On June 29, 2017, the Department of Labor announced in a news release (available here) that it has published a Request for Information (“RFI”) (available here) related to the DOL Fiduciary Duty Rule, to allow the public to provide input that may be used to revise the Rule and its exemptions.
There is a 15-day comment period on whether the DOL should extend the January 1, 2018 applicability date, and a 30-day comment period on other issues raised in the RFI, such as whether new and more streamlined exemptions are advisable. Both deadlines will begin to run once the RFI is published in the Federal Register.
The DOL specifically asks for input on (i) possible additional exemptions or changes to the Rule, as well as (ii) the advisability of extending the January 1, 2018 applicability date of certain provisions in the Best Interest Contract Exemption (the “BICE”), the Principal Transactions Exemption, and PTE 84-24.
In the RFI, the DOL reveals that it is “particularly interested in public input on whether it would be appropriate to adopt an additional more streamlined exemption or other rule changes for advisers committed to taking new approaches” to compliance, such as “clean shares,” T-shares, and fee-based annuities. RFI at page 6. The DOL notes that “[c]lean shares, T-shares, and fee-based annuities are all examples of market innovation that may mitigate or even eliminate some kinds of potential advisory conflicts otherwise associated with recommendations of affected financial products. These innovations might also increase transparency of advisory and other fees to retirement investors.” RFI at page 10.
And, importantly, regarding the BICE, the DOL explicitly says that it “is interested in the possibility of regulatory changes that could alter or eliminate [the BICE’s] contractual and warranty requirements.” RFI at page 8.
Notably, the Request does not seek input on whether the fiduciary standard should be maintained or whether the Rule itself should survive. However, the DOL notes that it is still in the process of reviewing and analyzing input received in response to its previous request for comments on issues raised in Trump’s Presidential Memorandum. Trump’s Memorandum had directed the DOL to evaluate the Rule as a whole to determine whether it should be revised or rescinded. So, the question of revision or rescission clearly remains on the table.
Meanwhile, on Tuesday, June 27, 2017, Labor Secretary Acosta and SEC Chair Clayton told separate Senate panels they would work together on investment advice regulation.
In live testimony before a Senate panel, Secretary Acosta was asked whether the DOL is talking with the SEC about the Fiduciary Duty Rule. Secretary Acosta told the panel that he had asked SEC Chair Clayton whether the SEC will work with the DOL on reviewing the Rule and that Clayton responded in the affirmative. And Clayton told a separate Senate panel that it is his intent as SEC Chair to move forward on financial regulation in a way that is coordinated. However, it was not clear from either Acosta’s or Clayton’s comments how extensive the cooperation will be or even whether the coordination will have to wait until the SEC receives a full staff of commissioners.