[Federal Register Volume 68, Number 22 (Monday, February 3, 2003)]
[Notices]
[Pages 5374-5375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-2163]



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Part III





Department of Labor





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Office of the Secretary



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Delegation of Authority and Assignment of Responsibilities to the 
Employee Benefits Security Administration; Notice

  Federal Register / Vol. 68, No. 22 / Monday, February 3, 2003 / 
Notices  

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DEPARTMENT OF LABOR

Office of the Secretary

[Secretary's Order 1-2003]


Delegation of Authority and Assignment of Responsibilities to the 
Employee Benefits Security Administration

    1. Purpose. To delegate authority and assign responsibilities for 
the administration of the Department of Labor's responsibilities under 
the Employee Retirement Income Security Act of 1974 (ERISA), the 
Welfare and Pension Plans Disclosure Act (WPPDA) and the Federal 
Employees' Retirement System Act of 1986 (FERSA), and to change the 
name of the Office of the Assistant Secretary for Pension and Welfare 
Benefits and the Pension and Welfare Benefits Administration (PWBA).
    2. Authority and Directives Affected. This Order is issued pursuant 
to 5 U.S.C. 301; 29 U.S.C. 551, et seq.; and 5 U.S.C. 5315. This order 
supersedes Secretary's Order 1-87, 52 FR 13139 (Apr. 21, 1987), and the 
memoranda to Meredith Miller, on Oct. 28, 1998, 63 FR 59339 (Nov. 3, 
1998), and on Dec. 16, 1998, 63 FR 71506 (Dec. 28, 1998).
    3. Background. ERISA places responsibility in the Department of 
Labor for the administration of a comprehensive program to protect the 
interests of participants and beneficiaries of private sector employee 
benefit plans.
    Secretary's Order 1-87 delegated authority for this program to the 
Pension and Welfare Benefits Administration (PWBA), which was headed by 
the Assistant Secretary for Pension and Welfare Benefits who reported 
to the Secretary of Labor.
    FERSA requires the Department of Labor to, among other things, 
administer and enforce the fiduciary responsibility, prohibited 
transaction, and bonding provisions of FERSA. Secretary's Order 1-87 
also delegated these responsibilities to PWBA.
    In more recent years, statutes such as the Health Insurance 
Portability and Accountability Act of 1996 (HIPAA), the Newborns' and 
Mothers' Health Protection Act of 1996, the Mental Health Parity Act of 
1996, the Women's Health and Cancer Rights Act of 1998 and the Child 
Support Performance and Incentive Act of 1998 amended ERISA. Pursuant 
to Secretary's Order 1-87, PWBA has carried out the Department's 
additional responsibilities under these Acts.
    Changing the agency's name to the Employee Benefits Security 
Administration (EBSA) will more clearly communicate the agency's 
mission of protecting private sector employee benefits. Restating the 
delegations contained in Secretary's Order 1-87, and including an 
additional delegation regarding claims of governmental privileges, 
previously published separately, will provide a single source for 
questions regarding the Assistant Secretary's current authority and 
responsibility.
    4. Re-Designation of the Assistant Secretary for Pension and 
Welfare Benefits and the Pension and Welfare Benefits Administration. 
a. The title and position of Assistant Secretary for Pension and 
Welfare Benefits is re-designated Assistant Secretary for Employee 
Benefits Security. The Office of the Assistant Secretary for Pension 
and Welfare Benefits is re-designated the Office of the Assistant 
Secretary for Employee Benefits Security, and
    b. The Pension and Welfare Benefits Administration is re-designated 
as the Employee Benefits Security Administration.
    c. All offices, subdivisions and positions within the Department of 
Labor deriving their names in whole, or in part, from the Office of the 
Assistant Secretary for Pension and Welfare Benefits or the Pension and 
Welfare Benefits Administration shall accomplish an appropriate change 
of name pursuant to this order.
    d. All employees of the Office of the Assistant Secretary for 
Pension and Welfare Benefits and the Pension and Welfare Benefits 
Administration are re-designated employees of the Office of the 
Assistant Secretary for Employee Benefits Security or the Employee 
Benefits Security Administration, respectively.
    e. All programs, activities, functions, and responsibilities 
delegated to the Office of the Assistant Secretary for Pension and 
Welfare Benefits or the Pension and Welfare Benefits Administration are 
re-designated programs, activities, functions and responsibilities of 
the Office of the Assistant Secretary for Employee Benefits Security or 
the Employee Benefits Security Administration, respectively.
    f. All currently effective delegations made by the Assistant 
Secretary for Pension and Welfare Benefits to employees of the Pension 
and Welfare Benefits Administration are deemed delegations by the 
Assistant Secretary for Employee Benefits Security to employees of the 
Employee Benefits Security Administration.
    g. Other agencies within the Department of Labor shall make any 
appropriate re-designation in conformity with the spirit and purpose of 
this order.
    5. Delegation of Authority and Assignment of Responsibilities. a. 
Except as hereinafter provided, the Assistant Secretary for Employee 
Benefits Security is delegated the authority (including the authority 
to re-delegate) and assigned the responsibilities of the Secretary of 
Labor:
    (1) Under the following statutes, including any amendments:
    (i) The Employee Retirement Income Security Act of 1974, as 
amended, except for subtitle C of title III and title IV (29 U.S.C. 
1001-1232);
    (ii) The Welfare and Pension Plans Disclosure Act of 1958, as 
amended Pub. L. 85-836, 72 Stat. 997; Pub. L. 86-624, 74 Stat. 417; 
Pub. L. 87-420, 76 Stat. 35.
    (iii) The Federal Employees' Retirement System Act of 1986 (5 
U.S.C. 8401-8479); and
    (iv) As directed by the Secretary, such additional Federal acts 
similar to or related to those listed in paragraphs (i) through (iii), 
above, that from time to time may assign additional authority or 
responsibilities to the Secretary.
    (2) To request information the Internal Revenue Service (IRS) 
possesses for use in connection with the administration of title I of 
ERISA of 1974.
    (3) To invoke all appropriate governmental privileges, arising from 
the functions of the Employee Benefits Security Administration, 
following his/her personal consideration of the matter and in 
accordance with the following guidelines:
    (i) Generally Applicable Guidelines. The Assistant Secretary may 
not re-delegate the authority to invoke a privilege. The privilege may 
be asserted only with respect to specifically described information and 
only where the Assistant Secretary determines the privilege is 
applicable. In asserting a privilege, the Assistant Secretary shall 
articulate in writing specific reasons for preserving the 
confidentiality of the information.
    (ii) Informant's Privilege (to protect from disclosure the identity 
of any person who has provided information to the Employee Benefits 
Security Administration in cases arising under the statutory provisions 
listed in paragraph 5.a.(1) of this order that are delegated or 
assigned to the Employee Benefits Security Administration). To assert 
this privilege, the Assistant Secretary must first determine that 
disclosure of the privileged matter may: (A) Interfere with the 
Employee Benefits Security Administration's enforcement

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of a particular statute for which it exercises investigative or 
enforcement authority; (B) adversely affect persons who have provided 
information to the Employee Benefits Security Administration; or (C) 
deter other persons from reporting violations of the statute.
    (iii) Deliberative Process Privilege (to withhold information which 
may disclose pre-decisional intra-agency or inter-agency deliberations 
in cases arising under the statutory provisions listed in paragraph 
5.a.(1) of this order including: The analysis and evaluation of facts; 
written summaries of factual evidence; and recommendations, opinions, 
or advice on legal or policy matters). To assert this privilege, the 
Assistant Secretary must first determine that: (A) The information is 
not purely factual and does not concern recommendations that the 
department expressly adopted or incorporated by reference in its 
ultimate decision; (B) the information was generated prior to and in 
contemplation of a decision by a part of the Department; and (C) 
disclosure of the information would have an inhibiting effect on the 
Department's decision-making processes.
    (iv) Privilege for Investigative Files compiled for law enforcement 
purposes (to withhold information which may reveal the Employee 
Benefits Security Administration's confidential investigative 
techniques and procedures). To assert this privilege, the Assistant 
Secretary must first determine that disclosure of the privileged matter 
may have an adverse impact upon the Employee Benefits Security 
Administration's enforcement of the statutory provisions listed in 
paragraph 5.a.(1) of this order, by: (A) Disclosing investigative 
techniques and methodologies; (B) deterring persons from providing 
information to the Employee Benefits Security Administration; (C) 
prematurely revealing the facts of the Department's case; or (D) 
disclosing the identities of persons who have provided information 
under an express or implied promise of confidentiality.
    (v) Prior to filing a formal claim of privilege, the Assistant 
Secretary shall personally review the information sought to be 
withheld, including all the documents sought to be withheld (or, in 
cases where the volume of information is so large all of it cannot be 
personally reviewed in a reasonable time, an adequate and 
representative sample of such information) and a description or summary 
of the litigation in which the disclosure is sought.
    (vi) The Assistant Secretary may comply with any additional 
requirements imposed by local court rules or precedent in asserting a 
governmental privilege.
    (vii) In asserting a governmental privilege, the Assistant 
Secretary may ask the Solicitor of Labor or the Solicitor's 
representative to prepare and file any necessary legal papers or 
documents.
    b. The Solicitor of Labor is responsible for providing legal advice 
and assistance to all officials of the Department relating to the 
administration of the statutes listed in paragraph 5.a.(1) of this 
order, for bringing appropriate legal actions on behalf of the 
Secretary, and representing the Secretary in all civil proceedings. The 
Solicitor of Labor is also authorized to request information the IRS 
possesses for use in connection with the administration of title I of 
ERISA.
    c. The Inspector General is authorized to request information the 
IRS possesses for use in connection with the administration of title I 
of ERISA.
    6. Reservation of Authority. a. The submission of reports and 
recommendations to the President and the Congress concerning the 
administration of the statutes listed in paragraph 5.a.(1) of this 
order and responsibilities under subtitle C of title III of ERISA are 
reserved to the Secretary. The Pension Benefit Guaranty Corporation 
carries out responsibilities under title IV of ERISA.
    b. This Secretary's Order does not affect the authorities and 
responsibilities of the Office of Inspector General under the Inspector 
General Act of 1978, as amended, or under Secretary's Order 2-90 
(January 31, 1990).
    7. Effective Date. This order is effective upon the date of 
publication in the Federal Register.

    Dated: January 23, 2003.
Elaine L. Chao,
Secretary of Labor.
[FR Doc. 03-2163 Filed 1-31-03; 8:45 am]
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