Some attorneys said the text of the final rule was clear in expressing the Frost letter would still be viable under the fiduciary rule. But the DOL likely felt the need to explicitly state this point in the second round of FAQs to eliminate any unintended confusion that arose from the first tranche. “People got concerned and they reiterated it,” said David Levine, principal at Groom Law Group. However, there's still confusion as to if advisers are able to use the Frost letter with respect to an aspect of BICE known as BICE Lite, a more streamlined, less-involved exemption available only to level-fee fiduciaries, Mr. Levine said. “There's a lot of concern you can't use BICE Lite with Frost,” Mr. Levine said. “It's still unclear” if advisers can receive third-party payments and still use that particular exemption, he added. One example in which this situation might arise is if advisers recommend themselves as consultants to a 401(k) plan for a level fee, which would partly be paid with revenue sharing, according to Mr. Levine. He questions, given available guidance, whether this practice, which “happens a lot,” would satisfy the standards of BICE Lite.DOL #FiduciaryRule FAQ Part II Q7 confirms "fee offset" under AO 97-15A is still acceptable to avoid PT. No PT = no need for PTE i.e., BICE
— Jason C. Roberts (@JasonRobertsESQ) January 13, 2017
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