On February 4, 2009, the Department of Labor (DOL) will publish in the Federal Register a proposal to delay the effective date of its final regulations implementing the ERISA participant investment advice exemptions enacted in the Pension Protection Act of 2006 (PPA).
As discussed in our January 28 Legal Alert, those regulations were published on January 21, 2009, the first day of the Obama Administration. On the afternoon of January 20, consistent with a practice dating to the Reagan Administration, one of the first acts of the Obama White House was to issue a memorandum to federal departments and agencies effectively suspending any unpublished proposed or final regulations and requesting that the effective date for any published final regulations not yet in effect be delayed for 60 days with the notice-and-comment period reopened for 30 days. It is reported that career DOL officials gave immediate attention to the White House directive and determined that it was not possible to withdraw the investment advice regulation before publication in the Federal Register, while noting that the regulation was not yet in effect.
Further to that directive, DOL proposes to delay the effective date of those regulations by 60 days, to May 22, 2009. Comments on that proposal are due February 18, 2009. Because the purpose of that delay would be to allow further public commentary on whether the regulations raise significant policy and legal issues and for DOL to review these comments before the ERISA relief as implemented by the regulations becomes available, DOL also solicits comments on issues of law and policy concerning the regulations and whether the regulations as published should be further delayed, rescinded, modified or retained. Comments for this broader purpose are due March 6, 2009.