Rule2021-27764
Revision of Annual Information Return/Reports
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 29, 2021
Effective
January 1, 2021
Issuing agencies
Labor DepartmentEmployee Benefits Security Administration
Abstract
This document contains final revisions to the instructions for the Form 5500 Annual Return/Report of Employee Benefit Plan and Form 5500-SF Short Form Annual Return/Report of Small Employee Benefit Plan effective for plan years beginning on or after January 1, 2021. These final revisions to the instructions were included in a broader proposal of form and instruction changes published on September 15, 2021. The limited number of instruction changes in this document implement annual reporting changes for multiple-employer plans (including pooled employer plans) that result from statutory provisions in section 101 of the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act). The other changes to the Form 5500 Annual Return/Report included in the September 2021 proposal will be the subject of one or more separate and later final notices.
Full Text
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<title>Federal Register, Volume 86 Issue 247 (Wednesday, December 29, 2021)</title>
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[Federal Register Volume 86, Number 247 (Wednesday, December 29, 2021)]
[Rules and Regulations]
[Pages 73976-73984]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-27764]
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DEPARTMENT OF LABOR
Employee Benefits Security Administration
29 CFR Part 2520
RIN 1210-AB97
Revision of Annual Information Return/Reports
AGENCY: Employee Benefits Security Administration, Labor.
ACTION: Final forms revisions.
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SUMMARY: This document contains final revisions to the instructions for
the Form 5500 Annual Return/Report of Employee Benefit Plan and Form
5500-SF Short Form Annual Return/Report of Small Employee Benefit Plan
effective for plan years beginning on or after January 1, 2021. These
final revisions to the instructions were included in a broader proposal
of form and instruction changes published on September 15, 2021. The
limited number of instruction changes in this document implement annual
reporting changes for multiple-employer plans (including pooled
employer plans) that result from statutory provisions in section 101 of
the Setting Every Community Up for Retirement Enhancement Act of 2019
(SECURE Act). The other changes to the Form 5500 Annual Return/Report
included in the September 2021 proposal will be the subject of one or
more separate and later final notices.
DATES: The final instruction revisions in this document are effective
for plan years beginning on or after January 1, 2021. The Form 5500
Annual Return/Report for the 2021 plan year generally is not required
to be filed until seven months after the end of the 2021 plan year,
e.g., July 2022 for calendar year plans, and a 2\1/2\-month extension
is available.
FOR FURTHER INFORMATION CONTACT: Janet Song or Florence Novellino,
Office of Regulations and Interpretations, Employee Benefits Security
Administration, U.S. Department of Labor, (202) 693-8500, (this is not
a toll-free number).
Customer service information: Individuals interested in obtaining
information from the DOL concerning Title I of Employee Retirement
Income Security Act of 1974 (ERISA) may call the EBSA Toll-Free Hotline
at 1-866-444-EBSA (3272) or visit the DOL's website (<a href="http://www.dol.gov/agencies/ebsa">www.dol.gov/agencies/ebsa</a>).
SUPPLEMENTARY INFORMATION:
I. Background
Titles I and IV of Employee Retirement Income Security Act of 1974
(ERISA) and the Internal Revenue Code (Code), generally require pension
and other employee benefit plans to file annual returns/reports
concerning, among other things, the financial condition and operations
of the plans. Filing a Form 5500 Annual Return/Report of Employee
Benefit Plan (Form 5500) or, if eligible, a Form 5500-SF Short Form
Annual Return/Report of Small Employee Benefit Plan (Form 5500-SF),
together with any required schedules and attachments (together ``the
Form 5500 Annual Return/Report''),\1\ in accordance with their
instructions, generally satisfies these annual reporting requirements.
ERISA section 103 broadly sets out annual financial reporting
requirements for employee benefit plans under Title I of ERISA. The
Form 5500 Annual Return/Report for Title I purposes is promulgated
pursuant to DOL regulations under the ERISA provisions authorizing
limited exemptions and simplified reporting and disclosure for welfare
plans under ERISA section 104(a)(3), simplified annual reports under
ERISA section 104(a)(2)(A) for pension plans that cover fewer than 100
participants, and alternative methods of compliance for all pension
plans under ERISA section 110. The Form 5500 Annual Return/Report, and
related instructions and regulations, are also promulgated under the
DOL's general regulatory authority in ERISA sections 109 and 505.
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\1\ References to the ``Form 5500 Annual Return/Report'' may
include, depending on the context, the Form 5500, the Form 5500-SF,
and the Form 5500-EZ, Annual Return of One Participant (Owners and
Their Spouses) Retirement Plan. The Form 5500-EZ is a return that is
required only to satisfy the Code. Form 5500-EZ filers are not
subject to Title I of ERISA.
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The Setting Every Community Up for Retirement Enhancement Act of
2019 (SECURE Act), included various provisions designed to improve the
private employer-based retirement system that either directly changed
or necessitated changes to the annual reporting requirements under
ERISA and the Code.\2\ On September 15, 2021, the DOL, the Internal
Revenue Service (IRS), and the Pension Benefit Guaranty Corporation
(PBGC) (collectively ``the Agencies'') published a notice of proposed
forms revisions (NPFR) to amend the Form 5500 Annual Return/Report to
implement the SECURE Act and related reporting changes with a limited
number of proposed forms revisions beginning with the 2021 reporting
year; with most of the proposed revisions not applying until the 2022
reporting year. 86 FR 51488 (Sept. 15, 2021). The DOL simultaneously
published a proposed rulemaking (NPRM) required to implement the
proposed forms revisions. 86 FR 51284 (Sept. 15, 2021). The Agencies
received 114 comments on the NPFR and NPRM. The comments, which were
all posted on the Department's website, generally focus on the proposed
changes for the 2022 plan year forms. This document is limited to the
changes for the 2021 plan year forms. Specifically, the reporting
changes are revisions to the instructions that: (1) Implement the
SECURE Act amendment to ERISA section 103(g) by requiring multiple
employer defined contribution pension plans to include aggregate
account balance information by employer on their existing Form 5500
attachment on participating employer information; and (2) noting that a
pooled employer plan is a multiple employer plan that files a single
Form 5500 Annual Return/Report, and requiring such plans to indicate in
an attachment to their Form 5500 (i) whether the plan's pooled plan
provider complied with the Form PR registration requirements for pooled
plan providers; and (ii) if the answer is yes, to provide the AckID
number for the pooled plan provider's latest Form PR filing.\3\
Although not a change to the instructions, in response to comments
raising the issue, this document also advises filers that the
Department is continuing the current requirement that welfare plans
that file a Form 5500 must include participating employer information
notwithstanding that the SECURE Act amended ERISA section 103(g) to
limit that specific section to retirement plans. No changes to the
DOL's implementing regulations are required for these instruction
changes. The Agencies intend to address the other changes to the Form
5500 and related regulations proposed in the September 2021 NPFR and
NPRM in one or more other separate and later Notices of Adoption of
Final Forms Revisions and Notices of Final Rulemaking. The instruction
changes
[[Page 73977]]
being added beginning with the 2021 reporting year are discussed below.
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\2\ The SECURE Act was enacted on December 20, 2019, as Division
O of the Further Consolidated Appropriations Act, 2020 (Pub. L. 116-
94).
\3\ These requirements for pooled employer plans are limited to
the Form 5500 because the Form 5500-SF instructions provide,
consistent with the proposal, that pooled employer plans are not
eligible to file the Form-SF. The proposal would also have required
that all multiple employer plans file the Form 5500 regardless of
whether they would otherwise be eligible to file the Form 5500-SF.
The Department is not adopting that change for all MEPs in the 2021
forms but intends to address that proposed change in a separate and
later Notice.
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II. 2021 Form 5500 Annual Return/Report Changes for MEPs and Pooled
Empoyer Plans
SECURE Act section 101 amended ERISA section 3(2) and added ERISA
sections 3(43) and 3(44) to allow for a new type of ERISA-covered
multiple employer pension plan (MEP) for plan years beginning on or
after January 1, 2021--a defined contribution pension plan called a
``pooled employer plan'' operated by a ``pooled plan provider.'' Pooled
employer plans allow multiple unrelated employers to participate
without the need for any common interest among the participating
employers (other than having adopted the plan). Under section 3(2) of
ERISA, as amended by the SECURE Act, a pooled employer plan is treated
for purposes of ERISA as a single plan that is a multiple employer
plan. New section 3(44) of ERISA establishes requirements for pooled
plan providers, including a requirement to register with the DOL before
beginning operations as a pooled plan provider. A parallel requirement
to file a registration statement with the Secretary of Treasury is in
section 413(e)(3)(A)(ii) of the Code. On November 16, 2020, the DOL
published a notice of final rulemaking establishing the registration
requirement for pooled plan providers. 85 FR 72934 (Nov. 16, 2020). The
Treasury Department and the IRS have advised that filing the Form PR
with the DOL will satisfy the requirement to register with the
Secretary of the Treasury. The instructions to the Form PR (Pooled Plan
Provider Registration) (Form PR) advised registrants to use the same
identifying information on the Forms 5500 Annual Return/Report filed by
the pooled employer plans, particularly name; EIN for the pooled plan
provider; any identified affiliates providing services; trustees; and
plan name and number for each pooled employer plan.
Section 101 of the SECURE Act also amended ERISA section 103(g),
effective for plan years beginning on or after January 1, 2021. Section
103(g) was added to ERISA by the Cooperative and Small Employer Charity
Pension Flexibility Act (CSEC Act) in 2014.\4\ Prior to the SECURE Act
amendment, section 103(g) required multiple employer plans to include
with their annual reports ``a list of participating employers'' and,
with respect to each participating employer, ``a good faith estimate of
the percentage of total contributions made by such participating
employer during the plan year.'' In response to the CSEC Act, the Form
5500 instructions for 2014 and later were amended to provide for all
multiple employer plans to include the section 103(g) information as a
nonstandard attachment.\5\ SECURE Act section 101(d) amended ERISA
section 103(g) by providing that annual reports for ``any plan to which
[ERISA] section 210(a) applies (including a pooled employer plan)''
also must include two additional pieces of information: (1) The
aggregate account balances attributable to each employer in the plan
(determined as the sum of the account balances of the employees of such
employer and the beneficiaries of such employees), and (2) with respect
to a pooled employer plan, identifying information for the person
designated under the terms of the plan as the pooled plan provider.
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\4\ Public Law 113-97 (Apr. 7, 2014).
\5\ 79 FR 66617 (Nov. 10, 2014).
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As discussed in the NPFR, the statutory establishment of pooled
employer plans as a type of multiple employer plan under Title I of
ERISA requires some adjustments to the Form 5500 Annual Return/Report
to acknowledge the existence of this new type of plan and to confirm
that pooled employer plans must file a Form 5500 Annual Return/Report
in accordance with the requirements that apply to other MEPs that file
the Form 5500. The adjustments to accommodate pooled employer plan
reporting on the Form 5500 were presented in the NPFR largely in the
form of a new proposed Schedule MEP and its instructions that would be
a required part of the Form 5500 Annual Return/Report for various types
of MEPs, including pooled employer plans. As proposed, however, the
Schedule MEP would not be effective until plan years beginning on or
after January 1, 2022, but under the SECURE Act, pooled employer plans
could begin operating for plan years beginning on or after January 1,
2021. In order to implement core elements of the SECURE Act section
101(d) reporting requirements on a timely basis, the NPFR included
proposed amendments to the instructions for the 2021 Form 5500 and Form
5500-SF, specifically for the multiple-employer plan check box that is
currently on Part I, line A of the Form 5500 and Form 5500-SF. Upon
review of the public comments, the Department continues to believe that
amending those instructions is an efficient and appropriate way to
provide for the reporting of ERISA section 103(g) information for the
2021 reporting year.
Specifically, the instructions to the 2021 Form 5500 \6\ for Part
I, Line A (the multiple-employer plan checkbox) are being amended to
note that (1) a pooled employer plan operated by a pooled plan provider
that meets the definition under ERISA section 3(43) is a multiple
employer plan, and (2) like other ERISA-covered pension MEPs, a single
Form 5500 Annual Return/Report is required to be filed for a pooled
employer plan.\7\ The 2021 instructions to the Form 5500 and Form 5500-
SF for the multiple-employer plan check box are being further amended
to require MEPs to include a new data element on the currently required
2021 non-standard attachment, specifically the ``Aggregate Account
Balances Attributable to Participating Employer'' (element 4). The
instructions to the multiple-employer plan check box currently provide
that the Annual Return/Report filed for a multiple-employer plan (MEPs
and multiple employer welfare plans) must include a non-standard
attachment that identifies the participating employers in the plan by
name and employer identification number (EIN) and include for each
participating employer an estimate of
[[Page 73978]]
the percentage of total contributions for the plan year made by each
employer.\8\
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\6\ As noted above, pooled employer plans are not eligible to
file the Form 5500-SF so the instructions describing the pooled
employer plan's status as a MEP are not being added to the Form
5500-SF instructions.
\7\ A commenter presenting itself as representing accounting
industry interests asked for clarification regarding audit
requirements for pooled employer plans. To some extent, however, the
comment incorrectly assumed that a pooled employer plan operates as
an aggregation of many plans, rather than as a single ERISA-covered
plan. For example, the commenter asked ``If a pooled employer plan
is comprised of hundreds of plans, will each plan be required to be
audited annually?'' The commenter also asked ``If the DOL permits
rotation of audit procedures for plans participating in a pooled
employer plan, how will that be determined?'' The commenter also
asked ``Will the DOL provide guidance for the auditor if there are
one or more plans within the pooled employer plan that are not
compliant with the plan document or with ERISA?'' A pooled employer
plan, like other MEPs, is a single plan covering the employees of
multiple employers. It is not comprised of multiple separate plans,
as would be true of the proposed new direct filing entity the
``DCG.'' The Department notes that nothing in the SECURE Act changed
the ERISA independent qualified public accountant (IQPA) audit
requirements as they apply to pooled employer plans. Rather, under
ERISA, pooled employer plans are subject to the Form 5500 Annual
Return/Report requirements that apply generally to employee pension
benefit plans, including the audit requirements under ERISA that
apply to employee pension benefit plans generally. As such, the
audit must be performed in accordance with Generally Accepted
Auditing Standards (GAAS), which are established by the accounting
industry not the Department. How GAAS applies to pooled employer
plans, including any differences in audit procedures that may be
required under GAAS, are issues that are beyond the scope of these
forms revisions.
\8\ The instruction further provides that unfunded, fully
insured, or combination unfunded/insured multiple employer welfare
plans that are exempt under 29 CFR 2520.104-44 from filing financial
statements with their annual report must attach a list of
participating employers, but do not have to include an estimated
amount of contributions from each employer.
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Some commenters asked that the Department interpret the SECURE
Act's requirement to report employer-level aggregate account balances
as applying only to defined contribution MEPs. The commenters noted
that neither the operative language of the SECURE ACT nor its
legislative history support applying this requirement to defined
benefit pension plans that do not maintain ``account balances'' for
each employee. Two of these commenters noted that this requirement is
particularly inappropriate for defined benefit MEPs established before
1989 that determine their minimum funding requirements as if all
participants were employed by a single employer and, therefore, did not
elect ``employer-by-employer'' treatment under the Technical and
Miscellaneous Revenue Act of 1988 (TAMRA). One of the commenters also
noted that participants already receive annual funding notices on their
defined benefit pension plan, so reporting of an artificial ``account
balance'' could give the false impression that, in these MEPs, specific
assets are set aside to provide benefits for employees of each employer
when, in fact, all of the assets of a defined benefit MEP (like any
other defined benefit pension plan) are available to pay all of the
benefits of all of the participants in that MEP, regardless of where
the participants are employed.
The Department agrees that the SECURE Act's requirement to report
employer-level aggregate account balances should not apply to defined
benefit pension MEPs. The SECURE Act expressly states that the
aggregate account balances attributable to each employer in the plan is
to be determined ``as the sum of the account balances of the employees
of such employer (and the beneficiaries of such employees).'' Although
the SECURE Act amended ERISA section 103(g) to provide that it applies
to plans subject to ERISA section 210(a), and there may be a relatively
small number of defined benefit MEPs that are subject to ERISA section
210(a), in the Department's view, it would not be a reasonable reading
of the statutory text to conclude that Congress intended by the
reference to ERISA section 210(a) to mandate that aggregate account
balance information be reported by defined benefit plans that do not
maintain account balances for covered participants. Accordingly, the
final instructions for the 2021 reporting year provide that only
defined contribution MEPs must report the new SECURE Act required
employer-level aggregate account balances.
One commenter requested clarification of the requirement to report
the ``Percentage of Total Contributions for the Plan Year'' (element 3
for the 2021 non-standard attachment). Specifically, the commenter
asked whether the total of all participating employers must equal 100
percent, and whether it will cause red flags with the DOL/IRS if it
does not. They also asked whether filers should round the percentage
entry for each employer to decimal places, and if so, how many. The
Department read these commenter's questions as primarily directed at
issues that may arise when in the context of a standardized Schedule
MEP structure for reporting this information. The Agencies will take
into account such questions in designing the form and developing
appropriate instructions and edit tests. For the 2021 reporting year,
as noted above, the instructions will continue to allow filers to use a
non-standard attachment to report the required information. The
Department also notes that this is not a new reporting requirement. It
has been part of the Form 5500 since it was added in 2014 in response
to the CSEC Act addition of section 103(g) to Title I of ERISA.
Nonetheless, for the 2021 reporting year, it would be acceptable for
filers to round to the nearest whole number similar to rounding
conventions that apply to the Form 5500 financial statements and
schedules. To the extent the filer's concern is whether rounding could
result in the total reported percentage either slightly above or
slightly below 100 percent, the filer can indicate that on the non-
standard attachment as part of its filing.
A commenter asked for guidance on the asset values that should be
used for the ``Aggregate Account Balances Attributable to Participating
Employer'' (element 4 for the 2021 non-standard attachment) and, in
particular, whether the end of year net value may be used based on the
values reported on the Schedules H and I. The SECURE Act expressly
states that the aggregate account balances information should be
determined as the sum of the account balances of the employees of such
employer and the beneficiaries of such employees. In the Department's
view, an end of year valuation is an appropriate reporting requirement
as it will provide the most up to date value for the plan year covered
by the Form 5500 report. The final instructions include directions to
that effect. Further, rounding to the nearest dollar, as with the
financial reporting on other parts of the Form 5500 and schedules,
would be appropriate. The final instructions have been revised to
provide this clarification as well.\9\
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\9\ The Department understands from some comments on the
proposal that, depending on the treatment of receivables and
forfeitures by the plan, the sum of the account balances of the
employees of each employer and the beneficiaries of such employees
may not match the net asset value reported on Schedule H or I. The
Department believes that the aggregate account balance information
should be calculated and reported in accordance with the statutory
direction in the SECURE Act. Filers can add an explanatory statement
to the extent they wish to explain any difference between that sum
and other total asset values reported on the Form 5500.
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With respect to the additional ERISA section 103(g) information
regarding pooled employer plans that must be included for the 2021
reporting year, the Department had proposed that the substance of the
proposed Schedule MEP changes would apply to the 2021 reporting year
requirements except that the information could be filed as a non-
standard attachment. The Department received comments opposing or
expressing concern about some elements of the proposed Schedule MEP.
Since the Department intends to address those comments and resolve the
Schedule MEP content requirement in a later final rule, the Department
agrees that it would be premature to impose the requirements wholesale
to the 2021 Form 5500 Annual Return/Reports. Rather, for the 2021
reporting year, in addition to the participating employer information
required for all MEPs, pooled employer plans only will be required to
indicate, on a non-standard attachment, whether they are in compliance
with the Form PR registration requirements and provide the AckID number
for their latest Form PR filing.\10\
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\10\ AckID is the acknowledgement code generated by the system
in response to a completed filing for the most recent Form PR
submitted. The instructions to the Form PR advise the pooled plan
provider that it must keep, under ERISA section 107, the electronic
receipt for the Form PR filing as part of the records of the pooled
employer plans operated by the pooled plan provider.
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Some commenters complained that pooled employer plans should not be
required to provide the AckID number, claiming that this requirement
was unnecessary because the Department already has the Form PR and
issued the AckID number. Some commenters suggested that asking any
questions about the pooled plan provider was duplicative of the Form PR
and that the ``AckID'' could be found by a separate
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internet search. A few commenters also argued that pooled employer
plans should not be subject to special reporting standard and that
subjecting pooled employer plans to heightened scrutiny, when other
plans treated as single plans are not, is arbitrary and unsupported by
statute. A commenter further argued that the question regarding whether
the pooled plan provider is currently in compliance with the Form PR
(Pooled Plan Provider Registration Statement) requirements is ambiguous
and unclear, given the lack of guidance and pending agency rulemakings
(e.g., IRS' one bad apple guidance).
The Department disagrees with the commenters opposing the
collection of information regarding the Form PR. In the preamble to the
final regulation establishing the Form PR, the DOL specifically noted
that it would add new questions on the Form 5500 that would ask whether
a pooled plan provider filed its registration statement with the
Secretary, including any required updates, and to report the electronic
confirmation number provided to the pooled plan provider at the time
that the registration was received. Further, as explained in the
preamble to the proposal to add this information collection item for
pooled employer plans, the questions related to the Form PR are
intended to provide the Department, the Treasury Department, the IRS,
participating employers, and other stakeholders with information that
would allow them to connect the Form PR registration with the Form 5500
for all pooled employer plans operated by the registrant. 85 FR 72934,
72946 (Nov. 16, 2020). In fact, one commenter representing retirees and
plan participants specifically indicated its support for requesting the
``AckID'' to help workers and retirees keep track of their assets and
the plan, especially with the anticipated limited involvement of their
employer in the design of pooled employer plans. Also, as discussed
above, SECURE Act section 101(d) specifically requires the annual
report of pooled employer plans to include identifying information for
the person designated under the terms of the plan as the pooled plan
provider. Thus, the requirement is neither arbitrary nor unsupported by
the statute. The AckID requirement is also similar to the questions
currently on the Form 5500 that require multiple employer group health
plans to report about their compliance with registration and reporting
requirements on the Form M- 1 (Report for Multiple Employer Welfare
Arrangements (MEWAs) and Certain Entities Claiming Exception (ECEs)).
The Department also does not agree that the filing requirements are
ambiguous, that there is a lack of guidance regarding the filing
requirement, or that it is unfair to require pooled employer plans to
report on the registration status of their pooled plan providers.
Unlike other ERISA-covered multiple employer plans, the SECURE Act
expressly sets forth roles and responsibilities for pooled plan
providers. One of those clear requirements is that the pooled plan
provider must register with the Department and with the IRS. The Form
PR was adopted after public notice and comment to implement a specific
registration requirement added to ERISA by the SECURE Act. The Form PR
also includes instructions for completing the form, which also were
developed as part of the notice and comment rulemaking process. The
Form 5500 is signed by the plan administrator stating that the
administrator has reviewed the filing and that ``to the best of my
knowledge and belief, it is true, correct, and complete.'' In the case
of a pooled employer plan, the pooled plan provider is the
administrator. Pooled plan providers should be able to say whether they
believe the Form PR filing requirements have been met. In the
Department's view, it does not impose any meaningful burden on the
pooled plan provider acting as the plan administrator to acknowledge on
the plan's Form 5500 annual report that it believes to the best of the
pooled plan provider's knowledge and belief that it has fulfilled its
statutory registration obligation. Further, the DOL continues to
believe that linking the Form PR filed by a pooled plan provider to the
Forms 5500 is a reasonable method to help make sure that workers,
retirees, and the agencies charged with oversight have the information
they need to be sure that the Form PR information is consistent and up
to date. For example, having the AckID number on the plan's Form 5500
will assist plan participants and participating employers in finding
the relevant Form PR on the Department's website. The requirement to
report Form PR compliance information on the Form 5500 will also help
the Department ensure compliance with those registration requirements.
While there is no explicit civil penalty for failing to file a Form PR,
there is a civil penalty for failing to file a complete and accurate
Form 5500. See ERISA section 502(c)(2); 29 CFR 2560.502(c)(2) and the
Federal Civil Penalties Inflation Adjustment Act of 1990.
Finally, with respect to the requirement that multiple employer
welfare plans file the participating employer information as a non-
standard attachment to the 2021 Form 5500 Annual Return/Report, one
commenter representing retirees and plan participants specifically
indicated its support for continuing to require multiple employer
welfare plans to provide participating employer information. Two
commenters argued to the contrary that the DOL could no longer ask
multiple employer welfare plans to report any participating employer
information because Congress, by amending ERISA section 103(g) to add a
reference to plans subject to ERISA section 210(a), was explicitly
saying that welfare plans should no longer report such information. One
of the commenters noted that DOL had cited ERISA section 103(c)(2) as
separate authority for DOL to require welfare plans to report such
information, but argued that section 103(c)(2) was not applicable
because the DOL is not establishing this reporting requirement to
obtain ``the name and address of each fiduciary'' but rather to
reinstate a reporting requirement that was repealed by the SECURE Act.
Although the DOL agrees that ERISA section 103(g) technically is
not applicable to welfare plans as a result of the SECURE Act
amendment, the DOL does not agree the SECURE Act amendment precludes
its continued collection of participating employer information on the
Form 5500 from multiple employer welfare plans.\11\ Rather, DOL
continues to believes that the addition of the reference to ERISA
section 210(a) was meant to emphasize that defined contribution MEPs,
including association retirement plans, professional employer
organization plans (PEOs), and the newly created pooled employer plan,
are required to comply with the participating employer reporting
requirements. The DOL does not believe that the amendment was intended
to preclude the Department from relying on other annual reporting
authorities to collect participating employer information about
multiple employer welfare arrangements (MEWAs). In the DOL's view,
receiving participating employer information from MEWAs, including
multiple employer welfare plans, is important for oversight
[[Page 73980]]
of such arrangements by the Department and monitoring such arrangements
by employers and plan participants and beneficiaries. This transparency
about participating employers is supported by congressional findings in
ERISA section 2 (Congressional Findings and Declaration of Policy),
which provides, in relevant part, that ``[i]t is hereby declared to be
in the policy of this Act to protect interstate commerce and the
interests of participants in employee benefit plans and their
beneficiaries, by requiring the disclosure and reporting to
participants and beneficiaries of financial and other information with
respect thereto. . . .'' In addition, the Committee Report on ERISA
provided that ``[t]he Subcommittee intended that Congress provide for
greater legislative protection for beneficiaries of pension plans
through detailed public disclosure of the administration and operation
of private pension plans.'' S. Rep. 93-127 (Apr. 18, 1973).
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\11\ This final rule does not address comments on the proposal
in the NPFR to move the participating employer questions to the Form
M-1 for MEWA plans and arrangements that provide medical benefits.
As noted above, the proposals relating to changes for the 2022
reporting year will be addressed in a later, separate Federal
Register notice.
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DOL is also continuing to rely on ERISA section 103(c)(2) and its
general regulatory authority under ERISA section 505 as authority for
requiring multiple employer welfare plans to continue reporting the
participating employer information for the 2021 plan year filing.\12\
As discussed in the NPFR, in the DOL's view, each participating
employer is acting as a fiduciary with respect to its decision to join
the MEWA and provide ERISA-covered benefits through a MEWA, and has
ongoing fiduciary obligations to monitor the plan and confirm that
continued participation in the plan is prudent and in the best
interests of its employees who are covered participants in the
plan.\13\ Nothing in ERISA section 103(c)(2) precludes the Department
from relying on that authority to collect information about a
particular class or group of fiduciaries as opposed to requiring the
identification of all plan fiduciaries in general. See also ERISA
section 104(a)(3) (authority to exempt welfare benefit plans from all
or part of Title I reporting and disclosure requirements). With respect
to its general regulatory authority under ERISA section 505, the
Department explained in the preamble to the proposal that the
participating employer information has proven useful to the DOL for its
oversight functions for both MEPs and those MEWAs that file the Form
5500, regardless of the types of benefits provided by the MEWA. 86 FR
at 51498. This reporting requirement is also relevant to the
Department's enforcement of the criminal penalties added by the
Affordable Care Act under ERISA section 519 for any person who
knowingly submits false statements or false representations of fact in
connection with a MEWA's financial condition (including a plan MEWA),
the benefits it provides, or its regulatory status as a MEWA. In light
of the fact that participating employers in a MEWA would likely be the
recipients of such false statements or representations, having data
regarding the participating employers in a MEWA plan would be useful in
policing whether such false statements or representations are being
made to participating employers.
---------------------------------------------------------------------------
\12\ ERISA section 103(c)(2) states that the administrator shall
furnish as a part of a plan's annual report ``(2) The name and
address of each fiduciary.'' ERISA section 505 provides the
Department with general authority, subject to certain limits not
relevant here, to ``prescribe such regulations as he finds necessary
or appropriate to carry out the provisions of this subchapter.''
\13\ See also Advisory Opinion 2007-06A (Aug. 16, 2007)
(``decisions regarding the method through which benefits are to be
paid under an employee welfare benefit plan, including the selection
of an insurer and the negotiation of the terms of any contractual
arrangement obligating the plan, are matters that generally are
subject to the fiduciary responsibility provisions of Title I of
ERISA''.); Information Letter to Diana Ceresi (Feb. 2, 1998) (``when
the selection of a health care provider involves the disposition of
employee benefit plan assets, such selection is an exercise of
authority or control with respect to the management and disposition
of the plan's assets within the meaning of section 3(21) of ERISA,
and thus constitutes a fiduciary act . . .''); Advisory Opinion
2018-01A (Nov. 5, 2018) (In the context of a pension plan rollover
service provider, not covered by Title 1 of ERISA, ``When plan
sponsors or other responsible fiduciaries choose to have a plan
participate in the RCH Program, they are acting in a fiduciary
capacity, and would be subject to the general fiduciary standards
and prohibited transaction provisions of ERISA in selecting and
monitoring the RCH Program.'')
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Two commenters argued that reporting of employer names and EINs
(and the health plan to which they are linked) on a publicly available
document exposes plan participants and beneficiaries and their
employers to potential cybersecurity fraud. They also argued that the
list of participating employers and contribution percentage information
is proprietary information and contended that making the information
publicly available would negatively impact businesses and their
employees. The commenters did not offer empirical evidence or other
data to support their assertions about consequences to plan
participants and beneficiaries or the participating employers'
businesses. This reporting requirement has been in place since the 2014
plan year and the Department is not aware of any such consequences
resulting from the disclosure requirement. In fact, the more powerful
argument here is likely that employers have the freedom to choose to
change plans or plan service providers, are undoubtedly receiving
marketing solicitations about these matters now, and that transparency
about which employers participate in a plan MEWA may well generate
competitive pressures to offer better services at lower fees.
The DOL also has addressed similar arguments on several prior
occasions in the context of the ERISA section 103(g) requirement for
multiple employer plans to include participating employer information
as part of the Form 5500 Annual Return/Report. For example, in a 2019
Field Assistance Bulletin, the DOL noted that it had received and
considered similar objections in connection with the Paperwork
Reduction Act (PRA) notice associated with the publication of the
interim final rule on ERISA section 103(g) that implemented the CSEC
Act requirement. See Proposed Extension of Information Collection
Request Submitted for Public Comment; Revisions to Annual Return/
Report--Multiple-Employer Plans, 79 FR 66741 (Nov. 10, 2014) (available
at <a href="http://www.govinfo.gov/content/pkg/FR-2014-11-10/pdf/2014-26499.pdf">www.govinfo.gov/content/pkg/FR-2014-11-10/pdf/2014-26499.pdf</a>). The
DOL also pointed out, in its 2016 Federal Register notice regarding
proposed modernization of the Form 5500, that DOL addressed this issue
when it explained its decision at that time not to propose changes to
the ERISA section 103(g) reporting requirements. See Form 5500
Improvement and Modernization Proposal--Proposed Revision of Annual
Information Return/Reports, 81 FR 47534, 47564-47565 (July 21, 2016)
(available at <a href="http://www.govinfo.gov/content/pkg/FR-2016-07-21/pdf/2016-14893.pdf">www.govinfo.gov/content/pkg/FR-2016-07-21/pdf/2016-14893.pdf</a>). In the SECURE Act itself Congress reaffirmed and in fact
expanded the requirements for reporting participating employer
information on the Form 5500. The Department does not believe that a
different conclusion regarding these arguments is warranted just
because they are now being presented separately for welfare plans.
Although, as noted above, after the SECURE Act amendment the specific
reporting requirement in ERISA section 103(g) technically is not
applicable to welfare plans, the Department does not view the SECURE
Act amendment as an acknowledgement that the cybersecurity and
confidential information arguments being pressed by these commenters
somehow now has merit with respect to just welfare plans
notwithstanding the fact that multiple employer welfare plans have been
required to file the participating employer information since the 2014
reporting year. The Department also continues to be of the
[[Page 73981]]
view that an employer's sponsorship or participation in an ERISA-
covered plan is not confidential information.\14\ Employers that
sponsor single employer plans are identified on the plan's Form 5500,
and we do not see the identity of a sponsoring employer in a multiple
employer plan as somehow different for annual reporting and disclosure
purposes. Similarly, the purported cybersecurity issues noted by the
comments (e.g., ``spoofing'' of either the MEWA itself, or the MEWA's
health insurer, in order to generate a phishing attack) are not
different for an employer (including small employers) identified on a
single-employer Form 5500 compared to a participating employer
identified on a multiple employer Form 5500. In the Department's view,
Form 5500 reporting of participating employer information is just as
important for multiple employer welfare plans as retirement plans
because it provides important information for oversight of such
arrangements by the Department and monitoring such arrangements by
employers and plan participants and beneficiaries. Accordingly,
multiple employer welfare plans will continue to be required to file
the participating employer information as a non-standard attachment to
the 2021 Form 5500 Annual Return/Report, as they have been required to
do since the 2014 plan year filing.
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\14\ Prior guidance issued by the Department has generally
rejected allegations of possible harm due to disclosure of reporting
information in favor of the policy reasons in favor of public
disclosure. See, e.g., Aug. 14, 1994, letter to David Mintz (noting
ERISA policy of public disclosure and rejecting concerns raised that
the Form 5500 series is available to organizations that compile and
sell to the public a directory of employee benefit plan
information); April 7, 1978, letter to Congressman Harley O.
Staggers (concluding nothing in section 110 supported changing the
requirement, in response to claims that because personal financial
information possibly could be calculated from 103(b)(3)(B)
requirement for plans to include in their annual report a statement
of receipts and disbursements during the preceding twelve-month
period aggregated by general sources and applications, and thus
should be treated as confidential information); July 23, 1981,
letter to Mr. T.C. Heyward, Jr. (contested information did not fit
within 106(b) exception from public disclosure and nothing in
section 110 warranted omission from the annual report required
information on distribution of benefits and payments directly to
participants or their beneficiaries and total annual contribution of
the sponsoring organization on the grounds that the information
constitutes an invasion of privacy).
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III. Regulatory Impact Analysis
1. Executive Order 12866
This Final Rule does not constitute a ``significant regulatory
action'' for purposes of Executive Order 12866. The changes are minor
additions to existing reporting requirements that in large part merely
adopt requirements set forth in statutory amendments to the annual
reporting requirements that apply under ERISA and the Code. Therefore,
this action has not been reviewed by OMB pursuant to the Executive
Order. Pursuant to the Congressional Review Act, OMB has determined
that this final rule is not a ``major rule,'' as defined by 5 U.S.C.
804(2).
2. Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (PRA 95) (44
U.S.C. 3506(c)(2)(A)), the Department solicited comments concerning the
information collection request (ICR) included in the revision of the
Form 5500 Annual Return/Report. At the same time, the Department also
submitted an information collection request (ICR) to the Office of
Management and Budget (OMB), in accordance with 44 U.S.C. 3507(d).
The Department did not received comments that specifically
addressed the paperwork burden analysis of the information collection
requirement contained in the proposed rule.
In connection with publication of this final rule, the Department
is submitting an ICR to OMB requesting a revision of the collection of
information under OMB Control Number 1210-0110 reflecting the
instruction changes being finalized in this document. The Department
will notify the public when OMB approves the ICR.
A copy of the ICR may be obtained by contacting the PRA addressee
shown below or at <a href="http://www.RegInfo.gov">www.RegInfo.gov</a>. PRA ADDRESSEE: Address requests for
copies of the ICRs to James Butikofer, Office of Research and Analysis,
U.S. Department of Labor, Employee Benefits Security Administration,
200 Constitution Avenue NW, Room N-5655, Washington, DC 20210.
Telephone: (202) 693-8410; Fax: (202) 219-4745; Email:
<a href="/cdn-cgi/l/email-protection#c9acabbaa8e7a6b9bb89ada6a5e7aea6bf"><span class="__cf_email__" data-cfemail="caafa8b9abe4a5bab88aaea5a6e4ada5bc">[email protected]</span></a>. These are not toll-free numbers. ICRs submitted to
OMB also are available at <a href="http://www.RegInfo.gov">http://www.RegInfo.gov</a>.
The burden analysis is based on data from the 2019 Form 5500
filings (the latest year for which complete data are available). The
burden analysis includes the burden of the current information
collection and adjusts it for changes made by the final rule.
Burden estimates take into account the changes in plan counts due
to the creation of pooled employer plans, with an increase in multiple-
employer plans and a small decrease in single employer plans,
reflecting some single employer plans moving to pooled employer plans.
The agencies estimated that there are 4,538 defined contribution
multiple-employer pension plans and that 75 pooled employer plans will
be formed.
Reporting the information about participating employers required by
the changes being finalized in this document should not be burdensome
for defined contribution multiple-employer plan administrators as
current requirements under ERISA already require them to maintain a
list of participating employers and records of the contributions made
by each employer. Although likely an overestimate of the actual time
required, to ensure that we are not underestimating the potential
burden, the Department is using an estimate of on average 30 minutes to
comply with the new question for defined contribution MEPs regarding
aggregate account balances on the currently required attachment to the
Form 5500 Annual Return/Report containing the list of participating
employers, their EINs, and their percentage of total plan
contributions. The Department estimates that the anticipated 75 pooled
employer plans would take an additional five minutes to indicate
whether they are in compliance with the Form PR registration
requirements and provide the AckID number for their latest Form PR
filing.
The Agencies' burden estimation methodology excludes certain
activities from the calculation of ``burden.'' If the activity is
performed for any reason other than compliance with the applicable
federal tax administration system or the Title I annual reporting
requirements, it was not counted as part of the paperwork burden. For
example, most businesses or financial entities maintain, in the
ordinary course of business, detailed accounts of assets and
liabilities, and income and expenses for the purposes of operating the
business or entity. These recordkeeping activities were not included in
the calculation of burden because prudent business or financial
entities normally have that information available for reasons other
than federal tax or Title I annual reporting. Only time for gathering
and processing information associated with the tax return/annual
reporting systems, and learning about the law, was included. In
addition, an activity is counted as a burden only once if performed for
both tax and Title I purposes. The Agencies also have designed the
instruction package for the Form 5500 Annual Return/Report so that
filers generally will be able to complete the Form 5500 Annual Return/
Report by reading the instructions without needing to refer to the
statutes or regulations. The Agencies, therefore, have considered in
their PRA
[[Page 73982]]
calculations the burden of reading the instructions and find there is
no recordkeeping burden attributable to the Form 5500 Annual Return/
Report.
This PRA calculation does not include any burden related to Form M-
1 changes related to reporting of participating employer information by
plans and non-plan MEWAs that are required to file the Form M-1 because
those changes are not included in this document. Rather, for the 2021
Form 5500 reporting year, plan MEWAs, including those that offer or
provide coverage for medical care, will continue to be required to
provide participating employer information as a nonstandard attachment
to the 2021 Form 5500 Annual Return/Report in substantially the same
manner as has been required since the 2014 forms.
Note that to reflect OMB's preference that burden incurred by
service providers be reported as hour burden instead of cost burden,
burden that has historically been included as cost burden has been
included here as hour burden. This change led to an increase in
reported hour burden and an offsetting decrease in cost burden.
A summary of paperwork burden estimates follows. As noted above,
these estimates include the burden of the overall Form 5500 information
collection and makes adjustments for the final instructions revisions
included in this document.
Type of Review: Revision of existing collection.
Title: Annual Information Return/Report of Employee Benefit Plan.
Affected Public: Individuals or households; Private Sector--
Business or other for-profit; Not-for-profit institutions.
Forms: Form 5500 and Schedules.
Total Respondents: 840,923.
Total Responses: 840,923.
Frequency of Response: Annually.
Estimated Total Burden Hours: 3,031,649.
Estimated Total Annualized Costs: $0.
The aggregate hour burden for the Form 5500 Annual Return/Report
(including schedules and short form) is estimated to be 4.5 million
hours annually shared between the DOL, IRS, and the PBGC. The hour
burden reflects filing activities carried out directly by filers.
Presented below is a chart showing the total hour and cost burden
of the revised Form 5500 Annual Return/Report allocated to the DOL,
including the changes to the DOL burden by these 2021 SECURE Act
revisions.
------------------------------------------------------------------------
------------------------------------------------------------------------
DOL hours
------------------------------------------------------------------------
Pension........................... Large Plans......... 895,570
Small Plans......... 931,031
Welfare........................... Large Plans......... 1,064,998
Small Plans......... 64,616
Total......................... Large Plans......... 1,960,568
Small Plans......... 995,647
------------------------------------------------------------------------
DFEs................................................ 70,103
January 2013 Revision............................... 646
2014 CSEC Revision.................................. 2,371
2021 SECURE Act Revision............................ 2,313
-------------------------------------
Total........................................... 3,031,649
------------------------------------------------------------------------
3. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) \15\ 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 \16\ and are likely to have a significant economic impact
on a substantial number of small entities. Unless the head of an agency
certifies that a final rule is not likely to have a significant
economic impact on a substantial number of small entities, section 604
of the RFA requires the agency to present a final regulatory
flexibility analysis of the final rule.\17\
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\15\ 5 U.S.C. 601 et seq. (1980).
\16\ 5 U.S.C. 551 et seq. (1946).
\17\ 5 U.S.C. 604 (1980).
---------------------------------------------------------------------------
The Department prepared an Initial Regulatory Flexibility Analysis
at the proposed rule stage. However, this final rule is focused only on
a subset of the requirements proposed. The Department certifies that
this final rule will not have a significant impact on a substantial
number of small entities. Therefore, the Department has not prepared a
Final Regulatory Flexibility Analysis.
4. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 requires each
federal agency to prepare a written statement assessing the effects of
any federal mandate in a proposed or final agency rule that may result
in an expenditure of $100 million or more (adjusted annually for
inflation with the base year 1995) in any one year by State, local, and
tribal governments, in the aggregate, or by the private sector.\18\ For
purposes of the Unfunded Mandates Reform Act, as well as Executive
Order 12875,\19\ this final rule does not include any federal mandate
that the DOL expects would result in such expenditures by State, local,
or tribal governments, or the private sector.
---------------------------------------------------------------------------
\18\ 2 U.S.C. 1501 et seq. (1995).
\19\ Enhancing the Intergovernmental Partnership, 58 FR 58093
(Oct. 28, 1993).
---------------------------------------------------------------------------
5. 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.\20\ Federal agencies promulgating regulations that have
federalism implications must consult with State and local officials and
describe the extent of their consultation and the nature of the
concerns of State and local officials in the preamble to the final
rule.
---------------------------------------------------------------------------
\20\ Federalism, supra note 6.
---------------------------------------------------------------------------
In the DOL's view, this final rule would not have federalism
implications because they would not have direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of
[[Page 73983]]
power and responsibilities among various levels of government. This
final rule does not have federalism implications because they would
have 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 these rules
do not alter the fundamental provisions of the statute with respect to
employee benefit plans, and as such would have no implications for the
States or the relationship or distribution of power between the
national government and the States.
IV. Final Revisions to the Form 5500 and Form 5500-SF Instructions for
the 2021 Reporting Year
To implement the SECURE Act section 101 changes, the current
instructions including the graphic, in the Form 5500 and Form 5500-SF
instructions, as applicable, for Part I, Line A ``Box for Multiple
Employer Plan'' and graphic entitled ``Multiple-Employer Plan
Participating Employer Information,'' are replaced with instructions
below and two separate graphics. The second graphic, which will appear
only in the Form 5500 instructions shows information pooled employer
plans must provide in addition to the participating employer
information. It may be attached as part of the ``Multiple-Employer Plan
Participating Employer Information'' attachment or as a separate
attachment entitled ``Pooled Employer Plan Information.''
Line A--Box for Multiple-Employer Plan. Check this box if the [Form
5500 or Form 5500-SF] is being filed for a multiple-employer plan. A
multiple-employer plan is a plan that is maintained by more than one
employer and is not one of the plans already described. A multiple-
employer plan can be collectively bargained and collectively funded,
but if covered by PBGC termination insurance, must have properly
elected before September 27, 1981, not to be treated as a multiemployer
plan under Code section 414(f)(5) or ERISA sections 3(37)(E) and
4001(a)(3), and have not revoked that election or made an election to
be treated as a multiemployer plan under Code section 414(f)(6) or
ERISA section 3(37)(G). A single [Insert either Form 5500 or Form 5500-
SF] Annual Return/Report is filed for the multiple-employer plan;
participating employers do not file individually for this type of plan.
[Following sentence is for Form 5500 Instructions only] A pooled
employer plan as defined in ERISA section 3(44) operated by a ``pooled
plan provider'' that meets the definition under ERISA section 3(43) is
a multiple-employer plan.\21\
---------------------------------------------------------------------------
\21\ Pooled employer plans are not eligible to file the Form
5500-SF so the instructions describing the pooled employer plan's
status as a MEP are not being added to the Form 5500-SF
instructions.
---------------------------------------------------------------------------
Note. Do not check this box if all of the employers maintaining the
plan are members of the same controlled group or affiliated service
group under Code sections 414(b), (c), or (m).
Participating Employer Information. [Insert for Form 5500 ``Except
as provided below, multiple-employer pension plans and multiple-
employer welfare plans required to file a Form 5500'' or Insert for
Form 5500-SF ``Eligible multiple-employer pension plans that file a
Form 5500-SF''] must include an attachment using the format below. The
attachment must be properly identified at the top with the label
``Multiple-Employer Plan Participating Employer Information,'' and the
name of the plan, EIN, and plan number (PN) as found on the plan's
[Insert Form 5500 or Form 5500-SF]. Complete as many entries as needed
to report the required information for all participating employers in
the plan.
<bullet> All multiple-employer pension plans must complete elements
1-3 of the ``Multiple-Employer Plan Participating Employer
Information'' attachment. For element 3, enter a good faith estimate of
each employer's percentage of the total contributions (including
employer and participant contributions) made by all participating
employers during the year. The percentage may be rounded to be nearest
whole percentage. To the extent the rounding results in the total
reported percentage being either slightly above or slightly below 100
percent, the filer can indicate that on the attachment. Any employer
who was obligated to make contributions to the plan for the plan year,
made contributions to the plan for the plan year, or whose employees
were covered under the plan is a ``participating employer'' for this
purpose. If a participating employer made no contributions, enter ``-0-
'' in element 3.
<bullet> Multiple-employer pension plans that are defined
contribution plans must also complete element 4 of the ``Multiple-
Employer Plan Participating Employer Information'' attachment to report
the aggregate account balances for each participating employer
determined as the sum of the account balances of the employees of such
employer (and the beneficiaries of such employees). For element 4, the
aggregate account balance attributable to each employer is the sum of
the account balances of the employees of such employer and their
beneficiaries at the end of the year. Consistent with the information
on the schedules of assets for the plan as a whole, use the end of year
valuation to calculate the amount of assets by employer. The amounts
can be rounded to the nearest dollar, consistent with other asset
reporting on the forms and schedules.
<bullet> [For Form 5500 Instructions Only] Multiple-employer
welfare plans that are unfunded, fully insured, or a combination of
unfunded/insured and exempt under 29 CFR 2520.104-44 from the
obligation to file financial statements with their annual report are
required to complete elements 1 and 2 only of the ``Multiple-Employer
Plan Participating Employer Information'' attachment.\22\
---------------------------------------------------------------------------
\22\ This paragraph only applies to multiple employer welfare
plans that file the Form 5500, and thus is not needed in the Form
5500-SF instructions.
---------------------------------------------------------------------------
<bullet> [For Form 5500 Instructions Only] Multiple-employer
pension plans that are pooled employer plans must also complete the
``Pooled Employer Plan Information'' attachment. The attachment may be
attached as part of the ``Multiple-Employer Plan Participating Employer
Information'' attachment or as a separate attachment entitled ``Pooled
Employer Plan Information.'' For element 1b, AckID is the
acknowledgement code generated by the system in response to a completed
Form PR submitted. The instructions to the Form PR advise the pooled
plan provider that it must keep, under ERISA section 107, the
electronic receipt for the Form PR filing as part of the records of the
pooled employer plans operated by the pooled plan provider.\23\
---------------------------------------------------------------------------
\23\ As noted above, because pooled employer plans are not
eligible to file the Form 5500-SF, this language describing the
pooled employer plan attachment is only being added to the Form 5500
instructions.
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[[Page 73984]]
[GRAPHIC] [TIFF OMITTED] TR29DE21.000
The following revisions are being made to the Form 5500-SF
instructions:
<bullet> In the first paragraph of the ``General Instruction''
section, add a seventh bulleted paragraph that reads ``Not be a pooled
employer plan. See ERISA section 3(43).''
<bullet> In the ``General Instruction'' section, under the heading
``Who May File Form 5500-SF,'' add a new paragraph number 7 before the
Note that reads: ``7. The plan is not a pooled employer plan. See ERISA
section 3(43).''
<bullet> In the ``Specific Line-By-Line Instructions (Form 5500-
SF)'' in instructions for Part II, Line 6, add a new paragraph number 7
that reads: ``7. The plan is not a pooled employer plan. See ERISA
section 3(43).''
Statutory Authority
Accordingly, pursuant to the authority in sections 101, 103, 104,
109, 110, the Form 5500 Annual Return/Report and the Form 5500-SF Short
Form Annual Return/Report are amended as set forth herein.
Signed at Washington, DC, this 17th day of December, 2021.
Ali Khawar,
Acting Assistant Secretary, Employee Benefits Security Administration,
U.S. Department of Labor.
[FR Doc. 2021-27764 Filed 12-28-21; 8:45 am]
BILLING CODE 4510-29-C
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.