DC industry welcomes DOL's delay in fee-disclosure regulations

The recent Labor Department decision to delay implementing fee-disclosure regulations for service providers by six months was applauded by defined contribution industry members, who say the government recognized that meeting new guidelines would have required too much work in too little time.

Several speculated that the extension — to Jan. 1, 2012, from July 16, 2011 — means service providers can expect some changes from the proposal issued in July 2010 to amend Section 408(b)(2) of ERISA.

“There are a lot of moving parts here,” said Lew Minsky, executive director of the Defined Contribution Institutional Investment Association, Washington.

The DOL issued what it called an interim final regulation in July, requiring providers to improve disclosure to plan fiduciaries on fees for services and potential conflicts of interests that might affect those services. The DOL set the July 16, 2011, deadline for the new rules to take effect but also asked for public comments.

Several organizations filing formal comments warned that the deadline would be difficult to meet if the DOL made major changes to the interim final rules (Pensions & Investments, Oct. 1).

“I think the department was responsive to concerns expressed to them about the July deadline, when the final regulations wouldn't even be available until May or June,” said James M. Delaplane Jr., a partner at Davis & Harman LLP, Washington.

Although the DOL's website identified an April date for what some people in the DC industry call the “final final” regulations, Mr. Delaplane noted the department hasn't sent the final rules to the White House Office of Management and Budget for review.

“I agree with the presumption that the final regulation will have notable changes,” he added. “Otherwise, it would have gone to OMB already. It's not so much what the final regulation says, it's the fact that it would change” from what was proposed in July.

DC industry experts say providers have been trying to anticipate final regulations by adjusting their computer software to accommodate changes. However, complying with the original deadline “has been complicated because you know something else will be added (to the regulations) but you don't know exactly what it will look like,” said Jennifer Eller, a principal in the Groom Law Group, Washington.

“We are hearing from our members that (computer software) programming is problematic because they don't have the final regulation,” said Craig Hoffman, general counsel and director of regulatory affairs for the American Society of Pension Professionals and Actuaries, Arlington, Va.

DOL spokeswoman Gloria Della declined to comment beyond the text of a Feb. 11 news release from Phyllis C. Borzi, assistant secretary of labor for the Employee Benefits Security Administration. “Given the need to ensure a careful review of all the valuable input we received on the interim final rule, including suggestions for a summary document to further assist plan fiduciaries in their review of furnished information, we now believe plans and plan service providers would benefit from an extension of the rules applicability date,” Ms. Borzi said in that release.

The reference to a summary document is a key issue. When the interim final regulation was issued in July, the summary document idea wasn't in the rule itself, but rather in a preamble issued by the DOL when it posted its proposal in the Federal Register. Providers that offered formal comments were divided over the prospect of a summary document, with some favoring it and others arguing that it would represent an expensive duplication of information.

“It's my guess that the final regulation will require a summary,” Mr. Hoffman said.