[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
________________________________________________________________________
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
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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
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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