July 02, 2021

The spring 2021 update to the Biden administration’s regulatory agenda includes several items of interest to retirement plan sponsors. The semiannual update lists items on each agency’s to-do list. This article highlights some of the retirement plan items on the updated agendas for the Internal Revenue Service (IRS), the Department of Labor (DOL)’s Employee Benefits Security Administration (EBSA) and the Pension Benefit Guaranty Corp. (PBGC), but omits some routine items. The agendas generally specify anticipated completion dates within the next year; however, those dates are aspirational — unless Congress or the White House has set deadlines for a particular piece of guidance. The agencies have placed certain items on their long-term action lists, so no movement is expected on those items during the next year.

IRS

The IRS agenda includes a number of proposed regulations that have appeared on previous agendas and are unlikely to see much action until the agency has issued guidance on the American Rescue Plan Act’s relief for single-employer and multiemployer plans.
 

Proposed regulations

Some familiar items relating to employer-sponsored retirement plans include proposals for:
 

Newer items on the agenda include proposed regulations on:
 

  • Failures by participating employers in pooled employer plans to satisfy the plan qualification requirements (the “one bad apple” rule)
  • Changes made by the Setting Every Community Up for Retirement Enhancement (SECURE) Act (Pub. L. No. 116-94) to 401(k) plan safe harbors and participation rules for long-term, part-time employees
  • Guidance on required minimum distributions (RMDs) under Section 401(a)(9), reflecting the SECURE Act’s changes to the RMD rules and statutory changes to the rollover requirements made since regulations were first issued in 1995
  • Nondiscrimination testing relief for closed defined benefit (DB) plans reflecting the SECURE Act’s relief under Sections 401(a)(4), 401(a)(26) and 410(b)
  • These proposed regulations presumably would replace IRS’s 2016 proposal.

Final rules

The IRS agenda includes final rules for the following items, though they have been on the agenda in some form for years and may not be top agency priorities:
 

Long-term actions

IRS has moved several noteworthy items to its long-term action list, including proposed regulations on:
 

EBSA

Proposed rules

EBSA’s agenda includes several retirement-plan proposals:
 

  • Form 5500 changes reflecting the SECURE Act’s provision for a consolidated annual report for similar defined contribution (DC) plans for plan years beginning after Dec. 31, 2021
  • To meet the Jan. 1, 2022, statutory implementation deadline, EBSA set an anticipated publication date of June 2021 for the proposed regulation, which didn’t happen
     
  • Changes to two Trump-era rules on considering environmental, social and corporate governance (ESG) factors in investment and proxy voting, following an EBSA review
  • President Biden’s executive orders on climate change encourage DOL to issue a notice of proposed rulemaking suspending, revising or rescinding those rules by September 2021
     
  • A new definition of investment advice fiduciary
  • This follows DOL’s announcement in prohibited transaction exemption 2020-02 that the agency was conducting outreach on this topic

Final and interim final rules

The EBSA agenda includes a new final rule on lifetime income disclosures as required by the SECURE Act. EBSA anticipates publishing a final rule in July before last year’s interim final rule takes effect on Sept. 18, 2021. The agenda also includes two interim final rules (which have been on the agenda for several years):
 

Long-term actions

DOL has one long-term action on its list affecting retirement plans: revisions to the Form 5500 in addition to the consolidated return for similar DC plans noted above. These changes would modernize Form 5500’s financial and annual reporting requirements and make its investment and other information more data-mineable.
 

PBGC

PBGC’s agenda lists several proposals, all of which have previously appeared on the agenda, including:
 

The agenda includes a single new interim final rule that will provide guidance on the special financial assistance for multiemployer plans provided under the American Rescue Plan Act (ARPA) of 2021. ARPA requires PBGC to issue these rules by July 9.
 

No long-term actions

PBGC currently has no items listed as long-term regulatory projects.
 

Related resources

Non-Mercer resources

Mercer Law & Policy resources

Margaret Berger
by Margaret Berger

Partner, Mercer’s Law & Policy Group

Brian Kearney
by Brian Kearney

Principal, Mercer’s Law & Policy Group


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