[Federal Register: February 29, 2008 (Volume 73, Number 41)]
[Proposed Rules]
[Page 11072-11079]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29fe08-33]
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DEPARTMENT OF LABOR
Employee Benefits Security Administration
29 CFR Part 2510
RIN 1210-AB02
Amendment of Regulation Relating to Definition of ``Plan
Assets''--Participant Contributions
AGENCY: Employee Benefits Security Division, Department of Labor.
ACTION: Proposed rule.
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SUMMARY: This document would, upon adoption, establish a safe harbor
period of 7 business days during which amounts that an employer has
received from employees or withheld from wages for contribution to
employee benefit plans with fewer than 100 participants would not
constitute ``plan assets'' for purposes of Title I of the Employee
Retirement Income Security Act of 1974, as amended (ERISA), and the
related prohibited transaction provisions of the Internal Revenue Code.
This amendment would provide greater certainty concerning when
participant contributions held by an employer do not constitute ``plan
assets.'' The proposed rule, if adopted, would affect the sponsors and
fiduciaries of contributory group welfare and pension plans covered by
ERISA, including 401(k) plans, as well as the participants and
beneficiaries covered by such plans and recordkeepers, and other
service providers to such plans.
DATES: Written comments on the proposed amendment should be received by
the Department on or before April 29, 2008.
ADDRESSES: To facilitate the receipt and processing of comments, EBSA
encourages interested persons to submit their comments electronically
to www.regulations.gov (follow instructions for submission of comments)
or e-ORI@dol.gov. Persons submitting comments electronically are
encouraged not to submit paper copies. Persons interested in submitting
comments on paper should send or deliver their comments to: Office of
Regulations and Interpretations, Employee Benefits Security
Administration, Room N-5655, U.S. Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210, Attn: Participant Contribution
Regulation Safe Harbor. All comments will be available to the public,
without charge, online at www.regulations.gov and www.dol.gov/ebsa, and
at the Public Disclosure Room, Room N-1513, Employee Benefits Security
Administration, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210.
FOR FURTHER INFORMATION CONTACT: Janet A. Walters, 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
In 1988, the Department of Labor (the Department) published a final
rule (29 CFR 2510.3-102) in the Federal Register (53 FR 17628, May 17,
1988), defining
[[Page 11073]]
when certain monies that a participant pays to, or has withheld by, an
employer for contribution to an employee benefit plan are ``plan
assets'' for purposes of Title I of the Employee Retirement Income
Security Act of 1974, as amended (ERISA) and the related prohibited
transaction provisions of the Internal Revenue Code (the Code).\1\ The
1988 regulation provided that the assets of a plan included amounts
(other than union dues) that a participant or beneficiary pays to an
employer, or amounts that a participant has withheld from his or her
wages by an employer, for contribution to a plan, as of the earliest
date on which such contributions can reasonably be segregated from the
employer's general assets, but in no event to exceed 90 days from the
date on which such amounts are received or withheld by the employer. In
1996, the Department published in the Federal Register (61 FR 41220,
August 7, 1996), amendments to the 1988 regulation modifying the
outside limit beyond which participant contributions to a pension plan
become plan assets. Under the 1996 amendments, the outer limit for
participant contributions to a pension plan was changed to the 15th
business day of the month following the month in which participant
contributions are received by the employer (in the case of amounts that
a participant or beneficiary pays to an employer) or the 15th business
day of the month following the month in which such amounts would
otherwise have been payable to the participant in cash (in the case of
amounts withheld by an employer from a participant's wages). The
general rule--providing that amounts paid to or withheld by an employer
become plan assets on the earliest date on which they can reasonably be
segregated from the employer's general assets--did not change. The
maximum time period applicable to welfare plans also did not change as
a result of the 1996 amendments.
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\1\ While the rule effects the application of ERISA and Code
provisions, it has no implications for and may not be relied upon to
bar criminal prosecutions under 18 U.S.C. 644. See paragraph (a) of
29 CFR 2510.3-102.
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In the course of investigations of 401(k) and other contributory
pension plans and in discussions with representatives of employers,
plan administrators, consultants and others, it is commonly represented
to the Department that, while efforts have been made to clarify the
application of the general rule (i.e., participant contributions become
plan assets on the earliest date on which they can reasonably be
segregated from the employer's general assets),\2\ many employers, as
well as their advisers, continue to be uncertain as to how soon they
must forward these contributions to the plan in order to avoid the
requirements associated with holding plan assets. At the same time, the
Department devotes significant enforcement resources to cases involving
delinquent employee contributions and the vast majority of applications
under the Department's Voluntary Fiduciary Correction Program involve
delinquent employee contribution violations.\3\
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\2\ See preamble to Final Rule, 61 FR 41220, 41223 (August 7,
1996). See also Field Assistance Bulletin 2003-2 (May 7, 2003).
\3\ Since the inception of the Voluntary Fiduciary Correction
Program in 2000, close to 90% of the applications have involved
delinquent participant contribution violations.
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The Department believes that it is in the interest of both plan
sponsors and plan participants and beneficiaries to amend the
participant contribution regulation to provide a higher degree of
compliance certainty with respect to when an employer has made timely
deposits of participant contributions to the plan. In this regard, the
Department proposes a safe harbor under which participant contributions
will be considered to have been deposited with the plan in a timely
fashion when such contributions are deposited within 7 business days.
The Department believes that the adoption of such a safe harbor affords
certainty to employers receiving participant contributions regarding
the status of such funds. At the same time, the safe harbor would
protect participants by encouraging employers to deposit participant
contributions with plans within the safe harbor period.
Under the proposed safe harbor, participant contributions to a
pension or welfare benefit plan with fewer than 100 participants at the
beginning of the plan year will be treated as having been made to the
plan in accordance with the general rule (i.e., on the earliest date on
which such contributions can reasonably be segregated from the
employer's general assets) when contributions are deposited with the
plan no later than the 7th business day following the day on which such
amount is received by the employer (in the case of amounts that a
participant or beneficiary pays to an employer) or the 7th business day
following the day on which such amount would otherwise have been
payable to the participant in cash (in the case of amounts withheld by
an employer from a participant's wages). As under the current
regulation, participant contributions will be considered deposited when
placed in an account of the plan, without regard to whether the
contributed amounts have been allocated to specific participants or
investments of such participants.
In attempting to define the appropriate period for a safe harbor,
the Department reviewed data collected in the course of its
investigations of possible failures to deposit participant
contributions in a timely fashion. These data indicate that smaller
plans, typically need more time than larger plans to segregate
participant contributions from their general assets. In this regard,
the data indicates that on average, employers with small plans--defined
for purposes of this regulation as employers sponsoring plans with
fewer than 100 participants--are capable of depositing participant
contributions with their plans, on a consistent basis, by the 7th
business day following the date of receipt or withholding. On the basis
of this data, the Department concluded that adoption of a ``7-business
day'' safe harbor rule would allow most employers with small plans to
take advantage of the safe harbor and, thereby, benefit from the
certainty of compliance afforded by the proposed regulation. Moreover,
the Department believes that adoption of a ``7-business day'' safe
harbor rule would present little, if any, additional risk to plan
participants and beneficiaries. In this regard, the Department believes
that most employers with small plans that are taking longer than 7
business days to deposit participant contributions will expedite the
depositing of those contributions to take advantage of the safe harbor.
The Department also believes that where participant contributions are
being made by employers with small plans within a period shorter than 7
business days, few employers with small plans will incur the costs
attendant to modifying their payroll system in order to hold such
contributions for a few additional days. The Department invites
comments on the proposed safe harbor.
In the case of employers sponsoring large plans--defined for
purposes of this regulation as employers sponsoring plans with 100 or
more participants--it is unclear if these plans have the same need for
a safe harbor period within which participant contributions should be
required to be deposited with a plan. The Department intends, as part
of the final regulation, to include a safe harbor for employers with
large plans if commenters provide information and data sufficient to
evaluate the current contribution practices of such
[[Page 11074]]
employers and to conclude that it is a net benefit to such employers
and participants to have a safe harbor. In this regard, the Department
specifically requests information concerning the time period within
which employers with large plans deposit participant contributions
following the date of receipt or withholding. The Department also
requests comments on the need for a safe harbor, and the corresponding
size of the plans for which there appears to be a need for such a safe
harbor. The Department proposes to amend paragraph (f) of 2510.3-102 to
update the examples and illustrate the safe harbor and invites comments
on the amendment of paragraph (f) of 2510.3-102.
As proposed, the safe harbor would be available for both
participant contributions to pension benefit plans and participant
contributions to welfare benefit plans.
The Department also is proposing to amend paragraph (a)(1) of
2510.3-102 to extend the application of the regulation to amounts paid
by a participant or beneficiary or withheld by an employer from a
participant's wages for purposes of repaying a participant's loan
(regardless of plan size). In Advisory Opinion 2002-02A (May 17,
2002),\4\ the Department expressed the view that, while the participant
contribution regulation, as drafted, did not apply to participant loan
repayments, the principles for determining when participant loan
repayments become plan assets generally are the same as those specified
in the participant contribution regulation. The Department, therefore,
concluded that participant loan repayments made to an employer for
purposes of transmittal to the plan, or withheld from employee wages by
the employer for transmittal to the plan, become plan assets on the
earliest date on which such repayments can reasonably be segregated
from the employer's general assets.
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\4\ This advisory opinion may be accessed at http://www.dol.gov/
ebsa/regs/aos/ao2002-02a.html (May 17, 2002).
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The proposed amendment to paragraph (a)(1) would adopt the
principles applicable to determining when participant loan repayments
constitute plan assets. This proposal also would serve to extend the
availability of the 7-business day safe harbor to loan repayments to
plans with fewer than 100 participants, relief that would not otherwise
be available in the absence of this proposal.
C. Effective Date and Enforcement Policy
The Department contemplates making the safe harbor and the proposed
amendments to paragraph (a)(1) and (f)(1) of 2510.3-102 effective on
the date of publication of the final regulation in the Federal
Register. The safe harbor will provide a means for certain employers to
assure themselves that they are not holding plan assets, without having
to determine that participant contributions were forwarded to the plan
at the earliest reasonable date. By providing such assurance, the safe
harbor will grant or recognize an exemption or relieve a restriction
within the meaning of 5 U.S.C. 553(d)(1). Moreover, the safe harbor
will encourage certain employers to take immediate steps to review
their systems and, if necessary, shorten the period within which
participant contributions are forwarded to the plan in order to take
advantage of the safe harbor and, thereby, extend the benefit of
earlier contributions to participants and beneficiaries earlier than
might otherwise occur with a deferred effective date. In this regard,
the Department invites comments concerning the effective date of the
final safe harbor amendment.
Before the effective date of the final safe harbor regulation, the
Department will not assert a violation of ERISA based on the general
rule that participant contributions or loan repayments become plan
assets on the earliest date on which they can reasonably be segregated
from the employer's general assets, so long as such contributions or
repayments to a plan with fewer than 100 participants have been
transferred to the plan in accordance with the 7-business day safe
harbor period in this proposal.
D. Regulatory Impact Analysis
Summary
The proposed safe harbor will provide employers with increased
certainty that their remittance practices, to the extent that they meet
the safe harbor time limits, will be deemed to comply with the
regulatory requirement that participant contributions be forwarded to
the plan on the earliest date on which they can reasonably be
segregated from the employer's general assets. This increased certainty
will produce benefits to employers, participants, and beneficiaries by
reducing disputes over compliance and allowing easier oversight of
remittance practices. In addition, the tendency to conform to the safe
harbor time limit may serve to reduce the existing variations in
remittance times, providing increased certainty for employers and other
plan sponsors and participants. In the case of employers that expedite
their remittance practices to take advantage of the safe harbor, plan
participants may derive an additional benefit in the form of increased
investment earnings. The Department estimates that accelerated
remittances could result in $34.5 million in additional income to be
credited annually to participant accounts under the plans if no
employers choose to delay remittances in response to the safe harbor
and $15 million annually even if all eligible employers were to delay
remittances to the full duration of the safe harbor.
Costs attendant to the proposed safe harbor arise principally from
one-time start-up costs to alter remittance practices to conform to the
safe harbor and from any additional on-going administrative costs
attendant to quicker, and possibly more frequent, transmissions of
participant contributions from employers to plans. The Department
believes that the costs likely to arise from either source will be
small and that the benefits of this regulation will justify its
costs.\5\
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\5\ A key factor limiting the cost of this regulation is that it
requires no action of the part of any employer, plan, or
participant; it creates an incentive for employers to remit
participant contributions on more regular schedules.
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The data, methodology, and assumptions used in developing these
estimates are more fully described below in connection with the
Department's analyses under Executive Order 12866 and the Regulatory
Flexibility Act (RFA).
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 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
[[Page 11075]]
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 proposed regulation. OMB has
reviewed this regulatory action.
This proposal would establish a safe harbor rule for employers'
timely remittance of participant contributions to employee benefit
plans. The safe harbor, as proposed, is available only to employer
remittances of participant contributions to plans with fewer than 100
participants. Under the proposed rule, employers that remit participant
contributions within 7 business days after the date on which received
or withheld would be deemed to have complied with the requirement of 29
CFR 2510.3-102 to treat participant contributions as plan assets ``as
of the earliest date on which such contributions can reasonably be
segregated from the employer's general assets.''
This rule is likely to encourage some eligible employers whose
current remittance practices involve holding participant contributions
for longer than 7 business days to change their remittance practices to
conform to the 7-business day time limit. Because the rule is not
mandatory and changes in remittance practices are likely to entail some
cost to employers, only those employers that believe they will benefit
from the protection of the safe harbor will elect to take advantage of
the safe harbor.
Based on data from the Form 5500 filings for the year 2004, which
is the most recent available data, the Department estimates that the
proposed safe harbor would be available to an estimated 311,000 single
employer defined contributions plans with fewer than 100
participants.\6\ These plans hold approximately 18% of the $2.2
trillion held by all contributory single employer defined contribution
plans.\7\
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\6\ While the safe harbor is available to contributory defined
benefit plans and contributory multiemployer defined contribution
plans, the number of such plans affected by the regulation is very
small. The safe harbor also is available to contributory welfare
benefit plans; however, most of these plans are not affected by the
regulation, because they are not required to comply with ERISA's
trust requirement. Based on available data, contributory single
employer defined contribution plans constitute about 97 % of plans
that could benefit from the safe harbor. Accordingly, the Department
has focused its regulatory impact analysis on contributory single
employer defined contribution plans and believes that focusing on
such plans provides highly meaningful data for estimating potential
impacts.
\7\ This percentage is based on an EBSA tabulation of its 2004
Form 5500 research file.
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In order to analyze the potential economic impact of this proposal,
the Department examined data from a representative sample of
contributory single employer defined contribution pension plans.\8\
Using these data, the Department analyzed the current remittance
practices of the employers sponsoring these plans, extrapolated the
results to characterize the remittance practices of plans in general,
and projected the potential impact of this safe harbor rule. The
Department considered both the extent to which data on remittance
records of these plans reveal a preference or standard practice
regarding timing, and the extent to which changes in the length of time
between withholding and receipt by the plan might result in an increase
(or decrease) in investment income to participants' accounts.
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\8\ The sample data used in this analysis comes from data
collected in EBSA Employee Contribution Project 2004 Baseline
Project, which was undertaken by the Department in order to develop
a better understanding of current employer practices regarding
contributory individual account pension plans. The Project was based
on a representative sample of 487 contributory, single employer
defined contribution plans. In 2004, the Department collected
detailed data on the remittance practices of the employers
sponsoring the sample plans. The collected data covered the 12-month
period preceding the date in 2004 on which EBSA interviewed the
employer-sponsor and included, for example, the exact dates on which
wages were withheld from employees and the exact dates on which
participant contributions were deposited in the plan's accounts. For
purposes of this analysis, the sample data has been weighted to the
2004 Form 5500 universe of contributory, single employer defined
contribution plans.
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The sample data indicate that employers' remittance patterns for
participant contributions to plans vary substantially, both across
payroll periods of an individual employer and across employers. Based
on analysis of these data, the Department has concluded that most
employers sponsoring plans with fewer than 100 participants will not
find it difficult to take advantage of the proposed safe harbor.\9\
Twenty-one percent of all plans with fewer than 100 participants for
which data was obtained had remittance times within 7 business days for
all pay periods; an additional 69% remitted participant contributions
for at least some of the employer's payroll periods within 7 business
days. Based on this data, the Department has concluded that a 7-
business day safe harbor would be achievable for a large majority of
the contributory plans and would reduce the time taken to make at least
some deposits to a substantial proportion of contributory plans. The
Department recognizes that to take advantage of the safe harbor, many
of the firms that currently remit employee contributions within 7
business days for some, but not all, pay periods would have to change
their remittance schedule from monthly remittances to remittances
following each weekly or biweekly pay period.
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\9\ The data indicate that 90% of plans with fewer than 100
participants currently receive at least some participant
contributions within 7 business days after withholding.
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The Department anticipates that a substantial number of employers
that currently take longer than 7 business days to remit participant
contributions will speed up their remittances in order to take
advantage of the safe harbor. At the same time, it is possible that
some employers that currently remit participant contributions more
quickly than the proposed safe harbor rule will slow their remittances
due to the safe harbor. Such behavior might benefit the remitting
employers by reducing their administrative costs and by increasing the
time they are holding the remittances. However, the Department believes
that only a small fraction of that group, if any, would elect to incur
the expense and risk of negative participant reaction that might arise
from slowing down their remittances to take full advantage of the safe
harbor time period, especially because the amount of the potential
income transfer on a per-plan basis is very small.\10\ The potential
consequences of reliance on the safe harbor for earnings on participant
contributions are further described in the Benefits section below.
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\10\ The employers having the most to gain from delaying
remittances to the full extent that would satisfy the safe harbor
would be those who currently remit employee contributions most
promptly. For example, an employer that currently remits
contributions on the day they are received or withheld and responds
to the safe harbor by delaying remittances to the 7-business day
safe harbor limit would gain use of the funds for 7 business days.
At an annual rate of 8%, the value of the float gain would be less
than one-quarter of one percent of employee contributions.
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Costs
On the basis of information from EBSA's Employee Contributions
Project 2004 Baseline Project (``ECP''), \11\ the Department believes
that an estimated 21% of eligible single employer defined contribution
plans (approximately 64,000 plans) currently receive all participant
contributions within 7 or fewer business days. The employers that
sponsor such plans would not have to modify their current systems and,
as a
[[Page 11076]]
result, would incur no additional costs to obtain the compliance
certainty available under the safe harbor provisions. On the other
hand, 10% of the eligible plans (approximately 32,000 plans)
consistently receive participant contributions later than 7 business
days from the date of the employer's receipt or withholding.\12\ The
remaining 69% of the eligible plans (approximately 215,000 plans) are
estimated to receive participant contributions within 7 business days
for some, but not all, of their payroll dates, and the Department
assumes that these employers would have to make only minor
modifications in order to take advantage of the safe harbor.
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\11\ See fn. 8, supra.
\12\ For purposes of this analysis, it is assumed that the
sponsors of these plans would have to make significant modification
to their remittance practices to take advantage of the safe harbor.
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In deciding whether to rely on the safe harbor, employers will
weigh the benefits of compliance certainty against the cost of changes
needed to make quicker and possibly more frequent deposits. Because the
cost of modifying remittance practices or systems will depend, to some
extent, on the length of time currently taken to make remittances, the
Department believes it is reasonable to assume that those employers
currently transmitting some of the participant contributions within an
8 to 14 day period may find it less expensive to modify their practices
to take advantage of the safe harbor than employers currently operating
under remittance practices or systems with longer delays. The cost to
the former group of employers to shorten the remittance period to
conform to the safe harbor may be modest or negligible. However, the
Department has no current, reliable data concerning the cost of
required changes relating to shortening the remittance period for
participant contributions and therefore did not attempt to estimate
that cost. Because conformance to the safe harbor is voluntary, the
Department believes that the transition cost for employers electing to
conform will be offset by elimination of the current cost attributable
to existing uncertainty about how to meet the ``earliest date''
standard of Sec. 2510.3-102. Those employers that already conform will
not incur any costs, but will benefit from the safe harbor. The
Department specifically invites information and comments on this point.
Benefits
The rule will produce benefits for both participants and employers
in the form of increased certainty regarding timely remittance of
participant contributions to plans. This increased certainty will
decrease costs for both employers and participants by reducing the need
to determine, on an individualized basis in light of particular
circumstances, whether timely remittances have been made. Employers
that conform to the safe harbor will also benefit by obviating the need
to determine and monitor how quickly participant contributions can be
segregated from their general assets. They also will face a reduced
risk of challenges to their particular remittance practices from
participants and the Department.
In the case of plan sponsors that elect to expedite the deposit of
participant contributions to take advantage of the safe harbor,
contributions will be credited to the investment accounts earlier than
previously and will be able to accrue investment earnings for a longer
time period. The Department has calculated these potential investment
gains, but acknowledges that lack of knowledge about how employers will
react to a regulatory safe harbor renders these estimates uncertain.
If, for illustration, the safe harbor results in a 7-business day
remittance of all remittances that are currently taking more than 7
business days, then the regulatory safe harbor would result in an
estimated additional $34.5 million in investment earning for
participants each year.\13\ These potential gains would be reduced by
any losses that would occur due to any slow-down in response to the
safe harbor by employers with currently quicker remittance times. The
Department, however, believes it unlikely that a significant fraction
of employers would slow down remittances for the sole purpose of taking
advantage of the minor \14\ income transfer resulting from retaining
contributions for the full safe harbor period.\15\
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\13\ The Department has assumed an average annual return of 8.3%
for pension plan assets. This rate is an estimate of the long-term
rate of return on defined contribution plan assets implicit in the
flow of funds account of the Federal Reserve.
\14\ The employers having the most to gain from delaying
remittances to the full extent that would satisfy the safe harbor
would be those who currently remit employee contributions most
promptly. For example, an employer that currently remits
contributions on the day they are withheld and responds to the safe
harbor by delaying remittances to the 7-business day safe harbor
limit would gain use of the funds for 7 business days. Valuing the
float gain at an annual rate of 8%, its value would be less than
one-quarter of one percent of employee contributions.
\15\ If all employers that currently remit contributions in
fewer than 7 days were to slow down their remittance times to 7
days, participants might experience transfer losses of as much as
$19.5 million annually, but would nonetheless likely experience an
aggregate net gain of $14 million.
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Alternatives Considered
The Department's consideration of alternatives primarily focused on
striking the right balance between a time frame that is not so short as
to foreclose any meaningful number of plans from taking advantage of
the safe harbor and a time frame that is not so long as to create
financial incentives for employers to hold participant contributions
longer that necessary, taking into account current practices. Among
others, the Department considered the following two alternative time
periods: (1) A 5-business day safe harbor, and (2) a 10-business day
safe harbor. After reviewing the available data, however, the
Department rejected these alternatives in favor of the proposed 7-
business day safe harbor for the reasons discussed below.
The 7-business day safe harbor is likely to encourage eligible
employers whose remittance practices involve holding participant
contributions for longer than 7 business days to change their
remittance practices to conform to the 7-business day safe harbor time
limit. Currently, only 12 percent of the eligible single employer
defined contribution plans consistently receive remittances within 5
business days, compared to the 21 percent that consistently receive
remittances within 7 business days. Although a 5-business day safe
harbor could provide higher potential gains ($40.5 million at the
highest maximum estimate) and lower potential losses ($12.2 million) to
participants if employers choose to conform to the safe harbor, the
shorter remittance period would likely make it unattractive to many
employers, because the shorter safe harbor would increase the disparity
from current practices. Any employer anticipating large costs of
compliance with the safe harbor might not be convinced that its
benefits would be sufficient to justify changing its remittance
practices. If, as a result, too few employers adopt the safe harbor,
the regulation might fail to produce the intended benefit that would
flow from the certainty of uniform remittance practices on which
employers and participants can rely.
The 10-business day safe harbor, in contrast, was considered to
represent little compliance burden, since currently 29 percent of
eligible single employer defined contribution plans receive remittances
consistently within 10 business days and 94 percent receive remittances
that quickly for at least some pay periods. However, because a large
proportion of eligible plans
[[Page 11077]]
currently receive some or all participant contributions more quickly, a
safe harbor of 10 business days would entail some risk of producing a
net aggregate loss of investment income to participant accounts as
compared with current practice.\16 \
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\16\ If all currently faster remittances were delayed until the
tenth business day, annual investment earnings credited to
participant accounts could be reduced by as much as $32.3 million.
Accelerating all currently slower remittances to the tenth business
day would increase such earnings by $27.4 million resulting in an
aggregate annual loss of $4.9 million.
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As part of the ECP, EBSA investigators also made judgments as to
reasonable periods for each remittance. These data show that while
remittance within 5 business days was consistently reasonable for 48%
of eligible plans, that percentage increased to 61% by extending the
reasonable period to 7 business days. Thus, the two-day longer
reasonable period also has the advantage of being consistently
reasonable for a clear majority of eligible plans. A further extension
of the safe harbor to 10 business days would further increase (to 81%)
the percentage of plans for which the safe harbor is consistently
reasonable, but was not proposed because it would risk producing net
investment losses for participants if employers were to delay
remittances to the full extent permitted under the safe harbor.\17\
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\17\ EBSA estimates that if the safe harbor were set at 10
business days, then potential losses to participants of $32 million
would exceed potential gains of $27 million.
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Taking into account the potential costs and benefits presented by
the various alternative safe harbors, the Department believes that the
proposed 7-business day safe harbor would best balance the current
practices of employers and the potential costs to them of change, as
well as the value to participants of encouraging quicker transmission
of contributions. As explained earlier, the available data indicate
that employers sponsoring plans with fewer than 100 participants are
generally able to transmit participant contributions within 7 business
days of withholding or receipt. Furthermore, the impact of a 7-business
day safe harbor is anticipated to be generally favorable to
participants and to result in aggregate net gains to their accounts,
even in the unlikely event that all employers that currently remit
contributions more quickly than 7 business days were to slow down their
remittances to the maximum duration of the safe harbor.
Paperwork Reduction Act
The Department of Labor, as part of its continuing effort to reduce
paperwork and respondent burden, conducts a preclearance consultation
program to provide the general public and Federal agencies with an
opportunity to comment on proposed and continuing collections of
information in accordance with the Paperwork Reduction Act of 1995
(PRA) (44 U.S.C. 3506(c)(2)(A)). This helps to ensure that the public
can clearly understand the Department's collection instructions and
provide the requested information in the desired format and that the
Department minimizes the public's reporting burden (in both time and
financial resources) and can properly assess the impact of its
collection requirements.
On August 7, 1996 (61 FR 41220), the Department published in the
Federal Register a proposed amendment to the Regulation Relating to a
Definition of ``Plan Assets''--Participant Contributions (29 CFR
2510.3-102), and simultaneously submitted an information collection
request (ICR) to the Office of Management and Budget (OMB) on the
paperwork requirements arising from the proposal. This amendment
created a procedure through which an employer could extend the maximum
period for depositing participant contributions by an additional 10
business days with respect to participant contributions for a single
month. OMB approved the ICR under OMB control number 1210-0100. The
current proposed amendment of Sec. 2510.3-102 contained in this notice
does not propose or make any change to the extension procedure or add
any other information collection, and, accordingly, the Department does
not intend to submit this proposal to OMB for review under the PRA.
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 are likely to
have a significant economic impact on a substantial number of small
entities. Unless an agency certifies that a proposed rule is not likely
to have a significant economic impact on a substantial number of small
entities, section 603 of the RFA requires that the agency present an
initial regulatory flexibility analysis at the time of the publication
of the notice of proposed rulemaking describing the impact of the rule
on small entities and seeking public comment on such impact. Small
entities include small businesses, organizations and governmental
jurisdictions.
For purposes of analysis under the RFA, the Employee Benefits
Security Administration (EBSA) continues to consider a small entity to
be an employee benefit plan with fewer than 100 participants.\18\ 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 satisfying certain other requirements.
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\18\ The Department consulted with the Small Business
Administration in making this determination as required by 5 U.S.C.
603(c) and 13 CFR 121.903(c).
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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 that 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 requests comments on the appropriateness of the
size standard used in evaluating the impact of this proposed rule on
small entities.
EBSA has preliminarily determined that while this rule will impact
a substantial number of small entities, it will not have a significant
economic impact on these entities. As explained above, the provision
being added to the regulation is a safe harbor, compliance with which
is wholly voluntary on the part of the employer. Because the proposal
would create a safe harbor, rather than a mandatory rule, it is
unlikely that any employer will elect to take advantage of the safe
harbor if the employer concludes that the benefits of complying with
the safe harbor time limit do not exceed the costs of such compliance.
Therefore, the Department believes that most of these small plans
[[Page 11078]]
will elect to take advantage of the safe harbor, provided that doing so
does not significantly increase their costs or that any cost increase
is offset by reductions in other administrative costs attendant to
compliance uncertainty. The Department specifically requests comments
on the potential impact of the proposed rule on small entities.
Small Business Regulatory Enforcement Fairness Act
The proposed rule being issued here is subject to the provisions of
the Small Business Regulatory Enforcement Fairness Act of 1996 (5
U.S.C. 801 et seq.) and if finalized will be 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 million
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 proposed 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 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 proposed 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.
Statutory Authority
This regulation is proposed pursuant to the authority in section
505 of ERISA (Pub. L. 93-406, 88 Stat. 894; 29 U.S.C. 1135) and section
102 of Reorganization Plan No. 4 of 1978 (43 FR 47713, October 17,
1978), effective December 31, 1978 (44 FR 1065, January 3, 1979), 3 CFR
1978 Comp. 332, and under Secretary of Labor's Order No. 1-2003, 68 FR
5374 (Feb. 3, 2003).
List of Subjects in 29 CFR Part 2510
Employee benefit plans, Employee Retirement Income Security Act,
Pensions, Plan assets.
Accordingly, 29 CFR part 2510 is proposed to be amended as follows:
PART 2510--DEFINITION OF TERMS USED IN SUBCHAPTERS C, D, E, F, AND
G OF THIS CHAPTER
1. The authority citation for part 2510 continues to read as
follows:
Authority: 29 U.S.C. 1002(2), 1002(21), 1002(37), 1002(38),
1002(40), 1031, and 1135; Secretary of Labor's Order 1-2003, 68 FR
5374; Sec. 2510.3-101 also issued under sec. 102 of Reorganization
Plan No. 4 of 1978, 43 FR 47713, 3 CFR, 1978 Comp., p. 332 and E.O.
12108, 44 FR 1065, 3 CFR, 1978 Comp., p. 275, and 29 U.S.C. 1135
note. Sec. 2510.3-102 also issued under sec. 102 of Reorganization
Plan No. 4 of 1978, 43 FR 47713, 3 CFR, 1978 Comp., p. 332 and E.O.
12108, 44 FR 1065, 3 CFR, 1978 Comp., p. 275. Section 2510.3-38 is
also issued under Sec. 1, Pub. L. 105-72, 111 Stat. 1457.
2. Revise Sec. 2510.3-102, paragraphs (a) and (f), to read as
follows:
Sec. 2510.3-102 Definition of ``plan assets''--participant
contributions.
(a)(1) General rule. For purposes of subtitle A and parts 1 and 4
of subtitle B of title 1 of ERISA and section 4975 of the Internal
Revenue Code only (but without any implication for and may not be
relied upon to bar criminal prosecutions under 18 U.S.C. 664), the
assets of the plan include amounts (other than union dues) that a
participant or beneficiary pays to an employer, or amounts that a
participant has withheld from his wages by an employer, for
contribution or repayment of a participant loan to the plan, as of the
earliest date on which such contributions or repayments can reasonably
be segregated from the employer's general assets.
(2) Safe harbor. For purposes of paragraph (a)(1) of this section,
in the case of a plan with fewer than 100 participants at the beginning
of the plan year, any amount deposited with such plan not later than
the 7th business day following the day on which such amount is received
by the employer (in the case of amounts that a participant or
beneficiary pays to an employer), or the 7th business day following the
day on which such amount would otherwise have been payable to the
participant in cash (in the case of amounts withheld by an employer
from a participant's wages), shall be deemed to be contributed or
repaid to such plan on the earliest date on which such contributions or
participant loan repayments can reasonably be segregated from the
employer's general assets.
* * * * *
(f) Examples. The requirements of this section are illustrated by
the following examples:
(1) Employer A sponsors a 401(k) plan. There are 30 participants in
the 401(k) plan. A has one payroll period for its employees and uses an
outside payroll processing service to pay employee wages and process
deductions. A has established a system under which the payroll
processing service provides payroll deduction information to A within 1
business day after the issuance of paychecks. A checks this information
for accuracy within 5 business days and then forwards the withheld
employee contributions to the plan. The amount of the total withheld
employee contributions is deposited with the trust that is maintained
under the plan on the 7th business day following the date on which the
employees are paid. Under the safe harbor in paragraph (a)(2) of this
section, when the participant contributions are deposited with the plan
on the 7th business day following a pay date, the participant
contributions are deemed to be contributed to the plan on the earliest
date on which such contributions can reasonably be segregated from A's
general assets.
(2) Employer B is a large national corporation which sponsors a
401(k) plan with 600 participants. B has several payroll centers and
uses an outside payroll processing service to pay employee wages and
process deductions. Each payroll center has a different pay period.
Each center maintains separate accounts on its books for purposes of
accounting for that center's payroll deductions and provides the
outside payroll processor the data necessary to prepare employee
paychecks and process deductions. The payroll processing service issues
the employees' paychecks and deducts all payroll taxes and elective
employee deductions. The payroll processing service forwards the
employee payroll deduction data to B on the date of issuance of
paychecks. B checks this data for accuracy and transmits this data
along with the employee 401(k) deferral funds to the plan's investment
firm
[[Page 11079]]
within 3 business days. The plan's investment firm deposits the
employee 401(k) deferral funds into the plan on the day received from
B. The assets of B's 401(k) plan would include the participant
contributions no later than 3 business days after the issuance of
paychecks.
(3) Employer C sponsors a self-insured contributory group health
plan with 90 participants. Several former employees have elected,
pursuant to the provisions of ERISA section 602, 29 U.S.C. 1162, to pay
C for continuation of their coverage under the plan. These checks
arrive at various times during the month and are deposited in the
employer's general account at bank Z. Under paragraphs (a) and (b) of
this section, the assets of the plan include the former employees'
payments as soon after the checks have cleared the bank as C could
reasonably be expected to segregate the payments from its general
assets, but in no event later than 90 days after the date on which the
former employees' participant contributions are received by C. If
however, C deposits the former employees' payments with the plan no
later than the 7th business day following the day on which they are
received by C, the former employees' participant contributions will be
deemed to be contributed to the plan on the earliest date on which such
contributions can reasonably be segregated from C's general assets.
* * * * *
Signed at Washington, DC, this 21st day of February, 2008.
Bradford P. Campbell,
Assistant Secretary, Employee Benefits Security Administration
Department of Labor.
[FR Doc. E8-3596 Filed 2-28-08; 8:45 am]
BILLING CODE 4510-29-P