Nine Democrats in the U.S. Senate are urging the Department of Labor and the Office of Management and Budget to finalize the DOL’s proposed fiduciary rule, which will significantly expand the definition of who is considered an investment advice fiduciary when it comes to advising clients on the rollover of retirement accounts.
The rule, which the department proposed in October, would expand the definition of fiduciary under ERISA so that it encompasses brokers and insurance agents. It would also cover those who offer onetime advice and annuities sales for the first time.
“The proposed rule ensures that every retirement saver who seeks the assistance of an investment professional will receive advice that puts their best interests first,” the senators wrote in a March 26 letter addressed to Julie Su, the acting secretary of labor, and Shalanda Young the director of the Office of Management and Budget. It was signed by senators John Fetterman of Pennsylvania, Brian Schatz of Hawaii, Cory Booker of New Jersey, Elizabeth Warren of Massachusetts, Sheldon Whitehouse of Rhode Island, Bernie Sanders of Vermont, Peter Welch of Vermont, Ed Markey of Massachusetts and Laphonza Butler of California.
The Department of Labor sent the final proposal to the Office of Management and Budget, an executive branch office, on March 8 for review. The OMB has 90 days to finish its review but may extend that deadline. When that review is completed, the Department of Labor can finalize and publish the new fiduciary rule.
The senators said the rule is needed to protect retirement savers who can be subjected to conflicted advice from the professionals they pay. The lawmakers also argued that the rule should make financial advice more available to investors at all income levels, rather than hinder advice.
As they work fast to complete the rule, the Department of Labor and Office of Management and Budget have received 525 comment letters and more than 20,000 petitions, according to Ali Khawar, the principal deputy assistant secretary of the Labor Department's Employee Benefits Security Administration. Khawar made the comments about the feedback on the rule at a benefits conference earlier in March.
In the new rule, the DOL proposes that a person should be considered an investment advice fiduciary under ERISA if they provide investment advice or make an investment recommendation to a retirement investor—including a plan participants or IRA holder—if the advice or recommendation is provided “for a fee or other compensation, direct or indirect,” Khawar said.
The proposal is more narrowly tailored than a 2016 predecessor, he added.
The Financial Services Institute and other plaintiffs successfully sued to vacate the 2016 rule on the grounds that the DOL does not have the authority to regulate salespeople such as brokers and agents.
Khawar said the new rule will better protect Americans in their retirement rollover decisions when working with professionals who may be conflicted by financial incentives.
Supports of the proposed rule include the AARP and the CFP Board. Those supporters, as well as critics, have scheduled meetings at the Office of Management and Budget to push for changes before the final rule is published, which is likely to happen in mid-April, according to Fred Reish, a partner with law firm Faegre Drinker. Reish, like a number of attorneys and trade group executives, believes the rule will be challenged in court.