House Panel Approves Bill to Slow Fiduciary Rulemaking

The House Financial Services Committee on Wednesday approved a slew of bills that would slow the pace of regulatory proceedings to expand advisors' fiduciary responsibilities and relax registration requirements, among other measures.

For advisors, the most consequential bill the panel sent to the full House of Representatives was the Retail Investor Protection Act, authored by Rep. Ann Wagner (R-Mo.), which would delay the Department of Labor's efforts to expand the definition of a fiduciary under federal retirement law to include advisors to 401(k)s and other plans. The legislation would mandate that the Labor Department wait to issue its rules at least 60 days following the conclusion of a separate rulemaking proceeding underway at the Securities and Exchange Commission that could see an expansion of advisors' fiduciary responsibilities to include broker-dealers providing investment advice to retail investors.

Some industry groups and members of Congress have warned that the twin rulemakings could create overlapping and confusing new regulations, and have urged closer coordination between the two agencies. For their part, Labor and SEC officials have insisted they are working closely together as they develop their fiduciary proposals.

The bill, which the Financial Services Committee approved by a vote of 44 to 13, now heads to the full House for debate and vote. Even if it passes out of the lower chamber, it appears to face long odds of clearing the Senate. In the meantime, the official spearheading the Labor Department's fiduciary rulemaking on Tuesday indicated that the process will move forward unabated, with a proposal expected to emerge in a "couple months." The proposed fiduciary rules will be accompanied by a rigorous economic analysis that critics said was missing from the earlier proposal the department had offered, Phyllis Borzi, assistant secretary for the Labor Department's Employee Benefits Security Administration, said at a conference in Washington on Tuesday.

In addition to the Labor Department provisions, the bill would also direct the SEC to conduct further study before moving forward with its proposal for a uniform fiduciary standard. Specifically, the commission would be required to determine if there is a specific consumer harm that stems from the current regulation of broker-dealers, and the SEC's chief economist would have to conduct a cost-benefit analysis to justify proposed rules.

Critics of the bill, including New York Democrat Carolyn Maloney, said the SEC is already doing its due diligence in analyzing the impact of its proposal, and that the additional reporting requirements would be "duplicative and unnecessary," essentially an effort to slow-walk the rulemaking process.

"The SEC already has an effective and multi-layered cost-benefits analysis," Maloney said. "This is just adding another layer, which is costly and will impede their ability to be responsive to the requirements that they already have to do."

New Jersey Republican Scott Garrett countered that recent court rulings and a report from the Government Accountability Office have indicated that the SEC's economic analysis has produced insufficient support for the agency's rulemakings.

"The SEC has been time and time again shown to be wanting in this area," Garrett said.

Garrett was the author of a separate bill that the House approved last month that would require the SEC generally to produce more rigorous economic analyses in all of its regulatory proceedings.

Another bill that the Financial Services Committee approved on Wednesday would exempt advisors to certain private equity funds from registering with the SEC.

The panel also voted out a bill that would bar the Public Company Accounting Oversight Board from requiring firms to use specific corporate auditors or periodically rotate auditors, and another measure that would repeal the portion of the Dodd-Frank Wall Street reform bill that calls for new disclosures about executive compensation.