The DOL does not go far enough in protecting individuals regarding advice relating to their IRA accounts, [and should] revisit the "regular basis" prong of the five-part test in order to subject all rollover advice to the PTE. We strongly encourage the DOL to provide more helpful disclosures to investors about their rights and remedies vis-à-vis the SEC and DOL regulations. — Morningstar

Returning to this [five-part] test would be a mistake because it is harmful to beneficiaries and sponsors of retirement accounts. The DOL's 2016 Fiduciary Rule adopting release aptly articulated why the five-part test is bad policy. While well intentioned when it was first implemented, the five-part test did not stand the test of time. As noted in the 2016 Fiduciary Rule adopting release, the 1975 test was created in a very different environment than exists today; i.e., "prior to the existence of participant-directed 401(k) plans, the widespread use of IRAs, and the now commonplace rollover of plan assets from ERISA-protected plans to IRAs." ... The DOL does not go far enough in protecting individuals regarding advice relating to their IRA accounts, [and should] revisit the "regular basis" prong of the five-part test in order to subject all rollover advice to the PTE. We strongly encourage the DOL to provide more helpful disclosures to investors about their rights and remedies vis-à-vis the SEC and DOL regulations. — North American Securities Administrators Association

DOL should consider, in a separate proceeding, revisiting elements of the "five-part test" for fiduciary investment advice — in particular, the "regular basis" prong of the test. …In particular, the ARA's long-standing position has been that the "regular basis" element of the test, requiring that advice be part of an ongoing relationship, is too narrow, for the reasons described in the Department's 2016 notice adopting the final regulation. That is, we share the concern that the regular basis element fails to draw appropriate distinctions between the sorts of advice relationships that should be treated as fiduciary in nature and those that should not. — American Retirement Association

Much of the preamble's description of the five-part test appears to be taken from the Department's 2016 regulatory initiative that the Fifth Circuit Court of Appeals clearly set aside. Many of the comments ... appear to have little or no support in any Department regulatory or sub-regulatory guidance, nor in any case law. The preamble language could be read as a strong inference that someone recommending a rollover is likely to be a fiduciary when advisors may provide education to the client regarding their options, including not "cashing out" and depleting retirement savings, or a rollover occurs during a "hire me" discussion and the advisor does not provide a recommendation regarding whether to rollover or stay in the plan. — Securities Industry and Financial Markets Association