Examination and Copying of PBGC Records
| Published date | 13 October 2020 |
| Record Number | 2020-20018 |
| Section | Proposed rules |
| Court | Pension Benefit Guaranty Corporation |
Federal Register, Volume 85 Issue 198 (Tuesday, October 13, 2020)
[Federal Register Volume 85, Number 198 (Tuesday, October 13, 2020)]
[Proposed Rules]
[Pages 64425-64434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20018]
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PENSION BENEFIT GUARANTY CORPORATION
29 CFR Parts 4001 and 4901
RIN 1212-AB44
Examination and Copying of PBGC Records
AGENCY: Pension Benefit Guaranty Corporation.
ACTION: Proposed rule.
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SUMMARY: 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.
DATES: Comments must be submitted on or before December 14, 2020 to be
assured of consideration.
ADDRESSES: Comments may be submitted by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
Email: [email protected]. Include RIN 1212-AB44 in the
subject line.
Mail or Hand Delivery: Regulatory Affairs Division, Office
of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K
Street NW, Washington, DC 20005-4026.
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, http://www.pbgc.gov, including any
personal information provided. Copies of comments may also be obtained
by writing to Disclosure Division, Office of the General Counsel,
Pension Benefit Guaranty Corporation, 1200 K Street
[[Page 64426]]
NW, Washington, DC 20005-4026, or calling 202-326-4040 during normal
business hours. (TTY users may call the Federal Relay Service toll-free
at 800-877-8339 and ask to be connected to 202-326-4040.)
FOR FURTHER INFORMATION CONTACT: Melissa Rifkin
([email protected]), Attorney, Regulatory Affairs Division,
Office of the General Counsel, Pension Benefit Guaranty Corporation,
1200 K Street NW, Washington, DC 20005-4026; 202-326-4400, extension
6563. (TTY users may call the Federal Relay Service toll-free at 800-
877-8339 and ask to be connected to 202-326-4400, extension 6563.)
SUPPLEMENTARY INFORMATION:
Executive Summary
Purpose and Authority
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.
Major Provisions
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.
Background
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.\1\ A 2015 audit by the National Security Archive, a non-
governmental organization, gave PBGC its highest rating and found it to
be among ``the best overall [for] . . . proactively meeting the 21st
Century Standard of posting all or nearly all FOIA releases online.''
\2\ The proposed changes would further improve PBGC's FOIA process and
increase the transparency of its procedures.
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\1\ See Department of Justice, Summary of Agency Chief FOIA
Officer Reports for 2015, 2016, 2017, and 2018. See for 2018,
www.justice.gov/OIP/Reports/2018Summary%26Assessment/download#2018;
for 2017, www.justice.gov/oip/reports/2017_cfo_summary_and_assessment.pdf/download; for 2016,
www.justice.gov/oip/reports/2016_cfo_summary_and_assessment/download; and for 2015, www.justice.gov/oip/2015_cfo_summary_and_assessment.pdf/download.
\2\ See Most Agencies Falling Short on Mandate for Online
Records, The National Security Archive 2015 E-FOIA Audit,
nsarchive2.gwu.edu/NSAEBB/NSAEBB505/.
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Proposed Amendments
Records Available in an Electronic Format
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.'' \3\ PBGC's
Disclosure Division follows this directive and produces disclosable
records in an electronic format, but in several places PBGC's FOIA
regulation refers to the practice of offering paper copies of
documents. PBGC proposes to replace the term ``copy'' in its FOIA
regulation with language conveying that, where practicable, records
covered under the FOIA are available or will be made available in an
electronic, rather than paper, format. Also, PBGC proposes to add in
Sec. 4901.2 a definition of the term ``record'' with a reference to
the statutory definition, which includes information in an electronic
format.
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\3\ Congressional Research Services, Summary of FOIA Improvement
Act of 2016, Public Law 114-185, June 30, 2016.
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Electronic Reading Room
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.\4\
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\4\ See 82 FR 26990 (June 13, 2017).
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PBGC proposes to update Sec. 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.
Submitting a Record Request
PBGC proposes to amend Sec. 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
(i.e., email, online portal) is an approved method to submit a FOIA
request. Third, the proposed amendment would add a statement that a
requester may seek the assistance of a PBGC FOIA Public Liaison and a
description of this position. PBGC's Disclosure Division has designated
FOIA Public Liaisons, as required by FOIA, who will assist requesters
with describing records they are seeking, understanding the status of
requests, and resolving disputes. PBGC proposes this addition to Sec.
4901.11 to highlight the availability of this help.
[[Page 64427]]
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.
Action on 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,\5\ the law that increased the required response period from 10 to
20 days, said, ``Compliance with the 10-day rule is a practical
impossibility for the majority of agencies.'' \6\ Therefore, PBGC
proposes to update the time limit for responding to FOIA requests in
Sec. 4901.14(a) of the FOIA regulation from 10 working days to 20
working days, not including extensions. In practice, PBGC already
follows the time limit permitted under the statute to allow for
thorough and appropriate searches and reviews of agency records.
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\5\ Public Law 104-231.
\6\ S. Rep. 104-272, May 15, 1996.
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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.'' \7\ PBGC's Disclosure Division follows the statute with
respect to tolling the response period, and PBGC proposes to codify
this practice in Sec. 4901.14(a).
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\7\ 153 Cong. Rec. S15701-04, on the OPEN Government Act on
2007, Public Law 110-175.
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Also, PBGC proposes to add to Sec. 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.
Appeals
Under PBGC's procedures, a requester may appeal any adverse
determination by the Disclosure Division. However, Sec. 4901.15(a)
states only that a requester may appeal a denial of a request for
disclosure of information. The proposed amendment to Sec. 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.
Extensions of Time
As provided for in section 552(a)(6)(B) of the FOIA and Sec.
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
Sec. 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.
Expedited Action on Requests and Appeals
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 Sec.
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 Sec. 4901.17 on
exhaustion of administrative remedies to new Sec. 4901.18.
Record of Concern to More Than One Agency
PBGC proposes to modify Sec. 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.
Charges for Services
PBGC proposes to simplify the categories of requesters used to
determine if a requester will be charged fees. Under Sec. 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 Sec.
4901.31(b). The definition of ``commercial use'' would state in
proposed Sec. 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 Sec. 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
[[Page 64428]]
media'' would be updated and clarified in proposed Sec.
4901.31(b)(2)(iv).
Finally, the proposed rule would clarify in proposed Sec.
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.
Fee Schedule
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,\8\
Federal agencies must conform their FOIA fee schedules with OMB's
Uniform Freedom of Information Act Fee Schedule and Guidelines \9\ (OMB
Guidelines). This guidance states, ``Agencies should charge fees that
recoup the full allowable direct costs they incur.'' Direct costs, per
OMB Guidelines, include the salary rate, meaning basic rate of pay plus
16 percent, intended to cover benefits,\10\ of the employee making the
search. Agencies may establish an average rate for the range of grades
typically involved if ``a homogeneous class of personnel is used
exclusively (e.g., all administrative/clerical, or all professional/
executive).''
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\8\ ``[E]ach agency shall promulgate regulations . . .
specifying the schedule of fees applicable to the processing of
requests . . . Such schedule shall conform to the guidelines which
shall be promulgated, pursuant to notice and receipt of public
comment, by the Director of the Office of Management and Budget and
which shall provide for a uniform schedule of fees for all
agencies.''
\9\ 52 FR 10012 (March 27, 1987).
\10\ See id; see also Department of Justice, Office of
Information Policy's Template for Agency FOIA Regulations.
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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 \11\ and have not been raised since. PBGC's current fees
are well below the salary rates of the PBGC employees working on FOIA
requests.
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\11\ See 52 FR 30662 (August 17, 1987).
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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 \12\ for a GS-12, step 5 employee in Washington, DC). The
rate is within the range of fees charged by other agencies for search
and review work by professional personnel.
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\12\ The 16 percent accounts for benefits, per OMB Guidelines.
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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, Sec. 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 Sec. 4901.32(b)(3) and
references to PBGC's provision of a manual copying machine in Sec.
4901.32(b)(4) would be deleted.
Payment of Fees
PBGC proposes changing the list in Sec. 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.
Waiver or Reduction of Charges
Section 552(a)(4)(A)(iii) of the FOIA describes the conditions
necessary to waive FOIA fees.\13\ Because inability to pay is not
described in this provision of the statute, PBGC proposes to delete the
language in Sec. 4901.34(b) of the FOIA regulation, which provides
that the Disclosure Officer may waive or reduce fees based on the
requester's inability to pay. The proposed rule would instead adhere to
the statutory language about when fees may be waived. The proposed rule
would also provide that PBGC will inform the requester in writing that
a fee waiver request was denied and why. This proposed amendment is
intended to increase accuracy and transparency about when fees may be
waived.
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\13\ The conditions under 552(a)(4)(A)(iii) of the FOIA are,
``if disclosure of the information is in the public interest because
it is likely to contribute significantly to public understanding of
the operations or activities of the government and is not primarily
in the commercial interest of the requester.''
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Compliance With Rulemaking Guidelines
Executive Orders 12866, 13563, and 13771
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 Sec. 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 Sec. 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
[[Page 64429]]
their regulatory program for rules that ``may be outmoded, ineffective,
insufficient, or excessively burdensome.'' These rules should be
modified, streamlined, expanded, or repealed as appropriate. PBGC has
identified clarifications, updates, and improvements to this regulation
consistent with the principles for review under Executive Order 13563.
PBGC believes that the proposed changes will provide clearer guidance
to the public.
Regulatory Flexibility Act
The Regulatory Flexibility Act \14\ imposes certain requirements
with respect to rules that are subject to the notice-and-comment
requirements of section 553(b) of the Administrative Procedure Act and
that are likely to have a significant economic impact on a substantial
number of small entities. Unless an agency determines that a proposed
rule is not likely to have a significant economic impact on a
substantial number of small entities, section 603 of the Regulatory
Flexibility Act requires that the agency present an initial regulatory
flexibility analysis at the time of the publication of the proposed
rule describing the impact of the rule on small entities and seek
public comment on such impact. Small entities include small businesses,
organizations, and governmental jurisdictions.
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\14\ 5 U.S.C. 601 et seq.
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Small Entities
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 \15\ and is consistent with
certain requirements in title I of ERISA \16\ and the Internal Revenue
Code (Code),\17\ as well as the definition of a small entity that the
Department of Labor has used for purposes of the Regulatory Flexibility
Act.\18\
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\15\ See, e.g., special rules for small plans under part 4007
(Payment of premiums).
\16\ See, e.g., ERISA section 104(a)(2), which permits the
Secretary of Labor to prescribe simplified annual reports for
pension plans that cover few than 100 participants.
\17\ See, e.g., Code section 430(g)(2)(B), which permits plans
with 100 or fewer participants to use valuation dates other than the
first day of the plan year.
\18\ See, e.g., DOL's final rule on Prohibited Transaction
Exemption Procedures, 76 FR 66,644 (Oct. 27, 2011).
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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 \19\ under the Small Business Act. Therefore, PBGC
requests comments on the appropriateness of the size standard used in
evaluating the impact of the amendments in this proposed rule on small
entities.
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\19\ See, 13 CFR 121.201.
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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.
Paperwork Reduction Act
This document does not contain a collection-of-information
requirement subject to the Paperwork Reduction Act (PRA).
List of Subjects
29 CFR Part 4001
Business and industry, Organization and functions (Government
agencies), Pension insurance, Pensions, Small businesses.
29 CFR Part 4901
Freedom of information.
In consideration of the foregoing, PBGC proposes to amend 29 CFR
parts 4001 and 4901 as follows.
PART 4001--TERMINOLOGY
0
1. The authority citation for part 4001 continues to read as follows:
Authority: 29 U.S.C. 1301, 1302(b)(3).
0
2. Amend Sec. 4001.2 by revising the definition of ``Disclosure
officer'' to read as follows:
Sec. 4001.2 Definitions.
* * * * *
Disclosure Officer means the official designated as Disclosure
Officer in the Office of the General Counsel, PBGC.
* * * * *
PART 4901--DISCLOSURE AND PUBLIC INSPECTION OF PENSION BENEFIT
GUARANTY CORPORATION RECORDS
0
3. The authority citation for part 4901 continues to read as follows:
Authority: 5 U.S.C. 552, 29 U.S.C. 1302(b)(3), E.O. 12600, 52 FR
23781, 3 CFR, 1987 Comp., p. 235.
0
4. Revise the heading of part 4901 to read as set forth above.
0
5. Revise Sec. 4901.1 to read as follows:
Sec. 4901.1 Purpose and scope.
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.
0
6. Amend Sec. 4901.2 by removing ``party,'' from the first sentence,
and adding in alphabetical order a definition for ``Record'' to read as
follows:
Sec. 4901.2 Definitions.
* * * * *
Record has the meaning attributed to it by section 552(f)(2) of
FOIA.
* * * * *
Sec. 4901.3 [Amended]
0
7. Amend Sec. 4901.3 by removing ``The PBGC'' and adding in its place
``PBGC'', and removing ``website'' and adding in its place ``website''.
0
8. Amend Sec. 4901.4 by:
0
a. Removing ``The PBGC shall'' and adding in its place ``PBGC will'' in
the introductory text;
0
b. Removing ``Copies of Federal Register documents published by the
PBGC, and copies of Federal'' and adding in its place ``Federal
Register documents published by PBGC, and Federal'' in paragraph (a);
0
c. Removing ``Copies of informational'' and adding in its place
``Informational'' in paragraph (b);
0
d. Revising paragraphs (c) and (d); and
0
e. Removing ``paragraph (a)(2)'' and adding in its place ``section
552(a)(2)'' in paragraph (e).
The revisions read as follows:
Sec. 4901.4 Information maintained in electronic reading room.
* * * * *
(c) Rulemaking proceedings. All papers and documents made a part of
the official record in administrative proceedings conducted by PBGC in
connection with the issuance, amendment, or revocation of rules and
regulations or determinations having
[[Page 64430]]
general applicability or legal effect with respect to members of the
public or a class thereof;
(d) Other agency proceedings, policies, staff manuals and
instructions, and records. Except to the extent that deletion of
identifying details is required to prevent a clearly unwarranted
invasion of personal privacy (in which case PBGC will explain in
writing the justification for the deletion)--
(1) Adjudication proceedings. Final opinions, orders, and (except
to the extent that an exemption provided by FOIA must be asserted in
the public interest to prevent a clearly unwarranted invasion of
personal privacy or violation of law or to ensure the proper discharge
of the functions of PBGC) other papers and documents made a part of the
official record in adjudication proceedings conducted by PBGC;
(2) Policy statements and interpretations. Statements of policy and
interpretations affecting a member of the public which have been
adopted by PBGC and which have not been published in the Federal
Register;
(3) Staff manuals and instructions. Administrative staff manuals
and instructions to staff issued by PBGC that affect any member of the
public;
(4) Frequently requested records. Records that have been released
under section 552(a)(3) of FOIA and have been the subject of three or
more disclosure requests; and
(5) Other records. Records that have been released under section
552(a)(3) of FOIA and that PBGC determines, because of the nature of
the records' subject matter, have become or are likely to become the
subject of subsequent disclosure requests for substantially the same
records; and
* * * * *
0
9. Revise Sec. 4901.5 to read as follows:
Sec. 4901.5 Disclosure of other information.
(a) In general. Upon the request of any person submitted in
accordance with subpart B of this part, the Disclosure Officer will
make any document (or portion thereof) from the records of PBGC in the
custody of any official of PBGC available for inspection unless PBGC
reasonably foresees that disclosure would harm an interest protected by
an exemption under the provisions of section 552(b) of FOIA and subpart
C of this part or disclosure is otherwise prohibited by law. The
procedures in subpart B of this part must be used for records that are
not made available in PBGC's electronic reading room under Sec. 4901.4
and may be used for records that are available in the electronic
reading room. Records are not records of PBGC and are not required to
be furnished under FOIA, if they could only be produced by manipulation
of existing information (such as computer analyses of existing data),
thus creating information not previously in existence.
(b) Discretionary disclosure. Unless prohibited from disclosure by
Sec. 4901.21(a), the Disclosure Officer may make any document (or
portion thereof) from the records of PBGC available for inspection if
the Disclosure Officer determines that disclosure furthers the public
interest and does not impede the discharge of any of the functions of
PBGC.
0
10. Revise Sec. 4901.6 to read as follows:
Sec. 4901.6 Filing rules; computation of time.
(a) Place, method, and date of filing. (1) For rules about where to
file a submission under this part with PBGC, see Sec. 4000.4 of this
chapter.
(2) For rules about permissible methods of filing with PBGC under
this part, see Sec. 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) Computation of time. For rules about any time period under this
part, see subpart D of part 4000 of this chapter.
0
11. Revise Sec. 4901.11 to read as follows:
Sec. 4901.11 Submission of requests for access to records.
(a) In general. A request to inspect any record subject to this
subpart must be submitted in writing to the Disclosure Officer, Pension
Benefit Guaranty Corporation, by mail, in-person delivery, or
electronic telecommunication in accordance with the FOIA instructions
on PBGC's website, www.pbgc.gov. To facilitate processing, ``FOIA
request'' should appear prominently on the request.
(b) Assistance with requests. A person who intends to submit or has
submitted a request to inspect any record subject to this subpart may
at any time seek assistance from a FOIA Public Liaison listed on PBGC's
website, www.pbgc.gov. PBGC's FOIA Public Liaisons are responsible for
assisting in reducing delays, increasing transparency and understanding
of the status of requests, and assisting in the resolution of disputes.
0
12. Amend Sec. 4901.12 by:
0
a. Removing ``Each request'' and adding in its place ``Each disclosure
request'' in paragraph (a);
0
b. Revising paragraph (b); and
0
c. Removing ``Requests calling'' and adding in its place ``Disclosure
requests calling''; removing ``paragraph (a)(3)'' and adding in its
place ``section 552(a)(3)''; removing ``the PBGC'' and adding in its
place ``PBGC''; and removing ``disclosure officer shall'' and adding in
its place ``Disclosure Officer will'' in paragraph (c).
The revision reads as follows:
Sec. 4901.12 Description of information requested.
* * * * *
(b) Deficient descriptions. (1) If the description is insufficient
to enable a professional employee familiar with the subject area of the
disclosure request to locate the record with a reasonable amount of
effort, the Disclosure Officer will notify the requester and, to the
extent possible, indicate the additional information required. PBGC
will make every reasonable effort to assist a requester in the
identification and location of the record or records sought. PBGC will
not withhold records merely because of difficulty in finding them.
(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.
* * * * *
0
13. Revise Sec. 4901.13 to read as follows:
Sec. 4901.13 Receipt by agency of request.
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 Sec. 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 Sec. 4901.12;
(b) Payment or assurance of payment if required under Sec.
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
[[Page 64431]]
acceptable either in any amount or up to a specified amount. To avoid
possible delay, a requester may include such a statement in an initial
disclosure request.
0
14. Revise Sec. 4901.14 to read as follows:
Sec. 4901.14 Action on request.
(a) Time for action. Promptly and in any event within 20 working
days after receipt of a disclosure request (subject to extension under
Sec. 4901.16), the Disclosure Officer will take action with respect to
each requested item (or portion of an item) under either paragraph (b),
(c), or (d) of this section. Following receipt, PBGC may ask the
requester for information once and toll the 20-day period until PBGC
receives such information.
(b) Request granted. If the Disclosure Officer determines that the
disclosure request will be granted, PBGC will so advise the requester
and will promptly make the records available to the requester. PBGC
will accommodate any specification of the preferred form or format for
the sought record as stated in the request, if the record is readily
reproducible in the preferred form or format.
(c) Request denied. If the Disclosure Officer determines that the
disclosure request will be denied, PBGC will so advise the requester in
writing with a brief statement of the reasons for the denial,
including, if applicable, a reference to the specific exemption(s)
authorizing the denial and an explanation of how each such exemption
applies to the matter withheld.
(d) Records not located. If the Disclosure Officer determines that,
despite a reasonably calculated search to uncover all relevant
documents, the requested records could not be located, PBGC will issue
a ``no-records'' response, and so advise the requester in writing.
(e) Information for requester. Written responses issued under
paragraph (c) or (d) of this section will include the name and title 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.
0
15. Amend Sec. 4901.15 by:
0
a. Revising paragraphs (a) through (c); and
0
b. Removing ``shall'' and adding in its place ``will''; and removing
``the PBGC's public reference'' and adding in its place ``PBGC's
electronic reading'' in paragraph (d).
The revisions read as follows:
Sec. 4901.15 Appeals from denial of requests.
(a) Submittal of appeals. A requester may appeal any adverse
determination by the Disclosure Officer of a request under FOIA,
including a denial of a request for access to records, expedited
action, or fee waiver. The requester may file a written appeal within
90 days from the date of the denial or, in the case of a partial
denial, 90 days from the date the requester receives the disclosed
material. The appeal must include the grounds for appeal and any
supporting statements or arguments. The requester must address the
appeal to the General Counsel, Pension Benefit Guaranty Corporation,
and must submit the appeal by mail, in-person delivery, or electronic
telecommunication in accordance with the FOIA instructions on PBGC's
website, www.pbgc.gov. To facilitate processing, the words ``FOIA
appeal'' should appear prominently on the appeal.
(b) Receipt and consideration of appeal. The General Counsel will
note the date and time of receipt on each appeal and notify the
requester thereof. Within 20 working days after receipt of an appeal
(subject to extension under Sec. 4901.16), the General Counsel will
issue a decision on the appeal.
(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) Decision on appeal. As to each item (or portion of an item)
whose nondisclosure is appealed, the General Counsel will either--
(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.
* * * * *
0
16. Revise Sec. 4901.16 to read as follows:
Sec. 4901.16 Extensions of time.
In unusual circumstances (as described in section 552(a)(6)(B) of
FOIA), the time to respond to a disclosure request under Sec.
4901.14(a) or an appeal under Sec. 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.
0
17. Revise Sec. 4901.17 to read as follows:
Sec. 4901.17 Expedited action on requests and appeals.
(a) In general. Upon a request submitted in accordance with
paragraph (b) of this section, PBGC will expedite a disclosure request
under Sec. 4901.11 or an appeal under Sec. 4901.15 if PBGC determines
that the requester has demonstrated one of the following:
(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) Timing and method of request. A request for PBGC to expedite a
disclosure request or an appeal may be made at any time and must be
made by mail, in-person delivery, or electronic telecommunication in
accordance with the FOIA instructions on PBGC's website, www.pbgc.gov.
(c) Action on request. (1) PBGC will notify the requester within 10
calendar days of receipt of a request for expedited action whether PBGC
will expedite a disclosure request or an appeal.
[[Page 64432]]
(2) Request granted. If PBGC determines that the request for
expedited action will be granted, PBGC will take action on the
disclosure request or the appeal as soon as practicable.
(3) Request denied. If PBGC determines that the request for
expedited action will be denied, PBGC will so advise the requester in
writing with a brief statement of the reasons for the denial. The
writing will also 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. PBGC will act on any appeal of that
decision expeditiously.
0
18. Add Sec. 4901.18 to read as follows:
Sec. 4901.18 Exhaustion of administrative remedies.
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.
0
19. Revise Sec. 4901.21 to read as follows:
Sec. 4901.21 Restrictions in general.
(a) Records not disclosable. PBGC will not disclose records to the
extent prohibited by section 552(b)(1) or (3) of FOIA, sections 4010
and 4043 of ERISA, or other statutes.
(b) Records disclosure of which may be refused. Unless prohibited
from disclosure by paragraph (a) of this section, PBGC need not but
may, as provided in Sec. 4901.5(b), disclose records exempted from
FOIA, which include as of [EFFECTIVE DATE OF THE FINAL RULE] records
under:
(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.
Sec. 4901.22 [Amended]
0
20. Amend Sec. 4901.22 by removing ``shall not'' and adding in its
place ``will not'' in the first sentence, and removing ``shall be'' and
adding in its place ``will be'' in the second sentence.
0
21. Revise Sec. 4901.23 to read as follows:
Sec. 4901.23 Record of concern to agency other than PBGC.
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) Consultation with another agency. When the record contains
information of interest to another agency, PBGC will make a release
determination only if its interest in the record is the primary
interest and only after PBGC consults with that agency.
(b) Referral to another agency. (1) When an agency other than PBGC
has primary interest in the record, then PBGC will refer the
responsibility for responding to the disclosure request regarding that
record to that agency.
(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.
0
22. Amend Sec. 4901.24 by:
0
a. Revising the section heading and paragraph (a);
0
b. Removing ``submitter shall'' and adding in its place ``submitter
must''; removing ``paragraph shall'' and adding in its place
``paragraph will''; and removing ``therefor'' in paragraph (b);
0
c. Removing ``disclosure officer'' and adding in its place ``Disclosure
Officer''; removing ``Counsel shall'' and adding in its place ``Counsel
will''; and removing ``requester shall'' and adding in its place
``requester will'' in paragraph (c);
0
d. Removing ``disclosure should'' and adding in its place ``disclosure
must''; removing ``subsection (b)'' and adding in its place ``section
552(b)''; removing ``paragraph (b)(4) of FOIA'' and adding in its place
``section 552(b)(4)''; removing ``asserted should'' and adding in its
place ``asserted must''; and removing ``shall'' and adding in its place
``will'' in paragraph (d);
0
e. Revising paragraph (e); and
0
f. Removing ``disclosure officer'' and adding in its place ``Disclosure
Officer''; and removing ``Counsel shall'' and adding in its place
``Counsel will'' in paragraph (f).
The revisions read as follows:
Sec. 4901.24 Special rules for trade secrets and confidential
commercial or financial information submitted to PBGC.
(a) Application. To the extent permitted by law, this section
applies to a request for disclosure of a record that contains
information that has been designated by the submitter in good faith in
accordance with paragraph (b) of this section or a record that PBGC has
reason to believe contains such information, unless one of the
following applies:
(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) Notification to submitter of decision to disclose. If the
Disclosure Officer or (where disclosure is in response to an appeal)
the General Counsel decides to disclose information subject to this
section despite the submitter's objections, the Disclosure Officer (or
General Counsel) will give the submitter written notice, explaining
briefly why the information is to be disclosed despite those
objections, describing the information to be disclosed, and specifying
the date when the information will be disclosed to the requester. The
notification will, to the extent permitted by law, be provided a
reasonable number of days before the disclosure date so specified, and
a copy will be provided to the requester.
* * * * *
0
23. Amend Sec. 4901.31 by:
0
a. Revising paragraphs (a) and (b);
0
b. Removing ``the PBGC reasonably'' and adding in its place ``PBGC
reasonably''; removing ``the PBGC will'' and adding in its place ``PBGC
will''; and removing ``will the PBGC'' and
[[Page 64433]]
adding in its place ``will PBGC'' in paragraph (c); and
0
c. Revising paragraphs (d) and (e).
The revisions read as follows:
Sec. 4901.31 Charges for services.
(a) In general. Pursuant to the provisions of section 552 of FOIA,
as amended, PBGC will assess charges to cover the direct costs of
searching for, reviewing, and/or duplicating records requested under
FOIA, except where the charges are limited or waived under paragraph
(b) or (d) of this section, according to the fee schedule in Sec.
4901.32. No charge will be assessed if the costs of routine collection
and processing of the fee would be equal to or greater than the fee
itself. Except as provided in paragraph (e) of this section, no charge
for searching (or in the case of a requester described under section
552(a)(4)(A)(ii)(II) of FOIA, for duplication) will be assessed if PBGC
has failed to comply with any time limit under section 552(a)(6) of
FOIA.
(1) Direct costs means those expenditures which PBGC actually
incurs in searching for and duplicating (and in the case of commercial
requesters, reviewing) documents to respond to a disclosure request
under FOIA and this part. Not included in direct costs are overhead
expenses such as costs of space, and heating or lighting the facility
in which the records are stored.
(2) Search means all time spent looking for material that is
responsive to a disclosure request under FOIA and this part, including
page-by-page or line-by-line identification of materials within a
document, if required. Searches may be done manually or by computer
using existing programming. Search is distinguishable from ``review''
which is defined in paragraph (a)(3) of this section.
(3) Review means the process of examining documents located in
response to a disclosure request under FOIA and this part to determine
whether any portion of any document located is permitted or required to
be withheld. It also includes processing any documents for disclosure,
e.g., doing all that is necessary to redact them and otherwise prepare
them for release. Review does not include time spent resolving general
legal or policy issues regarding the application of exemptions.
(4) Duplication means the process of making a copy of a document
necessary to respond to a disclosure request under FOIA and this part,
in a form that is reasonably usable by the requester. Copies can take
the form of paper copy, audio-visual materials, or electronic records,
among others.
(b) Categories of requesters. For purposes of assessing fees,
requesters who seek access to records under FOIA and this part are
divided into three categories: Commercial use requesters, non-
commercial scientific or educational institutions or news media
requesters, and all other requesters. PBGC will determine the category
of a requester and charge fees according to the following rules.
(1) Commercial use requesters. (i) When records are requested for
commercial use, PBGC will assess charges, as provided in this subpart,
for the full direct costs of searching for, reviewing for release, and
duplicating the records sought. Fees for search and review may be
charged even if the record searched for is not found or if, after it is
found, it is determined that the request to inspect it may be denied
under section 552(b) of FOIA and this part.
(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) Non-commercial scientific or educational institutions, or news
media requesters. (i) When records are requested by a non-commercial
scientific or educational institution or a news media requestor, PBGC
will assess charges, as provided in this subpart, for the full direct
cost of duplication only, excluding charges for the first 100 pages.
(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) All other requesters. When records are requested by requesters
who do not fit into any of the categories in paragraph (b)(1) or (2) of
this section, PBGC will assess charges, as provided in this subpart,
for the full direct cost of searching for and duplicating the records
sought, with the exceptions that there will be no charge for the first
100 pages of duplication and the first two hours of search time.
Notwithstanding the preceding sentence, there will be no charge for
search time in the event of requests under the Privacy Act of 1974 from
subjects of records filed in PBGC's systems of records for the
disclosure of records about themselves. Search fees, where applicable,
may be charged even if the record sought is not found.
* * * * *
(d) Waiver or reduction of charges. Circumstances under which any
fee listed in Sec. 4901.32 may be waived or reduced are set forth in
Sec. 4901.34.
(e) Unusual or exceptional circumstances. Notwithstanding paragraph
(a) of this section, if PBGC fails to comply with a time limit under
section 552(a)(6) of FOIA, PBGC may nevertheless assess a charge for
search and review services (or in the case of a requester described
under section 552(a)(4)(A)(ii)(II), for duplication) if one of the
following circumstances applies:
(1) PBGC has determined that unusual circumstances (as defined in
section
[[Page 64434]]
552(a)(6)(B) of FOIA) apply, PBGC needs more than 10 additional days to
process the disclosure request, and more than 5,000 pages are necessary
to respond to the request, provided that:
(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.
0
24. Amend Sec. 4901.32 by revising paragraphs (a) and (b) to read as
follows:
Sec. 4901.32 Fee schedule.
(a) Charges for searching and review of records. Charges applicable
under this subpart to the search for and review of records will be made
according to the following fee schedule:
(1) Search time and review time. For ordinary search services and
review services, PBGC charges $54.00 per hour. PBGC charges fees in
quarter hour increments.
(2) Retrieving records stored by NARA. For disclosure requests that
require the retrieval of records stored at a Federal records center
operated by the National Archives and Records Administration (NARA),
PBGC charges additional costs in accordance with the Transactional
Billing Rate Schedule established by NARA.
(b) Charges for duplication of records. Charges applicable under
this subpart for obtaining requested copies of records made available
for inspection will be made according to the following fee schedule and
subject to the following conditions.
(1) Standard copying fee. $0.15 for each page of record copies
furnished.
(2) Voluminous material. If the volume of page copy desired by the
requester is such that the reproduction charge at the standard page
rate would be in excess of $50, the person desiring reproduction may
request a special rate quotation from PBGC.
(3) Indexes. Pursuant to section 552(a)(2) of FOIA copies of
indexes or supplements thereto which are maintained as therein provided
but which have not been published will be provided on request at a cost
not to exceed the direct cost of duplication.
* * * * *
0
25. Amend Sec. 4901.33 by:
0
a. Revising paragraphs (a), (b) introductory text, and (b)(1);
0
b. Removing ``the PBGC may'' and adding in its place ``PBGC may'' in
paragraph (b)(2); and
0
c. Removing ``The PBGC may'' and adding in its place ``PBGC may'' in
paragraph (c).
The revisions read as follows:
Sec. 4901.33 Payment of fees.
(a) Medium of payment. Payment of the applicable fees as provided
in this section must be made by check, money, or other PBGC permitted
method, and in accordance with the FOIA instructions on PBGC's website,
www.pbgc.gov.
(b) Advance payment or assurance of payment. Payment or assurance
of payment before work is begun or continued on a disclosure request
may be required as follows:
(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.
* * * * *
0
26. Amend Sec. 4901.34 by:
0
a. Removing ``disclosure officer'' and adding in its place ``Disclosure
Officer''; removing ``government'' and adding in its place
``Government''; removing ``waiver request shall'' and adding in its
place ``waiver or reduction request must''; and removing ``request for
waiver'' and adding in its place ``request'' in paragraph (a); and
0
b. Revising paragraph (b).
The revision reads as follows:
Sec. 4901.34 Waiver or reduction of charges.
* * * * *
(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:
Gordon Hartogensis,
Director, Pension Benefit Guaranty Corporation.
[FR Doc. 2020-20018 Filed 10-9-20; 8:45 am]
BILLING CODE 7709-02-P
