On July 22, 2013, the DOL announced a temporary enforcement policy that provides the administrators of individual account retirement plans such as 40 (k) or 403(b) plans some additional flexibility regarding when they have to provide plan participants and beneficiaries the annual comparative chart of investment alternatives. Last year, plans had to provide for the first time no later than August 30, 2012 (for calendar year plans), the detailed investment related information to plan participants and beneficiaries about the plan’s designated investment alternatives in chart form. Under DOL rules, an updated comparative chart has to be provided at least annually, which means once in any 12-month period. For example, if a plan administrator furnished the first required chart on August 25, 2012, it must furnish the next comparative chart no later than August 25, 2013. A number of plan administrators commented to the DOL that the mid-August original deadline was not tied to any meaningful date or timing but rather was just 60 days from the date by which plan service providers had to send plan fiduciaries their ERISA Section 408(b)(2) disclosure of compensation, fees, services and conflicts. They also commented that the requirement to provide the next annual comparative chart did not coincide with any other notices and would be more likely to attract the attention of participants and beneficiaries if it was provided at the same time as other disclosures, such as with individual benefit statements or during open enrollment for the plan rather than within 12 months of the original notice.

Temporary Enforcement Policy -

With this in mind, the DOL announced in Field Assistance Bulletin 2013-02 that it would allow a plan administrator to distribute the “2013 comparative chart” within 18 months of when it distributed the original comparative chart. For this purpose, a “2013 comparative chart” is the comparative chart that is due at least annually after the first comparative chart was furnished in compliance with the regulations. For example, if a plan administrator furnished the first comparative chart on August 25, 2012, the 2013 comparative chart would originally have been due no later than August 25, 2013. In accordance with the Bulletin, the DOL will take no enforcement action based on timeliness if the plan administrator furnishes the 2013 comparative chart by February 25, 2014 (18 months from August 25, 2012). This allows a plan administrator to reset the annual date by which it will have to send future comparative charts to a date that makes more sense for participants and for plan administration.