[Federal Register Volume 76, Number 189 (Thursday, September 29, 2011)]
[Notices]
[Pages 60531-60532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25044]


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

DEPARTMENT OF LABOR

Office of the Secretary


Agency Information Collection Activities; Submission for OMB 
Review; Comment Request; Employee Retirement Income Security Act 
Prohibited Transaction Exemption 86-128

ACTION: Notice.

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

SUMMARY: The Department of Labor (DOL) is submitting the Employee 
Benefits Security Administration sponsored information collection 
request (ICR) titled, ``Employee Retirement Income Security Act 
Prohibited Transaction Exemption 86-128,'' to the Office of Management 
and Budget (OMB) for review and approval for continued use in 
accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 
3501 et seq.).

DATES: Submit comments on or before October 31, 2011.

ADDRESSES: A copy of this ICR with applicable supporting documentation; 
including a description of the likely respondents, proposed frequency 
of response, and estimated total burden may be obtained from the 
RegInfo.gov Web site, http://www.reginfo.gov/public/do/PRAMain, on the 
day following publication of this notice or by contacting Michel Smyth 
by telephone at 202-693-4129 (this is not a toll-free number) or 
sending an e-mail to [email protected].
    Submit comments about this request to the Office of Information and 
Regulatory Affairs, Attn: OMB Desk Officer for the Department of Labor, 
Employee Benefits Security Administration, Office of Management and 
Budget, Room 10235, Washington, DC 20503, Telephone: 202-395-6929/Fax: 
202-395-6881 (these are not toll-free numbers), e-mail: [email protected].

FOR FURTHER INFORMATION: Contact Michel Smyth by telephone at 202-693-
4129 (this is not a toll-free number) or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: Prohibited Transaction Class Exemption 86-
128 permits persons who serve as fiduciaries for employee benefit plans 
to effect or execute securities transactions on behalf of employee 
benefit plans. The exemption also allows sponsors of pooled separate 
accounts and other pooled investment funds to use their affiliates to 
effect or execute securities transactions for such accounts in order to 
recapture brokerage commissions for the benefit of employee benefit 
plans whose assets are maintained in pooled separate accounts managed 
by insurance companies. This exemption provides relief from certain 
prohibitions in Employee Retirement Income Security Act of 1974 (ERISA) 
section 406(b) and from the taxes imposed by Internal Revenue Code of 
1986 (the Code) section 4975(a) and (b) by reason of Code section 
4975(c)(1)(E) or (F).
    In order to insure that the exemption is not abused, that the 
rights of participants and beneficiaries are protected, and that the 
exemption's conditions are being complied with, the class exemption 
imposes the following information collection requirements on 
fiduciaries of employee benefit plans that effect or execute securities 
transactions (broker-dealers) and the independent plan fiduciary 
authorizing the plan to engage in the transactions with the broker-
dealer (authorizing fiduciary) under the conditions contained in the 
exemption: (1) The authorizing plan fiduciary must provide the broker-
dealer with an advance written authorization for the transactions; (2) 
the broker-dealer must provide the authorizing fiduciary with 
information necessary to determine whether an authorization should be 
made, including a copy of the exemption, a form for termination, a 
description of the broker-dealer's brokerage placement practices, and 
any other reasonably available information regarding the matter that 
the authorizing fiduciary requests; (3) the broker-dealer must provide 
the authorizing fiduciary with an annual termination form, at least 
annually, explaining that the authorization is terminable at will, 
without penalty to the plan, and that failure to return the form will 
result in continued authorization for the broker-dealer to engage in 
securities transactions on behalf of the plan; (4) the broker-dealer 
must provide the authorizing fiduciary with either (a) a conformation 
slip for each individual securities transaction within 10 days of the 
transaction containing the information described in Rule 10b-10(a)(1-7) 
under the Securities Exchange Act of 1934, 17 CFR 240.10b-10 or (b) a 
quarterly report containing certain financial information including the 
total of all transaction-related charges incurred by the plan; (5) the 
broker-dealer must provide the authorizing fiduciary with an annual 
summary of the confirmation slips or quarterly reports, containing all 
security transaction-related charges, the brokerage placement 
practices, and a portfolio turnover ratio; and (6) a

[[Page 60532]]

broker-dealer who is a discretionary plan trustee must provide the 
authorizing fiduciary with an annual report showing separately the 
commissions paid to affiliated brokers and non-affiliated brokers, on 
both a total dollar basis and a cents-per-share basis. These 
requirements are designed as appropriate safeguards to ensure the 
protection of the plan assets involved in the transactions, which, in 
the absence of the class exemption, would not be permitted. These 
safeguards rely on the prior authorization and monitoring of the 
broker-fiduciary's activities by a second plan fiduciary that is 
independent of the first.
    This information collection is subject to the PRA. A Federal agency 
generally cannot conduct or sponsor a collection of information, and 
the public is generally not required to respond to an information 
collection, unless it is approved by the OMB under the PRA and displays 
a currently valid OMB Control Number. In addition, notwithstanding any 
other provisions of law, no person shall generally be subject to 
penalty for failing to comply with a collection of information if the 
collection of information does not display a valid OMB Control Number. 
See 5 CFR 1320.5(a) and 1320.6. The DOL obtains OMB approval for this 
information collection under OMB Control Number 1210-0059. The current 
OMB approval is scheduled to expire on September 30, 2011; however, it 
should be noted that existing information collection requirements 
submitted to the OMB receive a month-to-month extension while they 
undergo review. For additional information, see the related notice 
published in the Federal Register on May 24, 2011 (76 FR 30199).
    Interested parties are encouraged to send comments to the OMB, 
Office of Information and Regulatory Affairs at the address shown in 
the ADDRESSES section within 30 days of publication of this notice in 
the Federal Register. In order to help ensure appropriate 
consideration, comments should reference OMB Control Number 1210-0059. 
The OMB is particularly interested in comments that:
     Evaluate whether the proposed 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 proposed 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.
    Agency: Employee Benefits Security Administration.
    Title of Collection: Employee Retirement Income Security Act 
Prohibited Transaction Exemption 86-128.
    OMB Control Number: 1210-0059.
    Affected Public: Private Sector--Businesses or other for-profits 
and not-for-profit institutions.
    Total Estimated Number of Respondents: 27,900.
    Total Estimated Number of Responses: 1,199,880.
    Total Estimated Annual Burden Hours: 63,800.
    Total Estimated Annual Other Costs Burden: $736,800.

    Dated: September 22, 2011.
Michel Smyth,
Departmental Clearance Officer.
[FR Doc. 2011-25044 Filed 9-28-11; 8:45 am]
BILLING CODE 4510-29-P