PART 9007—EXAMINATIONS AND AUDITS; REPAYMENTS Authority: 26 U.S.C. 9007 and 9009(b). Source: 56 FR 35924, July 29, 1991, unless otherwise noted. § 9007.1 Audits. (a) General. (2) In addition, the Commission may conduct other examinations and audits from time to time as it deems necessary to carry out the provisions of this subchapter. (3) Information obtained pursuant to any audit and examination conducted under 11 CFR 9007.1(a) (1) and (2) may be used by the Commission as the basis, or partial basis, for its repayment determinations under 11 CFR 9007.2. (b) Conduct of fieldwork. (i) Office space and records. (ii) Availability of committee personnel. (iii) Failure to provide staff, records or office space. (iv) If, in the course of the audit process, a dispute arises over the records sought or other requirements of the candidate agreement, the candidate may seek review by the Commission of the issues raised. To seek review, the candidate shall submit a written statement within 10 days after the disputed Commission staff request is made, describing the dispute and indicating the candidate's proposed alternative(s). (v) If the candidate or his or her authorized committee fails to produce particular records, materials, evidence or other information requested by the Commission, the Commission may issue an order pursuant to 52 U.S.C. 30107(a)(1) or a subpoena or subpoena duces tecum pursuant to 52 U.S.C. 30107(a)(3). The procedures set forth in 11 CFR 111.11 through 111.15, as appropriate, shall apply to the production of such records, materials, evidence or other information as specified in the order, subpoena or subpoena duces tecum. (2) Fieldwork will include the following steps designed to keep the candidate and committee informed as to the progress of the audit and to expedite the process: (i) Entrance conference. (ii) Review of records. (iii) Exit conference. (3) Commission staff may conduct additional fieldwork after the completion of the fieldwork conducted pursuant to 11 CFR 9007.1(b) (1) and (2). Factors that may necessitate such follow-up fieldwork include, but are not limited to, the following: (i) Committee response to audit findings; (ii) Financial activity of the committee subsequent to the fieldwork conducted pursuant to 11 CFR 9007.1(b)(1); (iii) Committee responses to Commission repayment determinations made under 11 CFR 9007.2. (4) The Commission will notify the candidate and his or her authorized committee if follow-up fieldwork is necessary. The provisions of 11 CFR 9007.1(b) (1) and (2) will apply to any additional fieldwork conducted. (c) Preliminary Audit Report: Issuance by Commission and committee response. (i) An evaluation of procedures and systems employed by the candidate and committee to comply with applicable provisions of the Federal Election Campaign Act, the Presidential Election Campaign Fund Act and Commission regulations; (ii) The accuracy of statements and reports filed with the Commission by the candidate and committee; and (iii) Preliminary calculations regarding future repayments to the United States Treasury. (2) The candidate and his or her authorized committee may submit in writing within 60 calendar days after receipt of the Preliminary Audit Report, legal and factual materials disputing or commenting on the proposed findings contained in the Preliminary Audit Report. In addition, the committee shall submit any additional records requested by the Commission. Such materials may be submitted by counsel if the candidate so desires. (d) Approval and issuance of the audit report. (2) The audit report may contain issues that warrant referral to the Office of General Counsel for possible enforcement proceedings under 52 U.S.C. 30109 and 11 CFR part 111. (3) Addenda to the audit report may be approved and issued by the Commission from time to time as circumstances warrant and as additional information becomes available. Such addenda may be based on follow-up fieldwork conducted under paragraph (b)(3) of this section, and/or information ascertained by the Commission in the normal course of carrying out its supervisory responsibilities. The procedures set forth in paragraphs (c) and (d) (1) and (2) of this section will be followed in preparing such addenda. The addenda will be placed on the public record as set forth in paragraph (e) of this section. Such addenda may also include additional repayment determination(s). (e) Public release of audit report. (2) Following Commission approval of the audit report, the report will be forwarded to the committee and released to the public. The Commission will provide the candidate and committee with copies of the audit report approved by the Commission 24 hours before releasing the report to the public. (f)(1) Sampling. (2) A committee in responding to a sample-based finding shall respond only to the specific sample items used to make the projection. If the committee demonstrates that any apparent errors found among the sample items were not errors, the Commission shall make a new projection based on the reduced number of errors in the sample. (3) Within 30 days of service of the Final Audit Report, the committee shall submit a check to the United States Treasury for the total amount of any excessive or prohibited contributions not refunded, reattributed or redesignated in a timely manner in accordance with 11 CFR 103.3(b) (1), (2) or (3); or take any other action required by the Commission with respect to sample-based findings. [56 FR 35924, July 29, 1991; 56 FR 42380, Aug. 27, 1991; 60 FR 31878, June 16, 1995; 64 FR 61780, Nov. 15, 1999; 79 FR 77851, Dec. 29, 2014; 89 FR 220, Jan. 2, 2024] § 9007.2 Repayments. (a) General. (2) The Commission will notify the candidate of any repayment determinations made under this section as soon as possible, but not later than 3 years after the day of the presidential election. The Commission's issuance of the audit report to the candidate under 11 CFR 9007.1(d) will constitute notification for purposes of this section. (3) Once the candidate receives notice of the Commission's repayment determination under this section, the candidate should give preference to the repayment over all other outstanding obligations of his or her committee, except for any federal taxes owed by the committee. (4) Repayments may be made only from the following sources: personal funds of the candidate (without regard to the limitations of 11 CFR 9003.2(c)), contributions and federal funds in the committee's account(s), and any additional funds raised subject to the limitations and prohibitions of the Federal Election Campaign Act of 1971, as amended. (b) Bases for repayment. (1) Payments in excess of candidate's entitlement. (2) Use of funds for non-qualified campaign expenses. (A) To defray qualified campaign expenses; (B) To repay loans, the proceeds of which were used to defray qualified campaign expenses; and (C) To restore funds (other than contributions which were received and expended by minor or new party candidates to defray qualified campaign expenses) which were used to defray qualified campaign expenses. (ii) Examples of Commission repayment determinations under 11 CFR 9007.2(b)(2) include, but are not limited to the following: (A) Determinations that a candidate, a candidate's authorized committee(s) or agent(s) have incurred expenses in excess of the aggregate payments to which an eligible major party candidate is entitled; (B) Determinations that amounts spent by a candidate, a candidate's authorized committee(s) or agent(s) from the Fund were not documented in accordance with 11 CFR 9003.5; (C) Determinations that any portion of the payments made to a candidate from the Fund was expended in violation of State or Federal law; and (D) Determinations that any portion of the payments made to a candidate from the Fund was used to defray expenses resulting from a violation of State or Federal law, such as the payment of fines or penalties. (iii) In the case of a candidate who has received contributions pursuant to 11 CFR 9003.3 (b) or (c), the amount of any repayment sought under this section shall bear the same ratio to the total amount determined to have been used for non-qualified campaign expenses as the amount of payments certified to the candidate from the Fund bears to the total deposits, as of December 31 of the Presidential election year. For purposes of this section, total deposits means all deposits to all candidate accounts minus transfers between accounts, refunds, rebates, reimbursements, checks returned for insufficient funds, proceeds of loans and other similar amounts. (3) Surplus. (4) Income on investment or other use of payments from the Fund. (5) Unlawful acceptance of contributions by an eligible candidate of a major party. (c) Repayment determination procedures. (1) Repayment determination. (2) Administrative review of repayment determination. (i) Submission of written materials. (ii) Oral hearing. (3) Repayment determination upon review. (d) Repayment period. (2) If the candidate requests an administrative review of the Commission's repayment determination(s) under paragraph (c)(2) of this section, the time for repayment will be suspended until the Commission has concluded its administrative review of the repayment determination(s). Within 30 calendar days after service of the notice of the Commission's post-administrative review repayment determination(s), the candidate shall repay to the United States Treasury the amounts which the Commission has determined to be repayable. Upon application by the candidate, the Commission may grant an extension of up to 90 calendar days in which to make repayment. (3) Interest shall be assessed on all repayments made after the initial 90-day repayment period established at paragraph (d)(1) of this section or the 30-day repayment period established at paragraph (d)(2) of this section. The amount of interest due shall be the greater of: (i) An amount calculated in accordance with 28 U.S.C. 1961 (a) and (b); or (ii) The amount actually earned on the funds set aside or to be repaid under this section. (e) Computation of time. (f) Additional repayments. (g) Newly-discovered assets. (h) Limit on repayment. (i) Petitions for rehearing; stays pending appeal. [56 FR 35924, July 29, 1991, as amended at 60 FR 31878, June 16, 1995] § 9007.3 Extensions of time. (a) It is the policy of the Commission that extensions of time under 11 CFR part 9007 will not be routinely granted. (b) Whenever a candidate has a right or is required to take action within a period of time prescribed by 11 CFR part 9007 or by notice given thereunder, the candidate may apply in writing to the Commission for an extension of time in which to exercise such right or take such action. The candidate shall demonstrate in the application for extension that good cause exists for his or her request. (c) An application for extension of time shall be made at least 7 calendar days prior to the expiration of the time period for which the extension is sought. The Commission may, upon a showing of good cause, grant an extension of time to a candidate who has applied for such extension in a timely manner. The length of time of any extension granted hereunder shall be decided by the Commission and may be less than the amount of time sought by the candidate in his or her application. If a candidate seeks an extension of any 60-day response period under 11 CFR part 9007, the Commission may grant no more than one extension to that candidate, which extension shall not exceed 15 days. (d) If a candidate fails to seek an extension of time, exercise a right or take a required action prior to the expiration of a time period prescribed by 11 CFR part 9007, the Commission may, on the candidate's showing of excusable neglect: (1) Permit such candidate to exercise his or her right(s), or take such required action(s) after the expiration of the prescribed time period; and (2) Take into consideration any information obtained in connection with the exercise of any such right or taking of any such action before making decisions or determinations under 11 CFR part 9007. [56 FR 35924, July 29, 1991, as amended at 60 FR 31880, June 16, 1995] § 9007.4 Additional audits. In accordance with 11 CFR 104.16(c), the Commission, pursuant to 11 CFR 111.10, may upon affirmative vote of four members conduct an audit and field investigation of any committee in any case in which the Commission finds reason to believe that a violation of a statute or regulation over which the Commission has jurisdiction has occurred or is about to occur. § 9007.5 Petitions for rehearing; stays of repayment determinations. (a) Petitions for rehearing. (i) Be filed within 20 calendar days following service of the Commission's repayment determination or final determination; (ii) Raise new questions of law or fact that would materially alter the Commission's repayment determination or final determination; and (iii) Set forth clear and convincing grounds why such questions were not and could not have been presented during the original determination process. (2) If a candidate files a timely petition under this section challenging a Commission repayment determination, the time for repayment will be suspended until the Commission serves notice on the candidate of its determination on the petition. The time periods for making repayment under 11 CFR 9007.2(d) shall apply to any amounts determined to be repayable following the Commission's consideration of a petition for rehearing under this section. (b) Effect of failure to raise issues. (c) Stay of repayment determination pending appeal. (ii) A request for a stay shall be made in writing and shall be filed within 30 calendar days after service of the Commission's decision on a petition for rehearing under paragraph (a) of this section or, if no petition for rehearing is filed, within 30 calendar days after service of the Commission's repayment determination under 11 CFR 9007.2(c). (2) The Commission's approval of a stay request will be conditioned upon the candidate's presentation of evidence in the stay request that he or she: (i) Has placed the entire amount at issue in a separate interest-bearing account pending the outcome of the appeal and that withdrawals from the account may only be made with the joint signatures of the candidate or his or her agent and a Commission representative; or (ii) Has posted a surety bond guaranteeing payment of the entire amount at issue plus interest; or (iii) Has met the following criteria: (A) He or she will suffer irreparable injury in the absence of a stay; and, if so, that (B) He or she has made a strong showing of the likelihood of success on the merits of the judicial action. (C) Such relief is consistent with the public interest; and (D) No other party interested in the proceedings would be substantially harmed by the stay. (3) In determining whether the candidate has made a strong showing of the likelihood of success on the merits under paragraph (c)(2)(iii)(B) of this section, the Commission may consider whether the issue on appeal presents a novel or admittedly difficult legal question and whether the equities of the case suggest that the status quo should be maintained. (4) All stays shall require the payment of interest on the amount at issue. The amount of interest due shall be calculated from the date 30 days after service of the Commission's repayment determination under 11 CFR 9007.2(c)(4) and shall be the greater of: (i) An amount calculated in accordance with 28 U.S.C. 1961 (a) and (b); or (ii) The amount actually earned on the funds set aside under this section. [56 FR 35924, July 29, 1991, as amended at 60 FR 31880, June 16, 1995] § 9007.6 Stale-dated committee checks. If the committee has checks outstanding to creditors or contributors that have not been cashed, the committee shall notify the Commission. The committee shall inform the Commission of its efforts to locate the payees, if such efforts have been necessary, and its efforts to encourage the payees to cash the outstanding checks. The committee shall also submit a check for the total amount of such outstanding checks, payable to the United States Treasury. § 9007.7 Administrative record. (a) The Commission's administrative record for final determinations under 11 CFR 9004.9 and 9005.1, and for repayment determinations under 11 CFR 9007.2, consists of all documents, records, and materials submitted to the Commission for its consideration in making those determinations. The administrative record will include the certification of the Commission's vote(s), the audit report that is sent to the committee (for repayment determinations), the statement(s) of reasons, and the candidate agreement. The committee may include documents, records, or materials in the administrative record by submitting them within the time periods set forth at 11 CFR 9004.9(f)(2)(ii), 9005.1(b)(2), 9005.1(c)(4), 9007.1(c) and 9007.2(c)(2), as appropriate. (b) The Commission's administrative record for determinations under 11 CFR 9004.9, 9005.1 and 9007.2 does not include: (1) Documents and materials in the files of individual Commissioners or employees of the Commission that do not constitute a basis for the Commission's decisions because they were not circulated to the Commission and were not referenced in documents that were circulated to the Commission; (2) Transcripts or audio recordings of Commission discussions other than transcripts or audio recordings of oral hearings pursuant to 11 CFR 9007.2(c)(2), although such transcripts or recordings may be made available under 11 CFR parts 4 or 5; or (3) Documents properly subject to privileges such as an attorney-client privilege, or items constituting attorney work product. (c) The administrative record identified in paragraph (a) of this section is the exclusive record for the Commission's determinations under 11 CFR 9004.9, 9005.1 and 9007.2 [60 FR 31880, June 16, 1995, as amended at 89 FR 220, Jan. 2, 2024]