DOL and Treasury/IRS Release Fall 2023 Regulatory Agendas

[35565]

December 21, 2023

TO: ICI Members
Pension Committee
Pension Operations Advisory Committee SUBJECTS: Pension
Tax RE: DOL and Treasury/IRS Release Fall 2023 Regulatory Agendas

 

The Office of Information and Regulatory Affairs recently released its Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions (Agenda), which includes updated Agency Rule Lists from the Department of Labor (DOL) and the Treasury Department and Internal Revenue Service (IRS) – including projected dates for the issuance of proposed and final regulations.[1] As described in more detail below, both DOL and Treasury/IRS expect to issue items in the coming months. Many of the Agenda items have incorporated changes required by the SECURE 2.0 Act.[2]

Department of Labor Agenda

DOL includes the following regulatory projects for the Employee Benefits Security Administration (EBSA) on the Agenda.

Retirement Security Rule: Definition of an Investment Advice Fiduciary (RIN 1210-AC02)

On November 3, 2023, DOL finally released its proposed amendment[3] to the regulation defining who is a fiduciary as a result of rendering investment advice for a fee[4] and proposed amendments to several existing prohibited transaction exemptions (PTEs). The proposal would greatly broaden the definition, would generally shift all fiduciary investment advice under the purview of PTE 2020-02, and would add significant new requirements to PTE 2020-02. After holding several member calls to develop our response, ICI has circulated a draft comment letter on the proposal. The Agenda does not list any action beyond the close of the comment period, which ends on January 2, 2024.[5] DOL held a public hearing on the proposal on December 12 and 13, 2023, and ICI testified.

Prohibited Transaction Exemption Procedures (RIN 1210-AC05)

In March 2022, DOL proposed amendments to the procedures governing the filing and processing of prohibited transaction exemption (PTE) applications.[6] Unlike most administrative procedures, the proposal contains significant substantive provisions.[7] DOL proposes changes that would significantly modify the exemption process and formally codify new additional burdens on applicants and independent fiduciaries covered by and involved in an exemption. Of particular significance, the amendments would impose "impartial conduct standards" (as formalized in PTE 2020-02)[8] as a baseline condition for approving exemptions. ICI submitted a comment letter on May 31, 2022, expressing concerns regarding the proposal and explaining that the changes will make it more difficult and expensive to apply for a PTE.[9] DOL held a public hearing on the proposal on September 15, 2022, and also reopened the comment period on the proposal until October 28, 2022. The Agenda estimates a final rule by December 2023 (OMB completed its review of this final rule on December 11, so we expect to see this item imminently). This project is related to a separate project that is not on the Agenda—proposed amendments to PTE 84-14 (the Qualified Professional Asset Manager (QPAM) Exemption).[10] DOL sent the final QPAM Exemption to OMB for review on November 14, 2023.

Improvement of the Form 5500 Series and Implementing Related Regulations Under ERISA (RIN 1210-AC01)

The Agenda continues to include a project on Form 5500, which relates back to a 2016 proposal to more broadly revise and modernize Form 5500.[11] The finalization of the 2016 proposal had been removed from DOL's long-term agenda in 2019, but a new modernization project was added back in the Spring 2021 agenda. The project is described as "part of a strategic project with the [IRS and PBGC] to improve the Form 5500 . . . [by] [m]odernizing the financial and other annual reporting requirements on the Form 5500, making the investment and other information on the Form 5500 more data mineable . . . [and] enhancing the agencies' ability to collect employee benefit plan data that best meets the needs of changing compliance projects, programs, and activities." The Agenda estimates a proposal by September 2024 (the Spring 2023 agenda listed March 2024).[12]

Adoption of Amended and Restated Voluntary Fiduciary Correction Program (RIN 1210-AB64)

After appearing on DOL's regulatory agenda for several years (since 2014), on November 18, 2022, DOL finally released proposed updates to its Voluntary Fiduciary Correction Program (VFCP) and amendments to the related prohibited transaction exemption (PTE 2002-51). VFCP is designed to encourage the voluntary correction of fiduciary violations by allowing plan fiduciaries to avoid civil penalties and excise taxes by voluntarily disclosing and correcting certain violations of ERISA.[13] The amendments would make several improvements to VFCP, the most significant being the addition of a new self-correction feature. Comments were due on January 20, 2023; DOL reopened the comment period until April 17, 2023, to allow commenters to address issues raised by section 305 of the SECURE 2.0 Act (expansion of EPCRS).[14] The Agenda estimates a final rule by December 2023 (the Spring 2023 agenda listed "analyze comments" for June 2023).

Amendment of Abandoned Plan Program (RIN 1210-AC04)

In December 2012, DOL issued proposed amendments to the abandoned plan regulations, which focused primarily on the ability of a chapter 7 bankruptcy trustee to act as a Qualified Termination Administrator and utilize the existing abandoned plan program to terminate abandoned plans and distribute benefits.[15] The Agenda estimates an interim final rule by November 2023 (DOL sent this item to OMB for review on July 19, 2023).

Exemption for Certain Automatic Portability Transactions (RIN 1210-AC21)

Section 120 of the SECURE 2.0 Act provides a statutory prohibited transaction exemption under the Code for service providers offering "auto-portability" services (i.e., the transfer of a participant's automatic rollover IRA attributable to participation in a previous employer's plan to a new employer's plan). The exemption includes a number of conditions for relief, including acknowledgement of fiduciary status, reasonable fees, and various required notices and disclosures. The SECURE 2.0 Act requires DOL to issue guidance or regulations to carry out the purposes of the amendments (including several specified items) not later than 12 months after the date of the enactment. This project is to implement these regulations. The Agenda estimates a proposal to be issued by December 2023 (this item was sent to OMB for review on December 5, 2023).

Improving Participant Engagement and Effectiveness of ERISA Retirement Plan Disclosures (RIN 1210-AC09)

In an item first added to the Agenda in Fall 2021 (and listed as in the pre-rule stage), DOL intends "to explore ways to improve the effectiveness of retirement plan disclosures required under [ERISA], balanced with the cost to plans and plan participants and beneficiaries of providing such disclosures."[16] DOL "intends to start by consulting with a diverse set of stakeholders, including participant representatives, employers sponsoring ERISA retirement plans, and retirement plan service and investment providers, to explore alternatives for improving the understandability and effectiveness of such disclosures." Further, this review will "explore whether, and how, the content, design, and delivery of such disclosures may be reimagined, improved, consolidated, standardized, and simplified to enhance participants' disclosure experiences, promote greater participant engagement, and improve outcomes." The SECURE 2.0 Act included multiple reporting and disclosure provisions, requiring DOL and other agencies to study, and in some cases modify, retirement plan notice and disclosure requirements.[17] The Agenda confirms that this project will take into account these new provisions, both individually and in the aggregate. The Agenda estimates that an RFI will be issued by November 2023. OMB finished its review of this RFI on December 11, so we expect DOL to release it imminently (the Spring 2023 Agenda listed "stakeholders meetings" for June 2023).

SECURE 2.0 Reporting and Disclosure (RIN 1210-AC23)

DOL adds a new Agenda item relating to several SECURE 2.0 provisions that impact ERISA's reporting and disclosure requirements. On August 11, 2023, DOL released an RFI that includes 31 questions designed to solicit public feedback and begin developing a public record for several provisions from SECURE 2.0.[18] In the RFI, DOL notes that "[t]his feedback will inform more specific, detailed rulemaking or other guidance on such provisions in the future," and that it will continue to consult with other agencies, including the Treasury Department. On October 10, 2023, ICI submitted a response to the RFI.[19] The Agenda lists RFI Analyze Comments for November 2023.

Pooled Employer Plans (RIN 1210-AC10)

Another Agenda item in the pre-rule stage relates to PEPs, created by section 101 of the SECURE Act as a new type of multiple employer pension benefit plan. Section 101 granted DOL authority to issue guidance appropriate to carry out the purposes of the new provisions. In November 2020, DOL established registration requirements for providers of PEPs, including a new Form PR (Pooled Plan Provider Registration).[20] The Agenda describes this new action as exploring "the need for regulatory or other guidance regarding implementation of the" PEP provisions in the SECURE Act. DOL "intends to start by consulting with a diverse set of stakeholders, including employers and employees and their representatives and retirement plan service and investment providers, to explore areas where regulatory or other guidance would facilitate establishment and operation of pooled employer plans."[21] The Agenda lists "stakeholder meetings" for September 2024 (the Spring 2023 agenda listed June 2023). Section 344 of the SECURE 2.0 Act requires DOL to conduct a study on PEPs, including their impact on coverage and recommendations on how PEPs can be improved, through legislation, to serve and protect retirement plan participants, and provide a report to Congress within 5 years of enactment and every 5 years thereafter.[22] As the Agenda notes, this project will take into account section 344 of the SECURE 2.0 Act.

Emergency Savings Accounts Linked to Individual Account Plans (RIN 1210-AC18)

Section 127 of the SECURE 2.0 Act permits employers to offer, as part of a DC plan, a new short-term "emergency savings account" to non-highly compensated employees.[23] Section 127 also grants DOL (and Treasury) authority to issue regulations or other guidance, including model plan language and notices. The Agenda describes this new action as exploring "the need for regulatory or other guidance regarding implementation of [this provision]." DOL "intends to start by consulting with stakeholders to explore areas where regulatory or other guidance would facilitate establishment of pension-linked emergency savings accounts." The Agenda lists "Staff Conducts Technical Review" for November 2023 (the Spring 2023 agenda listed "stakeholder meetings" for June 2023). Note that this item requires coordination with Treasury, and Treasury currently does not have this item included in its Agenda.

Plan Reporting for Retirement Savings Lost and Found (RIN 1210-AC19)

Section 303 of the SECURE 2.0 Act directs DOL (in consultation with Treasury), within two years of enactment, to create a national online, searchable database to be managed by DOL, containing information on tax-qualified retirement plans to enable retirement savers to search for the contact information of their plan administrator and locate the benefits they have earned. The SECURE 2.0 Act also requires plans to report certain information to DOL.[24] The Agenda describes DOL's purpose for this project as prescribing "regulations for the collection of information to carry out the purposes of the Retirement Savings Lost and Found." The Agenda lists "Staff Conducts Technical Review" for November 2023 (the Spring 2023 agenda listed "stakeholder meetings" for June 2023). 

Pension Benefit Statements—Lifetime Income Illustrations (RIN 1210-AB20)

The SECURE Act requires defined contribution plans to include an annual lifetime income stream estimate on participant benefit statements, setting forth the lifetime income stream equivalent of the participant's total account balance under the plan, based on an annuity payout.[25] The SECURE Act requires DOL to provide a model lifetime income disclosure, issue rules, and prescribe assumptions. In August 2020, DOL issued an interim final rule, which became effective on September 18, 2021.[26] This item has been moved to EBSA's long term agenda, with no date listed for a final rule (the Fall 2022 agenda estimated release of the final rule by May 2023).[27]

Treasury Department and IRS Agenda

The Treasury/IRS Agenda includes several retirement savings items, including:

Guidance on Code section 401(a)(9) Required Minimum Distributions (RMDs) (RIN 1545-BP82), and SECURE 2.0 Act Updates to RMD Rules (RIN 1545-BQ66)

The SECURE Act made a number of changes to the RMD rules for IRAs, qualified plans, 403(b) plans, and 457(b) plans, as set forth in section 401(a)(9) of the Code.[28] IRS published proposed regulations on February 24, 2022, both to implement these changes and to address other statutory changes to the rollover rules of Code section 402(c) that have been made since regulations were first issued.[29] ICI submitted a comment letter on May 25, 2022.[30] On October 7, 2022, IRS released Notice 2022-53, providing limited interim guidance in advance of issuing final regulations.[31] The Agenda lists December 2023 as the expected date of final regulations (the Fall 2022 agenda listed June 2023).

In addition to the above, the SECURE 2.0 Act makes several further changes to the RMD rules.[32] These changes are listed on the Agenda as a separate new rulemaking, with a proposed rule expected to be issued in December 2023 (previously listed as June 2023) contemporaneously with the aforementioned final regulations.[33]

Participation in Cash or Deferred Arrangements by Long-Term Part-Time Employees (RIN 1545-BQ70)

The SECURE Act section 112 requires 401(k) plans to permit participation by workers who complete at least three consecutive years of service with at least 500 hours of service each year. Effective for plan years beginning after December 31, 2024, section 125 of the SECURE 2.0 Act reduces this three-year service requirement to two years.[34] The SECURE 2.0 Act also clarifies that pre-2021 service is disregarded for vesting purposes (as well as for eligibility purposes) under this provision (effective as if included in the SECURE Act). Proposed rules were published in the Federal Register Nov. 27, 2023.[35]

MEPs and the Unified Plan Rule (RIN 1545-BO97)

The SECURE Act created an exception to the unified plan rule for multiple employer plans (MEPs) under Code section 413(e), allowing pooled employer plans (PEPs) (as well as other MEPs consisting of related employers) to continue to be treated as satisfying the tax qualification requirements of the Code despite a violation of these requirements with respect to one or more participating employers. In the case of a violation of the tax qualification requirements by a participating employer, the SECURE Act allows the plan to spin off the portion of the plan's assets attributable to that participating employer into a separate plan maintained by that employer. The IRS published proposed regulations to implement this SECURE Act exception on March 28, 2022.[36] ICI submitted a comment letter on May 27, 2022.[37] According to the Agenda, IRS expects to issue final regulations by December 2023 (the Spring 203 agenda had listed June 2023).

Rules Relating to the Use of Electronic Media to Make Participant Elections and Spousal Consents (RIN 1545-BQ50)

On December 30, 2022, IRS published proposed regulations to provide rules relating to the use of electronic media to make participant elections and spousal consents.[38] The Agenda continues to list May 2024 as the date for final action.

SECURE Act Modifications to Certain Rules Governing 401(k) Plans (RIN 1545-BP81)

The SECURE Act included several modifications to the 401(k) plan rules, including to: increase the auto-enrollment safe harbor cap on auto-escalation (section 102); ease rules for safe harbor 401(k) plans (section 103); permit distributions upon elimination of certain lifetime income investment options (section 109); allow 401(k) plan participation by long-term part-time workers (section 112); and exempt from the early withdrawal penalty certain distributions for birth or adoption of a child (section 113). The SECURE 2.0 Act includes changes to some of these provisions, including participation by long-term part-time employees, which has been broken out into a separate item as discussed above. The Agenda lists this item as a long-term action with  November 2024 as the expected date of proposed regulations to implement these provisions (the Spring 2023 agenda listed December 2023).

Guidance on Rules Applicable to IRAs and Roth IRAs (RIN 1545-BL98)

IRS intends to update the regulations for IRAs and Roth IRAs to incorporate the statutory changes that have been enacted since the current regulations were issued. The Agenda this item as a long-term action with proposed regulations estimated by November 2024 ((the Spring 2023 agenda estimated May 2024). Note that the SECURE 2.0 Act included several changes affecting IRAs, though the Agenda description does not explicitly mention the SECURE 2.0 Act.

Section 72(t) 10 Percent Additional Tax Regulations (RIN 1545-BM96)

IRS intends to issue proposed regulations under Code section 72(t), regarding the application of the 10 percent early withdrawal penalty to that portion of a retirement plan distribution includible in gross income and received by a taxpayer before attaining the age of 59½. The Agenda estimates a proposed rule by February 2024 (the Spring 2023 and Fall 2022 Agendas listed October 2023). The SECURE 2.0 Act includes several changes to Code section 72(t);[39] the Agenda does not indicate whether these SECURE 2.0 Act changes are included in this item.

Reporting and Notice Requirements for Deferred Vested Benefits Under Section 6057 (RIN 1545-BM21)

In June 2012, IRS issued proposed regulations regarding the filing of Form 8955-SSA, "Annual Registration Statement Identifying Separated Participants with Deferred Vested Benefits." In prior regulatory agendas, IRS indicated an intent to finalize those regulations. The current Agenda indicates that IRS will issue a new proposed regulation to provide guidance on the requirement to furnish an individual statement to participants who separate from service with a deferred vested benefit. The Agenda estimates a proposal by January 2024 (the Spring 20023 Agenda listed September 2023, and it was earliest listed as December 2022).

Guidance on Timing of Use or Allocation of Forfeitures in Qualified Retirement Plans (RIN 1545-BO98)

IRS plans to propose regulations describing when forfeitures may be used or allocated in a qualified retirement plan. Proposed regulations were issued February 27, 2023.[40] The Agenda estimates a final rule by March 2024 (the Spring 2023 Agenda listed December 2023).

Withholding on Certain Retirement Plan Distributions Under Code Section 3405(a) and (b) (RIN 1545-BN52)

In 2019 IRS proposed regulations regarding withholding on certain retirement plan distributions, including payments to be delivered outside the US.[41] The Agenda estimates final regulations by January 2024 (the Spring 2023 Agenda listed November 2023).

 

David Cohen
Associate General Counsel, Retirement Policy

Shannon Salinas
Associate General Counsel - Retirement Policy
 

Notes

[1] DOL's Fall 2023 Agency Rule List is available at https://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST&currentPub=true&agencyCode=&showStage=active&agencyCd=1200&Image58.x=32&Image58.y=14. The Treasury Spring 2023 Agency Rule List is available at https://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST&currentPub=true&agencyCode=&showStage=active&agencyCd=1500&csrf_token=8F5A824FDE8E17EC413DAB07E3CB1C22DA97D9DCB249E0C1E83D998656E79A4E30703C4C42671B965A97309BF11DFDB3BC74. Long-term Agency actions can be accessed at https://www.reginfo.gov/public/do/eAgendaHistory?operation=OPERATION_GET_PUBLICATION&showStage=longterm&currentPubId=202310.

[2] On December 29, 2022, the President signed the Consolidated Appropriations Act, 2023 (H.R. 2617), which includes the SECURE 2.0 Act of 2022. See ICI Memorandum No. 34795, dated January 12, 2023, available at https://www.ici.org/memo34795. ICI submitted comments to the IRS requesting guidance on the Secure 2.0 Act, see ICI Memorandum 35218, dated March 28, 2023, available at https://www.ici.org/memo35218; and also submitted comments for the 2023-24 IRS/Treasury priority guidance plan that address certain issues discussed herein. See ICI Memorandum 35346, dated June 12, 2023, available at https://www.ici.org/memo35346.

[3] For an overview of the proposal, see ICI Memorandum No. 35508, dated November 13, 2023, available at https://www.ici.org/memo35508.

[4] Following the Fifth Circuit's vacatur of the Obama era fiduciary rulemaking package, DOL reinstated the five-part test in 2020. See ICI Memorandum No. 32581, dated July 6, 2020, available at https://www.ici.org/memo32581. In the preamble to a prohibited transaction exemption (PTE 2020-02) finalized in December 2020, DOL provided additional commentary regarding its interpretation of the five-part test. See ICI Memorandum No. 32999, dated December 18, 2020, available at https://www.ici.org/memo32999. DOL provided additional guidance regarding the application of the five-part test in FAQs issued in April 2021. See ICI Memorandum No. 33485, dated April 19, 2021, available at https://www.ici.org/memo33485. In October 2021, DOL extended its temporary enforcement policy relating to PTE 2020-02. See ICI Memorandum No. 33873, dated October 28, 2021, available at https://www.ici.org/memo33873.

[5] ICI joined several other trade organizations in requesting that DOL (1) extend the comment period and (2) hold the hearing only after the close of the comment period. In a letter responding to the request, DOL declined both requests.

[6] For a summary of the proposal, see ICI Memorandum No. 34068, dated March 9, 2022, available at https://www.ici.org/memo34068.

[7] ICI joined several other trade organizations in requesting that DOL (1) extend the comment period to from 30 to 60 days, and (2) reevaluate whether the proposal is significant and therefore subject to OMB review. See ICI Memorandum No. 34087, dated March 25, 2022, available at https://www.ici.org/memo34087. In response to the request, DOL announced an extension of the comment period but did not address the second request in the letter—that DOL reevaluate whether the proposal constitutes a "significant" rulemaking. See ICI Memorandum No. 34108, dated April 12, 2022, available at https://www.ici.org/memo34108.

[8] See ICI Memorandum No. 32999, dated December 18, 2020, available at https://www.ici.org/memo32999.

[9] See ICI Memorandum No. 34166, dated June 1, 2022, available at https://www.ici.org/memo34166.

[10] ICI submitted a comment letter on October 11, 2022, expressing significant concerns regarding the proposed QPAM amendments and explaining that the changes, if finalized, will make it more difficult and expensive to use the exemption, put the scope of its coverage in doubt, and in some instances would actually harm the interests of those parties it seeks to protect. See ICI Memorandum No. 34308, dated October 12, 2022, available at https://www.ici.org/memo34308. DOL held a hearing on the QPAM proposed amendments on November 17, 2022, and reopened the comment period until January 6, 2023. On March 23, 2023, DOL announced that it was reopening the comment period on the Proposal until April 6, 2023. ICI submitted additional comments on April 6, 2023. See ICI Memorandum No. 35251, dated April 18, 2023, available at https://www.ici.org/memo35251.

[11] For a summary of the 2016 proposal, which would have significantly increased plans' reporting burden, see ICI Memorandum No. 30071, dated July 25, 2016, available at https://www.ici.org/memo30071.

[12] Note that a prior agenda also included a project on SECURE Act Implementation and Related Revisions to Form 5500 Reporting, which has since been completed with final rules issued in three phases. On September 15, 2021, in a proposed rule issued as Phase I of SECURE Act implementation, the agencies' proposed Form 5500 revisions and amendments to the associated regulations included other changes intended to collect more plan information and make that data more minable. Of note, this included proposed revisions to Form 5500 Schedule H that would (i) significantly expand the required information as to plan investments, and (ii) require standardized electronic submission of Schedule H information. The agencies generally deferred action on these changes; however, these schedule H changes may be included under this new proposal.

[13] For a summary of the proposed amendments, see ICI Memorandum No. 34401, dated November 23, 2022, available at https://www.ici.org/memo34401.

[14] For an overview of the SECURE 2.0 Act, see ICI Memorandum No. 34795, dated January 12, 2023, available at https://www.ici.org/memo34795.

[15] For a description of the proposed amendments, see ICI Memorandum No. 26799 dated December 20, 2012, available at https://www.ici.org/memo26799. ICI submitted a comment letter in response to the proposed amendments. See ICI Memorandum No. 27050, dated February 26, 2013, available at https://www.ici.org/memo27050.

[16] In conjunction with its proposed safe harbor for e-delivery of ERISA disclosures, DOL in 2019 issued an RFI "that explores whether and how any additional changes to ERISA's general disclosure framework, focusing on design, delivery, and content, may be made to further improve the effectiveness of ERISA disclosures." 84 Fed. Reg. 56894, 56894 (October 23, 2019). See ICI Memorandum No. 32022, dated October 24, 2019, available at https://www.ici.org/memo32022. As indicated in this memorandum, ICI also provided input to the ERISA Advisory Council on its related topic of study in 2017. While the Agenda does not refer to this prior RFI, the RFI may provide insight into the types of questions that DOL may be considering. ICI included responses to the RFI in its 2019 comment letter. See ICI Memorandum No. 32062, dated November 25, 2019, available at https://www.ici.org/memo32062.

[17] See ICI Memorandum No. 34795, dated January 12, 2023, available at https://www.ici.org/memo34795. Section 319 of the SECURE 2.0 Act directs DOL, Treasury, and PBGC to review the reporting and disclosure requirements in ERISA and the Internal Revenue Code (Code) applicable to pension and retirement plans and, within three years, to provide a joint report to Congress with recommendations to "consolidate, simplify, standardize, and improve" the requirements. The agencies are to consult with a balanced group of participant and employer representatives and to collect data, as needed, to assess the effectiveness of disclosure requirements. Section 340 requires (within three years of enactment) DOL to review its fee disclosure regulation for participant-directed individual account plans (see 29 CFR 2550.404a-5) and explore how the disclosures could be improved to enhance participants' understanding of fees. The Act requires DOL to report to Congress on the findings and recommendations for legislative changes to address the findings. Finally, section 341 requires (not later than two years after enactment) DOL and Treasury to adopt regulations permitting a DC plan to consolidate two or more of the following notices required under ERISA and the Internal Revenue Code: qualified default investment alternative (QDIA) notice, automatic contribution arrangement notice, 401(k) safe harbor plan notice, qualified automatic contribution arrangement notice, and permissive withdrawal notice.

[18] See ICI Memorandum No. 35399, dated August 14, 2023, available at https://www.ici.org/memo35399.

[19] For a summary of ICI's response, see ICI Memorandum No. 35483, dated October 10, 2023, https://www.ici.org/memo35483. The letter responded to questions relating to:

• the requirement to provide paper statements in certain cases (§338 of the Act);
• defined contribution plan fee disclosure improvements (§340 of the Act);
• performance benchmarks for asset allocation funds (§318 of the Act);
• pooled employer plans (§344 of the Act);
• emergency savings accounts linked to individual account plans (§127 of the Act);
• consolidation of defined contribution plan notices (§342 of the Act); and
• eliminating unnecessary plan requirements related to unenrolled participants (§302 of the Act).

[20] See ICI Memorandum No. 32921, dated November 18, 2020, available at https://www.ici.org/memo32921.

[21] DOL previously issued an RFI on prohibited transactions involving PEPs in 2020, but has not taken further action on the topic. See ICI Memorandum No. 32539, dated June 18, 2020, available at https://www.ici.org/memo32539. The RFI indicated that DOL is considering whether to propose a class exemption to cover prohibited transactions involving PEPs and MEPs. It asked questions about the possible parties, business models, conflicts of interest, and prohibited transactions that might exist in connection with PEPs (or other MEPs that are not PEPs), for purposes of assessing the need for new prohibited transaction exemptions or amendments to existing exemptions. ICI filed a comment letter responding to the RFI, urging DOL to provide guidance needed to implement the SECURE Act's PEP provision and to ensure that no barriers will stand in the way of financial services firms participating in the PEP market. See ICI Memorandum No. 32622, dated July 20, 2020, available at https://www.ici.org/memo32622.

[22] For an overview of the SECURE 2.0 Act, see ICI Memorandum No. 34795, dated January 12, 2023, available at https://www.ici.org/memo34795.

[23] For an overview of the SECURE 2.0 Act, see ICI Memorandum No. 34795, dated January 12, 2023, available at https://www.ici.org/memo34795.

[24] The SECURE 2.0 Act requires this reporting effective with respect to plan years beginning after the second December 31 occurring after the date of enactment. It also places certain restrictions on DOL's use of data and on DOL's ability to collect data from plans and other federal agencies.

[25] For an overview of the SECURE Act, see ICI Memorandum No. 32118, dated December 20, 2019, available at https://www.ici.org/memo32118.

[26] See ICI Memorandum No. 32686, dated August 19, 2020, available at https://www.ici.org/memo32686. ICI submitted comments on the interim final rule in November 2020. See ICI Memorandum No. 32915, dated November 17, 2020, available at https://www.ici.org/memo32915.

[27] This project is listed as a continuation of the Pension Benefit Statements project that appeared on EBSA's long-term agenda in Fall 2019. Previously, the project related to DOL's Advance Notice of Proposed Rulemaking (ANPRM) regarding lifetime income stream illustrations in May 2013. For a description of the ANPRM, see ICI Memorandum No. 27228, dated May 8, 2013, available at https://www.ici.org/memo27228. For a description of ICI's comment letter responding to the ANPRM, see ICI Memorandum No. 27446, dated August 7, 2013, available at https://www.ici.org/memo27446.

[28] For an overview of the SECURE Act, see ICI Memorandum No. 32118, dated December 20, 2019, available at https://www.ici.org/memo32118.

[29] For a description of the proposed regulations, see ICI Memorandum No. 34057, dated March 4, 2022, available at https://www.ici.org/memo34057-0.

[30] For an overview of ICI's comment letter, see ICI Memorandum No. 34160, dated May 25, 2022, available at https://www.ici.org/memo34160.

[31] For an overview of Notice 2022-53, see ICI Memorandum No. 34307, dated October 10, 2022, available at https://www.ici.org/memo34307.

[32] See ICI Memorandum No. 34795, dated January 12, 2023, available at https://www.ici.org/memo34795.

[33] The IRS on March 7, 2023, issued Notice 2023-23, providing relief (as requested by ICI) with respect to incorrect required minimum distribution (RMD) notices provided to IRA owners who turn 72 in 2023—the SECURE 2.0 Act section 107 increased the age for beginning RMDs from retirement accounts from 72 to 73. See ICI Memorandum 35197, dated March 20, 2023, available at https://www.ici.org/memo35197.

[34] See ICI Memorandum No. 34795, dated January 12, 2023, available at https://www.ici.org/memo34795.

[35] Long-Term, Part-Time Employee Rules for Cash or Deferred Arrangements Under Section 401(k), 88 Fed. Reg. 82796 (Nov. 27, 2023), available at https://www.govinfo.gov/content/pkg/FR-2023-11-27/pdf/2023-25987.pdf.

[36] For a description of the proposed regulations, see ICI Memorandum No. 34109, dated April 12, 2022, available at https://www.ici.org/memo34109. For ICI's comment letter on the proposed regulations, see ICI Memorandum No. 34164, dated May 27, 2022, available at https://www.ici.org/memo34164.

[37] For an overview of ICI's comment letter, see ICI Memorandum No. 34164, dated May 27, 2022, available at https://www.ici.org/memo34164.

[38] For a summary of the proposal, see ICI Memorandum No. 34806, dated January 13, 2023, available at https://www.ici.org/memo34806. ICI signed a letter supporting the proposed regulation, submitted on behalf of a number of trade associations. See ICI Memorandum No. 35205, dated March 20, 2023, available at https://www.ici.org/memo35205.

[39] See ICI Memorandum No. 34795, dated January 12, 2023, available at https://www.ici.org/memo34795.

[40] See ICI Memorandum No. 35062, dated March 3, 2023, available at https://www.ici.org/memo35062.

[41] See ICI Memorandum No. 31818, dated June 21, 2019, available at https://www.ici.org/memo31818.