[Federal Register Volume 61, Number 150 (Friday, August 2, 1996)]
[Notices]
[Pages 40462-40464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19717]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Pension and Welfare Benefits Administration


Pension Payback Program (Amended)

AGENCY: Pension and Welfare Benefits Administration, Department of 
Labor.

ACTION: Notice of adoption of amended voluntary compliance program for 
restoration of delinquent participant contributions.

-----------------------------------------------------------------------

SUMMARY: This document announces certain amendments to a voluntary 
compliance program adopted by the Department on March 7, 1996. The 
program allows certain persons to avoid potential Employee Retirement 
Income Security Act (ERISA) civil actions initiated by the Department 
of Labor, the assessment of civil penalties under section 502(1) of 
ERISA and Federal criminal prosecutions arising from their failure to 
timely remit participant contributions and the failure to disclose such 
non-remittance. The program also includes relief from certain 
prohibited transaction liability. The amendments allow additional 
persons to take advantage of the program and clarify certain 
requirements. These amendments primarily conform the terms of the 
program to a prohibited transaction class exemption that the Department 
is also publishing today.

DATES: As amended by this notice, the program applies to certain 
delinquent contributions, and lost earnings on delinquent participant 
contributions, that are restored to pension plans on or after November 
28, 1995, but no later than September 7, 1996. Restorative payments 
must relate to amounts paid by participants or withheld by an employer 
from participants' wages for contribution to a pension plan on or 
before April 6, 1996. Written notification of intention to participate 
in the program must be received by the Department no later than 
September 7, 1996.

ADDRESSES: Notification of intention to participate in the program must 
be sent in writing to: Pension Payback Program, Pension and Welfare 
Benefits Administration, U.S. Department of Labor, P.O. Box 77235, 
Washington, DC 20013-7235.

FOR FURTHER INFORMATION CONTACT: Jeffrey Monhart, Pension Investigator, 
Office of Enforcement, Pension and Welfare Benefits Administration, 
U.S. Department of Labor, Washington, DC (202) 219-4377. (This is not a 
toll-free number).

SUPPLEMENTARY INFORMATION: On March 7, 1996, the Department published 
in the Federal Register a notice of adoption of a voluntary compliance 
program for restoration of delinquent participant contributions. 61 FR 
9203. The program, which is referred to as the Pension Payback Program, 
is designed to encourage employers to restore delinquent participant 
contributions to employee pension benefit plans as defined in section 
3(2) of ERISA. Under the program, employers who are eligible to 
participate and who comply with its conditions, may avoid potential 
civil actions under ERISA brought by the Department, and Federal 
criminal prosecutions arising from their failure to timely remit 
participant contributions and from the failure to disclose such non-
remittance.
    As a part of the program, the Department also published in the 
Federal Register on March 7, a proposed class exemption from the 
prohibited transaction provisions of ERISA. 61 FR 9199. In the notice 
of adoption, the Department stated that employers who participate in 
the program could rely on the proposed exemption notwithstanding any 
subsequent modifications made in issuing the final exemption. Pending 
promulgation by the Department of the final class exemption, the 
Department stated that it would not pursue enforcement against 
employers who comply with the conditions of the program and the 
proposed class exemption with respect to any prohibited transaction 
liability which may have arisen as a result of a delay in forwarding 
participant contributions. Similarly, the Internal Revenue Service 
advised the Department that it would not seek to impose the sanctions 
under sections 4975 (a) and (b) of the Internal Revenue Code with 
respect to any prohibited transaction that meets the requirements of 
the proposed class exemption.
    Today, the Department is publishing in the Federal Register the 
final class exemption setting forth the conditions for retroactive 
relief from ERISA's prohibited transaction provisions for eligible 
persons who comply with the conditions of the program. As a result of 
comments responding to the proposed exemption, the final exemption 
contains changes that, among other things, increase the number of 
persons who may take advantage of the program. A description of the 
changes and a discussion of the reasons for them appear in the 
supplementary information to the final class exemption published today.
    This document amends and supersedes the notice of adoption of the 
program issued on March 7, 1996, so that the terms of the program as a 
whole will remain consistent with the terms of the final class 
exemption. The principal amendment is that the program now applies to 
persons who restore or have restored delinquent participant 
contributions and earnings at any time on or after November 28, 1995, 
until September 7, 1996. The restored amounts must still relate to 
delinquent

[[Page 40463]]

participant contributions that were received or withheld by the 
employer no later than April 6, 1996.
    As a result of this change, it is necessary to amend the condition 
in the program that the maximum amount of outstanding delinquent 
participant contributions on March 7, 1996, excluding earnings, must 
not exceed the aggregate amount of participant contributions that were 
received or withheld for the 1995 calendar year. This condition remains 
unchanged for restorations that occur on or after March 7, 1996. Under 
the amended program, for restorations that occurred on or after 
November 28, 1995 and prior to March 7, 1995, the total outstanding 
delinquent participant contributions on November 28, 1995, excluding 
earnings, must not have exceeded the aggregate participant 
contributions received or withheld from the employees' wages for the 
twelve calendar months immediately preceding November 1995.
    This document reflects an amendment of the program provisions for 
calculation of the earnings or interest that must be restored in 
addition to delinquent participant contributions. Under the amendment, 
the earnings or interest must be calculated from the earliest date on 
which such contributions reasonably could have been segregated from the 
employer's general assets. Under the program as originally announced, 
earnings or interest were required to be calculated from the date on 
which the participant contribution was received or withheld by the 
employer.
    This document also contains a number of minor amendments intended 
to eliminate certain repetitive provisions of the program when it was 
originally issued and clarify the language and structure of its 
provisions. The amendments contained in this document are effective as 
of March 7, 1996, the date on which the Department first published the 
Program in the Federal Register.
    Except as provided in the class exemption, the Program does not 
afford relief from civil actions that may be filed by persons other 
than the Departments of Labor and Justice, and the Internal Revenue 
Service. Persons who have complied with the exemption's conditions will 
not be subject to the restrictions of sections 406(a)(1) (A) through 
(D), 406(b)(1) and 406(b)(2) of ERISA and the sanctions resulting from 
the application of section 4975 (a) and (b) of the Code, by reason of 
section 4975(c)(1) (A) through (E) of the Code, for transactions that 
result from such persons's failure to transmit participant 
contributions to pension plans in accordance with the time frames 
described in the participant contribution regulation at 29 CFR 2510.3-
102. The Program does not apply to criminal prosecutions brought by 
State government, although the Department has determined not to 
affirmatively refer information to the States for criminal prosecution 
concerning persons who voluntarily restore participant contributions in 
accordance with the terms of the program.

Notice of Adoption of Amended Voluntary Compliance Program for 
Restoration of Delinquent Participant Contribution

Amended Pension Payback Program

    The Department of Labor (the Department) today announced adoption 
of the Amended Pension Payback Program (the Program) which is designed 
to benefit workers by encouraging employers to restore delinquent 
participant contributions plus lost earnings to pension plans. The 
Program, which supersedes a program announced on March 7, 1996 (61 FR 
9199), is targeted at ``persons'', as that term is defined at section 
3(9) of the Employee Retirement Income Security Act (ERISA), who failed 
to transfer participant contributions to pension plans defined under 
section 3(2) of ERISA including section 401(k) plans, in accordance 
with the time frames described by the Department's regulations, and 
thus Violated Title I of ERISA.
    The Program is available to certain persons who voluntarily 
restore, or have restored, delinquent participant contributions to 
pension plans in accordance with the terms of the Program. Those who 
comply with the terms of the Program will avoid potential ERISA civil 
actions initiated by the Department, the assessment of civil penalties 
under section 502(1) of ERISA and Federal criminal prosecutions arising 
from their failure to timely remit such contributions and non-
disclosure of the non-remittance. The Department of Justice has 
indicated its support for the Program. The Department of Labor will not 
pursue enforcement against persons who comply with the conditions of 
the Program with respect to any prohibited transaction liability which 
may have arisen as a result of the person's delay in forwarding the 
participant contributions and who comply with the class exemption 
setting forth the conditions for retroactive exemptive relief published 
by the Department today in the Federal Register. The Department has 
further determined not to affirmatively refer information to the states 
for criminal prosecution concerning those persons who voluntarily 
restore participant contributions in accordance with the Program. The 
Department has also granted a class exemption (published today in the 
Federal Register) under section 408(a) of ERISA with respect to 
prohibited transactions which may have arisen as a result of a delay in 
remitting participant contributions.
    The Program only applies to certain delinquent participant 
contributions plus earnings that are restored to pension plans on or 
after November 28, 1995, but no later than September 7, 1996. Such 
restorative payments must relate to amounts paid by participants or 
withheld by an employer from participants' wages for contribution to a 
plan on or before April 6, 1996. The Program also applies to the 
restoration, on or after November 28, 1995, but no later than September 
7, 1996, of any earnings attributable to delinquent participant 
contributions that were restored to the plan prior to November 28, 
1995, without limit as to the amount of such earnings.
    The Program is available only if the following conditions are met:
    (1) All delinquent participant contributions, are restored to the 
employee benefit plan plus the greater of (a) or (b) below.
    (a) The amount that otherwise would have been earned on the 
participant contributions from the earliest date on which such 
contributions reasonably could have been segregated from the employer's 
general assets by the employer until the date such money is fully 
restored to the plan had such contributions been invested during such 
period in accordance with applicable plan provisions, or
    (b) Interest at a rate equal to the underpayment rate defined in 
section 6621(a)(2) of the Internal Revenue Code from the earliest date 
on which such contributions reasonably could have been segregated from 
the employer's general assets by the employer until the date such money 
is fully restored to the plan,
    In determining the amount described in (a) above for a participant 
directed defined contribution plan, the person seeking relief under the 
Program may apply the highest rate of return earned by any of the 
investment alternatives available under the plan during the applicable 
period.
    (2) The total outstanding delinquent contributions do not exceed 
the following limits:

[[Page 40464]]

    (a) For amounts restored on or after March 7, 1996, the delinquent 
contributions outstanding on March 7, 1996, excluding earnings, may not 
exceed the aggregate amount of participant contributions that were 
received or withheld from the employees' wages for calendar year 1995.
    (b) For amounts restored on or after November 28, 1995, but before 
March 7, 1996, the total of all outstanding delinquent participant 
contributions, excluding earnings, on November 28, 1995, cannot exceed 
the aggregate amount of participant contributions that were received or 
withheld from the employees' wages for the twelve calendar months 
immediately preceding November 1995.
    (3) The Department is notified in writing no later than September 
7, 1996 of the person's decision to participate in the Program and 
provided with: (a) Copies of cancelled checks or other written evidence 
demonstrating that all participant contributions and earnings have been 
restored to the employee benefit plan; (b) the certification described 
in paragraph (7) below; and (c) evidence of such bond as may be 
required under section 412 of ERISA.
    (4) The person informs the affected participants within 90 days 
following the notification of the Department described in paragraph (3) 
above, that prior delinquent contributions and lost earnings have been 
restored to their accounts pursuant to the person's participation in 
the Program and, thereafter, provides a copy of such notification to 
the Department. If a statement of account or other scheduled 
communication between the plan or its sponsor and the participants is 
scheduled to occur within this time period, such statement may include 
the notification required by this paragraph.
    (5) The person has complied with all conditions set forth in the 
class exemption issued by the Department today.
    (6) At the time that the Department is notified of the person's 
determination to participate in the Program, neither the Department nor 
any other Federal agency has informed such person of an intention to 
investigate or examine the plan or otherwise made inquiry with respect 
to the status of participant contributions under the plan.
    (7) Each person who applies for relief under the program shall 
certify in writing, under oath and pain of perjury, that it is in 
compliance with all terms and conditions of the Program and, to its 
knowledge, neither it nor any person acting under its supervision or 
control with respect to the operation of an ERISA covered employee 
benefit plan:
    (a) Is the subject of any criminal investigation or prosecution 
involving any offense against the United States;*
---------------------------------------------------------------------------

    *For purposes of this paragraph, an ``offense'' includes 
criminal activity for which the Department of Justice may seek civil 
injunctive relief under the Racketeer Influenced and Corrupt 
Organizations statute (18 U.S.C. Sec. 1964(b)). A ``subject'' is any 
individual or entity whose conduct is within the scope of any 
ongoing inquiry being conducted by a federal investigator(s) who is 
authorized to investigate criminal offenses against the United 
States.
---------------------------------------------------------------------------

    (b) Has been convicted of a criminal offense involving employee 
benefit plans at any time or any other offense involving financial 
misconduct which was punishable by imprisonment exceeding one year for 
which sentence was imposed during the preceding thirteen years or which 
resulted in actual imprisonment ending within the last thirteen years, 
nor has such person entered into a consent decree with the Department 
or been found by a court of competent jurisdiction to have violated any 
fiduciary responsibility provisions of ERISA during such period; or
    (c) Has sought to assist or conceal the non-remittance of 
participant contributions by means of bribery, graft payments to 
persons with responsibility for ensuring remittance of plan 
contributions or with the knowing assistance of persons engaged in 
ongoing criminal activity.

    Signed at Washington, DC this 30th day of July, 1996.
Olena Berg,
Assistant Secretary, Pension and Welfare Benefits Administration, 
Department of Labor.
[FR Doc. 96-19717 Filed 8-1-96; 8:45 am]
BILLING CODE 4510-29-M