Federal Register / Vol. 85, No. 36 / Monday, February 24, 2020 / Rules and Regulations 10279 

final rule meets the plain language 

requirement of Executive Order 12866. 

Regulatory Flexibility Act 

We certify that this final rule does not 

have a significant economic impact on 

a substantial number of small entities 

because it affects only individuals. 

Therefore, a regulatory flexibility 

analysis is not required under the 

Regulatory Flexibility Act, as amended. 

Executive Order 13771 

This regulation does not impose novel 

costs on the public and as such is 

considered an exempt regulatory action 

under E.O. 13771. 

Paperwork Reduction Act 

This final rule only extends the date 

for the medical listings cited above, but 

does not create any new or affect any 

existing collections, or otherwise change 

any content of the currently published 

rules. Accordingly, it does not impose 

any burdens under the Paperwork 

Reduction Act, and does not require 

further OMB approval. 

(Catalog of Federal Domestic Assistance 

Program Nos. 96.001, Social SecurityDisability Insurance; 96.002, Social SecurityRetirement Insurance; 96.004, Social 

Security-Survivors Insurance; 96.006, 

Supplemental Security Income) 

List of Subjects in 20 CFR Part 404 

Administrative practice and 

procedure, Blind, Disability benefits, 

Old-Age, Survivors and Disability 

Insurance, Reporting and recordkeeping 

requirements, Social Security. 

Andrew Saul, 

Commissioner of Social Security. 

For the reasons set out in the 

preamble, we are amending appendix 1 

to subpart P of part 404 of chapter III of 

title 20 of the Code of Federal 

Regulations as set forth below. 

PART 404—FEDERAL OLD-AGE, 

SURVIVORS AND DISABILITY 

INSURANCE 

(1950—) 

Subpart P—[Amended] 

■ 1. The authority citation for subpart P 

of part 404 continues to read as follows: 

Authority: Secs. 202, 205(a)–(b) and (d)– 

(h), 216(i), 221(a) and (h)–(j), 222(c), 223, 

225, and 702(a)(5) of the Social Security Act 

(42 U.S.C. 402, 405(a)–(b) and (d)–(h), 416(i), 

421(a) and (h)–(j), 422(c), 423, 425, and 

902(a)(5)); sec. 211(b), Pub. L. 104–193, 110 

Stat. 2105, 2189; sec. 202, Pub. L. 108–203, 

118 Stat. 509 (42 U.S.C. 902 note). 

■ 2. Amend appendix 1 to subpart P of 

part 404 by revising items 3, 8, and 11 

of the introductory text to read as 

follows: 

Appendix 1 to Subpart P of Part 404— 

Listing of Impairments 

* * * * * 

Special Senses and Speech (2.00 and 

102.00): June 3, 2022. 

* * * * * 

8. Hematological Disorders (7.00 and 

107.00): June 3, 2022. 

* * * * * 

11. Congenital Disorders That Affect 

Multiple Body Systems (10.00 and 110.00): 

June 3, 2022. 

* * * * * 

[FR Doc. 2020–03243 Filed 2–21–20; 8:45 am] 

BILLING CODE 4191–02–P 

PENSION BENEFIT GUARANTY 

CORPORATION 

29 CFR Part 4003 

RIN 1212–AB35 

Administrative Review of Agency 

Decisions 

AGENCY: Pension Benefit Guaranty 

Corporation. 

ACTION: Final rule. 

SUMMARY: This final rule amends 

PBGC’s regulation on Rules for 

Administrative Review of Agency 

Decisions. It clarifies and changes the 

review process for certain agency 

determinations and the procedures for 

requesting administrative review. 

DATES: 

Effective Date: This rule is effective 

March 25, 2020. 

Applicability date: The amendments 

subjecting all coverage determinations 

to the appeals process under 

§ 4003.1(e)(1) of this final rule apply to 

initial determinations that are subject to 

this part and issued on or after March 

25, 2020. 

FOR FURTHER INFORMATION CONTACT: 

Karen B. Levin (levin.karen@pbgc.gov), 

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 amends PBGC’s 

regulation on rules for administrative 

review of agency decisions to clarify, 

simplify, and make other editorial 

changes to the language, and codify 

PBGC practices. 

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. 

Major Provisions 

This final rule: 

• Subjects all coverage 

determinations to appeal. 

• Subjects all determinations 

concerning the allocation of a trusteed 

plan’s assets upon plan termination to 

appeal, except for determinations 

concerning the distribution of residual 

assets, which remain subject to 

reconsideration. 

• Clarifies that, consistent with 

PBGC’s long-standing practice, when 

PBGC makes an initial determination 

effective on the date of issuance, a 

person aggrieved by the initial 

determination has no right to request 

reconsideration or appeal of the 

determination. 

• Clarifies where to send requests for 

extensions on appeals and extensions 

for reconsideration. 

• Clarifies that persons seeking 

administrative review may request 

information in PBGC’s possession by 

using PBGC’s procedures for requests 

under the Freedom of Information Act 

and the Privacy Act. 

Background 

The Pension Benefit Guaranty 

Corporation (PBGC) administers two 

insurance programs for private-sector 

defined benefit pension plans under 

title IV of the Employee Retirement 

Income Security Act of 1974 (ERISA): A 

single-employer plan termination 

insurance program and a multiemployer 

plan insolvency insurance program. 

This final rule applies only to plans 

covered by the single-employer plan 

termination insurance program. 

PBGC is committed to the ongoing 

retrospective review of its regulations. 

This practice ensures that PBGC 

provides clear and helpful guidance, 

minimizes burdens and maximizes 

benefits, and addresses ineffective and 

outdated rules. In the course of PBGC’s 

regulatory review, PBGC identified 

opportunities to improve its regulation 

on Rules for Administrative Review of 

Agency Decisions (29 CFR part 4003) by 

making it more transparent, simplifying 

language, and codifying policies. 

On October 4, 2019 (at 84 FR 53084), 

PBGC published a proposed rule to 

amend PBGC’s administrative review 

regulation. PBGC received no comments 


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10280 Federal Register / Vol. 85, No. 36 / Monday, February 24, 2020 / Rules and Regulations 

1See 44 FR 42181, 42181 (July 19, 1979). 

2See section 4007 of ERISA (designated payor is 

defined as a contributing sponsor or plan 

administrator in the case of a single-employer plan). 

3See 67 FR 47694, 47694 (July 22, 2002). 

on the proposed rule. The final rule is 

the same as the proposed rule. 

Final Regulatory Changes 

PBGC’s administrative review 

regulation provides procedures so that 

persons who are aggrieved by PBGC 

determinations have an opportunity to 

present their positions to PBGC before a 

final decision is made by the agency. 

When PBGC first promulgated its rules 

on administrative review of agency 

decisions in 1979 (the ‘‘1979 rule’’), it 

emphasized the competing interests of 

providing ‘‘fair and effective 

administrative review’’ and ‘‘keep[ing] 

to a minimum the time and cost entailed 

in obtaining PBGC review of its 

decisions.’’ 1 To balance these interests, 

PBGC developed an administrative 

review system with two separate 

processes: Reconsideration and appeal. 

Under reconsideration, aggrieved 

persons generally raise their concerns 

and make their cases directly to a 

higher-level official within the same 

department that issued the initial 

determination. Most requests for 

reconsideration are filed by the 

designated payor 2 under § 4003.1(b)(2) 

and relate to premiums, interest, and 

late payment penalties. 

Under the appeals process, the 

decisionmaker reviewing the initial 

determination is not within the same 

department that issued the initial 

determination. Rather, the PBGC 

Appeals Board, which is located within 

the Office of the General Counsel, 

provides an independent review of the 

initial determination. Decisions by the 

Appeals Board may be made either by 

a three-member panel or by an 

individual member. Originally, a 

decision on appeal was always decided 

by a three-member panel. The appeals 

process changed in 2002 when the 

administrative review regulation was 

amended to expedite the appeals 

process, authorizing a single member of 

the PBGC Appeals Board to decide 

routine appeals instead of the threemember panel.3 All non-routine appeals 

are decided by a three-member panel. 

Most appeals are filed by individuals 

(participants, beneficiaries, and 

alternate payees) in connection with 

benefit entitlement or amounts, 

although sponsors have filed appeals of 

termination liability assessments and 

non-coverage determinations. 

Subpart A of the regulation provides 

a list of initial determinations made by 

PBGC, with each determination subject 

to either the reconsideration procedures 

described in subpart C or the appeals 

procedures described in subpart D. The 

final rule reorganizes the list in 

§ 4003.1(b) into two new paragraphs by 

moving and reorganizing the list of 

initial determinations subject to 

reconsideration to § 4003.1(d) and the 

list of initial determinations subject to 

appeal to § 4003.1(e). These changes 

simplify references to the types of 

determinations subject to each type of 

administrative review and improve the 

readability of this section. 

Subpart B of the regulation provides 

rules for the form and contents of initial 

determinations and specifies that initial 

determinations will not become 

effective until the time for filing a 

request for reconsideration under 

subpart C or an appeal under subpart D 

has elapsed. 

Under an exception in § 4003.22(b), 

PBGC may in its discretion order that an 

initial determination is effective on the 

date of issuance. As an example, when 

PBGC makes an initial determination 

under section 4042 of ERISA that the 

statutory criteria for termination are 

met, the initial determination states that 

it is effective on the date of issuance. 

When PBGC makes an order that an 

initial determination is effective on the 

date of issuance, any person aggrieved 

by the initial determination has 

exhausted all available administrative 

remedies and may seek judicial review 

of PBGC’s determination in an 

appropriate court under section 

4003(f)(2) of ERISA. 

The final rule amends § 4003.22(b) to 

clarify that the exception under it does 

not apply to initial determinations 

related to a participant’s or beneficiary’s 

benefit entitlement and the amount of 

benefit payable under a covered plan, to 

whether a domestic relations order is or 

is not qualified, and to whether benefits 

are payable under section 4050 of 

ERISA and part 4050, as listed 

respectively in the new § 4003.1(e)(2), 

(3), and (6). The final rule further 

amends § 4003.22(b) to clarify that when 

PBGC issues an order making an initial 

determination effective on the date of 

issuance, a person aggrieved by the 

initial determination has no right to 

request review under subparts C and D, 

consistent with PBGC’s long-standing 

practice, and has exhausted all 

administrative remedies. 

Coverage Determinations 

PBGC insures plans described in 

section 4021(a) of ERISA that do not fall 

within one of the exemptions from 

coverage listed in section 4021(b)(1)– 

(13) of ERISA. If a question arises about 

whether a plan is covered under title IV, 

PBGC may make a coverage 

determination. 

As discussed in the proposed rule, the 

administrative review regulation 

provides that coverage determinations 

under section 4021 of ERISA are subject 

to different review procedures. An 

initial determination that a plan is 

covered under section 4021 is subject to 

reconsideration by the PBGC 

department that issued the original 

determination. An initial determination 

that a plan is not covered is subject to 

appeal to the PBGC Appeals Board. 

Based on internal data gathered by 

PBGC from fiscal years 2013 through 

2017, there were few requests for 

reconsideration of coverage 

determinations (a total of 18) and even 

fewer requests for appeal of coverage 

determinations (one in 2017). The data 

indicates that the total amount of time 

and agency resources used to close 

requests for reconsideration and appeals 

of coverage determinations are similar. 

As originally designed, case 

resolution under the appeals process 

generally took longer and put a greater 

burden on PBGC’s administrative 

resources than the reconsideration 

process. The movement to single 

member decisions for routine cases and 

other process improvements have 

largely mitigated these issues. In light of 

these improvements, for the sake of 

consistency, the final rule makes all 

coverage determinations subject to 

appeal to the PBGC Appeals Board. In 

cases in which the Appeals Board is 

considering granting a plan sponsor’s 

appeal by finding that a plan is not 

covered, the Appeals Board will make 

reasonable efforts to notify plan 

participants of the decision under 

consideration and permit them an 

opportunity to present matters as a 

potential aggrieved party to the appeal 

under § 4003.57(a). The final rule 

removes § 4003.1(b)(1) and adds 

language in new § 4003.1(e)(1), to 

subject all coverage determinations to 

the appeals process. 

Asset Allocation Determinations 

Section 4044 of ERISA requires that 

when an underfunded pension plan 

terminates, PBGC must assign benefits 

payable to each participant to one or 

more of six priority categories and 

allocate the plan’s assets to the benefits 

in each category in a prescribed 

sequential order (i.e., priority categories 

1 through 6). To accomplish the 

allocation process in a terminated plan, 

PBGC first values the benefits in each of 

a terminated plan’s six priority 

categories and the terminated plan’s 

assets as of the plan’s termination date. 


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4Note, section 4044(d) of ERISA uses the word 

‘‘residual’’ instead of ‘‘excess.’’ 

5See 44 FR 42181, 42185 (July 19, 1979) and 29 

CFR part 4901. 

After valuing the benefits and assets, 

PBGC allocates the assets available to 

pay benefits to the benefits assigned to 

each priority category, beginning with 

the highest priority category, i.e., 

priority category 1, and continuing in 

sequential order until the assets satisfy 

all benefits in all priority categories or 

until the assets are insufficient to pay all 

benefits within a particular category. 

In substantially all plans that 

terminate in a distress or involuntary 

(PBGC-initiated) termination, the plan’s 

assets do not satisfy all benefits assigned 

to the six priority categories and the 

assets will be insufficient to satisfy all 

benefit liabilities, as defined under 

section 4001(a)(16) of ERISA. PBGC 

typically becomes the statutory trustee 

of these plans and pays guaranteed 

benefits to participants and beneficiaries 

up to statutory limits. Some participants 

may receive more than their statutorily 

guaranteed benefit depending upon the 

priority category to which their benefit 

is assigned and the extent to which (if 

any) assets are sufficient to pay all 

benefits in that category. PBGC-trusteed 

plans rarely have residual assets. 

In an employer-initiated standard 

termination of a sufficient plan, a plan’s 

assets must satisfy and may exceed all 

benefit liabilities under the plan. 

Section 4044(d) of ERISA describes the 

circumstances under which any residual 

assets of a single-employer plan may be 

distributed to the employer or 

participants and beneficiaries. 

As discussed in the proposed rule, the 

administrative review regulation 

provides that PBGC’s asset allocation 

determinations are subject to the 

reconsideration process, describing 

them in § 4003.1(b)(4) as 

‘‘determinations with respect to 

allocation of assets under section 4044 

of ERISA, including distribution of 

excess assets under section 4044(d).’’ 4

This language could be read to imply 

that PBGC issues standalone 

determinations with respect to asset 

allocations. Although PBGC’s 

processing of a trusteed plan includes 

an allocation of the plan’s assets 

available to pay benefits under section 

4044 of ERISA, determinations on 

allocating assets to benefits in the six 

priority categories depend on the value 

of benefits in each priority category and 

the plan assets available to pay benefits 

in a particular priority category in the 

prescribed sequence. Such 

determinations are incorporated into 

other benefit-specific determinations 

that PBGC regularly issues that are 

subject to the appeals process, such as 

those issued under § 4003.1(b)(7) 

(determinations under section 4022(a) 

or (c) of ERISA with respect to benefit 

entitlement of participants and 

beneficiaries under covered plans) and 

§ 4003.1(b)(8) (determinations under 

section 4022(b) or (c) or section 4022B 

of ERISA of the amount of benefits 

payable to participants and beneficiaries 

under covered plans). 

Participants and their beneficiaries 

may appeal the initial determinations of 

their benefit entitlements and amounts 

of benefits payable, as provided in their 

individual benefit determinations. 

Determinations of benefit entitlements 

and amounts of benefits payable depend 

on PBGC’s assignment and valuation of 

benefits and the allocation of assets 

available to pay benefits to the priority 

categories to which those benefits are 

assigned and the extent to which assets 

are allocated to non-guaranteed benefits 

in certain priority categories pursuant to 

section 4044(a) of ERISA and PBGC’s 

regulation on Allocation of Assets in 

Single-Employer Plans (29 CFR part 

4044). 

Consistent with PBGC’s long-standing 

practice, the final rule clarifies in new 

§ 4003.1(e)(2) that the right to appeal an 

individual benefit determination 

necessarily includes the right to appeal 

a participant’s or beneficiary’s benefit 

entitlement and the amount of benefit 

payable based on the value of the 

benefits assigned to specific priority 

categories and PBGC’s allocation of 

assets available to pay benefits to those 

categories under the method prescribed 

by section 4044(a) of ERISA. The final 

rule removes § 4003.1(b)(4) and creates 

a new § 4003.1(d)(2)(iv), to continue to 

subject determinations involving the 

distribution of residual assets under 

section 4044(d) of ERISA to the 

reconsideration process. The final rule 

also revises the description of 

individual benefit determinations 

subject to appeal in § 4003.1(b)(7) and 

(8) and reorganizes these provisions in 

new § 4003.1(e)(2) and (3). 

Assistance With Obtaining Information 

As discussed in the proposed rule, 

§ 4003.3 of the administrative review 

regulation provides that a person may 

request PBGC’s assistance in obtaining 

relevant information in the possession 

of a third party. The regulation is silent 

about obtaining information in PBGC’s 

possession. The preamble to the 1979 

rule explains that this omission was 

intentional because ‘‘a party to an 

appeal who wishes to examine PBGC 

documents need only file a request 

pursuant to [PBGC’s FOIA 

regulation].’’ 5

It came to PBGC’s attention through 

the Office of the PBGC Participant and 

Plan Sponsor Advocate that participants 

seeking administrative review are often 

unaware of their ability to request 

relevant information under the FOIA 

and the Privacy Act by using PBGC 

procedures at 29 CFR parts 4901 and 

4902, respectively. While parts 4901 

and 4902 provide straightforward 

processes for requesting and obtaining 

such materials from PBGC’s Disclosure 

Division, some participants learn of 

them only after contacting another 

PBGC office and ultimately being 

referred to the Disclosure Division and 

instructed to follow such procedures. 

PBGC aims to avoid confusing 

participants in their efforts to identify 

the appropriate point of contact and 

steps to obtain relevant information. 

To make the information gathering 

process more efficient and transparent 

for persons seeking administrative 

review, the final rule reorganizes 

§ 4003.3 to clarify that persons may 

request information using PBGC’s 

procedures for FOIA and Privacy Act 

requests. Paragraph (a) contains the 

section’s scope, paragraph (b) provides 

a description concerning information 

not in the possession of PBGC, and 

paragraph (c) provides a description 

concerning information in the 

possession of PBGC including a crossreference to PBGC’s FOIA and Privacy 

Act regulations. 

The final rule amends § 4003.3(b) to 

include additional language concerning 

a request for PBGC’s assistance in 

obtaining materials not in the 

possession of PBGC to clarify that such 

a request must be submitted to the 

Appeals Board or the department 

responsible for reviewing the initial 

determination. The section refers 

persons requesting PBGC’s assistance 

with a reconsideration to § 4003.33 and 

with an appeal to § 4003.54. 

Extension of Time 

The final rule deletes § 4003.4(b) 

concerning requests for extensions of 

time related to disaster relief and 

reorganizes the section to contain a 

single paragraph concerning a request 

for an extension of time when a 

document is required to be filed within 

a certain period. PBGC published a 

notice describing how it changed its 

announcement of relief from filing 

deadlines and penalties when a disaster 

occurs and explaining that PBGC’s 

disaster relief will be available at the 


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10282 Federal Register / Vol. 85, No. 36 / Monday, February 24, 2020 / Rules and Regulations 

6See 83 FR 30991, 30991 (July 2, 2018). 

7 5 U.S.C. 601 et seq. 

8See, e.g., special rules for small plans under part 

4007 (Payment of Premiums). 

9See., 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. 

10See, 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. 

11See., e.g., DOL’s final rule on Prohibited 

Transaction Exemption Procedures, 76 FR 66,644 

(Oct. 27, 2011). 12See, 13 CFR 121.201. 

same time the Internal Revenue Service 

issues disaster relief to taxpayers.6

The final rule amends § 4003.4 to 

include language providing that 

requests for extension of time for the 

submission of appeals should be sent to 

the Appeals Board while requests for 

extension of the submission of requests 

for reconsideration should be sent to the 

department that issued the initial 

determination. 

Form and Contents of Request for 

Reconsideration 

The final rule amends § 4003.34 to 

clarify the form and content 

requirements that a request for 

reconsideration must include. 

Decision on Request for Reconsideration 

The final rule adds new § 4003.35(c) 

to clarify that a decision on a request for 

reconsideration constitutes a final PBGC 

action, which is binding on all persons 

who participated in the request. This 

language is consistent with the language 

in § 4003.59(b) that a decision of the 

Appeals Board constitutes final agency 

action by PBGC. 

The final rule also makes 

clarifications and other editorial 

changes to part 4003. 

Compliance With Rulemaking 

Guidelines 

Executive Orders 12866, 13563, and 

13771 

The Office of Management and Budget 

(OMB) has determined that this rule is 

not a ‘‘significant regulatory action’’ 

under Executive Order 12866. 

Accordingly, this final rule is exempt 

from Executive Order 13771, and OMB 

has not reviewed the final 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 and policy implications of 

this final rule and has concluded that 

there will be no significant economic 

impact as a result of the final 

amendments to PBGC’s regulation. Most 

of the amendments merely clarify 

existing PBGC practices and neither the 

public nor PBGC is likely to assume any 

additional costs due to these 

amendments and revisions. 

Section 6 of Executive Order 13563 

requires agencies to rethink existing 

regulations by periodically reviewing 

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 the amendments to the 

administrative review regulation and 

the clarifications and improvements to 

this regulation as consistent with the 

principles for review under Executive 

Order 13563. PBGC believes this 

provides clearer guidance to the public. 

Regulatory Flexibility Act 

The Regulatory Flexibility Act 7

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 final 

rule is not likely to have a significant 

economic impact on a substantial 

number of small entities, section 604 of 

the Regulatory Flexibility Act requires 

that the agency present a final 

regulatory flexibility analysis at the time 

of the publication of the final rule 

describing the impact of the rule on 

small entities and steps taken to 

minimize the impact. Small entities 

include small businesses, organizations, 

and governmental jurisdictions. 

Small Entities 

For purposes of the Regulatory 

Flexibility Act requirements with 

respect to this final 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 8 and is 

consistent with certain requirements in 

title I of ERISA 9 and the Internal 

Revenue Code (Code),10 as well as the 

definition of a small entity that the 

Department of Labor has used for 

purposes of the Regulatory Flexibility 

Act.11

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 12 under the Small 

Business Act. PBGC therefore requested 

comments on the appropriateness of the 

size standard used in evaluating the 

impact of the amendments in the 

proposed rule on small entities. PBGC 

received no comments on this point. 

On the basis of its definition of small 

entity, PBGC certifies under section 

605(b) of the Regulatory Flexibility Act 

that the amendments in this final rule 

will not have a significant economic 

impact on a substantial number of small 

entities. The amendments clarify 

existing PBGC practices and will have a 

neutral cost impact. Accordingly, as 

provided in section 605 of the 

Regulatory Flexibility Act, sections 603 

and 604 do not apply. 

Paperwork Reduction Act 

PBGC’s Form 723, Request for 

Additional time to file an Appeal of a 

PBGC Benefit Termination and Form 

724, Appeal of a PBGC Benefit 

Determination, are used by aggrieved 

persons to assist them with filing an 

appeal. The collection of information 

with respect to administrative appeals is 

approved under control number 1212– 

0061 (expires July 31, 2022). 

The final rule does not require 

changes to the forms used for appeals. 

The final rule eliminates the 

requirement for an appellant to provide 

the names and addresses of persons who 

the appellant believes may be aggrieved 

if PBGC provides the relief sought. As 

few, if any, appellants provide this 

information, PBGC does not expect that 

this final change impacts the hour 

burden and cost burden for the 

information collection with respect to 

appeals. 

The administrative review regulation 

requires that a request for 

reconsideration include specified 

information. The collection of 

information with respect to filings for 

reconsideration is approved under 

control number 1212–0063 (expires 

August 31, 2022). 

The final rule clarifies the information 

required to be submitted for a request 

for reconsideration, including copies of 

any documentation that supports the 

requestor’s claim or assertions 

concerning the request. PBGC expects 


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that this clarification will make the 

process more efficient and will not 

impact the hour burden and cost burden 

for the information collection with 

respect to reconsideration. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. 

List of Subjects in 29 CFR Part 4003 

Administrative practice and 

procedure, Organization and functions 

(Government agencies), Pension 

insurance. 

For the reasons given above, PBGC 

amends 29 CFR part 4003 as follows. 

PART 4003—RULES FOR 

ADMINISTRATIVE REVIEW OF 

AGENCY DECISIONS 

■ 1. The authority citation for part 4003 

continues to read as follows: 

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

■ 2. Amend § 4003.1 by: 

■ a. In paragraph (a): 

■ i. Removing the phrase ‘‘paragraph 

(b)’’ and adding in its place ‘‘paragraphs 

(d) and (e)’’ in the first sentence; 

■ ii. Removing the phrase ‘‘paragraphs 

(b)(1) through (b)(5)’’ and adding in its 

place ‘‘paragraph (d)’’ in the fourth 

sentence; and 

■ iii. Removing the phrase ‘‘paragraphs 

(b)(6) through (b)(11)’’ and adding in its 

place ‘‘paragraph (e)’’ in the fifth 

sentence; 

■ b. Revising paragraph (b); and 

■ c. Adding paragraphs (d) and (e). 

The revision and additions read as 

follows: 

§ 4003.1 Purpose and scope. 

* * * * * 

(b) Scope. This part applies to the 

initial determinations made by PBGC 

that are listed in paragraphs (d) and (e) 

of this section. 

* * * * * 

(d) Determinations subject to 

reconsideration. Any person aggrieved 

by an initial determination of PBGC 

listed in this paragraph (d) may request 

reconsideration, subject to the terms of 

this part. 

(1) Determinations with respect to 

premiums, interest and late payment 

penalties pursuant to section 4007 of 

ERISA; 

(2) Determinations with respect to 

voluntary terminations under section 

4041 of ERISA, including any of the 

following: 

(i) A determination that a notice 

requirement or a certification 

requirement under section 4041 of 

ERISA has not been met; 

(ii) A determination that the 

requirements for demonstrating distress 

under section 4041(c)(2)(B) of ERISA 

have not been met; 

(iii) A determination with respect to 

the sufficiency of plan assets for benefit 

liabilities or for guaranteed benefits; and 

(iv) A determination with respect to a 

plan terminating under section 4041(b) 

of ERISA or with respect to the 

distribution of residual assets under 

section 4044(d) of ERISA; and 

(3) Determinations with respect to 

penalties under section 4071 of ERISA. 

(e) Determinations subject to appeal. 

Any person aggrieved by an initial 

determination of PBGC listed in this 

paragraph (e) may file an appeal, subject 

to the terms of this part. 

(1) Determinations that a plan is or is 

not covered under section 4021 of 

ERISA; 

(2) Determinations of a participant’s 

or beneficiary’s benefit entitlement and 

the amount of benefit payable under a 

covered plan under sections 4022, 

4022B, and 4044 of ERISA (other than 

a determination described in paragraph 

(d)(2)(iv) of this section); 

(3) Determinations that a domestic 

relations order is or is not a qualified 

domestic relations order under section 

206(d)(3) of ERISA and section 414(p) of 

the Code; 

(4) Determinations of the amount of 

money subject to recapture pursuant to 

section 4045 of ERISA; 

(5) Determinations of the amount of 

liability under sections 4062(b)(1), 4063, 

or 4064 of ERISA; and 

(6) Determinations with respect to 

benefits payable by PBGC under section 

4050 of ERISA and part 4050 of this 

chapter. 

■ 3. Revise § 4003.3 to read as follows: 

§ 4003.3 PBGC assistance in obtaining 

information. 

(a) General. A person may request 

PBGC’s assistance in obtaining 

information if the person lacks 

information necessary— 

(1) To file a request for review 

pursuant to subpart C or D of this part, 

or to decide whether to seek review; or 

(2) To participate in an appeal 

pursuant to § 4003.57, or to decide 

whether to participate in an appeal. 

(b) Information not in PBGC’s 

possession. A person may request 

PBGC’s assistance in obtaining 

information in the possession of a party 

other than PBGC. The request must— 

(1) Be in writing; 

(2) State or describe the missing 

information, the reason why the person 

needs the information, and the reason 

why the person needs the assistance of 

PBGC in obtaining the information; and 

(3) Be submitted to the Appeals Board 

or the department that is responsible for 

reviewing the initial determination 

under this part. If the determination is 

subject to reconsideration, see § 4003.33 

for information on where to submit the 

request for assistance. If the 

determination is subject to review by 

appeal, see § 4003.53 for information on 

where to submit the request. 

(c) Information in the possession of 

PBGC. A person may request 

information in the possession of PBGC 

pursuant to the Freedom of Information 

Act and part 4901 of this chapter or the 

Privacy Act and part 4902 of this 

chapter, as applicable. See parts 4901 

and 4902 of this chapter for additional 

information. Nothing in this paragraph 

(c) limits or amends the requirements 

under part 4901 or 4902 of this chapter. 

■ 4. Revise § 4003.4 to read as follows: 

§ 4003.4 Extension of time. 

When a document is required under 

this part to be filed within a prescribed 

period of time, an extension of time to 

file will be granted only upon good 

cause shown and only when the request 

for an extension is made before the 

expiration of the time prescribed. The 

request for an extension must be in 

writing and state why additional time is 

needed and the amount of additional 

time requested. The filing of a request 

for an extension will stop the running 

of the prescribed period of time. 

Requests for extension of the time to 

submit an appeal should be sent to the 

Appeals Board; requests for extension of 

the time to submit a request for 

reconsideration should be sent to the 

department that issued the initial 

determination. When a request for an 

extension is granted, PBGC will notify 

the person requesting the extension, in 

writing, of the amount of additional 

time granted. When a request for an 

extension is denied, PBGC will notify 

the person requesting the extension in 

writing, and the prescribed period of 

time will resume running from the date 

of denial. 

§ 4003.7 [Amended] 

■ 5. Amend § 4003.7 by removing ‘‘a 

determination’’ and adding in its place 

‘‘an initial determination’’. 

§ 4003.21 [Amended] 

■ 6. Amend § 4003.21 by: 

■ a. Removing ‘‘All determinations’’ and 

adding in its place ‘‘All initial 

determinations’’; 

■ b. Removing ‘‘of the determination’’ 

and adding in its place ‘‘of the initial 

determination’’; and 


lotter on DSKBCFDHB2PROD with RULES
10284 Federal Register / Vol. 85, No. 36 / Monday, February 24, 2020 / Rules and Regulations 

■ c. Removing ‘‘subpart C or subpart D’’ 

and adding in its place ‘‘subpart C or 

D’’. 

■ 7. Amend § 4003.22 by removing ‘‘a 

determination’’ and adding in its place 

‘‘an initial determination’’ in the second 

sentence of paragraph (a) and revising 

paragraph (b) to read as follows: 

§ 4003.22 Effective date of determinations. 

* * * * * 

(b) Exception. Except for initial 

determinations listed in § 4003.1(e)(2), 

(3), and (6), PBGC may, in its discretion, 

order that the initial determination in a 

case is effective on the date it is issued. 

When PBGC makes such an order, the 

initial determination will state that it 

constitutes the final agency action 

effective on the date of issuance, there 

is no right to request review under 

subparts C and D of this part, and any 

person aggrieved by the initial 

determination has exhausted all 

administrative remedies. 

§ 4003.31 [Amended] 

■ 8. Amend § 4003.31 by removing ‘‘the 

determination’’ and adding in its place 

‘‘the initial determination’’. 

§ 4003.33 [Amended] 

■ 9. Amend § 4003.33 by removing 

‘‘reconsideration of a determination 

described in § 4003.1(b)(3)(ii)’’ and 

adding in its place ‘‘reconsideration of 

an initial determination described in 

§ 4003.1(d)(2)(ii)’’. 

■ 10. Revise § 4003.34 to read as 

follows: 

§ 4003.34 Contents of request for 

reconsideration. 

A request for reconsideration must— 

(a) Be in writing; 

(b) Be clearly designated as a request 

for reconsideration; 

(c) Specifically explain why PBGC’s 

determination is wrong and the result 

the requestor is seeking; 

(d) Describe the relevant information 

the requestor believes is known by 

PBGC and summarize any other 

information that is relevant to the 

request for reconsideration; and 

(e) Include copies of any 

documentation that supports the 

requestor’s claim or assertions. 

■ 11. Amend § 4003.35 by: 

■ a. Revising the section heading; 

■ b. Removing ‘‘Department Director’’ 

wherever it appears and adding in its 

place ‘‘Director of a department’’, 

removing ‘‘final’’ before ‘‘decision’’, and 

removing ‘‘a determination other than 

one described in § 4003.1(b)(3)(ii)’’ and 

adding in its place ‘‘an initial 

determination other than one described 

in § 4003.1(d)(2)(ii)’’ in paragraph (a)(1); 

■ c. Removing ‘‘final decision’’ and 

adding in its place ‘‘decision’’ and 

removing ‘‘a determination described in 

§ 4003.1(b)(3)(ii)’’ and adding in its 

place ‘‘an initial determination 

described in § 4003.1(d)(2)(ii)’’ in 

paragraph (a)(2); 

■ d. Removing ‘‘final decision’’ and 

adding in its place ‘‘decision’’ in 

paragraph (b); and 

■ e. Adding paragraph (c). 

The revision and addition read as 

follows: 

§ 4003.35 Decision on request for 

reconsideration. 

* * * * * 

(c) The decision on a request for 

reconsideration constitutes the final 

agency action by PBGC with respect to 

the initial determination that was the 

subject of the request for 

reconsideration and is binding on all 

persons who participated in the request 

for reconsideration. 

§ 4003.55 [Amended] 

■ 12. Amend § 4003.55(c) by removing 

‘‘1200 K Street NW, Washington, DC 

20005–4026’’ and adding in its place ‘‘as 

listed on PBGC’s website, 

www.pbgc.gov’’. 

§ 4003.57 [Amended] 

■ 13. Amend § 4003.57(a)(6) by adding 

‘‘initial’’ before ‘‘determination’’. 

§ 4003.58 [Amended] 

■ 14. Amend § 4003.58 by adding 

‘‘initial’’ before ‘‘determination’’ in the 

last sentence of paragraph (b) 

introductory text and paragraph 

(b)(1)(ii). 

§ 4003.59 [Amended] 

■ 15. Amend § 4003.59(b) by adding 

‘‘initial’’ before ‘‘determination’’. 

§ § 4003.1, 4003.2, 4003.5, 4003.6, 4003.7, 

4003.8, 4003.9, 4003.10, 4003.22, 4003.31, 

4003.33, 4003.35, 4003.54, 4003.55, 4003.57, 

4003.59, and 4003.60 [Amended] 

■ 16. Remove the words ‘‘the PBGC’’ 

and ‘‘The PBGC’’ and add in their places 

the word ‘‘PBGC’’ in the following 

sections: 

■ a. Section 4003.1(a) and (c); 

■ b. Section 4003.2; 

■ c. Section 4003.5; 

■ d. Section 4003.6; 

■ e. Section 4003.7; 

■ f. Section 4003.8; 

■ g. Section 4003.9; 

■ h. Section 4003.10; 

■ i. Section 4003.22(a); 

■ j. Section 4003.31; 

■ k. Section 4003.33; 

■ l. Section 4003.35(a); 

■ m. Section 4003.54(b); 

■ n. Section 4003.55(c); 

■ o. Section 4003.57(a)(6); 

■ p. Section 4003.59(b); and 

■ q. Section 4003.60. 

§ § 4003.32 and 4003.52 [Amended] 

■ 17. Remove the words ‘‘the PBGC’s’’ 

and add in their place the word 

‘‘PBGC’s’’ wherever they occur in 

§§ 4003.32 and 4003.52. 

§ § 4003.2, 4003.21, 4003.22, 4003.56, 

4003.57, 4003.58, 4003.59, and 4003.60 

[Amended] 

■ 18. Remove the word ‘‘shall’’ and add 

in its place the word ‘‘will’’ wherever it 

occurs in the following sections: 

■ a. Section 4003.2; 

■ b. Section 4003.21; 

■ c. Section 4003.22(a); 

■ d. Section 4003.56(c); 

■ e. Section 4003.57(a); 

■ f. Section 4003.58(b); 

■ g. Section 4003.59(a) and (c); and 

■ h. Section 4003.60. 

§ § 4003.6, 4003.8, 4003.33, 4003.53, and 

4003.54 [Amended] 

■ 19. Remove the word ‘‘shall’’ and add 

in its place the word ‘‘must’’ wherever 

it occurs in the following sections: 

■ a. Section 4003.6; 

■ b. Section 4003.8; 

■ c. Section 4003.33; 

■ d. Section 4003.53; and 

■ e. Section 4003.54(a) and (b). 

Issued in Washington, DC. 

Gordon Hartogensis, 

Director, Pension Benefit Guaranty 

Corporation. 

[FR Doc. 2020–02742 Filed 2–21–20; 8:45 am] 

BILLING CODE 7709–02–P 

DEPARTMENT OF DEFENSE 

Department of the Air Force 

32 CFR Part 903 

[Docket ID: USAF–2019–HQ–0007] 

RIN 0701–AA92 

Air Force Academy Preparatory School 

AGENCY: Department of the Air Force, 

DoD. 

ACTION: Final rule. 

SUMMARY: This final rule removes the 

regulation concerning how the 

Department of the Air Force accesses 

individuals into the Air Force Academy 

Preparatory School. This part is 

outdated, contains internal guidance, 

reiterates statutory law, and is otherwise 

subject to the military function 

exemption to rulemaking. Candidates to 

the preparatory school are individually 


lotter on DSKBCFDHB2PROD with RULES