On December 22, 2017, the Pension Benefit Guaranty Corporation (PBGC) published a final rule (the PBGC Rule) that expands its program to track and handle the benefits of missing retirement plan participants. The PBGC Rule was issued on the heels of recent guidance by the US Internal Revenue Service (IRS) on the appropriate steps for qualified plans to take to locate missing participants. Historically, the PBGC has operated a missing participant program under which single-employer plans subject to the PBGC’s jurisdiction under Title IV of the Employee Retirement Income Security Act of 1974, as amended (ERISA), could transfer to the PBGC the responsibility for the payment of benefits to missing plan participants. The PBGC Rule modifies the requirements governing the steps a plan fiduciary must undertake to search for missing participants (the diligent search) before the benefit may be transferred to the PBGC. The PBGC Rule also permits certain defined contribution plans and multiemployer defined benefit plans to participate in this program.
The PBGC Rule comes at a time when ERISA plan fiduciaries are facing increasing scrutiny related to their efforts to search and locate missing participants. For example, the US Department of Labor (DOL) has increased its investigation activities around this issue, and the IRS’s recently issued guidance also evidences the agency’s increased attention to this area.
One notable point about the PBGC Rule is that the PBGC consulted and coordinated with both the IRS and the DOL. Because of this coordination, the PBGC Rule shows consistency with recent IRS and DOL guidance on the minimum due diligence steps a plan fiduciary should take to search for missing participants. The three pieces of recent guidance are as follows:
- The DOL Field Assistance Bulletin (FAB) 2014-01 on Fiduciary Duties and Missing Participants in Terminated Defined Contribution Plans, issued on August 14, 2014, which sets out for DOL investigators the steps (and distribution options) a plan administrator should undertake, in conjunction with a defined contribution plan termination, to search for missing participants.
- The PBGC Rule, which, as noted above, identifies the requirements that govern the steps a plan fiduciary must undertake to search for missing participants before the plan can transfer the participants’ benefits to the PBGC. For a defined benefit plan, those steps have been modified to be “inspired by the guidelines” in FAB 2014-01. For a defined contribution plan, those steps are exactly tied to the requirements of any DOL guidance under Section 404 of ERISA, which at present is limited to FAB 2014-01.
- The IRS October 19, 2017 Memorandum, which sets out for IRS examiners the minimum steps a plan can take to search for missing participants to avoid a qualification failure under Internal Revenue Code Section 401(a)(9) for failure to make a required minimum distribution. These IRS-endorsed steps are remarkably similar to the guidelines in FAB 2014-01.
Together, these three pieces of guidance can be viewed as a rough roadmap—endorsed by all three agencies—for plan fiduciaries trying to determine the appropriate due diligence steps to take with respect to missing participants.
The chart below identifies those steps. The resulting rough roadmap for plan fiduciaries is of course subject to the particular facts and circumstances.
The preamble to the PBGC Rule indicates that both the DOL and the IRS expect to issue more guidance in this area in the future, subject to further coordination among the agencies. Consequently, plan fiduciaries should expect that these compliance requirements will continue to evolve.