[Federal Register Volume 82, Number 99 (Wednesday, May 24, 2017)]
[Proposed Rules]
[Pages 23758-23765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-10613]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 82, No. 99 / Wednesday, May 24, 2017 / 
Proposed Rules  

[[Page 23758]]



POSTAL REGULATORY COMMISSION

5 CFR Part 5601

[Docket No. RM2017-4; Order No. 3906]


Supplemental Standards of Ethical Conduct

AGENCY: Postal Regulatory Commission.

ACTION: Proposed rulemaking.

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SUMMARY: The Commission proposes rules that amend existing rules 
related to supplemental standards of ethical conduct for Postal 
Regulatory Commission employees. The proposed rules revise the existing 
rules in order to better conform to our regulations and accurately 
reflect the Commission's regulatory role under the Postal 
Accountability and Enhancement Act. The Commission invites public 
comment on the proposed rules.

DATES: Comments are due: June 23, 2017.

FOR FURTHER INFORMATION CONTACT: David A. Trissell, General Counsel, at 
202-789-6820.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction
II. Background
III. Summary of Proposed Changes
IV. Section by Section Analysis of the Proposed Changes to 5 CFR 
Part 5601
V. Administrative Actions
VI. Ordering Paragraphs

I. Introduction

    The Postal Regulatory Commission (Commission) establishes a 
rulemaking docket to consider amending the Commission's supplemental 
standards of ethical conduct, 5 CFR part 5601. The supplemental 
standards of ethical conduct apply to Commission employees and concern 
prohibited financial holdings, disqualification when seeking non-
federal employment, and engaging in outside employment. The Commission 
proposes to update the existing supplemental standards to be consistent 
with 5 CFR part 2635 and the Commission's current regulatory role under 
the Postal Accountability and Enhancement Act (PAEA), Public Law 109-
435, 120 Stat. 3198 (2006). This rulemaking also proposes linguistic 
and organizational revisions to clarify the supplemental standards.
    The Office of Government Ethics (OGE) concurs with the Commission's 
proposed revisions to 5 CFR part 5601.

II. Background

    In 1991, Executive Order 12674, as amended by Executive Order 
12731, authorized OGE to establish a single, comprehensive, and clear 
set of executive branch standards of ethical conduct.\1\ On August 7, 
1992, OGE published a final rule titled Standards of Ethical Conduct 
for Employees of the Executive Branch (OGE Standards).\2\ The OGE 
Standards, codified at 5 CFR part 2635, became effective February 3, 
1993, and established uniform standards of ethical conduct applicable 
to all executive branch personnel. In 1993, the Postal Rate Commission 
collaborated with OGE to draft supplemental standards for inclusion in 
5 CFR part 5601. The new 5 CFR part 5601 was published as an interim 
rule. 58 FR 42839 (Aug. 12, 1993).
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    \1\ See Executive Order No. 12674, 54 FR 15159 (Apr. 12, 1989) 
(requiring OGE to establish executive-branch Standards of Ethical 
Conduct); Executive Order No. 12731, 55 FR 42547 (Oct. 17, 1990) 
(providing for supplementary agency regulations in 5 CFR to be 
promulgated jointly with OGE for inclusion in 5 CFR).
    \2\ See 57 FR 35006-35067, as corrected at 57 FR 48557 (Oct. 27, 
1992), 57 FR 52583 (Nov. 4, 1992), and 60 FR 66857-66858 (Dec. 27, 
1995).
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    In 2006, PAEA changed the name of the agency from the Postal Rate 
Commission to the Postal Regulatory Commission and made several changes 
to the Commission's regulatory role. Specifically, PAEA eliminated the 
former Postal Rate Commission's responsibility to adjudicate omnibus 
rate cases each year, which set rates for all United States Postal 
Service (Postal Service) products.\3\ Instead, under PAEA the 
Commission, among other responsibilities, approves or denies discrete 
Postal Service requests to change rates of market-dominant products or 
competitive products.\4\ Proposed rate changes include requests to 
change rates of general applicability, e.g., retail rates available to 
the public, and rates not of general applicability, e.g., negotiated 
service agreements (NSAs) with private parties. Post-PAEA, the 
Commission also must make an Annual Compliance Determination report 
concerning whether the rates or fees in effect for the year satisfied 
statutory and regulatory requirements and whether any service standards 
in effect during the year were not met. 39 U.S.C. 3653(b). These 
enhanced Commission responsibilities drive the need to modernize the 
Commission's supplemental standards of ethical conduct.
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    \3\ Public Law 109-435, 120 Stat. 3198 Sec. Sec.  201-202 (2006) 
(amending 39 U.S.C. 3621-3622 (2005) and repealing sections 3623-
3624).
    \4\ PAEA introduced the division of Postal Service products into 
market-dominant products (products delivered under the Postal 
Service monopoly) and competitive products (all other products). 39 
U.S.C. 3621-3622 and 39 CFR part 3010 (regulation of rates for 
market-dominant products); 39 U.S.C. 3631-3634 and 39 CFR part 3015 
(regulation of rates for competitive products).
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III. Summary of the Proposed Regulatory Changes

    The Commission identified a need to revise the existing 
supplemental standards for several reasons. The supplemental standards 
of ethical conduct, 5 CFR part 5601, have never been amended or 
finalized since their 1993 adoption and remain attributed to the Postal 
Rate Commission.
    Therefore, the Commission proposes amendments to accomplish the 
following goals: (1) Reflect the substantial changes to the 
Commission's regulatory role after the 2006 enactment of PAEA; (2) 
update its rules to be consistent with 5 CFR part 2635; (3) reflect 
lessons learned through the Commission's experiences with the existing 
ethics policies and practices; (4) enhance the clarity of the ethical 
guidance for its employees; (5) protect the integrity of the 
Commission's programs and processes; (6) maintain public confidence 
that Commission employees are fulfilling their duties impartially and 
objectively; (7) facilitate a well-administered ethics counseling 
program; and (8) finalize the interim supplemental standards of 
conduct.

IV. Section by Section Analysis of the Proposed Changes to 5 CFR Part 
5601

    The rules in 5 CFR part 5601 apply only to Commission personnel.

A. Title 5 CFR Part 5601

    The Commission proposes correcting the title identified in 5 CFR 
part 5601 by replacing ``Postal Rate Commission''

[[Page 23759]]

with ``Postal Regulatory Commission'' to reflect the agency's post-PAEA 
name.

B. Authority Identified in 5 CFR Part 5601

    The Commission proposes correcting the authority identified in 5 
CFR part 5601 by replacing ``39 U.S.C. 3603'' with ``39 U.S.C. 503'' to 
reflect the renumbering of that provision by PAEA.

C. Section 5601.101 General

    Section 5601.101(a) Purpose. The Commission proposes correcting 
Sec.  5601.101(a) by replacing ``Postal Rate Commission'' with ``Postal 
Regulatory Commission'' to reflect the agency's post-PAEA name. The 
Commission also proposes adding cross-references to the executive 
branch financial disclosure regulations in 5 CFR part 2634, regulations 
on responsibilities and conduct in 5 CFR part 735, and Commission-
specific provisions in 39 CFR part 3000.
    Section 5601.101(b) Definitions. The Commission proposes deleting 
the text in existing Sec.  5601.101(b), which defines ``affected 
persons'' as used in existing Sec. Sec.  5601.102 and 5601.104. The 
Commission proposes retaining aspects of the ``affected persons'' 
definition as categories of prohibited sources referenced in the 
proposed Sec.  5601.102(b), subject to modifications for clarity as 
well as updates to reflect the Commission's post-PAEA regulatory role. 
The Commission's proposal to move the categories of prohibited sources 
from Sec.  5601.101 to Sec.  5601.102 is consistent with other federal 
regulators' supplemental ethical standards.
    The Commission proposes defining eight terms in the revised Sec.  
5601.101(b) as follows:
    (1) ``securities''--based on a commonly accepted definition.
    (2) ``parent''--based on a commonly accepted definition.
    (3) ``person''--consistent with 5 CFR 2635.102(k).
    (4) ``entity''--indicating its usage to be equivalent to 
``person.''
    (5) Designated Agency Ethics Official ``DAEO''--consistent with 
Sec.  2638.601 of this title.
    (6) ``employment''--moved from the existing Sec.  5601.104(c) and 
correcting ``organizations'' from plural to singular form.
    (7) ``publicly held corporation''--consistent with a definition 
used by the Internal Revenue Service. See 26 U.S.C. 162(m)(2).
    (8) ``dependent child''--consistent with Sec.  2364.105(d) of this 
title.

D. Section 5601.102 Prohibited Financial Interests

    Section 2635.403(a) of title 5 authorizes agencies, by supplemental 
regulation, to prohibit or restrict acquiring or holding of a financial 
interest or a class of financial interests by agency employees based on 
a determination that acquiring or holding of such interests would cause 
reasonable persons to question the impartiality and objectivity with 
which the agency programs are administered. The Commission proposes 
revising the supplemental regulations to maintain the integrity of the 
Commission's programs and processes.
    The deletion of the existing language of Sec.  5601.102. The 
existing Sec.  5601.102 prohibits employees from direct or indirect 
financial interest in ``affected persons'' as defined by existing Sec.  
5601.101(b)'s non-exhaustive list of categories of prohibited financial 
interest. The Commission proposes restructuring the scope of financial 
prohibitions to be wholly contained within proposed Sec.  5601.102, 
providing greater specificity as to the prohibited categories and the 
meaning of direct versus indirect holdings, and updating the language 
to reflect that business entities, rather than natural persons, would 
most likely pose potential conflicts of interest. The proposed changes 
improve the regulation's clarity and precision.
    Section 5601.102(a) General prohibition. To ensure that employees 
do not engage in (or appear to engage in) actions that may interfere 
with the objective and impartial execution of their official duties, 
the Commission proposes prohibiting employees, their spouses, and 
dependent children from acquiring or holding particular categories of 
financial interests.
    Section 5601.102(b) Prohibited Securities List. The Commission 
proposes to compile a Prohibited Securities List (PSL) cataloguing the 
financial interests that employees, their spouses, and dependent 
children may not own. The PSL is intended to serve as a reference 
source to assist employees in identifying prohibited interests, 
particularly before purchasing securities. The Commission shall update 
and disseminate the PSL to Commission employees at least once a year. 
The proposed PSL will list entities drawn from the six categories 
listed in proposed Sec.  5601.102(b)(1). A discussion of those six 
categories follows.
1. Proposed Sec.  5601.102(b)(1)
    Proposed Sec.  5601.102(b)(1) will list the six categories based on 
the Commission's experience under PAEA which may generally cause 
conflicts of interest for all employees. The proposed PSL will list 
entities from these six categories. The proposed PSL lists prohibited 
entities solely based on the Commission's authority to issue 
supplemental standards. Depending on the employee's role within the 
Commission, other restrictions on employee's financial holdings, such 
as 18 U.S.C. 208, 5 CFR part 2635, the Ethics in Government Act, or the 
Procurement Integrity Act may apply. Employees should consult with the 
DAEO to confirm that a particular financial interest is not restricted 
based on rules other than these supplemental standards such as 18 
U.S.C. 208, 5 CFR part 2635, the Ethics in Government Act, or the 
Procurement Integrity Act. See 39 CFR 3000.10.
    The Commission proposes to include the following six categories of 
entities on the PSL:
a. Entities That Participated in Commission Proceedings in the Last 4 
Years
    Existing Sec. Sec.  5601.101(b)(1)(i) and 5601.102 prohibit 
employees from holding a financial interest in companies or persons who 
have been a party to a Commission proceeding in the past 4 years. The 
Commission proposes clarifying this prohibition to include any entity 
participating in a proceeding before the Commission in the last 4 
years. This is because the Commission's rules allow entities that are 
not parties to the proceedings to formally participate in Commission 
proceedings by expressing their views on the record and seeking relief 
from the Commission. See, e.g., 39 CFR 3001.20a. Based on the 
Commission's experiences in its proceedings after the enactment of 
PAEA, the Commission proposes that the prohibition include 
complainants, appellants, intervenors, and entities filing comments on 
the record in Commission proceedings. The prohibition does not include 
persons whose participation in Commission proceedings is limited to: 
(1) Serving as a witness; (2) serving as a Public Representative; (3) 
identification, through non-public materials provided to the Commission 
by the Postal Service according to 39 CFR part 3007, as a mailer 
entering into a negotiated service agreement (defined at Sec.  
3001.5(r) of title 39); or (4) persons merely submitting off-the-record 
statements or letters to the Commission's Office of Public Affairs and 
Government Relations. These four proposed exclusions are consistent 
with the current Commission ethics rules and practices. The particular 
exclusion of

[[Page 23760]]

persons submitting off-the-record statements or letters is warranted 
because the Commission's rules of practice clarify that such statements 
are not made or considered as part of the Commission's formal record. 
See 39 CFR 3001.20b. It is also based on the Commission's experience 
that such off-the-record statements are typically submitted by private 
citizens not intending to formally participate in the public 
proceeding, as opposed to business entities that may pose a financial 
conflict of interest for Commission employees.
b. Parties to Proceedings to Which the Commission Is Also a Party
    The Commission proposes this additional prohibition to encompass 
entities seeking some form of relief from or action by the Commission 
that are involved in cases heard by a tribunal other than the 
Commission, such as an appeal of a final Commission order in the 
courts. This prohibition is consistent with the restrictions upon 
employees of other federal regulators.
c. Competitors of the Postal Service
    Existing Sec. Sec.  5601.101(b)(1)(v) and 5601.102 prohibit 
employees from holding a financial interest in companies or persons who 
are primarily engaged in the business of delivering merchandise or 
written communications. The Commission proposes clarifying the 
prohibition's language. The Commission does not intend to modify the 
purpose of the prohibition, which prohibits employees from having a 
financial interest in competitors of the Postal Service.
d. Certain Postal Service Contractors
    In conjunction with OGE in 1993, the Commission adopted an interim 
regulation prohibiting employees from holding financial interests in 
certain Postal Service contractors. This existing prohibition applies 
to persons who provide ``services or products to the Postal Service 
that can be expected to produce income that exceeds $100,000 and equals 
or exceeds 5 percent of its gross income for the current fiscal year.'' 
5 CFR 5601.101(b)(1)(vi). The Commission proposes moving the existing 
prohibition to Sec.  5601.102(b)(1)(iv) and clarifying its terms. The 
Commission proposes to change the term ``gross income'' to ``gross 
revenue'' for two reasons. First, the proposed change reflects that the 
majority of prohibited sources are business entities rather than 
natural persons and, as such, are more likely to report either revenues 
alone or both revenues and income. Second, because companies report 
gross income as gross revenues minus operating expenses, gross revenue 
is the more appropriate measure to analyze conflicts of interest.
    The Commission also proposes that different financial thresholds 
should apply to publicly held corporations versus other entities. This 
proposed change is based on the Commission's 23 years of experience 
with the existing rule and aims to better reflect conflicts of interest 
posed by modern securities after enactment of PAEA. The Commission 
proposes to retain the dollar amount and percentage thresholds adopted 
in 1993 for entities other than publicly held corporations that report 
their gross revenue publicly. Proposed Sec.  5601.102(b)(1)(iv) will 
prohibit employees from holding interests in such entities with a 
Postal Service contract producing annual gross revenue that exceeds 
$100,000 and 5 percent of the entity's annual gross revenue.
    However, recognizing based on experience that most entities that 
are not publicly held corporations do not report gross income, the 
Commission proposes to apply the percentage threshold only if 
information regarding the entity's gross revenue is available publicly. 
Therefore, the PSL shall include an entity that provides services or 
products to the Postal Service over $100,000 if the entity is not a 
publicly held corporation and does not report its gross revenue 
publicly. An employee with a financial interest in an entity other than 
a publicly held corporation that holds a Postal Service contract 
producing annual gross revenue over $100,000 may pose an actual or 
apparent conflict of interest due to multiple factors, including the 
limited number of owners and a limited public market for trading.
    For these reasons, the Commission proposes raising the dollar 
amount and percentage thresholds adopted in 1993 applicable to publicly 
held corporations to $1,000,000 and 10 percent of annual gross revenue. 
An employee with a financial interest in a publicly held corporation 
that holds a Postal Service contract producing annual gross revenue 
over $1,000,000 and 10 percent is likely to pose a risk of an actual or 
apparent conflict of interest. The following decision tree summarizes 
the proposed Sec.  5601.102(b)(1)(iv):

[[Page 23761]]

[GRAPHIC] [TIFF OMITTED] TP24MY17.027

e. Other Entities That May Pose an Actual or Apparent Conflict of 
Interest Under 5 CFR Part 2635
    The existing definition of ``affected persons'' in whom employees 
may not hold a financial interest provides a non-exhaustive list of 
categories. Recognizing that certain categories may be imprecise, the 
Commission proposes revisions to provide greater specificity regarding 
prohibited interests. Notwithstanding such revisions, the Commission 
proposes memorializing that the touchstone of all prohibitions on 
financial holdings stems from the requirements contained in 5 CFR part 
2635, which require that employees avoid holding financial interests 
that may cause or appear to cause any appearance of loss of 
impartiality in the performance of their official duties. This proposed 
change will promote consistency between 5 CFR parts 5601 and 2635 and 
better safeguard the integrity of the Commission's programs and 
operations. The proposed change also reflects the Commission's 23 years 
of experience with the existing rule as well as the Commission's 
current responsibilities under the PAEA.
    To exemplify entities that may cause an apparent or actual conflict 
of interest, the Commission references entities primarily engaged in 
the business of sending periodicals or standard mail, which correspond 
respectively to the aspects of the definition of ``affected persons'' 
contained in existing Sec. Sec.  5601.101(b)(1)(ii) and (iv). Existing 
Sec. Sec.  5601.101(b)(1) (ii) and (iv) lack objective criteria 
limiting the scope of the prohibited interests. The existing 
prohibitions burden employees and fail to address actual or apparent 
conflict of interests. Therefore, the Commission proposes incorporating 
the provisions of Sec. Sec.  5601.101(b)(1)(ii) and (iv) as examples of 
the proposed Sec.  5601.102(b)(1)(v) to emphasize that only those users 
of periodicals and standard mail that pose an apparent or actual 
conflict of interest should be prohibited interests.
    The Commission proposes deleting existing Sec.  
5601.101(b)(1)(iii), which defines a company or other person ``[w]ho is 
in the business of selling merchandise, and a substantial portion of 
whose orders are solicited, received, or delivered through the mails'' 
as an ``affected person.'' Under the existing Sec.  5601.102, employees 
are prohibited from indirect or direct financial interests in such 
persons.
    The Commission does not propose to specifically incorporate the 
prohibition of existing Sec.  5601.101(b)(1)(iii) into the revised 
supplemental regulations because the prohibition is imprecise and 
burdensome. Drafted before the advent of e-commerce, the existing Sec.  
5601.101(b)(1)(iii) contains no threshold or definition of which 
merchandise sellers would be considered to have a substantial portion 
of their orders solicited, received, or delivered through the mails. 
Given that the majority of retailers solicit, receive, or deliver 
merchandise through the mails with the expansion of e-commerce, the 
existing Sec.  5601.101(b)(1)(iii) provides minimal guidance to 
employees and ethics officials as to which companies or persons may 
pose an apparent or actual conflict of interest. Ultimately, the 
Commission proposes deleting the existing Sec.  5601.101(b)(1)(iii) 
because such financial holdings pose minimal risk of an apparent or 
actual conflict of interest.
    Also, the enactment of PAEA has transformed the Commission's 
regulatory role. In 1993, the primary rationale given for adopting the 
existing Sec.  5601.102 was to prevent disqualification of too many

[[Page 23762]]

Commission employees during omnibus rate proceedings, which the 
Commission no longer holds. Thus, the Commission proposes to revise the 
existing Sec.  5601.102 to reflect the Commission's post-PAEA role. 
Further, the proposed revised categories of prohibited sources would 
likely encompass any potential mail order retailers that may exert (or 
appear to exert) considerable influence upon the mailing industry. For 
instance, such retailers would likely have participated in Commission 
proceedings in the last 4 years (as addressed by the proposed Sec.  
5601.102(b)(1)(i)).
f. Parent Corporations to Any of the Above Categories
    The Commission proposes prohibiting its employees from holding 
financial interests in parent entities of any of the above-listed 
categories of prohibited holdings. This type of prohibition is 
consistent with the restrictions on other federal regulators' 
employees.
2. Proposed 5 CFR 5601.102(b)(2)
    To improve structural clarity and consistency, the Commission 
proposes moving the exclusion in the existing Sec.  5601.101(b)(2) to 
the proposed Sec.  5601.102(b)(2). Also, the Commission proposes 
replacing ``company or other person'' with ``entity'' and instead 
referring to the PSL consistent with the other proposed linguistic 
changes to 5 CFR part 5601.
    Section 5601.102(c) Exception. The Commission proposes adding Sec.  
5601.102(c) to clarify that proposed Sec.  5601.102 does not prohibit 
employees from holding diversified mutual funds or sector mutual funds 
that do not concentrate their investments in entities identified in the 
proposed Sec. Sec.  5601.102(b)(1)(i)-(vi). This proposed addition 
makes the Commission's proposed changes consistent with Sec.  2640.201 
of this title.
    Section 5601.102(d) Newly prohibited securities or new employees. 
The Commission proposes adding Sec.  5601.102(d) to provide guidance to 
employees that discover they hold an interest in an entity on the PSL, 
either when the employee receives the prohibited securities list for 
the first time (e.g., employees receiving the first publication of the 
PSL or new employees) or receives an updated version of the PSL adding 
entities. The Commission proposes requiring such employees to notify 
the DAEO in writing of prohibited holdings within 30 days of 
dissemination of the PSL. The Commission proposes requiring such 
employees to divest the interest or obtain a waiver under proposed 
Sec.  5601.102(g) within 90 days of dissemination of the PSL.
    Section 5601.102(e) Securities acquired without specific intent. 
The Commission proposes adding Sec.  5601.102(e) to guide employees 
that acquire an interest in a prohibited security without specific 
intent (e.g., through marriage, inheritance, or gift). The Commission 
proposes requiring such employees to notify the DAEO in writing within 
30 days of the acquisition. The Commission proposes requiring such 
employees to divest the interest or obtain a waiver within 90 days of 
acquisition.
    Section 5601.102(f) Divestiture. 5 CFR part 2635 and the ethics 
policies of the Commission permit employees to divest themselves of 
prohibited financial interests under particular circumstances. The 
Commission proposes adding Sec.  5601.102(f) to set forth a uniform 
standard and guide for employees regarding how to accomplish 
divestiture, obtain extensions of time to divest, and accomplish 
disqualification pending divestiture.
    (1) Procedure for accomplishing divestiture. The Commission 
proposes requiring employees to submit written proof of divestiture to 
the DAEO. The Commission proposes that the employee shall continue to 
be recused until the date of the DAEO's written confirmation that 
divestiture has been accomplished.
    (2) Extension of period to divest. Consistent with Sec.  
2635.403(d) of this title, the proposed regulation provides 90 days for 
divestiture, with extension available in cases of undue hardship.
    (3) Disqualification pending divestiture. The Commission proposes 
requiring an employee to disqualify himself or herself (or obtain a 
waiver under proposed Sec.  5601.102(g)) from participation in any 
particular matters that may pose a conflict of interest before the 
employee receives written confirmation of divestiture from the DAEO.
    This proposed procedure will help to maintain public confidence and 
protect the Commission's integrity by ensuring that employees are not 
working on matters affecting their financial interests.
    Section 5601.102(g) Waivers. 5 CFR part 2635 and the ethics 
policies of the Commission permit employees to obtain waivers of 
disqualification under particular circumstances. The Commission 
proposes adding Sec.  5601.102(g) to provide greater specificity 
regarding the requirements to obtain a waiver and to acknowledge that a 
waiver may be conditional. The Commission proposes that the DAEO shall 
have authority to grant a written waiver of the application of proposed 
Sec.  5601.102(a) based on a determination that the waiver is not 
prohibited by law or inconsistent with Sec.  2635.402(d) of this title 
and that the particular circumstances do not require that the financial 
interest be prohibited or divested to avoid an apparent conflict of 
interest. An employee may be required under the waiver to disqualify 
himself or herself from a particular matter or take other appropriate 
action.
    The waiver provision is intended, in appropriate cases, to ease the 
undue burden that the prohibited financial interests section may impose 
on Commission employees, while ensuring that employees do not engage in 
actions that may interfere with the objective and impartial execution 
of their official duties or raise questions about possible misuse of 
their official positions.

E. Section 5601.103 Notice of Disqualification When Seeking Employment

    The existing Sec.  5601.103 requires employees to notify their 
supervisors of the need to disqualify themselves from proceedings when 
seeking employment. The Commission proposes dividing Sec.  5601.103 
into sections (a) and (b). Proposed Sec.  5601.103(a) requires notice 
of disqualification when seeking employment to be made in writing and 
directed to the DAEO within 3 business days. The Commission also 
proposes modifying Sec.  5601.103(a) to reflect that supervisors 
seeking employment must notify the DAEO to ensure that the supervisor 
is disqualified from working on and supervising matters relating to the 
supervisor's prospective employer's financial interest. The Commission 
proposes requiring the DAEO to inform the employee's supervisor of the 
disqualification. This proposed amended procedure does not replace any 
notification requirements imposed upon employees required to file 
public financial disclosure reports (OGE form 278(e)) to comply with 
the Stop Trading on Congressional Knowledge Act of 2012. See Public Law 
112-105, 126 Stat. 291, 303-04, Sec.  17 (2012). Public filers must 
comply with additional notification requirements set forth in Sec.  
2635.607 of this title. Proposed Sec.  5601.103(b) addresses withdrawal 
of notices of disqualification by employees.
    Notification of disqualification to the DAEO facilitates the DAEO's 
ability to advise employees of potential ethical concerns. Where 
disqualification is necessary, the Commission proposes requiring a 
written record to protect both the disqualified employee and the 
Commission. A written statement

[[Page 23763]]

maintained by the DAEO avoids possible questions about the scope and 
terms of the disqualification and ensures that the Commission will be 
able to provide adequate staffing for the affected matter. To encourage 
employee candor concerning potential disqualifications and maintain the 
integrity of the Commission's programs and processes, the DAEO need not 
inform the employee's supervisor of the reason for the employee's 
disqualification. The Commission's proposal merely amends the 
notification procedure when disqualification is otherwise appropriate. 
The Commission's proposal makes no changes to the standard to determine 
when disqualification is necessary.

F. Section 5601.104 Prohibited Outside Employment

    Existing Sec.  5601.104 is titled ``Outside employment'' and 
includes discussion of both prohibited outside employment and outside 
employment that is permitted, subject to prior approval. To 
differentiate between these two concepts, the Commission proposes to 
divide the concepts into two separate rules. Proposed Sec.  5601.104 
discusses only prohibited outside employment, which is currently 
discussed in existing Sec.  5601.104(a). Newly created proposed Sec.  
5601.105 discusses prior approval for outside employment, which is 
currently discussed in existing Sec.  5601.104(b). The Commission 
proposes moving the existing Sec. Sec.  5601.104(c) to 5601.101(b)(6) 
with the other defined terms of 5 CFR part 5601. See supra part VI.C.
    Accordingly, the Commission proposes retitling Sec.  5601.104 as 
``Prohibited outside employment.'' Also, the Commission proposes 
replacing the phrase ``a company or other person whose interests are 
significantly affected by rates of postage, fees for postal services, 
the classification of mail or the operations of the Postal Service'' 
with the phrase ``an entity on the prohibited securities list described 
in Sec.  5601.102(b).'' This proposed change reflects the replacement 
of the Sec.  5601.101(b) ``affected persons'' terminology with the 
``prohibited securities list'' terminology used in the proposed Sec.  
5601.102(b).

G. Section 5601.105 Prior Approval for Outside Employment

    The Commission proposes to create separate Sec.  5601.105 to 
discuss prior approval for outside employment and subdivides the 
discussion into sections (a) and (b) as follows.
    Section 5601.105(a) Prior approval for outside employment. The 
Commission proposes amendments to make this subsection consistent with 
the existing text of Sec.  3000.20(b) of title 39 and to enhance 
clarity. Currently, the DAEO provides employees approved for outside 
employment (and their supervisor) with a written memorandum counseling 
the employee regarding potential ethical concerns. See 39 CFR 
3000.10(a). Consistent with this current practice, the Commission 
proposes requiring the DAEO to provide the written notice of approval 
to the employee's supervisor. The Commission proposes this modification 
to ensure that employees do not work on matters that may pose an actual 
or apparent conflict of interest and thereby maintain the integrity of 
the Commission's programs and processes.
    Section 5601.105(b) Scope of approval. Also, the Commission 
proposes addressing the scope of approval for outside employment. The 
Commission proposes requiring employees to submit a new request for 
approval upon a significant change in the nature or scope of the 
outside employment or a change in the employee's Commission position or 
assigned responsibilities. This requirement will enable the DAEO to 
prevent actual or apparent conflicts of interest that may develop based 
on changes in circumstances after approval for outside employment has 
been granted.

V. Administrative Actions

    The Commission establishes Docket No. RM2017-4 for consideration of 
matters raised by this Order. Additional information concerning this 
rulemaking may be accessed via the Commission's Web site at http://www.prc.gov. Interested persons may submit comments on this Order no 
later than 30 days after the date of publication of this Order in the 
Federal Register. Pursuant to 39 U.S.C. 505, Samuel M. Poole is 
designated as an officer of the Commission (Public Representative) to 
represent the interests of the general public in this proceeding.

VI. Ordering Paragraphs

    It is ordered:
    1. The Commission establishes Docket No. RM2017-4 for consideration 
of the matters raised by this Order.
    2. Interested persons may submit comments no later than 30 days 
after the date of publication of this Order in the Federal Register.
    3. Pursuant to 39 U.S.C. 505, the Commission appoints Samuel M. 
Poole to serve as an officer of the Commission (Public Representative) 
to represent the interests of the general public in this proceeding.
    4. The Secretary shall arrange for publication of this Order in the 
Federal Register.

    By the Commission.
Stacy L. Ruble,
Secretary.
    By the Office of Government Ethics.
Walter M. Shaub, Jr.,
Director, Office of Government Ethics.

List of Subjects in 5 CFR Part 5601

    Conflicts of interests.

    For the reasons discussed in the preamble, the Commission proposes 
to amend chapter XLVI of title 5 of the Code of Federal Regulations as 
follows:

0
1. Revise part 5601 to read as follows:

PART 5601--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES 
OF THE POSTAL REGULATORY COMMISSION

Sec.
5601.101 General.
5601.102 Prohibited financial Interests.
5601.103 Notice of disqualification when seeking employment.
5601.104 Prohibited outside employment.
5601.105 Prior approval for outside employment.

    Authority: 5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government 
Act of 1978); 39 U.S.C. 503; 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 2635.105, 2635.403(a), 2635.802(a), 2635.803.
    Source: 58 FR 42840, Aug. 12, 1993, unless otherwise noted.


Sec.  5601.101   General.

    (a) Purpose. In accordance with Sec.  2635.105 of this title, the 
regulations in this part apply to employees, including Commissioners, 
of the Postal Regulatory Commission (Commission) and supplement the 
Standards of Ethical Conduct for Employees of the Executive Branch 
contained in part 2635 of this title. In addition, the executive branch 
financial disclosure regulations contained in part 2634 of this title, 
additional regulations on responsibilities and conduct at part 735 of 
this title, and Commission-specific provisions contained in 39 CFR part 
3000 apply to Commission employees.
    (b) Definitions. For the purposes of this part:
    (1) The term securities includes an interest in debt or equity 
instruments. The term includes, without limitation, secured and 
unsecured bonds, debentures, notes, securitized assets, and commercial 
paper, as well as all types of preferred and common stock. The term 
encompasses both current and contingent ownership interests, including 
any beneficial or legal interest

[[Page 23764]]

derived from a trust. It extends to any right to acquire or dispose of 
any long or short position in such securities and includes, without 
limitation, interests convertible into such securities, as well as 
options, rights, warrants, puts, calls, and straddles with respect 
thereto.
    (2) The term parent means a company that possesses, directly or 
indirectly, the power to direct or cause the direction of the 
management and policies of an entity identified in Sec. Sec.  5601.102 
(b)(1)(i)-(b)(1)(v).
    (3) The term person means an individual, corporation and 
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. For 
purposes of this part, a corporation will be deemed to control a 
subsidiary if it owns 50 percent or more of the subsidiary's voting 
securities. The term is all-inclusive and applies to commercial 
ventures and nonprofit organizations as well as to foreign, State, and 
local governments, including the Government of the District of 
Columbia. It does not include any agency or other entity of the Federal 
Government or any officer or employee thereof when acting in his 
official capacity on behalf of that agency or entity.
    (4) The term entity means person.
    (5) The term DAEO means the Designated Agency Ethics Official, or 
his delegate under Sec.  2638.601 of this title.
    (6) The term employment means any form of non-Federal employment or 
business relationship involving the provision of personal services by 
the employee. It includes but is not limited to personal services as an 
officer, director, employee, agent, attorney, consultant, contractor, 
general partner or trustee. Employment does not include participation 
in the activities of a nonprofit charitable, religious, professional, 
social, fraternal, educational, recreational, public service or civic 
organization unless such activities involve the practice of a 
profession within the meaning of Sec.  2636.305(b)(1) of this title, 
including the giving of professional advice, or are for compensation, 
other than reimbursement of expenses.
    (7) The term publicly held corporation means any corporation 
issuing any class of common equity securities required to be registered 
under section 12 of the Securities Exchange Act of 1934.
    (8) The term dependent child means when used with respect to any 
reporting individual, any individual who is a son, daughter, stepson, 
or stepdaughter and who:
    (i) Is unmarried, under age 21, and living in the household of the 
reporting individual; or
    (ii) Is a dependent of the reporting individual within the meaning 
of section 152 of the Internal Revenue Code of 1986, 26 U.S.C. 152.


Sec.  5601.102   Prohibited financial interests.

    (a) General prohibition. No employee, and no spouse or dependent 
child of an employee, shall acquire or hold any securities issued by an 
entity on the prohibited securities list described in paragraph (b) of 
this section.
    (b) Prohibited securities list. At least once a year, the 
Commission will publish and distribute to employees a list of entities 
whose securities an employee or the spouse or dependent child of an 
employee may not own.
    (1) The list shall include:
    (i) An entity participating in a proceeding before the Commission 
in the last 4 years, e.g., complainants, appellants, intervenors, and 
entities filing comments on the record in Commission proceedings;
    (ii) A party to a proceeding to which the Commission is a party, 
e.g., appellate proceedings, administrative proceedings, or civil 
actions;
    (iii) An entity primarily engaged in the business of delivering 
packages, merchandise, or written communications, i.e., an entity whose 
primary business competes with the Postal Service;
    (iv) An entity providing services or products to the Postal Service 
that can be expected to produce annual revenue:
    (A) To a publicly held corporation exceeding $1,000,000, and if the 
entity reports its gross revenue publicly, exceeding 10 percent of its 
annual gross revenue; or
    (B) to any other entity exceeding $100,000, and if the entity 
reports its gross revenue publicly, exceeding 5 percent of the entity's 
annual gross revenue;
    (v) Any other entities not listed above for which a Commission 
employee holding a security may raise an actual or apparent loss of 
impartiality affecting the integrity of the Commission's programs and 
operations, e.g., entities primarily engaged in the business of 
publishing or distributing publications such as periodicals or sending 
advertising, promotional, or other material on behalf of itself or 
another entity through the mails; and
    (vi) The parent corporation of any subsidiary described in 
paragraphs (b)(1)(i)-(b)(1)(v) of this section.
    (2) The list shall not include an entity whose use of the mail is 
merely an incidental or minor factor in the general conduct of its 
business.
    (c) Exception. Nothing in this section prohibits an employee, or 
the spouse or dependent child of an employee, from acquiring or holding 
an interest in a publicly traded or publicly available mutual fund or 
other collective investment fund, or in a widely held pension or mutual 
fund, provided that the fund's prospectus or practice does not indicate 
the stated objective of concentrating its investments in entities 
identified in paragraphs (b)(1)(i)-(b)(1)(vi) of this section.
    (d) Newly prohibited securities or new employees. Within 30 days 
after the Commission disseminates the prohibited securities list to an 
employee, an employee who owns, or whose spouse or dependent child 
owns, prohibited securities shall report that ownership to the DAEO. 
The employee's report must be in writing and include the name of the 
prohibited security and the date of acquisition. Except as provided in 
paragraph (g) of this section, the employee, or the spouse or dependent 
child of the employee, shall divest prohibited securities within 90 
days after dissemination of the prohibited securities list.
    (e) Securities acquired without specific intent. Within 30 days 
after an employee, or the spouse or dependent child of an employee, 
acquires securities of an entity on the prohibited securities list as a 
result of marriage, inheritance, gift or otherwise without specific 
intent to acquire the securities, the employee shall report the 
acquisition to the DAEO. The employee's report must be in writing and 
include the name of the prohibited security, the date of acquisition, 
and the method of acquisition. Except as provided in paragraph (g) of 
this section, an employee, or the spouse or dependent child of an 
employee, shall divest prohibited securities within 90 days after the 
date of acquisition.
    (f) Divestiture.
    (1) Procedure for accomplishing divestiture. To alleviate an actual 
or apparent conflict of interest, an employee divesting prohibited 
securities shall obtain written confirmation from the DAEO that 
divesture has been accomplished. A request for such confirmation shall 
be submitted in writing with sufficient proof to enable the DAEO to 
confirm that the employee has divested the prohibited security. The 
employee shall continue to be recused until the date of the DAEO's 
written confirmation that divestiture has been accomplished.
    (2) Extension of period to divest. Upon a showing of undue 
hardship, the DAEO may extend the 90 day period for

[[Page 23765]]

divestiture specified in paragraphs (e) through (f) of this section.
    (3) Disqualification pending divestiture. Pending divestiture of 
prohibited securities, an employee must disqualify himself or herself, 
in accordance with Sec.  2635.402 of this title, from participation in 
particular matters which, as a result of continued ownership of the 
prohibited securities, would affect the financial interests of the 
employee, or those of the spouse or dependent child of the employee.
    (g) Waivers. The DAEO may grant a written waiver from this section 
based on a determination that the waiver is not inconsistent with 5 CFR 
part 2635 of this title or otherwise prohibited by law and that, under 
the particular circumstances, application of the prohibition is not 
necessary to avoid the appearance of an employee's misuse of position 
or loss of impartiality, or to otherwise ensure confidence in the 
impartiality and objectivity with which the Commission's programs are 
administered, or in the case of a special Government employee, 
divestiture would result in substantial financial hardship. A waiver 
under this paragraph must be in writing and may impose conditions, such 
as requiring execution of a written disqualification.


Sec.  5601.103   Notice of disqualification when seeking employment.

    (a) An employee who has been assigned to or is supervising work on 
a particular matter that affects the financial interests of a 
prospective employer and who is required, in accordance with Sec.  
2635.604(a) of this title, to disqualify himself or herself from 
participation in that matter shall provide written notice of 
disqualification to the DAEO within 3 business days. The DAEO shall 
inform the employee's supervisor that the employee is disqualified from 
the matter. Public filers must comply with the notification 
requirements set forth in Sec.  2635.607 of this title even when not 
required to disqualify from participation in a particular matter. 
Employees who file a notification statement in compliance with Sec.  
2635.607 of this title are not required to file a separate notice under 
this section.
    (b) An employee may withdraw written notice under paragraph (a) of 
this section upon determining that disqualification from participation 
in the matter is no longer required. A withdrawal of disqualification 
shall be in writing and shall be provided to the DAEO. The DAEO shall 
inform the employee's supervisor that the employee is no longer 
disqualified from the matter.


Sec.  5601.104   Prohibited outside employment.

    An employee shall not engage in outside employment, either on a 
paid or unpaid basis, with or for an entity on the prohibited 
securities list described in Sec.  5601.102(b)(1)(i)-(b)(1)(vi).


Sec.  5601.105   Prior approval for outside employment.

    (a) Prior approval for outside employment. An employee who wishes 
to engage in outside employment, either on a paid or unpaid basis, 
shall obtain the prior written approval of the DAEO. A request for such 
approval shall be submitted in writing with sufficient description of 
the employment to enable the DAEO to give approval based on an informed 
determination that the outside employment is not expected to involve 
conduct prohibited by statute or Federal regulation, including 
paragraph (a) of this section and part 2635 of this title. The DAEO 
shall provide a copy of any written approvals for outside employment to 
the employee's supervisor.
    (b) Scope of approval. An employee must submit a new request for 
approval upon either a significant change in the nature or scope of the 
outside employment or a change in the employee's Commission position or 
assigned responsibilities.

[FR Doc. 2017-10613 Filed 5-23-17; 8:45 am]
BILLING CODE 7710-FW-P