Federal Register / Vol. 73, No. 197 / Thursday, October 9, 2008 / Proposed Rules 59575 

(or its delegated agent) and performing 

corrective action before further flight. 

Other FAA AD Provisions 

(g) The following provisions also apply to 

this AD: 

(1) Alternative Methods of Compliance 

(AMOCs): The Manager, International 

Branch, ANM–116, FAA, has the authority to 

approve AMOCs for this AD, if requested 

using the procedures found in 14 CFR 39.19. 

Send information to Attn: Tom Rodriguez, 

Aerospace Engineer, International Branch, 

ANM–116, Transport Airplane Directorate, 

FAA, 1601 Lind Avenue, SW., Renton, 

Washington 98057–3356; telephone (425) 

227–1137; fax (425) 227–1149. Before using 

any approved AMOC on any airplane to 

which the AMOC applies, notify your 

appropriate principal inspector (PI) in the 

FAA Flight Standards District Office (FSDO), 

or lacking a PI, your local FSDO. 

(2) Airworthy Product: For any requirement 

in this AD to obtain corrective actions from 

a manufacturer or other source, use these 

actions if they are FAA-approved. Corrective 

actions are considered FAA-approved if they 

are approved by the State of Design Authority 

(or their delegated agent). You are required 

to assure the product is airworthy before it 

is returned to service. 

(3) Reporting Requirements: For any 

reporting requirement in this AD, under the 

provisions of the Paperwork Reduction Act, 

the Office of Management and Budget (OMB) 

has approved the information collection 

requirements and has assigned OMB Control 

Number 2120–0056. 

Related Information 

(h) Refer to MCAI EASA Emergency 

Airworthiness Directive 2008–0137–E, dated 

July 23, 2008, and Avions de Transport 

Regional Service Bulletin ATR72–27–1059, 

Revision 02, dated May 19, 2008, for related 

information. 

Issued in Renton, Washington, on October 

3, 2008. 

Ali Bahrami, 

Manager, Transport Airplane Directorate, 

Aircraft Certification Service. 

[FR Doc. E8–23982 Filed 10–8–08; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 1 

[REG–143544–04] 

RIN 1545–BD84 

Regulations Enabling Elections for 

Certain Transactions Under Section 

336(e) 

Correction 

In proposed rule document E8–19603 

beginning on page 49965 in theissue of 

Monday, August 25, 2008, make the 

following correction: 

§1.336–3 [Corrected] 

1. On page 49979, in the first column, 

in §1.336–3(d)(1), in thetwenty-second 

line, ‘‘into account in an amount’’ 

should read‘‘into account in amount’’. 

2. On the same pages, in the same 

column, in §1.336–3(d)(2), in thelast 

line, ‘‘into account in an amount’’ 

should read ‘‘into accountin amount’’. 

[FR Doc. Z8–19603 Filed 10–8–08; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 1 

[REG–107318–08] 

RIN 1545–BH75 

Notice to Participants of 

Consequences of Failing To Defer 

Receipt of Qualified Retirement Plan 

Distributions; Expansion of Applicable 

Election Period and Period for Notices 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Notice of proposed rulemaking 

and notice of public hearing. 

SUMMARY: This document contains 

proposed regulations under sections 

402(f), 411(a)(11), and 417 of the 

Internal Revenue Code (Code). The 

proposed regulations would provide 

that the notice required under section 

411(a)(11) to be provided to a 

participant of his or her right, if any, to 

defer receipt of an immediately 

distributable benefit must also describe 

the consequences of failing to defer 

receipt of the distribution. The proposed 

regulations would also provide that the 

applicable election period for waiving 

the qualified joint and survivor annuity 

form of benefit under section 417 is the 

180-day period ending on the annuity 

starting date, and that a notice required 

to be provided under section 402(f), 

section 411(a)(11), or section 417 may 

be provided to a participant as much as 

180 days before the annuity starting date 

(or, for a notice under section 402(f), the 

distribution date). These regulations 

would affect administrators of, 

employers maintaining, participants in, 

and beneficiaries of tax-favored 

retirement plans. 

DATES: Written or electronic comments 

and requests to speak at the public 

hearing must be received by January 7, 

2009. 

ADDRESSES: Send submissions to: 

CC:PA:LPD:PR (REG–107318–08), room 

5203, Internal Revenue Service, PO Box 

7604, Ben Franklin Station, Washington 

DC 20044. Submissions may be handdelivered Monday through Friday 

between the hours of 8 a.m. and 4 p.m. 

to: CC:PA:LPD:PR (REG–107318–08), 

Courier’s Desk, Internal Revenue 

Service, 1111 Constitution Avenue, 

NW., Washington, DC, or sent 

electronically via the Federal 

eRulemaking Portal at http:// 

www.regulations.gov (IRS REG–107318– 

08). 

FOR FURTHER INFORMATION CONTACT: 

Concerning the regulations, Michael P. 

Brewer at (202) 622–6090; concerning 

submission of comments or to request to 

speak at the public hearing, Funmi 

Taylor at (202) 622–7180 (not toll-free 

numbers). 

SUPPLEMENTARY INFORMATION: 

Paperwork Reduction Act 

The collection of information 

contained in this notice of proposed 

rulemaking has been submitted to the 

Office of Management and Budget for 

review in accordance with the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3507(d)). Comments on the 

collection of information should be sent 

to the Office of Management and 

Budget, Attn: Desk Officer for the 

Department of the Treasury, Office of 

Information and Regulatory Affairs, 

Washington, DC 20503, with copies to 

the Internal Revenue Service, Attn: IRS 

Reports Clearance Officer, 

SE:W:CAR:MP:T:T:SP; Washington, DC 

20224. Comments on the collection of 

information should be received by 

December 8, 2008. Comments are 

specifically requested concerning: 

Whether the proposed collection of 

information is necessary for the proper 

performance of the functions of the 

Internal Revenue Service, including 

whether the information will have 

practical utility; 

The accuracy of the estimated burden 

associated with the proposed collection 

of information; 

How the quality, utility, and clarity of 

the information to be collected may be 

enhanced; 

How the burden of complying with 

the proposed collections of information 

may be minimized, including through 

the application of automated collection 

techniques or other forms of information 

technology; and 

Estimates of capital or start-up costs 

and costs of operation, maintenance, 

and purchase of service to provide 

information. 

The collection of information in these 

proposed regulations is in § 1.411(a)– 

11(c)(2) of the Income Tax Regulations. 

This collection of information is 

required to comply with the statutory 


jlentini on PROD1PC65 with PROPOSALS
59576 Federal Register / Vol. 73, No. 197 / Thursday, October 9, 2008 / Proposed Rules 

notice requirements of section 411(a), 

and is expected to be included in the 

notices currently provided to employees 

that inform them of their rights and 

benefits under the plan. The likely 

recordkeepers are businesses or other 

for-profit institutions and nonprofit 

institutions and organizations. 

Estimated total annual recordkeeping 

burden: 100,000 hours. 

Estimated average annual burden 

hours per recordkeeper: 1 hour. 

Estimated number of recordkeepers: 

100,000. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a valid control 

number assigned by the Office of 

Management and Budget. 

Books or records relating to a 

collection of information must be 

retained as long as their contents may 

become material in the administration 

of any internal revenue law. Generally, 

tax returns and tax return information 

are confidential, as required by 26 

U.S.C. 6103. 

Background 

A. Notice of Consequences of Failing To 

Defer 

Section 411(a)(11)(A) provides that, if 

the present value of any nonforfeitable 

accrued benefit exceeds $5,000, a 

qualified plan must provide that such 

benefit may not be immediately 

distributed without the consent of the 

participant. Similarly, section 203(e) of 

the Employee Retirement Income 

Security Act of 1974, as amended 

(ERISA), provides that if the present 

value of any nonforfeitable accrued 

benefit with respect to a participant in 

a plan exceeds $5,000, the benefit may 

not be immediately distributed without 

the consent of the participant. 

Section 1102(b)(1) of the Pension 

Protection Act of 2006 (PPA ’06), 109 

Public Law 280, 120 Stat. 780, instructs 

the Secretary of the Treasury to modify 

the regulations under section 411(a)(11) 

of the Code ‘‘to provide that the 

description of a participant’s right, if 

any, to defer receipt of a distribution 

shall also describe the consequences of 

failing to defer such receipt.’’ Section 

1102(b)(2)(A) of PPA ’06 provides that 

the modifications required by section 

1102(b)(1) of PPA ’06 shall apply to 

years beginning after December 31, 

2006. Section 1102(b)(2)(B) of PPA ’06, 

however, states that a plan shall not be 

treated as failing to meet the 

requirements of section 411(a)(11) with 

respect to any description of the 

consequences of failing to defer 

provided ‘‘within 90 days after the 

Secretary of the Treasury issues the 

modifications required by [section 

1102(b)(1) of PPA ’06] if the plan 

administrator makes a reasonable 

attempt to comply with such 

requirements.’’ 

Section 1.411(a)–11(c)(2)(i) states that, 

in order for a plan to obtain valid 

consent under section 411(a)(11), ‘‘so 

long as a benefit is immediately 

distributable, a participant must be 

informed of the right, if any, to defer 

receipt of the distribution.’’ Section 

1.411(a)–11(c)(4) states that a 

distribution is immediately distributable 

prior to the later of the time a 

participant has attained normal 

retirement age or age 62. 

Q&A–32 of Notice 2007–7, 2007–5 

I.R.B. 395, provides that a plan 

administrator is required to revise the 

notice required under section 411 to 

reflect the modifications made by 

section 1102(b) of PPA ’06 for notices 

provided in plan years beginning after 

December 31, 2006. Notice 2007–7 

further provides that, pursuant to 

section 1102(b)(2)(B) of PPA ’06, a plan 

will not be treated as failing to meet the 

new requirements of section 1102(b) of 

PPA ’06 if the plan administrator makes 

a reasonable attempt to comply with the 

new requirements with respect to a 

notice that is provided prior to the 90th 

day after the issuance of regulations 

reflecting the modifications required by 

such section 1102(b) of PPA ’06. See 

§ 601.601(b)(2)(ii)(b). 

Q&A–33 of Notice 2007–7 includes a 

safe harbor that would be considered a 

reasonable attempt to comply with the 

requirement in section 1102(b)(1) of 

PPA ’06 that a description of a 

participant’s right to defer receipt of a 

distribution include a description of the 

consequences of failing to defer. In 

particular, Q&A–33 provides that a 

description that is written in a manner 

reasonably calculated to be understood 

by the average participant and that 

includes the following information is a 

reasonable attempt to comply with the 

requirements of section 1102(b)(2)(B) of 

PPA ’06: (a) In the case of a defined 

benefit plan, a description of how much 

larger benefits will be if the 

commencement of distributions is 

deferred; (b) in the case of a defined 

contribution plan, a description 

indicating the investment options 

available under the plan (including fees) 

that will be available if distributions are 

deferred; and (c) the portion of the 

summary plan description that contains 

any special rules that might materially 

affect a participant’s decision to defer. 

For purposes of clause (a), a plan 

administrator can use a description that 

includes the financial effect of deferring 

distributions, as described in 

§ 1.417(a)(3)–1(d)(2)(i), based solely on 

the normal form of benefit. 

Q&A–31 of Notice 2007–7 provides 

that the provisions of section 1102 

apply to plan years that begin after 

December 31, 2006. Q&A–31 explains 

that this means that the new rules 

relating to the content of the notices 

apply only to notices issued in those 

plan years, without regard to the 

annuity starting date for the 

distributions. 

B. Expansion of Applicable Election 

Period 

Section 401(a)(11)(A)(i) provides that, 

except as provided in section 417, a 

plan that is qualified under section 

401(a) must provide the accrued benefit 

payable to a vested participant who 

does not die before the annuity starting 

date in the form of a qualified joint and 

survivor annuity. 

Section 417(a)(1)(A) provides that, in 

general, a plan satisfies section 

401(a)(11) only if each participant may 

elect at any time during the ‘‘applicable 

election period’’ to waive the qualified 

joint and survivor annuity form of 

benefit (and to revoke the waiver), and 

certain other requirements are satisfied. 

Before PPA ’06, section 417(a)(6)(A) 

provided that the ‘‘applicable election 

period’’ for a participant to waive the 

qualified joint and survivor annuity 

form of distribution was the 90-day 

period ending on the annuity starting 

date. 

Section 1102(a)(1)(A) of PPA ’06 

amended section 417(a)(6)(A) by 

changing the 90-day ‘‘applicable 

election period’’ for electing a 

distribution subject to the qualified joint 

and survivor annuity (QJSA) rules of 

sections 401(a)(11) and 417 in a form 

other than a QJSA to a 180-day 

applicable election period. Section 

1102(a)(2)(A) of PPA ’06 made a parallel 

amendment to section 205(c)(7)(A) of 

ERISA by striking ‘‘90-day’’ and 

inserting ‘‘180-day’’. 

Sections 1102(a)(1)(B) and 

1102(a)(2)(B) of PPA ’06 provide that the 

Secretary of the Treasury shall modify 

the regulations relating to section 417 of 

the Code and section 205 of ERISA by 

substituting ‘‘180 days’’ for ‘‘90 days’’ 

each place it appears. 

Section 1102(a)(3) of PPA ’06 

provides that the amendments to the 

applicable election period apply to 

years beginning after December 31, 

2006. 

C. Expansion of Period for Notices 

Section 417(a)(3)(A) of the Code and 

section 205(c)(3)(A) of ERISA provide 

that a plan must provide to each 


jlentini on PROD1PC65 with PROPOSALS
Federal Register / Vol. 73, No. 197 / Thursday, October 9, 2008 / Proposed Rules 59577 

participant, ‘‘within a reasonable period 

of time before the annuity starting date’’ 

and consistent with such regulations as 

the Secretary of the Treasury may 

prescribe, a written explanation that 

describes the terms and conditions of 

the qualified joint and survivor annuity 

and certain other information. Similarly, 

section 402(f)(1) provides that a plan 

administrator must, ‘‘within a 

reasonable period of time’’ before 

making an eligible rollover distribution, 

provide to recipients an explanation of 

certain tax consequences of the 

distribution. 

Section 1102(a)(1)(B) of PPA ’06 

provides that the Secretary of the 

Treasury shall modify the regulations 

under sections 402(f), 411(a)(11), and 

417 by substituting ‘‘180 days’’ for ‘‘90 

days’’ each place it appears in 

§§ 1.402(f)–1, 1.411(a)–11(c), and 

1.417(e)–1(b). Similarly, section 

1102(a)(2)(B) of PPA ’06 provides that 

the Secretary of the Treasury shall 

modify the regulations relating to 

sections 203(e) and 205 of ERISA by 

substituting ‘‘180 days’’ for ‘‘90 days’’ 

each place it appears. 

Section 1102(a)(3) provides that the 

amendments to the notice periods apply 

to years beginning after December 31, 

2006. Q&A–31 of Notice 2007–7 

explains that the 180-day period for 

distributing notices applies to notices 

distributed in a plan year that begins 

after December 31, 2006. 

D. Requirements under ERISA 

ERISA section 203(e) is the parallel 

provision to section 411(a)(11) of the 

Code and ERISA section 205 is the 

ERISA parallel to section 417 of the 

Code. Pursuant to section 101 of 

Reorganization Plan No. 4 of 1978, 29 

U.S.C. 1001nt (the Reorganization Plan), 

the Secretary of the Treasury generally 

has authority to issue regulations under 

parts 2 and 3 of subtitle B of title I of 

ERISA, including sections 203(e) and 

205 of ERISA. Thus, the changes 

required by section 1102 of PPA ’06 

would apply as well for purposes of 

ERISA sections 203(e) and 205. 

Explanation of Provisions 

A. Notice of Consequences of Failing To 

Defer 

These proposed regulations would 

provide that the notice required by 

section 411(a)(11) advising a participant 

of the right, if any, to defer receipt of a 

distribution must also inform the 

participant of the consequences of 

failing to defer such receipt. The 

proposed regulations would also 

provide guidance on the relevant 

information that must be provided to a 

participant in order to satisfy the 

requirement that the participant be 

notified of the consequences of failing to 

defer. 

Specifically, these proposed 

regulations would require that the 

participant be provided a description of 

specified federal tax implications of 

failing to defer and, in the case of a 

defined benefit plan, a statement of the 

amount payable to the participant under 

the normal form of benefit both upon 

immediate commencement and when 

the benefit is no longer immediately 

distributable (that is, the later of age 62 

or attainment of normal retirement age). 

Section 1.417(a)(3)–1(c)(2)(ii) permits a 

plan to provide participants with a 

QJSA explanation, which does not vary 

based on the participant’s marital status, 

of the relative value of optional forms of 

benefit compared to the value of a QJSA. 

These proposed regulations would 

permit the statement of the amount 

payable to not be based on the 

participant’s marital status, to the extent 

the plan is permitted under 

§ 1.417(a)(3)–1(c)(2)(ii) to use a QJSA 

explanation that does not vary based on 

whether the participant is married or 

unmarried. 

The proposed regulations would also 

require the information in the notice to 

include, in the case of a defined 

contribution plan, a statement that some 

currently available investment options 

in the plan may not be generally 

available on similar terms outside the 

plan and contact information for 

obtaining additional information on the 

general availability outside the plan of 

currently available investment options 

in the plan. In addition, the proposed 

regulations would require the notice to 

include, in the case of a defined 

contribution plan, a statement that fees 

and expenses (including administrative 

or investment-related fees) outside the 

plan may be different from fees and 

expenses that apply to the participant’s 

account and contact information for 

obtaining information on such fees. 

The proposed regulations also include 

an additional category of information 

that must be provided relating to any 

provisions of the plan (and provisions of 

any accident or health plan maintained 

by the employer) that could reasonably 

be expected to materially affect a 

participant’s decision whether to defer 

receipt of the distribution. Thus, for 

example, the proposed regulations 

would require a description of the 

eligibility requirements for retiree 

health benefits if such benefits are 

limited to participants who have an 

undistributed benefit under the 

employer’s retirement plan. 

In general, the proposed regulations 

would also provide that the required 

information regarding the consequences 

of a participant’s failing to defer receipt 

of a distribution must appear together. 

However, the proposed regulations 

would permit a cross-reference to where 

the required information may be found 

in notices or other information provided 

or made available to the participant, as 

long as the notice of consequences of 

failing to defer includes a statement of 

how the referenced information may be 

obtained without charge and explains 

why the referenced information is 

relevant to a decision whether to defer. 

B. Expansion of Applicable Election 

Period and Period for Notices 

Consistent with sections 1102(a)(1)(A) 

and (1)(B) and 1102(a)(2)(A) and (2)(B) 

of PPA ’06, the proposed regulations 

would both (1) expand the definition of 

applicable election period to up to 180 

days, and (2) expand the time period for 

notices issued under sections 402(f), 

411(a)(11), and 417 to allow the notices 

to be issued up to 180 days prior to the 

annuity starting date (or, in the case of 

a notice under section 402(f), the date of 

distribution). Specifically, the proposed 

regulations would substitute ‘‘180 days’’ 

for ‘‘90 days’’ and ‘‘180-day’’ for ‘‘90- 

day’’ each place those terms appear in 

§ 1.401(a)–13(g)(4)(ii), § 1.401(a)–20, A– 

3(b)(1), A–4, A–10(a), A–16, and A– 

24(a)(1), § 1.402(f)–1, § 1.411(a)–11(c), 

and § 1.417(e)–1(b). 

Pursuant to section 101 of the 

Reorganization Plan, the Secretary of 

Treasury has the authority to issue 

regulations under ERISA sections 203(e) 

and 205. Thus, these proposed 

regulations that apply to sections 402(f), 

411(a)(11), and 417 of the Code would 

apply as well for purposes of sections 

203(e) and 205 of ERISA. 

Proposed Effective/Applicability Date 

These regulations are proposed to 

become effective for notices provided 

(and election periods beginning) on or 

after the first day of the first plan year 

beginning on or after January 1, 2010. 

However, in no event will the 

regulations become effective for notices 

provided (and election periods 

beginning) earlier than the first day of 

the first plan year beginning 90 days 

after publication of final regulations in 

the Federal Register. 

With respect to the regulations 

relating to the notice of consequences of 

failing to defer the receipt of 

distributions, until these regulations 

become effective, a plan will be treated 

as complying if: (1) The plan complies 

either with these proposed regulations 

or with Q&A–32 and Q&A–33 in Notice 


jlentini on PROD1PC65 with PROPOSALS
59578 Federal Register / Vol. 73, No. 197 / Thursday, October 9, 2008 / Proposed Rules 

2007–7; or (2) if the plan administrator 

makes a reasonable attempt to comply 

with the requirement that the 

description of a participant’s right, if 

any, to defer receipt of a distribution 

shall also describe the consequences of 

failing to defer such receipt. 

With respect to the proposed 

regulations relating to the expanded 

applicable election period and the 

expanded period for notices, plans may 

rely on these proposed regulations for 

notices provided (and election periods 

beginning) during the period beginning 

on the first day of the first plan year 

beginning on or after January 1, 2007 

and ending on the effective date of final 

regulations. 

Special Analyses 

It has been determined that this notice 

of proposed rulemaking is not a 

significant regulatory action as defined 

in Executive Order 12866. Therefore, a 

regulatory assessment is not required. It 

also has been determined that section 

553(b) of the Administrative Procedure 

Act (5 U.S.C. chapter 5) does not apply 

to these regulations. 

It is hereby certified that the 

collection of information contained in 

this regulation will not have a 

significant economic impact on a 

substantial number of small entities. 

This certification is based on several 

factors, including that the regulation 

merely provides guidance to implement 

a statutorily-required notice, and that 

the incremental burden in the regulation 

would be minimal because it only 

requires including additional 

information in notices already provided 

by all of the affected entities. 

Accordingly, a Regulatory Flexibility 

Analysis under the Regulatory 

Flexibility Act (5 U.S.C. chapter 6) is 

not required. Pursuant to section 7805(f) 

of the Code, this notice of proposed 

rulemaking will be submitted to the 

Chief Counsel for Advocacy of the Small 

Business Administration for comment 

on its impact on small business. 

Comments and Public Hearing 

Before these proposed regulations are 

adopted as final regulations, 

consideration will be given to any 

written (one signed and eight (8) copies) 

or electronic comments that are 

submitted timely to the IRS. All 

comments will be available for public 

inspection and copying. 

A public hearing has been scheduled 

for Friday, February 20, 2009, at 10 a.m. 

in the IRS Auditorium, Internal Revenue 

Building, 1111 Constitution Avenue, 

NW., Washington, DC. Due to building 

security procedures, visitors must enter 

at the Constitution Avenue entrance. In 

addition, all visitors must present photo 

identification to enter the building. 

Because of access restrictions, visitors 

will not be admitted beyond the 

immediate entrance area more than 30 

minutes before the hearing starts. For 

information about having your name 

placed on the building access list to 

attend the hearing, see the FOR FURTHER

INFORMATION CONTACT section of this 

preamble. 

Persons who wish to present oral 

comments at the hearing must submit 

written or electronic comments by 

January 7, 2009 and submit an outline 

of the topics to be discussed and the 

amount of time to be devoted to each 

topic (a signed original and eight (8) 

copies) by January 16, 2009. A period of 

10 minutes will be allotted to each 

person for making comments. 

An agenda showing the scheduling of 

the speakers will be prepared after the 

deadline for receiving outlines has 

passed. Copies of the agenda will be 

available free of charge at the hearing. 

Drafting Information 

The principal author of these 

regulations is Michael P. Brewer, Office 

of Division Counsel/Associate Chief 

Counsel (Tax Exempt and Government 

Entities). However, other personnel 

from the Office of Chief Counsel, IRS, 

and the Department of the Treasury 

participated in the development of these 

regulations. 

Proposed Amendments to the 

Regulations 

Accordingly, 26 CFR part 1 is 

proposed to be amended as follows: 

PART 1—INCOME TAXES 

Paragraph 1. The authority citation 

for part 1 continues to read as follows: 

Authority: 26 U.S.C. 7805 * * *. 

§ 1.401(a)–13; § 1.401(a)–20; § 1.402(f)–1; 

§ 1.411(a)–11; § 1.417(e)–1 [Amended] 

Par. 2. For each entry listed in the 

‘‘Location’’ column, remove the 

language in the ‘‘Remove’’ column and 

add the language in the ‘‘Add’’ column 

in its place. 

Location Remove Add 

1.401(a)–13(g)(4)(ii), first sentence ........................................ 90 days .................................................. 180 days. 

1.401(a)–20, A–4, third sentence ........................................... 90 days .................................................. 180 days. 

1.401(a)–20, A–10(a), fifth and sixth sentences ..................... 90 days .................................................. 180 days. 

1.401(a)–20, A–16, sixth sentence ......................................... 90 days .................................................. 180 days. 

1.401(a)–20, A–24(a)(1), fifth sentence .................................. 90 days .................................................. 180 days. 

1.402(f)–1, A–2(a), first sentence ........................................... 90 days .................................................. 180 days. 

1.411(a)–11(c)(2)(ii) ................................................................ 90 days .................................................. 180 days. 

1.411(a)–11(c)(2)(iii)(A), first sentence ................................... 90 days .................................................. 180 days. 

1.417(e)–1(b)(3)(i) ................................................................... 90 days .................................................. 180 days. 

1.417(e)–1(b)(3)(ii), first sentence .......................................... 90 days .................................................. 180 days. 

1.417(e)–1(b)(3)(iii) ................................................................. 90 days .................................................. 180 days. 

1.417(e)–1(b)(3)(vi), second sentence .................................... 90 days .................................................. 180 days. 

1.417(e)–1(b)(3)(vii) ................................................................ 90 days .................................................. 180 days. 

1.417(e)–1(b)(3)(vii) ................................................................ 90-day .................................................... 180-day. 

§ 1.411(a)–11 [Amended] 

Par. 3. Section 1.411(a)–11 is 

amended as follows: 

1. The second sentence of paragraph 

(c)(2)(i) is revised. 

2. The second sentence of paragraph 

(c)(2)(iii)(B)(3) is revised. 

3. Paragraphs (c)(2)(vi) and (h) are 

added. 

The additions and revisions read as 

follows: 

§ 1.411(a)–11 Restriction and valuation of 

distributions. 

* * * * * 

(c) * * * 

(2) Consent—(i) * * * In addition, so 

long as a benefit is immediately 

distributable, a participant must be 

informed of the right, if any, to defer 

receipt of the distribution and of the 

consequences of failing to defer such 

receipt. * * * 

* * * * * 

(iii) * * * 

(B) * * * 


jlentini on PROD1PC65 with PROPOSALS
Federal Register / Vol. 73, No. 197 / Thursday, October 9, 2008 / Proposed Rules 59579 

(3) * * * The summary described in 

paragraph (c)(2)(iii)(B)(2) of this section 

must advise the participant of the right, 

if any, to defer receipt of the 

distribution and of the consequences of 

failing to defer such receipt, must set 

forth a summary of the distribution 

options under the plan, must refer the 

participant to the most recent version of 

the notice (and, in the case of a notice 

provided in any document containing 

information in addition to the notice, 

must identify that document and must 

provide a reasonable indication of 

where the notice may be found in that 

document, such as by index reference or 

by section heading), and must advise 

the participant that, upon request, a 

copy of the notice will be provided 

without charge. 

* * * * * 

(vi) Consequences of failing to defer— 

(A) A notice under this paragraph (c)(2) 

that is required to describe the 

consequences of failing to defer receipt 

of a distribution until it is no longer 

immediately distributable must, to the 

extent applicable under the plan and in 

a manner designed to be easily 

understood, provide the participant 

with the information set out in 

paragraphs (c)(2)(vi)(A)(1) through (5) of 

this section and explain why it is 

relevant to a decision whether to defer. 

(1) A description of the following 

federal tax implications of failing to 

defer: differences in the timing of 

inclusion in taxable income of an 

immediately commencing distribution 

that is not rolled over (or not eligible to 

be rolled over) and a distribution that is 

deferred until it is no longer 

immediately distributable (including, as 

applicable, differences in the taxation of 

distributions of designated Roth 

contributions within the meaning of 

section 402A); application of the 10% 

additional tax on certain distributions 

before age 591⁄2 under section 72(t); and, 

in the case of a defined contribution 

plan, loss of the opportunity upon 

immediate commencement for future 

tax-favored treatment of earnings if the 

distribution is not rolled over (or not 

eligible to be rolled over) to an eligible 

retirement plan described in section 

402(c)(8)(B). 

(2) In the case of a defined benefit 

plan, a statement of the amount payable 

to the participant under the normal form 

of benefit both upon immediate 

commencement and upon 

commencement when the benefit is no 

longer immediately distributable 

(assuming no future benefit accruals). 

The statement need not vary based on 

the participant’s marital status if the 

plan is permitted, pursuant to 

§ 1.417(a)(3)–1(c)(2)(ii), to provide a 

QJSA explanation that does not vary 

based on the participant’s marital status. 

(3) In the case of a defined 

contribution plan, a statement that some 

currently available investment options 

in the plan may not be generally 

available on similar terms outside the 

plan and contact information for 

obtaining additional information on the 

general availability outside the plan of 

currently available investment options 

in the plan. 

(4) In the case of a defined 

contribution plan, a statement that fees 

and expenses (including administrative 

or investment-related fees) outside the 

plan may be different from fees and 

expenses that apply to the participant’s 

account and contact information for 

obtaining additional information on the 

fees and expenses that apply to the 

participant’s account. 

(5) An explanation of any provisions 

of the plan (and provisions of an 

accident or health plan maintained by 

the employer) that could reasonably be 

expected to materially affect a 

participant’s decision whether to defer 

receipt of the distribution. Such 

provisions would include, for example: 

plan terms under which a participant 

who fails to defer may lose eligibility for 

retiree health coverage or eligibility for 

early retirement subsidies or social 

security supplements; plan terms under 

which the benefit of a rehired 

participant who failed to defer may be 

adversely affected by the decision not to 

defer; and, in the case of a defined 

contribution plan, plan terms under 

which undistributed benefits that 

otherwise are nonforfeitable become 

forfeitable upon the participant’s death. 

(B) Location of information; 

incorporation by reference. In general, 

the information required to be provided 

in a notice under this paragraph 

(c)(2)(vi) must appear together (for 

example, in a list of consequences of 

failing to defer). However, the notice 

will not be treated as failing to satisfy 

the requirements of this paragraph 

(c)(2)(vi) merely because the notice 

includes a cross-reference to where the 

required information may be found in 

notices or other information provided or 

made available to the participant, as 

long as the notice of consequences of 

failing to defer includes a statement of 

how the referenced information may be 

obtained without charge and explains 

why the referenced information is 

relevant to a decision whether to defer. 

* * * * * 

(h) Consequences of Failing to Defer 

Effective/Applicability Date. The 

provisions in paragraph (c) of this 

section that describe the requirement to 

notify participants of the consequences 

of failing to defer are effective for 

notices provided on or after the first day 

of the first plan year beginning on or 

after January 1, 2010. 

Linda E. Stiff, 

Deputy Commissioner for Services and 

Enforcement. 

[FR Doc. E8–23918 Filed 10–8–08; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 288 

[DoD–2008–OS–0059; RIN 0790–AI29] 

Office of the Secretary of Defense and 

Joint Staff Freedom of Information Act 

Program 

AGENCY: Department of Defense. 

ACTION: Proposed rule. 

SUMMARY: This part establishes Office of 

the Secretary of Defense (OSD) policy, 

assigns responsibilities, and prescribes 

procedures for the effective 

administration of the Freedom of 

Information Act (FOIA) Program in OSD 

and the Joint Staff. This part 

supplements and implements part 286 

of 32 CFR, the DoD Freedom of 

Information Act Regulation. 

DATES: Comments must be received by 

December 8, 2008. 

ADDRESSES: You may submit comments, 

identified by docket number and/or RIN 

number and title, by any of the 

following methods: 

• Federal Rulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Federal Docket Management 

System Office, 1160 Defense Pentagon, 

Washington, DC 20301–1160. 

Instructions: All submissions received 

must include the agency name and 

docket number or Regulatory 

Information Number (RIN) for this 

Federal Register document. The general 

policy for comments and other 

submissions from members of the public 

is to make these submissions available 

for public viewing on the Internet at 

http://www.regulations.gov as they are 

received without change, including any 

personal identifiers or contact 

information. 

FOR FURTHER INFORMATION CONTACT: 

Dave Henshall, 703–696–3243. 

SUPPLEMENTARY INFORMATION: 


jlentini on PROD1PC65 with PROPOSALS