Several of my colleagues and I have provided comments to the DOL about its proposal to require a 408(b)(2) guide. Most other commentators have or will be addressing the policy issue — is it a good idea to require a guide or not?   We avoided the policy issues. Instead, our comments focused on making the requirements clear and implementable — if the guide requirement is adopted.

For example, we asked that the DOL clarify the requirement to “furnish” a guide and “disclose” changes to the guide later on. In raising this question, our concern is that the language in the proposal may not clearly express the DOL’s intent. Without clarity on the meaning of these terms, a service provider might inadvertently violate the requirement. Since the regulation is a prohibited transaction exemption, an unambiguous statement of the requirements is essential  for us to be able to properly advise our clients on how to comply.

There are a number of other areas on which we requested clarification if the proposal is finalized.