[Federal Register Volume 87, Number 250 (Friday, December 30, 2022)]
[Proposed Rules]
[Pages 80501-80509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-28327]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[REG-114666-22]
RIN 1545-BQ50


Use of an Electronic Medium To Make Participant Elections and 
Spousal Consents

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Notice of proposed rulemaking and notice of public hearing.

-----------------------------------------------------------------------

SUMMARY: This document sets forth a proposed regulation relating to the 
use of an electronic medium for participant elections and spousal 
consents. The proposed regulation provides an alternative to in-person 
witnessing of spousal consents required to be witnessed by a notary 
public or a plan representative, and clarifies that certain special 
rules for the use of an electronic medium for participant elections 
also apply to spousal consents. The proposed regulation generally 
affects sponsors and administrators of, and individuals entitled to 
benefits under, certain qualified retirement plans. This document also 
provides a notice of a public hearing.

DATES: Written or electronic comments must be received by March 30, 
2023. A telephonic public hearing on this proposed regulation has been 
scheduled for April 11, 2023, at 10:00 a.m. ET. Requests to speak and 
outlines of topics to be discussed at the public hearing must be 
received by March 30, 2023. If no outlines are received by March 30, 
2023, the public hearing will be cancelled. Requests to attend the 
public hearing must be received by 5:00 p.m. ET on April 7, 2023. The 
public hearing will be made accessible to people with disabilities. 
Requests for special assistance during the public hearing must be 
received by April 6, 2023.

ADDRESSES: Commenters are strongly encouraged to submit public comments 
electronically. Submit electronic submissions via the Federal 
eRulemaking Portal at www.regulations.gov (indicate IRS and REG-114666-
22) by following the online instructions for submitting comments. Once 
submitted to the Federal eRulemaking Portal, comments cannot be edited 
or withdrawn. The Department of the Treasury (``Treasury Department'') 
and the IRS will publish for public availability any comment submitted 
electronically or on paper to its public docket on www.regulations.gov. 
Send paper submissions to: CC:PA:LPD:PR (REG-114666-22), Room 5203, 
Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, 
Washington, DC 20044.

FOR FURTHER INFORMATION CONTACT: Concerning the regulation, call Arslan 
Malik at (202) 317-6700 or Pamela Kinard at (202) 317-6000; concerning 
submission of comments, the hearing, and the access code to attend the 
hearing by telephone, call Vivian Hayes at (202) 317-5306 (not toll-
free numbers) or email [email protected] (preferred).

SUPPLEMENTARY INFORMATION: 

[[Page 80502]]

Background

A. In General

    This document sets forth proposed amendments to 26 CFR part 1 under 
section 401 of the Internal Revenue Code (Code). Final regulations 
relating to the electronic delivery of applicable notices and 
participant elections were published in the Federal Register on October 
20, 2006 (71 FR 61877) (2006 final regulations). The 2006 final 
regulations included new Sec.  1.401(a)-21 setting forth standards for 
the use of an electronic medium to provide applicable notices to 
recipients or to make participant elections, amended Q&A-13 of Sec.  
54.4980F-1 by revising the rules for using an electronic method to 
provide a section 204(h) notice, and made certain conforming 
amendments.\1\ Section 1.401(a)-21 reflects the applicable provisions 
of the Electronic Signatures in Global and National Commerce Act, 
Public Law 106-229, 114 Stat. 464 (2000) (E-SIGN), as it relates to the 
electronic delivery of applicable notices and participant elections. 
For an in-depth description of the provisions of E-SIGN, see the 
background section in the preamble of the 2006 final regulations.
---------------------------------------------------------------------------

    \1\ The 2006 final regulations made conforming amendments to 
Sec. Sec.  1.72(p)-1, 1.132-9, 1.401(k)-3, 1.402(f)-1, 1.411(a)-11, 
1.417(a)(3)-1, 1.7476-2, and 35.3405-1.
---------------------------------------------------------------------------

B. Special Rules for Participant Elections

    Section 1.401(a)-21(d) sets forth several special rules relating to 
the use of an electronic medium to make a participant election, which 
is defined in Sec.  1.401(a)-21(e)(6) as any consent, election, 
request, agreement, or similar communication made by or from a 
participant, beneficiary, alternate payee, or an individual entitled to 
benefits under a retirement plan, employee benefit arrangement, or 
individual retirement plan. First, the person eligible to make a 
participant election must be effectively able to access the electronic 
medium used to make the participant election. Second, the electronic 
system used in making a participant election must be reasonably 
designed to preclude any person other than the appropriate person from 
making the participant election. Third, the electronic system must 
provide the person making the participant election with a reasonable 
opportunity to review, confirm, modify, or rescind the terms of the 
election before it becomes effective. Fourth, the person making the 
participant election must receive, within a reasonable time, 
confirmation of the effect of the election through either a written 
paper document or an electronic medium under a system that satisfies 
the applicable notice requirements under Sec.  1.401(a)-21(b) or (c).
    Spousal consent rules apply to plans that are subject to the 
qualified joint and survivor annuity (QJSA) and qualified preretirement 
survivor annuity (QPSA) requirements of section 417.\2\ In general, 
these spousal consent rules require that a participant's spouse consent 
to the participant's election to take certain plan distributions or 
loans, and that such consent be witnessed by a plan representative or a 
notary public. See generally section 417(a)(2); Sec.  1.401(a)-20, Q&A-
8(b) and Q&A-24 and Sec.  1.417(e)-1(b). Section 1.401(a)-21(d)(6)(i) 
provides that, in the case of a participant election that is required 
to be witnessed by a plan representative or a notary public (such as a 
spousal consent under section 417), the signature of the individual 
making the participant election must be witnessed in the physical 
presence of a plan representative or a notary public (physical presence 
requirement). Section 1.401(a)-21(d)(6)(ii) provides that, if the 
signature of an individual is witnessed in the physical presence of a 
notary public, an electronic notarization acknowledging the signature 
(in accordance with section 101(g) of E-SIGN,\3\ and applicable State 
law for notaries public) will not be denied legal effect.
---------------------------------------------------------------------------

    \2\ In general, the spousal consent requirements under section 
417 apply to a subset of qualified retirement plans, including 
defined benefit plans, money purchase pension plans, and defined 
contribution plans that (1) do not provide 100 percent death 
benefits for surviving spouses, (2) provide benefits in the form of 
a life annuity, or (3) are direct or indirect transferees of a 
defined benefit or money purchase pension plan. See section 
401(a)(11)(B) and Sec.  1.401(a)-20, Q&A-3. Section 205 of the 
Employee Retirement Income Security Act of 1974, as amended (ERISA), 
provides parallel annuity and spousal rights provisions, including 
spousal consent requirements. The IRS has interpretive authority 
over section 205 of ERISA pursuant to the Reorganization Plan No. 4 
of 1978, 5 U.S.C. App.
    \3\ Section 101(g) of E-SIGN provides that ``[i]f a statute, 
regulation, or other rule of law requires a signature or record 
relating to a transaction in or affecting interstate or foreign 
commerce to be notarized, acknowledged, verified, or made under 
oath, that requirement is satisfied if the electronic signature of 
the person authorized to perform those acts, together with all other 
information required to be included by other applicable statute, 
regulation, or rule of law, is attached to or logically associated 
with the signature or record.''
---------------------------------------------------------------------------

    Section 1.401(a)-21(d)(6)(iii) provides that the Commissioner may 
provide in guidance published in the Internal Revenue Bulletin that the 
use of procedures under an electronic system is deemed to satisfy the 
physical presence requirement, but only if those procedures with 
respect to the electronic system provide the same safeguards for 
participant elections as are provided through the physical presence 
requirement.

C. Notices Issued in Response to COVID-19 Pandemic

    During the Coronavirus Disease 2019 (COVID-19) pandemic,\4\ the 
Treasury Department and the IRS received several requests from 
stakeholders to permit remote witnessing of spousal consents by a 
notary public or a plan representative over the internet using digital 
tools and live audio-video technologies (remote witnessing) for plan 
distributions and loans. These stakeholders stated that, due to social 
distancing requirements and other measures put into place in response 
to the COVID-19 pandemic, the physical presence requirement in Sec.  
1.401(a)-21(d)(6) made it difficult, if not impossible, for a 
participant to receive a plan distribution or loan for which spousal 
consent was required. In response to the COVID-19 pandemic and requests 
for relief from stakeholders, the Treasury Department and the IRS 
issued a notice granting temporary relief from the physical presence 
requirement for spousal consents and, in response to the continuing 
COVID-19 pandemic and additional requests for relief from stakeholders, 
three additional notices granting extensions of the temporary relief 
(together, the temporary relief notices).\5\ The temporary relief 
notices granted relief for the period January 1, 2020, through December 
31, 2022.
---------------------------------------------------------------------------

    \4\ On March 13, 2020, the President determined that the COVID-
19 pandemic was of sufficient severity and magnitude to warrant an 
emergency determination beginning March 1, 2020, under the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 
5121-5207.
    \5\ See Notice 2020-42, 2020-26 IRB 986; Notice 2021-03, 2021-2 
IRB 316; Notice 2021-40, 2021-28 IRB 15; and Notice 2022-27, 2022-22 
IRB 1151.
---------------------------------------------------------------------------

    Under the temporary relief notices, in the case of a participant 
election witnessed by a notary public, an electronic system that uses 
remote witnessing is deemed to satisfy the physical presence 
requirement if the participant election is executed via live audio-
video technology that otherwise satisfies the requirement for 
participant elections and is consistent with State law requirements 
that apply to the notary public.
    In the case of a participant election witnessed by a plan 
representative, under the temporary relief notices, an electronic 
system that uses remote witnessing is deemed to satisfy the

[[Page 80503]]

physical presence requirement if the electronic system uses live audio-
video technology and satisfies the following requirements: (1) the 
individual signing the participant election must present a valid photo 
ID to the plan representative during the live audio-video conference, 
and may not merely transmit a copy of the photo ID prior to or after 
the witnessing; (2) the live audio-video conference must allow for 
direct interaction between the individual and the plan representative 
(for example, a pre-recorded video of the person signing is not 
sufficient); (3) the individual must transmit by fax or electronic 
means a legible copy of the signed document directly to the plan 
representative on the same date it was signed; and (4) after receiving 
the signed document, the plan representative must acknowledge that the 
signature has been witnessed by the plan representative in accordance 
with the requirements of the temporary relief notices and transmit the 
signed document, including the acknowledgement, back to the individual 
under a system that satisfies the applicable notice requirements under 
Sec.  1.401(a)-21(c).

D. Comments Relating to Remote Witnessing of Spousal Consents

1. Solicitation of Public Comments
    Several stakeholders requesting an extension of the temporary 
relief provided in Notice 2020-42 further requested that the relief be 
made permanent. In response, Notices 2021-03 and 2021-40 solicited 
comments relating to remote witnessing. Notice 2021-03 solicited 
comments on whether relief from the physical presence requirement 
should be made permanent and, if made permanent, what, if any, 
procedural safeguards would be necessary to reduce the risk of fraud, 
spousal coercion, or other abuse in the absence of a physical presence 
requirement. Notice 2021-03 also stated that any permanent modification 
to the physical presence requirement would be made through the 
regulatory process, giving stakeholders an opportunity to provide 
additional comments.
    Notice 2021-40 solicited general and specific comments on whether 
permanent guidance modifying the physical presence requirement should 
be issued. Specifically, the Treasury Department and the IRS requested 
comments regarding: (1) how the temporary removal of the physical 
presence requirement for participant elections required to be witnessed 
by a plan representative or a notary public has affected costs and 
burdens for all parties (for example, participants, spouses, and plans) 
and whether there are costs and burdens associated with the physical 
presence requirement that support modifying the requirement on a 
permanent basis; (2) whether there is evidence that the temporary 
removal of the physical presence requirement has resulted in fraud, 
spousal coercion, or other abuse, and how, if the physical presence 
requirement is permanently modified, increased fraud, spousal coercion, 
or other abuse may be likely to result from that modification; (3) how 
participant elections are being witnessed, or are expected to be 
witnessed, as the COVID-19 pandemic abates (for example, whether the 
availability of in-person notarization has returned, or is expected to 
return, to pre-COVID-19 pandemic levels); (4) if guidance permanently 
modifying the physical presence requirement is issued, what procedures 
should be established to provide the same safeguards for participant 
elections as are provided through the physical presence requirement; 
and (5) if guidance permanently modifying the physical presence 
requirement is issued, whether the guidance should establish procedures 
for witnessing by plan representatives that are different from 
procedures for witnessing by notaries public.
2. Commenters Supporting Remote Witnessing
    Commenters supporting remote witnessing for spousal consents made 
several arguments in support of adding remote witnessing as a permanent 
alternative to the physical presence requirement. Supporters argued 
that the remote witnessing process, in particular remote witnessing by 
a notary public, is easy to use, reduces the time it takes to process a 
distribution, and saves participants and beneficiaries both time and 
money.\6\ For example, two commenters stated that remote witnessing by 
a notary public takes about 8 minutes on average. In addition, 
supporters argued that remote witnessing provides a necessary 
alternative for participants and spouses with mobility challenges, 
health concerns, and long commute times.
---------------------------------------------------------------------------

    \6\ Another commenter addressed fees, stating that fees are 
imposed for both remote and in-person notarizations, are regulated 
by State law, and are generally equivalent. However, another 
commenter supporting remote witnessing argued that fees for remote 
witnessing by a notary public are generally higher than for in-
person notarization, so that there is a cost associated with remote 
witnessing by a notary public. In addition, a commenter opposing 
remote witnessing argued that in-person notarization is usually free 
or has nominal fees, as compared to generally higher fees for remote 
witnessing by a notary public.
---------------------------------------------------------------------------

    In response to concerns about potential fraud, supporters of remote 
witnessing for spousal consents argued that State notarization laws 
allowing remote witnessing have strict guidelines to help prevent 
fraudulent activity, including knowledge-based authentication and 
credential analysis. Supporters also noted that, during the period of 
remote witnessing permitted by the temporary relief notices, plans had 
not reported any evidence of fraud, spousal coercion, or other abuse.
    In addressing whether additional safeguards should be added to the 
requirements for remote witnessing of spousal consents, supporters of 
remote witnessing generally argued that the safeguards provided in the 
temporary relief notices are adequate. They also pointed out that 
technological advances (such as real-time ID verification, electronic 
authentication standards, and digital recording and storage) have the 
potential to make the remote witnessing process more secure than the 
in-person witnessing process.
    Some supporters of remote witnessing of spousal consents argued 
against establishing procedures for remote witnessing by a plan 
representative that differ from the procedures for a notary public. 
However, others argued that separate rules may be warranted because a 
plan representative (unlike a notary public) is not subject to any 
State oversight or mandated procedures for witnessing. One commenter 
suggested requiring that plan representatives use secure two-way live 
audio-video communication, record the audio-video communication, and 
store the audio-video recording.
    Many supporters of remote witnessing of spousal consents supported 
a rule preventing a plan from requiring remote witnessing for spousal 
consents. They argued that a spouse should be able to choose to have a 
spousal consent witnessed in person, even if the plan permits remote 
witnessing.
    Finally, one supporter of remote witnessing of spousal consents 
suggested clarification that the protections for participant elections 
made with an electronic medium set forth in Sec.  1.401(a)-21(d) also 
apply to spousal elections made with an electronic medium. For example, 
the commenter suggested requiring that the system be designed to 
preclude anyone other than a spouse from giving consent and that a 
spouse be given a reasonable opportunity to review, confirm, modify, or 
rescind a spousal consent before it becomes effective.

[[Page 80504]]

3. Commenters Opposing Remote Witnessing
    Commenters opposing remote witnessing for spousal consents made 
several arguments in favor of retaining the physical presence 
requirement without modification. In particular, they argued that there 
is no longer a public health emergency justification for waiving the 
physical presence requirement, that the temporary relief notices were a 
temporary measure to address a national public health emergency, and 
that social distancing requirements and other measures have eased, so 
there is no longer a sufficient rationale for changing the physical 
presence requirement.
    In addition, in response to statements by commenters that there has 
been no evidence of fraud during the period of the temporary relief 
granted under the temporary relief notices, opponents of remote 
witnessing for spousal consents argued that it usually takes many years 
for evidence of fraud to surface and that investigating and resolving 
allegations of fraud can take years. Opponents of remote witnessing 
also argued that a notary public or plan representative witnessing a 
spousal consent remotely, unlike a notary public or plan representative 
witnessing a spousal consent in-person, cannot check for signs of ID 
tampering or physically inspect ID security features intended to 
prevent forgeries. They further argued that knowledge-based 
authentication is not effective for a married couple because spouses 
are likely to know key facts about each other. With respect to 
detecting spousal coercion and pressure, opponents of remote witnessing 
of spousal consents argued that remote witnessing is inferior to in-
person witnessing. For example, a commenter argued that a webcam's 
field of vision is narrow and cannot see individuals outside the field 
of vision who may be exerting undue influence on a spouse signing a 
consent. Opponents of remote witnessing for spousal consents noted that 
a conflict of interest may exist between spouses over the form and 
timing of retirement distributions and loans, so that a participant may 
put significant pressure on a spouse to waive spousal rights.
    In addressing whether additional safeguards should be added to the 
requirements for remote witnessing of spousal consents in the temporary 
relief notices, opponents of remote witnessing for spousal consents 
argued that, if remote witnessing were permitted, the scope of the 
current safeguards in Sec.  1.401(a)-21(d) should be clarified. For 
example, plans should be required to--(1) send to a spouse who provides 
spousal consent certain documents, such as a confirmation of the 
consent (separate from documents sent to a participant) in a manner 
that ensures actual receipt, (2) make a visual recording of the consent 
process, and (3) retain all critical plan records with respect to a 
participant election or spousal consent. They also suggested that the 
Treasury Department and the IRS impose additional protections, such as 
requiring that plans allow spouses to choose to have a spousal consent 
witnessed in person and providing guidance on post-consent 
confirmations.

Explanation of Provisions

A. Overview

    The proposed regulation modifies the participant election rules in 
Sec.  1.401(a)-21(d) in two significant ways. First, the proposed 
regulation sets forth alternatives to the physical presence requirement 
in Sec.  1.401(a)-21(d)(6) for the witnessing of a spousal consent. 
These alternatives permit a spousal consent to be witnessed remotely by 
a notary public or plan representative, but only if certain conditions 
are satisfied. Second, the proposed regulation clarifies that the 
protections in Sec.  1.401(a)-21(d) that apply to participant elections 
made using an electronic medium also apply to spousal consents made 
using an electronic medium. As part of that clarification, the proposed 
regulation modifies existing Example 3 in Sec.  1.401(a)-21(f), which 
illustrates the electronic transmission of a participant election for a 
plan loan and related notarized spousal consent, to clarify that the 
protections in Sec.  1.401(a)-21(d) apply to the spousal consent. The 
proposed regulation also makes other minor conforming changes.

B. Remote Witnessing of Spousal Consents

    Section 1.401(a)-21(d)(6)(i) of the proposed regulation generally 
retains the physical presence requirement set forth in the existing 
regulation. The physical presence requirement provides that, in the 
case of a spousal consent that is required to be witnessed by a notary 
public or a plan representative (such as a spousal consent under 
section 417), the signature of the person signing the spousal consent 
must be witnessed in the physical presence of a notary public or plan 
representative.
    However, the proposed regulation also provides two alternatives to 
the physical presence requirement for spousal consents. These two 
alternatives are similar to the alternatives in the temporary relief 
notices issued in response to the COVID-19 pandemic. For more 
information about the temporary relief notices, see Part C in the 
Background section of this preamble, under the heading Notices Issued 
in Response to COVID-19 Pandemic.
1. Remote Witnessing by Notary Public
    Proposed Sec.  1.401(a)-21(d)(6)(ii)(A) sets forth remote 
witnessing rules for spousal consents witnessed by a notary public. The 
proposed regulation provides that, as an alternative to satisfying the 
physical presence requirement, a plan may accept a spousal consent 
witnessed remotely by a notary public, provided that (1) the signature 
of the person signing the spousal consent is witnessed by the notary 
public using live audio-video technology, (2) the requirements in Sec.  
1.401(a)-21(d) for spousal consents are satisfied, and (3) the remote 
witnessing is consistent with State law requirements that apply to the 
notary public. This alternative is substantially similar to the 
temporary relief from the physical presence requirement provided in the 
temporary relief notices for remote witnessing by a notary public.
    Section 1.401(a)-21(d)(6)(ii)(A)(2) of the proposed regulation 
requires that a plan that accepts spousal consents witnessed remotely 
by a notary public, as described in proposed Sec.  1.401(a)-
21(d)(6)(ii)(A)(1), must also accept spousal consents witnessed in the 
physical presence of a notary public. Both supporters and opponents of 
remote witnessing suggested this requirement (which was also included 
in the temporary relief notices providing extensions).
2. Remote Witnessing by Plan Representative
    The proposed regulation also sets forth remote witnessing rules for 
spousal consents witnessed by a plan representative. Proposed Sec.  
1.401(a)-21(d)(6)(ii)(B) provides that, as an alternative to satisfying 
the physical presence requirement, a plan may accept a spousal consent 
witnessed remotely by a plan representative, provided that (1) the 
signature of the person signing the spousal consent is witnessed by a 
plan representative using live audio-video technology, (2) the 
requirements in Sec.  1.401(a)-21(d) for spousal consents are 
satisfied, and (3) the remote witnessing satisfies the following five 
requirements described in proposed Sec.  1.401(a)-21(d)(6)(ii)(B)(1) 
through (5):
    First, the person signing the spousal consent must present a valid 
photo ID

[[Page 80505]]

to the plan representative during the live audio-video conference. For 
example, the person signing the spousal consent may not merely transmit 
a copy of the photo ID to the plan representative prior to or after the 
witnessing. Second, the live audio-video conference must allow for 
direct interaction between the person signing the spousal consent and 
the plan representative. A pre-recorded video of the person signing the 
spousal consent does not satisfy this requirement. Third, the person 
signing the spousal consent must transmit by electronic means a legible 
copy of the signed document directly to the plan representative on the 
same date that the spousal consent is signed. Fourth, after receiving 
the signed spousal consent, the plan representative must acknowledge 
that the signature has been witnessed by the plan representative and 
transmit the signed spousal consent, including the acknowledgement, 
back to the person signing the spousal consent under a system that 
satisfies the applicable notice requirements in Sec.  1.401(a)-21(c). 
Fifth, a recording of the audio-video conference during which the 
spousal consent was signed remotely must be made by the plan 
representative and, consistent with Sec.  1.401(a)-21(a)(3)(ii),\7\ 
must be retained by the plan in accordance with section 6001 (which 
provides rules relating to the maintenance of records, statements, and 
special returns). The first four requirements are similar to the 
requirements in the temporary relief notices, and the fifth requirement 
is an additional requirement suggested by commenters both supporting 
and opposing remote witnessing.
---------------------------------------------------------------------------

    \7\ Section 1.401(a)-21(a)(3)(ii) provides that the rules in the 
regulations do not alter the otherwise applicable requirements under 
the Code, such as the requirements relating to tax reporting, tax 
records, or substantiation of expenses, and refers to section 6001 
for rules relating to the maintenance of records, statements, and 
special returns. It also refers to section 101(e) of E-SIGN, which 
provides that if an electronic record of an applicable notice or a 
participant election is not maintained in a form that is capable of 
being retained and accurately reproduced for later reference, then 
the legal effect, validity, or enforceability of the electronic 
record may be denied.
---------------------------------------------------------------------------

    Section 1.401(a)-21(d)(6)(iii) of the proposed regulation continues 
to include rules that are in the existing regulation relating to 
electronic notarization. In particular, the proposed regulation 
provides that, if the physical presence requirements (or the 
alternative remote witnessing requirements) are satisfied, an 
electronic notarization acknowledging a signature (in accordance with 
section 101(g) of E-SIGN and State law applicable to a notary public) 
will not be denied legal effect.

C. Clarifying That Existing Special Rules for Participant Elections 
Apply to Spousal Consents

    The proposed regulation clarifies that the five special rules 
regarding use of an electronic medium in existing Sec.  1.401(a)-21(d) 
apply to spousal consents. First, the electronic medium under an 
electronic system used to make a participant election or spousal 
consent must be a medium that the person who is eligible to make the 
election or consent is effectively able to access. Second, the 
electronic system used in making a participant election or spousal 
consent must be reasonably designed to preclude any person other than 
the appropriate person from making the participant election or spousal 
consent. Whether this condition is satisfied is based on facts and 
circumstances, including whether the participant election or spousal 
consent has the potential for a conflict of interest between the 
persons involved in the election or consent. Third, the electronic 
system used in making a participant election or spousal consent must 
provide the person making the election or consent with a reasonable 
opportunity to review, confirm, modify, or rescind the terms of the 
election or consent before it becomes effective. Fourth, the person 
making the participant election or spousal consent must receive, within 
a reasonable time, a confirmation of the effect of the election or 
consent through either a written paper document or an electronic medium 
under a system that satisfies the requirements of Sec.  1.401(a)-21(b) 
or (c) (as if the confirmation were an applicable notice). Fifth, for 
spousal consents required to be witnessed by a plan representative or a 
notary public, the spousal consent must be witnessed in accordance with 
proposed Sec.  1.401(a)-21(d)(6).
    The requirements regarding use of an electronic medium in existing 
Sec.  1.401(a)-21(d) apply to participant elections, and that term is 
defined broadly in Sec.  1.401(a)-21(e)(6) to include any consent, 
election, request, agreement, or similar communication made by or from 
a participant, beneficiary, alternative payee, or an individual 
entitled to benefits. Under this broad definition, structured for 
simplicity, a participant election includes a spousal consent. However, 
in responding to the request for comments on whether to add spousal 
protections, commenters both supporting and opposing remote witnessing 
suggested explicitly applying the safeguards in Sec.  1.401(a)-21(d) to 
spousal consents, including the safeguard that confirmation of the 
spousal consent be provided to the spouse. Although these safeguards 
already apply to spousal consents under existing Sec.  1.401(a)-21(d), 
in response to these comments, the Treasury Department and the IRS 
believe that it is helpful to clarify and emphasize that these 
protections apply to spousal consents.
    Accordingly, the proposed regulation includes three clarifications 
with respect to spousal consents. First, the proposed regulation 
provides a separate definition for spousal consent. Section 1.401(a)-
21(e)(8) of the proposed regulation defines a spousal consent as a 
written consent signed by a participant's spouse that meets the 
requirements of section 417(a)(2)(A). Second, as described in the 
preceding paragraph, amendments are made in Sec.  1.401(a)-21(d) to 
clarify that each special rule regarding use of an electronic medium 
for participant elections applies to spousal consents. Third, the 
proposed regulation modifies Example 3 in Sec.  1.401(a)-21(f) to 
clarify how the protections in Sec.  1.401(a)-21(d) apply to spousal 
consents. Example 3 in existing Sec.  1.401(a)-21(f) illustrates the 
application of Sec.  1.401(a)-21(d) to a participant election for a 
plan loan and a related notarized spousal consent. The example 
describes how a plan can satisfy the requirements in Sec.  1.401(a)-
21(d)(4) and (5), by providing the participant an opportunity to review 
the election and a confirmation of the election. However, the example 
is silent on how those requirements apply to the participant's spouse 
with respect to the spousal consent. The modified example addresses the 
application of those requirements with respect to the spousal consent.
    The protections in Sec.  1.401(a)-21(d) (as clarified by the 
proposed regulation), including the ability for a spouse to review and 
rescind a spousal consent, provide spouses using an electronic medium 
to sign a spousal consent (including the use of remote witnessing, 
whether by a notary public or a plan representative) with protections 
that are not provided to spouses who do not sign spousal consents using 
an electronic medium. Section 1.401(a)-20, Q&A-30, provides that, in 
general, a plan may preclude a spouse from revoking consent once it has 
been given, but that a participant must always be allowed to change an 
election during the applicable election period. However, as provided in 
existing Sec.  1.401(a)-21(d) and clarified in this proposed 
regulation, Sec.  1.401(a)-21(d)(4) requires a plan to give the spouse, 
for a spousal consent made

[[Page 80506]]

using an electronic medium that is subject to Sec.  1.401(a)-21(d), a 
reasonable opportunity to review, confirm, modify, or rescind the terms 
of the spousal consent before it becomes effective.

D. Balancing of Interests

    The Treasury Department and the IRS understand that there are 
strongly held points of view both in support of and in opposition to 
remote witnessing. As previously discussed in Part D of the Background 
section of this preamble, under the heading Comments Relating to Remote 
Witnessing of Spousal Consents, commenters supporting remote witnessing 
argued that remote witnessing provides a valuable option to 
participants and spouses (including those with limited mobility), by 
offering an essential convenience during a period in which more people 
rely on technological advances for their financial transactions. On the 
other hand, commenters opposing remote witnessing argued that spousal 
pension rights particularly affect retirement security for women and 
that any decision to waive those rights should be afforded maximum 
safeguards.\8\
---------------------------------------------------------------------------

    \8\ The Treasury Department and the IRS have provided sample 
language, in Notice 97-10, 1997-2 IRB 41, which is designed to make 
it easier for spouses of participants to understand their rights to 
survivor annuities under qualified plans. The language is designed 
to assist plan administrators in preparing spousal consent forms 
that meet the statutory requirements.
---------------------------------------------------------------------------

    In drafting the proposed regulation, the Treasury Department and 
the IRS have worked to strike a balance between the competing interests 
identified by commenters by offering remote witnessing as an option to 
those who elect to use it, but still requiring conditions on remote 
witnessing that are either similar to or more protective than the 
conditions in the temporary relief notices. Many of these conditions, 
including prohibiting a plan from requiring remote witnessing of 
spousal consents by a notary public and requiring that a plan 
representative record the audio-video conference during which a spousal 
consent is signed remotely (and retain the recording), were suggested 
both by commenters supporting and by commenters opposing remote 
witnessing.
    In addition, the Treasury Department and the IRS believe that, by 
clarifying that the protections in Sec.  1.401(a)-21(d) apply both to 
participant elections and spousal consents, the proposed regulation 
emphasizes several essential protections for a spouse using an 
electronic medium to sign a spousal consent. Those protections include 
requiring a plan to send a spouse confirmation of a spousal consent 
separate from the documents sent to the participant making the election 
and giving the spouse the ability to review and rescind the spousal 
consent.

Proposed Applicability Date

    This regulation is proposed to apply beginning on the date that is 
six months after publication of the Treasury decision adopting these 
rules as a final regulation in the Federal Register. Prior to the 
applicability date of the final regulation, taxpayers may rely on the 
rules set forth in this notice of proposed rulemaking.

Availability of IRS Documents

    For copies of recently issued revenue procedures, revenue rulings, 
notices and other guidance published in the Internal Revenue Bulletin, 
please visit the IRS website at www.irs.gov or contact the 
Superintendent of Documents, U.S. Government Publishing Office, 
Washington, DC 20402.

Special Analyses

I. Regulatory Impact Analysis

    This proposed regulation is not subject to review under section 
6(b) of Executive Order 12866 pursuant to the Memorandum of Agreement 
(April 11, 2018) between the Treasury Department and the Office of 
Management and Budget regarding review of tax regulations.

II. Paperwork Reduction Act

    The collections of information referenced in this proposed 
regulation were previously reviewed and approved by the Office of 
Management and Budget in accordance with the Paperwork Reduction Act of 
1995 (44 U.S.C. 3507(d)) under control number 1545-1632.
    Comments on the collection of information and the accuracy of 
estimated average annual burden and suggestions for reducing this 
burden should be sent to the Office of Management and Budget, Attn: 
Desk Officer for the Department of the Treasury, Office of Information 
and Regulatory Affairs, Washington, DC 20503, with copies to the 
Internal Revenue Service, Attn: IRS Reports Clearance Officer, 
SE:W:CAR:MP:T:T:SP; Washington, DC 20224. Comments on the collection of 
information should be received by March 30, 2023.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a valid 
control number assigned by the Office of Management and Budget.
    Books or records relating to a collection of information must be 
retained as long as their contents may become material in the 
administration of any internal revenue law. Generally, tax returns and 
tax return information are confidential, as required by 26 U.S.C. 6103.

III. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act, it is hereby certified 
that this regulation will not have a significant economic impact on a 
substantial number of retirement plans, or their administrators and 
sponsors. This certification is based on several factors. First, the 
provisions of the proposed regulation that permit the remote witnessing 
of spousal consents are voluntary; plans are not required to permit 
remote witnessing, and spouses are not required to use remote 
witnessing even if a plan sponsor chooses to make remote witnessing 
available as an option under its plan. Accordingly, it is anticipated 
that a sponsor will permit remote witnessing under its plan only if the 
sponsor concludes that remote witnessing is more convenient and less 
burdensome for the plan and its participants and beneficiaries. 
Similarly, it is anticipated that a spouse in a plan that permits 
remote witnessing will use remote witnessing only if the spouse 
concludes that remote witnessing is more convenient and less 
burdensome. Further, the requirements for remote witnessing in the 
proposed regulation are substantially similar to requirements already 
imposed under the temporary relief notices, and the new requirements 
imposed under the proposed regulation with respect to witnessing by a 
plan representative (that is, that the plan must record the audio-video 
conference and retain the recording) were suggested by commenters 
(including commenters supporting remote witnessing).
    Second, the provisions of the proposed regulation relating to the 
application of the requirements in Sec.  1.401(a)-21(d) to spousal 
consents are merely clarifications of existing regulations. As 
previously stated, under existing Sec.  1.401(a)-21, spousal consents 
are a subset of participant elections, so that the requirements in 
Sec.  1.401(a)-21(d) apply to spousal consents. Thus, this proposed 
regulation does not impose new compliance burdens and is not expected 
to result in economically meaningful changes in behavior related to 
existing Sec.  1.401(a)-21.
    For the reasons stated, a regulatory flexibility analysis under the 
Regulatory

[[Page 80507]]

Flexibility Act is not required. The Treasury Department and the IRS 
invite comments on the impact of this regulation on small entities. 
Pursuant to section 7805(f) of the Code, this notice of proposed 
rulemaking has been submitted to the Chief Counsel of Advocacy of the 
Small Business Administration for comment on its impact on small 
business.

Comments and Public Hearing

    Before these proposed amendments to the regulation are adopted as a 
final regulation, consideration will be given to comments that are 
submitted timely to the IRS as prescribed in the preamble under the 
ADDRESSES section. The Treasury Department and the IRS request comments 
on all aspects of the proposed regulation. Any electronic comments and 
paper comments submitted will be made available at www.regulations.gov 
or upon request.
    A telephonic public hearing has been scheduled for April 11, 2023, 
beginning at 10 a.m. ET. The rules of 26 CFR 601.601(a)(3) apply to the 
hearing. Persons who wish to present oral comments by telephone at the 
public hearing must submit electronic or written comments and an 
outline of the topics to be addressed and the time to be devoted to 
each topic by March 30, 2023 as prescribed in the preamble under the 
ADDRESSES section. For those requesting to speak during the public 
hearing, send an outline of topic submissions electronically via the 
Federal eRulemaking Portal at www.regulations.gov (indicate IRS and 
REG-114666-22).
    Individuals who want to testify (by telephone) at the public 
hearing must send an email to [email protected] to receive the 
telephone number and access code for the public hearing. The subject 
line of the email must contain the regulation number REG-114666-22 and 
the word TESTIFY. For example, the subject line may say: Request to 
TESTIFY at Hearing for REG-114666-22. The email should include a copy 
of the speaker's public comments and outline of topics. Individuals who 
want to attend (by telephone) the public hearing must also send an 
email to [email protected] to receive the telephone number and 
access code for the public hearing. The subject line of the email must 
contain the regulation number REG-114666-22 and the word ATTEND. For 
example, the subject line may say: Request to ATTEND Hearing for REG-
114666-22. To request special assistance during the public hearing, 
contact the Publications and Regulations Branch of the Office of 
Associate Chief Counsel (Procedure and Administration) by sending an 
email to [email protected] (preferred) or by telephone at (202) 
317-5177 (not a toll-free number).
    A period of 10 minutes will be allocated to each person for making 
comments. After the deadline for receiving outlines has passed, the IRS 
will prepare an agenda containing the schedule of speakers. Copies of 
the agenda will be made available at www.regulations.gov, search IRS 
and REG-114666-22. Copies of the agenda will also be available by 
emailing a request to [email protected]. Please put ``REG-114666-
22 Agenda Request'' in the subject line of the email.

Drafting Information

    The principal authors of this regulation are Arslan Malik and 
Pamela Kinard, Office of Associate Chief Counsel (Employee Benefits, 
Exempt Organizations, and Employment Taxes (EEE)). However, other 
personnel from the IRS and the Treasury Department participated in the 
development of this regulation.

List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

Proposed Amendments to the Regulations

    Accordingly, the Treasury Department and the IRS are proposing to 
amend 26 CFR part 1 as follows:

PART 1--INCOME TAXES

0
Paragraph 1. The authority citation for part 1 continues to read in 
part as follows:

    Authority:  26 U.S.C. 7805 * * *

0
Par. 2. Section 1.401(a)-21 is amended by:
0
1. Revising the section heading;
0
2. Revising the first sentence of paragraph (a)(1)(i) and the heading 
of paragraph (a)(1)(ii);
0
3. Revising paragraphs (a)(1)(ii)(A) and (C);
0
4. Revising paragraphs (a)(2)(i) and (ii);
0
5. Revising the heading of paragraph (a)(2)(iii);
0
6. Revising the last sentence of paragraph (a)(3)(i) and revising 
paragraph (a)(3)(ii);
0
7. Revising the heading and first sentence of paragraph (a)(4);
0
8. Revising paragraph (d);
0
9. Revising paragraphs (e)(4) and (6) and adding paragraph (e)(8);
0
10. In paragraph (f), designating Examples 1 through 6 as paragraphs 
(f)(1) through (6), respectively;
0
11. Revising newly designated paragraph (f)(3);
0
12. Revising paragraph (g).
    The revisions and addition read as follows:


Sec.  1.401(a)-21   Rules relating to the use of an electronic medium 
to provide applicable notices and to make participant elections and 
spousal consents.

    (a) * * *
    (1) * * *
    (i) * * * This section provides rules relating to the use of an 
electronic medium to provide applicable notices and to make participant 
elections and spousal consents with respect to retirement plans, 
employee benefit arrangements, and individual retirement plans 
described in paragraph (a)(2) of this section. * * *
    (ii) Notices, elections, and consents required to be in writing or 
in written form--(A) In general. The rules of this section must be 
satisfied for an electronic medium to be used to provide an applicable 
notice or make a participant election or spousal consent if the notice, 
election, or consent is required to be in writing or in written form 
under the Internal Revenue Code, Department of Treasury regulations, or 
other guidance published in the Internal Revenue Bulletin by the 
Commissioner.
* * * * *
    (C) Rules relating to participant elections and spousal consents. A 
participant election or a spousal consent that is made using an 
electronic medium is treated as being provided in writing or in written 
form if the requirements of paragraphs (a)(5) and (d) of this section 
are satisfied.
* * * * *
    (2) * * *
    (i) Notices, elections, or consents under retirement plans. The 
rules of this section apply to any applicable notice, participant 
election, or spousal consent relating to the following retirement 
plans: a qualified retirement plan under sections 401(a) or 403(a); a 
section 403(b) plan; a simplified employee pension (SEP) under section 
408(k); a simple retirement plan under section 408(p); or an eligible 
governmental plan under section 457(b).
    (ii) Notices or elections under other employee benefit 
arrangements. The rules of this section also apply to any applicable 
notice or participant election relating to the following employee 
benefit arrangements: an accident and health plan or arrangement under 
sections 104(a)(3) and 105; a cafeteria plan under section 125; an 
educational assistance program under section 127; a qualified 
transportation fringe program under section 132; an Archer MSA under 
section 220; or a health savings account under section 223.

[[Page 80508]]

    (iii) Notices or elections under individual retirement plans. * * *
    (3) * * *
    (i) * * * The rules in this section also do not apply to section 
411(a)(3)(B) of the Code (relating to suspension of benefits), section 
4980B(f)(6) (relating to an individual's COBRA rights), or any other 
Code provision over which the Department of Labor or Pension Benefit 
Guaranty Corporation has similar interpretative authority.
    (ii) Recordkeeping and other requirements. The rules in this 
section apply only with respect to applicable notices, participant 
elections, and spousal consents relating to a person's rights under a 
retirement plan, an employee benefit arrangement, or an individual 
retirement plan. Thus, the rules in this section do not alter the 
otherwise applicable requirements under the Code, such as the 
requirements relating to tax reporting, tax records, or substantiation 
of expenses. See section 6001 for rules relating to the maintenance of 
records, statements, and special returns. See also section 101(e) of E-
SIGN, which provides that if an electronic record of an applicable 
notice, a participant election, or a spousal consent is not maintained 
in a form that is capable of being retained and accurately reproduced 
for later reference, then the legal effect, validity, or enforceability 
of the electronic record may be denied.
    (4) General requirements related to applicable notices, participant 
elections, and spousal consents. The rules of this section supplement 
the general requirements related to each applicable notice, participant 
election, and spousal consent. * * *
* * * * *
    (d) Special rules for participant elections and spousal consents--
(1) In general. This paragraph (d) is satisfied for participant 
elections or spousal consents if the conditions described in paragraphs 
(d)(2) through (6) of this section are satisfied.
    (2) Effective ability to access. The electronic medium under an 
electronic system used to make a participant election or spousal 
consent must be a medium that the person who is eligible to make the 
election or consent is effectively able to access. If the appropriate 
person is not effectively able to access the electronic medium for 
making the election or consent, the election or consent will not be 
treated as made available to that person. Thus, for example, the 
election will not be treated as made available for purposes of the 
rules under section 401(a)(4).
    (3) Authentication. The electronic system used in making a 
participant election or spousal consent must be reasonably designed to 
preclude any person other than the appropriate person from making the 
election or consent. Whether this condition is satisfied is based on 
facts and circumstances, including whether the election or consent has 
the potential for a conflict of interest between the persons involved 
in the election or consent.
    (4) Opportunity to review. The electronic system used in making a 
participant election or spousal consent must provide the person making 
the election or consent with a reasonable opportunity to review, 
confirm, modify, or rescind the terms of the election or consent before 
the election or consent becomes effective.
    (5) Confirmation of action. The person making the participant 
election or spousal consent must receive, within a reasonable time, a 
confirmation of the effect of the election or the consent under the 
terms of the plan or arrangement through either a written paper 
document or an electronic medium under a system that satisfies the 
requirements of either paragraph (b) or (c) of this section (as if the 
confirmation were an applicable notice).
    (6) Spousal consents required under the Code to be witnessed by a 
notary public or a plan representative--(i) Witnessing of spousal 
consent in physical presence of notary public or plan representative. 
Except as provided in paragraph (d)(6)(ii) of this section, in the case 
of a spousal consent that is required to be witnessed by a notary 
public or a plan representative (such as a spousal consent under 
section 417), the signature of the person signing the consent must be 
witnessed in the physical presence of a notary public or a plan 
representative.
    (ii) Alternative to witnessing of spousal consent in physical 
presence of notary public or plan representative--(A) Remote witnessing 
of spousal consent by notary public--(1) In general. As an alternative 
to witnessing of a spousal consent in the physical presence of a notary 
public described in paragraph (d)(6)(i) of this section, a plan may 
accept a consent witnessed remotely by a notary public if the signature 
of the person signing the consent is witnessed by the notary public 
using live audio-video technology, the requirements of paragraph (d) of 
this section for consents are satisfied, and the remote witnessing is 
consistent with State law requirements that apply to the notary public.
    (2) In-person notarization must be accepted by plan. A plan that 
accepts spousal consents witnessed remotely by a notary public must 
also accept consents witnessed in the physical presence of a notary 
public.
    (B) Remote witnessing of spousal consent by plan representative. As 
an alternative to witnessing of a spousal consent in the physical 
presence of a plan representative described in paragraph (d)(6)(i) of 
this section, a plan may accept a consent witnessed remotely by a plan 
representative if the signature of the person signing the consent is 
witnessed by the plan representative using live audio-video technology, 
the requirements of paragraph (d) of this section are satisfied, and 
the additional requirements described in paragraphs (d)(6)(ii)(B)(1) 
through (5) of this section are satisfied.
    (1) Presentation of valid photo ID. The person signing the spousal 
consent must present a valid photo ID to the plan representative during 
the live audio-video conference (for example, the person signing the 
consent may not merely transmit a copy of the photo ID to the plan 
representative prior to or after the witnessing).
    (2) Direct interaction. The live audio-video conference must allow 
for direct interaction between the person signing the spousal consent 
and the plan representative (for example, a pre-recorded video of the 
person signing the consent is not sufficient).
    (3) Same-day document transmission. The person signing the spousal 
consent must transmit by electronic means a legible copy of the signed 
document directly to the plan representative on the same date that the 
document is signed.
    (4) Plan representative acknowledgement. After receiving the signed 
document, the plan representative must acknowledge that the signature 
has been witnessed by the plan representative in accordance with 
paragraph (d)(6)(ii)(B) of this section and transmit the signed 
document, including the acknowledgement, back to the person signing the 
spousal consent under a system that satisfies the applicable notice 
requirements in paragraph (c) of this section.
    (5) Recording and retention of audio-video conference. A recording 
of the audio-video conference during which the spousal consent was 
signed remotely must be made by the plan representative and, consistent 
with paragraph (a)(3)(ii) of this section, must be retained by the plan 
in accordance with section 6001.
    (iii) Electronic notarization permitted. If the requirements of 
paragraph (d)(6)(i) or (d)(6)(ii)(A) of this section are

[[Page 80509]]

satisfied, an electronic notarization acknowledging a signature (in 
accordance with section 101(g) of E-SIGN and State law applicable to a 
notary public) will not be denied legal effect.
    (e) * * *
    (4) Electronic record. The term electronic record means an 
applicable notice, a participant election, or a spousal consent that is 
created, generated, sent, communicated, received, or stored by 
electronic media.
* * * * *
    (6) Participant election. The term participant election includes 
any election, request, agreement, or similar communication made by or 
from a participant, beneficiary, alternate payee, or person entitled to 
benefits under a retirement plan, employee benefit arrangement, or 
individual retirement plan as described in paragraph (a)(2) of this 
section.
* * * * *
    (8) Spousal consent. The term spousal consent means a written 
consent signed by a participant's spouse that meets the requirements of 
section 417(a)(2)(A).
    (f) * * *
* * * * *
    (3) Example 3. (i) Facts involving participant election for plan 
loan and related notarized spousal consent. Plan C, a qualified money 
purchase pension plan, permits a married participant to request a plan 
loan through Plan C's website with the notarized consent of the spouse. 
Under Plan C's system for requesting a plan loan, a participant must 
enter the participant's account number and personal identification 
number (PIN) (in order to preclude any person other than the 
participant from making the election) and the participant's email 
address. The information entered by the participant must match the 
information in Plan C's records in order for the transaction to 
proceed. Participant M, a married participant, is effectively able to 
access the website available to apply for a plan loan. Participant M 
completes the loan documents on Plan C's website.
    (A) After receiving the completed loan documents, Plan C notifies 
Participant M that Participant M's spouse must sign a spousal consent 
for the plan loan that is witnessed by a notary public or plan 
representative. The spousal consent form includes sections for the 
signature, email address, and mailing address of Participant M's 
spouse. Participant M's spouse signs the spousal consent for the plan 
loan, and the signature is witnessed in the physical presence of a 
notary public. Participant M's spouse provides the notarized spousal 
consent to Participant M, and Participant M scans the notarized spousal 
consent and uploads it to Plan C's website.
    (B) After Plan C receives the spousal consent, Plan C sends an 
email to Participant M with attached loan documents, giving Participant 
M a reasonable period of time to review and confirm the loan documents 
and to determine whether the plan loan should be modified (such as 
editing the account number or decreasing the loan amount) or rescinded. 
Using the email address provided on the spousal consent form, Plan C 
also sends an email to Participant M's spouse that attaches the signed 
spousal consent and gives Participant M's spouse a specified reasonable 
period of time to review and confirm the spousal consent and to 
determine whether the spousal consent should be modified or rescinded. 
The email also notifies Participant M's spouse that Participant M's 
spouse may request a written paper copy of the signed spousal consent 
and that, if Participant M's spouse requests a written paper copy of 
the signed spousal consent, it will be provided at no extra charge.
    (C) Participant M makes no changes to the loan documents, and 
Participant M's spouse makes no changes to the spousal consent. After 
Plan C processes the loan documents, including the notarized spousal 
consent, Plan C notifies Participant M that the loan documents have 
been processed. In addition, the notice provides that Participant M may 
request a written paper copy of the loan documents and that, if 
Participant M requests a written paper copy of the loan documents, it 
will be provided at no charge. Plan C retains an electronic copy of the 
loan documents, including the notarized spousal consent, in a form that 
is capable of being retained and accurately reproduced for later 
reference by all parties.
    (ii) Conclusion. In this paragraph (f)(3) (Example 3), the 
electronic transmission of the participant election for a plan loan and 
related notarized spousal consent satisfies the requirements of 
paragraphs (a), (c), and (d) of this section.
* * * * *
    (g) Applicability date--(1) In general. Except as otherwise 
provided in paragraph (g)(2) of this section, the rules provided in 
this section apply to applicable notices provided and to participant 
elections and spousal consents made on or after (the date that is six 
months after the final regulation is published in the Federal 
Register).
    (2) Special applicability date rules for periods before the general 
applicability date. Section 1.401(a)-21, as it appeared in the April 1, 
2022, edition of 26 CFR part 1, applies for periods before the general 
applicability date in paragraph (g)(1) of this section.

Melanie R. Krause,
Acting Deputy Commissioner for Services and Enforcement.
[FR Doc. 2022-28327 Filed 12-29-22; 8:45 am]
BILLING CODE 4830-01-P