[Federal Register Volume 81, Number 244 (Tuesday, December 20, 2016)]
[Rules and Regulations]
[Pages 92639-92654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30069]


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DEPARTMENT OF LABOR

Employee Benefits Security Administration

29 CFR Part 2510

RIN 1210-AB76


Savings Arrangements Established by Qualified State Political 
Subdivisions for Non-Governmental Employees

AGENCY: Employee Benefits Security Administration, Department of Labor.

ACTION: Final rule.

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SUMMARY: This document contains an amendment to a final regulation that 
describes how states may design and operate payroll deduction savings 
programs for private-sector employees, including programs that use 
automatic enrollment, without causing the states or private-sector 
employers to have established employee pension benefit plans under the 
Employee Retirement Income Security Act of 1974 (ERISA). The amendment 
expands the final regulation beyond states to cover qualified state 
political subdivisions and their programs that otherwise comply with 
the regulation. This final rule affects individuals and employers 
subject to such programs.

DATES: This rule is effective 30 days after the date of publication in 
the Federal Register.

FOR FURTHER INFORMATION CONTACT: Janet Song, Office of Regulations and 
Interpretations, Employee Benefits Security Administration, (202) 693-
8500. This is not a toll-free number.

SUPPLEMENTARY INFORMATION: 

I. Background

A. The 2016 Final Safe Harbor Regulation

    On August 30, 2016, the Department issued a final regulation 
establishing a safe harbor pursuant to which state governments can 
establish payroll deduction savings programs for private-sector 
employees, including programs with automatic enrollment, without 
causing either the state or the employers of those employees to have 
established employee pension benefit plans subject to ERISA. The 
Department published the safe harbor regulation in response to 
legislation in some states, and strongly-expressed interest in others, 
to encourage private-sector employees to save for retirement by giving 
those employees broader access to retirement savings arrangements 
through their employers. The safe harbor regulation became effective on 
October 31, 2016.
    As the Department noted in the final regulation's preamble, 
concerns that tens of millions of America's workers do not have access 
to workplace retirement savings arrangements led some states to 
establish state-administered programs that allow private-sector 
employees to contribute salary withholdings to tax-favored individual 
retirement accounts described in 26 U.S.C. 408(a), individual 
retirement annuities described in 26 U.S.C. 408(b), and Roth IRAs 
described in 26 U.S.C. 408A (collectively, IRAs). California, 
Connecticut, Illinois, Maryland, and Oregon, for example, have adopted 
laws along these lines.\1\ Those programs generally require certain 
employers that do not offer workplace savings arrangements to 
automatically deduct a specified amount of wages from their employees' 
paychecks, unless an employee affirmatively chooses not to participate 
in the program, and to remit those payroll deductions to state-
administered programs consisting of IRAs established for each 
participating employee. All of these state initiatives allow employees 
to stop payroll deductions at any time once they have begun, and they 
typically require that employers provide employees with program-
generated information, including information on employees' rights and 
various program features. None of the programs, however,

[[Page 92640]]

currently require employers to make matching or other employer 
contributions to employee accounts, while some programs expressly 
prohibit employer contributions and other programs do not address that 
issue.
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    \1\ California Secure Choice Retirement Savings Trust Act, Cal. 
Gov't Code Sec. Sec.  100000-10044 (2012); Connecticut Retirement 
Security Program Act, P.A. 16-29 (2016); Illinois Secure Choice 
Savings Program Act, 820 Ill. Comp. Stat. 80/1-95 (2015); Maryland 
Small Business Retirement Savings Program Act, Ch. 24 (H.B. 1378) 
(2016); Oregon Retirement Savings Board Act, Ch. 557 (H.B. 2960) 
(2015).
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    The Department also noted in the 2016 final safe harbor 
regulation's preamble that some stakeholders had expressed concern that 
their payroll deduction savings programs might cause either the state 
or the covered employers to inadvertently establish ERISA-covered 
plans, despite the states' express intent to avoid such a result. The 
states' concern is based in part on ERISA's broad definition of 
``employee pension benefit plan'' and ``pension plan,'' which ERISA 
defines, in relevant part, as ``any plan, fund, or program which was 
heretofore or is hereafter established or maintained by an employer or 
by an employee organization, or by both, to the extent that by its 
express terms or as a result of surrounding circumstances such plan, 
fund, or program . . . provides retirement income to employees . . . 
.'' \2\ That definition's broad scope is further evident in the fact 
that the Department and the courts have broadly interpreted the phrase 
``established or maintained'' as requiring only minimal involvement by 
an employer or employee organization.\3\ Thus, for example, it is 
possible for an employer to establish an ERISA plan simply by 
purchasing insurance products for an individual employee or employees. 
Given these expansive definitions, which Congress deemed essential to 
ERISA's purpose of protecting plan participants by ensuring the 
security of promised benefits, ERISA applies to nearly all benefit 
arrangements that private-sector employers establish for their 
employees.
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    \2\ 29 U.S.C. 1002(2)(A). ERISA's Title I provisions ``shall 
apply to any employee benefit plan if it is established or 
maintained . . . by any employer engaged in commerce or in any 
industry or activity affecting commerce . . . .'' 29 U.S.C. 1003(a). 
Section 4(b) of ERISA includes express exemptions from coverage 
under Title I for governmental plans, church plans, plans maintained 
solely to comply with applicable state laws regarding workers 
compensation, unemployment, or disability, certain foreign plans, 
and unfunded excess benefit plans. 29 U.S.C. 1003(b).
    \3\ Donovan v. Dillingham, 688 F.2d 1367 (11th Cir. 1982); 
Harding v. Provident Life and Accident Ins. Co., 809 F. Supp. 2d 
403, 415-419 (W.D. Pa. 2011); DOL Adv. Op. 94-22A (July 1, 1994).
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    The states' desire to avoid inadvertently creating ERISA plans 
through their payroll deduction savings programs stems from the fact 
that, with certain exceptions, ERISA preempts state laws that relate to 
ERISA-covered employee benefit plans.\4\ Thus, if a state program 
requires private employers to take actions that effectively cause those 
employers to establish ERISA-covered plans, the state law underlying 
the program would likely be preempted. Similarly, if the state-
sponsored program itself were deemed to be an ERISA plan, ERISA would 
likely preempt any state law that mandates private-sector employers to 
enroll their employees in that program. It is important to note in this 
regard that although ERISA does exempt from its scope benefit plans 
that states establish for their own employees, the state payroll 
deduction savings programs at issue here would not fit that 
definition.\5\
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    \4\ ERISA section 514(a), 29 U.S.C. 1144(a).
    \5\ ERISA section (3)(32), 29 U.S.C. 1002(32).
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    The Department responded to these concerns by publishing the 2016 
final safe harbor regulation, which described specific conditions 
pursuant to which state payroll deduction savings programs, including 
those with automatic enrollment, would not result in the state or 
private-sector employers having established ERISA-covered employee 
pension benefit plans. The 2016 final safe harbor regulation thus helps 
states to establish and operate payroll deduction savings programs in a 
manner that reduces the risk that ERISA would preempt their laws and 
programs. That final regulation did not, however, include within its 
scope payroll deduction savings programs established by state political 
subdivisions.

B. Proposed Amendment to the 2016 Safe Harbor Regulation

1. Expanding the Safe Harbor To Include Political Subdivisions
    On August 30, 2016, the Department published in the Federal 
Register a proposed rule amending the 2016 final safe harbor regulation 
to include within its scope laws and programs established by certain 
state political subdivisions.\6\ The proposed amendment addressed 
certain public comments the Department received after it first 
published the safe harbor regulation in 2015 as a proposed rule.\7\ In 
particular, several commenters had expressed the view that the 
Department's definition of ``State'' in the 2015 proposed safe harbor 
regulation was too narrow because it did not include political 
subdivisions. Some of these commenters identified New York City as 
being interested in offering a program. The 2015 proposal defined the 
term ``State'' by referencing section 3(10) of ERISA, which provides, 
in relevant part, that the term State ``includes any State of the 
United States, the District of Columbia, Puerto Rico, the Virgin 
Islands, American Samoa, Guam, [and] Wake Island.'' That definition 
excludes from the safe harbor any payroll deduction savings program 
established by state political subdivisions, such as a cities or 
counties.
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    \6\ See 81 FR 59581 (August 30, 2016).
    \7\ Id. See also 80 FR 72006 (November 18, 2015). On the same 
day that the 2015 proposed rule was published, the Department also 
published an Interpretive Bulletin explaining the Department's views 
concerning the application of ERISA section 3(2)(A), 29 U.S.C. 
1002(2)(A), section 3(5), 29 U.S.C. 1002(5), and section 514, 29 
U.S.C. 1144, to certain state laws designed to expand retirement 
savings options for private-sector workers through state-sponsored 
ERISA-covered retirement plans. 80 FR 71936 (codified at 29 CFR 
2509.2015-02). Although discussed in the context of a state as the 
responsible governmental body, in the Department's view the 
principles articulated in the Interpretive Bulletin regarding 
marketplace arrangements and sponsorship of ERISA-covered plans also 
apply with respect to laws of a political subdivision, provided 
applicable conditions in the bulletin can be and are satisfied by 
the political subdivision. A number of commenters asked the 
Department to amend the Interpretive Bulletin to reflect this view. 
Such an amendment is beyond the scope of this rulemaking.
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    Although the Department retained the section 3(10) definition in 
the 2016 final safe harbor regulation, the Department nevertheless 
agreed with commenters that there may be good reasons for expanding the 
safe harbor, subject to certain conditions, to cover political 
subdivisions and their programs. While it is not clear to the 
Department how many such political subdivisions eventually will have an 
interest in establishing programs of the kind described in the final 
safe harbor regulation, thus far the Department has only received 
written letters of interest from representatives of Seattle, 
Philadelphia and New York City.\8\ Accordingly, the Department proposed 
amending the 2016 final safe harbor regulation to add to Sec.  2510.3-2 
paragraph (h) the term ``or qualified political subdivision'' wherever 
the term ``State'' appears. That change would cause the regulation's 
safe harbor to apply to ``qualified'' political subdivision payroll 
deduction savings programs in the same manner as it applies to state 
programs.
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    \8\ See, e.g., Comment Letter #4 (Seattle City Councilmember Tim 
Burgess); Comment letter #5 (City of Philadelphia Controller); 
Comment Letter #20 (New York City Mayor).
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    The proposed amendment also added a new subparagraph (h)(4) to 
define the term ``qualified political subdivision'' as any governmental 
unit of a state, including any city, county, or similar governmental 
body that met three criteria. First, the political subdivision must 
have the authority, under state law, whether implicit or explicit, to 
require employers' participation in the

[[Page 92641]]

payroll deduction savings program. Second, the political subdivision 
must have a population equal to or greater than the population of the 
least populous state.\9\ Third, the political subdivision cannot be 
within a state that has a statewide retirement savings program for 
private-sector employees.\10\
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    \9\ For this purpose, the term ``state'' does not include the 
non-state authorities listed in section 3(10) of ERISA. Thus, it 
does not include the District of Columbia, Puerto Rico, the Virgin 
Islands, American Samoa, Guam, and Wake Island.
    \10\ The proposal's paragraph (h)(4) definition would not, 
however, apply for other purposes under ERISA, such as for 
determining whether an entity is a political subdivision for 
purposes of the definition of a ``governmental plan'' in section 
3(32) of ERISA, 29 U.S.C. 1002(32).
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    The Department's goal in defining ``qualified political 
subdivision'' in this way was to reduce the number of political 
subdivisions that can fit within the safe harbor and focus the 
authority on those subdivisions most likely to have the capacity to 
implement successful programs. As the Department noted in the proposed 
rule's preamble, the U.S. Census Bureau reports that there are 
approximately 90,000 local governmental units in the United States, 
many of which could be considered ``political subdivisions'' for 
purposes of the proposed regulation.\11\ Given this large number, the 
Department was concerned that expanding the safe harbor to all 
political subdivisions would result in overlapping programs within a 
given state.\12\ The Department also had some concerns about expanding 
the safe harbor to very small political subdivisions, as the U.S. 
Census Bureau has reported that approximately 83% of state subdivisions 
have populations of less than 10,000 people.\13\ These statistics led 
the Department to propose to further limit the types of political 
subdivisions that can fall within the safe harbor to those that are 
sufficiently large and sophisticated to have the ability to oversee and 
safeguard payroll deduction savings programs.
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    \11\ This figure represents the U.S. Census Bureau's count for 
2012 (the most recent data available). The U.S. Census Bureau 
produces data every 5 years as a part of the Census of Governments 
in years ending in ``2'' and ``7.'' See U.S. Census Bureau, 
Government Organization Summary Report: 2012 Census of Governments 
(http://www.census.gov/govs/cog/index.html).
    \12\ This could occur in situations where, for example, an 
employer operates in a state (or states) with multiple political 
subdivisions.
    \13\ U.S. Census Bureau, County Governments by Population-Size 
Group and State: 2012 Census of Governments; U.S. Census Bureau; 
Subcounty Governments by Population-Size Group and State: 2012 
Census of Governments (http://www.census.gov/govs/cog/index.html).
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2. Criteria Limiting Political Subdivision Eligibility for the Safe 
Harbor
    The first proposed criterion limiting the potential number of 
political subdivisions eligible for the safe harbor requires that the 
political subdivision have either explicit or implicit authority under 
state law to establish and operate a payroll deduction savings program 
and to require employers within its jurisdiction to participate. In the 
case of programs with automatic enrollment, that authority must 
encompass the power to require employers to execute payroll deduction 
wage withholdings.\14\ This criterion will effectively limit the safe 
harbor's scope to so-called ``general-purpose'' subdivisions, which are 
political subdivisions that have the authority to exercise traditional 
sovereign powers, such as the power of taxation, the power of eminent 
domain, and the police power. It includes county governments, municipal 
governments, and township governments.\15\ According to the U.S. Census 
Bureau, there are approximately 40,000 ``general-purpose'' political 
subdivisions in the United States.\16\ By contrast, ``special-purpose'' 
subdivisions, such as utility districts or transit authorities, 
ordinarily would not have this kind of authority under state law. Thus, 
the Department expects that this criterion alone will reduce the 
universe of political subdivisions potentially eligible for the safe 
harbor from the approximate total of 90,000 U.S. political subdivisions 
to approximately 40,000.
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    \14\ This criterion not only limits the number of political 
subdivisions that would be eligible for the safe harbor, it also is 
central to the Department's analysis under section 3(2) of ERISA and 
the conclusion that employers are not establishing or maintaining 
ERISA-covered plans. Other criteria in (h)(4) also serve this 
purpose by reducing the likelihood that an employer might become 
involved with the arrangement beyond the limits of the safe harbor.
    \15\ See U.S. Census Bureau, Government Organization Summary 
Report: 2012 Census of Governments (http://www.census.gov/govs/cog/index.html).
    \16\ The U.S. Census Bureau's count of general-purpose political 
subdivisions for 2012 was 38,910 (3,031 counties, 19,519 
municipalities, and 16,360 townships). Id.
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    The second proposed criterion limiting the number of potentially-
eligible political subdivisions requires that the political subdivision 
have a population equal to or greater than the population of the least 
populous U.S. state (excluding the District of Columbia and the 
territories listed in section 3(10) of the ERISA). Based on the most 
recent U.S. Census Bureau statistics available, the least populous U.S. 
state had approximately 600,000 residents.\17\ This criterion will 
significantly reduce the possibility of overlap by further limiting the 
universe of potentially-eligible political subdivisions from 
approximately 40,000 to a subset of approximately 136.\18\
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    \17\ Wyoming was the least populated state in the U.S., with a 
population of 586,107. See U.S. Census Bureau, Annual Estimates of 
the Resident Population for States: 2015 Population Estimate 
(https://www.census.gov/popest/data/state/totals/2015/index.html).
    \18\ As of 2015, there were approximately 136 general-purpose 
political subdivisions with populations equal to or greater than the 
population of Wyoming.
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    The proposal's third criterion further limited the safe harbor to 
political subdivisions in states that do not offer their own statewide 
retirement savings program for private-sector employees.\19\ As 
presented in the proposal, this criterion would have applied to state 
retirement savings programs described in the safe harbor rule itself, 
29 CFR 2510.3-2(h), and also to programs described or referenced in the 
Department's Interpretive Bulletin found at 29 CFR 2509.2015-02. This 
criterion excluded from the safe harbor approximately 48 additional 
political subdivisions that otherwise meet the proposal's population 
threshold, thereby further limiting the universe of potentially 
eligible political subdivisions to approximately 88 as of the date of 
the proposed rule.
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    \19\ Eight states have already adopted laws to implement some 
form of statewide retirement savings program for private-sector 
employees. California Secure Choice Retirement Savings Trust Act, 
Cal. Gov't Code Sec. Sec.  100000-100044 (2012); Connecticut 
Retirement Security Program Act, Pub. Act. 16-29 (2016); Illinois 
Secure Choice Savings Program Act, 820 Ill. Comp. Stat. 80/1-95 
(2015); Maryland Small Business Retirement Savings Program Act, ch. 
324 (H.B. 1378) (2016); Mass. Gen. Laws Ch. 29, Sec.  64E (2012); 
New Jersey Small Business Retirement Marketplace Act, Public Law 
2015, Ch. 298; Oregon Retirement Savings Board Act, Ch. 557 (H.B. 
2960) (2015); Washington State Small Business Retirement Savings 
Marketplace Act, Wash. Rev. Code Sec. Sec.  43.330.730-750 (2015).
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3. Solicitation of Comments on the Proposed Amendment
    The Department solicited public comments on all aspects of the 
proposed amendment, including comments on criteria the Department did 
not specifically address in the proposal, but which might be useful in 
refining the qualified political subdivision definition. In addition, 
the Department also requested comments on other facets of the safe 
harbor more generally. In response to these solicitations, the 
Department received approximately 27 written comments, many of which 
are discussed under the topical headings below.

[[Page 92642]]

II. Final Rule

A. General Overview

    The final rule largely adopts the proposal's general structure. 
Specifically, it amends paragraph (h) of Sec.  2510.3-2 by adding the 
term ``or qualified political subdivision'' wherever the term ``State'' 
appears in the regulation. Thus, with these amendments, the final 
regulation's safe harbor provisions generally apply in the same manner 
to qualified political subdivision payroll deduction savings programs 
as they apply to state programs.
    The final rule also adopts proposed new subparagraph (h)(4), but 
with modifications. In the final rule, paragraph (h)(4) defines the 
term ``qualified political subdivision'' as any governmental unit of a 
state, including any city, county, or similar governmental body that 
meets four criteria.\20\ First, the political subdivision must have 
implicit or explicit authority under state law to require employers' 
participation in the payroll deduction savings program. 29 CFR 2510.3-
2(h)(4)(i).\21\ Second, the political subdivision must have a 
population equal to or greater than the population of the least 
populous state.\22\ 29 CFR 2510.3-2(h)(4)(ii)(A). Third, the political 
subdivision cannot be within a state that has enacted a mandatory 
statewide payroll deduction savings program for private-sector 
employees; nor can the political subdivision have geographic overlap 
with another political subdivision that has enacted such a program. 29 
CFR 2510.3-2(h)(4)(ii)(B).\23\ Fourth, the political subdivision must 
implement and administer a retirement plan for its employees. 29 CFR 
2510.3-2(h)(4)(ii)(C).\24\ Compliance with the latter three conditions 
is determined as of the date the political subdivision's program is 
enacted.
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    \20\ This new definition does not apply for other purposes under 
ERISA, such as for determining whether an entity is a political 
subdivision for purposes of the definition of a ``governmental 
plan'' in section 3(32) of ERISA, 29 U.S.C. 1002(32).
    \21\ This provision reduces the approximate number of 
potentially eligible political subdivisions from 90,000 to 40,000.
    \22\ This provision reduces the approximate number of 
potentially eligible political subdivisions from 40,000 to 128. For 
purposes of this provision, the term ``state'' does not include the 
non-state authorities listed in section 3(10) of ERISA. Thus, it 
does not include the District of Columbia, Puerto Rico, the Virgin 
Islands, American Samoa, Guam, and Wake Island.
    \23\ This provision reduces the approximate number of 
potentially eligible political subdivisions from 128 to 80.
    \24\ This provision reduces the approximate number of 
potentially eligible political subdivisions from 80 to 51.
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B. The Authority Test

    The final rule adopts the proposal's requirement that in order to 
be ``qualified'' a political subdivision must have the ``authority, 
implicit or explicit, under State law to require employers' 
participation in the program . . . .'' Sec.  2510.3-2(h)(4)(i). This 
provision serves two purposes. The main purpose is to ensure that the 
political subdivision has the authority under state law to require 
employers within its jurisdiction to participate in the payroll 
deduction savings program and, in the case of programs with automatic 
enrollment, to require wage withholding. This is not to say, however, 
that a state law must explicitly authorize the political subdivision to 
establish a payroll deduction savings program; rather, it means that 
the political subdivision must have some measure of legal authority, 
even if implicit, to establish and operate the program and to compel 
employers to participate.\25\ The provision's second purpose is to 
limit the qualified political subdivision definition--and by extension 
to limit the safe harbor's scope--to general-purpose subdivisions, a 
limitation that greatly reduces the approximate number of potentially-
eligible subdivisions from 90,000 to 40,000. For these reasons, and 
noting that the Department did not receive significant or notable 
comments on this particular provision, the Department incorporates this 
provision in the final rule without change.
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    \25\ This particular purpose is central to the Department's 
analysis under section 3(2) of ERISA and to its conclusion that 
employers are not establishing or maintaining ERISA-covered plans. 
81 FR 59464, 70-71 (Aug. 30, 2016).
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C. The Population Test

    The final rule adopts the proposal's population test for safe 
harbor qualification, with one modification. As noted above, the final 
rule states, in relevant part, that a political subdivision must have 
``a population equal to or greater than the population of the least 
populated State,'' and defines the term ``State'' to have the same 
meaning as in section 3(10) of ERISA (excluding the District of 
Columbia and territories listed in that section). 29 CFR 2510.3-
2(h)(4)(ii)(A).\26\ The final rule modifies the proposal by adding to 
(h)(4)(ii) the phrase ``[a]t the time of the enactment of the political 
subdivision's payroll deduction savings program,'' and applying this 
requirement to the population test, as well as the two other conditions 
that a political subdivision must satisfy to be a qualified political 
subdivision.
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    \26\ The U.S. Census Bureau currently identifies Wyoming as the 
least populous state, with approximately 600,000 residents.
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    The Department has two primary policy reasons for adopting the 
population test. First, it is important that the safe harbor not 
include political subdivisions that may not have the experience, 
capacity, and resources to establish and oversee payroll deduction 
savings programs. Second, the Department is interested in reducing the 
possibility that employers would be subject to a multiplicity of 
overlapping political subdivision programs. It is the Department's view 
that the population test is an important measure in achieving both of 
those purposes. In the preamble to the proposed rule, the Department 
articulated these policy considerations for public notice and comment.
    The Department received a number of comments on this issue that 
reflected apparently conflicting viewpoints. Some commenters supported 
the population test because they agree with the Department that 
population size correlates with a political subdivision having the 
experience, capacity, and resources to implement the necessary 
structures to establish and oversee payroll deduction savings programs 
and meet the safe harbor regulation's various requirements.\27\ These 
commenters state that political subdivisions with larger populations 
are more likely to share states' concerns about the effect of 
inadequate retirement savings on social welfare programs. Other 
commenters disagreed with the population test's underlying premise, as 
they believe that a population test is arbitrary and does not prove 
either that the least populated state has sufficient capacity to 
establish and oversee a payroll deduction savings program or that 
political subdivisions with lesser populations are per se incapable of 
competently overseeing such a program.
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    \27\ See Comment Letter #11 (Corporation for Enterprise 
Development); Comment Letter #14 (AARP); Comment Letter #17 
(AFSCME).
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    The Department agrees with those commenters who recognize a 
relationship between population, on the one hand, and resources, 
experience, and capacity on the other. This is because larger cities 
and counties (in terms of population) likely have, among other things, 
a larger tax base and governmental infrastructure, which provides 
access to greater resources, experience, and capacity than smaller

[[Page 92643]]

cities and counties.\28\ In this regard, population can serve as one 
indicator of whether a city or county is likely to have sufficient 
resources, experience, and capacity to safely and competently establish 
and oversee a payroll deduction savings program. By keying off the 
least populated state, the final regulation's population test 
effectively establishes a federal floor, such that no political 
subdivision could qualify for the safe harbor unless the subdivision 
has a level of capacity and resources equal to or greater than the 
capacity and resources of the least populated state, using population 
as a proxy for capacity and resources.
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    \28\ For similar reasons, the population test also would reduce 
the likelihood of employer involvement beyond the limits of the safe 
harbor regulation. For instance, larger cities and counties with 
greater resources, experience and capacity likely will be better 
able to assert and maintain complete control over their programs 
such that there will be few or no occasions for participating 
employers to exercise their own discretion or control with respect 
to the program.
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    The provisions of the Department's safe harbor pertaining to state 
payroll deduction savings programs assume that even the least populated 
states have the capacity and resources to manage a payroll deduction 
savings program. In the Department's view, political subdivisions that 
are the population size of small states could, in the right 
circumstances, have similar capacity and resources as their state 
counterparts of the same size. For that reason, the Department has 
decided not to flatly exclude such entities from coverage under the 
safe harbor. At the same time, however, the Department notes that 
states necessarily have a breadth of responsibilities, administrative 
systems, and experience that may not be matched by political 
subdivisions of equal size. Accordingly, the final regulation also 
adopts the demonstrated capacity test for these subdivisions, as 
discussed below. Together these tests ensure a high likelihood that 
qualified political subdivisions will have sufficient resources, 
experience, and capacity to safely and competently establish and 
oversee a payroll deduction savings programs. The application of both 
the size restriction and the demonstrated capacity test reduce the 
possibility that employers would be subject to a multiplicity of 
overlapping political subdivision programs. The population test 
directly advances this important policy interest by limiting the 
universe of political subdivisions potentially eligible for the safe 
harbor from approximately 40,000 general purpose political subdivisions 
to a far smaller number. As of 2015, there were approximately 136 
general-purpose political subdivisions with populations equal to or 
greater than the population of Wyoming.
    Even though the final regulation excludes smaller political 
subdivisions from the safe harbor, the Department acknowledges that 
cities and counties are not per se incapable of competently overseeing 
a payroll deduction savings program solely because they fail the final 
rule's population test. Indeed, many localities that fall below the 
population threshold may have sufficient experience, capacity, and 
resources to safely establish and oversee payroll deduction savings 
programs in a manner that sufficiently protects employees. 
Nevertheless, based on the public record, the Department's view 
continues to be that smaller political subdivisions do not, in general, 
have experience, resources, and capacity comparable to that of the 
least populous state, and therefore the Department chooses not to 
extend safe harbor status to such localities and their programs. It is 
also important to note that the final regulation does not--and the 
Department could not--bar smaller localities from establishing and 
maintaining payroll deduction savings programs for private-sector 
employees that fall outside the Department's safe harbor regulation.
    As noted above, the Department did make one technical improvement 
to the proposed population test. Public comments raised concerns about 
the possibility that fluctuating populations could cause a qualified 
political subdivision to fall below the required population threshold--
and therefore drop outside the safe harbor--after it had already 
enacted a payroll deduction savings program. To eliminate this 
possibility and its attendant uncertainty, the final rule contains new 
language to clarify that such cities and counties would not lose their 
qualified status merely because of population fluctuations. In that 
regard, the final regulation adds to paragraph (h)(4)(ii) the phrase 
``[a]t the time of the enactment of the political subdivision's payroll 
deduction savings program.''
    Finally, some commenters suggested that, because population size is 
only a rough indicator of a political subdivision's capacity and 
ability to safely operate a payroll deduction savings program, the 
Department should consider pairing the population test with some other 
more refined test or indicator. As mentioned above, the Department 
agrees that the population test could be improved by being paired with 
an additional criterion to gauge whether a sufficiently-large political 
subdivision should nonetheless fail to qualify under the safe harbor 
for lack of experience. The section below discusses the changes made to 
accomplish this result.

D. Demonstrated Capacity Test

    The final regulation adopts a ``demonstrated capacity'' test in 
addition to the population test. As noted in the preceding sections, 
the population test removed from the safe harbor a significant number 
of smaller political subdivisions based solely on their size. The 
demonstrated capacity test, on the other hand, focuses on a political 
subdivision's ability to operate a payroll deduction savings program by 
requiring direct and objectively verifiable evidence of a political 
subdivision's experience, capacity, and resources to operate or 
administer such programs. The two tests (population test and 
demonstrated capacity test) combine to ensure a strong likelihood that 
political subdivisions that meet the safe harbor have sufficient 
experience, capacity, and resources to safely establish and oversee 
payroll deduction savings programs in a manner that sufficiently 
protects private-sector employees and that would not require employer 
involvement beyond the limits of the safe harbor regulation.
    The Department adopted this new test in response to a significant 
number of commenters that strongly support this idea. These commenters 
encouraged the Department to consider two different approaches for 
developing a demonstrated capacity test. The first suggested approach 
focuses on whether the political subdivision has implemented and 
administers a retirement plan for its own employees.\29\ The second 
suggested approach focuses on whether the political subdivision has an 
existing infrastructure for assessing and collecting income, sales, use 
or other similar taxes.\30\ The apparent rationale behind these 
suggested approaches is that political subdivisions that are 
sophisticated enough to operate a retirement plan or levy and collect 
their own taxes should possess sufficient experience, capacity, and 
resources to safely establish and oversee a payroll deduction savings 
program. In addition, retirement plan administration and tax 
administration entail administrative activities that are highly 
comparable to the type of administrative activity that would be 
necessary to establish and oversee a successful

[[Page 92644]]

payroll deduction savings program for private-sector employees.
---------------------------------------------------------------------------

    \29\ See, e.g., Comment Letter #16 (Investment Company 
Institute).
    \30\ See, e.g., Comment Letter #19 (Georgetown University Center 
for Retirement Initiatives).
---------------------------------------------------------------------------

    The final regulation adopts the suggested plan sponsorship approach 
as the sole basis for a demonstrated capacity test. Thus, in order to 
be qualified for the safe harbor under the final regulation, a 
political subdivision must implement and administer its own retirement 
plan. The Department agrees with the commenters that administering a 
public retirement plan for the political subdivision's own employees is 
sufficiently similar to establishing and overseeing a payroll deduction 
savings program for employees of other entities that successfully 
performing the former is strong evidence of an ability to successfully 
perform the latter. Both endeavors require, for example, receiving 
contributions, custodianship, investing assets or selecting investment 
options, deciding claims, furnishing account statements, meeting 
reporting requirements, distributing benefit payments, or selecting and 
overseeing others to perform some or all of these tasks. A political 
subdivision that does not implement and administer a retirement plan 
for its own employees, on the other hand, will fail to qualify under 
the safe harbor even if it passes the population test and all the other 
safe harbor conditions set forth in the qualified political subdivision 
definition.
    The Department declined to adopt as part of the demonstrated 
capacity test the second of the commenters' suggested approaches, i.e., 
the existence of a tax infrastructure. In support of that approach, the 
commenters suggested that a political subdivision's levying and 
collecting its own income, wage, or similar taxes may provide evidence 
that the political subdivision has the capacity to establish and 
oversee payroll deduction savings programs. The commenters noted that 
effective tax and program administration require political subdivisions 
to safely and efficiently exchange data and money with employers in a 
timely and ongoing fashion, usually by way of electronic payroll and 
other systems. In the Department's view, however, plan sponsorship is a 
better and more directly relevant indicator of a subdivision's ability 
to sponsor and administer a retirement savings program. Additionally, 
the Department is unable to verify the precise number of political 
subdivisions that both levy and collect their own income, wage, or 
similar taxes. Without such information, the Department is unable to 
assess the effect of this suggested approach on the safe harbor's 
scope. For these reasons, the Department declined to include this 
approach in the final rule's demonstrated capacity test.
    Finally, the new test does not prescribe the type or size of plan a 
political subdivision must implement and administer in order to meet 
the safe harbor's new ``plan administration'' criterion. Thus, a 
political subdivision can satisfy this criterion by administering a 
defined benefit plan, an individual account plan, or both. Although a 
number of commenters suggested that the Department consider a plan size 
requirement, such as a minimum level of assets under management or 
number of participants covered, the Department declines to adopt these 
suggestions in the final rule.\31\ As long as the plan provides 
retirement benefits for some or all of the political subdivision's 
employees, and provided that the political subdivision administers the 
plan directly or is responsible for selecting and overseeing others 
performing plan administration, the retirement plan is a ``plan, fund, 
or program'' within the meaning of paragraph (h)(4)(ii)(C) of the final 
regulation.
---------------------------------------------------------------------------

    \31\ See, e.g., Comment Letter #9 (New York City Comptroller).
---------------------------------------------------------------------------

E. Consumer Protections

    The final rule eliminates lingering ambiguity regarding the 
requirement in proposed paragraph (h)(1)(iii) that the state or 
political subdivision must assume responsibility for the security of 
payroll deductions. The Department previously attempted to clarify this 
requirement in the preamble to the final regulation dealing with state 
payroll deduction savings programs.\32\ Despite those earlier efforts, 
commenters on the proposal continued to ask the Department to further 
clarify the meaning of this requirement. A number of commenters 
specifically focused on the need to clarify and strengthen proposed 
paragraph (h)(1)(iii), with some specifically stressing the importance 
of clear and strong standards protecting payroll deductions.\33\ Many 
commenters also raised a generic concern that the proposal does not 
contain sufficient consumer protections as compared to the protections 
ERISA would offer.\34\ The Department received similar comments on the 
2015 proposed rule for state payroll deduction savings programs. Many 
of those commenters specifically referenced and supported a rule 
similar to the Department's regulation at 29 CFR 2510.3-102 (defining 
when participant contributions become ``plan assets'' for the purpose 
of triggering ERISA's protections).
---------------------------------------------------------------------------

    \32\ 81 FR 59470 (August 30, 2016).
    \33\ See, e.g., Comment Letter #12 (AFL-CIO); Comment Letter #16 
(ICI) (incorporating comments from January 19, 2016 letter 
pertaining to state payroll deduction savings programs); Comment 
Letter #22 (American Council of Life Insurers) (``The inclusion of a 
payroll deduction transmission timing requirement in a safe harbor--
especially one that provides for auto-enrollment--will provide a 
powerful incentive for those seeking to use the safe harbor 
protection to ensure that employee payroll deductions are 
transmitted safely, appropriately, and in a timely manner as non-
compliance will subject the plan to ERISA's Title I 
requirements.'').
    \34\ See, e.g., Comment Letter #12 (AFL-CIO); Comment Letter #16 
(ICI); Comment Letter #17 (AFSCME); Comment Letter #18 (U.S. Chamber 
of Commerce); Comment Letter #22 (American Council of Life 
Insurers); Comment Letter #26 (Economic Studies at Brookings).
---------------------------------------------------------------------------

    In response to these concerns, the final rule clarifies and 
strengthens the requirement that states and political subdivisions must 
assume responsibility for the security of payroll deductions. 
Specifically, paragraph (h)(1)(iii) contains a new sub-clause 
clarifying that this requirement--to assume responsibility for the 
security of payroll deductions--includes two subsidiary requirements. 
The first subsidiary requirement is that states and political 
subdivisions must require that employers promptly transmit wage 
withholdings to the payroll deduction savings program. The second 
subsidiary requirement is that states and political subdivisions must 
provide an enforcement mechanism to ensure employer compliance with the 
first subsidiary requirement. These new requirements protect employees 
by ensuring that their payroll deductions are transmitted to their IRAs 
as quickly as possible, where they become subject to applicable 
Internal Revenue Code provisions, including the protective prohibited 
transaction provisions found in section 4975 of the Code.\35\ States 
and political subdivisions may meet the new requirements in a variety 
of ways, including, for example, through legislation, ordinance, or 
administrative rulemaking.
---------------------------------------------------------------------------

    \35\ See 81 FR 59469 (August 30, 2016).
---------------------------------------------------------------------------

    The final regulation does not prescribe what is meant for wage 
withholdings to be transmitted ``promptly.'' Instead, each state and 
qualified political subdivision is best positioned to calibrate the 
appropriate timeframe for its own program. Nevertheless, in the 
interest of providing certainty to states and political subdivisions, 
the final regulation contains a special safe harbor for promptness. 
Paragraph (h)(5) provides that, for purposes of paragraph (h)(1)(iii), 
employer wage withholdings are ``deemed to be transmitted promptly'' if 
such amounts are

[[Page 92645]]

transmitted to the program as of the earliest date on which such 
contributions can reasonably be segregated from the employer's general 
assets, but in no event later than the last day of the month following 
the month in which such amounts would otherwise have been payable to 
the employee in cash. This standard is closely aligned with the rules 
in 29 CFR 2510.3-102 for plans involving SIMPLE IRAs, as described in 
section 408(p) of the Internal Revenue Code.\36\ Paragraph (h)(5) is 
not, however, the only method of complying with the promptness 
requirement in paragraph (h)(1)(iii) of the final regulation.
---------------------------------------------------------------------------

    \36\ 29 CFR 2510.3-102(b)(2). See, e.g., DOL Advisory Opinion 
83-25A (May 24, 1983).
---------------------------------------------------------------------------

F. Overlap

    The proposed rule limited the safe harbor to political subdivisions 
that are not located in a state that establishes a statewide retirement 
savings program for private-sector employees.\37\ The purpose behind 
this criterion was to reduce the number of political subdivisions that 
could potentially meet the safe harbor, thereby mitigating the 
potential for overlap or duplication between political subdivision 
programs and state programs. In the proposal's preamble, the Department 
interpreted the term ``state-wide retirement savings program'' to 
include retirement savings programs described in the Department's 
Interpretive Bulletin found at 29 CFR 2509.2015-02, such as the 
voluntary marketplace and exchange models adopted by Washington State 
and New Jersey.\38\
---------------------------------------------------------------------------

    \37\ See paragraph (h)(4)(iii) of the proposed rule; 81 FR 
59581, 92 (Aug. 30, 2016).
    \38\ 81 FR 59581, 85 (Aug. 30, 2016).
---------------------------------------------------------------------------

    A number of commenters expressed concern that including non-
mandatory state programs within this limiting criterion is overly 
broad.\39\ The commenters noted that where a state establishes the 
types of voluntary programs described in the Interpretive Bulletin, 
such as voluntary marketplaces and exchanges, there is little risk that 
employers would be subject to overlapping requirements or duplication 
because statewide information marketplaces and exchanges are merely 
vehicles for providing employees access to information about retirement 
savings options.\40\ Thus, such programs would not impose upon 
employers any obligations that might conflict or overlap with a 
political subdivision's mandatory payroll deduction savings program. 
These commenters urged the Department to clarify in the final rule that 
a political subdivision is precluded from meeting this safe harbor 
condition only when the political subdivision is in a state that 
establishes a mandatory statewide payroll deduction savings program 
that requires employers to participate.
---------------------------------------------------------------------------

    \39\ See, e.g., Comment Letter #3 (Washington State Department 
of Commerce); Comment Letter #4 (Seattle City Councilmember Tim 
Burgess); Comment Letter #7 (Economic Opportunity Institute); 
Comment Letter #9 (New York City Comptroller); Comment Letter #14 
(AARP); Comment Letter #17 (AFSCME); Comment Letter #19 (Georgetown 
University Center for Retirement Initiatives); Comment Letter #20 
(New York City Mayor); Comment Letter #26 (Economic Studies at 
Brookings).
    \40\ See Comment Letter #9 (New York City Comptroller).
---------------------------------------------------------------------------

    Commenters also expressed concern that the proposed rule's 
provision excluding a political subdivision from the safe harbor if the 
state subsequently enacts its own payroll deduction savings program 
could, in certain circumstances, result in legitimate political 
subdivision programs automatically dropping out of the safe harbor.\41\ 
Specifically, the commenters pointed out that under the proposed rule, 
a political subdivision could be ``qualified'' at the time it enacts a 
payroll deduction savings program, but then suffer automatic 
disqualification if its state subsequently enacts a statewide 
program.\42\ This is because the proposed rule excludes from the safe 
harbor any political subdivision that is in a state that ``enacts'' its 
own program, without regard to whether the political subdivision had 
enacted its own program before the state acted.
---------------------------------------------------------------------------

    \41\ See, e.g., Comment Letter #4 (Seattle City Councilmember 
Tim Burgess); Comment Letter #8 (American Retirement Association).
    \42\ See Comment Letter #8 (American Retirement Association); 
Comment Letter #20 (New York City Mayor).
---------------------------------------------------------------------------

1. Clarifying ``Statewide Retirement Savings Program''
    The Department agrees with the commenters that this criterion was 
overly broad. Accordingly, the final rule modifies the proposed rule to 
clarify that in order to be eligible for the safe harbor a political 
subdivision must not be located in a state that has enacted a mandatory 
statewide payroll deduction savings program for private sector 
employees. See Sec.  2510.3(h)(4)(ii)(B). This modified language will 
continue to exclude from the safe harbor political subdivisions located 
in states (such as California, Connecticut, Illinois, Maryland, and 
Oregon) that have enacted a mandatory state payroll deduction savings 
program, as well as other political subdivisions that seek to enact a 
safe harbor program after the state in which they are located has 
already done so. Revised paragraph (h)(4)(ii)(B) does not, however, 
exclude from the safe harbor political subdivisions located in states 
that have enacted only voluntary programs such as those Massachusetts, 
New Jersey, and Washington State had enacted as of the date this final 
rule was published.\43\
---------------------------------------------------------------------------

    \43\ Mass. Gen. Laws ch. 29, Sec.  64E (2012); New Jersey Small 
Business Retirement Marketplace Act, Public Law 2015, ch. 298; 
Washington State Small Business Retirement Savings Marketplace Act, 
Wash. Rev. Code Sec. Sec.  43.330.730-750 (2015).
---------------------------------------------------------------------------

2. Timing--Political Subdivisions Enacting Programs Before the State
    The Department agrees with commenters that an otherwise-qualified 
political subdivision that has relied on the safe harbor to enact a 
payroll deduction savings program should not automatically lose its 
qualified status when its state subsequently enacts its own program. To 
allow an otherwise-qualified, pre-existing program to precipitously 
drop outside the safe harbor due to actions outside of its control 
would impose upon affected employers and participants undesirable 
uncertainty and complexities.\44\ The final rule therefore revises 
paragraph (h)(4) to exclude from the safe harbor political subdivisions 
that are located in a state that already has enacted a mandatory 
statewide payroll deduction savings program before the political 
subdivision enacts its own program. Thus, if a state enacts such a 
program after the political subdivision has done so, the political 
subdivision does not automatically fall outside the safe harbor. 
Rather, in such instances it is incumbent upon the state and the 
political subdivision to determine how to coordinate the potentially 
overlapping programs in a way that does not require employer 
involvement beyond the limits of the safe harbor regulation, whether 
that means carving out the political subdivision from the state 
program, incorporating the political subdivision's program into the 
state program, or employing some other alternative.
---------------------------------------------------------------------------

    \44\ See, e.g., Comment Letter #8 (American Retirement 
Association); Comment Letter #20 (New York City Mayor).
---------------------------------------------------------------------------

3. Elimination of Overlapping Political Subdivision Programs
    Some commenters asked the Department to clarify how the safe harbor 
would apply to political subdivisions that each enact a mandatory 
payroll deduction savings program for employees within their 
potentially overlapping jurisdictions. Some of those commenters further 
suggested that the Department should

[[Page 92646]]

establish a rule that the larger political subdivision's program (e.g., 
a county program) should take priority over any political subdivision 
program within its jurisdiction (e.g., a city program), regardless of 
which program was first enacted.\45\
---------------------------------------------------------------------------

    \45\ See, e.g., Comment Letter #6 (American Payroll 
Association); Comment Letter #15 (American Benefits Council); 
Comment Letter #20 (New York City Mayor); Comment Letter #23 
(Financial Services Institute).
---------------------------------------------------------------------------

    As a practical matter, and in view of the fact that only three 
political subdivisions have expressed a potential interest in 
establishing payroll deduction savings programs, the Department does 
not anticipate that there will be overlapping programs among political 
subdivisions. After careful deliberation, however, the Department 
decided to address concerns regarding the potential for conflicting 
requirements by modifying the proposed rule to preclude potentially 
overlapping political subdivision programs. As explained in the 
proposed rule's preamble, the Department has taken substantial measures 
to mitigate the potential that overlapping programs could 
simultaneously meet the safe harbor,\46\ but there remains some 
potential for overlap. To eliminate any remaining potential for 
overlap, the Department has decided to extend the first-in-time 
coordination rule (the provisions of paragraph (h)(4)(ii)(B) of the 
rule that exclude from the safe harbor an otherwise qualified political 
subdivision when the state in which it is located has already enacted a 
mandatory payroll deduction savings program) to apply in situations 
where a mandatory payroll deduction savings program has already been 
enacted in another political subdivision. Thus, to the extent that a 
political subdivision meets the other conditions to be qualified but 
has a geographic overlap with another political subdivision that has 
already enacted a mandatory payroll deduction saving program for 
private-sector employees, the former political subdivision would be 
precluded from enacting a mandatory payroll deduction saving program 
that would satisfy the safe harbor. The Department has determined that 
this first-in-time rule will eliminate the few remaining situations in 
which the possibility of overlap among political subdivisions might 
otherwise exist.
---------------------------------------------------------------------------

    \46\ See 81 FR 59581, 59585-86.
---------------------------------------------------------------------------

G. Petition Process

    Some commenters suggested that political subdivisions could 
petition or apply to the Department for an individual opinion or 
decision regarding whether or not the political subdivisions qualify 
for the safe harbor. These commenters propose that such a process could 
be available for political subdivisions that meet at least some of the 
four conditions in paragraph (h)(4) of the final regulation, but fail 
to meet all of the conditions. For example, the process could be 
available for a city or county that satisfies the demonstrated capacity 
test but not the population test, or vice-versa. These commenters 
envision a process in which the petitioner or applicant would present 
to the Department its best case for safe harbor status using a list of 
factors or criteria to be developed by the Department. This approach 
would give ``close-call'' cities and counties an avenue to obtain 
qualified status, while reserving to the Department the ability to deny 
potentially unsafe or improper applicants.
    The Department declines to adopt this suggestion. The qualified 
political subdivision definition in paragraph (h)(4) of the final rule 
consists of four criteria, each of which is a bright-line measure that 
is either met or not. These objective criteria enable interested 
parties to readily determine whether or not they meet the definition. 
The commenters' suggested petition or application process, by contrast, 
is inherently subjective, and thus runs entirely counter to the 
Department's objective approach. Moreover, under the commenters' 
proposed model, the outcome in any particular case would depend on, 
among other things, the Department's view of the relevant facts and its 
weighing and balancing of a given list of factors or criteria. The 
present public record provides little, if any, direction on the type of 
criteria or factors the Department could or should adopt under such an 
approach, or whether each individual criterion or factor should be 
given equal weight. Apart from these significant shortcomings, the 
commenters' suggested proposal also raises Departmental budgetary and 
resource issues that are beyond the scope of this rulemaking.

H. Responsibility and Liability for Program Operations

    The proposal required that states and political subdivisions assume 
and retain full responsibility for the payroll deduction savings 
programs they implement and administer. More specifically, the proposal 
provided that states and political subdivisions must assume 
responsibility (i) for investing employee savings or for selecting 
investment alternatives; (ii) for the security of payroll deductions 
and employee savings; and (iii) for operating and administering their 
programs, even if they delegate those functions to service or 
investment providers.\47\ The proposal thus made it clear that in order 
for a program to qualify for the safe harbor, states and political 
subdivisions must assume and retain responsibility for operating and 
administering their programs.
---------------------------------------------------------------------------

    \47\ See Sec. Sec.  2510.3-2(h)(1)(ii), (h)(1)(iii), and 
(h)(2)(ii), respectively.
---------------------------------------------------------------------------

    At least one commenter requested that the Department clarify what 
it means for a state or political subdivision to assume and retain full 
responsibility for program operations, especially where the state or 
political subdivision chooses to delegate some of its responsibilities 
to third-party experts.\48\ In the commenter's view, this requirement 
effectively prevents states and political subdivisions from delegating 
responsibilities and liabilities to third-party experts who are willing 
to assume such duties and liabilities. This commenter argues that this 
provision exposes states and political subdivisions to broader 
responsibility--and greater liability for third-party management--than 
they would have under ERISA's fiduciary standards, or possibly even 
under state statutes or common law. The commenter therefore asked the 
Department to modify the proposal to clarify that states and political 
subdivisions can delegate some of their management responsibility and 
attendant liability to third-party service or investment providers, on 
the condition that the state or political subdivision prudently selects 
and appropriately monitors those service providers.
---------------------------------------------------------------------------

    \48\ See Comment Letter #20 (New York City Mayor).
---------------------------------------------------------------------------

    The final regulation contains no such modification. The essence of 
the regulation's requirement that states and political subdivisions 
assume and retain full responsibility for operating and administering 
their payroll deduction savings programs is simply that states and 
political subdivisions must retain ultimate authority over those 
programs. Such authority includes, for example, determining whether or 
not to hire and fire qualified third-party service providers, and 
determining the scope of those service providers' duties. In drafting 
this rule, the Department fully anticipated that states and political 
subdivisions might choose to delegate program administration to 
qualified service providers that the states or political subdivisions 
oversee.\49\ In that

[[Page 92647]]

regard, the Department recognizes that prudently-selected third parties 
with relevant program administration and investment experience and 
expertise may, in many circumstances, be better equipped than a state 
or political subdivision to discharge the specialized duties associated 
with operating and managing payroll deduction savings programs. Thus, 
given that this requirement does not preclude sponsoring states and 
political subdivisions from delegating or assigning some or all of 
their administrative responsibilities to third-party service providers, 
states and political subdivisions would not lose their safe harbor 
status by doing so. It is important to note, however, that this 
requirement does not in any way govern the assignment of liability 
between states and political subdivisions and those to whom they 
delegate such responsibilities. Rather, issues of liability, such as 
whether and how states or political subdivisions and their service 
providers allocate liabilities among themselves, are matters for state 
and local law, and for applicable provisions of the Internal Revenue 
Code.
---------------------------------------------------------------------------

    \49\ See Sec.  2510.3-2(h)(2)(ii) (states and political 
subdivisions may, without falling outside the safe harbor, utilize 
service or investment providers to operate and administer their 
payroll deduction savings programs as long as the state or political 
subdivision retains full responsibility for operating and 
administering the program).
---------------------------------------------------------------------------

I. Timing

    A few commenters asked the Department to delay extending the safe 
harbor to qualified political subdivisions until after the Department 
has had a chance to accumulate and fully analyze experience data on 
state-sponsored payroll deduction savings programs.\50\ Among the 
concerns these commenters raised are the potential for overlapping 
programs; the uncertainty that a political subdivision could establish 
a program and then drop out of the safe harbor due to fluctuating 
populations; political subdivisions' assumed inferior level of 
financial sophistication, expertise and resources to properly manage 
payroll deduction savings programs; the inherently subjective nature of 
attempting to differentiate between sophisticated and unsophisticated 
political subdivisions; and a perceived lack of consumer protections. 
The commenters also suggested that a delay in implementing the final 
rule would allow more time for states to establish statewide programs, 
thereby alleviating the need for potentially overlapping political 
subdivisions to establish separate programs.
---------------------------------------------------------------------------

    \50\ Comment Letter #8 (American Retirement Association); 
Comment Letter #15 (American Benefits Council); Comment Letter #18 
(U.S. Chamber of Commerce).
---------------------------------------------------------------------------

    Although the Department declines the commenters' requests to delay 
implementing this final rule, the final rule reflects that the 
Department did take the commenters' concerns into account. As noted 
above in this preamble, the final rule addresses the commenters' 
concerns about potentially overlapping programs by adopting a new 
condition that further reduces the number of political subdivisions 
that can meet the safe harbor. That condition requires that in order to 
be eligible for the safe harbor a political subdivision must already 
administer a public-employee retirement program. The Department 
believes that this condition--which a number of commenters supported--
measures, in objective terms, a political subdivision's ability to 
operate and administer a payroll deduction savings program for private-
sector employees. The final rule also clarifies that an otherwise-
qualified political subdivision will not automatically drop outside the 
safe harbor due to a drop in population, and it adds important consumer 
protections by requiring that employers remit employee wage 
withholdings to state and political subdivision programs in a timely 
manner. Moreover, the final rule does not preclude a state from moving 
forward with establishing its own payroll deduction savings program 
simply because a political subdivision within its borders has already 
done so.
    The Department also notes that one very large political subdivision 
has already taken steps to establish a payroll deduction savings 
program for its private-sector employee residents, and, based on the 
comments the Department has received, it seems two others have 
expressed a potential interest in doing so.\51\ As noted throughout 
this preamble, facilitating political subdivisions' ability to 
encourage their residents to save for retirement by enrolling them in 
payroll deduction savings programs furthers important state, federal, 
and Departmental goals and policies. For these reasons, and considering 
the modifications the Department already made to the final rule, the 
Department judges it appropriate to implement the final rule at this 
time.
---------------------------------------------------------------------------

    \51\ See, e.g., The New York City Nest Egg: A Plan for 
Addressing Retirement Security in New York City, Office of the New 
York City Comptroller (October 2016).
---------------------------------------------------------------------------

III. Regulatory Impact Analysis

A. Executive Order 12866 and 13563 Statement

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing and streamlining rules, and 
of promoting flexibility. It also requires federal agencies to develop 
a plan under which the agencies will periodically review their existing 
significant regulations to make the agencies' regulatory programs more 
effective or less burdensome in achieving their regulatory objectives.
    Under Executive Order 12866, the Office of Management and Budget 
(OMB) must determine whether a regulatory action is ``significant'' and 
therefore subject to the requirements of the Executive Order and review 
by the OMB. Section 3(f) of the Executive Order defines a ``significant 
regulatory action'' as an action that is likely to result in a rule (1) 
having an annual effect on the economy of $100 million or more, or 
adversely and materially affecting a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or state, local or tribal governments or communities (also 
referred to as an ``economically significant'' action); (2) creating 
serious inconsistency or otherwise interfering with an action taken or 
planned by another agency; (3) materially altering the budgetary 
impacts of entitlement grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) raising novel 
legal or policy issues arising out of legal requirements, the 
President's priorities, or the principles set forth in the Executive 
Order.
    OMB has determined that this regulatory action is not economically 
significant within the meaning of section 3(f)(1) of the Executive 
Order. However, it has determined that the action is significant within 
the meaning of section 3(f)(4) of the Executive Order. Accordingly, OMB 
has reviewed the final rule and the Department provides the following 
assessment of its benefits and costs.

B. Background

    As discussed in detail above in Section I of this preamble, several

[[Page 92648]]

commenters on the 2015 proposal \52\ urged the Department to expand the 
safe harbor for state payroll deduction savings programs to include 
payroll deduction savings programs established by state political 
subdivisions. In particular, the commenters argued that an expansion of 
the safe harbor is necessary, because otherwise the safe harbor would 
not benefit employees of employers in political subdivisions that are 
located in states that have not adopted a statewide program and 
expressed a strong interest in establishing such programs.
---------------------------------------------------------------------------

    \52\ See 80 FR 72006 (November 18, 2015).
---------------------------------------------------------------------------

    In response, on August 30, 2016, the Department published a 
proposed rule \53\ that would amend the 2016 final safe harbor 
regulation for state programs to include within its scope laws and 
programs established by certain state political subdivisions. The 
Department received and carefully reviewed the public comments 
submitted in response to the proposal. The Department now is publishing 
a final rule that amends paragraph (h) of Sec.  2510.3-2 to cover 
payroll deduction savings programs of qualified political subdivisions 
defined in paragraph (h)(4) of the final rule. The Department discusses 
the benefits and costs attributable to the final rule below.
---------------------------------------------------------------------------

    \53\ See 81 FR 59581 (August 30, 2016).
---------------------------------------------------------------------------

C. Benefits and Costs

    In analyzing benefits and costs associated with this final rule, 
the Department focuses on the direct effects, which include both 
benefits and costs directly attributable to the rule. These benefits 
and costs are limited, because as stated above, the final rule would 
merely establish a safe harbor describing the circumstances under which 
qualified political subdivisions with authority under state law could 
establish payroll deduction savings programs that would not give rise 
to ERISA-covered employee pension benefit plans. It does not require 
qualified political subdivisions to take any actions nor employers to 
provide a retirement savings programs to their employees.
    The Department also addresses indirect effects associated with the 
final rule, which include (1) potential benefits and costs directly 
associated with the requirements of qualified political subdivision 
payroll deduction savings programs, and (2) the potential increase in 
retirement savings and potential cost burden imposed on covered 
employers to comply with the requirements of such programs. Indirect 
effects vary by qualified political subdivisions depending on their 
program requirements and the degree to which the final rule might 
influence how political subdivisions design their payroll deduction 
savings programs.
    Although the Department estimates that approximately 51 political 
subdivisions are potentially eligible to use this final rule,\54\ the 
Department understands that many qualified political subdivisions may 
not be interested in establishing payroll deduction savings programs. 
As noted above, commenters have identified only three cities--New York 
City, Philadelphia, and Seattle--as having any potential interest to 
date. Therefore, the direct benefits and direct costs attributable to 
this final rule could be quite limited.
---------------------------------------------------------------------------

    \54\ This estimate is based on the population estimates from the 
U.S. Census Bureau, the Census of Government data from the U.S. 
Census Bureau about defined benefit (DB) plans for local government 
employees, and BrightScope data about defined contribution (DC) 
plans for local government employees. For qualified political 
subdivision with overlapping boundaries, it counts only one per 
combination as the final rule precludes overlapping programs.
---------------------------------------------------------------------------

1. Direct Benefits
    The Department believes that political subdivisions and other 
stakeholders would directly benefit from expanding the scope of the 
Department's final safe harbor regulation to include payroll deduction 
savings programs established by qualified political subdivisions. As 
with the states, this action will provide political subdivisions with 
clear guidelines to determine the circumstances under which programs 
they create for private-sector workers would not give rise to the 
establishment of ERISA-covered plans. The Department expects that the 
final rule will reduce legal costs, including litigation costs 
political subdivisions might otherwise incur, by (1) removing 
uncertainty about whether such political subdivision payroll deduction 
savings programs give rise to the establishment of plans that are 
covered by Title I of ERISA, and (2) creating efficiencies by 
eliminating the need for multiple political subdivisions to incur the 
same costs to determine that their programs would not give rise to the 
establishment of ERISA-covered plans. However, these benefits will be 
limited to qualified political subdivisions meeting all criteria set 
forth in this final rule. Those governmental units of a state, 
including any city, county, or similar governmental body that are not 
eligible to use the safe harbor may incur legal costs if they elect to 
establish their own payroll deduction savings programs.
    In order to constitute a ``qualified political subdivision,'' the 
proposed rule required the political subdivision to have a population 
equal to or greater than the population of the least populous state. 
Several commenters asserted that based on this provision, it is 
possible that fluctuating populations could cause a previously 
qualified political subdivision to fall below the required population 
threshold and fall outside the safe harbor after it has established its 
program. To eliminate this possibility and reduce uncertainty, the 
Department clarified in the final rule that political subdivisions 
satisfying the population threshold when they enact a payroll deduction 
savings program would not lose their qualified status solely due to 
subsequent population fluctuations. This change will especially benefit 
political subdivisions close to the population threshold and encourage 
them to establish payroll deduction savings programs, because they will 
not have to continuously monitor their population if their population 
is equal to or greater than the population of the least populous state 
when their program is enacted.
    In response to comments, the final rule clarifies that a qualified 
political subdivision would not automatically lose its qualified 
political subdivision status if the state establishes a payroll 
deduction savings program after the political subdivision has done so. 
Political subdivisions will benefit from this provision, because they 
will not have to be concerned that their programs will fall outside the 
safe harbor if the state subsequently establishes a program. The 
Department notes that in such situations, it expects that the state and 
qualified political subdivision will coordinate potentially overlapping 
programs to ensure a smooth transition. Although they may incur some 
costs associated with communication and coordination, these costs would 
be smaller compared to the costs that employers and participants may 
face if the qualified political subdivision's program experiences any 
disruptions or unexpected changes due to the lack of communication and 
coordination between the state and qualified political subdivision.
    The Department estimates that there are approximately eight 
combinations where political subdivisions could potentially establish 
conflicting payroll deduction savings programs due to overlapping 
boundaries. In the final rule, the Department mitigated the possibility 
that political subdivisions with overlapping geographic boundaries 
could each become qualified political subdivisions by providing that a

[[Page 92649]]

political subdivision that geographically overlaps with another 
political subdivision cannot be qualified if the overlapping 
subdivision already has enacted a mandatory payroll deduction savings 
program for private sector employees. Thus, the final rule benefits 
employers by providing certainty that they will not be subject to a 
multiplicity of overlapping political subdivision programs. It also 
benefits qualified political subdivisions by providing clarity 
regarding the circumstances under which political subdivisions with 
overlapping boundaries can enact payroll deduction savings programs 
that qualify for the safe harbor.
    The final rule also clarifies the requirement that states and 
political subdivisions assume responsibility for the security of 
payroll deduction contributions in paragraph (h)(1)(iii). A number of 
commenters specifically focused on the need to clarify and strengthen 
this provision and some specifically stressed the importance of clear 
and strong standards protecting payroll deductions. The Department 
received similar comments on the 2015 proposed rule for state payroll 
deduction savings programs. In response to these comments, the 
Department buttressed paragraph (h)(1)(iii) in the final rule by 
including a new sub-clause clarifying that states and political 
subdivisions must (1) require that employers promptly transmit wage 
withholdings to the payroll deduction savings program, and (2) provide 
an enforcement mechanism to ensure that withheld wages are promptly 
transmitted.
    These new requirements will benefit employees by ensuring that 
their payroll deductions are transmitted as quickly as possible to 
their IRAs, where they become subject to applicable Internal Revenue 
Code provisions, including the protective prohibited transaction 
provisions found in section 4975 of the Code. States and political 
subdivisions may adopt the new required protections in a variety of 
ways, including, for example, through legislation, ordinance, or 
administrative rulemaking. The provision also benefits states and 
political subdivisions that create payroll deduction savings programs 
and employers by providing clarity regarding the specific actions that 
are necessary to comply with the requirement for states and political 
subdivisions to assume responsibility for the security of payroll 
deductions.\55\
---------------------------------------------------------------------------

    \55\ The final regulation does not specifically define what is 
meant for wage withholdings to be transmitted ``promptly.'' Instead, 
each state and qualified political subdivision is best positioned to 
calibrate the appropriate timeframe for its own program. 
Nevertheless, in the interest of providing certainty to states and 
political subdivisions, the final regulation added paragraph (h)(5) 
to the rule, which contains a special safe harbor for promptness. 
For more detailed information, see the discussion about consumer 
protection in the preamble.
---------------------------------------------------------------------------

    The Department notes that the final rule would not prevent 
political subdivisions from identifying and pursuing alternative 
policies, outside of the safe harbor, that also would not require 
employers to establish or maintain ERISA-covered plans. Thus, while the 
final rule would reduce uncertainty about political subdivision 
activity within the safe harbor, it would not impair political 
subdivision activity outside of it. This final regulation is a safe 
harbor and as such, it does not require employers to participate in 
qualified political subdivision payroll deduction savings programs; nor 
does it purport to define every possible program that does not give 
rise to the establishment of ERISA-covered plans.
2. Direct Costs
    The final rule does not require any new action by employers or the 
political subdivisions. It merely establishes a safe harbor describing 
certain circumstances under which qualified political subdivision-
required payroll deduction savings programs would not give rise to an 
ERISA-covered employee pension benefit plan and, therefore, would 
reduce the risks of being preempted by ERISA. Political subdivisions 
may incur legal costs to analyze the rule and determine whether their 
programs fall within the safe harbor. However, the Department expects 
that these costs will be less than the costs that would be incurred in 
the absence of the final rule. If a qualified political subdivision 
interested in developing its own payroll deduction savings program 
overlaps with another qualified political subdivision, it would also 
need to monitor the activities by the qualified political subdivision 
with an overlapping boundary and communicate with it to avoid any 
potential complications in relying on this safe harbor rule as the 
final rule precludes overlapping payroll deduction savings programs. 
Only one qualified political subdivision, out of approximately eight 
possible combinations, with a potentially overlapping boundary 
expressed interest in establishing its own payroll deduction savings 
program to the Department. Thus, the Department expects the monitoring 
and communication costs to be relatively small.
    Qualified political subdivisions may incur administrative and 
operating costs including mailing and form production costs. These 
potential costs, however, are not directly attributable to the final 
rule; they are attributable to the political subdivision's creation of 
the payroll deduction savings program pursuant to its authority under 
state law.
    Some commenters expressed the concern that smaller political 
subdivisions without the experience or capabilities to administer a 
payroll deduction savings program may contemplate creating and 
operating their own programs if the safe harbor rule is extended to all 
political subdivisions without any restrictions. This final rule 
addresses this concern by requiring political subdivisions to have a 
population equal to or greater than the least populous state and have a 
demonstrated capacity to operate a payroll deduction savings program in 
order to be qualified. The premise underlying these requirements is 
that political subdivisions that meet them are likely to have 
sufficient existing resources, experience, and infrastructure to create 
and implement payroll deduction savings programs.
3. Uncertainty
    The Department is confident that the final rule will benefit 
political subdivisions and many other stakeholders otherwise beset by 
uncertainty by clarifying the circumstances under which qualified 
political subdivisions can create payroll deduction savings programs, 
including programs with automatic enrollment, without causing the 
political subdivision or employer to create an ERISA-covered employee 
benefit pension plan. However, the Department is unsure of the 
magnitude of the benefits, costs and transfer impacts of these 
programs, because they will depend on the qualified political 
subdivisions' independent decisions on whether and how best to take 
advantage of the safe harbor and on the cost that otherwise would have 
been attached to uncertainty about the legal status of the qualified 
political subdivisions' actions. The Department is also unsure of (1) 
the final rule's effects on political subdivisions that do not meet the 
safe harbor criteria, (2) whether any of these ineligible political 
subdivisions are currently developing their own payroll deduction 
savings programs, and (3) the extent to which ineligible political 
subdivisions would be discouraged from designing and implementing 
payroll deduction savings programs. The Department cannot predict what 
actions political subdivisions will take,

[[Page 92650]]

stakeholders' propensity to challenge such actions' legal status, 
either absent or pursuant to the final rule, or courts' resultant 
decisions.
4. Indirect Effects: Impact of Qualified Political Subdivision Payroll 
Deduction Savings Programs
    As discussed above, the impact of qualified political subdivision 
payroll deduction savings programs is directly attributable to the 
qualified political subdivision legislation that creates such programs. 
As discussed below, however, under certain circumstances, these effects 
could be indirectly attributable to the final rule. For example, it is 
conceivable that more qualified political subdivisions could create 
payroll deduction savings programs due to the clear guidelines provided 
in the final rule and the reduced risk of an ERISA preemption 
challenge, and therefore, the increased prevalence of such programs 
would be indirectly attributable to the final rule. However, such an 
increase would be bounded by the eligibility restrictions for political 
subdivisions. With the authority, population and demonstrated capacity 
tests, and the preclusion of overlapping programs, the number of 
political subdivisions that are potentially eligible to use the safe 
harbor is very small (51). Moreover, as stated above, the Department is 
aware of only three political subdivisions that have expressed an 
interest in creating such programs. An additional possibility is that 
the rule would not change the prevalence of political subdivision 
payroll deduction savings programs, but would accelerate the 
implementation of programs that would exist anyway. With any of these 
possibilities, there would be benefits, costs and transfer impacts that 
are indirectly attributable to this rule, via the increased or 
accelerated creation of political subdivision-level payroll deduction 
savings programs.
    The possibility exists that the final rule could result in an 
acceleration or deceleration of payroll deduction savings programs at 
the state level depending on the circumstances. For example, if 
multiple cities in a state set up robust, successful payroll deduction 
savings programs, a state that might otherwise create its own program 
could conclude that a statewide program no longer is necessary. On the 
other hand, states could feel pressure to create a statewide program if 
a city in the state does so in order to provide retirement income 
security for all of its citizens. However, problems could arise if the 
state and city programs overlap. Therefore, the Department solicited 
comments regarding whether the final regulation should clarify the 
status of a payroll deduction savings program of a qualified political 
subdivision when the state in which the subdivision is located 
establishes a statewide retirement savings program after the qualified 
political subdivision establishes and operates its program. Many 
commenters suggested that the Department should leave to the state to 
determine the appropriate relationship between the political 
subdivision's and the state's programs. Although this may appear to add 
another layer of complexity, the appropriate resolution would depend on 
the circumstances of each state and political subdivision. In some 
circumstances, it might be most cost effective to scale a political 
subdivision's payroll deduction program up to the entire state, whereas 
it might economically make more sense to maintain a political 
subdivision's program independent of the state's under different 
circumstances. As a commenter pointed out, it would be generally more 
cost effective if payroll deduction savings programs are able to take 
advantage of economies of scale.\56\ To do so, a state may decide to 
discontinue the program established by a political subdivision and 
implement its own statewide program. In this case, the Department 
expects the state and the political subdivision will coordinate the 
potentially overlapping programs.
---------------------------------------------------------------------------

    \56\ Comment Letter #6 (American Payroll Association).
---------------------------------------------------------------------------

    Qualified political subdivisions that elect to establish payroll 
deduction savings programs pursuant to the safe harbor would incur 
administrative and operating costs, which can be substantial especially 
in the beginning years until the payroll deduction savings programs 
become self-sustaining.
    Employers may incur costs to update their payroll systems to 
transmit payroll deductions to the political subdivision or its agent, 
develop recordkeeping systems to document their collection and 
remittance of payments under the payroll deduction savings program, and 
provide information to employees regarding the political subdivision 
programs. As with political subdivisions' operational and 
administrative costs, some portion of these employer costs would be 
indirectly attributable to the rule if more political subdivision 
payroll deduction savings programs are implemented in the rule's 
presence than would be in its absence. Because the final rule narrows 
the number of political subdivisions that are eligible for the safe 
harbor by the population and demonstrated capacity tests, the aggregate 
costs imposed on employers would be limited. Moreover, in order to 
satisfy the safe harbor, most associated costs for employers would be 
nominal because the roles of employers are limited to ministerial 
functions, such as withholding the required contribution from 
employees' wages, remitting contributions to the political subdivision 
program and providing information about the program to employees. These 
costs would be incurred disproportionately by small employers and 
start-up companies, which tend to be least likely to offer pensions. 
These small employers may incur additional costs to acquire payroll 
software, use on-line payroll programs, or use external payroll 
companies to comply with their political subdivisions' programs.\57\ 
However, some small employers may decide to use payroll software, an 
on-line payroll program, or a payroll service to withhold and remit 
payroll taxes independent of their political subdivisions' program 
requirement. Furthermore, compared to manually processing payroll 
taxes, utilizing payroll software or an on-line payroll program may be 
more cost effective for small employers in the long run. Therefore, the 
extent to which these costs can be attributable to political 
subdivisions' programs could be smaller than what some might estimate. 
Moreover such costs could be mitigated if political subdivisions exempt 
the smallest companies from their payroll deduction savings programs as 
some states do. Supporting this view, a commenter stated that 
complexity and administrative costs are often cited by small employers 
as barriers to offer retirement plans for their employees and argued 
that savings arrangements established by political subdivisions could 
in fact alleviate small employers' burdens.\58\
---------------------------------------------------------------------------

    \57\ According to one survey, about 60 percent of small 
employers do not use a payroll service. National Small Business 
Association, April 11, 2013, ``2013 Small Business Taxation 
Survey.'' This survey says 23% of small employers who handle payroll 
taxes internally have no employees. Therefore, only about 46%, not 
60%, of small employers would be in fact affected by political 
subdivisions' payroll deduction savings programs, based on this 
survey. The survey does not include small employers that use payroll 
software or on-line payroll programs, which provide a cost effective 
means for such employers to comply with payroll deduction savings 
programs.
    \58\ See Comment letter #5 (City of Philadelphia Controller).
---------------------------------------------------------------------------

    Employers, particularly those operating in multiple political 
subdivisions, may face potentially increased costs to comply with 
several political subdivision payroll deduction

[[Page 92651]]

savings programs, depending on whether and, if so, how, the 
requirements of those programs differ. This can be more challenging for 
employers if they operate in states where not all political 
subdivisions have their own payroll deduction savings programs and/or 
where some political subdivisions' programs differ in certain ways from 
others. However, several states have only one qualified political 
subdivision. Even if states have multiple qualified political 
subdivisions, the final rule precludes overlapping programs. Thus, the 
potential burden faced by employers operating in multiple political 
subdivisions is limited. Moreover, employers operating across several 
political subdivision borders are likely to have ERISA-covered plans in 
place for their employees. Thus, there may be no cost burden associated 
with complying with multiple political subdivision payroll deduction 
savings programs because employers that sponsor plans typically are 
exempt from the law enacting such programs. Furthermore, in order to 
satisfy the final safe harbor rule, the role of employers would be 
limited to ministerial functions such as timely transmitting payroll 
deductions, which implies that the increase in cost burden is further 
likely to be restricted. By limiting eligibility to political 
subdivisions based on the population, authority, and demonstrated 
capacity conditions and precluding overlapping political subdivision 
programs, this final rule further addresses the concerns raised by 
several commenters by substantially limiting the possibility of 
conflicting programs among multiple political subdivisions.
    The Department believes that well-designed political subdivision-
level payroll deduction savings programs have the potential to 
effectively reduce gaps in retirement security. The political 
subdivisions that expressed interest in establishing their own payroll 
deduction savings programs for private-sector workers in the political 
subdivision seem to be motivated by those workers' significantly lower 
access rates to employment-based retirement plans compared to the rates 
for workers nationwide.\59\ In order to successfully reduce these 
significant gaps in retirement savings as intended, there are several 
factors to consider. Relevant variables such as pension coverage, labor 
market conditions,\60\ population demographics, and elderly poverty, 
vary widely across the political subdivisions, suggesting a potential 
opportunity for progress at the political subdivision level. Many 
workers throughout these political subdivisions currently may save less 
than would be optimal due to (1) behavioral biases (such as myopia or 
inertia), (2) labor market conditions that prevent them from accessing 
plans at work, or (3) their employers' failure to offer retirement 
plans.\61\ Some research suggests that automatic contribution policies 
are effective in increasing retirement savings and wealth in general by 
overcoming behavioral biases or inertia.\62\ Well-designed political 
subdivisions' payroll deduction savings programs could help many savers 
who otherwise might not be saving enough or at all to begin to save 
earlier than they might have otherwise. Such workers will have traded 
some consumption today for more in retirement, potentially reaping net 
gains in overall lifetime well-being. Their additional savings may also 
reduce fiscal pressure on publicly financed retirement programs and 
other public assistance programs, such as Supplemental Security Income 
(SSI), which support low-income Americans, including older Americans.
---------------------------------------------------------------------------

    \59\ According to the comment letter submitted by the city of 
Philadelphia, in May 2016, 54% of employees in Philadelphia do not 
have access to workplace retirement plans. Similarly, 57% of New 
York City private-sector workers lack access to a retirement plan at 
their employment place according to the comment letter submitted by 
the office of Comptroller of the City of New York. These statistics 
are significantly higher than the nation-wide average of 34% lacking 
access to a retirement plan through employment for private-sector 
workers, according to the National Compensation Study in June of 
2016.
    \60\ See, e.g., U.S. Bureau of Labor Statistics, ``Metropolitan 
Area Employment and Unemployment--May 2016,'' USDL-16-1291 (June 29, 
2016).
    \61\ According to the National Compensation Survey, March 2016, 
only 66% of private-sector workers have access to retirement 
benefits--including defined benefit and defined contribution plans--
at work.
    \62\ See Chetty, Friedman, Leth-Petresen, Nielsen & Olsen, 
``Active vs. Passive Decisions and Crowd-out in Retirement Savings 
Accounts: Evidence from Denmark,'' 129 Quarterly Journal of 
Economics 1141-1219 (2014). See also Madrian and Shea, ``The Power 
of Suggestion: Inertia in 401(k) Participation and Savings 
Behavior,'' 116 Quarterly Journal of Economics 1149-1187 (2001).
---------------------------------------------------------------------------

    The Department believes that well-designed political subdivision 
payroll deduction savings programs can achieve their intended, positive 
effects of fostering retirement security. However, the potential 
benefits--primarily increases in retirement savings--might be somewhat 
limited, because the final safe harbor does not allow employer 
contributions to political subdivisions' payroll deduction savings 
programs. Additionally, the initiatives potentially might have some 
unintended consequences. Those workers least equipped to make good 
retirement savings decisions arguably stand to benefit most from these 
programs, but also arguably could be at greater risk of suffering 
adverse unintended effects. Workers who would not benefit from 
increased retirement savings could opt out, but some might fail to do 
so. Such workers might increase their savings too much, unduly 
sacrificing current economic needs. Consequently, they might be more 
likely to cash out early and suffer tax losses (unless they receive a 
non-taxable Roth IRA distribution), and/or to take on more expensive 
debt to pay necessary bills. Similarly, political subdivisions' payroll 
deduction savings programs directed at workers who do not currently 
participate in workplace savings arrangements may be imperfectly 
targeted to address gaps in retirement security. For example, some 
college students might be better advised to take less in student loans 
rather than open an IRA and some young families might do well to save 
more first for their children's education and later for their own 
retirement. In general, workers without retirement plan coverage tend 
to be younger, lower-income or less attached to the workforce, thus 
these workers may be financially stressed or have other savings goals. 
Because only large political subdivisions can create and implement 
programs under the final rule, these demographic characteristics can be 
more pronounced, assuming large political subdivisions tend to have 
more diverse workforces. If so, then the benefits of political 
subdivisions' payroll deduction savings programs could be further 
limited and in some cases potentially harmful for certain workers. 
Although these might be valid concerns, political subdivisions are 
responsible for designing effective programs that minimize these types 
of harm and maximize benefits to participants.
    Commenters have stated another concern--that political subdivision 
initiatives may ``crowd-out'' ERISA-covered plans. The final rule may 
inadvertently encourage employers operating in multiple political 
subdivisions to switch from ERISA-covered plans to political 
subdivision payroll deduction savings programs in order to reduce 
costs, especially if they are required to cover employees currently 
ineligible to participate in ERISA-covered plans under political 
subdivision programs. This final rule makes clear that political 
subdivision programs directed toward employers that do not offer other 
retirement plans fall within this final safe harbor rule.

[[Page 92652]]

However, employers that wish to provide retirement benefits are likely 
to find that ERISA-covered programs, such as 401(k) plans, have 
important advantages for them and their employees over participation in 
political subdivision programs. Potential advantages include 
significantly higher limits on tax-favored contributions that may be 
elected by employees ($18,000 in 401(k) plans and $24,000 for those age 
50 or older) versus $5,500 in IRAs ($6,500 for those age 50 or older), 
the opportunity for employers to make tax-favored matching or 
nonmatching contributions on behalf of employees (allowing a total of 
up to $54,000 ($60,000 for those age 50 or older) of employee plus 
employer contributions for an employee in a 401(k) plan versus $5,500 
or $6,500 in IRAs), greater flexibility in plan selection and design, 
ERISA protections, and larger positive recruitment and retention 
effects.\63\ Therefore it seems unlikely that political subdivision 
initiatives will ``crowd-out'' many ERISA-covered plans, although, if 
they do, some workers might lose ERISA-covered plans that could have 
been more generous than political subdivision-based (IRA) benefits.
---------------------------------------------------------------------------

    \63\ These contribution limits are for year 2017. For more 
details, see: https://www.irs.gov/retirement-plans/cola-increases-for-dollar-limitations-on-benefits-and-contributions.
---------------------------------------------------------------------------

    There is also the possibility that some workers who would otherwise 
have saved more might reduce their savings to the low, default levels 
associated with some political subdivision programs. Political 
subdivisions can address this concern by incorporating into their 
programs participant education or ``auto-escalation'' features that 
increase default contribution rates over time and/or as pay increases.

D. Paperwork Reduction Act

    As part of its continuing effort to reduce paperwork and respondent 
burden, the Department of Labor conducts a preclearance consultation 
program to provide the general public and Federal agencies with an 
opportunity to comment on final and continuing collections of 
information in accordance with the Paperwork Reduction Act of 1995 
(PRA) (44 U.S.C. 3506(c)(2)(A)). This helps to ensure that the public 
understands the Department's collection instructions, respondents can 
provide the requested data in the desired format, reporting burden 
(time and financial resources) is minimized, collection instruments are 
clearly understood, and the Department can properly assess the impact 
of collection requirements on respondents.
    In accordance with the requirements of the PRA, the Department 
solicited comments regarding its determination that the proposed rule 
is not subject to the requirements of the PRA, because it does not 
contain a ``collection of information'' as defined in 44 U.S.C. 
3502(3). The Department's conclusion was based on the premise that the 
proposed rule does not require any action by or impose any requirements 
on employers or the political subdivisions. It merely clarifies that 
certain political subdivision payroll deduction savings programs that 
encourage retirement savings would not result in the creation of 
employee benefit plans covered by Title I of ERISA.
    The Department did not receive any comments regarding this 
assessment. Therefore, the Department has determined that the final 
rule is not subject to the PRA, because it does not contain a 
collection of information. The PRA definition of ``burden'' excludes 
time, effort, and financial resources necessary to comply with a 
collection of information that would be incurred by respondents in the 
normal course of their activities. See 5 CFR 1320.3(b)(2). The 
definition of ``burden'' also excludes burdens imposed by a state, 
local, or tribal government independent of a Federal requirement. See 5 
CFR 1320.3(b)(3). The final rule imposes no burden on employers, 
because political subdivisions will customarily include notice and 
recordkeeping requirements when enacting their payroll deduction 
savings programs. Thus, employers participating in such programs are 
responding to political subdivision, not Federal, requirements.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA) imposes 
certain requirements with respect to Federal rules that are subject to 
the notice and comment requirements of section 553(b) of the 
Administrative Procedure Act (5 U.S.C. 551 et seq.) and which are 
likely to have a significant economic impact on a substantial number of 
small entities. Unless an agency certifies that a rule will not have a 
significant economic impact on a substantial number of small entities, 
section 604 of the RFA requires the agency to present a final 
regulatory flexibility analysis at the time of the publication of the 
final rule describing the impact of the rule on small entities. Small 
entities include small businesses, organizations and governmental 
jurisdictions.
    Although several commenters maintained that the proposed rule would 
impose significant costs on small employers, similar to the proposal, 
the final rule merely establishes a new safe harbor describing 
circumstances in which payroll deduction savings programs established 
and maintained by political subdivisions would not give rise to ERISA-
covered employee pension benefit plans. Therefore, the final rule 
imposes no requirements or costs on small employers, and the Department 
believes that it will not have a significant economic impact on a 
substantial number of small employers. Similarly, because the final 
rule does not impose any requirements or costs on small governments, 
the Department believes that it will not have a significant economic 
impact on a substantial number of small government entities, either. 
Accordingly, pursuant to section 605(b) of the RFA, the Assistant 
Secretary of the Employee Benefits Security Administration hereby 
certifies that the final rule will not have a significant economic 
impact on a substantial number of small entities.

F. Unfunded Mandates Reform Act

    For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1501 et seq.), as well as Executive Order 12875, this final rule does 
not include any federal mandate that may result in expenditures by 
state, local, or tribal governments, or the private sector, which may 
impose an annual burden of $100 million as adjusted for inflation.

G. Congressional Review Act

    The final rule is subject to the Congressional Review Act 
provisions of the Small Business Regulatory Enforcement Fairness Act of 
1996 (5 U.S.C. 801 et seq.) and will be transmitted to Congress and the 
Comptroller General for review. The final rule is not a ``major rule'' 
as that term is defined in 5 U.S.C. 804, because it is not likely to 
result in (1) an annual effect on the economy of $100 million or more; 
(2) a major increase in costs or prices for consumers, individual 
industries, or Federal, State, or local government agencies, or 
geographic regions; or (3) significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
United States-based enterprises to compete with foreign-based 
enterprises in domestic and export markets.

H. Federalism Statement

    Executive Order 13132 outlines fundamental principles of 
federalism. It

[[Page 92653]]

also requires adherence to specific criteria by federal agencies in 
formulating and implementing policies that have ``substantial direct 
effects'' on the states, the relationship between the national 
government and states, or on the distribution of power and 
responsibilities among the various levels of government. Federal 
agencies promulgating regulations that have these federalism 
implications must consult with state and local officials, and describe 
the extent of their consultation and the nature of the concerns of 
state and local officials in the preamble to the final regulation.
    In the Department's view, the final rule, by clarifying that 
payroll deduction savings programs by certain political subdivisions 
will not result in creation of employee benefit plans under ERISA, 
would provide more latitude and certainty to political subdivisions and 
employers regarding the treatment of such arrangements under ERISA. 
Therefore, the final rule does not contain policies with federalism 
implications within the meaning of the Order.
    Nonetheless, in respect for the fundamental federalism principles 
set forth in the Order, the Department affirmatively engaged in 
outreach, including meetings, conference calls, and outreach events, 
with officials of political subdivisions and other stakeholders 
regarding the final rule and sought their input on the safe harbor. The 
Department also received comment letters from local governments and 
their representatives. Many of the changes in the final rule stem from 
suggestions contained in the comment letters.

List of Subjects in 29 CFR Part 2510

    Accounting, Employee benefit plans, Employee Retirement Income 
Security Act, Coverage, Pensions, Reporting.

    For the reasons stated in the preamble, the Department of Labor 
amends 29 CFR part 2510 as set forth below:

PART 2510--DEFINITION OF TERMS USED IN SUBCHAPTERS C, D, E, F, G, 
AND L OF THIS CHAPTER

0
1. The authority citation for part 2510 is revised to read as follows:

    Authority: 29 U.S.C. 1002(2), 1002(21), 1002(37), 1002(38), 
1002(40), 1031, and 1135; Secretary of Labor's Order No. 1-2011, 77 
FR 1088 (Jan. 9, 2012); Sec. 2510.3-101 also issued under sec. 102 
of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. at 727 (2012), 
E.O. 12108, 44 FR 1065 (Jan. 3, 1979) and 29 U.S.C. 1135 note. Sec. 
2510.3-38 is also issued under sec. 1, Pub. L. 105-72, 111 Stat. 
1457 (1997).


0
2. In Sec.  2510.3-2, revise paragraph (h) to read as follows:


Sec.  2510.3-2  Employee pension benefit plan.

* * * * *
    (h) Certain governmental payroll deduction savings programs. (1) 
For purposes of title I of the Act and this chapter, the terms 
``employee pension benefit plan'' and ``pension plan'' shall not 
include an individual retirement plan (as defined in 26 U.S.C. 
7701(a)(37)) established and maintained pursuant to a payroll deduction 
savings program of a State or qualified political subdivision of a 
State, provided that:
    (i) The program is specifically established pursuant to State or 
qualified political subdivision law;
    (ii) The program is implemented and administered by the State or 
qualified political subdivision establishing the program (or by a 
governmental agency or instrumentality of either), which is responsible 
for investing the employee savings or for selecting investment 
alternatives for employees to choose;
    (iii) The State or qualified political subdivision (or governmental 
agency or instrumentality of either) assumes responsibility for the 
security of payroll deductions and employee savings, including by 
requiring that amounts withheld from wages by the employer be 
transmitted to the program promptly and by providing an enforcement 
mechanism to assure compliance with this requirement;
    (iv) The State or qualified political subdivision (or governmental 
agency or instrumentality of either) adopts measures to ensure that 
employees are notified of their rights under the program, and creates a 
mechanism for enforcement of those rights;
    (v) Participation in the program is voluntary for employees;
    (vi) All rights of the employee, former employee, or beneficiary 
under the program are enforceable only by the employee, former 
employee, or beneficiary, an authorized representative of such a 
person, or by the State or qualified political subdivision (or 
governmental agency or instrumentality of either);
    (vii) The involvement of the employer is limited to the following:
    (A) Collecting employee contributions through payroll deductions 
and remitting them to the program;
    (B) Providing notice to the employees and maintaining records 
regarding the employer's collection and remittance of payments under 
the program;
    (C) Providing information to the State or qualified political 
subdivision (or governmental agency or instrumentality of either) 
necessary to facilitate the operation of the program; and
    (D) Distributing program information to employees from the State or 
qualified political subdivision (or governmental agency or 
instrumentality of either) and permitting the State or qualified 
political subdivision (or governmental agency or instrumentality of 
either) to publicize the program to employees;
    (viii) The employer contributes no funds to the program and 
provides no bonus or other monetary incentive to employees to 
participate in the program;
    (ix) The employer's participation in the program is required by 
State or qualified political subdivision law;
    (x) The employer has no discretionary authority, control, or 
responsibility under the program; and
    (xi) The employer receives no direct or indirect consideration in 
the form of cash or otherwise, other than consideration (including tax 
incentives and credits) received directly from the State or qualified 
political subdivision (or governmental agency or instrumentality of 
either) that does not exceed an amount that reasonably approximates the 
employer's (or a typical employer's) costs under the program.
    (2) A payroll deduction savings program will not fail to satisfy 
the provisions of paragraph (h)(1) of this section merely because the 
program--
    (i) Is directed toward those employers that do not offer some other 
workplace savings arrangement;
    (ii) Utilizes one or more service or investment providers to 
operate and administer the program, provided that the State or 
qualified political subdivision (or the governmental agency or 
instrumentality of either) retains full responsibility for the 
operation and administration of the program; or
    (iii) Treats employees as having automatically elected payroll 
deductions in an amount or percentage of compensation, including any 
automatic increases in such amount or percentage, unless the employee 
specifically elects not to have such deductions made (or specifically 
elects to have the deductions made in a different amount or percentage 
of compensation allowed by the program), provided that the employee is 
given adequate advance notice of the right to make such elections, and 
provided, further, that a program may also satisfy this paragraph (h) 
without requiring or otherwise providing for automatic elections such 
as those described in this paragraph (h)(2)(iii).
    (3) For purposes of this paragraph (h), the term ``State'' shall 
have the same

[[Page 92654]]

meaning as defined in section 3(10) of the Act.
    (4) For purposes of this paragraph (h), the term ``qualified 
political subdivision'' means any governmental unit of a State, 
including a city, county, or similar governmental body, that--
    (i) Has the authority, implicit or explicit, under State law to 
require employers' participation in the program as described in 
paragraph (h)(1)(ix) of this section; and
    (ii) At the time of the enactment of the political subdivision's 
payroll deduction savings program:
    (A) Has a population equal to or greater than the population of the 
least populated State (excluding the District of Columbia and 
territories listed in section 3(10) of the Act);
    (B) Has no geographic overlap with any other political subdivision 
that has enacted a mandatory payroll deduction savings program for 
private-sector employees and is not located in a State that has enacted 
such a program statewide; and
    (C) Has implemented and administers a plan, fund, or program that 
provides retirement income to its employees, or results in a deferral 
of income by its employees for periods extending to the termination of 
covered employment or beyond.
    (5) For purposes of paragraph (h)(1)(iii) of this section, amounts 
withheld from an employee's wages by the employer are deemed to be 
transmitted promptly if such amounts are transmitted to the program as 
of the earliest date on which such contributions can reasonably be 
segregated from the employer's general assets, but in no event later 
than the last day of the month following the month in which such 
amounts would otherwise have been payable to the employee in cash.

    Signed at Washington, DC, this 9th day of December, 2016.
Phyllis C. Borzi,
Assistant Secretary, Employee Benefits Security Administration, U.S. 
Department of Labor.
[FR Doc. 2016-30069 Filed 12-19-16; 8:45 am]
BILLING CODE 4510-29-P