Agency That Oversees Fiduciary Rule May Be Leaderless Until Fall

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By Kristen Ricaurte Knebel

Now that Alexander Acosta is in place as the Secretary of Labor, attention shifts to who will lead DOL’s subagencies like the Employee Benefits Security Administration.

There is some sense of urgency in getting an EBSA head in place, given that President Donald Trump asked the DOL to review the Obama-era fiduciary rule, which was drafted by EBSA, the subagency tasked with regulating employee benefits. The rule, portions of which are set to become applicable on June 9, aims to reduce the allegedly conflicted investment advice given to retirement savers.

Even if Trump nominates an EBSA head in the coming days, confirmation by the Senate may still take months. It’s taken an average of four months for EBSA secretaries to receive Senate confirmation during the past several administrations, according to Bloomberg BNA research.

“If it’s someone who’s going to garner opposition, there’s going to be a real push to at least do some real background work on that person’s qualifications,” Rajesh D. Nayak, director of research with the National Employment Law Project, told Bloomberg BNA. NELP is a non-profit research and policy organization that advocates for employment and labor rights. Nayak served as deputy chief of staff to former Secretary of Labor Thomas Perez.

The confirmation process can also hinge on what else is taking up the Senate’s time, Mark B. Harkins, senior fellow with the Government Affairs Institute at Georgetown University, told Bloomberg BNA. The GAI provides education about Congressional process, organization and practices.

Health care will take up some of the Senate’s time, as well as other nominations that need to be confirmed, Harkins said. The looming presence of the fiduciary rule may mean that the EBSA nomination is fast-tracked, he said.

Trump also has an advantage that other presidents haven’t had in their early days in office: He can get a nominee through the Senate with fewer than 60 votes, Harkins said.

Past Secretaries

It took Ann L. Combs, who served as assistant secretary under President George W. Bush, less than a month to be confirmed by the Senate. On the flip side, it took Leslie B. Kramerich, nominated by President Bill Clinton, five months to be confirmed.

Three of the secretaries, Richard McGahey, Kramerich and Bradford P. Campbell, were all acting secretaries for EBSA before being nominated and confirmed.

McGahey, who served in the post from February-December 1999, appears to be an outlier in the time it took to get confirmed. McGahey was appointed to the position in February 1999 by Secretary of Labor Alexis Herman, but wasn’t formally nominated by Bill Clinton until March. Because a hold had been placed on pending Labor Department nominees that year by Sen. Paul Coverdell (R-Ga.), McGahey wasn’t confirmed until November. He announced in December that that he was leaving for a job in the private sector.

To contact the reporter on this story: Kristen Ricaurte Knebel in Washington at kknebel@bna.com

To contact the editor responsible for this story: Jo-el J. Meyer at jmeyer@bna.com

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