Ahead of the recent announcement from the DoL that it will re-propose its rule on the definition of fiduciary (see “EBSA to Re-Propose Definition of Fiduciary Rule“), Davis told Conference attendees that the DoL was trying to clarify the Employee Retirement Income Security Act (ERISA) definition of a person giving investment advice for a fee and what he described as the very restrictive five-part test. He said new guidance would be coming early next year.
Davis talked about efforts related to target-date funds (TDFs) and said The Department would be issuing guidance for fiduciaries about due diligence in the selection of TDFs – what to look for and what questions to ask. He said the DoL doesn’t want to get in the way of innovation, but believes investors should understand glide paths.The DoL has not stated a position on changing from deferring taxes on retirement plan contributions to offering a tax credit, but Davis pointed out it is a very active conversation in Washington right now (see “Industry Groups Urge no Changes to Retirement Savings Tax Advantages“).
On lifetime income options for retirement plans, Davis explained that there is not a lot of political backing for bringing back defined benefit plans, but there is a desire to carry over attractive traits of DBs to defined contribution plans. The DoL received more than 800 comments to its request for information (RFI) on lifetime income (see "Lifetime Income Hearing Witnesses Demand Fiduciary Shield"). The agency is working on rules for participant benefit statements translating account balances to monthly payments in retirement – whether the calculation should use the current account balance or a projected account balance. The Department is also considering guidance about the selection of annuities.
Regarding fee disclosure regulations under 408(b)(2), Davis told PLANADVISER National Conference attendees that the DoL is still working on guidance for how to do the summary document and looking at the treatment of rollover advice. Davis said he is not sure of the timeline yet for more guidance and he couldn’t comment on whether the final regulations would be much different than the interim final regulations.
Responding to a question about multiple employer plans (MEPs), Davis explained that many sponsors join an MEP to avoid audits and have suggested the audit limit be raised to 250 participants instead of 100. The DoL is still looking at whether MEPs will be beneficial to small businesses and their employees, he said.
Finally, Davis said the top issues the DoL is telling auditors to focus on for enforcement include bankruptcies and making sure participants are represented and health care plans and Multiple Employer Welfare Arrangements to ensure compliance with the Patient Protection and Affordable Care Act.