[Federal Register Volume 60, Number 78 (Monday, April 24, 1995)]
[Rules and Regulations]
[Pages 20029-20032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9967]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Parts 83 and 84
[DoD Directive 5500.7 and DoD 5500.7-R; 0790-AG12, and 0790-AF83]
Standards of Conduct and Joint Ethics Regulation
AGENCY: Office of the Secretary of Defense, DoD.
ACTION: Final rule and request for comments.
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SUMMARY: The changes to these parts, concerning standards of conduct
and joint ethics, correct typographical errors and update the
regulations in accordance with changes to related statutes. The changes
are intended to keep these parts current.
DATES: These changes are effective November 2, 1994. Comments must be
received no later than June 23, 1995.
ADDRESSES: Forward comments to DoD Standards of Conduct Office, Office
of General Counsel, 1600 Defense Pentagon, Washington, DC 20301-1600.
FOR FURTHER INFORMATION CONTACT:
Randi Elizabeth DuFresne, DoD Standards of Conduct Office, (703) 697-
5305, FAX (703) 697-1640.
SUPPLEMENTARY INFORMATION: On March 21, 1994, the Department of Defense
published a final rule and request for comments on Standards of Conduct
and Joint Ethics Regulation. See 59 FR 13212 and 13213. Two public
comments were received. Both expressed appreciation of the regulation
and required no further action.
Executive Order 12866
It has been determined that these are not significant changes as
defined under section 3(f)(1) through 3(f)(4) of Executive Order 12866.
Regulatory Flexibility Act
It has been certified that these changes are not subject to the
Regulatory Flexibility Act (5 U.S.C. chapter 6) because they do not
have a significant economic impact on a substantial number of small
entities. The changes affects only DoD employees and are to update
existing regulations in keeping with changes to related statutes.
Paperwork Reduction Act
It has been certified that these changes impose no reporting or
record keeping requirements under the Paperwork Reduction Act of 1980
(44 U.S.C. 3501-3502).
List of Subjects in 32 CFR Parts 83 and 84
Conflicts of interest, Government procurement.
Accordingly, 32 CFR parts 83 and 84 are amended as follows:
PART 83--[AMENDED]
1. The authority citation for part 83 continues to read as follows:
Authority: 5 U.S.C., 301, 7301, 7351, 7353; 5 U.S.C. App.
(Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR,
1989 Comp., p. 215 as modified by E.O. 12731, 55 FR 42547, 3 CFR,
1990 Comp., p. 306; 5 CFR part 2635.
Sec. 83.1 [Amended]
2. Section 83.1(c) is amended by removing ``August 1989.''
PART 84--[AMENDED]
1. The authority citation for part 84 continues to read as follows:
Authority: 5 U.S.C., 301, 7301, 7351, 7353; 5 U.S.C. App.
(Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR,
1989 Comp., p. 215 as modified by E.O. 12731, 55 FR 42547, 3 CFR,
1990 Comp., p. 306; 5 CFR part 2635.
Sec. 84.4 [Amended]
2. Section 84.4 is amended in paragraphs (a)(1) and (a)(4) after
the acronyms ``DAEO'' by adding ``or designee''.
3. Section 84.7 is amended in paragraph (c)(1) by removing
``735.208'' and adding in its place ``735.201'', in paragraph (c)(3) by
removing ``406'' adding in its place ``40b''; and by revising paragraph
(c)(1)(ii), by removing the period at the end of paragraph (c)(1)(iii)
and adding ``;or'' and by adding paragraph (c)(1)(iv) to read as
follows:
Sec. 84.7 DoD guidance.
* * * * *
(c) * * *
(1) * * *
(ii) Activities by organizations composed primarily of DoD
employees or their dependents for the benefit of welfare funds for
their own members or for the benefit of other DoD employees or their
dependents, subject to the limitations of local law and of Sec. 84.9(k)
and (l), when approved by the Head of the DoD Component or designee;
* * * * *
(iv) Purchases of lottery tickets authorized by any State from
blind vendors licensed to operate vending facilities in accordance with
20 U.S.C. 107a(5).
* * * * *
4. Section 84.9 is amended in paragraph (b) after the word
``entities'' by removing the word ``where'' and adding in its place
``when appointed by the head of the DoD Component command or
organization who determines''; in paragraph (k)(1)(vi) after the word
``composed'' by adding ``primarily''; in paragraph (k)(2) by revising
``paragraph (d)'' to read ``paragraph (f)''; in paragraph (l)(1)
introductory text by revising ``DoD equipment'' to read ``DoD
facilities and equipment''; in paragraph (l)(1)(ii) after the word
``event'' by adding ``(OPM generally has no objection to support of
events that do not specifically target Federal employees for
fundraising)''; and by revising paragraphs (l)(1)(vi), (l)(1)(vii) and
(m) introductory text to read as follows:
Sec. 84.9 Official participation in non-Federal entities.
* * * * *
(l) * * *
(1) * * *
(vi) The DoD Component command or organization is able and willing
to provide the same support to comparable events that meet the criteria
of this subsection and are sponsored by other similar non-Federal
entities;
* * * * *
(viii) Except for a charitable fundraising event that meets all
other criteria for DoD participation, no admission fee (beyond what
will cover the reasonable costs of sponsoring the event) is charged for
the event, no admission fee (beyond what will cover the reasonable
costs of sponsoring the event) is charged for the portion of the event
supported by the DoD, or DoD support to the event is incidental to the
entire event in accordance with public affairs guidance.
* * * * * [[Page 20030]]
(m) Relationship governed by other authorities. In addition to the
provisions of this section, certain organizations have special
relationships with the DoD or its employees specially recognized by law
or by other directives. The organizations include:
* * * * *
Footnotes 14 through 26 [Redesignated as 15 through 27].
5. Redesignate footnotes 14 through 26 as footnotes 15 through 27.
6. Section 84.10 is amended in paragraph (a)(2) introductory text
by removing ``, in accordance with FPM 252 and 630\12\ and related DoD
regulations,'' and footnote 12; by redesignating paragraph (a)(2)(ii)
as paragraph (a)(2)(iii); by revising the first sentence in paragraph
(b); by redesignating footnote 13 as footnote 12 in paragraph (g)(5);
and by adding a new paragraph (a)(2)(ii) and revising paragraphs (a)(3)
and (h)(3) to read as follows:
Sec. 84.10 Personal participation in non-Federal entities.
* * * * *
(a) * * *
(2) * * *
(ii) The Agency can derive some benefit from the participation or
preparation, such as expansion of professional expertise by DoD
employees or improved public confidence derived from the professional
recognition of the DoD employee's competence;
* * * * *
(3) Community support activities. Agency designees may permit
excused absences for reasonable periods of time for their DoD employees
to voluntarily participate in community support activities that promote
civic awareness and uncompensated public service such as disaster
relief events, blood donations, and voting and registering to vote.
* * * * *
(b) * * * Except for such service in the organizations listed in
Sec. 84.9(k)(1), a DoD employee may not serve in a personal capacity as
an officer, member of the Board of Directors, or in any other similar
position in any non-Federal entity offered because of their DoD
assignment or position. * * *
* * * * *
(h) * * *
(3) Honoraria. Compensation for a lecture, speech or writing may be
restricted by the honoraria prohibition of 5 U.S.C. App. (Ethics in
Government Act of 1978, sec 501); 5 CFR part 2636, and 5 CFR 2635.807.
However, the U.S. Office of Government Ethics, by memorandum dated
February 2, 1994,\13\ determined in accordance with a Department of
Justice letter to the Director, Office of Government Ethics,\14\ that
the Department of Justice will not seek to impose penalties for
violations of 5 U.S.C. App. (Ethics in Government Act of 1978, sec
501); with respect to receipt of honoraria between September 28, 1993
and the date on which the Supreme Court issues its decision on this
matter.
\13\See footnote 2 to Sec. 84.4(d)(7).
\14\See footnote 2 to Sec. 84.4(d)(7).
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Sec. 84.16 [Amended]
7. Section 84.16 is amended by removing paragraph (j)(1),
redesignating paragraphs (j)(2) through (j)(4) as paragraphs (j)(1)
through (j)(3).
Sec. 84.17 [Amended]
8. Section 84.17 is amended by removing ``733'' and adding in its
place ``734''.
9. Section 84.18 is revised to read as follows:
Sec. 84.18 Political activities of civilian DoD employees.
(a) Policy.
(1) The policy governing the political activities of civilian DoD
employees is derived from the Hatch Act Amendments, 5 U.S.C. 7321
through 7325. Guidance on the application of the Hatch Act Amendments
is provided by the Hatch Act Hotline at the Office of Special Counsel
at 1-(800) 854-2824.
(2) Primary enforcement responsibility under the Hatch Act
Amendments lies with the Office of Special Counsel under 5 U.S.C.
1216(c); however, DoD Components have responsibility to investigate
allegations of prohibited political activity by excepted service
employees of the DoD Component.
(3) It is DoD policy to encourage civilian DoD employees and
members of the Armed Forces to carry out the obligations of citizenship
to the maximum extent possible consistent with the restrictions imposed
by law and by this part.
(b) Permissible activities. Subject to paragraphs (b) and (c) of
this section, civilian DoD employees may, in their personal capacities:
(1) Be candidates for public office in nonpartisan elections;
(2) Register and vote as they choose;
(3) Assist in voter registration drives;
(4) Express opinions about candidates and issues;
(5) Contribute money to political organizations;
(6) Attend political fundraising functions;
(7) Attend and be active at political rallies and meetings;
(8) Join and be an active member of a political party or club;
(9) Sign nominating petitions;
(10) Campaign for or against referendum questions, constitutional
amendments, or municipal ordinances;
(11) Campaign for or against candidates in partisan elections (see
paragraph (b)(3) of this section);
(12) Make campaign speeches for candidates in partisan elections
(see paragraph (b)(3) of this section);
(13) Distribute campaign literature in partisan elections (see
paragraph (b)(3) of this section);
(14) Hold office in political clubs or parties (see paragraph
(b)(3) of this section).
(c) Limitations.
(1) Military members are not covered by the Hatch Act Amendments, 5
U.S.C. 7321 through 7327. Political activities of Military members are
covered in Sec. 84.19.
(2) Notwithstanding paragraph (a) of this section, as a matter of
longstanding DoD policy, DoD employees who are appointed by the
President, by and with the advice and consent of the Senate (e.g. the
Secretary of Defense, the Secretaries of the Military Departments,
etc.), and DoD employees who are appointed by the Secretary of Defense
to non-career Senior Executive Service positions may not engage in
activities that could be interpreted as associating the DoD with any
partisan political cause or issue.
(3) The following DoD employees (except for Presidential appointees
who are confirmed by and with the consent of the Senate) are prohibited
from engaging in the activities described in paragraphs (a)(11) through
(a)(14) of this section:
(i) Employees of the National Security Agency;
(ii) Employees of the Defense Intelligence Agency;
(iii) Career members of the senior executive service;
(iv) Administrative Law Judges; and
(v) Contract appeals board members.
(d) Prohibited activities. Civilian DoD employees may not:
(1) Use official authority or influence for the purpose of
interfering with or affecting the result of an election;
(2) Collect political contributions unless both the collector and
the donor are members of the same Federal labor organization or
employee organization and the donor is not a subordinate;
(3) Knowingly solicit or discourage the political activity of any
person who has business with DoD; [[Page 20031]]
(4) Engage in political activity while on duty;
(5) Engage in political activity while in any Federal workplace;
(6) Engage in political activity while wearing an official uniform
or displaying official insignia identifying the office or position of
the DoD employee;
(7) Engage in political activity while using a Government owned or
leased vehicle;
(8) Solicit political contributions from the general public;
(9) Be a candidate for public office in partisan elections;
(10) Wear political buttons on duty;
(11) Contribute to the political campaign of another Federal
Government employee who is in the DoD employee's chain of command or
supervision or who is the employing authority, including the political
campaign to re-elect the President or Vice President.
(e) DoD employees residing in designated localities.
Notwithstanding the prohibitions of paragraph (c) of this section, a
DoD employee (except those DoD employees listed in paragraph (b)(3) of
this section) who resides in a municipality or political subdivision,
either in the immediate vicinity of the District of Columbia or in
which the majority of voters are employed by the Federal Government, as
designated by OPM under 5 CFR 733.102(d) may:
(1) Run as an independent candidate for election to a partisan
political office in an election for local office of the municipality or
political subdivision provided the candidacy for, and service in, the
partisan political office shall not result in neglect of, or
interference with, the performance of the duties of the DoD employee or
create an actual or apparent conflict of interest; and
(2) Accept or receive political contributions in connection with a
local election of the municipality or political subdivision provided
the DoD employee does not solicit political contributions from the
general public.
(f) Political recommendations.
(1) The restrictions of 5 U.S.C. 3303 apply to all personnel
actions described in 5 U.S.C. 2302(a)(2)(A) (i) through (x) for
individuals in or applicants to the following DoD positions:
(i) Competitive service employees;
(ii) Career appointees in the Senior Executive Service; and
(iii) Excepted service employees other than one who is appointed by
the President or whose position has been determined to be of
confidential, policy-determining, policy-making, or policy-advocating
character.
(2) Each personnel action with respect to a DoD employee or
applicant, as described in paragraph (c)(1) of this section, shall be
taken without regard to any recommendation or statement, oral or
written, made by the following types of individuals:
(i) Members of Congress or Congressional employees;
(ii) Elected officials of any State (including the District of
Columbia and the Commonwealth of Puerto Rico), county, city, or other
subdivision thereof;
(iii) Officials of political parties; or
(iv) Other individuals or organizations making such recommendations
or statements on the basis of the party affiliations of the DoD
employee or applicant recommended.
(3) DoD employees may solicit, accept, and consider any statement
with respect to a DoD employee or applicant described in paragraph
(c)(1) of this section if the statement meets one of the following
conditions:
(i) It is pursuant to a request or requirement of the DoD Component
and consists solely of an evaluation of the work performance, ability,
aptitude, and general qualifications of the DoD employee or applicant;
(ii) It relates solely to the character and residence of the DoD
employee or applicant;
(iii) It is furnished pursuant to a request made by an authorized
representative of the Government of the United States solely in order
to determine whether the DoD employee or applicant meets suitability or
security standards;
(iv) It is furnished by a former employer of the DoD employee or
applicant pursuant to a request of an agency, and consists solely of an
evaluation of the work performance, ability, aptitude, and general
qualifications of such DoD employee or applicant during employment with
such former employer; or
(v) It is furnished pursuant to a provision of law or regulation
authorizing consideration of such statement with respect to a specific
position or category of positions.
(4) DoD Component Heads are required by 5 CFR 300.801 to ensure
that DoD employees and applicants described in paragraph (c)(1) of this
section are notified of the provisions of 5 U.S.C. 3303.
10. Section 84.21 is amended in paragraph (a)(1)(iv) after the
first time the word ``or'' appears by adding ``civilian DoD employees
under other pay systems'' and by revising the heading and paragraph
(g)(2)(iv) to read as follows:
Sec. 84.21 Public financial disclosure report (SF 278).
* * * * *
(g) * * *
(2) * * *
(iv) If the Ethics Counselor agrees with the supervisor's
evaluation that no item violates, or appears to violate, applicable
laws or regulations, then:
(A) The Ethics Counselor shall annotate the report or attach an
endorsement stating that no conflicts of interest under applicable laws
or regulations exist, and forward it to the appropriate DoD Component
DAEO or designee; and
(B) If there are no financial interests in non-Federal entities
doing or seeking business with DoD reported on the SF 278, the Ethics
Counselor may issue a memorandum with the SF 278 to the appropriate DoD
Component DAEO or designee.
* * * * *
11. In Sec. 84.22, paragraph (a)(2) introductory text is
redesignated as paragraph (a)(2)(i) and paragraph (a)(2)(ii) is added
to read as follows:
Sec. 84.22 Confidential financial disclosure report (SF 450).
* * * * *
(a) * * *
(2) * * *
(ii) DoD employees who are not employed in contracting or
procurement and who have decision making responsibilities regarding
expenditures of less than $2,500 per purchase and less than $25,000
cumulatively per year are excluded from the requirement to file the SF
450. However, Agency Designees may require such DoD employees, in
individual cases, to file the SF 450. Such DoD employees remain subject
to conflict of interest statutes and regulations.
* * * * *
12. Section 84.23 is amended in paragraph (a) introductory text by
removing ``August 1989'' and paragraphs (d)(1) and (d)(2) are revised
to read as follows:
Sec. 84.23 Report on DoD and defense related employment (DD form
1787).
* * * * *
(d) * * *
(1) After the Ethics Counselor signs and dates the report, the
Ethics Counselor shall send the original to the entire DoD Component
DAEO or designee, who shall forward it, together with all other such
reports that were received during the previous calendar year, to SOCO
not later than March 15.
(2) The DoD Component DAEO or designee shall ensure that
appropriate data from each DD Form 1787 is [[Page 20032]] extracted and
sent, together with all other such data from other such reports that
were received during the previous calendar year for the entire DoD
Component, by March 15, to the Defense Manpower Data Center (DMDC)
where a consolidated report to Congress is compiled. DMDC will accept
data only on computer disk using any common word processing software or
ASCII.
* * * *
13. Section 84.33 is amended by removing paragraphs (a)(1)(ii) and
(a)(3) and removing the paragraph designation ``(i)'' in paragraph
(a)(1); by redesignating paragraphs (a)(1)(A) through (a)(1)(C) as
paragraphs (a)(1)(i) through (a)(1)(iii); in paragraph (a)(2) by
revising ``these two statutes'' to read ``this statute''; in newly
designated paragraph (a)(1)(ii) remove ``DoD'' and add in its place
``DoJ''; and by revising paragraph (a) introductory text to read as
follows:
Sec. 84.33 Restrictions on retired military members.
* * * * *
(a) 18 U.S.C. 281(a). This statute restricts the selling activities
of retired military officers. The provisions of this statute were
suspended by the Federal Acquisition Streamlining Act of 1994 through
December 31, 1996.
* * * * *
14. Section 84.36 (d)(1) through (d)(3) are revised to read as
follows:
Sec. 84.36 Reports of DoD and defense related employment (DD Form
1787).
* * * * *
(d) * * *
(1) After the Ethics Counselor signs and dates the report, the
Ethics Counselor shall send the original to the DoD Component DAEO or
designee, who shall forward it, together with all other such reports
that were received during the previous calendar year, to SOCO not later
than March 15.
(2) The DoD Component DAEO or designee shall ensure that
appropriate data from each DD Form 1787 is extracted and sent, together
with all other such data from other such reports that were received
during the previous calendar year for the entire DoD Component, by
March 15 to the Defense Manpower Data Center (DMDC) where a
consolidated report to Congress is compiled. DMDC will accept data only
on computer disk using any common word processing software or ASCII.
(3) If steps ensuring compliance with applicable law and
regulations are not taken by the date established, the Ethics Counselor
shall report the matter to the DoD Component DAEO and take whatever
other action might be required in accordance with subchapter J of this
part.
* * * * *
Sec. 84.38 [Amended]
15. Section 84.38 is amended in paragraph (c)(2) by revising
``shall'' to read ``may''.
Appendix A to Part 84 [Amended]
16. Appendix A to Part 84 is amended by removing paragraph (f) of
section 1.
Dated: April 18, 1995.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 95-9967 Filed 4-21-95; 8:45 am]
BILLING CODE 5000-04-M