2011-12711. Proposed Extension of Information Collection Request Submitted for Public Comment; Consent To Receive Employee Benefit Plan Disclosure Electronically; Prohibited Transaction Exemption 86-128; Furnishing Documents to the Secretary of ...

AGENCY:

Employee Benefits Security Administration, Department of Labor.

ACTION:

Notice.

SUMMARY:

The Department of Labor (the Department), in accordance with the Paperwork Reduction Act of 1995 (PRA 95) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Employee Benefits Security Administration (EBSA) is soliciting comments on the proposed extension of the information collection requests (ICRs) contained in the documents that are described below. The Department is not proposing to make any changes to the ICRs at this time. A copy of the ICRs may be obtained by contacting the office listed in the ADDRESSES section of this notice. ICRs also are available at reginfo.gov (http://www.reginfo.gov/​public/​do/​PRAMain).

DATES:

Written comments must be submitted to the office shown in the Addresses section on or before July 25, 2011.

ADDRESSES:

G. Christopher Cosby, Department of Labor, Employee Benefits Security Administration, 200 Constitution Avenue, NW., N-5718, Washington, DC 20210, [phone], FAX [phone] (these are not toll-free numbers).

SUPPLEMENTARY INFORMATION:

This notice requests public comment on the Department's request for extension of the Office of Management and Budget's (OMB) approval of ICRs contained in the rules described below. The Department is not proposing any changes to the existing ICRs at this time. An agency may not conduct or sponsor, and a person is not required to respond to, an information collection unless it displays a valid OMB control number. A summary of the ICRs and the current burden estimates follows:

Agency: Employee Benefits Security Administration, Department of Labor.

Title: Consent to Receive Employee Benefit Plan Disclosure Electronically.

Type of Review: Extension without change of a currently approved collection of information.

OMB Number: 1210-0121.

Affected Public: Business or other for-profit; Not-for-profit institutions.

Respondents: 50,000.

Responses: 3,400,000.

Estimated Total Burden Hours: 7,000.

Estimated Total Burden Cost (Operating and Maintenance): $170,000.

Description: The Department established a safe harbor pursuant to which all pension and welfare benefit plans covered by Title I of ERISA may use electronic media to satisfy disclosure obligations under Title I of ERISA (29 CFR 2520.104b-1). Employee benefit plan administrators will be deemed to satisfy their disclosure obligations when furnishing documents electronically only if a participant who does not have access to the employer's electronic information system in the normal course of his duties, or a beneficiary or other person entitled to documents, has affirmatively consented to receive disclosure documents. Prior to consenting, the participant or beneficiary must also be provided with a clear and conspicuous statement indicating the types of documents to which the consent would apply, that consent may be withdrawn at any time, procedures for withdrawing consent and updating necessary information, the right to obtain a paper copy, and any hardware and software requirements. In the event of a hardware or software change that creates a material risk that the individual will be unable to access or retain documents that were the subject of the initial consent, the individual must be provided with information concerning the revised hardware or software, and an opportunity to withdraw a prior consent. The Department published a Request for Information regarding electronic disclosure in the Federal Register on April 7, 2011 (75 Fed. Reg. 19285), which is unrelated to this notice. The ICR is scheduled to expire on August 31, 2011.

Agency: Employee Benefits Security Administration, Department of Labor.

Title: Prohibited Transaction Class Exemption 86-128.

Type of Review: Extension without change of a currently approved collection of information.

OMB Number: 1210-0059.

Affected Public: Business or other for-profit; Not-for-profit institutions.

Respondents: 4,200.

Responses: 1,168,529.

Estimated Total Burden Hours: 59,072.

Estimated Total Burden Cost (Operating and Maintenance): $711,630.

Description: Prohibited Transaction Class Exemption 86-128 permits persons who serve as fiduciaries for employee benefit plans to effect or execute securities transactions on behalf of employee benefit plans. The exemption also allows sponsors of pooled separate accounts and other pooled investment funds to use their affiliates to effect or execute securities transactions for such accounts in order to recapture brokerage commissions for the benefit of employee benefit plans whose assets are maintained in pooled separate accounts managed by insurance companies. This exemption provides relief from certain prohibitions in section 406(b) of the Employee Retirement Income Security Act of 1974 (ERISA) and from the taxes imposed by section 4975(a) and (b) of the Internal Revenue Code of 1986 (the Code) by reason of Code section 4975(c)(1)(E) or (F).

In order to insure that the exemption is not abused, that the rights of participants and beneficiaries are protected, and that the exemption's conditions are being complied with, the Department has included in the exemption five information collection requirements. The first requirement is written authorization executed in advance by an independent fiduciary of the plan whose assets are involved in the transaction with the broker-fiduciary. The second requirement is, within three months of the authorization, the broker-fiduciary furnish the independent fiduciary with any reasonably available information necessary for the independent fiduciary to determine whether an authorization should be made. The information must include a copy of the exemption, a form for termination, and a description of the broker-fiduciary's brokerage placement practices. The third requirement is that the broker-fiduciary must provide a termination form to the independent fiduciary annually so that the independent fiduciary may terminate the authorization without penalty to the plan; failure to return the form constitutes continuing authorization. The fourth requirement is for the broker-fiduciary to report all transactions to the independent fiduciary, either by confirmation slips or through quarterly reports. The fifth requirement calls for the broker-fiduciary to provide an annual summary of the transactions. The annual summary must contain all security transaction-related charges incurred by the plan, the brokerage placement practices, and a portfolio turnover ratio. The ICR is scheduled to expire on September 30, 2011.

Agency: Employee Benefits Security Administration, Department of Labor.

Title: Furnishing Documents to the Secretary of Labor on Request under ERISA Section 104(a)(6).

Type of Review: Extension without change of a currently approved collection of information.

OMB Number: 1210-0112.

Affected Public: Business or other for-profit; Not-for-profit institutions.

Respondents: 500.

Responses: 500.

Estimated Total Burden Hours: 44.

Estimated Total Burden Cost (Operating and Maintenance): $1,665.

Description: As a result of the Taxpayer Relief Act of 1997 (TRA 97), the plan administrators of ERISA-covered employee benefit plans no longer need to file copies of the summary plan descriptions and summaries of material modifications that are publicly available. TRA 97 added paragraph (6) to section 104(a) of ERISA. Prior to the TRA 97 amendments, ERISA required certain documents be filed with the Department so that plan participants and beneficiaries could obtain the documents without having to turn to the plan administrator. The new section 104(a)(6) authorizes the Department to request these documents on behalf of plan participants and beneficiaries. The Department issued a final implementing guidance on this matter on January 7, 2002 (67 FR 772). The ICR relating to document requests is scheduled to expire on December 31, 2011.

Focus of Comments

The Department is particularly interested in comments that:

• Evaluate whether the collections of information are necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the collections of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., by permitting electronic submissions of responses.

Comments submitted in response to this notice will be summarized and/or included in the ICRs for OMB approval of the extension of the information collection; they will also become a matter of public record.

Dated: May 18, 2011.

Joseph S. Piacentini,

Director, Office of Policy and Research, Employee Benefits Security Administration.