[Federal Register Volume 70, Number 45 (Wednesday, March 9, 2005)]
[Rules and Regulations]
[Pages 11540-11546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4623]


=======================================================================
-----------------------------------------------------------------------

PENSION BENEFIT GUARANTY CORPORATION

29 CFR Parts 4000 and 4010

RIN 1212-AB01


Electronic Filing--Annual Financial and Actuarial Information

AGENCY: Pension Benefit Guaranty Corporation.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The PBGC is amending its regulation on Annual Financial and 
Actuarial Information Reporting to require: Electronic filing in a 
standardized format of certain identifying, financial, and actuarial 
information and the filing of additional items of supporting 
information that are readily available to the filer, including a 
demonstration by a filer for the previous year that a filing is not 
required for the current year. The final rule will strengthen the 
defined benefit system and enhance the PBGC's ability to carry out its 
mission effectively and efficiently.

DATES: Effective Date: April 8, 2005. For a discussion of applicability 
of the amendments, see the Applicability section in SUPPLEMENTARY 
INFORMATION.

FOR FURTHER INFORMATION CONTACT: James J. Armbruster, Acting Director, 
Legislative & Regulatory Department, or James L. Beller, Attorney, 
Legislative & Regulatory Department, PBGC, 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: On December 28, 2004 (at 69 FR 77679), the 
PBGC published a proposed rule modifying 29 CFR part 4010 of the PBGC's 
regulations (Annual Financial and Actuarial Information Reporting). 
(The PBGC published a correction on January 12, 2005 (at 70 FR 2080)). 
The PBGC received seven comment letters on the proposed rule (which are 
addressed below) and is issuing the final regulation with three 
modifications: (1) The proposed requirement to provide identifying 
information on exempt entities is eliminated; (2) for the first year 
this rule is in effect, filers may submit their reports by providing 
the information in an electronic format specified on the PBGC's Web 
site, rather than exclusively through the PBGC's Web-based software 
application, and (3) for that first year, companies may continue to use 
the optional assumptions method to determine whether filing is 
required. There are other minor modifications, as noted below.
    This rule is part of the Pension Benefit Guaranty Corporation's 
(PBGC's) ongoing effort to streamline regulation and to improve 
administration of the pension insurance program, with a focus on making 
pension-related data more accurate, complete, timely, and--in 
particular--transparent. It is also part of the PBGC's ongoing 
implementation of the Government Paperwork Elimination Act and is 
consistent with the Office of Management and Budget's directive to 
remove regulatory impediments to electronic transactions. The rule 
builds in the flexibility needed to allow the PBGC to update the 
electronic filing process as technology advances.
    The PBGC administers the pension insurance programs under Title IV 
of the Employee Retirement Income Security Act of 1974 (ERISA). To 
enable the PBGC to anticipate and, when possible, minimize potential 
liabilities that may arise from the termination of significantly 
underfunded plans, ERISA section 4010 requires the reporting of 
actuarial and financial information by controlled groups with pension 
plans that have significant funding problems. Specifically, reporting 
is required by a controlled group if: (1) The aggregate unfunded vested 
benefits of all plans maintained by members of the controlled group 
exceed $50 million (disregarding plans with no unfunded vested 
benefits); (2) the conditions specified in section 302(f) of ERISA and 
section 412(n) of the Internal Revenue Code for imposing a lien for 
missed contributions exceeding $1 million have been met with respect to 
any plan maintained by any member of the controlled group; or (3) the 
Internal Revenue Service has granted minimum funding waivers in excess 
of $1 million to any plan maintained by any member of the controlled 
group, and any portion of the waiver(s) is still outstanding.
    Pursuant to section 4010 of ERISA, the PBGC issued its regulation 
on Annual Financial and Actuarial Information Reporting in 1995 (29 CFR 
part 4010). The regulation specifies the items of identifying, 
financial, and actuarial information that filers must submit under 
section 4010 but does not currently require a standardized format. The 
PBGC reviews the information that is filed and enters it into an 
electronic database for more detailed analysis. Computer-assisted 
analysis of this information enables the PBGC to anticipate possible 
major demands on the pension insurance system and to focus PBGC 
resources on situations that pose the greatest risks to that system. 
Because other sources of information are usually not as current as the 
section 4010 information, the section 4010 filing plays a vital role in 
the PBGC's ability to protect participant and premium-payer interests.
    As modified, the final rule: (1) Requires electronic filing of 
section 4010 information in a standardized format; (2) requires the 
submission of certain additional information the PBGC needs to carry 
out its role of protecting participant and premium-payer interests; (3) 
modifies the rules for determining whether aggregate unfunded vested 
benefits exceed $50 million (the $50 million section 4010 gateway test) 
for reporting for information years ending on or after December 31, 
2005; and (4) removes the requirement that a power of attorney 
accompany any filing made by a person other than a filer.

[[Page 11541]]

Comments

    The PBGC received seven comment letters: One from a nonprofit 
association representing a number of large employers, two from large 
corporations, and four from firms engaged in employee benefits 
consulting. Three commenters commended the PBGC for proposing to 
require the electronic submission of standardized section 4010 reports. 
One of those commenters stated that ``the electronic submission of 
standardized Sec.  4010 reports is likely to help plan sponsors to 
submit (and the PBGC to collect) timely, complete, accurate, and 
useable information in a cost-effective manner.''
    Commenters expressed three major concerns: (1) The new information 
requirements, in particular the requirement to provide identifying 
information on exempt entities, would be burdensome and unnecessary; 
(2) the elimination of the optional assumptions method for determining 
unfunded vested benefits could be unfair to some companies and would 
make it difficult for them to file in time; and (3) it would be 
difficult to adjust to the PBGC's Web-based software application and 
the additional filing requirements, especially in time to comply with 
the deadline for the first year under the new rules (April 15, 2005, 
for calendar year filers). There were a number of other miscellaneous 
comments.

New Information Requirements

    Identifying information on exempt entities. Several commenters 
raised concerns about the proposed requirement to provide identifying 
information on exempt entities (defined in Sec.  4010.4(d)). The 
commenters stated that the new requirement would be onerous and not 
helpful to the PBGC. One commenter noted that its controlled group 
includes a very large number of entities (over 1,000) and that many of 
these have little or no assets. It noted that entities with a de 
minimis amount of assets should not be of concern to the PBGC. Two 
commenters suggested that the PBGC should not change the current 
exclusion for exempt entities. Those commenters suggested that if a 
change is required, the PBGC could adopt a standard similar to the SEC 
standard for allowing the omission of certain companies from the list 
of subsidiaries on Exhibit 21 of SEC Form 10-K. One of these commenters 
suggested that the final rule should exempt financially sound companies 
from this requirement. One commenter suggested that the PBGC allow 
filers to provide this information by an attachment. One commenter 
questioned the PBGC's authority to require a filer upon written request 
to submit additional information about exempt entities and asked that 
the regulation specify the additional information about exempt entities 
the PBGC could request.
    In light of these comments, the PBGC has decided to eliminate from 
the final rule the proposed requirement to provide identifying 
information on exempt entities. While the PBGC has determined that it 
is not necessary to collect this information on an annual basis for all 
section 4010 filers, such information is nonetheless vital to 
protecting the interests of the pension insurance program in certain 
circumstances, and the PBGC will request filers to provide such 
information on exempt entities when circumstances dictate. As explained 
in the preamble to the proposed rule (69 FR at 77681), exempt entities 
sometimes present a valuable source of recovery for PBGC claims (should 
any arise). This is because all members of the controlled group are 
jointly and severally liable to the PBGC. Therefore, the PBGC may be 
the only creditor, or one of just a few creditors, of the exempt 
entity. Section 4010 of ERISA and the existing regulation clearly allow 
the PBGC to ask for identifying and financial information from all 
section 4010 filers. Moreover, the PBGC could require the additional 
information annually from all filers. See the preamble to the final 
regulation that first implemented section 4010, 60 FR 66054, 66055 
(Dec. 20, 1995). Therefore, the PBGC stresses that in specific cases it 
will exercise its authority under Title IV to request this additional 
information.
    Expansion of financial information on non-contributing sponsors. 
One commenter said that extending the requirement to report revenue, 
assets and income to controlled group members who are not contributing 
sponsors seems to impose the administrative burden of sponsoring a 
defined benefit plan on entities who choose not to sponsor such plans. 
ERISA section 4010 specifically includes each member of a contributing 
sponsor's controlled group among the persons required to provide 
information. This requirement applies only to a controlled group member 
whose financial information cannot be ascertained by the PBGC because 
it is combined with other members' information in a consolidated 
financial statement. Moreover, as explained in the proposed rule (69 FR 
at 77681), the PBGC needs this information breakdown on all nonexempt 
entities included in consolidated financial statements, not only on 
contributing sponsors. This information enables the PBGC to identify 
which controlled group members hold the assets of the consolidated 
group. This information breakdown is currently maintained by controlled 
groups that file consolidated statements, and thus providing it would 
not be burdensome.
    Changes in controlled group. One commenter had concerns about the 
requirement to report controlled group changes because such changes are 
already captured through reporting under part 4043 (Reportable Events). 
Part 4043 does not apply when a member joins the controlled group. In 
addition, the reporting requirements under part 4043 provide a number 
of waivers that are not appropriate for section 4010 filers. This 
commenter also argued that it would be burdensome to report the 
potentially high volume of non-substantive controlled group changes. 
Because the PBGC is eliminating the proposed requirement to report on 
exempt entities, much of this burden is relieved.
    Frozen plans. A commenter stated that the information on frozen 
plans would provide little benefit to the PBGC and could be obtained 
elsewhere. As explained in the preamble to the proposed rule, the PBGC 
needs this information to better analyze unfunded vested benefits 
liability. The information is not always available in the actuarial 
valuation report or the Form 5500. That commenter also asked that the 
PBGC clarify what it means by plan freezes. The section 4010 filing 
instructions on the PBGC's Web site specify the types of freezes that 
must be reported.
    Demonstration by previous filer of exemption. One commenter 
questioned the PBGC's authority to require a filer for the previous 
year to demonstrate that a filing is not required for the current year. 
The commenter suggested that if the PBGC retains this requirement, it 
should eliminate the requirement to report the amount of unfunded 
vested benefits. The PBGC has the general authority under Title IV to 
promulgate regulations to carry out the purposes of the title, and, as 
explained in the proposed rule, the requirement clearly furthers the 
purpose of ERISA by ensuring that filers do not overlook their filing 
obligations. In response to this comment, the PBGC has modified the 
section 4010 filing instructions on its Web site by removing the 
requirement that previous filers report the amount of unfunded vested 
benefits in all cases. However, the instructions make clear that the 
PBGC will, on a case-by-case basis, require a more complete

[[Page 11542]]

demonstration that filing is not required.

Optional Assumptions

    Several commenters asked the PBGC to reconsider the proposed change 
to the regulation that would prohibit filers from using optional 
assumptions for determining unfunded vested benefits for purposes of 
the $50 million section 4010 gateway test. Commenters noted that some 
companies might be relying on the optional assumptions to determine 
that a 2004 filing is not required and eliminating this option would 
create the need to perform additional calculations to determine if a 
section 4010 filing is required, and if so, leave the filer little time 
to assemble the filing. Based on this, several commenters asked for a 
one-year delay in the effective date of the final regulation. In 
addition, one commenter stated that the optional assumptions method was 
an appropriate method and should not be eliminated.
    As explained in detail in the preamble to the proposed rule (69 FR 
at 77681), reporting under section 4010 is warranted if the $50 million 
section 4010 gateway test is reached using the rules under Sec.  4006.4 
for determining unfunded vested benefits. However, in order to give 
companies additional time to adjust to this change, the final rule will 
allow the use of the optional assumptions for one more year (i.e., for 
filings with respect to information years ending before December 31, 
2005).

Web-Based Filing

    A number of commenters said that it would be difficult to adjust to 
the PBGC's web-based software application and the additional filing 
requirements, and especially difficult to adjust in time to comply with 
the deadline for the first year (April 15, 2005, for calendar year 
filers). Several commenters said that the PBGC should not require 
submission through the PBGC's Web-based software application but should 
provide an alternative of submitting the information on an electronic 
spreadsheet or other commonly used electronic format. Several 
commenters urged that the Web-based software application should allow 
for more than one ID/password per filing, so that certain information 
could be entered under one password, while other information could be 
entered under another password. Two commenters suggested that the Web-
based software be designed to allow the company to enter the financial 
information, without providing access to that information to the 
actuary, and allow the actuary to enter the actuarial information 
separately.
    There are a number of reasons why the proposed rule required filing 
through the PBGC's Web-based software application. As stated in the 
preamble to the proposed rule (69 FR at 77680), filers currently 
provide section 4010 information in a non-standard format. This makes 
the information harder to use, restricts the PBGC's ability to perform 
electronic data analysis, and in general results in unnecessary work, 
inaccuracies, and delays. The PBGC has concluded that its ability to 
protect participant and premium-payer interests would increase and that 
the filing process would work more efficiently if filers provided 
information electronically and in a standardized format. Moreover, 
filing by using the PBGC's Web-based software application will have 
many advantages over filing by using a commonly-used electronic format. 
For example, the Web-based software will automatically create a 
database of section 4010 information and will perform validity checks 
to ensure the filing is internally consistent and complete before it is 
submitted. In addition, the Web-based software will retain the filer's 
previous year's filing and use this as a starting point for completing 
the current year's filing; in general, information will need to be 
reentered each year only to the extent it has changed from the prior 
year.
    Nevertheless, in order to give filers more time to adjust to the 
web-based software application, for the first year (i.e., for filings 
with respect to information years ending before December 31, 2005), 
filers may submit their reports in one of two manners: (1) Using the 
PBGC's Web-based software application, or (2) providing the information 
in a commonly-used electronic format as specified on the PBGC's Web 
site. For filings using a commonly-used electronic format, the section 
4010 filing instructions on the PBGC's Web site specify the acceptable 
electronic file types (e.g., compressed, pdf, Word, Wordperfect, or 
Excel) and the requirements for organizing and presenting the 
information. After the first year, filing will be permitted only 
through the PBGC's Web-based software application.
    Although the Web-based software application does not provide for 
multiple passwords, where filings require the effort of multiple 
people, the PBGC expects that one person will collect the information 
from all sources and then enter the information via the Web-based 
software application. For the first year, filers may avoid the problems 
that might arise due to the single ID/password feature of the Web-based 
software application by choosing the option of submitting their reports 
in an electronic format as specified on the PBGC's Web site. The PBGC 
is looking into the feasibility of providing multiple passwords for 
reporting for future information years.
    One commenter noted that neither the preamble nor the proposed rule 
provides that the PBGC's Web site would be secure. In the materials 
provided on the PBGC's Web site along with the proposed rule (http://www.pbgc.gov/laws/lawsregs/federalreg/proprule.htm), the PBGC explained 
that the Web-based software application would be secure. The PBGC has 
ensured that the Web-based software application uses the best available 
information security measures.
    Some commenters asked for clarification on how certain aspects of 
the Web-based software application will work (for example, the 
procedure for submitting an actuarial valuation report after the 
section 4010 filing due date as permitted under Sec.  4010.8(b) or 
correcting a filing after submission). The PBGC has made these 
clarifications in the section 4010 filing instructions on the PBGC's 
Web site.

Proposed Legislation

    Several commenters suggested that the PBGC should delay the 
effective date of the proposed rule so that it can be coordinated with 
any legislation enacted by Congress affecting pension funding and 
disclosure. The regulatory changes made by this final rule are needed 
under the current state of the law and it would be contrary to the 
interests of the pension insurance program to delay implementation 
based on the assumption that Congress will legislate in this area. In 
the event that Congressional action affects part 4010 of the 
regulations, the PBGC will make appropriate changes.

Miscellaneous Comments

    One commenter asked for clarification of the date by which 
contributions must be made in order to be taken into account for 
determining unfunded vested benefits for purposes of the $50 million 
section 4010 gateway test. The final rule clarifies that contributions 
must be paid on or before the due date for filing specified in Sec.  
4010.10(a) of this part (without regard to the alternative due date 
under Sec.  4010.10(b) of this part). In addition, the final rule 
clarifies that contributions paid after the end of the plan year must 
be attributable to that plan year (i.e, the plan year for which they 
are to be taken into account). Thus, contributions made after the end 
of the

[[Page 11543]]

plan year and used to satisfy quarterly contribution requirements for 
the current plan year (the plan year in which they are made) are not 
taken into account. In addition, the final rule clarifies that 
contributions must be discounted back to the end of the plan year and 
the methodology for doing so.
    Commenters asked for guidance on a number of reporting issues, 
including participant counts, breakdown of benefit liabilities by 
participant categories, and expected retirement age. The section 4010 
filing instructions on the PBGC's Web site clarify these issues.
    Another commenter suggested that rather than reporting the specific 
actuarial assumptions used to determine benefit liabilities, filers 
should be permitted to simply indicate that the required assumptions 
were used. The section 4010 filing instructions on the PBGC's website 
allow this, except that filers will be required to enter the interest 
rate and expense load because in many situations the incorrect interest 
rate is used or the load is omitted.
    One commenter had concerns with allowing the PBGC, through 
instructions on its Web site, to modify the format of the information 
and to require the submission of additional information relating to the 
specific information described in the regulation. The commenter stated 
that it would impose a larger burden on filers if the PBGC does not 
formally announce and communicate the changes publicly and that filers 
would need advance notification of these changes. As explained in the 
preamble to the proposed rule (69 FR at 77680), the rule builds in the 
flexibility needed to allow the PBGC to update the electronic filing 
process as technology advances. Moreover, the rule allows the PBGC to 
use its Web site to specify additional information only if that 
information relates to information already required by the regulation. 
The PBGC intends to make any changes public by means of advance posting 
to its Web site and by other means as appropriate.
    Another commenter suggested that the PBGC should provide relief for 
filers that are unable to file because of problems with the PBGC's Web-
based software application or other PBGC systems (such as e-mail). The 
PBGC's general authority to provide waivers and extensions under 
Sec. Sec.  4000.5, 4000.32, and 4010.11 and the rules under Sec.  
4000.30 (relating to the need to resend an electronic submission for 
technical reasons) would cover such a case.
    One commenter asked the PBGC to extend the comment period from 30 
days to 90 days. The PBGC is not extending the comment period. In the 
preamble to the proposed rule, the PBGC explained in detail why a 30-
day comment period was appropriate (69 FR at 77681).
    One commenter expressed concern that the regulation provides no 
penalty relief for the first year's filings under the new procedures. 
Much of the commenter's concern has been addressed by the other 
modifications the PBGC has made to the proposed rule. Moreover, under 
its penalty policy, the PBGC can grant penalty relief for reasonable 
cause. The PBGC recognizes that filers may have section 4010 compliance 
questions, especially for the April 15, 2005, filing. The PBGC will 
provide information on its Web site, http://www.pbgc.gov, on how filers 
may seek guidance on section 4010 compliance questions.

Applicability

    This rule applies to reporting for any information year ending on 
or after December 31, 2004, except that the optional assumptions method 
(as provided in Sec.  4010.4(b)(2) of this part before amendment by 
this final rule) may be used for reporting for information years ending 
before December 31, 2005.

Compliance With Rulemaking and Paperwork Reduction Act Guidelines

    The Office of Management and Budget has determined that this final 
rule is a ``significant regulatory action'' and has therefore reviewed 
the final rule under Executive Order 12866.
    The PBGC certifies under section 605(b) of the Regulatory 
Flexibility Act that this final rule will not have a significant 
economic impact on a substantial number of small entities. The tests 
for identifying filers under section 4010(b) of ERISA effectively limit 
the filing requirements to large companies and their controlled groups. 
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.
    The PBGC is submitting the information requirements contained in 
this final rule to the Office of Management and Budget for review and 
approval under section 3507(d) of the Paperwork Reduction Act of 1995. 
This final rule modifies paperwork collections under both part 4000 
(approved under OMB control number 1212-0059; expires 10/31/06) and 
Part 4010 (approved under OMB control number 1212-0049; expires 2/29/
08). An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number.

List of Subjects

29 CFR Part 4000

    Pension insurance, Pensions, Reporting and recordkeeping 
requirements.

29 CFR Part 4010

    Pensions, Reporting and recordkeeping requirements.

0
For the reasons given above, the PBGC amends 29 CFR parts 4000 and 4010 
as follows.

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

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

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

0
2. Revise Sec.  4000.3 to read as follows:


Sec.  4000.3  What methods of filing may I use?

    (a) Paper filings. Except for the filings listed in paragraph (b) 
of this section, you may file any submission with us by hand, mail, or 
commercial delivery service.
    (b) Electronic filings. You must submit the information required 
under 29 CFR part 4010 electronically in accordance with the 
instructions on the PBGC's Web site, except as otherwise provided by 
the PBGC.
    (c) Information on electronic filings. Current information on 
electronic filings, including permitted methods, fax numbers, and e-
mail addresses, is--
    (1) On our Web site, http://www.pbgc.gov;
    (2) In our various printed forms and instructions packages; and
    (3) Available by contacting our Customer Service Center at 1200 K 
Street, NW., Washington, DC, 20005-4026; telephone 1-800-400-7242 (for 
participants), or 1-800-736-2444 (for practitioners). (TTY/TDD users 
may call the Federal relay service toll-free at 1-800-877-8339 and ask 
to be connected to the appropriate number.)

0
3. Amend Sec.  4000.4 by adding two sentences to the end of the section 
to read as follows:


Sec.  4000.4  Where do I file my submission?

    * * * You do not have to address electronic submissions made 
through our Web site. We are responsible for ensuring that such 
submissions go to the proper place.

0
4. Amend Sec.  4000.23 as follows:
0
a. Add a sentence to the end of paragraph (a); and
0
b. Add a sentence to the end of paragraph (b)(3).

[[Page 11544]]

    The additions read as follows:


Sec.  4000.23  When is my submission or issuance treated as filed or 
issued?

    (a) * * * A submission made through our Web site is considered to 
have been sent when you perform the last act necessary to indicate that 
your submission is filed and cannot be further edited or withdrawn.
    (b) * * *
    (3) * * * A submission made through our Web site is considered to 
have been received when we receive an electronic signal that you have 
performed the last act necessary to indicate that your submission is 
filed and cannot be further edited or withdrawn.

0
5. Amend Sec.  4000.29 by adding three sentences to the end of 
paragraph (a) introductory text to read as follows:


Sec.  4000.29  What if I use electronic delivery?

    (a) * * * A submission made through our Web site is considered to 
have been transmitted when you perform the last act necessary to 
indicate that your submission is filed and cannot be further edited or 
withdrawn. You do not have to address electronic submissions made 
through our Web site. We are responsible for ensuring that such 
submissions go to the proper place.
* * * * *

PART 4010--ANNUAL FINANCIAL AND ACTUARIAL INFORMATION REPORTING

0
6. The authority citation for part 4010 continues to read as follows:

    Authority: 29 U.S.C. 1302(b)(3), 1310.


0
7. Revise Sec.  4010.3 to read as follows:


Sec.  4010.3  Filing requirement.

    (a) In general. Except as provided in Sec.  4010.8(c) (relating to 
exempt plans) and except where waivers have been granted under Sec.  
4010.11, each filer shall submit to the PBGC annually, on or before the 
due date specified in Sec.  4010.10, all information specified in Sec.  
4010.6(a) with respect to all members of a controlled group and all 
plans maintained by members of a controlled group. Under Sec.  
4000.3(b) of this chapter, except as otherwise provided by the PBGC, 
the information shall be submitted electronically in accordance with 
the instructions on the PBGC's Web site.
    (b) Single controlled group submission. Any filer or other person 
may submit the information specified in Sec.  4010.6(a) on behalf of 
one or more members of a filer's controlled group.

0
8. Revise paragraphs (a)(3), (b), and (c) introductory text of Sec.  
4010.4 to read as follows:


Sec.  4010.4  Filers.

    (a) * * *
    (3) Any plan maintained by a member of a controlled group has been 
granted one or more minimum funding waivers under section 303 of ERISA 
or section 412(d) of the Code, totaling in excess of $1 million and, as 
of the end of the plan year ending within the information year, any 
portion thereof is still outstanding (determined in accordance with 
paragraph (c) of this section).
    (b) Unfunded vested benefits. (1) General. For purposes of the $50 
million test in paragraph (a)(1) of this section, the value of a plan's 
unfunded vested benefits is determined at the end of the plan year 
ending within the filer's information year in accordance with section 
4006(a)(3)(E)(iii) of ERISA and Sec.  4006.4 of this chapter (without 
reference to the exemptions and special rules under Sec.  4006.5 of 
this chapter).
    (2) Contributions. For purposes of determining the value of a 
plan's unfunded vested benefits under paragraph (b)(1) of this section, 
contributions made after the end of the plan year ending within the 
filer's information year are taken into account for that plan year only 
to the extent that they are--
    (i) Paid on or before the filing due date under Sec.  4010.10(a) 
(without regard to the alternative due date under Sec.  4010.10(b));
    (ii) Attributable to that plan year for funding purposes under 
ERISA section 302(c)(1) and section 412(c)(10) of the Code; and
    (iii) Discounted in accordance with Sec.  4006.4(b)(2)(iv) if 
unfunded vested benefits are determined under Sec.  4006.4(b) or in 
accordance with Sec.  4006.4(c)(4) if unfunded vested benefits are 
determined under Sec.  4006.4(c).
    (c) Outstanding waiver. Before the end of the statutory 
amortization period, a portion of a minimum funding waiver for a plan 
is considered outstanding unless--
* * * * *

0
9. Revise paragraph (c)(2) of Sec.  4010.5 to read as follows:


Sec.  4010.5  Information year.

* * * * *
    (c) * * *
    (2) Example. Filers A and B are members of the same controlled 
group. Filer A has a July 1 fiscal year, and filer B has an October 1 
fiscal year. The information year is the calendar year. Filer A's 
financial information with respect to its fiscal year ending June 30, 
2004, and filer B's financial information with respect to its fiscal 
year ending September 30, 2004, must be submitted to the PBGC following 
the end of the 2004 calendar year (the calendar year in which those 
fiscal years end). If filer B were an exempt entity, the information 
year would be filer A's July 1 fiscal year.

0
10. Revise paragraphs (a) and (b) of Sec.  4010.6 to read as follows:


Sec.  4010.6  Information to be filed.

    (a) General. (1) Current filers. A filer must submit the 
information specified in Sec.  4010.7 (identifying information), Sec.  
4010.8 (plan actuarial information) and Sec.  4010.9 (financial 
information) with respect to each member of the filer's controlled 
group and each plan maintained by any member of the controlled group, 
and any other information relating to the information specified in 
Sec. Sec.  4010.7 through 4010.9, as specified in the instructions on 
the PBGC's website.
    (2) Previous filers. If a filer for the immediately preceding 
information year is not required to file for the current information 
year, the filer must submit information, in accordance with the 
instructions on the PBGC's website, demonstrating why a filing is not 
required for the current information year.
    (b) Additional information. By written notification, the PBGC may 
require any filer to submit additional actuarial or financial 
information that is necessary to determine plan assets and liabilities 
for any period through the end of the filer's information year, or the 
financial status of a filer for any period through the end of the 
filer's information year (including information on exempt entities and 
exempt plans). The information must be submitted within ten days after 
the date of the written notification or by a different time specified 
therein.
* * * * *

0
11. Revise Sec.  4010.7 to read as follows:


Sec.  4010.7  Identifying information.

    (a) Filers. Each filer is required to provide, in accordance with 
the instructions on the PBGC's website, the following identifying 
information with respect to each member of the controlled group 
(excluding exempt entities)--
    (1) Current members. For an entity that is a member of the 
controlled group as of the end of the filer's information year--
    (i) The name, address, and telephone number of the entity and the 
legal relationships with other members of the controlled group (for 
example, parent, subsidiary);
    (ii) The nine-digit Employer Identification Number (EIN) assigned 
by

[[Page 11545]]

the IRS to the entity (or if there is no EIN for the entity, an 
explanation);
    (iii) If the entity became a member of the controlled group during 
the information year, the date the entity became a member of the 
controlled group; and
    (2) Former members. For any entity that ceased to be a member of 
the controlled group during the filer's information year, the date the 
entity ceased to be a member of the controlled group and the 
identifying information required by paragraph (a)(1) of this section as 
of the date immediately preceding the date the entity left the 
controlled group.
    (b) Plans. Each filer is required to provide, in accordance with 
the instructions on the PBGC's website, the following identifying 
information with respect to each plan (including exempt plans) 
maintained by any member of the controlled group (including exempt 
entities)--
    (1) Current plans. For a plan that is maintained by the controlled 
group as of the last day of the filer's information year--
    (i) The name of the plan;
    (ii) The EIN and the three-digit Plan Number (PN) assigned by the 
contributing sponsor to the plan (or if there is no EIN or PN for the 
plan, an explanation);
    (iii) If the EIN or PN of the plan has changed since the beginning 
of the filer's information year, the previous EIN or PN and an 
explanation;
    (iv) If the plan had not been maintained by the controlled group 
immediately before the filer's information year, the date the plan was 
first maintained by the controlled group during the information year; 
and
    (v) If, as of any day during the information year, the plan was 
frozen (for eligibility or benefit accrual purposes), a description of 
the date and the nature of the freeze (e.g., service is frozen but pay 
is not).
    (2) Former plans. For a plan that ceased to be maintained by the 
controlled group during the filer's information year, the date the plan 
ceased to be so maintained, identification of the controlled group 
currently maintaining the plan, and the identifying information 
required by paragraph (b)(1) as of the date immediately preceding that 
date.

0
12. Amend Sec.  4010.8 by revising paragraphs (a) and (b) as follows:


Sec.  4010.8  Plan actuarial information.

    (a) Required information. For each plan (other than an exempt plan) 
maintained by any member of the filer's controlled group, each filer is 
required to provide, in accordance with the instructions on the PBGC's 
website, the following actuarial information--
    (1) The number of--
    (i) Retired participants and beneficiaries receiving payments;
    (ii) Terminated vested participants, and
    (iii) Active participants;
    (2) The fair market value of the plan's assets;
    (3) The value of the plan's benefit liabilities, setting forth 
separately the value of the liabilities attributable to retired 
participants and beneficiaries receiving payments, terminated vested 
participants, and active participants, determined (in accordance with 
paragraph (d) of this section) at the end of the plan year ending 
within the filer's information year;
    (4) A description of the actuarial assumptions for interest (i.e., 
the specific interest rate(s), such as 5%), mortality, retirement age, 
and loading for administrative expenses, as used to determine the 
benefit liabilities in paragraph (a)(3) of this section; and
    (5) A copy of the actuarial valuation report for the plan year 
ending within the filer's information year that contains or is 
supplemented by the following information--
    (i) Each amortization base and related amortization charge or 
credit to the funding standard account (as defined in section 302(b) of 
ERISA or section 412(b) of the Code) for that plan year (excluding the 
amount considered contributed to the plan as described in section 
302(b)(3)(A) of ERISA or section 412(b)(3)(A) of the Code),
    (ii) The itemized development of the additional funding charge 
payable for that plan year pursuant to section 412(l) of the Code,
    (iii) The minimum funding contribution and the maximum deductible 
contribution for that plan year,
    (iv) The actuarial assumptions and methods used for that plan year 
for purposes of section 302(b) and (d) of ERISA or section 412(b) and 
(l) of the Code (and any change in those assumptions and methods since 
the previous valuation and justifications for any change),
    (v) A summary of the principal eligibility and benefit provisions 
on which the valuation of the plan was based (and any changes to those 
provisions since the previous valuation), along with descriptions of 
any benefits not included in the valuation, any significant events that 
occurred during that plan year, and the plan's early retirement 
factors,
    (vi) The current liability, vested and nonvested, calculated 
pursuant to section 412 of the Code, setting forth separately the value 
of the liabilities attributable to retired participants and 
beneficiaries receiving payments, terminated vested participants, and 
active participants,
    (vii) The expected increase in current liability due to benefits 
accruing during the plan year, and
    (viii) The expected plan disbursements for the plan year; and
    (6) A written certification by an enrolled actuary that, to the 
best of his or her knowledge and belief, the actuarial information 
submitted is true, correct, and complete and conforms to all applicable 
laws and regulations, provided that this certification may be qualified 
in writing, but only to the extent the qualification(s) are permitted 
under 26 CFR 301.6059-1(d).
    (b) Alternative compliance for plan actuarial information. If any 
of the information specified in paragraph (a)(5) of this section is not 
available by the date specified in Sec.  4010.10(a), a filer may 
satisfy the requirement to provide such information by--
    (1) Including a statement, with the material that is submitted to 
the PBGC, that the filer will file the unavailable information by the 
alternative due date specified in Sec.  4010.10(b), and
    (2) Filing such information (along with a certification by an 
enrolled actuary under paragraph (a)(6) of this section) with the PBGC 
by that alternative due date.
* * * * *

0
13. Revise paragraphs (a) introductory text and (b)(2) of Sec.  4010.9 
to read as follows:


Sec.  4010.9  Financial information.

    (a) General. Except as provided in this section, each filer is 
required to provide, in accordance with the instructions on the PBGC's 
Web site, the following financial information for each controlled group 
member (other than an exempt entity)--
* * * * *
    (b) * * *
    (2) For each controlled group member included in the consolidated 
financial statements (other than an exempt entity), the member's 
revenues and operating income for the information year, and net assets 
at the end of the information year.
* * * * *


[[Page 11546]]


    Issued in Washington, DC, this 4th day of March, 2005.
Elaine L. Chao,
Chairman, Board of Directors, Pension Benefit Guaranty Corporation.
    Issued on the date set forth above pursuant to a resolution of 
the Board of Directors authorizing its Chairman to issue this final 
rule.
Philip R. Hertz,
Secretary, Board of Directors, Pension Benefit Guaranty Corporation.
[FR Doc. 05-4623 Filed 3-8-05; 8:45 am]
BILLING CODE 7708-01-P