The Office of Management and Budget scheduled a meeting Tuesday with the AARP to discuss the delay of the Department of Labor’s fiduciary rule implementation.
Speculation is that Labor could file this week, after OMB approval, the much-anticipated 180-day delay of the rule’s April 10 compliance date, which will appear in the Federal Register.
Meanwhile, Sen. Lamar Alexander of Tennessee, chairman of the Senate Health, Education, Labor and Pensions Committee, said Tuesday that the nomination of R. Alexander Acosta, law dean at the public Florida International University, as President Donald Trump’s new Labor secretary “is off to a good start because he’s already been confirmed by the Senate three times.”
It’s been only two weeks since Labor filed with OMB to delay the fiduciary rule’s compliance date via a Notice of Proposed Rulemaking.
Lawyer Steve Saxon says R. Alexander Acosta is a “safe” pick, but it “doesn’t look like he knows a lot…
Because the proposed rulemaking is “marked as not economically significant may account for why OMB could review it quickly,” Kristina Zanotti, a partner at K&L Gates in Washington, said in a Tuesday interview with ThinkAdvisor. Any notice would simply likely be a delay of the rule’s compliance date, she added.
“Word is OMB could approve this week, but the proposed regulation won’t be published till next week,” said another attorney.
Once OMB releases DOL’s proposal to the public in the Federal Register, “we will know the length of the delay of the rule’s applicability date and whether stakeholders will have an opportunity to provide comments before or after the delay is effective,” Zanotti along with her colleagues wrote in a recent client alert.
The question remains as to whether Labor’s proposal at OMB is a proposed rule or an interim final rule.
OMB also just recently got a new director, Rep. Mick Mulvaney, R-S.C., seen here. (Photo: AP Images)
A proposed rule allows for a “public comment period and the comments are then reviewed and taken into account before the rule is finalized. This is the normal process applied in most cases,” notes Joshua Waldbeser, of counsel with Drinker Biddle & Reath. “An interim final rule is effective immediately, and public comments are then permitted after the fact. Interim final rules are usually issued where there is ‘good cause’ to issue a rule without first running it through the public comment process, which the Administrative Procedure Act requires as a general matter.”