court decisions, and any other analysis of the issue that may assist 
the Commission in its decision making. The Commission will not consider 
factual disputes under this procedure, and any requests for 
consideration other than on questions of law on material issues will 
not be granted.
    All requests, including any extension requests, must be received by 
the Commission within 15 business days of the determination of 
corrective action. All requests must be directed to the attention of 
the Commission Secretary via email at [email protected].\4\ 
Upon receipt of a request, the Commission Secretary shall forward a 
copy of any request to each Commissioner, the General Counsel, and the 
Staff Director.
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    \4\ Requestors are advised that if they submit a request, 
electronically or otherwise, to a different address than designated 
in this Procedure, the processing of the request may be delayed.
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    Any request for an extension of time to file a RAD Legal Question 
Resolution Program request will be considered on a case-by-case basis 
and will only be granted if good cause is shown, and the Commission 
approves the extension request by four or more affirmative votes within 
five business days of receipt of the extension request. Within five 
business days of notification to the Commissioners of a request for 
consideration of a legal question, if two or more Commissioners agree 
that the Commission should consider the request, OGC may, at that time, 
attempt to resolve the matter informally over the course of five 
business days. Within 15 business days from the date upon which RAD and 
OGC conclude that the matter cannot be resolved informally, or from the 
expiration of the five-business day period, whichever occurs first, OGC 
will prepare and circulate a recommendation in accordance with all 
applicable Commission Directives. If the matter is resolved informally, 
RAD and OGC will notify the Commission that the matter has been 
resolved and notify the

[[Page 30742]]

Requestor in writing of the notification to the Commission. Informal 
resolution of a matter does not prevent the Requestor from seeking 
Commission consideration, in an additional or subsequent determination, 
subject to the requirements of this program.
    After the recommendation is circulated for a Commission vote, in 
the event of an objection, the matter shall be automatically placed on 
the next meeting agenda consistent with the Sunshine Act, 5 U.S.C. 
552b(g), and applicable Commission regulations in 11 CFR part 2. 
However, if within 60 business days of the filing of a request for 
consideration, the Commission has not resolved the issue or provided 
guidance on how to proceed with the matter by the affirmative vote of 
four or more Commissioners, RAD may proceed with the matter. After the 
60 business days have elapsed, any requestor will be provided a copy of 
OGC's recommendation memorandum and an accompanying vote certification, 
or if no such certification exists, a cover page stating the 
disposition of the memorandum. Confidential information will be 
redacted as necessary.
    After the request review process has concluded, a copy of the 
request for consideration, as well as the recommendation memorandum and 
accompanying vote certification or disposition memorandum, will be 
placed with the Committee's filings on the Commission's website within 
30 days. These materials will also be placed on the Commission's web 
page dedicated to legal questions considered by the Commission under 
this program.
    This procedure is not intended to circumvent or supplant the 
Advisory Opinion process provided under 52 U.S.C. 30108 and 11 CFR part 
112. Accordingly, any legal issues that qualify for consideration under 
the Advisory Opinion process are not appropriate for consideration 
under this procedure.

II. Annual Review

    No later than July 1 of each year, the Office of Compliance and OGC 
shall jointly prepare and distribute to the Commission a written report 
containing a summary of the requests made under the program over the 
previous year and a summary of the Commission's consideration of those 
requests and any action taken thereon. The annual report shall also 
include the Chief Compliance Officer's and the General Counsel's 
assessment of whether, and to what extent, the program has promoted 
efficiency and fairness in both the Commission's report review process, 
as well as their recommendations, if any, for modifications to the 
program.

    On behalf of the Commission.
Dara S. Lindenbaum,
Chair, Federal Election Commission.
[FR Doc. 2023-10111 Filed 5-11-23; 8:45 am]
BILLING CODE 6715-01-P