Comment on FR Doc # E8-23918

Thank you for issuing the proposed amendment to Regulation §1.411(a)-11. The amendment to the regulation generally is clear. At your request, below are comments. §1.411(a)-11(c)(2)(vi)(A)(5) requires “An explanation of any provisions of the plan (and provisions of an accident or health plan maintained by the employer) that could reasonably be expected to materially affect a participant's decision whether to defer receipt of the distribution. Such provisions would include, for example: plan terms under which a participant who fails to defer may lose . . . eligibility for early retirement subsidies or social security supplements; plan terms under which the benefit of a rehired participant who failed to defer may be adversely affected by the decision not to defer . . . .” A rehired participant may opt to commence or defer in at least three distinct instances—initial retirement, rehire and subsequent retirement. The two instances of retirement are covered by the rules that address what must be explained, generally, to participants at retirement. It appears that this language, which addresses a rehired participant specifically, is intended to address the instance of rehire. Would it be clearer to replace “. . . the benefit of a rehired participant who failed to defer . . .” with “. . . the benefit of a participant who failed, upon rehire, to defer . . . ”? This replacement may clarify to the reader that the instance of rehire is intended. Some early retirement reductions are intended to approximate an actuarially equivalent reduction. For example, benefits might be reduced 1/180 for each of the first sixty months by which early commencement precedes normal retirement and 1/360 for each of the next sixty months. Is such an approximation considered a subsidy? Would it reasonably be expected to affect materially a participant's decision to defer? If failure to defer means a lump sum, does it matter whether the lump sum is the present value of the normal retirement benefit or the present value of the benefit payable at age 55? Likewise, if Social Security supplements or other optional forms of payment were available on an actuarially equivalent basis, but only upon attainment of a certain eligibility criterion, e.g., a certain age, would they reasonably be expected to affect materially a participant's decision to defer? Thank you for allowing the opportunity to submit comments. Any comments expressed here are my professional opinion and not necessarily the opinion of my employer.