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CCH® PENSION AND BENEFITS — 1/30/08

EBSA releases its semiannual regulatory agenda

The Employee Benefits Security Administration (EBSA) has released its semiannual regulatory agenda, which outlines regulations that have been selected for review or development during the next year, as well as any regulations that have been finalized during the last six months.

Prerule stage

Items in the prerule stage are actions which EBSA undertakes to determine whether or how to initiate rulemaking. Such actions occur prior to a Notice of Proposed Rulemaking (NPRM) and may include Advance Notices of Proposed Rulemaking (AN-PRMs) and reviews of existing regulations. Items in the prerule state are:

• a review of the plan assets-participant contributions regulation in accordance with the requirements of section 610 of the Regulatory Flexibility Act.

Proposed rule stage

Items in the proposed rule stage are actions for which EBSA intends to publish a notice of proposed rulemaking (NPRM) or for which the closing date for an NPRM is the next step. These proposed rules include:

• an amendment to the definition of when participant moneys paid to or withheld by an employer for contribution to an employee benefit plan constitute “plan assets” for purposes of ERISA and the related prohibited transaction provisions of the Code;
• a regulation ensuring that the participants and beneficiaries in participant-directed individual account plans are provided the information they need, including information about fees and expenses, to make informed investment decisions;
• an amendment to the regulation setting forth the standards applicable to the exemption under ERISA §408(b)(2) for contracting or making reasonable arrangements with a party in interest for office space or services;
• a prohibited transaction exemption that permits the provision of investment advice to participants or beneficiaries of certain individual account plans if the investment advice is provided under an “eligible investment advice arrangement,” as defined in ERISA §408(g);
• a model individual pension benefit statement, as required by section 508 of the Pension Protection Act of 2006 (PPA);
• implementation of the civil penalty provision under ERISA §502(c)(4) to reflect recent amendments by the Pension Protection Act of 2006, under which the Secretary of Labor is granted authority to assess civil penalties not to exceed $1000 per day for each violation of section ERISA §101(j), (k), (l) , or ERISA §514(e)(3).

Final rule stage

Items in the final rule stage are actions for which EBSA plans to publish a final or interim rule as the next step in the rulemaking process. Final rules generally affecting both pension and welfare plans include regulations involving:

• regulations implementing the health care access, portability, and renewability provisions of HIPAA;
• a safe harbor under which a fiduciary of an individual account plan will be deemed to have satisfied his or her fiduciary responsibilities with respect to the selection of an annuity provider for the purpose of benefit distributions;
• guidance concerning the timing and order of domestic relations orders under ERISA §206(d)(3);
• amendments to the safe harbor for distributions from terminated individual account plans and termination of abandoned individual account plans to require inherited IRAs for missing nonspouse beneficiaries;
• requirement that the administrator of a defined benefit pension plan provide participants, beneficiaries, and other parties with an annual funding notice;
• requirement that the plan administrator of a multiemployer plan must, upon written request, furnish within 30 days to any plan participant or beneficiary, employee representative, or any employer that has an obligation to contribute to the plan a copy of certain actuarial, financial and funding-related documents.

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