25 April 2024

DOL Asked to Back Off Brokerage Rules

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Defined contribution industry representatives are resuming efforts to convince Labor Department officials that more extensive regulation of self-directed brokerage accounts is unnecessary and burdensome. Officials from organizations representing large plans, record keepers and other providers said in interviews and in comments filed with the DOL that existing rules already protect participants and enable fiduciaries to follow the requirements of prudence of the Employee Retirement Income Security Act of 1974.

They warn that more rules — similar to ideas floated and then quickly withdrawn by the DOL in 2012 — would raise costs, increase fiduciary risk, discourage plans from offering brokerage accounts and encourage plans with such options to drop them.

Industry participants were reacting to the Labor Department's request for information in August, asking 39 questions about the costs, administration and disclosure policies of self-directed brokerage options. The RFI noted the department's concern that some DC plan executives might offer brokerage-account-only investment menus to dodge some fiduciary duties.

Current regulations governing the use and administration of brokerage windows among larger plans — the ones that offer brokerage accounts as a supplement to core menus — are “working well.” Survey results released this month by the Plan Sponsor Council of America, Chicago, show brokerage accounts represented an average 2.3% of total assets last year among 613 plans with combined $832 billion in assets.

For a “typical” DC plan offering a self-directed brokerage account, 1% to 2% of participants invest in the option, representing 3% to 5% of total plan assets, Edmund Murphy III, the Denver-based president of retirement services for Empower Retirement.

Two years ago, DOL officials issued a field assistance bulletin — a formal guidance document — on fee-disclosure rules that also outlined DOL's views on how plans should monitor and administer brokerage-account windows. It said if the number of participants choosing a specific investment in a brokerage-account exceeded a certain threshold, that investment could be subject to the same fiduciary standards as investments in a plan's core menu.

The industry erupted in protest, saying the document was an attempt at back-door regulation. They said it would create an enormous expense and said record keepers lacked the technology to enable such monitoring. Now, industry participants want to make sure the RFI doesn't lead to a replay of 2012.

Ms. Borzi believes plan sponsors should “take a measured approach to managing brokerage windows,” Robert Benish, executive director of the PSCA, said if enhanced monitoring of brokerage accounts is enacted, plan sponsors might drop the option for fear of taking on additional fiduciary risk, cost and administrative responsibilities. The liquidation process could create its own set of fiduciary risks and uncertainty, he said.

Some DC industry participants said Labor Department officials should distinguish between plans that offer brokerage accounts as a supplement to their investment lineups and plans for which the brokerage account is the sole investment option.

Charles Schwab & Co. officials want the DOL to look at self-directed brokerage accounts in a “bifurcated manner,” making a distinction between plans for which brokerage accounts are supplemental options and those for which brokerage accounts are the sole option, Lawrence Bohrer, the Denver-based vice president of corporate brokerage retirement services, said in an interview.

Click here to access the full article on Pensions & Investments. 

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