Fiduciary status

[Guest Spock]

If an actuary has discretion in setting some of the assumptions used to value a qualified DB plan, does that make the actuary a fiduciary? In general, isn't an actuary considered a fiduciary to a DB plan?

I think the actuary needs to provide a written fee disclosure document to the plan sponsor to comply with the new fee disclosure rules.

Also, I don't see anyting in the new fee disclosure rules that address participant disclosure. Thus, the focus of the new rules is full disclosure of fees from covered service providers to the responsible plan fiduciary.

Thank you in advance to those who choose to reply.

LL&P

[Belgarath]

While I'll have to let the actuaries speak for themselves, I think that actuaries are generally not fiduciaries, at least not solely by performance of actuarial functions, including discretion in setting certain assumptions. But under the new regs you refer to, they are likely to be "covered service providers" and as such, in order to avoid Prohibited Transaction situations, then they would have to comply with the new rules.

There are actually different sets of "new" rules. One is the ERISA 408(b)(2) regulations, which as you describe, are disclosures by covered service providers to the plan fiduciary. These are not participant disclosure regulations.

Then, you DO have new participant disclosure regulations, under (don't quote me, I didn't look it up) ERISA 404. These are indeed participant disclosure rules, effective for plan years beginning on or after 11/1/11.

And then of course, you have the new proposed regulations on fiduciaries, under ERISA (3)(21).

All in all, letting us all in for a lot of fun.