Td 8873

Federal Register / Vol. 65, No. 26 / Tuesday, February 8, 2000 / Rules and Regulations
§ 71.1

[Amended]

2. The incorporation by reference in
14 CFR 71.1 of Federal Aviation
Administration Order 7400.9G, Airspace
Designations and Reporting Points,
dated September 1, 1999, and effective
September 16, 1999, is amended as
follows:
Paragraph 6005 Class E Airspace Areas
Extending Upward from 700 feet or More
above the Surface of the Earth.

*

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*

*

ASO KY E5 Lexington, KY [Revised]
Lexington, Blue Grass Airport, KY
(Lat. 38°02′13″ N, long. 84°36′20″ W)
Saint Joseph’s Hospital and The University of
Kentucky Medical Center, Lexington, KY
Point In Space Coordinates
(Lat. 38°01′15″ N, long. 84°30′59″ W)
That airspace extending upward from 700
feet or more above the surface within a
7-mile radius of Blue Grass Airport and that
airspace within a 6-mile radius of the point
in space (Lat. 38°01′15″ N, long. 84°30′ 59″
W) serving Saint Joseph’s Hospital and the
University of Kentucky Medical Center,
Lexington, KY.

*

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Issued in College Park, Georgia, on January
20, 2000.
Wade T. Carpenter,
Acting Manager, Air Traffic Division Southern
Region
[FR Doc. 00–2772 Filed 2–7–00; 8:45 am]
BILLING CODE 4910–13–M

DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Parts 1, 35, and 602
[TD 8873]
RIN 1545–AW78

New Technologies in Retirement Plans
AGENCY: Internal Revenue Service (IRS),
Treasury.
ACTION: Final regulations.
SUMMARY: This document contains
amendments to the regulations
governing certain notices and consents
required in connection with
distributions from retirement plans.
Specifically, these regulations set forth
applicable standards for the
transmission of those notices and
consents through electronic media and
modify the timing requirements for
providing certain distribution-related
notices. The regulations provide
guidance to plan sponsors and
administrators by interpreting the notice
and consent requirements in the context
of the electronic administration of

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retirement plans. The regulations affect
retirement plan sponsors,
administrators, and participants.
DATES: Effective Date: These regulations
are effective January 1, 2001.
Applicability Date: These regulations
apply to plan years beginning on or after
January 1, 2001.
FOR FURTHER INFORMATION CONTACT:
Catherine Livingston Fernandez, (202)
622–6030 (not a toll-free number).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collection of information
contained in these final regulations has
been reviewed and approved by the
Office of Management and Budget in
accordance with the Paperwork
Reduction Act (44 U.S.C. 3507) under
control number 1545–1632. Responses
to this collection of information are
mandatory.
An agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless the collection of information
displays a valid control number.
The estimated annual burden per
respondent and/or recordkeeper is 76
minutes.
Comments concerning the accuracy of
this burden estimate and suggestions for
reducing this burden should be sent to
the Internal Revenue Service, Attn: IRS
Reports Clearance Officer, OP:FS:FP,
Washington, DC 20224, and 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.
Books or records relating to this
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
This document contains amendments
to the Income Tax Regulations (26 CFR
parts 1 and 35) under sections 402(f),
411(a)(11) and 3405(e)(10)(B). The
regulations under section 3405(e)(10)(B)
(new Q/A d–35 and d–36 of section
35.3405–1), like the regulations under
sections 402(f) and 411(a)(11) are final
regulations. These regulations finalize
proposed regulations that were
published as a notice of proposed
rulemaking (REG–118662–98) in the
Federal Register (63 FR 70071) on
December 18, 1998. A public hearing
was held on the proposed regulations on
April 15, 1999.

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6001

In addition to the proposed
regulations, the IRS and Treasury issued
Notice 99–1 (1999–2 I.R.B. 8), and
Announcement 99–6 (1999–4 I.R.B. 24),
concerning the use of electronic media
under retirement plans. Notice 99–1
confirms that the ‘‘paperless’’
administration of participant
enrollments, contribution elections,
investment elections, beneficiary
designations (other than designations
requiring spousal consent), direct
rollover elections, and certain other
transactions do not cause a qualified
plan to fail to satisfy the requirements
of section 401(a) (or the requirements
for a qualified cash or deferred
arrangement under section 401(k)).
Announcement 99–6 authorizes the
electronic transmission of Form W–4P.
The proposed regulations, Notice 99–
1, and Announcement 99–6 were issued
pursuant to section 1510 of the
Taxpayer Relief Act of 1997. That
section provides for the Secretary of the
Treasury to issue guidance designed to
interpret the notice, election, consent,
disclosure, time, and related
recordkeeping requirements under the
Code and the Employee Retirement
Income Security Act of 1974 (ERISA)
regarding the use of new technologies
by sponsors and administrators of
retirement plans and to clarify the
extent to which writing requirements
under the Code relating to retirement
plans permit paperless transactions.
Section 1510 provides that the guidance
must protect participant and beneficiary
rights. Any final regulations applicable
to this guidance may not be effective
until the first plan year beginning at
least six months after issuance as final
regulations.
Explanation of Provisions
General
Commentators generally praised the
approach taken in the proposed
regulations of providing broad, flexible
standards for the transmission of certain
notices and consent required for
distributions through electronic media.
Commentators stated that the guidelines
set forth in the proposed regulations
facilitate the expanded use of new
technologies and recognize the
likelihood of future technological
advances in plan administration.
Accordingly, the final regulations retain
this approach and:
• Permit electronic delivery of the
notice of distribution options and the
right to defer distribution under section
411(a)(11), the rollover notice under
section 402(f), and the withholding
notice under section 3405(e)(10)(B);

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Federal Register / Vol. 65, No. 26 / Tuesday, February 8, 2000 / Rules and Regulations

• Permit electronic transmission of
participant consent to a distribution
under section 411(a)(11); and
• Permit a plan to provide the section
411(a)(11) and section 402(f) notices
more than 90 days before a distribution,
if the plan provides a summary of the
notices within 90 days before the
distribution.
Notices Under Sections 402(f),
411(a)(11), and 3405(e)(10)(B)
1. Use of Electronic Media for Delivery
of Notices
The proposed regulations provide
that, in general, a plan may furnish a
notice required under section 402(f),
411(a)(11), or 3405(e)(10)(B) either on a
written paper document or through an
electronic medium reasonably
accessible to the participant to whom
the notice is given. The proposed
regulations require that any electronic
notice be provided under a system
reasonably designed to give the notice
in a manner no less understandable to
the participant than a written paper
document and that the participant be
advised of the right to request and to
receive a copy of the notice on a written
paper document without charge. The
final regulations adopt these rules
without change.
One commentator noted that the
proposed regulations do not define the
term reasonably accessible and
suggested that the final regulations
require that participants have effective
access at their place of work to any
electronic medium used to deliver the
notices under sections 402(f), 411(a)(11),
and 3405(e)(10)(B). The IRS and
Treasury, after further consideration,
believe that the reasonably accessible
standard protects the interests of plan
participants and, therefore, have
retained the proposed terminology.
The same commentator raised more
general concerns with the use of
electronic media to transmit notices.
This commentator argued that an
electronic notice should be ‘‘actually
received (not just sent or available) and
read by the participant, be permanently
accessible, and easily converted to a
printed document, by using an available
printer and/or through a request for a
paper writing.’’ In response to these
concerns, the IRS and Treasury reiterate
the view, expressed in the preamble to
the proposed regulations, that the legal
standards for the delivery of
distribution-related notices under
sections 402(f), 411(a)(11), and
3405(e)(10)(B) should be the same
regardless of the medium of delivery.
Additionally, the IRS and Treasury note
that many of the concerns raised by this

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commentator about electronic media are
adequately addressed by the
requirement in the regulations that
participants always have the right to
request and to receive a written paper
notice without charge.
Several commentators objected to the
requirement that participants be able to
receive the notice on a written paper
document upon request. These
commentators argued that simply
making written paper notices available
through an electronic medium (such as
a printing option on an e-mail system or
a plan web site) protects the interests of
participants in having access to written
paper notices without placing the
burden of providing written paper
notices on plan sponsors and
administrators. However, the IRS and
Treasury believe that the right to request
and to receive a written paper notice is
an important fail-safe for paperless plan
administration. The requirement
ensures that no participant is denied
ready access to a usable copy of a
required distribution notice, and it
limits the need for the IRS and Treasury
to regulate the manner in which written
paper notices are made available
through electronic media. The IRS and
Treasury believe that the burden for
plan sponsors and administrators to
maintain a process that will generate
written paper notices upon request is
outweighed by the important safeguards
provided by the requirement. In
addition, as indicated in the preamble to
the proposed regulations, the written
paper notice provided on request need
not be identical to the electronic notice.
Therefore, the written paper notice can
be either a printed version of the
electronic notice or a separate notice
prepared for distribution on paper. In
light of these considerations, the
requirement is retained in the final
regulations.
One commentator requested
clarification that the proposed
regulations under section 3405 would
permit the electronic delivery of the
annual notice described in section
3405(e)(10)(B)(i)(III) (which is provided
to recipients of periodic payments). The
proposed regulations, as written, apply
to that annual notice; however, the final
regulations make this point expressly.
One commentator asked that the
proposed regulations be amended to
provide for electronic withholding
elections under section 3405 in addition
to electronic transmission of notices
under section 3405. It is unclear what,
if any, utility such a change in the
regulations would have in light of the
ability to use electronic media for
transmission of Form W–4P, as set out
in Announcement 99–6. Therefore, no

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change has been made to the regulations
on this point.
2. Flexibility for Timing Requirement in
Providing Notices
Commentators favored the provision
in the proposed regulations that
provided flexibility with respect to the
90-day period under sections 402(f) and
411(a)(11) by providing an alternative
timing rule. Under this alternative
timing rule, a plan may give the full
section 402(f) and section 411(a)(11)
notices more than 90 days before the
distribution and provide the participant
a summary of the notice during the 90/
30-day period under those sections. The
full notice is not required to be provided
on a regular periodic basis and may be
provided in connection with other
materials (for example, in the summary
plan description or in a brochure
describing plan distribution features),
but it must be updated (and provided to
the participant) as necessary to ensure
accuracy as of the time the summary is
given. The proposed regulations provide
that the summary notice must set out
the principal provisions of the full
notice, must refer the participant to the
most recent occasion on which the full
notice was provided, and must advise
the participant of the right to request
and to receive a copy of the full notice
without charge.
Several commentators interpreted the
requirement in the proposed regulations
that the summary refer the participant to
the most recent occasion on which the
full notice was provided as requiring an
indication of the precise date on which
the participant was given the full notice
and the precise location of the full
notice if it was provided in a document
containing other information (such as
the summary plan description). These
commentators argued that this
information may vary on a participantby-participant basis and so imposes a
considerable administrative burden on
plan sponsors and administrators.1
The IRS and Treasury did not intend
for the proposed regulations to be
construed as requiring individualized
information about the full notice.
Therefore, the final regulations clarify,
first, that the summary must refer
participants to the most recent version
of the full notice. The purpose of this
rule is to minimize confusion among
participants if more than one version of
a full notice has been provided in the
1 For example, many plan sponsors provide a
copy of the summary plan description to each
employee when the employee is first hired. If the
full notice is provided through the summary plan
description, the precise date on which the full
notice was last provided could differ for each
participant.

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Federal Register / Vol. 65, No. 26 / Tuesday, February 8, 2000 / Rules and Regulations
past. In many of those cases, this
reference could reasonably be made by
calendar year (for example, by referring
to the 1999 version of the section 402(f)
notice). If more than one version of a
distribution notice was provided in a
single calendar year, more precise
reference should be made (for example,
by referring to the May 1999 version of
the section 402(f) notice). Reference to
the notice by month or year would not
be necessary if only one version of the
notice had been provided in the past. If
the full notice were constantly available
(for example, a notice that is available
on a plan web site and is kept up-todate), it would be adequate to state that
fact.
Additionally, the regulations have
been modified to provide that, in the
case of a full notice provided in a
document containing other information,
the summary must identify that
document and must provide a
reasonable indication of where the
notice may be found in the document.
This requirement could be satisfied
through a number of means, including
identification of page number, section
heading, an index reference, the title of
the notice, or any other reference that
would reasonably direct the participant
to the notice.
One commentator objected to the
alternative timing rule set out in the
proposed regulations. This commentator
argued that distribution-related notices
should be tied to a specific event (such
as a participant request for a distribution) and that ‘‘it is inappropriate to
provide a notice of the notice when
using electronic or other new
technologies when it is just as easy to
provide the actual notice itself.’’ The
IRS and Treasury agree that the
information contained in the section
402(f) and section 411(a)(11) notices
should be provided to a participant in
connection with the participant’s
contemplation of a distribution, but the
IRS and Treasury believe that providing
a summary of a previously provided
notice and informing the participant of
the right to request and to receive the
full notice adequately protect the
interests of participants in this regard.
The preamble to the proposed
regulations includes an example of a
summary section 402(f) notice provided
through an automated telephone system.
Many commentators raised questions
about this example. Several
commentators argued that the sample
summary is too long and complex to be
of use in plan administration; others
argued that it does not include reference
to every potentially applicable rule
concerning the taxation of plan
distributions (for example, it does not

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refer to the taxation of net unrealized
appreciation on the distribution of
employer securities). Commentators also
inquired about the legal status of the
example because of its placement in the
preamble. The example was intended
merely to illustrate a summary notice
that, in the view of the IRS and
Treasury, satisfies the requirements of
the proposed regulations. It was not
intended as a model summary or as the
exclusive form for such a summary.
Although the example is not restated in
these final regulations, the IRS and
Treasury are considering whether to
issue additional guidance providing
additional examples of summary
notices. In this regard, the IRS and
Treasury will solicit comments from
interested parties regarding the
development of those examples and will
invite interested parties to submit draft
summary notices to assist in the
development of that guidance.
Consent Under Section 411(a)(11)
Consistent with the proposed
regulations, the final regulations
provide that, in general, a plan may
receive a participant’s consent either on
a written paper document or through an
electronic medium reasonably
accessible to the participant. As in the
case of participant notices, the
regulations generally do not categorize
particular electronic media as either
permissible or impermissible for this
purpose and do not prescribe detailed,
media-specific rules. The standards are
intended to parallel the key attributes of
participant consent provided on written
paper documents without imposing
more stringent requirements on
electronic consents. The proposed
regulations provide that participant
consent transmitted through an
electronic medium must be given under
a system that is reasonably designed to
preclude an individual other than the
participant from giving the consent and
that provides the participant a
reasonable opportunity to review and to
confirm, modify, or rescind the terms of
the distribution before the consent to
the distribution becomes effective.
Comments on this portion of the
proposed regulations were generally
favorable, and no change has been made
in the final regulations.
One commentator, however, objected
outright to the use of electronic media
for the transmission of participant
consent and argued that, at a minimum,
such consent ‘‘should not be effective
until after a written confirmation is
received and the participant has a
specified amount of time to revoke it.’’
This commentator also argued that the
final regulations should prohibit the use

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6003

of automated telephone systems to
provide distribution-related notices and
to receive participant consent unless an
automatic, mandatory written
confirmation of the participant’s
election of a distribution option is
required along with a seven-day right of
revocation. The IRS and Treasury
concluded that it is not advisable to
impose new revocation rules based on
the medium through which a
participant consents to a distribution.
Both the proposed regulations and the
final regulations require that the terms
of any consent made through an
electronic medium be confirmed to the
participant. Additionally, the IRS and
Treasury do not believe that a right of
revocation for a defined period after
consent is given is more necessary or
appropriate in the case of consent made
through an electronic medium than it is
in the case of consent made through a
written paper document. More
generally, the IRS and Treasury do not
believe that the use of electronic media
is improper or inappropriate for the
transmission of a participant’s consent
under section 411(a)(11). If the
requirements of the regulations are
satisfied, consent provided in that
manner should reflect the considered
wishes of the participant as reliably as
a consent provided through a written
paper document.
Changes to the Examples in the
Regulations
Several commentators expressed
concern about details in the examples
illustrating the proposed regulations for
distribution notices and consent. One of
the concerns involved the statement in
the examples that a participant who
wished to change a PIN electronically
would be unable to proceed with a
distribution transaction until the plan
sent a confirmation of the change to the
participant. Commentators stated that
the electronic systems maintained by
plan sponsors and administrators use an
array of security features to ensure
participant identity, some of which
might permit an electronic transaction
to proceed after a PIN change. Although
the prohibition on proceeding with an
electronic transaction after a PIN change
was intended only to illustrate a
commonly used system and not as a
substantive requirement, the final
regulations omit the statement from the
examples for the sake of clarity. Of
course, the examples in the final
regulations presuppose that plan
sponsors and administrators maintain
adequate measures to ensure participant
identity when a PIN is changed.

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Notice 99–1 and Announcement 99–6
Commentators expressed support for
Notice 99–1, which indicates that a
qualified plan will not fail to meet the
requirements of section 401(a) (and that
a qualified cash-or-deferred arrangement
will not fail to meet the requirements of
section 401(k)) merely because it
permits a participant or beneficiary to
use electronic media to effect a
transaction for which no specific
provision of the Code, the regulations,
or other guidance of general
applicability sets forth rules or
standards regarding the media through
which it may be conducted.
Announcement 99–6 permits the
electronic transmission of Form W–4P.
Commentators asked for clarification
whether Form W–4P may be transmitted
through a telephone system. The
underlying standards for the electronic
transmission of Form W–4P are
intended to be the same as those for the
electronic transmission of Form W–4, as
set out in § 31.3402(f)(5)–1(c). The
preamble to the proposed regulations for
the electronic transmission of Form W–
4 indicates that ‘‘[i]f an employer
chooses to establish an electronic
system, the employer will be free to
determine the type of system (such as
telephone or computer) or systems
available to its employees.’’ (59 FR
18508 (Apr. 15, 1994)). Therefore, the
use of a telephone system for electronic
transmission of Form W–4P, if
otherwise consistent with
Announcement 99–6 and
§ 31.3402(f)(5)–1(c), is permissible.
Commentators also asked the IRS and
Treasury to reconsider the requirement,
stated in Announcement 99–6, that the
electronic signature on Form W–4P be
the final entry in the submission of the
form. These commentators argue that
this effectively requires the participant
in most cases to enter a PIN at both the
beginning and the end of a transaction
that involves the use of an electronic
Form W–4P. The IRS and Treasury are
considering this issue and anticipate
issuing additional guidance on this
question.
Scope of These Regulations
These regulations do not address the
application of Title I of ERISA (except
for section 203(e)) to the use of
electronic media for any plan
communication or transaction. Several
commentators requested that the
regulations be expanded to include
matters not covered by the proposed
regulations. Most notably,
commentators asked that the IRS and
Treasury provide guidance on the use of
electronic media for plan loans under

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section 72(p), nondiscrimination safeharbor notices under sections 401(k)(12)
and 401(m)(11), notices under section
204(h) of ERISA, and distribution
notices, elections, and spousal consents
governed by sections 401(a)(11) and
section 417.
The IRS and Treasury are actively
considering comments submitted on
regulations proposed under section
72(p) and expect to issue additional
guidance under that section. It is
anticipated that any guidance on the use
of electronic media in connection with
plan loans would be issued in
connection with that additional
guidance. As the IRS and Treasury have
noted in the past, notices under sections
401(k)(12) and 401(m)(11) and ERISA
section 204(h) present legal issues
distinct from those presented by notices
under sections 402(f), 411(a)(11), and
3405(e)(10)(B). Notice 2000–3 (2000–4
I.R.B.
) provides that, pending
further guidance, notices under sections
401(k)(12) and 401(m)(11) may be
issued through electronic media if
standards set forth in Notice 2000–3
which are similar to those applicable to
notices under these regulations, are
satisfied. Because of the unique
considerations applicable to notices
under ERISA section 204(h), guidance
with respect to the use of electronic
media in connection with section 204(h)
notices is not being issued at this time.
Finally, regarding notices, elections,
and spousal consents governed by
sections 401(a)(11) and section 417, the
IRS and Treasury note that the statutory
requirement that spousal consent be
witnessed either by a notary public or
a plan representative appears to
presuppose that a spouse be in the
physical presence of the notary public
or the plan representative at the time
consent is given. This appears to place
significant limitations on the utility of
electronic media in effecting spousal
consent.2 Thus, it is unclear what
guidance the IRS and Treasury could
issue that would meaningfully facilitate
paperless distributions in the case of
plans subject to sections 401(a)(11) and
417.

Special Analyses

Reliance

26 CFR Part 35

ll

Plan sponsors and administrators may
rely on these final regulations for
guidance for distributions made prior to
the effective date.
2 One

commentator suggested that electronic
transmission of spousal consent be permitted if the
plan has ‘‘reasonable certainty that the spouse has
consented.’’ That suggested standard appears to fall
far short of the witnessing requirement specifically
set forth in the statute.

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It has been determined that this
Treasury decision is not a significant
regulatory action as defined in
Executive Order 12866. Therefore, a
regulatory impact analysis is not
required. It is hereby certified that these
regulations will not have a significant
economic impact on a substantial
number of small entities. This
certification is based on the fact that the
regulations provide paperless
alternatives to notices that otherwise
must be sent as written paper
documents. It is anticipated that most
small businesses affected by these
regulations will be sponsors of
retirement plans. Since these notices are
provided only upon distributions and
since, in the case of a small plan, there
will be relatively few distributions per
year, small plans that implement a
paperless system for delivering these
notices will likely contract for them as
part of a paperless system for
distributions offered by outside vendors.
The paperless delivery of the notices
will not add more than a minor
increment to the cost of these
distribution systems or the plan sponsor
will continue to use a paper-based
system. Accordingly, a Regulatory
Flexibility Analysis is not required.
Pursuant to section 7805(f) of the Code,
the notice of proposed rulemaking
preceding these regulations was
submitted to the Chief Counsel for
Advocacy of the Small Business
Administration for comment on its
impact on small business.
Drafting Information
The principal author of these
regulations is Catherine Livingston
Fernandez, Office of the Associate Chief
Counsel (Employee Benefits and Exempt
Organizations), IRS. However, personnel
from other offices of the IRS and
Treasury Department participated in
their development.
List of Subjects
26 CFR Part 1
Income taxes, Reporting and
recordkeeping requirements.
Employment taxes, Income taxes,
Reporting and recordkeeping
requirements.
26 CFR Part 602
Reporting and recordkeeping
requirements.
Amendments to the Regulations
Accordingly, 26 CFR parts 1, 35, and
602 are amended as follows:

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PART 1—INCOME TAXES
Paragraph 1. The authority citation
for part 1 continues to read, in part, as
follows:
Authority: 26 U.S.C. 7805 * * *

Par. 2. Section 1.402(f)–1 is amended
by:
1. Revising Q&A–2.
2. Adding Q&A–5 and Q&A–6.
The revision and additions read as
follows:
§ 1.402(f)—1 Required explanation of
eligible rollover distributions; questions
and answers.

*

*
*
*
*
Q–2: When must the plan
administrator provide the section 402(f)
notice to a distributee?
A–2: The plan administrator must
provide the section 402(f) notice to a
distributee at a time that satisfies either
paragraph (a) or (b) of this Q&A–2.
(a) This paragraph (a) is satisfied if the
plan administrator provides a
distributee with the section 402(f) notice
no less than 30 days and no more than
90 days before the date of a distribution.
However, if the distributee, after having
received the section 402(f) notice,
affirmatively elects a distribution, a plan
will not fail to satisfy section 402(f)
merely because the distribution is made
less than 30 days after the section 402(f)
notice was provided to the distributee,
provided the plan administrator clearly
indicates to the distributee that the
distributee has a right to consider the
decision of whether or not to elect a
direct rollover for at least 30 days after
the notice is provided. The plan
administrator may use any method to
inform the distributee of the relevant
time period, provided that the method
is reasonably designed to attract the
attention of the distributee. For
example, this information could be
either provided in the section 402(f)
notice or stated in a separate document
(e.g., attached to the election form) that
is provided at the same time as the
notice. For purposes of satisfying the
requirement in the first sentence of
paragraph (a) of this Q&A–2, the plan
administrator may substitute the
annuity starting date, within the
meaning of § 1.401(a)–20, Q&A–10, for
the date of the distribution.
(b) This paragraph (b) is satisfied if
the plan administrator—
(1) Provides a distributee with the
section 402(f) notice;
(2) Provides the distributee with a
summary of the section 402(f) notice
within the time period described in
paragraph (a) of this Q&A–2; and
(3) If the distributee so requests after
receiving the summary described in

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paragraph (b)(2) of this Q&A–2, provides
the section 402(f) notice to the
distributee without charge and no less
than 30 days before the date of a
distribution (or the annuity starting
date), subject to the rules for the
distributee’s waiver of that 30-day
period. The summary described in
paragraph (b)(2) of this Q&A–2 must set
forth a summary of the principal
provisions of the section 402(f) notice,
must refer the distributee to the most
recent version of the section 402(f)
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 distributee that, upon request, a
copy of the section 402(f) notice will be
provided without charge.
*
*
*
*
*
Q–5: Will the requirements of section
402(f) be satisfied if a plan administrator
provides a distributee with the section
402(f) notice or the summary of the
notice described in paragraph (b)(2) of
Q&A–2 of this section other than
through a written paper document?
A–5: A plan administrator may
provide a distributee with the section
402(f) notice or the summary of that
notice described in paragraph (b)(2) of
Q&A–2 of this section either on a
written paper document or through an
electronic medium reasonably
accessible to the distributee. A notice or
summary provided through an
electronic medium must be provided
under a system that satisfies the
following requirements:
(a) The system must be reasonably
designed to provide the notice or
summary in a manner no less
understandable to the distributee than a
written paper document.
(b) At the time the notice or summary
is provided, the distributee must be
advised that the distributee may request
and receive the notice on a written
paper document at no charge, and, upon
request, that document must be
provided to the distributee at no charge.
Q–6: Are there examples that
illustrate the provisions of Q&A–2 and
Q&A–5 of this section?
A–6: The following examples
illustrate the provisions of Q&A–2 and
Q&A–5 of this section:
Example 1. (i) A qualified plan (Plan A)
permits participants to request distributions
by e-mail. Under Plan A’s system for such
transactions, a participant must enter his or
her account number and personal
identification number (PIN); this information
must match that in Plan A’s records in order

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6005

for the transaction to proceed. If a participant
requests a distribution from Plan A by e-mail
and the distribution is an eligible rollover
distribution, the plan administrator provides
the participant with a section 402(f) notice by
e-mail. The plan administrator also advises
the participant that he or she may request the
section 402(f) notice on a written paper
document and that, if the participant requests
the notice on a written paper document, it
will be provided at no charge. To proceed
with the distribution by e-mail, the
participant must acknowledge receipt,
review, and comprehension of the section
402(f) notice.
(ii) In Example 1, Plan A does not fail to
satisfy the notice requirement of section
402(f) merely because the notice is provided
to the participant other than through a
written paper document.
Example 2. (i) A qualified plan (Plan B)
permits participants to request distributions
through the Plan B web site (Internet or
intranet). Under Plan B’s system for such
transactions, a participant must enter his or
her account number and personal
identification number (PIN); this information
must match that in Plan B’s records in order
for the transaction to proceed. A participant
may request a distribution from Plan B by
following the applicable instructions on the
Plan B web site. After the participant has
requested a distribution that is an eligible
rollover distribution, the participant is
automatically shown a page on the web site
containing a section 402(f) notice. Although
this page of the web site may be printed, the
page also advises the participant that he or
she may request the section 402(f) notice on
a written paper document by calling a
telephone number indicated on the web page
and that, if the participant requests the notice
on a written paper document, it will be
provided at no charge. To proceed with the
distribution by e-mail, the participant must
acknowledge receipt, review, and
comprehension of the section 402(f) notice.
(ii) In this Example 2, Plan B does not fail
to satisfy the notice requirement of section
402(f) merely because the notice is provided
to the participant other than through a
written paper document.
Example 3. (i) A qualified plan (Plan C)
permits participants to request distributions
through Plan C’s automated telephone
system. Under Plan C’s system for such
transactions, a participant must enter his or
her account number and personal
identification number (PIN); this information
must match that in Plan C’s records in order
for the transaction to proceed. Plan C
provides the section 402(f) notice in the
summary plan description, the most recent
version of which was distributed to
participants in 1997. A participant may
request a distribution from Plan C by
following the applicable instructions on the
automated telephone system. In 1999, a
participant, using Plan C’s automated
telephone system, requests a distribution that
is an eligible rollover distribution. The
automated telephone system refers the
participant to the most recent version of the
section 402(f) notice which was provided in
the summary plan description, informs the
participant where the section 402(f) notice

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may be located in the summary plan
description, and provides an oral summary of
the material provisions of the section 402(f)
notice. The system also advises the
participant that the participant may request
the section 402(f) notice on a written paper
document and that, if the participant requests
the notice on a written paper document, it
will be provided at no charge. Before
proceeding with the distribution, the
participant must acknowledge receipt,
review, and comprehension of the summary.
Under Plan C’s system for processing such
transactions, the participant’s distribution
will be made no more than 90 days and no
fewer than 30 days after the participant
requests the distribution and receives the
summary of the section 402(f) notice (unless
the participant waives the 30-day period).
(ii) In this Example 3, Plan C does not fail
to satisfy the notice requirement of section
402(f) merely because Plan C provides a
summary of the section 402(f) notice or
merely because the summary is provided to
the participant other than through a written
paper document.
Example 4. (i) Same facts as Example 3,
except that, pursuant to Plan C’s system for
processing such transactions, a participant
who so requests is transferred to a customer
service representative whose conversation
with the participant is recorded. The
customer service representative provides the
summary of the section 402(f) notice by
reading from a prepared text.
(ii) In this Example 4, Plan C does not fail
to satisfy the notice requirement of section
402(f) merely because Plan C provides a
summary of the section 402(f) notice or
merely because the summary of the section
402(f) notice is provided to the participant
other than through a written paper
document.
Example 5. (i) Same facts as Example 3,
except that Plan C does not provide the
section 402(f) notice in the summary plan
description. Instead, the automated
telephone system reads the section 402(f)
notice to the participant.
(ii) In this Example 5, Plan C does not
satisfy the notice requirement of section
402(f) because oral delivery alone of the
section 402(f) notice through the automated
telephone system is not sufficient.
Example 6. (i) The facts are the same as in
Example 1, except that Participant D
requested a distribution by e-mail, then
terminated employment, and, following the
termination, no longer has reasonable access
to Plan A e-mail.
(ii) In this Example 6, Plan A does not
satisfy the notice requirement of section
402(f) because the electronic medium
through which the notice is provided is not
reasonably accessible to Participant D. Plan
A must provide the section 402(f) notice to
Participant D in a written paper document or
by an electronic means that is reasonably
accessible to Participant D.

Par. 3. Section 1.411(a)–11 is
amended by:
1. Revising paragraphs (c)(2)(i) and
(iii).
2. Removing the language ‘‘Written
consent’’ in paragraph (c)(2)(ii) and
(c)(3) and adding ‘‘Consent’’ in its place.

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3. Adding paragraphs (f) and (g).
The revisions and additions read as
follows:
§ 1.411(a)–11 Restriction and valuation of
distributions.

*

*
*
*
*
(c) * * *
(2) Consent. (i) No consent is valid
unless the participant has received a
general description of the material
features of the optional forms of benefit
available under the plan. 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. Furthermore,
consent is not valid if a significant
detriment is imposed under the plan on
any participant who does not consent to
a distribution. Whether or not a
significant detriment is imposed shall
be determined by the Commissioner by
examining the particular facts and
circumstances.
*
*
*
*
*
(iii) A plan must provide a participant
with notice of the rights specified in this
paragraph (c)(2) at a time that satisfies
either paragraph (c)(2)(iii)(A) or (B) of
this section:
(A) This paragraph (c)(2)(iii)(A) is
satisfied if the plan provides a
participant with notice of the rights
specified in this paragraph (c)(2) no less
than 30 days and no more than 90 days
before the date the distribution
commences. However, if the participant,
after having received this notice,
affirmatively elects a distribution, a plan
will not fail to satisfy the consent
requirement of section 411(a)(11) merely
because the distribution commences
less than 30 days after the notice was
provided to the participant, provided
the plan administrator clearly indicates
to the participant that the participant
has a right to at least 30 days to consider
whether to consent to the distribution.
(B) This paragraph (c)(2)(iii)(B) is
satisfied if the plan—
(1) Provides the participant with
notice of the rights specified in this
paragraph (c)(2);
(2) Provides the participant with a
summary of the notice within the time
period described in paragraph
(c)(2)(iii)(A) of this section; and
(3) If the participant so requests after
receiving the summary described in
paragraph (c)(2)(iii)(B)(2) of this section,
provides the notice to the participant
without charge and no less than 30 days
before the date the distribution
commences, subject to the rules for the
participant’s waiver of that 30-day
period. The summary described in
paragraph (c)(2)(iii)(B)(2) of this section
must advise the participant of the right,

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if any, to defer receipt of the
distribution, 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.
*
*
*
*
*
(f) Medium for notice and consent—
(1) Notice. The notice of a participant’s
rights described in paragraph (c)(2) of
this section or the summary of that
notice described in paragraph
(c)(2)(iii)(B)(2) of this section may be
provided either on a written paper
document or through an electronic
medium reasonably accessible to the
participant. A notice or summary
provided through an electronic medium
must be provided under a system that
satisfies the following requirements:
(i) The system must be reasonably
designed to provide the notice or
summary in a manner no less
understandable to the participant than a
written paper document.
(ii) At the time the notice or summary
is provided, the participant must be
advised that he or she may request and
receive the notice on a written paper
document at no charge, and, upon
request, that document must be
provided to the participant at no charge.
(2) Consent. The consent described in
paragraphs (c)(2) and (3) of this section
may be given either on a written paper
document or through an electronic
medium reasonably accessible to the
participant. A consent given through an
electronic medium must be given under
a system that satisfies the following
requirements:
(i) The system must be reasonably
designed to preclude any individual
other than the participant from giving
the consent.
(ii) The system must provide the
participant with a reasonable
opportunity to review and to confirm,
modify, or rescind the terms of the
distribution before the consent to the
distribution becomes effective.
(iii) The system must provide the
participant, within a reasonable time
after the consent is given, a
confirmation of the terms (including the
form) of the distribution either on a
written paper document or through an
electronic medium under a system that

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satisfies the requirements of paragraph
(f)(1) of this section.
(g) Examples. The provisions of
paragraph (f) of this section are
illustrated by the following examples:
Example 1. (i) A qualified plan (Plan A)
permits participants to request distributions
by e-mail. Under Plan A’s system for such
transactions, a participant must enter his or
her account number and personal
identification number (PIN); this information
must match that in Plan A’s records in order
for the transaction to proceed. If a participant
requests a distribution from Plan A by e-mail,
the plan administrator provides the
participant with a section 411(a)(11) notice
by e-mail. The plan administrator also
advises the participant by e-mail that he or
she may request the section 411(a)(11) notice
on a written paper document and that, if the
participant requests the notice on a written
paper document, it will be provided at no
charge. To proceed with the distribution by
e-mail, the participant must acknowledge
receipt, review, and comprehension of the
section 411(a)(11) notice and must consent to
the distribution within the time required
under section 411(a)(11). Within a reasonable
time after the participant’s consent by e-mail,
the plan administrator, by e-mail, sends
confirmation of the terms (including the
form) of the distribution to the participant
and advises the participant that he or she
may request the confirmation on a written
paper document that will be provided at no
charge.
(ii) In this Example 1, Plan A does not fail
to satisfy the notice or consent requirement
of section 411(a)(11) merely because the
notice and consent are provided other than
through written paper documents.
Example 2. (i) Same facts as Example 1,
except that, instead of sending a confirmation
of the distribution by e-mail, the plan
administrator, within a reasonable time after
the participant’s consent, sends the
participant an account statement for the
period that includes information reflecting
the terms of the distribution.
(ii) In this Example 2, Plan A does not fail
to satisfy the consent requirement of section
411(a)(11) merely because the consent is
provided other than through a written paper
document.
Example 3. (i) A qualified plan (Plan B)
permits participants to request distributions
through the Plan B web site (Internet or
intranet). Under Plan B’s system for such
transactions, a participant must enter his or
her account number and personal
identification number (PIN); this information
must match that in Plan B’s records in order
for the transaction to proceed. A participant
may request a distribution from Plan B by
following the applicable instructions on the
Plan B web site. After the participant has
requested a distribution, the participant is
automatically shown a page on the web site
containing a section 411(a)(11) notice.
Although this page of the web site may be
printed, the page also advises the participant
that he or she may request the section
411(a)(11) notice on a written paper
document by calling a telephone number
indicated on the web page and that, if the

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participant requests the notice on a written
paper document, it will be provided at no
charge. To proceed with the distribution by
e-mail, the participant must acknowledge
receipt, review, and comprehension of the
section 411(a)(11) notice and must consent to
the distribution within the time required
under section 411(a)(11). The web site
requires the participant to review and
confirm the terms (including the form) of the
distribution before the transaction is
completed. After the participant has given
consent via e-mail, the Plan B web site
confirms the distribution to the participant
and advises the participant that he or she
may request the confirmation on a written
paper document that will be provided at no
charge.
(ii) In this Example 3, Plan B does not fail
to satisfy the notice or consent requirement
of section 411(a)(11) merely because the
notice and consent are provided other than
through written paper documents.
Example 4. (i) A qualified plan (Plan C)
permits participants to request distributions
through Plan C’s automated telephone
system. Under Plan C’s system for such
transactions, a participant must enter his or
her account number and personal
identification number (PIN); this information
must match that in Plan C’s records in order
for the transaction to proceed. Plan C
provides only the following distribution
options: a lump sum and annual installments
over 5, 10, or 20 years. A participant may
request a distribution from Plan C by
following the applicable instructions on the
automated telephone system. After the
participant has requested a distribution, the
automated telephone system reads the
section 411(a)(11) notice to the participant.
The automated telephone system also advises
the participant that he or she may request the
notice on a written paper document and that,
if the participant requests the notice on a
written paper document, it will be provided
at no charge. Before proceeding with the
distribution transaction, the participant must
acknowledge receipt, review, and
comprehension of the section 411(a)(11)
notice and must consent to the distribution
within the time required under section
411(a)(11). The automated telephone system
requires the participant to review and
confirm the terms (including the form) of the
distribution before the transaction is
completed. After the participant has given
consent, the automated telephone system
confirms the distribution to the participant
and advises the participant that he or she
may request the confirmation on a written
paper document that will be provided at no
charge. Because Plan C has relatively few and
simple distribution options, the provision of
the section 411(a)(11) notice over the
automated telephone system is no less
understandable to the participant than a
written paper notice.
(ii) In this Example 4, Plan C does not fail
to satisfy the notice or consent requirement
of section 411(a)(11) merely because the
notice and consent are provided other than
through written paper documents.
Example 5. (i) Same facts as Example 4,
except that, pursuant to Plan C’s system for
processing such transactions, a participant

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6007

who so requests is transferred to a customer
service representative whose conversation
with the participant is recorded. The
customer service representative provides the
section 411(a)(11) notice from a prepared text
and processes the participant’s distribution
in accordance with predetermined
instructions of the plan administrator.
(ii) In this Example 5, Plan C does not fail
to satisfy the notice or consent requirement
of section 411(a)(11) merely because the
notice and consent are provided other than
through written paper documents.
Example 6. (i) Same facts as Example 1,
except that Participant D requested a
distribution by e-mail, then terminated
employment and, following the termination,
no longer has access to e-mail.
(ii) In this Example 6, Plan A does not
satisfy the notice or consent requirement of
section 411(a)(11) because the electronic
medium through which the notice is
provided is not reasonably accessible to
Participant D. Plan A must provide
Participant D the section 411(a)(11) notice in
a written paper document or by an electronic
means that is reasonably accessible to
Participant D.

Par. 4. The heading for part 35 is
revised to read as follows:
PART 35—EMPLOYMENT TAX AND
COLLECTION OF INCOME TAX AT
SOURCE REGULATIONS UNDER THE
TAX EQUITY AND FISCAL
RESPONSIBILITY ACT OF 1982
Par. 5. The authority citation for part
35 is revised to read as follows:
Authority: 26 U.S.C. 6047(e), 7805; 68A
Stat. 917; 96 Stat. 625; Public Law 97–248 (96
Stat. 623).
Section 35.3405–1 also issued under 26
U.S.C. 3405(e)(10)(B)(iii).
Section 35.3405–1T also issued under 26
U.S.C. 3405(e)(10)(B)(iii).

Par. 6. Redesignate § 35.3405–1T and
revise the heading to read as follows:
§ 35.3405–1T Questions and answers
relating to withholding on pensions,
annuities, and certain other deferred
income (temporary regulations).

*

*

*

*

*

Par. 7. A new § 35.3405–1 is added to
read as follows:
§ 35.3405–1 Questions and answers
relating to withholding on pensions,
annuities, and certain other deferred
income.

The following questions and answers
relate to withholding on pensions,
annuities, and other deferred income
under section 3405 of the Internal
Revenue Code of 1986, as added by
section 334 of the Tax Equity and Fiscal
Responsibility Tax Act of 1982 (Public
Law 97–248) (TEFRA).
a–1 through d–34 [Reserved] For
further guidance, see § 35.3405–1T.

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d–35. Q. Through what medium may
a payor provide the notice required
under section 3405 to a payee?
A. A payor may provide the notice
required under section 3405 (including
the abbreviated notice described in d–27
and the annual notice described in d–
31) to a payee either on a written paper
document or through an electronic
medium reasonably accessible to the
payee. A notice provided through an
electronic medium must be provided
under a system that satisfies the
following requirements:
(a) The system must be reasonably
designed to provide the notice in a
manner no less understandable to the
payee than a written paper document.
(b) At the time the notice is provided,
the payee must be advised that the
payee may request and receive the
notice on a written paper document at
no charge, and, upon request, that
document must be provided to the
payee at no charge.
d–36. Q. Are there examples that
illustrate the provisions of d–35 of this
section?
A. The provisions of d–35 of this
section are illustrated by the following
examples:
Example 1. (i) An employer deferred
compensation plan (Plan A) permits
participants to request distributions by email. Under Plan A’s system for such
transactions, a participant must enter his or
her account number and personal
identification number (PIN); this information
must match that in Plan A’s records in order
for the transaction to proceed. The plan
administrator is the payor. If a participant
requests a distribution from Plan A by e-mail,
the plan administrator provides the
participant with the notice required under
section 3405 by e-mail. The plan
administrator also advises the participant by
e-mail that he or she may request the notice
on a written paper document and that, if the
participant requests the notice on a written
paper document, it will be provided at no
charge. To proceed with the distribution by
e-mail, the participant must acknowledge
receipt, review, and comprehension of the
notice.
(ii) In this Example 1, the plan
administrator does not fail to satisfy the
notice requirement of section 3405 merely
because the notice is provided to the
participant other than through a written
paper document.
Example 2. (i) An employer deferred
compensation plan (Plan B) permits
participants to request distributions through
the Plan B web site (Internet or intranet).
Under Plan B’s system for such transactions,
a participant must enter his or her account
number and personal identification number
(PIN); this information must match that in
Plan B’s records in order for the transaction
to proceed. The plan administrator is the
payor. A participant may request a
distribution from Plan B by following the

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applicable instructions on the Plan B web
site. After the participant has requested a
distribution, the participant is automatically
shown a page on the web site containing the
notice required by section 3405. Although
this page of the web site may be printed, the
page also advises the participant that he or
she may request the notice on a written paper
document and that, if the participant requests
the notice on a written paper document, it
will be provided at no charge. To proceed
with the distribution through the web site,
the participant must acknowledge receipt,
review, and comprehension of the notice.
(ii) In this Example 2, the plan
administrator does not fail to satisfy the
notice requirement of section 3405 merely
because the notice is provided to the
participant other than through a written
paper document.
Example 3. (i) An employer deferred
compensation plan (Plan C) permits
participants to request distributions through
Plan C’s automated telephone system. Under
Plan C’s system for such transactions, a
participant must enter his or her account
number and personal identification number
(PIN); this information must match that in
Plan C’s records in order for the transaction
to proceed. The plan administrator is the
payor. A participant may request a
distribution from Plan C by following the
applicable instructions on the automated
telephone system. After the participant has
requested a distribution, the automated
telephone system reads the notice required
by section 3405 to the participant. The
automated telephone system also advises the
participant that he or she may request the
notice on a written paper document and that,
if the participant requests the notice on a
written paper document, it will be provided
at no charge. Before proceeding with the
distribution transaction, the participant must
acknowledge receipt, review, and
comprehension of the notice.
(ii) In this Example 3, the plan
administrator does not fail to satisfy the
notice requirement of section 3405 merely
because the notice is provided to the
participant other than through a written
paper document.
Example 4. (i) Same facts as Example 3,
except that, pursuant to the system for
processing such transactions, a participant
who so requests is transferred to a customer
service representative whose conversation
with the participant is recorded. The
customer service representative provides the
notice required by section 3405 by reading
from a prepared text.
(ii) Conclusion. In this Example 4, the plan
administrator does not fail to satisfy the
notice requirement of section 3405 merely
because the notice is provided to the
participant other than through a written
paper document.
Example 5. (I) Same facts as Example 1,
except that Participant D requested a
distribution by e-mail and then terminated
employment. Participant D no longer has
access to e-mail.
(ii) In this Example 5, Plan A does not
satisfy the notice requirement of section 3405
because the electronic medium through
which the notice is provided is not

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reasonably accessible to Participant D. Plan
A must provide the notice required by
section 3405 to Participant D in a written
paper document or by an electronic medium
that is reasonably accessible to Participant D.

PART 602—OMB CONTROL NUMBERS
UNDER THE PAPERWORK
REDUCTION ACT
Par. 6. The authority citation for part
602 continues to read as follows:
Authority: 26 U.S.C. 7805.

Par. 7. In § 602.101, paragraph (b) is
amended by adding the following entry
in the table in numerical order to read
as follows:
§ 602.101

*

OMB Control numbers.

*
*
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Current
OMB control
No.

CFR part or section where
identified and described

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1.402(f)–1 .................................
1545–1632
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1.411(a)–11 ..............................
1545–1632
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Robert E. Wenzel,
Deputy Commissioner of Internal Revenue.
Approved: January 20, 2000.
Jonathan Talisman,
Acting Assistant Secretary of the Treasury.
[FR Doc. 00–1897 Filed 2–7–00; 8:45 am]
BILLING CODE 4830–01–U

ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 62
[Docket No. NH040–7167a; FRL–6532–2]

Approval and Promulgation of State
Plans for Designated Facilities and
Pollutants: New Hampshire; Plan for
Controlling Emissions From Existing
Hospital/Medical/Infectious Waste
Incinerators
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
SUMMARY: The United States
Environmental Protection Agency (EPA)
approves the Sections 111(d)/129 State
Plan submitted by the New Hampshire
Department of Environmental Services
(NHDES) on June 2, 1999. This State
Plan is for implementing and enforcing
provisions at least as protective as the
Emissions Guidelines (EG) applicable to

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