On March 1, 2017, the U.S. Department of Labor announced a proposed 60-day extension of the final stature commonly known as the “Fiduciary Duty Rule,” which if approved would delay the effective date from April 10, 2017 to June 9, 2017.

The announcement was followed a day later with a formal proposed extension published in the Federal Register. It is important to note that this action represents a proposed extension of the applicability date, not an actual extension. The proposal still needs to go through a regulatory process. And there are a number of possible outcomes.

As part of the proposal, the DOL said it will accept public comments on the proposed delay for 15 days following publication of the proposal in the Federal Register. The final day for comments is today, March 17.

In addition, the DOL solicited comments during the next 45 days on the issues raised in President Trump’s memorandum (discussed below), with comments to be submitted on or before April 17, 2017.

Background
As many readers will remember, approval of the Fiduciary Duty Rule capped a five-plus year effort by the DOL. During that period the DOL proposed a new rule, considered comments that were mostly negative, withdrew the proposal, issued a new proposal, and then issued a final rule in April 2016.

In part, the new rule provided a broader definition of who constitutes a “fiduciary” for purposes of conflict of interest rules under the Employee Retirement Income Security Act, with an eye toward reducing, or at least requiring the disclosure of, potential conflicts of interest associated with the delivery of investment advice to retirement plan participants.

The proposed 60-day extension is in response to a memorandum that President Trump signed on February 3, 2017, directing the DOL to review the Fiduciary Duty Rule. Trump’s memorandum did not expressly request the DOL to delay the Fiduciary Duty Rule’s effective date, but rather directed the DOL to evaluate whether the rule is likely to harm investors by reducing access to their retirement savings, or otherwise result in disruptions, increased fees, or litigation that would adversely affect investors.

In proposing the extension, the DOL said it needed time to collect and consider information related to the issues raised in the President’s memorandum before the Fiduciary Duty Rule, and associated exemptions, become effective.

The Trump Administration has been clear in expressing its view that the new Fiduciary Duty Rule is too burdensome on retirement plan advisers, which ultimately will negatively affect plan participants, especially participants with smaller account balances, including accounts in IRAs.

Proponents of the new Fiduciary Duty Rule advocated that those plan participants were the exact individuals the Fiduciary Duty Rule was designed to protect. In anticipation of the Fiduciary Duty Rule’s effective date, many advisers in the retirement plan community have already expended significant efforts to revise their operations to comply.

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Consequently, some companies have indicated that they will likely comply with the new Fiduciary Duty Rule, even if it were to be repealed. In addition, many employers will now expect their plan investment advisers to meet the standard of care expressed in the Fiduciary Duty Rule, whether or not it takes effect.

Effect of action
The DOL’s proposed 60-day delay would extend the applicability date of the Fiduciary Duty Rule from April 10, 2017 to June 9, 2017. It is important to note that this action represents a proposed extension of the applicability date, not an actual extension.

The proposal still needs to go through a regulatory process. As part of the proposal, the DOL said it will accept public comments on the proposed delay for 15 days following publication of the proposal in the Federal Register. In addition, the DOL solicited comments on the issues raised in the President’s memorandum, which comments will be accepted on or before April 17, 2017.

So, what will happen next? One of four outcomes seems likely:

  • The DOL will permit the Fiduciary Duty Rule, and associated exemptions, to become applicable on June 9, 2017, or perhaps a later date;
  • The DOL will begin the regulatory process to revoke the Fiduciary Duty Rule;
  • The DOL will begin the process to modify the Fiduciary Duty Rule; or
  • The DOL will decide it has not had enough time to fully consider the matter, and will seek a further extension, and continue work on one of the three outcomes described above.

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Amy Hwang

Amy Hwang

Hwang counsels clients on executive compensation, employee benefits, and ERISA issues. Amy advises employers on the design and administration of tax-qualified retirement plans, health and welfare plans, and executive compensation programs. She also advises public and private companies on business transactions, including mergers and acquisitions, and corporate governance matters.