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FYI: DOL Looks to Reconsider Fiduciary Rule in 2019

FYI: The DOL’s latest regulatory agenda indicates that it is “considering regulatory options” in light of the Fifth Circuit court case that vacated the DOL Fiduciary Rule earlier this year. The agenda lists the timetable for a “Final Rule” on this as September 2019.

Notably, September 2019 is also listed on the SEC’s current regulatory agenda as the timetable for “Final Action” on proposed Regulation Best Interest (as well as proposed Form CRS and the proposed Investment Adviser Standard of Conduct Interpretative Release).

This coincidence of dates between the DOL and SEC may indicate that the agencies are attempting to better coordinate their rules governing advice. Notably, however, federal agencies are not required to follow the timetables listed on their regulatory agendas and the DOL agenda only indicates that it is considering its “options,” not whether it expects to issue a new rule proposal.

Some watchers speculate that the SEC may try to issue its final conduct rule well before September 2019, perhaps as early as the second quarter of next year. If it did, that could give the DOL time to take its next steps by September. However, in addition to the significant controversy following proposed Reg BI, factors that could call into question the timetable on any new SEC rule include the expected departure of Kara Stein as an SEC Commissioner (likely at year-end 2018) and the yet-to-be-announced results of investor testing that could necessitate a substantial redesign of the proposed Form CRS Relationship Summary.

DOL’s Fall 2018 Regulatory Agenda listing for Fiduciary Rule: https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201810&RIN=1210-AB82.

SEC’s Fall 2018 Regulatory Agenda listing for Regulation BI: https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201810&RIN=3235-AM35.

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