DOL and Treasury/IRS Release Spring 2024 Regulatory Agendas

[35774]

July 18, 2024

TO: ICI Members
Pension Committee
Pension Operations Advisory Committee SUBJECTS: Pension
Tax RE: DOL and Treasury/IRS Release Spring 2024 Regulatory Agendas

 

The Office of Information and Regulatory Affairs recently released its Spring 2024 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.

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.[3] 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 Fall 2023 agenda also listed September 2024).[4]

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.[5] 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).[6] The Agenda estimates a final rule by July 2024 (the Fall 2023 agenda listed December 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.[7] In May 2024, DOL published interim final rules and a related amendment to Prohibited Transaction Exemption (PTE) 2006-06, amending the Abandoned Plan Program.[8] Acknowledging the delay in finalizing the rules, DOL adopted the changes as an interim final rule and included a request for comments, with comments due by July 16, 2024. ICI submitted a comment letter. The Agenda does not list any action beyond the close of the comment period.

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. In January 2024, DOL issued proposed regulations to implement section 120, as required by the statute.[9] The comment period for the proposed regulations ended on March 29, 2024. The Agenda lists "analyze comments" as the next step, for July 2024.

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

In an item first added to the Agenda in Fall 2021 (prior to the enactment of the SECURE 2.0 Act), DOL states that it 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."[10] According to the Agenda, 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.[11] The Agenda confirms that this project will take into account these new provisions, both individually and in the aggregate. In January 2024, DOL issued an RFI soliciting public input to develop a record as it reviews the effectiveness of existing reporting and disclosure requirements for retirement plans, as required by section 319 of the SECURE 2.0 Act.[12] The RFI was issued jointly with the Treasury Department, the IRS and the PBGC. Comments on the RFI were due (after a 30-day extension) by May 22, 2024. ICI submitted a comment letter.[13] The Agenda lists "analyze comments" as the next step, for July 2024. This project is also listed on Treasury's regulatory agenda, as described below.

SECURE 2.0 Reporting and Disclosure (RIN 1210-AC23)

The Agenda includes an 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.[14] 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.[15] The Agenda lists "analyze comments" as the next step, for September 2024 (the Fall 2023 agenda listed 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).[16] 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."[17] The Agenda lists "stakeholder meetings" for September 2024 (the Fall 2023 agenda also listed September 2024). 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.[18] 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.[19] 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 Interagency Technical Review" for July 2024 (the Fall 2023 agenda listed "Staff Conducts Technical Review" for November 2023). DOL and IRS each issued subregulatory guidance on this topic earlier this year.[20] However, 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.[21] 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 July 2024 (the Fall 2023 agenda listed November 2023). The Agenda does not reference the fact that DOL published a proposed Information Collection Request (ICR) proposing to collect information from plan administrators voluntarily in order to establish the database.[22] Comments on the proposed ICR were due on June 17, 2024, and ICI submitted comments.[23]  

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.[24] 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.[25] 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).[26]

 

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.[27] 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.[28] ICI submitted a comment letter on May 25, 2022.[29] On October 7, 2022, IRS released Notice 2022-53, providing limited interim guidance, including transition relief, in advance of issuing final regulations.[30] The Agenda lists July 2024 as the expected date of final regulations (the Fall 2023 agenda listed December 2023). The IRS released these final regulations on July 18, and they will be published in the Federal Register on July 19, 2024.[31]

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 July 2024 (previously listed as December 2023) contemporaneously with the aforementioned final regulations.[33] The IRS released these proposed regulations on July 18, and they will be published in the Federal Register on July 19, 2024, with a 60-day comment period.[34]

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.[35] 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 November 2023.[36] The Agenda lists October 2024 as the expected date for final action.

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.[37] ICI submitted a comment letter on May 27, 2022.[38] According to the Agenda, IRS expects to issue final regulations by July 2024 (the Fall 2023 agenda had listed January 2024). Note that the Agenda includes a new item, described below, that will provide guidance on whether unrelated employers participating in a MEP have a "common interest."

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.[39] The Agenda lists November 2024 as the expected date for final regulations (the Fall 2023 agenda listed May 2024).

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 December 2024 as the expected date for proposed regulations (the Fall 2023 agenda listed November 2024).

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 lists this item as a long-term action with proposed regulations estimated by July 2025 (the Fall 2023 agenda listed November 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 SECURE 2.0 Act includes several changes to Code section 72(t); the Agenda does not indicate whether these SECURE 2.0 Act changes are included in this item. The Agenda estimates a proposed rule by December 2024 (the Fall agenda listed February 2024).

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 October 2024 (the Fall 2023 agenda listed January 2024,).

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

Proposed regulations describing when forfeitures may be used or allocated in a qualified retirement plan were issued February 27, 2023.[40] The Agenda lists this as a long-term action, with a final rule estimated by July 2025 (the Fall 2023 Agenda listed it as a regular action with a final rule expected by March 2024).

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 December 2024 (the Fall 2023 Agenda listed January 2024).

Request for Information - SECURE 2.0 Section 319 - Effectiveness of Reporting and Disclosure Requirements (RIN 1545-BQ98)

As described above under DOL's regulatory agenda, in January 2024, DOL, Treasury, and PBGC issued a joint agency RFI soliciting public input to develop a record as the agencies review the effectiveness of existing reporting and disclosure requirements for retirement plans, as required by section 319 of the SECURE 2.0 Act.[42] Comments on the RFI were due (after a 30-day extension) by May 22, 2024. ICI submitted a comment letter.[43] The IRS adds this project to its agenda, listing "Final Action" by December 2024 as the next step. It is not clear if by final action, IRS is referring to the report to Congress, which the statute requires by December 2025.

Rollovers from Qualified Tuition Programs Under Section 529 to ROTH IRAs (RIN 1545-BR02)

Section 126 of the SECURE 2.0 Act allows tax free rollovers from 529 college savings accounts to Roth IRAs, under certain conditions, effective for distributions after December 31, 2023.[44] This new Agenda item indicates that IRS plans to issue proposed regulations by December 2024 providing guidance on this new provision.

Automatic Enrollment Requirements Under Section 414A (RIN 1545-BR08)

Section 101 of the SECURE 2.0 Act will require, effective for plan years beginning after December 31, 2024, that newly established 401(k) and 403(b) plans automatically enroll participants (subject to certain exceptions).[45] This new Agenda item indicates that the IRS plans to issue propose regulations under this provision by October 2024.

SECURE 2.0 Act Updates to Catch-up Contribution Rules Under Section 414(v) (RIN 1545-BR11)

Section 603 of the SECURE 2.0 Act will require all future catch-up contributions (by employees aged 50 or older) to a 401(k), 403(b), or governmental 457(b) plan to be made as Roth contributions, unless the employee earned $145,000 (indexed) or less in the prior year from the employer sponsoring the plan.[46] Section 109 of the SECURE 2.0 Act increases the limit on catch-up contributions for participants who are aged 60, 61, 62, and 63 to the greater of $10,000 ($5,000 in the case of SIMPLE plans) or 50 percent more than the regular catch-up amount in 2025, effective for taxable years beginning after December 31, 2024. Section 117 of the SECURE 2.0 Act increases the catch-up limit (and the contribution limit) for certain SIMPLE plans.[47] This new Agenda item indicates that IRS plans to issue proposed regulations that will provide guidance on all of these provisions by October 2024.

Regulations on Definition of Section 413(e) Plan (RIN 1545-BR14)

The IRS has added a new item to the Agenda, indicating that it will issue proposed regulations to provide guidance on whether employers that participate in a section 413(e) multiple employer plan have a common interest other than having adopted the plan, which is relevant in determining eligibility for the exception to the unified plan rule that generally applies to a section 413(e) multiple employer plan that does not have a pooled plan provider. The Agenda indicates that the proposed regulations will be issued by October 2024.

 

Shannon Salinas
Associate General Counsel - Retirement Policy

David Cohen
Associate General Counsel, Retirement Policy
 

Notes

[1] DOL's Spring 2024 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 2024 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=6B1E02085C8701F3D6540D895C6AB319D41888D9BDE43A7291F3BC3B300B0D9F33515D233C15FC571CC063A3C46D835378C1. Long-term Agency actions can be accessed at https://www.reginfo.gov/public/do/eAgendaHistory?operation=OPERATION_GET_PUBLICATION&showStage=longterm&currentPubId=202404.

[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 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.

[4] 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.

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

[6] 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. For our memo on the reopening of the comment period, see ICI Memorandum No. 34958, dated February 15, 2023, available at https://www.ici.org/memo34958.

[7] 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.

[8] For an overview of the interim final rule and related PTE, see ICI Memorandum No. 35722, dated May 29, 2024, available at https://www.ici.org/memo35722.

[9] For a description of the proposal, see ICI Memorandum No. 35609 dated February 01, 2024, available at https://www.ici.org/memo35609.

[10] 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.

[11] 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. 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.

[12] For an overview of the RFI, see ICI Memorandum No. 35597, dated January 24, 2024, available at https://www.ici.org/memo35597.

[13] For an overview of ICI's letter, see ICI Memorandum No. 35714, dated May 23, 2024, available at https://www.ici.org/memo35714. Our letter expresses ICI's strong support for efforts to help participants in defined contribution (DC) plans better understand their plans and the investments available to them. The suggestions in our letter are generally based on comments we made in four prior comment letters, which describe ways DOL and IRS could increase flexibility for plan sponsors, rather than require any particular type of prescriptive disclosure enhancement.

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

[15] 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).

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

[17] 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.

[18] 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.

[19] 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.

[20] See ICI Memorandum No. 35604, dated January 30, 2024, available at https://www.ici.org/memo35604.

[21] 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.

[22] For an overview of the proposed ICR, see ICI Memorandum No. 35685, dated April 17, 2024, available at https://www.ici.org/memo35685.

[23] For an overview of ICI's comments, see ICI Memorandum No. 35745, dated June 18, 2024, available at https://www.ici.org/memo35745. Our letter explained that several aspects of the proposed ICR raise concerns for our members.

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

[25] 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.

[26] 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.

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

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

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

[30] For an overview of Notice 2022-53, see ICI Memorandum No. 34307, dated October 10, 2022, available at https://www.ici.org/memo34307. The IRS subsequently extended this relief through 2024 in Notices 2023-54 and 2024-35. For a summary of Notice 2023-54, see ICI Memorandum No. 35378, dated July 19, 2023, available at https://www.ici.org/memo35378. For a summary of Notice 2024-35, see ICI Memorandum No, 35682, dated April 16, 2024, available at https://www.ici.org/memo35682.

[31] The final regulations are available at https://public-inspection.federalregister.gov/2024-14542.pdf.

[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] The proposed regulations are available at https://public-inspection.federalregister.gov/2024-14543.pdf.

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

[36] See ICI Memorandum No. 35596, dated January 24, 2024, available at https://www.ici.org/memo35596.

[37] 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.

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

[39] 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.

[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.

[42] Section 319 of the SECURE 2.0 Act directed DOL, Treasury, and PBGC to review the reporting and disclosure requirements in ERISA and the 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.

[43] For an overview of ICI's letter, see ICI Memorandum No. 35714, dated May 23, 2024, available at https://www.ici.org/memo35714.

[44] In our March 28, 2023 letter to Treasury, ICI requested guidance on several aspects of this new rollover option, including the requirement that the 529 account must have existed for at least 15 years, application of the IRA compensation requirement, the limitation on roll over of recent contributions and earnings, and how to report the rollovers. See ICI Memorandum 35218, dated March 28, 2023, available at https://www.ici.org/memo35218.

[45] In our March 28, 2023 letter to Treasury, ICI requested clarification regarding the impact of certain plan changes on eligibility for the grandfather exemption applicable to existing plans and guidance for non-grandfathered plans regarding which employees must be automatically enrolled in 2025. See ICI Memorandum 35218, dated March 28, 2023, available at https://www.ici.org/memo35218.

[46] This provision was originally enacted to be effective for taxable years beginning after December 31, 2023. ICI, along with many retirement industry service providers and other industry participants, expressed concerns with the challenges of implementing section 603 by the effective date. In response to these concerns, on August 25, 2023, IRS and Treasury issued Notice 2023-62, which effectively provided for a 2-year delay (until taxable years beginning after December 31, 2025) of the applicability of this requirement and requested comments both on the Notice and on other matters under section 603. See ICI Memorandum No. 35426, dated August 30, 2023, available at https://www.ici.org/memo35426. On October 24, 2023, ICI submitted a comment letter to IRS and Treasury in response to IRS Notice 2023-62. See ICI Memorandum No. 35496, dated October 24, 2023, available at https://www.ici.org/memo35496.

[47] The increased limits are available only to employers with no more than 25 employees, and, for employers with more than 25 employees and not more than 100 employees, the increased limits are available only to those who make enhanced employer contributions on behalf of employees (either a 4 percent matching contribution or 3 a percent non-elective contribution). In addition to comments regarding Section 117 in our March 28, 2023 letter to Treasury, we have also reached out to Treasury and IRS staff to discuss issues member firms have encountered in implementing Section 117, as well as Section 601, which permits SIMPLE IRA and SEP IRA contributions to be made as Roth contribution.