29 U.S.C. § 1101: Coverage

a plan which is unfunded and is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees; or any agreement described in section 736 of title 26 , which provides payments to a retired partner or deceased partner or a deceased partner’s successor in interest. In the case of a plan which invests in any security issued by an investment company registered under the Investment Company Act of 1940 [ 15 U.S.C. 80a–1 et seq.], the assets of such plan shall be deemed to include such security but shall not, solely by reason of such investment, be deemed to include any assets of such investment company. The term “insurer” means an insurance company, insurance service, or insurance organization, qualified to do business in a State. The term “guaranteed benefit policy” means an insurance policy or contract to the extent that such policy or contract provides for benefits the amount of which is guaranteed by the insurer. Such term includes any surplus in a separate account, but excludes any other portion of a separate account. Not later than June 30, 1997 , the Secretary shall issue proposed regulations to provide guidance for the purpose of determining, in cases where an insurer issues 1 or more policies to or for the benefit of an employee benefit plan (and such policies are supported by assets of such insurer’s general account), which assets held by the insurer (other than plan assets held in its separate accounts) constitute assets of the plan for purposes of this part and section 4975 of title 26 and to provide guidance with respect to the application of this subchapter to the general account assets of insurers. The proposed regulations under subparagraph (A) shall be subject to public notice and comment until September 30, 1997 . The Secretary shall issue final regulations providing the guidance described in subparagraph (A) not later than December 31, 1997 . Such regulations shall only apply with respect to policies which are issued by an insurer on or before December 31, 1998 , to or for the benefit of an employee benefit plan which is supported by assets of such insurer’s general account. With respect to policies issued on or before December 31, 1998 , such regulations shall take effect at the end of the 18-month period following the date on which such regulations become final. are administratively feasible, and protect the interests and rights of the plan and of its participants and beneficiaries (including meeting the requirements of paragraph (3)). that a plan fiduciary totally independent of the insurer authorize the purchase of such policy (unless such purchase is a transaction exempt under section 1108(b)(5) of this title ), a description of the method by which any income and expenses of the insurer’s general account are allocated to the policy during the term of the policy and upon the termination of the policy, and for each report, the actual return to the plan under the policy and such other financial information as the Secretary may deem appropriate for the period covered by each such annual report, that the insurer disclose to the plan fiduciary the extent to which alternative arrangements supported by assets of separate accounts of the insurer (which generally hold plan assets) are available, whether there is a right under the policy to transfer funds to a separate account and the terms governing any such right, and the extent to which support by assets of the insurer’s general account and support by assets of separate accounts of the insurer might pose differing risks to the plan, and that the insurer manage those assets of the insurer which are assets of such insurer’s general account (irrespective of whether any such assets are plan assets) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims, taking into account all obligations supported by such enterprise. Compliance by the insurer with all requirements of the regulations issued by the Secretary pursuant to paragraph (1) shall be deemed compliance by such insurer with sections 1104, 1106, and 1107 of this title with respect to those assets of the insurer’s general account which support a policy described in paragraph (3). Subject to subparagraph (B), any regulations issued under paragraph (1) shall not take effect before the date on which such regulations become final. as otherwise provided by the Secretary in regulations intended to prevent avoidance of the regulations issued under paragraph (1), or as provided in an action brought by the Secretary pursuant to paragraph (2) or (5) of section 1132(a) of this title for a breach of fiduciary responsibilities which would also constitute a violation of Federal or State criminal law. Nothing in this subsection shall preclude the application of any Federal criminal law. For purposes of this subsection, the term “policy” includes a contract. Except as provided in paragraph (2), the amendment made by this section [amending this section] shall take effect on January 1, 1975 . The amendment made by this section shall not apply to any civil action commenced before November 7, 1995 .”