Standards of Conduct and Joint Ethics Regulation

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