The Labor Department’s recently issued request for information will support the agency’s ongoing economic and legal analysis of the fiduciary rule, which was ordered by President Trump.
In short, the Trump administration’s Labor Department wants additional input from stakeholders regarding “possible additional exemption approaches” and overall changes to the rule.
Regulators also want input as to whether the January 1, 2018 scheduled applicability date for the rule’s major prohibited transaction exemptions should be further delayed.
Within the context of those two overarching questions, the RFI casts a wide net of inquiry.
Stakeholders will have a limited opportunity to submit comments. Regarding the advisability of delaying the January 1, 2018 applicability date, comments will be accepted up to 15 days after the RFI is published in the Federal Register.
And regarding possible revisions to the rule, or the creation of new exemptions, comments will be accepted up to 30 days after publication of the RFI in the Federal Register.
As of Monday, July 3, the RFI had yet to be published in the Federal Register. An inquiry to the Employee Benefits Security Administration’s Office of Exemption Determinations as to when publication in the Federal Register can be expected was not returned before press time.
While not a complete list of the questions regulators have put to stakeholders, the following represent core areas of concern as Labor assesses which provisions of the rule may or may not need amending, and give insight into the scope of revisions Labor is open to considering.
Here are 10 areas of inquiry laid out in the RFI:
1. Clean Shares, and other product innovations
Product innovations that have emerged since the fiduciary rule became effective in 2016 have opened up the possibility that “new and more streamlined exemptions” could balance industry’s compliance burden with the need to protect retirement investors from conflicted advice, the RFI says.
Many investment managers are considering issuing “clean shares” of mutual funds, a new share class that comes without front-load or deferred sales charges, or asset-based fees for distribution and marketing costs.
New fee-based annuities are also in the pipeline, as are new tech and data capabilities that will help firms monitor advisors. According to the RFI, stakeholders in previous comments have suggested the full innovation of such products will require more time than the January 1, 2018 implementation date allows.
If those products designed to mitigate advisor conflicts do emerge, Labor wants to know if a new, streamlined exemption in the rule is needed to accommodate their adoption.
2. Potential delay of January 1, 2018 implementation date
Labor wants input on the question of delaying the full implementation date of the rule. Would that facilitate new product innovation? Would it create risk for retirement investors?
In assessing the potential merits and risk to further delaying the rule, regulators want to know what industry has done so far to prepare for full compliance.
They also want industry and stakeholders to readdress core questions of the rule’s Best Interest Contract Exemption and other exemptions:
“Do the Rule and PTEs appropriately balance the interests of consumers in receiving broad-based investment advice while protecting them from conflicts of interest? Do they effectively allow Advisers to provide a wide range of products that can meet each investor’s particular needs?”
Put more simply, Labor wants to know if there are “better alternative approaches” to the rule’s existing exemptions.
3. About the BIC’s private right of action
The contractual requirements in the BIC and other exemptions in the rule, and the private right of action which prohibits financial institutions from writing class-action exclusions in contracts, expose firms to potential new litigation, and create “added motivation” to adhere to fiduciary standards, according to the RFI.
Labor makes no bones about its intention to address the potential negative consequence of the rule’s contractual and enforcement implications on the retirement market.
“The Department is interested in the possibility of regulatory changes that could alter or eliminate contractual and warranty requirements,” the RFI says.
Regulators want to know what could be changed in the existing contractual requirements, and what impact removing or revising them would have on advisors’ incentives to comply with a fiduciary standard.
4. New, streamlined exemption?
Clean shares, fee-based annuities, and the emergence of T-shares, which have a front-load commission of 2.5 percent, substantially lower than A class shares of mutual funds, could serve to eliminate the conflicts of interest the rule set out to address in the first place, the RFI suggests.
Regulators want to know what hurdles exist to the development of those products. How long will it take to develop clean shares? Will fees on annuities be paid from investor assets or insurance companies? Will investment managers opt for T-shares over clean shares?
Could regulators create a new streamlined exemption for new products based on a model set of policies and procedures suggested by industry?
And what about the Securities and Exchange Commission? Were it to update its standard of conduct requirements on IRA accounts, could it comport with a new streamlined exemption for clean shares and other product innovations?
5. Disclosure requirements
Critics of the BIC Exemption claim the contract’s disclosure requirements are onerous and costly.
Labor wants to know if there is a more efficient way to communicate advisors’ fiduciary obligations to investors.
One example given in the RFI would allow for a two-stage disclosure process, whereby contracts would include upfront disclosure on advisors’ fiduciary roles, compensation, and potential conflicts, while giving investors the chance to get more detailed disclosures upon request.
6. Recommendations to increase contributions to 401(k)s and IRAs
Under the fiduciary rule, a service provider or advisor’s advice to increase contributions to qualified savings plans could rise to the level of a fiduciary recommendation and trigger a prohibited transaction.
Labor wants to know if recommendations on contribution levels should be “expressly excluded from the definition of fiduciary advice.”
7. Community banks and HSAs
According to the RFI, Labor wants to know if the rule as written is too restrictive on community bank employees if they discuss IRAs with clients or offer bank deposit savings instruments, like CDs, to qualified accounts.
Regulators also want input on whether Health Savings Accounts built on banks’ savings deposit products are worthy of its own streamlined exemption.
8. PTE 84-24
Independent marketing organizations that have been the primary distribution channel for fixed indexed annuities are expected to be vastly disrupted under the fiduciary rule.
Labor wants to know if that needs to be addressed. One option would be to create a new exemption designating IMOs as “financial institutions,” which would qualify them for the BIC Exemption. Another option would be to expand PTE 84-24 to include all annuities—effectively returning to how FIAs and variable annuities were classified prior to the fiduciary rule.
Labor wants to know how either revision would benefit the market, and if it would create competitive imbalances with recommendations on mutual funds.
9. $50 million exclusion
The fiduciary rule’s $50 million exclusion places fewer requirements on advising defined contribution plans with at least that much in assets, as well as on other financial intermediaries and investors with as much in investable assets.
Labor wants to know if that threshold needs to be expanded.
The BIC Exemption’s grandfathering provision allows advisors to continue to receive compensation on investment recommendations predating the rule.
Labor wants to know to what extent industry is relying on the provision, and whether or not it has impacted the availability of advice to investors.