(a) General disclosure requirements. The administrator of an
employee benefit plan covered by Title I of the Act must disclose
certain material, including reports, statements, notices, and other
documents, to participants, beneficiaries and other specified
individuals. Disclosure under Title I of the Act generally takes three
forms. First, the plan administrator must, by direct operation of law,
furnish certain material to all participants covered under the plan and
beneficiaries receiving benefits under the plan (other than
beneficiaries under a welfare plan) at stated times or if certain events
occur. Second, the plan administrator must furnish certain material to
individual participants and beneficiaries upon their request. Third, the
plan administrator must make certain material available to participants
and beneficiaries for inspection at reasonable times and places.
(b) Fulfilling the disclosure obligation. (1) Except as provided in
paragraph (e) of this section, where certain material, including
reports, statements, notices and other documents, is required under
Title I of the Act, or regulations issued thereunder, to be furnished
either by direct operation of law or on individual request, the plan
administrator shall use measures reasonably calculated to ensure actual
receipt of the material by plan participants, beneficiaries and other
specified individuals. Material which is required to be furnished to all
participants covered under the plan and beneficiaries receiving benefits
under the plan (other than beneficiaries under a welfare plan) must be
sent by a method or methods of delivery likely to result in full
distribution. For example, in-hand delivery to an employee at his or her
worksite is acceptable. However, in no case is it acceptable merely to
place copies of the material in a location frequented by participants.
It is also acceptable to furnish such material as a special insert in a
periodical distributed to employees such as a union newspaper or a
company publication if the distribution list for the periodical is
comprehensive and up-to-date and aprominent notice on the front page of
the periodical advises readers that the issue contains an
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insert with important information about rights under the plan and the
Act which should be read and retained for future reference. If some
participants and beneficiaries are not on the mailing list, a periodical
must be used in conjunction with other methods of distribution such that
the methods taken together are reasonably calculated to ensure actual
receipt. Material distributed through the mail may be sent by first,
second, or third-class mail. However, distribution by second or third-
class mail is acceptable only if return and forwarding postage is
guaranteed and address correction is requested. Any material sent by
second or third-class mail which is returned with an address correction
shall be sent again by first-class mail or personally delivered to the
participant at his or her worksite.
(2) For purposes of section 104(b)(4) of the Act, materials
furnished upon written request shall be mailed to an address provided by
the requesting participant or beneficiary or personally delivered to the
participant or beneficiary.
(3) For purposes of section 104(b)(2) of the Act, where certain
documents are required to be made available for examination by
participants and beneficiaries in the principal office of the plan
administrator and in such other places as may be necessary to make
available all pertinent information to all participants and
beneficiaries, disclosure shall be made pursuant tothe provisions of
this paragraph. Such documents must be current, readily accessible, and
clearly identified, and copies must be available in sufficient number to
accommodate the expected volume of inquiries. Plan administrators shall
make copies of the latest annual report, and the bargaining agreement,
trust agreement, contract, or other instruments under which the plan is
established or operated available at all times in their principal
offices. They are not required to maintain these plan documents at all
times at each employer establishment or union hall or office as
described in paragraphs (b)(3)(i), (ii), and (iii) of this section, but
the documents must be made available at any such location within ten
calendar days following the day on which a request for disclosure at
that location is made. Plan administrators shall make plan documents
available at the appropriate employer establishment or union meeting
hall or office within the required ten day period when a request is made
directly to the plan administrator or through a procedure establishing
reasonable rules governing the making of requests for examination of
plan documents. If a plan administrator prescribes such a procedure and
communicates it to plan participants and beneficiaries, a plan
administrator will not be required to comply with a request made in a
manner which does not conform to the established procedure. In order to
comply with the requirements of this section, a procedure for making
requests to examine plan documents must permit requests to be made in a
reasonably convenient manner both directly to the plan administrator and
at each employer establishment, or union meeting hall or office where
documents must be made available in accordance with this paragraph. If
no such reasonable procedure is established, a good faith effort by a
participant or beneficiary to request examination of plan documents will
be deemed a request to the plan administrator for purposes of this
paragraph.
(i) In the case of a plan not maintained according to a collective
bargaining agreement, including a plan maintained by a single employer
with more than one establishment, a multiple employer plan, and a plan
maintained by a controlled group of corporations (within the meaning of
section 1563(a) of the Internal Revenue Code of 1954 (the Code)),
determined without regard to section 1563(a)(4) and (e)(3)(C) of the
Code), documents shall be made available for examination in the
principal office of the employer and at each employer establishment in
which at least 50 participants covered under a plan are customarily
working. ``Establishment'' means a single physical location where
business is conducted or where services or industrial operations are
performed. Where employees are engaged in activities which are
physically dispersed, such as agriculture, construction, transportation
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and communications, the ``establishment'' shall be the place to which
employees report each day. When employees do not usually work at, or
report to, a single establishment--for example, traveling salesmen,
technicians, and engineers--the establishment shall be the location from
which the employees customarily carry out their activities--for example
the field office of an engineering firm servicing at least 50
participants covered under the plan.
(ii) In the case of a plan maintained solely by an employee
organization, the plan administrator shall take measures to ensure that
documents are available for examination at the meeting hall or office of
each union local in which there are at least 50 participants covered
under the plan. Such measures shall include distributing copies of the
documents to each union local in which there are at least 50
participants covered under the plan.
(iii) In the case of a plan maintained according to a collective
bargaining agreement, including a collectively bargained single employer
plan with more than one establishment, a collectively bargained multiple
employer plan, and a multiemployer plan which meets the definition of
section 3(37) of the Act, Sec. 2510.3-37 of this chapter, and section
414(b) of the Internal Revenue Code of 1954 and 26 CFR 1.414(f) (40 FR
43034), documents shall be made available for examination in the
principal office of the employee organization and at each employer
establishment in which at least 50 participants covered under the plan
are customarily working. In employment situations where employees do not
usually work at, or report to, a single establishment, the plan
administrator shall take measures to ensure that plan documents are
available for examination at the meeting hall or office of each union
local in which there are at least 50 participants covered under the
plan.
(c) Disclosure through electronic media. (1) Except as otherwise
provided by applicable law, rule or regulation, the administrator of an
employee benefit plan furnishing documents through electronic media is
deemed to satisfy the requirements of paragraph (b)(1) of this section
with respect to an individual described in paragraph (c)(2) if:
(i) The administrator takes appropriate and necessary measures
reasonably calculated to ensure that the system for furnishing
documents--
(A) Results in actual receipt of transmitted information (e.g.,
using return-receipt or notice of undelivered electronic mail features,
conducting periodic reviews or surveys to confirm receipt of the
transmitted information); and
(B) Protects the confidentiality of personal information relating to
the individual's accounts and benefits (e.g., incorporating into the
system measures designed to preclude unauthorized receipt of or access
to such information by individuals other than the individual for whom
the information is intended);
(ii) The electronically delivered documents are prepared and
furnished in a manner that is consistent with the style, format and
content requirements applicable to the particular document;
(iii) Notice is provided to each participant, beneficiary or other
individual, in electronic or non-electronic form, at the time a document
is furnished electronically, that apprises the individual of the
significance of the document when it is not otherwise reasonably evident
as transmitted (e.g., the attached document describes changes in the
benefits provided by your plan) and of the right to request and obtain a
paper version of such document; and
(iv) Upon request, the participant, beneficiary or other individual
is furnished a paper version of the electronically furnished documents.
(2) Paragraph (c)(1) shall only apply with respect to the following
individuals:
(i) A participant who--
(A) Has the ability to effectively access documents furnished in
electronic form at any location where the participant is reasonably
expected to perform his or her duties as an employee; and
(B) With respect to whom access to the employer's or plan sponsor's
electronic information system is an integral part of those duties; or
(ii) A participant, beneficiary or any other person entitled to
documents under Title I of the Act or regulations issued thereunder
(including, but not limited to, an ``alternate payee'' within
[[Page 433]]
the meaning of section 206(d)(3) of the Act and a ``qualified
beneficiary'' within the meaning of section 607(3) of the Act) who--
(A) Except as provided in paragraph (c)(2)(ii) (B) of this section,
has affirmatively consented, in electronic or non-electronic form, to
receiving documents through electronic media and has not withdrawn such
consent;
(B) In the case of documents to be furnished through the Internet or
other electronic communication network, has affirmatively consented or
confirmed consent electronically, in a manner that reasonably
demonstrates the individual's ability to access information in the
electronic form that will be used to provide the information that is the
subject of the consent, and has provided an address for the receipt of
electronically furnished documents;
(C) Prior to consenting, is provided, in electronic or non-
electronic form, a clear and conspicuous statement indicating:
(1) The types of documents to which the consent would apply;
(2) That consent can be withdrawn at any time without charge;
(3) The procedures for withdrawing consent and for updating the
participant's, beneficiary's or other individual's address for receipt
of electronically furnished documents or other information;
(4) The right to request and obtain a paper version of an
electronically furnished document, including whether the paper version
will be provided free of charge; and
(5) Any hardware and software requirements for accessing and
retaining the documents; and
(D) Following consent, if a change in hardware or software
requirements needed to access or retain electronic documents creates a
material risk that the individual will be unable to access or retain
electronically furnished documents:
(1) Is provided with a statement of the revised hardware or software
requirements for access to and retention of electronically furnished
documents;
(2) Is given the right to withdraw consent without charge and
without the imposition of any condition or consequence that was not
disclosed at the time of the initial consent; and
(3) Again consents, in accordance with the requirements of paragraph
(c)(2)(ii)(A) or paragraph (c)(2)(ii)(B) of this section, as applicable,
to the receipt of documents through electronic media.
(d) Participant and beneficiary status for purposes of section
101(a) and 104(b)(1) of the Act and subpart F of this part. See
Sec. Sec. 2510.3-3(d)(1), 2510.3-3(d)(2) and 2520.3-3(d)(3) of this
chapter.
(e) Limitations. This section does not apply to disclosures required
under provisions of part 2 and part 3 of the Act over which the
Secretary of the Treasury has interpretative and regulatory authority
pursuant to Reorganization Plan No. 4 of 1978.
(Approved by the Office of Management and Budget under control number
1210-0039)
[42 FR 37186, July 19, 1977, as amended at 62 FR 16985, Apr. 8, 1997; 62
FR 36205, July 7, 1997; 67 FR 777, Jan. 7, 2002; 67 FR 17275, Apr. 9,
2002]
