DOL Clarifies Interim E-Disclosure Policy Under Participant Fee Disclosure Regulation

[25703]

December 9, 2011

TO: PENSION MEMBERS No. 65-11
OPERATIONS MEMBERS No. 24-11
BANK, TRUST AND RETIREMENT ADVISORY COMMITTEE No. 78-11
TRANSFER AGENT ADVISORY COMMITTEE No. 103-11 RE: DOL CLARIFIES INTERIM E-DISCLOSURE POLICY UNDER PARTICIPANT FEE DISCLOSURE REGULATION

 

On December 8, the Department of Labor published Technical Release No. 2011-03R [1], Revised Interim Policy on Electronic Disclosure Under 29 CFR 2550.404a-5 to revise and restate Technical Release 2011-03 (published on September 13, 2011), which set out interim electronic delivery rules for providing investment and fee information to participants under new rule 404a-5. [2]  The original Technical Release rejected the approach urged by the Institute [3] and others of extending to the participant fee disclosure rule all of the e-delivery options allowed for benefit statements in Field Assistance Bulletin 2006-03. [4]  Similarly, the Revised Release rejects this approach.

The Revised Release is identical to the original Technical Release except for two clarifications: (1) continuous access websites are permissible if the plan administrator complies with the conditions in the Revised Release (that is, if a plan goes through the steps in the Revised Release to provide 404a-5 information to a particular participant electronically, it can deliver the information through a continuous access website); and (2) investment-related information – i.e., information to be provided in a comparative format – may be furnished as part of, or along with, a pension benefit statement, either electronically in accordance with the prescribed conditions of the Revised Release or in paper form under the Department’s existing standard rule on fulfilling ERISA disclosure obligations.  The language of the Revised Release appears to mean that if a comparative chart is included with benefit statement information, then the plan must either use the Revised Release e-delivery conditions or the standard rule to deliver the comparative chart, but not the FAB 2006-03 negative consent process. 

 

Anna Driggs
Associate Counsel

endnotes

 [1] A copy of Technical Release No. 2011-03R is available at http://www.dol.gov/ebsa/newsroom/tr11-03r.html.

 [2] See Memorandum to Pension Members No. 52-11, Operations Members No. 22-11, Bank, Trust and Retirement Advisory Committee No. 55-11, Transfer Agent Advisory Committee No. 78-11 [25494], dated September 16, 2011. 

 [3] See Memorandum to Pension Members No. 29-11 [26262], dated June 8, 2011.

 [4] See Memorandum to Pension Members No. 75-06 [20718], dated December 21, 2006.