Annual Reporting and Disclosure, 31608-31610 [2023-09227]
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31608
Federal Register / Vol. 88, No. 96 / Thursday, May 18, 2023 / Rules and Regulations
procedures and air navigation, it is
certified that this rule, when
promulgated, does not have a significant
economic impact on a substantial
number of small entities under the
criteria of the Regulatory Flexibility Act.
lotter on DSK11XQN23PROD with RULES1
Environmental Review
The FAA has determined that this
action of amending VOR Federal airway
V–171, due to the planned
decommissioning of the VOR portion of
the Roseau, MN, VOR/DME NAVAID,
qualifies for categorical exclusion under
the National Environmental Policy Act
(42 U.S.C. 4321 et seq.) and its
implementing regulations at 40 CFR part
1500, and in accordance with FAA
Order 1050.1F, Environmental Impacts:
Policies and Procedures, paragraph 5–
6.5a, which categorically excludes from
further environmental impact review
rulemaking actions that designate or
modify classes of airspace areas,
airways, routes, and reporting points
(see 14 CFR part 71, Designation of
Class A, B, C, D, and E Airspace Areas;
Air Traffic Service Routes; and
Reporting Points); paragraph 5–6.5b,
which categorically excludes from
further environmental impact review
actions regarding establishment of jet
routes and Federal airways (see 14 CFR
71.15, Designation of jet routes and VOR
Federal airways); and paragraph 5–6.5i,
which categorically excludes from
further environment impact review the
establishment of new or revised air
traffic control procedures conducted at
3,000 feet or more above ground level
(AGL); procedures conducted below
3,000 feet AGL that do not cause traffic
to be routinely routed over noise
sensitive areas; modifications to
currently approved procedures
conducted below 3,000 feet AGL that do
not significantly increase noise over
noise sensitive areas; and increases in
minimum altitudes and landing
minima. As such, this action is not
expected to result in any potentially
significant environmental impacts. In
accordance with FAA Order 1050.1F,
paragraph 5–2 regarding Extraordinary
Circumstances, the FAA has reviewed
this action for factors and circumstances
in which a normally categorically
excluded action may have a significant
environmental impact requiring further
analysis. The FAA has determined that
no extraordinary circumstances exist
that warrant preparation of an
environmental assessment or
environmental impact study.
Jkt 259001
PART 71—DESIGNATION OF CLASS A,
B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
1. The authority citation for 14 CFR
part 71 continues to read as follows:
■
Authority: 49 U.S.C. 106(f), 106(g); 40103,
40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR,
1959–1963 Comp., p. 389.
§ 71.1
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of FAA Order JO 7400.11G,
Airspace Designations and Reporting
Points, dated August 19, 2022, and
effective September 15, 2022, is
amended as follows:
■
Paragraph 6010(a)
Airways.
*
*
*
Domestic VOR Federal
*
*
V–171 [Amended]
From Lexington, KY; INT Lexington 251°
and Louisville, KY, 114° radials; Louisville;
Terre Haute, IN; Danville, IL; Peotone, IL;
INT Peotone 281° and Joliet, IL, 173° radials;
to Joliet. From Nodine, MN; INT Nodine 298°
and Farmington, MN, 124° radials;
Farmington; Darwin, MN; Alexandria, MN;
INT Alexandria 321° and Grand Forks, ND,
152° radials; to Grand Forks.
*
*
*
*
*
Issued in Washington, DC, on May 11,
2023.
Brian Konie,
Acting Manager, Airspace Rules and
Regulations.
[FR Doc. 2023–10501 Filed 5–17–23; 8:45 am]
requests; removal of administrative stay;
final amendment; correction.
The Food and Drug
Administration (FDA or we) is
correcting a final order that appeared in
the Federal Register on April 14, 2023.
The document responded to objections
and requests for a public hearing on the
final rule to revoke the standards for
lowfat yogurt and nonfat yogurt and
amend the standard for yogurt. The final
order published with an inadvertent
error. This document corrects that error.
DATES: Effective May 18, 2023.
FOR FURTHER INFORMATION CONTACT:
Andrea Krause, Center for Food Safety
and Applied Nutrition (HFS–820), Food
and Drug Administration, 5001 Campus
Dr., College Park, MD 20740, 240–402–
2371, or Holli Kubicki, Center for Food
Safety and Applied Nutrition, Office of
Regulations and Policy (HFS–024), Food
and Drug Administration, 5001 Campus
Dr., College Park, MD 20740, 240–402–
2378.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Correction
In the Federal Register of April 14,
2023 (88 FR 22907), in FR Doc. 2023–
07723, the following correction is made:
On page 22908, in the first column,
under DATES, the compliance date is
corrected to read: ‘‘January 1, 2024’’.
Dated: May 15, 2023.
Lauren K. Roth,
Associate Commissioner for Policy.
[FR Doc. 2023–10606 Filed 5–17–23; 8:45 am]
BILLING CODE 4164–01–P
DEPARTMENT OF LABOR
BILLING CODE 4910–13–P
Employee Benefits Security
Administration
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
29 CFR Part 2520
Food and Drug Administration
21 CFR Part 131
International Dairy Foods Association:
Response to the Objections and
Requests for a Public Hearing on the
Final Rule To Revoke the Standards for
Lowfat Yogurt and Nonfat Yogurt and
Amend the Standard for Yogurt;
Correction
Food and Drug Administration,
Final order; response to
objections and denial of public hearing
ACTION:
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RIN 1210–AB97
Annual Reporting and Disclosure
Employee Benefits Security
Administration, Labor.
ACTION: Final rule; technical correction;
change to operational date.
AGENCY:
[Docket No. FDA–2000–P–0126 (formerly
Docket No. 2000P–0658)]
HHS.
Airspace, Incorporation by reference,
Navigation (air).
16:21 May 17, 2023
In consideration of the foregoing, the
Federal Aviation Administration
amends 14 CFR part 71 as follows:
AGENCY:
List of Subjects in 14 CFR Part 71
VerDate Sep<11>2014
The Amendment
Sfmt 4700
On February 24, 2023, the
Employee Benefits Security
Administration for the U.S. Department
of Labor (the Department or DOL)
published a final rule on annual
reporting requirements under Title I of
the Employee Retirement Income
Security Act of 1974, as amended
(ERISA). This document contains two
technical changes to the regulations: it
changes the operational date of the final
SUMMARY:
E:\FR\FM\18MYR1.SGM
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Federal Register / Vol. 88, No. 96 / Thursday, May 18, 2023 / Rules and Regulations
rule amendments to the regulations to
address the Congressional Review Act
(CRA) requirement under which a major
rule cannot be effective until 60 days
after publication in the Federal Register
or receipt by Congress, whichever is
later. The other corrects a typographical
error in the lettering of a paragraph in
the regulations.
DATES: This final rule is effective May
31, 2023. The operational date of the
amendments published at 88 FR 11793
is changed from April 25, 2023, to May
31, 2023.
FOR FURTHER INFORMATION CONTACT:
Janet Song, Florence Novellino 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 tollfree number).
SUPPLEMENTARY INFORMATION:
A. Background
lotter on DSK11XQN23PROD with RULES1
On February 24, 2023, the Department
of Labor (DOL or Department), the
Internal Revenue Service (IRS) and the
Pension Benefit Guaranty Corporation
(PBGC) published Federal Register
notices that announced changes 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. For DOL,
the final rule included a Notice of Final
Forms Revisions (Final Forms
Revisions) jointly issued by the DOL,
IRS and PBGC, and a DOL-only Final
Rule (Final Rule) that made
corresponding changes to the DOL
annual reporting regulations under Title
I of ERISA.1
1 See Notice of Final Forms Revisions at 88 FR
11984 and Final Rule at 88 FR 11793. The DOL,
IRS, PBGC treat the Form 5500 annual return/report
as an ‘‘information collection’’ subject to the
Paperwork Reduction Act (PRA), but, due to the
statutory and regulatory provisions in Title I of
ERISA governing annual reporting by employee
benefit plans, DOL changes to the forms and
instructions generally are rules under the
Administrative Procedure Act (APA). Sometimes
changes in the forms and instructions do not
require changes to the DOL’s underlying reporting
regulations. In those cases, one Federal Register
notice is used as both the PRA notice and the APA
rulemaking document. See, e.g.,
www.federalregister.gov/documents/2022/05/23/
2022-10658/annual-information-returnreports.
When changes to the forms and schedules require
amendments to DOL’s annual reporting regulations
(as they did here with the addition of new
schedules and a new reporting option), there is a
tri-agency notice with IRS and PBGC that includes
the PRA sections and DOL publishes a separate
notice with the regulatory amendments and the
APA rulemaking components (e.g., regulatory
impact analysis and CRA classification). The Final
Forms Revisions and Final Rule include crossreferences that are intended to communicate the
connectedness of the notices as a final rule.
VerDate Sep<11>2014
16:21 May 17, 2023
Jkt 259001
Pursuant to the Congressional Review
Act (CRA), OMB designated the final
rule as a ‘‘major rule,’’ as defined by 5
U.S.C. 804(2).2 The changes to the
annual return/report forms, instructions,
and regulations are applicable to annual
return/reports for plan years beginning
on or after January 1, 2023, (see 88 FR
11984). Annual return/reports generally
are due to be filed beginning seven
months after the end of the applicable
plan year (e.g., July 31, 2024, for 2023
annual return/reports for calendar year
plans). The Final Rule had a stated
effective date of April 25, 2023, (see 88
FR 11793).
The Final Rule included additions to
the ERISA annual reporting regulations
to implement the directive to the
Secretary of Labor in section 202 of the
Setting Every Community Up for
Retirement Enhancement Act of 2019,
commonly known as the SECURE Act,
to jointly with the Secretary of the
Treasury provide for a single,
consolidated Form 5500 filing option
that would satisfy the annual reporting
obligations for the defined contribution
pension plans participating in a Defined
Contribution Group (DCG) reporting
arrangement. The Final Rule included
newly added regulations at 29 CFR
2520.103–14 and 2520.104–51 setting
forth requirements applicable to the
DCG reporting arrangement, the
participating plans, and the content of
the consolidated Form 5500 filing.
B. CRA Date
The CRA requires that before a final
rule can take effect it must be submitted
to the Senate and the House of
Representatives and to the Government
Accountability Office (GAO), along with
a concise general statement of the rule
and its effective date.3 Under the CRA,
as pertinent here, the effective date of a
major rule (which corresponds to an
operational date in a Federal Register
rule document) must be no earlier than
‘‘the later of the date occurring 60 days
after the date on which . . . the
Congress received the [required] report
. . . or . . . the rule is published in the
Federal Register . . . .’’ As noted
above, the Final Rule and Final Forms
2 See
88 FR at 11797.
5 U.S.C. 801–808. Under the Congressional
Review Act (CRA) two types of rules, major and
nonmajor, must be submitted to both Houses of
Congress and GAO before either can take effect.
CRA defines a ‘‘major’’ rule as one which has
resulted in or is likely to result in (1) an annual
effect on the economy of $100 million or more; (2)
a major increase in costs or prices for consumers,
individual industries, government agencies, or
geographic regions; or (3) significant adverse effects
on competition, employment, investment,
productivity, innovation, or on the ability of U.S.based enterprises to compete with foreign-based
enterprises in domestic and export markets.
3 See
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31609
Revisions were designated as a major
rule for DOL and were published in the
Federal Register on February 24, 2023.
Although the report to GAO was
delivered via the GAO electronic
process for CRA submissions 4 on
February 24, 2023, the Congressional
Record reflects that the House received
the final rule on February 28, 2023, 169
Cong. Rec. H1111 (daily ed. Mar. 3,
2023), and the Senate on March 6, 2023,
169 Cong. Rec. S858 (daily ed. March
21, 2023). As noted above, the Final
Rule’s notice at 88 FR 11793 published
on February 24, 2023, in the Federal
Register, has a stated effective date of
April 25, 2023 (which means that the
Federal Register rule’s operational date
was also April 25, 2023). Therefore,
based on the dates of House and Senate
receipt, that stated CRA effective date is
earlier than 60 days after the receipt by
Congress of the published final rule. In
light of the fact that the April 25
effective date has passed, this final rule
changes the operational date of April 25,
2023 to May 31, 2023, a date that is later
than 60 days after receipt of the
published rule by Congress.
C. 29 CFR 2520.103–14 Paragraph
Lettering
The Final Rule added 29 CFR
2520.103–14 as a new annual reporting
regulation that sets forth requirements
for the consolidated annual report for a
DCG reporting arrangement. The
preamble of the Final Rule stated that
paragraph (c) of § 2520.103–14 provides
that DCG reporting arrangements must
comply with the electronic filing
requirements that apply to all plan filers
and direct filing entities, including the
requirement 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 published
regulatory text, however, omitted
paragraph (c) and designated the
paragraph as paragraph (d). The
Department is correcting the paragraph
lettering to designate the paragraph as
paragraph (c).
D. Good Cause Findings Under 5 U.S.C.
553(b)(3)(B) and 553(d)(3)
Under 5 U.S.C. 553(b) of the
Administrative Procedure Act (APA), an
agency is required to publish a notice of
the proposed rule in the Federal
Register before the provisions of a rule
take effect. In addition, section 553(d) of
4 See GAO’s CRA FAQ at www.gao.gov/legal/
other-legal-work/congressional-review-act.
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31610
Federal Register / Vol. 88, No. 96 / Thursday, May 18, 2023 / Rules and Regulations
the APA mandates a 30-day delay in
effective date after issuance or
publication of a substantive rule.
Sections 553(b)(3)(B) and 553(d)(3) of
the APA provide for exceptions from the
APA notice and comment, and delay in
effective date requirements. Section
553(b)(3)(B) of the APA authorizes an
agency to dispense with normal notice
and comment rulemaking procedures
for good cause if the agency makes a
finding that the notice and comment
process is impracticable, unnecessary,
or contrary to the public interest, and
includes a statement of the finding and
the reasons for it in the rule. Similarly,
section 553(d)(3) of the APA allows the
agency to avoid the 30-day delay in
effective date where good cause is found
and the agency includes in the rule a
statement of the finding and the reasons
for it.
The Department is publishing the
change of the operational date without
advance notice or an opportunity for
comment because it falls under the
‘‘good cause’’ exemption of the
Administrative Procedure Act, 5 U.S.C.
553(b)(3)(B). Undertaking notice and
comment procedures to incorporate the
corrections in this document would be
contrary to the public interest because it
is in the public interest to timely
provide a final rule that accurately
reflects changes to the annual return/
report forms, instructions, and
regulations that are applicable to annual
return/reports for plan years beginning
on or after January 1, 2023. Further,
such procedures would be unnecessary
because the Department is not making
substantive revisions to the Final Rule,
but rather, it is changing the operational
date by 36 days from April 25, 2023, to
May 31, 2023, to reflect the CRA
requirement that the effective date be no
earlier than 60 days from receipt of the
rule by the Congress. The Department,
accordingly, finds good cause under 5
U.S.C. 553(b)(3)(B) to waive public
comment. For the same reasons, the
Department similarly finds good cause
under 5 U.S.C. 555(d)(3) to avoid the 30day delay in effective date after issuance
of a substantive rule.5
lotter on DSK11XQN23PROD with RULES1
List of Subjects in 29 CFR Part 2520
Accounting, Employee benefit plans,
Freedom of information, Pensions,
Public assistance programs, Reporting
and recordkeeping requirements.
5 The Department is not making a ‘‘good cause’’
finding for fixing the typographical error in the
paragraph lettering in 29 CFR 2520.103–14 because
it does not impose any new or substantive
requirement subject to the APA notice and
comment or effective date provisions.
VerDate Sep<11>2014
16:21 May 17, 2023
Jkt 259001
For the reasons discussed in the
preamble, 29 CFR part 2520 is amended
as follows:
PART 2520—RULES AND
REGULATIONS FOR REPORTING AND
DISCLOSURE
1. The authority citation for part 2520
continues 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.
§ 2520.103–14
[Amended]
2. In § 2520.103–14, redesignate
paragraph (d) as paragraph (c).
■
Signed at Washington, DC, this 26th day of
April, 2023.
Lisa M. Gomez,
Assistant Secretary, Employee Benefits
Security Administration, U.S. Department of
Labor.
[FR Doc. 2023–09227 Filed 5–17–23; 8:45 am]
BILLING CODE 4510–29–P
DEPARTMENT OF THE TREASURY
Office of Foreign Assets Control
31 CFR Part 558
South Sudan Sanctions Regulations
Office of Foreign Assets
Control, Treasury.
ACTION: Final rule.
AGENCY:
The Department of the
Treasury’s Office of Foreign Assets
Control (OFAC) is adopting a final rule
amending the South Sudan Sanctions
Regulations to further implement an
April 3, 2014 South Sudan-related
Executive order and replacing the South
Sudan Regulations that were published
in abbreviated form on July 1, 2014 with
a more comprehensive set of regulations
that includes additional interpretive and
definitional guidance, general licenses,
and other regulatory provisions that will
provide further guidance to the public.
DATES: This rule is effective May 18,
2023.
FOR FURTHER INFORMATION CONTACT:
OFAC: Assistant Director for Licensing,
202–622–2480; Assistant Director for
SUMMARY:
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Frm 00008
Fmt 4700
Sfmt 4700
Regulatory Affairs, 202–622–4855; or
Assistant Director for Sanctions
Compliance & Evaluation, 202–622–
2490.
SUPPLEMENTARY INFORMATION:
Electronic Availability
This document and additional
information concerning OFAC are
available on OFAC’s website:
www.treas.gov/ofac.
Background
On July 1, 2014, OFAC issued the
South Sudan Sanctions Regulations, 31
CFR part 558 (79 FR 37190, July 1, 2014)
(the ‘‘Regulations’’), to implement
Executive Order (E.O.) 13664 of April 3,
2014, ‘‘Blocking Property of Certain
Persons With Respect to South Sudan’’
(79 FR 19283, April 7, 2014), pursuant
to authorities delegated to the Secretary
of the Treasury in E.O. 13664. The
Regulations were initially issued in
abbreviated form for the purpose of
providing immediate guidance to the
public. OFAC is revising the
Regulations to further implement E.O.
13664. OFAC is amending and reissuing
the Regulations as a more
comprehensive set of regulations that
includes additional interpretive
guidance and definitions, general
licenses, and other regulatory provisions
that will provide further guidance to the
public. Due to the number of regulatory
sections being updated or added, OFAC
is reissuing the Regulations in their
entirety.
On April 3, 2014, the President,
invoking the authority of, inter alia, the
International Emergency Economic
Powers Act (50 U.S.C. 1701 et seq.)
(IEEPA), issued E.O. 13664. In E.O.
13664, the President found that the
situation in and in relation to South
Sudan, which has been marked by
activities that threaten the peace,
security, or stability of South Sudan and
the surrounding region, including
widespread violence and atrocities,
human rights abuses, recruitment and
use of child soldiers, attacks on
peacekeepers, and obstruction of
humanitarian operations, poses an
unusual and extraordinary threat to the
national security and foreign policy of
the United States and declared a
national emergency to deal with that
threat.
Section 1(a) of E.O. 13664 blocks,
with certain exceptions, all property
and interests in property that are in the
United States, that come within the
United States, or that are or come within
the possession or control of any U.S.
person of: any person determined by the
Secretary of the Treasury, in
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]]>Agencies
[Federal Register Volume 88, Number 96 (Thursday, May 18, 2023)]
[Rules and Regulations]
[Pages 31608-31610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09227]
=======================================================================
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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: Final rule; technical correction; change to operational date.
-----------------------------------------------------------------------
SUMMARY: On February 24, 2023, the Employee Benefits Security
Administration for the U.S. Department of Labor (the Department or DOL)
published a final rule on annual reporting requirements under Title I
of the Employee Retirement Income Security Act of 1974, as amended
(ERISA). This document contains two technical changes to the
regulations: it changes the operational date of the final
[[Page 31609]]
rule amendments to the regulations to address the Congressional Review
Act (CRA) requirement under which a major rule cannot be effective
until 60 days after publication in the Federal Register or receipt by
Congress, whichever is later. The other corrects a typographical error
in the lettering of a paragraph in the regulations.
DATES: This final rule is effective May 31, 2023. The operational date
of the amendments published at 88 FR 11793 is changed from April 25,
2023, to May 31, 2023.
FOR FURTHER INFORMATION CONTACT: Janet Song, Florence Novellino 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).
SUPPLEMENTARY INFORMATION:
A. Background
On February 24, 2023, the Department of Labor (DOL or Department),
the Internal Revenue Service (IRS) and the Pension Benefit Guaranty
Corporation (PBGC) published Federal Register notices that announced
changes 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. For DOL, the final rule included a Notice of Final Forms
Revisions (Final Forms Revisions) jointly issued by the DOL, IRS and
PBGC, and a DOL-only Final Rule (Final Rule) that made corresponding
changes to the DOL annual reporting regulations under Title I of
ERISA.\1\
---------------------------------------------------------------------------
\1\ See Notice of Final Forms Revisions at 88 FR 11984 and Final
Rule at 88 FR 11793. The DOL, IRS, PBGC treat the Form 5500 annual
return/report as an ``information collection'' subject to the
Paperwork Reduction Act (PRA), but, due to the statutory and
regulatory provisions in Title I of ERISA governing annual reporting
by employee benefit plans, DOL changes to the forms and instructions
generally are rules under the Administrative Procedure Act (APA).
Sometimes changes in the forms and instructions do not require
changes to the DOL's underlying reporting regulations. In those
cases, one Federal Register notice is used as both the PRA notice
and the APA rulemaking document. See, e.g., www.federalregister.gov/documents/2022/05/23/2022-10658/annual-information-returnreports.
When changes to the forms and schedules require amendments to DOL's
annual reporting regulations (as they did here with the addition of
new schedules and a new reporting option), there is a tri-agency
notice with IRS and PBGC that includes the PRA sections and DOL
publishes a separate notice with the regulatory amendments and the
APA rulemaking components (e.g., regulatory impact analysis and CRA
classification). The Final Forms Revisions and Final Rule include
cross-references that are intended to communicate the connectedness
of the notices as a final rule.
---------------------------------------------------------------------------
Pursuant to the Congressional Review Act (CRA), OMB designated the
final rule as a ``major rule,'' as defined by 5 U.S.C. 804(2).\2\ The
changes to the annual return/report forms, instructions, and
regulations are applicable to annual return/reports for plan years
beginning on or after January 1, 2023, (see 88 FR 11984). Annual
return/reports generally are due to be filed beginning seven months
after the end of the applicable plan year (e.g., July 31, 2024, for
2023 annual return/reports for calendar year plans). The Final Rule had
a stated effective date of April 25, 2023, (see 88 FR 11793).
---------------------------------------------------------------------------
\2\ See 88 FR at 11797.
---------------------------------------------------------------------------
The Final Rule included additions to the ERISA annual reporting
regulations to implement the directive to the Secretary of Labor in
section 202 of the Setting Every Community Up for Retirement
Enhancement Act of 2019, commonly known as the SECURE Act, to jointly
with the Secretary of the Treasury provide for a single, consolidated
Form 5500 filing option that would satisfy the annual reporting
obligations for the defined contribution pension plans participating in
a Defined Contribution Group (DCG) reporting arrangement. The Final
Rule included newly added regulations at 29 CFR 2520.103-14 and
2520.104-51 setting forth requirements applicable to the DCG reporting
arrangement, the participating plans, and the content of the
consolidated Form 5500 filing.
B. CRA Date
The CRA requires that before a final rule can take effect it must
be submitted to the Senate and the House of Representatives and to the
Government Accountability Office (GAO), along with a concise general
statement of the rule and its effective date.\3\ Under the CRA, as
pertinent here, the effective date of a major rule (which corresponds
to an operational date in a Federal Register rule document) must be no
earlier than ``the later of the date occurring 60 days after the date
on which . . . the Congress received the [required] report . . . or . .
. the rule is published in the Federal Register . . . .'' As noted
above, the Final Rule and Final Forms Revisions were designated as a
major rule for DOL and were published in the Federal Register on
February 24, 2023. Although the report to GAO was delivered via the GAO
electronic process for CRA submissions \4\ on February 24, 2023, the
Congressional Record reflects that the House received the final rule on
February 28, 2023, 169 Cong. Rec. H1111 (daily ed. Mar. 3, 2023), and
the Senate on March 6, 2023, 169 Cong. Rec. S858 (daily ed. March 21,
2023). As noted above, the Final Rule's notice at 88 FR 11793 published
on February 24, 2023, in the Federal Register, has a stated effective
date of April 25, 2023 (which means that the Federal Register rule's
operational date was also April 25, 2023). Therefore, based on the
dates of House and Senate receipt, that stated CRA effective date is
earlier than 60 days after the receipt by Congress of the published
final rule. In light of the fact that the April 25 effective date has
passed, this final rule changes the operational date of April 25, 2023
to May 31, 2023, a date that is later than 60 days after receipt of the
published rule by Congress.
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\3\ See 5 U.S.C. 801-808. Under the Congressional Review Act
(CRA) two types of rules, major and nonmajor, must be submitted to
both Houses of Congress and GAO before either can take effect. CRA
defines a ``major'' rule as one which has resulted in or is likely
to result in (1) an annual effect on the economy of $100 million or
more; (2) a major increase in costs or prices for consumers,
individual industries, government agencies, or geographic regions;
or (3) significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of U.S.-
based enterprises to compete with foreign-based enterprises in
domestic and export markets.
\4\ See GAO's CRA FAQ at www.gao.gov/legal/other-legal-work/congressional-review-act.
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C. 29 CFR 2520.103-14 Paragraph Lettering
The Final Rule added 29 CFR 2520.103-14 as a new annual reporting
regulation that sets forth requirements for the consolidated annual
report for a DCG reporting arrangement. The preamble of the Final Rule
stated that paragraph (c) of Sec. 2520.103-14 provides that DCG
reporting arrangements must comply with the electronic filing
requirements that apply to all plan filers and direct filing entities,
including the requirement 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 published regulatory text, however, omitted
paragraph (c) and designated the paragraph as paragraph (d). The
Department is correcting the paragraph lettering to designate the
paragraph as paragraph (c).
D. Good Cause Findings Under 5 U.S.C. 553(b)(3)(B) and 553(d)(3)
Under 5 U.S.C. 553(b) of the Administrative Procedure Act (APA), an
agency is required to publish a notice of the proposed rule in the
Federal Register before the provisions of a rule take effect. In
addition, section 553(d) of
[[Page 31610]]
the APA mandates a 30-day delay in effective date after issuance or
publication of a substantive rule. Sections 553(b)(3)(B) and 553(d)(3)
of the APA provide for exceptions from the APA notice and comment, and
delay in effective date requirements. Section 553(b)(3)(B) of the APA
authorizes an agency to dispense with normal notice and comment
rulemaking procedures for good cause if the agency makes a finding that
the notice and comment process is impracticable, unnecessary, or
contrary to the public interest, and includes a statement of the
finding and the reasons for it in the rule. Similarly, section
553(d)(3) of the APA allows the agency to avoid the 30-day delay in
effective date where good cause is found and the agency includes in the
rule a statement of the finding and the reasons for it.
The Department is publishing the change of the operational date
without advance notice or an opportunity for comment because it falls
under the ``good cause'' exemption of the Administrative Procedure Act,
5 U.S.C. 553(b)(3)(B). Undertaking notice and comment procedures to
incorporate the corrections in this document would be contrary to the
public interest because it is in the public interest to timely provide
a final rule that accurately reflects changes to the annual return/
report forms, instructions, and regulations that are applicable to
annual return/reports for plan years beginning on or after January 1,
2023. Further, such procedures would be unnecessary because the
Department is not making substantive revisions to the Final Rule, but
rather, it is changing the operational date by 36 days from April 25,
2023, to May 31, 2023, to reflect the CRA requirement that the
effective date be no earlier than 60 days from receipt of the rule by
the Congress. The Department, accordingly, finds good cause under 5
U.S.C. 553(b)(3)(B) to waive public comment. For the same reasons, the
Department similarly finds good cause under 5 U.S.C. 555(d)(3) to avoid
the 30-day delay in effective date after issuance of a substantive
rule.\5\
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\5\ The Department is not making a ``good cause'' finding for
fixing the typographical error in the paragraph lettering in 29 CFR
2520.103-14 because it does not impose any new or substantive
requirement subject to the APA notice and comment or effective date
provisions.
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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
amended as follows:
PART 2520--RULES AND REGULATIONS FOR REPORTING AND DISCLOSURE
0
1. The authority citation for part 2520 continues 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.
Sec. 2520.103-14 [Amended]
0
2. In Sec. 2520.103-14, redesignate paragraph (d) as paragraph (c).
Signed at Washington, DC, this 26th day of April, 2023.
Lisa M. Gomez,
Assistant Secretary, Employee Benefits Security Administration, U.S.
Department of Labor.
[FR Doc. 2023-09227 Filed 5-17-23; 8:45 am]
BILLING CODE 4510-29-P
