[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]]
_______________________________________________________________________
Part VIII
Pension Benefit Guaranty Corporation
_______________________________________________________________________
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.
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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
