[Federal Register Volume 85, Number 143 (Friday, July 24, 2020)]
[Proposed Rules]
[Pages 44789-44790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14932]


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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. 85, No. 143 / Friday, July 24, 2020 / 
Proposed Rules  

[[Page 44789]]


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 OFFICE OF SPECIAL COUNSEL

5 CFR Part 10201

RIN 3209-AA53


Supplemental Standards of Ethical Conduct for Employees of the 
U.S. Office of Special Counsel

AGENCY: U.S. Office of Special Counsel (OSC).

ACTION: Proposed rule.

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SUMMARY: The U.S. Office of Special Counsel, with the concurrence of 
the U.S. Office of Government Ethics (OGE), proposes a regulation for 
OSC employees that supplements the executive branch Standards of 
Ethical Conduct issued by OGE. The supplemental regulation requires OSC 
employees to seek prior approval before engaging in outside employment 
or activity.

DATES: Interested parties should submit comments to OSC at one of the 
addresses shown below on or before August 24, 2020 to be considered in 
the formulation of a final rule.

ADDRESSES: You may submit written comments to OSC on the proposed rule 
by any of the following methods:
     Email: [email protected]. Include the Regulatory 
Identification Number (RIN) 3209-AA53 in the subject line of the 
message.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions on the portal for submitting comments.
    Instructions: All submissions must include the agency's name 
``OSC'' and the RIN 3209-AA53. All comments received may be posted 
without change to www.osc.gov, including any personal information 
provided.

FOR FURTHER INFORMATION CONTACT: Heidi R. Morrison, Alternate 
Designated Agency Ethics Official, U.S. Office of Special Counsel, by 
email at [email protected] or by telephone at (202) 804-7000.

SUPPLEMENTARY INFORMATION:

I. Background

    On August 7, 1992, OGE published the OGE Standards of Ethical 
Conduct for Employees of the Executive Branch (OGE Standards). See 57 
FR 35006-35067, as corrected at 57 FR 48557, 57 FR 52483, and 60 FR 
51167, with additional grace period extensions for certain existing 
provisions at 59 FR 4779-4780, 60 FR 6390-6391, and 60 FR 66857-66858. 
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. Section 2635.105 of the OGE Standards 
authorizes an agency, with the concurrence of OGE, to adopt agency 
specific supplemental regulations that are necessary to properly 
implement its ethics program. OSC, with OGE's concurrence, has 
determined that the following supplemental rule is necessary and 
appropriate for successful implementation of OSC's ethics program.

II. Analysis of the Proposed Regulations

Section 10201.101 General

    Section 10201.101 explains that these regulations apply to OSC 
employees and supplement the OGE Standards.

Section 10201.102 Prior Approval for Outside Employment or Activity

    OSC has determined that it is necessary for the purpose of 
administering its ethics program to require its employees to obtain 
approval before engaging in outside employment or activities. The 
approval requirement will help ensure that potential ethical problems 
are resolved before employees begin outside employment or activities 
that could involve a violation of applicable statutes and OGE Standards 
and to remind OSC attorneys to consult their applicable state bar rules 
of professional conduct.
    Section 10201.102(a) requires an OSC employee to obtain written 
approval from the Designated Agency Ethics Official (DAEO) or the 
Alternate Designated Agency Ethics Official (ADAEO) before engaging in 
any outside employment or activity.
    Section 10201.102(b) defines outside ``employment'' or ``activity'' 
for purposes of this regulation to cover any form of non-Federal 
employment or business relationship involving the provision of 
services, whether for compensation or not for compensation. It 
includes, but is not limited to, serving as an officer, director, 
employee, agent, attorney, consultant, contractor, general partner, 
trustee, or teacher. The definition 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 provision of 
professional services or advice, or are for compensation other than 
reimbursement of expenses. The definition of ``employment'' and 
``activity'' does not cover outside speaking or writing activities done 
on either an uncompensated or compensated basis.
    A note following paragraph (b) of Sec.  10201.102 highlights that 
employees who wish to engage in speaking or writing in a personal 
capacity are subject to a number of Federal ethics laws, and although 
not required to seek prior approval before engaging in those activities 
under the proposed rule, are encouraged to seek guidance from an agency 
ethics official. The note also reminds OSC attorneys that they are 
responsible for ensuring their outside conduct comports with the rules 
of professional conduct imposed by their state bar association.
    Section 10201.102(c) provides that OSC's DAEO or ADAEO will grant 
approval when the outside employment or activity is not expected to 
involve conduct prohibited by statute or Federal regulation, including 
5 CFR part 2635.
    Section 10201.102(d) provides that OSC's DAEO or ADAEO may issue 
instructions governing the submission of requests for approval of 
outside employment or activity, which may exempt categories of 
employment or activity from the prior approval requirement of this 
section based on a determination that employment or activity within 
those categories would generally be approved and is not likely to 
involve conduct prohibited by statute or Federal regulation, including 
5 CFR part 2635.

III. Matters of Regulatory Procedure

Administrative Procedure Act (APA)

    This action is taken under the Special Counsel's authority at 5 
U.S.C. 1212(e) to publish regulations in the Federal Register.

[[Page 44790]]

Executive Order 12866 and Executive Order 13771

    This rule is not a significant rule for purposes of Executive Order 
12866 and has not been reviewed by the Office of Management and Budget. 
This rule is not subject to the requirements of Executive Order 13771 
because this rule results in no more than de minimis costs.

Regulatory Flexibility Act (RFA)

    As required by the RFA, OSC certifies that this regulation will not 
have a significant economic impact on a substantial number of small 
entities.

National Environmental Policy Act (NEPA)

    This rule will have no physical impact upon the environment and 
therefore will not require any further review under the NEPA.

Congressional Review Act (CRA)

    This rule relates to agency personnel and does not substantially 
affect the rights or obligations of non-agency parties. Therefore, it 
does not meet the definition of a ``rule'' at 5 U.S.C. 804 and is not 
subject to the procedures of the CRA.

Paperwork Reduction Act (PRA)

    OSC has determined that the PRA does not apply because this 
regulation does not contain any information collection requirements 
that require the approval of the Office of Management and Budget.

List of Subjects in 5 CFR Part 10201

    Conflict of interests, Government employees.

    Approved: June 25, 2020.
Travis G. Millsaps,
Deputy Special Counsel for Public Policy, U.S. Office of Special 
Counsel.
Emory Rounds,
Director, U.S. Office of Government Ethics.


0
For the reasons set forth in the preamble, the U.S. Office of Special 
Counsel, with the concurrence of the U.S. Office of Government Ethics, 
is proposing to amend title 5 of the Code of Federal Regulations by 
adding a new chapter CII, consisting of part 10201, to read as follows:

TITLE 5--ADMINISTRATIVE PERSONNEL

CHAPTER CII--U.S. OFFICE OF SPECIAL COUNSEL

PART 10201--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES 
OF THE U.S. OFFICE OF SPECIAL COUNSEL

Sec.
10201.101 General.
10201.102 Prior approval for outside employment or activity.

    Authority:  5 U.S.C. 1212(e); 5 U.S.C. 7301; 5 U.S.C. App. 
(Ethics in Government Act of 1978); Exec. Order No. 12674, 54 FR 
15159, 3 CFR, 1989 Comp., p. 215, as modified by Exec. Order No. 
12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 
2635.803.


Sec.  10201.101   General.

    (a) Purpose. In accordance with 5 CFR 2635.105, the regulations in 
this part apply to employees of the U.S. Office of Special Counsel 
(OSC) and supplement the Standards of Ethical Conduct for Employees of 
the Executive Branch at 5 CFR part 2635.
    (b) Other regulations, guidance, and procedures. In addition to the 
standards in 5 CFR part 2635 and this part, all OSC employees are 
required to comply with implementing guidance and procedures issued by 
OSC in accordance with 5 CFR 2635.105(c). OSC employees are also 
subject to all other government-wide regulations concerning executive 
branch ethics including without limitation, financial disclosure 
regulations contained in 5 CFR part 2634, regulations concerning 
financial interests contained in 5 CFR part 2640, post-employment 
conflict of interest restrictions contained in 5 CFR part 2641, outside 
earned income limitations and employment and affiliation restrictions 
applicable to certain noncareer employees contained in 5 CFR part 2636, 
and the regulations concerning executive branch employee 
responsibilities and conduct contained in 5 CFR part 735.


Sec.  10201.102   Prior approval for outside employment or activity.

    (a) General requirement. Before engaging in any outside employment 
or activity, whether or not for compensation, an OSC employee must 
obtain written approval from the Designated Agency Ethics Official 
(DAEO) or the Alternate Designated Agency Ethics Official (ADAEO), 
except to the extent that OSC has issued an internal instruction 
pursuant to paragraph (d) of this section exempting certain employment 
or activities from this requirement.

    Note 1 to paragraph (a).  18 U.S.C. 203(d) and 205(e) require 
special approval for certain representational activities in claims 
against the Federal Government and other matters affecting the 
interests of the Government.

    (b) Definition of ``outside employment or activity''. For purposes 
of this section, ``outside employment or activity'' means any form of 
non-Federal employment or business relationship involving the provision 
of services by the employee, whether for compensation or not for 
compensation. It includes, but is not limited to, serving as an 
officer, director, employee, agent, attorney, consultant, contractor, 
general partner, trustee, or teacher. The definition 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 
provision of professional services or advice, or are for compensation 
other than reimbursement of expenses.

    Note 2 to paragraph (b).  Employees who wish to engage in 
compensated speaking or writing in a personal capacity are subject 
to, among other things, the provisions of 5 CFR 2635.703 (concerning 
use of nonpublic information) and 5 CFR 2635.807 (concerning receipt 
of compensation for teaching, speaking, and writing related to one's 
duties), and are encouraged to seek guidance from an agency ethics 
official before engaging in such activities. Certain covered non-
career employees are also subject to further restrictions on receipt 
of outside compensation pursuant to section 502 of the Ethics in 
Government Act (5 U.S.C. app.). In addition, OSC attorneys should 
consult their applicable state bar rules of professional conduct.

    (c) Standard for approval. Approval shall be granted by the DAEO or 
ADAEO upon a determination that the outside employment or activity is 
not expected to involve conduct prohibited by statute or Federal 
regulation, including 5 CFR part 2635.
    (d) Implementation guidance. The DAEO or ADAEO may issue internal 
instructions governing the submission of requests for approval of 
outside employment or activity. The instructions may exempt categories 
of employment or activities from the prior approval requirement of this 
section based on a determination that those categories generally would 
be approved and are not likely to involve prohibited conduct or create 
an appearance of lack of impartiality.

[FR Doc. 2020-14932 Filed 7-23-20; 8:45 am]
BILLING CODE 7405-01-P