I write in response to the news item $250 limit set on gifts in the At Deadline section in the Aug. 4 P&I. The characterization of a line in the DOL internal enforcement manual as guidance is misplaced. In fact, the manual explicitly states in the first paragraph:
Nothing in this manual is intended to be an interpretation of law or regulation or to serve as guidance for persons outside the Department of Labor. Nor does this manual confer on any person, including one who is the subject of an Employee Benefits Security Administration investigation or enforcement action, a right to rely on any policy or procedure stated herein, or otherwise create any other substantive or procedural rights.
Note also that the provision in question reads, Further, for enforcement purposes only, the Investigator/Auditor generally should adhere to the following guidelines:
(1) The Investigator/Auditor should treat as insubstantial, and not as an apparent violation of ERISA (Section) 406(b)(3), the receipt by a fiduciary ... of the following items or services from any one individual or entity ... as long as their aggregate annual value is less than $250 and their receipt does not violate any plan policy or provision...
The suggestion to an investigator that receipt does not violate 406(b)(3) provides no indication that a violation, of say, 406(b)(1) would not be implicated.