Pension Benefit Guaranty Corporation.
Proposed rule.
The proposed rule would update and clarify guidance on examining records kept by the Pension Benefit Guaranty Corporation. The proposed amendments reflect statutory changes to the Freedom of Information Act and recent updates to PBGC's procedures for record examination.
Comments must be submitted on or before December 14, 2020 to be assured of consideration.
Comments may be submitted by any of the following methods:
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All submissions must include the agency's name (Pension Benefit Guaranty Corporation or PBGC) and the Regulation Identifier Number for this rulemaking (RIN 1212–AB44). Comments received will be posted without change to PBGC's website,
Melissa Rifkin (
The purpose of this regulatory action is to update the Pension Benefit Guaranty Corporation's (PBGC's) regulation on requesting, obtaining, and examining records to reflect statutory changes and current agency practice. Authority for this rule is provided by section 4002(b)(3) of the Employee Retirement Income Security Act of 1974 and by the Freedom of Information Act, as amended.
This proposed rule would:
• Clarify that PBGC's disclosable records are generally available in an electronic, rather than paper, format.
• Describe the procedure to seek expedited treatment for record requests.
• Clarify the acceptable methods for submitting record requests.
• Update the time limit to respond to record requests.
• Clarify the procedures available to a requester when PBGC extends the time to respond to a disclosure request or an appeal.
• Clarify the procedure for responding to requests that are of concern to a Federal agency other than PBGC.
• Update the fees for search and review time.
• Modify the definitions of certain categories of requesters.
The Pension Benefit Guaranty Corporation (PBGC) proposes to amend its regulation on Examination and Copying of PBGC Records (29 CFR part 4901) (“FOIA regulation”) to: (1) Incorporate statutory changes to the Freedom of Information Act (5 U.S.C. 552) (“FOIA”) made by the FOIA Improvement Act of 2016 (“the 2016 Act”) and prior statutory amendments; (2) reflect PBGC's current procedures for processing and responding to FOIA requests; and (3) update the fees charged to certain requesters to more accurately reflect PBGC's costs in performing the search and review work that is necessary to respond to their FOIA requests. The proposed rule would also make clarifications and other editorial changes to 29 CFR part 4901.
PBGC is committed to maintaining excellent customer service in responding to FOIA requests. Since 2015, PBGC has received the Department of Justice's Office of Information Policy's highest score in each key area for which it recognizes agencies: (1) Applying a presumption of openness, (2) having an efficient system in place for responding to requests, (3) increasing proactive disclosures, (4) utilizing technology, and (5) reducing any backlogs and improving timeliness.
Section 2 of the 2016 Act replaced references to “public inspection and copying” in the FOIA with “public inspection in an electronic format.” A stated goal of the 2016 Act was to “require federal agencies to make their disclosable records and documents available for public inspection in an electronic format.”
PBGC used to maintain a reference room on site where members of the public could inspect and copy certain PBGC records without formally requesting them. Following the directive of the 2016 Act to make records and documents available for public inspection in an electronic format, PBGC modified its FOIA regulation and replaced instances of the term “reference room” with “electronic reading room,” meaning an online and publicly accessible database of certain PBGC records.
PBGC proposes to update § 4901.4(c) of the FOIA regulation to remove the requirement that PBGC keep a register for the purpose of collecting the names of people who inspect rulemaking proceedings in the electronic reading room and the times at which they do so. This requirement was possible with PBGC's on site reference room but is impractical with its electronic reading room. It would be unnecessarily burdensome to require individuals who inspect rulemaking proceedings in the electronic reading room to provide their names.
PBGC proposes to amend § 4901.11 of the FOIA regulation to clarify the procedures for submitting a request for records. First, PBGC's Disclosure Division requires FOIA requests to be in writing, and the proposed amendment would codify this requirement. Second, the proposed amendment would codify that electronic telecommunication (
In addition, PBGC proposes to clarify its procedures applied when a FOIA request does not sufficiently describe the records being sought. Section 4901.12(b) of the FOIA regulation states that PBGC will offer assistance to a requester who has submitted a deficient request. The proposed amendment would add that the requester will be informed of the availability of assistance from the FOIA Public Liaison, that failure to reasonably describe the records being sought could cause a delay in responding to the request or a denial of the request, and that an amended request must provide sufficient detail to meet the requirements of an original request.
Section 552(a)(6)(A)(i) of the FOIA provides that a Federal agency has 20 working days to make a determination on a FOIA request. A Senate Report to the Electronic Freedom of Information Act Amendments of 1996,
Section 552(a)(6) of the FOIA provides that Federal agencies have a single opportunity to ask the requester for additional information and toll the 20-working day response period while awaiting the requester's response. This provision is intended to “ensure accuracy in FOIA responses.”
Also, PBGC proposes to add to § 4901.14(b) a provision that PBGC will provide records in the format specified in the request if practicable.
Finally, PBGC proposes to clarify its procedures for when a requested record cannot be located. Section 4901.14(d) of the FOIA regulation states that a request may be denied if a record is not located in time to determine whether it may be disclosed. PBGC proposes to clarify that when records cannot be located despite a reasonably calculated search to uncover all relevant documents, PBGC will let the requester know there are no records to provide, rather than deny the request.
Under PBGC's procedures, a requester may appeal any adverse determination by the Disclosure Division. However, § 4901.15(a) states only that a requester may appeal a denial of a request for disclosure of information. The proposed amendment to § 4901.15(a) would clarify that a requester may appeal any adverse decision by the Disclosure Division under FOIA, including a denial of: access to records, expedited processing, or waiver of fees. It also would clarify the instructions for submitting an appeal.
As provided for in section 552(a)(6)(B) of the FOIA and § 4901.16 of the FOIA regulation, PBGC may extend its time to respond to a disclosure request or an appeal when it must collect records stored offsite, examine a voluminous amount of records, or consult with another agency to respond to a FOIA request. PBGC proposes to add to § 4901.16 that when that extension of time exceeds 10 working days, the requester will be provided with an opportunity to seek assistance, modify the request, or arrange an alternative time period (with new response due dates) for processing the original or modified request. This change is intended to improve customer service.
Section 552(a)(6)(E)(i) of the FOIA states that Federal agencies must promulgate regulations to provide expedited processing of FOIA requests and appeals where the requester demonstrates a compelling need and for other reasons determined by the agency. PBGC's Disclosure Division has a process to request and receive expedited processing. The proposed regulation would codify this process. Proposed new § 4901.17 would allow a requester to submit a request for expedited action on a disclosure request or appeal. PBGC would act on the disclosure request or appeal as soon as practicable if the requester demonstrates that: (1) A lack of expedited action could reasonably be expected to pose an imminent threat to the life or physical safety of an individual or the loss of an individual's substantial due process rights, or (2) the requester is primarily engaged in disseminating information and the disclosure request or appeal is urgently needed to inform the public about an actual or alleged Federal Government activity.
The proposed rule would move the current § 4901.17 on exhaustion of administrative remedies to new § 4901.18.
PBGC proposes to modify § 4901.23, which covers the procedures for a requested record that is of interest to a Federal agency other than PBGC. Currently, PBGC may release such a record only if it determines that PBGC's interest in the record is greater than that of the other agency. Under the proposed amendment, PBGC would have greater discretion over whether to transfer the request to another agency. If PBGC receives a request for records that is of concern to another agency, PBGC would either consult with the interested Federal agency about the requested records before determining whether the record is disclosable or refer the request to the interested Federal agency to make that determination. This change is intended to eliminate referrals where the requested record is of concern to the other agency, but PBGC is nonetheless able to determine whether it may be disclosed. Allowing a consultation in these situations will help to ensure that certain requests for records are not unnecessarily delayed.
PBGC proposes to simplify the categories of requesters used to determine if a requester will be charged fees. Under § 4901.31(b), (1) non-commercial scientific or educational institutions and (2) the news media are considered as two separate categories. Under the proposed amendment, they would be combined into a single category, as all requesters that fall within these parameters are not assessed fees for responses to their FOIA requests.
In addition, PBGC proposes to update the definitions in § 4901.31(b). The definition of “commercial use” would state in proposed § 4901.31(b)(1)(ii) that such use may include litigation work and that PBGC will determine if a requester should be in the “commercial use” category on a case-by-case basis and inform the requester of its decision. The definition of “educational institution” would be modified in proposed § 4901.31(b)(2)(iii) to allow PBGC to verify that a request is in furtherance of scholarly research and state that PBGC will inform the requester of its decision. Also, the definition of “representative of the news
Finally, the proposed rule would clarify in proposed § 4901.31(e) the circumstances in which PBGC may fail to comply with a time limit under section 552(a)(6) of the FOIA but still assess fees.
PBGC proposes to update the fees charged for search and review time on its FOIA fee schedule. Under section 552(a)(4)(A)(i) of the FOIA,
PBGC's fees are too low to comport with the requirement to fully recoup direct costs, per OMB Guidelines and 5 U.S.C. 552(a)(4)(A)(i). PBGC currently charges $1.75 per quarter hour ($7.00 per hour) for search and review work performed by custodial or clerical personnel and $4.00 per quarter hour ($16.00 per hour) for search and review work performed by supervisory and professional personnel. These rates were set in 1987
PBGC personnel who typically conduct search and review work are a homogeneous class of professional employees. These employees generally are at the grade level of GS–12 or higher. Accordingly, PBGC proposes to set a single fee for search and review work performed by professional personnel at $54.00 per hour (approximately basic pay plus 16 percent
The proposed change to PBGC's fee schedule is unlikely to increase fees to individual plan participants or beneficiaries requesting their own records. PBGC considers most such requests to be covered wholly under the Privacy Act of 1974, 5 U.S.C. 552a, which allows fees only for duplication. Any components of these requests that are not covered under the Privacy Act likely require no more than two hours of search time, which, as “other requesters,” individual plan participants requesting their own records are granted at no charge. Also, PBGC will not earn any additional funds from this change, as FOIA fees are paid to the U.S. Treasury, rather than to the agency responding to the request.
In addition, PBGC proposes to streamline and simplify its methods of calculating certain fees under FOIA. Section 4901.32(a)(2) of the FOIA regulation states that PBGC's transportation costs necessary for retrieving offsite records will be charged to a requester. Under the proposed amendment, PBGC would charge these costs in accordance with the Transactional Billing Rate Schedule established by the National Archives and Records Administration.
Finally, § 4901.32(a)(3), which establishes a different system of charges for searches of computerized records, would be deleted, and the outmoded limits on copied documents in § 4901.32(b)(3) and references to PBGC's provision of a manual copying machine in § 4901.32(b)(4) would be deleted.
PBGC proposes changing the list in § 4901.33 of approved methods to submit payment of FOIA fees to check, money order or other PBGC permitted means. This change will allow PBGC to employ new technologies for submitting FOIA fee payments as they are developed.
Section 552(a)(4)(A)(iii) of the FOIA describes the conditions necessary to waive FOIA fees.
The Office of Management and Budget has determined that this rulemaking is not a “significant regulatory action” under Executive Order 12866. This rule updates PBGC's FOIA regulation to comport with amendments to 5 U.S.C. 552 and PBGC's procedures. Accordingly, this proposed rule is exempt from Executive Order 13771, and OMB has not reviewed the proposed rule under Executive Order 12866.
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity).
Although this is not a significant regulatory action under Executive Order 12866, PBGC has examined the economic implications of this proposed rule and has concluded that there will be no significant economic impact as a result of the proposed amendments to PBGC's regulation. Most of the proposed amendments merely clarify existing PBGC practices or modify the regulation to meet statutory requirements. The only additional costs to the public come from the update to the fees for search and review time under § 4901.32 to bring the fee schedule in line with current costs. Under the FOIA regulation, PBGC collects annually less than $3,000 in fees for responding to FOIA requests. Under the proposed rule, PBGC anticipates that it will collect between $6,500 and $10,000 in fees annually. As such, the increased fees under § 4901.32 will not have a significant economic impact on the public.
Section 6 of Executive Order 13563 requires agencies to rethink existing regulations by periodically reviewing
The Regulatory Flexibility Act
For purposes of the Regulatory Flexibility Act requirements with respect to this proposed rule, PBGC considers a small entity to be a plan with fewer than 100 participants. This is substantially the same criterion PBGC uses in other regulations
Thus, PBGC believes that assessing the impact of the final rule on small plans is an appropriate substitute for evaluating the effect on small entities. The definition of small entity considered appropriate for this purpose differs, however, from a definition of small business based on size standards promulgated by the Small Business Administration
Based on its definition of small entity, PBGC certifies under section 605(b) of the Regulatory Flexibility Act that the amendments in this proposed rule would not have a significant economic impact on a substantial number of small entities. Most of the amendments clarify existing PBGC practices and will have a neutral cost impact. The amendment to PBGC's search and review fees is consistent with OMB Guidelines. Accordingly, as provided in section 605 of the Regulatory Flexibility Act, sections 603 and 604 do not apply.
This document does not contain a collection-of-information requirement subject to the Paperwork Reduction Act (PRA).
Business and industry, Organization and functions (Government agencies), Pension insurance, Pensions, Small businesses.
Freedom of information.
In consideration of the foregoing, PBGC proposes to amend 29 CFR parts 4001 and 4901 as follows.
29 U.S.C. 1301, 1302(b)(3).
5 U.S.C. 552, 29 U.S.C. 1302(b)(3), E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235.
This part contains PBGC's general rules implementing the Freedom of Information Act. This part sets forth generally the categories of records accessible to the public, types of records subject to prohibitions or restrictions on disclosure, and procedures whereby members of the public may access and inspect PBGC records.
The revisions read as follows:
(c)
(d)
(1)
(2)
(3)
(4)
(5)
(a)
(b)
(a)
(2) For rules about permissible methods of filing with PBGC under this part, see § 4000.3 of this chapter.
(3) For rules about the date that a submission under this part was filed with PBGC, see subpart C of part 4000 of this chapter.
(b)
(a)
(b)
The revision reads as follows:
(b)
(2) A requester who is attempting to modify or reformulate a disclosure request may discuss the request with a FOIA Public Liaison, who is available to assist the requester in reasonably describing the records sought. If the requester fails to reasonably describe the records sought, PBGC's response to the request may be delayed or denied.
(3) Any amended disclosure request must meet the requirements for a request under paragraph (a) of this section.
The Disclosure Officer will note the date and time of receipt on each disclosure request for access to records. A disclosure request is deemed received and the period within which PBGC acts on the request, as set forth in § 4901.14, begins on the next working day following receipt, except that a disclosure request is deemed received only if and when PBGC receives all of the following:
(a) A sufficient description under § 4901.12;
(b) Payment or assurance of payment if required under § 4901.33(b); and
(c) The requester's consent to pay substantial search, review, and/or duplication charges under subpart D of this part if PBGC determines that such charges may be substantial and so notifies the requester. Consent must be in the form of a statement that charges under subpart D of this part will be
(a)
(b)
(c)
(d)
(e)
The revisions read as follows:
(a)
(b)
(1) The General Counsel will determine de novo whether the denial of disclosure was in accordance with FOIA and this part.
(2) Unless otherwise ordered by the court, the General Counsel may act on an appeal notwithstanding the pendency of an action for judicial relief in the same matter and, if no appeal has been filed, may treat the pending action as the filing of an appeal.
(c)
(1) Grant the appeal and so advise the requester in writing, in which case the records with respect to which the appeal is granted will promptly be made available to the requester; or
(2) Deny the appeal and so advise the requester in writing with a brief statement of the reasons for the denial, including a reference to the specific exemption(s) authorizing the denial, an explanation of how each such exemption applies to the matter withheld, and notice of the provisions for judicial review in section 552(a)(4) of FOIA. The General Counsel's decision will be the final action of PBGC with respect to the request.
In unusual circumstances (as described in section 552(a)(6)(B) of FOIA), the time to respond to a disclosure request under § 4901.14(a) or an appeal under § 4901.15(b) may be extended as reasonably necessary to process the request or appeal. The Disclosure Officer will notify the requester in writing within the original time period of the unusual circumstances and the date when a response is expected to be sent. When the extension for a disclosure request exceeds 10 working days, the notice will provide the requester with an opportunity to modify the disclosure request or arrange an alternative time period for processing the original or modified request. This notice will also alert the requester of the availability of a PBGC FOIA Public Liaison for assistance and the Office of Government Information Services for dispute resolution services. The maximum extension for responding to an appeal is 10 working days minus the amount of any extension on the request to which the appeal relates.
(a)
(1) The disclosure request or appeal involves circumstances in which the lack of expedited action could reasonably be expected to pose an imminent threat to the life or physical safety of an individual or the loss of an individual's substantial due process rights.
(2) The requester is primarily engaged in disseminating information and the disclosure request or appeal is urgently needed to inform the public about an actual or alleged Federal Government activity.
(b)
(c)
(2)
(3)
If the Disclosure Officer fails to make a determination to grant or deny access to requested records, or the General Counsel does not make a decision on appeal from a denial of access to PBGC records, within the time prescribed (including any extension) for making such determination or decision, the requester's administrative remedies will be deemed exhausted and the requester may apply for judicial relief under FOIA. However, since a court may allow PBGC additional time to act as provided in FOIA, processing of the disclosure request or appeal will continue and PBGC will so advise the requester.
(a)
(b)
(1) Section 552(b)(2) of FOIA, dealing in general with internal agency personnel rules and practices;
(2) Section 552(b)(4) of FOIA, dealing in general with trade secrets and commercial and financial information;
(3) Section 552(b)(5) of FOIA, dealing in general with inter-agency and intra-agency memoranda and letters;
(4) Section 552(b)(6) of FOIA, dealing in general with personnel, medical, and similar files;
(5) Section 552(b)(7) of FOIA, dealing in general with records or information compiled for law enforcement purposes;
(6) Section 552(b)(8) of FOIA, dealing in general with reports on financial institutions; or
(7) Section 552(b)(9) of FOIA, dealing in general with information about wells.
When reviewing a record in response to a disclosure request, PBGC will determine whether another agency is better able to determine whether the record is exempt from disclosure under FOIA. As to any such record, PBGC will proceed in one of the following ways:
(a)
(b)
(2) Whenever PBGC refers any part of the responsibility for responding to a disclosure request to another agency, PBGC will document the referral, maintain a copy of the record that it refers, and notify the requester of the referral, informing the requester of the name(s) of the agency to which the record was referred, including that agency's FOIA office.
The revisions read as follows:
(a)
(1) Access to the information is denied.
(2) The information has been published or officially made available to the public.
(3) Disclosure of the information is required by law other than FOIA.
(4) The designation under paragraph (b) of this section appears obviously frivolous, except that in such a case PBGC will notify the submitter in writing of a determination to disclose the information within a reasonable time before the disclosure date (which shall be specified in the notice).
(e)
The revisions read as follows:
(a)
(1)
(2)
(3)
(4)
(b)
(1)
(ii) A “commercial use” request is a request that asks for information for a use or a purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. PBGC's decision to place a requester in the commercial use category will be made on a case-by-case basis dependent upon on the requester's intended use of the information. PBGC will notify requesters of their placement in this category.
(2)
(ii) A non-commercial scientific institution is an institution that is not operated for a “commercial use” as that term is defined in paragraph (b)(1)(ii) of this section, and which is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry.
(iii) An educational institution is any school that operates a program of scholarly research. A requester in this fee category must show that the request is made in connection with his or her role at the educational institution. PBGC may seek verification from the requester that the request is in furtherance of scholarly research and PBGC will advise requesters of their placement in this category.
(iv)(A) A representative of the news media is any person or entity that gathers information of potential interest to a segment of the public, uses editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term news means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals that disseminate “news” and make their products available through a variety of means to the general public, including news organizations that disseminate solely on the internet. These examples are not intended to be all-inclusive. A “freelance” journalist who demonstrates a solid basis for expecting publication through a news media entity will be considered as a representative of the news media.
(B) To be eligible for inclusion in this category, the request must not be made for a commercial use. A request for records supporting the news dissemination function of the requester who is a representative of the news media will not be considered to be a request that is for a commercial use.
(3)
(d)
(e)
(1) PBGC has determined that unusual circumstances (as defined in section
(i) PBGC has provided timely written notice of this determination to the requester; and
(ii) PBGC has discussed with the requester, or made three or more good-faith attempts to do so, via written mail, electronic mail, or telephone how the requester could effectively limit the scope of the request.
(2) PBGC has determined that unusual circumstances (as defined in section 552(a)(6)(B) of FOIA) apply, PBGC has provided timely written notice to the requester of the unusual circumstances extending the time limit by 10 additional days, and PBGC processes the disclosure request within that time.
(3) A court has determined that exceptional circumstances exist (as defined in section 552(a)(6)(C) of FOIA) and has issued an order excusing PBGC's failure to comply with the time limit.
(a)
(1)
(2)
(b)
(1)
(2)
(3)
The revisions read as follows:
(a)
(b)
(1) Where PBGC estimates or determines that charges allowable under the rules in this subpart, are likely to exceed $250, PBGC may require advance payment of the entire fee or assurance of payment, as follows:
(i) Where the requester has a history of prompt payment of fees under this part, PBGC will notify the requester of the likely cost and obtain satisfactory assurance of full payment; or
(ii) Where the requester has no history of payment for requests made pursuant to FOIA and this part, PBGC may require the requester to make an advance payment of an amount up to the full estimated charges.
The revision reads as follows:
(b) If the Disclosure Officer determines that the request for fee waiver or reduction will be denied, the requester will be so advised in writing with a brief statement of the reasons for the denial. The writing will include the name and title or position of the person(s) responsible for the denial, outline the appeal procedure available, and notify the requester of the right to seek dispute resolution services from a PBGC FOIA Public Liaison or the Office of Government Information Services.
Issued in Washington, DC, by: