[Federal Register Volume 75, Number 217 (Wednesday, November 10, 2010)]
[Notices]
[Pages 69130-69133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28306]


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DEPARTMENT OF LABOR

Employee Benefits Security Administration


Proposed Extension of Information Collection Request Submitted 
for Public Comment; Prohibited Transaction Exemptions 81-8, 96-62, 77-
4, 98-54; Delinquent Filer Voluntary Compliance Program; Suspension of 
Benefits Regulation

AGENCY: Employee Benefits Security Administration, Department of Labor.

ACTION: Notice.

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SUMMARY: The Department of Labor (the Department), in accordance with 
the Paperwork Reduction Act of 1995 (PRA 95) (44 U.S.C. 3506(c)(2)(A)), 
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 that are described below. A copy of the ICRs 
may be obtained by contacting the office listed in the ADDRESSES 
section of this notice. ICRs also are available at reginfo.gov (http://www.reginfo.gov/public/do/PRAMain).

DATES: Written comments must be submitted to the office shown in the 
Addresses section on or before January 10, 2011.

ADDRESSES: G. Christopher Cosby, Department of Labor, Employee Benefits 
Security Administration, 200 Constitution Avenue, NW., Washington,

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DC 20210, (202) 693-8410, FAX (202) 693-4745 (these are not toll-free 
numbers).

SUPPLEMENTARY INFORMATION: 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 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 current burden 
estimates follows:
    Agency: Employee Benefits Security Administration, Department of 
Labor.
    Title: Class Exemption for Investment of Plan Assets in Certain 
Types of Short-Term Investments.
    Type of Review: Extension without change of a currently approved 
collection of information.
    OMB Number: 1210-0061.
    Affected Public: Business or other for-profit; Not-for-profit 
institutions.
    Respondents: 50,000.
    Responses: 250,000.
    Estimated Total Burden Hours: 41,700.
    Estimated Total Burden Cost (Operating and Maintenance): $102,500.
    Description: Prohibited Transaction Class Exemption 81-8 permits 
the investment of plan assets that involve the purchase or other 
acquisition, holding, sale, exchange or redemption by or on behalf of 
an employee benefit plan in certain types of short-term investments. 
These include investments in banker's acceptances, commercial paper, 
repurchase agreements, certificates of deposit, and bank securities. 
Absent the exemption, certain aspects of these transactions might be 
prohibited by section 406 and 407(a) of the Employee Retirement Income 
Security Act (ERISA).
    In order to ensure that the exemption is not abused, that the 
rights of participants and beneficiaries are protected, and that the 
conditions of the exemption have been satisfied, the Department has 
included in the exemption two basic disclosure requirements. Both 
affect only the portion of the exemption dealing with repurchase 
agreements. The first requirement calls for the repurchase agreements 
between the seller and the plan to be in writing. The second 
requirement obliges the seller of such repurchase agreements to agree 
to provide financial statements to the plan at the time of the sale and 
as future statements are issued. The seller must also represent, either 
in the repurchase agreement or prior to the negotiation of each 
repurchase agreement transaction, that there has been no material 
adverse change in the seller's financial condition since the date that 
the most recent financial statement was furnished which has not been 
disclosed to the plan fiduciary with whom the written agreement is 
made.
    Without the recording and disclosure requirements included in this 
ICR, participants and beneficiaries of a plan would not be protected in 
their investments, the Department would be unable to monitor a plan's 
activities for compliance, and plans would be at a disadvantage in 
assessing the value of certain short-term investment activities. The 
ICR is scheduled to expire on April 30, 2011.
    Agency: Employee Benefits Security Administration, Department of 
Labor.
    Title: Prohibited Transaction Class Exemption 96-62, Process for 
Expedited Approval of Exemption for Prohibited Transaction.
    Type of Review: Extension without change of a currently approved 
collection of information.
    OMB Number: 1210-0098.
    Affected Public: Business or other for-profit; Not-for-profit 
institutions.
    Respondents: 50.
    Responses: 50.
    Estimated Total Burden Hours: 62.
    Estimated Total Burden Cost (Operating and Maintenance): $67,375.
    Description: Section 408(a) of ERISA provides that the Secretary of 
Labor may grant exemptions from the prohibited transaction provisions 
of sections 406 and 407(a) of ERISA, and directs the Secretary to 
establish an exemption procedure with respect to such provisions. On 
July 31, 1996, the Department published Prohibited Transaction 
Exemption 96-62, which, pursuant to the exemption procedure set forth 
in 29 CFR 2570, subpart B, permits a plan to seek approval on an 
accelerated basis of otherwise prohibited transactions. A class 
exemption will only be granted on the conditions that the plan 
demonstrate to the Department that the transaction is substantially 
similar to those described in at least two prior individual exemptions 
granted by the Department and that it presents little, if any, 
opportunity for abuse or risk of loss to a plan's participants and 
beneficiaries. This ICR is intended to provide the Department with 
sufficient information to support a finding that the exemption meets 
the statutory standards of section 408(a) of ERISA, and to provide 
affected parties with the opportunity to comment on the proposed 
transaction, while at the same time reducing the regulatory burden 
associated with processing individual exemptions for transactions 
prohibited under ERISA. The ICR is scheduled to expire on April 30, 
2011.
    Agency: Employee Benefits Security Administration, Department of 
Labor.
    Title: Class Exemption 77-4 for Certain Transactions Between 
Investment Companies and Employee Benefit Plans.
    Type of Review: Extension without change of a currently approved 
collection of information.
    OMB Number: 1210-0049.
    Affected Public: Business or other for-profit; Not-for-profit 
institutions.
    Respondents: 900.
    Responses: 118,000.
    Estimated Total Burden Hours: 10,301.
    Estimated Total Burden Cost (Operating and Maintenance): $167,000.
    Description: Without the relief provided by this exemption, an 
open-end mutual fund would be unable to sell shares to, or purchase 
shares from, a plan when the fiduciary with respect to the plan is also 
the investment advisor for the mutual fund. As a result, plans would be 
compelled to liquidate their existing investments involving such 
transactions and to amend their plan documents to establish new 
investment structures and policies.
    In order to ensure that the exemption is not abused and that the 
rights of participants and beneficiaries are protected, the Department 
has included in the exemption three basic disclosure requirements. The 
first requires at the time of the purchase or sale of such mutual fund 
shares that the plan's independent fiduciary receive a copy of the 
current prospectus issued by the open-end mutual fund and a full and 
detailed written statement of the investment advisory fees charged to 
or paid by the plan and the open-end mutual fund to the investment 
advisor. The second requires that the independent fiduciary approve in 
writing such purchases and sales. The third requires that the 
independent fiduciary, once notified of changes in the fees, re-approve 
in writing the purchase and sale of mutual fund shares. The ICR is 
scheduled to expire on April 30, 2011.
    Agency: Employee Benefits Security Administration, Department of 
Labor.
    Title: PTE 98-54 Relating to Certain Employee Benefit Plan Foreign 
Exchange Transactions Executed Pursuant to Standing Instructions.
    Type of Review: Extension without change of a currently approved 
collection of information.

[[Page 69132]]

    OMB Number: 1210-0111.
    Affected Public: Business or other for-profit; Not-for-profit 
institutions.
    Respondents: 35.
    Responses: 8,400.
    Estimated Total Burden Hours: 4,200.
    Estimated Total Burden Cost (Operating and Maintenance): $0.
    Description: PTE 98-54 permits certain foreign exchange 
transactions between employee benefit plans and certain banks, broker-
dealers, and domestic affiliates thereof, which are parties in interest 
with respect to such plans, pursuant to standing instructions. In the 
absence of an exemption, foreign exchange transactions pursuant to 
standing instructions would be prohibited under circumstances where the 
bank or broker-dealer is a party in interest or disqualified person 
with respect to the plan under ERISA or the Internal Revenue Code.
    The class exemption has five basic information collection 
requirements. The first requires the bank or broker-dealer to maintain 
written policies and procedures for handling foreign exchange 
transactions for plans for which it is a party in interest, which 
policies and procedures ensure that the party acting for the bank or 
broker-dealer knows it is dealing with a plan. The second requires that 
the transactions are performed in accordance with a written 
authorization executed in advance by an independent fiduciary of the 
plan. The third requires that the bank or broker-dealer provides the 
authorizing fiduciary with a copy of its written policies and 
procedures for foreign exchange transactions involving income item 
conversions and de minimis purchase and sale transactions prior to the 
execution of a transaction. The fourth requires the bank or broker-
dealer to furnish the authorizing fiduciary a written confirmation 
statement with respect to each covered transaction within five days 
after execution. The fifth requires that the bank or broker-dealer 
maintains records necessary for plan fiduciaries, participants, the 
Department, and the Internal Revenue Service, to determine whether the 
conditions of the exemption are being met for a period of six years 
form the date of execution of a transaction.
    By requiring that records pertaining to the exempted transaction be 
maintained for six years, this ICR ensures that the exemption is not 
abused, the rights of the participants and beneficiaries are protected, 
and that compliance with the exemption's conditions can be confirmed. 
The exemption affects participants and beneficiaries of the plans that 
are involved in such transactions, as well as, certain banks, broker-
dealers, and domestic affiliates thereof. The ICR currently is 
scheduled to expire on April 30, 2011.
    Agency: Employee Benefits Security Administration, Department of 
Labor.
    Title: Delinquent Filer Voluntary Compliance Program.
    Type of Review: Extension without change of a currently approved 
collection of information.
    OMB Number: 1210-0089.
    Affected Public: Business or other for-profit; Not-for-profit 
institutions.
    Respondents: 15,000.
    Responses: 15,000.
    Estimated Total Burden Hours: 750.
    Estimated Total Burden Cost (Operating and Maintenance): $608,250.
    Description: The Secretary of Labor has the authority, under 
section 502(c)(2) of ERISA, to assess civil penalties of up to $1,000 a 
day against plan administrators who fail or refuse to file complete and 
timely annual reports (Form 5500 Series Annual Return/Reports) as 
required under section 101(b)(4) of ERISA-related regulations. Pursuant 
to 29 CFR 2560.502c-2 and 2570.60 et seq., EBSA has maintained a 
program for the assessment of civil penalties for noncompliance with 
the annual reporting requirements. Under this program, plan 
administrators filing annual reports after the date on which the report 
was required to be filed may be assessed $50 per day for each day an 
annual report is filed after the date on which the annual report(s) was 
required to be filed, without regard to any extensions for filing.
    Plan administrators who fail to file an annual report may be 
assessed a penalty of $300 per day, up to $30,000 per year, until a 
complete annual report is filed. Penalties are applicable to each 
annual report required to be filed under Title I of ERISA. The 
Department may, in its discretion, waive all or part of a civil penalty 
assessed under section 502(c)(2) upon a showing by the administrator 
that there was reasonable cause for the failure to file a complete and 
timely annual report.
    The Department has determined that the possible assessment of these 
civil penalties may deter certain delinquent filers from voluntarily 
complying with the annual reporting requirements under Title I of 
ERISA. In an effort to encourage annual reporting compliance, 
therefore, the Department implemented the Delinquent Filer Voluntary 
Compliance (DFVC) Program (the Program) on April 27, 1995 (60 FR 
20873). Under the Program, administrators otherwise subject to the 
assessment of higher civil penalties are permitted to pay reduced civil 
penalties for voluntarily complying with the annual reporting 
requirements under Title I of ERISA.
    This ICR covers the requirement of providing data necessary to 
identify the plan along with the penalty payment. This data is the 
means by which each penalty payment is associated with the appropriate 
plan. With respect to most pension plans and welfare plans, the 
requirement is satisfied by sending a photocopy of the delinquent Form 
5500 annual report that has been filed, along with the penalty payment.
    Under current regulations, apprenticeship and training plans may be 
exempted from the reporting and disclosure requirements of Part 1 of 
Title I, and certain pension plans maintained for highly compensated 
employees, commonly called ``top hat'' plans, may comply with these 
reporting and disclosure requirements by using an alternate method by 
filing a one-time identifying statement with the Department. The DFVC 
Program provides that apprenticeship and training plans and top hat 
plans may, in lieu of filing any past due annual reports and paying 
otherwise applicable civil penalties, complete and file specific 
portions of a Form 5500, file the identifying statements that were 
required to be filed, and pay a one-time penalty. The ICR currently is 
scheduled to expire on May 31, 2011.
    Agency: Employee Benefits Security Administration, Department of 
Labor.
    Title: Suspension of Pension Benefits Regulation Pursuant to 29 CFR 
2530.203-3.
    Type of Review: Extension without change of a currently approved 
collection of information.
    OMB Number: 1210-0048.
    Affected Public: Business or other for-profit; Not-for-profit 
institutions.
    Respondents: 47,614.
    Responses: 233,181.
    Estimated Total Burden Hours: 162,274.
    Estimated Total Burden Cost (Operating and Maintenance): $107,263.
    Description: Section 203(a)(3)(B) of ERISA governs the 
circumstances under which pension plans may suspend pension benefit 
payments to retirees that return to work or to participants that 
continue to work beyond normal retirement age. Furthermore, section 
203(a)(3)(B) of ERISA authorizes the Secretary to prescribe regulations 
necessary to carry out the provisions of this section.
    In this regard, the Department issued a regulation which describes 
the circumstances and conditions under which plans may suspend the 
pension benefits of retirees that return to work,

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or of participants that continue to work beyond normal retirement age 
(29 CFR 2530.203-3). In order for a plan to suspend benefits pursuant 
to the regulation, it must notify affected retirees or participants (by 
first class mail or personal delivery) during the first calendar month 
or payroll period in which the plan withholds payment, that benefits 
are suspended. This notice must include the specific reasons for such 
suspension, a general description of the plan provisions authorizing 
the suspension, a copy of the relevant plan provisions, and a statement 
indicating where the applicable regulations may be found (i.e., 29 CFR 
2530.203-3). In addition, the suspension notification must inform the 
retiree or participant of the plan's procedure for affording a review 
of the suspension of benefits. The ICR currently is scheduled to expire 
on May 31, 2011.

III. Focus of Comments

    The Department is particularly interested in comments that:
    <bullet> 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;
    <bullet> Evaluate the accuracy of the agency's estimate of the 
collections of information, including the validity of the methodology 
and assumptions used;
    <bullet> Enhance the quality, utility, and clarity of the 
information to be collected; and
    <bullet> 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 ICRs for OMB approval of the extension of the 
information collection; they will also become a matter of public 
record.

    Dated: November 3, 2010.
Joseph S. Piacentini,
Director, Office of Policy and Research, Employee Benefits Security 
Administration.
[FR Doc. 2010-28306 Filed 11-9-10; 8:45 am]
BILLING CODE 4510-29-P