White House Calls for Regulations to Be Finalized by November 1, 2008

• Reportable Events and Certain Other Notification Requirements: To conform to proposed changes to PBGC regulations on Premium Rates, which implement certain provisions of the Pension Protection Act of 2006 (PPA) that are effective beginning in 2008, and to change the way that unfunded vested benefits are determined among other things.
• Multiemployer Plan Withdrawal Liability: To implement provisions of the PPA that allow for changes in the methods for computing withdrawal liability and address adjustments in withdrawal liability if a plan is in critical status. (Proposed Regulation at 73 FR 14735, 3/19/08)
• Missing Participants: To implement PPA changes which allow certain terminating plans not covered by the existing Missing Participants program to participate in that program.
• Interest on Premium Overpayments: To implement PPA changes which authorize PBGC to pay interest on premium overpayments refunded to designated payors.
• Guaranteed Benefit Payments: To implement PPA changes regarding how PBGC pays benefits when it assumes trusteeship of a terminated pension plan, particularly with regard to the determination of guarantee limits.

• Policy Statement About Penalties: To replace a number of policy statements about penalties, which PBGC has issued over the last few years, with an updated and expanded set of policies codified in regulations. (Proposed Regulation at 66 FR 2856, 1/12/01; Proposed Participant Notice at 69 FR 25797, 5/7/04.)
• Rules for Administrative Review of Agency Decision: To clarify that the Agency's Appeals Board may refer certain categories of appeals under the Administrative Review of Agency Decisions to other PBGC departments and to remove determinations under ERISA § 4022A from the scope of review. (Proposed Regulation at 72 FR 59050, 10/18/07.)
• Annual Financial Reporting: To implement PPA changes to the rules for reporting Annual Financial and Actuarial Information under ERISA § 4010. (Proposed Regulation at 73 FR 9243, 2/20/08.)
• Information to Affected Parties: To implement PPA changes which require plan administrators and PBGC to provide to affected parties information, such as actuarial data or agency determinations, related to the process of terminating pension plans. (Proposed Regulation at 72 FR 68542, 12/5/07.)

• Highly Compensated Employee: To propose regulations under Code § 414(q).
• Cafeteria Plans: To provide guidance on cafeteria plans (employee welfare benefit plans allowing employees to choose between taxable benefits and nontaxable benefits). (Proposed Regulation at 72 FR 43938, 8/6/07.)
• Nonqualified Deferred Compensation: To provide guidance regarding the measurement of income inclusion and calculation of applicable taxes under Code § 409A.
• Notice Requirements for Certain Pension Amendments Significantly Reducing the Rate of Future Benefit Accrual. To provide guidance relating to the interaction of the requirements under Code § 4980F with a plan amendment that is permitted to reduce benefits accrued before the plan amendment's applicable amendment date. (Proposed Regulation at 73 FR 15101, 3/21/08.)
• Multi-Employer Plan Funding Guidance: To provide guidance relating to multi-employer defined benefit pension plans that are either in endangered or critical status, as necessary to implement the new rules set forth in Code § 432 that are effective for plan years beginning after 2007. (Proposed Regulation at 73 FR 14417, 3/18/08.)
• Accrual Rules for Defined Benefit Plans: To provide guidance on the application of the accrual rules for defined benefit plans in cases where plan benefits are determined on the basis of the greater of two or more separate formulas.
• Governmental Plans Reasonable Good Faith Interpretation of Required Minimum Distribution Rules: To provide guidance on governmental plans being treated as having complied with the required minimum distribution rules if they apply a reasonable good faith interpretation of Code § 401(a)(9).

• HIPAA Portability: Special Enrollment Procedures, Tolling, and Interaction With FMLA:To enhance the existing HIPAA portability regulations by tolling the running of certain time periods in certain circumstances, clarifying the procedures for requesting special enrollment, addressing how the HIPAA portability requirements apply to individuals taking leave under the Family and Medical Leave Act of 1993, and prescribing how to count the number of employees an employer has. (Proposed Regulation at 69 FR 78800, 12/30/04.)
• Medical and Accident Insurance Benefits Under Qualified Plans: To provide guidance under Code § 402(a) regarding the tax treatment of payments by qualified plans for medical or accident insurance. (Proposed Regulation at 72 FR 46421, 8/20/07.)
• Mortality Table for Determining Present Value: To provide guidelines regarding mortality tables to be used to determine present value for purposes of the qualified defined benefit plan funding requirements that will become effective in 2008. (Proposed Regulation at 72 FR 29456, 5/29/07.)
• Hybrid Retirement Plans: To provide guidance with respect to Code §§ 411(a)(13) and 411(b)(5). Code § 411(a)(13) provides rules relating to vesting and payment of benefits under tax-qualified hybrid defined benefit plans, and § 411(b)(5) provides age discrimination rules for tax-qualified defined benefit plans, including hybrid defined benefit plans. (Proposed Regulation at 72 FR 73680, 12/28/07.)
• Employer-Owned Life Insurance: To implement the statutory mandate to require reporting concerning employer-owned life insurance. (Proposed Regulation at 72 FR 63838, 11/13/07.)
• Benefit Restrictions For Underfunded Pension Plans: To provide guidance regarding the use of certain funding balances maintained for defined benefit pension plans and regarding benefit restrictions for certain underfunded defined benefit pension plans. (Proposed Regulation at 72 FR 50544, 8/31/07, as corrected.)
• Automatic Contribution Arrangements: To provide guidance on how a qualified cash or deferred arrangement can become a qualified automatic contribution arrangement and avoid the ADP test of section 401(k)(3)(A)(ii). The proposed regulations also provide guidance on how an automatic contribution arrangement can permit an employee to make withdrawals from an eligible automatic contribution arrangement that he/she did not wish to have the employer make. (Proposed Regulation at 72 FR 63144, 11/8/07.)
• HIPAA Newborns' and Mothers' Health Protection Act: To provide guidance for group health plans that provide benefits for hospital stays in connection with childbirth relating to requirements for minimum lengths of stay. (Interim and Proposed Regulations at 63 FR 57546 & 57565, 10/27/98.)
• Diversification Requirements for Certain Defined Contribution Plans: To provide guidance on the implementation of the new diversification requirements for certain defined contribution plans. (Proposed Regulation at 73 FR 421, 1/3/08.)
• Measurement of Liabilities and Assets for Pension Funding Purposes: To provide guidance on the determination of benefit liabilities and assets for purposes of the funding requirements that apply to single employer defined benefit pension plans. (Proposed Regulation at 72 FR 74215, 12/31/07.)

• Fiduciary Requirements for Disclosure in Participant-Directed Individual Account Plans: To ensure that the participants and beneficiaries in participant-directed individual account plans are provided the information they need, including information about fees and expenses, to make informed investment decisions. The rulemaking may include amendments to the regulation governing ERISA § 404(c). (Request for Information at 72 FR 20457, 4/25/07; see also Proposed Regulation on default investments at 71 FR 56806, 9/27/06, and 73 FR 23349, 4/30/08.)
• Prohibited Transaction Exemption for Provision of Investment Advice to Participants in Individual Account Plans: To provide guidance under new ERISA §§ 408(b)(14) and 408(g), which were added by PPA § 601. ERISA § 408(b)(14) is a prohibited transaction exemption that permits the provision of investment advice to participants or beneficiaries of certain individual account plans if the investment advice is provided under an "eligible investment advice arrangement," as defined in ERISA § 408(g). To qualify as an "eligible investment advice arrangement," the arrangement must either provide that any fees received by the adviser do not vary depending on the basis of any investment options selected, or use a computer model under an investment advice program that meets the criteria set forth in ERISA § 408(g) in connection with the provision of investment advice. ERISA § 408(g) also directs the Secretary of Labor to issue a model form for the required disclosure of fees. (Request for information at 71 FR 70429, 12/4/06.)
• Periodic Pension Benefit Statements: To provide guidance under ERISA § 105 as amended by PPA to require plans that are subject to ERISA to provide individual pension benefit statements. Generally, defined benefit plans must provide the statement every three years, with an annual alternative. Individual account plans that permit participant direction must provide the statement quarterly and individual account plans that do not permit participant direction must provide the statement annually. PPA directed the Department of Labor to provide a model statement within one year of enactment of the statute and the Department has been given interim final rulemaking authority. (Statutory Deadline 8/18/07.)

• HIPAA Portability: Special Enrollment Procedures, Tolling, and Interaction With FMLA: [See IRS entry above.]
• HIPAA Newborns' and Mothers' Health Protection Act: [See IRS entry above.]
• Definition of Plan Assets - Participant Contributions: To define when participant moneys paid to, or withheld by, an employer for contribution to an employee benefit plan constitute "plan assets" for purposes of title I of ERISA and the related prohibited transaction provisions of the Code. The regulation contains an amendment to the current regulation that will establish a safe harbor period of a specified number of business days during which certain moneys that a participant pays to, or has withheld by, an employer for contribution to a plan would not constitute "plan assets." (Proposed Regulation at 73 FR 11072, 2/29/08.)
• Standards Applicable to General Statutory Exemption for Services: To set forth the standards applicable to the exemption under ERISA § 408(b)(2) for contracting or making reasonable arrangements with a party in interest for office space or services. The regulation will ensure that plan fiduciaries are provided or have access to the information necessary to a determination of whether an arrangement for services is "reasonable" within the meaning of the statutory exemption. (Proposed Regulation at 72 FR 70988, 12/13/07.)
• Time and Order of Issuance of Domestic Relations Orders: To issue, not later than one year after the date of enactment of PPA, regulations clarifying the timing and order of domestic relations orders under ERISA § 206(d)(3). This rule will provide guidance to plan administrators, service providers, participants, and alternate payees on the qualified domestic relations order requirements under ERISA. (Interim Final Regulation at 72 FR 10070, 3/7/07.)
• Safe Harbor for Distributions from Terminated Individual Account Plans and Termination of Abandoned Individual Account Plans to Require Inherited IRAs for Missing NonSpouse Beneficiaries: To reflect changes to the Code, enacted as part of PPA, under which a distribution of a deceased plan participant's benefit from an eligible retirement plan may be directly transferred to an individual retirement plan established on behalf of the designated non-spouse beneficiary of such participant. (Interim Final Regulation at 72 FR 7516, 2/15/07.)
• Statutory Exemption for Cross-Trading of Securities: To implement the content requirements for the written cross-trading policies and procedures required under ERISA § 408(b)(19)(H) as amended by PPA, which exempts the purchase and sale of a security between an employee benefit plan and any other account managed by the same investment manager if certain conditions are satisfied. Among other requirements, ERISA § 408(b)(19)(H) stipulates that the investment manager must adopt, and effect cross trades in accordance with, written policies and procedures that are fair and equitable to all accounts participating in the cross-trading program. (Interim Final Regulation at 72 FR 6473, 2/12/07.)
• Annual Funding Notice for Defined Benefit Plans: To implement PPA § 501, which amended ERISA § 101(f) to require the administrator of a defined benefit pension plan to provide participants, beneficiaries, and other parties with an annual funding notice; and to also implement the requirements of PPA § 503(c), which amended ERISA § 104(b)(3) regarding summary annual reports for defined benefit plans. (Statutory Deadline 8/18/07.)
• Selection of Annuity Provider for Individual Account Plans: To establish a safe harbor under which a fiduciary of an individual account plan will be deemed to have satisfied the fiduciary responsibilities with respect to the selection of an annuity provider for the purpose of benefit distributions. The Department is proposing the safe harbor in light of revisions to Interpretive Bulletin 95-1 required by PPA § 625 clarifying that the fiduciary standards in Interpretive Bulletin 95-1 do not apply to the selection of an annuity provider for benefit distributions from an individual account plan. (Proposed Regulation at 72 FR 52021, 9/12/07.)
• Multiemployer Plan Information Made Available on Request: To implement PPA § 502(a)(1), which added a new subsection (k) to ERISA § 101, under which the plan administrator of a multi-employer plan shall, upon written request, furnish within 30 days a copy of certain actuarial, financial and funding-related documents to any plan participant or beneficiary, employee representative, or any employer that has an obligation to contribute to the plan. (Proposed Regulation at 72 FR 52527, 9/14/07.)
• Amendment to Interpretive Bulletin 95-1: To implement the directive in PPA § 625 which requires the Secretary of Labor to issue, not later than one year after the date of enactment, final regulations clarifying that the selection of an annuity contract as an optional form of distribution from an individual account plan is not subject to the safest available annuity requirement under Interpretive Bulletin 95-1 and is subject to all otherwise applicable fiduciary standards. (Interim Final Regulation at 72 FR 52004, 9/12/07.)
• Civil Penalties Under ERISA Section 502(c)(4): To implement the civil penalty provision under ERISA § 502(c)(4) as amended by PPA, under which the Secretary of Labor is granted authority to assess civil penalties not to exceed $1000 per day for each violation of section 101(j), (k), or (l), or section 514(e)(3) of ERISA. (Proposed Regulation at 72 FR 71842, 12/19/07.)
• Model Notice of Critical Status for Multiemployer Plans: To prescribe a model notice that multiemployer plans in critical status may use to satisfy their obligation to notify affected parties. (Proposed Regulation at 73 FR 15688, 3/25/08.)

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