Fiduciary Responsibility Under the Employee Retirement Income Security
Act of 1974 Automatic Rollover Safe Harbor; Final Rule [09/28/2004]
Volume 69, Number 187, Page 58017-58029
[[Page 58017]]
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Part III
Department of Labor
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Employee Benefits Security Administration
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29 CFR Part 2550
Fiduciary Responsibility Under the Employee Retirement Income Security
Act of 1974 Automatic Rollover Safe Harbor; Final Rule
[[Page 58018]]
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DEPARTMENT OF LABOR
Employee Benefits Security Administration
29 CFR Part 2550
RIN 1210-AA92
Fiduciary Responsibility Under the Employee Retirement Income
Security Act of 1974 Automatic Rollover Safe Harbor
AGENCY: Employee Benefits Security Administration, Labor.
ACTION: Final rule.
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SUMMARY: This document contains a final regulation that establishes a
safe harbor pursuant to which a fiduciary of a pension plan subject to
Title I of the Employee Retirement Income Security Act of 1974, as
amended (ERISA), will be deemed to have satisfied his or her fiduciary
responsibilities in connection with automatic rollovers of certain
mandatory distributions to individual retirement plans. This final
regulation will affect employee pension benefit plans, plan sponsors,
administrators and fiduciaries, service providers, and plan
participants and beneficiaries.
DATES: Effective Date: This final regulation is effective March 28,
2005.
Applicability Date: This final regulation shall apply to the
rollover of mandatory distributions made on or after March 28, 2005.
FOR FURTHER INFORMATION CONTACT: Kristen L. Zarenko, Office of
Regulations and Interpretations, Employee Benefits Security
Administration, Room N-5669, U.S. Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210, (202) 693-8510. This is not a toll-
free number.
SUPPLEMENTARY INFORMATION:
A. Background
Under the Internal Revenue Code of 1986, as amended (Code), tax-
qualified retirement plans are permitted to incorporate provisions
requiring an immediate distribution to a separating participant without
the participant's consent if the present value of the participant's
vested accrued benefit does not exceed $5,000.\1\ A distribution by a
plan in compliance with such a provision is termed a mandatory
distribution, commonly referred to as a ``cash-out''. Separating
participants may choose to roll the cash-out, which is an eligible
rollover distribution,\2\ into an eligible retirement plan,\3\ or they
may retain the cash-out as a taxable distribution. Within a reasonable
period of time prior to making a mandatory distribution, plan
administrators are required to provide a separating participant with a
written notice explaining, among other things, the following: the Code
provisions under which the participant may elect to have the cash-out
transferred directly to an eligible retirement plan and that if an
election is not made, such cash-out is subject to the automatic
rollover provisions of Code section 401(a)(31)(B); the provision
requiring income tax withholding if the cash-out is not directly
transferred to an eligible retirement plan; and the provisions under
which the distribution will not be taxed if the participant transfers
the account balance to an eligible retirement plan within 60 days of
receipt.\4\
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\1\ Code sections 411(a)(11) and 417(e). See Code section
411(a)(11)(D) for circumstances where the amount of a cash-out may
be greater than $5,000, based on a participant's prior rollover
contribution into the plan.
\2\ See Code section 402(f)(2)(A).
\3\ See Code section 402(f)(2)(B).
\4\ Code section 402(f)(1).
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As part of the Economic Growth and Tax Relief Reconciliation Act of
2001 (EGTRRA),\5\ section 401(a)(31) of the Code was amended to require
that, absent an affirmative election by the participant, certain
mandatory distributions from a tax-qualified retirement plan be
directly transferred to an individual retirement plan \6\ of a
designated trustee or issuer. Specifically, section 657(a) of EGTRRA
added a new section 401(a)(31)(B)(i) to the Code to provide that, in
the case of a trust that is part of an eligible plan,\7\ the trust will
not constitute a qualified trust unless the plan of which the trust is
a part provides that if a mandatory distribution of more than $1,000 is
to be made and the participant does not elect to have such distribution
paid directly to an eligible retirement plan or to receive the
distribution directly, the plan administrator must transfer such
distribution to an individual retirement plan. Section 657(a) of EGTRRA
also added a notice requirement in section 401(a)(31)(B)(i) of the Code
requiring the plan administrator to notify the participant in writing,
either separately or as part of the notice required under section
402(f) of the Code, that the participant may transfer the distribution
to another individual retirement plan.\8\
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\5\ Pub. L. 107-16, June 7, 2001, 115 Stat. 38.
\6\ Section 401(a)(31)(B)(i) of the Code requires the transfer
to be made to an ``individual retirement plan'', which section
7701(a)(37) of the Code defines to mean an individual retirement
account described in section 408(a) and an individual retirement
annuity described in section 408(b).
\7\ Section 657(a)(1)(B)(ii) of EGTRRA defines an ``eligible
plan'' as a plan which provides for an immediate distribution to a
participant of any ``nonforfeitable accrued benefit for which the
present value (as determined under section 411(a)(11) of the Code)
does not exceed $5,000.'' The staff of Treasury and IRS have advised
the Department that the requirements of Code section 401(a)(31)(B)
apply to a broad range of retirement plans including plans
established under Code sections 401(a), 401(k), 403(a), 403(b) and
457. The Department notes that the safe harbor contained herein
applies only to employee benefit pension plans covered under title I
of ERISA. See infra note 20.
\8\ Conforming amendments to Code sections 401(a)(31) and
401(f)(1) were also made by section 657 of EGTRRA.
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Section 657(c)(2)(A) of EGTRRA directed the Department of Labor
(Department) to issue regulations providing safe harbors under which
(1) a plan administrator's designation of an institution to receive the
automatic rollover, and (2) the initial investment choice for the
rolled-over funds would be deemed to satisfy the fiduciary
responsibility provisions of section 404(a) of ERISA. Section
657(c)(2)(B) of EGTRRA states that the Secretaries of Labor and
Treasury may provide, and shall give consideration to providing,
special relief with respect to the use of low-cost individual
retirement plans for purposes of Code section 401(a)(31)(B) automatic
rollovers and for other uses that promote the preservation of assets
for retirement income.
Section 657(c)(2)(A) of EGTRRA further provides that the Code
provisions requiring automatic rollovers of certain mandatory
distributions to individual retirement plans will not become effective
until the Department issues safe harbor regulations.
On March 2, 2004, the Department published a notice in the Federal
Register (69 FR 9900) containing a proposed safe harbor regulation for
the automatic rollover of certain mandatory distributions, designated
as proposed Sec. 2550.404a-2 of Title 29 (proposal). The standards
contained in the proposal, as explained in the preamble, were based in
part on comments the Department received in response to a Request for
Information (RFI) published on January 7, 2003 in the Federal Register
(68 FR 991). The Department also published a proposed class exemption
in the March 2, 2004 edition of the Federal Register (69 FR 9846) to
address certain prohibited transactions that may result in connection
with automatic rollovers.\9\ The Department received 45 comment letters
in response to the proposed safe harbor regulation and related class
exemption. Copies of
[[Page 58019]]
these comments are posted on the Department's Website.\10\
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\9\ 69 FR 9846, as corrected at 69 FR 11043. http://www.dol.gov/ebsa/regs/fedreg/notices/2004004552.htm
.
\10\ http://www.dol.gov/ebsa/regs/cmt_autorollover.html (for the proposed safe harbor regulation); http://www.dol.gov/ebsa/regs/cmt_autorolloverexe.html
(for the proposed class exemption).
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After careful consideration of the issues raised by the written
comments on the proposal, the Department has modified the scope of the
regulation and revised some of the conditions requisite to achieving
relief under the safe harbor. The Department now is publishing in this
notice, in final form, regulation Sec. 2550.404a-2 of Title 29
(regulation), establishing a safe harbor pursuant to which a fiduciary
will be deemed to have satisfied his or her fiduciary responsibilities
in connection with rollovers of certain mandatory distributions to
individual retirement plans. In modifying the regulation, the
Department has attempted to strike a balance between preserving
retirement assets for participants on whose behalf a rollover is made
to an individual retirement plan and the costs attendant to
establishing and maintaining such plans on behalf of the participants.
Set forth below is an overview of the regulation, with a discussion
of the comments received in response to the proposal and changes made
in response to those comments.
B. Overview of Final Safe Harbor Regulation
1. Scope
Like the proposal, paragraph (a)(1) of the regulation provides that
the safe harbor applies to the automatic rollover of a mandatory
distribution described in section 401(a)(31)(B) of the Code, which
limits such distributions to nonforfeitable accrued benefits (generally
referred to as vested benefits), the present value of which is in
excess of $1,000, but less than or equal to $5,000. For purposes of
determining the present value of such benefits, section 401(a)(31)(B)
references Code section 411(a)(11). Section 411(a)(11)(A) of the Code
provides that, in general, if the present value of any nonforfeitable
accrued benefit exceeds $5,000, such benefit may not be immediately
distributed without the consent of the participant. Section
411(a)(11)(D) of the Code also provides a special rule that permits
plans to disregard that portion of a nonforfeitable accrued benefit
that is attributable to amounts rolled over from other plans (and
earnings thereon) in determining the $5,000 limit. Inasmuch as section
401(a)(31)(B) of the Code requires the automatic rollover of mandatory
distributions, as determined under section 411(a)(11), which may
include prior rollover contributions, the regulation provides safe
harbor coverage for the automatic rollover of mandatory distributions
containing such prior rollover contributions.
Several commenters recommended that the safe harbor be expanded to
include mandatory distribution amounts of $1,000 or less, which tax-
qualified retirement plans are permitted to distribute to a separating
participant without the participant's consent if the present value of
the participant's vested accrued benefit does not exceed $5,000.\11\ A
number of commenters also suggested that the safe harbor extend to
distributions of amounts greater than $5,000 (amounts beyond those
otherwise permitted under section 411(a)(11) of the Code).
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\11\ See supra note 1.
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Taking into account the purpose and provisions of the safe harbor
regulation, the Department is persuaded that application of the safe
harbor to rollovers of mandatory distributions of $1,000 or less is
appropriate. In this regard, the Department believes that the
availability of the safe harbor for such distributions may increase the
likelihood that such amounts will be rolled over to individual
retirement plans and thereby may promote the preservation of retirement
assets, without compromising the interests of the participants on whose
behalf such rollovers are made. Therefore, paragraph (a)(1) of the
regulation has been modified to provide that the safe harbor in Sec.
2550.404a-2 extends to certain other mandatory distributions not
described in section 401(a)(31)(B) of the Code. A new paragraph (d) has
been added to the regulation to address mandatory distributions of
$1,000 or less. With regard to distributions greater than $5,000, the
Department is not prepared to conclude that the framework for safe
harbor relief, specifically the prescribed investment products, is
appropriate for distributions in excess of the amounts otherwise
subject to the automatic rollover requirements of section 401(a)(31)(B)
of the Code. Accordingly, no modifications have been made to the
regulation concerning such amounts.
Paragraph (b) of the regulation, like the proposal, provides that,
if the conditions of the safe harbor are met, fiduciaries will be
deemed to have satisfied their fiduciary duties under section 404(a) of
ERISA with respect to both the selection of an individual retirement
plan provider and the investment of funds in connection with an
automatic rollover of a mandatory distribution described in section
401(a)(31)(B) of the Code to an individual retirement plan, within the
meaning of section 7701(a)(37) of the Code.
The regulation continues to make clear that the standards set forth
in the proposed regulation apply solely for purposes of determining
compliance with the safe harbor and that such standards are not
intended to represent the exclusive means by which a fiduciary might
satisfy his or her duties under ERISA with respect to automatic
rollovers of mandatory distributions described in section 401(a)(31)(B)
of the Code.
As noted above, section 657(c)(2)(B) of EGTRRA provides that the
Secretary of the Treasury and the Secretary of Labor shall consider and
may provide special relief with respect to the use of low-cost
individual retirement plans. The Department considered the provision of
such special relief and believes that the framework of the safe harbor
encourages the use of low-cost individual retirement plans for purposes
of rollovers under section 401(a)(31)(B) of the Code. The Department
specifically invited public comment on whether, given the conditions of
the proposal, further relief was necessary in this regard. While the
Department did not receive comments specifically addressing the
necessity of further relief regarding the use of low-cost individual
retirement plans, a substantial number of comments concerned the fee
and expense limitations, which relate directly to the cost of
establishing and maintaining automatic rollover individual retirement
plans. As discussed below, the regulation has been modified to reflect
comments made concerning fees and expenses assessed in connection with
distribution and maintenance of rolled-over funds into an individual
retirement plan.
2. Conditions
The proposal provided that safe harbor relief is dependent on a
fiduciary satisfying six conditions. These conditions related to the
amount of distributions, the qualifications of retirement plan
providers, permissible investment products, limits on fees and
expenses, disclosure of information to participants and prohibited
transactions. Except as discussed below, this regulation, while
structured somewhat differently, generally retains the conditions of
the proposal. Each of the conditions is discussed below.
Amount of Mandatory Distributions
The first condition, described in paragraph (c)(1) of the
regulation,
[[Page 58020]]
requires that, for the automatic rollover of mandatory distributions,
the present value of the nonforfeitable accrued benefit, as determined
under section 411(a)(11) of the Code, does not exceed the maximum
amount permitted under section 401(a)(31)(B) of the Code. Although this
condition is generally the same as the proposal, paragraph (d) has been
added to provide safe harbor relief for mandatory distributions of
$1,000 or less that are directly rolled over.
One commenter requested clarification as to whether the amount of a
participant loan would constitute a portion of the present value of the
nonforfeitable accrued benefit for purposes of the safe harbor. This
question involves an interpretation of sections 401(a)(31)(B) and
411(a)(11) of the Code and, therefore, is beyond the jurisdiction of
the Department. Accordingly, this question has been referred to the
Department of the Treasury (Treasury) and the Internal Revenue Service
(IRS) for consideration.
Rollover Distribution to an Individual Retirement Plan
The second condition of the regulation, described in paragraph
(c)(2), requires that the mandatory distribution be directed to an
individual retirement plan within the meaning of section 7701(a)(37) of
the Code. Section 7701(a)(37) defines the term ``individual retirement
plan'' to mean an individual retirement account described in section
408(a) of the Code and an individual retirement annuity described in
section 408(b) of the Code. Accordingly, a bank, insurance company,
financial institution or other provider of an individual retirement
plan under the safe harbor is required to satisfy the requirements of
the Code and regulations issued thereunder.\12\
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\12\ For example, with respect to individual retirement
accounts, 26 CFR 1.408-2(b)(2)(i) provides that the trustee of an
individual retirement account must be a bank (as defined in section
408(n) of the Code and regulations thereunder) or another person who
demonstrates, in the manner described in paragraph (e) of the
regulation, to the satisfaction of the IRS, that the manner in which
the trust will be administered will be consistent with section 408
of the Code and regulations thereunder. With respect to individual
retirement annuities, 26 CFR 1.408-3 describes, among other things,
requirements that must be met in order to maintain the tax-qualified
status of such annuity arrangements.
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The Department is adopting this condition without modification. No
commenters objected to this condition or identified any problems in the
existing Code or regulatory standards for individual retirement plans.
However, a number of commenters did raise questions concerning the
application of this provision. These questions included whether
fiduciaries can select multiple individual retirement plan providers at
the same time or only use one, and whether multiple plans of the same
employer may designate the same provider as the recipient for all
automatic rollovers. The safe harbor regulation establishes neither
minimums nor maximums in terms of the number of individual retirement
plan providers to a plan or multiple plans of an employer. The
regulation merely requires, without regard to whether there are one or
more individual retirement plan providers, that mandatory distributions
be directed to an individual retirement plan within the meaning of
section 7701(a)(37) of the Code. One commenter requested clarification
regarding the status of brokerage firms that qualify as non-bank
trustee individual retirement plan providers under section 408 of the
Code. In the Department's view, any individual retirement plan provider
offering individual retirement plans as defined in section 7701(a)(37)
of the Code is a qualified provider for purposes of the safe harbor.
Agreements With Individual Retirement Plan Providers
Several commenters urged the Department to clarify the obligations
of plan fiduciaries in terms of reliance on representations of
individual retirement plan providers concerning satisfaction of the
conditions of the safe harbor regulation and monitoring compliance with
the conditions of the regulation following the initial selection and
distribution of funds to the individual retirement plan provider. In
response to these and other issues, the Department restructured
paragraph (c) to establish an explicit requirement for a written
agreement on which the plan fiduciary may rely in making rollover
distributions under the safe harbor regulation. As modified, paragraph
(c)(3) now provides, as a condition for relief under the regulation,
that a fiduciary enter into a written agreement with an individual
retirement plan provider that specifically addresses, among other
things, the investment of rolled-over funds and the fees and expenses
attendant to the individual retirement plan. The Department anticipates
that such information would be addressed in documents currently
utilized by individual retirement plan providers in the normal course
of their business and that special documents would not have to be
prepared for purposes of the safe harbor.
To the extent that the terms and conditions of the agreement
comport with the conditions of the safe harbor regulation with respect
to rollover distributions, the fiduciary will be able to evidence
compliance with the regulation. In this regard, the fiduciary can rely
on commitments of the individual retirement plan provider as reflected
in the agreement(s) and is not required to monitor the provider's
compliance with the terms of the agreement beyond the point in time
funds are rolled over in accordance with the terms of the agreement. In
other words, the plan fiduciary's responsibility with respect to
mandatory rollovers ends at such time as the funds are placed with the
individual retirement plan provider pursuant to an agreement that
satisfies the conditions of the safe harbor. This position is
consistent with the Department's view expressed in a footnote to
Revenue Ruling 2000-36 relating to mandatory distributions.\13\
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\13\ Rev. Rul. 2000-36, 2000-2 C.B. 140.
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Inasmuch as the agreement is being entered into on behalf of a plan
participant, the regulation further provides, at subparagraph
(c)(3)(v), that the terms of the agreement are enforceable by the
participant on whose behalf the fiduciary makes an automatic rollover
to an individual retirement plan. Such a provision is consistent with
the view that the obligations of the plan fiduciary end, and the rights
of the former participant as the account holder begin, with the
distribution of funds to the individual retirement plan provider.
Investment Products
Paragraph (c)(3)(i), (ii) and (iii) address the types of
investments that are permitted under the safe harbor. While, as
discussed below, a number of commenters suggested expanding the types
of investments that would be permitted under the regulation, the
Department has concluded that the limited approach of the proposal is
more appropriate for safe harbor relief. This regulation, therefore,
provides that the agreement entered into by the plan fiduciary must
provide, with respect to investment of individual retirement plan
funds, that (i) the rolled-over funds shall be invested in an
investment product designed to preserve principal and provide a
reasonable rate of return, whether or not such return is guaranteed,
consistent with liquidity; (ii) for purposes of (i), the investment
product selected for the rolled-over funds shall seek to maintain, over
the term of the investment, the dollar value that is equal to the
amount invested in the product by the individual retirement plan; and
(iii) the investment product selected for the rolled-over funds shall
[[Page 58021]]
be offered by a State or federally regulated financial institution,
which shall be: a bank or savings association, the deposits of which
are insured by the Federal Deposit Insurance Corporation; a credit
union, the member accounts of which are insured within the meaning of
section 101(7) of the Federal Credit Union Act; an insurance company,
the products of which are protected by state guaranty associations; or
an investment company registered under the Investment Company Act of
1940.
As with the proposal, the standards in subparagraphs (c)(3)(i)-
(iii) reflect the Department's view that, given the nature and amount
of automatic rollovers, investments under the safe harbor should be
designed to minimize risk, preserve assets for retirement and maintain
liquidity. Such safe harbor investment products would typically include
money market funds maintained by registered investment companies,\14\
and interest-bearing savings accounts and certificates of deposit of a
bank or a similar financial institution. In addition, safe harbor
investment products would include ``stable value products'' issued by a
regulated financial institution that are fully benefit-responsive to
the individual retirement plan account holder. Such stable value
products provide a liquidity guarantee of principal by a financially
responsible third party and previously accrued interest for
liquidations or transfers initiated by the individual retirement plan
account holder exercising his or her right to withdraw or transfer
funds under the terms of an arrangement that does not include
substantial restrictions on the account holder's access to the assets
of the individual retirement plan.
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\14\ Regarding money market mutual funds, prospectuses for such
funds generally state that ``an investment in the [money market
mutual] Fund is not insured or guaranteed by the Federal Deposit
Insurance Corporation or any other government agency. Although the
Fund seeks to preserve the value of your [the investor's] investment
at $1.00 per share, it is possible to lose money by investing in the
Fund.''
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Several commenters endorsed the Department's view that safe harbor
investment products should favor the retention of income and principal
over growth. However, some commenters suggested expanding the types of
permissible investment products. They suggested that the safe harbor
should include investment products identical or similar to those in
which the participant had directed his or her investments prior to the
mandatory distribution. Some commenters recommended that the default
investment options selected by fiduciaries for account balances under
the plan for which participants fail to provide investment direction
should be included as permissible safe harbor investments. Other
commenters urged the inclusion of balanced or diversified funds,
because the necessarily low returns on the approved safe harbor
investments, would not help retirement savings grow over time.
The Department continues to believe that an investment strategy
adopted by a participant while in a defined contribution plan or a
default investment chosen by a plan fiduciary at a particular point in
time would not necessarily continue to be appropriate for the
separating participant in the context of an automatic rollover,
particularly given the relatively small account balances typically
covered by the safe harbor. Further, the Department believes that,
consistent with Congress' intent to preserve retirement assets for
participants, the investment products in which mandatory distributions
can be invested under the safe harbor should be limited to investment
products that are consistent with this goal of preservation. In the
Department's view, this would be limited to the class of investment
products designed to preserve principal and provide a reasonable rate
of return, whether or not such return is guaranteed, consistent with
liquidity. For these reasons, the Department retained the proposal's
standards without modification in subparagraphs (c)(3)(i) and (ii) of
the regulation.
One commenter requested clarification that the investment of
rolled-over funds in safe harbor investment products offered by Puerto
Rican financial institutions would satisfy the safe harbor's
requirement. The Department believes that as long as the Puerto Rican
financial institution offering the investment product meets the
regulation's definition of ``regulated financial institution'', the
investment of rolled-over funds in investment products offered by such
Puerto Rican financial institution would not be precluded.
Several commenters appeared to confuse the terms ``regulated
financial institutions'' and ``individual retirement plan providers''.
These terms are defined for separate and distinct purposes by the
regulation. An individual retirement plan provider is an entity that
offers individual retirement plans to which a mandatory distribution
must be transferred, while a regulated financial institution is an
entity that offers the types of investment products in which a
mandatory distribution must be invested. While it is conceivable that
one entity may meet both definitions, it is equally plausible that two
entities will be involved. For example, a plan fiduciary may select a
bank that qualifies as an individual retirement plan provider to
receive a mandatory distribution and may also select certificates of
deposit as a safe harbor investment that are offered by this same
entity as a regulated financial institution. On the other hand, a plan
fiduciary may select a financial institution that qualifies as an
individual retirement plan provider to receive a mandatory distribution
and may then select a safe harbor investment made available by this
institution to its customers, such as a money market mutual fund, which
is actually offered by a different entity, an investment company
registered under the Investment Company Act of 1940, which qualifies as
a regulated financial institution.
Fees and Expenses
Subparagraph (c)(3)(iv) of the regulation addresses the extent to
which fees and expenses can be assessed against an individual
retirement plan, including investments of such plan (e.g.,
establishment charges, maintenance fees, investment expenses,
termination costs and surrender charges). Under the proposal, fees and
expenses could not exceed amounts charged by the individual retirement
plan provider for comparable individual retirement plans established
for rollover distributions other than automatic rollovers. The proposal
further provided that fees and expenses, other than those attributable
to establishment of the individual retirement plan, could be charged
only against the income earned by the individual retirement plan.
Most commenters objected to the provision limiting fees and
expenses to income earned by the individual retirement plan. They
argued, among other things, that the income to be generated by the
investments permitted by the safe harbor against which expenses may be
assessed would be very limited, while the costs attendant to
maintaining such individual retirement plans would tend to be higher
than individual retirement plans with respect to which the account
holder contributes and maintains contact with the institution. Such
constraints, it was argued, would limit the number of individual
retirement plan providers available for rollover distributions in
accordance with the safe harbor regulation. These commenters further
argued that the comparability standard of the proposal provides
adequate protection to
[[Page 58022]]
individual retirement plan account holders in both the setting of fees
and expenses and services provided, given the competitive nature of the
individual retirement plan marketplace generally.\15\
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\15\ The Department notes that individual retirement plan
providers are subject to section 4975 of the Code including the
requirement that the fees and expenses may not exceed reasonable
compensation within the meaning of section 4975(d)(2) of the Code.
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After careful consideration, the Department is persuaded that a
comparability standard, without further limit, is sufficient to protect
individual retirement plans from being assessed unreasonable fees,
while avoiding the imposition of financial disincentives for individual
retirement plan providers to offer plans for mandatory rollover
distributions under the safe harbor. The Department has modified the
regulation accordingly in subparagraph (c)(3)(iv).
Notice to Participants
The fourth condition for safe harbor relief, described in paragraph
(c)(4) of the regulation, requires, like the proposal, that, prior to
an automatic rollover, participants must be furnished a summary plan
description (SPD) or summary of material modifications (SMM) that
includes an explanation of the nature of the investment product in
which the mandatory distribution will be invested, and an explanation
of how fees and expenses attendant to the individual retirement plan
will be allocated (i.e., the extent to which expenses will be borne by
the account holder alone or shared with the distributing plan or plan
sponsor). In addition, the disclosure must identify a plan contact for
further information concerning the plan's procedures, individual
retirement plan providers, and the fees and expenses attendant to the
individual retirement plan. For purposes of this condition, the plan
contact can be identified by reference to a person, position or office,
along with an address and phone number of the contact. It is
anticipated that the contact, in response to requests from separated
participants on whose behalf distributions have been made to an
individual retirement plan, would be able to identify the individual
retirement plan provider to whom a distribution was made for the
particular participant.
Several commenters supported the disclosure provision as proposed,
and others requested clarification on issues such as the timing of SPD
or SMM revisions and the provision of electronic notice. Some
commenters requested that the Department broaden the proposed
disclosure condition to require that separating participants be
notified of automatic rollover procedures at the time a distribution is
made in order to provide more timely information. One commenter
recommended this approach as a permitted alternative to SPD or SMM
disclosure, while another advocated for this approach in lieu of the
SPD or SMM disclosure. Another commenter asserted that, in addition to
SPD or SMM disclosure, a plan sponsor should be required to provide an
individualized notice to separating participants before any rollover
distribution is made, including all of the information required to be
contained in the SPD or SMM, the participant's benefit amount, and
generic tax information on direct transfers, rollovers, and
distributions.
The Department continues to believe that information concerning
automatic rollover procedures must be included in a plan's SPD or
SMM.\16\ The Department also believes that the SPD or SMM that is
provided to participants before mandatory distributions are made, in
conjunction with the notice required under Code section 402(f) that is
provided on an individual basis within a specified period before a
mandatory distribution is made, as well as the notice expressly added
by EGTRRA under the Code,\17\ ensure that participants and
beneficiaries will be provided, and have access to, sufficient
information about automatic rollovers. The Department is not persuaded
that the benefits to participants that might be obtained by additional
disclosures will, given the existing required disclosures, outweigh the
costs and burdens attendant to such disclosure.
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\16\ This condition is consistent with the Department's
statement in a footnote to Revenue Ruling 2000-36, 2000-2 C.B. 140
requiring that plan provisions governing the default direct rollover
of distributions, including the participant's ability to
affirmatively opt out of the arrangement, must be described in the
plan's SPD furnished to participants.
\17\ Section 657(a) of EGTRRA added a notice requirement to
section 401(a)(31)(B)(i) of the Code requiring the plan
administrator to notify a participant in writing, either separately
or as part of the required Code section 402(f) notice, that the
participant may transfer the distribution to another individual
retirement plan. See supra note 8.
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Prohibited Transactions
The fifth condition, described in paragraph (c)(5) of the
regulation, conditions safe harbor relief on the plan fiduciary not
engaging in prohibited transactions in connection with the selection of
an individual retirement plan provider or investment products, unless
such actions are covered by a statutory or administrative exemption
issued under section 408(a) of ERISA; for example, a plan fiduciary
that received consideration from a financial institution in exchange
for selecting that financial institution as the individual plan
provider would have engaged in a prohibited transaction under ERISA
section 406 that is not covered by either the statutory service
provider exemption under ERISA section 408(b)(2) or an administrative
exemption. This condition remains unchanged from the proposal, in part,
because commenters did not request any changes.
As noted in ``Background'' above, the Department also published a
proposed class exemption in the Federal Register that was intended to
deal with prohibited transactions resulting from an individual
retirement plan provider's selection of itself as the provider of an
individual retirement plan and/or issuer of an initial investment held
by such plan in connection with mandatory distributions from the
provider's own pension plan. The Department received four comment
letters that specifically addressed the proposed class exemption's
conditions; these comments are discussed in the final class exemption,
referenced below.
Simultaneously with publication of the regulation, the Department
is publishing a final class exemption in today's Federal Register.
Specifically, the exemption permits a bank or other financial
institution to (1) select itself or an affiliate as the individual
retirement plan provider to receive automatic rollovers from its own
plan, (2) select its own funds or investment products for automatic
rollovers from its own plan and (3) receive fees therefor. In the
absence of this exemption, a bank or other financial institution would
be required to direct automatic rollovers from its own plan for its own
employees to a competitor as the individual retirement plan provider.
C. Miscellaneous Issues
In response to the Department's proposal, a number of commenters
identified possible impediments that fiduciaries, banks and other
financial institutions might encounter in connection with automatic
rollovers. These commenters requested clarification on a number of
issues, including perceived conflicts with state laws on signature
requirements and escheat, Code and regulatory requirements,
requirements under the USA PATRIOT Act,\18\ section 404(c)(3) of ERISA,
missing participant issues, and beneficiary designations under the
distributing employee benefit plan. Issues raised by commenters
concerning the possible application of state laws
[[Page 58023]]
including signature and escheat requirements are beyond the scope of
the regulation.
---------------------------------------------------------------------------
\18\ Pub. L. 107-56, October 26, 2001, 115 Stat. 272.
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Code Requirements
In response to the RFI and the proposal, some commenters raised
concerns with regard to Code requirements that may conflict with the
establishment of individual retirement plans for purposes of automatic
rollovers of mandatory distributions under section 401(a)(31)(B) of the
Code. For example, one commenter raised issues concerning the
application of the safe harbor to employer-sponsored plans in Puerto
Rico, not all of which are governed by the Code. These Code issues are
beyond the Department's jurisdiction and have been referred to Treasury
and IRS for consideration. The Department has been informed that the
staffs of Treasury and IRS are reviewing the current rules and
regulations affecting distributions covered by the regulation and that
guidance addressing the application of these rules to the automatic
rollover of mandatory distributions is anticipated prior to the
effective date of this regulation.
USA PATRIOT Act
A few commenters continued to express concern over the application
of the customer identification and verification (CIP) procedures of the
USA PATRIOT Act (the Act). These commenters' concerns mirrored those
previously expressed in response to the Department's RFI. Generally,
the perceived difficulties concern situations where a fiduciary is
required to make an automatic rollover to an individual retirement
plan, but the participant cannot be located or is otherwise not
communicating with the plan concerning the distribution of plan
benefits. If the CIP provisions of the Act were construed to require
active participant involvement at the time an individual retirement
plan is established on his or her behalf, fiduciaries would be unable
to comply with the automatic rollover requirements of the Code and
utilize this safe harbor.
In response to these concerns, the Department reiterates that it
has been advised by Treasury staff, along with staff of other Federal
functional regulators,\19\ that they interpret the CIP requirements of
section 326 of the Act and implementing regulations to require that
banks and other financial institutions implement their CIP compliance
program with respect to an account, including an individual retirement
plan established by an employee benefit plan in the name of a former
participant (or beneficiary) of such plan, only at the time the former
participant or beneficiary first contacts such institution to assert
ownership or exercise control over the account. CIP compliance will not
be required at the time an employee benefit plan establishes an account
and transfers the funds to a bank or other financial institution for
purposes of a distribution of benefits from the plan to a separated
employee.\20\ In January 2004, Treasury staff, along with staff of the
other Federal functional regulators, issued guidance on this matter in
the form of a question and answer, published in a set of ``FAQs: Final
CIP Rule,'' on the regulators'' Web sites.\21\
---------------------------------------------------------------------------
\19\ The term ``other Federal functional regulators'' refers to
the other agencies responsible for administration and regulations
under the Act.
\20\ It is the Department's understanding that this
interpretation applies to a broad spectrum of employee benefit plans
including those covered by title I of ERISA and those established
under Code provisions.
\21\ See FAQs: Final CIP Rule at: http://www.occ.treas.gov/10.pdf; http://www.fincen.gov/finalciprule.pdf; http://www.fdic.gov/
news/news/financial/2004/FIL0404a.html.
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ERISA Section 404(c)(3)
Several commenters requested that the Department clarify the
relationship between ERISA section 404(c)(3), as added by EGTRRA
section 657(c) and the safe harbor relief provided in the regulation
under ERISA section 404(a). ERISA section 404(c)(3) provides that, in
the case of a pension plan that makes a transfer to an individual
retirement account or annuity under Code section 401(a)(31)(B), the
participant will be treated as exercising control over the assets of
the individual retirement account or annuity upon (A) the earlier of
(i) a rollover of all or a portion of the account or annuity to another
account or annuity or (ii) one year after the transfer is made; or (B)
a transfer that is made in a manner consistent with guidance provided
by the Secretary.
The Department confirms that this regulation is the guidance
referred to in ERISA section 404(c)(3)(B). Consequently, a fiduciary's
rollover of a mandatory distribution to an individual retirement plan
under this regulation will be treated as ``a transfer that is made in a
manner consistent with guidance provided by the Secretary'' under ERISA
section 404(c)(3)(B). Immediately following such rollover, the
Department will view the participant as exercising control over the
assets of the individual retirement plan for purposes of ERISA section
404(c)(3).
Missing Participants
Some commenters requested that the Department provide additional
guidance in the regulation to plan fiduciaries of terminated defined
contribution plans concerning missing participants. For example, one
commenter suggested expanding the safe harbor beyond the automatic
rollover context to handle missing participant issues. Although the
Department is aware of the problems faced by plan fiduciaries in
handling missing participants' accounts, the Department believes that
these issues are beyond the scope of this safe harbor initiative on
mandatory rollover distributions.
Beneficiary Designations
One commenter questioned whether an existing beneficiary
designation under the distributing plan, whether made by a participant
or a default designation under the terms of the plan, would transfer to
the individual retirement plan into which the participant's benefit is
rolled over. As stated above, in the Department's view, the rollover
distribution of the entire pension plan benefit to which a participant
is entitled into an individual retirement plan ends his or her status
as a plan participant, and the distributed assets cease to be plan
assets under Title I of ERISA. As a corollary to this view, a
beneficiary designation under the distributing plan would cease to
control the distribution of the rolled-over funds upon the death of the
individual retirement plan account holder. Further, nothing in the
regulation precludes an individual retirement plan provider from
applying its own default beneficiary provisions under the terms of the
individual retirement plan until an individual retirement plan account
holder makes an affirmative designation under the terms of the
individual retirement plan.
D. Effective Date
Section 657(c)(2)(A) of EGTRRA provides that the requirements of
section 401(a)(31)(B) of the Code requiring automatic rollovers of
mandatory distributions to individual retirement plans do not become
effective until the Department prescribes a final regulation. Inasmuch
as it appears clear that Congress did not intend fiduciaries to be
subject to the automatic rollover requirements under the Code in the
absence of a safe harbor, the Department as well as Treasury and IRS
believe that the effective date of the Code's rollover requirement must
be determined by reference to the effective date of this regulation,
which is the
[[Page 58024]]
point in time when plan fiduciaries may first avail themselves of the
relief provided by the safe harbor. In this regard, the Department
proposed to make the regulation effective 6 months after the date of
its publication in the Federal Register in order to afford plan
fiduciaries adequate time to amend their plans, distribute required
disclosures and identify institutions and products that would afford
relief under the final safe harbor regulation.
A few commenters suggested that the effective date of the
regulation should be delayed for one year following its publication to
provide sufficient time for fiduciaries to comply with the conditions
of the safe harbor and individual retirement plan providers to develop
individual retirement plans for the automatic rollover market. Other
commenters requested a one year delay based on the many outstanding
issues that require clarification from Treasury and IRS.
After careful consideration of the comments, the Department, in
consultation with the staffs of Treasury and IRS, has concluded that
delaying the effective date for 6 months following publication in the
Federal Register will provide most plans adequate time to implement
processes necessary to take advantage of the safe harbor relief
provided by the regulation. In particular, the Department notes that
the regulation will not require the comprehensive systems changes
required under the proposal's earnings limitation on fees and expenses.
Accordingly, paragraph (e) of the regulation provides that the
regulation shall be effective and shall apply to any rollover of a
mandatory distribution made on or after the date 6 months following
publication in the Federal Register.
The Department notes that fiduciaries may rely in good faith on the
regulation for purposes of satisfying their fiduciary responsibilities
under section 404(a) of ERISA with regard to the selection of an
institution to receive a rollover of a mandatory distribution and the
initial investment choice for the rolled-over funds made before the
effective date of this regulation.\22\
---------------------------------------------------------------------------
\22\ The Department notes, however, that the related final class
exemption published today in the Federal Register cannot be relied
upon for prohibited transaction relief prior to the effective date
of the regulation.
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E. Regulatory Impact Analysis
Summary
This regulation establishes conditions under which a fiduciary will
be deemed to satisfy the fiduciary obligations under section 404(a) of
ERISA in connection with the automatic rollover of a mandatory
distribution of between $1,001 and $5,000, as described in amended Code
section 401(a)(31)(B), and certain other distributions described in
section 411(a)(11) of the Code and not described in section
401(a)(31)(B). The savings arising from this safe harbor will
substantially outweigh its costs. Benefits will accrue to fiduciaries
through greater certainty and reduced exposure to risk, and to former
plan participants through regulatory standards concerning individual
retirement plan providers, investment products, preservation of
principal, rates of return, liquidity, fees and expenses, and
disclosure. The safe harbor will help preserve the principal amounts of
automatic rollovers of mandatory distributions by ensuring that the
various fees and expenses applicable to the individual retirement plans
established for mandatory distributions are not larger than those
charged by the provider to individual retirement plans established for
reasons other than the receipt of a rollover distribution subject to
Code section 401(a)(31)(B). It is assumed, for purposes of cost
estimates presented here, that all fees, to the extent that they meet
the condition related to comparability, will be charged to the
individual retirement plan.
Individual retirement plan establishment and maintenance fees for
participants are estimated, at the upper bound at $21.6 million, $7.2
million of which are costs associated with changes to the regulation.
Automatic rollovers of mandatory distributions may give rise to other
costs as well, such as investment expenses, termination charges, and
surrender charges. The magnitude of some of those expenses will relate
to the actual investment products selected. The range of possible costs
that relate to investment products is considered too broad to support
meaningful estimates.
The EGTRRA amendment will generate one-time administrative
compliance costs to plans of an estimated $139 million. Cost to plans
associated with modifying a summary plan description or summary of
material modifications to satisfy the safe harbor conditions are
estimated at $13 million.
Annually, on aggregate, the EGTRRA amendment and the regulation are
expected to affect 361,000 former participants, preserving retirement
savings of an estimated $270 million and creating tax savings of
approximately $77 million. The guidance provided by the regulation will
result in a savings of administrative compliance costs for plans of
about $92 million by lessening the time required to select an
individual retirement plan provider, investment product, and fee
structure that are consistent with the provisions of Code section
401(a)(31)(B) and ERISA section 404(a) with respect to automatic
rollovers of mandatory distributions. Finally, a small number of
defined benefit plans will benefit annually from reduced premiums to
the Pension Benefit Guaranty Corporation (PBGC) of approximately
$202,200.
Further discussion of costs and benefits of the EGTRRA amendment
and the regulation, and the data and assumptions underlying these
estimates, will be found below.
Executive Order 12866 Statement
Under Executive Order 12866, the Department must determine whether
a regulatory action is ``significant'' and therefore subject to the
requirements of the Executive Order and subject to review by the Office
of Management and Budget (OMB). Under section 3(f) of the Executive
Order, a ``significant regulatory action'' is an action that is likely
to result in a rule (1) having an annual effect on the economy of $100
million or more, or adversely and materially affecting a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or communities
(also referred to as ``economically significant''); (2) creating
serious inconsistency or otherwise interfering with an action taken or
planned by another agency; (3) materially altering the budgetary
impacts of entitlement grants, user fees, or loan programs or the
rights and obligations of recipients thereof; or (4) raising novel
legal or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the Executive Order. OMB has
determined that this action is significant under section 3(f)(4)
because it raises novel legal or policy issues arising from the
President's priorities. Accordingly, the Department has undertaken an
analysis of the costs and benefits of the regulation. OMB has reviewed
this regulatory action.
1. Costs of the EGTRRA Amendment and the Regulation
The Census Bureau's 1996 Survey of Program Participation (SIPP),
Wave 7 Pension Benefits Module collected information as to the number,
uses, and values of lump sum distributions from private pension plans
in 1997. The survey responses show whether a distribution was mandatory
or voluntary, and whether the amount involved was ``Rolled over into
another
[[Page 58025]]
plan, an IRA, or an individual retirement annuity'' (``rolled over'').
The number of lump sum distributions that are less than $5,000 and that
were characterized as mandatory and put to other specific uses
enumerated in the survey instrument (``lump sums'') has been used for
the purpose of this analysis to approximate the number of participants
in plans with mandatory distribution provisions that might fail to make
an affirmative election. The number of automatic rollovers of mandatory
distributions that will occur because of the Code amendment and the
regulation may be smaller than the number of lump sums because some of
these participants may have made an affirmative election. It seems
reasonable to assume that distributions rolled over would have involved
an affirmative election, and that the number of participants making
affirmative elections will be largely unchanged. The number of
mandatory lump sum distributions of $1,001 to $5,000, approximately
143,000 distributions, is assumed to represent an upper bound of the
number of participants potentially affected by the automatic rollover
provisions of Code section 401(a)(31)(B).
The cost of automatic rollovers has been adjusted to account for
additional costs associated with rollovers of mandatory distributions
of $1,000 or less by eligible plans. Specifically, new section
2550.404a-2(d) of the regulation permits plans with a mandatory
distribution provision that includes individual retirement accounts
valued at $1,000 or less, as described in section 411(a)(11) of the
Code, to roll over the accounts into an individual retirement plan.
Unlike the mandatory rollover provisions of EGTRRA, the decision to
roll over smaller accounts under new paragraph (d) of the regulation is
a voluntary one. The Department has conservatively assumed, for
purposes of this analysis, that all eligible plans will take advantage
of the option to roll over smaller accounts and has analyzed the costs
and benefits of the regulation separately from those of the amendment.
Using data from SIPP, Wave 7 Pension Benefits Module, the Department
estimates that approximately 85,000 participants might fail to make an
affirmative election for a mandatory distribution of $1,000 or less.
The total number of participants that might fail to make an affirmative
election to roll over a mandatory distribution is 228,000 participants.
Finally, during 1997, the account balances with present values of
accrued benefits (``accounts'') of between $1 and $5,000 of an
additional 133,000 participants were left in plans for reasons that are
not known. Although there is some uncertainty with respect to this
assumption, this number has been used here as a proxy for a number of
participants that did not receive mandatory distributions because they
were passive or non-responsive.
In the aggregate, the amount of automatic rollovers of mandatory
distributions to individual retirement plans for 361,000 participants
is approximately $722 million per year, or an average of $2,000 per
participant. Only $456 million of this total represents retirement
savings that would not otherwise have been preserved, given that the
$266 million was already maintained in retirement plans for the 133,000
former participants that were unavailable or unresponsive.
Costs and fees will be incurred by pension plans in connection with
automatic rollovers and the investments for individual retirement
plans.
After the effective date of the amendment, plans that currently
mandate immediate distributions for amounts not to exceed $5,000 will,
absent an affirmative election of a different alternative, make direct
transfers of these distributions to an individual retirement plan. To
implement this change, fiduciaries and their professional service
providers will need to review the new requirements and select
individual retirement plan providers and investment products. The
amount of time required for this activity will vary, but based on
680,000 retirement plans and an assumed hourly rate of $68, the
aggregate cost of each hour is over $46 million. An effort involving an
average of 3 hours would result in an aggregate one-time cost of $139
million. For this estimate we have conservatively assumed that all
plans provide for such mandatory distributions and will need to take
action to implement procedures for automatic rollovers to individual
retirement plans. The proportion of pension plans that provide for such
mandatory distributions is not known, but is believed, based on
anecdotal evidence, to be very high. This total cost may be lessened to
the extent that fewer plans will need to address the automatic rollover
requirement, or that the assistance of service providers to multiple
plans results in greater efficiency.
Finally, plans will incur costs in connection with the final safe
harbor to modify summary plan descriptions (SPD) or provide a summary
of material modifications (SMM). This cost is estimated to be about $13
million. Two commenters suggested that the cost of disclosing
information about a plan's automatic rollover provisions in an SPD or
SMM was higher than the Department had estimated. The Department's
estimate includes the costs of a one-time modification to the SPD or
preparation of an SMM, and mailing and materials. The estimate also
takes into consideration the fact that plan administrators report
making routine distributions of revised SPDs or SMMs on a regular
basis. The Department believes that many plans will make the required
disclosure along with disclosures made for other reasons. This is
expected to have the effect of reducing distribution costs that would
otherwise be associated with the disclosure requirement for the safe
harbor. As such, the Department continues to believe that its original
estimate of $13 million is appropriate.
The amount of some mandatory distributions subject to the automatic
rollover requirements of section 401(a)(31)(B) of the Code may be more
than $5,000. This can occur where the present value of the
nonforfeitable accrued benefits immediately distributable includes
additional funds attributable to prior rollover contributions (and the
earnings thereon).
A large majority of 401(k) plan participants are in plans that
accept rollover contributions, according to the Bureau of Labor
Statistics. There is some evidence, however, that rollovers into
qualified plans are infrequent, which suggests that the number of
participants whose accounts include amounts attributable to prior
rollover contributions may be small. The number of such participants
that will eventually become the owners of an automatic rollover
individual retirement plan will be further limited by a number of
factors, on which no data are available. Some plans will not mandate
distribution of accounts that include prior rollover contributions and
therefore exceed $5,000. Some accounts of participants with prior
rollover contributions will accumulate more than $5,000 of additional
contributions, thereby becoming ineligible for mandatory distributions.
Some participants whose accounts do not accumulate more than $5,000
will affirmatively direct, upon leaving employment, the disposition of
their accounts. Compared with other participants, those with prior
rollover contributions may be more likely to accumulate more than
$5,000 from new contributions and more likely to affirmatively direct
the disposition of their accounts.
[[Page 58026]]
The Department did not attempt to estimate the number or dollar
amount of mandatory distributions eligible for relief under the final
safe harbor regulation that may exceed $5,000. Adequate data to support
such estimates are not currently available. The Department believes it
is probable that the number of mandatory distributions containing prior
rollover contributions that will be subject to the automatic rollover
requirement of section 401(a)(31)(B) of the Code will be small but the
number of plans affected and the dollar amount of some of these
mandatory distributions might be large.
The establishment and maintenance of individual retirement plans
for automatic rollovers of mandatory distributions will generate costs
to participants whose accounts have been rolled over. At the time of
the proposal, it was assumed that, in the absence of guidance, most
fees would be charged against individual retirement plans. Based on a
range of typical establishment fees for comparable individual
retirement plans, $0 to $10 per account, the annual establishment fees
for rollovers arising from the regulation each year are estimated to
range from a negligible amount to $3.6 million, with a mid point of
$1.8 million per year. Annual maintenance fees, which typically range
from $7 to $50, are estimated to range from $2.5 million to $18
million, with a mid-point estimate of $10.3 million for individual
retirement plans established in the first year. A comparison of the
upper bounds for maintenance fees yields an additional $6 million
increase in fees for participants, also attributable to the additional
120,000 rollovers newly included in the regulation. Assuming that
individual retirement plans would continue to be established at a
constant rate of 361,000 plans per year and that no account holders
assume control of their plans, at the midpoint, maintenance fees would
continue to grow at a rate of $10.3 million annually.
Although establishment and maintenance fees are relatively
predictable based on comparable individual retirement plans available
in the marketplace, the types of investment products available and the
actual choices that may be made by fiduciaries are considered to be too
variable to support a meaningful estimate of investment fees,
termination charges, and surrender fees. However, with this
interpretive guidance, fiduciaries and the regulated financial
institutions will have increased certainty regarding costs, fees, and
charges for individual retirement plans.
The total one-time cost to plans for the amendment to the Code is
$139 million. The upper bounds of ranges for establishment and
maintenance costs under the regulation are estimated at $21.6 million.
2. Benefits of the EGTRRA and the Regulation
The regulation will benefit fiduciaries by affording them greater
assurance of compliance and reduced exposure to risk. Specificity as to
the types of entities that may receive the rollovers, the investment
choices, and the limitations on fees will lessen the time required to
comply with the EGTRRA amendment. The substantive conditions of the
safe harbor will benefit former participants by directing their
retirement savings to individual retirement plans, providers, regulated
financial institutions, and investment products that minimize risk and
offer preservation of principal and liquidity. Certain regulated
financial institutions will receive additional deposits having earnings
potential.
Plans will benefit from administrative cost savings for those
133,000 accounts that previously remained in pension plans because
participants were passive or non-responsive but are assumed to be
rolled over under the amendment to the Code and the regulation.
Ordinary administrative costs that typically range from $45 to $150 per
participant will be saved when accounts are rolled over, reducing plan
expenses under the amendment to the Code and the regulation by about $6
million to $20 million, or at a mid point, $13 million per year, $3.5
million of which is attributable to the regulation only. The cost
savings realized in each year will continue to accumulate through the
future years that the accounts would otherwise have remained in the
pension plan.
The benefits of greater certainty for fiduciaries and protection of
participants cannot be specifically quantified. By providing a safe
harbor for plan fiduciaries that choose to roll over accounts, the
Department has increased certainty concerning compliance with ERISA
section 404(a) for fiduciaries that designate institutions and
investment funds for rolled over accounts and expanded the opportunity
for retirement savings for plan participants.
The regulation is, however, expected to reduce one-time startup
administrative compliance costs to plans by as much as $92 million by
narrowing the range of individual retirement plan providers and
investment products fiduciaries might otherwise consider, assuming a
savings of 2 of the 3 hours that compliance would otherwise require.
At the time of the proposal, the Department estimated that the
EGTRRA amendment would provide 143,000 former participants with
preserved retirement savings of about $415 million and immediate tax
savings of about $112 million on an annual basis. (The additional
98,000 former participants who did not receive mandatory distributions
because they were passive or non-responsive were not counted for
purposes of estimates of preserved retirement savings and tax savings
because their accounts were not distributed.) These estimates were
considerably higher than those included in the Joint Committee on
Taxation's (JCT) May 26, 2001 estimates of the budget effects for this
provision of EGTRRA, which projected a revenue loss of about $30
million per year. This revenue loss implied an aggregate preservation
of retirement savings of about $83 million per year. Because the
reasons for this difference were unknown, the Department interpreted
the JCT estimates and its own estimates as the endpoints of ranges, and
presented the midpoints as estimates of ordinary income tax and penalty
savings, and preserved retirement savings. These midpoints amounted to
$71 million and $249 million, respectively.
The Department estimates that paragraph (d) of the regulation will
provide an additional 85,000 former plan participants with tax savings
and preserved retirement savings, such that the aggregate estimate of
tax savings of the amendment and the regulation is $123 million, and
the aggregate estimate of preserved retirement savings is $456 million.
Because the regulation includes the provision for mandatory
distributions of $1,000 or less, the JCT estimates and Department's
estimates for these values are no longer exactly comparable. However,
in spite of the substantial differences in the two sets of estimates,
the Department has continued to present midpoints between the two to
illustrate the potential benefits of tax savings and preserved
retirement savings. The benefits, expressed as midpoints, amount to $77
million in tax savings, and $270 million in preserved retirement
savings. These savings for former participants and distributions of
amounts previously retained in plans also represent increased deposits
to regulated financial institutions.
For the estimated 8 percent of these accounts that were in defined
benefit plans, a savings of approximately
[[Page 58027]]
$202,000 would be realized from reduced funding risk and corresponding
premium payments to the PBGC. This includes an additional $53,200 that
arises from the change to the regulation with respect to mandatory
distributions of $1,000 or less.
Paperwork Reduction Act
This Notice of Final Rulemaking is not subject to the requirements
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because
it does not contain a ``collection of information'' as defined in 44
U.S.C. 3502(3). It is expected that this final rule will result in a
modification of retirement plan Summary Plan Descriptions, an
information collection request approved separately under OMB control
number 1210-0039. However, this modification is not considered to be
substantive or material in the context of that information collection
request as a whole. In addition, the methodology for calculating burden
under the Paperwork Reduction Act for the Summary Plan Description
takes into account a steady rate of change in Summary Plan Descriptions
that is estimated to accommodate the change that would be made by this
final rulemaking.
The Department has clarified section (c)(3) of the regulation by
inserting that the agreement between a fiduciary and an individual
retirement plan provider that provides for the distribution of rolled
over funds must be in writing. The agreement, as previously stated in
the proposal, must include a description of the rollover investment
product, fees, and participants' rights. The Department understands
that it is customary business practice for agreements related to the
establishment of individual retirement plans to be set forth in writing
and that no new burden is created by this requirement. As a result, the
Department has not made a submission for OMB approval in connection
with the regulation.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA) imposes
certain requirements with respect to Federal rules that are subject to
the notice and comment requirements of section 553(b) of the
Administrative Procedure Act (5 U.S.C. 551 et seq.) and which are
likely to have a significant economic impact on a substantial number of
small entities. Unless an agency determines that a final rule is not
likely to have a significant economic impact on a substantial number of
small entities, section 604 of the RFA requires that the agency present
a final regulatory flexibility analysis at the time of the publication
of the notice of final rulemaking describing the impact of the rule on
small entities. Small entities include small businesses, organizations
and governmental jurisdictions.
For purposes of analysis under the RFA, the Employee Benefits
Security Administration (EBSA) proposes to continue to consider a small
entity to be an employee benefit plan with fewer than 100 participants.
The basis of this definition is found in section 104(a)(2) of ERISA,
which permits the Secretary of Labor to prescribe simplified annual
reports for pension plans that cover fewer than 100 participants. Under
section 104(a)(3), the Secretary may also provide for exemptions or
simplified annual reporting and disclosure for welfare benefit plans.
Pursuant to the authority of section 104(a)(3), the Department has
previously issued at 29 CFR 2520.104-20, 2520.104-21, 2520.104-41,
2520.104-46 and 2520.104b-10 certain simplified reporting provisions
and limited exemptions from reporting and disclosure requirements for
small plans, including unfunded or insured welfare plans covering fewer
than 100 participants and which satisfy certain other requirements.
Further, while some large employers may have small plans, in
general, small employers maintain most small plans. Thus, EBSA believes
that assessing the impact of this proposed rule on small plans is an
appropriate substitute for evaluating the effect on small entities. The
definition of small entity considered appropriate for this purpose
differs, however, from a definition of small business which is based on
size standards promulgated by the Small Business Administration (SBA)
(13 CFR 121.201) pursuant to the Small Business Act (15 U.S.C. 631 et
seq.). EBSA therefore requested comments on the appropriateness of the
size standard used in evaluating the impact of the proposal on small
entities, but received none.
EBSA has determined that this rule will not have a significant
economic impact on a substantial number of small entities. In support
of this determination, and in an effort to provide a sound basis for
this conclusion, EBSA has prepared the following final regulatory
flexibility analysis.
Section 657(c)(2)(A) of EGTRRA directed the Department to issue
regulations providing safe harbors under which a plan administrator's
designation of an institution to receive automatic rollovers of
mandatory distributions pursuant to section 401(a)(31)(B) of the Code
and the initial investment choice for the rolled-over funds would be
deemed to satisfy the fiduciary responsibility provisions of section
404(a) of ERISA. This EGTRRA provision further provided that the Code
provisions requiring automatic rollovers of certain mandatory
distributions to individual retirement plans would not become effective
until the Department issued safe harbor regulations. Before issuing a
proposed regulation, the Department requested comments on the potential
design of the safe harbor.
The conditions set forth in this regulation are intended to satisfy
the EGTRRA requirement that the Department prescribe regulations
providing for safe harbors, while meeting the objectives of offering
greater certainty to fiduciaries concerning their compliance with the
requirements of ERISA section 404(a), and of preserving assets of
former plan participants for retirement income purposes. In describing
the financial institutions, investment products, and fee arrangements
that fall within the safe harbor, the Department has attempted to
strike a balance between the interests of fiduciaries, individual
retirement plan providers, and the investment goal of preserving
principal.
The regulation will impact small plans that include provisions for
the mandatory distribution of accounts with a value not greater than
$5,000. It has been assumed for the purposes of this analysis that all
plans include such provisions, although some may not. On this basis, it
is expected that the proposal will affect 611,800 small plans. The
proportion of the total of 361,000 participants estimated to be
affected annually by the amendment to Code section 401(a)(31)(B) and
paragraph (d) of the regulation that are in small plans is not known.
Similarly, there are no available data on the number of participants
that will separate from employment with account balances of more than
$5,000 (because of prior rollover contributions) that may be, depending
on the provisions of the distributing plans, automatically rolled over
under EGTRRA. It is assumed that all 611,800 small plans will need to
address compliance with the Code amendment and will choose to comply
with new Sec. 2550.404a-2(d).
As described above, the costs and benefits of the Code amendment
and safe harbor proposal are distinguishable, and have been estimated
separately. As also noted, the regulation is expected to substantially
reduce the cost of compliance with the Code amendment. The initial cost
of the Code amendment for small plans is expected to be about $124
million. The one-time savings from
[[Page 58028]]
the final regulation is estimated at about $83 million for small plans
compared with $9 million for large plans, due to the significantly
larger number of small plans. The condition of the safe harbor
requiring disclosure of specific information in a summary plan
description or summary of material modification is expected to result
in costs to small plans of about $11 million. Preparation of this
information is in most cases accomplished by professionals that provide
services to employee benefit plans. Where fiduciaries prepare these
materials themselves, it is assumed that persons at the professional
level of budget analysts or financial managers will complete the
necessary work.
The benefits of greater certainty afforded fiduciaries by the safe
harbor are substantial but cannot be specifically quantified.
Prior to publication of this regulation, the Department published
an RFI requesting comments and suggestions from the general public on
developing guidelines to assist fiduciaries in selecting institutions
and investment products for individual retirement plans. The Department
specifically requested in the RFI that commenters, ``address the
anticipated annual impact of any proposals on small businesses and
small plans (plans with fewer than 100 participants).'' The Department
received three comments that pertained specifically to small plans, the
first of which cautioned that plan sponsors would be deterred from
sponsoring plans with a mandatory distribution provision by placement
of any additional burdens on them. Another comment indicated that,
because of technological improvements, the burden on small plans would
be manageable. Finally, a third commenter noted that annual costs would
not be any higher for small plans. The Department received no specific
comments on the impact of the proposal on small plans.
To the Department's knowledge, there are no Federal regulations
that might duplicate, overlap, or conflict with the regulation for safe
harbors under section 404(a) of ERISA.
Congressional Review Act
The notice of final rulemaking being issued here is subject to the
provisions of the Congressional Review Act provisions of the Small
Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et
seq.) and has been transmitted to the Congress and the Comptroller
General for review.
Unfunded Mandates Reform Act
Pursuant to provisions of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4), this rule does not include any Federal mandate that
may result in expenditures by State, local, or tribal governments, or
the private sector, which may impose an annual burden of $100 or more.
Federalism Statement
Executive Order 13132 (August 4, 1999) outlines fundamental
principles of federalism and requires the adherence to specific
criteria by Federal agencies in the process of their formulation and
implementation of policies that have substantial direct effects on the
States, the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. This final rule would not have federalism
implications because it has no substantial direct effect on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Section 514 of ERISA provides, with certain
exceptions specifically enumerated that are not pertinent here, that
the provisions of Titles I and IV of ERISA supersede any and all laws
of the States as they relate to any employee benefit plan covered under
ERISA. The requirements implemented in this final rule do not alter the
fundamental provisions of the statute with respect to employee benefit
plans, and as such would have no implications for the States or the
relationship or distribution of power between the national government
and the States.
List of Subjects in 29 CFR Part 2550
Employee benefit plans, Employee Retirement Income Security Act,
Employee stock ownership plans, Exemptions, Fiduciaries, Investments,
Investments foreign, Party in interest, Pensions, Pension and Welfare
Benefit Programs Office, Prohibited transactions, Real estate,
Securities, Surety bonds, Trusts and Trustees.
0
For the reasons set forth in the preamble, the Department amends
subchapter F, part 2550 of Title 29 of the Code of Federal Regulations
as follows:
Subchapter F--Fiduciary Responsibility Under the Employee Retirement
Income Security Act of 1974
PART 2550--RULES AND REGULATIONS FOR FIDUCIARY RESPONSIBILITY
0
1. The authority citation for part 2550 is revised to read as follows:
Authority: 29 U.S.C. 1135; and Secretary of Labor's Order No. 1-
2003, 68 FR 5374 (Feb. 3, 2003). Sec. 2550.401b-1 also issued under
sec. 102, Reorganization Plan No. 4 of 1978, 43 FR 47713, 3 CFR,
1978 Comp. p. 332, effective Dec. 31, 1978, E.O. 12108, 44 FR 1065,
3 CFR, 1978 Comp. p. 275. Sec. 2550.401c-1 also issued under 29
U.S.C. 1101. Sec. 2550.404c-1 also issued under 29 U.S.C. 1104. Sec.
2550.407c-3 also issued under 29 U.S.C. 1107. Sec. 2550.404a-2 also
issued under 26 U.S.C. 401 note (sec. 657, Pub. L. 107-16, 115 Stat.
38). Sec. 2550.408b-1 also issued under 29 U.S.C. 1108(b)(1) and
sec. 102, Reorganization Plan No. 4 of 1978, 43 FR 47713, 3 CFR,
1978 Comp. p. 332, effective Dec. 31, 1978, E.O. 12108, 44 FR 1065,
3 CFR, 1978 Comp. p. 275. Sec. 2550.412-1 also issued under 29
U.S.C. 1112.
0
2. The following new section is added to part 2550 to read as follows:
Sec. 2550.404a-2 Safe harbor for automatic rollovers to individual
retirement plans.
(a) In general. (1) Pursuant to section 657(c) of the Economic
Growth and Tax Relief Reconciliation Act of 2001, Public Law 107-16,
June 7, 2001, 115 Stat. 38, this section provides a safe harbor under
which a fiduciary of an employee pension benefit plan subject to Title
I of the Employee Retirement Income Security Act of 1974, as amended
(the Act), 29 U.S.C. 1001 et seq., will be deemed to have satisfied his
or her fiduciary duties under section 404(a) of the Act in connection
with an automatic rollover of a mandatory distribution described in
section 401(a)(31)(B) of the Internal Revenue Code of 1986, as amended
(the Code). This section also provides a safe harbor for certain other
mandatory distributions not described in section 401(a)(31)(B) of the
Code.
(2) The standards set forth in this section apply solely for
purposes of determining whether a fiduciary meets the requirements of
this safe harbor. Such standards are not intended to be the exclusive
means by which a fiduciary might satisfy his or her responsibilities
under the Act with respect to rollovers of mandatory distributions
described in paragraphs (c) and (d) of this section.
(b) Safe harbor. A fiduciary that meets the conditions of paragraph
(c) or paragraph (d) of this section is deemed to have satisfied his or
her duties under section 404(a) of the Act with respect to
[[Page 58029]]
both the selection of an individual retirement plan provider and the
investment of funds in connection with the rollover of mandatory
distributions described in those paragraphs to an individual retirement
plan, within the meaning of section 7701(a)(37) of the Code.
(c) Conditions. With respect to an automatic rollover of a
mandatory distribution described in section 401(a)(31)(B) of the Code,
a fiduciary shall qualify for the safe harbor described in paragraph
(b) of this section if:
(1) The present value of the nonforfeitable accrued benefit, as
determined under section 411(a)(11) of the Code, does not exceed the
maximum amount under section 401(a)(31)(B) of the Code;
(2) The mandatory distribution is to an individual retirement plan
within the meaning of section 7701(a)(37) of the Code;
(3) In connection with the distribution of rolled-over funds to an
individual retirement plan, the fiduciary enters into a written
agreement with an individual retirement plan provider that provides:
(i) The rolled-over funds shall be invested in an investment
product designed to preserve principal and provide a reasonable rate of
return, whether or not such return is guaranteed, consistent with
liquidity;
(ii) For purposes of paragraph (c)(3)(i) of this section, the
investment product selected for the rolled-over funds shall seek to
maintain, over the term of the investment, the dollar value that is
equal to the amount invested in the product by the individual
retirement plan;
(iii) The investment product selected for the rolled-over funds
shall be offered by a state or federally regulated financial
institution, which shall be: A bank or savings association, the
deposits of which are insured by the Federal Deposit Insurance
Corporation; a credit union, the member accounts of which are insured
within the meaning of section 101(7) of the Federal Credit Union Act;
an insurance company, the products of which are protected by State
guaranty associations; or an investment company registered under the
Investment Company Act of 1940;
(iv) All fees and expenses attendant to an individual retirement
plan, including investments of such plan, (e.g., establishment charges,
maintenance fees, investment expenses, termination costs and surrender
charges) shall not exceed the fees and expenses charged by the
individual retirement plan provider for comparable individual
retirement plans established for reasons other than the receipt of a
rollover distribution subject to the provisions of section
401(a)(31)(B) of the Code; and
(v) The participant on whose behalf the fiduciary makes an
automatic rollover shall have the right to enforce the terms of the
contractual agreement establishing the individual retirement plan, with
regard to his or her rolled-over funds, against the individual
retirement plan provider.
(4) Participants have been furnished a summary plan description, or
a summary of material modifications, that describes the plan's
automatic rollover provisions effectuating the requirements of section
401(a)(31)(B) of the Code, including an explanation that the mandatory
distribution will be invested in an investment product designed to
preserve principal and provide a reasonable rate of return and
liquidity, a statement indicating how fees and expenses attendant to
the individual retirement plan will be allocated (i.e., the extent to
which expenses will be borne by the account holder alone or shared with
the distributing plan or plan sponsor), and the name, address and phone
number of a plan contact (to the extent not otherwise provided in the
summary plan description or summary of material modifications) for
further information concerning the plan's automatic rollover
provisions, the individual retirement plan provider and the fees and
expenses attendant to the individual retirement plan; and
(5) Both the fiduciary's selection of an individual retirement plan
and the investment of funds would not result in a prohibited
transaction under section 406 of the Act, unless such actions are
exempted from the prohibited transaction provisions by a prohibited
transaction exemption issued pursuant to section 408(a) of the Act.
(d) Mandatory distributions of $1,000 or less. A fiduciary shall
qualify for the protection afforded by the safe harbor described in
paragraph (b) of this section with respect to a mandatory distribution
of one thousand dollars ($1,000) or less described in section
411(a)(11) of the Code, provided there is no affirmative distribution
election by the participant and the fiduciary makes a rollover
distribution of such amount into an individual retirement plan on
behalf of such participant in accordance with the conditions described
in paragraph (c) of this section, without regard to the fact that such
rollover is not described in section 401(a)(31)(B) of the Code.
(e) Effective date. This section shall be effective and shall apply
to any rollover of a mandatory distribution made on or after March 28,
2005.
Signed at Washington, DC, this 20th day of September, 2004.
Ann L. Combs,
Assistant Secretary, Employee Benefits Security Administration.
[FR Doc. 04-21591 Filed 9-27-04; 8:45 am]
BILLING CODE 4150-29-P
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