Submission for OMB Approval of a Proposed Information Collection Report Form Concerning Payments to Charitable Organizations in Lieu of Honoraria

OFFICE OF GOVERNMENT ETHICS

Submission for OMB Approval of a Proposed Information Collection

Report Form Concerning Payments to Charitable Organizations in Lieu of

Honoraria

AGENCY: Office of Government Ethics (OGE).

ACTION: Notice.

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SUMMARY: The Office of Government Ethics has submitted to the Office of

Management and Budget (OMB) for review and approval, in accordance with

the Paperwork Reduction Act a proposed OGE form entitled ``Executive

Branch Personnel Confidential Report of Payments to Charitable

Organizations in Lieu of Honoraria'' that will collect information from

certain current and former employees of the executive branch of the

Federal Government. The new form will collect the information

identified in an OGE interim rule, which is not yet effective (and the

renewal of whose paperwork clearance likewise is being sought),

promulgated under the Ethics in Government Act.

DATES: Comments on this proposal should be received by August 1, 1994.

ADDRESSES: Comments should be sent to Joseph F. Lackey, Office of

Information and Regulatory Affairs, Office of Management and Budget,

New Executive Office Building, Room 10236, Washington, DC 20503;

telephone: 202-395-7316.

FOR FURTHER INFORMATION CONTACT: William E. Gressman or Robert W. Cobb,

Office of Government Ethics, Suite 500, 1201 New York Avenue NW.,

Washington, DC 20005-3917; telephone 202-523-5757, FAX 202- 523-6325. A

copy of OGE's request for approval from OMB, including the proposed new

form, may be obtained by contacting Mr. Gressman or Mr. Cobb.

SUPPLEMENTARY INFORMATION: The Office of Government Ethics proposes to

sponsor a new OGE Form 205 entitled ``Executive Branch Personnel

Confidential Report of Payments to Charitable Organizations in Lieu of

Honoraria'' and is seeking Paperwork Reduction Act approval from the

Office of Management and Budget for it. The new form will collect

pertinent financial information from current officers and employees in

the executive branch (other than special Government employees) who are

required to file annual public financial disclosure reports (SF 278s)

under title I of the Ethics in Government Act of 1978 (the Ethics Act),

as amended, and the OGE regulations at 5 CFR part 2634 as well as from

departing and former such filers on whose behalf payments in lieu of

honoraria are donated to charitable organizations during or based on

the period of their Government service. This is necessary in order to

provide a form to collect certain information required by the financial

disclosure provisions of section 102(a)(1)(A) of the Ethics Act, as

amended by the 1989 Ethics Reform Act, 5 U.S.C. app.

Under 5 U.S.C. app. 501(c), an honorarium that could otherwise be

accepted by a Government employee is deemed not to be received by the

employee if instead it is paid on the employee's behalf to a charitable

organization described in 26 U.S.C. 170(c). (The related honorarium

prohibition at 5 U.S.C. app. 501(b) has been held in abeyance pending

the outcome of ongoing litigation, see U.S. v. National Treasury

Employees Union, No. 93-1170, Supreme Court petition for certiorari

granted April 18, 1994 from 990 F.2d 1271 (D.C. Cir. 1993).) See also 5

CFR part 2636 of the OGE executive branch-wide regulations, as

published at 56 FR 1721-1730 (January 17, 1991) and amended at 57 FR

601-602 (January 8, 1992). For purposes of a qualifying in lieu of

honoraria payment, an employee is not permitted, however, to first

receive the payment and then pass it along or donate it to an eligible

charitable organization. Further, no such payment may exceed $2,000, be

made to a charitable organization from which the employee or his or her

parent, sibling, spouse, child, or dependent relative derives a

financial benefit, or be taken as a tax deduction. See 5 CFR 2636.204.

In addition, the OGE executive branch Standards of Ethical Conduct

generally prohibit any payment for an appearance, speech or article

that relates to an employee's official duties. See 5 CFR 2635.807.

Officers and employees who file the executive branch Standard Form

(SF) 278 ``Executive Branch Personnel Public Financial Disclosure

Report'' under title I of the Ethics Act, which report requires

information on the amount, date and source of any payments to

charitable organizations in lieu of honoraria from a source totaling

more than $200, will also have to file pursuant to the final part of 5

U.S.C. app. 102(a)(1)(A) a supplemental confidential report containing

additional information concerning such payments, including the name of

the recipient of the payment. This separate confidential reporting

requirement of public financial disclosure report (SF 278) filers is

not yet effective as to the executive branch pending issuance by OGE of

an OMB-approved supplemental report form to collect the information.

See 56 FR 21589 (May 10, 1991), 56 FR 51319 (October 11, 1991), and 57

FR 5369 (February 14, 1992) (since then, OGE has decided to make the

new report an OGE, not a standard, form; thus, General Services

Administration clearance will not be needed). Moreover, OGE has now

determined that filers of the confidential financial disclosure report

forms (Standard Form 450s) should not be included in this supplemental

in lieu of honoraria reporting requirement; 5 CFR 2636.205 will be

amended accordingly prior to its effective date.

Once this new form is approved and OGE makes the underlying

regulatory provision, as modified, effective, public annual and

termination SF 278 filers will have to separately file the confidential

payments in lieu of honoraria form, but only if they have any such

payments to report. In other words, negative (or ``None'') reports of

charitable payments in lieu of honoraria are not required. Furthermore,

new entrants and nominees are not subject to reporting under the OGE

rule as the statutory provisions only apply to employees during their

term of Government service.

The reporting period for an annual report for payments in lieu of

honoraria will be the preceding calendar year or, in the case of a

filer who entered Government during the prior year, that portion of the

preceding calendar year beginning with the filer's date of entry on

duty (if the filer's Government service exceeded 60 days in the

previous year). The reporting period for a termination report of a

public SF 278 filer will be the portion of the calendar year of

termination to the date the filer left the Government and, if the filer

has not already filed an annual report covering the period, the

preceding calendar year or other period required for that report.

The Office of Government Ethics anticipates that this supplemental

reporting requirement will become effective around January 1995

covering both terminees and annual filers (the first annual reports

will cover calendar year 1994, the regular due date for which is May

15, 1995). Further, if a public SF 278 filer leaves Government service

(or a reportable position) before the future effective date of this new

supplemental reporting requirement, no supplemental in lieu of

honoraria charitable payments report will be due when this new

requirement finally does take effect. Once OMB approval is obtained for

the new form, OGE will distribute it to all executive branch

departments and agencies for local reproduction.

The information to be reported on the OGE Form 205 will consist of,

in addition to the amount of the payment(s) in lieu of an honorarium

totaling more than $200 from any one source and the name and status (or

charitable purpose) of the charitable organization(s) to which the

payment(s) was donated on the employee's behalf, the date of the

payment(s), the date on which the employee made an underlying

appearance or speech or on which an underlying article was submitted

for publication, the name of the entity making the payment to the

charitable recipient, and the subject matter of the speech or article

or the reason for the appearance. Terminee SF 278 filers will also have

to separately report any such charitable payments contemplated, but not

yet made, for appearances, speeches, or articles made before

termination of their Government service.

These reports are to be filed with the employing executive branch

departments and agencies which, under the law and regulation, are to

transmit them each year to OGE (which in turn reviews the reports of

Senate-confirmed Presidential appointees.) This information will be

reviewed by Government officials at the employing agencies and OGE to

determine compliance with applicable laws and regulations. This

confidential report will not be disclosed to any requesting person

unless otherwise authorized by law. See also the form notice and the

OGE/GOVT-2 Privacy Act Government-wide executive branch system of

records (which will be revised to additionally cover these new reports)

for an explanation of the routine uses of this information on the form.

As this is a new reporting requirement with no prior data as to the

number of forms being filed annually, the total number of forms to be

filed annually and those to be filed by terminees who have already left

the Government by the time they fill out their reports (i.e., private

citizens) must of necessity be very approximate estimates.

Given a potential estimated reporting population of about 19,300

annual and terminee public SF 278 filers each year in the executive

branch (based on an OGE 1993 agency survey) and based on a 1993

sampling of some 200 SF 278 reports (which failed to reveal any in lieu

of honoraria charitable payments), OGE currently contemplates that less

than 0.5% of SF 278 filers will have payments on their behalf to

charitable organizations in lieu of honoraria to report. This means

that no more than 97 such reports are expected to be filed annually. Of

those 97 report forms, OGE believes that approximately 8%, a total of

some eight each year, will be filed by non-Government employee filers

(public SF 278 filer terminees having in lieu of honoraria payments to

report who are no longer Federal employees when they file). Normally,

OMB Paperwork Reduction Act approval is required for a nonstatistical

collection of information only if it affects 10 or more private persons

each year (not counting Federal employees for information collections

within the scope of their employment). However, pursuant to 5 CFR

1320.7(s)(1), an information collection contained in a rule of general

applicability such as 5 CFR 2636.205 of OGE's regulations is deemed to

affect 10 or more such persons annually. Thus, OGE is submitting this

new form for OMB paperwork approval (and is seeking paperwork renewal

for the as-yet not effective underlying regulation, which was initially

approved under the Paperwork Reduction Act by OMB on April 10, 1991).

The average response time for completion of the proposed report

form is estimated to be one-half hour. Thus, the estimated actual

reporting burden on the public will be four hours, eight report forms

(just counting those filed by private citizens) times one-half hour per

form. However, using the Sec. 1320.7(s)(1) regulatory minimum of 10

private citizen filers, the estimated burden will come to five hours.

This is a significant reduction in the estimated burden from 1991 (200

hours) when OGE submitted the underlying regulation (again, not yet

effective) for OMB paperwork clearance. As noted, this reduction

results primarily from OGE's recent decision to exclude the large body

of confidential SF 450 filers from this future supplemental reporting

requirement as well as the lowered estimate of the percentage of public

SF 278 filers who will have in lieu of honoraria charitable payments to

report.

Approved: June 24, 1994.

Stephen D. Potts,

Director, Office of Government Ethics.

[FR Doc. 94-16094 Filed 6-30-94; 8:45 am]

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