Policy Statement Establishing a Pilot Program for Probable Cause Hearings, 7551-7554 [E7-2723]

Download as PDF rmajette on PROD1PC67 with RULES Federal Register / Vol. 72, No. 32 / Friday, February 16, 2007 / Rules and Regulations continues in effect the action that established a procedure to make it easier for handlers to apply for an assessment credit. The change in the reporting requirements for fresh onions for peeling, chopping, or slicing, as well as the change to the safeguards for special purpose shipments were requested by industry members and should decrease the overall reporting burden. The benefits of this rule are not expected to be disproportionately greater or lesser for small handlers or producers than for larger entities. An alternative to these actions would be to have handlers report onion shipments rather than utilizing the information from each handler’s inspection certificates. However, most handlers were opposed to this alternative because it would increase their reporting burden. As with other similar marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, as noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule. AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. The Committee has a number of appointed subcommittees to review certain issues and make recommendations to the Committee. The Compliance Subcommittee met on May 16, 2006, and discussed these issues in detail. All interested persons were invited to attend this meeting and participate in the industry’s deliberations. Further, the Committee’s meeting on June 15, 2006, was widely publicized throughout the onion industry and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the June 15, 2006, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue. An interim final rule concerning this action was published in the Federal Register on November 7, 2006. Copies of the rule were mailed by the Committee’s staff to all Committee members, onion handlers, and interested persons. In addition, the rule was made available through the Internet by USDA and the Office of the Federal Register. That rule provided for a 60-day comment period, VerDate Aug<31>2005 14:54 Feb 15, 2007 Jkt 211001 which ended January 8, 2007. No comments were received. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/ fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. Paperwork Reduction Act The interim final rule published on November 7, 2006, provided a 60-day period for comments on the reporting requirements in that rule. No comments were received. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the information collection requirements that are contained in this rule were approved by OMB, under OMB No. 0581–0241, ‘‘Onions Grown in Certain Designated Counties in Idaho, and Malheur County, Oregon, M.O. No. 958.’’ In summary, this rule continues in effect the actions that established an application procedure for handlers to receive credit for assessments paid on onions that are subsequently regraded, resorted, or repacked within the production area or diverted to exempt special purpose outlets; changed the reporting requirements for fresh onions for peeling, chopping, or slicing; added ‘‘disposal’’ as a special purpose shipment; and changed the reporting requirements for special purpose shipments. This rule continues in effect the actions that removed reporting requirements for receivers and streamlined handler reporting requirements. These changes should enhance compliance with the special purpose shipment procedures established under the marketing order and contribute to the efficient operation of the program. After consideration of all relevant material presented, including the Committee’s recommendation, and other information, it is found that finalizing this interim final rule, without change, as published in the Federal Register (71 FR 65037, November 7, 2006) will tend to effectuate the declared policy of the Act. List of Subjects in 7 CFR Part 958 Marketing agreements, Onions, Reporting and recordkeeping requirements. PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 7551 PART 958—ONIONS GROWN IN CERTAIN DESIGNATED COUNTIES IN IDAHO, AND MALHEUR COUNTY, OREGON Accordingly, the interim final rule amending 7 CFR part 958, which was published at 71 FR 65037 on November 7, 2006, is adopted as a final rule without change. I Dated: February 12, 2007. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E7–2724 Filed 2–15–07; 8:45 am] BILLING CODE 3410–02–P FEDERAL ELECTION COMMISSION 11 CFR Part 111 [Notice 2007–04] Policy Statement Establishing a Pilot Program for Probable Cause Hearings Federal Election Commission. Statement of policy. AGENCY: ACTION: SUMMARY: The Federal Election Commission (‘‘Commission’’) is establishing a pilot program that will allow respondents in enforcement proceedings under the Federal Election Campaign Act, as amended (‘‘FECA’’), to have an oral hearing before the Commission. Hearings will take place prior to the Commission’s consideration of the General Counsel’s recommendation on whether to find probable cause to believe that a violation has occurred. The Commission will grant a request for a probable cause hearing if any two commissioners agree to hold a hearing. The program will provide respondents with the opportunity to present arguments to the Commission directly and give the Commission an opportunity to ask relevant questions. Further information about the procedures for the pilot program is provided in the supplementary information that follows. DATES: Effective Date: February 16, 2007. FOR FURTHER INFORMATION CONTACT: Mark D. Shonkwiler, Assistant General Counsel, 999 E Street, NW., Washington, DC 20463, (202) 694–1650 or (800) 424–9530. SUPPLEMENTARY INFORMATION: The Federal Election Commission is establishing a pilot program to afford respondents in pending enforcement matters the opportunity to participate in hearings (generally through counsel) and present oral arguments directly to E:\FR\FM\16FER1.SGM 16FER1 7552 Federal Register / Vol. 72, No. 32 / Friday, February 16, 2007 / Rules and Regulations the Commissioners, prior to any Commission determination of whether to find probable cause to believe that respondents violated FECA.1 I. Background On June 11, 2003, the Commission held a hearing concerning its enforcement procedures. The Commission received comments from those in the regulated community, many of whom argued for increased transparency in Commission procedures and expanded opportunities to contest allegations.2 In response to issues raised at the hearing, the Commission has made a number of changes, such as allowing Respondents to have access to their deposition transcripts, See Statement of Policy Regarding Deposition Transcripts in Nonpublic Investigations, 68 FR 50688 (August 22, 2003), and clarifying questions concerning treasurer liability for violations of the FECA, See Statement of Policy Regarding Treasurers Subject to Enforcement Proceedings, 70 FR 3 (January 3, 2005). On December 8, 2006, the Commission published a proposal for a pilot program for probable cause hearings, and sought comments from the regulated community. See Proposed Policy Statement Establishing Pilot Program for Probable Cause Hearings, 71 FR 71088 (Dec. 8, 2006). The comment period on the proposed policy statement closed on January 5, 2007. The Commission received four comments, all of which endorsed the proposed pilot program for probable cause hearings. These comments are available at http://www.fec.gov/law/ policy.shtml#proposed under the heading ‘‘Pilot Program for Probable Cause Hearings.’’ II. Procedures for Probable Cause Hearings rmajette on PROD1PC67 with RULES A. Opportunity To Request a Hearing A respondent may request a probable cause hearing when the enforcement process reaches the probable cause determination stage (see 11 CFR 111.16—111.17) and the respondent submits a probable cause response brief to the Office of General Counsel. The General Counsel will attach a cover letter to its probable cause brief to inform the respondent of the opportunity to request an oral hearing 1 The Commission is appending to this statement a general description of its enforcement procedures (‘‘Basic Commission Enforcement Procedure’’). These procedures are prescribed by statute and regulation. See 2 U.S.C. 437g; 11 CFR part 111. 2 The comments from these 2003 proceedings are available online at http://www.fec.gov/agenda/ agendas2003/notice2003–09/comments.shtml. VerDate Aug<31>2005 14:54 Feb 15, 2007 Jkt 211001 before the Commission. See 11 CFR 111.16(b). Hearings are voluntary and no adverse inference will be drawn by the Commission based on a respondent’s request or waiver of such a hearing. The respondent must include a written request for a hearing as a part of its properly and timely filed reply brief under 11 CFR 111.16(c). Any request for a hearing must state with specificity why the hearing is being requested and what issues the respondent expects to address. Absent good cause, to be determined at the sole discretion of the Commission, late requests will not be accepted. Respondents are responsible for ensuring that their request is timely received. All requests for hearings, scheduling and format inquiries, document submissions, and any other inquiries related to the probable cause hearings should be directed to the Office of General Counsel. The Commission will grant a request for an oral 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. The Commission will inform the respondent whether the Commission is granting the respondent’s request within 30 days of receiving the respondent’s brief. Respondents who submitted their probable cause briefs prior to the effective date of this policy statement may request in writing a probable cause hearing if the Commission has not made its probable cause determination. Two commenters suggested that the Commission offer oral hearings at other stages of the enforcement process, including prior to a Commission decision to enter into pre-probable cause conciliation. The commenters provided no specific suggestion as to how such hearings at other stages of the enforcement process would benefit the decision-making process. The Commission declines to adopt such an expansion of the pilot program at this time. B. Hearing Procedures The purpose of the oral hearing is to provide a respondent an opportunity to present his or her arguments in person to the Commissioners before the Commission makes a determination that there is ‘‘probable cause to believe’’ that the respondent violated the Act or Commission regulations. Consistent with current Commission regulations, any respondent may be represented by counsel, at the respondent’s own expense, or may appear pro se at any probable cause hearing. See 11 CFR 111.23. Respondents (or their counsel) PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 will have the opportunity to present their arguments, and Commissioners, the General Counsel, and the Staff Director will have the opportunity to pose questions to the respondent, or respondent’s counsel, if represented. One commenter suggested that the proposed probable cause hearing procedure be revised to exclude any questioning of respondents or respondents’ counsel by the Commission’s General Counsel or Staff Director, as this would be a continuation of the completed investigation and would offer little value to the Commission. The Commission rejects this suggestion. The Commission believes that the participation of the General Counsel and Staff Director in the hearings is appropriate and may often prove helpful to the Commission. Respondents may discuss any issues presented in the enforcement matter, including potential liability and calculation of a civil penalty. Hearings are confidential and not open to the public; generally only respondents and their counsel may attend. Attendance by any other parties must be approved by the Commission in advance. The Commission will determine the format and time allotted for each hearing at its discretion. Among the factors that the Commission may consider are agency time constraints, the complexity of the issues raised, the number of respondents involved, and Commission interest. The Commission will determine the amount of time allocated for each portion of the hearing, and these time limits may vary from hearing to hearing. The Commission anticipates that most hearings will begin with a brief opening statement by respondent or respondents’ counsel, followed by questioning from the Commissioners, General Counsel, and Staff Director. Hearings will normally conclude with the respondent or respondent’s counsel’s closing remarks. Third party witnesses or other corespondents may not be called to testify at a respondent’s oral hearing, nor may a respondents’ counsel call the respondent to testify. However, the Commission may request that the respondent submit supplementary information or briefing after the probable cause hearing. The Commission discourages voluminous submissions. Supplementary information may not be submitted more than ten days after the oral hearing, unless the Commission’s request for information imposes a different, Commission-approved deadline. Materials requested by the Commission, and materials considered by the E:\FR\FM\16FER1.SGM 16FER1 Federal Register / Vol. 72, No. 32 / Friday, February 16, 2007 / Rules and Regulations Commission in making its ‘‘probable cause to believe’’ determination, may be made part of the public record pursuant to the Commission’s Statement of Policy Regarding Disclosure of Closed Enforcement and Related Files, 68 FR 70426 (Dec. 18, 2003). The Commission will have transcripts made of the hearings. The transcripts will become a part of the record for the enforcement matter and may be relied upon for determinations made by the Commission. Respondent may be bound by any representations made by respondent or respondents’ counsel at a hearing. The Commission will make the transcripts available to the respondent as soon as practicable after the hearing, and the respondent may purchase copies of the transcript. Transcripts will be made public after the matter is closed in accordance with Commission policies on disclosure.3 rmajette on PROD1PC67 with RULES C. Cases Involving Multiple Respondents In cases involving multiple respondents, the Commission will decide on a case-by-case basis whether to structure any hearing(s) separately or as joint hearings for all respondents. Respondents are encouraged to advise the Commission of their preferences. Co-respondents may request joint hearings if each participating corespondent provides an unconditional waiver of confidentiality with respect to other participating co-respondents and their counsel and a nondisclosure agreement. If separate hearings are held, each respondent will have access to the transcripts from his/her/its own hearing, but not transcripts of other corespondents’ hearings, unless corespondents specifically provide written consent to the Commission granting access to such transcript(s). D. Scheduling of Hearings The Commission will seek to hold the hearing in a timely manner after receiving respondents’ request for a hearing. The Commission will attempt to schedule the hearings at a mutually acceptable date and time. However, if a respondent is unable to accommodate the Commission’s schedule, the Commission may decline to hold a hearing. The Commission reserves the right to reschedule any hearing. Where necessary, the Commission reserves the right to request from a respondent an agreement tolling any upcoming deadline, including any statutory 3 The Commission’s Statement of Policy Regarding Disclosure of Closed Enforcement and Related Files, 68 FR 70426 (Dec. 18, 2003) is hereby amended to include disclosure of transcripts from probable cause hearings. VerDate Aug<31>2005 14:54 Feb 15, 2007 Jkt 211001 deadline or other deadline found in 11 CFR part 111. E. Pilot Program The pilot program will last eight months from the time that this policy is approved. After eight months, a vote will be scheduled on whether the program should continue. The program will remain in effect until that vote is taken. Four affirmative votes will be required to extend or make permanent the program. The program will be terminated after that vote if there are not four affirmative votes to make the program permanent or to extend it for some time period. The Commission may terminate or modify this pilot program through additional policy statements prior to the eighth month of the pilot program by an affirmative vote of four of its members. If the pilot program is terminated, previously requested hearings may still be held. F. Conclusion The Commission urges respondents to consider carefully the costs and benefits of proceeding to probable cause briefings and/or hearings. The hearings are optional and no negative inference will be drawn if respondents do not request a hearing. Currently, the majority of the Commission’s cases are settled through pre-probable cause conciliation. Proceeding to probable cause briefing requires a substantial investment of the Commission’s limited resources. Consistent with the goal of expeditious resolution of enforcement matters, the Commission encourages pre-probable cause conciliation. The Commission has a practice in many cases of reducing the civil penalty it seeks through its opening settlement offer in pre-probable cause conciliation. However, once pre-probable cause conciliation has been terminated, this reduction (normally 25%) is no longer available and the civil penalty will generally increase. This notice represents a general statement of policy announcing the general course of action that the Commission intends to follow. This policy statement does not constitute an agency regulation requiring notice of proposed rulemaking, opportunities for public participation, prior publication, and delay in effective date under 5 U.S.C. 553 of the Administrative Procedures Act (‘‘APA’’). As such, it does not bind the Commission or any member of the general public. 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. PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 7553 Dated: February 12, 2007. Robert D. Lenhard, Chairman, Federal Election Commission. Appendix Basic Commission Enforcement Procedure The Commission’s enforcement procedures are set forth at 11 CFR part 111. An enforcement matter may be initiated by a complaint or on the basis of information ascertained by the Commission in the normal course of carrying out its supervisory responsibilities. 11 CFR 111.3. If a complaint substantially complies with certain requirements set forth in 11 CFR 111.4, within five days of receipt the Office of General Counsel notifies each party determined to be a respondent that a complaint has been filed, provides a copy of the complaint, and advises each respondent of Commission compliance procedures. 11 CFR 111.5. A respondent then has 15 days from receipt of the notification from the Office of General Counsel to submit a letter or memorandum to the Commission setting forth reasons why the Commission should take no action on the basis of the complaint. 11 CFR 111.6. Following receipt of such letter or memorandum, or expiration of the 15-day period, the Office of General Counsel may recommend to the Commission whether or not it should find ‘‘reason to believe’’ that a respondent has committed or is about to commit a violation of the Act or Commission regulations. 11 CFR 111.7(a).4 With respect to internally-generated matters (e.g., referrals from the Commission’s Audit or Reports Analysis Divisions), the Office of General Counsel may recommend that the Commission find ‘‘reason to believe’’ that a respondent has committed or is about to commit a violation of the Act or Commission regulations on the basis of information ascertained by the Commission in the normal course of carrying out its supervisory responsibilities, or on the basis of a referral from an agency of the United States or any state. If the Commission determines by an affirmative vote of four members that it has ‘‘reason to believe’’ that a respondent violated the Act or Commission regulations, the respondent must be notified by letter of the Commission’s finding(s). 11 CFR 111.9(a).5 The Office of General Counsel will also provide the respondent with a Factual and Legal Analysis, which will set forth the bases for the Commission’s finding of reason to believe. After the Commission makes a ‘‘reason to believe’’ finding, an investigation is conducted by the Office of General Counsel, in which the Commission may undertake field investigations, audits, and other methods of information-gathering. 11 CFR 4 The Office of General Counsel may also recommend that the Commission find no ‘‘reason to believe’’ that a violation has been committed to is about to be committed, or that the Commission otherwise dismiss a complaint without regard to the provisions of 11 CFR 111.6(a). 11 CFR 111.7(b). 5 If the Commission finds no ‘‘reason to believe,’’ or otherwise terminates its proceedings, the Office of General Counsel shall advise the complainant and respondent(s) by letter. 11 CFR 111.9(b). E:\FR\FM\16FER1.SGM 16FER1 7554 Federal Register / Vol. 72, No. 32 / Friday, February 16, 2007 / Rules and Regulations rmajette on PROD1PC67 with RULES 111.10. Additionally, the Commission may issue subpoenas to order any person to submit sworn written answers to written questions, to provide documents, or to appear for a deposition. 11 CFR 111.11– 111.12. Any person who is subpoenaed may submit a motion to the Commission for it to be quashed or modified. 11 CFR 111.15. Following a ‘‘reason to believe’’ finding, the Commission may attempt to reach a conciliation agreement with the respondent(s) prior to reaching the ‘‘probable cause’’ stage of enforcement (i.e., a preprobable cause conciliation agreement). See 11 CFR 111.18(d). If the Commission is unable to reach a pre-probable cause conciliation agreement with the respondent, or determines that such a conciliation agreement would not be appropriate, upon completion of the investigation referenced in the preceding paragraph, the Office of General Counsel prepares a brief setting forth its position on the factual and legal issues of the matter and containing a recommendation on whether or not the Commission should find ‘‘probable cause to believe’’ that a violation has occurred or is about to occur. 11 CFR 111.16(a). The Office of General Counsel notifies the respondent(s) of this recommendation and provides a copy of the probable cause brief. 11 CFR 111.16(b). The respondent(s) may file a written response to the probable cause brief within fifteen days of receiving said brief. 11 CFR 111.16(c). After reviewing this response, the Office of General Counsel shall advise the Commission in writing whether it intends to proceed with the recommendation or to withdraw the recommendation from Commission consideration. 11 CFR 111.16(d). If the Commission determines by an affirmative vote of four members that there is ‘‘probable cause to believe’’ that a respondent has violated the Act or Commission regulations, the Commission authorizes the Office of General Counsel to notify the respondent by letter of this determination. 11 CFR 111.17(a). Upon a Commission finding of ‘‘probable cause to believe,’’ the Commission must attempt to reach a conciliation agreement with the respondent. 11 CFR 111.18(a). If no conciliation agreement is finalized within the time period specified in 11 CFR 111.18(c), the Office of General Counsel may recommend to the Commission that it authorize a civil action for relief in the appropriate court. 11 CFR 111.19(a). Commencement of such civil action requires an affirmative vote of four members of the Commission. 11 CFR 111.19(b). The Commission may enter into a conciliation agreement with respondent after authorizing a civil action. 11 CFR 111.19(c). [FR Doc. E7–2723 Filed 2–15–07; 8:45 am] BILLING CODE 6715–01–P VerDate Aug<31>2005 14:54 Feb 15, 2007 Jkt 211001 DEPARTMENT OF TRANSPORTATION Examining the AD Docket Federal Aviation Administration You may examine the docket that contains the AD, any comments received, and any final disposition in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647–5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES. Comments will be available in the AD docket shortly after the DMS receives them. 14 CFR Part 39 [Docket No. FAA–2006–24036; Directorate Identifier 2006–NE–04–AD; Amendment 39– 14947; AD 2007–04–15] RIN 2120–AA64 Airworthiness Directives; Sicma Aero Seat, Passenger Seat Assemblies Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. AGENCY: SUMMARY: The FAA is adopting a new airworthiness directive (AD) for certain Sicma Aero Seat, passenger seat assemblies. This AD requires modifying the aft track fittings on these passenger seat assemblies by installing new tab locks, and then torquing the aft track fitting locking bolts. We are issuing this AD to prevent detachment of passenger seat assemblies, especially during emergency conditions, leading to occupant injury. DATES: This AD becomes effective March 23, 2007. The Director of the Federal Register approved the incorporation by reference of certain publications listed in the regulations as of March 23, 2007. ADDRESSES: You can get the service information identified in this AD from Sicma Aero Seat, 7 Rue Lucien Coupet, 36100 Issoudun, France, telephone: (33) 54 03 39 39; fax: (33) 54 03 15 16. You may examine the AD docket on the Internet at http://dms.dot.gov or in Room PL–401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC. FOR FURTHER INFORMATION CONTACT: Jeffrey Lee, Aerospace Engineer, Boston Aircraft Certification Office, FAA, Engine and Propeller Directorate, FAA, 12 New England Executive Park, Burlington, MA 01803; telephone (781) 238–7161; fax (781) 238–7170; e-mail: Jeffrey.lee@faa.gov. The FAA proposed to amend 14 CFR part 39 with a proposed AD. The proposed AD applies to certain Sicma Aero Seat, passenger seat assemblies. We published the proposed AD in the Federal Register on March 17, 2006 (71 FR 13787). That action proposed to require modifying the aft track fittings on these passenger seat assemblies by installing new tab locks, and then torquing the aft track fitting locking bolts. SUPPLEMENTARY INFORMATION: PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 Comments We provided the public the opportunity to participate in the development of this AD. We have considered the comments received. Request To Add Airbus A340 Series Airplanes One commenter, Airbus, requests that we add the Airbus A340 series airplanes to the list of airplanes these seats could be installed on. We agree and added the A340 series airplanes to the list in applicability paragraph (c). There are no U.S.-registered A340 series airplanes, so the costs of compliance do not change in the AD. Add Reference to An Alternative Method of Compliance (AMOC) Airbus requests that we take into account and add a reference to the AMOC of Sicma Aero Seat Service Bulletin No. SB–90–25–009, as allowed by France AD 1994–085 R2. We do not agree. Allowing this AMOC would require operators to obtain and use procedures supplied by the manufacturer. Our AD process already provides a method for operators to request an AMOC, if they so desire. We did not change the AD. Correction to Annex 1 Reference We discovered that we inadvertently referenced Sicma Aero Seat Service Bulletin Annex 1 as Issue 2, dated March 31, 1999. We corrected it to Annex 1, Issue 1, dated March 31, 1999. Conclusion We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD. E:\FR\FM\16FER1.SGM 16FER1

Agencies

[Federal Register Volume 72, Number 32 (Friday, February 16, 2007)]
[Rules and Regulations]
[Pages 7551-7554]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-2723]


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FEDERAL ELECTION COMMISSION

11 CFR Part 111

[Notice 2007-04]


Policy Statement Establishing a Pilot Program for Probable Cause 
Hearings

AGENCY: Federal Election Commission.

ACTION: Statement of policy.

-----------------------------------------------------------------------

SUMMARY: The Federal Election Commission (``Commission'') is 
establishing a pilot program that will allow respondents in enforcement 
proceedings under the Federal Election Campaign Act, as amended 
(``FECA''), to have an oral hearing before the Commission. Hearings 
will take place prior to the Commission's consideration of the General 
Counsel's recommendation on whether to find probable cause to believe 
that a violation has occurred. The Commission will grant a request for 
a probable cause hearing if any two commissioners agree to hold a 
hearing. The program will provide respondents with the opportunity to 
present arguments to the Commission directly and give the Commission an 
opportunity to ask relevant questions. Further information about the 
procedures for the pilot program is provided in the supplementary 
information that follows.

DATES: Effective Date: February 16, 2007.

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

SUPPLEMENTARY INFORMATION: The Federal Election Commission is 
establishing a pilot program to afford respondents in pending 
enforcement matters the opportunity to participate in hearings 
(generally through counsel) and present oral arguments directly to

[[Page 7552]]

the Commissioners, prior to any Commission determination of whether to 
find probable cause to believe that respondents violated FECA.\1\
---------------------------------------------------------------------------

    \1\ The Commission is appending to this statement a general 
description of its enforcement procedures (``Basic Commission 
Enforcement Procedure''). These procedures are prescribed by statute 
and regulation. See 2 U.S.C. 437g; 11 CFR part 111.
---------------------------------------------------------------------------

I. Background

    On June 11, 2003, the Commission held a hearing concerning its 
enforcement procedures. The Commission received comments from those in 
the regulated community, many of whom argued for increased transparency 
in Commission procedures and expanded opportunities to contest 
allegations.\2\ In response to issues raised at the hearing, the 
Commission has made a number of changes, such as allowing Respondents 
to have access to their deposition transcripts, See Statement of Policy 
Regarding Deposition Transcripts in Nonpublic Investigations, 68 FR 
50688 (August 22, 2003), and clarifying questions concerning treasurer 
liability for violations of the FECA, See Statement of Policy Regarding 
Treasurers Subject to Enforcement Proceedings, 70 FR 3 (January 3, 
2005).
---------------------------------------------------------------------------

    \2\ The comments from these 2003 proceedings are available 
online at http://www.fec.gov/agenda/agendas2003/notice2003-09/
comments.shtml.
---------------------------------------------------------------------------

    On December 8, 2006, the Commission published a proposal for a 
pilot program for probable cause hearings, and sought comments from the 
regulated community. See Proposed Policy Statement Establishing Pilot 
Program for Probable Cause Hearings, 71 FR 71088 (Dec. 8, 2006). The 
comment period on the proposed policy statement closed on January 5, 
2007. The Commission received four comments, all of which endorsed the 
proposed pilot program for probable cause hearings. These comments are 
available at http://www.fec.gov/law/policy.shtml#proposed under the 
heading ``Pilot Program for Probable Cause Hearings.''

II. Procedures for Probable Cause Hearings

A. Opportunity To Request a Hearing

    A respondent may request a probable cause hearing when the 
enforcement process reaches the probable cause determination stage (see 
11 CFR 111.16--111.17) and the respondent submits a probable cause 
response brief to the Office of General Counsel. The General Counsel 
will attach a cover letter to its probable cause brief to inform the 
respondent of the opportunity to request an oral hearing before the 
Commission. See 11 CFR 111.16(b). Hearings are voluntary and no adverse 
inference will be drawn by the Commission based on a respondent's 
request or waiver of such a hearing. The respondent must include a 
written request for a hearing as a part of its properly and timely 
filed reply brief under 11 CFR 111.16(c). Any request for a hearing 
must state with specificity why the hearing is being requested and what 
issues the respondent expects to address. Absent good cause, to be 
determined at the sole discretion of the Commission, late requests will 
not be accepted. Respondents are responsible for ensuring that their 
request is timely received. All requests for hearings, scheduling and 
format inquiries, document submissions, and any other inquiries related 
to the probable cause hearings should be directed to the Office of 
General Counsel.
    The Commission will grant a request for an oral 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. The Commission will inform the respondent whether 
the Commission is granting the respondent's request within 30 days of 
receiving the respondent's brief. Respondents who submitted their 
probable cause briefs prior to the effective date of this policy 
statement may request in writing a probable cause hearing if the 
Commission has not made its probable cause determination.
    Two commenters suggested that the Commission offer oral hearings at 
other stages of the enforcement process, including prior to a 
Commission decision to enter into pre-probable cause conciliation. The 
commenters provided no specific suggestion as to how such hearings at 
other stages of the enforcement process would benefit the decision-
making process. The Commission declines to adopt such an expansion of 
the pilot program at this time.

B. Hearing Procedures

    The purpose of the oral hearing is to provide a respondent an 
opportunity to present his or her arguments in person to the 
Commissioners before the Commission makes a determination that there is 
``probable cause to believe'' that the respondent violated the Act or 
Commission regulations. Consistent with current Commission regulations, 
any respondent may be represented by counsel, at the respondent's own 
expense, or may appear pro se at any probable cause hearing. See 11 CFR 
111.23. Respondents (or their counsel) will have the opportunity to 
present their arguments, and Commissioners, the General Counsel, and 
the Staff Director will have the opportunity to pose questions to the 
respondent, or respondent's counsel, if represented. One commenter 
suggested that the proposed probable cause hearing procedure be revised 
to exclude any questioning of respondents or respondents' counsel by 
the Commission's General Counsel or Staff Director, as this would be a 
continuation of the completed investigation and would offer little 
value to the Commission. The Commission rejects this suggestion. The 
Commission believes that the participation of the General Counsel and 
Staff Director in the hearings is appropriate and may often prove 
helpful to the Commission.
    Respondents may discuss any issues presented in the enforcement 
matter, including potential liability and calculation of a civil 
penalty. Hearings are confidential and not open to the public; 
generally only respondents and their counsel may attend. Attendance by 
any other parties must be approved by the Commission in advance.
    The Commission will determine the format and time allotted for each 
hearing at its discretion. Among the factors that the Commission may 
consider are agency time constraints, the complexity of the issues 
raised, the number of respondents involved, and Commission interest. 
The Commission will determine the amount of time allocated for each 
portion of the hearing, and these time limits may vary from hearing to 
hearing. The Commission anticipates that most hearings will begin with 
a brief opening statement by respondent or respondents' counsel, 
followed by questioning from the Commissioners, General Counsel, and 
Staff Director. Hearings will normally conclude with the respondent or 
respondent's counsel's closing remarks.
    Third party witnesses or other co-respondents may not be called to 
testify at a respondent's oral hearing, nor may a respondents' counsel 
call the respondent to testify. However, the Commission may request 
that the respondent submit supplementary information or briefing after 
the probable cause hearing. The Commission discourages voluminous 
submissions. Supplementary information may not be submitted more than 
ten days after the oral hearing, unless the Commission's request for 
information imposes a different, Commission-approved deadline. 
Materials requested by the Commission, and materials considered by the

[[Page 7553]]

Commission in making its ``probable cause to believe'' determination, 
may be made part of the public record pursuant to the Commission's 
Statement of Policy Regarding Disclosure of Closed Enforcement and 
Related Files, 68 FR 70426 (Dec. 18, 2003).
    The Commission will have transcripts made of the hearings. The 
transcripts will become a part of the record for the enforcement matter 
and may be relied upon for determinations made by the Commission. 
Respondent may be bound by any representations made by respondent or 
respondents' counsel at a hearing. The Commission will make the 
transcripts available to the respondent as soon as practicable after 
the hearing, and the respondent may purchase copies of the transcript. 
Transcripts will be made public after the matter is closed in 
accordance with Commission policies on disclosure.\3\
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    \3\ The Commission's Statement of Policy Regarding Disclosure of 
Closed Enforcement and Related Files, 68 FR 70426 (Dec. 18, 2003) is 
hereby amended to include disclosure of transcripts from probable 
cause hearings.
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C. Cases Involving Multiple Respondents

    In cases involving multiple respondents, the Commission will decide 
on a case-by-case basis whether to structure any hearing(s) separately 
or as joint hearings for all respondents. Respondents are encouraged to 
advise the Commission of their preferences. Co-respondents may request 
joint hearings if each participating co-respondent provides an 
unconditional waiver of confidentiality with respect to other 
participating co-respondents and their counsel and a nondisclosure 
agreement. If separate hearings are held, each respondent will have 
access to the transcripts from his/her/its own hearing, but not 
transcripts of other co-respondents' hearings, unless co-respondents 
specifically provide written consent to the Commission granting access 
to such transcript(s).

D. Scheduling of Hearings

    The Commission will seek to hold the hearing in a timely manner 
after receiving respondents' request for a hearing. The Commission will 
attempt to schedule the hearings at a mutually acceptable date and 
time. However, if a respondent is unable to accommodate the 
Commission's schedule, the Commission may decline to hold a hearing. 
The Commission reserves the right to reschedule any hearing. Where 
necessary, the Commission reserves the right to request from a 
respondent an agreement tolling any upcoming deadline, including any 
statutory deadline or other deadline found in 11 CFR part 111.

E. Pilot Program

    The pilot program will last eight months from the time that this 
policy is approved. After eight months, a vote will be scheduled on 
whether the program should continue. The program will remain in effect 
until that vote is taken. Four affirmative votes will be required to 
extend or make permanent the program. The program will be terminated 
after that vote if there are not four affirmative votes to make the 
program permanent or to extend it for some time period. The Commission 
may terminate or modify this pilot program through additional policy 
statements prior to the eighth month of the pilot program by an 
affirmative vote of four of its members. If the pilot program is 
terminated, previously requested hearings may still be held.

F. Conclusion

    The Commission urges respondents to consider carefully the costs 
and benefits of proceeding to probable cause briefings and/or hearings. 
The hearings are optional and no negative inference will be drawn if 
respondents do not request a hearing. Currently, the majority of the 
Commission's cases are settled through pre-probable cause conciliation. 
Proceeding to probable cause briefing requires a substantial investment 
of the Commission's limited resources. Consistent with the goal of 
expeditious resolution of enforcement matters, the Commission 
encourages pre-probable cause conciliation. The Commission has a 
practice in many cases of reducing the civil penalty it seeks through 
its opening settlement offer in pre-probable cause conciliation. 
However, once pre-probable cause conciliation has been terminated, this 
reduction (normally 25%) is no longer available and the civil penalty 
will generally increase.
    This notice represents a general statement of policy announcing the 
general course of action that the Commission intends to follow. This 
policy statement does not constitute an agency regulation requiring 
notice of proposed rulemaking, opportunities for public participation, 
prior publication, and delay in effective date under 5 U.S.C. 553 of 
the Administrative Procedures Act (``APA''). As such, it does not bind 
the Commission or any member of the general public. 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.

    Dated: February 12, 2007.
Robert D. Lenhard,
Chairman, Federal Election Commission.

Appendix

Basic Commission Enforcement Procedure

    The Commission's enforcement procedures are set forth at 11 CFR 
part 111. An enforcement matter may be initiated by a complaint or 
on the basis of information ascertained by the Commission in the 
normal course of carrying out its supervisory responsibilities. 11 
CFR 111.3. If a complaint substantially complies with certain 
requirements set forth in 11 CFR 111.4, within five days of receipt 
the Office of General Counsel notifies each party determined to be a 
respondent that a complaint has been filed, provides a copy of the 
complaint, and advises each respondent of Commission compliance 
procedures. 11 CFR 111.5. A respondent then has 15 days from receipt 
of the notification from the Office of General Counsel to submit a 
letter or memorandum to the Commission setting forth reasons why the 
Commission should take no action on the basis of the complaint. 11 
CFR 111.6.
    Following receipt of such letter or memorandum, or expiration of 
the 15-day period, the Office of General Counsel may recommend to 
the Commission whether or not it should find ``reason to believe'' 
that a respondent has committed or is about to commit a violation of 
the Act or Commission regulations. 11 CFR 111.7(a).\4\ With respect 
to internally-generated matters (e.g., referrals from the 
Commission's Audit or Reports Analysis Divisions), the Office of 
General Counsel may recommend that the Commission find ``reason to 
believe'' that a respondent has committed or is about to commit a 
violation of the Act or Commission regulations on the basis of 
information ascertained by the Commission in the normal course of 
carrying out its supervisory responsibilities, or on the basis of a 
referral from an agency of the United States or any state. If the 
Commission determines by an affirmative vote of four members that it 
has ``reason to believe'' that a respondent violated the Act or 
Commission regulations, the respondent must be notified by letter of 
the Commission's finding(s). 11 CFR 111.9(a).\5\ The Office of 
General Counsel will also provide the respondent with a Factual and 
Legal Analysis, which will set forth the bases for the Commission's 
finding of reason to believe.
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    \4\ The Office of General Counsel may also recommend that the 
Commission find no ``reason to believe'' that a violation has been 
committed to is about to be committed, or that the Commission 
otherwise dismiss a complaint without regard to the provisions of 11 
CFR 111.6(a). 11 CFR 111.7(b).
    \5\ If the Commission finds no ``reason to believe,'' or 
otherwise terminates its proceedings, the Office of General Counsel 
shall advise the complainant and respondent(s) by letter. 11 CFR 
111.9(b).
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    After the Commission makes a ``reason to believe'' finding, an 
investigation is conducted by the Office of General Counsel, in 
which the Commission may undertake field investigations, audits, and 
other methods of information-gathering. 11 CFR

[[Page 7554]]

111.10. Additionally, the Commission may issue subpoenas to order 
any person to submit sworn written answers to written questions, to 
provide documents, or to appear for a deposition. 11 CFR 111.11-
111.12. Any person who is subpoenaed may submit a motion to the 
Commission for it to be quashed or modified. 11 CFR 111.15.
    Following a ``reason to believe'' finding, the Commission may 
attempt to reach a conciliation agreement with the respondent(s) 
prior to reaching the ``probable cause'' stage of enforcement (i.e., 
a pre-probable cause conciliation agreement). See 11 CFR 111.18(d). 
If the Commission is unable to reach a pre-probable cause 
conciliation agreement with the respondent, or determines that such 
a conciliation agreement would not be appropriate, upon completion 
of the investigation referenced in the preceding paragraph, the 
Office of General Counsel prepares a brief setting forth its 
position on the factual and legal issues of the matter and 
containing a recommendation on whether or not the Commission should 
find ``probable cause to believe'' that a violation has occurred or 
is about to occur. 11 CFR 111.16(a).
    The Office of General Counsel notifies the respondent(s) of this 
recommendation and provides a copy of the probable cause brief. 11 
CFR 111.16(b). The respondent(s) may file a written response to the 
probable cause brief within fifteen days of receiving said brief. 11 
CFR 111.16(c). After reviewing this response, the Office of General 
Counsel shall advise the Commission in writing whether it intends to 
proceed with the recommendation or to withdraw the recommendation 
from Commission consideration. 11 CFR 111.16(d).
    If the Commission determines by an affirmative vote of four 
members that there is ``probable cause to believe'' that a 
respondent has violated the Act or Commission regulations, the 
Commission authorizes the Office of General Counsel to notify the 
respondent by letter of this determination. 11 CFR 111.17(a). Upon a 
Commission finding of ``probable cause to believe,'' the Commission 
must attempt to reach a conciliation agreement with the respondent. 
11 CFR 111.18(a). If no conciliation agreement is finalized within 
the time period specified in 11 CFR 111.18(c), the Office of General 
Counsel may recommend to the Commission that it authorize a civil 
action for relief in the appropriate court. 11 CFR 111.19(a). 
Commencement of such civil action requires an affirmative vote of 
four members of the Commission. 11 CFR 111.19(b). The Commission may 
enter into a conciliation agreement with respondent after 
authorizing a civil action. 11 CFR 111.19(c).

 [FR Doc. E7-2723 Filed 2-15-07; 8:45 am]
BILLING CODE 6715-01-P