Providing generic information as to the availability and typesof investment products should be excluded from the definition offiduciary, according to Edmund Murphy, president of EmpowerRetirement.

Murphy was one of many to voice concerns over the educationcarve out to the Department of Laborat this week’s open public meeting over its proposed fiduciary rule.

But his role, and Empower’s in the workplace retirement planmarket are unique in estimating how the DOL’s education carve outand other provisions might affect participant access to savingsplans.

Read more news on the proposed Dept. of Labor fiduciaryrule

Thousands of investment options are available from Empower’splatform. Of the $450 billion in assets the company manages, only10 percent come from proprietary funds, explained Murphy.

“We take four million phone calls a year and give informationspecifically directed to the person on the phone,” said Murphy.

And participants may also get targeted information if assets areover concentrated, or a participant’s savings rate is lower thanpar.

It’s that specific type of information the DOL needs to addressas it refines the rule, said Murphy.

“We all want to end up in the same place,” said Murphy. How weget there matters.”

But Timothy Hauser, deputy assistant forprogram operations at DOL and head of the regulators’ panel thisweek, wondered if in all of those phone calls there was not someoccasion for Empower’s representatives to cross the line fromgiving support to clients to advising them on how to invest theirassets.

“I would think in the context of four million calls you willhave someone cross the line,” said Hauser.

Murphy said he supposed that was possible, but emphasized “thereis no incentive to recommend something that is not in the bestinterest of clients.”

“We are not in the business of giving investment advice,”underscored Murphy.

The DOL’s education carve out attempts to prohibit providersfrom steering participants into certain investments througheducation materials.

A consensus from the provider portion of the industry says itgoes too far.

Murphy said offering common planning tools such as assetallocation models would trigger fiduciary status. He echoed othertestimony throughout the week that suggested the DOL should allowsponsors to use modeling tools that include investment optionsalready in the plan menu.

Murphy also aired Empower’s concerns over the seller’s carveout, which says that advisors to plans with fewer than 100participants will be required to act as fiduciaries, while advisorsand providers to larger plans will not.

That carve out needs to be extended to all plans, regardless ofsize, argued Murphy.

All plan sponsors are fiduciaries under ERISA, he reasoned. TheDOL’s rule should take that into consideration in extending theseller’s carve out, which, as proposed, gives advisors to largerplans a break on the grounds that bigger sponsors have existinginternal fiduciary protections.

He cited the 50 million Americans employed by small businessesthat don’t have access to plans.

“We sell 3,000 plans in that space a year,” he said.Compensation tends to be commission based, because smaller sponsorsdon’t want to have to pay advisors out of company coffers.

“We’re often asked to play a support role with advisors tonarrow selections. As it relates to small plans, we want to makesure we can support that process. We don’t have any skin in thegame other than trying to help get the right lineup in place,” saidMurphy.

Any rule the DOL finalizes must help keep advisors engaged inthe small-business space if the existing retirement plan access gapis to be narrowed, argued Murphy.

The seller’s carve out was also the subject of wide-rangingcriticisms this week, as DOL panelists focused much of the week’squestions to witnesses on the matter.

Bradford Campbell, the one-time head of the DOL’s EmployeeBenefits Security Administration who is now an ERISA attorney inprivate practice, testified on behalf of the U.S. Chamber ofCommerce earlier in the week.

“Our members, especially small businesses, have been very clear:the rule wouldn’t help us, it would hurt us,” said Campbell.

“Unfortunately, the proposal’s regulatory burden and choicelimitations fall hardest on those very small businesses thatalready have the most difficult time offering retirement plans,” headded.

As it is proposed, the seller’s carve out would make itinfeasible for most advisors to serve the smallsponsor marketplace, said Campbell, who cited theDOL’s own data showing the lack of access to advice and resultinginvestment mistakes cost retirement savers $114 billion in2010.

Murphy’s testimony from Empower’s perspective backed Campbell’ssuggestion that advisors will flee the small sponsor market if theseller’s carve out is not extended to all plans.

“These plans are sold, they are not bought,” said Murphy,suggesting advisors are critical in delivering plan access to smallbusinesses.

Extending the seller’s carve out to all plans would be asignificant concession by the DOL, as it would effectively sayadvisors will not have to be fiduciaries to any 401(k) or workplaceretirement savings plans.

As one DOL representative wondered aloud when considering anextension of seller’s carve out in a question and answer session,“Wouldn’t that just get us back to where we started?”

Read more: DOL Fiduciary Rule