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United States Department of Labor

DOL Regulations - Live Q&A Session with EBSA

The live chat with EBSA has concluded. Please view the archive of the chat below or join us for one of the other live chats scheduled for this week.

Archived Q&A Session with EBSA

Wednesday December 9, 2009

9:49 Moderator: That chat will begin at 10 a.m. You can start entering questions at any time.

10:00 Phyllis Borzi: Good Morning. I am Phyllis Borzi, Assistant Secretary for the Employee Benefits Security Administration. I am very excited to participate in this morning's Web chat and attempt to answer your questions - as best I can - concerning our regulatory priorities for the next several months.

EBSA's regulatory and enforcement responsibilities under the Employee Retirement Income Security Act - ERISA - extend to approximately 700,000 private pension plans, with almost $4.7 trillion in assets, and millions of private health and other welfare plans.

For this reason, we take very seriously our responsibility to protect the millions of America's workers that participate in ERISA-covered plans and to ensure - through our regulations - that plan participants and beneficiaries are afforded the protections they need and Congress intended. At the same time we remain sensitive to the costs and burdens imposed on plans - and that far too often end up being borne by the plan's participants.

Before opening this session, I should note that we will be making your questions - with my responses - available on the EBSA Web site for future review. With that announcement, I will turn to the first question --

10:01 Comment From W.H. Blanch: What is the anticipated time frame for release of new guidance on the provision of investment advice?

10:01 Phyllis Borzi: W.H., thank you for your question. As reflected in our regulatory agenda, we have targeted February 2010 for publication of the proposed regulation. With the proposal in the final stages of the clearance process, we are working hard to get it published as soon as possible.

10:01 Comment From David Pittman: Question from Secretary's Web chat: The Pension Protection Act of 2006 required the DOL to issue several new regulations within one year. Does the new Regulatory Agenda address the status of all of the PPA regulations that have not already been issued in some form? If not, which ones are not on the agenda, and when might we expect to see some action on those other topics?

10:02 Phyllis Borzi: The current regulatory agenda does not address all the provisions under the PPA with respect to which the Department may or must provide guidance. EBSA, therefore, will continue to address PPA items in order of their priority as determined by EBSA in light of available resources. You can find a list and links to our published PPA regulations and other guidance, as well as other information about PPA, on EBSA's web site at As EBSA completes PPA items they are added to this page.

10:05 Comment From W.H. Blanch: Does the EBSA plan to re-assess any of the previously issued Qualified Default Investment Alternative rules?

10:05 Phyllis Borzi: W. H. Blanch, although we don't have a specific project on the regulatory agenda we are looking at issues regarding disclosure of target date funds and life time income options.

10:05 Comment From W.H. Blanch: Does the EBSA expect to issue any further guidance on Schedule C (Service Provider Compensation) for Form 5500?

10:05 Phyllis Borzi: Thank you for your additional question, W.H. EBSA has published two sets of frequently asked questions (FAQs) on our Web site at and is participating in outreach efforts, making presentations at conferences. We are not working on additional Schedule C FAQ guidance at this time.

10:06 Comment From David Pittman: What are EBSA's plans for issuing regulations or other guidance regarding Michelle's Law?

10:06 Phyllis Borzi: Thank you, David, this is a very good question. We do plan to issue guidance in the not too distant future. As you may know, this subject involves three federal departments in the issuance of guidance, and we are coordinating our efforts in that process. Please check the EBSA Web site ( where we will post any guidance immediately upon its issuance.

10:09 Comment From Fred: Do you anticipate possibly revising the expectations for ERISA fiduciaries to take into account the fiduciaries' use/promotion of guaranteed income products such as annuities?

10:09 Phyllis Borzi: Fred, after we receive input in response to our RFI which will be issued soon, we are looking forward to exploring with our colleagues at the Treasury Department a wide variety of issues relating to the offering of life time income products by DC and other plans. We are hopeful that the regulated community will submit suggestions as to how to deal with both real and perceived impediments to the offering and selection of these products.

10:10 Comment From Jeffrey Hale: On the same note as QDIA, it may be useful to revisit the use of Stable Value as an option.

10:11 Phyllis Borzi: Jeffrey, thank you for your suggestion the Department at this time does not have any plans for reopening the QDIA Regulation to consider the inclusion of stable value products.

10:11 Comment From W.H. Blanch: What, if anything, does the EBSA plan to do with respect to Target Date funds?

10:11 Phyllis Borzi: Thank you, Blanch. Following our joint hearing on issues surrounding Target Date Funds (TDF), EBSA is reviewing the public record and working on possible guidance regarding both fiduciary duties in connection with the selection of TDFs and for workers who use these as investments. Right now we are working on checklists for fiduciaries and participants to help them better understand TDFs and other forms of informal guidance.

10:11 Comment From Michael Wyand: On Monday you rolled out your regulatory agenda. I noticed nothing was listed regarding Section 403(b) regulations? I know guidance is pending but do you expect the agency to eventually develop regulations?

10:12 Phyllis Borzi: Michael, I understand that people have questions about the new Form 5500 annual reporting requirements for 403(b) plans. We are working on transition guidance, which we hope to release soon, to help people comply, and are engaged in outreach with stakeholders to identify additional areas where guidance would be helpful.

10:13 Comment From NC: How about 5500 guidance for 403(b) plans?

10:13 Phyllis Borzi: NC, please see my response above to Michael Wyand at 10:12 a.m.

10:14 Comment From Peter Kelly: On Monday the GAO issued a report stressing the importance of coordination between the expanded fee and expense reporting of Form 5500 and the upcoming 408(b)(2) regulations. Could you give us your thinking regarding the points made in the GAO report?

10:14 Phyllis Borzi: Peter, we are mindful of the need to coordinate efforts between the Form 5500 and 408(b)(2) regulatory products. We are reviewing the points made in the GAO Report and will incorporate those insights into our solution.

10:15 Comment From Cathy Stamm: Will Michelle's law regulations address the interaction with state autism coverage mandates?

10:15 Phyllis Borzi: Cathy, do you mean mental health parity?

10:15 Comment From Lynn Cookk: What are EBSA's expectations for DB plan compliance with section 105, as amended by PPA for 2009? Is there a deadline for distributing a 2009 benefits statement under the three year automatic furnishing rule?

10:15 Phyllis Borzi: Thanks, Lynn. As the Regulatory Agenda indicates, EBSA is working on a proposed regulation which we hope to publish by September 2010. In the interim our expectation is that plans will comply with a good faith, reasonable interpretation of the statute. This view was articulated by EBSA in Field Assistance Bulletin 2006-3.

10:16 Comment From Daniel T: How will the SEC's efforts impact your decisions on target date funds? Is there a harmonization effort between EBSA and the SEC?

10:16 Phyllis Borzi: Thank you for your question, Daniel. EBSA and the SEC are working closely to address the many issues raised by members of the public and members of Congress concerning target date funds. We are working hard to provide guidance that will assist both plan sponsors and plan participants in making informed decisions about target date funds.

10:17 Comment From Rebecca Davis: Will EBSA's new proposed regulations on 401(k) fee disclosure include greater unbundling than the previous proposed regulation?

10:17 Comment From Jonah Spivak: What are EBSA's plans for issuing regulations regarding ERISA Section 408(b)(2)?

10:17 Phyllis Borzi: Rebecca and Jonah, thank you both for your question. We are looking at unbundling issue and have carefully considered the many comments received on it. We are on track to publish the regulation in accordance with the agenda.

10:20 Comment From Phillip Asby: Do you have any preliminary thoughts about the kind of lifetime income alternatives you'll be considering and how they may be dovetailed into the 401(a) environment?

10:20 Phyllis Borzi: That's a good question, Phillip. We have no pre-conceived conclusions about what path we will take regarding lifetime income options. As you know, we will be issuing shortly with our colleagues from the Department of Treasury a request for information on lifetime income options and look forward to the broad input we will get from the marketplace on these concepts.

10:20 Comment From Teddi Daniels: This concerns COBRA ARRA notices employers send out...has any template text been issued for COBRA coverage's that first begin in 2010? [Will the ARRA subsidy be extended?] Thank you!

10:20 Phyllis Borzi: Thanks, Teddi, we think this is a very good question. All the current model notices are posted on the EBSA Web site, . Issues concerning what Congress will do regarding any future extension of the subsidy are still being worked out in Congress. Please check the EBSA Web site as any developments on this issue will be posted as quickly as possible.

10:21 Comment From Daniel T: Are target date regulations first on the agenda?

10:22 Phyllis Borzi: Daniel T, thanks for your question. EBSA is currently reviewing a variety of approaches for responding to issues involving target date funds. While we do not currently have a specific project on our regulatory agenda, we have not ruled out possible regulatory action at this time. We're working on checklists for fiduciaries and participants so that they can better understand what their choices are.

10:22 Phyllis Borzi: Cathy clarified her earlier question for me and she is asking about mental health parity. Cathy, the three Departments (DOL, HHS, and Treasury) received many comments on this question and hope to issue regulations addressing as many issues as possible very soon.

10:23 Comment From A Fitzgerald: Are there any plans to release defined benefit statement guidance with respect to timing of the statements and a model statement?

10:23 Phyllis Borzi: A. Fitzgerald, thank you for your question. As indicated in our regulatory agenda we have targeted Dec. 2010 for a proposed rule. Our plan is to publish a model benefit statement along with the proposal. In the interim, we believe the guidance in Field Assistance Bulletin 2006-3 provides useful instruction on how to comply with Section 105 of ERISA. In relevant part that bulletin requires plan administrators to act in accordance with a good faith, reasonable interpretation of the statue.

10:24 Comment From Charles Holt: Does EBSA plan to issue guidance of any kind soon on the PPA requirement to post 5500 information on Company's intranet's? Much time has been spent by consultants and lawyers speculating on what, when and how to post this information.

10:24 Phyllis Borzi: Charles, we have started to receive questions about that PPA posting requirement. We currently are looking to determine areas where we can provide some helpful answers.

10:24 Comment From B. Garbo: In a speech you gave in September, you indicated 2010 projects included: (1) a rapid ERISA action team focused on at risk employers, (2) ESOPs, and (3) consultant adviser project, focused on "improper" undisclosed compensation to plan advisers. Didn't see reference to those in the reg plan. Are they still on your priority list for 2010? And if so, what can we expect to see from EBSA?

10:24 Phyllis Borzi: B. Garbo, thanks for your question, and thanks for attending my speech. The projects you describe in your question are enforcement priorities rather than regulatory priorities. The regulatory agenda describes the regulations we will be working on over the next several months. The projects I described in my speech are the investigative priorities of the agency. You can read more about each of our national enforcement projects on our website at

10:25 Comment From Doug Halonen: So when will we see your new proposed investment advice rules?invest

10:25 Phyllis Borzi: Doug, thanks for your question. As reflected in our regulatory agenda, we have targeted Feb. 2010, for publication of the proposal. With the proposal in the final stages of the clearance process, we are working hard to get it published as soon as possible.

10:26 Comment From Peter Kelly: Could you give us any prediction of the likely timing of the next action regarding the 408(b)(2) regulations project?

10:26 Phyllis Borzi: Thanks, Peter, for the question. As the regulatory agenda indicates, the Labor Department has targeted May 2010 for the issuance of a final regulation.

10:27 Comment From Daniel T: Are they're any 408(b)(2) and participant discloser regulations in the works? When do you expect do have some ready?

10:28 Phyllis Borzi: Thanks for the question, Daniel. EBSA is working hard to complete its work on regulations dealing with both fiduciary-level disclosures under Section 408(b)(2) and participant-level disclosures under Section 404. For more information about these initiative see the Fall 2009 Regulatory Agenda,

10:31 Comment From jlbozek: Did EBSA have any input in the shaping the Lifetime Income Disclosure Act? If not, does EBSA have a view on the bill?

10:31 Phyllis Borzi: Jibozek, thanks for your question. We provided technical comments to the sponsors of the bill, and we believe that this is a very important issue for participants and beneficiaries. However, we are still completing our review of this recently released bill.

10:31 Comment From Janis McClintock: The EBSA fact sheet regarding participant level fee disclosure indicates that you plan to publish final regulations in September 2010. Does this mean that you will not be re-proposing the prior Bush regulations for further comments before going to the final regs?

10:31 Phyllis Borzi: EBSA previously published a proposed regulation for notice and comment on participant level fee disclosure. We received numerous comments and we are reviewing these comments. It is our current intention to publish a final regulation which reflects our consideration of the comments and that ensures that plan participants receive disclosure of the information they need to protect their interests in participant directed plans.

10:32 Moderator: During an earlier question, we provided an incorrect link for the Pension Protection Act information. The correct link is

10:33 Comment From Kevin Wiggins: In the EBSA agenda, there is a notice that the DOL hopes to consider potential changes to the definition of ERISA fiduciary -- can you give us more information?

10:33 Phyllis Borzi: Kevin, We are looking at the 5-part test in the current regulation. We are concerned that it allows advisors from whom plans expect impartial advise to evade fiduciary responsibility. The nature of investment advise services has changed since the regulation was issued in 1975 and we question whether it continues to accomplish its purpose in an effective manner.

10:34 Comment From D.T.: If the extension to COBRA is enacted by the President, how does EBSA plan to handle the potential influx of continuing claimants?

10:34 Phyllis Borzi: Thanks for the question, DT. We currently have a process in place to handle any appeal of a denial of coverage, and we will continue to have that process in place if Congress enacts an extension to the current subsidy program. Should Congress enact additional legislation that would require future notices, we will post models for plans and employers to follow. Please consult the EBSA Web site,, for all future developments regarding the Department of Labor's responsibilities with the COBRA subsidy program.

10:34 Comment From tommalczyk: If a 501(c)(3) tax-exempt employer matches 403(b) elective contributions in its 401(k), will the contribution cause the employer's voluntary 403(b) plan to become subject to ERISA?

10:34 Phyllis Borzi: Tommalczyk, a condition of the 403(b) safe harbor is that there cannot be employer contributions to the employee's contract or account. Making matching 401(k) employer contributions based on an employee's participation in the 403(b) plan is, in effect, an employer contribution, although technically not to the 403(b) plan. So I would say the structure you describe falls outside of the 403(b) safe harbor.

10:37 Comment From Guest: EFAST2 is likely to generate a large number of calls to resolve issue with the PIN procedures. As I cannot resolve the PIN issues for our 8,000+ clients, I will have to send them to the EBSA for help. Is the center in Kansas going to have the capacity to support the increased volume?

10:37 Phyllis Borzi: Regarding the question from Guest, we have run tests to verify that the EFAST2 center in Kansas will be able to handle the increased call volume, and we believe that it will.

10:37 Comment From Peter Kelly: The model PPA funding notice that was issued last year appeared to be a "work in process." Are we likely to see an improved model notice in advance of the 2010 distribution deadline?

10:37 Phyllis Borzi: Thank you very much Peter, we have received a great deal of positive feed-back regarding the model funding notice that was issued last year in the Field Assistance Bulletin. As the regulatory agenda indicates we plan to publish a proposed regulation by August 2010. As part of that proposal, EBSA plans to include an updated and improved model funding notice.

10:38 Comment From Lynn Cook: One of our client's most burning questions is what constitutes "reasonable, good faith compliance." Is this an enforcement standard that could be articulated to a greater extent, either formally or informally?

10:38 Phyllis Borzi: Lynn, is there a particular regulatory standard to which you are referring?

10:40 Comment From Fred: Could you possibly address the weaknesses of the (now withdrawn) investment advice regulation that you hope to fix in the new version?

10:40 Phyllis Borzi: Fred, thanks for your question. EBSA withdrew the investment advice regulation in order to afford an opportunity to take a fresh look. A number of concerns were raised regarding the scope of the original regulation. Our proposal will be much closer to the statutory exemption enacted by Congress. In particular, we are concerned that the proposed regulation had permitted conflicted advice in a way that Congress had not intended when it carefully crafted legislation on the question.

10:40 Comment From Juan Kelly: Given that (1) modifications to the 2008 Form 5500 Instructions are still finding their way through the bureaucratic maze, (2) no final 2009 Form 5500 instructions are close to being released (e.g., draft Schedules A, B & C blasted by GAO recently) and (3) no final specifications for 2009 Form 5500 EFAST2 software exist, wouldn't the courageous, sensible thing to do be to allow plan administrators to file 2009 Forms 5500 using whatever medium they used for 2008?

10:40 Phyllis Borzi: Juan, thank you for your suggestion. The agencies are very excited about the new electronic filing system and related forms. We recognize there are challenges, but we are working hard to ensure that filers have the information and guidance they need to satisfy their reporting obligations. We will continue to review ways to facilitate the filing process and be responsive to the needs of the filing community. We are really looking forward to the EFAST2 system going live on January 1, 2010.

10:41 Comment From Lynn Cook: Would DOL consider removing the actuary's signature from Schedule SBs posted on the public website? Although a signature may be public record, there are legitimate privacy concerns and the signature does not seem necessary.

10:41 Phyllis Borzi: Lynn, we are working with the Internal Revenue Service and the Pension Benefit Guaranty Corporation on an option for 2009 filings that actuaries could use if they have concerns about posting their Schedule SB signatures on the EFAST2 public Web site. Information on that option will be available soon as part of the 2009 Form 5500 instructions.

10:42 Comment From W. H. Blanch: Can you expand a bit on the item on the agenda noted: "Regulatory Flexibility Act Review of Participant Contributions Regulation". Thank you.

10:42 Phyllis Borzi: W.H., Section 610 of the Regulatory Flexibility Act requires federal agencies to review regulations that may have a significant economic impact on a substantial number of small entities every ten years after adoption. The purpose of the periodic review is to access the impact of the existing rule on small entities and determine whether the rule should continue without change, be amended, or rescinded, consistent with the objective of applicable statutes.

10:43 Comment From Peter Kelly: Given the passage of time since the 408(b)(2) project was put in abeyance and the renewal of that project with a May 2010 target date, will you reopen the comment period?

10:43 Phyllis Borzi: Thanks so much for your question, Peter. We are still assessing our options regarding how we will proceed with this regulation. We have not made a final decision at this point, but expect to do so soon.

10:44 Comment From Rebecca Davis: Do the plans to issue a final rule on the timing and order of issuance of QDROs include adding additional factual examples specifically addressing posthumous QDRO scenarios?

10:44 Phyllis Borzi: Yes, Rebecca, thank you for your question. We plan to issue a final regulation in April 2010. At this juncture, we believe, based on the substantial amount of public commentary on posthumous orders, it is very likely that the final regulation will include either examples or other guidance in this area.

10:44 Comment From Steve: A tax exempt 501(c)(3) entity maintains an ERISA 401(a) plan that provides the employer will make a matching contribution in proportion to elective deferral contributions made by participants to the employer's ERISA exempt 403(b) plan. Does this arrangement eliminate the 403(b)'s exemption from ERISA?

10:44 Phyllis Borzi: Steve, tommalczyk asked a similar question, Please see the answer above at 10:34.

10:46 Comment From Lynn Cook: I was referring specifically to PPA section 105 current guidance.

10:46 Phyllis Borzi: Thanks, Lynn, for your follow-up question. The answer is this is a non-enforcement policy the Department has adopted. We really can't answer in this context. It's a facts and circumstances analysis.

10:46 Moderator: Here is a photo of Assistant Secretary Borzi answering your questions.

10:47 :

10:47 Comment From Kevin Wiggins: Phyllis, one or two members of last year's ERISA Advisory Council expressed concerns about irregularities in the enforcement of the plan asset regulations as they relate to the timing of 401(k) contributions made to the trust. Those members suggested that investigators are requiring contributions to made in a timeframe that is practically, if not outright, impossible. Does EBSA have any plans to address this issue?

10:47 Phyllis Borzi: Kevin, the question of how long it should take for a plan to remit employee contributions to the trust is dependent on facts and circumstances. However, we are planning to publish a final rule that provides a bright line safe harbor for employers who remit contributions promptly. This rule should be published by Jan. 2010.

10:48 Comment From Peter Kelly: Thanks for this creative use of technology. The real time feedback helps us. Hopefully you also benefit from the experience. Please continue to use this format

10:51 Comment From Jessica Marquez: Can you say what DOL is looking to do with Treasury with regard to looking at retirement income products? Are you considering regulating this marketplace at all?

10:51 Phyllis Borzi: Jessica, thanks for your question. The Department and Treasury, through a joint RFI, will be exploring a wide variety of issues in an effort to identify both perceived and real impediments to the offering and selection of lifetime income products. In this regard, we would welcome any suggestions or comments you may have concerning these issues. We hope to have the RFI published in the very near future, and when it is available, we welcome your comments via

10:51 Comment From D.S.: Are you in a position to give us any insight into the differences between previous investment advice proposal and the one you will be issuing in February 2010?

10:51 Phyllis Borzi: Thanks for your question, DS. While I am not prepared to go into detail about how the two rules might be different, but as I will reiterate what I have been saying publicly - I believe the recently withdrawn rule went far beyond what Congress intended in providing for an expansion of the availability of investment advice to 401(k) plan participants. Accordingly, the regulated community should expect a proposal which more closely follows the intent of Congress in establishing a statutory exemption from the conflict of interest provisions of ERISA.

10:53 Comment From Kevin Wiggins: Phyllis, you are doing an amazing job here. How many other people, if any, do you have helping you on this?

10:53 Phyllis Borzi: Thanks for your kind words, Kevin. As you can tell, I have about 8 of my terrific staff here helping me - I am so lucky to be part of the EBSA team because the staff is unbelievably smart, dedicated and focused on our core mission: helping assure that participants, beneficiaries and retirees get the employee benefits that they were promised. I could not do this without them!

10:53 Comment From NC: Thanks for your answer on upcoming 403(b) guidance. Are you able to share any more details about the timing and content of the guidance? Some have suggested that there should be some relief from having to retrieve account information from many years ago, when the information is not available. Can you comment further?

10:53 Phyllis Borzi: Thanks for the follow-up, NC. I understand people are interested in getting additional guidance as soon as possible, and we're working hard to respond to that interest. On your question about old account information, we did provide some transition relief that should help in Field Assistance Bulletin No. 2009-02, which is available online at We are also working with the accounting industry on transition issues related to the ERISA audit requirement.

10:53 Comment From Michael Wyand: Ditto! what Peter Kelly said about creative use of technology.

10:54 Comment From Lynn Cook: Thank you so much for doing this. It is so nice of you to share your time and expertise with us.

10:54 Comment From W.H. Blanch: Yes, thank you to you and your staff for your time.

10:56 Comment From W. H. Blanch: Can you expand on what the item "Adquate Consideration" on the agenda means? Does that relate to the Service Provider Exemption from the PPA or some other item?

10:56 Phyllis Borzi: Thanks, WH. "Adequate consideration" is a term used in Section 408(e) of ERISA regarding a plan's purchase or sale of qualifying employer securities or real property. The Department proposed a regulation on this term in the 1980s but has not finalized it. The new agenda shows that it is being removed simply to indicate that we foresee no action in the foreseeable future due to other pressing priorities. The status of the proposed regulation is not affected, and the mere fact that it is not on the agenda does not mean that the proposed regulation is being withdrawn.

10:56 Comment From jlbozek: The investment disclosure proposals require extensive descriptions of returns, fees and other information, which in the aggregate, is hard to wade through, even for those in the business. Has EBSA spoken with any participant focus groups to understand what investment information they would find meaningful and easy to digest? Has EBSA looked at sample industry fact sheets, for example?

10:56 Phyllis Borzi: Jbozek, thank you very much for the question. We have received a substantial amount of positive feedback on the model disclosure to which you refer. Nonetheless, we have presented this model disclosure to a focus group for the specific purpose of determining how well the information on investment returns and performance is understood by an average plan participant. In addition, many individuals commenting on the proposed regulation included sample industry fact sheets along with their commentary, and we have closely studied those fact sheets in the course of working on a final regulation. One last thing to note, we also are working with other governmental agencies who share similar concerns about producing disclosures that workers can understand.

10:57 Comment From Jim Singer: Does the DOL have any information on when HHS will issue their MHPAEA regulations or any other advice for plans that have to comply with the MHPAEA by 1/1/10?

10:57 Phyllis Borzi: Thank you for your question, Jim. The Department of Labor, the Department of Health and Human Services, and the Department of the Treasury are working to issue joint MHPAEA regulations as soon as possible.

10:57 Comment From Kevin Wiggins: Phyllis, Thank you for taking the time to chat with us. On the 408(b)(2) regulations targeted for May, 2010, how much of a transition period might plans and service providers have to come into compliance after those regs are published?

10:57 Phyllis Borzi: Kevin, thank you for your question. Please be assured that we are sensitive to the fact that any new rule in this area will have significant implications for both plans and service providers. Accordingly we contemplate providing a period that will be adequate for effective and efficient implementation of the new rules.

10:57 Comment From D.S.: I agree with my peers; I am finding this session very helpful. Thank you.

10:57 Comment From tommalczyk: If a 501(c)(3) tax-exempt employer that selects an independent third-party-administrator (TPA) to make discretionary determinations under its 403(b) plan such as certifying participant loans, hardship withdrawals or QDROs comply with applicable requirements, will the selection of such TPA cause the employer's voluntary 403(b) plan to become subject to ERISA?

10:57 Phyllis Borzi: Tommalczyk, we've received that question from several people, and it is one of the questions we are looking to answer as part of the 403(b) guidance we are currently developing. Please see my response to Michael at 10:12 a.m.

10:59 Comment From David Pittman: Please describe the scope of the HIPAA regulations that are scheduled to be issued in September.

10:59 Phyllis Borzi: David, the final regulation will provide additional guidance regarding health coverage access and portability provisions in ERISA, as amended by HIPAA, and the Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA). Among other things, CHIPRA's new, special enrollment opportunities for children and their families will be addressed.

11:01 Comment From Sue: Thank you! This has been very helpful.

11:02 Comment From T.C.: Does the DOL have any plans to modify the plan asset definition regulations to bring additional investment products under the enforcement provisions of the DOL rather than the SEC?

11:02 Phyllis Borzi: Thank you for the question T.C. We are concerned that the determination of whether someone is a fiduciary not be too restrictive and we are looking at ways to better ensure that plans receive the full benefits of ERISA's fiduciary protections. We have no near-term plans to reopen the plan asset regulation however.

11:03 Comment From Mark Zielinski: Thank you very much for an informative session.

11:03 Comment From Christopher from Fidelity: re participant disclosure regulations the top priority? And will we see an update to the DOL's electronic media regulations in 2010?

11:03 Phyllis Borzi: Christopher, yes, we are working very hard to complete our work on both the fiduciary-level and participant-level fee disclosure regulation. With regard to electronic disclosure, we are continuing to review a variety of issues in this area.

11:03 Comment From Teddi Daniels: Thank you for this opportunity! I'm hopeful there will be some final decisions and template notices issued soon as relate to COBRA and ARRA. This is a huge issue with our former employees... Thank you again...

11:04 Comment From Jessica Marquez: Can you clarify what the DOL and Treasury are looking at with regard to retirement income products? Do you anticipate regulating these products? Or providing a safe harbor for in-plan annuities?

11:04 Phyllis Borzi: Thanks for this question, Jessica. The departments (Department of Labor and Department of Treasury) are publishing a joint request for information as a first step in exploring impediments, whether statutory, interpretive or regulatory, to the offering of lifetime income products by plan sponsors and to the selection of such products by workers. It is premature to announce whether we will be publishing a safe harbor for in-plan annuities. Our objective is to start a dialogue among the stakeholders about this important issue and ultimately to ensure that all workers have the opportunities to consider securing their retirement through an annuity or other lifetime income product.

11:04 Comment From Juan Kelly: What changes are there for Summary Annual Reports on welfare benefit plans to go along with electronic 2009 and subsequent Forms 5500?

11:04 Phyllis Borzi: Juan, there are no SAR changes in development for funded welfare plans required to file the Form 5500. If you have particular questions or ideas, I'd encourage you to share them with us by contacting EBSA's Office of Regulations and Interpretations. Contact information for the agency is available at

11:06 Phyllis Borzi: Thank you all so much for participating today. Unfortunately, we are out of time. My staff and I really enjoyed this process and we're glad you have, as well. We appreciate your questions and your participation in this chat. We hope that you'll all participate in the public comment process because that is exactly what this Web chat was designed to spur. For more information, please visit the EBSA Web site at

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