H.R. 6757 — what changed

added Section 404 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1104) is amended by adding at the end the following:

added “(e) Safe harbor for annuity selection

added “(1) In general—With respect to the selection of an insurer for a guaranteed retirement income contract, the requirements of subsection (a)(1)(B) will be deemed to be satisfied if a fiduciary—

added “(A) engages in an objective, thorough, and analytical search for the purpose of identifying insurers from which to purchase such contracts;

added “(B) with respect to each insurer identified under subparagraph (A)—

added “(i) considers the financial capability of such insurer to satisfy its obligations under the guaranteed retirement income contract; and

added “(ii) considers the cost (including fees and commissions) of the guaranteed retirement income contract offered by the insurer in relation to the benefits and product features of the contract and administrative services to be provided under such contract; and

added “(C) on the basis of such consideration, concludes that—

added “(i) at the time of the selection, the insurer is financially capable of satisfying its obligations under the guaranteed retirement income contract; and

added “(ii) the relative cost of the selected guaranteed retirement income contract as described in subparagraph (B)(ii) is reasonable.

added “(2) Financial capability of the insurer—A fiduciary will be deemed to satisfy the requirements of paragraphs (1)(B)(i) and (1)(C)(i) if—

added “(A) the fiduciary obtains written representations from the insurer that—

added “(i) the insurer is licensed to offer guaranteed retirement income contracts;

added “(ii) the insurer, at the time of selection and for each of the immediately preceding 7 plan years—

added “(I) operates under a certificate of authority from the insurance commissioner of its domiciliary State which has not been revoked or suspended;

added “(II) has filed audited financial statements in accordance with the laws of its domiciliary State under applicable statutory accounting principles;

added “(III) maintains (and has maintained) reserves which satisfies all the statutory requirements of all States where the insurer does business; and

added “(IV) is not operating under an order of supervision, rehabilitation, or liquidation;

added “(iii) the insurer undergoes, at least every 5 years, a financial examination (within the meaning of the law of its domiciliary State) by the insurance commissioner of the domiciliary State (or representative, designee, or other party approved by such commissioner); and

added “(iv) the insurer will notify the fiduciary of any change in circumstances occurring after the provision of the representations in clauses (i), (ii), and (iii) which would preclude the insurer from making such representations at the time of issuance of the guaranteed retirement income contract; and

added “(B) after receiving such representations and as of the time of selection, the fiduciary has not received any notice described in subparagraph (A)(iv) and is in possession of no other information which would cause the fiduciary to question the representations provided.

added “(3) No requirement to select lowest cost—Nothing in this subsection shall be construed to require a fiduciary to select the lowest cost contract. A fiduciary may consider the value of a contract, including features and benefits of the contract and attributes of the insurer (including, without limitation, the insurer's financial strength) in conjunction with the cost of the contract.

added “(4) Time of selection

added “(A) In general—For purposes of this subsection, the time of selection is—

added “(i) the time that the insurer and the contract are selected for distribution of benefits to a specific participant or beneficiary; or

added “(ii) if the fiduciary periodically reviews the continuing appropriateness of the conclusion described in paragraph (1)(C) with respect to a selected insurer, taking into account the considerations described in such paragraph, the time that the insurer and the contract are selected to provide benefits at future dates to participants or beneficiaries under the plan.

added “(B) Periodic review—A fiduciary will be deemed to have conducted the periodic review described in subparagraph (A)(ii) if the fiduciary obtains the written representations described in clauses (i), (ii), and (iii) of paragraph (2)(A) from the insurer on an annual basis, unless the fiduciary receives any notice described in paragraph (2)(A)(iv) or otherwise becomes aware of facts that would cause the fiduciary to question such representations.

added “(5) Limited liability—A fiduciary which satisfies the requirements of this subsection shall not be liable following the distribution of any benefit, or the investment by or on behalf of a participant or beneficiary pursuant to the selected guaranteed retirement income contract, for any losses that may result to the participant or beneficiary due to an insurer’s inability to satisfy its financial obligations under the terms of such contract.

added “(6) Definitions—For purposes of this subsection—

added “(A) Insurer—The term insurer means an insurance company, insurance service, or insurance organization, including affiliates of such companies.

added “(B) Guaranteed retirement income contract—The term guaranteed retirement income contract means an annuity contract for a fixed term or a contract (or provision or feature thereof) which provides guaranteed benefits annually (or more frequently) for at least the remainder of the life of the participant or the joint lives of the participant and the participant’s designated beneficiary as part of an individual account plan.”

“(8) Treatment of certain expenses associated with registered apprenticeship programs—Any reference in this subsection to the term “qualified higher education expense” shall include a reference to expenses for fees, books, supplies, and equipment required for the participation of a designated beneficiary in an apprenticeship program registered and certified with the Secretary of Labor under section 1 of the National Apprenticeship Act (29 U.S.C. 50).”

“(A) expenses for tuition in connection with enrollment or attendance of a designated beneficiary at an elementary or secondary public, private, or religious school, and

“(B) expenses, with respect to a designated beneficiary, for—

“(i) curriculum and curricular materials,

“(ii) books or other instructional materials,

“(iii) online educational materials,

“(iv) tuition for tutoring or educational classes outside of the home (but only if the tutor or class instructor is not related (within the meaning of section 152(d)(2)) to the student),

“(v) dual enrollment in an institution of higher education, and

“(vi) educational therapies for students with disabilities,”

“(9) Treatment of qualified education loan repayments

“(A) In general—Any reference in this subsection to the term “qualified higher education expense” shall include a reference to amounts paid as principal or interest on any qualified education loan (as defined in section 221(d)) of the designated beneficiary or a sibling of the designated beneficiary.

“(B) Limitation—The amount of distributions treated as a qualified higher education expense under this paragraph with respect to the loans of any individual shall not exceed $10,000 (reduced by the amount of distributions so treated for all prior taxable years).

“(C) Special rules for siblings of the designated beneficiary

“(i) Separate accounting—For purposes of subparagraph (B) and subsection (d), amounts treated as a qualified higher education expense with respect to the loans of a sibling of the designated beneficiary shall be taken into account with respect to such sibling and not with respect to such designated beneficiary.

“(ii) Sibling defined—For purposes of this paragraph, the term “sibling” means an individual who bears a relationship to the designated beneficiary which is described in section 152(d)(2)(B).”

“(A) expenses described in section 530(b)(3)(A)(i) in connection with enrollment or attendance of a designated beneficiary at an elementary or secondary public, private, or religious school, and”

added “(6) Treatment of unborn children

added “(A) In general—Nothing shall prevent an unborn child from being treated as a designated beneficiary or an individual under this section.

added “(B) Unborn child—For purposes of this paragraph—

added “(i) In general—The term “unborn child” means a child in utero.

added “(ii) Child in utero—The term “child in utero” means a member of the species homo sapiens, at any stage of development, who is carried in the womb.”