Political Activity: Federal Employees Residing in Designated Localities

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 733

RIN 3206-AF78

Political Activity: Federal Employees Residing in Designated

Localities

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The Office of Personnel Management (OPM) is proposing changes

to rules concerning the political activities of Federal employees who

reside in localities designated by OPM. The proposed rule is limited in

scope to matters concerning exemptions for employees residing in

designated localities and to the political activities that are

associated with the local elections for partisan political office in

these localities.

DATES: Written comments must be received on or before August 25, 1997.

ADDRESSES: Send written comments to Lorraine Lewis, General Counsel,

Office of Personnel Management, Room 7355, 1900 E Street, NW,

Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: Jo-Ann Chabot, (202) 606-1700.

SUPPLEMENTARY INFORMATION: On October 6, 1993, President Clinton signed

the Hatch Act Reform Amendments of 1993, Public Law 103-94. The

Amendments specifically authorize OPM to issue regulations on the

political activities of Federal employees regarding matters described

in 5 U.S.C. 7325, as amended, concerning Federal employees'

participation in local elections of the localities in which they

reside.

On February 4, 1994, OPM published an interim regulation on the

political activities of Federal employees residing in specified

localities designated by OPM. 59 FR 5313. OPM received comments from

three individuals; a Federal employee labor organization; six Federal

agencies; and two local governments. In addition, Congress recently

enacted an amendment to the Reform Amendments authorizing OPM to permit

employees in specified sensitive agencies and positions to participate

in the local elections of the designated localities in which they

reside. OPM also has determined that the Federally employed residents

of Spotsylvania County, Virginia, as well as the Federally employed

residents of St. Mary's County, Maryland, qualify for a partial

exemption from the prohibitions of 5 U.S.C. 7323(a) (2) and (3).

Finally, in connection with its interim regulation, OPM received two

comments which suggested that the partial exemption granted by the

Civil Service Commission to employees residing in the District of

Columbia is invalid. OPM is seeking further comments on this matter.

The OPM interim regulation on the political activities of Federal

employees residing in designated localities will remain in effect

during this notice and comment period and until the final regulation

for part 733 takes effect. The OPM regulation on the political

activities of Federal employees appears at 5 CFR part 734 (1996) as

modified by the amendments appearing at 61 FR 35088-35102 (July 5,

1996).

Definitions

Section 733.101 of the proposed regulation defines the terms that

apply to part 733. OPM received a comment from one Federal agency

concerning the definitions in the interim regulation and suggesting

that OPM should define the term solicit. OPM agrees with this

suggestion in view of the activities that are permitted and prohibited

under Sec. 733.103, and proposes to add a definition of solicit to

Sec. 733.101. OPM also proposes to add the definitions of related

terms, such as accept, person, and receive, to Sec. 733.101 for the

same reasons, and to add the definition of subordinate to Sec. 733.101

in conjunction with provisions concerning uncompensated volunteer

services that OPM proposes to add to part 733. OPM notes that the

definitions of accept and receive cover only the acts of accepting or

receiving something from a person officially on behalf of a candidate,

campaign, a political party or a partisan political group. Ministerial

activities which precede or follow the official acceptance and receipt,

such as handling, disbursing, or accounting for contributions are not

covered under the definitions of accept and receive.

OPM further proposes to add the definitions of candidate, campaign,

election, on duty, partisan, partisan political group, political

activity, political management, political party, political purpose,

room or building occupied in the discharge of official duties by an

individual employed or holding office in the Government of the United

States or any agency thereof, and uniformed service to Sec. 773.101

because they appear as descriptive terms in part 733. Finally, the

existing definition of political contribution does not reflect that the

Reform Amendments allow Federal employees to solicit, accept, receive,

and direct uncompensated volunteer services from certain individuals

during the course of a campaign. Therefore, OPM proposes to revise the

definition of political contribution specifically to exclude such

services. The definitions of employee and partisan political office

have not been changed from the definition of these terms in the interim

regulation. All of the definitions in Sec. 733.101 of the proposed

regulation are identical to the definitions of the same terms appearing

in part 734 of this title.

Exclusion From Coverage

The interim regulation excludes several categories of employees

from coverage under part 733. The exclusionary provision in the interim

regulation currently applies to employees in the sensitive agencies and

positions that are described in 5 U.S.C. 7323(b)(2) and to employees of

the Criminal Division of the Department of Justice as specified in 5

U.S.C. 7323(b)(3). Four Federal agencies submitted comments concerning

the exclusionary provision in the interim regulation. These agencies

stated that employees who reside in designated localities should not be

excluded from participation in local partisan elections as independent

candidates, or on behalf of independent candidates, because they

previously had been permitted to participate in these activities under

the more restrictive provisions of the Hatch Act.

On January 6, 1996, Congress amended the Reform Amendments by

adding a new provision which

[[Page 34018]]

authorizes OPM to permit employees who are described in 5 U.S.C.

7323(b)(2), and who reside in the designated localities, to participate

in the local partisan elections of these localities. Section 308 of

Pub. L. 104-93, 109 Stat. 961, 966. In view of the amendment to the

Reform Amendments and the comments that OPM received on this issue, OPM

finds that employees in the agencies and positions specified in 5

U.S.C. 7323(b)(2) who reside in designated localities may be permitted

to participate in the local partisan elections of those localities.

Therefore, OPM proposes to permit these employees to participate in

such local elections as independent candidates and in support of, or

opposition to, independent candidates. OPM also proposes to remove

these employees from the exclusionary provision which, for purposes of

clarity, appears in Sec. 733.102 of the proposed regulation.

This amendment to the Reform Amendments, however, does not mention

the employees of the Criminal Division of the Department of Justice who

are described in 5 U.S.C. 7323(b)(3). Moreover, the legislative history

of the added provision does not reflect that Congress intended to

extend the coverage of the amendment to these employees. Therefore, OPM

proposes that employees of the Criminal Division of the Department of

Justice will continue to be excluded from coverage under part 733,

except for employees in the Criminal Division who are appointed by the

President, by and with the advice and consent of the Senate. This

tracks the exception described in the Reform Amendments, at 5 U.S.C.

7323(b)(3), for such Presidential appointees in the Criminal Division

at the Department of Justice.

Permitted and Prohibited Political Activities--Elections for Local

Public Office in Designated Localities

Candidacy for Local Partisan Political Office

The interim regulation currently permits employees to run as

candidates in elections for local partisan political office in the

municipality or subdivision in which they reside, but requires such

employees to run as independent candidates. A Federal employee labor

organization suggested that employees who reside in designated

localities should not be required to run as independent candidates for

election to local partisan political offices and should, instead, be

able to run for local public office as the candidates of partisan

political parties. The labor organization stated its view that, under 5

U.S.C. 7325, employees who reside in designated localities have ``the

right to run for local partisan political office and to solicit

political contributions in support of these campaigns.'' It further

stated that section 7325 specifically provides that such employees may

participate actively in local political management and political

campaigns ``without regard to the prohibitions in paragraphs (2) and

(3) of Section 7232(a),'' which concern soliciting, accepting and

receiving political contributions, and running for election to partisan

political office.

The labor organization noted that OPM relied on section 10 of the

Reform Amendments (the Sense of the Senate) in requiring employees to

run as independent candidates in local elections for partisan political

office and in prohibiting employees from soliciting political

contributions in these local elections. It noted that section 10 of the

Reform Amendments states the Sense of the Senate that Federal employees

should not be authorized to solicit political contributions, or to run

for the nomination or as a candidate for local partisan political

office, except as expressly provided under current law. The labor

organization stated that the legislative history of the Reform

Amendments demonstrates that section 10 was added to the Reform

Amendments to express disagreement with the House version of the Hatch

Act reform bill, which would have permitted all Federal employees to

run for local partisan political office and to solicit political

contributions from the general public. Accordingly, the labor

organization stated that section 10 was not intended to restrict the

activities of Federal employees in specific communities, but was aimed

solely at the rights granted by the House bill to Federal employees in

general.

OPM has not adopted this suggestion. The legislative history of the

Reform Amendments is at best inconclusive regarding the purpose behind

including section 10 in the Reform Amendments. Moreover, the law

itself, at 5 U.S.C. 7325, does not give to the Federally employed

residents of designated localities the ``right'' to run for local

partisan political office as the candidates of partisan political

parties. Section 7325 provides that OPM ``may prescribe regulations

permitting employees, without regard to the prohibitions in [5 U.S.C.

7327(a)(2) and (3)], to take an active part in political management and

political campaigns involving the municipality or other political

subdivision in which they reside, to the extent the Office considers it

to be in their domestic interest * * *'' when the statutory conditions

specified in section 7325 are fulfilled.

Independent candidates in local partisan elections clearly are

candidates for ``partisan political office'' within the meaning of the

Reform Amendments, which define that term as ``any office for which any

candidate is nominated or elected as representing a party any of whose

candidates for Presidential elector received votes in the last

(Presidential election).'' Thus, under the Reform Amendments, an

independent candidate runs for partisan political office when he or she

opposes the candidates of political parties. It is clear from the

language of the Reform Amendments, particularly the Sense of the Senate

(section 10), as well as from the legislative history of the Reform

Amendments that, in permitting employees to participate in a much

broader range of political activities, Congress was especially

concerned about the possibility that Federal employees would become

candidates for partisan political office or would solicit other Federal

employees as well as the general public for political contributions.

The legislative history of the Reform Amendments shows that

Congress was familiar with the Hatch Act provisions on the political

activity of Federal employees in designated localities and the OPM

regulation interpreting these provisions, and intended to preserve the

provisions on candidacy for local partisan political office and

soliciting political contributions in enacting the Reform Amendments.

S. Rep. No. 103-57, 103d Cong., 1st Sess. 2, 29, 37 (1993); 138 Cong.

Rec. S8609 (daily ed. July 13, 1993) (Remarks of Senator Roth); 138

Cong. Rec. S8613 (daily ed. July 13, 1993 (Remarks of Senator Glenn);

138 Cong. Rec. S8765 (daily ed. July 15, 1993) (Remarks of Senator

Glenn). In proposing to amend the House bill by removing all of its

provisions and adopting the provisions of the Senate bill in toto, and

in explaining the provisions of the Senate bill, Representative Clay,

the leading advocate of Hatch Act Reform in the House of

Representatives, noted that: ``The Senate amendment also retains

provisions of current law permitting political activity by employees in

certain communities pursuant to regulations issued by [OPM].'' 138

Cong. Rec. H6817 (daily ed. Sept. 21, 1993). The Hatch Act, like the

Reform Amendments, did not specify that employees must run as

independent candidates in these elections. However, regulations

promulgated under the Hatch Act by the United States Civil Service

Commission and later by OPM

[[Page 34019]]

required independent candidacies in these local elections. Thus, the

legislative history of the Reform Amendments shows that the Senate bill

(which became the Reform Amendments) did not change existing provisions

requiring Federal employees to run as independent candidates for

partisan political office in the local elections of the designated

localities. Accordingly, OPM proposes to retain without change the

current regulatory provisions that permit employees who reside in

designated localities to run for local partisan political office but

only as independent candidates.

Soliciting Political Contributions

The interim regulation prohibits Federal employees from soliciting

political contributions in connection with local elections for partisan

political office. The same Federal employee labor organization also

noted that employees in designated localities should be permitted to

engage in this activity because they were permitted to do so prior to

the Reform Amendments. Citing In the Matter of Andrew J. Panholzer, 3

P.A.R. 88, 91 (1971), a Federal agency noted the legal precedent under

the Hatch Act that Federal employees residing in partially exempted

localities were free to participate in campaign activities on behalf of

independent candidates, including soliciting political contributions

from non-government employees.

In Panholzer, the Civil Service Commission held that employees

residing in a designated locality could participate actively in

political campaigns on behalf of independent candidates for local

public office but could not solicit political contributions from other

Federal employees. Because employees in designated localities

previously were permitted to solicit political contributions in local

elections on behalf of independent candidates for partisan political

office, OPM proposes to revise the interim regulation to permit such

solicitation as, or on behalf of, independent candidates. Federal

employees would, however, be prohibited from knowingly soliciting

political contributions from other Federal employees. OPM notes that,

notwithstanding this prohibition, employees who are not employed in the

sensitive agencies and positions described in the Reform Amendments at

5 U.S.C. 7323(b(2)(B) and OPM's regulation at section 733.105(a), and

who are members of a Federal labor or Federal employee organization as

defined in 5 CFR 734.101, still may solicit political contributions in

accordance with the conditions specified for such solicitation in the

Reform Amendments at 5 U.S.C. 7323(a)(2) and OPM's regulation at 5 CFR

734.208(b).

Other Political Activities

The interim regulation currently permits employees residing in

designated localities to accept and receive political contributions on

behalf of candidates for local partisan political office who represent

political parties. Except for employees in the agencies and positions

described in Sec. 733.105(a), employees covered by Part 733 still would

be permitted to accept and receive political contributions on behalf of

such candidates for local office. OPM also proposes to add provisions

about soliciting, accepting, and receiving uncompensated volunteer

services to part 733 because such services play such an important part

in election campaigns for local partisan political office.

Employees Who Reside in Designated Localities and Are Not Employed in

the Agencies and Positions Described in Sec. 733.105(a)

Sections 733.103 and 733.104 describe the political activities that

are permitted to employees who reside in the designated localities and

who are not employed in the agencies and positions described in

Sec. 733.105(a). Employees covered by Secs. 733.103 and 733.104 would

be permitted to run for election to partisan political office in local

elections, but only as independent candidates. They would be permitted

to solicit political contributions but only as, or on behalf of,

independent candidates for election to local partisan political office.

These employees, however, would be prohibited from knowingly soliciting

political contributions from other Federal employees, except as

permitted under 5 U.S.C. 7323(a)(2) (A)-(C).

Employees subject to Secs. 733.103 and 733.104 would be permitted

to accept or receive political contributions as, or on behalf of,

independent candidates, as well as on behalf of candidates for local

partisan political office who represent a political party. Although

employees would be permitted to accept or receive political

contributions from other Federal employees, they would be prohibited

from accepting or receiving such contributions from a subordinate

employee. Employees would be permitted to solicit, accept, or receive

uncompensated volunteer services as, or on behalf of independent

candidates, as well as on behalf of candidates for local partisan

political office who represent a political party. Although employees

would be permitted to solicit, accept, or receive uncompensated

volunteer services from other Federal employees, they would be

prohibited from soliciting, accepting, or receiving such services from

a subordinate employee. Finally, employees would be prohibited from

political participation while they are on duty, on Federal premises, in

uniform, or while using a Government-owned or leased vehicle.

Employees Who Reside in Designated Localities and Are Employed in the

Agencies and Positions Described in Sec. 733.105(a)

Sections 733.105 and 733.106 describe the political activities that

are permitted to employees who reside in the designated localities and

who are employed in the agencies and positions described in

Sec. 733.105(a). Employees who are covered by Secs. 733.105 and 733.106

would be permitted to run for election to partisan political office in

local elections but only as independent candidates. These employees

would be permitted to solicit political contributions but only as, or

on behalf of, independent candidates for election to local partisan

political office. However, they would be prohibited from knowingly

soliciting political contributions from other Federal employees.

Employees covered under Secs. 733.105 and 733.106 would be

permitted to accept or receive political contributions only as, or on

behalf of, independent candidates. They would be prohibited from

accepting or receiving such contributions on behalf of a candidate for

local partisan political office who represents a political party.

Although employees would be permitted to accept or receive political

contributions from other Federal employees, they would be prohibited

from accepting or receiving such contributions from a subordinate

employee. They also would be prohibited from political participation

while they are on duty, on Federal premises, in uniform, or while using

a Government-owned or leased vehicle.

Employees covered by Secs. 733.105 and 733.106 would be permitted

to solicit, accept, or receive uncompensated volunteer services only

as, or on behalf of, independent candidates. They would be prohibited

from soliciting, accepting, or receiving uncompensated volunteer

services on behalf of a candidate for local partisan political office

who represents a political party. Although employees would be permitted

to solicit, accept, or receive uncompensated volunteer services from

other Federal employees, they would be prohibited from soliciting,

accepting, or

[[Page 34020]]

receiving such services from a subordinate employee.

Finally, employees who are subject to Secs. 733.105 and 733.106

would be permitted to participate actively in other activities

associated with elections for local partisan political office, such as

stuffing envelopes, making telephone calls, driving voters to the

polls, directing a group of uncompensated volunteers, or managing the

campaign of an independent candidate for local partisan political

office. However, their participation in such activities would be

limited to participation as, or on behalf of, independent candidates

for local partisan political office. Employees would be prohibited from

such participation on behalf of a candidate for local partisan

political office who represents a political party.

Designated Localities

Section 7323(a) (2) and (3) of title 5, United States Code,

prohibits Federal employees from becoming candidates for partisan

political office and from soliciting, accepting, or receiving political

contributions. However, 5 U.S.C. 7325 authorizes OPM to prescribe

regulations permitting Federal employees in certain communities to

participate in local partisan elections, without regard to the

prohibitions stated in 5 U.S.C. 7323(a) (2) and (3), if the

requirements stated in section 7325 are fulfilled. The first

requirement is that the community or political subdivision must be

located in Maryland or Virginia and in the immediate vicinity of the

District of Columbia. Alternatively, the majority of the community's

registered voters must be employed by the United States Government. The

second requirement is that OPM must determine that it is in the

domestic interest of the employees to permit that political

participation because of special or unusual circumstances existing in

the municipality or political subdivision.

Section 733.105 of the proposed regulation reflects these statutory

requirements. Under part 733, the exemption from the prohibitions

stated in 5 U.S.C. 7323(a) (2) and (3) would be a partial exemption

because employees would be required to run as independent candidates

for local partisan political office, and they would be permitted to

participate in other political activities connected with elections for

local public office as specified in part 733. Section 733.105 also

includes a list of designated localities whose residents have been

granted a partial exemption by OPM.

Three Federal agencies, two local governments, and one individual

submitted comments concerning the regulatory list of designated

localities in the interim regulation for part 733. In addition, two

individuals requested that OPM grant a partial exemption to the

Federally employed residents of Spotsylvania County, Virginia, and one

individual requested that OPM grant a partial exemption to the

Federally employed residents of St. Mary's County, Maryland.

Spotsylvania County, Virginia and St. Mary's County, Maryland

OPM proposes to grant to the Federal employees residing in

Spotsylvania County, Virginia, and in St. Mary's County, Maryland, a

partial exemption from the political activity restrictions in 5 U.S.C.

7323(a) (2) and (3), and to add Spotsylvania County and St. Mary's

County to OPM's regulatory list of designated localities in 5 CFR

733.104. OPM has determined that Spotsylvania County and St. Mary's

County, respectively, meet the criteria described in 5 U.S.C. 7325 and

5 CFR 733.104 for a partial exemption to issue.

In response to separate applications from a Federal employee and a

retired Federal employee who reside in Spotsylvania County, Virginia,

as well as an application from a Federal employee who resides in St.

Mary's County, Maryland, OPM proposes to designate those counties as

localities in which Federal employees may run as independent candidates

for local partisan political office and may participate in other

political activities in connection with elections for local public

office as specified in Part 733. However, an employee's candidacy for,

and service in, a local partisan political office must not result in

the neglect of, or interference with, the employee's performance of the

duties of his or her Federal position or create a conflict or apparent

conflict of interest.

This proposal reflects OPM's determination that special or unusual

circumstances exist so that it is in the domestic interest of Federal

employees residing in Spotsylvania County, Virginia, to participate in

these political activities. OPM's determination is based upon

documentary material provided by the applicants as well as interviews

of both applicants and the County Administrator. Principal factors in

OPM's determination include the proximity of Spotsylvania County to the

District of Columbia; the statistically significant proportion of

county residents who are Federal employees; the rapid growth of the

county within the past few years; and significant public issues

associated with this rapid growth. A public notice regarding this

proposal to include Spotsylvania County in the OPM list of designated

localities also will be published in a local newspaper serving that

county.

This proposal also reflects OPM's further determination that

special or unusual circumstances exist so that it is in the domestic

interest of Federal employees residing in St. Mary's County, Maryland,

to participate in these political activities. OPM's determination is

based upon documentary material provided by the applicant as well as

interviews of the applicant and the President of the Board of County

Commissioners. Principal factors in OPM's determination include the

proximity of St. Mary's County to the District of Columbia; the rapidly

increasing population of the county; significant public issues

associated with the increase in population; the impending transfer of

naval functions to naval facilities in that county and associated

increases in Federal employees residing in the county; and the

statistically significant proportion of county residents who are

Federal employees. A public notice regarding this proposal to include

St. Mary's County in the OPM list of designated localities also will be

published in a local newspaper serving that county.

If this proposal is adopted as a final rule, OPM will add

Spotsylvania County to the list of designated Virginia municipalities

and political subdivisions, and will add St. Mary's County to the list

of designated Maryland municipalities and political subdivisions, in

which Federal Government employees may run as independent candidates

for local partisan political office and may solicit, accept, or receive

political contributions as, or on behalf of, independent candidates in

connection with local elections. The addition of Spotsylvania County

will be listed among the designated Virginia municipalities and

political subdivisions after Prince William County and before Stafford

County. The addition of St. Mary's County to the designated Maryland

municipalities and political subdivisions will be listed after Somerset

and before Takoma Park.

The District of Columbia

The District of Columbia currently is included in the OPM

regulatory list of designated localities. The District of Columbia was

added to this list on July 5, 1977, by the United States Civil Service

Commission. In separate comments, two Federal agencies questioned

whether the District of Columbia should continue to be listed as a

partially exempt municipality in view of the unpublished memorandum

[[Page 34021]]

opinion of the United States District Court for the District of

Columbia in Ward Three Democratic Committee versus United States, No.

78-853 (D.D.C. Aug. 29, 1980). OPM recognizes that, when the statutory

exemption requirements were enacted in 1940, Congress did not foresee a

need for an exemption for the District of Columbia because the District

held no local elections at the time and was, instead, governed by three

Commissioners appointed by the President of the United States.

One commentator provided a history of the district court decision,

noting that, on May 30, 1974, the Civil Service Commission added the

District of Columbia to the list of exempted localities at 5 CFR

733.124, retroactively effective May 16, 1974. 39 FR 18761 (1974). In

Joseph versus United States Civil Service Commission, 554 F. 2d 1140

(1977), the United States Court of Appeals for the District of Columbia

declared the exemption for the District of Columbia invalid because it

was not published after a notice and comment period, as required by the

Administrative Procedure Act. The appeals court held that, under the

Hatch Act, the District of Columbia could not qualify under the first

alternative for an exemption to issue. Id. at 1154-1155. The appeals

court stated in this regard that:

Although there can be no dispute that it is ``in the immediate

vicinity of the District of Columbia,'' it is equally certain that

it is not in the states of Maryland or Virginia. The legislative

history of this first alternative clearly indicates that it was

proposed to restrict the Civil Service Commission's exemption

authority to areas adjacent to the District. (Citation omitted.)

Admittedly the failure to include areas within the District may well

have been due to the fact that there were no elective positions

within the District government in 1940 when the Commission was given

its exemption authority. (Footnote omitted.) The literal language of

the first alternative in subsection 7327(b)(1), however, clearly

does not include the District, and although a court should interpret

the meaning of statutory language in light of the intent of its

drafters, we cannot rewrite the statute to compensate for unforeseen

circumstances.

Id. The appeals court also stated that, if the Civil Service Commission

republished the exemption, it should furnish statistical evidence that

a majority of District of Columbia voters were employed by the United

States Government or the District of Columbia Government. Id. at 1152-

1157. In order to comply with the decision in Joseph, the Civil Service

Commission subsequently proposed to add the District of Columbia to the

list of exempted localities on May 6, 1977, 42 FR 23160 (1977), and the

District was then added to the list of exempted localities, effective

July 5, 1977. 42 FR 34308.

In a second suit challenging the validity of section 733.124, the

appeals court remanded the case to the district court to gather

statistical evidence to determine whether the majority of registered

voters in the District of Columbia were employed by the United States

or the District of Columbia governments. Ward Three Democratic

Committee versus United States, 609 F. 2d 10 (D.C. Cir. 1979). On

remand, the district court found that, based upon the statistical

evidence submitted by the parties, less than 50 percent of registered

voters in the District of Columbia were employed by the United States

Government or the District of Columbia Government. Thus, the district

court held that Sec. 733.124(b), the regulation which provided for

partial exemptions at that time, was ``not applicable to the District

of Columbia and shall not be applied thereto.'' Ward Three Democratic

Committee versus United States, No. 78-853 (D.D.C. Aug. 29, 1980). OPM

notes that this judicial decision was based upon requirements stated in

the Hatch Act for an exemption to issue, but the same requirements also

appear in the Reform Amendments. OPM is requesting further comments

from the public, in particular from the Federal, Postal Service, and

District of Columbia government employees who are registered voters in

the District of Columbia. In the interim, OPM will also pursue a

legislative solution to put the District of Columbia on the same

footing as the surrounding Virginia and Maryland localities.

Other Designated Localities

The interim regulation includes ``Martin's Additions 1, 2, 3, and 4

to Chevy Chase'' in its list of designated Maryland municipalities and

subdivisions. OPM proposes to remove ``Martin's Additions 1, 2, 3, and

4 to Chevy Chase'' from, and add ``Village of Martin's Additions'' to,

the list of designated localities appearing in Sec. 733.104 of the

proposed regulation. OPM based this action on a comment received from a

former local official of Martin's Additions, who advises that

``Martin's Additions 1, 2, 3, and 4 to Chevy Chase'' became an

incorporated municipality in 1985. He also advises that the name of the

subdivision was changed officially to the ``Village of Martin's

Additions'' on its incorporation.

The interim regulation also includes ``Chevy Chase, sections 1 and

2'', in its list of designated localities. OPM has removed ``Chevy

Chase, sections 1 and 2,'' from the list of designated localities in

Sec. 733.104 of the proposed regulation and has added the ``Town of

Chevy Chase Village'' to that list. OPM has taken this action on the

basis of a comment received from an official of the Town of Chevy Chase

Village, who advised that sections 1 and 2 of Chevy Chase are included

within the Town of Chevy Chase Village.

The interim regulation further includes the ``Town of Fairfax'' in

its list of designated Virginia municipalities and subdivisions. OPM

has removed the ``Town of Fairfax'' from the list of designated

localities in Sec. 733.104 of the proposed regulation and has added the

``City of Fairfax'' to that list. OPM has taken this action on the

basis of information received from the Office of the City Attorney for

the City of Fairfax regarding a Transition Order issued on June 30,

1961, In the Matter of the Town of Fairfax, Virginia, Applying to

Become a City of The Second Class, Circuit Court of the County of

Fairfax, Law No. 10031, and amendment of the Town Charter by the

Virginia General Assembly, Acts of Assembly 1962, Ch. 468.

In connection with the regulatory list of designated localities, an

individual commented generally that some localities on the list may no

longer fulfill the statutory requirements for designation as an exempt

locality and should therefore be removed from the list. Except in the

possible case of the District of Columbia, OPM does not have any

evidence to suggest that these localities may no longer qualify for a

partial exemption.

E.O. 12866, Regulatory Review

This rule 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 in 5 CFR Part 733

Political activities (Government employees).

Office of Personnel Management.

James B. King,

Director.

Accordingly, the Office of Personnel Management proposes to revise

5 CFR part 733 as follows:

[[Page 34022]]

PART 733--POLITICAL ACTIVITY--FEDERAL EMPLOYEES RESIDING IN

DESIGNATED LOCALITIES

Sec.

733.101 Definitions.

733.102 Exclusion of employees in the Criminal Division of the

United States Department of Justice.

733.103 Permitted political activities--employees who reside in

designated localities.

733.104 Prohibited political activities--employees who reside in

designated localities.

733.105 Permitted political activities--employees who reside in

designated localities and are employed in certain agencies and

positions.

733.106 Prohibited political activities--employees who reside in

designated localities and are employed in certain agencies and

positions.

733.107 Designated localities.

Authority: 5 U.S.C. 7325; sec. 8 of Pub. L. 104-93, 109 Stat.

961, 966 (Jan. 6, 1996).

Sec. 733.101 Definitions.

In this part:

Accept means to come into possession of something from a person

officially on behalf of a candidate, a campaign, a political party, or

a partisan political group, but does not include ministerial activities

which precede or follow this official act.

Candidate means an individual who seeks nomination or election to

any elective office whether or not the person is elected. An individual

is deemed to be a candidate if the individual has received political

contributions or made expenditures or has consented to another person

receiving contributions or making expenditures with a view to bringing

about the individual's nomination or election.

Campaign means all acts done by a candidate and his or her

adherents to obtain a majority or plurality of the votes to be cast

toward a nomination or in an election.

Election includes a primary, special, runoff, or general election.

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;

(3) The government of the District of Columbia, other than the

Mayor or a member of the City Council or the Recorder of Deeds; or

(4) The United States Postal Service or the Postal Rate Commission.

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 or any agency or instrumentality of the District of Columbia

Government in an official capacity.

Partisan when used as an adjective means related to a political

party.

Partisan political group means any committee, club, or other

organization which is affiliated with a political party or candidate

for public office in a partisan election, or organized for a partisan

purpose, or which engages in partisan political activity.

Partisan political office means any office for which any candidate

is nominated or elected as representing a party any of whose candidates

for Presidential elector received votes in the last preceding election

at which Presidential electors were selected, but does not include any

office or position within a political party or affiliated organization.

Person means an individual; a State, local, or foreign government;

or a corporation and the subsidiaries it controls, company,

association, firm, partnership, society, joint stock company, or any

other organization or institution, including any officer, employee, or

agent of such person or entity.

Political activity means an activity directed toward the success or

failure of a political party, candidate for partisan political office,

or partisan political group.

Political contribution means any gift, subscription, loan, advance,

or deposit of money or anything of value, made for any political

purpose.

(1) A political contribution includes:

(i) Any contract, promise, or agreement, express or implied,

whether or not legally enforceable, to make a contribution for any

political purpose;

(ii) Any payment by any person, other than a candidate or a

political party or affiliated organization, of compensation for the

personal services of another person which are rendered to any candidate

or political party or affiliated organization without charge for any

political purpose; and

(iii) The provision of personal services, paid or unpaid, for any

political purpose.

(2) A political contribution does not include the value of services

provided without compensation by any individual who volunteers on

behalf of any candidate, campaign, political party, or partisan

political group.

Political management means the direction or supervision of a

partisan political group or campaign for partisan political office.

Political party means a national political party, a State political

party, or an affiliated organization.

Political purpose means an objective of promoting or opposing a

political party, candidate for partisan political office, or partisan

political group.

Receive means to come into possession of something from a person

officially on behalf of a candidate, a campaign, a political party, or

a partisan political group, but does not include ministerial activities

which precede or follow this official act.

Room or building occupied in the discharge of official duties by an

individual employed or holding office in the Government of the United

States or any agency thereof includes, but is not limited to:

(1) Any Federally owned space (including, but not limited to,

``public buildings'' as defined in 40 U.S.C. 612(1)) or Federally

leased space in which Federal employees perform official duties on a

regular basis;

(2) Public areas as defined in 40 U.S.C. 490(a)(17) and 41 CFR 101-

20.003 of buildings under the custody and control of the General

Services Administration.

(3) A room or building occupied in the discharge of official duties

by an individual employed or holding office in the Government of the

United States or any agency thereof does not include rooms in the White

House, or in the residence of the Vice President, which are part of the

Residence area or which are not regularly used solely in the discharge

of official duties.

Solicit means to request expressly of another person that he or she

contribute something to a candidate, a campaign, a political party, or

partisan political group.

Subordinate refers to the relationship between two employees when

one employee is under the supervisory authority, control or

administrative direction of the other employee.

Uniformed services means uniformed services as defined in 5 U.S.C.

2101(3).

Sec. 733.102 Exclusion of employees in the Criminal Division of the

United States Department of Justice.

Employees in the Criminal 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

[[Page 34023]]

from coverage under the provisions of this part.

Sec. 733.103 Permitted political activities--employees who reside in

designated localities.

(a) This section does not apply to employees in the agencies and

positions described in Sec. 733.105(a).

(b) Employees who reside in a municipality or political subdivision

designated by OPM under Sec. 733.107 may:

(1) Run as independent candidates for election to partisan

political office in elections for local office in the municipality or

political subdivision;

(2) Solicit, accept, or receive a political contribution as, or on

behalf of, an independent candidate for partisan political office in

elections for local office in the municipality or political

subdivision;

(3) Accept or receive a political contribution on behalf of an

individual who is a candidate for local partisan political office and

who represents a political party;

(4) Solicit, accept, or receive uncompensated volunteer services as

an independent candidate, or on behalf of an independent candidate, for

local partisan public office, in connection with the local elections of

the municipality or subdivision; and

(5) Solicit, accept, or receive uncompensated volunteer services on

behalf of an individual who is a candidate for local partisan political

office and who represents a political party.

Sec. 733.104 Prohibited political activities--employees who reside in

designated localities.

(a) This section does not apply to employees in the agencies and

positions described in Sec. 733.105(a).

(b) Employees who reside in a municipality or political subdivision

designated by OPM under Sec. 733.107 may not:

(1) Run as the representative of a political party for local

partisan political office;

(2) Solicit a political contribution on behalf of an individual who

is a candidate for local partisan political office and who represents a

political party;

(3) Knowingly solicit a political contribution from any Federal

employee, except as permitted under 5 U.S.C. 7323(a)(2) (A)-(C).

(4) Accept or receive a political contribution from a subordinate;

or

(5) Solicit, accept, or receive uncompensated volunteer services

from a subordinate for any political purpose.

(c) An employee covered under this section may not participate in

political activities:

(1) While he or she is on duty:

(2) While he or she is wearing a uniform, badge, or insignia that

identifies the employing agency or instrumentality or the position of

the employee;

(3) While he or she is in any room or building occupied in the

discharge of official duties by an individual employed or holding

office in the Government of the United States or any agency or

instrumentality thereof; or

(4) While using a Government-owned or leased vehicle or while using

a privately owned vehicle in the discharge of official duties.

(d) An employee described in 5 U.S.C. 7324(b)(2) may participate in

political activity otherwise prohibited by Sec. 733.104(c) if the costs

associated with that political activity are not paid for by money

derived from the Treasury of the United States.

(e) Candidacy for, and service in, a partisan political office

shall not result in neglect of, or interference with, the performance

of the duties of the employee or create a conflict, or apparent

conflict, of interest.

Sec. 733.105 Permitted political activities--employees who reside in

designated localities and are employed in certain agencies and

positions.

(a) This section applies to employees who reside in designated

localities and are employed in the following agencies or positions:

(1) Federal Election Commission;

(2) Federal Bureau of Investigation;

(3) Secret Service;

(4) Central Intelligence Agency;

(5) National Security Council;

(6) National Security Agency;

(7) Defense Intelligence Agency;

(8) Merit Systems Protection Board;

(9) United States Office of Special Counsel;

(10) Office of Criminal Investigation of the Internal Revenue

Service;

(11) Office of Investigative Programs of the United States Customs

Service;

(12) Office of Law Enforcement of the Bureau of Alcohol, Tobacco,

and Firearms;

(13) Central Imagery Office;

(14) Career appointees in the Senior Executive Service;

(15) Administrative Law Judges; and

(16) Contract appeals board members described in 5 U.S.C. 5372a.

(b) Employees who are covered under this section and who reside in

a municipality or political subdivision designated by OPM under

Sec. 733.107 may:

(1) Run as independent candidates for election to partisan

political office in elections for local office in the municipality or

political subdivision;

(2) Solicit, accept, or receive a political contribution as, or on

behalf of, an independent candidate for partisan political office in

elections for local office in the municipality or political

subdivision;

(3) Solicit, accept, or receive uncompensated volunteer services

as, or on behalf of, an independent candidate for partisan political

office in elections for local office in the municipality or

subdivision; and

(4) Take an active part in other political activities associated

with elections for local partisan political office and in managing the

campaigns of candidates for election to local partisan political office

in the municipality or political subdivision, but only as an

independent candidate or on behalf of, or in opposition to, an

independent candidate.

Sec. 733.106 Prohibited political activities--employees who reside in

designated localities and are employed in certain agencies and

positions.

(a) Employees who are employed in the agencies and positions

described in Sec. 733.105(a), and who reside in a municipality or

political subdivision designated by OPM under Sec. 733.107, may not:

(1) Run as the representative of a political party for local

partisan political office;

(2) Solicit, accept, or receive a political contribution on behalf

of an individual who is a candidate for local partisan political office

and who represents a political party;

(3) Knowingly solicit a political contribution from any Federal

employee;

(4) Accept or receive a political contribution from a subordinate;

(5) Solicit, accept, or receive uncompensated volunteer services on

behalf of an individual who is a candidate for local partisan political

office and who represents a political party;

(6) Solicit, accept, or receive uncompensated volunteer services

from a subordinate for any political purpose; or

(7) Take an active part in other political activities associated

with elections for local partisan political office, when such

participation occurs on behalf of a political party, partisan political

group, or a candidate for local partisan political office who

represents a political party.

[[Page 34024]]

(b) An employee covered under this section may not participate in

political activities:

(1) While he or she is on duty:

(2) While he or she is wearing a uniform, badge, or insignia that

identifies the employing agency or instrumentality or the position of

the employee;

(3) While he or she is in any room or building occupied in the

discharge of official duties by an individual employed or holding

office in the Government of the United States or any agency or

instrumentality thereof; or

(4) While using a Government-owned or leased vehicle or while using

a privately owned vehicle in the discharge of official duties.

(c) An employee described in 5 U.S.C. 7324(b)(2) may participate in

political activity otherwise prohibited by Sec. 733.104(b) if the costs

associated with that political activity are not paid for by money

derived from the Treasury of the United States.

(d) Candidacy for, and service in, a partisan political office

shall not result in neglect of, or interference with, the performance

of the duties of the employee or create a conflict, or apparent

conflict, of interest.

Sec. 733.107 Designated localities.

(a) OPM may designate a municipality or political subdivision in

Maryland or Virginia and in the immediate vicinity of the District of

Columbia, or a municipality in which the majority of voters are

employed by the Government of the United States, when OPM determines

that, because of special or unusual circumstances, it is in the

domestic interest of employees to participate in local elections.

(b) Information as to the documentation required to support a

request for designation is furnished by the General Counsel of OPM on

request.

(c) The following municipalities and political subdivisions have

been designated, effective on the day specified:

In Maryland

Annapolis (May 16, 1941).

Anne Arundel County (March 14, 1973).

Berwyn Heights (June 15, 1944).

Bethesda (Feb. 17, 1943).

Bladensburg (April 20, 1942).

Bowie (April 11, 1952).

Brentwood (Sept. 26, 1940).

Calvert County (June 18, 1992).

Capitol Heights (Nov. 12, 1940).

Cheverly (Dec. 18, 1940).

Chevy Chase, section 3 (Oct. 8, 1940).

Chevy Chase, section 4 (Oct. 2, 1940).

Chevy Chase View (Feb. 26, 1941).

Chevy Chase Village, Town of (March 4, 1941).

College Park (June 13, 1945).

Cottage City (Jan. 15, 1941).

District Heights (Nov. 2, 1940).

Edmonston (Oct. 24, 1940).

Fairmont Heights (Oct. 24, 1940).

Forest Heights (April 22, 1949).

Frederick County (May 31, 1991).

Garrett Park (Oct. 2, 1940).

Glenarden (May 21, 1941).

Glen Echo (Oct. 22, 1940).

Greenbelt (Oct. 4, 1940).

Howard County (April 25, 1974).

Hyattsville (Sept. 20, 1940).

Kensington (Nov. 8, 1940).

Landover Hills (May 5, 1945).

Martin's Additions, Village of (Feb. 13, 1941).

Montgomery County (April 30, 1964).

Morningside (May 19, 1949).

Mount Rainier (Nov. 22, 1940).

New Carrollton (July 7, 1981).

North Beach (Sept. 20, 1940).

North Brentwood (May 6, 1941).

North Chevy Chase (July 22, 1942).

Northwest Park (Feb. 17, 1943).

Prince Georges County (June 19, 1962).

Riverdale (Sept. 26, 1940).

Rockville (April 15, 1948).

Seat Pleasant (Aug. 31, 1942).

Somerset (Nov. 22, 1940).

St. Mary's County (date to be determined at a later date).

Takoma Park (Oct. 22, 1940).

University Park (Jan. 18, 1941).

Washington Grove (April 5, 1941).

In Virignia

Alexandria (April 15, 1941).

Arlington County (Sept. 9, 1940).

Clifton (July 14, 1941).

Fairfax, City of (Feb. 9, 1954).

Fairfax County (Nov. 10, 1949).

Falls Church (June 6, 1941).

Herndon (April 7, 1945).

Loudoun County (Oct. 1, 1971).

Manassas (Jan. 8, 1980).

Manassas Park (March 4, 1980).

Portsmouth (Feb. 27, 1958).

Prince William County (Feb. 14, 1967).

Spotsylvania County (date to be determined at a later date).

Stafford County (Nov. 2, 1979).

Vienna (March 18, 1946).

Other Municipalities

Anchorage, Alaska (Dec. 29, 1947).

Benicia, Calif. (Feb. 20, 1948).

Bremerton, Wash. (Feb. 27, 1946).

Centerville, Ga. (Sept. 16, 1971).

Crane, Ind. (Aug. 3, 1967).

District of Columbia (July 5, 1977).

Elmer City, Wash. (Oct. 28, 1947).

Huachuca City, Ariz. (April 9, 1959).

New Johnsonville, Tenn. (April 26, 1956).

Norris, Tenn. (May 6, 1959).

Port Orchard, Wash. (Feb. 27, 1946).

Sierra Vista, Ariz. (Oct. 5, 1955).

Warner Robins, Ga. (March 19, 1948).

[FR Doc. 97-16424 Filed 6-23-97; 8:45 am]

BILLING CODE 6325-01-P