Federal Register, Volume 78 Issue 64 (Wednesday, April 3, 2013)

[Federal Register Volume 78, Number 64 (Wednesday, April 3, 2013)]
[Proposed Rules]
[Pages 20039-20066]
From the Federal Register Online via the Government Printing Office [http://www.gpo.gov/]
[FR Doc No: 2013-07664]

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Proposed Rules
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 78, No. 64 / Wednesday, April 3, 2013 /
Proposed Rules

[[Page 20039]]

PENSION BENEFIT GUARANTY CORPORATION

29 CFR Parts 4000, 4001, 4043, 4204, 4206, and 4231

RIN 1212-AB06

Reportable Events and Certain Other Notification Requirements

AGENCY: Pension Benefit Guaranty Corporation.

ACTION: Proposed rule.

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SUMMARY: Under ERISA, pension plans and the companies that sponsor them
are required to report to PBGC a range of corporate and plan events. In
2009, PBGC proposed to increase reporting requirements by eliminating
most reporting waivers. Plan sponsors and pension practitioners
objected, saying that PBGC would have required reports where the actual
risk to plans and PBGC is minimal. On reflection, PBGC agrees. This new
proposal exempts most companies and plans from many reports, and
targets requirements to the minority of companies and plans that are at
substantial risk of default.
PBGC developed a revised proposal under the auspices of
Presidential Executive Order 13563, which directs agencies to review
and revise existing regulations. Under the new proposal, reporting
would be waived for most events currently covered by funding-based
waivers if a plan or its sponsor comes within a financial soundness
safe harbor based on widely available measures already used in
business. Waivers for small plans would be expanded and some other
existing waiver provisions would be retained with modifications; other
waivers would be eliminated.
In this way, PBGC can reduce unnecessary reporting requirements,
while at the same time target its resources to plans that are at risk.
The revised proposal will exempt more than 90 percent of plans and
sponsors from many reporting requirements. Reporting requirements would
also be made simpler and more uniform.
PBGC will also provide for more open and extensive public comment
on the proposed rule.

DATES: Comments must be submitted on or before June 3, 2013. A public
hearing will be held on June 18, 2013. Outlines of topics to be
discussed at the hearing must be submitted on or before June 4, 2013.
See Public Participation below for more information on the hearing.

ADDRESSES: Comments, identified by Regulation Identifier Number (RIN)
1212-AB06, may be submitted by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov/.
Follow the Web site instructions for submitting comments.
Email: reg.comments@pbgc.gov.
Fax: 202-326-4224.
Mail or Hand Delivery: Regulatory Affairs Group, Office of
the General Counsel, Pension Benefit Guaranty Corporation, 1200 K
Street NW., Washington, DC 20005-4026.
All submissions must include the Regulation Identifier Number for
this rulemaking (RIN 1212-AB06). Comments received, including personal
information provided, will be posted to http://www.pbgc.gov/. Copies of
comments may also be obtained by writing to Disclosure Division, Office
of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K
Street NW., Washington DC 20005-4026, or calling 202-326-4040 during
normal business hours. (TTY and TDD users may call the Federal relay
service toll-free at 1-800-877-8339 and ask to be connected to 202-326-
4040.)
Outlines of topics to be discussed at the public hearing on this
rule must be submitted by email to regs.comments@pbgc.gov or by mail or
courier to Regulatory Affairs Group, Office of the General Counsel,
Pension Benefit Guaranty Corporation, 1200 K Street NW., Washington, DC
20005-4026. See Public Participation below for more information on the
hearing.

FOR FURTHER INFORMATION CONTACT: Catherine B. Klion, Assistant General
Counsel (Klion.Catherine@PBGC.gov), Regulatory Affairs Group, Office of
the General Counsel, Pension Benefit Guaranty Corporation, 1200 K
Street NW., Washington, DC 20005-4026; 202-326-4024. (TTY/TDD users may
call the Federal relay service toll-free at 1-800-877-8339 and ask to
be connected to 202-326-4024.)

SUPPLEMENTARY INFORMATION:

Executive Summary--Purpose of the Regulatory Action

This rule is needed to conform PBGC's reportable events regulation
to changes in the law, to avoid unnecessary reporting requirements, to
make reporting more efficient and effective, and as a result help
preserve retirement plans. It does these things by amending the
regulation to track new legal rules, to change the scope of some
reportable events, and to replace the existing waiver structure with a
new structure including ``safe harbors'' that relieves reporting
burdens on companies and plans where there is little risk to pensions.
PBGC's legal authority for this action comes from section
4002(b)(3) of the Employee Retirement Income Security Act of 1974
(ERISA), which authorizes PBGC to issue regulations to carry out the
purposes of title IV of ERISA, and section 4043 of ERISA, which gives
PBGC authority to define reportable events and waive reporting.

Executive Summary--Major Provisions of the Regulatory Action

Changing the Waiver Structure

Under the current waiver structure for reportable events, PBGC
often doesn't get reports it needs; at the same time, it gets many
reports it doesn't need--reports that are unnecessary. This mismatch
occurs because the current waiver structure isn't well-tied to the
actual risks and causes of plan terminations.
When a reporting waiver keeps PBGC from learning of a reportable
event that presents a high level of risk to a plan, its participants,
and the pension insurance system, PBGC loses the opportunity to take
protective action. That action might include steps such as involuntary
plan termination or negotiation with the plan sponsor to improve plan
funding.
But when there is no waiver for a low-risk event, the reporting
burden of the plan or sponsor involved outweighs the usefulness of the
report to PBGC.
In both these cases, the result is to reduce retirement security.
In the former case, PBGC is unable to step in to support plan benefits
in a timely way, either because a plan may have been terminated that
could otherwise have been preserved, or because an

[[Page 20040]]

involuntary termination occurred after exposure had increased
unreasonably. In the latter case, the unnecessary reporting burden may
lead some firms to reconsider their decision to sponsor defined-benefit
pension plans.
The most significant provision of this rule is to propose a
blueprint for a new reportable events waiver structure that is more
closely focused on risk than the current waiver structure. Some waivers
that poorly identify risky situations--like those based on an
apparently modest level of plan underfunding--would be eliminated; at
the same time, new ``safe harbors'' would be established--based on
financial soundness--that are better measures of low plan risk.

Conforming to Changes in the Law

The Pension Protection Act of 2006 (PPA 2006) made changes in the
law that affect the test for whether advance reporting of certain
reportable events is required. The test is based on the variable-rate
premium rules, which PPA 2006 changed. This rule would conform the
advance reporting test to the new legal requirements.

Revision of Definitions of Reportable Events

The rule would simplify the descriptions of several reportable
events and make some event descriptions narrower so that compliance is
easier and less burdensome. One event would be broadened in scope, and
clarification of another event would have a similar result. These
changes, like the waiver changes, are aimed at tying reporting burden
to risk.

Mandatory E-Filing

The rule would make electronic filing of reportable events notices
mandatory. This would further PBGC's ongoing implementation of the
Government Paperwork Elimination Act. E-filing is more efficient for
both filers and PBGC and has become the norm for PBGC's regulated
community.

Introduction

On January 18, 2011, the President issued Executive Order 13563 on
Improving Regulation and Regulatory Review, directing agencies to
review and improve their regulatory processes. In the spirit of
Executive Order 13563 and in light of the comments received on its 2009
proposal, PBGC reexamined the reportable events regulation and the
proposed amendment with several factors in mind:
Commenters said that under the 2009 proposal, many
companies would have been required to report to PBGC on non-pension-
focused activities in circumstances where those activities were
unlikely to affect their pension plans.\1\ To avoid such a result, PBGC
has sought ways to establish safe harbors that waive reporting
requirements in such circumstances.
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\1\ Among the many comments received on this point: ``* * *in
many situations in which reporting would be required--the reportable
event would not create any meaningful risk that the employer would
be unable to meet its plan funding obligations.'' ERISA Industry
Committee comment letter, accessible on PBGC's Web site
(www.PBGC.gov).
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Since the reportable events program was legislated almost
four decades ago, a vast quantity of business and financial information
has become available through the internet and other means. As a result,
PBGC can require less direct reporting from its insured plans and their
sponsors.
When reporting to PBGC is necessary, to the extent
practicable PBGC can and should rely on procedures, documents, and
performance standards that are already established and accepted. In
short, PBGC is trying not to ``reinvent the wheel,'' nor does PBGC want
to require insured plans and the companies that sponsor them to do so.

Establishing Financial Soundness Safe Harbors

PBGC proposes to establish safe harbors to enable financially sound
businesses and plans to avoid having to report many events,
particularly those events that seem to have little chance of
threatening pension plans.
Establishing Financial Soundness for Companies. A business
would be in the safe harbor if it has adequate capacity to meet its
obligations in full and on time, as evidenced by meeting five criteria,
including passing a ``credit report'' test and four other criteria
designed to measure various aspects of financial soundness. The credit
report test would require that the business have a credit report score
from a commercial credit reporting company that is commonly used in the
business community and that the score indicate a low likelihood that
the company would default on its obligations. (The vast majority of
plan sponsors already have credit report scores.) The other criteria
would be that the business have: (a) Positive net income, (b) no
secured debt (with some exceptions, such as purchase-money mortgages
and leases), (c) no loan defaults or similar issues, and (d) no missed
pension plan contributions (again, with some exceptions). For those in
the safe harbor, no post-event reporting would be required for most
events to which funding-based waivers currently apply.\2\
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\2\ Most reporting requirements under the reportable events
regulation call for post-event reports, but in some cases advance
reporting is required. The new proposal would conform the advance
reporting threshold test to changes in the law and eliminate certain
extensions of the time to file (see Advance-Notice Extensions
below), but would make other changes to advance-notice provisions
only where they refer to post-event notice provisions that would be
changed. Except as otherwise noted, this preamble discusses post-
event reporting only.
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Establishing Financial Soundness via Plans. A plan would
be in the safe harbor if it were either fully funded on a termination
basis or 120 percent funded on a premium basis.\3\
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\3\ The current regulation provides a waiver in some
circumstances based on 80 percent funding on a premium basis.
However, in PBGC's experience, that test is inadequate, in that many
plans that have undergone distress or involuntary termination
nonetheless have been 80 percent funded on a premium basis. See
Financial Soundness Safe Harbor for Plans below.
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The proposal would also generally provide more small-plan waivers
and preserve foreign-entity and de minimis waivers but eliminate most
other waivers.
In addition, PBGC proposes to simplify reporting rules, to make
them more uniform, and where possible to permit submission of
information already prepared by plans and companies for other purposes.

Impact of Proposal

Overall, PBGC expects the proposal to exempt or waive more than 90
percent of plans and sponsors from many reporting requirements. The
proposal will reduce the burden on the vast majority of companies
(estimated at approximately three-fourths) that are financially sound.
This reduction may make them less likely to eliminate their defined
benefit plans and thereby have a beneficial effect on retirement
security generally. In addition, the expansion of small plan waivers
could help retention of small plans (which represent about two-thirds
of all plans).
Burden on plan sponsors with de minimis components in their
controlled groups will be reduced because the inclusion of additional
de minimis waivers for certain events will reduce both reporting and
the need to monitor for reportable events to which waivers apply.
Some reportable events present little or no risk to the pension
insurance system--where, for example, the plan sponsor is financially
sound and the risk of plan termination low. Reports of such events are
unnecessary in the sense that PBGC typically reviews but takes no
action on them. Based on an analysis of 2011 data, PBGC found that

[[Page 20041]]

the proportion of such unnecessary filings would be cut by 88 percent
under the proposed regulation.\4\ The total number of filings under the
proposed rule would be comparable to those under the present
regulation, but they would be much reduced compared to the 2009
proposal, and the proportion of unnecessary reports, and the regulatory
burden on financially sound sponsors and plans, would be dramatically
reduced. Fewer unnecessary reports means a more efficient reporting
system and a greater proportion of filings that present the opportunity
for increased plan protection through monitoring and possible
intervention in transactions based on risk, leading to better
protection for the pension insurance system and retirement security
generally.
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\4\ To 5 percent under the proposal compared to 42 percent under
the present regulation.
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If PBGC gets a reportable event notice, it can intervene earlier in
the process. Using data from 2011, PBGC has estimated the benefit of
better targeted reporting under the new proposal in terms of the value
of early intervention as a creditor where a reportable event may
foreshadow sponsor default. Early intervention as a creditor leads to
higher recoveries of plan underfunding. PBGC estimates that the value
of early intervention would exceed the dollar equivalent of the
increased burden associated with the higher rate of targeted reporting
by approximately $3.8 million.
The methodology of these studies is discussed in more detail under
Executive Order 12866 ``Regulatory Planning and Review'' and Executive
Order 13563 ``Improving Regulation and Regulatory Review'' at the end
of this preamble.
The new proposal is described in more detail below.

Background

The Pension Benefit Guaranty Corporation (PBGC) administers the
pension plan termination insurance program under Title IV of the
Employee Retirement Income Security Act of 1974 (ERISA). Under section
4007 of ERISA, pension plans covered by Title IV must pay premiums to
PBGC. Section 4006 of ERISA establishes the premium rates and includes
provisions for determining the variable-rate premium (VRP), which is
based on plan funding rules. PBGC's regulations on Premium Rates (29
CFR part 4006) and Payment of Premiums (29 CFR part 4007) implement the
premium rules. A number of other provisions of ERISA, and of PBGC's
other regulations, refer to funding and premium rules. Thus, any change
in the funding and premium rules may require corresponding changes in
other PBGC regulations.

Reportable Events

One such regulation is PBGC's regulation on Reportable Events and
Certain Other Notification Requirements (29 CFR part 4043),
implementing section 4043 of ERISA, which requires that PBGC be
notified of the occurrence of certain ``reportable events.'' Reportable
events include such plan events as missed contributions, insufficient
funds, and large pay-outs and such sponsor events as loan defaults and
controlled group changes. Like section 4043, the reportable events
regulation generally requires post-event reporting, but also calls for
advance reporting for non-public companies where plan underfunding is
large. The threshold test for advance reporting measures underfunding
by reference to VRP quantities (in particular, the values of assets and
vested benefits as determined for VRP purposes).
The Pension Protection Act of 2006 (PPA 2006) changed the plan
funding rules in Title I of ERISA and in the Internal Revenue Code of
1986 (Code) and amended the VRP provisions of section 4006 of ERISA to
conform to the changes in the funding rules. PBGC amended its premium
rates regulation and its premium payment regulation accordingly,
effective for plan years beginning after 2007. Since underfunding for
purposes of reportable events was measured by reference to the VRP, the
thresholds for reportable events also had to be modified. Pending the
adoption of conforming amendments to the reportable events regulation,
PBGC has issued a series of Technical Updates providing transitional
guidance on how the PPA 2006 changes affect compliance with the
reportable events requirements.\5\
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\5\ On November 28, 2007, PBGC issued Technical Update 07-2,
providing transitional guidance on the applicability of the changes
made by PPA 2006, and the corresponding changes proposed for PBGC
premium regulations, to the determination of funding-related amounts
for purposes of the reportable events regulation. On March 24, 2008,
PBGC issued Technical Update 08-2, providing a waiver for reporting
of missed quarterly contributions by certain small employers in
2008. On January 9, 2009, PBGC issued Technical Update 09-1,
providing interim guidance on compliance with reportable events
requirements for plan years beginning in 2009. On April 30, 2009,
PBGC issued Technical Update 09-3, providing a waiver or alternative
compliance method (depending on plan size) for reporting of missed
quarterly contributions by certain small employers in 2009. On
November 23, 2009, PBGC issued Technical Update 09-4, extending the
guidance in Technical Updates 09-1 and 09-3 for 2010. On December 3,
2010, PBGC issued Technical Update 10-4, extending the guidance in
Technical Update 09-4 for 2011. On December 7, 2011, PBGC issued
Technical Update 11-1, extending the guidance in Technical Update
10-4 for 2012. Technical Updates are available on PBGC's Web site,
http://www.pbgc.gov/.
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2009 Proposed Rule

On November 23, 2009 (at 74 FR 61248), PBGC published in the
Federal Register for notice and comment a proposed rule providing for
amendment of PBGC's reportable events regulation to make the advance
reporting threshold test consistent with the PPA 2006 funding rules and
PBGC's new variable-rate premium rules. The rule also proposed to
eliminate most automatic waivers and filing extensions, create two new
reportable events based on provisions in PPA 2006, and make other
changes to the reportable events regulation. It also provided for
amendment of five other PBGC regulations to revise statutory cross-
references and otherwise accommodate the statutory and regulatory
changes in the premium rules.
PBGC received comments on the proposed rule from eleven
commenters--actuaries, pension consultants, and organizations
representing employers and pension professionals. In general, the
commenters considered the proposal unduly burdensome, primarily because
of the elimination of most reportable event waivers. Several commenters
urged PBGC to rethink and repropose the rule to address issues raised
by the comments.

Executive Order 13563

On January 18, 2011, the President issued Executive Order 13563 on
Improving Regulation and Regulatory Review (76 FR 3821, January 21,
2011). Executive Order 13563 encourages identification and use of
innovative tools to achieve regulatory ends, calls for streamlining
existing regulations, and reemphasizes the goal of balancing regulatory
benefits with burdens on the public.
Executive Order 13563 also requires agencies to develop a plan to
review existing regulations to identify any that can be made more
effective or less burdensome in achieving regulatory objectives. On
April 1, 2011 (at 76 FR 18134), PBGC published a request for public
comments on developing its preliminary review plan. The five responses
to this comment request (all from commenters on the 2009 proposal)
included comments on the 2009 proposed rule (largely reflective of
those submitted previously) as well as comments on the existing
regulation.

[[Page 20042]]

New Proposal

PBGC has reconsidered the reportable events regulation and the 2009
proposed amendment in the spirit of Executive Order 13563 and in light
of the comments. In addition to conforming the reportable events
regulation to PPA 2006's changes to the funding and premium rules, this
new proposal includes significant changes to address issues under the
regulation in a new way and to reduce burden in areas where that can be
done without unduly compromising the objectives of section 4043.
In particular, the proposal features the introduction of a newly
conceived ``safe harbor'' from reporting in response to comments
suggesting that PBGC reduce reporting where risk to the pension
insurance system is low. This safe harbor, applicable to five
reportable events, would be based on employer financial soundness
(i.e., an employer's capacity to meet its financial commitments in full
and on time) as determined through credit report scores and the
satisfaction of related criteria. A second safe harbor would be
available for plans that could meet one of two funding tests that would
be more stringent than those currently provided for existing funding-
based waivers. The new proposed rule would also preserve or extend some
waivers under the existing regulation that the 2009 proposal would have
eliminated.
Under this approach, PBGC would rely more heavily on publicly
available sources of information, including information publicly
reported to other agencies, to learn about reportable events. As a
result, it might take longer for PBGC to learn of some reportable
events, but PBGC believes the approach would provide a better balance
between the agency's need for information and sponsors' interest in
minimizing regulatory burdens on the conduct of their business.
Public comments and regulatory changes (from both the existing
regulation and the 2009 proposal) are discussed below in the context of
the provisions they relate to.

Reportable Events

PBGC proposes to amend the reportable events regulation to
accommodate the changes to the funding and premium rules; to replace
many automatic waivers with a new and simpler system of waivers
featuring ``safe harbors'' for five events based on plan sponsors'
financial soundness and on high levels of plan funding; and to make
other modifications.
Reports required by section 4043 of ERISA tell PBGC about events
that may presage distress termination of plans or require PBGC to
monitor or involuntarily terminate plans. These important reporting
requirements are designed to protect participants and PBGC. When PBGC
has timely information about a reportable event, it can take steps to
encourage plan continuation--for example, by exploring alternative
funding options with the plan sponsor--or, if plan termination is
called for, to minimize the plan's potential funding shortfall through
involuntary termination and maximize recovery of the shortfall from all
possible sources. Without timely information about a reportable event,
PBGC typically learns that a plan is in danger only when most
opportunities for protecting participants and the pension insurance
system may have been lost. But while such information can be critical
to the protection of the pension insurance system, the circumstances
surrounding some events may make reporting unnecessary. Thus, the
regulation includes a system of waivers and extensions to ease
reporting burdens in certain cases.

Automatic Waivers and Extensions--Overview

Section 4043.4 of the reportable events regulation provides that
PBGC may grant waivers and extensions case by case. In addition, the
existing regulation provides automatic waivers and extensions for most
of the reportable events. For example, waivers are provided in some
cases for small plans, for plans that meet certain funding tests, or
for events affecting de minimis segments of controlled groups or
foreign entities. In cases where it may be impossible to know by the
filing due date whether criteria for a particular waiver are met, an
extension gives a potential filer an opportunity to determine whether
the waiver applies.
PBGC proposes to replace many of these automatic waivers with a new
and simpler system, including many of the automatic waivers currently
available and featuring new automatic waivers that would apply where a
sponsor or plan comes within a financial soundness safe harbor.\6\ The
proposal would retain the complete waivers provided for certain
statutory events--in Sec. Sec. 4043.21 (disqualification or
noncompliance), 4043.22 (amendment decreasing benefits), 4043.24
(termination), and 4043.28 (merger, consolidation, or transfer)--that
have been replaced by events defined in the regulation. PBGC also
proposes to eliminate the automatic extensions under the existing
regulation. These extensions are currently needed because many existing
waivers are based on facts that may not be known when an event occurs.
Since waivers of this kind are being replaced, related extensions are
no longer needed.\7\
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\6\ See Summary Chart, below, for an overview of waivers and
safe harbors under the current regulation, the 2009 proposal, and
this proposed rule.
\7\ The proposed rule would provide extensions for small plans
to determine whether they satisfied the plan financial safe harbor
test based on plan funding on a premium basis. There would also be
an extension to provide plans time to determine whether the year-end
active participant count showed that an active participant reduction
event had occurred by attrition at the end of the year.
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To give plans and sponsors time to institute any necessary event-
monitoring programs and otherwise adjust to changes in the regulation,
PBGC is proposing to defer the applicability date of the final rule.
PBGC's experience indicates that many of the automatic waivers and
extensions in the existing reportable events regulation are depriving
it of early alerts that would enable it to mitigate distress
situations. For example, the 2009 proposed rule noted that of the 88
small plans terminated in 2007, 21 involved situations where, but for
an automatic waiver, an active participant reduction reportable event
notice would have been required an average of three years before
termination. Had those notices been filed, the need for some of those
terminations might have been avoided, and PBGC might have been able to
reduce the impact of other terminations on the pension insurance
system.\8\ Concerns of this kind led PBGC in 2009 to propose the
elimination of most automatic waivers in the reportable events
regulation.
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\8\ Examples of the value of early alerts in mitigating distress
situations can also be found in other PBGC programs. For example, as
part of its Early Warning Program, PBGC negotiated substantial
protections from Daimler AG for the pension plans of Daimler's
former Chrysler North America division, and the Chrysler plans
remain ongoing today. In another case, PBGC negotiated substantial
protections under ERISA section 4062(e) for a plan sponsored by
Visteon Corporation. When the company filed for Chapter 11
protection in 2009, the company initially contemplated terminating
three of its four pension plans, and shifting the obligations to the
PBGC's insurance program, which would have caused $100 million in
benefit reductions for the company's 22,000 workers and retirees and
added more than $500 million to the PBGC's shortfall. However, due
in part to the negotiated protections, all of the company's pension
plans remain ongoing today.
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The commenters uniformly opposed the proposal to eliminate most
waivers. Commenters said that the increase in the public's burden of
compliance would outweigh the benefit to the pension insurance system
of the

[[Page 20043]]

additional reporting. They averred that the circumstances in which
existing waivers apply pose little risk to PBGC and expressed concern
that the proposed changes to the rule would discourage employers from
continuing to maintain pension plans covered by Title IV.
In response to the comments, PBGC has attempted to identify
circumstances that appear less likely to call for involuntary plan
termination and is now proposing a new set of automatic waivers more
appropriately tailored to focus on such situations. In particular, PBGC
proposes to create safe harbors based on sponsor and plan financial
soundness. These safe harbors would apply to post-event reporting
requirements for the events of active participant reduction,
distribution to a substantial owner, controlled group change,
extraordinary dividend, and transfer of benefit liabilities--all the
reportable events to which a funding-based waiver applies under the
existing regulation, except liquidation and loan default. PBGC feels
that the occurrence of one of these latter two events is at odds with
the premise of financial soundness underlying the safe harbor and
portends likely deterioration in plan funding due to missed
contributions. (As discussed below, this consideration would not apply
if the event qualified for a foreign-entity or de minimis waiver.)

Financial Soundness Safe Harbor for Plan Sponsors

Many commenters on the 2009 proposal contended that if funding-
based waivers were eliminated, plans and plan sponsors would be
required to report events posing minimal risk to PBGC and the pension
insurance system. To address the issue of risk, PBGC proposes to
provide a risk-based ``safe harbor.'' PBGC is open to suggestions from
the public to help identify existing, widely accepted standards that
could form the basis for such a safe harbor. Pending such suggestions,
PBGC is proposing, as discussed below, to base the safe harbor on the
adequate capacity of an employer to meet its financial commitments in
full and on time based on a combination of five factors, including a
standard of financial strength reflected by commercial credit report
scores and four confirmatory standards.
The new safe harbor would generally apply if, when a reportable
event occurred for a plan, the applicable financial soundness criteria
were met by the plan's contributing sponsor \9\ or (where the
contributing sponsor was a member of a controlled group) by the
contributing sponsor's highest U.S. parent in the controlled group
(that is, the highest level U.S. company in the group that was in the
contributing sponsor's chain of ownership). For a change in
contributing sponsor, the criteria would be applied to the post-
transaction sponsor group; for a transfer of benefit liabilities, the
criteria would be applied to both the transferor and the surviving
transferee plans' sponsor groups. The regulation would refer to an
entity that satisfied the applicable criteria as ``financially sound.''
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\9\ For multiple employer plans, all sponsors would have to
qualify.
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Focusing on the financial soundness of the plan sponsor (rather
than just the funding level of the plan) is consistent with section
4041 of ERISA, which permits distress termination of underfunded
pension plans only in situations where plan sponsors are in bankruptcy
or severe financial straits. This safe harbor proposal reflects PBGC's
experience that the financial soundness of a plan sponsor generally
correlates inversely with the risk of an underfunded termination of the
sponsor's pension plan. One major component of the risk of underfunded
termination is the likelihood that the plan sponsor will, within the
near future, fall into one of the ``distress'' categories in section
4041(c)(2)(B) of ERISA (liquidation, reorganization, or inability to
pay debts or support the plan). Another is that the sponsor will go out
of business, abandoning the plan and forcing PBGC to terminate it under
section 4042 of ERISA. Thus, the risk of underfunded termination of a
plan within the near future depends most significantly on the plan
sponsor's financial strength.\10\
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\10\ In 2011, 90 percent of reportable events reports from
filers that were below investment grade resulted in the opening of
case files. For this purpose, ``investment grade'' means a credit
rating of Baa3 or higher by Moody's or BBB- or higher by Standard
and Poor's.
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In particular, PBGC believes the ability of a sponsor to meet its
senior unsecured debt obligations reflects the sponsor's ability to
meet pension plan funding obligations because of the parity in
bankruptcy of senior unsecured debt and pension plan obligations.
PBGC's experience with its Early Warning Program \11\ suggests that the
higher the financial quality of a plan sponsor, the greater is the
sponsor's commitment to its pension plan and its ability to meet its
pension funding obligations. And analysis of PBGC data indicates that
the credit ratings of sponsors of the vast majority of underfunded
plans taken over by PBGC were below investment grade for many years
before termination.\12\
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\11\ See Technical Update 00-3.
\12\ See Private Pensions, Recent Experiences of Large Defined
Benefit Plans Illustrate Weaknesses in Funding Rules, GAO, May 2005,
http://www.gao.gov/new.items/d05294.pdf, p. 30. For this purpose,
GAO considered ``investment grade'' to correspond to a rating of BBB
or higher.
---------------------------------------------------------------------------

Typically, sponsors of pension plans that present the greatest
exposure for PBGC (large plans that are not fully funded) are rated by
one or more large nationally recognized statistical rating
organizations (NRSROs) that are registered with the Securities and
Exchange Commission. These NRSRO ratings are among the most well-known
and widely used measures of financial soundness for such large plan
sponsors. But while credit ratings of a plan sponsor or its senior
unsecured debt obligations would seem to be a good basis for a
financial soundness safe harbor, many plan sponsors (primarily small
plan sponsors) do not have such ratings. Furthermore, the Dodd-Frank
Wall Street Reform and Consumer Protection Act (Pub. L. 111-203)
requires federal agencies to remove references to and requirements of
reliance on credit ratings in regulations.\13\
---------------------------------------------------------------------------

\13\ See section 939A of the Dodd-Frank Act.
---------------------------------------------------------------------------

To avoid these drawbacks, PBGC proposes to use, as one of five
criteria of financial soundness, credit scores reported by commercial
credit reporting companies (CCRCs), which are already issued for the
vast majority (over 90 percent) of businesses that sponsor plans
covered by Title IV of ERISA. These commercial ratings are
substantially different from traditional credit ratings. A CCRC
generally assesses the creditworthiness of a business by reference to
the ability of the business to pay its trade and other debts rather
than by reference to the financial strength of the business reflected
in financial statements (as credit rating agencies do). Just as a
company's credit score is used by prospective creditors in evaluating
the probability that an obligation will be paid, PBGC believes that it
can appropriately use such scores as a measure of financial strength,
which in turn is an indicator of the level of risk that a company will
fail to meet its pension plan funding obligations. CCRCs are not within
the purview of the Dodd-Frank Act since the relevant provisions cover
credit ratings and credit rating agencies but not credit reporting
companies (or, by implication,

[[Page 20044]]

the credit scores and reports they produce).\14\
---------------------------------------------------------------------------

\14\ The Securities Exchange Act of 1934 (the Exchange Act),
which is amended by relevant portions of the Dodd-Frank Act, defines
a ``credit rating'' as an assessment of the creditworthiness of an
obligor as an entity or with respect to specific securities or money
market instruments and a ``credit rating agency'' as any entity
engaged in, among other things, the business of issuing credit
ratings. See sections 3(a)(60) and (61) of the Exchange Act.
However, the definition of credit rating agency under section
3(a)(61) of the Exchange Act specifically ``does not include a
commercial credit reporting company.''
---------------------------------------------------------------------------

To make the credit scores underlying this test for the financial
soundness safe harbor as reliable and as uniform as possible, and
minimize the burden of obtaining such scores, PBGC proposes to require
that a credit score be reported by a CCRC that is commonly used in the
business community (e.g., Dun & Bradstreet \15\ ). To satisfy this
criterion for the financial soundness safe harbor, the credit report of
a plan sponsor (or highest U.S. parent) by a CCRC that is commonly used
in the business community would have to reflect a credit score
indicating a low likelihood that the company would default on its
obligations.
---------------------------------------------------------------------------

\15\ Dun & Bradstreet provides free credit reports to companies
willing to provide certain financial information for analysis and a
free alert system to inform companies of changes in their credit
scores (to permit inexpensive monitoring) and issues credit reports
on at least 90 percent of sponsors of PBGC-covered plans. The United
Kingdom's Pension Protection Fund, which performs pension protection
functions like PBGC's, uses Dun & Bradstreet analyses to measure the
risk of insolvency of sponsoring employers.
---------------------------------------------------------------------------

Scores that satisfy the standard in the regulation may change over
time, because of changes in scoring methods or for other reasons. PBGC
will provide, and update as necessary, reportable events filing
instructions to guide filers in determining whether their credit scores
meet the standard. The instructions will include one or more examples
of scores by commercial credit reporting companies commonly used in the
business community that indicate a low likelihood that a company will
default on its obligations. To give an idea of the level of score that
PBGC has in mind, a minimum Dun & Bradstreet financial stress score of
1477 would have satisfied the standard in 2011.
PBGC invites commenters to identify CCRCs other than Dun &
Bradstreet that are commonly used in the business community now and to
suggest ways that PBGC can remain currently informed of the identity of
all such CCRCs as usage by the business community changes over time.
This financial strength criterion relies on private-sector
commercial credit scores that most plan sponsors (or their U.S.
parents) already have and that are used in a wide variety of business
contexts. Such scores represent well known, objective, non-governmental
assessments of financial soundness. PBGC would not itself evaluate the
creditworthiness of plan sponsors as a condition to sponsors' use of
the safe harbor. Sponsors would not have to certify or prove
creditworthiness to PBGC--or even report a credit score--in order to
take advantage of the safe harbor. For a sponsor not currently the
subject of credit reporting, PBGC believes it would entail minimal
effort and expense to have a CCRC that is commonly used in the business
community begin issuing such reports on the sponsor.\16\ As discussed
below under Small-Plan Waivers, small plans would have separate
exemptions.
---------------------------------------------------------------------------

\16\ A company may have its credit score reported by a CCRC
simply by providing relevant data to the CCRC.
---------------------------------------------------------------------------

As stated above, a sponsor would come within the financial
soundness safe harbor if it passed the ``credit report'' test and in
addition satisfied four further criteria.
One of these further criteria for the sponsor financial soundness
safe harbor would be based on whether the sponsor (or its highest-level
U.S. parent) has secured indebtedness. A lender's insistence on
security reflects a level of concern over whether its loan will be
timely repaid, typically because it judges that the borrower's
creditworthiness is questionable. Thus, in general, if a company is
forced to make use of secured debt, there is the suggestion of risk of
loss that must be mitigated by the securing of collateral. If the
borrower is a plan sponsor, there is a concomitant risk of underfunded
plan termination during that same time frame. Conversely, this
implication of risk does not arise where a company is not forced to
borrow with security. Thus, an absence of secured indebtedness tends to
be associated with a greater degree of financial soundness.
For purposes of this test, PBGC would except indebtedness incurred
in connection with the acquisition or improvement of property and
secured only by that property--such as mortgages and equipment
financing (including capital leases). Secured debt of this kind is not
uncommon even for financially sound businesses. But PBGC is aware that
there may be other circumstances in which a company capable of
borrowing without security might nonetheless choose to offer security
to a lender--for example, if doing so would significantly reduce the
cost of a loan. PBGC seeks public comment on the extent to which the
proposed no-secured-debt test might be failed by plan sponsors whose
risk level is in fact as low as that of other sponsors capable of
passing the test. PBGC also seeks suggestions for ways to modify the
no-secured-debt test--for example, by carving out a wider class of debt
than purchase-money obligations--to make it correspond better with
commercial reality.
Another criterion for the sponsor financial soundness safe harbor
would be that, for the past two years, the sponsor (or its highest-
level U.S. parent) has had positive net income under generally accepted
accounting principles (GAAP) or International Financial Reporting
Standards (IFRS). This requirement serves to confirm both that the
business is successful and that it has been operating for at least two
years. (For non-profit entities, ``net income'' would be measured as
the excess of total revenue over total expenses as required to be
reported on Internal Revenue Service Form 990.)
In this connection, PBGC seeks public comment on the extent to
which there are companies whose financial statements are not prepared
using GAAP or IFRS but whose income level is comparable to the
standards proposed for this criterion. PBGC seeks suggestions for
supplementing the GAAP/IFRS standards with alternative standards to
accommodate such companies.
The two remaining criteria are intended similarly to supplement and
confirm the general picture of financial soundness painted by the
satisfaction of the credit report test. These two requirements would be
that the business have no debt service problems and be current with its
pension plan contributions. More specifically:
For the past two years, the business would have to have
not met the criteria for an event of default with respect to a loan
with an outstanding balance of $10 million or more, regardless of
whether the default was cured or if the lender entered into a
forbearance agreement or waived the default. Defaults on credit
agreements suggest the business may be underperforming and at greater
risk of not meeting its debt obligations.
For the past two years, the business would have to have no
missed pension contributions, other than quarterly contributions for
which reporting is waived. Like the debt service requirement, this
criterion addresses the likelihood that the business will reliably fund
its pension plans.

[[Page 20045]]

Because of the novelty of the sponsor financial soundness standard
and in the spirit of E.O. 13563's call for greater public participation
in rulemaking, PBGC specifically invites public comment on the new
risk-based financial soundness safe harbor for plan sponsors, as well
as suggestions from the public for other tests or combinations of tests
on which the sponsor financial soundness safe harbor might be based.
PBGC seeks answers to the questions listed under Public Participation
below and suggestions for alternative approaches to determining
financial soundness based on widely-available and accepted financial
standards.

Financial Soundness Safe Harbor for Plans

Most of the commenters opposed the elimination from the reportable
events regulation of automatic reporting waivers based on plan funding,
as proposed in 2009. PBGC now proposes to retain plan funding as a
basis for relief from filing requirements for the same five events as
the sponsor financial soundness safe harbor discussed above, by
providing new ``safe harbors'' based on plan financial soundness. The
standard of financial soundness for these new safe harbors would be a
plan's funding status. A special rule would accommodate the needs of
small plans in determining funding status.
The safe harbors would be less complex than the current funding-
based waivers. The current regulation provides funding-based waivers
with several different thresholds--for example, waivers are available
where a plan pays no variable-rate premium,\17\ has less than $1
million in unfunded vested benefits, or is 80 percent funded for vested
benefits. Some waivers are based on a combination of a funding
criterion and a non-funding criterion--for example, reporting of a
controlled group change event is waived where a plan is 80 percent
funded and the plan sponsor is a public company. Different waiver
criteria or combinations of criteria apply to different events. PBGC's
proposed safe harbors for financially sound plans would involve just
two alternative tests, which would be the same for all events covered
by the safe harbors.
---------------------------------------------------------------------------

\17\ In general, the variable-rate premium is based on unfunded
vested benefits. However, in some cases no variable-rate premium
might be owed because of an exemption. For example, before 2008,
ERISA provided an exemption from the variable-rate premium for a
plan at the ``full-funding limit,'' even if the plan had unfunded
vested benefits. The exemption was removed by PPA 2006.
---------------------------------------------------------------------------

Both tests (like most of the current funding-based waiver tests)
would be based on plan funding level, which is a comparison of assets
to liabilities. Determining liabilities--calculating a present value
for the obligation to pay benefits for years into the future--requires
that actuarial assumptions be made about such things as the rate of
return on investments, when participants are likely to retire, and how
long they are likely to live. The actuarial assumptions used, and thus
the present value arrived at, may differ significantly depending on
whether the plan is considered ``ongoing''--that is, expected to
continue in operation indefinitely--or terminating. For example,
assumptions about when participants will retire would be different for
an ongoing plan than a terminating plan; in a terminating plan,
participants generally retire earlier and may receive early retirement
subsidies. Liabilities--the present value of future benefits--are
typically higher on termination assumptions than on ongoing
assumptions, and thus, for a given amount of assets, a plan's
termination-basis funding percentage is typically lower than its
funding percentage on an ongoing basis.
From PBGC's perspective, it is more appropriate to measure plan
funding levels using termination-basis assumptions than ongoing-plan
assumptions because termination is what brings a plan under PBGC
administration. In the context of the pension insurance system, a
plan's funding level on a termination basis provides the better measure
of exposure--that is, the magnitude of the financial impact PBGC and
participants would suffer if the plan then (or soon thereafter)
terminated. But from a plan perspective, funding on an ongoing basis is
the more common measure. Variable-rate premiums, required
contributions, benefit restrictions, and annual funding notices are all
based on ongoing-plan calculations. Unless filing is required under
ERISA section 4010 (dealing with annual financial and actuarial
information reporting for controlled groups with large underfunding),
plans typically do not calculate funding on a termination basis. PBGC
considers it desirable to adopt a funding measure that links with
calculations that plans already make.
The funding-based waivers in the existing regulation are generally
tied to variable-rate premium computations,\18\ which use ongoing-plan
assumptions. Under the current regulation, plans that are funded for 80
percent of premium liability qualify for reporting waivers for several
reportable events. PBGC has found this test to be an inadequate
threshold measure, because premium liability is significantly lower
than termination liability, so that a plan that is 80 percent funded on
a premium basis is likely to be much more significantly underfunded on
a termination basis. In developing the revised plan funding safe harbor
thresholds, PBGC reviewed plans with at least 100 participants that
PBGC trusteed in fiscal years 2009 and 2010 and through April of fiscal
year 2011 and compared the funded percentage at the date of plan
termination (DOPT) measured on a termination basis to the VRP funded
percentage for the plan year before the year in which DOPT
occurred.\19\ This analysis showed that the average termination funded
status at DOPT was 54 percent and the average VRP funded status for the
year before DOPT was 84 percent. The analysis also showed great
variability of funded status among the plans, and PBGC found no direct
correlation between the two funding measures.
---------------------------------------------------------------------------

\18\ The sole exception is a waiver for the benefit liability
transfer event, which applies if (among other things) the transferor
and transferee plans are fully funded using the computation methods
for calculating employer liability for terminated plans.
\19\ Some 134 plans fall into this category, but 17 were
excluded because of incomplete or questionable data.
---------------------------------------------------------------------------

If a plan is fully funded on a termination basis, on the other
hand, any risk associated with a reportable event can reasonably be
ignored because the exposure can reasonably be considered to be zero.
PBGC therefore proposes to provide a safe harbor from reporting for
most of the events to which funding-based waivers now apply \20\ if the
plan involved is fully funded on a termination basis on the last day of
the plan year preceding the event year. But since funding on a
termination basis is not commonly calculated for most plans--and since
PBGC wants to provide another way to qualify for the safe harbor that
is more accessible and yet provides a reasonably low exposure when
compared to a termination-basis measurement--PBGC is also proposing to
extend the safe harbor treatment to any case where the plan involved is
120 percent funded on

[[Page 20046]]

a premium basis for the plan year preceding the event year.\21\
---------------------------------------------------------------------------

\20\ As discussed above under Automatic waivers and extensions--
overview, PBGC proposes to exclude the liquidation and loan default
events from the funding-based waiver because those two events imply
sponsor financial difficulties that may affect plan contributions
and lead to a decline in funding level.
\21\ Variable-rate premium (``VRP'') funding information for a
plan year is generally unavailable until the latter part of the year
or (for many small plans) the early part of the following year. Thus
it is more feasible to base the safe harbor test on premium
information for the year before the event year. One of the reasons
PBGC chose the ratio of assets to liabilities calculated according
to premium rules as the standard for the funding-based safe harbor,
rather than the vested portion of the funding target attainment
percentage (``FTAP'') defined in section 430(d)(2) of the Internal
Revenue Code, is that the FTAP is not reported (and may not be
calculated) until a year later than the VRP. Another reason is that
the VRP is determined using current market value of assets, whereas
the FTAP often reflects an actuarially smoothed assets figure.
---------------------------------------------------------------------------

The 20-percent cushion is needed to help compensate for several
differences between the termination-basis funding level and the VRP-
basis funding level. First, the VRP funding level is to be measured in
general one year earlier than the termination funding level.\22\ The
lapse of a year raises the risk that funding will deteriorate between
the measurement date and the event date. Second, the VRP funded
percentage is calculated with ongoing-plan assumptions, which (as
discussed above) generally yield higher funding percentages than
termination-basis assumptions. Third, premium liability reflects only
vested benefits, whereas termination liability is based on all
benefits.\23\
---------------------------------------------------------------------------

\22\ For some small plans, premium funding is computed later in
the premium payment year and thus nearer (or on) the proposed date
for determining termination-basis funding.
\23\ PBGC's obligation to pay non-vested benefits is conditioned
on the availability of funds from plan assets or recoveries of
employer liability for plan underfunding.
---------------------------------------------------------------------------

As noted above, PBGC data indicate that funded status on a
termination basis in the recent past was about 30 percentage points
lower than the prior year's VRP funded status. Thus, while a 20-percent
VRP cushion will be in some cases more and in others less than enough
to reduce exposure to the same near-zero level as full funding on a
termination basis, it should overall give an acceptable result for
purposes of this safe harbor.
One difficulty with tying the safe harbor to the prior year's
premium calculations is that a small plan's premium calculations may be
as of a date as late as the last day of the year. For this reason, the
premium filing due date for plans with fewer than 100 participants is
four months after the end of the premium payment year. To address this
situation, PBGC proposes to give a filing extension, in cases where the
plan is small, until one month after the prior year's premium filing
due date (i.e., five months after the end of the prior year). For a
small calendar-year plan, this would mean that for the five reportable
events subject to the proposed funding-based safe harbor, the notice
date for an event that occurred from January 1st through May 1st would
be May 31st.\24\
---------------------------------------------------------------------------

\24\ No such extension would be needed for plans with 100 or
more participants. Such plans calculate premiums as of the first day
of the plan year and file premium declarations well before the end
of the plan year. Thus, for example, a calendar year plan should
know by October 15, 2013, whether it qualified for the premium-based
funding safe harbor for events in 2014.
---------------------------------------------------------------------------

The corresponding extension under the current reportable events
regulation is available only if the plan would have qualified for the
funding-based waiver for the preceding year. The proposed rule omits
this qualification. Where an event subject to the safe harbor involves
a small plan that does not qualify for the safe harbor, therefore, PBGC
would get notice of the event as much as three months later than the
generally applicable deadline. This delay might significantly impair
PBGC's administration of Title IV of ERISA for such plans. On the other
hand, an unconditional extension is simpler, and PBGC prefers that the
relief provided by this small-plan extension not be diluted with
complexity. Considering the lower exposure typically associated with
small plans, PBGC is proposing to accept the (probably modest)
impairment of its enforcement function in order to make compliance
easier for such plans.

Other Safe Harbor Proposals

Alternatively or in addition to the safe harbor proposals described
above, PBGC is inviting the public to propose variant safe harbors that
build on the same risk-related concepts by altering the mix and/or
relative stringency of the constituent tests of the sponsor safe harbor
or combining tests from the sponsor and plan safe harbors. Ideally,
proposals would reduce reporting burden for plans and sponsors for
which reportable events most likely do not pose risks for the pension
insurance program and thus focus reporting on higher-risk events. (See
Public Participation below.)

Small-Plan Waivers

Rather than eliminating the small-plan waiver for active
participant reductions (as it proposed in 2009), PBGC now proposes to
retain a modified version of the waiver and to make it applicable to
more events. Some commenters expressed concern about the adverse effect
on small plans of eliminating waivers and extensions for reporting
active participant reductions, pointing out that loss of a handful of
employees as a result of normal turnover in a small company could cross
the reporting threshold but be unrelated to financial distress.
As noted in the preamble to the 2009 proposed rule, PBGC data
suggest that in nearly a quarter of small-plan terminations, the small-
plan reporting waiver has prevented PBGC from learning about problems
that might have been resolved through early outreach to plan sponsors,
avoiding termination or reducing underfunding. Information from other
sources (for example, Form 5500) is typically neither as detailed nor
as timely. On the other hand, PBGC can get such information without
imposing any additional burden on plans and sponsors. Weighing the
disadvantages of relying on these other sources of information against
the challenges faced by small plans and their sponsors in reporting
active participant reduction events, PBGC is now proposing to provide a
waiver for these events like the existing small-plan waiver, except
that, for simplicity, small-plan status would be determined in the same
way as for purposes of the premium filing rules.
In addition, PBGC proposes to extend the small-plan waiver to three
other events: controlled group changes, benefit liability transfers,
and extraordinary dividends. Like active participant reductions, these
events tend to be less serious than the events for which the safe
harbors are unavailable. Furthermore, small plan sponsors typically are
not members of controlled groups and generally do not have multiple
lines of business. Thus stock or asset spinoffs (which could result in
benefit liability transfers) and controlled group changes in general
are infrequently experienced by such plans and sponsors. And
extraordinary dividend events are relatively unusual for sponsors of
plans of any size. In contrast, the burden on small plans and sponsors
of monitoring for and reporting these events is relatively significant.
Weighing that burden against the number and significance of the
resultant reports, PBGC has concluded that small-plan waivers for these
events seem appropriate.

Foreign-Entity and De Minimis Waivers

The current reportable events regulation provides reporting waivers
for several events where the entity or entities involved in the event
are foreign entities or represent a de minimis percentage of a
controlled group.\25\

[[Page 20047]]

PBGC's 2009 proposal preserved most de minimis waivers in the existing
regulation but eliminated all foreign-entity waivers, because an
increasingly large part of PBGC's insurance supervision and compliance
cases deal with foreign controlled group members--a logical consequence
of the globalization of the economy. All members of a plan's controlled
group, whether domestic or foreign, are liable for plan underfunding.
PBGC now proposes to provide both de minimis and foreign-entity waivers
in tandem for five reportable events.
---------------------------------------------------------------------------

\25\ Both types of waiver apply to controlled group change,
liquidation, and extraordinary dividend; the foreign entity waiver
also applies to loan default and bankruptcy. The foreign entity
waiver is limited to entities that are not direct or indirect
parents of contributing sponsors, and discussion of the foreign-
entity waiver in this preamble should be understood to incorporate
this limitation.
---------------------------------------------------------------------------

A number of commenters made the point that it can be difficult for
a plan to keep track of events involving foreign controlled group
members and argued that events involving foreign entities are too
remote to warrant reporting to PBGC. Particular events mentioned in
this regard included loan defaults, bankruptcies, controlled group
changes, and extraordinary dividends. Commenters also expressed the
view that PBGC's processing burden for reports on events involving
foreign entities would be disproportionate to the value of the
information in the reports, with the implication that requiring such
reports would result in a misallocation of PBGC's resources.
PBGC is persuaded that the challenges a plan or sponsor faces in
keeping informed about events involving foreign members of the plan's
controlled group may prove more burdensome than is currently required
to protect the pension insurance system. Furthermore, multinational
controlled groups that report publicly tend to be tracked by PBGC's
Early Warning Program, which, while it is no substitute for reportable
event reports, does give PBGC some idea of the status of such groups.
PBGC has concluded that these considerations constitute an appropriate
basis for providing relief from reporting, even though that means it
must forgo the receipt of useful information that may be important to
its monitoring and enforcement activities.
Accordingly, PBGC now proposes to preserve all post-event foreign-
entity reporting waivers in the existing regulation. As with all
regulatory provisions, PBGC will monitor developments in this area and
may revisit this position if experience indicates a need for stronger
monitoring mechanisms. In addition, PBGC now proposes to retain all
post-event reporting waivers for de minimis transactions \26\ and to
add de minimis waivers for two events--loan defaults and non-bankruptcy
insolvency \27\--that do not have such waivers under the existing
regulation. Thus, this pair of waivers would apply to five events. For
liquidation, loan default, and insolvency, the de minimis waiver would
be available only if the entity involved in the event was not a
contributing sponsor. The waiver would use the ten percent de minimis
standard, even for extraordinary dividends and stock redemptions under
Sec. 4043.31, for which the existing de minimis waiver is limited to a
five percent segment of a controlled group.
---------------------------------------------------------------------------

\26\ PBGC proposes to eliminate one of three alternative tests
for the annual operating income criterion that must be met for de
minimis status: that such income not exceed 5 percent of the first
$200 million in controlled group net tangible assets. PBGC believes
that the other two alternatives provide a sufficient threshold. The
change would apply to both post-event and advance notices.
\27\ PBGC can obtain bankruptcy filings directly, so a separate
PBGC report is unnecessary. For this reason, PBGC proposes to revise
the reportable event covering bankruptcy and similar settlements to
limit it to non-bankruptcy events only. See Bankruptcy and
Insolvency below.
---------------------------------------------------------------------------

Effect of Proposal on Loan Agreements

Some commenters said that, for plan sponsors with loan agreements,
the increased reporting resulting from the elimination of waivers could
give rise to events of default, a view that PBGC has been unable to
substantiate. The commenters, who also said that requiring more
reporting could preclude future loans or provide lenders with a pretext
for renegotiating loan terms, did not provide any actual loan agreement
provisions to support these contentions; to clarify its understanding
of the commenters' concerns, PBGC reviewed 25 credit agreements from 20
distressed and/or small public companies.\28\ PBGC reasoned that
lenders to distressed companies would tend to be particularly sensitive
to reportable events and that this heightened sensitivity would be
reflected in loan agreement provisions of the kind that commenters
expressed concern about. The smaller reporting companies provided a
proxy for non-public companies (for which loan agreements are generally
not made public).
---------------------------------------------------------------------------

\28\ PBGC obtained the loan agreements from the Web site of the
Securities and Exchange Commission (http://www.sec.gov/). The companies with
distressed plans were selected from an online business article
titled ``40 Companies Sitting on Pension Time Bombs,'' posted at
http://moneycentral.msn.com/content/P87329.asp, on August 25, 2004.
PBGC found no relationship between the assumed financial straits of
the companies' plans and any specific loan agreement provisions that
might have reflected lenders' sensitivity to the significance of
reportable events. The limited scope of this study reflects the
practical difficulty of obtaining and reviewing a statistically
significant sample of loan agreements (the vast majority of which
are not publicly available) involving sponsors of the more than
27,500 single-employer plans covered by Title IV of ERISA. PBGC
nonetheless believes that the loan agreements that were reviewed do
offer some insight into loan agreement drafting practices that is
relevant to the concerns expressed by commenters.
---------------------------------------------------------------------------

An event of default would not be automatically triggered
by a reportable event in any of the 25 agreements reviewed, and 17 of
the agreements would not have been affected at all by the changes in
the 2009 proposed rule. For each of the eight agreements with event-of-
default provisions that would have been affected by the 2009 proposal,
an event of default would occur only when a reportable event was
accompanied by some other significant condition, such as incurring
actual liability, creation of grounds for termination, or the
occurrence of a material adverse effect.
Nine of the agreements PBGC reviewed had no requirement
that the borrower notify the lender of a reportable event. Six
agreements required notice only if some other condition was present (as
for events of default). Five defined ``reportable event'' without
regard to whether reporting was waived.
Fewer than half of the agreements surveyed required
representations or warranties about reportable events as a condition to
future advances.
The results of examining these loan agreements are consistent with
PBGC's experience from reviewing loan documents as part of its direct
monitoring of corporate events and transactions of plan sponsors. PBGC
has been unable to find a record of any case where the filing of a
reportable event notice has resulted in a default under a credit
agreement. These observations suggest that the elimination of reporting
waivers would not adversely affect most plan sponsors with loan
agreements.
Because PBGC's current proposal provides more waivers than the 2009
proposal, commenters' concerns in this area should be lessened. And
PBGC's proposed deferral of the applicability date for the final
regulation should give plan sponsors time to consult with loan
providers about appropriate amendments to loan agreements. However, if
this concern is raised in a comment about the current proposal, PBGC
requests that the commenter document the basis for the comment by
providing copies of relevant loan agreements and information about the
number and circumstances of plan sponsors that have experienced default
or suffered other adverse consequences

[[Page 20048]]

related to loan agreements as a result of a reportable event.

Advance Reporting Threshold

In general, reportable events must be reported to PBGC within 30
days after they occur. But section 4043(b) of ERISA requires advance
reporting by a contributing sponsor for certain reportable events if a
``threshold test'' is met, unless the contributing sponsor or
controlled group member to which an event relates is a public company.
The advance reporting threshold test is based on the aggregate funding
level of plans maintained by the contributing sponsor and members of
the contributing sponsor's controlled group. The funding level criteria
are expressed by reference to calculated values that are used to
determine VRPs under section 4006 of ERISA. The reportable events
regulation ties the statutory threshold test to the related provisions
of the premium rates regulation.
The advance reporting threshold test in ERISA section 4043(b)(1)
provides that the advance reporting requirements of section 4043(b) are
to be applicable to a contributing sponsor if, as of the close of the
preceding plan year--
The aggregate unfunded vested benefits (UVBs) (as
determined under ERISA section 4006(a)(3)(E)(iii)) of plans subject to
title IV of ERISA which are maintained by such sponsor and members of
such sponsor's controlled groups (disregarding plans with no unfunded
vested benefits) exceed $50,000,000, and
The funded vested benefit percentage for such plans is
less than 90 percent.

For this purpose, the funded vested benefit percentage means the
percentage which the aggregate value of the assets of such plans bears
to the aggregate vested benefits of such plans (determined in
accordance with ERISA section 4006(a)(3)(E)(iii)).
PPA 2006 revised ERISA section 4006(a)(3)(E)(iii) to say that UVBs
means, for a plan year, the excess (if any) of the funding target of
the plan as determined under ERISA section 303(d) for the plan year by
only taking into account vested benefits and by using the interest rate
described in ERISA section 4006(a)(3)(E)(iv), over the fair market
value of plan assets for the plan year which are held by the plan on
the valuation date.
The section 303 of ERISA referred to here is a completely new
section added by PPA 2006.\29\ Under new ERISA section 303(g)(1), the
value of plan assets and the funding target of a plan for a plan year
are determined as of the valuation date of the plan for the plan year.
Under new ERISA section 303(g)(2), the valuation date for virtually all
plans subject to advance reporting under ERISA section 4043 will be the
first day of the plan year. Thus, while ERISA section 4043(b)(1) refers
to UVBs, assets, and vested benefits ``as of the close of the preceding
plan year,'' in nearly all cases these quantities must, with respect to
plan years beginning after 2007, be calculated as of the beginning of a
plan year. This creates an ambiguity with regard to the date as of
which the advance reporting threshold test is to be applied.
---------------------------------------------------------------------------

\29\ Section 303 of ERISA corresponds to section 430 of the
Code.
---------------------------------------------------------------------------

This proposed rule, like the prior proposal, would resolve this
ambiguity by requiring that the advance reporting threshold test be
applied as of the valuation date for ``the preceding plan year.'' That
is the same date as of which UVBs, assets, and vested benefits must be
determined for premium purposes for the preceding plan year under the
premium rates regulation as amended by PBGC's final rule on VRPs under
PPA 2006. Measuring these quantities as of that date for purposes of
the advanced reporting threshold test will thus be less burdensome than
requiring that separate computations be made as of the close of that
year. It will also enable a plan to determine before a reportable event
occurs (and before an advance report is due) whether it is subject to
the advance reporting requirement.
The new proposed rule (like the prior proposal) would make a number
of editorial changes to the advance reporting threshold provisions with
a view to improving clarity and simplicity as well as accommodating the
changes discussed above. It would also provide that the plans whose
funding status is taken into account in applying the threshold test are
determined as of the due date for the report, and that the ``public
company'' status of a contributing sponsor or controlled group member
to which the event relates is also determined as of that date. Although
the existing regulation does not explicitly address this issue, PBGC
believes it is implicit that these determinations be current. Requiring
that they be made as of the due date for the report ensures currency.

Active Participant Reduction

In general, a reportable active participant reduction occurs when
the number of active participants is reduced below 80 percent of the
number at the beginning of the year or below 75 percent of the number
at the beginning of the prior year.
Several commenters remarked that a loss of more than 20 percent of
active participants within a year (or more than 25 percent within two
years) may result from gradual attrition and that if no waiver is
applicable, constant vigilance is required to catch the moment when the
threshold for reporting is crossed. Such vigilance could be burdensome
for a large plan and might simply not be exercised for a small one.
PBGC is sympathetic to this issue and is proposing to modify the
definition of the active participant reduction event to address it.
Under the proposed change, a reportable event would occur during
the plan year only when the reporting threshold was crossed either
within a single 30-day period or as a result of a single cause like the
discontinuance of an operation, a natural disaster, a reorganization, a
mass layoff, or an early retirement incentive program. Such
circumstances should be easy to spot without exercising unusual
vigilance. To capture events arising from gradual attrition, the
proposed regulation would require that plans measure active participant
reductions at the end of each year and report if the threshold has been
crossed. Fluctuations within the year would be ignored. If the active
participant count at the end of the year were more than 20 percent
below the count at the beginning of the year, or more than 25 percent
below the count at the beginning of the prior year, reporting would be
required. To provide time to count active participants as of the end of
the year, the notice date for attrition events would be extended to 120
days after year end, by which time PBGC expects many or most plans to
have a final count.\30\
---------------------------------------------------------------------------

\30\ In most situations, a rough estimate will be sufficient to
determine if the threshold has been crossed.
---------------------------------------------------------------------------

For convenience, if a plan counted participants, for purposes of
the following year's premiums, as of a day other than the last day of
the year for which active participant loss was being measured (such as
where there was a qualifying merger or spinoff), the plan could use the
active participant count on that other day as the year-end count for
determining whether active participant attrition had exceeded the
threshold. However, the reduction in active participants would still be
considered to have occurred at the end of the measurement year.
Because this change would render unnecessary the waiver in the 2009
proposed rule for a report within one

[[Page 20049]]

year of a prior report, that provision is absent from the current
proposal. However, the changes now being proposed include the provision
from 2009 that dealt with substantial cessations of operations under
ERISA section 4062(e) and substantial employer withdrawals under ERISA
section 4063(a). Events covered by section 4062(e) or 4063(a) must be
reported to PBGC under section 4063(a). With a view to avoiding
duplicative reporting, this proposal, like the 2009 proposal, would
limit the active participant reduction event by excluding from
consideration--in determining whether a reportable active-participant-
reduction event has occurred--active participant reductions to the
extent that they (1) fall within the provisions of section 4062(e) or
4063(a) and (2) are timely reported to PBGC as required under ERISA
section 4063(a).
One commenter expressed satisfaction with this provision; two
others raised issues about the interplay of this event and a section
4062(e) event, suggesting, for example, that there was opportunity for
confusion between the 30-day notice requirement under section 4043 and
the 60-day notice requirement for 4062(e) events. PBGC does not see how
this provision would exacerbate any such problems (and indeed believes
that it would tend to ameliorate them).\31\
---------------------------------------------------------------------------

\31\ On August 10, 2010 (at 75 FR 48283), PBGC published a
proposed rule to provide guidance on the applicability and
enforcement of ERISA section 4062(e). PBGC is currently giving
careful consideration to the comments on that proposed rule.
---------------------------------------------------------------------------

Finally, one commenter requested clarification that participants do
not cease to be active if they leave employment with one member of a
plan's controlled group to become employed by another controlled group
member. PBGC proposes to add a provision to make this point clear.

Missed Contributions

A missed contribution event occurs when a plan sponsor fails to
make any required plan contribution by its due date.
PBGC proposes (as it did in 2009) to clarify the language in Sec.
4043.25, dealing with the reportable event of failure to make required
contributions. This reportable event does not apply only to
contributions required by statute (including quarterly contributions
under ERISA section 303(j)(3) and Code section 430(j)(3), liquidity
shortfall contributions under ERISA section 303(j)(4) and Code section
430(j)(4), and contributions to amortize funding waivers under ERISA
section 303(e) and Code section 430(e)). It also applies to
contributions required as a condition of a funding waiver that do not
fall within the statutory provisions on waiver amortization charges.
The proposed revision would make this point clearer.\32\
---------------------------------------------------------------------------

\32\ Such ``non-statutory'' contributions are not taken into
account under ERISA section 303(k) and Code section 430(k), dealing
with liens that arise because of large missed contributions, and are
therefore disregarded under Sec. 4043.81, which implements those
provisions. However, violating the conditions of a funding waiver
typically means that contributions that were waived become
retroactively due and unpaid and are counted for purposes of Sec.
4043.81.
---------------------------------------------------------------------------

The 2009 proposed rule called for eliminating all reporting waivers
for missed contributions. PBGC now proposes to provide waivers for this
event.
Some commenters urged PBGC to retain the grace-period waiver in the
current regulation (where payment is made within 30 days after the due
date). Commenters pointed out that contributions are sometimes missed
through administrative error and that the availability of the grace-
period waiver gives sponsors an incentive to make up missed
contributions. Commenters also suggested that because new rules require
a sponsor to elect to apply a funding balance towards a quarterly
installment, a late installment often results from a late election due
to administrative error.
PBGC is persuaded that missed contributions that are made up within
30 days do not generally pose excessive risk to the pension insurance
system. Form 5500 filings provide another (albeit somewhat later)
source of information about late contributions, and there is an
independent reporting requirement for large cumulative missed
contributions under ERISA section 303(k)(4) and Code section 430(k)(4)
(implemented by Sec. 4043.81 of the reportable events regulation).
Accordingly, the current proposal would restore the grace-period waiver
in the existing regulation that the 2009 proposal would have
eliminated.
Commenters also urged PBGC to provide small-plan missed-quarterly
reporting relief like that which has for years been provided by
Technical Update, and PBGC proposes to do so. Commenters said that
small plans often forgo or delay quarterly contributions to
strategically manage cash flow or until valuations are completed (a
practice that does not accord with the law and that PBGC does not
condone). Commenters suggested that late quarterly installments often
do not signal a plan sponsor's actual financial distress or a plan's
imminent termination.
PBGC believes that a small-plan missed-quarterly waiver can strike
an effective balance between PBGC's need for information on potentially
troubled plans and the reporting challenges faced by small entities.
Furthermore, since annual reports on Form 5500 are now filed
electronically, PBGC believes that contribution information on Schedule
SB to Form 5500 can help round out the information submitted under the
reportable events regulation. Thus, PBGC is proposing to add to the
regulation a simplified small-plan missed-quarterly waiver to replace
the Technical Update waivers. The codified waiver would apply to any
failure to make a quarterly contribution to a plan considered small for
purposes of the premium filing rules (i.e., having fewer than 100
participants; the waiver under Technical Update 11-1 applies only to
plans with fewer than 25 participants). Unlike the grace-period waiver,
the small-plan waiver would apply only to quarterly contributions.

Inability To Pay Benefits When Due

In general, a reportable event occurs when a plan fails to make a
benefit payment timely or when a plan's liquid assets fall below the
level needed for paying benefits for six months.
As in 2009, PBGC proposes to clarify the large-plan waiver of the
reporting requirement for inability to pay benefits when due. This
waiver provision reflects PBGC's judgment that it need not require
reporting of this event by larger plans that are subject to the
``liquidity shortfall'' rules imposing more stringent contribution
requirements where liquid assets are insufficient to cover anticipated
disbursement requirements. For these larger plans, (1) if the
contributions required by the liquidity shortfall rules are made, the
inability to pay benefits when due is resolved, and (2) if the required
contributions are not made, that fact is reportable to PBGC as a
failure to make required contributions. Accordingly, this provision
waives reporting unless the plan is exempt from the liquidity shortfall
provisions.

Distribution to Substantial Owner

Distributions to substantial owners must generally be reported if
they exceed $10,000 in a year unless the plan is fully funded for
nonforfeitable benefits.
One commenter on the 2009 proposal argued that distributions to
substantial owners tend to be thought of as routine and may ``creep''
beyond the $10,000 reporting threshold unremarked and unreported. In
response, PBGC proposes to make two changes to the regulation.

[[Page 20050]]

First, PBGC proposes to add to the description of this event a
provision limiting the event to circumstances where the distributions
to one substantial owner exceed one percent of plan assets or the
distributions to all substantial owners exceed five percent of plan
assets. (The one-percent provision echoes a waiver for this event that
is in the existing regulation but that PBGC proposes to eliminate.) In
either case, assets would be end-of-year current value of assets as
required to be reported on Schedule H or I to Form 5500, and the one
percent or five percent threshold would have to be exceeded for each of
the two prior years. By requiring notices only for larger distributions
that should be noticeable and thus not challenging to detect and
report, PBGC believes that it would strike an acceptable balance
between the burden of reporting and PBGC's need for timely information
about such events.
In addition, PBGC proposes to limit reporting for distributions in
the form of annuities to one notice: The first notice required under
the normal reporting rules would be the only notice required so long as
the annuity did not increase. Once notified that an annuity was being
paid to a substantial owner, PBGC would need no further notices that
the annuity was continuing to be paid.

Controlled Group Change

A reportable event occurs for a plan when there is a transaction
that results, or will result, in one or more persons' ceasing to be
members of the plan's controlled group. For this purpose, the term
``transaction'' includes a written or unwritten legally binding
agreement to transfer ownership or an actual transfer or change of
ownership. However, a transaction is not reportable if it will result
solely in a reorganization involving a mere change in identity, form,
or place of organization, however effected.
One commenter asked PBGC to clarify that a reportable event does
not occur when there is a reorganization within an employer's
controlled group in which a member ceases to exist because it is merged
into another member. The example in Sec. 4043.29(e)(3) of the current
regulation indicates that such a merger is a reportable event because
the disappearing member has ceased to be a member of the controlled
group. After consideration, PBGC has decided to delete this example
from the proposed rule to clarify that such a change solely within a
controlled group is not a reportable event for purposes of the
regulation.
PBGC has also from time to time received requests to clarify
whether an agreement that is not to be effective unless some condition
is met, such as the obtaining of some governmental approval or the
occurrence of some other event, is nonetheless legally binding within
the meaning of the regulation. The proposed rule would provide that
whether an agreement is legally binding is to be determined without
reference to any conditions in the agreement. PBGC's administration of
the pension insurance system may be impaired if reporting is not
required until all conditions are met. As for all reportable events,
case-by-case waivers may be granted.

Extraordinary Dividends

An extraordinary dividend or stock redemption occurs when a member
of a plan's controlled group declares a distribution (a dividend or
stock redemption) that alone or in combination with previous
distributions exceeds a level specified in the regulation. The current
regulation specifies different threshold levels for cash and non-cash
distributions and provides a method for aggregating cash and non-cash
distributions in order to determine whether in combination they exceed
the reporting threshold. Cash distributions must be tested over both a
one-year and a four-year period, non-cash distributions only over a
one-year period. The cash distribution threshold is 100 percent of net
income; the non-cash distribution threshold is ten percent of net
assets. Distributions within a controlled group are treated the same as
any other distributions.
PBGC proposes to simplify the description of this event. The
simplified event would occur when a controlled group member declared a
dividend or redeemed its stock and the (cash or non-cash) distribution,
alone or together with other cash and non-cash distributions, exceeded
100 percent of net income for the prior fiscal year. Testing would be
over a one-year period only. The new formulation would eliminate much
of the computational detail that the existing regulation prescribes for
determining whether a reportable event has occurred by providing that
the computations be done in accordance with generally accepted
accounting principles. Distributions within a controlled group would be
disregarded.
Eliminating the four-year test for cash distributions would tend to
make more events of this kind reportable. Disregarding intra-group
distributions would have the opposite effect. The effect of using only
a net income figure as a threshold is harder to assess. But PBGC
expects the effects of all of these changes to be modest. And
elimination of much of the detail for combining the effects of cash and
non-cash distributions should reduce the administrative burden of
compliance with the requirement to report such events.

Transfer of Benefit Liabilities

Section 4043(c)(12) of ERISA requires reporting to PBGC when, in
any 12-month period, three percent or more of a plan's benefit
liabilities are transferred to a person outside the transferor plan's
controlled group or to a plan or plans maintained by a person or
persons outside the transferor plan's controlled group. Transfers of
benefit liabilities are of concern to PBGC because they may reduce the
transferor plan's funded percentage and because the transferee may not
be as financially healthy as the transferor.
The existing reportable events regulation does not make clear
whether the satisfaction of benefit liabilities through the payment of
a lump sum or the purchase of an irrevocable commitment to provide an
annuity constitutes a transfer of benefit liabilities for purposes of
this reporting requirement. PBGC has received inquiries seeking
clarification of this point and now proposes (as in 2009) to provide
that such cashouts and annuitizations do not constitute transfers of
benefit liabilities that must be reported under the regulation.
Section 436 of the Code and section 206(g) of ERISA (as added by
PPA 2006) prohibit or limit cashouts and annuitizations by
significantly underfunded plans. These provisions thus tend to prevent
cashouts and annuitizations that would most seriously reduce a
transferor plan's funded percentage. And since cashouts and
annuitizations satisfy benefit liabilities (rather than transferring
them to another plan), there is no concern about a transferee plan's
financial health.
Section 4043.32(a) of the existing reportable events regulation
requires post-event reporting not only for a plan that transfers
benefit liabilities, but also for every other plan maintained by a
member of the transferor plan's controlled group. However, existing
Sec. 4043.32(d) provides a waiver that in effect limits the post-event
reporting obligation to the transferor plan. Existing Sec. 4043.65
(dealing with advance reporting of benefit liability transfers) does
not provide a similar waiver.
PBGC has concluded--as the preamble to the 2009 proposed rule
indicated--that it is unnecessary to

[[Page 20051]]

extend the advance reporting requirement for benefit liability
transfers beyond the transferor plan. PBGC thus proposes to revise
Sec. 4043.32(a) to narrow the reporting requirement to the transferor
plan; to remove Sec. 4043.32(d) (which would be redundant); and to
revise Sec. 4043.65(a) to remove the provision requiring that Sec.
4043.32(d) be disregarded. The effect of these changes would be to
leave the post-event notice requirement unchanged and to limit the
advance notice requirement to the transferor plan.

Loan Default

Under the existing regulation, a loan default reportable event
occurs when a loan payment is more than 30 days late (10 days in the
case of advance reporting), when the lender accelerates the loan, or
when there is a written notice of default based on a drop in cash
reserves, an unusual or catastrophic event, or the debtor's persistent
failure to meet agreed-on performance levels.
PBGC believes that the significance of loan defaults is so great
that reporting should not be restricted to the current list of
defaults. Rather, PBGC believes that any default on a loan of $10
million or more--even a default on a loan within a controlled group--
should be reported unless a reportable event waiver applies.
Accordingly, PBGC proposes to revise the definition of the loan default
event so that it covers acceleration by the lender and default of any
kind by the debtor.
In addition, PBGC proposes to expand this event to encompass any
amendment or waiver by a lender of any loan agreement covenant for the
purpose of avoiding a default. PBGC believes that a debtor can often
anticipate a default situation, and that when it does, it may typically
initiate discussions with its lender with a view to obtaining the
lender's waiver of the covenant it expects to breach or an amendment of
the loan agreement to obviate the default. In PBGC's view, such actions
may reflect financial difficulty and thus, like actual defaults, pose
serious challenges for the pension insurance system. These changes
would apply for both post-event notices and advance notices.
PBGC believes that the treatment of loan defaults under the
proposed rule is comparable to the treatment that would be experienced
with a typical creditor. PBGC seeks the views of the public as to
whether that belief is well-founded. PBGC further seeks public comment
as to how it might better approximate such a model in its treatment of
loan default events, whether there should be a materiality threshold
with respect to events of default, and whether there is a category of
``technical'' defaults that should not be reportable events.

Bankruptcy and Insolvency

The existing regulation defines the bankruptcy reportable event to
include bankruptcy under the Bankruptcy Code and any other similar
judicial or nonjudicial proceeding. Notice of bankruptcies under the
Bankruptcy Code can be (and routinely is) reliably obtained by other
means. Accordingly, PBGC proposes to limit the reporting requirement to
exclude bankruptcies under the Bankruptcy Code.

Advance-Notice Extensions

The current reportable events regulation provides extensions of the
advance-notice filing deadline for three events: funding waiver
requests, loan defaults, and bankruptcy/insolvency. The extension for
funding waiver requests avoids the need to give one government agency
(PBGC) advance notice of a filing with another government agency (IRS).
The extensions for notices of loan defaults and bankruptcies or
insolvencies accommodate situations where such events occur without the
debtors' advance knowledge.
In general, however, a debtor is aware well in advance that a loan
default or insolvency event is going to befall it, and indeed is
actively engaged in preparation for the event. PBGC thinks it not
unreasonable, therefore, that a debtor subject to advance reporting
should generally give the advance notice provided for in the statute.
Accordingly, PBGC proposes to eliminate reporting extensions for
advance notice of loan default and insolvency events, except for events
where insolvency proceedings are filed against a debtor by someone
outside the plan's controlled group. In such adversarial filing cases,
it is reasonable to expect that the debtor is unable to anticipate the
event and thus unable to report it in advance.
PBGC is aware that there may be loan defaults that (like
adversarial insolvency filings) can come as a surprise to the debtor,
making compliance with the advance notice requirement impossible.
However, since PBGC believes such loan defaults are very infrequent,
the proposed rule does not contain an automatic extension for such
situations. If inability to anticipate a loan default event were to
make it impossible to comply with the advance notice requirement, the
delinquent filer could seek a retroactive filing extension from PBGC
based on the facts and circumstances. (An extension may similarly be
requested if a filer learns of an impending event such a short time
before the advance notice deadline as to make timely filing difficult.)
PBGC specifically invites comment on whether this approach represents
an adequate solution to any problem of surprise loan defaults that may
exist.

Forms and Instructions

PBGC proposes to eliminate some of the documentation that must now
be submitted with notices of two reportable events, but to require that
filers submit with notices of most events some information not
currently called for. Because the additional information to be
submitted with notices is now typically requested by PBGC after notices
are reviewed, the proposed changes would not significantly impact
filers' total administrative burden.
PBGC also proposes, as it did in 2009, to make use of prescribed
reportable events forms mandatory and to eliminate from the regulation
the lists of information items that must be reported. PBGC anticipates
that as it gains experience with the new reporting requirements and
engages in further regulatory review, it may find it appropriate to
make changes in the information required to be submitted with
reportable events notices. In particular, resolution of uncertainties
about the operation of PPA 2006 provisions may call for changes in the
data submission requirements for failures to make required
contributions timely. Forms and instructions can be revised more
quickly than regulations can in response to new developments or
experience (and both processes are subject to public comment).
PBGC issues three reporting forms for use under the reportable
events regulation. Form 10 is for post-event reporting under subpart B
of the regulation; Form 10-Advance is for advance reporting under
subpart C of the regulation; and Form 200 is for reporting under
subpart D of the regulation. Failure to report is subject to penalties
under section 4071 of ERISA.
Under the existing regulation, however, use of PBGC forms for
reporting events under subparts B and C of the regulation is optional.
The data items in the forms do not correspond exactly with those in the
regulation, and the regulation recognizes that filers that use the
forms may report different information from those that do not use the
forms. PBGC believes that making use of prescribed reportable events
forms mandatory would promote greater uniformity in the reporting
process and attendant administrative simplicity for

[[Page 20052]]

PBGC. Eliminating lists of information items from the regulation would
mean that the information to be reported would be described in the
filing instructions only (rather than in both the filing instructions
and the regulation).

Mandatory Electronic Filing

PBGC encourages electronic filing under the existing regulation
\33\ and now proposes to make it mandatory. This proposal is part of
PBGC's ongoing implementation of the Government Paperwork Elimination
Act.
---------------------------------------------------------------------------

\33\ The existing regulation contains a ``partial electronic
filing'' provision under which a filing is considered timely made if
certain basic information (specified in PBGC's reporting
instructions) is submitted on time electronically and followed up
within one or two business days (depending on the type of report)
with the remaining required information. PBGC's mandatory electronic
filing proposal would make the ``partial electronic filing''
provision anachronistic, and it would be removed.
---------------------------------------------------------------------------

Electronic filing has become the norm for PBGC's regulated
community. Electronic filing is mandatory for reports under ERISA
section 4010 (starting with 2005 information years), PBGC premiums
(starting with 2007 plan years for all plans), and Form 5500 (starting
with 2009 plan years).
PBGC does not currently have a web-based filing application for
reportable events as it does for section 4010 or premium filings.
However, it has become common for documents to be created
electronically in a variety of digital formats (such as WPD, DOC, and
XLS) and easy to create electronic images (for example, in PDF format)
of documents that do not exist in electronic form. PBGC proposes that
filers be permitted to email filings using any one or more of a variety
of electronic formats that PBGC is capable of reading as provided in
the instructions on PBGC's Web site. (Forms 10 and 10-Advance do not
require signatures, and PBGC already accepts imaged signatures for Form
200 filings.) The current versions of PBGC Form 10, Form 10-Advance,
and Form 200 are already available in ``fillable'' format; in
connection with the change to electronic filing, new versions of these
forms will be available in ``fillable'' format to facilitate electronic
filing.
PBGC would be able to waive electronic filing for voluminous paper
documents to relieve filers of the need to scan them, pursuant to Sec.
4043.4(d) (case-by-case waivers).
PBGC would expect its reportable events e-filing methodology to
evolve as Internet capabilities and standards change, consistent with
resource effectiveness. Such developments would be reflected in PBGC's
reportable events e-filing instructions.
PBGC seeks public comment on its proposal to require electronic
filing. For example, PBGC would like to know whether there are
differences commenters might see between Form 5500 filings and premium
filings (which are submitted electronically) and reportable events
filings that would make the latter less suited to electronic filing.
PBGC would also like to know whether there are particular categories of
plans or sponsors that would find electronic filing sufficiently
difficult that PBGC should by regulation either exempt them from e-
filing (rather than just providing case-by-case exceptions) or defer
the applicability of mandatory e-filing to them (i.e., provide for
phase-in of the e-filing requirement, and if so, over what period of
time). Finally, PBGC seeks comment on e-filing methodology, such as the
convenience of submitting documents in the form of data rather than
images and the usefulness of pre-filled data fields. Commenters are
encouraged to describe actual rather than hypothetical circumstances
and to provide comparisons between the burdens that would be associated
with e-filing versus paper filing or with one e-filing method versus
another. This information will help PBGC evaluate both the
appropriateness of e-filing for reportable events in general and the
need for special rules to accommodate specific categories of filers.

Other Changes

PBGC's 2009 proposed rule on reportable events would have added two
new events to the reportable events regulation. One event would have
occurred when a plan's adjusted funding target attainment percentage
(AFTAP) was found or presumed to be less than 60 percent. The other
event would have occurred when a transfer of $10 million or more was
made to a plan's health benefits account under section 420(f) of the
Code (as added by PPA 2006) or when plan funding thereafter
deteriorated below a prescribed level. Commenters seemed generally
accepting of the appropriateness of the former event but questioned the
value to PBGC of the latter event. PBGC is not including either event
in this proposal. AFTAPs under 60 percent trigger significant
restrictions on plans that to some degree provide remediation that
serves the same kind of function as the action that PBGC might take
upon getting a low AFTAP notice. And PBGC has concluded that its need
for health benefit account notices is not great enough to make it
clearly appropriate to require them at this time.
PBGC recognizes that the changes made by PPA 2006 in the statutory
provisions dealing with missed contributions--which are reportable
under Sec. Sec. 4043.25 and 4043.81--affect the computation of
interest on missed contributions, a circumstance that in turn affects
the reporting requirements. This proposed rule includes no amendment to
the reportable events regulation dealing with such issues, but PBGC is
providing guidance on this subject in the filing instructions. The
guidance will be revised if and when necessary to take into account as
appropriate any relevant guidance from the Internal Revenue Service.
The proposed rule would clarify that if an event is subject to both
post-event and advance notice requirements, the notice filed first
satisfies both requirements. (In unusual circumstances, the post-event
notice required in connection with a transaction may be due before the
advance notice required in connection with the same transaction.)
To conform to the statute, the proposed rule would limit the
applicability of the confidentiality provisions in ERISA section
4043(f) to submissions under subparts B and C of the reportable events
regulation.
The proposed rule would make a number of editorial and clarifying
changes to part 4043 and would add definitional cross-references,
change statutory cross-references to track changes made by PPA 2006,
and update language to conform to usage in PPA 2006 and regulations and
reporting requirements thereunder.\34\ Where a defined term is used in
only one section of the regulation, the definition would be moved from
Sec. 4043.2 to the section where the term is used.
---------------------------------------------------------------------------

\34\ Section 4043.62(b)(1) of the existing regulation, headed
``Small plan,'' provides a waiver where a plan has 500 or fewer
participants. The premium payment regulation keys filing due dates
to whether a plan is small (fewer than 100 participants, mid-size
(100 or more but fewer than 500 participants), or large (500 or more
participants). In the interest of uniformity, PBGC proposes to
change Sec. 4043.62(b)(1) to provide a waiver where a plan has
fewer than 500 participants and to change the heading to read
``Small and mid-size plans.''
---------------------------------------------------------------------------

The proposed changes to the reportable events regulation make it
unnecessary to define a number of terms at the beginning of the
regulation. Accordingly, the definitions of ``fair market value of the
plan's assets,'' ``Form 5500 due date,'' ``public company,'' ``testing
date,'' ``ultimate parent,'' ``unfunded vested benefits,'' ``variable-
rate premium,'' and ``vested

[[Page 20053]]

benefits amount'' would be removed from Sec. 4043.2.

Summary Chart

The following table summarizes waiver and safe harbor provisions
for reportable events for which post-event reporting is required under
the current regulation, the 2009 proposal, and this proposed rule. (As
explained in detail above, the current proposal also provides filing
relief--like the relief provided by waivers--through changes to the
definitions of certain reportable events, including substantial owner
distributions and active participant reductions and through the
provision of filing extensions such as for active participant
reductions that occur by attrition.)
BILLING CODE 7709-01-P

[[Page 20054]]

[GRAPHIC] [TIFF OMITTED] TP03AP13.000

[[Page 20055]]

[GRAPHIC] [TIFF OMITTED] TP03AP13.001

BILLING CODE 7709-01-C

[[Page 20056]]

Other Regulations

Several other PBGC regulations also refer to plan funding concepts
using citations outmoded by PPA 2006: The regulations on Filing,
Issuance, Computation of Time, and Record Retention (29 CFR part 4000);
Terminology (29 CFR part 4001); Variances for Sale of Assets (29 CFR
part 4204); Adjustment of Liability for a Withdrawal Subsequent to a
Partial Withdrawal (29 CFR part 4206); and Mergers and Transfers
Between Multiemployer Plans (29 CFR part 4231). Thus, these regulations
must also be revised to be consistent with ERISA and the Code as
amended by PPA 2006 and with the revised premium regulations. This
proposed rule would make the necessary conforming revisions.

Applicability

PBGC proposes to make the changes to the reportable events
regulation in this proposed rule applicable to post-event reports for
reportable events occurring on or after January 1, 2014, and to advance
reports due on or after that date. Deferral of the applicability date
would provide time for plans and plan sponsors to institute any
necessary event monitoring programs to comply with the new rules. PBGC
is also giving consideration to making the waiver and safe harbor
provisions in the final regulation available (in addition to the
waivers in the current regulation) during the period from the effective
date of the final rule (30 days after publication in the Federal
Register) to January 1, 2014.

Public Participation

PBGC welcomes comments from the public on all matters relating to
the proposed rule. In particular, PBGC seeks public comments on the
following specific questions:
(1) What are the advantages and disadvantages of the proposed safe
harbor for financially sound plan sponsors?
(2) What are commenters' experiences with commercial credit
reporting companies that might be relevant to developing a reportable
events safe harbor? Do credit report scores change when reportable
events occur? How often or easily are changes in credit report scores
provided to users and the public? Can companies obtain timely updates
that allow for an accurate assessment of financial soundness at a
particular time?
(3) Does the proposal provide an appropriate way to assess
financial soundness of plan sponsors? Is a commercial credit report
score an appropriate basis for measuring financial strength for
purposes of the safe harbor? Does the secured debt test for financial
soundness include and exclude appropriate categories of debt from the
test criteria? For example, should receivables financing be excluded
from the test? Is the net income test too stringent or too lenient? Do
the debt service and plan contribution tests include and exclude
appropriate events? Are the proposed standards for the sponsor safe
harbor too complex?
(4) Regarding the number and stringency of the criteria for the
financially sound company safe harbor:
Should there be more or fewer criteria than the five
proposed in this rule? If more, what should the additional ones be? If
fewer, which ones should be eliminated?
Are the relative stringencies of the criteria appropriate
for determining company financial soundness?
Should alternative combinations of a subset of the five
criteria be permissible?
Should financial soundness criteria for companies and
plans be combined?
(5) Are there standard, commonly used metrics that could be applied
to determine financial soundness that do not rely on third party
commercial credit reporting companies (e.g., based on balance sheet or
cash-flow ratios, such as current assets to current liabilities, debt
to equity, or some form of debt-service to cash-flow ratio)? Would such
metrics be available and appropriate for all plan sponsors? What would
be the advantages or disadvantages of using such an approach? Are there
other alternatives to determining financial soundness?
(6) Should PBGC adopt other standards of creditworthiness?
(7) For the proposed safe harbor via plans, what alternative
funding percentage(s) (on a termination basis or premium basis) should
be permitted, and why?
(8) Should PBGC provide other alternative waivers? Should such
alternatives be in addition to, or in place of, the proposed financial
soundness safe harbors for companies and plans?
(9) How can PBGC implement safe harbors, whether based on financial
soundness or other factors, in a consistent, transparent, well-defined,
and replicable or verifiable way?
In responding to the above questions, to the extent possible,
commenters are requested to provide quantitative as well as qualitative
support or analysis where applicable.
A public hearing has been scheduled for June 18, 2013, beginning at
2:00 p.m., in the PBGC Training Institute, Washington, DC, shortly
after the close of the comment period. Pursuant to building security
procedures, visitors must arrive at 1200 K Street not more than 30
minutes before the hearing starts and present government-issued photo
identification to enter the building.
PBGC requests that any person who wishes to present oral comments
at the hearing file written comments on this proposed rule (see DATES
and ADDRESSES above). Such persons also must submit by June 4, 2013, an
outline of topics to be discussed and the amount of time to be devoted
to each topic. The outline of topics to be discussed must be submitted
by email to regs.comments@pbgc.gov or by mail or courier to Regulatory
Affairs Group, Office of the General Counsel, Pension Benefit Guaranty
Corporation, 1200 K Street NW., Washington, DC 20005-4026. An agenda
identifying the speakers will be prepared after the deadline for
receiving outlines. Copies of the agenda will be available free of
charge at the hearing.

Regulatory Procedures

Executive Order 12866 ``Regulatory Planning and Review'' and Executive
Order 13563 ``Improving Regulation and Regulatory Review''

PBGC has determined, in consultation with the Office of Management
and Budget, that this rule is a ``significant regulatory action'' under
Executive Order 12866. The Office of Management and Budget has
therefore reviewed this notice under Executive Order 12866.
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. Executive Orders 12866 and 13563 require a comprehensive
regulatory impact analysis be performed for any economically
significant regulatory action, defined as an action that would result
in an annual effect of $100 million or more on the national economy or
which would have other substantial impacts. In accordance with OMB
Circular A-4, PBGC has examined

[[Page 20057]]

the economic and policy implications of this proposed rule and has
concluded that the action's benefits justify its costs.
As discussed above, some reportable events present little or no
risk to the pension insurance system--where, for example, the plan
sponsor is financially sound and the risk of plan termination low.
Reports of such events are unnecessary in the sense that PBGC typically
reviews but takes no action on them. PBGC analyzed 2011 records to
determine how many such reports it received for events to which the
proposed sponsor safe harbor would apply, then reanalyzed the data to
see how many unnecessary reports would have been received if the plan
sponsor safe harbor in the proposed rule had been in effect (that is,
excluding reports that would have been waived under the plan sponsor
safe harbor test).\37\ It found that the proportion of unnecessary
filings would be much lower under the proposed regulation than under
the existing regulation--5 percent (10 filings) compared to 42 percent
(79 filings). Thus, although the total number of filings may be a
little higher under the proposed rule, the proportion of unnecessary
reports, and the regulatory burden on financially sound sponsors and
plans, would be dramatically reduced.
---------------------------------------------------------------------------

\37\ Filings that involve section 4062(e) events always result
in the opening of cases and were excluded from the analysis.
---------------------------------------------------------------------------

Under Section 3(f)(1) of Executive Order 12866, a regulatory action
is economically significant if ``it is likely to result in a rule that
may * * * [h]ave an annual effect on the economy of $100 million or
more or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities.'' PBGC has determined that this proposed rule does not
cross the $100 million threshold for economic significance and is not
otherwise economically significant.
This action is associated with retrospective review and analysis in
PBGC's Plan for Regulatory Review \38\ issued in accordance with
Executive Order 13563 on ``Improving Regulation and Regulatory
Review.''
---------------------------------------------------------------------------

\38\ See www.pbgc.gov/documents/plan-for-regulatory-review.pdf.
---------------------------------------------------------------------------

Regulatory Flexibility Act

The Regulatory Flexibility Act imposes certain requirements with
respect to rules that are subject to the notice and comment
requirements of section 553(b) of the Administrative Procedure Act and
that are likely to have a significant economic impact on a substantial
number of small entities. Unless an agency determines that a proposed
rule is not likely to have a significant economic impact on a
substantial number of small entities, section 603 of the Regulatory
Flexibility Act requires that the agency present an initial regulatory
flexibility analysis at the time of the publication of the proposed
rule describing the impact of the rule on small entities and seeking
public comment on such impact. Small entities include small businesses,
organizations and governmental jurisdictions.
For purposes of the Regulatory Flexibility Act requirements with
respect to the proposed amendments to the reportable events regulation,
PBGC considers a small entity to be a plan with fewer than 100
participants. This is the same criterion used to determine the
availability of the ``small plan'' waiver under the proposal, and is
consistent with certain requirements in Title I of ERISA \39\ and the
Internal Revenue Code,\40\ as well as the definition of a small entity
that the Department of Labor (DOL) has used for purposes of the
Regulatory Flexibility Act.\41\ Using this proposed definition, about
64 percent (16,700 of 26,100) of plans covered by Title IV of ERISA in
2010 were small plans.\42\
---------------------------------------------------------------------------

\39\ See, e.g., ERISA section 104(a)(2), which permits the
Secretary of Labor to prescribe simplified annual reports for
pension plans that cover fewer than 100 participants.
\40\ See, e.g., Code section 430(g)(2)(B), which permits plans
with 100 or fewer participants to use valuation dates other than the
first day of the plan year.
\41\ See, e.g., DOL's final rule on Prohibited Transaction
Exemption Procedures, 76 FR 66,637, 66,644 (Oct. 27, 2011).
\42\ See PBGC 2010 pension insurance data table S-31, http://www.pbgc.gov/Documents/pension-insurance-data-tables-2010.pdf.
---------------------------------------------------------------------------

Further, while some large employers may have small plans, in
general most small plans are maintained by small employers. Thus, PBGC
believes that assessing the impact of the proposal on small plans is an
appropriate substitute for evaluating the effect on small entities. The
definition of small entity considered appropriate for this purpose
differs, however, from a definition of small business based on size
standards promulgated by the Small Business Administration (13 CFR
121.201) pursuant to the Small Business Act. PBGC therefore requests
comments on the appropriateness of the size standard used in evaluating
the impact on small entities of the proposed amendments to the
reportable events regulation.
On the basis of its proposed definition of small entity, PBGC
certifies under section 605(b) of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.) that the amendments in this rule 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. This
certification is based on the fact that the reportable events
regulation requires only the filing of one-time notices on the
occurrence of unusual events that affect only certain plans and that
the economic impact of filing is not significant. The average burden of
submitting a notice--based on the estimates discussed under Paperwork
Reduction Act, below--is less than 5\1/2\ hours and $800 (virtually the
same as under the current regulation). PBGC invites public comment on
this burden estimate.

Paperwork Reduction Act

PBGC is submitting the information requirements under this proposed
rule to the Office of Management and Budget for review and approval
under the Paperwork Reduction Act. There are two information
collections under the reportable events regulation, approved under OMB
control number 1212-0013 (covering subparts B and C) and OMB control
number 1212-0041 (covering subpart D), both of which expire March 31,
2015. Copies of PBGC's requests may be obtained free of charge by
contacting the Disclosure Division of the Office of the General Counsel
of PBGC, 1200 K Street NW., Washington, DC 20005, 202-326-4040.
PBGC is proposing the following changes to these information
requirements:
PBGC's experience is that in order to assess the
significance of virtually every post-event filing for a missed
contribution, inability to pay benefits, loan default, liquidation, or
insolvency, it must obtain from the filer certain actuarial, financial,
and controlled group information. Filers are currently required to
submit some of this information for some events, but PBGC wants to make
its information collection for all these events more uniform.
Accordingly, PBGC proposes to require that every post-event filing for
one of these events include these items (except that financial
information is unnecessary for reports of insolvency because PBGC can
typically obtain most of the information from court records). Actuarial
information would no longer have to be submitted with post-event
notices of other events. (1) The actuarial information required would
be a copy of the most recent actuarial valuation report for the plan, a
statement of

[[Page 20058]]

subsequent material changes, and the most recent month-end market value
of plan assets. (2) The financial information required would be copies
of audited financial statements for the most recent fiscal year. (If
audited statements were not immediately available, copies of unaudited
financial statements (if available) or tax returns would be required,
to be followed up with required financial statements when available.)
(3) The controlled group information required would be tailored to the
event being reported and would generally include identifying
information for each plan maintained by any member of the controlled
group, a description of the controlled group with members' names, and
the status of members (for example, liquidating or in bankruptcy).
Similarly, PBGC has found that it needs the same
actuarial, financial, and controlled group information for advance-
notice filings. For notices of funding waiver requests, the information
can typically be gleaned from the copy of the request that accompanies
the reportable event notice. And financial information is unnecessary
for reports of insolvency because PBGC can typically obtain most of the
information from court records. With these exceptions, PBGC proposes to
require that every advance notice filing include these items.
Controlled group changes and benefit liability transfers
involve both an ``old'' controlled group and a ``new'' controlled
group. PBGC already requires submission of controlled group information
with notices of controlled group changes, and now proposes to do the
same for benefit liability transfers.
Because extraordinary distributions raise questions about
controlled group finances, PBGC proposes to require submission of
financial information with notices of events of this type.
Inability to pay benefits and liquidation both raise the
specter of imminent sponsor shutdown and plan termination. Accordingly,
for notices of these two events (including advance notices of
liquidation events), PBGC proposes to require submission of copies of
the most recent plan documents and IRS qualification letter, the date
or expected date of shutdown, and the identity of the plan actuary if
different from the actuary reported on the most recent Form 5500
Schedule SB. Plan documents would no longer be required with notices
for other events.
PBGC proposes to require email addresses for plan
administrators, sponsors, and designated contact persons.
PBGC proposes to require that both post-event and advance
report filings state explicitly the date of the event or the actual or
anticipated effective date of the event (as applicable). This
requirement will avoid the potential for confusion or ambiguity in the
description of the event regarding this date.
PBGC has found that it often does not need the actuarial
valuation report that must currently be included with notice of a
substantial owner distribution and thus proposes to eliminate that
requirement. However, PBGC proposes to add a requirement that notices
of this event give the reason for the distribution to help PBGC analyze
its significance.
For both post-event and advance notices of loan defaults,
PBGC proposes to require that any cross-defaults or anticipated cross-
defaults be described.
PBGC has found that some filers that should file Form 200
under Sec. 4043.81 of the reportable events regulation (missed
contributions totaling over $1 million) file only Form 10 under Sec.
4043.25 (missed contributions of any amount). This has led to delays in
enforcing liens under ERISA section 302(f) and Code section 412(n)
(corresponding to ERISA section 303(k) and Code section 430(k) as
amended by PPA 2006). To address this issue, PBGC proposes that Form 10
filings for missed contributions include the amount and date of all
missed contributions since the most recent Schedule SB.
PBGC proposes to eliminate Form 200 information submission
requirements for documents that PBGC typically can now obtain timely on
its own and to add new information submission requirements to help it
analyze the seriousness of the plan's status and perfect statutory
liens triggered by large missed contributions. Documentation to be
eliminated would be copies of Form 5500 Schedule SB, SEC filings, and
documents connected with insolvency, liquidation, receivership, and
similar proceedings. New information to be required would be a
statement of material changes in liabilities since the most recent
actuarial valuation report, most recent month-end market value of plan
assets, description of each controlled group member's status (for
example, liquidating or in bankruptcy), information about all
controlled group real property, and identity of controlled group head
offices.
PBGC Form 10 currently requires for the bankruptcy/
insolvency event that the bankruptcy petition and docket (or similar
documents) be submitted. Form 10-Advance requires that all documents
filed in the relevant proceeding be submitted. Both forms require that
the last date for filing claims be reported if known. PBGC proposes to
replace these requirements with a requirement that filers simply
identify the court where the insolvency proceeding was filed or will be
filed and the docket number of the filing (if known).
PBGC needs the information in reportable events filings under
subparts B and C of part 4043 (Forms 10 and 10-Advance) to determine
whether it should terminate plans that experience events that indicate
plan or contributing sponsor financial problems. PBGC estimates that it
will receive such filings from about 1,085 respondents each year and
that the total annual burden of the collection of information will be
about 5,744 hours and $857,195. This represents a burden comparable to
that under the existing regulation, as the following table shows:

------------------------------------------------------------------------
Under existing Under proposed
Annual burden: regulation: rule:
------------------------------------------------------------------------
Number of responses............. 1,026............. 1,085.
Hour burden..................... 5,400 hours....... 5,744 hours.
Dollar burden................... $821,826.......... $857,195.
------------------------------------------------------------------------

As discussed above, however, the proposal is designed to reduce
burden dramatically on financially sound plans and sponsors (which
present a low degree of risk); thus, burden under the proposed rule
would be substantially associated with higher-risk events, which are
much more likely to deserve PBGC's attention. PBGC separately estimated
the average burden changes for low-risk and high-risk entities. The
burden for low-risk sponsors would go down from 417 hours and $121,725
to zero. The burden for high-risk sponsors

[[Page 20059]]

would go up by approximately 760 hours and $157,100.

----------------------------------------------------------------------------------------------------------------
Low-risk Volume Hours Cost
----------------------------------------------------------------------------------------------------------------
Current......................................................... 144 417 $121,725
Proposed........................................................ 0 0 $0
Change.......................................................... (144) (417) (121,725)
----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
High-risk Volume Hours Cost
----------------------------------------------------------------------------------------------------------------
Current......................................................... 882 4,983 $700,101
Proposed........................................................ 1,085 5,744 857,195
Change.......................................................... 203 761 157,094
----------------------------------------------------------------------------------------------------------------

PBGC needs the information in missed contribution filings under
subpart D of part 4043 (Form 200) to determine the amounts of statutory
liens arising under ERISA section 303(k) and Code section 430(k) and to
evaluate the funding status of plans with respect to which such liens
arise and the financial condition of the persons responsible for their
funding. PBGC estimates that it will receive such filings from about
136 respondents each year and that the total annual burden of the
collection of information will be about 816 hours and $125,000.\43\
---------------------------------------------------------------------------

\43\ In comparison, PBGC's most recent annual burden estimate
for this information collection was 110 responses, 670 hours, and
$102,000.
---------------------------------------------------------------------------

Comments on the paperwork provisions under this proposed rule
should be sent to the Office of Information and Regulatory Affairs,
Office of Management and Budget, Attention: Desk Officer for Pension
Benefit Guaranty Corporation, via electronic mail at OIRA_DOCKET@omb.eop.gov or by fax to (202) 395-6974. Although comments may
be submitted through June 3, 2013, the Office of Management and Budget
requests that comments be received on or before May 3, 2013 to ensure
their consideration. Comments may address (among other things)--
Whether each proposed collection of information is needed
for the proper performance of PBGC's functions and will have practical
utility;
The accuracy of PBGC's estimate of the burden of each
proposed collection of information, including the validity of the
methodology and assumptions used;
Enhancement of the quality, utility, and clarity of the
information to be collected; and
Minimizing the burden of each collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.

List of Subjects

29 CFR Part 4000

Employee benefit plans, Pension insurance, Reporting and
recordkeeping requirements.

29 CFR Part 4001

Employee benefit plans, Pension insurance.

29 CFR Part 4043

Employee benefit plans, Pension insurance, Reporting and
recordkeeping requirements.

29 CFR Part 4204

Employee benefit plans, Pension insurance, Reporting and
recordkeeping requirements.

29 CFR Part 4206

Employee benefit plans, Pension insurance.

29 CFR Part 4231

Employee benefit plans, Pension insurance, Reporting and
recordkeeping requirements.

0
For the reasons given above, PBGC proposes to amend 29 CFR parts 4000,
4001, 4043, 4204, 4206, and 4231 as follows.

PART 4000--FILING, ISSUANCE, COMPUTATION OF TIME, AND RECORD
RETENTION

0
1. The authority citation for part 4000 is revised to read as follows:

Authority: 29 U.S.C. 1083(k), 1302(b)(3).

0
2. In Sec. 4000.3, new paragraph (b)(3) is added to read as follows:

Sec. 4000.3 What methods of filing may I use?

* * * * *
(b) * * *
(3) You must file notices under part 4043 of this chapter
electronically in accordance with the instructions on PBGC's Web site,
except as otherwise provided by PBGC.
* * * * *
0
3. In Sec. 4000.53, paragraphs (c) and (d) are amended by removing the
words ``section 302(f)(4), section 307(e), or'' where they occur in
each paragraph and adding in their place the words ``section 101(f),
section 303(k)(4), or''.

PART 4001--TERMINOLOGY

0
4. The authority citation for part 4001 continues to read as follows:

Authority: 29 U.S.C. 1301, 1302(b)(3).
0
5. In Sec. 4001.2:
0
a. The definition of ``controlled group'' is amended by removing the
words ``section 412(c)(11)(B) of the Code or section 302(c)(11)(B) of
ERISA'' and adding in their place the words ``section 412(b)(2) of the
Code or section 302(b)(2) of ERISA''.
0
b. The definition of ``funding standard account'' is amended by
removing the words ``section 302(b) of ERISA or section 412(b) of the
Code'' and adding in their place the words ``section 304(b) of ERISA or
section 431(b) of the Code''.
0
c. The definition of ``substantial owner'' is amended by removing the
words ``section 4022(b)(5)(A)'' and adding in their place the words
``section 4021(d)''.
0
6. Part 4043 is revised to read as follows:

PART 4043--REPORTABLE EVENTS AND CERTAIN OTHER NOTIFICATION
REQUIREMENTS

Subpart A--General Provisions
Sec.
4043.1 Purpose and scope.
4043.2 Definitions.
4043.3 Requirement of notice.
4043.4 Waivers and extensions.
4043.5 How and where to file.
4043.6 Date of filing.
4043.7 Computation of time.
4043.8 Confidentiality.
4043.9 Financial soundness.

[[Page 20060]]

Subpart B--Post-Event Notice of Reportable Events
4043.20 Post-event filing obligation.
4043.21 Tax disqualification and Title I noncompliance.
4043.22 Amendment decreasing benefits payable.
4043.23 Active participant reduction.
4043.24 Termination or partial termination.
4043.25 Failure to make required minimum funding payment.
4043.26 Inability to pay benefits when due.
4043.27 Distribution to a substantial owner.
4043.28 Plan merger, consolidation, or transfer.
4043.29 Change in contributing sponsor or controlled group.
4043.30 Liquidation.
4043.31 Extraordinary dividend or stock redemption.
4043.32 Transfer of benefit liabilities.
4043.33 Application for minimum funding waiver.
4043.34 Loan default.
4043.35 Insolvency or similar settlement.
Subpart C--Advance Notice of Reportable Events
4043.61 Advance reporting filing obligation.
4043.62 Change in contributing sponsor or controlled group.
4043.63 Liquidation.
4043.64 Extraordinary dividend or stock redemption.
4043.65 Transfer of benefit liabilities.
4043.66 Application for minimum funding waiver.
4043.67 Loan default.
4043.68 Insolvency or similar settlement.
Subpart D--Notice of Failure to Make Required Contributions
4043.81 PBGC Form 200, notice of failure to make required
contributions; supplementary information.

Authority: 29 U.S.C. 1082(f), 1302(b)(3), 1343.

Subpart A--General Provisions

Sec. 4043.1 Purpose and scope.

This part prescribes the requirements for notifying PBGC of a
reportable event under section 4043 of ERISA or of a failure to make
certain required contributions under section 303(k)(4) of ERISA or
section 430(k)(4) of the Code. Subpart A contains definitions and
general rules. Subpart B contains rules for post-event notice of a
reportable event. Subpart C contains rules for advance notice of a
reportable event. Subpart D contains rules for notifying PBGC of a
failure to make certain required contributions.

Sec. 4043.2 Definitions.

The following terms are defined in Sec. 4001.2 of this chapter:
benefit liabilities, Code, contributing sponsor, controlled group,
ERISA, fair market value, irrevocable commitment, multiemployer plan,
PBGC, person, plan, plan administrator, plan year, single-employer
plan, and substantial owner.
In addition, for purposes of this part:
De minimis 10-percent segment means, in connection with a plan's
controlled group, one or more entities that in the aggregate have for a
fiscal year--
(1) Revenue not exceeding 10 percent of the controlled group's
revenue;
(2) Annual operating income not exceeding the greater of--
(i) 10 percent of the controlled group's annual operating income;
or
(ii) $5 million; and
(3) Net tangible assets at the end of the fiscal year(s) not
exceeding the greater of--
(i) 10 percent of the controlled group's net tangible assets at the
end of the fiscal year(s); or
(ii) $5 million.
De minimis 5-percent segment has the same meaning as de minimis 10-
percent segment, except that ``5 percent'' is substituted for ``10
percent'' each time it appears.
Event year means the plan year in which a reportable event occurs.
Financially sound has the meaning described in Sec. 4043.9.
Foreign entity means a member of a controlled group that--
(1) Is not a contributing sponsor of a plan;
(2) Is not organized under the laws of (or, if an individual, is
not a domiciliary of) any state (as defined in section 3(10) of ERISA);
and
(3) For the fiscal year that includes the date the reportable event
occurs, meets one of the following tests--
(i) Is not required to file any United States federal income tax
form;
(ii) Has no income reportable on any United States federal income
tax form other than passive income not exceeding $1,000; or
(iii) Does not own substantial assets in the United States
(disregarding stock of a member of the plan's controlled group) and is
not required to file any quarterly United States tax returns for
employee withholding.
Foreign parent means a foreign entity that is a direct or indirect
parent of a person that is a contributing sponsor of a plan.
Notice date means the deadline (including extensions) for filing
notice of a reportable event with PBGC.
Participant means a participant as defined in Sec. 4006.2 of this
chapter.
U.S. entity means an entity subject to the personal jurisdiction of
the U.S. district court.

Sec. 4043.3 Requirement of notice.

(a) Obligation to file--(1) In general. Each person that is
required to file a notice under this part, or a duly authorized
representative, must submit the information required under this part by
the time specified in Sec. 4043.20 (for post-event notice), Sec.
4043.61 (for advance notice), or Sec. 4043.81 (for Form 200 filings).
Any information filed with PBGC in connection with another matter may
be incorporated by reference. If an event is subject to both post-event
and advance notice requirements, the notice filed first satisfies both
filing requirements.
(2) Multiple plans. If a reportable event occurs for more than one
plan, the filing obligation with respect to each plan is independent of
the filing obligation with respect to any other plan.
(3) Optional consolidated filing. A filing of a notice with respect
to a reportable event by any person required to file will be deemed to
be a filing by all persons required to give PBGC notice of the event
under this part. If notices are required for two or more events, the
notices may be combined in one filing.
(b) Contents of reportable event notice. A person required to file
a reportable event notice under subpart B or C of this part must file,
by the notice date, the form specified by PBGC for that purpose, with
the information specified in PBGC's reportable events instructions.
(c) Reportable event forms and instructions. PBGC will issue
reportable events forms and instructions and make them available on its
Web site (http://www.pbgc.gov/).
(d) Requests for additional information. PBGC may, in any case,
require the submission of additional relevant information not specified
in its forms and instructions. Any such information must be submitted
for subpart B of this part within 30 days, and for subpart C or D of
this part within 7 days, after the date of a written request by PBGC,
or within a different time period specified therein. PBGC may in its
discretion shorten the time period where it determines that the
interests of PBGC or participants may be prejudiced by a delay in
receipt of the information.
(e) Effect of failure to file. If a notice (or any other
information required under this part) is not provided within the
specified time limit, PBGC may assess against each person required to
provide the notice a separate penalty under section 4071 of ERISA. PBGC
may pursue any other equitable or legal remedies available to it under
the law.

[[Page 20061]]

Sec. 4043.4 Waivers and extensions.

(a) Waivers and extensions--in general. PBGC may extend any
deadline or waive any other requirement under this part where it finds
convincing evidence that the waiver or extension is appropriate under
the circumstances. Any waiver or extension may be subject to
conditions. A request for a waiver or extension must be filed with PBGC
in writing (which may be in electronic form) and must state the facts
and circumstances on which the request is based.
(b) Waivers and extensions--specific events. For some reportable
events, automatic waivers from reporting and information requirements
and extensions of time are provided in subparts B and C of this part.
If an occurrence constitutes two or more reportable events, reporting
requirements for each event are determined independently. For example,
reporting is automatically waived for an occurrence that constitutes a
reportable event under more than one section only if the requirements
for an automatic waiver under each section are satisfied.
(c) Multiemployer plans. The requirements of section 4043 of ERISA
are waived with respect to multiemployer plans.
(d) Terminating plans. No notice is required from the plan
administrator or contributing sponsor of a plan if the notice date is
on or after the date on which--
(1) All of the plan's assets (other than any excess assets) are
distributed pursuant to a termination under part 4041 of this chapter;
or
(2) A trustee is appointed for the plan under section 4042(c) of
ERISA.

Sec. 4043.5 How and where to file.

Reportable event notices required under this part must be filed
electronically using the forms and in accordance with the instructions
promulgated by PBGC, which are posted on PBGC's Web site. Filing
guidance is provided by the instructions and by subpart A of part 4000
of this chapter.

Sec. 4043.6 Date of filing.

(a) Post-event notice filings. PBGC applies the rules in subpart C
of part 4000 of this chapter to determine the date that a submission
under subpart B of this part was filed with PBGC.
(b) Advance notice and Form 200 filings. Information filed under
subpart C or D of this part is treated as filed on the date it is
received by PBGC. Subpart C of part 4000 of this chapter provides rules
for determining when PBGC receives a submission.

Sec. 4043.7 Computation of time.

PBGC applies the rules in subpart D of part 4000 of this chapter to
compute any time period under this part.

Sec. 4043.8 Confidentiality.

In accordance with section 4043(f) of ERISA and Sec. 4901.21(a)(3)
of this chapter, any information or documentary material that is not
publicly available and is submitted to PBGC pursuant to subpart B or C
of this part will 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. 4043.9 Financial soundness.

(a) In general. The term ``financially sound'' is defined in
paragraph (b) of this section for an entity that is a plan sponsor or
member of a plan sponsor's controlled group and in paragraph (c) of
this section for a plan.
(b) Financially sound sponsor or controlled group member. For
purposes of this part, an entity that is a plan sponsor or member of a
plan sponsor's controlled group is ``financially sound'' as of any date
(the determination date) if on the determination date it has adequate
capacity to meet its obligations in full and on time as evidenced by
its satisfaction of all of the five criteria described in paragraphs
(b)(1) through (b)(5) of this section.
(1) The entity is scored by a commercial credit reporting company
that is commonly used in the business community, and the score
indicates a low likelihood that the entity will default on its
obligations.
(2) The entity has no secured debt, disregarding leases or debt
incurred to acquire or improve property and secured only by that
property.
(3) For the most recent two fiscal years, the entity has positive
net income under generally accepted accounting principles (GAAP) or
International Financial Reporting Standards (IFRS). For purposes of
this provision, net income of a tax-exempt entity is the excess of
total revenue over total expenses as required to be reported on
Internal Revenue Service Form 990.
(4) For the two-year period ending on the determination date, no
event described in Sec. 4043.34(a)(1) or (2) (dealing with a default
on loan with an outstanding balance of $10 million or more) has
occurred with respect to any loan to the entity, regardless of whether
reporting was waived under Sec. 4043.34(c).
(5) For the two-year period ending on the determination date, the
entity has not failed to make when due any contribution described in
Sec. 4043.25(a)(1) or (2) (dealing with failure to make required
minimum funding payments), unless reporting is waived under Sec.
4043.25(c) for failure to make the contribution.
(c) Financially sound plan. For purposes of this part,
``financially sound'' means, with respect to a plan for a plan year,
that the plan meets the requirements of either paragraph (c)(1) or
paragraph (c)(2) of this section.
(1) A plan meets the requirements of this paragraph (c)(1) if, as
of the last day of the prior plan year, the plan had no unfunded
benefit liabilities (within the meaning of section 4062(b)(1)(A) of
ERISA) as determined in accordance with Sec. Sec. 4044.51 through
4044.57 of this chapter (dealing with valuation of benefits and assets
in trusteed terminating plans) and Sec. 4010.8(d)(1)(ii) of this
chapter.
(2) A plan meets the requirements of this paragraph (c)(2) if for
the prior plan year, the ratio of the value of the plan's assets as
determined for premium purposes in accordance with part 4006 of this
chapter to the amount of the plan's premium funding target as so
determined was not less than 120 percent.

Subpart B--Post-Event Notice of Reportable Events

Sec. 4043.20 Post-event filing obligation.

(a) In general. The plan administrator and each contributing
sponsor of a plan for which a reportable event under this subpart has
occurred are required to notify PBGC within 30 days after that person
knows or has reason to know that the reportable event has occurred,
unless a waiver or extension applies. If there is a change in plan
administrator or contributing sponsor, the reporting obligation applies
to the person who is the plan administrator or contributing sponsor of
the plan on the 30th day after the reportable event occurs.
(b) Extension for certain events. For the events described in
Sec. Sec. 4043.23, 4043.27, 4043.29, 4043.31, and 4043.32, if the
plan's premium due date for the plan year preceding the event year was
determined under Sec. 4007.11(a)(1) (dealing with small plans) or
Sec. 4007.11(c) (dealing with new and newly covered plans) of this
chapter, the notice date is extended until the last day of the
seventeenth full calendar month that began on or after the first day of
such preceding plan year (the effective date, in the case of a new
plan).

[[Page 20062]]

Sec. 4043.21 Tax disqualification and Title I noncompliance.

(a) Reportable event. A reportable event occurs when the Secretary
of the Treasury issues notice that a plan has ceased to be a plan
described in section 4021(a)(2) of ERISA, or when the Secretary of
Labor determines that a plan is not in compliance with title I of
ERISA.
(b) Waiver. Notice is waived for this event.

Sec. 4043.22 Amendment decreasing benefits payable.

(a) Reportable event. A reportable event occurs when an amendment
to a plan is adopted under which the retirement benefit payable from
employer contributions with respect to any participant may be
decreased.
(b) Waiver. Notice is waived for this event.

Sec. 4043.23 Active participant reduction.

(a) Reportable event. A reportable event occurs:
(1) Single-cause event. When the reductions in the number of active
participants under a plan due to a single cause--such as a
reorganization, the discontinuance of an operation, a natural disaster,
a mass layoff, or an early retirement incentive program--are more than
20 percent of the number of active participants at the beginning of the
plan year or more than 25 percent of the number of active participants
at the beginning of the previous plan year.
(2) Short-period event. When the reductions in the number of active
participants under a plan over a short period (disregarding reductions
reported under paragraph (a)(1) of this section) are more than 20
percent of the number of active participants at the beginning of the
plan year, or more than 25 percent of the number of active participants
at the beginning of the previous plan year. For this purpose, a short
period is a period of 30 days or less that does not include any part of
a prior short period for which an active participant reduction is
reported under this section.
(3) Attrition event. On the last day of a plan year if the number
of active participants under a plan are reduced by more than 20 percent
of the number of active participants at the beginning of the plan year,
or by more than 25 percent of the number of active participants at the
beginning of the previous plan year. The reduction may be measured by
using the number of active participants on either the last day of the
plan year or the participant count date (as defined in Sec. 4006.2 of
this chapter) for the next plan year, but in either case is considered
to occur on the last day of the plan year.
(b) Determination rules--(1) Determination dates. The number of
active participants at the beginning of a plan year may be determined
by using the number of active participants at the end of the previous
plan year.
(2) Active participant. ``Active participant'' means a participant
who--
(i) Is receiving compensation for work performed;
(ii) Is on paid or unpaid leave granted for a reason other than a
layoff;
(iii) Is laid off from work for a period of time that has lasted
less than 30 days; or
(iv) Is absent from work due to a recurring reduction in employment
that occurs at least annually.
(3) Employment relationship. The employment relationship referred
to in this paragraph (b) is between the participant and all members of
the plan's controlled group.
(c) Reductions due to cessations and withdrawals. For purposes of
paragraphs (a)(1) and (a)(2) of this section, a reduction in the number
of active participants is to be disregarded to the extent that it--
(1) Is attributable to an event described in ERISA section 4062(e)
or 4063(a), and
(2) Is timely reported to PBGC under ERISA section 4063(a).
(d) Waivers--(1) Current-year small plan. Notice under this section
is waived if the plan had fewer than 100 participants for whom flat-
rate premiums were payable for the plan year preceding the event year.
(2) Financial soundness. Notice under this section is waived if--
(i) For each contributing sponsor of the plan, either the sponsor
or the sponsor's highest level controlled group parent that is a U.S.
entity is financially sound when the event occurs, or
(ii) The plan is financially sound for the plan year in which the
event occurs.
(e) Extension--attrition event. For an event described in paragraph
(a)(3) of this section, the notice date is extended until 120 days
after the end of the event year.

Sec. 4043.24 Termination or partial termination.

(a) Reportable event. A reportable event occurs when the Secretary
of the Treasury determines that there has been a termination or partial
termination of a plan within the meaning of section 411(d)(3) of the
Code.
(b) Waiver. Notice is waived for this event.

Sec. 4043.25 Failure to make required minimum funding payment.

(a) Reportable event. A reportable event occurs when--
(1) A contribution required under sections 302 and 303 of ERISA or
sections 412 and 430 of the Code is not made by the due date for the
payment under ERISA section 303(j) or Code section 430(j), or
(2) Any other contribution required as a condition of a funding
waiver is not made when due.
(b) Alternative method of compliance--Form 200 filed. If, with
respect to the same failure, a filing is made in accordance with Sec.
4043.81, that filing satisfies the requirements of this section.
(c) Waivers--(1) Current-year small plan. Notice under this section
is waived with respect to a failure to make a required quarterly
contribution under section 303(j)(3) of ERISA or section 430(j)(3) of
the Code if the plan had fewer than 100 participants for whom flat-rate
premiums were payable for the plan year preceding the event year.
(2) 30-day grace period. Notice under this section is waived if the
missed contribution is made by the 30th day after its due date.

Sec. 4043.26 Inability to pay benefits when due.

(a) Reportable event. A reportable event occurs when a plan is
currently unable or projected to be unable to pay benefits.
(1) Current inability. A plan is currently unable to pay benefits
if it fails to provide any participant or beneficiary the full benefits
to which the person is entitled under the terms of the plan, at the
time the benefit is due and in the form in which it is due. A plan is
not treated as being currently unable to pay benefits if its failure to
pay is caused solely by--
(i) A limitation under section 436 of the Code and section 206(g)
of ERISA (dealing with funding-based limits on benefits and benefit
accruals under single-employer plans), or
(ii) The need to verify a person's eligibility for benefits; the
inability to locate a person; or any other administrative delay if the
delay is for less than the shorter of two months or two full benefit
payment periods.
(2) Projected inability. A plan is projected to be unable to pay
benefits when, as of the last day of any quarter of a plan year, the
plan's ``liquid assets'' are less than two times the amount of the
``disbursements from the plan'' for such quarter. ``Liquid assets'' and
``disbursements from the plan'' have the same meaning as under section

[[Page 20063]]

303(j)(4)(E) of ERISA and section 430(j)(4)(E) of the Code.
(b) Waiver--plans subject to liquidity shortfall rules. Notice
under this section is waived unless the reportable event occurs during
a plan year for which the plan is exempt from the liquidity shortfall
rules in section 303(j)(4) of ERISA and section 430(j)(4) of the Code
because it is described in section 303(g)(2)(B) of ERISA and section
430(g)(2)(B) of the Code.

Sec. 4043.27 Distribution to a substantial owner.

(a) Reportable event. A reportable event occurs for a plan when--
(1) There is a distribution to a substantial owner of a
contributing sponsor of the plan;
(2) The total of all distributions made to the substantial owner
within the one-year period ending with the date of such distribution
exceeds $10,000;
(3) The distribution is not made by reason of the substantial
owner's death;
(4) Immediately after the distribution, the plan has nonforfeitable
benefits (as provided in Sec. 4022.5 of this chapter) that are not
funded; and
(5) Either--
(i) The sum of the values of all distributions to any one
substantial owner within the one-year period ending with the date of
the distribution is more than one percent of the end-of-year total
amount of the plan's assets (as required to be reported on Schedule H
or Schedule I to Form 5500) for each of the two plan years immediately
preceding the event year, or
(ii) The sum of the values of all distributions to all substantial
owners within the one-year period ending with the date of the
distribution is more than five percent of the end-of-year total amount
of the plan's assets (as required to be reported on Schedule H or
Schedule I to Form 5500) for each of the two plan years immediately
preceding the event year.
(b) Determination rules--(1) Valuation of distribution. The value
of a distribution under this section is the sum of--
(i) The cash amounts actually received by the substantial owner;
(ii) The purchase price of any irrevocable commitment; and
(iii) The fair market value of any other assets distributed,
determined as of the date of distribution to the substantial owner.
(2) Date of substantial owner distribution. The date of
distribution to a substantial owner of a cash distribution is the date
it is received by the substantial owner. The date of distribution to a
substantial owner of an irrevocable commitment is the date on which the
obligation to provide benefits passes from the plan to the insurer. The
date of any other distribution to a substantial owner is the date when
the plan relinquishes control over the assets transferred directly or
indirectly to the substantial owner.
(3) Determination date. The determination of whether a participant
is (or has been in the preceding 60 months) a substantial owner is made
on the date when there has been a distribution that would be reportable
under this section if made to a substantial owner.
(c) Alternative method of compliance--non-increasing annuity. In
the case of a non-increasing annuity for a substantial owner, a filing
that satisfies the requirements of this section with respect to any
payment under the annuity and that discloses the period, periodic
amount, and duration of the annuity satisfies the requirements of this
section with respect to all subsequent payments under the annuity.
(d) Waivers--financial soundness. Notice under this section is
waived if--
(1) For each contributing sponsor of the plan, either the sponsor
or the sponsor's highest level controlled group parent that is a U.S.
entity is financially sound when the event occurs, or
(2) The plan is financially sound for the plan year in which the
event occurs.

Sec. 4043.28 Plan merger, consolidation or transfer.

(a) Reportable event. A reportable event occurs when a plan merges,
consolidates, or transfers its assets or liabilities under section 208
of ERISA or section 414(l) of the Code.
(b) Waiver. Notice under this section is waived for this event.
However, notice may be required under Sec. 4043.29 (for a controlled
group change) or Sec. 4043.32 (for a transfer of benefit liabilities).

Sec. 4043.29 Change in contributing sponsor or controlled group.

(a) Reportable event. A reportable event occurs for a plan when
there is a transaction that results, or will result, in one or more
persons ceasing to be members of the plan's controlled group. For
purposes of this section, the term ``transaction'' includes, but is not
limited to, a legally binding agreement, whether or not written, to
transfer ownership, an actual transfer of ownership, and an actual
change in ownership that occurs as a matter of law or through the
exercise or lapse of pre-existing rights. Whether an agreement is
legally binding is to be determined without regard to any conditions in
the agreement. A transaction is not reportable if it will result solely
in a reorganization involving a mere change in identity, form, or place
of organization, however effected.
(b) Waivers--(1) De minimis 10-percent segment. Notice under this
section is waived if the person or persons that will cease to be
members of the plan's controlled group represent a de minimis 10-
percent segment of the plan's old controlled group for the most recent
fiscal year(s) ending on or before the date the reportable event
occurs.
(2) Foreign entity. Notice under this section is waived if each
person that will cease to be a member of the plan's controlled group is
a foreign entity other than a foreign parent.
(3) Current-year small plan. Notice under this section is waived if
the plan had fewer than 100 participants for whom flat-rate premiums
were payable for the plan year preceding the event year.
(4) Financial soundness. Notice under this section is waived if--
(i) For each post-event contributing sponsor of the plan, either
the sponsor or the sponsor's highest level controlled group parent that
is a U.S. entity is financially sound when the event occurs, or
(ii) The plan is financially sound for the plan year in which the
event occurs.
(c) Examples. The following examples assume that no waiver applies.
(1) Controlled group breakup. Plan A's controlled group consists of
Company A (its contributing sponsor), Company B (which maintains Plan
B), and Company C. As a result of a transaction, the controlled group
will break into two separate controlled groups--one segment consisting
of Company A and the other segment consisting of Companies B and C.
Both Company A (Plan A's contributing sponsor) and the plan
administrator of Plan A are required to report that Companies B and C
will leave Plan A's controlled group. Company B (Plan B's contributing
sponsor) and the plan administrator of Plan B are required to report
that Company A will leave Plan B's controlled group. Company C is not
required to report because it is not a contributing sponsor or a plan
administrator.
(2) Change in contributing sponsor. Plan Q is maintained by Company
Q. Company Q enters into a binding contract to sell a portion of its
assets and to transfer employees participating in Plan Q, along with
Plan Q, to Company R, which is not a member of Company Q's controlled
group. There

[[Page 20064]]

will be no change in the structure of Company Q's controlled group. On
the effective date of the sale, Company R will become the contributing
sponsor of Plan Q. A reportable event occurs on the date of the
transaction (i.e., the binding contract), because as a result of the
transaction, Company Q (and any other member of its controlled group)
will cease to be a member of Plan Q's controlled group. If, on the 30th
day after Company Q and Company R enter into the binding contract, the
change in the contributing sponsor has not yet become effective,
Company Q has the reporting obligation. If the change in the
contributing sponsor has become effective by the 30th day, Company R
has the reporting obligation.

Sec. 4043.30 Liquidation.

(a) Reportable event. A reportable event occurs for a plan when a
member of the plan's controlled group--
(1) Is involved in any transaction to implement its complete
liquidation (including liquidation into another controlled group
member);
(2) Institutes or has instituted against it a proceeding to be
dissolved or is dissolved, whichever occurs first; or
(3) Liquidates in a case under the Bankruptcy Code, or under any
similar law.
(b) Waivers--(1) De minimis 10-percent segment. Notice under this
section is waived if the person or persons that liquidate do not
include any contributing sponsor of the plan and represent a de minimis
10-percent segment of the plan's controlled group for the most recent
fiscal year(s) ending on or before the date the reportable event
occurs.
(2) Foreign entity. Notice under this section is waived if each
person that liquidates is a foreign entity other than a foreign parent.

Sec. 4043.31 Extraordinary dividend or stock redemption.

(a) Reportable event. A reportable event occurs for a plan when any
member of the plan's controlled group declares a dividend or redeems
its own stock and the amount or net value of the distribution, when
combined with other such distributions during the same fiscal year of
the person, exceeds the person's net income before after-tax gain or
loss on any sale of assets, as determined in accordance with generally
accepted accounting principles, for the prior fiscal year. A
distribution by a person to a member of its controlled group is
disregarded.
(b) Determination rules. For purposes of paragraph (a) of this
section, the net value of a non-cash distribution is the fair market
value of assets transferred by the person making the distribution,
reduced by the fair market value of any liabilities assumed or
consideration given by the recipient in connection with the
distribution. Net value determinations should be based on readily
available fair market value(s) or independent appraisal(s) performed
within one year before the distribution is made. To the extent that
fair market values are not readily available and no such appraisals
exist, the fair market value of an asset transferred in connection with
a distribution or a liability assumed by a recipient of a distribution
is deemed to be equal to 200 percent of the book value of the asset or
liability on the books of the person making the distribution. Stock
redeemed is deemed to have no value.
(c) Waivers--(1) Extraordinary dividends and stock redemptions.
Notice under this section of the reportable event described in section
4043(c)(11) of ERISA related to extraordinary dividends and stock
redemptions is waived except to the extent reporting is required under
this section.
(2) De minimis 10-percent segment. Notice under this section is
waived if the person making the distribution is a de minimis 10-percent
segment of the plan's controlled group for the most recent fiscal
year(s) ending on or before the date the reportable event occurs.
(3) Foreign entity. Notice under this section is waived if the
person making the distribution is a foreign entity other than a foreign
parent.
(4) Current-year small plan. Notice under this section is waived if
the plan had fewer than 100 participants for whom flat-rate premiums
were payable for the plan year preceding the event year.
(5) Financial soundness. Notice under this section is waived if--
(i) For each contributing sponsor of the plan, either the sponsor
or the sponsor's highest level controlled group parent that is a U.S.
entity is financially sound when the event occurs, or
(ii) The plan is financially sound for the plan year in which the
event occurs.

Sec. 4043.32 Transfer of benefit liabilities.

(a) Reportable event. A reportable event occurs for a plan when--
(1) The plan makes a transfer of benefit liabilities to a person,
or to a plan or plans maintained by a person or persons, that are not
members of the transferor plan's controlled group; and
(2) The amount of benefit liabilities transferred, in conjunction
with other benefit liabilities transferred during the 12-month period
ending on the date of the transfer, is 3 percent or more of the plan's
total benefit liabilities. Both the benefit liabilities transferred and
the plan's total benefit liabilities are to be valued as of any one
date in the plan year in which the transfer occurs, using actuarial
assumptions that comply with section 414(l) of the Code.
(b) Determination rules--(1) Date of transfer. The date of transfer
is to be determined on the basis of the facts and circumstances of the
particular situation. For transfers subject to the requirements of
section 414(l) of the Code, the date determined in accordance with 26
CFR 1.414(l)-1(b)(11) will be considered the date of transfer.
(2) Distributions of lump sums and annuities. For purposes of
paragraph (a) of this section, the payment of a lump sum, or purchase
of an irrevocable commitment to provide an annuity, in satisfaction of
benefit liabilities is not a transfer of benefit liabilities.
(c) Waivers--(1) Current-year small plan. Notice under this section
is waived if the plan had fewer than 100 participants for whom flat-
rate premiums were payable for the plan year preceding the event year.
(2) Financial soundness. Notice under this section is waived if,
for both the transferor plan (if it survives the transfer) and the
transferee plan--
(i) For each contributing sponsor of the plan, either the sponsor
or the sponsor's highest level controlled group parent that is a U.S.
entity is financially sound when the transfer occurs, or
(ii) The plan is financially sound for the plan year in which the
transfer occurs.

Sec. 4043.33 Application for minimum funding waiver.

A reportable event for a plan occurs when an application for a
minimum funding waiver for the plan is submitted under section 302(c)
of ERISA or section 412(c) of the Code.

Sec. 4043.34 Loan default.

(a) Reportable event. A reportable event occurs for a plan when,
with respect to a loan with an outstanding balance of $10 million or
more to a member of the plan's controlled group--
(1) There is an acceleration of payment or a default under the loan
agreement, or
(2) The lender waives or agrees to an amendment of any covenant in
the loan agreement for the purpose of avoiding a default.
(b) Notice date. The notice date is 30 days after the person
required to report knows or has reason to know of an acceleration or
default under paragraph

[[Page 20065]]

(a)(1) of this section, without regard to the time of any other
conditions required for the acceleration or default to be reportable.
(c) Waivers--(1) De minimis 10-percent segment. Notice under this
section is waived if the debtor is not a contributing sponsor of the
plan and represents a de minimis 10-percent segment of the plan's
controlled group for the most recent fiscal year(s) ending on or before
the date the reportable event occurs.
(2) Foreign entity. Notice under this section is waived if the
debtor is a foreign entity other than a foreign parent.

Sec. 4043.35 Insolvency or similar settlement.

(a) Reportable event. A reportable event occurs for a plan when any
member of the plan's controlled group--
(1) Commences or has commenced against it any insolvency proceeding
(including, but not limited to, the appointment of a receiver) other
than a bankruptcy case under the Bankruptcy Code;
(2) Commences, or has commenced against it, a proceeding to effect
a composition, extension, or settlement with creditors;
(3) Executes a general assignment for the benefit of creditors; or
(4) Undertakes to effect any other nonjudicial composition,
extension, or settlement with substantially all its creditors.
(b) Waivers--(1) De minimis 10-percent segment. Notice under this
section is waived if the person described in paragraph (a) of this
section is not a contributing sponsor of the plan and represents a de
minimis 10-percent segment of the plan's controlled group for the most
recent fiscal year(s) ending on or before the date the reportable event
occurs.
(2) Foreign entity. Notice under this section is waived if the
person described in paragraph (a) of this section is a foreign entity
other than a foreign parent.

Subpart C--Advance Notice of Reportable Events

Sec. 4043.61 Advance reporting filing obligation.

(a) In general. Unless a waiver or extension applies with respect
to the plan, each contributing sponsor of a plan is required to notify
PBGC no later than 30 days before the effective date of a reportable
event described in this subpart C if the contributing sponsor is
subject to advance reporting for the reportable event. If there is a
change in contributing sponsor, the reporting obligation applies to the
person who is the contributing sponsor of the plan on the notice date.
(b) Persons subject to advance reporting. A contributing sponsor of
a plan is subject to the advance reporting requirement under paragraph
(a) of this section for a reportable event if--
(1) On the notice date, neither the contributing sponsor nor any
member of the plan's controlled group to which the event relates is a
person subject to the reporting requirements of section 13 or 15(d) of
the Securities Exchange Act of 1934 or a subsidiary (as defined for
purposes of the Securities Exchange Act of 1934) of a person subject to
such reporting requirements; and
(2) The aggregate unfunded vested benefits, determined in
accordance with paragraph (c) of this section, are more than $50
million; and
(3) The aggregate value of plan assets, determined in accordance
with paragraph (c) of this section, is less than 90 percent of the
aggregate premium funding target, determined in accordance with
paragraph (c) of this section.
(c) Funding determinations. For purposes of paragraph (b) of this
section, the aggregate unfunded vested benefits, aggregate value of
plan assets, and aggregate premium funding target are determined by
aggregating the unfunded vested benefits, values of plan assets, and
premium funding targets (respectively), as determined for premium
purposes in accordance with part 4006 of this chapter for the plan year
preceding the effective date of the event, of plans maintained (on the
notice date) by the contributing sponsor and any members of the
contributing sponsor's controlled group, disregarding plans with no
unfunded vested benefits (as so determined).
(d) Shortening of 30-day period. Pursuant to Sec. 4043.3(d), PBGC
may, upon review of an advance notice, shorten the notice period to
allow for an earlier effective date.

Sec. 4043.62 Change in contributing sponsor or controlled group.

(a) Reportable event. Advance notice is required for a change in a
plan's contributing sponsor or controlled group, as described in Sec.
4043.29(a).
(b) Waivers--(1) Small and mid-size plans. Notice under this
section is waived with respect to a change of contributing sponsor if
the transferred plan has fewer than 500 participants.
(2) De minimis 5-percent segment. Notice under this section is
waived if the person or persons that will cease to be members of the
plan's controlled group represent a de minimis 5-percent segment of the
plan's old controlled group for the most recent fiscal year(s) ending
on or before the effective date of the reportable event.

Sec. 4043.63 Liquidation.

(a) Reportable event. Advance notice is required for a liquidation
of a member of a plan's controlled group, as described in Sec.
4043.30.
(b) Waiver--de minimis 5-percent segment and ongoing plans. Notice
under this section is waived if the person that liquidates is a de
minimis 5-percent segment of the plan's controlled group for the most
recent fiscal year(s) ending on or before the effective date of the
reportable event, and each plan that was maintained by the liquidating
member is maintained by another member of the plan's controlled group.

Sec. 4043.64 Extraordinary dividend or stock redemption.

(a) Reportable event. Advance notice is required for a distribution
by a member of a plan's controlled group, as described in Sec.
4043.31(a).
(b) Waiver--de minimis 5-percent segment. Notice under this section
is waived if the person making the distribution is a de minimis 5-
percent segment of the plan's controlled group for the most recent
fiscal year(s) ending on or before the effective date of the reportable
event.

Sec. 4043.65 Transfer of benefit liabilities.

(a) Reportable event. Advance notice is required for a transfer of
benefit liabilities, as described in Sec. 4043.32(a).
(b) Waivers--(1) Complete plan transfer. Notice under this section
is waived if the transfer is a transfer of all of the transferor plan's
benefit liabilities and assets to one other plan.
(2) Transfer of less than 3 percent of assets. Notice under this
section is waived if the value of the assets being transferred--
(i) Equals the present value of the accrued benefits (whether or
not vested) being transferred, using actuarial assumptions that comply
with section 414(l) of the Code; and
(ii) In conjunction with other assets transferred during the same
plan year, is less than 3 percent of the assets of the transferor plan
as of at least one day in that year.
(3) Section 414(l) safe harbor. Notice under this section is waived
if the benefit liabilities of 500 or fewer participants are transferred
and the transfer complies with section 414(l) of the Code using the
actuarial assumptions prescribed for valuing benefits in trusteed plans
under Sec. 4044.51-57 of this chapter.

[[Page 20066]]

(4) Fully funded plans. Notice under this section is waived if the
transfer complies with section 414(l) of the Code using reasonable
actuarial assumptions and, after the transfer, the transferor and
transferee plans are fully funded as determined in accordance with
Sec. Sec. 4044.51 through 4044.57 of this chapter (dealing with
valuation of benefits and assets in trusteed terminating plans) and
Sec. 4010.8(d)(1)(ii) of this chapter.

Sec. 4043.66 Application for minimum funding waiver.

(a) Reportable event. Advance notice is required for an application
for a minimum funding waiver, as described in Sec. 4043.33.
(b) Extension. The notice date is extended until 10 days after the
reportable event has occurred.

Sec. 4043.67 Loan default.

Advance notice is required for an acceleration of payment, a
default, a waiver, or an agreement to an amendment with respect to a
loan agreement described in Sec. 4043.34(a).

Sec. 4043.68 Insolvency or similar settlement.

(a) Reportable event. Advance notice is required for an insolvency
or similar settlement, as described in Sec. 4043.35.
(b) Extension. For a case or proceeding under Sec. 4043.35(a)(1)
or (2) that is not commenced by a member of the plan's controlled
group, the notice date is extended to 10 days after the commencement of
the case or proceeding.

Subpart D--Notice of Failure to Make Required Contributions

Sec. 4043.81 PBGC Form 200, notice of failure to make required
contributions; supplementary information.

(a) General rules. To comply with the notification requirement in
section 303(k)(4) of ERISA and section 430(k)(4) of the Code, a
contributing sponsor of a single-employer plan that is covered under
section 4021 of ERISA and, if that contributing sponsor is a member of
a parent-subsidiary controlled group, the ultimate parent must complete
and submit in accordance with this section a properly certified Form
200 that includes all required documentation and other information, as
described in the related filing instructions. Notice is required
whenever the unpaid balance of a contribution payment required under
sections 302 and 303 of ERISA and sections 412 and 430 of the Code
(including interest), when added to the aggregate unpaid balance of all
preceding such payments for which payment was not made when due
(including interest), exceeds $1 million.
(1) Form 200 must be filed with PBGC no later than 10 days after
the due date for any required payment for which payment was not made
when due.
(2) If a contributing sponsor or the ultimate parent completes and
submits Form 200 in accordance with this section, PBGC will consider
the notification requirement in section 303(k)(4) of ERISA and section
430(k)(4) of the Code to be satisfied by all members of a controlled
group of which the person who has filed Form 200 is a member.
(b) Supplementary information. If, upon review of a Form 200, PBGC
concludes that it needs additional information in order to make
decisions regarding enforcement of a lien imposed by section 303(k) of
ERISA and section 430(k) of the Code, PBGC may require any member of
the contributing sponsor's controlled group to supplement the Form 200
in accordance with Sec. 4043.3(d).
(c) Ultimate parent. For purposes of this section, the term
``ultimate parent'' means the parent at the highest level in the chain
of corporations and/or other organizations constituting a parent-
subsidiary controlled group.

PART 4204--VARIANCES FOR SALE OF ASSETS

0
7. The authority citation for part 4204 continues to read as follows:

Authority: 29 U.S.C. 1302(b)(3), 1384(c).

Sec. 4204.12 [Amended]

0
8. Section 4204.12 is amended by removing the figures ``412(b)(3)(A)''
and adding in their place the figures ``431(b)(3)(A)''.

PART 4206--ADJUSTMENT OF LIABILITY FOR A WITHDRAWAL SUBSEQUENT TO A
PARTIAL WITHDRAWAL

0
9. The authority citation for part 4206 continues to read as follows:

Authority: 29 U.S.C. 1302(b)(3) and 1386(b).

Sec. 4206.7 [Amended]

0
10. Section 4206.7 is amended by removing the figures ``412(b)(4)'' and
adding in their place the figures ``431(b)(5)''.

PART 4231--MERGERS AND TRANSFERS BETWEEN MULTIEMPLOYER PLANS

0
11. The authority citation for part 4231 continues to read as follows:

Authority: 29 U.S.C. 1302(b)(3), 1411.

Sec. 4231.2 [Amended]

0
12. In Sec. 4231.2, the definitions of ``actuarial valuation'' and
``fair market value of assets'' are amended by removing the words
``section 302 of ERISA and section 412 of the Code'' where they appear
in each definition and adding in their place the words ``section 304 of
ERISA and section 431 of the Code''.

Sec. 4231.6 [Amended]

0
13. In Sec. 4231.6:
0
a. Paragraph (b)(4)(ii) is amended by removing the figures
``412(b)(4)'' and adding in their place the figures ``431(b)(5)''.
0
b. Paragraph (c)(2) is amended by removing the words ``section 412 of
the Code (which requires that such assumptions be reasonable in the
aggregate)'' and adding in their place the words ``section 431 of the
Code (which requires that each such assumption be reasonable)''.
0
c. Paragraph (c)(5) is amended by removing the figures ``412'' and
adding in their place the figures ``431''.

Issued in Washington, DC, this 25th day of March 2013.
Joshua Gotbaum,
Director, Pension Benefit Guaranty Corporation.
[FR Doc. 2013-07664 Filed 4-2-13; 8:45 am]
BILLING CODE 7709-01-P