Federal Register / Vol. 76, No. 67 / Thursday, April 7, 2011 / Proposed Rules 19285 

1 42 FR 37186. 

2 67 FR 17264. 

3The Census information may be found at 

http://www.census.gov/population/www/socdemo/ 

computer.html. 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

29 CFR Part 2520 

RIN 1210–AB50 

Request for Information Regarding 

Electronic Disclosure by Employee 

Benefit Plans 

AGENCY: Employee Benefits Security 

Administration, Department of Labor. 

ACTION: Request for information. 

SUMMARY: The Department of Labor is 

reviewing the use of electronic media by 

employee benefit plans to furnish 

information to participants and 

beneficiaries covered by employee 

benefit plans subject to the Employee 

Retirement Income Security Act 

(ERISA). In 2002, the Department 

adopted standards for the electronic 

distribution of plan disclosures required 

under ERISA. The purpose of the review 

is to explore whether, and possibly how, 

to expand or modify these standards 

taking into account current technology, 

best practices and the need to protect 

the rights and interests of participants 

and beneficiaries. This request for 

information (RFI) solicits views, 

suggestions, and comments from plan 

participants and beneficiaries, 

employers and other plan sponsors, 

plan administrators, plan service 

providers, health insurance issuers, and 

members of the financial community, as 

well as the general public, on this 

important issue. 

DATES: Comments must be submitted on 

or before June 6, 2011. 

ADDRESSES: You may submit written 

comments to any of the addresses 

specified below. 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: e-ORI@dol.gov. Include RIN 

1210–AB50 in the subject line of the 

message. 

• Mail: Office of Regulations and 

Interpretations, Employee Benefits 

Security Administration, Room N–5655, 

U.S. Department of Labor, 200 

Constitution Avenue, NW., Washington, 

DC 20210, Attention: E-Disclosure RFI. 

All submissions received must include 

the agency name and Regulation 

Identifier Number (RIN) for this 

rulemaking. Comments received will be 

posted without change to http:// 

www.regulations.gov and http:// 

www.dol.gov/ebsa, and made available 

for public inspection at the Public 

Disclosure Room, N–1513, Employee 

Benefits Security Administration, 200 

Constitution Avenue, NW., Washington, 

DC 20210, including any personal 

information provided. Do not include 

any personally identifiable information 

(such as name, address, or other contact 

information) or confidential business 

information that you do not want 

publicly disclosed. Comments posted on 

the Internet can be retrieved by most 

Internet search engines. Comments may 

be submitted anonymously. Persons 

submitting comments electronically are 

encouraged not to submit paper copies. 

All comments will be made available to 

the public. 

FOR FURTHER INFORMATION CONTACT: 

Thomas M. Hindmarch, Office of 

Regulations and Interpretations, 

Employee Benefits Security 

Administration, (202) 693–8500. This is 

not a toll-free number. 

SUPPLEMENTARY INFORMATION: 

A. Background 

On July 19, 1977, the Department of 

Labor (Department) adopted general 

standards governing the delivery of all 

information required to be furnished to 

participants, beneficiaries, and 

other specified individuals under title I 

of ERISA.1 See 29 CFR 2520.104b–1. 

These standards require that plan 

administrators use delivery methods 

reasonably calculated to ensure actual 

receipt of such information by plan 

participants, beneficiaries and other 

specified individuals. See § 2520.104b– 

1(b)(1). For example, in-hand delivery to 

an employee at his or her worksite is 

acceptable, as is material sent by firstclass mail. On April 9, 2002, the 

Department amended § 2520.104b–1 to 

establish a ‘‘safe harbor’’ for the use of 

electronic media to satisfy the general 

furnishing requirement in § 2520.104b– 

1(b). See § 2520.104b–1(c).2 The specific 

requirements of the safe harbor are 

discussed below. 

On January 18, 2011 the President 

issued Executive Order 13563, 

‘‘Improving Regulation and Regulatory 

Review.’’ Executive Order 13563 

reaffirms the importance of achieving 

regulatory goals through the most 

innovative and least burdensome tools 

available. It also emphasizes the 

importance of public participation in 

the regulatory process (in section 2) and 

retrospective consideration of existing 

regulatory policies (in section 6). 

In light of these goals, and in 

consideration of Administration-wide 

policies encouraging electronic 

dissemination of information to the 

public by federal government agencies 

consistent with the principles of 

transparency, participation, and 

collaboration, EBSA is issuing this RFI 

to facilitate consideration of its 

approach to electronic disclosure by 

employee benefit plans. The Department 

is aware that electronic disclosure can 

be as effective as paper based 

communications, and that it can lower 

costs and administrative burdens and 

increase timeliness and accuracy for all 

involved. The Department also is aware 

that some of America’s workers may not 

have reasonable access to the Internet, 

and others may prefer traditional 

(paper) disclosure methods for 

important financial interactions 

regarding their pensions and other 

employee benefits. 

The Department recognizes that there 

have been substantial changes in 

technology since over time, both in the 

workplace and at home, including: The 

expansion of broadband through cable, 

fiber optic and wireless networks; 

hardware improvements to servers and 

personal computers improving storage, 

memory, recovery, and computing 

power; introduction of smart phones, 

net books and other personal computing 

devices; and social networking (e.g., 

LinkedIn, Facebook, and Twitter). 

At least some evidence suggests that 

these changes have resulted in a 

substantial increase in access to and 

utilization of electronic media. For 

instance, the 2009 U.S. Census Bureau 

Current Population Survey (Census) 

found that 76.7% of the households in 

the United States have access to the 

Internet from some location.3 The 

Census data further shows that of the 

139.1 million private sector workers 

approximately 111.7 million have 

access to the Internet from some 

location. Of the remaining 27.4 million 

workers who do not have personal 

access, approximately 10.6 million 

reside in a household where someone 

else has Internet access. 

Over the past few years, the 

Department has engaged in various 

rulemakings and other initiatives 

involving disclosures to participants 

and beneficiaries. Examples include the 

qualified default investment alternative 

regulation (29 CFR 2550.404c–5), the 

participant-level fee disclosure 

regulation (29 CFR 2550.404a–5, 75 FR 

64910), the pension benefit statement 

initiative (FAB 2006–03), the annual 

funding notice regulation (29 CFR 

2520.101–4; FAB 2009–01; proposed 

§ 2520.101–5, 75 FR 70625), and the 

target date fund initiative (75 FR 73987). 


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4 68 FR 17277. 

Increasingly, commenters on these 

initiatives request that the Department 

take recognition of changes in 

technology, as other federal regulatory 

agencies have, and revisit, update, and 

modernize the electronic disclosure safe 

harbor to promote electronic disclosure 

of employee benefit plan information to 

the greatest extent possible. They argue 

that such forms of disclosure would be 

more efficient, less burdensome, and 

less costly than paper for plans and, 

therefore, participants. Not everyone, 

however, agrees that electronic 

disclosure is appropriate for all 

participants and beneficiaries or for all 

disclosures. Some caution against 

broadening the electronic disclosure 

safe harbor, arguing that some workers 

do not have reasonable Internet access, 

or that they simply prefer paper over 

electronically disclosed materials even 

when they have access. 

In light of these differing views and 

the significance of the issues 

surrounding the use of electronic 

disclosure, the Department has decided 

to explore whether and how to expand 

or modify the current standards under 

ERISA applicable to the electronic 

distribution of required plan 

disclosures. To that end, the 

Department, through this RFI, is 

soliciting the views of the public on this 

important issue. Set forth below are a 

list of questions. 

In considering the questions set forth 

in this RFI, commenters are encouraged 

to take into account the following 

information: 

Electronic Disclosure Under ERISA 

As noted above, on April 9, 2002, the 

Department established its electronic 

disclosure safe harbor. See § 2520.104b– 

1(c). As a safe harbor, § 2520.104b–1(c) 

is not the exclusive means for using 

electronic media to satisfy the 

requirements of § 2520.104b–1(b)(1). 

Plan administrators may find that other 

procedures will allow them to meet the 

general delivery requirements of 

§ 2520.104b–1. However, following the 

conditions of the safe harbor provides 

assurance that the general delivery 

requirements under § 2520.104b–1(b)(1) 

have been satisfied. 

The safe harbor is available only if: (1) 

The plan administrator takes 

appropriate and necessary measures 

reasonably calculated to ensure that the 

system for furnishing documents results 

in actual receipt of transmitted 

information and protects the 

confidentiality of personal information 

relating to the individual’s accounts and 

benefits; (2) the electronically delivered 

documents are prepared and furnished 

in a manner that is consistent with the 

style, format and content requirements 

applicable to the particular document; 

(3) notice is provided to each 

participant, beneficiary or other 

individual, in electronic or nonelectronic form, at the time a document 

is furnished electronically, that apprises 

the individual of the significance of the 

document when it is not otherwise 

reasonably evident as transmitted and of 

the right to request and obtain a paper 

version of such document; and (4) upon 

request, the participant, beneficiary or 

other individual is furnished a paper 

version of the electronically furnished 

documents. § 2520.104b–1(c)(1)(i) 

through (iv). 

The safe harbor applies only for two 

categories of individual recipients. The 

first category consists of participants 

who have the ability to effectively 

access documents furnished in 

electronic form at any location where 

the participant is reasonably expected to 

perform his or her duties as an 

employee and with respect to whom 

access to the employer’s or plan 

sponsor’s electronic information system 

is an integral part of those duties. See 

§ 2520.104b–1(c)(2)(i). The second 

category consists of participants, 

beneficiaries and other persons who are 

entitled to documents under title I of 

ERISA, but who do not fit into the first 

category. For this category, the safe 

harbor assumes the utilization of 

electronic information systems beyond 

the control of the plan or plan sponsor. 

The current safe harbor, therefore, 

provides that the second category of 

individuals must affirmatively consent 

to receive documents electronically. See 

§ 2520.104b–1(c)(2)(ii)(A). The safe 

harbor relief is not available with 

respect to these individuals in the 

absence of such consent. 

In general, the affirmative consent 

condition requires plans to ensure that 

an individual has affirmatively 

consented, in electronic or nonelectronic form, to receiving documents 

through electronic media and has not 

withdrawn such consent. Alternatively, 

in the case of documents to be furnished 

through the Internet or through other 

electronic communication networks, the 

individual must have affirmatively 

consented or confirmed consent 

electronically, in a manner that 

reasonably demonstrates the 

individual’s ability to access 

information in the electronic form that 

will be used to provide the information 

that is the subject of the consent, and 

must have provided an address for the 

receipt of electronically furnished 

documents. In addition, prior to 

consenting, the individual must be 

provided, in electronic or non-electronic 

form, a clear and conspicuous statement 

indicating: (1) The types of documents 

to which the consent would apply; (2) 

that consent can be withdrawn at any 

time without charge; (3) the procedures 

for withdrawing consent and for 

updating the participant’s, beneficiary’s 

or other individual’s address for receipt 

of electronically furnished documents 

or other information; (4) the right to 

request and obtain a paper version of an 

electronically furnished document, 

including whether the paper version 

will be provided free of charge; and (5) 

any hardware and software 

requirements for accessing and retaining 

the documents. Further, following 

consent, if a change in such hardware or 

software requirements creates a material 

risk that the individual will be unable 

to access or retain electronically 

furnished documents, the individual: (1) 

Is provided with a statement of the 

revised hardware or software 

requirements for access to and retention 

of electronically furnished documents; 

(2) is given the right to withdraw 

consent without charge and without the 

imposition of any condition or 

consequence that was not disclosed at 

the time of the initial consent; and (3) 

again consents in accordance with the 

requirements above. See § 2520.104b– 

1(c)(2)(ii). 

Electronic Disclosure Under the Internal 

Revenue Code 

The Department of Treasury and the 

Internal Revenue Service (IRS) have 

issued guidance relating to the use of 

electronic media of notices or elections 

with respect to a retirement plan. In 

2000, final regulations were issued 

relating to the use of electronic media 

for the delivery of certain participant 

notices and consents that are required to 

be provided in connection with 

distributions from retirement plans. 

In 2003, the Department of Treasury 

and IRS published final regulations 

under section 4980F under the Internal 

Revenue Code (Code) that also apply for 

purposes of section 204(h) of ERISA 

(2003 section 4980F regulations).4

Under Q&A–13(c) of § 54.4980F–1, 

notice required under section 4980F of 

the Code or section 204(h) of ERISA 

(section 204(h) notice) may be provided 

electronically if certain requirements are 

satisfied. The section 204(h) notice must 

actually be received by the applicable 

individual or the plan administrator 

must take appropriate and necessary 

measures reasonably calculated to 

ensure that the method for providing the 

section 204(h) notice results in actual 

receipt of the notice. In addition, the 


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5The 2003 section 4980F regulations were issued 

under amendments to the Code and ERISA 

contained in the Economic Growth and Tax Relief 

Reconciliation Act of 2001 (EGTRRA), which was 

enacted after enactment of ESIGN. The EGTRRA 

amendments, at section 4980F(g) of the Code and 

section 204(h)(7) of ERISA, authorize regulations 

allowing section 204(h) notice to be provided using 

new technologies. 

6 71 FR 61877. 

7Section 1.401(a)–21(e) defines an applicable 

notice as any notice, report, statement, or other 

document required to be provided to a recipient 

under a retirement plan, employee benefit 

arrangement, or individual retirement plan. Section 

1.401(a)–21(a)(3) provides that § 1.401(a)–21 does 

not apply to any notice, election, consent, 

disclosure, or other obligation over which the 

Department of Labor or the Pension Benefit 

Guaranty Corporation (PBGC) has interpretive 

authority under Title I or IV of ERISA or to any 

provision of the Internal Revenue Code over which 

the Labor Department or PBGC has interpretive 

authority. 

8 72 FR 4148 and 72 FR 42221. 

9 74 FR 4546. 

10 60 FR 53458, 61 FR 24644, 65 FR 25843, and 

73 FR 45862. 

plan administrator must provide the 

applicable individual with a clear and 

conspicuous statement that the 

individual has a right to receive a paper 

version of the section 204(h) notice 

without the imposition of fees and, if 

the individual requests a paper copy of 

the section 204(h) notice, the paper 

copy must be provided without charge. 

The 2003 section 4980F regulations also 

provide a safe harbor method at 26 CFR 

54.4980F–1, Q&A–13(c)(3), for 

delivering a section 204(h) notice 

electronically, which is substantially the 

same as the consumer consent rules of 

E–SIGN (described below under the 

heading ‘‘Electronic Signatures in Global 

and National Commerce Act’’).5

On October 20, 2006, the Department 

of Treasury and IRS published final 

regulations under the Code setting forth 

standards for electronic systems that 

make use of an electronic medium to 

provide a notice to a recipient, or to 

make a participant election or consent, 

generally with respect to a retirement 

plan, an employee benefit arrangement, 

or an individual retirement plan.6 These 

regulations provide two methods by 

which such plans or arrangements are 

permitted to provide an applicable 

notice 7 to a recipient through the use of 

an electronic medium. Under the first 

method, an applicable notice is 

permitted to be provided electronically 

after the recipient consents to the 

electronic delivery of the notice 

(consumer consent method). The 

consumer consent method reflects the 

consumer consent requirements in E– 

SIGN. The second method does not 

require consent by the recipient, but 

when the applicable notice is provided, 

the recipient must be advised that he or 

she may request and receive the 

applicable notice in writing at no charge 

(alternative method). In addition, any 

recipient of the notice must be 

‘‘effectively able’’ to access the electronic 

medium used to provide the notice. See 

generally 26 CFR 1.401(a)–21(b) and (c). 

These regulations also modified the 

2003 section 4980F regulations to 

require that a section 204(h) notice 

comply with the regulations under 

§ 1.401(a)–21. The current section 4980F 

regulations retain the requirement in the 

2003 section 4980F regulations that the 

section 204(h) notice actually be 

received by the applicable individual or 

that the plan administrator take 

appropriate and necessary measures 

reasonably calculated to ensure that the 

method for providing the section 204(h) 

notice results in actual receipt. See 26 

CFR 54.4980F–1, Q&A–13(c)(1). 

Electronic Disclosure of Proxy Materials 

and Prospectuses Under Securities Law 

In 2007, the Securities and Exchange 

Commission (SEC) amended its rules 

under the Securities Exchange Act of 

1934 to provide a method to furnish 

proxy materials by posting them on an 

Internet Web site and providing 

shareholders with notice of the 

availability of the proxy materials.8 In 

2009, the SEC adopted amendments 

permitting a person to satisfy its mutual 

fund prospectus delivery obligations 

under the Securities Act of 1933 by 

sending or giving investors a summary 

prospectus and providing the statutory 

prospectus on an Internet Web site.9

Under both rules, copies of the 

documents must be sent at no charge to 

shareholders requesting such copies. 

See 17 CFR 240.14a–16; 17 CFR 

230.498. The SEC has also previously 

provided interpretive guidance on the 

use of electronic media to deliver 

information under the federal securities 

law.10

2006 ERISA Advisory Council Working 

Group Report on Prudent Investment 

Process 

On August 9, 2006, and September 21, 

2006, a working group of the ERISA 

Advisory Council held a hearing on 

numerous issues pertaining to the 

management of plan assets, including 

the use of electronic media for 

disclosures required by regulations 

under section 404(c) of ERISA. Thirteen 

witnesses testified at this hearing. In 

response to this hearing, the working 

group issued the ‘‘Report of the Working 

Group on Prudent Investment Process.’’ 

With respect to the Department’s 

electronic disclosure safe harbor as 

applied to defined contribution pension 

plans, the Report states: 

The Working Group would like to 

recommend to the Department of Labor that 

the Department should reconsider its rules 

for electronic transfer of notices and the 

delivery of ‘sufficient information.’ The 

Working Group heard extensive testimony 

regarding the growth of the internet and its 

use by plan participants. Access to and use 

of the internet has grown significantly since 

the DOL first considered electronic delivery. 

The Working Group recommends that the 

electronic delivery standard should be 

relaxed from the ‘integral part of the 

employee’s duties’ standard currently 

employed to a ‘reasonable access’ standard. 

This Report can be accessed at 

http://www.dol.gov/ebsa/publications/ 

AC_1106A_report.html. 

2007 ERISA Advisory Council Working 

Group Report on Participant Benefit 

Statements 

On July 12, 2007 and September 18, 

2007, a working group of the ERISA 

Advisory Council held a public hearing 

on the pension benefit statement 

requirements under section 105 of 

ERISA, as amended by section 508 of 

the Pension Protection Act of 2006, 

Public Law 109–280, 120 Stat. 949–952. 

Thirteen witnesses testified at this 

hearing. In response to this hearing, the 

working group issued the ‘‘Report of the 

Working Group on Participant Benefit 

Statements.’’ In this Report, the Working 

Group recommended that ‘‘the 

Department of Labor should update its 

regulations regarding electronic 

communication to a ‘reasonable access’ 

standard as in the Department of 

Treasury safe harbor regulation in 

recognition of the continued 

advancement in Web-based 

communication and the increase in its 

use by participants.’’ In support of this 

recommendation, the Report explains: 

Following an animated discussion, the 

Working Group came to a consensus that 

although the American workforce is 

becoming more computer literate, it is not yet 

appropriate to make electronic delivery of 

participant statements the norm. In addition 

to access and ability to use issues, many 

participants who are computer literate are 

better served with paper when managing 

their plan asset. However, the Treasury rules 

regarding communication provide incentive 

for plan sponsors to migrate to electronic 

delivery. In any event, the new regulations 

should reexamine the use of electronic 

communication for benefit statements to 

recognize the changes in technology and the 

participant group’s use of it. 

This Report can be accessed at http:// 

www.dol.gov/ebsa/publications/AC1107c.html. 


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11The rules of section 101 of E–SIGN do not 

apply to certain consumer notices. These include 

consumer notices that are necessary for the 

protection of a consumer’s health, safety, or shelter 

(e.g., cancellation of health benefits or life 

insurance and foreclosure on a credit agreement 

secured by an individual’s primary residence). See 

section 103(b)(2)(B) and (C) of E–SIGN. 

12Section 106(1) of E–SIGN generally defines a 

consumer as an individual who obtains products or 

services used primarily for personal, family, or 

household purposes. 

2009 ERISA Advisory Council Report on 

Promoting Retirement Literacy and 

Security by Streamlining Disclosures 

On July 23, 2009 and September 15, 

2009, the ERISA Advisory Council, in 

furtherance of its focus on the issue of 

promoting retirement literacy and 

security by streamlining disclosures to 

participants and beneficiaries, held a 

public hearing to study the efficacy of 

ERISA’s reporting and disclosure 

schemes, as well as problems and costs 

related to such disclosures. 

Approximately 18 witnesses testified at 

this hearing. Upon conclusion of the 

hearing, the full ERISA Advisory 

Council reached consensus and issued a 

report entitled ‘‘Promoting Retirement 

Literacy and Security by Streamlining 

Disclosures.’’ In this Report, the Council 

recommended that: 

[T]he Department of Labor permits plan 

administrators to rely on the IRS Regulations 

in order to comply with ERISA’s disclosure 

requirements. The Council believes that the 

IRS Regulations will adequately protect the 

rights of those participants who are actively 

employed because it will generally be very 

simple for administrators to determine 

whether active employees have reasonable 

access to the electronic medium used to 

furnish the disclosure. The Council believes 

that administrators will not furnish those 

individuals who are not working actively— 

such as retirees or beneficiaries—with 

electronic disclosure unless the administrator 

has a working electronic mail address for 

such individuals. In that way, participants 

who are not actively employed and plan 

beneficiaries will be protected. 

In support of this recommendation, the 

Report explains: 

Electronic communications have 

enormously improved the retirement system 

for both plans covered by ERISA and their 

participants. They have improved participant 

education, retirement planning, and plan 

participation. Electronic communications 

have allowed plans to furnish more 

information to participants and beneficiaries 

for less cost. They have simplified plan 

administration and improved plan 

recordkeeping. All of these benefits of 

electronic communication have improved 

retirement security, which was and remains 

an underlying goal of ERISA. The Council 

believes that this goal of retirement security 

would be better served if the DOL would 

expand the array of electronic media that 

plan administrators may use to satisfy 

ERISA’s disclosure requirements. 

The Report can be reviewed at http:// 

www.dol.gov/ebsa/publications/ 

2009ACreport2.html. 

Electronic Signatures in Global and 

National Commerce Act 

The Electronic Signatures in Global 

and National Commerce Act (E–SIGN), 

17 U.S.C. 7001–7021, generally provides 

that electronic records and signatures 

have the same legal effect as their paper 

counterparts.11 When a statute, 

regulation, or other rule of law requires 

that information relating to a transaction 

be provided or made available to a 

consumer 12 in writing, section 101(c) of 

E–SIGN requires that the consumer 

must first affirmatively consent to 

receive the information electronically in 

a manner that reasonably demonstrates 

the consumer’s ability to access the 

information in electronic form. 17 

U.S.C. 7001(c). However, section 

104(d)(1) of E–SIGN, 17 U.S.C. 

7004(d)(1), authorizes a Federal 

regulatory agency to exempt, without 

condition, a specified category or type 

of record from the consumer consent 

requirements in section 101(c). The 

agency may issue an exemption only if 

it is necessary to eliminate a substantial 

burden on electronic commerce and will 

not increase the material risk of harm to 

consumers. 

B. Request for Information 

The purpose of this RFI is to solicit 

views, suggestions and comments from 

plan participants and beneficiaries, 

employers and other plan sponsors, 

plan administrators, plan service 

providers, health insurance issuers, and 

members of the financial community, as 

well as the general public on whether, 

and possibly how, to expand or modify 

the Department’s current electronic 

disclosure safe harbor. To facilitate 

consideration of the issues, the 

Department has set forth below a 

number of questions. Respondents need 

not answer every question, but should 

identify, by its number, each question 

addressed. Interested persons are also 

encouraged to address any other matters 

they believe germane to the general 

topic of the RFI. 

Access and Usage Questions 

1. What percentage of people in this 

country has access to the Internet at 

work or home? Of this percentage, what 

percentage has access at work versus at 

home? Does access vary by demographic 

groups (e.g., age, socioeconomic, race, 

national origin, etc.)? 

2. What percentage of participants 

and beneficiaries covered by an ERISA 

plan has access to the Internet at work 

or home? Of this percentage, what 

percentage has access at work, at home, 

or both? Does access vary by 

demographic groups (e.g., age, 

socioeconomic, race, national origin, 

etc.)? What percentage of participants 

and beneficiaries uses the Internet to 

access private information such as 

personal bank accounts? 

3. What percentage of pension benefit 

plans covered by ERISA currently 

furnish some or all disclosures required 

by ERISA electronically to some or all 

participants and beneficiaries covered 

under these plans? Please be specific 

regarding types of plans (e.g., singleemployer plans versus multiemployer 

plans, defined benefit pension plans 

versus defined contribution pension 

plans, etc.), types of participants and 

beneficiaries (e.g., active, retired, 

deferred vested participants) and types 

of disclosures (e.g., all required title I 

disclosures versus select disclosures). 

4. What percentage of employee 

welfare benefit plans covered by ERISA 

currently furnish some or all disclosures 

required by ERISA electronically to 

some or all participants and 

beneficiaries covered under these plans? 

Please be specific regarding types of 

welfare plans (e.g., health, disability, 

etc.), types of participants and 

beneficiaries (e.g., active employees, 

retirees, COBRA Qualified Beneficiaries, 

etc.) and types of disclosures (e.g., all 

required title I disclosures versus select 

disclosures). 

5. What are the most common 

methods of furnishing information 

electronically (e.g., e-mail with 

attachments, continuous access Web 

site, etc.)? 

6. What are the most significant 

impediments to increasing the use of 

electronic media (e.g., regulatory 

impediments, lack of interest by 

participants, lack of interest by plan 

sponsors, access issues, technological 

illiteracy, privacy concerns, etc.)? What 

steps can be taken by employers, and 

others, to overcome these impediments? 

7. Is there evidence to suggest that any 

increase in participant and beneficiary 

access to, and usage of, the Internet and 

similar electronic media in general 

equates to an increased desire or 

willingness on the part of those 

participants and beneficiaries to receive 

employee benefit plan information 

electronically? If so, what is it? 

8. Are there any new or evolving 

technologies that might impact 

electronic disclosure in the foreseeable 

future? 


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General Questions 

9. Should the Department’s current 

electronic disclosure safe harbor be 

revised? If so, why? If not, why not? 

10. If the safe harbor should be 

revised, how should it be revised? 

Please be specific. 

11. Should a revised safe harbor have 

different rules or conditions for different 

types of employee benefit plans (e.g., 

pension versus welfare plans)? If so, 

why and what differences? 

12. Should a revised safe harbor have 

different rules or conditions for different 

types of disclosures (e.g., annual 

funding notice, quarterly benefit 

statement, COBRA election notice, etc.)? 

If so, why and what differences? 

13. Should a revised safe harbor have 

different rules or conditions for different 

recipients entitled to disclosures (active 

employees, retirees, COBRA Qualified 

Beneficiaries, etc.)? If yes, why, and 

how should the rules or conditions 

differ? 

14. To what extent should the 

Department encourage or require 

pension and welfare benefit plans to 

furnish some or all disclosures required 

under title I of ERISA through a 

continuous access Web site(s)? In 

responding to this question, please 

address whether and how frequently 

participants and beneficiaries should be 

notified of their ability to access benefit 

information at the Web site(s) and the 

most appropriate means to provide such 

notice. For example, should participants 

and beneficiaries receive a monthly 

notification of their ability to access 

benefit information or should they 

receive a notification only when an 

ERISA-required disclosure is added to 

the Web site? How should such 

notifications be furnished (e.g., paper, email, etc.)? Please also address what 

steps would be needed to ensure that 

participants and beneficiaries 

understand how to request and receive 

paper copies of the disclosures provided 

on the Web site(s). 

15. Who, as between plan sponsors 

and participants, should decide whether 

disclosures are furnished electronically? 

For example, should participants have 

to opt into or out of electronic 

disclosures? See Question 26. 

16. Should a revised safe harbor 

contain conditions to ensure that 

individuals with disabilities are able to 

access disclosures made through 

electronic media, such as via 

continuous access Web sites? If so, 

please describe the conditions that 

would be needed. Also, please identify 

whether such conditions would impose 

any undue burdens on employee benefit 

plans, including the costs associated 

with meeting any such conditions. What 

burden and difficulty would be placed 

on employees with disabilities if the 

Web sites and/or other electronic 

communication were not accessible? 

Technical Questions 

17. If a plan furnishes disclosures 

through electronic media, under what 

circumstances should participants and 

beneficiaries have a right to opt out and 

receive only paper disclosures? 

18. The Department’s current 

regulation has provisions pertaining to 

hardware and software requirements for 

accessing and retaining electronically 

furnished information. In light of 

changes in technology, are these 

provisions adequate to ensure that 

participants and beneficiaries, 

especially former employees with rights 

to benefits under the plan, have 

compatible hardware and software for 

receiving the documents distributed to 

their non-work e-mail accounts? 

19. Some have indicated that the 

affirmative consent requirement in the 

Department’s current electronic 

disclosure safe harbor is an impediment 

to plans that otherwise would elect to 

use electronic media. How specifically 

is this requirement an impediment? 

Should this requirement be eliminated? 

Is the affirmative consent requirement a 

substantial burden on electronic 

commerce? If yes, how? Would 

eliminating the requirement increase a 

material risk of harm to participants and 

beneficiaries? If yes, how? See section 

104(d)(1) of E–SIGN. 

20. In general, the E–SIGN Act 

permits electronic disclosure of health 

plan materials but does not apply to 

cancellation or termination of health 

insurance or benefits electronically. Are 

there special considerations the 

Department should take into account for 

group health plan disclosures (including 

termination of coverage and privacy 

issues)? 

21. Many group health plan 

disclosures are time-sensitive (e.g., 

COBRA election notice, HIPAA 

certificate of creditable coverage, special 

enrollment notice for dependents 

previously denied coverage under the 

ACA, denials in the case of urgent care 

claims and appeals). Are there special 

considerations the Department should 

take into account to ensure actual 

receipt of time-sensitive group health 

plan disclosures? 

22. Do spam filters and similar 

measures used by non-workplace 

(personal) e-mail accounts, pose 

particular problems that should be taken 

into consideration? 

23. What is the current practice for 

confirming that a participant received a 

time-sensitive notice that requires a 

participant response? 

24. What are current practices for 

ensuring that the e-mail address on file 

for the participant is the most current email address? For example, what are the 

current practices for obtaining and 

updating e-mail addresses of 

participants who lose their work e-mail 

address upon cessation of employment 

or transfer to a job position that does not 

provide access to an employer provided 

computer? 

Comments Regarding Economic 

Analysis, Paperwork Reduction Act, and 

Regulatory Flexibility Act 

Executive Order 12866 (EO 12866) 

requires an assessment of the 

anticipated costs and benefits to the 

government and the public of a 

significant rulemaking action, and of the 

alternatives considered, using the 

guidance provided by the Office of 

Management and Budget. Under EO 

12866, a determination must be made 

whether implementation of this rule 

will be economically significant. A rule 

that has an annual effect on the 

economy of $100 million or more is 

considered economically significant. 

In addition, the Regulatory Flexibility 

Act may require the preparation of an 

analysis of the impact on small entities 

of proposed rules and regulatory 

alternatives. A regulatory flexibility 

analysis must generally include, among 

other things, an estimate of the number 

of small entities subject to the 

regulations (for this purpose, plans, 

employers, and issuers and, in some 

contexts small governmental entities), 

the expense of the reporting, 

recordkeeping, and other compliance 

requirements (including the expense of 

using professional expertise), and a 

description of any significant regulatory 

alternatives considered that would 

accomplish the stated objectives of the 

statute and minimize the impact on 

small entities. For this purpose, the 

Agency considers a small entity to be an 

employee benefit plan with fewer than 

100 participants. 

The Paperwork Reduction Act 

requires an estimate of how many 

‘‘respondents’’ will be required to 

comply with any ‘‘collection of 

information’’ requirements contained in 

regulations and how much time and 

cost will be incurred as a result. A 

collection of information includes 

recordkeeping, reporting to 

governmental agencies, and third-party 

disclosures. 

The Department is requesting 

comments that may contribute to the 

analyses that will be performed under 

these requirements, both generally and 


srobinson on DSKHWCL6B1PROD with PROPOSALS
19290 Federal Register / Vol. 76, No. 67 / Thursday, April 7, 2011 / Proposed Rules 

with respect to the following specific 

areas: 

25. What costs and benefits are 

associated with expanding electronic 

distribution of required plan 

disclosures? Do costs and benefits vary 

across different types of participants, 

sponsors, plans, or disclosures? Are the 

printing costs being transferred from 

plans to plan participants and 

beneficiaries when information is 

furnished electronically? 

26. If electronic disclosure were the 

default method for distributing required 

plan disclosures, and assuming ‘‘opting 

out’’ were an option, what percentage of 

participants would likely ‘‘opt-out’’ of 

electronic disclosure in order to receive 

paper disclosures? Should participants 

be informed of increased plan costs, if 

any, attendant to furnishing paper 

disclosures at the time they are afforded 

the option to opt out or into an 

electronic disclosure regime? 

27. Do participants prefer receiving 

certain plan documents on paper rather 

than electronically (e.g., summary plan 

descriptions versus quarterly benefit 

statements), and what reasons are given 

for such preference? Would this 

preference change if participants were 

aware of the additional cost associated 

with paper disclosure? 

28. What impact would expanding 

electronic disclosure have on small 

plans? Are there unique costs or benefits 

for small plans? What special 

considerations, if any, are required for 

small plans? 

29. Is it more efficient to send an email with the disclosure attached (e.g., 

as a PDF file) versus a link to a Web 

site? Which means of furnishing is more 

secure? Which means of furnishing 

would increase the likelihood that a 

worker will receive, read, retain and act 

upon the disclosure? 

30. Employee benefit plans often are 

subject to more than one applicable 

disclosure law (e.g., ERISA, Internal 

Revenue Code) and regulatory agency. 

To what extent would such employee 

benefit plans benefit from a single 

electronic disclosure standard? 

Signed at Washington, DC, this 1st day of 

April, 2011. 

Phyllis C. Borzi, 

Assistant Secretary, Employee Benefits 

Security Administration, Department of 

Labor. 

[FR Doc. 2011–8288 Filed 4–6–11; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2011–0197] 

RIN 1625–AA00 

Safety Zone; Commencement Bay, 

Tacoma, WA 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Coast Guard is proposing 

to amend 33 CFR 165.1305 to expand 

the established safety zone during the 

annual Tacoma Freedom Air Show on 

the fourth of July. The proposed safety 

zone expansion would establish a larger 

clear area for low flying aircraft during 

this event. This rule is necessary to help 

ensure the safety of the maritime public 

and event participants during this 

annual event and will do so by 

prohibiting any person or vessel from 

entering or remaining within the safety 

zone during this event. 

DATES: Comments and related material 

must be received by the Coast Guard on 

or before May 9, 2011. Requests for 

public meetings must be received by the 

Coast Guard on or before May 9, 2011. 

ADDRESSES: You may submit comments 

identified by docket number USCG– 

2011–0197 using any one of the 

following methods: 

(1) Federal eRulemaking Portal: 

http://www.regulations.gov. 

(2) Fax: 202–493–2251. 

(3) Mail: Docket Management Facility 

(M–30), U.S. Department of 

Transportation, West Building Ground 

Floor, Room W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC 20590– 

0001. 

(4) Hand delivery: Same as mail 

address above, between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. The telephone number 

is 202–366–9329. 

To avoid duplication, please use only 

one of these four methods. See the 

‘‘Public Participation and Request for 

Comments’’ portion of the 

SUPPLEMENTARY INFORMATION section 

below for instructions on submitting 

comments. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this proposed 

rule, call or e-mail Ensign Anthony P. 

LaBoy, USCG Sector Puget Sound 

Waterways Management Division, Coast 

Guard; telephone 206–217–6323, e-mail 

SectorPugetSoundWWM@uscg.mil. If 

you have questions on viewing or 

submitting material to the docket, call 

Renee V. Wright, Program Manager, 

Docket Operations, telephone 202–366– 

9826. 

SUPPLEMENTARY INFORMATION: 

Public Participation and Request for 

Comments 

We encourage you to participate in 

this rulemaking by submitting 

comments and related materials. All 

comments received will be posted 

without change to http:// 

www.regulations.gov and will include 

any personal information you have 

provided. 

Submitting Comments 

If you submit a comment, please 

include the docket number for this 

rulemaking (USCG–2011–0197), 

indicate the specific section of this 

document to which each comment 

applies, and provide a reason for each 

suggestion or recommendation. You 

may submit your comments and 

material online (via http:// 

www.regulations.gov) or by fax, mail, or 

hand delivery, but please use only one 

of these means. If you submit a 

comment online via http:// 

www.regulations.gov, it will be 

considered received by the Coast Guard 

when you successfully transmit the 

comment. If you fax, hand deliver, or 

mail your comment, it will be 

considered as having been received by 

the Coast Guard when it is received at 

the Docket Management Facility. We 

recommend that you include your name 

and a mailing address, an e-mail 

address, or a telephone number in the 

body of your document so that we can 

contact you if we have questions 

regarding your submission. 

To submit your comment online, go to 

http://www.regulations.gov, click on the 

‘‘submit a comment’’ box, which will 

then become highlighted in blue. In the 

‘‘Document Type’’ drop down menu 

select ‘‘Proposed Rule’’ and insert 

‘‘USCG–2011–0197’’ in the ‘‘Keyword’’ 

box. Click ‘‘Search’’ then click on the 

balloon shape in the ‘‘Actions’’ column. 

If you submit your comments by mail or 

hand delivery, submit them in an 

unbound format, no larger than 81⁄2; by 

11 inches, suitable for copying and 

electronic filing. If you submit 

comments by mail and would like to 

know that they reached the Facility, 

please enclose a stamped, self-addressed 

postcard or envelope. We will consider 

all comments and material received 

during the comment period and may 

change the rule based on your 

comments. 


srobinson on DSKHWCL6B1PROD with PROPOSALS