Sen. Patty Murray, D-Wash. Sen. Patty Murray, D-Wash.

Lawmakers told the Labor Department late Wednesday afternoon that its public hearings on Labor’s fiduciary prohibited transaction exemption, which start Thursday, are too rushed and restrictive and that Labor should reopen the comment period after the hearing.

In a letter to Labor on Wednesday, Sen. Patty Murray, D-Wash., ranking member on the Senate Health, Education, Labor & Pensions Committee along with Rep. Bobby Scott, D-Va., chairman of the House Education and Labor Committee, said that those wishing to testify on the proposal must have done the following in the span of one week:

  • submitted a comment letter in advance of knowing a hearing would be held,
  • been notified of the hearing,
  • submitted outlines describing the “material factual issues” ensuring their testimony meets the outlined requirements, and
  • banded together with others and appointed a common representative to speak on their behalf in order to receive “preference” for testifying at the hearing.

“All of this represents a tall order to complete within a week’s time under normal circumstances, but it is especially challenging during an ongoing pandemic that continues to impact workplaces in a variety of ways,” the lawmakers said.

“The manner in which the public hearing is structured would cause an unbiased observer to conclude the Department is more concerned with curtailing engagement with the public than receiving feedback from them.”

In August 2015, Labor also held three and a half days of public hearings on its fiduciary rule, which was vacated by the U.S. Court of Appeals for the 5th Circuit.

“Unfortunately, in this instance, the Department has scheduled a single day for a hearing,” Sept. 3, and has offered Sept. 4 “if necessary,” the lawmakers wrote.

The lawmakers reminded Labor that “when the Department conducted a similar rulemaking in 2015, it reopened the comment period for another 14 days” following its three and a half days of public hearings.

“We call on the Department to do the same here and give the public the same opportunity that was provided by the Obama Administration five years ago for a similar rule,” Murray and Scott said.

— Related on ThinkAdvisor: