Opportunity to Reset Timing of Annual Participant Fee Disclosures

In October 2010, the Department of Labor ("DOL") published final regulations under Section 404(a) of ERISA that require administrators of participant-directed individual account plans (e.g., 401(k) plans and other plans that allow participants to choose among investment alternatives) to annually provide information regarding the plan's designated investment alternatives ("DIAs") and the fees and expenses that are charged against participant accounts ("fee disclosure notices"). A summary of these fee disclosure notices is provided in our Management Alert dated July 26, 2011, a copy of which can be accessed here. Calendar year plans were required to provide the initial fee disclosure notices by August 30, 2012. After that, the final regulations require that participants, eligible employees and certain beneficiaries receive annual fee disclosure notices at least once in any 12-month period (i.e., by August 30, 2013 for calendar year plans).

On July 22, 2013, the DOL issued Field Assistance Bulletin No. 2013-02 (the "FAB"), which provides administrators with a one-time opportunity to reset the timing for the annual fee disclosure notices during an extended compliance period. The FAB extends the 12-month requirement specified under the final regulations for 2013 fee disclosure notices, and provides that administrators may send out 2013 fee disclosure notices no later than 18-months after the 2012 fee disclosure notices were actually distributed. For example, if a plan administrator distributed the initial fee disclosure notices on August 25, 2012, the 2013 fee disclosure notices would be due no later than February 25, 2014, instead of by August 25, 2013.

The FAB also provides that plan administrators who have already distributed or are in the process of distributing 2013 fee disclosure notices may take advantage of the one-time extension for the 2014 mailing. These plan administrators will have 18-months from the date that the 2013 fee disclosure notices were furnished to send out the 2014 fee disclosure notices. For example, if a plan administrator distributed the 2012 fee disclosure notices on February 15, 2012, and distributed the 2013 fee disclosure notices on February 15, 2013, the 2014 fee disclosure notices would be due by August 15, 2014, instead of by February 15, 2014.

Please note that plan administrators are still able to reset the deadline for the annual fee disclosure notices by furnishing two notices within the same 12-month period (e.g., a plan administrator who wants to send fee disclosure notices out in January could have furnished the first notice on August 25, 2012, a second notice in January 2013, and then notices at least annually thereafter in January).