Missing Participants

SUMMARY: The Pension Benefit Guaranty Corporation is proposing a

regulation to implement the new missing participants program under

section 4050 of the Employee Retirement Income Security Act of 1974.

Section 4050 applies to single-employer defined benefit plans

distributing benefits in accordance with the standard termination

procedures of Title IV.

DATES: Comments must be received by October 10, 1995.

ADDRESSES: Comments should 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 that address.

Written comments will be available for public inspection at the PBGC's

Communications and Public Affairs Department, suite 240 at the same

address.

FOR FURTHER INFORMATION CONTACT: Harold J. Ashner, Assistant General

Counsel, or Deborah C. Murphy, Attorney, Office of the General Counsel,

suite 340, Pension Benefit Guaranty Corporation, 1200 K Street NW.,

Washington, DC 20005-4026; 202-326-4024 (202-326-4179 for TTY and TDD).

SUPPLEMENTARY INFORMATION: When a fully-funded single-employer defined

benefit pension plan terminates, the plan administrator must provide

each participant and beneficiary with his or her benefit by purchasing

an annuity from an insurer or paying a lump sum. Although in most cases

the plan administrator can find all participants and beneficiaries, the

plan administrator sometimes cannot do so.

Plan administrators provide benefits to persons who cannot be

located by purchasing annuities from insurers or, in some limited

cases, depositing funds in financial institutions. In certain

instances, an insurer may not provide an annuity, or a financial

institution may decline to accept the funds. A person who later comes

forward may have difficulty locating his or her benefit.

Section 4050, which applies after final regulations go into effect,

requires the plan administrator to distribute the benefits of a person

who cannot be located by purchasing an annuity from an insurance

company or paying funds to the PBGC. The PBGC will search for

participants and beneficiaries for whom funds are paid to the PBGC, and

pay benefits to those who are located (or their survivors).

Participants and beneficiaries may also contact the PBGC to get the

name of the insurance company from which an annuity was purchased or to

obtain their benefits from the PBGC.

This proposed rule implementing section 4050 applies to plans

undergoing standard terminations and to plans undergoing distress

terminations that are sufficient for guaranteed benefits and close out

under the standard termination rules.

The Administration has proposed extending the missing participants

program to terminating defined contribution plans and to terminating

defined benefit plans not covered by Title IV. This proposed rule

addresses only the enacted program for terminating defined benefit

plans covered by Title IV.

Diligent Search

A plan administrator must conduct a ``diligent search'' for a

missing participant before paying the benefit to the PBGC. (The term

``missing participant'' includes beneficiaries as well as participants,

and may include alternate payees under a qualified domestic relations

order.)

A search is a diligent search only if:

The plan administrator asks any known beneficiaries of the

missing participant for the missing participant's address; and

The plan administrator uses a commercial locator service.

The plan administrator must undertake the search at or after the

beginning of the plan termination process, and in a manner reasonably

expected to permit timely distributions to located participants and

beneficiaries. A plan administrator may use additional search methods,

such as the Internal Revenue Service's letter forwarding program for

those attempting to locate missing individuals, or mailing

correspondence to the missing participant's last known address with a

request to the post office for an address correction.

Payments to the PBGC (Designated Benefit)

Amount

A plan administrator that does not purchase an annuity for a

missing participant must pay to the PBGC an amount (the ``designated

benefit'') representing the value of the missing participant's plan

benefit. The method for determining the amount to be paid depends

mainly on the plan's provisions.

If under the plan the missing participant would be paid a mandatory

lump sum distribution--e.g., because the single sum value does not

exceed $3,500--the plan administrator pays the amount of the mandatory

lump sum to the PBGC.

If the missing participant would not receive a mandatory lump sum

under the plan, but the value of the missing participant's benefit is

de minimis (i.e., the benefit has a value of $3,500 or less) under the

``missing participant lump sum assumptions'', the plan administrator

pays that value.

For the remaining missing participants, the plan administrator

determines whether the missing participant can elect an immediate lump

sum under the plan as of the ``deemed distribution date'' selected by

the plan administrator (generally between the distribution date for

non-missing participants and the end of the permitted distribution

period). If not, the plan administrator pays the value of the missing

participant's benefit calculated under the ``missing participant

annuity assumptions.''

If the missing participant can elect a lump sum, the plan

administrator pays an amount equal to the greater of the lump sum using

plan assumptions or the value of the benefit using the missing

participant annuity assumptions.

PBGC Assumptions and Calculation Methods

Certain relevant information, such as the future marital status of

a missing participant or whether the missing participant is still

alive, is not available to the plan administrator. The PBGC has

developed a number of simplifying assumptions to deal with these and

other issues under the missing participants program. These assumptions

take into account the value of the various benefits the missing

participant (or his or her beneficiary) could receive under the plan.

The PBGC invites public comment on these assumptions.

The actuarial assumptions used under the missing participants

program are based on the lump sum and annuity assumptions in the PBGC's

single-employer valuation regulation (29 CFR Part 2619). (The PBGC

intends to propose new assumptions for valuing lump sums and the final

missing

[[Page 44159]]

participant regulations may reflect those changes.) However, the

mortality tables and loading charges in the valuation regulation are

modified and the ``most valuable benefit'' is used instead of the

benefit at the expected retirement age.

For a missing participant whose benefit is in pay status, the most

valuable benefit is the benefit in pay status. For a participant whose

benefit is not in pay status, the plan administrator assumes the

participant is married to a spouse the same age, and the participant's

qualified joint and survivor annuity under the plan is valued at each

age between the participant's earliest early retirement age and the

participant's normal retirement age to find the most valuable benefit.

For a beneficiary whose benefit is not in pay status, the plan

administrator assumes the beneficiary is not married, and the

beneficiary's automatic form of benefit under the plan is valued at

each age between the deceased participant's earliest early retirement

age and the participant's normal retirement age to find the most

valuable benefit.

Several special rules apply, including rules for when there are

employee contributions to the plan or distributions of residual assets

to missing participants.

Benefit Payments by the PBGC

If a plan administrator pays an amount to the PBGC for a missing

participant, and the missing participant (or his or her beneficiary or

estate) later contacts the PBGC or is located through the PBGC search

process, the PBGC provides benefits as described below. (If a plan

administrator purchases an annuity for a missing participant, and the

missing participant (or his or her beneficiary or estate) later

contacts the PBGC, the PBGC advises the person of the identity of the

insurance company that issued the annuity.)

Automatic Lump Sums

The PBGC pays a lump sum to a located missing participant if the

plan would have paid the missing participant a mandatory lump sum. The

lump sum equals the amount paid to the PBGC plus interest.

If, unknown to the plan administrator, the missing participant died

before the deemed distribution date, and if the plan so provides, the

PBGC pays the lump sum to the missing participant's beneficiary or

estate. If the missing participant dies on or after the deemed

distribution date, the PBGC pays the lump sum to the missing

participant's estate.

Similar rules apply when, although a mandatory lump sum would not

be paid to the missing participant under the plan, the PBGC could pay a

de minimis lump sum under the guaranteed benefit program because the

value of the benefit was $3,500 or less under the missing participant

lump sum assumptions. In this case, however, the participant or

beneficiary may decline the de minimis lump sum and elect to receive an

equivalent annuity to the extent that participants and beneficiaries in

the PBGC's guaranteed benefits program have that option.

Annuities

In other cases the PBGC pays the benefit in the forms available

under the guaranteed benefits program. If the missing participant is a

participant and is alive, the form is typically a qualified joint and

survivor annuity or, for unmarried participants, a single life annuity.

A living missing participant's annuity equals the annuity that can be

purchased with the amount the plan administrator paid to the PBGC

(minus the loading charge) using the missing participant annuity

assumptions in effect at the deemed distribution date. A missing

participant whose benefit was in pay status before becoming missing

receives back payments and continuation of the original benefit.

A missing participant who could have received an immediate lump sum

as of the deemed distribution date under the plan may elect a lump sum

payment from the PBGC (after obtaining any required spousal consent).

The lump sum equals the amount paid to the PBGC plus interest.

If the missing participant is a participant and dies before

receiving benefits from the PBGC, the PBGC pays the missing

participant's surviving spouse (unless the spouse has properly waived

the benefit) a preretirement survivor annuity, based on a joint and 50

percent survivor annuity that is the actuarial equivalent of the amount

paid to the PBGC (minus the loading charge). A beneficiary of such a

deceased missing participant who was in pay status receives the benefit

the beneficiary would have received under the plan, including, where

appropriate, back payments.

A beneficiary of a missing participant who died before the deemed

distribution date may establish that he or she is the proper

beneficiary under the plan, or that he or she would have received

benefits in a different form, at a different time, or in a different

amount. If the beneficiary establishes this to the PBGC's satisfaction,

the beneficiary will receive the revised benefit. However, the total

actuarial value as of the deemed distribution date of all benefits

payable will be limited to the designated benefit.

A spouse or other beneficiary of a deceased missing participant may

elect a lump sum equivalent of the survivor annuity if the missing

participant could have elected a lump sum under the plan.

Guaranteed Benefit

If a missing participant or his or her beneficiary establishes, to

the PBGC's satisfaction, that the designated benefit paid to the PBGC

was less than the amount that should have been paid as a designated

benefit, the PBGC will increase the benefit to reflect the correct

designated benefit or, if less, the value of the guaranteed benefit.

Procedural Requirements

The plan administrator pays the designated benefits to the PBGC by

the time the post-distribution certification (PDC) required under the

PBGC's plan termination regulation is due. (Interest is assessed if the

payment is late.) At the same time, the plan administrator must give

the PBGC certifications and information about all missing participants,

as required by new Schedule MP and its instructions, which are set

forth as an addendum to this proposed rule document.

Special rules are provided for missing participants who are

discovered to be missing shortly before the deemed distribution date

(``recently-missing participants'') and for participants who are

located late in the process (``late-discovered participants'').

The PBGC has discretion to return to the plan administrator the

designated benefit of a missing participant found within 30 days after

the PBGC receives the designated benefit. The plan administrator will

then distribute the benefit under the plan to that individual.

The PBGC will review compliance with the missing participant

program as part of its standard termination audits. The six-year

recordkeeping requirement that applies generally to plan records

associated with the termination process (Secs. 2616.9 and 2617.10)

applies to missing participant records.

Paperwork Reduction Act

The collection of information requirements contained in the

proposed regulation on missing participants, and the forms and

instructions to be used under the missing participants program, have

been submitted to the Office of Management and Budget for review under

section 3504(h) of the Paperwork Reduction Act of 1980. The PBGC needs

the information submitted by plan

[[Page 44160]]

administrators of terminating single-employer plans to identify, for

missing participants whose benefits are annuitized, the insurance

companies that are to provide their benefits; to attempt to locate

missing participants for whom benefits are paid to the PBGC and to pay

their benefits; and to monitor and audit compliance with all applicable

requirements.

The PBGC estimates that it will take an average of 2.46 hours to

comply with the collection of information requirements under the

proposed regulation and, based on its experience with trusteed plans,

that about 500 plans will be required to comply each year. Accordingly,

the estimated burden of the collection of information is 1,230 hours.

Copies of the proposed forms and instructions are set forth as an

addendum to this proposed rule document. Comments on the paperwork

provisions of the proposed rule and on the forms and instructions

should be mailed to the Office of Information and Regulatory Affairs,

Office of Management and Budget, Attention: Desk Officer for the

Pension Benefit Guaranty Corporation, Washington, DC 20503. Comments

may address (among other things)--

Whether the proposed collection of information is needed

for the proper performance of the PBGC's functions and will have

practical utility;

The accuracy of the PBGC's estimate of the burden of the

proposed collection of information;

Enhancement of the quality, utility, and clarity of the

information to be collected; and

Minimizing the burden of the collection of information on

respondents through the use of automated collection techniques (or

other forms of information technology) or in other ways.

In particular, the PBGC invites suggestions regarding procedures

for submitting some or all of the required information electronically.

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 because the rule will not have an annual effect on the economy of

$100 million or more or adversely affect in a material way the economy,

a sector of the economy, productivity, competition, jobs, the

environment, public health or safety, or State, local, or tribal

governments or communities; create a serious inconsistency or otherwise

interfere with an action taken or planned by another agency; materially

alter the budgetary impact of entitlements, grants, user fees, or loan

programs or the rights and obligations of recipients thereof; or raise

novel legal or policy issues arising out of legal mandates, the

President's priorities, or the principles set forth in Executive Order

12866.

The PBGC certifies under section 605(b) of the Regulatory

Flexibility Act that this regulation will not have a significant

economic impact on a substantial number of small entities. Pension

plans with fewer than 100 participants have traditionally been treated

as small plans. Plan administrators of terminating plans of all sizes

already have a duty to determine the amounts of all benefits, to

attempt to locate all persons entitled to benefits, and to annuitize or

provide cash accounts for those who cannot be found. The primary effect

of this regulation is to substitute a formal procedure involving the

PBGC for the informal procedures already being followed. The PBGC does

not expect the standardization of these procedures to have a

significant effect on plan administrators' burdens. Accordingly,

sections 603 and 604 of the Regulatory Flexibility Act do not apply.

List of Subjects

29 CFR Part 2606

Employee benefit plans, Pension insurance, Pensions, Administrative

practice and procedure.

29 CFR Parts 2616, 2617, and 2629

Employee benefit plans, Pension insurance, Pensions, Reporting and

recordkeeping requirements.

In consideration of the foregoing, the PBGC proposes to amend 29

CFR chapter XXVI as follows.

1. Part 2629 is added to subchapter C to read as follows:

PART 2629--MISSING PARTICIPANTS

Sec.

2629.1 Purpose and scope.

2629.2 Definitions.

2629.3 Method of distribution for missing participants.

2629.4 Diligent search.

2629.5 Designated benefit.

2629.6 Payment and required documentation.

2629.7 Benefits of missing participants--in general.

2629.8 Automatic lump sum.

2629.9 Annuity or elective lump sum--living missing participant.

2629.10 Annuity or elective lump sum--deceased missing participant.

2629.11 Limitations.

2629.12 Special rules.

Appendix A--Examples of designated benefit determinations for

missing participants under Sec. 2629.5.

Appendix B--Examples of benefit payments for missing participants

under Sec. 2629.8 through Sec. 2629.10.

Authority: 29 U.S.C. 1302(b)(3), 1350.

Sec. 2629.1 Purpose and scope.

(a) Purpose. This part prescribes rules for distributing benefits

under a terminating plan to any individual whom the plan administrator

has not located when distributing benefits under Sec. 2617.28(c) of

this chapter.

(b) Scope. This part applies to a plan if the plan's deemed

distribution date (or the date of other payments made in accordance

with Sec. 2629.12) is in a plan year beginning on or after the

effective date of this part.

Sec. 2629.2 Definitions.

For purposes of this part:

(a) Act means the Employee Retirement Income Security Act of 1974,

as amended.

(b) Code means the Internal Revenue Code of 1986, as amended.

(c) Deemed distribution date means the date selected by the plan

administrator of a terminating plan that is on or after the date when

all benefit distributions have been made under the plan except for

distributions to missing participants whose designated benefits are

paid to the PBGC, but not later than the last day of the period in

which distribution may be made under Sec. 2616.29(a) or 2617.28(a) of

this chapter (whichever applies).

(d) Designated benefit means the amount payable to the PBGC for a

missing participant pursuant to Sec. 2629.5.

(e) Designated benefit interest rate means the rate of interest

applicable to underpayments of guaranteed benefits by the PBGC under

Sec. 2623.11(d) of this chapter.

(f) Guaranteed benefit form means, with respect to a benefit, the

form in which the PBGC would pay a guaranteed benefit to a participant

or beneficiary in the PBGC's program for trusteed plans under parts

2613 and 2621 of this chapter (treating the deemed distribution date as

the date of plan termination for this purpose).

(g) Late-discovered participant means a participant or beneficiary

entitled to a distribution under a terminating plan whom the plan

administrator locates before the plan administrator pays the

individual's designated benefit to the PBGC (or distributes the

individual's benefit by purchasing an irrevocable commitment from an

insurer) and not more than 90 days before the deemed distribution date.

[[Page 44161]]

(h) Missing participant means a participant or beneficiary entitled

to a distribution under a terminating plan whom the plan administrator

has not located as of the date when the plan administrator pays the

individual's designated benefit to the PBGC (or distributes the

individual's benefit by purchasing an irrevocable commitment from an

insurer). In the absence of proof of death, individuals not located are

presumed living.

(i) Missing participant annuity assumptions means the interest rate

assumptions and actuarial methods (using the interest rates for annuity

valuation in Appendix B to part 2619 of this chapter) for valuing a

benefit to be paid by the PBGC as an annuity under part 2619 of this

chapter, applied--

(1) As if the deemed distribution date were the date of plan

termination;

(2) Using unisex mortality rates that are a fixed blend of 50

percent of the male mortality rates and 50 percent of the female

mortality rates from the 1983 Group Annuity Mortality Table as

prescribed in Rev. Rul. 95-6, 1995-4 IRB 22, January 23, 1995 (Internal

Revenue Bulletins are available from the Superintendent of Documents,

U.S. Government Printing Office, Washington, DC 20402);

(3) Without using the expected retirement age assumptions in

Subpart D to part 2619 of this chapter; and

(4) By adding $300 for each missing participant as an adjustment

(loading) for expenses (instead of the adjustment for expenses provided

for in Sec. 2619.49(a)(4) of this chapter).

(j) Missing participant forms and instructions means PBGC Forms 501

and 602, Schedule MP thereto, and related forms, and their

instructions.

(k) Missing participant lump sum assumptions means the interest

rate assumptions and actuarial methods (using the interest rates for

lump sum valuations in Appendix B to part 2619 of this chapter) for

valuing a benefit to be paid by the PBGC as a lump sum under part 2619

of this chapter, applied--

(1) As if the deemed distribution date were the date of plan

termination;

(2) Using mortality assumptions for healthy lives only (from Table

I of Appendix A to part 2619 of this chapter, substituting x+1 for x);

and

(3) Without using the expected retirement age assumptions in

Subpart D to part 2619 of this chapter.

(l) Pay status means, with respect to a benefit, that, as of the

deemed distribution date, one or more benefit payments have been made

or would have been made except for administrative delay or a waiting

period.

(m) Post-distribution certification means the post-distribution

certification required by Sec. 2616.29(b) or 2617.28(h) of this

chapter.

(n) Plan administrator means the administrator as defined in

section 4001(a)(1) of the Act.

(o) Recently-missing participant means a participant or beneficiary

entitled to a distribution under a terminating plan whom the plan

administrator discovers to be missing on or after the 90th day before

the deemed distribution date.

(p) Unloaded designated benefit means the designated benefit

reduced by $300.

Sec. 2629.3 Method of distribution for missing participants.

The plan administrator of a terminating plan shall distribute

benefits for each missing participant by--

(a) Purchasing an irrevocable commitment from an insurer in

accordance with Sec. 2617.28(c) or Sec. 2616.29(a)(1) of this chapter

(whichever is applicable); or

(b) Paying the PBGC a designated benefit in accordance with

Secs. 2629.4 through 2629.6 (subject to the special rules in

Sec. 2629.12).

Sec. 2629.4 Diligent search.

(a) Search required. A plan administrator shall make a diligent

search for each missing participant whose designated benefit is paid to

the PBGC. The search shall be made before the payment is made.

(b) Diligence. A search is a diligent search only if the plan

administrator--

(1) Begins the search at or after the time when notices of intent

to terminate are issued and carries on the search in such a manner that

if the individual is found, distribution to the individual can

reasonably be expected to be made on or before the deemed distribution

date (or, in the case of a recently-missing participant, on or before

the 90th day after the deemed distribution date);

(2) Makes inquiry of any plan beneficiaries and alternate payees of

the missing participant whose names and addresses are known to the plan

administrator; and

(3) Engages a commercial locator service to search for the missing

participant.

Sec. 2629.5 Designated benefit.

(a) Amount of designated benefit. The amount of the designated

benefit shall be the amount determined under paragraph (a)(1), (a)(2),

(a)(3), or (a)(4) of this section (whichever is applicable) or, if

less, the amount that could be provided under the plan to the missing

participant in the form of a single sum in accordance with section 415

of the Code.

(1) Mandatory lump sum. The designated benefit of a missing

participant required under a plan to receive a mandatory lump sum as of

the deemed distribution date shall be the lump sum payment that the

plan administrator would have distributed to the missing participant as

of the deemed distribution date.

(2) De minimis lump sum. The designated benefit of a missing

participant not described in paragraph (a)(1) of this section whose

benefit is not in pay status and whose benefit has a de minimis

actuarial present value ($3,500 or less) as of the deemed distribution

date under the missing participant lump sum assumptions shall be such

value.

(3) No lump sum. The designated benefit of a missing participant

not described in paragraph (a)(1) or (a)(2) of this section who, as of

the deemed distribution date, cannot elect an immediate lump sum under

the plan shall be the actuarial present value of the missing

participant's benefit as of the deemed distribution date under the

missing participant annuity assumptions.

(4) Elective lump sum. The designated benefit of a missing

participant not described in paragraph (a)(1), (a)(2), or (a)(3) of

this section shall be the greater of the amounts determined under the

methodologies of paragraph (a)(1) or (a)(3) of this section.

(b) Assumptions. When the plan administrator uses the missing

participant annuity assumptions or the missing participant lump sum

assumptions for purposes of determining the designated benefit under

paragraph (a) of this section, the plan administrator shall value the

most valuable benefit, as determined under paragraph (b)(1) of this

section, using the assumptions described in paragraph (b)(2) or (b)(3)

of this section (whichever is applicable).

(1) Most valuable benefit. For a missing participant whose benefit

is in pay status, the most valuable benefit is the benefit in pay

status. For a missing participant whose benefit is not in pay status,

the most valuable benefit is the benefit payable at the age on or after

the deemed distribution date (beginning with the participant's earliest

early retirement age and ending with the participant's normal

retirement age) for which the present value as of the deemed

distribution date is the greatest. The present value as of the deemed

[[Page 44162]]

distribution date with respect to any age is determined by multiplying:

(i) The monthly (or other periodic) benefit payable under the plan;

by

(ii) The present value (determined as of the deemed distribution

date using the missing participant annuity assumptions) of a $1 monthly

(or other periodic) annuity beginning at the applicable age.

(2) Participant. A missing participant who is a participant, and

whose benefit is not in pay status, is assumed to be married to a

spouse the same age, and the form of benefit that must be valued is the

qualified joint and survivor annuity benefit that would be payable

under the plan. If the participant's benefit is in pay status, the form

and beneficiary of the participant's benefit are the form of benefit

and beneficiary of the benefit in pay status.

(3) Beneficiary. A missing participant who is a beneficiary, and

whose benefit is not in pay status, is assumed not to be married, and

the form of benefit that must be valued is the survivor benefit that

would be payable under the plan. If the beneficiary's benefit is in pay

status, the form and beneficiary of the beneficiary's benefit are the

form of benefit and beneficiary of the benefit in pay status.

(4) Examples. See Appendix A for examples illustrating the

provisions of this section.

(c) Missed payments. In determining the designated benefit, the

plan administrator shall include the value of any payments that were

due before the deemed distribution date but that were not made.

(d) Payment of designated benefits. Payment of designated benefits

shall be made in accordance with Sec. 2629.6 and shall be deemed made

on the deemed distribution date.

Sec. 2629.6 Payment and required documentation.

(a) Time of payment and filing.

(1) General rule. The plan administrator shall pay designated

benefits, and file the information and certifications (of the plan

administrator and the plan's enrolled actuary) specified in the missing

participant forms and instructions, by the time the post-distribution

certification is due (determined in accordance with Secs. 2616.7(a) and

2617.8(a) of this chapter). Except as otherwise provided in the missing

participant forms and instructions, the plan administrator shall submit

the designated benefits, information, and certifications with the post-

distribution certification.

(2) Recently-missing participants. In the case of a recently-

missing participant, the plan administrator shall pay the designated

benefit by the time the amended post-distribution certification is due

under paragraph (a)(2)(ii) of this section. Except as otherwise

provided in the missing participant forms and instructions--

(i) Payment. The plan administrator shall submit the designated

benefit with the amended post-distribution certification described in

paragraph (a)(2)(ii) of this section; and

(ii) Filing. If the diligent search is not complete when the plan

administrator submits the filing described in paragraph (a)(1) of this

section, the plan administrator shall indicate this in that filing and

submit an amended filing (including an amended post-distribution

certification) within 120 days after the deemed distribution date.

(3) Late-discovered participants. When it is impracticable for the

plan administrator to include complete and accurate final information

on a late-discovered participant in a timely post-distribution

certification, the plan administrator shall submit an amended post-

distribution certification within 120 days after the deemed

distribution date in accordance with the missing participant forms and

instructions.

(b) Interest on late payments. If the plan administrator does not

pay a designated benefit by the time specified in paragraph (a) of this

section, the plan administrator shall pay interest as assessed by the

PBGC for the period beginning on the deemed distribution date and

ending on the date when the payment is received by the PBGC. Interest

will be assessed at the rate provided for late premium payments in

Sec. 2610.7 of this chapter.

(c) Supplemental information. Within 30 days after the date of a

written request from the PBGC, a plan administrator required to provide

the information and certifications described in paragraph (a) of this

section shall file supplemental information, as requested, for the

purpose of verifying designated benefits and determining benefits to be

paid by the PBGC under this part.

(1) Information mailed. Supplemental information filed under this

paragraph (c) is considered filed on the date of the United States

postmark stamped on the cover in which the information is mailed, if--

(i) The postmark was made by the United States Postal Service; and

(ii) The information was mailed postage prepaid, properly addressed

to the PBGC.

(2) Information delivered. When the plan administrator sends or

transmits the information to the PBGC by means other than the United

States Postal Service, the information is considered filed on the date

it is received by the PBGC. Information received on a weekend or

Federal holiday or after 5:00 p.m. on a weekday is considered filed on

the next regular business day.

Sec. 2629.7 Benefits of missing participants--in general.

(a) If annuity purchased. If a plan administrator distributes a

missing participant's benefit by purchasing an irrevocable commitment

from an insurer, and the missing participant (or his or her beneficiary

or estate) later contacts the PBGC, the PBGC will inform the person of

the identity of the insurer and the relevant policy number.

(b) If designated benefit paid. If the PBGC locates or is contacted

by a missing participant for whom a plan administrator paid a

designated benefit to the PBGC (or his or her beneficiary or estate),

the PBGC will pay benefits in accordance with Secs. 2629.8 through

2629.10 (subject to the limitations and special rules in Secs. 2629.11

and 2629.12).

(c) Examples. See Appendix B for examples illustrating the

provisions of Secs. 2629.8 through 2629.10.

Sec. 2629.8 Automatic lump sum.

This section applies to a missing participant whose designated

benefit was determined under Sec. 2629.5(a)(1) (mandatory lump sum) or

Sec. 2629.5(a)(2) (de minimis lump sum).

(a) General rule.

(1) Benefit paid. The PBGC will pay a single sum benefit equal to

the designated benefit plus interest at the designated benefit interest

rate from the deemed distribution date to the date on which the PBGC

pays the benefit.

(2) Payee. Payment shall be made--

(i) To the missing participant, if located;

(ii) If the missing participant died before the deemed distribution

date, and if the plan so provides, to the missing participant's

beneficiary or estate; or

(iii) If the missing participant dies on or after the deemed

distribution date, to the missing participant's estate.

(b) De minimis annuity alternative. If the guaranteed benefit form

for a missing participant whose designated benefit was determined under

Sec. 2629.5(a)(2) (de minimis lump sum) (or the guaranteed benefit form

for a beneficiary of such a missing participant) would provide for the

election of an annuity, the missing participant (or the beneficiary)

may elect to receive an annuity. If such an election is made--

(1) The PBGC will pay the benefit in the elected guaranteed benefit

form, beginning on the annuity starting date

[[Page 44163]]

elected by the missing participant (or the beneficiary), but not before

the later of the date of the election or the earliest date on which the

missing participant (or the beneficiary) could have begun receiving

benefits under the plan; and

(2) The monthly (or other periodic) benefit paid will be

actuarially equivalent to the designated benefit, i.e., each benefit

payment will equal the designated benefit divided by the present value

(determined as of the deemed distribution date under the missing

participant lump sum assumptions) of a $1 monthly (or other periodic)

annuity beginning on the annuity starting date.

Sec. 2629.9 Annuity or elective lump sum--living missing participant.

This section applies to a missing participant whose designated

benefit was determined under Sec. 2629.5(a)(3) (no lump sum) or

Sec. 2629.5(a)(4) (elective lump sum) and who is living on the date as

of which benefits commence.

(a) Missing participant whose benefit is not in pay status. The

PBGC will pay the benefit of a missing participant whose benefit is not

in pay status as follows.

(1) Time and form of benefit. The PBGC will pay the missing

participant's benefit in the guaranteed benefit form, beginning on the

annuity starting date elected by the missing participant (but not

before the later of the date of the election or the earliest date on

which the missing participant could have begun receiving benefits under

the plan).

(2) Amount of benefit. The PBGC will pay a monthly (or other

periodic) benefit that is actuarially equivalent to the unloaded

designated benefit, i.e., each benefit payment will equal the unloaded

designated benefit divided by the present value (determined as of the

deemed distribution date under the missing participant annuity

assumptions) of a $1 monthly (or other periodic) annuity beginning on

the annuity starting date.

(b) Missing participant whose benefit is in pay status. The PBGC

will pay the benefit of a missing participant whose benefit is in pay

status as follows.

(1) Time and form of benefit. The PBGC will pay the benefit in the

form that was in effect, beginning when the missing participant is

located.

(2) Amount of benefit. The PBGC will pay the monthly (or other

periodic) amount of the benefit that was in pay status, plus a lump sum

equal to the payments the missing participant would have received under

the plan, plus interest on the missed payments (at the plan rate up to

the deemed distribution date and thereafter at the designated benefit

interest rate) to the date as of which the PBGC pays the lump sum.

(c) Payment of lump sum. If a missing participant whose designated

benefit was determined under Sec. 2629.5(a)(4) (elective lump sum) so

elects, the PBGC will pay his or her benefit in the form of a single

sum. This election is not effective unless the missing participant's

spouse consents (if such consent would be required under section 205 of

the Act). The single sum equals the designated benefit plus interest

(at the designated benefit interest rate) from the deemed distribution

date to the date as of which the PBGC pays the benefit.

Sec. 2629.10 Annuity or elective lump sum--deceased missing

participant.

This section applies to a beneficiary of a deceased missing

participant whose designated benefit was determined under

Sec. 2629.5(a)(3) (no lump sum) or Sec. 2629.5(a)(4) (elective lump

sum) and whose benefit is not payable under Sec. 2629.9.

(a) If missing participant died with benefit not in pay status.

(1) General rule.

(i) Beneficiary. The PBGC will pay a benefit to the surviving

spouse of a missing participant who is a participant and whose benefit

is not in pay status (unless the surviving spouse has properly waived a

benefit in accordance with section 205 of the Act).

(ii) Form and amount of benefit. The PBGC will pay the survivor

benefit in the form of a single life annuity. Each benefit payment will

equal 50% of the quotient that results when the unloaded designated

benefit is divided by the present value (determined as of the deemed

distribution date under the missing participant annuity assumptions,

and assuming that the missing participant survived to the deemed

distribution date) of a $1 monthly (or other periodic) joint and 50%

survivor annuity in the form described in Sec. 2619.49(f)(1) of this

chapter beginning on the annuity starting date.

(iii) Time of benefit. The PBGC will pay the survivor benefit

beginning at the time elected by the surviving spouse (but not before

the later of the date of the election or the earliest date on which the

surviving spouse could have begun receiving benefits under the plan).

(2) If missing participant died before deemed distribution date.

Notwithstanding the provisions of paragraph (a)(1) of this section, if

a beneficiary of a missing participant who died before the deemed

distribution date establishes to the PBGC's satisfaction that he or she

is the proper beneficiary or would have received benefits under the

plan in a form, at a time, or in an amount different from the benefit

paid under paragraph (a)(1)(ii) or (a)(1)(iii) of this section, the

PBGC will make payments in accordance with the facts so established,

but only in the guaranteed benefit form.

(3) Elective lump sum. Notwithstanding the provisions of paragraphs

(a)(1) and (a)(2) of this section, if the beneficiary of a missing

participant whose designated benefit was determined under

Sec. 2629.5(a)(4) (elective lump sum) so elects, the PBGC will pay his

or her benefit in the form of a single sum. The single sum will be

equal to the actuarial present value (determined as of the deemed

distribution date under the missing participant annuity assumptions) of

the death benefit payable on the annuity starting date, plus interest

(at the designated benefit interest rate) from the deemed distribution

date to the date as of which the PBGC pays the benefit.

(b) If missing participant died with benefit in pay status.

(1) Beneficiary. The PBGC will pay benefits to the beneficiary (if

any) of the benefit that was in pay status.

(2) Form and amount of benefit. The PBGC will pay a monthly (or

other periodic) amount equal to the monthly (or other periodic) amount,

if any, that the beneficiary would have received under the form of

payment in effect, plus a lump sum payment equal to the payments the

beneficiary would have received under the plan subsequent to the

missing participant's death and prior to the date as of which the

benefit is paid under paragraph (b)(4) of this section, plus interest

on the missed payments (at the plan rate up to the deemed distribution

date and thereafter at the designated benefit interest rate) to the

date as of which the benefit is paid under paragraph (b)(4) of this

section.

(3) Lump sum payment to estate. The PBGC will make a lump sum

payment to the missing participant's estate equal to the payments that

the missing participant would have received under the plan for the

period prior to the missing participant's death, plus interest on the

missed payments (at the plan rate up to the deemed distribution date

and thereafter at the designated benefit interest rate) to the date as

of which the benefit is paid under paragraph (b)(4) of this section.

Notwithstanding the preceding sentence, if a beneficiary of a missing

participant other than the estate establishes to the PBGC's

satisfaction that the beneficiary is entitled to the

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lump sum payment, the PBGC will pay the lump sum to such beneficiary.

(4) Time of benefit. The PBGC will pay the survivor benefit when

the beneficiary is located.

Sec. 2629.11 Limitations.

(a) Exclusive benefit. The benefits provided for under Secs. 2629.8

through 2629.10 shall be the only benefits payable by the PBGC to

missing participants or to beneficiaries based on the benefits of

deceased missing participants.

(b) Limitation on benefit value. The total actuarial present value

of all benefits paid with respect to a missing participant under

Secs. 2629.8 through 2629.10, determined as of the deemed distribution

date, shall not exceed the missing participant's designated benefit.

(c) Guaranteed benefit. If a missing participant or his or her

beneficiary establishes to the PBGC's satisfaction that the benefit

under Secs. 2629.8 through 2629.10 (based on the designated benefit

actually paid to the PBGC) is less than the minimum benefit in this

paragraph (c), the PBGC shall instead pay the minimum benefit. The

minimum benefit shall be the lesser of:

(1) The benefit as determined under the PBGC's rules for paying

guaranteed benefits in trusteed plans under parts 2613 and 2621 of this

chapter (treating the deemed distribution date as the date of plan

termination for this purpose); or

(2) The benefit based on the designated benefit that should have

been paid under Sec. 2629.5.

(d) Limitation on annuity starting date. A missing participant (or

his or her survivor) may not elect an annuity starting date after the

later of--

(1) The required beginning date under section 401(a)(9) of the

Code; or

(2) The date when the missing participant (or the survivor) is

located.

Sec. 2629.12 Special rules.

(a) Late-discovered participants. The plan administrator of a plan

that terminates with one or more late-discovered participants shall

(after issuing notices to each such participant in accordance with

Secs. 2616.22 and 2616.27 or 2617.22 and 2617.23 of this chapter

(whichever apply)), distribute each such late-discovered participant's

benefit within the period described in Sec. 2616.29(a) or 2617.28(a) of

this chapter (whichever applies) if practicable or (if not) as soon

thereafter as practicable, but not more than 90 days after the deemed

distribution date.

(b) Missing participants located quickly. Notwithstanding the

provisions of Secs. 2629.8 through 2629.10, if the PBGC or the plan

administrator locates a missing participant within 30 days after the

PBGC receives the missing participant's designated benefit, the PBGC

may in its discretion return the missing participant's designated

benefit to the plan administrator, and the plan administrator shall

treat the missing participant like a late-discovered participant.

(c) Qualified domestic relations orders. Plan administrators and

the PBGC shall take the provisions of qualified domestic relations

orders (QDROs) under section 206(d)(3) of the Act into account in

determining designated benefits and benefit payments by the PBGC,

including treating an alternate payee under an applicable QDRO as a

missing participant or as a beneficiary of a missing participant, as

appropriate, in accordance with the terms of the QDRO. For purposes of

calculating the amount of the designated benefit of an alternate payee,

the plan administrator shall use the assumptions for a missing

participant who is a beneficiary under Sec. 2629.5(b).

(d) Employee contributions.

(1) Mandatory employee contributions. Notwithstanding the

provisions of Sec. 2629.5, if a missing participant's contributions

were mandatory (within the meaning of section 4044(a)(2) of the Act),

the missing participant's designated benefit shall not be less than the

sum of the missing participant's mandatory contributions and interest

to the deemed distribution date at the plan's rate or the rate under

section 204(c) of the Act (whichever produces the greater amount).

(2) Voluntary employee contributions.

(i) Applicability. This paragraph (d)(2) applies to any employee

contributions that were not mandatory (within the meaning of section

4044(a)(2) of the Act) to which a missing participant is entitled in

connection with the termination of a defined benefit plan.

(ii) Payment to PBGC. A plan administrator, in accordance with the

missing participant forms and instructions, shall pay the employee

contributions described in paragraph (d)(2)(i) of this section

(together with any earnings thereon) to the PBGC, and shall file

Schedule MP with the PBGC, by the time the designated benefit is due

under Sec. 2629.6. Any such amount shall be in addition to the

designated benefit and shall be separately identified.

(iii) Payment by PBGC. In addition to any other amounts paid by the

PBGC under Secs. 2629.8 through 2629.10, the PBGC shall pay any amount

paid to it under paragraph (d)(2)(ii) of this section, with interest at

the designated benefit interest rate from the date of receipt by the

PBGC to the date of payment by the PBGC, in the same manner as

described in Sec. 2629.8 (automatic lump sums), except that if the

missing participant died before the deemed distribution date and there

is no beneficiary, payment shall be made to the missing participant's

estate.

(e) Residual assets. The PBGC shall determine, in a manner

consistent with the purposes of this part and section 4050 of the Act,

how the provisions of this part shall apply to any distribution, to

participants and beneficiaries who cannot be located, of residual

assets remaining after the satisfaction of benefit liabilities in

connection with the termination of a defined benefit plan. The deadline

for payment of residual assets for a missing participant and for

submission to the PBGC of a Schedule MP (or an amended Schedule MP) is

the 30th day after the date on which all residual assets have been

distributed to all participants and beneficiaries other than missing

participants for whom payment for residual assets is made to the PBGC.

(f) Sufficient distress terminations. In the case of a plan

undergoing a distress termination (under section 4041(c) of the Act)

that is sufficient for at least all guaranteed benefits and that

distributes its assets in the manner described in section 4041(b)(3) of

the Act, the benefit assumed to be payable by the plan for purposes of

determining the amount of the designated benefit under Sec. 2629.5

shall be limited to the Title IV benefit (as defined in Sec. 2616.2 of

this chapter).

(g) Similar rules for later payments. If the PBGC determines, upon

audit of a plan termination, that one or more persons should receive

benefits (which may be in addition to benefits already provided) in

order for a termination to be valid, and one or more of such

individuals cannot be located, the PBGC shall determine, in a manner

consistent with the purposes of this part and section 4050 of the Act,

how the provisions of this part shall apply to such benefits.

Appendix A--Examples of Designated Benefit Determinations for

Missing Participants Under Sec. 2629.5

The calculation of the designated benefit under Sec. 2629.5 is

illustrated by the following examples.

Example 1. Plan A provides that any participant whose benefit

has a value at distribution of $1,750 or less will be paid a lump

sum, and that no other lump sums will be paid. P, Q, and R are

missing participants.

(1) As of the deemed distribution date, the value of P's benefit

is $1,700 under plan A's assumptions. Under Sec. 2629.5(a)(1), the

plan

[[Page 44165]]

administrator pays the PBGC $1,700 as P's designated benefit.

(2) As of the deemed distribution date, the value of Q's benefit

is $3,700 under plan A's assumptions and $3,200 under the missing

participant lump sum assumptions. Under Sec. 2629.5(a)(2), the plan

administrator pays the PBGC $3,200 as Q's designated benefit.

(3) As of the deemed distribution date, the value of R's benefit

is $3,400 under plan A's assumptions, $3,600 under the missing

participant lump sum assumptions, and $3,450 under the missing

participant annuity assumptions. Under Sec. 2629.5(a)(3), the plan

administrator pays the PBGC $3,450 as R's designated benefit.

Example 2. Plan B provides for a normal retirement age of 65 and

permits early commencement of benefits at any age between 60 and 65,

with benefits reduced by 5 percent for each year before age 65 that

the benefit begins. The qualified joint and 50 percent survivor

annuity payable under the terms of the plan requires in all cases a

16 percent reduction in the benefit otherwise payable. The plan does

not provide for elective lump sums.

(1) M is a missing participant who separated from service under

plan B with a deferred vested benefit. M is age 50 at the deemed

distribution date, and has a normal retirement benefit of $1,000 per

month payable at age 65 in the form of a single life annuity. M's

benefit as of the deemed distribution date has a value greater than

$3,500 using either plan assumptions or the missing participant lump

sum assumptions. Accordingly, M's designated benefit is to be

determined under Sec. 2629.5(a)(3).

(2) For purposes of determining M's designated benefit, M is

assumed to be married to a spouse who is also age 50 on the deemed

distribution date. M's monthly benefit in the form of the qualified

joint and survivor annuity under the plan varies from $840 at age 65

(the normal retirement age) ($1,000 x (1-.16)) to $630 at age 60

(the earliest retirement age) ($1,000 x (1-5 x (.05)) x (1-.16)).

(3) Under Sec. 2629.5(a)(3), M's benefit is to be valued using

the missing participant annuity assumptions. The select and ultimate

interest rates on Plan B's deemed distribution date are 7.50 percent

for the first 20 years and 5.75 percent thereafter. Using these

rates and the blended mortality table described in the definition of

``missing participant annuity assumptions'' in Sec. 2629.2(i)(2),

the plan administrator determines that the benefit commencing at age

60 is the most valuable benefit (i.e., the benefit at age 60 is more

valuable than the benefit at ages 61, 62, 63, 64 or 65). The present

value as of the deemed distribution date of each dollar of annual

benefit (payable monthly as a joint and 50 percent survivor annuity)

is $5.4307 if the benefit begins at age 60. (In accordance with

Sec. 2619.49(d)(5), the mortality of the spouse during the deferral

period is ignored.) Thus, without adjustment (loading) for expenses,

the value of the benefit beginning at age 60 is $41,056

(12 x $630 x 5.4307). The designated benefit is equal to this value

plus an expense adjustment of $300, or a total of $41,356.

Appendix B--Examples of Benefit Payments for Missing Participants

Under Secs. 2629.8 Through 2629.10

The provisions of Secs. 2629.8 through 2629.10 are illustrated

by the following examples.

Example 1. Participant M from Plan B (see Example 2 in Appendix

A of this part) is located. M's spouse is ten years younger than M.

M elects to receive benefits in the form of a joint and 50 percent

survivor annuity commencing at age 62.

(1) M's designated benefit was $41,356. The unloaded designated

benefit was $41,056. As of Plan B's deemed distribution date (and

using the missing participant annuity assumptions), the present

value per dollar of monthly benefit (payable monthly as a joint and

50 percent survivor annuity commencing at age 62 and reflecting the

actual age of M's spouse) is $4.7405. Thus, the monthly benefit to M

at age 62 is $722 ($41,056 / (4.7405 x 12)). M's spouse will receive

$361 (50 percent of $722) per month for life after the death of M.

(2) If M had instead been found to have died on or after the

deemed distribution date, and M's spouse wanted benefits to commence

when M would have attained age 62, the same calculation would be

performed to arrive at a monthly benefit of $361 to M's spouse.

Example 2. Participant P is a missing participant from Plan C, a

plan that allows elective lump sums upon plan termination. Plan C's

administrator pays a designated benefit of $10,000 to the PBGC on

behalf of P, who was age 30 on the deemed distribution date.

(1) P's spouse, S, is located and has a death certificate

showing that P died after the deemed distribution date with S as

spouse. S is the same age as P, and would like survivor benefits to

commence immediately, at age 55. S's benefit is the survivor's share

of the joint and 50 percent survivor annuity which is actuarially

equivalent, as of the deemed distribution date, to $9,700 (the

unloaded designated benefit).

(2) The select and ultimate interest rates on Plan C's deemed

distribution date were 7.50 percent for the first 20 years and 5.75

percent thereafter. Using these rates and the blended mortality

table described in Sec. 2629.2(i)(2), the present value as of the

deemed distribution date of each dollar of annual benefit (payable

monthly as a joint and 50 percent survivor annuity) is $2.4048 if

the benefit begins when S and P would have been age 55. Thus, the

monthly benefit to S commencing at age 55 is $168 (50 percent of

$9,700 / (2.4048 x 12)). Since P could have elected a lump sum upon

plan termination, S may elect a lump sum. S's lump sum is the

present value as of the deemed distribution date (using the missing

participant annuity assumptions) of the monthly benefit of $168,

accumulated with interest at the designated benefit interest rate to

the date paid.

PART 2606--RULES FOR ADMINISTRATIVE REVIEW OF AGENCY DECISIONS

2. The authority citation for part 2606 continues to read as

follows:

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

3. In Sec. 2606.1, paragraph (b)(8) is amended by removing the word

``and''; paragraph (b)(9) is amended by removing the period at the end

of the paragraph and adding in its place ``; and''; and a new paragraph

(b)(10) is added to read as follows:

Sec. 2606.1 Purpose and scope.

* * * * *

(b) Scope. * * *

* * * * *

(10) Determinations--

(i) That the amount of a participant's or beneficiary's benefit

under section 4050(a)(3) of the Act has been correctly computed based

on the designated benefit paid to the PBGC under section 4050(b)(2) of

the Act, or

(ii) That the designated benefit is correct, but only to the extent

that the benefit to be paid does not exceed the participant's or

beneficiary's guaranteed benefit.

* * * * *

Sec. 2606.51 [Amended]

4. Section 2606.51 is amended by removing the words

``Sec. 2606.1(b)(5) through (9)'' and adding in their place the words

``Sec. 2606.1(b)(5) through (10)''.

PART 2616--DISTRESS TERMINATIONS OF SINGLE-EMPLOYER PLANS

PART 2617--STANDARD TERMINATIONS OF SINGLE-EMPLOYER PLANS

5. The authority citations for parts 2616 and 2617 are revised to

read as follows:

Authority: 29 U.S.C. 1302(b)(3), 1341, 1344, 1350.

Sec. 2616.2, Sec. 2617.2 [Amended]

6. In Secs. 2616.2 and 2617.2, the definition of date of

distribution is amended by removing the period at the end of paragraph

(2); adding in its place a semicolon; and adding after the semicolon

the words ``except that date of distribution means the deemed

distribution date in the case of a designated benefit paid to the PBGC,

or a benefit provided after the deemed distribution date to a late-

discovered participant, in accordance with part 2629 of this chapter

(dealing with missing participants).''

Sec. 2616.7, Sec. 2617.8 [Amended]

7. In Secs. 2616.7 and 2617.8, paragraph (b) is amended by removing

the words ``Any document'' and adding in their place the words ``Except

as may otherwise be provided in applicable forms and instructions, any

document''.

[[Page 44166]]

Sec. 2616.29, Sec. 2617.28 [Amended]

8. Paragraph (b) of Sec. 2616.29 and paragraph (h) of Sec. 2617.28

are amended by adding at the end of Sec. 2616.29(b) and Sec. 2617.28(h)

the words ``The plan administrator shall be considered to have

satisfied this requirement if, in accordance with Sec. 2629.11 of this

chapter, the plan administrator timely files an amended post-

distribution certification that otherwise satisfies all applicable

requirements.''

9. In Sec. 2617.28, paragraph (c) is amended by adding at the end a

new sentence to read as follows:

Sec. 2617.28 Closeout of plan.

* * * * *

(c) Method of distribution. * * * The plan administrator shall

comply with part 2629 of this chapter (dealing with missing

participants), if applicable.

* * * * *

Issued in Washington, DC, this 21st day of August, 1995.

Martin Slate,

Executive Director, Pension Benefit Guaranty Corporation.

Addendum (Draft forms and instructions for Part 2629)

(Note: A draft of the missing participant forms and instructions

follows. These forms and instructions will not appear in the Code of

Federal Regulations.)

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[FR Doc. 95-21065 Filed 8-23-95; 8:45 am]

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