Disclosure of Termination Information, 68333-68339 [E8-27350]

Agencies

• Pension Benefit Guaranty Corporation

[Federal Register Volume 73, Number 223 (Tuesday, November 18, 2008)]
[Rules and Regulations]
[Pages 68333-68339]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-27350]


=======================================================================
-----------------------------------------------------------------------

PENSION BENEFIT GUARANTY CORPORATION

29 CFR Parts 4041 and 4042

RIN 1212-AB14


Disclosure of Termination Information

AGENCY: Pension Benefit Guaranty Corporation.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This is a final 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 PBGC-initiated termination. 
The disclosures must be made to an affected party upon request.

DATES: Effective December 18, 2008. For information about applicability 
of the amendments made by this rule, see Applicability in the 
SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT: Kenneth Cooper, Assistant 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 
govern the termination of single-employer 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 single-employer 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 Sec.  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

[[Page 68334]]

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.
    On December 5, 2007 (at 72 FR 68542), PBGC published a proposed 
rule to amend sections 4041 and 4042 of ERISA to implement the 
provisions of section 506 of PPA 2006. PBGC received two comments on 
the proposed rule, one from a labor union and one from a business 
federation.
    One commenter suggested that the final rule explicitly recognize 
that the new disclosure provisions in sections 4041(c)(2)(D) and 
4042(c)(3) of ERISA do not alter any disclosure obligations under other 
federal statutes and rules. The provisions added by section 506 of PPA 
2006 apply only to the disclosure of information in connection with a 
distress termination or PBGC-initiated termination under Title IV of 
ERISA and are independent of disclosure requirements in other statutes. 
However, PBGC does not believe it is necessary to revise the final 
regulation in response to this comment.
    Both commenters commented on the confidentiality provisions in the 
final rule. One commenter suggested that the final rule provide some 
guidance regarding reasonable fees that may be charged by a plan 
administrator. These points are discussed below with the topics to 
which they relate.\1\
---------------------------------------------------------------------------

    \1\ One commenter suggested that the final regulation allow for 
an exception to the assumed receipt date of three business days 
after PBGC issues a notice that a plan should be terminated. The 
commenter suggested that a plan administrator or plan sponsor be 
allowed to use the actual receipt date if it can prove that actual 
receipt occurred after three business days. The commenter 
incorrectly stated that the assumed receipt date starts the clock 
for the fifteen business days a plan administrator has to respond to 
a request from an affected party for information about the 
termination. However, the assumed receipt date is the earliest date 
on which an affected party may make a request for information. If a 
plan administrator or plan sponsor receives a request from an 
affected party on or after that date, it then has fifteen business 
days to provide the information.
---------------------------------------------------------------------------

    The final regulation is unchanged from the proposed regulation, 
except that the final regulation states explicitly, with reference to 
the applicable statutory provisions, that plan administrators in 
distress and PBGC-initiated terminations, and plan sponsors in PBGC-
initiated terminations, may charge a reasonable fee for any information 
provided in other than electronic form.

Final Regulation

General Provisions

    Section 506 of PPA 2006 generally requires that information be 
provided to an affected party upon request. The final 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 Sec.  
4000.22 of 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 Sec.  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 
Sec.  4041.3.
    With respect to a PBGC-initiated termination, the final regulation 
requires that a plan administrator or plan sponsor respond to a request 
under section 4042(c)(3)(D) of ERISA in accordance with part 4000, 
subpart B. The final 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) of ERISA 
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. As noted above, a commenter suggested 
that PBGC provide, at minimum, some direction to plan administrators 
and plan sponsors with regard to what constitutes a reasonable fee. The 
commenter suggested that PBGC look to FOIA and to section 104(b)(4) of 
ERISA.
    Unlike FOIA, which states that ``each agency shall promulgate 
regulations * * * specifying the schedule of fees applicable to the 
processing of requests * * *'' (5 U.S.C. Sec.  552(a)(4)(A)(i)), there 
is no directive to establish fee schedules in sections 
4041(c)(2)(D)(iii) and 4042(c)(3)(D) of ERISA. Moreover, while these 
sections state that PBGC may prescribe the form and manner of 
disclosure, they do not contain language similar to that in section 
104(b)(4) of ERISA with respect to prescribing the maximum amount of a 
reasonable fee. For these reasons, PBGC has decided not to accommodate 
the commenter's suggestion.
    PBGC has added references to sections 4041(c)(2)(D)(iii)(II) and 
4042(c)(3)(D)(ii) of ERISA to the final regulation.

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

[[Page 68335]]

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 Sec.  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 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 final 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 final regulation requires the plan 
administrator to provide the information not later than 15 business 
days after PBGC Form 600 is filed. In addition, the final 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 
PBGC-initiated termination. With regard to the plan sponsor and plan 
administrator, section 4042(c)(3)(A)(i) 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.

    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 final 
regulation adopts an assumed receipt date of three 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 final 
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 final 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.

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 PBGC-initiated termination, of information ``that may 
directly or indirectly be associated with, or otherwise identify, an 
individual participant or beneficiary.'' The final 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

[[Page 68336]]

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 final 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.
    One commenter suggested that the final rule recognize that a 
confidentiality agreement voluntarily entered into between the 
appropriate parties may be substituted for a court order. PBGC is not 
adopting this suggestion. With respect to requests to a plan 
administrator or plan sponsor, nothing in the final rule precludes a 
plan administrator or plan sponsor from entering into a confidentiality 
agreement with an affected party in lieu of obtaining a court order.

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 PBGC-initiated 
termination. Accordingly, the final regulation states that PBGC shall 
not disclose any portions of the administrative record that it is 
prohibited from disclosing 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 final 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 final 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 final 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 only as provided in the order.
    One commenter expressed concern that the confidentiality provisions 
do not extend to the administrative record provided by PBGC and that 
requiring a court order seems to be an unnecessary step. However, as 
explained above, the confidentiality provisions do extend to the 
administrative record, and the court order is required under the PPA 
2006 amendment.
    As noted above under Disclosure of Confidential Information by Plan 
Administrator and Plan Sponsor, PBGC is not adopting a commenter's 
suggestion that the final rule recognize that a confidentiality 
agreement voluntarily entered into between the appropriate parties may 
be substituted for a court order. With respect to disclosure of an 
administrative record by PBGC, PBGC cannot rely on a confidentiality 
agreement between private parties to determine its statutory 
obligations to persons who are not parties to the agreement.

Applicability

    The amendments in this final regulation are applicable to 
terminations initiated on or after August 17, 2006, but only to 
requests for information made on or after December 18, 2008.

Compliance With Rulemaking Guidelines

E.O. 12866

    PBGC has determined, in consultation with the Office of Management 
and Budget, that this final rule is not a

[[Page 68337]]

``significant regulatory action'' under Executive Order 12866. PBGC 
identifies the following specific problems that warrant this agency 
action:
     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 final regulation 
will 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 final rule implements statutory changes made by Congress. It 
prescribes the form and manner for providing requested information and 
clarifies the type of information that must be provided and the 
timeframes for providing such information. It also provides 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

    The information collection requirements under this rule have been 
approved by the Office of Management and Budget under the Paperwork 
Reduction Act (OMB control number 1212-0065; expires October 31, 2011). 
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. This information is needed in order to 
provide sufficient information to affected parties about the 
termination or possible termination of their pension plans.

List of Subjects

29 CFR Part 4041

    Disclosure, Pensions, Termination of pension plans.

29 CFR Part 4042

    Disclosure, Pensions, Termination of pension plans.


0
For the reasons given above, 29 CFR chapter XL is amended as follows:

PART 4041--TERMINATION OF SINGLE-EMPLOYER PLANS

0
1. The authority citation for part 4041 continues to read as follows:

    Authority: 29 U.S.C. 1302(b)(3), 1341, 1344, 1350.


0
2. New Sec.  4041.51 is added to read as follows:


Sec.  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 Sec.  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 Sec. Sec.  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 Sec.  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 response to a 
request under paragraph (a) of this section includes PBGC Form 600, and 
any information submitted to PBGC pursuant to section 4041(c)(2) of 
ERISA and Sec.  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 Sec.  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 Sec.  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 Sec.  4041.45, the plan administrator must, not later than 
the 15th business day (as defined in Sec.  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

[[Page 68338]]

ERISA) that agree to ensure the confidentiality of such information, 
and,
    (B) Will not be disclosed to other affected parties.
    (6) Reasonable fees. Under section 4041(c)(2)(D)(iii)(II) of ERISA, 
a plan administrator may charge a reasonable fee for any information 
provided under this section in other than electronic form.

0
3. New part 4042 is added 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


Sec.  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.


Sec.  4042.2  Definitions.

    The following terms used in this part are defined in Sec.  4001.2 
of this chapter: Affected party, ERISA, PBGC, and plan administrator.


Sec.  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


Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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.
    (4) Reasonable fees. Under section 4042(c)(3)(D)(ii) of ERISA, a 
plan administrator or plan sponsor may charge a reasonable fee for any 
information provided under this section in other than electronic form.


Sec.  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 Sec.  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 Sec.  4001.2 
of this chapter; and
    (iv) Be signed by the person making the request.
    (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

[[Page 68339]]

    (B) Will not be disclosed to other affected parties.
    (iii) If, before the 15th business day (as defined in Sec.  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 Sec.  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 13 day of November, 2008.
Charles E.F. Millard,
Director, Pension Benefit Guaranty Corporation.
    Issued on the date set forth above pursuant to a resolution of 
the Board of Directors authorizing publication of this final rule.
Judith R. Starr,
Secretary, Board of Directors, Pension Benefit Guaranty Corporation.
[FR Doc. E8-27350 Filed 11-17-08; 8:45 am]
BILLING CODE 7709-01-P