Dol Proposed Rules on Electronic Delivery
However, other commentators objected to the proposal`s recognition of the validity of the email addresses on homepage 31889 assigned by the employer. These commentators were particularly concerned about the wording of the proposal, which allowed for the creation of an address assigned by the employer solely for the purpose of using the proposed safe harbor. These commenters were concerned that ineffective disclosure would cause employers, service providers, or technology companies hired by the employer to create and assign email addresses whose URL elements are unclear or unknown simply to comply with the new Safe Harbor. In these circumstances, these attenuated or ambiguous email addresses (e.g., email accounts) may not be trusted, ignored, overlooked, or forgotten by the individuals involved. One commenter argued that an email address assigned by the employer for the purposes of this rule could constitute a breach of fiduciary duty in some jurisdictions. 10. The Department received approximately 78 comments on the 2011 RFI, which are available at www.dol.gov/agencies/ebsa/laws-and-regulations/rules-and-regulations/public-comments/1210-AB50. The Department anticipates that the plans will result in one-time start-up costs for the development of NOIA and initial notifications. These costs include ensuring that notifications comply with final regulatory requirements.
The Department also anticipates that the cost of distributing notice notices will be modest because they can be distributed electronically. However, the initial notification of the delay in electronic delivery and the right of withdrawal would entail production and shipping costs. Plans based on the new email alternative permitted under paragraph (k) of the rule will disclose participants by email instead of providing notices of intent. Some types of plans deploy NOAIs more frequently than other types of plans, as required by paragraph (i) of the Printed Home Page rule. For example, subscriber-controlled DC plans must deploy notices of assessment more frequently than non-subscriber-controlled defined contribution plans, as they must notify members quarterly, not annually. 91. According to point (i) of the proposed provision, seven pieces of information to be provided could be included in a single combined annual EENO. These seven disclosures were the SPD, MMS, SAR, the Annual Funding Notice, the 404(a)(5)/404(c) Disclosure, the QDIA Annual Notice and the Pension Benefit Statement. However, in response to public comments, the Department revised paragraph (i) of the final rule.
As a result, some of these seven disclosures can no longer be included in a single annual EINO. For example, a single combined annual NOIA does not include an MMS or quarterly statement of pension benefits. Despite this change in the final rule, the Department has included the seven disclosures to estimate the cost savings associated with this new Safe Harbor, given that these seven pieces of information can still be submitted electronically, but not with a single combined annual NOIA. In its estimates of the expense, the Department took into account the fact that some plan administrators send notices of notices by email several times a year under the final rule, rather than sending a single combined annual notice notice by email as would have been permitted under the proposal. The ministry has updated these burden estimates using 2019 rates of pay and 2017 pension plans. The Regulatory Flexibility Act  imposes certain requirements on rules that are subject to the notification and comment requirements of section 553(b) of the Administrative Procedure Act.  Section 604 of the RFA requires agencies to provide a final regulatory flexibility analysis (FRFS) for proposals that are likely to have a significant economic impact on a significant number of small businesses. Small businesses include small businesses, organizations and governments.
114. The Department assumes that software is commercially available to create a list of rejected email addresses with the owner`s name, export the list in various formats, and, in some circumstances, remove invalid email addresses from the list. These software also generate and report relevant statistics such as bounce rate, open rate, and click-through rate. Some software automatically retryed delivery based on the reasons for the delivery failure. Given the lack of data, the Department used the percentage of plans without a website as an approximation of plans that do not have the email tracking function. The Ministry of Labour (DOL) has released final regulations that are making significant progress in removing barriers to the electronic delivery of a wide range of pension plan disclosures. Specifically, the final regulations create a new safe harbor (the Safe Harbor DOL 2020) for the electronic submission to members and beneficiaries of pension plan disclosures required by Title I of the Employee Retirement Income Security Act of 1974, as amended (ERISA).1 The DOL Safe Harbor 2020 applies to disclosures made on or after July 27, 2020.2 The Act on the retirement income security of employees 1974 (ERISA) and the rules contained therein establish general standards for the provision of all information to be provided to members, beneficiaries and other persons under Title I ERISA.  Plan administrators must use deployment methods that are appropriately calculated to ensure that members, beneficiaries and others actually receive information.  For example, hand-delivery to an employee at the workplace is acceptable, as is equipment sent by first-class mail. In response to the development of the Internet, e-mail and similar technologies, the Ministry of Labour first amended ERISA`s delivery standards in 2002 by establishing a safe harbor for the use of electronic media to provide disclosures (the Safe Harbor 2002).
 The 2002 “safe haven” was and is not the only means by which a plan manager can use electronic media to meet the general standard. However, plan administrators who comply with safe harbor conditions can be confident that general delivery requirements are met.