[Code of Federal Regulations]
[Title 11, Volume 1]
[Revised as of January 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 11CFR9038.5]

[Page 370-371]
 
                       TITLE 11--FEDERAL ELECTIONS
 
                 CHAPTER I--FEDERAL ELECTION COMMISSION
 
PART 9038_EXAMINATIONS AND AUDITS--Table of Contents
 
Sec.  9038.5  Petitions for rehearing; stays of repayment determinations.

    (a) Petitions for rehearing. (1) Following the Commission's final 
determination under 11 CFR 9033.10 or 9034.5(g) or the Commission's 
repayment determination under 11 CFR 9038.2(c), the candidate may file a 
petition for rehearing setting forth the relief desired and the legal 
and factual basis in support. To be considered by the Commission, 
petitions for rehearing must:
    (i) Be filed within 20 calendar days after service of the 
Commission's final determination or repayment determination;
    (ii) Raise new questions of law or fact that would materially alter 
the Commission's final determination or repayment 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 
of the amount at issue 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 9038.2(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. The candidate's failure to 
raise an argument in a timely fashion during the original determination 
process or in a petition for rehearing under this section, as 
appropriate, shall be deemed a waiver of the candidate's right to 
present such arguments in any future stage of proceedings including any 
petition for review filed under 26 U.S.C. 9041(a). An issue is not 
timely raised in a petition for rehearing if it could have been raised 
earlier in response to the Commission's original determination.
    (c) Stay of repayment determination pending appeal. (1)(i) The 
candidate may apply to the Commission for a stay of all or a portion of 
the amount determined to be repayable under this section or under 11 CFR 
9038.2 pending the candidate's appeal of that repayment determination 
pursuant to 26 U.S.C. 9041(a). The repayment amount requested to be 
stayed shall not exceed the amount at issue on 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 
9038.2(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:

[[Page 371]]

    (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 9038.2(c) 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 35945, July 29, 1991, as amended at 60 FR 31887, June 16, 1995]