`[Federal Register Volume 89, Number 224 (Wednesday, November 20, 2024)]
[Notices]
[Pages 91787-91802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27098]


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DEPARTMENT OF LABOR

Employee Benefits Security Administration


Retirement Savings Lost and Found

AGENCY: Employee Benefits Security Administration, Department of Labor.

ACTION: Announcement of voluntary information collection request.

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SUMMARY: This notice announces that the Office of Management and 
Budget's

[[Page 91788]]

Office of Information and Regulatory Affairs has approved under the 
Paperwork Reduction Act of 1995 an information collection request 
developed by the Department of Labor's Employee Benefits Security 
Administration (Department or EBSA). Accordingly, EBSA is now 
collecting information from retirement plan administrators (e.g., via 
their recordkeepers) in order to establish and maintain the Retirement 
Savings Lost and Found online searchable database described in section 
523 of the Employee Retirement Income Security Act of 1974. This 
database will help connect missing participants and other individuals 
who have lost track of their retirement benefits with retirement plans 
that may be holding such benefits. This information collection request 
is voluntary. This notice also provides guidance and announces an 
enforcement policy, both to incentivize and encourage the voluntary 
submission of data.

DATES: Information may be submitted immediately.

ADDRESSES: Information may be submitted at https://lostandfound-intake.dol.gov/.

FOR FURTHER INFORMATION CONTACT: For questions regarding how to submit 
data in response to this information collection request: contact 
Division of IT Operations Support, Office of Program Planning, 
Evaluation and Management, Employee Benefits Security Administration, 
(202) 693-8610. For general questions regarding section 523 of the 
Employee Retirement Income Security Act, contact Stephen Sklenar, 
Office of Regulations and Interpretations, Employee Benefits Security 
Administration, (202) 693-8500. These are not toll-free numbers.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

    The Department of Labor's Employee Benefits Security Administration 
(Department or EBSA) is now collecting information from retirement plan 
administrators in order to establish and maintain the Retirement 
Savings Lost and Found online searchable database described in section 
523 of the Employee Retirement Income Security Act of 1974 (ERISA). 
This database will help connect missing participants and other 
individuals who may have lost track of their retirement benefits with 
retirement plans that may be holding such benefits. This information 
collection request is voluntary.
    The information being collected is basic information about 
individuals of a certain age who may be owed benefits under ERISA 
retirement plans. Specifically, EBSA is requesting the name and social 
security number of any participant who separated from service, is owed 
a benefit from the plan, and is age 65 or older. EBSA also is asking 
for current contact information for the plan administrator so that 
individuals meeting these characteristics may contact the plan 
administrator and make an inquiry.
    The scope of this information collection request is very narrow. It 
is much narrower than what was previously proposed by the Department 
and what is ultimately going to be necessary to establish and maintain 
the complete database contemplated by section 523 of ERISA.\1\ The 
Department narrowed the scope of its proposal in response to public 
concerns that the proposal was overly broad and unnecessarily 
burdensome. As supported by commenters, the Department is starting its 
information collection efforts by focusing on information about 
individuals who are at or near normal retirement age and who are owed a 
benefit by the plan. This is because such individuals are more likely 
to benefit sooner from a functioning Retirement Savings Lost and Found 
database than other age cohorts. Future efforts through notice and 
comment, however, will be needed to gradually expand the database to 
fully implement section 523 of ERISA.
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    \1\ 89 FR 26932.
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II. Summary of Burden

    In summary, the final information collection request has a 3-year 
average hour burden of 26,017 hours with an equivalent cost of 
$4,660,421 and a cost burden of $0.\2\
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    \2\ The total burden for this information collection is 
estimated as an hour burden. The hour burden is measured as the time 
for recordkeepers to obtain authorization, the time for plan 
administrators to provide authorization to the recordkeepers, and 
the time for recordkeepers to provide data to the Retirement Savings 
Lost and Found database. Costs accounted for in the hour burden are 
not included in cost burden to avoid double counting, resulting in a 
cost burden of zero. The act of transmitting the data to the 
Retirement Savings Lost and Found is a cost burden but since that 
will occur electronically, the Department subsumed the minimal cost 
of that activity within the hour burden.
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    A summary of paperwork burden estimates follows:
    Type of Review: Revision.
    Agency: Employee Benefits Security Administration, U.S. Department 
of Labor.
    Title: Retirement Savings Lost and Found.
    OMB Control Number: 1210-0172.
    Affected Public: Businesses or other for-profits, Not-for-profit 
institutions.
    Estimated Number of Respondents: 150,920.
    Estimated Number of Annual Responses: 150,940.
    Frequency of Response: Annual.
    Estimated Total Annual Burden Hours: 26,017.
    Estimated Total Annual Burden Cost: $0.

III. Background

A. Section 303 of SECURE 2.0

    Section 303 of the SECURE 2.0 Act of 2022, which was enacted on 
December 29, 2022 (SECURE 2.0),\3\ amended part 5 of subtitle B of 
title I of ERISA to add Section 523, which requires the Department, not 
later than 2 years after the date of enactment and in consultation with 
the Secretary of the Treasury, to create an online searchable database, 
to be known as the Retirement Savings Lost and Found. Among other 
things, SECURE 2.0 requires that this database allow retirement savers 
who may have lost track of their retirement plan to search for the 
contact information of their plan administrator in order to make a 
claim for benefits that they may be owed under the plan.
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    \3\ Consolidated Appropriations Act, 2023, H.R. 2617.
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    Section 523(a) of ERISA expressly directs the Secretary to 
establish an online searchable database which, inter alia, allows an 
individual to locate information about a plan if the individual is or 
was a participant of that plan. Section 523(e) of ERISA expressly 
authorizes the Department to collect certain information for plan years 
beginning after December 31, 2023. For example, it authorizes the 
Department to collect the information described in sections 6057(b)(1) 
through (4) and 6057(a)(2)(A) and (B) of the Internal Revenue Code of 
1986 (Code). It also authorizes the Department to collect the names and 
social security numbers of participants and former participants 
described in Code section 6057(a)(2)(C) (i.e., individuals who 
separated from service covered under their plans and who are entitled 
to deferred vested benefits) and identify those who were fully paid 
their deferred vested benefits. Finally, it authorizes the Department 
to collect the names and social security numbers of each participant or 
former participant in the plan with respect to whom vested benefits 
were distributed under section 401(a)(31)(B) of the Code or to whom a 
deferred annuity contract was distributed.

B. IRS Form 8955-SSA

    Much of the foregoing information is currently reported to the 
Internal

[[Page 91789]]

Revenue Service (IRS) on Form 8955-SSA (Annual Registration Statement 
Identifying Separated Participants With Deferred Vested Benefits).\4\ 
The information reported on Forms 8955-SSA is generally provided by the 
IRS to the Social Security Administration (SSA). The SSA then provides 
the reported information to separated vested participants when they 
file for social security benefits. Pursuant to section 523(a) of ERISA, 
the Department consulted with the Secretary of the Treasury and IRS on 
the Retirement Savings Lost and Found online searchable database, and 
its ability to rely on the data reported on Form 8955-SSA to populate 
the database.
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    \4\ The Form 8955-SSA is the designated successor to Schedule 
SSA (Form 5500). The Schedule SSA attachment to the Form 5500 was 
the vehicle the IRS used to collect this information until the 
Schedule SSA was replaced by the stand-alone IRS Form 8955-SSA.
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    Initially, citing concerns under section 6103 of the Code,\5\ IRS 
indicated that it would not authorize the release of this data to the 
Department for the purpose of communicating either directly with 
participants and beneficiaries about retirement plans that may still 
owe them retirement benefits or indirectly through the Retirement 
Savings Lost and Found online searchable database. As explained below 
in section VII F of this notice, however, the Department believes the 
issues are now resolved and that it will be able to receive the 
information reported on Form 8955-SSA.
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    \5\ See 26 U.S.C. 6103 (confidentiality and disclosure of 
returns and return information).
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    Nevertheless, the Department is moving forward with the voluntary 
information collection request because of the uncertainties associated 
with the Form 8955-SSA data, concerns about the completeness and 
accuracy of that data, and the importance of complying with the 
statutory deadline contained in section 523 of ERISA. Accordingly, the 
Department continues to request that plan administrators voluntarily 
furnish the information specified below directly to the Department.

C. Terminated Vested Participants Project

    Separate from the database required by SECURE 2.0, the Department 
administers the Terminated Vested Participants Project (TVPP or missing 
participant program). The TVPP has three key objectives for defined 
benefit pension plans. First, to ensure these plans maintain adequate 
census and other records necessary to determine (a) the identity and 
address of participants and beneficiaries due benefits under the plan, 
(b) the amount of benefits due under the plan, and (c) when 
participants and beneficiaries are eligible to commence benefits. 
Second, to ensure these plans have appropriate procedures for advising 
participants with vested accrued benefits of their eligibility to apply 
for benefits as they near normal retirement age and the date they must 
start required minimum distributions under federal tax law. Third, to 
ensure these plans implement appropriate search procedures for 
terminated participants and beneficiaries for whom they have incorrect 
or incomplete information. Since 2017, the Department has recovered 
more than $7 billion for such ``missing'' participants and 
beneficiaries.

IV. April 2024 Proposed Information Collection Request

    On April 16, 2024, the Department published for notice and comment 
in the Federal Register a proposed information collection request 
(April 2024 Proposed ICR) setting forth a proposed framework for a 
voluntary information collection. The April 2024 Proposed ICR contained 
three broad categories of information, as follows: (1) Information From 
Plans With Separated Vested Participants; (2) Information From Plans 
That Distributed Benefits Under Section 401(a)(31)(B) of the Internal 
Revenue Code; and (3) Information From Plans That Distributed 
Annuities.\6\ The specific information in each category of the April 
2024 Proposed ICR is set forth below in Section IV. The Department 
received thirteen comment letters in response to the April 2024 
Proposed ICR. The commenters' concerns are addressed in Sections V-VII.
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    \6\ 89 FR 26932.
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A. Plans With Separated Vested Participants

    The April 2024 Proposed ICR, in relevant part, sought to collect 
the following information for any plan with a participant or former 
participant described in 26 U.S.C. 6057(a)(2)(C) (``separated vested 
participant''):
    1. Name and plan number of plan as reflected on the most recent 
Form 5500 Annual Return/Report of Employee Benefit Plan or Form 5500-SF 
Short Form Annual Return/Report of Employee Benefit Plan (individually 
and collectively ``Form 5500''). If the plan had names other than the 
name on the most recent Form 5500, provide the prior names and plan 
numbers and include the date of change.
    2. Name, employer identification number (EIN), mailing address, and 
telephone number of the plan administrator as reflected on the most 
recent Form 5500. If the plan had plan administrators other than the 
plan administrator on the most recent Form 5500, provide the names and 
EINs of the prior plan administrators and include the date of change.
    3. Name, EIN, mailing address, and telephone number of the plan 
sponsor as reflected on the most recent Form 5500, if different than 
the plan administrator. If the plan had plan sponsors other than the 
plan sponsor on the most recent Form 5500, provide the names and EINs 
of the prior plan sponsors and include the date of change.
    4. Name, date of birth, mailing address, email address, telephone 
number, and social security number (SSN) of each separated vested 
participant.
    5. Nature, form, and amount of benefit of each separated vested 
participant.
    6. If the vested benefit of each such separated vested participant 
was fully paid in a form other than an annuity (i.e., lump sum payout) 
to the separated vested participant, provide the date and the amount of 
the distribution.
    7. If an annuity form of benefit, state whether the separated 
vested participant has begun receiving benefits, the date of the 
annuity commencement, and the monthly benefit.
    8. Name, date of birth, mailing address, email address, telephone 
number, and SSN of any separated vested participant of normal 
retirement age or older who is owed a vested benefit, and who has been 
unresponsive to plan communications about their benefits or whose 
contact information as set forth in paragraph 4 above, the plan has 
reason to believe is no longer accurate.
    9. Name, date of birth, mailing address, email address, telephone 
number, and SSN of any designated beneficiary of the separated vested 
participant.
    10. With respect to any participant whose benefit was transferred 
to the plan in the manner described in Line 9 of the Form 8955-SSA, 
provide the name and plan number of the transferor plan. Include the 
date of transfer to the plan.

B. Plans That Distributed Benefits Under Section 401(a)(31)(B) of the 
Internal Revenue Code

    The April 2024 Proposed ICR, in relevant part, sought to collect 
the following information for any plan that

[[Page 91790]]

distributed benefits under section 401(a)(31)(B) of the Code:
    1. Name of plan and plan number as reflected on the most recent 
Form 5500. If the plan had names other than the name on the most recent 
Form 5500, provide the prior names and plan numbers to include the date 
of change.
    2. Name, EIN, mailing address, and telephone number of the plan 
administrator as reflected on the most recent Form 5500. If the plan 
had plan administrators other than the plan administrator on the most 
recent Form 5500, provide the names and EINs of the prior plan 
administrators and include the date of change.
    3. Name, EIN, mailing address, and telephone number of the plan 
sponsor as reflected on the most recent Form 5500, if different than 
the plan administrator. If the plan had plan sponsors other than the 
plan sponsor on the most recent Form 5500, provide the names and EINs 
of the prior plan sponsors and include the date of change.
    4. Name, date of birth, mailing address, email address, telephone 
number and SSN of each participant or former participant with respect 
to whom any amount of the vested benefit was distributed under section 
401(a)(31)(B) of the Code.
    5. With respect to such participant or former participant, the name 
of the designated trustee or issuer described in section 401(a)(31)(B) 
of the Code.
    6. With respect to such participant or former participant, the 
address of the designated trustee or issuer described in section 
401(a)(31)(B) of the Code.
    7. With respect to such participant or former participant, the 
amount of the distribution.
    8. With respect to such participant or former participant, the 
account number of the individual retirement plan to which the amount 
was distributed.
    9. With respect to such participant or former participant, the 
name, date of birth, mailing address, email address, telephone number, 
and SSN of any designated beneficiary.

C. Plans That Distributed Annuities

    The April 2024 Proposed ICR, in relevant part, sought to collect 
the following information for any plan that distributed benefits 
pursuant to an annuity contract described in 29 CFR 2510.3-3(d)(2)(ii):
    1. Name and plan number of plan as reflected on the most recent 
Form 5500. If the plan had names other than the name on the most recent 
Form 5500, provide the prior names and plan numbers to include the date 
of change.
    2. Name, EIN, mailing address, and telephone number of the current 
plan administrator as reflected on the most recent Form 5500. If the 
plan had plan administrators other than the plan administrator on the 
most recent Form 5500, provide the names and EINs of the prior plan 
administrators and include the date of change.
    3. Name, EIN, mailing address, and telephone number of plan sponsor 
as reflected on the most recent Form 5500, if different than the plan 
administrator. If the plan had plan sponsors other than the plan 
sponsor on the most recent Form 5500, provide the names and EINs of the 
prior plan sponsors and include the date of change.
    4. Name, date of birth, SSN, mailing address, email address, and 
telephone number of each participant or former participant with respect 
to whom an annuity contract, described in 29 CFR 2510.3-3(d)(2)(ii), 
was distributed.
    5. With respect to such participant or former participant, the name 
of the issuer of the annuity contract.
    6. With respect to such participant or former participant, the 
address of the issuer of the annuity contract.
    7. With respect to such participant or former participant, the 
contract or certificate number.
    8. With respect to such participant or former participant, the 
name, date of birth, mailing address, email address, telephone number, 
and SSN of any designated beneficiary.

D. Historical Data

    With respect to all three categories of information described above 
(in sections A through C), the April 2024 Proposed ICR sought historic 
information, to the extent available, dating back to the date the plan 
first became subject to ERISA or as far back as possible, if shorter. 
The Proposed ICR sought this data in an effort to establish the most 
effective Retirement Savings Lost and Found online searchable database 
possible.

E. Public Comments on April 2024 Proposal

    Nearly every commenter objected to the breadth of the April 2024 
Proposed ICR. One commenter, for instance, asserted that there is very 
little information the Department needs to build the Retirement Savings 
Lost and Found database contemplated by section 523 of ERISA. This 
commenter is of the view that ``the only information needed is the 
participant's name, the plan name and the plan's contact information, 
and any updates to the latter two.'' \7\ This commenter suggested that 
the Department reevaluate what actually is needed for the database to 
function and focus on collecting only that information.
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    \7\ Comment Letter of US Chamber of Commerce, page 3.
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    A different commenter asserted that, in many respects, the April 
2024 Proposed ICR goes beyond what the Department is expressly 
authorized to collect under section 523 of ERISA. This commenter also 
contended that the April 2024 Proposed ICR goes beyond ``what is 
reasonably necessary to ensure the proper administration and 
maintenance of the [Retirement Savings Lost and Found], as envisioned 
by Congress.'' \8\ This commenter suggested that, before moving on to 
additional services and functionality that might necessitate broader 
information requests, the Department should limit its information 
request to only those data elements that are necessary for participants 
to locate and receive information that is needed to access benefits 
owed them. In the commenter's view, such information did not include, 
for example, information regarding (a) beneficiaries; (b) participant 
and beneficiary contact information such as phone numbers, email 
addresses, and physical addresses; and (c) account balances.
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    \8\ Comment Letter of SPARK, page 2.
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    A third commenter stated that the April 2024 Proposed ICR asks plan 
administrators for an ``overwhelming'' amount of information beyond 
what is specifically authorized.\9\ Unauthorized and unnecessary 
information, according to this commenter, includes (a) plan sponsor 
information; (b) date of birth, mailing address, email address, and 
telephone number of the participant; (c) beneficiary information; and 
(d) historical information. This commenter believes that the April 2024 
Proposed ICR unnecessarily complicates what was supposed to be a basic 
online database, raising serious privacy and administration concerns. 
Accordingly, the commenter urged the Department to narrow the April 
2024 Proposed ICR and abandon the proposal.
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    \9\ Comment Letter of the ERISA Industry Committee, pp 2-3.
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    A fourth commenter stated that the April 2024 Proposed ICR requests 
significantly more information about participants and their 
beneficiaries than is authorized by the statute's limited list of data 
elements.\10\ This commenter also argued that the proposal requests 
data dating back to the date a plan became covered by ERISA, while the 
statue

[[Page 91791]]

specifically authorizes only the collection of information with respect 
to plan years beginning in 2024. In the commenter's view, the April 
2024 Proposed ICR impermissibly expanded both the data elements, and 
the time period covered. This commenter asserted that collecting and 
providing the additional data would be prohibitively expensive, placing 
an enormous cost and burden on plans and their recordkeepers--cost that 
may ultimately be passed on to plan participants. The commenter also 
expressed concern that the prospect of sharing participants' 
confidential and personal information raises significant data concerns, 
and could expose plans and their recordkeepers to liability, 
particularly in the event of any data breach.\11\ This commenter urged 
the Department to collect no more than the information specified by 
section 523(e) of ERISA.
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    \10\ Comment Letter of the Investment Company Institute, page 5.
    \11\ See also Comment Letter of American Retirement Association 
(sharing this concern), page 2.
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    Another commenter expressed its concern with the April 2024 
Proposed ICR's request for data on individuals that exceeds the data 
specifically described in the statute.\12\ This commenter stated that 
the statute contemplates the name and taxpayer identifying number of 
terminated vested participants whose benefits were distributed during 
the plan year, together with certain limited additional information 
such as whether an annuity was distributed to such an individual and 
the name and address of the annuity issuer. This commenter asserted 
that the more personal information the Department requests beyond what 
is necessary, the greater the potential liability if such data is 
compromised, and the greater the possibility that plans will not 
provide any information. This commenter encourages the Department not 
to proceed with any voluntary information collection request, but 
instead proceed directly to the rulemaking process and limit the 
information required to what is required by the statute.
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    \12\ Comment Letter of American Benefits Council, page 6.
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    This commenter also strongly objected to the historical information 
requested by the April 2024 Proposed ICR. This commenter argued that 
the statute does not contemplate requiring administrators to report the 
plan-related information described in Internal Revenue Code section 
6057(b)(1)-(4) or 6057(a)(2)(A)-(B) on a retroactive basis, let alone 
as far back as to the date a covered plan became subject to ERISA. This 
commenter submits that the re-creation of historical plan data by 
administrators would in many cases be exceedingly challenging and time-
consuming, and for some plans it will be impossible to produce.

V. September 2024 Revised Information Collection Request

A. Narrowed Scope of April 2024 Proposal

    In response to the public comments received on the April 2024 
Proposed ICR (discussed above in section IV E of this notice), the 
Department revised and republished the proposed ICR in September 2024 
again soliciting public input (September 2024 Revised ICR).\13\ As 
compared to the April 2024 Proposed ICR, the September 2024 Revised ICR 
proposed to significantly narrow the scope of collection to capture 
only information on separated vested participants who have reached age 
65 and who are owed a benefit, as well as basic contact information for 
the plan administrator. Information on separated vested participants 
under the second proposal in September included deceased participants 
who would have been age 65 or older if they had survived and whose 
beneficiary is entitled to a benefit; separated vested participants 
aged 65 or older whose benefits were conditionally forfeited under 
Treasury Regulation section 1.411(a)-4(b)(6); and separated vested 
participants aged 65 or older who are in pay status. The comment period 
for the September 2024 Revised ICR closed on October 15, 2024, and five 
comments on the September Revised ICR were received.
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    \13\ 89 FR 74291 (Sept. 12, 2024).
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B. Public Comments on Narrower Scope

    Overall, commenters supported the narrower scope of collection in 
the September 2024 Revised ICR. Commenters, however, continued to raise 
a number of concerns including with respect to cybersecurity risks. 
These comments and concerns are addressed below.

VI. Final Information Collection Request

A. Decision To Narrow Information Collection Request

    The Department does not agree with the position of those commenters 
described in Section IV.E who found it inappropriate for the Department 
to collect all of the information listed in the April 2024 Proposed 
ICR. Nevertheless, the Department generally agrees to structure the 
final information collection request to reduce cost and burden on 
responders in order to encourage participation. The Department has 
significantly narrowed the scope of the final information collection 
request in response to public comments. Generally speaking, this final 
information collection request is limited to the current contact 
information for the plan as well as the name and social security number 
of any participant who separated from service, is owed a benefit, and 
is age 65 or older. In this regard, the scope of the final information 
collection request is very similar to the scope of the September 2024 
Revised ICR, with a few improvements made in response to public 
comments received on the September proposal.
    Subsection VI B of this notice delineates the precise data points 
being sought under the final ICR. Unlike the April 2024 Proposed ICR, 
this final information collection request does not seek, among other 
things, data on: (a) historical practices dating back to the date the 
covered plan became subject to ERISA; (b) beneficiaries; (c) date of 
birth, mailing address, email address, and telephone number of each 
separated vested participant; (d) benefits distributed under section 
401(a)(31)(B) of the Internal Revenue Code; and (e) benefits 
distributed pursuant to an annuity contract described in 29 CFR 2510.3-
3(d)(2)(ii).
    As supported by commenters, the Department is starting its 
information collection efforts by focusing on information about 
individuals who are at or near normal retirement age and who are owed a 
benefit by the plan. This is because such individuals are more likely 
to benefit sooner from a functioning database than other age cohorts. 
Future efforts, however, are needed to gradually expand the database to 
fully implement section 523 of ERISA. At this time, the Department is 
requesting only the following specific information.

B. Specific Information Requested--Limited to Plans With Separated 
Vested Participants Still Owed Benefits

    For any plan with a participant or former participant described in 
26 U.S.C. 6057(a)(2)(C)(i) and (ii) (``separated vested participant''), 
provide the following information with respect to that plan in 
accordance with filing instructions created by the Department:
    1. Name and plan number of plan as reflected on the most recent 
Form 5500 Annual Return/Report of Employee Benefit Plan or Form 5500-SF 
Short Form Annual Return/Report of

[[Page 91792]]

Employee Benefit Plan (individually and collectively ``Form 5500'').
    2. Name, employer identification number (EIN), mailing address, and 
telephone number of the plan administrator as reflected on the most 
recent Form 5500.
    3. Name, EIN, and telephone number of the plan sponsor as reflected 
on the most recent Form 5500.
    4. Name and SSN of any separated vested participant aged 65 (or 
older) who is owed a vested benefit. This includes deceased 
participants who would have been age 65 or older if they had survived 
and whose beneficiary is entitled to a benefit; separated vested 
participants aged 65 or older whose benefits were conditionally 
forfeited under Treasury Regulation section 1.411(a)-4(b)(6); and 
separated vested participants aged 65 or older who are in pay status.
    5. With respect to participants previously reported to the 
Retirement Savings Lost and Found as owed a benefit that has since been 
paid, indicate once their benefit has been paid and the date of the 
payment.

C. Scope--Beneficiaries

    Commenters on the September 2024 Revised ICR objected to collecting 
information about beneficiaries. Commenters stated that information 
about beneficiaries is beyond the scope of section 523 of ERISA. The 
Department does not agree that information about beneficiaries is 
outside the scope of section 523 of ERISA. Regardless, the commenters 
misapprehended the scope of the September 2024 Revised ICR. Neither it 
nor the final ICR seeks to collect information about beneficiaries. The 
final ICR, however, does request data on deceased participants who 
still have benefits under the plan so that the deceased participant's 
beneficiary or survivor may use the Retirement Savings Lost and Found 
to search for that benefit.

D. Scope--Participants in Pay Status

    Commenters questioned why the September 2024 Revised ICR sought to 
collect information on separated vested participants aged 65 or older 
who are in pay status in defined benefit plans. Commenters asserted 
that individuals in pay status are not ``missing'' or ``lost.'' The 
final ICR seeks this information because these individuals are still 
owed a benefit under the plan. ERISA section 523 includes missing and 
lost individuals but is not limited to them.

E. Scope--Church Plans

    One commenter on the September 2024 Revised ICR asked whether the 
Department intends the final ICR to cover non-electing church plans. 
The scope of the final ICR is coextensive with the scope of section 523 
of ERISA. Section 523(a)(2) of ERISA generally limits the scope of 
section 523 to ``a plan to which the vesting standards of section 203 
apply.'' Since non-electing church plans are not subject to section 203 
of ERISA, the final ICR does not cover such plans.

F. Method of Transmitting Data

    The April 2024 Proposed ICR solicited public comment on two 
electronic methods to submit data to Retirement Savings Lost and Found. 
Under the first method, plan administrators (or their authorized 
representatives, such as recordkeepers) would be able to electronically 
submit data as an attachment to the Form 5500 using EFAST2. The second 
method mentioned was the establishment of a portal for plan 
administrators (or their recordkeepers) to submit the information 
directly into the Retirement Savings Lost and Found database as an 
alternative to submitting the information as an attachment to the Form 
5500 using EFAST2. Under either method, the April 2024 Proposed ICR 
indicted that the Department would provide a model format that plan 
administrators could use to submit the information.
    Overall, commenters offered support for both methods of 
electronically submitting the data. While generally supportive of the 
use of EFAST2, commenters questioned the feasibility of being able to 
submit a Retirement Savings Lost and Found attachment in time to meet 
the plan's deadline for filing the plan's 2023 Form 5500. Some 
commenters, noting that the Form 5500 is filed annually, suggested that 
the Retirement Savings Lost and Found data should be furnished more 
frequently than annually in order to keep the Retirement Savings Lost 
and Found current, e.g., at least quarterly. Some commenters raised 
privacy concerns with attaching certain Retirement Savings Lost and 
Found data (social security numbers) to the Form 5500 (which is a 
public filing). Other commenters expressed a preference for a direct 
upload portal for plan recordkeepers to submit information directly 
into the Retirement Savings Lost and Found database because this method 
would permit a single recordkeeper to submit bulk uploads on behalf of 
multiple plans simultaneously and would allow frequent uploads on 
regular basis, e.g., quarterly, monthly, or even more frequently, so 
that the Retirement Savings Lost and Found does not become stale.
    The Department established a portal for plan administrators or 
their recordkeepers to submit the information directly into the 
Retirement Savings Lost and Found database, instead of submitting the 
information as an attachment to the Form 5500 using EFAST2 as was 
contemplated by the April 2024 Proposed ICR. The Department also 
created an upload template to assist filers.\14\ The template is a 
table, in Microsoft Excel/CSV format, designed to capture details on 
separated vested participants who have reached age 65 and who are owed 
a benefit, and basic information about their plans. The plan 
administrator or the plan's recordkeeper may download, populate, and 
then upload the completed Excel/CSV file directly with EBSA through 
RSFL. This direct portal approach allows recordkeepers to file on 
behalf of multiple plans simultaneously. RSFL requires filers to have a 
free Login.gov account, and to create a user profile. The Department 
has also developed line-by-line instructions to guide filers through 
the process.\15\ The upload template and instructions are available at 
https://lostandfound-intake.dol.gov/template.xlsx.
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    \14\ See appendix A.
    \15\ See appendix B.
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    Many commenters discussing the topic of transmitting data to the 
Retirement Savings Lost and Found also mentioned concerns about data 
security after the transfer. In response, the Department notes that the 
Retirement Savings Lost and Found is being developed in accordance with 
the U.S. Department of Commerce National Institute of Standards and 
Technology SP 800-53 Revision 5 security controls, including 
implementation of all applicable privacy controls.\16\ Retirement 
Savings Lost and Found administrators will use the Department's login 
credential practices to access the Retirement Savings Lost and Found, 
including Multi-Factor Authentication login and Single Sign-On account 
access via Personal Identity

[[Page 91793]]

Verification certificate authentication. Public users (search users) 
will require Login.gov credentials to access the Retirement Savings 
Lost and Found. Top industry standards for data encryption will be used 
to encrypt data while at rest \17\ and in transit.\18\
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    \16\ To include AC-03(14)--Individual Access; PL-08--Security 
and Privacy Architectures; PT-05(2)--Privacy Act Statements; RA-08--
Privacy Impact Assessments; SC-07(24)--Personally Identifiable 
Information; SI-12--Information Management and Retention; SC-28--
Protection of Information at Rest; SC-28(1)--Cryptographic 
Protection. Additional information on individual security and 
privacy controls is available on the NIST Cybersecurity and Privacy 
Reference Tool web page, https://csrc.nist.gov/projects/cprt/catalog#/cprt/framework/version/SP_800_53_5_1_1/home.
    \17\ While at rest, the Amazon RDS encrypted DB instances will 
use the industry standard AES-256 encryption algorithm to encrypt 
the data on the server that hosts the Amazon RDS DB instances.
    \18\ In transit, data passed from the user to the application 
will be protected via standard HTTPS/SSL encryption and data from 
the database to the application will be protected by TLS encryption.
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VII. Miscellaneous

A. Fiduciary Duty To Mitigate Cybersecurity Risk

    Several commenters raised concerns about data security and their 
potential exposure to liability under ERISA in the event of a future 
data breach involving the Retirement Savings Lost and Found. The 
commenters acknowledged that fiduciaries have an obligation under 
section 404 of ERISA to take prudent measures to protect participants' 
personal information and mitigate cybersecurity risks. The commenters 
stated that the April 2024 Proposed ICR and the September 2024 Revised 
ICR both had failed to provide sufficient information about the 
Retirement Savings Lost and Found's security features to enable plan 
fiduciaries to prudently conclude that furnishing the information 
described in the proposals would not constitute a breach of ERISA's 
fiduciary duties. The commenters concluded that this may prevent a 
significant number of plans from responding to the voluntary 
information collection request. The commenters requested a detailed 
description of the Retirement Savings Lost and Found's security 
protocols and asked that the Department agree to indemnify and 
otherwise make whole plans and their recordkeepers for losses that 
occur as result of a data security failure attributable to the 
Retirement Savings Lost and Found.
    The Department agrees with these commenters that responsible plan 
fiduciaries have an obligation to ensure proper mitigation of 
cybersecurity risks, which includes using only services that follow 
strong cybersecurity practices. The Department had not finished 
constructing the security protocols at the time of publication of the 
September 2024 Revised ICR. A more fulsome description, however, now is 
contained in Section VI F, above, of this notice.
    The Department has taken great care to ensure the security and 
confidentiality of participant data and reassures plan fiduciaries that 
if they voluntarily furnish data in response to this information 
collection request and follow the instructions for transmitting the 
data to the Department, they will have satisfied their duty under 
section 404 of ERISA to ensure proper mitigation of cybersecurity 
risks. Accordingly, plan fiduciaries' submission of data to the 
Retirement Savings Lost and Found in accordance with the system's 
instructions on submissions will not violate fiduciaries' duties of 
prudence and loyalty, but rather would promote participant interests in 
securing promised benefits in accordance with those obligations. Such 
plan fiduciaries will not be subject to liability under ERISA for the 
Department's conduct in the event of a future security failure 
involving Retirement Savings Lost and Found. In light of this opinion, 
the Department need not address the commenters' request for 
indemnification.

B. State Privacy Laws

    Several commenters requested that the Department address the 
interaction of state privacy laws with this voluntary information 
collection request. They raised concerns about potential liability 
under ERISA's fiduciary provisions and state law in connection with 
voluntarily furnishing certain personal information (e.g., name, social 
security number, telephone number, date of birth, mailing address) 
under this information collection request without first obtaining 
participant consent.
    The Department notes that section 523(e) of ERISA explicitly 
authorizes the Department to collect, among other information, the 
``name and taxpayer identifying number'' of affected participants or 
former participants. The Department also observes, however, that state 
privacy laws vary in their scope and application, it is unclear whether 
any apply in the specific circumstances at hand, and commenters 
acknowledged such laws often contain an exemption for information 
provided to government authorities to comply with a regulatory inquiry. 
No commenter suggested that the Department is not a government 
authority or that the Retirement Savings Lost and Found is not a proper 
regulatory function in light of section 523 of ERISA.
    Further, the Department narrowed this voluntary information 
collection request to two pieces of sensitive data--the participant's 
name and social security number--both of which the plan has already 
reported to the federal government under section 6057 of the Code for 
purposes aligned with and integrated with the Retirement Savings Lost 
and Found. In any event, the Department will not take enforcement 
action under ERISA against any plan fiduciary, or recordkeeper or other 
party acting on behalf of the plan, for responding to this information 
collection request without first obtaining participant consent to the 
extent required by state law provided that the plan fiduciary acts 
reasonably and in good faith in responding to this information 
collection request.\19\ The Department believes this enforcement 
policy, in combination with the narrower scope of the revised 
information collection request and participants' right to opt out of 
Retirement Savings Lost and Found, discussed in sections VI and VII of 
this notice, below, addresses the commenters' concerns. However, 
individuals with residual concerns or unique circumstances are 
encouraged to contact the Department directly for additional 
assistance.
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    \19\ However, no party acting on behalf of a plan may furnish 
information in response to this information collection request 
without the approval or consent of a responsible plan fiduciary.
---------------------------------------------------------------------------

C. User Authentication as Protection

    Some commenters raised concerns that establishing a publicly 
accessible online searchable database storing sensitive personal 
information, such as social security numbers or information regarding 
retirement account balances, introduces the risk that this information 
will be disclosed to an unintended audience or possibly used for fraud. 
Generally, these commenters urged the Department to limit information 
returned from a search of the Retirement Savings Lost and Found to that 
related to the individual conducting the search and to prevent data 
``scraping,'' a process used by certain ``property finders,'' 
``recovery agents,'' ``heirfinders,'' and other data aggregators to 
mass collect information using other publicly accessible databases such 
as those used to search state unclaimed property funds. The Department 
understands these concerns and incorporated limitations to the search 
function to address this risk, such as requiring an authenticated 
account for each user searching the Retirement Savings Lost and Found 
and producing search results particularized to that account holder. 
Unlike other publicly available property search tools and engines, no 
general list of information will be accessible for the public to view. 
As such, the risk for unintended disclosure, or fraud using information 
collected from the Retirement Savings Lost and Found, is thoroughly 
mitigated.

[[Page 91794]]

D. Use of Plan Assets To Pay Cost of Voluntary Reporting

    Commenters requested clarification regarding whether, and the 
extent to which, plan assets may be used, consistent with ERISA's 
fiduciary duties, to pay the cost of voluntary reporting. Commenters 
mentioned that such cost includes the cost associated with collecting, 
formatting, and transmitting the data, and that the scope of the final 
ICR obviously will impact costs. In the Department's view, the 
reasonable cost of voluntarily reporting the data under the revised ICR 
is a permissible use of plan assets because the purpose of the 
reporting is to connect separated vested participants with benefits 
owed them under the plan.

E. Participants' Opt-Out Rights

    Commenters requested clarification on how participants may exercise 
their statutory right to opt-out of Retirement Savings Lost and Found. 
Section 523(c)(2) of ERISA provides that in establishing the Retirement 
Savings Lost and Found, the Department, in consultation with the 
Secretary of the Treasury, shall take all necessary and proper 
precautions to ``allow any individual to contact the Secretary to opt 
out of inclusion in the Retirement Savings Lost and Found.'' Commenters 
observed that the Proposed ICR did not describe an opt-out mechanism or 
procedure.
    The Department considered a number of options to enable 
participants to exercise this statutory right in a convenient and easy-
to-use mechanism for participants of all ages, backgrounds, and 
abilities. Initially, participants may opt out online by submitting a 
request at https://www.dol.gov/agencies/ebsa/about-ebsa/ask-a-question/ask-ebsa. Instructions will guide the participant. If a participant 
chooses to opt out of the Retirement Savings Lost and Found, the 
participant's data will be suppressed from appearing in searches of the 
Retirement Savings Lost and Found. The participant's decision will be 
documented and referred to database administrators for execution. The 
Department is also considering adding an online self-service opt out 
feature directly to the Retirement Savings Lost and Found, but this 
option is not available now.

F. Alternatives to the Voluntary Information Collection Request

    Commenters recommended the Department consider alternative methods 
for implementing the Retirement Savings Lost and Found. One commenter 
suggested that the Department consider hiring a private sector 
contractor to operate the Retirement Savings Lost and Found. Another 
commenter stated its concern that the voluntary ICR approach to 
populating the Retirement Savings Lost and Found with information will 
compromise the content and effectiveness of the Retirement Savings Lost 
and Found and, thus, the Department should abandon its current approach 
and instead proceed to formal notice and comment rulemaking.
    The Department declines to abandon its current approach. The 
current approach gives the Department the best chance to comply with 
the Congressional directive in a timely manner. Under its current 
approach, the Department has substantially reduced the burden of 
responding to the ICR. In addition, the current approach does not 
foreclose the Department from making improvements to the Retirement 
Savings Lost and Found in the future. The Department will take the 
comments received on the ICR into consideration regarding any future 
improvements.
    In response to commenters' requests that the Department continue to 
work with IRS, SSA, or both, to obtain Form 8955-SSA information 
directly from those agencies instead of requesting such information 
from plan administrators, the Department notes that it has continued 
its discussions with both agencies and believes it will be able to use 
the Form 8955-SSA data. The Department notes, however, that the Form 
8955-SSA data may often be inaccurate, outdated, or incomplete.\20\ For 
instance, current recordkeeper data can show if benefits have been paid 
out, whereas Form 8955-SSA data likely cannot. Access to payout data is 
critical to keep the Retirement Savings Lost and Found current and 
reduce the instances of ``false positive'' search results mentioned by 
the commenters. These commenters strongly encouraged the Department to 
make every possible effort to maintain as up-to-date information as 
possible so that the public has confidence in the integrity of 
Retirement Savings Lost and Found. To that end, even if Form 8955-SSA 
data is received, such data would stand to benefit if supplemented by 
current recordkeeper data. The minimal voluntary data collection 
requested here will enable plans and plan sponsors to ensure the 
accuracy of information contained in the database. Accurate data will 
serve the interests of both plans and plan participants in obtaining 
benefits to which they are truly entitled and in avoiding search 
efforts and inquiries to plans and plan sponsors based on erroneous 
information. As noted above, the current approach also gives the 
Department the best chance to comply with the Congressional directive 
in a timely manner.
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    \20\ United States Government Accountability Office, Report GAO-
14-92 (Nov. 2013), Private Pensions: Clarity of Required Reports and 
Disclosures Could be Improved.
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G. Multi-Vendor Plans

    Commenters raised a concern with what they described as ``multi-
vendor'' situations. Commenters explained that this occurs when a plan 
has more than one recordkeeper, such as in the case of ERISA-covered 
403(b) plans. Commenters stated that the Department did not address 
this situation in the April 2024 Proposed ICR or the September 2024 
Revised ICR. Commenters are concerned that the Retirement Savings Lost 
and Found may not be able to intake and integrate more than one upload 
template for a single plan. The Department understands this issue and 
confirms that the Retirement Savings Lost and Found is able to 
accommodate multiple filings from different recordkeepers for the same 
plan.

H. Failure To Reflect Payments

    Commenters raised concerns about what they described as ``false 
positives.'' They described this as the potential for Retirement 
Savings Lost and Found searches to indicate that participants are owed 
previously distributed benefits if the Retirement Savings Lost and 
Found is not updated to reflect distributions. These commenters 
requested that the Department establish a mechanism for filers to 
submit data indicating that a participant has been paid their benefits. 
Otherwise, RSFL would show false positives, leading to confusion. These 
commenters suggested that the Department remove participants from the 
Retirement Savings Lost and Found once benefits are paid.
    The Department agrees with these comments on the need to reduce 
confusion and is taking the following actions. Two data elements are 
being added to the Retirement Savings Lost and Found upload template in 
Columns V and W. These modifications permit the filer to indicate (1) 
whether the present value of the total accrued benefit has been paid 
and (2) the date of payment. In addition, when searchers run queries, 
Retirement Savings Lost and Found results will display the payment 
information captured in these new fields, if applicable. This outcome 
will mitigate the concerns raised by the commenters.

[[Page 91795]]

I. Use of Information Collected

    One commenter expressed concern that the Department would use 
information collected under the ICR to audit plans. Information 
collected under the ICR is considered information collected under 
section 523 of ERISA. Section 523(f) of ERISA imposes limits on how the 
Department uses information collected under section 523. The Department 
will respect the limitations in section 523(f) in connection with 
information obtained under the ICR.

J. Use of Other Authorities Under ERISA To Collect Information

    Some commenters requested that the Department retract previously 
made statements that it has the authority to collect information 
through investigations and under a general grant of rulemaking 
authority. The Department declines to retract the statements. See 
sections 504 and 505 of ERISA. Questions regarding the Department's 
investigative authority and its general rulemaking authority are beyond 
the scope of this ICR.

K. Fiduciary Duty--Guidance on Missing Participants

    One commenter requested that the Department issue guidance 
regarding the steps a plan fiduciary must take under section 404 to 
search for ``missing'' participants. This commenter's request is 
outside the scope of the ICR. In this connection, however, the 
Department notes that it has given extensive guidance with respect to 
missing participants, which can be found on its website.\21\ If there 
are questions regarding that guidance or additional guidance needed on 
issues related to missing participants, interested parties should 
contact the Department with their questions or requests.
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    \21\ See Compliance Assistance Release 2021-01; Best Practices 
for Pension Plans; and EBSA Field Assistance Bulletin 2021-01 
(https://www.dol.gov/agencies/ebsa/employers-and-advisers/plan-administration-and-compliance/retirement/missing-participants-guidance).

    Signed at Washington, DC, this 14th day of November, 2024.
Lisa M. Gomez,
Assistant Secretary, Employee Benefits Security Administration, U.S. 
Department of Labor.
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[FR Doc. 2024-27098 Filed 11-19-24; 8:45 am]
BILLING CODE 4510-29-C`