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A Target Date for DOL Fiduciary Rule Redo?

Regulatory Agencies

The federal government’s updated Spring 2019 unified regulatory agenda sheds some light on prospects for the Department of Labor’s next steps on a fiduciary rule revamp. 

The DOL’s updated regulatory agenda confirms that the agency has set a target date of December 2019 to issue a Notice of Proposed Rulemaking. 

The agenda explains that the agency is considering its regulatory options in light of the 5th U.S. Circuit Court of Appeals’ ruling vacating in toto (U.S. Chamber of Commerce v. Department of Labor) the regulation revising the definition of fiduciary that had been finalized in April 2016. 

Other than the target release date, the agenda provides no additional details as to what the DOL may be considering. In general, a Notice of Proposed Rulemaking is one of the first steps in the agency rulemaking process, whereby the agency issues a proposed rule and provides an opportunity for the public to submit comments on the proposal that then form the basis of a final rule. 

Ever since the 5th Circuit vacated the DOL’s previous rule in March 2018, many have speculated as to what – or if – the DOL will do next and whether the agency would work with the SEC on coordinating the investment advice rulemaking process. 

Under questioning at a May 1 hearing on Capitol Hill, Secretary of Labor Alexander Acosta appeared to confirm that the DOL will issue a new fiduciary rule, but didn’t provide details. When pressed as to timing, Acosta simply stated that the “SEC is in the process of producing those rules” and that his agency is “working with an independent agency.”

Meanwhile, the SEC’s updated regulatory agenda continues to show that it still plans to issue a final rule on its Regulation Best Interest package in September 2019. 

These dates are, of course, merely target release dates for the regulatory packages, and, as is often the case in Washington, delays do happen. Nevertheless, this does provide a snapshot of the anticipated timeline and a hint of things to come.