In a joint letter to acting Labor Secretary Julie Su, seven Democratic senators and one independent asked for the department to extend the proposal's comment period.
"We believe the current 60-day comment period is insufficient for stakeholder engagement on a rule that the agency has spent almost three years drafting, more than a decade considering, and will have such broad impacts on retirement savers," wrote Sens. Jon Tester, D-Mont.; Gary Peters, D-Mich.; Joe Manchin, D-W.Va.; Chris Coons, D-Del.; Ben Cardin, D-Md.; Margaret Wood Hassan, D-N.H.; Kyrsten Sinema, I-Ariz.; and John Hickenlooper, D-Colo., in a Dec. 20 letter.
The Labor Department has a long, complicated history of various rule-makings pertaining to the fiduciary definition.
In 2010, the department issued a rule proposal to extend the definition of a fiduciary, which it later withdrew. Then, under the Obama administration in 2016, the department issued another iteration of the rule, though that rule was later struck down by the 5th U.S. Circuit Court of Appeals, New Orleans, in 2018.
In 2020, under the Trump administration, the DOL issued a rule reinstating the five-part test and later finalized a prohibited transaction exemption allowing investment-advice fiduciaries to receive compensation for more guidance, such as rollover advice. The Biden administration issued guidance on that exemption in 2021, in the form of frequently asked questions; and in February, a federal judge vacated one of the FAQs.
The senators wrote that the new proposal's comment period, which ends Jan. 2, is "significantly shorter" than it was for the 2010 and 2016 versions of the proposal, and "includes several major holidays, which has the effect of abbreviating the comment period even further."
While they don't give specifics on how long the extension should be, the senators said they are concerned the department is "rushing this process and the people that will be hurt are the ones (it is) trying to help the most."
In a separate Dec. 20 letter, Sen. Ron Wyden, D-Ore., asked for the comment period to be extended by 30 days, citing "the many thoughtful comments that were shared during the (department's) hearing" on Dec. 12.
Meanwhile, the U.S. Small Business Administration's Office of Advocacy asked for the comment period to be extended by at least 60 days.
"The small entities that will be required to comply with the regulation are in the best position to provide EBSA (Employee Benefits Security Administration) with information about the potential costs associated with the proposal," the organization wrote in their Dec. 20 letter to EBSA's Assistant Secretary Lisa M. Gomez.
However, small entities have told SBA's Office of Advocacy that "they lack the resources necessary to respond to such an extensive proposal within the current time frame," especially given that the comment period falls over several holidays, the letter said.
"Extending the comment period by at least 60 days will provide crucial consideration to the challenges that small entities face and ensure that they have adequate time to provide comments given their limited resources and competing commitments," the organization wrote.
Separately, 11 Republicans on the House Education and Workforce Committee, led by Chair Virginia Foxx, R-N.C., asked for the department to withdraw the proposal altogether.
"This confusing regulatory morass creates unnecessary uncertainty in the marketplace — harming retirement professionals and savers alike," the lawmakers wrote in a Dec. 21 letter.
The lawmakers expressed concern that the proposal would have a disproportionate impact on lower- and middle-income Americans and said the rule extends beyond the department's jurisdiction.
"This disastrous proposal would reduce access to and choice of retirement products for millions of Americans, leaving them less financially secure for retirement," the letter stated. "DOL should stop threatening the retirement security of hardworking Americans and should withdraw this harmful proposal."
Empower, a retirement plan record keeper, also asked the DOL to withdraw the proposal in a letter sent Dec. 20, contending it would make plan formation more difficult rather than easier.
On Nov. 15, the department denied a request to extend the proposal's comment period, following a letter sent by 18 business and financial services trade groups asking for an extension.
