What Is a DOL Regulatory Procedure Notice for a 401(k) Plan?

A petition asks DOL to change the rule. It does not change the rule.

EBSA formalized that distinction on January 16, 2025 through:

Regulatory Procedure Notice No. 2025-01 — Procedures for Rulemaking Petitions.^[1][2]

The Notice explains how a member of the public can ask EBSA to:

• issue a rule
• amend a rule
• repeal a rule

when the requested action concerns a rule of general application within EBSA's authority.^[1]

That gives the retirement industry a formal route for saying:

"This regulation should change."

It does not provide a shortcut around actual rulemaking.

A 401(k) plan continues following current law while the petition is pending.

Where Does the Right to Petition Come From?

Not from Notice 2025-01.

The Administrative Procedure Act supplies the core right.

5 U.S.C. 553(e) says each agency must give an interested person the right to petition for:

• issuance
• amendment
• repeal

of a rule.^[4]

The EBSA notice standardizes how that existing statutory right is used within the agency.

That hierarchy matters.

APA: creates the petition right.

Notice 2025-01: creates the EBSA filing process.

The procedure should not be described as though DOL invented the underlying right in 2025.

Who Can File?

The Notice says:

Anyone may ask EBSA to issue, amend or repeal a rule of general application within the agency's authority.^[1]

That can include, depending on the issue:

• plan sponsors
• participant advocates
• service providers
• recordkeepers
• investment managers
• professional associations
• trade groups
• individuals.

The petitioner does not have to be the party currently regulated most directly.

But the requested action has to be within EBSA's rulemaking authority.

What Does "Rule of General Application" Mean Here?

The petition procedure is directed at generally applicable regulatory policy.

Examples might include a request to:

• amend a 401(k) disclosure regulation
• revise a fiduciary regulation
• repeal an obsolete regulatory requirement
• issue a generally applicable rule addressing a recurring ERISA problem.

That is different from asking:

"How does ERISA apply to this one transaction?"

The second question is more likely to involve an advisory-opinion process.

It is also different from asking:

"Can DOL exempt this transaction from the prohibited-transaction rules?"

That uses exemption procedures.

The requested remedy determines the filing vehicle.

What Makes the Filing Complete?

Notice 2025-01 requires two distinct pieces.^[1]

Contact-information statement

This is separate from the petition itself.

Substantive petition

This contains the substantive request.

EBSA says incomplete submissions will not be processed.^[1]

It also says duplicative submissions will not be processed.

That creates a practical threshold before the policy merits are reached:

first make the filing processable.

What Must Be in the Contact Statement?

The separate statement must include:^[1]

• telephone number
• email address or mailing address
• a statement identifying whether the petitioner, an affiliate or a related entity is the subject of an EBSA enforcement action.

That last requirement is unusually specific.

The Notice does not say that being under investigation or enforcement disqualifies the petitioner.

It says the status must be disclosed.

Do not infer a penalty or presumption that the document does not create.

Is the Contact Statement Public?

The Notice says it will not be posted.^[1]

That matters because the petition itself is treated differently.

EBSA says rulemaking petitions and its decisions will be posted on the agency website.^[1]

The submission architecture is therefore deliberate:

contact statement: separate and not posted.

petition: public regulatory record.

A petitioner should draft with that distinction in mind.

What Must the Petition Itself Say?

The Notice requires statements that:^[1]

• present the text or substance of the requested rule or amendment, or identify the rule or portion to be repealed
• explain the petitioner's interest
• explain why issuance, amendment or repeal is sought
• identify the problem
• explain why action is necessary
• identify the legal authority for the requested action.

EBSA also encourages petitioners to identify affected:

• statutory provisions
• existing EBSA rules.^[1]

Additional data can be included.

The petitioner can also explain injury or harm that may occur if the petition is denied.

That is substantially more useful than sending DOL a letter saying:

"This regulation is bad."

Why Does Proposed Text Matter?

Because the agency needs to know what change is actually being requested.

There is a major difference between:

"Modernize electronic disclosure."

and:

"Amend paragraph X to replace condition A with condition B for the following reason."

A petition does not necessarily need legislative-counsel-quality drafting.

But the Notice expects enough specificity to understand:

• what changes
• where it changes
• why EBSA has authority.

Vagueness makes agency evaluation harder.

Why Does Legal Authority Matter?

EBSA cannot adopt a rule merely because the requested policy seems attractive.

The petition should identify why DOL has statutory authority to act.^[1]

For a 401(k) issue, that might require analysis of:

• ERISA section delegated to DOL
• existing implementing regulations
• interaction with Treasury or IRS authority
• statutory limits
• later legislation.

A petition that asks EBSA to do something Congress assigned to another agency has a threshold problem.

Policy merit cannot cure missing jurisdiction.

What Happens After EBSA Receives a Complete Filing?

The Notice establishes an ordinary processing sequence.^[1]

First:

within 7 business days

EBSA sends written acknowledgement of a complete submission.

Then the petition goes to the appropriate agency office.

The ordinary target for disposition is:

within 90 calendar days.^[1]

EBSA can extend that period once for:

up to 60 additional days

with written notice to the petitioner.^[1]

Those are procedural targets.

They are not a guarantee that the requested rule will be issued within 90 days.

What Does "Disposition" Mean?

It means EBSA decides what to do with the petition.

The Notice distinguishes:

• acceptance
• denial.^[1]

If accepted, the written notice identifies next steps.

If denied, EBSA generally explains the grounds.^[1]

Acceptance does not mean:

the requested regulation is now law.

It means the agency has accepted the request for further regulatory consideration.

The next step could still require a separate process.

Acceptance Is Not Adoption

This is the most important operational point.

Suppose a retirement-industry association files a petition asking DOL to amend a disclosure regulation.

EBSA accepts the petition.

The association announces:

"DOL approved our proposed change."

That wording would be wrong unless DOL separately completed the legal action needed to change the regulation.

An accepted petition can lead to:

• further study
• stakeholder meetings
• an RFI
• an NPRM
• public comment
• another form of agency action
• no immediate regulatory text.

Current CFR text does not change merely because EBSA likes the question.

What Happens If EBSA Wants Public Comment on the Petition?

The ordinary timetable changes.

EBSA may publish a Federal Register notice seeking public input.^[1]

If it does:

the ordinary Section V timing framework is waived.^[1]

That means a petitioner should not continue counting:

90 days + 60

as though the public-comment process has no effect.

EBSA says it will notify the petitioner of the disposition within a reasonable period after using that process.^[1]

This is an explicit exception inside the Notice.

Why Would EBSA Ask the Public About a Petition?

Because a petition can present only one side of a policy issue.

A generally applicable ERISA rule can affect:

• millions of participants
• sponsors
• recordkeepers
• advisers
• insurers
• investment managers
• auditors
• other agencies.

Public comment can test:

• assumptions
• data
• costs
• unintended effects
• alternative language
• legal objections.

The petition opens the question.

The public record can test the answer.

Does EBSA Have to Explain a Denial?

The Notice says a denial will explain the grounds unless:^[1]

• it affirms a prior denial
• the denial is self-explanatory.

That structure is consistent with 5 U.S.C. 555(e).

The APA says prompt notice must be given when a written petition or request is denied and ordinarily requires:

a brief statement of the grounds for denial.^[5]

That does not mean a petitioner is entitled to a favorable outcome.

It means unexplained agency rejection is not the default statutory model.

Does the APA Require DOL to Grant a Good Petition?

No.

Section 553(e) creates a right to petition.^[4]

It does not say:

the agency must adopt the petitioner's preferred regulation.

Agencies retain substantial policy discretion within the statutes they administer.

The important right is procedural:

the public can formally ask the agency to reconsider generally applicable rules.

That is different from possessing a right to the requested result.

Auer v. Robbins Shows Why Petitions Matter

In Auer v. Robbins, the Supreme Court addressed a challenge involving Department of Labor salary-basis regulations.^[8]

One issue concerned the argument that changed circumstances made the existing rule arbitrary.

The Court said the proper procedure for that kind of request was the APA petition process under Section 553(e).^[8]

The logic is important.

A petition lets the agency consider:

• changed facts
• new evidence
• new policy arguments

through a fresh administrative process.

It is a forward-looking tool.

Petitioning Is Different From Attacking the Original Rule

Suppose a regulation was validly issued 20 years ago.

A company now believes the market has changed enough that the rule should be amended.

That is not necessarily the same claim as:

the rule was unlawful when issued.

A petition can say:

"Whatever was true then, the rule should change now because circumstances have changed."

That distinction can matter in administrative-law litigation.

The petition creates a new agency record about the current request.

Can a Denial Be Reviewed in Court?

Sometimes.

The exact route and standard depend on the governing statute, jurisdiction and nature of the agency action.

Supreme Court cases such as Auer and Massachusetts v. EPA illustrate that denials of rulemaking petitions can have judicial-review consequences in appropriate settings.^[8][9]

That does not mean every EBSA denial automatically produces a successful lawsuit.

The practical point is narrower:

a petition can create a discrete agency decision and reasons record.

That can matter later.

What Does the Notice Say About Additional Legal Rights?

It includes an explicit disclaimer.^[1]

Notice 2025-01 says it is not intended to create any additional:

• right
• benefit
• substantive entitlement
• procedural entitlement

enforceable against the United States or others.^[1]

That clause matters when reading the 7-day and 90-day timelines.

The Notice provides agency procedure.

It expressly rejects the idea that the document itself creates extra legally enforceable rights beyond applicable law.

Can a Petitioner Put Confidential Information in the Petition?

That is risky.

EBSA says petitions and decisions will be posted publicly.^[1]

The Notice warns petitioners not to include information they do not want made public.

The separate contact statement is not posted.^[1]

That means a petition involving proprietary evidence needs careful drafting.

Do not assume:

submitted directly to DOL = confidential.

The procedure says the opposite for the petition itself.

Petition vs Public Comment

These are easy to confuse.

Substantive petition

Asks EBSA to:

• issue
• amend
• repeal

a rule.

It can initiate a new policy question.

Public comment

Responds to an agency action already open for comment.

That may be:

• NPRM
• RFI
• exemption proposal
• other notice.

If DOL has already published an NPRM on the exact issue, the most direct mechanism is usually the docket specified in that proposal.

Creating a separate petition does not replace the comment process.

INV-189 and INV-190 cover those stages.

Petition vs Advisory Opinion

An advisory opinion applies ERISA to a specific factual situation under Procedure 76-1.^[10]

A petition asks for a generally applicable rule change.

Example:

"Does ERISA Section X apply to this specific arrangement?"

Potential advisory-opinion question.

"Amend the regulation so every arrangement of this class is treated differently."

Potential rulemaking-petition question.

Those are different remedies.

Sending the right facts to the wrong process wastes time.

Petition vs Information Letter

An information letter generally calls attention to a well-established ERISA principle without applying it to a specific factual situation.^[10]

A petition asks the agency to change generally applicable regulatory policy.

That distinction is especially important when a petitioner says:

"DOL should clarify the rule."

Does the requester want:

• explanation of what the current rule already means
• formal amendment of the rule?

The answer determines the source type.

INV-182 covers information letters.

Petition vs Prohibited-Transaction Exemption

This is another major wrong-door risk.

DOL has separate procedures for administrative prohibited-transaction exemptions.^[11][12]

Those rules cover applications for relief under authorities such as ERISA Section 408(a).

The exemption process can require:

• transaction facts
• representations
• conditions
• public disclosure
• proposed exemption notice
• interested-person notification.

A rulemaking petition is not a substitute for an exemption application.

If the actual request is:

"Allow this otherwise prohibited transaction under specified conditions,"

start with the exemption procedure.

Petition vs ERISA Advisory Council Input

The Council is a statutory advisory body that studies policy issues and makes recommendations to the Secretary.^[13]

The public can:

• testify
• submit information
• participate in Council processes.

That can influence DOL policy.

It does not create the same formal petition disposition process described in Notice 2025-01.

INV-188 covers the Council.

The two channels can address similar policy concerns while producing different records.

The Executive Order 14094 Problem Is a Good Freshness Test

Notice 2025-01 is dated:

January 16, 2025.^[1][2]

Its footnote cites:

• the APA
• Executive Order 14094, Modernizing Regulatory Review.^[1][2][6]

Four days later, on January 20, 2025, Executive Order 14148 rescinded Executive Order 14094.^[7]

That sequence creates an obvious question:

Did the rulemaking-petition procedure disappear too?

The available current evidence says no.

Why Didn't the Statutory Petition Right Disappear?

Because Executive Order 14094 was not the source of Section 553(e).

The APA remains federal statutory law.

Current 5 U.S.C. 553(e) still says agencies must give interested persons the right to petition for issuance, amendment or repeal of a rule.^[4]

An executive order can direct executive-branch administration.

It does not repeal an Act of Congress.

So the rescission removed one cited executive-order support.

It did not erase the statutory right.

Is Notice 2025-01 Still an EBSA Resource in 2026?

As reviewed August 30, 2026, yes.

EBSA's current Rules & Regulations page still lists:

Regulatory Procedure Notice No. 2025-01

under its Code of Federal Regulations resources.^[3]

The dedicated Notice page also remains live.^[1]

That is important current-status evidence.

It means a research memo should not say:

"EO 14094 was rescinded, therefore Notice 2025-01 was rescinded."

No cited DOL source supports that leap.

What Should Be Said About the Stale EO Citation?

Precisely this:

The Notice still cites an executive order that is no longer in force.

Then separate the consequences.

Stale citation: EO 14094 was rescinded.

Current statutory foundation: 5 U.S.C. 553(e) remains.

Current agency status: DOL continues to publish Notice 2025-01 as an active rules resource.

That is better legal research than choosing either extreme:

"Nothing changed."

or:

"The entire notice is dead."

One supporting source changed.

The current procedure must be validated independently.

Worked Example: Trade Association Wants a Disclosure Rule Changed

A trade association believes an existing 401(k) disclosure regulation requires duplicative notices.

It wants the regulatory text amended for all covered plans.

That fits the basic shape of Notice 2025-01.

A useful petition would identify:

• exact CFR provision
• proposed amendment
• ERISA authority
• operational problem
• participant impact
• cost evidence
• alternative approaches.

If EBSA accepts the petition, the association should report:

"EBSA accepted the petition for further consideration."

Not:

"DOL approved the amendment."

Worked Example: Plan Sponsor Needs a Fact-Specific Interpretation

Sponsor has an unusual employer structure and wants to know whether the arrangement is one ERISA plan.

The sponsor files a rulemaking petition.

Wrong tool.

The sponsor is not necessarily asking DOL to rewrite generally applicable regulation.

It wants DOL to apply ERISA to a defined factual situation.

That points toward Procedure 76-1 and the advisory-opinion process.^[10]

Identify the desired agency product before drafting.

Worked Example: Investment Manager Wants Transaction Relief

Manager needs prohibited-transaction relief for a particular arrangement.

It submits Notice 2025-01 asking DOL to "approve" the transaction.

Again, wrong process.

DOL's exemption procedures under Part 2570 govern administrative exemption applications.^[11][12]

The petition process addresses generally applicable rules.

The exemption process addresses statutory relief under its own standards.

Worked Example: Petitioner Treats Acceptance as Victory

EBSA sends a letter accepting the petition and identifying next steps.

Press release says:

"DOL adopts requested 401(k) reform."

That is premature.

A generally applicable regulatory change may still require:

• drafting
• review
• Federal Register publication
• public comment
• final agency action
• effective date.

The petition is upstream of those events.

Acceptance is a process result.

Not a regulatory result.

Worked Example: Confidential Cost Model Is Included

Petitioner attaches a proprietary pricing model to prove compliance burden.

The document contains data it does not want competitors to see.

Problem:

Notice 2025-01 says petitions will be posted and warns against including information the petitioner does not want made public.^[1]

The separate contact statement is the non-posted component.

A petitioner should decide what evidence can safely enter a public rulemaking record before filing it.

Worked Example: EO Rescission Is Mistaken for Notice Rescission

Research memo reads the Notice footnote.

It discovers EO 14094 was rescinded four days later.

Memo concludes:

"EBSA no longer accepts rulemaking petitions under Notice 2025-01."

That conclusion skips current agency evidence.

In August 2026, EBSA still lists the Notice on its Rules & Regulations page.^[3]

The APA petition right remains.^[4]

The correct note is:

"One cited executive order was rescinded; the statutory petition right and EBSA's currently posted procedure remain."

A Petition Should Be Treated as Policy Evidence, Not Current Law

A public petition can be useful even before EBSA decides it.

It can show:

• what an industry group wants changed
• claimed compliance costs
• legal theories
• participant concerns
• proposed regulatory language.

But it remains the petitioner's position.

If EBSA later:

• requests comments
• issues an RFI
• proposes a rule
• denies the request

cite that later agency action separately.

The source hierarchy should not collapse.

What Should a Committee Do When a Vendor Cites One?

Ask three questions.

Who filed it?

DOL or a private party?

If private, the policy claims belong to the petitioner.

What did EBSA do with it?

• acknowledged
• accepted
• denied
• sought comments
• no public disposition yet?

Did any operative rule change follow?

Check:

• Federal Register
• current CFR
• DOL rule page.

A petition can be influential and still have zero current compliance effect.

A Practical Vehicle Matrix

The hard part is often not writing the request.

It is choosing the correct agency vehicle.

Petition Validation Checklist

Before treating a petition as meaningful regulatory evidence, verify:

Current procedure

Is Notice 2025-01 still posted by EBSA?

Petition type

Does it request:

• issuance
• amendment
• repeal

of a generally applicable rule?

Completeness

Does it include:

• separate contact statement
• requested text or substance
• petitioner's interest
• problem
• necessity
• legal authority?

Public status

Has EBSA posted the petition?

Disposition

Has EBSA:

• accepted
• denied
• opened public comment?

Timing

Is the ordinary 90-day period still relevant, or was it waived because public comment opened?

Later rulemaking

Did the petition lead to:

• RFI
• NPRM
• final rule
• no action?

Current law

Did the CFR actually change?

Authority freshness

Are cited statutes and executive orders still current?

Source attribution

Is a claim the petitioner's, EBSA's or DOL's?

Those questions prevent a private policy request from being mistaken for agency law.

Fast Answers

What is Regulatory Procedure Notice No. 2025-01?

EBSA's January 2025 procedure for submitting and processing petitions asking the agency to issue, amend or repeal rules of general application.^[1]

What law gives the public the right to file?

5 U.S.C. 553(e).^[4]

Who can petition?

The Notice says anyone may ask EBSA to take covered rulemaking action within its authority.^[1]

What makes a complete submission?

A separate contact-information statement plus the rulemaking petition.^[1]

What does the petition need to contain?

The requested rule action, petitioner's interest, problem, need for action and legal authority, among other specified information.^[1]

How quickly does EBSA acknowledge a complete petition?

The ordinary target is within 7 business days.^[1]

How quickly does EBSA decide?

The ordinary target is 90 calendar days, with one possible extension of up to 60 days.^[1]

Does that timeline always apply?

No. If EBSA opens public comment on the petition, the ordinary timetable is waived.^[1]

Does acceptance mean the requested rule is adopted?

No.

Are petitions public?

The Notice says petitions and EBSA decisions will be posted. The separate contact-information statement will not be posted.^[1]

Is this the procedure for an advisory opinion?

No. Procedure 76-1 governs advisory opinions.^[10]

Is this the procedure for a prohibited-transaction exemption?

No. Separate exemption procedures apply.^[11][12]

Was Executive Order 14094 rescinded?

Yes, on January 20, 2025.^[7]

Did that eliminate the APA petition right?

No. 5 U.S.C. 553(e) remains in force.^[4]

Is Notice 2025-01 still on DOL's site?

Yes. As reviewed August 30, 2026, EBSA still lists it on its current Rules & Regulations page.^[1][3]

What is the safest one-sentence rule?

Use a rulemaking petition to ask DOL to change generally applicable rules; keep following current law until valid agency action actually changes them.

Sources & References

1. U.S. Department of Labor — Employee Benefits Security Administration: Regulatory Procedure Notice No. 2025-01 — Procedures for Rulemaking Petitions — https://www.dol.gov/agencies/ebsa/laws-and-regulations/rules-and-regulations/regulatory-procedure-notice-2025-01
2. U.S. Department of Labor — Employee Benefits Security Administration: Regulatory Procedure Notice No. 2025-01 — PDF — https://www.dol.gov/sites/dolgov/files/ebsa/laws-and-regulations/rules-and-regulations/regulatory-procedure-notice-2025-01.pdf
3. U.S. Department of Labor — Employee Benefits Security Administration: Rules & Regulations — https://www.dol.gov/agencies/ebsa/laws-and-regulations/rules-and-regulations
4. Legal Information Institute / U.S. Code: 5 U.S.C. §553 — Rule Making — https://www.law.cornell.edu/uscode/text/5/553
5. Legal Information Institute / U.S. Code: 5 U.S.C. §555 — Ancillary Matters — https://www.law.cornell.edu/uscode/text/5/555
6. The White House / Federal Register: Executive Order 14094 — Modernizing Regulatory Review — https://www.federalregister.gov/documents/2023/04/11/2023-07760/modernizing-regulatory-review
7. The White House / Federal Register: Executive Order 14148 — Initial Rescissions of Harmful Executive Orders and Actions — https://www.federalregister.gov/documents/2025/01/28/2025-01901/initial-rescissions-of-harmful-executive-orders-and-actions
8. Supreme Court of the United States / Legal Information Institute: Auer v. Robbins, 519 U.S. 452 (1997) — https://www.law.cornell.edu/supremecourt/text/519/452
9. Supreme Court of the United States / Legal Information Institute: Massachusetts v. EPA, 549 U.S. 497 (2007) — https://www.law.cornell.edu/supct/html/05-1120.ZO.html
10. U.S. Department of Labor — Employee Benefits Security Administration: ERISA Procedure 76-1 for Advisory Opinions — https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/advisory-opinions/filing-requests-for-erisa-aos
11. U.S. Department of Labor — Employee Benefits Security Administration: Exemption Procedures Under Federal Pension Law — https://www.dol.gov/node/63366
12. U.S. Department of Labor — Employee Benefits Security Administration: 29 CFR Part 2570 — Prohibited Transaction Exemption Procedures — https://www.dol.gov/node/64542
13. U.S. Department of Labor — Employee Benefits Security Administration: ERISA Advisory Council — https://www.dol.gov/agencies/ebsa/about-ebsa/about-us/erisa-advisory-council
14. U.S. Department of Labor — Employee Benefits Security Administration: Public Comments — https://www.dol.gov/agencies/ebsa/laws-and-regulations/rules-and-regulations/public-comments
15. U.S. Department of Labor — Employee Benefits Security Administration: Regulatory Agenda — https://www.dol.gov/agencies/ebsa/laws-and-regulations/regulatory-agenda

Educational Disclaimer

ROIStreet publishes educational content about 401(k) plans, ERISA, Department of Labor rulemaking, Administrative Procedure Act petitions, regulatory procedure notices and public participation in agency processes. This article is not legal, fiduciary, tax, investment, lobbying, regulatory or plan-administration advice. A rulemaking petition does not itself amend the CFR, create an exemption, supply fact-specific advisory-opinion reliance or guarantee that EBSA will initiate or complete rulemaking. Current compliance should be verified against operative statutes, current CFR text, valid exemptions, current judicial decisions and later DOL action. Agency procedures, executive orders and filing instructions should also be checked for current status before submitting a petition.

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