[Federal Register Volume 78, Number 142 (Wednesday, July 24, 2013)]
[Proposed Rules]
[Pages 44467-44469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-17662]


 ========================================================================
 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. 78, No. 142 / Wednesday, July 24, 2013 / 
Proposed Rules  

[[Page 44467]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 151, 733, and 734

RIN 3206-AM87


Political Activity--State or Local Officers or Employees; Federal 
Employees Residing in Designated Localities; Federal Employees

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: OPM is issuing proposed regulations that incorporate recent 
amendments to the Hatch Act, update the contact information for the 
United States Office of Special Counsel, and update sections to conform 
to the Act's current provisions.

DATES: Written comments must be received on or before September 23, 
2013.

ADDRESSES: Comments may be mailed to Sharon M. McGowan, Acting General 
Counsel, Room 7355, United States Office of Personnel Management, 1900 
E Street NW., Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: Jo-Ann Chabot, Office of the General 
Counsel, United States Office of Personnel Management, (202) 606-1700.

SUPPLEMENTARY INFORMATION: The Hatch Act, codified at 5 U.S.C. 1501-
1508, concerns the political activities of State and local employees. 
Section 1502 previously prohibited from candidacy for elective office 
certain State and local employees whose principal employment was 
connected with an activity financed in whole or in part with loans or 
grants from the United States or a Federal agency. Section 2 of Public 
Law 112-230 amends 5 U.S.C. 1502 by applying the prohibition against 
candidacy for elective office only to certain State or local employees 
whose salaries are paid completely, directly or indirectly, by loans or 
grants made by the United States or a Federal agency. OPM's proposed 
revision to 5 CFR 151.151 reflects this change.
    Section 3 of Public Law 112-230 amends 5 U.S.C. 1501, 1502, and 
1506 by treating employees of the Government of the District of 
Columbia as State and local employees, rather than as Federal 
employees. These changes are reflected in the proposed 5 CFR 151.101 
and 151.122.
    In addition, section 3 of Public Law 112-230 amends 5 U.S.C. 7322 
by excluding employees of the Government of the District of Columbia 
from coverage under 5 U.S.C. 7323-7326, the Hatch Act provisions 
governing the political activities of Federal employees. Consequently, 
OPM proposes to remove references to the Government of the District of 
Columbia or its employees from 5 CFR 733.101, 734.101, 734.102, 
734.203, 734.305, and 734.502.
    Section 7325 of title 5, U.S.C., authorizes OPM to permit the 
Federally employed residents of certain localities to participate in 
some political activities that the Hatch Act otherwise would prohibit 
when OPM determines that, in view of special or unusual circumstances, 
it would be in the employees' domestic interest to permit such 
participation. Section 7325 specifies that these Federal employees must 
reside in: (1) a municipality or political subdivision in Maryland or 
Virginia or in the immediate vicinity of the District of Columbia, or 
(2) a municipality in which the majority of voters are employed by the 
Government of the United States. Section 3 of Public Law 112-230 amends 
section 7325 by including the District of Columbia as a third category. 
Consequently, OPM proposes to amend 5 CFR 733.107(a) to reflect this 
change in the statute.
    Under 5 U.S.C. 7326, the penalty for violating the political 
activity prohibitions in 5 U.S.C. 7323 and 7324 is removal, unless the 
Merit Systems Protection Board by a unanimous vote imposes a penalty of 
not less than a 30-day suspension without pay. Section 3 of Public Law 
112-230 amends section 7326 by adding a variety of lesser penalties and 
abolishing the requirement that the Merit Systems Protection Board must 
vote unanimously to impose a lesser penalty than removal. OPM proposes 
to revise 5 CFR 734.102(b) by adding these lesser penalties and 
removing the requirement for a unanimous vote in cases involving 
penalties other than removal. OPM also proposes to revise paragraph (a) 
of section 734.102 to update the contact information for the U.S. 
Office of Special Counsel, the Federal agency that investigates and 
prosecutes alleged Hatch Act violations, and provides advice concerning 
permissible and prohibited political activities.
    Under 5 U.S.C. 7323(a), the majority of Federal employees may 
participate actively in most partisan political activities, except for 
using their official authority or influence to interfere with, or 
affect the result of an election; running for public office in a 
partisan campaign; soliciting, accepting, or receiving political 
contributions; and, participating in political activities while on 
duty, on Federal premises, in uniform, or using a Government owned or 
leased vehicle. Individuals in the positions or agencies identified in 
section 7323(b)(2) and (3), however, are more restricted and may not 
participate actively in partisan political activities. OPM regulations 
at 5 CFR 733.102, 733.105, and 734.401 no longer conform with section 
7323(b)(2) and (3) because Congress had enacted various amendments to 
section 7323(b)(2) and (3). OPM proposes to update sections 733.102, 
733.105, and 734.401 to conform to the current provisions in 5 U.S.C. 
7323.

E.O. 12291, Federal Regulation

    I have determined that this is not a major rule as defined under 
section 1(b) of E.O. 12291, Federal Regulation.

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

5 CFR Part 151

    Political activity--State or local officers or employees.

5 CFR Part 733

    Political activity--Federal employees residing in designated 
localities.

5 CFR Part 734

    Political activity--Federal employees.


[[Page 44468]]


U.S. Office of Personnel Management.
Elaine Kaplan,
Acting Director.

    Accordingly, the Office of Personnel Management proposes to amend 5 
CFR part 151 as follows:

PART 151--POLITICAL ACTIVITY--STATE OR LOCAL OFFICERS OR EMPLOYEES

0
1. The authority citation for part 151 is revised to read as follows:

    Authority: 5 U.S.C. 1302, 1501-1508, as amended, Reorganization 
Plan No. 2 of 1978, section 102, 92 Stat. 3783, 3 CFR 1978 Comp. p. 
323; and E.O. 12107, section 1-102, 3 CFR 1978 Comp. p. 264.

0
2. In Sec.  151.101, paragraphs (b) and (d) are revised to read as 
follows:


Sec.  151.101  Definitions.

* * * * *
    (b) State or local agency means:
    (1) The executive branch of a State, municipality, or other 
political subdivision of a State, or an agency or department thereof; 
or
    (2) The executive branch of the District of Columbia, or an agency 
or department thereof.
* * * * *
    (d) State or local officer or employee means an individual employed 
by a State or local agency whose principal employment is in connection 
with an activity which is financed in whole or in part by loans or 
grants made by the United States or a Federal agency but does not 
include--
    (1) An individual who exercises no functions in connection with 
that activity.
    (2) An individual employed by an educational or research 
institution, establishment, agency, or system which is supported in 
whole or in part by -
    (i) A State or political subdivision thereof;
    (ii) The District of Columbia; or
    (iii) A recognized religious, philanthropic, or cultural 
organization.
* * * * *
0
3. In Sec.  151.121, paragraph (c) is revised to read as follows:


Sec.  151.121  Use of official authority; coercion; candidacy; 
prohibitions.

* * * * *
    (c) Be a candidate for elective office if the salary of the 
employee is paid completely, directly or indirectly, by loans or grants 
made by the United States or a Federal agency.
0
4. In Sec.  151.122, paragraph (c) is revised to read as follows:


Sec.  151.122  Candidacy; exceptions.

* * * * *
    (c) A duly elected head of an executive department of a State, 
municipality, or the District of Columbia, who is not classified under 
a merit or civil service system of a State, municipality, or the 
District of Columbia;
* * * * *

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

0
5. The authority citation for part 733 is revised to read as follows:

    Authority: 5 U.S.C. 7325.

0
6. In Sec.  733.101, the definitions of employee and on duty are 
revised to read as follows:


Sec.  733.101  Definitions.

* * * * *
    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; or
    (3) The United States Postal Service or the Postal Rate Commission.
    On Duty means the 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 in an official capacity.
* * * * *
0
7. Section 733.102 is revised to read as follows:


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

    Employees in the Criminal Division and National Security 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 from coverage under the provisions of this 
part.
0
8. In Sec.  733.105, paragraph (a) is revised to read as follows:


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

    (a) This section applied to employees who reside in designated 
localities and are employed in the following agencies or positions:
    (1) The Federal Election Commission;
    (2) The Election Assistance Commission;
    (3) The Federal Bureau of Investigation;
    (4) The Secret Service;
    (5) The Central Intelligence Agency;
    (6) The National Security Council;
    (7) The National Security Agency;
    (8) The Defense Intelligence Agency;
    (9) The Merit Systems Protection Board;
    (10) The Office of Special Counsel;
    (11) The Office of Criminal Investigation of the Internal Revenue 
Service;
    (12) The Office of Investigative Programs of the United States 
Customs Service;
    (13) The Office of Law Enforcement of the Bureau of Alcohol, 
Tobacco, and Firearms;
    (14) The National Geospatial-Intelligence Agency;
    (15) The Office of the Director of National Intelligence;
    (16) Career Senior Executive Service positions described in 5 
U.S.C. 3132(a)(4);
    (17) Administrative Law Judge positions described in 5 U.S.C. 5372;
    (18) Contract Appeals Board Member positions described in 5 U.S.C. 
5372a; or
    (19) Administrative Appeals Judge positions described in 5 U.S.C. 
5732b.
* * * * *
0
9. In Sec.  733.107, paragraph (a) is revised to read as follows:


Sec.  733.107  Designated localities.

    (a) When OPM determines that, because of special or unusual 
circumstances, it is in the domestic interest of employees to 
participate in local elections, OPM may specify as a designated 
locality:
    (1) The District of Columbia,
    (2) A municipality or political subdivision in Maryland or Virginia 
and in the immediate vicinity of the District of Columbia, or
    (3) A municipality in which the majority of voters are employed by 
the Government of the United States.
* * * * *

PART 734--POLITICAL ACTIVITIES OF FEDERAL EMPLOYEES

0
10. The authority citation for part 733 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.

0
11. In Sec.  734.101, the definitions of employee, employing office, 
and on duty are revised to read as follows:

[[Page 44469]]

Sec.  734.101  Definitions.

* * * * *
    Employee means any individual (other than the President, 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; or
    (3) The United States Postal Service or the Postal Rate Commission.
    Employing office shall have the meaning given by the head of each 
agency or instrumentality of the United States Government covered by 
this part. Each agency or instrumentality shall provide notice 
identifying the appropriate employing offices within it through 
internal agency notice procedures.
* * * * *
    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 in an official capacity.
* * * * *
0
12. In Sec.  734.102, paragraphs (a) and (b) are revised to read as 
follows:


Sec.  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. (5 U.S.C. 1212 and 1216). Advice concerning the Hatch Act 
Reform Amendments may be requested from the Office of Special Counsel:
    (1) By letter addressed to the Office of Special Counsel at 1730 M 
Street NW., Suite 218, Washington, DC 20036-4505;
    (2) By telephone on (202) 254-3650, or (1-800) 854-2824;
    (3) By fax on (202) 254-3700; or
    (4) By email at [email protected].
    (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 
penalty of removal, reduction-in-grade, debarment from Federal 
employment for a period not to exceed 5 years, suspension, reprimand, 
or an assessment of a civil penalty not to exceed $1,000, for violation 
of the political activity restrictions regulated by this part. (5 
U.S.C. 1204 and 7326).
* * * * *
0
13. In Sec.  734.203, paragraph (d) is revised to read as follows:


Sec.  734.203  Participation in nonpartisan activities.

* * * * *
    (d) Participate fully in public affairs, except as prohibited by 
other Federal law, in a manner which does not compromise his or her 
efficiency or integrity as an employee or the neutrality, efficiency, 
or integrity of the agency or instrumentality of the United States 
Government in which he or she is employed.
0
14. In Sec.  734.305, paragraph (c) is revised to read as follows:


Sec.  734.305  Soliciting or discouraging the political participation 
of certain persons.

* * * * *
    (c) Each agency or instrumentality of the United States shall 
determine when a matter is pending and ongoing within employing offices 
of the agency or instrumentality for the purposes of this part.
* * * * *
0
15. In Sec.  734.401, paragraph (a) is revised to read as follows:


Sec.  734.401  Coverage.

    (a) This subpart applies to employees in the following agencies and 
positions:
    (1) The Federal Election Commission;
    (2) The Election Assistance Commission;
    (3) The Federal Bureau of Investigation;
    (4) The Secret Service;
    (5) The Central Intelligence Agency;
    (6) The National Security Council;
    (7) The National Security Agency;
    (8) The Defense Intelligence Agency;
    (9) The Merit Systems Protection Board;
    (10) The Office of Special Counsel;
    (11) The Office of Criminal Investigation of the Internal Revenue 
Service;
    (12) The Office of Investigative Programs of the United States 
Customs Service;
    (13) The Office of Law Enforcement of the Bureau of Alcohol, 
Tobacco, and Firearms;
    (14) The Criminal Division of the Department of Justice;
    (15) The National Security Division of the Department of Justice;
    (16) The National Geospatial-Intelligence Agency;
    (17) The Office of the Director of National Intelligence;
    (18) Career Senior Executive Service positions described in 5 
U.S.C. 3132(a)(4);
    (19) Administrative Law Judge positions described in 5 U.S.C. 5372;
    (20) Contract Appeals Board Member positions described in 5 U.S.C. 
5372a; or
    (21) Administrative Appeals Judge positions described in 5 U.S.C. 
5732b.
* * * * *
0
16. In Sec.  734.502, paragraph (b) is revised to read as follows:


Sec.  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.

* * * * *
    (b) For the purposes of this subpart, normal duty hours and normal 
duty post will be determined by the head of each agency or 
instrumentality of the United States.
* * * * *
[FR Doc. 2013-17662 Filed 7-23-13; 8:45 am]
BILLING CODE 6325-48-P