The Department of Labor (DOL) intends to delay, and so has issued a proposed rule to amend, the first applicability date of its fiduciary rule and corresponding prohibited transaction exemptions, including the Best Interest Contract Exemption, from April 10, 2017, to June 9, 2017. The proposed 60-day delay is subject to the DOL’s completing its rulemaking process. Practically speaking, the DOL’s adoption of this 60-day delay seems virtually certain and should be completed before the all-important April 10, 2017, implementation date.
The DOL’s rulemaking process includes two comment periods: (1) a 15-day comment period on the proposed 60-day delay of the applicability date; and (2) a concurrent 45-day comment period addressing the economic and legal analysis mandated by President Trump’s February 3, 2017, Memorandum directing the DOL to consider whether the fiduciary rule is likely to: (a) reduce retirement investors’ access to retirement savings offerings, product structures, information or related financial advice; (b) adversely affect investors and retirees by disrupting the retirement services industry; or (c) cause an increase in litigation and prices paid by investors and retirees.
If the DOL makes an affirmative determination with respect to any of these considerations or concludes that the fiduciary rule is inconsistent with the Trump Administration’s priorities to “empower Americans to make their own financial decisions, to facilitate their ability to save for retirement and build the individual wealth necessary to afford typical lifetime expenses, such as buying a home and paying for college and to withstand unexpected financial emergencies,” the DOL is further directed to either rescind or revise its rule and/or related exemptions.
The 15-day comment period on the applicability date delay runs until Friday, March 17, 2017. The 45-day comment period on the economic and legal analysis ends on Sunday, April 16, 2017. Public comments may be submitted by email to EBSA.FiduciaryRuleExamination@dol.gov with “RIN 1210-AB79” referenced in the subject line of the message.
The 60-day delay will: provide short-term relief for financial institutions and their advisers from the first applicability date; allow 45 days for further public comment about the impacts of the rule; and give the DOL time to complete its reexamination of the rule, further extend the rule’s implementation dates as necessary, and either rescind or revise the fiduciary rule and/or its prohibited transaction exemptions. Material revisions to the rule would typically require further DOL rulemaking, including a new period for further public comments on the proposed amendments. In the meantime, the DOL’s historical interpretations of affected ERISA and related Internal Revenue Code provisions are expected to continue in effect.
When the proposed date extension has been formally adopted later this month, we will send another alert. Further developments are anticipated to follow in late April or May. In the meantime, if you have any questions, please contact Lisa Zimmer at lzimmer@wnj.com or 248.784.5191 or Shane Hansen at shansen@wnj.com or 616.752.2145.
