Federal Register / Vol. 79, No. 162 / Thursday, August 21, 2014 / Proposed Rules 49469 

hearing itself would include the 

presentation of testimony, crossexamination of witnesses, and the 

introduction of exhibits, by both parties 

(5 U.S.C. 556(d)). A hearing transcript 

would be created, and ultimately, OSHA 

would have the burden of proof (5 

U.S.C. 556(d)). At the conclusion of any 

hearing, participants in the hearing 

would have the opportunity to submit 

proposed findings, along with 

supporting reasons and any additional 

data, views, or argument, within a 

period of thirty days (29 CFR 1902.19 

and 1902.40(c)(6)). 

Assuming Arizona does not waive the 

tentative decision, the Assistant 

Secretary will issue a tentative decision, 

on the basis of the whole record, either 

approving or disapproving the state’s 

statute (29 CFR 1902.21). This tentative 

decision will include a statement of the 

findings and conclusions that form the 

basis of this decision and it will be 

published in the Federal Register (29 

CFR 1902.21). Interested persons 

participating in the hearing would then 

have the opportunity to file exceptions, 

and objections to those exceptions. Any 

exceptions must be filed within thirty 

days of the tentative decision, and the 

objections within a period of time set 

forth in the tentative decision (29 CFR 

1902.22). Subsequently, the Assistant 

Secretary will issue a final decision 

ruling on each exception and objection 

and publish such decision in the 

Federal Register (29 CFR 1902.22–23). 

This publication of the final decision in 

the Federal Register may also include 

the Assistant Secretary’s decision on the 

continuation or revocation of the 

Arizona State Plan’s affirmative 18(e) 

determination, per 29 CFR 1902.52–53, 

or the two decisions may be issued on 

a staggered basis. If the Assistant 

Secretary’s decision is to revoke the 

affirmative 18(e) determination, the 

Federal Register notice containing that 

decision will also reflect the Assistant 

Secretary’s determination that 

concurrent Federal enforcement and 

standards authority will be reinstated 

within Arizona for a reasonable time 

until the Assistant Secretary has either 

withdrawn approval, or partial 

approval, of the plan pursuant to 29 

CFR 1955, or has determined that 

Arizona has once again met criteria for 

final approval under section 18(e), (29 

CFR 1902.52). 

Pursuant to the regulations cited 

above, modifying the Arizona State 

Plan’s status from final to initial 

approval would give OSHA concurrent 

enforcement authority in Arizona, 

including independent Federal or joint 

state and Federal inspections resulting 

in issuance of appropriate Federal 

citations. However, modifying Arizona’s 

final approval status would not 

immediately affect Arizona’s basic plan 

approval and would not eliminate 

Arizona’s legal authority to enforce state 

occupational safety and health 

standards. Pending a final decision in 

the proceeding instituted today, OSHA 

will continue to exercise Federal 

authority over safety and health issues 

excluded from the scope of coverage of 

the State Plan; monitoring inspections 

including accompanied visits; and other 

Federal authority not affected by the 

June 20, 1985 final approval decision. 

Authority and Signature 

David Michaels, Ph.D., MPH, 

Assistant Secretary of Labor for 

Occupational Safety and Health, U.S. 

Department of Labor, 200 Constitution 

Avenue NW., Washington, DC 20210 

authorized the preparation of this 

notice. OSHA is issuing this notice 

under the authority specified by Section 

18 of the Occupational Safety and 

Health Act of 1970 (29 U.S.C. 667), 

Secretary of Labor’s Order No. 1–2012 

(77 FR 3912), and 29 CFR parts 1902, 

and 1953. 

Signed at Washington, DC, on August 13, 

2014. 

David Michaels, 

Assistant Secretary of Labor for Occupational 

Safety and Health. 

[FR Doc. 2014–19781 Filed 8–20–14; 8:45 am] 

BILLING CODE 4510–26–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

29 CFR Parts 2520 and 2550 

RIN 1210–AB59 

Request for Information Regarding 

Standards for Brokerage Windows in 

Participant-Directed Individual 

Account Plans 

AGENCY: Employee Benefits Security 

Administration, Department of Labor. 

ACTION: Request for information. 

SUMMARY: The Employee Benefits 

Security Administration of the U.S. 

Department of Labor (the Department) is 

publishing this Notice as part of its 

review of the use of brokerage windows 

(including self-directed brokerage 

accounts or similar arrangements) in 

participant-directed individual account 

retirement plans covered by the 

Employee Retirement Income Security 

Act of 1974 (ERISA). Some plans offer 

participants access to brokerage 

windows in addition to, or in place of, 

specific investment options selected by 

the plans’ fiduciaries. Through these 

arrangements, plan participants may be 

able to choose among the full range of 

investment options available in the 

investment marketplace. The Request 

for Information contained in this Notice 

will assist the Department in 

determining whether, and to what 

extent, regulatory standards or other 

guidance concerning the use of 

brokerage windows by plans are 

necessary to protect participants’ 

retirement savings. It also will assist the 

Department in preparing any analyses 

that it may need to perform pursuant to 

Executive Order 12866, the Paperwork 

Reduction Act, and the Regulatory 

Flexibility Act. 

DATES: Comments must be submitted on 

or before November 19, 2014. 

ADDRESSES: You may submit written 

comments to any of the addresses 

specified below. 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Email: e-ORI@dol.gov. Include RIN 

1210–AB59 (Brokerage Windows RFI) in 

the subject line of the message. 

• Mail: Office of Regulations and 

Interpretations, Employee Benefits 

Security Administration, Room N–5655, 

U.S. Department of Labor, 200 

Constitution Avenue NW., Washington, 

DC 20210, Attention: ‘‘Brokerage 

Windows RFI.’’ 

All submissions received must 

include the agency name and Regulation 

Identifier Number (RIN) for this 

rulemaking. Comments received will be 

posted without change to http://

www.regulations.gov and http://

www.dol.gov/ebsa, and made available 

for public inspection at the Public 

Disclosure Room, N–1513, Employee 

Benefits Security Administration, 200 

Constitution Avenue NW., Washington, 

DC 20210, including any personal 

information provided. Do not include 

any personally identifiable information 

(such as name, address, or other contact 

information) or confidential business 

information that you do not want 

publicly disclosed. Comments posted on 

the Internet can be retrieved by most 

Internet search engines. Comments may 

be submitted anonymously. Persons 

submitting comments electronically are 

encouraged not to submit paper copies. 

All comments will be made available to 

the public. 

FOR FURTHER INFORMATION CONTACT: 

Kristen Zarenko, Office of Regulations 

and Interpretations, Employee Benefits 

Security Administration, (202) 693– 

8500. This is not a toll-free number. 

SUPPLEMENTARY INFORMATION: 

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49470 Federal Register / Vol. 79, No. 162 / Thursday, August 21, 2014 / Proposed Rules 

1 75 FR 64910 (Oct. 20, 2010), codified at 29 CFR 

2550.404a–5, and including conforming changes to 

the Department’s ‘‘404(c) regulation’’ relating to 

plans that allow participants to direct the 

investment of their individual accounts, at 29 CFR 

2550.404c–1. 

2The regulation defines a ‘‘designated investment 

alternative’’ to mean: ‘‘[A]ny investment alternative 

designated by the plan into which participants and 

beneficiaries may direct the investment of assets 

held in, or contributed to, their individual accounts. 

The term ‘‘designated investment alternative’’ shall 

not include ‘brokerage windows,’ ‘self-directed 

brokerage accounts,’ or similar plan arrangements 

that enable participants and beneficiaries to select 

investments beyond those designated by the plan.’’ 

29 CFR 2550.404a–5(h)(4) (emphasis added). 

3 29 CFR 2550.404a–5(c)(1)(i)(F). 

4 29 CFR 2550.404a–5(c)(3)(ii)(A). 

5http://www.dol.gov/ebsa/regs/fab2012-2R.html. 

6The original version of the FAB, which was 

rescinded and replaced by FAB 2012–02R, included 

Question 30, which some viewed as raising the 

possibility that plan fiduciaries could be 

responsible under ERISA for the underlying 

investments into which participants invest through 

a brokerage window. Further, some plan sponsors 

and service providers stated that the Department 

should not have issued Question 30 without prior 

notice and opportunity for public comment. 

Although the Department disagreed, it withdrew 

the original FAB. The revised FAB replaced 

Question 30 with Question 39, which is described 

in this Notice. 

A. Background 

Retirement plans that allow 

participants to choose investments for 

their individual accounts typically offer 

a limited set of specific investment 

options, which are selected and 

monitored by a plan fiduciary. Some 

plans also offer brokerage windows, 

which enable participants to select 

investment options beyond those 

specifically designated by the plan 

fiduciary. In some cases, the brokerage 

window may be offered in place of any 

designated investment options. The use 

of brokerage windows and similar 

arrangements by participant-directed 

individual account retirement plans 

(such as 401(k) plans) raises important 

issues concerning ERISA’s reporting and 

disclosure requirements, as well as 

ERISA’s fiduciary standards. 

The Department addressed disclosure 

requirements for brokerage windows in 

a regulation requiring plan 

administrators to disclose certain plan 

and investment-related information to 

participants and beneficiaries in 

participant-directed individual account 

plans (the ‘‘participant-level disclosure 

regulation’’).1 This regulation was 

intended to ensure that all participants 

and beneficiaries in such plans have the 

information they need to make informed 

decisions about the management of their 

individual accounts and the investment 

of their retirement savings. To that end, 

the regulation requires that, at least 

annually, participants and beneficiaries 

are furnished a comparative chart (or 

similar format) that contains 

information about the plan’s 

‘‘designated investment alternatives.’’ 

Plan administrators must, for example, 

furnish fee, historical performance, and 

comparative benchmark information for 

each designated investment alternative. 

The regulation expressly provides that 

brokerage windows are not ‘‘designated 

investment alternatives.’’ 2 As a result, 

plan administrators are not required to 

disclose the detailed performance, fee, 

and other investment-related 

information required with respect to 

‘‘designated investment alternatives.’’ 

Instead, plan administrators must 

provide ‘‘a description of any ‘brokerage 

windows,’ ‘self-directed brokerage 

accounts,’ or similar plan arrangements 

that enable participants and 

beneficiaries to select investments 

beyond those designated by the plan.’’ 3

In addition, the plan administrator must 

provide an explanation of any fees and 

expenses that may be charged against an 

individual account, on an individual, 

rather than on a plan-wide, basis, in 

connection with the arrangement. 

Finally, participants must be furnished 

a statement of the dollar amount of the 

fees and expenses charged to their 

accounts in connection with the 

arrangement during the previous 

quarter.4

Following publication of the 

participant-level disclosure regulation, 

plan sponsors and administrators raised 

a number of questions about the 

regulation, including how it applied to 

brokerage windows. These questions 

concerned both the required disclosures 

for brokerage windows as well as other 

fiduciary obligations that may arise 

when a plan offers a brokerage window. 

In response, the Department provided a 

series of ‘‘frequently asked questions’’ 

about the participant-level disclosure 

regulation. These questions and answers 

were published in Field Assistance 

Bulletin 2012–02R (FAB).5 FAB 

Question 13 describes the information 

about brokerage windows that must be 

furnished to participants and 

beneficiaries in order to satisfy section 

(c)(1)(i)(F) of the regulation, which 

requires a ‘‘description’’ of the 

brokerage window. The FAB lists 

specific information requirements, 

including instructions for participants 

on how to use the plan’s brokerage 

window, any restrictions on trading 

within the brokerage window, and fees 

and expenses that may be charged in 

connection with using the brokerage 

window (e.g., annual fees for using the 

brokerage window feature, brokerage or 

other commissions for trades within the 

brokerage window). 

FAB Question 39 6 clarifies that a 

brokerage window is not itself a 

‘‘designated investment alternative’’ 

under a plan. The Department also 

explains in Question 39 that a plan 

fiduciary’s failure to designate 

investment alternatives, for example, by 

offering no menu of core investment 

options other than a brokerage window 

to avoid the regulation’s investmentrelated disclosure requirements, may 

raise questions under ERISA’s section 

404 general statutory duties of prudence 

and loyalty. The Department issued this 

cautionary statement based, in part, on 

its observation that brokerage window 

features were being marketed by some to 

plan fiduciaries as a device to avoid 

making participant investment 

disclosures required under the 

regulation. 

The Department is aware that plan 

fiduciaries and service providers 

continue to have questions about their 

duties under ERISA’s general fiduciary 

standards apart from the specific 

requirements of the participant-level 

disclosure regulation. The Department 

is committed to engage in discussions 

with interested parties to help 

determine how best to assure 

compliance with these duties in a 

practical and cost-effective manner. 

This includes considering whether 

amendment of relevant regulatory 

provisions or interpretive guidance may 

be appropriate and necessary to ensure 

that participants and beneficiaries with 

access to brokerage windows are 

adequately protected. 

Since issuance of the FAB, the 

Department has reviewed literature, 

articles and other commentary available 

on the use of brokerage windows in 

401(k) plans. The Request for 

Information contained in this Notice 

(the RFI) is the Department’s next step 

in increasing its understanding of this 

topic. 

Some articles make the case that 

brokerage windows can be highly 

attractive and suitable plan features for 

sophisticated investors. These 

individuals assert that participants with 

a more advanced understanding of the 

investment marketplace, including the 

various costs and risks associated with 

investing in different types and classes 

of securities, may benefit from brokerage 

windows and the ability to create a 

better customized, more diverse 

portfolio. Brokerage windows may, for 

example, provide access to a specialized 

asset class or classes not available 

through the plan’s core designated 

investment alternatives. Sophisticated 

investors may be less likely to be 

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overwhelmed by a large number of 

investment options and may benefit 

from the flexibility that brokerage 

windows offer. 

Some articles make the case that 

brokerage windows actually benefit 

rank-and-file participants by indirectly 

limiting the field. These individuals 

assert that many plans over time have 

increased the number of designated 

investment alternatives they offer in 

response to demands from company 

owner-employees, senior executives, 

and other potentially sophisticated 

employee-investors for access to more 

diverse investment opportunities. This 

results in some plans having a very large 

number of designated investment 

alternatives, which may confuse less 

knowledgeable participants. Making a 

brokerage window available to the more 

demanding employees enables plans to 

offer a more manageable number of 

designated investment alternatives to 

rank and file employees who, according 

to those proponents of brokerage 

windows, have little or no interest in 

investment opportunities beyond a basic 

set of diversified options. 

Other articles, however, counter that 

brokerage windows may present undue 

risks for many retirement plan 

participants, because plan fiduciaries do 

not engage in a deliberative process to 

affirmatively review and select each of 

the investment options available 

through brokerage windows. Thus, they 

say in the absence of a deliberative 

review and selection process by an 

ERISA fiduciary, participants may not 

have adequate or any protections against 

potentially costly or unsuitable 

investments made through the brokerage 

window. Opponents maintain, for 

example, that the same or similar 

investments often cost more when 

selected through a brokerage window as 

opposed to when they are designated by 

the plan. Brokerage window opponents 

maintain that plans have no bona fide 

method to restrict brokerage window 

access only to sophisticated 

participants, and that the use of dollar 

thresholds or gateways, for example, 

may discriminate in favor of highly 

compensated employees. Opponents 

further maintain that although it is 

permissible to do so, brokerage window 

operators rarely limit the investments 

they make available. Opponents also 

allege that in-plan investments often 

subsidize the administrative costs of 

participants who opt to use the 

brokerage window. 

B. Request for Information 

The purpose of this RFI generally is 

to increase the Department’s 

understanding of the prevalence and 

role of brokerage windows in 

participant-directed individual account 

plans covered by ERISA. In particular, 

the RFI will focus on why, under what 

circumstances, and how often these 

brokerage windows are offered and used 

in ERISA plans, and the legal and policy 

issues that relate to such usage. The 

Department wants to make sure that 

participants are not exposed to undue 

risks from brokerage windows and that 

plan fiduciaries properly understand the 

scope of their ongoing responsibilities 

with respect to brokerage windows. The 

information received in response to this 

RFI will assist the Department in 

determining whether, and to what 

extent, regulatory standards or 

safeguards, or other guidance, are 

necessary to protect participants’ 

retirement savings. The RFI contains a 

number of questions. Respondents need 

not answer every question, but should 

identify, by its number, each question 

addressed. Interested persons also are 

encouraged to address any other matters 

they believe to be germane to the 

general topic of this RFI. 

Defining ‘‘Brokerage Windows’’— 

Scope. The Department understands 

that a variety of different plan and 

investment arrangements may be 

encompassed by the terms ‘‘brokerage 

window,’’ ‘‘self-directed brokerage 

account,’’ and similar arrangements. For 

example, open mutual fund windows 

may permit participants to invest in 

hundreds or thousands of mutual funds. 

More limited mutual fund windows or 

‘‘supermarkets’’ may permit participants 

to invest in any mutual fund on one or 

more of a particular vendor’s platforms, 

but not necessarily every mutual fund 

on the market. Other brokerage accounts 

also offer participants access to a 

virtually unlimited number of 

individual stocks, exchange-traded 

funds, and other securities. 

1. What are the various brokerage 

window, self-directed brokerage 

account, and similar arrangements that 

are made available in 401(k) plans, and 

which one (or more) is the most 

common? What are the benefits and 

drawbacks of these various 

arrangements? 

2. If a more specific definition of a 

‘‘brokerage window’’ is provided, as a 

regulatory or interpretive matter, how 

should it be defined? 

3. Should the fiduciary, disclosure, or 

other standards that apply to brokerage 

windows (and which are raised in more 

detail below) vary depending on the 

type of arrangement, or perhaps the 

ultimate number of investment options 

available to participants (e.g., a mutual 

fund window that offers access to fifty 

mutual funds vs. an open brokerage 

structure that offers access to many 

thousands of stocks, mutual funds, and 

other securities) and, if so, how? 

Plan Investment Offerings—Brokerage 

Windows and Designated Investment 

Alternatives 

4. What are the characteristics of 

plans that offer brokerage windows? 

5. Is the number of plans offering 

brokerage windows increasing, 

decreasing, or remaining relatively 

constant? If the number is changing, 

why? 

6. What is a typical number of 

‘‘designated investment alternatives’’ 

offered by a 401(k) plan? Are plans 

increasing, decreasing, or holding 

constant the number of designated 

investment alternatives that they offer? 

If the number is changing, why? 

7. Is there any correlation between the 

trends observed in the preceding two 

questions, and if so, what is the 

correlation? 

8. At what point might the number of 

investment options available to plan 

participants warrant treating the options 

as a ‘‘brokerage window’’ of some 

variety, rather than as a menu of 

‘‘designated investment alternatives?’’ 

Does the detailed investment-related 

information required by the 

Department’s participant-level 

disclosure regulation for designated 

investment alternatives (vs. brokerage 

windows) affect the answer to this 

question and, if so, how? 

Participation in Brokerage Windows 

9. How many participants, or what 

proportion of participants, typically use 

their plan’s brokerage window? What 

proportion of a plan’s total assets 

typically is invested through the 

brokerage window? 

10. Do respondents have demographic 

data on these participants, either for a 

particular plan or more broadly? 

11. Of the participants that use their 

plan’s brokerage window, do these 

participants typically invest all of the 

assets in their plan account through the 

window, or some proportion of their 

assets? 

12. What types of restrictions, if any, 

are typically made on brokerage 

window participation (e.g., minimum 

account balances, minimum dollar 

amounts that may be transferred to a 

brokerage window, maximum 

percentage of account balance that may 

be invested through a brokerage 

window, etc.)? 

13. Is there evidence of good or poor 

decision-making and outcomes by those 

participants using brokerage windows? 

What types of evidence are available? 

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49472 Federal Register / Vol. 79, No. 162 / Thursday, August 21, 2014 / Proposed Rules 

14. What benefits accrue to 

participants that invest through 

brokerage windows? Do participants 

who do not invest through the brokerage 

window benefit from having a brokerage 

window option in their plan, and if so, 

how? 

Selecting and Monitoring Brokerage 

Windows and Service Providers 

15. How many vendors does a plan 

fiduciary research or contact, on 

average, when deciding whether to 

include a brokerage window feature? 

How do vendors typically market 

brokerage windows to their existing or 

potential plan clients? 

16. Do plan recordkeepers typically 

require the use of their own or affiliated 

brokerage services, or are plan 

fiduciaries able to shop for brokerage 

windows provided by multiple vendors? 

Are there ways in which brokerage 

window providers favor or encourage 

investment in proprietary funds or 

products through brokerage windows? 

17. What factors do plan fiduciaries 

consider and what challenges, if any, do 

they face when deciding whether to 

include a brokerage window and who 

should provide the window? 

18. What are the most common 

reasons for adding a brokerage window 

feature (e.g., flexibility and increased 

investment options for participants, to 

facilitate the ability of participants to 

work with an adviser or a managed 

account provider, etc.)? What role, if 

any, do concerns about fiduciary 

responsibility or disclosure obligations 

play in deciding whether to add a 

brokerage window? 

19. When a plan fiduciary selects a 

brokerage window feature for a plan, 

does the plan fiduciary typically enter 

into a contract for this service, on behalf 

of the plan? If so, who are the parties to 

the contract? If not, why not? 

20. Do plan participants themselves 

commonly contract with the vendor 

when they choose to participate in the 

brokerage window (either in lieu of, or 

in addition to, a contract with a plan 

official) and, if so, what role, if any, 

does a plan fiduciary play in this 

process? 

21. What role, if any, do plan 

fiduciaries play in the selection of 

brokers, advisers, or other service 

providers to a brokerage window? How 

do plan fiduciaries monitor the 

performance of these service providers 

if at all? 

Fiduciary Access to Information About 

Brokerage Window Investments 

22. How do plan fiduciaries monitor 

investments made through their plan’s 

brokerage window, if at all? For 

example, do plan fiduciaries have 

access to information about specific 

investments that are selected or asset 

class or allocation information? 

23. Do fiduciaries view this 

information as important to effectively 

monitoring the inclusion of a brokerage 

window feature in their plan? If 

applicable, how often do plan 

fiduciaries request and review such 

information? 

24. What, if any, technological or 

other challenges exist that may reduce 

the feasibility, or increase the cost, of 

compiling this type of information for 

plan fiduciaries? Can respondents 

quantify such costs? 

Brokerage Window Costs 

25. What are the most common costs 

associated with participation in a 

brokerage window (e.g., account fees, 

brokerage commissions, etc.), and what 

dollar amounts are typically charged? 

Are there costs to including a brokerage 

window that usually are borne by the 

plan sponsor or by the plan, rather than 

by individual participants who use the 

brokerage window? 

26. To what extent are brokerage 

windows effectively subsidized by plan 

participants other than those 

participating in the brokerage window? 

27. How do the costs of investing 

through a brokerage window typically 

compare to investing in a plan’s 

designated investment alternatives? 

How do the costs compare to investing 

outside of the plan, e.g., in an IRA? 

28. How significant of a factor to plan 

fiduciaries are these costs when 

deciding to add a brokerage window to 

their plan? How do plan fiduciaries 

monitor or oversee the fees and costs of 

a brokerage window, available 

investments, and related services? How 

much discretion does a plan fiduciary 

have in negotiating brokerage 

commissions and other costs that 

presumably cannot be controlled by 

participants? 

Disclosure Concerning Brokerage 

Windows and Underlying Investments 

29. Is the information required to be 

disclosed about brokerage windows by 

the Department’s participant-level 

disclosure regulation sufficient to 

protect plan participants? Is this 

required information more or less than 

plans disclosed prior to the effective 

date of the regulation? Does this 

information usually come from plan 

administrators or from a third party, 

such as plan service or investment 

providers? What additional information, 

if any, is or should be disclosed to 

participants? 

30. Is different or additional 

information disclosed to participants 

after they elect to participate in a 

brokerage window and, if so, what 

information? 

31. The Department has said that 

disclosures regarding brokerage 

windows or similar arrangements under 

the participant-level fee disclosure 

regulation must, at a minimum, provide 

sufficient information to enable 

participants and beneficiaries to 

understand how the brokerage window 

works (e.g., how and to whom to give 

investment instructions; account 

balance requirements, if any; 

restrictions or limitations on trading, if 

any; how the brokerage window differs 

from the plan’s designated investment 

alternatives) and who to contact with 

questions. See FAB 2012–02R at Q&A 

13. Do these disclosures regarding how 

the brokerage window differs from the 

plan’s designated investment 

alternatives typically include a 

description of the different risks and 

costs of investing through a brokerage 

window compared to investing in a 

designated investment alternative? Also, 

do the disclosures typically include a 

description of differences in fiduciary 

duties owed to participants investing 

through a brokerage window compared 

to investing in a designated investment 

alternative? 

32. In a recent report entitled, 401(k) 

PLANS: Improvements Can Be Made to 

Better Protect Participants in Managed 

Accounts, GAO–14–310 (June 2014), the 

United States Government 

Accountability Office (GAO) recognized 

that managed account or similar 

services could be available to 

participants through brokerage 

windows. GAO recommended that the 

Department, among other things, amend 

regulations under title I of ERISA to 

require plan sponsors who offer 

managed account services to provide 

participants with standardized 

performance and benchmarking 

information on managed accounts. For 

example, one GAO suggestion is that 

plan officials could be required to 

periodically furnish each managed 

account participant with the aggregate 

performance of participants’ managed 

account portfolios and returns for broadbased securities market indices and 

applicable customized benchmarks. To 

what extent is the GAO 

recommendation feasible and advisable 

for participants who access managed 

account services with or without a 

brokerage window? 

The Role of Advisers 

33. How often do plan fiduciaries 

engage advisers to assist with decisions 

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about whether, and what type of 

brokerage window to include in their 

plan? 

34. How often do plan participants 

use an adviser or a provider of managed 

account services to help them make 

investments through a plan brokerage 

window? 

35. Do plans generally make advisers 

or managed account providers available 

to participants for this purpose and, if 

so, do the advisers or managed account 

providers typically contract with the 

plan or with the participant? 

36. How often do plan participants 

independently select advisers or other 

providers to assist with their 

investments through the brokerage 

window? Are plan fiduciaries, 

recordkeepers, or other service 

providers generally aware of these 

arrangements? 

Fiduciary Duties 

In connection with the issuance of 

FAB 2012–02 and FAB 2012–02R, the 

Department became aware of the 

possibility that plan fiduciaries and 

service providers have questions 

regarding the nature and extent of 

ERISA’s fiduciary of duties under 

section 404(a) of ERISA in connection 

with brokerage windows in plans 

intended to be ‘‘ERISA 404(c) plans.’’ 

37. Do these questions indicate a need 

for guidance, regulatory or otherwise, on 

brokerage windows under ERISA’s 

fiduciary provisions? For instance, is 

there a need to clarify the extent of a 

fiduciary’s duties of prudence, loyalty, 

and diversification under section 404(a) 

of ERISA, both with respect to brokerage 

window itself, as a plan feature, and 

with respect to the investments through 

the window? If guidance is needed, 

please try to identify the precise 

circumstances in need of guidance. If no 

guidance is needed, please explain why 

not. 

Annual Reporting and Periodic Pension 

Benefit Statements 

38. The annual reporting 

requirements contain a special 

provision for plans with brokerage 

windows. Specifically, subject to certain 

exceptions, the Schedule H allows plans 

to report certain classes of investments 

made through a brokerage window as an 

aggregate amount under a catch-all 

‘‘other’’ category rather than by type of 

asset on the appropriate line item from 

the asset category, e.g., common stocks, 

mutual funds, employer securities, etc. 

Should this special provision be 

changed to require more detail and 

transparency regarding these 

investments? If so, what level of 

transparency is appropriate, taking into 

account current technology and the 

administrative burdens and costs of 

increased transparency? 

39. ERISA section 105 requires plans 

to furnish benefit statements at least 

quarterly in the case of participantdirected individual account plans. How 

do these benefit statements typically 

reflect investments made through 

brokerage windows? 

Signed at Washington, DC, this 7th day of 

August 2014. 

Phyllis C. Borzi, 

Assistant Secretary, Employee Benefits 

Security Administration, Department of 

Labor. 

[FR Doc. 2014–19832 Filed 8–20–14; 8:45 am] 

BILLING CODE 4510–29–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–RO1–OAR–2012–0848; A–1–FRL– 

9912–99–Region 1] 

Approval and Promulgation of Air 

Quality Implementation Plans; New 

Hampshire; Reasonably Available 

Control Technology for Nitrogen 

Oxides and Volatile Organic 

Compounds 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

State Implementation Plan (SIP) 

revisions submitted by the State of New 

Hampshire. These revisions contain an 

updated New Hampshire regulation 

establishing reasonably available control 

technology (RACT) for sources of 

nitrogen oxides (NOX), RACT orders for 

four facilities, and a request to withdraw 

a previously approved NOX RACT order 

from the SIP. The intended effect of this 

action is to propose approval of this 

updated regulation and four RACT 

orders into the New Hampshire SIP, and 

to propose to withdraw from the SIP a 

previously approved NOX RACT order. 

This action is being taken in accordance 

with the Clean Air Act. 

DATES: Written comments must be 

received on or before September 22, 

2014. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. RO1–OAR– 

2012–0848 by one of the following 

methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. E-Mail: arnold.anne@epa.gov. 

3. Fax: (617) 918–0047. 

4. Mail: ‘‘EPA–RO1–OAR–2012– 

0848,’’ Anne Arnold, U.S. 

Environmental Protection Agency, EPA 

New England Regional Office, 5 Post 

Office Square—Suite 100, (Mail code 

OEP05–2), Boston, MA 02109–3912. 

5. Hand Delivery or Courier. Deliver 

your comments to: Anne Arnold, 

Manager, Air Quality Planning Unit, 

Office of Ecosystem Protection, U.S. 

Environmental Protection Agency, EPA 

New England Regional Office, 5 Post 

Office Square—Suite 100, (Mail code 

OEP05–2), Boston, MA 02109–3912. 

Such deliveries are only accepted 

during the Regional Office’s normal 

hours of operation. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 a.m. to 

4:30 p.m., excluding legal holidays. 

Please see the direct final rule which 

is located in the Rules Section of this 

Federal Register for detailed 

instructions on how to submit 

comments. 

FOR FURTHER INFORMATION CONTACT: Bob 

McConnell, Air Quality Planning Unit, 

U.S. Environmental Protection Agency, 

EPA New England Regional Office, 5 

Post Office Square, Suite 100 (mail 

code: OEP05–2), Boston, MA 02109– 

3912, telephone number (617) 918– 

1046, fax number (617) 918–0046, email 

mcconnell.robert@epa.gov. 

SUPPLEMENTARY INFORMATION: In the 

Final Rules Section of this Federal 

Register, EPA is approving the State’s 

SIP submittal as a direct final rule 

without prior proposal because the 

Agency views this as a noncontroversial 

submittal and anticipates no adverse 

comments. A detailed rationale for the 

approval is set forth in the direct final 

rule. If no adverse comments are 

received in response to this action rule, 

no further activity is contemplated. If 

EPA receives adverse comments, the 

direct final rule will be withdrawn and 

all public comments received will be 

addressed in a subsequent final rule 

based on this proposed rule. EPA will 

not institute a second comment period. 

Any parties interested in commenting 

on this action should do so at this time. 

Please note that if EPA receives adverse 

comment on an amendment, paragraph, 

or section of this rule and if that 

provision may be severed from the 

remainder of the rule, EPA may adopt 

as final those provisions of the rule that 

are not the subject of an adverse 

comment. 

For additional information, see the 

direct final rule which is located in the 

Rules Section of this Federal Register. 

mstockstill on DSK4VPTVN1PROD with PROPOSALS