Employee Benefits Security Administration chief Phyllis Borzi criticized Congress Tuesday for foot-dragging on mandating auto enrollment for small business defined contribution plans.

She praised the states for taking the lead.

“The states have been looking at Congress’s inaction and they are getting impatient,” Borzi said at the annual convention of the American Society for Pension Professionals & Actuaries.

The EBSA chief said her unit will meet President Obama’s end-year deadline to propose rules that would eliminate the fear many states have of creating the plans since the programs could be invalidated by the courts. Generally, federal measures can overrule state rules for private retirement plans.

She noted there have been nearly three dozen U.S. Supreme Court decisions on this preemption of the federal government over the states in retirement, but the boundaries remain unclear.

“ERISA preemption has been a barrier to states,” Borzi said.

On the proposed fiduciary rule for retirement plan advisors, Borzi said there have been lots of constructive suggestions for changes in the best interest contract exemption and other areas in the hundreds of thousands of comments the Department of Labor has received.

The rule is expected to be adopted before Obama leaves office in January 2017.

When asked if she would be around to lead enrollment of the rule at DOL once it is finalized, Borzi said her term expires when his does.

ASPPA Executive Director Brian Graff predicted a Republican successor to Obama would propose “substantive changes” to the rule.