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Federal Register / Vol. 86, No. 247 / Wednesday, December 29, 2021 / Rules and Regulations
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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 it 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 the 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. 93127
Apr. 18, 1973.
DOL is also continuing to rely on ERISA section 103c2 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 DOLs 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 12 ERISA section 103c2 states that the administrator shall furnish as a part of a plans 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 200706A 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 plans assets within the meaning of section 321 of ERISA, and thus constitutes a fiduciary act . . .; Advisory Opinion 201801A
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
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103c2 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 104a3 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 Departments 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 MEWAs 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.
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 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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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 103g 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 103g 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 www.govinfo.gov/content/pkg/FR-201411-10/pdf/2014-26499.pdf. 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 103g reporting requirements. See Form 5500 Improvement and Modernization ProposalProposed Revision of Annual Information Return/Reports, 81 FR
47534, 4756447565 July 21, 2016
available at www.govinfo.gov/content/
pkg/FR-2016-07-21/pdf/201614893.pdf. 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 103g 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
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