9334 Federal Register / Vol. 75, No. 40 / Tuesday, March 2, 2010 / Rules and Regulations 

it is a rule of ‘‘particular applicability.’’ 

Therefore, it is not subject to the 

congressional review requirements in 5 

U.S.C. 801–808. 

List of Subjects in 21 CFR Part 522 

Animal drugs. 

■ Therefore, under the Federal Food, 

Drug, and Cosmetic Act and under 

authority delegated to the Commissioner 

of Food and Drugs and redelegated to 

the Center for Veterinary Medicine, 21 

CFR part 522 is amended as follows: 

PART 522—IMPLANTATION OR 

INJECTABLE DOSAGE FORM NEW 

ANIMAL DRUGS 

■ 1. The authority citation for 21 CFR 

part 522 continues to read as follows: 

Authority: 21 U.S.C. 360b. 

■ 2. In § 522.2471, revise paragraphs 

(e)(1)(i), (e)(1)(ii), and (e)(1)(iii) to read 

as follows: 

§ 522.2471 Tilmicosin. 

* * * * * 

(e) * * * 

(1) * * * 

(i) Amount. 10 to 20 milligrams per 

kilograms (mg/kg) of body weight as a 

single subcutaneous injection. 

(ii) Indications for use. For the 

treatment of bovine respiratory disease 

(BRD) associated with Mannheimia 

haemolytica, Pasteurella multocida, and 

Histophilus somni. For the control of 

respiratory disease in cattle at high risk 

of developing BRD associated with M. 

haemolytica. 

(iii) Limitations. Do not use in female 

dairy cattle 20 months of age or older. 

Use of this antibiotic in this class of 

cattle may cause milk residues. Do not 

slaughter within 42 days of last 

treatment. 

* * * * * 

Dated: February 16, 2010. 

Steven D. Vaughn, 

Director, Office of New Animal Drug 

Evaluation, Center for Veterinary Medicine. 

[FR Doc. 2010–4206 Filed 3–1–10; 8:45 am] 

BILLING CODE 4160–01–S 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

21 CFR Part 558 

[Docket No. FDA–2010–N–0002] 

New Animal Drugs for Use in Animal 

Feeds; Chlortetracycline 

AGENCY: Food and Drug Administration, 

HHS. 

ACTION: Final rule. 

SUMMARY: The Food and Drug 

Administration (FDA) is amending the 

animal drug regulations to reflect 

approval of a supplemental new animal 

drug application (NADA) filed by ADM 

Alliance Nutrition, Inc. The 

supplemental NADA provides for use of 

a higher concentration chlortetracycline 

Type A medicated article for the 

manufacture of medicated feeds for 

livestock and poultry. 

DATES: This rule is effective March 2, 

2010. 

FOR FURTHER INFORMATION CONTACT: 

Cindy L. Burnsteel, Center for 

Veterinary Medicine (HFV–130), Food 

and Drug Administration, 7500 Standish 

Pl., Rockville, MD 20855, 240–276– 

8341, e-mail: 

cindy.burnsteel@fda.hhs.gov. 

SUPPLEMENTARY INFORMATION: ADM 

Alliance Nutrition, Inc., 1000 North 

30th St., Quincy, IL 62305–3115, filed a 

supplement to NADA 48–480 that 

provides for the use of CHLORATET 50 

(chlortetracycline), a Type A medicated 

article containing 50 grams of 

chlortetracycline per pound, for the 

manufacture of medicated feeds for 

livestock and poultry. The supplement 

provides for use of Type A medicated 

articles containing 90 or 100 grams of 

chlortetracycline per pound. The 

supplemental NADA is approved as of 

January 7, 2010, and the regulations are 

amended in 21 CFR 558.128 to reflect 

the approval. 

Approval of this supplemental NADA 

did not require review of additional 

safety or effectiveness data or 

information. Therefore, a freedom of 

information summary is not required. 

FDA has determined under 21 CFR 

25.33 that this action is of a type that 

does not individually or cumulatively 

have a significant effect on the human 

environment. Therefore, neither an 

environmental assessment nor an 

environmental impact statement is 

required. 

This rule does not meet the definition 

of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because 

it is a rule of ‘‘particular applicability.’’ 

Therefore, it is not subject to the 

congressional review requirements in 5 

U.S.C. 801–808. 

List of Subject in 21 CFR Part 558 

Animal drugs, animal feeds. 

■ Therefore, under the Federal Food, 

Drug, and Cosmetic Act and under 

authority delegated to the Commissioner 

of Food and Drugs and redelegated to 

the Center for Veterinary Medicine, 21 

CFR part 558 is amended as follows: 

PART 558—NEW ANIMAL DRUGS FOR 

USE IN ANIMAL FEEDS 

■ 1. The authority citation for 21 CFR 

part 558 continues to read as follows: 

Authority: 21 U.S.C. 360b, 371. 

■ 2. In § 558.128, revise paragraph (b)(2) 

to read as follows: 

§ 558.128 Chlortetracycline. 

* * * * * 

(b) * * * 

(2) No. 012286: 50, 90, or 100 grams 

per pound of Type A medicated article. 

* * * * * 

Dated: February 16, 2010. 

Steven D. Vaughn, 

Director, Office of New Animal Drug 

Evaluation, Center for Veterinary Medicine. 

[FR Doc. 2010–4205 Filed 3–1–10; 8:45 am] 

BILLING CODE 4160–01–S 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

29 CFR Part 2520 

RIN 1210–AB21 

Multiemployer Pension Plan 

Information Made Available on 

Request 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Final rule. 

SUMMARY: This document contains a 

final rule implementing section 101(k) 

of the Employee Retirement Income 

Security Act of 1974, as amended by the 

Pension Protection Act of 2006. Section 

101(k) requires the administrator of a 

multiemployer plan to provide copies of 

certain actuarial and financial 

documents about the plan to 

participants, beneficiaries, employee 

representatives and contributing 

employers upon request. The final rule 

affects plan administrators, participants 

and beneficiaries and contributing 

employers of multiemployer plans. 

DATES: This final rule is effective on 

April 1, 2010. 

FOR FURTHER INFORMATION CONTACT: June 

Solonsky or Stephanie L. Ward, Office 

of Regulations and Interpretations, 

Employee Benefits Security 

Administration, (202) 693–8500. This is 

not a toll-free number. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Section 101(k) of the Employee 

Retirement Income Security Act 

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Federal Register / Vol. 75, No. 40 / Tuesday, March 2, 2010 / Rules and Regulations 9335 

1Pub. L. 109–280, 120 Stat. 780. 

2On January 2, 2009, the Department published 

in the Federal Register a final rule, effective March 

3, 2009, that establishes procedures relating to the 

assessment of civil penalties by the Department 

under section 502(c)(4) of ERISA. See 74 FR 17. 

3 72 FR 52527. 

(ERISA), 29 U.S.C. 1021(k), added by 

section 502(a)(1) of the Pension 

Protection Act of 2006 (PPA),1 provides 

that the administrator of a 

multiemployer pension plan, upon 

written request, shall furnish copies of 

certain actuarial and financial 

documents to any plan participant, 

beneficiary, employee representative, or 

any employer that has an obligation to 

contribute to the plan. The documents 

that are required to be furnished are: (A) 

A copy of any periodic actuarial report 

(including sensitivity testing) received 

by the plan for any plan year which has 

been in the plan’s possession for at least 

30 days; (B) a copy of any quarterly, 

semi-annual, or annual financial report 

prepared for the plan by any plan 

investment manager or advisor or other 

fiduciary which has been in the plan’s 

possession for at least 30 days; and (C) 

a copy of any application filed with the 

Secretary of the Treasury requesting an 

extension under section 304 of the Act 

(or section 431(d) of the Internal 

Revenue Code of 1986) and the 

determination of such Secretary 

pursuant to such application. 

Section 502(a)(2) of the PPA amended 

section 502(c)(4) of ERISA to provide 

that the Secretary of Labor may assess 

a civil penalty of not more than $1,000 

a day for each violation of section 

101(k).2 Section 502(d) of the PPA 

provides that section 101(k) shall apply 

to plan years beginning after December 

31, 2007. 

On September 14, 2007, the 

Department published in the Federal 

Register a proposed rule under section 

101(k) of ERISA and invited interested 

parties to comment.3 The Department 

received four written comments on the 

proposal. Copies of these comments are 

posted on the Department’s Web site at 

http://www.dol.gov/ebsa. After careful 

consideration of the issues raised by the 

written comments, the Department is 

adopting the final rule contained herein. 

While the Department has made some 

clarifying changes to both the structure 

and provisions of the rule, the final rule, 

described below, is substantially the 

same as the proposal. 

B. Overview of Final Rule and 

Comments 

1. General § 2520.101–6(a) 

Paragraph (a) of the final rule, like the 

proposal, sets forth the general 

requirement under section 101(k) that 

the administrator of a multiemployer 

pension plan furnish copies of certain 

actuarial and financial documents. 

These documents must be furnished in 

accordance with paragraph (b) of the 

regulation. The specific documents 

required to be furnished are described 

in paragraph (c) of the final rule. A new 

paragraph (d) has been added to the 

final rule for purposes of consolidating 

and clarifying exceptions to and 

limitations on an administrator’s 

obligation to furnish requested 

documents. Paragraph (e) describes the 

persons entitled to request documents 

for purposes of section 101(k). 

2. Obligation To Furnish § 2520.101– 

6(b) 

Paragraph (b) of the final rule is 

substantially the same as the proposal. 

Paragraph (b)(1) requires that, except as 

provided in paragraph (d), requested 

documents must be furnished not later 

than 30 days after receipt of the written 

request. 

Paragraph (b)(2) of the final rule 

focuses on delivery and requires 

requested documents to be furnished in 

accordance with the delivery 

requirements of 29 CFR 2520.104b–1, 

including paragraph (c) relating to the 

use of electronic delivery. 

Paragraph (b)(3) of the proposal 

addressed the limitation on a requester’s 

ability to request the same document 

more than once in any 12-month period. 

As part of the consolidation mentioned 

above, this limitation now appears in 

paragraph (d)(1) of the final rule and is 

discussed in connection with that 

paragraph. 

Paragraph (b)(3) of the final rule 

addresses the ability of a plan 

administrator to impose reasonable 

charges to cover the cost of furnishing 

the requested documents. The PPA 

specifically authorized the imposition of 

reasonable charges for the furnishing of 

documents pursuant to section 101(k). 

For this purpose, the Department 

proposed (see paragraph (b)(4) of the 

proposal) that a reasonable charge may 

not exceed the lesser of the actual cost 

to the plan for the least expensive 

means of acceptable reproduction of the 

document, or 25 cents per page, plus the 

cost of mailing or otherwise delivering 

the requested document. This standard 

adopts the existing reasonable charge 

standard under 29 CFR 2520.104b–30 

but also permits the plan administrator 

to charge the requester the actual cost to 

the plan of mailing or delivering the 

requested document. One commenter 

suggested that the 25 cents per page 

portion of the reasonable charge 

standard should be lowered due to 

advances in reproduction technology. 

The commenter suggested a maximum 

of 10 cents per page for black and white 

reproductions. Although the 

Department recognizes that advances in 

document copying may reduce costs in 

many cases, the Department has not 

adopted this suggestion because it lacks 

sufficient information at this time to 

prescribe an alternative maximum 

charge. The Department notes, however, 

that under the rule as adopted plans 

may never charge more than the actual 

cost of the least expensive method of 

reproduction used by the plan. 

Therefore, as plans adopt more efficient, 

less costly reproduction methods, the 

amounts charged to participants, 

beneficiaries and others will be reduced 

accordingly. 

3. Documents To Be Furnished 

§ 2520.101–6(c) 

Paragraph (c) of the final rule, like the 

proposal, describes the documents that 

must be furnished pursuant to section 

101(k). 

Paragraph (c)(1)(i) of the proposal 

provided for the disclosure of any 

periodic actuarial report (including 

sensitivity testing) received by the plan 

for any plan year which has been in the 

plan’s possession for at least 30 days 

prior to the date of the written request. 

Two commenters requested clarification 

of this provision. One commenter 

requested that the final regulation limit 

disclosure under paragraph (c)(1)(i) to 

reports that actuaries produce at 

regularly scheduled, recurring intervals, 

such as reports in connection with 

annual valuations. The other 

commenter, however, was concerned 

that such a limitation could exclude 

relevant sensitivity testing not provided 

routinely or in regular cycles. In 

response to these comments, the 

Department has included language in 

the final regulation, at paragraph (c)(1), 

that limits and clarifies the disclosure 

obligations with respect to actuarial 

reports. 

As modified, paragraph (c)(1) 

provides that the term ‘‘periodic 

actuarial report’’ means any actuarial 

reports prepared by an actuary of the 

plan and received by the plan at 

regularly scheduled, recurring intervals. 

A plan administrator, therefore, would 

be required pursuant to this provision to 

disclose copies of any actuarial report 

prepared in connection with the annual 

valuation or pursuant to the 

requirements of section 305 of ERISA. 

The final regulation also makes clear 

that the term ‘‘periodic actuarial report’’ 

includes studies, tests (including 

sensitivity tests), documents, analyses 

or other information (whether or not 

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9336 Federal Register / Vol. 75, No. 40 / Tuesday, March 2, 2010 / Rules and Regulations 

called a ‘‘report’’) received by the plan 

from an actuary of the plan that depict 

alternative funding scenarios based on a 

range of alternative actuarial 

assumptions, whether or not received by 

the plan at regularly scheduled, 

recurring intervals. Thus, under this 

provision, a plan administrator would 

be required to disclose any sensitivity 

testing that the plan may request 

occasionally, such as in response to a 

certification of critical or endangered 

status. 

The limitation that only those 

periodic actuarial reports in the plan’s 

possession for at least 30 days are 

required to be disclosed is included in 

paragraph (d) of the final rule 

addressing limitations and exceptions. 

Paragraph (c)(1)(ii) of the proposal 

provided that a document subject to 

disclosure includes a copy of any 

quarterly, semi-annual, or annual 

financial report prepared for the plan by 

any plan investment manager or advisor 

(without regard to whether such advisor 

is a fiduciary within the meaning of 

section 3(21) of the Act) or other 

fiduciary which has been in the plan’s 

possession for at least 30 days before the 

plan receives the written request. The 

parenthetical language ‘‘without regard 

to whether such advisor is a fiduciary 

within the meaning of section 3(21) of 

the Act’’ clarifies for plan administrators 

that financial reports subject to 

disclosure include those prepared by 

investment advisors regardless of such 

advisors’ ERISA fiduciary status. 

The Department requested comment 

on whether, in addition to the above 

clarification, a financial report made 

available for disclosure under section 

101(k) should be further defined. The 

Department received one comment in 

response. The commenter expressed 

concern that the definition of financial 

report in the proposal could result in 

overly burdensome requests because the 

proposed language could be read to 

require disclosure of every document 

prepared for a board of trustees meeting 

by any outside professional or internal 

fiduciary, so long as the document has 

any financial aspect to it. Therefore, the 

commenter recommended limiting the 

scope of disclosure only to investmentrelated reports (e.g., investment manager 

reports, investment advisor reports, and 

investment consultant reports) and fund 

auditor reports received by the plan 

annually, semi-annually or quarterly. 

While the Department believes that 

investment-related reports are a primary 

object of the new disclosure 

requirement, the statutory language does 

not limit the type of quarterly, semiannual or annual financial reports 

subject to this new disclosure to only 

those that are investment-related. The 

Department, therefore, is adopting this 

provision without change. See 

paragraph (c)(2) of § 2520.101–6. 

The limitation that only those 

financial reports in the plan’s 

possession for at least 30 days are 

required to be disclosed is included in 

paragraph (d) of the final rule 

addressing limitations and exceptions. 

Paragraph (c)(1)(iii) of the proposal 

required the disclosure of applications 

filed with the Secretary of the Treasury 

requesting an extension under section 

304 of this Act or section 431(d) of the 

Internal Revenue Code of 1986 and the 

determination of such Secretary 

pursuant to such application. There 

were no comments on this provision. 

Accordingly, the provision is being 

adopted without change. See paragraph 

(c)(3) of § 2520.101–6. 

Paragraph (c)(2) of the proposal 

described the extent to which 

underlying data, individually 

identifiable information and proprietary 

information is not required to be 

disclosed for purposes of section 101(k). 

These provisions are set forth in 

paragraph (d), discussed below, 

describing limitations and exceptions. 

4. Limitations and Exceptions 

§ 2520.101–6(d) 

Paragraph (d) of the final regulation 

consolidates the limitations and 

exceptions applicable to the disclosure 

requirements under section 101(k). In 

general, paragraph (d) describes the 

reports, applications and information 

that are not subject to disclosure under 

section 101(k). For purposes of 

paragraph (d) of the final rule, the word 

‘‘application’’ should be read as 

including any determination by the 

Secretary of the Treasury on such 

application. 

(a) 12-Month Limit 

Paragraph (d)(1) addresses the 12- 

month limit on requests. As proposed, 

the limitation made clear that a plan 

administrator is not required to furnish 

to any requester more than one copy of 

a document during any 12-month 

period. One commenter argued that 

tracking the 12-month period on a 

request-by-request basis may be 

unnecessarily burdensome and 

suggested, instead, that plans have the 

flexibility to choose static or fixed 

periods, such as plan or calendar years. 

The Department has not adopted this 

suggestion. The Department, however, 

has clarified the operative language of 

the regulation as it relates to the timing 

of the 12-month period. Pursuant to 

paragraph (d)(1) of the final rule, a plan 

administrator is not required to furnish 

any report or application that has been 

furnished to the requester within the 12- 

month period immediately preceding 

the date on which the request was 

received by the plan. As noted in the 

preamble to the proposal, there is no 

requirement that a plan impose such a 

limitation on requests. Accordingly, 

plans are free to limit the costs and 

administrative burdens attendant to 

tracking document request periods 

simply by not imposing the limitation 

on requesters. 

(b) Aged Documents 

Paragraph (d)(2) of the final regulation 

deals with aged documents. The 

Department received two comments 

suggesting that the regulation limit a 

plan administrator’s obligation to 

furnish copies of outdated reports. One 

commenter expressed concern that the 

proposal did not limit in any way 

requests for documents dating back 

indefinitely and that such requests 

could create severe administrative 

burdens on plan administrators who 

might, for example, be required to 

search for documents from decades past. 

A second commenter suggested that 

financial reports become less useful to 

requesters as newer versions of these 

reports become available and, therefore, 

a plan administrator’s obligation to 

furnish aged documents need not 

extend indefinitely into the past. Both 

commenters suggested a maximum 

period approximating the period 

applicable to records required to be kept 

under the record retention requirements 

in section 107 of ERISA. The 

Department agrees that the obligations 

of an administrator should not be 

unlimited with respect to aged 

documents. The Department also agrees 

that limiting an administrator’s 

obligation in a manner consistent with 

the six-year record retention 

requirement of section 107 would 

preserve the right of requesters to 

request and obtain relevant documents 

without imposing undue burdens on 

plan administrators. The Department, 

therefore, has modified the regulation to 

exclude from the documents required to 

be furnished under section 101(k) those 

reports and applications that have been 

in the plan’s possession for 6 years or 

more as of the date on which the request 

was received by the plan. See paragraph 

(d)(2) of § 2520.101–6. 

(c) 30-Day Exception 

Paragraph (d)(3) of the final rule 

addresses the disclosure exception 

applicable to those reports that have not 

been in the possession of the plan for at 

least 30 days. One commenter on the 

proposed regulation requested 

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Federal Register / Vol. 75, No. 40 / Tuesday, March 2, 2010 / Rules and Regulations 9337 

4The Department further notes that section 101(k) 

of ERISA and section 502(a)(3) of the PPA expressly 

grant the Department the authority to prescribe 

regulations under section 101(k). In addition, the 

Department has broad rulemaking authority under 

section 505 of ERISA to prescribe regulations 

necessary or appropriate to carry out the provisions 

of title I of ERISA. It is the view of the Department 

that the provisions of the final rule are consistent 

with the foregoing authority. The Department also 

notes that nothing in the limitation under paragraph 

(d)(4) of the final regulation shall limit any other 

right that a person may have to review or obtain 

such underlying information. 

5Public Law 110–458, section 105(b)(1), 122 Stat. 

5092, 5104. 

clarification of a plan administrator’s 

obligation to furnish a requested report 

within 30 days from the request when 

the plan has not had possession of the 

report for 30 days at the time of the 

request. Paragraph (b)(1) of the proposal 

provided that a report must be furnished 

not later than 30 days after the date the 

written request is received by the plan. 

However, paragraph (c)(1) of the 

proposal provided that a report is not 

required to be disclosed until it has 

been in the plan’s possession for at least 

30 days prior to the date of a written 

request. The Department addresses this 

issue in paragraph (d)(3) of the final rule 

by providing an exception to the 

otherwise applicable disclosure rule for 

any reports that, as of the date a request 

is received by the plan, has not been in 

the plan’s possession for at least 30 

days. However, because requesting 

parties may not know about this 

limitation on their right to receive 

reports, the final rule also provides that, 

in connection with the exercise of this 

limitation, the plan administrator must 

furnish a timely notice—not later than 

30 days after the date on which the 

request was received by the plan— 

informing the requester of the existence 

of the report and the earliest date on 

which the report can be furnished by 

the plan. With such information, 

requesting parties are in a position to 

determine whether and when to further 

pursue their request, while at the same 

time not requiring plans to prematurely 

disclose the requested report(s). 

(d) Underlying Information and Data 

Exception 

Paragraph (d)(4) addresses the 

disclosure exception for information 

and data underlying reports and 

applications required to be disclosed. 

One commenter questioned whether 

this limitation, as set forth in paragraph 

(c)(2)(i) of the proposal, is consistent 

with the requirements of section 101(k). 

The commenter also requested 

clarification of the scope of the 

limitation. It is the view of the 

Department that in enacting section 

101(k), Congress was sufficiently 

specific in its reference to documents 

subject to the disclosure requirements to 

conclude that it did not intend to 

include within the scope of required 

disclosure all information and data used 

to develop or support the identified 

documents. The Department, therefore, 

has retained the exception in the final 

rule as proposed.4 By way of an 

example in applying the final rule, 

while a plan’s annual valuation report 

typically would be required to be 

disclosed under paragraph (c)(1) of the 

final rule, the plan’s asset statement or 

documents consisting of participant 

census data used to create that report 

would be subject to the limitation in 

paragraph (d)(4) of the final rule. 

(e) Individually Identifiable and 

Proprietary Information Exception 

Paragraph (d)(5) of the final rule 

addresses the disclosure exception 

relating to individually identifiable 

information and proprietary 

information. 

The proposal provided, in paragraph 

(c)(2)(ii)(A), that disclosed reports or 

applications shall not include any 

information that the plan administrator 

reasonably determines to be 

individually identifiable information 

regarding any plan participant, 

beneficiary, employee, fiduciary, or 

contributing employer. One commenter 

was concerned that this provision might 

be construed as prohibiting 

identification of the investment manager 

or advisor who prepared a financial 

report or whose performance is under 

review in a report. Following the 

publication of the proposed regulation, 

Congress amended section 101(k) in the 

Worker, Retiree and Employer Recovery 

Act of 2008 5 to provide that the 

exception for individually identifiable 

information does not apply to an 

investment manager or adviser or to any 

other person (other than an employee of 

the plan) preparing a financial report 

described in section 101(k)(1)(B). The 

Department has conformed the final rule 

to this amendment. See paragraph 

(d)(5)(i) of § 2520.101–6. 

Paragraph (c)(2)(ii)(B) of the proposed 

regulation, consistent with ERISA 

section 101(k)(2)(C)(ii), provided that 

disclosed reports or applications shall 

not include any information that the 

plan administrator reasonably 

determines to be proprietary 

information regarding the plan, any 

contributing employer, or entity 

providing services to the plan. Neither 

the statute nor the proposal defined the 

term ‘‘proprietary information,’’ but the 

proposal specifically requested 

comment on whether clarification is 

needed with respect to determinations 

regarding what information should be 

considered proprietary in this context 

and, if so, what standards should govern 

such determinations. 

One commenter expressed concern 

that the proposal granted too much 

discretion to plan administrators in 

determining what information the plan 

must disclose, particularly with respect 

to proprietary information regarding the 

plan (as opposed to proprietary 

information of contributing employers 

or entities providing services to the 

plan). The commenter recommended 

that the final regulation specifically 

define what information may be 

considered proprietary information and, 

with respect to proprietary information 

regarding the plan, no information 

should be considered proprietary unless 

its dissemination would be significantly 

adverse to the operation of the plan. 

Another commenter was generally 

supportive of the approach taken in the 

proposal, but suggested that the final 

regulation should have a special ‘‘safe 

harbor’’ rule on proprietary information 

regarding entities providing services to 

the plan. Such a rule, according to the 

commenter, would preclude plan 

administrators from disclosing any 

information that a service provider 

considers to be proprietary in nature, 

taking into account state laws and other 

standards and precedents applicable to 

the service provider. 

After careful consideration of the 

issues raised by the commenters, the 

Department has modified paragraph 

(d)(5) of the final rule to clarify the 

proprietary information exception. Like 

the proposal, the plan administrator is 

responsible for deciding what 

information is proprietary in nature. In 

this regard, a plan administrator may 

not redact information unless he or she 

reasonably determines that it is 

proprietary. The Department believes 

that use of the proprietary information 

exception from the disclosure 

requirements of section 101(k) will be 

rare. 

In an effort to clarify the exception, 

the final rule defines the term 

‘‘proprietary information’’ for purposes 

of section 101(k) and the regulation. 

Paragraph (d)(5)(ii) of the final rule 

provides that ‘‘proprietary information’’ 

means trade secrets and other nonpublic information (e.g., processes, 

procedures, formulas, methodologies, 

techniques, strategies) that, if disclosed 

by the plan, may cause, or increase a 

reasonable risk of, financial harm to the 

plan, a contributing employer, or entity 

providing services to the plan. In 

addition, the final regulation provides, 

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6See, e.g., Advisory Opinion 82–21A (Apr. 21, 

1982) (referencing AO 79–82A). 

7For purposes of this regulatory impact analysis, 

the Department has assumed that 2010 is the year 

of implementation, notwithstanding that section 

101(k) of ERISA first became effective for plan years 

beginning after December 31, 2007. The Department 

uses pre-PPA requirements as the base-line for this 

analysis. 

8This assumes a discount rate of 7 percent and 

is in 2009 Dollars. The ten-year period covers the 

years 2010–2019. 

at paragraph (d)(5)(iii), that a plan 

administrator may treat information 

relating to a contributing employer or 

entity providing services to the plan as 

other than proprietary if the 

contributing employer or service 

provider has not identified such 

information as proprietary. This 

approach encourages a narrow and 

reasoned use of the proprietary 

information exception, which will 

benefit requesting persons. At the same 

time, it will give plan administrators 

more specific authority on which to rely 

when they need to withhold 

information. The final regulation 

clarifies that information such as 

customer lists, risk evaluation tools, 

investment strategies, and trading 

strategies will often be proprietary 

information of the entity providing the 

service to the plan. On the other hand, 

it would not be consistent with the 

requirements of the regulation and 

section 101(k) for a plan administrator 

to characterize information showing 

poor performance, or violations of law, 

as ‘‘propriety information’’ merely to 

avoid disclosing it under section 101(k). 

Nor typically would it be consistent 

with section 101(k) for a plan 

administrator to determine that 

information is proprietary when the 

administrator knows that the 

information has been made available to 

the general public. 

5. Persons Entitled To Request 

Documents § 2520.101–6(e) 

Like paragraph (d) of the proposal, 

paragraph (e) of the final rule defines a 

person entitled to request and receive 

documents under section 101(k) as any 

participant within the meaning of 

section 3(7) of the Act, any beneficiary 

receiving benefits under the plan, any 

labor organization representing 

participants under the plan, or any 

employer that is a party to the collective 

bargaining agreement(s) pursuant to 

which the plan is maintained or who 

otherwise may be subject to withdrawal 

liability pursuant to ERISA section 

4203. The Department received one 

comment asking whether a plan 

administrator would be obligated to 

furnish a copy of a report requested by 

a third party acting on behalf of a 

participant or beneficiary who is 

entitled to request documents under 

section 101(k). The Department has long 

held the view that a third party, for 

example an attorney or family member, 

is entitled to request and receive 

documents on behalf of a participant or 

beneficiary as long as the participant or 

beneficiary has properly authorized the 

release of such information to the third 

party and the documents are otherwise 

required to be disclosed to the 

participant or beneficiary under title I of 

ERISA.6 Nothing in section 101(k) of 

ERISA or the final regulation is contrary 

to this position. Paragraph (e) of the 

final rule is being adopted without 

change from the proposal. See 

paragraph (e) of § 2520.101–6. 

6. Miscellaneous 

One commenter noted that the 

proposal would not have required plans 

to inform participants of their new 

rights under section 101(k) to request 

and receive copies of actuarial and 

financial documents from their plans. It 

is the view of the Department that a 

plan’s summary plan description should 

inform participants and beneficiaries 

about their right to request documents 

required to be disclosed under section 

101(k). The summary plan description is 

the primary vehicle under ERISA for 

informing participants about their rights 

and benefits. While amending the 

regulations governing the summary plan 

description is beyond the scope of this 

rulemaking, the Department will be 

considering changes to the statement of 

ERISA rights required by paragraph (t) 

of 29 CFR 2520.102–3, and the model 

statement set forth at paragraph (t)(2) of 

that section, to encompass the 

disclosure of the right to documents 

under section 101(k) of the Act. In this 

regard, the Department invites 

suggestions for model language and 

identification of any other changes 

necessary to update the statement of 

ERISA rights described in paragraph (t). 

Such suggestions may be submitted to eori@dol.gov, subject: Statement of 

ERISA rights. 

7. Charges for Documents 

Along with the proposed regulation 

under § 2520.101–6, the Department 

also proposed amendments to 29 CFR 

2520.104b–30, which provides 

guidelines for assessing a reasonable 

charge for furnishing plan documents 

pursuant to ERISA section 104(b)(4) 

(e.g., latest updated summary plan 

description, latest annual report, any 

terminal report, etc.). Language in 

§ 2520.104b–30 could be construed as 

contrary to specific language in section 

101(k) of ERISA, § 2520.101–6 and other 

PPA provisions amending title I of 

ERISA that expressly permit plan 

administrators to impose reasonable 

charges on requesters for the cost of 

furnishing the requested information, 

including handling and postage charges. 

Accordingly, minor conforming 

amendments were proposed to 

paragraph (a) of § 2520.104b–30. 

Because the Department received no 

comment on these amendments, they 

were adopted without change in the 

final rule. 

C. Regulatory Impact Analysis 

Summary 

This final rule contains guidance 

necessary to implement section 101(k) 

of the Act, the requirements of which 

are discussed above. 

Section 101(k) was added to ERISA 

because more complete disclosures were 

considered an important element of 

measures enacted in PPA to strengthen 

the long-term health of the 

multiemployer pension plan system. 

Providing participants and beneficiaries, 

employee representatives, and 

contributing employers with greater 

access to actuarial and financial 

information regarding their plans will 

increase the transparency of 

multiemployer pension plans and afford 

all parties interested in the financial 

viability of such plans greater 

opportunity to monitor their funding 

and financial status and to take 

appropriate action when necessary. 

By clarifying certain terms used in 

section 101(k) of the Act, this regulation 

will also permit multiemployer plan 

administrators to fulfill their disclosure 

responsibilities under this section with 

greater certainty. The increase in 

transparency of plan operations may 

also contribute to a greater sense of 

accountability to plan participants and 

beneficiaries on the part of plan 

officials. These benefits have not been 

quantified. 

The cost of the multiemployer plan 

disclosure requirement under section 

101(k) of the Act and the final rule is 

expected to total approximately $2.4 

million in the year of implementation,7

$2.1 million in the second year, and 

$1.7 million in the third year. The tenyear total discounted cost of the statute 

and rule is $15.7 million.8 These costs 

arise from logging in disclosure 

requests, copying and mailing the 

reports, and redacting individually 

identifiable and proprietary information 

from the reports. The total hour burden 

is estimated to be 47,000 hours in the 

first year, 42,000 in the second year and 

34,000 in the third year. Both the dollar 

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9Total cost is the sum of the dollar burden and 

the dollar equivalent of the hour burden. 

burden and the hour burden are 

projected to fall over the three-year 

period as interest in the aging inventory 

of existing documents subject to this 

regulation wanes. The dollar equivalent 

of the three-year hour burden is 

estimated to be $3.7 million. 

The data and methodology used in 

developing these estimates are more 

fully described in the Paperwork 

Reduction Act section of this regulatory 

impact analysis. 

Executive Order 12866 Statement 

Under Executive Order 12866 (58 FR 

51735), the Department must determine 

whether a regulatory action is 

‘‘significant’’ and therefore subject to 

review by the Office of Management and 

Budget (OMB). Section 3(f) of the 

Executive Order defines a ‘‘significant 

regulatory action’’ as an action that is 

likely to result in a rule (1) having an 

annual effect on the economy of $100 

million or more, or adversely and 

materially affecting a sector of the 

economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local or tribal 

governments or communities (also 

referred to as ‘‘economically 

significant’’); (2) creating a serious 

inconsistency or otherwise interfering 

with an action taken or planned by 

another agency; (3) materially altering 

the budgetary impacts of entitlement 

grants, user fees, or loan programs or the 

rights and obligations of recipients 

thereof; or (4) raising novel legal or 

policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. Although the Department 

believes that this regulatory action is not 

economically significant within the 

meaning of section 3(f)(1) of the 

Executive Order, the action has been 

determined to be significant within the 

meaning of section 3(f)(4) of the 

Executive Order, and the Department 

accordingly provides the following 

assessment of its potential costs and 

benefits. As elaborated below, the 

Department believes that the benefits of 

the rule justify its costs. 

In assessing the costs and benefits of 

the rule and associated provisions of the 

Act, the Department endeavored to 

consider all of the major activities that 

will be carried out pursuant to them, 

e.g., copying and mailing the reports 

and redacting individually identifiable 

and proprietary information from the 

reports. Because the regulation does not 

require the creation of any new 

documents, the costs of the rule are 

limited to those arising from logging in 

requests and from copying, mailing and 

redacting disclosed reports. 

The Department estimates that the 

total cost 9 per plan year over the first 

three-year period to comply with the 

regulation will average $870 for defined 

benefit plans and $580 for defined 

contribution plans. Given that total 2006 

assets of multiemployer pension plans 

averaged about $290 million in defined 

benefit plans and $55 million in defined 

contribution plans, these annual costs 

average about $3 per million dollars of 

plan assets in defined benefit plans and 

$10 per million dollars of assets in 

defined contribution plans. The 

Department believes that the rule will 

provide participants, beneficiaries, 

employee representatives, and 

contributing employers with important 

information regarding the funding and 

financial status of multiemployer 

pension plans and allow them to take 

action where appropriate. Although the 

benefits of this increased transparency 

have not been quantified, the 

Department has concluded that these 

benefits of the rule justify its costs. 

Paperwork Reduction Act 

In accordance with the Paperwork 

Reduction Act of 1995 (PRA) (44 U.S.C. 

3506(c)(2)(A)), the proposed regulation 

solicited comments on the information 

collections included in the regulation. 

The Department submitted an 

information collection request (ICR) to 

OMB in accordance with 44 U.S.C. 

3507(d) contemporaneously with 

publication of the proposed regulation 

for OMB’s review. Two public 

comments described earlier in this 

preamble raised issues relevant to the 

costs and administrative burdens 

attendant to the proposal. The 

Department took these public comments 

into account in revising the economic 

impact of the proposal and developing 

the revised paperwork burden analysis 

discussed below. 

In connection with publication of this 

final rule, the Department submitted an 

ICR to OMB for its request of a new 

collection. OMB approved the ICR on 

February 21, 2010, under OMB Control 

Number 1210–0131, which expires on 

February 28, 2013. A copy of the ICR 

may be obtained by contacting the PRA 

addressee shown below or at http:// 

www.RegInfo.gov. PRA addressee: G. 

Christopher Cosby, Office of Policy and 

Research, U.S. Department of Labor, 

Employee Benefits Security 

Administration, 200 Constitution 

Avenue, NW., Room N–5718, 

Washington, DC 20210. Telephone: 

(202) 693–8410; Fax: (202) 219–4745. 

These are not toll-free numbers. 

The final rule implements the 

disclosure requirements of new section 

101(k) of the Act, as added by section 

502(a)(1) of the PPA. As described 

earlier in the preamble, section 101(k)(1) 

of the Act requires multiemployer plan 

administrators, upon written request, to 

furnish copies of certain documents to 

any plan participant, beneficiary, 

employee representative, or any 

employer that has an obligation to 

contribute to the plan. The documents 

that may be requested are (1) a copy of 

any periodic actuarial report (including 

sensitivity testing) received by the plan 

for any plan year which has been in the 

plan’s possession for at least 30 days; (2) 

a copy of any quarterly, semi-annual, or 

annual financial report prepared for the 

plan by any plan investment manager or 

advisor or other fiduciary that has been 

in the plan’s possession for at least 30 

days; and (3) a copy of any application 

filed with the Secretary of the Treasury 

requesting an extension under section 

304 of ERISA (or section 431(d) of the 

Internal Revenue Code of 1986) and the 

determination of such Secretary 

pursuant to such application. 

The information collection provisions 

of this final regulation are found in 

§ 2520.101–6(a), which requires 

multiemployer defined benefit and 

defined contribution pension plan 

administrators to furnish copies of 

certain actuarial and financial 

documents to plan participants, 

beneficiaries, employee representatives, 

and contributing employers upon 

request. This information constitutes a 

third-party disclosure from the 

administrator to participants, 

beneficiaries, employee representatives, 

and contributing employers for 

purposes of the PRA. Pursuant to 

§ 2520.101–6(d)(5), the documents 

required to be disclosed shall not 

contain any information that the plan 

administrator reasonably determines to 

be either: (i) Individually identifiable 

information regarding any plan 

participant, beneficiary, employee, 

fiduciary, or contributing employer, 

except that such limitation shall not 

apply to an investment manager or 

adviser, or with respect to any other 

person (other than an employee of the 

plan) preparing a financial report 

described in paragraph § 2520.101– 

6(c)(2); or (ii) proprietary information 

regarding the plan, any contributing 

employer, or entity providing services to 

the plan. The plan administrator must 

inform the requester if any such 

information is withheld. 

Annual Hour Burden 

In order to estimate the potential costs 

of section 101(k) of the Act and this 

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10All dollar or hour numbers in this burden 

analysis have been rounded to either the nearest 

thousand or the nearest hundred, as appropriate. 

11This assumption is based on the expectation 

that interest in receiving existing documents will be 

high in the initial year of implementation and 

gradually decrease in subsequent years. 

12 8,200 hours in 2010, 5,400 hours in 2011, and 

2,700 hours in 2012. 

13This is the product of the total documents 

disclosed times the percentage of documents 

disclosed on paper times 15 minutes (to locate, 

copy, and mail paper documents). 

14The Department estimates that 70% of the 

requested documents will be redacted by outside 

legal counsel, and that 30% of financial reports and 

25% of actuarial reports will require redaction. 

15The Department estimates that 20% of existing 

financial reports and actuarial reports for defined 

benefit plans will be available electronically, 50% 

of existing extension requests for such plans will be 

available electronically, and 20% of existing 

defined contribution plan financial reports will be 

available electronically. Documents are assumed to 

be disclosed on paper unless the requester has 

access to e-mail and requests a document that 

already exists in paper form. 

16EBSA labor rate estimates are in 2009 Dollars 

and are based on the National Occupational 

Employment Survey (May 2007, Bureau of Labor 

Statistics) and the Employment Cost Index (June 

2008, Bureau of Labor Statistics). Total labor costs 

(wages plus benefits plus overhead) for clerical staff 

were estimated to average $26 per hour. Total labor 

cost for legal staff was estimated to average $116 per 

hour based on wage estimates for attorneys. 

17One commenter expressed concern that the 

administrative cost of the proposed rule may have 

been overstated because Internet disclosure will be 

frequent and cost efficient. The Department notes 

that no distribution costs for the notices have been 

included in this PRA analysis because plans can 

charge for the cost of furnishing paper documents 

and the cost of electronic distribution is nominal. 

final rule, the Department estimated the 

number of plans that would be affected. 

Based on data derived exclusively from 

the Form 5500 for the 2006 plan year, 

which is the most recent year for which 

complete data are available, the 

Department estimates that there are 

1,500 multiemployer defined benefit 

plans and 1,530 multiemployer defined 

contribution plans that would be subject 

to this disclosure requirement. Section 

101(k) of the Act and the proposal 

generally did not limit the class of 

documents that can be requested in any 

way by date of creation or receipt. 

However, as explained in the preamble 

above, in response to comments 

received on the proposal, the final 

regulation limits a plan administrator’s 

obligation with respect to aged 

documents. See § 2520.101–6(d)(2). 

Thus, for purposes of this regulatory 

impact analysis, the Department has 

assumed that plans would not respond 

to any requests for aged documents (i.e., 

documents in existing inventory that 

were received prior to the 2004 plan 

year), but that each multiemployer 

defined benefit and defined 

contribution pension plan will disclose 

both an existing inventory and newly 

created periodic actuarial reports 

(‘‘actuarial reports’’), quarterly, 

semiannual, or annual financial reports 

(‘‘financial reports’’), and amortization 

extension requests filed with the IRS 

(‘‘extension requests’’). 

In developing burden estimates, the 

Department has taken into account the 

total estimated hours required to copy, 

mail, and redact reports eligible for 

disclosure. Redaction may be required 

to remove individually identifiable and 

proprietary information from certain 

reports. 

With respect to an existing inventory 

of reports, the Department estimates that 

multiemployer defined benefit plans 

will receive 99,000 10 requests to 

disclose existing financial reports (an 

average of 66 per plan), 75,000 requests 

for existing actuarial reports (an average 

of 50 per plan), and 1,500 requests for 

existing extension requests (an average 

of one per plan), and defined 

contribution plans will receive 64,000 

requests for existing financial reports 

(an average of 42 per plan). Therefore, 

the Department estimates that 

multiemployer pension plans will 

receive a total of 240,000 requests for 

disclosures of existing inventory of 

reports at some point over the first five 

years starting on the effective date of the 

statute. 

For purposes of this analysis, the 

Department assumes that 40 percent of 

the existing documents would be 

requested in the year section 101(k) first 

became effective, 30 percent in the 

second year, 15 percent in the third 

year, 10 percent in the fourth year, and 

5 percent in the fifth year.11 Although 

section 101(k) first became effective for 

plan years beginning after December 31, 

2007, the final rule is not itself effective 

until 30 days after its publication in the 

Federal Register (2010). Therefore, the 

Department estimates that 70% of 

existing documents would be disclosed 

during the two years before the effective 

date of the regulation and these costs are 

accounted for in the RIA. The PRA 

burden analysis, however, only 

accounts for the hour and cost burden 

incurred during the year the final rule 

is effective and the following two years 

(2010–2012). Based on this allocation, 

the hour burdens are estimated to be 

34,000 hours ($1.1 million equivalent 

cost) in 2010, 32,000 hours ($1.1 million 

equivalent cost) in 2011, and 29,000 

hours ($875,000 equivalent cost) in 

2012. 

The Department estimates that the 

total hour burden associated with 

disclosing existing documents upon 

request over the three-year period 

(2010–2012) will be approximately 

16,000 hours.12 For purposes of this 

impact analysis only, this includes 

15,000 clerical hours to log requests and 

to locate, copy, and mail paper 

disclosures 13 and 1,200 legal hours (1.1 

hours per plan for financial reports, .7 

hours for actuarial reports, and 0 hours 

for extension requests) 14 to redact 

individually identifiable and 

proprietary information.15 The 

equivalent costs of these hours are 

$540,000.16

With respect to newly created reports, 

the Department estimates that 

multiemployer defined benefit plans 

will receive 105,000 requests to disclose 

newly created financial reports (an 

average of 70 per plan), 32,000 requests 

for newly created actuarial reports (an 

average of 21 per plan), and 1,600 

requests for newly created extension 

requests (an average of one per plan), 

and defined contribution plans will 

receive 92,000 requests for newly 

created financial reports (an average of 

60 per plan). Therefore, the Department 

estimates that multiemployer pension 

plans would receive a total of 231,000 

requests annually for disclosures of 

newly created reports. 

The Department estimates that the 

total hour burden associated with 

disclosing newly created documents 

upon request is 26,000 hours annually. 

This estimate includes 25,000 clerical 

hours to copy and mail paper 

disclosures and 1,300 legal hours to 

redact individually identifiable and 

proprietary information. The equivalent 

cost of these hours is estimated to be 

$785,000. 

Annual Cost Burden 

The main costs arising from this 

information collection derive from the 

direct costs of redacting individually 

identifiable and proprietary information 

from the reports. The Department 

assumes no additional costs for copying 

and mailing documents, because the 

final rule, like the proposal, allows 

plans to charge requesters for the 

reasonable costs of furnishing 

documents in an amount that does not 

exceed the lesser of the actual cost to 

the plan to furnish the document, or 25 

cents per page plus the cost of mailing 

or otherwise delivering the requested 

document.17

The estimated total costs to redact 

individually identifiable and 

proprietary information from the 

existing inventory of financial reports 

over the three-year period 2010–2012 

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18 $66,000 in 2010, $44,000 in 2011, and $22,000 

in 2012. 

19 $41,000 in 2010, $27,000 in 2011, and $13,000 

in 2012. 

20 $67,000 in 2010, $44,000 in 2011, and 22,000 

in 2012. 

21 $174,000 in 2010, $116,000 in 2011, and 

$58,000 in 2012. 

22The Department has assumed that 70% of 

redaction work will be contracted. 

are $132,000 18 and from the existing 

inventory of actuarial reports are 

$82,000.19 The Department estimates 

that no costs will be incurred for 

redacting information from the existing 

inventory of extension requests. For 

multiemployer defined contribution 

plans, estimated redaction costs for 

existing financial reports are 

$134,000.20 Therefore, the total 

redaction costs for the existing 

inventory of all reports are estimated to 

be $348,000.21

The estimated annual costs of contract 

work 22 to redact individually 

identifiable and proprietary information 

for newly-created financial reports 

would be $146,000 and $46,000 for 

newly created actuarial reports. The 

Department estimates that no costs will 

be incurred for redacting information 

from newly created extension requests. 

For multiemployer defined contribution 

plans, the annual redaction costs for 

newly created financial reports are 

estimated to be $149,000. Therefore, the 

total annual redaction costs for all 

newly created reports are estimated to 

be $341,000. 

Type of Review: New collection. 

Agency: Department of Labor, 

Employee Benefits Security 

Administration. 

Title: Multiemployer Pension Plan 

Information Made Available on Request. 

OMB Number: 1210–0131. 

Affected Public: Individuals or 

households; business or other for-profit; 

not-for-profit institutions. 

Respondents: 3,037. 

Frequency of Response: Occasionally. 

Responses: 255,000. 

Estimated Total Annual Hour Burden: 

34,000 (first year); 31,000 (second year); 

29,000 (third year). 

Estimated Total Annual Cost Burden: 

$515,000 (first year); $457,000 (second 

year); $399,000 (third year). 

Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) (RFA) imposes 

certain requirements with respect to 

Federal rules that are subject to the 

notice and comment requirements of 

section 553(b) of the Administrative 

Procedure Act (5 U.S.C. 551 et seq.) and 

which are likely to have a significant 

economic impact on a substantial 

number of small entities. Unless an 

agency certifies that a rule is not likely 

to have a significant economic impact 

on a substantial number of small 

entities, section 603 of the RFA requires 

that the agency present a regulatory 

flexibility analysis at the time of the 

publication of the final rule describing 

the impact of the rule on small entities 

and seeking public comment on such 

impact. Small entities include small 

businesses, organizations and 

governmental jurisdictions. 

For purposes of analysis under the 

RFA, the Employee Benefits Security 

Administration (EBSA) continues to 

consider a small entity to be an 

employee benefit plan with fewer than 

100 participants. The basis of this 

definition is found in section 104(a)(2) 

of ERISA, which permits the Secretary 

of Labor to prescribe simplified annual 

reports for pension plans that cover 

fewer than 100 participants. By this 

standard, data from the EBSA Private 

Pension Bulletin 2006 show that only 

375 multiemployer pension plans or 

12% of all multiemployer pension plans 

are small entities. The Department does 

not consider this to be a substantial 

number of small entities. Therefore, 

pursuant to section 605(b) of the RFA, 

the Department hereby certifies that this 

rule is not likely to have a significant 

economic impact on a substantial 

number of small entities. 

Congressional Review Act 

This final rule is subject to the 

Congressional Review Act provisions of 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 (5 

U.S.C. 801 et seq.) and will be 

transmitted to the Congress and the 

Comptroller General for review. 

Unfunded Mandates Reform Act 

For purposes of the Unfunded 

Mandates Reform Act of 1995 (Pub. L. 

104–4), as well as Executive Order 

12875, the final rule does not include 

any Federal mandate that will result in 

expenditures by state, local, or tribal 

governments in the aggregate of more 

than $100 million, adjusted for 

inflation, or increase expenditures by 

the private sector of more than $100 

million, adjusted for inflation. 

Federalism Statement 

Executive Order 13132 (August 4, 

1999) outlines fundamental principles 

of federalism and requires the 

adherence to specific criteria by Federal 

agencies in the process of their 

formulation and implementation of 

policies that have substantial direct 

effects on the States, the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. This final 

rule does not have federalism 

implications because it has no 

substantial direct effect on the States, on 

the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Section 514 of 

ERISA provides, with certain exceptions 

specifically enumerated, that the 

provisions of Titles I and IV of ERISA 

supersede any and all laws of the States 

as they relate to any employee benefit 

plan covered under ERISA. The 

requirements implemented in the rule 

do not alter the fundamental provisions 

of the statute with respect to employee 

benefit plans, and as such would have 

no implications for the States or the 

relationship or distribution of power 

between the national government and 

the States. 

List of Subjects in 29 CFR Part 2520 

Accounting, Employee benefit plans, 

Employee Retirement Income Security 

Act, Pensions, Reporting and 

recordkeeping requirements. 

■ For the reasons set forth in the 

preamble, the Department of Labor 

amends 29 CFR part 2520 as follows: 

PART 2520—RULES AND 

REGULATIONS FOR REPORTING AND 

DISCLOSURE 

■ 1. The authority citation for part 2520 

is revised to read as follows: 

Authority: 29 U.S.C. 1021–1025, 1027, 

1029–31, 1059, 1134 and 1135; and Secretary 

of Labor’s Order 1–2003, 68 FR 5374 (Feb. 3, 

2003). 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– 

4 also issued under 29 U.S.C. 1021(f). Sec. 

2520.101–6 also issued under 29 U.S.C. 

1021(k) and Pub. L. 109–280, § 502(a)(3), 120 

Stat. 780, 940 (2006). 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, 111 Stat. 788. 

■ 2. Add and reserve § 2520.101–5 of 

subpart A, and add § 2520.101–6 to 

subpart A to read as follows: 

§ 2520.101–5 [Reserved] 

§ 2520.101–6 Multiemployer Pension Plan 

Information Made Available on Request. 

(a) In general. For purposes of 

compliance with the requirements of 

section 101(k) of the Employee 

Retirement Income Security Act of 1974, 

as amended (the Act), 29 U.S.C. 1001, et 

seq., the administrator of a 

multiemployer pension plan shall, in 

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9342 Federal Register / Vol. 75, No. 40 / Tuesday, March 2, 2010 / Rules and Regulations 

accordance with the requirements of 

this section, furnish copies of reports 

and applications described in paragraph 

(c) of this section to plan participants, 

beneficiaries, employee representatives 

and contributing employers, described 

in paragraph (e) of this section. 

(b) Obligation to furnish. (1) Except as 

provided in paragraph (d) of this 

section, the administrator of a 

multiemployer pension plan shall, not 

later than 30 days after receipt of a 

written request for a report(s) or 

application(s) described in paragraph (c) 

of this section from a plan participant, 

beneficiary, employee representative or 

contributing employer described in 

paragraph (e) of this section, furnish the 

requested document or documents to 

the requester. 

(2) The plan administrator shall 

furnish reports and applications 

pursuant to paragraph (b)(1) of this 

section in a manner consistent with the 

requirements of 29 CFR 2520.104b–1, 

including paragraph (c) of that section 

relating to the use of electronic media. 

(3) The plan administrator may 

impose a reasonable charge to cover the 

costs of furnishing documents pursuant 

to this section, but in no event may such 

charge exceed— 

(i) The lesser of: (A) The actual cost 

to the plan for the least expensive 

means of acceptable reproduction of the 

document(s) or (B) 25 cents per page; 

plus 

(ii) The cost of mailing or delivery of 

the document. 

(c) Documents to be furnished. For 

purposes of paragraph (a) of this section, 

and subject to paragraph (d) of this 

section, a plan participant, beneficiary, 

employee representative or contributing 

employer described in paragraph (e) of 

this section, shall be entitled to request 

and receive a copy of any: 

(1) Periodic actuarial report. For this 

purpose the term ‘‘periodic actuarial 

report’’ means any— 

(i) Actuarial report prepared by an 

actuary of the plan and received by the 

plan at regularly scheduled, recurring 

intervals; and 

(ii) Study, test (including a sensitivity 

test), document, analysis or other 

information (whether or not called a 

‘‘report’’) received by the plan from an 

actuary of the plan that depicts 

alternative funding scenarios based on a 

range of alternative actuarial 

assumptions, whether or not such 

information is received by the plan at 

regularly scheduled, recurring intervals. 

(2) Quarterly, semi-annual, or annual 

financial report prepared for the plan by 

any plan investment manager or advisor 

(without regard to whether such advisor 

is a fiduciary within the meaning of 

section 3(21) of the Act) or other 

fiduciary; and 

(3) Application filed with the 

Secretary of the Treasury requesting an 

extension under section 304 of the Act 

or section 431(d) of the Internal 

Revenue Code of 1986 and the 

determination of such Secretary 

pursuant to such application. 

(d) Limitations and exceptions. For 

purposes of this section, reports and 

applications (and related 

determinations) required to be disclosed 

under this section shall not include: 

(1) Any report or application that was 

furnished to the requester within the 12- 

month period immediately preceding 

the date on which the request is 

received by the plan; 

(2) Any report or application that, as 

of the date on which the request is 

received by the plan, has been in the 

plan’s possession for 6 years or more; 

(3) Any report described in paragraph 

(c)(1) and (c)(2) of this section that, as 

of the date on which the request is 

received by the plan, has not been in the 

plan’s possession for at least 30 days; 

except that, if the plan administrator 

elects not to furnish any such 

document, the administrator shall 

furnish a notice, not later than 30 days 

after the date on which request is 

received by the plan, informing the 

requester of the existence of the 

document and the earliest date on 

which the document can be furnished 

by the plan. 

(4) Any information or data which 

served as the basis for any report or 

application described in paragraph (c) of 

this section, although nothing herein 

shall limit any other right that a person 

may have to review or obtain such 

information under the Act; or 

(5)(i) Any information within a report 

or application that the plan 

administrator reasonably determines to 

be either: 

(A) individually identifiable 

information with respect to any plan 

participant, beneficiary, employee, 

fiduciary, or contributing employer, 

except that such limitation shall not 

apply to an investment manager, 

adviser, or other person (other than an 

employee of the plan) preparing a 

financial report described in paragraph 

(c)(2) of this section; or 

(B) proprietary information regarding 

the plan, any contributing employer, or 

entity providing services to the plan. 

(ii) For purposes of paragraph 

(d)(5)(i)(B) of this section, the term 

‘‘proprietary information’’ means trade 

secrets and other non-public 

information (e.g., processes, procedures, 

formulas, methodologies, techniques, 

strategies) that, if disclosed by the plan, 

may cause, or increase a reasonable risk 

of, financial harm to the plan, a 

contributing employer, or entity 

providing services to the plan. 

(iii) The plan administrator may treat 

information relating to a contributing 

employer or entity providing services to 

the plan as other than proprietary if the 

contributing employer or service 

provider has not identified such 

information as proprietary. 

(iv) A plan administrator shall inform 

the requester if the plan administrator 

withholds any information described in 

paragraph (d)(5)(i) of this section from a 

report or application requested under 

paragraph (b) of this section. 

(e) Persons entitled to request 

documents. For purposes of this section, 

a plan participant, beneficiary, 

employee representative or contributing 

employer entitled to request and receive 

reports and applications includes: 

(1) Any participant within the 

meaning of section 3(7) of the Act; 

(2) Any beneficiary receiving benefits 

under the plan; 

(3) Any labor organization 

representing participants under the 

plan; 

(4) Any employer that is a party to the 

collective bargaining agreement(s) 

pursuant to which the plan is 

maintained or who otherwise may be 

subject to withdrawal liability pursuant 

to section 4203 of the Act. 

■ 3. In § 2520.104b–30, revise paragraph 

(a) to read as follows: 

§ 2520.104b–30 Charges for documents. 

(a) Application. The plan 

administrator of an employee benefit 

plan may impose a reasonable charge to 

cover the cost of furnishing to 

participants and beneficiaries upon 

their written request as required under 

section 104(b)(4) of the Act, copies of 

the following information, statements or 

documents: The latest updated 

summary plan description, and the 

latest annual report, any terminal report, 

the bargaining agreement, trust 

agreement, contract, or other 

instruments under which the plan is 

established or operated. Except where 

explicitly permitted under the Act, no 

charge may be assessed for furnishing 

information, statements or documents as 

required by other provisions of the Act, 

which include, in part 1 of title I, 

sections 104(b)(1), (2), (3) and (c) and 

105(a) and (c). 

* * * * * 

WReier-Aviles on DSKGBLS3C1PROD with RULES

Federal Register / Vol. 75, No. 40 / Tuesday, March 2, 2010 / Rules and Regulations 9343 

Signed at Washington, DC, this 22nd day 

of February 2010. 

Phyllis C. Borzi, 

Assistant Secretary, Employee Benefits 

Security Administration, Department of 

Labor. 

[FR Doc. 2010–4097 Filed 2–26–10; 11:15 am] 

BILLING CODE 4510–29–P 

POSTAL SERVICE 

39 CFR Parts 111 and 121 

Nomenclature Change Relating to the 

Network Distribution Center Transition 

AGENCY: Postal ServiceTM. 

ACTION: Final rule. 

SUMMARY: The Postal Service is revising 

Mailing Standards of the United States 

Postal Service, Domestic Mail Manual 

(DMM®) and other related manuals and 

publications, pursuant to the ongoing 

transition of USPS® bulk mail centers 

(BMC) to network distribution centers 

(NDC), by replacing all text references to 

‘‘BMC’’ with ‘‘NDC’’ concurrent with 

other DMM revisions scheduled for 

March 2010. The Postal Service is 

planning to issue DMM Issue 300 in 

May 2010, containing all DMM 

revisions from May 11, 2009 through the 

May 2010 issue date. The changes to the 

DMM described in this document will 

be reflected in that Issue 300 of the 

DMM. We are similarly revising our 

regulations in Part 121 of Title 39, Code 

of Federal Regulations, to reflect the 

BMC to NDC terminology change. 

DATES: Effective Date: March 14, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Kevin Gunther at 202–268–7208 or 

Shibani Gambhir at 202–268–6256. 

SUPPLEMENTARY INFORMATION: 

Background: The BMC network was 

established in the 1970s to process 

Parcel Post®, Bound Printed Matter, 

Media Mail®, Standard Mail® and 

Periodicals. Fluctuations in volume and 

changes in the mailing habits of the 

public and large mailers have 

necessitated changes to the USPS 

business model relative to BMC 

processing and transportation. To fully 

utilize our existing BMC facilities and 

consolidate transportation, we are 

changing our mail flow processes 

through the new NDC network. As part 

of this change, we are converting BMCs 

to NDCs. We began implementation of 

the NDC concept in May 2009 and this 

transition continues to date. 

The Postal Service is taking another 

step towards the implementation of the 

NDC concept by effecting the name 

change, from BMC to NDC, within the 

DMM, other related manuals and 

publications, and postage statements. 

This revision will be limited to the 

change in nomenclature only. There 

will be no changes to mailing standards, 

service standards, or USPS processes 

resulting from this action. The Postal 

Service expects to be proposing changes 

to the standards surrounding the 

preparation, entry, and deposit of 

mailpieces pursuant to final 

implementation of the NDC concept. 

Any such changes will be the subject of 

future Federal Register notices. 

As a reminder, on August 3, 2009, the 

Postal Service changed all of its 

applicable labeling lists to effect the 

name change from BMC to NDC. At that 

time, mailers were provided a 73-day 

transitional period to make the changes 

to their software applications. Mailers 

are now urged to review their operations 

to assure that these software changes 

have been made. 

One of these nomenclature changes 

will update the description of the ‘‘BMC 

Presort’’ (or ‘‘BMC PRSRT’’) and ‘‘OBMC 

Presort’’ (or ‘‘OBMC PRSRT’’) price 

markings, for Parcel Select® mailpieces, 

in DMM 402.2.5.2. Mailers will be 

required to change these markings to 

‘‘NDC Presort’’ (or ‘‘NDC PRSRT’’) and 

‘‘ONDC Presort’’ (or ‘‘ONDC PRSRT’’) 

respectively. Mailers will also be 

required to make changes to the humanreadable content line, corresponding to 

the content identifier number (CIN), of 

those sack and tray labels bearing a 

BMC reference, as displayed in DMM 

Exhibit 708.6.2.4, 3-Digit Content 

Identifier Numbers. Similar to the 

period allowed for changes to labeling 

lists, mailers will be provided a 73-day 

transitional period, from March 14, 

2010, with an effective date of May 26, 

2010, to make changes to their software 

applications. 

With this action, the Postal Service 

will be revising the text of the DMM, 

including all applicable Publication 95, 

Quick Service Guide, and Notice 123, 

Price List, references as follows: 

Current text Revised text 

Bulk Mail Center ................................................................................................................................ Network Distribution Center. 

BMC ................................................................................................................................................... NDC. 

Destination Bulk Mail Center ............................................................................................................. Destination Network Distribution Center. 

DBMC ................................................................................................................................................. DNDC. 

Origin Bulk Mail Center ...................................................................................................................... Origin Network Distribution Center. 

OBMC ................................................................................................................................................ ONDC. 

Return Bulk Mail Center .................................................................................................................... Return Network Distribution Center. 

RBMC ................................................................................................................................................. RNDC. 

In addition, we are revising the 

caption title of 39 CFR 121.1 to correctly 

capitalize the term ‘‘First-Class Mail.’’ 

The Postal Service adopts changes to 

Mailing Standards of the United States 

Postal Service, Domestic Mail Manual 

(DMM), incorporated by reference in the 

Code of Federal Regulations. See 39 

CFR 111.1. The Postal Service also 

amends 39 CFR Part 121. 

List of Subjects in 39 CFR Part 111 and 

121 

Administrative practice and 

procedure, Postal Service. 

■ Accordingly, 39 CFR Part 111 and 121 

are amended as follows: 

PART 111—[AMENDED] 

■ 1. The authority citation for 39 CFR 

Part 111 continues to read as follows: 

Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, 

401, 403, 404, 414, 416, 3001–3011, 3201– 

3219, 3403–3406, 3621, 3622, 3626, 3633, 

and 5001. 

[The USPS will process a global name 

substitution from ‘‘Bulk Mail Center’’ to 

‘‘Network Distribution Center,’’ from 

‘‘BMC’’ to ‘‘NDC,’’ from ‘‘Destination Bulk 

Mail Center’’ to ‘‘Destination Network 

Distribution Center,’’ from ‘‘DBMC’’ to 

‘‘DNDC,’’ from ‘‘Origin Bulk Mail Center’’ 

to ‘‘Origin Network Distribution Center,’’ 

from ‘‘OBMC’’ to ‘‘ONDC,’’ from ‘‘Return 

Bulk Mail Center’’ to ‘‘Return Network 

Distribution Center,’’ and from ‘‘RBMC 

to RNDC;’’ revising Mailing Standards of 

the United States Postal Service, 

Domestic Mail Manual (DMM) effective 

March 14, 2010. These revisions will 

not be separately itemized as a part of 

this document.] 

WReier-Aviles on DSKGBLS3C1PROD with RULES