The DOL’s Fiduciary Race Ahead of 2021

There is precious little time remaining for the proposal and adoption of any new advisory industry conflict of interest rules that the DOL hopes to make effective during this presidential administration.

While it may be hard to believe, from a regulator’s perspective, 2021 is right around the corner.

Applied to the retirement universe, with 2021 only a little over 16 months away, the Department of Labor is facing tight deadlines if it wants to finalize a new “fiduciary” rule or investment advice prohibited transaction exemptions before a new administration could possibly take office. While the DOL’s spring 2019 regulatory agenda indicates that DOL intends to release a proposed “fiduciary” rule some time in December 2019, given the timing of the regulatory process, to minimize challenges or the potential reversal of its guidance, DOL may need to have its proposal out by October 2019 if it wants to be in a position to finish its rulemaking before the next Administration’s swearing in on January 20, 2021.

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After the 2016 Fiduciary Rule was struck down, some members of the retirement community anticipated that DOL would quickly release a cleanup rule confirming that there would be a return to the 1975 Fiduciary Rule with its familiar “five part” test. Instead, DOL announced a temporary enforcement bulletin in Field Assistance Bulletin 2018-02 while DOL worked to “provide appropriate guidance in the future” and evaluated “the need for other … prohibited transaction relief for investment advice fiduciaries.”

Effective Regulations and Congressional Resolutions

As the SEC has finalized its “Regulation Best Interest,” the consistent drumbeat from DOL officials is now that DOL will “harmonize” its regulatory framework for investment advice with the SEC package. To explain DOL’s potential time pressures, it is easiest to work backward from January 20, 2021.

On January 21, 2021, either President Trump will be sworn in for a second term (in which case, the deadlines described in this article will be of lesser importance) or someone else will be sworn in as the 46th president. Typically, one of the first actions an incoming president takes is to announce that any regulations that are not already in effect are being put on hold while the incoming administration reviews whether they are consistent with their agenda. “Effective” is not the same as “published in the Federal Register.” In reality, it means “actually being applied.” The upshot is that any new regulation would need to be effective by January 20, 2021.

For a major rule, agencies typically provide at least six months from the date that a rule is finalized before it becomes effective. This lag time is designed to provide regulated entities with an opportunity to come into compliance after the final rule is announced. To provide six months, a final rule would need to be published by July 20, 2020.

In addition to the risk that an incoming administration could simply pull the rule, a rule can be nullified through a resolution enacted under the Congressional Review Act (CRA). Under the Congressional Review Act, agencies are required to provide a notice when they promulgate a final rule. Then Congress has 60 legislative working days to pass a joint resolution disapproving of the rule.

The CRA is powerful because 60 legislative working days is longer than 60 calendar days and also because CRA resolutions cannot be filibustered in the Senate. Prior to the 2017 inauguration, the deadline to avoid having the new congress have the ability to disapprove of a rule via the CRA was June 13, 2016. If it elects to be conservative, DOL may decide to publish a final rule and provide the required notice to Congress before the end of May 2020.

A Daunting Timeline

Having established the deadlines, the process that DOL faces continues to be daunting.

Before a final rule is published, OMB would have to review it. This process generally takes roughly a month, so the final rule would need to be at OMB before the end of April 2020. Further, before DOL could prepare its final rule, it would need to review any comments that were submitted in response to its proposed rule and make any changes it determines appropriate. This would likely take two to three months from the end of the comment period (if DOL moved expeditiously), so any comment period would need to end before the end of January 2020. Before the comment period could end, it would need to begin.

Typically, a major proposal would have either a 60 or 90 day comment period. If the comment period is 90 days, a proposed rule would need to be issued before the end of October 2019. Before a proposed rule could be issued, OMB would need to review the proposed rule. Again, this process typically takes roughly a month. This one month period means that we’d expect to see notice on OMB’s website that a rule has been submitted by mid-September for any rule that DOL hopes to finalize without the rule being at risk of being overruled or withdrawn as a result of any change in administration in 2021.

The race is on.

 

Note from the editor:

David Levine and Kevin Walsh are both principals with Groom Law Group in Washington, D.C.

This feature is to provide general information only, does not constitute legal or tax advice, and cannot be used or substituted for legal or tax advice. Any opinions of the author do not necessarily reflect the stance of Institutional Shareholder Services or its affiliates.

Former House Speaker Boehner and Rep. Crowley Talk Union Pension Crisis

The influential former lawmakers are using their combined bipartisan stature to advocate for progress on the union multiemployer pension funding crisis.

Art by Melinda Beck


Former House Speaker John Boehner and former Congressman Joe Crowley recently announced the launch of the Retirement Security Coalition.

According to Boehner and Crowley, who hails from New York and served as a Chairman of the House Democratic Caucus during his time in Congress, the Coalition is made up of a diverse group of employers, labor unions and policy experts “dedicated to finding a common-ground solution to the multiemployer pension crisis in America.”

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The two announced their new advocacy effort shortly after the Ways and Means Committee of the U.S. House of Representatives marked up and voted along party lines to advance a bill formally called the Rehabilitation for Multiemployer Pensions Act, setting the stage for full floor consideration and the amendment process. The bill has also been colloquially referred to as the Butch Lewis Act, recognizing the late former president of Teamsters Local 100.

As passed by the committee, the Act would provide funds for 30-year loans and new financial assistance, in the form of grants, to financially troubled multiemployer pension plans. According to the text of the legislation, the program is designed to “operate primarily over the next 30 years.”

During the committee debate, Democrats, led by current Chairman Richard Neal of Massachusetts, generally voiced strong support for the Act. They suggest that the dire financial situation faced by some multiemployer pension systems is chiefly due to the Great Recession and long-lasting market challenges that have particularly harmed manufacturing and other blue-collar industries. They say economic conditions in the last two decades have forced many employers that offer these pensions to go insolvent themselves, which in turn left the multiemployer pension plans with fewer and more financially stressed contributing employers.

Republicans, on the other hand, led by Ranking Member Kevin Brady of Texas, were quick to cite their worries about ongoing mismanagement and even maleficence on the part of union leaders and pension trustees. They argue a loan program will do nothing to solve the underlying problems that weakened many of the plans to begin with, and they commonly use the term “bailout” to describe the program.

Boehner and Crowley Weigh In

Asked for their assessment on the current state of affairs, Boehner and Crowley tell PLANADVISER the multiemployer pension crisis must be solved quickly. Every day it grows more severe, they warn, leading to real-world consequences for union workers and retirees who have fully held up their end of the pension bargain.

“We are here to sound the alarm and say that we need to all come together to solve this problem and to protect the hard-earned retirement futures of millions of Americans,” Boehner says. “From New York to Ohio and across the country, hundreds of thousands of retirees and workers are already facing deep cuts to their pensions, and if we don’t change course, families will be devastated.”

“If the pension system in this country isn’t stabilized and it continues on its current trajectory, then millions of workers and families will suffer,” Crowley adds. “The impact will have a ripple effect on our national economy and communities across America.”

Asked for their take on the Butch Lewis Act in particular, Crowley shares the following: “There are a lot of solutions being offered. What John Boehner and I are doing is bringing attention to this crisis. What it’s going to take will be the public sector and the private sector working together to find a solution, and it may take some political courage to address some of these issues. I think that’s really what’s been holding this up. I think now, though, with the new Congress, with divided government in the House and Senate, there may be an opportunity here to see something really worked and engaged on.”

Boehner generally agrees with that assessment, noting there are dozens of feasible ideas being discussed and that it very well could require a combinations of ideas to provide stability to these plans.

“What I and Congressman Crowley and others involved in this Coalition are doing is trying to make people aware of how serious this crisis is and to encourage the public and private sectors to come together sooner rather than later to find a bipartisan, bicameral solution that achieves a good outcome,” Boehner says. “Congress has attempted several times to find a solution. I think what’s different now is the urgency there is to find a solution and find one now.”

Asked what they see as the potential outcome if no solution is reached in the near term, the former House members say the consequences will be dire, both for the union pensioners as well as the broader economy and the U.S. retirement system.

“This problem is getting worse,” Boehner says. “It’s urgent that action be taken, and the sooner the better, because the longer this problem goes on, the bigger the crisis is going to get. If action isn’t taken, millions of Americans are going to lose a significant portion of their retirement benefits, it’s going to affect state and local revenue, it’s going to affect the Pension Benefit Guaranty Corporation—and we’re going to have a real crisis on our hands.”

Crowley echoes the concern about the Pension Benefit Guaranty Corporation.

“The funding backstop for plans that have run out of money is projected to collapse by 2025,” Crowley observes. “The pension crisis does not only affect millions of people in multiemployer pension plans, it has broad implications that impact our economic interests and affect retirees, taxpayers, and Americans just entering the workforce. There’s a boomerang effect here if something isn’t done.”

A Bold Solution Is Needed

Offering some additional context to this discussion, absent deep benefit cuts, many union-sponsored multiemployer pension plans are likely to become insolvent even if they have access to subsidized loans, according to a white paper published recently by the Pension Analytics Group.

Using its Multiemployer Pension Simulation Model, the Pension Analytics Group projects that about 200 multiemployer pension plans covering over 3 million participants will become insolvent over the next 30 years, and that the PBGC’s multiemployer guarantee fund will itself be exhausted by 2027.

“A variety of options are available to prevent the guarantee fund’s exhaustion, such as empowering plans to take stronger actions to avoid insolvency, reducing the level of the PBGC’s benefit guarantee, and increasing the revenue flowing into the guarantee fund through premium increases or by securing additional revenue sources,” the white paper says. “To this list, we can add a concept that has been circulating recently on Capitol Hill—subsidized loans provided to troubled pension plans by the federal government.”

According to the analysis, across some 500 stochastic trials, the average total number of participants in plans projected to become insolvent is 3.1 million in the baseline scenario, and 2 million if the loan program is implemented.

“Thus, on average, the loan program prevents plans covering over 1 million participants from becoming insolvent,” the paper says.

Important to note, the results vary widely across stochastic trials, and in nearly one-third of the trials (30%), the loan program has little or no impact on the number of plans projected to become insolvent.

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