On July 22, 2013, the U.S. Department of Labor, Employee Benefits Security Administration (EBSA) issued Field Assistance Bulletin No. 2013-02 (the “FAB”). In the FAB, the EBSA announced a temporary policy in which it would not take any enforcement action against a retirement plan sponsor which fails to provide the required participant fee disclosures under Labor Regulations § 29 CFR § 2550.404a-5 within the 12-month period (the “annual disclosure requirement”), so long as the comparative chart and disclosures are provided within 18 months after the last comparative chart was provided. The deadline for the first required disclosures was August 30, 2012, so a plan sponsor which had provided the first disclosures on August 25, 2012, for example, would be deemed to be in compliance if they provide the 2013 Comparative Chart on or before February 25, 2014. For those plan sponsors which have already met the 12 month disclosure requirement for 2013, they are allowed to furnish the 2014 comparative chart within 18 months from the date the 2013 chart was furnished.
The EBSA states in the FAB that it is re-evaluating these disclosure regulations and is “considering whether to revise the regulation’s timing requirement to provide reasonable flexibility to plan administrators on a permanent basis.” The EBSA also clarified that employers could do a “reset” of the twelve month report deadline by moving the disclosure date to January or some other month, acknowledging that to do so, the employer would need to do two disclosures within the year of the reset. This temporary policy allows a one-time reset without incurring the cost of two mailings in one year.
If you have any questions concerning the annual fiduciary fee disclosures under ERISA § 408 or the annual participant fee disclosures under ERISA § 404, you can contact any of our bloggers.