Regulators Have Big Agendas Still for 2017

The Office of Management and Budget (OMB) issued the Trump Administration’s Unified Agenda of Regulatory and Deregulatory Actions, which provides an updated report on the actions administrative agencies plan to issue in the near and long term.

Among rules the Internal Revenue Service (IRS) lists as planning to issue in 2017 are those regarding the definition of governmental plan and rules related to retirement plans of Indian Tribal Governments. An Advanced Notice of Proposed Rulemaking (ANPRM) was issued for both of these rules in 2011, and while the IRS held a comment period and public hearings, nothing has been issued since then.                     

Also on the IRS’ list are rules and guidance for which it still plans to issue a Notice of Proposed Rulemaking (NPRM). The agency says it plans in 2017 to issue additional guidance regarding the determination of plan assets and benefit liabilities for purposes of the funding requirements that apply to single employer defined benefit (DB) plans, the use of certain funding balances maintained for those plans, and the benefit restrictions for certain underfunded DB plans.

In addition, the IRS plans to issue proposed regulations that would provide guidance on the requirement for plan administrators or employers to furnish an individual statement to participants who separate from service with a deferred vested benefit, as well as proposed regulations that would provide an update to existing final vesting regulations that generally apply to tax qualified retirement plans under section 411(a) of the Internal Revenue Code and 29 U.S.C. 1053 and 1054.

The IRS’ regulatory agenda for 2017 also lists a NPRM for requirements for employee stock ownership plans (ESOPs). And, no doubt, the agency is awaiting action in Congress for proposed regulations on the excise tax on high cost employer-sponsored health coverage under section 4980(I), enacted by the Affordable Care Act.

As for the Department of Labor’s (DOL)'s regulatory agenda for 2017, it lists its Request for Information (RFI) on Fiduciary Rule and Prohibited Transaction Exemptions. The RFI has been issued and the first comment period about delaying the implementation of the rule has ended. The second comment period seeking information regarding potential new and amended administrative class exemptions from the prohibited transaction provisions of the Employee Retirement Income Security Act (ERISA) will end soon.

The DOL also has slated for this month an interim final rule about an amendment to its Abandoned Plan Program. The agency issued an NPRM in 2012 examining whether, and how, to amend those regulations by expanding the scope of individuals entitled to be a "qualified termination administrator" (QTA). Under the Termination of Abandoned Individual Account Plans regulations, only a QTA is authorized to determine whether an individual account plan is abandoned, and to carry out related activities necessary to the termination and winding up of the plan's affairs.

The list also shows the DOL plans to issue an interim final rule amending and restating its Voluntary Fiduciary Correction Program (VFCP) under ERISA.

The Pension Benefit Guaranty Corporation’s (PBGC)'s regulatory agenda for 2017 lists, among other things:

• Valuation Assumptions and Methods: Interest and Mortality Assumptions for Asset Allocation in Single-Employer Plans and Mass Withdrawal Liability Determination in Multiemployer Plans;
• Methods for Computing Withdrawal Liability;
• Terminated and Insolvent Multiemployer Plans and Duties of Plan Sponsors;
• PBGC-Approved Arbitration Procedures—Multiemployer Plans;
• Mergers and Transfers Between Multiemployer Plans; and
• Missing Participants.