[Federal Register Volume 84, Number 217 (Friday, November 8, 2019)]
[Proposed Rules]
[Pages 60346-60349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24082]


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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. 84, No. 217 / Friday, November 8, 2019 / 
Proposed Rules  

[[Page 60346]]



DEPARTMENT OF AGRICULTURE

Office of the Secretary

5 CFR Part 8301

[Docket No. USDA-2019-0005]
RIN 3209-AA48


Supplemental Standards of Ethical Conduct for Employees of the 
Department of Agriculture

AGENCY: Department of Agriculture, USDA.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Department of Agriculture (``USDA'' or 
``Department''), with the concurrence of the U.S. Office of Government 
Ethics (OGE), is issuing this proposed rule for attorneys of USDA's 
Office of the General Counsel (OGC). This proposed rule further 
supplements the Standards of Ethical Conduct for Employees of the 
Executive Branch (OGE Standards) issued by OGE by revising USDA's 
existing supplemental regulation concerning the outside practice of law 
by USDA OGC attorneys. The current regulation requires OGC attorneys to 
obtain written approval before engaging in the outside practice of law. 
To more fully address ethical issues unique to OGC attorneys, the 
proposed revision retains this prior approval requirement and imposes 
additional restrictions on the outside practice of law, subject to 
certain exceptions.

DATES: The comment period will be open for 45 calendar days. Written 
comments are invited and must be received on or before December 23, 
2019.

ADDRESSES: You may submit comments, identified by Docket No. USDA-2019-
0005 or the Regulatory Information Number (RIN) 3209-AA48, by any of 
the following methods:
     Electronic: http://www.regulations.gov. Follow the 
instructions for submitting comments.
     Email: [email protected]. Include Docket 
No. USDA-2019-0005 or RIN number 3209-AA48 in the subject line of the 
message.
     Mail, Hand Delivery, or Courier: Office of the Executive 
Secretary, USDA Whitten Federal Building Room 116-A, 1400 Independence 
Avenue SW, Washington, DC 20250.
    Instructions: All submissions must include the agency name and 
docket number RIN number for this rulemaking. In general, all comments 
received will be posted without change to http://www.regulations.gov. 
In addition, comments will be available for public inspection and 
copying at Room 347-W, J.L. Whitten Federal Building, 1400 Independence 
Avenue SW, Washington, DC 20250, on official business days between the 
hours of 10 a.m. and 5 p.m. Eastern Time. You can make an appointment 
to inspect the documents by telephoning (202) 720-2251.
    All comments, including attachments and other supporting materials, 
will become part of the public record and subject to public disclosure. 
Sensitive personal information, such as account numbers or social 
security numbers, should not be included. Comments will not be edited 
to remove any identifying or contact information.

FOR FURTHER INFORMATION CONTACT: Stuart Bender, Director of the Office 
of Ethics, U.S. Department of Agriculture, at (202) 720-2251, 
[email protected].

SUPPLEMENTARY INFORMATION: 

Background

    On August 7, 1992, OGE published the OGE Standards. See 57 FR 
35006-35067, as corrected at 57 FR 48557, 57 FR 52483, and 60 FR 51167. 
The OGE Standards, codified at 5 CFR part 2635, effective February 3, 
1993, established uniform standards of ethical conduct that apply to 
all executive branch personnel.
    Pursuant to 5 CFR 2635.105, executive branch agencies are 
authorized to publish, with the concurrence of OGE, agency-specific 
supplemental regulations that are deemed necessary to properly 
implement their respective ethics programs. On March 24, 2000, USDA, 
with OGE's concurrence, published in the Federal Register an interim 
final rule to establish the USDA Supplemental Ethics Regulations. 65 FR 
15825. The regulation was finalized on October 2, 2000 (65 FR 58635). 
USDA, with OGE's concurrence, now proposes to amend the USDA 
Supplemental Ethics Regulations as they relate to OGC attorneys that 
engage in the outside practice of law.

Summary of Proposed Changes

Section 8301.105 Additional Rules for Attorneys in the Office of the 
General Counsel

Summary

    USDA can, and does, take actions every day that affect enterprises 
as diverse as farm and ranch production, food safety inspections and 
the grading of commodities, environmental protection and forest land 
use, import and export of agricultural products, grocery retailers and 
supplemental nutrition assistance programs, the national school lunch 
program, soil conservation, wildfire control, rural development and 
infrastructure rebuilding, and promoting the expansion of foreign 
markets for agricultural commodity exports. In view of the 
pervasiveness and variety of USDA-regulated and USDA-affected 
businesses and organizations in the United States, there is a 
significant risk that OGC attorneys engaged in the outside practice of 
law may increasingly confront actual or apparent conflicts of interest. 
USDA therefore proposes to update Sec.  8301.105, which currently 
requires prior approval for the outside practice of law, to include 
certain additional restrictions and accompanying exceptions.
    Because OGC engages in a wide range of litigation, enforcement, 
transactional, advisory and regulatory functions across the Department 
and the nation's agriculture sector, strengthening the requirements for 
compliance with ethical restrictions is necessary to ensure that a 
reasonable person will not question the integrity of the OGC attorneys 
who play an essential role in the Department's programs and operations. 
OGC would be hindered in fulfilling its mission if members of the 
public did not have confidence in the ability of its attorneys to act 
impartially while performing their official duties.

Analysis of the Regulation

    Paragraph (a) requires OGC attorneys to obtain prior written 
approval before

[[Page 60347]]

engaging in the ``outside practice of law,'' as it is defined in that 
paragraph. OGC attorneys must obtain the approval in accordance with 
the existing procedures described in Sec.  8301.102(c) and the standard 
for approval in paragraph (b).
    Paragraph (b) sets out the standard to be applied in reviewing 
requests for prior approval for the outside practice of law. Approval 
will be granted unless it is determined that the outside practice of 
law is expected to involve conduct prohibited by statute, Federal 
regulations, including the OGE Standards, or paragraph (c) of this 
supplemental regulation. This standard is consistent with the standard 
for approval in Sec.  8301.102(d).
    Paragraph (c)(1) prohibits OGC attorneys from engaging in the 
outside practice of law where the activity, in fact or in appearance, 
may require the assertion of a legal position that conflicts with the 
interests of the Department. OGC attorneys are also prohibited from 
engaging in any outside law practice that might require the 
interpretation of a statute, regulation, or rule administered or issued 
by the Department. Attorneys in OGC are also prohibited from engaging 
in any outside practice of law where a supervisory attorney determines 
that such outside practice of law would conflict with the employee's 
official duties or create the appearance of a loss of the attorney's 
impartiality as prohibited by 5 CFR 2635.802. Further, as prohibited by 
18 U.S.C. 205, OGC attorneys may not act as an agent or attorney in any 
matter in which the U.S. Government is a party or has a direct and 
substantial interest. Paragraph (c)(2) enunciates certain exceptions 
from the prohibitions listed in paragraph (c)(1). Paragraph (c)(3) 
outlines the procedures for the use of those exceptions.

Asserting Contrary Legal Positions

    Paragraph (c)(1)(i) is consistent with the rules of professional 
conduct governing the attorney-client relationship. Precluding any 
outside law practice that may require the assertion of legal positions 
adverse to the Department derives from the unique and sensitive 
relationship between an attorney and a client, which for OGC attorneys 
is USDA.
    Moreover, the Department has a legitimate interest in maintaining 
the consistency and credibility of the Department's positions before 
the Federal courts. For the most part, the representational bans 
contained in 18 U.S.C. 203 and 205 would preclude outside practice by 
OGC attorneys in the Federal courts because nondiversity cases within 
Federal court jurisdiction generally involve controversies in which the 
United States is a party or has a direct and substantial interest. 
However, cases may arise involving the interpretation or application of 
Federal statutes or regulations that do not necessarily implicate the 
direct and substantial interests of the United States.
    As a consequence, OGC attorneys representing private clients might 
appear in front of the same judges before whom they appear in their 
official capacities and argue different interpretations of Federal 
statutes or regulations. Depending upon the visibility of the issues 
and any attendant controversy, asserting conflicting legal positions 
may diminish the persuasiveness of the advocate, erode judicial 
confidence in the integrity of the Department's attorneys, and 
undermine the credibility of both clients. Section 8301.105(c)(1)(i) is 
intended, therefore, to safeguard the interests of the Department as 
the primary client to which the attorney employee owes a professional 
responsibility.
    Concededly, while representing a private client, an OGC attorney 
might take legal positions on a myriad of issues not directly related 
to Federal interests or agency programs--such as jurisdiction, service 
of process, standing, evidence, or statutory construction--that differ 
from those the attorney might have asserted while acting in a 
Government capacity. The section is not intended to proscribe instances 
of outside practice merely because such issues would have been handled 
differently if the matters arose in the prosecution or defense of an 
agency case. Generally, advocacy with respect to ancillary issues 
unrelated to substantive legal positions or agency administered 
statutes would be unlikely to have an impact sufficiently adverse to 
agency interest to be proscribed by the regulation.

Interpreting Department of Agriculture Administered Statutes

    Paragraph (c)(1)(ii) is intended to effectuate the prohibition on 
the use of public office for private gain, to preclude inconsistent 
legal positions on core issues affecting the interests of the 
Department, and to protect the public interest by preventing any public 
perception that an attorney's employment with the Department signifies 
extraordinary competency on agency related issues, or that an OGC 
attorney's interpretation implicitly is sanctioned or approved by the 
Department. For the most part, outside practice involving agency-
administered statutes would be precluded as a conflicting activity. If 
the subject matter of the proposed representation and the assigned 
duties of the attorney correlate, the outside activity potentially 
would require, under the standards set forth in 5 CFR 2635.402 and 
2635.502, the employee's disqualification from matters so central or 
critical to the performance of the employee's official duties that the 
employee's ability to perform the duties of the employee's position 
would be materially impaired. Similarly, representation on matters 
involving the application of agency statutes may implicate direct and 
substantial interests of the United States, thus contravening the 
representational bans in 18 U.S.C. 203 and 205.
    Although the regulation to some extent covers areas that are 
subject to existing prohibitions, paragraph (c)(1)(ii) reaches 
situations not specifically addressed in the existing standards. Absent 
the prohibition contained in this section, an OGC attorney principally 
engaged in advising a USDA Mission Area or Secretarial Staff Office 
conceivably could obtain outside employment advising, as opposed to 
representing, a private client on areas of agency law to which the 
attorney is not assigned. In these circumstances, there is considerable 
risk that the outside legal employment position held by the individual 
may convey an impression of authoritativeness or access to non-public 
information or agency experts that may not necessarily be warranted. 
Moreover, private clients, and those aware of the OGC attorney's 
involvement, may assume incorrectly that the attorney's interpretation 
has been vetted through the Department and is effectively a 
Departmental interpretation as well. Rendering legal services that may 
require the interpretation of any statute, regulation, or rule 
administered or issued by the Department creates an appearance that the 
employee has used the employee's official position to obtain an outside 
business opportunity. Further, if counsel were engaged in the outside 
law practice that involved Department statutes, the potential risk for 
asserting legal positions adverse to the interests of the Department 
would be heightened. Similarly, as established at 5 CFR 2635.802(b), it 
would undermine the effectiveness of the attorney and the attorney's 
duty of loyalty to the Department in those situations where a 
supervisory attorney determined that the outside practice of law would 
create

[[Page 60348]]

a conflict of interest, or the appearance of a loss of impartiality, 
requiring the attorney's disqualification from matters central to the 
attorney's performance of his official duties. In such situations, the 
attorney's duty of loyalty to the Department as the attorney's primary 
client must take first priority.

Acting as an Agent

    Paragraph (c)(1)(iii) highlights the proscription in 18 U.S.C. 205 
barring employees from acting as an agent or attorney in any matter in 
which the United States Government is a party or where the Government 
has a direct and substantial interest.

Exceptions

    Paragraph (c)(2) provides exceptions to the prohibitions set forth 
in paragraph (c)(1). Consistent with the exceptions to the 
representational bans contained in 18 U.S.C. 203 and 205, nothing in 
this regulation precludes representation, if approved in advance by the 
appropriate official or supervisor, that is: (1) Rendered, with or 
without compensation, to specified relatives or an estate for which an 
employee serves as a fiduciary; or (2) provided, without compensation, 
to an employee subject to disciplinary, loyalty, or other personnel 
administration proceedings; or (3) rendered, without compensation to a 
voluntary employee nonprofit organization or group (such as child care 
centers, recreational associations, professional organizations, credit 
unions or other similar groups) before the U.S. Government under 
certain circumstances (18 U.S.C. 205 restricts employees from 
representing an employee organization or group in claims against the 
Government, in seeking grants, contracts or funds from the Government, 
or in a judicial or administrative proceeding where the organization or 
group is a party). Moreover, paragraph (c)(2)(iv) makes explicit that 
neither the ban on asserting contrary positions nor the prohibition on 
interpreting agency statutes is intended to proscribe the giving of 
testimony under oath. In order to take advantage of the exceptions to 
18 U.S.C. 203 and 205 for representing family members or an estate, 
both statutes expressly require the approval of the Government official 
responsible for the employee's appointment. See 18 U.S.C. 203(d) and 
205(e). To take advantage of the other exceptions set forth in 
paragraph (c)(2), the employee's supervisor must determine that the 
representations are not ``inconsistent with the faithful performance of 
[the employee's] duties.'' See 18 U.S.C. 205(d). These approval 
procedures are detailed in paragraph (c)(3).

Pro Bono

    Paragraph (d) permits attorneys in OGC, subject to the restrictions 
in paragraph (c)(1), to provide outside pro bono legal services to 
organizations or individuals through a non-profit organization, without 
obtaining prior written approval. For example, Department attorneys may 
provide legal services pro bono publico in areas such as drafting wills 
or powers of attorney, assisting the preparation of domestic violence 
protective orders, and landlord-tenant disputes. These pro bono 
activities can generally be undertaken without detriment to the 
Department's interests, provided that the employee adheres to the 
limitations of this rule. The Department encourages such volunteer 
legal activities, if not inconsistent with this supplemental regulation 
and the laws and regulations described above. Attorneys in the OGC who 
have questions about whether a specific pro bono legal service would 
comply with the limitations of this rule are encouraged to seek advance 
guidance from USDA's Office of Ethics.

Matters of Regulatory Procedure

Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996 (the 
RFA), requires each agency to consider the potential impact of its 
regulations on small entities, including small businesses, small 
governmental units, and small not-for-profit organizations, unless the 
head of the agency certifies that the rules will not have a significant 
economic impact on a substantial number of small entities. The 
Secretary of Agriculture so certifies. The rule does not impose any 
obligations or standards of conduct for purposes of analysis under the 
RFA, and it therefore does not give rise to a regulatory compliance 
burden for small entities.

Paperwork Reduction Act

    The Department has determined that this rule does not impose any 
new recordkeeping, reporting, or disclosure requirements on members of 
the public that would be collections of information requiring approval 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 5 CFR Part 8301

    Conflict of interests, Government employees.

Authority and Issuance

    For the reasons set forth in the preamble, the Department is 
proposing to amend 5 CFR part 8301 as follows:

PART 8301--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES 
OF THE DEPARTMENT OF AGRICULTURE

0
1. The authority citation for part 8301 is revised to read as follows:

    Authority: 5 U.S.C. 7301; 5 U.S.C. App.; 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, 2635.502 
and 2635.803.

0
2. Revise Sec.  8301.105 to read as follows:


Sec.  8301.105  Additional rules for attorneys in the Office of the 
General Counsel.

    (a) Additional rules for attorneys in the Office of the General 
Counsel regarding the outside practice of law. Any attorney serving 
within the Office of the General Counsel shall obtain written approval, 
in accordance with the procedures set forth in Sec.  8301.102(c) and 
the standard for approval set forth in paragraph (b) of this section, 
before engaging in the outside practice of law, whether compensated or 
not. For purposes of this section the ``outside practice of law'' means 
those activities requiring professional licensure by a state bar as an 
attorney and include, but are not limited to, providing legal advice to 
a client, drafting legal documents, and representing clients in legal 
negotiations or litigation.
    (b) Standard for approval. Approval shall be granted by the agency 
designee unless it is determined that the outside practice of law is 
expected to involve conduct prohibited by statute or Federal 
regulation, including 5 CFR part 2635, or paragraph (c) of this 
section.
    (c) Prohibited outside practice of law applicable to attorneys in 
the Office of the General Counsel--(1) General prohibitions. An 
employee who serves as an attorney within the Office of the General 
Counsel shall not engage in any outside practice of law that might 
require the attorney to:
    (i) Assert a legal position that is or appears to be in conflict 
with the interests of the Department of Agriculture, the client to 
which the attorney owes a professional responsibility; or
    (ii) Interpret any statute, regulation, or rule administered or 
issued by the Department of Agriculture, or where a supervisory 
attorney determines that the outside practice of law would conflict 
with the employee's official duties or create the appearance of a loss 
of the

[[Page 60349]]

attorney's impartiality, as prohibited by 5 CFR 2635.802; or
    (iii) Act as an agent or attorney in any matter in which the U.S. 
Government is a party or has a direct and substantial interest, as 
prohibited by 18 U.S.C. 205.
    (2) Exceptions. Nothing in paragraph (c)(1) of this section 
prevents an attorney in the Office of the General Counsel from:
    (i) Acting, with or without compensation, as an agent or attorney 
for, or otherwise representing, the employee's parents, spouse, child, 
or any other person for whom, or for any estate for which, the employee 
is serving as guardian, executor, administrator, trustee, or other 
personal fiduciary to the extent permitted by 18 U.S.C. 203(d) and 
205(e), or from providing advice or counsel to such persons or estates; 
or
    (ii) Acting, without compensation, as an agent or attorney for, or 
otherwise representing, any person who is the subject of disciplinary, 
loyalty, or other personnel administration proceedings in connection 
with those proceedings, or from providing uncompensated advice and 
counsel to such person to the extent permitted by 18 U.S.C. 205; or
    (iii) Acting, without compensation, as an agent or attorney for, or 
otherwise representing any cooperative, voluntary, professional, 
recreational, or similar organization or group not established or 
operated for profit, if a majority of the organization's or group's 
members are current employees of the United States or the District of 
Columbia, or their spouses or dependent children. As limited by 18 
U.S.C. 205(d), this exception is not permitted for any representation 
with respect to a matter which involves prosecuting a claim against the 
United States under 18 U.S.C. 205(a)(1) or (b)(1), or involves a 
judicial or administrative proceeding where the organization or group 
is a party, or involves a grant, contract, or other agreement providing 
for the disbursement of Federal funds to the organization or group; or
    (iv) Giving testimony under oath or from making statements required 
to be made under penalty for perjury or contempt.
    (3) Specific approval procedures for paragraph (c)(2) of this 
section. (i) The exceptions to 18 U.S.C. 203 and 205 described in 
paragraph (c)(2)(i) of this section do not apply unless the employee 
obtained the prior approval of the Government official responsible for 
the appointment of the employee to a Federal position.
    (ii) The exception to 18 U.S.C. 205 described in paragraphs 
(c)(2)(ii) and (iii) of this section does not apply unless the employee 
has obtained the prior approval of a supervisory official who has 
authority to determine whether the employee's proposed representation 
is consistent with the faithful performance of the employee's duties.
    (d) Pro bono activity. Subject to compliance with paragraph (c) of 
this section, attorneys within the Office of the General Counsel are 
permitted to provide outside pro bono legal services (without 
compensation other than reimbursement of expenses) to organizations or 
individuals through a non-profit organization, without obtaining prior 
written approval in accordance with the procedures set forth in Sec.  
8301.102(c).

Stephen Alexander Vaden,
General Counsel, U.S. Department of Agriculture.

    In concurrence:

Emory A. Rounds, III,
Director, U.S. Office of Government Ethics.
[FR Doc. 2019-24082 Filed 11-7-19; 8:45 am]
 BILLING CODE 3410-90-P