On July 13, 2012, the DOL issued an amendment to the ERISA Section 408(b)(2) regulations that revises the mailing address and provides website submission procedures for the notice that a responsible plan fiduciary is responsible to file if the service provider does not comply with its notice obligations under the regulations. If the fiduciary does not properly file this notice with the DOL, it is considered to have engaged in a prohibited transaction under ERISA.

If the plan fiduciary sends the notice by direct mail, it should be sent to the following new DOL post office box address:

If the plan fiduciary sends the notice electronically, it should use the following dedicated website link on the DOL's website. This link also contains a sample failure notice that can be used as a model by the responsible plan fiduciary:

From a procedural perspective, attorneys should note that the DOL issued this amendment in both proposed and final form on the same day, given the technical nature of the guidance. This means that the amendment will become effective 60 days after publication in the Federal Register (as is normally the case with final rules) unless significant adverse comment is received within 30 days after publication in the Federal Register.

For a detailed discussion of the final ERISA Section 408(b)(2) regulations, review Practice Note, Service Provider Disclosure Requirements for Pension Plans. For a summary of the significant changes made from the interim final regulations to the final regulations, see Legal Update, DOL Issues Final ERISA Section 408(b)(2) Regulations.