Political Activity-State or Local Officers or Employees; Federal Employees Residing in Designated Localities; Federal Employees, 25483-25486 [2014-09628]
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25483
Rules and Regulations
Federal Register
Vol. 79, No. 86
Monday, May 5, 2014
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
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
Office of Personnel
Management.
ACTION: Final rule.
AGENCY:
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.
SUMMARY:
JoAnn 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,
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FOR FURTHER INFORMATION CONTACT:
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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
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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
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Federal Register / Vol. 79, No. 86 / Monday, May 5, 2014 / Rules and Regulations
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, § 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
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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, § 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,
§ 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.
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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
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.
2. In 151.101, paragraphs (b) and (d)
are revised to read as follows:
■
§ 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.
*
*
*
*
*
■ 3. In 151.121, paragraph (c) is revised
to read as follows:
§ 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.
■ 4. In 151.122, paragraph (c) is revised
to read as follows:
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§ 151.122
Candidacy; exceptions.
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*
(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
1. The authority citation for part 733
is revised to read as follows:
■
Authority: 5 U.S.C. 7325.d.
2. In 733.101, the definitions of
Employee and On duty are revised to
read as follows:
■
§ 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.
*
*
*
*
*
3. Section 733.102 is revised to read
as follows:
■
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§ 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.
4. In 733.105, paragraph (a) is revised
to read as follows:
■
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§ 733.105 Permitted Political Activities—
employees who reside in designated
localities and are employed in certain
agencies and positions.
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.
(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 GeospatialIntelligence 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.
*
*
*
*
*
■ 5. In 733.107, paragraph (a) is revised
to read as follows:
■
§ 733.107
§ 734.102
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
1. The authority citation for part 733
continues to read as follows:
■
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2. In 734.101, the definitions of
Employee, Employing office, and On
duty are revised to read as follows:
§ 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.
*
*
*
*
*
■ 3. In 734.102, paragraphs (a) and (b)
are revised to read as follows:
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
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(4) By email at Hatchact@osc.gov.
(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).
*
*
*
*
*
■ 4. In 734.203, paragraph (d) is revised
to read as follows:
§ 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.
■ 5. In 734.305, paragraph (c) is revised
to read as follows:
§ 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.
*
*
*
*
*
■ 6. In 734.401, paragraph (a) is revised
to read as follows:
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§ 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;
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(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 GeospatialIntelligence 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.
*
*
*
*
*
7. In 734.502, paragraph (b) is revised
to read as follows:
■
§ 734.502 Participation in political activity
while on duty, in uniform, in any room or
building occupied in the discharge of
official duties, or using a Federal vehicle.
*
*
*
*
*
(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.
*
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*
*
*
[FR Doc. 2014–09628 Filed 5–2–14; 8:45 am]
BILLING CODE 6325–48–P
NUCLEAR REGULATORY
COMMISSION
10 CFR Part 72
[NRC–2013–0271]
RIN 3150–AJ31
List of Approved Spent Fuel Storage
Casks: Transnuclear, Inc. Standardized
Advanced NUHOMS® Horizontal
Modular Storage System; Amendment
No. 3
Correction
In rule document 2014–08346
appearing on pages 21121 through
21125 in the issue of Tuesday, April 15,
2014, the document heading is corrected
to appear as seen above.
[FR Doc. C1–2014–08346 Filed 4–30–14; 8:45 am]
BILLING CODE 1505–01–D
PO 00000
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DEPARTMENT OF ENERGY
10 CFR Part 429
[Docket No. EERE–2013–BT–NOC–0023]
RIN 1904–AD12
Energy Conservation Program:
Certification of Commercial Heating,
Ventilation, and Air-Conditioning
(HVAC), Water Heating (WH), and
Refrigeration (CRE) Equipment
Office of Energy Efficiency and
Renewable Energy, Department of
Energy.
ACTION: Final rule.
AGENCY:
The U.S. Department of
Energy is revising and expanding its
existing regulations governing certifying
compliance with the applicable energy
conservation standards and the
reporting of related ratings for
commercial heating, ventilating, airconditioning (HVAC), water heating
(WH), and refrigeration equipment
covered by EPCA. As part of this final
rule, DOE is revising the information
certified to the Department for each
basic model of commercial HVAC, WH,
and refrigeration equipment to reflect
the negotiated outcomes of the
Commercial Certification Working
Group.
DATES: Effective Dates: The effective
date of this rule is June 4, 2014.
ADDRESSES: This rulemaking can be
identified by docket number EERE–
2013–BT–NOC–0023 and/or Regulatory
Identification Number (RIN) 1904–
AD12.
Docket: For access to the docket to
read background documents, or
comments received, go to the Federal
eRulemaking Portal at https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Ms.
Ashley Armstrong, U.S. Department of
Energy, Office of Energy Efficiency and
Renewable Energy, Building
Technologies Program, EE–2J, 1000
Independence Avenue SW.,
Washington, DC 20585–0121.
Telephone: 202–586–6590. Email:
Ashley.Armstrong@ee.doe.gov; and Ms.
Laura Barhydt, U.S. Department of
Energy, Office of the General Counsel,
Forrestal Building, GC–32, 1000
Independence Avenue SW.,
Washington, DC 20585. Telephone:
(202) 287–5772. Email: Laura.Barhydt@
hq.doe.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Authority and Background
A. Authority
B. Background
II. Discussion of Specific Revisions to DOE’s
Regulations Certification
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]]>Agencies
[Federal Register Volume 79, Number 86 (Monday, May 5, 2014)]
[Rules and Regulations]
[Pages 25483-25486]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-09628]
========================================================================
Rules and Regulations
Federal Register
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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.
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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 Hatchact@osc.gov.
(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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