[Federal Register Volume 82, Number 99 (Wednesday, May 24, 2017)]
[Proposed Rules]
[Pages 23766-23769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-10636]


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POSTAL REGULATORY COMMISSION

39 CFR Part 3000

[Docket No. RM2017-4; Order No. 3907]


Supplemental Standards of Ethical Conduct

AGENCY: Postal Regulatory Commission.

ACTION: Proposed rulemaking.

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SUMMARY: The Commission proposes to delete its existing ethics rules to 
avoid duplication and those changes proposed to by the Commission with 
the concurrence of the Office of Government Ethics.

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 the Proposed Regulatory Changes
IV. Section-by-Section Analysis of the Proposed Changes to 39 CFR 
Subpart A of Part 3000
V. Section-by-Section Analysis of the Proposed Changes to the Title 
Identified in Subchapter A of Chapter III of Title 39
VI. Administrative Actions
VII. Ordering Paragraphs

I. Introduction

    The Postal Regulatory Commission (Commission) establishes a 
rulemaking docket to consider amending the Commission's ethics rules, 
39 CFR subpart A of part 3000. The Commission proposes to delete its 
existing ethics rules to avoid duplication of 5 CFR part 2635 and those 
changes proposed to 5 CFR part 5601 by the Commission with the 
concurrence of the Office of Government Ethics (OGE).\1\ This 
rulemaking also proposes to replace the deleted ethics rules with new 
rules that reflect the Commission's current regulatory role under the 
Postal Accountability and Enhancement Act (PAEA), Public Law 109-435, 
120 Stat. 3198 (2006). The proposed rules aim to treat employees' and 
former employees' interactions with the Postal Service substantially 
the same as if those interactions were with entities that are not part 
of the federal government.
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    \1\ See Order No. 3906, Notice of Proposed Rulemaking on 
Amendments to Supplemental Standards of Ethical Conduct for 
Employees of the Postal Regulatory Commission, May 19, 2017.
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II. Background

A. The Existing 39 CFR Subpart A of Part 3000

    The ethics rules contained in 39 CFR subpart A of part 3000 were 
adopted in a 1971 rulemaking, in which the Civil Service Commission 
promulgated employee conduct regulations on the Commission's behalf.\2\ 
In 1993, the Commission collaborated with OGE to revise the 
Commission's ethics rules in 39 CFR subpart A of part 3000. The ethics 
rules in 39 CFR subpart A of part 3000 retained ``those portions of the 
current standards of conduct not superseded by [OGE's] amendments to 
title 5 of the Code of Federal Regulations and incorporate[d] 
provisions of the Supplemental Standards of Ethical Conduct for 
Employees of the Postal Rate Commission issued in 5 CFR part 5601 with 
the concurrence of [OGE].'' \3\ The Commission amended the ethics rules 
in 2001 to eliminate a redundant provision.\4\
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    \2\ See 36 FR 5412 (Mar. 23, 1971).
    \3\ 58 FR 42873 (Aug. 12, 1993).
    \4\ 66 FR 32544 (Jun. 15, 2001).
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    In 2006, the PAEA made several changes to the Commission's 
regulatory role. Specifically, the PAEA eliminated the responsibility 
to adjudicate omnibus rate cases each year, which set rates for all 
Postal Service products.\5\ Instead, under the PAEA the Commission, 
among other responsibilities, approves or denies discrete Postal 
Service requests to change rates of market dominant products or 
competitive products.\6\ 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. See id. Post-PAEA, the 
Commission 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

[[Page 23767]]

the year were not met. See 39 U.S.C. 3653(b).
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    \5\ Public Law 109-435, 120 Stat. 3198, sections 201-202 (2006) 
(amending 39 U.S.C. 3621-3622 (2005) and repealing sections 3623-
3624).
    \6\ The 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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    In 2007, the Commission amended its ethics rules to reflect the 
renumbering of its statutory authority and revised the agency's name 
due to the enactment of the PAEA. In 2016, the Commission amended its 
ethics rules to redesignate the numbering to be consistent with the 
Federal Register Document Drafting Handbook and to correct the listed 
authority.\7\ Neither amendment modernized the Commission's ethics 
rules to reflect the PAEA's enhancements to the Commission 
responsibilities.
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    \7\ 81 FR 42534, 42540 (Jun. 30, 2016).
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B. Other Existing Ethics Laws and Rules

    There are several government wide ethics rules and laws that do not 
apply in certain instances involving intra-federal government 
interactions because of the acknowledgment of a low probability of 
ethical problems arising in those settings. However, while the Postal 
Service is also a federal government entity, it regularly appears in 
dockets before the Commission requesting relief on certain matters 
(either of its own volition or because the law mandates the Postal 
Service seek relief or permission from the Commission depending on the 
issue). This situation presents the appearance of, if not actual, 
conflicts that would occur in any other scenario if the Postal Service 
were a non-federal government entity, and for which these types of 
rules were intended to apply. But for the Postal Service's status as a 
federal government entity, the same ethics restrictions would apply. 
These changes are aimed at fixing this unintended consequence.
    Existing 5 CFR part 2641 and 18 U.S.C. 207 are post-employment 
restrictions applicable to former federal employees, including 
Commission employees. There are certain exceptions to these post-
employment restrictions, such as former Commission employees working 
for a different agency in the executive branch. See 39 U.S.C. 
207(j)(1); 39 CFR 2641.301(a). Therefore, 5 CFR part 2641 or 18 U.S.C. 
207 does not appear to apply to former Commission employees working for 
the Postal Service.
    Existing Sec.  2635.604 and proposed Sec.  5601.103 of title 5 \8\ 
require Commission employees seeking non-federal employment to provide 
notice of disqualification from particular Commission matters. 
Therefore, Sec.  2635.604 and proposed Sec.  5601.103 of title 5 do not 
appear to apply to a Commission employee seeking employment with the 
Postal Service.
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    \8\ The Commission, with the concurrence of OGE, proposes to 
amend 5 CFR part 5601. See supra n.1.
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    Subpart B of 5 CFR part 2635 restricts Commission employees from 
accepting gifts from sources outside the federal government. Subpart C 
of 5 CFR part 2635 restricts Commission employees from accepting gifts 
from a lower-paid employee or giving gifts to an official superior. 
Therefore, in most cases, neither subpart would prohibit a Commission 
employee from accepting a gift from the Postal Service or a Postal 
Service employee since the Postal Service is part of the federal 
government.

III. Summary of the Proposed Regulatory Changes

    The Commission proposes to revise its existing ethics rules for 
several reasons. To avoid duplication of 5 CFR part 2635 and the 
proposed 5 CFR part 5601,\9\ the Commission proposes to delete the text 
and titles of existing Sec. Sec.  3000.5, 3000.10, 3000.15, and 
3000.20.
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    \9\ See supra n.1.
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    To reflect the substantial changes to the Commission's regulatory 
role after the 2006 enactment of the PAEA, which placed the Commission 
in the unique position of directly regulating the Postal Service, a 
federal agency, the Commission proposes new ethics rules that will 
treat employees' interactions with the Postal Service substantially the 
same as if those interactions were with private entities. The proposed 
ethics rules are intended to protect the integrity of the Commission's 
programs and processes and maintain public confidence that Commission 
employees are fulfilling their duties impartially and objectively. The 
proposed ethics rules reflect lessons learned through the Commission's 
experiences with the existing ethics rules.

IV. Section-by-Section Analysis of the Proposed Changes to 39 CFR 
Subpart A of Part 3000

    The rules in 39 CFR subpart A of part 3000 apply only to Commission 
personnel and former Commission personnel.

A. Section 3000.5

    The deletion of the existing language of Sec.  3000.5. Because the 
text of the existing Sec.  3000.5 is redundant to proposed Sec.  
5601.101(a) of title 5,\10\ the Commission proposes deleting the 
existing text and title of Sec.  3000.5.
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    \10\ See supra n.1.
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    Proposed Sec.  3000.5 Post-employment restrictions. Federal 
employees, including Commission employees, may not contact an employee 
of any federal agency or court on behalf of another person or entity 
concerning an official matter with which the former employee was 
involved as a government employee. See 18 U.S.C. 207(a)(1). Federal 
employees, including Commission employees, may not contact an employee 
of any federal agency or court on behalf of another person or entity 
concerning an official matter that was pending under the former 
employee's official responsibility during the last year of his or her 
federal government employment. See 18 U.S.C. 207(a)(2). Neither 
restriction applies to former Commission employees that subsequently 
work for the Postal Service.
    Because Commission employees obtain specific technical knowledge 
and skills in the course of their employment that may advantage a 
subsequent employer, including the Postal Service, and may disadvantage 
the Commission and the public, the Commission proposes to add post-
employment restrictions that are applicable to all employers, including 
the Postal Service. The Commission proposes retitling Sec.  3000.5 of 
title 39 as post-employment restrictions.
    Paragraph (a) of proposed Sec.  3000.5 would prohibit any former 
employee of the Commission from practicing or acting as an attorney, 
expert witness, or representative in connection with any proceeding or 
matter before the Commission that the former employee handled, advised, 
or participated in the consideration of while working at the 
Commission. Paragraph (b) of proposed Sec.  3000.5 would prohibit any 
former employee of the Commission, for one year after leaving the 
Commission, from practicing or acting as an attorney, expert witness, 
or representative in connection with any proceeding or matter before 
the Commission that was under the former employee's official 
responsibility as defined in 18 U.S.C. 202(b).
    Paragraph (a) of Sec.  3000.5's permanent ban on such participation 
in particular matters and Paragraph (b) of Sec.  3000.5's one year ban 
on participation in matters under official responsibility applies to 
the former employee's practice or action before the Commission on 
behalf of any participant, including the Postal Service. The proposed 
Sec.  3000.5 does not reduce any responsibilities imposed upon former 
government employees under any other applicable law including executive 
orders, such as Executive Order No. 13490, 74 FR 4673 (Jan. 26, 2009); 
statute, such as 18 U.S.C.

[[Page 23768]]

207; or other regulations, such as 5 CFR part 2641.

B. Section 3000.10

    The deletion of the existing language of Sec.  3000.10. Because the 
text of the existing Sec.  3000.10 is redundant to 5 CFR part 2638, the 
Commission proposes deleting the existing text and title of Sec.  
3000.10.
    Proposed Sec.  3000.10 Additional required notification of 
disqualification when seeking employment. Existing Sec.  2635.604 of 
title 5 requires federal employees, including Commission employees, to 
recuse themselves from participating in matters that may directly and 
predictably affect the financial interest of a prospective employer. 
Proposed Sec.  5601.103 of title 5 specifies the procedure for 
Commission employees to provide notice.\11\ Federal employees, 
including Commission employees, required to file public financial 
disclosure reports (OGE form 278(e)), must comply with additional 
notification requirements set forth in Sec.  2635.607 of title 5 and 
the Stop Trading on Congressional Knowledge Act of 2012.\12\ None of 
these requirements apply to former Commission employees that seek 
employment with the Postal Service. However, a Commission employee 
seeking employment with the Postal Service may experience an actual or 
an appearance of a conflict of interest between his or her subsequent 
employment prospects and current work.
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    \11\ See supra n.1.
    \12\ See Public Law 112-105, 126 Stat. 291, 303-04, section 17 
(2012).
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    Therefore, the Commission proposes to require its employees who 
seek employment with the Postal Service to provide notice of 
disqualification consistent with the rules applicable to seeking non-
federal employment. The Commission proposes retitling Sec.  3000.10 as 
``additional required notification of disqualification when seeking 
employment.'' Proposed paragraph (a) of Sec.  3000.10 would require a 
Commission employee seeking employment with the Postal Service to 
provide notice consistent with proposed Sec.  5601.103(a) of title 5. 
Proposed paragraph (b) of Sec.  3000.10 permits the employee to 
withdraw notice of disqualification consistent with proposed Sec.  
5601.103(b) of title 5.

C. Section 3000.15

    The deletion of the existing language of Sec.  3000.15. Because the 
text of the existing Sec.  3000.15 is redundant to the proposed Sec.  
5601.102 of title 5,\13\ the Commission proposes deleting the existing 
text and title of Sec.  3000.15.
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    \13\ See supra n.1.
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    Proposed Sec.  3000.15 Additional restriction on gifts. Executive 
Order No. 11570, as amended by Executive Order No. 12107, requires 
Commission regulations to prohibit the receipt of anything of value by 
a Commission employee ``from an individual or organization having, or 
likely to have, business with the Commission.'' \14\
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    \14\ See Executive Order No. 11570, 35 FR 18183 (Nov. 24, 1970); 
Executive Order No. 12107, 44 FR 1055 (Dec. 28, 1978).
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    Unless an exception applies, federal employees, including 
Commission employees, generally may not accept gifts that are given 
because of their official positions or that come from certain 
prohibited sources. 5 CFR 2635.202(a). The definition of ``gift'' 
excludes ``[a]nything which is paid for by the Government.'' 5 CFR 
2635.203(b)(7). Therefore, even though the Postal Service regularly 
appears before and seeks relief from the Commission, things of value 
given by the Postal Service to Commission employees are not considered 
gifts under the existing regulations. By contrast, Sec.  2635.202(a) of 
title 5 generally prohibits acceptance of gifts that come from non-
federal government entities that regularly appear before or seek relief 
from the Commission.
    The Commission proposes revising Sec.  3000.15 to similarly 
prohibit a Commission employee from accepting a gift from the Postal 
Service unless first permitted by an exception or exclusion contained 
in Sec.  2635 other than Sec.  2635.203(b)(7) of title 5. The 
Commission proposes to retitle Sec.  3000.15 as ``additional limitation 
on acceptance of anything of value.'' The Commission believes that 
proposed Sec.  3000.15 is consistent with Executive Order No. 11570, as 
amended by Executive Order No. 12107.

D. Section 3000.20

    The deletion of the existing language of Sec.  3000.20. Because the 
text of the existing section 3000.20 is redundant to the proposed 
Sec. Sec.  5601.104(a) and (b) and 5601.103(a) of title 5,\15\ the 
Commission proposes deleting the existing text and title of Sec.  
3000.20.
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    \15\ See supra n.1.
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    Proposed Sec.  3000.20 Reserved. The Commission proposes to reserve 
Sec.  3000.20.

V. Section-by-Section Analysis of the Proposed Changes to the Title 
Identified in Subchapter A of Chapter III of Title 39

    Title identified in subchapter A of chapter III of title 39. The 
Commission proposes removing the existing heading ``Subchapter A--
Personnel'' from chapter III of title 39. The existing heading is 
incorrect because several parts of subchapter A of chapter III of title 
39 do not relate to personnel. Further, the existing heading is 
unnecessary because there are no additional subchapters within chapter 
III of title 39.

VI. 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 no later than 30 
days from the date of the publication of this notice 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.

VII. 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 
from the date of the publication of this notice 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.

List of Subjects in 39 CFR Part 3000

    Conflict of interests.

    For the reasons discussed in the preamble, the Commission proposes 
to amend chapter III of title 39 of the Code of Federal Regulations as 
follows:

CHAPTER III--POSTAL REGULATORY COMMISSION

0
1. Under the authority of 39 U.S.C. 503 remove the heading of 
subchapter A.

[[Page 23769]]

PART 3000--STANDARDS OF CONDUCT

0
2. The authority citation for part 3000 continues to read as follows:

    Authority: 39 U.S.C. 503; 504, 3603; E.O. 12674; 54 FR 15159; 3 
CFR,1989 Comp., p. 215, as modified by E.O. 12731, 56 FR 42547, 3 
CFR, 1990 Comp., p. 396, 5 CFR parts 2634 and 2635.

0
3. Revise subpart A of part 3000 to read as follows:

Subpart A--General Provisions

Sec.
3000.5 Post-employment restriction.
3000.10 Additional required notification of disqualification when 
seeking employment.
3000.15 Additional restriction on gifts.
3000.20 [Reserved]


Sec.  3000.5  Post-employment restrictions.

    All former employees of the Postal Regulatory Commission 
(Commission) are subject to the following restrictions on appearance 
and practice before the Commission on behalf of any participant, 
including the United States Postal Service (Postal Service):
    (a) No former employee of the Commission may practice or act as an 
attorney, expert witness, or representative in connection with any 
proceeding or matter before the Commission that the former employee has 
handled, advised, or participated in the consideration of while in the 
service of the Commission.
    (b) No former employee of the Commission may within 1 year after 
his or her employment has ceased, practice before or act as an 
attorney, expert witness, or representative in connection with any 
proceeding or matter before the Commission that was under the official 
responsibility of such individual, as defined in 18 U.S.C. 202(b), 
while in the service of the Commission.


Sec.  3000.10   Additional required notification of disqualification 
when seeking employment.

    (a) An employee that seeks employment with the Postal Service must 
provide written notice to the Designated Agency Ethics Official (DAEO) 
consistent with Sec.  5601.103(a) of title 5.
    (b) An employee may withdraw written notice under paragraph (a) of 
this section consistent with Sec.  5601.103(b) of title 5.


Sec.  3000.15   Additional limitation on acceptance of anything of 
value.

    Regardless of Sec.  2635.203(b)(7) of title 5, a Commission 
employee may not accept a gift from the Postal Service, unless another 
exception or exclusion to Sec.  2635.203 of title 5 applies or a waiver 
is granted by the DAEO.


Sec.  3000.20   [Reserved]

[FR Doc. 2017-10636 Filed 5-23-17; 8:45 am]
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