[Federal Register Volume 87, Number 75 (Tuesday, April 19, 2022)]
[Notices]
[Pages 23245-23249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08305]


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DEPARTMENT OF LABOR

Employee Benefits Security Administration

[Prohibited Transaction Exemption 2022-02; Exemption Application No. L-
12008]


Exemption From Certain Prohibited Transaction Restrictions 
Involving Phillips 66 Company (Phillips 66 or the Applicant) Located in 
Houston, TX

AGENCY: Employee Benefits Security Administration, Labor.

ACTION: Notice of exemption.

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SUMMARY: This document contains a notice of exemption issued by the 
Department of Labor (the Department) from certain of the prohibited 
transaction restrictions of the Employee Retirement Income Security Act 
of 1974

[[Page 23246]]

(ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code). 
Under the exemption, the Phillips 66 Group Life Insurance Plan (the 
Plan) will enter into an insurance contract with an unrelated A-rated 
insurance company (the Fronting Insurer) that will, in turn, enter into 
a reinsurance contract with Spirit Insurance Company (Spirit), an 
affiliate of Phillips 66 (the Reinsurance Arrangement). Under the 
Reinsurance Arrangement, Spirit will reinsure the Plan's risks.

FOR FURTHER INFORMATION CONTACT: Mr. Joseph Brennan of the Department 
at (202) 693-8456. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: On September 20, 2021, the Department 
published a notice of proposed exemption in the Federal Register at 86 
FR 52210, permitting: (1) The reinsurance of risks; and (2) the receipt 
of premiums by Spirit in connection with insurance contracts sold by 
Zurich American Life Insurance Company (or any successor Fronting 
Insurer) to provide Group Term Life and Accidental Death and 
Dismemberment benefits to Plan participants.
    This exemption provides only the relief specified in the text of 
the exemption. It provides no relief from violations of any law other 
the prohibited transaction provisions of ERISA expressly stated herein.
    The Department makes the requisite findings under ERISA Section 
408(a) based on adherence to all of the conditions of the exemption. 
Accordingly, affected parties should be aware that the conditions 
incorporated in this exemption are, taken as a whole, necessary for the 
Department to grant the relief requested by the Applicant. Absent these 
or similar conditions, the Department would not have granted this 
exemption.
    The Applicant requested an individual exemption pursuant to ERISA 
Section 408(a) in accordance with the procedures set forth in 29 CFR 
part 2570, subpart B (76 FR 66637, 66644, October 27, 2011).

Written Comments

    In the proposed exemption, the Department invited all interested 
persons to submit written comments and/or requests for a public hearing 
with respect to the notice of proposed exemption. All comments and 
requests for a hearing were due to the Department by November 5, 2021. 
The Department received one written comment from the Applicant and 
three calls from Plan participants seeking to better understand the 
proposed exemption. The Department did not receive any requests for a 
public hearing from any of the commenters.

Comments From the Applicant

I. Text of Exemptive Relief in Section II

    Section II of the proposed exemption at 86 FR 52215 states: ``The 
exemption would provide relief from the prohibited transactions 
provisions of ERISA sections 406(a)(1)(A), (D), and 406(b)(1) and 
(b)(3), and the excise tax imposed by Code section 4975(a) and (b) (due 
to the operation of parallel prohibited transaction provisions 
contained in Code section 4975(c)(1)(A), (D), (E), and (F)) with 
respect to . . .''
    The Applicant notes that it requested exemptive relief from ERISA 
Sections 406(a)(1)(A), (C) and (D), and 406(b)(1), (2), and (3), along 
with the parallel provisions of the Code.
    The Applicant requests that the Department either directly state 
that it does not need relief from ERISA Sections 406(a)(1)(C) and 
406(b)(2) because the Reinsurance Arrangement would not violate those 
sections, or broaden the exemption in Section II to include relief from 
ERISA Sections 406(a)(1)(C) and 406(b)(2).
    Department's Response: The Department intended to include exemptive 
relief from ERISA Section 406(b)(2) in Section II of the proposed 
exemption and has revised that section of the exemption accordingly. 
However, the Department is not revising the proposed exemption to 
include relief from ERISA Section 406(a)(1)(C). Such relief is 
available to the Applicant to the extent it meets the requirements of 
ERISA Section 408(b)(2), a statutory exemption that provides exemptive 
relief from the prohibitions of ERISA Section 406(a) for, among other 
things, contracting or making reasonable arrangements with a party in 
interest for services necessary to operate the plan. Relief in the 
statutory exemption is conditioned on certain requirements being met 
that are not included in the conditions of this exemption. The 
Department could not make a finding that the exemption would be in the 
interest of the Plan if the Department provided the Applicant with 
exemptive relief from ERISA Section 406(a)(1)(C) without requiring it 
to meet the additional protections afforded by ERISA Section 408(b)(2) 
and the requirements set forth in Department's regulations issued 
thereunder (29 CFR 2550.408b-2).
    Department's Note: Since the Plan is not subject to the provisions 
of Title II of ERISA, the Department has revised the scope of relief in 
the exemption by removing references to Code Sections 4975(c)(1)(A), 
(D), (E) and (F).

II. Limitations on the Use of Participant-Related Data or Information

    Section III(o) of the proposed exemption states that: ``Neither 
Phillips 66 nor any related entity may use participant-related data or 
information generated by or derived from the Reinsurance Arrangement in 
a manner that benefits Phillips 66 or a related entity . . . .'' 
Preamble Section 5 of the proposed exemption states: ``The Department 
developed this proposed exemption based on the Applicant's 
representation that Phillips 66 is not expected to receive any benefit 
from the Reinsurance Arrangement other than the net income increase 
described herein, which must be verified annually by the Independent 
Fiduciary.''
    The Applicant states that, while it does not object to the 
Department's concept of an express prohibition on misuse of participant 
data, it is concerned that the specific language of the prohibition in 
Section III(o) is too broad, and may prohibit activity the Department 
did not intend to prohibit. The Applicant further states that the 
Preamble description explaining Section III(o) is even broader than the 
actual text of Section III(o), stating that ``. . . any participant-
related data . . .'' from the Reinsurance Arrangement cannot be used 
``. . . in any manner . . .'' that ``benefits'' Phillips 66 or an 
affiliate.
    The Applicant reiterates that Phillips 66 intends to derive no 
additional benefit from the Reinsurance Arrangement other than what it 
has already disclosed, and states that the proposed exemption's broad 
language could be read to prevent Phillips 66 from using participant 
data and information in perfectly appropriate ways related to better 
plan administration. For example, the Applicant asserts that claims 
data may be used to improve claims processing and risk mitigation or to 
determine whether and how to enhance benefits. The Applicant states 
that these purposes would benefit participants but might also be seen 
to benefit Phillips 66.
    Accordingly, the Applicant requests the following modification to 
Section III(o): ``Neither Phillips 66 nor any related entity may 
benefit from the use of participant-related data or information 
generated by or derived from the Reinsurance Arrangement for purposes 
unrelated to Phillips 66's role as a plan sponsor and/or employer. . . 
.'' The Applicant states that this language achieves the Department's 
objectives without

[[Page 23247]]

unintentionally limiting the appropriate use of plan and participant 
data.
    Department's Response: The Department declines to make the 
Applicant's requested revisions. The prohibition against the use of 
participant-related data by Phillips 66 is intentionally expansive in 
order to protect the interest of each affected Plan participant as 
required by ERISA section 408(a). The Applicant has not demonstrated 
that the Plan's participants and beneficiaries would, in all instances, 
be adequately protected if Phillips 66 were to use plan-related data in 
its role as a plan sponsor and/or employer. However, the Department has 
revised Section III(o) to clarify that the condition does not preclude 
Phillips 66 from using participant-related data solely to improve the 
administration of the Plan, or to enhance the Plan's benefits. Phillips 
66 may contact the Office of Exemption Determinations to the extent it 
is unsure whether its potential future use of participant-related data 
would violate this condition.

III. Technical Edits

    The Department has revised the exemption consistent with two non-
substantive edits identified by the Applicant involving the numbering 
and lettering of certain paragraphs and sub-paragraphs. For clarity, 
the Department added a new definition, which defines the term ``Plan'' 
as the Phillips 66 Group Life Insurance Plan.
    Accordingly, after considering the entire record developed in 
connection with the Applicant's exemption application and comment 
letter, the Department has determined to grant the exemption described 
below.
    The complete application file (L-12008) is available for public 
inspection in the Public Disclosure Room of the Employee Benefits 
Security Administration, Room N-1515, U.S. Department of Labor, 200 
Constitution Avenue NW, Washington, DC 20210. For a more complete 
statement of the facts and representations supporting the Department's 
decision to grant this exemption, refer to the notice of proposed 
exemption published on June 28, 2021, at 86 FR 34048.

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 ERISA Section 408(a) does not relieve a fiduciary or other party 
in interest from certain requirements of other ERISA provisions, 
including any prohibited transaction provisions to which the exemption 
does not apply and the general fiduciary responsibility provisions of 
ERISA Section 404, which, among other things, require a fiduciary to 
discharge his or her duties respecting the plan solely in the interest 
of the plan's participants and beneficiaries and in a prudent fashion 
in accordance with ERISA Section 404(a)(1)(B).
    (2) As required by ERISA Section 408(a), the Department hereby 
finds that the exemption is: (a) Administratively feasible; (b) in the 
interests of affected plans and of their participants and 
beneficiaries; and (c) protective of the rights of participants and 
beneficiaries of such plans.
    (3) This exemption is supplemental to, and not in derogation of, 
any other ERISA provisions, 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 determining whether the transaction is in fact a 
prohibited transaction.
    (4) The availability of this exemption is subject to the express 
condition that the material facts and representations contained in the 
application accurately describe all material terms of the transactions 
that are the subject of the exemption.
    Accordingly, the following exemption is granted under the authority 
of ERISA Section 408(a), and in accordance with the procedures set 
forth in 29 CFR part 2570, subpart B (76 FR 66637, 66644, October 27, 
2011):

Exemption

Section I. Definitions

    (a) An ``affiliate'' of Phillips 66 or Spirit includes: (1) Any 
person or entity who controls Phillips 66 or Spirit or is controlled by 
or under common control with Phillips 66 or Spirit; (2) any officer, 
director, employee, relative, or partner with respect to Phillips 66 or 
Spirit; and (3) any corporation or partnership of which the person in 
(2) of this paragraph is an officer, director, partner, or employee;
    (b) The term ``Benefit Enhancements'' means the following benefits, 
unless adjusted in a manner that is consistent with the terms of this 
exemption:
    (i) The New Care Advocacy Service Benefit. Under this new benefit, 
master's degree-level licensed social workers will proactively find 
participants needing specialized assistance, including those diagnosed 
with a terminal or chronic illness or who are managing a chronic 
condition that has confined them to their home or a rehabilitation 
center. Care Advocacy support service includes participant education 
and assistance with respect to available community resources, and 
assistance with scheduling and navigating doctor's appointments, 
completing forms, and coordinating care with doctors and specialists.
    (ii) The Enhanced Funeral Concierge Service Benefit. Under this 
enhancement, the Plan would extend its existing Funeral Concierge 
Service Benefit to provide coverage for Plan participants' family 
members.
    (iii) The Enhanced Accelerated Death Benefit. The Plan currently 
provides an Accelerated Death Benefit for terminally-ill participants 
with life expectancy of 24 months or less to receive an accelerated 
life insurance benefit payment in advance of death of up to 50 percent 
of the participant's total life insurance benefit amount. Under this 
enhancement, the amount of the Accelerated Death Benefit will increase 
to 80 percent of a participant's life insurance benefit.
    (iv) The Enhanced Accidental Death & Dismemberment Benefit. The 
Plan currently provides that if a participant suffers an injury 
resulting in Hemiplegia, the Plan would pay such participant a benefit 
equal to 66 percent of the participant's incurred losses from such 
injury. Under this enhancement, the payment will increase to 75 percent 
of the participant's incurred losses from such injury.
    (v) The New Accidental Death & Dismemberment Benefit. Under the 
current terms of the Plan, if a participant dies in an automobile 
accident while seated in an air bag-protected position and such air bag 
system deployed during the accident, the Plan would not pay any 
additional benefit to the participant. Under this enhancement, the Plan 
will provide a new benefit that pays ten percent of the principal sum, 
up to $25,000, upon the occurrence of this event.
    Further, under the current terms of the Plan, if a participant dies 
100 miles away from his or her primary place of residence, the Plan 
would not cover costs incurred to transport the participant's body from 
the place of death to a mortuary near the participant's primary 
residence. Under this enhancement, the Plan will provide a new benefit 
of up to five percent of the AD&D policy amount, up to a maximum of 
$5,000, for the cost associated with transporting the deceased 
participant's body to a mortuary near his or her primary residence.
    Finally, the Plan currently does not cover medical costs incurred 
by a participant who suffers third degree burns. Under this 
enhancement, the

[[Page 23248]]

Plan will enhance the AD&D benefit by paying a percentage of the 
principal sum based on the body area(s) and the percentage of the body 
surface affected.
    (c) The term ``control'' means the power to exercise a controlling 
influence over the management or policies of a person other than an 
individual;
    (d) The term ``Independent Fiduciary'' means a person who:
    (1) Is not Phillips 66 or an affiliate of Phillips 66 or Spirit and 
does not hold an ownership interest in Phillips 66, Spirit or 
affiliates of Phillips 66 or Spirit;
    (2) Was not a fiduciary with respect to the Plan before its 
appointment to serve as the Independent Fiduciary;
    (3) Has acknowledged in writing that:
    (i) It is a fiduciary and has agreed not to participate in any 
decision with respect to any transaction in which it has an interest 
that might affect its best judgment as a fiduciary; and
    (ii) Has appropriate technical training or experience to perform 
the services contemplated by the exemption;
    (4) For purposes of this definition, no organization or individual 
may serve as Independent Fiduciary for any fiscal year if the gross 
income received by such organization or individual from Phillips 66, 
Spirit, or their affiliates for that fiscal year exceeds two percent of 
such organization's or individual's gross income from all sources for 
the prior fiscal year. This provision also applies to a partnership or 
corporation of which such organization or individual is an officer, 
director, or 10 percent or more partner or shareholder and includes as 
gross income amounts received as compensation for services provided as 
an independent fiduciary under any prohibited transaction exemption 
granted by the Department;
    (5) No organization or individual that is an Independent Fiduciary 
and no partnership or corporation of which such organization or 
individual is an officer, director or ten percent or more partner or 
shareholder may acquire any property from, sell any property to, or 
borrow any funds from Phillips 66, Spirit, or affiliates of Phillips 66 
or Spirit while the individual serves as an Independent Fiduciary. This 
prohibition would continue for a period of six months after either: (i) 
The party ceases to be an Independent Fiduciary or (ii) the Independent 
Fiduciary negotiates on behalf of the Plan during the period that such 
organization or the individual serves as an Independent Fiduciary; and
    (6) In the event a successor Independent Fiduciary is appointed to 
represent the interests of the Plan with respect to the subject 
transaction, no time should elapse between the resignation or 
termination of the former Independent Fiduciary and the appointment of 
the successor Independent Fiduciary;
    (e) The term ``Plan'' means the Phillips 66 Group Life Insurance 
Plan.

Section II. Covered Transactions

    The restrictions of ERISA Sections 406(a)(1)(A) and (D), and 
406(b)(1), (b)(2) and (b)(3), shall not apply to: (1) The reinsurance 
of risks; and (2) the receipt of premiums by Spirit in connection with 
insurance contracts sold by Zurich (or any successor Fronting Insurer) 
to provide Group Term Life and Accidental Death and Dismemberment 
benefits to Plan participants. In order to receive such relief, the 
conditions in Section II must be met in conformance with the 
definitions set forth in Section I.
    (a) Phillips 66 must improve the Plan with the Benefit Enhancements 
that are funded solely by Phillips 66 in compliance with (b) through 
(e) below;
    (b) For every dollar that Phillips 66 and its related parties 
directly and indirectly benefit from the Captive Reinsurance 
arrangement, Phillips 66 must pay at least $0.51 towards the Benefit 
Enhancements, as may be adjusted under condition (e) below (the Primary 
Benefit Test);
    (c) The Independent Fiduciary must determine whether the Primary 
Benefit Test has been met with respect to each successive five-year 
period covered by the exemption. The Independent Fiduciary must report 
its determinations as part of the Independent Fiduciary's next annual 
report. For purposes of the initial five-year period, the Independent 
Fiduciary may test only the costs and benefits that inure to Phillips 
66 during years two through five of the initial five-year period.
    (d)(1) If the Primary Benefit Test has not been met with respect to 
a five-year period, Phillips 66 must reduce the participants' portion 
of the Plan's premium in the next consecutive year by an amount that is 
at least equal to the amount by which the prior five-year Primary 
Benefit Test was not met, plus an additional payment of interest on the 
shortfall, at the Code's federal underpayment rate set forth in Code 
Section 6621(b). The premium reduction must benefit all plan 
participants equally, be fully implemented during the course of the 
year following the last year of the five-year period to which it 
relates, and be verified by the Independent Fiduciary; (2) If the 
captive reinsurance arrangement is terminated before the end of a five-
year period (a Shorter Term), and if the Primary Benefit Test has not 
been met during the Shorter Term, Phillips 66 must reduce the 
participants' portion of the Plan's premium in the following year by an 
amount at least equal to the amount by which the Shorter Term Primary 
Benefit Test was not met. The premium reduction must benefit all plan 
participants equally, be fully implemented during the course of the 
year following the last year of the Shorter Term, and be verified by 
the Independent Fiduciary. Relief in this proposed exemption does not 
extend to prohibited transactions described in this proposed exemption 
that occur during the Shorter Term unless the requirements in this 
Subsection (d)(2) have been met. The Independent Fiduciary must ensure 
the premium reduction was properly implemented, notwithstanding that 
the Reinsurance Arrangement has already been terminated;
    (e) Phillips 66 may adjust the Benefit Enhancements to the Plan at 
any time, if such adjustment is approved in advance by the Independent 
Fiduciary after the Independent Fiduciary first determines that each 
adjusted Benefit Enhancement is in the interest of the Plan's 
participants and beneficiaries and available to them on an equal basis. 
The cost incurred by Phillips 66 to fund the Benefit Enhancement may be 
used to determine whether the Primary Benefit Test has been met. A 
complete description of any new Benefit Enhancements and the 
Independent Fiduciary's rationale and determinations regarding such 
enhancements must be included in the next Independent Fiduciary report 
submitted to the Department.
    (f) Spirit must:
    (1) Be a party in interest with respect to the Plan based on its 
affiliation with Phillips 66 that is described in ERISA Section 
3(14)(G); \1\
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    \1\ Under ERISA Section 3(14)(G), a corporation is a ``party in 
interest'' with respect to an employee benefit plan if 50 percent or 
more of the combined voting power of all classes of the 
corporation's stock entitled to vote, or the total value of shares 
of all classes of stock of the corporation, is owned by an employer 
any of whose employees are covered by the employee benefit plan.
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    (2) Be licensed to sell insurance or conduct reinsurance operations 
in the Vermont;
    (3) Have obtained a Certificate of Authority from the insurance 
commissioner of Vermont to transact business as a captive insurance 
company. Such certificate must not have been revoked or suspended;
    (4) Have undergone a financial examination (within the meaning of 
the

[[Page 23249]]

law of its domiciliary State of Vermont) by the Insurance Commissioner 
of Vermont within five years before the end of the year preceding the 
year in which the reinsurance transaction occurred;
    (5) Have undergone, and continue to undergo, an examination by an 
independent certified public accountant for its last completed taxable 
year immediately before the taxable year of the Reinsurance Arrangement 
covered by this exemption; and
    (6) Be licensed to conduct reinsurance transactions by a state 
whose law requires that an actuarial review of reserves be conducted 
annually by an independent firm of actuaries and reported to the 
appropriate regulatory authority;
    (g) In each year of coverage provided by a Fronting Insurer, the 
formulae used by the Fronting Insurer to calculate premiums will be 
similar to formulae used by other insurers providing comparable life 
insurance coverage under similar programs. Furthermore, the premium 
charges calculated in accordance with the formulae will be reasonable 
and comparable to the premiums charged by the Fronting Insurer and its 
competitors with the same or a better financial strength rating 
providing the same coverage under comparable programs;
    (h) The Plan must pay no commissions with respect to the sale of 
such contracts or the Reinsurance Arrangement;
    (i) The Fronting Insurer must have a financial strength rating of 
``A'' or better from A.M. Best Company (A.M. Best) or an equivalent 
rating from another rating agency;
    (j) The Reinsurance Arrangement between Spirit and Zurich or any 
successor Fronting Insurer must be indemnity insurance only. The 
arrangement must not relieve a Fronting Insurer from any responsibility 
or liability to the Plan, including liability that would result if 
Spirit fails to meet any of its contractual obligations to Zurich or 
any successor Fronting Insurer under the Reinsurance Arrangement;
    (k) Phillips 66 will not offset or reduce any benefits provided to 
Plan participants and beneficiaries in relation to its implementation 
of the Benefit Enhancements;
    (l) The Independent Fiduciary must:
    (1) In compliance with the fiduciary obligations of prudence and 
loyalty under ERISA Sections 404(a)(1)(A) and (B) (i) review the 
Reinsurance Arrangement and the terms of the exemption; (ii) obtain and 
review all current objective, reliable, third-party documentation 
necessary to make the determinations required of the Independent 
Fiduciary by the exemption; and (iii) confirm in writing that all of 
the exemption's terms and conditions have been met (or, due to timing 
requirements, can reasonably be expected to be met consistent with the 
terms of this proposed exemption) and send this confirmation to the 
Department's Office of Exemption Determinations at least 30 days before 
Phillips 66 engages in the Reinsurance Arrangement. The confirmation 
must include copies of each document relied on by the Independent 
Fiduciary and the steps the Independent Fiduciary took to make its 
confirmation;
    (2) Monitor, enforce and ensure compliance with all conditions of 
this exemption, in accordance with its obligations of prudence and 
loyalty under ERISA Sections 404(a)(1)(A) and (B), including all 
conditions and obligations imposed on any party dealing with the Plan, 
throughout the period during which Spirit's assets are directly or 
indirectly used in connection with a transaction covered by this 
exemption.
    (3) Report any instance of non-compliance immediately to the 
Department's Office of Exemption Determinations;
    (4) Take all appropriate actions to safeguard the interests of the 
Plan;
    (5) Review all contracts pertaining to the Reinsurance Arrangement, 
and any renewals of such contracts, to determine whether the 
requirements of this exemption and the terms of Benefit Enhancements 
continue to be satisfied;
    (6) Submit an annual Independent Fiduciary Report to the Department 
certifying under penalty of perjury whether each term and condition of 
the exemption is met over the applicable period. Each report must be: 
(i) Completed within six months after the end of the twelve-month 
period to which it relates (the first twelve-month period begins on the 
effective date of the exemption grant); and (ii) submitted to the 
Department within 60 days thereafter. The relevant report must include 
all of the objective data necessary to demonstrate that the Primary 
Benefit Test has been met;
    (m) Neither Phillips 66 nor any related entity may use participant-
related data or information generated by or derived from the 
Reinsurance Arrangement in a manner that benefits Phillips 66 or a 
related entity. Notwithstanding the above, this condition does not 
preclude Phillips 66 from using participant-related data solely to 
improve the administration of the Plan or to enhance the Plan's 
benefits;
    (n) No amount of Spirit's reserves that are attributable to the 
Plan participants' contributions may be transferred to Phillips 66 or a 
related party;
    (o) All the facts and representations set forth in the Summary of 
Facts and Representation must be true and accurate; and
    (p) No party related to this exemption request has or will, 
indemnify the Independent Fiduciary, in whole or in part, for 
negligence and/or for any violation of state or federal law that may be 
attributable to the Independent Fiduciary in performing its duties 
under the captive reinsurance arrangement. In addition, no contract or 
instrument may purport to waive any liability under state or federal 
law for any such violations.
    Effective Date: This exemption will be in effect on the date that 
this grant notice is published in the Federal Register.

    Signed at Washington, DC.
Timothy P. Hauser,
Deputy Assistant Secretary for Program Operations, Employee Benefits 
Security Administration, U.S. Department of Labor.
[FR Doc. 2022-08305 Filed 4-18-22; 8:45 am]
BILLING CODE 4510-29-P