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1. Purpose. The purpose of
establishing relationships with the federal financial and
other regulatory agencies is to facilitate EBSA exchange of
information and facilities with these agencies. Such exchanges
assist in developing and providing more efficient enforcement
activities and strategies in investigating employee benefit
plans, financial institutions, and other entities providing
services to employee benefit plans.
2. Background. Section 3004(b) of
ERISA provides that the Secretary may utilize the facilities
or services of any department, agency, or establishment of the
United States, with the lawful consent of such department,
agency, or establishment to obtain information and facilities,
to the extent permitted by law, as the Secretary may require
in the performance of his functions under ERISA.
3. Federal Financial Institution
Regulatory Agencies. In February 2006, an interagency
agreement was signed between DOL and the federal financial
institution regulatory agencies(1), i.e., the Board of Governors
of the Federal Reserve System (FRB), the Federal Deposit
Insurance Corporation (FDIC), the National
Credit Union Administration (NCUA), the Office of the
Comptroller of the Currency (OCC), and Office of Thrift
Supervision (OTC), whereby those agencies
agreed to provide written notification to DOL of possible
violations of ERISA of a significant nature which are
discovered in the course of their supervision of the fiduciary
activities of institutions subject to their respective
jurisdictions (Figure 1). The functions of each of the
agencies are described in Figure 2.
a. Scope. The federal financial
institution regulatory agencies will provide written
notification to OE of possible violations of ERISA of a
significant nature, which are discovered in the course of
their supervision of fiduciary activities of institutions
subject to their respective jurisdictions. NCUA's
responsibility shall be limited to possible violations
disclosed in the examination of federal credit unions.
b. Definition of Significant
Violations. In situations where the financial
institution is neither a plan administrator nor a plan
sponsor as defined in ERISA section 3(16), a violation will
be considered significant when:
1) The violation either individually or
in combination with other questionable transactions
constitutes a potential loss of $100,000 or more and the
violation is related to section 404 of ERISA.
2) The potential violation involves the
breach of co-fiduciary responsibilities under section 405
of ERISA and the transaction amounts, individually or in
combination with other questionable transactions,
constitute $100,000 or more.
3) The potential violation relates to
sections 406 and 407(a) except where the threat of loss to
plan participants is de minimis.
4) The potential violation relates to
ERISA section 411 (prohibition against certain persons
holding certain positions with employee benefit plans).
5) The potential violation relates to
section 412 of ERISA (relating to bonding requirements)
but only as applicable to the financial institution
itself.
c. Definition of Significant
Violations where the Financial Institution is the Plan
Administrator or Plan Sponsor. In cases where a
financial institution also serves as plan administrator or
plan sponsor, in addition to all of the situations listed in
Paragraph 4 above, the federal financial institution
regulatory agencies will also provide written notification
to EBSA of any potential violations of part 1 of Title I of
ERISA relating to reporting and disclosure.
d. Contents of Written Notice. Any
written notice to EBSA by a federal financial institution
regulatory agency shall contain the following information:
1) The name of the financial
institution.
2) The name of the plan.
3) A brief description of the nature of
the possible violation and any corrective action with
regard to that violation requested by the federal
financial institution regulatory agency.
4) Any action initiated by the federal
financial institution regulatory agency with regard to
that violation. The written notification will, in all
cases, be directed to the Director of Enforcement, EBSA.
e. Confidentiality. All
information received from the federal financial institution
regulatory agencies pursuant to this agreement shall be
clearly identified as such by OE and, to the extent
permissible by law, will be held in strict confidence and
only used for investigative purposes. No other use of such
information shall be made without the express written
authorization of the agency which originally supplied the
information. All requests for disclosure of information
received pursuant to this agreement shall be immediately
referred to OE/DFO, which in appropriate cases will seek
permission of the agency which provided the information
prior to disclosure.
f. Regional Requests for Information.
Regional requests for information from a federal financial
institution regulatory agency will be made in writing to the
Director of Enforcement. OE will be responsible for
contacting the appropriate agency and obtaining permission
for the region to review the agency's file.
g. Disposition of Referrals. If a
case is opened, pursuant to a referral from a federal
financial institution, the RO should inform DFO of the case
opening and of the final disposition of that case. When the
RO already has a case open at the time of the referral, DFO
should be apprised of the case and its predication.
4. Securities and Exchange Commission.
The Securities and Exchange Commission (SEC) has established
procedures for granting access, on a limited basis, to the
SEC's non-public files.
a. RO requests for non-public information
from the SEC national office will be made in writing to the
Director of Enforcement. OE will be responsible for
contacting the SEC and obtaining permission for the RO to
review the agency's file.
b. Requests for non-public information
from the SEC Regional Offices should be made in writing
directly to the appropriate office. Public information may
be obtained directly from the appropriate SEC office.
5. Pension Benefit Guaranty Corporation.
RO investigators, with the approval of the Regional Director,
may contact Pension Benefit Guaranty Corporation (PBGC)
representatives directly to discuss PBGC referrals. Regional
requests for PBGC non-public documents must be submitted by RO
memorandum to OE for review and processing to PBGC. Any formal referrals to the PBGC must be done through DFO.
6. State Agencies. On May 14, 1990,
the Secretary wrote to each State Insurance Commissioner
underscoring the Department's commitment to strengthen efforts
to ensure maximum cooperation and coordination of enforcement
with the States.
a. Scope. Both federal and state
laws regulate multiple employer welfare arrangements (MEWAs).
The 1983 amendments to ERISA specifically granted authority
to the states to regulate MEWAs even though a particular
arrangement may be an ERISA covered plan.
b. Regional Coordination. The
Region will pursue cooperative arrangements with appropriate
agencies pursuant to which the Regions will share and
discuss information relating to open and closed MEWA cases.
The Region may also make documents, including documents
obtained by voluntary production or civil subpoena,
available to the state agency involved. Refer to Chapter 20
for further guidance in the release of investigative
material.
(Figure 1)
Procedures for Cooperation Between the
Federal Financial Institution Regulatory Agencies and the
Department of Labor in the Enforcement of the Employee
Retirement Income Security Act of 1974.
The Board of Governors of the Federal
Reserve System, Federal Deposit Insurance Corporation,
National Credit Union Administration, the Office of the
Comptroller of the Currency, and Office of Thrift Supervision
(the federal financial institution regulatory agencies) as
part of their supervision of the institutions regulated by
them, conduct examinations and perform other functions which
occasionally disclose violations of the Employee Retirement
Income Security Act of 1974 (ERISA). The Department of Labor (DOL)
is charged with the administration, interpretation, and
enforcement of standards of conduct and responsibility of
fiduciaries of employee benefit plans under ERISA.
Section 3004(b) of ERISA provides that the
Secretary of Labor may utilize the facilities or services of
any department, agency, or establishment of the United States,
with the lawful consent of such department, agency, or
establishment; and each department, agency or establishment of
the United States is authorized and directed to cooperate with
the Secretary of Labor and, to the extent permitted by law, to
provide such information and facilities as the Secretary may
request for his assistance in the performance of his functions
under ERISA. This agreement is executed pursuant to that
authority.
1. To the maximum extent consistent with
law and dependent upon the availability of resources, the
federal financial institution regulatory agencies shall
provide written notification to the DOL of possible violations
of ERISA of a significant nature, which are discovered in the
course of their supervision of institutions subject to their
respective jurisdiction.
2. A possible violation shall be considered
significant when, in the view of the appropriate federal
financial institution regulatory agency, it falls within the
following circumstances:
a. Where the financial institution does
not serve as plan administrator or plan sponsor, as those
terms are defined in ERISA Section 3(16), possible
violations of:
(1) Title I, Part 4, Section 404,
relating to fiduciary duties (including transactions
directed by named fiduciaries or qualified investment
managers), except where the transaction amounts,
individually or in combination with other questionable
transactions, constitute less than $100,000;
(2) Title I, part 4, Section 405,
relating to liability for breach of co-fiduciary duties
(including transactions directed by named fiduciaries or
qualified investment managers), except where the
transaction amounts, individually or in combination with
other questionable transactions, constitute less than
$100,000;
(3) Title I, Part 4, Sections 406 and
407(a), relating to prohibited transactions, except where
the threat of loss to the plan participants is de minimis;
(4) Title I, Part 4, Section 411,
relating to prohibition against certain persons holding
certain positions;
(5) Title I, Part 4, Section 412,
relating to the bonding requirements as applicable to the
financial institution itself.
b. Where the financial institution, in
respect to a plan, also serves as plan administrator or plan
sponsor, the agencies shall provide written notification of
possible violations of the ERISA sections enumerated in a.
above and, in addition, shall provide written notification
of possible violations of Title I, Part 1 of ERISA relating
to reporting and disclosure.
3. The written notification to the DOL
shall include the following:
a. The name of the financial institution.
b. The name of the plan.
c. A brief description of the nature of
the possible violation, and any corrective action requested
by the federal financial institution regulatory agency
and/or initiated by the federal financial institution
regulatory agency.
4. The DOL agrees that any information
received from the federal financial institution regulatory
agencies pursuant to this agreement shall, to the extent
permissible by law, be held in strict confidence and may be
used for investigative purposes only; and that no other use of
such information shall be made without the express written
authorization of the agency that supplied such information,
except as required by law..
5. The written notification shall be sent
to the Director of Enforcement, Employee
Benefits Security Administration, U.S. Department of Labor,
Washington, D.C. 20210.
For The Federal Financial Institution
Regulatory Agencies |
Date: February 23, 2006
/s/ Jennifer J. Johnson
Secretary
Board of Governors of the
Federal Reserve System |
Date: February 8, 2006
/s/ Christopher J. Spoth
Acting Director
Division of Supervision and Consumer Compliance
Federal Deposit Insurance Corporation |
Date: March 1, 2006
/s/ David M. Marquis
Director, Office of Examination and Insurance
National Credit Union Administration |
Date: February 13, 2006
/s/ Emory W. Rushton
Senior Deputy Comptroller and Chief National Bank Examiner
Office of the Comptroller of the Currency |
Date: February 8, 2006
/s/ Scott M. Albinson
Managing Director
Examinations, Supervision and Consumer Protection
Office of Thrift Supervision |
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For the Department of Labor |
January 26, 2006
/s/ Ann L. Combs
Assistant Secretary of Labor
Employee Benefits Security Administration |
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(Figure 2)
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examines, supervises,
and regulates state member banks, bank holding companies,
and Edge and agreement corporations; approves or denies
applications for mergers, acquisitions and change in
control by state member banks and bank holding companies;
and
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approves or denies
applications for foreign operations of member banks and
has residual supervisory responsibility for U.S. offices
of foreign banks.
Implementation of policy decisions is
carried out by the FRB and by the twelve Federal Reserve
Banks, each of which has operational responsibility within a
specific geographical area. Each Reserve Bank has a president
and other officers and employs a staff of bank examiners who
examine state member banks and inspect bank holding companies
located within the Reserve Bank's district. All national banks
must be members of the Federal Reserve System. State-chartered
banks may apply and be accepted for membership.
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provides deposit
insurance for commercial banks, certain federal savings
banks, and state-chartered savings banks;
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supervises FDIC-insured,
state-chartered commercial and savings banks that
are not members of the Federal Reserve System; and
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serves as receiver or
liquidator of all closed national banks and as receiver of
closed insured state-chartered banks.
The bank supervision functions of the FDIC
are shared with state and other federal authorities. All
national banks and state banks that are members of the Federal
Reserve System must be insured by the FDIC. Nonmember state
banks may apply for FDIC deposit insurance. The FDIC examines
and supervises those banks under its purview, approves or
denies applications for structural or corporate changes, and
rules on applications for insurance.
The FDIC is organized geographically into
nine regions, each of which is headed by a regional director.
The OTS, pursuant to the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA),
succeeded the FHLBB. The OTS provides for the examination,
safe and sound operation, and regulation of Federal savings
associations, including Federal savings banks; issues
charters; enforces the regulatory authority of the FIRRE Act,
section 8 of the FDIC Act, and the regulations prescribed
thereunder; and makes such examinations of savings association
affiliates as are necessary to disclose fully the
relationships between such savings associations and affiliates
and the effect of such relations upon the saving association.
The purpose of the NCUA is to charter,
examine, supervise, and insure the nation's nearly 10,000
federal credit unions. In addition, NCUA also provides
insurance for member accounts at 4,980 state-chartered
credit unions.
The major responsibilities of the NCUA are:
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chartering, supervising,
and examining federal credit unions;
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administering the
National Credit Union Share Insurance Fund (NCUSIF); and
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managing the Central
Liquidity Facility.
The NCUA also has statutory authority to
examine and supervise NCUSIF-insured, state-chartered
credit unions, which it does in coordination with state
agencies.
The OCC is the regulator and supervisor of
the national banking system. The OCC is the only federal
banking agency with authority to charter commercial banks. The
OCC has authority to approve or deny applications for new bank
charters, the establishment of branches, and mergers of
national banks.
The principal supervisory tools of the OCC
are on-site supervisory activities and detailed off-site
analysis of national bank operations. As appropriate, the OCC
issues rules and regulations concerning bank lending, bank
investment, and other aspects of bank operations.
The OCC is organized geographically into
six districts, each headed by a Deputy Comptroller.
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This replaces the prior
agreement, which was signed in December 1980.
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