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DOL Looking for Reason to Delay Full Fiduciary Compliance Date: Lawyer

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Full compliance with the DOL fiduciary rule, which begins to take effect June 9 following a two-month delay, isn’t required until Jan. 1, 2018, but that date could be postponed as well.

According its latest Q&A on the fiduciary rule, the Labor Department is currently analyzing issues raised in a presidential memorandum, which led to the two-month delay, and intends to issue a Request for Information (RFI) “in the near future” that will, among other things, ask for public comment on whether “an additional delay” beyond Jan. 1 is needed.

(Related on ThinkAdvisor: DOL Fiduciary Deadline Is Coming. Here’s a Compliance Checklist)

The RFI will ask whether another delay ”would allow for more effective retirement assistance” and help firms avoid “needless expenses as they build … compliance structures that may ultimately be unnecessary” because of the DOL’s final decision on the issues raised by the presidential memo.

That memo asks the Labor Department to study whether the fiduciary rule reduces access to certain retirement offerings, disrupts the retirement advice industry in a way that may adversely affect investors or retirees or is likely to increase litigation and the prices investors pay to access retirement services.

A delay beyond Jan. 1 would also give mutual fund providers more time to develop products such as so-called clean shares – which have no distribution fees – that could help advisory firms comply with the fiduciary rule, according to the department.

The administration is “trying to two-track it,” says attorney Erin Sweeney, of the Miller & Chevalier law firm. It’s conducting an economic analysis of the rule, looking at the impact on investors and retirees, which was already done under the Obama administration, and at an RFI that would give asset managers more time to develop certain products, like clean shares.

“They need a hook for another delay,” says Sweeney, adding that if the new labor secretary, R. Alexander Acosta, could have delayed the rule beyond June 9 he would have. Instead Acosta wrote in a Wall Street Journal op-ed  that after carefully considering the requirements of the Administrative Procedure Act, the department “found no principled legal basis to change the June 9 date while we seek public input.”

Sweeney says the Labor Department could be hamstrung on the economic analysis because it doesn’t yet have an assistant secretary for its Employee Benefit Security division, the job held by Phyllis Borzi in the Obama administration, to shepherd it through. But if the RFI comes back showing that financial firms need more time to develop clean shares and low-cost T shares, “that could give the department the cover they need.”

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