PRIA, Government Policy, Made Personal

Summary

People who manage or touch the money or property of an employee benefit plan must have a bond. Some people are not required to be bonded: administrators, officers, and employees of a plan that pays benefits only from a union’s or employer’s general assets; brokers or dealers registered under 15 U.S.C. 78o(b) who follow self‑regulatory fidelity bond rules; and corporations that act as trustees or insurers, are supervised by federal or state authorities, and have combined capital and surplus above an amount set by the Secretary (at least $1,000,000). A bank without FDIC insurance must meet state bonding rules that the Secretary finds equivalent to federal rules to be exempt. The bond amount is set at the start of each plan fiscal year. It must be at least 10% of the funds handled, never less than $1,000, and normally not more than $500,000. The Secretary can order a higher limit after notice and a hearing, but the 10% rule still applies. For plans that hold employer securities or for pooled employer plans, the $500,000 cap is replaced by $1,000,000. Bonds must protect the plan against fraud or dishonesty, be backed by an approved corporate surety, and be in an approved form. It is illegal to handle plan funds without the required bond or to let someone who is not properly bonded do so. It is also illegal to get a bond from a company in which the plan or an interested party has control or a major financial stake. The Secretary can make rules and may exempt a plan if other protections or the plan’s finances adequately protect participants.

Title 29, §1112

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(a)Requisite bonding of plan officials

Every fiduciary of an employee benefit plan and every person who handles funds or other property of such a plan (hereafter in this section referred to as “plan official”) shall be bonded as provided in this section; except that—

(1)where such plan is one under which the only assets from which benefits are paid are the general assets of a union or of an employer, the administrator, officers, and employees of such plan shall be exempt from the bonding requirements of this section,

(2)no bond shall be required of any entity which is registered as a broker or a dealer under section 78o(b) of title 15 if the broker or dealer is subject to the fidelity bond requirements of a self-regulatory organization (within the meaning of section 78c(a)(26) of title 15).

(3)no bond shall be required of a fiduciary (or of any director, officer, or employee of such fiduciary) if such fiduciary—

(A)is a corporation organized and doing business under the laws of the United States or of any State;

(B)is authorized under such laws to exercise trust powers or to conduct an insurance business;

(C)is subject to supervision or examination by Federal or State authority; and

(D)has at all times a combined capital and surplus in excess of such a minimum amount as may be established by regulations issued by the Secretary, which amount shall be at least $1,000,000. Paragraph (2) shall apply to a bank or other financial institution which is authorized to exercise trust powers and the deposits of which are not insured by the Federal Deposit Insurance Corporation, only if such bank or institution meets bonding or similar requirements under State law which the Secretary determines are at least equivalent to those imposed on banks by Federal law.

The amount of such bond shall be fixed at the beginning of each fiscal year of the plan. Such amount shall be not less than 10 per centum of the amount of funds handled. In no case shall such bond be less than $1,000 nor more than $500,000, except that the Secretary, after due notice and opportunity for hearing to all interested parties, and after consideration of the record, may prescribe an amount in excess of $500,000, subject to the 10 per centum limitation of the preceding sentence. For purposes of fixing the amount of such bond, the amount of funds handled shall be determined by the funds handled by the person, group, or class to be covered by such bond and by their predecessor or predecessors, if any, during the preceding reporting year, or if the plan has no preceding reporting year, the amount of funds to be handled during the current reporting year by such person, group, or class, estimated as provided in regulations of the Secretary. Such bond shall provide protection to the plan against loss by reason of acts of fraud or dishonesty on the part of the plan official, directly or through connivance with others. Any bond shall have as surety thereon a corporate surety company which is an acceptable surety on Federal bonds under authority granted by the Secretary of the Treasury pursuant to section 9304–9308 of title 31. Any bond shall be in a form or of a type approved by the Secretary, including individual bonds or schedule or blanket forms of bonds which cover a group or class. In the case of a plan that holds employer securities (within the meaning of section 1107(d)(1) of this title) or in the case of a pooled employer plan (as defined in section 1002(43) of this title), this subsection shall be applied by substituting “$1,000,000” for “$500,000” each place it appears.

(b)Unlawful acts

It shall be unlawful for any plan official to whom subsection (a) applies, to receive, handle, disburse, or otherwise exercise custody or control of any of the funds or other property of any employee benefit plan, without being bonded as required by subsection (a) and it shall be unlawful for any plan official of such plan, or any other person having authority to direct the performance of such functions, to permit such functions, or any of them, to be performed by any plan official, with respect to whom the requirements of subsection (a) have not been met.

(c)Conflict of interest prohibited in procuring bonds

It shall be unlawful for any person to procure any bond required by subsection (a) from any surety or other company or through any agent or broker in whose business operations such plan or any party in interest in such plan has any control or significant financial interest, direct or indirect.

(d)Exclusiveness of statutory basis for bonding requirement for persons handling funds or other property of employee benefit plans

Nothing in any other provision of law shall require any person, required to be bonded as provided in subsection (a) because he handles funds or other property of an employee benefit plan, to be bonded insofar as the handling by such person of the funds or other property of such plan is concerned.

(e)Regulations

The Secretary shall prescribe such regulations as may be necessary to carry out the provisions of this section including exempting a plan from the requirements of this section where he finds that (1) other bonding arrangements or (2) the overall financial condition of the plan would be adequate to protect the interests of the beneficiaries and participants. When, in the opinion of the Secretary, the administrator of a plan offers adequate evidence of the financial responsibility of the plan, or that other bonding arrangements would provide adequate protection of the beneficiaries and participants, he may exempt such plan from the requirements of this section.

Notes & Related Subsidiaries

Editorial Notes

Codification In subsec. (a), “section 9304–9308 of title 31” substituted for “sections 6 through 13 of title 6, United States Code” on authority of Pub. L. 97–258, § 4(b), Sept. 13, 1982, 96 Stat. 1067, the first section of which enacted Title 31, Money and Finance.

Amendments

2019—Subsec. (a). Pub. L. 116–94, in concluding provisions, inserted “or in the case of a pooled employer plan (as defined in section 1002(43) of this title)” after “section 1107(d)(1) of this title”. 2006—Subsec. (a). Pub. L. 109–280, § 622(a), inserted at end of concluding provisions “In the case of a plan that holds employer securities (within the meaning of section 1107(d)(1) of this title), this subsection shall be applied by substituting ‘$1,000,000’ for ‘$500,000’ each place it appears.” Subsec. (a)(2), (3). Pub. L. 109–280, § 611(b), added par. (2) and redesignated former par. (2) as (3).

Statutory Notes and Related Subsidiaries

Effective Date

of 2019 AmendmentAmendment by Pub. L. 116–94 applicable to plan years beginning after Dec. 31, 2020, see section 101(e) of Pub. L. 116–94, set out as a note under section 408 of Title 26, Internal Revenue Code.

Effective Date

of 2006 AmendmentAmendment by section 611(b) of Pub. L. 109–280 applicable to plan years beginning after Aug. 17, 2006, see section 611(h)(2) of Pub. L. 109–280, set out as a note under section 4975 of Title 26, Internal Revenue Code. Pub. L. 109–280, title VI, § 622(b), Aug. 17, 2006, 120 Stat. 979, provided that: “The amendment made by this section [amending this section] shall apply to plan years beginning after December 31, 2007.”

Regulations

Secretary authorized, effective Sept. 2, 1974, to promulgate

Regulations

wherever provisions of this part call for the promulgation of

Regulations

, see section 1031 and 1114 of this title.

§1112 Bonding

Summary

Title 29, §1112

Notes & Related Subsidiaries

Editorial Notes

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Regulations

Regulations

Regulations

Citations & Metadata