[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]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
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]
BILLING CODE 3410-18-P