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DOL to Advisors: Got Fiduciary Rule Questions? Ask Us

By Melanie Waddell

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The Department of Labor plans to provide a “fair measure” of guidance on its rule to amend the definition of fiduciary on retirement advice and is eager to hear from advisors and stakeholders about their concerns, Timothy Hauser of DOL’s Employee Benefits Security Administration said Tuesday.

“Any problems you’re wrestling with we’d love to hear from you,” said Hauser, EBSA’s deputy assistant secretary for program operations and one of the main architects of DOL’s conflicts of interest rule. “I’d much rather give advice out early then to have you build systems and then we say, ‘they don’t comply.’”

Hauser spoke Tuesday at the Investment Company Institute’s conference in Washington on assessing the policy and practical challenges of DOL’s rule.

Hauser said that while “a lot of issues and concerns” have been raised, “people aren’t ready to give us specific questions.” He told reporters after his remarks that the responses from advisors and stakeholders about the final rule “have been muted,” with the main concern voiced is “they need more time” to comply.

When asked on the sidelines of the conference in his talk with reporters if the compliance date would be extended, Hauser replied: “Never say never,” but firms and advisors and others need to comply under the current timeline.

“If we had all the answers right now, we couldn’t get it done by Jan. 2018,” said Anthony Palermo, vice president and senior operations relationship manager at American Funds.

The fiduciary rule itself becomes effective April 10, 2017, Hauser said, with “the full conditions of the exemptions” in effect in January 2018.

Hauser said that he expects DOL to issue Q&A guidance on a “rolling basis,” as it’s the “most efficient” means. However, he noted that DOL would like to hear from “a fair number of people” about their concerns before issuing such guidance. “I’d encourage you to reach out. You can call or write, it doesn’t have to be formal.”

As to enforcing the rule, Hauser said that in the “near term, which I would view extending to January 2018, the goal is to assist and facilitate compliance” with the rule, “not finding litigation targets.”

But Paul Schott Stevens, ICI’s president and CEO, noted during remarks at the event that ICI members are “frustrated with the course that’s ahead” in complying with DOL’s rule, noting that there’s “real reservations and puzzlement about the way forward under the rule” and that “people are now investing in new efforts to conform.” He noted that ICI “still believes that the fundamental, far-reaching questions raised by defining a fiduciary standard should be addressed by Congress through legislation that could apply to all financial advisors for all accounts – not through a litigation-oriented contractual regime, imposed by regulation and applied solely to retirement savings.”

With its final fiduciary rule, Stevens continued, DOL “has launched, in effect, a grand experiment to see whether investment providers can continue to meet retirement savers’ needs under the strictures of a novel contractual regime never anticipated by ERISA – and under constant threat of strike-suit lawyers and class-action litigation.”

Said Stevens: “None of us – in candor, not even DOL — knows exactly how this experiment is going to play out.”

Rep. Phil Roe, R-Tenn., reiterated during luncheon remarks at the ICI event that the House’s joint resolution to block DOL’s rule under the Congressional Review Act will be vetoed by President Barack Obama if it reaches his desk.

Roe co-sponsored the resolution, which passed the House on April 29, along with Reps. Ann Wagner, R-Mo. and Charles Boustany, R-La.

If Donald Trump wins the presidency, Roe said, “and we are able to legislate” on DOL’s rule, there’s a “great chance to overturn some of this [the rule].” But if Hillary Clinton wins the White House, “you won’t see change” in DOL’s rule.

Roe said that he’s now working on a bill that would “begin [retirement] savings at birth.” If re-elected for another term, “I’m going to be pushing for this.”

— Need help deciphering the DOL fiduciary rule? Register now for ThinkAdvisor’s May 11 webinar hosted by Melanie Waddell.