E9-10640. Submission for OMB Review: Comment Request

May 1, 2009.

The Department of Labor (DOL) hereby announces the submission of the following public information collection requests (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35). A copy of each ICR, with applicable supporting documentation, including among other things a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the RegInfo.gov Web site at http://www.reginfo.gov/​public/​do/​PRAMain or by contacting Darrin King on 202-693-4129 (this is not a toll-free number)/e-mail: [e-mail].

Interested parties are encouraged to send comments to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Department of Labor—Employee Benefits Security Administration (EBSA), Office of Management and Budget, Room 10235, Washington, DC 20503, Telephone: [phone]/Fax: [phone] (these are not toll-free numbers), e-mail: [e-mail] within 30 days from the date of this publication in the Federal Register. In order to ensure the appropriate consideration, comments should reference the OMB Control Number (see below).

The OMB is particularly interested in comments which:

• Evaluate whether the proposed collection of information is 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 burden of the proposed collection 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., permitting electronic submission of responses.

Agency: Employee Benefits Security Administration.

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

Title of Collection: ERISA Procedure 76-1; Advisory Opinion Procedure.

OMB Control Number: 1210-0066.

Affected Public: Businesses or other for-profits.

Estimated Number of Respondents: 63.

Total Estimated Annual Burden Hours: 652.

Total Estimated Annual Costs Burden (excludes hourly wage costs): $1,425,229.

Description: Information collection provisions of Employee Retirement Income Security Act of 1974 (ERISA) Procedure 76-1 are used by persons supplying information needed for the Department to respond to their request for an interpretation as to the applicability of ERISA to a specific set of facts and circumstances. The Department's responses to such requests are called “information letters” and “advisory opinions.”

Agency: Employee Benefits Security Administration.

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

Title of Collection: Disclosures for Participant Directed Individual Account Plans Under ERISA Section 404(c).

OMB Control Number: 1210-0090.

Affected Public: Businesses or other for-profits.

Estimated Number of Respondents: 296,000.

Total Estimated Annual Burden Hours: 1,316,000.

Total Estimated Annual Costs Burden (excludes hourly wage costs): $63,070,000.

Description: Section 404(c) of the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. 1104(c)) provides that, if an individual account pension plan permits a participant or beneficiary to exercise control over assets in his or her account and the participant or beneficiary in fact exercises such control (as determined under regulations of the Department of Labor), the participant or beneficiary shall not be deemed to be a fiduciary by such exercise of control and no person otherwise a fiduciary to the plan shall be liable for any loss or breach that results solely from this exercise of control. For additional information, see related notice published at Vol. 74 FR 4980 on January 28, 2009.

The Department of Labor's regulation under section 404(c), codified at 29 CFR 2550.404c-1, describes the circumstances in which a participant or beneficiary in an individual account plan is considered to have exercised control over the assets in his or her individual account so as to relieve a fiduciary to the plan of liability relating to the exercise of control. The regulation specifies the manner in which an individual account pension plan must operate in allowing participants or beneficiaries to allocate individual account assets among available investment alternatives, such that section 404(c) will limit the plan fiduciary's liability for the investment decision. The regulation provides, inter alia, that participants and beneficiaries must have adequate information on which to base investment decisions. The regulation specifies the information that a plan must make available before a participant first makes investment decisions; when that information changes, for example when the available investment options under the plan change; and also upon the participant's and beneficiary's request. These information collection provisions are necessary to ensure that participants and beneficiaries are adequately informed about investment alternatives available under the plan, their rights, and the consequences of their investment decisions. Such information is important in assisting participants and beneficiaries in understanding their investment risks and achieving their retirement savings goals. For additional information, see related notice published at Vol. 74 FR 4981 on January 28, 2009.

Agency: Employee Benefits Security Administration.

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

Title of Collection: Settlement Agreements between a Plan and Party in Interest.

OMB Control Number: 1210-0091.

Affected Public: Businesses or other for-profits.

Estimated Number of Respondents: 4.

Total Estimated Annual Burden Hours: 28.

Total Estimated Annual Costs Burden (excludes hourly wage costs): $315.

Description: Section 408(a) of the Employee Retirement Income Security Act of 1974 (ERISA) and section 4975(c)(2) of the Internal Revenue Code of 1986 (the Code) give the Secretary of Labor the authority to grant an exemption to a class or order of fiduciaries, disqualified persons, or transactions from all or part of the restrictions imposed by sections 406 and 407(a) of ERISA and from the taxes imposed by sections 4975(a) and (b) of the Code, by reason of section 4975(c)(1) of the Code.

This information collection request (ICR) relates to two prohibited transaction class exemptions (PTEs) that the Department of Labor (the Department) has granted, both of which involve settlement agreements. These two exemptions are described below:

PTE 94-71. Granted on September 30, 1994, PTE 94-71 exempts from certain restrictions of ERISA and certain taxes imposed by the Code, a transaction or activity that is authorized, prior to the execution of the transaction or activity, by a settlement agreement resulting from an investigation of an employee benefit plan conducted by the Department. The following information collections are among the conditions for the exemption:

• Written Notice. A party engaging in a settlement agreement arising out of a Department investigation must provide written notice to the affected participants and beneficiaries of the plan. The notice must contain an objective description of the transaction or activity, the approximate date on which the transaction will occur, the address of the regional or district office of the Department that negotiated the settlement agreement, and a statement informing participants and beneficiaries of their right to forward their comments to such office.
• Pre-Approval. A copy of the notice and a description of the method by which it will be distributed must be approved in advance by the regional or district office of the Department that negotiated the settlement.

PTE 03-39. Granted on December 31, 2005, PTE 03-39 exempts from certain restrictions of ERISA and certain taxes imposed by the Code, transactions arising out of the settlement of litigation that involve the release of claims against parties in interest in exchange for payment by or on behalf of the party in interest, provided that certain conditions are met, including the following information collections:

• Written Agreement. The terms of the settlement must be specifically described in a written agreement or consent decree. Because it is usual and customary business practice to reduce the terms of a settlement agreement to writing, there is no additional burden associated with this requirement.
• Acknowledgement by Fiduciary. The fiduciary acting on behalf of the plan must acknowledge in writing that s/he is a fiduciary with respect to the settlement of the litigation. It is anticipated that this acknowledgement will be included in the written investment management or trustee agreement outlining the terms and conditions of the fiduciary's retention as a plan service provider. Therefore, no measurable burden is attached to this requirement.

For additional information, see related notice published at Vol. 74 FR 4977 on January 28, 2009.

Agency: Employee Benefits Security Administration.

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

Title of Collection: Voluntary Fiduciary Correction Program.

OMB Control Number: 1210-0118.

Affected Public: Businesses or other for-profits.

Estimated Number of Respondents: 1,525.

Total Estimated Annual Burden Hours: 6,863.

Total Estimated Annual Costs Burden (excludes hourly wage costs): $273,403.

Description: The Voluntary Fiduciary Correction Program provides a method for voluntary correction of specified types of transactions that violate (or are suspected of violating) the prohibited transaction provisions of the Employee Retirement Income Security Act of 1974 and for securing the Department's assurance that it will take no further action with respect to the corrected transaction. For additional information, see related notice published at Vol. 74 FR 4979 on January 28, 2009.

Agency: Employee Benefits Security Administration.

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

Title of Collection: Notice of Blackout Period Under ERISA.

OMB Control Number: 1210-0122.

Affected Public: Businesses or other for-profits.

Estimated Number of Respondents: 45,218.

Total Estimated Annual Burden Hours: 183,342.

Total Estimated Annual Costs Burden (excludes hourly wage costs): $1,628,760.

Description: Public Law 107-204 amended section 101 of the Employee Retirement Income Security Act of 1974 to require plan administrators to furnish affected participants and beneficiaries of individual account pension plans with advance written notice of a “blackout period” during which their right to direct or diversify investments or obtain a loan or distributions, may be temporarily suspended. For additional information, see related notice published at Vol. 74 FR 4978 on January 28, 2009.

Agency: Employee Benefits Security Administration.

Type of Review: Revision of currently approved collection.

Title of Collection: Annual Funding Notice for Defined Benefit Pension Plans.

OMB Control Number: 1210-0126.

Affected Public: Businesses or other for-profits.

Estimated Number of Respondents: 30,458.

Total Estimated Annual Burden Hours: 1,093,173.

Total Estimated Annual Costs Burden (excludes hourly wage costs): $21,630,572.

Description: Public Law 108-218 amended section 101(f) of the Employee Retirement Income Security Act of 1974 (ERISA) to require plan administrators of a defined benefit plan which is a multiemployer plan to each plan year furnish a plan funding notice to each plan participant and beneficiary, to each labor organization representing such participants or beneficiaries, to each employer that has an obligation to contribute under the plan, and to the Pension Benefit Guaranty Corporation.

In August 2006, section 501(a) of the Pension Protection Act of 2006 (PPA) expanded the annual notice requirement to single-employer defined benefit plans. Section 501(c) of the PPA directs the Department to publish a model of the notice required by section 101(f) of ERISA, as amended, not later than one year after the date of enactment of the PPA.

Recently, concerns have been expressed about the imminent compliance date of the new annual funding notice requirements, the absence of regulatory guidance from the Department, and the cost and burdens attendant to annual funding notice compliance efforts prior to the adoption of annual funding notice regulations and the issuance of model annual funding notices by the Department. In recognition of the foregoing, on February 10, 2009, the Department issued a Field Assistance Bulletin 2009-1 (the FAB) concerning the disclosure requirements mandated by the PPA, which provides model notices. The FAB addresses the need for interim guidance pending the adoption of regulations or other guidance under section 101(f) of ERISA by providing that pending further guidance, the Department will, as a matter of enforcement policy, treat a plan administrator as satisfying the requirements of section 101(f), if the administrator complies with the guidance contained in the FAB (and appropriately uses a completed model notice) and has acted in accordance with a good faith, reasonable interpretation of those requirements with respect to matters not specifically addressed in the FAB.

The Department is revising its information collection under OMB Control Number 1210-0126 to reflect the issuance of the FAB at this time. For additional information, see related notices published at Vol. 73 FR 70676 on November 21, 2008 and 74 FR 7489 on February 17, 2009.

Darrin A. King,

Departmental Clearance Officer.