Sunday, September 25, 2011

DOL To Re-Propose Rule on Definition of Fiduciary

The U.S. Department of Labor's (DOL) Employee Benefits Security Administration (EBSA) will re-propose its rule on the definition of a fiduciary. According to EBSA, the re-proposal is designed to inform judgments, ensure an open exchange of views and protect consumers while avoiding unjustified costs and burdens. The decision to re-propose is in part a response to requests from the public, including members of Congress, that the agency allow an opportunity for more input on the rule. This extended input will supplement more than 260 written public comments already received by EBSA, as well as two days of open hearings and more than three dozen individual meetings with interested parties held by the agency. According to an EBSA press release, the DOL anticipates revising provisions of the rule including, but not restricted to, clarifying that fiduciary advice is limited to individualized advice directed to specific parties, responding to concerns about the application of the regulation to routine appraisals and clarifying the limits of the rule's application to arm's length commercial transactions, such as swap transactions. Also anticipated are exemptions addressing concerns about the impact of the new regulation on the current fee practices of brokers and advisers, and clarifying the continued applicability of exemptions that have long been in existence that allow brokers to receive commissions in connection with mutual funds, stocks and insurance products. DOL/EBSA is seeking to amend a 1975 regulation, which defines when a person providing investment advice becomes a fiduciary under the Employee Retirement Income Security Act (ERISA), in order to (according to DOL/EBSA) adapt the rule to the current retirement marketplace. The proposal's goal is (again, according to DOL/EBSA) to ensure that potential conflicts of interest among advisers are not allowed to compromise the quality of investment advice that millions of American workers receive.