New legislation introduced in the U.S. House of Representatives would remove the regulation of IRAs from the Department of Labor’s jurisdiction.

It would also create a more flexible best interest standard for advisors to IRAs and small businesses than the one proposed in the DOL’s fiduciary rule.

The Retirement Choice Protection Act of 2015, co-sponsored by Rep. Mike Kelly, R-Pennsylvania, and Rep. Sam Johnson, R-Texas, would transfer oversight of IRAs, annuities, Simplified Employee Pensions (SEPs), and Simple IRA accounts to the Secretary of Treasury, according to language in the bill.

Were it to pass, it would effectively neuter the DOL’s capacity to finalize its proposed fiduciary rule, which the agency says is necessary to assure that retirees are not subjected to conflicted advice when they roll 401(k) retirement assets over to IRAs.

Recently, legislation that would require the Securities and Exchange Commission to be the lead regulatory body in drafting a new best interest standard passed the House.

It too would neuter the DOL’s ability to finalize its proposal.

The White House swiftly vowed to veto it.

Some estimates claim as much as $2 trillion in assets will roll out of workplace plans and into IRAs in the next five years.

The DOL proposal’s Best Interest Contract Exemption would insist extensive disclosure requirements on advisors and brokers that recommend compensation-based investments to IRA account holders.

Opponents of the DOL say the BICE provisions would effectively outlaw commission-based compensation.

The proposal would also prohibit RIAs from charging higher fees on rolled over assets than participants were charged in 401(k) plans.

The question of the DOL’s authority to regulate IRAs had been raised by other politicians and in other proposed legislation.

Last year, Sen. Orrin Hatch, R-Utah, introduced the SAFE Act, which in part attempted to set straight the question of the DOL’s authority to regulate IRAs by shifting all oversight authority to Treasury, similar to the new proposed legislation from Rep. Kelly and Rep. Johnson.

Hatch’s bill was first introduced in 2013 and never made it out of the Senate Finance Committee. He has made repeated statements as to his intention to reintroduce the legislation since, most recently this past May.

In 2008 testimony before Congress, Brad Campbell, then the assistant Secretary of Labor and head of the Employee Benefits Security Administration, said the DOL “generally does not have jurisdiction over IRAs except to the extent they are employer-sponsored.”

But Campbell, now in private practice as a partner in the law firm Drinker, Biddle and Reath, also gave a more nuanced assessment of the DOL’s authority over IRAs in the same 2008 testimony.

The Internal Revenue Service is largely responsible for IRA oversight, and can revoke tax-favored treatment if the owner engages in a prohibited transaction that involves “self-dealing,” said Campbell.

But the DOL does have authority with respect to defining just what a prohibited transaction is.

Campbell also testified that the DOL “has sole jurisdiction over the granting of prohibited transaction exemptions for all IRAs.”

It is that authority legislation like Sen. Hatch’s, and the latest from Rep. Kelly and Rep. Johnson, are attempting to revoke.

Language in The Retirement Choice Protection Act of 2015 says Treasury, in consultation with the Securities and Exchange Commission, will have the power to prescribe regulations, rulings, opinions and “exemptions” relative to a the standard of care brokers and advisors owe IRA and annuity owners.

The 40-page proposed legislation extensively defines an alternative best interest standard alternative to the one defined in the DOL’s proposal.

Any recommendation provided with the “care, skill, prudence and diligence” that a prudent person would exercise would meet that standard, according to language in the proposal.

The recommendation of proprietary investments would be allowed under the bill’s best interest standard.

While the law would require disclosure of compensation, commission-based and indirect compensation from a product provider would not constitute a prohibited transaction, as they do in the DOL’s proposal.

“By adding a workable best interest standard to this ill-conceived rule, we will ensure that American families can continue to receive affordable investment guidance for a secure retirement while making it easier for small businesses to provide retirement benefits to their employees,” said Rep. Kelly in a statement.

Instant Insights /

Legislation proposed to prevent DOL from regulating IRAs

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