On March 2, 2010, the Department of Labor ("DOL") issued final regulations under Section 101(k) of the Employee Retirement Income Security Act ("ERISA") governing when the administrator of a multiemployer pension plan must furnish copies of certain actuarial and financial reports and applications.

Congress added Section 101(k) to ERISA in 2006 as part of the Pension Protection Act of 2006. In general, Section 101(k) requires plan administrators of multiemployer pension plans to furnish certain information to plan participants, beneficiaries, employee representatives, or any employer that has an obligation to contribute to the plan upon written request. The information must be provided in written, electronic, or other appropriate form within thirty days after the request. Section 101(k) authorizes the plan administrator to assess a reasonable charge to cover the costs of copying, mailing, and furnishing copies of the requested information.

The final regulations provide guidance to plan administrators regarding to whom specified information must be furnished, the types of information that must be furnished, and the costs that may be assessed for furnishing requested information. Under the regulations, the administrator of a multiemployer pension plan must furnish copies of reports and applications to plan participants, beneficiaries, employee representatives, and contributing employers ("Requesting Parties"). The plan administrator must furnish the requested document(s) no later than thirty days after receiving a written request for such document(s). Documents must be furnished in a manner consistent with other ERISA regulations, and the plan administrator is permitted to provide documents using electronic media.

As a general rule, Requesting Parties are entitled to request and receive copies of the following documents:

• any periodic actuarial report;
• quarterly, semi-annual, or annual financial report prepared for the plan by any investment manager or advisor, or other fiduciary; and
• applications filed with the Secretary of the Treasury requesting an extension under ERISA Section 304 or Section 431(d) of the Internal Revenue Code of 1986, as amended (both of which relate to minimum funding standards for multiemployer plans).

For purposes of the regulations, "periodic actuarial reports" mean any:

• actuarial report prepared by an actuary of the plan and received by the plan at any regularly scheduled, recurring intervals; and
• study, test (including sensitivity test), document, analysis, or other information (regardless of whether it is called or labeled a "report") the plan received from a plan actuary that depicts alternative funding scenarios based on a range of alternative actuarial assumptions, whether or not such information is received by the plan at regularly scheduled, recurring intervals.

The regulations establish several exceptions to the general rule. For example, the reports and applications that are not required to be disclosed include:

• any report or application that was furnished to the Requesting Party within the twelve-month period immediately preceding the date on which the plan receives the request;
• any report or application that, as of the date on which the plan receives the request, has been in the plan's possession for six years or more;
• any periodic actuarial report or financial report that has not been in the plan's possession for at least thirty days;
• any individually identifiable information with respect to any plan participant, beneficiary, employee, fiduciary, or contributing employer; and
• proprietary information regarding the plan, any contributing employer, or entity providing services to the plan. For purposes of the regulations, the term "proprietary information" means trade secrets and other non-public information that, if disclosed, may cause, or increase a reasonable risk of, financial harm to the plan, a contributing employer, or entity providing services to the plan.

The final regulations establish how much a plan administrator may charge to cover the costs of furnishing documents. The plan administrator may impose a reasonable charge, but in no event may such charge exceed the actual cost of the plan for the least expensive means of reproducing the document(s), or twenty-five cents per page, whichever is less. In addition, the plan administrator may charge the cost of mailing or delivering the document(s).

Fraser Stryker is a leader in employee benefits law. Fraser Stryker attorneys routinely counsel clients on ERISA compliance and the operation, maintenance, and funding of multiemployer pension plans. For additional information regarding Fraser Stryker's comprehensive suite of employee benefits services, please contact attorneys in the Employee Benefits Practice Group: Brian Bartels, Beth Miller or Dan Wintz, (402) 341-6000.

This article is provided by Fraser Stryker for general informational purposes and is not intended to be and should not be construed as legal advice on any specific facts or circumstances.

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