[Federal Register Volume 82, Number 112 (Tuesday, June 13, 2017)]
[Rules and Regulations]
[Pages 26990-26992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-12207]


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PENSION BENEFIT GUARANTY CORPORATION

29 CFR Part 4901

RIN 1212-AB43


Examination and Copying of PBGC Records

AGENCY: Pension Benefit Guaranty Corporation.

ACTION: Final rule.

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SUMMARY: In accordance with the FOIA Improvement Act of 2016, this rule 
amends the regulation of the Pension Benefit Guaranty Corporation that 
governs the examination and copying of PBGC records.

DATES: 
    Effective date: June 13, 2017.
    Applicability date: Like the provisions of the FOIA Improvement Act 
of 2016 that this rule incorporates, and which PBGC has been following 
since the Act became effective on June 30, 2016, the amendments in this 
rule apply to requests for records under the Freedom of Information Act 
that are made after June 30, 2016.

FOR FURTHER INFORMATION CONTACT: Samantha M. Lowen 
([email protected]), Attorney, Regulatory Affairs Group, Office 
of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K 
Street NW., Washington, DC 20005-4026; 202-326-4400, extension 3786. 
(TTY and TDD users may call the Federal relay service toll-free at 800-
877-8339 and ask to be connected to 202-326-4400, extension 3786.)

SUPPLEMENTARY INFORMATION:

Executive Summary

Purpose of the Rule

    This rule is needed to incorporate changes to the Freedom of 
Information Act made by the FOIA Improvement Act of 2016. Authority for 
this rule is provided by section 4002(b)(3) of the Employee Retirement 
Income Security Act of 1974 and the FOIA Improvement Act of 2016.

Major Provisions of the Rule

    This rule provides for an electronic reading room for records, 
expands the categories of records in the reading room, updates the 
standard for disclosure, requires additional notice to requesters about 
FOIA resources, extends the appeal deadline, and places restrictions on 
fees.

Background

    The Pension Benefit Guaranty Corporation (PBGC) is amending its 
regulation on Examination and Copying of PBGC Records (29 CFR part 
4901) (FOIA regulation) to incorporate statutory changes to the Freedom 
of Information Act (5 U.S.C. 551 et seq.) (FOIA). The majority of the 
regulatory changes are specifically required by the FOIA Improvement 
Act of 2016 (2016 Act). Section 3 of the 2016 Act requires federal 
agencies to review their FOIA regulations and to make conforming 
amendments, as necessary, to incorporate the 2016 Act's changes to the 
FOIA. In addition to the changes required under the 2016 Act, PBGC is 
making one other amendment to its FOIA regulation that incorporates a 
previous statutory change under the Open Government Act of 2007 (2007 
Act).

Regulatory Changes

Electronic Reading Room

    PBGC is amending Sec. Sec.  4901.3, 4901.4, and 4901.5 of its FOIA 
regulation by replacing the references to PBGC's ``public reference 
room'' with references to its ``electronic reading room.''
    Before the 2016 Act, the FOIA required agencies to affirmatively 
make certain categories of records ``available for public inspection 
and copying'' without prompting by formal request. Like most agencies, 
PBGC complied with this requirement by maintaining a physical 
``reference room'' to house these records (and indices thereto), which 
members of the public could inspect and copy in person. The e-FOIA 
Amendments of 1996 (1996 Act) provided that agencies could supplement 
or entirely replace their physical reading rooms with electronic 
reading rooms, where members of the public could access the 
affirmatively

[[Page 26991]]

disclosed material online. Consistent with the 1996 Act, PBGC began 
maintaining an electronic reading room several years ago. The 2016 Act 
further modernized the FOIA by replacing the requirement to make these 
records ``available for public inspection and copying'' with the 
requirement to make them ``available for public inspection in an 
electronic format.'' Under the 2016 Act, physical reading rooms are 
effectively obsolete.
    Consistent with these revisions to the FOIA, PBGC is amending its 
FOIA regulation by removing the now outdated references to PBGC's 
public reference room and adding a description (including the location) 
of PBGC's electronic reading room.

Affirmative Disclosure of Certain Records

    PBGC is amending Sec.  4901.4 of its FOIA regulation to include two 
additional types of records in its electronic reading room.
    Both the 2007 Act and the 2016 Act added to the list of records 
that agencies must disclose without formal request. As amended, the 
FOIA requires each agency to affirmatively release certain records that 
the agency determines are likely to be the subject of future requests, 
as well as certain others that have been the subject of three or more 
requests. The FOIA also requires agencies to redact such records to the 
extent necessary to protect personal privacy interests before adding 
them to the electronic reading room.
    Consistent with this change, PBGC is amending the list of records 
available in its electronic reading room at Sec.  4901.4.

Foreseeable Harm

    PBGC is amending Sec.  4901.5 of its FOIA regulation to incorporate 
the 2016 Act's ``foreseeable harm'' standard for responsive 
disclosures.
    The 2016 Act provides that an agency should only withhold 
information under the FOIA ``if the agency reasonably foresees that 
disclosure would harm an interest protected by an exemption [under the 
FOIA]'' or if disclosure is otherwise prohibited by law. Accordingly, 
PBGC is amending Sec.  4901.5, which sets forth PBGC's general policy 
of openness under the FOIA, by adding this foreseeable harm exception 
to disclosure.

Additional Notice to Requesters

    PBGC is amending Sec.  4901.14 of its FOIA regulation to 
incorporate the additional notice requirements to requesters of certain 
resources available to them. The 2016 Act requires an agency, when 
issuing a determination to a requester, to offer the services of the 
agency's FOIA Public Liaison and, if the determination is adverse, to 
notify the requester of the services provided by the Office of 
Government Information Services (OGIS).\1\ Accordingly, PBGC is 
amending Sec.  4901.14 by adding these notice requirements to PBGC's 
obligations when responding to FOIA requests.
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    \1\ OGIS is an office of the National Archives and Records 
Administration that provides dispute resolution services under the 
FOIA. See 5 U.S.C. 552(h).
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Appeal Deadline

    PBGC is amending Sec.  4901.15 of its FOIA regulation by increasing 
the appeal deadline from 30 to 90 days, in conformity with the 90-day 
minimum time period established by the 2016 Act.

Fee Exception

    PBGC is amending Sec.  4901.31 of its FOIA regulation to include 
new restrictions under the 2016 Act on PBGC's ability to charge fees in 
certain situations. Under the amended regulation, if PBGC fails to 
respond to a request within the time specified under paragraph (a)(6) 
of the FOIA, PBGC generally may not charge the applicable search or 
duplication fees unless specific conditions--established by the 2016 
Act--have been met.

Compliance With Rulemaking Guidelines

    PBGC has determined that this rulemaking is not a ``significant 
regulatory action'' under Executive Order 12866. Accordingly, Executive 
Order 13771 does not apply to this rule, and the rule has not been 
reviewed by the Office of Management and Budget under Executive Order 
12866.
    Executive Orders 12866 and 13563 direct 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). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    Although this is not a significant regulatory action under 
Executive Order 12866, PBGC has examined the economic implications of 
this final rule. PBGC has concluded that because these proposed 
amendments incorporate statutory changes that facilitate the public's 
access to PBGC records under the FOIA at no additional cost, these 
regulatory amendments result in a net benefit to the public.
    The amendments of PBGC's FOIA regulation contained herein concern 
matters of agency procedure and practice. They provide additional 
protection to the public and are being adopted in accordance with the 
provisions of the 2016 Act. Pursuant to 5 U.S.C. 553(b), general notice 
of proposed rulemaking is not required. Because no general notice of 
proposed rulemaking is required for this rule, the Regulatory 
Flexibility Act of 1980 does not apply. See 5 U.S.C. 601.

List of Subjects in 29 CFR Part 4901

    Freedom of information.

    In consideration of the foregoing, PBGC is amending 29 CFR part 
4901 as follows.

PART 4901--EXAMINATION AND COPYING OF PENSION BENEFIT GUARANTY 
CORPORATION RECORDS

0
 1. 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
2. Revise Sec.  4901.3 to read as follows:


Sec.  4901.3  Electronic reading room.

    The PBGC will maintain an electronic reading room on its Web site, 
www.pbgc.gov, where persons may inspect in an electronic format all 
records made available for such purposes under this part.

0
3. Amend Sec.  4901.4 as follows:
0
a. Revise the section heading and introductory text.
0
b. In paragraph (d)(1), remove the comma at the end of the paragraph 
and add a semicolon in its place.
0
c. In paragraphs (d)(2) and (3), remove ``, and'' and add a semicolon 
in its place.
0
d. Add paragraphs (d)(4) and (5).
    The revisions and additions read as follows:


Sec.  4901.4  Information maintained in electronic reading room.

    The PBGC shall make available for public inspection in an 
electronic format without formal request--
* * * * *
    (d) * * *
    (4) Frequently requested records. Records that have been released 
under 5 U.S.C. 552(a)(3) and have been the subject of three or more 
requests; and
    (5) Other records. Records that have been released under 5 U.S.C. 
552(a)(3) and that PBGC determines, because of the nature of the 
records' subject matter,

[[Page 26992]]

have become or are likely to become the subject of subsequent requests 
for substantially the same records; and
* * * * *


Sec.  4901.5  [Amended]

0
4. In Sec.  4901.5, amend paragraph (a) by:
0
a. Removing ``exempt from disclosure'' and adding in its place ``PBGC 
reasonably foresees that disclosure would harm an interest protected by 
an exemption'';
0
b. Adding the words ``or disclosure is otherwise prohibited by law'' 
after the words ``subpart C of this part''; and
0
c. Removing the two instances of ``public reference'' and adding in the 
place of each ``electronic reading''.


Sec.  4901.14  [Amended]

0
5. In Sec.  4901.14:
0
a. Amend paragraph (a) by adding, at the end of the paragraph, the 
sentence ``When responding to a request under paragraph (b), (c), or 
(d) of this section, the disclosure officer will notify the requester 
of the requester's right to seek assistance from the PBGC's FOIA Public 
Liaison and will provide information about how to contact the FOIA 
Public Liaison.''
0
b. Amend paragraph (c) by removing ``denial and outline the appeal 
procedure available'' and adding in its place ``denial, outline the 
appeal procedure available, and notify the requester of the right to 
seek dispute resolution services from the PBGC's FOIA Public Liaison or 
the Office of Government Information Services''.
0
c. Amend paragraph (d) by adding ``and notice of the requester's right 
to seek dispute resolution services from the PBGC's FOIA Public Liaison 
or the Office of Government Information Services'' after the word 
``circumstances''.


Sec.  4901.15  [Amended]

0
6. In Sec.  4901.15, amend paragraph (a) by removing the two instances 
of the words ``30 days'' and adding in the place of each ``90 days''.

0
 7. In Sec.  4901.31:
0
a. Amend paragraph (a) introductory text by adding, at the end of the 
paragraph, the sentence ``Except as provided in paragraph (e) of this 
section, no charge for searching (or in the case of a requester 
described under 5 U.S.C. 552(a)(4)(A)(ii)(II), for duplication) will be 
assessed if PBGC has failed to comply with any time limit under 5 
U.S.C. 552(a)(6).''
0
b. Add paragraph (e).
    The addition reads as follows:


Sec.  4901.31  Charges for services.

* * * * *
    (e) Unusual or exceptional circumstances. Notwithstanding paragraph 
(a) of this section, if PBGC fails to comply with a time limit under 5 
U.S.C. 552(a)(6), PBGC may nevertheless assess a charge for searching 
(or in the case of a requester described under 5 U.S.C. 
552(a)(4)(A)(ii)(II), for duplication) if either paragraph (e)(1) or 
(2) of this section applies:
    (1) PBGC has determined that unusual circumstances apply and that 
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) A court has determined that exceptional circumstances exist (as 
defined in 5 U.S.C. 552(a)(6)(C)) and has issued an order excusing 
PBGC's failure to comply with the time limit.

    Issued in Washington, DC, by
W. Thomas Reeder,
Director, Pension Benefit Guaranty Corporation.
[FR Doc. 2017-12207 Filed 6-12-17; 8:45 am]
BILLING CODE 7709-02-P