EBSA’s reorganization designed to move regs, guidance more quickly
Political appointee will oversee critical rulemaking.
The reorganization of the top leadership of the Employee Benefit Security Administration is designed to expedite rulemaking and guidance issuance, according to one attorney and former regulator with the Labor Department.
“The Labor Department has always moved at a slow pace,” said Erin Sweeney, a labor and ERISA attorney with Miller & Chevalier who served as a senior benefits counsel during the Bush administration.
“The question the Trump administration is asking is if Labor has always had a slow pace, then how can we restructure EBSA so that it can issue guidance and regulations in a more nimble fashion,” she added.
Effective October 1, EBSA’s Office of Regulations and Interpretations, Office of Exemption Determinations, the Office of Policy and Research and Office of Health Plan Standards will fall under the purview of the Principal Deputy Assistant Secretary, a politically appointed position held by Jeanne Klinefelter Wilson.
Those core regulatory oversight responsibilities have fallen under the Deputy Assistant Secretary for Program Operations, a career, non-political position held by Timothy Hauser.
Under the reorganization, Hauser will move to the Deputy Assistant Secretary for the National Office, where he will oversee EBSA’s 10 regional offices and the agency’s enforcement programs.
The new oversight structure closely emulates Labor’s Office of the Solicitor, explained Sweeney, who worked on crafting the Pension Protection Act of 2006 and for EBSA’s Division of Fiduciary Interpretations.
The Solicitor’s Office has a reputation of greater efficiency, she said.
“If you bring that overlay to EBSA, the idea is that it can be more reactive to the Administration’s goals. All senior staff report up to the political appointee, who then presumably will move guidance and regulations at a faster pace and allow for the market innovation the Administration is looking for,” said Sweeney.
Some in industry have speculated that key Trump administration initiatives issued through executive orders have developed too slowly under Hauser’s oversight.
A regulation on pooled employer retirement plans that will be implemented October 1 fell far short of industry’s expectations. Other guidance, including electronic disclosures of 401(k) documents, has yet to emerge.
“I have heard from some clients and industry trade associations concern that guidance is being slow-walked and that Labor is not meeting the Administration’s goal of providing guidance in a timely fashion,” said Sweeney.
“The President issues an executive order and the Administration wants to know where it is. The fact that it takes so long makes people uncomfortable,” added Sweeney.
Hauser is considered to be a chief architect of Labor’s fiduciary rule under the Obama administration. EBSA is expected to release a new fiduciary rule this fall.
Hauser is also regarded as a brilliant legal mind and a dutiful public servant.
“Tim is the consummate professional,” said Sweeney, who worked closely with Hauser during her time at Labor.
“I’ve known him for a long time and never once have heard him utter a political opinion,” she said.
Hauser will still play a critical role overseeing enforcement of laws like the Employee Retirement Income Security Act and the Affordable Care Act.
“He came up through enforcement—that’s where he cut his teeth, and he’s really good at it,” said Sweeney. “Tim brings a bigger package to enforcement. He’s familiar with litigation and regulatory enforcement. He will be a great person to be in charge of enforcement, and I think he enjoys it.”
READ MORE:
Do DOL stats offer EBSA enforcement clues?
Retirement plan auditors: What plan sponsors need to know about EBSA’s CPA study