Procedures for PBGC Guidance Documents

 
CONTENT
Federal Register, Volume 85 Issue 166 (Wednesday, August 26, 2020)
[Federal Register Volume 85, Number 166 (Wednesday, August 26, 2020)]
[Rules and Regulations]
[Pages 52481-52483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17952]
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PENSION BENEFIT GUARANTY CORPORATION
29 CFR Part 4908
RIN 1212-AB49
Procedures for PBGC Guidance Documents
AGENCY: Pension Benefit Guaranty Corporation.
ACTION: Final rule.
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SUMMARY: This final rule sets forth the Pension Benefit Guaranty
Corporation's (PBGC) procedures for issuing PBGC guidance documents as
required by an Executive order entitled ``Promoting the Rule of Law
Through Improved Agency Guidance Documents.''
DATES: Effective date: This final rule is effective on August 26, 2020.
FOR FURTHER INFORMATION CONTACT: Hilary Duke ([email protected]),
Assistant General Counsel for Regulatory Affairs, Office of the General
Counsel, 1200 K Street NW, Washington, DC 20005-4026, 202-229-3839; or
Karen B. Levin ([email protected]), Attorney, Regulatory Affairs
Division, Office of the General Counsel, Pension Benefit Guaranty
Corporation, 1200 K Street NW, Washington, DC 20005-4026, 202-229-3559.
TTY users may call the Federal Relay service toll-free at 800-877-8339
and ask to be connected to 202-229-3559.
SUPPLEMENTARY INFORMATION:
Executive Summary
Purpose and Authority
 This final rule adds to the Code of Federal Regulations a new 29
CFR part 4908, which implements the requirements of Executive Order
(E.O.) 13891, ``Promoting the Rule of Law Through Improved Agency
Guidance Documents.'' \1\ E.O. 13891 requires agencies to set forth
processes and procedures for issuing guidance documents.
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 \1\ 84 FR 55235 (October 9, 2019).
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 PBGC's legal authority for this action comes from section
4002(b)(3) of the Employee Retirement Income Security Act of 1974
(ERISA), which authorizes PBGC to issue regulations to carry out the
purposes of title IV of ERISA, and from E.O. 13891.
Major Provisions
 The final rule provides the following procedures:
 Guidance documents will include specified information,
including a statement that a guidance document does not bind the
public, and will be posted at www.pbgc.gov/guidance.
 Significant guidance documents will have a 30-day public
notice and comment period, be reviewed by the Office of Management and
Budget (OMB), and meet other requirements.
 Members of the public may request withdrawal or
modification of a guidance document.
Background
 On October 9, 2019, the President issued Executive Order (E.O.)
13891, ``Promoting the Rule of Law Through Improved Agency Guidance
Documents.'' Central principles of E.O. 13891 are that the American
public should only be subject to binding rules imposed through duly
enacted statutes or through regulations that are lawfully promulgated,
and that Americans should have fair notice of any such obligations.
Section 4 of the order directs that, ``[w]ithin 300 days of the date on
which [the Office of Management and Budget] issues an implementing
memorandum under section 6 of this order, each agency shall, consistent
with applicable law, finalize regulations, or amend existing
regulations as necessary, to set forth processes and procedures for
issuing guidance documents.'' On October 31, 2019, OMB issued OMB
Memorandum M-20-02,\2\ which provides agencies with instructions for
complying with the requirements of E.O. 13891 (``OMB Memo M-20-02'').
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 \2\ M-20-02, Guidance Implementing Executive Order 13891, Titled
``Promoting the Rule of Law Through Improved Agency Guidance
Documents'' (October 31, 2019) available at https://www.whitehouse.gov/wp-content/uploads/2019/10/M-20-02-Guidance-Memo.pdf.
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 In accordance with OMB's direction, PBGC is amending title 29,
chapter 40, subchapter L of the Code of Federal Regulations by adding a
new part 4908, ``Procedures for PBGC Guidance Documents.'' These new
regulations codify the requirements set forth in section 4 of E.O.
13891.
Compliance With Rulemaking Guidelines
 This is a rule of ``agency organization, procedure or practice''
and is limited to ``agency organization, management, or personnel
matters.'' The final rule provides PBGC's procedures for issuing
guidance documents. Accordingly, this rule is exempt from notice and
public comment requirements under 5 U.S.C. 553(b) and the requirements
of Executive Order 12866 and Executive Order 13771.\3\ Because no
general notice of proposed rulemaking is required, the Regulatory
Flexibility Act does not apply to this rule. See 5 U.S.C. 601(2), 603,
605.
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 \3\ See section 3(d)(3) of Executive Order 12866 and section
4(b) of Executive Order 13771.
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 PBGC finds good cause exists for making the additions set forth in
this final rule effective less than 30 days after publication because
the additions support PBGC's procedures for issuing guidance documents
in compliance with the deadlines in E.O. 13891 and OMB Memo M-20-02.
List of Subjects in 29 CFR Part 4908
 Administrative practice and procedure, Employee benefit plans,
Organization and functions (Government agencies), Pension insurance.
 For the reasons given above, PBGC amends title 29, chapter 40,
subchapter L of the Code of Federal Regulations by adding part 4908 to
read as follows:
PART 4908--PROCEDURES FOR PBGC GUIDANCE DOCUMENTS
Sec.
4908.1 Purpose and scope.
4908.2 Definitions.
4908.3 Procedures for issuing guidance documents.
4908.4 Procedures for issuing significant guidance documents.
4908.5 Public access to guidance documents.
4908.6 Procedures for requests from the public to withdraw or modify
a guidance document.
 Authority: 29 U.S.C. 1302(b)(3), E.O. 13891, 84 FR 55235, 3 CFR,
2019 Comp., p. 371.
Sec. 4908.1 Purpose and scope.
 This part provides general procedures that apply to PBGC guidance
documents.
[[Page 52482]]
Sec. 4908.2 Definitions.
 In addition to the terminology in part 4001 of this chapter, as
used in this part--Director means the Director of PBGC.
 Guidance document means an agency statement of general
applicability, intended to have future effect on the behavior of
regulated parties, that sets forth a policy on a statutory, regulatory,
or technical issue, or an interpretation of a statute or regulation,
but does not include, for example, the following:
 (1) Statements of specific applicability, including advisory or
legal opinions directed to particular parties about circumstance-
specific questions (e.g., case or investigatory letters responding to
complaints, warning letters), notices regarding particular locations or
facilities (e.g., guidance pertaining to the use, operation, or control
of a Government facility or property), and correspondence with
individual persons or entities (e.g., congressional correspondence or
notices of violation), except documents ostensibly directed to a
particular party but designed to guide the conduct of the broader
regulated public;
 (2) Statements that do not set forth a policy on a statutory,
regulatory, or technical issue or an interpretation of a statute or
regulation, including speeches and individual presentations,
editorials, media interviews, press materials, or congressional
testimony that do not set forth for the first time a new regulatory
policy;
 (3) Rules promulgated pursuant to notice and comment under section
553 of title 5, United States Code, or similar statutory provisions;
 (4) Rules exempt from rulemaking requirements under section 553(a)
of title 5, United States Code;
 (5) Rules of agency organization, procedure, or practice;
 (6) Decisions of agency adjudications under section 554 of title 5,
United States Code, or similar statutory provisions;
 (7) Internal guidance directed to the issuing agency or other
agencies that is not intended to have substantial future effect on the
behavior of regulated parties or the public;
 (8) Legal briefs, other court filings, or positions taken in
litigation or enforcement actions;
 (9) Contract solicitations or awards; or
 (10) Internal executive branch legal advice or legal advisory
opinions addressed to executive branch officials.
 OMB means the Office of Management and Budget.
 Significant guidance document means a guidance document that may
reasonably be anticipated to:
 (1) Lead to an annual effect on the economy of $100 million or more
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
 (2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
 (3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
 (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles of Executive
Order 12866.
Sec. 4908.3 Procedures for issuing guidance documents.
 (a) Required elements of guidance documents. A PBGC guidance
document will comply with all relevant statutes and regulations and
include, at a minimum, all of the following:
 (1) The term ``guidance;''
 (2) Identification of PBGC as the agency issuing the guidance
document;
 (3) Identification of the activities to which and the persons to
whom the guidance document applies;
 (4) The date of issuance;
 (5) A statement if it is a revision to a previously issued guidance
document and, if so, identification of the guidance document that it
replaces;
 (6) The title of the guidance document and a unique identification
number;
 (7) The citation to the statutory provision or regulation (in Code
of Federal Regulations format) to which it applies or which it
interprets;
 (8) A short summary of the subject matter covered in the guidance
document at the top of the document; and
 (9) A prominent statement that ``The contents of this document do
not have the force and effect of law and are not meant to bind the
public in any way. This document is intended only to provide clarity to
the public regarding existing requirements under the law or PBGC
policies.'' PBGC will modify the statement to reflect when the guidance
document is authorized by law or incorporated into a contract.
 (b) Plain English requirement. Guidance documents will be written
in plain English and avoid using mandatory language, such as ``shall,''
``must,'' ``required,'' or ``requirement,'' unless the language is
describing an established statutory or regulatory requirement, is
authorized by law, or is addressed to PBGC staff and will not foreclose
PBGC's consideration of positions advanced by affected private parties.
 (c) Review and clearance procedures--(1) In general. All guidance
documents proposed to be issued will be reviewed and cleared by the
General Counsel, in consultation with the Chief Policy Officer and the
Director.
 (2) OMB significance determination. Before issuance, unless waived
by OMB, PBGC will send a guidance document to OMB for it to determine
whether the guidance document is a significant guidance document within
the meaning of Executive Order 13891. Requests for waivers will be
approved by the Director.
 (3) Nonsignificant guidance documents. If OMB determines that a
guidance document is not a significant guidance document, PBGC will
post the guidance document at www.pbgc.gov/guidance.
 (4) Significant guidance documents. If OMB determines that a
guidance document is a significant guidance document, PBGC will follow
the procedures in Sec. 4908.4.
Sec. 4908.4 Procedures for issuing significant guidance documents.
 (a) Procedures for proposed significant guidance documents--(1) In
general. If OMB determines that a guidance document is a significant
guidance document within the meaning of Executive Order 13891, the
procedures in this section will apply unless otherwise agreed to by OMB
and PBGC. PBGC will demonstrate to OMB how a significant guidance
document complies with Executive Orders 12866, 13563, 13609, 13771, and
13777, as applicable.
 (2) OMB review. If requested by OMB, PBGC will submit a proposed
significant guidance document to OMB for review under Executive Order
12866 before issuance.
 (3) Notice and comment. Except when PBGC for good cause finds that
notice and public comment are impracticable, unnecessary, or contrary
to the public interest (and incorporates the finding and a brief
statement of reasons for the finding into the significant guidance
document), PBGC will--
 (i) Publish a notice in the Federal Register announcing the
availability of a proposed significant guidance document and a 30-day
public notice and comment period; and
 (ii) Provide an electronic method for the public to comment on the
significant guidance document.
[[Page 52483]]
 (b) Procedures for final significant guidance documents--(1) In
general. PBGC will submit a final significant guidance document to OMB
for review under Executive Order 12866 before issuance.
 (2) Response to comments. PBGC will provide a public response to
comments on a proposed significant guidance document either in a final
significant guidance document or in a companion document that addresses
major concerns raised in comments.
 (c) Issuance. All proposed and final significant guidance documents
will be signed by the Director on a non-delegable basis and posted at
www.pbgc.gov/guidance.
Sec. 4908.5 Public access to guidance documents.
 (a) In general. PBGC will maintain on PBGC's public website a
single, searchable, indexed database that contains, or links to PBGC's
guidance documents at www.pbgc.gov/guidance. Any guidance document
posted on the database is final unless it is a proposed significant
guidance document under Sec. 4908.4.
 (b) Nonbinding effect. The database described in paragraph (a) of
this section will state that guidance documents do not have the force
and effect of law, unless expressly authorized by statute or
incorporated into a contract and are not meant to bind the public in
any way.
 (c) Rescinded guidance documents. All guidance documents that are
not posted on the database described in paragraph (a) of this section
are considered rescinded. PBGC will not cite, use, or rely upon any
guidance document that is rescinded, except to establish historical
facts.
 (d) Withdrawal. When PBGC withdraws a guidance document, PBGC will
remove the hyperlink to the guidance document from the database and
will clearly identify the guidance document as withdrawn. The name,
title, unique identifier, and date of withdrawal will be listed on the
database for at least one year after withdrawal.
Sec. 4908.6 Procedures for requests from the public to withdraw or
modify a guidance document.
 (a) In general. A member of the public may petition PBGC in writing
for withdrawal or modification of an existing guidance document issued
by PBGC.
 (b) Petition instructions. PBGC will provide clear instructions on
its website regarding how to submit petitions for withdrawal or
modification of any guidance document at www.pbgc.gov/guidance. These
instructions will include an email address, a physical mailing address
for hard copy petitions, and the office responsible for coordinating
responses to petitions. PBGC will clearly identify the General Counsel
as the designated PBGC official to whom petitions should be directed at
[email protected].
 (c) Contents of petition. A petition must--
 (1) Specify the petitioner's name and a means for PBGC to contact
the petitioner, such as an email address or a mailing address;
 (2) Identify the guidance document that is the subject of the
petition;
 (3) Present any information and arguments in support of the request
for withdrawal or modification of the guidance document, including any
specific circumstances in which the guidance document is incorrect or
obsolete; and
 (4) Be directed to the designated PBGC official.
 (d) Response. In response to a petition, the General Counsel, in
consultation with the Chief Policy Officer and the Director, will
determine whether to withdraw, modify, or retain a guidance document.
PBGC will respond to a petition promptly, but no later than 90 days
after receiving the petition. If PBGC withdraws a guidance document in
response to a petition, PBGC will follow the procedures in Sec.
4908.5(d) and post a response to the petition on its guidance database.
 Issued in Washington, DC.
Gordon Hartogensis,
Director, Pension Benefit Guaranty Corporation.
[FR Doc. 2020-17952 Filed 8-25-20; 8:45 am]
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