2023-18276. Agency Information Collection Activities; Request for Public Comment

AGENCY:

Employee Benefits Security Administration (EBSA), Department of Labor.

ACTION:

Notice.

SUMMARY:

The Department of Labor (the Department), in accordance with the Paperwork Reduction Act, 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 described below. 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 October 24, 2023.

ADDRESSES:

James Butikofer, Department of Labor, Employee Benefits Security Administration, 200 Constitution Avenue NW, Room N–5718, Washington, DC 20210, or [e-mail].

SUPPLEMENTARY INFORMATION:

I. Current Actions

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 and prohibited transaction exemptions 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 burden estimates follows:

Agency: Employee Benefits Security Administration, Department of Labor.

Title: Suspension of Pension Benefits Pursuant to Regulations 29 CFR 2530.203–3.

Type of Review: Extension of a currently approved collection of information.

OMB Number: 1210–0048.

Affected Public: Businesses or other for-profits.

Respondents: 39,457.

Responses: 171,221.

Estimated Total Burden Hours: 132,639.

Estimated Total Burden Cost (Operating and Maintenance): $48,524.

Description: Section 203(a)(3)(B) of the Employee Retirement Income Security Act of 1974 (ERISA) governs the circumstances under which pension plans may suspend pension benefit payments to retirees who return to work or to participants who continue to work beyond normal retirement age. This section sets forth the circumstances and conditions under which such benefit payments may be suspended. In order for a plan to suspend benefits pursuant to the regulation, it must notify the affected retiree or participant during the first calendar month or payroll period in which the plan withholds payment that benefits are suspended. Requests for such reviews may be considered in accordance with the claims procedure adopted by the plan pursuant to section 503 of the Act and applicable regulations. The notice must include the specific reasons for such suspension, a general description of the plan provisions authorizing the suspension, a copy of the relevant plan provisions, and a statement indicating where the applicable regulations may be found, i.e.,29 CFR 2530.203–3. In addition, the suspension notification must inform the retiree or participant of the plan's procedure for affording a review of the suspension of benefits.

The Department has received approval from OMB for this ICR under OMB Control No. 1210–0048. The current approval is scheduled to expire on January 31, 2024.

Agency: Employee Benefits Security Administration, Department of Labor.

Title: Prohibited Transaction Exemption 1981–8, Class Exemption Covering Certain Short-Term Investment.

Type of Review: Extension of a currently approved collection of information.

OMB Number: 1210–0061.

Affected Public: Not-for-profit institutions, Businesses, or other for-profits.

Respondents: 95,170.

Responses: 413,320.

Estimated Total Burden Hours: 103,330.

Estimated Total Burden Cost (Operating and Maintenance): $114,109.

Description: PTE 81–8 permits the investment of plan assets that involve the purchase or other acquisition, holding, sale, exchange, or redemption by or on behalf of an employee benefits plan in certain types of short-term investments. PTE 81–8 covers five types of short-term investments: banker's acceptances, commercial paper, repurchase agreements, certificates of deposit, and bank securities. Without the exemption, certain aspects of these transactions might be prohibited by ERISA section 406. In order to grant an exemption under ERISA section 408 and Code section 4975(c)(2), the Department must determine that the exemption is: administratively feasible, in the interests of the plan and its participants and beneficiaries, and protective of the rights of participants and beneficiaries of such plan.

The Department requires minimal information collection pertaining to the affected transactions and two basic disclosure requirements. Both disclosure requirements affect only the portion of the exemption dealing with repurchase agreements. The first requirement calls for the repurchase agreements between the seller and the plan to be in writing. The second requirement obliges the seller of such repurchase agreements to furnish the plan with the most recent available audited statement of its financial condition as well as its most recent available unaudited statement at the time of the sale and as the statements are issued. The seller must also represent, either in the repurchase agreement or prior to each repurchase agreement transaction, that as of the time the transaction is negotiated, there has been no material adverse change in the seller's financial condition since the date the last financial statement was furnished that has not been disclosed to the plan fiduciary with whom the written agreement is made.

The Department has received approval from OMB for this ICR under OMB Control No. 1210–0061. The current approval is scheduled to expire on January 31, 2024.

Agency: Employee Benefits Security Administration, Department of Labor.

Title: Prohibited Transaction Exemption 1996–62, Class Exemption to Permit Certain Authorized Transactions Between Plans and Parties in Interest.

Type of Review: Extension of a currently approved collection of information.

OMB Number: 1210–0098.

Affected Public: Not-for-profit institutions, Businesses, or other for-profits.

Respondents: 7.

Responses: 3,515.

Estimated Total Burden Hours: 88.

Estimated Total Burden Cost (Operating and Maintenance): $30,156.

Description: PTE 96–62 provides accelerated approval of an exemption permitting a plan to engage in a transaction which might otherwise be prohibited following a demonstration to the Department that the transaction is substantially similar to either transactions described in at least two prior individual exemptions granted by the Department and that provided relief from the same restriction(s) within the 60-month period ending on the date of the filing of the written submission; or one individual exemption that was granted by the Department, and provided relief from the same restriction(s), within 120-month period ending on the date of filing of the written submission and at least one transaction that has received final authorization pursuant to PTE 96–62 within a 60-month period ending on the date of the filing of the written submission. In addition, there must be little, if any, risk of abuse or loss to a plan's participants and beneficiaries as a result of the transaction. An applicant for an exemption must submit the necessary documentation as described in the class exemption to the Department for the Department to make an informed determination regarding an application for accelerated approval. Following tentative authorization, the applicant must provide written notice to interested persons in a manner that is reasonably calculated to result in the receipt of such notice by interested persons, to ensure that participants and beneficiaries are informed of the application for an exemption and the date of the expiration of the comment period and have an opportunity to comment.

The Department has received approval from OMB for this ICR under OMB Control No. 1210–0098. The current approval is scheduled to expire on January 31, 2024.

Agency: Employee Benefits Security Administration, Department of Labor.

Title: Prohibited Transaction Exemption 98–54, Class Exemption Relating to Certain Employee Benefit Plan Foreign Exchange Transactions Executed Pursuant to Standing Instructions.

Type of Review: Extension of a currently approved collection of information.

OMB Number: 1210–0111.

Affected Public: Businesses or other for-profits.

Respondents: 35.

Responses: 420,000.

Estimated Total Burden Hours: 4,200.

Estimated Total Burden Cost (Operating and Maintenance): $0.

Description: PTE 98–54 permits employee benefit plans to engage in foreign exchange transactions with banks or broker-dealers which are trustees, custodians, fiduciaries, or other parties in interest with respect to such plans pursuant to a standing instruction. The exemption's conditions contain the following information collection requirements: (1) the bank or broker-dealer maintains at all times written policies and procedures regarding the handling of foreign exchange transactions for plans with respect to which the bank or broker-dealer is a trustee, custodian, fiduciary or other party in interest or disqualified person which assure that the person acting for the bank or broker-dealer knows that they are dealing with a plan, a partial copy of which prior to the execution of certain transactions is provided to the plan's independent fiduciary; (2) the covered transaction is performed under a written authorization executed in advance by the fiduciary of the plan whose assets are involved in the transaction, which plan fiduciary is independent of the bank or broker-dealer engaging in the covered transaction or any foreign affiliate thereof; (3) the bank or broker-dealer engaging in the covered transaction furnishes to the independent fiduciary a written confirmation statement with respect to each covered transaction not more than five business days after execution of the transactions; and (4) recordkeeping requirements.

The Department has received approval from OMB for this ICR under OMB Control No. 1210–0111. The current approval is scheduled to expire on January 31, 2024.

Agency: Employee Benefits Security Administration, Department of Labor.

Title: Prohibited Transaction Exemption 2020–02, Improving Investment Advice for Workers & Retirees Prohibited Transaction Exemption.

Type of Review: Extension of a currently approved collection of information.

OMB Number: 1210–0163.

Affected Public: Individuals or Households.

Respondents: 11,782.

Responses: 1,755,959.

Estimated Total Burden Hours: 401,251.

Estimated Total Burden Cost (Operating and Maintenance): $92,063.

Description: PTE 2020–02 permits investment advice fiduciaries ( i.e., registered IAs, BDs, banks, and insurance companies) to receive compensation and engage in principal transactions that would otherwise violate the prohibited transaction provisions of ERISA and the Code. The prohibited transaction provisions of ERISA and the Code generally prohibit fiduciaries with respect to employee benefit plans (Plans) and individual retirement accounts and annuities (IRAs) from engaging in self-dealing and receiving compensation from third parties in connection with transactions involving the Plans and IRAs, and from purchasing and selling investments with the Plans and IRAs when the fiduciaries are acting on behalf of their own accounts (principal transactions).

To qualify for the exemption, investment advice fiduciaries are required to comply with the following information collection requirements: (1) make disclosures to inform retirement investors of their fiduciary status, services offered, and material conflicts of interest; (2) establish, maintain, and enforce written policies and procedures designed to ensure that they and their investment professionals comply with the Impartial Conduct Standards; (3) document the specific reasons for any rollover recommendation and show that the rollover is in the best interest of the retirement investor and provide the documentation to the retirement investor; (4) conduct an annual retrospective review that is reasonably designed to prevent violations of the PTE's Impartial Conduct Standards and the institution's own policies and procedures and provide a written report that is certified by a senior executive officer; and (5) maintain records so that parties relying on an exemption can demonstrate, and the Department can verify, compliance with the conditions of the exemption. Investment advice fiduciaries may choose to self-correct certain violations if, among other things, the financial institution notifies the Department of Labor and the person(s) responsible for conducting the retrospective review.

The Department has received approval from OMB for this ICR under OMB Control No. 1210–0163. The current approval is scheduled to expire on February 29, 2024.

Agency: Employee Benefits Security Administration, Department of Labor.

Title: Delinquent Filer Voluntary Compliance Program.

Type of Review: Extension of a currently approved collection of information.

OMB Number: 1210–0089.

Affected Public: Not-for-profit institutions, Businesses or other for-profits.

Respondents: 10,350.

Responses: 10,350.

Estimated Total Burden Hours: 518.

Estimated Total Burden Cost (Operating and Maintenance): $778,718.

Description: Under Title I of ERISA, the administrator of each welfare plan and each pension plan, unless otherwise exempt, is required to file an annual report with the Secretary containing the information set forth in section 103 of ERISA. The statutory annual reporting requirements under Titles I and IV of ERISA, as well as the Internal Revenue Code (the Code), are satisfied generally by filing the appropriate annual return/report (the Form 5500).

On April 27, 1995, the Department implemented the Delinquent Filer Voluntary Compliance Program (the DFVC Program) in an effort to encourage annual reporting compliance. Under the DFVC Program, administrators otherwise subject to the assessment of higher civil penalties are permitted to pay reduced civil penalties for voluntarily complying with the annual reporting requirements under Title I of ERISA.

The only information collection requirement included in the DFVC Program is the requirement of providing data necessary to identify the plan along with the penalty payment. This data is the only means by which each penalty payment is associated with the relevant plan. With respect to most pension plans and welfare plans, the requirement is satisfied by sending, along with the penalty payment, a copy of the delinquent annual report (without attachments or schedules) which is filed with the Department at a different address under the EFAST system. In the event that the plan administrator files the delinquent annual report using a 1998 or prior plan year form, a paper copy of only the first page of the Form 5500 or Form 5500–C, as applicable, should be submitted along with the penalty payment.

Certain pension plans for highly compensated employees, commonly called “top hat” plans, and apprenticeship plans may file a one-time statement in lieu of annual reports. With respect to such plans, information collection requirements of the DFVC Program are satisfied by sending a completed first page of an annual report form along with the penalty payment. The one-time statements are required to be sent to a different address within the Department. The DFVC Program is designed to allow the processing of all penalty payments at a single location within the Department.

The Department has received approval from OMB for this ICR under OMB Control No. 1210–0089. The current approval is scheduled to expire on March 31, 2024.

Agency: Employee Benefits Security Administration, Department of Labor.

Title: Request for Assistance from the Department of Labor, Employee Benefits Security Administration.

Type of Review: Extension of a currently approved collection of information.

OMB Number: 1210–0146.

Affected Public: Individuals or Households.

Respondents: 5,582.

Responses: 5,582.

Estimated Total Burden Hours: 2,791.

Estimated Total Burden Cost (Operating and Maintenance): $0.

Description: The Department of Labor's Employee Benefits Security Administration (EBSA) maintains a program designed to provide education and technical assistance to participants and beneficiaries as well as to employers, plan sponsors, and service providers related to their health and retirement plan benefits. EBSA assists participants in understanding their rights, responsibilities, and benefits under employee benefit law and intervenes informally on their behalf with the plan sponsor in order to assist them in obtaining the health and retirement benefits to which they may have been inappropriately denied, which can avert the necessity for a formal investigation or a civil action. EBSA maintains a toll-free telephone number through which inquirers can reach Benefits Advisors in ten Regional Offices. EBSA has also made a request for assistance form available on its website for those wishing to obtain assistance in this manner. Contact with EBSA is entirely voluntary.

The collection of information is an intake form for assistance requests from the public. This information includes the plan type, broad categories of problem type, contact information for responsible parties, and a mechanism for the inquirer to attach relevant documents. Summary data from the existing intake form has also been used, in accordance with section 513 of ERISA, to respond to requests for information regarding employee benefit plans from members of Congress and governmental oversight entities, and to inform the policy formulation process.

The Department has received approval from OMB for this ICR under OMB Control No. 1210–0146. The current approval is scheduled to expire on March 31, 2024.

Agency: Employee Benefits Security Administration, Department of Labor.

Title: Alternative Method of Compliance for Certain Simplified Employee Pensions.

Type of Review: Extension of a currently approved collection of information.

OMB Number: 1210–0034.

Affected Public: Businesses or other for-profits.

Respondents: 35,560.

Responses: 67,930.

Estimated Total Burden Hours: 21,227.

Estimated Total Burden Cost (Operating and Maintenance): $3,223.

Description: Section 110 of ERISA relieves sponsors of certain Simplified Employee Pensions (SEPs) from ERISA's Title I reporting and disclosure requirements by prescribing an alternative method of compliance. These SEPs are, for purposes of this information collection, referred to as “non-model SEPs” because they exclude those SEPs which are created through use of Internal Revenue Service (IRS) Form 5305–SEP, and those SEPs in which the employer influences the employees as to their choice of IRAs to which employer contributions will be made, and that also prohibit withdrawals by participants.

This information collection requirement generally requires timely written disclosure to employees eligible to participate in non-model SEPs, including specific information concerning: participation requirements; allocation formulas for employer contributions; designated contact persons for further information; and, for employer recommended IRAs, specific terms of the IRAs such as rates of return and any restrictions on withdrawals. Moreover, general information is required that provides a clear explanation of: the operation of the non-model SEP; participation requirements and any withdrawal restrictions; and the tax treatment of the SEP-related IRA. Furthermore, statements must be provided that inform participants of: any other IRAs under the non-model SEP other than that to which employer contributions are made; any options regarding rollovers and contributions to other IRAs; descriptions of IRS disclosure requirements to participants and information regarding social security integration (if applicable); and timely notification of any amendments to the terms of the non-model SEP.

The Department has received approval from OMB for this ICR under OMB Control No. 1210–0034. The current approval is scheduled to expire on April 30, 2024.

Agency: Employee Benefits Security Administration, Department of Labor.

Title: Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications

Type of Review: Extension of a currently approved collection of information.

OMB Number: 1210–0060.

Affected Public: Businesses or other for-profits.

Respondents: 20.

Responses: 4,899.

Estimated Total Burden Hours: 632.

Estimated Total Burden Cost (Operating and Maintenance): $551,422.

Description: ERISA sections 406 and 407 and Code section 4975(e) prohibit various transactions between a plan and certain related parties and certain transactions by a plan fiduciary unless a statutory or administrative exemption applies to the transaction. The Department has authority under Reorganization Plan No. 4, pursuant to section 408 of ERISA and section 4975(c)(2) of the Code to grant either individual or class exemptions. In order to grant an exemption under ERISA section 408 and Code section 4975(c) (2), the Department must determine that the exemption is: administratively feasible, in the interests of the plan and its participants and beneficiaries, and protective of the rights of participants and beneficiaries.

In order to make such a determination, the Department requires full disclosure of information regarding all aspects of the proposed transaction, and the parties and the assets involved. Sections 2570.34 and 2570.35 of the exemption procedure regulation describe the information that must be supplied by the applicant, such as: identifying information (name, type of plan, EIN number, etc.); an estimate of the number of plan participants; a detailed description of the exemption transaction and the parties for which an exemption is requested; a statement regarding which section of ERISA is thought to be violated and whether transaction(s) involved have already been entered into; a statement of whether the transaction is customary in the industry; a statement of the hardship or economic loss, if any, which would result if the exemption were denied; a statement explaining why the proposed exemption would be administratively feasible, in the interests of the plan and protective of the rights of plan participants and beneficiaries; and several other statements. In addition, the applicant must certify that the information supplied is accurate and complete.

The Department has received approval from OMB for this ICR under OMB Control No. 1210–0060. The current approval is scheduled to expire on April 30, 2024.

Agency: Employee Benefits Security Administration, Department of Labor.

Title: Investment Advice Participants and Beneficiaries.

Type of Review: Extension of a currently approved collection of information.

OMB Number: 1210–0134.

Affected Public: Businesses or other for-profits.

Respondents: 11,396.

Responses: 23,033,030.

Estimated Total Burden Hours: 2,423,391.

Estimated Total Burden Cost (Operating and Maintenance): $318,912,816.

Description: Under ERISA, providing “investment advice” is a fiduciary act. A fiduciary who advises participants about plan investment opportunities that pay the adviser fees or commissions may be subject to liability under the Employee Retirement Income Security Act of 1974 (ERISA) prohibited transaction rules. The Pension Protection Act of 2006 (Pub. L. 109–280) amended the ERISA and the Internal Revenue Code (Code) to include a statutory exemption for providing investment advice to participants and beneficiaries in self-directed defined contribution individual account ERISA-covered plans (Plans) and beneficiaries of individual retirement accounts, individual retirement annuities, Archer MSAs, health savings accounts and Coverdell education savings accounts (collectively IRAs) described in the Code. The statutory exemption provides relief from the prohibited transaction provisions of ERISA, and the parallel provisions of the Code.

The information collections that are conditions of the regulation include, third-party disclosures, recordkeeping, and audit requirements. With one exception, the regulation does not require any reporting or filing with the Federal government, but the designated records must be made available upon request. The exception is the requirement that the fiduciary adviser is required under certain circumstances to forward the audit report which is also a required disclosure under the regulation to the Department.

The Department has received approval from OMB for this ICR under OMB Control No. 1210–0134. The current approval is scheduled to expire on April 30, 2024.

Agency: Employee Benefits Security Administration, Department of Labor.

Title: Furnishing Documents to the Secretary of Labor on Request Under Employee Retirement Income Security Act Section 104(a)(6).

Type of Review: Extension of a currently approved collection of information.

OMB Number: 1210–0112.

Affected Public: Not-for-profit institutions, Businesses or other for-profits.

Respondents: 893.

Responses: 893.

Estimated Total Burden Hours: 41.

Estimated Total Burden Cost (Operating and Maintenance): $721.

Description: Prior to the enactment of the Taxpayer Relief Act of 1997 (Pub. L. 105–34, August 5, 1997) (TRA `97), section 104(a) of the Employee Retirement Security Act of 1974 (ERISA) required administrators of employee benefit plans automatically to file the plan's summary plan description (SPD) and any summaries of material modification (SMMs) with the Secretary of the Department of Labor (the Department). TRA `97 eliminated the requirement that these documents be filed automatically with the Department, but added ERISA section 104(a)(6), requiring a plan administrator to furnish documents related to an employee benefit plan to the Department upon request. The requirement that administrators furnish the Department requested plan documents other than SPDs and SMMs was part of section 104(a) prior to enactment of TRA '97; that requirement was moved by TRA '97 to section 104(a)(6) and consolidated with the new furnishing requirement pertaining to SPDs and SMMs.

Pursuant to the regulation, the Department requests documents under section 104(a)(6) when a participant or beneficiary has previously requested the documents directly from the plan administrator and the administrator has failed or refused to provide them. The Department therefore uses the requested information to respond to participants' requests to the Department for documents that the participants were unable to obtain from their plan administrators.

The Department has received approval from OMB for this ICR under OMB Control No. 1210–0112. The current approval is scheduled to expire on June 30, 2024.

II. 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 ICR for OMB approval of the information collection; they will also become a matter of public record.

Signed at Washington, DC, this 18th day of August 2023.

Lisa M. Gomez,

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