WASHINGTON--One of the authors of legislation to enhance the transparency of 401(k) plan fees said the measure will not move this year in Congress, while the Department of Labor continues to work on their own disclosure rules.

"We're not going to move it," Rep. George Miller, D-Calif., chairman of the House Education and Labor Committee, told Congress Daily. "We don't see the presidentsigning it. And with the amount of time left, it's just too difficult to get anything through the Senate anyway."

Rep. Miller also cited differences with the House Ways and Means Committee, which also has a say because 401(k) plans are administered under the tax code and therefore fall under Ways and Means jurisdiction.

Industry supporters of the bill cast the decision to wait until next year, and the next Congress, as the sensible option given the amount of legislative work that would have been required and the shortened congressional calendar during an election year.

"Given the short time left in this Congress, and that Senate action is clearly not possible, it makes sense to wait till the next Congress," said Brian Graff, executive director and chief operating officer at the American Society of Pension Professionals & Actuaries, which supports the Miller legislation.

Jason Hammersla, a spokesperson for the American Benefits Council, agreed that despite the efforts already put into the bill, the issues involved are too important to try and resolve in a hurried manner.

"We appreciate all the hard work and thought that Congress put into the examination of 401(k) plan fees and disclosure practices," he said. "However, we believe caution in this area is prudent, given that so many workers depend on these plans for their retirement savings, and a rush to legislate could have unintended consequences for these individuals."

At the same time, the Department of Labor is continuing to work on their own regulation regarding 401(k) fees.

Mr. Hammersla said that a proposed regulation had been expected to be released in "late spring" and that "depending on your definition of that, they could still be on time."

However, as with Congress, the change in administration next year is expected to complicate matters, and Mr. Hammersla said that while the regulations may "still be on track," completing the process during the Bush administration's tenure may be an unreachable goal. "I don't know if they'll be able to finalize it by the end of the year," he said.

In hearings before department policymakers earlier this year, insurance brokers' groups expressed concerns that while the concept of greater transparency may be a noble goal, the realities of how the marketplace operates makes the proposal unworkable for employee benefit plans.

Aon Corporation executive vice president and general counsel Cameron Findlay, who is also a former deputy secretary of labor, appeared at a hearing on behalf of the Council of Insurance Agents and Brokers. He noted that while the department's concern was regarding undisclosed fees for participant-directed defined contributions plans, "the same concerns are not present with respect to the placement of insurance products with welfare plans."

Disclosing the future compensation a broker would be paid is impossible, he told the department, explaining that such compensation is "unknowable" in advance and that it is difficult to determine certain contingent or discretionary compensation on the basis of a particular policy or purchaser.

Ashley Gillihan, who testified on behalf of the Self-Insurance Institute of America, also testified regarding compensation for brokers and agents, calling on the department to clarify the proposal regarding employee health plan insurance fee transparency to include both "commissions" and other forms of compensation.

Mr. Gillihan noted, as an example, that some sales compensation is commonly based on the volume of overall sales for a specific carrier and that such compensation may not appear as part of a specific transaction.

In such cases, he argued, a sponsor of an employee benefit plan may not have a complete picture to compare their cost options regarding self-insured versus fully insured insurance plans.

"Our goal is to assure a level playing field for self-insured employee health plans in comparison to fully insured plans so that plan fiduciaries have all the information they need to make prudent decisions regarding participants' coverage," he said.

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