Agency Information Collection Activities; Proposed Collection; Comment Request for Modified Qualified Trust Model Certificates and Model Trust Documents

AGENCY:

Office of Government Ethics (OGE).

ACTION:

Notice of request for agency and public comments.

SUMMARY:

The U.S. Office of Government Ethics (OGE) is publishing this second round notice to request comment regarding its intent to submit modified versions of the 12 OGE model certificates and model documents for qualified trusts to the Office of Management and Budget (OMB) for review and approval under the Paperwork Reduction Act of 1995.

DATES:

Written comments by the public and the agencies on this proposed extension are invited and must be received on or before January 10, 2020.

ADDRESSES:

You may submit comments on this notice to the Office of Management and Budget, Attn: Desk Officer for OGE, via fax at 202-395-6974 or email at OIRA_Submission@omb.eop.gov.

FOR FURTHER INFORMATION CONTACT:

Jennifer Matis at the U.S. Office of Government Ethics; telephone: 202-482-9216; TTY: 800-877-8339; FAX: 202-482-9237; Email: jmatis@oge.gov. Copies of the model documents as currently approved are available on OGE's website, www.oge.gov. Electronic copies of these documents may also be obtained, without charge, by contacting Ms. Matis.

SUPPLEMENTARY INFORMATION:

Title: Executive Branch Qualified Trust Documents.

OMB Control Number: 3209-0007.

Type of Information Collection: Revision of a currently approved collection.

Type of Review Request: Regular.

Respondents: Any current or prospective executive branch officials who seek to establish or have established a qualified blind or diversified trust under the Ethics in Government Act of 1978 as a means to avoid conflicts of interest while in office.

Estimated Average Annual Number of Respondents: 2.

Total Estimated Time per Response: 20 minutes to 100 hours (see table below for detailed explanation).

Estimated Average Total Annual Burden: 120 hours.

Abstract: OGE is the supervising ethics office for the executive branch of the Federal Government under the Ethics in Government Act of 1978 (EIGA). Accordingly, OGE administers the qualified trust program for the executive branch. Presidential nominees to executive branch positions subject to Senate confirmation and any other executive branch officials may seek OGE approval for EIGA-qualified blind or diversified trusts as one means to be used to avoid conflicts of interest. The requirements for EIGA-qualified blind and diversified trusts are set forth in section 102(f) of the Ethics in Government Act, 5 U.S.C. app. § 102(f), and OGE's implementing financial disclosure regulations at subpart D of 5 CFR part 2634.

In order to ensure that all applicable requirements are met, OGE is the sponsoring agency for 12 model certificates and model trust documents for qualified blind and diversified trusts. See 5 CFR 2634.402(e)(3), 2634.402(f)(3), 2634.404(e)-(g), 2634.405(d)(2), 2634.407(a); 2634.408(b)(1)-(3), 2634.408(d)(4), 2634.409, and 2634.414. The various model certificates and model trust documents are utilized by settlors, trustees, and other fiduciaries in establishing and administering these qualified trusts. OGE plans to submit these model certificates and model trust documents (described in detail in the table below) to OMB for renewed approval pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.

The 12 model documents, along with their burden estimates, are as follows:

These estimates are based on the amount of time imposed on professional trust administrators or private representatives. OGE notes that only one set of the various model trust provisions (items (B) through (H)) will be prepared for a single qualified trust, and only prior to the establishment of that qualified trust. Likewise, other model documents listed above are used in connection with establishing the qualified trust (items (I), (J), and (K)). The remaining model documents are used after the trust's creation (items (A) and (L)). Accordingly, OGE notes that the majority of the time burden for any given trust is imposed during the creation of the trust.

At the present time, there are no active qualified trusts in the executive branch. However, OGE anticipates possible limited use of these model documents during the forthcoming three-year period. OGE estimates that there may be an average of one individual per year who initiates a qualified trust using these model documents during calendar years 2020 through 2022. OGE has accordingly estimated the average annual number of respondents to be two, which represents one respondent establishing a qualified trust and one respondent maintaining a previously established qualified trust. Based on the above, OGE estimates an average annual time burden during the next three years of 120 hours. Using an estimated rate of $300 per hour for the services of a professional trust administrator or private representative, the estimated annual cost burden is $36,000.

Under OMB's implementing regulations for the Paperwork Reduction Act, any recordkeeping, reporting, or disclosure requirement contained in a rule of general applicability is deemed to involve ten or more persons. See 5 CFR 1320.3(c)(4)(i). Therefore, OGE intends to submit, after this first round notice and comment period, all 12 qualified trust model certificates and model documents described above (all of which are included under OMB paperwork control number 3209-0007) for a three-year extension of approval. At that time, OGE will publish a second notice in the Federal Register to inform the public and the agencies.

OGE is committed to making ethics records publicly available to the extent possible. The communications documents and the confidentiality agreements (items (A), (I) and (J) on the table above), once completed, will not be available to the public because they contain sensitive, confidential information. The other completed certificates and documents (except for any trust provisions that relate to the testamentary disposition of trust assets) are retained and made publicly available based upon a proper request under section 105 of the EIGA until the periods for retention of all other reports (usually the OGE Form 278 Public Financial Disclosure Reports) of the individual establishing the trust have lapsed (generally six years after the filing of the last report). See 5 U.S.C. app. 105; 5 CFR 2634.603(g)(2). The information collected with these model trust certificates and model trust documents is part of the OGE/GOVT-1 Governmentwide Privacy Act system of records.

In seeking an extension of approval, OGE is proposing several nonsubstantive changes to the 12 qualified trust certificates and model documents.

First, OGE proposes removing all references to Appendices A and B of 5 CFR part 2634 because these references are no longer applicable. The appendices, which contained the model Certificate of Independence and model Certificate of Compliance (items (K) and (L), respectively, on the table above), were eliminated as part of recent changes made by OGE to the Executive Branch Financial Disclosure, Qualified Trusts, and Certificates of Divestiture regulation at 5 CFR part 2634. The changes went into effect on January 1, 2019. The information previously found in Appendix B is available on www.oge.gov.

Second, OGE proposes removing all references to facsimile as the best means of communication and replacing it with email.

Third, with regard to the model communications (item (A) in the table above), OGE proposes to update the dates in the sample documents to make them more contemporary.

Fourth, OGE proposes to add one sentence to the Privacy Act statements to better notify users of the consequences of not providing the requested information.

Fifth, OGE proposes to make a few minor formatting corrections and to fix a typographical error in the Privacy Act statements.

Sixth, OGE proposes to update the Privacy Act statement in accordance with recent changes made to the OGE/GOVT-1 system of records, covering Executive Branch Personnel Public Financial Disclosure Reports and Other Name-Retrieved Ethics Program Records. The changes were effective on November 8, 2019.

On September 25, 2019, OGE published a first round notice of its intent to request approval for the modified model trust certificates and trust documents under the Paperwork Reduction Act. See 84 FR 50449. OGE received no responses to that notice.

Request for Comments: Agency and public comment is again invited specifically on the need for and practical utility of this information collection, the accuracy of OGE's burden estimate, the enhancement of quality, utility, and clarity of the information collected, and the minimization of burden (including the use of information technology). Comments received in response to this notice will be summarized for, and may be included with, the OGE request for extension of OMB approval. The comments will also become a matter of public record.