On July 17, 2015, the Office of Advocacy submitted a comment letter to the Employee Benefits Security Administration (EBSA) in response to the agency’s April 14, 2015 proposed rule, Definition of the Term “Fiduciary”; Conflict of Interest Rule–Retirement Investment Advice. The proposed rule would expand the definition of “fiduciary” of an employee benefit plan by providing investment advice to a plan, its participants, or beneficiaries. The proposal would extend the fiduciary standard of care to all advisers of workplace retirement plans and IRAs. The proposed rule would require these advisers to disclose any potential conflicts of interests and the proposal would again prohibit advisers from engaging in certain transactions.
Based on input from small business owners and representatives, Advocacy is concerned that the Initial Regulatory Flexibility Analysis (IRFA) contained in the proposed rule lacks essential information required under the Regulatory Flexibility Act (RFA). The IRFA does not adequately estimate the number of small entities that would be affected and does not accurately estimate the costs of the proposal. Advocacy recommends that the EBSA publish for public comment a Supplemental IRFA before proceeding with this rulemaking. The Supplemental IRFA should provide more accurate estimates of the number of small entities impacted by proposal and of the costs of the proposal. Advocacy also encourages EBSA to consider ways to decrease the potential small business burdens of the proposed rule, including expanding the scope of exemptions contained in the proposal.
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