Federal Register / Vol. 90, No. 9 / Wednesday, January 15, 2025 / Rules and Regulations 3667 

concerned individuals, with some 39 

organizations or individuals presenting 

their perspectives in the hearings 

(Document ID 2153; 2156; 2168; 2171). 

The presiding Administrative Law Judge 

permitted stakeholders to submit posthearing comments and briefs until May 

23, 2022. OSHA received nearly 150 

additional comments from stakeholders 

during the post-hearing comment 

period. In total, over the three different 

comment periods, OSHA received 873 

timely public comments on this 

rulemaking. 

OSHA submitted a draft final COVID– 

19 rule to the White House Office of 

Management and Budget (OMB) on 

December 7, 2022. On April 10, 2023, 

President Biden signed into law House 

Joint Resolution 7, which terminated the 

national emergency related to the 

COVID–19 pandemic. While the 

COVID–19 draft remained under review 

at OMB, OSHA pushed ahead with 

development of an Infectious Diseases 

standard for healthcare workers. 

Basis for Terminating the Rulemaking 

OSHA always intended for an 

Infectious Diseases standard for 

healthcare workers to supplant any 

COVID–19 healthcare standard, and that 

a COVID–19 standard would be an 

interim measure pending the 

completion of the Infectious Diseases 

healthcare standard. OSHA concludes 

that the most effective and efficient use 

of agency resources to protect healthcare 

workers from occupational exposure to 

COVID–19, as well as a host of other 

infectious diseases, is to focus its 

resources on the completion of an 

Infectious Diseases rulemaking for 

healthcare rather than a disease-specific 

standard. 

In addition, even if OSHA were to 

finalize a separate COVID–19 standard 

at this time, the agency would need to 

conduct an additional review and 

possibly supplement the record again 

before it could issue a final rule to 

ensure the rule reflects the most current 

science. For example, guidance from the 

Centers for Disease Control and 

Prevention and other experts has 

changed since OSHA submitted its draft 

rule to OMB. Moreover, focusing on a 

separate COVID–19 standard would 

likely consume agency staff time and 

other agency resources in a way that 

would inhibit the promulgation of a 

more broadly protective Infectious 

Diseases healthcare standard. For these 

independently sufficient reasons, OSHA 

is terminating this rulemaking. In sum, 

the agency will have a greater impact at 

this time by adopting a standard that 

would provide protections to healthcare 

workers from occupational exposure to 

many different infectious diseases, 

including COVID–19 and future 

variants. 

List of Subjects in 29 CFR Part 1910 

COVID–19, Disease, Health facilities, 

Health, Health care, Incorporation by 

reference, Occupational health and 

safety, Public health, Quarantine, 

Reporting and recordkeeping 

requirements, Respirators, SARS–CoV– 

2, Telework, Vaccines, Viruses. 

Authority and Signature 

Douglas L. Parker, Assistant Secretary 

of Labor for Occupational Safety and 

Health, authorized the preparation of 

this document under the authority 

granted by sections 4, 6, and 8 of the 

Occupational Safety and Health Act of 

1970 (29 U.S.C. 653, 655, 657); 5 U.S.C. 

553, Secretary of Labor’s Order No. 8– 

2020 (85 FR 58393), and 29 CFR part 

1911. 

Signed at Washington, DC. 

Douglas L. Parker, 

Assistant Secretary of Labor for Occupational 

Safety and Health. 

[FR Doc. 2025–00632 Filed 1–13–25; 11:15 am] 

BILLING CODE 4510–26–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

29 CFR Part 2550 

[Application No. D–11799] 

RIN 1210–ZA23 

Prohibited Transaction Exemption 

(PTE) 2002–51 To Permit Certain 

Transactions Identified in the 

Voluntary Fiduciary Correction 

Program 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Exemption amendment. 

SUMMARY: This document amends 

Prohibited Transaction Exemption 

2002–51, an exemption for certain 

transactions identified in the 

Department of Labor’s Voluntary 

Fiduciary Correction Program (VFC 

Program or Program). The VFC Program 

is designed to encourage correction of 

fiduciary breaches and compliance with 

the law by permitting persons to avoid 

potential Department of Labor civil 

enforcement actions and civil penalties 

if they voluntarily correct eligible 

transactions in a manner that meets the 

requirements of the Program. PTE 2002– 

51 is a related class exemption that 

allows excise tax relief from excise taxes 

imposed by the Internal Revenue Code 

of 1986, as amended, for certain eligible 

transactions corrected pursuant to the 

VFC Program. This amendment to PTE 

2002–51 is being finalized in connection 

with the Department’s amendment and 

restatement of the VFC Program, 

published elsewhere in this issue of the 

Federal Register (2025 VFC Program). 

These amendments simplify and expand 

the VFC Program and exemptive relief 

to make the Program and exemption 

easier to use and more useful for 

employers and others who wish to avail 

themselves of the relief provided. The 

amendment to PTE 2002–51 affects 

plans, participants and beneficiaries of 

such plans, and certain other persons 

engaging in such transactions. 

DATES: This amendment will be in effect 

on March 17, 2025. 

FOR FURTHER INFORMATION CONTACT: 

Emily Harris, Office of Exemption 

Determinations, Employee Benefits 

Security Administration, U.S. 

Department of Labor, telephone number 

(202) 693–8540. Brian J. Buyniski or 

Yolanda Wartenberg, Office of 

Regulations and Interpretations, 

Employee Benefits Security 

Administration (EBSA), (202) 693–8500, 

for questions regarding the VFC Program 

amendments. James Butikofer, Office of 

Research and Analysis, EBSA, (202) 

693–8410, for questions regarding the 

regulatory impact analysis. (These are 

not toll-free numbers.) 

For general questions regarding the 

VFC Program: contact Dawn MiatechPlaska, Office of Enforcement, EBSA, 

(202) 693–8691. For questions regarding 

specific applications and selfcorrections under the VFC Program: 

contact the appropriate EBSA Regional 

Office listed in appendix C to the 2025 

VFC Program. (These are not toll-free 

numbers.) 

Customer Service Information: 

Individuals interested in obtaining 

information from the Department 

concerning the Employee Retirement 

Income Security Act of 1974 (ERISA) 

and employee benefit plans may call the 

Employee Benefits Security 

Administration’s Toll-Free Hotline, at 

1–866–444–EBSA (3272) or visit the 

Department’s website (www.dol.gov/ 

ebsa). 

SUPPLEMENTARY INFORMATION: 

Background 

History of the VFC Program and Class 

Exemption 

The VFC Program gives plans and 

fiduciaries a ready means to correct 

violations of ERISA, without the 

transaction costs and burden associated 


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3668 Federal Register / Vol. 90, No. 9 / Wednesday, January 15, 2025 / Rules and Regulations 

1Under Reorganization Plan No. 4 of 1978, 5 

U.S.C. App., the authority of the Secretary of 

Treasury to issue exemptions pursuant to Code 

section 4975 was transferred, with certain 

exceptions not relevant here, to the Secretary of 

Labor. 

2 67 FR 15062 (March 28, 2002); 70 FR. 17516 

(April 6, 2005); 71 FR. 20262 (April 19, 2006). 

3 5 U.S.C. App. 

4 87 FR 71164 (Nov. 21, 2022). 

5 87 FR 70753 (Nov. 21, 2022). 

6Enacted on December 29, 2022, as Division T of 

the Consolidated Appropriations Act, 2023, Public 

Law 117 328, 136 Stat. 4459 (2022). 

7As described in Rev. Proc. 2021–30, or any 

successor guidance). 

8The term pension plans include both defined 

contribution plans and defined benefit plans. See 

ERISA section 3(34) and 3(35). 

with enforcement actions for violations 

of the fiduciary standards in title I of 

ERISA. As an enforcement policy, the 

VFC Program simultaneously promotes 

compliance with the law, correction of 

violations, and the efficient use of 

scarce enforcement resources. The 

Department also has the authority under 

ERISA section 408(a) to issue 

exemptions from the prohibited 

transaction rules in ERISA sections 406 

and 407 and Internal Revenue Code 

(Code) section 4975.1 Accordingly, in 

tandem with an amendment to the VFC 

Program published elsewhere in this 

issue of the Federal Register, the 

Department is publishing this associated 

amendment to Prohibited Transaction 

Exemption (PTE) 2002–51, which 

implements important components of 

the VFC Program. 

The Department of Labor’s Employee 

Benefits Security Administration 

(EBSA) originally adopted the VFC 

Program in 2002, and later revised it in 

2005 and 2006.2 EBSA designed the 

VFC Program to encourage employers 

and plan fiduciaries to voluntarily 

comply with ERISA and allow those 

potentially liable for certain specified 

fiduciary breaches under ERISA to 

voluntarily apply for relief from 

enforcement actions and certain 

penalties, provided they meet the VFC 

Program’s criteria and follow the 

procedures outlined in the VFC 

Program. 

The VFC Program describes how to 

apply for relief and lists the specific 

transactions covered and the acceptable 

methods for correcting fiduciary 

breaches under the Program. The most 

frequently corrected transaction under 

the Program is the correction of 

delinquent participant contributions. 

The Program provides a model 

application form, a checklist, and an 

online calculator for determining 

amounts to be restored to plans. The 

VFC Program has been, and will 

continue to be, administered in EBSA’s 

Regional Offices. 

The Department granted PTE 2002–51 

in connection with the VFC Program. 

Some of the breaches that may be 

corrected under the VFC Program are 

also prohibited transactions subject to 

excise tax under Code section 4975. 

Reorganization Plan No. 4 of 1978 

transferred the authority of the Secretary 

of Treasury to issue exemptions from 

the prohibited transaction provisions of 

Code section 4975 to the Secretary of 

Labor.3 The exemption allows excise tax 

relief for certain specified breaches 

under the VFC Program. PTE 2002–51 is 

subject to several general conditions, 

including that the breach be 

appropriately corrected and the party 

applying must satisfy all the conditions 

of the VFC Program. The exemption also 

includes certain transaction-specific 

conditions. 

2022 Proposal 

On November 21, 2022, the 

Department published in the Federal 

Register proposed revisions to the VFC 

Program with a request for public 

comments.4 The 2022 VFC Program 

proposed revisions would establish a 

self-correction feature for certain 

delinquent participant contributions 

and loan repayments to pension plans 

(the SCC). On the same date, the 

Department also published in the 

Federal Register a proposed amendment 

to PTE 2002–51 that would make certain 

conforming amendments to the class 

exemption.5 The Department received 

seven comments on the proposed 

amendment. 

On February 14, 2023, the Department 

reopened the comment period on both 

the 2022 Program VFC Program 

proposed revisions and the proposed 

amendment to PTE 2002–51 in light of 

section 305(b)(2) of the SECURE 2.0 Act 

of 2022 (SECURE 2.0 Act.6 This 

provision requires the Department to 

treat eligible inadvertent failures related 

to participant loans that are selfcorrected under the Employee Plans 

Compliance Resolution System 7 (IRS’s 

EPCRS) as meeting the requirements of 

the VFC Program ‘‘if, with respect to the 

violation of the fiduciary standards of 

the ERISA, there is a similar loan error 

eligible for correction under EPCRS and 

the loan error is corrected in such 

manner.’’ The Department requested 

comments on what revisions, if any, it 

should make to the VFC Program and 

exemption to reflect the treatment of 

corrections of loans to participants as 

described in SECURE 2.0 Act. Only one 

commenter addressed PTE 2002–51 in 

response and stated that no further 

amendments are required to the 

exemption. 

2025 VFC Program 

The Department is finalizing the 

amendment to the VFC Program 

elsewhere in this edition of the Federal 

Register. With these amendments, EBSA 

intends to facilitate more efficient and 

less costly corrections of fiduciary 

breaches under the VFC Program, 

encourage greater participation in the 

VFC Program, and respond to requests 

from stakeholders for adjustments based 

on their experiences using the VFC 

Program. In this regard, the amendments 

are designed to simplify the VFC 

Program and make it easier to use by 

employers and others who wish to avail 

themselves of the relief provided. 

Notably, the new self-correction 

procedures will apply to the transaction 

most frequently corrected under the 

VFC Program—the delinquent 

transmittal of participant contributions 

and loan repayments to pension plans— 

as well as to certain participant loan 

failures that are self-corrected under the 

IRS’s EPCRS. The Department 

anticipates that many users of the 

amended Program will find it improved 

and less resource intensive to comply 

with, without sacrificing protections of 

their affected plans. 

The 2025 VFC Program retains the 

fundamentals of the 2006 VFC Program. 

The Program describes how to apply for 

relief, lists the specific transactions 

covered, and sets forth acceptable 

methods for correcting fiduciary 

breaches under the VFC Program. It also 

provides examples of potential breaches 

and related permissible corrective 

actions. The VFC Program defines the 

term ‘‘Breach’’ to mean any transaction 

that is or may be a violation of the 

fiduciary responsibilities contained in 

part 4 of title I of ERISA. The VFC 

Program also provides a model 

application form, a checklist, and an 

Online Calculator for determining 

correction amounts. The VFC Program 

will continue to be administered in 

EBSA Regional Offices. Eligible 

applicants that satisfy the terms and 

conditions of the VFC Program 

application process receive a ‘‘no 

action’’ letter from EBSA and are not 

subject to civil monetary penalties for 

the corrected transactions. 

The most significant changes in the 

2025 VFC Program involve the addition 

of two new self-correction features. The 

first is in section 7.1(b) for certain 

failures to timely transmit participant 

contributions (and participant loan 

repayments) to pension plans,8 and the 

second is in section 7.3(c) for certain 


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Federal Register / Vol. 90, No. 9 / Wednesday, January 15, 2025 / Rules and Regulations 3669 

9As noted above, under Reorganization Plan No. 

4 of 1978, 5 U.S.C. App., the authority of the 

Secretary of Treasury to issue exemptions pursuant 

to Code section 4975 was transferred to the 

Secretary of Labor. 10Both terms are defined in a new section V. 

participant loan failures that are selfcorrected under the IRS’s EPCRS. The 

other 2025 VFC Program amendments: 

(1) clarify existing transactions eligible 

for correction under the VFC Program; 

(2) expand the scope of certain 

transactions currently eligible for 

correction; and (3) simplify certain 

administrative or procedural 

requirements for participation in the 

VFC Program and correction of 

transactions under the VFC Program. 

Description of the Amendments to PTE 

2002–51 

The Department is amending PTE 

2002–51 to provide excise tax relief for 

transactions that are corrected pursuant 

to the SCC in the 2025 VFC Program and 

to make certain administrative or 

procedural changes for participation in, 

and correction of, transactions under the 

VFC Program.9

Self-Correction Feature for Delinquent 

Participant Contributions and Loan 

Repayments to Pension Plans 

The 2025 VFC Program establishes the 

SCC for certain delinquent contributions 

to pension plans. The SCC allows ‘‘selfcorrectors’’ to make a plan whole and 

receive relief under the VFC Program 

without submitting an application to 

EBSA and receiving a no-action letter. 

Instead, self-correctors provide a notice 

(the SCC notice) to EBSA through an 

electronic tool on EBSA’s website and 

receive an email acknowledgement from 

EBSA of a properly completed and 

submitted SCC notice. 

The Department is amending PTE 

2002–51 to allow excise tax relief to 

self-correctors. The Department is 

adding transactions that are corrected 

under the SCC to section I.A. These 

transactions must comply with the 

applicable exemption conditions, 

including the requirement that 

delinquent contributions may not have 

been transmitted to the plan more than 

180 calendar days from the date they 

were either received by the employer or 

otherwise would have been payable to 

the participant in cash. The Department 

is also amending section III.B of the 

exemption, which provides that the 

exemption will apply only if the 

applicant receives an EBSA no-action 

letter pursuant to the VFC Program. 

Since self-correctors will receive an 

email acknowledgement instead of a noaction letter from EBSA, this condition 

is amended to add a specific reference 

to the email acknowledgement of a 

properly completed and submitted SCC 

notice. 

Frequency of Use 

Historically, PTE 2002–51 was 

generally not available to VFC Program 

applicants that had taken advantage of 

the relief provided by the VFC Program 

and the exemption for a similar type of 

transaction within the previous three 

years. The Department proposed to 

eliminate the three-year limitation to 

encourage greater use of the VFC 

Program. 

The Department requested comment 

in the proposal regarding whether the 

proposed removal of the three-year 

limitation would encourage greater use 

of the VFC Program without loss of 

meaningful protections for participants 

and beneficiaries. Several commenters 

supported the proposal and stated that 

the existing limitation was unnecessary 

to protect participants. However, one 

commenter disagreed with the proposal 

and cautioned that removing the threeyear limitation may encourage more 

employers to delay depositing employee 

contributions and instead use that 

money for business expenses. This 

commenter suggested that if the 

Department chose to eliminate the 

three-year limitation period, it should 

do so on a trial basis so that the 

Department could monitor how often 

employers are using the VFC Program. 

After considering this comment, the 

Department has decided to finalize the 

amendment as proposed; however, it 

will monitor how frequently plan 

fiduciaries rely on the VFC Program 

(including the SCC) and may consider 

further amendments in the future. 

Sale and Leaseback of Real Property to 

an Employer 

Section I.D. of PTE 2002–51 applies to 

the sale of real property to a plan by the 

sponsoring employer and the leaseback 

of such property to the same employer 

if it is corrected as required under the 

VFC Program. The Department is 

amending this section as proposed. The 

amendment expands the covered 

transactions in section I.D. to include 

affiliates of plan sponsors, which 

reflects a change made in the 2025 VFC 

Program. Accordingly, the amended 

exemption is available for a sale of real 

property by an affiliate of the employer 

sponsoring the plan, to the plan, and a 

leaseback of such property to the 

affiliate of the sponsoring employer. 

As amended, the term ‘‘affiliate’’ of a 

person is defined as follows— 

(1) any person directly, or indirectly 

through one or more intermediaries, 

controlling, controlled by, or under common 

control with the person; (2) any officer, 

director, partner, employee, or member of the 

family (as defined in Code section 4975(e)(6)) 

of the person; or (3) any corporation or 

partnership of which such person is an 

officer, director, partner or employee. 

The term ‘‘control’’ is defined as the 

power to exercise a controlling 

influence over the management of a 

person other than an individual.10

Deletion of Section II.E. 

The Department is deleting section 

II.E. of the exemption as proposed. The 

condition related to all the covered 

transactions under section I and 

required that ‘‘the transaction was not 

part of an agreement, arrangement or 

understanding designed to benefit a 

disqualified person.’’ The Department 

believes that this condition is 

unnecessary in light of the other, more 

specific conditions of the exemption, 

including the requirement that the 

transaction must have been corrected in 

accordance with the applicable 

requirements of the VFC Program for the 

exemption to apply. 

Notice to Interested Persons 

Section IV governs notice to 

interested persons. VFC Program 

applicants generally must inform 

interested persons of the prohibited 

transaction(s) that occurred and the 

steps taken to correct those violations. 

The notice must give participants and 

beneficiaries the opportunity to 

comment on the transactions and 

corrections to the applicable EBSA 

Regional Office. 

The Department proposed two key 

changes to the notice requirement for 

VFC Program applicants. First, the 

Department proposed that the notice 

could not be provided through posting 

alone. The Department explained that 

although section IV.B. had historically 

allowed notice through ‘‘posting, regular 

mail, or electronic mail, or any 

combination thereof,’’ the Department 

no longer believed that posting is 

reasonably calculated to ensure that 

interested persons actually receive the 

notice. Therefore, the Department is 

finalizing this provision as proposed. 

The Department also included a 

model notice to interested persons as an 

appendix to the proposal. The 

Department drafted this model notice 

after reviewing several notices to 

interested persons that were submitted 

to the Regional Offices but did not meet 

the applicable requirements of section 

IV. The Department is publishing the 

model notice as an appendix to the final 

amendment to ensure that participants 

and beneficiaries receive meaningful 


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3670 Federal Register / Vol. 90, No. 9 / Wednesday, January 15, 2025 / Rules and Regulations 

11See e.g., 29 CFR 2520.102–2(c)(2) regarding 

summary plan descriptions. 

12See 2022 VFC Program proposed revisions, 

section D, ‘‘Regulatory Impact Analysis.’’ 

notice of transactions for which relief is 

sought by their plans. The only change 

to the model notice from the proposal is 

that the final model notice states that 

you may ‘‘contact’’ the appropriate 

EBSA Regional Office instead of ‘‘mail.’’ 

The Department intends for the model 

notice to facilitate compliance with the 

exemption, but it is not requiring VFC 

Program applicants to use the model 

notice. 

Regardless of whether a VFC Program 

applicant uses the model notice, the 

notice must be written in a manner 

reasonably calculated to be understood 

by the average Plan participant or 

beneficiary. In this regard, if a plan 

fiduciary knows or has reason to know 

that the average Plan participant or 

beneficiary covered by its plan would 

not understand a notice written in 

English, the fiduciary must take 

appropriate action to ensure that these 

interested parties have a reasonable 

opportunity to become informed of their 

rights described in the notice.11 As a 

compliance aid, the Department is 

making the model notice available on its 

website in twelve non-English 

languages. 

Notice Exception for Self-Correctors 

In light of the streamlined procedure 

for self-correction and the SCC’s 

limitation to corrections when the 

amount of lost earnings is $1,000 or less, 

the proposed exemption provided that 

self-correctors would not have to 

provide notice to interested persons. 

Instead, they would be required to pay 

the amount of the excise tax that would 

otherwise be imposed by Code section 

4975 to the plan. Self-correctors would 

be required to retain a completed Form 

5330 or other written documentation 

that shows the calculation of the 

amount of otherwise applicable excise 

taxes and proof they paid that amount 

to the plan. However, there would no 

requirement to provide this 

documentation to EBSA. The 

Department is finalizing the special 

notice rule for self-correctors as 

proposed. 

Some commenters expressed concern 

that this contribution requirement 

would discourage use of the SCC and 

suggested that the Department should 

allow self-correctors to choose whether 

(a) to provide notice to interested 

persons (but not to EBSA) or (b) make 

the plan contribution. After considering 

these comments, the Department has not 

made this change. Self-correctors have a 

streamlined procedure for selfcorrection and the amount of otherwise 

applicable excise taxes that will be 

owed to their plans will be small due to 

the $1,000 limitation on lost earnings. 

The Department has determined that 

requiring these amounts to be paid to 

the plan is the most beneficial to and 

protective of participants in plans that 

self-correct under the SCC. 

Other Ministerial Amendments 

The Department is finalizing certain 

ministerial changes to PTE 2002–51 to 

improve readability. For example, the 

Department is replacing references ‘‘to 

sections of the Code’’ to instead refer to 

‘‘Code section.’’ 

Executive Order 12866 (Regulatory 

Planning and Review), Executive Order 

14094 (Modernizing Regulatory 

Review), and 13563 (Improving 

Regulation and Regulatory Review) 

Under Executive Order 12866 (as 

amended by Executive Order 14094), 

the Office of Management and Budget 

(OMB)’s Office of Information and 

Regulatory Affairs determines whether a 

regulatory action is significant and, 

therefore, subject to the requirements of 

the Executive order and review by OMB. 

58 FR 51735. As amended by Executive 

Order 14094, section 3(f) of Executive 

Order 12866 defines a ‘‘significant 

regulatory action’’ as a regulatory action 

that is likely to result in a rule that may: 

(1) have an annual effect on the 

economy of $200 million or more; or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, territorial, or Tribal 

governments or communities; (2) create 

a serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency; (3) 

materially alter the budgetary impact of 

entitlements, grants, user fees or loan 

programs or the rights and obligations of 

recipients thereof; or (4) raise legal or 

policy issues for which centralized 

review would meaningfully further the 

President’s priorities or the principles 

set forth in the Executive order. OMB 

has determined that this amendment is 

a significant regulatory action under 

Executive Order 12866.12

Executive Order 13563 directs 

agencies to propose or adopt a 

regulation only upon a reasoned 

determination that its benefits justify its 

costs; the regulation is tailored to 

impose the least burden on society, 

consistent with achieving the regulatory 

objectives; and in choosing among 

alternative regulatory approaches, the 

agency has selected those approaches 

that maximize net benefits. Executive 

Order 13563 recognizes that some 

benefits are difficult to quantify and 

provides that, where appropriate and 

permitted by law, agencies may 

consider and discuss qualitative values 

that are difficult or impossible to 

quantify, including equity, human 

dignity, fairness, and distributive 

impacts. See the 2025 VFC Program 

amendment published elsewhere in this 

issue of the Federal Register for the 

regulatory impact analysis. 

Paperwork Reduction Act 

In accordance with the Paperwork 

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

3506(c)(2)(A)), the Department solicited 

comments concerning the information 

collection request (ICR) included in the 

2022 VFC Program proposed revisions. 

At the same time, the Department also 

submitted the ICR to OMB, in 

accordance with 44 U.S.C. 3507(d). 

The Department received comments 

that addressed the burden estimates 

used in the analysis of the 2022 VFC 

Program proposed revisions. The 

Department reviewed these public 

comments in developing the paperwork 

burden analysis. 

The changes made by these final rules 

affect the existing OMB control number, 

1210–0118. A copy of the ICR for OMB 

Control Number 1210–0118 may be 

obtained at RegInfo.gov (reginfo.gov/ 

public/do/PRAMain) or by contacting 

the PRA addressee: 

By mail ................... PRA Officer, Office of Research and Analysis, Employee Benefits Security Administration, U.S. Department of Labor, 200 

Constitution Avenue NW, Room N–5718, Washington, DC 20210. 

By email ................. ebsa.opr@dol.gov. 

See the 2025 VFC Program 

amendment published elsewhere in this 

issue of the Federal Register for the 

paperwork burden of the amended VFC 

Program and the amended PTE 2002–51. 


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13 5 U.S.C. 601 et seq. (1980). 

14 5 U.S.C. 551 et seq. (1946). 

15 5 U.S.C. 605 (1980). 

Regulatory Flexibility Analysis 

The Regulatory Flexibility Act 

(RFA) 13 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, or any 

other law, and are likely to have a 

significant economic impact on a 

substantial number of small entities.14

Pursuant to section 605 of the RFA, the 

Department certifies that these proposed 

amendments to PTE 2002–51 will not 

have a significant economic impact on 

a substantial number of small entities.15

See the 2025 VFC Program amendment 

published elsewhere in this issue of the 

Federal Register for the factual basis for 

the certification. 

General Information 

The attention of interested persons is 

directed to the following: 

(1) The fact that a transaction is the 

subject of an exemption under Code 

section 4975(c)(2) does not relieve a 

fiduciary or other disqualified person 

with respect to a plan from certain other 

provisions of ERISA and the Code, 

including any prohibited transaction 

provisions to which the exemption does 

not apply, the requirement that all 

assets of an employee benefit plan be 

held in trust by one or more trustees, 

and the general fiduciary responsibility 

provisions of ERISA which require, 

among other things, that a fiduciary 

discharge their duties respecting the 

plan solely in the interests of the 

participants and beneficiaries of the 

plan and in a prudent fashion; nor does 

it affect the requirement of Code section 

401(a) that the plan must operate for the 

exclusive benefit of the employees of 

the employer maintaining the plan and 

their beneficiaries. 

(2) The amendment to PTE 2002–51 

does not extend to transactions 

prohibited under Code section 

4975(c)(1)(F). 

(3) The Department finds that the 

amendment is administratively feasible, 

in the interests of plans and their 

participants and beneficiaries, and 

protective of the rights of participants 

and beneficiaries of such plans. 

(4) The exemption, as amended, is 

supplemental to, and not in derogation 

of other provisions of ERISA and the 

Code, including statutory or 

administrative exemptions and 

transitional rules. Furthermore, the fact 

that a transaction is subject to an 

administrative or statutory exemption is 

not dispositive of whether the 

transaction is in fact a prohibited 

transaction. 

(5) The exemption, as amended, is 

applicable to a transaction only if the 

conditions specified in the class 

exemption are satisfied. 

The Department has republished the 

entire text of the amended PTE 2002–51 

for the convenience of readers. 

Amendment to PTE 2002–51 

Under Code section 4975(c)(2) and in 

accordance with the procedures set 

forth in 29 CFR 2570, subpart B (76 FR 

66637, October 27, 2011), the 

Department amends and restates PTE 

2002–51 as set forth below. 

Section I. Eligible Transactions 

The sanctions resulting from the 

application of Code section 4975(a) and 

(b), by reason of Code section 

4975(c)(1)(A) through (E), shall not 

apply to the following eligible 

transactions described in section 7 of 

the Voluntary Fiduciary Correction 

(VFC) Program, as amended, provided 

that the applicable conditions set forth 

in sections II, III, and IV are met: 

A. Failure to forward participant 

contributions and/or loan repayments to 

a pension plan for investment within 

the time frames determined with 

reference to the principles of the 

Department’s regulation at 29 CFR 

2510.3–102 so that the employer retains 

such contributions or loan repayments 

for a longer period of time. (See VFC 

Program, sections 7.1(a) and (b).) 

B. Loan at a fair market interest rate 

to a disqualified person with respect to 

a plan. (See VFC Program, section 

7.2(a).) 

C. Purchase or sale of an asset 

(including real property) between a plan 

and a disqualified person at fair market 

value. (See VFC Program, sections 7.4(a) 

and (b).) 

D. Sale of real property to a plan by 

the employer or an affiliate of such an 

employer and the leaseback of the 

property to the employer or the affiliate, 

at fair market value and fair market 

rental value, respectively. (See VFC 

Program, section 7.4(c).) 

E. Purchase of an asset (including real 

property) by a plan, where the asset has 

later been determined to be illiquid as 

described under the VFC Program in a 

transaction which was a prohibited 

transaction pursuant to Code section 

4975(c)(1), or in which the asset was 

acquired from an unrelated third party, 

and/or the subsequent sale of such asset 

in a transaction prohibited pursuant to 

Code section 4975(c)(1). (See VFC 

Program, section 7.4(f).) 

F. Use of plan assets to pay expenses, 

including commissions or fees, to a 

service provider (e.g., attorney, 

accountant, recordkeeper, actuary, 

financial advisor, or insurance agent) for 

services provided in connection with 

the establishment, design or termination 

of the plan (settlor expenses), which 

relate to the activities of the plan 

sponsor in its capacity as settlor, 

provided that the payment of the settlor 

expense was not expressly prohibited by 

a plan provision relating to the payment 

of expenses by the plan. (See VFC 

Program, section 7.6(b).) 

Section II. Conditions 

A. With respect to a transaction 

involving participant contributions or 

loan repayments to pension plans 

described in section I.A., the 

contributions or repayments were 

transmitted to the pension plan not 

more than 180 calendar days from the 

date the amounts were received by the 

employer (in the case of amounts that a 

participant or beneficiary pays to an 

employer) or the date the amounts 

otherwise would have been payable to 

the participant in cash (in the case of 

amounts withheld by an employer from 

a participant’s wages). 

B. With respect to the transactions 

described in sections I.B., I.C., I.D., or 

I.E., the plan assets involved in the 

transaction, or series of related 

transactions, did not, in the aggregate, 

exceed 10 percent of the fair market 

value of all the assets of the plan at the 

time of the transaction. 

C. The fair market value of any plan 

asset involved in a transaction described 

in sections I.C., I.D., or I.E., was 

determined in accordance with section 

5 of the VFC Program. 

D. The terms of a transaction 

described in sections I.B., I.C., I.D., I.E., 

or I.F., were at least as favorable to the 

plan as the terms generally available in 

arm’s-length transactions between 

unrelated parties. 

E. With respect to a transaction 

involving a sale of an illiquid asset 

under the VFC Program described in 

section I.E., the plan paid no brokerage 

fees, or commissions in connection with 

the sale of the asset. 

F. With respect to any transaction 

described in section I.F., the amount of 

plan assets involved in the transaction 

or series of related transactions did not, 

in the aggregate, exceed the lesser of 

$10,000 or five (5) percent of the fair 

market value of all the assets of the plan 

at the time of the transaction. 

Section III. Compliance With the VFC 

Program 

A. The applicant or self-corrector, as 

applicable, has met all applicable 

requirements of the VFC Program. 


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B. EBSA has issued a no-action letter 

to the applicant pursuant to the VFC 

Program with respect to a transaction 

described in section I, other than for 

transactions corrected pursuant to the 

SCC of the VFC Program. For 

transactions corrected pursuant to the 

SCC of the VFC Program, the terms of 

this section will be satisfied if EBSA has 

acknowledged receipt of the SCC notice 

in accordance with section 6.2 of the 

VFC Program. 

Section IV. Notice to Interested Persons 

and Special Rules for Self-Correctors 

A. Written notice of the transaction(s) 

for which the applicant is seeking relief 

pursuant to the VFC Program, and this 

exemption, and the method of 

correcting the transaction, was provided 

to interested persons within 60 calendar 

days following the date of the 

submission of an application under the 

VFC Program. A copy of the notice was 

provided to the appropriate Regional 

Office of the United States Department 

of Labor, Employee Benefits Security 

Administration, within the same 60-day 

period, and the applicant indicated the 

date upon which notice was distributed 

to interested persons. Plan assets were 

not used to pay for the notice. The 

notice included an objective description 

of the transaction and the steps taken to 

correct it, written in a manner 

reasonably calculated to be understood 

by the average Plan participant or 

beneficiary. The notice provided for a 

period of 30 calendar days, beginning 

on the date the notice was distributed, 

for interested persons to provide 

comments to the appropriate Regional 

Office, and it included the address and 

telephone number of such Regional 

Office. The Model Notice to Interested 

Persons contained in Appendix A may 

be used to satisfy the written notice 

requirement contained in this section 

IV. 

B. The notice to interested persons 

described in section IV.A. was provided 

in a manner that was reasonably 

calculated, taking into consideration the 

circumstances of the plan, to result in 

the receipt of such notice by interested 

persons, including but not limited to 

regular mail, or electronic mail, or any 

combination thereof. The notice 

informed interested persons of the 

applicant’s participation in the VFC 

Program and intention of availing itself 

of relief under the exemption. 

C. Notwithstanding the foregoing and 

solely with respect to applicants seeking 

relief with respect to the VFC Program 

other than through the SCC, section 

IV.A. and IV.B. shall not apply to a 

transaction described in section I.A., 

provided that: (1) the applicant under 

the VFC Program has met all of the other 

applicable Program requirements; (2) 

the amount of the excise tax that 

otherwise would be imposed by Code 

section 4975 with respect to any 

transaction(s) described in section I.A 

would be less than or equal to $100; (3) 

the amount of the excise tax that 

otherwise would be imposed by Code 

section 4975 was paid to the plan and 

allocated to the individual accounts of 

participants and beneficiaries in the 

same manner as provided under the 

plan with respect to plan earnings; and 

(4) the applicant under the VFC Program 

provides a copy of a completed IRS 

Form 5330 or written documentation 

containing the information required by 

IRS Form 5330 and proof of payment 

with the submission of the application 

to the appropriate EBSA Regional 

Office. For the sole purpose of 

determining whether the excise tax due 

under Code section 4975 on the 

‘‘amount involved’’ with respect to the 

prohibited transaction involving the 

failure to timely transmit participant 

contributions and loan repayments is 

less than or equal to $100, an applicant 

may calculate the excise tax due based 

upon the Lost Earnings amount 

computed using the online calculator 

provided under the Program. 

D. Notwithstanding the foregoing and 

solely with respect to self-correctors 

seeking relief with respect to 

transactions corrected pursuant to the 

SCC of the VFC Program, section IV.A. 

and B. shall not apply, and additionally 

the self-corrector must: (1) pay to the 

plan the amount of the excise tax that 

otherwise would be imposed by Code 

section 4975 and allocate such amount 

to the individual accounts of 

participants and beneficiaries in the 

same manner as provided under the 

plan with respect to plan earnings, and 

(2) retain a copy of a completed IRS 

Form 5330 or written documentation 

regarding the determination of the 

otherwise applicable excise tax and 

proof of payment of the amounts paid to 

the plan pursuant to the VFC Program 

and this exemption and (3) provide to 

the plan administrator a copy of such 

documentation. Self-correctors must 

calculate the excise tax otherwise due 

based upon the Lost Earnings amount 

computed using the online calculator 

provided under the Program. 

Section V. Definitions 

A. For purposes of this exemption the 

term ‘‘affiliate’’ of a person means (1) 

any person directly, or indirectly 

through one or more intermediaries, 

controlling, controlled by, or under 

common control with the person; (2) 

any officer, director, partner, employee, 

member of the family (as defined in 

Code section 4975(e)(6)) of the person; 

or (3) any corporation or partnership of 

which such person is an officer, 

director, partner or employee. 

B. For purposes of this section V, the 

term ‘‘control’’ means the power to 

exercise a controlling influence over the 

management or policies of a person 

other than an individual. 

Signed at Washington, DC, this 3rd day of 

January 2025. 

Lisa M. Gomez, 

Assistant Secretary, Employee Benefits 

Security Administration, U.S. Department of 

Labor. 

Appendix A—Model Notice to 

Interested Persons 

Dear [Participant or Beneficiary], 

The purpose of this letter is to notify you 

that the [Insert Name of Applicant] is 

participating in the U.S. Department of 

Labor’s Voluntary Fiduciary Correction (VFC) 

Program with respect to the [Insert Name of 

Plan]. The VFC Program is a voluntary 

enforcement program that encourages the 

correction of possible breaches of Title I of 

the Employee Retirement Income Security 

Act (ERISA). 

ERISA is the federal law that covers most 

employee benefit plans in the private sector. 

The U.S. Department of Labor’s Employee 

Benefits Security Administration (EBSA) 

enforces many parts of ERISA. If the terms 

and conditions of the VFC Program are met 

by [Insert Name of Applicant], EBSA will not 

initiate a civil investigation under Title I of 

ERISA with respect to the transaction and 

voluntary correction described below. 

The VFC Program is accompanied by a 

‘‘class exemption’’ from certain excise taxes 

imposed under the Internal Revenue Code on 

parties participating in ‘‘prohibited 

transactions’’ as defined in ERISA and the 

Code. The purpose of the prohibited 

transaction rules is to prevent dealings with 

persons or entities that may be in a position 

to exercise improper influence over 

employee benefit plan assets including 

[Name of the Plan]. If the terms of the class 

exemption are met, [Insert Name of 

Applicant] will qualify for relief from the 

excise taxes that would otherwise apply. 

One of the requirements for excise tax 

relief is for [Insert Name of Applicant] to 

provide you with this notice so you have an 

opportunity to provide comments to EBSA 

about the prohibited transaction and the 

steps taken to correct the prohibited 

transaction, both of which are described 

below. To the extent that you are interested 

in providing your written comments to 

EBSA, you may contact them [Insert the 

Name of the Appropriate EBSA Regional 

Office from the VFC Program Notice, 

Appendix C]. The written comments should 

be made to the attention of the ‘‘VFC Program 

Coordinator.’’ The address and telephone 

number for this office are [Insert from VFC 

Program Notice, Appendix C]. You have 30 

calendar days, beginning on the date this 

notice was distributed, to provide written 

comments. Individuals submitting written 


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Federal Register / Vol. 90, No. 9 / Wednesday, January 15, 2025 / Rules and Regulations 3673 

comments on this matter are advised not to 

disclose sensitive personal data such as 

social security numbers. 

[Insert An Objective Description of the 

Transaction and the Steps Taken to Correct 

the Transaction] 

Please feel free to contact me if you have 

any questions at [Insert Telephone Number of 

a Person Employed by the Applicant Who Is 

Knowledgeable About this Matter]. 

Sincerely, 

[Insert Name and Title of Person Employed 

by the Applicant] 

[FR Doc. 2025–00328 Filed 1–14–25; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 926 

[SATS No. MT–042–FOR; Docket No. OSM– 

2023–0007; S1D1S SS08011000 SX064A000 

231S180110; S2D2S SS08011000 

SX064A000 23XS501520] 

Montana Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Final rule; approving, in part. 

SUMMARY: We, the Office of Surface 

Mining Reclamation and Enforcement 

(OSMRE), are approving, in part, and 

denying, in part, an amendment to the 

Montana regulatory program under the 

Surface Mining Control and 

Reclamation Act of 1977 (SMCRA). 

Montana submitted this proposed 

amendment to OSMRE on its own 

initiative in response to a State law 

passed by the Montana Legislature 

(House Bill (HB) 576). The proposed 

amendment generally concerns 

proposed changes to the definition of 

material damage and changes to permit 

requirements related to hydrologic 

information. 

DATES: The effective date is February 14, 

2025. 

FOR FURTHER INFORMATION CONTACT: 

Jeffrey Fleischman, Field Office 

Director, Office of Surface Mining 

Reclamation and Enforcement, 100 East 

B Street, Casper, Wyoming 82602, 

Telephone: (307) 261–6550, Email: 

jfleischman@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Montana Program 

II. Submission of the Amendment 

III. OSMRE’s Findings 

A. Montana Code Annotated (MCA) 82–4– 

203(32)(a) 

B. MCA 82–4–203(32)(b) 

C. MCA 82–4–203(32)(c) 

D. MCA 82–4–222(1)(m) 

E. Sections 4, 5, 6, and 7 of House Bill 576 

IV. Summary and Disposition of Comments 

V. OSMRE’s Decision 

VI. Procedural Determinations 

I. Background on the Montana Program 

Section 503(a) of SMCRA permits a 

State to assume primacy for the 

regulation of surface coal mining and 

reclamation operations on non-Federal 

and non-Indian lands within its borders 

by demonstrating that its program 

includes, among other things, State laws 

and regulations that govern surface coal 

mining and reclamation operations in 

accordance with SMCRA and consistent 

with the Federal implementing 

regulations. See 30 U.S.C. 1253(a)(1) 

and (7); 30 CFR 730.5 and 732.15(a). On 

the basis of these criteria, the Secretary 

of the Interior conditionally approved 

the Montana program on April 1, 1980. 

You can find background information 

on the Montana program, including the 

Secretary’s findings, the disposition of 

comments, and conditions of approval 

of the Montana program in the April 1, 

1980, Federal Register (45 FR 21560). 

You can also find later actions 

concerning the Montana program and 

program amendments at 30 CFR 926.15. 

II. Submission of the Amendment 

By letter dated June 1, 2023 

(Administrative Record No. MT–042– 

01), Montana sent us an amendment to 

its program under SMCRA (30 U.S.C. 

1201 et seq.). We found Montana’s 

proposed amendment to be 

administratively complete on June 5, 

2023. Montana submitted the proposed 

amendment to us, on its own volition, 

after the Montana legislature passed HB 

576 during the 2023 legislative session. 

HB 576 amends the Montana Strip and 

Underground Mine Reclamation Act 

(MSUMRA) as well as sections 82–4– 

203 and 82–4–222 of the Montana Code 

Annotated (MCA). Among other things, 

HB 576 also directed the Montana 

Department of Environmental Quality 

(MDEQ) to amend the Administrative 

Rules of Montana (ARM) to ‘‘remove the 

two subsections defining ‘material 

damage’ and the subsection defining 

‘material damage to the quantity or 

quality of water’.’’ 

Specifically, Montana proposes 

several changes to MCA sec. 82–4– 

203(32), which defines and describes 

‘‘material damage’’ for both 

underground and surface coal mining 

operations (referred to herein as ‘‘coal 

mining and reclamation operations’’). 

As currently approved by OSMRE, this 

section dictates how ‘‘material damage’’ 

applies to the protection of the 

hydrologic balance. Montana now 

proposes to create three subsections 

under section 82–4–203(32) to define 

how ‘‘material damage’’ is defined with 

respect to: (a) protection of the 

hydrologic balance; (b) an alluvial 

valley floor; and (c) subsidence caused 

by an underground coal mining 

operation. 

Proposed section 82–4–203(32)(a) 

would create two requirements for an 

action or inaction to be considered 

‘‘material damage’’ to the hydrologic 

balance. The first requirement is that the 

coal mining operation would cause 

significant, lasting, or permanent 

adverse changes to water quality or 

quantity that affect the beneficial uses 

of, or rights to, the water outside the 

permit area. This requirement 

incorporates the current language of 

section 82–4–203(32) but modifies it to 

replace the phrase ‘‘degradation or 

reduction’’ with ‘‘significant long term 

or permanent adverse change.’’ The 

second requirement for an action or 

inaction to be considered ‘‘material 

damage’’ to the hydrologic balance is 

that a coal mining or reclamation 

operation would cause a lasting or 

permanent exceedance of a water 

quality standard (WQS) outside a permit 

area. There is an exception to this 

second requirement for water bodies for 

which the WQSs are stricter than the 

baseline conditions as determined by 

MDEQ’s assessment of the cumulative 

hydrologic impact findings conducted 

pursuant to section 82–4–222. For those 

water bodies, this second requirement is 

met if the coal mining and reclamation 

operation causes an adverse effect to 

land use, beneficial uses of water, or 

water rights. 

Proposed section 82–4–203(32)(b) 

would apply when determining if an 

alluvial valley floor is ‘‘materially 

damaged.’’ Montana proposes to modify 

the definition of ‘‘material damage’’ by 

adding language that accounts for the 

degradation or a reduction of water 

quality or quantity supplied to an 

alluvial valley floor by a coal mining 

and reclamation operation, but only if 

those actions or inactions significantly 

decrease the alluvial valley floor’s 

ability to support agricultural activities. 

Proposed section 82–4–203(32)(c) 

would apply when determining if 

subsidence caused by underground coal 

mining operation is ‘‘material damage.’’ 

Subsidence caused by underground coal 

mines would constitute ‘‘material 

damage’’ when there are (1) significant 

impairments to surface lands, features, 

and structures; (2) physical changes that 

have significant adverse effects on a 

lands current and reasonably 

foreseeable uses, production, or income; 

or (3) when there is any significant 

change to a structure’s pre-subsidence 

condition, appearance, or utility. 


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