[Federal Register: October 7, 2008 (Volume 73, Number 195)]
[Rules and Regulations]
[Page 58447-58450]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07oc08-7]
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DEPARTMENT OF LABOR
Employee Benefits Security Administration
29 CFR Part 2550
RIN 1210-AB19
Selection of Annuity Providers--Safe Harbor for Individual
Account Plans
AGENCY: Employee Benefits Security Administration, Department of Labor.
ACTION: Final rule.
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SUMMARY: This document contains a final regulation that establishes a
safe harbor for the selection of annuity providers for the purpose of
benefit distributions from individual account plans covered by title I
of the Employee Retirement Income Security Act (ERISA). This regulation
will affect plan sponsors and fiduciaries of individual account plans
and the participants and beneficiaries covered by such plans. Also
appearing in today's Federal Register is a final rule amending
Interpretive Bulletin 95-1 to limit the application of the Bulletin to
the selection of annuity providers for defined benefit plans.
DATES: This final rule is effective on December 8, 2008.
FOR FURTHER INFORMATION CONTACT: Janet A. Walters or Allison E.
Wielobob, Office of Regulations and Interpretations, Employee Benefits
Security Administration, U.S. Department of Labor, Washington, DC
20210, (202) 693-8510. This is not a toll-free number.
SUPPLEMENTARY INFORMATION:
A. Background
On September 12, 2007, the Department published an interim final
regulation (72 FR 52004) limiting the scope of Interpretive Bulletin
95-1, relating to the selection of annuity providers, to defined
benefit plans, as directed by section 625 of the Pension Protection Act
of 2006 (the PPA) (Pub. L. 109-280, 120 Stat. 780). On the same date,
the Department published a proposed rule (72 FR 52021) that would
establish a safe harbor for the selection of annuity providers for
individual account plans. The Department received 10 comment letters in
response to its request for comments. Set forth below is an overview of
the final rule and the public comments submitted on the proposed rule.
A final rule amending Interpretive Bulletin 95-1 also appears in
today's Federal Register.
B. Overview of Final Rule and Comments
As discussed below, the substance of the final rule is very similar
to the Department's proposed rule. The Department, however, has made
changes to the proposed rule that clarify and simplify the safe harbor
conditions, consistent with the suggestions of the commenters.
Scope of the Final Rule
Although restructured to simplify and clarify the rule, paragraph
(a)(1) of Sec. 2550.404a-4 of the final rule, like the proposed rule,
describes the scope of the regulation. As described in paragraph (a)(1)
of the final rule, the regulation establishes a safe harbor for
satisfying the fiduciary duties under section 404(a)(1)(B) of ERISA in
selecting an annuity provider and contract for benefit distributions
from an individual account plan. Paragraph (a)(1) also includes a
reference to Sec. 2509.95-1 for guidance concerning the selection of
annuity providers for defined benefit plans.
Several commenters expressed concerns about a safe harbor
structure. Some suggested that a safe harbor is inconsistent with the
prudent person standard and that the prudent person standard alone
would more effectively reduce impediments to annuities as a
[[Page 58448]]
distribution option under an individual account plan.
Other commenters asserted that the regulation should explicitly
state that the generally applicable fiduciary standards apply outside
the safe harbor and that a fiduciary can discharge its fiduciary duties
in ways other than those prescribed by the regulation. In this regard,
some commenters expressed concerns that fiduciaries may believe that
they must meet the safe harbor conditions in order to satisfy their
fiduciary duties if the regulation is not clearly identified as a safe
harbor. Others argued that the safe harbor has the effect of
establishing a heightened standard of review for the selection and
monitoring of annuities that is unduly stringent and has limited
relevance to many annuity investment and distribution options.
After careful consideration of these comments, the Department
continues to believe that the safe harbor criteria will be useful to
many plan fiduciaries when selecting annuity providers and contracts.
The Department agrees, however, that a clearer statement concerning the
nature of the safe harbor would be beneficial. Accordingly, the
Department has modified paragraph (a) of the safe harbor to add new
subparagraph (a)(2), clarifying that the regulation does not establish
minimum requirements or the exclusive means for satisfying the
responsibilities under section 404(a)(1)(B) of ERISA with respect to
the selection of an annuity provider or contract for benefit
distributions. Further, in an effort to minimize confusion concerning
the scope of the safe harbor, as well as to simplify the regulation
generally, the Department has eliminated paragraph (b) of the proposal,
which discussed the general fiduciary standards of section 404(a)(1).
Safe Harbor
Paragraph (b) of Sec. 2550.404a-4 of the final rule sets forth the
conditions of the safe harbor. While the conditions for relief under
the final safe harbor regulation are essentially the same as those
contained in the proposal, some changes have been made to the ordering
and language of the conditions for purposes of clarifying and
simplifying the overall regulation.
As with the proposal, the first condition for safe harbor relief is
that the plan fiduciary engage in an objective, thorough and analytical
search for the purpose of identifying and selecting providers from
which to purchase annuities. See paragraph (b)(1) of Sec. 2550.404a-4
of the final rule. Consistent with other guidance from the Department,
this process must avoid self dealing, conflicts of interest or other
improper influence, and should, to the extent feasible, involve
consideration of competing annuity providers.
Paragraph (b)(2) of the final rule, consistent with the proposal,
requires that the fiduciary appropriately consider information
sufficient to assess the ability of the annuity provider to make all
future payments under the annuity contract.
Paragraph (b)(3), requires that the fiduciary appropriately
consider the cost of the annuity contract, including fees and
commissions, in relation to the benefits and administrative services to
be provided under the contract. This paragraph is also consistent with
the proposal, except that a reference to ``fees and commissions'' has
been added to emphasize their importance to the fiduciary's decision
making process.
Paragraph (b)(4), also like the proposal, requires that the
fiduciary appropriately conclude that, at the time of the selection,
the annuity provider is financially able to make all future payments
under the annuity contract and the cost of the annuity contract is
reasonable in relation to the benefits and services to be provided
under the contract.
Paragraph (b)(5) provides that, if necessary, the fiduciary should
consult with an appropriate expert or experts for purposes of complying
with the requirements of the safe harbor as set forth in paragraph (b).
The proposal included as a condition that a fiduciary appropriately
determine either that he or she had, at the time of the selection, the
appropriate expertise to evaluation the selection of an annuity
provider or that the advice of a qualified, independent expert was
necessary. A number of commenters expressed concern that this
requirement, as framed, would require all employers to engage
independent experts to conduct an analysis of the provider and
contract, even those that believed they had the requisite knowledge to
make a prudent decision. Commenters believed this would be a
particularly onerous requirement for small employers. As modified, the
regulation makes clear that engaging an independent expert is not
required in all cases. Rather, whether and to what extent, if at all,
an expert may be needed is a determination to be made by the plan
fiduciary taking into account what, if any, assistance the fiduciary
needs to satisfy the conditions in paragraphs (b)(1)-(4) of the
regulation.
Paragraph (c)(2) of the proposed regulation provided additional
guidance concerning what information a fiduciary should consider in
meeting the requirements for the safe harbor. A number of commenters
argued that the provisions of paragraph (c)(2) were duplicative,
confusing and unnecessary. The Department agrees that the paragraph, as
part of the safe harbor, is not necessary and, in some instances, may
be confusing. Accordingly, the final safe harbor does not include the
listing of supplemental considerations set forth in paragraph (c)(2) of
the proposal.
The Department believes that the general safe harbor conditions in
the final regulation will be more useful for fiduciaries. Further,
although an annuity provider's ratings by insurance ratings services
are not part of the final safe harbor, in many instances, fiduciaries
may want to consider them, particularly if the ratings raise questions
regarding the provider's ability to make future payments under the
annuity contract. The Department also believes that some information
regarding additional protections that might be available through a
state guaranty association for an annuity provider also would be useful
information to a plan fiduciary, even if limited to that information
which is generally available to the public and easily accessible
through such associations, state insurance departments, or elsewhere.
Time of Selection
Commenters expressed concern that plan fiduciaries would have to
comply with the conditions of the proposed safe harbor merely because
they offered investment options through an annuity contract, without
regard to whether a participant or plan fiduciary actually exercised
the annuity feature of the contract. If so, commenters argued,
investment products offered by insurers would be subject to what they
perceived as a different, if not higher, fiduciary standard than that
applied to the selection of other investment products. The Department
does not intend, by virtue of the safe harbor, to establish different
fiduciary standards for the selection of investment products. Rather,
the safe harbor conditions apply solely to a fiduciary's decision to
purchase a distribution annuity for an individual account plan. To
clarify this point, the final regulation includes a new paragraph (c)
that affords plan fiduciaries flexibility concerning when they must
meet the safe harbor conditions in order to take advantage of the safe
harbor. Paragraph (c)(1) of the final regulation provides that, under
the safe harbor, the time of selection may be the time that the
fiduciary selects the annuity provider and contract for distribution of
benefits to a specific
[[Page 58449]]
participant or beneficiary. Paragraph (c)(2) provides, in the
alternative, that the fiduciary may meet the safe harbor conditions
when the fiduciary selects an annuity provider to provide annuity
contracts at future dates to participants or beneficiaries, provided
that the selecting fiduciary periodically reviews the continuing
appropriateness of the conclusion that the annuity provider is
financially able to make all future payments under the annuity contract
and the cost of the annuity contract is reasonable in relation to the
benefits and services to be provided under the contract, taking into
account the factors described in paragraphs (b)(2), (3) and (5) of
Sec. 2550.404a-4 of the final rule. For purposes of paragraph (c)(2),
a fiduciary is not required to review the appropriateness of this
conclusion with respect to any annuity contract purchased for any
specific participant or beneficiary.
C. Effective Date
This final regulation will be effective 60 days after the date of
its publication in the Federal Register.
D. Regulatory Impact Analysis
Executive Order 12866 Statement
Under Executive Order 12866 (58 FR 51735), the Department must
determine whether a regulatory action is ``significant'' and therefore
subject to review by the Office of Management and Budget (OMB). Section
3(f) of the Executive Order defines a ``significant regulatory action''
as 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. Pursuant to the terms of the
Executive Order, it has been determined that this action is not
``significant'' within the meaning of section 3(f) of the Executive
Order, and, therefore, is not subject to review by OMB.
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 that are 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 of the publication of the notice
of final rulemaking describing the impact of the rule on small
entities. The Department has considered the likely impact of the final
rule on small entities in connection with its assessment under
Executive Order 12866, described above, and believes this rule will not
have a significant impact on a substantial number of small entities.
Paperwork Reduction Act
This rulemaking is not subject to the requirements of the Paperwork
Reduction Act of 1995 (44 U.S.C. 301 et seq.), because it does not
contain ``collection of information'' requirements as defined in 44
U.S.C. 3502(3). Accordingly, the final rule is not being submitted to
the OMB for review under the Paperwork Reduction Act.
Congressional Review Act
This notice of final rulemaking is subject to the Congressional
Review Act provisions of the Small Business Regulatory Enforcement
Fairness Act of 1996 (5 U.S.C. 801 et seq.) and therefore has been
transmitted to the Congress and the Comptroller General for review.
Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L.
104-4), the final rule does not include any Federal mandate that may
result in expenditures by State, local, or tribal governments, or
impose an annual burden exceeding $100 million on the private sector.
Federalism Statement
Executive Order 13132 (August 4, 1999) outlines fundamental
principles of federalism and requires Federal agencies to adhere to
specific criteria 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 does 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 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 the 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
Annuities, Employee benefit plans, Fiduciaries, Pensions.
0
For the reasons set forth in the preamble, the Department amends
Chapter XXV of Title 29 of the Code of Federal Regulations as follows:
Title 29--Labor
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. 2550.401c-1 also issued
under 29 U.S.C. 1101. Sec. 2550.404a-1 also issued under sec. 657,
Pub. L. 107-16, 115 Stat. 38. Sections 2550.404c-1 and 2550.404c-5
also issued under 29 U.S.C. 1104. Sec. 2550.408b-1 also issued under
29 U.S.C. 1108(b)(1) and sec. 102, Reorganization Plan No. 4 of
1978, 5 U.S.C. App. 1. Sec. 2550.408b-19 also issued under sec. 611,
Pub. L. 109-280, 120 Stat. 780, 972, and sec. 102, Reorganization
Plan No. 4 of 1978, 5 U.S.C. App. 1. Sec. 2550.412-1 also issued
under 29 U.S.C. 1112.
0
2. Add Sec. 2550.404a-4 to read as follows:
Sec. 2550.404a-4 Selection of annuity providers--safe harbor for
individual account plans.
(a) Scope. (1) This section establishes a safe harbor for
satisfying the fiduciary duties under section 404(a)(1)(B) of the
Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.
1104-1114, in selecting an annuity provider and contract for benefit
distributions from an individual account plan. For guidance concerning
the selection of an
[[Page 58450]]
annuity provider for defined benefit plans see 29 CFR 2509.95-1.
(2) This section sets forth an optional means for satisfying the
fiduciary responsibilities under section 404(a)(1)(B) of ERISA with
respect to the selection of an annuity provider or contract for benefit
distributions. This section does not establish minimum requirements or
the exclusive means for satisfying these responsibilities.
(b) Safe harbor. The selection of an annuity provider for benefit
distributions from an individual account plan satisfies the
requirements of section 404(a)(1)(B) of ERISA if the fiduciary:
(1) Engages in an objective, thorough and analytical search for the
purpose of identifying and selecting providers from which to purchase
annuities;
(2) Appropriately considers information sufficient to assess the
ability of the annuity provider to make all future payments under the
annuity contract;
(3) Appropriately considers the cost (including fees and
commissions) of the annuity contract in relation to the benefits and
administrative services to be provided under such contract;
(4) Appropriately concludes that, at the time of the selection, the
annuity provider is financially able to make all future payments under
the annuity contract and the cost of the annuity contract is reasonable
in relation to the benefits and services to be provided under the
contract; and
(5) If necessary, consults with an appropriate expert or experts
for purposes of compliance with the provisions of this paragraph (b).
(c) Time of selection. For purposes of paragraph (b) of this
section, the ``time of selection'' may be either:
(1) The time that the annuity provider and contract are selected
for distribution of benefits to a specific participant or beneficiary;
or
(2) The time that the annuity provider is selected to provide
annuity contracts at future dates to participants or beneficiaries,
provided that the selecting fiduciary periodically reviews the
continuing appropriateness of the conclusion described in paragraph
(b)(4) of this section, taking into account the factors described in
paragraphs (b)(2), (3) and (5) of this section. For purposes of this
paragraph (c)(2), a fiduciary is not required to review the
appropriateness of this conclusion with respect to any annuity contract
purchased for any specific participant or beneficiary.
Signed at Washington, DC, this 29th day of September, 2008.
Bradford P. Campbell,
Assistant Secretary, Employee Benefits Security Administration,
Department of Labor.
[FR Doc. E8-23427 Filed 10-6-08; 8:45 am]
BILLING CODE 4510-29-P