Financial Advisory (July 9, 2020) - The National Association of Personal Financial Advisors (NAPFA) and a consortium of 20 other pro-consumer groups delivered a letter to the U.S. Department of Labor yesterday asking for more time to deliver comments on the DOL’s controversial proposal to replace the vacated fiduciary rule.
NAPFA was joined by the Consumer Federation of America, the Public Investors Advocate Bar Association, Public Citizen and the Committee for the Fiduciary Standard on the letter, which urges the DOL to extend the 30-day comment period on the proposal to 90 days.
The proposal sets out rules advisors and brokers must follow in order to charge for advice on retirement assets.
A 30-day comment period “is an unreasonably short amount of time to provide thoughtful and comprehensive comments on this complex and highly technical proposal, which would affect our constituencies—including virtually all Americans struggling to save for retirement—in varied and far-reaching ways,” the groups argued.
“The department has been considering how to properly regulate retirement investment advice markets for well over a decade. It has struggled to find an approach that balances retirement savers’ need for advice with adequate protections to ensure that advice is not tainted by conflicts. Given this history that has been so fraught with problems, it would be imprudent for the department to hastily rush through with a rulemaking that didn’t allow meaningful comment and neglected critical considerations,” the groups said.
“To do so would suggest that the department is not interested in considering these important aspects of the problem it is seeking to address, is not keeping an open mind, and has predetermined the outcome of this rulemaking,” they argued.
Comments are due by August 6 on the proposal, called “Improving Investment Advice for Workers & Retirees.”
The department’s proposal will allow financial advisors to receive many payments that would have been restricted or forbidden by the previous DOL rule, including commissions, 12b-1 fees, trailing commissions, sales loads, markups and markdowns, and revenue-sharing payments from investment providers or third parties, even within qualified plans and IRAs.
The proposal seeks to align DOL regulation with the Securities and Exchange Commission’s Regulation Best Interest, which went into effect June 30. Like Reg BI, the DOL’s rule requires disclosures of conflicts of interest, but does not require advisors to avoid them altogether. A 30-day comment period “would be an unreasonably short comment period for such a significant rulemaking under any circumstances, but that is particularly the case given the unprecedented times in which we are living,” the groups continued.
“While we are all doing our best to navigate the many challenges that stem from the Covid-19 pandemic and the accompanying economic turmoil that our nation is facing, many of our organizations have extremely limited staff and resources and are not able to operate at full capacity. These obstacles hinder our and others’ ability to comment meaningfully on the proposal,” the groups maintained.
“Thirty days is a ridiculously short comment period for a rule that affects millions of retirement savers,” CFA Director of Investor Protection Barbara Roper said on Twitter. “It’s almost as if the DOL doesn’t want to hear from anyone except their industry supporters.”
The proposal also creates an exemption for ERISA fiduciaries allowing them to conduct what were, for a time, defined as “prohibited transactions” involving third-party compensation as long as certain “impartial conduct standards” are met.
Additionally, critics argue that by reaffirming the five-part fiduciary test that the Obama administration attempted to replace, the test can allow advisors who make rollover recommendations to escape a fiduciary standard.
The pro-consumer groups argue that the Administrative Procedure Act requires that the Department of Labor “provide the public with adequate notice of a proposed rule followed by a meaningful opportunity to comment on the proposed rule’s content,” which should include time to do surveys and research.
“Even organizations that manage to submit comments under these unduly rushed circumstances will be denied the opportunity to do so fully, including the opportunity to conduct research and submit written data to properly inform this rulemaking,” the groups argued.