[Federal Register Volume 72, Number 178 (Friday, September 14, 2007)]
[Proposed Rules]
[Pages 52527-52534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-18073]


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DEPARTMENT OF LABOR

Employee Benefits Security Administration

29 CFR Part 2520

RIN 1210-AB21


Multi-Employer Pension Plan Information Made Available on Request

AGENCY: Employee Benefits Security Administration, Labor.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document contains a proposed regulation that, upon 
adoption, would implement amendments to the Employee Retirement Income 
Security Act of 1974, as amended (ERISA or the Act), requiring the 
administrator of a multi-employer plan to provide copies of certain 
actuarial and financial information about the plan to participants and 
others upon request. The amendments, enacted by the Pension Protection 
Act of 2006, added subsection (k) to section 101 of ERISA. The proposed 
regulation would affect plan administrators, participants and 
beneficiaries of multi-employer plans, as well as employee 
representatives of such participants and employers that have an 
obligation to contribute to such plans.

DATES: Written comments on the proposed regulation should be received 
by the Department of Labor on or before October 15, 2007.

ADDRESSES: To facilitate the receipt and processing of comments, the 
Department encourages interested persons to submit their comments 
electronically by e-mail to [email protected], or by using the Federal 
eRulemaking portal at www.regulations.gov (follow

[[Page 52528]]

instructions for submission of comments). Persons submitting comments 
electronically are encouraged not to submit paper copies. Persons 
interested in submitting comments on paper should send or deliver their 
comments (at least three copies) to the Office of Regulations and 
Interpretations, Employee Benefits Security Administration, Room N-
5669, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Washington, DC 20210, Attention: ERISA 101(k) Regulation. Comments 
received will be posted without change to www.regulations.gov and 
www.dol.gov/ebsa, and available for public inspection at the Public 
Disclosure Room, N-1513, Employee Benefits Security Administration, 200 
Constitution Avenue, NW., Washington, DC 20210, including any personal 
information provided.

FOR FURTHER INFORMATION CONTACT: Stephanie L. Ward, Office of 
Regulations and Interpretations, Employee Benefits Security 
Administration, (202) 693-8500. This is not a toll-free number.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 502(a)(1) of the Pension Protection Act of 2006, Public Law 
109-280, 120 Stat. 780 (PPA), which was enacted on August 17, 2006, 
amended the Employee Retirement Income Security Act of 1974, as amended 
(ERISA or the Act), by adding section 101(k). Section 101(k)(1) of 
ERISA requires the administrator of a multi-employer pension plan, upon 
written request, to furnish certain documents to any plan participant, 
beneficiary, employee representative, or any employer that has an 
obligation to contribute to the plan. The documents that are required 
to be furnished are: (A) A copy of any periodic actuarial report 
(including sensitivity testing) received by the plan for any plan year 
which has been in the plan's possession for at least 30 days; (B) a 
copy of any quarterly, semi-annual, or annual financial report prepared 
for the plan by any plan investment manager or advisor or other 
fiduciary which has been in the plan's possession for at least 30 days; 
and (C) a copy of any application filed with the Secretary of the 
Treasury requesting an extension under section 304 of the Act (or 
section 431(d) of the Internal Revenue Code of 1986) and the 
determination of such Secretary pursuant to such application.
    Section 502(a)(2) of the PPA amended section 502(c)(4) of ERISA to 
provide that the Secretary of Labor may assess a civil penalty of not 
more than $1,000 a day for each violation of section 101(k). Section 
502(a)(3) of the PPA provides that the Secretary of Labor shall 
prescribe regulations under section 101(k)(2) not later than one year 
after the date of enactment of the PPA. Section 502(d) of the PPA 
provides that section 101(k) shall apply to plan years beginning after 
December 31, 2007.

B. Overview of Proposed Regulation

    Included in this notice is a proposed regulation that, upon 
adoption, would implement the new disclosure requirement under section 
101(k) of the Act. Interested parties are invited to comment on all 
aspects of the regulation. The Department intends to publish a separate 
regulation implementing the Secretary's authority to assess civil 
penalties under section 502(c)(4) of ERISA at a later date.
    Paragraph (a) of the proposed regulation provides that the 
administrator of a multi-employer pension plan shall furnish copies of 
actuarial, financial and funding-related documents to certain persons 
who make written requests to the plan.
    For purposes of paragraph (a), a person entitled to request and 
receive documents is any participant within the meaning of section 3(7) 
of the Act; any beneficiary receiving benefits under the plan; any 
labor organization representing participants under the plan; or any 
employer that is a party to the collective bargaining agreement(s) 
pursuant to which the plan is maintained or who otherwise may be 
subject to withdrawal liability pursuant to section 4203 of the Act. 
See Sec.  2520.101-6(d). In this regard, the phrase ``any employer that 
has an obligation to contribute to the plan'' under section 101(k) of 
the Act has been construed under paragraph (d)(4) of the proposed 
regulation in a manner that is consistent with the construction given 
to similar language under section 101(f) of ERISA, which relates to 
annual funding notices of multi-employer defined benefit pension 
plans.\1\
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    \1\ See 29 CFR 2520.101-4(f)(4); 71 FR 1904, Jan. 11, 2006.
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    Paragraph (b)(1) of the proposed regulation provides that the plan 
administrator must furnish the requested document or documents to the 
requester not later than 30 days after the date the written request is 
received by the plan, subject to the limitations in paragraphs (b)(3) 
and (b)(4).
    Paragraph (b)(3) of the proposed regulation provides that a plan 
administrator is not required to furnish to any requester more than one 
copy of a document described in paragraph (c) during any 12-month 
period. Thus, an eligible requester would not be entitled to receive 
more than one copy of the same financial report within a 12-month 
period. This limitation, however, does not mean that an eligible 
requester would not be entitled to request and receive copies of two 
different reports (e.g., one financial report and one actuarial report) 
during any 12-month period. For purposes of the application of this 12-
month limitation, the Department is of the view that the 12-month 
period commences from the earlier of the date the plan actually 
responds to a request or the 30th day referenced in paragraph (b)(1) of 
the regulation.
    Paragraph (b)(4) of the proposed regulation permits the plan 
administrator to charge the requester for the reasonable costs of 
furnishing documents. The PPA specifically authorizes the Department to 
prescribe in regulations the maximum amount that would be considered a 
reasonable charge for furnishing documents under this section. For this 
purpose, the Department proposes that a reasonable charge may not 
exceed the lesser of the actual cost to the plan for the least 
expensive means of acceptable reproduction of the document, or 25 cents 
per page, plus the cost of mailing or otherwise delivering the 
requested document. This standard adopts the existing reasonable charge 
standard under 29 CFR 2520.104b-30, but also permits the plan 
administrator to charge the requester the actual cost to the plan of 
mailing or delivering the document or information.
    Paragraph (b)(2) provides that such documents must be furnished in 
a manner consistent with the general furnishing requirements set forth 
in 29 CFR 2520.104b-1 including the use of electronic media. See Sec.  
2520.104b-1(c). In this regard, wherever possible, the Department 
encourages plan administrators to use electronic media to furnish 
requested information in order to reduce compliance costs under the 
regulation.\2\
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    \2\ As part of a separate rulemaking initiative, the Department 
is undertaking a review of the rules in paragraph (c) of Sec.  
2520.104b-1 relating to disclosure through electronic media. The 
Department is reviewing these rules in light of advances in 
technology and new disclosure requirements under ERISA following 
enactment of the PPA.
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    Paragraph (c) of the proposed regulation delineates the documents 
that must be disclosed pursuant to section 101(k). Paragraph (c)(1) 
provides that information subject to the disclosure requirement in 
paragraph (a) consists of a copy of any periodic

[[Page 52529]]

actuarial report (including any sensitivity testing) received by the 
plan that has been in the plan's possession for at least 30 days before 
the plan receives the written request; a copy of any quarterly, semi-
annual, or annual financial report prepared for the plan by any plan 
investment manager or advisor (without regard to whether such advisor 
is a fiduciary within the meaning of section 3(21) of the Act) or other 
fiduciary which has been in the plan's possession for at least 30 days 
before the plan receives the written request; and a copy of any 
application filed by the plan sponsor with the Secretary of the 
Treasury requesting an amortization extension under section 304 of the 
Act or section 431(d) of the Internal Revenue Code of 1986 and the 
determination of such Secretary pursuant to such application.
    To provide plan administrators with clarity regarding their 
disclosure obligations under section 101(k), the proposed regulation 
clarifies that financial reports prepared by advisors are subject to 
disclosure without regard to whether the advisor or advisors are 
fiduciaries within the meaning of section 3(21) of ERISA. See Sec.  
2520.101-6(c)(1)(ii). The Department specifically requests comments on 
whether this clarification alone provides sufficient certainty as to 
what financial reports are required to be disclosed, or, whether, in 
addition, the term ``financial report'' should also be clarified in 
regulation and, if so, how.
    Paragraph (c)(2) provides that documents required to be disclosed 
under the regulation shall not include certain information. In this 
regard, paragraph (c)(2)(i) provides that required disclosures do not 
include the information or data which served as the basis for such 
report or application, e.g., the data behind or underlying a report or 
application. In addition, paragraph (c)(2)(ii) of the proposed 
regulation provides that disclosed reports or applications shall not 
include any information that the plan administrator reasonably 
determines to be either individually identifiable information regarding 
any plan participant, beneficiary, employee, fiduciary, or contributing 
employer, or proprietary information regarding the plan, any 
contributing employer, or entity providing services to the plan. The 
Department specifically invites comment on whether clarification is 
needed with respect to determinations regarding what information should 
be considered ``proprietary'' or ``individually identifiable'' in this 
context and, if so, what standards should govern such determinations. 
In this regard, paragraph (c)(2)(ii) of the proposed rule clarifies 
that, in responding to a request under the regulation, a plan 
administrator is required to inform the requester if the plan 
administrator withholds any information determined to be 
``proprietary'' or ``individually identifiable'' within the meaning of 
the restrictions in paragraph (c)(2) of the proposed regulation.
    Along with the proposed regulation under section 101(k), discussed 
above, this notice also includes amendments to 29 CFR 2520.104b-30, 
which provides guidelines for assessing a reasonable charge for 
furnishing plan documents pursuant to section 104(b)(4) of the Act 
(e.g., latest updated summary plan description, latest annual report, 
any terminal report, etc.). Language in Sec.  2520.104b-30 could be 
construed as contrary to specific language in section 101(k) of ERISA, 
Sec.  2520.101-6, and other PPA provisions amending title I of ERISA 
that expressly permit plan administrators to impose reasonable charges 
on requesters for the cost of furnishing the requested information, 
including handling and postage charges. Accordingly, minor conforming 
amendments are being proposed to paragraph (a) of Sec.  2520.104b-30 to 
eliminate any ambiguity that may be caused by current Sec.  2520.104b-
30.

C. Regulatory Impact Analysis

Summary

    The proposed rule contains guidance necessary to implement the 
amendments made by new section 101(k) of the Act, as enacted by section 
502(a)(1) of the PPA, which requires multiemployer plan administrators 
to provide, upon written request, copies of certain actuarial and 
financial reports about the plan to participants, beneficiaries, 
employee representatives, or any employer that has an obligation to 
contribute to the plan.
    This disclosure requirement of PPA was enacted because more 
complete disclosures were considered an important element of measures 
enacted in PPA to strengthen the long-term health of the multiemployer 
plan pension system. Providing participants and beneficiaries, employee 
representatives, and contributing employers with greater access to 
actuarial and financial information regarding their plans will increase 
the transparency of the operation of multiemployer pension plans and 
afford all parties interested in the financial viability of such plans 
greater opportunity to monitor their funding and financial status and 
to take appropriate action when necessary.
    By clarifying certain terms used in section 101(k) of the Act, this 
regulation will also permit multiemployer plan administrators to 
fulfill their disclosure responsibilities under this section with 
greater certainty and less cost. The increase in transparency of plan 
operations may also contribute to an atmosphere of greater 
accountability on the part of plan officials. These benefits have not 
been quantified.
    The cost of the multiemployer plan disclosure requirement under 
section 101(k) of the Act and the rule is expected to total 
approximately $2.3 million in the year of implementation, $2.0 million 
in the second year, and $1.4 million in the third year. These costs 
arise from logging in disclosure requests, copying and mailing the 
reports, and contracting for redacting individually identifiable and 
proprietary information from the reports. In addition, multiemployer 
plans will devote in-house staff time to complying with this 
regulation. The total hour burden is estimated to be 56,000 hours in 
2008, 49,000 in 2009 and 37,000 in 2010. Both the dollar burden and the 
hour burden are projected to fall over the three-year period as 
interest in the aging inventory of existing documents subject to this 
regulation wanes. The dollar equivalent of the three-year hour burden 
is estimated to be $4.4 million.
    Because the costs of the proposed regulation arise from notice 
provisions in the PPA, the data and methodology used in developing 
these estimates are more fully described in the Paperwork Reduction Act 
section of this analysis of regulatory impact.

Executive Order 12866 Statement

    Under Executive Order 12866 (58 FR 51735), the Department must 
determine whether a regulatory action is ``significant'' and therefore 
subject to review by the Office of Management and Budget (OMB). Section 
3(f) of the Executive Order defines a ``significant regulatory action'' 
as an action that is likely to result in a rule (1) having an annual 
effect on the economy of $100 million or more, or adversely and 
materially affecting a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local or tribal governments or communities (also referred to as 
``economically significant''); (2) creating a serious inconsistency or 
otherwise interfering with an action taken or planned by another 
agency; (3) materially altering the budgetary impacts of entitlement

[[Page 52530]]

grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or (4) raising novel legal or policy issues arising 
out of legal mandates, the President's priorities, or the principles 
set forth in the Executive Order. Although the Department believes that 
this regulatory action is not economically significant within the 
meaning of section 3(f)(1) of the Executive Order, the action has been 
determined to be significant within the meaning of section 3(f)(4) of 
the Executive Order, and the Department accordingly provides the 
following assessment of its potential costs and benefits. As elaborated 
below, the Department believes that the benefits of the rule justify 
its costs.
    In assessing the costs and benefits of the rule and associated 
provisions of the Act, the Department endeavored to consider all of the 
major activities that will be carried out pursuant to them. For 
example, multiemployer pension plan administrators will have to make 
arrangements for copying and mailing the reports and redacting 
individually identifiable and proprietary information from the reports. 
Because the regulation does not require the creation of any new 
documents, the costs of the rule are limited to those arising from 
logging in requests and from copying, mailing and redacting disclosed 
reports.
    The Department estimates that the total cost \3\ for all 
multiemployer plans to comply with the regulation will average $1,200 
per plan year over the 2008-2010 periods. Given that total 2004 assets 
of multiemployer pension plans averaged about $247 million in defined 
benefit plans and $50 million in defined contribution plans, this 
annual cost is approximately 0.0012% of average plan assets in defined 
benefit plans and 0.0061% of assets in defined contribution plans. The 
Department believes that the transparency contained in the rule and 
associated section 101(k) of the Act will provide participants, 
beneficiaries, employee representatives, and contributing employers 
with important information regarding the funding and financial status 
of multiemployer pension plans. These disclosures will allow 
participants, beneficiaries, employee representatives, and contributing 
employers to learn more about the financial status of their plans and 
take action where appropriate. Although the benefits of this increased 
transparency have not been quantified, the Department has concluded 
that these benefits of the rule outweigh its modest costs. The 
Department invites comments on this assessment and its conclusions.
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    \3\ Total cost is the sum of the dollar burden and the dollar 
equivalent of the hour burden.
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Paperwork Reduction Act

    As part of its continuing effort to reduce paperwork and respondent 
burden, the Department of Labor conducts a preclearance consultation 
program to provide the general public and federal agencies with an 
opportunity to comment on proposed and continuing collections of 
information in accordance with the Paperwork Reduction Act of 1995 (PRA 
95) (44 U.S.C. 3506(c)(2)(A)). This helps to ensure that requested data 
can be provided in the desired format, reporting burden (time and 
financial resources) is minimized, collection instruments are clearly 
understood, and the impact of collection requirements on respondents 
can be properly assessed.
    Currently, EBSA is soliciting comments concerning the proposed 
information collection request (ICR) included in the Proposed 
Regulation on Multiemployer Pension Plan Information Made Available on 
Request. A copy of the ICR may be obtained by contacting the PRA 
addressee shown below.
    The Department has submitted a copy of the proposed rule to OMB in 
accordance with 44 U.S.C. 3507(d) for review of its information 
collections. The Department and OMB are particularly interested in 
comments that:
     Evaluate whether the collection of information is 
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 
burden of the collection 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., permitting 
electronic submission of responses.
    Comments should be sent to the Office of Information and Regulatory 
Affairs, Office of Management and Budget, Room 10235, New Executive 
Office Building, Washington, DC 20503; Attention: Desk Officer for the 
Employee Benefits Security Administration. OMB requests that comments 
be received within 30 days of publication of the proposed regulation to 
ensure their consideration.
    PRA Addressee: Address requests for copies of the ICR to Joseph S. 
Piacentini, Office of Policy and Research, U.S. Department of Labor, 
Employee Benefits Security Administration, 200 Constitution Avenue, 
NW., Room N-5647, Washington, DC 20210. Telephone (202) 693-8410; Fax: 
(202) 219-5333. These are not toll-free numbers.
    The proposed regulation would, upon adoption, implement the 
disclosure requirements of new section 101(k) of the Act, as added by 
section 502(a)(1) of the PPA. As described earlier in the preamble, 
section 101(k)(1) of the Act requires multiemployer plan 
administrators, upon written request, to furnish certain documents to 
any plan participant, beneficiary, employee representative, or any 
employer that has an obligation to contribute to the plan. The 
documents that may be requested are (1) a copy of any periodic 
actuarial report (including sensitivity testing) received by the plan 
for any plan year which has been in the plan's possession for at least 
30 days; (2) a copy of any quarterly, semi-annual, or annual financial 
report prepared for the plan by any plan investment manager or advisor 
or other fiduciary that has been in the plan's possession for at least 
30 days; and (3) a copy of any application filed with the Secretary of 
the Treasury requesting an extension under section 304 of the Act (or 
section 431(d) of the Internal Revenue Code of 1986) and the 
determination of such Secretary pursuant to such application.
    The information collection provisions of this proposed rule are 
found in section 2520.101-6(a) of the proposed rule, which requires 
multiemployer defined benefit and defined contribution pension plan 
administrators to furnish copies of actuarial, financial, and funding 
related documents to plan participants, beneficiaries, employee 
representatives, and contributing employers upon request. This 
information constitutes a third-party disclosure from the administrator 
to participants, beneficiaries, employee representatives, and 
contributing employers. Pursuant to section 2520.101-6(c)(2) the 
documents required to be disclosed shall not contain any information 
that the plan administrator reasonably determines to be either: (i) 
Individually identifiable information regarding any plan participant, 
beneficiary, employee, fiduciary, or contributing employer, or (ii) 
proprietary information regarding the plan, any contributing employer, 
or entity providing services to the plan.

[[Page 52531]]

The plan administrator must inform the requester if any such 
information is withheld.

Annual Hour Burden

    In order to estimate the potential costs of the disclosure 
provisions of section 101(k) of the Act and this proposed rule, the 
Department estimated the number of multiemployer defined benefit and 
defined contribution pension plans. Based on data derived exclusively 
from the Form 5500 for the 2004 plan year, which is the most recent 
year for which complete data are available, the Department estimates 
that there are 1,533 multiemployer defined benefit plans \4\ and 1,372 
multiemployer defined contribution plans that would be subject to this 
disclosure requirement. Because section 101(k) of the Act and the 
regulation generally do not limit the class of documents that can be 
requested in any way by date of creation or receipt, the Department has 
assumed for purposes of this estimate that each multiemployer defined 
benefit and defined contribution pension plan will disclose both an 
existing inventory and newly created periodic actuarial reports 
(``actuarial reports''), quarterly, semiannual, or annual financial 
reports (``financial reports''), and amortization extension requests 
filed with the IRS (hereafter ``extension requests'').\5\
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    \4\ All dollar or hour numbers in this burden analysis have been 
rounded to either the nearest thousand or the nearest hundred, as 
appropriate.
    \5\ For purposes of this estimate, the Department assumes that 
plans will receive no requests for documents in existing inventory 
for years prior to 2002.
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    In developing burden estimates, the Department has taken into 
account the total estimated hours required to copy, mail, and contract 
with a service professional to redact individually identifiable and 
proprietary information from the reports.
    With respect to an existing inventory of reports, the Department 
estimates that multiemployer defined benefit plans will receive 169,000 
requests to disclose existing financial reports (an average of 110 per 
plan), 76,000 requests for existing actuarial reports (an average of 50 
per plan), and 340 requests for existing amortization requests (an 
average of .22 per plan), and defined contribution plans will receive 
96,000 requests for existing financial reports (an average of 70 per 
plan). Therefore, the Department estimates that multiemployer pension 
plans would receive a total of 341,000 requests for disclosures of 
existing inventory of reports.
    The Department estimates that the total hour burden associated with 
disclosing existing documents upon request over the 2008-2010 period 
will be 66,000 hours. This would include 61,000 clerical hours to log 
requests and to locate, copy, and mail paper disclosures \6\ and 5,000 
of legal hours (1.8 hours per plan for financial reports, .7 hours for 
actuarial reports, and 0 hours for extension requests) \7\ to redact 
individually identifiable and proprietary information.\8\ The 
equivalent costs of these hours are $2.1 million.\9\
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    \6\ This is the product of the total documents disclosed times 
the percentage of documents disclosed on paper times 15 minutes (to 
locate, copy, and mail paper documents).
    \7\ The Department estimates that 70% of the requested documents 
will be redacted by outside legal counsel, and that 30% of financial 
reports and 25% of actuarial reports will require redaction.
    \8\ The Department estimates that 20% of existing financial 
reports and actuarial reports for defined benefit plans will be 
available electronically, 50% of existing extension requests for 
such plans will be available electronically, and 20% of existing 
defined contribution plan financial reports will be available 
electronically. The Department invites comments on this estimate. 
Documents are assumed to be disclosed on paper unless the requester 
has access to e-mail and requests a document that already exists in 
paper form.
    \9\ Hourly wage estimates were based on data from the Bureau of 
Labor Statistics Occupational Employment Survey (November 30, 2004) 
and the 2005 Employment Cost Trends. Total labor costs (wages plus 
benefits plus overhead) for clerical staff were estimated to average 
$25 per hour over the period based on metropolitan wage rates for 
Executive Secretaries and Administrative Assistants. Total labor 
cost for legal staff was estimated to average $109 per hour based on 
metropolitan wage estimates for attorneys.
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    For purposes of this analysis, the Department assumes that 40% of 
the existing documents would be requested in the year of 
implementation, 30% in the second year, and 15% in the third year, with 
the remaining 15% of disclosures of existing documents occurring after 
2010.\10\ Based on this allocation, the first year hour burden is 
estimated to be 56,000 hours ($1.7 million equivalent cost), the second 
year hour burden would be 49,000 hours ($1.5 million equivalent cost), 
and the third year burden would be 37,000 hours ($1.1 million 
equivalent cost).
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    \10\ This assumption is based on the expectation that interest 
in receiving existing documents will be high in the initial year of 
implementation and gradually decrease in subsequent years.
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    With respect to newly created reports, the Department estimates 
that multiemployer defined benefit plans will receive 107,000 requests 
to disclose newly created financial reports (an average of 70 per 
plan), 32,000 requests for newly created actuarial reports (an average 
of 21 per plan), and 1,600 requests for newly created amortization 
requests (an average of one per plan), and defined contribution plans 
will receive 82,000 requests for newly created financial reports (an 
average of 60 per plan). Therefore, the Department estimates that 
multiemployer pension plans would receive a total of 223,000 requests 
for disclosures of newly created reports.
    The Department estimates that the total hour burden associated with 
disclosing newly created documents upon request is 25,000 hours. This 
includes 24,000 clerical hours to copy and mail paper disclosures and 
1,200 legal hours to redact individually identifiable and proprietary 
information. The equivalent costs of these hours are $744,000.

Annual Cost Burden

    The costs arising from this information collection derive from the 
direct costs of distributing the reports. As discussed above, the 
Department believes that a substantial number of the existing documents 
will be available only in paper form; therefore, costs will be incurred 
to copy and to distribute the reports by mail.\11\ Some plans also will 
incur costs to hire a service provider to review the reports and redact 
individually identifiable and proprietary information from them.
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    \11\ See footnote 9 above.
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    The proposed rule allows plans to charge requesters for the 
reasonable costs of furnishing documents in an amount that does not 
exceed the lesser of the actual cost to the plan to furnish the 
document, or 25 cents per page plus the cost of mailing or otherwise 
delivering the requested document. The proposed rule does not allow 
plans to charge for redaction costs. The extent to which plans will 
impose such charges has not been estimated, but the Department has 
estimated the amount these charges would reimburse plans for their 
direct dollar cost if plans were to consistently charge requesters for 
all allowable charges. Because copy costs will generally not exceed 25 
cents per page, the proceeds from these charges, if imposed, would 
reimburse plans for all mailing costs, for nearly all copy costs, and 
for an estimated 60 percent of the total dollar burden expected over 
the 2008-2010 period.
    With respect to the existing inventory of documents for 
multiemployer defined benefit plans, the Department estimates copying 
costs of $791,000 for the existing inventory of financial reports,\12\

[[Page 52532]]

$171,000 for the existing inventory of actuarial reports, $41 for the 
existing inventory of extension requests. For multiemployer defined 
contribution plans, estimated copying costs for existing financial 
reports is $455,000. Therefore, the total copying costs for the 
existing inventory of all reports would be $1.4 million.
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    \12\ The copying cost estimate is based on a $5.84 average per 
document cost of disclosure of financial reports (estimated 40 pages 
per document times $0.15 average copying cost per page), $2.80 for 
actuarial reports (estimated 50 pages per document times $0.06 
average copying cost per page), $0.24 for extension requests 
(estimated 12 pages per document times $0.02 average copying cost 
per page), and $5.84 for defined contribution plan financial reports 
(estimated 50 pages per document times $0.15 average copying cost 
per page). The average copying costs per page takes into account the 
estimated percentage of documents that are in color, and will, 
therefore, require more expensive color copying. The Department 
assumes that 70% of financial reports and 20% of actuarial reports 
are in color, and that 0% of extension requests are in color.
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    The Department estimates mailing costs of $271,000 to deliver the 
existing inventory of financial reports, $152,000 to deliver the 
existing actuarial reports, and $129 to deliver existing extension 
requests.\13\ Multiemployer defined contribution plans will incur an 
estimated $157,000 of mailing costs to deliver existing financial 
reports. Therefore, the total mailing costs for the existing inventory 
of all reports is estimated to be $581,000.
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    \13\ The negligible cost for all plans to mail extension 
requests results from the interaction of various assumptions 
regarding these documents--a low request rate, a high rate of 
electronic disclosure, and a relatively low mailing cost arising 
from the modest length of these documents.
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    The costs to redact individually identifiable and proprietary 
information from the existing inventory of financial reports are 
$702,000 and from the existing inventory of actuarial reports are 
$263,000. The Department estimates that no costs will be incurred for 
redacting information from the existing inventory of amortization 
extensions. For multiemployer defined contribution plans, the redaction 
costs for existing financial reports are $628,000. Therefore, the total 
redaction costs for the existing inventory of all reports are $1.6 
million.
    With respect to newly created reports for multiemployer defined 
benefit plans, the Department estimates that the annual cost for all 
plans to copy the newly created financial reports would be $212,000, 
the newly created actuarial reports would be $30,000, and the newly 
created amortization extension requests would be $21.\14\ For 
multiemployer defined contribution plans, the copy cost for newly 
created financial reports would be $176,000. Therefore, the total 
copying costs for all newly created reports would be $416,000.
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    \14\ The negligible cost for all plans to copy amortization 
requests results from a combination of assumptions about these 
documents--a low request rate, a high rate of electronic disclosure, 
and a low cost of copying a modest number of black and white pages.
---------------------------------------------------------------------------

    The costs to mail the newly created financial reports would be 
$73,000, newly created actuarial reports would be $27,000, and newly 
created amortization extension requests would be $66. For multiemployer 
defined contribution plans, the mailing costs for newly created 
financial reports would be $55,000. Therefore, the total mailing costs 
for newly created reports would be $155,000.
    The estimated costs of contract work \15\ to redact individually 
identifiable and proprietary information for newly created financial 
reports would be $140,000 and $44,000 for newly created actuarial 
reports. The Department estimates that no costs will be incurred for 
redacting information from newly created amortization extension 
requests. For multiemployer defined contribution plans, the redaction 
cost for newly created financial reports is estimated to be $126,000. 
Therefore, the total annual redaction costs for all newly created 
reports are estimated to be $310,000.
---------------------------------------------------------------------------

    \15\ The Department has assumed that 70% of redaction work will 
be contracted.
---------------------------------------------------------------------------

    Type of Review: New collection.
    Agency: Department of Labor, Employee Benefits Security 
Administration.
    Title: Multiemployer Pension Plan Information Made Available on 
Request.
    OMB Number: 1210-NEW.
    Affected Public: Individuals or households; business or other for-
profit; not-for-profit institutions.
    Respondents: 2,905.
    Frequency of Response: Occasionally.
    Responses: 960,000.
    Estimated Total Annual Hour Burden: 56,000 (first year); 49,000 
(second year); 37,000 (third year).
    Estimated Total Annual Cost Burden: $2.3 million (first year); $2.0 
million (second year); $1.4 million (third year).
    OMB will consider comments submitted in response to this request in 
its review of the request for approval of the ICR; these comments will 
also become a matter of public record.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA) 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 (5 U.S.C. 551 et seq.) and which are 
likely to have a significant economic impact on a substantial number of 
small entities. Unless an agency certifies that a proposed rule is not 
likely to have a significant economic impact on a substantial number of 
small entities, section 603 of RFA requires that the agency present an 
initial regulatory flexibility analysis at the time of the publication 
of the notice of proposed rulemaking describing the impact of the rule 
on small entities and seeking public comment on such impact. Small 
entities include small businesses, organizations and governmental 
jurisdictions.
    The Department has deemed that an employee benefit plan shall be 
considered a small entity if it has fewer than 100 participants.\16\ By 
this standard, forthcoming data from the EBSA Private Pension Bulletin 
2004 show that only 291 multiemployer pension plans or 10% of all 
multiemployer pension plans are small entities. The Department does not 
consider this to be a substantial number of small entities. Therefore, 
pursuant to section 605(b) of RFA, the Department hereby certifies that 
the proposed rule is not likely to have a significant economic impact 
on a substantial number of small entities.
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    \16\ The basis for this definition is found in section 104(a)(2) 
of the Act, which permits the Secretary of Labor to prescribe 
simplified annual reports for pension plans that cover fewer than 
100 participants.
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    To the Department's knowledge, there are no federal regulations 
that might duplicate, overlap, or conflict with the proposed regulation 
under section 101(k) of ERISA.

Congressional Review Act

    The rule being issued here is subject to the Congressional Review 
Act provisions of the Small Business Regulatory Enforcement Fairness 
Act of 1996 (5 U.S.C. 801 et seq.) and, if finalized, will be 
transmitted to Congress and the Comptroller General for review. The 
rule is not a ``major rule'' as that term is defined in 5 U.S.C. 804, 
because it is not likely to result in (1) an annual effect on the 
economy of $100 million or more; (2) a major increase in costs or 
prices for consumers, individual industries, or Federal, State, or 
local government agencies, or geographic regions; or (3) significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and export markets.

Unfunded Mandates Reform Act

    For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L. 
104-4), as well as Executive Order

[[Page 52533]]

12875, the rule does not include any Federal mandate that may result in 
expenditures by State, local, or tribal governments, and does not 
impose an annual burden exceeding $100 million on the private sector.

Federalism Statement

    Executive Order 13132 (August 4, 1999) outlines fundamental 
principles of federalism and requires the adherence to specific 
criteria by Federal agencies in the process of their formulation and 
implementation of policies that have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. The proposal does not have federalism 
implications because it has no substantial direct effect on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Section 514 of the Act provides, with certain 
exceptions specifically enumerated that are not pertinent here, that 
the provisions of Titles I and IV of the Act supersede any and all laws 
of the States as they relate to any employee benefit plan covered under 
Act. The requirements of the proposal would not alter the fundamental 
reporting and disclosure requirements of the statute with respect to 
employee benefit plans, and as such have no implications for the States 
or the relationship or distribution of power between the national 
government and the States.

List of Subjects in 29 CFR Part 2520

    Accounting, Employee benefit plans, Employee Retirement Income 
Security Act, Pensions, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, the Department of Labor 
proposes to amend 29 CFR part 2520 as follows:

PART 2520--RULES AND REGULATIONS FOR REPORTING AND DISCLOSURE

    1. The authority citation for part 2520 is revised to read as 
follows:

    Authority: 29 U.S.C. 1021-1025, 1027, 1029-31, 1059, 1134 and 
1135; and Secretary of Labor's Order 1-2003, 68 FR 5374 (Feb. 3, 
2003). Sec. 2520.101-2 also issued under 29 U.S.C. 1132, 1181-1183, 
1181 note, 1185, 1185a-b, 1191, and 1191a-c. Secs. 2520.102-3, 
2520.104b-1 and 2520.104b-3 also issued under 29 U.S.C. 1003, 1181-
1183, 1181 note, 1185, 1185a-b, 1191, and 1191a-c. Secs. 2520.104b-1 
and 2520.107 also issued under 26 U.S.C. 401 note, 111 Stat. 788. 
Sec. 2520.101-4 also issued under sec. 103 of Pub. L. 108-218. Sec. 
2520.101-6 also issued under sec. 502, Pub. L. 109-280, 120 Stat. 
780.


Sec.  2520.101-5  [Reserved]

    2. Add and reserve Sec.  2520.101-5 of subpart A.
    3. Add Sec.  2520.101-6 to subpart A to read as follows:


Sec.  2520.101-6  Multiemployer Pension Plan Information Made Available 
on Request.

    (a) In general. For purposes of compliance with the requirements of 
section 101(k) of the Employee Retirement Income Security Act of 1974, 
as amended (the Act), 29 U.S.C. 1001, et seq., the administrator of a 
multiemployer pension plan shall, in accordance with the requirements 
of this section, furnish copies of actuarial, financial and funding-
related documents described in paragraph (c) of this section to plan 
participants, beneficiaries, employee representatives and contributing 
employers, described in paragraph (d) of this section.
    (b) Obligation to furnish. (1) Subject to paragraphs (b)(3) and 
(b)(4) of this section, the administrator of a multiemployer pension 
plan shall, not later than 30 days after receipt of a written request 
for a document or documents described in paragraph (c) of this section 
from a plan participant, beneficiary, employee representative or 
contributing employer described in paragraph (d) of this section, 
furnish the requested document or documents to the requester.
    (2) The plan administrator shall furnish documents pursuant to 
paragraph (b)(1) of this section in a manner consistent with the 
requirements of 29 CFR 2520.104b-1, including paragraph (c) of that 
section relating to the use of electronic media.
    (3) Nothing in this section shall require a plan administrator to 
furnish to any requester a document described in paragraph (c) of this 
section more than once during any 12-month period.
    (4) The plan administrator may impose a reasonable charge to cover 
the costs of furnishing documents pursuant to this section, but in no 
event may such charge exceed--
    (i) The lesser of: (A) the actual cost to the plan for the least 
expensive means of acceptable reproduction of the document(s) or (B) 25 
cents per page; plus
    (ii) The cost of mailing or delivery of the document.
    (c) Documents to be furnished. (1) For purposes of paragraph (a) of 
this section, and subject to paragraph (b) of this section, a plan 
participant, beneficiary, employee representative or contributing 
employer described in paragraph (d) of this section, shall be entitled 
to request and receive a copy of any:
    (i) Periodic actuarial report (including any sensitivity testing) 
received by the plan for any plan year which has been in the plan's 
possession for at least 30 days prior to the date of the written 
request;
    (ii) Quarterly, semi-annual, or annual financial report prepared 
for the plan by any plan investment manager or advisor (without regard 
to whether such advisor is a fiduciary within the meaning of section 
3(21) of the Act) or other fiduciary which has been in the plan's 
possession for at least 30 days prior to the date of the written 
request; and
    (iii) Application filed with the Secretary of the Treasury 
requesting an extension under section 304 of this Act or section 431(d) 
of the Internal Revenue Code of 1986 and the determination of such 
Secretary pursuant to such application.
    (2) For purposes of this section, the document(s) required to be 
disclosed shall not include:
    (i) Any information or data which served as the basis for any 
report or application described in paragraph (c)(1) of this section, 
although nothing herein shall limit any other right that a person may 
have to review or obtain such information under the Act; or
    (ii) Any information that the plan administrator reasonably 
determines to be either: (A) individually identifiable information 
regarding any plan participant, beneficiary, employee, fiduciary, or 
contributing employer, or (B) proprietary information regarding the 
plan, any contributing employer, or entity providing services to the 
plan. A plan administrator shall inform the requester if the plan 
administrator withholds any such information included within a request 
under paragraph (b) of this section.
    (d) Persons entitled to request documents. For purposes of this 
section, a plan participant, beneficiary, employee representative or 
contributing employer entitled to request and receive documents 
includes:
    (1) Any participant within the meaning of section 3(7) of the Act;
    (2) Any beneficiary receiving benefits under the plan;
    (3) Any labor organization representing participants under the 
plan;
    (4) Any employer that is a party to the collective bargaining 
agreement(s) pursuant to which the plan is maintained or who otherwise 
may be subject to withdrawal liability pursuant to section 4203 of the 
Act.

[[Page 52534]]

    4. Amend Sec.  2520.104b-30 to revise paragraph (a) to read as 
follows:


Sec.  2520.104b-30  Charges for documents.

    (a) Application. The plan administrator of an employee benefit plan 
may impose a reasonable charge to cover the cost of furnishing to 
participants and beneficiaries upon their written request as required 
under section 104(b)(4) of the Act, copies of the following 
information, statements or documents: The latest updated summary plan 
description, and the latest annual report, any terminal report, the 
bargaining agreement, trust agreement, contract, or other instruments 
under which the plan is established or operated. Except where 
explicitly permitted under the Act, no charge may be assessed for 
furnishing information, statements or documents as required by other 
provisions of the Act, which include, in part 1 of title I, sections 
104(b)(1), (2), (3) and (c) and 105(a) and (c).
* * * * *

    Signed at Washington, DC, this 7th day of September, 2007.
Bradford P. Campbell,
Assistant Secretary, Employee Benefits Security Administration, 
Department of Labor.
 [FR Doc. E7-18073 Filed 9-13-07; 8:45 am]
BILLING CODE 4510-29-P