[Federal Register Volume 66, Number 9 (Friday, January 12, 2001)]
[Proposed Rules]
[Pages 2856-2866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-686]


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PENSION BENEFIT GUARANTY CORPORATION

29 CFR Parts 4003, 4007, and 4071

RIN 1212-AA95


Assessment of and Relief From Penalties

AGENCY: Pension Benefit Guaranty Corporation.

ACTION: Proposed rule.

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SUMMARY: The PBGC has issued a number of policy statements about 
penalties over the last few years. Some of these policy statements have 
been incorporated into the PBGC's regulations. For the convenience of 
the

[[Page 2857]]

public, the PBGC is now proposing to codify in its regulations an 
expanded version of the remaining penalty policy statements. Among 
other things, this expanded version of the PBGC's penalty policies 
would explain in general terms the meaning of ``reasonable cause'' for 
penalty waivers and the guidelines for assessing penalties under ERISA 
section 4071.

DATES: Comments must be received on or before March 13, 2001.

ADDRESSES: Comments may be mailed to the Office of the General Counsel, 
Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, 
DC 20005-4026, or delivered to Suite 340 at the above address. Comments 
also may be sent by Internet e-mail to [email protected]. Comments 
will be available for inspection at the PBGC's Communications and 
Public Affairs Department in Suite 240 at the above address during 
normal business hours.

FOR FURTHER INFORMATION CONTACT: Harold J. Ashner, Assistant General 
Counsel, or Deborah C. Murphy, Attorney, Pension Benefit Guaranty 
Corporation, Office of the General Counsel, Suite 340, 1200 K Street, 
NW., Washington, DC 20005-4026, 202-326-4024. (For TTY/TTD users, call 
the Federal relay service toll-free at 1-800-877-8339 and ask to be 
connected to 202-326-4024.)

SUPPLEMENTARY INFORMATION: The PBGC administers the pension plan 
termination insurance program under Title IV of the Employee Retirement 
Income Security Act of 1974 (ERISA). When a single-employer plan 
terminates without sufficient assets to provide all benefits, the PBGC 
steps in to ensure that participants and beneficiaries receive their 
plan benefits, subject to certain legal limits. The PBGC also provides 
financial assistance to multiemployer plans that become unable to pay 
benefits.
    ERISA and the PBGC's regulations require the payment of premiums to 
the PBGC and the providing of certain information to the PBGC and to 
other persons. To promote the effective operation of the insurance 
program under Title IV, ERISA authorizes the PBGC to assess penalties 
if premiums are paid late and if certain notices and other material 
information are not timely provided. (See ERISA sections 4007 and 4071 
and the PBGC's regulations on Payment of Premiums (29 CFR Part 4007) 
and Penalties for Failure to Provide Certain Notices or Other Material 
Information (29 CFR Part 4071).) The PBGC has published four notices in 
the Federal Register since mid-1995 describing its penalty policies 
under sections 4007 and 4071.
    This proposed rule would expand and codify the policies described 
in two of those notices: those published July 18, 1995 (60 FR 36837), 
and December 17, 1996 (61 FR 66338). (The 1995 notice in turn replaced 
an earlier penalty policy notice published March 3, 1992 (at 57 FR 
7605).) The policy guidance would be placed in appendices to the 
premium payment regulation and the regulation on Penalties for Failure 
to Provide Certain Notices or Other Material Information. In addition, 
the PBGC's regulation on Rules for Administrative Review of Agency 
Decisions (29 CFR Part 4003) would be amended to cover penalties 
assessed under section 4071.
    The policies described in the other two notices have already been 
codified in PBGC regulations.
     The PBGC's regulations on Termination of Single-Employer 
Plans (29 CFR Part 4041) and Missing Participants (29 CFR Part 4050) 
reflect the PBGC's Statement of Policy published March 14, 1997 (at 62 
FR 12521), announcing penalty relief for late filing of post-
distribution certifications in connection with a plan termination.
     Section 4007.8 of the PBGC's premium payment regulation 
reflects the PBGC's Statement of Policy published December 2, 1996 (at 
61 FR 63874), announcing a new policy regarding the rate at which 
premium penalties accrue (1 percent or 5 percent per month depending on 
whether the premium underpayment is self-corrected).

Thus, once the amendments in this rule became effective, all of the 
PBGC's penalty policies under sections 4007 and 4071 would be in the 
Code of Federal Regulations. (This rule does not deal with penalties 
under ERISA section 4302, which applies only to multiemployer plans.)
    This rule would not affect the use of any other remedies available 
to the PBGC and would not address the settlement of legal disputes 
involving penalties, either alone or in the context of other legal 
issues.

Compliance With Rulemaking Guidelines

    The PBGC has determined that this action is not a ``significant 
regulatory action'' under the criteria set forth in Executive Order 
12866.
    Although the PBGC is publishing this rule as a proposed rule, the 
rule is not subject to notice and comment rulemaking requirements under 
section 553 of the Administrative Procedure Act because it deals only 
with general statements of PBGC policy and with PBGC procedural rules. 
Because no general notice of proposed rulemaking is required, the 
Regulatory Flexibility Act does not apply. See 5 U.S.C. 601(2), 603, 
604.

List of Subjects

29 CFR Part 4003

    Administrative practice and procedure, Organization and functions 
(Government agencies), Pension insurance, Pensions.

29 CFR Part 4007

    Penalties, Pension insurance, Pensions, Reporting and recordkeeping 
requirements.

29 CFR Part 4071

    Penalties.
    For the reasons given above, the PBGC proposes to amend 29 CFR 
parts 4003, 4007, and 4071 as follows.

PART 4003--RULES FOR ADMINISTRATIVE REVIEW OF AGENCY DECISIONS

    1. The authority citation for part 4003 continues to read as 
follows:

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

    2. In Sec. 4003.1, paragraph (a) is amended by removing the words 
``(b)(1) through (b)(4)'' and adding in their place the words ``(b)(1) 
through (b)(5)'' and by removing the words ``(b)(5) through (b)(10)'' 
and adding in their place the words ``(b)(6) through (b)(11)''; 
paragraphs (b)(5) through (b)(10) are redesignated as paragraphs (b)(6) 
through (b)(11); and a new paragraph (b)(5) is added to read as 
follows:


Sec. 4003.1  Purpose and scope.

* * * * *
    (b) Scope. * * *
* * * * *
    (5) Determinations with respect to penalties under section 4071 of 
ERISA.
* * * * *

PART 4007--PAYMENT OF PREMIUMS

    3. The authority citation for part 4007 continues to read as 
follows:

    Authority: 29 U.S.C. 1302(b)(3), 1303(a), 1306, 1307.

    4. In Sec. 4007.8, the introductory text of paragraph (a) is 
amended by removing the words ``The charge will be based on'' and 
adding in their place the words ``The amount determined under this 
paragraph (a) will be based on''; and paragraphs (c) and (d) are 
revised to read as follows:


Sec. 4007.8  Late payment penalty charges.

* * * * *

[[Page 2858]]

    (c) Reasonable cause waivers. The PBGC will waive all or part of a 
late payment penalty charge if the PBGC determines that there is 
reasonable cause for the late payment. Policy guidelines for applying 
the ``reasonable cause'' standard are in Secs. 32 through 35 of the 
Appendix to this part.
    (d) Other waivers. The PBGC may waive all or part of a late payment 
penalty charge in other circumstances without regard to whether there 
is reasonable cause. Policy guidelines for waivers without reasonable 
cause are in Sec. 31(b)(1), (b)(3), and (b)(4) of the Appendix to this 
part.
* * * * *
    5. An appendix is added to part 4007 to read as follows:

Appendix to Part 4007--Policy Guidelines on Penalties

Sec.

General Provisions

1  What is the purpose of this Appendix?
2  What defined terms are used in this Appendix?
3  What is the purpose of a premium penalty?

Procedures

11  What are the basic rules for assessing and reviewing premium 
penalties?
12  What should I know about preliminary notices of premium 
penalties?
13  What should I know about premium penalty determinations?
14  What should I know about review of premium penalty 
determinations?

Premium Penalty Assessment

21  What are the rules for assessing a premium penalty?
22  How do premium penalties apply to small plans?

Waiver Standards

31  What are the standards for waiving a premium penalty?
32  What is ``reasonable cause''?
33  What kinds of facts does the PBGC consider in determining 
whether there is reasonable cause for a failure to pay a premium?
34  What are some situations that might justify a ``reasonable 
cause'' waiver?
35  What are some situations that might justify a partial 
``reasonable cause'' waiver?

General Provisions

Section 1 What Is the Purpose of this Appendix?

    This appendix sets forth principles and guidelines that we 
intend to follow in assessing, reviewing, and waiving premium 
penalties. However, this is only general policy guidance. Our action 
in each case is guided by the facts and circumstances of the case.

Section 2 What Defined Terms Are Used in This Appendix?

    The following terms are defined in part 4001 of this chapter: 
contributing sponsor, ERISA, PBGC, person, plan, and plan 
administrator. In addition, in this appendix:
    (a) Premium penalty means a penalty under ERISA section 4007 and 
Sec. 4007.8 of this part for failing to pay all or part of a premium 
on time.
    (b) Waiver means reduction or elimination of a premium penalty 
that is being or has been assessed.
    (c) We means the PBGC.
    (d) You means (according to the context) --
    (1) A plan administrator, contributing sponsor, or other person, 
if --
    (i) The person's action or inaction may be the basis for a 
premium penalty assessment,
    (ii) The person may be required to pay the premium penalty, or
    (iii) The person is requesting review of the premium penalty; or
    (2) An employee or agent of, or advisor to, any of these 
persons.

Section 3 What Is the Purpose of a Premium Penalty?

    The basic purpose of a premium penalty is to encourage you to 
pay premiums on time. Premium penalties should be fair, simple, 
effective, and easy to administer. Therefore,--
    (a) We assess a lower (one percent) premium penalty if you 
correct a premium underpayment yourself before we issue a written 
notice that there is or may be a premium delinquency;
    (b) We assess a higher (five percent) premium penalty if you do 
not self-correct before we issue a notice; and
    (c) We waive premium penalties, in whole or in part, if there is 
reasonable cause or in other appropriate circumstances.

Procedures

Section 11 What Are the Basic Steps for Assessing and Reviewing 
Premium Penalties?

    (a) Overview. There are typically three steps in the premium 
penalty assessment and review process:
    (1) A preliminary notice (discussed in Sec. 12), which gives you 
an opportunity to submit information relating to the premium penalty 
assessment, or to simply pay the amount owed;
    (2) A premium penalty determination (discussed in Sec. 13) that 
assesses the premium penalty; and
    (3) A review of the premium penalty determination (discussed in 
Sec. 14).
    (b) Relationship to premium procedures. (1) When we assess a 
premium penalty for a late premium payment, the late payment often 
has already been made. However, if the premium has not been paid 
when we assess a premium penalty, we will generally assess and 
review the premium (and any related interest) at the same time as we 
assess and review the penalty. Differences in premium penalty 
procedures depending on whether the premium has or has not been paid 
are noted in Secs. 12 and 13.
    (2) A premium penalty stops accruing when the premium is paid.
    (c) Debt collection. Our regulation on Debt Collection (29 CFR 
Part 4903) provides that we may collect amounts that you owe to us 
(such as premium penalties) by reducing other amounts that the 
government owes to you (such as tax refunds). Procedures under our 
debt collection regulation may run separately or together with the 
premium penalty assessment and review procedures.
    (d) Decision-making standards and guidelines. At each stage of 
the premium penalty assessment and review process, we evaluate the 
circumstances by the same standards and apply the same guidelines in 
deciding whether to assess or waive a premium penalty and how much 
the premium penalty should be. However, we may have more information 
when we review a premium penalty than we had when we originally 
assessed it, and that may make our decision on review different from 
our original premium penalty determination.
    (e) Providing information to the PBGC. (1) It is your 
responsibility to raise any facts and issues that you want us to 
consider in making premium penalty assessment or waiver decisions 
and to support your contentions with documentation such as 
correspondence and police, fire, or insurance reports. If you want 
us to consider information that you believe we already have in 
connection with another case, you should identify the information 
specifically enough so that we can determine whether we have the 
information, locate it in our files, and review it.
    (2) Since premium penalties are assessed for paying a premium 
late, it is important that you bring to our attention any 
information or arguments that tend to show that you were not 
required to pay a premium or that you paid the premium on time.
    (f) Terminology. There is a slight difference between the 
terminology we use in this appendix and the terminology we use in 
our regulation on Rules for Administrative Review of Agency 
Decisions (29 CFR Part 4003), which governs our issuance and review 
of premium penalty determinations:
    (1) ``Initial determination'' in the administrative review 
regulation means the same as ``premium penalty determination'' in 
this appendix, and
    (2) ``Reconsideration of an initial determination'' in the 
administrative review regulation means the same as ``review of a 
premium penalty determination'' in this appendix.

Section 12  What Should I Know About Preliminary Notices of Premium 
Penalties?

    Before we make a premium penalty determination, we want you to 
have an opportunity to give us any information you think we should 
consider. In most cases, therefore, we send a preliminary notice to 
tell you that we intend to assess a premium penalty and the reason 
for the premium penalty. (In some cases, we may skip this 
preliminary step--for example, if we contact you by telephone to 
discuss the matter or if we need to make the assessment quickly in 
order to preserve our right to collect the premium penalty in 
court.) You may respond to a preliminary notice by submitting any 
information you want us to consider before we make a premium penalty 
determination. The preliminary notice will state the time within 
which you should respond (typically 30 days).
    (a) If premium already paid. If, by the time we issue a 
preliminary notice stating that we

[[Page 2859]]

intend to assess a premium penalty, you have already paid the late 
premium, the notice ordinarily tells you the amount of the premium 
penalty that we intend to assess. (The notice also ordinarily tells 
you the amount of any interest due on the late premium.) If you pay 
the amount stated in the preliminary notice without requesting 
relief, that is the end of the matter.
    (b) If premium not already paid. If, by the time we issue a 
preliminary notice stating that we intend to assess a premium 
penalty, you have not already paid the late premium, the notice 
ordinarily tells you the amount of premium due and the amount of the 
premium penalty that has accrued up through the date of the 
preliminary notice. (The preliminary notice also ordinarily tells 
you the amount of interest that has accrued on the late premium up 
through the date of the preliminary notice.) If you pay the amount 
stated in the preliminary notice within 30 days after the date of 
the preliminary notice without requesting relief, that is the end of 
the matter. If you do not pay the amount of unpaid premium within 30 
days after the date of the preliminary notice, the premium penalty 
will continue to accrue (subject to the premium penalty cap).

Section 13  What Should I Know About Premium Penalty 
Determinations?

    As the second step in the premium penalty assessment and review 
process--after a preliminary notice--we make a premium penalty 
determination (unless, in response to the preliminary notice, you 
pay the full premium penalty without requesting relief). (If we skip 
the preliminary notice step, the premium penalty assessment is the 
first step in the process.) The premium penalty determination 
notifies you of the reason for the premium penalty (even if we have 
already issued a preliminary notice stating the reason) and takes 
into account any information you may have submitted to us in 
response to a preliminary notice. We also tell you when and where to 
send your payment, and we tell you about requesting review of the 
premium penalty determination. (Complete rules for premium penalty 
determinations and for requesting review are in part 4003 of this 
chapter.)
    (a) If premium already paid. If, by the time we issue a premium 
penalty determination, you have already paid the late premium, the 
determination tells you the amount of the premium penalty that we 
are assessing (taking into account any waiver of all or part of the 
premium penalty) and how we determined the amount of the premium 
penalty. (The premium penalty determination also ordinarily tells 
you the amount of any interest due on the late premium.) If you pay 
the amount stated in the premium penalty determination without 
requesting review, that is the end of the matter.
    (b) If premium not already paid. If, by the time we issue a 
premium penalty determination, you have not already paid the late 
premium, the premium penalty determination tells you the amount of 
premium due and the amount of the premium penalty that has accrued 
up through the date of the premium penalty determination. (The 
premium penalty determination also ordinarily tells you the amount 
of interest that has accrued on the late premium up through the date 
of the premium penalty determination.) If you pay the amount stated 
in the premium penalty determination within 30 days after the date 
of the premium penalty determination without requesting review, that 
is the end of the matter. If you do not pay the amount of unpaid 
premium within 30 days after the date of the premium penalty 
determination, the premium penalty will continue to accrue (subject 
to the premium penalty cap).

Section 14  What Should I Know About Review of Premium Penalty 
Determinations?

    (a) Timing. (1) General rule. In general, you must request 
review of a premium penalty determination within 30 days after the 
date of the determination; if you do not do so, the determination 
becomes effective, and we may take steps to collect the premium 
penalty. In addition, you may not be able to raise in court some 
legal defenses that you might have against collection of the premium 
penalty, because you have failed to exhaust administrative remedies. 
(In some cases, the 30-day limitation for requesting review may be 
extended or waived. See Secs. 4003.4 and 4003.5 of the 
administrative review regulation. If we notify you that we may 
attempt to collect a debt resulting from a premium penalty 
determination by referring it for offset against federal payments 
that may be due you, you will have at least 60 days to request 
review. See Sec. 4003.32 of the administrative review regulation.)
    (2) Determinations effective immediately. We may, in our 
discretion, make a premium penalty determination effective on the 
date we issue it--for example, if our ability to bring a collection 
action in court is about to be cut off by the statute of 
limitations. If we make a premium penalty determination effective 
immediately, you are not required to request review by us in order 
to exhaust your administrative remedies. This means that you have 
the right to raise legal defenses against collection of the premium 
penalty in court even if you do not request that we review the 
determination. (See Sec. 4003.22(b) of the administrative review 
regulation.) If you do request review by the PBGC, we may review the 
determination.
    (b) Review of determination. If you request review of a premium 
penalty determination within the required time, we review the 
determination and notify you of the results of the review. This 
review takes into account any information you may have submitted to 
us in response to a preliminary notice or a premium penalty 
determination notice or with your request for review.
    (c) Premium penalty accrual during review. Requesting review of 
a premium penalty does not make the premium penalty stop accruing. A 
premium penalty stops accruing on the date when you pay the premium 
or, if you pay the premium within 30 days after the date of a PBGC 
bill for the premium, on the date of the bill. In addition, if you 
request review of a premium penalty, we may waive the portion of the 
premium penalty that accrues during review if you make a non-
frivolous argument that you were not required to pay the premium, as 
described in Sec. 31(b)(4) of this Appendix.

Premium Penalty Assessment

Section 21 What Are the Rules for Assessing a Premium Penalty?

    The rules for assessing a premium penalty are in Sec. 4007.8 of 
this part. A premium penalty is assessed for failure to pay a 
premium on time. In general, the amount of a premium penalty is 
based on the number of months from the due date to the date of 
payment, subject to a floor of $25 and a ceiling of 100 percent of 
the unpaid premium. The premium penalty rate is generally--
    (a) 1 percent per month (for all months) on any amount of unpaid 
premium that you pay on or before the date we issue a written notice 
that there is or may be a premium delinquency (e.g., a premium bill, 
a letter initiating a premium compliance review, or a letter 
questioning a failure to make a premium filing), or
    (b) 5 percent per month (for all months) on any amount of unpaid 
premium that you pay after that date.

Section 22 How Do Premium Penalties Apply to Small Plans?

    Since small plan premiums are generally lower than large plan 
premiums, premium penalties are also generally lower for small plans 
than for large plans. This is because premium penalties accrue (each 
month) as a percentage of your premium underpayment.

Waiver Standards

Section 31 What Are the Standards for Waiving a Premium Penalty?

    (a) Facts and circumstances. In deciding whether to waive a 
premium penalty in whole or in part, we consider the facts and 
circumstances of each case.
    (b) Waivers. (1) Provisions of law. We waive all or part of a 
premium penalty if a statute or regulation requires that we do so. 
For example, ERISA section 4007(b) and Sec. 4007.8(b) of this part 
provide for a waiver in certain circumstances involving business 
hardship; Sec. 4007.8(f) and (g) of this part provides for waivers 
if certain ``safe harbor'' tests are met; and Sec. 4007.8(e) of this 
part provides for a waiver of any premium penalty that accrues after 
the date of a premium bill if you pay the premium within 30 days 
after the date of the bill.
    (2) Reasonable cause. We waive a premium penalty if you show 
reasonable cause for a failure to pay a premium on time. See 
Secs. 32 through 35 for guidelines on ``reasonable cause'' waivers. 
If there is reasonable cause for only part of a failure to pay a 
premium, we waive the premium penalty only for that part. In 
determining whether ``reasonable cause'' exists, we do not consider 
either--
    (i) The likelihood or cost of collecting the premium penalty, or
    (ii) The costs and risks of enforcing the premium penalty by 
litigation.
    (3) Erroneous legal interpretations. We may waive all or part of 
a premium penalty if the failure to pay a premium on time that gives 
rise to the premium penalty is based on your reliance on an 
erroneous interpretation of the law.

[[Page 2860]]

    (i) If you disclose the interpretation to us. If a failure to 
pay a premium on time results from your reliance on an erroneous 
interpretation of the law, we will waive a premium penalty that 
arises from the failure if you promptly and adequately call our 
attention to the interpretation and the relevant facts, and the 
erroneous interpretation is not frivolous. If the interpretation 
affects a filing that you make with us, you should call our 
attention to the interpretation with the filing. If you rely on the 
interpretation to justify not making a filing with us, you should 
call our attention to the interpretation in a notice submitted to us 
by the time and in the manner prescribed for the filing not made.
    (ii) If you do not disclose the interpretation to us. If a 
failure to pay a premium on time results from your reliance on an 
erroneous interpretation of the law, and you do not promptly and 
adequately call our attention to the interpretation and the relevant 
facts, we may nevertheless waive a premium penalty if the weight of 
authority supporting the interpretation is substantial in relation 
to the weight of opposing authority and it is reasonable for you to 
rely on the interpretation.
    (4) Pendency of review. If you request review of a premium 
penalty (as described in Sec. 14 of this Appendix), and you make a 
non-frivolous argument in your request for review that you were not 
required to pay the premium, we waive the portion of the premium 
penalty that accrues during the review process. (If you make a non-
frivolous argument that you were not required to pay a portion of 
the premium, we apply this rule to that portion.)
    (5) Other circumstances. We may waive all or part of a premium 
penalty in other circumstances if we determine that it is 
appropriate to do so. We intend to exercise this waiver authority 
only in narrow circumstances, primarily if we determine that 
assessing a premium penalty, or assessing the full amount of a 
premium penalty, would be inconsistent with the purposes of Title IV 
of ERISA. For example--
    (i) We may waive all or part of a premium penalty if a premium 
underpayment reflected on a premium form is insignificant and is 
caused by an inadvertent mathematical error (such as a transposition 
of digits) on the form. In determining whether and to what extent to 
grant a waiver in a case of this kind, we consider such factors as 
how insignificant the underpayment is, whether you have a history of 
compliance, and whether the underpayment results from an isolated 
error rather than from a number of errors.
    (ii) We may waive all or part of a premium penalty if the law 
changes shortly before the date a premium payment is due and the 
premium payment that you make by the due date would have been 
correct under the law as in effect before the change. In determining 
whether and to what extent to grant a waiver in a case of this kind, 
we consider such factors as the length of time between the change in 
the law and the premium due date, the nature and timing of any 
publicity given to the change in the law, the complexity of the 
legal issues, and your general familiarity with those issues.
    (c) Action or inaction of outside parties. If an accountant, 
actuary, lawyer, pension consultant, or other individual or firm 
that is not part of your organization assists you in complying with 
PBGC requirements, we apply our waiver authority as if the outside 
individual or firm were part of your organization, as described in 
Sec. 32(c) of this Appendix.

Section 32  What Is ``Reasonable Cause''?

    (a) General rule. In general, there is ``reasonable cause'' for 
a failure to pay a premium on time to the extent that--
    (1) The failure arises from circumstances beyond your control, 
and
    (2) You could not avoid the failure by the exercise of ordinary 
business care and prudence.
    (b) Overlooking legal requirements. Overlooking legal 
requirements does not constitute reasonable cause.
    (c) Action or inaction of outside parties. In some cases an 
accountant, actuary, lawyer, pension consultant, or other individual 
or firm that is not part of your organization may assist you in 
complying with PBGC requirements. If the outside individual's or 
firm's action, inaction, or advice causes or contributes to a 
failure to pay a premium on time, our analysis is generally the same 
as if the outside individual or firm were part of your organization. 
(In the case of an outside individual who is part of a firm, we 
generally consider both the individual and the firm to be part of 
your organization.) Thus, if a failure to pay a premium on time 
arises from circumstances within the control of the outside 
individual or firm, or could be avoided by the exercise of ordinary 
business care and prudence by the outside individual or firm, there 
is generally no reasonable cause for the failure. The fact that you 
exercised care and prudence in selecting and monitoring the outside 
individual or firm is not a basis for a reasonable cause waiver. 
(However, you may have recourse against the outside individual or 
firm.)
    (d) Size of organization. If an organization or one or more of 
its employees is responsible for taking action, the size of the 
organization may affect what ordinary business care and prudence 
would require. For example, ordinary business care and prudence 
would typically require a larger organization to establish more 
comprehensive backup procedures than a smaller organization for 
dealing with situations such as computer failure, the loss of 
important records, and the inability of an individual to carry out 
assigned responsibilities. Thus, there may be reasonable cause for a 
small organization's failure to pay a premium on time even though, 
if the organization were larger, the exercise of ordinary business 
care and prudence would have avoided the failure.
    (e) Amount of premium underpayment. In general, the larger a 
premium, the more care and prudence you should use to make sure that 
you pay it on time. Thus, there may be reasonable cause for a small 
underpayment even though, under the same circumstances, we would 
conclude that a larger underpayment could have been avoided by the 
exercise of ordinary business care and prudence.

Section 33  What Kinds of Facts Does the PBGC Consider in 
Determining Whether There is Reasonable Cause for a Failure to Pay 
a Premium?

    In determining whether a failure to pay a premium on time arose 
from circumstances beyond your control and whether you could have 
avoided the failure by the exercise of ordinary business care and 
prudence--and thus whether waiver of a premium penalty for 
reasonable cause is appropriate--we consider facts such as the 
following:
    (a) What event or circumstance caused the underpayment and when 
the event happened or the circumstance arose. The dates you give 
should clearly correspond with the underpayment upon which the 
premium penalty is based.
    (b) How that event or circumstance kept you from paying the 
premium on time. The explanation you give should relate directly to 
the failure to pay a premium that is the subject of the premium 
penalty.
    (c) Whether the event or circumstance was beyond your control.
    (d) Whether you could have anticipated the event or 
circumstance.
    (e) How you responded to the event or circumstance, including 
what steps you took (and how quickly you took them) to pay the 
premium and how you conducted other business affairs. Knowing how 
you responded to the event or circumstance may help us determine 
what degree of business care and prudence you were capable of 
exercising during that period and thus whether the failure to pay 
the premium could or could not have been avoided by the exercise of 
ordinary business care and prudence.

Section 34  What Are Some Situations That Might Justify a 
``Reasonable Cause'' Waiver?

    The following examples illustrate some of the reasons often 
given for failures to pay premiums for which we may assess 
penalties. The situation described in each example may constitute 
reasonable cause, and each example lists factors we consider in 
determining whether to grant a premium penalty waiver for reasonable 
cause in a case of that kind.
    (a) An individual with responsibility for taking action was 
suddenly and unexpectedly absent or unable to act. We consider such 
factors as the following: the nature of the event that caused the 
individual's absence or inability to act (for example, the 
resignation of the individual or the death or serious illness of the 
individual or a member of the individual's immediate family); the 
size of the organization and what kind of backup procedures it had 
to cope with such events; how close the event was to the deadline 
that was missed; how abrupt and unanticipated the event was; how the 
individual's absence or inability to act prevented compliance; how 
expensive it would have been to comply without the absent 
individual; whether and how other business operations and 
obligations were affected; how quickly and prudently a replacement 
for the absent individual was selected or other arrangements for 
compliance were made; and how quickly a replacement for the absent 
individual took appropriate action.

[[Page 2861]]

    (b) A fire or other casualty or natural disaster destroyed 
relevant records or prevented compliance in some other way. We 
consider such factors as the following: the nature of the event; how 
close the event was to the deadline that was missed; how the event 
caused the failure to pay the premium; whether other efforts were 
made to get needed information; how expensive it would have been to 
comply; and how you responded to the event.
    (c) You reasonably relied on erroneous oral or written advice 
given by a PBGC employee. We consider such factors as the following: 
whether there was a clear relationship between your situation and 
the advice sought; whether you provided the PBGC employee with 
adequate and accurate information; and whether the surrounding 
circumstances should have led you to question the correctness of the 
advice or information provided.
    (d) You were unable to obtain information (including records and 
calculations) needed to comply. We consider such factors as the 
following: what information was needed; why the information was 
unavailable; when and how you discovered that the information was 
not available; what attempts you made to get the information or 
reconstruct it through other means; and how much it would have cost 
to comply.

Section 35  What Are Some Situations That Might Justify a Partial 
``Reasonable Cause'' Waiver?

    (a) Assume that a fire destroyed the records needed to compute a 
premium payment. If in the exercise of ordinary business care and 
prudence it should take you one month to reconstruct the records and 
pay the premium, but the payment was made two months late, it might 
be appropriate to waive that part of the premium penalty 
attributable to the first month the payment was late, but not the 
part attributable to the second month.
    (b) Assume that a plan administrator underpaid the plan's flat-
rate premium because of reasonable reliance on erroneous advice from 
a PBGC employee, and also underpaid the plan's variable-rate premium 
because the plan actuary used the wrong interest rate. A PBGC audit 
revealed both errors. The PBGC billed the plan for a premium penalty 
of $5,000--$1,000 for underpayment of the flat-rate premium and 
$4,000 for underpayment of the variable-rate premium. The plan 
administrator requested a waiver of the premium penalty. While the 
erroneous PBGC advice constituted reasonable cause for underpaying 
the flat-rate premium, there was no showing of reasonable cause for 
the error in the variable-rate premium. Therefore, we would waive 
only the part of the premium penalty based on underpayment of the 
flat-rate portion of the premium ($1,000).

PART 4071--PENALTIES FOR FAILURE TO PROVIDE CERTAIN NOTICES OR 
OTHER MATERIAL INFORMATION

    6. The authority citation for part 4071 is revised to read as 
follows:

    Authority: 28 U.S.C. 2461 note; 29 U.S.C. 1302(b)(3), 1371.

    7. Section 4071.1 is amended by adding at the end of the section 
the following sentence:


Sec. 4071.1  Purpose and scope.

     * * * This part also provides policy guidelines for assessing and 
reviewing penalties under ERISA section 4071.
    8. A new Sec. 4071.4 and a new appendix are added to part 4071 to 
read as follows:


Sec. 4071.4  Assessment and review of penalties.

    Policy guidelines for assessing, reviewing, and waiving penalties 
under ERISA section 4071 are in the Appendix to this part.

Appendix to Part 4071--Policy Guidelines on Penalties

Sec.

General Provisions

1  What is the purpose of this Appendix?
2  What defined terms are used in this Appendix?
3  What is the purpose of an information penalty?

Procedures

11  What are the basic rules for assessing and reviewing information 
penalties?
12  What should I know about preliminary notices of information 
penalties?
13  What should I know about information penalty determinations?
14  What should I know about review of information penalty 
determinations?

Information Penalty Assessment

21  Where can I find the general principles that the PBGC follows in 
assessing information penalties and how the PBGC applies those 
principles to specific cases?
22  What are the general principles that the PBGC follows in 
deciding whether to assess an information penalty and, if so, the 
amount or rate of information penalty to assess?
23  What aggravating factors does the PBGC consider?
24  What mitigating factors does the PBGC consider?
25  What if multiple persons must give a notice?
26  What if multiple persons must get a notice?
27  What if a single event or circumstance leads to multiple 
failures to provide section 4071 information?
28  What special guidance is there for specific types of cases?

Waiver Standards

31  What are the standards for waiving an information penalty?
32  What is ``reasonable cause''?
33  What kinds of facts does the PBGC consider in determining 
whether there is reasonable cause for a failure to provide section 
4071 information?
34  What are some situations that might justify a ``reasonable 
cause'' waiver?
35  What is a situation that might justify a partial ``reasonable 
cause'' waiver?

General Provisions

Section 1  What Is the Purpose of This Appendix?

    Section 4071 of ERISA authorizes us to assess a penalty if you 
do not provide certain notices or other material information within 
the time limit specified in ERISA or in PBGC regulations. Some of 
the notices and other material information covered by section 4071 
have to be provided to us, and some have to be provided to other 
parties, such as plan participants. This appendix sets forth 
principles and guidelines that we intend to follow in assessing, 
reviewing, and waiving information penalties. However, this is only 
general policy guidance. Our action in each case is guided by the 
facts and circumstances of the case.

Section 2  What Defined Terms are Used in This Appendix?

    The following terms are defined in part 4001 of this chapter: 
contributing sponsor, controlled group, employer, ERISA, PBGC, 
person, plan, plan administrator, and standard termination. In 
addition, in this appendix:
    (a) Information penalty means a penalty under ERISA section 4071 
for failing to provide section 4071 information on time.
    (b) Section 4071 information means any notice or other material 
information that you are required to provide to us or to another 
party under subtitles A-D of title IV of ERISA, or under section 
302(f)(4) or 307(e) of Title I of ERISA, or under PBGC regulations 
implementing any of these provisions. Whether a particular item of 
information is ``material'' depends on the facts and circumstances.
    (c) Waiver means reduction or elimination of an information 
penalty that is being or has been assessed.
    (d) We means the PBGC.
    (e) You means (according to the context)--
    (1) A plan administrator, contributing sponsor, or other person, 
if--
    (i) The person's action or inaction may be the basis for an 
information penalty assessment,
    (ii) The person may be required to pay the information penalty, 
or
    (iii) The person is requesting review of the information 
penalty; or
    (2) An employee or agent of, or advisor to, any of these 
persons.

Section 3  What Is the Purpose of an Information Penalty?

    The basic purpose of an information penalty is to encourage you 
to provide section 4071 information on time. Information penalties 
should be fair, simple, effective, and easy to administer. 
Therefore--
    (a) We assess lower information penalties for plans of small 
businesses and for failures to provide section 4071 information that 
are speedily corrected;
    (b) We assess higher information penalties if the facts and 
circumstances warrant it; and
    (c) We waive information penalties, in whole or in part, if 
there is reasonable cause or in other appropriate circumstances.

[[Page 2862]]

Procedures

Section 11  What Are the Basic Steps for Assessing and Reviewing 
Information Penalties?

    (a) Overview. There are typically three steps in the information 
penalty assessment and review process:
    (1) A preliminary notice (discussed in Sec. 12), which gives you 
an opportunity to submit information bearing on the information 
penalty assessment;
    (2) An information penalty determination (discussed in Sec. 13) 
that assesses the information penalty; and
    (3) A review of the information penalty determination (discussed 
in Sec. 14).
    (b) Debt collection. Our regulation on Debt Collection (29 CFR 
Part 4903) provides that we may collect amounts that you owe to us 
(such as information penalties) by reducing other amounts that the 
government owes to you (such as tax refunds). Procedures under our 
debt collection regulation may run separately or together with the 
information penalty assessment and review procedures.
    (c) Decision-making standards and guidelines. At each stage of 
the information penalty assessment and review process, we evaluate 
the circumstances by the same standards and apply the same 
guidelines in deciding whether to assess or waive an information 
penalty and how much the information penalty should be. However, we 
may have more information when we review an information penalty than 
we had when we originally assessed it, and that may make our 
decision on review different from our original information penalty 
determination.
    (d) Providing information to the PBGC. (1) It is your 
responsibility to raise any facts and issues that you want us to 
consider in making information penalty assessment or waiver 
decisions and to support your contentions with documentation such as 
correspondence and police, fire, or insurance reports. If you want 
us to consider information that you believe we already have in 
connection with another case, you should identify the information 
specifically enough so that we can determine whether we have the 
information, locate it in our files, and review it.
    (2) Since information penalties are assessed for providing 
section 4071 information late, it is important that you bring to our 
attention any information or arguments that tend to show that you 
were not required to provide the section 4071 information or that 
you provided the section 4071 information on time.
    (e) Terminology. There is a slight difference between the 
terminology we use in this appendix and the terminology we use in 
our regulation on Rules for Administrative Review of Agency 
Decisions (29 CFR Part 4003), which governs our issuance and review 
of information penalty determinations:
    (1) ``Initial determination'' in the administrative review 
regulation means the same as ``information penalty determination'' 
in this appendix, and
    (2) ``Reconsideration of an initial determination'' in the 
administrative review regulation means the same as ``review of an 
information penalty determination'' in this appendix.

Section 12  What Should I Know About Preliminary Notices of 
Information Penalties?

    Before we make an information penalty determination, we want you 
to have an opportunity to give us any information you think we 
should consider. In most cases, therefore, we send a preliminary 
notice to tell you that we intend to assess an information penalty 
and the reason for the information penalty. (In some cases, we may 
skip this preliminary step--for example, if we contact you by 
telephone to discuss the matter or if we need to make the assessment 
quickly in order to preserve our right to collect the information 
penalty in court.) You may respond to a preliminary notice by 
submitting any information you want us to consider before we make an 
information penalty determination. The preliminary notice will state 
the time within which you should respond (typically 30 days).
    (a) If section 4071 information already provided. If, by the 
time we issue a preliminary notice stating that we intend to assess 
an information penalty, you have already provided the late section 
4071 information, the notice ordinarily tells you the amount of the 
information penalty that we intend to assess. If the preliminary 
notice states an amount of information penalty and you pay the 
amount stated in the preliminary notice without requesting relief, 
that is the end of the matter.
    (b) If section 4071 information not already provided. If, by the 
time we issue a preliminary notice stating that we intend to assess 
an information penalty, you have not already provided the late 
section 4071 information, the notice ordinarily tells you the rate 
of penalty that we intend to assess. Providing the section 4071 
information will cut off further accrual of the information penalty.

Section 13  What Should I Know About Information Penalty 
Determinations?

    As the second step in the information penalty assessment and 
review process--after a preliminary notice--we make an information 
penalty determination (unless, in response to a preliminary notice 
that states an amount of information penalty, you pay the full 
information penalty without requesting relief). (If we skip the 
preliminary notice step, the information penalty assessment is the 
first step in the process.) The information penalty determination 
notifies you of the reason for the information penalty (even if we 
have already issued a preliminary notice stating the reason) and 
takes into account any information you may have submitted to us in 
response to a preliminary notice. We also tell you when and where to 
send your payment, and we tell you about requesting review of the 
information penalty determination. (Complete rules for information 
penalty determinations and for requesting review are in part 4003 of 
this chapter.)
    (a) If section 4071 information already provided. If, by the 
time we issue an information penalty determination, you have already 
provided the late section 4071 information, the determination tells 
you the amount of the information penalty that we are assessing 
(taking into account any waiver of all or part of the information 
penalty) and how we determined the amount of the information 
penalty. If the information penalty determination states an amount 
of information penalty and you pay the amount stated in the 
information penalty determination without requesting review, that is 
the end of the matter.
    (b) If section 4071 information not already provided. If, by the 
time we issue an information penalty determination, you have not 
already provided the late section 4071 information, the 
determination ordinarily tells you the rate of penalty we intend to 
assess. Providing the section 4071 information will cut off further 
accrual of the information penalty.

Section 14  What Should I Know About Review of Information Penalty 
Determinations?

    (a) Timing. (1) General rule. In general, you must request 
review of an information penalty determination within 30 days after 
the date of the determination; if you do not do so, the 
determination becomes effective, and we may take steps to collect 
the information penalty. In addition, you may not be able to raise 
in court some legal defenses that you might have against collection 
of the information penalty, because you have failed to exhaust 
administrative remedies. (In some cases, the 30-day limitation for 
requesting review may be extended or waived. See Secs. 4003.4 and 
4003.5 of the administrative review regulation. If we notify you 
that we may attempt to collect a debt resulting from an information 
penalty determination by referring it for offset against federal 
payments that may be due you, you will have at least 60 days to 
request review. See Sec. 4003.32 of the administrative review 
regulation.)
    (2) Determinations effective immediately. We may, in our 
discretion, make an information penalty determination effective on 
the date we issue it--for example, if our ability to bring a 
collection action in court is about to be cut off by the statute of 
limitations. If we make an information penalty determination 
effective immediately, you are not required to request review by us 
in order to exhaust your administrative remedies. This means that 
you have the right to raise legal defenses against collection of the 
information penalty in court even if you do not request that we 
review the determination. (See Sec. 4003.22(b) of the administrative 
review regulation.) If you do request review by the PBGC, we may 
review the determination.
    (b) Review of determination. If you request review of an 
information penalty determination within the required time, we 
review the determination and notify you of the results of the 
review. This review takes into account any information you may have 
submitted to us in response to a preliminary notice or an 
information penalty determination notice or with your request for 
review.
    (c) Information penalty accrual during review. Requesting review 
of an information

[[Page 2863]]

penalty does not make the information penalty stop accruing. An 
information penalty stops accruing when you provide the section 4071 
information. In addition, if you request review of an information 
penalty, we may waive the portion of the information penalty that 
accrues during review if you make a non-frivolous argument that you 
were not required to provide the section 4071 information or that 
you were (and still are) unable to provide it, as described in Sec. 
31(b)(4) of this Appendix.

Information Penalty Assessment

Section 21  Where Can I Find the General Principles That the PBGC 
Follows in Assessing Information Penalties and how the PBGC Applies 
Those Principles to Specific Cases?

    The general principles that we follow in deciding whether to 
assess an information penalty and, if so, the amount or rate of 
information penalty to assess are explained in the following 
sections of this Appendix:
    (1) Section 22 contains basic guidance.
    (2) Sections 23 and 24 describe some aggravating and mitigating 
factors.
    (3) Sections 25 through 27 describe how we generally treat 
situations involving multiple persons and multiple failures to 
provide section 4071 information.
    (4) Section 28 contains special guidance for specific types of 
cases.

Section 22  What Are the General Principles That the PBGC Follows 
in Deciding Whether To Assess an Information Penalty and, if so, 
the Amount or Rate of Information Penalty to Assess?

    (a) Facts and circumstances. In deciding whether to assess an 
information penalty for a failure to provide section 4071 
information on time and, if so, what rate or amount of information 
penalty to assess, we consider the facts and circumstances of the 
failure.
    (b) Aggravating and mitigating factors. Among the facts and 
circumstances we consider are aggravating and mitigating factors 
such as those described in Secs. 23 and 24 of this Appendix. 
Aggravating factors tend to make it more likely that we will assess 
an information penalty, and mitigating factors tend to make it less 
likely. If we do assess an information penalty, aggravating factors 
tend to increase the rate or amount of the information penalty we 
assess, and mitigating factors tend to decrease the rate or amount. 
An aggravating or mitigating factor may apply to all or only some of 
the section 4071 information that is not provided and to all or only 
some days of a delinquency.
    (c) Effect of plan size. 
    (1) Likelihood of assessment. In general, the likelihood that we 
will assess an information penalty is strongly influenced by the 
number of participants in your plan (as determined under paragraph 
(e)(2) of this section). Thus, for example, we are much less likely 
to assess an information penalty if your plan has fewer than 100 
participants (especially for a first violation) than if your plan 
has more than 1,000 participants (whether or not it is a first 
violation). This reflects differences in the ordinary business care 
and prudence standard for large and small plans (see Sec. 32(c)) and 
in their access to professional help in monitoring their activities 
and meeting PBGC requirements.
    (2) Amount or rate of information penalty. The effect of plan 
size on the amount or rate of an information penalty is explained in 
paragraphs (e)(1)(ii) and (e)(1)(iii) of this section.
    (d) Waivers. We may also reduce or eliminate an information 
penalty if we have information showing that a partial or complete 
waiver of the information penalty is appropriate. Waivers are 
explained in Secs. 31 through 35 of this Appendix.
    (e) Basic amount or rate of information penalty. If we assess an 
information penalty, the starting point for determining the rate or 
amount of the information penalty is the rate or amount determined 
under this section. The amount or rate may be higher or lower based 
on considerations such as those described in paragraphs (a) through 
(c) of this section and Secs. 23 through 28 of this Appendix.
    (1) Basic guidelines. Although ERISA section 4071 allows us to 
assess an information penalty up to $1,100 per day for each failure 
to provide section 4071 information, the information penalties we 
assess are generally much lower under the following guidelines.
    (i) Daily amount. The information penalty is generally $25 a day 
for the first 90 days that the section 4071 information is late, and 
$50 for each day thereafter.
    (ii) Limit on total information penalty. The total information 
penalty generally does not exceed $100 times the number of 
participants.
    (iii) Reduction for small plans. If there are fewer than 100 
participants in your plan, we generally reduce the daily information 
penalty based on the ratio of the number of participants to 100, 
subject to a floor of $5 a day.
    (2) How we count the number of participants. For purposes of the 
per-participant cap and the small plan reduction described in 
paragraphs (e)(1)(ii) and (e)(1)(iii) of this section, we generally 
count participants in the following ways:
    (i) In plan terminations. For a failure to provide section 4071 
information under part 4041 of this chapter (dealing with standard 
and distress plan terminations), we generally use the number of 
persons entitled to distributions of benefits in the plan 
termination. For example, if you are a plan administrator, and you 
are late in certifying to us that all benefits were properly 
distributed in a plan termination, the information penalty generally 
should not exceed $100 times the number of persons entitled to 
distributions of benefits in the plan termination.
    (ii) In other cases. For any other failure to provide section 
4071 information, we generally use the number of participants 
reported on the PBGC Form 1 premium declaration that you most 
recently filed before the date of the failure, unless the number of 
participants has changed significantly since the Form 1 was filed. 
However, if clearly appropriate in a particular case, we may use a 
different method of determining the number of participants (e.g., 
adding up the number of participants in two or more plans).
    (3) Examples. The following examples illustrate the basic 
guidelines for assessing information penalties under this section. 
In these examples, assume that you are the plan administrator of a 
terminating plan and that you file your post-distribution 
certification late.
    (i) General rule. If your plan has 112 participants, and you 
file 306 days after the last day on which you could have made an 
information-penalty-free filing, the total information penalty 
should ordinarily be $11,200, as shown in the following table. (Note 
that in this example, the cap of $100 times the number of 
participants applies.)

------------------------------------------------------------------------
                                                    Total information
                                    Daily rate           penalty
------------------------------------------------------------------------
Days 1-90........................          $25  $2,250 ($25 x 90 days).
Days 91-306......................          $50  $10,800 ($50 x 216
                                                 days).
    Total for all days (uncapped)               $13,050 ($2,250 +
                                                 $10,800).
    Total capped information                    $11,200 ($100 x 112
     penalty.                                    participants).
------------------------------------------------------------------------

    (ii) Small plan rule. If your plan has 15 participants, and you 
file 100 days after the last day on which you could have made an 
information-penalty-free filing, the total information penalty 
should ordinarily be $525, as shown in the following table. (Note 
that in this example, the total information penalty is less than the 
cap of $100 times the number of participants, i.e., $1,500 ($100 x 
15).)

------------------------------------------------------------------------
                                                      Total information
                                   Daily rate              penalty
------------------------------------------------------------------------
Days 1-90...................  $5 (minimum daily     $450 ($5 x 90 days).
                               information
                               penalty, since 15/
                               100 x $25 = $3.75).
Days 91-100.................  $7.50 (15/100 x $50)  $75 ($7.50 x 10
                                                     days).
    Total for all days......                        $525 ($450 + $75).
------------------------------------------------------------------------


[[Page 2864]]

Section 23  What Aggravating Factors Does the PBGC Consider?

    The aggravating factors that we consider are the following. (We 
do not consider the absence of mitigating factors to be an 
aggravating factor.)
    (a) Harmfulness. Failure to provide section 4071 information on 
time where the failure is--or has the potential of being--
particularly harmful to participants or the PBGC is an aggravating 
factor. (This may be true even though, by the time we receive the 
information, any possible harm has been avoided.) Harmfulness may 
depend on the importance, time-sensitivity, and quantity of section 
4071 information you fail to provide on time and on the size of your 
plan.
    (b) Pattern or practice. A pattern or practice of failure to 
provide section 4071 information is an aggravating factor.
    (c) Willfulness. Willful failure to comply is an aggravating 
factor.

Section 24  What Mitigating Factors Does the PBGC Consider?

    (a) The mitigating factors that we consider are the following 
(We do not consider the absence of aggravating factors to be a 
mitigating factor.):
    (1) First-time requirement. It is a mitigating factor if your 
failure to provide section 4071 information is a violation of a 
requirement that applies to you for the first time.
    (2) Self-correction. It is a mitigating factor if you--
    (i) Correct your failure to provide section 4071 information 
promptly after you discover the failure, and
    (ii) Notify us on your own initiative of your failure to provide 
the section 4071 information before we notify you that you have or 
may have failed to provide the section 4071 information.
    (3) Corrective action. It is a mitigating factor if you 
cooperate with us by taking appropriate corrective action and 
establishing procedures designed to ensure future compliance.
    (b) Example. A mid-size company with a pension plan covering 750 
participants mistakenly made a quarterly contribution that was too 
low. The company did not immediately realize that the contribution 
was too low and did not make a reportable events report to the PBGC. 
As soon as the company discovered its error, it made a corrective 
contribution, telephoned the PBGC to alert us to the problem, and 
promptly filed the required reportable event notice. The company had 
never before failed to make all required contributions, and both the 
plan and the company were financially healthy. At the PBGC's 
request, the plan administrator put in place new procedures to avoid 
future reporting failures. Under the circumstances, the PBGC might 
assess no information penalty or might assess an information penalty 
of less than the amount that would be called for under Sec. 22.

Section 25  What if Multiple Persons Must Give a Notice?

    If each of two or more persons is responsible for providing 
substantially identical section 4071 information to us or to another 
person or persons, and the information is not provided as required, 
we may--
    (a) Assess an information penalty against any one or more of the 
persons without regard to whether we assess an information penalty 
against any other of the persons; and
    (b) Determine the amount of information penalty assessed against 
any person without regard to the amount assessed against any other 
person.

Section 26  What if Multiple Persons Must Get a Notice?

    In general, if you have to give substantially identical notices 
to multiple persons, we generally assess only a single information 
penalty for failure to provide the notices as required, regardless 
of how many persons did not receive a notice as required. However:
    (a) The number of persons you did not provide notice to as 
required may affect the amount of daily information penalty we 
assess. For example, if you are a plan administrator and you fail to 
give a Participant Notice under Part 4011 of this chapter as 
required, we generally assess only one information penalty. But if 
your plan is quite large, the information penalty we assess is 
likely to be greater than if the plan were small.
    (b) If there are aggravating factors, we may, in addition to 
assessing a higher information penalty under Sec. 22(b), assess a 
separate information penalty for each person to whom you failed to 
give a notice.

Section 27  What if a Single Event or Circumstance Leads to 
Multiple Failures to Provide Section 4071 Information?

    If there are multiple failures to provide section 4071 
information relating to a single event or circumstance, we generally 
assess a separate information penalty for each failure. For example, 
suppose you are a contributing sponsor of a plan and you fail to 
make several required contributions to the plan because of a single 
failure to determine that contributions are necessary for the year. 
The failure to notify us of each missed contribution is a separate 
failure for which we generally assess a separate information 
penalty.

Section 28  What Special Guidance is There for Specific Types of 
Cases?

    The following is special guidance for applying the general 
assessment principles in specific types of cases:
    (a) Premium information requirements. If you file a complete, 
correct premium form (Form 1, Schedule A, Form 1-ES) late, with the 
full premium payment, we do not assess an information penalty except 
in unusual cases. The premium penalty for late payment is usually an 
adequate penalty.
    (b) Plan termination information requirements. If you fail to 
file or issue a notice required for a plan termination under Part 
4041 of this chapter on time, and we issue a notice of noncompliance 
nullifying the termination, we do not also assess an information 
penalty for your failure to file or issue the required notice on 
time.
    (c) Reportable event post-event notice requirements. If we 
assess an information penalty for a failure by a large plan or 
employer to file a notice of a reportable event under ERISA section 
4043, other than an advance notice under ERISA section 4043(b) 
(which is discussed in paragraph (d) of this section), the amount or 
rate may be much higher than the basic amount or rate that would be 
determined under Sec. 22(e) of this Appendix. Such failures usually 
are--or have the potential of being--particularly harmful to 
participants or the PBGC if they involve large plans or employers. 
For example, if you do not give us a required notice of a controlled 
group member's bankruptcy filing, the controlled group member's 
assets may be distributed to other creditors before we can file our 
claims for plan underfunding, and we may therefore be unable to 
recover on our claims or otherwise participate in the bankruptcy 
proceedings.
    (d) Reportable event advance notice requirements. We virtually 
always assess an information penalty if you fail to file an advance 
notice of a reportable event under ERISA section 4043(b), and we 
generally assess the full $1,100-per-day information penalty. This 
information is generally so time-sensitive and significant that the 
maximum information penalty is warranted in virtually every case, 
without regard to whether there are aggravating circumstances in the 
particular case, because of the need for strong deterrence of 
violations of this kind.
    (e) Missed contribution notice requirements. We virtually always 
assess an information penalty if you fail to file a missed 
contribution notice (Form 200) under ERISA section 302(f)(4), and we 
generally assess the full $1,100-per-day information penalty. This 
information is very time-sensitive because it is the basis for 
filing a lien under section 302(f) for the protection of the plan. 
Thus, the maximum information penalty is warranted in virtually 
every case, without regard to whether there are aggravating 
circumstances in the particular case, because of the need for strong 
deterrence of violations of this kind. The fact that the 
contribution is ultimately made does not undo the potential for harm 
that exists while the contribution is outstanding. However, we may 
reduce the information penalty rate for any period during which the 
notice remains unfiled after the missed contribution is made--for 
example, from $1,100 per day to $100 per day.
    (f) Employer reporting requirements. We virtually always assess 
an information penalty if you fail to file a financial and actuarial 
information report under ERISA section 4010, covering plans with 
very high underfunding, and we generally assess the full $1,100-per-
day information penalty. Failures to file financial and actuarial 
information reports generally are--or have the potential of being--
so harmful to participants or the PBGC that the maximum information 
penalty is warranted in virtually every case, without regard to 
whether there are aggravating circumstances in the particular case, 
because of the need for strong deterrence of violations of this 
kind.

Waiver Standards

Section 31  What are the Standards for Waiving an Information 
Penalty?

    (a) Facts and circumstances. In deciding whether to waive an 
information penalty in

[[Page 2865]]

whole or in part, we consider the facts and circumstances of each 
case.
    (b) Waivers. (1) Provisions of law. We waive all or part of an 
information penalty if a statute or regulation requires that we do 
so. For example, Sec. 4041.29(b) of this chapter provides that we do 
not assess an information penalty for a late post-distribution 
certification except to the extent that you file it more than 90 
days after the distribution deadline under Sec. 4041.28(a) of this 
chapter; and 4050.6(b)(2) of this chapter contains a similar 
provision for the late filing of information and certifications 
regarding missing participants in a terminating plan.
    (2) Reasonable cause. We waive an information penalty if you 
show reasonable cause for a failure to provide section 4071 
information on time. See Secs. 32 through 35 for guidelines on 
``reasonable cause'' waivers. If there is reasonable cause for only 
part of a failure to provide section 4071 information, we waive the 
information penalty only for that part. In determining whether 
``reasonable cause'' exists, we do not consider either --
    (i) The likelihood or cost of collecting the information 
penalty, or
    (ii) The costs and risks of enforcing the information penalty by 
litigation.
    (3) Erroneous legal interpretations. We may waive all or part of 
an information penalty if the failure to provide section 4071 
information on time that gives rise to the information penalty is 
based on your reliance on an erroneous interpretation of the law.
    (i) If you disclose the interpretation to us. If a failure to 
provide section 4071 information on time results from your reliance 
on an erroneous interpretation of the law, we will waive an 
information penalty that arises from the failure if you promptly and 
adequately call our attention to the interpretation and the relevant 
facts, and the erroneous interpretation is not frivolous. If the 
interpretation affects a filing that you make with us, you should 
call our attention to the interpretation with the filing. If you 
rely on the interpretation to justify not making a filing with us, 
you should call our attention to the interpretation in a notice 
submitted to us by the time and in the manner prescribed for the 
filing not made. If the interpretation affects information that you 
provide to persons other than us, you should call our attention to 
the interpretation when you provide the information by sending us a 
notice addressed to Technical Assistance Branch, Insurance 
Operations Department, PBGC, 1200 K Street, NW., Washington, DC 
20005-4026. If you rely on the interpretation to justify not 
providing information to persons other than us, you should call our 
attention to the interpretation by sending a notice to the above 
address by the time prescribed for providing the information that is 
not provided.
    (ii) If you do not disclose the interpretation to us. If a 
failure to provide section 4071 information on time results from 
your reliance on an erroneous interpretation of the law, and you do 
not promptly and adequately call our attention to the interpretation 
and the relevant facts, we may waive an information penalty that 
arises from the failure if the weight of authority supporting the 
interpretation is substantial in relation to the weight of opposing 
authority and it is reasonable for you to rely on the 
interpretation.
    (4) Pendency of review. If you request review of an information 
penalty (as described in Sec. 14 of this Appendix), and you make a 
non-frivolous argument that you were not required to provide the 
section 4071 information or that you were (and still are) unable to 
provide it, we waive the portion of the information penalty that 
accrues during the review process. (If you make a non-frivolous 
argument that you were not required (or were unable) to provide a 
portion of the section 4071 information, we apply this rule to that 
portion.) The waiver also applies to the post-review period (the 
period after we complete our review) if you pay the information 
penalty within 30 days after the date of our decision and provide 
the section 4071 information by the time specified in the notice of 
our decision, which is normally also 30 days after the date of the 
decision, but may be less depending on the importance of the 
information. Otherwise, the waiver does not apply to the period from 
the date of our decision until you provide the section 4071 
information.
    (5) Other circumstances. We may waive all or part of an 
information penalty in other circumstances if we determine that it 
is appropriate to do so. We intend to exercise this waiver authority 
only in narrow circumstances, primarily if we determine that 
assessing an information penalty, or assessing the full amount of 
information penalty that might otherwise be appropriate under the 
guidelines in this appendix, would be inconsistent with the purposes 
of Title IV of ERISA. For example, we may waive all or part of an 
information penalty if the law changes shortly before the date when 
section 4071 information must be provided and the information you 
provide by that date would have been correct under the law as in 
effect before the change. In determining whether and to what extent 
to grant a waiver in a case of this kind, we consider such factors 
as the length of time between the change in the law and the date by 
which the section 4071 information must be provided, the nature and 
timing of any publicity given to the change in the law, the 
complexity of the legal issues, and your general familiarity with 
those issues.
    (c) Action or inaction of outside parties. If an accountant, 
actuary, lawyer, pension consultant, or other individual or firm 
that is not part of your organization assists you in complying with 
PBGC requirements, we apply our waiver authority as if the outside 
individual or firm were part of your organization, as described in 
Sec. 32(c) of this Appendix.

Section 32  What Is ``Reasonable Cause''?

    (a) General rule. In general, there is ``reasonable cause'' for 
a failure to provide section 4071 information on time to the extent 
that--
    (1) The failure arises from circumstances beyond your control, 
and
    (2) You could not avoid the failure by the exercise of ordinary 
business care and prudence.
    (b) Overlooking legal requirements. Overlooking legal 
requirements does not constitute reasonable cause.
    (c) Action or inaction of outside parties. In some cases an 
accountant, actuary, lawyer, pension consultant, or other individual 
or firm that is not part of your organization may assist you in 
complying with PBGC requirements. If the outside individual's or 
firm's action, inaction, or advice causes or contributes to a 
failure to provide section 4071 information on time, our analysis is 
generally the same as if the outside individual or firm were part of 
your organization. (In the case of an outside individual who is part 
of a firm, we generally consider both the individual and the firm to 
be part of your organization.) Thus, if a failure to provide section 
4071 information on time arises from circumstances within the 
control of the outside individual or firm, or could be avoided by 
the exercise of ordinary business care and prudence by the outside 
individual or firm, there is generally no reasonable cause for the 
failure. The fact that you exercised care and prudence in selecting 
and monitoring the outside individual or firm is not a basis for a 
reasonable cause waiver. (However, you may have recourse against the 
outside individual or firm.)
    (d) Size of organization. If an organization or one or more of 
its employees is responsible for taking action, the size of the 
organization may affect what ordinary business care and prudence 
would require. For example, ordinary business care and prudence 
would typically require a larger organization to establish more 
comprehensive backup procedures than a smaller organization for 
dealing with situations such as computer failure, the loss of 
important records, and the inability of an individual to carry out 
assigned responsibilities. Thus, there may be reasonable cause for a 
small organization's failure to provide section 4071 information on 
time even though, if the organization were larger, the exercise of 
ordinary business care and prudence would have avoided the failure.
    (e) Potential seriousness of failure to provide section 4071 
information on time. In general, the more potentially serious or 
harmful a failure to provide section 4071 information on time would 
be, the more care and prudence you should use to make sure that you 
provide it on time. Thus, there may be reasonable cause for a minor 
failure even though, under the same circumstances, we would conclude 
that a more serious failure could have been avoided by the exercise 
of ordinary business care and prudence.

Section 33  What Kinds of Facts Does the PBGC Consider in 
Determining Whether There is Reasonable Cause for a Failure to 
Provide Section 4071 Information?

    In determining whether a failure to provide section 4071 
information on time arose from circumstances beyond your control and 
whether you could have avoided the failure by the exercise of 
ordinary business care and prudence--and thus whether waiver of an 
information penalty for reasonable cause is appropriate--we consider 
facts such as the following:

[[Page 2866]]

    (a) What event or circumstance caused the failure and when the 
event happened or the circumstance arose. The dates you give should 
clearly correspond with the failure upon which the information 
penalty is based.
    (b) How that event or circumstance kept you from providing the 
section 4071 information on time. The explanation you give should 
relate directly to the failure to provide section 4071 information 
that is the subject of the information penalty.
    (c) Whether the event or circumstance was beyond your control.
    (d) Whether you could have anticipated the event or 
circumstance.
    (e) How you responded to the event or circumstance, including 
what steps you took (and how quickly you took them) to provide the 
section 4071 information and how you conducted other business 
affairs. Knowing how you responded to the event or circumstance may 
help us determine what degree of business care and prudence you were 
capable of exercising during that period and thus whether the 
failure to provide section 4071 information could or could not have 
been avoided by the exercise of ordinary business care and prudence.

Section 34  What Are Some Situations That Might Justify a 
``Reasonable Cause'' Waiver?

    The following examples illustrate some of the reasons often 
given for failures to provide section 4071 information for which we 
may assess penalties. The situation described in each example may 
constitute reasonable cause, and each example lists factors we 
consider in determining whether we should grant an information 
penalty waiver for reasonable cause in a case of that kind.
    (a) An individual with responsibility for taking action was 
suddenly and unexpectedly absent or unable to act. We consider such 
factors as the following: the nature of the event that caused the 
individual's absence or inability to act (for example, the 
resignation of the individual or the death or serious illness of the 
individual or a member of the individual's immediate family); the 
size of the organization and what kind of backup procedures it had 
to cope with such events; how close the event was to the deadline 
that was missed; how abrupt and unanticipated the event was; how the 
individual's absence or inability to act prevented compliance; how 
expensive it would have been to comply without the absent 
individual; whether and how other business operations and 
obligations were affected; how quickly and prudently a replacement 
for the absent individual was selected or other arrangements for 
compliance were made; and how quickly a replacement for the absent 
individual took appropriate action.
    (b) A fire or other casualty or natural disaster destroyed 
relevant records or prevented compliance in some other way. We 
consider such factors as the following: the nature of the event; how 
close the event was to the deadline that was missed; how the event 
caused the failure to provide section 4071 information; whether 
other efforts were made to get needed information; how expensive it 
would have been to comply; and how you responded to the event.
    (c) You reasonably relied on erroneous oral or written advice 
given by a PBGC employee. We consider such factors as the following: 
whether there was a clear relationship between your situation and 
the advice sought; whether you provided the PBGC employee with 
adequate and accurate information; and whether the surrounding 
circumstances should have led you to question the correctness of the 
advice or information provided.
    (d) You were unable to obtain information (including records and 
calculations) needed to comply. We consider such factors as the 
following: what information was needed; why the information was 
unavailable; when and how you discovered that the information was 
not available; what attempts you made to get the information or 
reconstruct it through other means; and how much it would have cost 
to comply.

Section 35  What Is a Siuation That Might Justify a Partial 
``Reasonable Cause'' Waiver?

    Assume that a fire destroyed the records needed for a required 
filing of section 4071 information. If in the exercise of ordinary 
business care and prudence it should take you one month to 
reconstruct the records and prepare the filing, but the filing was 
made two months late, it might be appropriate to waive that part of 
the information penalty attributable to the first month the filing 
was late, but not the part attributable to the second month.

    Issued in Washington, D.C., this 5th day of January, 2001.
David M. Strauss,
Executive Director, Pension Benefit Guaranty Corporation.

[FR Doc. 01-686 Filed 1-11-01; 8:45 am]
BILLING CODE 7708-01-P