Sources familiar with talks between lawmakers and industrystakeholders say consideration is being given to delaying the implementation dates for theDepartment of Labor’s fiduciary rule.

Speaking on background, sources said discussions have exploredthe possibility of delaying implementation of the rule for a year,and maybe longer.

The rule’s first implementation date is April 10, 2017, whenservice providers and advisors to IRAs and 401(k) plans with lessthan $50 million in assets will have to acknowledge their roles asfiduciaries, meaning they will be required to put investors’ bestinterests before their own.

The second implementation date, slated for January 1, 2018, iswhen providers will have to comply with the rule’s Best InterestContract Exemption, a series of disclosure requirements thatincludes a provision giving investors the right to sue by classaction if they receive conflicted advice not in there bestinterest.

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Kim O’Brien, CEO of Americans for Annuity Protection and theformer CEO of the National Association for Fixed Annuities, saidthe AAP has also heard that conversations around delaying the rulehave taken place on Capitol Hill.

“The stakes are too high not to get the rule right, which iswhat makes a delay in the rule a good approach,” said O’Brien in aninterview. The AAP has opposed the DOL throughout the rulemakingprocess.

“The fact that there is not uniformity as to how the rule treatsannuity products and qualified and non-qualified investmentscreates what we think will be a big cluster for consumers,” sheadded. “We are not against a standard that helps consumers receiveadvice that’s in their best interest, but whenever you haveconfusion in the marketplace you have polarization ofdecisions—that won’t help people save for retirement.”

For opponents of DOL’s fiduciary rule, delaying implementationmay provide a path of lesser resistance than stand-alonelegislative efforts that would prohibit the rule from beingimplemented.

Proposed legislation would have to survive a filibuster in theSenate, where influential Democrats such as Sen. Elizabeth Warrenand Sen. Bernie Sanders can be expected to fight to protect therule and what proponents say are its needed protections forretirement savers.

Congressional Republicans also have the option of thwarting therule through the appropriations process.

The incoming Trump administration has successfully lobbiedRepublican Congressional leaders to scrap its fiscal year 2017budget, which is due for a vote by December 9^th, andinstead pass a Continuing Resolution that would fund the governmentuntil next spring, according to several media reports.

That could conceivably make it easier to attach a rider to nextyear’s spending bill that would defund the rule, as Republicanswould control both chambers of Congress along with the White Housewhen a final budget is written.

But in pushing its budget-writing responsibilities into nextyear, Congress will be saddled with what is expected to be analready full plate, as President-elect Trump looks to execute keypolicy initiatives that include trade, immigration, banking, taxand health care reforms.

Despite majorities in the House and Senate, it is unclear if theTrump administration will have the political will and capital tospend on the fiduciary rule.

“The question of the administration’s priorities is critical tothe fate of the rule,” said O’Brien. “There will be a very nuancedgame of chess over what Congress will do with their options. ATrump administration could use the DOL rule as a bargaining chip toget issues through they think are more important.”

O’Brien said insurance carriers are continuing the effort tocomply with the rule by April 10, 2017. “There’s too much unknown.They can’t afford not to press forward with compliance.”

Options for a Trump Labor Department

A Trump Labor Department could decide to scrap the existing ruleby rewriting a new rule.

That process would be subject to Administrative Procedure Act,which could be lengthy. Moreover, there is some question amongadministrative law experts as to whether or not the existing rulewould remain in effect as regulators promulgate a new rule.

But the option to delay the rule’s implementation for a year, orperhaps more, would be a “relatively easy thing to do,” says CaryCoglianese, director of the University of Pennsylvania Law School’sProgram on Regulation.

“It would require a formal amendment to the rule, but if you arejust amending the compliance date, that is trivial from thestandpoint of the law and what an agency has to do to withstandjudicial scrutiny,” said Coglianese.

The extension would also buy the Trump administration time todetermine if it wants to re-open the rulemaking process to makedeeper changes. “The administration could extend the date separatefrom an announcement to rewrite the rule,” explainedCoglianese.

With so much on its plate, delaying implementation may prove tobe the most functional route for the Trump administration,presuming it takes a position against the rule as it iswritten.

If the Trump Labor Department issues an extension of thecompliance dates on an interim final basis, the new compliance datewould be effective as soon as it is published in the FederalRegister. The department would not need a comment period to do so,said Erin Sweeney, an ERISA attorney at Miller & Chevalier anda former regulator at the DOL.

As an example, Sweeney points to actions taken in 2011 by theObama administration’s Labor Department, when regulators at theEmployee Benefits Security Administration delayed implementation ofnew 401(k) fee disclosure requirements by nine months.

That delay was executed in part to give stakeholders more timeto comply with the new disclosure requirements, according to asummary of the action in the Federal Register.

Read all our DOL fiduciary rule coveragehere.