Office of Inspector General—Office of Audit 

EMPLOYEE BENEFITS SECURITY 

ADMINISTRATION 

EBSA NEEDS TO MONITOR THE PROJECTED 

IMPACT OF THE QUALIFIED DEFAULT 

INVESTMENT ALTERNATIVE REGULATION 

Date Issued: March 31, 2011 

Report Number: 09-11-002-12-121 
 

 

 

U.S. Department of Labor 

Office of Inspector General 

Office of Audit 

BRIEFLY... 

Highlights of Report Number 09-11-002-12-121, to the 

Assistant Secretary for Employee Benefits Security. 

WHY READ THE REPORT 

Approximately one-third of eligible workers do not 

participate in their employers’ 401(k)-type plans. The 

Pension Protection Act (PPA), signed into law in 2006, 

removed impediments to employers adopting automatic 

enrollment, including employer fears about legal liability 

for market fluctuations and the applicability of state 

wage withholding laws. These impediments had 

prevented many employers from adopting automatic 

enrollment, or had led them to invest workers’ 

contributions in low-risk, low-return “default” 

investments. 

The PPA directed the Department of Labor to issue a 

regulation to assist employers in selecting optimal 

default investments. The Department issued a 

proposed regulation on October 24, 2007. 

The Department estimated the regulation would 

increase retirement savings from about $70 billion to 

$134 billion by 2034. The Department stated this 

increase would be accomplished through increased 

employee participation and increased average 

investment returns. 

WHY OIG CONDUCTED THE AUDIT 

We conducted an audit to determine what EBSA is 

doing to assess employee participation in retirement 

plans and average investment returns are increasing. 

The audit covered EBSA’s monitoring process for 

assessing, on a continuing basis, the impact of QDIA 

regulation. The audit period covered December 2007 

through March 2011. 

READ THE FULL REPORT 

To view the report, including the scope, methodology, 

and full agency response, go to: 

http://www.oig.dol.gov/public/reports/oa/2011/09-11-

002-12-121.pdf 

March 2011 

EBSA NEEDS TO MONITOR THE PROJECTED 

IMPACT OF THE QUALIFIED DEFAULT 

INVESTMENT ALTERNATIVE REGULATION 

WHAT OIG FOUND 

The OIG found EBSA needs to develop a process to 

determine whether the QDIA regulation is helping to 

increase employee participation and average 

investment returns in retirement plans through 

automatic enrollments. 

EBSA estimated the regulation would increase 

retirement savings from about $70 billion to $134 billion 

by 2034. However, EBSA did not develop plans to 

determine whether automatic enrollments resulted in 

greater employee participation or increased retirement 

savings subsequent to issuing the regulation. 

Since increased participation and investment returns 

are critical to the retirement savings of American 

workers, it is important to monitor these indicators. 

Without a monitoring process in place, increasing the 

retirement savings of employees is at risk because 

EBSA cannot know if the QDIA regulation is having its 

intended effects. 

WHAT OIG RECOMMENDED 

The OIG recommended the Assistant Secretary for 

Employee Benefits Security develop and implement a 

process to monitor if employee participation and 

average investment returns in retirement plans increase 

over time and take appropriate action if needed to 

determine if any modifications to the regulation is 

warranted. 

In response to our draft report, the Assistant Secretary 

for Employee Benefits Security stated that EBSA does 

not plan to monitor the separate effect of the QDIA 

regulation, because its existing processes for 

monitoring retirement plan trends and assessing 

whether and when regulations should be amended are 

effective. We continue to believe that in order to make 

appropriate recommendations to policy makers, EBSA 

should evaluate whether the QDIA regulation is having 

its intended impact. 
 

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EBSA Needs to Monitor QDIA Impact 

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U.S. Department of Labor – Office of Inspector General 

Table of Contents 

Assistant Inspector General’s Report ......................................................................... 1
 

Results In Brief.............................................................................................................. 2
 

Objective — What is EBSA doing to assess if employee participation in retirement 

plans and average investment returns are increasing? ....................... 3
 

EBSA does not know if QDIAs are achieving their intended economic 

impact................................................................................................................... 3
 

Finding — EBSA Needs to Have a Process to Assess if the QDIA 

Regulation is Accomplishing its Purpose............................................ 3
 

Recommendations ........................................................................................................ 5
 

Appendices 

Appendix A Background ....................................................................................... 9
 

Appendix B Objective, Scope, Methodology, and Criteria .................................. 11
 

Appendix C Acronyms and Abbreviations .......................................................... 13
 

Appendix D EBSA Response to Draft Report..................................................... 15
 

Appendix E Acknowledgements ......................................................................... 17
 

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Report No. 09-11-002-12-121 
 

 

 

U.S. Department of Labor – Office of Inspector General 

U.S. Department of Labor Office of Inspector General 

Washington, D.C. 20210 

March 31, 2011 

Assistant Inspector General’s Report 

Phyllis C. Borzi 

Assistant Secretary for 

Employee Benefits Security 

US Department of Labor 

200 Constitution Avenue, NW 

Washington, D.C. 20210 

Approximately one-third of eligible workers do not participate in their 

employer-sponsored defined contribution plans (such as 401(k) plans). The Pension 

Protection Act (PPA), signed into law in 2006, removed some important impediments to 

increasing participation through automatic enrollment, including employer fears about 

legal liability for market fluctuations and the applicability of state wage withholding laws. 

These impediments had prevented many employers from adopting automatic enrollment 

or had led them to invest workers’ contributions in low-risk, low-return “default” 

investments. Under the PPA, employers are relieved of certain legal liabilities if they 

invest the non-directed assets in a “qualified default investment alternative” (QDIA). 

In response to the PPA, DOL issued a regulation to increase employee participation and 

average investment returns in retirement plans by assisting employers in selecting 

optimal default investments. DOL administers this regulation through the Employee 

Benefits Security Administration (EBSA). 

We conducted an audit to determine what EBSA is doing to assess if employee 

participation in retirement plans and average investment returns are increasing. 

To accomplish our objective, we reviewed EBSA’s policies and procedures regarding 

the assessment of potential and actual impacts of the QDIA regulation. We interviewed 

EBSA officials, reviewed external reports obtained by EBSA from its Regulatory Impact 

Analysis, and interviewed officials from private employee benefits organizations. 

We conducted this performance audit in accordance with generally accepted 

government auditing standards. Those standards require that we plan and perform the 

audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objective. We believe that the evidence 

obtained provides a reasonable basis for our findings and conclusions based on our 

audit objective. 

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1 Report No. 09-11-002-12-121 
 

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RESULTS IN BRIEF 

EBSA needs to develop a process to determine whether the QDIA regulation is helping 

to increase employee participation and average investment returns in retirement plans 

through automatic enrollments. 

EBSA estimated the regulation would increase retirement savings from about $70 billion 

to $134 billion by 2034. However, EBSA did not develop plans to determine whether 

automatic enrollments resulted in greater employee participation or increased retirement 

savings subsequent to issuing the regulation. The Form 5500, Annual Return/Report of 

Employee Benefit Plan, now includes data on automatic enrollment, but does not 

include data on employee participation or average investment returns. Alternatively, 

EBSA could use available private data to determine if, in the years since EBSA issued 

the regulation, either plan participation or average investment returns increased. 

EBSA officials stated it would be difficult to attribute any actual increases in retirement 

savings or plan participation to the regulation and they do not believe it is necessary. 

Therefore, they did not develop a process to monitor the actual effect. 

EBSA intended its QDIA regulation to help accomplish the goal of increasing 

participation and average investment returns through automatic enrollment and default 

investments. Since increased participation and investment returns are critical to the 

retirement savings of American workers, it is important to monitor these indicators. 

Without a monitoring process in place, increasing the retirement savings of employees, 

as EBSA intended, is at risk because EBSA cannot know if the QDIA regulation is 

having its intended effects. 

We recommend the Assistant Secretary for Employee Benefits Security develop and 

implement a process to monitor if employee participation and average investment 

returns in retirement plans increase over time and take appropriate action to determine 

if any modifications to the regulation is warranted. 

In response to our draft report, the Assistant Secretary for Employee Benefits Security 

stated that existing processes for monitoring retirement plan trends and assessing 

whether and when its regulations should be amended are effective and does not believe 

additional steps to monitor the separate effect of the QDIA regulation are necessary. 

Additionally, the Assistant Secretary stated that collecting the data required to correlate 

the regulation's impact on employee participation and investment returns in retirement 

plans would be cost prohibitive. 

We continue to believe that EBSA needs to evaluate whether the QDIA regulation is 

having its intended impact. To clarify, we are not recommending that EBSA directly 

correlate such factors as rates of return to the regulation. We are recommending that 

EBSA assess such indicators as whether employee participation is increasing through 

automatic enrollment and whether default investments are moving from low return 

investments to more appropriate retirement vehicles. We believe EBSA has access to 

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2 Report No. 09-11-002-12-121 
 

U.S. Department of Labor – Office of Inspector General 

the data needed to perform these types of assessments, and believe the result of such 

assessments would be useful in evaluating the impact of the regulation and to identify 

possible ways to improve it. 

RESULTS AND FINDING 

Objective — What is EBSA doing to assess if employee participation in retirement 

plans and average investment returns are increasing? 

 EBSA does not know if QDIAs are achieving their intended economic impact. 

Finding — EBSA Needs to Have a Process to Assess if the QDIA Regulation is 

Accomplishing its Purpose 

EBSA has not assessed if employee participation in retirement plans and average 

investment returns are increasing. 

Under automatic enrollment, an employer enrolls a worker into a retirement plan 

automatically unless they explicitly choose to opt out. In the past, under defined 

contribution plans, workers typically would decide whether to participate. 

While EBSA had concerns about using private data, we believe it would be useful for 

EBSA to use available private data to determine if, in the years since EBSA issued the 

regulation, either plan participation or average investment returns increased. For 

example, in recent years, studies have shown that automatic enrollment in retirement 

plans increases both the number of workers participating in retirement plans and the 

amount of money saved. For example, a study by Fidelity investments showed that 

automatic enrollment increased worker participation in retirement plans from 53 percent 

to 81 percent. Additionally, the participation rate for eligible employees in their 20s 

earning less than $30,000 per year was 54 percentage points higher than for those 

without automatic enrollment. 

Another study by Vanguard Center for Retirement Research showed that automatic 

enrollment increased worker participation from 45 percent to 86 percent. The Center’s 

analysis of about 50 plans adopting automatic enrollment showed that automatic 

enrollment raises participation rates across most demographic groups, with its largest 

effect among low-wage and younger employees. Specifically, workers under 25 had a 

participation rate that increased from 30 percent to 81 percent when auto-enrollment 

was a plan feature. The study further noted that workers earning less than $30,000, and 

hired under automatic enrollment have a participation rate of 77%, but employees at the 

same income level hired under voluntary enrollment had a participation rate of 25%. 

The study pointed out that the DOL regulation was expected to encourage increased 

investment activity in diversified multi-asset-class portfolios, thus increasing retirement 

security. 

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Despite these benefits, an impediment to automatic enrollment has been the fiduciary 

liability attached to withholding funds from employees’ paychecks and choosing where 

to invest the money absent specific directions from the employee. If plan officials 

invested the funds and the investments lost value, plan officials, as fiduciaries, could be 

liable for the losses. Thus, sponsors were hesitant to use automatic enrollment. When 

they did, they chose very safe investments that produced low returns. While reducing 

the risk of loss, these safe investments were generally not appropriate for long-term 

retirement investments. 

The PPA tried to alleviate this situation by directing EBSA to develop a regulation that 

would define investments sponsors could utilize, but would shield them from fiduciary 

liability and increase the return employees received on their retirement investment. 

In implementing the PPA, EBSA believed the QDIA regulation would be consistent with 

its mission to increase retirement security for American workers. In issuing the final rule, 

EBSA stated: 

This regulation is expected to have two major economic 

consequences. Default investments will be directed more 

toward higher-return portfolios, boosting average investment 

returns, and automatic enrollment provisions will become 

more common, boosting participation. Both of these effects 

will increase average retirement savings, especially among 

workers who are younger, have lower earnings and/or more 

frequent job changes. 

EBSA also stated that it was confident the regulation would increase the incidence of 

automatic enrollment. 

However, EBSA did not develop plans to monitor whether employee participation or 

overall retirement savings improved or to determine if any modification to the regulation 

was warranted. Although, EBSA recently revised the Form 5500 to collect information 

on automatic enrollment, this was not done in relation to the QDIA regulation and EBSA 

has not developed formal plans to use this data to evaluate whether the regulation is 

having the intended effect. In addition, EBSA did not collect data on employee 

participation or average investment returns. 

EBSA officials stated it would be difficult to attribute any actual increases in retirement 

savings or plan participation to the QDIA regulation and do not plan to monitor the 

regulations impact. 

Although it could be difficult to attribute any actual increases in retirement savings or 

plan participation to the QDIA regulation, EBSA should be able to determine whether 

the overall objectives, increases in employee participation and average investment 

returns, are being achieved. In addition to the Form 5500, there are other sources for 

data, some of which are currently available. For example, BLS issues a National 

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Compensation Survey that provides information on trends in retirement plan features 

and participation rates. In addition, private research studies, as noted earlier, have used 

information from retirement investment providers such as mutual fund companies, which 

have current data on retirement plans they serve. EBSA does not currently have plans 

to utilize this information to analyze the impact of the regulation. 

RECOMMENDATION 

We recommend the Assistant Secretary for Employee Benefits Security develop and 

implement a process to monitor if employee participation and average investment 

returns in retirement plans increase over time and take appropriate action if needed to 

determine if any modifications to the regulation is warranted. 

We appreciate the cooperation and courtesies that EBSA personnel extended to the 

Office of Inspector General during this audit. OIG personnel who made major 

contributions to this report are listed in Appendix E. 

Elliot P. Lewis 

Assistant Inspector General for Audit 

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Appendices 

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U.S. Department of Labor – Office of Inspector General 

Appendix A 

Background 

The Pensions Protection Act (PPA) was enacted in 2006 and was the most 

comprehensive reform of the nation’s pension laws since the enactment of the 

Employee Retirement Income Security Act of 1974 (ERISA, P.L. 93-406). The PPA 

directed the Department of Labor to issue a regulation to assist employers in selecting 

default investments1 that best serve the retirement needs of workers who do not direct 

their own investments. 

The Department issued 29 Code of Federal Regulations Part 2550 (29 CFR Part 2550), 

Default Investment Alternatives Under Participant Directed Individual Account Plans, on 

October 24, 2007. At that time, EBSA expected that the regulation would have two 

major economic impacts, increasing both average investment returns and employee 

participation in retirement plans through automatic enrollment. EBSA estimated the 

regulation would increase retirement savings from about $70 billion to $134 billion by 

2034. The Department believed there was a substantial risk that savings would fall short 

relative to many workers’ retirement income expectations, because of increasing health 

costs and stresses on defined benefit pension plans and the Social Security program. 

The Department believed the regulation would help reduce that risk. 

1

 In the absence of employee directions on investing retirement contributions in a self-directed defined 

contribution plan, the contributions will be automatically enrolled in a QDIA. 

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U.S. Department of Labor – Office of Inspector General 

Appendix B 

Objective, Scope, Methodology, and Criteria 

Objective 

Our audit objective was to answer the following question: 

What is EBSA doing to assess if employee participation in retirement plans and average 

investment returns are increasing? 

Scope 

The audit covered EBSA’s monitoring process for assessing, on a continuing basis, the 

impact of QDIA regulation. The audit period covered the effective date of the regulation, 

December 2007, to the exit conference in March 2011. We conducted our fieldwork at 

EBSA’s headquarters in Washington, DC. 

We conducted this performance audit in accordance with generally accepted 

government auditing standards. Those standards require that we plan and perform the 

audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objective. We believe that the evidence 

obtained provides a reasonable basis for our findings and conclusions based on our 

audit objective. 

Methodology 

To accomplish our objective, we reviewed applicable criteria, including 29 CFR Part 

2550, the Pension Protection Act of 2006, and Field Assistance Bulletin 2008-3. We 

assessed EBSA policies and procedures regarding the QDIA regulation, specifically, 

those procedures regarding the potential and actual impact of the QDIA regulation. We 

interviewed EBSA officials from the Office of Policy and Research to obtain an 

understanding of EBSA’s process for assessing the impact of the QDIA regulation. We 

obtained and reviewed the three external reviews EBSA obtained of its Regulatory 

Impact Analysis (RIA)2

. 

Furthermore, we interviewed officials from EBSA’s (1) Office of Enforcement concerning 

how the QDIA regulation is enforced, (2) Office of Regulations and Interpretations 

concerning how the QDIA regulation was developed and implemented, and (3) Office of 

Participant Assistance concerning how the regulation was incorporated into EBSA 

outreach efforts. 

We also interviewed officials from the Profit Sharing/401(k) Council of America and the 

Employee Benefits Research Institute to obtain their views regarding EBSA’s regulation 

2

 The analysis that EBSA used to determine the regulation’s impact. 

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and its potential effect on retirement plans. Additionally, we interviewed GAO officials 

and reviewed GAO reports as well as studies by Vanguard and Fidelity Investments. 

In planning and performing our audit, we considered EBSA’s internal controls that were 

relevant to our audit objective. We confirmed our understanding of these controls and 

procedures through interviews, observations, and inquiries. Our consideration of internal 

controls relevant to our audit objective would not necessarily disclose all matters that 

might be significant deficiencies. Because of inherent limitations in internal controls, 

misstatements or noncompliance may nevertheless occur and not be detected. 

Criteria 

29 CFR 2550 Default Alternatives under Participant Directed Individual Account Plans; 

Final Rule 

Pension Protection Act of 2006 

Field Assistance Bulletin 2008-3 

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Appendix C 

Acronyms and Abbreviations 

CFR Code of Federal Regulations 

DOL Department of Labor 

EBSA Employment Benefit Security Administration 

ERISA Employment Retirement Income Security Act 

PPA Pension Protection Act of 2006 

QDIA Qualified Default Investment Alternatives 

RIA Regulatory Impact Analysis 

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U.S. Department of labor 

MAR 3 0 1011 

MEMORANDUM FOR: 

FROM: 

SUBJECT: 

Assistanl Secretary for 

Employee Benefits Security Administration 

Washington, D.C. 20210 

ELLIOT P. LEWIS 

Assistant Inspector General for Audit (l OJ""') 

PHYLLIS C. BORZI 

~. /vl,i ... l­ V • 

Assistant Secretary for Employee Benefits Security 

EBSA Response to O[G Performance Audit 

Draft Audit Report Number 09-11-002-1 2-1 21 

Thank you for the opportunity to comment on the recommendation in your above 

referenced Audit Report on the Emp[oyee Benefits Security Administration's assessment 

of whether employee participation in retirement plans and average retirement savings arc 

increasing. 

DIG's Recommendation: De\'c10p and implement a process to monitor ir average 

investment returns and employee participation in retirement plans increase over 

time and to take appropriate action ir needed and to determine if any modifications 

to the regulation or Qualified Default Investment Alternatives (QDIA)(29 e FR 

2550.404c-5) is warranted. 

EBSA believes ilS existing processes for monitoring retirement plan trends and assessing 

whether and when its regulations should be amended are effC(;tive and appropriately 

responsive to the Inspector General's (IO 's) recommendations. No additional steps are 

warranted. For example, EBSA recently revised the Form 5500 to collect infomlation on 

automatic enrollment, as the IG reports. EBSA also routinely produces statistics and 

carries out research on retirement plan trends, and makes use of statistics and research 

produced by others as illustrated by EBSA's production and publication of estimates of 

retirement plan participation and investment returns annually (see 

hUp:!!www.dol.gov!ebsalodf/1975-200Zhistoricaltables.l?dO. These are just some of 

myriad indicators EBSA follows to monitor and assess retirement plan trends. 

As the IG reports, EBSA has no plan to monitor the separate effect of the QDIA 

regulation on retirement plan investment performance and participation. Isolating the 

QDlA regulation's effect from the effects ofiarger forces is infeasible and beyond the 

scope of the 10's recommendation. The data required to attempt to correlate the 

regulation's impact on investment returns and employee participation in retirement plans 

would be cost prohibitive to collect, and no pre-regulation baseline data exists for 

comparison. 

U.S. Department of Labor – Office of Inspector General 

Appendix D 

EBSA Response to Draft Report 

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15 Report No. 09-11-002-12-121 
 

EBSA continually evaluates the effectiveness of its existing regulations and the 

appropriateness of amendments to them. This evaluation is the basis for EBSA's 

regulatory agenda, which EBSA publishes semiannually pursuant to Executive Order 

12866. The evaluation is informed by retirement plan trends, stakeholder input, 

experience gained through EBSA's enforcement and participant assistance programs, and 

various external factors such as legislative and technological developments. Such 

evaluation recently prompted EBSA to propose amendments to its QDlA regulation (See 

Federal Register: November 30, 2010 (Volume 75, Number 229), Proposed Rules, Page 

73987-73995). 

EBSA appreciates this opportunity to explain its processes for monitoring retirement plan 

trends and assessing whether and when its regulations should be amended. 

2 

U.S. Department of Labor – Office of Inspector General 

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Appendix E 

Acknowledgements 

Key contributors to this report were Ralph McClane, Audit Director, Mary Stepney, 

Naomi Byberg, Samantha Cash-Johnson, Timothy Kerschen, and Mary Lou Casazza. 

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TO REPORT FRAUD, WASTE, OR ABUSE, PLEASE CONTACT: 

Online: http://www.oig.dol.gov/hotlineform.htm 

Email: hotline@oig.dol.gov 

Telephone: 1-800-347-3756 

202-693-6999 

Fax: 202-693-7020 

Address: Office of Inspector General 

U.S. Department of Labor 

200 Constitution Avenue, N.W. 

 Room S-5506 

Washington, D.C. 20210