66054 Federal Register / Vol. 60, No. 244 / Wednesday, December 20, 1995 / Rules and Regulations

PENSION BENEFIT GUARANTY

CORPORATION

29 CFR Part 2628

RIN 1212–AA78

Annual Financial and Actuarial

Information Reporting

AGENCY: Pension Benefit Guaranty

Corporation.

ACTION: Final rule.

SUMMARY: The Pension Benefit Guaranty

Corporation is amending its regulations

to implement section 4010 of the

Employee Retirement Income Security

Act of 1974, as amended by the

Retirement Protection Act of 1994.

Section 4010 requires controlled groups

maintaining plans with large amounts of

underfunding to submit annually to the

PBGC financial and actuarial

information as prescribed by the PBGC.

EFFECTIVE DATE: January 19, 1996.

FOR FURTHER INFORMATION CONTACT:

Frank H. McCulloch, Senior Counsel,

Office of the General Counsel, Pension

Benefit Guaranty Corporation, 1200 K

Street NW., Washington, DC 20005–

4026; 202–326–4116 (202–326–4179 for

TTY and TDD).

SUPPLEMENTARY INFORMATION: On July 6,

1995, the PBGC published in the

Federal Register (60 FR 35308) a

proposed regulation implementing

section 4010 of ERISA. The PBGC

received over 20 comments. Section

4010 requires a small number of large

controlled groups—those with covered

pension plans that (1) have more than

$50 million in unfunded vested benefits

in the aggregate, (2) have missed

contributions in excess of $1 million, or

(3) have received funding waivers in

excess of $1 million—to file annual

financial and actuarial information.

Who Must File—$50 Million Test

In response to comments, the final

regulation gives controlled groups the

option of using 100% of the 30-year

Treasury interest rate and the fair

market value of assets (instead of 80%

of the 30-year rate and the actuarial

value of assets) solely for purposes of

calculating the $50 million threshold

test. These are the standards that will

apply for calculating the variable rate

premium under ERISA section 4006

after the Secretary of the Treasury

adopts revised mortality tables for post1999 plan years. Consistent with the

post-1999 rules, the PBGC is

conditioning use of the option on the

use of prescribed mortality tables. For

now, controlled groups may continue to

use GAM–83 mortality tables. If the

PBGC amends the mortality tables under

its valuation regulation before the

Secretary of the Treasury’s revised

tables go into effect, the updated

mortality tables must be used.

The PBGC did not adopt the

suggestion that the PBGC waive

reporting if the controlled group’s plans

meet some prescribed funding

percentage or are fully funded on an

ongoing basis. The absolute size of the

underfunding represents a large

exposure to the PBGC and, in many

cases, to plan participants.

Who Must File—Missed Contributions

and Waivers in Excess of $1 Million

In response to comments, the final

regulation provides that missed

contributions will not lead to a

reporting obligation if they are paid

within a ten-day grace period. The final

regulation also clarifies that, during the

amortization period of a minimum

funding waiver, the waiver will be

considered to be outstanding (thereby

requiring reporting) unless there is a

credit balance in the funding standard

account that is sufficient to pay the

outstanding balance of the waiver and

not available to satisfy future minimum

funding requirements.

Exempt Entities

In response to comments, the final

regulation exempts the controlled group

from submitting information for de

minimis entities (‘‘exempt entities’’) and

exempts those entities from all reporting

requirements. An entity is de minimis if

it does not sponsor a nonexempt plan

and its revenue, net assets and annual

operating income are five percent or less

of the controlled group’s revenue, net

assets and annual operating income.

Alternatively, the net asset test or the

annual operating income test is satisfied

if an entity’s net assets or annual

operating income, respectively, is $5

million or less.

Commenters suggested that the PBGC

exempt certain foreign members and

new members of controlled groups from

the regulation’s requirements. In most

cases, foreign corporations should not

present problems for controlled groups.

A foreign corporation with U.S.

subsidiaries or a domestic corporation

with foreign subsidiaries will normally

include each foreign entity in its

consolidated financial statements. The

regulation does not require individual

financial information concerning a

foreign company covered by

consolidated financial statements unless

it sponsors a U.S. plan. The PBGC will

consider waivers or extensions in the

limited cases where foreign companies

are not included in consolidated

financial statements and are not already

exempt under the new de minimis

exemption.

Other commenters requested a grace

period with respect to entities that

become members of a controlled group

late in the information year. The de

minimis rule will deal with many of

these situations. Filers may also request

waivers or extensions where

information about a filer or a plan is not

available by the due date because the

filer entered the controlled group late in

an information year.

Actuarial Information

The proposed regulation required

filers to provide the value of plan

benefit liabilities and assets, certain

participant data matrices, and an

actuarial valuation report containing or

supplemented with specified

information. The final regulation

eliminates the requirement that

controlled groups routinely submit the

participant data matrices. (The PBGC

may request this information.) The

regulation permits the enrolled actuary

to qualify the actuarial certification in

the same manner as is permitted for the

Form 5500, Schedule B.

Commenters objected to having to

determine the value of benefit liabilities

using the PBGC’s termination

assumptions. The PBGC needs this

information to determine the risk of a

transaction to participants and to

premium payers and to determine

whether to terminate a plan. Other

liability measures do not reflect plan

underfunding on a termination basis;

they can seriously understate the

PBGC’s exposure for plans subject to

this regulation. The comments

confirmed that the cost of calculating

benefit liabilities consists mainly of a

one-time cost for adding the PBGC’s

termination assumptions to existing

computer programs. The final regulation

simplifies the calculation somewhat by

providing for use only of the PBGC’s

annuity methodology (rather than both

its annuity and lump sum

methodology).

Exempt Plans

The proposed regulation exempted

reporting for plans with fewer than 500

participants and plans with no

unfunded benefit liabilities (using the

PBGC’s termination assumptions), other

than plans with funding waivers or

missed contributions. The final

regulation keeps but simplifies this

exemption. Solely for exemption

purposes, the controlled group may

determine the value of a plan’s benefit

liabilities using the plan’s retirement

assumptions (instead of the PBGC’s

expected retirement age assumptions).
Federal Register / Vol. 60, No. 244 / Wednesday, December 20, 1995 / Rules and Regulations 66055

Additional Information

Some commenters questioned the

provision under which the PBGC may

require filers to submit additional

information within ten days.

Commenters suggested that the response

time be lengthened, that the type of

information that may be requested be

limited, or that the provision be deleted.

It is the PBGC’s ability to get the

additional information quickly that

allows the PBGC to limit the

information that controlled groups must

submit on a routine basis. The PBGC

will grant extensions of time to respond

where a filer demonstrates that it is

making a reasonable and good faith

effort to respond to the information

request.

In response to comments, the final

regulation clarifies that this additional

information is information that could

have been required annually (i.e.,

information that is necessary to

determine a plan’s assets and liabilities,

or the financial status of a filer, for any

period through the end of the

information year).

Confidentiality

Some commenters expressed concern

about the confidentiality of filer tax

information. The regulation does not

require the submission of a filer’s tax

return as part of an annual report; it

merely permits the filer to substitute its

tax return for the audited or unaudited

financial statements required by the

statute. Moreover, the statute and

regulation provide for confidentiality of

information similar to that afforded to

Hart-Scott-Rodino antitrust

submissions. Filers may request that

information they submit not be

disclosed to other members of their

controlled group.

Information Year

One commenter suggested that the

regulation eliminate the concept of an

information year and that filers instead

be required to use the same reporting

year as they use for Form 5500. The

information year is a simplifying

measuring period that does not require

any new reports. For most controlled

groups the information year will be the

same as the fiscal year on which they

prepare their consolidated returns. (The

Form 5500 reporting year is based on

each plan’s plan year, which may not

match the plan years of other plans or

the fiscal years of controlled group

members.)

In response to comments, the final

regulation excludes the fiscal years of

exempt entities in determining the

information year for a controlled group.

The final regulation clarifies that the

controlled group need not restate

consolidated financial statements solely

because they include information on

entities that are not members of the

controlled group or that are exempt

entities.

Due Date

Commenters questioned the due date

for information—105 days after the

close of a filer’s information year. This

due date is coordinated with the

Securities and Exchange Commission’s

annual reporting date for public

companies. In most instances,

controlled groups will have prepared

audited financial statements prior to

that date for public filing and can

simply refer to those filings in their

submissions to the PBGC. The actuarial

information required by that date is

similar to pension information required

by Financial Accounting Standard 87

that must be included in those financial

statements. (The regulation generally

allows other actuarial information to be

delayed until 15 days after the filing

deadline for the Form 5500.)

If the due date presents problems for

non-public companies or in other

unusual circumstances, filers should

request extensions of the deadlines.

Filers experiencing problems in

preparing or submitting required

information should apply for extensions

as early as possible, rather than shortly

before the due date.

E.O. 12866 and Regulatory Flexibility

Act

The PBGC has determined that this

action is not a ‘‘significant regulatory

action’’ under the criteria set forth in

Executive Order 12866. The provisions

of this regulation implement policy

decisions made by Congress in requiring

filers to provide audited financial

statements and other required

information annually to the PBGC. The

provisions reflect the PBGC’s

interpretation of the statutory standards

and prescribe the form, time, and

manner in which the required

information should be submitted.

Under section 605(b) of the

Regulatory Flexibility Act, the PBGC

certifies (for the reasons stated in the

proposed rule at 60 FR 35308, 35310,

July 6, 1995) that this regulation will not

have a significant economic impact on

a substantial number of small entities.

Accordingly, as provided in section 605

of the Regulatory Flexibility Act (5

U.S.C. 601, et seq.), sections 603 and

604 do not apply.

Paperwork Reduction Act

The collection of information

requirements in this regulation have

been approved by the Office of

Management and Budget under control

number 1212–0049. An agency may not

conduct or sponsor, and a person is not

required to respond to, a collection of

information unless it displays a

currently valid OMB control number.

Responses to this collection of

information are mandatory. (See ERISA

sections 4002(b)(3) and 4010.) The

PBGC needs this information, and will

use it, to identify controlled groups with

severely underfunded plans, to

determine the financial status of

controlled group members and evaluate

the potential risk of future losses

resulting from corporate transactions

and the need to take legal action, and to

negotiate agreements under which

controlled groups would provide

additional plan funding. Confidentiality

of information submitted is provided for

in § 2628.12 of the regulation. (See

ERISA section 4010(c).)

The PBGC estimates that the average

annual burden for this collection of

information will be 13.2 hours and

$24,315 for each of approximately 100

controlled groups. Comments

concerning the accuracy of this burden

estimate and any suggestions for

reducing the burden of this collection of

information should be submitted to the

PBGC’s Office of General Counsel, 1200

K Street, NW, Suite 340, Washington,

DC 20005–4026.

List of Subjects in 29 CFR Part 2628

Employee benefit plans, Pension

insurance, Pensions, Reporting and

recordkeeping requirements.

For the reasons set forth above, the

PBGC is amending subchapter C,

chapter XXVI of 29 CFR by adding a

new part 2628 to read as follows:

PART 2628—ANNUAL FINANCIAL AND

ACTUARIAL INFORMATION

REPORTING

Sec.

2628.1 Purpose and scope.

2628.2 Definitions.

2628.3 Filing requirement.

2628.4 Filers.

2628.5 Information year.

2628.6 Information to be filed.

2628.7 Identifying information.

2628.8 Plan actuarial information.

2628.9 Financial information.

2628.10 Due date and filing with the PBGC.

2628.11 Waivers and extensions.

2628.12 Confidentiality of information

submitted.

2628.13 Penalties.

2628.14 OMB control number.

Authority: 29 U.S.C. 1302(b)(3); 29 U.S.C.

1310
66056 Federal Register / Vol. 60, No. 244 / Wednesday, December 20, 1995 / Rules and Regulations

§ 2628.1 Purpose and scope.

(a) Purpose. This part prescribes the

requirements for annual filings with the

PBGC under section 4010 of the Act.

(b) Scope. This part applies to filers

for any information year ending on or

after December 31, 1995.

§ 2628.2 Definitions.

For purposes of this part—

(a) Act means the Employee

Retirement Income Security Act of 1974,

as amended.

(b) Code means the Internal Revenue

Code of 1986, as amended.

(c) Contributing sponsor means a

person who is a contributing sponsor as

defined in section 4001(a)(13) of the

Act.

(d) Controlled group means, with

respect to any person, a group

consisting of that person and all other

persons under common control with

that person, determined under part 2612

of this chapter.

(e) Exempt entity means a person who

does not have to file information and

about whom information does not have

to be filed, as described in § 2628.4(d)

of this part.

(f) Exempt plan means a plan about

which actuarial information does not

have to be filed, as described in

§ 2628.8(c) of this part.

(g) Fair market value of the plan’s

assets means the fair market value of the

plan’s assets at the end of the plan year

ending within the filer’s information

year (determined without regard to any

contributions receivable).

(h) Filer means a person who is

required to file reports, as described in

§ 2628.4 of this part.

(i) Fiscal year means, with respect to

a person, the person’s annual

accounting period or, if the person has

not adopted a closing date, the calendar

year.

(j) Information year means the year

determined under § 2628.5 of this part.

(k) Person means an individual,

partnership, joint venture, corporation,

mutual company, joint-stock company,

trust, estate, unincorporated

organization, association, or employee

organization representing any group of

participants for purposes of collective

bargaining.

(l) Plan means a single-employer plan,

as defined in section 4001(a)(15) of the

Act, to which Title IV of the Act applies.

(m) Plan year means the calendar,

policy, or fiscal year on which the

records of a plan are kept.

§ 2628.3 Filing requirement.

(a) In general. Except as provided in

§ 2628.8(c) (relating to exempt plans)

and except where waivers have been

granted under § 2628.11 of this part,

each filer shall submit to the PBGC

annually, on or before the due date

specified in § 2628.10, all information

specified in § 2628.6(a) with respect to

all members of a controlled group and

all plans maintained by members of a

controlled group.

(b) Single controlled group

submission. Any filer or other person

may submit the information specified in

§ 2628.6(a) on behalf of one or more

members of a filer’s controlled group. If

a person other than a filer submits the

information, the submission must also

include a written power of attorney

signed by a filer authorizing the person

to act on behalf of one or more filers.

§ 2628.4 Filers.

(a) General. A contributing sponsor of

a plan and each member of the

contributing sponsor’s controlled group

is a filer with respect to an information

year (unless exempted under paragraph

(d) of this section) if—

(1) the aggregate unfunded vested

benefits of all plans (including any

exempt plans) maintained by the

members of the contributing sponsor’s

controlled group exceed $50 million

(disregarding those plans with no

unfunded vested benefits);

(2) any member of a controlled group

fails to make a required installment or

other required payment to a plan and,

as a result, the conditions for imposition

of a lien described in section 302(f)(1)

(A) and (B) of the Act or section

412(n)(1) (A) and (B) of the Code have

been met during the information year,

and the required installment or other

required payment is not made within

ten days after its due date; or

(3) any plan maintained by a member

of a controlled group has been granted

one or more minimum funding waivers

under section 303 of the Act or section

412(d) of the Code totaling in excess of

$1 million that, as of the end of the plan

year ending within the information year,

are still outstanding (determined in

accordance with paragraph (c) of this

section).

(b) Unfunded vested benefits.

(1) General. Except as provided in

paragraph (b)(2) of this section, for

purposes of the $50 million test in

paragraph (a)(1) of this section, the

value of a plan’s unfunded vested

benefits is determined at the end of the

plan year ending within the filer’s

information year in accordance with

section 4006(a)(3)(E)(iii) of the Act and

§ 2610.23 of this chapter (without

reference to the exemptions and special

rules under § 2610.24).

(2) Optional assumptions. Prior to the

first information year in which the

mortality assumptions prescribed under

section 302(d)(7)(C)(ii)(II) of the Act

apply to all of the plans maintained by

a controlled group, the value of

unfunded vested benefits for a plan may

be determined by substituting for the

respective assumptions used under

paragraph (b)(1) of this section (but not

using the alternative calculation method

under § 2610.23(c) of this chapter) all of

the following assumptions:

(i) an interest rate equal to 100% of

the annual yield for 30-year Treasury

constant maturities (as reported in

Federal Reserve Statistical Release G.13

and H.15) for the last full calendar

month in the plan year;

(ii) the fair market value of the plan’s

assets; and

(iii) the mortality tables described in

section 302(d)(7)(C)(ii)(I) of the Act or

section 412(l)(7)(C)(ii)(I) of the Code;

provided that for any plan year ending

on or after the effective date of an

amendment to the mortality tables used

to value benefits to be paid as annuities

in trusteed plans under part 2619 of this

chapter, those amended mortality tables.

(c) Outstanding waiver. Before the end

of the statutory amortization period, a

minimum funding waiver for a plan is

considered outstanding unless—

(1) a credit balance exists in the

funding standard account (described in

section 302(b) of the Act and section

412(b) of the Code) that is no less than

the outstanding balance of all waivers

for the plan;

(2) a waiver condition or contractual

obligation requires that a credit balance

as described in paragraph (c)(1)

continue to be maintained as of the end

of each plan year during the remainder

of the statutory amortization period for

the waiver; and

(3) no portion of any credit balance

described in paragraph (c)(1) is used to

make any required installment under

section 302(e) of the Act or section

412(m) of the Code for any plan year

during the remainder of the statutory

amortization period.

(d) Exempt entities. A person is an

exempt entity if the person—

(1) is not a contributing sponsor of a

plan (other than an exempt plan);

(2) has revenue for its fiscal year

ending within the controlled group’s

information year that is five percent or

less of the controlled group’s revenue

for the fiscal year(s) ending within the

information year;

(3) has annual operating income for

the fiscal year ending within the

controlled group’s information year that

is no more than the greater of—

(i) five percent of the controlled

group’s annual operating income for the
Federal Register / Vol. 60, No. 244 / Wednesday, December 20, 1995 / Rules and Regulations 66057

fiscal year(s) ending within the

information year, or

(ii) $5 million; and

(4) has net assets at the end of the

fiscal year ending within the controlled

group’s information year that is no more

than the greater of—

(i) five percent of the controlled

group’s net assets at the end of the fiscal

year(s) ending within the information

year, or

(ii) $5 million.

§ 2628.5 Information year.

(a) Determinations based on

information year. An information year is

used under this part to determine which

persons are filers (§ 2628.4), what

information a filer must submit

(§§ 2628.6–2628.9), whether a plan is an

exempt plan (§ 2628.8(c)), and the due

date for submitting the information

(§ 2628.10(a)).

(b) General. Except as provided in

paragraph (c) of this section, a person’s

information year shall be the fiscal year

of the person. A filer is not required to

change its fiscal year or the plan year of

a plan, to report financial information

for any accounting period other than an

existing fiscal year, or to report actuarial

information for any plan year other than

an existing plan year.

(c) Controlled group members with

different fiscal years.

(1) Use of calendar year. If members

of a controlled group (disregarding any

exempt entity) report financial

information on the basis of different

fiscal years, the information year shall

be the calendar year.

(2) Example. Filers A and B are

members of the same controlled group.

Filer A has a July 1 fiscal year, and filer

B has an October 1 fiscal year. The

information year is the calendar year.

Filer A’s financial information with

respect to its fiscal year ending June 30,

1996, and filer B’s financial information

with respect to its fiscal year ending

September 30, 1996, must be submitted

to the PBGC following the end of the

1996 calendar year (the calendar year in

which those fiscal years end). If filer B

were an exempt entity, the information

year would be filer A’s July 1 fiscal year.

§ 2628.6 Information to be filed.

(a) General. A filer must submit the

information specified in § 2628.7

(identifying information), § 2628.8 (plan

actuarial information) and § 2628.9

(financial information) of this part with

respect to each member of the filer’s

controlled group and each plan

maintained by any member of the

controlled group.

(b) Additional information. By written

notification, the PBGC may require any

filer to submit additional actuarial or

financial information that is necessary

to determine plan assets and liabilities

for any period through the end of the

filer’s information year, or the financial

status of a filer for any period through

the end of the filer’s information year.

The information must be submitted

within ten days after the date of the

written notification or by a different

time specified therein.

(c) Previous submissions. If any

required information has been

previously submitted to the PBGC, a

filer may incorporate this information

into the required submission by

referring to the previous submission.

§ 2628.7 Identifying information.

(a) Filers. Each filer is required to

provide the following identifying

information with respect to each

member of the controlled group

(excluding exempt entities)—

(1) the name, address, and telephone

number of each member of the

controlled group and the legal

relationships of each (for example,

parent, subsidiary); and

(2) the nine-digit Employer

Identification Number (EIN) assigned by

the Internal Revenue Service to each

member (or if there is no EIN for a

member, an explanation).

(b) Plans. Each filer is required to

provide the following identifying

information with respect to each plan

(including exempt plans) maintained by

any member of the controlled group

(including exempt entities)—

(1) the name of each plan;

(2) the EIN and the three-digit Plan

Number (PN) assigned by the

contributing sponsor to each plan (or if

there is no EIN or PN for a plan, an

explanation); and

(3) if the EIN or PN of a plan has

changed since the beginning of the

filer’s information year, the previous

EIN or PN and an explanation.

§ 2628.8 Plan actuarial information.

(a) Required information. For each

plan (other than an exempt plan)

maintained by any member of the filer’s

controlled group, each filer is required

to provide the following actuarial

information—

(1) the fair market value of the plan’s

assets;

(2) the value of the plan’s benefit

liabilities (determined in accordance

with paragraph (d) of this section) at the

end of the plan year ending within the

filer’s information year;

(3) a copy of the actuarial valuation

report for the plan year ending within

the filer’s information year that contains

or is supplemented by the following

information—

(i) each amortization base and related

amortization charge or credit to the

funding standard account (as defined in

section 302(b) of the Act or section

412(b) of the Code) for that plan year

(excluding the amount considered

contributed to the plan as described in

section 302(b)(3)(A) of the Act or section

412(b)(3)(A) of the Code),

(ii) the itemized development of the

additional funding charge payable for

that plan year pursuant to section 412(l)

of the Code,

(iii) the minimum funding

contribution and the maximum

deductible contribution for that plan

year,

(iv) the actuarial assumptions and

methods used for that plan year for

purposes of section 302(b) and (d) of the

Act or section 412(b) and (l) of the Code

(and any change in those assumptions

and methods since the previous

valuation and justifications for any

change), and

(v) a summary of the principal

eligibility and benefit provisions on

which the valuation of the plan was

based (and any changes to those

provisions since the previous

valuation), along with descriptions of

any benefits not included in the

valuation, any significant events that

occurred during that plan year, and the

plan’s early retirement factors; and

(4) a written certification by an

enrolled actuary that, to the best of his

or her knowledge and belief, the

actuarial information submitted is true,

correct, and complete and conforms to

all applicable laws and regulations,

provided that this certification may be

qualified in writing, but only to the

extent the qualification(s) are permitted

under 26 CFR § 301.6059–1(d).

(b) Alternative compliance for plan

actuarial information. If any of the

information specified in paragraph (a)(3)

of this section is not available by the

date specified in § 2628.10(a), a filer

may satisfy the requirement to provide

such information by—

(1) including a statement, with the

material that is submitted to the PBGC,

that the filer will file the unavailable

information by the alternative due date

specified in § 2628.10(b) of this part,

and

(2) filing such information (along with

a certification by an enrolled actuary

under paragraph (a)(4) of this section)

with the PBGC by that alternative due

date.

(c) Exempt plan. The actuarial

information specified in this section is

not required with respect to a plan that,

as of the end of the plan year ending

within the filer’s information year, has

fewer than 500 participants or has
66058 Federal Register / Vol. 60, No. 244 / Wednesday, December 20, 1995 / Rules and Regulations

benefit liabilities (determined in

accordance with paragraph (d) of this

section) equal to or less than the fair

market value of the plan’s assets,

provided that the plan—

(1) has received, on or within ten days

after their due dates, all required

installments or other payments required

to be made during the information year

under section 302 of the Act or section

412 of the Code; and

(2) has no minimum funding waivers

outstanding (as described in § 2628.4(c)

of this part) as of the end of the plan

year ending within the information year.

(d) Determination of benefit liabilities.

The value of a plan’s benefit liabilities

(within the meaning of section

4001(a)(16) of the Act) at the end of a

plan year shall be determined using the

plan census data described in paragraph

(d)(1) of this section and the actuarial

assumptions and methods described in

paragraph (d)(2) or, where applicable,

(d)(3) of this section.

(1) Census data.

(i) Census data period. Plan census

data shall be determined (for all plans

for any information year) either as of the

end of the plan year or as of the

beginning of the next plan year.

(ii) Projected census data. If actual

plan census data is not available, a plan

may use a projection of plan census data

from a date within the plan year. The

projection must be consistent with

projections used to measure pension

obligations of the plan for financial

statement purposes and must give a

result appropriate for the end of the

plan year for these obligations. For

example, adjustments to the projection

process will be required where there has

been a significant event (such as a plan

amendment or a plant shutdown) that

has not been reflected in the projection

data.

(2) Actuarial assumptions and

methods. The value of benefit liabilities

shall be determined using the

assumptions and methods applicable to

the valuation of benefits to be paid as

annuities in trusteed plans terminating

at the end of the plan year (as prescribed

in part 2619, subpart C, of this chapter).

(3) Special actuarial assumptions for

exempt plan determination. Solely for

purposes of determining whether a plan

is an exempt plan, the value of benefit

liabilities may be determined by

substituting for the retirement age

assumptions in paragraph (d)(2) the

retirement age assumptions used by the

plan for that plan year for purposes of

section 302(d) of the Act or section

412(l) of the Code.

§ 2628.9 Financial information.

(a) General. Except as provided in this

section, each filer is required to provide

the following financial information for

each controlled group member (other

than an exempt entity)—

(1) audited financial statements for

the fiscal year ending within the

information year (including balance

sheets, income statements, cash flow

statements, and notes to the financial

statements);

(2) if audited financial statements are

not available by the date specified in

§ 2628.10(a), unaudited financial

statements for the fiscal year ending

within the information year; or

(3) if neither audited nor unaudited

financial statements are available by the

date specified in § 2628.10(a), copies of

federal tax returns for the tax year

ending within the information year.

(b) Consolidated financial statements.

If the financial information of a

controlled group member is combined

with the information of other group

members in consolidated financial

statements, a filer may provide the

following financial information in lieu

of the information required in paragraph

(a) of this section—

(1) the audited consolidated financial

statements for the filer’s information

year or, if the audited consolidated

financial statements are not available by

the date specified in § 2628.10(a),

unaudited consolidated financial

statements for the fiscal year ending

within the information year; and

(2) for each controlled group member

included in the consolidated financial

statements that is a contributing sponsor

of a plan (other than an exempt plan),

the contributing sponsor’s revenues and

operating income for the information

year, and net assets at the end of the

information year.

(c) Subsequent submissions. If

unaudited financial statements are

submitted as provided in paragraph

(a)(2) or (b)(1) of this section, audited

financial statements must thereafter be

filed within 15 days after they are

prepared. If federal tax returns are

submitted as provided in paragraph

(a)(3) of this section, audited and

unaudited financial statements must

thereafter be filed within 15 days after

they are prepared.

(d) Submission of public information.

If any of the financial information

required by paragraphs (a) through (c) of

this section is publicly available, the

filer, in lieu of submitting such

information to the PBGC, may include a

statement with the other information

that is submitted to the PBGC indicating

when such financial information was

made available to the public and where

the PBGC may obtain it. For example, if

the controlled group member has filed

audited financial statements with the

Securities and Exchange Commission, it

need not file the financial statements

with PBGC but instead can identify the

SEC filing as part of its submission

under this part.

(e) Inclusion of information about

non-filers and exempt entities.

Consolidated financial statements

provided pursuant to paragraph (b)(1) of

this section may include financial

information of persons who are not

controlled group members (e.g., joint

ventures) or are exempt entities.

§ 2628.10 Due date and filing with the

PBGC.

(a) Due date. Except as permitted

under paragraph (b) of this section, a

filer shall file the information required

under this part with the PBGC on or

before the 105th day after the close of

the filer’s information year.

(b) Alternative due date. A filer that

includes the statement specified in

§ 2628.8(b)(1) with its submission to the

PBGC by the date specified in paragraph

(a) of this section must submit the

actuarial information specified in

§ 2628.8(b)(2) within 15 days after the

deadline for filing the plan’s annual

report (Form 5500 series) for the plan

year ending within the filer’s

information year (see § 2520.104a–

5(a)(2) of this title).

(c) How to file. Requests and

information may be delivered by mail,

by delivery service, by hand, or by any

other method acceptable to the PBGC,

to: Corporate Finance and Negotiations

Department, Pension Benefit Guaranty

Corporation, 1200 K Street, NW.,

Washington, DC 20005–4026.

(d) Date when information filed.

Information filed under this part is

considered filed—

(1) on the date of the United States

postmark stamped on the cover in

which the information is mailed, if—

(i) the postmark was made by the

United States Postal Service; and

(ii) the document was mailed postage

prepaid, properly addressed to the

PBGC; or

(2) if the conditions stated in

paragraph (d)(1) of this section are not

met, on the date it is received by the

PBGC. Information received on a

weekend or Federal holiday or after 5:00

p.m. on a weekday is considered filed

on the next regular business day.

(e) Computation of time. In computing

any period of time under this part, the

day of the act or event from which the

designated period of time begins to run

shall not be included. The last day of

the period so computed shall be
Federal Register / Vol. 60, No. 244 / Wednesday, December 20, 1995 / Rules and Regulations 66059

included, unless it is a weekend or

Federal holiday, in which event the

period runs until the end of the next day

that is not a weekend or Federal

holiday.

§ 2628.11 Waivers and Extensions.

The PBGC may waive the requirement

to submit information with respect to

one or more filers or plans or may

extend the applicable due date or dates

specified in § 2628.10 of this part. The

PBGC will exercise this discretion in

appropriate cases where it finds

convincing evidence supporting a

waiver or extension; any waiver or

extension may be subject to conditions.

A request for a waiver or extension must

be filed in writing with the PBGC at the

address provided in § 2628.10(c) no

later than 15 days before the applicable

date specified in § 2628.10 of this part,

and must state the facts and

circumstances on which the request is

based.

§ 2628.12 Confidentiality of information

submitted.

In accordance with § 2603.15(b) of

this chapter and section 4010(c) of the

Act, any information or documentary

material that is not publicly available

and is submitted to the PBGC pursuant

to this part shall not be made public,

except as may be relevant to any

administrative or judicial action or

proceeding or for disclosures to either

body of Congress or to any duly

authorized committee or subcommittee

of the Congress.

§ 2628.13 Penalties.

If all of the information required

under this part is not provided within

the specified time limit, the PBGC may

assess a separate penalty under section

4071 of the Act against the filer and

each member of the filer’s controlled

group (other than an exempt entity) of

up to $1,000 a day for each day that the

failure continues. The PBGC may also

pursue other equitable or legal remedies

available to it under the law.

§ 2628.14 OMB control number.

The collection of information

requirements contained in this part have

been approved by the Office of

Management and Budget under OMB

Control Number 1212–0049.

Issued on the date set forth above pursuant

to a resolution of the Board of Directors

authorizing its Chairman to issue this final

rule.

Issued in Washington, DC, this 18th day of

December 1995.

Robert B. Reich,

Chairman, Board of Directors, Pension Benefit

Guaranty Corporation.

James J. Keightley,

Secretary, Board of Directors, Pension Benefit

Guaranty Corporation.

[FR Doc. 95–31053 Filed 12–19–95; 8:45 am]

BILLING CODE 7708–01–P