The Obama administration is leaving little to chance with the Department of Labor’s proposed fiduciary rule.
According to reporting in Politico, sources inside the administration say the DOL could be sending its finalized rule to the Office of Management and Budget as early as this week.
If not by then, the OMB should have the DOL’s revisions to its proposal by the end of the month.
Barbara Roper, director of investment protection at the Consumer Federation of America and a leading advocate for DOL’s rule, recently told BenefitsPro that the OMB’s review of the rule could take as few as 50 days, but that a 95-day review period is typical for a rule of the magnitude of the proposed fiduciary rule.
After the OMB’s review, the Congressional Review Act requires a 60-day period of review by lawmakers on Capitol Hill.
The proposal is the culmination of a more than five-year effort by the Obama Labor Department to address what it says are inherent conflicts of interest in the distribution of retirement products and advice to the IRA and defined contribution markets.
As proposed, the rule’s amended prohibited transaction restrictions and Best Interest Contract exemption would effectively outlaw commission-based sales of products and advice, argue opponents of the rule.
It may also restrict how service providers can educate 401(k) plan participants, effectively raising them to the level of a fiduciary. As is, service providers are not automatically considered to fiduciaries.
Many ERISA experts and industry analysts have said the proposed rule will move product and advice providers to a fee-based compensation model, similar to the one now applied by most RIA fiduciaries.
That could create unintended consequences, argue opponents of the rule.
Under a fee-based model, some investors will end up being charged more for advice than they would under a commission-based structure, while other smaller account holders will be dropped by advisors and providers, as their accounts will become too costly to administer under the proposal’s vast new disclosure requirements, say the DOL’s opponents.
Proponents of the rule, including regulators at the upper reaches within the Employee Benefits Security Administration, the arm of Labor that is crafting the new regs, argue the proposal does not ban commission based sales, but simply insists a higher bar for price disclosure that will assure retirement savers won’t lose out to conflicted advice.
The timing of when the OMB receives the rule has significant consequence. In initiating the OMB review as soon as possible, it is believed the Obama Administration can assure a rule will be posted before the end of the president’s final term.
Yet others have suggested moving too quickly could provide the grist for legal challenges to the rule.
Irrespective, stakeholders need to be changing course now, says Rob Foregger, co-founder of NextCapital, which provides the software behind white labeled managed accounts for 401(k) plans sponsors and participants.
“Industry needs to shift from debate to action,” said Foregger in an interview.
“The question is no longer whether or not the proposed fiduciary standard will happen, the question now is—should my firm implement scalable personal advice,” he says.
NextCapital and other fintech firms are positioning to benefit from a new rule.
Foregger notes that the architects of the proposal, including Labor Secretary Thomas Perez, have explicitly said technology is being counted on to help actualize the proposal’s core intention—to drive the cost of retirement investing down.
“Incumbent institutions serving the retirement market are well positioned to lead in this market transformation, but many need to reconfigure their business and delivery models now,” said Foregger.
“This is the most profound change in financial regulation since the repeal of Glass Steagall,” he added, referencing the 1999 legislation that allowed financial institutions to comingle commercial and investment banking interests.
Rebalance IRA, a Palo Alto-based firm that pairs technology and traditional human advice to deliver low-cost advisory oversight to IRA accounts, is also positioning to benefit from a new rule, says co-cofounder Scott Puritz.
“If the rule adopted is similar to last year’s draft, it’s going to have a profoundly positive and transformative impact on the personal finance industry,” said Puritz, who has testified before Congress in support of the DOL.
“Mandatory disclosure provisions will arm consumers with more information about retirement investment costs so they can make informed decisions,” he added in a statement to BenefitsPro.
Heightened disclosure requirements and the establishment of an industry-wide fiduciary standard will have a “healthy” affect on that component of the industry that has relied on commissions and a “sales-driven approach” to retirement investing, said Puritz.