Policy Statement Regarding a Program for Requesting Consideration of Legal Questions by the Commission, 29861-29862 [2016-11145]

Agencies

• Federal Election Commission

[Federal Register Volume 81, Number 93 (Friday, May 13, 2016)]
[Notices]
[Pages 29861-29862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11145]



[[Page 29861]]

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FEDERAL ELECTION COMMISSION

[Notice 2016-02]


Policy Statement Regarding a Program for Requesting Consideration 
of Legal Questions by the Commission

AGENCY: Federal Election Commission.

ACTION: Policy statement.

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SUMMARY: The Federal Election Commission (``Commission'') adopted a 
program on August 1, 2011, providing for a means by which persons and 
entities may have a legal question considered by the Commission earlier 
in both the report review process and the audit process. On October 23, 
2013, the Commission revised this policy to provide an alternative 
electronic means to file a request with the Commission. This new policy 
is identical to the October 23, 2013 program, except that it makes two 
modifications: (1) To clarify that requests for consideration be 
submitted to the Commission Secretary to ensure that such request are 
processed in timely manner, and (2) to build five business days into 
the program to allow time for informal resolution of matters.

DATES: Effective May 13, 2016.

FOR FURTHER INFORMATION CONTACT: Mr. Lorenzo Holloway, Assistant 
General Counsel, or Margaret Forman, Attorney, 999 E Street NW., 
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 and entities may have a 
legal question considered by the Commission earlier in both the report 
review process and the audit process. Specifically, when the Office of 
Compliance (``OC'') (which includes the Reports Analysis Division and 
the Audit Division) requests that a person or entity take corrective 
action during the report review or audit process, if the person or 
entity disagrees with the request based upon a material dispute on a 
question of law, the person or entity may seek Commission consideration 
of the issue pursuant to this procedure. This Commission is now 
revising this program. The October 23, 2013 revision of the program was 
identical to that August 1, 2011 program, except that it provided 
alternative means to file a request with the Commission. This change 
was made to address and clarify timeliness issues due to delays in the 
processing and receipt of requests mailed to the Commission, by 
encouraging requests to be filed electronically by email. Processing 
delays can result in an untimely submission of a request under the 
program. Persons and entities making such a request may not be aware 
that these processing delays can occur when documents are sent via 
first class mail to a federal government agency. As currently revised, 
the program is identical to the October 23, 2013 program, except that 
it makes two modifications: (1) To clarify that requests for 
consideration be submitted to the Commission Secretary to ensure that 
such request are processed in timely manner, and (2) to build five 
business days into the program to allow time for informal resolution of 
matters. The first change was made to address and clarify that these 
requests must be sent to the attention of the Commission Secretary, 
either through the dedicated email address, 
LegalRequestProgram@fec.gov, or by mail to the Commission's mailing 
address. There are two reasons for this change. First, the Commission 
Secretary is the person responsible for transmitting the Request to 
each Commissioner, the General Counsel, and the Staff Director, and 
therefore must be the recipient of any requests. Second, if the request 
is sent to another staff member, by email or otherwise, the processing 
of the request could be delayed. The second change was made to build 
five business days into the program to allow time for informal 
resolution of matters. This informal resolution process will be 
especially helpful in situations where the information related to or 
generated in the request reveals information that could potentially 
result in the informal resolution of the matter, without using 
additional Commission resources to submit the request formally through 
the entire Program. Allowing five business days to attempt to 
informally resolve matters will provide OGC and OC with an amount of 
time dedicated exclusively to informal resolution efforts instead of 
dividing their time and resources between attempting informal 
resolution and preparing the recommendation memorandum in a compressed 
time period intended solely for drafting the recommendation to the 
Commission. This informal resolution process would allow for a more 
efficient use of Commission resources. The policy statement regarding 
this program is reprinted in its entirety, below. It includes the 
revisions outlined above, which appear in the third and fourth 
paragraphs of the ``Procedures'' section, below.

I. Procedures

    Within 15 business days of a determination by the Reports Analysis 
Division or Audit Division that a person or entity remains obligated to 
take corrective action to resolve an issue that has arisen during the 
report review or audit process, the person or entity may seek 
Commission consideration if a material dispute on a question of law 
exists with respect to the recommended corrective action.\1\ A 
``determination'' for purposes of triggering the 15 business days is 
either: (1) Notification to the person or entity of legal guidance 
prepared by the Office of General Counsel (``OGC'') at the request of 
the Reports Analysis Division recommending the corrective action; or 
(2) the end of the Committee's Audit Exit Conference response period.
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    \1\ 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 Committee during the report 
review process or the audit 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. Requestors may submit requests electronically 
via email. If a Requestor chooses to submit a request electronically 
via email, the email must be sent to LegalRequestProgram@fec.gov. 
Requestors are encouraged to submit comments electronically to ensure 
timely receipt and consideration. Alternatively, requests may be 
submitted in paper form. Paper requests must be sent to the Federal 
Election Commission, Attn.: Commission

[[Page 29862]]

Secretary, 999 E Street NW., Washington, DC 20463. Requestors are 
advised that if they submit a request, electronically or otherwise, to 
a different address than designated in this Policy, the processing of 
the request may be delayed. 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.
    Any request for an extension of time to file 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 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 OC 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, OC and OGC will notify the Commission that the 
matter has been resolved, and notify the 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, 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, the OC may proceed with the matter. After 
the 60 business days has 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 memoranda. Confidential information will be 
redacted as necessary.
    After the request review process has concluded, or a Final Audit 
Report has been approved, 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 or audit documents on the Commission's Web site 
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 new procedure. Additionally, this policy statement does not 
supersede the procedures regarding eligibility and entitlement to 
public funds set forth in Commission Directive 24 and 11 CFR 9005.1, 
9033.4, 9033.6 or 9033.10.

II. Annual Review

    No later than July 1 of each year, the OC 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 and in the 
audit process, as well as their recommendations, if any, for 
modifications to the program.
    The Commission may terminate or modify this program through 
additional policy statements at any time by an affirmative vote of four 
of its members.

    On behalf of the Commission.

    Dated: May 5, 2016.
Matthew S. Petersen,
Chairman, Federal Election Commission.
[FR Doc. 2016-11145 Filed 5-12-16; 8:45 am]
BILLING CODE 6715-01-P