[Federal Register: September 27, 1996 (Volume 61, Number 189)] [Rules and Regulations] [Page 50689-50691] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr27se96-2] ======================================================================= ----------------------------------------------------------------------- OFFICE OF GOVERNMENT ETHICS 5 CFR Part 2635 RIN 3209-AA04 Standards of Ethical Conduct for Employees of the Executive Branch; Exception for Gifts From a Political Organization AGENCY: Office of Government Ethics (OGE). ACTION: Interim rule with request for comments. ----------------------------------------------------------------------- SUMMARY: The Office of Government Ethics is amending the Standards of Ethical Conduct for Employees of the Executive Branch to conform with the Hatch Act Reform Amendments of 1993. [[Page 50690]] These amendments will thus bring the concerned provisions of the Standards up-to-date. DATES: These interim rule amendments are effective September 27, 1996. Comments are invited and must be received on or before November 26, 1996. ADDRESSES: Send comments to the Office of Government Ethics, Suite 500, 1201 New York Avenue, NW., Washington, DC 20005-3917, Attention: Stuart D. Rick. FOR FURTHER INFORMATION CONTACT: Stuart D. Rick, Associate General Counsel, Office of Government Ethics; telephone: 202-208-8000; FAX: 202-208-8037; Internet E-mail address: oge@attmail.com (for E-mail messages, the subject line should include the following reference-- Standards Exception/Political Organization Gifts). SUPPLEMENTARY INFORMATION: I. Background On August 7, 1992, the Office of Government Ethics published the Standards of Ethical Conduct for Employees of the Executive Branch (the Standards) for codification at 5 CFR part 2635. See 57 FR 35006-35067, as corrected at 57 FR 48557, 57 FR 52583, and 60 FR 51667, with additional grace period extensions for certain existing provisions at 59 FR 4779-4780, 60 FR 6390-6391, and 60 FR 66857-66858. The Standards, which took effect on February 3, 1993, set uniform ethical conduct standards applicable to all executive branch personnel. Subpart B of the Standards, which contains regulations implementing the gift restrictions contained in 5 U.S.C. 7353 and section 101(d) of Executive Order 12674, as modified by E.O. 12731, includes an exception for benefits provided by certain sources in connection with political activities permitted by the Hatch Act. Subpart H of the Standards, which contains regulations relating to the outside activities of employees, includes a note explaining that fundraising permitted by the Hatch Act is not prohibited by the Standards, and includes a reference to the Hatch Act in a list of statutes and regulations applicable to outside activities. The Hatch Act, at 5 U.S.C. 7321 et seq., for many years governed the political activities of executive branch employees. Until recently, the Hatch Act provided that the only executive branch employees who were permitted to take an active part in political management or political campaigns were: an employee paid from the appropriation for the office of the President; the head or the assistant head of an Executive department or military department; and an employee appointed by the President, by and with the advice and consent of the Senate, who determines policies to be pursued by the United States in its relations with foreign powers or in the nationwide administration of Federal laws. Those exceptions to the Hatch Act's coverage were codified at 5 U.S.C. 7324(d). Under the Hatch Act Reform Amendments of 1993, Public Law 103-94, all executive branch employees, with the exception of employees in certain agencies and positions listed at 5 U.S.C. 7323(b) and members of the uniformed services, may take an active part in political management or political campaigns. However, no employee may knowingly solicit, accept, or receive a political contribution from any person except under limited circumstances. 5 U.S.C. 7323(a)(2). The Hatch Act Reform Amendments of 1993 went into effect on February 3, 1994. See also the regulations thereunder of the Office of Personnel Management, at 5 CFR 734.401 (as modified at 61 FR 35101) for a list of the agencies and positions in which employees are still subject to political activity restrictions. II. Analysis of the Regulations The following sections of 5 CFR part 2635 are being amended to conform with the Hatch Act Reform Amendments of 1993. The Office of Government Ethics has consulted with the Department of Justice and the Office of Personnel Management on these interim rule amendments. Section 2635.204(f) Section 2635.204 of the Standards sets forth exceptions to the gift prohibition in Sec. 2635.202(a), which provides that, in the absence of an exception, an employee shall not directly or indirectly solicit or accept a gift from a ``prohibited source,'' as that term is defined at 5 CFR 2635.203(d), or a gift that is ``[g]iven because of the employee's official position,'' as that term is defined at 5 CFR 2635.203(e). One of several exceptions set forth in Sec. 2635.204 is the exception at Sec. 2635.204(f), by which ``[a]n employee who is exempt under 5 U.S.C. 7324(d) from the Hatch Act prohibitions against active participation in political management or political campaigns may accept meals, lodgings, transportation and other benefits, including free attendance at events, when provided, in connection with such active participation, by a political organization described in 26 U.S.C. 527(e).'' In order to reflect the redefined class of executive branch employees who, pursuant to the Hatch Act Reform Amendments of 1993, may take an active part in political management or political campaigns, and to permit those employees to accept from a political organization meals, lodgings, transportation and other benefits, including free attendance at events, when provided in connection with their active participation in political management or political campaigns, the reference in Sec. 2635.204(f) to prior 5 U.S.C. 7324(d), now superseded, is being replaced with a reference to current 5 U.S.C. 7323 as revised. In addition, the exception and the example following it are being reworded to reflect the thrust of the Hatch Act, as amended, to permit political activities rather than prohibit them. Section 2635.801(d)(7) Section 2635.801(d) of the Standards lists the Hatch Act among other statutes and regulations applicable to employees' outside employment or other outside activities. The brief reference to the Hatch Act in this section, at 5 CFR 2635.801(d)(7), is being replaced with a reference to the Hatch Act Reform Amendments. Section 2635.808(a)(2) Section 2635.808 of the Standards describes the circumstances under which an employee may engage in fundraising. For purposes of Sec. 2635.808, ``fundraising'' means ``the raising of funds for a nonprofit organization, other than a political organization as defined in 26 U.S.C. 527(e) * * *.'' 5 CFR 2635.808(a)(1). Accordingly, a note following Sec. 2635.808(a)(2) explains that Sec. 2635.808 does not prohibit fundraising for political parties, but that such fundraising may be prohibited by other authorities, including the Hatch Act for employees ``other than those exempt under 5 U.S.C. 7324(d),'' and the restrictions on political solicitations in title 18 of the U.S. Code. The note is being reworded to refer employees to the restrictions in the Hatch Act Reform Amendments, at 5 U.S.C. 7323(a)(2), on the solicitation, acceptance, or receipt of political contributions. In addition, the note is being reworded for clarity and to reflect changes made by the Hatch Act Reform Amendments to the restrictions on political solicitations in title 18 of the U.S. Code. III. Matters of Regulatory Procedure Administrative Procedure Act Pursuant to 5 U.S.C. 553 (b) and (d), as Director of the Office of Government [[Page 50691]] Ethics, I have found that good cause exists for waiving the general requirements of notice of proposed rulemaking and 30-day delayed effective date for these interim rule Standards amendments. These requirements are being waived because it is in the public interest that these interim rule amendments, reflecting the broader class of executive branch employees who can engage in certain permitted political activities under the Hatch Act Reform Amendments be effective as soon as possible. Any comments received will be considered before OGE eventually adopts this interim final provision in a final rule. Executive Order 12866 In promulgating these interim rule amendments, the Office of Government Ethics has adhered to the regulatory philosophy and the applicable principles of regulation set forth in section 1 of Executive Order 12866, Regulatory Review and Planning. These amendments have also been reviewed by the Office of Management and Budget under that Executive order. Regulatory Flexibility Act As Director of the Office of Government Ethics, I certify under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this amendatory rule will not have a significant economic impact on a substantial number of small entities because it primarily affects Federal executive branch employees. Paperwork Reduction Act The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply because these amendments do not contain information collection requirements that require the approval of the Office of Management and Budget. List of Subjects in 5 CFR Part 2635 Conflict of interests, Executive branch standards of conduct, Government employees, Political activities (Government employees). Approved: July 26, 1996. Stephen D. Potts, Director, Office of Government Ethics. Accordingly, for the reasons set forth in the preamble, the Office of Government Ethics is amending part 2635 of subchapter B of chapter XVI of title 5 of the Code of Federal Regulations as follows: PART 2635--[AMENDED] 1. The authority citation for part 2635 continues to read as follows: Authority: 5 U.S.C. 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. Subpart B--Gifts From Outside Sources 2. Section 2635.204 is amended by revising paragraph (f) and the example following it, to read as follows: Sec. 2635.204 Exceptions. * * * * * (f) Gifts in connection with political activities permitted by the Hatch Act Reform Amendments. An employee who, in accordance with the Hatch Act Reform Amendments of 1993, at 5 U.S.C. 7323, may take an active part in political management or in political campaigns, may accept meals, lodgings, transportation and other benefits, including free attendance at events, when provided, in connection with such active participation, by a political organization described in 26 U.S.C. 527(e). Any other employee, such as a security officer, whose official duties require him to accompany an employee to a political event may accept meals, free attendance and entertainment provided at the event by such an organization. Example 1: The Secretary of the Department of Health and Human Services may accept an airline ticket and hotel accommodations furnished by the campaign committee of a candidate for the United States Senate in order to give a speech in support of the candidate. * * * * * Subpart H--Outside Activities 3. Section 2635.801 is amended by revising paragraph (d)(7) to read as follows: Sec. 2635.801 Overview. * * * * * (d) * * * (7) The Hatch Act Reform Amendments, 5 U.S.C. 7321 through 7326, which govern the political activities of executive branch employees; * * * * * 4. Section 2635.808 is amended by revising the note following paragraph (a)(2) to read as follows: Sec. 2635.808 Fundraising activities. * * * * * (a) * * * (2) * * * Note: This section does not prohibit fundraising for a political party, candidate for partisan political office, or partisan political group. However, there are statutory restrictions that apply to political fundraising. For example, under the Hatch Act Reform Amendments of 1993, at 5 U.S.C. 7323(a), employees may not knowingly solicit, accept, or receive a political contribution from any person, except under limited circumstances. In addition, employees are prohibited by 18 U.S.C. 607 from soliciting or receiving political contributions in Federal offices, and, except as permitted by the Hatch Act Reform Amendments, are prohibited by 18 U.S.C. 602 from knowingly soliciting political contributions from other employees. * * * * * [FR Doc. 96-24581 Filed 9-26-96; 8:45 am] BILLING CODE 6345-01-P