To setup up a Safe Harbor 401(k) plan for 2012, the business must have their plan set up by October 1st by law.

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As a compromise, Congress could make the program optional, but give employers who adopt the principles safe harbor from employee lawsuits involving plan investment options.

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The plan also offers no "safe harbor" provision to shield mortgage servicers from lawsuits by investors holding the securities backed by a loan being modified.

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Most small business owners that start a 401(k) plan opt for a special design called a Safe Harbor 401(k).

FORBES: Why this is the year to start your small business 401(k) before the September deadline

Note: Fidelity's plan doesn't allow loans and uses special "safe harbor" rules that require you to contribute 3% of earnings and, in most cases, to open the account by Oct. 1.

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