2011-483. Employee Benefits Security Administration

AGENCY:

Employee Benefits Security Administration, Labor.

ACTION:

Notice of hearing and extension of comment period.

SUMMARY:

Notice is hereby given that the Employee Benefits Security Administration will hold a hearing to consider issues attendant to adopting a regulation defining when a person is considered to be a “fiduciary” by reason of giving investment advice to an employee benefit plan or to a plan's participants and beneficiaries.

DATES:

The hearing will be held on March 1, 2011 and, if necessary, March 2, 2011, beginning at 9 a.m., EST.

ADDRESSES:

The hearing will be held at the U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT:

Fred Wong or Luisa Grillo-Chope, Office of Regulations and Interpretations, Employee Benefits Security Administration, U.S. Department of Labor, at [phone]. This is not a toll-free number.

SUPPLEMENTARY INFORMATION:

The Employee Benefits Security Administration (EBSA) published in the Federal Register on October 22, 2010, (75 FR 65263), a proposed rule under the Employee Retirement Income Security Act (ERISA) that, upon adoption, more broadly defines the circumstances under which a person is considered a “fiduciary” by reason of giving investment advice to an employee benefit plan or to a plan's participants.^[1] The proposal amends a thirty-five year old rule that may inappropriately limit the types of investment advice relationships that give rise to fiduciary duties on the part of the investment advisor. The current regulation significantly narrows the plain language of section 3(21)(A)(ii) of the Employee Retirement Income Security Act (ERISA) by creating a 5-part test that must be satisfied in order for a person to be considered a fiduciary by reason of giving investment advice. The changes set forth in the proposed regulation are intended to more closely conform such determinations to the statutory definition, as well as take into account the significant changes in both the financial services industry and the expectations of plan officials and participants who receive investment advice. For a full discussion of the changes, see the October 22, 2010 Federal Register at page 65263, et seq. or visit EBSA's Web site at http://www.dol.gov/​ebsa/​,, see Proposed Rules.

Since publication in the Federal Register, there has been considerable interest expressed in the proposed rule and its impact on various segments of the employee benefits and financial communities, as well as individuals and organizations involved with appraisals of employer stock and other assets. In order to ensure that all issues are fully considered and interested persons have sufficient time to share their views on this important regulation, EBSA has announced that it is extending the period for submitting comments on the proposal until February 3, 2011, two weeks after the close of the January 20, 2011 comment period provided in the proposed regulation, and it is holding a public hearing, the subject of this notice.

The hearing will be held on March 1, 2011 and, if necessary, March 2, 2011, beginning at 9 a.m. EST, in the plaza auditorium of the U.S. Department of Labor, Frances Perkins Building, at 200 Constitution Avenue, NW., Washington, DC 20210.

Persons interested in presenting testimony and answering questions at this public hearing must submit, by 3:30 p.m. EST, February 9, 2011, a written request to testify and an outline of the issues they would like to address at the hearing. It should be noted that, while reasonable efforts will be made to accommodate requests to testify on the specified issues, it may be necessary to limit the number of those testifying in order to provide an opportunity for the presentation of the broadest array of points of view during the period allotted for the hearing. Any persons not afforded an opportunity to testify will still have an opportunity to submit a written statement on the specified issues for the record. The hearing will be open to the general public.

To facilitate the receipt and processing of requests to testify, EBSA encourages interested persons to submit their requests and outlines by e-mail to [e-mail], subject line: Fiduciary Definition Hearing. Persons submitting requests and outlines electronically should not submit paper copies. Persons submitting requests and outlines on paper should send or deliver their requests and outlines to the Office of Regulations and Interpretations, Employee Benefits Security Administration, Attn: Fiduciary Definition Hearing, Room N-5655, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. All requests and outlines submitted will be available to the public, without charge, online at http://www.dol.gov/​ebsa and at the Public Disclosure Room, N-1513, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210.

EBSA will prepare an agenda indicating the order of presentation of oral comments and testimony. In the absence of special circumstances, each presenter will be allotted ten (10) minutes in which to complete his or her presentation. Those individuals who make oral comments and present testimony at the hearing should be prepared to answer questions regarding their information and/or comments. Those requesting to testify also should be prepared to participate as part of a panel, to the extent possible, organized by issue.

Any individuals with disabilities who may need special accommodations should notify the Agency when contacted concerning the scheduling of their testimony.

Information about the agenda will be posted on http://www.dol.gov/​ebsa no later than February 17, 2011. Individuals planning to attend the hearing should provide contact information by e-mail to [e-mail] and arrive at least 15 minutes prior to the start of the hearing to expedite entrance into the building.

Notice of Public Hearing

Notice is hereby given that a public hearing will be held on March 1, 2011 and, if necessary, March 2, 2011, concerning issues related to the proposed rule defining when a person will be considered a “fiduciary” by reason of giving investment advice to a plan or to the plan's participants. The hearing will be held beginning at 9 a.m. EST in the plaza auditorium of the U.S. Department of Labor, Frances Perkins Building, 200 Constitution Avenue, NW., Washington, DC 20210.

Notice of Extension of Comment Period

Notice is hereby given that the period for submitting comments on the proposed Definition of the Term “Fiduciary,” published in the Federal Register on October 22, 2010 (75 FR 65263), is being extended until February 3, 2011.

To facilitate the receipt and processing of comment letters, the EBSA encourages interested persons to submit their comments electronically by e-mail to [e-mail], subject line: Definition of Fiduciary Proposed Rule or by using the Federal eRulemaking portal at http://www.regulations.gov. Persons submitting comments electronically are encouraged not to submit paper copies. Persons interested in submitting paper copies should send or deliver their comments to the Office of Regulations and Interpretations, Employee Benefits Security Administration, Attn: Definition of Fiduciary Proposed Rule, Room N-5655, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. All comments will be available to the public, without charge, online at http://www.regulations.gov and http://www.dol.gov/​ebsa and at the Public Disclosure Room, N-1513, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. Warning: Do not include any personally identifiable information (such as name, address, or other contact information) or confidential business information that you do not want publicly disclosed. All comments may be posted on the Internet and can be retrieved by most Internet search engines. Comments may be submitted anonymously.

Signed at Washington, DC, this 6th day of January, 2011.

Phyllis C. Borzi,

Assistant Secretary, Employee Benefits Security Administration, Department of Labor.

Footnotes

1.  The rule would also apply for purposes of the prohibited transaction provisions contained in section 4975 of the Internal Revenue Code.