[Congressional Record Volume 148, Number 18 (Wednesday, February 27, 2002)]
[Senate]
[Pages S1253-S1258]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. GRASSLEY:
  S. 1971. A bill to amend the Internal Revenue Code of 1986 and the 
Employee Retirement Income Security Act of 1974 to protect the 
retirement security of American workers by ensuring that pension assets 
are adequately diversified and by providing workers with adequate 
access to, and information about, their pension plans, and for other 
purposes; to the Committee on Finance.
  Mr. GRASSLEY. Mr. President, there has been a flurry of activity 
surrounding the bankruptcy of the Enron Corporation. Part of the 
attention has focused on the company's questionable accounting 
practices and tax havens. Another spotlight has been focused on the 
Enron retirement plans, particularly its 401(k) plan.
  These are legitimate areas of inquiry. The same fact pattern in the 
case of Enron applies to Global Crossings, a company that was founded 
in 1997, went public in 1998, sold shares worth $734 million before the 
company collapsed just this year, pauperizing its workforce and 
investors. In both companies, executives were lining their pockets with 
gold while they were duping investors and pillaging workers' retirement 
plans. The difference between Enron and Global Crossing is merely one 
of scale. Enron was the seventh largest company on the Fortune 500. 
Global Crossings was smaller but there are eerie similarities, both 
between these two bankruptcies, and the effect they have had on the way 
we now view pension plan security.
  Any company bankruptcy will inevitably harm workers, retirees and 
investors. Some Enron employees, and some of those at Global Crossing, 
invested large amounts of their own money in company stock. In 
addition, both plans matched contributions made by the workers with 
the, now worthless, company stock. Had the company's financial 
statements correctly reflected the value of its stock, neither the 
workers, nor the investors would have purchased the shares. 
Unfortunately, the financial statements of those two companies were at 
least, highly misleading and very possibly fraudulent.
  The losses by retirement plan participants are of concern to the 
Senate Finance Committee because it is the Committee with jurisdiction 
over both the Internal Revenue Code, IRC, and parts of ERISA. The Code 
provides generous tax benefits to retirement plan sponsors. In return 
for those tax preferences, plans must be established and maintained in 
accordance with the rules set out in the Internal Revenue Code and in 
the Employee Retirement Income Security Act of 1974, as amended, ERISA.
  The losses in the plans sponsored by recently bankrupted companies 
have prompted us to reconsider some of the laws that govern retirement 
programs. In particular, many have questioned whether plan participants 
should be permitted to hold any company stock in their accounts, or 
only a limited amount of stock. Other questions have been raised about 
fiduciary obligations, so-called ``blackouts'' and about information 
provided to workers.
  For those in the business community who are alarmed about the large 
number of proposals, including mine, making changes to this area of the 
law, I would urge caution. This bill is not written in stone. Further 
refinements will be made to it. I am introducing it today because the 
Finance Committee will be holding a hearing on this issue tomorrow. 
Barely three weeks thereafter, Congress will be entering another recess 
period. If the introduction of this bill is delayed, interested parties 
will not have the time they need to examine this proposal and give me 
their views.
  This bill gives workers new diversification rights on holdings of 
company stock in their accounts. Some legislative proposals have called 
for caps on the amount of stock that can be dedicated by employers to 
workers' 401(k) accounts through matching contributions or through 
gains on the value of company stock. I believe such an approach will 
discourage employers from giving stock to workers through their plan 
and could not be administered except through the application of benefit 
wear-aways. During the cash balance pension plan debate, Congress found 
out just how unpopular benefit wear-aways are with plan participants.
  Some have also suggested that employees should not be permitted to 
purchase employer stock in their plans. They argue the need for a 
paternalistic government to save employees from the ``temptation'' of 
investing in employer stock in their 401(k) plans. I do not believe the 
government should treat workers like children. American workers are 
intelligent, and when armed with the right information, they will 
exercise foresight and make decisions for the best interest of 
themselves and their families.
  My approach does not discourage employer matching contributions in 
company stock. Nor would it restrict a worker choice to invest in 
company stock. However, once the worker has three years of service with 
the employer, he or she should be permitted to change investments out 
of the company stock and into any other investment offered by the plan. 
This change gives maximum flexibility to the worker and will prevent 
the long holding periods that some companies impose on matching 
contributions in their own stock.
  An important exception to this rule will apply to closely held 
corporations. Because of the difficulty of valuing stock in closely 
held corporations, under my bill, these rules will not apply to 
closely-held companies. This bill also provides that a pure, ``stand-
alone'' ESOP, one consisting solely of now-elective contributions is 
not subject to the new rule.
  The current draft of the bill does not include a long phase-in of the 
effective date for company stock currently allocated to workers 
retirement accounts. Such a delayed effective date has been proposed in 
other legislation. However, I am open to such a recommendation, if 
necessary. I encourage plan sponsors and practitioners to give me their 
thoughts on that issue.
  This legislation also provides new disclosure requirements. At the 
end of 2001, Enron stopped participants from trading their investments 
while they changed plan administrators. Its stock was declining in 
value at this time, and for a long period prior to the so-called 
``blackout''. It is no surprise that while the plan was closed to 
trading, all indications are that the value of the stock continued to 
decline. It appears that Enron employees did receive a notice prior to 
the transaction suspension period. But concerns have been raised that a 
statutory requirement for a notice will help to protect participants in 
other plans from missing an opportunity to change investments prior to 
a transaction suspension period. I am inclined to agree.
  Consequently, this bill will also impose a requirement that plans 
provide 30-days advance notice of transaction suspension periods, the 
so-called ``blackouts''. These are periods when participants are unable 
to change their investments. This change in law is needed so that 
employees have the opportunity to trade out of company stock, or for 
that matter, any other investment, before the beginning of a blackout 
period. The bill does not limit the duration of a transaction 
suspension period. Some companies to a remarkable job in shortening the 
time during which a plan is closed to transactions, however, 
practitioners have convinced me that it would be impractical to limit 
these transaction suspension periods given the number of variables 
involved in reconciling accounts.
  New disclosure requirements for so-called blackouts will be 
supplemented by better information regarding the value of plan 
benefits. I have long been concerned that participants need better 
information regarding their retirement. In the 105th Congress, I 
introduced a bill with Senator Breaux that would impose a requirement 
for periodic pension benefit statements.

[[Page S1254]]

  Language on periodic benefit statements was included again in a bill 
that Senator Baucus and I introduced early last year. While most of 
that bill was enacted as the Economic Growth and Revenue Reconciliation 
Act of 2001, EGTRRA, Public Law 107-16, the requirement for periodic 
benefit statements was ``Byrded out''. In other words, it was dropped 
from the bill because it was revenue neutral and as such did not meet 
the rules governing a reconciliation measure.
  Because we did not enact that provision in EGTRRA, the benefit 
statements language has been replicated here. Under this bill, 
participants will be entitled to a quarterly statement from their 
defined contribution plan, such as a section 401(k) plan. If the 
workers also have a defined benefit plan, they would be entitled to an 
estimated benefit statement once every three years.
  Included in the periodic benefit statements will be language designed 
to alert workers to how much employer stock they hold in their 
accounts. Also included will be information regarding the importance to 
long-term retirement security of participants of a well-balanced an 
diversified portfolio. This information will encourage workers to avoid 
over-concentration in employer securities and to periodically re-
balance their portfolio.
  Mr. President, I ask unanimous consent that the text of the bill and 
a technical explanation be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 1971

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``National Employee Savings 
     and Trust Equity Guarantee Act''.

            TITLE I--DIVERSIFICATION OF PENSION PLAN ASSETS

     SEC. 101. DEFINED CONTRIBUTION PLANS REQUIRED TO PROVIDE 
                   EMPLOYEES WITH FREEDOM TO INVEST THEIR PLAN 
                   ASSETS.

       (a) Amendments of Internal Revenue Code.--
       (1) Qualification requirement.--Section 401(a) of the 
     Internal Revenue Code of 1986 (relating to qualified pension, 
     profit-sharing, and stock bonus plans) is amended by 
     inserting after paragraph (34) the following new paragraph:
       ``(35) Diversification requirements for certain defined 
     contribution plans.--
       ``(A) In general.--A trust which is part of an applicable 
     defined contribution plan shall not be treated as a qualified 
     trust unless the plan--
       ``(i) provides that a participant or beneficiary of a 
     participant has the right at any time to invest any elective 
     deferrals (and earnings thereon) contributed to his or her 
     account in the form of publicly traded employer securities in 
     any other investment option offered under the plan,
       ``(ii) provides that a participant with 3 or more years of 
     service and any beneficiary of a participant has the right to 
     invest any publicly traded employer securities (and earnings 
     thereon) to which clause (i) does not apply and which are 
     allocated to his or her account in any other investment 
     option offered under the plan, and
       ``(iii) offers at least 3 investment options (not 
     inconsistent with regulations prescribed by the Secretary).
       ``(B) Certain restrictions and conditions not allowed.--A 
     plan shall not meet the requirements of subparagraph (A) if 
     the plan imposes restrictions or conditions on the investment 
     of publicly traded employer securities which are not imposed 
     on the investment of other assets of the plan. This 
     subparagraph shall not apply to any restrictions or 
     conditions imposed by reason of application of securities 
     laws.
       ``(C) Applicable defined contribution plan.--For purposes 
     of this paragraph--
       ``(i) In general.--The term `applicable defined 
     contribution plan' means any defined contribution plan which 
     holds any publicly traded employer securities.
       ``(ii) Exception for certain esops.--Such term does not 
     include an employee stock ownership plan (within the meaning 
     of section 4975(e)(7)) if--

       ``(I) there are no contributions to such plan (or earnings 
     thereunder) which are held within such plan and are subject 
     to subsections (k)(3) or (m)(2), and
       ``(II) such plan is a separate plan (within the meaning of 
     section 414(l)) with respect to any other defined benefit 
     plan or defined contribution plan maintained by the same 
     employer or employers.

       ``(D) Other definitions.--For purposes of this paragraph--
       ``(i) Publicly traded employer securities.--The term 
     `publicly traded employer securities' means employer 
     securities which are readily tradable on an established 
     securities market.
       ``(ii) Employer securities.--The term `employer securities' 
     has the meaning given such term by section 407(d)(1) of the 
     Employee Retirement Income Security Act of 1974.
       ``(iii) Year of service.--The term `year of service' has 
     the meaning given such term by section 411(a)(5).''
       (2) Conforming amendment.--Section 401(a)(28)(B) of such 
     Code (relating to additional requirements relating to 
     employee stock ownership plans) is amended by adding at the 
     end the following new clause:
       ``(v) Exception.--This paragraph shall not apply to an 
     applicable defined contribution plan (as defined in paragraph 
     (35)(C)).''
       (b) Amendment of ERISA.--Section 204 of the Employee 
     Retirement Income Security Act of 1974 (29 U.S.C. 1054) is 
     amended by redesignating subsection (j) as subsection (k) and 
     by adding at the end the following new subsection:
       ``(j)(1) An applicable individual account plan shall 
     provide that--
       ``(A) a participant or beneficiary of a participant has the 
     right at any time to invest any elective deferrals (and 
     earnings thereon) contributed to his or her account in the 
     form of publicly traded employer securities in any other 
     investment option offered under the plan,
       ``(B) a participant with 3 or more years of service and any 
     beneficiary of a participant has the right to invest any 
     publicly traded employer securities (and earnings thereon) to 
     which subparagraph (A) does not apply and which are allocated 
     to his or her account in any other investment option offered 
     under the plan, and
       ``(C) offers at least 3 investment options (not 
     inconsistent with regulations prescribed by the Secretary).
       ``(2) A plan shall not meet the requirements of paragraph 
     (1) if the plan imposes restrictions or conditions on the 
     investment of publicly traded employer securities which are 
     not imposed on the investment of other assets of the plan.
       ``(3)(A) For purposes of this subsection, the term 
     `applicable individual account plan' means any individual 
     account plan which holds any publicly traded employer 
     securities.
       ``(B) Such term does not include an employee stock 
     ownership plan (within the meaning of section 4975(e)(7) of 
     the Internal Revenue Code of 1986) if--
       ``(i) there are no contributions to such plan (or earnings 
     thereunder) which are held within such plan and subject to 
     subsection (k)(3) or (m)(2) of section 401 of such Code, and
       ``(ii) such plan is a separate plan (within the meaning of 
     section 414(l) of such Code) with respect to any other 
     defined benefit plan or defined contribution plan maintained 
     by the same employer or employers.
       ``(4) For purposes of this subsection--
       ``(A) the term `publicly traded employer securities' means 
     employer securities which are readily tradable on an 
     established securities market,
       ``(B) the term `employer security' has the meaning given 
     such term by section 407(d)(1), and
       ``(C) the term `year of service' has the meaning given such 
     term by section 203(b)(2).''
       (c) Effective Dates.--
       (1) In general.--The amendments made by this section shall 
     apply to plan years beginning on or after January 1, 2003.
       (2) Special rule for collectively bargained agreements.--In 
     the case of a plan maintained pursuant to 1 or more 
     collective bargaining agreements between employee 
     representatives and 1 or more employers ratified on or before 
     the date of the enactment of this Act, subsection (a) shall 
     be applied to benefits pursuant to, and individuals covered 
     by, any such agreement by substituting for ``January 1, 
     2003'' the earlier of--
       (A) the later of--
       (i) January 1, 2004, or
       (ii) the date on which the last of such collective 
     bargaining agreements terminates (determined without regard 
     to any extension thereof after such date of enactment), or
       (B) January 1, 2005.

   TITLE II--PROTECTION OF EMPLOYEES DURING PENSION PLAN TRANSACTION 
                           SUSPENSION PERIOD

     SEC. 201. PROTECTION OF PARTICIPANTS OR BENEFICIARIES FROM 
                   SUSPENSION OF ABILITY TO DIVERSIFY PLAN ASSETS.

       (a) Notice Requirements.--
       (1) Excise tax.--
       (A) In general.--Chapter 43 of the Internal Revenue Code of 
     1986 (relating to qualified pension, etc., plans) is amended 
     by adding at the end the following new section:

     ``SEC. 4980G. FAILURE OF APPLICABLE PLANS TO PROVIDE NOTICE 
                   OF TRANSACTION SUSPENSION PERIOD.

       ``(a) Imposition of Tax.--There is hereby imposed a tax on 
     the failure of any applicable defined contribution plan to 
     meet the requirements of subsection (e) with respect to any 
     participant or beneficiary.
       ``(b) Amount of Tax.--
       ``(1) In general.--The amount of the tax imposed by 
     subsection (a) on any failure with respect to any participant 
     or beneficiary shall be $100 for each day in the 
     noncompliance period with respect to the failure.
       ``(2) Noncompliance period.--For purposes of this section, 
     the term `noncompliance period' means, with respect to any 
     failure, the

[[Page S1255]]

     period beginning on the date the failure first occurs and 
     ending on the date the notice to which the failure relates is 
     provided or the failure is otherwise corrected.
       ``(c) Limitations on Amount of Tax.--
       ``(1) Tax not to apply where failure not discovered and 
     reasonable diligence exercised.--No tax shall be imposed by 
     subsection (a) on any failure during any period for which it 
     is established to the satisfaction of the Secretary that any 
     person subject to liability for tax under subsection (d) did 
     not know that the failure existed and exercised reasonable 
     diligence to meet the requirements of subsection (e).
       ``(2) Tax not to apply to failures corrected as soon as 
     reasonably practicable.--No tax shall be imposed by 
     subsection (a) on any failure if--
       ``(A) any person subject to liability for the tax under 
     subsection (d) exercised reasonable diligence to meet the 
     requirements of subsection (e), and
       ``(B) such person provides the notice described in 
     subsection (e) as soon as reasonably practicable after the 
     first date such person knew, or exercising reasonable 
     diligence should have known, that such failure existed.
       ``(3) Overall limitation for unintentional failures.--
       ``(A) In general.--If the person subject to liability for 
     tax under subsection (d) exercised reasonable diligence to 
     meet the requirements of subsection (e), the tax imposed by 
     subsection (a) for failures during the taxable year of the 
     employer (or, in the case of a multiemployer plan, the 
     taxable year of the trust forming part of the plan) shall not 
     exceed $500,000. For purposes of the preceding sentence, all 
     multiemployer plans of which the same trust forms a part 
     shall be treated as 1 plan.
       ``(B) Taxable years in the case of certain controlled 
     groups.--For purposes of this paragraph, if all persons who 
     are treated as a single employer for purposes of this section 
     do not have the same taxable year, the taxable years taken 
     into account shall be determined under principles similar to 
     the principles of section 1561.
       ``(4) Waiver by secretary.--In the case of a failure which 
     is due to reasonable cause and not to willful neglect, the 
     Secretary may waive part or all of the tax imposed by 
     subsection (a) to the extent that the payment of such tax 
     would be excessive or otherwise inequitable relative to the 
     failure involved.
       ``(d) Liability for Tax.--The following shall be liable for 
     the tax imposed by subsection (a):
       ``(1) In the case of a plan other than a multiemployer 
     plan, the employer.
       ``(2) In the case of a multiemployer plan, the plan.
       ``(e) Notice of Transaction Suspension Period.--
       ``(1) In general.--The plan administrator of an applicable 
     defined contribution plan shall provide notice of any 
     transaction suspension period to each participant or 
     beneficiary to whom the transaction suspension period applies 
     (and to any employee organization representing such 
     participants).
       ``(2) Notice.--The notice required by paragraph (1) shall 
     be written in a manner calculated to be understood by the 
     average plan participant and shall provide sufficient 
     information (as determined in accordance with rules or other 
     guidance adopted by the Secretary) to allow applicable 
     individuals to understand the timing and effect of such 
     transaction suspension period.
       ``(3) Timing of notice.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     the notice required by paragraph (1) shall be provided not 
     later than 30 days before the beginning of the transaction 
     suspension period.
       ``(B) Exceptions to 30-day notice.--
       ``(i) Unplanned events.--In the case of any transaction 
     suspension period which is imposed by reason of an event 
     outside of the control of a plan sponsor or administrator, 
     subparagraph (A) shall not apply and the notice shall be 
     furnished as soon as reasonably possible under the 
     circumstances.
       ``(ii) Acquisitions, etc.--In the case of any transaction 
     suspension period--

       ``(I) in connection with an acquisition or disposition to 
     which section 410(b)(6)(C) applies, or
       ``(II) due to such other circumstances specified by the 
     Secretary,

     the Secretary may provide that subparagraph (A) shall not 
     apply and the notice shall be furnished at such time as the 
     Secretary specifies.
       ``(4) Form and manner of notice.--The notice required by 
     paragraph (1) shall be in writing, except that such notice 
     may be in electronic or other form to the extent that such 
     form is reasonably accessible to the applicable individual.
       ``(f ) Definitions and Special Rules.--For purposes of this 
     section--
       ``(1) Applicable defined contribution plan.--The term 
     `applicable defined contribution plan' means a defined 
     contribution plan which--
       ``(A) is a qualified retirement plan (as defined in section 
     4974(c)), and
       ``(B) permits a participant or beneficiary to exercise 
     control over assets in his or her account.
       ``(2) Transaction suspension period.--
       ``(A) In general.--The term `transaction suspension period' 
     means a temporary or indefinite period of 2 or more 
     consecutive business days during which there is a substantial 
     reduction (other than by reason of application of securities 
     laws) in the rights of 1 or more participants or 
     beneficiaries to direct investments in a defined contribution 
     plan.
       ``(B) Business day.--For purposes of this paragraph, a day 
     shall not be treated as a business day to the extent that 1 
     or more established securities markets for trading securities 
     are not open.''
       (B) Clerical amendment.--The table of sections for chapter 
     43 of such Code is amended by adding at the end the following 
     new item:

``Sec. 4980G. Failure of applicable plans to provide notice of 
              transaction suspension period.''
       (2) Amendments of erisa.--
       (A) In general.--Section 101 of the Employee Retirement 
     Income Security Act of 1974 (29 U.S.C. 11021) is amended by 
     redesignating the second subsection (h) as subsection (j) and 
     by inserting after the first subsection (h) the following new 
     subsection:
       ``(i)(1) The plan administrator of an individual account 
     plan which permits a participant or beneficiary to exercise 
     control over assets in his or her account applies shall 
     provide notice of any transaction suspension period to each 
     participant or beneficiary to whom the transaction suspension 
     period applies (and to any employee organization representing 
     such participants).
       ``(2) The notice required by paragraph (1) shall be written 
     in a manner calculated to be understood by the average plan 
     participant and shall provide sufficient information (as 
     determined in accordance with rules or other guidance adopted 
     by the Secretary of the Treasury) to allow applicable 
     individuals to understand the timing and effect of such 
     transaction suspension period.
       ``(3)(A) Except as provided in subparagraph (B), the notice 
     required by paragraph (1) shall be provided not later than 30 
     days before the beginning of the transaction suspension 
     period.
       ``(B)(i) In the case of any transaction suspension period 
     which is imposed outside of the control of a plan sponsor or 
     administrator, subparagraph (A) shall not apply and the 
     notice shall be furnished as soon as reasonably possible 
     under the circumstances.
       ``(ii) In the case of any transaction suspension period--
       ``(I) in connection with an acquisition or disposition to 
     which section 410(b)(6)(C) of the Internal Revenue Code of 
     1986 applies, or
       ``(II) due to such other circumstances specified by the 
     Secretary of the Treasury,
     the Secretary of the Treasury may provide that subparagraph 
     (A) shall not apply and the notice shall be furnished at such 
     time as the Secretary specifies.
       ``(4) The notice required by paragraph (1) shall be in 
     writing, except that such notice may be in electronic or 
     other form to the extent that such form is reasonably 
     accessible to the applicable individual.
       ``(5)(A) For purposes of this subparagraph, the term 
     `transaction suspension period' means a temporary or 
     indefinite period of 2 or more consecutive business days 
     during which there is a substantial reduction (other than by 
     reason of application of securities laws) in the rights of 1 
     or more participants or beneficiaries to direct investments 
     in an individual account plan.
       ``(B) For purposes of this paragraph, a day shall not be 
     treated as a business day to the extent that 1 or more 
     established securities markets for trading securities are not 
     open.''
       (B) Civil penalties for failure to provide notice.--Section 
     502 of such Act is amended--
       (i) in subsection (a)(6), by striking ``or (6)'' and 
     inserting ``(6), or (7)'';
       (ii) by redesignating paragraph (7) of subsection (c) as 
     paragraph (8); and
       (iii) by inserting after paragraph (6) of subsection (c) 
     the following new paragraph:
       ``(7) The Secretary may assess a civil penalty against any 
     person of up to $100 a day from the date of the person's 
     failure or refusal to provide notice to participants and 
     beneficiaries in accordance with section 101(i). For purposes 
     of this paragraph, each violation with respect to any single 
     participant or beneficiary, shall be treated as a separate 
     violation.''
       (b) Inapplicability of Relief From Fiduciary Liability 
     During Suspension of Ability of Participant or Beneficiary To 
     Direct Investments.--Section 404(c)(1) of such Act (29 U.S.C. 
     1104(c)(1)) is amended--
       (1) in subparagraph (B), by inserting before the period the 
     following: ``, except that this subparagraph shall not apply 
     for any period during which the ability of a participant or 
     beneficiary to direct the investment of assets in his or her 
     individual account is suspended by a plan sponsor or 
     fiduciary''; and
       (2) by adding at the end the following:
     ``Any limitation or restriction that may govern the frequency 
     of transfers between investment vehicles shall not be treated 
     as a suspension referred to in subparagraph (B) to the extent 
     such limitation or restriction is disclosed to participants 
     or beneficiaries through the summary plan description or 
     materials describing specific investment alternatives under 
     the plan.''
     ``(c) Safe Harbor Guidance.--The Secretary of Labor, in 
     consultation with the Secretary of Treasury, shall, prior to 
     December 31, 2002, issue final regulations providing clear 
     guidance, including safe harbors, on how plan sponsors or any 
     other affected fiduciaries can satisfy their fiduciary 
     responsibilities during any period which the ability of a 
     participant or beneficiary to direct the investment of assets 
     in his or her individual account is suspended.''

[[Page S1256]]

       (d) Effective Date.--
       (1) In general.--The amendments made by this section shall 
     apply to plan years beginning after December 31, 2002.
       (2) Exceptions to 30-day notice.--The Secretary of the 
     Treasury shall, no later than 120 days after the date of the 
     enactment of this Act, specify the circumstances under 
     section 4980G(e)(3)(B)(ii) of the Internal Revenue Code of 
     1986 under which the 30-day notice rule would not apply and 
     the time by which the notice is required to be provided.

     SEC. 202. CERTAIN SALES AND PURCHASES OF COMPANY STOCK BY 
                   CORPORATE INSIDERS TO BE SUBJECT TO EXCISE TAX 
                   ON GOLDEN PARACHUTE PAYMENTS.

       (a) In General.--Section 4999 of the Internal Revenue Code 
     of 1986 (relating to golden parachute payments) is amended by 
     redesignating subsection (c) as subsection (d) and by 
     inserting after subsection (b) the following new subsection:
       ``(c) Certain Sales of Company Stock by Corporate 
     Insiders.--
       ``(1) Treatment as excess parachute payment.--
       ``(A) In general.--For purposes of this section, if there 
     is a sale or exchange, or purchase, of stock in a corporation 
     by a corporate insider during any period in which a 
     transaction suspension period affecting the ability of 
     participants and beneficiaries to invest stock in such 
     corporation is in effect with respect to a defined 
     contribution plan--
       ``(i) to which section 401(a) (28) or (35) applies, and
       ``(ii) which is maintained by such corporation (or any 
     other entity consolidated with such corporation for purposes 
     of reporting to the Securities and Exchange Commission),
     any amount realized by the corporate insider on such sale or 
     exchange (or the purchase price in the case of a purchase) 
     shall be treated as an excess parachute payment.
       ``(B) Limitation.--Subparagraph (A) shall only apply to 
     stock acquired by an individual by reason of the individual's 
     employment with the corporation or by reason of any other 
     relationship with the corporation that makes the individual a 
     corporate insider.
       ``(2) Application to other instruments.--For purposes of 
     paragraph (1)--
       ``(A) any sale or exchange, or purchase, of an option, 
     warrant, or other derivative of stock in a corporation,
       ``(B) any transaction involving the exercise of an option, 
     warrant, or other derivative of stock in a corporation, or
       ``(C) any similar transaction,
     shall be treated in the same manner as a transaction 
     involving the sale or exchange, or purchase, of stock.
       ``(3) Corporate insider.--For purposes of this subsection, 
     the term `corporate insider' means, with respect to a 
     corporation, any individual who is subject to the 
     requirements of section 16(a) of the Securities Exchange Act 
     of 1934 with respect to such corporation.
       ``(4) Transaction suspension period.--The term `transaction 
     suspension period' has the meaning given such term by section 
     4980G(f)(2).''
       (b) Effective Date.--The amendments made by this section 
     shall apply to sales and exchanges after the 120th day after 
     the date of the enactment of this Act.

       TITLE III--PROVIDING OF INFORMATION TO ASSIST PARTICIPANTS

     SEC. 301. PERIODIC PENSION BENEFITS STATEMENTS.

       (a) Excise Tax.--
       (1) In general.--Chapter 43 of the Internal Revenue Code of 
     1986 (relating to qualified pension, etc., plans), as amended 
     by this Act, is amended by adding at the end the following 
     new section:

     ``SEC. 4980H. FAILURE OF CERTAIN DEFINED CONTRIBUTION PLANS 
                   TO PROVIDE REQUIRED QUARTERLY STATEMENTS.

       ``(a) Imposition of Tax.--There is hereby imposed a tax on 
     the failure of an applicable defined contribution plan to 
     meet the requirements of subsection (e) with respect to any 
     participant or beneficiary.
       ``(b) Amount of Tax.--
       ``(1) In general.--The amount of the tax imposed by 
     subsection (a) on any failure with respect to any participant 
     or beneficiary shall be $100 for each day in the 
     noncompliance period with respect to the failure.
       ``(2) Noncompliance period.--For purposes of this section, 
     the term `noncompliance period' means, with respect to any 
     failure, the period beginning on the date the failure first 
     occurs and ending on the date the statement to which the 
     failure relates is provided or the failure is otherwise 
     corrected.
       ``(c) Limitations on Amount of Tax.--
       ``(1) Tax not to apply where failure not discovered and 
     reasonable diligence exercised.--No tax shall be imposed by 
     subsection (a) on any failure during any period for which it 
     is established to the satisfaction of the Secretary that any 
     person subject to liability for tax under subsection (d) did 
     not know that the failure existed and exercised reasonable 
     diligence to meet the requirements of subsection (e).
       ``(2) Tax not to apply to failures corrected within 30 
     days.--No tax shall be imposed by subsection (a) on any 
     failure if--
       ``(A) any person subject to liability for the tax under 
     subsection (d) exercised reasonable diligence to meet the 
     requirements of subsection (e), and
       ``(B) such person provides the statement described in 
     subsection (e) during the 30-day period beginning on the 
     first date such person knew, or exercising reasonable 
     diligence should have known, that such failure existed.
       ``(3) Overall limitation for unintentional failures.--
       ``(A) In general.--If the person subject to liability for 
     tax under subsection (d) exercised reasonable diligence to 
     meet the requirements of subsection (e), the tax imposed by 
     subsection (a) for failures during the taxable year of the 
     employer (or, in the case of a multiemployer plan, the 
     taxable year of the trust forming part of the plan) shall not 
     exceed $500,000. For purposes of the preceding sentence, all 
     multiemployer plans of which the same trust forms a part 
     shall be treated as 1 plan.
       ``(B) Taxable years in the case of certain controlled 
     groups.--For purposes of this paragraph, if all persons who 
     are treated as a single employer for purposes of this section 
     do not have the same taxable year, the taxable years taken 
     into account shall be determined under principles similar to 
     the principles of section 1561.
       ``(4) Waiver by secretary.--In the case of a failure which 
     is due to reasonable cause and not to willful neglect, the 
     Secretary may waive part or all of the tax imposed by 
     subsection (a) to the extent that the payment of such tax 
     would be excessive or otherwise inequitable relative to the 
     failure involved.
       ``(d) Liability for Tax.--The following shall be liable for 
     the tax imposed by subsection (a):
       ``(1) In the case of a plan other than a multiemployer 
     plan, the employer.
       ``(2) In the case of a multiemployer plan, the plan.
       ``(e) Requirement To Provide Quarterly Statements.--
       ``(1) In general.--The administrator of an applicable 
     defined contribution plan shall furnish a pension benefit 
     statement--
       ``(A) to a plan participant at least once each calendar 
     quarter, and
       ``(B) to a plan beneficiary upon written request but no 
     more frequently than once during any 12-month period.
       ``(2) Statement.--
       ``(A) In general.--A pension benefit statement under 
     paragraph (1) shall indicate, on the basis of the latest 
     available information--
       ``(i) the total benefits accrued, and
       ``(ii) the nonforfeitable pension benefits, if any, which 
     have accrued, or the earliest date on which benefits will 
     become nonforfeitable.
       ``(B) Specific information.--A pension benefit statement 
     under paragraph (1) shall include (together with the 
     information required in subparagraph (A))--
       ``(i) the value of any assets held in the form of employer 
     securities, without regard to whether such securities were 
     contributed by the plan sponsor or acquired at the direction 
     of the plan or of the participant or beneficiary, and an 
     explanation of any limitations or restrictions on the right 
     of the participant or beneficiary to direct an investment; 
     and
       ``(ii) an explanation of the importance, for the long-term 
     retirement security of participants and beneficiaries, of a 
     well-balanced and diversified investment portfolio, including 
     a discussion of the risk of holding substantial portions of a 
     portfolio in the security of any one entity, such as employer 
     securities.
       ``(3) Manner of statement.--A pension benefit statement 
     under paragraph (1)--
       ``(A) shall be written in a manner calculated to be 
     understood by the average plan participant, and
       ``(B) may be provided in written, electronic, or other 
     appropriate form.
       ``(f) Applicable Defined Contribution Plan.--For purposes 
     of this section, the term `applicable defined contribution 
     plan' means a defined contribution plan which--
       ``(1) is a qualified retirement plan (as defined in section 
     4974(c)), and
       ``(2) permits a participant or beneficiary to exercise 
     control over assets in his or her account.''
       (2) Clerical amendment.--The table of sections for chapter 
     43 of such Code is amended by adding at the end the following 
     new item:

``Sec. 4980H. Failure of certain defined contribution plans to provide 
              required quarterly statements.''

       (b) Amendments of ERISA.--
       (1) In general.--Section 105(a) of the Employee Retirement 
     Income Security Act of 1974 (29 U.S.C. 1025(a)) is amended to 
     read as follows:
       ``(a)(1)(A) The administrator of an individual account plan 
     shall furnish a pension benefit statement--
       ``(i) to a plan participant at least once annually (each 
     calendar quarter in the case of an applicable individual 
     account plan), and
       ``(ii) to a plan beneficiary upon written request.
       ``(B) The administrator of a defined benefit plan shall 
     furnish a pension benefit statement--
       ``(i) at least once every 3 years to each participant with 
     a nonforfeitable accrued benefit who is employed by the 
     employer maintaining the plan at the time the statement is 
     furnished to participants, and
       ``(ii) to a participant or beneficiary of the plan upon 
     written request.
     Information furnished under subparagraph (B) to a participant 
     (other than at the request of the participant) may be based 
     on reasonable estimates determined under regulations 
     prescribed by the Secretary.

[[Page S1257]]

       ``(2)(A) A pension benefit statement under paragraph (1)--
       ``(i) shall indicate, on the basis of the latest available 
     information--
       ``(I) the total benefits accrued, and
       ``(II) the nonforfeitable pension benefits, if any, which 
     have accrued, or the earliest date on which benefits will 
     become nonforfeitable,
       ``(ii) shall be written in a manner calculated to be 
     understood by the average plan participant, and
       ``(iii) may be provided in written, electronic, telephonic, 
     or other appropriate form.
       ``(B) In the case of an applicable individual account plan, 
     the pension benefit statement under paragraph (1) shall 
     include (together with the information required in 
     subparagraph (A))--
       ``(i) the value of any assets held in the form of employer 
     securities, without regard to whether such securities were 
     contributed by the plan sponsor or acquired at the direction 
     of the plan or of the participant or beneficiary, and an 
     explanation of any limitations or restrictions on the right 
     of the participant or beneficiary to direct an investment, 
     and
       ``(ii) an explanation of the importance, for the long-term 
     retirement security of participants and beneficiaries, of a 
     well-balanced and diversified investment portfolio, including 
     a discussion of the risk of holding substantial portions of a 
     portfolio in the security of any 1 entity, such as employer 
     securities.
       ``(C) For purposes of this subsection, the term `applicable 
     individual account plan' means an individual account plan to 
     which section 404(c) applies.
       ``(3)(A) In the case of a defined benefit plan, the 
     requirements of paragraph (1)(B)(i) shall be treated as met 
     with respect to a participant if the administrator provides 
     the participant at least once each year with notice of the 
     availability of the pension benefit statement and the ways in 
     which the participant may obtain such statement. Such notice 
     shall be provided in written, electronic, telephonic, or 
     other appropriate form, and may be included with other 
     communications to the participant if done in a manner 
     reasonably designed to attract the attention of the 
     participant.
       ``(B) The Secretary may provide that years in which no 
     employee or former employee benefits (within the meaning of 
     section 410(b) of the Internal Revenue Code of 1986) under 
     the plan need not be taken into account in determining the 3-
     year period under paragraph (1)(B)(i).''
       (c) Conforming Amendments.--
       (1) Section 105 of the Employee Retirement Income Security 
     Act of 1974 (29 U.S.C. 1025) is amended by striking 
     subsection (d).
       (2) Section 105(b) of such Act (29 U.S.C. 1025(b)) is 
     amended to read as follows:
       ``(b) In no case shall a participant or beneficiary of a 
     plan be entitled to more than 1 statement described in 
     subsection (a)(1) (A)(ii) or (B)(ii), whichever is 
     applicable, in any 12-month period.''
       (d) Model Statements.--The Secretary of Labor shall develop 
     1 or more model benefit statements, written in a manner 
     calculated to be understood by the average plan participant, 
     that may be used by plan administrators in complying with the 
     requirements of section 4980H of the Internal Revenue Code of 
     1986 and section 105 of the Employee Retirement Income 
     Security Act of 1974.
       (e) Effective Date.--The amendments made by this section 
     shall apply to plan years beginning after December 31, 2003.
                                  ____


                    Technical Explanation of S. 1971


                 Diversification of Pension Plan Assets

       The bill amends the Internal Revenue Code to require a 
     qualified defined contribution plan invested in publicly-
     traded employer securities to provide participants with the 
     right to diversify their investment in employer securities. A 
     participant must be provided with the immediate right to 
     reinvest elective deferrals that are invested in employer 
     securities. In addition, the participant must be provided 
     with the right to invest employer contributions that are 
     invested in employer securities once the participant has 3 or 
     more years of service.
       The participant must be permitted to reinvest employer 
     securities allocated to the participant's account in any 
     other investment option currently available to employees, and 
     the plan must provide at least 3 alternative investment 
     options. These diversification rights are also extended to 
     any beneficiary of a participant.
       A plan will fail to comply with this requirement if the 
     ability of participants to diversify their investment in 
     employer securities is restricted under the plan or in 
     practice. For example, a plan will not comply with this 
     requirement if it provides for diversification of investment 
     in employer securities, but also provides for a reduced 
     matching contribution for any participant who invests any 
     employer securities in another investment option. The bill 
     also amends ERISA by adding this diversification requirement 
     to section 204.
       These diversification requirements do not apply to an ESOP 
     that provides only for nonelective employer contributions and 
     is separate from any other qualified plan maintained by the 
     same employer. These ESOPs continue to be subject to the 
     diversification requirements in effect under section 
     401(a)(28) of the Code.


  protection of employees during pension plan transaction suspension 
                                periods

     Notice of transaction suspension periods
       The bill requires that participants and beneficiaries who 
     are permitted to direct the investment of their accounts in a 
     qualified defined contribution plan must be notified by the 
     plan administrator of any ``transaction suspension period'' 
     no later than 30 days before the transaction suspension 
     period begins.
       A transaction suspension period is any temporary or 
     indefinite period of 2 or more business days during which 
     there is a substantial reduction in the rights of participant 
     or beneficiaries to direct investments (other than by reason 
     of the application of securities laws). The notice must 
     provide sufficient information to allow affected participants 
     and beneficiaries to understand the timing and effect of the 
     transaction suspension period and must be written in a manner 
     calculated to be understood by the average plan participant.
       The notice may be provided in writing or through an 
     electronic or other form reasonably accessible to the 
     affected participants and beneficiaries. These requirements 
     are not violated if 30-days notice could not be provided 
     because of events outside of the control of the plan sponsor 
     or administrator, provided that notice is provided as soon as 
     is reasonably possible under the circumstances. This 
     exception to the 30-day requirement also applies, to the 
     extent permitted in guidance by the Secretary, in other 
     appropriate situations such as acquisitions or dispositions.
       The bill also imposes an excise tax of $100 a day on the 
     failure of a qualified defined contribution plan to provide 
     notice to a participant or beneficiary. The excise tax is 
     imposed on the employer or, in the case of a multiemployer 
     plan, on the plan. No excise tax is imposed during any period 
     during which any person subject to liability for the tax did 
     not know that the failure existed and exercised reasonable 
     diligence to meet the notice requirement.
       In addition, no excise tax is imposed to the extent that a 
     person subject to liability for the tax exercised reasonable 
     diligence and actually provided notice as soon as reasonably 
     practicable after the first date such person knew, or 
     exercising reasonable diligence should have known, that such 
     failure existed. For a person who exercised reasonable 
     diligence, the tax is limited to no more than $500,000 for 
     the failures during a taxable year. Finally, the Secretary 
     may waive all or part of any tax that would otherwise be 
     imposed to the extent that payment of the tax would be 
     excessive or otherwise inequitable.
     Inapplicability of relief from fiduciary liability during 
         transaction suspension period
       The provisions of ERISA that limit fiduciary liability 
     during periods when a participant or beneficiary exercises 
     control over assets in his account would be amended to 
     clarify that this limit does not apply during any transaction 
     suspension period.
     Trading in company stock by corporate insiders subject to 
         excise tax
       Under the bill, a corporate insider is subject to a 20% 
     excise tax on any acquisition, disposition, or similar 
     transaction involving any employer securities during any 
     transaction suspension period that affects investment in 
     employer securities with respect to which notice must be 
     provided to any plan participant or beneficiary.
       The excise tax is calculated based on the amount realized 
     by the insider in any sale or other disposition or the fair 
     market value of securities acquired by the insider during the 
     transaction suspension period. For this purpose, ``corporate 
     insiders'' are individuals subject to the requirements of 
     section 16(a) of the Securities Exchange Act of 1934 with 
     respect to the corporation.


            Providing of Information to Assist Participants

     Periodic pension benefit statements
       The bill amends ERISA to require the plan administrator of 
     a qualified defined contribution plan to provide participants 
     with benefit statements at least annually, except that 
     benefit statements must be provided at least quarterly to 
     participants who have the ability to direct the investment of 
     their account in the plan. These statements must provide 
     information on (i) the fair market value of assets in the 
     participant's account, (ii) the portion of the assets which 
     are nonforfeitable and the earliest date on which assets not 
     nonforfeitable become so, (iii) the percentage (if any) which 
     the fair market value of employer securities bears to the 
     fair market value of assets in the account, and (iv) a 
     reminder of the importance of having diversified investments 
     of assets in the plan and other plans of the employer in 
     which the individual is also a participant. In addition, 
     statements must be provided to plan beneficiaries at least 
     annually, if requested in writing.
       The bill also amends ERISA to require that the 
     administrator of a qualified defined benefit plan provide a 
     benefit statement at least every 3 years to a participant 
     with a nonforfeitable accrued benefit who is employed by the 
     employer maintaining the plan at the time the statement is 
     furnished. A statement is also required to be provided to any 
     participant or beneficiary upon written request.
       This benefit statement must provide information on the 
     total benefits accrued, the

[[Page S1258]]

     nonforfeitable pension benefits, if any, which have accrued, 
     or the earliest date on which benefits will become 
     nonforfeitable. The statement must be written in a manner 
     calculated to be understood by the average plan participant 
     and may be provided in writing or in electronic or other form 
     reasonably accessible by the participant.
       The information provided in a defined benefit plan 
     statement, other than a statement requested by a plan 
     participant, may be based on reasonable estimates. The 
     requirement to provide a defined benefit plan statement is 
     met if the plan notifies participants annually of the 
     availability of a statement and information on how the 
     participant can obtain a statement.
       The bill also imposes an excise tax of $100 a day during a 
     period of noncompliance with the requirement that quarterly 
     benefit statements be provided to participants who have the 
     right to direct investment of their account. The excise tax 
     is imposed on the employer or, in the case of a multiemployer 
     plan, on the plan. No excise tax is imposed during any period 
     during which any person subject to liability for the tax did 
     not know that the failure existed and exercised reasonable 
     diligence to meet the notice requirement.
       In addition, no excise tax is imposed to the extent that a 
     person subject to liability for the tax exercised reasonable 
     diligence and actually provided notice as soon as reasonably 
     practicable after the first date such person knew, or 
     exercising reasonable diligence should have known, that such 
     failure existed. For a person who exercised reasonable 
     diligence, the tax is limited to no more than $500,000 for 
     the failures during a taxable year. Finally, the Secretary 
     may waive all or part of any tax that would otherwise be 
     imposed to the extent that payment of the tax would be 
     excessive or otherwise inequitable.


                             Effective Date

       The provisions of the bill would be effective for plan 
     years beginning on or after January 1, 2003, except that the 
     provisions related to the provision of benefit statements 
     would be effective for plan years beginning after December 
     31, 2003. The bill provides a transition period for 
     compliance with the diversification requirements for plans 
     maintained pursuant to collective bargaining agreements.
                                 ______