[Federal Register Volume 60, Number 78 (Monday, April 24, 1995)]
[Rules and Regulations]
[Pages 20029-20032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9967]



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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Parts 83 and 84

[DoD Directive 5500.7 and DoD 5500.7-R; 0790-AG12, and 0790-AF83]


Standards of Conduct and Joint Ethics Regulation

AGENCY: Office of the Secretary of Defense, DoD.

ACTION: Final rule and request for comments.

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SUMMARY: The changes to these parts, concerning standards of conduct 
and joint ethics, correct typographical errors and update the 
regulations in accordance with changes to related statutes. The changes 
are intended to keep these parts current.

DATES: These changes are effective November 2, 1994. Comments must be 
received no later than June 23, 1995.

ADDRESSES: Forward comments to DoD Standards of Conduct Office, Office 
of General Counsel, 1600 Defense Pentagon, Washington, DC 20301-1600.

FOR FURTHER INFORMATION CONTACT:
Randi Elizabeth DuFresne, DoD Standards of Conduct Office, (703) 697-
5305, FAX (703) 697-1640.

SUPPLEMENTARY INFORMATION: On March 21, 1994, the Department of Defense 
published a final rule and request for comments on Standards of Conduct 
and Joint Ethics Regulation. See 59 FR 13212 and 13213. Two public 
comments were received. Both expressed appreciation of the regulation 
and required no further action.

Executive Order 12866

    It has been determined that these are not significant changes as 
defined under section 3(f)(1) through 3(f)(4) of Executive Order 12866.

Regulatory Flexibility Act

    It has been certified that these changes are not subject to the 
Regulatory Flexibility Act (5 U.S.C. chapter 6) because they do not 
have a significant economic impact on a substantial number of small 
entities. The changes affects only DoD employees and are to update 
existing regulations in keeping with changes to related statutes.

Paperwork Reduction Act

    It has been certified that these changes impose no reporting or 
record keeping requirements under the Paperwork Reduction Act of 1980 
(44 U.S.C. 3501-3502).

List of Subjects in 32 CFR Parts 83 and 84

    Conflicts of interest, Government procurement.

    Accordingly, 32 CFR parts 83 and 84 are amended as follows:

PART 83--[AMENDED]

    1. The authority citation for part 83 continues to read as follows:

    Authority: 5 U.S.C., 301, 7301, 7351, 7353; 5 U.S.C. App. 
(Ethics in Government Act of 1978); 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; 5 CFR part 2635.


Sec. 83.1  [Amended]

    2. Section 83.1(c) is amended by removing ``August 1989.''

PART 84--[AMENDED]

    1. The authority citation for part 84 continues to read as follows:

    Authority: 5 U.S.C., 301, 7301, 7351, 7353; 5 U.S.C. App. 
(Ethics in Government Act of 1978); 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; 5 CFR part 2635.


Sec. 84.4  [Amended]

    2. Section 84.4 is amended in paragraphs (a)(1) and (a)(4) after 
the acronyms ``DAEO'' by adding ``or designee''.
    3. Section 84.7 is amended in paragraph (c)(1) by removing 
``735.208'' and adding in its place ``735.201'', in paragraph (c)(3) by 
removing ``406'' adding in its place ``40b''; and by revising paragraph 
(c)(1)(ii), by removing the period at the end of paragraph (c)(1)(iii) 
and adding ``;or'' and by adding paragraph (c)(1)(iv) to read as 
follows:


Sec. 84.7  DoD guidance.

* * * * *
    (c) * * *
    (1) * * *
    (ii) Activities by organizations composed primarily of DoD 
employees or their dependents for the benefit of welfare funds for 
their own members or for the benefit of other DoD employees or their 
dependents, subject to the limitations of local law and of Sec. 84.9(k) 
and (l), when approved by the Head of the DoD Component or designee;
* * * * *
    (iv) Purchases of lottery tickets authorized by any State from 
blind vendors licensed to operate vending facilities in accordance with 
20 U.S.C. 107a(5).
* * * * *
    4. Section 84.9 is amended in paragraph (b) after the word 
``entities'' by removing the word ``where'' and adding in its place 
``when appointed by the head of the DoD Component command or 
organization who determines''; in paragraph (k)(1)(vi) after the word 
``composed'' by adding ``primarily''; in paragraph (k)(2) by revising 
``paragraph (d)'' to read ``paragraph (f)''; in paragraph (l)(1) 
introductory text by revising ``DoD equipment'' to read ``DoD 
facilities and equipment''; in paragraph (l)(1)(ii) after the word 
``event'' by adding ``(OPM generally has no objection to support of 
events that do not specifically target Federal employees for 
fundraising)''; and by revising paragraphs (l)(1)(vi), (l)(1)(vii) and 
(m) introductory text to read as follows:


Sec. 84.9  Official participation in non-Federal entities.

* * * * *
    (l) * * *
    (1) * * *
    (vi) The DoD Component command or organization is able and willing 
to provide the same support to comparable events that meet the criteria 
of this subsection and are sponsored by other similar non-Federal 
entities;
* * * * *
    (viii) Except for a charitable fundraising event that meets all 
other criteria for DoD participation, no admission fee (beyond what 
will cover the reasonable costs of sponsoring the event) is charged for 
the event, no admission fee (beyond what will cover the reasonable 
costs of sponsoring the event) is charged for the portion of the event 
supported by the DoD, or DoD support to the event is incidental to the 
entire event in accordance with public affairs guidance.
* * * * * [[Page 20030]] 
    (m) Relationship governed by other authorities. In addition to the 
provisions of this section, certain organizations have special 
relationships with the DoD or its employees specially recognized by law 
or by other directives. The organizations include:
* * * * *


Footnotes 14 through 26  [Redesignated as 15 through 27].

    5. Redesignate footnotes 14 through 26 as footnotes 15 through 27.
    6. Section 84.10 is amended in paragraph (a)(2) introductory text 
by removing ``, in accordance with FPM 252 and 630\12\ and related DoD 
regulations,'' and footnote 12; by redesignating paragraph (a)(2)(ii) 
as paragraph (a)(2)(iii); by revising the first sentence in paragraph 
(b); by redesignating footnote 13 as footnote 12 in paragraph (g)(5); 
and by adding a new paragraph (a)(2)(ii) and revising paragraphs (a)(3) 
and (h)(3) to read as follows:


Sec. 84.10  Personal participation in non-Federal entities.

* * * * *
    (a) * * *
    (2) * * *
    (ii) The Agency can derive some benefit from the participation or 
preparation, such as expansion of professional expertise by DoD 
employees or improved public confidence derived from the professional 
recognition of the DoD employee's competence;
* * * * *
    (3) Community support activities. Agency designees may permit 
excused absences for reasonable periods of time for their DoD employees 
to voluntarily participate in community support activities that promote 
civic awareness and uncompensated public service such as disaster 
relief events, blood donations, and voting and registering to vote.
* * * * *
    (b) * * * Except for such service in the organizations listed in 
Sec. 84.9(k)(1), a DoD employee may not serve in a personal capacity as 
an officer, member of the Board of Directors, or in any other similar 
position in any non-Federal entity offered because of their DoD 
assignment or position. * * *
* * * * *
    (h) * * *
    (3) Honoraria. Compensation for a lecture, speech or writing may be 
restricted by the honoraria prohibition of 5 U.S.C. App. (Ethics in 
Government Act of 1978, sec 501); 5 CFR part 2636, and 5 CFR 2635.807. 
However, the U.S. Office of Government Ethics, by memorandum dated 
February 2, 1994,\13\ determined in accordance with a Department of 
Justice letter to the Director, Office of Government Ethics,\14\ that 
the Department of Justice will not seek to impose penalties for 
violations of 5 U.S.C. App. (Ethics in Government Act of 1978, sec 
501); with respect to receipt of honoraria between September 28, 1993 
and the date on which the Supreme Court issues its decision on this 
matter.

    \13\See footnote 2 to Sec. 84.4(d)(7).
    \14\See footnote 2 to Sec. 84.4(d)(7).
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Sec. 84.16  [Amended]

    7. Section 84.16 is amended by removing paragraph (j)(1), 
redesignating paragraphs (j)(2) through (j)(4) as paragraphs (j)(1) 
through (j)(3).


Sec. 84.17  [Amended]

    8. Section 84.17 is amended by removing ``733'' and adding in its 
place ``734''.
    9. Section 84.18 is revised to read as follows:


Sec. 84.18  Political activities of civilian DoD employees.

    (a) Policy.
    (1) The policy governing the political activities of civilian DoD 
employees is derived from the Hatch Act Amendments, 5 U.S.C. 7321 
through 7325. Guidance on the application of the Hatch Act Amendments 
is provided by the Hatch Act Hotline at the Office of Special Counsel 
at 1-(800) 854-2824.
    (2) Primary enforcement responsibility under the Hatch Act 
Amendments lies with the Office of Special Counsel under 5 U.S.C. 
1216(c); however, DoD Components have responsibility to investigate 
allegations of prohibited political activity by excepted service 
employees of the DoD Component.
    (3) It is DoD policy to encourage civilian DoD employees and 
members of the Armed Forces to carry out the obligations of citizenship 
to the maximum extent possible consistent with the restrictions imposed 
by law and by this part.
    (b) Permissible activities. Subject to paragraphs (b) and (c) of 
this section, civilian DoD employees may, in their personal capacities:
    (1) Be candidates for public office in nonpartisan elections;
    (2) Register and vote as they choose;
    (3) Assist in voter registration drives;
    (4) Express opinions about candidates and issues;
    (5) Contribute money to political organizations;
    (6) Attend political fundraising functions;
    (7) Attend and be active at political rallies and meetings;
    (8) Join and be an active member of a political party or club;
    (9) Sign nominating petitions;
    (10) Campaign for or against referendum questions, constitutional 
amendments, or municipal ordinances;
    (11) Campaign for or against candidates in partisan elections (see 
paragraph (b)(3) of this section);
    (12) Make campaign speeches for candidates in partisan elections 
(see paragraph (b)(3) of this section);
    (13) Distribute campaign literature in partisan elections (see 
paragraph (b)(3) of this section);
    (14) Hold office in political clubs or parties (see paragraph 
(b)(3) of this section).
    (c) Limitations.
    (1) Military members are not covered by the Hatch Act Amendments, 5 
U.S.C. 7321 through 7327. Political activities of Military members are 
covered in Sec. 84.19.
    (2) Notwithstanding paragraph (a) of this section, as a matter of 
longstanding DoD policy, DoD employees who are appointed by the 
President, by and with the advice and consent of the Senate (e.g. the 
Secretary of Defense, the Secretaries of the Military Departments, 
etc.), and DoD employees who are appointed by the Secretary of Defense 
to non-career Senior Executive Service positions may not engage in 
activities that could be interpreted as associating the DoD with any 
partisan political cause or issue.
    (3) The following DoD employees (except for Presidential appointees 
who are confirmed by and with the consent of the Senate) are prohibited 
from engaging in the activities described in paragraphs (a)(11) through 
(a)(14) of this section:
    (i) Employees of the National Security Agency;
    (ii) Employees of the Defense Intelligence Agency;
    (iii) Career members of the senior executive service;
    (iv) Administrative Law Judges; and
    (v) Contract appeals board members.
    (d) Prohibited activities. Civilian DoD employees may not:
    (1) Use official authority or influence for the purpose of 
interfering with or affecting the result of an election;
    (2) Collect political contributions unless both the collector and 
the donor are members of the same Federal labor organization or 
employee organization and the donor is not a subordinate;
    (3) Knowingly solicit or discourage the political activity of any 
person who has business with DoD; [[Page 20031]] 
    (4) Engage in political activity while on duty;
    (5) Engage in political activity while in any Federal workplace;
    (6) Engage in political activity while wearing an official uniform 
or displaying official insignia identifying the office or position of 
the DoD employee;
    (7) Engage in political activity while using a Government owned or 
leased vehicle;
    (8) Solicit political contributions from the general public;
    (9) Be a candidate for public office in partisan elections;
    (10) Wear political buttons on duty;
    (11) Contribute to the political campaign of another Federal 
Government employee who is in the DoD employee's chain of command or 
supervision or who is the employing authority, including the political 
campaign to re-elect the President or Vice President.
    (e) DoD employees residing in designated localities. 
Notwithstanding the prohibitions of paragraph (c) of this section, a 
DoD employee (except those DoD employees listed in paragraph (b)(3) of 
this section) who resides in a municipality or political subdivision, 
either in the immediate vicinity of the District of Columbia or in 
which the majority of voters are employed by the Federal Government, as 
designated by OPM under 5 CFR 733.102(d) may:
    (1) Run as an independent candidate for election to a partisan 
political office in an election for local office of the municipality or 
political subdivision provided the candidacy for, and service in, the 
partisan political office shall not result in neglect of, or 
interference with, the performance of the duties of the DoD employee or 
create an actual or apparent conflict of interest; and
    (2) Accept or receive political contributions in connection with a 
local election of the municipality or political subdivision provided 
the DoD employee does not solicit political contributions from the 
general public.
    (f) Political recommendations.
    (1) The restrictions of 5 U.S.C. 3303 apply to all personnel 
actions described in 5 U.S.C. 2302(a)(2)(A) (i) through (x) for 
individuals in or applicants to the following DoD positions:
    (i) Competitive service employees;
    (ii) Career appointees in the Senior Executive Service; and
    (iii) Excepted service employees other than one who is appointed by 
the President or whose position has been determined to be of 
confidential, policy-determining, policy-making, or policy-advocating 
character.
    (2) Each personnel action with respect to a DoD employee or 
applicant, as described in paragraph (c)(1) of this section, shall be 
taken without regard to any recommendation or statement, oral or 
written, made by the following types of individuals:
    (i) Members of Congress or Congressional employees;
    (ii) Elected officials of any State (including the District of 
Columbia and the Commonwealth of Puerto Rico), county, city, or other 
subdivision thereof;
    (iii) Officials of political parties; or
    (iv) Other individuals or organizations making such recommendations 
or statements on the basis of the party affiliations of the DoD 
employee or applicant recommended.
    (3) DoD employees may solicit, accept, and consider any statement 
with respect to a DoD employee or applicant described in paragraph 
(c)(1) of this section if the statement meets one of the following 
conditions:
    (i) It is pursuant to a request or requirement of the DoD Component 
and consists solely of an evaluation of the work performance, ability, 
aptitude, and general qualifications of the DoD employee or applicant;
    (ii) It relates solely to the character and residence of the DoD 
employee or applicant;
    (iii) It is furnished pursuant to a request made by an authorized 
representative of the Government of the United States solely in order 
to determine whether the DoD employee or applicant meets suitability or 
security standards;
    (iv) It is furnished by a former employer of the DoD employee or 
applicant pursuant to a request of an agency, and consists solely of an 
evaluation of the work performance, ability, aptitude, and general 
qualifications of such DoD employee or applicant during employment with 
such former employer; or
    (v) It is furnished pursuant to a provision of law or regulation 
authorizing consideration of such statement with respect to a specific 
position or category of positions.
    (4) DoD Component Heads are required by 5 CFR 300.801 to ensure 
that DoD employees and applicants described in paragraph (c)(1) of this 
section are notified of the provisions of 5 U.S.C. 3303.
    10. Section 84.21 is amended in paragraph (a)(1)(iv) after the 
first time the word ``or'' appears by adding ``civilian DoD employees 
under other pay systems'' and by revising the heading and paragraph 
(g)(2)(iv) to read as follows:


Sec. 84.21  Public financial disclosure report (SF 278).

* * * * *
    (g) * * *
    (2) * * *
    (iv) If the Ethics Counselor agrees with the supervisor's 
evaluation that no item violates, or appears to violate, applicable 
laws or regulations, then:
    (A) The Ethics Counselor shall annotate the report or attach an 
endorsement stating that no conflicts of interest under applicable laws 
or regulations exist, and forward it to the appropriate DoD Component 
DAEO or designee; and
    (B) If there are no financial interests in non-Federal entities 
doing or seeking business with DoD reported on the SF 278, the Ethics 
Counselor may issue a memorandum with the SF 278 to the appropriate DoD 
Component DAEO or designee.
* * * * *
    11. In Sec. 84.22, paragraph (a)(2) introductory text is 
redesignated as paragraph (a)(2)(i) and paragraph (a)(2)(ii) is added 
to read as follows:


Sec. 84.22  Confidential financial disclosure report (SF 450).

* * * * *
    (a) * * *
    (2) * * *
    (ii) DoD employees who are not employed in contracting or 
procurement and who have decision making responsibilities regarding 
expenditures of less than $2,500 per purchase and less than $25,000 
cumulatively per year are excluded from the requirement to file the SF 
450. However, Agency Designees may require such DoD employees, in 
individual cases, to file the SF 450. Such DoD employees remain subject 
to conflict of interest statutes and regulations.
* * * * *
    12. Section 84.23 is amended in paragraph (a) introductory text by 
removing ``August 1989'' and paragraphs (d)(1) and (d)(2) are revised 
to read as follows:


Sec. 84.23  Report on DoD and defense related employment (DD form 
1787).

* * * * *
    (d) * * *
    (1) After the Ethics Counselor signs and dates the report, the 
Ethics Counselor shall send the original to the entire DoD Component 
DAEO or designee, who shall forward it, together with all other such 
reports that were received during the previous calendar year, to SOCO 
not later than March 15.
    (2) The DoD Component DAEO or designee shall ensure that 
appropriate data from each DD Form 1787 is [[Page 20032]] extracted and 
sent, together with all other such data from other such reports that 
were received during the previous calendar year for the entire DoD 
Component, by March 15, to the Defense Manpower Data Center (DMDC) 
where a consolidated report to Congress is compiled. DMDC will accept 
data only on computer disk using any common word processing software or 
ASCII.
* * * *
    13. Section 84.33 is amended by removing paragraphs (a)(1)(ii) and 
(a)(3) and removing the paragraph designation ``(i)'' in paragraph 
(a)(1); by redesignating paragraphs (a)(1)(A) through (a)(1)(C) as 
paragraphs (a)(1)(i) through (a)(1)(iii); in paragraph (a)(2) by 
revising ``these two statutes'' to read ``this statute''; in newly 
designated paragraph (a)(1)(ii) remove ``DoD'' and add in its place 
``DoJ''; and by revising paragraph (a) introductory text to read as 
follows:


Sec. 84.33  Restrictions on retired military members.

* * * * *
    (a) 18 U.S.C. 281(a). This statute restricts the selling activities 
of retired military officers. The provisions of this statute were 
suspended by the Federal Acquisition Streamlining Act of 1994 through 
December 31, 1996.
* * * * *
    14. Section 84.36 (d)(1) through (d)(3) are revised to read as 
follows:


Sec. 84.36  Reports of DoD and defense related employment (DD Form 
1787).

* * * * *
    (d) * * *
    (1) After the Ethics Counselor signs and dates the report, the 
Ethics Counselor shall send the original to the DoD Component DAEO or 
designee, who shall forward it, together with all other such reports 
that were received during the previous calendar year, to SOCO not later 
than March 15.
    (2) The DoD Component DAEO or designee shall ensure that 
appropriate data from each DD Form 1787 is extracted and sent, together 
with all other such data from other such reports that were received 
during the previous calendar year for the entire DoD Component, by 
March 15 to the Defense Manpower Data Center (DMDC) where a 
consolidated report to Congress is compiled. DMDC will accept data only 
on computer disk using any common word processing software or ASCII.
    (3) If steps ensuring compliance with applicable law and 
regulations are not taken by the date established, the Ethics Counselor 
shall report the matter to the DoD Component DAEO and take whatever 
other action might be required in accordance with subchapter J of this 
part.
* * * * *


Sec. 84.38  [Amended]

    15. Section 84.38 is amended in paragraph (c)(2) by revising 
``shall'' to read ``may''.

Appendix A to Part 84 [Amended]

    16. Appendix A to Part 84 is amended by removing paragraph (f) of 
section 1.

    Dated: April 18, 1995.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 95-9967 Filed 4-21-95; 8:45 am]
BILLING CODE 5000-04-M