Annual Reporting and Disclosure, 51284-51310 [2021-19713]
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Federal Register / Vol. 86, No. 176 / Wednesday, September 15, 2021 / Proposed Rules
Bombardier
Airplane
Model/Serial
Number
AFMTitle
AFM Revision
CL-600-2B 16
(Variant 604) 5701
through 5988
inclusive
Sub-sub section B., Wing Anti-ice System, of
sub-section 4., Operation in Icing Conditions,
of Section 02-04, Operating Limitations, ~f
Chapter 2 -LIMITATIONS; and sub-sectl~n
M., Icing Conditions During Flight, of Sect10n
04-14 Ice and Rain Protection, of Chapter 4 NORMAL PROCEDURES; of Bombardier
Challenger 605 CL-600-2B 16 AFM, PSP
605-1
Revision 54,
dated
December 18,
2019
CL-600-2B 16
(Variant 604) 6050
through 6153
inclusive
Sub-sub section B., Wing Anti-ice System, of
sub-section 4., Operation in Icing Conditions,
of Section 02-04, Operating Limitations, ~f
Chapter 2 - LIMITATIONS; ~d sub-sectl~n
M., Icing Conditions During Fhght, of Sect10n
04-14 Ice and Rain Protection, of Chapter 4 NORMAL PROCEDURES; of Bombardier
Challenger 650 CL-600-2B16 AFM, PSP
650-1
Revision 19,
dated
December 18,
2019
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(h) Other FAA AD Provisions
The following provisions also apply to this
AD:
(1) Alternative Methods of Compliance
(AMOCs): The Manager, New York ACO
Branch, FAA, has the authority to approve
AMOCs for this AD, if requested using the
procedures found in 14 CFR 39.19. In
accordance with 14 CFR 39.19, send your
request to your principal inspector or
responsible Flight Standards Office, as
appropriate. If sending information directly
to the manager of the certification office,
send it to ATTN: Program Manager,
Continuing Operational Safety, FAA, New
York ACO Branch, 1600 Stewart Avenue,
Suite 410, Westbury, NY 11590; telephone
516–228–7300; fax 516–794–5531. Before
using any approved AMOC, notify your
appropriate principal inspector, or lacking a
principal inspector, the manager of the
responsible Flight Standards Office.
(2) Contacting the Manufacturer: For any
requirement in this AD to obtain instructions
from a manufacturer, the instructions must
be accomplished using a method approved
by the Manager, New York ACO Branch,
FAA; or Transport Canada Civil Aviation
(TCCA); or Bombardier, Inc.’s TCCA Design
Approval Organization (DAO). If approved by
the DAO, the approval must include the
DAO-authorized signature.
(i) Related Information
(1) Refer to Mandatory Continuing
Airworthiness Information (MCAI) TCCA AD
CF–2021–06, dated February 26, 2021, for
related information. This MCAI may be
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found in the AD docket at https://
www.regulations.gov by searching for and
locating Docket No. FAA–2021–0787.
(2) For more information about this AD,
contact Chirayu Gupta, Aerospace Engineer,
Mechanical Systems and Administrative
Services Section, FAA, New York ACO
Branch, 1600 Stewart Avenue, Suite 410,
Westbury, NY 11590; telephone 516–228–
7300; fax 516–794–5531; email 9-avs-nyacocos@faa.gov.
(3) For service information identified in
this AD, contact Bombardier, Inc., 200 CoˆteVertu Road West, Dorval, Que´bec H4S 2A3,
Canada; North America toll-free telephone 1–
866–538–1247 or direct-dial telephone 1–
514–855–2999; email ac.yul@
aero.bombardier.com; internet https://
www.bombardier.com. You may view this
service information at the FAA,
Airworthiness Products Section, Operational
Safety Branch, 2200 South 216th St., Des
Moines, WA. For information on the
availability of this material at the FAA, call
206–231–3195.
Issued on September 9, 2021.
Lance T. Gant,
Director, Compliance & Airworthiness
Division, Aircraft Certification Service.
[FR Doc. 2021–19814 Filed 9–14–21; 8:45 am]
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DEPARTMENT OF LABOR
Employee Benefits Security
Administration
29 CFR Part 2520
RIN 1210–AB97
Annual Reporting and Disclosure
Employee Benefits Security
Administration, Labor.
ACTION: Proposed rule.
AGENCY:
This document contains
proposed amendments to Department of
Labor (DOL) regulations relating to
annual reporting requirements under
Title I of the Employee Retirement
Income Security Act of 1974, as
amended (ERISA). The proposed
amendments contained in this
document would conform these DOL
reporting regulations to proposed
revisions under Title I of ERISA and the
Internal Revenue Code (Code) to the
Form 5500 Annual Return/Report of
Employee Benefit Plan and Form 5500–
SF Short Form Annual Return/Report of
Small Employee Benefit Plan being
published in this issue of the Federal
Register in a separate Notice of
Proposed Forms Revisions (NPFR)
prepared jointly by DOL, the Internal
Revenue Service (IRS), and the Pension
SUMMARY:
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Federal Register / Vol. 86, No. 176 / Wednesday, September 15, 2021 / Proposed Rules
Benefit Guaranty Corporation (PBGC)
(collectively ‘‘Agencies’’). Those
proposed form changes and these
proposed regulatory amendments
primarily implement statutory changes
enacted as part of the Setting Every
Community Up for Retirement
Enhancement Act of 2019 (SECURE
Act). Conforming changes also are being
proposed to the requirements for the
summary annual report. The proposed
regulatory amendments would affect
employee pension and welfare benefit
plans, plan sponsors, administrators,
and service providers to plans subject to
annual reporting requirements under
ERISA and the Code.
DATES:
Comment due date: Comments are
due on or before November 1, 2021.
Proposed applicability dates: If
adopted, the proposed regulatory
amendments to implement the SECURE
Act’s amendment of section 103(g)
would apply to 2021 plan year
reporting. All other proposed regulatory
amendments would apply to reporting
for plan years beginning on or after
January 1, 2022.
ADDRESSES: You may submit written
comments, identified by RIN 1210–
AB97, by one of the following methods:
Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
Mail: Office of Regulations and
Interpretations, Employee Benefits
Security Administration, Room N–5655,
U.S. Department of Labor, 200
Constitution Ave. NW, Washington, DC
20210, Attention: Proposed Revision of
Annual Information Return/Reports RIN
1210–AB97.
Instructions: All submissions must
include the agency name and Regulatory
Identifier Number (RIN) for this
rulemaking. The DOL will share any
comment submitted in response to this
regulatory proposal with the IRS and the
PBGC. To avoid unnecessary
duplication of effort, the Agencies also
will treat public comments submitted in
response to this notice of proposed
rulemaking as public comments on the
Notice of Proposed Forms Revisions to
the extent they include information
relevant to the proposed regulatory
amendments. If you submit comments
electronically, do not submit paper
copies. Comments will be available to
the public, without charge, online at
https://www.regulations.gov and https://
www.dol.gov/agencies/ebsa and at the
Public Disclosure Room, Employee
Benefits Security Administration, Suite
N–1513, 200 Constitution Ave. NW,
Washington, DC 20210.
Warning: Do not include any
personally identifiable or confidential
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A. Legislative and Regulatory Reporting
Framework
Titles I and IV of ERISA and the
Internal Revenue Code (Code), generally
require pension and other employee
benefit plans to file annual returns/
reports concerning, among other things,
the financial condition and operations
of the plan. Filing a Form 5500 Annual
Return/Report of Employee Benefit Plan
(Form 5500) or, if eligible, a Form 5500–
SF Short Form Annual Return/Report of
Small Employee Benefit Plan (Form
5500–SF), together with any required
schedules and attachments (together
‘‘the Form 5500 Annual Return/
Report’’),1 in accordance with their
instructions, generally satisfies these
annual reporting requirements.
ERISA section 103 broadly sets out
annual financial reporting requirements
for employee benefit plans under Title
I of ERISA. The Form 5500 Annual
Return/Report for Title I purposes is
promulgated pursuant to DOL
regulations under the ERISA provisions
authorizing limited exemptions and
simplified reporting and disclosure for
welfare plans under ERISA section
104(a)(3), simplified annual reports
under ERISA section 104(a)(2)(A) for
pension plans that cover fewer than 100
participants, and alternative methods of
compliance for all pension plans under
ERISA section 110. The Form 5500
Annual Return/Report, and related
instructions and regulations, are also
promulgated under the DOL’s general
regulatory authority in ERISA sections
109 and 505.
In addition to being an important
disclosure document for plan
participants and beneficiaries, the Form
5500 Annual Return/Report is a critical
enforcement, compliance, and research
tool for the DOL, the Internal Revenue
Service (IRS), and the Pension Benefit
Guaranty Corporation (PBGC) (together
‘‘Agencies’’). The Form 5500 Annual
Return/Report is also an important
source of information and data for use
by other Federal agencies, Congress, and
the private sector in assessing employee
benefit, tax, and economic trends and
policies. In the United States, there are
an estimated 2.5 million health plans,
an estimated 885,000 other welfare
plans, and nearly 772,000 private
pension plans. These plans cover
roughly 154 million private sector
workers, retirees, and dependents, and
have estimated assets of $12.2 trillion.
The Form 5500 Annual Return/Report
serves as the principal source of
information and data available to the
Agencies concerning the operations,
funding, and investments of
approximately 843,000 pension and
welfare benefit plans that file.2
Accordingly, the Form 5500 Annual
Return/Report is essential to each
Agency’s enforcement, research, and
policy formulation programs, as well for
the regulated community, which makes
increasing use of the information as
more capabilities develop to interact
with the data electronically. The data is
also an important source of information
and data for use by other Federal
agencies, Congress, and the private
sector in assessing employee benefit,
tax, and economic trends and policies.
The Form 5500 Annual Return/Report
also serves as the primary means for
monitoring the operations of plans by
participating employers in multiple
employer plans and other group
arrangements, plan participants and
beneficiaries, and by the public.
The forms, schedules, and
instructions, also serve to help the DOL
carry out its statutory directives under
sections 506 and 513 of ERISA.
Specifically, section 506(a) of ERISA
authorizes the Secretary of Labor to
coordinate with other Agencies to avoid
unnecessary expense and duplication of
functions among Government agencies.
The Agencies designed the Form 5500
1 References to the ‘‘Form 5500 Annual Return/
Report’’ may include depending on the context, the
Form 5500, the Form 5500–SF, and the Form 5500–
EZ, Annual Return of One Participant (Owners and
Their Spouses) Retirement Plan (Form 5500–EZ).
The Form 5500–EZ is a return that is required only
to satisfy the Code. Form 5500–EZ filers are not
subject to Title I of ERISA.
2 Estimates are based on 2019 Form 5500 filings.
DOL notes that welfare plans with less than 100
participants that are unfunded or insured (do not
hold assets in trust) are generally exempt from filing
a Form 5500. Therefore, while DOL estimates there
are 2.5 million health plans and 885,000 non-health
welfare plans, respectively only 69,000 and 91,000
of these plans filed a 2019 Form 5500.
business information that you do not
want publicly disclosed. Comments are
public records posted on the internet as
received and can be retrieved by most
internet search engines.
FOR FURTHER INFORMATION CONTACT:
Janet Song or Colleen Brisport Sequeda,
Office of Regulations and
Interpretations, Employee Benefits
Security Administration, U.S.
Department of Labor, (202) 693–8500
(this is not a toll-free number), for
questions related to these proposed
amendments to the DOL regulations.
Customer service information:
Individuals interested in obtaining
information from the DOL concerning
Title I of ERISA may call the EBSA TollFree Hotline at 1–866–444–EBSA (3272)
or visit the DOL’s website
(www.dol.gov/agencies/ebsa).
SUPPLEMENTARY INFORMATION:
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Federal Register / Vol. 86, No. 176 / Wednesday, September 15, 2021 / Proposed Rules
Annual Return/Report so that it could
be used simultaneously to satisfy annual
return/report requirements to the
Agencies, and to help the Agencies
more effectively and efficiently (from
both the public’s and the Agencies’
perspectives) provide oversight, assist
with compliance, and enforce the
provisions of ERISA and the Code.
Section 506(b) gives the DOL
responsibility for detecting and
investigating civil and criminal
violations of Title I of ERISA. The Form
5500 Annual Return/Report is one of the
important tools the DOL uses to carry
out its responsibility to detect and
investigate such violations. Section
513(b)(2) of ERISA specifically directs
DOL to undertake research studies
relating to pension plans, including but
not limited to (A) the effects of this
subchapter upon the provisions and
costs of pension plans, (B) the role of
private pensions in meeting the
economic security needs of the nation,
and (C) the operation of private pension
plans including types and levels of
benefits, degree of reciprocity or
portability, and financial and actuarial
characteristics and practices, and
methods of encouraging the growth of
the private pension system.
Recent legislative and regulatory
changes affecting multiple employer
pension plans (MEPs) and similar
arrangements are spurring the current
need to update the Form 5500 Annual
Return/Report and related regulations.
Specifically, as discussed in more detail
in the NPFR, the Setting Every
Community Up for Retirement
Enhancement Act of 2019 (SECURE
Act),3 included various provisions
designed to improve the private
employer-based retirement system.
Among other things, the SECURE Act
included changes designed to simplify
retirement plan administration for
certain eligible defined contribution
plans and added provisions to the Code
relating to MEPs, including MEPs with
pooled plan providers, and adopted
provisions under Title I of ERISA that
designated these MEPs with pooled plan
providers as pooled employer plans.
The NPFR published concurrently in
this issue of the Federal Register sets
forth a discussion of form and
instruction changes that relate to these
proposed regulations. These proposed
revisions to the DOL’s reporting
regulations are needed for the DOL to
implement the forms revisions proposed
in the three-agency (DOL, IRS, and
3 The SECURE Act was enacted on December 20,
2019, as Division O of the Further Consolidated
Appropriations Act, 2020 (Pub. L. 116–94).
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PBGC) Notice of Proposed Forms
Revisions (NPFR).
B. Discussion of the Proposed Revisions
to 29 CFR Part 2520
1. Section 2520.103–1(a)(2)
Section 2520.103–1 generally
describes the content of the Form 5500
Annual Return/Report as a limited
exemption and alternative method of
compliance for ERISA-covered
employee benefit plans to satisfy annual
reporting requirements under Title I.
The proposal adds a reference to
‘‘section 202 of the SECURE Act’’ to
paragraph (a)(2) of § 2520.103–1 to set
forth the authority for prescribing a
consolidated report alternative method
of compliance for certain groups of
defined contribution retirement plans
under proposed §§ 2520.103–14 and
2520.104–51, discussed below, relating
to defined contribution group (DCG)
reporting arrangements.
2. Sections 2520.103–1(b)(1) and
2520.103–1(c)(1)
Paragraphs (b) and (c) of § 2520.103–
1 generally describes the contents of the
annual report for large plans (generally
those with 100 or more participants)
and small plans (generally those with
fewer than 100 participants). The
proposal would amend § 2520.103–
1(b)(1) to add a proposed multiple
employer plan (MEP) schedule (titled
Schedule MEP) to the list of schedules
and attachments required to be included
with the Form 5500 for large MEPs. A
parallel update is being proposed to
§ 2520.103–1(c)(1) to add the Schedule
MEP as a schedule that small MEPs
must include with the Form 5500.4
2. Section 2520.103–1(c)(2)(ii)
Paragraph (c) of § 2520.103–1
describes the conditions under which
an eligible small plan (generally with
fewer than 100 participants) may file the
Form 5500–SF. The proposal would add
§ 2520.103–1(c)(2)(ii)(F) to state that
MEPs, which include pooled employer
plans, as well as MEPs described in the
DOL’s regulation at § 2510.3–55
(association retirement plans and
professional employer organization
(PEO) MEPs), are not permitted to use
the Form 5500–SF regardless of whether
the plan meets the size and other
requirements for filing a Form 5500–SF.
A similar prohibition applies under the
current regulation to MEWA plans
required to file the Form M–1 and to
multiemployer plans. The proposal
would also add a new § 2520.103–
1(c)(2)(ii)(G) to provide a similar
4 See NPFR for detailed discussion of the
proposed Schedule MEP and Schedule DCG.
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prohibition on filing the Form 5500–SF
for DCG reporting arrangements. As
described below in proposed
§§ 2510.103–14 and 104–51, DCG
reporting arrangements must file the
aggregated annual report for
participating plans using the Form 5500,
including the schedules and
attachments that are generally required
for large retirement plans and Direct
Filing Entities (DFEs) as well as a
Schedule DCG (Individual Plan
Information) for each plan whose
reporting obligation is being satisfied by
the DCG filing.
3. Amendments to § 2520.103–10
Section 2520.103–10 identifies
financial schedules that are required to
be included as part of the Form 5500
Annual Return/Report depending on the
characteristics and operations of the
plan. The listed schedules include the
‘‘Schedule of Assets Held for
Investment’’ and ‘‘Schedule of Assets
Acquired and Disposed within the Plan
Year.’’ Paragraph (b) of § 2520.103–10
sets forth the content requirements for
these schedules. The NPFR being
published concurrently with this NPRM
includes proposed additions and
clarifications to the content of the
‘‘Schedules of Assets Held for
Investment’’ and the ‘‘Schedule of
Assets Acquired and Disposed within
the Plan Year’’ that are designed to
improve the consistency, transparency,
and usability of the information
reported regarding plan investments.
The proposed changes to the contents
and format of the schedule are described
in detail in the NPFR and also set forth
in the proposed amendment to the
regulatory text in paragraph (b)(1)(i) of
§ 2520.103–10. Currently, filers
typically file the schedule as a PDF. Of
particular note, the proposal specifies
that the schedules would have to be
filed electronically through the ERISA
Filing Acceptance System II (EFAST2)
electronic filing system in a structured
format in accordance with the EFAST2
requirements and the Form 5500’s
instructions.
4. New §§ 2520.103–14, 2520.104–51
and 2520.104a–9—Consolidated Form
5500 as an Alternative Method of
Compliance for Plans Participating in a
DCG Reporting Arrangement
The proposal would amend the ERISA
annual reporting regulations to
implement the SECURE Act section 202
directive to the Secretary of Labor to
jointly with the Secretary of the
Treasury provide for a single, aggregated
Form 5500 option that would satisfy the
annual reporting obligations for the
defined contribution pension plans
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participating in the group. Under the
proposal, several conditions relating to
the DCG reporting arrangement, the
participating plans, and the content of
the Form 5500 filing would have to be
satisfied before the aggregated filing
would satisfy the annual reporting
requirements of the separate
participating plans. The NPFR describes
those conditions in detail. The
conditions also are set forth in a
proposed new 29 CFR 2520.103–14 and
2520.104–51.5
With respect to the content
requirements for a DCG consolidated
Form 5500 filing, proposed paragraph
(b) of § 2520.103–14 provides that the
consolidated DCG report would be
required to include a Form 5500
‘‘Annual Return/Report of Employee
Benefit Plan’’ and various statements or
schedules based on the characteristics
and operations of the participating
plans, including Schedule A (Insurance
Information), Schedule C (Service
Provider Information), Schedule D
(DFE/Participating Plan Information),
Schedule G (Financial Transaction
Schedules), Schedule H (Financial
Information), Schedule R (Retirement
Plan Information), Schedule DCG
(Individual Plan Information),6
supplemental schedules referred to in
29 CFR 2520.103–10 with information
aggregated for all the participating
plans, the report and opinion of an
independent qualified public
accountant (IQPA) for the DCG trust,
and an IQPA report and opinion for any
individual participating plans with 100
or more participants that would be
subject to the audit requirement if filing
a separate Form 5500. This would
include separate financial statements, if
such financial statements are prepared
in order for the independent qualified
public accountant to form the required
opinions on the DCG trust required
under the proposal and the individual
participating large plans required by
section 103(a)(3)(A) of the Act and
§ 2520.103–2(b)(5).7
5 The proposal is modeled to some extent on the
existing annual reporting rules for fully insured
welfare benefit plans that participate in a group
insurance arrangement (GIA) and for investment
entities that file as a Direct Filing Entity. See 29
CFR 2520.103–2, 2520.103–12, 2520.104–21, and
2520.104–43.
6 See NPFR for detailed description of the
proposed Schedule DCG. A separate Schedule DCG
would be required for each individual participating
plan. In the case of an existing plan that joins a DCG
filing arrangement, the identifying information
regarding the plan and employer/plan sponsor that
was used in prior filings for the plan must be used
to identify the plan and the employer/plan sponsor
on the Schedule DCG for the plan.
7 See NPFR for a more detailed discussion of the
content requirements for DCG Form 5500.
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Proposed paragraph (d) would make
clear that the DCG reporting
arrangement must comply with the
electronic filing requirements that apply
to all plan filers and direct filing entities
(DFE). See § 2520.104a–2 and the
instructions for the Form 5500 Annual
Return/Report for electronic filing
requirements. In addition, the proposed
paragraph emphasizes that the common
plan administrator of all the
participating plans that is filing the
consolidated Form 5500 must maintain
an original copy, with all required
signatures, as part of its records (which
also would be treated as records of each
of the participating plans).
The proposed new § 2520.104–51
would authorize the DCG consolidated
report as an alternative method of
compliance under ERISA section 110 for
defined contribution pension plans that
participate in DCG reporting
arrangements. Specifically, filing of a
complete and accurate consolidated
Form 5500 for the DCG reporting
arrangement would relieve the
administrator of each individual
participating defined contribution
pension plan that meets the
requirements of paragraph (b) of
§ 2520.104–51 of the obligation to file an
individual annual report under Title I of
ERISA. This alternative method of
compliance would be available only for
a defined contribution pension plan in
a plan year in which (i) such plan
participates in a DCG reporting
arrangement that meets the conditions
of paragraph (c) of this proposed
§ 2520.104–51; and (ii) the DCG
reporting arrangement has filed with the
Secretary of Labor in accordance with
proposed § 2520.104a–9, a complete and
accurate consolidated annual report that
meets the content requirements under
proposed § 2520.103–14. To make clear
that the DCG reporting arrangement is a
direct filing entity (DFE) that is
submitting the aggregated Form 5500 on
behalf of the participating plans,
proposed § 2520.104–51(b)(2) provides
that that the term ‘‘DCG reporting
arrangement’’ shall be used in place of
the term ‘‘plan’’ where it appears in
§§ 2520.103–3, 2520.103–4, 2520.103–6,
2520.103–8, 2520.103–9, and 2520.103–
10 and elsewhere in subparts C and D
of 29 CFR part 2520, as applicable.
Proposed § 2520.104–51 would also
provide that the reporting relief for
individual plans would apply only if all
plans participating in the DCG reporting
arrangement (i) are individual account
plans or defined contribution plans; (ii)
have—(A) the same trustee (‘‘common
trustee’’) and same trust holding the
assets of the participating plans
(‘‘common trust’’); (B) the same one or
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51287
more named fiduciaries, except the
proposal would allow for the employer/
plan sponsor to be a named fiduciary of
each employer’s own plan provided that
the other named fiduciaries under the
plans are the same and common to all
plans (‘‘common named fiduciaries’’);
(C) a designated administrator that is the
same plan administrator for all the
participating plans (‘‘common plan
administrator’’); (D) plan years
beginning on the same date (‘‘common
plan year’’); (iii) provide the same
investments or investment options to
participants and beneficiaries
(‘‘common investments or investment
options’’); (iv) have the investment
assets held in a single trust of the DCG
reporting arrangement; (v) not hold any
employer securities; (vi) be 100%
invested in certain secure, easy to value
assets that meet the definition of
‘‘eligible plan assets’’ (see the
instructions for line 6a of the Form
5500–SF), such as mutual fund shares,
investment contracts with insurance
companies and banks valued at least
annually, publicly traded securities held
by a registered broker dealer, cash and
cash equivalents, and plan loans to
participants; (vii) be audited by an IQPA
or be eligible for the waiver of the
annual examination and report of an
IQPA under 29 CFR 2520.104–46, but
not by reason of enhanced bonding; and
(viii) may not be a multiemployer plan
or a MEP (including association
retirement plans, pooled employer plans
and professional employer organization
plans (PEO plans)).
Proposed § 2520.104–51 would also
expressly state that the alternative
method of complying with the Title I
annual reporting requirements would
not relieve the administrator of the
individual participating plans from any
other requirement of Title I of the Act,
including, for example, the provisions
that require that plan administrators
furnish copies of the summary plan
description to participants and
beneficiaries (ERISA section 104(b)(1)),
furnish certain documents to the
Secretary of Labor upon request (ERISA
section 104(a)(6)), and furnish a copy of
a Summary Annual Report (SAR) to
participants and beneficiaries of the
plan (ERISA section 104(b)(3)).
Proposed § 2520.104–51(c)(2)(iii)
provides that all plans participating in
a DCG reporting arrangement must have
a designated common plan
administrator that is the same plan
administrator for all the participating
plans. The SECURE Act was not explicit
on whether this was intended to require
the same person to be the plan
administrator under ERISA section
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3(16)(A) for the purpose of meeting the
annual reporting requirements for each
participating plan or was intended to
require that the same person be the plan
administrator of each participating plan
for all purposes under ERISA. The
proposal requires that the same person
sign the DCG filing as the plan
administrator for each participating
plan. The Department solicits comments
on whether the final rule should address
whether individual plans participating
in a DCG may have a separate statutory
administrator responsible for other
duties ERISA assigns to the plan
administrator (e.g., distribution of
summary plan descriptions).
Finally, proposed new § 2520.104a–9
provides that, as would be the case for
all of the participating plans in the DCG
reporting arrangement if they were filing
individually, the aggregated Form 5500
for the DCG is due no later than the end
of the 7th month after the end of the
common plan year that all the plans
must have in order to participate in a
DCG reporting arrangement pursuant to
the requirement in section 202 of the
SECURE Act and the proposed
regulation at § 2520.104–51. Because the
DCG filing is an alternative to each
participating plan filing its own Form
5500, that would mean that each plan
would have to submit its own IRS Form
5558 to extend the plan’s due date, and,
as a consequence, extend the due date
for the DCG filing. A plan that did not
submit a timely Form 5558 and that
participated in a DCG filing that was
submitted after the 7th month normal
due date would be treated as having
filed late. Public comments are
specifically solicited on how the filing
extension process should be structured
for DCGs, including whether DCG
reporting arrangements should be able
to file a single Form 5558 to obtain an
extension for filing the DCG
consolidated report on behalf of the
participating plans as an alternative to
having each individual plan file a Form
5558 for there to be an extension for the
reporting group as a whole.8
As noted above, section 110 of ERISA
permits the DOL to prescribe for
pension plans alternative methods of
complying with any of the reporting and
disclosure requirements if the Secretary
finds that: (1) The use of the alternative
method is consistent with the purposes
of ERISA and it provides adequate
disclosure to plan participants and
beneficiaries, and adequate reporting to
the Secretary; (2) application of the
8 Under the somewhat similar consolidated
reporting provisions applicable to GIAs, the GIA is
permitted to use the IRS Form 5558 to apply for an
extension of time the GIA consolidated report on
behalf of the plans participating in the GIA.
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statutory reporting and disclosure
requirements would increase costs to
the plan or impose unreasonable
administrative burdens with respect to
the operation of the plan; and (3) the
application of the statutory reporting
and disclosure requirements would be
adverse to the interests of plan
participants in the aggregate. The DOL
believes that the proposal on DCG
reporting arrangements meets those
conditions, especially given the
statutory direction in the SECURE Act
to create such a reporting option, but
also specifically solicits comments on
the required findings under section 110.
As also discussed in the NPFR, the
DOL expects that cost savings for plans
relying on a DCG filing compared to
plans filing separately will generally
require the DCG to collectively exceed
an aggregate participant count of 100
participants. In other words, the DOL
does not expect a DCG filing to provide
meaningful cost savings for plans
compared to filing their own annual
report in the case of DCG arrangements
with an aggregate participant count of
under 100 participants. Rather, we
expect in such cases that the individual
plans would likely qualify for filing the
Form 5500–SF and that they will likely
find it more cost effective to file their
own separate Form 5500–SF.
Accordingly, this proposal does not
include an option under which such a
‘‘small’’ DCG could file as a small plan.
Nonetheless, the DOL solicits comments
regarding the merit of those
expectations and assumption and
whether the rules should provide a
simplified reporting option for ‘‘small’’
DCG reporting arrangements.
5. Section 2520.104b–10
Section 2520.104b–10 sets forth the
requirements for the Summary Annual
Report (SAR) appendix and prescribes
formats for such reports. The DOL
proposes updating this section to reflect
the new filing option for DCG reporting
arrangements and the addition of the
new Schedule MEP and Schedule DCG
to the 5500 Annual Report/Return. The
proposal includes adding to the existing
model language in the DOL’s regulation
new text that plans would use to
provide a brief description of the plan
based on the plan characteristic codes
listed for the plan on the Form 5500,
including whether it is a defined
contribution or defined benefit plan,
and whether the plan is a pooled
employer plan, another type of multiple
employer plan, a single employer plan,
or a plan participating in a DCG
reporting arrangement, respectively. The
proposed new regulatory language also
includes text for plans to use that states
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a copy of the Schedule DCG and the
Schedule MEP are available on request,
as applicable. For plans participating in
a DCG reporting arrangement, the new
language advises that a statement of the
aggregate assets and liabilities of all the
plans in the DCG reporting arrangement
and accompanying notes, a statement of
aggregate income and expenses of the
DCG reporting arrangement and
accompanying notes, and a copy of the
audit report filed for the trust of the
DCG reporting arrangement are available
on request. Finally, the new SAR
language would state that a copy of the
Form 5500 annual report filed for the
plan or DCG is available online from
EBSA via a DOL website at
www.efast.dol.gov.
C. Applicability Dates
If adopted, the proposed amendments
to implement the SECURE Act’s
amendment of section 103(g) would
apply to reporting for plan years
beginning on or after January 1, 2021.
The other proposed rules, including
those under section 202 of the SECURE
Act and structuring the schedules of
assets held for investment, generally
would apply to reporting for plan years
beginning on or after January 1, 2022.
The NPFR published concurrently in
this issue of the Federal Register sets
forth a comprehensive discussion of
form and instruction changes that relate
to these proposed regulations.
D. Regulatory Impact Analysis
The following is a discussion of the
DOL’s examination of the effects of this
rule as required by Executive Order
12866,9 Executive Order 13563,10 the
Paperwork Reduction Act of 1995,11 the
Regulatory Flexibility Act,12 section 202
of the Unfunded Mandates Reform Act
of 1995,13 Executive Order 13132,14 and
the Congressional Review Act.15
1.1. Executive Orders
Executive Orders 12866 and 13563
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, select regulatory approaches
that maximize net benefits (including
potential economic, environmental,
public health and safety effects;
distributive impacts; and equity).
Executive Order 13563 emphasizes the
9 Regulatory Planning and Review, 58 FR 51735
(Oct. 4, 1993).
10 Improving Regulation and Regulatory Review,
76 FR 3821 (Jan. 18, 2011).
11 44 U.S.C. 3506(c)(2)(A) (1995).
12 5 U.S.C. 601 et seq. (1980).
13 2 U.S.C. 1501 et seq. (1995).
14 Federalism, 64 FR 153 (Aug. 4, 1999).
15 5 U.S.C. 804(2) (1996).
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importance of quantifying costs and
benefits, reducing costs, harmonizing
rules, and promoting flexibility.
Under Executive Order 12866,
‘‘significant’’ regulatory actions are
subject to review by the Office of
Management and Budget (OMB).16
Section 3(f) of the Executive order
defines a ‘‘significant regulatory action’’
as an action that is likely to result in a
rule (1) having an annual effect on the
economy of $100 million or more, or
adversely and materially affecting a
sector of the economy, productivity,
competition, jobs, the environment,
public health or safety, or state, local, or
tribal governments or communities (also
referred to as ‘‘economically
significant’’); (2) creating a serious
inconsistency or otherwise interfering
with an action taken or planned by
another agency; (3) materially altering
the budgetary impacts of entitlement
grants, user fees, or loan programs or the
rights and obligations of recipients
thereof; or (4) raising novel legal or
policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in the Executive
order.
A full regulatory impact analysis must
be prepared for major rules with
economically significant effects (for
example, $100 million or more in any 1
year), and the Office of Management and
Budget (OMB) reviews ‘‘significant’’
regulatory actions. It has been
determined that this rule is not
economically significant within the
meaning of section 3(f)(1) of the
Executive order. Pursuant to the terms
of the Executive order, OMB has
determined, however, that this action is
‘‘significant’’ within the meaning of
section 3(f)(4) of the Executive order.
Therefore, the DOL has provided an
assessment of the potential costs,
benefits, and transfers associated with
this proposed rule. In accordance with
the provisions of Executive Order
12866, this proposed rule was reviewed
by OMB. Pursuant to the Congressional
Review Act, OMB has designated this
proposed rule as not a ‘‘major rule,’’ as
defined by 5 U.S.C. 804(2).
1.2. Introduction and Need for
Regulation
The Form 5500 Annual Return/Report
is the principal source of information
and data available to the Agencies
concerning the operations, funding, and
investments of pension and welfare
benefit plans covered by ERISA and the
Code. Accordingly, the Form 5500
Annual Return/Report is essential to
16 Regulatory Planning and Review, 58 FR 51735
(Oct. 4, 1993).
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each Agency’s enforcement, research,
and policy formulation programs and is
a source of information and data for use
by other Federal agencies, Congress, and
the private sector in assessing employee
benefit, tax, and economic trends and
policies. The Form 5500 Annual Return/
Report also serves as the primary means
by which the operations of plans can be
monitored by plan participants and
beneficiaries and the general public.
As discussed earlier in this document
and the related NPFR publishing
concurrently with this proposal, the
SECURE Act included various
provisions designed to improve the
private employer-based retirement
system by seeking to make it easier for
businesses to offer retirement plans, and
for individuals to save for retirement,
through the creation of new plan
structure and reporting options. These
new structures will require new annual
reporting, which has resulted in the
need to update the Form 5500 Annual
Return/Report and related regulations.
Pooled Employer Plans and Other
MEPs: The SECURE Act amended
ERISA and the Code to address certain
MEPs administered by pooled plan
providers. Under section 3(43) of ERISA
such plans are called pooled employer
plans. The proposed regulation would
add a new Schedule MEP to the Form
5500 annual report to collect
information on employers participating
in MEPs and to gather compliance
information on pooled employer plans.
Some of the information on the
proposed Schedule MEP is currently
reported on the Form 5500 Annual
Return/Report by MEPs, but it is
reported on a nonstandard attachment.
Only an image or picture of the
attachment is available through the
EFAST2 public disclosure function.
Making the information data-capturable
by including it on the proposed
Schedule MEP would improve the
uniformity and accuracy of the data and
increase its usability.
‘‘Defined Contribution Group (DCG)
Reporting Arrangement’’: Section 202 of
the SECURE Act directs the Secretary of
the Treasury and the Secretary of Labor
(together ‘‘Secretaries’’) to modify the
returns required under section 6058 of
the Code and the reports required by
section 104 of the ERISA, respectively,
so that all members of a group of
defined contribution individual account
plans that meet certain conditions may
file a single aggregated annual return/
report satisfying the requirements of
both such sections. The SECURE Act
provides that to constitute an eligible
group of plans, all of the plans in the
group must be either individual account
plans or defined contribution plans,
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51289
must have the same trustee, the same
named fiduciaries, the same
administrator, plans years beginning on
the same date, and must provide the
same investments or investment options
to participants and beneficiaries. The
proposed rule would establish the
conditions, including the SECURE Act
conditions, under which filing a single,
aggregated Form 5500 Annual Return/
Report by a ‘‘defined contribution group
(DCG) reporting arrangement’’ would
satisfy the individual, annual reporting
obligations for each of the plans
participating in the group. As discussed
in more detail in the NPFR, the
proposed rule also includes adding a
new Schedule DCG (Individual Plan
Information) to provide individual planlevel information for plans covered by a
DCG consolidated Form 5500 filing.
In addition, although not directly
implementing SECURE Act changes,
some of the changes being proposed in
this document are intended to ensure
that annual reporting by pooled
employer plans, other MEPs, and DCGs
provides appropriate financial and
operational transparency and
accountability. Certain proposed
changes would benefit workers in plans
other than pooled employer plans and
DCGs would apply more broadly, e.g.,
improving the quality of financial
reporting. Other changes being proposed
relate to efforts to improve compliance
and oversight with respect to the Code
issues and defined benefit plans subject
to the PBGC insurance program under
Title IV of ERISA.
Schedule H, Schedule of Assets Held
for Investment, and Schedule of Assets
Acquired and Disposed of Within the
Year: As discussed in the NPFR, the
Agencies are proposing structural, data
element, and instruction changes to the
current Schedule H, Line 4i Schedules
of Assets. Current Line 4i would be
broken into two items to identify the
existing schedules separately: Line 4i(1)
would identify the Schedule of Assets
Held for Investment at End of Year, and
Line 4i(2) would identify the Schedule
of Assets Acquired and Disposed of
Within Year (together ‘‘Schedules of
Assets’’). The current regulations and
instructions require most large plans
and DFEs to attach the Schedules of
Assets to the Form 5500, Schedule H.17
17 In 2019, the plans required to file the Form
5500 included any benefit plan or a welfare benefit
plan that covered 100 or more participants as of the
beginning of the plan year and a Form 5500 filed
for a master trust investment account (MTIA),
common/collective trust (CCT), pooled separate
account (PSA), 103–12 investment entity (103–12
IE), or GIA. However, fully insured, unfunded, or
a combination of unfunded/insured welfare plans
and fully insured pension plans that meet the
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They are the only place on the Form
5500 Annual Return/Report where plans
are required to list individual plan
investments identified by major
characteristics, such as issue, maturity
date, interest rate, cost and current
value. As such, they are the only part of
the Form 5500 Annual Return/Report
useful to evaluate the year-to-year
performance, liquidity, and risk
characteristics of a plan’s individual
investments.
The current reported information
suffers from several shortcomings. First,
filers currently submit this information
as non-standard attachments to filers’
electronic Form 5500 Annual Return/
Report filings, so only an image or
picture of the attachments is available
through the EFAST2 public disclosure
function. A survey panel of plan
sponsors, service providers,
representatives of plan participants, and
researchers was conducted in 2014 as
part of a Government Accountability
Office (GAO) report; 11 of 31
respondents indicated that having no
standard reporting format was a very or
extremely significant challenge. GAO
reported that attachments to the form
may be as long as 400 pages, making it
particularly difficult for users to find
information.18 Second, filers do not
always provide the Line 4i Schedules of
Assets in the same place in each annual
return/report. For example, the Line 4i
Schedules of Assets are often
incorporated in the larger audit report of
the plan’s IQPA that itself is filed as a
nonstandard attachment to the Form
5500 Annual Return/Report. Third, the
schedules do not require a standardized
method for identifying and describing
assets on the Line 4i Schedules.
Different filings may identify the same
stock or mutual fund with various
different names or abbreviations. In the
aforementioned GAO survey, most
researchers indicated that a lack of a
standard reporting format or unique
identifier for plan assets was a major
challenge, while representatives of plan
sponsors and service providers did
not.19
Data capturability of the Line 4i
Schedules of Assets would make it
much easier and more efficient to
monitor plan holdings as computer
requirements of 29 CFR 2520.104–44 are exempt. If
a Schedule I was filed for the plan for the 2018 plan
year or a Form 5500–SF and the plan covered fewer
than 121 participants as of the beginning of the
2019 plan year, the Schedule I may be completed
instead of a Schedule H. Plans that file a Form
5500–SF for the 2019 plan year are not required to
file a Schedule H for that year.
18 Private Pensions: Targeted Revisions Could
Improve Usefulness of Form 5500 Information, at
17.
19 Id.
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programs can read and analyze the data
much more efficiently. Currently,
entities expend considerable resources
collecting the data and presenting it in
a usable format, to which they then sell
access. Making the information data
capturable at the submission stage of the
process would be more cost effective as
it removes the need for a second entity
to gather the information, and allow
more entities access to the data at a
lower overall cost. The DOL’s Office of
Inspector General (‘‘DOL–OIG’’) and the
GAO have both recommended that
EBSA implement changes to create more
detailed and structured Schedules of
Assets.20 It would also allow the
Agencies and the interested public,
including the participants and
beneficiaries in impacted plans, to
better monitor a larger number of
pension plans and their asset
allocations. A number of private entities
have been using the information
reported on Line 4i Schedule of Assets
Held for Investment in larger pension
plan Form 5500 Annual Return/Report
filings into data-capturable information
and have been using it to compare plan
investment menus and investment
allocations. The DOL believes this
development is evidence that plans
sponsors and their service providers are
interested in having access to these data.
For example, one company that uses the
Schedules of Assets data sent a letter to
DOL stating that they believe that the
information on the Form 5500 Annual
Return/Report is very useful in ‘‘helping
the agency understand the performance
and design of retirement plans in the
market place’’ and that the data
availability fosters ‘‘third party data
collection and evaluation efforts that in
turn help protect retirement plan
participants.’’ 21 Plan sponsors can use
this information to see better how their
investment menus compare to similarly
situated plans and service providers use
this information to identify plans with
underperforming investments in order
to attract new business. This can lead to
more competition and improved plan
performance, which would ultimately
20 See EBSA Needs to Provide Additional
Guidance and Oversight to ERISA Plans Holding
Hard-to-Value Alternative Investments at 17,
September 30, 2013. https://www.oig.dol.gov/
public/reports/oa/2013/09-13-001-12-121.pdf;
Private Pensions: Targeted Revisions Could
Improve Usefulness of Form 5500 Information, at
37. June 5, 2014. https://www.gao.gov/products/
gao-14-441.
21 See August 23, 2010 Comment Letter from
Ryan Alfred, President, BrightScope, Inc. Re:
Proposed Extension of Information Collection, Form
5500 https://www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=201009-1210-002).
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benefit plan participants and
beneficiaries.
Defined Benefit Pension Plan/ERISA
Title IV Additions: The Form 5500
collects information from defined
benefit pension plans in Schedules MB,
SB, and R. The PBGC has determined
that it needs more detail in these
schedules accurately to project defined
benefit pension plan and PBGC
insurance program liabilities. The
PBGC’s proposed changes to the
information required to be reported by
PBGC-insured defined benefit plans
would remedy the deficiencies of the
current Form 5500 filings and better
protect participants. There are 23,371
single employer defined benefit plans
and 1,373 multiemployer defined
benefit plans that are covered by the
PBGC and would be impacted by these
changes.22
Internal Revenue Code Compliance
Additions: Prior to 2009, Schedule E,
ESOP Annual Information, Schedule P,
Annual Return of Fiduciary of
Employee Benefit Trust, and Schedule
T, Qualified Pension Plan Coverage
Information, were required as part of the
annual return under section 6058(a) of
the Code and associated regulations, but
they were not information collections of
the DOL or the PBGC. Beginning in
2009, DOL mandated electronic filing of
Form 5500, Annual Return/Report of
Employee Benefit Plan, and Form 5500–
SF, Short Form Annual Return/Report
of Small Employee Benefit Plan. At that
time limitations on the IRS’ authority to
require electronic filing of annual
returns resulted in the removal of the
‘‘IRS-only’’ schedules from the Form
5500 filing requirements. The lack of
information from these schedules has
negatively impacted the IRS’s ability to
focus effectively on specific factors of
noncompliance when selecting
retirement plans for examination. Rather
than reinstating the Schedules E, P, and
T, the IRS is proposing to add new
questions to the 2022 Form 5500
designed to assist the IRS in identifying
plans that are non-compliant relating to
Code section 410(b) coverage, Code
section 401(a)(4) non-discrimination,
and Code section 401(k) nondiscrimination testing. Additionally,
IRS is proposing to add a question that
would help it identify whether adopters
of pre-approved plans have been
updated timely for changes in the law.
Affected Entities
Major portions of this proposal relate
to SECURE Act statutory changes that
22 PGBC 2018 Pension Insurance Data Tables.
https://www.pbgc.gov/sites/default/files/2018_
pension_data_tables.pdf.
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(1) recognized a new type of multiple
employer plan under Title I of ERISA
called pooled employer plans; and (2)
called for the Secretaries to establish a
new consolidated annual report for
certain groups of defined contribution
pension plans (herein called DCG
reporting arrangements). The SECURE
Act amendments first authorized pooled
employer plans to begin operating
beginning on January 1, 2021; even early
adopted pooled employer plans
generally will not file a Form 5500
before July 2022. Similarly, DCG
reporting arrangements are a new filing
option starting with the 2022 plan year;
such consolidated filings will not begin
until July 2023. Thus, there is no
historical Form 5500 information that
the DOL can use reliably to evaluate the
number of affected entities. As a result,
there is significant uncertainty regarding
the DOL’s ability to measure costs and
benefits that may result from this
proposal. The DOL nonetheless is
presenting below an overview of
potentially affected entities and an
approach to evaluating the possible
impacts of this proposal. In evaluating
costs and benefits, the DOL took
account of the fact that various types of
plans could be affected by more than
one proposed revision. DOL is also
soliciting data relevant to an evaluation
of costs and benefits and comments on
alternative methodologies and
assumptions for evaluating the costs and
benefits.
Defined Contribution Pension Plans:
In 2018, there were 675,007 defined
contribution plans with 105.8 million
total participants and 83.4 million
active participants. Plans with fewer
than 100 total participants (small plans)
account for 87.4 percent of plans.23
Defined Contribution Group (DCG)
Reporting Arrangement: As this is a new
type of annual reporting method, the
DOL does not have data on how many
DCGs would be created nor the number
of plans that would choose to satisfy
their individual filing obligations by
meeting the requirements for being part
of a DCG, including the filing of a
consolidated Form 5500 Annual Return/
Report by the common plan
23 Employee Benefits Security Administration.
‘‘Private Pension Plan Bulletin, Abstract of 2018
Form 5500 Annual Report.’’ (2020). The 2018 Form
5500 data set is the most recent available because
Form 5500 filings for the 2018 reporting year
generally are not required to be filed for calendar
year plans until July through October of 2019, and
the deadline for fiscal year plans may extend well
into 2020. The User Guide for the 2018 Form 5500
Private Pension Plan Research File includes a
discussion of the creation of the annual data set and
timing of data extraction. See www.dol.gov/sites/
dolgov/files/EBSA/researchers/data/retirement/
pension-user-guide-2018.pdf (Accessed July 21,
2021).
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17:03 Sep 14, 2021
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administrator. We note that in 2018
there were 499,234 small defined
contribution plans that reported the
plan characteristic code 3D in their
Form 5500–SF to indicate that they are
intended to operate as pre-approved
plans under sections 401, 403(a), and
4975(e)(7) of the Code. The DOL
assumes that a DCG reporting option
may suit their existing plan and
business models and that, therefore,
some fraction of these plans may find it
advantageous to join a DCG for filing
purposes.
Defined Benefit Pension Plans: In
2018, there were 46,869 defined benefit
plans with 34.0 million total
participants and 13.1 million active
participants. There were 45,275 singleemployer defined benefit plans and
1,388 multiemployer defined benefit
plans.24
Multiple Employer Pension Plans: A
MEP, for Form 5500 reporting purposes,
generally is a retirement plan
maintained by two or more employers
that are not members of the same
controlled group or affiliated service
group under Code section 414(b), (c), or
(m), and which is not a multiemployer
plan.25 In 2018, there were 4,730 MEPs
filing a Form 5500, of which 207 were
defined benefit pension plans and 4,523
were defined contribution pension
plans. There were 6.9 million
participants reported as covered by
these plans.26 The proposal, if finalized,
would establish a new Schedule MEP to
report information specific to pension
MEPs. While the new Schedule MEP
would retain ERISA section 103(g)
participating employer information that
MEPs must currently file as a nonstandardized attachment, it also would
add the SECURE Act requirement for
pension MEPS to report aggregate
account balances information for each
participating employer in the MEP.
Schedule MEP would also include
questions intended to focus on SECURE
Act issues and compliance for pooled
employer plans.
Association Retirement Plan. An
association retirement plan is a defined
contribution MEP, sponsored by a bona
fide group or association of employers
that meets the conditions under 29 CFR
2510.3–55(b). The DOL does not have
information on how many reporting
MEPs are association retirement plans
or otherwise to estimate the number of
association retirement plans (a sub-class
of MEPs) that currently exist.
24 Id.
25 See,
e.g., 2020 Form 5500 instructions at 14.
Benefits Security Administration.
‘‘Private Pension Plan Bulletin, Abstract of 2018
Form 5500 Annual Reports.’’ (June 2020).
26 Employee
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51291
Professional Employer Organizations
(PEOs) Plan: A PEO MEP is a defined
contribution pension plan sponsored by
a bona fide PEO that meets the
conditions under 29 CFR 2510.3–55(c).
According to the National Association
of Professional Employer Organizations,
there are 487 PEOs in the United
States.27 The DOL does not have
information on how many PEOs
currently meet the conditions under 29
CFR 2510.3–55(c) to sponsor defined
contribution MEPs for their clients, but
assumes a substantial percentage of
PEOs do sponsor MEPs, including
defined contribution MEPs.
Pooled Employer Plans. The SECURE
Act amended section 3(2) of ERISA and
added section 3(43) to ERISA to
authorize a new type of ERISA covered
defined contribution MEP referred to as
a ‘‘pooled employer plan’’ to be
operated by a ‘‘pooled plan provider.’’
In its 2020 final rule on Registration
Requirements for Pooled Plan Providers,
the DOL noted the uncertainty
surrounding the number of pooled
employer plans that could be created
based on the final rule, the number of
employers that would participate in
such plans, and the number of
participants and beneficiaries that
would be covered by them.28
Approximately 50 pooled plan
providers have filed an initial Form PR
Pooled Plan Provider Registration (Form
PR) and registered with the DOL.29
The DOL does not have
comprehensive data on how many
employers are participating in pooled
employer plans or the number of
participants covered by the plans until
the pooled employer plans file their first
Forms 5500 in 2022 for their 2021
reporting year. The DOL attempted to
review available public information on
pooled employer plans by looking at
information included in the filed Forms
PR, and by examining news articles and
statements on the pooled plan
provider’s websites. That review
indicated that that there are a variety of
approaches in how pooled employer
plans are offered, and a variation in the
27 National Association of Professional Employee
Organizations, Industry Statistics (Accessed 6/28/
2021), https://www.napeo.org/what-is-a-peo/aboutthe-peo-industry/industry-statistics. NAPEO had
previously reported 904 PEOs but revised its
methodology. An explanation of the revision is
included on the NAPEO website. See The PEO
Industry Footprint 2021, Laurie Bassi and Dan
McMurrer, McBassi & Company at page 4 (May
2021) (available at www.napeo.org/docs/defaultsource/white-papers/2021-white-paperfinal.pdf?sfvrsn=6dde35d4_2.
28 85 FR 72934, 72949 (Nov. 16, 2016).
29 Department of Labor. Form PR. https://
www.dol.gov/agencies/ebsa/employers-andadvisers/plan-administration-and-compliance/
reporting-and-filing/form-pr.
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number of employers that have joined a
pooled employer plan. While pooled
plan providers are required to update
the Form PR to advise the DOL and the
IRS about the establishment and offering
of new pooled employer plans, the Form
PR does not collect information on the
number of employers participating in
their pooled employer plans or the
number of employees covered by each
plan. One pooled plan provider was
reported in another source as having
2,000 employers joined their pooled
employer plan, whereas other providers
reported five to 10 employers had joined
their pooled employer plans. As part of
the request for comments, the DOL is
seeking information on the number of
employers that have already joined a
pooled employer plan and the number
of employees covered by the plan in
total and broken down by employer.
Pre-approved Pension Plans: These
are plans that reported plan
characteristics code 3D when filing the
Form 5500 Annual Return/Report. The
code 3D indicates ‘‘A pre-approved plan
under sections 401, 403(a), and
4975(e)(7) of the Code that is subject to
a favorable opinion letter from the IRS.’’
A pre-approved retirement plan is a
plan offered to employers by financial
institutions and others that are
authorized to sponsor pre-approved
plans. The pre-approved plan provider
then makes the IRS-approved plan
available to adopting employers.
Providers must make reasonable and
diligent efforts to ensure that adopting
employers of the plan have actually
received and are aware of all plan
amendments and that such employers
complete and sign new plans when
necessary.30 Of the 611,568 defined
contribution pension plans that reported
code 3D, 544,090 are reported as small
plans, as they report having fewer than
100 participants each. Of these small
defined contribution plans, 499,234 file
the Form 5500–SF, cover approximately
10.0 million participants, and hold
approximately $0.6 trillion in assets.
The DOL expects that Form 5500–SF
small pension plan filers are the most
likely candidates to join a DCG or a
pooled employer plan. The DOL lacks
information on the number of plans,
whether or not currently Form 5500–SF
eligible filers, that would join a DCG or
a pooled employer plan. The DOL is
seeking comment on this issue.
Multiple Employer Welfare
Arrangement (MEWA): A MEWA is
defined in ERISA section 3(40)(B)
generally as an employee welfare benefit
30 IRS website at https://www.irs.gov/retirementplans/pre-approved-retirement-plans (last updated
Apr 2, 2021).
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plan or any other arrangement, which is
established or maintained for the
purpose of offering or providing welfare
benefits to the employees of two or more
employers, or to their beneficiaries. For
purposes of this definition, two or more
trades or businesses, whether or not
incorporated, are deemed a single
employer if such trades or businesses
are under common control. Section
3(40) excludes from the definition of the
term MEWA any plan or arrangement
established or maintained under or
pursuant to a collective bargaining
agreement, or by a rural electric
cooperative or rural telephone
cooperative association. MEWAs that
offer or provide coverage for medical
benefits are generally required to file the
Form M–1. In the 2018 calendar year,
there were 640 total plan MEWAs that
filed a Form M–1 with 2.0 million total
participants. There were 47 non-plan
MEWAs based on Form M–1 filings.31
Plans affected by change in
participant-count methodology for
determining large plan versus small
plan status and related filing
requirements. As discussed in the
NPFR, the Agencies are proposing a
change in the methodology for defined
contribution pension plans to determine
whether the plan is a ‘‘large plan’’
(generally covers 100 or more
participants) for purposes of Form 5500
annual reporting requirements,
including the requirement to include an
IQPA report and other schedules
generally applicable to large pension
plans. The plan size measure for this
annual reporting distinction is based on
the total number of participants at the
beginning of the plan year and expressly
includes employees eligible to
participate in a Code section 401(k) plan
(‘‘401(k) plan’’) even if the employees
has not elected to participate and does
not have an account balance. The
proposed change would use a
participant count based on the number
of participants at the beginning of the
year with an account balance. Current
Form 5500 filings collect the number of
participants at the end of the year with
a balance, and does not currently collect
such a figure for the beginning of the
plan year. Accordingly, we used the end
of year number of participants with a
balance to estimate the number of plans
impacted by this change. The actual
number of plans effected could be
higher or lower, depending on a plan’s
dynamics, but for plans that are
growing, using the end of year number
as a proxy for the beginning of year
number could lead to an overestimate of
31 These figures are based on calculations from
2018 Form M–1 filing data.
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the number of affected plans. Using the
current definitions of large and small
plans, there are 84,754 large defined
contribution plans and 590,254 small
defined contribution plans. Using the
number of participants at the end of the
year with an account balance as a proxy
for the new proposed methodology,
there are 65,312 large defined
contribution plans and 609,695 small
defined contribution plans. This would
result in an estimated 19,442 defined
contribution plans that, if the
regulations are finalized as proposed,
would be able to file as small plans
instead of large ones and would
experience cost savings, including due
to being able to satisfy the conditions for
being exempt from the IQPA report and
from including the Schedules of Assets
as part of their annual report.
Benefits
Benefits of Changes for Pooled
Employer Plans. The SECURE Act
established a new type of ERISAcovered defined contribution pension
plan, the pooled employer plan, that is
established and maintained by a pooled
plan provider that meets the conditions
of the statute. By creating the pooled
employer plan structure, the SECURE
Act permitted multiple unrelated
employers to participate without the
need for any common interest among
the employers (other than having
adopted the plan). As discussed above,
pooled employer plans need to provide
ERISA section 103(g) participating
employer information, as well as certain
basic information regarding the pooled
plan provider. Potentially increased
reporting costs for those employers
choosing to offer retirement benefits to
their employees through participating in
a pooled employer plan would be offset
by other cost reductions or business
benefits relative to not having
administer an individual plan as further
discussed below.
By participating in a pooled employer
plan, employers could minimize their
fiduciary responsibilities for ongoing
administration and operation of the
plan. Employers could benefit from
reduced risk and liability because the
pooled plan provider would bear most
of the administrative and fiduciary
responsibility for operating the pooled
employer plan, including hiring and
monitoring the 3(38) investment
manager. Similarly, because the pooled
plan provider handles the
administrative tasks such as participant
communications, plan recordkeeping,
submitting the Form 5500 and
complying with plan audits, this could
increase the operating efficiency for
participating employers. Also, as they
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are expected to be professional plan
providers, it is anticipated that a pooled
plan provider, relative to a small
employer, would ensure that more
accurate and complete data is reported
to the DOL on the Form 5500. Further,
as discussed in the regulatory impact
analysis to the regulation establishing
the Form PR, pooled employer plans
generally would benefit from scale
advantages, including the ability to
obtain lower fees for investment
options.32 The marginal costs for pooled
employer plans would diminish and
pooled plan providers would spread
fixed costs over a larger pool of member
employers and employee participants,
creating direct economic efficiencies.
Szapiro’s research finds that the peremployer cost of a large MEP can be
lower than the cost of a small single
employer plan.33 Specifically, the study
finds that a MEP with $125 million and
80 participating companies cost 78 basis
points, whereas a single-employer plan
with $1.5 million cost 111 basis points.
Thus, compared to single-employer
plans, MEPS can be a more cost-efficient
option for small employers. The
increased economic efficiency may
result in small businesses being able to
compete more easily with larger
companies in recruiting and retaining
workers due to a competitive employee
benefit package. Finally, pooled
employer plans may enable participants
to achieve better retirement outcomes.
VanDerhei’s research finds that the
adoption of a MEP in which the
members do not need to share a
common interest, other than
participating in the same plan, with a 25
percent opt-out rate among employees,
results in an overall 1.4 percent
reduction in the retirement savings
deficit, compared to when a MEP is not
adopted.34 The study also finds a 3.1
percent reduction in the retirement
savings deficit for individuals working
for employers with fewer than 100
employees and 3.3 percent reduction in
the retirement savings deficit for
individuals working for employers with
100 to 500 employees.
Benefits of Establishing the Proposed
Schedule MEP. A benefit of the
32 85
FR at 72949–72950.
Aron, ‘‘Pooled Employer Plans:
Paperwork or Panacea.’’ Accessible at https://
www.morningstar.com/lp/paperwork_or_panacea.
34 VanDerhei, Jack. ‘‘How Much More Secure
Does the SECURE Act Make American Workers:
Evidence from EBRI’s Retirement Security
Projection Mode.’’ EBRI Issue Brief. No 501 (2020).
VanDerhei refers to MEPs in which the members do
not need to share a common interest as ‘‘Open
MEPs.’’ (Available at https://www.ebri.org/docs/
default-source/ebri-issue-brief/ebri_ib_501_secure20feb20.pdf?sfvrsn=db6f3d2f_4 (Accessed July 21,
2021.)).
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proposed Schedule MEP would provide
a unified vehicle to report information
related to new SECURE Act provisions,
including information unique to MEPs.
The participating employer information
collected pursuant to section 103(g) of
ERISA would also be data capturable
and available at publicly viewable
website containing images of the Form
5500 and related data sets. That public
data would help protect plan
participants and beneficiaries by
allowing for improved analysis for
oversight and research purposes by the
government, the regulated community,
and other interested stakeholders.
Benefits of DCGs. The proposal would
update Form 5500 annual reporting
requirements to establish requirements
pursuant to section 202 of the SECURE
Act for a consolidated return/report to
provide eligible individual account
plans with an alternative method of
compliance with annual reporting
requirements that would otherwise
mandate a separate annual report for
each plan. The consolidated reporting
option for defined contribution pension
plans also allows for more choice and
flexibility in the reporting of
information to the government. Eligible
plans can choose, based on benefits and
preferences, if they want to continue
with the plan filing as individual plan
or as part of a DCG. Plans whose
individual reporting obligations would
be satisfied by a DCG annual return/
report filing may see a reduction in
reporting costs depending on their
circumstances.
The proposal includes the proposed
Schedule DCG to provide individual
plan-level information for those defined
contribution pension plans whose
annual reporting requirement would be
satisfied by a DCG’s consolidated filing.
The uniformity of the DCG arrangement
structure and the benefits of
consolidated reporting may reduce the
complexity and administrative burden
of plans. Also, by having a common
plan administrator who is expected to
be a professional service provider filing
on behalf of a group, it may increase the
likelihood that more accurate and
complete data is reported to the DOL.
As a result, there may be an increase in
annual reporting compliance and
compliance with applicable ERISA
requirements in general. Additionally,
the Schedule DCG would help the
Agency compare individual plan
participation and aggregate asset and
liability information from year-to-year.
The Schedule DCG would include many
of the questions that are currently
required on the Form 5500–SF, and for
large plans, the Schedule H questions
regarding the report of an IQPA, as well
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51293
as an IQPA report. While this
requirement reduces the cost saving of
filing as a DCG, the DOL and the IRS
(collectively ‘‘Departments’’) believe the
information requested is consistent with
the SECURE Act provision permitting
the Departments to collect whatever
plan level information is needed to
perform adequate oversight and vital to
provide to participants, beneficiaries,
and the Departments information
needed to adequately monitor the plans
and keep track of their assets from year
to year.
In light of changes in the financial
environment and increasing concern
about investments in hard-to-value
assets and alternative investments, the
proposed requirement that plans
participating in DCGs must have
investments that meet the currently
applicable ‘‘eligible plan investment’’
criteria for filing a Form 5500 is
important for regulatory, enforcement,
and disclosure purposes. The proposal
would also add trust questions to the
Form 5500, the Form 5500–SF, and, the
IRS Form 5500–EZ, regarding the name
of the plan’s trust, the trust’s employer
identification number (EIN), the name of
the trustee or custodian, and the
trustee’s or custodian’s telephone
number. This information will enable
the Agencies to focus more efficiently
on compliance concerns for retirement
plan trusts, including those for pooled
employer plans and DCG reporting
arrangements.
Changes to Method of Determining
Small Plan Status for Certain Filing
Exemptions and Requirements: As
described in the NPFR, the proposal
would change the current method of
counting covered participants for
purposes of determining when a defined
contribution plan may file as a small
plan and whether the plan may be
exempt from the IQPA audit
requirements generally applicable to
large defined contribution pension
plans. Under the proposal, defined
contribution pension plans, including
401(k) plans and 403(b) plans, would
determine whether they have to file as
a large plan and whether they have to
attach an IQPA report based on the
number of participants with account
balances as of the beginning of the plan
year. Currently, the IQPA requirement
includes the total number of eligible
participants at the beginning of the plan
year, even if the participant is not
making contributions, receiving
employer contributions, or maintaining
an account in the plan. Further, some
stakeholders have suggested that section
112 of the SECURE Act could make it
even more likely that a plan with a
small number of active participants
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might be required to bear the cost of an
audit based on eligible, but not
participating employees being counted
toward the audit threshold. Specifically,
because section 112 provides that,
beginning January 1, 2024, long-term,
part time workers that have reached the
plan’s minimum age requirement and
have worked at least 500 hours in each
of three consecutive 12-months period
must be permitted to make elective
contributions to a section 401(k)
qualified cash or deferred arrangement,
there could be more employees eligible
to participate that would elect not to do
so. This change in counting
methodology would result in not
counting, for this annual reporting
purpose, those long-term, part time
workers who are eligible to make
elective contributions to a 401(k) plan,
but have not in fact elected to
participate in the plan. The DOL expects
that excluding from the participant
count participants who are eligible to
participate but do not have an account
balance at any time during the plan year
will reduce expenses of establishing and
maintaining a retirement plan, and as a
consequence, encourage more
employers to offer workplace-based
retirement savings plans to their
employees.
Improving Consistency and
Enhancing Usability of Data Filed on
the Schedules of Assets. The financial
information reported on the Form 5500
Annual Return/Report, particularly the
asset/liability statement, contained in
the current Schedule H (Large Plan
Financial Information), Schedule I
(Small Plan Financial Information), as
well as the more recently established
Form 5500–SF, is based on data
elements that have remained largely
unchanged since the Form 5500 Annual
Return/Report was established in 1975.
Many investments in alternative and
hard-to-value assets and held in
collective investment funds do not fit
squarely into any of the existing
reporting categories on data captured
financial schedules filed with the Form
5500 (Schedule H for large plans and
Schedule I for small plans). The GAO
has expressed concerns that many
investments with widely varying risk,
return, and disclosure considerations
are often reported in the catchall ‘‘other
plan asset’’ category.35 GAO also noted
that the plan asset categories on the
Schedule H are not representative of
current plan investments, and provide
little insight into the investments
themselves, the level of associated risk,
35 GAO Targeted Revisions Could Improve
Usefulness of Form 5500 Information, at 12.
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or structures of the investments.36 The
DOL–OIG have also recommended that
the Agencies revise the Form 5500
Annual Return/Report to improve
reporting of hard-to-value assets and
alternative investments.37 As part of
their overall evaluation of how best to
structure financial reporting for pooled
employer plans, MEPs, and DCG
reporting arrangements to maximize
usable data while limiting burden
increases, the Agencies decided, as
discussed in detail earlier in this
document and the Notice of Proposed
Forms Revisions published
simultaneously, to propose format, data
element and instruction changes to the
Schedule H, Line 4i Schedule of Assets
Held for Investment and the Schedule of
Assets Acquired and Disposed of Within
the Plan Year. Although driven by an
interest in ensuring transparency and
financial accountability for pooled
employer plans, MEPs, and DCG
reporting arrangements, the rationales
for the changes applied more generally
to large pension and retirement savings
plans. These changes apply to large
plans required to file the Schedules of
Assets and would not increase the
annual reporting burden for small plans.
The proposed changes to the Schedule
H Line 4i Schedules of Assets, in
addition to better meeting the needs of
the Agencies, other government users,
and other end users of the data, should
serve to address the shortcomings
identified in these reports. The basic
objective of general financial reporting
is to provide information about the
reporting entity for the Agencies’
enforcement, research, and policy
formulation programs, for other Federal
agencies, Congress, and the private
sector in assessing employee benefit,
tax, and economic trends and policies;
and for plan participants and
beneficiaries and the general public in
monitoring employee benefit plans.
Making consistent the financial
reporting instruments would bring
greater transparency to plan
transactions, which would enhance the
efficiency of the Agencies’ enforcement
efforts. Specifically, the Agencies would
be better able to focus their enforcement
efforts, which will reduce the number of
investigations involving plans that are
not engaging in problematic activities.
Additionally, ERISA Section 513(a)
authorizes and directs the Secretary of
Labor and EBSA to conduct a research
36 Id.
37 EBSA Needs to Provide Additional Guidance
and Oversight to ERISA Plans Holding Hard-ToValue Alternative Investments, Department of Labor
Office of Inspector General Report Number: 09–13–
001–12–121 at 4, 18, and 19.
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program on employee benefits. The
Form 5500 Annual Return/Report is one
of the leading sources of data used in
this research program. Making uniform
and receiving in a data searchable way
the financial information reported on
the Form 5500 Annual Return/Report
would improve the quality of the
research conducted by internal and
external researchers. This improved
research, in turn, would improve the
quality of policy decisions made by
DOL and other governmental
policymakers that rely on the Form 5500
Annual Return/Report data.
Benefits of Maintaining Participating
Employer Information for MEWAs and
Expanding It to Non-Plan MEWAs that
Provide Medical Benefits. The proposal,
as described in the NPFR, would add
new questions to the Form M–1 and
instructions to require MEWAs (plan
and non-plan) that offer or provide
coverage for medical benefits to provide
multiple employer participating
employer information on the Form
M–1 and not as an attachment to the
Form 5500 Annual Return/Report. Plan
MEWAs that provide other benefits and
thus are not required to file a Form
M–1 (i.e., life and disability benefits)
would continue to report the
participating employer information as
an attachment to the Form 5500 Annual
Return/Report.
The proposal would also change
which MEWAs are required to report
the participating employer information.
The current Form 5500 requirement for
MEPs to report participating employer
information applies to plan MEWAs
only. Non-plan MEWAs providing
health benefits would now have to
provide the information. Based on 2018
Form M–1 filings, there were 640 plan
MEWAs and 47 were non-plan
MEWAs.38 The proposal, by transferring
the participating employer information
from the Form 5500 Annual Return/
Report to the Form M–1 for MEWAs that
offer or provide coverage for medical
benefits and continuing to require
reporting of participating employer
information on the Form 5500 Annual
Return/Report for plan MEWAs that
provide other benefits, would enable the
Agencies to receive participating
employer information from both plan
and non-plan MEWAs, regardless of
how they are funded or structured. This
would help the Agencies better monitor
activities of MEWAs and protect plan
beneficiaries.
38 These calculations are based on internal
Department calculations based on 2018 Form M–1
filings. See the affected entities section for more
information.
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Internal Revenue Code-Based
Questions for the 2022 Form 5500s. In
the NPFR, several questions are being
proposed to be added to the 2022 Form
5500s to help identify plans that are
more likely to experience compliance
issues, and help the IRS more effectively
conduct investigations. Section III.F of
the preamble to the NPFR provides a
description of these proposed Codebased questions. The proposal, as set
forth in the NPFR, would add a
nondiscrimination and coverage test
question to Form 5500 and Form 5500–
SF that was on the Schedule T before it
was eliminated. The question asks if the
employer aggregated plans in testing
whether the plan satisfied the
nondiscrimination and coverage tests of
Code sections 401(a)(4) and 410(b).
Adding this question will allow EP to
identify these plans for examination.
This question is also helpful when
performing pre-audit analysis and
allows the IRS to narrow any inquiries
for information that is requested from
the plan sponsor. The restoration of this
question also reflects the elimination of
optional coverage and
nondiscrimination demonstrations in
the IRS determination letter process. See
Rev. Proc. 2012–6, 2012–1 I.R.B. 235
and Announcement 2011–82, 2011–52
I.R.B. 1052.
The proposal, as described in the
NPFR, would add a question to Form
5500 and Form 5500–SF, for 401(k)
plans asking whether the plan sponsor
used the design-based safe harbor rules
or the ‘‘prior year’’ ADP, or ‘‘current
year’’ ADP test, or if it is not applicable.
A plan that performs ‘‘prior year’’ or
‘‘current year’’ ADP testing is more
likely to have compliance issues than a
plan with a ‘‘designed-based safe
harbor.’’ Adding this question, would
allow EP to identify 401(k) plans that
use ADP testing for examination over
plans that have designed-based safe
harbors. This question would also help
the IRS perform pre-audit analysis and
for design-based safe harbor plans allow
us to verify whether allocations of
required safe harbor contributions
comply with the terms of the plan; and
whether proper notice requirement is
satisfied on an annual basis.
Finally, the proposal, as indicated in
the NPFR, would add a question to
Form 5500 and the Form 5500–SF
asking whether the employer is an
adopter of a pre-approved plan that
received a favorable IRS Opinion Letter,
the date of the favorable Opinion Letter,
and the Opinion Letter serial number.39
39 IRS is proposing to make a parallel update to
the Form 5500–EZ, which is solely in the
jurisdiction of the IRS.
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This question would help the IRS
identify whether a plan sponsor has
adopted a pre-approved plan and to
determine whether the plan was
adopted timely in accordance with the
Code section 401(b) remedial
amendment period. This question
would also assist IRS in determining
whether to select a plan for examination
as a late amender for changes in the law.
Defined Benefit Plan/Title IV
Questions for the 2022 Form 5500s: The
proposed changes to the Form 5500
Schedules MB, SB, and R would help
remedy data and information
inadequacies, increasing plans’
transparency, enable Agencies to project
more precisely defined benefit pension
plans’ and insurance programs’
liabilities, and help the PBGC more
effectively conduct investigations and
better protect plan participants and
beneficiaries.
Schedule MB collects actuarial
information on multiemployer defined
benefit plans and certain money
purchase plans. By revising line 6 and
clarifying the expense load percentage
calculation, the Agencies would be able
to easily identify the expense load and
more accurately project plan liabilities
to model the impact of additional
employers withdrawing from the plan in
the future. The proposed changes to the
schedule would provide greater
transparency in the actuarial status and
the actuarial assumptions of the plans.
Based on reviewing previously filed
Schedules MB responses to line 4f, it
appears to the Agencies that there is
some confusion as to how to fill out line
4f of Schedule MB correctly, as some of
the responses do not make sense.
Clarification of the instructions and line
language is intended to remove
potential confusion and provide more
consistent and correct responses.
Schedule SB collects actuarial
information on single-employer defined
benefit plans. The proposed changes
would better align filing requirements
for single-employer defined benefit
plans with the more detailed
requirements for PBGC-insured
multiemployer plans. As with the
proposed changes to the Schedule MB,
these proposed changes would allow for
greater transparency in the actuarial
status and the actuarial assumptions of
the plans.
Schedule R collects information on
retirement plans. Previously,
multiemployer defined-benefit pension
plans were required to report
identifying information about any
employer whose contributions to the
plan exceeded five percent of total
annual contribution. The regulation
proposes, instead, to require plans to
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report identifying information on any
employer who (1) contributed more than
five percent of the plan’s total
contributions or (2) was one of the top
ten highest contributors. This would
provide greater transparency on
contributors and ensure that reported
data represents a reasonable sampling of
contributors.
The proposed regulation also
proposes changes in format for certain
attachments. EFAST2 filers currently
file some Form 5500 attachments as PDF
and plain text files. Due to the nature of
the attachments, they often include
many numbers that are difficult to
extract from these file types. There is
consideration being given to steps that
could be taken to allow more integration
of common tabular formats
(spreadsheet) such as Comma Separate
Value(s) (CSV). As this is not being
considered as a requirement at this
point, plans would not incur an
additional cost if such functionality
were made available. Rather, the
Agencies expect this option may
simplify the process for preparing and
filing attachments.
1.3. Cost Estimates and Savings
The DOL anticipates that the costs for
plans to satisfy their annual reporting
obligations would on average decrease
under these proposed regulations
relative to the current regime.40 As
shown in Table 1 below, the aggregate
annual cost of such reporting under the
current regulations and forms is
estimated to be $514.8 million annually,
shared across the 822,100 filers subject
to the filing requirement.
The DOL estimates that the
regulations and forms revisions in this
proposed rule would impose an annual
burden of $514.1 million on 804,100
filers, for a total decrease of $64.6
million annually, $63.9 million
annually in audit cost savings and $0.7
million annually in other reporting
costs. This proposal makes important
changes to the requirements currently in
effect while also allowing for the
number of small plans and large plans
to change for annual reporting purposes.
The DOL estimates that a total of 17,601
small plans and 563 large plans would
opt to join either a DCG or a pooled
employer plan, and therefore have their
filing requirement fulfilled by these
40 The DOL believes that the annual cost burden
on filers would be higher still in the absence of the
regulations enabling use of the Form 5500 Annual
Return/Report in lieu of the statutory requirements.
Without the Form 5500 Annual Return/Report,
filers would not have the benefits of any regulatory
exceptions, simplified reporting, or alternative
methods of compliance, and standardized and
electronic filing methods.
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Federal Register / Vol. 86, No. 176 / Wednesday, September 15, 2021 / Proposed Rules
entities. The DOL also estimates that
19,442 large plans would be re-defined
and file as small plans as a result of the
change in the current threshold for
determining when a defined
contribution plan may file as a small
plan.
TABLE 1—ESTIMATED BURDEN CHANGE BY TYPE OF FILER
ALL PROPOSED CHANGES
Number of
filers under
current
(thousands)
Type of plan
Number of
filers under
proposed
(thousands)
Aggregate
cost under
current
(millions)
Aggregate
cost under
proposed
(millions)
Aggregate
cost change
(millions)
Large Plans ..........................................................................
Small Plans ..........................................................................
DFEs ....................................................................................
146.8
666.1
9.3
126.9
667.9
9.4
$268.8
234.7
11.4
$260.3
235.2
18.6
¥$8.4
0.5
7.2
All Plans ........................................................................
822.1
804.1
514.8
514.1
¥0.7
Audit Cost
¥63.9
Overall Total
¥64.6
khammond on DSKJM1Z7X2PROD with PROPOSALS
Note: Some displayed numbers do not sum up to the totals due to rounding.
Large plans—100 participants or more.
Small plans—generally fewer than 100 participants.
To estimate the net change in cost
burden, as a result of the interaction of
the proposed changes, the DOL has also
analyzed the cost impact of the
individual revisions on classes of filers.
In doing so, the DOL took account of the
fact that various types of plans would be
affected by more than one revision and
that the sequence of multiple revisions
would create an interaction in the
cumulative burden on those plans. The
total changes in Table 1 show the
accumulated changes. The other tables
below show only the impact of a single
change at a time from the status quo;
therefore, the tables cannot be added to
arrive at the estimates in Table 1.
Schedule MEP and Pooled Employer
Plans. The proposed new Schedule MEP
would be filed by all MEPs, including
pooled employer plans, and includes
participating employer information
already filed as an attachment, as well
as limited specific reporting
requirements for pooled employer
plans. The information on participating
employers would then be data-readable,
whereas currently it is only included as
a nonstandard attachment. As discussed
in the affected entities section, estimates
are available for MEPs that have filed a
Form 5500 previously, but not for the
newly created pooled employer plans
that have yet to file a Form 5500. The
impacts of the DOL recent rulemaking
on association retirement plans and PEO
MEPs also carries some uncertainty
regarding the number of MEPs that may
be affected. Approximately 50 entities
have filed the Form PR to register as
pooled plan providers. Therefore, for
purposes of this analysis, the DOL
assumes there would be a total of 75
pooled employer plans. As it is the case
with MEPs, joining a pooled employer
plan translates into less plan
maintenance expenditures given that
MEPs can take advantage of economies
of scale. Additionally, in the DOL’s
view, the information requested on the
Schedule MEP should already be
available to plans, so the burden is
primarily entering the information onto
the form. The burden to file the
Schedule MEP is estimated to average
10 minutes for MEPs and 14 minutes for
pooled employer plans, with variation
depending on the number of
participating employers.
Although the DOL does not know for
certain how many plans would decide
to offer benefits through a pooled
employer plan, it is assumed that the
current average number of participating
employers in a MEP is indicative of the
average number of employers that
would eventually be in any particular
pooled employer plan that may be
41 For the calculation of the total number of
participating employers in pooled employer plans,
it is first assumed that 80 percent of all the
employers who would participate in a pooled
employer plan are currently providing benefits
through small plans, and that the remaining 20
percent through large plans. This distribution
would apply to the registrant that has already
exceptionally listed 2000 employers (which would
then be divided in 1600 small participating plans
and 400 large participating plans) and to the other
74 pooled plan providers assumed to be created. It
is also assumed that each one of these other 74
pooled plan providers would be servicing in total
11 employers. Therefore, the total number of small
participating plans in a pooled employer plan is
calculated as: 1,600 + (74 * 11 * 0.8) = 2,251
(rounded). Similarly, the total number of large
participating plans is calculated as 400 + (74 * 11
* 0.2) = 563 (rounded).
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established in the future. The DOL
estimates that MEPs, on average, have
nine employers participating in a MEP
with fewer than 100 participants and
two employers with 100 or more
participants. The DOL uses these
measures as estimates for most of the
upcoming pooled employer plans,
therefore assuming that, for most pooled
employer plans, on average there would
be nine small participating plans and
two large participating plans per pooled
employer plan. Combined with one
pooled plan provider registrant that has
already listed 2000 participating
employers, it is estimated that a total of
2,251 small participating plans and 563
large participating plans would provide
benefits through pooled employer
plans.41 The DOL assumes this would
result in a direct decrease of 2,251
defined contribution Form 5500–SF
filers and a decrease of 563 Form
defined contribution 5500 filers. As
Table 2 shows this would result in a
reporting cost reduction of $1.5 million
(not including the audit cost reduction
in Table 1) and a total reduction of filers
from 822,100 to 819,400 filers. Such a
reduction in filers would be partially
offset by an increase in pooled employer
plan filings. We are not, however, able
to explicitly measure the net impact on
filings because of the uncertainty
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regarding the number of pooled
employer plans and the resulting
increase in pooled employer plan
51297
filings. The DOL requests comments on
these estimates.
TABLE 2—ESTIMATED BURDEN CHANGE BY TYPE OF FILER
INTRODUCTION OF POOLED EMPLOYER PLANS AND SCHEDULE MEP FILING
Number of
filers under
current rules
(thousands)
Type of plan
Number of
filers under
proposed rules
(thousands)
Aggregate
reporting
cost under
current rules
(millions)
Aggregate
reporting
cost under
proposed rules
(millions)
Aggregate
cost change
(millions)
Large Plans ..........................................................................
Small Plans ..........................................................................
DFEs ....................................................................................
146.8
666.1
9.3
146.3
663.8
9.3
$268.8
234.7
11.4
$267.9
234.0
11.4
¥$0.9
¥0.7
0.0
Overall Total .................................................................
822.1
819.4
514.8
513.3
¥1.5
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Note: Some displayed numbers do not sum up to the totals due to rounding.
Large plans—100 participants or more.
Small plans—generally fewer than 100 participants.
DCG filings. As discussed above, a
DCG filing for a group of plans has the
potential to reduce reporting burden as
only one Form 5500 is filed and signed
by a common plan administrator so
signatures from separate administrators
of the participating plans are not
needed. Offsetting these cost savings
would be the burden from the
consolidated Form 5500 filed by the
DCG, including the Schedule DCG to
report individual plan information for
each participating plans. There are
499,234 small defined contribution
plans that file the Form 5500–SF and
report the plan characteristic code 3D;
the DOL assumes this type of plan may
find it advantageous to adopt this new
structure of providing benefits and
therefore a fraction of them will join a
DCG. The DOL seeks comments on these
assumptions.42
The change in burden from allowing
a DCG to file on behalf of plans is
estimated in the following manner.
Apart from the 499,234 small defined
contribution mentioned above, there are
1,813 pre-approved plans.43 While the
DOL does not know if all 1,813 preapproved plans actually would file on
behalf of these 499,234 plans, if they did
there would be an average of 275 plans
per pre-approved filer. These preapproved filers are the likeliest entities
to file as a DCG. Although DOL lacks
sufficient information to confidently
estimate how many DCGs will form, the
50 entities that have filed the Form PR
to register as a pooled plan provider, so
far, may be suggestive of the number of
entities currently seeking to take
advantage of new structures to reduce
plan administrative costs. Potential
DCGs may be better positioned than
pooled plan providers to commence
operations as they already have client
plans that could benefit from the
savings and do not have to switch plans.
Therefore, the DOL assumes that twice
the number of DCGs (100) would form
in the first year as the number of pooled
plan providers (50). With the
availability of DCGs as an option, some
service providers may discontinue their
provision of individual Form 5500 filing
services, and only offer to file as DCGs.
Some plans that contract with such
service providers may choose to be
moved into DCG filings, while others
may seek out new service providers
because they don’t wish to comply with
the additional filing obligations placed
on DCG filers. For purposes of this
analysis, we assume that approximately
half of the plans currently associated
with a pre-approved plan provider
would be offered the opportunity and
would agree to comply with the DCG
requirements to stay with the same
provider. The DOL then uses these
results to assume 100 DCGs with a total
of 15,350 small plans whose annual
return/report filing obligation would be
satisfied by the filing of a DCG Form
5500.
As described above, the consolidated
return/report that would need to be filed
by the DCG to satisfy the annual
reporting requirements of participating
plans would have to include a Schedule
DCG for each participating plan. The
cost calculation must therefore take into
account cost of this schedule per plan
participating in a DCG. The DOL
believes that once individual plans join
a DCG, the average cost of filing a
Schedule DCG, which would be done
for each one of the estimated 15,350
participating plans, would be lower
than the cost of filing a Form 5500–SF
separately, which cost was incurred by
a small plan before joining a DCG.
Although the DOL does not know how
much lower this new cost would be, it
estimates that completing a schedule
DCG as part of the DCG’s Form 5500
annual return/report would take about
40 percent less time than completing a
Form 5500–SF for each individual plan.
As Table 3 shows, assuming the
number of DCGs and plans per DCG as
described above, along with the
estimated cost of filing schedule DCG,
the DOL expects an overall cost
reduction of $1.6 million. This cost
reduction assumes, as baseline, the
current definition of large and small
plans, and would be the result of a
decrease in the number of Form 5500–
SF filers, from 666,100 to 650,700. Such
a reduction in filers would be partially
offset by an increase in DFE filings,
which reflects the introduction of DCGs
as filing entities.
42 The DOL acknowledges that there could be
other employers whose plans are outside the
category of small defined contribution type, which
currently file the Form 5500–SF and report plan
characteristic 3D, that might also find an advantage
in joining a DCG and therefore start providing
benefits this way.
43 https://www.irs.gov/retirement-plans/preapproved-retirement-plans.
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Federal Register / Vol. 86, No. 176 / Wednesday, September 15, 2021 / Proposed Rules
TABLE 3—ESTIMATED BURDEN CHANGE BY TYPE OF FILER
INTRODUCTION OF DCGS AND SCHEDULE DCG FILING
Number of
filers under
current rules
(thousands)
Type of plan
Number of
filers under
proposed rules
(thousands)
Aggregate
reporting
cost under
current rules
(millions)
Aggregate
reporting
cost under
proposed rules
(millions)
Aggregate
cost change
(millions)
Large Plans ..........................................................................
Small Plans ..........................................................................
DFEs ....................................................................................
146.8
666.1
9.3
146.8
650.7
9.4
$268.8
234.7
11.4
$268.8
230.1
14.3
$0.0
¥4.6
2.9
Overall Total .................................................................
822.1
806.9
514.8
513.1
¥1.6
Note: Some displayed numbers do not sum up to the totals due to rounding.
Large plans—100 participants or more.
D Small plans—generally fewer than 100 participants.
As noted above, there is substantial
uncertainty regarding these estimates.
The DOL specifically seeks comments
on estimates of the number of DCGs, the
number of plans joining those DCGs,
and the cost of filing a schedule DCG
compared to filing a Form 5500–SF, and
the overall cost burden savings due to
plans joining a DCG.
Revised financial reporting on the
Schedule H: Revising the Schedule H
Line 4i Schedules of Assets to make it
data-capturable to increase the
accessibility to this information,
including information regarding hardto-value assets, would increase costs.
Without altering the current definition
of large and small plans, the DOL
estimates that the effect of this change
would be to increase the total burden by
370,253 hours, which reflects the
increase in burden that large plans and
DFEs, both as typical filers of Schedule
H, would face. As Table 4 shows, in
total this change would translate into an
increase of filing costs of $41 million
(which represents an estimated cost of
approximately $260 per large plan/DFE
potentially required to file the
Schedules of Assets). The Department
seeks comments on the increase in
burden for entities filing the Schedule
H, and if that burden will decrease over
time.
TABLE 4—ESTIMATED BURDEN CHANGE BY TYPE OF FILER
REVISED FINANCIAL REPORTING ON THE SCHEDULE H
Number of
filers under
current rules
(thousands)
Type of plan
Number of
filers under
proposed rules
(thousands)
Aggregate
reporting
cost under
current rules
(millions)
Aggregate
reporting
cost under
proposed rules
(millions)
Aggregate
cost change
(millions)
Large Plans ..........................................................................
Small Plans ..........................................................................
DFEs ....................................................................................
146.8
666.1
9.3
146.8
666.1
9.3
$268.8
234.7
11.4
$305.4
234.7
15.6
$36.7
0.0
4.3
Overall Total .................................................................
822.1
822.1
514.8
555.7
41.0
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Note: Some displayed numbers do not sum up to the totals due to rounding.
Large plans—100 participants or more.
Small plans—generally fewer than 100 participants.
Changes to Methodology for
Determining Small Plan Status for
Purposes of Annual Report Filing
Requirements: The proposal would
adopt the change described in the NPFR
to the current method of counting
participants for purposes of determining
when a defined contribution plan may
file as a small plan and whether the
plan may be exempt from the IQPA
audit requirement. Specifically, the
proposal would allow plans to count
just the number of participants/
beneficiaries with account balances as
of the beginning of the plan year, as
compared to the current rule that counts
all the employees eligible to participant
in the plan by adding to the Form 5500
and Form 5500–SF a new question, for
defined contribution pension plans
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only, asking for the number of
participants with account balances at
the beginning of the plan year.
This change would reduce costs for
plans. The additional question imposes
little burden as the end-of year number
is already tracked and reported, but to
plans who now qualify as small instead
of large, savings could be significant.
EBSA estimates that the typical
reporting burden of all required
schedules for a small pension plan is
$348. In contrast, the typical reporting
burden of all required schedules for a
large pension plan is currently
estimated by EBSA to be $1,903. While
there would be a cost reduction, these
plans and their participants would no
longer have the protections provided by
the audit, which could result in an
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increased risk of errors and fraud, but
there are conditions for small plans to
be eligible for the audit waiver that are
designed to address those potential
risks. In the case of small pension plans,
to be eligible for the audit waiver small
pension plans must meet conditions
related to investment assets, financial
institutions holding plan assets,
disclosures to participants and
beneficiaries, and enhanced fidelity
bonding for persons who handle certain
assets. In the case of welfare plans, both
large and small plans, the plan must be
fully insured or unfunded to be eligible
for the audit waiver. Consistent with the
Department’s goal of encouraging
pension plan establishment and
maintenance, particularly in the small
business community, the Department
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concluded that engaging an accountant
should not be the only means by which
the security of small plan assets can be
adequately protected. Rather, in
developing the proposed regulation,
consistent with the existing regulatory
conditions for the small plan audit
waiver, the Department attempted to
balance the interest in providing secure
retirement savings for participants and
beneficiaries with the interest in
minimizing costs and burdens on small
pension plans and the sponsors of those
plans.
The DOL estimates that there could be
a reduction of 20,005 large plans filing
under the proposed regulations, 19,442
defined contribution plans due to the
changing definition of who can file as a
small plan, and 563 large participating
plans that could provide benefits
through pooled employer plans. An
estimated 11,362 of these plans
currently provide the IQPA report and
audited financial statements and would
therefore save in audit costs.44 The
Department estimates that there could
be an audit cost reduction of $7,500 for
each one of these 11,362 plans. Plans
may still conduct an audit, even if there
is no requirement. It is estimated that 25
percent of plans could still conduct an
audit.45 Data on the cost of an audit for
these plans is not known and will vary
based on plan size and complexity. An
estimate of $7,500 is used to estimate
the cost savings.46 The Department
seeks comment on the size of the costs
savings. Cost savings of $63.91 million
51299
annually is estimated for the 8,522 plans
(11,362 * 0.75) that will no longer be
required to conduct an audit. These
cost-savings are reported in Table 1
above.
As discussed above there are an
estimated 19,442 defined contribution
plans that would now be able to file as
a small plan. Other reporting cost
savings for these plans are based on
their filing the Form 5500–SF instead of
the Form 5500 and the correspondent
schedules. As shown in Table 5, the
DOL estimates that this redefinition of
small and large alone would translate
into a decrease of filing costs of $29.4
million, with a reduction from 146,800
to 127,400 in large plan filers. The DOL
requests comments on this estimate.
TABLE —ESTIMATED BURDEN CHANGE BY TYPE OF FILER
CHANGES TO FILING EXEMPTIONS AND REQUIREMENTS FOR SMALL PLANS
Number of
filers under
current rules
(thousands)
Type of plan
Number of
filers under
proposed rules
(thousands)
Aggregate
reporting
cost under
current rules
(millions)
Aggregate
reporting
cost under
proposed rules
(millions)
Aggregate
cost change
(millions)
Large Plans ..........................................................................
Small Plans ..........................................................................
DFEs ....................................................................................
146.8
666.1
9.3
127.4
685.5
9.3
$268.8
234.7
11.4
$233.6
240.4
11.4
¥$35.2
5.8
0.0
Overall Total .................................................................
822.1
822.1
514.8
485.4
¥29.4
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Note: Some displayed numbers do not sum up to the totals due to rounding.
Large plans—100 participants or more.
Small plans—generally fewer than 100 participants.
Changes for MEWAs that file the Form
M–1. As set forth in the NPFR, the
proposal would update the Form M–1,
transferring the multiple employer
participating employer information
questions from the Form 5500 to the
Form M–1 for MEWAs (plan and nonplan) that offer or provide coverage for
medical benefits and continued
reporting of participating employer
information on the Form 5500 Annual
as an attachment for plan MEWAs that
provide other benefits. The current
Form 5500 requirement for MEPs to
report participating employer
information applies to plan MEWAs
offering all types of benefits—not just
those that provide group health plans.
The DOL estimates that the change in
burden would be de minimis for these
plans.
However, non-plan MEWAs providing
health benefits would now have the
added burden of providing the
participating employer information. The
DOL assumes that non-plan MEWAs
already have access to this information,
and reporting it would not add a
substantive burden to these entities’
reporting costs.
Internal Revenue Code and ERISA
Title IV Proposed Changes. As described
the NPFR, the proposal includes
changes related to Internal Revenue
Code requirements and reporting
requirements for defined benefit
pensions subject to filing Schedules MB,
SB, and R. The Agencies’ believe the
additional questions reflect information
plans should know and expect that
reporting this information would result
in a de minimis marginal burden.
Assumptions, Methodology, and
Uncertainty: The cost and burden
associated with the annual reporting
requirement for any given plan depend
upon the specific information that must
be provided, given the plan’s
characteristics, practices, operations,
and other factors. For example, a small,
single-employer defined contribution
pension plan eligible to file the Form
5500–SF should incur far lower costs
than a large, multiemployer defined
benefit pension plan that holds multiple
insurance contracts, engages in
reportable transactions, and has many
service providers that each received
over $5,000 in compensation. The DOL
separately considered the cost to
different types of plans in arriving at its
aggregate cost estimates. The DOL’s
basis for these estimates follows.
44 To estimate the number of large plans currently
providing the IQPA report and audited financial
statements the DOL identified those large plans that
would be most likely to be re-defined as small plans
and to have filed the Schedule H in 2018, as
estimated on the 2018 Form 5500 Pension Research
Files. Note that the 80 to 120 participant transition
provision at 29 CFR 2520.103–1(d) allows a plan
that covers fewer than 100 participants to continue
taking advantage of the simplified option or
exemption, as applicable, until they reach 121
participants, therefore not all plans with 100 or
more participants will file a plan in a given year.
45 See https://Mathematica.org/publications/
estimates-of-the-burden-for-filing-form-5500-thechange-in-burden-from-the-1997-to-the-1999-forms.
46 A report by Mathematica suggests audit costs
of between $3,000 and $30,000. Adjusted for
inflation this would be about $5,000 to $50,000 in
2021 dollars. https://mathematica.org/publications/
estimates-of-the-burden-for-filing-form-5500-thechange-in-burden-from-the-1997-to-the-1999-forms.
See also www.paychex.com/retirement-services/
pooled-employer-plans (accessed July 21, 2021)
which suggest $10,000 to $20,000. Additionally
conversations with stake holders suggest a range
similar to the $10,000 to $20,000. As the affected
plans are expected to be small, the low estimates
are averaged ($5,000 and $10,000) to arrive at
$7,500.
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Federal Register / Vol. 86, No. 176 / Wednesday, September 15, 2021 / Proposed Rules
Assumptions Underlying this
Analysis: The DOL’s analysis assumes
that all benefits and costs would be
realized in the first year of the reporting
cycle to which the changes apply and
within each year thereafter. This
assumption is premised on the
requirement that each plan will be
required to file the Form 5500 Annual
Return/Report. The DOL has used a
‘‘status quo’’ baseline for this analysis,
assuming that the world in the future,
absent the proposed regulations, will
resemble the present. The DOL does not
anticipate that there will be material
one-time transition cost for learning or
updating systems during the first year in
which the reporting changes apply. The
proposal would largely apply
requirements currently in effect for large
MEPs to pooled employer plans and
DCGs. The financial services providers
and recordkeepers that be sponsoring
such plans and DCGs generally are
already providing Form 5500 filings
services for the employee benefit plans
they service so we do not anticipate
material start-up costs for them to file
Form 5500s on behalf of pooled
employer plans or DCGs. We also do not
anticipate that individual plans that
participate in a DCG reporting
arrangement would expend more time
to supply information to DCG reporting
arrangements during the first year than
what they currently incur to supply
annual reporting data to service
provides that prepare their annual
reports (and may in fact incur less time
even during the first year). Similarly,
the creation of the Schedule MEP
mostly reorganizes the way annual
reporting data is provided by affected
plans, rather than adding significant
additional information collection.
Similarly, the changes to the content of
the Schedules of Assets are calling for
reporting of a very limited number of
data elements that plans should already
have as part of the ordinary business
records. The DOL also expects that the
formatting changes being proposed to
make the Schedules of Assets more
usable will match formatting that filers
already use to file various other
schedules, and, accordingly, they would
not involve material costs for learning or
system adjustments. Moreover, the DOL
is proposing to permit (but not require)
certain attachments to Schedule MB and
SB to be provided in a tabular format
(spreadsheet) rather than PDF or TXT
formats. The DOL solicits comments on
whether filers would want a similar
option for the Schedules of Assets and
whether they believe such an option
would reduce reporting burdens,
including any potential transition cost.
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Further, with respect to the limited
number of additional questions for
defined benefit pension plans and Coderelated questions for pension plans
relate to existing compliance
obligations, those questions should not
entail material start-up or learning costs.
We also do not anticipate material
transition costs related to the proposed
changes related to reporting
participating employer information
which largely apply existing
requirements in the context of a new
schedule for some filers and as an
attachment to current filings for others.
Nonetheless, the DOL specifically
solicits comments on whether plans or
groups of plans anticipate a material
increase in such transition costs during
the first year.
Methodology: Mathematica Policy
Research, Inc. (MPR) developed the
underlying cost data, which has been
used by the Agencies in estimating
burden related to the Form 5500 Annual
Return/Report since 1999. See 65 FR
21068, 21077–78 (Apr. 19, 2000);
Borden, William S., Estimates of the
Burden for Filing Form 5500: The
Change in Burden from the 1997 to the
1999 Forms, Mathematica Policy
Research, submitted to DOL May 25,
1999.47 The cost information was
derived from surveys of filers and their
service providers, as modified due to
comments, which were used to measure
the unit cost burden of providing
various types of information. The DOL
has adjusted these unit costs since 1999
to account for changes to the forms and
schedules and increases in the cost of
labor and service providers since MPR
developed the initial data.
For this forms revision, the DOL used
the adjusted MPR unit cost data for
pension and non-health welfare plans.
The DOL developed the unit cost data
for group health plans using the best
available data. To develop unit costs for
DFEs, the DOL created weighted
averages of the unit costs for plans.
To obtain filer counts for pension
plans, welfare plans, and DFEs, the DOL
used historical counts of Form 5500
Annual Return/Report filers tabulated
by type and reported characteristics.
The DOL modeled its approach to
calculating burden on the approach
used during the 2009 forms revision and
the 2016 modernization proposal.48
47 The MPR report can be accessed at https://
mathematica.org/publications/estimates-of-theburden-for-filing-form-5500-the-change-in-burdenfrom-the-1997-to-the-1999-forms. See also
Technical Appendix: Documentation of Form 5500
Revision Burden Model at www.dol.gov/agencies/
ebsa/laws-and-regulations/rules-and-regulations/
technical-appendices.
48 See 72 FR 64731 (Nov. 16, 2007) and 81 FR
47496 (July 16, 2016).
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Aggregate burden estimates were
produced in both revisions by
multiplying the unit cost measures by
the filer count estimates. The
methodology is described in broad
terms below.
To estimate aggregate burdens, types
of plans with similar reporting
requirements were grouped together in
various groups and subgroups.
Calculations of aggregate cost were
prepared for each of the various
subgroups both under requirements in
effect prior to this action and under the
forms as revised. The universe of filers
was divided into four basic types:
Defined benefit pension plans, defined
contribution pension plans, welfare
plans, and DFEs. For the plans, each of
these major plan types was further
subdivided into multiemployer and
single-employer plans.49 Since the filing
requirements differ substantially for
small and large plans, the plan types
were also divided by plan size. For large
plans (100 or more participants), the
defined benefit plans were further
divided between very large (1,000 or
more participants) and other large plans
(at least 100 participants, but fewer than
1,000 participants). Small plans (less
than 100 participants) were divided
similarly, except that they were divided
into Form 5500–SF eligible and Form
5500–SF ineligible plans, as applicable.
Welfare plans were divided into group
health plans and plans that do not
provide any group health benefits, while
plans that provide group health benefits
and have fewer than 100 participants
were divided into fully insured group
health plans and unfunded,
combination unfunded/fully insured
plans, or funded with a trust group
health plans. DFEs were divided into
Master Trusts/MTIAs, CCTs, PSAs, 103–
12 IEs, GIAs, and DCGs. For each of
these sets of respondents, burden hours
per respondent were estimated for the
Form 5500 Annual Return/Report itself
and up to seven schedules or the Form
5500–SF (and the Schedule SB, for
Form 5500–SF eligible defined benefit
pension plans).
We also separately estimated the costs
for each of the forms and schedules that
are part of the Form 5500 Annual
Return/Report. When items on a
schedule are required by more than one
Agency, the estimated burden
associated with that schedule is
allocated among the Agencies. This
allocation is based on how many items
are required by each agency. The burden
associated with reading the instructions
49 For purposes of this analysis, multiple
employer plans were treated as single employer
plans.
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for each item also is tallied and
allocated accordingly.
The reporting burden for each type of
plan is estimated in light of the
circumstances that are known to apply
or that are generally expected to apply
to such plans, including plan size,
funding method, usual investment
structures, and the specific items and
schedules such plans ordinarily
complete. For example, a large singleemployer defined benefit pension plan
that is intended to be tax-qualified that
has insurance products among its
investments and whose service
providers received compensation above
the Schedule C reporting thresholds
would be required to submit an annual
report completing almost all the line
items of the Form 5500, plus Schedule
A (Insurance Information), Schedule SB
(Single Employer Defined Benefit Plan
Actuarial Information), Schedule C
(Service Provider Information), possibly
the Schedule G (Financial Transaction
Schedules), Schedule H (Financial
Information), and Schedule R
(Retirement Plan Information), and
would be required to submit an IQPA
report. In this way, the Agencies intend
meaningfully to estimate the relative
burdens placed on different categories
of filers.
Burden estimates were adjusted for
the proposed revisions to each schedule,
including items added or deleted in
each schedule and items moved from
one schedule to another.
The DOL has not attributed a
recordkeeping burden to the 5500 Forms
in this analysis or in the Paperwork
Reduction Act analysis because it
believes that plan administrators’
practice of keeping financial records
necessary to complete the 5500 Forms
arises from usual and customary
management practices that would be
used by any financial entity and does
not result from ERISA or Code annual
reporting and filing requirements.
The aggregate baseline burden is the
sum of the burden per form and
schedule as filed prior to this action
multiplied by the estimated aggregate
number of forms and schedules filed.50
The DOL estimated the burden impact
of changes in the numbers of filings and
of changes made to the form and the
various schedules. The burden estimates
use data from the Form 5500 Annual
Return/Report for plan year 2018, which
50 Some filers are eligible to file the Form 5500–
SF, but choose to file a Form 5500 and attach
Schedule I and/or other schedules because they
find it less burdensome to do so in their particular
situation. Counts of these filings are adjusted to
reflect what they would have filed if they had
chosen to file the Form 5500–SF.
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is the most recent year for which
complete data is available.
1.4. Uncertainty
The SECURE Act created pooled
employer plans and directed the
Departments to make available
consolidated reporting for defined
contribution pension plans that meet
certain requirements. Due to these
proposed rules designed to implement
the SECURE Act, as well as the DOL’s
final rules with respect to association
retirement plans and PEO-sponsored
plans, the DOL assumes that these types
of entities will file a Form 5500 and
report the number of participating
employers, numbers of covered
participants, and amount of assets in the
future. However, until they file, the
Departments face significant uncertainty
about the number of each type of entity
and whether they are merely providing
coverage in a different manner than was
already provided by employers to their
employees through single employer
plans or already existing MEPs
(including association retirement plans
and PEOs) or whether with the
availability of additional commercial
arrangements and plans, more
employers will establish plans for their
employees.
While pooled plan providers have
filed a Form PR and list plans they are
forming, they do not report the number
of participating employers. The DOL has
identified 611,568 defined contribution
plans that reported code 3D, of which
499,234 are considered small defined
contribution plans filing the Form
5500–SF as possible plans that could
join a DCG or a pooled employer plan.
However, the decision depends not only
on cost savings, and administrative ease,
but also on employers’ preferences and
perceptions about the advantages and
disadvantages of joining either group or
neither.
The Departments request information
that will help improve its current
estimates of the numbers of affected
entities, employers and the burdens
they will experience due to these
proposed rules.
1.5. Alternatives
As described above, the DOL
proposed changes to Title I annual
reporting requirements primarily are
designed to implement statutory
changes enacted as part of the SECURE
Act. The DOL considered several
alternative approaches to address these
statutory changes, including:
• Not requiring an audit for large
plans that are part of a DCG reporting
arrangement, and instead requiring just
an audit of the DCG’s trust. Including
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51301
more or fewer questions on the
Schedule DCG and the Schedule MEP.
• Including more or fewer questions
for defined benefit plans on issues
under Title IV of ERISA or questions for
retirement plans on Internal Revenue
Code compliance issues.
• Not adding new content elements to
the Schedules of Assets and not
requiring the Schedules of Assets to be
filed in a data-capturable format.
• Not changing the methodology for
participant count for determining
whether a defined contribution
retirement plan is subject to the annual
reporting requirements applicable to
large plans versus small plans.
• Allowing a DCG with under 100
total participants to file as a small plan
rather than requiring all DCGs to
generally follow the annual reporting
requirements applicable to large plans—
i.e., Form 5500, Schedule A (if
applicable), Schedule I, Schedule R (if
applicable)—no IQPA audit, and no
detailed supplemental schedules.
• Not requiring non-plan MEWAs
and/or non-group health MEWA plans
report the participating plan
information on the Form M–1 and Form
5500, respectively.
While slightly less burdensome than the
proposed rule’s requirements, requiring
fewer data elements or less transparent
and usable data filing requirements
would provide substantially less
information to the DOL, which would
impede its ability to fulfill its critical
oversight role of protecting participants
and plan assets. Employers in DCGs and
MEPs also would receive less
information to survey the market when
choosing a DCG or pooled plan provider
or deciding whether to continue to rely
on an existing provider. Less
information and less usable data filing
requirements would also not have as
effectively served the interests of other
users of Form 5500 data, including the
IRS, PBGC, other Federal agencies,
Congress, and the private sector who
use the Form 5500 filings as an
important source of information and
data in assessing employee benefit, tax,
and economic trends and policies.51
2. Paperwork Reduction Act Statement
As part of its continuing effort to
reduce paperwork and respondent
51 Section 1 of ERISA states the ‘‘Congressional
findings and declaration of policy.’’ Of relevance to
our consideration of these alternatives, section (b)
states, in relevant part: ‘‘It is hereby declared to be
the policy of this chapter to protect interstate
commerce and the interests of participants in
employee benefit plans and their beneficiaries, by
requiring the disclosure and reporting to
participants and beneficiaries of financial and other
information with respect thereto . . . .’’ 29 U.S.C.
1001(b).
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burden, the DOL conducts a
preclearance consultation program to
allow the general public and Federal
agencies to comment on proposed and
continuing collections of information in
accordance with the Paperwork
Reduction Act of 1995 (PRA).52 This
helps to ensure that requested data will
be provided in the desired format,
reporting burden (time and financial
resources) will be minimized, collection
instruments will be clearly understood,
and the impact of collection
requirements on respondents is properly
assessed. Currently, the DOL is
soliciting comments concerning the
proposed revision of the Form 5500
Annual Return/Report, which is an
information collection request (ICR)
subject to the PRA. The accompanying
Notice of Proposed Forms Revisions
includes a separate PRA discussion that
includes tables breaking out the average
time for filing the Form 5500, Form
5500–SF, and each schedule, broken
down by pension plans (sub-grouped by
large plans filing the Form 5500, small
plan filing the Form 5500, small plan
filing the Form 5500–SF), welfare plans
that include health benefits (subgrouped by large plans and small,
unfunded, combination unfunded/fully
insured, or funded with a trust 5500–
SF), welfare plans that do not include
health benefits (sub-grouped by large
plans filing the Form 5500, small plan
filing the Form 5500, small plan filing
the Form 5500–SF), and DFEs (subgrouped by master trusts, CCTs, PSAs,
103–1IEs, GIAs, and DCGs). The
discussion also includes a table with the
estimated PRA burdens attributable the
Form 5500 Annual Return/Report
broken down by the portions allocated
to the DOL and the IRS. The DOL is also
submitting revisions to the Form M–1
and Summary Annual Report ICRs. A
copy of the ICRs may be obtained by
contacting the person listed in the PRA
Addressee section below. The DOL has
submitted a copy of the proposed
revisions to the Office of Management
and Budget (OMB) in accordance with
44 U.S.C. 3507(d) for its review of the
DOL’s information collection. The DOL
and OMB are particularly interested in
comments that:
• Evaluate whether the collection of
information is necessary for 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
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 electronically delivered
responses).
Comments should be sent to the
Office of Information and Regulatory
Affairs, Office of Management and
Budget, Room 10235, New Executive
Office Building, Washington, DC 20503
and marked ‘‘Attention: Desk Officer for
the Employee Benefits Security
Administration.’’ Comments can also be
submitted by Fax: 202–395–5806 (this is
not a toll-free number), or by email:
OIRA_submission@omb.eop.gov. OMB
requests that comments be received by
October 15, 2021, which is 30 days from
publication of the proposed rule to
ensure their consideration.
PRA Addressee: Address requests for
copies of the ICRs to James Butikofer,
Office of Regulations and
Interpretations, U.S. Department of
Labor, Employee Benefits Security
Administration, 200 Constitution
Avenue NW, Room N–5655,
Washington, DC 20210. Telephone:
(202) 693–8410; Fax: (202) 219–4745;
Email: ebsa.opr@dol.gov. These are not
toll-free numbers. ICRs submitted to
OMB also are available at https://
www.RegInfo.gov.
3. Regulatory Flexibility Act
The Regulatory Flexibility Act
(RFA) 53 imposes certain requirements
with respect to Federal rules that are
subject to the notice and comment
requirements of section 553(b) of the
Administrative Procedure Act 54 and are
likely to have a significant economic
impact on a substantial number of small
entities. Unless an agency determines
that a proposal is not likely to have a
significant economic impact on a
substantial number of small entities,
section 603 of the RFA requires the
agency to present an initial regulatory
flexibility analysis (IRFA) of the
proposed rule. The DOL has determined
that this proposed rule is likely to have
a significant impact on a substantial
number of small entities. Therefore, the
DOL provides its IRFA of the proposed
rule, below.
For purposes of this IRFA, an entity
is considered a small entity if it is an
employee benefit plan with fewer than
53 5
52 44
U.S.C. 3506(c)(2)(A) (1995).
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54 5
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U.S.C. 601 et seq. (1980).
U.S.C. 551 et seq. (1946).
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Sfmt 4702
100 participants.55 The definition of
small entity considered appropriate for
this purpose differs, however, from a
definition of small business that is
based on size standards promulgated by
the Small Business Administration
(SBA) (13 CFR 121.201) pursuant to the
Small Business Act (15 U.S.C. 631 et
seq.). The basis of EBSA’s definition of
a small entity for this IRFA is found in
section 104(a)(2) of ERISA, which
permits the Secretary to prescribe
simplified annual reports for pension
plans that cover fewer than 100
participants. The DOL has consulted
with the SBA Office of Advocacy
concerning use of this participant count
standard for RFA purposes.56 The DOL
seeks comment on the appropriateness
of continuing to use this size standard.
The following subsections address
specific components of an IRFA, as
required by the RFA.
3.1. Need for and Objectives of the Rule
This proposal would amend the
DOL’s reporting regulations relating to
the annual reporting and disclosure
requirements to implement the forms
changes that are set forth in the NPFR
published concurrently with this notice
of proposed rulemaking. DOL strives to
tailor reporting requirements to
minimize reporting costs, while
ensuring that the information necessary
to secure ERISA rights is adequately
available. The optimal design for
reporting requirements changes over
time. In addition, the technologies
available to manage and transmit
information continually advance.
55 While some large employers may have small
plans, in general, small employers maintain most
small plans. The Form 5500 Annual Return/Report
impacts any employer in any private sector industry
who chooses to sponsor a plan. The DOL is unable
to locate any data linking employer revenue to
plans to determine the relationship between small
plans and small employers in industries whose SBA
size standard is revenue-based. For a separate
project, the DOL purchased data on ESOPs that file
the Form 5500 and on defined contribution pension
plans that file the Form 5500–SF from Experian
Information Solutions, Inc. The Experian dataset
provides the number of employees for the plan
sponsor. By merging these data with internal DOL
data sources, the DOL determined the relationship
between small plans and small employers in
industries whose SBA size standard is based on a
threshold number of employees that varies from 100
to 1,500 employees. Based on these data, the DOL
estimates that over 97 percent of small retirement
plans and over 80 percent of small health plans are
sponsored by employers with fewer than 100
employees. The DOL estimates that over 99 percent
of small retirement plans and over 97 percent of
small health plans are sponsored by employers with
fewer than 1,500 employees. Thus, the DOL
believes that assessing the impact of these proposed
rules on small plans is an appropriate substitute for
evaluating the effect on small entities.
56 Memorandum received from the U.S. Small
Business Administration, Office of Advocacy on
July 10, 2020.
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Therefore, it is incumbent on the
Agencies to revise their reporting
requirements from time to time to keep
pace with such changes. The proposed
forms revisions, and associated DOL
regulatory amendments in the proposal,
are intended to implement the reporting
requirements required by the SECURE
Act, taking into account certain recent
changes in markets, other law, and
technology, many of which are referred
to above in this document.
3.2. Affected Small Entities
The proposal would change the
current method of counting covered
participants for purposes of determining
when a defined contribution plan may
file as a small plan and whether the
plan may be exempt from the audit
requirement from the current
requirement. Specifically, the proposal
would allow plans to count just the
number of participants/beneficiaries
51303
with account balances as of the
beginning of the plan year, as compared
to the current rule that counts all the
employees eligible to participant in the
plan. This change would allow an
estimated 19,442 large defined
contribution plans to be re-defined and
file as small defined contribution plans.
The estimated distribution of these
plans by amount of assets is shown in
Table 6.
TABLE 6—DISTRIBUTION OF LARGE DC PENSION PLANS TO BE REDEFINED AS SMALL FILERS, BY TYPE OF PLAN AND
AMOUNT OF ASSETS, 2018
Amount of assets
Total
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Total Plans .................................................................................................
None or not reported .................................................................................
$1–24K .......................................................................................................
25–49K .......................................................................................................
50–99K .......................................................................................................
100–249K ...................................................................................................
250–499k ...................................................................................................
500–999K ...................................................................................................
1–2.49M .....................................................................................................
2.5–4.9M ....................................................................................................
5–9.9M .......................................................................................................
10–24.9M ...................................................................................................
25–49.9M ...................................................................................................
50–74.9M ...................................................................................................
75–99.9M ...................................................................................................
100–149.9M ...............................................................................................
150–199.9M ...............................................................................................
200–249.9M ...............................................................................................
250–499.9M ...............................................................................................
500–999.9M ...............................................................................................
1–2.49B ......................................................................................................
As described in the regulatory impact
analysis, above, the DOL estimates that
100 DCGs will form in the first year,
filing for 15,350 small plans. These
plans would no longer need to file a
Form 5500 or Form 5500–SF; their DCG
filing a complete Form 5500 Annual
Return/Report in accordance with its
instructions, including the requirement
to include the proposed Schedule DCG
for each individual participating plan,
would satisfy the reporting
requirements for those plans. There also
may be some cases in which sponsors of
small plans decide to instead participate
in the pooled employer plan, which
would also result in a number of small
plans either being terminated or
possibly merged into the pooled
employer plan and no longer filing a
Form 5500 or Form 5500–SF. As
discussed above, the DOL is estimating
that 2,251 small employers/plans will
join a pooled employer plan.57
57 For the calculation of the total number of
employers in pooled employer plans it is first
assumed that 80 percent of all the employers who
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Singleemployer
plans
19,442
50
221
183
312
816
1,276
2,561
6,158
4,790
2,316
592
80
26
12
9
13
8
12
4
2
Due to the change in the requirements
to be considered a small plan on the
basis of account balance, in total,
approximately 609,695 defined
contribution pension plans covering
fewer than 100 participants with
account balances would be eligible to
comply with annual reporting
requirements applicable to small plans,
where previously approximately
590,254 defined contribution plans were
filing as small plans. In this regard, in
total there would be now 648,837 small
plans where previously were 629,397.
Estimates of the number of small
would participate in a pooled employer plan are
currently providing benefits through small plans,
and the remaining 20 percent through large plans.
This distribution would apply to the registrant that
has already exceptionally listed 2000 employers
(which would then be divided in 1600 small
participating plans and 400 large participating
plans) and to the other 74 pooled plan providers
assumed to be created. As explained, it is also
assumed that each one of these other 74 pooled
plan providers would be servicing in total 11
employers. Therefore, the total number of small
participating plans in a pooled employer plan is
calculated as: 1,600 + (74 * 11 * 0.8) = 2,251
(rounded).
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Sfmt 4702
18,974
50
220
182
306
800
1,260
2,522
6,049
4,683
2,259
556
53
12
6
6
4
3
1
3
1
Multiemployer
plans
Multipleemployer
plans
134
..............................
..............................
..............................
2
3
2
4
3
7
10
27
25
14
6
3
9
5
11
1
1
334
........................
1
1
4
13
14
34
106
100
48
10
2
........................
........................
........................
........................
........................
........................
........................
........................
pension plans are based on 2018 Form
5500 filing data.
Additionally, the proposed changes in
annual reporting requirements would
affect MEWAs. In the 2018 calendar
year, there were 143 plan MEWAs and
six non-plan MEWAs with fewer than
100 participants that filed a Form M–
1.58
3.3. Impact of the Rule
While many small plans could
experience a reduced burden as a result
of the proposed changes, it is the 20,005
large plans filing under the proposed
regulations, that we estimate would
experience a significant impact.
Specifically, 19,442 defined
contribution plans due to the change in
the definition of who can file as a small
plan and be eligible for an audit waiver,
58 These calculations are based on internal DOL
calculations based on 2018 Form M–1 filings. In
2018, of the 640 total plan MEWAs, 143 reported
having fewer than 100 participants, of which 69 had
zero participants. Of the 47 non-plan MEWAs, six
reported having fewer than 100 participants all of
which had zero participants.
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and 563 large participating plans that
could provide benefits through pooled
employer plans and be covered by the
pooled employer plan single audit
rather than a separate audit if they
sponsored their own single employer
plan. An estimated 11,362 of those
affected large plans currently provide
the IQPA report and audited financial
statements that would save in audit
costs under the proposal.59 There is
variation in filing requirements based
on the characteristics of a plan and
types of assets held. However, these
plans would no longer need to attach
the IQPA report (audit) and other
schedules required of large plans with
its annual return/report. As described
earlier in this document,60 the
Department estimates that there could
be an audit cost reduction of $7,500 for
each one of these 11,362 plans. Plans
may still conduct an audit, even if there
is no requirement. It is estimated that 25
percent of plans could still conduct an
audit. Data on the cost of an audit for
these plans is not known and will vary
based on plan size and complexity. An
estimate of $7,500 is used to estimate
the cost savings per year. These plans
also would no longer be required to file
the Schedule H, but would need to file
the Schedule I. The difference in burden
between filing Schedule H and
Schedule I is estimated to be $770 per
year.61
Table 6 above shows that number of
plans by the amount of assets in the
plans. This shows an estimate of 5,369
plans (those with less than $1 million in
assets) that would see a costs savings of
about one percent of plan assets.62
The establishment of DCGs, the use of
Schedules DCG ($178 per plan),
Schedule MEP ($20 for most MEPs and
$26 per pooled employer plan), and the
other changes could impact a
substantial number of small plans, as
discussed above, but the impacts per
plan are small in magnitude and do not
59 To estimate the number of large plans currently
providing the IQPA report and audited financial
statements the DOL identified those large plans are
most likely to be re-defined as small plans and have
filed Schedule H in 2018, as estimated on the 2018
Form 5500 Pension Research Files. Note that an 80
to 120 participant transition provision allows a plan
that covers fewer than 100 participants to continue
taking advantage of the simplified option or
exemption, as applicable, until they reach 121
participants, therefore not all plans with 100 or
more participants will file a plan in a given year.
60 See fns. 47–49 supra.
61 The methodology DOL uses results in estimates
that it will take a small pension plan approximately
12 hours to file a Schedule H, compared to two
hours and six minutes to file a Schedule I. See
‘‘Methodology’’ section starting, supra, at page 56
for a discussion of the burden estimating
methodology.
62 Plan asset data reflects data reported on 2018
Form 5500 filings.
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meet the qualifications for a significant
impact for this analysis.
3.4. Duplicate, Overlapping, or Relevant
Federal Rules
The DOL is unaware of any relevant
Federal rules for small plans that
duplicate, overlap, or conflict with these
regulations.
3.5. Description of Steps Taken To
Minimize the Impact on Small Entities
These proposed regulations and
related changes to the Form 5500
Annual Return/Report generally
implement or otherwise relate to
SECURE Act changes to ERISA and the
Code, and do not include significant
modifications to existing small plan
simplified reporting options other than
expanding the number of plans that will
be eligible for simplified reporting
options by reason of the proposed
change in the method of counting
participants for determining small plans
versus large plan status. Small pension
plans that are invested in ‘‘eligible’’
plan assets and otherwise meet certain
requirements are able to use a simplified
reporting option of filing Form 5500–SF,
which was established by regulation in
part to comply with provisions of the
Pension Protection Act requiring a
simplified form of reporting for plans
with fewer than 25 participants. In light
of the fact that the majority of small
plans required to file an ERISA annual
report cover fewer than 25 participants,
the simplified reporting option also
constitutes the Department’s efforts to
further reduce the information
collection burden for small business
concerns with fewer than 25 employees,
pursuant to the Small Business
Paperwork Relief Act of 2002, Public
Law 107–198, see 44 U.S.C. 3506 (c)(4).
The Department, in developing the
proposed regulatory changes for Form
5500 filings by DCGs, carried forward an
audit waiver for small plans
participating in a DCG consolidated
Form 5500 filing. We also, in
developing the Schedule MEP filing
requirements for pooled employer plans
and other MEPs, did not expand small
plan reporting requirements. We
generally limited the information
collection to consolidating information
onto the Schedule MEP information that
is already reported elsewhere by MEPs
on the current Form 5500, as discussed
elsewhere in this preamble and in the
NPFR. Overall, the DOL believes that
the proposed changes to the reporting
requirements reduce the burden on
small plans, while allowing the DOL to
collect sufficient information for it to
fulfill its statutory responsibilities.
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4. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 requires each
Federal agency to prepare a written
statement assessing the effects of any
Federal mandate in a proposed or final
agency rule that may result in an
expenditure of $100 million or more
(adjusted annually for inflation with the
base year 1995) in any one year by State,
local, and tribal governments, in the
aggregate, or by the private sector.63 For
purposes of the Unfunded Mandates
Reform Act, as well as Executive Order
12875,64 this proposal does not include
any Federal mandate that the DOL
expects would result in such
expenditures by State, local, or tribal
governments, or the private sector.
5. Federalism Statement
Executive Order 13132 outlines
fundamental principles of federalism,
and requires the adherence to specific
criteria by Federal agencies in the
process of their formulation and
implementation of policies that have
‘‘substantial direct effects’’ on the
States, the relationship between the
National Government and States, or on
the distribution of power and
responsibilities among the various
levels of government.65 Federal agencies
promulgating regulations that have
federalism implications must consult
with State and local officials and
describe the extent of their consultation
and the nature of the concerns of State
and local officials in the preamble to the
rule.
In the DOL’s view, these proposed
regulations would not have federalism
implications because they would not
have direct effects on the States, on the
relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among various levels of
government. These proposed rules do
not have federalism implications
because they would have no substantial
direct effect on the States, on the
relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Section 514 of
ERISA provides, with certain exceptions
specifically enumerated, that the
provisions of Titles I and IV of ERISA
supersede any and all laws of the States
as they relate to any employee benefit
plan covered under ERISA. The
requirements proposed to be
63 2
U.S.C. 1501 et seq. (1995).
the Intergovernmental Partnership,
58 FR 58093 (Oct. 28, 1993).
65 Federalism, supra note 6.
64 Enhancing
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implemented in these rules do not alter
the fundamental provisions of the
statute with respect to employee benefit
plans, and as such would have no
implications for the States or the
relationship or distribution of power
between the National Government and
the States. The DOL welcomes input
from affected States regarding this
assessment.
List of Subjects in 29 CFR Part 2520
Accounting, Employee benefit plans,
Freedom of information, Pensions,
Public assistance programs, Reporting
and recordkeeping requirements.
For the reasons discussed in the
preamble, 29 CFR part 2520 is proposed
to be amended as follows:
PART 2520—RULES AND
REGULATIONS FOR REPORTING AND
DISCLOSURE
1. The authority citation for part 2520
is revised to read as follows:
■
Authority: 29 U.S.C. 1002(44), 1021–1025,
1027, 1029–31, 1059, 1134, and 1135; and
Secretary of Labor’s Order 1–2011, 77 FR
1088. Sec. 2520.101–2 also issued under 29
U.S.C. 1132, 1181–1183, 1181 note, 1185,
1185a–b, 1191, and 1191a–c. Sec. 2520.101–
5 also issued under 29 U.S.C. 1021 note; sec.
501, Pub. L. 109–280, 120 Stat. 780; sec.
105(a), Pub. L. 110–458, 122 Stat. 5092. Secs.
2520.102–3, 2520.104b–1, and 2520.104b–3
also issued under 29 U.S.C. 1003, 1181–1183,
1181 note, 1185, 1185a–b, 1191, and 1191a–
c. Secs. 2520.104b–1 and 2520.107 also
issued under 26 U.S.C. 401 note; sec. 1510,
Pub. L. 105–34, 111 Stat. 1068.
2. In § 2520.103–1, revise paragraphs
(a)(2), (b) introductory text, (b)(1), (c)(1),
(c)(2)(i), and (c)(2)(ii)(D) and (E) and add
paragraphs (c)(2)(ii)(F) and (G) to read as
follows:
■
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§ 2520.103–1
report.
Contents of the annual
(a) * * *
(2) Under the authority of subsections
104(a)(2), 104(a)(3), and 110 of the Act,
section 1103(b) of the Pension
Protection Act of 2006, and section 202
of the SECURE Act, a simplified report,
limited exemption, or alternative
method of compliance is prescribed for
employee welfare and pension benefit
plans, as applicable. A plan filing a
simplified report or electing the limited
exemption or alternative method of
compliance shall file an annual report
containing the information prescribed in
paragraph (b) or (c) of this section, as
applicable, and shall furnish a summary
annual report as prescribed in
§ 2520.104b–10.
(b) Contents of the annual report for
plans with 100 or more participants
electing the limited exemption or
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alternative method of compliance.
Except as provided in paragraphs (d)
and (f) of this section and in
§§ 2520.103–2, 2520.103–14, and
2520.104–44, the annual report of an
employee benefit plan covering 100 or
more participants at the beginning of the
plan year which elects the limited
exemption or alternative method of
compliance described in paragraph
(a)(2) of this section shall include:
(1) A Form 5500 ‘‘Annual Return/
Report of Employee Benefit Plan’’ and
any statements or schedules required to
be attached to the form, completed in
accordance with the instructions for the
form, including Schedule A (Insurance
Information), Schedule C (Service
Provider Information), Schedule D
(DFE/Participating Plan Information),
Schedule G (Financial Transaction
Schedules), Schedule H (Financial
Information), Schedule SB (SingleEmployer Defined Benefit Plan
Actuarial Information), Schedule MB
(Multiemployer Defined Benefit Plan
and Certain Money Purchase Plan
Actuarial Information), Schedule MEP
(Multiple Employer Plan), Schedule R
(Retirement Plan Information), and
other financial schedules described in
§ 2520.103–10. See the instructions for
this form.
*
*
*
*
*
(c) * * *
(1) Except as provided in paragraphs
(c)(2), (d), (e), and (f) of this section, and
in §§ 2520.103–14, 2520.104–51,
2520.104–43, 2520.104–44, 2520.104a–
6, and 2520.104a–9, the annual report of
an employee benefit plan that covers
fewer than 100 participants at the
beginning of the plan year shall include
a Form 5500 ‘‘Annual Return/Report of
Employee Benefit Plan’’ and any
statements or schedules required to be
attached to the form, completed in
accordance with the instructions for the
form, including Schedule A (Insurance
Information), Schedule D (DFE/
Participating Plan Information),
Schedule I (Financial Information—
Small Plan), Schedule SB (Single
Employer Defined Benefit Plan
Actuarial Information), Schedule MB
(Multiemployer Defined Benefit Plan
and Certain Money Purchase Plan
Actuarial Information), Schedule MEP
(Multiple Employer Plan), and Schedule
R (Retirement Plan Information). See the
instructions for this form.
(2)(i) The annual report of an
employee pension benefit plan or
employee welfare benefit plan and that
covers fewer than 100 participants at the
beginning of the plan year and that
meets the conditions in paragraph
(c)(2)(ii) of this section with respect to
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51305
a plan year may, as an alternative to the
requirements of paragraph (c)(1) of this
section, meet its annual reporting
requirements by filing the Form 5500–
SF ‘‘Short Form Annual Return/Report
of Small Employee Benefit Plan’’ and
any statements or schedules required to
be attached to the form, Schedule SB
(Single Employer Defined Benefit Plan
Actuarial Information) and Schedule
MB (Multiemployer Defined Benefit
Plan and Certain Money Purchase Plan
Actuarial Information), completed in
accordance with the instructions for the
form. See the instructions for this form.
(ii) * * *
(D) Is not a multiemployer plan;
(E) Is not a plan subject to the Form
M–1 requirements under § 2520.101–2;
(F) Is not a multiple employer pension
plan, including a pooled employer plan
described in section 3(43) of the Act and
a multiple employer defined
contribution pension plan described in
§ 2510.3–55 of this chapter; and
(G) Is not a DCG reporting
arrangement described in § 2520.104–
51.
*
*
*
*
*
■ 3. In § 2520.103–5, revise paragraph
(a) introductory text to read as follows:
§ 2520.103–5 Transmittal and certification
of information to plan administrator for
annual reporting purposes.
(a) General. In accordance with
section 103(a)(2) of the Act, an
insurance carrier or other organization
which provides benefits under the plan
or holds plan assets, a bank or similar
institution which holds plan assets, or
a plan sponsor shall transmit and certify
such information as needed by the
administrator to file the annual report
under section 104(a)(1) of the Act and
§ 2520.104a–5, § 2520.104a–6, or
§ 2520.104a–9:
*
*
*
*
*
■ 4. In § 2520.103–10:
■ a. Revise paragraphs (a) and (b)(1) and
(2);
■ b. Redesignate paragraph (c) as
paragraph (d);
■ c. Add a new paragraph (c); and
■ d. In newly redesiganted pargraph (d),
remove ‘‘paragraphs (b)(1), (b)(2) or
(b)(6)’’ and add ‘‘paragraph (b)(1), (2), or
(6)’’ in its place.
The revisions and addition read as
follows:
§ 2520.103–10
schedules.
Annual report financial
(a) General. The administrator of a
plan filing an annual report pursuant to
§ 2520.103–1(a)(2), the report for a
group insurance arrangement pursuant
to § 2520.103–2, or the report for a
defined contribution pension plan
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group (DCG) reporting arrangement
pursuant to § 2520.103–14, shall, as
provided in the instructions to the Form
5500 ‘‘Annual Return/Report of
Employee Benefit Plan,’’ include as part
of the report the separate financial
schedules described in paragraph (b) of
this section.
(b) * * *
(1) Assets held for investment. (i) A
schedule of all assets held for
investment purposes at the end of the
plan year (see § 2520.103–11) with
assets aggregated and identified by:
(A) Identity of issue, borrower, lessor
or similar party to the transaction
(including a notation as to whether such
party is known to be a party in interest);
(B) Description of investment
including maturity date, rate of interest,
collateral, par, or maturity value;
(including whether the investment is a
hard-to-value asset);
(C) Cost;
(D) Current value, and, in the case of
a loan, the payment schedule;
(E) The asset category in which the
asset was reported on the Schedule H;
(F) The Central Index Key (CIK)
number, Legal Entity Identifier (LEI)
Code, or National Association of
Insurance Commissioners (NAIC)
Company Code, or other government
registration or identity number for the
investment described in paragraphs
(b)(1)(i)(A) and (B) of this section, or if
no government number is available, a
market or exchange registration or
identity number; and
(G) In the case of individual account
plans, whether the investment is a
designated investment alternative (DIA)
or a qualified default investment
alternative (QDIA), and for each such
DIA and QDIA with respect to which
the return is not fixed, the total annual
operating expenses on the latest 404a–
5 statement provided to participants
during the plan year.
(ii) [Reserved]
(2) Assets acquired and disposed
within the plan year. (i) A schedule of
all assets acquired and disposed of
within the plan year (see § 2520.103–11)
with assets aggregated and identified by:
(A) Identity of issue, borrower, issuer
or similar party;
(B) Descriptions of investment
including maturity date, rate of interest,
collateral, par, or maturity value;
(C) Cost of acquisitions; and
(D) Proceeds of dispositions.
(ii) [Reserved]
*
*
*
*
*
(c) Presentation of investment assets
in commingled trusts and direct filing
entities (DFEs). (1) Except as provided
in the Form 5500 and the instructions
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17:03 Sep 14, 2021
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thereto or for filings by direct filing
entities or DCG reporting arrangements,
in the case of assets or investment
interests of two or more plans
maintained in one trust, entries on the
schedule of assets held for investment
purposes at the end of the plan year and
the schedule of assets acquired and
disposed of during the plan year shall
be completed by including the plan’s
allocable portion of the trust.
(2) In the case of direct filing entities
and DCG reporting arrangements
required to file a schedule of assets held
for investment purposes at the end of
the plan year and the schedule of assets
acquired and disposed of during the
plan year, the entries on the schedules
shall be completed by including the
assets held by the DFE or in the DCG
reporting arrangement’s trust and shall
include the number of plans with an
allocable interest in each listed
investment.
*
*
*
*
*
■ 5. Add § 2520.103–14 to read as
follows:
§ 2520.103–14 Contents of the annual
report for defined contribution pension plan
group (DCG) reporting arrangements.
(a) General. A defined contribution
pension plan group reporting
arrangement as described in § 2520.104–
51(c) (‘‘DCG reporting arrangement’’)
that files a consolidated annual report
pursuant to § 2520.104–51 shall include
in such report the items set forth in
paragraph (b) of this section, and shall
furnish a summary annual report as
prescribed in § 2520.104b–10.
(b) Contents of the annual report for
DCG reporting arrangement. (1) A Form
5500 ‘‘Annual Return/Report of
Employee Benefit Plan’’ and any
statements or schedules required to be
attached to the form, completed in
accordance with the instructions for the
form, including Schedule A (Insurance
Information), Schedule C (Service
Provider Information), Schedule D
(DFE/Participating Plan Information),
Schedule G (Financial Transaction
Schedules), Schedule H (Financial
Information), Schedule DCG (Individual
Plan Information), Schedule R
(Retirement Plan Information), and the
other financial schedules referred to in
§ 2520.103–10, completed in accordance
with the instructions for the form.
(2) A report of an independent
qualified public accountant for the DCG
trust.
(3) Separate financial statements for
the DCG reporting arrangement trust
described in § 2520.104–51(c)(2)(i) (in
addition to the information required by
paragraph (b)(1) of this section), if such
financial statements are prepared in
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order for the independent qualified
public accountant to form the opinion
required by section 103(a)(3)(A) of the
Act and paragraph (b)(6) of this section.
These financial statements shall include
the following:
(i) A statement of all trust assets and
liabilities at current value presented in
comparative form for the beginning and
end of the year. The statement of trust
assets and liabilities shall include the
assets and liabilities required to be
reported on the Form 5500; however,
the assets and liabilities may be
aggregated into categories in a manner
other than that used on Form 5500.
(ii) Separate or combined statements
of all trust income and expenses and
changes in net assets, which includes
the categories of income, expense, and
changes in assets required to be reported
on the Form 5500; however, the income,
expense, and changes in assets may be
aggregated into categories in a manner
other than that used on Form 5500.
(4) Notes to the financial statements
described in paragraph (b)(1) or (2) of
this section which contain a description
of the accounting principles and
practices reflected in the financial
statements and, if applicable, variances
from generally accepted accounting
principles; a description of the DCG
reporting arrangement including any
significant changes in the arrangement
made during the period and the impact
of such changes on benefits; a
description of material lease
commitments, other commitments, and
contingent liabilities; a description of
agreements and transactions with
persons known to be parties in interest;
a general description of priorities upon
termination of the DCG reporting
arrangement; an explanation of the
differences, if any, between the
information contained in the separate
financial statements and the assets,
liabilities, income, expenses and
changes in net assets as required to be
reported on the Form 5500; and any
other matters necessary to fully and
fairly present the financial condition of
the DCG reporting arrangement.
(5) In the case of a DCG reporting
arrangement some or all of the assets of
which are held in a pooled separate
account maintained by an insurance
carrier, or in a common or collective
trust maintained by a bank, trust
company or similar institution, a copy
of the annual statement of assets and
liabilities of such account or trust for
the fiscal year of the account or trust
which ends with or within the plan year
for which the annual report is made as
required to be furnished by such
account or trust under § 2520.103–5(c).
See §§ 2520.103–3 and 2520.103–4 for
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reporting requirements for plans some
or all of the assets of which are held in
a pooled separate account maintained
by an insurance company, or a common
or collective trust maintained by a bank
or similar institution, and see
§ 2520.104–51(b)(2) for when the term
‘‘DCG reporting arrangement’’ or ‘‘DCG’’
shall be used in place of the term
‘‘plan.’’
(6) In the case of a plan participating
in a DCG reporting arrangement
covering 100 or more participants at the
beginning of the plan year, the Schedule
DCG for each participating plan shall
include the following as provided in the
instructions to the Schedule DCG:
(i) A report of an independent
qualified public accountant for the
participating plan.
(ii) Separate financial statements and
financial schedules described in
§ 2520.103–10 for the plan, if such
financial statements and schedules are
prepared in order for the independent
qualified public accountant to form the
opinion required by section 103(a)(3)(A)
of the Act and paragraph (b)(6) of this
section. The financial statement shall
include the information set forth in
§ 2520.103–1(b)(2).
(iii) Notes to the financial statements
described in paragraph (b)(2)(i) of this
section, which contain the information
set forth in § 2520.103–1(b)(3).
(iv) In the case of a participating plan,
some or all of the assets of which are
held in a pooled separate account
maintained by an insurance company,
or a common or collective trust
maintained by a bank or similar
institution, the information described in
§ 2520.103–1(b)(4).
(c) Technical requirements. The
accountant’s report required for the DCG
trust and any participating plan subject
to the requirements in paragraph (b)(6)
of this section—
(1) Shall be dated;
(2) Shall be signed manually;
(3) Shall indicate the city and state
where issued;
(4) Shall identify without detailed
enumeration the financial statements
and schedules covered by the report;
(5) Shall state whether the audit was
made in accordance with generally
accepted auditing standards;
(6) Shall designate any auditing
procedures deemed necessary by the
accountant under the circumstances of
the particular case, which have been
omitted, and the reasons for their
omission. Authority for the omission of
certain procedures which independent
accountants might ordinarily employ in
the course of an audit made for the
purpose of expressing the opinions
required by paragraph (b)(5)(iii) of this
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section is contained in § 2520.103–8;
and
(7) Shall state clearly:
(i) The opinion of the accountant in
respect of the financial statements and
schedules covered by the report and the
accounting principles and practices
reflected therein; and
(ii) The opinion of the accountant as
to the consistency of the application of
the accounting principles with the
application of such principles in the
preceding year, or as to any changes in
such principles which have a material
effect on the financial statements.
(8) Any matters to which the
accountant takes exception shall be
clearly identified, the exception thereto
specifically and clearly stated, and, to
the extent practicable, the effect of the
matters to which the accountant takes
exception on the related financial
statements given. The matters to which
the accountant takes exception shall be
further identified as to:
(i) Those that are the result of DOL
regulations; and
(ii) All others.
(d) Electronic filing requirement. See
§ 2520.104a–2 and the instructions for
the Form 5500 ‘‘Annual Return/Report
of Employee Benefit Plan’’ for electronic
filing requirements. The common plan
administrator for each plan whose
reporting obligations are satisfied by a
DCG filing under this section must
maintain an original copy of the DCG
filing, with all required signatures, as
part of the DCG’s records.
■ 6. Add § 2520.104–51 to read as
follows:
§ 2520.104–51 Alternative method of
compliance for defined contribution
pension plan group (DCG) reporting
arrangements.
(a) General. Under the authority of
section 110 of the Act and section 202
of the SECURE Act, the plan
administrator common to each plan
(‘‘common plan administrator’’), as
described in paragraph (c)(2)(iii) of this
section, satisfies the obligation to file an
annual report for each of the plans
participating in the DCG reporting
arrangement described in paragraph (c)
of this section if the participating plan
meets the requirements of paragraph (b)
of this section.
(b) Application. (1) The alternative
method of compliance set out in this
section is available only for an
individual account or defined
contribution pension plan in a plan year
in which:
(i) Such plan participates in a defined
contribution pension plan group (DCG)
reporting arrangement described in
paragraph (c) of this section; and
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51307
(ii) A consolidated annual report
containing the items set forth in
§ 2520.103–14 has been filed with the
Secretary of Labor in accordance with
§ 2520.104a–9 by the common plan
administrator (as described in paragraph
(c)(2)(iii) of this section) for all of the
plans participating in the DCG reporting
arrangement (as described in paragraph
(c) of this section).
(2) For purposes of this section, the
term ‘‘DCG reporting arrangement’’ or
‘‘common plan administrator’’ shall be
used in place of the terms ‘‘plan’’ and
‘‘plan administrator,’’ in §§ 2520.103–3,
2520.103–4, 2520.103–6, 2520.103–8,
2520.103–9, and 2520.103–10 and
elsewhere in subpart C of this part and
this subpart, as applicable.
(c) Defined contribution pension plan
group (DCG) reporting arrangement. An
arrangement is only a ‘‘DCG reporting
arrangement’’ if all plans participating
in the arrangement—
(1) Are individual account plans or
defined contribution plans as defined in
section 3(34) of the Act;
(2) Have—
(i) The same trustee as described in
section 403(a) of the Act (‘‘common
trustee’’) and trust(s) (‘‘common trust’’);
(ii) The same one or more named
fiduciaries as described in section
402(a) of the Act (‘‘common named
fiduciaries’’), except that nothing in this
paragraph (c)(2)(ii) precludes an
individual employer acting as an
additional named fiduciary with respect
to the individual plan it sponsors;
(iii) A designated plan administrator
that is the same plan administrator as
defined in section 3(16)(A) of the Act
(‘‘common plan administrator’’); and
(iv) Plan years beginning on the same
date (‘‘common plan year’’);
(3) Provide the same investments or
investment options (‘‘common
investments or investment options’’) to
participants and beneficiaries; and
(4) Have the investment assets held in
a single trust of the DCG reporting
arrangement, and the participating plan:
(i) Do not hold any employer
securities at any time during the plan
year;
(ii) At all times during the plan year,
are 100% invested in assets that have a
readily determinable fair market value
as described in § 2520.103–1(c)(2)(ii)(C);
(iii) Are either audited by an
independent qualified public
accountant (IQPA) or satisfies the audit
waiver conditions in § 2520.104–
46(b)(1)(i)(A)(1) and (b)(1)(i)(B) and (C);
(iv) Are not a multiemployer plan;
and
(v) Are not a multiple employer
pension plan, including a pooled
employer plan described in section
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Federal Register / Vol. 86, No. 176 / Wednesday, September 15, 2021 / Proposed Rules
3(43) of the Act and multiple employer
defined contribution pension plans
described in § 2510.3–55 of this chapter.
(d) Limitations. The alternative
method of reporting set out in this
section does not relieve the
administrator of a defined contribution
pension plan participating in a DCG
reporting arrangement described in
paragraph (c) of this section from any
other requirements of Title I of the Act,
including the provisions which require
that plan administrators furnish copies
of the summary plan description to
participants and beneficiaries (section
104(b)(1)), furnish certain documents to
the Secretary of Labor upon request
(section 104(a)(6)), authorize the
Secretary of Labor to collect information
and data from employee benefit plans
for research and analysis (section 513),
and furnish a copy of a summary annual
report to participants and beneficiaries
of the plan, as required by section
104(b)(3) of the Act.
■ 7. In § 2520.104a–5, revise paragraph
(a) introductoty text to read as follows:
§ 2520.104a–5 Annual reporting filing
requirements.
(a) Filing obligation. Except as
provided in §§ 2520.104a–6 and
2520.104a–9, the administrator of an
employee benefit plan required to file
an annual report pursuant to section
104(a)(1) of the Act shall file an annual
report containing the items prescribed
in § 2520.103–1 within:
*
*
*
*
*
■ 8. Add § 2520.104a–9 to read as
follows:
§ 2520.104a–9 Annual reporting for
defined contribution pension plan group
(DCG) reporting arrangements.
khammond on DSKJM1Z7X2PROD with PROPOSALS
(a) General. A defined contribution
pension plan group (DCG) reporting
arrangement described in § 2520.104–
51(c) that files an annual report in
accordance with the terms of paragraphs
(b) and (c) of this section shall be
deemed to have filed such a report for
purposes of § 2520.104–51.
(b) Date of filing. The annual report
shall be filed within seven months after
the close of the plan year of the DCG
reporting arrangement, unless extended.
See ‘‘When to file’’ instructions of the
appropriate Annual Return/Report
Form.
(c) Where to file. The annual report
prescribed in § 2520.103–14 shall be
filed electronically in accordance with
the instructions to the Annual Return/
Report Form.
■ 9. In § 2520.104b–10:
■ a. In paragraph (d)(3):
■ i. Revise the ‘‘Summary Annual
Report for (name of plan)’’;
■ ii. Add paragraphs 11 and 12
immediately following paragraph 10
under ‘‘Your Rights to Additional
Information’’; and
■ iii. Remove the last undesignated
paragraph and add two undesignated
paragraphs in its place; and
■ b. Remove the appendix to the
section; and
■ c. Add table 1 at the end of the
section.
The revisions and additions read as
follows:
§ 2520.104b–10
*
*
*
(d) * * *
(3) * * *
Summary Annual Report.
*
*
Summary Annual Report for (name of
plan)
This is a summary of the annual
report [insert as applicable either Form
5500 Annual Return/Report of
Employee Benefit Plan or Form 5500–SF
Annual Return/Report of Small
Employee Benefit Plan] of [insert name
of plan and EIN/PN] for [insert period
covered by this report]. The [insert as
applicable either Form 5500 or Form
5500–SF] annual report has been filed
with the Employee Benefits Security
Administration, as required under the
Employee Retirement Income Security
Act of 1974 (ERISA). Your plan is a
[insert a brief description of the plan
based on the plan characteristic codes
listed for the plan on the Form 5500,
including whether it is a defined
contribution or defined benefit plan,
and whether the plan is a pooled
employer plan, another type of multiple
employer plan, a single employer plan].
[If the plan is participating in a DCG
reporting arrangement]:
Your plan participates in an annual
reporting arrangement that files a
consolidated Form 5500 Annual Report
for all the separate plans in the
arrangement. This summary includes
aggregate information on all the
participating plans from the
consolidated Form 5500. The
consolidated Form 5500 also includes a
separate schedule (Schedule DCG) for
each individual plan. As noted below
regarding your rights to additional
information, you have a right to receive
a copy of the Schedule DCG relating to
your plan on request from the plan
administrator.]
*
*
*
*
*
Your Rights to Additional Information
*
*
*
*
*
11. a Schedule DCG for plans
participating in a consolidated group
Form 5500 filing that includes your plan
sponsor’s name, EIN, total number of
participants in your plan and basic
financial information about the plan.
■ 12. a Schedule MEP, including name
and EIN of the employers participating
in the MEP, each participating
employer’s percentage of the total
contributions (employer and employee)
made by all employer participating in
the MEP and aggregate account balance
for each of the employer participating in
the MEP.
*
*
*
*
*
[If the plan is participating in a DCG
reporting arrangement]:
You also have the legally protected
right to examine the annual report at the
main office of the plan (address), (at any
other location where the report is
available for examination), and at the
U.S. Department of Labor in
Washington, DC, or to obtain a copy
from the U.S. Department of Labor upon
payment of copying costs. Requests to
the Department should be addressed to:
Public Disclosure Room, Room N–1513,
Employee Benefits Security
Administration, U.S. Department of
Labor, 200 Constitution Avenue NW,
Washington, DC 20210. The annual
report is also available online at the
Department of Labor website
www.efast.dol.gov.
*
*
*
*
*
■
TABLE 1 TO § 2520.104B–10—THE SUMMARY ANNUAL REPORT (SAR) UNDER ERISA: A CROSS-REFERENCE TO THE
ANNUAL REPORT
SAR item
Form 5500 large plan filer line
items
Form 5500 small plan filer line
items
A. Pension Plan:
1. Funding arrangement .........
2. Total plan expenses ...........
3. Administrative expenses .....
4. Benefits paid .......................
Form 5500–9a ..............................
Sch. H–2j ......................................
Sch. H–2i(5) ..................................
Sch. H–2e(4) ................................
Same ............................................
Sch. I–2j ........................................
Sch. I–2h ......................................
Sch. I–2e ......................................
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17:03 Sep 14, 2021
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Form 5500–SF filer line items
Not applicable.
Line 8h.
Line 8f.
Line 8d.
15SEP1
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51309
TABLE 1 TO § 2520.104B–10—THE SUMMARY ANNUAL REPORT (SAR) UNDER ERISA: A CROSS-REFERENCE TO THE
ANNUAL REPORT—Continued
SAR item
5. Other expenses ..................
6. Total participants ................
6. Value of plan assets (net):
a. End of plan year ..........
b. Beginning of plan year
8. Change in net assets .........
9. Total income .......................
a. Employer contributions
b. Employee contributions
c. Participating employer’s
percentage of the total
contributions (employer
and employee) made
by all employers participating in a MEP.
d. Aggregate account balance of the employer
participating in a MEP
(determined as the sum
of the account balances
of the employees of
such employer (including the beneficiaries of
such employees).
e. Gains (losses) from
sale of assets.
f. Earnings from investments.
11. Total insurance premiums
12. Unpaid minimum required
contribution (S–E plans) or
Funding deficiency (ME
plans):
a. S–E Defined benefit
plans.
b. ME Defined benefit
plans.
c. Defined contribution
plans.
13. Individual plan information
for plans participating in a
DCG reporting arrangement.
B. Welfare Plan:
1. Name of insurance carrier ..
2. Total (experience rated and
non-experienced rated) insurance premiums.
3. Experience rated premiums
4. Experience rated claims .....
5. Value of plan assets (net):
a. End of plan year ..........
b. Beginning of plan year
6. Change in net assets .........
khammond on DSKJM1Z7X2PROD with PROPOSALS
7. Total income .......................
a. Employer contributions
b. Employee contributions
c. Gains (losses) from
sale of assets.
d. Earnings from investments.
8. Total plan expenses ...........
9. Administrative expenses .....
10. Benefits paid .....................
VerDate Sep<11>2014
17:03 Sep 14, 2021
Form 5500 large plan filer line
items
Form 5500 small plan filer line
items
Sch. H—Subtract the sum of
2e(4) & 2i(5) from 2j.
Form 5500–6f ...............................
Sch. I–2i ........................................
Line 8g.
Same ............................................
Line 5b.
Sch. H–1l [Col. (b)] .......................
Sch. H–1l [Col. (a)] .......................
Sch. H—Subtract 1l [Col. (a)] from
1l [Col. (b)].
Sch. H–2d .....................................
Sch. H–2a(1)(A) & 2a(2) if applicable.
Sch. H–2a(1)(B) & 2a(2) if applicable.
Sch. MEP Line 2c .........................
Sch. I–1c [Col. (b)] .......................
Sch. I–1c [Col. (a)] .......................
Sch. I—Subtract 1c [Col. (a) from
Col. (b)].
Sch. I–2d ......................................
Sch. I–2a(1) & 2b if applicable .....
Line 7c [Col. (b)].
Line 7c [Col. (a)].
Line 7c—Subtract Col. (a) from
Col. (b).
Line 8c.
Line 8a(1) if applicable.
Sch. I–2a(2) & 2b if applicable .....
Line 8a(2) & 8a(3) if applicable.
Sch. MEP Line 2c .........................
Not applicable.
Sch. MEP Line 2d ........................
Sch. MEP Line 2d ........................
Not applicable.
Sch. H–2b(4)(C) ...........................
Not applicable ...............................
Not applicable.
Sch. H—Subtract the sum of
2a(3), 2b(4)(C) and 2c from 2d.
Total of all Schs. A–6b .................
Sch. I–2c .......................................
Line 8b.
Total of all Schs. A–6b .................
Not applicable.
Sch. SB–39 ...................................
Same ............................................
Same.
Sch. MB–10 ..................................
Same ............................................
Not applicable.
Sch. R–6c, if more than zero .......
Same ............................................
Line 12d.
Schedule DCG ..............................
Same ............................................
Not applicable.
All Schs. A–1(a) ............................
All Schs. A—Sum of 9a(1) and
10a.
Same ............................................
Same ............................................
Not applicable.
Not applicable.
All Schs. A–9a(1) ..........................
All Schs. A–9b(4) ..........................
Same ............................................
Same ............................................
Not applicable.
Not applicable.
Sch. H–11 [Col. (b)] ......................
Sch. H–11 [Col. (a)] ......................
Sch. H—Subtract 1 [Col. (a)] from
1 [Col. (b)].
Sch. H–2d .....................................
Sch. H–2a(1)(A) & 2a(2) if applicable.
Sch. H–2a(1)(B) & 2a(2) if applicable.
Sch. H–2b(4)(C) ...........................
Sch. I–1c [Col. (b)] .......................
Sch. I–1c [Col. (a)] .......................
Sch. I—Subtract 1c [Col. (a)] from
1c [Col. (b)].
Sch. I–2d ......................................
Sch. I–2a(1) & 2b if applicable .....
Line 7c [Col. (b)].
Line 7c [Col. (a)].
Line 7c—Subtract [Col. (a)] from
7c [Col. (b)].
Line 8c.
Line 8a(1) if applicable.
Sch. I–2a(2) & 2b if applicable .....
Line 8a(2) if applicable.
Not applicable ...............................
Not applicable.
Sch. H—Subtract the sum of
2a(3), 2b(4)(C) and 2c from 2d.
Sch. H–2j ......................................
Sch. H–2i(5) ..................................
Sch. H–2e(4) ................................
Sch. I–2c .......................................
Line 8b.
Sch. I–2j ........................................
Sch. I–2h ......................................
Sch. I–2e ......................................
Line 8h.
Line 8f.
Line 8d.
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Form 5500–SF filer line items
15SEP1
51310
Federal Register / Vol. 86, No. 176 / Wednesday, September 15, 2021 / Proposed Rules
TABLE 1 TO § 2520.104B–10—THE SUMMARY ANNUAL REPORT (SAR) UNDER ERISA: A CROSS-REFERENCE TO THE
ANNUAL REPORT—Continued
Form 5500 large plan filer line
items
SAR item
11. Other expenses ................
Sch. H—Subtract the sum of
2e(4) & 2i(5) from 2j.
Signed at Washington, DC, this 2nd day of
September, 2021.
Ali Khawar,
Acting Assistant Secretary, Employee Benefits
Security Administration, U.S. Department of
Labor.
[FR Doc. 2021–19713 Filed 9–14–21; 8:45 am]
BILLING CODE 4510–29–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R01–OAR–2021–0580; FRL–8967–01–
R1]
Air Plan Approval; Rhode Island; 2015
Ozone NAAQS Interstate Transport
Requirements
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Clean Air Act (CAA)
requires each State Implementation Plan
(SIP) to contain adequate provisions
prohibiting emissions that will have
certain adverse air quality effects in
other states. The State of Rhode Island
made a submission to the
Environmental Protection Agency (EPA)
to address these requirements for the
2015 ozone National Ambient Air
Quality Standards (NAAQS). EPA is
proposing to approve the submission for
Rhode Island as meeting the
requirement that each SIP contain
adequate provisions to prohibit
emissions that will significantly
contribute to nonattainment or interfere
with maintenance of the 2015 ozone
NAAQS in any other state.
DATES: Written comments must be
received on or before October 15, 2021.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R01–
OAR–2021–0580 at https://
www.regulations.gov, or via email to
simcox.alison@epa.gov. For comments
submitted at Regulations.gov, follow the
online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. For either manner of
submission, EPA may publish any
comment received to its public docket.
Do not submit electronically any
khammond on DSKJM1Z7X2PROD with PROPOSALS
SUMMARY:
VerDate Sep<11>2014
17:03 Sep 14, 2021
Jkt 253001
Form 5500 small plan filer line
items
Sch. I–2i ........................................
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. EPA will generally not consider
comments or comment contents located
outside of the primary submission (i.e.,
on the web, cloud, or other file sharing
system). For additional submission
methods, please contact the person
identified in the FOR FURTHER
INFORMATION CONTACT section. For the
full EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www.epa.gov/dockets/
commenting-epa-dockets. Publicly
available docket materials are available
at https://www.regulations.gov or at the
U.S. Environmental Protection Agency,
EPA Region 1 Regional Office, Air and
Radiation Division, 5 Post Office
Square—Suite 100, Boston, MA. EPA
requests that if at all possible, you
contact the contact listed in the FOR
FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional
Office’s official hours of business are
Monday through Friday, 8:30 a.m. to
4:30 p.m., excluding legal holidays and
facility closures due to COVID–19.
FOR FURTHER INFORMATION CONTACT:
Alison C. Simcox, Air Quality Branch,
U.S. Environmental Protection Agency,
EPA Region 1, 5 Post Office Square—
Suite 100, (Mail code 05–2), Boston, MA
02109—3912, tel. (617) 918–1684, email
simcox.alison@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA.
Table of Contents
I. Background
II. Rhode Island Submission
III. EPA Evaluation of Rhode Island’s
Submission
IV. Proposed Action
V. Statutory and Executive Order Reviews
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Line 8g.
I. Background
On October 1, 2015, EPA promulgated
a revision to the ozone NAAQS (2015
ozone NAAQS), lowering the level of
both the primary and secondary
standards to 0.070 parts per million
(ppm).1 Section 110(a)(1) of the CAA
requires states to submit, within 3 years
after promulgation of a new or revised
standard, SIP submissions meeting the
applicable requirements of section
110(a)(2).2 One of these applicable
requirements is found in section
110(a)(2)(D)(i)(I), otherwise known as
the good neighbor provision, which
generally requires SIPs to contain
adequate provisions to prohibit in-state
emissions activities from having certain
adverse air quality effects on other states
due to interstate transport of pollution.
There are two so-called ‘‘prongs’’ within
CAA section 110(a)(2)(D)(i)(I). A SIP for
a new or revised NAAQS must contain
adequate provisions prohibiting any
source or other type of emissions
activity within the state from emitting
air pollutants in amounts that will:
Significantly contribute to
nonattainment of the NAAQS in another
state (prong 1) or interfere with
maintenance of the NAAQS in another
state (prong 2). EPA and states must give
independent significance to prong 1 and
prong 2 when evaluating downwind air
quality problems under CAA section
110(a)(2)(D)(i)(I).3
We note that EPA has addressed the
interstate transport requirements of
CAA section 110(a)(2)(D)(i)(I) with
respect to prior ozone NAAQS in
several regional regulatory actions,
including the Cross-State Air Pollution
Rule (CSAPR), which addressed
interstate transport with respect to the
1997 ozone NAAQS as well as the 1997
and 2006 fine particulate matter
1 National Ambient Air Quality Standards for
Ozone, Final Rule, 80 FR 65292 (October 26, 2015).
Although the level of the standard is specified in
the units of ppm, ozone concentrations are also
described in parts per billion (ppb). For example,
0.070 ppm is equivalent to 70 ppb.
2 SIP revisions that are intended to meet the
applicable requirements of section 110(a)(1) and (2)
of the CAA are often referred to as infrastructure
SIPs and the applicable elements under section
110(a)(2) are referred to as infrastructure
requirements.
3 See North Carolina v. EPA, 531 F.3d 896, 909–
911 (D.C. Cir. 2008).
E:\FR\FM\15SEP1.SGM
15SEP1
Agencies
[Federal Register Volume 86, Number 176 (Wednesday, September 15, 2021)]
[Proposed Rules]
[Pages 51284-51310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19713]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Employee Benefits Security Administration
29 CFR Part 2520
RIN 1210-AB97
Annual Reporting and Disclosure
AGENCY: Employee Benefits Security Administration, Labor.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This document contains proposed amendments to Department of
Labor (DOL) regulations relating to annual reporting requirements under
Title I of the Employee Retirement Income Security Act of 1974, as
amended (ERISA). The proposed amendments contained in this document
would conform these DOL reporting regulations to proposed revisions
under Title I of ERISA and the Internal Revenue Code (Code) to the Form
5500 Annual Return/Report of Employee Benefit Plan and Form 5500-SF
Short Form Annual Return/Report of Small Employee Benefit Plan being
published in this issue of the Federal Register in a separate Notice of
Proposed Forms Revisions (NPFR) prepared jointly by DOL, the Internal
Revenue Service (IRS), and the Pension
[[Page 51285]]
Benefit Guaranty Corporation (PBGC) (collectively ``Agencies''). Those
proposed form changes and these proposed regulatory amendments
primarily implement statutory changes enacted as part of the Setting
Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act).
Conforming changes also are being proposed to the requirements for the
summary annual report. The proposed regulatory amendments would affect
employee pension and welfare benefit plans, plan sponsors,
administrators, and service providers to plans subject to annual
reporting requirements under ERISA and the Code.
DATES:
Comment due date: Comments are due on or before November 1, 2021.
Proposed applicability dates: If adopted, the proposed regulatory
amendments to implement the SECURE Act's amendment of section 103(g)
would apply to 2021 plan year reporting. All other proposed regulatory
amendments would apply to reporting for plan years beginning on or
after January 1, 2022.
ADDRESSES: You may submit written comments, identified by RIN 1210-
AB97, by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov. Follow the
instructions for submitting comments.
Mail: Office of Regulations and Interpretations, Employee Benefits
Security Administration, Room N-5655, U.S. Department of Labor, 200
Constitution Ave. NW, Washington, DC 20210, Attention: Proposed
Revision of Annual Information Return/Reports RIN 1210-AB97.
Instructions: All submissions must include the agency name and
Regulatory Identifier Number (RIN) for this rulemaking. The DOL will
share any comment submitted in response to this regulatory proposal
with the IRS and the PBGC. To avoid unnecessary duplication of effort,
the Agencies also will treat public comments submitted in response to
this notice of proposed rulemaking as public comments on the Notice of
Proposed Forms Revisions to the extent they include information
relevant to the proposed regulatory amendments. If you submit comments
electronically, do not submit paper copies. Comments will be available
to the public, without charge, online at https://www.regulations.gov and
https://www.dol.gov/agencies/ebsa and at the Public Disclosure Room,
Employee Benefits Security Administration, Suite N-1513, 200
Constitution Ave. NW, Washington, DC 20210.
Warning: Do not include any personally identifiable or confidential
business information that you do not want publicly disclosed. Comments
are public records posted on the internet as received and can be
retrieved by most internet search engines.
FOR FURTHER INFORMATION CONTACT: Janet Song or Colleen Brisport
Sequeda, Office of Regulations and Interpretations, Employee Benefits
Security Administration, U.S. Department of Labor, (202) 693-8500 (this
is not a toll-free number), for questions related to these proposed
amendments to the DOL regulations.
Customer service information: Individuals interested in obtaining
information from the DOL concerning Title I of ERISA may call the EBSA
Toll-Free Hotline at 1-866-444-EBSA (3272) or visit the DOL's website
(www.dol.gov/agencies/ebsa).
SUPPLEMENTARY INFORMATION:
A. Legislative and Regulatory Reporting Framework
Titles I and IV of ERISA and the Internal Revenue Code (Code),
generally require pension and other employee benefit plans to file
annual returns/reports concerning, among other things, the financial
condition and operations of the plan. Filing a Form 5500 Annual Return/
Report of Employee Benefit Plan (Form 5500) or, if eligible, a Form
5500-SF Short Form Annual Return/Report of Small Employee Benefit Plan
(Form 5500-SF), together with any required schedules and attachments
(together ``the Form 5500 Annual Return/Report''),\1\ in accordance
with their instructions, generally satisfies these annual reporting
requirements.
---------------------------------------------------------------------------
\1\ References to the ``Form 5500 Annual Return/Report'' may
include depending on the context, the Form 5500, the Form 5500-SF,
and the Form 5500-EZ, Annual Return of One Participant (Owners and
Their Spouses) Retirement Plan (Form 5500-EZ). The Form 5500-EZ is a
return that is required only to satisfy the Code. Form 5500-EZ
filers are not subject to Title I of ERISA.
---------------------------------------------------------------------------
ERISA section 103 broadly sets out annual financial reporting
requirements for employee benefit plans under Title I of ERISA. The
Form 5500 Annual Return/Report for Title I purposes is promulgated
pursuant to DOL regulations under the ERISA provisions authorizing
limited exemptions and simplified reporting and disclosure for welfare
plans under ERISA section 104(a)(3), simplified annual reports under
ERISA section 104(a)(2)(A) for pension plans that cover fewer than 100
participants, and alternative methods of compliance for all pension
plans under ERISA section 110. The Form 5500 Annual Return/Report, and
related instructions and regulations, are also promulgated under the
DOL's general regulatory authority in ERISA sections 109 and 505.
In addition to being an important disclosure document for plan
participants and beneficiaries, the Form 5500 Annual Return/Report is a
critical enforcement, compliance, and research tool for the DOL, the
Internal Revenue Service (IRS), and the Pension Benefit Guaranty
Corporation (PBGC) (together ``Agencies''). The Form 5500 Annual
Return/Report is also an important source of information and data for
use by other Federal agencies, Congress, and the private sector in
assessing employee benefit, tax, and economic trends and policies. In
the United States, there are an estimated 2.5 million health plans, an
estimated 885,000 other welfare plans, and nearly 772,000 private
pension plans. These plans cover roughly 154 million private sector
workers, retirees, and dependents, and have estimated assets of $12.2
trillion. The Form 5500 Annual Return/Report serves as the principal
source of information and data available to the Agencies concerning the
operations, funding, and investments of approximately 843,000 pension
and welfare benefit plans that file.\2\ Accordingly, the Form 5500
Annual Return/Report is essential to each Agency's enforcement,
research, and policy formulation programs, as well for the regulated
community, which makes increasing use of the information as more
capabilities develop to interact with the data electronically. The data
is also an important source of information and data for use by other
Federal agencies, Congress, and the private sector in assessing
employee benefit, tax, and economic trends and policies. The Form 5500
Annual Return/Report also serves as the primary means for monitoring
the operations of plans by participating employers in multiple employer
plans and other group arrangements, plan participants and
beneficiaries, and by the public.
---------------------------------------------------------------------------
\2\ Estimates are based on 2019 Form 5500 filings. DOL notes
that welfare plans with less than 100 participants that are unfunded
or insured (do not hold assets in trust) are generally exempt from
filing a Form 5500. Therefore, while DOL estimates there are 2.5
million health plans and 885,000 non-health welfare plans,
respectively only 69,000 and 91,000 of these plans filed a 2019 Form
5500.
---------------------------------------------------------------------------
The forms, schedules, and instructions, also serve to help the DOL
carry out its statutory directives under sections 506 and 513 of ERISA.
Specifically, section 506(a) of ERISA authorizes the Secretary of Labor
to coordinate with other Agencies to avoid unnecessary expense and
duplication of functions among Government agencies. The Agencies
designed the Form 5500
[[Page 51286]]
Annual Return/Report so that it could be used simultaneously to satisfy
annual return/report requirements to the Agencies, and to help the
Agencies more effectively and efficiently (from both the public's and
the Agencies' perspectives) provide oversight, assist with compliance,
and enforce the provisions of ERISA and the Code. Section 506(b) gives
the DOL responsibility for detecting and investigating civil and
criminal violations of Title I of ERISA. The Form 5500 Annual Return/
Report is one of the important tools the DOL uses to carry out its
responsibility to detect and investigate such violations. Section
513(b)(2) of ERISA specifically directs DOL to undertake research
studies relating to pension plans, including but not limited to (A) the
effects of this subchapter upon the provisions and costs of pension
plans, (B) the role of private pensions in meeting the economic
security needs of the nation, and (C) the operation of private pension
plans including types and levels of benefits, degree of reciprocity or
portability, and financial and actuarial characteristics and practices,
and methods of encouraging the growth of the private pension system.
Recent legislative and regulatory changes affecting multiple
employer pension plans (MEPs) and similar arrangements are spurring the
current need to update the Form 5500 Annual Return/Report and related
regulations. Specifically, as discussed in more detail in the NPFR, the
Setting Every Community Up for Retirement Enhancement Act of 2019
(SECURE Act),\3\ included various provisions designed to improve the
private employer-based retirement system. Among other things, the
SECURE Act included changes designed to simplify retirement plan
administration for certain eligible defined contribution plans and
added provisions to the Code relating to MEPs, including MEPs with
pooled plan providers, and adopted provisions under Title I of ERISA
that designated these MEPs with pooled plan providers as pooled
employer plans.
---------------------------------------------------------------------------
\3\ The SECURE Act was enacted on December 20, 2019, as Division
O of the Further Consolidated Appropriations Act, 2020 (Pub. L. 116-
94).
---------------------------------------------------------------------------
The NPFR published concurrently in this issue of the Federal
Register sets forth a discussion of form and instruction changes that
relate to these proposed regulations. These proposed revisions to the
DOL's reporting regulations are needed for the DOL to implement the
forms revisions proposed in the three-agency (DOL, IRS, and PBGC)
Notice of Proposed Forms Revisions (NPFR).
B. Discussion of the Proposed Revisions to 29 CFR Part 2520
1. Section 2520.103-1(a)(2)
Section 2520.103-1 generally describes the content of the Form 5500
Annual Return/Report as a limited exemption and alternative method of
compliance for ERISA-covered employee benefit plans to satisfy annual
reporting requirements under Title I. The proposal adds a reference to
``section 202 of the SECURE Act'' to paragraph (a)(2) of Sec.
2520.103-1 to set forth the authority for prescribing a consolidated
report alternative method of compliance for certain groups of defined
contribution retirement plans under proposed Sec. Sec. 2520.103-14 and
2520.104-51, discussed below, relating to defined contribution group
(DCG) reporting arrangements.
2. Sections 2520.103-1(b)(1) and 2520.103-1(c)(1)
Paragraphs (b) and (c) of Sec. 2520.103-1 generally describes the
contents of the annual report for large plans (generally those with 100
or more participants) and small plans (generally those with fewer than
100 participants). The proposal would amend Sec. 2520.103-1(b)(1) to
add a proposed multiple employer plan (MEP) schedule (titled Schedule
MEP) to the list of schedules and attachments required to be included
with the Form 5500 for large MEPs. A parallel update is being proposed
to Sec. 2520.103-1(c)(1) to add the Schedule MEP as a schedule that
small MEPs must include with the Form 5500.\4\
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\4\ See NPFR for detailed discussion of the proposed Schedule
MEP and Schedule DCG.
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2. Section 2520.103-1(c)(2)(ii)
Paragraph (c) of Sec. 2520.103-1 describes the conditions under
which an eligible small plan (generally with fewer than 100
participants) may file the Form 5500-SF. The proposal would add Sec.
2520.103-1(c)(2)(ii)(F) to state that MEPs, which include pooled
employer plans, as well as MEPs described in the DOL's regulation at
Sec. 2510.3-55 (association retirement plans and professional employer
organization (PEO) MEPs), are not permitted to use the Form 5500-SF
regardless of whether the plan meets the size and other requirements
for filing a Form 5500-SF. A similar prohibition applies under the
current regulation to MEWA plans required to file the Form M-1 and to
multiemployer plans. The proposal would also add a new Sec. 2520.103-
1(c)(2)(ii)(G) to provide a similar prohibition on filing the Form
5500-SF for DCG reporting arrangements. As described below in proposed
Sec. Sec. 2510.103-14 and 104-51, DCG reporting arrangements must file
the aggregated annual report for participating plans using the Form
5500, including the schedules and attachments that are generally
required for large retirement plans and Direct Filing Entities (DFEs)
as well as a Schedule DCG (Individual Plan Information) for each plan
whose reporting obligation is being satisfied by the DCG filing.
3. Amendments to Sec. 2520.103-10
Section 2520.103-10 identifies financial schedules that are
required to be included as part of the Form 5500 Annual Return/Report
depending on the characteristics and operations of the plan. The listed
schedules include the ``Schedule of Assets Held for Investment'' and
``Schedule of Assets Acquired and Disposed within the Plan Year.''
Paragraph (b) of Sec. 2520.103-10 sets forth the content requirements
for these schedules. The NPFR being published concurrently with this
NPRM includes proposed additions and clarifications to the content of
the ``Schedules of Assets Held for Investment'' and the ``Schedule of
Assets Acquired and Disposed within the Plan Year'' that are designed
to improve the consistency, transparency, and usability of the
information reported regarding plan investments. The proposed changes
to the contents and format of the schedule are described in detail in
the NPFR and also set forth in the proposed amendment to the regulatory
text in paragraph (b)(1)(i) of Sec. 2520.103-10. Currently, filers
typically file the schedule as a PDF. Of particular note, the proposal
specifies that the schedules would have to be filed electronically
through the ERISA Filing Acceptance System II (EFAST2) electronic
filing system in a structured format in accordance with the EFAST2
requirements and the Form 5500's instructions.
4. New Sec. Sec. 2520.103-14, 2520.104-51 and 2520.104a-9--
Consolidated Form 5500 as an Alternative Method of Compliance for Plans
Participating in a DCG Reporting Arrangement
The proposal would amend the ERISA annual reporting regulations to
implement the SECURE Act section 202 directive to the Secretary of
Labor to jointly with the Secretary of the Treasury provide for a
single, aggregated Form 5500 option that would satisfy the annual
reporting obligations for the defined contribution pension plans
[[Page 51287]]
participating in the group. Under the proposal, several conditions
relating to the DCG reporting arrangement, the participating plans, and
the content of the Form 5500 filing would have to be satisfied before
the aggregated filing would satisfy the annual reporting requirements
of the separate participating plans. The NPFR describes those
conditions in detail. The conditions also are set forth in a proposed
new 29 CFR 2520.103-14 and 2520.104-51.\5\
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\5\ The proposal is modeled to some extent on the existing
annual reporting rules for fully insured welfare benefit plans that
participate in a group insurance arrangement (GIA) and for
investment entities that file as a Direct Filing Entity. See 29 CFR
2520.103-2, 2520.103-12, 2520.104-21, and 2520.104-43.
---------------------------------------------------------------------------
With respect to the content requirements for a DCG consolidated
Form 5500 filing, proposed paragraph (b) of Sec. 2520.103-14 provides
that the consolidated DCG report would be required to include a Form
5500 ``Annual Return/Report of Employee Benefit Plan'' and various
statements or schedules based on the characteristics and operations of
the participating plans, including Schedule A (Insurance Information),
Schedule C (Service Provider Information), Schedule D (DFE/
Participating Plan Information), Schedule G (Financial Transaction
Schedules), Schedule H (Financial Information), Schedule R (Retirement
Plan Information), Schedule DCG (Individual Plan Information),\6\
supplemental schedules referred to in 29 CFR 2520.103-10 with
information aggregated for all the participating plans, the report and
opinion of an independent qualified public accountant (IQPA) for the
DCG trust, and an IQPA report and opinion for any individual
participating plans with 100 or more participants that would be subject
to the audit requirement if filing a separate Form 5500. This would
include separate financial statements, if such financial statements are
prepared in order for the independent qualified public accountant to
form the required opinions on the DCG trust required under the proposal
and the individual participating large plans required by section
103(a)(3)(A) of the Act and Sec. 2520.103-2(b)(5).\7\
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\6\ See NPFR for detailed description of the proposed Schedule
DCG. A separate Schedule DCG would be required for each individual
participating plan. In the case of an existing plan that joins a DCG
filing arrangement, the identifying information regarding the plan
and employer/plan sponsor that was used in prior filings for the
plan must be used to identify the plan and the employer/plan sponsor
on the Schedule DCG for the plan.
\7\ See NPFR for a more detailed discussion of the content
requirements for DCG Form 5500.
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Proposed paragraph (d) would make clear that the DCG reporting
arrangement must comply with the electronic filing requirements that
apply to all plan filers and direct filing entities (DFE). See Sec.
2520.104a-2 and the instructions for the Form 5500 Annual Return/Report
for electronic filing requirements. In addition, the proposed paragraph
emphasizes that the common plan administrator of all the participating
plans that is filing the consolidated Form 5500 must maintain an
original copy, with all required signatures, as part of its records
(which also would be treated as records of each of the participating
plans).
The proposed new Sec. 2520.104-51 would authorize the DCG
consolidated report as an alternative method of compliance under ERISA
section 110 for defined contribution pension plans that participate in
DCG reporting arrangements. Specifically, filing of a complete and
accurate consolidated Form 5500 for the DCG reporting arrangement would
relieve the administrator of each individual participating defined
contribution pension plan that meets the requirements of paragraph (b)
of Sec. 2520.104-51 of the obligation to file an individual annual
report under Title I of ERISA. This alternative method of compliance
would be available only for a defined contribution pension plan in a
plan year in which (i) such plan participates in a DCG reporting
arrangement that meets the conditions of paragraph (c) of this proposed
Sec. 2520.104-51; and (ii) the DCG reporting arrangement has filed
with the Secretary of Labor in accordance with proposed Sec.
2520.104a-9, a complete and accurate consolidated annual report that
meets the content requirements under proposed Sec. 2520.103-14. To
make clear that the DCG reporting arrangement is a direct filing entity
(DFE) that is submitting the aggregated Form 5500 on behalf of the
participating plans, proposed Sec. 2520.104-51(b)(2) provides that
that the term ``DCG reporting arrangement'' shall be used in place of
the term ``plan'' where it appears in Sec. Sec. 2520.103-3, 2520.103-
4, 2520.103-6, 2520.103-8, 2520.103-9, and 2520.103-10 and elsewhere in
subparts C and D of 29 CFR part 2520, as applicable.
Proposed Sec. 2520.104-51 would also provide that the reporting
relief for individual plans would apply only if all plans participating
in the DCG reporting arrangement (i) are individual account plans or
defined contribution plans; (ii) have--(A) the same trustee (``common
trustee'') and same trust holding the assets of the participating plans
(``common trust''); (B) the same one or more named fiduciaries, except
the proposal would allow for the employer/plan sponsor to be a named
fiduciary of each employer's own plan provided that the other named
fiduciaries under the plans are the same and common to all plans
(``common named fiduciaries''); (C) a designated administrator that is
the same plan administrator for all the participating plans (``common
plan administrator''); (D) plan years beginning on the same date
(``common plan year''); (iii) provide the same investments or
investment options to participants and beneficiaries (``common
investments or investment options''); (iv) have the investment assets
held in a single trust of the DCG reporting arrangement; (v) not hold
any employer securities; (vi) be 100% invested in certain secure, easy
to value assets that meet the definition of ``eligible plan assets''
(see the instructions for line 6a of the Form 5500-SF), such as mutual
fund shares, investment contracts with insurance companies and banks
valued at least annually, publicly traded securities held by a
registered broker dealer, cash and cash equivalents, and plan loans to
participants; (vii) be audited by an IQPA or be eligible for the waiver
of the annual examination and report of an IQPA under 29 CFR 2520.104-
46, but not by reason of enhanced bonding; and (viii) may not be a
multiemployer plan or a MEP (including association retirement plans,
pooled employer plans and professional employer organization plans (PEO
plans)).
Proposed Sec. 2520.104-51 would also expressly state that the
alternative method of complying with the Title I annual reporting
requirements would not relieve the administrator of the individual
participating plans from any other requirement of Title I of the Act,
including, for example, the provisions that require that plan
administrators furnish copies of the summary plan description to
participants and beneficiaries (ERISA section 104(b)(1)), furnish
certain documents to the Secretary of Labor upon request (ERISA section
104(a)(6)), and furnish a copy of a Summary Annual Report (SAR) to
participants and beneficiaries of the plan (ERISA section 104(b)(3)).
Proposed Sec. 2520.104-51(c)(2)(iii) provides that all plans
participating in a DCG reporting arrangement must have a designated
common plan administrator that is the same plan administrator for all
the participating plans. The SECURE Act was not explicit on whether
this was intended to require the same person to be the plan
administrator under ERISA section
[[Page 51288]]
3(16)(A) for the purpose of meeting the annual reporting requirements
for each participating plan or was intended to require that the same
person be the plan administrator of each participating plan for all
purposes under ERISA. The proposal requires that the same person sign
the DCG filing as the plan administrator for each participating plan.
The Department solicits comments on whether the final rule should
address whether individual plans participating in a DCG may have a
separate statutory administrator responsible for other duties ERISA
assigns to the plan administrator (e.g., distribution of summary plan
descriptions).
Finally, proposed new Sec. 2520.104a-9 provides that, as would be
the case for all of the participating plans in the DCG reporting
arrangement if they were filing individually, the aggregated Form 5500
for the DCG is due no later than the end of the 7th month after the end
of the common plan year that all the plans must have in order to
participate in a DCG reporting arrangement pursuant to the requirement
in section 202 of the SECURE Act and the proposed regulation at Sec.
2520.104-51. Because the DCG filing is an alternative to each
participating plan filing its own Form 5500, that would mean that each
plan would have to submit its own IRS Form 5558 to extend the plan's
due date, and, as a consequence, extend the due date for the DCG
filing. A plan that did not submit a timely Form 5558 and that
participated in a DCG filing that was submitted after the 7th month
normal due date would be treated as having filed late. Public comments
are specifically solicited on how the filing extension process should
be structured for DCGs, including whether DCG reporting arrangements
should be able to file a single Form 5558 to obtain an extension for
filing the DCG consolidated report on behalf of the participating plans
as an alternative to having each individual plan file a Form 5558 for
there to be an extension for the reporting group as a whole.\8\
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\8\ Under the somewhat similar consolidated reporting provisions
applicable to GIAs, the GIA is permitted to use the IRS Form 5558 to
apply for an extension of time the GIA consolidated report on behalf
of the plans participating in the GIA.
---------------------------------------------------------------------------
As noted above, section 110 of ERISA permits the DOL to prescribe
for pension plans alternative methods of complying with any of the
reporting and disclosure requirements if the Secretary finds that: (1)
The use of the alternative method is consistent with the purposes of
ERISA and it provides adequate disclosure to plan participants and
beneficiaries, and adequate reporting to the Secretary; (2) application
of the statutory reporting and disclosure requirements would increase
costs to the plan or impose unreasonable administrative burdens with
respect to the operation of the plan; and (3) the application of the
statutory reporting and disclosure requirements would be adverse to the
interests of plan participants in the aggregate. The DOL believes that
the proposal on DCG reporting arrangements meets those conditions,
especially given the statutory direction in the SECURE Act to create
such a reporting option, but also specifically solicits comments on the
required findings under section 110.
As also discussed in the NPFR, the DOL expects that cost savings
for plans relying on a DCG filing compared to plans filing separately
will generally require the DCG to collectively exceed an aggregate
participant count of 100 participants. In other words, the DOL does not
expect a DCG filing to provide meaningful cost savings for plans
compared to filing their own annual report in the case of DCG
arrangements with an aggregate participant count of under 100
participants. Rather, we expect in such cases that the individual plans
would likely qualify for filing the Form 5500-SF and that they will
likely find it more cost effective to file their own separate Form
5500-SF. Accordingly, this proposal does not include an option under
which such a ``small'' DCG could file as a small plan. Nonetheless, the
DOL solicits comments regarding the merit of those expectations and
assumption and whether the rules should provide a simplified reporting
option for ``small'' DCG reporting arrangements.
5. Section 2520.104b-10
Section 2520.104b-10 sets forth the requirements for the Summary
Annual Report (SAR) appendix and prescribes formats for such reports.
The DOL proposes updating this section to reflect the new filing option
for DCG reporting arrangements and the addition of the new Schedule MEP
and Schedule DCG to the 5500 Annual Report/Return. The proposal
includes adding to the existing model language in the DOL's regulation
new text that plans would use to provide a brief description of the
plan based on the plan characteristic codes listed for the plan on the
Form 5500, including whether it is a defined contribution or defined
benefit plan, and whether the plan is a pooled employer plan, another
type of multiple employer plan, a single employer plan, or a plan
participating in a DCG reporting arrangement, respectively. The
proposed new regulatory language also includes text for plans to use
that states a copy of the Schedule DCG and the Schedule MEP are
available on request, as applicable. For plans participating in a DCG
reporting arrangement, the new language advises that a statement of the
aggregate assets and liabilities of all the plans in the DCG reporting
arrangement and accompanying notes, a statement of aggregate income and
expenses of the DCG reporting arrangement and accompanying notes, and a
copy of the audit report filed for the trust of the DCG reporting
arrangement are available on request. Finally, the new SAR language
would state that a copy of the Form 5500 annual report filed for the
plan or DCG is available online from EBSA via a DOL website at
www.efast.dol.gov.
C. Applicability Dates
If adopted, the proposed amendments to implement the SECURE Act's
amendment of section 103(g) would apply to reporting for plan years
beginning on or after January 1, 2021. The other proposed rules,
including those under section 202 of the SECURE Act and structuring the
schedules of assets held for investment, generally would apply to
reporting for plan years beginning on or after January 1, 2022. The
NPFR published concurrently in this issue of the Federal Register sets
forth a comprehensive discussion of form and instruction changes that
relate to these proposed regulations.
D. Regulatory Impact Analysis
The following is a discussion of the DOL's examination of the
effects of this rule as required by Executive Order 12866,\9\ Executive
Order 13563,\10\ the Paperwork Reduction Act of 1995,\11\ the
Regulatory Flexibility Act,\12\ section 202 of the Unfunded Mandates
Reform Act of 1995,\13\ Executive Order 13132,\14\ and the
Congressional Review Act.\15\
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\9\ Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993).
\10\ Improving Regulation and Regulatory Review, 76 FR 3821
(Jan. 18, 2011).
\11\ 44 U.S.C. 3506(c)(2)(A) (1995).
\12\ 5 U.S.C. 601 et seq. (1980).
\13\ 2 U.S.C. 1501 et seq. (1995).
\14\ Federalism, 64 FR 153 (Aug. 4, 1999).
\15\ 5 U.S.C. 804(2) (1996).
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1.1. Executive Orders
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, select regulatory approaches that maximize net
benefits (including potential economic, environmental, public health
and safety effects; distributive impacts; and equity). Executive Order
13563 emphasizes the
[[Page 51289]]
importance of quantifying costs and benefits, reducing costs,
harmonizing rules, and promoting flexibility.
Under Executive Order 12866, ``significant'' regulatory actions are
subject to review by the Office of Management and Budget (OMB).\16\
Section 3(f) of the Executive order defines a ``significant regulatory
action'' as an action that is likely to result in a rule (1) having an
annual effect on the economy of $100 million or more, or adversely and
materially affecting a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or state,
local, or tribal governments or communities (also referred to as
``economically significant''); (2) creating a serious inconsistency or
otherwise interfering with an action taken or planned by another
agency; (3) materially altering the budgetary impacts of entitlement
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or (4) raising novel legal or policy issues arising
out of legal mandates, the President's priorities, or the principles
set forth in the Executive order.
---------------------------------------------------------------------------
\16\ Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993).
---------------------------------------------------------------------------
A full regulatory impact analysis must be prepared for major rules
with economically significant effects (for example, $100 million or
more in any 1 year), and the Office of Management and Budget (OMB)
reviews ``significant'' regulatory actions. It has been determined that
this rule is not economically significant within the meaning of section
3(f)(1) of the Executive order. Pursuant to the terms of the Executive
order, OMB has determined, however, that this action is ``significant''
within the meaning of section 3(f)(4) of the Executive order.
Therefore, the DOL has provided an assessment of the potential costs,
benefits, and transfers associated with this proposed rule. In
accordance with the provisions of Executive Order 12866, this proposed
rule was reviewed by OMB. Pursuant to the Congressional Review Act, OMB
has designated this proposed rule as not a ``major rule,'' as defined
by 5 U.S.C. 804(2).
1.2. Introduction and Need for Regulation
The Form 5500 Annual Return/Report is the principal source of
information and data available to the Agencies concerning the
operations, funding, and investments of pension and welfare benefit
plans covered by ERISA and the Code. Accordingly, the Form 5500 Annual
Return/Report is essential to each Agency's enforcement, research, and
policy formulation programs and is a source of information and data for
use by other Federal agencies, Congress, and the private sector in
assessing employee benefit, tax, and economic trends and policies. The
Form 5500 Annual Return/Report also serves as the primary means by
which the operations of plans can be monitored by plan participants and
beneficiaries and the general public.
As discussed earlier in this document and the related NPFR
publishing concurrently with this proposal, the SECURE Act included
various provisions designed to improve the private employer-based
retirement system by seeking to make it easier for businesses to offer
retirement plans, and for individuals to save for retirement, through
the creation of new plan structure and reporting options. These new
structures will require new annual reporting, which has resulted in the
need to update the Form 5500 Annual Return/Report and related
regulations.
Pooled Employer Plans and Other MEPs: The SECURE Act amended ERISA
and the Code to address certain MEPs administered by pooled plan
providers. Under section 3(43) of ERISA such plans are called pooled
employer plans. The proposed regulation would add a new Schedule MEP to
the Form 5500 annual report to collect information on employers
participating in MEPs and to gather compliance information on pooled
employer plans. Some of the information on the proposed Schedule MEP is
currently reported on the Form 5500 Annual Return/Report by MEPs, but
it is reported on a nonstandard attachment. Only an image or picture of
the attachment is available through the EFAST2 public disclosure
function. Making the information data-capturable by including it on the
proposed Schedule MEP would improve the uniformity and accuracy of the
data and increase its usability.
``Defined Contribution Group (DCG) Reporting Arrangement'': Section
202 of the SECURE Act directs the Secretary of the Treasury and the
Secretary of Labor (together ``Secretaries'') to modify the returns
required under section 6058 of the Code and the reports required by
section 104 of the ERISA, respectively, so that all members of a group
of defined contribution individual account plans that meet certain
conditions may file a single aggregated annual return/report satisfying
the requirements of both such sections. The SECURE Act provides that to
constitute an eligible group of plans, all of the plans in the group
must be either individual account plans or defined contribution plans,
must have the same trustee, the same named fiduciaries, the same
administrator, plans years beginning on the same date, and must provide
the same investments or investment options to participants and
beneficiaries. The proposed rule would establish the conditions,
including the SECURE Act conditions, under which filing a single,
aggregated Form 5500 Annual Return/Report by a ``defined contribution
group (DCG) reporting arrangement'' would satisfy the individual,
annual reporting obligations for each of the plans participating in the
group. As discussed in more detail in the NPFR, the proposed rule also
includes adding a new Schedule DCG (Individual Plan Information) to
provide individual plan-level information for plans covered by a DCG
consolidated Form 5500 filing.
In addition, although not directly implementing SECURE Act changes,
some of the changes being proposed in this document are intended to
ensure that annual reporting by pooled employer plans, other MEPs, and
DCGs provides appropriate financial and operational transparency and
accountability. Certain proposed changes would benefit workers in plans
other than pooled employer plans and DCGs would apply more broadly,
e.g., improving the quality of financial reporting. Other changes being
proposed relate to efforts to improve compliance and oversight with
respect to the Code issues and defined benefit plans subject to the
PBGC insurance program under Title IV of ERISA.
Schedule H, Schedule of Assets Held for Investment, and Schedule of
Assets Acquired and Disposed of Within the Year: As discussed in the
NPFR, the Agencies are proposing structural, data element, and
instruction changes to the current Schedule H, Line 4i Schedules of
Assets. Current Line 4i would be broken into two items to identify the
existing schedules separately: Line 4i(1) would identify the Schedule
of Assets Held for Investment at End of Year, and Line 4i(2) would
identify the Schedule of Assets Acquired and Disposed of Within Year
(together ``Schedules of Assets''). The current regulations and
instructions require most large plans and DFEs to attach the Schedules
of Assets to the Form 5500, Schedule H.\17\
[[Page 51290]]
They are the only place on the Form 5500 Annual Return/Report where
plans are required to list individual plan investments identified by
major characteristics, such as issue, maturity date, interest rate,
cost and current value. As such, they are the only part of the Form
5500 Annual Return/Report useful to evaluate the year-to-year
performance, liquidity, and risk characteristics of a plan's individual
investments.
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\17\ In 2019, the plans required to file the Form 5500 included
any benefit plan or a welfare benefit plan that covered 100 or more
participants as of the beginning of the plan year and a Form 5500
filed for a master trust investment account (MTIA), common/
collective trust (CCT), pooled separate account (PSA), 103-12
investment entity (103-12 IE), or GIA. However, fully insured,
unfunded, or a combination of unfunded/insured welfare plans and
fully insured pension plans that meet the requirements of 29 CFR
2520.104-44 are exempt. If a Schedule I was filed for the plan for
the 2018 plan year or a Form 5500-SF and the plan covered fewer than
121 participants as of the beginning of the 2019 plan year, the
Schedule I may be completed instead of a Schedule H. Plans that file
a Form 5500-SF for the 2019 plan year are not required to file a
Schedule H for that year.
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The current reported information suffers from several shortcomings.
First, filers currently submit this information as non-standard
attachments to filers' electronic Form 5500 Annual Return/Report
filings, so only an image or picture of the attachments is available
through the EFAST2 public disclosure function. A survey panel of plan
sponsors, service providers, representatives of plan participants, and
researchers was conducted in 2014 as part of a Government
Accountability Office (GAO) report; 11 of 31 respondents indicated that
having no standard reporting format was a very or extremely significant
challenge. GAO reported that attachments to the form may be as long as
400 pages, making it particularly difficult for users to find
information.\18\ Second, filers do not always provide the Line 4i
Schedules of Assets in the same place in each annual return/report. For
example, the Line 4i Schedules of Assets are often incorporated in the
larger audit report of the plan's IQPA that itself is filed as a
nonstandard attachment to the Form 5500 Annual Return/Report. Third,
the schedules do not require a standardized method for identifying and
describing assets on the Line 4i Schedules. Different filings may
identify the same stock or mutual fund with various different names or
abbreviations. In the aforementioned GAO survey, most researchers
indicated that a lack of a standard reporting format or unique
identifier for plan assets was a major challenge, while representatives
of plan sponsors and service providers did not.\19\
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\18\ Private Pensions: Targeted Revisions Could Improve
Usefulness of Form 5500 Information, at 17.
\19\ Id.
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Data capturability of the Line 4i Schedules of Assets would make it
much easier and more efficient to monitor plan holdings as computer
programs can read and analyze the data much more efficiently.
Currently, entities expend considerable resources collecting the data
and presenting it in a usable format, to which they then sell access.
Making the information data capturable at the submission stage of the
process would be more cost effective as it removes the need for a
second entity to gather the information, and allow more entities access
to the data at a lower overall cost. The DOL's Office of Inspector
General (``DOL-OIG'') and the GAO have both recommended that EBSA
implement changes to create more detailed and structured Schedules of
Assets.\20\ It would also allow the Agencies and the interested public,
including the participants and beneficiaries in impacted plans, to
better monitor a larger number of pension plans and their asset
allocations. A number of private entities have been using the
information reported on Line 4i Schedule of Assets Held for Investment
in larger pension plan Form 5500 Annual Return/Report filings into
data-capturable information and have been using it to compare plan
investment menus and investment allocations. The DOL believes this
development is evidence that plans sponsors and their service providers
are interested in having access to these data. For example, one company
that uses the Schedules of Assets data sent a letter to DOL stating
that they believe that the information on the Form 5500 Annual Return/
Report is very useful in ``helping the agency understand the
performance and design of retirement plans in the market place'' and
that the data availability fosters ``third party data collection and
evaluation efforts that in turn help protect retirement plan
participants.'' \21\ Plan sponsors can use this information to see
better how their investment menus compare to similarly situated plans
and service providers use this information to identify plans with
underperforming investments in order to attract new business. This can
lead to more competition and improved plan performance, which would
ultimately benefit plan participants and beneficiaries.
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\20\ See EBSA Needs to Provide Additional Guidance and Oversight
to ERISA Plans Holding Hard-to-Value Alternative Investments at 17,
September 30, 2013. https://www.oig.dol.gov/public/reports/oa/2013/09-13-001-12-121.pdf; Private Pensions: Targeted Revisions Could
Improve Usefulness of Form 5500 Information, at 37. June 5, 2014.
https://www.gao.gov/products/gao-14-441.
\21\ See August 23, 2010 Comment Letter from Ryan Alfred,
President, BrightScope, Inc. Re: Proposed Extension of Information
Collection, Form 5500 https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201009-1210-002).
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Defined Benefit Pension Plan/ERISA Title IV Additions: The Form
5500 collects information from defined benefit pension plans in
Schedules MB, SB, and R. The PBGC has determined that it needs more
detail in these schedules accurately to project defined benefit pension
plan and PBGC insurance program liabilities. The PBGC's proposed
changes to the information required to be reported by PBGC-insured
defined benefit plans would remedy the deficiencies of the current Form
5500 filings and better protect participants. There are 23,371 single
employer defined benefit plans and 1,373 multiemployer defined benefit
plans that are covered by the PBGC and would be impacted by these
changes.\22\
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\22\ PGBC 2018 Pension Insurance Data Tables. https://www.pbgc.gov/sites/default/files/2018_pension_data_tables.pdf.
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Internal Revenue Code Compliance Additions: Prior to 2009, Schedule
E, ESOP Annual Information, Schedule P, Annual Return of Fiduciary of
Employee Benefit Trust, and Schedule T, Qualified Pension Plan Coverage
Information, were required as part of the annual return under section
6058(a) of the Code and associated regulations, but they were not
information collections of the DOL or the PBGC. Beginning in 2009, DOL
mandated electronic filing of Form 5500, Annual Return/Report of
Employee Benefit Plan, and Form 5500-SF, Short Form Annual Return/
Report of Small Employee Benefit Plan. At that time limitations on the
IRS' authority to require electronic filing of annual returns resulted
in the removal of the ``IRS-only'' schedules from the Form 5500 filing
requirements. The lack of information from these schedules has
negatively impacted the IRS's ability to focus effectively on specific
factors of noncompliance when selecting retirement plans for
examination. Rather than reinstating the Schedules E, P, and T, the IRS
is proposing to add new questions to the 2022 Form 5500 designed to
assist the IRS in identifying plans that are non-compliant relating to
Code section 410(b) coverage, Code section 401(a)(4) non-
discrimination, and Code section 401(k) non-discrimination testing.
Additionally, IRS is proposing to add a question that would help it
identify whether adopters of pre-approved plans have been updated
timely for changes in the law.
Affected Entities
Major portions of this proposal relate to SECURE Act statutory
changes that
[[Page 51291]]
(1) recognized a new type of multiple employer plan under Title I of
ERISA called pooled employer plans; and (2) called for the Secretaries
to establish a new consolidated annual report for certain groups of
defined contribution pension plans (herein called DCG reporting
arrangements). The SECURE Act amendments first authorized pooled
employer plans to begin operating beginning on January 1, 2021; even
early adopted pooled employer plans generally will not file a Form 5500
before July 2022. Similarly, DCG reporting arrangements are a new
filing option starting with the 2022 plan year; such consolidated
filings will not begin until July 2023. Thus, there is no historical
Form 5500 information that the DOL can use reliably to evaluate the
number of affected entities. As a result, there is significant
uncertainty regarding the DOL's ability to measure costs and benefits
that may result from this proposal. The DOL nonetheless is presenting
below an overview of potentially affected entities and an approach to
evaluating the possible impacts of this proposal. In evaluating costs
and benefits, the DOL took account of the fact that various types of
plans could be affected by more than one proposed revision. DOL is also
soliciting data relevant to an evaluation of costs and benefits and
comments on alternative methodologies and assumptions for evaluating
the costs and benefits.
Defined Contribution Pension Plans: In 2018, there were 675,007
defined contribution plans with 105.8 million total participants and
83.4 million active participants. Plans with fewer than 100 total
participants (small plans) account for 87.4 percent of plans.\23\
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\23\ Employee Benefits Security Administration. ``Private
Pension Plan Bulletin, Abstract of 2018 Form 5500 Annual Report.''
(2020). The 2018 Form 5500 data set is the most recent available
because Form 5500 filings for the 2018 reporting year generally are
not required to be filed for calendar year plans until July through
October of 2019, and the deadline for fiscal year plans may extend
well into 2020. The User Guide for the 2018 Form 5500 Private
Pension Plan Research File includes a discussion of the creation of
the annual data set and timing of data extraction. See www.dol.gov/sites/dolgov/files/EBSA/researchers/data/retirement/pension-user-guide-2018.pdf (Accessed July 21, 2021).
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Defined Contribution Group (DCG) Reporting Arrangement: As this is
a new type of annual reporting method, the DOL does not have data on
how many DCGs would be created nor the number of plans that would
choose to satisfy their individual filing obligations by meeting the
requirements for being part of a DCG, including the filing of a
consolidated Form 5500 Annual Return/Report by the common plan
administrator. We note that in 2018 there were 499,234 small defined
contribution plans that reported the plan characteristic code 3D in
their Form 5500-SF to indicate that they are intended to operate as
pre-approved plans under sections 401, 403(a), and 4975(e)(7) of the
Code. The DOL assumes that a DCG reporting option may suit their
existing plan and business models and that, therefore, some fraction of
these plans may find it advantageous to join a DCG for filing purposes.
Defined Benefit Pension Plans: In 2018, there were 46,869 defined
benefit plans with 34.0 million total participants and 13.1 million
active participants. There were 45,275 single-employer defined benefit
plans and 1,388 multiemployer defined benefit plans.\24\
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\24\ Id.
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Multiple Employer Pension Plans: A MEP, for Form 5500 reporting
purposes, generally is a retirement plan maintained by two or more
employers that are not members of the same controlled group or
affiliated service group under Code section 414(b), (c), or (m), and
which is not a multiemployer plan.\25\ In 2018, there were 4,730 MEPs
filing a Form 5500, of which 207 were defined benefit pension plans and
4,523 were defined contribution pension plans. There were 6.9 million
participants reported as covered by these plans.\26\ The proposal, if
finalized, would establish a new Schedule MEP to report information
specific to pension MEPs. While the new Schedule MEP would retain ERISA
section 103(g) participating employer information that MEPs must
currently file as a non-standardized attachment, it also would add the
SECURE Act requirement for pension MEPS to report aggregate account
balances information for each participating employer in the MEP.
Schedule MEP would also include questions intended to focus on SECURE
Act issues and compliance for pooled employer plans.
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\25\ See, e.g., 2020 Form 5500 instructions at 14.
\26\ Employee Benefits Security Administration. ``Private
Pension Plan Bulletin, Abstract of 2018 Form 5500 Annual Reports.''
(June 2020).
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Association Retirement Plan. An association retirement plan is a
defined contribution MEP, sponsored by a bona fide group or association
of employers that meets the conditions under 29 CFR 2510.3-55(b). The
DOL does not have information on how many reporting MEPs are
association retirement plans or otherwise to estimate the number of
association retirement plans (a sub-class of MEPs) that currently
exist.
Professional Employer Organizations (PEOs) Plan: A PEO MEP is a
defined contribution pension plan sponsored by a bona fide PEO that
meets the conditions under 29 CFR 2510.3-55(c). According to the
National Association of Professional Employer Organizations, there are
487 PEOs in the United States.\27\ The DOL does not have information on
how many PEOs currently meet the conditions under 29 CFR 2510.3-55(c)
to sponsor defined contribution MEPs for their clients, but assumes a
substantial percentage of PEOs do sponsor MEPs, including defined
contribution MEPs.
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\27\ National Association of Professional Employee
Organizations, Industry Statistics (Accessed 6/28/2021), https://www.napeo.org/what-is-a-peo/about-the-peo-industry/industry-statistics. NAPEO had previously reported 904 PEOs but revised its
methodology. An explanation of the revision is included on the NAPEO
website. See The PEO Industry Footprint 2021, Laurie Bassi and Dan
McMurrer, McBassi & Company at page 4 (May 2021) (available at
www.napeo.org/docs/default-source/white-papers/2021-white-paper-final.pdf?sfvrsn=6dde35d4_2.
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Pooled Employer Plans. The SECURE Act amended section 3(2) of ERISA
and added section 3(43) to ERISA to authorize a new type of ERISA
covered defined contribution MEP referred to as a ``pooled employer
plan'' to be operated by a ``pooled plan provider.'' In its 2020 final
rule on Registration Requirements for Pooled Plan Providers, the DOL
noted the uncertainty surrounding the number of pooled employer plans
that could be created based on the final rule, the number of employers
that would participate in such plans, and the number of participants
and beneficiaries that would be covered by them.\28\ Approximately 50
pooled plan providers have filed an initial Form PR Pooled Plan
Provider Registration (Form PR) and registered with the DOL.\29\
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\28\ 85 FR 72934, 72949 (Nov. 16, 2016).
\29\ Department of Labor. Form PR. https://www.dol.gov/agencies/ebsa/employers-and-advisers/plan-administration-and-compliance/reporting-and-filing/form-pr.
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The DOL does not have comprehensive data on how many employers are
participating in pooled employer plans or the number of participants
covered by the plans until the pooled employer plans file their first
Forms 5500 in 2022 for their 2021 reporting year. The DOL attempted to
review available public information on pooled employer plans by looking
at information included in the filed Forms PR, and by examining news
articles and statements on the pooled plan provider's websites. That
review indicated that that there are a variety of approaches in how
pooled employer plans are offered, and a variation in the
[[Page 51292]]
number of employers that have joined a pooled employer plan. While
pooled plan providers are required to update the Form PR to advise the
DOL and the IRS about the establishment and offering of new pooled
employer plans, the Form PR does not collect information on the number
of employers participating in their pooled employer plans or the number
of employees covered by each plan. One pooled plan provider was
reported in another source as having 2,000 employers joined their
pooled employer plan, whereas other providers reported five to 10
employers had joined their pooled employer plans. As part of the
request for comments, the DOL is seeking information on the number of
employers that have already joined a pooled employer plan and the
number of employees covered by the plan in total and broken down by
employer.
Pre-approved Pension Plans: These are plans that reported plan
characteristics code 3D when filing the Form 5500 Annual Return/Report.
The code 3D indicates ``A pre-approved plan under sections 401, 403(a),
and 4975(e)(7) of the Code that is subject to a favorable opinion
letter from the IRS.'' A pre-approved retirement plan is a plan offered
to employers by financial institutions and others that are authorized
to sponsor pre-approved plans. The pre-approved plan provider then
makes the IRS-approved plan available to adopting employers. Providers
must make reasonable and diligent efforts to ensure that adopting
employers of the plan have actually received and are aware of all plan
amendments and that such employers complete and sign new plans when
necessary.\30\ Of the 611,568 defined contribution pension plans that
reported code 3D, 544,090 are reported as small plans, as they report
having fewer than 100 participants each. Of these small defined
contribution plans, 499,234 file the Form 5500-SF, cover approximately
10.0 million participants, and hold approximately $0.6 trillion in
assets. The DOL expects that Form 5500-SF small pension plan filers are
the most likely candidates to join a DCG or a pooled employer plan. The
DOL lacks information on the number of plans, whether or not currently
Form 5500-SF eligible filers, that would join a DCG or a pooled
employer plan. The DOL is seeking comment on this issue.
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\30\ IRS website at https://www.irs.gov/retirement-plans/pre-approved-retirement-plans (last updated Apr 2, 2021).
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Multiple Employer Welfare Arrangement (MEWA): A MEWA is defined in
ERISA section 3(40)(B) generally as an employee welfare benefit plan or
any other arrangement, which is established or maintained for the
purpose of offering or providing welfare benefits to the employees of
two or more employers, or to their beneficiaries. For purposes of this
definition, two or more trades or businesses, whether or not
incorporated, are deemed a single employer if such trades or businesses
are under common control. Section 3(40) excludes from the definition of
the term MEWA any plan or arrangement established or maintained under
or pursuant to a collective bargaining agreement, or by a rural
electric cooperative or rural telephone cooperative association. MEWAs
that offer or provide coverage for medical benefits are generally
required to file the Form M-1. In the 2018 calendar year, there were
640 total plan MEWAs that filed a Form M-1 with 2.0 million total
participants. There were 47 non-plan MEWAs based on Form M-1
filings.\31\
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\31\ These figures are based on calculations from 2018 Form M-1
filing data.
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Plans affected by change in participant-count methodology for
determining large plan versus small plan status and related filing
requirements. As discussed in the NPFR, the Agencies are proposing a
change in the methodology for defined contribution pension plans to
determine whether the plan is a ``large plan'' (generally covers 100 or
more participants) for purposes of Form 5500 annual reporting
requirements, including the requirement to include an IQPA report and
other schedules generally applicable to large pension plans. The plan
size measure for this annual reporting distinction is based on the
total number of participants at the beginning of the plan year and
expressly includes employees eligible to participate in a Code section
401(k) plan (``401(k) plan'') even if the employees has not elected to
participate and does not have an account balance. The proposed change
would use a participant count based on the number of participants at
the beginning of the year with an account balance. Current Form 5500
filings collect the number of participants at the end of the year with
a balance, and does not currently collect such a figure for the
beginning of the plan year. Accordingly, we used the end of year number
of participants with a balance to estimate the number of plans impacted
by this change. The actual number of plans effected could be higher or
lower, depending on a plan's dynamics, but for plans that are growing,
using the end of year number as a proxy for the beginning of year
number could lead to an overestimate of the number of affected plans.
Using the current definitions of large and small plans, there are
84,754 large defined contribution plans and 590,254 small defined
contribution plans. Using the number of participants at the end of the
year with an account balance as a proxy for the new proposed
methodology, there are 65,312 large defined contribution plans and
609,695 small defined contribution plans. This would result in an
estimated 19,442 defined contribution plans that, if the regulations
are finalized as proposed, would be able to file as small plans instead
of large ones and would experience cost savings, including due to being
able to satisfy the conditions for being exempt from the IQPA report
and from including the Schedules of Assets as part of their annual
report.
Benefits
Benefits of Changes for Pooled Employer Plans. The SECURE Act
established a new type of ERISA-covered defined contribution pension
plan, the pooled employer plan, that is established and maintained by a
pooled plan provider that meets the conditions of the statute. By
creating the pooled employer plan structure, the SECURE Act permitted
multiple unrelated employers to participate without the need for any
common interest among the employers (other than having adopted the
plan). As discussed above, pooled employer plans need to provide ERISA
section 103(g) participating employer information, as well as certain
basic information regarding the pooled plan provider. Potentially
increased reporting costs for those employers choosing to offer
retirement benefits to their employees through participating in a
pooled employer plan would be offset by other cost reductions or
business benefits relative to not having administer an individual plan
as further discussed below.
By participating in a pooled employer plan, employers could
minimize their fiduciary responsibilities for ongoing administration
and operation of the plan. Employers could benefit from reduced risk
and liability because the pooled plan provider would bear most of the
administrative and fiduciary responsibility for operating the pooled
employer plan, including hiring and monitoring the 3(38) investment
manager. Similarly, because the pooled plan provider handles the
administrative tasks such as participant communications, plan
recordkeeping, submitting the Form 5500 and complying with plan audits,
this could increase the operating efficiency for participating
employers. Also, as they
[[Page 51293]]
are expected to be professional plan providers, it is anticipated that
a pooled plan provider, relative to a small employer, would ensure that
more accurate and complete data is reported to the DOL on the Form
5500. Further, as discussed in the regulatory impact analysis to the
regulation establishing the Form PR, pooled employer plans generally
would benefit from scale advantages, including the ability to obtain
lower fees for investment options.\32\ The marginal costs for pooled
employer plans would diminish and pooled plan providers would spread
fixed costs over a larger pool of member employers and employee
participants, creating direct economic efficiencies. Szapiro's research
finds that the per-employer cost of a large MEP can be lower than the
cost of a small single employer plan.\33\ Specifically, the study finds
that a MEP with $125 million and 80 participating companies cost 78
basis points, whereas a single-employer plan with $1.5 million cost 111
basis points. Thus, compared to single-employer plans, MEPS can be a
more cost-efficient option for small employers. The increased economic
efficiency may result in small businesses being able to compete more
easily with larger companies in recruiting and retaining workers due to
a competitive employee benefit package. Finally, pooled employer plans
may enable participants to achieve better retirement outcomes.
VanDerhei's research finds that the adoption of a MEP in which the
members do not need to share a common interest, other than
participating in the same plan, with a 25 percent opt-out rate among
employees, results in an overall 1.4 percent reduction in the
retirement savings deficit, compared to when a MEP is not adopted.\34\
The study also finds a 3.1 percent reduction in the retirement savings
deficit for individuals working for employers with fewer than 100
employees and 3.3 percent reduction in the retirement savings deficit
for individuals working for employers with 100 to 500 employees.
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\32\ 85 FR at 72949-72950.
\33\ Szapiro, Aron, ``Pooled Employer Plans: Paperwork or
Panacea.'' Accessible at https://www.morningstar.com/lp/paperwork_or_panacea.
\34\ VanDerhei, Jack. ``How Much More Secure Does the SECURE Act
Make American Workers: Evidence from EBRI's Retirement Security
Projection Mode.'' EBRI Issue Brief. No 501 (2020). VanDerhei refers
to MEPs in which the members do not need to share a common interest
as ``Open MEPs.'' (Available at https://www.ebri.org/docs/default-source/ebri-issue-brief/ebri_ib_501_secure-20feb20.pdf?sfvrsn=db6f3d2f_4 (Accessed July 21, 2021.)).
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Benefits of Establishing the Proposed Schedule MEP. A benefit of
the proposed Schedule MEP would provide a unified vehicle to report
information related to new SECURE Act provisions, including information
unique to MEPs. The participating employer information collected
pursuant to section 103(g) of ERISA would also be data capturable and
available at publicly viewable website containing images of the Form
5500 and related data sets. That public data would help protect plan
participants and beneficiaries by allowing for improved analysis for
oversight and research purposes by the government, the regulated
community, and other interested stakeholders.
Benefits of DCGs. The proposal would update Form 5500 annual
reporting requirements to establish requirements pursuant to section
202 of the SECURE Act for a consolidated return/report to provide
eligible individual account plans with an alternative method of
compliance with annual reporting requirements that would otherwise
mandate a separate annual report for each plan. The consolidated
reporting option for defined contribution pension plans also allows for
more choice and flexibility in the reporting of information to the
government. Eligible plans can choose, based on benefits and
preferences, if they want to continue with the plan filing as
individual plan or as part of a DCG. Plans whose individual reporting
obligations would be satisfied by a DCG annual return/report filing may
see a reduction in reporting costs depending on their circumstances.
The proposal includes the proposed Schedule DCG to provide
individual plan-level information for those defined contribution
pension plans whose annual reporting requirement would be satisfied by
a DCG's consolidated filing. The uniformity of the DCG arrangement
structure and the benefits of consolidated reporting may reduce the
complexity and administrative burden of plans. Also, by having a common
plan administrator who is expected to be a professional service
provider filing on behalf of a group, it may increase the likelihood
that more accurate and complete data is reported to the DOL. As a
result, there may be an increase in annual reporting compliance and
compliance with applicable ERISA requirements in general. Additionally,
the Schedule DCG would help the Agency compare individual plan
participation and aggregate asset and liability information from year-
to-year. The Schedule DCG would include many of the questions that are
currently required on the Form 5500-SF, and for large plans, the
Schedule H questions regarding the report of an IQPA, as well as an
IQPA report. While this requirement reduces the cost saving of filing
as a DCG, the DOL and the IRS (collectively ``Departments'') believe
the information requested is consistent with the SECURE Act provision
permitting the Departments to collect whatever plan level information
is needed to perform adequate oversight and vital to provide to
participants, beneficiaries, and the Departments information needed to
adequately monitor the plans and keep track of their assets from year
to year.
In light of changes in the financial environment and increasing
concern about investments in hard-to-value assets and alternative
investments, the proposed requirement that plans participating in DCGs
must have investments that meet the currently applicable ``eligible
plan investment'' criteria for filing a Form 5500 is important for
regulatory, enforcement, and disclosure purposes. The proposal would
also add trust questions to the Form 5500, the Form 5500-SF, and, the
IRS Form 5500-EZ, regarding the name of the plan's trust, the trust's
employer identification number (EIN), the name of the trustee or
custodian, and the trustee's or custodian's telephone number. This
information will enable the Agencies to focus more efficiently on
compliance concerns for retirement plan trusts, including those for
pooled employer plans and DCG reporting arrangements.
Changes to Method of Determining Small Plan Status for Certain
Filing Exemptions and Requirements: As described in the NPFR, the
proposal would change the current method of counting covered
participants for purposes of determining when a defined contribution
plan may file as a small plan and whether the plan may be exempt from
the IQPA audit requirements generally applicable to large defined
contribution pension plans. Under the proposal, defined contribution
pension plans, including 401(k) plans and 403(b) plans, would determine
whether they have to file as a large plan and whether they have to
attach an IQPA report based on the number of participants with account
balances as of the beginning of the plan year. Currently, the IQPA
requirement includes the total number of eligible participants at the
beginning of the plan year, even if the participant is not making
contributions, receiving employer contributions, or maintaining an
account in the plan. Further, some stakeholders have suggested that
section 112 of the SECURE Act could make it even more likely that a
plan with a small number of active participants
[[Page 51294]]
might be required to bear the cost of an audit based on eligible, but
not participating employees being counted toward the audit threshold.
Specifically, because section 112 provides that, beginning January 1,
2024, long-term, part time workers that have reached the plan's minimum
age requirement and have worked at least 500 hours in each of three
consecutive 12-months period must be permitted to make elective
contributions to a section 401(k) qualified cash or deferred
arrangement, there could be more employees eligible to participate that
would elect not to do so. This change in counting methodology would
result in not counting, for this annual reporting purpose, those long-
term, part time workers who are eligible to make elective contributions
to a 401(k) plan, but have not in fact elected to participate in the
plan. The DOL expects that excluding from the participant count
participants who are eligible to participate but do not have an account
balance at any time during the plan year will reduce expenses of
establishing and maintaining a retirement plan, and as a consequence,
encourage more employers to offer workplace-based retirement savings
plans to their employees.
Improving Consistency and Enhancing Usability of Data Filed on the
Schedules of Assets. The financial information reported on the Form
5500 Annual Return/Report, particularly the asset/liability statement,
contained in the current Schedule H (Large Plan Financial Information),
Schedule I (Small Plan Financial Information), as well as the more
recently established Form 5500-SF, is based on data elements that have
remained largely unchanged since the Form 5500 Annual Return/Report was
established in 1975. Many investments in alternative and hard-to-value
assets and held in collective investment funds do not fit squarely into
any of the existing reporting categories on data captured financial
schedules filed with the Form 5500 (Schedule H for large plans and
Schedule I for small plans). The GAO has expressed concerns that many
investments with widely varying risk, return, and disclosure
considerations are often reported in the catchall ``other plan asset''
category.\35\ GAO also noted that the plan asset categories on the
Schedule H are not representative of current plan investments, and
provide little insight into the investments themselves, the level of
associated risk, or structures of the investments.\36\ The DOL-OIG have
also recommended that the Agencies revise the Form 5500 Annual Return/
Report to improve reporting of hard-to-value assets and alternative
investments.\37\ As part of their overall evaluation of how best to
structure financial reporting for pooled employer plans, MEPs, and DCG
reporting arrangements to maximize usable data while limiting burden
increases, the Agencies decided, as discussed in detail earlier in this
document and the Notice of Proposed Forms Revisions published
simultaneously, to propose format, data element and instruction changes
to the Schedule H, Line 4i Schedule of Assets Held for Investment and
the Schedule of Assets Acquired and Disposed of Within the Plan Year.
Although driven by an interest in ensuring transparency and financial
accountability for pooled employer plans, MEPs, and DCG reporting
arrangements, the rationales for the changes applied more generally to
large pension and retirement savings plans. These changes apply to
large plans required to file the Schedules of Assets and would not
increase the annual reporting burden for small plans. The proposed
changes to the Schedule H Line 4i Schedules of Assets, in addition to
better meeting the needs of the Agencies, other government users, and
other end users of the data, should serve to address the shortcomings
identified in these reports. The basic objective of general financial
reporting is to provide information about the reporting entity for the
Agencies' enforcement, research, and policy formulation programs, for
other Federal agencies, Congress, and the private sector in assessing
employee benefit, tax, and economic trends and policies; and for plan
participants and beneficiaries and the general public in monitoring
employee benefit plans. Making consistent the financial reporting
instruments would bring greater transparency to plan transactions,
which would enhance the efficiency of the Agencies' enforcement
efforts. Specifically, the Agencies would be better able to focus their
enforcement efforts, which will reduce the number of investigations
involving plans that are not engaging in problematic activities.
Additionally, ERISA Section 513(a) authorizes and directs the Secretary
of Labor and EBSA to conduct a research program on employee benefits.
The Form 5500 Annual Return/Report is one of the leading sources of
data used in this research program. Making uniform and receiving in a
data searchable way the financial information reported on the Form 5500
Annual Return/Report would improve the quality of the research
conducted by internal and external researchers. This improved research,
in turn, would improve the quality of policy decisions made by DOL and
other governmental policymakers that rely on the Form 5500 Annual
Return/Report data.
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\35\ GAO Targeted Revisions Could Improve Usefulness of Form
5500 Information, at 12.
\36\ Id.
\37\ EBSA Needs to Provide Additional Guidance and Oversight to
ERISA Plans Holding Hard-To-Value Alternative Investments,
Department of Labor Office of Inspector General Report Number: 09-
13-001-12-121 at 4, 18, and 19.
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Benefits of Maintaining Participating Employer Information for
MEWAs and Expanding It to Non-Plan MEWAs that Provide Medical Benefits.
The proposal, as described in the NPFR, would add new questions to the
Form M-1 and instructions to require MEWAs (plan and non-plan) that
offer or provide coverage for medical benefits to provide multiple
employer participating employer information on the Form M-1 and not as
an attachment to the Form 5500 Annual Return/Report. Plan MEWAs that
provide other benefits and thus are not required to file a Form M-1
(i.e., life and disability benefits) would continue to report the
participating employer information as an attachment to the Form 5500
Annual Return/Report.
The proposal would also change which MEWAs are required to report
the participating employer information. The current Form 5500
requirement for MEPs to report participating employer information
applies to plan MEWAs only. Non-plan MEWAs providing health benefits
would now have to provide the information. Based on 2018 Form M-1
filings, there were 640 plan MEWAs and 47 were non-plan MEWAs.\38\ The
proposal, by transferring the participating employer information from
the Form 5500 Annual Return/Report to the Form M-1 for MEWAs that offer
or provide coverage for medical benefits and continuing to require
reporting of participating employer information on the Form 5500 Annual
Return/Report for plan MEWAs that provide other benefits, would enable
the Agencies to receive participating employer information from both
plan and non-plan MEWAs, regardless of how they are funded or
structured. This would help the Agencies better monitor activities of
MEWAs and protect plan beneficiaries.
---------------------------------------------------------------------------
\38\ These calculations are based on internal Department
calculations based on 2018 Form M-1 filings. See the affected
entities section for more information.
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[[Page 51295]]
Internal Revenue Code-Based Questions for the 2022 Form 5500s. In
the NPFR, several questions are being proposed to be added to the 2022
Form 5500s to help identify plans that are more likely to experience
compliance issues, and help the IRS more effectively conduct
investigations. Section III.F of the preamble to the NPFR provides a
description of these proposed Code-based questions. The proposal, as
set forth in the NPFR, would add a nondiscrimination and coverage test
question to Form 5500 and Form 5500-SF that was on the Schedule T
before it was eliminated. The question asks if the employer aggregated
plans in testing whether the plan satisfied the nondiscrimination and
coverage tests of Code sections 401(a)(4) and 410(b). Adding this
question will allow EP to identify these plans for examination. This
question is also helpful when performing pre-audit analysis and allows
the IRS to narrow any inquiries for information that is requested from
the plan sponsor. The restoration of this question also reflects the
elimination of optional coverage and nondiscrimination demonstrations
in the IRS determination letter process. See Rev. Proc. 2012-6, 2012-1
I.R.B. 235 and Announcement 2011-82, 2011-52 I.R.B. 1052.
The proposal, as described in the NPFR, would add a question to
Form 5500 and Form 5500-SF, for 401(k) plans asking whether the plan
sponsor used the design-based safe harbor rules or the ``prior year''
ADP, or ``current year'' ADP test, or if it is not applicable. A plan
that performs ``prior year'' or ``current year'' ADP testing is more
likely to have compliance issues than a plan with a ``designed-based
safe harbor.'' Adding this question, would allow EP to identify 401(k)
plans that use ADP testing for examination over plans that have
designed-based safe harbors. This question would also help the IRS
perform pre-audit analysis and for design-based safe harbor plans allow
us to verify whether allocations of required safe harbor contributions
comply with the terms of the plan; and whether proper notice
requirement is satisfied on an annual basis.
Finally, the proposal, as indicated in the NPFR, would add a
question to Form 5500 and the Form 5500-SF asking whether the employer
is an adopter of a pre-approved plan that received a favorable IRS
Opinion Letter, the date of the favorable Opinion Letter, and the
Opinion Letter serial number.\39\ This question would help the IRS
identify whether a plan sponsor has adopted a pre-approved plan and to
determine whether the plan was adopted timely in accordance with the
Code section 401(b) remedial amendment period. This question would also
assist IRS in determining whether to select a plan for examination as a
late amender for changes in the law.
---------------------------------------------------------------------------
\39\ IRS is proposing to make a parallel update to the Form
5500-EZ, which is solely in the jurisdiction of the IRS.
---------------------------------------------------------------------------
Defined Benefit Plan/Title IV Questions for the 2022 Form 5500s:
The proposed changes to the Form 5500 Schedules MB, SB, and R would
help remedy data and information inadequacies, increasing plans'
transparency, enable Agencies to project more precisely defined benefit
pension plans' and insurance programs' liabilities, and help the PBGC
more effectively conduct investigations and better protect plan
participants and beneficiaries.
Schedule MB collects actuarial information on multiemployer defined
benefit plans and certain money purchase plans. By revising line 6 and
clarifying the expense load percentage calculation, the Agencies would
be able to easily identify the expense load and more accurately project
plan liabilities to model the impact of additional employers
withdrawing from the plan in the future. The proposed changes to the
schedule would provide greater transparency in the actuarial status and
the actuarial assumptions of the plans. Based on reviewing previously
filed Schedules MB responses to line 4f, it appears to the Agencies
that there is some confusion as to how to fill out line 4f of Schedule
MB correctly, as some of the responses do not make sense. Clarification
of the instructions and line language is intended to remove potential
confusion and provide more consistent and correct responses.
Schedule SB collects actuarial information on single-employer
defined benefit plans. The proposed changes would better align filing
requirements for single-employer defined benefit plans with the more
detailed requirements for PBGC-insured multiemployer plans. As with the
proposed changes to the Schedule MB, these proposed changes would allow
for greater transparency in the actuarial status and the actuarial
assumptions of the plans.
Schedule R collects information on retirement plans. Previously,
multiemployer defined-benefit pension plans were required to report
identifying information about any employer whose contributions to the
plan exceeded five percent of total annual contribution. The regulation
proposes, instead, to require plans to report identifying information
on any employer who (1) contributed more than five percent of the
plan's total contributions or (2) was one of the top ten highest
contributors. This would provide greater transparency on contributors
and ensure that reported data represents a reasonable sampling of
contributors.
The proposed regulation also proposes changes in format for certain
attachments. EFAST2 filers currently file some Form 5500 attachments as
PDF and plain text files. Due to the nature of the attachments, they
often include many numbers that are difficult to extract from these
file types. There is consideration being given to steps that could be
taken to allow more integration of common tabular formats (spreadsheet)
such as Comma Separate Value(s) (CSV). As this is not being considered
as a requirement at this point, plans would not incur an additional
cost if such functionality were made available. Rather, the Agencies
expect this option may simplify the process for preparing and filing
attachments.
1.3. Cost Estimates and Savings
The DOL anticipates that the costs for plans to satisfy their
annual reporting obligations would on average decrease under these
proposed regulations relative to the current regime.\40\ As shown in
Table 1 below, the aggregate annual cost of such reporting under the
current regulations and forms is estimated to be $514.8 million
annually, shared across the 822,100 filers subject to the filing
requirement.
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\40\ The DOL believes that the annual cost burden on filers
would be higher still in the absence of the regulations enabling use
of the Form 5500 Annual Return/Report in lieu of the statutory
requirements. Without the Form 5500 Annual Return/Report, filers
would not have the benefits of any regulatory exceptions, simplified
reporting, or alternative methods of compliance, and standardized
and electronic filing methods.
---------------------------------------------------------------------------
The DOL estimates that the regulations and forms revisions in this
proposed rule would impose an annual burden of $514.1 million on
804,100 filers, for a total decrease of $64.6 million annually, $63.9
million annually in audit cost savings and $0.7 million annually in
other reporting costs. This proposal makes important changes to the
requirements currently in effect while also allowing for the number of
small plans and large plans to change for annual reporting purposes.
The DOL estimates that a total of 17,601 small plans and 563 large
plans would opt to join either a DCG or a pooled employer plan, and
therefore have their filing requirement fulfilled by these
[[Page 51296]]
entities. The DOL also estimates that 19,442 large plans would be re-
defined and file as small plans as a result of the change in the
current threshold for determining when a defined contribution plan may
file as a small plan.
Table 1--Estimated Burden Change by Type of Filer
All Proposed Changes
----------------------------------------------------------------------------------------------------------------
Number of Number of
filers under filers under Aggregate cost Aggregate cost Aggregate cost
Type of plan current proposed under current under proposed change
(thousands) (thousands) (millions) (millions) (millions)
----------------------------------------------------------------------------------------------------------------
Large Plans..................... 146.8 126.9 $268.8 $260.3 -$8.4
Small Plans..................... 666.1 667.9 234.7 235.2 0.5
DFEs............................ 9.3 9.4 11.4 18.6 7.2
-------------------------------------------------------------------------------
All Plans................... 822.1 804.1 514.8 514.1 -0.7
----------------------------------------------------------------------------------------------------------------
Audit Cost -63.9
----------------------------------------------------------------------------------------------------------------
Overall Total -64.6
----------------------------------------------------------------------------------------------------------------
Note: Some displayed numbers do not sum up to the totals due to rounding.
Large plans--100 participants or more.
Small plans--generally fewer than 100 participants.
To estimate the net change in cost burden, as a result of the
interaction of the proposed changes, the DOL has also analyzed the cost
impact of the individual revisions on classes of filers. In doing so,
the DOL took account of the fact that various types of plans would be
affected by more than one revision and that the sequence of multiple
revisions would create an interaction in the cumulative burden on those
plans. The total changes in Table 1 show the accumulated changes. The
other tables below show only the impact of a single change at a time
from the status quo; therefore, the tables cannot be added to arrive at
the estimates in Table 1.
Schedule MEP and Pooled Employer Plans. The proposed new Schedule
MEP would be filed by all MEPs, including pooled employer plans, and
includes participating employer information already filed as an
attachment, as well as limited specific reporting requirements for
pooled employer plans. The information on participating employers would
then be data-readable, whereas currently it is only included as a
nonstandard attachment. As discussed in the affected entities section,
estimates are available for MEPs that have filed a Form 5500
previously, but not for the newly created pooled employer plans that
have yet to file a Form 5500. The impacts of the DOL recent rulemaking
on association retirement plans and PEO MEPs also carries some
uncertainty regarding the number of MEPs that may be affected.
Approximately 50 entities have filed the Form PR to register as pooled
plan providers. Therefore, for purposes of this analysis, the DOL
assumes there would be a total of 75 pooled employer plans. As it is
the case with MEPs, joining a pooled employer plan translates into less
plan maintenance expenditures given that MEPs can take advantage of
economies of scale. Additionally, in the DOL's view, the information
requested on the Schedule MEP should already be available to plans, so
the burden is primarily entering the information onto the form. The
burden to file the Schedule MEP is estimated to average 10 minutes for
MEPs and 14 minutes for pooled employer plans, with variation depending
on the number of participating employers.
Although the DOL does not know for certain how many plans would
decide to offer benefits through a pooled employer plan, it is assumed
that the current average number of participating employers in a MEP is
indicative of the average number of employers that would eventually be
in any particular pooled employer plan that may be established in the
future. The DOL estimates that MEPs, on average, have nine employers
participating in a MEP with fewer than 100 participants and two
employers with 100 or more participants. The DOL uses these measures as
estimates for most of the upcoming pooled employer plans, therefore
assuming that, for most pooled employer plans, on average there would
be nine small participating plans and two large participating plans per
pooled employer plan. Combined with one pooled plan provider registrant
that has already listed 2000 participating employers, it is estimated
that a total of 2,251 small participating plans and 563 large
participating plans would provide benefits through pooled employer
plans.\41\ The DOL assumes this would result in a direct decrease of
2,251 defined contribution Form 5500-SF filers and a decrease of 563
Form defined contribution 5500 filers. As Table 2 shows this would
result in a reporting cost reduction of $1.5 million (not including the
audit cost reduction in Table 1) and a total reduction of filers from
822,100 to 819,400 filers. Such a reduction in filers would be
partially offset by an increase in pooled employer plan filings. We are
not, however, able to explicitly measure the net impact on filings
because of the uncertainty
[[Page 51297]]
regarding the number of pooled employer plans and the resulting
increase in pooled employer plan filings. The DOL requests comments on
these estimates.
---------------------------------------------------------------------------
\41\ For the calculation of the total number of participating
employers in pooled employer plans, it is first assumed that 80
percent of all the employers who would participate in a pooled
employer plan are currently providing benefits through small plans,
and that the remaining 20 percent through large plans. This
distribution would apply to the registrant that has already
exceptionally listed 2000 employers (which would then be divided in
1600 small participating plans and 400 large participating plans)
and to the other 74 pooled plan providers assumed to be created. It
is also assumed that each one of these other 74 pooled plan
providers would be servicing in total 11 employers. Therefore, the
total number of small participating plans in a pooled employer plan
is calculated as: 1,600 + (74 * 11 * 0.8) = 2,251 (rounded).
Similarly, the total number of large participating plans is
calculated as 400 + (74 * 11 * 0.2) = 563 (rounded).
Table 2--Estimated Burden Change by Type of Filer
Introduction of Pooled Employer Plans and Schedule MEP Filing
----------------------------------------------------------------------------------------------------------------
Aggregate Aggregate
Number of Number of reporting cost reporting cost Aggregate cost
Type of plan filers under filers under under current under proposed change
current rules proposed rules rules rules (millions)
(thousands) (thousands) (millions) (millions)
----------------------------------------------------------------------------------------------------------------
Large Plans..................... 146.8 146.3 $268.8 $267.9 -$0.9
Small Plans..................... 666.1 663.8 234.7 234.0 -0.7
DFEs............................ 9.3 9.3 11.4 11.4 0.0
-------------------------------------------------------------------------------
Overall Total............... 822.1 819.4 514.8 513.3 -1.5
----------------------------------------------------------------------------------------------------------------
Note: Some displayed numbers do not sum up to the totals due to rounding.
Large plans--100 participants or more.
Small plans--generally fewer than 100 participants.
DCG filings. As discussed above, a DCG filing for a group of plans
has the potential to reduce reporting burden as only one Form 5500 is
filed and signed by a common plan administrator so signatures from
separate administrators of the participating plans are not needed.
Offsetting these cost savings would be the burden from the consolidated
Form 5500 filed by the DCG, including the Schedule DCG to report
individual plan information for each participating plans. There are
499,234 small defined contribution plans that file the Form 5500-SF and
report the plan characteristic code 3D; the DOL assumes this type of
plan may find it advantageous to adopt this new structure of providing
benefits and therefore a fraction of them will join a DCG. The DOL
seeks comments on these assumptions.\42\
---------------------------------------------------------------------------
\42\ The DOL acknowledges that there could be other employers
whose plans are outside the category of small defined contribution
type, which currently file the Form 5500-SF and report plan
characteristic 3D, that might also find an advantage in joining a
DCG and therefore start providing benefits this way.
---------------------------------------------------------------------------
The change in burden from allowing a DCG to file on behalf of plans
is estimated in the following manner. Apart from the 499,234 small
defined contribution mentioned above, there are 1,813 pre-approved
plans.\43\ While the DOL does not know if all 1,813 pre-approved plans
actually would file on behalf of these 499,234 plans, if they did there
would be an average of 275 plans per pre-approved filer. These pre-
approved filers are the likeliest entities to file as a DCG. Although
DOL lacks sufficient information to confidently estimate how many DCGs
will form, the 50 entities that have filed the Form PR to register as a
pooled plan provider, so far, may be suggestive of the number of
entities currently seeking to take advantage of new structures to
reduce plan administrative costs. Potential DCGs may be better
positioned than pooled plan providers to commence operations as they
already have client plans that could benefit from the savings and do
not have to switch plans. Therefore, the DOL assumes that twice the
number of DCGs (100) would form in the first year as the number of
pooled plan providers (50). With the availability of DCGs as an option,
some service providers may discontinue their provision of individual
Form 5500 filing services, and only offer to file as DCGs. Some plans
that contract with such service providers may choose to be moved into
DCG filings, while others may seek out new service providers because
they don't wish to comply with the additional filing obligations placed
on DCG filers. For purposes of this analysis, we assume that
approximately half of the plans currently associated with a pre-
approved plan provider would be offered the opportunity and would agree
to comply with the DCG requirements to stay with the same provider. The
DOL then uses these results to assume 100 DCGs with a total of 15,350
small plans whose annual return/report filing obligation would be
satisfied by the filing of a DCG Form 5500.
---------------------------------------------------------------------------
\43\ https://www.irs.gov/retirement-plans/pre-approved-retirement-plans.
---------------------------------------------------------------------------
As described above, the consolidated return/report that would need
to be filed by the DCG to satisfy the annual reporting requirements of
participating plans would have to include a Schedule DCG for each
participating plan. The cost calculation must therefore take into
account cost of this schedule per plan participating in a DCG. The DOL
believes that once individual plans join a DCG, the average cost of
filing a Schedule DCG, which would be done for each one of the
estimated 15,350 participating plans, would be lower than the cost of
filing a Form 5500-SF separately, which cost was incurred by a small
plan before joining a DCG. Although the DOL does not know how much
lower this new cost would be, it estimates that completing a schedule
DCG as part of the DCG's Form 5500 annual return/report would take
about 40 percent less time than completing a Form 5500-SF for each
individual plan.
As Table 3 shows, assuming the number of DCGs and plans per DCG as
described above, along with the estimated cost of filing schedule DCG,
the DOL expects an overall cost reduction of $1.6 million. This cost
reduction assumes, as baseline, the current definition of large and
small plans, and would be the result of a decrease in the number of
Form 5500-SF filers, from 666,100 to 650,700. Such a reduction in
filers would be partially offset by an increase in DFE filings, which
reflects the introduction of DCGs as filing entities.
[[Page 51298]]
Table 3--Estimated Burden Change by Type of Filer
Introduction of DCGs and Schedule DCG Filing
----------------------------------------------------------------------------------------------------------------
Aggregate Aggregate
Number of Number of reporting cost reporting cost Aggregate cost
Type of plan filers under filers under under current under proposed change
current rules proposed rules rules rules (millions)
(thousands) (thousands) (millions) (millions)
----------------------------------------------------------------------------------------------------------------
Large Plans..................... 146.8 146.8 $268.8 $268.8 $0.0
Small Plans..................... 666.1 650.7 234.7 230.1 -4.6
DFEs............................ 9.3 9.4 11.4 14.3 2.9
-------------------------------------------------------------------------------
Overall Total............... 822.1 806.9 514.8 513.1 -1.6
----------------------------------------------------------------------------------------------------------------
Note: Some displayed numbers do not sum up to the totals due to rounding.
Large plans--100 participants or more.
[ssquf] Small plans--generally fewer than 100 participants.
As noted above, there is substantial uncertainty regarding these
estimates. The DOL specifically seeks comments on estimates of the
number of DCGs, the number of plans joining those DCGs, and the cost of
filing a schedule DCG compared to filing a Form 5500-SF, and the
overall cost burden savings due to plans joining a DCG.
Revised financial reporting on the Schedule H: Revising the
Schedule H Line 4i Schedules of Assets to make it data-capturable to
increase the accessibility to this information, including information
regarding hard-to-value assets, would increase costs. Without altering
the current definition of large and small plans, the DOL estimates that
the effect of this change would be to increase the total burden by
370,253 hours, which reflects the increase in burden that large plans
and DFEs, both as typical filers of Schedule H, would face. As Table 4
shows, in total this change would translate into an increase of filing
costs of $41 million (which represents an estimated cost of
approximately $260 per large plan/DFE potentially required to file the
Schedules of Assets). The Department seeks comments on the increase in
burden for entities filing the Schedule H, and if that burden will
decrease over time.
Table 4--Estimated Burden Change by Type of Filer
Revised Financial Reporting on the Schedule H
----------------------------------------------------------------------------------------------------------------
Aggregate Aggregate
Number of Number of reporting cost reporting cost Aggregate cost
Type of plan filers under filers under under current under proposed change
current rules proposed rules rules rules (millions)
(thousands) (thousands) (millions) (millions)
----------------------------------------------------------------------------------------------------------------
Large Plans..................... 146.8 146.8 $268.8 $305.4 $36.7
Small Plans..................... 666.1 666.1 234.7 234.7 0.0
DFEs............................ 9.3 9.3 11.4 15.6 4.3
-------------------------------------------------------------------------------
Overall Total............... 822.1 822.1 514.8 555.7 41.0
----------------------------------------------------------------------------------------------------------------
Note: Some displayed numbers do not sum up to the totals due to rounding.
Large plans--100 participants or more.
Small plans--generally fewer than 100 participants.
Changes to Methodology for Determining Small Plan Status for
Purposes of Annual Report Filing Requirements: The proposal would adopt
the change described in the NPFR to the current method of counting
participants for purposes of determining when a defined contribution
plan may file as a small plan and whether the plan may be exempt from
the IQPA audit requirement. Specifically, the proposal would allow
plans to count just the number of participants/beneficiaries with
account balances as of the beginning of the plan year, as compared to
the current rule that counts all the employees eligible to participant
in the plan by adding to the Form 5500 and Form 5500-SF a new question,
for defined contribution pension plans only, asking for the number of
participants with account balances at the beginning of the plan year.
This change would reduce costs for plans. The additional question
imposes little burden as the end-of year number is already tracked and
reported, but to plans who now qualify as small instead of large,
savings could be significant. EBSA estimates that the typical reporting
burden of all required schedules for a small pension plan is $348. In
contrast, the typical reporting burden of all required schedules for a
large pension plan is currently estimated by EBSA to be $1,903. While
there would be a cost reduction, these plans and their participants
would no longer have the protections provided by the audit, which could
result in an increased risk of errors and fraud, but there are
conditions for small plans to be eligible for the audit waiver that are
designed to address those potential risks. In the case of small pension
plans, to be eligible for the audit waiver small pension plans must
meet conditions related to investment assets, financial institutions
holding plan assets, disclosures to participants and beneficiaries, and
enhanced fidelity bonding for persons who handle certain assets. In the
case of welfare plans, both large and small plans, the plan must be
fully insured or unfunded to be eligible for the audit waiver.
Consistent with the Department's goal of encouraging pension plan
establishment and maintenance, particularly in the small business
community, the Department
[[Page 51299]]
concluded that engaging an accountant should not be the only means by
which the security of small plan assets can be adequately protected.
Rather, in developing the proposed regulation, consistent with the
existing regulatory conditions for the small plan audit waiver, the
Department attempted to balance the interest in providing secure
retirement savings for participants and beneficiaries with the interest
in minimizing costs and burdens on small pension plans and the sponsors
of those plans.
The DOL estimates that there could be a reduction of 20,005 large
plans filing under the proposed regulations, 19,442 defined
contribution plans due to the changing definition of who can file as a
small plan, and 563 large participating plans that could provide
benefits through pooled employer plans. An estimated 11,362 of these
plans currently provide the IQPA report and audited financial
statements and would therefore save in audit costs.\44\ The Department
estimates that there could be an audit cost reduction of $7,500 for
each one of these 11,362 plans. Plans may still conduct an audit, even
if there is no requirement. It is estimated that 25 percent of plans
could still conduct an audit.\45\ Data on the cost of an audit for
these plans is not known and will vary based on plan size and
complexity. An estimate of $7,500 is used to estimate the cost
savings.\46\ The Department seeks comment on the size of the costs
savings. Cost savings of $63.91 million annually is estimated for the
8,522 plans (11,362 * 0.75) that will no longer be required to conduct
an audit. These cost-savings are reported in Table 1 above.
---------------------------------------------------------------------------
\44\ To estimate the number of large plans currently providing
the IQPA report and audited financial statements the DOL identified
those large plans that would be most likely to be re-defined as
small plans and to have filed the Schedule H in 2018, as estimated
on the 2018 Form 5500 Pension Research Files. Note that the 80 to
120 participant transition provision at 29 CFR 2520.103-1(d) allows
a plan that covers fewer than 100 participants to continue taking
advantage of the simplified option or exemption, as applicable,
until they reach 121 participants, therefore not all plans with 100
or more participants will file a plan in a given year.
\45\ See https://Mathematica.org/publications/estimates-of-the-burden-for-filing-form-5500-the-change-in-burden-from-the-1997-to-the-1999-forms.
\46\ A report by Mathematica suggests audit costs of between
$3,000 and $30,000. Adjusted for inflation this would be about
$5,000 to $50,000 in 2021 dollars. https://mathematica.org/publications/estimates-of-the-burden-for-filing-form-5500-the-change-in-burden-from-the-1997-to-the-1999-forms. See also
www.paychex.com/retirement-services/pooled-employer-plans (accessed
July 21, 2021) which suggest $10,000 to $20,000. Additionally
conversations with stake holders suggest a range similar to the
$10,000 to $20,000. As the affected plans are expected to be small,
the low estimates are averaged ($5,000 and $10,000) to arrive at
$7,500.
---------------------------------------------------------------------------
As discussed above there are an estimated 19,442 defined
contribution plans that would now be able to file as a small plan.
Other reporting cost savings for these plans are based on their filing
the Form 5500-SF instead of the Form 5500 and the correspondent
schedules. As shown in Table 5, the DOL estimates that this
redefinition of small and large alone would translate into a decrease
of filing costs of $29.4 million, with a reduction from 146,800 to
127,400 in large plan filers. The DOL requests comments on this
estimate.
Table --Estimated Burden Change by Type of Filer
Changes to Filing Exemptions and Requirements for Small Plans
----------------------------------------------------------------------------------------------------------------
Aggregate Aggregate
Number of Number of reporting cost reporting cost Aggregate cost
Type of plan filers under filers under under current under proposed change
current rules proposed rules rules rules (millions)
(thousands) (thousands) (millions) (millions)
----------------------------------------------------------------------------------------------------------------
Large Plans..................... 146.8 127.4 $268.8 $233.6 -$35.2
Small Plans..................... 666.1 685.5 234.7 240.4 5.8
DFEs............................ 9.3 9.3 11.4 11.4 0.0
-------------------------------------------------------------------------------
Overall Total............... 822.1 822.1 514.8 485.4 -29.4
----------------------------------------------------------------------------------------------------------------
Note: Some displayed numbers do not sum up to the totals due to rounding.
Large plans--100 participants or more.
Small plans--generally fewer than 100 participants.
Changes for MEWAs that file the Form M-1. As set forth in the NPFR,
the proposal would update the Form M-1, transferring the multiple
employer participating employer information questions from the Form
5500 to the Form M-1 for MEWAs (plan and non-plan) that offer or
provide coverage for medical benefits and continued reporting of
participating employer information on the Form 5500 Annual as an
attachment for plan MEWAs that provide other benefits. The current Form
5500 requirement for MEPs to report participating employer information
applies to plan MEWAs offering all types of benefits--not just those
that provide group health plans. The DOL estimates that the change in
burden would be de minimis for these plans.
However, non-plan MEWAs providing health benefits would now have
the added burden of providing the participating employer information.
The DOL assumes that non-plan MEWAs already have access to this
information, and reporting it would not add a substantive burden to
these entities' reporting costs.
Internal Revenue Code and ERISA Title IV Proposed Changes. As
described the NPFR, the proposal includes changes related to Internal
Revenue Code requirements and reporting requirements for defined
benefit pensions subject to filing Schedules MB, SB, and R. The
Agencies' believe the additional questions reflect information plans
should know and expect that reporting this information would result in
a de minimis marginal burden.
Assumptions, Methodology, and Uncertainty: The cost and burden
associated with the annual reporting requirement for any given plan
depend upon the specific information that must be provided, given the
plan's characteristics, practices, operations, and other factors. For
example, a small, single-employer defined contribution pension plan
eligible to file the Form 5500-SF should incur far lower costs than a
large, multiemployer defined benefit pension plan that holds multiple
insurance contracts, engages in reportable transactions, and has many
service providers that each received over $5,000 in compensation. The
DOL separately considered the cost to different types of plans in
arriving at its aggregate cost estimates. The DOL's basis for these
estimates follows.
[[Page 51300]]
Assumptions Underlying this Analysis: The DOL's analysis assumes
that all benefits and costs would be realized in the first year of the
reporting cycle to which the changes apply and within each year
thereafter. This assumption is premised on the requirement that each
plan will be required to file the Form 5500 Annual Return/Report. The
DOL has used a ``status quo'' baseline for this analysis, assuming that
the world in the future, absent the proposed regulations, will resemble
the present. The DOL does not anticipate that there will be material
one-time transition cost for learning or updating systems during the
first year in which the reporting changes apply. The proposal would
largely apply requirements currently in effect for large MEPs to pooled
employer plans and DCGs. The financial services providers and
recordkeepers that be sponsoring such plans and DCGs generally are
already providing Form 5500 filings services for the employee benefit
plans they service so we do not anticipate material start-up costs for
them to file Form 5500s on behalf of pooled employer plans or DCGs. We
also do not anticipate that individual plans that participate in a DCG
reporting arrangement would expend more time to supply information to
DCG reporting arrangements during the first year than what they
currently incur to supply annual reporting data to service provides
that prepare their annual reports (and may in fact incur less time even
during the first year). Similarly, the creation of the Schedule MEP
mostly reorganizes the way annual reporting data is provided by
affected plans, rather than adding significant additional information
collection. Similarly, the changes to the content of the Schedules of
Assets are calling for reporting of a very limited number of data
elements that plans should already have as part of the ordinary
business records. The DOL also expects that the formatting changes
being proposed to make the Schedules of Assets more usable will match
formatting that filers already use to file various other schedules,
and, accordingly, they would not involve material costs for learning or
system adjustments. Moreover, the DOL is proposing to permit (but not
require) certain attachments to Schedule MB and SB to be provided in a
tabular format (spreadsheet) rather than PDF or TXT formats. The DOL
solicits comments on whether filers would want a similar option for the
Schedules of Assets and whether they believe such an option would
reduce reporting burdens, including any potential transition cost.
Further, with respect to the limited number of additional questions for
defined benefit pension plans and Code-related questions for pension
plans relate to existing compliance obligations, those questions should
not entail material start-up or learning costs. We also do not
anticipate material transition costs related to the proposed changes
related to reporting participating employer information which largely
apply existing requirements in the context of a new schedule for some
filers and as an attachment to current filings for others. Nonetheless,
the DOL specifically solicits comments on whether plans or groups of
plans anticipate a material increase in such transition costs during
the first year.
Methodology: Mathematica Policy Research, Inc. (MPR) developed the
underlying cost data, which has been used by the Agencies in estimating
burden related to the Form 5500 Annual Return/Report since 1999. See 65
FR 21068, 21077-78 (Apr. 19, 2000); Borden, William S., Estimates of
the Burden for Filing Form 5500: The Change in Burden from the 1997 to
the 1999 Forms, Mathematica Policy Research, submitted to DOL May 25,
1999.\47\ The cost information was derived from surveys of filers and
their service providers, as modified due to comments, which were used
to measure the unit cost burden of providing various types of
information. The DOL has adjusted these unit costs since 1999 to
account for changes to the forms and schedules and increases in the
cost of labor and service providers since MPR developed the initial
data.
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\47\ The MPR report can be accessed at https://mathematica.org/publications/estimates-of-the-burden-for-filing-form-5500-the-change-in-burden-from-the-1997-to-the-1999-forms. See also Technical
Appendix: Documentation of Form 5500 Revision Burden Model at
www.dol.gov/agencies/ebsa/laws-and-regulations/rules-and-regulations/technical-appendices.
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For this forms revision, the DOL used the adjusted MPR unit cost
data for pension and non-health welfare plans. The DOL developed the
unit cost data for group health plans using the best available data. To
develop unit costs for DFEs, the DOL created weighted averages of the
unit costs for plans.
To obtain filer counts for pension plans, welfare plans, and DFEs,
the DOL used historical counts of Form 5500 Annual Return/Report filers
tabulated by type and reported characteristics.
The DOL modeled its approach to calculating burden on the approach
used during the 2009 forms revision and the 2016 modernization
proposal.\48\ Aggregate burden estimates were produced in both
revisions by multiplying the unit cost measures by the filer count
estimates. The methodology is described in broad terms below.
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\48\ See 72 FR 64731 (Nov. 16, 2007) and 81 FR 47496 (July 16,
2016).
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To estimate aggregate burdens, types of plans with similar
reporting requirements were grouped together in various groups and
subgroups. Calculations of aggregate cost were prepared for each of the
various subgroups both under requirements in effect prior to this
action and under the forms as revised. The universe of filers was
divided into four basic types: Defined benefit pension plans, defined
contribution pension plans, welfare plans, and DFEs. For the plans,
each of these major plan types was further subdivided into
multiemployer and single-employer plans.\49\ Since the filing
requirements differ substantially for small and large plans, the plan
types were also divided by plan size. For large plans (100 or more
participants), the defined benefit plans were further divided between
very large (1,000 or more participants) and other large plans (at least
100 participants, but fewer than 1,000 participants). Small plans (less
than 100 participants) were divided similarly, except that they were
divided into Form 5500-SF eligible and Form 5500-SF ineligible plans,
as applicable. Welfare plans were divided into group health plans and
plans that do not provide any group health benefits, while plans that
provide group health benefits and have fewer than 100 participants were
divided into fully insured group health plans and unfunded, combination
unfunded/fully insured plans, or funded with a trust group health
plans. DFEs were divided into Master Trusts/MTIAs, CCTs, PSAs, 103-12
IEs, GIAs, and DCGs. For each of these sets of respondents, burden
hours per respondent were estimated for the Form 5500 Annual Return/
Report itself and up to seven schedules or the Form 5500-SF (and the
Schedule SB, for Form 5500-SF eligible defined benefit pension plans).
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\49\ For purposes of this analysis, multiple employer plans were
treated as single employer plans.
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We also separately estimated the costs for each of the forms and
schedules that are part of the Form 5500 Annual Return/Report. When
items on a schedule are required by more than one Agency, the estimated
burden associated with that schedule is allocated among the Agencies.
This allocation is based on how many items are required by each agency.
The burden associated with reading the instructions
[[Page 51301]]
for each item also is tallied and allocated accordingly.
The reporting burden for each type of plan is estimated in light of
the circumstances that are known to apply or that are generally
expected to apply to such plans, including plan size, funding method,
usual investment structures, and the specific items and schedules such
plans ordinarily complete. For example, a large single-employer defined
benefit pension plan that is intended to be tax-qualified that has
insurance products among its investments and whose service providers
received compensation above the Schedule C reporting thresholds would
be required to submit an annual report completing almost all the line
items of the Form 5500, plus Schedule A (Insurance Information),
Schedule SB (Single Employer Defined Benefit Plan Actuarial
Information), Schedule C (Service Provider Information), possibly the
Schedule G (Financial Transaction Schedules), Schedule H (Financial
Information), and Schedule R (Retirement Plan Information), and would
be required to submit an IQPA report. In this way, the Agencies intend
meaningfully to estimate the relative burdens placed on different
categories of filers.
Burden estimates were adjusted for the proposed revisions to each
schedule, including items added or deleted in each schedule and items
moved from one schedule to another.
The DOL has not attributed a recordkeeping burden to the 5500 Forms
in this analysis or in the Paperwork Reduction Act analysis because it
believes that plan administrators' practice of keeping financial
records necessary to complete the 5500 Forms arises from usual and
customary management practices that would be used by any financial
entity and does not result from ERISA or Code annual reporting and
filing requirements.
The aggregate baseline burden is the sum of the burden per form and
schedule as filed prior to this action multiplied by the estimated
aggregate number of forms and schedules filed.\50\ The DOL estimated
the burden impact of changes in the numbers of filings and of changes
made to the form and the various schedules. The burden estimates use
data from the Form 5500 Annual Return/Report for plan year 2018, which
is the most recent year for which complete data is available.
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\50\ Some filers are eligible to file the Form 5500-SF, but
choose to file a Form 5500 and attach Schedule I and/or other
schedules because they find it less burdensome to do so in their
particular situation. Counts of these filings are adjusted to
reflect what they would have filed if they had chosen to file the
Form 5500-SF.
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1.4. Uncertainty
The SECURE Act created pooled employer plans and directed the
Departments to make available consolidated reporting for defined
contribution pension plans that meet certain requirements. Due to these
proposed rules designed to implement the SECURE Act, as well as the
DOL's final rules with respect to association retirement plans and PEO-
sponsored plans, the DOL assumes that these types of entities will file
a Form 5500 and report the number of participating employers, numbers
of covered participants, and amount of assets in the future. However,
until they file, the Departments face significant uncertainty about the
number of each type of entity and whether they are merely providing
coverage in a different manner than was already provided by employers
to their employees through single employer plans or already existing
MEPs (including association retirement plans and PEOs) or whether with
the availability of additional commercial arrangements and plans, more
employers will establish plans for their employees.
While pooled plan providers have filed a Form PR and list plans
they are forming, they do not report the number of participating
employers. The DOL has identified 611,568 defined contribution plans
that reported code 3D, of which 499,234 are considered small defined
contribution plans filing the Form 5500-SF as possible plans that could
join a DCG or a pooled employer plan. However, the decision depends not
only on cost savings, and administrative ease, but also on employers'
preferences and perceptions about the advantages and disadvantages of
joining either group or neither.
The Departments request information that will help improve its
current estimates of the numbers of affected entities, employers and
the burdens they will experience due to these proposed rules.
1.5. Alternatives
As described above, the DOL proposed changes to Title I annual
reporting requirements primarily are designed to implement statutory
changes enacted as part of the SECURE Act. The DOL considered several
alternative approaches to address these statutory changes, including:
Not requiring an audit for large plans that are part of a
DCG reporting arrangement, and instead requiring just an audit of the
DCG's trust. Including more or fewer questions on the Schedule DCG and
the Schedule MEP.
Including more or fewer questions for defined benefit
plans on issues under Title IV of ERISA or questions for retirement
plans on Internal Revenue Code compliance issues.
Not adding new content elements to the Schedules of Assets
and not requiring the Schedules of Assets to be filed in a data-
capturable format.
Not changing the methodology for participant count for
determining whether a defined contribution retirement plan is subject
to the annual reporting requirements applicable to large plans versus
small plans.
Allowing a DCG with under 100 total participants to file
as a small plan rather than requiring all DCGs to generally follow the
annual reporting requirements applicable to large plans--i.e., Form
5500, Schedule A (if applicable), Schedule I, Schedule R (if
applicable)--no IQPA audit, and no detailed supplemental schedules.
Not requiring non-plan MEWAs and/or non-group health MEWA
plans report the participating plan information on the Form M-1 and
Form 5500, respectively.
While slightly less burdensome than the proposed rule's requirements,
requiring fewer data elements or less transparent and usable data
filing requirements would provide substantially less information to the
DOL, which would impede its ability to fulfill its critical oversight
role of protecting participants and plan assets. Employers in DCGs and
MEPs also would receive less information to survey the market when
choosing a DCG or pooled plan provider or deciding whether to continue
to rely on an existing provider. Less information and less usable data
filing requirements would also not have as effectively served the
interests of other users of Form 5500 data, including the IRS, PBGC,
other Federal agencies, Congress, and the private sector who use the
Form 5500 filings as an important source of information and data in
assessing employee benefit, tax, and economic trends and policies.\51\
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\51\ Section 1 of ERISA states the ``Congressional findings and
declaration of policy.'' Of relevance to our consideration of these
alternatives, section (b) states, in relevant part: ``It is hereby
declared to be the policy of this chapter to protect interstate
commerce and the interests of participants in employee benefit plans
and their beneficiaries, by requiring the disclosure and reporting
to participants and beneficiaries of financial and other information
with respect thereto . . . .'' 29 U.S.C. 1001(b).
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2. Paperwork Reduction Act Statement
As part of its continuing effort to reduce paperwork and respondent
[[Page 51302]]
burden, the DOL conducts a preclearance consultation program to allow
the general public and Federal agencies to comment on proposed and
continuing collections of information in accordance with the Paperwork
Reduction Act of 1995 (PRA).\52\ This helps to ensure that requested
data will be provided in the desired format, reporting burden (time and
financial resources) will be minimized, collection instruments will be
clearly understood, and the impact of collection requirements on
respondents is properly assessed. Currently, the DOL is soliciting
comments concerning the proposed revision of the Form 5500 Annual
Return/Report, which is an information collection request (ICR) subject
to the PRA. The accompanying Notice of Proposed Forms Revisions
includes a separate PRA discussion that includes tables breaking out
the average time for filing the Form 5500, Form 5500-SF, and each
schedule, broken down by pension plans (sub-grouped by large plans
filing the Form 5500, small plan filing the Form 5500, small plan
filing the Form 5500-SF), welfare plans that include health benefits
(sub-grouped by large plans and small, unfunded, combination unfunded/
fully insured, or funded with a trust 5500-SF), welfare plans that do
not include health benefits (sub-grouped by large plans filing the Form
5500, small plan filing the Form 5500, small plan filing the Form 5500-
SF), and DFEs (sub-grouped by master trusts, CCTs, PSAs, 103-1IEs,
GIAs, and DCGs). The discussion also includes a table with the
estimated PRA burdens attributable the Form 5500 Annual Return/Report
broken down by the portions allocated to the DOL and the IRS. The DOL
is also submitting revisions to the Form M-1 and Summary Annual Report
ICRs. A copy of the ICRs may be obtained by contacting the person
listed in the PRA Addressee section below. The DOL has submitted a copy
of the proposed revisions to the Office of Management and Budget (OMB)
in accordance with 44 U.S.C. 3507(d) for its review of the DOL's
information collection. The DOL and OMB are particularly interested in
comments that:
---------------------------------------------------------------------------
\52\ 44 U.S.C. 3506(c)(2)(A) (1995).
---------------------------------------------------------------------------
Evaluate whether the collection of information is
necessary for 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 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
electronically delivered responses).
Comments should be sent to the Office of Information and Regulatory
Affairs, Office of Management and Budget, Room 10235, New Executive
Office Building, Washington, DC 20503 and marked ``Attention: Desk
Officer for the Employee Benefits Security Administration.'' Comments
can also be submitted by Fax: 202-395-5806 (this is not a toll-free
number), or by email: [email protected]. OMB requests that
comments be received by October 15, 2021, which is 30 days from
publication of the proposed rule to ensure their consideration.
PRA Addressee: Address requests for copies of the ICRs to James
Butikofer, Office of Regulations and Interpretations, U.S. Department
of Labor, Employee Benefits Security Administration, 200 Constitution
Avenue NW, Room N-5655, Washington, DC 20210. Telephone: (202) 693-
8410; Fax: (202) 219-4745; Email: [email protected]. These are not toll-
free numbers. ICRs submitted to OMB also are available at https://www.RegInfo.gov.
3. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) \53\ imposes certain
requirements with respect to Federal rules that are subject to the
notice and comment requirements of section 553(b) of the Administrative
Procedure Act \54\ and are likely to have a significant economic impact
on a substantial number of small entities. Unless an agency determines
that a proposal is not likely to have a significant economic impact on
a substantial number of small entities, section 603 of the RFA requires
the agency to present an initial regulatory flexibility analysis (IRFA)
of the proposed rule. The DOL has determined that this proposed rule is
likely to have a significant impact on a substantial number of small
entities. Therefore, the DOL provides its IRFA of the proposed rule,
below.
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\53\ 5 U.S.C. 601 et seq. (1980).
\54\ 5 U.S.C. 551 et seq. (1946).
---------------------------------------------------------------------------
For purposes of this IRFA, an entity is considered a small entity
if it is an employee benefit plan with fewer than 100 participants.\55\
The definition of small entity considered appropriate for this purpose
differs, however, from a definition of small business that is based on
size standards promulgated by the Small Business Administration (SBA)
(13 CFR 121.201) pursuant to the Small Business Act (15 U.S.C. 631 et
seq.). The basis of EBSA's definition of a small entity for this IRFA
is found in section 104(a)(2) of ERISA, which permits the Secretary to
prescribe simplified annual reports for pension plans that cover fewer
than 100 participants. The DOL has consulted with the SBA Office of
Advocacy concerning use of this participant count standard for RFA
purposes.\56\ The DOL seeks comment on the appropriateness of
continuing to use this size standard.
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\55\ While some large employers may have small plans, in
general, small employers maintain most small plans. The Form 5500
Annual Return/Report impacts any employer in any private sector
industry who chooses to sponsor a plan. The DOL is unable to locate
any data linking employer revenue to plans to determine the
relationship between small plans and small employers in industries
whose SBA size standard is revenue-based. For a separate project,
the DOL purchased data on ESOPs that file the Form 5500 and on
defined contribution pension plans that file the Form 5500-SF from
Experian Information Solutions, Inc. The Experian dataset provides
the number of employees for the plan sponsor. By merging these data
with internal DOL data sources, the DOL determined the relationship
between small plans and small employers in industries whose SBA size
standard is based on a threshold number of employees that varies
from 100 to 1,500 employees. Based on these data, the DOL estimates
that over 97 percent of small retirement plans and over 80 percent
of small health plans are sponsored by employers with fewer than 100
employees. The DOL estimates that over 99 percent of small
retirement plans and over 97 percent of small health plans are
sponsored by employers with fewer than 1,500 employees. Thus, the
DOL believes that assessing the impact of these proposed rules on
small plans is an appropriate substitute for evaluating the effect
on small entities.
\56\ Memorandum received from the U.S. Small Business
Administration, Office of Advocacy on July 10, 2020.
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The following subsections address specific components of an IRFA,
as required by the RFA.
3.1. Need for and Objectives of the Rule
This proposal would amend the DOL's reporting regulations relating
to the annual reporting and disclosure requirements to implement the
forms changes that are set forth in the NPFR published concurrently
with this notice of proposed rulemaking. DOL strives to tailor
reporting requirements to minimize reporting costs, while ensuring that
the information necessary to secure ERISA rights is adequately
available. The optimal design for reporting requirements changes over
time. In addition, the technologies available to manage and transmit
information continually advance.
[[Page 51303]]
Therefore, it is incumbent on the Agencies to revise their reporting
requirements from time to time to keep pace with such changes. The
proposed forms revisions, and associated DOL regulatory amendments in
the proposal, are intended to implement the reporting requirements
required by the SECURE Act, taking into account certain recent changes
in markets, other law, and technology, many of which are referred to
above in this document.
3.2. Affected Small Entities
The proposal would change the current method of counting covered
participants for purposes of determining when a defined contribution
plan may file as a small plan and whether the plan may be exempt from
the audit requirement from the current requirement. Specifically, the
proposal would allow plans to count just the number of participants/
beneficiaries with account balances as of the beginning of the plan
year, as compared to the current rule that counts all the employees
eligible to participant in the plan. This change would allow an
estimated 19,442 large defined contribution plans to be re-defined and
file as small defined contribution plans. The estimated distribution of
these plans by amount of assets is shown in Table 6.
Table 6--Distribution of Large DC Pension Plans To Be Redefined as Small Filers, by Type of Plan and Amount of
Assets, 2018
----------------------------------------------------------------------------------------------------------------
Single- Multiemployer Multiple-
Amount of assets Total employer plans plans employer plans
----------------------------------------------------------------------------------------------------------------
Total Plans.................................. 19,442 18,974 134 334
None or not reported......................... 50 50 ................. ..............
$1-24K....................................... 221 220 ................. 1
25-49K....................................... 183 182 ................. 1
50-99K....................................... 312 306 2 4
100-249K..................................... 816 800 3 13
250-499k..................................... 1,276 1,260 2 14
500-999K..................................... 2,561 2,522 4 34
1-2.49M...................................... 6,158 6,049 3 106
2.5-4.9M..................................... 4,790 4,683 7 100
5-9.9M....................................... 2,316 2,259 10 48
10-24.9M..................................... 592 556 27 10
25-49.9M..................................... 80 53 25 2
50-74.9M..................................... 26 12 14 ..............
75-99.9M..................................... 12 6 6 ..............
100-149.9M................................... 9 6 3 ..............
150-199.9M................................... 13 4 9 ..............
200-249.9M................................... 8 3 5 ..............
250-499.9M................................... 12 1 11 ..............
500-999.9M................................... 4 3 1 ..............
1-2.49B...................................... 2 1 1 ..............
----------------------------------------------------------------------------------------------------------------
As described in the regulatory impact analysis, above, the DOL
estimates that 100 DCGs will form in the first year, filing for 15,350
small plans. These plans would no longer need to file a Form 5500 or
Form 5500-SF; their DCG filing a complete Form 5500 Annual Return/
Report in accordance with its instructions, including the requirement
to include the proposed Schedule DCG for each individual participating
plan, would satisfy the reporting requirements for those plans. There
also may be some cases in which sponsors of small plans decide to
instead participate in the pooled employer plan, which would also
result in a number of small plans either being terminated or possibly
merged into the pooled employer plan and no longer filing a Form 5500
or Form 5500-SF. As discussed above, the DOL is estimating that 2,251
small employers/plans will join a pooled employer plan.\57\
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\57\ For the calculation of the total number of employers in
pooled employer plans it is first assumed that 80 percent of all the
employers who would participate in a pooled employer plan are
currently providing benefits through small plans, and the remaining
20 percent through large plans. This distribution would apply to the
registrant that has already exceptionally listed 2000 employers
(which would then be divided in 1600 small participating plans and
400 large participating plans) and to the other 74 pooled plan
providers assumed to be created. As explained, it is also assumed
that each one of these other 74 pooled plan providers would be
servicing in total 11 employers. Therefore, the total number of
small participating plans in a pooled employer plan is calculated
as: 1,600 + (74 * 11 * 0.8) = 2,251 (rounded).
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Due to the change in the requirements to be considered a small plan
on the basis of account balance, in total, approximately 609,695
defined contribution pension plans covering fewer than 100 participants
with account balances would be eligible to comply with annual reporting
requirements applicable to small plans, where previously approximately
590,254 defined contribution plans were filing as small plans. In this
regard, in total there would be now 648,837 small plans where
previously were 629,397. Estimates of the number of small pension plans
are based on 2018 Form 5500 filing data.
Additionally, the proposed changes in annual reporting requirements
would affect MEWAs. In the 2018 calendar year, there were 143 plan
MEWAs and six non-plan MEWAs with fewer than 100 participants that
filed a Form M-1.\58\
---------------------------------------------------------------------------
\58\ These calculations are based on internal DOL calculations
based on 2018 Form M-1 filings. In 2018, of the 640 total plan
MEWAs, 143 reported having fewer than 100 participants, of which 69
had zero participants. Of the 47 non-plan MEWAs, six reported having
fewer than 100 participants all of which had zero participants.
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3.3. Impact of the Rule
While many small plans could experience a reduced burden as a
result of the proposed changes, it is the 20,005 large plans filing
under the proposed regulations, that we estimate would experience a
significant impact. Specifically, 19,442 defined contribution plans due
to the change in the definition of who can file as a small plan and be
eligible for an audit waiver,
[[Page 51304]]
and 563 large participating plans that could provide benefits through
pooled employer plans and be covered by the pooled employer plan single
audit rather than a separate audit if they sponsored their own single
employer plan. An estimated 11,362 of those affected large plans
currently provide the IQPA report and audited financial statements that
would save in audit costs under the proposal.\59\ There is variation in
filing requirements based on the characteristics of a plan and types of
assets held. However, these plans would no longer need to attach the
IQPA report (audit) and other schedules required of large plans with
its annual return/report. As described earlier in this document,\60\
the Department estimates that there could be an audit cost reduction of
$7,500 for each one of these 11,362 plans. Plans may still conduct an
audit, even if there is no requirement. It is estimated that 25 percent
of plans could still conduct an audit. Data on the cost of an audit for
these plans is not known and will vary based on plan size and
complexity. An estimate of $7,500 is used to estimate the cost savings
per year. These plans also would no longer be required to file the
Schedule H, but would need to file the Schedule I. The difference in
burden between filing Schedule H and Schedule I is estimated to be $770
per year.\61\
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\59\ To estimate the number of large plans currently providing
the IQPA report and audited financial statements the DOL identified
those large plans are most likely to be re-defined as small plans
and have filed Schedule H in 2018, as estimated on the 2018 Form
5500 Pension Research Files. Note that an 80 to 120 participant
transition provision allows a plan that covers fewer than 100
participants to continue taking advantage of the simplified option
or exemption, as applicable, until they reach 121 participants,
therefore not all plans with 100 or more participants will file a
plan in a given year.
\60\ See fns. 47-49 supra.
\61\ The methodology DOL uses results in estimates that it will
take a small pension plan approximately 12 hours to file a Schedule
H, compared to two hours and six minutes to file a Schedule I. See
``Methodology'' section starting, supra, at page 56 for a discussion
of the burden estimating methodology.
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Table 6 above shows that number of plans by the amount of assets in
the plans. This shows an estimate of 5,369 plans (those with less than
$1 million in assets) that would see a costs savings of about one
percent of plan assets.\62\
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\62\ Plan asset data reflects data reported on 2018 Form 5500
filings.
---------------------------------------------------------------------------
The establishment of DCGs, the use of Schedules DCG ($178 per
plan), Schedule MEP ($20 for most MEPs and $26 per pooled employer
plan), and the other changes could impact a substantial number of small
plans, as discussed above, but the impacts per plan are small in
magnitude and do not meet the qualifications for a significant impact
for this analysis.
3.4. Duplicate, Overlapping, or Relevant Federal Rules
The DOL is unaware of any relevant Federal rules for small plans
that duplicate, overlap, or conflict with these regulations.
3.5. Description of Steps Taken To Minimize the Impact on Small
Entities
These proposed regulations and related changes to the Form 5500
Annual Return/Report generally implement or otherwise relate to SECURE
Act changes to ERISA and the Code, and do not include significant
modifications to existing small plan simplified reporting options other
than expanding the number of plans that will be eligible for simplified
reporting options by reason of the proposed change in the method of
counting participants for determining small plans versus large plan
status. Small pension plans that are invested in ``eligible'' plan
assets and otherwise meet certain requirements are able to use a
simplified reporting option of filing Form 5500-SF, which was
established by regulation in part to comply with provisions of the
Pension Protection Act requiring a simplified form of reporting for
plans with fewer than 25 participants. In light of the fact that the
majority of small plans required to file an ERISA annual report cover
fewer than 25 participants, the simplified reporting option also
constitutes the Department's efforts to further reduce the information
collection burden for small business concerns with fewer than 25
employees, pursuant to the Small Business Paperwork Relief Act of 2002,
Public Law 107-198, see 44 U.S.C. 3506 (c)(4). The Department, in
developing the proposed regulatory changes for Form 5500 filings by
DCGs, carried forward an audit waiver for small plans participating in
a DCG consolidated Form 5500 filing. We also, in developing the
Schedule MEP filing requirements for pooled employer plans and other
MEPs, did not expand small plan reporting requirements. We generally
limited the information collection to consolidating information onto
the Schedule MEP information that is already reported elsewhere by MEPs
on the current Form 5500, as discussed elsewhere in this preamble and
in the NPFR. Overall, the DOL believes that the proposed changes to the
reporting requirements reduce the burden on small plans, while allowing
the DOL to collect sufficient information for it to fulfill its
statutory responsibilities.
4. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 requires each
Federal agency to prepare a written statement assessing the effects of
any Federal mandate in a proposed or final agency rule that may result
in an expenditure of $100 million or more (adjusted annually for
inflation with the base year 1995) in any one year by State, local, and
tribal governments, in the aggregate, or by the private sector.\63\ For
purposes of the Unfunded Mandates Reform Act, as well as Executive
Order 12875,\64\ this proposal does not include any Federal mandate
that the DOL expects would result in such expenditures by State, local,
or tribal governments, or the private sector.
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\63\ 2 U.S.C. 1501 et seq. (1995).
\64\ Enhancing the Intergovernmental Partnership, 58 FR 58093
(Oct. 28, 1993).
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5. Federalism Statement
Executive Order 13132 outlines fundamental principles of
federalism, and requires the adherence to specific criteria by Federal
agencies in the process of their formulation and implementation of
policies that have ``substantial direct effects'' on the States, the
relationship between the National Government and States, or on the
distribution of power and responsibilities among the various levels of
government.\65\ Federal agencies promulgating regulations that have
federalism implications must consult with State and local officials and
describe the extent of their consultation and the nature of the
concerns of State and local officials in the preamble to the rule.
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\65\ Federalism, supra note 6.
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In the DOL's view, these proposed regulations would not have
federalism implications because they would not have direct effects on
the States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among
various levels of government. These proposed rules do not have
federalism implications because they would have no substantial direct
effect on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. Section 514 of
ERISA provides, with certain exceptions specifically enumerated, that
the provisions of Titles I and IV of ERISA supersede any and all laws
of the States as they relate to any employee benefit plan covered under
ERISA. The requirements proposed to be
[[Page 51305]]
implemented in these rules do not alter the fundamental provisions of
the statute with respect to employee benefit plans, and as such would
have no implications for the States or the relationship or distribution
of power between the National Government and the States. The DOL
welcomes input from affected States regarding this assessment.
List of Subjects in 29 CFR Part 2520
Accounting, Employee benefit plans, Freedom of information,
Pensions, Public assistance programs, Reporting and recordkeeping
requirements.
For the reasons discussed in the preamble, 29 CFR part 2520 is
proposed to be amended as follows:
PART 2520--RULES AND REGULATIONS FOR REPORTING AND DISCLOSURE
0
1. The authority citation for part 2520 is revised to read as follows:
Authority: 29 U.S.C. 1002(44), 1021-1025, 1027, 1029-31, 1059,
1134, and 1135; and Secretary of Labor's Order 1-2011, 77 FR 1088.
Sec. 2520.101-2 also issued under 29 U.S.C. 1132, 1181-1183, 1181
note, 1185, 1185a-b, 1191, and 1191a-c. Sec. 2520.101-5 also issued
under 29 U.S.C. 1021 note; sec. 501, Pub. L. 109-280, 120 Stat. 780;
sec. 105(a), Pub. L. 110-458, 122 Stat. 5092. Secs. 2520.102-3,
2520.104b-1, and 2520.104b-3 also issued under 29 U.S.C. 1003, 1181-
1183, 1181 note, 1185, 1185a-b, 1191, and 1191a-c. Secs. 2520.104b-1
and 2520.107 also issued under 26 U.S.C. 401 note; sec. 1510, Pub.
L. 105-34, 111 Stat. 1068.
0
2. In Sec. 2520.103-1, revise paragraphs (a)(2), (b) introductory
text, (b)(1), (c)(1), (c)(2)(i), and (c)(2)(ii)(D) and (E) and add
paragraphs (c)(2)(ii)(F) and (G) to read as follows:
Sec. 2520.103-1 Contents of the annual report.
(a) * * *
(2) Under the authority of subsections 104(a)(2), 104(a)(3), and
110 of the Act, section 1103(b) of the Pension Protection Act of 2006,
and section 202 of the SECURE Act, a simplified report, limited
exemption, or alternative method of compliance is prescribed for
employee welfare and pension benefit plans, as applicable. A plan
filing a simplified report or electing the limited exemption or
alternative method of compliance shall file an annual report containing
the information prescribed in paragraph (b) or (c) of this section, as
applicable, and shall furnish a summary annual report as prescribed in
Sec. 2520.104b-10.
(b) Contents of the annual report for plans with 100 or more
participants electing the limited exemption or alternative method of
compliance. Except as provided in paragraphs (d) and (f) of this
section and in Sec. Sec. 2520.103-2, 2520.103-14, and 2520.104-44, the
annual report of an employee benefit plan covering 100 or more
participants at the beginning of the plan year which elects the limited
exemption or alternative method of compliance described in paragraph
(a)(2) of this section shall include:
(1) A Form 5500 ``Annual Return/Report of Employee Benefit Plan''
and any statements or schedules required to be attached to the form,
completed in accordance with the instructions for the form, including
Schedule A (Insurance Information), Schedule C (Service Provider
Information), Schedule D (DFE/Participating Plan Information), Schedule
G (Financial Transaction Schedules), Schedule H (Financial
Information), Schedule SB (Single-Employer Defined Benefit Plan
Actuarial Information), Schedule MB (Multiemployer Defined Benefit Plan
and Certain Money Purchase Plan Actuarial Information), Schedule MEP
(Multiple Employer Plan), Schedule R (Retirement Plan Information), and
other financial schedules described in Sec. 2520.103-10. See the
instructions for this form.
* * * * *
(c) * * *
(1) Except as provided in paragraphs (c)(2), (d), (e), and (f) of
this section, and in Sec. Sec. 2520.103-14, 2520.104-51, 2520.104-43,
2520.104-44, 2520.104a-6, and 2520.104a-9, the annual report of an
employee benefit plan that covers fewer than 100 participants at the
beginning of the plan year shall include a Form 5500 ``Annual Return/
Report of Employee Benefit Plan'' and any statements or schedules
required to be attached to the form, completed in accordance with the
instructions for the form, including Schedule A (Insurance
Information), Schedule D (DFE/Participating Plan Information), Schedule
I (Financial Information--Small Plan), Schedule SB (Single Employer
Defined Benefit Plan Actuarial Information), Schedule MB (Multiemployer
Defined Benefit Plan and Certain Money Purchase Plan Actuarial
Information), Schedule MEP (Multiple Employer Plan), and Schedule R
(Retirement Plan Information). See the instructions for this form.
(2)(i) The annual report of an employee pension benefit plan or
employee welfare benefit plan and that covers fewer than 100
participants at the beginning of the plan year and that meets the
conditions in paragraph (c)(2)(ii) of this section with respect to a
plan year may, as an alternative to the requirements of paragraph
(c)(1) of this section, meet its annual reporting requirements by
filing the Form 5500-SF ``Short Form Annual Return/Report of Small
Employee Benefit Plan'' and any statements or schedules required to be
attached to the form, Schedule SB (Single Employer Defined Benefit Plan
Actuarial Information) and Schedule MB (Multiemployer Defined Benefit
Plan and Certain Money Purchase Plan Actuarial Information), completed
in accordance with the instructions for the form. See the instructions
for this form.
(ii) * * *
(D) Is not a multiemployer plan;
(E) Is not a plan subject to the Form M-1 requirements under Sec.
2520.101-2;
(F) Is not a multiple employer pension plan, including a pooled
employer plan described in section 3(43) of the Act and a multiple
employer defined contribution pension plan described in Sec. 2510.3-55
of this chapter; and
(G) Is not a DCG reporting arrangement described in Sec. 2520.104-
51.
* * * * *
0
3. In Sec. 2520.103-5, revise paragraph (a) introductory text to read
as follows:
Sec. 2520.103-5 Transmittal and certification of information to plan
administrator for annual reporting purposes.
(a) General. In accordance with section 103(a)(2) of the Act, an
insurance carrier or other organization which provides benefits under
the plan or holds plan assets, a bank or similar institution which
holds plan assets, or a plan sponsor shall transmit and certify such
information as needed by the administrator to file the annual report
under section 104(a)(1) of the Act and Sec. 2520.104a-5, Sec.
2520.104a-6, or Sec. 2520.104a-9:
* * * * *
0
4. In Sec. 2520.103-10:
0
a. Revise paragraphs (a) and (b)(1) and (2);
0
b. Redesignate paragraph (c) as paragraph (d);
0
c. Add a new paragraph (c); and
0
d. In newly redesiganted pargraph (d), remove ``paragraphs (b)(1),
(b)(2) or (b)(6)'' and add ``paragraph (b)(1), (2), or (6)'' in its
place.
The revisions and addition read as follows:
Sec. 2520.103-10 Annual report financial schedules.
(a) General. The administrator of a plan filing an annual report
pursuant to Sec. 2520.103-1(a)(2), the report for a group insurance
arrangement pursuant to Sec. 2520.103-2, or the report for a defined
contribution pension plan
[[Page 51306]]
group (DCG) reporting arrangement pursuant to Sec. 2520.103-14, shall,
as provided in the instructions to the Form 5500 ``Annual Return/Report
of Employee Benefit Plan,'' include as part of the report the separate
financial schedules described in paragraph (b) of this section.
(b) * * *
(1) Assets held for investment. (i) A schedule of all assets held
for investment purposes at the end of the plan year (see Sec.
2520.103-11) with assets aggregated and identified by:
(A) Identity of issue, borrower, lessor or similar party to the
transaction (including a notation as to whether such party is known to
be a party in interest);
(B) Description of investment including maturity date, rate of
interest, collateral, par, or maturity value; (including whether the
investment is a hard-to-value asset);
(C) Cost;
(D) Current value, and, in the case of a loan, the payment
schedule;
(E) The asset category in which the asset was reported on the
Schedule H;
(F) The Central Index Key (CIK) number, Legal Entity Identifier
(LEI) Code, or National Association of Insurance Commissioners (NAIC)
Company Code, or other government registration or identity number for
the investment described in paragraphs (b)(1)(i)(A) and (B) of this
section, or if no government number is available, a market or exchange
registration or identity number; and
(G) In the case of individual account plans, whether the investment
is a designated investment alternative (DIA) or a qualified default
investment alternative (QDIA), and for each such DIA and QDIA with
respect to which the return is not fixed, the total annual operating
expenses on the latest 404a-5 statement provided to participants during
the plan year.
(ii) [Reserved]
(2) Assets acquired and disposed within the plan year. (i) A
schedule of all assets acquired and disposed of within the plan year
(see Sec. 2520.103-11) with assets aggregated and identified by:
(A) Identity of issue, borrower, issuer or similar party;
(B) Descriptions of investment including maturity date, rate of
interest, collateral, par, or maturity value;
(C) Cost of acquisitions; and
(D) Proceeds of dispositions.
(ii) [Reserved]
* * * * *
(c) Presentation of investment assets in commingled trusts and
direct filing entities (DFEs). (1) Except as provided in the Form 5500
and the instructions thereto or for filings by direct filing entities
or DCG reporting arrangements, in the case of assets or investment
interests of two or more plans maintained in one trust, entries on the
schedule of assets held for investment purposes at the end of the plan
year and the schedule of assets acquired and disposed of during the
plan year shall be completed by including the plan's allocable portion
of the trust.
(2) In the case of direct filing entities and DCG reporting
arrangements required to file a schedule of assets held for investment
purposes at the end of the plan year and the schedule of assets
acquired and disposed of during the plan year, the entries on the
schedules shall be completed by including the assets held by the DFE or
in the DCG reporting arrangement's trust and shall include the number
of plans with an allocable interest in each listed investment.
* * * * *
0
5. Add Sec. 2520.103-14 to read as follows:
Sec. 2520.103-14 Contents of the annual report for defined
contribution pension plan group (DCG) reporting arrangements.
(a) General. A defined contribution pension plan group reporting
arrangement as described in Sec. 2520.104-51(c) (``DCG reporting
arrangement'') that files a consolidated annual report pursuant to
Sec. 2520.104-51 shall include in such report the items set forth in
paragraph (b) of this section, and shall furnish a summary annual
report as prescribed in Sec. 2520.104b-10.
(b) Contents of the annual report for DCG reporting arrangement.
(1) A Form 5500 ``Annual Return/Report of Employee Benefit Plan'' and
any statements or schedules required to be attached to the form,
completed in accordance with the instructions for the form, including
Schedule A (Insurance Information), Schedule C (Service Provider
Information), Schedule D (DFE/Participating Plan Information), Schedule
G (Financial Transaction Schedules), Schedule H (Financial
Information), Schedule DCG (Individual Plan Information), Schedule R
(Retirement Plan Information), and the other financial schedules
referred to in Sec. 2520.103-10, completed in accordance with the
instructions for the form.
(2) A report of an independent qualified public accountant for the
DCG trust.
(3) Separate financial statements for the DCG reporting arrangement
trust described in Sec. 2520.104-51(c)(2)(i) (in addition to the
information required by paragraph (b)(1) of this section), if such
financial statements are prepared in order for the independent
qualified public accountant to form the opinion required by section
103(a)(3)(A) of the Act and paragraph (b)(6) of this section. These
financial statements shall include the following:
(i) A statement of all trust assets and liabilities at current
value presented in comparative form for the beginning and end of the
year. The statement of trust assets and liabilities shall include the
assets and liabilities required to be reported on the Form 5500;
however, the assets and liabilities may be aggregated into categories
in a manner other than that used on Form 5500.
(ii) Separate or combined statements of all trust income and
expenses and changes in net assets, which includes the categories of
income, expense, and changes in assets required to be reported on the
Form 5500; however, the income, expense, and changes in assets may be
aggregated into categories in a manner other than that used on Form
5500.
(4) Notes to the financial statements described in paragraph (b)(1)
or (2) of this section which contain a description of the accounting
principles and practices reflected in the financial statements and, if
applicable, variances from generally accepted accounting principles; a
description of the DCG reporting arrangement including any significant
changes in the arrangement made during the period and the impact of
such changes on benefits; a description of material lease commitments,
other commitments, and contingent liabilities; a description of
agreements and transactions with persons known to be parties in
interest; a general description of priorities upon termination of the
DCG reporting arrangement; an explanation of the differences, if any,
between the information contained in the separate financial statements
and the assets, liabilities, income, expenses and changes in net assets
as required to be reported on the Form 5500; and any other matters
necessary to fully and fairly present the financial condition of the
DCG reporting arrangement.
(5) In the case of a DCG reporting arrangement some or all of the
assets of which are held in a pooled separate account maintained by an
insurance carrier, or in a common or collective trust maintained by a
bank, trust company or similar institution, a copy of the annual
statement of assets and liabilities of such account or trust for the
fiscal year of the account or trust which ends with or within the plan
year for which the annual report is made as required to be furnished by
such account or trust under Sec. 2520.103-5(c). See Sec. Sec.
2520.103-3 and 2520.103-4 for
[[Page 51307]]
reporting requirements for plans some or all of the assets of which are
held in a pooled separate account maintained by an insurance company,
or a common or collective trust maintained by a bank or similar
institution, and see Sec. 2520.104-51(b)(2) for when the term ``DCG
reporting arrangement'' or ``DCG'' shall be used in place of the term
``plan.''
(6) In the case of a plan participating in a DCG reporting
arrangement covering 100 or more participants at the beginning of the
plan year, the Schedule DCG for each participating plan shall include
the following as provided in the instructions to the Schedule DCG:
(i) A report of an independent qualified public accountant for the
participating plan.
(ii) Separate financial statements and financial schedules
described in Sec. 2520.103-10 for the plan, if such financial
statements and schedules are prepared in order for the independent
qualified public accountant to form the opinion required by section
103(a)(3)(A) of the Act and paragraph (b)(6) of this section. The
financial statement shall include the information set forth in Sec.
2520.103-1(b)(2).
(iii) Notes to the financial statements described in paragraph
(b)(2)(i) of this section, which contain the information set forth in
Sec. 2520.103-1(b)(3).
(iv) In the case of a participating plan, some or all of the assets
of which are held in a pooled separate account maintained by an
insurance company, or a common or collective trust maintained by a bank
or similar institution, the information described in Sec. 2520.103-
1(b)(4).
(c) Technical requirements. The accountant's report required for
the DCG trust and any participating plan subject to the requirements in
paragraph (b)(6) of this section--
(1) Shall be dated;
(2) Shall be signed manually;
(3) Shall indicate the city and state where issued;
(4) Shall identify without detailed enumeration the financial
statements and schedules covered by the report;
(5) Shall state whether the audit was made in accordance with
generally accepted auditing standards;
(6) Shall designate any auditing procedures deemed necessary by the
accountant under the circumstances of the particular case, which have
been omitted, and the reasons for their omission. Authority for the
omission of certain procedures which independent accountants might
ordinarily employ in the course of an audit made for the purpose of
expressing the opinions required by paragraph (b)(5)(iii) of this
section is contained in Sec. 2520.103-8; and
(7) Shall state clearly:
(i) The opinion of the accountant in respect of the financial
statements and schedules covered by the report and the accounting
principles and practices reflected therein; and
(ii) The opinion of the accountant as to the consistency of the
application of the accounting principles with the application of such
principles in the preceding year, or as to any changes in such
principles which have a material effect on the financial statements.
(8) Any matters to which the accountant takes exception shall be
clearly identified, the exception thereto specifically and clearly
stated, and, to the extent practicable, the effect of the matters to
which the accountant takes exception on the related financial
statements given. The matters to which the accountant takes exception
shall be further identified as to:
(i) Those that are the result of DOL regulations; and
(ii) All others.
(d) Electronic filing requirement. See Sec. 2520.104a-2 and the
instructions for the Form 5500 ``Annual Return/Report of Employee
Benefit Plan'' for electronic filing requirements. The common plan
administrator for each plan whose reporting obligations are satisfied
by a DCG filing under this section must maintain an original copy of
the DCG filing, with all required signatures, as part of the DCG's
records.
0
6. Add Sec. 2520.104-51 to read as follows:
Sec. 2520.104-51 Alternative method of compliance for defined
contribution pension plan group (DCG) reporting arrangements.
(a) General. Under the authority of section 110 of the Act and
section 202 of the SECURE Act, the plan administrator common to each
plan (``common plan administrator''), as described in paragraph
(c)(2)(iii) of this section, satisfies the obligation to file an annual
report for each of the plans participating in the DCG reporting
arrangement described in paragraph (c) of this section if the
participating plan meets the requirements of paragraph (b) of this
section.
(b) Application. (1) The alternative method of compliance set out
in this section is available only for an individual account or defined
contribution pension plan in a plan year in which:
(i) Such plan participates in a defined contribution pension plan
group (DCG) reporting arrangement described in paragraph (c) of this
section; and
(ii) A consolidated annual report containing the items set forth in
Sec. 2520.103-14 has been filed with the Secretary of Labor in
accordance with Sec. 2520.104a-9 by the common plan administrator (as
described in paragraph (c)(2)(iii) of this section) for all of the
plans participating in the DCG reporting arrangement (as described in
paragraph (c) of this section).
(2) For purposes of this section, the term ``DCG reporting
arrangement'' or ``common plan administrator'' shall be used in place
of the terms ``plan'' and ``plan administrator,'' in Sec. Sec.
2520.103-3, 2520.103-4, 2520.103-6, 2520.103-8, 2520.103-9, and
2520.103-10 and elsewhere in subpart C of this part and this subpart,
as applicable.
(c) Defined contribution pension plan group (DCG) reporting
arrangement. An arrangement is only a ``DCG reporting arrangement'' if
all plans participating in the arrangement--
(1) Are individual account plans or defined contribution plans as
defined in section 3(34) of the Act;
(2) Have--
(i) The same trustee as described in section 403(a) of the Act
(``common trustee'') and trust(s) (``common trust'');
(ii) The same one or more named fiduciaries as described in section
402(a) of the Act (``common named fiduciaries''), except that nothing
in this paragraph (c)(2)(ii) precludes an individual employer acting as
an additional named fiduciary with respect to the individual plan it
sponsors;
(iii) A designated plan administrator that is the same plan
administrator as defined in section 3(16)(A) of the Act (``common plan
administrator''); and
(iv) Plan years beginning on the same date (``common plan year'');
(3) Provide the same investments or investment options (``common
investments or investment options'') to participants and beneficiaries;
and
(4) Have the investment assets held in a single trust of the DCG
reporting arrangement, and the participating plan:
(i) Do not hold any employer securities at any time during the plan
year;
(ii) At all times during the plan year, are 100% invested in assets
that have a readily determinable fair market value as described in
Sec. 2520.103-1(c)(2)(ii)(C);
(iii) Are either audited by an independent qualified public
accountant (IQPA) or satisfies the audit waiver conditions in Sec.
2520.104-46(b)(1)(i)(A)(1) and (b)(1)(i)(B) and (C);
(iv) Are not a multiemployer plan; and
(v) Are not a multiple employer pension plan, including a pooled
employer plan described in section
[[Page 51308]]
3(43) of the Act and multiple employer defined contribution pension
plans described in Sec. 2510.3-55 of this chapter.
(d) Limitations. The alternative method of reporting set out in
this section does not relieve the administrator of a defined
contribution pension plan participating in a DCG reporting arrangement
described in paragraph (c) of this section from any other requirements
of Title I of the Act, including the provisions which require that plan
administrators furnish copies of the summary plan description to
participants and beneficiaries (section 104(b)(1)), furnish certain
documents to the Secretary of Labor upon request (section 104(a)(6)),
authorize the Secretary of Labor to collect information and data from
employee benefit plans for research and analysis (section 513), and
furnish a copy of a summary annual report to participants and
beneficiaries of the plan, as required by section 104(b)(3) of the Act.
0
7. In Sec. 2520.104a-5, revise paragraph (a) introductoty text to read
as follows:
Sec. 2520.104a-5 Annual reporting filing requirements.
(a) Filing obligation. Except as provided in Sec. Sec. 2520.104a-6
and 2520.104a-9, the administrator of an employee benefit plan required
to file an annual report pursuant to section 104(a)(1) of the Act shall
file an annual report containing the items prescribed in Sec.
2520.103-1 within:
* * * * *
0
8. Add Sec. 2520.104a-9 to read as follows:
Sec. 2520.104a-9 Annual reporting for defined contribution pension
plan group (DCG) reporting arrangements.
(a) General. A defined contribution pension plan group (DCG)
reporting arrangement described in Sec. 2520.104-51(c) that files an
annual report in accordance with the terms of paragraphs (b) and (c) of
this section shall be deemed to have filed such a report for purposes
of Sec. 2520.104-51.
(b) Date of filing. The annual report shall be filed within seven
months after the close of the plan year of the DCG reporting
arrangement, unless extended. See ``When to file'' instructions of the
appropriate Annual Return/Report Form.
(c) Where to file. The annual report prescribed in Sec. 2520.103-
14 shall be filed electronically in accordance with the instructions to
the Annual Return/Report Form.
0
9. In Sec. 2520.104b-10:
0
a. In paragraph (d)(3):
0
i. Revise the ``Summary Annual Report for (name of plan)'';
0
ii. Add paragraphs 11 and 12 immediately following paragraph 10 under
``Your Rights to Additional Information''; and
0
iii. Remove the last undesignated paragraph and add two undesignated
paragraphs in its place; and
0
b. Remove the appendix to the section; and
0
c. Add table 1 at the end of the section.
The revisions and additions read as follows:
Sec. 2520.104b-10 Summary Annual Report.
* * * * *
(d) * * *
(3) * * *
Summary Annual Report for (name of plan)
This is a summary of the annual report [insert as applicable either
Form 5500 Annual Return/Report of Employee Benefit Plan or Form 5500-SF
Annual Return/Report of Small Employee Benefit Plan] of [insert name of
plan and EIN/PN] for [insert period covered by this report]. The
[insert as applicable either Form 5500 or Form 5500-SF] annual report
has been filed with the Employee Benefits Security Administration, as
required under the Employee Retirement Income Security Act of 1974
(ERISA). Your plan is a [insert a brief description of the plan based
on the plan characteristic codes listed for the plan on the Form 5500,
including whether it is a defined contribution or defined benefit plan,
and whether the plan is a pooled employer plan, another type of
multiple employer plan, a single employer plan].
[If the plan is participating in a DCG reporting arrangement]:
Your plan participates in an annual reporting arrangement that
files a consolidated Form 5500 Annual Report for all the separate plans
in the arrangement. This summary includes aggregate information on all
the participating plans from the consolidated Form 5500. The
consolidated Form 5500 also includes a separate schedule (Schedule DCG)
for each individual plan. As noted below regarding your rights to
additional information, you have a right to receive a copy of the
Schedule DCG relating to your plan on request from the plan
administrator.]
* * * * *
Your Rights to Additional Information
* * * * *
0
11. a Schedule DCG for plans participating in a consolidated group Form
5500 filing that includes your plan sponsor's name, EIN, total number
of participants in your plan and basic financial information about the
plan.
0
12. a Schedule MEP, including name and EIN of the employers
participating in the MEP, each participating employer's percentage of
the total contributions (employer and employee) made by all employer
participating in the MEP and aggregate account balance for each of the
employer participating in the MEP.
* * * * *
[If the plan is participating in a DCG reporting arrangement]:
You also have the legally protected right to examine the annual
report at the main office of the plan (address), (at any other location
where the report is available for examination), and at the U.S.
Department of Labor in Washington, DC, or to obtain a copy from the
U.S. Department of Labor upon payment of copying costs. Requests to the
Department should be addressed to: Public Disclosure Room, Room N-1513,
Employee Benefits Security Administration, U.S. Department of Labor,
200 Constitution Avenue NW, Washington, DC 20210. The annual report is
also available online at the Department of Labor website
www.efast.dol.gov.
* * * * *
Table 1 to Sec. 2520.104b-10--The Summary Annual Report (SAR) Under ERISA: A Cross-Reference to the Annual
Report
----------------------------------------------------------------------------------------------------------------
Form 5500 large plan Form 5500 small plan Form 5500-SF filer line
SAR item filer line items filer line items items
----------------------------------------------------------------------------------------------------------------
A. Pension Plan:
1. Funding arrangement........... Form 5500-9a........... Same................... Not applicable.
2. Total plan expenses........... Sch. H-2j.............. Sch. I-2j.............. Line 8h.
3. Administrative expenses....... Sch. H-2i(5)........... Sch. I-2h.............. Line 8f.
4. Benefits paid................. Sch. H-2e(4)........... Sch. I-2e.............. Line 8d.
[[Page 51309]]
5. Other expenses................ Sch. H--Subtract the Sch. I-2i.............. Line 8g.
sum of 2e(4) & 2i(5)
from 2j.
6. Total participants............ Form 5500-6f........... Same................... Line 5b.
6. Value of plan assets (net):
a. End of plan year.......... Sch. H-1l [Col. (b)]... Sch. I-1c [Col. (b)]... Line 7c [Col. (b)].
b. Beginning of plan year.... Sch. H-1l [Col. (a)]... Sch. I-1c [Col. (a)]... Line 7c [Col. (a)].
8. Change in net assets.......... Sch. H--Subtract 1l Sch. I--Subtract 1c Line 7c--Subtract Col.
[Col. (a)] from 1l [Col. (a) from Col. (a) from Col. (b).
[Col. (b)]. (b)].
9. Total income.................. Sch. H-2d.............. Sch. I-2d.............. Line 8c.
a. Employer contributions.... Sch. H-2a(1)(A) & 2a(2) Sch. I-2a(1) & 2b if Line 8a(1) if
if applicable. applicable. applicable.
b. Employee contributions.... Sch. H-2a(1)(B) & 2a(2) Sch. I-2a(2) & 2b if Line 8a(2) & 8a(3) if
if applicable. applicable. applicable.
c. Participating employer's Sch. MEP Line 2c....... Sch. MEP Line 2c....... Not applicable.
percentage of the total
contributions (employer and
employee) made by all
employers participating in a
MEP.
d. Aggregate account balance Sch. MEP Line 2d....... Sch. MEP Line 2d....... Not applicable.
of the employer
participating in a MEP
(determined as the sum of
the account balances of the
employees of such employer
(including the beneficiaries
of such employees).
e. Gains (losses) from sale Sch. H-2b(4)(C)........ Not applicable......... Not applicable.
of assets.
f. Earnings from investments. Sch. H--Subtract the Sch. I-2c.............. Line 8b.
sum of 2a(3), 2b(4)(C)
and 2c from 2d.
11. Total insurance premiums..... Total of all Schs. A-6b Total of all Schs. A-6b Not applicable.
12. Unpaid minimum required
contribution (S-E plans) or
Funding deficiency (ME plans):
a. S-E Defined benefit plans. Sch. SB-39............. Same................... Same.
b. ME Defined benefit plans.. Sch. MB-10............. Same................... Not applicable.
c. Defined contribution plans Sch. R-6c, if more than Same................... Line 12d.
zero.
13. Individual plan information Schedule DCG........... Same................... Not applicable.
for plans participating in a DCG
reporting arrangement.
B. Welfare Plan:
1. Name of insurance carrier..... All Schs. A-1(a)....... Same................... Not applicable.
2. Total (experience rated and All Schs. A--Sum of Same................... Not applicable.
non-experienced rated) insurance 9a(1) and 10a.
premiums.
3. Experience rated premiums..... All Schs. A-9a(1)...... Same................... Not applicable.
4. Experience rated claims....... All Schs. A-9b(4)...... Same................... Not applicable.
5. Value of plan assets (net):
a. End of plan year.......... Sch. H-11 [Col. (b)]... Sch. I-1c [Col. (b)]... Line 7c [Col. (b)].
b. Beginning of plan year.... Sch. H-11 [Col. (a)]... Sch. I-1c [Col. (a)]... Line 7c [Col. (a)].
6. Change in net assets.......... Sch. H--Subtract 1 Sch. I--Subtract 1c Line 7c--Subtract [Col.
[Col. (a)] from 1 [Col. (a)] from 1c (a)] from 7c [Col.
[Col. (b)]. [Col. (b)]. (b)].
7. Total income.................. Sch. H-2d.............. Sch. I-2d.............. Line 8c.
a. Employer contributions.... Sch. H-2a(1)(A) & 2a(2) Sch. I-2a(1) & 2b if Line 8a(1) if
if applicable. applicable. applicable.
b. Employee contributions.... Sch. H-2a(1)(B) & 2a(2) Sch. I-2a(2) & 2b if Line 8a(2) if
if applicable. applicable. applicable.
c. Gains (losses) from sale Sch. H-2b(4)(C)........ Not applicable......... Not applicable.
of assets.
d. Earnings from investments. Sch. H--Subtract the Sch. I-2c.............. Line 8b.
sum of 2a(3), 2b(4)(C)
and 2c from 2d.
8. Total plan expenses........... Sch. H-2j.............. Sch. I-2j.............. Line 8h.
9. Administrative expenses....... Sch. H-2i(5)........... Sch. I-2h.............. Line 8f.
10. Benefits paid................ Sch. H-2e(4)........... Sch. I-2e.............. Line 8d.
[[Page 51310]]
11. Other expenses............... Sch. H--Subtract the Sch. I-2i.............. Line 8g.
sum of 2e(4) & 2i(5)
from 2j.
----------------------------------------------------------------------------------------------------------------
Signed at Washington, DC, this 2nd day of September, 2021.
Ali Khawar,
Acting Assistant Secretary, Employee Benefits Security Administration,
U.S. Department of Labor.
[FR Doc. 2021-19713 Filed 9-14-21; 8:45 am]
BILLING CODE 4510-29-P