[Federal Register Volume 73, Number 129 (Thursday, July 3, 2008)]
[Rules and Regulations]
[Pages 38117-38120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-15196]


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PENSION BENEFIT GUARANTY CORPORATION

29 CFR Part 4003

RIN 1212-AB15


Rules for Administrative Review of Agency Decisions

AGENCY: Pension Benefit Guaranty Corporation.

ACTION: Final rule.

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SUMMARY: Pension Benefit Guaranty Corporation (PBGC) is amending its 
regulation on Administrative Review of Agency Decisions to clarify that 
the agency's Appeals Board may refer certain categories of appeals to 
other PBGC departments for a written response and to remove 
determinations under section 4022A of the Employee Retirement Income 
Security Act of 1974 (ERISA) from the scope of part 4003. The 
amendments also include minor clarifying and technical changes to the 
rules for administrative review of agency decisions.

DATES: Effective August 4, 2008.

FOR FURTHER INFORMATION CONTACT: Joseph J. Shelton, Attorney, Office of 
the General Counsel or Catherine B. Klion, Manager, Regulatory and 
Policy Division, Legislative and Regulatory Department, Pension Benefit 
Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005-4026; 
202-326-4024. (TTY/TDD users may call the Federal relay service toll-
free at 1-800-877-8339 and ask to be connected to 202-326-4024.)

SUPPLEMENTARY INFORMATION: On October 18, 2007, PBGC published (at 72 
FR 59050) a proposed rule to amend

[[Page 38118]]

PBGC's regulation on Administrative Review of Agency Decisions (29 CFR 
part 4003) to clarify that the agency's Appeals Board may refer certain 
categories of appeals to other PBGC departments for a written response, 
remove determinations under section 4022A of ERISA from the scope of 
part 4003, and make minor clarifying and technical changes to the rules 
for administrative review of agency decisions. PBGC received no public 
comments on the proposed rule and is finalizing the regulation as 
proposed.

Background

Current Rules for Administrative Review of Agency Decisions

    PBGC administers the pension plan termination insurance program 
under Title IV of ERISA. Under PBGC's regulation for Administrative 
Review of Agency Decisions, persons aggrieved by certain PBGC 
determinations may appeal to the agency's Appeals Board. 29 CFR part 
4003.
    The powers of the Appeals Board are set forth in, among other 
places, Sec.  4003.58 of the regulations. It states that ``the Appeals 
Board may request the submission of any information or the appearance 
of any person it considers necessary to resolve a matter before it and 
to enter any order it considers necessary for or appropriate to the 
disposition of any matter before it.'' 29 CFR 4003.58. The decision of 
the Appeals Board constitutes final agency action by PBGC with respect 
to the determination which was the subject of the appeal and is binding 
on all parties who participated in the appeal. 29 CFR 4003.59(b).
    The Appeals Board reviews the following categories of 
determinations:
     Determinations that a plan is not covered under section 
4021 of ERISA;
     Determinations under section 4022(a) or (c) or section 
4022A(a) of ERISA with respect to benefit entitlement of participants 
and beneficiaries under covered plans and determinations that a 
domestic relations order is or is not a qualified domestic relations 
order under section 206(d)(3) of ERISA and section 414(p) of the 
Internal Revenue Code;
     Determinations under section 4022(b) or (c), section 
4022A(b) through (e), or section 4022B of ERISA of the amount of 
benefits payable to participants and beneficiaries under covered plans;
     Determinations of the amount of money subject to recapture 
under section 4045 of ERISA;
     Determinations of the amount of liability under section 
4062(b)(1), section 4063, or section 4064 of ERISA; and
     Determinations that the amount of a participant's or 
beneficiary's benefit under section 4050(a)(3) of ERISA has been 
correctly computed based on the designated benefit paid to PBGC under 
section 4050(b)(2) of ERISA, or that the designated benefit is correct, 
but only to the extent that the benefit to be paid does not exceed the 
participant's or beneficiary's guaranteed benefit.

29 CFR 4003.1(b)(5) through (b)(10). Additionally, nothing in part 4003 
limits the authority of PBGC to review, either upon request or on its 
own initiative, a determination to which part 4003 does not apply when, 
in its discretion, it determines that it would be appropriate to do so. 
29 CFR 4003.1(c)(1).
    A person who is adversely affected by a determination involving any 
of the matters listed above has not exhausted his or her administrative 
remedies, and thus may not challenge the determination in court, until 
he or she has filed an appeal under Sec.  4003.51 and a decision 
granting or denying the relief requested has been issued by the Appeals 
Board. 29 CFR 4003.7. An appeal must be filed within 45 days after the 
date of the determination being appealed, unless the appellant requests 
an extension of time to file within the 45-day period and the request 
is granted. 29 CFR 4003.52, 4003.4, 4003.5.
    An appeal must be in writing, be clearly designated as an appeal, 
contain a statement of the ground on which it is based and the relief 
sought, reference all pertinent information already in the possession 
of PBGC, and include any additional information or data that the 
appellant believes is relevant. 29 CFR 4003.54. The filing of an appeal 
generally stays the effectiveness of a determination until a decision 
on the appeal has been issued by the Appeals Board. 29 CFR 4003.22(a), 
(b).

Appeals Board's Current Practice of Referring Certain Appeals to Other 
PBGC Departments

    This final regulation formalizes the Appeals Board's practice of 
referring certain routine appeals, such as those that allege a mistake 
of fact or that request a more detailed benefit explanation, to other 
PBGC departments or Appeals Board staff for a written response. The 
practice began after the agency concluded that other PBGC departments, 
such as the Benefits Administration and Payment Department (BAPD), 
could handle these types of appeals efficiently given their familiarity 
with the relevant facts underlying the initial benefit determinations.
    At the same time, the agency concluded that it would be appropriate 
for Appeals Board staff (rather than the Appeals Board) to respond to 
untimely and premature appeals, as well as appeals alleging that 
benefit reductions required by law will work a financial hardship. 
Appeals Board staff provide support to the Appeals Board in the areas 
of receipt, review, and closing of appeals and other correspondence. 
Appeals Board staff also analyze incoming correspondence to determine 
whether it should be addressed by the Appeals Board as an appeal, 
referred to another PBGC department, such as BAPD, or retained by 
Appeals Board staff for response as an inquiry, extension request, or a 
request for additional information.
    In 2006, approximately 35% of the appeals received by the Appeals 
Board involved simple factual disputes, or requested only a more 
detailed explanation of a benefit determination. These appeals were 
referred to other PBGC departments for a response and were answered, on 
average, within 45 days. In situations where PBGC's initial 
determination is incorrect, BAPD can quickly resolve the matter, 
without the need for an Appeals Board decision, by issuing a corrected 
benefit determination. Similarly, if an appellant only requests--in the 
form of an appeal--a more detailed explanation of his or her initial 
benefit determination, BAPD can quickly provide a detailed explanation 
given its familiarity with the initial determination and the relevant 
participant data.
    Under current practice, when an appeal is referred to another PBGC 
department or Appeals Board staff for a written response, the time 
period for filing a request for Appeals Board review is extended for an 
additional 30 days from the date of the written response. As discussed 
more fully below, under the final regulation, the time period for 
filing a request for Appeals Board review will be extended for an 
additional 45 days from the date of the PBGC department's or Appeals 
Board staff's written response.

Summary of Amendments

Powers of the Appeals Board

    The regulation amends Sec.  4003.58 of the regulations to clarify 
that the Appeals Board may refer certain appeals to other PBGC 
departments or Appeals Board staff for a response. Appeals that will be 
subject to referral include those that (1) request an explanation of a 
covered initial benefit determination, (2)

[[Page 38119]]

dispute specific data used in a covered initial determination, such as 
date of hire, date of retirement, date of termination of employment, 
length of service, compensation, marital status, and the form of 
benefit elected; or (3) request an explanation of the limits on 
benefits payable by PBGC under part 4022, subpart B, such as the 
maximum guaranteeable benefit and phase-in.
    The PBGC department's or Appeals Board staff's response will be in 
writing and address the matters raised in the appeal. Alternatively, 
appeals referred to BAPD may be answered in the form of a corrected 
benefit determination. The written response or corrected benefit 
determination will provide that the appellant may file a written 
request for review by the Appeals Board within 45 days of the date of 
the written response or corrected benefit determination. If a written 
request for review is not filed with the Appeals Board within 45 days, 
the Appeals Board will not review the case and the initial 
determination or corrected benefit determination will become effective 
under Sec.  4003.22(a).
    A written response or corrected benefit determination will not be a 
decision of the Appeals Board within the meaning of Sec.  4003.59 of 
the regulations. Thus, a person who is issued such a response or 
corrected benefit determination will not have exhausted his or her 
administrative remedies under Sec.  4003.7 of the regulations unless 
and until he or she files a request for review by the Appeals Board and 
a decision granting or denying the relief requested has been issued.

Removal of Determinations Under ERISA Section 4022A

    Under PBGC's multiemployer program, when a plan becomes insolvent, 
PBGC provides financial assistance to the plan sufficient to pay 
guaranteed benefits to participants and administrative expenses. 
Section 4022A of ERISA sets forth PBGC's guarantee for multiemployer 
pension plan benefits. A multiemployer plan is considered insolvent if 
the plan is unable to pay benefits (at least equal to PBGC's guaranteed 
benefit limit) when due. The plan must repay this financial assistance 
in accordance with terms and conditions specified by PBGC.
    Unlike the situation with single-employer plans, however, PBGC does 
not trustee or otherwise assume responsibility for the liabilities of a 
financially troubled multiemployer plan. As a result, PBGC does not 
issue determinations under section 4022A of ERISA with respect to 
benefit entitlement of participants and beneficiaries. Accordingly, 
PBGC is amending Sec.  4003.1(b)(6) and (7) to remove the reference to 
section 4022A. The effect of this amendment will be to remove 
determinations under section 4022A from the scope of part 4003.

Contents of Appeal

    Section 4003.54(3) and (4) of the regulation are amended to reflect 
the plain language used in the ``Your Right to Appeal'' brochure that 
currently accompanies all benefit determinations and is available on 
PBGC's Web site, http://www.pbgc.gov.
    Section 4003.54(3) states that an appeal shall ``[c]ontain a 
statement of the grounds upon which it is brought and the relief 
sought.'' Addressing the same requirement, the brochure states that an 
appeal must ``[s]pecifically explain why PBGC's determination is wrong 
and the result you are seeking.'' The regulation replaces the language 
in Sec.  4003.54(3) with language similar to that which is currently 
used in the brochure.
    PBGC is also amending Sec.  4003.54(4) of the regulation, which 
states that an appeal shall ``[r]eference all pertinent information 
already in the possession of the PBGC and include any additional 
information believed to be relevant.'' Addressing the same requirement, 
the ``Your Right to Appeal'' brochure states, in part, that an appeal 
must ``[d]escribe the relevant information you believe is known by PBGC 
and include copies of documents that provide additional information 
that the Appeals Board should consider.'' The final regulation replaces 
the language in Sec.  4003.54(4) with language similar to that which is 
currently used in the brochure.

Where To File

    PBGC is amending Sec.  4003.53 of the regulations, which provides 
information on where to file an appeal, to remove the filing address 
for appeals and requests for filing extensions because it is no longer 
accurate. In its place, PBGC is incorporating Sec.  4000.4, which 
provides general instructions on where to file submissions to PBGC.

Replacing the Term ``Executive Director'' With ``Director'' in Part 
4003

    On August 17, 2006, the President signed into law the Pension 
Protection Act of 2006, Public Law 109-280 (``PPA 2006''). Section 411 
of PPA 2006 amended section 4002(a) of ERISA to state that PBGC shall 
be administered by a Director, who shall be appointed by the President, 
by and with the advice and consent of the Senate. Thus, PBGC is 
replacing all references to the term ``Executive Director'' in part 
4003 with the term ``Director.'' See Sec. Sec.  4003.2 (Definitions), 
4003.4 (Extension of time); 4003.33 (Where to submit request for 
reconsideration), 4003.35 (Final decision on request for 
reconsideration); and 4003.60 (Referral of appeal to the Executive 
Director).

Applicability

    The amendments in this final rule are applicable to appeals filed 
on or after the effective date of the final rule.

Compliance With Rulemaking Guidelines

    PBGC has determined that this action is not a ``significant 
regulatory action'' under the criteria set forth in Executive Order 
12866. Pursuant to section 1(b)(1) of E.O. 12866 (as amended by 
Executive Order 13422), PBGC has determined that regulatory action is 
required in this area. Principally, this regulatory action is necessary 
to update PBGC's rules for administrative review of agency decisions to 
accurately reflect the agency's appeals handling procedures. In 
addition, because PBGC does not issue determinations under section 
4022A of ERISA with respect to benefit entitlement of participants and 
beneficiaries, the final rule removes determinations under section 
4022A of ERISA from the scope of part 4003. Finally, the final rule 
contains minor clarifying and technical changes to the rules for 
administrative review of agency decisions that will streamline the 
appeals process and make the rules governing administrative appeals 
easier to understand.
    As a rule of agency organization, procedure, or practice, this rule 
is exempt from notice and public comment and delayed effective date 
requirements of section 553 of the Administrative Procedure Act. 
Because no general notice of proposed rulemaking was required, the 
Regulatory Flexibility Act does not apply to this rule. See 5 U.S.C. 
601(2), 603, and 604. (Because the PBGC wished to provide an 
opportunity for public comment, the PBGC published a proposed rule).
    PBGC has determined that these changes do not modify the 
information collection requirements under Administrative Appeals (OMB 
control number 1212-0061, expires 1/31/10).

List of Subjects in 29 CFR Part 4003

    Administrative practice and procedure, Organization and functions 
(Government agencies), Pension insurance, Pensions.

0
For the reasons given above, PBGC is amending 29 CFR part 4003 as 
follows:

[[Page 38120]]

PART 4003--RULES FOR ADMINISTRATIVE REVIEW OF AGENCY DECISIONS

0
1. The authority citation for part 4003 continues to read as follows:

    Authority: 29 U.S.C. 1302(b)(3).


Sec.  4003.1  [Amended]

0
2. In Sec.  4003.1:
0
a. Paragraph (b)(6) is amended by removing the words ``or section 
4022A(a)''.
0
b. Paragraph (b)(7) is amended by removing the words ``(c), section 
4022A(b) through (e), or'' and adding in their place the words ``(c) 
or''.


Sec.  4003.2  [Amended]

0
3. In Sec.  4003.2:
0
a. The definition of Appeals Board is amended by removing the word 
``Executive''.
0
b. The definition of Director is amended by removing the word 
``Executive'' each place it appears in the definition.


Sec.  4003.4  [Amended]

0
4. In Sec.  4003.4, paragraph (b) introductory text is amended by 
removing the word ``Executive''.


Sec.  4003.33  [Amended]

0
5. Section 4003.33 is amended by removing the word ``Executive''.


Sec.  4003.35  [Amended]

0
6. In Sec.  4033.35, paragraph (a)(2) is amended by removing the word 
``Executive'' each place it appears in the paragraph.


Sec.  4003.53  [Amended]

0
7. Section 4003.53 is amended by removing the words ``Appeals Board, 
Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, 
DC 2005-4026'' and adding in their place the words ``Appeals Board''.
0
8. In Sec.  4003.54, paragraphs (a)(3) and (a)(4) are revised to read 
as follows:


Sec.  4003.54  Contents of appeal.

    (a) * * *
* * * * *
    (3) Specifically explain why PBGC's determination is wrong and the 
result the appellant is seeking;
    (4) Describe the relevant information the appellant believes is 
known by PBGC, and summarize any other information the appellant 
believes is relevant. It is important to include copies of any 
documentation that support the appellant's claim or the appellant's 
assertions about this information;
* * * * *

0
9. In Sec.  4003.58:
0
a. The existing text of the section is redesignated as paragraph (a).
0
b. A new paragraph (b) is added to read as follows:


Sec.  4003.58  Powers of the Appeals Board.

* * * * *
    (b) The Appeals Board may refer certain appeals to another PBGC 
department or to Appeals Board staff to provide a response to the 
appellant. The response from another PBGC department or Board staff 
shall be in writing and address the matters raised in the appeal. The 
response may be in the form of an explanation or corrected benefit 
determination. In either case, the appellant will have 45 calendar-days 
from the date of the response to file a written request for review by 
the Appeals Board. If a written request for review is not filed with 
the Appeals Board within the 45-calendar-day period the determination 
shall become effective pursuant to Sec.  4003.22(a).
    (1) Appeals that may be referred to another PBGC department or to 
the Board staff include those that--
    (i) Request an explanation of the initial determination being 
appealed;
    (ii) Dispute specific data used in the determination, such as date 
of hire, date of retirement, date of termination of employment, length 
of service, compensation, marital status and form of benefit elected; 
or
    (iii) Request an explanation of the limits on benefits payable by 
PBGC under Part 4022, Subpart B, such as the maximum guaranteeable 
benefit and phase-in of the PBGC guarantee.
    (2) An explanation or corrected benefit determination issued under 
this subsection is not considered a decision of the Appeals Board. If 
an appellant aggrieved by PBGC's initial determination is issued an 
explanation or corrected benefit determination under this section, the 
appellant has not exhausted his or her administrative remedies until 
the appellant has filed a timely request with the Appeals Board for 
review and the Appeals Board has issued a decision granting or denying 
the relief requested. See Sec.  4003.7 of this part.

0
10. In Sec.  4003.60:
0
a. The section heading is amended by removing the word ``Executive''.
0
b. The text of the section is amended by removing the word 
``Executive'' each place it appears.

    Issued in Washington, DC, this 29th day of April, 2008.

Elaine L. Chao,
Chairman, Board of Directors, Pension Benefit Guaranty Corporation.

    Issued on the date set forth above pursuant to a resolution of 
the Board of Directors authorizing its Chairman to issue this final 
rule.

Judith R. Starr,
Secretary, Board of Directors, Pension Benefit Guaranty Corporation.
[FR Doc. E8-15196 Filed 7-2-08; 8:45 am]
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