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Federal Register / Vol. 86, No. 247 / Wednesday, December 29, 2021 / Rules and Regulations view that an employers sponsorship or participation in an ERISA-covered plan is not confidential information.14
Employers that sponsor single employer plans are identified on the plans 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 MEWAs 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 Departments 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.
III. Regulatory Impact Analysis
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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 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 103b3B 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 106b 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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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. 8042.
2. Paperwork Reduction Act In accordance with the Paperwork Reduction Act of 1995 PRA 95 44
U.S.C. 3506c2A, 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. 3507d.
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 12100110
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 www.RegInfo.gov. 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 6938410; Fax: 202
2194745; Email: ebsa.opr@dol.gov.
These are not toll-free numbers. ICRs submitted to OMB also are available at http www.RegInfo.gov.
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-

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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

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