[Federal Register Volume 60, Number 244 (Wednesday, December 20, 1995)]
[Rules and Regulations]
[Pages 66054-66059]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31053]



      
      

[[Page 66053]]

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Part VIII





Pension Benefit Guaranty Corporation





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29 CFR Part 2628



Annual Financial and Actuarial Information Reporting; Final Rule

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

[[Page 66054]]


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 
post-1999 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).

[[Page 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 Sec. 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 
    
[[Page 66056]]



Sec. 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.


Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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.


Sec. 2628.3   Filing requirement.

    (a) In general. Except as provided in Sec. 2628.8(c) (relating to 
exempt plans) and except where waivers have been granted under 
Sec. 2628.11 of this part, each filer shall submit to the PBGC 
annually, on or before the due date specified in Sec. 2628.10, all 
information specified in Sec. 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 Sec. 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.


Sec. 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 Sec. 2610.23 of this chapter (without reference to the 
exemptions and special rules under Sec. 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 Sec. 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 

[[Page 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.


Sec. 2628.5   Information year.

    (a) Determinations based on information year. An information year 
is used under this part to determine which persons are filers 
(Sec. 2628.4), what information a filer must submit (Secs. 2628.6-
2628.9), whether a plan is an exempt plan (Sec. 2628.8(c)), and the due 
date for submitting the information (Sec. 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.


Sec. 2628.6   Information to be filed.

    (a) General. A filer must submit the information specified in 
Sec. 2628.7 (identifying information), Sec. 2628.8 (plan actuarial 
information) and Sec. 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.


Sec. 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.


Sec. 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 Sec. 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 Sec. 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 Sec. 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 

[[Page 66058]]
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 
Sec. 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.


Sec. 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 Sec. 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 Sec. 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 Sec. 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.


Sec. 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 Sec. 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 Sec. 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 Sec. 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 

[[Page 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.


Sec. 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 Sec. 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 
Sec. 2628.10(c) no later than 15 days before the applicable date 
specified in Sec. 2628.10 of this part, and must state the facts and 
circumstances on which the request is based.


Sec. 2628.12  Confidentiality of information submitted.

    In accordance with Sec. 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.


Sec. 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.


Sec. 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