[Federal Register Volume 61, Number 123 (Tuesday, June 25, 1996)]
[Rules and Regulations]
[Pages 32633-32636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15970]



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  Federal Register / Vol. 61, No. 123 / Tuesday, June 25, 1996 / Rules 
and Regulations  

[[Page 32633]]



OFFICE OF GOVERNMENT ETHICS

5 CFR Part 2634

RIN 3209-AAO6


Public Financial Disclosure, Conflicts of Interest, and 
Certificates of Divestiture for Executive Branch Officials

AGENCY: Office of Government Ethics (OGE).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Office of Government Ethics is adopting as final, with 
certain amendments, interim rules issued in 1990 implementing a 
provision of the Ethics Reform Act of 1989, as amended, which provides 
for tax deferral in appropriate cases involving the sale of property to 
comply with conflict of interest requirements. The regulation sets 
forth OGE's procedure for issuing Certificates of Divestiture 
authorizing such sales, and defines the permitted property into which 
the proceeds from such sales must be reinvested. The amendments being 
made in this rulemaking document reflect certain technical amendments 
to the underlying statutory provision and some other changes based on 
OGE's experience under, as well as the comments received on, the 
interim regulation.

EFFECTIVE DATE: July 25, 1996.

FOR FURTHER INFORMATION CONTACT: Norman B. Smith, Office of Government 
Ethics, Suite 500, 1201 New York Avenue, NW., Washington, DC 20005-
3917; telephone: 202-208-8000; FAX: 202-208-8037.

SUPPLEMENTARY INFORMATION:

A. Review of Statutory Change, Comment Letters and Rule Changes

    The Office of Government Ethics published an interim regulation on 
April 18, 1990 at 55 FR 14407-14409 establishing procedures with 
respect to the issuance of Certificates of Divestiture, which permit 
the nonrecognition of gain upon the disposition of property to comply 
with conflicts of interest requirements. That regulation is codified at 
subpart J of 5 CFR part 2634 of OGE's executive branch financial 
disclosure regulations. Section 1043 of the Internal Revenue Code of 
1986, 26 U.S.C. 1043, was enacted as part of the Ethics Reform Act of 
1989 (Public Law 101-194). Pursuant to section 1043, the subpart J 
regulation provides that OGE can issue a Certificate of Divestiture 
with respect to specific property, pursuant to the procedures 
specified, based upon a determination that such divestiture by an 
executive branch official (or spouse or minor/dependent child thereof) 
is reasonably necessary to comply with 18 U.S.C. 208, or any other 
Federal conflict of interest statute, regulation, rule or Executive 
order, or is requested by a congressional committee as a condition of 
confirmation, in the case of an ``eligible person'' as defined in the 
rule. The regulation also defines ``permitted property'' into which the 
proceeds from divestitures must be reinvested.
    The Federal purpose reflected in section 1043 of the Internal 
Revenue Code and these rules is to minimize the burden of Government 
service resulting from gain on the sale of assets for which divestiture 
is reasonably necessary because of the conflict of interest laws, in 
order to attract and retain desirable personnel in the executive branch 
and to ensure the confidence of the public in the integrity of 
Government officials and the Government's decisional processes within a 
framework of procedural fairness achieved through consistent 
application of the mandatory procedure.
    The Office of Government Ethics is now adopting the interim 
Certificate of Divestiture regulation as final, with a few revisions as 
discussed herein. First, one change reflects the inclusion of certain 
trustees as eligible persons as set forth in new paragraph (d) of 
Sec. 2634.1002. The May 1990 Technical Corrections to the Ethics Reform 
Act of 1989 (Pub. L. 101-280) added a new subsection (b)(5) to section 
1043 of the Internal Revenue Code of 1986, which expanded that 
section's definition of ``eligible person'' in subsection (b)(1) of 
section 1043 to include any trustee of a trust with respect to which a 
beneficial interest in property or income is either held by, or 
attributable through a spouse or minor or dependent child by Federal 
ethics principles to, a Government official.
    The legislative history of this provision evidences that the House 
Committee on Ways and Means did not intend through this amendment that 
the tax benefits of the section's nonrecognition mechanism would be 
generally available to beneficiaries of a trust other than those 
referred to in subsection (b)(1) (A) and (B) of section 1043 (that is 
the Government official and any spouse and minor and dependent 
children). The concern was that there may be additional parties who are 
beneficiaries of a trust who would obtain an unintended benefit.
    It is understood that the committee's intent was that the Office of 
Government Ethics' authority to issue Certificates of Divestiture be 
restricted as follows. A certificate will not be issued unless the 
parties take those actions which, in the opinion of the OGE Director, 
are appropriate to exclude parties in addition to those referred to in 
subsection (b)(1) (A) and (B) of section 1043 from participation in the 
nonrecognition mechanism. Such measures may include, as permitted by 
applicable State trust and estate law, division of the trust into 
separate portfolios, special distributions, dissolution of the trust, 
or any other method deemed by the Director, in his sole discretion, to 
be feasible under the facts and circumstances to exclude additional 
parties from benefiting from the nonrecognition mechanism.
    In view of the further analysis which must be undertaken by the 
Office of Government Ethics in the case of a Certificate of Divestiture 
request with respect to a trustee, it is now to be expressly required, 
in new paragraph (d) of Sec. 2634.1002, that the case materials 
furnished to the Office of Government Ethics include a copy of the 
trust instrument, full details as to its current portfolio, and a 
memorandum analyzing all beneficial interests in principal and income. 
To the extent that there may be additional parties with beneficial 
interests, the Office of Government Ethics may consult with 
representatives of the Government official, trustee, and other 
concerned parties, as appropriate, in order to resolve the issues 
presented.

[[Page 32634]]

    As a general premise, it must be emphasized that the section 1043 
mechanism applies to capital assets (as defined by section 1221 of the 
Internal Revenue Code, 26 U.S.C. 1221) held by an eligible individual 
(as defined by section 1043(b)). Not all transactions or occurrences 
which result in the realization of gain by an eligible individual fall 
within the statutory scheme. Some transactions and occurrences simply 
do not fit the statutory requirements, others may present instances 
where certification would give an unfair or unintended benefit.
    In this connection, the issues involved in requests for 
Certificates of Divestiture involving interests in pension, profit- 
sharing, and stock bonus plans are subject to considerable subtlety and 
complexity. With respect to such employee benefit plans, such an unfair 
and unintended benefit would occur upon certification of property held 
or received during one step of a sequence in avoidance of transferring 
an otherwise qualifying rollover distribution to an eligible retirement 
plan within 60 days. In other words, certificates may not be used to 
achieve a tax advantaged removal of employee benefit plan funds from 
the rules which normally pertain to such plans in cases where no 
capital gains tax would be imposed if those rules were followed.
    Accordingly, in the absence of a demonstration that an interest in 
an employee benefit plan is not eligible for rollover treatment, a 
certificate will not be issued with respect to such an interest. Such a 
demonstration must satisfy the Office of Government Ethics that the 
plan administrator cannot make a qualifying distribution in the case of 
the eligible person to which the provisions of section 402(f) of the 
Internal Revenue Code, 26 U.S.C. 402(f), would apply and that the 
particular property interest proposed for certification falls within 
the statutory scheme of section 1043 of such Code.
    The rules pertaining to these concerns are contained in new 
paragraph (e) of Sec. 2634.1002 to guard against unfair and unintended 
benefits. The paragraph also specifies that a certificate will not be 
issued with respect to the exercise of stock options that will result 
in compensation income. Further, the paragraph states that a 
certificate will not be issued after the normally applicable three-
month period for complying with an ethics agreement with respect to 
divestiture (or any extension of such period to which the Office of 
Government Ethics has concurred in writing), and that in order for a 
certificate to be granted, the parties must also agree to divest all 
similar or related interests in property. The statement of materials to 
be submitted with a certificate request has been clarified to ensure 
that adequate information is received with respect to additional 
interests in the case of executive branch employees who do not normally 
file financial disclosure reports (see Sec. 2634.1002(b)(1)(ii)(B)). 
Finally, a new provision has been added to specify that a certificate 
will not be issued as to property acquired under improper circumstances 
(see Sec. 2634.1002(e)(6)).
    The Office of Government Ethics received comments from three 
agencies on its April 1990 interim rules. Paragraph (b)(1)(v) of 
Sec. 2634.1002 is being revised pursuant to the suggestion of one 
agency that the documentation required to substantiate the request of a 
congressional committee that specific property be divested conform to 
the types of materials more readily available in such circumstances. 
That provision has been expanded to include as appropriate 
documentation a letter to the committee containing a promise from the 
nominee to divest specified property in accordance with the committee's 
request or, alternatively, a transcript of congressional testimony 
containing such a commitment by the nominee pursuant to the committee's 
request. The agency also urged that paragraph (c)(2) of Sec. 2634.1002 
be expanded to include within the definition of eligible person the 
spouse and children of any officer or employee referred to in paragraph 
(c)(1) of that provision whose ownership of property is attributable to 
such officer or employee by a congressional committee. However, such an 
expansion of the scope of this provision would exceed the statutory 
coverage of Internal Revenue Code section 1043(b)(1)(B) and is, 
therefore, impermissible. On the other hand, it would seem that in most 
situations where this concern would arise divestiture would appear 
reasonably necessary to comply with Executive Order 12674 (as modified 
by E.O. 12731) on Principles of Ethical Conduct for Government Officers 
and Employees and regulations pursuant to such order, including 5 CFR 
part 2635 and any supplemental agency regulations. Accordingly, the 
appropriate statutory basis for the issuance of a Certificate of 
Divestiture would exist in the vast majority of situations which can be 
anticipated.
    One agency observed that the concept of ``investment fund'' as 
defined for purposes of Internal Revenue Code section 1043 contrasts 
with that found in section 102(f)(8) of the Ethics in Government Act, 5 
U.S.C. appendix, section 102(f)(8). The concern was further expressed 
that a third concept of investment fund may exist under 18 U.S.C. 208 
with respect to the consideration of waivers under subsection (b) of 
that provision. However, such types of distinctions are normally 
encountered in legislative materials. The definition which appears in 
Sec. 2634.1003 of the Certificate of Divestiture regulation is in 
accordance with the statutory scheme of section 1043 of the Internal 
Revenue Code. In any forthcoming regulations, the Office of Government 
Ethics will continue to achieve such harmony and uniformity in ethics 
program rules as is permitted by applicable statutes and their 
legislative histories.
    One agency criticized the regulations for not specifying the time 
by which a divestiture must occur after a Certificate of Divestiture 
has been issued, or the time by which a rollover must be completed. The 
agency stated further that an eligible person is not given any guidance 
as to how to associate the certificate with tax return material, and 
that he should not be required to use a certificate that has been 
issued to him.
    First, while the availability of Certificates of Divestiture will 
be important to persons who receive them, the primary focus of the 
ethics program should be on the ethics agreement mechanism of subpart H 
of 5 CFR part 2634 (or a similarly structured agreement for any 
eligible nonreporting individual seeking a certificate). There should 
not be a request for a Certificate of Divestiture in cases in which 
there is not a binding ethics agreement to divest property pursuant to 
the procedures specified by subpart H (or under a similarly structured 
arrangement), normally within three months unless an extension is 
granted. Such an agreement should include a specification of the time 
by which divestiture is to occur. The time specified may be in terms of 
a formula such as ``thirty days after the issuance of a Certificate of 
Divestiture by the Office of Government Ethics, but not later than 
____________________''. New paragraph (e)(4) of Sec. 2634.1002 will now 
provide that, in the case of an agreement to implement a divestiture 
required by statute, regulation, rule, or executive order, the normal 
three-month period will be deemed to start no later than 10 days after 
such requirement becomes applicable. However, it must be realized that 
section 1043 is essentially a tax matter. Except for those specifics 
described as the scope of these regulations in paragraph (b) of 
Sec. 2634.1001, which is being revised to take note of the 60-day 
period for

[[Page 32635]]

qualified rollovers and the types of permitted property into which such 
rollovers are to be made (United States obligations and diversified 
investment funds as defined in Sec. 2634.1003) under the statute, 26 
U.S.C. 1043 (a) and (b)(3), other aspects of the availability and use 
of section 1043 and the certificates issued pursuant to its mechanism 
are the responsibility of the Internal Revenue Service and beyond the 
authorities delegated to the Office of Government Ethics.
    Finally, OGE is also clarifying a few passages in the rule, 
including adding an express statement (at Sec. 2634.1002(b)(1)(i)) that 
a certificate cannot be issued for property which has already been 
divested, and is revising the authority citation for the entire part 
2634 regulation to ensure inclusion once more of reference to 26 U.S.C. 
1043, which was inadvertently omitted in the 1995 edition of the CFR.

B. Matters of Regulatory Procedure

Executive Order 12866

    In promulgating this final rule issuance, the Office of Government 
Ethics adhered to the regulatory philosophy and the applicable 
principles of regulation set forth in section 1 of Executive Order 
12866, Regulatory Planning and Review. This final rule has also been 
reviewed by the Office of Management and Budget under that Executive 
order.

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 this final 
regulation will not have a significant economic impact on a substantial 
number of small entities because it only affects certain financial 
interests of executive branch employees and their immediate families.

Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply 
because this regulatory issuance does not contain any additional 
information collection requirements that 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, Trusts 
and trustees.

    Approved: April 18, 1996.
Stephen D. Potts,
Director, Office of Government Ethics.

    Accordingly, for the reasons set forth in the preamble, the Office 
of Government Ethics is adopting the interim regulation codified at 
subpart J of 5 CFR part 2634, published at 55 FR 14407- 14409 (April 
18, 1990), as a final regulation with the following amendments:

PART 2634--[AMENDED]

    1. The authority citation for part 2634 is revised 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 J--Certificates of Divestiture

    2. Paragraph (b) of Sec. 2634.1002 is amended by revising the 
second sentence and adding a new third sentence to read as follows:


Sec. 2634.1001   Nonrecognition for sales to comply with conflict of 
interest requirements; general considerations.

* * * * *
    (b) Scope. * * * The rules of this subpart relate to the issuance 
of Certificates of Divestiture and the permitted property into which a 
reinvestment must be made during the 60-day period beginning on the 
date of such a sale in order for nonrecognition to be permitted. Such 
reinvestments are called rollovers, and are limited to obligations of 
the United States and diversified investment funds as defined in 
Sec. 2634.1003. * * *
* * * * *
    3. Section 2634.1002 is amended by revising paragraphs (b)(1)(i), 
(b)(1)(ii), (b)(1)(iv)(B), (b)(1)(v), and (c), and adding new 
paragraphs (d) and (e) to read as follows:


Sec. 2634.1002   Issuance of Certificates of Divestiture.

* * * * *
    (b) Procedural requirements--(1) Required submissions. * * *
    (i) A copy of a written request from the eligible person who is to 
divest the property (a Certificate of Divestiture cannot be issued for 
property which has already been divested) to the designated agency 
ethics official to pursue certification in the case of the property to 
be divested, which includes:
    (A) A commitment to complete the divestiture on or before a 
specified date which is no later than the end of the three-month period 
referred to by Sec. 2634.802(b) (or a similarly structured agreement in 
any case to which paragraph (b)(1)(ii)(B) of this section applies), or 
any extension thereof granted, or concurred with in writing, by the 
Office of Government Ethics; and
    (B) Full and complete information concerning the facts and 
circumstances relating to the acquisition of such property and its 
contemplated divestiture;
    (ii) In the case of an individual referred to in paragraph (c)(1) 
of this section who:
    (A) Is required by the rules of this part or this title, to file a 
financial disclosure report, a copy of the latest report which has been 
filed; or
    (B) Is not required to file a report referred to in paragraph 
(b)(1)(ii)(A) of this section, a memorandum from such individual which 
discloses the information with respect to the specification of 
interests in property, income, liabilities, agreements and 
arrangements, and outside positions which are required to be disclosed 
on such a report;
* * * * *
    (iv) * * *
    (B) Analysis and opinion from such designated agency ethics 
official concerning the application of the rules of this part in the 
case of the proposed certification, including specification of the date 
on which the three-month period referred to by Sec. 2634.802(b) (or a 
similarly structured agreement in any case to which paragraph 
(b)(1)(ii)(B) of this section applies), or any extension thereof 
granted, or concurred with in writing, by the Office of Government 
Ethics, will lapse; and
    (v) In lieu of the materials described in paragraph (b)(1)(iv) of 
this section, in the case of the contemplated divestiture of specific 
property pursuant to the request of a congressional committee as a 
condition of confirmation, such materials shall include the written 
acknowledgement of the Chairman of such committee of such request, a 
letter to the committee containing a promise from the nominee to divest 
specified property in accordance with such request, or a transcript of 
congressional testimony containing such a commitment by the nominee 
pursuant to such request.
* * * * *
    (c) Eligible person. For purposes of section 1043 and this subpart, 
the term ``eligible person'' includes:
    (1) Any officer or employee of the executive branch of the Federal 
Government, except a person who is a special Government employee as 
defined in 18 U.S.C. 202;
    (2) The spouse and any minor or dependent child of an individual

[[Page 32636]]

referred to in paragraph (c)(1) of this section whose ownership of 
property required to be divested is attributable to such person by 18 
U.S.C. 208, or any other Federal conflict of interest statute, 
regulation, rule, or executive order; and
    (3) Any trustee holding property in trust required to be divested 
in which:
    (i) An individual referred to in paragraph (c)(1) of this section 
has a beneficial interest in principal or income; or
    (ii) A spouse or any minor or dependent child of an individual 
referred to in paragraph (c)(2) of this section has a beneficial 
interest in principal or income which is attributable to a person 
referred to in paragraph (c)(1) of this section by 18 U.S.C. 208, or 
any other Federal conflict of interest statute, regulation, rule, or 
executive order.
    (d) Special rules in the case of a trustee who is an eligible 
person. (1) Notwithstanding any other rule of this subpart, in the case 
of a trustee who is an eligible person pursuant to paragraph (c)(3) of 
this section, a Certificate of Divestiture will not be issued unless 
the parties take those actions which, in the opinion of the Director of 
the Office of Government Ethics, are appropriate to exclude parties in 
addition to those referred to in paragraph (c) (1) and (2) of this 
section from participation in the nonrecognition mechanism. Such 
measures may include, as permitted by applicable State trust and estate 
law, division of the trust into separate portfolios, special 
distributions, dissolution of the trust, or any other method deemed by 
the Director, in his sole discretion, to be feasible under the facts 
and circumstances to exclude additional parties from benefiting from 
the nonrecognition mechanism.
    (2) In view of the further analysis which must be undertaken by the 
Office of Government Ethics in the case of a Certificate of Divestiture 
request with respect to a trustee, the required submissions in such a 
case shall include in addition to the materials described in paragraph 
(b)(1) of this section, a copy of the trust instrument, full details as 
to its current portfolio, and a memorandum analyzing all beneficial 
interests in principal and income. To the extent that there may be 
additional parties with beneficial interests, the staff of the Office 
of Government Ethics may consult with representatives of the Government 
official, trustee, and other concerned parties, as appropriate, in 
order to resolve the issues presented in light of the principles 
described in paragraph (d)(1) of this section.
    (e) Special rules in the case of employees; unfair and unintended 
benefits--(1) In general. Notwithstanding any other rule of this 
subpart, a Certificate of Divestiture will not be issued in any case in 
which, in the opinion of the Director of the Office of Government 
Ethics, in his sole discretion, an unfair or unintended benefit would 
be conferred on an eligible person. Paragraphs (e)(2) through (g)(6) of 
this section give examples of the application of the general rule of 
this paragraph (e)(1).
    (2) Employee benefit plans. With respect to interests in pension, 
profit-sharing, stock bonus and other employee benefit plans, such an 
unfair or unintended benefit would occur upon certification of property 
held or received during one step of a sequence in avoidance of 
transferring an otherwise qualifying rollover distribution to an 
eligible retirement plan within 60 days. In other words, Certificates 
of Divestiture may not be used to achieve a tax advantaged removal of 
employee benefit plan funds from the rules which normally pertain to 
such plans in cases where no capital gains tax would be imposed if 
those rules were followed. Accordingly, in the absence of a 
demonstration that an interest in an employee benefit plan is not 
eligible for rollover treatment, a certificate will not be issued with 
respect to such an interest. Such a demonstration must satisfy the 
Office of Government Ethics that the plan administrator cannot make a 
qualifying distribution in the case of the eligible person to which the 
provisions of section 402(f) of the Internal Revenue Code of 1986 would 
apply and that the particular property interest proposed for 
certification falls within the statutory scheme.
    (3) Certain property received as compensation for services. Such an 
unfair and unintended benefit would occur upon certification of 
property received as compensation for services, the gain from which 
would otherwise be treated as earned income. For example, with respect 
to the contemplated exercise of a stock option granted by an employer, 
such an unfair and unintended benefit would occur upon certification if 
such exercise or the sale of the resultant stock would otherwise result 
in earned income to the employee.
    (4) Nontimely divestitures. With respect to any contemplated 
divestiture, such an unfair or unintended benefit would occur upon 
certification after the three-month period referred to by 
Sec. 2634.802(b) (or a similarly structured agreement in any case to 
which paragraph (b)(1)(ii)(B) of this section applies) has lapsed, 
unless there is an extension of time in a case of unusual hardship as 
determined pursuant to such section by the Office of Government Ethics 
or the designated agency ethics official (with the written concurrence 
of the Office of Government Ethics). In the case of such an agreement 
to implement a divestiture required by statute, regulation, rule, or 
executive order, such three-month period shall be deemed, for purposes 
of this subpart, to have started no later than 10 days after such 
requirement had become applicable.
    (5) Similar or related interests. With respect to any contemplated 
divestiture, such an unfair or unintended benefit would occur unless 
all similar or related interests in property were also subject to a 
divestiture commitment.
    (6) Property acquired under improper circumstances. With respect to 
any contemplated divestiture, such an unfair advantage or unintended 
benefit would occur if the property was acquired at a time when the 
holding of such property was prohibited by any law or regulation or 
under circumstances which otherwise would create the appearance of a 
conflict with the conscientious performance of governmental 
responsibilities.

[FR Doc. 96-15970 Filed 6-24-96; 8:45 am]
BILLING CODE 6345-01-P