American Council of Life Insurers 

101 Constitution Avenue, NW, Washington, DC 20001-2133

www.acli.com 

 

 

 

Carl B. Wilkerson 

Vice President & Chief Counsel 

Securities & Litigation

(202) 624-2118 t (866) 953-4096 f

carlwilkerson@acli.com

April 30, 2015

Employee Benefits Security Administration

U.S. Department of Labor

200 Constitution Avenue, NW

Washington, DC 20210

Re: Request for an Extended Comment Period on the Proposed Rule Addressing the Definition of 

“Fiduciary” and Conflict of Interest Requirements for Retirement Investment Advice [RIN 1210–

AB32] and Related Proposed Exemptions and Amendments [ZRIN 1210-ZA25] (“the Fiduciary 

Proposal”)

The Department of Labor recently invited comment on its Fiduciary Proposal. The initiative 

appeared in the Federal Register on April 20, 2015 and established a comment deadline expiring 

on July 6, 2015. The proposal will directly impact life insurers, individuals providing advice to 

employee benefit plan fiduciaries, plan participants, seniors seeking guaranteed lifetime income,

small business employees wanting access to a retirement plan, and individuals starting or

preserving their retirement savings. This detailed and significant initiative merits careful analysis 

that will be challenging to fully execute within the comment period. An extended comment period 

will generate more valuable and informed input. 

Life insurers have actively participated in numerous Department of Labor (DOL) rulemakings over 

many years, including a 2010 proposal addressing similar issues involving retirement investment 

advice and accompanying fiduciary responsibility. DOL reconsidered and reworked the 2010

proposal over a 4 1⁄2 year period and issued the Fiduciary Proposal in 2015. Life insurers are eager 

to again offer constructive input on this significant, detailed initiative. 

ACLI promptly circulated the Fiduciary Proposal to its membership and convened meetings of its 

Retirement Plans Committee. Four other ACLI Committees are also monitoring and evaluating the 

Fiduciary Proposal. This process ensures broad, consensus-based policy development and 

provides valuable substantive feedback. It is, however, meticulous and time consuming. 

The important task of identifying and thoroughly analyzing the full implications of the Fiduciary 

Proposal requires concentrated analytical resources. We will continue to evaluate the regulatory, 

structural and financial implications of the proposal. Moreover, each of these considerations must 

be analyzed against unique fact patterns, business models, and organizational structures. 

Industry groups like our trade association circulate regulatory proposals, elicit membership input, 

develop a consensus, and circulate draft letters of comment before submission. This worthwhile, 
ACLI Request for Comment Period Extension on DOL Fiduciary Proposal

2

but time intensive, process is difficult to execute in a 75 day comment period, particularly given the 

proposals’ significance and complexity. 

The special time burdens confronting regulated industries and large organizations in digesting 

regulatory proposals were explicitly recognized by the Administrative Conference of the United 

States in its publication entitled A Guide to Federal Agency Rulemaking1 (“Guide”), which notes 

that: 

[i]nterested persons often are large organizations, which may need time to coordinate an 

organizational response, or to authorize expenditure of funds to do the research needed to 

produce informed comments.2

 

The Guide reviews the legislative history of the Administrative Procedure Act and emphasizes that 

the notice of proposed rulemaking “must be sufficient to fairly apprise interested parties of the 

issues involved, so that they may present responsive data or argument.” 3

 The Guide further 

explains that rules developed through notice and comment procedures must be rational, and that 

notice and opportunity for comment under §553 of the APA should properly “give interested persons 

a chance to submit available information to an agency to enhance the agency's knowledge of the 

subject matter of the rulemaking.”4

 The Guide also points out that “informal rulemaking procedures 

should provide interested persons an opportunity to challenge the factual assumptions on which the 

agency is proceeding and to show in what respect such assumptions are erroneous.”5 Our request 

for an extended comment period comports with these goals. 

Need for an Extended Comment Period

Unlike some other commentators, ACLI’s submission will reflect the views of 284 life insurance 

companies representing 90% of the life insurance and annuities business. Our consensus-based 

position, therefore, will provide substantial, broad input for DOL on this initiative. By the same token, 

however, the process of achieving consensus is more time consuming for a large organization 

representing diverse interests.6

The Fiduciary Proposal appears in a series of complex releases spanning 359 Federal Register 

pages with 458 substantive footnotes and numerous targeted questions. The initiative is profound, 

and merits thorough analysis and input. In responsibly formulating comment, our members will hold 

multiple meetings to digest the initiative. This high-level conceptual review of all the proposal’s 

features is essential, time consuming, and fundamental to any rulemaking review. Many of the 

specific requests for comment present valuable queries requiring substantial analytical or 

conceptual effort. 

In addition to evaluating the initiative’s substance, several other significant statutory, procedural and 

cost considerations merit careful analysis, such as the proposal’s: 

 1 See, A Guide to Federal Agency Rulemaking (1983) at 124. The American Bar Association updated and republished this 

Guide in 1998. See Lubbers, A Guide to Federal Agency Rulemaking, Third Edition (1998), American Bar Association, 

Government and Public Lawyers Division and Section of Administrative Law and Regulatory Practice. Subsequent citations 

to the Guide are to the updated and revised ABA publication. 

2 See Guide at 196. 3 Administrative Procedure Act: Legislative History, S. Doc. No.24879-258 (1946) [hereinafter legislative history of the 

APA].

4 See Guide at 197. 5 Id at 182 and 196. 6 This sentiment is drawn directly from the Guide text cited in footnote 3 supra. 
ACLI Request for Comment Period Extension on DOL Fiduciary Proposal

3

• Regulatory Impact Analysis;

• Effects on competition and efficiency;

• Paperwork Reduction Act considerations; and, 

• Regulatory Flexibility Act analysis.

We would appreciate the reasonable opportunity to review and respond to the important, 

requirements and practical realities of the proposal. An extended comment period would enable 

scrutiny and input in response to these matters. The DOL has devoted over 4 1⁄2 years developing 

the Fiduciary Proposal. The 75 day comment period, as a matter or relative comparison, is 

unreasonably short. Indeed, the 75 day comment period is less than 5% of the time DOL devoted to 

developing the Fiduciary Proposal. There is no apparent emergency necessitating such a short 

comment period. Given the significant time DOL has devoted to the Fiduciary Proposal, a short 

comment period extension of 60-90 days is very insubstantial, as a relative matter, concerning a 

rule that will have regulatory impacts for decades. 

DOL’s detailed 244 page Regulatory Impact Analysis is a fundamental element of the Fiduciary 

Proposal. Providing adequate time for interested parties to conduct the same level of analysis will 

fulfill the mandates of the Administrative Procedure Act (APA). The Regulatory Impact Analysis 

states that DOL “has adopted what it intends to be a balanced approach” weighing existing 

exemptive relief, commenters’ request for relief in 2010, and risks that adviser conflicts pose to 

consumers. The Regulatory Impact Analysis further explains that DOL “conducted and in-depth 

economic assessment of current market conditions and the likely effects of reform” and developed 

“supporting evidence” that includes “among other things, statistical analyses of conflicted

investment channels, experimental studies, government reports documenting abuse, and economic 

theory on the dangers posed by conflicts of interest.” The Regulatory Impact Analysis cites 

numerous outside reports and studies. All of this detailed and significant information merits careful 

review by interested parties that cannot be conducted within the 75 day comment period consonant 

with the protections under the APA. As the Guide to Federal Agency Rulemaking emphasizes, 

“informal rulemaking procedures should provide interested persons an opportunity to challenge the 

factual assumptions on which the agency is proceeding and to show in what respect such 

assumptions are erroneous.”7

A consistent line of Executive Orders mandate careful cost-benefit analysis in federal agency 

rulemaking.

8 Likewise, the APA, 5 U.S. Code Section 552, provides comprehensive standards 

 7 Guide at 182 and 196.

8 Executive Branch mandates for cost-benefit analysis began with Executive Order 12,291 (1981) that created 

a new procedure for the Office of Management and Budget (OMB) to review proposed agency regulations, 

and ensured the President greater control over agencies and improve the quality and consistency of agency 

rulemaking. The order unequivocally stated that “regulatory action shall not be undertaken unless the 

potential benefits to society for the regulation outweigh the potential costs to society.” 46 Fed. Reg. 13193, 

13193 (Feb. 17, 1981). In 1993, Executive Order 12,866 superseded the 1981 order, but retained cost-benefit 

analysis as a fundamental requirement in rulemaking. Executive Order 12,866 instructs that “in deciding 

whether and how to regulate, agencies should assess all costs and benefits of available regulatory 

alternatives, including the alternative of not regulating.” President Obama has reaffirmed the importance of 

cost-benefit analysis in 2011 through Executive Order 13,563, and reinforced the core principles in Executive 

Order 12,866 by emphasizing that “each agency must . . . propose or adopt a regulation only upon a 

reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult 

to quantify). Exec. Order 13,563, § 1(b), 76 Fed. Reg. 3821 (Jan. 18, 2011). See also, Helen G. Boutrous, 

Regulatory Review in the Obama Administration: Cost-Benefit Analysis for Everyone, 62 ADMIN. L. REV. 

243, 260 (2010).
ACLI Request for Comment Period Extension on DOL Fiduciary Proposal

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governing federal agency rulemaking, and includes guideposts for judicial review of agency 

rulemaking under an arbitrary and capricious threshold.9 In a trilogy of significant cases involving 

recent SEC rulemaking, the U.S. Court of Appeals for the D.C. Circuit overturned major initiatives 

due to cost-benefit issues and procedures, which the court viewed as arbitrary and capricious 

actions contrary to the mandate of the APA.10 An unnecessarily short comment period with thwart 

interested parties’ ability to fully review the proposal and the Regulatory Impact Analysis. The three 

rulings provide a template for measuring appropriate cost-benefit analysis and procedures in federal 

agency rulemaking, and provide a roadmap to avoiding litigation.11

In deference to these many legal and policy considerations, interested parties need more than 75 

days to meaningfully evaluate the Fiduciary Proposal and offer feedback to DOL. It makes sense, 

therefore, to elongate the proposal’s comment period for 60-90 days.

Conclusion 

Neither the APA12 nor the DOL’s administrative procedures establish a “standard” period of 

comment on rulemakings. Rather, the goal of robust public comment on administrative rulemakings 

is best served by selecting a time period based on the unique factors and complexity of the 

individual initiative, and not “routine” practices. Some proposals should properly have longer 

comment periods than others. 

In this instance, an extended comment period of 60-90 days will promote the most informed 

feedback given the size and diversity of ACLI’s membership, as well as the profound complexity 

and importance of the issues under examination. The depth and quality of comment are higher 

priorities than the speed of completing the project. 

ACLI has actively and constructively participated in numerous DOL rulemaking initiatives over many 

years. We will likewise devote substantial resources and time in developing policy positions and 

providing useful feedback that will be mutually beneficial. Our consensus-based process is neither 

dilatory nor obstructionist. Our request for a comment extension will allow the most useful input on 

this significant initiative. 

We fully understand DOL’s interest in resolving the important regulatory issues in the Fiduciary 

Proposal. While it is important to complete regulatory agendas, it is equally important to execute 

 9 As one tool in this process, the OMB provided federal agencies with extensive guidance to perform costbenefit analysis in its Circular A-4.21 C, which identifies three fundamental elements to federal agency 

rulemaking: (i) a statement of the need for the proposed regulation; (ii) discussion of alternative regulatory 

approaches; and, (iii) an analysis of both qualitative and quantitative costs and benefits of the proposed action 

and the leading alternatives. DOL’s 359 page Regulatory Impact Analysis attempts to fulfill these standards. 

By the same token, interested persons need a meaningful opportunity to review the detailed statement of 

need, alternative regulatory choices, qualitative and quantitative costs and benefits of the proposal and 

alternatives that cannot reasonably be executed in the short span of 75 days. Relatedly, the time period for 

public input on the OMB stage of review was also extremely short. An extended comment period can mitigate 

these administrative and procedural aspects of the proposal. 

10 See Chamber of Commerce v. SEC, 412 F.3d 133 (D.C. Cir. 2005), Am. Equity Inv. Life Ins. Co. v. SEC, 

613 F.3d 166 (D.C. Cir. 2010), and Bus. Roundtable & U.S. Chamber of Commerce v. SEC, 647 F.3d 1144 

(D.C. Cir. 2011).

11 See generally Peter M. Shane, Political Accountability in a System of Checks and Balances: The Case of 

Presidential Review of Rulemaking, 48 ARK. L. REV. 161, 176-78 (1994). 12 See Guide at 196.
ACLI Request for Comment Period Extension on DOL Fiduciary Proposal

5

rulemaking within a deliberative process allowing proper identification of issues and development of 

recommended solutions. 

For all of the reasons stated above, we respectfully request that the comment period be extended 

for 60-90 days after the July 6, 2015 comment deadline. We greatly appreciate your courtesy in 

evaluating our request. Please let me know if we can provide any additional background, or answer 

any questions that may develop.

Sincerely, 

/S/

Carl B. Wilkerson

cc: Phyllis C. Borzi, Assistant Secretary, Employee Benefits Security Administration, 

Department of Labor

Luisa Grillo-Chope, Office of Regulations and Interpretations, Employee Benefits Security 

Administration, Department of Labor

Fred Wong, Office of Regulations and Interpretations, Employee Benefits Security 

Administration, Department of Labor

Karen Lloyd, Office of Exemption Determinations, Employee Benefits Security 

Administration, Department of Labor

G. Christopher Cosby, Office of Policy and Research, Employee Benefits Security 

Administration, Department of Labor