35088 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

(2), provide written notice of

disqualification to his supervisor and

counselor upon determining that he will

not participate in the matter.

(b) Disqualification to ensure

impartiality. A DOE employee who is

required, in accordance with 5 CFR

2635.502(e), to disqualify himself from

participation in a particular matter

involving specific parties to which he

has been assigned shall,

notwithstanding the guidance in 5 CFR

2635.502(e)(1) and (2), provide written

notice of disqualification to his

supervisor and counselor upon

determining that he will not participate

in the matter.

(c) Disqualification from matter

effecting prospective employers. A DOE

employee who is required, in

accordance with 5 CFR 2635.604(a), to

disqualify himself from participation in

a particular matter to which he has been

assigned shall, notwithstanding the

guidance in 5 CFR 2635.604(b) and (c),

provide written notice of

disqualification to his supervisor and

counselor upon determining that he will

not participate in the matter.

(d) Withdrawal of notification. A DOE

employee may withdraw written notice

under paragraphs (a), (b), or (c) of this

section upon deciding that

disqualification from participation in

the matter is no longer required. A

withdrawal of notification shall be in

writing and provided to the employee’s

supervisor and counselor.

§ 3301.103 Prior approval for outside

employment.

(a) Prior approval requirement. Before

engaging in any outside employment,

whether or not for compensation, an

employee, other than a special

Government employee, must obtain

written approval of his immediate

supervisor and the Counselor. Requests

for approval shall include the name of

the person, group or organization for

whom the work is to be performed; the

type of work to be performed; and the

proposed hours of work and

approximate dates of employment.

(b) Standard for approval. Approval

shall be granted unless there is a

determination that the outside

employment is expected to involve

conduct prohibited by statute or Federal

regulation, including 5 CFR part 2635.

(c) Definition of employment. For

purposes of this section, ‘‘employment’’

means any form of non-Federal

employment or business relationship

involving the provision of personal

services by the employee. It includes

but is not limited to personal services as

an officer, director, trustee, general

partner, agent, attorney, consultant,

contractor, employee, advisor, or

teacher. It does not include participating

in the activities of a nonprofit,

charitable, religious, public service or

civic organization, unless such activities

involve the provision of professional

services or are for compensation.

TITLE 10—ENERGY

Chapter X—Department of Energy

(General Provisions)

2. 10 CFR part 1010 is revised to read

as follows:

PART 1010—CONDUCT OF

EMPLOYEES

Sec.

1010.101 General.

1010.102 Cross-reference to employee

ethical conduct standards and financial

disclosure regulations.

1010.103 Reporting wrongdoing.

1010.104 Cooperation with the Inspector

General.

1010.105 Conflict of interest waiver.

Authority: 5 U.S.C. 301, 303; 5 U.S.C. App.

(Inspector General Act of 1978); 18 U.S.C.

208; and E.O. 12674, 54 FR 15159, 3 CFR,

1989 Comp., p. 215, as modified by E.O.

12731, 55 FR 42547, 3 CFR, 1990 Comp., p.

306.

§ 1010.101 General.

This part applies to employees of the

Department of Energy (DOE), excluding

employees of the Federal Energy

Regulatory Commission.

§ 1010.102 Cross-reference to employee

ethical conduct standards and financial

disclosure regulations.

Employees of DOE are subject to the

Standards of Ethical Conduct for

Employees of the Executive Branch at 5

CFR part 2635, the DOE regulation at 5

CFR part 3301 which supplements the

executive branch-wide standards, the

executive branch-wide financial

disclosure regulations at 5 CFR part

2634, and the executive branch-wide

employee responsibilities and conduct

regulation at 5 CFR part 735.

§ 1010.103 Reporting wrongdoing.

(a) Employees shall, in fulfilling the

obligation of 5 CFR 2635.101(b)(11),

report fraud, waste, abuse, and

corruption in DOE programs, including

on the part of DOE employees,

contractors, subcontractors, grantees, or

other recipients of DOE financial

assistance, to the Office of Inspector

General or other appropriate Federal

authority.

(b) All alleged violations of the ethical

restrictions described in section

1010.102 that are reported in

accordance with (a) of this section to an

appropriate authority within the

Department shall in turn be referred by

that authority to the designated agency

ethics official or his delegatee, or the

Inspector General.

§ 1010.104 Cooperation with the Inspector

General.

Employees shall respond to questions

truthfully under oath when required,

whether orally or in writing, and must

provide documents and other materials

concerning matters of official interest.

An employee is not required to respond

to such official inquiries if answers or

testimony may subject the employee to

criminal prosecution.

§ 1010.105 Conflict of interest waiver.

If a financial interest arises from

ownership by an employee, or other

person or enterprise referred to in 5 CFR

2635.402(b)(2), of stock in a widely

diversified mutual fund or other

regulated investment company that in

turn owns stock in, or bonds of, another

enterprise, that financial interest is

exempt from the prohibition of 5 CFR

2635.402(a).

[FR Doc. 96–17115 Filed 7–3–96; 8:45 am]

BILLING CODE 6450–01–P

OFFICE OF PERSONNEL

MANAGEMENT

5 CFR Part 734

RIN 3206–AH33

Political Activities of Federal

Employees

AGENCY: Office of Personnel

Management.

ACTION: Final rule.

SUMMARY: The Office of Personnel

Management (OPM) is issuing final

regulations regarding the political

activity of Federal employees. These

regulations will inform Federal

employees of the political activities

which are permitted and prohibited

under the Hatch Act Reform

Amendments of 1993. Covered

employees also should refer to OPM’s

interim regulations as part 733,

published in the Federal Register in the

February 4, 1994 edition, which

specifically address political activities

connected with local elections in

designated communities.

EFFECTIVE DATE: August 5, 1996.

FOR FURTHER INFORMATION CONTACT:

Jo-Ann Chabot at (202) 606–1700.

SUPPLEMENTARY INFORMATION: On

October 6, 1993, the President signed

the Hatch Act Reform Amendments of

1993. The Reform Amendments became
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35089

effective on February 3, 1994 and OPM

has the authority to issue regulations

under the Reform Amendments. On

September 23, 1994, OPM issued

interim regulations with a request for

comments at part 734 concerning the

political activities that generally are

permitted and prohibited to Federal

employees. OPM received comments

from nine Federal agencies, two Federal

employee labor organizations, and an

individual before the comment period

closed on November 22, 1994. OPM’s

observations about the comments follow

the numerical order of the regulations

starting at subpart A and ending with

subpart G.

Comment on Supplementary

Information Preceding the OPM Interim

Regulations

One Federal agency commented that

the supplementary information

preceding OPM’s interim regulations

requires clarification of the language

which makes it appear that § 734.208

applies exclusively to Federal

employees who belong to a Federal

employee labor organization. The

agency noted that the language of

§ 734.208 clearly shows that the

requirement of belonging to a Federal

employee labor organization, or other

Federal employee organization, applies

only to the fundraising activities

described in § 734.208(b)(4). OPM

agrees. Every employee who is covered

under subparts B and C of part 734 may

participate in the activities described in

§ 734.208 (a) and (b) (1) through (3). The

activities described in § 734.208(b)(4)

are limited to members of the Federal

employee labor organizations and

Federal employee organizations that

meet the requirements of 5 U.S.C.

7323(a)(2) and 5 CFR 734.103. Sections

734.404(c)–(d) and 734.410 describe

permitted and prohibited fundraising

activities for employees covered under

subpart D.

Subpart A—General Provisions

Section 734.101 of the interim

regulations provides definitions for

certain terms used throughout the

regulations. The regulations define

‘‘accept’’ and ‘‘receive’’ as the acts of

accepting or receiving something from a

person officially on behalf of a

candidate, a campaign, a political party,

or a partisan political group. One

Federal agency and one Federal

employee labor organization

commented that the language from the

supplementary material preceding the

interim regulations which noted that

‘‘ministerial activities preceding or

following the official acceptance and

receipt are not covered under the

definitions’’ should be added to the

definitions. OPM agrees that adding

such language to the definitions of

‘‘accept’’ and ‘‘received’’ clarifies the

definitions and has made the suggested

changes.

OPM also received two comments on

the definition of ‘‘on duty’’ in § 734.101.

A Federal agency commented that the

definition should contain language from

the supplementary material preceding

the interim regulations noting that it is

not appropriate to grant excused

absence (administrative leave) to

participate in political activities. This

agency also noted that the definition

should note that it is not appropriate to

request sick leave in order to participate

in political activity. While OPM has the

authority to regulate a covered

employee’s partisan political activity,

the granting of excused absence is a

matter of agency discretion. However,

an agency’s decision to grant excused

absences for the purposes of engaging in

partisan political activities or partisan

political management would not be

appropriate. Indeed, granting excused

absences solely for the purposes of

participation in partisan political

activities might be a violation of the

prohibitions against use of official

authority or influence to interfere with

or affect the results of an election. In

addition, 5 U.S.C. 6307 and OPM’s

regulations at 5 CFR 630.401 prescribe

the conditions under which an

employee may use sick leave. It is not

appropriate to permit the use of sick

leave to participate in partisan political

activities. Sick leave should be granted

only under the conditions prescribed by

5 U.S.C. 6307 and 5 CFR 630.401.

Citing Bureau of Alcohol, Tobacco

and Firearms v. Federal Labor Relations

Authority, 464 U.S. 89, 105 (1983), a

Federal employee labor organization

commented that the definition of ‘‘on

duty’’ should exclude ‘‘official time’’

given to employees who are labor

organizations officials because

employees on ‘‘official time’’ are not

considered to be in duty status, except

for purposes of being paid. Thus, the

labor organization noted that, as a

matter of statutory construction, official

time is simply not time ‘‘on duty.’’ The

Supreme Court concluded in this

decision that Federal employees who

negotiate on behalf of a labor

organization are not conducting official

business on behalf of the Government.

However, the Supreme Court reached

this conclusion for the limited purpose

of determining whether Federal

employees who represent their labor

unions in collective bargaining with

agencies are entitled to reimbursement

from the Government for travel and per

diem expenses.

Citing National Federation of Federal

Employees and U.S. Department of

Veterans Affairs, 47 FLRA 1118, 1124,

(1993) (NFFE) and American Federation

of Government Employees and U.S.

Department of Labor, 39 FLRA 546, 553

(1991), (AFGE), the labor organization

also noted that the Federal Labor

Relations Authority (FLRA) has

sanctioned the use of official time for

union representatives to lobby Congress

concerning working conditions. NFFE

concerned a collective bargaining

proposal to authorize the use of a

reasonable amount of time as official

time under 5 U.S.C. 7131(d) to lobby

members of Congress in support of or

opposition to pending or desired

legislation which would affect the

working conditions of employees

represented by the union. The FLRA

found that 5 U.S.C. 7102 contemplates

that employees will express their views

to Congress through their exclusive

representative, and specifically grants

employees functioning as labor

representatives the right to present the

views of the labor organization to

Congress. It also found that the proposal

concerned labor-management relations

activities for which official time is

authorized under section 7131(d).

Although the FLRA concluded that the

proposal was negotiable under section

7131(d), the FLRA reached its decision

within the context of petitioning

Congress regarding nonpartisan issues

that generally affect employees’ working

conditions. It did not determine

whether these statutory provisions also

provide for official time to participate in

partisan political activities on behalf of

individuals who are candidates for

partisan political office.

AFGE concerns an agency denial of an

employee’s request to use an agency

automobile and to use official time for

travel to and from a hearing regarding

his claim for workers’ compensation.

The FLRA held that 5 U.S.C. 7131(d)

did not preclude the parties in the case

from agreeing to provide for official time

in circumstances unrelated to labormanagement relations activities,

provided that granting such official time

was consistent with the statute and

other applicable laws and regulations.

The FLRA cited attendance at hearings

before the Equal Employment

Opportunity Commission and

responding to discovery requests in

cases before the Merit Systems

Protection Board as examples of

circumstances unrelated to labormanagement relations activities where

use of official time might be authorized.

Thus, this decision clearly was made
35090 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

within the context of prehearing for and

appearing at administrative hearings on

behalf of employees, and does not

address the use of official time to

participate actively in partisan political

activities.

The Federal Service LaborManagement Relations Statute (Labor

Statute), at 5 U.S.C. 7101(a)(1)(A)

provides that statutory protection of

employee rights to organize, bargain

collectively, and participate through

labor organizations in decisions which

affect them safeguard the public

interest. It also provides at section 7102

that employees who represent labor

organizations are entitled to present

labor organization views to Congress in

connection with matters regarding

conditions of employment. However,

none of the provisions in chapter 71 of

title 5, United States Code, concern

participation in partisan political

activities.

The Hatch Act Reform Amendments

of 1993, enacted subsequent to the

Labor Statute, specifically address

participation in partisan political

activities and permit Federal employees

to participate actively in most of the

partisan political activities that

previously had been prohibited to these

employees under the original Hatch Act.

In return for the opportunity for wider

political participation, the Reform

Amendments specifically prohibit

Federal employees from engaging in any

partisan political activities basically

while on duty or on Federal premises.

The intent of Congress in enacting the

Reform Amendments, a statute

specifically intended to govern the

partisan political activities of Federal

employees, controls the previously

enacted provisions on labormanagement, at 5 U.S.C. Chapter 71,

which clearly do not permit Federal

employees to participate in partisan

political activities while they are on

duty or on Federal premises, and do not

even address participation in partisan

political activities. In contrast, the

Reform Amendments, at 5 U.S.C.

7324(a), specifically prohibit most

Federal employees from such

participation and provide for only one

exemption from the prohibition. The

Reform Amendments, at 5 U.S.C.

7324(b), exempt employees whose

official duties and responsibilities

continue outside normal duty hours and

while away from the normal duty post,

and who are (1) paid from an

appropriation for the Executive Office of

the President, or (2) appointed by the

President, by and with the advice and

consent of the Senate, to positions that

are located within the United States and

involve determinations of policy to be

pursued by the United States in

relations with foreign powers or in the

nationwide administration of Federal

laws. If Congress had intended to

exempt other employees from the

prohibition, Congress clearly would

have provided for such exemptions in

the statute itself.

In addressing the question of whether

the Reform Amendments prohibit

Federal employees from making

voluntary salary allotments to political

action committees, an opinion issued by

the Office of Legal Counsel at the

Department of Justice to the Office of

Personnel Management on February 22,

1995, also discussed at length the

prohibitions against partisan political

participation on duty or on Federal

premises, and Congressional intent in

enacting it. The opinion stated:

It is evident from the statements of the

(Reform Amendments’) leading sponsors that

Congress intended to create a bright-line rule,

with no exceptions: Section 7324(a) prohibits

covered employees from engaging in all onduty and on-site political activity. As the

principal Senate sponsor of the bill states,

on-the-job political activity ‘‘would be

absolutely and unequivocally prohibited.’’

139 Cong. Rec. S8605 (daily ed. July 13,

1993) (statement of Senator Glenn). Thus, for

example Congress intended to prohibit the

wearing of political buttons on duty. Nor can

covered employees stuff envelopes with

political materials or send out campaign

materials while they are on the job or in a

federal building—such activities are

permitted only off-site and ‘‘off the job.’’

Thus, Congress clearly intended to

prohibit partisan political participation

on duty, and on Federal premises, and

exempted only one category of

employees from these prohibitions.

Consequently, for the purposes of the

Reform Amendments, OPM cannot

define ‘‘on duty’’ to exclude ‘‘official

time,’’ as that term is defined in the

Labor Statute.

In this connection, Example 5 in

§ 734.306 of the interim regulations,

which issued September 23, 1994 (59

FR 48756, 48773–48774), provides that

employees who are not on duty may

engage in political activity in the office

of their labor organization even if the

space is provided by an agency or

instrumentality of the United States

Government. In view of the Office of

Legal Counsel opinion of February 22,

1995, a subsequent intervening event,

OPM found it necessary to revisit its

initial review of the statutory scheme

established through the Reform

Amendments. Based on this further

review, OPM has concluded that the

Reform Amendments require it to treat

the questions of time and space

consistently in considering the activities

which the Reform Amendments permit

and prohibit. Moreover, it is clear both

from OPM’s statutory review and the

Office of Legal Counsel opinion of

February 22, 1995, that Congress

intended to create a bright line

prohibition against partisan political

activities when conducted on duty or on

Federal premises, or both.

Consequently, OPM must remove

Example 5 from § 734.306 of the interim

regulations.

A Federal agency commented that the

definition of ‘‘political purpose’’ should

include non-partisan political purposes

because many political purposes are

non-partisan. In the interim regulations,

the definition of ‘‘political activity’’ is

limited to partisan political activity

because OPM has interpreted the

Reform Amendments as restricting

Federal employees’ participation in

partisan political activities. The

legislative history of the Reform

Amendments shows that Congress was

well aware that the Hatch Act

prohibited active participation in

partisan political activities and, in

enacting the Reform Amendments,

Congress was referring to partisan

purposes and activities when referring

to a political purpose or political

activity. S. Rep. No. 57, 103rd Cong. 1st

Sess. 2–6, 13–14, 24–39 (1993); 139

Cong. Rec. S8605–8606 (daily ed. July

13, 1993) (statement of Senator Glenn);

id. at S8685–8686 (daily ed. July 14,

1993) (statement of Senator Roth); id. at

S8701–8703 (daily ed. July 14, 1993)

(statement of Senator Stevens); id. at

S8946 (daily ed. July 20, 1993)

(statement of Senator Durenberger); id.

at S8947–8948 (daily ed. July 20, 1993)

(statement of Senator Levin). See H.R.

Rep. No. 16, 103rd Cong. 1st Sess. 16

(1993) (to accompany H.R. 20).

President Clinton’s remarks on signing

the Reform Amendments, delivered

October 6, 1993, the day on which he

signed the Reform Amendments, reflect

his understanding that the terms

‘‘political purpose’’ and ‘‘political

activity’’ refer to partisan political

purposes and partisan political

activities. He stated:

The Federal Employees Political Activities

Act, which I’m about to sign, will permit

Federal employees and postal workers on

their own time to manage campaigns, raise

funds, to hold positions within political

parties. Still, there will be some reasonable

restrictions. They wouldn’t be able to run for

partisan political office themselves, for

example, and there will be some new

responsibilities, which I applaud the Federal

employees’ unions for embracing and

supporting.

While we restore political rights to these

millions of citizens, we also hold them to

high standards. The Federal workplace,

where the business of our Nation is done will
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35091

still be strictly off limits to partisan political

activity.

Therefore, defining ‘‘political

purpose’’ as a partisan political purpose

is consistent with other definitions in

the regulations, Congressional intent as

reflected in the legislative history of the

Reform Amendments, and President

Clinton’s understanding of the term

‘‘political activities’’ as reflected in his

remark on signing the Reform

Amendments.

Two Federal agencies and one Federal

labor union commented that the interim

regulations do not provide enough

guidance concerning a ‘‘room or

building occupied in the discharge of

official duties by an individual

employed or holding office in the

Government of the United States or any

agency or instrumentality thereof.’’ The

Federal labor organization noted that

the regulations did not specify which

areas in a ‘‘room or building * * * ’’

encompasses. Another Federal agency

noted that the regulations did not

address use of areas such as recreational

space in leased space or cafeterias,

hallways, restrooms and employee

lounges. In response to these comments,

OPM has added a definition of ‘‘room or

building occupied in the discharge of

official duties by an individual

employed or holding office in the

Government of the United States or any

agency or instrumentality thereof.’’

The definition specifically excludes

those rooms in the White House which

are part of the Residence area or which

are not regularly used solely in the

discharge of official duties. This

exclusion is based on the January 17,

1979, opinion of the Office of the Legal

Counsel of the Department of Justice.

The same principles that govern the

White House also would apply to the

residence of the Vice President which,

historically, has been treated like the

White House. Therefore, the same

analysis and conclusions that apply to

the White House also apply to the

residence of the Vice President.

The Federal labor organization further

commented that political activities in

areas defined as ‘‘public areas’’ in the

General Services Administration’s

(GSA’s) Federal Property Management

Regulations should not be prohibited

because GSA’s regulations create a

protected public forum. OPM sought

comment from GSA on the issue of

‘‘public areas’’. GSA noted that ‘‘public

areas’’ remain ‘‘rooms or buildings’’

even when in use by the public for

cultural, recreational, or educational

activities governed by the Cooperative

Use Act of 1976, 40 U.S.C. 490(a)(17), as

implemented in the Federal Property

Management Regulations at 41 CFR

subpart 101–20.4. GSA provided that

the Cooperative Use Act and the Reform

Amendments should be read together.

Accordingly, the definition of ‘‘room or

building’’ incorporates the definition of

‘‘public area’’ in 40 U.S.C. 490(a)(17)

and 41 CFR 101–20.003.

OPM also sought comments on this

issue from the United States Office of

Special Counsel (OSC), which noted

that the GSA regulations at 41 CFR 101–

20.003 define ‘‘public areas’’ as any

areas of a building under the control

and custody of GSA which ordinarily

are open to the public, such as lobbies,

meeting rooms, auditoriums, and

similar areas not assigned to a lessee or

occupant. OSC stated its belief that

permitting political activities ‘‘in such

generally defined areas could lead to

confusion and enforcement problems in

trying to determine what parts of

buildings remain ‘off limits’ for such

activity.’’ It noted further that ‘‘allowing

political activity in a hallway and

courtyard but not a conference room, or

in an auditorium but not a cafeteria,

could result in confusing and possibly

unenforceable interpretations.’’

Moreover, the Supreme Court noted

in Cornelius v. NAACP Legal Defense

and Education Fund, Inc., 47 U.S. 788,

802–903 (1985), a designated public

forum is created in a Federal office

building, or any other government

property, only when there is a ‘‘clear

intent to dedicate the property for

assembly, debate and speech.’’ The

Cooperative Use Act does not dedicate

every public building as a public forum,

but only authorizes the GSA

Administrator to make certain spaces

available ‘‘on occasion’’ and ‘‘on such

other terms and conditions as the

Administrator deems to be in the public

interest’’ if such use ‘‘will not disrupt

the operation of the building.’’ In

Cornelius, the Supreme Court held that

it will not ‘‘infer that the government

intended to create a public forum when

the nature of the property is

inconsistent with expressive activity’’

and is reluctant to find a ‘‘designated

public forum,’’ if expressive activity

would disrupt the principal function of

the property. Id. at 803–804. In addition,

in Greer v. Spock, 424 U.S. 828, 831–

836 (1976) the Court held that allowing

some speech or expressive activity in a

forum does not dedicate the property as

a ‘‘public forum’’ for free and

uninhibited expressive activity by the

public. Accordingly, ‘‘public areas’’ are

not ‘‘public fora’’ and employees are

prohibited from engaging in partisan

political activity in those areas. In view

of this, OPM has deleted Example 11

from § 734.306 which provides that a

Federal employee may engage in

political activity in the courtyard

outside of a Federal building when the

employee is not on duty.

One Federal agency commented that

the regulations did not specify whether

an area leased to contractors such as a

cafeteria or fitness facility is a ‘‘room or

building * * * .’’. Pursuant to the

discussion above, we have added an

example in § 734.306 providing that

employees may not engage in partisan

political activity in space leased to

contractors in Federal buildings.

Regarding § 734.306 of the interim

regulations, a Federal labor organization

commented that the regulations imply

that the prohibition on political

activities in rooms or buildings

occupied in the discharge of official

duties does not extend to areas not

controlled by the Government, such as

union offices and the leased offices of

candidates. The labor organization

suggested modifying Example 5 in

§ 734.306 to state that political activity

is permitted in space, such as meeting

rooms or other facilities, temporarily

under the control of labor organizations

or other non-government entities. In

view of the Reform Amendments’

prohibition against partisan political

participation on Federal property, and

the Office of Legal Counsel’s

interpretation of that prohibition, as

described in the discussion relating to

the definition of the item ‘‘on duty’’ in

§ 734.101, OPM must remove this

example from § 734.306.

A Federal employee labor

organization commented that the

definition of ‘‘subordinate’’ in the

interim regulations would suggest that it

includes more categories of employees

than the definitions of the terms

‘‘supervisor’’ and ‘‘management official’’

in 5 U.S.C. 7103(10) and (11). This

organization suggested that, rather than

defining the term ‘‘subordinate,’’ the

regulations use the definition of

‘‘supervisor’’ in 5 U.S.C. 7103(10),

because the definition of ‘‘supervisor’’ is

familiar to many Federal employees.

The interim regulations define

‘‘subordinate’’ as ‘‘the relationship

between two employees when one

employee is under the supervisory

authority, control or administrative

direction of the other employee.’’ OPM

believes that the definition of

‘‘subordinate’’ is clear and relects the

intent of Congress to prevent any

coercion of subordinate employees by a

supervisor or any other employee who

may otherwise direct, control or

exercise authority over an employee.

Section 734.102 outlines the authority

of the Office of Personnel Management,

the Office of Special Counsel, and the
35092 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

Merit Systems Protection Board under

the Reform Amendments and the

implementing regulations. One Federal

employee labor organization

commented that this section should cite

to the Reform Amendments as the

underlying authority. OPM agrees and

has added these citations.

One Federal agency and one Federal

employee labor organization

commented that the regulations do not

specify whether the Office of Special

Counsel and the Merit Systems

Protection Board have exclusive

jurisdiction. OPM agrees that the

regulations need clarification.

Individual agencies do not have

authority to investigate suspected

political activity violations or to impose

administrative remedies. Therefore,

OPM is changing the regulations to

reflect that the Office of Special Counsel

and the Merit Systems Protection Board

have exclusive jurisdiction.

Section 734.104 prohibits further

restriction on the political activities of

covered employees except for

employees who are appointed by the

President by and with the advice and

consent of the Senate, employees who

are appointed by the President, noncareer Senior Executive Service

members, Schedule C employees

(appointed pursuant to 5 CFR 213.3301,

213.3302) and any other employees who

serve at the pleasure of the President. A

Federal agency suggested adding a new

subsection to cover United States

Trustees appointed under 28 U.S.C. 581.

The exceptions in § 734.104 are based

upon a September 20, 1994 opinion of

the Office of Legal Counsel of the

Department of Justice issued to the

Office of Personnel Management which

provided that an Administration could

impose additional restrictions on the

specific groups of political appointees

outlined in § 734.104. Accordingly, the

President or his designee may further

restrict the political activities of the

specific employees described in

§ 734.104. However, pursuant to 28

U.S.C. 581, United States Trustees serve

at the pleasure of the Attorney General,

not the President, and do not fall within

the exceptions provided by the Office of

legal counsel Opinion. therefore, OPM

does not have the authority to add the

United States Trustees to the list in

§ 734.104.

Subpart B—Permitted Activities

Section 734.203 of the interim

regulations permits employees under

subpart B (Permitted Activities) to

participate in nonpartisan political

activities and describes various

nonpartisan activities. A Federal

employee labor organization noted that

§ 734.203 fails to reflect that 5 U.S.C.

7211 provides Federal employees with a

statutory right to petition Congress. It

further commented that this issue is

confusing to Federal employees, and

suggested adding another example to

§ 734.203 which illustrates that the

Reform Amendments do not prohibit

Federal employees from exercising their

rights under 5 U.S.C. 7211. OPM agrees

with this suggestion, and has added

such an example to § 734.203.

Section 734.204 of the interim

regulations concerns permitted

participation in political organizations.

A Federal agency suggested amending

this section by adding another

paragraph which specifies that an

employee may serve as a delegate,

alternate, or proxy to a political party

convention. OPM agrees with this

suggestion and has added such a

paragraph to § 734.204.

Example 2 in § 734.204 specifies that

an employee may serve as an officer of

a partisan or nonpartisan political

action committee, as long as the

employee does not personally solicit,

accept, or receive political

contributions. A Federal employee labor

organization suggested clarifying the

example by stating that ministerial

activities which precede or follow the

official acceptance and receipt of

contributions are not covered under the

regulatory definitions of ‘‘accept’’ and

‘‘receive.’’ OPM agrees with this

suggestion and has amended Example 2

accordingly. Example 2 also describes a

political action committee as partisan or

nonpartisan. This description does not

accord with the definition of political

action committee that OPM has added

to its political activity regulations at 5

CFR part 734. The definition of this

term does not distinguish between

partisan and nonpartisan political

action committees. Therefore, OPM has

further amended Example 2 by

removing the descriptive terms

‘‘partisan’’ and ‘‘nonpartisan.’’

Section 734.205 of subpart B

(Permitted Activities) describes

permissible political activities

connected with participation in

campaigns for partisan political office.

Example 5 in this section specifies that

an independent contractor is not

covered under subpart B and may

display a political button while

performing his contractual duties. A

Federal employee labor organization

submitted several comments concerning

the display of political buttons by

employees who are covered under

subpart B. OPM has discussed those

comments in connection with its

discussion of § 734.306, infra, which

prohibits partisan political participation

while on duty, in uniform, in any room

or building occupied in the discharge of

official duties, or while using a

Government-owned or leased vehicle.

Section 734.207 concerns candidacy

for public office and permits employees

to run as independent candidates in the

local partisan elections described in 5

CFR part 733, or as candidates in

nonpartisan elections. A Federal agency

proposed that OPM add an example to

this provision specifying that employees

may distribute campaign leaflets, even

though the leaflets include information

on where to send contributions. The

Federal agency further noted that the

example also should specify that the

employee should refer to another

campaign worker any questions

concerning further information about

contributions. OPM agrees with this

suggestion, but has provided in the

example that such questions should be

referred to another campaign worker

who is not a Federal employee. OPM

also believes that it would be more

appropriate to add the example to

§ 734.205, which concerns participation

in campaigns for partisan political

office, rather than to § 734.207.

Section 734.208 describes permissible

activities connected with participation

in fundraising. Subsection (b)(2) permits

employees to accept and receive

political contributions in a partisan

election described in 5 CFR part 733,

which pertains to the political activities

of covered employees who reside in

certain localities designated by OPM. A

Federal agency stated its belief that

subsection (b)(2) conflicts with the

statutory definition of the term

‘‘political contribution’’ included in

section 2(a) of the Reform Amendments

and codified at 5 U.S.C. 7322(3), as

amended, which does not refer to

contributions for ‘‘partisan’’ political

purposes. Therefore, the Federal agency

suggested deleting subsection (b)(2)

from § 734.208 of the OPM regulations.

Section 2(a) of the Reform

Amendments, codified at 5 U.S.C. 7325,

as amended, authorizes OPM to issue

regulations permitting employees,

‘‘without regard to the prohibitions in

paragraphs (2) and (3) of section 7323(a)

(of title 5, United States Code),’’ to take

an active part in certain local elections.

Section 7323(a)(2) and (3), respectively,

prohibit employees from knowingly

soliciting, accepting, or receiving

political contributions, and from

running ‘‘for the nomination or as a

candidate for election to a partisan

political office.’’ Candidacy for partisan

political office occurs within the context

of partisan political elections.

Accordingly, § 734.208(b)(2) of the OPM

regulations does not conflict with the
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35093

definition at 5 U.S.C. 7322(3), as

amended. Therefore, OPM has not

deleted § 734.208(b)(2) from the final

version of its regulations.

Section 734.208(b)(4)(ii) of the

regulations provides that, under

specified limited circumstances, an

employee may solicit, accept, or receive

political contributions from another

employee who is not a subordinate

employee. A Federal employers labor

organization suggested including in the

regulations the definition of the term

‘‘supervisor’’ stated at 5 U.S.C. 7103(10).

This suggestion already has been

addressed in the discussion of § 734.101

of the Regulations.

Example 5 in § 734.208 prohibits

employees from making telephone

solicitations for political contributions,

even anonymously. A Federal employee

labor organization noted that, if a

telephone solicitation truly was

anonymous, there would be no way of

finding the employee who might have

made the solicitation. The Federal

employee labor organization further

noted that a reference to anonymous

telephone solicitations might even

encourage employees to make such

solicitations. Consequently, it suggested

that OPM delete the reference to

anonymous telephone solicitions in

Example 5. OPM believes that this

reference makes it clear to Federal

employees that, except for solicitations

made under the circumstances

described in 5 U.S.C. 7323(a)(2),

solicitations of political contributions,

even anonymous telephone

solicitations, are prohibited under the

Reform Amendments. Therefore, OPM

will retain the reference to anonymous

telephone solicitations in Example 5.

Example 11 in § 734.208 provides that

a Federal employee may solicit, accept,

or receive the uncompensated volunteer

services of any individual, except a

subordinate employee, to work on

behalf of a partisan political candidate

or organization. A Federal employee

labor organizations suggested deleting

the phrase ‘‘except a subordinate

employee’’ from Example 11. The labor

organization said that the interim

regulations clearly specify that a

political contribution does not include

the uncompensated volunteer services

of an individual. Thus, the labor

organization did not find any basis for

the example prohibiting any employee

from soliciting the volunteer services of

another employee.

Although it is true that

uncompensated volunteer service of an

individual is not a political

contribution, OPM believes that

soliciting such services from

subordinate employees is covered under

§ 734.302, which prohibits employees

from using their official authority or

influence for the purpose of influencing

or affecting the results of an election.

OPM further believes that removing the

reference to subordinate employees in

Example 11 would mislead employees

into believing that part 734 permits

employees to solicit, accept ore receive

such services from subordinate

employees. Therefore, OPM has retained

the reference to subordinate employees

in Example 11.

The labor organization also said that

Example 11 is at odds with Example 4

in § 734.208, which permits employees

to sign letters soliciting the contribution

of uncompensated services of

individuals. It noted that, in a mass

mailing, an employee’s subordinates

might receive these letters. OPM agrees

that Example 4 is confusing and

requires clarification in this regard.

Therefore, it has revised Example 4 to

specify that an employee may not

knowingly send such a letter to his or

her subordinate employees. However,

Example 4 also will specify that it is

permissible to sign such letters as part

of a general mass mailing, as long as the

mailing is not specifically targeted to

one’s subordinate employees.

Another Federal employee labor

organization noted that employees who

are not members may contribute to the

labor organization’s political action

committee, but Federal employees

associated with the labor organization

may not accept or receive the

contribution. It suggested that § 734.208

might be clarified through an additional

example stating that a Federal employee

labor organization can receive

contributions, independent of their

receipt by Federally employed members

of the labor organization, and describing

procedures for making such

contributions. OPM believes that the

regulations clearly state that any

employee may contribute to the

multicandidate political action

committee of a Federal labor or Federal

employee organization, and that the

Federally employed members of such

organizations may not accept

contributions from Federal employees

who are not organization members.

Therefore, OPM believes that it is not

necessary to add the suggested example

to § 734.208.

Finally, the Reform Amendments

include an exception to the general

prohibition on soliciting, accepting, or

receiving political contributions. This

exception permits employees to solicit,

accept, or receive such contributions

from other employees who are not

subordinate employees and who are

members of the same Federal labor

organization or Federal employee

organization for the multicandidate

political committees of their

organizations. It may not be clear to

employees that this exception only

extends to the general prohibition

against soliciting, receiving, or

accepting political contributions. It does

not extend to the other prohibitions

against engaging in partisan political

activities either while on duty, or while

on Federal premises, or both. Thus,

employees may solicit, accept, and

receive political contributions for the

multicandidate political committees of

their organizations from employees who

are not subordinates and who belong to

the same Federal labor or employee

organization. However, they may not

conduct such activities either while

they are on duty, or while on Federal

premises, or both. Accordingly, OPM

has added an example to § 734.208 to

clarify this matter. In addition, OPM

notes that labor organizations certified

by the National Labor Relations Board

pursuant to 29 U.S.C. 151 et seq. to

represent Postal Service employees are

not covered under the definition of

‘‘labor organization’’ in 5 U.S.C. 7103(4)

and, therefore, are not Federal labor

organizations within the meaning of the

Reform Amendments. However, these

Postal Service labor organizations

clearly qualify as Federal employee

organizations for purposes of the Hatch

Act Reform Amendments.

Subpart C—Prohibited Activities

Section 734.302 prohibits employees

from using their official authority or

influence in order to interfere with or

affect the results of an election. A

Federal agency commented that this

section does not give adequate guidance

and needs to be clarified. The agency

noted that if the section intended to

prohibit misues or coercion that it did

not clearly do so. OPM agrees that the

Reform Amendments intended to

prevent employees from misusing their

official authority or influence in order to

interfere with or affect the result of an

election. OPM is revising its regulations

to clarify that § 734.302 not only

prohibits the misuse of official authority

such as the use of an official title, as

distinguished from a general form of

address such as ‘‘The Honorable,’’ while

participating in partisan political

activities, but also bans coercive actions

such as awarding contracts on the basis

of contributions to partisan political

campaigns or soliciting subordinates for

any partisan political purpose. OPM

notes in this regard that the merit

system principles, at 5 U.S.C.

2301(b)(8), provide that employees

should be protected against arbitrary
35094 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

action, personal favoritism, and

coercion for partisan political purposes.

Section 2301(b)(8) also provides that

employees should be prohibited from

using their official authority to interfere

with or affect an election or a

nomination for election. Moreover, 5

U.S.C. 2302(b)(3) makes it a prohibited

personal practice to coerce the political

activity of any person (including the

providing of any political contribution

or service), or to take action against an

employee for his or her refusal to

participate in these political activities.

Thus, soliciting uncompensated

volunteer services from a subordinate

for a political purpose clearly falls

within the prohibition against the use of

official authority to interfere with or

affect an election.

Accepting or receiving

uncompensated volunteer services from

a subordinate results in as great a

potential for coercion, or the appearance

of coercion, as soliciting such services

from a subordinate. Although an

employee might not directly solicit

uncompensated volunteer services from

a subordinate, he still could make it

clear to the subordinate in more subtle

ways that it would be in the

subordinate’s best interest to provide

such services. In view of a superior’s

authority to promote, discipline, issue

awards, or take other personnel actions

affecting an employee’s career, or to

make recommendations regarding such

actions to an official above him in the

chain of command, and the potential for

coercion that exists under such

circumstances, accepting and receiving

uncompensated volunteer services from

subordinates also falls within the

prohibition against the use of official

authority to interfere with or affect the

results of an election. Accordingly, OPM

will retain the prohibition against

accepting and receiving uncompensated

volunteer services from subordinates.

Section 734.303 describes prohibited

activities connected with fundraising.

Subsection (d) prohibits employees from

soliciting, accepting, or receiving

uncompensated volunteer services from

individuals who are subordinates. A

Federal employee labor organization

commented that, because the definition

of ‘‘political contribution’’ does not

include uncompensated volunteer

services, employees should not be

prohibited from soliciting, accepting, or

receiving such services from their

subordinates. For the reasons stated in

its discussion of § 734,302, supra, OPM

is retaining these prohibition in its

political activity regulation at part 734.

A Federal agency noted that the

regulations do not reflect specifically

that, as long as an employee is not

coerced, the employee may voluntarily

donate uncompensated volunteer

services to his supervisor. While OPM’s

regulations do not specifically prohibit

an employee from voluntarily donating

uncompensated volunteer services to

his supervisor, § 734.303(d) of the

regulations does prohibit a supervisor

from accepting such services. Therefore,

the concern expressed by this agency in

its comment has been adequately

addressed in the regulation.

This prohibition clearly would not

apply to requests for volunteer services

made by the President or the VicePresident to the employees specified in

5 U.S.C. 7324(b)(2) whose duties and

responsibilities continue outside of

normal duty hours and away from the

normal duty post, and who are (1) paid

from an appropriation for the Executive

Office of the President, or (2) appointed

by the President, by and with the advice

and consent of the Senate, whose

positions are located within the United

States and who determine policies to be

pursued by the United States in

relations with foreign powers or in the

nationwide administration of Federal

laws. Congress recognized their special

status in specifically excluding them

from the prohibitions against political

participation while on duty, in uniform,

on Federal premises, or using a

Government vehicle. Moreover, the

President and Vice-President of the

United States specifically are excluded

from the definition of employee in 5

U.S.C. 7322(1) and, therefore, they are

not subject to the prohibitions on

political activity in Reform

Amendments or part 734.

The agency also asked whether a

subordinate employee may speak at a

political event in place of his superior,

a PAS employee, when the PAS

employee suddenly learns that she

cannot attend the event. The regulations

generally permit covered employees to

speak at partisan political events, but

prohibit an employee who does not

qualify for coverage under subpart E of

the interim regulations from giving such

a speech while on duty.

However, the ultimate answer to such

questions depend on the facts and

circumstances in each individual case,

and also may involve issues related to

the standards of ethical conduct for

employees of the Executive Branch.

Therefore, OPM has determined not to

address in its regulatory examples the

issues raised in the agency’s comments,

because such examples might be

misleading. Individual detailed

guidance on such fact based issues

should be sought through an advisory

opinion from the United States Office of

Special Counsel and, if warranted, from

the designated agency ethics official at

the employee’s agency.

Example 2 in § 734.303 states that an

employee’s name may not appear on an

invitation to a fundraiser as a sponsor or

a point of contact. A Federal employee

labor organization commented that this

example appeared to be inconsistent

with Example 3 in § 734.208 which

permits employees’ names to appear on

such invitations as guest speakers. It

also commented that a point of contract

on an invitation for a fundraiser would

not necessarily be involved with

soliciting, accepting or receiving

political contributions in an official

manner. Thus, it suggested amending

Example 2 to provide that an

employee’s name could appear on an

invitation as a point of contact for

general information about a fundraiser.

OPM does not believe that these two

examples are inconsistent. A person

who is identified as a point of contact

on a fundraising invitation clearly gives

the appearance of being associated with

soliciting, accepting, or receiving

political contributions. Such is not the

case with a person who is only

identified on the invitation as a guest

speaker. Thus, OPM has decided not to

amend Example 2 in § 734.303.

Example 3 in § 734.303 provides that

an employee may not ask a subordinate

to volunteer on behalf of a partisan

political campaign. Section 734.303

describes fundraising activities which

are prohibited. A Federal employee

labor organization suggested that OPM

remove this example because individual

uncompensated volunteer services are

not political contributions. OPM has

addressed the question of requesting

subordinate employees to perform

uncompensated volunteer services in

§ 734.302, supra.

Section 734.305 prohibits an

employee from knowingly soliciting or

discouraging the political participation

of anyone who has matters pending

before the employee’s employing office

or of anyone who is the subject of

investigation or enforcement carried out

by the employee’s employing office. A

Federal agency commented that the

regulations should address soliciting or

discouraging participation in nonpartisan elections. As OPM stated above

in response to comments on the

definition of ‘‘political purpose,’’ the

pertinent legislative history and the

President’s remarks on signing the

Reform Amendments show that the

Reform Amendments concern

participation in partisan political

activities. Consequently, the regulations

do not address soliciting or discouraging

participation in non-partisan political

activities.
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35095

This same Federal agency further

requested that this section address

whether an employee may endorse a

candidate for an elective office, the

duties of which require the incumbent

of that office to consistently transact

business before the agency. In this

instance, it is impossible to provide an

example that would accurately answer

this agency’s inquiry because the

answers to such questions depend on

the facts and circumstances of each

individual case.

This agency also asked whether

employees appointed by the President

by and with the advice and consent of

the Senate (PAS) are prohibited from

making political speeches in their

personal capacity addressing issues

related to agency business. The Reform

Amendments and OPM regulations at

part 734 generally do not prohibit a PAS

from making a political speech in her

personal capacity, providing that the

President or his designee has not placed

further restrictions on her political

activities in accordance with § 734.104,

and the speech is not made to solicit or

discourage the political participation of

certain persons described in § 734.305.

Depending on the facts and

circumstances associated with the

speech, however, such activity also may

be government by provisions other than

the Reform Amendments. Because

determinations on whether this activity

is prohibited ultimately rest on the facts

and circumstances of each individual

case, employees should consult the

Office of Special Counsel and, if

warranted, the designated agency ethics

official for advice.

Section 734.305 requires that each

agency or instrumentality of the United

States or District of Columbia

Government must determine when

matters are pending and ongoing within

the employing office of the agency or

instrumentality. This same Federal

agency also commented that the

regulations should provide guidelines

for agencies to follow in determining

when a matter is pending or ongoing.

Since there are great differences among

agencies or instrumentalities, OPM

disagrees with this comment and

believes each agency and

instrumentality should make its own

determination.

Section 734.306 prohibits employees

covered by subparts B and C from

participating in partisan political

activities while they are on duty, in

uniform, in a room or building occupied

in the discharge of official duties by an

individual employed or holding office

in the Government of the United States,

using a Government-owned or leased

vehicle, or using a privately-owned

vehicle in the discharge of official

duties. An individual commented that,

if OPM intended through its interim

regulations to prohibit employees from

wearing partisan political buttons while

on duty, OPM should add a provision to

subpart C, Prohibited Activities,

explicitly stating that employees may

not wear partisan political buttons

while on duty. Two Federal agencies

also suggested OPM might do this by

adding an example to § 734.036

specifically stating that employees may

not wear partisan political buttons

while they are on duty or display

partisan political materials at their work

stations. OPM agrees with these

suggestions and, through another

example added to § 734.306, has

prohibited employees from wearing

partisan political buttons while on duty.

A Federal employee labor

organization commented that the

interim regulations permit SES members

to wear partisan political buttons while

they are on duty, but prohibit

competitive service employees from

wearing partisan political buttons under

the same circumstances. The Reform

Amendments’ prohibition against

partisan political participation on duty

extends to all covered employees except

for the two employee categories

described in 5 U.S.C. 7324(b)(2) and

covered under subpart E (Special

Provisions for Certain Presidential

Appointees and Employees Paid from

the Appropriation for the Executive

Office of the President). All other

employees, including SES members, are

prohibited from wearing partisan

political buttons on duty.

One Federal agency asked whether

the prohibition on employees wearing

political buttons while on duty extends

to items worn on duty, or displayed in

the work place, relating to candidates in

nonpartisan elections or to nonpartisan

issues. The interim regulations provide

that the prohibition against political

participation on duty only extends to

partisan political participation. Thus,

the prohibition against wearing political

buttons on duty or displaying political

items in the workplace does not extend

to nonpartisan candidates or to

nonpartisan issue-oriented campaigns.

A Federal employee labor

organization commented that wearing

political buttons is an expression of

speech guaranteed by the Constitution,

as well as an expression of opinion

about a political candidate that clearly

is permitted under the Hatch Act and

should continue to be permitted under

the Reform Amendments. Citing

American Federation of Government

Employees AFL-CIO v. Pierce, 586 F.

Supp. 1559 (1984), the labor

organization said that the prohibition

against wearing political buttons on

duty and the illustrative examples are

overboard, and do not appear to have a

specific purpose such as protecting the

efficient performance of official duties

or preventing a conflict, or apparent

conflict, of interest.

The legislative history of the Reform

Amendments shows Congress was

aware that, under the then-existing

provisions of the Hatch Act, Federal

employees were permitted to wear

partisan political buttons while on duty.

See 139 Cong. Rec. S8604–S8606 (daily

ed. July 13, 1993) (statement of Senator

Glenn). It also shows that Congress

clearly intended to establish a brightline rule prohibiting all political

participation on duty, and that this rule

extends to wearing partisan political

buttons while on duty. S. Rep. No. 57,

103rd Cong. 1 st Sess. 14 (1993),

reprinted in 1993 U.S.C.C.A.N. 1082,

1815; 139 Cong. Rec. S8684 (daily ed.

July 14, 1993) (statement of Senator

Glenn); id. at S8765, S8770, S8785–

S8786 (daily ed. July 15, 1993)

(statement of Senator Glenn); id. at

S8805, 8808 (daily ed. July 15, 1993)

(statements of Senators Boxer and

Sarbanes); id. at S8929 (daily ed. July

20, 1993) (statement of Senator Glenn).

See H.R. Rep. No. 16, 103rd Cong. 1st

Sess. 16, 19–20 (1993) (to accompany

H.R. 20).

The legislative history of the Reform

Amendments further shows that

Congress focused on wearing partisan

political buttons on duty because this

activity could result in subtle and

unspoken coercion when done by a

supervisor, the appearance of a conflict

of interest, and the erroneous

identification of the Government as a

supporter of particular partisan

candidates, parties, or groups. 139 Cong.

Rec. S8604–S8605 (daily ed. July 13,

1993) (statement of Senator Glenn); id.

at S8785 (daily ed. July 15, 1993)

(statement of Senator Glenn); id. at

S8926 (daily ed. July 20, 1993)

(statement of Senator Glenn). See H.R.

Rep. No. 16, 103rd Cong. 1st Sess. 16,

19–20 (1993) (to accompany H.R. 20).

Thus, the regulatory prohibition against

employees wearing partisan political

buttons while on duty originates with

the clear expression of Congressional

intent in enacting these Amendments.

American Federation of Government

Employees v. Pierce concerned a

Veterans’ Administration regulation

prohibiting employees from wearing

political buttons while on duty. The

United States District Court for the

District of Columbia struck down the

prohibition as overboard, finding that

the prohibition did not protect the
35096 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

efficient performance of official duties

or prevent a conflict or apparent conflict

of interest.

Current circumstances differ from the

circumstances which resulted in the

district court decision. At that time, the

Hatch Act prohibited Federal employees

from participating actively in any

partisan political activities, and Federal

employees clearly could not be

associated with partisan political

candidates, parties, or groups. Now the

Reform Amendments permit most

Federal employees to participate

actively in almost all partisan political

activities and to become prominently

identified with partisan political

candidates, parties, or groups. The

expansion of such opportunities for

Federal employees to become involved

in, and identified with, partisan politics,

increases the danger of erroneous

perceptions about coercion of Federal

employees or individual citizens having

business with the Government,

identification of the Government with

specific partisan candidates or groups,

favoritism in administering Government

programs, and conflicts of interest. A

prohibition narrowly tailored to

displays of partisan political buttons,

pictures, signs, stickers, or badges on

duty or in the workplace clearly

promotes the efficient performance of

official duties and prevents a conflict or

apparent conflict of interest under

current circumstances.

In a related matter, an individual, a

Federal employee organization, and five

Federal agencies commented

unfavorably on the requirement to cover

bumper stickers on personal vehicles,

particularly during occasional use for

official travel, such as driving the

vehicle to the site of a training course.

The labor organization commented that

there was no rational basis for requiring

employees to cover bumper stickers

when they use their personal vehicles as

incidental transportation, for example,

in lieu of taking a taxi to or from another

agency for a meeting. The labor

organization stated that the requirement

was not realistic and suggested that it

should apply only when the private

vehicle itself is used in the performance

of official duties, such as delivering

mail on a rural route or inspecting

crops. The agencies and individual

commented that the requirement to

cover bumper stickers when using a

personal vehicle for official business

was excessive, unreasonable, unduly

burdensome, and virtually

unenforceable.

OPM agrees that a requirement to

cover bumper stickers in every instance

is not practical and would be difficult

to enforce where employees use their

private vehicles only occasionally, such

as in driving to a meeting or training

course. Imposing this requirement

within the context of such occasional

use of private vehicles would result in

inadvertent violations by employees

who easily may forget to cover the

bumper stickers on their vehicles, and

would be very difficult to enforce.

Therefore, OPM has amended the

examples in § 734.306 to reflect that the

requirement to cover bumper stickers on

private vehicles only applies when the

vehicle is used for official business on

a recurrent basis, or clearly is identified

as being on official business, and does

not apply to the occasional use of such

a vehicle for official business. However,

within this context, OPM also desires to

make it clear to covered employees that

they are prohibited from placing

partisan political bumper stickers on

any Government-owned or leased

vehicle.

OPM accordingly has defined the

terms ‘‘recurrent’’ and ‘‘occasional’’ in

§ 734.101. These definitions are based

on common usage. The Random House

Dictionary of the English Language

(Unabridged), 2d Ed., 1987, defines

‘‘occasional’’ as ‘‘occurring or appearing

at irregular or infrequent intervals;

occurring now and then; acting or

serving for the occasion or only on

particular occasions.’’ Webster’s Third

New International Dictionary of the

English Language (Unabridged), 1966

Ed., defines ‘‘occasional’’ as ‘‘occurring

or operating on a particular occasion;

proceeding from the occasion; met with,

appearing, or occurring irregularly and

accordingly to no fixed or certain

scheme; infrequent.’’

The Random House Dictionary

defines ‘‘recurrent’’ as ‘‘occurring or

appearing again, esp. repeatedly or

periodically.’’ Webster’s Dictionary

defines ‘‘recurrent’’ as ‘‘returning from

time to time; appearing or coming

periodically; happening again and

again.’’ Finally, the Oxford English

Dictionary (1933) defines ‘‘recurrent’’ as

occurring or coming again (esp.

frequently or periodically);

reappearing.’’ The regulatory definitions

of ‘‘occasional’’ and ‘‘recurrent’’

incorporate these concepts.

Example 6 of § 734.306 of the interim

regulations concerns political activities

in a commercial building where

Government agencies and

instrumentalities lease office space, and

where the headquarters of a candidate

for partisan political office also are

situated. The example provides that an

employee of the Government agency or

instrumentality may do volunteer work

at the candidate’s headquarters when

the employee is not on duty.

OPM believes that this example is

confusing because it suggests that

employees may participate in political

activities only in the candidate’s

headquarters, and not elsewhere in the

building. Therefore, OPM has revised

the example to clarify that, when

employees are not on duty, the Reform

Amendments do not prohibit them from

participating in political activities in the

other areas of the building that are not

leased by the Government, including

public areas that are shared by all of the

tenants, such as the main lobby.

Although the Reform Amendments

would not prohibit employees from

political participation in areas that are

shared by all of the tenants, OPM notes

that political activities in these areas

may be restricted by the landlord.

For purposes of contrast and further

clarification, OPM has included an

additional example specifying that,

where a Government agency or

instrumentality leases all of the space in

a commercial building, employees may

not participate in political activity in

any area of the building, including the

public areas of the leased building.

OPM believes this distinction is in

accord with the February 22, 1995

opinion of the Office of Legal Counsel

at the Department of Justice to the Office

of Personnel Management. That opinion

stressed that Congress intended to create

a bright-line rule against participating in

partisan political activities while on

Federal premises. To apply this

prohibition to all areas of a commercial

building, when the Government has

leased only a part of the building, would

undermine the bright-line rule

described in the Office of Legal Counsel

opinion. Accordingly, distinguishing

between a commercial building in

which the Government has leased part

of the space and a commercial building

in which the Government has leased all

of the space accords with the

Congressional intent of establishing a

bright-line rule as described in the

Office of Legal Counsel opinion.

Example 10 of § 734.306 of the

interim regulations provides that

Federal employees may participate in

partisan political activities while they

are sitting in the park on their lunch

break, if they are not on duty during

their lunch break. A Federal agency

suggested that the regulations specify

when Federal employees would not be

on duty during their lunch breaks, and

that individual agencies should

determine whether employees are on

duty at that time. In general, employees

who are covered by title 5, United States

Code, are not in a pay status during a

bona fide lunch break and, therefore,

they are not on duty. However, for the
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35097

purposes of these regulations, an

employee still is considered to be on

duty during his lunch hour when he is

representing an agency or

instrumentality of the United States in

an official capacity during that time.

Example 1 of § 734.307 prohibits the

Federally employed spouses of

candidates for partisan political office

from soliciting, accepting, or receiving

contributions of money or personal

services. A federal employee labor

organization suggested deleting personal

services from Example 1 because

soliciting volunteer services is not

prohibited. Although personal services

are different from the uncompensated

volunteer services of an individual, it is

clear from the comment that use of the

term ‘‘personal services’’ in Example 1

is confusing. To clarify the example,

OPM has deleted the term ‘‘personal

services’’ from Example 1, and

substituted the phrase ‘‘paid or unpaid

services of a business or corporation.’’

Subpart D—Employees in Certain

Agencies and Positions

Subpart D of the regulations concerns

the political activities of employees in

the sensitive agencies and positions that

are listed in § 734.401. Through section

501(k) of Pub. L. 103–359 (October 14,

1994), Congress added the Central

Imagery Office to the sensitive agencies

and positions listed in 5 U.S.C. 7323

(b)(2)(B)(i). Accordingly, OPM has

added the Central Imagery Office to the

agencies and positions listed in

§ 734.401(a) of the regulations.

Section 734.402 of subpart D

describes permissible expressions of

individual opinion for these employees.

Subsection (b) of § 734.402 provides that

they may display partisan political

pictures, signs, stickers, badges, or

buttons, as long as these items are

displayed off duty and away from

Federal premises in accordance with the

provisions of § 734.408. Two Federal

agencies suggested changing the crossreference in subsection (b) from

§§ 734.408 to 734.406. Section 734.408

generally prohibits active participation

in partisan political management and

partisan political campaigns. Section

734.406 prohibits political participation

while on duty, in uniform, in any room

or building occupied in the discharge of

official duties, or using a Federal

vehicle. We agree with the suggestions

that a cross-reference to § 734.406

would be more appropriate, and have

changed § 734.402(b) to reflect this.

OPM also has amended Example 5 in

§ 734.402 to reflect when it is

permissible for an employee who is

covered under subpart D to wear a

partisan political button and, for

purposes of clarification, has added

another example providing that an

employee may place partisan political

signs on his or her private property.

Section 734.404 describes permissible

participation in political organizations.

Subsection (c) provides that employees

may attend political conventions,

rallies, fund-raising functions, or other

political gatherings. A Federal agency

noted that Example 1 appears to

contradict, rather than to illustrate, this

principle by prohibiting employees from

participating in demonstrations or

parades while they are attending a

convention or rally. The Federal agency

suggested that OPM should explain

further exactly what activities are

permissible, or define what is meant by

attending a convention, rally, or other

political gathering.

OPM agrees that Example 1 in

§ 734.404 should be clarified. Although

employees may attend the conventions

and rallies of political parties or

partisan political groups, joining in the

parades and demonstrations held at

these functions is considered active

participation in partisan political

activity. Therefore, Example 1 in

§ 734.404 has been amended to reflect

that employees may attend partisan

political conventions or partisan

political rallies solely as spectators, but

they may not participate in

demonstrations or parades at these

partisan political functions.

Section 734.406 prohibits employees

from participating in political activities

while they are on duty, in uniform, in

any room or building occupied in the

discharge of official duties, or using a

Federal vehicle.

Another Federal agency asked

whether § 734.406 prohibits displays in

the workplace or while on duty of

pictures, signs, badges, or buttons for

candidates in non-partisan elections or

for ballot issues not specifically

identified with a political party. The

interim regulations provide that the

prohibition against political

participation on duty only extends to

partisan political participation. Thus,

the prohibition against wearing political

buttons on duty or displaying political

items in the workplace does not extend

to displays for candidates in

nonpartisan elections or to issues that

are not specifically identified with a

political party.

The same Federal agency requested

clarification on the restriction in

§ 734.406(a)(4) of participating in

political activities while using a

privately owned vehicle in the

discharge of official duties. The agency

noted that, since political participation

includes displays of partisan political

bumper stickers, the restriction could be

interpreted as barring employees from

having such bumper stickers on their

private vehicle if the employees use the

vehicle for official travel. The agency

further noted that enforcement of such

a restriction would be impractical. We

agree with this assessment, and have

added clarifying examples to § 734.406

applying the restriction only to privately

owned vehicles that are used for official

business on a recurrent basis or clearly

are identified as being on official

business. The restriction does not apply

to the occasional use of such a vehicle

for official business. The terms

‘‘occasional’’ and ‘‘recurrent’’ are

defined in § 734.101.

In a related matter, an individual and

two Federal agencies generally

commented in connection with subpart

C that, if OPM intended through its

interim regulations to prohibit

employees from wearing partisan

political buttons while on duty, OPM

should add a provision explicitly stating

that employees may not wear partisan

political buttons while on duty. Two

Federal agencies suggested OPM might

do this by adding an example

specifically stating that employees may

not wear partisan political buttons

while they are on duty or display

partisan political materials at their work

stations. OPM believes that these

suggestions are instructive with regard

to subpart D. Therefore, OPM has added

to § 734.406 another example which

specifies that wearing partisan political

buttons while on duty or displaying

partisan political items in the workplace

is prohibited.

An agency commented that

§§ 734.408 and 734.411(a) prohibit the

same behavior, are duplicative and

potentially confusing, and should be

combined. Section 734.408 generally

prohibits active participation in

political management and campaigns,

‘‘except as permitted by this part.’’

Section 734.411(a) prohibits active

participation in managing the political

campaign of a candidate for partisan

political or party office. Section 734.408

covers a broader range of political

activities than § 734.411(a), which

prohibits active participation in

managing the political campaign of a

candidate for partisan political office or

political party office. Section 734.408

also prohibits activities described in

§§ 734.409 and 734.410, as well as in

the remaining subsections of § 734.411.

Although OPM has not combined

§§ 734.408 and 734.411(a), OPM

believes that the phrase ‘‘except as

permitted by this part’’ in § 734.408 is

confusing because employees covered

under this section are permitted to
35098 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

participate only in the political

activities described in subpart D.

Therefore, OPM revised this phrase to

include a reference to ‘‘subpart D’’

rather than to ‘‘this part.’’

Section 734.412(a) of the interim

regulations provides that an employee

covered under subpart D may not be a

candidate for partisan political office

except as described in § 734.403 which

permits candidacy in nonpartisan

elections. A Federal agency commented

that the exception in § 734.412(a)

should be eliminated because it is

meaningless and confusing. OPM agrees

with this suggestion; a nonpartisan

election by definition cannot include

any candidates for partisan political

office. Therefore, OPM has removed

from § 734.412(a) the reference to

§ 734.403.

Subpart E—Special Provisions for

Certain Presidential Appointees and

Employees Paid From the

Appropriation for the Executive Office

of the President

A Federal agency suggested that

§ 734.502(a)(2)(ii) include examples of,

or a method for determining whether, an

employee who is appointed by the

President, by and with the advice and

consent of the Senate, ‘‘determines

policies to be pursued by the United

States in relations with foreign powers

or in the nationwide administration of

Federal laws.’’ OPM cannot devise a

precise procedure that would apply to

all positions that might be covered

under § 734.502(a)(2)(ii) because each

position has its own unique

qualifications and duties. In view of

this, providing examples of covered

positions based on descriptions of their

duties and responsibilities would not be

of assistance is deciding whether a

position meets the criteria in

§ 734.502(a)(2)(ii). Thus, determinations

concerning the coverage of a specific

position under § 734.502 must be made

on an individual basis by the President

or his appropriate designee.

Section 734.502(d) provides that an

employee, to whom subpart E of part

734 does not apply and who is not on

duty, may participate in political

activities in rooms of the White House

which are part of the Residence area or

which are not regularly used solely in

the discharge of official duties. In its

discussion of the Residence area of the

White House in connection with

§ 734.101, OPM noted that the same

principles that govern the White House

also should apply to the residence of the

Vice President which, historically, has

been treated like the White House. OPM

also noted that the same analysis and

conclusions that apply to the White

House also apply to the residence of the

Vice President. Therefore, OPM is

amending § 734.502(d) to include the

residence of the Vice President.

One Federal agency commented that

all Inspectors General, including those

appointed by the heads of designated

Federal entities pursuant to the

Inspector General Act of 1978, section

8G, should be prohibited from taking an

active part in political management or

political campaigns. We find no basis

for this across-the-board restriction of

all such Inspectors General. Section 3(c)

of the Inspector General Act, which

provides that for the purposes of section

7324 of title 5, United States Code, an

Inspector General is not considered to

determine policies to be pursued by the

United States in the nationwide

administration of Federal laws, applies

only to an Inspector General who is

appointed by the President by and with

the advice and consent of the Senate.

Section 8G(c) provides that an Inspector

General in a designated Federal entity is

appointed by the head of the designated

Federal entity according to the laws and

regulations governing appointments

within that specific designated Federal

entity. Therefore, the treatment

Inspectors General, other than those

appointed by the President by and with

the advice and consent of the Senate,

receive under the regulations depends

on their appointment and the entities in

which they serve.

Use of Official Title, Noncareer

Members of the Senior Executive

Service, Use of the Phrase ‘‘in Concert

With’’ in the Final Regulations, and

Political Signs

Two Federal agencies commented that

the treatment of the use of official title

in connection with political activities

was not clear. In response, we have

amended § 734.302 to include a

prohibition on the use of official title in

connection with any partisan political

activity. However, a form of address,

such as ‘‘Honorable’’ may be used on

letters, invitations, or when introducing

a covered employee at partisan political

functions.

A Federal agency noted that although

career Senior Executive Service (SES)

employees are specifically mentioned in

§ 734.401, noncareer SES employees are

not mentioned in the regulations.

Noncareer SES employees who do not

work in the agencies or positions

described in § 734.401 are subject to the

provisions of subparts B and C of part

734. OPM has added examples about

these noncareer SES employees to the

provisions in subparts B and C to make

it clear that they are subject to the

provisions of these subparts. Noncareer

SES employees who work in the

agencies or positions described in

§ 734.401 are subject to the more

restrictive provisions of subpart D of

part 734. Examples regarding noncareer

SES employees also have been added to

subpart D. Finally, all career SES

employees also are subject to the

provisions of subpart D.

A Federal agency noted that the

phrases ‘‘in concert with’’ and ‘‘in

consultation or coordination with’’ both

appear in subpart D, and questioned

whether the difference in language

signifies any difference in meaning.

Although these phrases were intended

to express the same concept, the use of

the two phrases is a source of confusion.

Therefore, OPM has eliminated the

phrase ‘‘in consultation or coordination

with’’ and exclusively used ‘‘in concert

with’’ in the final version of the

regulations. OPM relies on the language

in Blaylock v. United States Merit

Systems Protection Board, 851 F.2d

1348 (11th Cir. 1988) and Biller v.

United States Merit Systems Protection

Board, 863 F.2d 1079 (2d Cir. 1988),

which refers to political activity done

‘‘in concert with’’ political parties,

partisan groups, or candidates for public

office in partisan elections. See Blaylock

v. United States Merit Systems

Protection Board, 851 F.2d at 1354;

Biller v. United States Merit Systems

Protection Board, 863 F.2d at 1090–

1091.

A Federal agency suggested that an

example should be added to the

regulations that clearly permits

employees to place partisan political

signs on their property. OPM has added

such an example to § 734.205. In

addition, another example in § 734.402

reflects that employees covered under

subpart D also may display partisan

political signs on their property.

Contributions to Political Action

Committees Through Voluntary Salary

Allotments

The final regulations also contain new

provisions which result from the

issuance, on February 22, 1995, of an

opinion by the Office of Legal Counsel

(OLC) at the Department of Justice to the

Office of Personnel Management. The

OLC opinion addresses the question of

whether the Reform Amendments

prohibit Federal employees from

making voluntary salary allotments to

political action committees (PACs). The

OLC initially noted that ‘‘PACs’’ are not

defined as such under Federal law. OLC

noted further that 26 U.S.C. 9002(9)

defined the term ‘‘political committee’’

and stated that, for the purposes of its

opinion, ‘‘PAC’’ referred only to an

organization that came within this
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35099

definition. OPM has incorporated into

part 734 the definition of ‘‘PAC’’ that

OLC used in its opinion. OPM notes that

the definition does not make a

distinction between partisan and

nonpartisan PACs because, according to

the OLC opinion, donating to a PAC that

meets this definition would be

considered political activity within the

meaning of the Reform Amendments.

OLC noted in this regard that political

activity includes actions sufficient to

effect the making of a political

contribution, such as taking steps to

ensure that part of one’s salary is

contributed to a political campaign or a

PAC. OLC noted that the OPM interim

regulations on political activity

confirmed its view that contributing to

political candidates constitutes political

activity within the meaning of the OPM

interim regulations because it is

directed toward the success or failure of

a political party, candidate for partisan

political office, or partisan political

group. OPM has not revised this

definition of political activity.

Moreover, OLC noted that Congress

intended that making contributions to

PACs would be considered political

activity under the terms of the Reform

Amendments. It noted that Senator

Glenn, the leading Senate sponsor of the

Reform Amendments, referred

specifically to PAC contributions in

describing examples of the political

activities that the Reform Amendments

would prohibit on duty. See 139 Cong.

Rec. S8929 (daily ed. July 20, 1993). In

view of this, OMP believes that it is not

necessary to further refine the OLC

definition of PAC. OPM has added to

§ 734.101, a definition of the term

‘‘political action committee’’ which

tracks the definition of ‘‘political

committee’’ in 26 U.S.C. 9002(9).

OLC opined that most Federal

employees are not barred from using the

salary allotment system to make

contributions to PACs. Thus, Federal

employees who are subject to subparts

B through D of part 734 are not

prohibited from making a voluntary

allotment to a PAC.

OLC opined in addition that 5 U.S.C.

7324(a)(1)(4) prohibits Federal

employees from taking steps sufficient

to effect the making of a PAC

contribution while they are on duty or

in a Federal building. Thus, employees

who are subject to subparts B through D

of part 734 are prohibited from filling

out direct-deposit forms for salary

allotments to PACs while they are on

duty or in a Federal building, and from

personally delivering such forms to

payroll employees who would process

or administer these allotments. OPM has

amended §§ 734,208, 734.306, 734.404,

and 734.406 of its regulations to reflect

the conclusions stated on the OLC

opinion. OPM also has added to

§ 734.101, a definition of the term

‘‘political action committee’’ which

tracks the definition of ‘‘political

committee’’ in 26 U.S.C. 9002(9).

OLC also opined that Federal

employees who are identified in 5

U.S.C. 7324(b)(2) may not use the salary

allotment system to contribute money to

PACs. Section 7324(b)(2) applies to

employees whose duties and

responsibilities ‘‘continue outside

normal duty hours and while away from

the normal duty post’’ and who are

either employees (1) ‘‘paid from an

appropriation for the Executive Office of

the President’’ or (2) ‘‘appointed by the

President, by and with the advice and

consent of the Senate, whose position(s

are) located within the United States in

relations with foreign powers or in the

nationwide administration of Federal

laws.’’ Such employees are covered

under subpart E of OPM’s regulations.

OLC opined that in the use of the salary

allotment system, the costs associated

with the transfer of contributions to

PACs would be borne by the Federal

Government, and 5 U.S.C. 7324(b)(1) of

the Reform Amendments prohibits these

employees form engaging in political

activity using ‘‘money derived from the

Treasury of the United States.’’ OPM has

added to subpart E a new provision that

reflects this prohibition.

Finally, the OLC opinion stressed that

5 U.S.C. 5525, the statutory provision

governing allotment and assignment of

pay, as well as the OPM allotment

regulations at 5 CFR 550.311(b), provide

that individual agency heads have the

discretion to determine whether eligible

employees of the agency may use the

allotment system for particular

purposes, such as making contributions

to PACs.

E.O. 12866, Regulatory Review

This rule has been reviewed by the

Office of Management and Budget in

accordance with E.O. 12866.

Regulatory Flexibility Act

I certify that these regulations would

not have a significant economic impact

on a substantial number of small entities

because they would apply only to

Federal agencies and employees.

List of Subjects in 5 CFR Part 734

Political activities (Government

employees).

U.S. Office of Personnel Management.

James B. King,

Director.

Accordingly, the Office of Personnel

Management interim rule adding 5 CFR

part 734, published at 59 FR 48765 on

September 23, 1994, is adopted as a

final rule with the following changes:

PART 734—POLITICAL ACTIVITIES OF

FEDERAL EMPLOYEES

1. The authority citation for part 734

continues to read as follows:

Authority: 5 U.S.C. 1103, 1104, 7325;

Reorganization Plan No. 2 of 1978, 92 Stat.

3783, 3 CFR 1978 Comp. p. 323; and E.O.

12107, 3 CFR 1978 Comp. p. 264.

2. In § 734.101 the definitions of

accept, and receive, are revised, and the

definitions of occasional, political

action committee, recurrent, and room

or building occupied in the discharge of

official duties by an individual

employed or holding office in the

Government of the United States or any

agency thereof are added in alphabetical

order, to read as follows:

§ 734.101 Definitions.

* * * * *

Accept means to come into possession

of something from a person officially on

behalf of a candidate, a campaign, a

political party, or a partisan political

group, but does not include ministerial

activities which precede or follow this

official act.

* * * * *

Occasional means occurring

infrequently, at irregular intervals, and

according to no fixed or certain scheme;

acting or serving for the occasion or

only on particular occasions.

* * * * *

Political Action Committee means any

committee, association, or organization

(whether or not incorporated) which

accepts contributions or makes

expenditures for the purpose of

influencing, or attempting to influence,

the nomination or election of one or

more individuals to Federal, State, or

local elective public office.

* * * * *

Receive means to come into

possession of something from a person

officially on behalf of a candidate, a

campaign, a political party, or a partisan

political group, but does not include

ministerial activities which precede or

follow this official act.

Recurrent means occurring frequently,

or periodically on a regular basis.

Room or building occupied in the

discharge of official duties by an

individual employed or holding office in

the Government of the United States or
35100 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

any agency thereof includes, but is not

limited to:

(1) Any Federally owned space

(including, but not limited to, ‘‘public

buildings’’ as defined in 40 U.S.C.

612(1)) or Federally leased space in

which Federal employees perform

official duties on a regular basis;

(2) Public areas as defined in 40

U.S.C. 490(a)(17) and 41 CFR 101–

20.003 of buildings under the custody

and control of the General Services

Administration.

(3) A room or building occupied in

the discharge of official duties by an

individual employed or holding office

in the Government of the United States

or any agency thereof does not include

rooms in the White House, or in the

residence of the Vice President, which

are part of the Residence area or which

are not regularly used solely in the

discharge of official duties.

3. In § 734.102 paragraphs (a)

introductory text and (b) are revised to

read as follows:

§ 734.102 Jurisdiction.

(a) The United States Office of Special

Counsel has exclusive authority to

investigate allegations of political

activity prohibited by the Hatch Act

Reform Amendments of 1993, as

implemented by 5 CFR part 734,

prosecute alleged violations before the

United States Merit Systems Protection

Board, and render advisory opinions

concerning the applicability of 5 CFR

part 734 to the political activity of

Federal employees and employees of the

District of Columbia government. (5

U.S.C. 1212 and 1216. Advice

concerning the Hatch Act Reform

Amendments may be requested from the

Office of Special Counsel:

* * * * *

(b) The Merit Systems Protection

Board has exclusive authority to

determine whether a violation of the

Hatch Act Reform Amendments of 1993,

as implemented by 5 CFR part 734, has

occurred and to impose a minimum

penalty of suspension for 30 days and

a maximum penalty of removal for

violation of the political activity

restrictions regulated by this part. (5

U.S.C. 1204 and 7326).

* * * * *

4. In § 734.203, Example 2 is added to

read as follows:

§ 734.203 Participation in nonpartisan

activities.

* * * * *

Example 2: An employee, individually or

collectively with other employees, may

petition or provide information to Congress

as provided in 5 U.S.C. 7211.

5. In § 734.204, paragraph (f) is added,

and Example 2 is revised, to read as

follows:

§ 734.204 Participation in political

organizations.

* * * * *

(f) Serve as a delegate, alternate, or

proxy to a political party convention.

* * * * *

Example 2: A noncareer member of the

Senior Executive Service, or other employee

covered under this subpart, may serve as a

vice-president of a political action

committee, as long as the duties of the office

do not involve personal solicitation,

acceptance, or receipt of political

contributions. Ministerial activities which

precede or follow the official acceptance and

receipt, such as handling, disbursing, or

accounting for contributions are not covered

under the definitions of accept and receive in

§ 734.101. Sections 734.208 and 734.303

describe in detail permitted and prohibited

activities which are related to fundraising.

* * * * *

6. In § 734.205, Examples 8 and 9 are

added to read as follows:

§ 734.205 Participation in political

campaigns.

* * * * *

Example 8: While not on duty, a Federal

employee may distribute campaign leaflets

by hand to homes or parked cars even though

the leaflet may contain information

concerning where to send contributions

among other factual material about a partisan

political candidate. However, should a

member of the public stop the employee and

request further information about

contributions, the employee should refer that

request to another campaign worker who is

not a Federal employee.

Example 9: An employee may place in his

or her front yard a sign or banner supporting

a partisan political candidate.

7. § 734.208, paragraphs (c) and (d)

are added, Examples 12 and 13 are

added, and Example 4 is revised, to read

as follows:

§ 734.208 Participation in fundraising.

* * * * *

(c) Subject to the provisions of

§ 734.306, an employee may make a

financial contribution to a political

action committee through a voluntary

allotment made under § 550.311(b) of

this chapter, if the head of the

employee’s agency permits agency

employees to make such allotments to

political action committees.

(d) An employee who is covered

under this subpart and is a payroll

official in an agency where employees

are permitted to make allotments to

political action committees may process

the completed direct deposit forms for

voluntary allotments which have been

made to such committees under section

550.311(b) of this title.

* * * * *

Example 4: When an employee of the

Department of Transportation is not on duty,

he or she may engage in activities which do

not require personal solicitations of

contributions, such as organizing mail or

phone solicitations for political

contributions. Activities such as stuffing

envelopes with requests for political

contributions also are permitted. However,

he or she may not sign the solicitation letter

unless the solicitation is for the contribution

of uncompensated volunteer services of

individuals who are not subordinate

employees. An employee may not knowingly

send to his or her subordinate employees a

letter soliciting the contribution of their

uncompensated services. However, he or she

may sign a letter that solicits contributions of

uncompensated volunteer services as part of

a general mass mailing that might reach a

subordinate employee, as long as the mass

mailing is not specifically targeted to his or

her subordinate employees.

* * * * *

Example 12: An employee who desires to

make a financial contribution to a political

action committee through a voluntary

allotment personally may obtain blank direct

deposit forms from his or her payroll office.

However, he or she may not complete the

form while he or she is on duty, on Federal

property, or in a Federally owned or leased

vehicle. Moreover, he or she may not

personally deliver his or her completed form,

or the completed form of another employee,

to the payroll office. However, the employee

may mail his or her direct deposit form to his

or her agency payroll office.

Example 13: Employees who are permitted

to solicit, accept, or receive political

contributions under the circumstances

described in § 734.208(b)(4) may not solicit,

accept, or receive such contributions either

while they are on duty, or while they are on

Federal premises, or both.

8. Section 734.302 is revised to read

as follows:

§ 734.302 Use of official authority;

prohibition.

(a) An employee may not use his or

her official authority or influence for the

purpose of interfering with or affecting

the result of an election.

(b) Activities prohibited by paragraph

(a) of this section include, but are not

limited to:

(1) Using his or her official title while

participating in political activity;

(2) Using his or her authority to

coerce any person to participate in

political activity; and

(3) Soliciting, accepting, or receiving

uncompensated individual volunteer

services from a subordinate for any

political purpose.

Example 1: An employee who signs a letter

seeking uncompensated volunteer services

from individuals may not identify himself or
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35101

herself by using his or her official title.

However, the employee may use a general

form of address, such as ‘‘The Honorable.’’

Example 2: A noncareer member of the

Senior Executive Service, or another

employee covered by this subpart, may not

ask his or her subordinate employees to

provide uncompensated individual volunteer

services for a political party, partisan

political group, or candidate for partisan

political office. Moreover, he or she may not

accept or receive such services from a

subordinate employee who offers to donate

them.

Example 3: An employee may not require

any person to contribute to a partisan

political campaign in order to win a Federal

contract:

9. In § 734.306, Example 3 through 13

are revised and 14 through 19 are added

to read as follows:

734.306 Participation in political activities

while on duty, in uniform, in any room or

building occupied in the discharge of

official duties, or using a Federal vehicle.

* * * * *

Example 3: An employee who uses his or

her privately owned vehicle on a recurrent

basis for official business may place a

partisan political bumper sticker on the

vehicle, as long as he or she covers the

bumper sticker while the vehicle is being

used for official duties.

Example 4: An employee who uses his or

her privately owned vehicle on official

business, must cover any partisan political

bumper sticker while the vehicle is being

used for official duties, if the vehicle is

clearly identified as being on official

business.

Example 5: A noncareer member of the

Senior Executive Service, or any other

employee covered by this subpart, who uses

his or her privately owned vehicle only on

an occasional basis to drive to another

Federal agency for a meeting, or to take a

training course, is not required to cover a

partisan political bumper sticker on his or

her vehicle.

Example 6: An employee may not place a

partisan political bumper sticker on any

Government owned or Government leased

vehicle.

Example 7: An employee may place a

bumper sticker on his or her privately owned

vehicle and park his or her vehicle in a

parking lot of an agency or instrumentality of

the United States Government or in a nonFederal facility for which the employee

receives a subsidy from his or her employing

agency or instrumentality.

Example 8: When an agency or

instrumentality of the United States

Government leases offices in a commercial

building and that building includes the

headquarters of a candidate for partisan

political office, an employee of that agency

or instrumentality may do volunteer work,

when he or she is not on duty, at the

candidate’s headquarters and in other areas

of the building that have not been leased by

the Government.

Example 9: A Government agency or

instrumentality leases all of the space in a

commercial building; employees may not

participate in political activity in the public

areas of the leased building.

Example 10: An employee of the National

Aeronautics and Space Administration

(NASA) may not engage in political activities

while wearing a NASA flight patch, NASA

twenty-year pin or anything with an official

NASA insignia.

Example 11: If a political event begins

while an employee is on duty and continues

into the time when he or she is not on duty,

the employee must wait until he or she is not

on duty to attend the event. Alternatively, an

employee may request annual leave to attend

the political event when it begins.

Example 12: Officials of labor

organizations who have been given official

time to perform representational duties are

on duty.

Example 13: An employee may stuff

envelopes for a mailing on behalf of a

candidate for partisan political office while

the employee is sitting in the park during his

or her lunch period if he or she is not

considered to be on duty during his or her

lunch period.

Example 14: An employee who works at

home may engage in political activities at

home when he or she is not in a pay status

or representing the Government in an official

capacity.

Example 15: An employee who is

appointed by the President by and with the

advice and consent of the Senate (PAS) may

attend a political event with an non-PAS

employee whose official duties do not

require accompanying the PAS as long as the

non-PAS employee is not on duty.

Example 16: A noncareer member of the

Senior Executive Service, or any other

employee covered by this subpart, may not

wear partisan political buttons or display

partisan political pictures, signs, stickers, or

badges while he or she is on duty or at his

or her place of work.

Example 17: An employee may not engage

in political activity in the cafeteria of a

Federal building, even if the cafeteria is in

space leased by a contractor.

Example 18: An employee who contributes

financially to a political action committee

through a voluntary allotment made under

§ 550.311(b) of this title may not complete

the direct deposit forms while he or she is

on duty, in a ‘‘room or building’’ defined in

§ 734.101 or in a Federally owned or leased

vehicle.

Example 19: An employee who contributes

financially to a political action committee

through a voluntary allotment may not

personally deliver his or her completed

direct deposit form, or the completed direct

deposit form of another employee, to the

payroll employees who would process or

administer such forms. However, the

employee may mail his or her direct deposit

form to his or her agency payroll office.

10. In § 734.307, Example 1 is revised

to read as follows:

§ 734.307 Campaigning for a spouse or

family member.

* * * * *

Example 1: An employee who is married

to a candidate for partisan political office

may attend a fundraiser for his or her spouse,

stand in the receiving line, sit at the head

table, and urge others to vote for his or her

spouse. However, the employee may not

personally solicit, accept, or receive

contributions of money or the paid or unpaid

services of a business or corporation, or sell

or collect money for tickets to the fundraiser.

* * * * *

11. In § 734.401, paragraphs (a)(14)

through (a)(16) are revised and

paragraph (a)(17) is added to read as

follows:

§ 734.401 Coverage.

(a) * * *

(14) The Central Imagery Office;

(15) Career Senior Executive Service

positions described in 5 U.S.C.

3132(a)(4);

(16) Administrative Law Judge

positions described in 5 U.S.C. 5372;

(17) Contract Appeals Board Member

positions described in 5 U.S.C. 5372a.

* * * * *

12. In § 734.402, paragraph (b) is

revised, Examples 4 and 5 are

redesignated as Examples 5 and 6

respectively, newly redesignated

Examples 5 and 6 are revised, and

Example 4 is added, to read as follows:

§ 734.402 Expression of an employee’s

individual opinion.

* * * * *

(b) Display a political picture, sign,

sticker, badge, or button, as long as

these items are displayed in accordance

with the provisions of § 734.406;

* * * * *

Example 4: An employee may place in his

or her yard a sign supporting a candidate for

partisan political office.

Example 5: An employee may stand

outside of a political party convention with

a homemade sign which states his or her

individual opinion that one of the candidates

for nomination is the best qualified

candidate.

Example 6: An employee, including a

career SES employee, may wear a button

with a partisan political theme when the

employee is not on duty or at his or her place

of work.

13. Section 734.404 is revised to read

as follows:

§ 734.404 Participation in political

organizations.

(a) Each employee covered under this

subpart retains the right to:

(1) Participate in the nonpartisan

activities of a civic, community, social,

labor, or professional organization, or of

a similar organization;

(2) Be a member of a political party

or other partisan political group and

participate in its activities to the extent

consistent with other Federal law;

(3) Attend a political convention,

rally, fund-raising function, or other

political gathering; and
35102 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

(4) Make a financial contribution to a

political party, partisan political group,

or to the campaign committee of a

candidate for partisan political office.

(b) Subject to the provisions in

§ 734.406, an employee covered under

this subpart may make a financial

contribution to a political action

committee through a voluntary

allotment made under § 550.311(b) of

this chapter if the head of the

employee’s agency permits agency

employees to make such allotments to

political action committees.

(c) An employee who is covered

under this subpart and is a payroll

official in an agency where employees

are permitted to make allotments to

political action committees may process

the completed direct deposit forms for

voluntary allotments which have been

made to such committees under

§ 550.311(b) of this chapter.

Example 1: An employee, or a noncareer

SES employee who is subject to subpart D of

part 734, may attend a political convention

or rally solely as a spectator. However, the

employee and noncareer SES employee may

not participate in demonstrations or parades

which are sponsored by a political party, a

partisan political group, or an individual

who is running for nomination to be a

candidate for partisan political office.

Example 2: An employee may attend a

political party’s annual barbecue, but he or

she may not organize, distribute invitations

to, or sell tickets to the barbecue.

Example 3: An employee who desires to

contribute to a political action committee

through an allotment personally may obtain

blank direct deposit forms from his or her

payroll office. The employee may not

complete the direct deposit form while he or

she is on duty, on Federal property, or in a

Federally owned or leased vehicle. The

employee also may not personally deliver his

or her completed direct deposit form, or the

completed direct deposit form of another

employee, to his or her payroll office.

However, the employee may mail the

completed form to his or her agency payroll

office.

14. In § 734.406, Examples 1 through

8 are added to read as follows:

§ 734.406 Participation in political

activities while on duty, in uniform, in any

room or building occupied in the discharge

of official duties, or using a Federal vehicle;

prohibition.

* * * * *

Example 1: An employee who uses his or

her privately owned vehicle on a recurrent

basis for official business may place a

bumper sticker on the vehicle, as long as he

or she covers the bumper sticker while the

vehicle is being used for official duties.

Example 2: An employee who uses his or

her privately owned vehicle on official

business, must cover any partisan political

bumper sticker while the vehicle is being

used for official duties, if the vehicle is

clearly identified as being on official

business.

Example 3: An employee or career SES

employee who uses his or her privately

owned vehicle only on an occasional basis to

drive to another Federal agency for a

meeting, or to take a training course, if not

required to cover a partisan political bumper

sticker on his or her vehicle.

Example 4: An employee may not place a

partisan political bumper sticker on any

Government owned or Government leased

vehicle.

Example 5: An employee may place a

bumper sticker on his or her privately owned

vehicle and park the vehicle in a parking lot

of an agency or instrumentality of the United

States Government or in a non-Federal

facility for which the employee receives a

subsidy from his or her employing agency or

instrumentality.

Example 6: An employee, or noncareer SES

employee who is subject to subpart D of this

part 734, may not wear partisan political

buttons or display partisan political pictures,

signs, stickers, or badges while he or she is

on duty or at his or her place of work.

Example 7: An employee who contributes

financially to a political action committee

through a voluntary allotment made under

§ 550.311(b) of this title may not complete

the direct deposit forms while he or she is

on duty, in a ‘‘room or building’’ defined in

§ 734.101, or in a Federally owned or leased

vehicle.

Example 8: An employee who contributes

financially to a political action committee

may not personally deliver his or her

completed direct deposit form, or the

completed direct deposit form of another

employee, to the payroll employees who

would process or administer such forms.

However, the employee may mail his or her

direct deposit form to his or her agency

payroll office.

15. Section 734.408 is revised to read

as follows:

§ 734.408 Participation in political

management and political campaigning;

prohibitions.

An employee covered under this

subpart may not take an active part in

political management or in a political

campaign, except as permitted by

subpart D of this part.

16. In § 734.412, paragraphs (a), (b),

and (c) are revised to read as follows:

§ 734.412 Participation in elections;

prohibitions.

(a) Be a candidate for partisan

political office;

(b) Act as recorder, watcher,

challenger, or similar officer at polling

places in concert with a political party,

partisan political group, or a candidate

for partisan political office;

(c) Drive voters to polling places in

concert with a political party, partisan

political group, or a candidate for

partisan political office;

17. In § 734.502 paragraph (d) is

revised to read as follows:

§ 734.502 Participation in political activity

while on duty, in uniform, in any room or

building occupied in the discharge of

official duties, or using a Federal vehicle.

* * * * *

(d) An employee, to whom subpart E

of this part does not apply, who is not

on duty may participate in political

activities in rooms of the White House

or the Residence of the Vice President

which are part of the Residence area or

which are not regularly used solely in

the discharge of official duties.

* * * * *

18. Section 734.504 is added to read

as follows:

* * * * *

§ 734.504 Contributions to political action

committees through voluntary payroll

allotments prohibited.

An employee described in

§ 734.502(a) may not financially

contribute to a political action

committee through a voluntary

allotment made under § 550.311(b) of

this title.

[FR Doc. 96–17006 Filed 7–3–96; 8:45 am]

BILLING CODE 6325–01–M

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

7 CFR Part 301

[Docket No. 96–016–7]

Karnal Bunt; Compensation

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Interim rule and request for

comments.

SUMMARY: We are amending the

regulations to provide compensation for

certain growers and handlers, owners of

grain storage facilities, and flour millers

in order to mitigate losses and expenses

incurred because of Karnal bunt. The

payment of compensation is necessary

in order to reduce the economic impact

of the Karnal bunt quarantine on

affected wheat growers and other

individuals, and to help obtain

cooperation from affected individuals in

Karnal bunt eradication efforts.

DATES: Interim rule effective June 27,

1996. Consideration will be given only

to comments received on or before

September 3, 1996.

ADDRESSES: Please send an original and

three copies of your comments to

Docket No. 96–016–7, Regulatory

Analysis and Development, PPD,

APHIS, suite 3C03, 4700 River Road