[Federal Register Volume 78, Number 19 (Tuesday, January 29, 2013)]
[Notices]
[Pages 6135-6140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-01616]


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DEPARTMENT OF LABOR

Employee Benefits Security Administration

RIN 1210-ZA15


Delinquent Filer Voluntary Compliance Program

AGENCY: Employee Benefits Security Administration, Labor.

ACTION: Notice, Changes to the Delinquent Filer Voluntary Compliance 
Program.

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SUMMARY: This Notice describes changes to the Department of Labor's 
(Department) Delinquent Filer Voluntary Compliance Program (DFVC 
Program or Program). Administrators of employee benefit plans subject 
to Title I of the Employee Retirement Income Security Act of 1974 
(ERISA) who fail to file annual reports on a timely basis can be 
subject to civil penalties under section 502(c)(2) of ERISA. The DFVC 
Program is intended to encourage delinquent plan administrators to 
comply with their annual reporting obligations under ERISA through the 
assessment of reduced civil penalties. The DFVC Program was initially 
adopted in 1995 and was last updated in a published Federal Register 
Notice on March 28, 2002 (2002 Notice). The Department's DFVC Program 
Web site has been updated periodically since 2002 to reflect the 
adoption of technical changes to the Program. Most recently, the DFVC 
Program Web site was updated to reflect the Department's final 
regulation mandating electronic filing of annual reports as part of the 
implementation of a wholly electronic ERISA Filing Acceptance System 
(EFAST2) for those reports. (See www.dol.gov/ebsa.) This Notice also 
describes an existing online penalty calculator and Internet-based 
payment system for the DFVC Program. (See http://www.dol.gov/ebsa/calculator/dfvcpmain.html). This Notice is intended to be a 
comprehensive update and restatement of the DFVC Program that 
incorporates the changes that have been made in the DFVC Program since 
the 2002 Notice.

DATES: The DFVC Program described herein is effective immediately on 
publication, and it supersedes and replaces the DFVC Program Notice 
published in the Federal Register on March 28, 2002 (67 FR 15062).

FOR FURTHER INFORMATION CONTACT: For questions regarding the DFVC 
Program, including making an application, contact Jennifer C. Warner or 
Scott C. Albert, Office of the Chief Accountant, EBSA, (202) 693-8360. 
(This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: 

A. Background

    The Secretary of Labor has the authority under section 502(c)(2) of 
ERISA to assess civil penalties of up to $1,100 \1\ a day against plan 
administrators who fail or refuse to file complete and timely annual 
reports as required under section 101(b) of ERISA and the Secretary's 
regulations. Pursuant to 29 CFR 2560.502c-2 and 29 CFR 2570.60 et seq., 
EBSA maintains an enforcement program for the assessment of civil 
penalties under section 502(c)(2) of ERISA for noncompliance with 
ERISA's annual reporting requirements. Under this enforcement program, 
plan administrators who fail to file an annual report may be assessed a 
penalty of $300 per day, up to $30,000 per year, until a complete 
annual report is filed. Plan administrators who file but file late 
annual reports may be assessed $50 per day for each day an annual 
report is filed after the date on which the annual report was required 
to be filed, without regard to any extensions of time for filing. The 
Department may, in its discretion, waive all or part of a civil penalty 
assessed under section 502(c)(2) of ERISA upon a showing by the 
administrator that there was reasonable cause for the failure to file a 
complete and timely annual report or that there was reasonable cause 
why the penalty, as calculated, should not be assessed.
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    \1\ In accordance with the requirements of the Federal Civil 
Penalties Inflation Adjustment Act of 1990, as amended, the 
Department's regulation at 29 CFR 2575.502c-2 increased the maximum 
civil penalty from $1,000 a day as stated in section 502(c)(2) of 
ERISA to $1,100 a day for violations occurring after July 29, 1997.
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    In an effort to encourage plan administrators to voluntarily comply 
with the annual reporting requirements under Title I of ERISA, the 
Department adopted the DFVC Program. The DFVC Program was initially 
adopted on April 27, 1995 (60 FR 20874), and amended by Notice 
published on March 28, 2002 (67 FR 15052). The Program permits 
administrators otherwise subject to the assessment of higher civil 
penalties for failing to file a timely annual report to pay reduced 
civil penalties for voluntarily complying with the requirement to file 
an annual report under Title I of ERISA. Eligible plan administrators 
have been able to avail themselves of the DFVC Program by filing their 
delinquent Form 5500, ``Annual Return/Report of Employee Benefit 
Plan,'' together with all required schedules and attachments (Form 
5500) in accordance with applicable filing

[[Page 6136]]

requirements, complying with the other procedures outlined in the DFVC 
Program, and paying a reduced penalty.

B. Overview of Changes to the DFVC Program

    This Notice is intended to be a comprehensive update of the 2002 
Notice that incorporates intervening changes that have been made in the 
DFVC Program. A discussion of the changes follows.
    The DFVC Program was initially adopted in 1995, and was last 
updated and restated in a published Federal Register Notice on March 
28, 2002 (2002 Notice). The Department's DFVC Program Web site has been 
updated periodically since then to reflect the adoption of certain 
technical changes to the Program. For example, most recently, the DFVC 
Program Web site was updated to reflect the Department's final 
regulation mandating electronic filing of annual reports as part of the 
move to a wholly electronic ERISA Filing Acceptance System (EFAST2) for 
such reports. (See www.dol.gov/ebsa.) Also, an electronic online 
payment option was added to the DFVC Program Web site that uses an 
online calculator to help filers accurately calculate the applicable 
penalty payment. (See www.dol.gov/ebsa/calculator/dfvcpmain.html). The 
electronic payment process is a more efficient process that minimizes 
the possibility of filer error, but a paper-based penalty payment 
system is also available under the DFVC Program. Under the paper-based 
payment system, when filers make a payment by check, they mail the 
check to a separate DFVC Program address that is provided on the 
Department's Web site and must include a paper copy of the Form 5500 
that had been electronically filed with EFAST2. Although a complete 
Form 5500 with schedules and attachments must be electronically filed 
with EFAST2, only the Form 5500 without the schedules and attachments 
must be sent to the DFVC Program address with the penalty payment. This 
additional step of mailing a paper copy of the Form 5500 to a DFVC 
Program address is eliminated for filers who use the online payment 
system, thus reducing the burden for those who choose the online 
payment system.

1. Filing Requirements Under EFAST2 for the DFVC Program

    Prior to the Department's migration to the wholly electronic EFAST2 
system for filing and processing Form 5500 annual reports, the DFVC 
Program permitted delinquent filers to choose to complete and file 
either the current year version of the Form 5500 or the correct prior 
year forms for the plan year for which the delinquent annual return/
report was being filed. Thus, for example, if making a late filing in 
2008 for a 2006 plan year, a filer could have used either the 2008 plan 
year forms that were being processed under the original EFAST system 
(EFAST) (but entering the correct 2006 plan year dates on the space 
provided at the beginning of the Form 5500) or the 2006 plan year 
forms. An electronic filing requirement was adopted as part of the 
Department's migration from the EFAST paper-based filing and processing 
system to the EFAST2 wholly electronic filing and processing system 
(EFAST2).\2\ The migration to EFAST2 is now completely implemented for 
all filing years, and paper filings of any kind (e.g., mail, fax) are 
no longer accepted for either timely or delinquent filings.
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    \2\ The Department published in the Federal Register on July 21, 
2006 (71 FR 41359), a final rule that established an electronic 
filing requirement for the Form 5500 and the new Form 5500-SF, 
``Short Form Annual Return/Report of Small Employee Benefit Plan'' 
filed under part 1 of Title I of ERISA for any plan year beginning 
on or after January 1, 2008. The electronic filing requirement was 
delayed for filings for plan years beginning on or after January 1, 
2009. 72 FR 64710 (Nov. 16, 2007).
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    As a complement to the establishment of the new EFAST2 wholly 
electronic filing and processing system, the Department, along with the 
Internal Revenue Service (IRS) and the Pension Benefit Guaranty 
Corporation (PBGC), published a final notice of adoption of revisions 
to annual return/report forms (Forms Revisions) at 72 FR 64731 (Nov. 
16, 2007). The Forms Revisions was intended to facilitate the move to 
the wholly electronic filing system under EFAST2, streamline the annual 
reporting process, update the annual reporting forms to reflect current 
issues and priorities, and incorporate new reporting requirements under 
the Pension Protection Act of 2006 (PPA). Among other changes, the 
Forms Revisions provided that certain schedules (Schedule SSA (Form 
5500) ``Annual Registration Statement Identifying Separated 
Participants With Deferred Vested Benefits'' and Schedule E (Form 5500) 
``ESOP Annual Information'') were being removed from the Form 5500 
series beginning with filings for the 2009 plan year.\3\ The Forms 
Revisions also expanded information collection on service provider fees 
for large plans on the Schedule C (Form 5500) ``Service Provider 
Information,'' particularly with respect to indirect compensation. 
Further, for 2008 and later plan years, to comply with new reporting 
requirements under the PPA, the Forms Revisions replaced the Schedule B 
(Form 5500) ``Actuarial Information,'' with two actuarial schedules: 
Schedule MB (Form 5500) ``Multiemployer Defined Benefit Plan and 
Certain Money Purchase Plan Actuarial Information'' and Schedule SB 
(Form 5500) ``Single-Employer Defined Benefit Plan Actuarial 
Information.'' The Schedule R (Form 5500) ``Retirement Plan 
Information'' was also expanded for plan years 2008 and later to comply 
with other PPA reporting requirements, particularly for multiemployer 
plans, and to improve reporting on pension funding information, 
especially for very large pension plans. The Forms Revisions also 
eliminated the limited reporting exception for Internal Revenue Code 
(Code) section 403(b) plans starting with the 2009 plan year.
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    \3\ Other IRS schedules, including Schedule P (Form 5500), 
``Annual Return of Fiduciary of Employee Benefit Trust,'' and 
Schedule T (Form 5500), ``Qualified Pension Plan Coverage 
Information,'' were eliminated for years prior to the years covered 
by the Forms Revision.
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    To reflect the move to the EFAST2 wholly electronic processing 
system and the Forms Revisions, the Department previously announced, 
via the DFVC Program and EFAST2 Web sites, that filers must use the 
most current year EFAST2 form and schedules available for filing in 
EFAST2 (entering the correct plan year dates on the space provided at 
the beginning of the Form 5500), except they must instead attach as a 
pdf image file the correct year Schedules B, SB, MB, E, P, R, and T, as 
applicable, for delinquent filings for 2008 and earlier plan years 
(i.e., plan years that commenced prior to January 1, 2009). Such 
delinquent filers required to file pension funding, retirement plan, 
and other information on those schedules would thus file information in 
accordance with the rules that applied to the delinquent plan year in 
question.\4\ Where a filing delinquency is for a 2009 or later plan 
year, the delinquent filer generally must use the correct plan year 
form and schedules unless the filing is for a plan year that is more 
than three years prior to the most recent plan year forms available for 
filing in EFAST2. In such cases, delinquent filers must use the most 
current versions of Form 5500/5500-SF available for filing in EFAST2 
and the most current version of any required schedules, except pension 
plan delinquent filers required to file a Schedule SB or Schedule MB 
must attach as pdf images completed correct

[[Page 6137]]

year schedules so that they file actuarial information regarding the 
plan in accordance with the rules that applied to the delinquent plan 
year in question. Further, recognizing that the 2009 plan year changes 
for the Schedule C impose new and substantially expanded annual 
reporting requirements for service provider fees, and in particular 
indirect compensation received by service providers from sources other 
than the plan or plan sponsor, filers have the option of attaching a 
pdf image file of the correct year Schedule C when filing delinquent 
annual returns/reports for plan years prior to the 2009 plan year. 
Also, in light of the elimination of the limited reporting exception 
for Internal Revenue Code (Code) section 403(b) plans starting with the 
2009 plan year, for 2008 and prior plan year filings, Code section 
403(b) plans subject to Title I of ERISA continue to be able to avail 
themselves of the limited pension plan reporting option for delinquent 
filings for those years by answering only certain questions on the most 
current year EFAST2 form that mirrors the reporting requirements that 
applied under the limited pension plan reporting option for 2008 and 
prior plan years.
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    \4\ Copies of prior year schedules are available on the 
Department's and/or IRS's Web sites for filers to print out and 
complete, and then create pdf files to attach to their EFAST2 
electronic filing.
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    The Department added to its Web site an online tool to help filers 
determine which versions of Forms 5500/5500-SF and schedules to use 
when filing delinquent annual reports or amending prior year annual 
reports under EFAST2. Filers enter the beginning date of the plan year 
for which the late filings are made and the tool identifies the correct 
versions of the Forms 5500/5500-SF to use. The Department also does not 
expect the process of determining the proper forms to file will be 
difficult for most filers. Although EFAST2 at its start up on January 
1, 2010, was capable of processing 2009 and 2010 plan year forms, that 
capability will expand and EFAST2 ultimately will process forms for the 
most current year available for filing and the three prior plan year 
forms. Because the majority of delinquent filings submitted under the 
DFVC Program historically have been no more than three years late, the 
Department expects that most delinquent filers will be able to use the 
correct year Form 5500/5500-SF and schedules when correcting their 
delinquency under EFAST2.
    The Department also wants to emphasize that filers cannot submit 
the Schedule SSA (Form 5500) ``Annual Registration Statement 
Identifying Separated Participants With Deferred Vested Benefits'' or 
IRS Form 8955-SSA (in pdf format or otherwise) to EFAST2 or under the 
DFVC Program. Required information on deferred vested participants, 
even for 2008 and prior plan years, must be filed directly with the IRS 
and is outside the purview of the DFVC Program. More information 
regarding Form 8955-SSA and filing delinquent information on separated 
participants with deferred vested benefits is available from the IRS. 
(See the IRS Web site at www.irs.gov/ep.) \5\
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    \5\ In IRS Announcement 2011-21, 2011-12 IRB 567, the IRS 
designated Form 8955-SSA ``Annual Registration Statement Identifying 
Separated Participants With Deferred Vested Benefits,'' as the form 
to be used to satisfy the reporting requirements of Sec.  6057(a) of 
the Internal Revenue Code for plan years beginning on or after 
January 1, 2009, and sets forth the due dates for filing the Form 
8955-SSA for the 2009 plan year and subsequent plan years.
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2. Technical Updates

    The Department believes that the most expeditious way to keep 
filers informed of the most current information for participating in 
the DFVC Program and making civil penalty payments is to post new 
information about the DFVC Program on its Web site (www.dol.gov/ebsa). 
Thus, rather than periodically amending the DFVC Program with further 
Federal Register notices for non-substantive, technical changes, such 
as eliminating references to obsolete addresses for mailing penalty 
payments, this Notice includes several technical revisions to the DFVC 
Program so that it is better integrated with the DFVC Program Web site 
that is used for announcing non-substantive, technical adjustments to 
the Program. DFVC Program information will also continue to be 
available by telephoning the EFAST2 Help Line at 1-866-463-3278 (toll 
free), or by contacting the Department's Office of Chief Accountant, 
Division of Reporting and Compliance, DFVC Program Coordinator, at 202-
693-8360. (This is not a toll-free number).

3. Relief From IRS and PBGC Penalties for Late Filing of an Annual 
Return/Report

    Although the DFVC Program does not provide relief from late filing 
penalties under the Code or Title IV of ERISA, PBGC agreed to provide 
certain penalty relief under ERISA section 4071 of Title IV of ERISA 
for delinquent filings of the annual reports by Title I plans when the 
conditions of the DFVC Program were satisfied. See Section 5.03 of this 
Notice. Also, the IRS expects to issue separate guidance to provide 
certain penalty relief under the Code for delinquent Form 5500 and Form 
5500-SF Annual Returns/Reports filed for Title I plans where the 
conditions of this DFVC Program and any requirements imposed by the IRS 
under such separate guidance have been satisfied. See Section 5.02 of 
this Notice.
    As has always been the case under the DFVC Program, plans required 
to file the Form 5500 series under the Code that are not subject to 
Title I of ERISA are not eligible to participate in the DFVC Program 
described in this Notice.

Executive Order 12866

    Under Executive Order 12866, the Department must determine whether 
a regulatory action is ``significant'' and therefore subject to the 
requirements of the Executive Order and subject to review by the Office 
of Management and Budget (OMB). Under section 3(f), the 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 serious 
inconsistency or otherwise interfering with an action taken or planned 
by another agency; (3) materially altering the budgetary impacts of 
entitlement 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. Pursuant to the terms 
of the Executive Order, OMB has determined that this action is not 
significant under section 3(f)(4) of the Executive Order. Accordingly, 
OMB has not reviewed this action.

Paperwork Reduction Act

    The Department, as part of its continuing effort to reduce 
paperwork and respondent burden, 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. Chapter 35). 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.
    The DFVC Program is designed to encourage plan administrators to 
file delinquent Form 5500s through the

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assessment of reduced civil penalties. The DFVC Program was adopted by 
the Department in 1995, amended in 2002, and approved under OMB Control 
1210-0089, which currently is scheduled to expire on May 31, 
2014. This notice does not implement a substantive or material change 
to the information collection request (ICR); therefore, the Department 
has not requested OMB review at this time.

Regulatory Flexibility Act

    This document constitutes an enforcement policy of the Department 
and is not being issued as a general notice of proposed rulemaking. 
Therefore, the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., does 
not apply.

Unfunded Mandates Reform Act

    For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L. 
104-4), as well as Executive Order 12875, this regulatory action does 
not include any Federal mandate that may result in expenditures by 
State, local, or tribal governments, and will not impose an annual 
burden of $100 million or more on the private sector.

Federalism Statement

    Executive Order 13132 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, the relationship between 
the national government and States, or on the distribution of power and 
responsibilities among the various levels of government. This action 
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 
ERISA provides, with certain exceptions specifically enumerated, that 
the provisions of Titles I and IV of ERISA supersede any and all laws 
of the States as they relate to any employee benefit plan covered under 
ERISA. The requirements implemented in this enforcement policy do not 
alter the fundamental reporting requirements or penalty provisions of 
Title I 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.

Congressional Review Act

    The DFVC Program is subject to the provisions of the Congressional 
Review Act (5 U.S.C. 801 et seq.) and will be transmitted to Congress 
and the Controller General for review. The Program 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 or export markets.

Section 1--Delinquent Filer Voluntary Compliance (DFVC) Program

    The DFVC Program is intended to afford eligible plan administrators 
(described in Section 2 of this Notice) the opportunity to avoid the 
assessment of civil penalties under section 502(c)(2) of the Employee 
Retirement Income Security Act (ERISA) otherwise applicable to 
administrators who fail to file timely annual reports for plan years 
beginning on or after January 1, 1988. Eligible administrators may 
avail themselves of the DFVC Program by complying with the filing 
requirements and paying the civil penalties specified in Section 3 or 
Section 4, as appropriate, of this Notice.

Section 2--Scope, Eligibility and Effective Date

    .01 Scope. The DFVC Program described in this Notice provides 
relief from assessment of civil penalties under section 502(c)(2) of 
ERISA applicable to plan administrators who fail or refuse to file 
timely annual reports. Relief under this Program does not extend to 
penalties that may be assessed for annual reports that are determined 
by the Department of Labor (Department) to be incomplete or otherwise 
deficient.
    .02 Eligibility. The DFVC Program is available only to a plan 
administrator that complies with the requirements of Section 3 or 
Section 4, as appropriate, of this Notice prior to the date on which 
the administrator is notified in writing by the Department of a failure 
to file a timely annual report under Title I of ERISA.
    .03 Effective Date. The DFVC Program described herein shall be 
effective January 29, 2013. The Department intends this DFVC Program to 
be of indefinite duration; however, it may be modified from time to 
time or terminated in the sole discretion of the Department. The DFVC 
Program requirements and procedures, as updated from time to time, will 
be available through the Department's Web site at www.dol.gov/ebsa and 
through the Department's public disclosure room.

Section 3--Plan Administrators Filing Annual Reports

    .01 General. A plan administrator electing to file a late annual 
report under this DFVC Program must comply with the requirements of 
this Section 3.
    .02 Filing a Complete Annual Report.
    (a) Requirement To File The Delinquent Annual Return/Report. The 
plan administrator must file in accordance with this section a complete 
Form 5500 Series annual return/report, including any required schedules 
and attachments, for each plan year for which the plan administrator is 
seeking relief under this DFVC Program.
    (b) Requirement To File Electronically With EFAST2. The annual 
return/report must be filed electronically in accordance with the 
EFAST2 electronic filing requirements. EFAST2 is an all-electronic 
system designed to simplify and expedite the submission, receipt, and 
processing of the Form 5500 and Form 5500-SF. Under EFAST2, filers 
choose between using EFAST2-approved third party vendor software to 
prepare and submit the Form 5500 or Form 5500-SF or a free internet-
based filing tool (IFILE) designed for individual filers and service 
providers who choose to not use EFAST2-approved third party software. 
Completed forms are submitted via the Internet to EFAST2. See the 
EFAST2 Internet site at www.efast.dol.gov for information on electronic 
filing requirements and to view forms and instructions.
    (c) Requirements Relating to the Plan Year Forms and Schedules That 
Must Be Used in the Delinquent Filing. Plan administrators must use the 
plan year forms and schedules for the delinquent annual return/report 
filing as described in this paragraph (c). The Form 5500 Version 
Selection Tool, available at www.dol.gov/ebsa/5500selectorinstructions.html, incorporates the requirements in this 
paragraph (c) and may be used by plan administrators to determine which 
plan year version of the Form 5500 and which schedules must be used for 
each delinquent annual return/report.
    (1) General Rule. Except as provided in subparagraphs (2) and (3) 
of this section 3.02(c), filers must use the Form

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5500 or Form 5500-SF, including required schedules and attachments, for 
the plan year for which the delinquent annual return/report is being 
filed.
    (2) Delinquent Filings for Plan Years Commencing Before January 1, 
2009. Except as provided in subparagraphs (A), (B), and (C) of this 
section 3.02(c)(2), for plan years commencing before January 1, 2009 
(i.e., 2008 and earlier plan years), filers must use the latest plan 
year Form 5500 and schedules available and must indicate, in the 
appropriate space at the beginning of the Form 5500, the plan year for 
which the delinquent annual return/report is being filed.
    (A) Filers required to file a Schedule B, Schedule E, Schedule SB, 
Schedule MB, Schedule P, Schedule R, or Schedule T for the plan year 
for which the delinquent filing is being made must attach to the Form 
5500 an exact image in pdf format of the correct year schedule, and any 
required attachments, completed with blue or black ink in accordance 
with the applicable instructions for the schedule. See the EFAST2 
Internet site at www.efast.dol.gov for instructions on attaching pdf 
files to electronic filings.
    (B) Filers required to file Schedule C for the plan year for which 
the delinquent filing is being made have the option of attaching an 
exact image in pdf format of the correct year Schedule C, as 
applicable, completed with blue or black ink in accordance with the 
correct year instructions, instead of filing the latest plan year 
Schedule C available. See the EFAST2 Internet site at www.efast.dol.gov 
for instructions on attaching pdf files to electronic filings.
    (C) Filers filing for Code section 403(b) plans for plan years 
commencing before January 1, 2009, must use the latest plan year Form 
5500 available, but must complete only Part I and Part II, lines 1-4, 
and line 8 of the Form 5500.

CAUTION: The Form 5500-SF cannot be used to file a delinquent annual 
return/report for any plan years commencing before January 1, 2009 
(i.e., 2008 or earlier plan years).

    (3) Delinquent Filings For Plan Years Beginning On Or After January 
1, 2009, That Are More Than Three Plan Years Late. In the case of a 
delinquent filing for a plan year beginning on or after January 1, 
2009, that is for a plan year more than three plan years earlier than 
the latest plan year for which the Form 5500 and Form 5500-SF are 
available for filing, filers must use the latest available plan year 
Form 5500 or, if eligible, Form 5500-SF, and schedules, completed in 
accordance with the applicable instructions. In the case of plans 
required to file a Schedule SB or Schedule MB for the delinquent plan 
year, filers must attach as a pdf image a correct year Schedule SB or 
MB, including required attachments, for the plan year for which the 
delinquent filing is being made, completed with blue or black ink in 
accordance with the instructions for those schedules. Example: In 
February 2014, a plan administrator for a single employer defined 
benefit pension plan discovers that the plan did not file its 2009 Form 
5500. The 2013 Form 5500 and schedules were made available for filing 
through EFAST2 on January 1, 2014. Because the 2009 plan year is more 
than three years earlier than the latest available plan year Form 5500 
available for filing (2013), the plan administrator must use the 
current year (2013) Form 5500 and applicable schedules, except that the 
plan administrator would attach as a pdf image a correct year Schedule 
SB, including required attachments.

CAUTION: If Form 8955-SSA or Schedule SSA was required to be filed, for 
purposes of reporting information required by section 6057(a) of the 
Code, for the plan year for which a delinquent filing is being made, 
the filer must not under any circumstances submit the form or schedule 
to EFAST2 with the delinquent annual return/report. Instead, a Form 
8955-SSA (and not a Schedule SSA) must be submitted directly to the IRS 
in accordance with applicable IRS guidance. See www.irs.gov/ep.

    Note:  For informational copies of the Forms, visit www.dol.gov/ebsa/5500main.html and www.irs.gov/ep. To file, go to 
www.efast.dol.gov. For more information on filing electronically, 
see the EFAST2 Internet site at www.efast.dol.gov.

    .03 Payment of Applicable Penalty Amount.
    (a) The plan administrator shall pay the applicable penalty amount 
by submitting electronic payment in accordance with the online penalty 
calculator and the web payment system on the Department's Web site at 
www.askebsa.dol.gov/dfvcpay/calculator. Plan administrators may also 
send the penalty payment by check by mail to the address specified on 
the Department's Web site, along with a paper copy of the 
electronically submitted Form 5500 or Form 5500-SF (without schedules 
or attachments). Annual returns/reports for multiple plans may not be 
included in a single DFVC Program submission. A separate submission to 
the DFVC Program (including a separate electronic payment for the 
applicable penalty amount) must be made for each plan. Online penalty 
payments cannot be supplemented later to add additional filings. 
Additional delinquent annual return/report filings will require a new 
online submission and a new applicable penalty calculation.
    (b) The applicable penalty amount shall be determined as follows:
    (1) In the case of a plan with fewer than 100 participants at the 
beginning of the plan year (or a plan that would be treated as such a 
plan under the ``80-120'' participant rule described in 29 CFR 
2520.103-1(d) for the subject plan year) (hereinafter ``small plan''), 
the applicable penalty amount is $10 per day for each day the annual 
report is filed after the date on which the annual report was due 
(without regard to any extensions), not to exceed the greater of: $750 
per annual report or, in the case of a DFVC Program submission relating 
to more than one delinquent annual report for the plan, $1,500 per 
plan.
    (2) In the case of a plan with 100 or more participants at the 
beginning of the plan year (other than a plan that is eligible to use 
and uses the ``80-120'' participant rule) (hereinafter ``large plan''), 
the applicable penalty amount is $10 per day for each day the annual 
report is filed after the date on which the annual report was due 
(without regard to any extensions), not to exceed the greater of: 
$2,000 per annual report or, in the case of a DFVC Program submission 
relating to more than one delinquent annual report for the plan, $4,000 
per plan.
    (3) In the case of a DFVC Program submission relating to more than 
one delinquent annual report for a plan, the applicable penalty amount 
shall be determined by reference to paragraph (b)(2) if for any plan 
year for which the submission is made the plan was a ``large plan.''
    (4) In the case of a plan administrator filing an annual report for 
a ``small plan'' that is sponsored by a Code section 501(c)(3) 
organization (including a Code section 403(b) plan), the applicable 
penalty amount is $10 per day for each day the annual report is filed 
after the date on which the annual report was due (without regard to 
any extensions), not to exceed $750 per DFVC Program submission, 
including DFVC Program submissions that relate to more than one 
delinquent annual report for the plan. This paragraph (b)(4) shall not 
apply if, as of the date the plan administrator files pursuant to this 
DFVC Program, there is a delinquent or late annual report due for a 
plan year for which the plan was a ``large plan.''
    .04 Liability for Applicable Penalty Amount.

[[Page 6140]]

    The plan administrator is personally liable for the payment of 
civil penalties assessed under section 502(c)(2) of ERISA; therefore, 
civil penalties, including amounts paid under this DFVC Program, shall 
not be paid from the assets of an employee benefit plan.

Section 4--Plan Administrators Filing Notices for Apprenticeship and 
Training Plans and Statements for ``Top Hat'' Plans

    .01 General. Administrators of apprenticeship and training plans, 
described in 29 CFR 2520.104-22, and administrators of pension plans 
for a select group of management or highly compensated employees, 
described in 29 CFR 2520.104-23(a) (``top hat plans''), who elect to 
file the applicable notice and statement described in 29 CFR 2520.104-
22 and 29 CFR 2520.104-23, respectively, as a condition of relief from 
the annual reporting requirements may, in lieu of filing any past due 
annual report and paying otherwise applicable civil penalties, comply 
with the requirements of this Section 4. Administrators who have 
complied with the requirements of this Section 4 shall be considered as 
having elected compliance with the exemption(s) and/or alternative 
method of compliance prescribed in 29 CFR 2520.104-22 or 2520.104-23, 
as appropriate, for all subsequent plan years.
     Filing Applicable Notice or Statement With the U.S. Department Of 
Labor.
    The plan administrator must prepare and file a notice or statement 
meeting the requirements of 29 CFR 2520.104-22 or 29 CFR 2520.104-23, 
as appropriate.
    The apprenticeship and training plan notice described in 29 CFR 
2520.104-22 shall be sent to the Employee Benefits Security 
Administration in accordance with the instructions in that regulation.
    The ``top hat'' plan statement described in 29 CFR 2520.104-23 
shall be sent to the Employee Benefits Security Administration in 
accordance with the instructions in that regulation.

    Note: A plan sponsor maintaining more than one ``top hat'' plan 
may file a single statement covering multiple plans. See 29 CFR 
2520.104-23(b).

    .03 Payment of Applicable Penalty Amount.
    (a) The plan administrator of each such apprenticeship and training 
or ``top hat'' plan shall pay the applicable penalty amount by 
submitting electronic payment in accordance with the online penalty 
calculator and the web payment system on the Department's Web site. 
(See http://www.dol.gov/ebsa/calculator/dfvcpmain.html). The plan 
administrator may also pay the penalty by mailing a check to the 
address specified on the Department's Web site, along with a paper copy 
of the most current Form 5500 with only items 1a-1b, 2a-2c, and 3a-3c 
completed. Use plan number 888 for all top hat plans and 999 for all 
apprenticeship and training plans. The Form 5500 prepared for DFVCP 
payment verification purposes should not be filed with EFAST2.

    Note: A paper submission of the Form 5500 to the DFVC program is 
in addition to the submission of the statement described in 
regulation section 29 CFR Sec.  2520.104-22 or 29 CFR 2520.104-23 
that is filed directly with the Department.

    (b) The applicable penalty amount for apprenticeship and training 
and ``top hat'' plans is $750 for each DFVC Program submission, without 
regard to the number of plans maintained by the same plan sponsor for 
which notices and statements are filed pursuant to Section 4 and 
without regard to the number of plan participants covered under such 
plan or plans.
    .04 Liability for Applicable Penalty Amount.
    The plan administrator is personally liable for the payment of 
civil penalties assessed under section 502(c)(2) of ERISA; therefore, 
civil penalties, including amounts paid under this DFVC Program, shall 
not be paid from the assets of an employee benefit plan.

Section 5--Waiver of Right to Notice, Abatement of Assessment and Plan 
Status

    .01 Payment of a penalty under the terms of this DFVC Program 
constitutes, with regard to the filings submitted under the Program, a 
waiver of an administrator's right both to receive notices of intent to 
assess a penalty under 29 CFR 2560.502c-2 from the Department and to 
contest the Department's assessment of the penalty amount.
    .02 Although this Notice does not provide relief from late filing 
penalties under the Code, the IRS has provided the Department with the 
following information. The Code and the regulations thereunder require 
information to be filed on the Form 5500 Series Annual Return/Report 
and provide the IRS with authority to impose or assess penalties for 
failing or refusing to timely file an annual return/report. The IRS 
expects to issue separate guidance to provide certain penalty relief 
under the Code for delinquent Form 5500 and Form 5500-SF Annual 
Returns/Reports filed for Title I plans where:
    (a) The conditions of this DFVC Program have been satisfied 
(including filing Schedules E, P, R, and T, as applicable); and
    (b) Any requirements imposed by the IRS in such separate guidance 
are satisfied.
    The relief under this notice is available only to the extent that a 
Form 5500 is required under Title I of ERISA. Plans that are not 
subject to Title I of ERISA are ineligible to participate in the DFVC 
Program.
    .03 Although this Notice does not provide relief from late filing 
penalties under Title IV of ERISA, the Pension Benefit Guaranty 
Corporation (PBGC) has provided the Department with the following 
information. Title IV of ERISA and the regulations thereunder require 
information to be filed on the Form 5500 and Form 5500-SF Annual 
Returns/Reports and provide the PBGC with authority to assess penalties 
against a plan administrator under ERISA section 4071 for late filing 
of the Form 5500 Series Annual Return/Report. The PBGC has agreed that 
it will not assess a penalty against a plan administrator under ERISA 
section 4071 for late filing of a Form 5500 or Form 5500-SF Annual 
Return/Report, as appropriate, filed for a Title I plan where the 
conditions of this DFVC Program have been satisfied.
    .04 Acceptance by the Department of a filing and penalty payment 
made pursuant to this DFVC Program does not represent a determination 
by the Department as to the status of the arrangement as a plan, the 
particular type of plan under Title I of ERISA, the status of the plan 
sponsor under the Code, or a determination by the Department that the 
provisions of 29 CFR 2520.104-22 or 29 CFR 2520.104-23 have been 
satisfied.

    Signed at Washington, DC, this 18th day of January 2013.
Phyllis C. Borzi,
Assistant Secretary, Employee Benefits Security Administration, U.S. 
Department of Labor.
[FR Doc. 2013-01616 Filed 1-28-13; 8:45 am]
BILLING CODE 4510-29-P