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New DOL Rule on Investment Advice

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WASHINGTON—The Department of Labor said today that agents will be able to provide computerized investment advice to 401(k) beneficiaries, on two conditions. The first is that the computer model must be certified as unbiased by an independent expert. The second is that the fees paid to the agent do not vary based on the investment selected.

The rule will be published Tuesday in the Federal Register and will go into effect Dec. 27, DOL officials said. The final rule climaxes an initiative that began when the Pension Protection of 2006 was enacted.

The law amends the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code to provide an exemption to what was, until now, a prohibited transaction. The intent of the amendment is to improve participant access to fiduciary investment advice while preserving certain safeguards and conditions that would prevent investment advisors from providing biased advice or advice that is not in a participant’s best interest.

DOL officials cautioned that the computerized investment rule is separate from and does not affect the agency’s proposed rule on the definition of fiduciary investment advice, which the department recently announced that it will re-propose.

Phyllis C. Borzi, director of the Employment Benefits Security Administration and a DOL assistant secretary, said, “This rule will make high-quality fiduciary investment advice more accessible, while providing important safeguards to minimize potential conflicts of interest.”

The new rule mandates other restrictions, including the disclosure of the adviser’s fees and an annual audit of the arrangement for compliance with the regulation.

The prohibited transaction rules in ERISA and the IRC generally prevent a fiduciary investment adviser from recommending plan investment options if the adviser receives additional fees from the investment providers.

Although these rules protect participants from conflicts of interest, ERISA provides exemptions from the rules in appropriate circumstances and permits the department to grant exemptions that have participant-protective conditions.

The new regulation implements an exemption that Congress enacted as part of the Pension Protection Act of 2006 to improve participant access to fiduciary investment advice, which contains certain safeguards and conditions to prevent investment advisers from providing biased advice that is not in a participant’s best interest.