[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