[Federal Register Volume 88, Number 96 (Thursday, May 18, 2023)]
[Rules and Regulations]
[Pages 31608-31610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09227]


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DEPARTMENT OF LABOR

Employee Benefits Security Administration

29 CFR Part 2520

RIN 1210-AB97


Annual Reporting and Disclosure

AGENCY: Employee Benefits Security Administration, Labor.

ACTION: Final rule; technical correction; change to operational date.

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SUMMARY: On February 24, 2023, the Employee Benefits Security 
Administration for the U.S. Department of Labor (the Department or DOL) 
published a final rule on annual reporting requirements under Title I 
of the Employee Retirement Income Security Act of 1974, as amended 
(ERISA). This document contains two technical changes to the 
regulations: it changes the operational date of the final

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rule amendments to the regulations to address the Congressional Review 
Act (CRA) requirement under which a major rule cannot be effective 
until 60 days after publication in the Federal Register or receipt by 
Congress, whichever is later. The other corrects a typographical error 
in the lettering of a paragraph in the regulations.

DATES: This final rule is effective May 31, 2023. The operational date 
of the amendments published at 88 FR 11793 is changed from April 25, 
2023, to May 31, 2023.

FOR FURTHER INFORMATION CONTACT: Janet Song, Florence Novellino or 
Colleen Brisport Sequeda, Office of Regulations and Interpretations, 
Employee Benefits Security Administration, U.S. Department of Labor, 
(202) 693-8500 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

A. Background

    On February 24, 2023, the Department of Labor (DOL or Department), 
the Internal Revenue Service (IRS) and the Pension Benefit Guaranty 
Corporation (PBGC) published Federal Register notices that announced 
changes to the Form 5500 Annual Return/Report of Employee Benefit Plan 
and Form 5500-SF Short Form Annual Return/Report of Small Employee 
Benefit Plan. For DOL, the final rule included a Notice of Final Forms 
Revisions (Final Forms Revisions) jointly issued by the DOL, IRS and 
PBGC, and a DOL-only Final Rule (Final Rule) that made corresponding 
changes to the DOL annual reporting regulations under Title I of 
ERISA.\1\
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    \1\ See Notice of Final Forms Revisions at 88 FR 11984 and Final 
Rule at 88 FR 11793. The DOL, IRS, PBGC treat the Form 5500 annual 
return/report as an ``information collection'' subject to the 
Paperwork Reduction Act (PRA), but, due to the statutory and 
regulatory provisions in Title I of ERISA governing annual reporting 
by employee benefit plans, DOL changes to the forms and instructions 
generally are rules under the Administrative Procedure Act (APA). 
Sometimes changes in the forms and instructions do not require 
changes to the DOL's underlying reporting regulations. In those 
cases, one Federal Register notice is used as both the PRA notice 
and the APA rulemaking document. See, e.g., www.federalregister.gov/documents/2022/05/23/2022-10658/annual-information-returnreports. 
When changes to the forms and schedules require amendments to DOL's 
annual reporting regulations (as they did here with the addition of 
new schedules and a new reporting option), there is a tri-agency 
notice with IRS and PBGC that includes the PRA sections and DOL 
publishes a separate notice with the regulatory amendments and the 
APA rulemaking components (e.g., regulatory impact analysis and CRA 
classification). The Final Forms Revisions and Final Rule include 
cross-references that are intended to communicate the connectedness 
of the notices as a final rule.
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    Pursuant to the Congressional Review Act (CRA), OMB designated the 
final rule as a ``major rule,'' as defined by 5 U.S.C. 804(2).\2\ The 
changes to the annual return/report forms, instructions, and 
regulations are applicable to annual return/reports for plan years 
beginning on or after January 1, 2023, (see 88 FR 11984). Annual 
return/reports generally are due to be filed beginning seven months 
after the end of the applicable plan year (e.g., July 31, 2024, for 
2023 annual return/reports for calendar year plans). The Final Rule had 
a stated effective date of April 25, 2023, (see 88 FR 11793).
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    \2\ See 88 FR at 11797.
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    The Final Rule included additions to the ERISA annual reporting 
regulations to implement the directive to the Secretary of Labor in 
section 202 of the Setting Every Community Up for Retirement 
Enhancement Act of 2019, commonly known as the SECURE Act, to jointly 
with the Secretary of the Treasury provide for a single, consolidated 
Form 5500 filing option that would satisfy the annual reporting 
obligations for the defined contribution pension plans participating in 
a Defined Contribution Group (DCG) reporting arrangement. The Final 
Rule included newly added regulations at 29 CFR 2520.103-14 and 
2520.104-51 setting forth requirements applicable to the DCG reporting 
arrangement, the participating plans, and the content of the 
consolidated Form 5500 filing.

B. CRA Date

    The CRA requires that before a final rule can take effect it must 
be submitted to the Senate and the House of Representatives and to the 
Government Accountability Office (GAO), along with a concise general 
statement of the rule and its effective date.\3\ Under the CRA, as 
pertinent here, the effective date of a major rule (which corresponds 
to an operational date in a Federal Register rule document) must be no 
earlier than ``the later of the date occurring 60 days after the date 
on which . . . the Congress received the [required] report . . . or . . 
. the rule is published in the Federal Register . . . .'' As noted 
above, the Final Rule and Final Forms Revisions were designated as a 
major rule for DOL and were published in the Federal Register on 
February 24, 2023. Although the report to GAO was delivered via the GAO 
electronic process for CRA submissions \4\ on February 24, 2023, the 
Congressional Record reflects that the House received the final rule on 
February 28, 2023, 169 Cong. Rec. H1111 (daily ed. Mar. 3, 2023), and 
the Senate on March 6, 2023, 169 Cong. Rec. S858 (daily ed. March 21, 
2023). As noted above, the Final Rule's notice at 88 FR 11793 published 
on February 24, 2023, in the Federal Register, has a stated effective 
date of April 25, 2023 (which means that the Federal Register rule's 
operational date was also April 25, 2023). Therefore, based on the 
dates of House and Senate receipt, that stated CRA effective date is 
earlier than 60 days after the receipt by Congress of the published 
final rule. In light of the fact that the April 25 effective date has 
passed, this final rule changes the operational date of April 25, 2023 
to May 31, 2023, a date that is later than 60 days after receipt of the 
published rule by Congress.
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    \3\ See 5 U.S.C. 801-808. Under the Congressional Review Act 
(CRA) two types of rules, major and nonmajor, must be submitted to 
both Houses of Congress and GAO before either can take effect. CRA 
defines a ``major'' rule as one which has resulted in or is 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, government agencies, or geographic regions; 
or (3) significant adverse effects on competition, employment, 
investment, productivity, innovation, or on the ability of U.S.-
based enterprises to compete with foreign-based enterprises in 
domestic and export markets.
    \4\ See GAO's CRA FAQ at www.gao.gov/legal/other-legal-work/congressional-review-act.
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C. 29 CFR 2520.103-14 Paragraph Lettering

    The Final Rule added 29 CFR 2520.103-14 as a new annual reporting 
regulation that sets forth requirements for the consolidated annual 
report for a DCG reporting arrangement. The preamble of the Final Rule 
stated that paragraph (c) of Sec.  2520.103-14 provides that DCG 
reporting arrangements must comply with the electronic filing 
requirements that apply to all plan filers and direct filing entities, 
including the requirement that the common plan administrator of all the 
participating plans that is filing the consolidated Form 5500 must 
maintain an original copy, with all required signatures, as part of its 
records (which also would be treated as records of each of the 
participating plans). The published regulatory text, however, omitted 
paragraph (c) and designated the paragraph as paragraph (d). The 
Department is correcting the paragraph lettering to designate the 
paragraph as paragraph (c).

D. Good Cause Findings Under 5 U.S.C. 553(b)(3)(B) and 553(d)(3)

    Under 5 U.S.C. 553(b) of the Administrative Procedure Act (APA), an 
agency is required to publish a notice of the proposed rule in the 
Federal Register before the provisions of a rule take effect. In 
addition, section 553(d) of

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the APA mandates a 30-day delay in effective date after issuance or 
publication of a substantive rule. Sections 553(b)(3)(B) and 553(d)(3) 
of the APA provide for exceptions from the APA notice and comment, and 
delay in effective date requirements. Section 553(b)(3)(B) of the APA 
authorizes an agency to dispense with normal notice and comment 
rulemaking procedures for good cause if the agency makes a finding that 
the notice and comment process is impracticable, unnecessary, or 
contrary to the public interest, and includes a statement of the 
finding and the reasons for it in the rule. Similarly, section 
553(d)(3) of the APA allows the agency to avoid the 30-day delay in 
effective date where good cause is found and the agency includes in the 
rule a statement of the finding and the reasons for it.
    The Department is publishing the change of the operational date 
without advance notice or an opportunity for comment because it falls 
under the ``good cause'' exemption of the Administrative Procedure Act, 
5 U.S.C. 553(b)(3)(B). Undertaking notice and comment procedures to 
incorporate the corrections in this document would be contrary to the 
public interest because it is in the public interest to timely provide 
a final rule that accurately reflects changes to the annual return/
report forms, instructions, and regulations that are applicable to 
annual return/reports for plan years beginning on or after January 1, 
2023. Further, such procedures would be unnecessary because the 
Department is not making substantive revisions to the Final Rule, but 
rather, it is changing the operational date by 36 days from April 25, 
2023, to May 31, 2023, to reflect the CRA requirement that the 
effective date be no earlier than 60 days from receipt of the rule by 
the Congress. The Department, accordingly, finds good cause under 5 
U.S.C. 553(b)(3)(B) to waive public comment. For the same reasons, the 
Department similarly finds good cause under 5 U.S.C. 555(d)(3) to avoid 
the 30-day delay in effective date after issuance of a substantive 
rule.\5\
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    \5\ The Department is not making a ``good cause'' finding for 
fixing the typographical error in the paragraph lettering in 29 CFR 
2520.103-14 because it does not impose any new or substantive 
requirement subject to the APA notice and comment or effective date 
provisions.
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List of Subjects in 29 CFR Part 2520

    Accounting, Employee benefit plans, Freedom of information, 
Pensions, Public assistance programs, Reporting and recordkeeping 
requirements.
    For the reasons discussed in the preamble, 29 CFR part 2520 is 
amended as follows:

PART 2520--RULES AND REGULATIONS FOR REPORTING AND DISCLOSURE

0
1. The authority citation for part 2520 continues to read as follows:

    Authority: 29 U.S.C. 1002(44), 1021-1025, 1027, 1029-31, 1059, 
1134, and 1135; and Secretary of Labor's Order 1-2011, 77 FR 1088. 
Sec. 2520.101-2 also issued under 29 U.S.C. 1132, 1181-1183, 1181 
note, 1185, 1185a-b, 1191, and 1191a-c. Sec. 2520.101-5 also issued 
under 29 U.S.C. 1021 note; sec. 501, Pub. L. 109-280, 120 Stat. 780; 
sec. 105(a), Pub. L. 110-458, 122 Stat. 5092. 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; sec. 1510, Pub. 
L. 105-34, 111 Stat. 1068.


Sec.  2520.103-14   [Amended]

0
2. In Sec.  2520.103-14, redesignate paragraph (d) as paragraph (c).

    Signed at Washington, DC, this 26th day of April, 2023.
Lisa M. Gomez,
Assistant Secretary, Employee Benefits Security Administration, U.S. 
Department of Labor.
[FR Doc. 2023-09227 Filed 5-17-23; 8:45 am]
BILLING CODE 4510-29-P