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

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

The rule’s first implementation date is April 10, 2017, when service providers and advisors to IRAs and 401(k) plans with less than $50 million in assets will have to acknowledge their roles as fiduciaries, meaning they will be required to put investors’ best interests before their own.

The second implementation date, slated for January 1, 2018, is when providers will have to comply with the rule’s Best Interest Contract Exemption, a series of disclosure requirements that includes a provision giving investors the right to sue by class action if they receive conflicted advice not in there best interest.

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

“The stakes are too high not to get the rule right, which is what makes a delay in the rule a good approach,” said O’Brien in an interview. The AAP has opposed the DOL throughout the rulemaking process.

“The fact that there is not uniformity as to how the rule treats annuity products and qualified and non-qualified investments creates what we think will be a big cluster for consumers,” she added. “We are not against a standard that helps consumers receive advice that’s in their best interest, but whenever you have confusion in the marketplace you have polarization of decisions—that won’t help people save for retirement.”

For opponents of DOL’s fiduciary rule, delaying implementation may provide a path of lesser resistance than stand-alone legislative efforts that would prohibit the rule from being implemented.

Proposed legislation would have to survive a filibuster in the Senate, where influential Democrats such as Sen. Elizabeth Warren and Sen. Bernie Sanders can be expected to fight to protect the rule and what proponents say are its needed protections for retirement savers.

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

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

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

But in pushing its budget-writing responsibilities into next year, Congress will be saddled with what is expected to be an already full plate, as President-elect Trump looks to execute key policy initiatives that include trade, immigration, banking, tax and health care reforms.

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

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

O’Brien said insurance carriers are continuing the effort to comply 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 rule by rewriting a new rule.

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

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

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

The extension would also buy the Trump administration time to determine if it wants to re-open the rulemaking process to make deeper changes. “The administration could extend the date separate from an announcement to rewrite the rule,” explained Coglianese.

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

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

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

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

Read all our DOL fiduciary rule coverage here.

Instant Insights /

Will DOL fiduciary rule compliance dates be delayed?

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