Labor Secretary Confirmation Could Bring Fiduciary Clarity

The U.S. Senate has quietly approved President Trump’s Secretary of Labor nominee, Alexander Acosta, following a previously failed effort by the administration to install fast food executive Andrew Puzder to the position.

Acosta’s appointment was more or less a non-event from the perspective of the wider media and the general political conversation, which seems more focused on tax reform proposals and geopolitical tensions, particularly those involving China, North Korea and Iran. However for the retirement planning marketplace, the appointment represents a significant development.

Acosta, working with whomever is named to fill the role of head of the Employee Benefits Security Administration (EBSA), will oversee the implementation of the Department of Labor (DOL) fiduciary rule reforms championed by the Obama White House. Numerous attorneys, executives and analysts have told PLANSPONSOR they have been very eager to get to this point; without a Labor Secretary in place there has been a lack of clarity from within the DOL as to what the future of the rulemaking might be.

The DOL has signaled it could do another implementation delay prior to June 9, but the more likely course is that the fiduciary rule will in fact be implemented on that date, under Acosta’s watch. Important to note is that, while the fiduciary rule itself has not been changed, the DOL under interim leadership issued several new transition exemptions—most notably a new “best-interest contract transition exemption” and a new “transition 84-24 exemption.” Together, the new transition exemptions will do a lot in terms of easing some of the compliance burden associated with meeting the fiduciary rule requirements—but this is not viewed as a long-term solution by the industry, given these new exemptions only apply during the transition phase during which the rule is to be implemented in stages over several years. 

It remains to be seen exactly what impact Acosta’s appointment will have on the fiduciary rule effort—whether and to what extent he will work to implement Trump campaign promises that bashed the role of regulation in the financial services industry.

NEXT: Positive reactions to Acosta’s appointment, but request to delay the DOL rule 

One of the first groups to offer comment on Acosta’s confirmation was the American Council of Life Insurers (ACLI), which suggests “Secretary Acosta is a skilled professional with a wealth of experience that will serve him well in his new position.”

“Among the key issues he will face is the Labor Department’s fiduciary regulation,” ACLI agrees. “We were encouraged by Secretary Acosta’s Senate testimony in his confirmation hearing in which he supported the February 3 presidential memorandum calling for a review of the regulation.”

ACLI is clear about its own position, calling the fiduciary rule “a regulation that limits consumer choice and significantly harm consumers’ ability to plan and save for a secure retirement.”  

“We believe an objective analysis of the regulation will conclude the need to rescind or revise the regulation,” ACLI says. “We urge Secretary Acosta to delay the fiduciary regulation until the department has completed its examination. The department’s plan to implement key aspects of the fiduciary regulation on June 9 is illogical, since it is not clear the examination will be finished by then.”

Offering a similar take was Kenneth Bentsen, Jr., SIFMA president and CEO.

“We strongly urge Secretary Acosta to take immediate action to further delay implementation of the fiduciary duty rule by a minimum of 180 days beyond the current June 9, 2017 applicability date,” Bentsen says. “As required by President Trump’s February 3, 2017, Presidential Memorandum, the DOL needs to prepare an updated economic and legal analysis concerning the likely impact of the fiduciary duty rule.  This review will take time and Secretary Acosta should immediately delay the June 9th implementation date while the required review is ongoing.”

One of the few statements that seems to suggest at least a partial willingness to support a new fiduciary standard comes from the Insured Retirement Institute (IRI) President and CEO Cathy Weatherford. Like the others she offers “congratulations to Secretary Alexander Acosta on his confirmation by the Senate.” But Weatherford pledges to work with Acosta “to put in place a consistent and workable best interest standard which will allow Americans to achieve a financially secure retirement.” Even in this semi-moderate position, IRI has changes it would like to see made to the rule.

NEXT: Additional industry commentary 

Financial Services Institute (FSI) President and CEO Dale Brown says his organization is “pleased” the Senate has confirmed Acosta as Secretary of the Department of Labor.

“We urge Secretary Acosta to make addressing the fiduciary rule a top priority,” he says. “With the June 9 deadline looming, there is no time to waste in protecting retirement savers’ access to quality, affordable advice and services. We look forward to meeting with Secretary Acosta to address the concerns of our members and the retirement savers they serve.”

The Financial Services Roundtable (FSR), too, applauds the U.S. Senate for confirming Acosta.

“FSR today calls on Secretary Acosta to defer the Fiduciary Rule’s June 9 applicability date until a thorough review has been completed,” the group writes. “Such a deferral would allow the Department and the Secretary an opportunity to more properly and fully examine the rules consequences in accordance with the Presidential Memorandum.”  

The group’s statement continues to note FSR “strongly supports a best interest standard, and we believe all persons who provide personalized investment advice to retail customers, not just persons providing advice relating to retirement accounts, should be subject to such a standard. However, FSR also believes the Securities and Exchange Commission (for securities) and state insurance authorities (for insurance products) should help lead efforts to develop and implement such a standard to ensure it is applicable to different types of investment accounts, not unduly burdensome, and does not reduce access by modest income savers to needed, valuable and fair investment advice.”