Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Rules and Regulations 58445 

trustee’s request to be discharged as 

trustee. Pursuant to 28 U.S.C. 589b(d), 

the NDR must also include the 

following information: 

(1) The length of time the case was 

pending; 

(2) Assets abandoned; 

(3) Assets exempted; 

(4) Claims asserted; 

(5) Claims scheduled; and, 

(6) claims scheduled to be discharged 

without payment. 

(e) UST Form 101–12–FR–S, Chapter 

12 Standing Trustee’s Final Report and 

Account and UST Form 101–13–FR–S, 

Chapter 13 Standing Trustee’s Final 

Report and Account. After the final 

distribution to creditors in a chapter 12 

or 13 case in which a standing trustee 

has been appointed, a trustee must 

submit to the United States Trustee and 

file with the United States Bankruptcy 

Court either UST Form 101–12–FR–S 

for chapter 12 cases or UST Form 101– 

13–FR–S for chapter 13 cases, which are 

the trustee’s final report and account. In 

these forms, a trustee must include a 

certification that the estate has been 

fully administered if not converted to 

another chapter and a request to be 

discharged as trustee. Pursuant to 28 

U.S.C. 589b(d), these forms must also 

include the following information: 

(1) The length of time the case was 

pending; 

(2) Assets abandoned; 

(3) Assets exempted; 

(4) Receipts and disbursements of the 

estate; 

(5) Expenses of administration, 

including for use under section 707(b), 

actual costs of administering cases 

under chapter 12 or 13 (as applicable) 

of title 11; 

(6) Claims asserted; 

(7) Claims allowed; 

(8) Distributions to claimants and 

claims discharged without payment, in 

each case by appropriate category; 

(9) Date of confirmation of the plan; 

(10) Date of each modification thereto; 

and, 

(11) Defaults by the debtor in 

performance under the plan. 

(f) UST Form 101–12–FR–C, Chapter 

12 Case Trustee’s Final Report and 

Account, and UST Form 101–13–FR–C, 

Chapter 13 Case Trustee’s Final Report 

and Account. After the final distribution 

to creditors in a chapter 12 or 13 case 

in which a case trustee has been 

appointed, the trustee must submit to 

the United States Trustee and file with 

the United States Bankruptcy Court 

either UST Form 101–12–FR–C for 

chapter 12 cases, or UST Form 101–13– 

FR–C for chapter 13 cases, which are the 

trustee’s final report and account. In 

these forms, a trustee must include a 

certification, submitted under penalty of 

perjury, that the estate has been fully 

administered if not converted to another 

chapter and the trustee’s request to be 

discharged from further duties as 

trustee. Pursuant to 28 U.S.C. 589b(d), 

these forms must also include the 

following information: 

(1) The length of time the case was 

pending; 

(2) Assets abandoned; 

(3) Assets exempted; 

(4) Receipts and disbursements of the 

estate; 

(5) Expenses of administration, 

including for use under section 707(b), 

actual costs of administering cases 

under chapter 12 or 13 (as applicable) 

of title 11; 

(6) Claims asserted; 

(7) Claims allowed; 

(8) Distributions to claimants and 

claims discharged without payment, in 

each case by appropriate category; 

(9) Date of confirmation of the plan; 

(10) Date of each modification thereto; 

and, 

(11) defaults by the debtor in 

performance under the plan. 

(g) Mandatory Usage of Uniform 

Forms. The Uniform Forms associated 

with this rule must be utilized by 

trustees when completing their final 

reports and final accounts. All trustees 

serving in districts where a United 

States Trustee is serving must use the 

Uniform Forms in the administration of 

their cases, in the same manner, and 

with the same content, as set forth in 

this rule: 

(1) All Uniform Forms may be 

electronically or mechanically 

reproduced so long as all the content 

and the form remain consistent with the 

Uniform Forms as they are posted on 

EOUST’s Web site; 

(2) The Uniform Forms shall be filed 

via the United States Bankruptcy Courts 

Case Management/Electronic Case 

Filing System (CM/ECF) as a ‘‘smart 

form’’ meaning the forms are data 

enabled, unless the court offers an 

automated process that has been 

approved by EOUST, such as the virtual 

NDR event through CM/ECF. 

Dated: September 30, 2008. 

Clifford J. White, III, 

Director, Executive Office for United States 

Trustees. 

[FR Doc. E8–23700 Filed 10–6–08; 8:45 am] 

BILLING CODE 4410–40–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

29 CFR Part 2509 

RIN 1210–AB22 

Amendment to Interpretive Bulletin 

95–1 

AGENCY: Employee Benefits Security 

Administration, Department of Labor. 

ACTION: Final rule. 

SUMMARY: This document contains a 

final rule that amends Interpretive 

Bulletin 95–1 to limit the application of 

the Bulletin to the selection of annuity 

providers for defined benefit plans. Also 

appearing in today’s Federal Register is 

a final regulation, entitled ‘‘Selection of 

Annuity Providers—Safe Harbor for 

Individual Account Plans’’, which 

establishes a safe harbor for the 

selection of annuity providers for the 

purpose of benefit distributions from 

individual account plans covered by 

title I of the Employee Retirement 

Income Security Act (ERISA). The 

amendment to Interpretive Bulletin 95– 

1, as well as the safe harbor for annuity 

selections, will affect plan sponsors and 

fiduciaries of individual account plans, 

and the participants and beneficiaries 

covered by such plans. 

DATES: This final rule is effective on 

December 8, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Janet A. Walters or Allison E. Wielobob, 

Office of Regulations and 

Interpretations, Employee Benefits 

Security Administration, U.S. 

Department of Labor, Washington, DC 

20210, (202) 693–8510. This is not a 

toll-free number. 

SUPPLEMENTARY INFORMATION: 

A. Background 

In 1995, the Department issued 

Interpretive Bulletin 95–1 (29 CFR 

2509.95–1) (the IB), providing guidance 

concerning the fiduciary standards 

under Part 4 of Title I of ERISA 

applicable to the selection of annuity 

providers for purposes of pension plan 

benefit distributions. In general, the IB 

makes clear that the selection of an 

annuity provider in connection with 

benefit distributions is a fiduciary act 

governed by the fiduciary standards of 

section 404(a)(1), including the duty to 

act prudently and solely in the interest 

of the plan’s participants and 

beneficiaries. In this regard, the IB 

provides that plan fiduciaries must take 

steps calculated to obtain the safest 

annuity available, unless under the 


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58446 Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Rules and Regulations 

1A copy of the Report can be found on the About 

EBSA page under the heading ERISA Advisory 

Council at http://www.dol.gov/ebsa/publications/ 

AC_1105A_report.html. 

circumstances it would be in the 

interest of the participants and 

beneficiaries to do otherwise. The IB 

also provides that fiduciaries must 

conduct an objective, thorough and 

analytical search for purposes of 

identifying providers from which to 

purchase annuities and sets forth six 

factors that should be considered by 

fiduciaries in evaluating a provider’s 

claims paying ability and 

creditworthiness. 

In Advisory Opinion 2002–14A (Dec. 

18, 2002) the Department expressed the 

view that the general fiduciary 

principles set forth in the IB with regard 

to the selection of annuity providers 

apply equally to defined benefit and 

defined contribution plans. The opinion 

recognized that, the selection of annuity 

providers by the fiduciary of a defined 

contribution plan would be governed by 

section 404(a)(1) and, therefore, such 

fiduciary, in evaluating claims paying 

ability and creditworthiness of an 

annuity provider, should take into 

account the six factors set forth in 29 

CFR 2509.95–1(c). 

During 2005, the ERISA Advisory 

Council created the Working Group on 

Retirement Distributions & Options to 

study, in part, the nature of the 

distribution options available to 

participants of defined contribution 

plans. In November 2005, after public 

hearings and testimony, the Advisory 

Council issued a report, entitled Report 

of the Working Group on Retirement 

Distributions & Options,1 concluding 

that many defined contribution plan 

distributions tend to be paid out in 

lump sums which ‘‘expose retirees to a 

wide range of risks including the 

possibility of outliving assets, 

investment losses, and inflation risk.’’ 

The Advisory Council recommended 

that the Department revise the IB to 

facilitate the availability of annuity 

options in defined contribution plans. 

The Pension Protection Act of 2006 

(the PPA) (Pub. L. 109–280, 120 Stat. 

780) was enacted on August 17, 2006. 

Section 625 of the PPA directs the 

Secretary to issue final regulations 

within one year of the date of 

enactment, clarifying that the selection 

of an annuity contract as an optional 

form of distribution from an individual 

account plan is not subject to the safest 

available annuity standard under the IB 

and is subject to all otherwise 

applicable fiduciary standards. On 

September 12, 2007, the Department 

published an interim final regulation 

(72 FR 52004) limiting the scope of 

Interpretive Bulletin 95–1, relating to 

the selection of annuity providers, to 

defined benefit plans, as directed by 

section 625 of the Pension Protection 

Act of 2006 (the PPA) (Pub. L. 109–280, 

120 Stat. 780). The Department did not 

receive any comments on that interim 

final rule and is issuing that rule in 

final. Set forth below is an overview of 

the final rule. The Department is also 

adopting a final regulation, published in 

today’s Federal Register, which 

establishes a safe harbor for the 

selection of annuity providers for the 

purpose of benefit distributions from 

individual account plans covered by 

title I of ERISA. 

B. Overview of Final Rule 

In order to implement the 

Congressional mandate of section 625 of 

the PPA and to eliminate any confusion 

regarding the applicability of the 

fiduciary standards set forth in IB 95– 

1 to the selection of annuity providers 

for the purpose of benefit distributions 

from individual account plans, the 

Department is amending the IB to 

provide that it applies only to the 

selection of annuity providers for the 

purpose of benefit distributions from a 

defined benefit pension plan. 

C. Effective Date 

This final rule is effective 60 days 

after the date of publication in the 

Federal Register. 

D. Regulatory Impact Analysis 

Executive Order 12866 Statement 

Under Executive Order 12866 (58 FR 

51735), the Department must determine 

whether a regulatory action is 

‘‘significant’’ and therefore subject to 

review by the Office of Management and 

Budget (OMB). Section 3(f) of the 

Executive Order defines a ‘‘significant 

regulatory action’’ as an action that is 

likely to result in a rule (1) having an 

annual effect on the economy of $100 

million or more, or adversely and 

materially affecting a sector of the 

economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local or tribal 

governments or communities (also 

referred to as ‘‘economically 

significant’’); (2) creating serious 

inconsistency or otherwise interfering 

with an action taken or planned by 

another agency; (3) materially altering 

the budgetary impacts of entitlement 

grants, user fees, or loan programs or the 

rights and obligations of recipients 

thereof; or (4) raising novel legal or 

policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. Pursuant to the terms of the 

Executive Order, it has been determined 

that this action is not ‘‘significant’’ 

within the meaning of section 3(f) of the 

Executive Order, and, therefore, is not 

subject to review by OMB. 

Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) (RFA) imposes 

certain requirements with respect to 

Federal rules that are subject to the 

notice and comment requirements of 

section 553(b) of the Administrative 

Procedure Act (5 U.S.C. 551 et seq.) and 

that are likely to have a significant 

economic impact on a substantial 

number of small entities. Section 604 of 

the RFA requires that the agency present 

a final regulatory flexibility analysis in 

the publication of the notice of final 

rulemaking describing the impact of the 

rule on small entities. The Department 

has considered the likely impact of the 

final rule on small entities in 

connection with its assessment under 

Executive Order 12866, described 

above, and believes this rule will not 

have a significant impact on a 

substantial number of small entities. See 

notice of final rulemaking appearing in 

today’s Federal Register entitled 

‘‘Selection of Annuity Providers—Safe 

Harbor for Individual Account Plans.’’ 

Paperwork Reduction Act 

This rulemaking is not subject to the 

requirements of the Paperwork 

Reduction Act of 1995 (44 U.S.C. 301 et 

seq.) because it does not contain 

‘‘collection of information’’ 

requirements as defined in 44 U.S.C. 

3502(3). Accordingly, this final rule is 

not being submitted to the OMB for 

review under the Paperwork Reduction 

Act. 

Congressional Review Act 

The final rule being issued here is 

subject to the provisions of the 

Congressional Review Act provisions of 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 (5 

U.S.C. 801 et seq.) and will be 

transmitted to Congress and the 

Comptroller General for review. The 

final rule is not a ‘‘major rule’’ as that 

term is defined in 5 U.S.C. 804, because 

it does not result in (1) an annual effect 

on the economy of $100 million or 

more; (2) a major increase in costs or 

prices for consumers, individual 

industries, or Federal, State, or local 

government agencies, or geographic 

regions; or (3) significant adverse effects 

on competition, employment, 

investment, productivity, innovation, or 

on the ability of United States-based 


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Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Rules and Regulations 58447 

enterprises to compete with foreignbased enterprises in domestic and 

export markets. 

Unfunded Mandates Reform Act 

For purposes of the Unfunded 

Mandates Reform Act of 1995 (Pub. L. 

104–4), the final rule does not include 

any Federal mandate that may result in 

expenditures by State, local, or tribal 

governments, or impose an annual 

burden exceeding $100 million on the 

private sector. 

Federalism Statement 

Executive Order 13132 (August 4, 

1999) outlines fundamental principles 

of federalism and requires Federal 

agencies to adhere to specific criteria in 

the process of their formulation and 

implementation of policies that have 

substantial direct effects on the States, 

the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. This final rule 

does not have federalism implications 

because it has no substantial direct 

effect on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. Section 

514 of ERISA provides, with certain 

exceptions specifically enumerated, that 

the provisions of Titles I and IV of 

ERISA supersede any and all laws of the 

States as they relate to any employee 

benefit plan covered under fundamental 

provisions of the statute with respect to 

employee benefit plans, and as such 

would have no implications for the 

States or the relationship or distribution 

of power between the national 

government and the States. 

List of Subjects in 29 CFR Part 2509 

Employee benefit plans, Pensions. 

■ For the reasons set forth in the 

preamble, the Department amends 

Chapter XXV of Title 29 of the Code of 

Federal Regulations as follows: 

PART 2509—INTERPRETIVE 

BULLETINS RELATING TO THE 

EMPLOYEE RETIREMENT INCOME 

SECURITY ACT OF 1974 

■ 1. The authority citation for part 2509 

is revised to read as follows: 

Authority: 29 U.S.C. 1135. Secretary of 

Labor’s Order 1–2003, 68 FR 5374 (Feb. 3, 

2003). Sections 2509.75–10 and 2509.75–2 

issued under 29 U.S.C. 1052, 1053, 1054. Sec. 

2509.75–5 also issued under 29 U.S.C. 1002. 

Sec. 2509.95–1 also issued under sec. 625, 

Pub. L. 109–280, 120 Stat. 780. 

■ 2. Section 2509.95–1 is amended by 

revising the section heading and 

paragraph (a) to read as follows: 

§ 2509.95–1 Interpretive bulletin relating to 

the fiduciary standards under ERISA when 

selecting an annuity provider for a defined 

benefit pension plan. 

(a) Scope. This Interpretive Bulletin 

provides guidance concerning certain 

fiduciary standards under part 4 of title 

I of the Employee Retirement Income 

Security Act of 1974 (ERISA), 29 U.S.C. 

1104–1114, applicable to the selection 

of an annuity provider for the purpose 

of benefit distributions from a defined 

benefit pension plan (hereafter ‘‘pension 

plan’’) when the pension plan intends to 

transfer liability for benefits to an 

annuity provider. For guidance 

applicable to the selection of an annuity 

provider for benefit distributions from 

an individual account plan see 29 CFR 

2550.404a–4. 

* * * * * 

Signed at Washington, DC, this 29th day of 

September, 2008. 

Bradford P. Campbell, 

Assistant Secretary, Employee Benefits 

Security Administration, Department of 

Labor. 

[FR Doc. E8–23433 Filed 10–6–08; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

29 CFR Part 2550 

RIN 1210–AB19 

Selection of Annuity Providers—Safe 

Harbor for Individual Account Plans 

AGENCY: Employee Benefits Security 

Administration, Department of Labor. 

ACTION: Final rule. 

SUMMARY: This document contains a 

final regulation that establishes a safe 

harbor for the selection of annuity 

providers for the purpose of benefit 

distributions from individual account 

plans covered by title I of the Employee 

Retirement Income Security Act 

(ERISA). This regulation will affect plan 

sponsors and fiduciaries of individual 

account plans and the participants and 

beneficiaries covered by such plans. 

Also appearing in today’s Federal 

Register is a final rule amending 

Interpretive Bulletin 95–1 to limit the 

application of the Bulletin to the 

selection of annuity providers for 

defined benefit plans. 

DATES: This final rule is effective on 

December 8, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Janet A. Walters or Allison E. Wielobob, 

Office of Regulations and 

Interpretations, Employee Benefits 

Security Administration, U.S. 

Department of Labor, Washington, DC 

20210, (202) 693–8510. This is not a 

toll-free number. 

SUPPLEMENTARY INFORMATION: 

A. Background 

On September 12, 2007, the 

Department published an interim final 

regulation (72 FR 52004) limiting the 

scope of Interpretive Bulletin 95–1, 

relating to the selection of annuity 

providers, to defined benefit plans, as 

directed by section 625 of the Pension 

Protection Act of 2006 (the PPA) (Pub. 

L. 109–280, 120 Stat. 780). On the same 

date, the Department published a 

proposed rule (72 FR 52021) that would 

establish a safe harbor for the selection 

of annuity providers for individual 

account plans. The Department received 

10 comment letters in response to its 

request for comments. Set forth below is 

an overview of the final rule and the 

public comments submitted on the 

proposed rule. A final rule amending 

Interpretive Bulletin 95–1 also appears 

in today’s Federal Register. 

B. Overview of Final Rule and 

Comments 

As discussed below, the substance of 

the final rule is very similar to the 

Department’s proposed rule. The 

Department, however, has made 

changes to the proposed rule that clarify 

and simplify the safe harbor conditions, 

consistent with the suggestions of the 

commenters. 

Scope of the Final Rule 

Although restructured to simplify and 

clarify the rule, paragraph (a)(1) of 

§ 2550.404a–4 of the final rule, like the 

proposed rule, describes the scope of 

the regulation. As described in 

paragraph (a)(1) of the final rule, the 

regulation establishes a safe harbor for 

satisfying the fiduciary duties under 

section 404(a)(1)(B) of ERISA in 

selecting an annuity provider and 

contract for benefit distributions from 

an individual account plan. Paragraph 

(a)(1) also includes a reference to 

§ 2509.95–1 for guidance concerning the 

selection of annuity providers for 

defined benefit plans. 

Several commenters expressed 

concerns about a safe harbor structure. 

Some suggested that a safe harbor is 

inconsistent with the prudent person 

standard and that the prudent person 

standard alone would more effectively 

reduce impediments to annuities as a 


jlentini on PROD1PC65 with RULES