2024-24210. Privacy Act Regulation; Exemption for Legal Case Management Records

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Pension Benefit Guaranty Corporation

1. 29 CFR Part 4902
2. RIN 1212-AB59

AGENCY:

Pension Benefit Guaranty Corporation.

ACTION:

Proposed rule.

SUMMARY:

The Pension Benefit Guaranty Corporation is proposing to amend its Privacy Act regulation to exempt a system of records that supports law enforcement investigations through legal case management.

DATES:

Comments must be received on or before November 21, 2024 to be assured of consideration.

ADDRESSES:

Comments may be submitted by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Email: [e-mail]. Refer to RIN 1212-AB59 in the subject line.
• Mail or Hand Delivery: Regulatory Affairs Division, Office of the General Counsel, Pension Benefit Guaranty Corporation, 445 12th Street SW, Washington, DC 20024-2101.

Commenters are strongly encouraged to submit comments electronically. Commenters who submit comments on paper by mail should allow sufficient time for mailed comments to be received before the close of the comment period. All submissions must include the agency's name (Pension Benefit Guaranty Corporation or PBGC), the title for this rulemaking (Privacy Act Regulation; Exemption for Legal Case Management Records), and the Regulation Identifier Number for this rulemaking (RIN 1212-AB59).

Comments received will be posted without change to PBGC's website, www.pbgc.gov, including any personal information provided. Do not submit comments that include any personally identifiable information or confidential business information.

Copies of comments may also be obtained by writing to Disclosure Division, Office of the General Counsel, Pension Benefit Guaranty Corporation, 445 12th Street SW, Washington, DC 20024-2101, or calling 202-326-4040 during normal business hours. If you are deaf or hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.

FOR FURTHER INFORMATION CONTACT:

Karen Levin ( [e-mail]), Attorney, Regulatory Affairs Division ( [e-mail]), Office of the General Counsel, at 202-229-3559, or Shawn Hartley ( [e-mail]), Chief Privacy Officer, Office of the General Counsel, at 202-229-6321. If you are deaf or hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.

SUPPLEMENTARY INFORMATION:

Executive Summary

This proposed rule would amend PBGC's regulation on Disclosure and Amendment of Records Pertaining to Individuals under the Privacy Act (29 CFR part 4902) to exempt from disclosure information contained in a system of records for PBGC's Office of Negotiations and Restructuring/Office of General Counsel Case Management System. The exemption is needed because records in this system include ( print page 84315) investigatory material compiled for administrative, civil, and criminal law enforcement purposes.

Legal authority for this proposed rule is provided by section 4002(b)(3) of the Employee Retirement Income Security Act of 1974 (ERISA) and 5 U.S.C. 552a(k)(2).

Background

The Pension Benefit Guaranty Corporation (PBGC) administers two insurance programs for private-sector defined benefit pension plans under title IV of the Employee Retirement Income Security Act of 1974 (ERISA): a single-employer plan termination insurance program and a multiemployer plan insolvency insurance program. In addition, PBGC administers a special financial assistance program for certain financially distressed multiemployer plans.

As a Federal agency, PBGC is subject to the Privacy Act of 1974, 5 U.S.C. 552a (Privacy Act), in its collection, maintenance, use, and dissemination of any personally identifiable information that it maintains in a “system of records.” A system of records is defined under the Privacy Act as “a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.” ^[1]

PBGC previously established a system of records, “PBGC-19, Office of Negotiations and Restructuring/Office of General Counsel Case Management System—PBGC.” This system of records was last published in the “Notice” section of the Federal Register on September 1, 2021, at 86 FR 49061.

This system collects and maintains personally identifiable information obtained by the Office of General Counsel in matters involving administrative, civil, or criminal law enforcement investigations. Records from this system are used on a need-to-know basis to manage various legal matters; to facilitate administrative, civil, or criminal law enforcement investigations and activities; to receive referrals for investigation from internal and external partners; to meet other Office of General Counsel program requirements; and to investigate/manage cases involving violations of administrative, civil, or criminal laws.

Exemption

Under section 552a(k) of the Privacy Act, PBGC may promulgate regulations exempting information contained in certain systems of records from specified sections of the Privacy Act including the section mandating disclosure of information to an individual who has requested it. Among other systems, PBGC may exempt a system that is “investigatory material compiled for law enforcement purposes.” ^[2] Under this provision, PBGC has exempted, in §§ 4902.10, 4902.11, and 4902.12 of its Privacy Act regulation, records of the investigations conducted by its Personnel Security Department contained in “PBGC-12, Personnel Security Investigation Records,” records of the investigations conducted by the Office of Inspector General and contained in “PBGC-17, Office of Inspector General Investigative File System—PBGC,” and records of insider threat investigations conducted by PBGC contained in “PBGC-26, PBGC Insider Threat and Data Loss Prevention—PBGC.”

The PBGC-19, Office of Negotiations and Restructuring/Office of General Counsel Case Management System—PBGC system contains: (1) records derived from the Office of Inspector General, Personnel Security, or insider threat investigations, (2) summaries or reports containing information about administrative, civil, and criminal legal investigations, (3) information related to investigative or analytical efforts by PBGC legal, security, or law enforcement personnel, (4) reports about potential administrative, civil, or criminal law enforcement activities obtained through the management and operation of the Office of General Counsel, and (5) reports about potential civil or criminal legal investigations obtained from other Federal Government sources involving PBGC. The records contained in this system include investigative material of actual, potential, or alleged criminal, civil, or administrative violations and law enforcement actions. These records are within the material permitted to be exempted under section 552a(k)(2) of the Privacy Act.

This proposed rule would amend PBGC's Privacy Act regulation to redesignate § 4902.13 (Filing rules; computation of time) as § 4902.14 and to add a new § 4902.13 as an exemption for PBGC-19, Office of Negotiations and Restructuring/Office of General Counsel Case Management System—PBGC, from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f). Exemption from these sections of the Privacy Act would mean that, with respect to records in the system, PBGC would not be required to: (1) disclose records to an individual upon request, (2) keep an accounting of individuals who request records, (3) maintain only records as necessary to accomplish an agency purpose, or (4) publish notice of certain revisions of the system of records.

Compliance With Rulemaking Guidelines

The Office of Management and Budget (OMB) has determined that this rulemaking is not a “significant regulatory action” under Executive Order 12866. Accordingly, OMB has not reviewed the proposed rule under 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. See 5 U.S.C. 603, 604.

List of Subjects in 29 CFR Part 4902

• Privacy

In consideration of the foregoing, PBGC proposes to amend 29 CFR part 4902 as follows:

PART 4902—DISCLOSURE AND AMENDMENT OF RECORDS PERTAINING TO INDIVIDUALS UNDER THE PRIVACY ACT

1. The authority citation for part 4902 will continue to read as follows:

Authority: 5 U.S.C. 552a, 29 U.S.C. 1302(b)(3).

§ 4902.1

[Amended]

2. In § 4902.1, amend paragraph (d) by removing “4902.12” and adding in its place “4902.13”.

§ 4902.13

[Redesignated as § 4902.14]

3. Redesignate § 4902.13 as § 4902.14.

4. Add new § 4902.13 to read as follows:

§ 4902.13

Specific exemptions: Legal Case Management.

(a) Exemption. Under the authority granted by 5 U.S.C. 552a(k)(2), PBGC hereby exempts the system of records entitled “PBGC-19, Office of Negotiations and Restructuring/Office of General Counsel Case Management System-PBGC” from the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f).

(b) Reasons for exemption. The reasons for asserting this exemption are ( print page 84316) because the disclosure and other requirements of the Privacy Act could substantially compromise the efficacy and integrity of PBGC's ability to investigate administrative, civil, or criminal legal matters. Disclosure could invade the privacy of 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 legal 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).

Issued in Washington, DC.

Ann Y. Orr,

Acting Director, Pension Benefit Guaranty Corporation.

Footnotes

1.   See5 U.S.C. 552a(a)(5)

2.   See5 U.S.C. 552a(k)(2).