[Federal Register Volume 85, Number 44 (Thursday, March 5, 2020)]
[Rules and Regulations]
[Pages 12859-12860]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03058]



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 Rules and Regulations
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 This section of the FEDERAL REGISTER contains regulatory documents 
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  Federal Register / Vol. 85, No. 44 / Thursday, March 5, 2020 / Rules 
and Regulations  

[[Page 12859]]



DEPARTMENT OF AGRICULTURE

Office of the Secretary

5 CFR Part 8301

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


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

AGENCY: Department of Agriculture, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

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 final rule for attorneys of USDA's Office 
of the General Counsel (OGC). The final rule supplements the Standards 
of Ethical Conduct for Employees of the Executive Branch (OGE 
Standards) issued by OGE by revising the Supplemental Standards of 
Ethical Conduct for Employees of the Department of Agriculture (USDA 
Supplemental Ethics Regulations) concerning the outside practice of law 
by USDA OGC attorneys. To more fully address ethical issues unique to 
OGC attorneys, the final rule imposes additional restrictions on the 
outside practice of law, subject to certain exceptions.

DATES: This final rule is effective March 5, 2020.

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 November 8, 2019, USDA, with OGE's concurrence, published a 
proposed rule in the Federal Register, 84 FR 60346, proposing to amend 
the USDA Supplemental Ethics Regulations as they relate to OGC 
attorneys who engage in the outside practice of law. The proposed rule 
provided a 45-day comment period, which ended on December 23, 2019. 
During the comment period USDA received two comments from members of 
the public.

Analysis of Comments Received

    USDA received two sets of comments from members of the public 
pertaining to the proposed amendment of USDA Supplemental Ethics 
Regulations as they relate to OGC attorneys that engage in the outside 
practice of law. Neither of the comments referred specifically to the 
proposed revision of the USDA Supplemental Ethics Regulations as they 
relate to OGC attorneys who seek to engage in the outside practice of 
law. Instead each comment addressed unrelated general topics. The first 
comment recommended that USDA conduct greater environmental 
protection.\1\ The second comment recommended that USDA more fully 
place an array of reports and other documents concerning the Animal 
Welfare Act and the Horse Protection Act in a public, searchable public 
database.\2\ Neither comment addressed the substance of or suggested 
changes to the proposed rule. The proposed rule clarifies and 
strengthens the ethical requirements for attorneys in the Department's 
Office of the General Counsel regarding the outside practice of law. 
The proposed rule also encourages OGC attorneys to consider voluntary 
pro bono publico legal service, provided that such pro bono legal work 
would be compliant with the legal and ethical requirements provided in 
the proposed rule. Finally, the proposed rule updates and improves the 
procedures and standards related to OGC attorneys seeking to engage in 
the outside practice of law and uncompensated pro bono publico legal 
services to benefit the public, and will enhance adherence to ethics 
conduct related to the outside practice of law. As noted above, the two 
comments addressed wholly unrelated topics and did not address the 
substance of the proposed rule. Therefore, for the reasons detailed in 
the preamble of the previously issued Notice of Proposed Rulemaking (at 
84 FR 60346), USDA, with the concurrence of OGE, is issuing this rule 
in final without changes, besides the typographical edit noted below.
---------------------------------------------------------------------------

    \1\ Comment received from Jean Publieee, November 8, 2019. For 
transparency, this comment was posted, in full, to the public 
Regulations.gov page associated with this docket.
    \2\ Comment received from Jacqui Marcella Urban, December 21, 
2019. For transparency, this comment was posted, in full, to the 
public Regulations.gov page associated with this docket.
---------------------------------------------------------------------------

    During the review of the proposed rule, USDA noted an inadvertent 
typographical error in Section 8301.105(c)(iii)(B). Specifically, the 
words ``exception'' and ``does'' in that provision should read 
``exceptions'' and ``do.'' The revised sentence now reads: ``The 
exceptions to 18 U.S.C. 205 described in paragraphs (c)(ii)(B) and 
(c)(ii)(C) do 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.'' This grammatical edit 
does not alter the substance or meaning of the proposed rule.

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.).

[[Page 12860]]

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, in 
concurrence with OGE, is amending 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 Sec.  8301.105 is revised to read as 
follows:

    Authority: 5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government 
Act of 1978); E.O. 12674, 54 FR 15159 (April 12, 1989); 3 CFR, 1989 
Comp., p. 215, as modified by E.O. 12731, 55 FR 42547 (October 17, 
1990); 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.403, 2635.502 
and 2635.803.

0
2. Revise Sec.  [thinsp]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)(1) Prohibited outside practice of law applicable to attorneys 
in the Office of the General Counsel. 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 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 18 U.S.C. 205(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 exceptions to 18 U.S.C. 205 described in paragraphs 
(c)(2)(ii) and (c)(2)(iii) of this section do 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.
Emory A. Rounds, III,
Director, U.S. Office of Government Ethics.
[FR Doc. 2020-03058 Filed 3-4-20; 8:45 am]
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