[Federal Register Volume 63, Number 85 (Monday, May 4, 1998)]
[Rules and Regulations]
[Pages 24421-24425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11784]
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PENSION BENEFIT GUARANTY CORPORATION
29 CFR Part 4231
RIN 1212-AA69
Mergers and Transfers Between Multiemployer Plans
AGENCY: Pension Benefit Guaranty Corporation.
ACTION: Final rule.
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SUMMARY: The Pension Benefit Guaranty Corporation is amending its
regulation on Mergers and Transfers Between Multiemployer Plans to
clarify how the rules are to be applied to plans terminated by mass
withdrawal and to make other minor changes and clarifications in the
regulation.
EFFECTIVE DATE: June 3, 1998.
FOR FURTHER INFORMATION CONTACT: Deborah C. Murphy, Attorney, Office of
the General Counsel, suite 340, Pension Benefit Guaranty Corporation,
1200 K Street, NW., Washington, DC 20005-4026; 202-326-4024 (202-326-
4179 for TTY and TDD).
SUPPLEMENTARY INFORMATION:
Background
Under section 4231 (a) and (b) of ERISA, a merger, or a transfer of
assets and liabilities, between multiemployer plans must satisfy four
requirements unless otherwise provided in regulations prescribed by the
PBGC:
(1) The PBGC must receive 120 days' advance notice of the
transaction;
(2) Accrued benefits must not be reduced;
(3) There must be no reasonable likelihood that benefits will be
suspended as a result of plan insolvency; and
(4) An actuarial valuation of each affected plan must have been
performed as prescribed in section 4231(b)(4).
The PBGC's regulation on Mergers and Transfers Between
Multiemployer Plans (29 CFR part 4231) prescribes procedures for
requesting a determination that a merger or transfer satisfies
applicable requirements, allows the PBGC to waive the 120-day notice
requirement, and sets higher-level and lower-level requirements for
``safe harbor'' plan solvency tests and for valuation standards.
Whether the higher-level or lower-level requirements apply depends on
whether a ``significant transfer'' is involved.
On May 1, 1997, the PBGC published for public comment (at 62 FR
23700) a proposed rule to amend part 4231. One commenter submitted
comments. The final rule reflects changes made in response to the
comments.
Terminated Plan Transactions
The proposed amendment provided that transactions involving plans
terminated by mass withdrawal under ERISA section 4041A(a)(2) would
(except for ``de minimis'' transactions) be governed by the higher-
level valuation standard and ``safe harbor'' solvency test. The
proposed amendment also extended to ``de minimis'' terminated plan
transactions the requirement that actuarial valuation reports be
submitted to the PBGC.
The commenter expressed concern that the proposed amendment would
``have the adverse effect of making it more expensive for a large,
well-funded plan to rescue a small terminated plan by absorbing it into
a large, stable asset pool.'' The final regulation adopts the
commenter's suggestion that a plan not be subjected to the higher-level
valuation provisions simply because it was involved in a terminated
plan transaction if it were not otherwise ``significantly affected''
(see Secs. 4231.5 and 4231.9(b)(1)(iii)).
Other Changes
The commenter pointed out that for consistency with other
provisions, redesignated Sec. 4231.6(a)(2) should refer to ``the first
five years beginning on or after the proposed effective date'' (rather
than just ``after'' that date). The PBGC agrees and has made the
suggested change.
Paperwork Reduction Act
The collection of information requirements in Part 4231 as amended
have been approved by the Office of Management and Budget under control
number 1212-0022 (expires June 30, 2000). 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.
Compliance With Rulemaking Guidelines
The PBGC has determined that this action is not a ``significant
regulatory action'' under the criteria set forth in Executive Order
12866.
The PBGC certifies that the amendment in this rule will not have a
significant economic impact on a substantial number of small entities.
This certification is based on the fact that the primary substantive
effect of the amendment is to liberalize certain existing requirements
and to clarify the application of existing requirements to a very rare
category of transactions, viz., multiemployer mergers and transfers
involving plans that have terminated by mass withdrawal. (The PBGC is
aware of only two such transactions since section 4231 of ERISA was
enacted.) Accordingly, as provided in section 605(b) of the Regulatory
Flexibility Act, compliance with sections 603 and 604 of the Regulatory
Flexibility Act is not required.
List of Subjects in 29 CFR Part 4231
Pensions, Reporting and recordkeeping requirements.
For the reasons given above, 29 CFR part 4231 is revised to read as
follows.
PART 4231--MERGERS AND TRANSFERS BETWEEN MULTIEMPLOYER PLANS
Sec.
4231.1 Purpose and scope.
4231.2 Definitions.
4231.3 Requirements for mergers and transfers.
4231.4 Preservation of accrued benefits.
4231.5 Valuation requirement.
4231.6 Plan solvency tests.
4231.7 De minimis mergers and transfers.
4231.8 Notice of merger or transfer.
4231.9 Request for compliance determination.
4231.10 Actuarial calculations and assumptions.
Authority: 29 U.S.C. 1302(b)(3), 1411.
Sec. 4231.1 Purpose and scope.
(a) Purpose. The purpose of this part is to prescribe notice
requirements under section 4231 of ERISA for mergers and transfers of
assets or liabilities among multiemployer pension plans. This part also
interprets the other requirements of section 4231 and prescribes
special rules for de minimis mergers and transfers. The collections of
information in this part have been approved by the Office of Management
and Budget under OMB control number 1212-0022.
(b) Scope. This part applies to mergers and transfers among
multiemployer plans where all of the plans immediately before and
immediately after the transaction are multiemployer plans covered by
title IV of ERISA.
Sec. 4231.2 Definitions.
The following terms are defined in Sec. 4001.2 of this chapter:
Code, EIN, ERISA, fair market value, IRS, multiemployer plan, PBGC,
plan, plan year, and PN.
[[Page 24422]]
In addition, for purposes of this part:
Actuarial valuation means a valuation of assets and liabilities
performed by an enrolled actuary using the actuarial assumptions used
for purposes of determining the charges and credits to the funding
standard account under section 302 of ERISA and section 412 of the
Code.
Certified change of collective bargaining representative means a
change of collective bargaining representative certified under the
Labor-Management Relations Act of 1947, as amended, or the Railway
Labor Act, as amended.
Fair market value of assets has the same meaning as the term has
for minimum funding purposes under section 302 of ERISA and section 412
of the Code.
Merger means the combining of two or more plans into a single plan.
For example, a consolidation of two plans into a new plan is a merger.
Significantly affected plan means a plan that--
(1) Transfers assets that equal or exceed 15 percent of its assets
before the transfer,
(2) Receives a transfer of unfunded accrued benefits that equal or
exceed 15 percent of its assets before the transfer,
(3) Is created by a spinoff from another plan, or
(4) Engages in a merger or transfer (other than a de minimis merger
or transfer) either--
(i) After such plan has terminated by mass withdrawal under section
4041A(a)(2) of ERISA, or
(ii) With another plan that has so terminated.
Transfer and transfer of assets or liabilities mean a diminution of
assets or liabilities with respect to one plan and the acquisition of
these assets or the assumption of these liabilities by another plan or
plans (including a plan that did not exist prior to the transfer).
However, the shifting of assets or liabilities pursuant to a written
reciprocity agreement between two multiemployer plans in which one plan
assumes liabilities of another plan is not a transfer of assets or
liabilities. In addition, the shifting of assets between several
funding media used for a single plan (such as between trusts, between
annuity contracts, or between trusts and annuity contracts) is not a
transfer of assets or liabilities.
Unfunded accrued benefits means the excess of the present value of
a plan's accrued benefits over the fair market value of its assets,
determined on the basis of the actuarial valuation required under
Sec. 4231.5(b).
Sec. 4231.3 Requirements for mergers and transfers.
(a) General requirements. A plan sponsor may not cause a
multiemployer plan to merge with one or more multiemployer plans or
transfer assets or liabilities to or from another multiemployer plan
unless the merger or transfer satisfies all of the following
requirements:
(1) No participant's or beneficiary's accrued benefit is lower
immediately after the effective date of the merger or transfer than the
benefit immediately before that date.
(2) Actuarial valuations of the plans that existed before the
merger or transfer have been performed in accordance with Sec. 4231.5.
(3) For each plan that exists after the transaction, an enrolled
actuary--
(i) Determines that the plan meets the applicable plan solvency
requirement set forth in Sec. 4231.6; or
(ii) Otherwise demonstrates that benefits under the plan are not
reasonably expected to be subject to suspension under section 4245 of
ERISA.
(4) The plan sponsor notifies the PBGC of the merger or transfer in
accordance with Sec. 4231.8.
(b) Compliance determination. If a plan sponsor requests a
determination that a merger or transfer that may otherwise be
prohibited by section 406(a) or (b)(2) of ERISA satisfies the
requirements of section 4231 of ERISA, the plan sponsor must submit the
information described in Sec. 4231.9 in addition to the information
required by Sec. 4231.8. PBGC may request additional information if
necessary to determine whether a merger or transfer complies with the
requirements of section 4231 and this part. Plan sponsors are not
required to request a compliance determination. Under section 4231(c)
of ERISA, if the PBGC determines that the merger or transfer complies
with section 4231 of ERISA and this part, the merger or transfer will
not constitute a violation of the prohibited transaction provisions of
section 406(a) and (b)(2) of ERISA.
(c) Certified change in bargaining representative. Transfers of
assets and liabilities pursuant to a certified change in bargaining
representative are governed by section 4235 of ERISA. Plan sponsors
involved in such transfers are not required to comply with this part.
However, under section 4235(f)(1) of ERISA, the plan sponsors of the
plans involved in the transfer may agree to a transfer that complies
with sections 4231 and 4234 of ERISA. Plan sponsors that elect to
comply with sections 4231 and 4234 must comply with the rules in this
part.
Sec. 4231.4 Preservation of accrued benefits.
Section 4231(b)(2) of ERISA and Sec. 4231.3(a)(1) require that no
participant's or beneficiary's accrued benefit may be lower immediately
after the effective date of the merger or transfer than the benefit
immediately before the merger or transfer. A plan that assumes an
obligation to pay benefits for a group of participants satisfies this
requirement only if the plan contains a provision preserving all
accrued benefits. The determination of what is an accrued benefit must
be made in accordance with section 411 of the Code and the regulations
thereunder.
Sec. 4231.5 Valuation requirement.
(a) In general. For a plan that is not a significantly affected
plan, or that is a significantly affected plan only because the merger
or transfer involves a plan that has terminated by mass withdrawal
under section 4041A(a)(2) of ERISA, the actuarial valuation requirement
under section 4231(b)(4) of ERISA and Sec. 4231.3(a)(2) is satisfied if
an actuarial valuation has been performed for the plan based on the
plan's assets and liabilities as of a date not more than three years
before the date on which the notice of the merger or transfer is filed.
(b) Significantly affected plans. For a significantly affected
plan, other than a plan that is a significantly affected plan only
because the merger or transfer involves a plan that has terminated by
mass withdrawal under section 4041A(a)(2) of ERISA, the actuarial
valuation requirement under section 4231(b)(4) of ERISA and
Sec. 4231.3(a)(2) is satisfied only if an actuarial valuation has been
performed for the plan based on the plan's assets and liabilities as of
a date not earlier than the first day of the last plan year ending
before the proposed effective date of the transaction. The valuation
must separately identify assets, contributions, and liabilities being
transferred and must be based on the actuarial assumptions and methods
that are expected to be used for the plan for the first plan year
beginning after the transfer.
Sec. 4231.6 Plan solvency tests.
(a) In general. For a plan that is not a significantly affected
plan, the plan solvency requirement of section 4231(b)(3) of ERISA and
Sec. 4231.3(a)(3)(i) is satisfied if--
(1) The expected fair market value of plan assets immediately after
the merger or transfer equals or exceeds five times the benefit
payments for the last plan year ending before the proposed
[[Page 24423]]
effective date of the merger or transfer; or
(2) In each of the first five plan years beginning on or after the
proposed effective date of the merger or transfer, expected plan assets
plus expected contributions and investment earnings equal or exceed
expected expenses and benefit payments for the plan year.
(b) Significantly affected plans. The plan solvency requirement of
section 4231(b)(3) of ERISA and Sec. 4231.3(a)(3)(i) is satisfied for a
significantly affected plan if all of the following requirements are
met:
(1) Expected contributions equal or exceed the estimated amount
necessary to satisfy the minimum funding requirement of section 412(a)
of the Code (including reorganization funding, if applicable) for the
five plan years beginning on or after the proposed effective date of
the transaction.
(2) The expected fair market value of plan assets immediately after
the transaction equal or exceed the total amount of expected benefit
payments for the first five plan years beginning on or after the
proposed effective date of the transaction.
(3) Expected contributions for the first plan year beginning on or
after the proposed effective date of the transaction equal or exceed
expected benefit payments for that plan year.
(4) Expected contributions for the amortization period equal or
exceed unfunded accrued benefits plus expected normal costs. The
actuary may select as the amortization period either--
(i) The first 25 plan years beginning on or after the proposed
effective date of the transaction, or
(ii) The amortization period for the resulting base when the
combined charge base and the combined credit base are offset under
section 412(b)(4) of the Code.
(c) Rules for determinations. In determining whether a transaction
satisfies the plan solvency requirements set forth in this section, the
following rules apply:
(1) Expected contributions after a merger or transfer must be
determined by assuming that contributions for each plan year will equal
contributions for the last full plan year ending before the date on
which the notice of merger or transfer is filed with the PBGC.
Contributions must be adjusted, however, to reflect--
(i) The merger or transfer,
(ii) Any change in the rate of employer contributions that has been
negotiated (whether or not in effect), and
(iii) Any trend of changing contribution base units over the
preceding five plan years or other period of time that can be
demonstrated to be more appropriate.
(2) Expected normal costs must be determined under the funding
method and assumptions expected to be used by the plan actuary for
purposes of determining the minimum funding requirement under section
412 of the Code (which requires that such assumptions be reasonable in
the aggregate). If the plan uses an aggregate funding method, normal
costs must be determined under the entry age normal method.
(3) Expected benefit payments must be determined by assuming that
current benefits remain in effect and that all scheduled increases in
benefits occur.
(4) The expected fair market value of plan assets immediately after
the merger or transfer must be based on the most recent data available
immediately before the date on which the notice is filed.
(5) Expected investment earnings must be determined using the same
interest assumption to be used for determining the minimum funding
requirement under section 412 of the Code.
(6) Expected expenses must be determined using expenses in the last
plan year ending before the notice is filed, adjusted to reflect any
anticipated changes.
(7) Expected plan assets for a plan year must be determined by
adjusting the most current data on fair market value of plan assets to
reflect expected contributions, investment earnings, benefit payments
and expenses for each plan year between the date of the most current
data and the beginning of the plan year for which expected assets are
being determined.
Sec. 4231.7 De minimis mergers and transfers.
(a) Special plan solvency rule. The determination of whether a de
minimis merger or transfer satisfies the plan solvency requirement in
Sec. 4231.6(a) may be made without regard to any other de minimis
mergers or transfers that have occurred since the last actuarial
valuation.
(b) De minimis merger defined. A merger is de minimis if the
present value of accrued benefits (whether or not vested) of one plan
is less than 3 percent of the fair market value of the other plan's
assets.
(c) De minimis transfer defined. A transfer of assets or
liabilities is de minimis if --
(1) The fair market value of the assets transferred, if any, is
less than 3 percent of the fair market value of all the assets of the
transferor plan;
(2) The present value of the accrued benefits transferred (whether
or not vested) is less than 3 percent of the fair market value of all
the assets of the transferee plan; and
(3) The transferee plan is not a plan that has terminated under
section 4041A(a)(2) of ERISA.
(d) Value of assets and benefits. For purposes of paragraphs (b)
and (c) of this section, the value of plan assets and accrued benefits
may be determined as of any date prior to the proposed effective date
of the transaction, but not earlier than the date of the most recent
actuarial valuation.
(e) Aggregation required. In determining whether a merger or
transfer is de minimis, the assets and accrued benefits transferred in
previous de minimis mergers and transfers within the same plan year
must be aggregated as described in paragraphs (e)(1) and (e)(2) of this
section. For the purposes of those paragraphs, the value of plan assets
may be determined as of the date during the plan year on which the
total value of the plan's assets is the highest.
(1) A merger is not de minimis if the total present value of
accrued benefits merged into a plan, when aggregated with all prior de
minimis mergers of and transfers to that plan effective within the same
plan year, equals or exceeds 3 percent of the value of the plan's
assets.
(2) A transfer is not de minimis if, when aggregated with all
previous de minimis mergers and transfers effective within the same
plan year--
(i) The value of all assets transferred from a plan equals or
exceeds 3 percent of the value of the plan's assets; or
(ii) The present value of all accrued benefits transferred to a
plan equals or exceeds 3 percent of the plan's assets.
Sec. 4231.8 Notice of merger or transfer.
(a) When to file. Except as provided in paragraph (f) of this
section, a notice of a proposed merger or transfer must be filed not
less than 120 days before the effective date of the transaction. For
purposes of this part, the effective date of a merger or transfer is
the earlier of--
(1) The date on which one plan assumes liability for benefits
accrued under another plan involved in the transaction; or
(2) The date on which one plan transfers assets to another plan
involved in the transaction.
(b) Who must file. The plan sponsors of all plans involved in a
merger or transfer, or the duly authorized representative(s) acting on
behalf of the plan sponsors, must jointly file the notice required by
this section.
[[Page 24424]]
(c) Where to file. The notice must be delivered to Reports
Processing, Insurance Operations Department, Pension Benefit Guaranty
Corporation, 1200 K Street NW., Washington, DC 20005-4026.
(d) Filing date. For purposes of paragraph (a) of this section, the
notice is not considered filed until all of the information required by
paragraph (e) of this section has been submitted. 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 information was mailed postage prepaid, properly addressed
to the PBGC; or
(2) On the date it is received by the PBGC, if the conditions
stated in paragraph (d)(1) of this section are not met. 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) Information required. Each notice must contain the following
information:
(1) For each plan involved in the merger or transfer--
(i) The name of the plan;
(ii) The name, address and telephone number of the plan sponsor and
of the plan sponsor's duly authorized representative, if any; and
(iii) The plan sponsor's EIN and the plan's PN and, if different,
the EIN or PN last filed with the PBGC. If no EIN or PN has been
assigned, the notice must so indicate.
(2) Whether the transaction being reported is a merger or transfer,
whether it involves any plan that has terminated under section
4041A(a)(2) of ERISA, whether any significantly affected plan is
involved in the transaction (and, if so, identifying each such plan),
and whether it is a de minimis transaction as defined in Sec. 4231.7
(and, if so, including an enrolled actuary's certification to that
effect).
(3) The proposed effective date of the transaction.
(4) A copy of each plan provision stating that no participant's or
beneficiary's accrued benefit will be lower immediately after the
effective date of the merger or transfer than the benefit immediately
before that date.
(5) For each plan that exists after the transaction, one of the
following statements, certified by an enrolled actuary:
(i) A statement that the plan satisfies the applicable plan
solvency test set forth in Sec. 4231.6, indicating which is the
applicable test.
(ii) A statement of the basis on which the actuary has determined
that benefits under the plan are not reasonably expected to be subject
to suspension under section 4245 of ERISA, including the supporting
data or calculations, assumptions and methods.
(6) For each plan that exists before a transaction (unless the
transaction is de minimis and does not involve any plan that has
terminated under section 4041A(a)(2) of ERISA), a copy of the most
recent actuarial valuation report that satisfies the requirements of
Sec. 4231.5.
(7) For each significantly affected plan that exists after the
transaction, the following information used in making the plan solvency
determination under Sec. 4231.6(b):
(i) The present value of the accrued benefits and fair market value
of plan assets under the valuation required by Sec. 4231.5(b),
allocable to the plan after the transaction.
(ii) The fair market value of assets in the plan after the
transaction (determined in accordance with Sec. 4231.6(c)(4)).
(iii) The expected benefit payments for the plan in the first plan
year beginning on or after the proposed effective date of the
transaction (determined in accordance with Sec. 4231.6(c)(3)).
(iv) The contribution rates in effect for the plan for the first
plan year beginning on or after the proposed effective date of the
transaction.
(v) The expected contributions for the plan in the first plan year
beginning on or after the proposed effective date of the transaction
(determined in accordance with Sec. 4231.6(c)(1)).
(f) Waiver of notice. The PBGC may waive the notice requirements of
this section and section 4231(b)(1) of ERISA if--
(1) A plan sponsor demonstrates to the satisfaction of the PBGC
that failure to complete the merger or transfer in less than 120 days
after filing the notice will cause harm to participants or
beneficiaries of the plans involved in the transaction;
(2) The PBGC determines that the transaction complies with the
requirements of section 4231 of ERISA; or
(3) The PBGC completes its review of the transaction.
Sec. 4231.9 Request for compliance determination.
(a) General. The plan sponsor(s) of one or more plans involved in a
merger or transfer, or the duly authorized representative(s) acting on
behalf of the plan sponsor(s), may file a request for a determination
that the transaction complies with the requirements of section 4231 of
ERISA. The request must contain the information described in paragraph
(b) or (c) of this section, as applicable.
(1) The place of filing. The request must be delivered to the
address set forth in Sec. 4231.8(c).
(2) Single request permitted for all de minimis transactions.
Because the plan solvency test for de minimis mergers and transfers is
based on the most recent valuation (without adjustment for intervening
de minimis transactions), a plan sponsor may submit a single request
for a compliance determination covering all de minimis mergers or
transfers that occur between one plan valuation and the next. However,
the plan sponsor must still notify PBGC of each de minimis merger or
transfer separately, in accordance with Sec. 4231.8. The single request
for a compliance determination may be filed concurrently with any one
of the notices of a de minimis merger or transfer.
(b) Contents of request. (1) General. A request for a compliance
determination concerning a merger or transfer that is not de minimis
must contain--
(i) A copy of the merger or transfer agreement;
(ii) A summary of the required calculations, including a complete
description of assumptions and methods, on which the enrolled actuary
based each certification that a plan involved in the merger or transfer
satisfied a plan solvency test described in Sec. 4231.6; and
(iii) For each significantly affected plan, other than a plan that
is a significantly affected plan only because the merger or transfer
involves a plan that has terminated by mass withdrawal under section
4041A(a)(2) of ERISA, copies of all actuarial valuations performed
within the 5 years preceding the date of filing the notice required
under Sec. 4231.8.
(2) De minimis merger or transfer. A request for a compliance
determination concerning a de minimis merger or transfer must contain
one of the following statements for each plan that exists after the
transaction, certified by an enrolled actuary:
(i) A statement that the plan satisfies one of the plan solvency
tests set forth in Sec. 4231.6(a), indicating which test is satisfied.
(ii) A statement of the basis on which the actuary has determined
that benefits under the plan are not reasonably expected to be subject
to suspension under section 4245 of ERISA, including supporting data or
calculations, assumptions and methods.
[[Page 24425]]
Sec. 4231.10 Actuarial calculations and assumptions.
(a) Most recent valuation. All calculations required by this part
must be based on the most recent actuarial valuation as of the date of
filing the notice, updated to show any material changes.
(b) Assumptions. All calculations required by this part must be
based on methods and assumptions that are reasonable in the aggregate,
based on generally accepted actuarial principles.
(c) Updated calculations. If the actual effective date of the
merger or transfer is more than one year after the date the notice is
filed with the PBGC, PBGC may require the plans involved to provide
updated calculations and representations based on the actual effective
date of the transaction.
Issued in Washington, D.C., this 28th day of April 1998.
Alexis M. Herman,
Chairman, Board of Directors, Pension Benefit Guaranty Corporation.
Issued on the date set forth above pursuant to a resolution of
the Board of Directors authorizing its Chairman to issue this final
rule.
James J. Keightley,
Secretary, Board of Directors, Pension Benefit Guaranty Corporation.
[FR Doc. 98-11784 Filed 5-1-98; 8:45 am]
BILLING CODE 7708-01-P
