What Is a DOL Advisory Opinion for a 401(k) Plan?

A DOL advisory opinion answers a legal interpretation question tied to a defined fact pattern. It does not create an exemption, approve an investment, certify fiduciary prudence or give every other plan the right to rely on the answer.^[1][2]

That makes the process useful—but narrower than many retirement professionals assume.

A good advisory-opinion question sounds like:

"If the program operates exactly as described, does this ERISA regulation apply in this way?"

A poor one sounds like:

"Is this transaction a good idea?"

The first is legal interpretation.

The second is fiduciary judgment.

ERISA Procedure 76-1 was built primarily for the first.^[2]

What Exactly Is the Letter?

ERISA Procedure 76-1 defines an advisory opinion as a written statement from the Department that interprets and applies:^[2]

• ERISA
• regulations issued under ERISA
• interpretive bulletins
• exemptions

to a:

specific factual situation.

That last phrase is the center of the process.

The Department is not issuing a miniature regulation for an industry.

It is applying existing authority to facts supplied by a requester.

The Opinion Is Only as Good as the Facts Submitted

Section 10 assumes that all material facts and representations in the request are accurate.^[2]

It also says the opinion applies only to the described situation.

Change a material fact and the analysis may change.

Example:

A plan receives an opinion based on a provider being:

• independent
• unpaid by the sponsor
• without discretionary authority.

Two years later:

• sponsor acquires 60% of provider
• provider begins receiving affiliate fees
• provider gains investment discretion.

The old PDF does not automatically travel with the new relationship.

Section 10 reliance is tied to factual identity.

Who Can Ask DOL for One?

The procedure allows any individual or organization affected:

directly or indirectly

by ERISA to request an advisory opinion or information letter.^[2]

That can include:

• employer
• plan
• fiduciary
• service provider
• financial institution
• trade group
• participant
• counsel acting for a client

depending on the issue.

The requester does not need to be DOL itself, a large plan or a regulated financial institution.

The real gate is whether the question is one DOL considers appropriate for the procedure.

Advisory Opinions Are Discretionary

A request does not create a right to an opinion.

Under Procedure 76-1, DOL issues opinions when it considers them appropriate and consistent with sound administration of ERISA.^[2]

The Department can decide:

• advisory opinion is appropriate
• information letter is more appropriate
• facts are incomplete
• question is too factual
• issue is under investigation
• pending regulation makes an opinion inappropriate
• requested subject is one DOL ordinarily declines.

The process is not litigation.

There is no entitlement to a merits decision just because a detailed letter was filed.

DOL Generally Prefers Prospective Transactions

The procedure states that opinions generally are issued for:

prospective transactions.^[2]

That means transactions to be entered into.

Why?

Before closing, the parties can:

• fix structure
• identify legal consequences
• change documents
• avoid prohibited conduct
• reconsider the deal.

After closing, the request can start to look less like interpretation and more like:

"Please validate what we already did."

That can implicate:

• enforcement
• correction
• exemption
• litigation

issues better handled through another process.

Completed Transactions Are Not Automatically Impossible

"Generally prospective" does not mean:

"never retrospective."

DOL has issued opinions involving existing arrangements.

But a requester should not assume a completed transaction is an equally strong candidate.

If the real problem is:

• completed prohibited transaction
• fiduciary breach
• missed contribution
• plan loss

an advisory opinion may be the wrong tool.

INV-124 covers VFCP.

INV-174 covers individual exemptions.

Those processes solve different problems.

Hypothetical Questions Are Poor Candidates

DOL identifies the following as an ordinarily unsuitable request:

hypothetical situations.^[2]

A law firm cannot simply ask:

"Would ERISA apply if some future client did X?"

The Department wants actual facts involving identifiable affected parties.

That keeps the opinion connected to a real legal problem.

It also prevents advisory opinions from becoming private rulemaking by hypothetical.

DOL Does Not Want a Menu of Alternative Deals

The procedure also says advisory opinions generally will not be issued on:

alternative courses of proposed transactions.^[2]

Example:

Employer is considering:

• Structure A: managed account
• Structure B: target-date fund
• Structure C: annuity wrapper.

Request asks DOL:

"Which one works best under ERISA?"

That is weak.

A stronger request identifies the actual proposed structure and asks a focused legal question about it.

The requester should decide what it wants to do before asking DOL to interpret the result.

All Parties Need to Be Identified

DOL also warns that it generally will not opine when the parties are not sufficiently identified and described.^[2]

That matters because ERISA status can turn on relationships.

For example:

• employer
• affiliate
• investment manager
• insurer
• trustee
• recordkeeper
• participant
• party in interest.

An unnamed future counterparty can make the analysis unstable.

If identity affects the law, identity belongs in the request.

Material Facts Cannot Be Omitted

The procedure rejects materially incomplete requests.^[2]

That includes selective framing.

Suppose a provider asks whether it can receive a fee under a plan arrangement.

The request describes:

• base fee
• services.

It omits:

• affiliate revenue
• product compensation
• authority over vendor selection.

The legal answer may be different once those facts appear.

Material omissions can destroy the usefulness of the resulting opinion.

The Entire Integrated Transaction Matters

Section 6 is explicit.

If the request concerns one step of a larger integrated act or transaction, the requester must provide facts and circumstances concerning:

the entire transaction.^[2]

That requirement prevents legal slicing.

Example:

A provider asks whether one investment-management agreement creates fiduciary status.

The real structure also includes:

• rollover solicitation
• affiliate product placement
• revenue sharing
• discretionary rebalancing.

DOL needs the integrated relationship if those features affect the answer.

Some Questions Are Too Factual for Procedure 76-1

The procedure identifies areas DOL generally declines because the answer turns too heavily on factual judgment.^[2]

The list is not exhaustive.

Important examples include:

• adequate consideration
• current value
• present value
• whether financial statements fairly present plan information
• several participation and accrual issues
• minimum funding
• fact-specific Section 404(a) fiduciary conduct
• fair-market-value determinations for specific securities or real property under identified Section 407 provisions.^[2]

This is a major boundary.

Section 404(a) Prudence Is Usually a Bad Advisory-Opinion Question

One listed exclusion is Section 404(a) when the question asks DOL to evaluate:

as applied to particular conduct.^[2]

That means a committee should not expect DOL to answer:

"Was our decision to select Fund X prudent?"

or:

"Would buying this private credit fund satisfy our fiduciary duties?"

Those questions depend on facts such as:

• process
• alternatives
• fees
• risk
• diversification
• monitoring
• expertise.

DOL can interpret fiduciary standards.

It generally does not use the advisory-opinion process to certify a particular fiduciary decision.

Advisory Opinion 2025-04A Shows the Difference

In 2025-04A, AllianceBernstein asked whether a specifically described Lifetime Income Strategy could satisfy the QDIA regulation.^[5]

DOL concluded that the program, if operated as described, could satisfy the relevant QDIA requirements.^[5]

But the Department separately preserved a plan fiduciary's duty to prudently:

• select
• monitor

the QDIA.^[5]

That is the correct line.

DOL interpreted regulatory eligibility.

It did not declare:

"Every plan that selects this product acts prudently."

A Legal Category Can Be Opinion-Ready Even When Prudence Is Not

Questions well suited to advisory opinions often involve legal classification.

Examples:

• Is this arrangement an ERISA plan?
• Is this entity an employer or employee organization for Title I purposes?
• Does this regulatory definition cover this program?
• Does this described structure fit a QDIA category?
• Does an existing exemption apply to this relationship?
• Does ERISA preempt a described state rule?

Those questions still require facts.

But the final issue is interpretation.

That is different from weighing the quality of a fiduciary decision.

Valuation Questions Usually Belong Elsewhere

Procedure 76-1 ordinarily declines questions such as whether:

• consideration is adequate
• an asset is at current value
• an asset is at present value
• a particular security or real property has fair market value under listed employer-security/property provisions.^[2]

That makes sense.

Value usually requires:

• appraisal
• market evidence
• financial analysis
• expert judgment.

The office that issues these opinions is not a transaction appraisal service.

Advisory Opinion vs. Individual Exemption

This distinction is critical after INV-174.

Advisory opinion

Question:

What does existing ERISA law mean for these facts?

Individual exemption

Question:

The transaction is prohibited. Will DOL grant specific administrative relief under Section 408(a)?

An advisory opinion can interpret an exemption.

It cannot invent exemption coverage that the text does not provide.

If a transaction is prohibited and no exemption fits, the answer is not:

"Ask for an advisory opinion instead."

The parties may need:

• transaction redesign
• individual exemption
• EXPRO
• another valid statutory or class route.

Example: Related-Party Property Sale

401(k) trust proposes to sell real estate to employer affiliate.

Counsel knows Section 406 is implicated.

The plan asks DOL:

"Is $5 million a prudent sale price?"

Poor advisory-opinion question.

It asks DOL to make a valuation/fiduciary judgment the procedure ordinarily avoids.

The real legal task may be:

• determine which prohibitions apply
• identify existing exemption
• apply for individual relief if needed
• use independent fiduciary/appraisal process.

INV-174 is the better framework.

Advisory Opinion vs. Information Letter

DOL recognizes two forms of opinion-letter response under Procedure 76-1.^[1][2][3][4]

Advisory opinion

Applies ERISA to the requester's defined facts.

Only described parties receive Section 10 reliance.

Information letter

Calls attention to established principles or interpretations.

It does not apply those principles to the requester's facts with the same reliance effect.

Section 11 says an information letter is:

informational only

and does not bind DOL when a specific real-world case later arises.^[2]

That is a meaningful difference.

DOL Can Give an Information Letter Even When You Asked for an Opinion

Procedure 76-1 allows DOL to issue an information letter when:^[2]

• request seeks general information
• request does not meet all advisory-opinion requirements
• general established guidance would still assist the requester.

The Department has done this in practice.^[4]

A requester cannot force DOL to give fact-specific Section 10 reliance by labeling the submission:

"Advisory Opinion Request."

DOL controls the form of response.

The Private-Equity Information Letter Shows the Difference

DOL's 2020 information letter on private equity in defined contribution plans discussed established fiduciary principles for using private-equity exposure as a component of a professionally managed asset-allocation fund.^[4]

It did not function as party-specific Section 10 approval of every private-equity structure.

The Department's information-letter database now also notes that a 2021 supplemental statement to that letter was rescinded in 2025.^[4]

Guidance format and current status both matter.

The Request Must Include Plan Identity

Procedure 76-1 asks for information such as:^[2]

• plan name
• type of plan
• EIN
• plan number.

The original 1976 text also refers to historical reporting forms and agency names that no longer match modern practice.^[2]

That is a useful warning.

Do not mechanically copy a 1976 filing checklist.

Use the current DOL webpage, current contact information and current plan-reporting identifiers.

The substantive requirement remains:

identify the plan clearly.

The Request Must Describe the Transaction in Detail

Section 6 requires a detailed description of the act or transaction.^[2]

A good factual statement answers:

• who
• what
• when
• how
• compensation
• authority
• ownership
• documents
• sequence
• ongoing obligations.

The request should separate:

facts

from:

legal argument.

DOL should not have to reverse-engineer the business arrangement from contract excerpts.

Include the Documents

Section 6 calls for relevant documents to be included rather than merely incorporated by reference.^[2]

The requester also should explain how their provisions bear on the issue.

Examples:

• plan document
• trust agreement
• investment management agreement
• service agreement
• insurance contract
• corporate organizational documents
• fee schedules
• participant communications.

Dumping 400 pages of exhibits without analysis does not explain the transaction.

State the Legal Issue Precisely

A useful request frames the actual interpretation question.

Weak:

"Please confirm this arrangement complies with ERISA."

Stronger:

"Does the described program constitute an investment management service within 29 CFR 2550.404c-5(e)(4)(iii), notwithstanding the inclusion of the described variable-annuity and guaranteed-withdrawal features?"

The second question narrows:

• authority
• classification
• factual feature causing uncertainty.

That is why 2025-04A could produce a useful answer.^[5]

The Requester Must Give Its Own Legal Analysis

Procedure 76-1 requires the requester to state its views and provide supporting authority—even when it is not asking DOL to adopt one particular result.^[2]

That means the request should analyze:

• statutory text
• regulations
• prior advisory opinions
• information letters
• relevant exemptions
• court decisions where appropriate
• contrary authority.

An advisory-opinion request is not:

"Here are facts. Please do our legal research."

The requester builds the legal case.

DOL evaluates it.

Contrary Authority Should Not Be Buried

A strong submission identifies authority that cuts the other way.

Why?

Because DOL will evaluate the law independently.

If the request omits a directly relevant:

• regulation
• prior opinion
• adverse case

the omission can hurt credibility.

The goal is not to win a brief by hiding the weak point.

It is to obtain a durable interpretation based on a complete record.

Authorized Representatives Need Authority

If an attorney or other representative signs or appears for the requester, the request must state that the representative is authorized to act for that person or organization.^[2]

That sounds minor.

It is part of a recurring DOL principle:

who is asking matters.

The opinion belongs to the described parties.

The representative speaks for them.

The Current Filing Email Is Straightforward

DOL's current Procedure 76-1 page states that advisory-opinion requests may be submitted by email to:^[2]

EBSAopinionletters@dol.gov

The same page provides the current mailing address for the responsible EBSA office.^[2]

Email reduces delivery friction.

It does not reduce the level of detail needed.

A two-paragraph email with no integrated facts is still a weak request.

What Happens If the Request Is Incomplete?

For a noncompliant submission, DOL may acknowledge the request and identify the missing requirements.^[2]

Alternatively, DOL may issue an:

information letter

if general established principles would help.^[2]

That is another reason to decide what level of answer is actually needed.

If the issue is already settled, an information letter may be enough.

If the transaction requires fact-specific reliance, the factual record needs to support it.

Conferences Are Possible but Not Automatic

A requester can state that it wants a conference if DOL is contemplating an adverse opinion.^[2]

DOL decides whether a conference is:

• necessary
• appropriate
• useful.

The Department controls:

• whether it occurs
• when it occurs.

A conference is not a guaranteed appeal right.

It is a discretionary part of the interpretive process.

Ask for the Conference Early

Procedure 76-1 recommends stating the desire for a conference in the initial request or soon afterward.^[2]

That gives DOL the opportunity to decide when a discussion would be most useful.

Waiting until the end can reduce practical value.

The conference request should not be treated as a substitute for:

• complete facts
• legal analysis
• documents.

It is a discussion tool.

Not an evidentiary cure.

Expedited Processing Is Also Discretionary

DOL says requests are generally processed in regular order and as expeditiously as possible.^[2]

A requester can ask for priority handling by showing a clear need.

But the Department gives no assurance that an opinion will be issued by a requested date.^[2]

This is especially important for transactional lawyers.

Do not structure closing conditions around an assumed DOL delivery date unless the deal can tolerate delay.

Self-Created Deadlines Do Not Create a Business Emergency

Procedure 76-1 is explicit.

DOL does not treat a business emergency as arising from circumstances within the requester's control, such as scheduling:

• transaction closing
• board meeting
• shareholder meeting

on an inordinately short timetable.^[2]

Example:

Company signs term sheet Monday.

Sets closing for Friday.

Files advisory-opinion request Tuesday.

The Friday closing date does not turn the request into a federal emergency.

Timing discipline belongs with the transaction team.

Pending Rulemaking Can Narrow Opinion Availability

Procedure 76-1 contains special rules when DOL is developing a regulation on the relevant provision.^[2]

If the answer appears clear from statute and facts, DOL may issue an opinion.

If the answer is reasonably certain but not free from doubt, DOL may require:

• business emergency
• unusual hardship.

If the issue cannot reasonably be resolved before regulation, DOL will not issue an opinion.^[2]

This avoids using party-specific letters to preempt an unresolved rulemaking.

A Request Can Be Withdrawn

The requester can withdraw an advisory-opinion request before:^[2]

• receiving notice that DOL intends to issue an adverse opinion
• issuance of an opinion.

That can matter if:

• transaction changes
• parties abandon project
• legal issue disappears
• requester no longer wants a public answer.

Withdrawal does not erase the record.

DOL Keeps the Correspondence After Withdrawal

Even after withdrawal, the Department retains the correspondence and exhibits rather than returning them.^[2]

That matters for sensitive commercial matters.

A company should not assume:

"If we dislike the direction, we can withdraw and make the file disappear."

The procedure does not promise that.

Public-inspection and proprietary-information rules should be considered before filing.

Section 10 Defines the Reliance Boundary

This is the most important technical rule for users of advisory opinions.

Section 10 says:^[2]

• opinion assumes material facts are accurate
• opinion applies only to described situation
• only parties described in request may rely
• reliance exists only to extent request fully and accurately contains material facts
• actual situation must conform to described situation.

Think of reliance as an intersection:

same parties + same material facts + same legal setting.

If one breaks, reliance weakens.

Another Plan Cannot Borrow Section 10 Reliance

Suppose Plan A receives an opinion on a managed-account structure.

Plan B uses a similar provider and product.

Plan B can read Plan A's opinion.

It may be persuasive.

It may help identify DOL's interpretation.

But Plan B was not a described party in Plan A's request.

Plan B does not obtain Section 10 reliance simply by putting the opinion in its committee file.

That distinction matters when vendors say:

"DOL approved this structure."

Ask:

Approved for whom, on what facts, and is the opinion still current?

Advisory Opinions Can Still Be Important Precedent

The fact that third parties cannot rely under Section 10 does not make opinions irrelevant.

They can reveal how DOL interprets:

• definitions
• regulations
• exemptions
• plan-status questions.

Lawyers, fiduciaries and courts may study them as agency interpretive materials.

But a third party should treat the opinion as:

interpretive evidence

rather than:

its own ruling.

That is a much more accurate description.

Advisory Opinion 2025-03A Shows Plan-Status Use

Morgan Stanley asked DOL whether a described deferred incentive compensation program was an ERISA pension plan or instead fell within the bonus-program exclusion in 29 CFR 2510.3-2(c).^[6]

DOL concluded the described program fell within that bonus-program exclusion and therefore was not an employee pension benefit plan under Title I.^[6]

That is a classic advisory-opinion question.

It asks:

What legal category does this specific program fall into?

It does not ask:

Was management prudent?

Advisory Opinion 2025-04A Shows Regulatory-Scope Use

AllianceBernstein's request involved a Lifetime Income Strategy offered to participant-directed defined contribution plans.^[5]

The strategy included:

• professionally managed account
• variable annuity structure
• guaranteed lifetime withdrawal benefit.

DOL interpreted the QDIA regulation and concluded the program would not fail QDIA requirements solely because of those described features, assuming it operated as represented.^[5]

Again, the opinion answers:

regulatory fit

not:

investment superiority.

2025-04A Also Preserves Delegated Fiduciary Architecture

The opinion discusses the role of a Section 3(38) investment manager selecting and monitoring insurers within the described lifetime-income program.^[5]

It also preserves the named fiduciary's responsibility to prudently:

• select
• monitor

the investment manager.^[5]

That is useful beyond the product.

The letter can clarify how responsibilities fit together while leaving future exercises of fiduciary judgment unresolved.

Advisory Opinion 2025-01A Shows Opinions Can Be Rescinded

In July 2025, DOL issued Advisory Opinion 2025-01A.^[7]

Its opening point is unambiguous:

it rescinds Advisory Opinion 2023-01A.^[7][8]

DOL stated that the prior opinion no longer reflected the Department's views.^[7]

Whatever one thinks about the underlying policy dispute, the procedural lesson is clear:

a previously issued opinion can later cease to reflect DOL's current position.

That means an opinion file needs maintenance.

Not just storage.

Rescission Does Not Mean "Ignore History"

If an opinion is rescinded:

• do not cite it as current DOL position
• examine replacement guidance
• assess whether existing arrangements need review
• check effective legal authority
• distinguish reliance history from current interpretation.

Do not leap to:

"Every past act based on the opinion was automatically unlawful."

The effect of rescission can depend on:

• timing
• applicable law
• other authority
• facts
• litigation posture.

Rescission is a review trigger.

Not a one-line liability conclusion.

Advisory Opinion 2026-01A Shows the Process Is Still Active

DOL's advisory-opinion database lists Advisory Opinion:

2026-01A

dated May 1, 2026.^[1][9]

That opinion addressed whether a subgroup of Idaho Farm Bureau Federation employers could constitute an ERISA employer group/association and whether the health plan would be an ERISA-covered employee welfare benefit plan and MEWA.^[1][9]

It is not a 401(k) opinion.

It matters here because it confirms Procedure 76-1 remains an active DOL interpretive route in 2026.

The Database Covers More Than Retirement Plans

DOL's opinion archive includes issues involving:^[1]

• pension plans
• welfare plans
• MEWAs
• plan status
• preemption
• fiduciary provisions
• prohibited transactions
• reporting/disclosure
• regulatory definitions.

A 401(k) professional should not search only for opinions with:

"401(k)"

in the title.

Relevant interpretive principles may appear in:

• pension cases
• welfare-plan cases
• service-provider cases
• trust cases.

The legal provision matters more than the product label.

Advisory Opinion vs. Regulation

A regulation is agency rulemaking with broad legal applicability under the governing administrative framework.

An advisory opinion applies existing authority to identified facts.^[2]

A regulation may govern thousands of plans.

An advisory opinion's Section 10 reliance is party-specific.

Do not cite an opinion as though it amended the Code of Federal Regulations.

It does not.

Advisory Opinion vs. Interpretive Bulletin

An interpretive bulletin generally states DOL's interpretation on a broader subject and may be codified in Part 2509 or published as general guidance.

An advisory opinion is built around one defined factual record.

One may cite the other.

But their scope differs.

A plan designing industrywide policy should not confuse a one-party fact pattern with a generally applicable interpretive bulletin.

Advisory Opinion vs. Field Assistance Bulletin

Field Assistance Bulletins usually provide EBSA field staff and stakeholders with enforcement or interpretive guidance on defined topics.

They are not Section 10 party-specific advisory opinions issued in response to one request.

Examples of FAB topics have included:

• missing participants
• cybersecurity
• bonding
• participant disclosures.

The format tells you something about intended scope.

A plan should identify what kind of DOL document it is reading before deciding what weight to give it.

Advisory Opinion vs. Litigation Result

The letter represents an executive-branch interpretation.

A court interpreting ERISA is doing a different job.

If later controlling judicial authority conflicts with an older advisory opinion, the legal landscape changes.

Likewise:

• new statute
• new regulation
• rescission
• superseding DOL guidance

can weaken or eliminate the opinion's usefulness.

The PDF date is not enough.

Current-law validation matters.

A Practical Advisory-Opinion Request Structure

A strong request can be organized in this order:

1. Requester and affected plan

Identify:

• requester
• plan
• EIN/plan number where applicable
• relevant fiduciaries/service providers.

2. Exact proposed facts

Describe:

• transaction
• parties
• compensation
• control
• documents
• timing
• integrated steps.

3. Narrow legal question

State the provision requiring interpretation.

4. Requester's legal analysis

Address:

• text
• regulations
• prior guidance
• cases
• contrary authority.

5. Requested conclusion

State what interpretation is sought.

6. Procedural requests

Include:

• representative authority
• conference request if adverse view contemplated
• expedition request only where justified
• proprietary-information letter where needed.^[2]

This structure reduces ambiguity.

Example: Good 401(k) Advisory-Opinion Question

A 401(k) provider develops a new managed-account service that allocates assets among plan investments and adds a lifetime-income feature.

The provider wants to know whether the program can fit a specific QDIA regulatory category.

Facts are:

• fixed
• parties known
• contracts drafted
• investment authority defined
• participant rights specified.

That is close to the structure addressed in 2025-04A.^[5]

The question is interpretive.

It can be answered without deciding whether every plan should buy the service.

Example: Bad 401(k) Advisory-Opinion Question

Committee considers putting:

10%

of plan assets into a private real-estate fund.

It asks DOL:

"Would this be prudent under Section 404(a)?"

The procedure expressly places fact-specific fiduciary conduct under Section 404(a) among matters DOL ordinarily declines to resolve in an opinion.^[2]

The committee needs:

• fiduciary process
• investment analysis
• fee review
• risk analysis
• legal counsel

not a party-specific DOL prudence certificate.

Example: Asking DOL to Choose Between Structures

Provider proposes two possible compensation models.

Model A

Asset-based fee.

Model B

Per-participant fee plus affiliate revenue.

Request says:

"Please tell us which model complies with ERISA."

That creates an alternative-course problem.^[2]

Better:

• decide actual proposed model
• disclose economics
• ask focused interpretation question.

DOL is not the provider's product-design committee.

Example: Old Opinion, New Facts

Vendor cites a 2006 advisory opinion involving:

• mutual fund
• independent fiduciary
• no affiliate ownership.

Current structure uses:

• collective trust
• affiliated fiduciary
• revenue-sharing arrangement.

The vendor says:

"DOL already approved this."

That conclusion is too broad.

The opinion can still be useful.

But Section 10 reliance does not move to:

• different parties
• different facts
• different investment vehicle
• different economics.

The comparison has to be done, not assumed.

Public Inspection Is Part of the Process

Section 12 provides for public inspection of issued advisory opinions.^[2]

It also provides that background files—including the request and correspondence—may be available upon written request.^[2]

The procedure dates from 1976, so some physical-office language is historical.

The principle remains important:

this is not a private confidential ruling process.

Commercially sensitive facts should be considered before filing.

Proprietary Information Can Be Identified

Section 12 directs requesters to identify proprietary information in a separate letter when the request is filed.^[2]

The Department says advisory opinions will be modified to remove references to proprietary information before public disclosure.^[2]

That protection does not make the entire file confidential.

The requester should distinguish:

• genuinely proprietary information
• ordinary transaction facts
• legal argument.

Over-designating everything as secret is not a substitute for understanding the disclosure rules.

Background Files May Outlive the Immediate Deal

Procedure 76-1 states background files may be destroyed after three years from issuance.^[2]

"May" is not:

"will."

The requester should not build confidentiality assumptions around a destruction date.

The better approach is to assume that information submitted to support a federal interpretive request can remain available under applicable disclosure rules.

When Is the Process Worth the Effort?

The process is most useful when four conditions line up.

Real legal ambiguity

The answer is not already obvious from statute, regulation or settled guidance.

Stable facts

The transaction is sufficiently developed to describe accurately.

High consequence

The legal classification materially affects:

• plan status
• product design
• fiduciary role
• distribution
• exemption availability
• business structure.

Appropriate question

The answer turns on legal interpretation rather than appraisal or prudence.

If one is missing, counsel should ask whether another path is better.

When an Information Letter May Be Better

An information letter can be more appropriate where the real need is:

• established principle
• general interpretation
• educational clarification.

It may also be what DOL provides if the advisory-opinion request is incomplete.^[2][4]

The trade-off is reliance.

Information letters are expressly informational and not binding on DOL when applied to a particular set of facts.^[2]

That can still be valuable where the question is general.

When an Individual Exemption Is Better

Use exemption analysis when:

• transaction is prohibited
• existing exemption does not fit
• parties want DOL to grant legal relief.

INV-174 covers the current individual-exemption process.

The opinion route can answer:

"Does PTE X apply to these facts?"

It cannot answer:

"PTE X does not apply, so please make us exempt anyway."

That second request belongs in exemptive relief.

When No DOL Letter Is the Best Answer

Sometimes the law is already clear.

A committee does not need a federal opinion letter to confirm:

• diversify prudently
• monitor service providers
• follow plan documents
• investigate unreasonable fees.

Seeking an opinion can add:

• delay
• cost
• public exposure

without changing the answer.

The existence of a procedure does not mean every ambiguity deserves to become a federal file.

The ROIStreet Advisory-Opinion Decision Map

Identify the legal uncertainty → ask whether it is interpretation or permission → if prohibited transaction needs relief, use exemption analysis instead → if question is particular prudence/valuation, do not assume Procedure 76-1 will answer it → verify facts are prospective and stable → eliminate hypothetical alternatives → identify every material party → describe entire integrated transaction → collect governing documents → frame narrow ERISA provision or regulation → research current statutes, regulations, guidance and cases → state requester's position and contrary authority → confirm representative authority → decide whether proprietary-information designation is needed → decide whether a conference should be requested if adverse opinion is contemplated → file using current DOL instructions → respond to requests for missing facts → if DOL issues information letter instead, understand its weaker effect → if advisory opinion issues, map every material representation to actual implementation → confirm no later rescission, superseding regulation or controlling case → do not extend Section 10 reliance to parties or facts outside the opinion

The decisive question is not:

"Can we find a favorable DOL letter?"

It is:

"Does this specific fact pattern present a legal interpretation question that Procedure 76-1 is designed to answer, and will the final facts remain close enough to the submitted facts for the answer to matter?"

Frequently Asked Questions

What is a DOL advisory opinion?

A written DOL interpretation applying Title I of ERISA, regulations, interpretive bulletins or exemptions to the requester's stated facts under Procedure 76-1.^[1][2]

Is an advisory opinion the same as a regulation?

No. Reliance on the letter is limited to the described parties and facts. A regulation has broader legal application.

Who can request one?

Any individual or organization directly or indirectly affected by ERISA may request an advisory opinion or information letter.^[2]

Does DOL have to issue one?

No. The process is discretionary.^[2]

Are advisory opinions usually prospective?

Yes. DOL describes transactions yet to be entered into as the ordinary setting for these opinions.^[2]

Will DOL answer a hypothetical question?

Generally no. Hypothetical situations are among the categories DOL says it ordinarily will not address through advisory opinions.^[2]

Can I present two alternative structures and ask which one DOL prefers?

Generally no. Alternative proposed transaction paths are among the situations the procedure ordinarily declines.^[2]

Can DOL tell a 401(k) committee whether a particular investment is prudent?

Ordinarily not through this process. The procedure lists application of Section 404(a) to specific conduct among questions DOL generally declines to decide through an opinion.^[2][11]

Can DOL determine fair market value through this process?

The procedure ordinarily excludes several valuation and adequate-consideration questions, including specified fair-market-value determinations.^[2]

What does the request need to include?

Plan identity, detailed facts, full integrated transaction, relevant documents, legal issues, requester's analysis and supporting authority, plus authorization if a representative acts for the requester.^[2]

Do I need to disclose the entire transaction?

Yes. If the request addresses one step of a larger integrated transaction, Procedure 76-1 calls for facts concerning the entire arrangement.^[2]

Must I state my own legal conclusion?

Yes. The requester must state its views and supporting authority even when not urging one particular result.^[2]

Where are requests sent?

DOL's current page permits email submission to EBSAopinionletters@dol.gov and provides the current mailing address for the responsible EBSA office.^[2]

Can counsel submit the request?

Yes, with a statement establishing authority to represent the individual or organization.^[2]

What if the submission is incomplete?

DOL may identify missing requirements or, in its discretion, issue an information letter instead.^[2]

What is an information letter?

A DOL letter calling attention to established ERISA principles or interpretations rather than applying the law to an identified requester's facts with advisory-opinion reliance.^[2][4]

Is an information letter binding?

Section 11 says it is informational only and not binding on DOL for any particular case.^[2]

Can I ask for a conference?

Yes, particularly if you want one if DOL is contemplating an adverse opinion. DOL decides whether and when a conference is appropriate.^[2]

Can I force expedited handling because a closing is approaching?

No. DOL may consider a written priority request showing clear need, but it gives no assurance of timing and does not treat a deadline created by the requester as a business emergency.^[2]

Can I withdraw the request?

Yes, before notice of an intended adverse opinion or issuance of an opinion.^[2]

Does DOL return the file if I withdraw?

No. The procedure states that DOL keeps the correspondence and exhibits.^[2]

Who can rely on an advisory opinion?

Only the parties described in the request, and only to the extent the submitted material facts are complete and accurate and the actual situation conforms to them.^[2]

Can another 401(k) rely on a favorable opinion issued to someone else?

Not under Section 10. Another plan can study it as interpretive guidance but does not inherit the requester's party-specific reliance.^[2]

Can an advisory opinion interpret a prohibited-transaction exemption?

Yes. Procedure 76-1 includes exemptions among the authorities DOL can interpret and apply to specific facts.^[2]

Can an advisory opinion create a new exemption?

No. Individual exemptions and class exemptions are separate forms of administrative relief.^[10][12]

What did Advisory Opinion 2025-04A address?

A specifically described lifetime-income managed-account program and whether it could satisfy the QDIA regulation. DOL preserved separate fiduciary selection and monitoring duties.^[5]

What did Advisory Opinion 2025-03A address?

Whether Morgan Stanley's described deferred incentive compensation arrangement was an ERISA pension plan or fell within the regulatory bonus-program exclusion. DOL concluded the exclusion applied.^[6]

Why is Advisory Opinion 2025-01A important procedurally?

It rescinded Advisory Opinion 2023-01A because the earlier opinion no longer reflected DOL's views.^[7][8]

Can DOL rescind an older advisory opinion?

Yes. 2025-01A is a current example.^[7]

Is Procedure 76-1 still active in 2026?

Yes. DOL's database lists Advisory Opinion 2026-01A dated May 1, 2026.^[1][9]

Are advisory opinions public?

Yes. Procedure 76-1 provides for public inspection of advisory opinions and access to background files, subject to its treatment of proprietary information.^[2]

Can proprietary information be protected?

The procedure allows proprietary information to be separately identified and provides for deletion of proprietary references before public disclosure of the opinion.^[2]

Does a favorable advisory opinion prove fiduciary prudence?

No. The procedure generally avoids applying Section 404(a) to particular conduct, and opinions such as 2025-04A preserve separate selection and monitoring duties.^[2][5][11]

Sources & References

1. U.S. Department of Labor — Employee Benefits Security Administration: Advisory Opinions — https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/advisory-opinions
2. U.S. Department of Labor — Employee Benefits Security Administration: ERISA Procedure 76-1 for ERISA Advisory Opinions — https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/advisory-opinions/filing-requests-for-erisa-aos
3. U.S. Department of Labor — Employee Benefits Security Administration: Opinion Letters — https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resources/opinion-letters
4. U.S. Department of Labor — Employee Benefits Security Administration: Information Letters — https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/information-letters
5. U.S. Department of Labor — Employee Benefits Security Administration: Advisory Opinion 2025-04A — https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/advisory-opinions/2025-04a
6. U.S. Department of Labor — Employee Benefits Security Administration: Advisory Opinion 2025-03A — https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/advisory-opinions/2025-03a
7. U.S. Department of Labor — Employee Benefits Security Administration: Advisory Opinion 2025-01A — https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/advisory-opinions/2025-01a
8. U.S. Department of Labor — Employee Benefits Security Administration: Advisory Opinion 2023-01A — https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/advisory-opinions/2023-01a
9. U.S. Department of Labor — Employee Benefits Security Administration: Advisory Opinion 2026-01A — https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/advisory-opinions/2026-01a
10. U.S. Department of Labor — Employee Benefits Security Administration: Individual Exemptions — https://www.dol.gov/agencies/ebsa/laws-and-regulations/rules-and-regulations/exemptions/individual
11. Legal Information Institute / U.S. Code: 29 U.S.C. §1104 — Fiduciary Duties — https://www.law.cornell.edu/uscode/text/29/1104
12. Legal Information Institute / U.S. Code: 29 U.S.C. §1106 — Prohibited Transactions — https://www.law.cornell.edu/uscode/text/29/1106

Educational Disclaimer

ROIStreet publishes educational content about 401(k) fiduciary duties, ERISA interpretation and Department of Labor guidance. This article is not legal, fiduciary, tax, investment, securities, regulatory or plan-administration advice. Advisory-opinion usefulness depends on the exact parties, material facts, legal authority and current status of the opinion. An opinion can be rescinded, superseded or undermined by later statutes, regulations or court decisions. Procedure 76-1 is an interpretive process, not a substitute for prohibited-transaction exemptive relief, plan-document compliance, valuation, fiduciary prudence or legal advice on a specific transaction.

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