cfr_sections
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114 rows where part_number = 2570 and title_number = 29 sorted by section_id
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| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
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| 29:29:9.1.2.7.8.1.1.1 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | A | Subpart A—Procedures for the Assessment of Civil Sanctions Under ERISA Section 502(i) | § 2570.1 Scope of rules. | PBGC | The rules of practice set forth in this part are applicable to “prohibited transaction penalty proceedings” (as defined in § 2570.2(o) of this part) under section 502(i) of the Employee Retirement Income Security Act of 1974. The rules of procedure for administrative hearings published by the Department's Office of Administrative Law Judges at part 18 of this title will apply to matters arising under ERISA section 502(i) except as modified by this section. These proceedings shall be conducted as expeditiously as possible, and the parties shall make every effort to avoid delay at each stage of the proceedings. | ||||
| 29:29:9.1.2.7.8.1.1.10 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | A | Subpart A—Procedures for the Assessment of Civil Sanctions Under ERISA Section 502(i) | § 2570.10 Review by the Secretary. | PBGC | (a) The Secretary may review a decision of an administrative law judge. Such a review may occur only when a party files a notice of appeal from a decision of an administrative law judge within twenty (20) days of the issuance of such decision. In all other cases, the decision of the administrative law judge shall become final agency action within the meaning of 5 U.S.C. 704. (b) A notice of appeal to the Secretary shall state with specificity the issue(s) in the decision of the administrative law judge on which the party is seeking review. Such notice of appeal must be served on all parties of record. (c) Upon receipt of a notice of appeal, the Secretary shall request the Chief Administrative Law Judge to submit to him a copy of the entire record before the administrative law judge. | ||||
| 29:29:9.1.2.7.8.1.1.11 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | A | Subpart A—Procedures for the Assessment of Civil Sanctions Under ERISA Section 502(i) | § 2570.11 Scope of review. | PBGC | The review of the Secretary shall not be a de novo proceeding but rather a review of the record established before the administrative law judge. There shall be no opportunity for oral argument. | ||||
| 29:29:9.1.2.7.8.1.1.12 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | A | Subpart A—Procedures for the Assessment of Civil Sanctions Under ERISA Section 502(i) | § 2570.12 Procedures for review by the Secretary. | PBGC | (a) Upon receipt of a notice of appeal, the Secretary shall establish a briefing schedule which shall be served on all parties of record. Upon motion of one or more of the parties, the Secretary may, in his discretion, permit the submission of reply briefs. (b) The Secretary shall issue a decision as promptly as possible after receipt of the briefs of the parties. The Secretary may affirm, modify, or set aside, in whole or in part, the decision on appeal and shall issue a statement of reasons and bases for the action(s) taken. Such decision by the Secretary shall be final agency action within the meaning of 5 U.S.C. 704. | ||||
| 29:29:9.1.2.7.8.1.1.2 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | A | Subpart A—Procedures for the Assessment of Civil Sanctions Under ERISA Section 502(i) | § 2570.2 Definitions. | PBGC | For prohibited transaction penalty proceedings, this section shall apply in lieu of the definitions in § 18.2 of this title: (a) Adjudicatory proceeding means a judicial-type proceeding leading to the formulation of a final order; (b) Administrative law judge means an administrative law judge appointed pursuant to the provisions of 5 U.S.C. 3105; (c) Answer is defined for these proceedings as set forth in § 18.5(d)(2) of this title; (d) Commencement of proceeding is the filing of an answer by the respondent; (e) Consent agreement means any written document containing a specified proposed remedy or other relief acceptable to the Department and consenting parties; (f) ERISA means the Employee Retirement Income Security Act of 1974, as amended; (g) Final order means the final decision or action of the Department of Labor concerning the assessment of a civil sanction under ERISA section 502(i) against a particular party. Such final order may result from a decision of an administrative law judge or the Secretary, or the failure of a party to invoke the procedures for hearings or appeals under this title. Such a final order shall constitute final agency action within the meaning of 5 U.S.C. 704; (h) Hearing means that part of a proceeding which involves the submission of evidence, either by oral presentation or written submission, to the administrative law judge; (i) Notice means any document, however designated, issued by the Department of Labor which initiates an adjudicatory proceeding under ERISA section 502(i); (j) Order means the whole or any part of a final procedural or substantive disposition of a matter under ERISA section 502(i); (k) Party includes a person or agency named or admitted as a party to a proceeding; (l) Person includes an individual, partnership, corporation, employee benefit plan, association, exchange or other entity or organization; (m) Petition means a written request, made by a person or party, for some affirmative action; (n) Pleading means the not… | ||||
| 29:29:9.1.2.7.8.1.1.3 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | A | Subpart A—Procedures for the Assessment of Civil Sanctions Under ERISA Section 502(i) | § 2570.3 Service: Copies of documents and pleadings. | PBGC | [53 FR 37476, Sept. 26, 1988, as amended at 65 FR 7191, Feb. 11, 2000; 68 FR 17508, Apr. 9, 2003] | For prohibited transaction penalty proceedings, this section shall apply in lieu of § 18.3 of this title. (a) General. Copies of all documents shall be served on all parties of record. All documents should clearly designate the docket number, if any, and short title of all matters. All documents shall be delivered or mailed to the Chief Docket Clerk, Office of Administrative Law Judges, 800 K Street, NW., Suite 400, Washington, DC 20001-8002, or to the OALJ regional Office to which the proceedings may have been transferred for hearing. Each document filed shall be clear and legible. (b) By parties. All motions, petitions, pleadings, briefs or other documents shall be filed with the Office of Administrative Law Judges with a copy including any attachments to all other parties of record. When a party is represented by an attorney, service shall be made upon the attorney. Service of any document upon any party may be made by personal delivery or by mailing a copy to the last known address. The Department shall be served by delivery to the Associate Solicitor, Plan Benefits Security Division, ERISA Section 502(i) Proceeding, P.O. Box 1914, Washington, DC 20013. The person serving the document shall certify to the manner and date of service. (c) By the Office of Administrative Law Judges. Service of orders, decisions and all other documents, except notices, shall be made by regular mail to the last known address. (d) Service of notices. (1) Service of notices shall be made either: (i) By delivering a copy to the individual, any partner, any officer of a corporation, or any attorney of record; (ii) By leaving a copy at the principal office, place of business, or residence of such individual, partner, officer or attorney; or (iii) By mailing a copy to the last known address of such individual, partner, officer or attorney. (2) If service is accomplished by certified mail, service is complete upon mailing. If done by regular mail, service is complete upon receipt by the addressee. (e) Form of pleadings.… | |||
| 29:29:9.1.2.7.8.1.1.4 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | A | Subpart A—Procedures for the Assessment of Civil Sanctions Under ERISA Section 502(i) | § 2570.4 Parties. | PBGC | For prohibited transaction penalty proceedings, this section shall apply in lieu of § 18.10 of this title. (a) The term party wherever used in these rules shall include any natural person, corporation, employee benefit plan, association, firm, partnership, trustee, receiver, agency, public or private organization, or government agency. A party against whom a civil sanction is sought shall be designated as “respondent.” The Department shall be designated as the “complainant.” (b) Other persons or organizations shall be permitted to participate as parties only if the administrative law judge finds that the final decision could directly and adversely affect them or the class they represent, that they may contribute materially to the disposition of the proceedings and their interest is not adequately represented by existing parties, and that in the discretion of the administrative law judge the participation of such persons or organizations would be appropriate. (c) A person or organization not named as a respondent wishing to participate as a party under this section shall submit a petition to the administrative law judge within fifteen (15) days after the person or organization has knowledge of or should have known about the proceeding. The petition shall be filed with the administrative law judge and served on each person or organization who has been made a party at the time of filing. Such petition shall concisely state: (1) Petitioner's interest in the proceeding; (2) How his or her participation as a party will contribute materially to the disposition of the proceeding; (3) Who will appear for petitioner; (4) The issues on which petitioner wishes to participate; and (5) Whether petitioner intends to present witnesses. (d) Objections to the petition may be filed by a party within fifteen (15) days of the filing of the petition. If objections to the petition are filed, the administrative law judge shall then determine whether petitioners have the requisite interest to be a party in the proceedings, as … | ||||
| 29:29:9.1.2.7.8.1.1.5 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | A | Subpart A—Procedures for the Assessment of Civil Sanctions Under ERISA Section 502(i) | § 2570.5 Consequences of default. | PBGC | For prohibited transaction penalty proceedings, this section shall apply in lieu of § 18.5(b) of this title. Failure of the respondent to file an answer within the 30 day time period provided in § 18.5 of this title shall be deemed to constitute a waiver of his right to appear and contest the allegations of the notice, and such failure shall be deemed to be an admission of the facts as alleged in the notice for purposes of the prohibited transaction penalty proceeding. Such notice shall then become the final order of the Secretary, except that the administrative law judge may set aside a default entered under this provision where there is proof of defective notice. | ||||
| 29:29:9.1.2.7.8.1.1.6 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | A | Subpart A—Procedures for the Assessment of Civil Sanctions Under ERISA Section 502(i) | § 2570.6 Consent order or settlement. | PBGC | For prohibited transaction penalty proceedings, the following shall apply in lieu of § 18.9 of this title. (a) General. At any time after the commencement of a proceeding, but at least five (5) days prior to the date set for hearing, the parties jointly may move to defer the hearing for a reasonable time to permit negotiation of a settlement or an agreement containing findings and an order disposing of the whole or any part of the proceeding. The allowance of such deferment and the duration thereof shall be in the discretion of the administrative law judge, after consideration of such factors as the nature of the proceeding, the requirements of the public interest, the representations of the parties and the probability of reaching an agreement which will result in a just disposition of the issues involved. (b) Content. Any agreement containing consent findings and an order disposing of a proceeding or any part thereof shall also provide: (1) That the order shall have the same force and effect as an order made after full hearing; (2) That the entire record on which any order may be based shall consist solely of the notice and the agreement; (3) A waiver of any further procedural steps before the administrative law judge; (4) A waiver of any right to challenge or contest the validity of the order and decision entered into in accordance with the agreement; and (5) That the order and decision of the administrative law judge shall be final agency action. (c) Submission. On or before the expiration of the time granted for negotiations, but, in any case, at least five (5) days prior to the date set for hearing, the parties or their authorized representative or their counsel may: (1) Submit the proposed agreement containing consent findings and an order to the administrative law judge; or (2) Notify the administrative law judge that the parties have reached a full settlement and have agreed to dismissal of the action subject to compliance with the terms of the settlement; or (3) Inform the administrative… | ||||
| 29:29:9.1.2.7.8.1.1.7 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | A | Subpart A—Procedures for the Assessment of Civil Sanctions Under ERISA Section 502(i) | § 2570.7 Scope of discovery. | PBGC | For prohibited transaction penalty proceedings, this section shall apply in lieu of § 18.14 of this title. (a) A party may file a motion to conduct discovery with the administrative law judge. The motion for discovery shall be granted by the administrative law judge only upon a showing of good cause. In order to establish “good cause” for the purposes of this section, a party must show that the discovery requested relates to a genuine issue as to a material fact that is relevant to the proceeding. The order of the administrative law judge shall expressly limit the scope and terms of discovery to that for which “good cause” has been shown, as provided in this paragraph. (b) A party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (a) of this section and prepared in anticipation of or for the hearing by or for another party's representative (including his or her attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials or information in the preparation of his or her case and that he or she is unable without undue hardship to obtain the substantial equivalent of the materials or information by other means. In ordering discovery of such materials when the required showing has been made, the administrative law judge shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the proceeding. | ||||
| 29:29:9.1.2.7.8.1.1.8 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | A | Subpart A—Procedures for the Assessment of Civil Sanctions Under ERISA Section 502(i) | § 2570.8 Summary decision. | PBGC | For prohibited transaction penalty proceedings, this section shall apply in lieu of § 18.41 of this title. (a) No genuine issue of material fact. (1) Where no genuine issue of a material fact is found to have been raised, the administrative law judge may issue a decision which, in the absence of an appeal pursuant to §§ 2570.10-2570.12 of this part, shall become a final order. (2) A decision made under this paragraph shall include a statement of: (i) Findings of fact and conclusions of law, and the reasons therefor, on all issues presented; and (ii) Any terms and conditions of the rule or order. (3) A copy of any decision under this paragraph shall be served on each party. (b) Hearings on issue of fact. Where a genuine question of material fact is raised, the administrative law judge shall, and in any other case may, set the case for an evidentiary hearing. | ||||
| 29:29:9.1.2.7.8.1.1.9 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | A | Subpart A—Procedures for the Assessment of Civil Sanctions Under ERISA Section 502(i) | § 2570.9 Decision of the administrative law judge. | PBGC | For prohibited transaction penalty proceedings, this section shall apply in lieu of § 18.57 of this title. (a) Proposed findings of fact, conclusions, and order. Within twenty (20) days of the filing of the transcript of the testimony or such additional time as the administrative law judge may allow, each party may file with the administrative law judge, subject to the judge's discretion, proposed findings of fact, conclusions of law, and order together with a supporting brief expressing the reasons for such proposals. Such proposals and brief shall be served on all parties, and shall refer to all portions of the record and to all authorities relied upon in support of each proposal. (b) Decision of the administrative law judge. Within a reasonable time after the time allowed for the filing of the proposed findings of fact, conclusions of law, and order, or within thirty (30) days after receipt of an agreement containing consent findings and order disposing of the disputed matter in whole, the administrative law judge shall make his or her decision. The decision of the administrative law judge shall include findings of fact and conclusions of law with reasons therefor upon each material issue of fact of law presented on the record. The decision of the administrative law judge shall be based upon the whole record. In a contested case in which the Department and the Respondent have presented their positions to the administrative law judge pursuant to the procedures for prohibited transaction penalty proceedings as set forth in this part, the penalty (if any) which may be included in the decision of the administrative law judge shall be limited to the sanction expressly provided for in section 502(i) of ERISA. It shall be supported by reliable and probative evidence. The decision of the administrative law judge shall become final agency action within the meaning of 5 U.S.C. 704 unless an appeal is made pursuant to the procedures set forth in §§ 2570.10 through 2570.12. | ||||
| 29:29:9.1.2.7.8.2.1.1 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.30 Scope of this subpart. | PBGC | (a) The rules of procedure set forth in this subpart apply to applications for prohibited transaction exemptions issued by the Department under the authority of: (1) Section 408(a) of the Employee Retirement Income Security Act of 1974 (ERISA); (2) Section 4975(c)(2) of the Internal Revenue Code of 1986 (the Code); or See H.R. Rep. No. 1280, 93d Cong., 2d Sess. 310 (1974), and also section 102 of Presidential Reorganization Plan No. 4 of 1978 (3 CFR, 1978 Comp., p. 332, reprinted in 5 U.S.C. app. at 672 (2006), and in 92 Stat. 3790 (1978)), effective December 31, 1978, which generally transferred the authority of the Secretary of the Treasury to issue administrative exemptions under section 4975(c)(2) of the Code to the Department. (3) The Federal Employees' Retirement System Act of 1986 (FERSA) (5 U.S.C. 8477(c)(3)). (b) Under the rules of procedure in this subpart, the Department may conditionally or unconditionally exempt any fiduciary or transaction, or class of fiduciaries or transactions, from all or part of the restrictions imposed by ERISA section 406 and the corresponding restrictions of the Code and FERSA. While administrative exemptions granted under the rules in this subpart are ordinarily prospective in nature, it is possible that an applicant may obtain retroactive relief for past prohibited transactions if, among other things, the Department determines that appropriate safeguards were in place at the time the exemption transaction was consummated, and no plan participants or beneficiaries were harmed by the exemption transaction. (c) The rules in this subpart govern the filing and processing of applications for both individual and class exemptions that the Department may propose and grant pursuant to the authorities cited in paragraph (a) of this section. The Department may also propose and grant exemptions on its own motion, in which case the procedures relating to publication of notices, hearings, evaluation, and public inspection of the administrative record, and modification or revocation… | ||||
| 29:29:9.1.2.7.8.2.1.10 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.39 Opportunities to submit additional information. | PBGC | (a) An applicant may notify the Department of its intent to submit additional information supporting an exemption application by telephone, by letter sent to the address furnished in the applicant's tentative denial letter, or electronically to the email address provided in the applicant's tentative denial letter. At the same time, the applicant should indicate generally the type of information that will be submitted. (b) The additional information an applicant intends to provide in support of the application must be in writing and received by the Department within 40 days from the date the Department issues the tentative denial letter unless the Department extends the time period at its sole discretion. All such information must be accompanied by a certification that all information provided to the Department is true and correct, and the certification must be dated and signed by a person qualified under § 2570.34(b)(6) to sign such a declaration. The information may be submitted either electronically or by mail to the address specified in the letter. (c) If, for reasons beyond its control, an applicant is unable to submit all the additional information they intend to provide in support of their application within the period described in paragraph (b) of this section, they may request an extension of time to furnish the information. Such requests must be made before the expiration of the time period described in paragraph (b), and the request will be granted, in the Department's sole discretion, only in unusual circumstances and for a limited period as determined by the Department. The request may be made by telephone, mail, or electronically. (d) The Department will issue, without further notice, either by mail or electronically, a final denial letter denying the requested exemption pursuant to § 2570.41 if— (1) The Department has not received the additional information that the applicant stated their intention to submit within the period described in paragraph (b) of this section, or within any additional p… | ||||
| 29:29:9.1.2.7.8.2.1.11 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.40 Conferences. | PBGC | (a) Any conference between the Department and an applicant pertaining to a requested exemption will be held in Washington, DC, except that a telephone or electronic conference will be held at the applicant's request. (b) An applicant is entitled to only one conference with respect to any exemption application. The Department may hold additional conferences at its sole discretion if it determines additional conference(s) are appropriate. An applicant will not be entitled to a conference, however, if the Department has held a hearing on the exemption under either § 2570.46 or § 2570.47. (c) Insofar as possible, conferences will be scheduled as joint conferences with all applicants present if: (1) More than one applicant has requested an exemption with respect to the same or similar types of transactions; (2) The Department is considering the applications together as a request for a class exemption; (3) The Department contemplates not granting the exemption; and (4) More than one applicant has requested a conference. (d) In instances where the applicant has requested a conference pursuant to § 2570.38(b) and also has submitted additional information pursuant to § 2570.39, the Department will schedule a conference under this section for a date and time that occurs within 20 days after the date on which the Department has provided either oral or written notification to the applicant that, after reviewing the additional information, it still is not prepared to propose the requested exemption or a later date determined at the Department's sole discretion. If, for reasons beyond its control, the applicant cannot attend a conference within the time limit described in this paragraph (d), the applicant may request an extension of time for the scheduling of a conference, provided that such request is made before the expiration of the time limit. The Department, at its sole discretion, will only grant such an extension in unusual circumstances and for a brief period. (e) In instances where the applicant has requested … | ||||
| 29:29:9.1.2.7.8.2.1.12 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.41 Final denial letters. | PBGC | The Department will issue a final denial letter denying a requested exemption, either by mail or electronically, if: (a) Before issuing a tentative denial letter under § 2570.38 or conducting a hearing on the exemption under either § 2570.46 or § 2570.47, the Department determines at its sole discretion that: (1) The applicant has failed to submit information requested by the Department in a timely manner; (2) The information provided by the applicant does not meet the requirements of §§ 2570.34 and 2570.35; or (3) A conference was held between the Department and the applicant before the Department issued a tentative denial letter during which the Department and the applicant addressed the reasons for denial that otherwise would have been set forth in a tentative denial letter pursuant to § 2570.38; (b) The conditions for issuing a final denial letter specified in § 2570.38(b) or § 2570.39(d) are satisfied; (c) After issuing a tentative denial letter under § 2570.38 and considering the entire record in the case, including all written information submitted pursuant to §§ 2570.39 and 2570.40, the Department decides not to propose an exemption or to withdraw an exemption it already proposed; (d) After proposing an exemption and conducting a hearing on the exemption under either § 2570.46 or § 2570.47 and after considering the entire record in the case, including the record of the hearing and any public comments, the Department decides to withdraw the proposed exemption; or (e) The applicant either: (1) Requests for the Department to withdraw the exemption application; or (2) Communicates to the Department that it is not interested in continuing the application process. | ||||
| 29:29:9.1.2.7.8.2.1.13 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.42 Notice of proposed exemption. | PBGC | If the Department tentatively decides that an administrative exemption is warranted, it will publish a notice of a proposed exemption in the Federal Register. In addition to providing notice of the pendency of the exemption before the Department, the notice will: (a) Explain the exemption transaction and summarize the information and reasons in support of proposing the exemption; (b) Describe the scope of relief and any conditions of the proposed exemption; (c) Inform interested persons of their right to submit comments to the Department (either electronically or in writing) relating to the proposed exemption and establish a deadline for receipt of such comments; and (d) If the proposed exemption includes relief from the prohibitions of ERISA section 406(b), Code section 4975(c)(1)(E) or (F), or FERSA section 8477(c)(2), inform interested persons who are materially affected by the grant of the exemption of their right to request a hearing under § 2570.46 and establish a deadline for hearing requests to be submitted. | ||||
| 29:29:9.1.2.7.8.2.1.14 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.43 Notification of interested persons by applicant. | PBGC | (a) If a notice of proposed exemption is published in the Federal Register in accordance with § 2570.42, the applicant must notify interested persons of the pendency of the exemption in the manner and within the time period specified in the application. If the Department determines that this notification would be inadequate, the applicant must obtain the Department's consent as to the manner and time period of providing the notice to interested persons. Any such notification must include: (1) A copy of the notice of proposed exemption as published in the Federal Register ; and (2) A supplemental statement in the following form: You are hereby notified that the United States Department of Labor is considering granting an exemption from the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974, the Internal Revenue Code of 1986, or the Federal Employees' Retirement System Act of 1986. The exemption under consideration is summarized in the enclosed [Summary of Proposed Exemption and described in greater detail in the accompanying] 1 Notice of Proposed Exemption. As a person who may be affected by this exemption, you have the right to comment on the proposed exemption by [date]. 2 [If you may be materially affected by the grant of the exemption, you also have the right to request a hearing on the exemption by [date].] 3 1 To be added in instances where the Department requires the applicant to furnish a Summary of Proposed Exemption to interested persons as described in paragraph (d) of this section. 2 The applicant will write in this space the date of the last day of the time period specified in the notice of proposed exemption. 3 To be added in the case of an exemption that provides relief from ERISA section 406(b) or corresponding sections of the Code or FERSA. All comments and/or requests for a hearing should be addressed to the Office of Exemption Determinations, Employee Benefits Security Administration, Room N-5461, 4 U.S. … | ||||
| 29:29:9.1.2.7.8.2.1.15 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.44 Withdrawal of exemption applications. | PBGC | (a) An applicant may withdraw an application for an exemption at any time by oral or written (including electronic) notice to the Department. A withdrawn application generally shall not prejudice any subsequent applications for the same exemption transaction submitted by an applicant. (b) Upon receiving an applicant's notice of withdrawal regarding an application for an individual exemption, the Department will issue a final denial letter in accordance with § 2570.41(e) and will terminate all proceedings relating to the application. If a notice of proposed exemption has been published in the Federal Register, the Department will publish a notice in the Federal Register withdrawing the proposed exemption. (c) Upon receiving an applicant's notice of withdrawal regarding an application for a class exemption or an individual exemption that is being considered with other applications as a request for a class exemption, the Department will inform any other applicants for the exemption of the withdrawal. The Department will continue to process other applications for the same exemption. If all applicants for a particular class exemption withdraw their applications, the Department may either terminate all proceedings relating to the exemption or propose the exemption on its own motion. (d) If, following the withdrawal of an exemption application, an applicant decides to reapply for the same exemption, they may contact the Department in writing (including electronically) to request the Department to reinstate the application. The applicant should refer to the application number assigned to the original application. If, at the time the original application was withdrawn, any additional information required to be submitted to the Department under § 2570.39 was outstanding, that information must accompany the request for reinstatement of the application. The applicant must also update all previously furnished information to the Department in connection with a withdrawn application. (e) Any request for reinstatement of… | ||||
| 29:29:9.1.2.7.8.2.1.16 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.45 Requests for reconsideration. | PBGC | (a) The Department will entertain one request for reconsideration of an exemption application that the Department has denied pursuant to § 2570.41 if the applicant either: (1) Presents significant new facts or arguments in support of the application, which, for good reason, could not have been submitted for the Department's consideration during its initial review of the exemption application; or (2) The applicant received a final denial letter pursuant to § 2570.41(a) before the Department issued a tentative denial letter under § 2570.38 or conducted a hearing on the exemption under either § 2570.46 or § 2570.47. (b) An applicant must submit a request for reconsideration of a previously denied application within 180 days after the issuance of the final denial letter and include with the request a copy of the Department's final denial letter and a statement setting forth the new information and/or arguments that provide the basis for reconsideration. (c) A request for reconsideration must also be accompanied by a certification that the new information provided to the Department is true and correct, which is signed by a person qualified under § 2570.34(b)(6) to sign the certification. (d) If, after reviewing a request for reconsideration, the Department decides that the facts and arguments presented do not warrant reversal of its original decision to deny the exemption, it will send a letter to the applicant reaffirming that decision. (e) If, after reviewing a request for reconsideration, the Department decides to reconsider its final denial letter based on the new facts and arguments submitted by the applicant, it will notify the applicant of its intent to reconsider the application in light of the new information presented. The Department will then take whatever steps remained to be completed to process the exemption application when it issued its final denial letter. (f) If, at any point during its subsequent processing of the application, the Department decides again that the exemption is unwarranted, it… | ||||
| 29:29:9.1.2.7.8.2.1.17 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.46 Hearings in opposition to exemptions from restrictions on fiduciary self-dealing and conflicts of interest. | PBGC | (a) Any person who may be materially affected by an exemption which the Department proposes to grant from the restrictions of ERISA section 406(b), Code section 4975(c)(1)(E) or (F), or FERSA section 8477(c)(2) may request a hearing before the Department within the time period specified in the Federal Register notice of the proposed exemption. Any such request must state: (1) The name, address, telephone number, and email address of the person making the request; (2) The nature of the person's interest in the exemption and how the person would be materially affected by the exemption; and (3) A statement of the issues to be addressed and a general description of the evidence to be presented at the hearing. (b) The Department will grant a request for a hearing made in accordance with paragraph (a) of this section if a hearing is necessary to fully explore material factual issues with respect to the proposed exemption identified by the person requesting the hearing. The Department will publish a notice of such hearing in the Federal Register. The Department may decline to hold a hearing if: (1) The request for the hearing is not timely, or otherwise fails to include the information required by paragraph (a) of this section; (2) The only issues identified for exploration at the hearing are matters of law; or (3) The factual issues identified can be fully explored through the submission of evidence in written (including electronic) form. (c) An applicant for an exemption must notify interested persons if the Department schedules a hearing on the exemption. Such notification must be provided in the form, time, and manner prescribed by the Department. Ordinarily, however, adequate notification can be given by providing to interested persons a copy of the notice of hearing published by the Department in the Federal Register within 10 days after its publication, using any of the methods approved in § 2570.43(b). (d) After furnishing the notice required by paragraph (c) of this section, an applicant must sub… | ||||
| 29:29:9.1.2.7.8.2.1.18 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.47 Other hearings. | PBGC | (a) In its sole discretion, the Department may schedule a hearing on its own motion if it determines that issues relevant to the exemption can be most fully or expeditiously explored at a hearing. The Department shall publish a notice of such hearing in the Federal Register . (b) An applicant for an exemption must notify interested persons of any hearing on an exemption scheduled by the Department in the manner described in § 2570.46(c). In addition, the applicant must submit a certification subscribed as true and correct like that required in § 2570.46(d). | ||||
| 29:29:9.1.2.7.8.2.1.19 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.48 Decision to grant exemptions. | PBGC | (a) The Department may not grant an exemption under ERISA section 408(a), Code section 4975(c)(2), or 5 U.S.C. 8477(c)(3)(C) unless, following evaluation of the facts and representations comprising the administrative record of the proposed exemption (including any comments received in response to a notice of proposed exemption and the record of any hearing held in connection with the proposed exemption), it finds that the exemption meets the statutory requirements by being: (1) Administratively feasible for the Department; (2) In the interests of the plan (or the Thrift Savings Fund in the case of FERSA) and of its participants and beneficiaries; and (3) Protective of the rights of participants and beneficiaries of such plan (or the Thrift Savings Fund in the case of FERSA). (b) In each instance where the Department determines to grant an exemption, it shall publish a notice in the Federal Register which summarizes the transaction or transactions for which exemptive relief has been granted and specifies the conditions under which such exemptive relief is available. | ||||
| 29:29:9.1.2.7.8.2.1.2 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.31 Definitions. | PBGC | For purposes of the procedures in this subpart, the following definitions apply: (a) An affiliate of a person means— (1) Any person directly or indirectly through one or more intermediaries, controlling, controlled by, or under common control with the person. For purposes of this paragraph (a)(1), the term “control” means the power to exercise a controlling influence over the management or policies of a person other than an individual; (2) Any officer, director, partner, employee, or relative (as defined in ERISA section 3(15)) of any such person; or (3) Any corporation, partnership, trust, or unincorporated enterprise of which such person is an officer, director, partner, or five percent or more owner. (b) A class exemption is an administrative exemption, granted under ERISA section 408(a), Code section 4975(c)(2), and/or 5 U.S.C. 8477(c)(3), which applies to any transaction and party in interest within the class of transactions and parties in interest specified in the exemption when the conditions of the exemption are satisfied. (c) Department means the U.S. Department of Labor and includes the Secretary of Labor or their delegate exercising authority with respect to prohibited transaction exemptions to which this subpart applies. (d) Exemption transaction means the transaction or transactions for which an exemption is requested. (e) An individual exemption is an administrative exemption, granted under ERISA section 408(a), Code section 4975(c)(2), and/or 5 U.S.C. 8477(c)(3), which applies only to the specific parties in interest and exemption transactions named or otherwise defined in the exemption. (f) A party in interest means a person described in ERISA section 3(14) or 5 U.S.C. 8477(a)(4) and includes a disqualified person, as defined in Code section 4975(e)(2). (g) Pooled fund means an account or fund for the collective investment of the assets of two or more unrelated plans, including (but not limited to) a pooled separate account maintained by an insurance company and a common or… | ||||
| 29:29:9.1.2.7.8.2.1.20 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.49 Limits on the effect of exemptions. | PBGC | (a) An exemption does not take effect with respect to the exemption transaction unless the material facts and representations contained in the application and in any materials and documents submitted in support of the application were true and complete at the time of the submission of such material. (b) An exemption is effective only for the period of time specified and only under the conditions set forth in the exemption. (c) Only the specific parties to whom an exemption grants relief may rely on the exemption. If the notice granting an exemption does not limit exemptive relief to specific parties, all parties to the exemption transaction may rely on the exemption. (d) For exemption transactions that are continuing in nature, an exemption ceases to be effective if, during the continuation of the exemption transaction, there are material changes to the original facts and representations underlying such exemption or if one or more of the exemption's conditions cease to be met. (e) The determination as to whether, under the totality of the facts and circumstances, a particular statement contained in (or omitted from) an exemption application constitutes a material fact or representation is made by the Department in its sole discretion. | ||||
| 29:29:9.1.2.7.8.2.1.21 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.50 Revocation or modification of exemptions. | PBGC | (a) If, after an exemption takes effect, material changes in facts, circumstances, or representations occur, including whether a qualified independent fiduciary resigns, is terminated, or is convicted of a crime, the Department, at its sole discretion, may take steps to revoke or modify the exemption. If the qualified independent fiduciary resigns, is terminated, or is convicted of a crime, the applicant must notify the Department within 30 days of the resignation, termination, or conviction, and the Department reserves the right to request the applicant to provide the Department with any of the information required pursuant to § 2570.34(e) and (f) pursuant to a time determined by the Department at its sole discretion. (b) Before revoking or modifying an exemption, the Department will publish a notice of its proposed action in the Federal Register and provide interested persons with an opportunity to comment on the proposed revocation or modification. Before the Department publishes such notice, it will notify the applicant of the Department's proposed action and the reasons therefore. After the publication of the notice, the applicant will have the opportunity to comment on the proposed revocation or modification. (c) The revocation or modification of an exemption will have prospective effect only. | ||||
| 29:29:9.1.2.7.8.2.1.22 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.51 Public inspection and copies. | PBGC | (a) From the date the administrative record of each exemption is established pursuant to § 2570.32(d), the administrative record of each exemption will be open for public inspection and copying at the EBSA Public Disclosure Room, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210. (b) Upon request, the staff of the Public Disclosure Room will furnish photocopies of an administrative record, or any specified portion of that record, for a specified charge per page; or, at the discretion of the Department, provide the administrative record electronically for a specified charge. | ||||
| 29:29:9.1.2.7.8.2.1.23 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.52 Effective date. | PBGC | This subpart is effective with respect to all exemptions filed with or initiated by the Department under ERISA section 408(a), Code section 4975(c)(2), and/or 5 U.S.C. 8477(c)(3) at any time on or after April 8, 2024. Applications for exemptions under ERISA section 408(a), Code section 4975(c)(2), and/or 5 U.S.C. 8477(c)(3) filed on or after December 27, 2011, but before April 8, 2024, are governed by 29 CFR part 2570 (revised effective December 27, 2011). | ||||
| 29:29:9.1.2.7.8.2.1.3 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.32 Persons who may apply for exemptions and the administrative record. | PBGC | (a) The following persons may apply for exemptions: (1) Any party in interest to a plan who is or may be a party to the exemption transaction; (2) Any plan which is a party to the exemption transaction; or (3) In the case of an application for an exemption covering a class of parties in interest or a class of transactions, in addition to any person described in paragraphs (a)(1) and (2) of this section, an association or organization representing parties in interest who may be parties to the exemption transaction. (b) An application by or for a person described in paragraph (a) of this section may be submitted by the applicant or by an authorized representative. An application submitted by an authorized representative of the applicant must include proof of authority in the form of: (1) A power of attorney; or (2) A written certification from the applicant that the representative is authorized to file the application. (c) If the authorized representative of an applicant submits an exemption application to the Department together with proof of authority to file the application as required by paragraph (b) of this section, the Department will direct all correspondence and inquiries concerning the application to the representative unless requested to do otherwise by the applicant. (d)(1) The administrative record is open for public inspection, pursuant to § 2570.51(a), from the date an applicant submits an application to the Office of Exemption Determinations. (2) The administrative record includes, but is not limited to, the initial exemption application and any modifications or supplements thereto; all correspondence with the applicant after the applicant submits the exemption application; and any information provided by the applicant in connection with the exemption application, whether provided orally or in writing (as well as any comments and testimony received by the Department in connection with an application). (3) Although the administrative record is open and available to the public only after an … | ||||
| 29:29:9.1.2.7.8.2.1.4 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.33 Applications the Department will not ordinarily consider. | PBGC | (a) The Department ordinarily will not consider an application that fails to include all the information required by §§ 2570.34 and 2570.35 (or fails to include current information) or otherwise fails to conform to the requirements in this subpart. (b) An application for an individual exemption relating to a specific exemption transaction or transactions ordinarily will not be considered if the Department has under consideration a class exemption relating to the same type of transaction or transactions. Notwithstanding the preceding sentence, the Department may consider such an application if the issuance of the final class exemption is not imminent, and the Department determines that time constraints necessitate consideration of the exemption transaction on an individual basis. (c) If a party, excluding a Federal, state, or other governmental entity, designates any information submitted in connection with its exemption application as confidential, the Department will not process the application unless and until the applicant withdraws its claim of confidentiality. By submitting an exemption application, an applicant consents to public disclosure of the entire administrative record pursuant to § 2570.51. (d) The Department will not engage a pre-submission applicant or its representative, whether through written correspondence or a conference, if the pre-submission applicant does not: (1) Identify and fully describe the exemption transaction; and (2) Set forth the prohibited transactions that the applicant believes are applicable. | ||||
| 29:29:9.1.2.7.8.2.1.5 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.34 Information to be included in every exemption application. | PBGC | (a) All applications for exemptions must contain the following information: (1) The name(s), address(es), phone number(s), and email address(es) of the applicant(s); (2) A detailed description of the exemption transaction, including the identification of all the parties in interest involved, a description of any larger integrated transaction of which the exemption transaction is a part, and a chronology of the events leading up to the exemption transaction; (3) The identity, address, phone number, and email address of any representatives for the affected plan(s) and parties in interest and what individuals or entities they represent; (4) A description of: (i) The reason(s) for engaging in the exemption transaction; (ii) Any material benefit that may be received by a party in interest (or its affiliates) as a result of the exemption transaction (including the avoidance of any materially adverse outcome by a party in interest (or its affiliates) as a result of engaging in the exemption transaction); and (iii) The costs and benefits of the exemption transaction to the affected plan(s), participants, and beneficiaries, including quantification of those costs and benefits to the extent possible; (5) A description of the alternatives to the exemption transaction that did not involve a prohibited transaction that were considered or evaluated by the applicant before submitting its exemption application and the reason(s) why those alternatives were not pursued; (6) The prohibited transaction provisions from which exemptive relief is requested and the reason(s) why the exemption transaction would violate each such provision; (7) A description of each conflict of interest or potential instance of self-dealing that would be permitted if the exemption is granted; (8) Whether the exemption transaction is or has been the subject of an investigation or enforcement action by the Department, the Internal Revenue Service, or any other regulatory authority; and (9) The hardship or economic loss, if any, which would resul… | ||||
| 29:29:9.1.2.7.8.2.1.6 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.35 Information to be included in applications for individual exemptions only. | PBGC | (a) Except as provided in paragraph (c) of this section, every application for an individual exemption must include, in addition to the information specified in § 2570.34, the following information: (1) The name, address, email address, telephone number, and type of plan or plans to which the requested exemption applies; (2) The Employer Identification Number (EIN) and the plan number (PN) used by such plan or plans in all reporting and disclosure required by the Department (individuals should not submit Social Security numbers); (3) Whether any plan or trust affected by the requested exemption is currently under investigation for violation of, or has ever been found by the Department, the Internal Revenue Service, or by a court to have violated, the exclusive benefit rule of Code section 401(a), Code section 4975(c)(1), ERISA sections 406 or 407(a), or 5 U.S.C. 8477(c)(3), including a description of the circumstances surrounding such violation; (4) Whether any relief under ERISA section 408(a), Code section 4975(c)(2), or 5 U.S.C. 8477(c)(3) has been requested by, or provided to, the applicant or any parties in interest (or their affiliates) involved in the exemption transaction and, if so, the exemption application number or the prohibited transaction exemption number; (5) Whether the applicant or any party in interest (or its affiliates) involved in the exemption transaction is currently, or has been within the last five years, a defendant in any lawsuits or criminal actions concerning its conduct as a fiduciary or party in interest with respect to any plan (other than lawsuits with respect to a routine claim for benefits), and a description of the circumstances of the lawsuits or criminal actions; (6)(i) Whether the applicant (including any person described in § 2570.34(b)(6)(ii)) or any of the parties in interest involved in the exemption transaction has, within the last 13 years, been: (A) Convicted or released from imprisonment, whichever is later, as a result of any felony involving abuse or misuse… | ||||
| 29:29:9.1.2.7.8.2.1.7 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.36 Where to file an application. | PBGC | The Department's prohibited transaction exemption program is administered by the Employee Benefits Security Administration (EBSA). Any exemption application governed by this subpart may be emailed to the Department at e-OED@dol.gov. The applicant is not required to submit a paper copy if an electronic copy is submitted. An applicant may submit a paper copy of the application by mailing it via first-class mail to: Employee Benefits Security Administration, Office of Exemption Determinations, U.S. Department of Labor, 200 Constitution Avenue NW, Suite 400 Washington, DC 20210 or via private carrier service to Employee Benefit Security Administration, U.S. Department of Labor, Office of Exemption Determinations, 122 C Street NW, Suite 400, Washington, DC 20001-2109. The mail or private carrier service addresses, however, are subject to change, and the applicant should confirm the address with the Office of Exemption Determinations before submitting a paper copy of an application. | ||||
| 29:29:9.1.2.7.8.2.1.8 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.37 Duty to amend and supplement exemption applications. | PBGC | (a) During the Department's consideration of an exemption application and following any grant by the Department of an exemption request, an applicant must promptly notify the Department in writing if they discover that any material fact or representation contained in the application or in any documents or testimony provided in support of the application was inaccurate at the time it was provided to the Department in support of the application. If any material fact or representation changes during this period, or if anything occurs that may affect the continuing accuracy of any such fact or representation, the applicant must promptly notify the Department in writing of the change. In addition, an applicant must promptly notify the Department in writing if it learns that a material fact or representation has been omitted from the exemption application. (b) If, at any time during the pendency of an exemption application, the applicant or any other party in interest who would participate in the exemption transaction becomes the subject of an investigation or enforcement action by the Department, the Internal Revenue Service, the Justice Department, the Pension Benefit Guaranty Corporation, the Federal Retirement Thrift Investment Board, or any other Federal or state governmental entity involving: (1) Compliance with provisions of ERISA or FERSA; (2) Representation of or position or employment with any employee benefit plan, including investigations or controversies involving ERISA or the Code, or any other Federal or state law; (3) Conduct of the business of a broker, dealer, investment adviser, bank, insurance company, or fiduciary; (4) Income tax evasion; or (5) Any felony or conspiracy involving the larceny, theft, robbery, extortion, forgery, counterfeiting, fraudulent concealment, embezzlement, fraudulent conversion, or misappropriation of funds or securities, the applicant must promptly notify the Department. (c) The Department may require an applicant to provide any documentation it considers necessary … | ||||
| 29:29:9.1.2.7.8.2.1.9 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | B | Subpart B—Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications | § 2570.38 Tentative denial letters. | PBGC | (a) If, after reviewing an exemption file, the Department tentatively concludes that it will not propose or grant the exemption, it will notify the applicant in writing. At the same time the Department provides the notification, the Department will also provide a brief statement of the reasons for its tentative denial. As referenced in § 2570.33(a)(1), the Department will not hold a conference with, or issue a tentative denial letter to, an applicant who does not submit a complete application, or an applicant who does not provide current information. (b) An applicant will have 20 days from the date of a tentative denial letter, unless the Department extends the time period at its sole discretion, to request a conference under § 2570.40 and/or to notify the Department of its intent to submit additional information under § 2570.39. If the Department does not receive a request for a conference or a notification of intent to submit additional information within that time, it will issue a final denial letter pursuant to § 2570.41. | ||||
| 29:29:9.1.2.7.8.3.1.1 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | C | Subpart C—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(2) | § 2570.60 Scope of rules. | PBGC | The rules of practice set forth in this subpart are applicable to “502(c)(2) civil penalty proceedings” (as defined in § 2570.61(n) of this subpart) under section 502(c)(2) of the Employee Retirement Income Security Act of 1974. The rules of procedure for administrative hearings published by the Department's Office of Law Judges at part 18 of this title will apply to matters arising under ERISA section 502(c)(2) except as modified by this section. These proceedings shall be conducted as expeditiously as possible, and the parties shall make every effort to avoid delay at each stage of the proceedings. | ||||
| 29:29:9.1.2.7.8.3.1.10 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | C | Subpart C—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(2) | § 2570.69 Review by the Secretary. | PBGC | (a) The Secretary may review a decision of an administrative law judge. Such a review may occur only when a party files a notice of appeal from a decision of an administrative law judge within twenty (20) days of the issuance of such decision. In all other cases, the decision of the administrative law judge shall become final agency action within the meaning of 5 U.S.C. 704. (b) A notice of appeal to the Secretary shall state with specificity the issue(s) in the decision of the administrative law judge on which the party is seeking review. Such notice of appeal must be served on all parties of record. (c) Upon receipt of a notice of appeal, the Secretary shall request the Chief Administrative Law Judge to submit to him or her a copy of the entire record before the administrative law judge. | ||||
| 29:29:9.1.2.7.8.3.1.11 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | C | Subpart C—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(2) | § 2570.70 Scope of review. | PBGC | The review of the Secretary shall not be de novo proceeding but rather a review of the record established before the administrative law judge. There shall be no opportunity for oral argument. | ||||
| 29:29:9.1.2.7.8.3.1.12 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | C | Subpart C—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(2) | § 2570.71 Procedures for review by the Secretary. | PBGC | (a) Upon receipt of the notice of appeal, the Secretary shall establish a briefing schedule which shall be served on all parties of record. Upon motion of one or more of the parties, the Secretary may, in his or her discretion, permit the submission of reply briefs. (b) The Secretary shall issue a decision as promptly as possible after receipt of the briefs of the parties. The Secretary may affirm, modify, or set aside, in whole or in part, the decision on appeal and shall issue a statement of reasons and bases for the action(s) taken. Such decision by the Secretary shall be final agency action within the meaning of 5 U.S.C. 704. | ||||
| 29:29:9.1.2.7.8.3.1.2 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | C | Subpart C—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(2) | § 2570.61 Definitions. | PBGC | [54 FR 26897, June 26, 1989, as amended at 68 FR 3737, Jan. 24, 2003] | For 502(c)(2) civil penalty proceedings, this section shall apply in lieu of the definitions in § 18.2 of this title: (a) Adjudicatory proceeding means a judicial-type proceeding before an administrative law judge leading to the formulation of a final order; (b) Administrative law ludge means an administrative law judge appointed pursuant to the provisions of 5 U.S.C. 3105; (c) Answer means a written statement that is supported by reference to specific circumstances or facts surrounding the notice of determination issued pursuant to § 2560.502c-2(g) of this chapter. (d) Commencement of proceeding is the filing of an answer by the respondent; (e) Consent agreement means any written document containing a specified proposed remedy or other relief acceptable to the Department and consenting parties; (f) ERISA means the Employee Retirement Income Security Act of 1974, as amended; (g) Final Order means the final decision or action of the Department of Labor concerning the assessment of a civil penalty under ERISA section 502(c)(2) against a particular party. Such final order may result from a decision of an administrative law judge or the Secretary, the failure of a party to file a statement of reasonable cause described in § 2560.502c-2(e) within the prescribed time limits, or the failure of a party to invoke the procedures for hearings or appeals under this title within the prescribed time limits. Such a final order shall constitute final agency action within the meaning of 5 U.S.C. 704; (h) Hearing means that part of a proceeding which involves the submission of evidence, either by oral presentation or written submission, to the administrative law judge; (i) Order means the whole or any part of a final procedural or substantive disposition of a matter under ERISA section 502(c)(2); (j) Party includes a person or agency named or admitted as a party to a proceeding; (k) Person includes an individual, partnership, corporation, employee benefit plan, association, exchange or other entity… | |||
| 29:29:9.1.2.7.8.3.1.3 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | C | Subpart C—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(2) | § 2570.62 Service: Copies of documents and pleadings. | PBGC | [54 FR 26897, June 26, 1989, as amended at 56 FR 54708, Oct. 22, 1991] | For 502(c)(2) penalty proceedings, this section shall apply in lieu of § 18.3 of this title. (a) General. Copies of all documents shall be served on all parties of record. All documents should clearly designate the docket number, if any, and short title of all matters. All documents to be filed shall be delivered or mailed to the Chief Docket Clerk, Office of Administrative Law Judges, 800 K Street, NW., Suite 400, Washington, DC 20001-8002, or to the OALJ Regional Office to which the proceeding may have been transferred for hearing. Each document filed shall be clear and legible. (b) By parties. All motions petitions, pleadings, briefs, or other documents shall be filed with the Office of Administrative Law Judges with a copy, including any attachments, to all other parties or record. When a party is represented by an attorney, service shall be made upon the attorney. Service of any document upon any party may be made by personal delivery or by mailing a copy to the last known address. The Department shall be served by delivery to the Associate Solicitor, Plan Benefits Security Division, ERISA section 502(c)(2) Proceeding, P.O. Box 1914, Washington, DC 20013. The person serving the document shall certify to the manner and date of service. (c) By the Office of Administrative Law Judges. Service of orders, decisions and all other documents shall be made by regular mail to the last known address. (d) Form of pleadings. (1) Every pleading shall contain information indicating the name of the Employee Benefits Security Administration (EBSA) as the agency under which the proceeding is instituted, the title of the proceeding, the docket number (if any) assigned by the Office of Administrative Law Judges and a designation of the type of pleading or paper (e.g., notice, motion to dismiss, etc.). The pleading or paper shall be signed and shall contain the address and telephone number of the party or person representing the party. Although there are no formal specifications for documents, they should be typewrit… | |||
| 29:29:9.1.2.7.8.3.1.4 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | C | Subpart C—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(2) | § 2570.63 Parties, how designated. | PBGC | For 502(c)(2) civil penalty proceedings, this section shall apply in lieu of § 18.10 of this title. (a) The term “party” wherever used in these rules shall include any natural person, corporation, employee benefit plan, association, firm, partnership, trustee, receiver, agency, public or private organization, or government agency. A party against whom a civil penalty is sought shall be designated as “respondent.” The Department shall be designated as the “complainant.” (b) Other persons or organizations shall be permitted to participate as parties only if the administrative law judge finds that the final decision could directly and adversely affect them or the class they represent, that they may contribute materially to the disposition of the proceedings and their interest is not adequately represented by existing parties, and that in the discretion of the administrative law judge the participation of such persons or organizations would be appropriate. (c) A person or organization not named as a respondent wishing to participate as a party under this section shall submit a petition to the administrative law judge within fifteen (15) days after the person or organization has knowledge of or should have known about the proceeding. The petition shall be filed with the administrative law judge and served on each person or organization who has been made a party at the time of filing. Such petition shall concisely state: (1) Petitioner's interest in the proceeding; (2) How his or her participation as a party will contribute materially to the disposition of the proceeding; (3) Who will appear for petitioner; (4) The issues on which petitioner wishes to participate; and (5) Whether petitioner intends to present witnesses. (d) Objections to the petition may be filed by a party within fifteen (15) days of the filing of the petition. If objections to the petition are filed, the administrative law judge shall then determine whether petitioners have the requisite interest to be a party in the proceedings, as defined … | ||||
| 29:29:9.1.2.7.8.3.1.5 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | C | Subpart C—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(2) | § 2570.64 Consequences of default. | PBGC | [68 FR 3737, Jan. 24, 2003] | For 502(c)(2) civil penalty proceedings, this section shall apply in lieu of § 18.5(a) and (b) of this title. Failure of the respondent to file an answer to the notice of determination described in § 2560.502c-2(g) of this chapter within the 30 day period provided by § 2560.502c-2(h) of this chapter shall be deemed to constitute a waiver of his or her right to appear and contest the allegations of the notice of determination, and such failure shall be deemed to be an admission of the facts as alleged in the notice for purposes of any proceeding involving the assessment of a civil penalty under section 502(c)(2) of the Act. Such notice shall then become the final order of the Secretary, within the meaning of § 2570.61(g) of this subpart, forty-five (45) days from the date of service of the notice. | |||
| 29:29:9.1.2.7.8.3.1.6 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | C | Subpart C—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(2) | § 2570.65 Consent order or settlement. | PBGC | For 502(c)(2) civil penalty proceedings, the following shall apply in lieu of § 18.9 of this title. (a) General. At any time after the commencement of a proceeding, but at least five (5) days prior to the date set for hearing, the parties jointly may move to defer the hearing for a reasonable time to permit negotiation of a settlement or an agreement containing findings and an order disposing of the whole or any part of the proceeding. The allowance of such and the duration thereof shall be in the discretion of the administrative law judge, after consideration of such factors as the nature of the proceeding, the requirements of the public interest, the representations of the parties and the probability of reaching an agreement which will result in a just disposition of the issues involved. (b) Content. Any agreement containing consent findings and an order disposing of a proceeding or any part thereof shall also provide: (1) That the order shall have the same force and effect as an order made after full hearing; (2) That the entire record on which any order may be based shall consist solely of the notice and the agreement; (3) A waiver of any further procedural steps before the administrative law judge; (4) A waiver of any right to challenge or contest the validity of the order and decision entered into in accordance with the agreement; and (5) That the order and decision of the administrative law judge shall be final agency action. (c) Submission. On or before the expiration of the time granted for negotiations, but, in any case, at least five (5) days prior to the date set for hearing, the parties or their authorized representative or their counsel may: (1) Submit the proposed agreement containing consent findings and an order to the administrative law judge; or (2) Notify the administrative law judge that the parties have reached a full settlement and have agreed to dismissal of the action subject to compliance with the terms of the settlement; or (3) Inform the administrative law judge that a… | ||||
| 29:29:9.1.2.7.8.3.1.7 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | C | Subpart C—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(2) | § 2570.66 Scope of discovery. | PBGC | For 502(c)(2) civil penalty proceedings, this section shall apply in lieu of § 18.14 of this title. (a) A party may file a motion to conduct discovery with the administrative law judge. The motion for discovery shall be granted by the administrative law judge only upon a showing of good cause. In order to establish “good cause” for the purposes of this section, a party must show that the discovery requested relates to a genuine issue as to a material fact that is relevant to the proceeding. The order of the administrative law judge shall expressly limit the scope and terms of discovery to that for which “good cause” has been shown, as provided in this paragraph. (b) A party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (a) of this section and prepared in anticipation of or for the hearing by or for another party's representative (including his or her attorney, consultant, surety, indemnitor, insurer, or agent) only upon showing that the party seeking discovery has substantial need of the materials or information in the preparation of his or her case and that he or she is unable without undue hardship to obtain the substantial equivalent of the materials or information by other means. In ordering discovery of such materials when the required showing has been made, the administrative law judge shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representatives of a party concerning the proceeding. | ||||
| 29:29:9.1.2.7.8.3.1.8 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | C | Subpart C—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(2) | § 2570.67 Summary decision. | PBGC | For 502(c)(2) civil penalty proceedings, this section shall apply in lieu of § 18.41 of this title. (a) No genuine issue of material of fact. (1) Where no issue of a material of fact is found to have been raised, the administrative law judge may issue a decision which, in the absence of an appeal pursuant to §§ 2570.69 through 2570.71 of this subpart, shall become a final order. (2) A decision made under this paragraph shall include a statement of: (i) Findings of fact and conclusions of law, and the reasons therefor, on all issues presented; and (ii) Any terms and conditions of the rule or order. (3) A copy of any decision under this paragraph shall be served on each party. (b) Hearings on issues of fact. Where a genuine question of material of fact is raised, the administrative law judge shall, and in any other case may, set the case for an evidentiary hearing. | ||||
| 29:29:9.1.2.7.8.3.1.9 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | C | Subpart C—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(2) | § 2570.68 Decision of the administrative law judge. | PBGC | For 502(c)(2) civil penalty proceedings, this section shall apply in lieu of § 18.57 of this title. (a) Proposed findings of fact, conclusions, and order. Within twenty (20) days of the filing of the transcript of the testimony of such additional time as the administrative law judge may allow, each party may file with the administrative law judge, subject to the judge's discretion, proposed findings of fact, conclusions of law, and order together with a supporting brief expressing the reasons for such proposals. Such proposals and briefs shall be served on all parties, and shall refer to all portions of the record and to all authorities relied upon in support of each proposal. (b) Decision of the administative law judge. Within a reasonable time after the time allowed for the filing of the proposed findings of fact, conclusions of law, and order, or within thirty (30) days after receipt of an agreement containing consent findings and order disposing of the disputed matter in whole, the administrative law judge shall make his or her decision. The decision of the administrative law judge shall include findings of fact and conclusions of law with reasons therefor upon each material issue of fact or law presented on the record. The decision of the administrative law judge shall be based upon the whole record. In a contested case in which the Department and the Respondent have presented their positions to the administrative law judge pursuant to the procedures for 502(c)(2) civil penalty proceedings as set forth in this subpart, the penalty (if any) which may be included in the decision of the administrative law judge shall be limited to the penalty expressly provided for in section 502(c)(2) of ERISA. It shall be supported by reliable and probative evidence. The decision of the administrative law judge shall become final agency action within the meaning of 5 U.S.C. 704 unless an appeal is made pursuant to the procedures set forth in §§ 2570.69 through 2570.71. | ||||
| 29:29:9.1.2.7.8.4.1.1 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | D | Subpart D—Procedure for the Assessment of Civil Penalties Under ERISA Section 502(l) | § 2570.80 Scope of rules. | PBGC | The rules of practice set forth in this subpart are applicable to “502(l) civil penalty proceedings” (as defined in § 2570.82 of this subpart) under section 502(l) of the Employee Retirement Income Security Act of 1974 (ERISA or the Act). Refer to 29 CFR 2560.502-1 for the definition of the relevant terms of ERISA section 502(l). | ||||
| 29:29:9.1.2.7.8.4.1.2 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | D | Subpart D—Procedure for the Assessment of Civil Penalties Under ERISA Section 502(l) | § 2570.81 In general. | PBGC | Section 502(l) of the Employee Retirement Income Security Act of 1974 (ERISA or the Act) requires the Secretary of Labor to assess a civil penalty against a fiduciary who breaches a fiduciary responsibility under, or commits any other violation of, part 4 of title I of ERISA or any other person who knowingly participates in such breach or violation. The penalty under section 502(l) is equal to 20 percent of the “applicable recovery amount” paid pursuant to any settlement agreement with the Secretary or ordered by a court to be paid in a judicial proceeding instituted by the Secretary under section 502 (a)(2) or (a)(5). The Secretary may, in the Secretary's sole discretion, waive or reduce the penalty if the Secretary determines in writing that: (a) The fiduciary or other person acted reasonably and in good faith, or (b) It is reasonable to expect that the fiduciary or other person will not be able to restore all losses to the plan or any participant or beneficiary of such plan without severe financial hardship unless such waiver or reduction is granted. The penalty imposed on a fiduciary or other person with respect to any transaction shall be reduced by the amount of any penalty or tax imposed on such fiduciary or other person with respect to such transaction under section 502(i) or section 4975 of the Internal Revenue Code of 1986 (the Code). | ||||
| 29:29:9.1.2.7.8.4.1.3 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | D | Subpart D—Procedure for the Assessment of Civil Penalties Under ERISA Section 502(l) | § 2570.82 Definitions. | PBGC | [55 FR 25286, June 20, 1990, as amended at 68 FR 16400, Apr. 3, 2003] | For purposes of this section: (a) 502(l) civil penalty proceedings means an adjudicatory proceeding relating to the assessment of a civil penalty provided in section 502(l) of ERISA; (b) Notice of assessment means any document, however designated, issued by the Secretary which contains a specified assessment, in monetary terms, of a civil penalty under ERISA section 502(l). A “notice of assessment” will contain a brief factual description of the violation for which the assessment is being made, the identity of the person being assessed, and the amount of the assessment and the basis for assessing that particular person that particular penalty amount; (c) Person includes an individual, partnership, corporation, employee benefit plan, association, exchange or other entity or organization; (d) Petition means a written request, made by a person, for a waiver or reduction of the civil penalty described herein; and (e) Secretary means the Secretary of Labor and includes, pursuant to any delegation of authority by the Secretary, the Assistant Secretary for Employee Benefits Security, Regional Directors for Employee Benefits Security, or Deputy Regional Directors for Employee Benefits Security. | |||
| 29:29:9.1.2.7.8.4.1.4 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | D | Subpart D—Procedure for the Assessment of Civil Penalties Under ERISA Section 502(l) | § 2570.83 Assessment of civil penalty. | PBGC | (a) Except as described in §§ 2570.85 and 2570.86 of this part, subsequent to the payment of the applicable recovery amount pursuant to either a settlement agreement or a court order, the Secretary shall serve on the person liable for making such payment a notice of assessment of civil penalty equal to 20 percent of the applicable recovery amount. (b) Service of such notice shall be made either: (1) By delivering a copy to the person being assessed; if the person is an individual, to the individual; if the person is a partnership, to any partner; if the person is a corporation, association, exchange, or other entity or organization, to any officer of such entity; if the person is an employee benefit plan, to a trustee of such plan; or to any attorney representing any such person; (2) By leaving a copy at the principal office, place of business, or residence of such individual, partner, officer, trustee, or attorney; or (3) By mailing a copy to the last known address of such individual, partner, officer, trustee, or attorney. If service is accomplished by certified mail, service is complete upon mailing. If done by regular mail, service is complete upon receipt by the addressee. | ||||
| 29:29:9.1.2.7.8.4.1.5 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | D | Subpart D—Procedure for the Assessment of Civil Penalties Under ERISA Section 502(l) | § 2570.84 Payment of civil penalty. | PBGC | (a) The civil penalty must be paid within 60 days of service of the notice of assessment. (b) At any time prior to the expiration of the payment period for the assessed penalty, any person who has committed, or knowingly participated in, a breach or violation, or has been alleged by the Secretary to have so committed or participated, may submit a written request for a conference with the Secretary to discuss the calculation of the assessed penalty. A person will be entitled under this section to one such conference per assessment. If such written request is submitted during the 60 day payment period described in subparagraph (a), such a request will not toll the running of that payment period. (c) The notice of assessment will become a final order (within the meaning of 5 U.S.C. 704) on the first day following the 60 day payment period, subject to any tolling caused by a petition to waive or reduce described in § 2570.85. | ||||
| 29:29:9.1.2.7.8.4.1.6 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | D | Subpart D—Procedure for the Assessment of Civil Penalties Under ERISA Section 502(l) | § 2570.85 Waiver or reduction of civil penalty. | PBGC | (a) At any time prior to the expiration of the payment period for the assessed penalty, any person who has committed, or knowingly participated in, a breach or violation, or has been alleged by the Secretary to have so committed or participated, may petition the Secretary to waive or reduce the penalty under this section on the basis that: (1) The person acted reasonably and in good faith in engaging in the breach or violation; or (2) The person will not be able to restore all losses to the plan or participant or beneficiary of such plan without severe financial hardship unless such waiver or reduction is granted. (b) All petitions for waiver or reduction shall be in writing and contain the following information: (1) The name of the petitioner(s); (2) A detailed description of the breach or violation which is the subject of the penalty; (3) A detailed recitation of the facts which support one, or both, of the bases for waiver or reduction described in § 2570.85(a) of this part, accompanied by underlying documentation supporting such factual allegations; (4) A declaration, signed and dated by the petitioner(s), in the following form: Under penalty of perjury, I declare that, to the best of my knowledge and belief, the representations made in this petition are true and correct. Under penalty of perjury, I declare that, to the best of my knowledge and belief, the representations made in this petition are true and correct. (c) If a petition for waiver or reduction is submitted during the 60 day payment period described in § 2570.84(a) of this part, the payment period for the penalty in question will be tolled pending Departmental consideration of the petition. During such consideration, the applicant is entitled to one conference with the Secretary, but the Secretary, in his or her sole discretion, may schedule or hold additional conferences with the petitioner concerning the factual allegations contained in the petition. (d) Based solely on his or her discretion, the Secretary will determine whether to gr… | ||||
| 29:29:9.1.2.7.8.4.1.7 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | D | Subpart D—Procedure for the Assessment of Civil Penalties Under ERISA Section 502(l) | § 2570.86 Reduction of penalty by other penalty assessments. | PBGC | The penalty assessed on a person pursuant to this section with respect to any transaction shall be reduced by the amount of any penalty or tax imposed on such person with respect to such transaction under ERISA section 502(i) and section 4975 of the Code. Prior to a reduction of penalty under this paragraph, the person being assessed must provide proof to the Department of the payment of the penalty or tax and the amount of that payment. Submissions of proof of other penalty or tax assessments will not toll the 60 day payment period, if previously initiated. | ||||
| 29:29:9.1.2.7.8.4.1.8 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | D | Subpart D—Procedure for the Assessment of Civil Penalties Under ERISA Section 502(l) | § 2570.87 Revision of assessment. | PBGC | If, based on the procedures described in § 2570.84, 2570.85, or 2570.86, the assessed penalty amount is revised, the person being assessed will receive a revised notice of assessment and will be obligated to pay the revised assessed penalty within the relevant 60 day payment period (as determined by the applicable procedure in § 2570.84, 2570.85, or 2570.86), and, if necessary, any excess penalty payment will be refunded as soon as administratively feasible. The revised notice of assessment will revoke any previously issued notice of assessment with regard to the transaction in question and will become a final order (within the meaning of 5 U.S.C. 704) the later of the first day following the 60 day payment period or the date of its service on the person being assessed, pursuant to the service procedures described in § 2570.83(b). | ||||
| 29:29:9.1.2.7.8.4.1.9 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | D | Subpart D—Procedure for the Assessment of Civil Penalties Under ERISA Section 502(l) | § 2570.88 Effective date. | PBGC | This section is effective June 20, 1990, and shall apply to assessments under section 502(l) made by the Secretary after June 20, 1990, based on any breach or violation occurring on or after December 19, 1989. | ||||
| 29:29:9.1.2.7.8.5.1.1 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | E | Subpart E—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(5) | § 2570.90 Scope of rules. | PBGC | The rules of practice set forth in this subpart are applicable to “502(c)(5) civil penalty proceedings” (as defined in 2570.91(n)) under section 502(c)(5) of the Employee Retirement Income Security Act of 1974. The rules of procedure for administrative hearings published by the Department's Office of Administrative Law Judges in subpart A of 29 CFR part 18 will apply to matters arising under ERISA section 502(c)(5) except as described by this section. These proceedings shall be conducted as expeditiously as possible, and the parties shall make every effort to avoid delay at each stage of the proceedings. | ||||
| 29:29:9.1.2.7.8.5.1.10 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | E | Subpart E—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(5) | § 2570.99 Review by the Secretary. | PBGC | (a) The Secretary may review a decision of an administrative law judge. Such a review may occur only when a party files a notice of appeal from a decision of an administrative law judge within twenty (20) days of the issuance of such decision. In all other cases, the decision of the administrative law judge shall become final agency action within the meaning of 5 U.S.C. 704. (b) A notice of appeal to the Secretary shall state with specificity the issue(s) in the decision of the administrative law judge on which the party is seeking review. Such notice of appeal must be served on all parties of record. (c) Upon receipt of a notice of appeal, the Secretary shall request the Chief Administrative Law Judge to submit to him or her a copy of the entire record before the administrative law judge. | ||||
| 29:29:9.1.2.7.8.5.1.11 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | E | Subpart E—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(5) | § 2570.100 Scope of review. | PBGC | The review of the Secretary shall not be a de novo proceeding but rather a review of the record established before the administrative law judge. There shall be no opportunity for oral argument. | ||||
| 29:29:9.1.2.7.8.5.1.12 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | E | Subpart E—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(5) | § 2570.101 Procedures for review by the Secretary. | PBGC | (a) Upon receipt of the notice of appeal, the Secretary shall establish a briefing schedule which shall be served on all parties of record. Upon motion of one or more of the parties, the Secretary may, in his or her discretion, permit the submission of reply briefs. (b) The Secretary shall issue a decision as promptly as possible after receipt of the briefs of the parties. The Secretary may affirm, modify, or set aside, in whole or in part, the decision on appeal and shall issue a statement of reasons and bases for the action(s) taken. Such decision by the Secretary shall be final agency action within the meaning of 5 U.S.C. 704. | ||||
| 29:29:9.1.2.7.8.5.1.2 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | E | Subpart E—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(5) | § 2570.91 Definitions. | PBGC | For 502(c)(5) civil penalty proceedings, this section shall apply in lieu of the definitions in § 18.2 of this title. (a) Adjudicatory proceeding means a judicial-type proceeding before an administrative law judge leading to the formulation of a final order; (b) Administrative law judge means an administrative law judge appointed pursuant to the provisions of 5 U.S.C. 3105; (c) Answer means a written statement that is supported by reference to specific circumstances or facts surrounding the notice of determination issued pursuant to 29 CFR 2560.502c-5(g); (d) Commencement of proceeding is the filing of an answer by the respondent; (e) Consent agreement means any written document containing a specified proposed remedy or other relief acceptable to the Department and consenting parties; (f) ERISA means the Employee Retirement Income Security Act of 1974, as amended; (g) Final order means the final decision or action of the Department of Labor concerning the assessment of a civil penalty under ERISA section 502(c)(5) against a particular party. Such final order may result from a decision of an administrative law judge or the Secretary, the failure of a party to file a statement of reasonable cause described in 29 CFR 2560.502c-5(e) within the prescribed time limits, or the failure of a party to invoke the procedures for hearings or appeals under this title within the prescribed time limits. Such a final order shall constitute final agency action within the meaning of 5 U.S.C. 704; (h) Hearing means that part of a proceeding which involves the submission of evidence, either by oral presentation or written submission, to the administrative law judge; (i) Order means the whole or any part of a final procedural or substantive disposition of a matter under ERISA section 502(c)(5); (j) Party includes a person or agency named or admitted as a party to a proceeding; (k) Person includes an individual, partnership, corporation, employee benefit plan, association, exchange, or other entity or o… | ||||
| 29:29:9.1.2.7.8.5.1.3 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | E | Subpart E—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(5) | § 2570.92 Service: Copies of documents and pleadings. | PBGC | For 502(c)(5) penalty proceedings, this section shall apply in lieu of 29 CFR 18.3. (a) In general. Copies of all documents shall be served on all parties of record. All documents should clearly designate the docket number, if any, and short title of all matters. All documents to be filed shall be delivered or mailed to the Chief Docket Clerk, Office of Administrative Law Judges (OALJ), 800 K Street, NW., Suite 400, Washington, DC 20001-8002, or to the OALJ Regional Office to which the proceeding may have been transferred for hearing. Each document filed shall be clear and legible. (b) By parties. All motions, petitions, pleadings, briefs, or other documents shall be filed with the Office of Administrative Law Judges with a copy, including any attachments, to all other parties of record. When a party is represented by an attorney, service shall be made upon the attorney. Service of any document upon any party may be made by personal delivery or by mailing a copy to the last known address. The Department shall be served by delivery to the Associate Solicitor, Plan Benefits Security Division, ERISA Section 502(c)(5) Proceeding, P.O. Box 1914, Washington, DC 20013. The person serving the document shall certify to the manner and date of service. (c) By the Office of Administrative Law Judges. Service of orders, decisions and all other documents shall be made by regular mail to the last known address. (d) Form of pleadings —(1) Every pleading shall contain information indicating the name of the Employee Benefits Security Administration (EBSA) as the agency under which the proceeding is instituted, the title of the proceeding, the docket number (if any) assigned by the Office of Administrative Law Judges and a designation of the type of pleading or paper (e.g., notice, motion to dismiss, etc.). The pleading or paper shall be signed and shall contain the address and telephone number of the party or person representing the party. Although there are no formal specifications for documents, they should be typewri… | ||||
| 29:29:9.1.2.7.8.5.1.4 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | E | Subpart E—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(5) | § 2570.93 Parties, how designated. | PBGC | For 502(c)(5) civil penalty proceedings, this section shall apply in lieu of 29 CFR 18.10. (a) The term party wherever used in this subpart shall include any natural person, corporation, employee benefit plan, association, firm, partnership, trustee, receiver, agency, public or private organization, or government agency. A party against whom a civil penalty is sought shall be designated as “respondent.” The Department shall be designated as the “complainant.” (b) Other persons or organizations shall be permitted to participate as parties only if the administrative law judge finds that the final decision could directly and adversely affect them or the class they represent, that they may contribute materially to the disposition of the proceedings and their interest is not adequately represented by existing parties, and that in the discretion of the administrative law judge the participation of such persons or organizations would be appropriate. (c) A person or organization not named as a respondent wishing to participate as a party under this section shall submit a petition to the administrative law judge within fifteen (15) days after the person or organization has knowledge of or should have known about the proceeding. The petition shall be filed with the administrative law judge and served on each person or organization who has been made a party at the time of filing. Such petition shall concisely state: (1) Petitioner's interest in the proceeding; (2) How his or her participation as a party will contribute materially to the disposition of the proceeding; (3) Who will appear for petitioner; (4) The issues on which petitioner wishes to participate; and (5) Whether petitioner intends to present witnesses. (d) Objections to the petition may be filed by a party within fifteen (15) days of the filing of the petition. If objections to the petition are filed, the administrative law judge shall then determine whether petitioners have the requisite interest to be a party in the proceedings, as defined in parag… | ||||
| 29:29:9.1.2.7.8.5.1.5 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | E | Subpart E—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(5) | § 2570.94 Consequences of default. | PBGC | For 502(c)(5) civil penalty proceedings, this section shall apply in lieu of 29 CFR 18.5(a) and (b). Failure of the respondent to file an answer to the notice of determination described in 29 CFR 2560.502c-5(g) within the 30 day period provided by 29 CFR 2560.502c-5(h) shall be deemed to constitute a waiver of his or her right to appear and contest the allegations of the notice of determination, and such failure shall be deemed to be an admission of the facts as alleged in the notice for purposes of any proceeding involving the assessment of a civil penalty under section 502(c)(5) of the Act. Such notice shall then become a final order of the Secretary, within the meaning of § 2570.91(g), forty-five (45) days from the date of the service of the notice. | ||||
| 29:29:9.1.2.7.8.5.1.6 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | E | Subpart E—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(5) | § 2570.95 Consent order or settlement. | PBGC | For 502(c)(5) civil penalty proceedings, the following shall apply in lieu of 29 CFR 18.9. (a) In general. At any time after the commencement of a proceeding, but at least five (5) days prior to the date set for hearing, the parties jointly may move to defer the hearing for a reasonable time to permit negotiation of a settlement or an agreement containing findings and an order disposing of the whole or any part of the proceeding. The allowance of such deferment and the duration thereof shall be in the discretion of the administrative law judge, after consideration of such factors as the nature of the proceeding, the requirements of the public interest, the representations of the parties and the probability of reaching an agreement which will result in a just disposition of the issues involved. (b) Content. Any agreement containing consent findings and an order disposing of a proceeding or any part thereof shall also provide: (1) That the order shall have the same force and effect as an order made after full hearing; (2) That the entire record on which any order may be based shall consist solely of the notice and the agreement; (3) A waiver of any further procedural steps before the administrative law judge; (4) A waiver of any right to challenge or contest the validity of the order and decision entered into in accordance with the agreement; and (5) That the order and decision of the administrative law judge shall be final agency action. (c) Submission. On or before the expiration of the time granted for negotiations, but, in any case, at least five (5) days prior to the date set for hearing, the parties or their authorized representative or their counsel may: (1) Submit the proposed agreement containing consent findings and an order to the administrative law judge; (2) Notify the administrative law judge that the parties have reached a full settlement and have agreed to dismissal of the action subject to compliance with the terms of the settlement; or (3) Inform the administrative law judge that … | ||||
| 29:29:9.1.2.7.8.5.1.7 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | E | Subpart E—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(5) | § 2570.96 Scope of discovery. | PBGC | For 502(c)(5) civil penalty proceedings, this section shall apply in lieu of 29 CFR 18.14. (a) A party may file a motion to conduct discovery with the administrative law judge. The motion for discovery shall be granted by the administrative law judge only upon a showing of good cause. In order to establish “good cause” for the purposes of this section, a party must show that the discovery requested relates to a genuine issue as to a material fact that is relevant to the proceeding. The order of the administrative law judge shall expressly limit the scope and terms of discovery to that for which “good cause” has been shown, as provided in this paragraph. (b) A party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (a) of this section and prepared in anticipation of or for the hearing by or for another party's representative (including his or her attorney, consultant, surety, indemnitor, insurer, or agent) only upon showing that the party seeking discovery has substantial need of the materials or information in the preparation of his or her case and that he or she is unable without undue hardship to obtain the substantial equivalent of the materials or information by other means. In ordering discovery of such materials when the required showing has been made, the administrative law judge shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the proceeding. | ||||
| 29:29:9.1.2.7.8.5.1.8 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | E | Subpart E—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(5) | § 2570.97 Summary decision. | PBGC | For 502(c)(5) civil penalty proceedings, this section shall apply in lieu of 29 CFR 18.41. (a) No genuine issue of material fact. (1) Where no issue of material fact is found to have been raised, the administrative law judge may issue a decision which, in the absence of an appeal pursuant to §§ 2570.99 through 2570.101, shall become a final order. (2) A decision made under this paragraph shall include a statement of: (i) Findings of fact and conclusions of law, and the reasons therefore, on all issues presented; and (ii) Any terms and conditions of the rule or order. (3) A copy of any decision under this paragraph shall be served on each party. (b) Hearings on issues of fact. Where a genuine question of material fact is raised, the administrative law judge shall, and in any other case may, set the case for an evidentiary hearing. | ||||
| 29:29:9.1.2.7.8.5.1.9 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | E | Subpart E—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(5) | § 2570.98 Decision of the administrative law judge. | PBGC | For 502(c)(5) civil penalty proceedings, this section shall apply in lieu of 29 CFR 18.57. (a) Proposed findings of fact, conclusions, and order. Within twenty (20) days of the filing of the transcript of the testimony or such additional time as the administrative law judge may allow, each party may file with the administrative law judge, subject to the judge's discretion, proposed findings of fact, conclusions of law, and an order together with a supporting brief expressing the reasons for such proposals. Such proposals and briefs shall be served on all parties, and shall refer to all portions of the record and to all authorities relied upon in support of each proposal. (b) Decision of the administrative law judge. Within a reasonable time after the time allowed for the filing of the proposed findings of fact, conclusions of law, and order, or within thirty (30) days after receipt of an agreement containing consent findings and an order disposing of the disputed matter in whole, the administrative law judge shall make his or her decision. The decision of the administrative law judge shall include findings of fact and conclusions of law with reasons therefor upon each material issue of fact or law presented on the record. The decision of the administrative law judge shall be based upon the whole record. In a contested case in which the Department and the Respondent have presented their positions to the administrative law judge pursuant to the procedures for 502(c)(5) civil penalty proceedings as set forth in this subpart, the penalty (if any) which may be included in the decision of the administrative law judge shall be limited to the penalty expressly provided for in section 502(c)(5) of ERISA. It shall be supported by reliable and probative evidence. The decision of the administrative law judge shall become a final agency action within the meaning of 5 U.S.C. 704 unless an appeal is made pursuant to the procedures set forth in §§ 2570.99 through 2570.101. | ||||
| 29:29:9.1.2.7.8.6.1.1 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | F | Subpart F—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(6) | § 2570.110 Scope of rules. | PBGC | The rules of practice set forth in this subpart are applicable to “502(c)(6) civil penalty proceedings” (as defined in § 2570.111(n) of this subpart) under section 502(c)(6) of the Employee Retirement Income Security Act of 1974. The rules of procedure for administrative hearings published by the Department's Office of Law Judges at Part 18 of this title will apply to matters arising under ERISA section 502(c)(6) except as modified by this section. These proceedings shall be conducted as expeditiously as possible, and the parties shall make every effort to avoid delay at each stage of the proceedings. | ||||
| 29:29:9.1.2.7.8.6.1.10 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | F | Subpart F—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(6) | § 2570.119 Review by the Secretary. | PBGC | (a) The Secretary may review a decision of an administrative law judge. Such a review may occur only when a party files a notice of appeal from a decision of an administrative law judge within twenty (20) days of the issuance of such decision. In all other cases, the decision of the administrative law judge shall become final agency action within the meaning of 5 U.S.C. 704. (b) A notice of appeal to the Secretary shall state with specificity the issue(s) in the decision of the administrative law judge on which the party is seeking review. Such notice of appeal must be served on all parties of record. (c) Upon receipt of a notice of appeal, the Secretary shall request the Chief Administrative Law Judge to submit to him or her a copy of the entire record before the administrative law judge. | ||||
| 29:29:9.1.2.7.8.6.1.11 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | F | Subpart F—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(6) | § 2570.120 Scope of review. | PBGC | The review of the Secretary shall not be a de novo proceeding but rather a review of the record established before the administrative law judge. There shall be no opportunity for oral argument. | ||||
| 29:29:9.1.2.7.8.6.1.12 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | F | Subpart F—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(6) | § 2570.121 Procedures for review by the Secretary. | PBGC | (a) Upon receipt of the notice of appeal, the Secretary shall establish a briefing schedule which shall be served on all parties of record. Upon motion of one or more of the parties, the Secretary may, in his or her discretion, permit the submission of reply briefs. (b) The Secretary shall issue a decision as promptly as possible after receipt of the briefs of the parties. The Secretary may affirm, modify, or set aside, in whole or in part, the decision on appeal and shall issue a statement of reasons and bases for the action(s) taken. Such decision by the Secretary shall be final agency action within the meaning of 5 U.S.C. 704. | ||||
| 29:29:9.1.2.7.8.6.1.2 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | F | Subpart F—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(6) | § 2570.111 Definitions. | PBGC | For section 502(c)(6) civil penalty proceedings, this section shall apply in lieu of the definitions in § 18.2 of this title: (a) Adjudicatory proceeding means a judicial-type proceeding before an administrative law judge leading to the formulation of a final order; (b) Administrative law judge means an administrative law judge appointed pursuant to the provisions of 5 U.S.C. 3105; (c) Answer means a written statement that is supported by reference to specific circumstances or facts surrounding the notice of determination issued pursuant to § 2560.502c-6(g) of this chapter; (d) Commencement of proceeding is the filing of an answer by the respondent; (e) Consent agreement means any written document containing a specified proposed remedy or other relief acceptable to the Department and consenting parties; (f) ERISA means the Employee Retirement Income Security Act of 1974, as amended; (g) Final order means the final decision or action of the Department of Labor concerning the assessment of a civil penalty under ERISA section 502(c)(6) against a particular party. Such final order may result from a decision of an administrative law judge or the Secretary, the failure of a party to file a statement of matters reasonably beyond the control of the plan administrator described in § 2560.502c-6(e) of this chapter within the prescribed time limits, or the failure of a party to invoke the procedures for hearings or appeals under this title within the prescribed time limits. Such a final order shall constitute final agency action within the meaning of 5 U.S.C. 704; (h) Hearing means that part of a proceeding which involves the submission of evidence, either by oral presentation or written submission, to the administrative law judge; (i) Order means the whole or any part of a final procedural or substantive disposition of a matter under ERISA section 502(c)(6); (j) Party includes a person or agency named or admitted as a party to a proceeding; (k) Person includes an individual, partnership, co… | ||||
| 29:29:9.1.2.7.8.6.1.3 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | F | Subpart F—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(6) | § 2570.112 Service: Copies of documents and pleadings. | PBGC | For 502(c)(6) penalty proceedings, this section shall apply in lieu of § 18.3 of this title. (a) General. Copies of all documents shall be served on all parties of record. All documents should clearly designate the docket number, if any, and short title of all matters. All documents to be filed shall be delivered or mailed to the Chief Docket Clerk, Office of Administrative Law Judges, 800 K Street, NW., Suite 400, Washington, DC 20001-8002, or to the OALJ Regional Office to which the proceeding may have been transferred for hearing. Each document filed shall be clear and legible. (b) By parties. All motions, petitions, pleadings, briefs, or other documents shall be filed with the Office of Administrative Law Judges with a copy, including any attachments, to all other parties of record. When a party is represented by an attorney, service shall be made upon the attorney. Service of any document upon any party may be made by personal delivery or by mailing a copy to the last known address. The Department shall be served by delivery to the Associate Solicitor, Plan Benefits Security Division, ERISA section 502(c)(6) Proceeding, P.O. Box 1914, Washington, DC 20013. The person serving the document shall certify to the manner and date of service. (c) By the Office of Administrative Law Judges. Service of orders, decisions and all other documents shall be made by regular mail to the last known address. (d) Form of pleadings. (1) Every pleading shall contain information indicating the name of the Employee Benefits Security Administration (EBSA) as the agency under which the proceeding is instituted, the title of the proceeding, the docket number (if any) assigned by the Office of Administrative Law Judges and a designation of the type of pleading or paper (e.g., notice, motion to dismiss, etc.). The pleading or paper shall be signed and shall contain the address and telephone number of the party or person representing the party. Although there are no formal specifications for documents, they should be typewri… | ||||
| 29:29:9.1.2.7.8.6.1.4 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | F | Subpart F—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(6) | § 2570.113 Parties, how designated. | PBGC | For 502(c)(6) civil penalty proceedings, this section shall apply in lieu of § 18.10 of this title. (a) The term “party” wherever used in this subpart shall include any natural person, corporation, employee benefit plan, association, firm, partnership, trustee, receiver, agency, public or private organization, or government agency. A party against whom a civil penalty is sought shall be designated as “respondent”. The Department shall be designated as the “complainant”. (b) Other persons or organizations shall be permitted to participate as parties only if the administrative law judge finds that the final decision could directly and adversely affect them or the class they represent, that they may contribute materially to the disposition of the proceedings and their interest is not adequately represented by existing parties, and that in the discretion of the administrative law judge the participation of such persons or organizations would be appropriate. (c) A person or organization not named as a respondent wishing to participate as a party under this section shall submit a petition to the administrative law judge within fifteen (15) days after the person or organization has knowledge of or should have known about the proceeding. The petition shall be filed with the administrative law judge and served on each person or organization who has been made a party at the time of filing. Such petition shall concisely state: (1) Petitioner's interest in the proceeding; (2) How his or her participation as a party will contribute materially to the disposition of the proceeding; (3) Who will appear for petitioner; (4) The issues on which petitioner wishes to participate; and (5) Whether petitioner intends to present witnesses. (d) Objections to the petition may be filed by a party within fifteen (15) days of the filing of the petition. If objections to the petition are filed, the administrative law judge shall then determine whether petitioner has the requisite interest to be a party in the proceedings, as defined i… | ||||
| 29:29:9.1.2.7.8.6.1.5 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | F | Subpart F—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(6) | § 2570.114 Consequences of default. | PBGC | [68 FR 3738, Jan. 24, 2003] | For 502(c)(6) civil penalty proceedings, this section shall apply in lieu of § 18.5(a) and (b) of this title. Failure of the respondent to file an answer to the notice of determination described in § 2560.502c-6(g) of this chapter within the 30 day period provided by § 2560.502c-6(h) of this chapter shall be deemed to constitute a waiver of his or her right to appear and contest the allegations of the notice of determination, and such failure shall be deemed to be an admission of the facts as alleged in the notice for purposes of any proceeding involving the assessment of a civil penalty under section 502(c)(6) of the Act. Such notice shall then become the final order of the Secretary, within the meaning of § 2570.111(g) of this subpart, forty-five (45) days from the date of service of the notice. | |||
| 29:29:9.1.2.7.8.6.1.6 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | F | Subpart F—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(6) | § 2570.115 Consent order or settlement. | PBGC | For 502(c)(6) civil penalty proceedings, the following shall apply in lieu of § 18.9 of this title. (a) General. At any time after the commencement of a proceeding, but at least five (5) days prior to the date set for hearing, the parties jointly may move to defer the hearing for a reasonable time to permit negotiation of a settlement or an agreement containing findings and an order disposing of the whole or any part of the proceeding. The allowance of such a deferral and the duration thereof shall be in the discretion of the administrative law judge, after consideration of such factors as the nature of the proceeding, the requirements of the public interest, the representations of the parties, and the probability of reaching an agreement which will result in a just disposition of the issues involved. (b) Content. Any agreement containing consent findings and an order disposing of a proceeding or any part thereof shall also provide: (1) That the order shall have the same force and effect as an order made after full hearing; (2) That the entire record on which any order may be based shall consist solely of the notice and the agreement; (3) A waiver of any further procedural steps before the administrative law judge; (4) A waiver of any right to challenge or contest the validity of the order and decision entered into in accordance with the agreement; and (5) That the order and decision of the administrative law judge shall be final agency action. (c) Submission. On or before the expiration of the time granted for negotiations, but, in any case, at least five (5) days prior to the date set for hearing, the parties or their authorized representative or their counsel may: (1) Submit the proposed agreement containing consent findings and an order to the administrative law judge; or (2) Notify the administrative law judge that the parties have reached a full settlement and have agreed to dismissal of the action subject to compliance with the terms of the settlement; or (3) Inform the administrative law … | ||||
| 29:29:9.1.2.7.8.6.1.7 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | F | Subpart F—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(6) | § 2570.116 Scope of discovery. | PBGC | For 502(c)(6) civil penalty proceedings, this section shall apply in lieu of § 18.14 of this title. (a) A party may file a motion to conduct discovery with the administrative law judge. The motion for discovery shall be granted by the administrative law judge only upon a showing of good cause. In order to establish “good cause” for the purposes of this section, a party must show that the discovery requested relates to a genuine issue as to a material fact that is relevant to the proceeding. The order of the administrative law judge shall expressly limit the scope and terms of discovery to that for which “good cause” has been shown, as provided in this paragraph. (b) A party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (a) of this section and prepared in anticipation of or for the hearing by or for another party's representative (including his or her attorney, consultant, surety, indemnitor, insurer, or agent) only upon showing that the party seeking discovery has substantial need of the materials or information in the preparation of his or her case and that he or she is unable without undue hardship to obtain the substantial equivalent of the materials or information by other means. In ordering discovery of such materials when the required showing has been made, the administrative law judge shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representatives of a party concerning the proceeding. | ||||
| 29:29:9.1.2.7.8.6.1.8 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | F | Subpart F—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(6) | § 2570.117 Summary decision. | PBGC | For 502(c)(6) civil penalty proceedings, this section shall apply in lieu of § 18.41 of this title. (a) No genuine issue of material fact. (1) Where no issue of a material fact is found to have been raised, the administrative law judge may issue a decision which, in the absence of an appeal pursuant to §§ 2570.119 through 2570.121 of this subpart, shall become a final order. (2) A decision made under this paragraph (a) shall include a statement of: (i) Findings of fact and conclusions of law, and the reasons therefor, on all issues presented; and (ii) Any terms and conditions of the rule or order. (3) A copy of any decision under this paragraph shall be served on each party. (b) Hearings on issues of fact. Where a genuine question of a material fact is raised, the administrative law judge shall, and in any other case may, set the case for an evidentiary hearing. | ||||
| 29:29:9.1.2.7.8.6.1.9 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | F | Subpart F—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(6) | § 2570.118 Decision of the administrative law judge. | PBGC | For 502(c)(6) civil penalty proceedings, this section shall apply in lieu of § 18.57 of this title. (a) Proposed findings of fact, conclusions, and order. Within twenty (20) days of the filing of the transcript of the testimony, or such additional time as the administrative law judge may allow, each party may file with the administrative law judge, subject to the judge's discretion, proposed findings of fact, conclusions of law, and order together with a supporting brief expressing the reasons for such proposals. Such proposals and briefs shall be served on all parties, and shall refer to all portions of the record and to all authorities relied upon in support of each proposal. (b) Decision of the administrative law judge. Within a reasonable time after the time allowed for the filing of the proposed findings of fact, conclusions of law, and order, or within 30 days after receipt of an agreement containing consent findings and order disposing of the disputed matter in whole, the administrative law judge shall make his or her decision. The decision of the administrative law judge shall include findings of fact and conclusions of law with reasons therefor upon each material issue of fact or law presented on the record. The decision of the administrative law judge shall be based upon the whole record. In a contested case in which the Department and the Respondent have presented their positions to the administrative law judge pursuant to the procedures for 502(c)(6) civil penalty proceedings as set forth in this subpart, the penalty (if any) which may be included in the decision of the administrative law judge shall be limited to the penalty expressly provided for in section 502(c)(6) of ERISA. It shall be supported by reliable and probative evidence. The decision of the administrative law judge shall become final agency action within the meaning of 5 U.S.C. 704 unless an appeal is made pursuant to the procedures set forth in §§ 2570.119 through 2570.121. | ||||
| 29:29:9.1.2.7.8.7.1.1 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | G | Subpart G—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(7) | § 2570.130 Scope of rules. | PBGC | The rules of practice set forth in this subpart are applicable to “502(c)(7) civil penalty proceedings” (as defined in § 2570.131(n) of this subpart) under section 502(c)(7) of the Employee Retirement Income Security Act of 1974, as amended (the Act). The rules of procedure for administrative hearings published by the Department's Office of Administrative Law Judges at Part 18 of this title will apply to matters arising under ERISA section 502(c)(7) except as modified by this subpart. These proceedings shall be conducted as expeditiously as possible, and the parties shall make every effort to avoid delay at each stage of the proceedings. | ||||
| 29:29:9.1.2.7.8.7.1.10 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | G | Subpart G—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(7) | § 2570.139 Review by the Secretary. | PBGC | (a) The Secretary may review a decision of an administrative law judge. Such a review may occur only when a party files a notice of appeal from a decision of an administrative law judge within twenty (20) days of the issuance of such decision. In all other cases, the decision of the administrative law judge shall become final agency action within the meaning of 5 U.S.C. 704. (b) A notice of appeal to the Secretary shall state with specificity the issue(s) in the decision of the administrative law judge on which the party is seeking review. Such notice of appeal must be served on all parties of record. (c) Upon receipt of a notice of appeal, the Secretary shall request the Chief Administrative Law Judge to submit to him or her a copy of the entire record before the administrative law judge. | ||||
| 29:29:9.1.2.7.8.7.1.11 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | G | Subpart G—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(7) | § 2570.140 Scope of review. | PBGC | The review of the Secretary shall not be a de novo proceeding but rather a review of the record established before the administrative law judge. There shall be no opportunity for oral argument. | ||||
| 29:29:9.1.2.7.8.7.1.12 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | G | Subpart G—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(7) | § 2570.141 Procedures for review by the Secretary. | PBGC | (a) Upon receipt of the notice of appeal, the Secretary shall establish a briefing schedule which shall be served on all parties of record. Upon motion of one or more of the parties, the Secretary may, in his or her discretion, permit the submission of reply briefs. (b) The Secretary shall issue a decision as promptly as possible after receipt of the briefs of the parties. The Secretary may affirm, modify, or set aside, in whole or in part, the decision on appeal and shall issue a statement of reasons and bases for the action(s) taken. Such decision by the Secretary shall be final agency action within the meaning of 5 U.S.C. 704. | ||||
| 29:29:9.1.2.7.8.7.1.2 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | G | Subpart G—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(7) | § 2570.131 Definitions. | PBGC | For 502(c)(7) civil penalty proceedings, this section shall apply in lieu of the definitions in § 18.2 of this title: (a) Adjudicatory proceeding means a judicial-type proceeding before an administrative law judge leading to the formulation of a final order; (b) Administrative law judge means an administrative law judge appointed pursuant to the provisions of 5 U.S.C. 3105; (c) Answer means a written statement that is supported by reference to specific circumstances or facts surrounding the notice of determination issued pursuant to § 2560.502c-7(g) of this chapter; (d) Commencement of proceeding is the filing of an answer by the respondent; (e) Consent agreement means any written document containing a specified proposed remedy or other relief acceptable to the Department and consenting parties; (f) ERISA means the Employee Retirement Income Security Act of 1974, as amended; (g) Final order means the final decision or action of the Department of Labor concerning the assessment of a civil penalty under ERISA section 502(c)(7) against a particular party. Such final order may result from a decision of an administrative law judge or the Secretary, the failure of a party to file a statement of reasonable cause described in § 2560.502c-7(e) of this chapter within the prescribed time limits, or the failure of a party to invoke the procedures for hearings or appeals under this title within the prescribed time limits. Such a final order shall constitute final agency action within the meaning of 5 U.S.C. 704; (h) Hearing means that part of a proceeding which involves the submission of evidence, by either oral presentation or written submission, to the administrative law judge; (i) Order means the whole or any part of a final procedural or substantive disposition of a matter under ERISA section 502(c)(7); (j) Party includes a person or agency named or admitted as a party to a proceeding; (k) Person includes an individual, partnership, corporation, employee benefit plan, association, exchange… | ||||
| 29:29:9.1.2.7.8.7.1.3 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | G | Subpart G—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(7) | § 2570.132 Service: Copies of documents and pleadings. | PBGC | For 502(c)(7) penalty proceedings, this section shall apply in lieu of § 18.3 of this title. (a) General. Copies of all documents shall be served on all parties of record. All documents should clearly designate the docket number, if any, and short title of all matters. All documents to be filed shall be delivered or mailed to the Chief Docket Clerk, Office of Administrative Law Judges, 800 K Street, NW., Suite 400, Washington, DC 20001-8002, or to the OALJ Regional Office to which the proceeding may have been transferred for hearing. Each document filed shall be clear and legible. (b) By parties. All motions, petitions, pleadings, briefs, or other documents shall be filed with the Office of Administrative Law Judges with a copy, including any attachments, to all other parties of record. When a party is represented by an attorney, service shall be made upon the attorney. Service of any document upon any party may be made by personal delivery or by mailing a copy to the last known address. The Department shall be served by delivery to the Associate Solicitor, Plan Benefits Security Division, ERISA section 502(c)(7) Proceeding, P.O. Box 1914, Washington, DC 20013. The person serving the document shall certify to the manner and date of service. (c) By the Office of Administrative Law Judges. Service of orders, decisions and all other documents shall be made by regular mail to the last known address. (d) Form of pleadings. (1) Every pleading shall contain information indicating the name of the Employee Benefits Security Administration (EBSA) as the agency under which the proceeding is instituted, the title of the proceeding, the docket number (if any) assigned by the Office of Administrative Law Judges and a designation of the type of pleading or paper (e.g., notice, motion to dismiss, etc.). The pleading or paper shall be signed and shall contain the address and telephone number of the party or person representing the party. Although there are no formal specifications for documents, they should be typewri… | ||||
| 29:29:9.1.2.7.8.7.1.4 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | G | Subpart G—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(7) | § 2570.133 Parties, how designated. | PBGC | For 502(c)(7) civil penalty proceedings, this section shall apply in lieu of § 18.10 of this title. (a) The term “party” wherever used in this subpart shall include any natural person, corporation, employee benefit plan, association, firm, partnership, trustee, receiver, agency, public or private organization, or government agency. A party against whom a civil penalty is sought shall be designated as “respondent.” The Department shall be designated as the “complainant.” (b) Other persons or organizations shall be permitted to participate as parties only if the administrative law judge finds that the final decision could directly and adversely affect them or the class they represent, that they may contribute materially to the disposition of the proceedings and their interest is not adequately represented by existing parties, and that in the discretion of the administrative law judge the participation of such persons or organizations would be appropriate. (c) A person or organization not named as a respondent wishing to participate as a party under this section shall submit a petition to the administrative law judge within fifteen (15) days after the person or organization has knowledge of or should have known about the proceeding. The petition shall be filed with the administrative law judge and served on each person who or organization that has been made a party at the time of filing. Such petition shall concisely state: (1) Petitioner's interest in the proceeding; (2) How his or her participation as a party will contribute materially to the disposition of the proceeding; (3) Who will appear for petitioner; (4) The issues on which petitioner wishes to participate; and (5) Whether petitioner intends to present witnesses. (d) Objections to the petition may be filed by a party within fifteen (15) days of the filing of the petition. If objections to the petition are filed, the administrative law judge shall then determine whether petitioner has the requisite interest to be a party in the proceedings, as defi… | ||||
| 29:29:9.1.2.7.8.7.1.5 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | G | Subpart G—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(7) | § 2570.134 Consequences of default. | PBGC | For 502(c)(7) civil penalty proceedings, this section shall apply in lieu of § 18.5(a) and (b) of this title. Failure of the respondent to file an answer to the notice of determination described in § 2560.502c-7(g) of this chapter within the 30 day period provided by § 2560.502c-7(h) of this chapter shall be deemed to constitute a waiver of his or her right to appear and contest the allegations of the notice of determination, and such failure shall be deemed to be an admission of the facts as alleged in the notice for purposes of any proceeding involving the assessment of a civil penalty under section 502(c)(7) of the Act. Such notice shall then become the final order of the Secretary, within the meaning of § 2570.131(g) of this subpart, forty-five (45) days from the date of service of the notice. | ||||
| 29:29:9.1.2.7.8.7.1.6 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | G | Subpart G—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(7) | § 2570.135 Consent order or settlement. | PBGC | For 502(c)(7) civil penalty proceedings, the following shall apply in lieu of § 18.9 of this title. (a) General. At any time after the commencement of a proceeding, but at least five (5) days prior to the date set for hearing, the parties jointly may move to defer the hearing for a reasonable time to permit negotiation of a settlement or an agreement containing findings and an order disposing of the whole or any part of the proceeding. The allowance of such a deferral and the duration thereof shall be in the discretion of the administrative law judge, after consideration of such factors as the nature of the proceeding, the requirements of the public interest, the representations of the parties, and the probability of reaching an agreement which will result in a just disposition of the issues involved. (b) Content. Any agreement containing consent findings and an order disposing of a proceeding or any part thereof shall also provide: (1) That the order shall have the same force and effect as an order made after full hearing; (2) That the entire record on which any order may be based shall consist solely of the notice and the agreement; (3) A waiver of any further procedural steps before the administrative law judge; (4) A waiver of any right to challenge or contest the validity of the order and decision entered into in accordance with the agreement; and (5) That the order and decision of the administrative law judge shall be final agency action. (c) Submission. On or before the expiration of the time granted for negotiations, but, in any case, at least five (5) days prior to the date set for hearing, the parties or their authorized representative or their counsel may: (1) Submit the proposed agreement containing consent findings and an order to the administrative law judge; or (2) Notify the administrative law judge that the parties have reached a full settlement and have agreed to dismissal of the action subject to compliance with the terms of the settlement; or (3) Inform the administrative law … | ||||
| 29:29:9.1.2.7.8.7.1.7 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | G | Subpart G—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(7) | § 2570.136 Scope of discovery. | PBGC | For 502(c)(7) civil penalty proceedings, this section shall apply in lieu of § 18.14 of this title. (a) A party may file a motion to conduct discovery with the administrative law judge. The motion for discovery shall be granted by the administrative law judge only upon a showing of good cause. In order to establish “good cause” for the purposes of this section, a party must show that the discovery requested relates to a genuine issue as to a material fact that is relevant to the proceeding. The order of the administrative law judge shall expressly limit the scope and terms of discovery to that for which “good cause” has been shown, as provided in this paragraph. (b) A party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (a) of this section and prepared in anticipation of or for the hearing by or for another party's representative (including his or her attorney, consultant, surety, indemnitor, insurer, or agent) only upon showing that the party seeking discovery has substantial need of the materials or information in the preparation of his or her case and that he or she is unable without undue hardship to obtain the substantial equivalent of the materials or information by other means. In ordering discovery of such materials when the required showing has been made, the administrative law judge shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representatives of a party concerning the proceeding. | ||||
| 29:29:9.1.2.7.8.7.1.8 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | G | Subpart G—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(7) | § 2570.137 Summary decision. | PBGC | For 502(c)(7) civil penalty proceedings, this section shall apply in lieu of § 18.41 of this title. (a) No genuine issue of material fact. (1) Where no issue of a material fact is found to have been raised, the administrative law judge may issue a decision which, in the absence of an appeal pursuant to §§ 2570.139 through 2570.141 of this subpart, shall become a final order. (2) A decision made under paragraph (a) of this section shall include a statement of: (i) Findings of fact and conclusions of law, and the reasons therefor, on all issues presented; and (ii) Any terms and conditions of the rule or order. (3) A copy of any decision under this paragraph shall be served on each party. (b) Hearings on issues of fact. Where a genuine question of a material fact is raised, the administrative law judge shall, and in any other case may, set the case for an evidentiary hearing. | ||||
| 29:29:9.1.2.7.8.7.1.9 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | G | Subpart G—Procedures for the Assessment of Civil Penalties Under ERISA Section 502(c)(7) | § 2570.138 Decision of the administrative law judge. | PBGC | For 502(c)(7) civil penalty proceedings, this section shall apply in lieu of § 18.57 of this title. (a) Proposed findings of fact, conclusions, and order. Within twenty (20) days of the filing of the transcript of the testimony, or such additional time as the administrative law judge may allow, each party may file with the administrative law judge, subject to the judge's discretion, proposed findings of fact, conclusions of law, and order together with a supporting brief expressing the reasons for such proposals. Such proposals and briefs shall be served on all parties, and shall refer to all portions of the record and to all authorities relied upon in support of each proposal. (b) Decision of the administrative law judge. Within a reasonable time after the time allowed for the filing of the proposed findings of fact, conclusions of law, and order, or within thirty (30) days after receipt of an agreement containing consent findings and order disposing of the disputed matter in whole, the administrative law judge shall make his or her decision. The decision of the administrative law judge shall include findings of fact and conclusions of law with reasons therefor upon each material issue of fact or law presented on the record. The decision of the administrative law judge shall be based upon the whole record. In a contested case in which the Department and the Respondent have presented their positions to the administrative law judge pursuant to the procedures for 502(c)(7) civil penalty proceedings as set forth in this subpart, the penalty (if any) which may be included in the decision of the administrative law judge shall be limited to the penalty expressly provided for in section 502(c)(7) of ERISA. It shall be supported by reliable and probative evidence. The decision of the administrative law judge shall become final agency action within the meaning of 5 U.S.C. 704 unless an appeal is made pursuant to the procedures set forth in §§ 2570.139 through 2570.141 of this subpart. | ||||
| 29:29:9.1.2.7.8.8.1.1 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | H | Subpart H—Procedures for Issuance of Findings Under ERISA Sec. 3(40) | § 2570.150 Scope of rules. | PBGC | The rules of practice set forth in this subpart H apply to “section 3(40) Finding Proceedings” (as defined in § 2570.152(g)), under section 3(40) of the Employee Retirement Income Security Act of 1974 (ERISA or the Act). Refer to 29 CFR 2510.3-40 for the definition of relevant terms of section 3(40) of ERISA, 29 U.S.C. 1002(40). To the extent that the regulations in this subpart differ from the regulations in subpart A of 29 CFR part 18, the regulations in this subpart apply to matters arising under section 3(40) of ERISA rather than the rules of procedure for administrative hearings published by the Department's Office of Administrative Law Judges in subpart A of 29 CFR part 18. These proceedings shall be conducted as expeditiously as possible, and the parties shall make every effort to avoid delay at each stage of the proceedings. | ||||
| 29:29:9.1.2.7.8.8.1.10 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | H | Subpart H—Procedures for Issuance of Findings Under ERISA Sec. 3(40) | § 2570.159 Review by the Secretary. | PBGC | (a) A request for review by the Secretary of an appealable decision of the administrative law judge may be made by any party. Such a request must be filed within 20 days of the issuance of the final decision or the final decision of the administrative law judge will become the final agency order for purposes of 5 U.S.C. 701 et seq. (b) A request for review by the Secretary shall state with specificity the issue(s) in the administrative law judge's final decision upon which review is sought. The request shall be served on all parties to the proceeding. (c) The review by the Secretary shall not be a de novo proceeding but rather a review of the record established by the administrative law judge. (d) The Secretary may, in his or her discretion, allow the submission of supplemental briefs by the parties to the proceeding. (e) The Secretary shall issue a decision as promptly as possible, affirming, modifying, or setting aside, in whole or in part, the decision under review, and shall set forth a brief statement of reasons therefor. Such decision by the Secretary shall be the final agency action within the meaning of 5 U.S.C. 704. | ||||
| 29:29:9.1.2.7.8.8.1.2 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | H | Subpart H—Procedures for Issuance of Findings Under ERISA Sec. 3(40) | § 2570.151 In general. | PBGC | If there is an attempt to assert state jurisdiction or the application of state law, either by the issuance of a state administrative or court subpoena to, or the initiation of administrative or judicial proceedings against, a plan or other arrangement that alleges it is covered by title I of ERISA, 29 U.S.C. 1003, the plan or other arrangement may petition the Secretary to make a finding under section 3(40)(A)(i) of ERISA that it is a plan established or maintained under or pursuant to an agreement or agreements that the Secretary finds to be collective bargaining agreements for purposes of section 3(40) of ERISA. | ||||
| 29:29:9.1.2.7.8.8.1.3 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | H | Subpart H—Procedures for Issuance of Findings Under ERISA Sec. 3(40) | § 2570.152 Definitions. | PBGC | For section 3(40) Finding Proceedings, this section shall apply instead of the definitions in 29 CFR 18.2. (a) ERISA means the Employee Retirement Income Security Act of 1974, et seq., 29 U.S.C. 1001, et seq., as amended. (b) Order means the whole or part of a final procedural or substantive disposition by the administrative law judge of a matter under section 3(40) of ERISA. No order will be appealable to the Secretary except as provided in this subpart. (c) Petition means a written request under the procedures in this subpart for a finding by the Secretary under section 3(40) of ERISA that a plan is established or maintained under or pursuant to one or more collective bargaining agreements. (d) Petitioner means the plan or arrangement filing a petition. (e) Respondent means: (1) A state government instrumentality charged with enforcing the law that is alleged to apply or which has been identified as asserting jurisdiction over a plan or other arrangement, including any agency, commission, board, or committee charged with investigating and enforcing state insurance laws, including parties joined under § 2570.153; (2) The person or entity asserting that state law or state jurisdiction applies to the petitioner; (3) The Secretary of Labor; and (4) A state not named in the petition that has intervened under § 2570.153(b). (f) Secretary means the Secretary of Labor, and includes, pursuant to any delegation or sub-delegation of authority, the Assistant Secretary for Employee Benefits Security or other employee of the Employee Benefits Security Administration. (g) Section 3(40) Finding Proceeding means a proceeding before the Office of Administrative Law Judges (OALJ) relating to whether the Secretary finds an entity to be a plan to be established or maintained under or pursuant to one or more collective bargaining agreements within the meaning of section 3(40) of ERISA. | ||||
| 29:29:9.1.2.7.8.8.1.4 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | H | Subpart H—Procedures for Issuance of Findings Under ERISA Sec. 3(40) | § 2570.153 Parties. | PBGC | For section 3(40) Finding Proceedings, this section shall apply instead of 29 CFR 18.10. (a) The term “party” with respect to a Section 3(40) Finding Proceeding means the petitioner and the respondents. (b) States not named in the petition may participate as parties in a Section 3(40) Finding Proceeding by notifying the OALJ and the other parties in writing prior to the date for filing a response to the petition. After the date for service of responses to the petition, a state not named in the petition may intervene as a party only with the consent of all parties or as otherwise ordered by the ALJ. (c) The Secretary of Labor shall be named as a “respondent” to all actions. (d) The failure of any party to comply with any order of the ALJ may, at the discretion of the ALJ, result in the denial of the opportunity to present evidence in the proceeding. | ||||
| 29:29:9.1.2.7.8.8.1.5 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | H | Subpart H—Procedures for Issuance of Findings Under ERISA Sec. 3(40) | § 2570.154 Filing and contents of petition. | PBGC | (a) A person seeking a finding under section 3(40) of ERISA must file a written petition by delivering or mailing it to the Chief Docket Clerk, Office of Administrative Law Judges (OALJ), 800 K Street, NW., Suite 400, Washington, DC 20001-8002, or by making a filing by any electronic means permitted under procedures established by the OALJ. (b) The petition shall— (1) Provide the name and address of the entity for which the petition is filed; (2) Provide the names and addresses of the plan administrator and plan sponsor(s) of the plan or other arrangement for which the finding is sought; (3) Identify the state or states whose law or jurisdiction the petitioner claims has been asserted over the petitioner, and provide the addresses and names of responsible officials; (4) Include affidavits or other written evidence showing that: (i) State jurisdiction has been asserted over or legal process commenced against the petitioner pursuant to state law; (ii) The petitioner is an employee welfare benefit plan as defined at section 3(1) of ERISA (29 U.S.C. 1002(1)) and 29 CFR 2510.3-1 and is covered by title I of ERISA ( see 29 U.S.C. 1003); (iii) The petitioner is established or maintained for the purpose of offering or providing benefits described in section 3(1) of ERISA (29 U.S.C. 1002(1)) to employees of two or more employers (including one or more self-employed individuals) or their beneficiaries; (iv) The petitioner satisfies the criteria in 29 CFR 2510.3-40(b); and (v) Service has been made as provided in § 2570.155. (5) The affidavits shall set forth such facts as would be admissible in evidence in a proceeding under 29 CFR part 18 and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The affidavit or other written evidence must set forth specific facts showing the factors required under paragraph (b)(4) of this section. | ||||
| 29:29:9.1.2.7.8.8.1.6 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | H | Subpart H—Procedures for Issuance of Findings Under ERISA Sec. 3(40) | § 2570.155 Service. | PBGC | For section 3(40) proceedings, this section shall apply instead of 29 CFR 18.3. (a) In general. Copies of all documents shall be served on all parties of record. All documents should clearly designate the docket number, if any, and short title of all matters. All documents to be filed shall be delivered or mailed to the Chief Docket Clerk, Office of Administrative Law Judges (OALJ), 800 K Street, NW., Suite 400, Washington, DC 20001-8002, or to the OALJ Regional Office to which the proceeding may have been transferred for hearing. Each document filed shall be clear and legible. (b) By parties. All motions, petitions, pleadings, briefs, or other documents shall be filed with the Office of Administrative Law Judges with a copy, including any attachments, to all other parties of record. When a party is represented by an attorney, service shall be made upon the attorney. Service of any document upon any party may be made by personal delivery or by mailing by first class, prepaid U.S. mail, a copy to the last known address. The Secretary shall be served by delivery to the Associate Solicitor, Plan Benefits Security Division, ERISA Section 3(40) Proceeding, PO Box 1914, Washington, DC 20013. The person serving the document shall certify to the manner and date of service. (c) By the Office of Administrative Law Judges. Service of orders, decisions and all other documents shall be made to all parties of record by regular mail to their last known address. (d) Form of pleadings (1) Every pleading shall contain information indicating the name of the Employee Benefits Security Administration (EBSA) as the agency under which the proceeding is instituted, the title of the proceeding, the docket number (if any) assigned by the OALJ and a designation of the type of pleading or paper (e.g., notice, motion to dismiss, etc.). The pleading or paper shall be signed and shall contain the address and telephone number of the party or person representing the party. Although there are no formal specifications for documents, th… | ||||
| 29:29:9.1.2.7.8.8.1.7 | 29 | Labor | XXV | G | 2570 | PART 2570—PROCEDURAL REGULATIONS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT | H | Subpart H—Procedures for Issuance of Findings Under ERISA Sec. 3(40) | § 2570.156 Expedited proceedings. | PBGC | For section 3(40) Finding Proceedings, this section shall apply instead of 29 CFR 18.42. (a) At any time after commencement of a proceeding, any party may move to advance the scheduling of a proceeding, including the time for conducting discovery. (b) Except when such proceedings are directed by the Chief Administrative Law Judge or the administrative law judge assigned, any party filing a motion under this section shall: (1) Make the motion in writing; (2) Describe the circumstances justifying advancement; (3) Describe the irreparable harm that would result if the motion is not granted; and (4) Incorporate in the motion affidavits to support any representations of fact. (c) Service of a motion under this section shall be accomplished by personal delivery, or by facsimile, followed by first class, prepaid, U.S. mail. Service is complete upon personal delivery or mailing. (d) Except when such proceedings are required, or unless otherwise directed by the Chief Administrative Law Judge or the administrative law judge assigned, all parties to the proceeding in which the motion is filed shall have ten (10) days from the date of service of the motion to file an opposition in response to the motion. (e) Following the timely receipt by the administrative law judge of statements in response to the motion, the administrative law judge may advance pleading schedules, discovery schedules, prehearing conferences, and the hearing, as deemed appropriate; provided, however, that a hearing on the merits shall not be scheduled with less than five (5) working days notice to the parties, unless all parties consent to an earlier hearing. (f) When an expedited hearing is held, the decision of the administrative law judge shall be issued within twenty (20) days after receipt of the transcript of any oral hearing or within twenty (20) days after the filing of all documentary evidence if no oral hearing is conducted. |
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CREATE TABLE cfr_sections (
section_id TEXT PRIMARY KEY,
title_number INTEGER,
title_name TEXT,
chapter TEXT,
subchapter TEXT,
part_number TEXT,
part_name TEXT,
subpart TEXT,
subpart_name TEXT,
section_number TEXT,
section_heading TEXT,
agency TEXT,
authority TEXT,
source_citation TEXT,
amendment_citations TEXT,
full_text TEXT
);
CREATE INDEX idx_cfr_title ON cfr_sections(title_number);
CREATE INDEX idx_cfr_part ON cfr_sections(part_number);
CREATE INDEX idx_cfr_agency ON cfr_sections(agency);