[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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