95-9967. Standards of Conduct and Joint Ethics Regulation  

  • [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
    
    

Document Information

Effective Date:
11/2/1994
Published:
04/24/1995
Department:
Defense Department
Entry Type:
Rule
Action:
Final rule and request for comments.
Document Number:
95-9967
Dates:
These changes are effective November 2, 1994. Comments must be received no later than June 23, 1995.
Pages:
20029-20032 (4 pages)
Docket Numbers:
DoD Directive 5500.7 and DoD 5500.7-R, 0790-AG12, and 0790-AF83
PDF File:
95-9967.pdf
CFR: (15)
32 CFR 84.9(k)(1)
32 CFR 83.1
32 CFR 84.4
32 CFR 84.7
32 CFR 84.9
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