[Federal Register Volume 74, Number 59 (Monday, March 30, 2009)]
[Proposed Rules]
[Pages 14100-14103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6973]


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PENSION BENEFIT GUARANTY CORPORATION

29 CFR Parts 4001, 4901 and 4902


Disclosure and Amendment of Records Pertaining to Individuals 
Under the Privacy Act

AGENCY: Pension Benefit Guaranty Corporation.

ACTION: Proposed rule.

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SUMMARY: The Pension Benefit Guaranty Corporation (PBGC) is proposing 
to amend its regulations implementing the Privacy Act of 1974, as 
amended, to exempt certain records that will be maintained in a system 
of records entitled ``PBGC-17, Office of Inspector General 
Investigative File System)--PBGC'' from the access, contest, and 
certain other provisions of the Privacy Act. The amendment would 
protect the information gathered to carry out the Office of Inspector 
General's law enforcement mission to investigate criminal, civil, and 
administrative matters.

DATES: Comments must be received by April 29, 2009.

ADDRESSES: Comments may be submitted by any of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the Web site instructions for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#106275773e737f7d7d757e646350607277733e777f66"><span class="__cf_email__" data-cfemail="cfbdaaa8e1aca0a2a2aaa1bbbc8fbfada8ace1a8a0b9">[email protected]</span></a>.
    <bullet> Fax: 202-326-4224.
    <bullet> 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 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 toll-free at 1-800-877-
8339 and ask to be connected to 202-326-4040.)

FOR FURTHER INFORMATION CONTACT: Margaret E. Drake, Attorney, Office of 
the General Counsel, Pension Benefit Guaranty Corporation, 1200 K 
Street, NW., Washington, DC 20005-4026; 202-326-4400 (extension 3228); 
or James Bloch, Program Analyst, Legislative & Regulatory Department; 
202-326-4223 (extension 3530). (For TTY/TDD users, call the Federal 
relay service toll-free at 1-800-877-8339 and ask to be connected to 
202-326-4400 (extension 3228) or 202-326-4223 (extension 3530).)

SUPPLEMENTARY INFORMATION: The PBGC Office of Inspector General (OIG) 
conducts criminal, civil and administrative investigations and compiles 
and maintains case files containing identifying information about 
potential subjects and sources. PBGC is proposing a new system of 
records subject to the Privacy Act of 1974, as amended, 5 U.S.C. 552a 
(``Privacy Act''), entitled ``PBGC-17, Office of Inspector General 
Investigative File System--PBGC.'' (PBGC's notice of a new system of 
records appears elsewhere in today's Federal Register.) The proposed 
new system of records will cover only the files of investigation that 
identify by name, or other personal identifier, individuals who are 
subjects or sources of information. The system of records is necessary 
to the investigative functions performed by the OIG under the authority 
of the Inspector General Act of 1978, as amended, 5 U.S.C. App. 3. The 
files may contain information about criminal, civil or administrative 
wrongdoing, or about fraud, waste or mismanagement, or other violations 
of law or regulation. This information could be the basis for referrals 
to appropriate prosecutorial authorities for consideration of criminal 
or civil prosecution or to PBGC management for administrative 
corrective action. The collection and maintenance of these types of 
records that are subject to this system are not new; however, in the 
past they have not been retrieved by a name or other personal 
identifier. OIG is implementing an electronic records management system 
from which records will be retrieved by name or other personal 
identifier.

Proposed Regulatory Changes

Exemptions

    PBGC is proposing to amend its regulations implementing the Privacy 
Act (29 CFR part 4902) to exempt, under 5 U.S.C. 552a(j) and (k), 
certain records that will be maintained in PBGC-17 from the access, 
contest, and certain other provisions of the Privacy Act. The amendment 
would protect the information gathered to carry out OIG's law 
enforcement mission to investigate criminal, civil, and administrative 
matters. The exemptions relate to records maintained by OIG pertaining 
to the enforcement of criminal laws (see 5 U.S.C. 552a(j)(2)) and 
investigatory material compiled for law enforcement generally (see 5 
U.S.C. 552a(k)(2)), and for determining individuals' eligibility or 
qualifications for Federal employment or Federal contracts (see 5 
U.S.C. 552a(k)(5)).

Other Changes

    Section 411 of the Pension Protection Act of 2006, Public Law 109-
280, amended section 4002(a) of ERISA to state that PBGC is to be 
administered by a Director appointed by the President, subject to 
Senate confirmation. Thus, PBGC proposes to replace all references

[[Page 14101]]

to the term ``Executive Director'' in part 4902 with the term 
``Director.'' PBGC also proposes to replace all references to the term 
``Deputy Executive Director'' in part 4902 with the term ``Deputy 
Director for Operations.''
    This proposed rule would update the definition of PBGC's Disclosure 
Officer, remove the definition of Disclosure Officer from regulation 
Sec.  4901.2 and Sec.  4902.2, and centralize the definition in Sec.  
4001.2. The proposed rule also would direct individuals to PBGC's Web 
site (http://www.pbgc.gov) for information on where an individual can 
address a request to learn whether PBGC maintains any system of records 
that contains a record pertaining to the individual and, if so, how to 
obtain access to such a record.

Compliance With Rulemaking Guidelines

    PBGC has determined that this action is not a ``significant 
regulatory action'' under the criteria set forth in Executive Order 
12866.
    PBGC certifies under section 605(b) of the Regulatory Flexibility 
Act that the proposed rule, if adopted, would not have a significant 
economic impact on a substantial number of small entities. The rule 
would only affect the maintenance and disclosure of information about 
individuals by PBGC under the Privacy Act and therefore would have no 
economic impact on entities of any size. Accordingly, sections 603 and 
604 of the Regulatory Flexibility Act do not apply.

List of Subjects

29 CFR Part 4001

    Pension insurance.

29 CFR Part 4901

    Freedom of information.

29 CFR Part 4902

    Privacy.

    For the reasons set forth above, PBGC is proposing to amend 29 CFR 
parts 4001, 4901, and 4902 as follows:

PART 4001--TERMINOLOGY

    1. The authority citation for Part 4001 continues to read as 
follows:

    Authority: 29 U.S.C. 1301, 1302(b)(3).

    2. Section 4001.2 is amended by adding a new definition in 
alphabetical order to read as follows:


Sec.  4001.2  Definitions.

* * * * *
    Disclosure officer means the official designated as disclosure 
officer in the Office of the General Counsel, PBGC.
* * * * *

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

    3. The authority citation for Part 4901 continues to read as 
follows:

    Authority: 5 U.S.C. 552, 29 U.S.C. 1302(b)(3).


Sec.  4901.2  [Amended]

    4. Section 4901.2 is amended by removing the definition of 
Disclosure officer.


Sec.  4901.11  [Amended]

    5. Section 4901.11 is amended by removing the words 
``Communications and Public Affairs Department'' and adding in their 
place ``Office of the General Counsel''; and removing the number 
``240'' and adding in its place the number ``11101''.

PART 4902--DISCLOSURE AND AMENDMENT OF RECORDS PERTAINING TO 
INDIVIDUALS UNDER THE PRIVACY ACT

    6. The authority citation for Part 4902 continues to read as 
follows:

    Authority: 5 U.S.C. 552a.

    7. Section 4902.1 is revised to read as follows:


Sec.  4902.1  Purpose and Scope.

    (a) Procedures. Sections 4902.3 through 4902.7 establish procedures 
under which:
    (1) An individual may--
    (i) Determine whether PBGC maintains any system of records that 
contains a record pertaining to the individual;
    (ii) Obtain access to the individual's record upon request;
    (iii) Make a request to amend the individual's record; and
    (iv) Appeal a denial of a request to amend the individual's record; 
and
    (2) PBGC will make an initial determination of a request to amend 
an individual's record.
    (b) Fees. Section 4902.8 prescribes the fees for making copies of 
an individual's record.
    (c) Privacy Act provisions. Section 4902.9 summarizes the Privacy 
Act (5 U.S.C. 552a) provisions for which PBGC claims an exemption for 
certain systems of records.
    (d) Exemptions. Sections 4902.10 through 4902.11 set forth those 
systems of records that are exempted from certain disclosure and other 
provisions of the Privacy Act, and the reasons for the exemptions.


Sec.  4902.2  [Amended]

    8. Section 4902.2 is amended by removing the definition of 
Disclosure officer.


Sec.  4902.3  [Amended]

    9. Section 4902.3(a) is amended by removing the words ``on any 
working day in the Communications and Public Affairs Department, PBGC, 
1200 K Street, NW., Suite 240, Washington, DC 20005-4026.'' and adding 
in their place ``on any working day. Current information on how to make 
a request, including the Disclosure Officer's mailing address and 
location, can be obtained on PBGC's Web site, http://www.pbgc.gov.''.


Sec.  4902.4  [Amended]

    10. Section 4902.4(a) is amended by removing the words 
``Communications and Public Affairs Department, Pension Benefit 
Guaranty Corporation, 1200 K Street NW., Washington, DC 20005-4026'' 
and adding in their place ``PBGC''; and by adding at the end of the 
paragraph the words ``Current information on where the records may be 
inspected and copied can be obtained on PBGC's Web site, http://www.pbgc.gov.''.


Sec.  4902.6  [Amended]

    11. Section 4902.6(a) is amended by removing the word 
``Executive''.


Sec.  4902.7  [Amended]

    12. In Sec.  4902.7, paragraph (a) is amended by removing the words 
``Deputy Executive Director'' and adding in their place ``Deputy 
Director for Operations'', and paragraph (b) is amended by removing the 
words ``the Executive Director'' and adding in their place ``the 
Director''; and by removing the words ``Deputy Executive Director'' 
wherever they appear, and adding in their place ``Deputy Director for 
Operations''.
    13. Sections 4902.9 and 4902.10 are redesignated as Sec. Sec.  
4902.10 and 4902.12, respectively, and the newly redesignated Sec.  
4902.10 is revised to read as follows:


Sec.  4902.10  Specific exemption: Personnel Security Investigation 
Records

    (a) Exemption. Under the authority granted by 5 U.S.C. 552a(k)(5), 
the PBGC hereby exempts the system of records entitled ``PBGC-12, 
Personnel Security Investigation Records--PBGC'' from the provisions of 
5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f), to 
the extent that the disclosure of such material would reveal the 
identity of a source who furnished information to PBGC under an express 
promise of confidentiality or, before September 27,

[[Page 14102]]

1975, under an implied promise of confidentiality.
    (b) Reasons for Exemption. The reasons for asserting this exemption 
are to insure the gaining of information essential to determining 
suitability and fitness for PBGC employment or for work for the PBGC as 
a contractor or as an employee of a contractor, access to information, 
and security clearances, to insure that full and candid disclosures are 
obtained in making such determinations, to prevent subjects of such 
determinations from thwarting the completion of such determinations, 
and to avoid revealing the identities of persons who furnish 
information to the PBGC in confidence.''
    14. New Sec. Sec.  4902.9 and 4902.11 are added to read as follows:


Sec.  4902.9  Privacy Act provisions for which PBGC claims an 
exemption.

    Subsections 552a(j) and (k) of title 5, U.S.C., authorize the PBGC 
to exempt systems of records meeting certain criteria from various 
other subsections of section 552a. This section contains a summary of 
the Privacy Act provisions for which PBGC claims an exemption for the 
systems of records discussed in this part pursuant to, and to the 
extent permitted by, subsections 552a(j) and (k):
    (a) Subsection (c)(3) of 5 U.S.C. 552a requires an agency to make 
available to the individual named in the records an accounting of each 
disclosure of records.
    (b) Subsection (c)(4) of 5 U.S.C. 552a requires an agency to inform 
any person or other agency to which a record has been disclosed of any 
correction or notation of dispute the agency has made to the record in 
accordance with subsection (d) of the Privacy Act.
    (c) Subsections (d)(1) through (4) of 5 U.S.C. 552a require an 
agency to permit an individual to gain access to records about the 
individual, to request amendment of such records, to request a review 
of an agency decision not to amend such records, and to provide a 
statement of disagreement about a disputed record to be filed and 
disclosed with the disputed record.
    (d) Subsection (e)(1) of 5 U.S.C. 552a requires an agency to 
maintain in its records only such information about an individual that 
is relevant and necessary to accomplish a purpose required by statute 
or executive order of the President.
    (e) Subsection (e)(2) of 5 U.S.C. 552a requires an agency to 
collect information to the greatest extent practicable directly from 
the subject individual when the information may result in adverse 
determinations about an individual's rights, benefits, and privileges 
under federal programs.
    (f) Subsection (e)(3) of 5 U.S.C. 552a requires an agency to inform 
each person whom it asks to supply information of the authority under 
which the information is sought, whether disclosure is mandatory or 
voluntary, the principal purpose(s) for which the information will be 
used, the routine uses that may be made of the information, and the 
effects of not providing the information.
    (g) Subsection (e)(4)(G) and (H) of 5 U.S.C. 552a requires an 
agency to publish a Federal Register notice of its procedures whereby 
an individual can be notified upon request whether the system of 
records contains information about the individual, how to gain access 
to any record about the individual contained in the system, and how to 
contest its content.
    (h) Subsection (e)(5) of 5 U.S.C. 552a requires an agency to 
maintain its records with such accuracy, relevance, timeliness, and 
completeness as is reasonably necessary to ensure fairness to the 
individual in making any determination about the individual.
    (i) Subsection (e)(8) of 5 U.S.C. 552a requires an agency to make 
reasonable efforts to serve notice on an individual when any record on 
such individual is made available to any person under compulsory legal 
process when such process becomes a matter of public record.
    (j) Subsection (f) of 5 U.S.C. 552a requires an agency to establish 
procedures whereby an individual can be notified upon request if any 
system of records named by the individual contains a record pertaining 
to the individual, obtain access to the record, and request amendment.
    (k) Subsection (g) of 5 U.S.C. 552a provides for civil remedies if 
an agency fails to comply with the access and amendment provisions of 
subsections (d)(1) and (d)(3), and with other provisions of the Privacy 
Act, or any rule promulgated thereunder, in such a way as to have an 
adverse effect on an individual.


Sec.  4902.11  Specific exemptions: Office of Inspector General 
Investigative File System.

    (a) Criminal Law Enforcement--(1) Exemption. Under the authority 
granted by 5 U.S.C. 552a(j)(2), the PBGC hereby exempts the system of 
records entitled ``PBGC-17, Office of Inspector General Investigative 
File System--PBGC'' from the provisions of 5 U.S.C. 552a(c)(3), (c)(4), 
(d)(1) through (4), (e)(1) through (3), (e)(4)(G) and (H), (e)(5), 
(e)(8), (f), and (g) because the system contains information pertaining 
to the enforcement of criminal laws.
    (2) Reasons for exemption. The reasons for asserting this exemption 
are:
    (i) Disclosure to the individual named in the record pursuant to 
subsections (c)(3), (c)(4), or (d)(1) through (4) could seriously 
impede or compromise the investigation by alerting the target(s), 
subjecting a potential witness or witnesses to intimidation or improper 
influence, and leading to destruction of evidence.
    (ii) Application of subsection (e)(1) is impractical because the 
relevance of specific information might be established only after 
considerable analysis and as the investigation progresses. Effective 
law enforcement requires the Office of Inspector General to keep 
information that may not be relevant to a specific Office of Inspector 
General investigation, but which may provide leads for appropriate law 
enforcement and to establish patterns of activity that might relate to 
the jurisdiction of the Office of Inspector General and/or other 
agencies.
    (iii) Application of subsection (e)(2) would be counterproductive 
to performance of a criminal investigation because it would alert the 
individual to the existence of an investigation.
    (iv) Application of subsection (e)(3) could discourage the free 
flow of information in a criminal law enforcement inquiry.
    (v) The requirements of subsections (e)(4)(G) and (H), and (f) do 
not apply because this system is exempt from the provisions of 
subsection (d). Nevertheless, PBGC has published notice of its 
notification, access, and contest procedures because access is 
appropriate in some cases.
    (vi) Although the Office of Inspector General endeavors to maintain 
accurate records, application of subsection (e)(5) is impractical 
because maintaining only those records that are accurate, relevant, 
timely, and complete and that assure fairness in determination is 
contrary to established investigative techniques. Information that may 
initially appear inaccurate, irrelevant, untimely, or incomplete may, 
when collated and analyzed with other available information, become 
more pertinent as an investigation progresses.
    (vii) Application of subsection (e)(8) could prematurely reveal an 
ongoing criminal investigation to the subject of the investigation.
    (viii) The provisions of subsection (g) do not apply to this system 
if an exemption otherwise applies.
    (b) Other Law Enforcement--(1) Exemption. Under the authority 
granted by 5 U.S.C. 552a(k)(2), the PBGC hereby

[[Page 14103]]

exempts the system of records entitled ``PBGC-17, Office of Inspector 
General Investigative File System--PBGC'' from the provisions of 5 
U.S.C. 552a(c)(3), (d)(1) through (4), (e)(1), (e)(4)(G) and (H), and 
(f) for the same reasons as stated in paragraph (a)(2) of this section, 
that is, because the system contains investigatory material compiled 
for law enforcement purposes other than material within the scope of 
subsection 552a(j)(2).
    (2) Reasons for exemption. The reasons for asserting this exemption 
are because the disclosure and other requirements of the Privacy Act 
could substantially compromise the efficacy and integrity of the Office 
of Inspector General operations. Disclosure could invade the privacy of 
other individuals and disclose their identity when they were expressly 
promised confidentiality. Disclosure could interfere with the integrity 
of information which would otherwise be subject to privileges, see, 
e.g., 5 U.S.C. 552(b)(5), and which could interfere with other 
important law enforcement concerns, see, e.g., 5 U.S.C. 552(b)(7).
    (c) Federal Civilian or Contract Employment--(1) Exemption. Under 
the authority granted by 5 U.S.C. 552a(k)(5), the PBGC hereby exempts 
the system of records entitled ``PBGC-17, Office of Inspector General 
Investigative File System--PBGC'' from the provisions of 5 U.S.C. 
552a(c)(3), (d)(1) through (4), (e)(1), (e)(4)(G) and (H), and (f) 
because the system contains investigatory material compiled for the 
purpose of determining eligibility or qualifications for federal 
civilian or contract employment.
    (2) Reason for exemption. The reason for asserting this exemption 
is to protect from disclosure the identity of a confidential source 
when an express promise of confidentiality has been given to obtain 
information from sources who would otherwise be unwilling to provide 
necessary information.

    Issued in Washington, DC, this 23rd day of March, 2009.
Vincent K. Snowbarger,
Acting Director, Pension Benefit Guaranty Corporation.
[FR Doc. E9-6973 Filed 3-27-09; 8:45 am]
BILLING CODE 7709-01-P


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