[Published at 58 FR 38911-38913 (July 21, 1993)]

OFFICE OF GOVERNMENT ETHICS

5 CFR Part 2634

RIN 3209-AAOO

Executive Branch Financial Disclosure, Qualified Trusts, and
Certificates of Divestiture

AGENCY:  Office of Government Ethics (OGE).

ACTION:  Interim rule with request for comments.

SUMMARY:  The Office of Government Ethics is amending subparts B,
F, G, and I of 5 CFR part 2634, an interim rule on executive branch
financial disclosure which was published on April 7, 1992.  The
amendments contain procedural clarifications for filing public and
confidential financial disclosure reports.  With regard to public
reports, OGE is eliminating the requirement that agencies provide
an annual update to the list of nonpolicy-making positions excluded
from filing.  Additionally, the amendments clarify what constitutes
the date of filing for purposes of determining when a public report
is subject to a late filing fee.  For confidential report filers,
the amendments codify earlier informal OGE guidance to agencies on
two matters:  the exclusion of special Government employees (SGEs)
from the requirement for incumbent reports, and the exclusion of
employees (other than SGEs) from the requirement for new entrant
reports if they are not expected to serve for more than 60 days in
a position otherwise designated for filing.  Finally, the
amendments supply the form number for the standard confidential
disclosure form, which was not known when the interim rule was
first published.

DATES:  Interim rule amendments effective July 21, 1993.  Public
comments on these amendments are welcome and must be received on or
before September 20, 1993.

ADDRESSES:  Comments should be sent to the Office of Government
Ethics, Suite 500, 1201 New York Avenue, NW., Washington, DC 
20005-3917, Attention: G. Sid Smith.

FOR FURTHER INFORMATION CONTACT:  G. Sid Smith, Office of
Government Ethics, telephone (202) 523-5757, FAX (202) 523-6325.

SUPPLEMENTARY INFORMATION:  This document amends an interim rule
which revised both the public and confidential financial disclosure
systems for executive branch employees, pursuant to title I of the
Ethics in Government Act of 1978 (Pub. L. 95-521, as amended by,
inter alia, the Ethics Reform Act of 1989, Pub. L. 101-194), and
Executive Order 12674 of April 12, 1989 (as amended).  That interim
rule was published on April 7, 1992 (57 FR 11800-11830) and
corrected on May 22 and December 31, 1992 at 57 FR 21854-21855 and
57 FR 62605, respectively.

     Executive branch employees in certain positions of a
confidential or policy-making character which are excepted from the
competitive service are required to file public financial
disclosure reports, unless excluded under regulatory guidelines. 
The interim rule which was published in April 1992 requires
agencies to provide OGE with a list of such positions being
excluded prior to the due dates for reports which such employees
would otherwise have to file.  That interim rule also required
agencies to provide an annual update to that list, reflecting
deletions, additions, or an indication of no change.  It has been
determined that the annual update is unnecessary and redundant. 
Therefore, that requirement is being eliminated by an amendment to
 2634.203 of subpart B of the interim rule.

     For filers of public financial disclosure reports, the interim
rule of April 1992 implemented a statutory late filing fee for
reports filed more than thirty-days after the normal due date,
including any authorized extensions.  Questions have arisen as to
what should constitute the date of filing for purposes of
determining whether a report is filed more than thirty days late. 
After examining the nature of this thirty-day period, OGE concluded
that the date of filing for purposes of determining whether a
public report is more than thirty days late should be the date of
receipt by the agency (which the rule already requires agencies to
note on reports when received), not the filer's submission date. 
Accordingly, an amendment to  2634.704 of subpart G of the
interim rule specifies that the date of receipt by the agency will
constitute the date of filing for purposes of determining whether
a report is filed more than thirty days late and therefore subject
to a late filing fee.  The thirty-day period was not intended to be
an extension of the due date, but merely a grace period for
purposes of imposing the late filing fee.  While it would be
reasonable for agencies to consider the filer's submission date and
to allow for any attendant administrative delays in determining
whether a report meets normal due dates, it would not be reasonable
to leave similarly indeterminate the thirty-day grace period for
purposes of imposing a late filing fee.  That grace period is
itself full allowance for administrative delays.  To extend the
thirty-day grace period for additional administrative delays
inappropriately suggests to filers that they may view the thirty
days as a due date extension.  This has resulted in submission
delays by some of those subject to public disclosure until the end
of the grace period.  

     For filers of confidential financial disclosure reports, the
April 1992 interim rule included SGEs among those required to file
annual incumbent reports if they serve more than sixty days.  That
was not intended, since SGEs are also required to file new entrant
reports upon each annual appointment or reappointment.  Therefore,
an amendment to  2634.903 of subpart I of the interim rule
eliminates the requirement for SGEs to file incumbent confidential
disclosure reports.  

     The April 1992 interim rule included as new entrant
confidential disclosure filers all employees who serve in positions
designated for filing, regardless of the number of days it was
anticipated that they would be performing duties in the position. 
That was not intended for employees (other than SGEs) who are not
anticipated to perform duties for more than 60 days in a designated
filing position, such as employees who serve temporarily in a
position in an acting capacity.  Therefore, another amendment to
 2634.903 of subpart I of the interim rule eliminates the
requirement for employees (other than SGEs) to file new entrant
reports when the agency ethics official determines that they are
not anticipated to perform duties for more than 60 days in a
confidential filer position.

     Finally, at the time the interim rule was published, the form
number for the standard confidential disclosure form was not yet
known.  Therefore, an amendment to  2634.601 of subpart F of the
interim rule supplies that number, SF 450.

Administrative Procedure Act

     Pursuant to 5 U.S.C. 553(b) and (d), as Director of the Office
of Government Ethics, I find good cause for waiving the general
notice of proposed rulemaking and 30-day delay in effectiveness as
to these revisions.  The notice and delayed effective date are
being waived because these amendments to an interim rule concern
minor procedural clarifications which conform with current
practice.  The Office of Government Ethics will review any comments
received during the comment period and consider any modifications
which appear warranted prior to issuing a final rule.

Executive Order 12291

     As Director of the Office of Government Ethics, I have
determined that these amendments do not constitute a major rule as
defined under section 1(b) of Executive Order 12291.

Regulatory Flexibility Act

     As Director of the Office of Government Ethics, I certify
under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that
these amendments to the interim rule will not have a significant
economic impact on a substantial number of small entities because
they will affect only Federal executive branch agencies and
employees.

Paperwork Reduction Act

     The Paperwork Reduction Act (5 U.S.C. chapter 35) does not
apply to these amendments to the interim rule because they do not
contain any additional information collection requirements which
require the approval of the Office of Management and Budget.

List of Subjects in 5 CFR Part 2634

     Administrative practice and procedure, Certificates of
divestiture, Conflict of interests, Financial disclosure,
Government employees, Penalties, Privacy, Reporting and
recordkeeping requirements, and Trusts and trustees.

Approved:  April 26, 1993.

____________________________________________
Stephen D. Potts,
Director, Office of Government Ethics.

     Accordingly, for the reasons set forth in the preamble, the
Office of Government Ethics is amending part 2634 of subchapter B
of Chapter XVI of title 5 of the Code of Federal Regulations as
follows:

PART 2634 -- [AMENDED]

     1.  The authority citation for part 2634 continues to read as
follows:

     Authority:  5 U.S.C. App. (Ethics in Government Act of 1978);
26 U.S.C. 1043; 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.

Subpart B -- Persons Required to File Public Financial Disclosure
Reports

     2.  Section 2634.203 is amended by revising paragraph (c)(1)
to read as follows:

 2634.203  Persons excluded by rule.

*     *     *     *     *

     (c)  Procedure. (1)  The exclusion of any individual from
reporting requirements pursuant to this section will be effective
as of the time the employing agency files with the Office of
Government Ethics a list and description of each position for which
exclusion is sought, and the identity of any incumbent employees in
those positions.  Exclusions should be requested prior to due dates
for the reports which such employees would otherwise have to file.

*       *      *     *     *

Subpart F -- Procedure

     3.  Section 2634.601 is amended by revising paragraph (a) to
read as follows:

 2634.601  Report Forms.

     (a)  The Office of Government Ethics provides, through the
Federal Supply Service of the General Services Administration, two
standard forms for financial disclosure reporting:  the SF 278
(Public Financial Disclosure Report) for reporting the information
described in subpart B of this part on executive branch public
disclosure; and the SF 450 (Confidential Financial Disclosure
Report) for reporting the information described in subpart I of
this part on executive branch confidential disclosure.

*     *     *     *     *

Subpart G -- Penalties

     4.  Section 2634.704 is amended by adding a new paragraph (f)
to read as follows:

 2634.704  Late filing fee.  

*     *     *     *     *

     (f)  Date of filing.  The date of filing for purposes of
determining whether a public financial disclosure report is filed
more than thirty days late under this section will be the date of
receipt by the agency, which should be noted on the report in
accordance with  2634.605(a).  The thirty-day grace period on
imposing a late filing fee is adequate allowance for administrative
delays in the receipt of reports by an agency.

Subpart I -- Confidential Financial Disclosure Reports

     5.  Section 2634.903 is amended as set forth below:
     A.  Revising paragraph (a);
     B.  Republishing the introductory clause of paragraph (b)(2);
     C.  Revising the last sentence of paragraph (b)(2)(ii); and
     D.  Adding a new paragraph (b)(2)(iii). 
     The revisions, republication and addition read as follows:

 2634.903  General requirements, filing dates, and extensions.

     (a)  Incumbents.  A confidential filer who holds a position or
office described in  2634.904 of this subpart and who performs
the duties of that position or office for a period in excess of 60
days during the twelve-month period ending September 30 (including
more than 60 days in an acting capacity) shall file a confidential
report as an incumbent, containing the information prescribed in
 2634.907 and 2634.908 of this subpart on or before October 31
immediately following that period.  No incumbent reports are
required of special Government employees described in 
2634.904(b) of this subpart, but they must file new entrant reports
under 2634.903(b) of this subpart upon each appointment or
reappointment.  For confidential filers under  2634.904(c) of
this subpart, consult agency supplemental regulations.

     (b) New entrants.  *   *   *

     (2) However, no report shall be required if the individual:

     *   *   *

     (ii)  *   *   *  The agency may request that the individual
update such a report if more than six months has expired since it
was filed; or

     (iii)  Is not reasonably expected to perform the duties of an
office or position referred to in  2634.904 of this subpart for
more than 60 days in the following twelve-month period, as
determined by the designated agency ethics official or delegate. 
That may occur most commonly in the case of an employee who
temporarily serves in an acting capacity in a position described by
 2634.904(a) of this subpart.  If the individual actually
performs the duties of such position for more than 60 days in the
twelve-month period, then a confidential financial disclosure
report must be filed within 15 calendar days after the sixtieth day
of such service in the position.  This paragraph (b)(2)(iii) of 
2634.903 does not apply to new entrants filing as special
Government employees under  2634.904(b) of this subpart.   

*     *     *      *     *