Affordable Retirement Advice Protection Act

Summary: Affordable Retirement Advice Protection Act  This bill amends the Employee Retirement Income Security Act of 1974 (ERISA) to modify requirements related to fiduciaries and the provision of investment advice for employer-sponsored retirement plans. It also prohibits the Department of Labor from implementing regulations changing the definition of &quot;fiduciary&quot; unless Congress affirmatively approves the rule.  (Under current law, a person who provides investment advice has a fiduciary obligation that requires the person to provide advice in the sole interest of plan participants and beneficiaries.) This bill amends the statutory definition of fiduciary by adding a definition of investment advice. It also adds a new statutory prohibited transaction exemption for transactions related to the provision of investment advice. (Sec. 2) The bill specifies that the purpose is to provide that advisors are subject to liability under ERISA if they: (1) provide advice that is impermissible under the prohibited transaction provisions, or (2) breach the best interest standard for the provision of investment advice.  (Sec. 3) The bill defines &quot;investment advice,&quot; as it relates to fiduciary duties under ERISA, as a recommendation that relates to:    the advisability of acquiring, holding, disposing, or exchanging any moneys or other property of a plan by the plan, plan participants, or plan beneficiaries, including any recommendation on whether to take a distribution of benefits from the plan or any recommendation relating to the investment of any moneys or other property of the plan to be distributed from the plan;   the management of moneys or other property of the plan, including recommendations relating to the management of moneys or other property to be distributed from the plan; or   the advisability of retaining or ceasing to retain a person who would receive a fee or other compensation for providing any of these types of advice.   For a recommendation to be considered investment advice, it must be rendered pursuant to either:    a written acknowledgment of the obligation of the investment advisor to act in accordance with fiduciary standards under ERISA; or  a mutual agreement, arrangement, or understanding (which may include limitations on the scope, timing, and responsibility to provide ongoing monitoring or advice services) between the person making the recommendation and the plan that the recommendation is individualized to the plan and the plan intends to materially rely on the recommendation in making investment or management decisions with respect to any moneys or other property of the plan.   Any disclaimer of a mutual agreement, arrangement, or understanding with respect to a recommendation must be limited to specified language indicating that the information is not individualized or intended to be materially relied on in making investment or management decisions for the plan.  The bill specifies circumstances under which information that is provided with certain disclosures, by certain individuals, or that is limited to certain non-individualized content is not treated as a recommendation made pursuant to a mutual agreement, arrangement, or understanding for purposes of the definition of investment advice and must include a disclaimer.  The bill establishes an exemption from ERISA prohibited transactions rules for certain transactions related to the provision of investment advice if the following conditions are met:   no more than reasonable compensation is paid for the advice;   if the advice is based on a limited range of investment options, which may consist of proprietary products, the limitations are clearly disclosed to the recipient prior to any transaction based on the advice using a notice that also indicates that the same or similar investments may be available at a different cost from other sources; and   if the advice may result in variable compensation to the investment advisor, the receipt of the compensation is clearly disclosed to the advice recipient prior to any transaction based on the advice.  A recommendation will not fail to qualify for the exemption solely because the person, acting in good faith and with reasonable diligence, makes an error or omission in disclosing the required information if the disclosure occurs as soon as practicable, but not later than 30 days after the person knows of the error or omission.  The Department of Labor may not amend any rules or administrative positions promulgated under, or applicable for purposes of, the ERISA statutory definition of fiduciary. No rule or administrative position promulgated by DOL on the subject before the date of enactment of the bill but not effective on January 1, 2015, may become effective unless legislation specifically approving the rules or administrative positions is enacted no later than 60 days after the enactment of this bill. The bill sets forth effective dates and transition rules. 

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Affordable Retirement Advice 
Protection Act''.

SEC. 2. PURPOSE.

    The purpose of this Act is to provide that advisors who--
            (1) provide advice that is impermissible under the 
        prohibited transaction provisions under section 406 of the 
        Employee Retirement Income Security Act of 1974, or
            (2) breach the best interest standard for the provision of 
        investment advice,
are subject to liability under the Employee Retirement Income Security 
Act of 1974.

SEC. 3. RULES RELATING TO THE PROVISION OF INVESTMENT ADVICE.

    (a) Amendments to the Employee Retirement Income Security Act of 
1974.--
            (1) Definition of investment advice.--Section 3(21) of the 
        Employee Retirement Income Security Act of 1974 (29 U.S.C. 
        1002(21)) is amended by adding at the end the following:
    ``(C)(i) For purposes of clause (ii) of subparagraph (A), the term 
`investment advice' means a recommendation that--
            ``(I) relates to--
                    ``(aa) the advisability of acquiring, holding, 
                disposing, or exchanging any moneys or other property 
                of a plan by the plan, plan participants, or plan 
                beneficiaries, including any recommendation whether to 
                take a distribution of benefits from such plan or any 
                recommendation relating to the investment of any moneys 
                or other property of such plan to be distributed from 
                such plan;
                    ``(bb) the management of moneys or other property 
                of such plan, including recommendations relating to the 
                management of moneys or other property to be 
                distributed from such plan; or
                    ``(cc) the advisability of retaining or ceasing to 
                retain a person who would receive a fee or other 
                compensation for providing any of the types of advice 
                described in this subclause; and
            ``(II) is rendered pursuant to--
                    ``(aa) a written acknowledgment of the obligation 
                of the advisor to comply with section 404 with respect 
                to the provision of such recommendation; or
                    ``(bb) a mutual agreement, arrangement, or 
                understanding, which may include limitations on scope, 
                timing, and responsibility to provide ongoing 
                monitoring or advice services, between the person 
                making such recommendation and the plan that such 
                recommendation is individualized to the plan and such 
                plan intends to materially rely on such recommendation 
                in making investment or management decisions with 
                respect to any moneys or other property of such plan.
    ``(ii) For purposes of clause (i)(II)(bb), any disclaimer of a 
mutual agreement, arrangement, or understanding shall only state the 
following: `This information is not individualized to you, and you are 
not intended to materially rely on this information in making 
investment or management decisions.'. Such disclaimer shall not be 
effective unless such disclaimer is in writing and is communicated in a 
clear and prominent manner and an objective person would reasonably 
conclude that, based on all the facts and circumstances, there was not 
a mutual agreement, arrangement, or understanding.
    ``(iii) For purposes of clause (i)(II)(bb), information shall not 
be considered to be a recommendation made pursuant to a mutual 
agreement, arrangement, or understanding, and such information shall 
contain the disclaimer required by clause (ii), if--
            ``(I) it is provided in conjunction with full and fair 
        disclosure in writing to a plan, plan participant, or 
        beneficiary that the person providing the information is doing 
        so in its marketing or sales capacity, including any 
        information regarding the terms and conditions of the 
        engagement of the person providing the information, and that 
        the person is not intending to provide investment advice within 
        the meaning of this subparagraph or to otherwise act within and 
        under the obligations of the best interest standard as 
        described in this subparagraph;
            ``(II) the person providing the information is a 
        counterparty or service provider to the plan in connection with 
        any transaction based on the information (including a service 
        arrangement, sale, purchase, loan, bilateral contract, swap (as 
        defined in section 1a of the Commodity Exchange Act (7 U.S.C. 
        1a)), or security-based swap (as defined in section 3(a) of the 
        Securities Exchange Act (15 U.S.C. 78c(a)))), but only if--
                    ``(aa) the plan is represented, in connection with 
                such transaction, by a plan fiduciary that is 
                independent of the person providing the information, 
                and, except in the case of a swap or security-based 
                swap, independent of the plan sponsor; and
                    ``(bb) prior to such transaction, the independent 
                plan fiduciary represents in writing to the person 
                providing the information that it is aware that the 
                person has a financial interest in the transaction and 
                that it has determined that the person is not intending 
                to provide investment advice within the meaning of this 
                subparagraph or to otherwise act as a fiduciary to the 
                plan subject to section 404;
            ``(III) the person providing the information is an employee 
        of any sponsoring employer or employee organization who 
        provides the information to the plan for no fee or other 
        compensation other than the employee's normal compensation;
            ``(IV) the person providing the information discloses in 
        writing to the plan fiduciary that the person is not 
        undertaking to provide investment advice as a fiduciary to the 
        plan subject to section 404 and the information consists solely 
        of--
                    ``(aa) making available to the plan, without regard 
                to the individualized needs of the plan, securities or 
                other property through a platform or similar mechanism 
                from which a plan fiduciary may select or monitor 
                investment alternatives, including qualified default 
                investment alternatives, into which plan participants 
                or beneficiaries may direct the investment of assets 
                held in, or contributed to, their individual accounts; 
                or
                    ``(bb) in connection with a platform or similar 
                mechanism described in item (aa)--
                            ``(AA) identifying investment alternatives 
                        that meet objective criteria specified by the 
                        plan, such as criteria concerning expense 
                        ratios, fund sizes, types of asset, or credit 
                        quality; or
                            ``(BB) providing objective financial data 
                        and comparisons with independent benchmarks to 
                        the plan;
            ``(V) the information consists solely of valuation 
        information; or
            ``(VI) the information consists solely of--
                    ``(aa) information described in Department of Labor 
                Interpretive Bulletin 96-1 (29 C.F.R. 2509.96-1, as in 
                effect on January 1, 2015), regardless of whether such 
                education is provided to a plan or plan fiduciary or a 
                participant or beneficiary;
                    ``(bb) information provided to participants or 
                beneficiaries regarding the factors to consider in 
                deciding whether to elect to receive a distribution 
                from a plan or an individual retirement plan (as 
                defined in section 7701(a)(37) of the Internal Revenue 
                Code of 1986) and whether to roll over such 
                distribution to a plan or an individual retirement plan 
                (as defined in section 7701(a)(37) of the Internal 
                Revenue Code of 1986), so long as any examples of 
                different distribution alternatives are accompanied by 
                all material facts and assumptions on which the 
                examples are based; or
                    ``(cc) any additional information treated as 
                education by the Secretary.''.
            (2) Exemption relating to investment advice.--Section 
        408(b) of the Employee Retirement Income Security Act of 1974 
        is amended by adding at the end the following:
            ``(21)(A) Any transaction, including a contract for 
        service, between a person providing investment advice described 
        in section 3(21)(A)(ii) and the advice recipient in connection 
        with such investment advice, and any transaction consisting of 
        the provision of such investment advice, if the following 
        conditions are satisfied:
                    ``(i) No more than reasonable compensation is paid 
                (as determined under section 408(b)(2)) for such 
                investment advice.
                    ``(ii) If the investment advice is based on a 
                limited range of investment options (which may consist, 
                in whole or in part, of proprietary products), such 
                limitations shall be clearly disclosed to the advice 
                recipient prior to any transaction based on the 
                investment advice in the form of a notice that only 
                states the following: `This recommendation is based on 
                a limited range of investment options, and the same or 
                similar investments may be available at a different 
                cost (greater or lesser) from other sources.'.
                    ``(iii) If the investment advice may result in 
                variable compensation to the person providing the 
                investment advice (or any affiliate of such person), 
                the receipt of such compensation shall be clearly 
                disclosed to the advice recipient prior to any 
                transaction based on the investment advice. For 
                purposes of this subparagraph, clear disclosure of 
                variable compensation shall include, in a manner 
                calculated to be understood by the average individual, 
                each of the following:
                            ``(I) A notice that states only the 
                        following: `This recommendation may result in 
                        varying amounts of fees or other compensation 
                        to the person providing the recommendation (or 
                        its affiliate), and the same or similar 
                        investments may be available at a different 
                        cost (greater or lesser) from other sources.'. 
                        Any regulations or administrative guidance 
                        implementing this subclause may not require 
                        this notice to be updated more than annually.
                            ``(II) A description of any fee or other 
                        compensation that is directly or indirectly 
                        payable to the person (or its affiliate) by the 
                        advice recipient with respect to such 
                        transaction (expressed as an amount, formula, 
                        percentage of assets, per capita charge, or 
                        estimate or range of such compensation).
                            ``(III) A description of the types and 
                        ranges of any compensation that may be directly 
                        or indirectly payable to the person (or its 
                        affiliate) by any third party in connection 
                        with such transaction (expressed as an amount, 
                        formula, percentage of assets, per capita 
                        charge, or estimate or range of such 
                        compensation).
                            ``(IV) Upon request of the advice 
                        recipient, a disclosure of the specific amounts 
                        of compensation described in clause (iii) that 
                        the person will receive in connection with the 
                        particular transaction (expressed as an amount, 
                        formula, percentage of assets, per capita 
                        charge, or estimate of such compensation).
            ``(B) No recommendation will fail to satisfy the conditions 
        described in clauses (i) through (iii) of subparagraph (A) 
        solely because the person, acting in good faith and with 
        reasonable diligence, makes an error or omission in disclosing 
        the information specified in such clauses, provided that the 
        person discloses the correct information to the advice 
        recipient as soon as practicable, but not later than 30 days 
        from the date on which the person knows of such error or 
        omission.
            ``(C) Any notice provided pursuant to a requirement under 
        clause (ii) or clause (iii)(I) of subparagraph (A) shall have 
        no effect on any other notice otherwise required without regard 
        to this title, and shall be provided in addition to, and not in 
        lieu of, any other such notice.
            ``(D) For purposes of this paragraph, the term `affiliate' 
        has the meaning given in subsection (g)(11)(B).''.
    (b) Effective Date.--
            (1) Modification of certain rules, and rules and 
        administrative positions promulgated before enactment but not 
        effective on january 1, 2015, prohibited.--The Department of 
        Labor is prohibited from amending any rules or administrative 
        positions promulgated under, or applicable for purposes of, 
        section 3(21) of the Employee Retirement Income Security Act of 
        1974 (including Department of Labor Interpretive Bulletin 96-1 
        (29 C.F.R. 2509.96-1) and Department of Labor Advisory Opinion 
        2005-23A), and no such rule or administrative position 
        promulgated by the Department of Labor prior to the date of the 
        enactment of this Act but not effective on January 1, 2015, may 
        become effective unless a bill or joint resolution referred to 
        in paragraph (3) is enacted as described in such paragraph not 
        later than 60 days after the date of the enactment of this Act.
            (2) General effective date of amendments.--Except as 
        provided in paragraph (3), the amendments made by subsection 
        (a) of this section shall take effect on the 61st day after the 
        date of the enactment of this Act and shall apply with respect 
        to information provided or recommendations made on or after 2 
        years after the date of the enactment of this Act.
            (3) Exception.--If a bill or joint resolution is enacted 
        prior to the 61st day after the date of the enactment of this 
        Act that specifically approves any rules or administrative 
        positions promulgated under, or applicable for purposes of, 
        section 3(21) of the Employee Retirement Income Security Act of 
        1974 that are not in effect on January 1, 2015, the amendments 
        made by subsection (a) of this section shall not take effect.
    (c) Grandfathered Transactions and Services.--The amendments made 
by subsection (a) shall not apply to any service or transaction 
rendered, entered into, or for which a person has been compensated 
prior to the date on which the amendments made by subsection (a) of 
this Act become effective under subsection (b)(2).
    (d) Transition.--If the amendments made by subsection (a) of this 
section take effect, then nothing in this section shall be construed to 
prohibit the issuance of guidance to carry out such amendments so long 
as such guidance is necessary to implement such amendments. Until such 
time as regulations or other guidance are issued to carry out such 
amendments, a plan or a fiduciary shall be treated as meeting the 
requirements of such amendments if the plan or fiduciary, as the case 
may be, complies with a reasonable good faith interpretation of such 
amendments.