[Published at 59 FR 33989-33991 (July 1, 1994)] 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. 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  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.