,,ii #aafth ,,congress #ast ,session ,s4 #ajaa ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,april #c1 #bjai,mr4 ,cotton 7for himself1 ,mr4 ,young1 and ,mr4 ,jones7 introduced the following bill2 which was read twice and referred to the ,committee on ,finance ,a ,,bill ,to amend the ,internal ,revenue ,code of #aihf and the ,employee ,retirement ,income ,security ,act of #aigd to modify the requirements for multiple employer plans1 and for other purposes4 #a4 ,multiple employer plans 7a7 ,qualification requirements 7#a7 ,in general ,section #dac of the ,internal ,revenue ,code of #aihf is amended by adding at the end the following new subsection3 7e7 ,application of qualification requirements for certain multiple employer plans with pooled plan providers 7#a7 ,in general ,except as provided in paragraph 7#b71 if a defined contribution plan to which subsection 7c7 applies-- 7,a7 is sponsored by employers all of which have both a common interest other than having adopted the plan and control of the plan1 or 7,b7 in the case of a plan not described in subparagraph 7,a71 has a pooled plan provider1 then the plan shall not be treated as failing to meet the requirements under this title applicable to a plan described in section #dja7;a7 or to a plan that consists of individual retirement accounts described in section #djh 7including by reason of subsection 7c7 thereof71 whichever is applicable1 merely because one or more employers of employees covered by the plan fail to take such actions as are required of such employers for the plan to meet such requirements4 7#b7 ,limitations 7,a7 ,in general ,paragraph 7#a7 shall not apply to any plan unless the terms of the plan provide that in cases of employers failing to take the actions described in paragraph 7#a7-- 7i7 the assets of the plan attributable to employees of the employer will be transferred to a plan maintained only by the employer 7or its successor71 to an eligible retirement plan as defined in section #djb7;c77#h77;,b7 for each individual whose account is transferred1 or to any other arrangement that the ,secretary determines is appropriate1 unless the ,secretary determines it is in the best interests of such employees to retain the assets in the plan1 and 7ii7 the employer described in clause 7i7 7and not the plan with respect to which the failure occurred or any other participating employer in such plan7 shall1 except to the extent provided by the ,secretary1 be liable for any liabilities with respect to such plan attributable to employees of the employer4 7,b7 ,failures by pooled plan providers ,if the pooled plan provider of a plan described in paragraph 7#a77;,b7 does not perform substantially all of the administrative duties which are required of the provider under paragraph 7#c77;,a77i7 for any plan year1 the ,secretary1 in the ,secretary's own discretion1 may provide that the determination as to whether the plan meets the requirements under this title applicable to a plan described in section #dja7;a7 or to a plan that consists of individual retirement accounts described in section #djh 7including by reason of subsection 7c7 thereof71 whichever is applicable1 shall be made in the same manner as would be made without regard to paragraph 7#a74 7#c7 ,pooled plan provider ,for purposes of this subsection-- 7,a7 ,in general ,the term pooled plan provider means1 with respect to any plan1 a person who-- 7i7 is designated by the terms of the plan as a named fiduciary 7within the meaning of section #djb7;a77#b7 of the ,employee ,retirement ,income ,security ,act of #aigd71 as the plan administrator1 and as the person responsible to perform all administrative duties 7including conducting proper testing with respect to the plan and employees of each participating employer7 which are reasonably necessary to ensure that-- 7,i7 the plan meets any requirement applicable under the ,employee ,retirement ,income ,security ,act of #aigd or this title to a plan described in section #dja7;a7 or to a plan that consists of individual retirement accounts described in section #djh 7including by reason of subsection 7c7 thereof71 whichever is applicable1 and 7,,ii7 each participating employer takes such actions as the ,secretary or such person determines are necessary for the plan to meet the requirements described in subclause 7,i71 including providing to such person any disclosures or other information which the ,secretary may require or which such person otherwise determines is necessary to administer the plan or to allow the plan to meet such requirements1 7ii7 registers as a pooled plan provider with the ,secretary1 and provides such other information to the ,secretary as the ,secretary may require1 before beginning operations as a pooled plan provider1 7iii7 acknowledges in writing that such person is a named fiduciary 7within the meaning of section #djb7;a77#b7 of the ,employee ,retirement ,income ,security ,act of #aigd71 and the plan administrator1 with respect to the plan1 and 7iv7 is responsible for ensuring that all persons who handle assets of1 or who are fiduciaries of1 the plan are bonded in accordance with section #dab of the ,employee ,retirement ,income ,security ,act of #aigd4 7,b7 ,audits1 examinations1 and investigations ,the ,secretary may perform audits1 examinations1 and investigations of pooled plan providers as may be necessary to enforce and carry out the purposes of this subsection4 7#d7 ,guidance 7,a7 ,in general ,the ,secretary shall issue such guidance as the ,secretary determines appropriate to carry out this subsection1 including guidance-- 7i7 to identify the administrative duties and other actions required to be performed by a pooled plan provider under this subsection1 7ii7 which describes the procedures to be taken to terminate a plan which fails to meet the requirements to be a plan described in paragraph 7#a71 including the proper treatment of1 and actions needed to be taken by1 any participating employer of the plan and the assets and liabilities of the plan with respect to employees of that employer1 and 7iii7 identifying appropriate cases to which the rules of paragraph 7#b77;,a7 will apply to employers failing to take the actions described in paragraph 7#a74 ,the ,secretary shall take into account under clause 7iii7 whether the failure of an employer or pooled plan provider to provide any disclosures or other information1 or to take any other action1 necessary to administer a plan or to allow a plan to meet requirements applicable to the plan under section #dja7;a7 or #djh1 whichever is applicable1 has continued over a period of time that clearly demonstrates a lack of commitment to compliance4 7,b7 ,prospective application ,any guidance issued by the ,secretary under this paragraph shall not apply to any action or failure occurring before the issuance of such guidance4 7#e7 ,model plan ,not later than ,june #cj1 #bjbj1 the ,secretary shall1 in consultation with the ,secretary of ,labor when appropriate1 publish-- 7,a7 model plan language which may be adopted by a plan to which subsection 7c7 applies and which is not described in paragraph 7#a77;,b71 in order for the plan to qualify for the application of this subsection1 and 7,b7 model plan language which meets the requirements of this subsection and of paragraphs 7#dc7 and 7#dd7 of section #c of the ,employee ,retirement ,income ,security ,act of #aigd and which may be adopted in order for a plan to be treated as a plan described in paragraph 7#a77;,b74 4 7#b7 ,conforming amendment ,paragraph 7#b7 of section #dac7;c7 of such ,code is amended by striking section #dja7;a7 and inserting sections #dja7;a7 and #djh7;c74 7#c7 ,technical amendment ,subsection 7c7 of section #djh of such ,code is amended by inserting after paragraph 7#b7 the following new paragraph3 7#c7 ,there is a separate accounting for any interest of an employee or member 7or spouse of an employee or member7 in a ,roth ,,ira4 4 7b7 ,no common interest required for pooled employer plans ,section #c7b7 of the ,employee ,retirement ,income ,security ,act of #aigd 7#bi ,u4,s4,c4 #ajjb7b77 is amended by adding at the end the following3 7,c7 ,a pooled employer plan shall be treated as-- 7i7 a single employee pension benefit plan or single pension plan2 and 7ii7 a plan to which section #baj7;a7 applies4 4 7c7 ,pooled employer plan and provider defined 7#a7 ,in general ,section #c of the ,employee ,retirement ,income ,security ,act of #aigd 7#bi ,u4,s4,c4 #ajjb7 is amended by adding at the end the following3 7#dc7 ,pooled employer plan 7,a7 ,in general ,the term pooled employer plan means a plan-- 7i7 which is an individual account plan established or maintained for the purpose of providing benefits to the employees of two or more employers2 7ii7 which is a plan described in section #dja7;a7 of the ,internal ,revenue ,code of #aihf which includes a trust exempt from tax under section #eja7;a7 of such ,code or a plan that consists of individual retirement accounts described in section #djh of such ,code 7including by reason of subsection 7c7 thereof72 and 7iii7 the terms of which meet the requirements of subparagraph 7,b74 ,such term shall not include a plan with respect to which all of the participating employers have both a common interest other than having adopted the plan and control of the plan4 7,b7 ,requirements for plan terms ,the requirements of this subparagraph are met with respect to any plan if the terms of the plan-- 7i7 designate a pooled plan provider and provide that the pooled plan provider is a named fiduciary of the plan2 7ii7 designate one or more trustees meeting the requirements of section #djh7;a77#b7 of the ,internal ,revenue ,code of #aihf 7other than a participating employer7 to be responsible for collecting contributions to1 and holding the assets of1 the plan and require such trustees to implement written contribution collection procedures that are reasonable1 diligent1 and systematic2 7iii7 except as provided in section #djd7;e71 provide that each participating employer retains fiduciary responsibility for-- 7,i7 the selection and monitoring in accordance with section #djd7;a7 of the person designated as the pooled plan provider and any other person who1 in addition to the pooled plan provider1 is designated as a named fiduciary of the plan2 and 7,,ii7 to the extent not otherwise delegated to another fiduciary by the pooled plan provider and subject to the provisions of section #djd7;c71 the investment and management of that portion of the plan's assets attributable to the employees of that participating employer2 7iv7 provide that a participating employer1 or a participant or beneficiary1 is not subject to unreasonable restrictions1 fees1 or penalties with regard to ceasing participation1 receipt of distributions1 or otherwise transferring assets of the plan in accordance with section #bjh or paragraph 7#dd77;,c77i77,,ii72 7v7 require-- 7,i7 the pooled plan provider to provide to participating employers any disclosures or other information which the ,secretary may require1 including any disclosures or other information to facilitate the selection or any monitoring of the pooled plan provider by participating employers2 and 7,,ii7 each participating employer to take such actions as the ,secretary or the pooled plan provider determines are necessary to administer the plan or for the plan to meet any requirement applicable under this ,act or the ,internal ,revenue ,code of #aihf to a plan described in section #dja7;a7 of such ,code or to a plan that consists of individual retirement accounts described in section #djh of such ,code 7including by reason of subsection 7c7 thereof71 whichever is applicable1 including providing any disclosures or other information which the ,secretary may require or which the pooled plan provider otherwise determines is necessary to administer the plan or to allow the plan to meet such requirements2 and 7vi7 provide that any disclosure or other information required to be provided under clause 7v7 may be provided in electronic form and will be designed to ensure only reasonable costs are imposed on pooled plan providers and participating employers4 7,c7 ,exceptions ,the term pooled employer plan does not include-- 7i7 a multiemployer plan2 7ii7 a plan established before ,january #a1 #bjaf1 unless the plan administrator elects that the plan will be treated as a pooled employer plan and the plan meets the requirements of this title applicable to a pooled employer plan established on or after such date2 and 7iii7 a plan with respect to which all of the participating employers have both a common interest other than having adopted the plan and control of the plan4 7#dd7 ,pooled plan provider 7,a7 ,in general ,the term pooled plan provider means a person who-- 7i7 is designated by the terms of a pooled employer plan as a named fiduciary1 as the plan administrator1 and as the person responsible for the performance of all administrative duties 7including conducting proper testing with respect to the plan and employees of each participating employer7 which are reasonably necessary to ensure that-- 7,i7 the plan meets any requirement applicable under this ,act or the ,internal ,revenue ,code of #aihf to a plan described in section #dja7;a7 of such ,code or to a plan that consists of individual retirement accounts described in section #djh of such ,code 7including by reason of subsection 7c7 thereof71 whichever is applicable2 and 7,,ii7 each participating employer takes such actions as the ,secretary or pooled plan provider determines are necessary for the plan to meet the requirements described in subclause 7,i71 including providing the disclosures and information described in paragraph 7#dc77;,b77v77,,ii72 7ii7 registers as a pooled plan provider with the ,secretary1 and provides to the ,secretary such other information as the ,secretary may require1 before beginning operations as a pooled plan provider2 7iii7 acknowledges in writing that such person is a named fiduciary1 and the plan administrator1 with respect to the pooled employer plan2 and 7iv7 is responsible for ensuring that all persons who handle assets of1 or who are fiduciaries of1 the pooled employer plan are bonded in accordance with section #dab4 7,b7 ,audits1 examinations1 and investigations ,the ,secretary may perform audits1 examinations1 and investigations of pooled plan providers as may be necessary to enforce and carry out the purposes of this paragraph and paragraph 7#dc74 7,c7 ,guidance 7i7 ,in general ,the ,secretary shall issue such guidance as the ,secretary determines appropriate to carry out this paragraph and paragraph 7#dc71 including guidance-- 7,i7 to identify the administrative duties and other actions required to be performed by a pooled plan provider under either such paragraph2 and 7,,ii7 which requires in appropriate cases that if a participating employer fails to take the actions required under subparagraph 7,a77i77,,ii7-- 7aa7 the assets of the plan attributable to employees of the participating employer are transferred to a plan maintained only by the participating employer 7or its successor71 to an eligible retirement plan as defined in section #djb7;c77#h77;,b7 of the ,internal ,revenue ,code of #aihf for each individual whose account is transferred1 or to any other arrangement that the ,secretary determines is appropriate in such guidance2 and 7bb7 the participating employer described in item 7aa7 7and not the plan with respect to which the failure occurred or any other participating employer in such plan7 shall1 except to the extent provided in such guidance1 be liable for any liabilities with respect to such plan attributable to employees of the participating employer4 ,the ,secretary shall take into account under subclause 7,,ii7 whether the failure of an employer or pooled plan provider to provide any disclosures or other information1 or to take any other action1 necessary to administer a plan or to allow a plan to meet requirements described in subparagraph 7,a77i77,,ii7 has continued over a period of time that clearly demonstrates a lack of commitment to compliance4 ,the ,secretary may waive the requirements of subclause 7,,ii77aa7 in appropriate circumstances if the ,secretary determines it is in the best interests of the employees of the participating employer described in such clause to retain the assets in the plan with respect to which the employer's failure occurred4 7ii7 ,prospective application ,any guidance issued by the ,secretary under this subparagraph shall not apply to any action or failure occurring before the issuance of such guidance4 7,d7 ,aggregation rules ,for purposes of this paragraph-- 7i7 ,in general ,in determining whether a person meets the requirements of this paragraph to be a pooled plan provider with respect to any plan1 all persons who are members of the same controlled group and who perform services for the plan shall be treated as one person4 7ii7 ,members of common group ,persons shall be treated as members of the same controlled group if such persons are treated as a single employer under subsection 7c7 or 7d7 of section #baj4 4 7#b7 ,bonding requirements for pooled employer plans ,the last sentence of section #dab7;a7 of the ,employee ,retirement ,income ,security ,act of #aigd 7#bi ,u4,s4,c4 #aaab7;a77 is amended by inserting or in the case of a pooled employer plan 7as defined in section #c7dc77 after section #djg7;d77#a774 7#c7 ,conforming and technical amendments ,section #c of the ,employee ,retirement ,income ,security ,act of #aigd 7#bi ,u4,s4,c4 #ajjb7 is amended-- 7,a7 in paragraph 7#af77;,b7-- 7i7 by striking or at the end of clause 7ii72 and 7ii7 by striking the period at the end and inserting 1 or 7iv7 in the case of a pooled employer plan1 the pooled plan provider42 and 7,b7 by striking the second paragraph 7#da74 7d7 ,effective date 7#a7 ,in general ,the amendments made by this section shall apply to years beginning after ,december #ca1 #bjbj4 7#b7 ,rule of construction ,nothing in the amendments made by subsection 7a7 shall be construed as limiting the authority of the ,secretary of the ,treasury or the ,secretary's delegate 7determined without regard to such amendment7 to provide for the proper treatment of a failure to meet any requirement applicable under the ,internal ,revenue ,code of #aihf with respect to one employer 7and its employees7 in a multiple employer plan4 #b4 ,limitation on employer liability ,section #djd of the ,employee ,retirement ,income ,security ,act of #aigd 7#bi ,u4,s4,c4 #aajd7 is amended by adding at the end the following new subsection3 7e7 7#a7 ,except as provided in paragraph 7#b71 an eligible employer 7as defined in section #djh7p77#b77;,c77i7 of the ,internal ,revenue ,code of #aihf7 participating in a registered pooled employer plan shall not be treated as a fiduciary with respect to such plan1 including with respect to the selection or monitoring of any plan service provider or any investment under the plan1 if-- 7,a7 the employer selected the registered pooled employer plan from the ,department of ,labor ,internet website established under paragraph 7#f72 7,b7 the pooled plan provider of such plan receives no more than reasonable compensation for its services2 and 7,c7 the employer is not the pooled plan provider or a plan service provider for the plan4 7#b7 ,notwithstanding paragraph 7#a71 eligible employers participating in such a registered pooled employer plan shall be responsible for-- 7,a7 ensuring1 at the time of entering into the participation agreement and periodically thereafter 7not less frequently than annually and upon any agreed-to change in the compensation of the pooled plan provider71 that the compensation received by the pooled plan provider pursuant to the participation agreement is reasonable2 7,b7 meeting the enrollment requirements applicable to such employer under the plan2 7,c7 transmitting contributions to the plan in a timely manner in accordance with the terms of the plan2 7,d7 providing such information and assistance as is within the sole control of the eligible employer and is needed by the plan to operate in accordance with the plan document2 and 7,e7 providing such other information or assistance as may be required in regulations prescribed by the ,secretary4 7#c7 ,for purposes of this subsection1 the term registered pooled employer plan means a pooled employer plan if the pooled plan provider-- 7,a7 agrees in the plan document to-- 7i7 comply with all requirements applicable to a pooled plan provider under this title and the ,internal ,revenue ,code of #aihf2 7ii7 assume all fiduciary responsibility for the plan 7except as retained by the eligible employer under paragraph 7#b77 with respect to such eligible employer1 including for the prudent selection and monitoring of investments and negotiation of reasonable fees2 7iii7 serve as the plan sponsor for purposes of this title2 and 7iv7 notify the eligible employer reasonably in advance of the obligations of both the employer and the pooled plan provider under the pooled employer plan2 7,b7 submits all key plan information requested by the ,secretary under paragraph 7#e72 7,c7 would not be precluded for any other reason from acting as a fiduciary of the plan under this title2 and 7,d7 either-- 7i7 has fiduciary liability insurance with a per-claim limit which is at least-- 7,i7 the greater of #e percent of plan assets or #a1jjj1jjj2 or 7,,ii7 such other amount as is determined by the ,secretary by regulation2 or 7ii7 is-- 7,i7 a bank1 as defined in section #bjb7;a77#b7 of the ,investment ,advisers ,act of #aidj1 that has the power to manage1 acquire1 or dispose of assets of a plan1 and that has1 as of the last day of its most recent fiscal year1 equity capital in excess of #a1jjj1jjj2 7,,ii7 a savings and loan association1 the accounts of which are insured by the ,federal ,savings and ,loan ,insurance ,corporation1 that has made application for and been granted trust powers to manage1 acquire1 or dispose of assets of any plan by a ,state or ,federal authority having supervision over savings and loan associations1 and that has1 as of the last day of its most recent fiscal year1 equity capital or net worth in excess of #a1jjj1jjj2 7,,iii7 an insurance company subject to supervision and examination by a ,state authority having supervision over insurance companies that is qualified under the laws of more than #a ,state to manage1 acquire1 or dispose of assets of a plan1 and that has1 as of the last day of its most recent fiscal year1 net worth in excess of #a1jjj1jjj2 or 7,,iv7 an investment adviser registered under the ,investment ,advisers ,act of #aidj that1 as of the last day of its most recent fiscal year1 has total client assets under its management and control in excess of #he1jjj1jjj1 and shareholders' or partners' equity in excess of #a1jjj1jjj4 7#d7 7,a7 ,in the case of a registered pooled employer plan that substantially fails to comply with the requirements of paragraph 7#c71 the ,secretary shall provide notification to the pooled plan provider with an explanation of the noncompliance and actions needed to return to compliance4 7,b7 ,if the plan fails to return to compliance with paragraph 7#c7 within #ij days of receiving the notification under subparagraph 7,a71 the ,secretary shall remove the plan from the website established under paragraph 7#f7 and provide notification to all participating employers that the plan no longer qualifies them to be relieved of fiduciary duty under paragraph 7#a71 and if they desire such relief they must select another registered pooled employer plan listed on such website4 7,c7 ,the ,secretary shall promulgate regulations as necessary to ensure that timely notification is provided to eligible employers pursuant to subparagraph 7,b7 and in the case of a registered pooled employer plan that terminates registration4 7#e7 7,a7 ,the ,secretary1 in consultation with the ,secretary of the ,treasury1 shall determine the information that a pooled employer plan must submit in order to be included on the website established under paragraph 7#f71 including sufficient information for employers and participants to evaluate and compare plans4 7,b7 ,the information required under subparagraph 7,a7 may be provided in any reasonable manner or pursuant to regulations issued by the ,secretary4 ,the ,secretary shall take reasonable efforts to ensure the collection of such information is not unduly burdensome for pooled plan providers while balancing the needs of employers and participants1 and to ensure that the information requested does not discriminate in favor of certain providers with respect to the type of investments or investment strategies offered4 7#f7 7,a7 ,not later than the date that is #a year after the date of the enactment of this ,act1 the ,secretary1 in consultation with the ,secretary of the ,treasury1 shall make publicly available an ,internet website to provide key plan information for plans that qualify as pooled employer plans 7including contact information7 to employers searching for a plan in which to participate4 7,b7 ,the website established under this paragraph shall include1 in a timely manner1 all plans that qualify as pooled employer plans and that have submitted in full1 on an annual basis and at the time of any material change1 the information described in paragraph 7#e74 ,such website shall enable users to search pooled employer plans based on the information submitted under paragraph 7#e71 including whether the pooled plan provider of the plan has accepted the additional fiduciary responsibilities described in paragraph 7#c77;,a74 ,the ,secretary shall take reasonable efforts to ensure that the information on the website is written in a manner calculated to be understood by the average plan participant1 and is sufficiently accurate and comprehensive to reasonably apprise participants and beneficiaries of their rights and obligations under each plan4 7,c7 ,the submission of information for inclusion on such website by a plan shall be voluntary1 except in the case of a plan seeking treatment as a registered pooled employer plan4 4