[BenefitsLink.com editor's note: click here for typeset version that appeared in the Federal Register.]

[Federal Register: November 18, 2008 (Volume 73, Number 223)]
[Rules and Regulations]
[Page 68333-68339]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18no08-12]

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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.

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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\
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    \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.
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    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]

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