§ 2520.104a-4 Material modifications to the plan and changes in plan description information.

(a) General obligation to file. The administrator of an employee benefit plan subject to the provisions of Part 1 of Title I of the Act shall file with the Secretary, as required by section 104(a)(1)(D) of the Act, any material modifications in the terms of the plan or any changes in the information required by section 102(b) of the Act.

(b) Fulfilling the filing obligation. (1) The administrator of an employee benefit plan shall satisfy the requirements of section 104(a)(1)(D) of the Act and § 2520.104(a)-4(a) by filing with the Secretary a summary of material modifications or changes in information

which is required by § 2520.104b-3. The summary description of such material modifications or changes shall be filed, in accordance with § 2520.104a-7, no later than the date on which the summary description is required to be disclosed to participants.

(2) The administrator of an employee benefit plan is not required to file a summary of any material modifications or changes in information required to be included in the summary description if such modifications or changes are:

(i) Incorporated in a summary plan description or supplement filed with the Secretary of Labor pursuant to § 2520.104a-3;

(ii) Incorporated in the plan description filed with the Secretary within 120 days after the plan becomes subject to Part I of Title I of the Act and pursuant to § 2520.104a-2.

(iii) Incorporated in an updated plan description filed with the Secretary pursuant to section 104(a)(1)(B) of the Act.

(c) Filing address. The summary description of material modifications to the plan and changes in the information required by section 102(b) shall be filed with the Secretary of Labor by mailing it to SMM, U.S. Department of Labor, Washington, D.C. 20216 or by delivering it during normal working hours to Room N-4635, Department of Labor, 200 Constitution Ave., NW., Washington, D.C.

(d) Effect. This section is effective April 10, 1978, and supersedes prior § 2520.104a-4 published on April 23, 1976 (41 FR 16964).

[43 FR 10151, Mar. 10, 1978; 43 FR 14010, Apr. 4, 1978]

§ 2520.104a-5 Annual reporting filing requirements.

(a) Filing obligation. Except as provided in § 2520.104a-6, the administrator of an employee benefit plan required to file an annual report pursuant to section 104(a)(1)(A) of the Act shall file an annual report containing the items prescribed in § 2520.103-1 within:

(1) Eleven and one half months after the close of the plan year which begins in 1975, or December 15, 1977, whichever is later; and

(2) Seven months after the close of any plan year which begins after December 31, 1975, unless extended. See "When to file" instructions of the appropriate Annual Return/Report Form.

(b) Where to file. The annual report described in § 2520.103-1 shall be filed in accordance with and at the address provided in the instructions to the Annual Return/Report Form.

[43 FR 10152, Mar. 10, 1978; 43 FR 14010, Apr. 4, 1978]

§ 2520.104a-6 Annual reporting for plans which are part of a group insurance arrangement.

(a) General. A trust or other entity described in § 2520.104-43(b) that files an annual report in accordance with the terms of subsections (b) and (c) shall be deemed to have filed such report in accordance with § 2520.104a6 for purposes of § 2520.104-43.

(b) Date of filing. The annual report shall be filed within:

(1) Eleven and one-half months after the close of the fiscal year of the trust or other entity described in § 2520.10443 which begins in 1975 or December 15, 1977, whichever is later; and

(2) Seven months after the close of the fiscal year of the trust or other entity which begins after December 31, 1975, unless extended. See "When to file" instructions of the appropriate Annual Return/Report Form.

(c) Where to file. The annual report prescribed in § 2520.103-2 shall be filed in accordance with and at the address provided in the instructions to the Annual Return/Report Form.

[43 FR 10152, Mar. 10, 1978; 43 FR 14010, Apr. 4, 1978]

§ 2520.104a-7 Summary of material modification.

The administrator of an employee benefit plan subject to the provisions of Part 1 of Title I of the Act, and not otherwise exempt from the requirement to file and distribute a summary plan description, shall file a summary description of modifications changes described in section 102(a)(1) of the Act with the Secretary no later than the date on which the summary description is required to be disclosed to participants and beneficiaries by § 2520.104b-3.

[45 FR 14032, Mar. 4, 1980]

or

(a) General disclosure requirements. The administrator of an employee benefit plan covered by Part 1 of Title I of the Act must disclose certain material, including reports, statements and documents, to participants and beneficiaries. Disclosure under Part 1 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) Where certain material, including reports, statements and documents, is required under Part 1 of the Act and this part to be furnished either by direct operation of law or on individual request, the plan adminis

trator shall use measures reasonably calculated to ensure actual receipt of the material by plan participants and beneficiaries. 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 a prominent notice on the front page of the periodical advises readers that the issue contains an 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 to the 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 plan description, 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 § 1563(a) of the Internal Revenue Code of 1954 (the Code)), determined without regard to § 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 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, § 2510.3-37 of this chapter, and section 414(b) of the Internal Revenue Code of 1954 and 26 CFR 1.414(f) (40 CFR 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.

§ 2520.104b-2 Summary plan description. (a) Obligation to furnish. Under the authority of sections 104(b)(1) and 104(c) of the Act, the plan administrator of an employee benefit plan subject to the provisions of Part 1 of Title I shall furnish a copy of the summary plan description and a statement of ERISA rights as provided in § 2520.102-3(t), to each participant covered under the plan (as defined in § 2510.3-3(d)), and each beneficiary receiving benefits under a pension plan on or before the later of:

(1) The date which is 90 days after the employee becomes a participant, or (in the case of a beneficiary receiving benefits under a pension plan) within 90 days after he or she first receives benefits, except as provided in § 2520.104b-4(a), or,

(2) Within 120 days after the plan becomes subject to Part 1 of Title I.

(3)(i) A plan becomes subject to Part 1 of Title I on the first day on which an employee is credited with an hour of service under § 2530.200b-2 or § 2530.200b-3. Where a plan is made prospectively effective to take effect after a certain date or after a condition is satisfied, the day upon which

the plan becomes subject to Part 1 of Title I is the day after such date or condition is satisfied. Where a plan is adopted with a retroactive effective date, the 120 day period begins on the day after the plan is adopted. Where a plan is made retroactively effective dependent on a condition, the day on which the plan becomes subject to Part 1 of Title I is the day after the day on which the condition is satisfied. Where a plan is made retroactively effective subject to a contingency which may or may not occur in the future, the day on which the plan becomes subject to Part 1, Title I is the day after the day on which the contingency occurs.

(ii) Examples: Company A is negotiating the purchase of Company B. On September 1, 1978, as part of the negotiations, Company A adopts a pension plan covering the employees of Company B, contingent on the successful conclusion of its negotiations to purchase Company B. The plan provides that it shall take effect on the first day of the calendar year in which the purchase is concluded. On February 1, 1979, the negotiations conclude with Company A's purchase of Company B. The plan therefore becomes effective on February 1, 1979, retroactive to January 1, 1979. The summary plan description must be filed and disclosed no later than 120 days after February 1, 1979.

(b) Periods for furnishing updating summary plan descriptions. [Reserved]

(c) Alternative ERISA Notice requirements. A plan which elected to comply with the alternative ERISA Notice procedure provided in § 2520.104-5 or § 2520.104-6 is not required to furnish a copy of the summary plan description to participants and beneficiaries until the time described in the applicable section, and will be deemed to have satisfied the requirements of section 104(b)(1)(B) of the Act until such time. Thereafter, the requirements of section 104(b)(1)(B) of the Act and this section must be met in full.

(d) Use of form EBS-1 as summary plan description. (1) The plan administrator of an employee benefit plan shall be deemed to have satisfied the

requirements of section 104(b)(1)(B) of the Act and this section for the initial disclosure of the summary plan description if the plan administrator filed a summary plan description pursuant to proposed § 2520.104a-3(d) of the June 9, 1975, proposed regulations (40 FR 24642); § 2520.104-3 as issued on April 30, 1975 (40 FR 19469; see also 40 FR 20628, May 12, 1975); proposed §§ 2522.40 and 2523.30 as published on December 4, 1974 (39 FR 42241); and the instructions on old form EBS-1 (bearing print date 4-75), and if the plan administrator furnished copies of a complete Form EBS-1 bearing print date 4-75 to participants covered under the plan and beneficiaries receiving benefits under the plan.

(2) Under the authority of section 104(c) of the Act, a plan described in paragraph (d)(1) of this section shall furnish to participants covered under the plan and beneficiaries receiving benefits under the plan a statement of ERISA rights which complies with § 2520.102-3(t) by November 16, 1977.

(e) Disclosure obligation for plans which filed and disclosed by May 30, 1976 in reliance upon regulations of the Department. (1) The plan administrator of an employee benefit plan shall be deemed to have satisfied the requirements of section 104(b)(1)(B) of the Act and this section for the initial disclosure of the summary plan description if the plan administrator filed

a

summary plan description based upon the final regulations published in the FEDERAL REGISTER ON August 15, 1975 (40 FR 34526) and on specific sections of the proposed regulations published in the FEDERAL REGISTER On June 9, 1975 (40 FR 24642) in reliance upon the preamble to the final regulations published in the FEDERAL REGISTER on April 23, 1976 (41 FR 16957) and announced in Departmental press release USDL 76-706, published April 21, 1976, and if the plan administrator furnished to participants covered under the plan and pension plan beneficiaries receiving benefits under the plan copies of such summary plan description.

(2) Under the authority of section 104(c) of the Act, a plan described in paragraph (e)(1) of this section shall

furnish to participants covered under the plan and beneficiaries receiving benefits under the plan a statement of ERISA rights which complies with § 2520.102-3(t) by November 16, 1977.

(f) Disclosure obligation for all other plans which previously filed and disclosed the summary plan description. (1) This section applies to those employee benefit plans which have disclosed to participants covered under the plan beneficiaries receiving benefits under a pension plan, a summary plan description on or before March 15, 1977, and which are not described in paragraphs (d) or (e) of this section.

(2) The plan administrator of an employee benefit plan described in paragraph (f)(1) of this section shall be deemed to have satisfied the requirements of section 104(b)(1)(B) of the Act and this section for the initial disclosure of the summary plan description and the disclosure of the first updated summary plan description if the plan administrator:

(i) Furnishes to participants covered under the plan and pension plan beneficiaries receiving benefits under the plan by November 16, 1977, a copy of a supplement to the summary plan description which includes any items of information required by § 2520.102-3 which were not included in the earlier document and which, taken together with the earlier document, meets the style and format requirements of § 2520.102-2. The requirement

of

§ 2520.102-2(b) that benefit restrictions be described or cross-referenced adjacent to the description of benefits will be deemed satisfied if the supplement contains a statement which references participants to the descriptions of benefits and benefit restrictions in the summary plan description and describes their relationship; and

(ii) Files with the Secretary, by November 16, 1977, a copy of the summary plan description described in paragraph (f)(1) and a copy of the supplement described in paragraph (f)(2)(i); and

(iii) Furnishes to participants and beneficiaries a summary plan description which meets the requirements of §§ 2520.102-2 and 2520.102-3 within five years (or ten years) of the date of