108
HARRIS TRUST AND SAV. BANK Opinion of the Court
partment did not mention, let alone elaborate on, any grounding for Interpretive Bulletin 75-2 in § 1101's guaranteed benefit policy exemption, nor did the Bulletin speak of the application of its pronouncement, if any, to ERISA's fiduciary duty prescriptions.
The Department asserts the absence of any textual basis for the view, adopted by the Second Circuit, that "certain assets [can be considered] plan assets for general fiduciary duty purposes but not for prohibited transaction purposes," 970 F. 2d, at 1145, and, accordingly, no reason to suppose that Interpretive Bulletin 75-2's statement regarding plan assets would not apply in both contexts. See Brief for United States as Amicus Curiae 26-27. Nothing in Interpretive Bulletin 75-2 or 29 CFR § 2509.75-2 (1992), however, sets forth that position, or otherwise alerts the reader that more than the prohibited transaction exemption was then subject to the Department's scrutiny.16 Had the Department intended Interpretive Bulletin 75-2 to apply to the guaranteed benefit policy exclusion, it would have had to explain how an unqualified exclusion for an insurer's general asset account can be reconciled with Congress' choice of a more limited ("to the extent that") formulation. Its silence in that regard is an additional indication that the 1975 pronouncement did not originally have the scope the Department now attributes to it.17
16 It is noteworthy that the Secretary of Labor has express authority to grant exemptions from the rules regarding prohibited transactions, but not from § 1104's fiduciary duty provisions. See 29 U. S. C. § 1108.
17 After a lengthy rulemaking proceeding, the Department did promulgate, in 1986, a comprehensive interpretation of what ERISA means by "plan assets." See 51 Fed. Reg. 41278 (1986), 29 CFR § 2510.3-101 (1992). Again, however, the Department did not mention the guaranteed benefit policy exemption contained in § 1101(b) or refer to the status of assets in that setting. See 29 CFR § 2510.3-101 (1992). The Department, without comment, "note[d] that the portion of Interpretive Bulletin 75-2 dealing with contracts or policies of insurance is not affected by the regulation being issued here." 51 Fed. Reg. 41278 (1986). But Interpretive Bulletin
Page: Index Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 NextLast modified: October 4, 2007