[Federal Register Volume 79, Number 86 (Monday, May 5, 2014)]
[Rules and Regulations]
[Pages 25483-25486]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-09628]



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 Rules and Regulations
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  Federal Register / Vol. 79, No. 86 / Monday, May 5, 2014 / Rules and 
Regulations  

[[Page 25483]]



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: Final rule.

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

SUMMARY: OPM is issuing a final rule to incorporate in its political 
activity regulations the amendments to the Hatch Act added by the Hatch 
Act Modernization Act of 2012. The final rule also updates the contact 
information for the United States Office of Special Counsel, the 
Federal agency authorized by statute to investigate and prosecute 
allegations of Hatch Act violations, and to issue advisory opinions 
concerning permitted and prohibited political activities under the 
Hatch Act. Finally, the final rule updates our regulations to conform 
to current Federal employee political activity provisions.

DATES: This rule is effective June 4, 2014.

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 Modernization Act of 2012, 
Public Law 112-230, 126 Stat. 1616-1618 (Dec. 28, 2012), amended 
provisions of the Hatch Act governing the political activities of State 
and local employees, Federal employees, and employees of the Government 
of the District of Columbia. On July 24, 2013, OPM issued proposed 
regulations incorporating these amendments in its existing regulations 
at 5 CFR parts 151, 733, and 734. OPM received, and has addressed in 
this Summary of Information, one comment from a Federal employee labor 
organization concerning the proposed rule.
    The Hatch Act, codified at 5 U.S.C. 1501-1508, concerns the 
political activities of State and local employees. Before Congress 
enacted Public Law 112-230, 5 U.S.C. 1502 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 amended 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 is revising 5 CFR 151.101 to reflect this change.
    Section 3 of Public Law 112-230 amended 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. OPM is revising 5 CFR 151.101 and 151.122 to reflect these 
changes.
    In addition, section 3 of Public Law 112-230 amended 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 also 
governing the political activities of Federal employees. Consequently, 
OPM is removing 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 and 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 
amended section 7325 by including the District of Columbia as a third 
category. Consequently, OPM is amending 5 CFR 733.107(a) to reflect 
this change in the statute.
    Under 5 U.S.C. 7326, the previous penalty for violating the 
political activity prohibitions in 5 U.S.C. 7323 and 7324 was removal, 
unless the Merit Systems Protection Board by a unanimous vote imposed a 
penalty of not less than a 30-day suspension without pay. Section 3 of 
Public Law 112-230 amended section 7326 by adding a variety of lesser 
penalties to the existing penalty of removal, and abolishing the 
requirement that the Merit Systems Protection Board must vote 
unanimously to impose a lesser penalty than removal. OPM is revising 5 
CFR 734.102(b) to add these lesser penalties and remove the requirement 
for a unanimous vote in cases involving penalties other than removal. 
OPM also is revising 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.
    Employees 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 has enacted various amendments to 
section 7323(b)(2) and (3). OPM is updating sections 733.102, 733.105, 
and 734.401 to conform to the current provisions in 5 U.S.C. 7323.
    A Federal employee labor organization commented on the

[[Page 25484]]

proposed revision of OPM regulatory provisions concerning individuals 
employed in the positions and agencies listed in 5 U.S.C. 7323(b)(2) 
and (3). The labor organization noted that 5 CFR 733.102 specifically 
excludes from 5 CFR part 733 employees (except individuals appointed by 
the President by and with the advice and consent of the Senate) in the 
Criminal Division and the National Security Division of the U.S. 
Department of Justice. The labor organization further noted, however, 
that 5 CFR 734.401 (14) and (15) includes the Criminal Division and the 
National Security Division, respectively, within 5 CFR part 734, 
subpart D. The labor organization wanted to know whether or not this 
was an oversight and whether the employees excluded from part 733 may 
run for nonpartisan office.
    Excluding employees of the Criminal and National Security Divisions 
from 5 CFR part 733, while including them in 5 CFR part 734, is not an 
oversight. After Congress enacted the Hatch Act Reform Amendments of 
1993, OPM published interim regulations, 59 FR 5313 (February 4, 1994), 
excluding from 5 CFR part 733 employees in the sensitive agencies and 
positions listed in 5 U.S.C. 7323(b)(2), as well as employees in the 
Criminal Division of the Department of Justice covered under 5 U.S.C. 
7323(b)(3).
    On January 6, 1996, Congress amended 5 U.S.C. 7325, the statutory 
provision concerning the political activity of federal employees 
residing in designated localities. The amendment authorized OPM to 
permit employees covered under 5 U.S.C. 7323(b)(2) to participate in 
the local partisan elections of the designated localities specified in 
5 CFR 733. Public Law 104-93, Sec.  308, 109 Stat. 961, 966. The 
amendment, however, did not provide for employees covered under 5 
U.S.C. 7323(b)(3), i.e. the Criminal Division of the Department of 
Justice. In addition, the legislative history of this amendment did not 
include anything establishing that Congress intended to extend the 
coverage of the amendment to Criminal Division employees. Consequently, 
OPM issued regulations permitting employees covered under 5 U.S.C. 
7323(b)(2) and residing in a designated locality to participate as 
independent candidates in the local elections of that locality (63 FR 
4555, January 30, 1998). Except for employees appointed by the 
President, by and with the advice and consent of the Senate, as 
specified in 5 U.S.C. 7323(b)(3), OPM regulations continued to exclude 
employees in the Criminal Division of the Department of Justice from 5 
CFR part 733 (63 FR 4559).
    On March 9, 2006, Congress established the National Security 
Division in the Department of Justice, Public Law 109-77, Sec.  
506(b)(1), 120 Stat. 192, 248-49, and included the National Security 
Division under 5 U.S.C. 7323(b)(3), rather than under section 
7323(b)(2). Public Law 109-77, Sec.  506(b)(2), 120 Stat. 192, 249. The 
legislative history of section 506(b)(2) is silent concerning the 
political participation of employees in the National Security Division. 
However, it is clear from the history of 5 U.S.C. 7323(b)(3) and the 
accompanying regulatory provisions that, Congress had several 
opportunities to permit the employees described in 5 U.S.C. 7323(b)(3) 
to engage in the same level of political participation as employees 
covered under section 7323(b)(2), but Congress did not do so. 
Therefore, except for employees appointed by the President by and with 
the advice and consent of the Senate, OPM has excluded from 5 CFR part 
733 employees in the National Security Division of the Department of 
Justice and continues to exclude employees in the Criminal Division.
    The labor organization also wanted to know whether the employees 
excluded from part 733 may run for nonpartisan office. Employees of the 
Criminal Division and National Security Division of the Department of 
Justice may run for public office in a nonpartisan election as defined 
in 5 CFR 734.101, i.e., an election where none of the candidates 
represents a political party whose electors for the office of President 
of the United States received votes in the preceding presidential 
election.

 E.O. 12866, Federal Regulation

    This regulation 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

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.

U.S. Office of Personnel Management.
Katherine Archuleta,
Director.
    Accordingly, the Office of Personnel Management amends 5 CFR parts 
151, 733, and 734 to read 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 151.101, paragraphs (b) and (d) are revised to read as follows:


Sec.  151.101  Definitions.

    In this part:
* * * * *
    (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 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 151.122, paragraph (c) is revised to read as follows:

[[Page 25485]]

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

    Authority: 5 U.S.C. 7325.d.


0
2. In 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
3. 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
4. In 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
5. In 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
1. 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
2. In 734.101, the definitions of Employee, Employing office, and On 
duty are revised to read as follows:


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
3. In 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

[[Page 25486]]

    (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
4. In 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
5. In 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
6. In 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
7. In 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. 2014-09628 Filed 5-2-14; 8:45 am]
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