ABA Comment on Department of Labor Proposed Safe Harbor on Electronic Delivery of Plan Documents

The American Bankers Association (ABA) appreciates the opportunity to provide comments to the Department of Labor (Department) on the proposed rule (Proposal) that would establish an additional safe harbor for the use of electronic media by employee benefit plans as a means to provide information to participants and beneficiaries of plans (collectively, retirement savers) that are subject to the Employee Retirement Income Security Act of 1974 (ERISA). If adopted, the Proposal would allow plan administrators and other responsible parties to make available to retirement savers certain disclosures and notices electronically on a website, rather than providing such disclosures by paper delivery. In their role as plan fiduciary, plan administrator, or other capacity under ERISA, a number of our member banks are charged with providing these disclosures to retirement savers. A plan administrator’s reliance on the proposed safe harbor is subject to specified conditions, including the retirement saver’s right to opt out of receiving electronic delivery. The Proposal also includes a Request for Information (RFI) that solicits public input on whether and how additional changes to ERISA’s general disclosure framework may be made to improve the effectiveness of ERISA disclosures.

We commend the Department on its efforts to modernize its regulations on electronic delivery. The Proposal, if finalized as currently written, would provide what we have long advocated: electronic delivery as the default method of delivery, making retirement plan disclosures and notices more efficient and useful for retirement savers and less burdensome and costly for banks and other retirement services industry providers. The Proposal further is drafted in a technologically neutral manner, which should provide sufficient flexibility for the development and adoption of future innovations in electronic delivery of plan documents to retirement savers.

Although the Proposal generally provides sufficient compliance guidance and certainty, we believe that the Proposal would benefit from several revisions that would help clarify and tailor the safe harbor’s purposes and requirements. We identify and describe these revisions below, together with recommended language. We also respond below to certain questions posed by the RFI, which we believe will help the Department lay the groundwork for continued sound regulation of the content and delivery of ERISA disclosures and notices.