87 FR 140 pgs. 43897-43901 - Agency Information Collection Activities; Request for Public Comment
Type: NOTICEVolume: 87Number: 140Pages: 43897 - 43901
Pages: 43897, 43898, 43899, 43900, 43901FR document: [FR Doc. 2022-15680 Filed 7-21-22; 8:45 am]
Agency: Labor Department
Sub Agency: Employee Benefits Security Administration
Official PDF Version: PDF Version
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DEPARTMENT OF LABOR
Employee Benefits Security Administration
Agency Information Collection Activities; Request for Public Comment
AGENCY:
Employee Benefits Security Administration (EBSA), Department of Labor.
ACTION:
Notice.
SUMMARY:
The Department of Labor (the Department), in accordance with the Paperwork Reduction Act, provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Employee Benefits Security Administration (EBSA) is soliciting comments on the proposed extension of the information collection requests (ICRs) contained in the documents described below. A copy of the ICRs may be obtained by contacting the office listed in the ADDRESSES section of this notice. ICRs also are available at reginfo.gov ( http://www.reginfo.gov/public/do/PRAMain ).
DATES:
Written comments must be submitted to the office shown in the Addresses section on or before September 20, 2022.
ADDRESSES:
James Butikofer, Department of Labor, Employee Benefits Security Administration, 200 Constitution Avenue NW, Room N-5718, Washington, DC 20210, or ebsa.opr@dol.gov.
SUPPLEMENTARY INFORMATION:
I. Current Actions
This notice requests public comment on the Department's request for extension of the Office of Management and Budget's (OMB) approval of ICRs contained in the rules and prohibited transaction exemptions described below. The Department is not proposing any changes to the existing ICRs at this time. An agency may not conduct or sponsor, and a person is not required to respond to, an information collection unless it displays a valid OMB control number. A summary of the ICRs and the burden estimates follows:
Agency: Employee Benefits Security Administration, Department of Labor.
Title: Class Exemption for Certain Transactions Involving Purchase of Securities where Issuer May Use Proceeds to Reduce or Retire Indebtedness to Parties in Interest (PTE 1980-83).
Type of Review: Extension of a currently approved collection of information.
OMB Number: 1210-0064.
Affected Public: Private sector, Businesses or other for-profits.
Respondents: 25.
Responses: 25.
Estimated Total Burden Hours: 15.
Estimated Total Burden Cost (Operating and Maintenance): $0.
Description: Class exemption PTE 80-83, granted on November 4, 1980, allows employee benefit plans to purchase securities, which may aid the issuer of the securities to reduce or retire indebtedness to a party in interest. The principal requirements of the exemption are that the securities must be sold as part of a public offering, and the price paid for the securities must not be in excess of the original offering price. This exemption also provides relief from the prohibited transaction provisions of Section 4975 of the Internal Revenue Code (the Code).
This class exemption allows employee benefit plans to purchase securities that may aid the issuer of the securities to reduce or retire indebtedness to a party in interest. Without the relief provided by the class exemption, a standard type of financial/business transaction between financial service providers and employee benefit plans would be barred under ERISA's prohibited transaction provisions.
[top] In order to take advantage of the relief provided by this class exemption, employee benefit plans must comply with all of the applicable conditions of the exemption, including the requirement to keep records regarding transactions covered by the exemption that are sufficient to establish that the conditions of the exemption have been met. The records must be maintained for a period of at least six years from a covered transaction and must be made unconditionally available at their customary location for examination
The Department has the authority to request such records from time to time in the course of performing investigations; however, the primary purpose of the recordkeeping condition of the exemption is to ensure access to pertinent records by participants, fiduciaries and contributing employers and thereby enable oversight of compliance with section 408(a)(3) of ERISA, which requires that the Department ensure the protection of participant rights in granting exemptive relief. The Department has received approval from OMB for this ICR under OMB Control No. 1210-0064. The current approval is scheduled to expire on January 31, 2023.
Agency: Employee Benefits Security Administration, Department of Labor.
Title: Petition for Finding under the Employee Retirement Income Security Act Section 3(40).
Type of Review: Extension of a currently approved collection of information.
OMB Number: 1210-0119.
Affected Public: Not for-profit institutions, Businesses or other for-profits.
Respondents: 10.
Responses: 10.
Estimated Total Burden Hours: 50.
Estimated Total Burden Cost (Operating and Maintenance): $42,695.
Description: The "multiple employer welfare arrangement" (MEWA) is established and maintained under Section 3(40) of the Employee Retirement Income Security Act of 1974 (ERISA) for the purpose of offering or providing [welfare plan benefits] to the employees of two or more employers, (including one or more self-employed individuals), or their beneficiaries. Under Section 514(b)(6) of ERISA, an employee welfare benefit plan that is a MEWA is generally subject to state insurance law. However, any such plan or other arrangement that is established or maintained under or pursuant to one or more agreements that the Secretary of Labor (the Secretary) finds to be collectively bargained is not subject to state insurance law. Rules, codified at 29 CFR 2570.150, set forth an administrative procedure ("procedural rules") for obtaining a determination by the Secretary as to whether a particular MEWA that is an employee welfare benefit plan is established or maintained under or pursuant to one or more collective bargaining agreements for purposes of section 3(40) of ERISA. These procedural rules set forth specific criteria in 29 CFR 2510.3-40 that, if met, constitute a finding by the Secretary that a plan is collectively bargained.
To initiate adjudicatory proceedings, an entity is required to file a petition for a determination under Section 3(40) of ERISA with an Administrative Law Judge (ALJ). The petition must identify the parties, describe the basis on which the petition is being filed and the plan in question, provide evidence that the plan satisfies the criteria to be a plan, and include affidavits as to both the competency of the affiant to testify and the facts that allegedly establish the plan as being established under or pursuant to agreements that the Secretary finds to be a collective bargaining agreement.
This collection of information is used by the Department in connection with proceedings to determine whether a plan or other arrangement is established or maintained pursuant to one or more agreements that which the Secretary finds to be a collective bargaining agreement under Section 3(40) of ERISA. The Department has received approval from OMB for this ICR under OMB Control No. 1210-0119. The current approval is scheduled to expire on January 31, 2023.
Title: Notice Requirements of the Health Care Continuation Coverage Provisions.
Type of Review: Extension of a currently approved collection of information.
OMB Number: 1210-0123.
Affected Public: Not for-profit institutions, Businesses or other for-profits.
Respondents: 660,653.
Responses: 18,128,968.
Estimated Total Burden Hours: 0.
Estimated Total Burden Cost (Operating and Maintenance): $37,133,409.
Description: The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) provides that under certain circumstances participants and beneficiaries of group health plans that satisfy the definition of "qualified beneficiaries" under COBRA may elect to continue group health coverage temporarily following events known as "qualifying events" that would otherwise result in loss of coverage. The Secretary of Labor (the Secretary) has the authority under section 608 of the Employee Retirement Income Security Act of 1974 (ERISA) to prescribe regulations to carry out the provisions of Part 6 of Title I of ERISA.
The Department has issued regulations implementing the Notice Requirements of Section 606 of ERISA (regulations) because the provision of timely and adequate notifications regarding COBRA rights and responsibilities is critical to a qualified beneficiary's ability to obtain health continuation coverage. In addition, in the Department's view, regulatory guidance was necessary to establish clearer standards for administering and processing COBRA notices.
Under the regulatory guidelines, plan administrators are required to distribute notices: a general notice to be distributed to all participants in group health plans subject to COBRA; an employer notice that must be completed by the employer upon the occurrence of a qualifying event; a notice and election form to be sent to a participant upon the occurrence of a qualifying event that might cause the participant to lose group health coverage; an employee notice that may be completed by a qualified beneficiary upon the occurrence of certain qualifying events such as divorce or disability; and, two other notices, one of early termination and the other a notice of unavailability. Also included in the ICR are two model notices that the Department believes will help reduce costs for service providers in preparing and delivering notices to comply with the regulations.
The provision of timely and adequate notifications is critical for the effective exercise of COBRA rights. Failure on the part of a plan administrator to meet notice requirements might result in a qualified beneficiary's losing out on continuation coverage, assessment of fines on a plan administrator, or other adverse consequences. The Department has received approval from OMB for this ICR under OMB Control No. 1210-0123. The current approval is scheduled to expire on January 31, 2023.
Title: Statutory Exemption for Cross-Trading of Securities.
Type of Review: Extension of a currently approved collection of information.
OMB Number: 1210-0130.
Affected Public: Not for-profit institutions, Businesses or other for-profits.
Respondents: 297.
Responses: 2,673.
Estimated Total Burden Hours: 3,104.
Estimated Total Burden Cost (Operating and Maintenance): $13,400.
[top] Description: The Statutory Exemption for Cross-Trading of Securities regulation (29 CFR 2550.408b-19) implements the content requirements for the written cross-trading policies and procedures required under section 408(b)(19)(H) of ERISA, as added by section 611(g) of the Pension Protection
On October 7, 2008, the Department issued final regulations regarding cross-trading policies and procedures (73 FR 58450). The regulation provides that the policies and procedures for cross-trading under the new statutory exemption must: (1) be written in a manner calculated to be understood by the plan fiduciary authorizing cross-trading, (2) be sufficiently detailed to facilitate a periodic review of all cross-trades by a compliance officer designated by the investment manager and a determination by the compliance officer that the cross-trades comply with the investment manager's written cross-trading policies and procedures, (3) include, at a minimum: (a) a statement of general policy which describes the criteria that will be applied by the investment manager in determining that execution of a securities transaction as a cross-trade will be beneficial to both parties to the transaction; (b) a description of how the investment manager will determine the price at which the securities are cross-traded, in a manner that is consistent with 17 CFR 270.17a-7(b) and SEC interpretations thereunder, including the identity of sources used to establish the price; (c) a description of how the investment manager's policies and procedures will mitigate any potentially conflicting division of loyalties and responsibilities to the parties involved in any cross-trade transaction; (d) a requirement that the investment manager allocate cross-trades among accounts participating in the cross-trading program in an objective and equitable manner and a description of the policies and procedures that will be used; (e) the identity of the compliance officer responsible for reviewing the investment manager's compliance with 408(b)(19) of ERISA and its written cross-trading policies and procedures and the compliance officer's qualifications for this position; (f) the steps to be performed by the compliance officer during its periodic review of the investment manager's purchases and sales of securities to ensure compliance with the written cross-trading policies and procedures; and (g) a description of the procedures by which the compliance officer will determine whether the requirements of section 408(b)(19) of ERISA are met.
The statutory exemption requires, as a condition to exemptive relief, that an investment manager's policies and procedures regarding cross-trading be provided in advance to the fiduciary of any plan that is considering agreeing to allow its assets to be managed under the investment manager's cross-trading program. The investment manager is also required, under the statutory exemption, to designate a compliance officer responsible for periodically reviewing the investment manager's cross-trading program to ensure compliance with the investment manager's cross-trading written policies and procedures. The statutory exemption requires the compliance officer to issue an annual report to each plan fiduciary describing the steps performed during the course of the review, the level of compliance, and any specific instances of noncompliance. The exemption does not require any reporting or filing with the Federal government
The information will be used by the plan fiduciary to assess the initial and continued appropriateness of investing plan assets subject to a cross-trading program. The information will enable the plan fiduciary to fulfill its fiduciary duties under the plan and to protect plan assets on behalf of plan participants and beneficiaries. The Department has received approval from OMB for this ICR under OMB Control No. 1210-0130. The current approval is scheduled to expire on January 31, 2023.
Title: Model Employer Children's Health Insurance Program Notice.
Type of Review: Extension of a currently approved collection of information.
OMB Number: 1210-0137.
Affected Public: Businesses or other for-profits, Farms, Not for-profit institutions.
Respondents: 6,197,922.
Responses: 198,845,095.
Estimated Total Burden Hours: 721,891.
Estimated Total Burden Cost (Operating and Maintenance): $17,325,373.
Description: On February 4, 2009, President Obama signed the Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA, Pub. L. 111-3). Under ERISA section 701(f)(3)(B)(i)(I), Public Health Service Act (PHS) section 2701(f)(3)(B)(i)(I), and section 9801(f)(3)(B)(i)(I) of the Internal Revenue Code, as added by Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA), an employer that maintains a group health plan in a State that provides medical assistance under a State Medicaid plan under title XIX of the Social Security Act (SSA), or child health assistance under a State child health plan under title XXI of the SSA, in the form of premium assistance for the purchase of coverage under a group health plan, is required to make certain disclosures. Specifically, the employer is required to notify each employee of potential opportunities currently available in the State in which the employee resides for premium assistance under Medicaid and CHIP for health coverage of the employee or the employee's dependents. These notices are referred as "Employer CHIP Notices."
ERISA section 701(f)(3)(B)(i)(II) requires the Department of Labor to provide employers with model language for the Employer CHIP Notices to enable them to timely comply with this requirement, which is referred as the "Model Employer CHIP Notice." The model language is required to include information on how an employee may contact the State in which the employee resides for additional information regarding potential opportunities for premium assistance, including how to apply for such assistance.
The Department has received approval from OMB for this ICR under OMB Control No. 1210-0137. The current approval is scheduled to expire on January 31, 2023.
Title: Plan Asset Transactions Determined by In-House Asset Managers under Prohibited Transaction Class Exemption 96-23.
Type of Review: Extension of a currently approved collection of information.
OMB Number: 1210-0145.
Affected Public: Not for-profit institutions, Businesses or other for-profits.
Respondents: 20.
Responses: 20.
Estimated Total Burden Hours: 940.
Estimated Total Burden Cost (Operating and Maintenance): $400,000.
[top] Description: The Department granted PTE 84-14 (49 FR 9494, as corrected 50 FR 41430), a class exemption that permits various parties in interest (as defined in ERISA section 3(14)) to employee benefit plans to engage in transactions involving plan assets if, among other conditions, the assets are managed by a "qualified professional asset manager" (QPAM), but still did
PTE 96-23 contains requirements for written guidelines between an INHAM and a property manager that an INHAM has retained to act on its behalf. Because it is a customary business practice for agreements related to the investment of plan assets or transactions relating to the leasing of space to be described in writing, no burden was estimated for this provision. The information collection requirements included in this paperwork package for which there is a burden estimate consist of the requirements that the INHAM develop written policies and procedures designed to assure compliance with the conditions of the exemption and have an independent auditor conduct an annual INHAM exemption audit and issue an audit report to each plan.
The written policies and procedures will be used by an independent auditor to determine the INHAM's compliance with the exemption. An independent auditor will conduct an annual exemption audit and make a determination whether the INHAM is in compliance with the written policies and procedures and the objective requirements of the exemption. These information collections are designed to safeguard participants and beneficiaries in plans managed by INHAMS that are involved in transactions covered by the exemption. The exemption does not require any reporting or filing with the Federal government. The Department has received approval from OMB for this ICR under OMB Control No. 1210-0145. The current approval is scheduled to expire on January 31, 2023.
Title: Prohibited Transaction Class Exemption for Certain Transactions Between Investment Companies and Employee Benefit Plans (PTE 1977-4).
Type of Review: Extension of a currently approved collection of information.
OMB Number: 1210-0049.
Affected Public: Not for-profit institutions, Businesses or other for-profits.
Respondents: 846.
Responses: 279,653.
Estimated Total Burden Hours: 23,728.
Estimated Total Burden Cost (Operating and Maintenance): $117,954.
Description: PTE 77-4, which was originally granted on April 8, 1977, exempts from the prohibited transaction restrictions the purchase and sale by an employee benefit plan of shares from a registered, open-end investment company (mutual fund) when a fiduciary of the plan ( e.g., an investment manager) is also the investment advisor for the investment company.
Without the class exemption an open-end mutual fund could not sell shares to or purchase shares from a plan when the fiduciary with respect to the plan is also the investment advisor for the mutual fund. Such purchases and sales may serve the interest of the plans, provided that procedures designed to protect the interests of participants and beneficiaries from potential abuse are built into the transactions. Therefore, the exemption requires disclosure of any redemption fees in the current prospectus and the disclosure and approval of investment advisory and other fees by a second fiduciary so that the plan fiduciary can make informed judgments with respect to the prudence of the transactions. In the case of changes to the fee structure, the exemption requires that the second fiduciary be notified of the fee changes and approve in writing the continued purchase, sale, an investment in the shares of the mutual fund. The Department has received approval from OMB for this ICR under OMB Control No. 1210-0049. The current approval is scheduled to expire on February 28, 2023.
Title: Plan Asset Transactions Determined by Independent Qualified Professional Asset Managers under Prohibited Transaction Exemption 1984-14.
Type of Review: Extension of a currently approved collection of information.
OMB Number: 1210-0128.
Affected Public: Businesses or other for-profits.
Respondents: 4,031.
Responses: 4,071.
Estimated Total Burden Hours: 96,774.
Estimated Total Burden Cost (Operating and Maintenance): $40,311,395.
Description: Prohibited Transaction Exemption 84-14 (49 FR 9494, March 13, 1984, as corrected at 50 FR 41430, October 10, 1985, and amended at 70 FR 49305 (August 23, 2005)) (PTE 84-14) permits various parties who are related to employee benefit plans to engage in transactions involving plan assets if, among other conditions, the assets are managed by a "qualified professional asset manager" (QPAM). In 2003, the Department published a proposed amendment to the QPAM exemption and based on comments received many financial institutions were unaware that the class exemption did not provide relief for transactions by a QPAM in managing its own plans. On July 6, 2010, the Department adopted a final amendment to PTE 84-14 (75 FR 38837) permitting a QPAM to manage an investment fund that contains the assets of its own plan or the plan of an affiliate of the QPAM.
The information collection requirements that are conditions of Part V of the exemption include written policies and procedures and audit requirements for QPAM-sponsored plans. The written policies and procedures will be used by an independent auditor to determine the QPAM's compliance with the conditions of the exemption. An independent auditor will conduct an annual exemption audit and make a determination whether the QPAM is in compliance with the written policies and procedures and that the conditions of the exemption have been met. These information collections are designed to safeguard participants and beneficiaries in plans that are involved in transactions covered by the exemption. The exemption does not require any reporting or filing with the Federal government. The Department has received approval from OMB for this ICR under OMB Control No. 1210-0128. The current approval is scheduled to expire on February 28, 2023.
Title: Employee Benefit Plan Claims Procedure Under the Employee Retirement Income Security Act.
Type of Review: Extension of a currently approved collection of information.
OMB Number: 1210-0053.
Affected Public: Not for-profit institutions, Businesses or other for-profits.
Respondents: 6,223,774.
Responses: 1,465,526,748.
Estimated Total Burden Hours: 1,627,422.
Estimated Total Burden Cost (Operating and Maintenance): $1,959,351,534.
[top] Description: In November 2000, the Department issued a final regulation establishing minimum claims procedure requirements that all employee benefit plans under ERISA must meet in order to satisfy the requirements of section 503 of ERISA. Section 505 of ERISA authorizes the Secretary to prescribe regulations as appropriate or necessary to carry out the provisions of Title I of
The information collection requirements included in the claims procedure regulation ensure that participants and beneficiaries (claimants) receive adequate information regarding the plan's claims procedures and the plan's handling of specific benefit claims. The Department has received approval from OMB for this ICR under OMB Control No. 1210-0053. The current approval is scheduled to expire on April 30, 2023.
Title: Prohibited Transaction Class Exemption 1992-6: Sale of Individual Life Insurance or Annuity Contracts by a Plan.
Type of Review: Extension of a currently approved collection of information.
OMB Number: 1210-0063.
Affected Public: Businesses or other for-profits.
Respondents: 10,853.
Responses: 10,853.
Estimated Total Burden Hours: 2,171.
Estimated Total Burden Cost (Operating and Maintenance): $6,512.
Description: PTE 92-6 exempts from the prohibited transaction restrictions the sale of individual life insurance or annuity contracts held by an employee benefit plan to: (1) plan participants insured under such contracts; (2) relatives of such participants who are the beneficiaries under the contract, (3) employers, any of whose employees are covered by the plan; (4) other employee benefit plans that have a party in interest relationship; (5) owner-employees (as defined in section 401(c)(3) of the Code), (6) shareholder-employees (as defined in section 1379 of the Internal Revenue Code of 1954 as in effect on the day before the enactment of the Subchapter S Revision Act of 1982), or (7) trusts established by plan participants insured under such contracts or relatives of such participants who are the beneficiaries under the contract, for the cash surrender value of the contracts, provided certain conditions set forth in the class exemption are met.
The disclosure requirement incorporated within this class exemption is intended to protect the rights of plan participants and beneficiaries by putting them on notice of the plan's intention to sell insurance or annuity contracts under which they are insured, and by giving them the right of first refusal to purchase such contracts. Without this disclosure requirement, the Department, which may only grant an exemption if it can find that participants and beneficiaries are protected, would be unable to effectively enforce the terms of the class exemption and ensure user compliance. The Department has received approval from OMB for this ICR under OMB Control No. 1210-0063. The current approval is scheduled to expire on June 30, 2023.
Title: Notice to Employees of Coverage Options Under Fair Labor Standards Act Section 18B.
Type of Review: Extension of a currently approved collection of information.
OMB Number: 1210-0149.
Affected Public: Businesses or other for-profits, Farms, Not for-profit institutions.
Respondents: 7,850,126.
Responses: 32,068,268.
Estimated Total Burden Hours: 116,421.
Estimated Total Burden Cost (Operating and Maintenance): $5,238,964.
Description: Since January 1, 2014, individuals and employees of small businesses have had access to affordable coverage through a new competitive private health insurance market-Health Insurance Marketplace or also called "the exchange". Section 1512 of the Affordable Care Act created a new Fair Labor Standards Act (FLSA) section 18B [29 U.S.C. 218b] requiring a notice to employees of coverage options available through the Marketplace.
Section 18B of the FLSA generally provides that, in accordance with regulations promulgated by the Secretary of Labor, an applicable employer must provide each employee at the time of hiring, a written notice: (1) Informing the employee of the existence of Exchanges including a description of the services provided by the Exchanges, and the manner in which the employee may contact Exchanges to request assistance; (2) If the employer plan's share of the total allowed costs of benefits provided under the plan is less than 60 percent of such costs, then the employee may be eligible for a premium tax credit under section 36B of the Internal Revenue Code (the Code) if the employee purchases a qualified health plan through an Exchange; and (3) If the employee purchases a qualified health plan through an Exchange, the employee may lose the employer contribution (if any) to any health benefits plan offered by the employer and that all or a portion of such contribution may be excludable from income for Federal income tax purposes. The Department has received approval from OMB for this ICR under OMB Control No. 1210-0149. The current approval is scheduled to expire on June 30, 2023.
II. Focus of Comments
The Department is particularly interested in comments that:
• Evaluate whether the collections of information are necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the collections of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., by permitting electronic submissions of responses.
Comments submitted in response to this notice will be summarized and/or included in the ICR for OMB approval of the information collection; they will also become a matter of public record.
Signed at Washington, DC, this 15th day of July, 2022.
Ali Khawar,
Acting Assistant Secretary, Employee Benefits Security Administration, U.S. Department of Labor.
[FR Doc. 2022-15680 Filed 7-21-22; 8:45 am]
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