Office of Regulatiosn and Interpretations,
Employee Benefit Security Administration
Room N-5655
U.S. Department of Labor
200 Constitution Avenue NW
Washington, DC 20201
Re: Registration Requirements for Pooled Plan Providers, RIN 1210-AB94
Furthermore, the DOL also states that with respect to the compliance officer’s contact information, this requirement “gives the Department and others with compliance concerns a means of contacting a responsible person at the registrant. The business telephone number requirement is focused mainly on including in the public Form PR data that the Department will post on its website a way for interested /participating employers and covered employees to contact the pooled plan provider for information.”2
We understand the need for the DOL to have the contact information for the primary compliance officer. However, we do not believe that interested employers or covered employees would have the need to contact the compliance officer directly. Furthermore, once an employer becomes a participating employer, it will be given access to the appropriate contacts at the pooled plan provider. With respect to participant concerns, a summary plan description must include the contact information for the plan administrator, which is sufficient to address any such concerns. 3 As such, although the DOL may need this information at some point, we do not believe it is necessary to include on a public document.
3. Clause 2510.3-44(b)(1)(x): Statement of Ongoing Criminal, Civil or Administrative Proceedings
This provision requires that the pooled plan provider include a statement disclosing “any ongoing criminal, civil, or administrative proceedings related to the provisions of services to, operation of, or investments of any employee benefit plan, in any court or administrative tribunal by the federal or state government or other regulatory authority against the pooled plan provider, or any officer, director, or employee of the pooled plan provider.” The term “administrative proceedings” is very broad, and it could include items such as routine DOL or Internal Revenue Service audits or investigations or mere inquiries from those or other state or federal agencies. We request that the DOL limit or define what types of administrative proceedings should be included, and, at the very least, exclude routine audits or investigations or mere inquiries.
In the preamble, the DOL asked if this provision should be expanded to include settlements with the DOL or PBGC. Because a settlement is not the admission of wrongdoing, such information need not be disclosed.
4. Subparagraph 2510.3-44(b)(2): Initiation of Operations
Under this paragraph, a pooled plan provider is required to file a supplemental report with the DOL after the initiation of operations of a plan as a pooled employer plan containing the name, EIN for the plan and the name, address, and EIN for the plan trustee. However, the proposed regulation does not define initiation of operations. For simplicity, the DOL could require this supplemental filing at the time of the enrollment of the first participant in the plan.
5. 2510.3-44(b)(3)(ii) Supplemental Filings: Significant Change in Corporate or Business Structure
Within 30 days of certain reportable events, a pooled plan provider must provide supplemental information to the DOL. One event is any significant change in corporate structure of the pooled plan provider or an affiliate. We suggest clarifying that a change to the corporate structure of an affiliate is not “significant” for purposes of this rule unless the affiliate provides services to the pooled employer plan.
6. 2510.3-44(b)(3)(iii): Receipt of Written Notice of Initiation of Any Administrative or Enforcement Action
Under this clause, a pooled plan provider must report receipt of a written notice of the initiation of any administrative or enforcement action in any court or administrative tribunal by any federal or state government agency or other regulatory authority against the pooled plan provider or any officer, director, or employee of the pooled plan provider. Similar to our comment above with respect to administrative proceedings, we request that the DOL exclude routine audits or investigations or mere inquiries from this requirement.
Conclusion
We thank you for your consideration of these comments, and we look forward to working with you on the implementation of the pooled employer plan provisions of the SECURE Act.
Sincerely,
Chantel L. Sheaks
Executive Director, Retirement Policy
