Speaking at FSI’s Financial Advisor Summit Tuesday, the Department of Labor’s Phyllis Borzi says the agency will not meet its original October deadline to produce a new rule on the definition of a fiduciary under ERISA.
“While we’ve been making progress on our fiduciary proposal, you will not see anything in October because we’re not finished,” Borzi says. “I’m sure no one here has experienced things taking longer than anticipated,” she joked, noting that the DOL would not be releasing the rule until it was absolutely sure it had “given it our best shot.”
When asked by reporters when advisors can expect the rule, Borzi said she was uncertain. The DOL needed to get it right and that takes time, she says. But when the DOL does finish the rule—a proposed regulation, rather than a final rule—when it’s ready for “prime time,” Borzi says, the DOL will send it over to the Office of Management and Budget.
The industry will get a head’s up when the OMB publishes the proposed rule on its website. There’s no “secret pipeline” from the DOL to the OMB, Borzi says, the public certainly will know as soon as the regulation is ready. The agency has 90 days to review the DOL’s rule and Borzi says she expects the OMB to take it due to the complexities of the rule.
But while the industry will not see the DOL’s proposal in October, it is coming. Borzi says she’s not stepping down and will not just let the SEC handle fiduciary duty. “We don’t have overlapping jurisdictions,” she explained saying there are two investment “buckets,” a retirement one and another for other securities. And while the SEC regulates securities across both, Borzi says retirement savings is “sacred money” and advisors should be held to a higher standard. She did note, however, that from the very beginning, the DOL has worked with other regulators including the SEC.
“The impact of this regulation is to attack problem, or address the problem of conflicted advice,” she says. As to what the new proposal will cover, Borzi says Individual Retirement Accounts, IRAs, will definitely be covered. “We’re going to cover them,” she says, adding that there’s an even grater need in IRA marketplace, there’s a need to protect investors.
And for naysayers complaining the IRA provisions will increase advisors’ expenses, Borzi acknowledged that it would cost more to service smaller accounts, but added that there are advisors acting as fiduciaries who do service smaller accounts and not going out of business. “It’s not actually impossible to do,” she added.
Borzi did note that the proposal would include several amendments to existing prohibitive transaction exemptions, including to exemptions regarding commissions, as well as at least one brand new exemption.
Yet there is nothing in this proposal that will outlaw commissions, she says. There are certain kinds of revenue streams that are currently part of what are euphemistically called commissions, some of that will be reviewed. “We will be addressing those kinds of things in the amendments or in the new one we’re thinking about,” Borzi says.
