[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:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the Web site instructions for submitting comments.
E-mail: [email protected].
Fax: 202-326-4224.
Mail or Hand Delivery: Legislative and Regulatory
Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW.,
Washington, DC 20005-4026.
Comments received, including personal information provided, will be
posted to http://www.pbgc.gov. Copies of comments may also be obtained
by writing to Disclosure Division, Office of 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