Opinion Letter Program procedures

Overview

PBGC’s Office of the General Counsel answers inquiries from individuals and organizations, whenever appropriate, about compliance with Title IV of ERISA and the effects of their acts or transactions. One of the approaches that PBGC uses is to issue opinion letters.

Below are the general procedures the Pension Benefit Guaranty Corporation (PBGC) follows in issuing opinion letters regarding matters subject to Title IV of the Employee Retirement Income Security Act of 1974 (Pub. L. 93-406) (ERISA). These procedures include instructions to assist individuals and organizations, and their authorized representatives, in preparing and submitting a request for an opinion letter.  

Definitions

An opinion letter is a written statement issued to an individual or organization, or to the authorized representative of such individual or organization, by PBGC’s Office of the General Counsel that interprets and applies Title IV of ERISA to a specific factual situation.

Who may request an opinion letter 

1. Any individual or organization affected directly or indirectly by Title IV of ERISA may request an opinion letter from PBGC.
    
2. An opinion letter request by or for an individual or organization must be signed by the individual or organization, or by the authorized representative of such individual or organization.

Instructions for requesting an opinion letter from PBGC

Email your request to OpinionRequest@pbgc.gov. Be sure to send it from an email address that can receive a confirmation email from pbgc.gov. You will receive a receipt response by email.

A request for an opinion letter must contain the following information:

1. The name of the plan or plans at issue, the associated Employer Identification Number (EIN), and the Plan Number (PN).
    
2. A detailed description of the act(s) or transaction(s) with respect to which an opinion is requested. Where the request pertains to only one step of a larger integrated act or transaction, the facts, circumstances, etc., must be submitted with respect to the entire transaction. In addition, a copy of all documents submitted must be included in the individual’s or organization’s statement and not merely incorporated by reference and must be accompanied by an analysis of their bearing on the issue or issues, specifying the pertinent provisions.
    
3. A discussion of the issue(s) presented by the act(s) or transaction(s)that should be addressed in the opinion letter.
    
4. If the individual or organization is requesting a particular answer from PBGC in the opinion letter, the requesting party must furnish an explanation of the grounds for reaching that answer, together with a statement of relevant supporting authority. Even where the individual or organization is urging no particular determination about a proposed or prospective act(s) or transaction(s), the party requesting should state its views as to the proposed transaction and cite to relevant authority.
    
5. A request for an opinion letter must be signed by the individual or organization, or by that individual’s or organization’s authorized representative, who is making the request.
    
6. A request for an opinion letter that does not comply with all the provisions of this procedure will not be considered for a responsive PBGC opinion.
    
7. PBGC will process requests for opinion letters in regular order and as expeditiously as possible. Requests for expedited processing ahead of the regular order must be made in writing (submitted with the request or subsequent thereto) and show clear need for such treatment. However, no assurance can be given that any letter will be processed by the time requested or that PBGC will issue an opinion letter.
    
8. An individual or organization, or the authorized representative, desiring status information relating to the request for an opinion letter may do so by contacting the Office of the General Counsel via email (OpinionRequest@pbgc.gov).

Withdrawal of requests 

An individual or organization’s request for an opinion letter may be withdrawn at any time prior to receiving notice that PBGC intends to issue an opinion letter. Even though a request is withdrawn, all correspondence and exhibits will be retained by PBGC and will not be returned to the individual or organization.

Discretionary authority to render opinion letters

1. PBGC, in its discretion, will issue opinion letters involving the interpretation and application of one or more sections of Title IV of ERISA, regulations promulgated under Title IV of ERISA, or other published PBGC guidance to a specific factual situation. Examples of subject areas where an opinion letter request would be appropriate are questions about premium liabilities and payments, standard termination procedures, and compliance with reportable event obligations.
    
2. Opinion letters will be issued only with respect to prospective transactions or factual circumstances. Generally, PBGC will not issue an opinion letter on a hypothetical situation, alternative courses of proposed transactions where all parties involved are not sufficiently identified and described, or where material facts or details of the transaction are omitted.
    
3. PBGC will not issue opinion letters for use in any investigation or litigation matter that existed before submitting your request.
    
4. PBGC will not issue opinion letters on issues where another agency has interpretive authority, such as minimum funding (Treasury Department) or fiduciary obligations (Department of Labor).
    

5. PBGC ordinarily will not issue opinion letters on the following subjects:

   • Coverage determination requests;
   • Subjects addressed in pending PBGC rulemaking; and
   • Individual benefit determinations.

   This list is not exhaustive, and PBGC may decline to issue opinion letters whenever warranted by the facts and circumstances of a particular request. PBGC may, when it is deemed appropriate and in the best interest of sound administration of Title IV of ERISA, refer the request to the appropriate PBGC operating unit (e.g., PBGC’s Financial Operations Department on premiums issues) for response in another format.
    

6. In addition to requests from the public, PBGC may issue an opinion letter on its own initiative when it is determined to be appropriate.

Effect of an opinion letter

An opinion letter by PBGC addressing the application of one or more sections of Title IV of ERISA, regulations promulgated under Title IV of ERISA, or other PBGC published guidance assumes that all material facts and representations set forth in the request are accurate and apply only to the situation described therein. Only the parties described in the request for an opinion may rely on the opinion, and they may rely on the opinion only to the extent that the request fully and accurately contains all the material facts and representations necessary to the issuance of the opinion and the situation conforms to the situation described in the request for an opinion.

An opinion letter issued by PBGC is informational-only for all others and is not binding on PBGC.

Public inspection

Opinion letters shall be open to public inspection through PBGC’s Electronic Reading Room. Background files, including the request for an opinion letter, correspondence between PBGC and the party requesting the opinion letter, shall be available upon written request to disclosure@pbgc.gov. Background files may be destroyed three years after the date of issuance.

Opinion letters will be modified to delete references to personally identifiable information and proprietary information prior to disclosure. Any information considered to be proprietary should be identified in a separate letter at the time of request. Other than personally identifiable information and proprietary information, all materials contained in the public files shall be available for inspection.

PBGC will assess charges to cover the direct costs of searching for, reviewing, and/or duplicating records requested.

For more information about public inspection, please see PBGC’s regulation, Disclosure and Public Inspection of Pension Benefit Guaranty Corporation Records (29 CFR part 4901).