Agency Information Collection Activities; Request for Public Comment, 8317-8321 [2023-02621]

Agencies

• Employee Benefits Security Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 88, Number 26 (Wednesday, February 8, 2023)]
[Notices]
[Pages 8317-8321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02621]


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DEPARTMENT OF LABOR

Employee Benefits Security Administration


Agency Information Collection Activities; Request for Public 
Comment

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

ACTION: Notice.

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SUMMARY: The Department of Labor (the Department), in accordance with 
the Paperwork Reduction Act, provides the general public and Federal 
agencies with an opportunity to comment on proposed and continuing 
collections of information. This helps the Department assess the impact 
of its information collection requirements and minimize the public's 
reporting burden. It also helps the public understand the Department's 
information collection requirements and provide the requested data in 
the desired format. The Employee Benefits Security Administration 
(EBSA) is soliciting comments on the proposed extension of the 
information collection requests (ICRs) contained in the documents 
described below. A copy of the ICRs may be obtained by contacting the 
office listed in the ADDRESSES section of this notice. ICRs also are 
available at reginfo.gov (https://www.reginfo.gov/public/do/PRAMain).

[[Page 8318]]


DATES: Written comments must be submitted to the office shown in the 
Addresses section on or before April 10, 2023.

ADDRESSES: James Butikofer, Department of Labor, Employee Benefits 
Security Administration, 200 Constitution Avenue NW, Room N-5718, 
Washington, DC 20210, or [email protected].

SUPPLEMENTARY INFORMATION: 

I. Current Actions

    This notice requests public comment on the Department's request for 
extension of the Office of Management and Budget's (OMB) approval of 
ICRs contained in the rules and prohibited transaction exemptions 
described below. The Department is not proposing any changes to the 
existing ICRs at this time. An agency may not conduct or sponsor, and a 
person is not required to respond to, an information collection unless 
it displays a valid OMB control number. A summary of the ICRs and the 
burden estimates follows:
    Agency: Employee Benefits Security Administration, Department of 
Labor.
    Title: Loans to Plan Participants and Beneficiaries Who Are Parties 
in Interest with Respect to The Plan Regulation.
    Type of Review: Extension of a currently approved collection of 
information.
    OMB Number: 1210-0076.
    Affected Public: Not-for-profit institutions, Businesses or other 
for-profits.
    Respondents: 2,576.
    Responses: 2,576.
    Estimated Total Burden Hours: 0.
    Estimated Total Burden Cost (Operating and Maintenance): 
$1,069,632.
    Description: Section 408(b)(1)(C) of ERISA requires plan loans to 
be made in accordance with specific provisions set forth in the plan 
document. The Department's regulation at 29 CFR 2550.408b-1(d) 
prescribes eight specific provisions that must be included in the plan 
documents, including: (1) an explicit authorization for the plan 
fiduciary responsible for investing plan assets to establish such a 
loan program; (2) the identity of the person or position authorized to 
administer the program; (3) a procedure for applying for loans; (4) the 
basis on which loans will be approved or denied; (5) limitations (if 
any) on the types and amounts of loans offered; (6) the procedure for 
determining a reasonable rate of interest; (7) types of collateral that 
may secure a participant loan; and (8) the events constituting default 
and the steps that will be taken to preserve plan assets in the event 
of such default.
    The information will be used by plan participants and beneficiaries 
wishing to obtain plan loans. It also will be used by plan 
administrators in administering their plans' loan program. The 
Department also will use the information in any enforcement proceedings 
regarding plan loans. The Department has received approval from OMB for 
this ICR under OMB Control No. 1210-0076. The current approval is 
scheduled to expire on July 31, 2023.
    Agency: Employee Benefits Security Administration, Department of 
Labor.
    Title: Prohibited Transaction Class Exemption 1985-68 to Permit 
Employee Benefit Plans to Invest in Customer Notes of Employers.
    Type of Review: Extension of a currently approved collection of 
information.
    OMB Number: 1210-0094.
    Affected Public: Not-for-profit institutions, Businesses or other 
for-profits.
    Respondents: 69.
    Responses: 325.
    Estimated Total Burden Hours: 1.
    Estimated Total Burden Cost (Operating and Maintenance): $0.
    Description: Prohibited Transaction Exemption 85-68 provides that a 
plan is exempt from ERISA sections 406(a), 406(b)(1) and (2), and 
407(a) with respect to the acquisition, holding, or resale of customer 
notes, executed along with a security agreement for tangible personal 
property, from an employer of employees covered by the plan in the 
ordinary course of the employer's business activity, provided that the 
conditions of the exemption are met The customer notes must have been 
accepted by the employer in its primary business activity as the seller 
of tangible personal property that is being financed by the notes. The 
exemption does not apply to notes of an employer's affiliate.
    The Department has included in the class exemption a recordkeeping 
provision, whereby plans are required to maintain the records, 
information, and data which relate to plan investments in customer 
notes that is otherwise required to be maintained. The class exemption 
requires that those records be made available to certain persons on 
request. Without this recordkeeping requirement, the Department would 
be unable to effectively enforce the terms of the exemption and ensure 
user compliance. The Department has received approval from OMB for this 
ICR under OMB Control No. 1210-0094. The current approval is scheduled 
to expire on July 31, 2023.
    Agency: Employee Benefits Security Administration, Department of 
Labor.
    Title: Summary Plan Description Requirements Under the Employee 
Retirement Income Security Act of 1974, as Amended.
    Type of Review: Extension of a currently approved collection of 
information.
    OMB Number: 1210-0039.
    Affected Public: Businesses or other for-profits, Not-for-profit 
institutions.
    Respondents: 3,033,000.
    Responses: 112,733,000.
    Estimated Total Burden Hours: 162,956.
    Estimated Total Burden Cost (Operating and Maintenance): 
$235,556,141.
    Description: The Department has promulgated regulations governing 
the content and furnishing of SPDs, SMMs, and SMRs at 29 CFR 102-2 
(Style and Format of Summary Plan Descriptions); 29 CFR 2520.102-3 
(Contents of Summary Plan Descriptions); 29 CFR 2520.102-4 (Option for 
Different Summary Plan Descriptions); 29 CFR 2520.2520.104b-1 
(Disclosure); 29 CFR 2520.104b-2 (Summary Plan Descriptions); 29 CFR 
104b-3 (Summary of Material Modifications to the Plan and Changes in 
the Information Required to be Included in the Summary Plan 
Description); and 29 CFR 104(b)-(4) (Alternative Methods of Compliance 
for Furnishing the Summary Plan Description and Summaries of Material 
Modifications of a Pension Plan to a Retired Participant, a Separated 
Participant, and a Beneficiary Receiving Benefits). These regulations 
set standards for the content of these disclosure documents, the 
methods of furnishing that will satisfy the statutory disclosure 
requirements, and alternative methods of compliance. In particular, 
regulations at 29 CFR 2520.104b-1(c) specifically describe the 
circumstances under which the administrator of an employee benefit plan 
may furnish required disclosure documents, including the SPD/SMM/SMR, 
through electronic media.
    The Department's regulations contain information collections that 
constitute mandatory third-party disclosure requirements applicable to 
the majority of ERISA-covered pension and welfare benefit plans. The 
Department has determined that these information collections are 
necessary in order to ensure the participants and beneficiaries in 
employee benefit plans covered under ERISA receive adequate information 
about the benefits due to them and their rights under the plans. The 
Department has received approval from OMB for this ICR under OMB 
Control No. 1210-0039. The current

[[Page 8319]]

approval is scheduled to expire on August 31, 2023.
    Agency: Employee Benefits Security Administration, Department of 
Labor.
    Title: Disclosures for Participant Directed Individual Account 
Plans.
    Type of Review: Extension of a currently approved collection of 
information.
    OMB Number: 1210-0090.
    Affected Public: Businesses or other for-profits.
    Respondents: 569,969.
    Responses: 769,693,310.
    Estimated Total Burden Hours: 5,914,334.
    Estimated Total Burden Cost (Operating and Maintenance): 
$223,980,233.
    Description: The Department published a final regulation under 
ERISA section 404(a), with conforming amendments to the regulations 
under ERISA section 404(c) that requires plan fiduciaries to disclose 
plan- and investment-related fee and expense information to 
participants and beneficiaries in all participant directed individual 
account plans (e.g., 401(k)-type plans) for plan years that began on or 
after January 1, 2010 and at least annually thereafter (defined by 
regulation as at least once in any 14-month period, without regard to 
whether the plan operates on a calendar or fiscal year basis).
    The final rule, 29 CFR 2550.404a-5(c), requires three sub-
categories of Plan-related information to be provided to participants 
and beneficiaries. The first sub-category is General Plan Information, 
which includes how participants may give investment instructions or 
exercise proxy voting or tendering rights, restrictions on transferring 
account assets among investment alternatives, and identification of the 
plan's designated investment alternatives and designated investment 
managers (29 CFR 2550.404a-5(c)(1)). The second sub-category of Plan-
related information is Administrative Expense Information, which refers 
to explanations of any fees and expenses for general plan 
administrative services (e.g., legal, accounting, recordkeeping) 
charged to individual accounts and the basis for allocating such 
charges among the accounts (e.g., pro-rata, per capita). (29 CFR 
2550.404a-5(c)(2)). The third sub-category of Plan-related information 
is Individual Expense Information, which describes expenses assessed 
against accounts based on the actions taken by individual participants 
or beneficiaries. This would include charges for processing participant 
loans and qualified domestic relations orders. (29 CFR 2550.404a-
5(c)(3)).
    The rule also requires plan administrators to disclose three sub-
categories of investment-related information to participants and 
beneficiaries on or before their date of eligibility, which relates to 
the plans designated investment alternatives. The first sub-category of 
information is information required to be provided automatically. (29 
CFR 2550.404a-5(d)(1)). For each designated investment alternative, the 
plan must disclose specified identifying information, past performance 
data, comparable benchmark returns, fee and expense information, and an 
internet website address that is sufficiently specific to lead 
participants and beneficiaries to specified supplemental information 
for each investment alternative. The latest information available to 
the plan must be furnished annually. Material changes to this 
information must be disclosed at least 30 days but no more than 90 days 
before the effective date of the change except for unforeseen events or 
circumstances beyond the plan administrator's control. Investment-
related information must be furnished in a chart or similar format 
designed to help participants compare the plan's investment 
alternatives across each category of information. (29 CFR 2550.404a-
5(d)(2)). To facilitate compliance, the rule includes a model chart 
that may be used by plan fiduciaries to satisfy this requirement. The 
second sub-category of investment-related information is Post-
Investment Information. Following a participant's investment in an 
alternative, the plan administrator must provide any materials it 
receives regarding voting, tender or similar rights in the alternative 
(``pass-through materials'') to the extent such rights are passed 
through to the participant or beneficiary. (29 CFR 2550.404a-5(d)(3)). 
The third sub-category of investment-related information is Information 
to be provided upon Request (29 CFR 2550.404a-5(d)(4)). Participants 
may request the plan to provide prospectuses, financial reports, as 
well as statements of valuation and a list of assets held by an 
investment alternative.
    The information collection describes the timeframes and acceptable 
format for providing the disclosures. The Department has received 
approval from OMB for this ICR under OMB Control No. 1210-0090. The 
current approval is scheduled to expire on August 31, 2023.
    Agency: Employee Benefits Security Administration, Department of 
Labor.
    Title: Electronic Disclosure by Employee Benefit Plans.
    Type of Review: Extension of a currently approved collection of 
information.
    OMB Number: 1210-0121.
    Affected Public: Businesses or other for-profits.
    Respondents: 757,635.
    Responses: 82,853,832.
    Estimated Total Burden Hours: 1,567,541.
    Estimated Total Burden Cost (Operating and Maintenance): 
$21,441,854.
    Description: On January 28, 1999, the Department published a notice 
of proposed rulemaking on electronic disclosure and recordkeeping 
issues (64 FR 4506). Where, previously, only group health plans had 
specifically been provided with a safe harbor for electronic 
disclosure, the proposal expanded the use of electronic disclosure to 
include all pension and welfare benefit plans covered by Title I of 
ERISA. In addition, the proposal added summary annual reports to the 
list of disclosure documents included in the safe harbor provisions. On 
April 9, 2002, the Department published a notice of final rulemaking on 
electronic disclosure and recordkeeping issues (67 FR 17264) to 
establish a ``safe harbor'' for the use of electronic media to satisfy 
the general furnishing requirement. In 2020, the Department issued a 
final rule providing a new safe harbor (Notice-and-Access Safe Harbor) 
for plan administrators who wish to satisfy ERISA's delivery 
requirements for retirement plan documents by posting them on a website 
and notifying workers of the online availability of such documents (85 
FR 31884).
    The information collection contains a third-party disclosure. The 
consent serves to demonstrate to the plan administrator that an 
individual has the ability to access information in the electronic form 
that will be used for disclosure purposes. Such confirmation will 
ensure the compatibility of the hardware and software between the 
individual and the plan, and will also serve to demonstrate that the 
administrator has taken appropriate and necessary measures reasonably 
calculated to ensure that the system for furnishing documents results 
in actual receipt, as required under ERISA. Lastly, where applicable, 
the consent provides a means for the individual to provide the plan 
with the correct email address to facilitate the efficiencies that may 
arise from the use of electronic technologies where appropriate.
    Retirement plan administrators may satisfy their obligation to 
furnish ERISA-required disclosures by making the information accessible 
online and

[[Page 8320]]

furnishing a notice of internet availability of these disclosures to 
covered individuals. The notice of internet availability must be sent 
to the electronic address of the participant, for example to the 
participant's email address and include, among other things, a brief 
description of the document being posted online, a website address 
where the document is posted, and instructions for requesting a free 
paper copy or electing paper delivery in the future. It must be sent 
each time a retirement plan disclosure is posted to the internet 
website. To prevent ``email overload,'' the 2019 final rule allows a 
notice of internet availability to incorporate or combine other notices 
of internet availability in limited circumstances. The Department has 
received approval from OMB for this ICR under OMB Control No. 1210-
0121. The current approval is scheduled to expire on August 31, 2023.
    Agency: Employee Benefits Security Administration, Department of 
Labor.
    Title: Defined Benefit Plan Annual Funding Notice.
    Type of Review: Extension of a currently approved collection of 
information.
    OMB Number: 1210-0126.
    Affected Public: Businesses or other for-profits, Not-for-profit 
institutions.
    Respondents: 32,165.
    Responses: 65,526,626.
    Estimated Total Burden Hours: 197,336.
    Estimated Total Burden Cost (Operating and Maintenance): 
$7,080,504.
    Description: In 2012, Congress enacted the Moving Ahead for 
Progress in the 21st Century Act (MAP-21). The law provides funding 
interest rate stabilization for single employer defined benefit (DB) 
plans, effective for plan years beginning on and after January 1, 2012. 
MAP-21 set a floor (or ceiling) for the interest rates that single 
employer defined benefit plan administrators generally are required to 
use to calculate contributions. Under the rules, the generally required 
interest rates are limited to rates that are within a specified range, 
or corridor, above or below a 25-year average for the rates.
    Section 40211(b)(2)(A) of MAP-21 amended ERISA section 101(f)(2) by 
adding a new subparagraph (D), which requires single-employer defined 
benefit plan administrators to disclose additional information in the 
annual funding notice for a plan year beginning after December 31, 
2011, regarding the effect of the MAP-21 segment rate stabilization 
rules on plan liabilities and the plan sponsor's minimum required 
contributions to the plan. Section 40211(b)(2)(B) of MAP-21 directed 
the Department to modify the model annual funding notice required under 
section 501(c) of the Pension Protection Act of 2006 (PPA), to 
prominently include the supplemental information required under ERISA 
section 101(f)(2)(D). The Department issued Field Assistance Bulletin 
(FAB) 2013-01 to address issues related to the disclosures required by 
section 101(f)(2)(D) and to provide a model segment rate stabilization 
supplement for the annual funding notices of single-employer plans. The 
Department subsequently issued FAB 2015-01 to address changes made to 
the segment stabilization rules and the supplement required by section 
101(f)(2)(D) by the Highway and Transportation and Funding Act of 2014. 
The segment rate stabilization rules and section 101(f)(2)(D) of ERISA 
were further modified by the Bipartisan Budget Act of 2015, the 
American Rescue Plan Act of 2021, and the Infrastructure Investment and 
Jobs Act extending the requirement to furnish the segment rate 
stabilization requirement-through the 2034
    The Cooperative and Small Employer Charity Pension Flexibility Act, 
Public Law 113-97 (2014) added a new subparagraph (E) to section 
101(f)(2) of ERISA which required CSEC plans to include additional 
information in their annual funding notices. The Department reserved 
section 2520.101-5(m) of the final regulation for CSEC plans.
    The Multiemployer Pension Reform Act of 2014 (MPRA), Public Law 
113-235 (2014), added new disclosure requirements to section 
101(f)(2)(B) of ERISA relating to the new multiemployer funding 
classification of ``critical and declining status.'' A plan is in 
critical and declining status if it is in critical status and is 
projected to become insolvent with 15 years (or within 20 years if a 
special rule applies). MPRA requires the annual funding notice of 
critical and declining status plans to include the projected date of 
insolvency; a clear statement that such insolvency may result in 
benefit reductions; and a statement describing whether the plan sponsor 
has taken legally permitted actions to prevent insolvency. These 
requirements were added to the final regulation and the multiemployer 
plan model notice to reflect the MPRA amendments to ERISA section 
101(f) and are included in the hour burden to complete that notice.
    MPRA requires the annual funding notice of critical and declining 
status plans to include the projected date of insolvency; a clear 
statement that such insolvency may result in benefit reductions; and a 
statement describing whether the plan sponsor has taken legally 
permitted actions to prevent insolvency. These requirements were added 
to the final regulation and the multiemployer plan model notice to 
reflect the MPRA amendments to ERISA section 101(f).
    On February 2, 2015, the Department published final rules 
implementing ERISA section 101(f). As required by statute, the final 
rule requires the plan administrator of a defined benefit pension plan 
that is subject to the Pension Benefit Guaranty Corporation's Insurance 
Program to furnish a funding notice annually to participants, 
beneficiaries, labor organizations representing such participants or 
beneficiaries, employers obligated to make contributions to a 
multiemployer plan, and the Pension Benefit Guaranty Corporation 
(PBGC). Large plans must furnish the notice by the 120th day following 
the end of the plan year to which the notice relates. A small plan may 
furnish a funding notice on or before the due date, with extensions, of 
the plan's Form 5500 Annual Return/Report filed with the Department.
    The final rule provides guidance and model annual funding notices. 
Administrators of single and multiemployer defined benefit plans can 
use the guidance provided in the final rule (and the included model 
notices) to furnish an annual notice of the plan's funded status to the 
plan's participants and beneficiaries and other specified interested 
parties (each labor organization representing such participants or 
beneficiaries, each employer that has an obligation to contribute under 
the plan, and the PBGC) as required by ERISA 101(f). The Department has 
received approval from OMB for this ICR under OMB Control No. 1210-
0126. The current approval is scheduled to expire on August 31, 2023.
    Agency: Employee Benefits Security Administration, Department of 
Labor.
    Title: Default Investment Alternatives under Participant Directed 
Individual Account Plans.
    Type of Review: Extension of a currently approved collection of 
information.
    OMB Number: 1210-0132.
    Affected Public: Businesses or other for-profits, Not-for-profit 
institutions.
    Respondents: 296,568.
    Responses: 39,548,933.
    Estimated Total Burden Hours: 76,011.
    Estimated Total Burden Cost (Operating and Maintenance): 
$2,073,509.
    Description: The Department of Labor finalized a regulation under 
ERISA section 404(c)(5)(A). The regulation

[[Page 8321]]

offers guidance on the types of investment vehicles that plans may 
choose as their ``qualified default investment alternative'' (QDIA). 
The regulation also outlines two types of information collections. 
First, it implements the statutory requirement that plans provide 
annual notices to participants and beneficiaries whose account assets 
could be invested in a QDIA. Second, the regulation requires plans to 
pass any pertinent materials they receive from a QDIA to those 
participants and beneficiaries with assets invested in the QDIA as well 
to provide certain information on request. These two information 
collections are necessary to inform participants and beneficiaries, who 
do not make investment elections, of the consequences of their failure 
to elect investments, the ways in which their account assets will be 
invested through the QDIA, and of their continuing opportunity to make 
other investment elections, including options available under the plan. 
The Department has received approval from OMB for this ICR under OMB 
Control No. 1210-0132. The current approval is scheduled to expire on 
August 31, 2023.
    Agency: Employee Benefits Security Administration, Department of 
Labor.
    Title: Registration Requirements to Serve as a Pooled Plan Provider 
to Pooled Employer Plans--Form PR.
    Type of Review: Extension of a currently approved collection of 
information.
    OMB Number: 1210-0164.
    Affected Public: Businesses or other for-profits.
    Respondents: 1,660.
    Responses: 2,813.
    Estimated Total Burden Hours: 1,676.
    Estimated Total Burden Cost (Operating and Maintenance): $0.
    Description: Section 101 of The Setting Every Community Up for 
Retirement Enhancement Act of 2019 (the SECURE Act) amended ERISA 
section 3(2) and added new sections 3(43) and 3(44) to establish a new 
type of ERISA-covered retirement savings plan called a ``pooled 
employer plan.'' Among other requirements, pooled employer plans must 
be operated by a designated ``pooled plan provider.'' The SECURE Act 
provides that pooled plan provider'' can begin offering pooled employer 
plans'' on January 1, 2021, as long as pooled plan providers register 
with the Labor Department (the Department) and the Treasury Department 
(Treasury) before beginning operations as a pooled plan provider.
    The final rule requires an initial registration filing and 
supplemental filings to report changes in the information in the 
initial filing, information about each specific pooled employer plan at 
its inception, and information on specified reportable events, time-
sensitive knowledge of which will allow the Agencies to carry out their 
joint oversight responsibilities and for participating employers to be 
able to exercise their fiduciary duties to select and monitor pooled 
plan providers. The final rule requires a final filing once the 
provider's last pooled employer plan has been terminated and ceased 
operations.
    The initial registration, supplemental filing, and final filing 
requirements will provide the Agencies with timely access to 
information needed to help them protect plan participants and 
beneficiaries and conduct effective monitoring and oversight of pooled 
employer plans and pooled plan providers as required by the SECURE Act. 
Without this kind of timely information, the Agencies would typically 
not learn of risks to a pooled employer plan until the plan files a 
Form 5500, possibly many months after the event (assuming the 
information was even required to be reported on the Form 5500), and 
when opportunities for protecting plan participants from financial 
injury have been missed. The Department has received approval from OMB 
for this ICR under OMB Control No. 1210-0164. The current approval is 
scheduled to expire on November 30, 2023.

II. Focus of Comments

    The Department is particularly interested in comments that:
     Evaluate whether the collections of information are 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
     Evaluate the accuracy of the agency's estimate of the 
collections of information, including the validity of the methodology 
and assumptions used;
     Enhance the quality, utility, and clarity of the 
information to be collected; and
     Minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., by 
permitting electronic submissions of responses.
    Comments submitted in response to this notice will be summarized 
and/or included in the ICR for OMB approval of the information 
collection; they will also become a matter of public record.

    Signed at Washington, DC, this 1st day of February 2023.
Lisa M. Gomez,
Assistant Secretary, Employee Benefits Security Administration, U.S. 
Department of Labor.
[FR Doc. 2023-02621 Filed 2-7-23; 8:45 am]
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