On October 13, 2021, the DOL released a proposed rule entitled “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights.” The proposed rule clarifies that retirement plan fiduciaries may consider environmental, social and governance (ESG) factors when making investment decisions and exercising shareholder voting rights. If finalized, the proposed rule will amend the current “Investment Duties” regulation under ERISA.

On October 12, 2021, the IRS released Notice 2021-57, which provides guidance to multiemployer plan sponsors of defined benefit pension plans. The Internal Revenue Code (the Code) requires such plans to meet certain funding requirements. Under Section 432 of the Code, plans that have a funding deficiency may be certified by the plan actuary as endangered or critical status, which carries additional requirements including reporting and notification. The American Rescue Plan Act (ARPA) included relief related to these plans and requirements.

On October 15, 2021, the Pension Benefit Guaranty Corporation (PBGC) issued Technical Update 21-1 explaining that the ERISA Section 4010 reporting obligation is waived in situations where the reporting requirement is triggered only due to a retroactive election permitted by the American Rescue Plan Act of 2021 (ARPA) and IRS Notice 2021-48, among other items.

The Pension Benefit Guaranty Corporation (PBGC) recently announced that the agency’s opinion letter pilot program has been extended to September 30, 2022. PBGC insures most private-sector defined benefit pension plans, and this pilot program is designed to allow employers to request a determination from the agency about whether a proposed defined benefit pension plan will be covered.

On September 28, 2021, the IRS released an issue snapshot on deemed distributions of participant loans. Issue Snapshots represent the IRS’ periodic research summaries on tax-related issues. This snapshot discusses the compliance failures that will cause a participant loan from a retirement plan to be treated as a distribution for tax purposes.

On September 14, 2021, the Department of Labor, Department of the Treasury, and Pension Benefit Guaranty Corporation (collectively, “agencies”) released proposed rules regarding changes to the Form 5500 requirements, most of which will affect the filing requirements for retirement plans. The proposed changes include both revisions to the content of the forms and changes to certain Form 5500 regulations.

On September 1, 2021, the IRS released Rev. Proc. 2021-37, which modifies the opinion letter procedures for pre-approved § 403(b) plans to be more consistent with the procedures applicable to pre-approved qualified § 401(a) plans. The guidance also addresses the deadlines for plan amendments to comply with § 403(b) requirements.

On August 23, 2021, the IRS released an issue snapshot on the expansion of the types of plans that can roll funds over into a SIMPLE IRA. Issue Snapshots represent the IRS’ periodic research summaries on tax-related issues. This snapshot describes the SIMPLE IRA changes made by the Protecting Americans from Tax Hikes Act of 2015 (the Act).

On August 11, 2021, the IRS released an Issue Snapshot focusing upon the universal availability requirement applicable to 403(b) plans (excluding church plans). The analysis was designed to address a common error with respect to the exclusion of certain employees from plan participation.

In July, the Pension Benefits Guarantee Corporation (PBGC) hosted a couple of webinars on the special financial assistance (SFA) for financially troubled multiemployer plans that was provided by the American Rescue Plan Act (ARPA). The ARPA authorized PBGC to provide SFA to multiemployer pension plans that are in critical and declining or critical status, were approved to suspend benefits under the Multiemployer Pension Reform Act of 2014, or became insolvent after December 16, 2014, but have not been terminated.