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, Stuart.Bender@usda.gov.

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.

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.).

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

1. The authority citation for § 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.

2. Revise §  8301.105 to read as follows:

Footnotes