July 26, 2011

Congress to DOL's Borzi: Repropose Fiduciary Rule, Too Broad

As Borzi defends fiduciary rule proposal, House subcommittee chairman says it's an 'ill-conceived expansion' of the fiduciary standard

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Lawmakers told Phyllis Borzi, head of the Department of Labor’s Employee Benefits Security Administration (EBSA) on Tuesday, to repropose the agency's controversial regulation amending the definition of fiduciary under the Employee Retirement Income Security Act (ERISA), because the definition offered is too broad and because EBSA failed to examine the full cost of expanding the definition.

phyllis borziRep. Phil Roe, R-Tenn., chairman of the House Subcommittee on Health, Employment, Labor and Pensions, told Borzi (left) during a hearing that his committee held on Tuesday to assess the impact of EBSA’s fiduciary proposal, that the current proposal “is an ill-conceived expansion of the fiduciary standard.”

He said that the proposal would “undermine efforts by employers and service providers to educate workers on the importance of responsible retirement planning,” and “may deny investment opportunities and drive up costs for the individuals it is intended to protect.”

Furthermore, Roe argued, the EBSA “failed to examine all of the costs of its proposal,” including how those costs affect the IRA market.

Brad Campbell, former head of EBSA who’s now counsel with Schiff Hardin in Washington, told AdvisorOne on Tuesday that “the most striking aspect of the hearing” was the “strong, bipartisan call for reproposing the regulation rather than rushing to a final rule in November.” There was a “clear bipartisan consensus that the rule is not ready for prime time and should be reproposed.”

Campbell says EBSA “should heed this congressional warning, as the rule will rightly face legal challenge if [EBSA] continues on their current path.”

Congress as well as members of the securities industry may seek to overturn the EBSA rule through court action. On Friday, the U.S. Circuit Court of Appeals for D.C., struck down a Securities and Exchange Commission rule granting outside investors proxy access rights. The decision, by Judge Douglas Ginsburg, determined that the SEC had failed to consider the economic impact of the rule.

Ken Bentsen, executive vice president for public policy and advocacy at the Securities Industry and Financial Markets Association (SIFMA), told subcommittee members in his testimony that the DOL’s proposed revisions to fiduciary “must be withdrawn and reproposed and that necessary exemptions must be promulgated in advance of any final rule.”

Further, he said, there must be sufficient coordination with, and consideration of, the Securities and Exchange Commission’s (SEC) likely action under Section 913 of Dodd-Frank,” which authorized the SEC to write a rule to put brokers under a fiduciary standard. The SEC just started working on that rule.

Borzi assured members of Congress that EBSA is collaborating with the SEC, Treasury, the Commodities Futures Trading Commission (CFTC) and the IRS in crafting its fiduciary rule. However, she said, “I can’t promise that [EBSA’s and the SEC’s fiduciary rules] will [include] the same standards because we have two different statutory mandates.” The SEC and EBSA are “working to integrate our rules and we will not put out final regulations that contradict each other.”

SIFMA’s Bentsen also argued that DOL has “no enforcement authority” over IRAs.

But Borzi went on to defend the EBSA’s fiduciary proposal by stating the “narrowness” of the current fiduciary regulation—which has been on the books since ERISA was enacted in 1974—“has harmed plans, participants and IRA holders. We see it in the research that has linked adviser conflicts with underperformance. We see it in SEC reviews of certain financial sales practices and FINRA adjudications. We see it in EBSA’s own enforcement experience. And finally we see it in the underperformance of IRAs relative to plans.”

EBSA estimates that from 1998 to 2007, the average annual returns for IRAs were 4.5%, compared with 5.4% for 401(k)s, she said.

Borzi also stated that under the current proposal, “brokers will not have to eliminate commission-based fee arrangements, restructure all of their compensation as wrap fees, or convert all brokerage IRAs to advisory accounts.”

Exemptions, she said, “already on the books allow brokers who provide fiduciary advice to receive commissions for trading the types of securities and funds that make up the large majority of IRA assets today.”

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