PART 4901—DISCLOSURE AND PUBLIC INSPECTION OF PENSION BENEFIT GUARANTY CORPORATION RECORDS Authority: 5 U.S.C. 552, 29 U.S.C. 1302(b)(3), E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235. Source: 61 FR 34123, July 1, 1996, unless otherwise noted. Subpart A—General § 4901.1 Purpose and scope. This part contains PBGC's general rules implementing the Freedom of Information Act. This part sets forth generally the categories of records accessible to the public, types of records subject to prohibitions or restrictions on disclosure, and procedures whereby members of the public may access and inspect PBGC records. [87 FR 43994, July 25, 2022] § 4901.2 Definitions. In addition to terminology in part 4001 of this chapter, as used in this part— Agency, person, rule, rulemaking, order, adjudication FOIA Record Working day [61 FR 34123, July 1, 1996, as amended at 74 FR 27081, June 8, 2009; 87 FR 43994, July 25, 2022] § 4901.3 Electronic reading room. PBGC will maintain an electronic reading room on its website, www.pbgc.gov, [82 FR 26991, June 13, 2017; as amended at 87 FR 43994, July 25, 2022] § 4901.4 Information maintained in electronic reading room. PBGC will make available for public inspection in an electronic format without formal request— (a) Information published in the Federal Register. Federal Register Federal Register (b) Information in PBGC publications. (c) Rulemaking proceedings. (d) Other agency proceedings, policies, staff manuals and instructions, and records. (1) Adjudication proceedings. (2) Policy statements and interpretations. Federal Register (3) Staff manuals and instructions. (4) Frequently requested records. (5) Other records. (e) Indexes to certain records. [61 FR 34123, July 1, 1996, as amended at 82 FR 26991, June 13, 2017; 87 FR 43994, July 25, 2022] § 4901.5 Disclosure of other information. (a) In general. (b) Discretionary disclosure. [87 FR 43995, July 25, 2022] § 4901.6 Filing rules; computation of time. (a) Place, method, and date of filing. (2) For rules about permissible methods of filing with PBGC under this part, see § 4000.3 of this chapter. (3) For rules about the date that a submission under this part was filed with PBGC, see subpart C of part 4000 of this chapter. (b) Computation of time. [87 FR 43995, July 25, 2022] Subpart B—Procedure for Formal Requests § 4901.11 Submission of requests for access to records. (a) In general. www.pbgc.gov. (b) Assistance with requests. www.pbgc.gov. [87 FR 43995, July 25, 2022] § 4901.12 Description of information requested. (a) In general. (b) Deficient descriptions. (2) A requester who is attempting to modify or reformulate a disclosure request may discuss the request with a FOIA Public Liaison, who is available to assist the requester in reasonably describing the records sought. If the requester fails to reasonably describe the records sought, PBGC's response to the request may be delayed or denied. (3) Any amended disclosure request must meet the requirements for a request under paragraph (a) of this section. (c) Requests for categories of records. [61 FR 34123, July 1, 1996, as amended at 87 FR 43995, July 25, 2022] § 4901.13 Receipt by agency of request. The Disclosure Officer will note the date and time of receipt on each disclosure request for access to records. A disclosure request is deemed received and the period within which PBGC acts on the request, as set forth in § 4901.14, begins on the next working day following receipt, except that a disclosure request is deemed received only if and when PBGC receives all of the following: (a) A sufficient description under § 4901.12; (b) Payment or assurance of payment if required under § 4901.33(b); and (c) The requester's consent to pay substantial search, review, and/or duplication charges under subpart D of this part if PBGC determines that such charges may be substantial and so notifies the requester. Consent must be in the form of a statement that charges under subpart D of this part will be acceptable either in any amount or up to a specified amount. To avoid possible delay, a requester may include such a statement in an initial disclosure request. [87 FR 43995, July 25, 2022] § 4901.14 Action on request. (a) Time for action. (b) Request granted. (c) Request denied. (d) Records not located. (e) Information for requester. [87 FR 43995, July 25, 2022] § 4901.15 Appeals from denial of requests. (a) Submittal of appeals. www.pbgc.gov. (b) Receipt and consideration of appeal. (1) The General Counsel will determine de novo whether the denial of disclosure was in accordance with FOIA and this part. (2) Unless otherwise ordered by the court, the General Counsel may act on an appeal notwithstanding the pendency of an action for judicial relief in the same matter and, if no appeal has been filed, may treat the pending action as the filing of an appeal. (c) Decision on appeal. (1) Grant the appeal and so advise the requester in writing, in which case the records with respect to which the appeal is granted will promptly be made available to the requester; or (2) Deny the appeal and so advise the requester in writing with a brief statement of the reasons for the denial, including a reference to the specific exemption(s) authorizing the denial, an explanation of how each such exemption applies to the matter withheld, and notice of the provisions for judicial review in section 552(a)(4) of FOIA. The General Counsel's decision will be the final action of PBGC with respect to the request. (d) Records of appeals. [61 FR 34123, July 1, 1996, as amended at 68 FR 61358, Oct. 28, 2003; 82 FR 26992, June 13, 2017; 87 FR 43996, July 25, 2022] § 4901.16 Extensions of time. In unusual circumstances (as described in section 552(a)(6)(B) of FOIA), the time to respond to a disclosure request under § 4901.14(a) or an appeal under § 4901.15(b) may be extended as reasonably necessary to process the request or appeal. The Disclosure Officer will notify the requester in writing within the original time period of the unusual circumstances and the date when a response is expected to be sent. When the extension for a disclosure request exceeds 10 working days, the notice will provide the requester with an opportunity to modify the disclosure request or arrange an alternative time period for processing the original or modified request. This notice will also alert the requester of the availability of a PBGC FOIA Public Liaison for assistance and the Office of Government Information Services for dispute resolution services. The maximum extension for responding to an appeal is 10 working days minus the amount of any extension on the request to which the appeal relates. [87 FR 43996, July 25, 2022] § 4901.17 Expedited action on requests and appeals. (a) In general. (1) The disclosure request or appeal involves circumstances in which the lack of expedited action could reasonably be expected to pose an imminent threat to the life or physical safety of an individual or the loss of an individual's substantial due process rights. (2) The requester is primarily engaged in disseminating information and the disclosure request or appeal is urgently needed to inform the public about an actual or alleged Federal Government activity. (b) Timing and method of request. www.pbgc.gov. (c) Action on request. (2) Request granted. (3) Request denied. [87 FR 43996, July 25, 2022] § 4901.18 Exhaustion of administrative remedies. If the Disclosure Officer fails to make a determination to grant or deny access to requested records, or the General Counsel does not make a decision on appeal from a denial of access to PBGC records, within the time prescribed (including any extension) for making such determination or decision, the requester's administrative remedies will be deemed exhausted and the requester may apply for judicial relief under FOIA. However, since a court may allow PBGC additional time to act as provided in FOIA, processing of the disclosure request or appeal will continue and PBGC will so advise the requester. [87 FR 43997, July 25, 2022] Subpart C—Restrictions on Disclosure § 4901.21 Restrictions in general. (a) Records not disclosable. (b) Records disclosure of which may be refused. (1) Section 552(b)(2) of FOIA, dealing in general with internal agency personnel rules and practices; (2) Section 552(b)(4) of FOIA, dealing in general with trade secrets and commercial and financial information; (3) Section 552(b)(5) of FOIA, dealing in general with inter-agency and intra-agency memoranda and letters; (4) Section 552(b)(6) of FOIA, dealing in general with personnel, medical, and similar files; (5) Section 552(b)(7) of FOIA, dealing in general with records or information compiled for law enforcement purposes; (6) Section 552(b)(8) of FOIA, dealing in general with reports on financial institutions; or (7) Section 552(b)(9) of FOIA, dealing in general with information about wells. [87 FR 43997, July 25, 2022] § 4901.22 Partial disclosure. If an otherwise disclosable record contains some material that is protected from disclosure, the record will not for that reason be withheld from disclosure if deletion of the protected material is feasible. This principle will be applied in particular to identifying details the disclosure of which would constitute an unwarranted invasion of personal privacy. [61 FR 34123, July 1, 1996, as amended at 87 FR 43997, July 25, 2022] § 4901.23 Record of concern to agency other than PBGC. When reviewing a record in response to a disclosure request, PBGC will determine whether another agency is better able to determine whether the record is exempt from disclosure under FOIA. As to any such record, PBGC will proceed in one of the following ways: (a) Consultation with another agency. (b) Referral to another agency. (2) Whenever PBGC refers any part of the responsibility for responding to a disclosure request to another agency, PBGC will document the referral, maintain a copy of the record that it refers, and notify the requester of the referral, informing the requester of the name(s) of the agency to which the record was referred, including that agency's FOIA office. [87 FR 43997, July 25, 2022] § 4901.24 Special rules for trade secrets and confidential commercial or financial information submitted to PBGC. (a) Application. (1) Access to the information is denied. (2) The information has been published or officially made available to the public. (3) Disclosure of the information is required by law other than FOIA. (4) The designation under paragraph (b) of this section appears obviously frivolous, except that in such a case PBGC will notify the submitter in writing of a determination to disclose the information within a reasonable time before the disclosure date (which shall be specified in the notice). (b) Designation by submitter. (c) Notification to submitter of disclosure request. (d) Objection of submitter. (e) Notification to submitter of decision to disclose. (f) Notification to submitter of action to compel disclosure. [61 FR 34123, July 1, 1996, as amended at 87 FR 43997, July 25, 2022] Subpart D—Fees § 4901.31 Charges for services. (a) In general. (1) Direct costs (2) Search (3) Review e.g., (4) Duplication (b) Categories of requesters. (1) Commercial use requesters. (ii) A “commercial use” request is a request that asks for information for a use or a purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. PBGC's decision to place a requester in the commercial use category will be made on a case-by-case basis dependent upon on the requester's intended use of the information. PBGC will notify requesters of their placement in this category. (2) Non-commercial scientific or educational institutions, or news media requesters. (ii) A non-commercial scientific institution is an institution that is not operated for a “commercial use” as that term is defined in paragraph (b)(1)(ii) of this section, and which is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. (iii) An educational institution is any school that operates a program of scholarly research. A requester in this fee category must show that the request is made in connection with his or her role at the educational institution. PBGC may seek verification from the requester that the request is in furtherance of scholarly research and PBGC will advise requesters of their placement in this category. (iv)(A) A representative of the news media is any person or entity that gathers information of potential interest to a segment of the public, uses editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term news means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals that disseminate “news” and make their products available through a variety of means to the general public, including news organizations that disseminate solely on the internet. These examples are not intended to be all-inclusive. A “freelance” journalist who demonstrates a solid basis for expecting publication through a news media entity will be considered as a representative of the news media. (B) To be eligible for inclusion in this category, the request must not be made for a commercial use. A request for records supporting the news dissemination function of the requester who is a representative of the news media will not be considered to be a request that is for a commercial use. (3) All other requesters. (c) Aggregation of requests. (d) Waiver or reduction of charges. (e) Unusual or exceptional circumstances. (1) PBGC has determined that unusual circumstances (as defined in section 552(a)(6)(B) of FOIA) apply, PBGC needs more than 10 additional days to process the disclosure request, and more than 5,000 pages are necessary to respond to the request, provided that: (i) PBGC has provided timely written notice of this determination to the requester; and (ii) PBGC has discussed with the requester, or made three or more good-faith attempts to do so, via written mail, electronic mail, or telephone how the requester could effectively limit the scope of the request. (2) PBGC has determined that unusual circumstances (as defined in section 552(a)(6)(B) of FOIA) apply, PBGC has provided timely written notice to the requester of the unusual circumstances extending the time limit by 10 additional days, and PBGC processes the disclosure request within that time. (3) A court has determined that exceptional circumstances exist (as defined in section 552(a)(6)(C) of FOIA) and has issued an order excusing PBGC's failure to comply with the time limit. [61 FR 34123, July 1, 1996, as amended at 82 FR 26992, June 13, 2017; 87 FR 43997, July 25, 2022] § 4901.32 Fee schedule. (a) Charges for searching and review of records. (1) Search time and review time. (2) Retrieving records stored by NARA. (b) Charges for duplication of records. (1) Standard copying fee. (2) Voluminous material. (3) Indexes. (c) Other charges. [61 FR 34123, July 1, 1996, as amended at 87 FR 43999, July 25, 2022] § 4901.33 Payment of fees. (a) Medium of payment. www.pbgc.gov. (b) Advance payment or assurance of payment. (1) Where PBGC estimates or determines that charges allowable under the rules in this subpart, are likely to exceed $250, PBGC may require advance payment of the entire fee or assurance of payment, as follows: (i) Where the requester has a history of prompt payment of fees under this part, PBGC will notify the requester of the likely cost and obtain satisfactory assurance of full payment; or (ii) Where the requester has no history of payment for requests made pursuant to FOIA and this part, PBGC may require the requester to make an advance payment of an amount up to the full estimated charges. (2) Where the requester has previously failed to pay a fee charged in a timely fashion ( i.e., (c) Late payment interest charges. [61 FR 34123, July 1, 1996, as amended at 68 FR 61358, Oct. 28, 2003; 87 FR 43999, July 25, 2022] § 4901.34 Waiver or reduction of charges. (a) The Disclosure Officer may waive or reduce fees otherwise applicable under this subpart when disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government and is not primarily in the commercial interest of the requester. A fee waiver or reduction request must set forth full and complete information upon which the request is based. (b) If the Disclosure Officer determines that the request for fee waiver or reduction will be denied, the requester will be so advised in writing with a brief statement of the reasons for the denial. The writing will include the name and title or position of the person(s) responsible for the denial, outline the appeal procedure available, and notify the requester of the right to seek dispute resolution services from a PBGC FOIA Public Liaison or the Office of Government Information Services. [61 FR 34123, July 1, 1996, as amended at 87 FR 43999, July 25, 2022]