Timing of initial disclosure requirements; changes

(A)

A covered service provider must disclose the information required to the responsible plan fiduciary reasonably in advance of the date the contract or arrangement is entered into, and extended or renewed, except that--

(1) When an investment contract, product, or entity is determined not to hold plan assets upon the covered plan's direct equity investment, but subsequently is determined to hold plan assets while the covered plan's investment continues, the information required must be disclosed as soon as practicable, but not later than 30 days from the date on which the covered service provider knows that such investment contract, product, or entity holds plan assets; and

(2) The information described in paragraph (c)(1)(iv)(F) of this section relating to any investment alternative that is not designated at the time the contract or arrangement is entered into must be disclosed as soon as practicable, but not later than the date the investment alternative is designated by the covered plan.

(B)

(1) A covered service provider must disclose a change as soon as practicable, but not later than 60 days from the date on which the covered service provider is informed of such change, unless such disclosure is precluded due to extraordinary circumstances beyond the covered service provider's control, in which case the information must be disclosed as soon as practicable.

(2) A covered service provider must, at least annually, disclose any changes to the information required.

What if the covered service provider fails to provide the information or fails to provide it on time?

Paragraph (c)(1)(ix)(B) of the regulation requires that, upon discovering that the covered service provider failed to disclose the required information,

(1) the responsible plan fiduciary must request in writing that the covered service provider furnish such information.

(2) If the covered service provider fails to comply with the responsible plan fiduciary's written request within 90 days, paragraph (c)(1)(ix)(C) requires that the responsible plan fiduciary notify the Department.

(3) If a service provider fails to provide the required information, the contract or arrangement between the plan and the service provider is prohibited by ERISA, and the responsible plan fiduciary will have engaged in a prohibited transaction. However, an exception (known as a class exemption) allows responsible plan fiduciaries who did not know that the service provider had failed to disclose some of the required information to avoid engaging in a prohibited transaction. To get this relief, certain conditions must be met. Among other things, the responsible plan fiduciary must request the missing information from the service provider in writing and, if that fails, notify EBSA within 30 days of certain events.

(4) If so, the plan fiduciary is responsible for recording that it requested the disclosure or requested further information.

(vi) Reporting and disclosure information; timing.

(A) Upon the written request of the responsible plan fiduciary or covered plan administrator, the covered service provider must furnish any other information relating to the compensation received in connection with the contract or arrangement that is required for the covered plan to comply with the reporting and disclosure requirements of Title I of the Act and the regulations, forms and schedules issued thereunder.

(B) The covered service provider must disclose the information required by paragraph (c)(1)(vi)(A) of this section reasonably in advance of the date upon which such responsible plan fiduciary or covered plan administrator states that it must comply with the applicable reporting or disclosure requirement, unless such disclosure is precluded due to extraordinary circumstances beyond the covered service provider's control, in which case the information must be disclosed as soon as practicable.