Supplemental Standards of Ethical Conduct for Employees of the Department of Agriculture, 60346-60349 [2019-24082]

Download as PDF 60346 Proposed Rules Federal Register Vol. 84, No. 217 Friday, November 8, 2019 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. 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 Department of Agriculture, USDA. ACTION: Notice of proposed rulemaking. AGENCY: 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. SUMMARY: The comment period will be open for 45 calendar days. Written comments are invited and must be received on or before December 23, 2019. khammond on DSKJM1Z7X2PROD with PROPOSALS DATES: 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. ADDRESSES: VerDate Sep<11>2014 16:12 Nov 07, 2019 Jkt 250001 • Email: FederalRegisterComments@ usda.gov. 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, Stuart.Bender@ usda.gov. 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 PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 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 § 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 E:\FR\FM\08NOP1.SGM 08NOP1 Federal Register / Vol. 84, No. 217 / Friday, November 8, 2019 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS 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 § 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 § 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 VerDate Sep<11>2014 16:12 Nov 07, 2019 Jkt 250001 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 PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 60347 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 nonpublic 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 E:\FR\FM\08NOP1.SGM 08NOP1 60348 Federal Register / Vol. 84, No. 217 / Friday, November 8, 2019 / Proposed Rules 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. khammond on DSKJM1Z7X2PROD with PROPOSALS 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. VerDate Sep<11>2014 16:12 Nov 07, 2019 Jkt 250001 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. PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 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 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. 2. Revise § 8301.105 to read as follows: ■ § 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 § 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 E:\FR\FM\08NOP1.SGM 08NOP1 khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 84, No. 217 / Friday, November 8, 2019 / Proposed Rules 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 VerDate Sep<11>2014 16:12 Nov 07, 2019 Jkt 250001 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 § 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 DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA–2019–0882; Product Identifier 2018–SW–113–AD] RIN 2120–AA64 Airworthiness Directives; Airbus Helicopters Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). AGENCY: The FAA proposes to adopt a new airworthiness directive (AD) for Airbus Helicopters Model AS332C, AS332C1, AS332L, and AS332L1 helicopters. This proposed AD would require inspecting the attachment screws of each main gearbox (MGB) suspension bar rear attachment fitting, and depending on the outcome, applying a sealing compound, performing further inspections, and replacing affected parts. This proposed AD is prompted by reports of an elongated attachment screw and loss of tightening torque of the nut. The actions of this proposed AD are intended to address an unsafe condition on these products. DATES: The FAA must receive comments on this proposed AD by January 7, 2020. ADDRESSES: You may send comments by any of the following methods: SUMMARY: PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 60349 • Federal eRulemaking Docket: Go to https://www.regulations.gov. Follow the online instructions for sending your comments electronically. • Fax: 202–493–2251. • Mail: Send comments to the U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE, Washington, DC 20590–0001. • Hand Delivery: Deliver to the ‘‘Mail’’ address between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the internet at https:// www.regulations.gov by searching for and locating Docket No. FAA–2019– 0882; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the European Aviation Safety Agency (EASA) AD, the economic evaluation, any comments received, and other information. The street address for Docket Operations is listed above. Comments will be available in the AD docket shortly after receipt. For service information identified in this proposed rule, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641–0000 or (800) 232–0323; fax (972) 641–3775; or at https:// www.airbus.com/helicopters/services/ technical-support.html. You may review the referenced service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N–321, Fort Worth, TX 76177. Matt Fuller, Senior Aviation Safety Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222–5110; email matthew.fuller@faa.gov. SUPPLEMENTARY INFORMATION: FOR FURTHER INFORMATION CONTACT: Comments Invited The FAA invites you to participate in this rulemaking by submitting written comments, data, or views. The FAA also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, E:\FR\FM\08NOP1.SGM 08NOP1

Agencies

[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]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

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.

========================================================================


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.

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

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