[Federal Register Volume 60, Number 129 (Thursday, July 6, 1995)]
[Proposed Rules]
[Pages 35308-35313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16510]
[[Page 35307]]
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Part VII
Pension Benefit Guaranty Corporation
_______________________________________________________________________
29 CFR Part 2628
Annual Financial and Actuarial Information Reporting; Proposed Rule
Federal Register / Vol. 60, No. 129 / Thursday, July 6, 1995 /
Proposed Rules
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PENSION BENEFIT GUARANTY CORPORATION
29 CFR Part 2628
RIN 1212-AA78
Annual Financial and Actuarial Information Reporting
AGENCY: Pension Benefit Guaranty Corporation.
ACTION: Proposed rule.
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SUMMARY: The Pension Benefit Guaranty Corporation is proposing
regulations to implement a new requirement under section 4010 of the
Employee Retirement Income Security Act of 1974. 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.
DATES: Comments must be received on or before September 5, 1995.
ADDRESSES: Comments may be mailed to the Office of the General Counsel,
Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington,
DC 20005-4026, or hand-delivered to Suite 340 at the above address.
Comments will be available for inspection at the PBGC's Communications
and Public Affairs Department, Suite 240, 1200 K Street, NW.,
Washington, DC 20005-4026.
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:
Background
Section 772(a) of the Retirement Protection Act of 1994 (subtitle F
of title VII of the Uruguay Round Agreements Act, Pub. L. 103-465, 108
Stat. 4809 (1994)) added section 4010 to ERISA. Under section 4010,
certain contributing sponsors and all members of their controlled
groups must submit annually to the PBGC financial and actuarial
information as prescribed by the PBGC in regulations.
Who Must File
Under section 4010 of ERISA, each contributing sponsor of a pension
plan and each member of its controlled group is obligated to submit
information to the PBGC if (1) the aggregate unfunded vested benefits
of all plans maintained by the members of the controlled group exceed
$50 million; (2) the conditions specified in section 302(f) of ERISA
and section 412(n) of the Internal Revenue Code for imposing a lien for
missed contributions exceeding $1 million have been met with respect to
any plan maintained by any member of the controlled group; or (3) the
Internal Revenue Service has granted minimum funding waivers in excess
of $1 million to any plan maintained by any member of the controlled
group, and any portion of the waivers is still outstanding. The
regulation defines each entity obligated to submit information to the
PBGC as a ``Filer'' (Sec. 2628.4).
``Unfunded vested benefits'' for the $50 million test are
determined in the same manner used to determine unfunded vested
benefits for purposes of calculating the PBGC's variable rate premium
(but without reference to the exemptions or special rules provided in
the PBGC's premium regulation (29 CFR 2610.24)).
Information Years
The regulation introduces the concept of an Information Year for a
person (Sec. 2628.6). The Information Year serves four purposes. First,
it will help persons determine which plan years and fiscal years to use
to identify Filers. Second, it will help Filers determine whether a
pension plan qualifies for a filing exemption. Third, it is used to
identify the information to be submitted by a Filer. Fourth, it
establishes the due date for submission of required information by a
Filer.
The regulation does not require a Filer to change its fiscal year
or the plan year of any pension plan. Further, the regulation does not
require a Filer to report financial information on any accounting
period other than an existing fiscal year or to report actuarial
information for any period other than the existing plan year of a
pension plan.
Generally, the Information Year is the fiscal year of the Filer. If
all members of a controlled group do not report financial information
on the same fiscal year, the Information Year is the calendar year.
Required Submissions
Section 4010(a) of ERISA requires each Filer annually to provide to
the PBGC audited financial statements and other financial and actuarial
information required by regulation. Section 2628.3(b) of the regulation
allows information to be submitted by a representative of a Filer so
that, for example, a Filer can submit required information to the PBGC
on behalf of itself and all other members of its controlled group and
satisfy their obligations under the regulation.
Exemptions
A Filer is not required to submit actuarial information for a
pension plan (``Exempt Plan'') if, at the end of the plan year ending
within the Filer's Information Year, the plan has no unfunded benefit
liabilities or has fewer than 500 participants. The amount of
``unfunded benefit liabilities'' is determined as of the end of that
plan year by subtracting the market value of plan assets, without
regard to any contributions receivable, from the value of the plan's
benefit liabilities. The regulation requires that the ``value of
benefit liabilities'' be calculated as of the end of that plan year
using (1) the PBGC's termination assumptions in effect at the end of
that plan year and (2) plan census data as of the end of that plan year
or the beginning of the next plan year. If that census data is not
available, the value of benefit liabilities may be based on a
projection of census data from a date within the plan year. This
projection must be consistent with projections used to measure pension
obligations for financial statement purposes and produce a result
appropriate to the measurement date for these obligations. Adjustments
to this projection process may be required where there have been
significant events (such as plan amendments or curtailments) which were
not reflected in the projection assumptions. Plans that have minimum
funding waivers outstanding at the end of the plan year ending within
the Filer's Information Year or that have any missed minimum funding
payments in any amount that were required to be made during the
Information Year are not Exempt Plans.
Section 2628.4(b) requires that all single-employer plans covered
by Title IV of ERISA in a controlled group, including Exempt Plans, be
taken into account in determining whether a person is a Filer. For
example, a contributing sponsor has two plans--Plan A with unfunded
vested benefits of $45 million and more than 500 participants, and Plan
B with unfunded vested benefits of $6 million and fewer than 500
participants. Because the aggregate unfunded vested benefits of the two
plans will exceed $50 million, the contributing sponsor and each of its
controlled group members are Filers. (Because Plan B has fewer than 500
participants, no actuarial information for the plan need be submitted.)
The PBGC also may waive some or all of the filing requirements for
Filers in appropriate cases where the PBGC finds convincing evidence
for such a waiver (Sec. 2628.5(b)). Waivers may be conditioned on the
submission of
[[Page 35309]]
substitute information or the execution of an agreement protective of
plan participants and the PBGC. A Filer that seeks a waiver must file
its request in writing no less than fifteen days before the applicable
due date for required information.
The PBGC invites members of the public to express their views
concerning other factors or criteria that could warrant additional
exemptions for individual Filers, for classes of Filers, or for plans.
Information To Be Submitted
Section 2628.7 describes the information that Filers must submit to
the PBGC. Although each Filer is subject to the obligation to submit
information on each controlled group member and plan (to the extent no
exemptions apply), the regulation allows for a single consolidated
filing for the controlled group.
Identifying Information
Section 2628.7(b) specifies identifying information for each Filer
(the Filer's name, address, telephone number, and the Employer
Identification Number (EIN), if any, assigned by the IRS) and for each
pension plan (the name of the plan, EIN, and the Plan Number assigned
by the plan's contributing sponsor). Also, each Filer (or one Filer for
the entire controlled group) must identify all members of the
controlled group and the legal relationship of each entity to the
others (parent, wholly-owned subsidiary, etc.).
Actuarial Information
Section 2628.7(c) specifies the actuarial information that a Filer
must provide as follows: (1) The market value of plan assets (without
regard to any contributions receivable) at the end of the plan year
ending within the Filer's Information Year, (2) the value of benefit
liabilities as of the same date, (3) certain participant data, and (4)
the actuarial valuation report (``AVR'') for that plan year, which must
contain or be supplemented by certain required actuarial information.
Generally, this actuarial information is developed and maintained by
the plan's enrolled actuary for purposes of, among other things,
completing Schedule B of the plan's Form 5500. A plan's enrolled
actuary must certify that all actuarial information submitted is
accurate and complete.
If the AVR or any of the supplementary actuarial information is not
available by the due date, Sec. 2628.7(d) allows a Filer to submit the
unavailable information by an alternative date--15 days after the
deadline for filing the plan's Form 5500 for the plan year ending
within the Filer's Information Year (see 29 CFR 2520.104a-5(a)(2)).
Financial Information
Section 4010(a)(2) of ERISA requires each Filer to provide to the
PBGC copies of audited financial statements (or, if not available,
unaudited statements). Financial statements include balance sheets,
income statements and cash flow statements. Under
Sec. 2628.7(e)(1)(iii), if audited or unaudited financial statements
are not prepared, the Filer may satisfy the financial information
requirement by submitting copies of federal tax returns for the tax
year ending within its Information Year.
For most controlled group members whose financial information is
combined with that of other group members, the submission of the
consolidated financial statement for the group will satisfy the
obligation to submit individual financial statements
(Sec. 2628.7(e)(2)(i)). Limited financial information--a group member's
revenues and operating income for the Information Year, and its assets
as of the end of the Information Year--is required for each
contributing sponsor of a non-Exempt Plan included in such a
consolidated financial statement (Sec. 2628.7(e)(2)(ii)).
If the required financial information of a controlled group member
has been filed with the Securities and Exchange Commission, or has
otherwise been made publicly available, the Filer need not submit it to
PBGC. Section 2628.7(e)(3) requires only that the Filer include a
statement in its submission to the PBGC indicating when the information
was made available to the public and where the PBGC may obtain it.
The PBGC may request additional information from any Filer to
determine plan assets and liabilities and a Filer's financial status
(Sec. 2628.7(f)). For example, after a controlled group's parent
submits consolidated financial statements in accordance with
Sec. 2628.7(e)(2)(i), it proposes to sell one of its subsidiaries. In
that instance, the PBGC would normally request financial information
relating to the subsidiary that was to be sold. Nothing in this
proposed regulation limits the PBGC's authority under section 4003 of
ERISA to seek any information from a Filer by any means provided
thereunder.
Previously Provided Information
Any information previously submitted to the PBGC need not be
resubmitted. Section 2628.7(g) allows the Filer to incorporate the
previous submission by reference. For example, some of the required
actuarial information with respect to a Filer's plans may have already
been submitted to the PBGC in a reportable event filing; the Filer can
make a reference to the reportable event filing in its submission.
When To File
Under Sec. 2628.8(a), a Filer must submit the required information
to the PBGC on or before the one hundred and fifth day after the end of
the Filer's Information Year. (This due date is designed to be fifteen
days after the Securities and Exchange Commission's annual reporting
date for public companies.) If a plan's AVR or any of the related
supplementary actuarial information is not available by this due date,
the Filer may submit the unavailable information by the alternative due
date--15 days after the deadline for filing the plan's Form 5500 for
the plan year ending within the Filer's Information Year
(Sec. 2628.8(b)).
Filers may submit required information by mail, by overnight and
express delivery services, by hand, or by other means that are
acceptable to the PBGC. The PBGC invites Filers to offer suggestions
regarding procedures to electronically transmit some or all of the
required information.
Confidentiality
Generally, required information submitted to the PBGC by a Filer in
accordance with this regulation will not be made available or disclosed
to the public. This restriction on disclosure shall not apply to
publicly available information. For example, if a Filer submits
required information to the PBGC, part of which is also publicly
available, only that information that is not publicly available will be
subject to confidentiality. Further, as provided in section 4010(c) of
ERISA, these confidentiality strictures shall not apply to information
disclosed by the PBGC in administrative or judicial proceedings or to
Congress.
Penalties for Non-Compliance
Failure to provide information to the PBGC in accordance with the
requirements of this part would constitute a violation of Title IV of
ERISA. Section 4071 authorizes the PBGC to assess a penalty against any
person who fails, within the specified time limits, to provide material
information to the PBGC. All required information under this regulation
is deemed material by the PBGC. The PBGC may assess a penalty on a
pension plan's contributing sponsor and on each member of its
controlled group of up to
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$1,000 for each day for which a failure to submit required information
continues. The PBGC has the right to pursue other equitable or legal
remedies available to it under the law.
Effective Date
The regulation applies for Information Years ending on or after
December 31, 1995.
Paperwork Reduction Act
The PBGC has submitted the collection of information requirements
in this proposed regulation to the Office of Management and Budget for
review under section 3504(h) of the Paperwork Reduction Act (44 U.S.C.
chapter 35). 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. The PBGC estimates the public reporting burden for this
collection of information to average 215.3 hours for each of
approximately 100 controlled groups.
Comments concerning this collection of information should be
submitted to the Office of Management and Budget, Office of Information
and Regulatory Affairs, Room 10235, New Executive Office Building,
Washington, DC 20503; Attention: PBGC Desk Officer.
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 proposed regulation would implement
policy decisions made by Congress in requiring Filers to provide
audited financial statements and other required information annually to
the PBGC. Those 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 that, if adopted, this proposed regulation would not have a
significant economic impact on a substantial number of small entities.
The tests for identifying Filers under section 4010(b) of ERISA limit
the filing requirements to large companies and their controlled groups.
With respect to many of those groups, the PBGC will obtain audited
financial statements from public sources (such as the Securities and
Exchange Commission), rather than require each of the companies to file
the information with the PBGC. Further, the proposed regulation will
exempt plans with fewer than 500 participants from the actuarial
information requirements. The regulation would not require individual
financial information with respect to many of the companies within
controlled groups. In addition, the PBGC intends to develop the means
to allow Filers to submit required information electronically.
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.
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 proposes to amend
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
2628.1 Purpose and scope.
2628.2 Definitions.
2628.3 Required submission of information.
2628.4 Filers.
2628.5 Exemptions.
2628.6 Information Year.
2628.7 Required information.
2628.8 Due date and filing with the PBGC.
2628.9 Date of filing.
2628.10 Confidentiality of information submitted.
Authority: 29 U.S.C. 1302(b)(3); 29 U.S.C. 1310
Sec. 2628.1 Purpose and scope.
(a) Purpose. This part prescribes the procedures and the
information that Filers (as described in Sec. 2628.4(a) of this part)
must submit annually to 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--
Act means the Employee Retirement Income Security Act of 1974, as
amended.
Code means the Internal Revenue Code of 1986, as amended.
Contributing sponsor means a person who is a contributing sponsor
as defined in section 4001(a)(13) of the Act.
Controlled group means, in connection with any person, a group
consisting of that person and all other persons under common control
with such person, determined under part 2612 of this chapter.
Information Year means the year determined under Sec. 2628.6 of
this part.
Exempt Plan means a plan as described in Sec. 2628.5(a) of this
part.
Filer means a person who is a Filer as described in Sec. 2628.4 of
this part.
Fiscal year means, with respect to a person, the annual accounting
period or, if the person has not adopted a closing date, a calendar
year (i.e., the year ending on December 31).
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.
Plan means a single-employer plan (as defined in section
4001(a)(15) of the Act) that is covered by section 4021(a) and not
excluded under section 4021(b) of the Act.
Plan year means the calendar, policy, or fiscal year on which the
records of a Plan are kept.
Unfunded vested benefits means the amount determined under section
4006(a)(3)(E)(iii) of the Act and Sec. 2610.23 of this chapter (without
reference to Sec. 2610.24 of this chapter).
Value of benefit liabilities means the value of a Plan's benefit
liabilities (as defined in section 4001(a)(16) of the Act), as of the
end of the plan year ending within the Filer's Information Year, using:
(1) The PBGC's valuation assumptions for trusteed plans terminating
as of the end of that plan year, as prescribed in 29 CFR part 2619,
subpart C, and
(2) Plan census data as of the end of that plan year or the
beginning of the next plan year.
If such census data are not available, a projection of plan census data
from a date within the plan year must be used. 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 to the measurement date for these obligations. Thus, for
example, adjustments to the projection process may be required where
there has been a significant event (e.g., a plan amendment or a
curtailment) which has not been reflected in the projection
assumptions.
Sec. 2628.3 Required submission of information.
(a) General requirement. Except as provided in Sec. 2628.5, each
person who is a Filer as described in Sec. 2628.4(a) shall submit to
the PBGC annually on or
[[Page 35311]]
before the date specified in Sec. 2628.8(a) all information specified
in Sec. 2628.7 of this part.
(b) Submission by representative. One or more Filers or other
persons may act as a representative and submit the information
specified in Sec. 2628.7 on behalf of some or all Filers within a
controlled group. Representatives, other than Filers, must also submit
a written power of attorney signed by the Filer authorizing the
representative to act on the Filer's behalf in connection with the
required information.
Sec. 2628.4 Filers.
(a) General. A Filer is a contributing sponsor of a Plan and each
member of the contributing sponsor's controlled group if, for an
Information Year,
(1) The aggregate unfunded vested benefits of all Plans maintained
by the contributing sponsor and other members of the contributing
sponsor's controlled group exceed $50 million (disregarding those Plans
with no unfunded vested benefits) at the end of the plan year or years
ending within the Filer's Information Year;
(2) 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 plan year ending within the Filer's
Information Year with respect to any Plan maintained by the
contributing sponsor or any member of its controlled group; or
(3) The Internal Revenue Service has granted a waiver or waivers of
the minimum funding standards, as defined in section 303 of the Act and
section 412(d) of the Code, in excess of $1 million with respect to any
Plan maintained by the contributing sponsor or any member of its
controlled group, and any portion thereof is still outstanding at the
end of the plan year ending within the Filer's Information Year.
(b) All Plans, including any Exempt Plan as described in
Sec. 2628.5(a), maintained by members of a controlled group must be
taken into account in determining the persons who are Filers under this
section.
Sec. 2628.5 Exemptions.
(a) Exempt Plan. The actuarial information specified in
Sec. 2628.7(c) of this part is not required for a Plan (an ``Exempt
Plan'') that--
(1) Has no minimum funding waivers outstanding at the end of the
plan year ending within the Filer's Information Year,
(2) Has received all payments required to be made during the
Information Year under section 302 of the Act and Section 412 of the
Code, and
(3) Satisfies at least one of the following conditions--
(i) The Plan has no unfunded benefit liabilities, determined using
the market value of assets in the Plan (without regard to any
contributions receivable) at the end of the plan year ending within the
Filer's Information Year and the value of benefit liabilities; or
(ii) The Plan has fewer than 500 participants as of the end of the
plan year ending within the Filer's Information Year.
(b) Waiver of information requirements. The PBGC may waive the
requirement to submit required information with respect to a Filer, a
Plan, or groups thereof. The PBGC will exercise this discretion in
appropriate cases where it finds convincing evidence for such a waiver,
and any such waiver may be subject to conditions. A request for a
waiver must be filed in writing with the PBGC at the address provided
in Sec. 2628.8(d) no later than fifteen days prior to the applicable
date specified in Sec. 2628.8 of this part, and must state the facts
and circumstances on which the request is based.
Sec. 2628.6 Information Year.
(a) Determinations based on Information Year. An Information Year
is used under this part to determine which fiscal year and plan year
should be used to determine whether members of a controlled group are
Filers (Sec. 2628.4) and whether a Plan is an Exempt Plan
(Sec. 2628.5(a)), and to identify the information that a Filer must
submit (Sec. 2628.7) and the due date for submitting that information
(Sec. 2628.8(a)). A Filer is not required to change its fiscal year or
the plan year of a Plan, to report financial information on any
accounting period other than an existing fiscal year, or to report
actuarial information for any plan year other than the existing plan
year of a Plan.
(b) General. Except as provided in paragraph (c) of this section,
the Information Year shall be the fiscal year of the Filer or the
consolidated fiscal year of the Filer's controlled group.
(c) Controlled groups with different fiscal years. If members of a
controlled group report financial information for different fiscal
years, the Information Year shall be the calendar year. 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 beginning July 1, 1995, and Filer B's financial
information with respect to its fiscal year beginning October 1, 1995,
must be submitted to the PBGC following the end of the 1996 calendar
year (the calendar year in which those fiscal years end).
Sec. 2628.7 Required information.
(a) General. Except as otherwise provided in Sec. 2628.5 of this
part, the information to be submitted by a Filer is that specified in
paragraphs (b), (c), and (e) of this section with respect to each
member of the Filer's controlled group and each Plan maintained by any
member of the controlled group.
(b) Identifying information. (1) The name, address, and telephone
number of the Filer.
(2) The nine-digit Employer Identification Number (EIN) assigned by
the Internal Revenue Service to the Filer (if there is no EIN,
explain).
(3) If the Filer is a contributing sponsor of a Plan or Plans--
(i) The name of each Plan.
(ii) The EIN and the three-digit Plan Number (PN) assigned by the
contributing sponsor to each Plan, but--
(A) If the EIN-PN has changed since the beginning of the
Information Year, the previous EIN-PN and an explanation; or
(B) If there is no EIN-PN for the Plan, an explanation.
(4) The name and address of each other member of the Filer's
controlled group and the legal relationships of each (for example,
parent, subsidiary).
(c) Plan actuarial information. (1) The market value of Plan assets
(determined without regard to any contributions receivable) at the end
of the plan year ending within the Filer's Information Year.
(2) The value of benefit liabilities.
(3) Schedules or listings with the following information as of the
first day of the plan year ending within the Filer's Information Year:
(i) The distribution of active participants by 5-year age and
service groupings and, if benefits are based (in whole or in part) on
compensation, each grouping's average compensation;
(ii) The distribution of retirees by 5-year age groupings with each
grouping's average benefit amounts; and
(iii) The distribution of deferred vested participants by 5-year
age groupings with each grouping's average benefit amount to be paid at
normal retirement age.
(4) 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
[[Page 35312]]
funding standard account (as defined in section 302(b) of the Act and
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 and 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 actuarial methods used for that
plan year for purposes of section 302(b) and (d) of the Act and 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 change(s) 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.
(5) A written certification by the Plan's 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.
(d) Alternative compliance for plan actuarial information. If any
of the information specified in paragraph (c)(4) of this section is not
available by the date specified in Sec. 2628.8(a) of this part, 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. 2628.8(b), and
(2) Filing such information and a certification by the Plan's
enrolled actuary as described in paragraph (c)(5) of this section with
the PBGC by that alternative due date.
(e) Financial information. (1) Except as provided in paragraph
(e)(2) of this section, required financial information for each
controlled group member consists of--
(i) 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); or
(ii) If no audited financial statements are prepared, unaudited
financial statements for the fiscal year ending within the Information
Year; or
(iii) If neither audited nor unaudited financial statements are
prepared, copies of federal tax returns for the tax year ending within
the Information Year.
(2) If the financial information of a controlled group member is
combined with the information of other group members in a consolidated
financial statement, required financial information consists of--
(i) The consolidated, audited (or, if unavailable, unaudited)
financial statement for the Information Year; and
(ii) For each controlled group member included in such consolidated
financial statement that is a contributing sponsor of a Plan that is
not an Exempt Plan, the contributing sponsor's revenues and operating
income for the Information Year, and assets as of the end of the
Information Year.
(3) If any of the financial information required by paragraphs
(e)(1) or (e)(2) of this section is publicly available (for example,
the controlled group member has filed audited financial statements with
the Securities and Exchange Commission), 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.
(f) Additional information. The PBGC may, by written notification,
require any Filer to submit additional actuarial or financial
information that is necessary to determine Plan assets and liabilities
or the financial status of a Filer. Such information must be submitted
within 10 days after the date of the written notification or by a
different time specified therein.
(g) Previous submissions. If any required information has been
previously submitted to the PBGC, a Filer may incorporate such
information into the required submission by referring to the previous
submission.
(h) Penalties for non-compliance. If all of the information
required under this section 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
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. 2628.8 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. 2628.7(d)(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. 2628.7(d)(2) within 15 days
after the deadline for filing the Plan's annual report for the plan
year ending within the Filer's Information Year (see Sec. 2520.104a-
5(a)(2) of this title).
(c) Extensions. When the President of the United States declares
that, under the Disaster Relief Act of 1974, as amended (42 U.S.C.
5121, 5122(2), 5141(b)), a major disaster exists, the PBGC may extend
the due dates provided under paragraphs (a) and (b) of this section by
up to 180 days.
(d) How to file. Requests and information may be delivered by mail,
by overnight and express delivery services, 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.
Sec. 2628.9 Date of filing.
(a) Information filed under this part is considered filed on the
date of the United States postmark stamped on the cover in which the
information is mailed, if--
(1) The postmark was made by the United States Postal Service; and
(2) The document was mailed postage prepaid, properly addressed to
the PBGC.
(b) If the Filer sends or transmits the information to the PBGC by
means other than the United States Postal Service, the information is
considered filed on the date it is received by the PBGC. Information
received on a weekend or Federal holiday or after 5 p.m. on a weekday
is considered filed on the next regular business day.
(c) 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
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.
[[Page 35313]]
Sec. 2628.10 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.
Issued in Washington, DC this 30th day of June, 1995.
Martin Slate,
Executive Director, Pension Benefit Guaranty Corporation.
[FR Doc. 95-16510 Filed 7-5-95; 8:45 am]
BILLING CODE 7708-01-P
