DOL and Treasury update guidance agendas for employee benefits (fall 2018)

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USA October 24 2018

The principal regulators of US employee benefits have recently published updates to their guidance plans for the coming months.

On October 18, 2018, the US Department of Labor (DOL) published its Semi-Annual Regulatory Agenda, stating the agency’s current and long-term regulatory activities. This publication takes the form of a Federal Register notice to comply with certain administrative requirements. The DOL’s agenda and related materials include 13 pending projects related to employee benefits, which are listed in the chart below in order of the projected timetable for next steps. (In the ordinary course, the projected dates shown on the agenda may prove to be ambitious.)
On August 17, 2018, the US Department of the Treasury and the Internal Revenue Service (IRS) released their Fourth Quarter Update to the 2017-2018 Priority Guidance Plan, often informally referred to as the IRS Business Plan, which lists those issues that will be the subject of formal guidance from July 2017 through June 2018. The fourth quarter update to the IRS Business Plan includes 15 pending items addressing retirement benefits, and an additional 15 pending items addressing executive compensation, health care and other benefits. The items are listed in the chart below in the reverse order of when they first appeared on the agenda.

Projects added to the agendas since they were last published are shown in bold. There are two new DOL initiatives and no new IRS initiatives.

Of the 43 projects, 15 have been pending for at least five years.
One of the two new DOL initiatives—a revised definition of “employer” in the multiple employer plan (MEP) retirement setting—reflects a White House directive and was released this week. Electronic delivery of required participant notices, another White House issue, is not yet on the agenda.
The DOL fiduciary rule remains on the agenda, and has been switched back from a “long term item” (Spring 2018 agenda) to a “current item.” The September 2019 projected date coincides with the anticipated completion date for the SEC “best interest” project in its latest regulatory agenda. DOL, of course, has not yet responded to either the White House directive to restudy its 2016 rule or the vacatur of that rule by the US Court of Appeals for the Fifth Circuit.