Delegation of Authority and Assignment of Responsibilities to the Employee Benefits Security Administration

[Federal Register: February 3, 2003 (Volume 68, Number 22)]
[Notices]
[Page 5373-5375]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03fe03-112]

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Part III
Department of Labor
Office of the Secretary

Delegation of Authority and Assignment of Responsibilities to the
Employee Benefits Security Administration; Notice

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DEPARTMENT OF LABOR
Office of the Secretary

[Secretary's Order 1-2003]

Delegation of Authority and Assignment of Responsibilities to the
Employee Benefits Security Administration


    1. Purpose. To delegate authority and assign responsibilities for
the administration of the Department of Labor's responsibilities under
the Employee Retirement Income Security Act of 1974 (ERISA), the
Welfare and Pension Plans Disclosure Act (WPPDA) and the Federal
Employees' Retirement System Act of 1986 (FERSA), and to change the
name of the Office of the Assistant Secretary for Pension and Welfare
Benefits and the Pension and Welfare Benefits Administration (PWBA).

    2. Authority and Directives Affected. This Order is issued pursuant
to 5 U.S.C. 301; 29 U.S.C. 551, et seq.; and 5 U.S.C. 5315. This order
supersedes Secretary's Order 1-87, 52 FR 13139 (Apr. 21, 1987), and the
memoranda to Meredith Miller, on Oct. 28, 1998, 63 FR 59339 (Nov. 3,
1998), and on Dec. 16, 1998, 63 FR 71506 (Dec. 28, 1998).

    3. Background. ERISA places responsibility in the Department of
Labor for the administration of a comprehensive program to protect the
interests of participants and beneficiaries of private sector employee
benefit plans.

    Secretary's Order 1-87 delegated authority for this program to the
Pension and Welfare Benefits Administration (PWBA), which was headed by
the Assistant Secretary for Pension and Welfare Benefits who reported
to the Secretary of Labor.

    FERSA requires the Department of Labor to, among other things,
administer and enforce the fiduciary responsibility, prohibited
transaction, and bonding provisions of FERSA. Secretary's Order 1-87
also delegated these responsibilities to PWBA.

    In more recent years, statutes such as the Health Insurance
Portability and Accountability Act of 1996 (HIPAA), the Newborns' and
Mothers' Health Protection Act of 1996, the Mental Health Parity Act of
1996, the Women's Health and Cancer Rights Act of 1998 and the Child
Support Performance and Incentive Act of 1998 amended ERISA. Pursuant
to Secretary's Order 1-87, PWBA has carried out the Department's
additional responsibilities under these Acts.

    Changing the agency's name to the Employee Benefits Security
Administration (EBSA) will more clearly communicate the agency's
mission of protecting private sector employee benefits. Restating the
delegations contained in Secretary's Order 1-87, and including an
additional delegation regarding claims of governmental privileges,
previously published separately, will provide a single source for
questions regarding the Assistant Secretary's current authority and
responsibility.

    4. Re-Designation of the Assistant Secretary for Pension and
Welfare Benefits and the Pension and Welfare Benefits Administration.

    a. The title and position of Assistant Secretary for Pension and
Welfare Benefits is re-designated Assistant Secretary for Employee
Benefits Security. The Office of the Assistant Secretary for Pension
and Welfare Benefits is re-designated the Office of the Assistant
Secretary for Employee Benefits Security, and

    b. The Pension and Welfare Benefits Administration is re-designated
as the Employee Benefits Security Administration.

    c. All offices, subdivisions and positions within the Department of
Labor deriving their names in whole, or in part, from the Office of the
Assistant Secretary for Pension and Welfare Benefits or the Pension and
Welfare Benefits Administration shall accomplish an appropriate change
of name pursuant to this order.

    d. All employees of the Office of the Assistant Secretary for
Pension and Welfare Benefits and the Pension and Welfare Benefits
Administration are re-designated employees of the Office of the
Assistant Secretary for Employee Benefits Security or the Employee
Benefits Security Administration, respectively.

    e. All programs, activities, functions, and responsibilities
delegated to the Office of the Assistant Secretary for Pension and
Welfare Benefits or the Pension and Welfare Benefits Administration are
re-designated programs, activities, functions and responsibilities of
the Office of the Assistant Secretary for Employee Benefits Security or
the Employee Benefits Security Administration, respectively.

    f. All currently effective delegations made by the Assistant
Secretary for Pension and Welfare Benefits to employees of the Pension
and Welfare Benefits Administration are deemed delegations by the
Assistant Secretary for Employee Benefits Security to employees of the
Employee Benefits Security Administration.

    g. Other agencies within the Department of Labor shall make any
appropriate re-designation in conformity with the spirit and purpose of
this order.

    5. Delegation of Authority and Assignment of Responsibilities. a.
Except as hereinafter provided, the Assistant Secretary for Employee
Benefits Security is delegated the authority (including the authority
to re-delegate) and assigned the responsibilities of the Secretary of
Labor:

    (1) Under the following statutes, including any amendments:

    (i) The Employee Retirement Income Security Act of 1974, as
amended, except for subtitle C of title III and title IV (29 U.S.C.
1001-1232);

    (ii) The Welfare and Pension Plans Disclosure Act of 1958, as
amended Pub. L. 85-836, 72 Stat. 997; Pub. L. 86-624, 74 Stat. 417;
Pub. L. 87-420, 76 Stat. 35.

    (iii) The Federal Employees' Retirement System Act of 1986 (5
U.S.C. 8401-8479); and

    (iv) As directed by the Secretary, such additional Federal acts
similar to or related to those listed in paragraphs (i) through (iii),
above, that from time to time may assign additional authority or
responsibilities to the Secretary.

    (2) To request information the Internal Revenue Service (IRS)
possesses for use in connection with the administration of title I of
ERISA of 1974.

    (3) To invoke all appropriate governmental privileges, arising from
the functions of the Employee Benefits Security Administration,
following his/her personal consideration of the matter and in
accordance with the following guidelines:

    (i) Generally Applicable Guidelines. The Assistant Secretary may
not re-delegate the authority to invoke a privilege. The privilege may
be asserted only with respect to specifically described information and
only where the Assistant Secretary determines the privilege is
applicable. In asserting a privilege, the Assistant Secretary shall
articulate in writing specific reasons for preserving the
confidentiality of the information.

    (ii) Informant's Privilege (to protect from disclosure the identity
of any person who has provided information to the Employee Benefits
Security Administration in cases arising under the statutory provisions
listed in paragraph 5.a.(1) of this order that are delegated or
assigned to the Employee Benefits Security Administration). To assert
this privilege, the Assistant Secretary must first determine that
disclosure of the privileged matter may: (A) Interfere with the
Employee Benefits Security Administration's enforcement


[[Page 5375]]


of a particular statute for which it exercises investigative or
enforcement authority; (B) adversely affect persons who have provided
information to the Employee Benefits Security Administration; or (C)
deter other persons from reporting violations of the statute.

    (iii) Deliberative Process Privilege (to withhold information which
may disclose pre-decisional intra-agency or inter-agency deliberations
in cases arising under the statutory provisions listed in paragraph
5.a.(1) of this order including: The analysis and evaluation of facts;
written summaries of factual evidence; and recommendations, opinions,
or advice on legal or policy matters). To assert this privilege, the
Assistant Secretary must first determine that: (A) The information is
not purely factual and does not concern recommendations that the
department expressly adopted or incorporated by reference in its
ultimate decision; (B) the information was generated prior to and in
contemplation of a decision by a part of the Department; and (C)
disclosure of the information would have an inhibiting effect on the
Department's decision-making processes.

    (iv) Privilege for Investigative Files compiled for law enforcement
purposes (to withhold information which may reveal the Employee
Benefits Security Administration's confidential investigative
techniques and procedures). To assert this privilege, the Assistant
Secretary must first determine that disclosure of the privileged matter
may have an adverse impact upon the Employee Benefits Security
Administration's enforcement of the statutory provisions listed in
paragraph 5.a.(1) of this order, by: (A) Disclosing investigative
techniques and methodologies; (B) deterring persons from providing
information to the Employee Benefits Security Administration; (C)
prematurely revealing the facts of the Department's case; or (D)
disclosing the identities of persons who have provided information
under an express or implied promise of confidentiality.

    (v) Prior to filing a formal claim of privilege, the Assistant
Secretary shall personally review the information sought to be
withheld, including all the documents sought to be withheld (or, in
cases where the volume of information is so large all of it cannot be
personally reviewed in a reasonable time, an adequate and
representative sample of such information) and a description or summary
of the litigation in which the disclosure is sought.

    (vi) The Assistant Secretary may comply with any additional
requirements imposed by local court rules or precedent in asserting a
governmental privilege.

    (vii) In asserting a governmental privilege, the Assistant
Secretary may ask the Solicitor of Labor or the Solicitor's
representative to prepare and file any necessary legal papers or
documents.

    b. The Solicitor of Labor is responsible for providing legal advice
and assistance to all officials of the Department relating to the
administration of the statutes listed in paragraph 5.a.(1) of this
order, for bringing appropriate legal actions on behalf of the
Secretary, and representing the Secretary in all civil proceedings. The
Solicitor of Labor is also authorized to request information the IRS
possesses for use in connection with the administration of title I of
ERISA.

    c. The Inspector General is authorized to request information the
IRS possesses for use in connection with the administration of title I
of ERISA.

    6. Reservation of Authority. a. The submission of reports and
recommendations to the President and the Congress concerning the
administration of the statutes listed in paragraph 5.a.(1) of this
order and responsibilities under subtitle C of title III of ERISA are
reserved to the Secretary. The Pension Benefit Guaranty Corporation
carries out responsibilities under title IV of ERISA.

    b. This Secretary's Order does not affect the authorities and
responsibilities of the Office of Inspector General under the Inspector
General Act of 1978, as amended, or under Secretary's Order 2-90
(January 31, 1990).

    7. Effective Date. This order is effective upon the date of
publication in the Federal Register.

Dated: January 23, 2003.



Elaine L. Chao,
Secretary of Labor.
[FR Doc. 03-2163 Filed 1-31-03; 8:45 am]

BILLING CODE 4510-23-P

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