PRIA, Government Policy, Made Personal

Summary

Applies to most employee benefit plans named in section 1003(a) unless they are exempt under section 1003(b). Two kinds of plans are not covered: unfunded plans kept by an employer just for a small group of top managers or highly paid workers, and certain partner payment agreements under section 736 of title 26. If a plan owns a security from a registered investment company or holds an insurance policy, that security or policy is treated as an asset of the plan. But owning those does not by itself make the investment company’s or insurer’s other assets part of the plan. The Secretary must write rules with deadlines: propose rules by June 30, 1997, allow public comment until September 30, 1997, and issue final rules by December 31, 1997. Those rules only apply to policies the insurer issued on or before December 31, 1998, and they take effect 18 months after the rules are final for those policies. The rules must be practical and protect plans and participants. For policies that do not guarantee benefit amounts, the rules must, among other things, require an independent plan fiduciary to approve the purchase, require insurers to explain how income and expenses are allocated and to report actual returns, disclose options using separate accounts and related risks, and require prudent management of insurer general account assets. Following these rules counts as following sections 1104, 1106, and 1107. The rules won’t create liability for conduct that happened before 18 months after they become final, except in limited cases to stop avoidance or for criminal breaches. “Insurer” means an insurance company allowed to do business in a State. “Guaranteed benefit policy” means a policy that promises specific benefit amounts (including certain separate-account surplus). “Policy” also covers contracts.

Title 29, §1101

Labor, Source: USLM XML via OLRC

(a)Scope of coverage

This part shall apply to any employee benefit plan described in section 1003(a) of this title (and not exempted under section 1003(b) of this title), other than—

(1)a plan which is unfunded and is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees; or

(2)any agreement described in section 736 of title 26, which provides payments to a retired partner or deceased partner or a deceased partner’s successor in interest.

(b)Securities or policies deemed to be included in plan assets

For purposes of this part:

(1)In the case of a plan which invests in any security issued by an investment company registered under the Investment Company Act of 1940 [15 U.S.C. 80a–1 et seq.], the assets of such plan shall be deemed to include such security but shall not, solely by reason of such investment, be deemed to include any assets of such investment company.

(2)In the case of a plan to which a guaranteed benefit policy is issued by an insurer, the assets of such plan shall be deemed to include such policy, but shall not, solely by reason of the issuance of such policy, be deemed to include any assets of such insurer. For purposes of this paragraph:

(A)The term “insurer” means an insurance company, insurance service, or insurance organization, qualified to do business in a State.

(B)The term “guaranteed benefit policy” means an insurance policy or contract to the extent that such policy or contract provides for benefits the amount of which is guaranteed by the insurer. Such term includes any surplus in a separate account, but excludes any other portion of a separate account.

(c)Clarification of application of ERISA to insurance company general accounts

(1)(A)Not later than June 30, 1997, the Secretary shall issue proposed regulations to provide guidance for the purpose of determining, in cases where an insurer issues 1 or more policies to or for the benefit of an employee benefit plan (and such policies are supported by assets of such insurer’s general account), which assets held by the insurer (other than plan assets held in its separate accounts) constitute assets of the plan for purposes of this part and section 4975 of title 26 and to provide guidance with respect to the application of this subchapter to the general account assets of insurers.

(B)The proposed regulations under subparagraph (A) shall be subject to public notice and comment until September 30, 1997.

(C)The Secretary shall issue final regulations providing the guidance described in subparagraph (A) not later than December 31, 1997.

(D)Such regulations shall only apply with respect to policies which are issued by an insurer on or before December 31, 1998, to or for the benefit of an employee benefit plan which is supported by assets of such insurer’s general account. With respect to policies issued on or before December 31, 1998, such regulations shall take effect at the end of the 18-month period following the date on which such regulations become final.

(2)The Secretary shall ensure that the regulations issued under paragraph (1)—

(A)are administratively feasible, and

(B)protect the interests and rights of the plan and of its participants and beneficiaries (including meeting the requirements of paragraph (3)).

(3)The regulations prescribed by the Secretary pursuant to paragraph (1) shall require, in connection with any policy issued by an insurer to or for the benefit of an employee benefit plan to the extent that the policy is not a guaranteed benefit policy (as defined in subsection (b)(2)(B))—

(A)that a plan fiduciary totally independent of the insurer authorize the purchase of such policy (unless such purchase is a transaction exempt under section 1108(b)(5) of this title),

(B)that the insurer describe (in such form and manner as shall be prescribed in such regulations), in annual reports and in policies issued to the policyholder after the date on which such regulations are issued in final form pursuant to paragraph (1)(C)—

(i)a description of the method by which any income and expenses of the insurer’s general account are allocated to the policy during the term of the policy and upon the termination of the policy, and

(ii)for each report, the actual return to the plan under the policy and such other financial information as the Secretary may deem appropriate for the period covered by each such annual report,

(C)that the insurer disclose to the plan fiduciary the extent to which alternative arrangements supported by assets of separate accounts of the insurer (which generally hold plan assets) are available, whether there is a right under the policy to transfer funds to a separate account and the terms governing any such right, and the extent to which support by assets of the insurer’s general account and support by assets of separate accounts of the insurer might pose differing risks to the plan, and

(D)that the insurer manage those assets of the insurer which are assets of such insurer’s general account (irrespective of whether any such assets are plan assets) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims, taking into account all obligations supported by such enterprise.

(4)Compliance by the insurer with all requirements of the regulations issued by the Secretary pursuant to paragraph (1) shall be deemed compliance by such insurer with section 1104, 1106, and 1107 of this title with respect to those assets of the insurer’s general account which support a policy described in paragraph (3).

(5)(A)Subject to subparagraph (B), any regulations issued under paragraph (1) shall not take effect before the date on which such regulations become final.

(B)No person shall be subject to liability under this part or section 4975 of title 26 for conduct which occurred before the date which is 18 months following the date described in subparagraph (A) on the basis of a claim that the assets of an insurer (other than plan assets held in a separate account) constitute assets of the plan, except—

(i)as otherwise provided by the Secretary in regulations intended to prevent avoidance of the regulations issued under paragraph (1), or

(ii)as provided in an action brought by the Secretary pursuant to paragraph (2) or (5) of section 1132(a) of this title for a breach of fiduciary responsibilities which would also constitute a violation of Federal or State criminal law.

The Secretary shall bring a cause of action described in clause (ii) if a participant, beneficiary, or fiduciary demonstrates to the satisfaction of the Secretary that a breach described in clause (ii) has occurred.

(6)Nothing in this subsection shall preclude the application of any Federal criminal law.

(7)For purposes of this subsection, the term “policy” includes a contract.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Investment Company Act of 1940, referred to in subsec. (b)(1), is title I of act Aug. 22, 1940, ch. 686, 54 Stat. 789, which is classified generally to subchapter I (§ 80a–1 et seq.) of chapter 2D of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 80a–51 of Title 15 and Tables.

Amendments

1996—Subsec. (c). Pub. L. 104–188 added subsec. (c). 1989—Subsec. (a)(2). Pub. L. 101–239 substituted “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”, which for purposes of codification was translated as “title 26” thus requiring no change in text.

Statutory Notes and Related Subsidiaries

Effective Date

of 1996 Amendment Pub. L. 104–188, title I, § 1460(b), Aug. 20, 1996, 110 Stat. 1822, provided that: “(1) In general.—Except as provided in paragraph (2), the amendment made by this section [amending this section] shall take effect on

January 1, 1975. “(2) Civil actions.—The amendment made by this section shall not apply to any civil action commenced before

November 7, 1995.”

Effective Date

of 1989 AmendmentAmendment by Pub. L. 101–239 effective, except as otherwise provided, as if included in the provision of the Tax Reform Act of 1986, Pub. L. 99–514, to which such amendment relates, see section 7891(f) of Pub. L. 101–239, set out as a note under section 1002 of this title. Plan

Amendments

Not Required Until January 1, 1998For provisions directing that if any

Amendments

made by subtitle D [§§ 1401–1465] of title I of Pub. L. 104–188 require an amendment to any plan or annuity contract, such amendment shall not be required to be made before the first day of the first plan year beginning on or after Jan. 1, 1998, see section 1465 of Pub. L. 104–188, set out as a note under section 401 of Title 26, Internal Revenue Code.

§1101 Coverage

Summary

Title 29, §1101

Notes & Related Subsidiaries

Editorial Notes

References in Text

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Amendments

Amendments

Citations & Metadata