Disclosure and Amendment of Records Pertaining to Individuals Under the Privacy Act, 14100-14103 [E9-6973]
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Federal Register / Vol. 74, No. 59 / Monday, March 30, 2009 / Proposed Rules
proposed to amend the U.S. Customs
and Border Protection (CBP) Regulations
to exclude from the dutiable value of
repairs, alterations, or processing
performed abroad on articles exported
from the United States and returned
under subheading 9802.00.40,
9802.00.50, or 9802.00.60, Harmonized
Tariff Schedule of the United States
(HTSUS), the value of U.S.-origin parts
used in the foreign repairs, alterations,
or processing. The notice is being
withdrawn to permit further
consideration of the relevant issues
involved in the proposed rulemaking.
DATES: The notice of proposed
rulemaking is withdrawn on March 30,
2009.
FOR FURTHER INFORMATION CONTACT:
Monika Brenner, Regulations and
Rulings, Office of International Trade,
202–325–0038.
SUPPLEMENTARY INFORMATION:
Background
On March 13, 2009, CBP published in
the Federal Register (74 FR 10849) a
document that proposed to amend
§§ 10.8(d) and 10.9(d) of the CBP
regulations (19 CFR 10.8(d) and 10.9(d))
to exclude from the dutiable value of
repairs, alterations, or processing
performed abroad on articles exported
and returned to the United States under
subheading 9802.00.40, 9802.00.50, or
9802.00.60, HTSUS, the value of U.S.origin parts used in the foreign repairs,
alterations, or processing.
Withdrawal of Notice of Proposed
Rulemaking
CBP is withdrawing the notice of
proposed rulemaking published in the
Federal Register on March 13, 2009, so
that relevant issues involved in the
proposed rulemaking may be further
considered.
Jayson P. Ahern,
Acting Commissioner, Customs and Border
Protection.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. E9–7154 Filed 3–27–09; 8:45 am]
BILLING CODE 9111–14–P
PENSION BENEFIT GUARANTY
CORPORATION
29 CFR Parts 4001, 4901 and 4902
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:
• Federal eRulemaking Portal: https://
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
https://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 tollfree 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).)
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
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SUPPLEMENTARY INFORMATION:
Disclosure and Amendment of
Records Pertaining to Individuals
Under the Privacy Act
AGENCY: Pension Benefit Guaranty
Corporation.
ACTION: Proposed rule.
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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
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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 § 4901.2 and
§ 4902.2, and centralize the definition in
§ 4001.2. The proposed rule also would
direct individuals to PBGC’s Web site
(https://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).
rwilkins on PROD1PC63 with PROPOSALS
2. Section 4001.2 is amended by
adding a new definition in alphabetical
order to read as follows:
§ 4001.2
Definitions.
*
*
*
*
*
Disclosure officer means the official
designated as disclosure officer in the
Office of the General Counsel, PBGC.
*
*
*
*
*
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PART 4901—EXAMINATION AND
COPYING OF PENSION BENEFIT
GUARANTY CORPORATION
RECORDS
§ 4902.2
3. The authority citation for Part 4901
continues to read as follows:
§ 4902.3
Authority: 5 U.S.C. 552, 29 U.S.C.
1302(b)(3).
§ 4901.2
[Amended]
4. Section 4901.2 is amended by
removing the definition of Disclosure
officer.
§ 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:
§ 4902.1
[Amended]
8. Section 4902.2 is amended by
removing the definition of Disclosure
officer.
[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, https://
www.pbgc.gov.’’.
§ 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, https://
www.pbgc.gov.’’.
§ 4902.6
[Amended]
11. Section 4902.6(a) is amended by
removing the word ‘‘Executive’’.
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.
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§ 4902.7
[Amended]
12. In § 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 §§ 4902.10 and 4902.12,
respectively, and the newly
redesignated § 4902.10 is revised to read
as follows:
§ 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,
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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 §§ 4902.9 and 4902.11 are
added to read as follows:
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§ 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
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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.
§ 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
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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
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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.
rwilkins on PROD1PC63 with PROPOSALS
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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FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
[DA 09–650; MB Docket No. 08–101; RM–
11438]
Television Broadcasting Services; Ann
Arbor, MI
AGENCY: Federal Communications
Commission.
ACTION: Dismissal.
SUMMARY: The Commission dismisses
the pending rulemaking petition filed by
Paxson Communications License
Company, LLC (‘‘Paxson’’), permittee of
WPXD–DT, post-transition digital
television channel 31, which proposes
to substitute digital television channel
19 for post-transition digital television
channel 31 at Ann Arbor, Michigan.
Paxson’s proposed channel substitution
requires coordination and concurrence
with the Canadian government because
the proposed facility is located within
the Canadian coordination zone. The
Canadian government has indicated that
Paxson’s proposed channel substitution
is not acceptable. Therefore, the
Commission cannot approve Paxson’s
rulemaking petition.
FOR FURTHER INFORMATION CONTACT:
Adrienne Y. Denysyk, Media Bureau,
(202) 418–1600.
SUPPLEMENTARY INFORMATION: This is a
synopsis of the Commission’s Order,
MB Docket No. 08–101, adopted March
18, 2009, and released March 20, 2009.
The full text of this document is
available for public inspection and
copying during normal business hours
in the FCC’s Reference Information
Center at Portals II, CY–A257, 445 12th
Street, SW., Washington, DC 20554.
This document will also be available via
ECFS (https://www.fcc.gov/cgb/ecfs/).
(Documents will be available
electronically in ASCII, Word 97, and/
or Adobe Acrobat.) This document may
be purchased from the Commission’s
duplicating contractor, Best Copy and
Printing, Inc., 445 12th Street, SW.,
Room CY–B402, Washington, DC 20554,
telephone 1–800–478–3160 or via e-mail
https://www.BCPIWEB.com. To request
this document in accessible formats
(computer diskettes, large print, audio
recording, and Braille), send an e-mail
to fcc504@fcc.gov or call the
Commission’s Consumer and
Governmental Affairs Bureau at (202)
418–0530 (voice), (202) 418–0432
(TTY). This document does not contain
information collection requirements
subject to the Paperwork Reduction Act
of 1995, Public Law 104–13. In addition,
therefore, it does not contain any
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14103
information collection burden ‘‘for
small business concerns with fewer than
25 employees,’’ pursuant to the Small
Business Paperwork Relief Act of 2002,
Public Law 107–198, see 44 U.S.C.
3506(c)(4). Provisions of the Regulatory
Flexibility Act of 1980 do not apply to
this proceeding.
This document is not subject to the
Congressional Review Act. (The
Commission, is, therefore, not required
to submit a copy of this Order to the
Government Accountability Office,
pursuant to the Congressional Review
Act, see 5 U.S.C. 801(a)(1)(A) since this
proposed rule is dismissed, herein.)
Federal Communications Commission.
Clay C. Pendarvis,
Associate Chief, Video Division, Media
Bureau.
[FR Doc. E9–7032 Filed 3–27–09; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
[DA 09–638; MB Docket No. 09–33; RM–
11521]
Television Broadcasting Services;
Derby, KS
AGENCY: Federal Communications
Commission.
ACTION: Proposed rule.
SUMMARY: The Commission requests
comments on a channel substitution
proposed by Entravision Holdings, LLC
(‘‘Entravision’’), the permittee of KDCU–
DT, DTV channel 46, Derby, Kansas.
Entravision requests the substitution of
DTV channel 31 for post-transition DTV
channel 46 at Derby.
DATES: Comments must be filed on or
before April 14, 2009, and reply
comments on or before April 24, 2009.
ADDRESSES: Federal Communications
Commission, Office of the Secretary,
445 12th Street, SW., Washington, DC
20554. In addition to filing comments
with the FCC, interested parties should
serve counsel for petitioner as follows:
Barry A. Friedman, Esq., Thompson
Hine LLP, 1920 N Street, NW., Suite
800, Washington, DC 20036.
FOR FURTHER INFORMATION CONTACT:
Adrienne Y. Denysyk,
adrienne.denysyk@fcc.gov, Media
Bureau, (202) 418–1600.
SUPPLEMENTARY INFORMATION: This is a
synopsis of the Commission’s Notice of
Proposed Rule Making, MB Docket No.
09–33, adopted March 17, 2009, and
released March 19, 2009. The full text
of this document is available for public
E:\FR\FM\30MRP1.SGM
30MRP1
]]>Agencies
[Federal Register Volume 74, Number 59 (Monday, March 30, 2009)]
[Proposed Rules]
[Pages 14100-14103]
From the Federal Register Online via the Government Printing 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:
Federal eRulemaking Portal: https://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 https://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 (https://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, https://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, https://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
