House lawmakers are being asked to co-sign a draft letter circulating on Capitol Hill asking the Department of Labor to hold another 15- to 30-day comment period on its fiduciary rule before finalizing it.
The draft letter, penned by Rep. Jared Polis, D-Colo., a member of the House Rules and Education and Workforce committees, states that “upon determining the specific changes” DOL will make to its conflict of interest rule under the Employee Retirement Income Security Act, that the department “open a 15- to 30-day comment period prior to finalizing” the rule.
Such a comment period would not disrupt DOL’s “intended timeline of implementing the rule by the end of 2016 while complying with the Administrative Procedure Act (APA),” the draft letter states.
In order to stick to this timeline, the draft letter states, DOL “can submit the rule to OMB for an expedited review period, which could last less than a week, as has been the case during multiple other rulemakings.” It is within DOL’s “legal authority,” the letter states, “to request and receive this expedited timeline.”
The draft letter cites a supplemental shortened comment period that was found to be legal in 2001 under the APA in Texas Office of Public Utility Counsel v. FCC by the U.S. Court of Appeals for the Fifth Circuit.
“Given the significance of this rule in the lives of all Americans, particularly middle-class individuals, and the existing precedent for providing a supplemental comment period, we strongly encourage you to consider this approach,” the letter states.
But Dennis Kelleher, president and CEO of Better Markets, a group that advocates for investor protection, told House lawmakers in a Thursday letter that reopening the comment period “would only open the floodgates to another round of comments, which will oblige the DOL to undertake yet another lengthy and protracted review process.”
Moreover, he says, “delaying the rule again comes with no benefit that will enhance the rule because all interested parties have already thoroughly and repeatedly expressed their views during the extensive process thus far.” Furthermore, “the request for an additional comment time has no basis in law. Such a request may sound reasonable and benign, but courts strongly disfavor this practice because it ‘degrade[s]’ the rulemaking process by making agencies fear that they could find themselves “stuck in an infinite feedback loop of public comments.”
Earlier, House GOP lawmakers gave Labor Secretary Thomas Perez an Oct. 21 deadline to tell them how DOL will make “substantial changes” to “shortcomings” in its fiduciary plan. The lawmakers also asked Perez to allow stakeholders to view those changes before issuing a final rule.
Perez rebuffed that request, saying at an event in New York on Oct. 22 that DOL was “still reviewing comments” and that to announce anything before that is completed would be “irresponsible.”
Perez has stated that a final rule would be issued after the comment period expired on Sept. 24.
On Tuesday, the House passed by a 245-186 vote Rep. Ann Wagner’s bill to stop DOL from moving forward on the fiduciary rule.
Wagner’s bill, H.R. 1090, the Retail Investor Protection Act, passed the House Rules Committee Monday evening.
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