On May 5, 2008, the DOL published its semi-annual regulatory agenda and highlighted two items to be undertaken by the Employment Benefits Security Administration (EBSA) in the remainder of 2008. 

First, EBSA intends to publish a final rule in November 2008 concerning when employee benefit plan contributions paid to or withheld by an employer constitute “plan assets” for ERISA and tax code purposes. Under the current Plan Assets-Participant Contributions regulation, all employers must forward employee contributions to pension plans as soon as they can reasonably be segregated from the general assets of the employer, but no later than the 15th business day of the month following the month in which the contributions are received or withheld by the employer.     

Under the proposed safe harbor amendment published on February 29, 2008, contributions to a “small” benefit plan (a plan with fewer than 100 participants) will be treated as having been made to the plan “on the earliest date on which such contributions can reasonably be segregated from the employer’s general assets” when contributions are deposited with the plan no later than 7 business days after the day on which the amount was received by the employer or withheld by the employer from the participant’s wages. The public comment period for this proposed regulation closed on April 29, 2008.  Public comments may be reviewed on the DOL website.

Second, EBSA intends complete by December 2008 a review of the existing Plan Assets-Participant Contributions regulation, 29 C.F.R. § 2510.3-102, to examine, among other things: (1) the continued need for the rule; (2) the nature of the comments received from the public regarding the rule; (3) the complexity of the rule; and (4) the extent to which the rule overlaps, duplicates or conflicts with other federal, state, and local rules. The review is being undertaken under section 610 of the Regulatory Flexibility Act, 29 U.S.C. § 1135, which requires periodic review by agencies of rules “which have or will have a significant economic impact upon a substantial number of small entities” to determine if a rule should be continued without change, amended, or rescinded.  EBSA’s review commenced in March 2006.