This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

68542 

Vol. 72, No. 233 

Wednesday, December 5, 2007 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 51 

[Docket # AMS–FV–07–0010; FV–06–302] 

United States Standards for Grades of 

Sweet Cherries 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Advanced notice of proposed 

rulemaking; withdrawal. 

SUMMARY: The Agricultural Marketing 

Service (AMS) is withdrawing the 

notice soliciting comments on its 

proposal to amend the voluntary United 

States Standards for Grades of Sweet 

Cherries. After reviewing and 

considering the comments received, the 

agency has decided not to proceed with 

this action. 

EFFECTIVE DATE: December 5, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Vincent J. Fusaro, Standardization 

Section, Fresh Products Branch, (202) 

720–2185. The United States Standards 

for Grades of Sweet Cherries are 

available by accessing the Fresh 

Products Branch Web site at: http:// 

www.ams.usda.gov/standards/ 

stanfrfv.htm. 

Background 

AMS identified the United States 

Standards for Grades of Sweet Cherries 

for possible revisions. The revision 

would have included adding 

standardized row sizes into the 

standard. These standardized row sizes 

would establish a uniform basis for 

defining size in the industry. The 

standards were last revised on May 7, 

1971. 

On March 30, 2007, AMS published a 

proposed rule in the Federal Register 

(72 FR 15055) soliciting comments on a 

possible revision to the United States 

Standards for Grades of Sweet Cherries. 

The sixty-day comment period ended 

May 29, 2007. 

Three comments were received. All 

three comments received, one from a 

grower, packer, shipper, another from a 

separate grower, packer, shipper, and 

one from an association representing 

independent wholesale receivers, were 

in opposition to revising the United 

States Standards for Grades of Sweet 

Cherries. The first commentor stated 

that the current standard has not been 

a problem as it is currently written. The 

second commenter stated that adding 

standardized row sizes would limit the 

ability of farmers to market their sweet 

cherry crop. This commenter also stated 

that the market already enforced sizing 

standards that are firm but flexible, 

which is necessary because sweet 

cherries are highly perishable and 

subject to fluctuations in crop size and 

market conditions. The third commenter 

stated that there was concern about the 

viability of the proposal. This 

commentor suggested several different 

solutions, however, those solutions are 

not within the scope of this proposal 

and therefore will not be addressed in 

this action. These comments are 

available by accessing the http:// 

www.regulations.gov Web site. 

After reviewing and considering the 

comments received, AMS has decided 

not to proceed with the action. 

Therefore, the proposed rule published 

March 30, 2007 (72 FR 15055) is 

withdrawn. 

Authority: 7 U.S.C. 1621–1627. 

Dated: November 29, 2007. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E7–23531 Filed 12–4–07; 8:45 am] 

BILLING CODE 3410–02–P 

PENSION BENEFIT GUARANTY 

CORPORATION 

29 CFR Parts 4041 and 4042 

RIN 1212–AB14 

Disclosure of Termination Information 

AGENCY: Pension Benefit Guaranty 

Corporation. 

ACTION: Proposed rule. 

SUMMARY: This is a proposed rule to 

implement section 506 of the Pension 

Protection Act of 2006 (Pub. L. 109–280) 

which amends sections 4041 and 4042 

of ERISA. These amendments require 

that a plan administrator disclose 

information it has submitted to PBGC in 

connection with a distress termination 

filing, and that a plan administrator or 

plan sponsor disclose information it has 

submitted to PBGC in connection with 

a PBGC-initiated termination. The new 

provisions also require PBGC to disclose 

the administrative record in a PBGCinitiated termination. The disclosures 

must be made to an affected party upon 

request. 

DATES: Comments must be submitted on 

or before February 4, 2008. 

ADDRESSES: Comments, identified by 

Regulatory Information Number (RIN 

1212–AB14), may be submitted by any 

of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the Web 

site instructions for submitting 

comments. 

• E-mail: reg.comments@pbgc.gov. 

• Fax: 202–326–4224. 

• Mail or Hand Delivery: Legislative 

and Regulatory Department, Pension 

Benefit Guaranty Corporation, 1200 K 

Street, NW., Washington, DC 20005– 

4026. 

Comments received, including personal 

information provided, will be posted to 

http://www.pbgc.gov. Copies of 

comments may also be obtained by 

writing to Disclosure Division, Office of 

the General Counsel, Pension Benefit 

Guaranty Corporation, 1200 K Street, 

NW., Washington, DC 20005–4026, or 

calling 202–326–4040 during normal 

business hours. (TTY and TDD users 

may call the Federal relay service tollfree at 1–800–877–8339 and ask to be 

connected to 202–326–4040.) 

FOR FURTHER INFORMATION CONTACT: 

Kenneth Cooper, Attorney, Office of the 

General Counsel; or Catherine Klion, 

Manager, Regulatory and Policy 

Division, Legislative and Regulatory 

Department, Pension Benefit Guaranty 

Corporation, 1200 K Street, NW., 

Washington, DC 20005–4026; 202–326– 

4024. (TTY/TDD users may call the 

Federal relay service toll-free at 1–800– 

877–8339 and ask to be connected to 

202–326–4024.) 

SUPPLEMENTARY INFORMATION: 

Background 

Pension Benefit Guaranty Corporation 

(‘‘PBGC’’) administers the pension plan 

termination insurance program under 

Title IV of the Employee Retirement 

Income Security Act of 1974, as 

amended (‘‘ERISA’’), 29 U.S.C. 1301– 

1461. Sections 4041 and 4042 of ERISA 


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Federal Register / Vol. 72, No. 233 / Wednesday, December 5, 2007 / Proposed Rules 68543 

govern the termination of singleemployer defined benefit pension plans 

that are subject to Title IV. A plan 

administrator may initiate a distress 

termination by sending a notice of 

intent to terminate to all affected parties 

pursuant to section 4041(a)(2). Under 

section 4042 of ERISA, PBGC may itself 

initiate proceedings to terminate a 

pension plan if it determines that 

certain conditions are present. 

Under section 4041(c), a singleemployer plan may terminate in a 

distress termination if PBGC determines 

that the requirements of section 

4041(c)(2)(B) are met. Before PBGC can 

make this determination, the plan 

administrator must provide certain 

information to PBGC pursuant to section 

4041(c)(2)(A). Under section 4041.45(c) 

of PBGC’s regulation on Termination of 

Single Employer Plans, 29 CFR part 

4041, PBGC may also require the 

submission of additional information. 

PBGC determines whether a plan 

meets the criteria for a distress 

termination or a PBGC-initiated 

termination through an informal 

adjudicatory process. If PBGC staff 

believe that a plan should be 

terminated, a written recommendation 

is prepared. With certain exceptions, the 

recommendation is then reviewed by 

the Trusteeship Working Group 

(‘‘TWG’’), an interdepartmental body 

comprised of representatives from 

PBGC’s financial, actuarial, policy, 

regulatory, and legal departments. If the 

TWG agrees with the staff 

recommendation, it forwards its own 

recommendation concerning the 

termination to the Director or other 

designated official (‘‘Deciding Official’’). 

All determinations are documented in a 

trusteeship decision record. 

As part of the informal adjudicatory 

process, PBGC staff may present or 

make available to the TWG information 

and documents that relate to a 

termination recommendation and, if the 

TWG recommends termination, to the 

Deciding Official. This material may 

include information that PBGC has 

obtained from the plan sponsor or plan 

administrator, as well as other 

information that PBGC has obtained or 

generated. 

For PBGC-initiated terminations, if 

the Deciding Official approves the 

termination, PBGC sends a notice to the 

plan administrator that the 

determination has been made (‘‘Notice 

of Determination’’). The plan may then 

be terminated by agreement or PBGC 

may apply to the appropriate district 

court for a decree adjudicating that the 

plan must be terminated. 

PPA 2006 Amendments 

On August 17, 2006, the President 

signed into law the Pension Protection 

Act of 2006, Pub. L. 109–280 (‘‘PPA 

2006’’). Section 506 of PPA 2006 adds 

disclosure provisions to both sections 

4041 and 4042 of ERISA. These 

provisions allow an affected party to 

request information related to a plan 

termination from the plan administrator 

in the case of a distress termination 

under section 4041, and from the plan 

administrator, plan sponsor, and PBGC 

in the case of a termination under 

section 4042. ‘‘Affected party’’ is 

defined in section 4001(a)(21) of ERISA 

to include each participant in the plan, 

each beneficiary under the plan, each 

employee organization representing 

plan participants, and PBGC. 

With respect to distress terminations, 

the new provisions require that a plan 

administrator that has filed a Notice of 

Intent to Terminate must provide to an 

affected party, upon request, 

information submitted to PBGC in 

conjunction with the distress 

termination. This information must be 

provided not later than 15 days after 

receipt of the request. One of the new 

provisions allows a court to limit 

disclosure of confidential information to 

an authorized representative of the 

participants and beneficiaries that 

agrees to keep the information 

confidential. 

With respect to PBGC-initiated 

terminations, the new provisions 

require that, following receipt by the 

plan administrator of a Notice of 

Determination, the plan sponsor, plan 

administrator, and PBGC must provide 

information related to the termination to 

an affected party upon request. The plan 

sponsor or plan administrator must, not 

later than 15 days after receipt of a 

request, provide copies of any 

information it provided to PBGC in 

connection with the termination. PBGC 

must, not later than 15 days after receipt 

of a request, provide a copy of the 

administrative record, including the 

trusteeship decision record. As in the 

distress termination provisions, one of 

the new provisions allows a court to 

limit disclosure of confidential 

information to an authorized 

representative. The new provisions are 

applicable to terminations initiated on 

or after August 17, 2006. 

Proposed Regulation 

General Provisions 

Section 506 of PPA 2006 generally 

requires that information be provided to 

an affected party upon request. The 

proposed regulation requires that all 

requests to the plan administrator, plan 

sponsor, or PBGC be made in writing, 

and contain information relating to the 

plan, and the requestor’s status as an 

affected party. 

Section 506 of PPA 2006 requires that 

the plan administrator, plan sponsor, or 

PBGC provide information not later than 

15 days after receipt of a request. A plan 

administrator or plan sponsor must also 

provide information not later than 15 

days after the submission of additional 

information to PBGC. For this purpose, 

because a large amount of information 

may need to be disclosed in a short 

time, PBGC is interpreting ‘‘day’’ to 

mean ‘‘business day,’’ as defined in 

§ 4000.22 of the PBGC’s regulation on 

Filing, Issuance, Computation of Time, 

and Record Retention, 29 CFR part 

4000. 

Sections 4041(c)(2)(D)(iii) and 

4042(c)(3)(D) of ERISA, added by PPA 

2006, state that PBGC may prescribe the 

form and manner of the provision of 

information under the respective 

provisions. These provisions state that 

information may be delivered ‘‘in 

written, electronic or other appropriate 

form to the extent such form is 

reasonably accessible’’ to the individual 

who makes the request. PBGC’s issuance 

rules in part 4000, subpart B, are 

appropriate for the provision of 

information under sections 

4041(c)(2)(D)(iii) and 4042(c)(3)(D). 

Accordingly, the provision of 

information under section 

4041(c)(2)(D)(iii) will be governed by 

§ 4041.3 of PBGC’s current regulation, 

which provides that subpart B of part 

4000 applies to issuances relating to 

plan terminations. The date of issuance 

will be determined in accordance with 

part 4000, subpart C, as provided in 

§ 4041.3. 

With respect to a PBGC-initiated 

termination, the proposed regulation 

requires that a plan administrator or 

plan sponsor respond to a request under 

section 4042(c)(3)(D) in accordance with 

part 4000, subpart B. The proposed 

regulation further provides that the date 

of issuance is determined in accordance 

with the rules in part 4000, subpart C. 

Sections 4041(c)(2)(D)(iii)(II) and 

4042(c)(3)(D)(ii) provide that a plan 

administrator, in the case of a distress 

termination, and a plan sponsor, in the 

case of a PBGC-initiated termination, 

may charge a reasonable fee for any 

information provided in other than 

electronic form. Unlike the ‘‘form and 

manner’’ provisions, the provisions on 

fees do not give PBGC authority to 

prescribe what constitutes a reasonable 

fee. PBGC does not believe it can 

prescribe such fees in the absence of 

specific statutory authorization. 


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68544 Federal Register / Vol. 72, No. 233 / Wednesday, December 5, 2007 / Proposed Rules 

Information To Be Disclosed by Plan 

Administrator in Distress Terminations 

Under section 4041(a)(2) of ERISA, a 

plan administrator that seeks to 

terminate a plan in a distress 

termination must provide a notice of 

intent to terminate to each affected 

party. The notice must include 

information required under PBGC’s 

regulations. Section 4041.43 of PBGC’s 

regulation on Termination of Single 

Employer Plans specifies the 

information that must be included in a 

notice of intent to terminate that is 

issued to affected parties other than 

PBGC. The regulation also requires that 

a separate notice with additional 

information be filed with PBGC on 

PBGC Form 600, Distress Termination, 

Notice of Intent to Terminate. After the 

notices of intent to terminate have been 

issued to affected parties other than 

PBGC and the Form 600 has been filed 

with PBGC, additional information must 

be submitted to PBGC at a later date in 

accordance with section 4041(c)(2) of 

ERISA and § 4041.45 of the regulation. 

Section 4041(c)(2)(D)(i) of ERISA, 

added by PPA 2006, states in relevant 

part: 

A plan administrator that has filed a notice 

of intent to terminate under subsection (a)(2) 

shall provide to an affected party any 

information provided to the corporation 

under subsection (a)(2) not later than 15 days 

after—

(I) receipt of a request from the affected 

party for the information; or 

(II) the provision of new information to the 

corporation relating to a previous request. 

PBGC is interpreting this provision as 

requiring disclosure of the Form 600 

and any additional information 

submitted to PBGC under section 

4041(c)(2) of ERISA. PBGC recognizes 

that because the statute references only 

section 4041(a)(2), which addresses the 

notice of intent to terminate, it is 

possible to read section 4041(c)(2)(D)(i) 

as requiring that a plan administrator 

disclose only the Form 600. Such a 

narrow reading, however, would be at 

odds with Congress’s intent to provide 

greater disclosure of information 

submitted to PBGC in connection with 

a distress termination. 

The Technical Explanation of PPA 

2006 prepared by the staff of the Joint 

Committee on Taxation states that 

section 506 requires ‘‘a plan 

administrator to provide an affected 

party with any information provided to 

the PBGC in connection with the 

proposed plan termination.’’ The broad 

reference to ‘‘any information * * * in 

connection with the proposed plan 

termination’’—without the limitation to 

section 4041(a)(2)—suggests the 

required disclosures include 

information submitted to PBGC under 

section 4041(c)(2), in addition to the 

Form 600 filed pursuant to section 

4041(a)(2) and the implementing 

regulation. Further, because a plan 

administrator files the Form 600 once, 

requiring disclosure of only the Form 

600 would give no effect to the 

requirement in section 

4041(c)(2)(D)(i)(II) that a plan 

administrator must provide copies of 

new information it submits to PBGC not 

later than 15 days after such 

submission. 

In light of these considerations, the 

proposed regulation provides that, upon 

written request of an affected party, a 

plan administrator must provide copies 

of any information submitted to PBGC 

pursuant to sections 4041(a)(2) and 

4041(c)(2) of ERISA and sections 

4041.43 and 4041.45 of the regulation 

not later than 15 business days after 

receipt of the request. If PBGC Form 600 

has not been filed with PBGC at the time 

of the request, the proposed regulation 

requires the plan administrator to 

provide the information not later than 

15 business days after PBGC Form 600 

is filed. In addition, the proposed 

regulation requires that if the plan 

administrator has provided information 

in response to a request and later 

submits additional information to PBGC 

in connection with the proposed 

distress termination, the plan 

administrator must, not later than 15 

business days after the submission, 

provide copies of that information to 

any affected party that has made a 

previous request. 

If a plan administrator fails to provide 

information under section 

4041(c)(2)(D)(i) of ERISA and the 

implementing regulation within the 

specified timeframe, PBGC may assess 

penalties under section 4071 of ERISA. 

Information To Be Disclosed by Plan 

Administrator and Plan Sponsor in a 

Termination Initiated by PBGC 

Section 4042(c)(3) of ERISA imposes 

disclosure requirements on the plan 

administrator, the plan sponsor, and 

PBGC in connection with a PBGCinitiated termination. With regard to the 

plan sponsor and plan administrator, 

the statute provides that, upon request: 

A plan sponsor or plan administrator of a 

single-employer plan that has received a 

notice from [PBGC] of a determination that 

the plan should be terminated under this 

section shall provide to an affected party any 

information provided to the corporation in 

connection with the plan termination. 

Section 4042(c)(3)(A)(i). 

Under this provision, an affected 

party may request termination 

information only after the plan 

administrator has received a Notice of 

Determination from PBGC that the plan 

should be terminated. The proposed 

regulation adopts an assumed receipt 

date of 3 business days after PBGC 

issues the Notice of Determination. 

Thus, a request for information may be 

made on or after the third business day 

after the Notice of Determination is 

issued. Once such a request is received 

by the plan administrator or plan 

sponsor, the information must be 

provided not later than 15 business days 

after receipt of the request. As in the 

case of a distress termination, if new 

information relating to the request is 

submitted to PBGC, copies must be 

provided, not later than 15 business 

days after the submission, to any 

affected party that has made a previous 

request. 

A plan administrator or plan sponsor 

that fails to provide information 

requested under section 4042(c)(3) of 

ERISA and the implementing regulation 

within the specified timeframe may be 

subject to penalties under section 4071 

of ERISA. 

Disclosure of Administrative Record by 

PBGC in Terminations Initiated by 

PBGC 

Section 4042(c)(3)(A)(ii) of ERISA 

states that, upon request of an affected 

party, PBGC ‘‘shall provide a copy of the 

administrative record, including the 

trusteeship decision record of a 

termination of a plan’’ not later than 15 

days after receipt of the request. The 

right to request a copy of the 

administrative record arises only after a 

Notice of Determination that the plan 

should be terminated is received by the 

plan administrator. As in the provisions 

relating to requests for information from 

the plan administrator or plan sponsor, 

the proposed regulation adopts an 

assumed receipt date of 3 business days 

after PBGC issues the Notice of 

Determination. Thus, a request for the 

administrative record may be made on 

or after the third business day after the 

Notice of Determination is issued. The 

proposed regulation further provides 

that PBGC will send the administrative 

record to the affected party not later 

than 15 business days after it receives 

the request, and will use measures 

reasonably calculated to ensure actual 

receipt (including electronic measures). 

This standard is analogous to the 

requirements in Part 4000, subpart B, 

that the plan administrator and plan 

sponsor must follow. 


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Disclosure of Confidential Information 

by Plan Administrator and Plan 

Sponsor 

Sections 4041(c)(2)(D)(ii)(I) and 

4042(c)(3)(C)(i) of ERISA prohibit the 

disclosure by the plan administrator, in 

connection with a distress termination, 

and the plan administrator or plan 

sponsor, in connection with a PBGCinitiated termination, of information 

‘‘that may directly or indirectly be 

associated with, or otherwise identify, 

an individual participant or 

beneficiary.’’ The proposed regulation 

incorporates this restriction. 

In addition, both sections 

4041(c)(2)(D)(ii)(I) and 4042(c)(3)(C)(i) 

of ERISA provide a means for a plan 

sponsor or plan administrator to seek to 

restrict the disclosure of confidential 

information that would be exempt from 

disclosure under Freedom of 

Information Act (‘‘FOIA’’). Under 

section 552(b)(4) of FOIA, an agency has 

discretion to withhold documents on 

matters that are ‘‘trade secrets and 

commercial or financial information 

obtained from a person and privileged 

or confidential.’’ Sections 

4041(c)(2)(D)(ii)(II) and 4042(c)(3)(C)(ii) 

provide that a court may limit 

disclosure of confidential information 

described in section 552(b) of FOIA, 5 

U.S.C. 552(b), to ‘‘authorized 

representatives * * * of the participants 

or beneficiaries that agree to ensure the 

confidentiality of such information.’’

Section 4041(c)(2)(D)(iv) defines 

‘‘authorized representative’’ for 

purposes of both sections 4041 and 4042 

as ‘‘any employee organization 

representing participants in the pension 

plan.’’ Accordingly, the proposed 

regulation provides that a plan 

administrator that has received a request 

for information in connection with a 

distress termination, and a plan 

administrator or plan sponsor that has 

received a request for information in 

connection with a PBGC-initiated 

termination, may seek a court order 

under which confidential information 

described in 5 U.S.C. 552(b) will be 

disclosed only to authorized 

representatives (within the meaning of 

section 4041(c)(2)(D)(iv) of ERISA) that 

agree to ensure the confidentiality of 

such information, and will not be 

disclosed to other affected parties. 

Typically, the authorized 

representative will be a labor union in 

a plan maintained in conjunction with 

a collective bargaining agreement. 

However, there may be no authorized 

representative where the participants 

are not covered under a collective 

bargaining agreement. The new PPA 

2006 provisions do not address limiting 

disclosure of confidential information in 

such cases. 

Disclosure of Confidential Information 

by PBGC 

By its terms, section 4042(c)(3)(C)(i) of 

ERISA, which prohibits disclosure of 

information that identifies an individual 

participant or beneficiary, applies to a 

plan administrator or plan sponsor, but 

not to PBGC. This may be because PBGC 

is already prohibited from disclosing 

such information. Under the Privacy 

Act, 5 U.S.C. 552a, PBGC is prohibited 

from disclosing personally identifiable 

information with regard to a participant 

or beneficiary, without the individual’s 

written consent. There are narrow 

exceptions stated in 5 U.S.C. 552a(b), 

but none apply to disclosure of 

identifying information that may be part 

of the administrative record in a PBGCinitiated termination. Accordingly, the 

proposed regulation states that PBGC 

shall not disclose any portions of the 

administrative record that are 

prohibited from disclosure under 5 

U.S.C. 552a. 

With respect to disclosure of 

confidential information, PBGC believes 

that, under the provisions added by 

section 506 of PPA 2006, it must 

disclose any part of the administrative 

record that contains confidential 

information, except as limited by a 

court. Unlike FOIA, which specifies 

categories of information that are 

exempt from disclosure, there are no 

exemptions under section 4042(c)(3) of 

ERISA. Rather, disclosure may only be 

limited by a court to the extent provided 

in section 4042(c)(3)(C)(ii). 

In addition, PBGC believes that the 

Trade Secrets Act, 18 U.S.C. 1805, does 

not apply to disclosure of the 

administrative record under section 

4042(c)(3) of ERISA. The Trade Secrets 

Act prohibits disclosure of trade secrets 

and related information ‘‘to any extent 

not authorized by law.’’ PBGC believes 

that the disclosure requirements with 

respect to PBGC, as set forth in section 

4042(c)(3), compel PBGC to disclose the 

administrative record upon request, 

subject only to limitation by a court as 

provided in section 4042(c)(3)(C)(ii). As 

a result, such disclosure is ‘‘authorized 

by law.’’

Additionally, PBGC does not believe 

that information it receives under 

sections 4010 or 4043 of ERISA that 

becomes part of an administrative 

record is exempt from disclosure under 

section 4042(c)(3). Information and 

documents submitted to PBGC under 

those sections are ‘‘exempt from 

disclosure under [FOIA], and * * * 

may not be made public, except as may 

be relevant to any administrative or 

judicial action or proceeding.’’ 29 U.S.C. 

1310(c), 1343(f). The exemption from 

disclosure under FOIA does not apply 

to disclosure of the administrative 

record because requests for the 

administrative record are made under 

section 4042(c)(3), not under FOIA. In 

addition, since material in the 

administrative record relates to an 

administrative action or proceeding, the 

restriction on making such material 

public does not apply. 

To address the potential disclosure of 

confidential information that is part of 

an administrative record, the proposed 

regulation provides that PBGC will 

promptly notify the plan administrator 

and plan sponsor upon receipt of a 

request for the administrative record 

from an affected party. PBGC expects 

that this notification will be made not 

later than the second business day after 

receipt of the request. Under the 

proposed regulation, the plan 

administrator or plan sponsor may then 

seek a court order under which 

disclosure of those portions of the 

administrative record that contain 

confidential information described in 5 

U.S.C. 552(b) will be made only to 

authorized representatives (within the 

meaning of section 4041(c)(2)(D)(iv) of 

ERISA) that agree to ensure the 

confidentiality of such information, and 

will not be disclosed to other affected 

parties. The proposed regulation further 

provides that if PBGC receives such a 

court order prior to the 15th business 

day after PBGC receives a request for the 

administrative record, PBGC will 

disclose confidential information that is 

part of the administrative record as 

provided in the order. 

Applicability 

The amendments in this proposed 

regulation would be applicable to 

terminations initiated on or after August 

17, 2006, but only to requests for 

information made on or after the 

effective date of the final rule. 

Compliance With Rulemaking 

Guidelines 

E.O. 12866 

The PBGC has determined, in 

consultation with the Office of 

Management and Budget, that this rule 

is a ‘‘significant regulatory action’’

under Executive Order 12866. The 

Office of Management and Budget has 

therefore reviewed this notice under 

E.O. 12866. Pursuant to section 1(b)(1) 

of E.O. 12866 (as amended by E.O. 

13422), PBGC identifies the following 

specific problems that warrant this 

agency action: 


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68546 Federal Register / Vol. 72, No. 233 / Wednesday, December 5, 2007 / Proposed Rules 

• The statute does not specify the 

form and manner in which information 

requested must be provided to the 

affected party, but instead states that 

PBGC may prescribe such requirements. 

Without rules for how the information 

is to be provided, plan administrators 

and plan sponsors will not know 

whether the method they choose for 

providing requested information is 

appropriate. 

• There is uncertainty in the statute 

with respect to the information that a 

plan administrator that has filed a 

notice of intent to terminate a plan in a 

distress termination must provide, upon 

request, to an affected party. Without 

rules for what information is to be 

provided, plan administrators will not 

know what information they must 

provide, and affected parties will not 

know what information they are entitled 

to receive. 

• There is uncertainty in the statute 

with respect to determining the date as 

of which an affected party may request 

information provided to PBGC in 

connection with a PBGC-initiated 

termination. Without clarification, 

affected parties will not know when 

they can begin to request information, 

and plan administrators, plan sponsors, 

and PBGC will not know when their 

obligation to provide information arises. 

• Unlike FOIA, which specifies 

categories of information that are 

exempt from disclosure, section 

4042(c)(3)(c)(ii) of ERISA provides only 

that a court may limit disclosure by 

PBGC of confidential information 

described in section 552(b) to an 

authorized representative. The statute 

does not specify when and by whom 

court limitation may be sought in cases 

where PBGC receives a request for the 

administrative record. Without 

clarification, plan administrators and 

plan sponsors will not know how 

disclosure of confidential information 

they submitted to PBGC can be limited. 

Regulatory Flexibility Act 

PBGC certifies under section 605(b) of 

the Regulatory Flexibility Act (5 U.S.C. 

601 et seq.) that the amendments in this 

proposed regulation would not have a 

significant economic impact on a 

substantial number of small entities. 

Accordingly, as provided in section 605 

of the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.), sections 603 and 604 

do not apply. 

The proposed rule would implement 

statutory changes made by Congress. It 

would prescribe the form and manner 

for providing requested information and 

clarify the type of information that must 

be provided and the timeframes for 

providing such information. It would 

also provide for notification by PBGC to 

the plan sponsor and plan administrator 

of a request for an administrative record 

so that the plan sponsor or plan 

administrator can, if it chooses, seek a 

court order limiting disclosure of 

confidential information as provided in 

the statute. These provisions impose no 

significant burden beyond the burden 

imposed by statute. 

Paperwork Reduction Act 

PBGC is submitting the information 

collection requirements under this 

proposed regulation to the Office of 

Management and Budget for review and 

approval under the Paperwork 

Reduction Act. Copies of PBGC’s 

request may be obtained free of charge 

by contacting the Disclosure Division of 

the Office of the General Counsel of 

PBGC, 1200 K Street, NW., Washington, 

DC 20005, 202–326–4040. 

This proposed regulation would 

modify information collection 

requirements under OMB control 

number 1212–0036 (expires September 

30, 2007). 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. 

PBGC needs this information in order 

to provide sufficient information to 

affected parties about the termination or 

possible termination of their pension 

plans. 

Section 506 of PPA 2006 has been in 

effect for less than a year, and PBGC is 

not aware of any requests for 

information that have been made to date 

under its provisions. PBGC estimates 

that 100 plans with a total of 100,000 

participants will terminate annually, 

and that 10,000 participants (and other 

affected parties) will annually make 

requests for information. PBGC 

estimates that the total annual burden 

for the collection of information will be 

about 30,000 hours and $250,000. 

Comments on the paperwork 

provisions under this proposed 

regulation should be mailed to the 

Office of Information and Regulatory 

Affairs, Office of Management and 

Budget, Attention: Desk Officer for 

Pension Benefit Guaranty Corporation, 

Washington, DC 20503. Although 

comments may be submitted through 

February 4, 2008, the Office of 

Management and Budget requests that 

comments be received on or before 

January 4, 2008 to ensure their 

consideration. Comments may address 

(among other things)—

• Whether the proposed collection of 

information is needed for the proper 

performance of PBGC’s functions and 

will have practical utility; 

• The accuracy of PBGC’s estimate of 

the burden of the proposed collection of 

information, including the validity of 

the methodology and assumptions used; 

• Enhancement of the quality, utility, 

and clarity of the information to be 

collected; and 

• Minimizing the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 

List of Subjects 

29 CFR Part 4041 

Disclosure, Pensions, Termination of 

pension plans. 

29 CFR Part 4042 

Disclosure, Pensions, Termination of 

pension plans. 

For the reasons given above, PBGC 

proposes to amend 29 CFR chapter XL 

as follows: 

PART 4041—TERMINATION OF 

SINGLE-EMPLOYER PLANS 

1. The authority citation for part 4041 

continues to read as follows: 

Authority: 29 U.S.C. 1302(b)(3), 1341, 

1344, 1350. 

2. New § 4041.51 is added to 29 CFR 

part 4041 to read as follows: 

§ 4041.51 Disclosure of information by 

plan administrator in distress termination. 

(a) Request for Information. 

(1) In general. If a notice of intent to 

terminate under § 4041.43 is issued with 

respect to a plan, an affected party may 

make a request to the plan administrator 

for information submitted to PBGC 

under sections 4041(a)(2) and 4041(c)(2) 

of ERISA and §§ 4041.43 and 4041.45. 

(2) Requirements. A request under 

paragraph (a) of this section must: 

(i) Be in writing to the plan 

administrator; 

(ii) State the name of the plan and that 

the request is for information submitted 

to PBGC with respect to the application 

for a distress termination of the plan; 

(iii) State the name of the person 

making the request for information and 

such person’s relationship to the plan 

(e.g., plan participant), and that such 

relationship meets the definition of 

affected party under § 4001.2 of this 

chapter; and 

(iv) Be signed by the person making 

the request. 

(b) Response by Plan Administrator. 

(1) Information. The information that 

a plan administrator must provide in 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 72, No. 233 / Wednesday, December 5, 2007 / Proposed Rules 68547 

response to a request under paragraph 

(a) of this section includes the PBGC 

Form 600, and any information 

submitted to PBGC pursuant to section 

4041(c)(2) of ERISA and § 4041.45. 

(2) Timing of response. A plan 

administrator that receives a request 

under paragraph (a) of this section must 

provide the information requested not 

later than the 15th business day (as 

defined in § 4000.22 of this chapter) 

after receipt of the request. 

(3) Deferral of due date. If, at the time 

the plan administrator receives a request 

under paragraph (a) of this section, the 

plan administrator has not filed a PBGC 

Form 600, the plan administrator must 

provide the information requested 

under paragraph (a) not later than the 

15th business day (as defined in 

§ 4000.22 of this chapter) after a PBGC 

Form 600 is filed with PBGC. 

(4) Supplemental responses. If, at any 

time after the later of the receipt of a 

request under paragraph (a) of this 

section, or the filing of PBGC Form 600, 

the plan administrator submits 

additional information to PBGC with 

respect to the plan termination under 

section 4041(c)(2) of ERISA and 

§ 4041.45, the plan administrator must, 

not later than the 15th business day (as 

defined in § 4000.22 of this chapter) 

after each additional submission, 

provide the additional information to 

any affected party that has made a 

request under paragraph (a) of this 

section. 

(5) Confidential information. 

(i) In responding to a request under 

paragraph (a) of this section, the plan 

administrator shall not provide 

information that may, directly or 

indirectly, identify an individual 

participant or beneficiary of the plan. 

(ii) A plan administrator that has 

received a request under paragraph (a) 

of this section may seek a court order 

under which confidential information 

described in section 552(b) of title 5, 

United States Code—

(A) Will be disclosed only to 

authorized representatives (within the 

meaning of section 4041(c)(2)(D)(iv) of 

ERISA) that agree to ensure the 

confidentiality of such information, and, 

(B) Will not be disclosed to other 

affected parties. 

3. New part 4042 is added to chapter 

XL to read as follows: 

PART 4042—SINGLE-EMPLOYER 

PLAN TERMINATION INITIATED BY 

PBGC 

Subpart A—General Provisions 

Sec. 

4042.1 Purpose and scope. 

4042.2 Definitions. 

4042.3 Issuance rules. 

Subpart B—Reserved 

Subpart C—Disclosure 

4042.4 Disclosure of information by plan 

administrator or plan sponsor. 

4042.5 Disclosure of administrative record 

by PBGC. 

Authority: 29 U.S.C. 1302(b)(3), 1342. 

Subpart A—General Provisions 

§ 4042.1 Purpose and scope. 

This part sets forth rules and 

procedures relating to single-employer 

plan terminations initiated by PBGC 

under section 4042 of ERISA. 

§ 4042.2 Definitions. 

The following terms are defined in 

§ 4001.2 of this chapter: affected party, 

ERISA, PBGC, and plan administrator. 

§ 4042.3 Issuance rules. 

PBGC applies the rules in subpart B 

of part 4000 of this chapter to determine 

permissible methods of issuance under 

this part. PBGC applies the rules in 

subpart C of part 4000 of this chapter to 

determine the date that an issuance 

under this part was provided. 

Subpart B—Reserved 

Subpart C—Disclosure 

§ 4042.4 Disclosure of information by plan 

administrator or plan sponsor. 

(a) Request for Information. 

(1) In general. Beginning on the third 

business day (as defined in § 4000.22 of 

this chapter) after PBGC has issued a 

notice under section 4042 of ERISA that 

a plan should be terminated, an affected 

party may make a request to the plan 

sponsor or the plan administrator (or 

both) for any information that such plan 

administrator or plan sponsor has 

submitted to PBGC in connection with 

the plan termination. 

(2) Requirements. A request under 

paragraph (a) of this section must: 

(i) Be in writing to the plan 

administrator or plan sponsor; 

(ii) State the name of the plan and that 

the request is for information submitted 

to PBGC in connection with the plan 

termination; 

(iii) State the name of the person 

making the request for information and 

such person’s relationship to the plan 

(e.g., plan participant), and that such 

relationship meets the definition of 

affected party under § 4001.2 of this 

chapter; and 

(iv) Be signed by the person making 

the request. 

(b) Response by Plan Administrator or 

Plan Sponsor. 

(1) Timing of response. A plan 

administrator or plan sponsor that 

receives a request under paragraph (a) of 

this section must provide the 

information requested not later than the 

15th business day (as defined in 

§ 4000.22 of this chapter) after receipt of 

the request. 

(2) Supplemental responses. If, at any 

time after receipt of a request under 

paragraph (a), the plan administrator or 

plan sponsor submits additional 

information to PBGC in connection with 

the plan termination, the plan 

administrator or plan sponsor must 

provide such additional information to 

any affected party that has made a 

request under paragraph (a), not later 

than the 15th business day (as defined 

in § 4000.22 of this chapter) after the 

information is submitted to PBGC. 

(3) Confidential information. 

(i) In responding to a request under 

paragraph (a) of this section, the plan 

administrator or plan sponsor shall not 

provide information that may, directly 

or indirectly, identify an individual 

participant or beneficiary. 

(ii) A plan administrator or plan 

sponsor that has received a request 

under paragraph (a) of this section may 

seek a court order under which 

confidential information described in 

section 552(b) of title 5, United States 

Code—

(A) Will be disclosed only to 

authorized representatives (within the 

meaning of section 4041(c)(2)(D)(iv) of 

ERISA) that agree, to ensure the 

confidentiality of such information, and 

(B) Will not be disclosed to other 

affected parties. 

§ 4042.5 Disclosure of administrative 

record by PBGC. 

(a) Request for Administrative Record. 

(1) In general. Beginning on the third 

business day (as defined in § 4000.22 of 

this chapter) after PBGC has issued a 

notice under section 4042 of ERISA that 

a plan should be terminated, an affected 

party with respect to the plan may make 

a request to PBGC for the administrative 

record of PBGC’s determination that the 

plan should be terminated. 

(2) Requirements. A request under 

paragraph (a) of this section must: 

(i) Be in writing; 

(ii) State the name of the plan and that 

the request is for the administrative 

record with respect to a notice issued by 

PBGC under section 4042 of ERISA that 

a plan should be terminated; 

(iii) State the name of the person 

making the request, the person’s 

relationship to the plan (e.g., plan 

participant), and that such relationship 

meets the definition of affected party 

under § 4001.2 of this chapter; and 

(iv) Be signed by the person making 

the request. 


sroberts on PROD1PC70 with PROPOSALS
68548 Federal Register / Vol. 72, No. 233 / Wednesday, December 5, 2007 / Proposed Rules 

(3) A request under paragraph (a) of 

this section must be sent to PBGC’s 

Disclosure Officer at the address 

provided on PBGC’s Web site. To 

expedite processing, the request should 

be prominently identified as an 

‘‘Administrative Record Request.’’

(b) PBGC Response to Request for 

Administrative Record. 

(1) Notification of plan administrator 

and plan sponsor. Upon receipt of a 

request under paragraph (a) of this 

section, PBGC will promptly notify the 

plan administrator and plan sponsor 

that it has received a request for the 

administrative record, and the date by 

which PBGC will provide the 

information to the affected party that 

made the request. 

(2) Confidential information. 

(i) In responding to a request under 

paragraph (a) of this section, PBGC will 

not disclose any portions of the 

administrative record that are 

prohibited from disclosure under the 

Privacy Act, 5 U.S.C. 552a. 

(ii) A plan administrator or plan 

sponsor that has received notification 

pursuant to paragraph (b)(1) of this 

section may seek a court order under 

which those portions of the 

administrative record that contain 

confidential information described in 

section 552(b) of title 5, United States 

Code—

(A) Will be disclosed only to 

authorized representatives (within the 

meaning of section 4041(c)(2)(D)(iv)) of 

ERISA) that agree to ensure the 

confidentiality of such information, and 

(B) Will not be disclosed to other 

affected parties. 

(iii) If, before the 15th business day 

(as defined in § 4000.22 of this chapter) 

after PBGC has received a request under 

paragraph (a), PBGC receives a court 

order as described in paragraph (b)(2)(ii) 

of this section, PBGC will disclose those 

portions of the administrative record 

that contain confidential information 

described in section 552(b) of title 5, 

United States Code, only as provided in 

the order. 

(3) Timing of response. PBGC will 

send the administrative record to the 

affected party that made the request not 

later than the 15th business day (as 

defined in § 4000.22 of this chapter) 

after it receives the request. 

(4) Form and manner. PBGC will 

provide the administrative record using 

measures (including electronic 

measures) reasonably calculated to 

ensure actual receipt of the material by 

the intended recipient. 

Issued in Washington, DC, this 30th day of 

November, 2007. 

Charles E.F. Millard, 

Interim Director, Pension Benefit Guaranty 

Corporation. 

[FR Doc. E7–23577 Filed 12–4–07; 8:45 am] 

BILLING CODE 7709–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2007–0105] 

RIN 1625–AA09 

Drawbridge Operation Regulations; 

Biscayne Bay, Atlantic Intracoastal 

Waterway, Miami River, and Miami 

Beach Channel, Miami-Dade County, 

FL 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Coast Guard proposes to 

change the regulations governing the 

operation of the east and west spans of 

the Venetian Causeway bridges across 

the Miami Beach Channel on the 

Atlantic Intracoastal Waterway, the 

Miami Avenue bridge and the Brickell 

Avenue bridge across the Miami River, 

Miami-Dade County. This proposed rule 

would allow these bridges to remain in 

the closed position for periods of time 

during the last Sunday in January 

during the running of an annual 

marathon. 

DATES: Comments and related material 

must reach the Coast Guard on or before 

January 4, 2008. 

ADDRESSES: You may submit comments 

identified by Coast Guard docket 

number USCG–2007–0105 to the Docket 

Management Facility at the U.S. 

Department of Transportation. To avoid 

duplication, please use only one of the 

following methods: 

(1) Online: http:// 

www.regulations.gov. 

(2) Mail: Docket Management Facility 

(M–30), U.S. Department of 

Transportation, West Building Ground 

Floor, Room W12–140, 1200 New Jersey 

Avenue SE., Washington, DC 20590–

0001. 

(3) Hand delivery: Room W12–140 on 

the Ground Floor of the West Building, 

1200 New Jersey Avenue SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. The telephone 

number is 202–366–9329. 

Fax: 202–493–2251. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this proposed 

rule, call Mr. Gwin Tate, Seventh Coast 

Guard District, Bridge Administration 

Branch, (305) 415–6747. If you have 

questions on viewing or submitting 

material to the docket, call Renee V. 

Wright, Program Manager, Docket 

Operations, telephone 202–366–9826. 

SUPPLEMENTARY INFORMATION: 

Public Participation and Request for 

Comments 

We encourage you to participate in 

this rulemaking by submitting 

comments and related materials. All 

comments received will be posted, 

without change, to http:// 

www.regulations.gov and will include 

any personal information you have 

provided. We have an agreement with 

the Department of Transportation (DOT) 

to use the Docket Management Facility. 

Please see DOT’s ‘‘Privacy Act’’

paragraph below. 

Submitting Comments 

If you submit a comment, please 

include the docket number for this 

rulemaking (USCG–2007–0105), 

indicate the specific section of this 

document to which each comment 

applies, and give the reason for each 

comment. We recommend that you 

include your name and a mailing 

address, an e-mail address, or a phone 

number in the body of your document 

so that we can contact you if we have 

questions regarding your submission. 

You may submit your comments and 

material by electronic means, mail, fax, 

or delivery to the Docket Management 

Facility at the address under ADDRESSES; 

but please submit your comments and 

material by only one means. If you 

submit them by mail or delivery, submit 

them in an unbound format, no larger 

than 81⁄2 by 11 inches, suitable for 

copying and electronic filing. If you 

submit them by mail and would like to 

know that they reached the Facility, 

please enclose a stamped, self-addressed 

postcard or envelope. We will consider 

all comments and material received 

during the comment period. We may 

change this proposed rule in view of 

them. 

Viewing Comments and Documents 

To view comments, as well as 

documents mentioned in this preamble 

as being available in the docket, go to 

http://www.regulations.gov at any time, 

click on ‘‘Search for Dockets,’’ and enter 

the docket number for this rulemaking 

(USCG–2007–0105) in the Docket ID 

box, and click enter. You may also visit 

the Docket Management Facility in 

Room W12–140 on the ground floor of 


sroberts on PROD1PC70 with PROPOSALS