29 U.S.C. § 1102 — Establishment of plan

Page 505 TITLE 29—LABOR § 1103 Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Pub. L. 104–188, title I, § 1460(b), Aug. 20, 1996, 110 Stat. 1822, provided that: ‘‘(1) IN GENERAL.—Except as provided in paragraph (2), the amendment made by this section [amending this section] shall take effect on January 1, 1975. ‘‘(2) CIVIL ACTIONS.—The amendment made by this section shall not apply to any civil action commenced before November 7, 1995.’’ EFFECTIVE DATE OF 1989 AMENDMENT Amendment by Pub. L. 101–239 effective, except as otherwise provided, as if included in the provision of the Tax Reform Act of 1986, Pub. L. 99–514, to which such amendment relates, see section 7891(f) of Pub. L. 101–239, set out as a note under section 1002 of this title. PLAN AMENDMENTS NOT REQUIRED UNTIL JANUARY 1, 1998 For provisions directing that if any amendments made by subtitle D [§§ 1401–1465] of title I of Pub. L. 104–188 require an amendment to any plan or annuity contract, such amendment shall not be required to be made before the first day of the first plan year begin- ning on or after Jan. 1, 1998, see section 1465 of Pub. L. 104–188, set out as a note under section 401 of Title 26, Internal Revenue Code. § 1102. Establishment of plan (a) Named fiduciaries (1) Every employee benefit plan shall be estab- lished and maintained pursuant to a written in- strument. Such instrument shall provide for one or more named fiduciaries who jointly or sever- ally shall have authority to control and manage the operation and administration of the plan. (2) For purposes of this subchapter, the term ‘‘named fiduciary’’ means a fiduciary who is named in the plan instrument, or who, pursuant to a procedure specified in the plan, is identified as a fiduciary (A) by a person who is an em- ployer or employee organization with respect to the plan or (B) by such an employer and such an employee organization acting jointly. (b) Requisite features of plan Every employee benefit plan shall— (1) provide a procedure for establishing and carrying out a funding policy and method con- sistent with the objectives of the plan and the requirements of this subchapter, (2) describe any procedure under the plan for the allocation of responsibilities for the oper- ation and administration of the plan (includ- ing any procedure described in section 1105(c)(1) of this title), (3) provide a procedure for amending such plan, and for identifying the persons who have authority to amend the plan, and (4) specify the basis on which payments are made to and from the plan. (c) Optional features of plan Any employee benefit plan may provide— (1) that any person or group of persons may serve in more than one fiduciary capacity with respect to the plan (including service both as trustee and administrator); (2) that a named fiduciary, or a fiduciary designated by a named fiduciary pursuant to a plan procedure described in section 1105(c)(1) of this title, may employ one or more persons to render advice with regard to any responsi- bility such fiduciary has under the plan; or (3) that a person who is a named fiduciary with respect to control or management of the assets of the plan may appoint an investment manager or managers to manage (including the power to acquire and dispose of) any assets of a plan. (Pub. L. 93–406, title I, § 402, Sept. 2, 1974, 88 Stat. 875.) § 1103. Establishment of trust (a) Benefit plan assets to be held in trust; author- ity of trustees Except as provided in subsection (b), all assets of an employee benefit plan shall be held in trust by one or more trustees. Such trustee or trustees shall be either named in the trust in- strument or in the plan instrument described in section 1102(a) of this title or appointed by a person who is a named fiduciary, and upon ac- ceptance of being named or appointed, the trust- ee or trustees shall have exclusive authority and discretion to manage and control the assets of the plan, except to the extent that— (1) the plan expressly provides that the trustee or trustees are subject to the direction of a named fiduciary who is not a trustee, in which case the trustees shall be subject to proper directions of such fiduciary which are made in accordance with the terms of the plan and which are not contrary to this chapter, or (2) authority to manage, acquire, or dispose of assets of the plan is delegated to one or more investment managers pursuant to sec- tion 1102(c)(3) of this title. (b) Exceptions The requirements of subsection (a) of this sec- tion shall not apply— (1) to any assets of a plan which consist of insurance contracts or policies issued by an insurance company qualified to do business in a State; (2) to any assets of such an insurance com- pany or any assets of a plan which are held by such an insurance company; (3) to a plan— (A) some or all of the participants of which are employees described in section 401(c)(1) of title 26; or (B) which consists of one or more indi- vidual retirement accounts described in sec- tion 408 of title 26; to the extent that such plan’s assets are held in one or more custodial accounts which qual- ify under section 401(f) or 408(h) of title 26, whichever is applicable. (4) to a plan which the Secretary exempts from the requirement of subsection (a) and which is not subject to any of the following provisions of this chapter— (A) part 2 of this subtitle, (B) part 3 of this subtitle, or (C) subchapter III of this chapter; or (5) to a contract established and maintained under section 403(b) of title 26 to the extent that the assets of the contract are held in one or more custodial accounts pursuant to sec- tion 403(b)(7) of title 26.