Among the 38 FAQs included in Field Assistance Bulletin 2012-02, released by the Department of Labor (DOL) on May 7, 2012, to provide additional guidance on the final participant-level disclosure regulations under ERISA, the most controversial to date has proven to be FAQ 30. That FAQ was read by many to take positions on the obligation of a fiduciary to a participant-directed plan:
? To designate “a manageable number” of specific investment options among which participants might elect,
? To monitor for investments selected by “significant” numbers of participants through self-directed brokerage windows, and
? In some cases to treat, pursuant to a new safe harbor test, those “significant” investments selected through a brokerage window as “designated investment options” (DIA) for which investment-level disclosure was required under the new regulation that were inconsistent with the statute and with the regulation itself. That guidance also clouded the practical feasibility of including brokerage windows in ERISA plans.
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