The move neither kills its controversial fiduciary duty rule, nor does it provide a long-rumored 180-days of compliance relief, but the Department of Labor is nonetheless seeking to delay applicability.
In April 2016, the Department of Labor finalized a new rule that creates a fiduciary duty for brokers and registered investment advisers who offer retirement advice. It provides exemptions that, if applied for and granted, would allow these advisers to maintain fee-based arrangements.
On Wednesday, the Department of Labor announced a proposed extension of the applicability dates for the rule and related exemptions, including the Best Interest Contract Exemption, from April 10 to June 9, 2017.
The proposed extension will be published in the March 2, 2017, edition of the Federal Register. The Department will accept public comments on the proposed extension for 15 days following its publication.
The delay is intended to give the department time to collect and consider information related to the issues raised in a Feb. 3 presidential memorandum before the rule and exemptions become applicable. Comments on issues raised in the memorandum will be accepted for 45 days. The Department also invites comments regarding whether a different delay period would best serve the interests of investors and the industry.
The memorandum, issued by President Donald J. Trump, directed the Labor Department to review the rule “to determine whether it may adversely affect the ability of Americans to gain access to retirement information and financial advice.” As part of this examination, it was directed to prepare an updated economic and legal analysis concerning the likely impact of the rule. That analysis will consider, among other things:
Whether the anticipated applicability of the rule has harmed or is likely to harm investors due to a reduction of Americans' access to certain retirement savings offerings, retirement product structures, retirement savings information, or related financial advice;
whether it has resulted in dislocations or disruptions within the retirement services industry that may adversely affect investors or retirees;
and whether the Fiduciary Duty Rule is likely to cause an increase in litigation, and an increase in the prices that investors and retirees must pay to gain access to retirement services.
If the Labor Department concludes that the rule is “inconsistent” with Administration priorities, it was told to “publish for notice and comment a proposed rule rescinding or revising the rule, as appropriate and as consistent with law.”
The Financial Services Roundtable praised the delay. “FSR believes a best-interest standard should be implemented for all investment accounts and that financial professionals should act in the ‘best interest’ of their customers,” Tim Pawlenty, CEO of FSR, said in a statement. “But such a requirement should be implemented without miles of bureaucratic red tape.” He added that FSR believes the Securities and Exchange Commission should craft a best-interest standard for all brokerage accounts (including IRAs) held by retail customers, and the Labor Department should fully rescind its rule on this matter.
“The action by the Labor Department proposing to delay its conflicts of interest rule by 60 days certainly will not be the last chapter in this regulatory saga,” says David Tittsworth, counsel in Ropes & Gray’s investment management practice and former president and CEO of the Investment Adviser Association.
“The delay will provide some needed certainty to firms that are affected by the rule,” he added. “But it is short-term relief. The delay will not resolve the bigger issues surrounding the rule.”
In its proposing release, the Labor Department states that the review of the rule ordered by the president may take longer than the 60 day extension. “So, the key question of whether any significant revisions to the rule will be forthcoming—or rescinding the rule entirely—will probably not be resolved until sometime after the 60 day extension,” Tittsworth says. “The content of the DOL’s review obviously will be a major factor in what happens next.”
It is also possible that there could be legislative or judicial developments in the coming days and weeks that affect the rule. “To say the least, the status of the DOL’s rule is a moving target and interested parties need to stay tuned,” he added.
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