115TH CONGRESS
1ST SESSION
H. R. 854
To amend the Internal Revenue Code of 1986 to modify the qualification
requirements with respect to certain multiple employer plans with pooled
plan providers, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 3, 2017
Mr. BUCHANAN (for himself, Mr. NEAL, Mr. RENACCI, and Mr. KIND) introduced
the following bill; which was referred to the Committee on Education
and the Workforce, and in addition to the Committee on Ways and
Means, for a period to be subsequently determined by the Speaker, in
each case for consideration of such provisions as fall within the jurisdiction
of the committee concerned
A BILL
To amend the Internal Revenue Code of 1986 to modify
the qualification requirements with respect to certain
multiple employer plans with pooled plan providers, and
for other purposes.
1 Be it enacted by the Senate and House of Representa2
tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4 This Act may be cited as the ‘‘Retirement Security
5 for American Workers Act’’.
2
SEC. 2. MULTIPLE EMPLOYER PLANS WITH POOLED PLAN
PROVIDERS.
(a) QUALIFICATION REQUIREMENTS.—Section 413
of the Internal Revenue Code of 1986 is amended by adding
at the end the following new subsection:
‘‘(e) APPLICATION OF QUALIFICATION REQUIREMENTS
FOR CERTAIN MULTIPLE EMPLOYER PLANS WITH
POOLED PLAN PROVIDERS.—
‘‘(1) IN GENERAL.—Except as provided in paragraph
(2), if a defined contribution plan to which
subsection (c) applies—
‘‘(A) is sponsored by employers that both
have a common interest other than having
adopted the plan and control the plan, or
‘‘(B) in the case of a plan not described in
subparagraph (A), has a pooled plan provider,
then the plan shall not be treated as failing to meet
the requirements under this title applicable to a plan
described in section 401(a) or to a plan that consists
of individual retirement accounts described in section
408 of such Code (including by reason of subsection
(c) thereof), whichever is applicable, 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 requirements.
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1 ‘‘(2) LIMITATIONS.—
2 ‘‘(A) IN GENERAL.—Paragraph (1) shall
3 not apply to any plan unless the terms of the
4 plan provide that in cases of employers failing
5 to take the actions described in paragraph
6 (1)—
7 ‘‘(i) the assets of the plan attributable
8 to employees of the employer will be trans9
ferred to a plan maintained only by the
10 employer (or its successor), to an eligible
11 retirement plan as defined in section
12 402(c)(8)(B) for each individual whose ac13
count is transferred, or to any other ar14
rangement that the Secretary determines is
15 appropriate, unless the Secretary deter16
mines it is in the best interests of such em17
ployees to retain the assets in the plan,
18 and
19 ‘‘(ii) the employer described in clause
20 (i) (and not the plan with respect to which
21 the failure occurred or any other partici22
pating employer in such plan) shall, except
23 to the extent provided by the Secretary, be
24 liable for any liabilities with respect to
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1 such plan attributable to employees of the
2 employer.
3 ‘‘(B) FAILURES BY POOLED PLAN PRO4
VIDERS.—If the pooled plan provider of a plan
described in paragraph (1)(B) does not perform
6 substantially all of the administrative duties
7 which are required of the provider under para8
graph (3)(A)(i) for any plan year, the Sec9
retary, in the Secretary’s own discretion, may
provide that the determination as to whether
11 the plan meets the requirements under this title
12 applicable to a plan described in section 401(a)
13 or to a plan that consists of individual retire14
ment accounts described in section 408 of such
Code (including by reason of subsection (c)
16 thereof), whichever is applicable, shall be made
17 in the same manner as would be made without
18 regard to paragraph (1).
19 ‘‘(3) POOLED PLAN PROVIDER.—For purposes
of this subsection—
21 ‘‘(A) IN GENERAL.—The term ‘pooled plan
22 provider’ means, with respect to any plan, a
23 person who—
24 ‘‘(i) is designated by the terms of the
plan as a named fiduciary (as defined in
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1 section 402(a)(2) of the Employee Retire2
ment Income Security Act of 1974), as the
3 plan administrator, and as the person re4
sponsible to perform all administrative duties
(including conducting proper testing
6 with respect to the plan and employees of
7 each participating employer) which are
8 reasonably necessary to ensure that—
9 ‘‘(I) the plan meets the requirements
of the Employee Retirement In11
come Security Act of 1974 and any
12 requirement applicable under this title
13 to a plan described in section 401(a)
14 or to a plan that consists of individual
retirement accounts described in sec16
tion 408 of such Code (including by
17 reason of subsection (c) thereof),
18 whichever is applicable, and
19 ‘‘(II) each participating employer
takes such actions as the Secretary or
21 such person determines necessary for
22 the plan to meet the requirements de23
scribed in subclause (I), including pro24
viding to such person any disclosures
or other information which the Sec
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1 retary may require or which such per2
son otherwise determines is necessary
3 to administer the plan or to allow the
4 plan to meet such requirements,
5 ‘‘(ii) registers as a pooled plan pro6
vider with the Secretary, and provides such
7 other information to the Secretary as the
8 Secretary may require, before beginning
9 operations as a pooled plan provider,
10 ‘‘(iii) acknowledges in writing that
11 such person is a named fiduciary (within
12 the meaning of section 402(a)(2) of the
13 Employee Retirement Income Security Act
14 of 1974), and the plan administrator, with
15 respect to the plan, and
16 ‘‘(iv) is responsible for ensuring that
17 all persons who handle assets of, or who
18 are fiduciaries of, the plan are bonded in
19 accordance with section 412 of the Em20
ployee Retirement Income Security Act of
21 1974.
22 ‘‘(B) AUDITS, EXAMINATIONS AND INVES23
TIGATIONS.—The Secretary may perform au24
dits, examinations, and investigations of pooled
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1 plan providers as may be necessary to enforce
2 and carry out the purposes of this subsection.
3 ‘‘(4) GUIDANCE.—
4 ‘‘(A) IN GENERAL.—The Secretary shall
5 issue such guidance as the Secretary determines
6 appropriate to carry out this subsection, includ7
ing guidance—
8 ‘‘(i) to identify the administrative du9
ties and other actions required to be per10
formed by a pooled plan provider under
11 this subsection,
12 ‘‘(ii) which describes the procedures to
13 be taken to terminate a plan which fails to
14 meet the requirements to be a plan de15
scribed in paragraph (1), including the
16 proper treatment of, and actions needed to
17 be taken by, any participating employer of
18 the plan and the assets and liabilities of
19 the plan with respect to employees of that
20 employer, and
21 ‘‘(iii) identifying appropriate cases to
22 which the rules of paragraph (2)(A) will
23 apply to employers failing to take the ac24
tions described in paragraph (1).
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1 The Secretary shall take into account under
2 subparagraph (C) whether the failure of an em3
ployer or pooled plan provider to provide any
4 disclosures or other information, or to take any
5 other action, necessary to administer a plan or
6 to allow a plan to meet requirements applicable
7 to the plan under section 401(a) has continued
8 over a period of time that clearly demonstrates
9 a lack of commitment to compliance.
10 ‘‘(B) PROSPECTIVE APPLICATION.—Any
11 guidance issued by the Secretary under this
12 paragraph shall not apply to any action or fail13
ure occurring before the issuance of such guid14
ance.
15 ‘‘(5) MODEL PLAN.—The Secretary shall, in
16 consultation with the Secretary of Labor when ap17
propriate, publish model plan language which meets
18 the requirements of this subsection and of para19
graphs (43) and (44) of section 3 of the Employee
20 Retirement Income Security Act of 1974 and which
21 may be adopted to be treated as a pooled employer
22 plan.’’.
23 (b) NO COMMON INTEREST REQUIRED FOR POOLED
24 EMPLOYER PLANS.—Section 3(2) of the Employee Retire
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1 ment Income Security Act of 1974 (29 U.S.C. 1002(2))
2 is amended by adding at the end the following:
3 ‘‘(C) A pooled employer plan shall be treat4
ed as—
‘‘(i) a single employee pension benefit
6 plan or single pension plan; and
7 ‘‘(ii) a plan to which section 210(a)
8 applies.’’.
9 (c) POOLED EMPLOYER PLAN AND PROVIDER DEFINED.—
11 (1) IN GENERAL.—Section 3 of the Employee
12 Retirement Income Security Act of 1974 (29 U.S.C.
13 1002) is amended by adding at the end the fol14
lowing:
‘‘(43) POOLED EMPLOYER PLAN.—
16 ‘‘(A) IN GENERAL.—The term ‘pooled em17
ployer plan’ means a plan—
18 ‘‘(i) which is an individual account
19 plan established or maintained for the purpose
of providing benefits to the employees
21 of two or more employers;
22 ‘‘(ii) which is a plan described in sec23
tion 401(a) of the Internal Revenue Code
24 of 1986 which includes a trust exempt
from tax under section 501(a) of such
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1 Code or a plan that consists of individual
2 retirement accounts described in section
3 408 of such Code (including by reason of
4 subsection (c) thereof); and
‘‘(iii) the terms of which meet the re6
quirements of subparagraph (B).
7 Such term shall not include a plan with respect
8 to which the participating employers both share
9 a common interest other than participation in
the plan and control the plan.
11 ‘‘(B) REQUIREMENTS FOR PLAN TERMS.—
12 The requirements of this subparagraph are met
13 with respect to any plan if the terms of the
14 plan—
‘‘(i) designate a pooled plan provider
16 and provide that the pooled plan provider
17 is a named fiduciary of the plan;
18 ‘‘(ii) designate one or more trustees
19 meeting the requirements of section
408(a)(2) of the Internal Revenue Code of
21 1986 (other than a participating employer)
22 to be responsible for collecting contribu23
tions to, and holding the assets of, the
24 plan and require such trustees to implement
written contribution collection proce
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1 dures that are reasonable, diligent, and
2 systematic;
3 ‘‘(iii) provide that each participating
4 employer retains fiduciary responsibility
for—
6 ‘‘(I) the selection and monitoring
7 in accordance with section 404(a) of
8 the person designated as the pooled
9 plan provider and any other person
who, in addition to the pooled plan
11 provider, is designated as a named fi12
duciary of the plan; and
13 ‘‘(II) to the extent not otherwise
14 delegated to another fiduciary by the
pooled plan provider and subject to
16 the provisions of section 404(c), the
17 investment and management of that
18 portion of the plan’s assets attrib19
utable to the employees of that participating
employer;
21 ‘‘(iv) provide that a participating em22
ployer, or a participant or beneficiary, is
23 not subject to unreasonable restrictions,
24 fees, or penalties with regard to ceasing
participation, receipt of distributions, or
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1 otherwise transferring assets of the plan in
2 accordance with section 208;
3 ‘‘(v) require—
4 ‘‘(I) the pooled plan provider to
provide to participating employers any
6 disclosures or other information which
7 the Secretary may require, including
8 any disclosures or other information
9 to facilitate the selection or any monitoring
of the pooled plan provider by
11 participating employers; and
12 ‘‘(II) each participating employer
13 to take such actions as the Secretary
14 or the pooled plan provider determines
necessary to administer the plan or
16 for the plan to meet the requirements
17 of this Act or any requirement appli18
cable under the Internal Revenue
19 Code of 1986 to a plan described in
section 401(a) of such Code or to a
21 plan that consists of individual retire22
ment accounts described in section
23 408 of such Code (including by reason
24 of subsection (c) thereof), whichever is
applicable, including providing any
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1 disclosures or other information which
2 the Secretary may require or which
3 the pooled plan provider otherwise de4
termines is necessary to administer
5 the plan or to allow the plan to meet
6 such requirements; and
7 ‘‘(vi) provide that any disclosure or
8 other information required to be provided
9 under clause (v) may be provided in elec10
tronic form and will be designed to ensure
11 only reasonable costs are imposed on
12 pooled plan providers and participating
13 employers.
14 ‘‘(C) EXCEPTIONS.—The term ‘pooled em15
ployer plan’ does not include—
16 ‘‘(i) a multiemployer plan; or
17 ‘‘(ii) a plan established before Janu18
ary 1, 2016, unless the plan administrator
19 elects that the plan will be treated as a
20 pooled employer plan and the plan meets
21 the requirements of this title applicable to
22 a pooled employer plan established on or
23 after such date.
24 ‘‘(44) POOLED PLAN PROVIDER.—
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1 ‘‘(A) IN GENERAL.—The term ‘pooled plan
2 provider’ means a person who—
3 ‘‘(i) is designated by the terms of a
4 pooled employer plan as the plan administrator
and as the person responsible for
6 the performance of all administrative du7
ties (including conducting proper testing
8 with respect to the plan and employees of
9 each participating employer) which are
reasonably necessary to ensure that—
11 ‘‘(I) the plan meets the require12
ments of this Act and any require13
ment applicable under the Internal
14 Revenue Code of 1986 to a plan described
in section 401(a) of such Code
16 or to a plan that consists of individual
17 retirement accounts described in sec18
tion 408 of such Code (including by
19 reason of subsection (c) thereof),
whichever is applicable; and
21 ‘‘(II) each participating employer
22 takes such actions as the Secretary or
23 pooled plan provider determines nec24
essary for the plan to meet the requirements
described in subclause (I),
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1 including providing the disclosures
2 and information described in para3
graph (43)(B)(v)(II);
4 ‘‘(ii) registers as a pooled plan pro5
vider with the Secretary, and provides to
6 the Secretary such other information as
7 the Secretary may require, before begin8
ning operations as a pooled plan provider;
9 ‘‘(iii) acknowledges in writing that
10 such person is a named fiduciary, and the
11 plan administrator, with respect to the
12 pooled employer plan; and
13 ‘‘(iv) is responsible for ensuring that
14 all persons who handle assets of, or who
15 are fiduciaries of, the pooled employer plan
16 are bonded in accordance with section 412.
17 ‘‘(B) AUDITS, EXAMINATIONS AND INVES18
TIGATIONS.—The Secretary may perform au19
dits, examinations, and investigations of pooled
20 plan providers as may be necessary to enforce
21 and carry out the purposes of this paragraph
22 and paragraph (43).
23 ‘‘(C) GUIDANCE.—The Secretary shall
24 issue such guidance as the Secretary determines
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1 appropriate to carry out this paragraph and
2 paragraph (43), including guidance—
3 ‘‘(i) to identify the administrative du4
ties and other actions required to be performed
by a pooled plan provider under ei6
ther such paragraph; and
7 ‘‘(ii) which requires in appropriate
8 cases that if a participating employer fails
9 to take the actions required under subparagraph
(A)(i)(II)—
11 ‘‘(I) the assets of the plan attrib12
utable to employees of the partici13
pating employer are transferred to a
14 plan maintained only by the participating
employer (or its successor), to
16 an eligible retirement plan as defined
17 in section 402(c)(8)(B) of the Internal
18 Revenue Code of 1986 for each indi19
vidual whose account is transferred,
or to any other arrangement that the
21 Secretary determines is appropriate in
22 such guidance; and
23 ‘‘(II) the participating employer
24 described in subclause (I) (and not
the plan with respect to which the
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1 failure occurred or any other partici2
pating employer in such plan) shall,
3 except to the extent provided in such
4 guidance, be liable for any liabilities
with respect to such plan attributable
6 to employees of the participating em7
ployer.
8 The Secretary shall take into account under
9 clause (ii) whether the failure of an employer or
pooled plan provider to provide any disclosures
11 or other information, or to take any other ac12
tion, necessary to administer a plan or to allow
13 a plan to meet requirements described in sub14
paragraph (A)(i)(II) has continued over a period
of time that clearly demonstrates a lack of
16 commitment to compliance. The Secretary may
17 waive the requirements of clause (ii)(I) in ap18
propriate circumstances if the Secretary deter19
mines it is in the best interests of the employees
of the participating employer described in
21 such clause to retain the assets in the plan with
22 respect to which the employer’s failure oc23
curred.
24 ‘‘(D) AGGREGATION RULES.—For purposes
of this paragraph—
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1 ‘‘(i) IN GENERAL.—In determining
2 whether a person meets the requirements
3 of this paragraph to be a pooled plan pro4
vider with respect to any plan, all persons
who are members of the same controlled
6 group and who perform services for the
7 plan shall be treated as one person.
8 ‘‘(ii) MEMBERS OF COMMON GROUP.—
9 Persons shall be treated as members of the
same controlled group if such persons are
11 treated as a single employer under sub12
section (c) or (d) of section 210.’’.
13 (2) EMPLOYEE TREATED AS EXERCISING CON14
TROL OVER ASSETS.—Section 404(c) of the Employee
Retirement Income Security Act of 1974 (29
16 U.S.C. 1104(c)) is amended by adding at the end
17 the following new paragraph:
18 ‘‘(6) In the case of a pooled employer plan that
19 consists of individual retirement accounts described
in section 408 of the Internal Revenue Code of 1986
21 (including by reason of subsection (c) thereof) and
22 that includes an automatic contribution arrangement
23 meeting the requirements of section 514(e) (deter24
mined without regard to paragraph (2)(C) thereof),
a participant or beneficiary shall, for purposes of
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1 paragraph (1), be treated as exercising control over
2 the assets in the account upon the earliest of—
3 ‘‘(A) an affirmative election among invest4
ment options with respect to the initial invest5
ment of any contribution,
6 ‘‘(B) a rollover to any other individual re7
tirement account, or
8 ‘‘(C) one year after the individual retire9
ment account is established.’’.
10 (3) BONDING REQUIREMENTS FOR POOLED EM11
PLOYER PLANS.—The last sentence of section 412(a)
12 of the Employee Retirement Income Security Act of
13 1974 (29 U.S.C. 1112(a)) is amended by inserting
14 ‘‘or in the case of a pooled employer plan’’ after
15 ‘‘section 407(d)(1))’’.
16 (4) CONFORMING AND TECHNICAL AMEND17
MENTS.—Section 3 of the Employee Retirement In18
come Security Act of 1974 (29 U.S.C. 1002) is
19 amended—
20 (A) in paragraph (16)(B)—
21 (i) by striking ‘‘or’’ at the end of
22 clause (ii), and
23 (ii) by striking the period at the end
24 and inserting ‘‘, or (iv) in the case of a
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1 pooled employer plan, the pooled plan pro2
vider.’’; and
3 (B) by striking the second paragraph (41).
4 (d) EFFECTIVE DATE.—
5 (1) IN GENERAL.—The amendments made by
6 this section shall apply to years beginning after De7
cember 31, 2016.
8 (2) RULE OF CONSTRUCTION.—Nothing in the
9 amendment made by subsection (c) shall be con10
strued as limiting the authority of the Secretary of
11 the Treasury or the Secretary’s delegate (determined
12 without regard to such amendment) to provide for
13 the proper treatment of a failure to meet any re14
quirement applicable under the Internal Revenue
15 Code of 1986 with respect to one employer (and its
16 employees) in a multiple employer plan.
17 SEC. 3. POOLED EMPLOYER AND MULTIPLE EMPLOYER
18 PLAN REPORTING.
19 (a) ADDITIONAL INFORMATION.—Section 103 of the
20 Employee Retirement Income Security Act of 1974 (29
21 U.S.C. 1023) is amended—
22 (1) in subsection (a)(1)(B), by striking ‘‘appli23
cable subsections (d), (e), and (f)’’ and inserting
24 ‘‘applicable subsections (d), (e), (f), and (g)’’; and
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1 (2) by amending subsection (g) to read as fol2
lows:
3 ‘‘(g) ADDITIONAL INFORMATION WITH RESPECT TO
4 POOLED EMPLOYER AND MULTIPLE EMPLOYER
PLANS.—An annual report under this section for a plan
6 year shall include—
7 ‘‘(1) with respect to any plan to which section
8 210(a) applies (including a pooled employer plan), a
9 list of participating employers and a good faith estimate
of the percentage of total contributions made
11 by such participating employers during the plan
12 year; and
13 ‘‘(2) with respect to a pooled employer plan, the
14 identifying information for the person designated
under the terms of the plan as the pooled plan pro16
vider.’’.
17 (b) SIMPLIFIED ANNUAL REPORTS.—Section 104(a)
18 of the Employee Retirement Income Security Act of 1974
19 (29 U.S.C. 1024(a)) is amended by striking paragraph
(2)(A) and inserting the following:
21 ‘‘(2)(A) With respect to annual reports required
22 to be filed with the Secretary under this part, the
23 Secretary may by regulation prescribe simplified an24
nual reports for any pension plan that—
‘‘(i) covers fewer than 100 participants; or
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1 ‘‘(ii) is a plan described in section 210(a)
2 that covers fewer than 1,000 participants, but
3 only if no single participating employer has
4 more than 100 participants covered by the
5 plan.’’.
6 (c) EFFECTIVE DATE.—The amendments made by
7 this section shall apply to annual reports for plan years
8 beginning after December 31, 2016.
Æ
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