[Federal Register Volume 62, Number 121 (Tuesday, June 24, 1997)]
[Proposed Rules]
[Pages 34017-34024]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16424]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 62, No. 121 / Tuesday, June 24, 1997 / 
Proposed Rules  

[[Page 34017]]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 733

RIN 3206-AF78


Political Activity: Federal Employees Residing in Designated 
Localities

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The Office of Personnel Management (OPM) is proposing changes 
to rules concerning the political activities of Federal employees who 
reside in localities designated by OPM. The proposed rule is limited in 
scope to matters concerning exemptions for employees residing in 
designated localities and to the political activities that are 
associated with the local elections for partisan political office in 
these localities.

DATES: Written comments must be received on or before August 25, 1997.

ADDRESSES: Send written comments to Lorraine Lewis, General Counsel, 
Office of Personnel Management, Room 7355, 1900 E Street, NW, 
Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: Jo-Ann Chabot, (202) 606-1700.

SUPPLEMENTARY INFORMATION: On October 6, 1993, President Clinton signed 
the Hatch Act Reform Amendments of 1993, Public Law 103-94. The 
Amendments specifically authorize OPM to issue regulations on the 
political activities of Federal employees regarding matters described 
in 5 U.S.C. 7325, as amended, concerning Federal employees' 
participation in local elections of the localities in which they 
reside.
    On February 4, 1994, OPM published an interim regulation on the 
political activities of Federal employees residing in specified 
localities designated by OPM. 59 FR 5313. OPM received comments from 
three individuals; a Federal employee labor organization; six Federal 
agencies; and two local governments. In addition, Congress recently 
enacted an amendment to the Reform Amendments authorizing OPM to permit 
employees in specified sensitive agencies and positions to participate 
in the local elections of the designated localities in which they 
reside. OPM also has determined that the Federally employed residents 
of Spotsylvania County, Virginia, as well as the Federally employed 
residents of St. Mary's County, Maryland, qualify for a partial 
exemption from the prohibitions of 5 U.S.C. 7323(a) (2) and (3). 
Finally, in connection with its interim regulation, OPM received two 
comments which suggested that the partial exemption granted by the 
Civil Service Commission to employees residing in the District of 
Columbia is invalid. OPM is seeking further comments on this matter.
    The OPM interim regulation on the political activities of Federal 
employees residing in designated localities will remain in effect 
during this notice and comment period and until the final regulation 
for part 733 takes effect. The OPM regulation on the political 
activities of Federal employees appears at 5 CFR part 734 (1996) as 
modified by the amendments appearing at 61 FR 35088-35102 (July 5, 
1996).

Definitions

    Section 733.101 of the proposed regulation defines the terms that 
apply to part 733. OPM received a comment from one Federal agency 
concerning the definitions in the interim regulation and suggesting 
that OPM should define the term solicit. OPM agrees with this 
suggestion in view of the activities that are permitted and prohibited 
under Sec. 733.103, and proposes to add a definition of solicit to 
Sec. 733.101. OPM also proposes to add the definitions of related 
terms, such as accept, person, and receive, to Sec. 733.101 for the 
same reasons, and to add the definition of subordinate to Sec. 733.101 
in conjunction with provisions concerning uncompensated volunteer 
services that OPM proposes to add to part 733. OPM notes that the 
definitions of accept and receive cover only the acts of accepting or 
receiving something from a person officially on behalf of a candidate, 
campaign, a political party or a partisan political group. 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.
    OPM further proposes to add the definitions of candidate, campaign, 
election, on duty, partisan, partisan political group, political 
activity, political management, political party, political purpose, 
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, and uniformed service to Sec. 773.101 
because they appear as descriptive terms in part 733. Finally, the 
existing definition of political contribution does not reflect that the 
Reform Amendments allow Federal employees to solicit, accept, receive, 
and direct uncompensated volunteer services from certain individuals 
during the course of a campaign. Therefore, OPM proposes to revise the 
definition of political contribution specifically to exclude such 
services. The definitions of employee and partisan political office 
have not been changed from the definition of these terms in the interim 
regulation. All of the definitions in Sec. 733.101 of the proposed 
regulation are identical to the definitions of the same terms appearing 
in part 734 of this title.

Exclusion From Coverage

    The interim regulation excludes several categories of employees 
from coverage under part 733. The exclusionary provision in the interim 
regulation currently applies to employees in the sensitive agencies and 
positions that are described in 5 U.S.C. 7323(b)(2) and to employees of 
the Criminal Division of the Department of Justice as specified in 5 
U.S.C. 7323(b)(3). Four Federal agencies submitted comments concerning 
the exclusionary provision in the interim regulation. These agencies 
stated that employees who reside in designated localities should not be 
excluded from participation in local partisan elections as independent 
candidates, or on behalf of independent candidates, because they 
previously had been permitted to participate in these activities under 
the more restrictive provisions of the Hatch Act.
    On January 6, 1996, Congress amended the Reform Amendments by 
adding a new provision which

[[Page 34018]]

authorizes OPM to permit employees who are described in 5 U.S.C. 
7323(b)(2), and who reside in the designated localities, to participate 
in the local partisan elections of these localities. Section 308 of 
Pub. L. 104-93, 109 Stat. 961, 966. In view of the amendment to the 
Reform Amendments and the comments that OPM received on this issue, OPM 
finds that employees in the agencies and positions specified in 5 
U.S.C. 7323(b)(2) who reside in designated localities may be permitted 
to participate in the local partisan elections of those localities. 
Therefore, OPM proposes to permit these employees to participate in 
such local elections as independent candidates and in support of, or 
opposition to, independent candidates. OPM also proposes to remove 
these employees from the exclusionary provision which, for purposes of 
clarity, appears in Sec. 733.102 of the proposed regulation.
    This amendment to the Reform Amendments, however, does not mention 
the employees of the Criminal Division of the Department of Justice who 
are described in 5 U.S.C. 7323(b)(3). Moreover, the legislative history 
of the added provision does not reflect that Congress intended to 
extend the coverage of the amendment to these employees. Therefore, OPM 
proposes that employees of the Criminal Division of the Department of 
Justice will continue to be excluded from coverage under part 733, 
except for employees in the Criminal Division who are appointed by the 
President, by and with the advice and consent of the Senate. This 
tracks the exception described in the Reform Amendments, at 5 U.S.C. 
7323(b)(3), for such Presidential appointees in the Criminal Division 
at the Department of Justice.

Permitted and Prohibited Political Activities--Elections for Local 
Public Office in Designated Localities

Candidacy for Local Partisan Political Office

    The interim regulation currently permits employees to run as 
candidates in elections for local partisan political office in the 
municipality or subdivision in which they reside, but requires such 
employees to run as independent candidates. A Federal employee labor 
organization suggested that employees who reside in designated 
localities should not be required to run as independent candidates for 
election to local partisan political offices and should, instead, be 
able to run for local public office as the candidates of partisan 
political parties. The labor organization stated its view that, under 5 
U.S.C. 7325, employees who reside in designated localities have ``the 
right to run for local partisan political office and to solicit 
political contributions in support of these campaigns.'' It further 
stated that section 7325 specifically provides that such employees may 
participate actively in local political management and political 
campaigns ``without regard to the prohibitions in paragraphs (2) and 
(3) of Section 7232(a),'' which concern soliciting, accepting and 
receiving political contributions, and running for election to partisan 
political office.
    The labor organization noted that OPM relied on section 10 of the 
Reform Amendments (the Sense of the Senate) in requiring employees to 
run as independent candidates in local elections for partisan political 
office and in prohibiting employees from soliciting political 
contributions in these local elections. It noted that section 10 of the 
Reform Amendments states the Sense of the Senate that Federal employees 
should not be authorized to solicit political contributions, or to run 
for the nomination or as a candidate for local partisan political 
office, except as expressly provided under current law. The labor 
organization stated that the legislative history of the Reform 
Amendments demonstrates that section 10 was added to the Reform 
Amendments to express disagreement with the House version of the Hatch 
Act reform bill, which would have permitted all Federal employees to 
run for local partisan political office and to solicit political 
contributions from the general public. Accordingly, the labor 
organization stated that section 10 was not intended to restrict the 
activities of Federal employees in specific communities, but was aimed 
solely at the rights granted by the House bill to Federal employees in 
general.
    OPM has not adopted this suggestion. The legislative history of the 
Reform Amendments is at best inconclusive regarding the purpose behind 
including section 10 in the Reform Amendments. Moreover, the law 
itself, at 5 U.S.C. 7325, does not give to the Federally employed 
residents of designated localities the ``right'' to run for local 
partisan political office as the candidates of partisan political 
parties. Section 7325 provides that OPM ``may prescribe regulations 
permitting employees, without regard to the prohibitions in [5 U.S.C. 
7327(a)(2) and (3)], to take an active part in political management and 
political campaigns involving the municipality or other political 
subdivision in which they reside, to the extent the Office considers it 
to be in their domestic interest * * *'' when the statutory conditions 
specified in section 7325 are fulfilled.
    Independent candidates in local partisan elections clearly are 
candidates for ``partisan political office'' within the meaning of the 
Reform Amendments, which define that term as ``any office for which any 
candidate is nominated or elected as representing a party any of whose 
candidates for Presidential elector received votes in the last 
(Presidential election).'' Thus, under the Reform Amendments, an 
independent candidate runs for partisan political office when he or she 
opposes the candidates of political parties. It is clear from the 
language of the Reform Amendments, particularly the Sense of the Senate 
(section 10), as well as from the legislative history of the Reform 
Amendments that, in permitting employees to participate in a much 
broader range of political activities, Congress was especially 
concerned about the possibility that Federal employees would become 
candidates for partisan political office or would solicit other Federal 
employees as well as the general public for political contributions.
    The legislative history of the Reform Amendments shows that 
Congress was familiar with the Hatch Act provisions on the political 
activity of Federal employees in designated localities and the OPM 
regulation interpreting these provisions, and intended to preserve the 
provisions on candidacy for local partisan political office and 
soliciting political contributions in enacting the Reform Amendments. 
S. Rep. No. 103-57, 103d Cong., 1st Sess. 2, 29, 37 (1993); 138 Cong. 
Rec. S8609 (daily ed. July 13, 1993) (Remarks of Senator Roth); 138 
Cong. Rec. S8613 (daily ed. July 13, 1993 (Remarks of Senator Glenn); 
138 Cong. Rec. S8765 (daily ed. July 15, 1993) (Remarks of Senator 
Glenn). In proposing to amend the House bill by removing all of its 
provisions and adopting the provisions of the Senate bill in toto, and 
in explaining the provisions of the Senate bill, Representative Clay, 
the leading advocate of Hatch Act Reform in the House of 
Representatives, noted that: ``The Senate amendment also retains 
provisions of current law permitting political activity by employees in 
certain communities pursuant to regulations issued by [OPM].'' 138 
Cong. Rec. H6817 (daily ed. Sept. 21, 1993). The Hatch Act, like the 
Reform Amendments, did not specify that employees must run as 
independent candidates in these elections. However, regulations 
promulgated under the Hatch Act by the United States Civil Service 
Commission and later by OPM

[[Page 34019]]

required independent candidacies in these local elections. Thus, the 
legislative history of the Reform Amendments shows that the Senate bill 
(which became the Reform Amendments) did not change existing provisions 
requiring Federal employees to run as independent candidates for 
partisan political office in the local elections of the designated 
localities. Accordingly, OPM proposes to retain without change the 
current regulatory provisions that permit employees who reside in 
designated localities to run for local partisan political office but 
only as independent candidates.

Soliciting Political Contributions

    The interim regulation prohibits Federal employees from soliciting 
political contributions in connection with local elections for partisan 
political office. The same Federal employee labor organization also 
noted that employees in designated localities should be permitted to 
engage in this activity because they were permitted to do so prior to 
the Reform Amendments. Citing In the Matter of Andrew J. Panholzer, 3 
P.A.R. 88, 91 (1971), a Federal agency noted the legal precedent under 
the Hatch Act that Federal employees residing in partially exempted 
localities were free to participate in campaign activities on behalf of 
independent candidates, including soliciting political contributions 
from non-government employees.
    In Panholzer, the Civil Service Commission held that employees 
residing in a designated locality could participate actively in 
political campaigns on behalf of independent candidates for local 
public office but could not solicit political contributions from other 
Federal employees. Because employees in designated localities 
previously were permitted to solicit political contributions in local 
elections on behalf of independent candidates for partisan political 
office, OPM proposes to revise the interim regulation to permit such 
solicitation as, or on behalf of, independent candidates. Federal 
employees would, however, be prohibited from knowingly soliciting 
political contributions from other Federal employees. OPM notes that, 
notwithstanding this prohibition, employees who are not employed in the 
sensitive agencies and positions described in the Reform Amendments at 
5 U.S.C. 7323(b(2)(B) and OPM's regulation at section 733.105(a), and 
who are members of a Federal labor or Federal employee organization as 
defined in 5 CFR 734.101, still may solicit political contributions in 
accordance with the conditions specified for such solicitation in the 
Reform Amendments at 5 U.S.C. 7323(a)(2) and OPM's regulation at 5 CFR 
734.208(b).

Other Political Activities

    The interim regulation currently permits employees residing in 
designated localities to accept and receive political contributions on 
behalf of candidates for local partisan political office who represent 
political parties. Except for employees in the agencies and positions 
described in Sec. 733.105(a), employees covered by Part 733 still would 
be permitted to accept and receive political contributions on behalf of 
such candidates for local office. OPM also proposes to add provisions 
about soliciting, accepting, and receiving uncompensated volunteer 
services to part 733 because such services play such an important part 
in election campaigns for local partisan political office.

Employees Who Reside in Designated Localities and Are Not Employed in 
the Agencies and Positions Described in Sec. 733.105(a)

    Sections 733.103 and 733.104 describe the political activities that 
are permitted to employees who reside in the designated localities and 
who are not employed in the agencies and positions described in 
Sec. 733.105(a). Employees covered by Secs. 733.103 and 733.104 would 
be permitted to run for election to partisan political office in local 
elections, but only as independent candidates. They would be permitted 
to solicit political contributions but only as, or on behalf of, 
independent candidates for election to local partisan political office. 
These employees, however, would be prohibited from knowingly soliciting 
political contributions from other Federal employees, except as 
permitted under 5 U.S.C. 7323(a)(2) (A)-(C).
    Employees subject to Secs. 733.103 and 733.104 would be permitted 
to accept or receive political contributions as, or on behalf of, 
independent candidates, as well as on behalf of candidates for local 
partisan political office who represent a political party. Although 
employees would be permitted to accept or receive political 
contributions from other Federal employees, they would be prohibited 
from accepting or receiving such contributions from a subordinate 
employee. Employees would be permitted to solicit, accept, or receive 
uncompensated volunteer services as, or on behalf of independent 
candidates, as well as on behalf of candidates for local partisan 
political office who represent a political party. Although employees 
would be permitted to solicit, accept, or receive uncompensated 
volunteer services from other Federal employees, they would be 
prohibited from soliciting, accepting, or receiving such services from 
a subordinate employee. Finally, employees would be prohibited from 
political participation while they are on duty, on Federal premises, in 
uniform, or while using a Government-owned or leased vehicle.

Employees Who Reside in Designated Localities and Are Employed in the 
Agencies and Positions Described in Sec. 733.105(a)

    Sections 733.105 and 733.106 describe the political activities that 
are permitted to employees who reside in the designated localities and 
who are employed in the agencies and positions described in 
Sec. 733.105(a). Employees who are covered by Secs. 733.105 and 733.106 
would be permitted to run for election to partisan political office in 
local elections but only as independent candidates. These employees 
would be permitted to solicit political contributions but only as, or 
on behalf of, independent candidates for election to local partisan 
political office. However, they would be prohibited from knowingly 
soliciting political contributions from other Federal employees.
    Employees covered under Secs. 733.105 and 733.106 would be 
permitted to accept or receive political contributions only as, or on 
behalf of, independent candidates. They would be prohibited from 
accepting or receiving such contributions on behalf of a candidate for 
local partisan political office who represents a political party. 
Although employees would be permitted to accept or receive political 
contributions from other Federal employees, they would be prohibited 
from accepting or receiving such contributions from a subordinate 
employee. They also would be prohibited from political participation 
while they are on duty, on Federal premises, in uniform, or while using 
a Government-owned or leased vehicle.
    Employees covered by Secs. 733.105 and 733.106 would be permitted 
to solicit, accept, or receive uncompensated volunteer services only 
as, or on behalf of, independent candidates. They would be prohibited 
from soliciting, accepting, or receiving uncompensated volunteer 
services on behalf of a candidate for local partisan political office 
who represents a political party. Although employees would be permitted 
to solicit, accept, or receive uncompensated volunteer services from 
other Federal employees, they would be prohibited from soliciting, 
accepting, or

[[Page 34020]]

receiving such services from a subordinate employee.
    Finally, employees who are subject to Secs. 733.105 and 733.106 
would be permitted to participate actively in other activities 
associated with elections for local partisan political office, such as 
stuffing envelopes, making telephone calls, driving voters to the 
polls, directing a group of uncompensated volunteers, or managing the 
campaign of an independent candidate for local partisan political 
office. However, their participation in such activities would be 
limited to participation as, or on behalf of, independent candidates 
for local partisan political office. Employees would be prohibited from 
such participation on behalf of a candidate for local partisan 
political office who represents a political party.

Designated Localities

    Section 7323(a) (2) and (3) of title 5, United States Code, 
prohibits Federal employees from becoming candidates for partisan 
political office and from soliciting, accepting, or receiving political 
contributions. However, 5 U.S.C. 7325 authorizes OPM to prescribe 
regulations permitting Federal employees in certain communities to 
participate in local partisan elections, without regard to the 
prohibitions stated in 5 U.S.C. 7323(a) (2) and (3), if the 
requirements stated in section 7325 are fulfilled. The first 
requirement is that the community or political subdivision must be 
located in Maryland or Virginia and in the immediate vicinity of the 
District of Columbia. Alternatively, the majority of the community's 
registered voters must be employed by the United States Government. The 
second requirement is that OPM must determine that it is in the 
domestic interest of the employees to permit that political 
participation because of special or unusual circumstances existing in 
the municipality or political subdivision.
    Section 733.105 of the proposed regulation reflects these statutory 
requirements. Under part 733, the exemption from the prohibitions 
stated in 5 U.S.C. 7323(a) (2) and (3) would be a partial exemption 
because employees would be required to run as independent candidates 
for local partisan political office, and they would be permitted to 
participate in other political activities connected with elections for 
local public office as specified in part 733. Section 733.105 also 
includes a list of designated localities whose residents have been 
granted a partial exemption by OPM.
    Three Federal agencies, two local governments, and one individual 
submitted comments concerning the regulatory list of designated 
localities in the interim regulation for part 733. In addition, two 
individuals requested that OPM grant a partial exemption to the 
Federally employed residents of Spotsylvania County, Virginia, and one 
individual requested that OPM grant a partial exemption to the 
Federally employed residents of St. Mary's County, Maryland.

Spotsylvania County, Virginia and St. Mary's County, Maryland

    OPM proposes to grant to the Federal employees residing in 
Spotsylvania County, Virginia, and in St. Mary's County, Maryland, a 
partial exemption from the political activity restrictions in 5 U.S.C. 
7323(a) (2) and (3), and to add Spotsylvania County and St. Mary's 
County to OPM's regulatory list of designated localities in 5 CFR 
733.104. OPM has determined that Spotsylvania County and St. Mary's 
County, respectively, meet the criteria described in 5 U.S.C. 7325 and 
5 CFR 733.104 for a partial exemption to issue.
    In response to separate applications from a Federal employee and a 
retired Federal employee who reside in Spotsylvania County, Virginia, 
as well as an application from a Federal employee who resides in St. 
Mary's County, Maryland, OPM proposes to designate those counties as 
localities in which Federal employees may run as independent candidates 
for local partisan political office and may participate in other 
political activities in connection with elections for local public 
office as specified in Part 733. However, an employee's candidacy for, 
and service in, a local partisan political office must not result in 
the neglect of, or interference with, the employee's performance of the 
duties of his or her Federal position or create a conflict or apparent 
conflict of interest.
    This proposal reflects OPM's determination that special or unusual 
circumstances exist so that it is in the domestic interest of Federal 
employees residing in Spotsylvania County, Virginia, to participate in 
these political activities. OPM's determination is based upon 
documentary material provided by the applicants as well as interviews 
of both applicants and the County Administrator. Principal factors in 
OPM's determination include the proximity of Spotsylvania County to the 
District of Columbia; the statistically significant proportion of 
county residents who are Federal employees; the rapid growth of the 
county within the past few years; and significant public issues 
associated with this rapid growth. A public notice regarding this 
proposal to include Spotsylvania County in the OPM list of designated 
localities also will be published in a local newspaper serving that 
county.
    This proposal also reflects OPM's further determination that 
special or unusual circumstances exist so that it is in the domestic 
interest of Federal employees residing in St. Mary's County, Maryland, 
to participate in these political activities. OPM's determination is 
based upon documentary material provided by the applicant as well as 
interviews of the applicant and the President of the Board of County 
Commissioners. Principal factors in OPM's determination include the 
proximity of St. Mary's County to the District of Columbia; the rapidly 
increasing population of the county; significant public issues 
associated with the increase in population; the impending transfer of 
naval functions to naval facilities in that county and associated 
increases in Federal employees residing in the county; and the 
statistically significant proportion of county residents who are 
Federal employees. A public notice regarding this proposal to include 
St. Mary's County in the OPM list of designated localities also will be 
published in a local newspaper serving that county.
    If this proposal is adopted as a final rule, OPM will add 
Spotsylvania County to the list of designated Virginia municipalities 
and political subdivisions, and will add St. Mary's County to the list 
of designated Maryland municipalities and political subdivisions, in 
which Federal Government employees may run as independent candidates 
for local partisan political office and may solicit, accept, or receive 
political contributions as, or on behalf of, independent candidates in 
connection with local elections. The addition of Spotsylvania County 
will be listed among the designated Virginia municipalities and 
political subdivisions after Prince William County and before Stafford 
County. The addition of St. Mary's County to the designated Maryland 
municipalities and political subdivisions will be listed after Somerset 
and before Takoma Park.

The District of Columbia

    The District of Columbia currently is included in the OPM 
regulatory list of designated localities. The District of Columbia was 
added to this list on July 5, 1977, by the United States Civil Service 
Commission. In separate comments, two Federal agencies questioned 
whether the District of Columbia should continue to be listed as a 
partially exempt municipality in view of the unpublished memorandum

[[Page 34021]]

opinion of the United States District Court for the District of 
Columbia in Ward Three Democratic Committee versus United States, No. 
78-853 (D.D.C. Aug. 29, 1980). OPM recognizes that, when the statutory 
exemption requirements were enacted in 1940, Congress did not foresee a 
need for an exemption for the District of Columbia because the District 
held no local elections at the time and was, instead, governed by three 
Commissioners appointed by the President of the United States.
    One commentator provided a history of the district court decision, 
noting that, on May 30, 1974, the Civil Service Commission added the 
District of Columbia to the list of exempted localities at 5 CFR 
733.124, retroactively effective May 16, 1974. 39 FR 18761 (1974). In 
Joseph versus United States Civil Service Commission, 554 F. 2d 1140 
(1977), the United States Court of Appeals for the District of Columbia 
declared the exemption for the District of Columbia invalid because it 
was not published after a notice and comment period, as required by the 
Administrative Procedure Act. The appeals court held that, under the 
Hatch Act, the District of Columbia could not qualify under the first 
alternative for an exemption to issue. Id. at 1154-1155. The appeals 
court stated in this regard that:

    Although there can be no dispute that it is ``in the immediate 
vicinity of the District of Columbia,'' it is equally certain that 
it is not in the states of Maryland or Virginia. The legislative 
history of this first alternative clearly indicates that it was 
proposed to restrict the Civil Service Commission's exemption 
authority to areas adjacent to the District. (Citation omitted.) 
Admittedly the failure to include areas within the District may well 
have been due to the fact that there were no elective positions 
within the District government in 1940 when the Commission was given 
its exemption authority. (Footnote omitted.) The literal language of 
the first alternative in subsection 7327(b)(1), however, clearly 
does not include the District, and although a court should interpret 
the meaning of statutory language in light of the intent of its 
drafters, we cannot rewrite the statute to compensate for unforeseen 
circumstances.

Id. The appeals court also stated that, if the Civil Service Commission 
republished the exemption, it should furnish statistical evidence that 
a majority of District of Columbia voters were employed by the United 
States Government or the District of Columbia Government. Id. at 1152-
1157. In order to comply with the decision in Joseph, the Civil Service 
Commission subsequently proposed to add the District of Columbia to the 
list of exempted localities on May 6, 1977, 42 FR 23160 (1977), and the 
District was then added to the list of exempted localities, effective 
July 5, 1977. 42 FR 34308.
    In a second suit challenging the validity of section 733.124, the 
appeals court remanded the case to the district court to gather 
statistical evidence to determine whether the majority of registered 
voters in the District of Columbia were employed by the United States 
or the District of Columbia governments. Ward Three Democratic 
Committee versus United States, 609 F. 2d 10 (D.C. Cir. 1979). On 
remand, the district court found that, based upon the statistical 
evidence submitted by the parties, less than 50 percent of registered 
voters in the District of Columbia were employed by the United States 
Government or the District of Columbia Government. Thus, the district 
court held that Sec. 733.124(b), the regulation which provided for 
partial exemptions at that time, was ``not applicable to the District 
of Columbia and shall not be applied thereto.'' Ward Three Democratic 
Committee versus United States, No. 78-853 (D.D.C. Aug. 29, 1980). OPM 
notes that this judicial decision was based upon requirements stated in 
the Hatch Act for an exemption to issue, but the same requirements also 
appear in the Reform Amendments. OPM is requesting further comments 
from the public, in particular from the Federal, Postal Service, and 
District of Columbia government employees who are registered voters in 
the District of Columbia. In the interim, OPM will also pursue a 
legislative solution to put the District of Columbia on the same 
footing as the surrounding Virginia and Maryland localities.

Other Designated Localities

    The interim regulation includes ``Martin's Additions 1, 2, 3, and 4 
to Chevy Chase'' in its list of designated Maryland municipalities and 
subdivisions. OPM proposes to remove ``Martin's Additions 1, 2, 3, and 
4 to Chevy Chase'' from, and add ``Village of Martin's Additions'' to, 
the list of designated localities appearing in Sec. 733.104 of the 
proposed regulation. OPM based this action on a comment received from a 
former local official of Martin's Additions, who advises that 
``Martin's Additions 1, 2, 3, and 4 to Chevy Chase'' became an 
incorporated municipality in 1985. He also advises that the name of the 
subdivision was changed officially to the ``Village of Martin's 
Additions'' on its incorporation.
    The interim regulation also includes ``Chevy Chase, sections 1 and 
2'', in its list of designated localities. OPM has removed ``Chevy 
Chase, sections 1 and 2,'' from the list of designated localities in 
Sec. 733.104 of the proposed regulation and has added the ``Town of 
Chevy Chase Village'' to that list. OPM has taken this action on the 
basis of a comment received from an official of the Town of Chevy Chase 
Village, who advised that sections 1 and 2 of Chevy Chase are included 
within the Town of Chevy Chase Village.
    The interim regulation further includes the ``Town of Fairfax'' in 
its list of designated Virginia municipalities and subdivisions. OPM 
has removed the ``Town of Fairfax'' from the list of designated 
localities in Sec. 733.104 of the proposed regulation and has added the 
``City of Fairfax'' to that list. OPM has taken this action on the 
basis of information received from the Office of the City Attorney for 
the City of Fairfax regarding a Transition Order issued on June 30, 
1961, In the Matter of the Town of Fairfax, Virginia, Applying to 
Become a City of The Second Class, Circuit Court of the County of 
Fairfax, Law No. 10031, and amendment of the Town Charter by the 
Virginia General Assembly, Acts of Assembly 1962, Ch. 468.
    In connection with the regulatory list of designated localities, an 
individual commented generally that some localities on the list may no 
longer fulfill the statutory requirements for designation as an exempt 
locality and should therefore be removed from the list. Except in the 
possible case of the District of Columbia, OPM does not have any 
evidence to suggest that these localities may no longer qualify for a 
partial exemption.

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 this regulation will not have a significant economic 
impact on a substantial number of small entities because the changes 
will affect only employees of the Federal Government.

List of Subjects in 5 CFR Part 733

    Political activities (Government employees).

Office of Personnel Management.
James B. King,
Director.

    Accordingly, the Office of Personnel Management proposes to revise 
5 CFR part 733 as follows:

[[Page 34022]]

PART 733--POLITICAL ACTIVITY--FEDERAL EMPLOYEES RESIDING IN 
DESIGNATED LOCALITIES

Sec.
733.101  Definitions.
733.102  Exclusion of employees in the Criminal Division of the 
United States Department of Justice.
733.103  Permitted political activities--employees who reside in 
designated localities.
733.104  Prohibited political activities--employees who reside in 
designated localities.
733.105  Permitted political activities--employees who reside in 
designated localities and are employed in certain agencies and 
positions.
733.106  Prohibited political activities--employees who reside in 
designated localities and are employed in certain agencies and 
positions.
733.107  Designated localities.

    Authority: 5 U.S.C. 7325; sec. 8 of Pub. L. 104-93, 109 Stat. 
961, 966 (Jan. 6, 1996).

Sec. 733.101  Definitions.

    In this part:
    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.
    Candidate means an individual who seeks nomination or election to 
any elective office whether or not the person is elected. An individual 
is deemed to be a candidate if the individual has received political 
contributions or made expenditures or has consented to another person 
receiving contributions or making expenditures with a view to bringing 
about the individual's nomination or election.
    Campaign means all acts done by a candidate and his or her 
adherents to obtain a majority or plurality of the votes to be cast 
toward a nomination or in an election.
    Election includes a primary, special, runoff, or general election.
    Employee means:
    Any individual (other than the President, the Vice President, or a 
member of the uniformed services) employed or holding office in--
    (1) An Executive agency other than the General Accounting Office;
    (2) A position within the competitive service which is not in an 
Executive agency;
    (3) The government of the District of Columbia, other than the 
Mayor or a member of the City Council or the Recorder of Deeds; or
    (4) The United States Postal Service or the Postal Rate Commission.
    On Duty means the time period when an employee is:
    (1) In a pay status other than paid leave, compensatory time off, 
credit hours, time off as an incentive award, or excused or authorized 
absence (including leave without pay); or
    (2) Representing any agency or instrumentality of the United States 
Government or any agency or instrumentality of the District of Columbia 
Government in an official capacity.
    Partisan when used as an adjective means related to a political 
party.
    Partisan political group means any committee, club, or other 
organization which is affiliated with a political party or candidate 
for public office in a partisan election, or organized for a partisan 
purpose, or which engages in partisan political activity.
    Partisan political office means any office for which any candidate 
is nominated or elected as representing a party any of whose candidates 
for Presidential elector received votes in the last preceding election 
at which Presidential electors were selected, but does not include any 
office or position within a political party or affiliated organization.
    Person means an individual; a State, local, or foreign government; 
or a corporation and the subsidiaries it controls, company, 
association, firm, partnership, society, joint stock company, or any 
other organization or institution, including any officer, employee, or 
agent of such person or entity.
    Political activity means an activity directed toward the success or 
failure of a political party, candidate for partisan political office, 
or partisan political group.
    Political contribution means any gift, subscription, loan, advance, 
or deposit of money or anything of value, made for any political 
purpose.
    (1) A political contribution includes:
    (i) Any contract, promise, or agreement, express or implied, 
whether or not legally enforceable, to make a contribution for any 
political purpose;
    (ii) Any payment by any person, other than a candidate or a 
political party or affiliated organization, of compensation for the 
personal services of another person which are rendered to any candidate 
or political party or affiliated organization without charge for any 
political purpose; and
    (iii) The provision of personal services, paid or unpaid, for any 
political purpose.
    (2) A political contribution does not include the value of services 
provided without compensation by any individual who volunteers on 
behalf of any candidate, campaign, political party, or partisan 
political group.
    Political management means the direction or supervision of a 
partisan political group or campaign for partisan political office.
    Political party means a national political party, a State political 
party, or an affiliated organization.
    Political purpose means an objective of promoting or opposing a 
political party, candidate for partisan political office, or partisan 
political group.
    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.
    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 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.
    Solicit means to request expressly of another person that he or she 
contribute something to a candidate, a campaign, a political party, or 
partisan political group.
    Subordinate refers to the relationship between two employees when 
one employee is under the supervisory authority, control or 
administrative direction of the other employee.
    Uniformed services means uniformed services as defined in 5 U.S.C. 
2101(3).


Sec. 733.102  Exclusion of employees in the Criminal Division of the 
United States Department of Justice.

    Employees in the Criminal Division in the Department of Justice 
(except employees appointed by the President, by and with the advice 
and consent of the Senate) specifically are excluded

[[Page 34023]]

from coverage under the provisions of this part.


Sec. 733.103  Permitted political activities--employees who reside in 
designated localities.

    (a) This section does not apply to employees in the agencies and 
positions described in Sec. 733.105(a).
    (b) Employees who reside in a municipality or political subdivision 
designated by OPM under Sec. 733.107 may:
    (1) Run as independent candidates for election to partisan 
political office in elections for local office in the municipality or 
political subdivision;
    (2) Solicit, accept, or receive a political contribution as, or on 
behalf of, an independent candidate for partisan political office in 
elections for local office in the municipality or political 
subdivision;
    (3) Accept or receive a political contribution on behalf of an 
individual who is a candidate for local partisan political office and 
who represents a political party;
    (4) Solicit, accept, or receive uncompensated volunteer services as 
an independent candidate, or on behalf of an independent candidate, for 
local partisan public office, in connection with the local elections of 
the municipality or subdivision; and
    (5) Solicit, accept, or receive uncompensated volunteer services on 
behalf of an individual who is a candidate for local partisan political 
office and who represents a political party.


Sec. 733.104  Prohibited political activities--employees who reside in 
designated localities.

    (a) This section does not apply to employees in the agencies and 
positions described in Sec. 733.105(a).
    (b) Employees who reside in a municipality or political subdivision 
designated by OPM under Sec. 733.107 may not:
    (1) Run as the representative of a political party for local 
partisan political office;
    (2) Solicit a political contribution on behalf of an individual who 
is a candidate for local partisan political office and who represents a 
political party;
    (3) Knowingly solicit a political contribution from any Federal 
employee, except as permitted under 5 U.S.C. 7323(a)(2) (A)-(C).
    (4) Accept or receive a political contribution from a subordinate; 
or
    (5) Solicit, accept, or receive uncompensated volunteer services 
from a subordinate for any political purpose.
    (c) An employee covered under this section may not participate in 
political activities:
    (1) While he or she is on duty:
    (2) While he or she is wearing a uniform, badge, or insignia that 
identifies the employing agency or instrumentality or the position of 
the employee;
    (3) While he or she is in any 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; or
    (4) While using a Government-owned or leased vehicle or while using 
a privately owned vehicle in the discharge of official duties.
    (d) An employee described in 5 U.S.C. 7324(b)(2) may participate in 
political activity otherwise prohibited by Sec. 733.104(c) if the costs 
associated with that political activity are not paid for by money 
derived from the Treasury of the United States.
    (e) Candidacy for, and service in, a partisan political office 
shall not result in neglect of, or interference with, the performance 
of the duties of the employee or create a conflict, or apparent 
conflict, of interest.


Sec. 733.105  Permitted political activities--employees who reside in 
designated localities and are employed in certain agencies and 
positions.

    (a) This section applies to employees who reside in designated 
localities and are employed in the following agencies or positions:
    (1) Federal Election Commission;
    (2) Federal Bureau of Investigation;
    (3) Secret Service;
    (4) Central Intelligence Agency;
    (5) National Security Council;
    (6) National Security Agency;
    (7) Defense Intelligence Agency;
    (8) Merit Systems Protection Board;
    (9) United States Office of Special Counsel;
    (10) Office of Criminal Investigation of the Internal Revenue 
Service;
    (11) Office of Investigative Programs of the United States Customs 
Service;
    (12) Office of Law Enforcement of the Bureau of Alcohol, Tobacco, 
and Firearms;
    (13) Central Imagery Office;
    (14) Career appointees in the Senior Executive Service;
    (15) Administrative Law Judges; and
    (16) Contract appeals board members described in 5 U.S.C. 5372a.
    (b) Employees who are covered under this section and who reside in 
a municipality or political subdivision designated by OPM under 
Sec. 733.107 may:
    (1) Run as independent candidates for election to partisan 
political office in elections for local office in the municipality or 
political subdivision;
    (2) Solicit, accept, or receive a political contribution as, or on 
behalf of, an independent candidate for partisan political office in 
elections for local office in the municipality or political 
subdivision;
    (3) Solicit, accept, or receive uncompensated volunteer services 
as, or on behalf of, an independent candidate for partisan political 
office in elections for local office in the municipality or 
subdivision; and
    (4) Take an active part in other political activities associated 
with elections for local partisan political office and in managing the 
campaigns of candidates for election to local partisan political office 
in the municipality or political subdivision, but only as an 
independent candidate or on behalf of, or in opposition to, an 
independent candidate.


Sec. 733.106  Prohibited political activities--employees who reside in 
designated localities and are employed in certain agencies and 
positions.

    (a) Employees who are employed in the agencies and positions 
described in Sec. 733.105(a), and who reside in a municipality or 
political subdivision designated by OPM under Sec. 733.107, may not:
    (1) Run as the representative of a political party for local 
partisan political office;
    (2) Solicit, accept, or receive a political contribution on behalf 
of an individual who is a candidate for local partisan political office 
and who represents a political party;
    (3) Knowingly solicit a political contribution from any Federal 
employee;
    (4) Accept or receive a political contribution from a subordinate;
    (5) Solicit, accept, or receive uncompensated volunteer services on 
behalf of an individual who is a candidate for local partisan political 
office and who represents a political party;
    (6) Solicit, accept, or receive uncompensated volunteer services 
from a subordinate for any political purpose; or
    (7) Take an active part in other political activities associated 
with elections for local partisan political office, when such 
participation occurs on behalf of a political party, partisan political 
group, or a candidate for local partisan political office who 
represents a political party.

[[Page 34024]]

    (b) An employee covered under this section may not participate in 
political activities:
    (1) While he or she is on duty:
    (2) While he or she is wearing a uniform, badge, or insignia that 
identifies the employing agency or instrumentality or the position of 
the employee;
    (3) While he or she is in any 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; or
    (4) While using a Government-owned or leased vehicle or while using 
a privately owned vehicle in the discharge of official duties.
    (c) An employee described in 5 U.S.C. 7324(b)(2) may participate in 
political activity otherwise prohibited by Sec. 733.104(b) if the costs 
associated with that political activity are not paid for by money 
derived from the Treasury of the United States.
    (d) Candidacy for, and service in, a partisan political office 
shall not result in neglect of, or interference with, the performance 
of the duties of the employee or create a conflict, or apparent 
conflict, of interest.


Sec. 733.107  Designated localities.

    (a) OPM may designate a municipality or political subdivision in 
Maryland or Virginia and in the immediate vicinity of the District of 
Columbia, or a municipality in which the majority of voters are 
employed by the Government of the United States, when OPM determines 
that, because of special or unusual circumstances, it is in the 
domestic interest of employees to participate in local elections.
    (b) Information as to the documentation required to support a 
request for designation is furnished by the General Counsel of OPM on 
request.
    (c) The following municipalities and political subdivisions have 
been designated, effective on the day specified:

In Maryland

Annapolis (May 16, 1941).
Anne Arundel County (March 14, 1973).
Berwyn Heights (June 15, 1944).
Bethesda (Feb. 17, 1943).
Bladensburg (April 20, 1942).
Bowie (April 11, 1952).
Brentwood (Sept. 26, 1940).
Calvert County (June 18, 1992).
Capitol Heights (Nov. 12, 1940).
Cheverly (Dec. 18, 1940).
Chevy Chase, section 3 (Oct. 8, 1940).
Chevy Chase, section 4 (Oct. 2, 1940).
Chevy Chase View (Feb. 26, 1941).
Chevy Chase Village, Town of (March 4, 1941).
College Park (June 13, 1945).
Cottage City (Jan. 15, 1941).
District Heights (Nov. 2, 1940).
Edmonston (Oct. 24, 1940).
Fairmont Heights (Oct. 24, 1940).
Forest Heights (April 22, 1949).
Frederick County (May 31, 1991).
Garrett Park (Oct. 2, 1940).
Glenarden (May 21, 1941).
Glen Echo (Oct. 22, 1940).
Greenbelt (Oct. 4, 1940).
Howard County (April 25, 1974).
Hyattsville (Sept. 20, 1940).
Kensington (Nov. 8, 1940).
Landover Hills (May 5, 1945).
Martin's Additions, Village of (Feb. 13, 1941).
Montgomery County (April 30, 1964).
Morningside (May 19, 1949).
Mount Rainier (Nov. 22, 1940).
New Carrollton (July 7, 1981).
North Beach (Sept. 20, 1940).
North Brentwood (May 6, 1941).
North Chevy Chase (July 22, 1942).
Northwest Park (Feb. 17, 1943).
Prince Georges County (June 19, 1962).
Riverdale (Sept. 26, 1940).
Rockville (April 15, 1948).
Seat Pleasant (Aug. 31, 1942).
Somerset (Nov. 22, 1940).
St. Mary's County (date to be determined at a later date).
Takoma Park (Oct. 22, 1940).
University Park (Jan. 18, 1941).
Washington Grove (April 5, 1941).

In Virignia

Alexandria (April 15, 1941).
Arlington County (Sept. 9, 1940).
Clifton (July 14, 1941).
Fairfax, City of (Feb. 9, 1954).
Fairfax County (Nov. 10, 1949).
Falls Church (June 6, 1941).
Herndon (April 7, 1945).
Loudoun County (Oct. 1, 1971).
Manassas (Jan. 8, 1980).
Manassas Park (March 4, 1980).
Portsmouth (Feb. 27, 1958).
Prince William County (Feb. 14, 1967).
Spotsylvania County (date to be determined at a later date).
Stafford County (Nov. 2, 1979).
Vienna (March 18, 1946).

Other Municipalities

Anchorage, Alaska (Dec. 29, 1947).
Benicia, Calif. (Feb. 20, 1948).
Bremerton, Wash. (Feb. 27, 1946).
Centerville, Ga. (Sept. 16, 1971).
Crane, Ind. (Aug. 3, 1967).
District of Columbia (July 5, 1977).
Elmer City, Wash. (Oct. 28, 1947).
Huachuca City, Ariz. (April 9, 1959).
New Johnsonville, Tenn. (April 26, 1956).
Norris, Tenn. (May 6, 1959).
Port Orchard, Wash. (Feb. 27, 1946).
Sierra Vista, Ariz. (Oct. 5, 1955).
Warner Robins, Ga. (March 19, 1948).

[FR Doc. 97-16424 Filed 6-23-97; 8:45 am]
BILLING CODE 6325-01-P