Annual Financial and Actuarial Information Reporting

SUMMARY: The Pension Benefit Guaranty Corporation is amending its

regulations to implement section 4010 of the Employee Retirement Income

Security Act of 1974, as amended by the Retirement Protection Act of

1994. Section 4010 requires controlled groups maintaining plans with

large amounts of underfunding to submit annually to the PBGC financial

and actuarial information as prescribed by the PBGC.

EFFECTIVE DATE: January 19, 1996.

FOR FURTHER INFORMATION CONTACT: Frank H. McCulloch, Senior Counsel,

Office of the General Counsel, Pension Benefit Guaranty Corporation,

1200 K Street NW., Washington, DC 20005-4026; 202-326-4116 (202-326-

4179 for TTY and TDD).

SUPPLEMENTARY INFORMATION: On July 6, 1995, the PBGC published in the

Federal Register (60 FR 35308) a proposed regulation implementing

section 4010 of ERISA. The PBGC received over 20 comments. Section 4010

requires a small number of large controlled groups--those with covered

pension plans that (1) have more than $50 million in unfunded vested

benefits in the aggregate, (2) have missed contributions in excess of

$1 million, or (3) have received funding waivers in excess of $1

million--to file annual financial and actuarial information.

Who Must File--$50 Million Test

In response to comments, the final regulation gives controlled

groups the option of using 100% of the 30-year Treasury interest rate

and the fair market value of assets (instead of 80% of the 30-year rate

and the actuarial value of assets) solely for purposes of calculating

the $50 million threshold test. These are the standards that will apply

for calculating the variable rate premium under ERISA section 4006

after the Secretary of the Treasury adopts revised mortality tables for

post-1999 plan years. Consistent with the post-1999 rules, the PBGC is

conditioning use of the option on the use of prescribed mortality

tables. For now, controlled groups may continue to use GAM-83 mortality

tables. If the PBGC amends the mortality tables under its valuation

regulation before the Secretary of the Treasury's revised tables go

into effect, the updated mortality tables must be used.

The PBGC did not adopt the suggestion that the PBGC waive reporting

if the controlled group's plans meet some prescribed funding percentage

or are fully funded on an ongoing basis. The absolute size of the

underfunding represents a large exposure to the PBGC and, in many

cases, to plan participants.

Who Must File--Missed Contributions and Waivers in Excess of $1

Million

In response to comments, the final regulation provides that missed

contributions will not lead to a reporting obligation if they are paid

within a ten-day grace period. The final regulation also clarifies

that, during the amortization period of a minimum funding waiver, the

waiver will be considered to be outstanding (thereby requiring

reporting) unless there is a credit balance in the funding standard

account that is sufficient to pay the outstanding balance of the waiver

and not available to satisfy future minimum funding requirements.

Exempt Entities

In response to comments, the final regulation exempts the

controlled group from submitting information for de minimis entities

(``exempt entities'') and exempts those entities from all reporting

requirements. An entity is de minimis if it does not sponsor a

nonexempt plan and its revenue, net assets and annual operating income

are five percent or less of the controlled group's revenue, net assets

and annual operating income. Alternatively, the net asset test or the

annual operating income test is satisfied if an entity's net assets or

annual operating income, respectively, is $5 million or less.

Commenters suggested that the PBGC exempt certain foreign members

and new members of controlled groups from the regulation's

requirements. In most cases, foreign corporations should not present

problems for controlled groups. A foreign corporation with U.S.

subsidiaries or a domestic corporation with foreign subsidiaries will

normally include each foreign entity in its consolidated financial

statements. The regulation does not require individual financial

information concerning a foreign company covered by consolidated

financial statements unless it sponsors a U.S. plan. The PBGC will

consider waivers or extensions in the limited cases where foreign

companies are not included in consolidated financial statements and are

not already exempt under the new de minimis exemption.

Other commenters requested a grace period with respect to entities

that become members of a controlled group late in the information year.

The de minimis rule will deal with many of these situations. Filers may

also request waivers or extensions where information about a filer or a

plan is not available by the due date because the filer entered the

controlled group late in an information year.

Actuarial Information

The proposed regulation required filers to provide the value of

plan benefit liabilities and assets, certain participant data matrices,

and an actuarial valuation report containing or supplemented with

specified information. The final regulation eliminates the requirement

that controlled groups routinely submit the participant data matrices.

(The PBGC may request this information.) The regulation permits the

enrolled actuary to qualify the actuarial certification in the same

manner as is permitted for the Form 5500, Schedule B.

Commenters objected to having to determine the value of benefit

liabilities using the PBGC's termination assumptions. The PBGC needs

this information to determine the risk of a transaction to participants

and to premium payers and to determine whether to terminate a plan.

Other liability measures do not reflect plan underfunding on a

termination basis; they can seriously understate the PBGC's exposure

for plans subject to this regulation. The comments confirmed that the

cost of calculating benefit liabilities consists mainly of a one-time

cost for adding the PBGC's termination assumptions to existing computer

programs. The final regulation simplifies the calculation somewhat by

providing for use only of the PBGC's annuity methodology (rather than

both its annuity and lump sum methodology).

Exempt Plans

The proposed regulation exempted reporting for plans with fewer

than 500 participants and plans with no unfunded benefit liabilities

(using the PBGC's termination assumptions), other than plans with

funding waivers or missed contributions. The final regulation keeps but

simplifies this exemption. Solely for exemption purposes, the

controlled group may determine the value of a plan's benefit

liabilities using the plan's retirement assumptions (instead of the

PBGC's expected retirement age assumptions).

[[Page 66055]]

Additional Information

Some commenters questioned the provision under which the PBGC may

require filers to submit additional information within ten days.

Commenters suggested that the response time be lengthened, that the

type of information that may be requested be limited, or that the

provision be deleted.

It is the PBGC's ability to get the additional information quickly

that allows the PBGC to limit the information that controlled groups

must submit on a routine basis. The PBGC will grant extensions of time

to respond where a filer demonstrates that it is making a reasonable

and good faith effort to respond to the information request.

In response to comments, the final regulation clarifies that this

additional information is information that could have been required

annually (i.e., information that is necessary to determine a plan's

assets and liabilities, or the financial status of a filer, for any

period through the end of the information year).

Confidentiality

Some commenters expressed concern about the confidentiality of

filer tax information. The regulation does not require the submission

of a filer's tax return as part of an annual report; it merely permits

the filer to substitute its tax return for the audited or unaudited

financial statements required by the statute. Moreover, the statute and

regulation provide for confidentiality of information similar to that

afforded to Hart-Scott-Rodino antitrust submissions. Filers may request

that information they submit not be disclosed to other members of their

controlled group.

Information Year

One commenter suggested that the regulation eliminate the concept

of an information year and that filers instead be required to use the

same reporting year as they use for Form 5500. The information year is

a simplifying measuring period that does not require any new reports.

For most controlled groups the information year will be the same as the

fiscal year on which they prepare their consolidated returns. (The Form

5500 reporting year is based on each plan's plan year, which may not

match the plan years of other plans or the fiscal years of controlled

group members.)

In response to comments, the final regulation excludes the fiscal

years of exempt entities in determining the information year for a

controlled group. The final regulation clarifies that the controlled

group need not restate consolidated financial statements solely because

they include information on entities that are not members of the

controlled group or that are exempt entities.

Due Date

Commenters questioned the due date for information--105 days after

the close of a filer's information year. This due date is coordinated

with the Securities and Exchange Commission's annual reporting date for

public companies. In most instances, controlled groups will have

prepared audited financial statements prior to that date for public

filing and can simply refer to those filings in their submissions to

the PBGC. The actuarial information required by that date is similar to

pension information required by Financial Accounting Standard 87 that

must be included in those financial statements. (The regulation

generally allows other actuarial information to be delayed until 15

days after the filing deadline for the Form 5500.)

If the due date presents problems for non-public companies or in

other unusual circumstances, filers should request extensions of the

deadlines. Filers experiencing problems in preparing or submitting

required information should apply for extensions as early as possible,

rather than shortly before the due date.

E.O. 12866 and Regulatory Flexibility Act

The PBGC has determined that this action is not a ``significant

regulatory action'' under the criteria set forth in Executive Order

12866. The provisions of this regulation implement policy decisions

made by Congress in requiring filers to provide audited financial

statements and other required information annually to the PBGC. The

provisions reflect the PBGC's interpretation of the statutory standards

and prescribe the form, time, and manner in which the required

information should be submitted.

Under section 605(b) of the Regulatory Flexibility Act, the PBGC

certifies (for the reasons stated in the proposed rule at 60 FR 35308,

35310, July 6, 1995) that this regulation will not have a significant

economic impact on a substantial number of small entities. Accordingly,

as provided in section 605 of the Regulatory Flexibility Act (5 U.S.C.

601, et seq.), sections 603 and 604 do not apply.

Paperwork Reduction Act

The collection of information requirements in this regulation have

been approved by the Office of Management and Budget under control

number 1212-0049. 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.

Responses to this collection of information are mandatory. (See

ERISA sections 4002(b)(3) and 4010.) The PBGC needs this information,

and will use it, to identify controlled groups with severely

underfunded plans, to determine the financial status of controlled

group members and evaluate the potential risk of future losses

resulting from corporate transactions and the need to take legal

action, and to negotiate agreements under which controlled groups would

provide additional plan funding. Confidentiality of information

submitted is provided for in Sec. 2628.12 of the regulation. (See ERISA

section 4010(c).)

The PBGC estimates that the average annual burden for this

collection of information will be 13.2 hours and $24,315 for each of

approximately 100 controlled groups. Comments concerning the accuracy

of this burden estimate and any suggestions for reducing the burden of

this collection of information should be submitted to the PBGC's Office

of General Counsel, 1200 K Street, NW, Suite 340, Washington, DC 20005-

4026.

List of Subjects in 29 CFR Part 2628

Employee benefit plans, Pension insurance, Pensions, Reporting and

recordkeeping requirements.

For the reasons set forth above, the PBGC is amending subchapter C,

chapter XXVI of 29 CFR by adding a new part 2628 to read as follows:

PART 2628--ANNUAL FINANCIAL AND ACTUARIAL INFORMATION REPORTING

Sec.

2628.1 Purpose and scope.

2628.2 Definitions.

2628.3 Filing requirement.

2628.4 Filers.

2628.5 Information year.

2628.6 Information to be filed.

2628.7 Identifying information.

2628.8 Plan actuarial information.

2628.9 Financial information.

2628.10 Due date and filing with the PBGC.

2628.11 Waivers and extensions.

2628.12 Confidentiality of information submitted.

2628.13 Penalties.

2628.14 OMB control number.

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

[[Page 66056]]

Sec. 2628.1 Purpose and scope.

(a) Purpose. This part prescribes the requirements for annual

filings with the PBGC under section 4010 of the Act.

(b) Scope. This part applies to filers for any information year

ending on or after December 31, 1995.

Sec. 2628.2 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) Contributing sponsor means a person who is a contributing

sponsor as defined in section 4001(a)(13) of the Act.

(d) Controlled group means, with respect to any person, a group

consisting of that person and all other persons under common control

with that person, determined under part 2612 of this chapter.

(e) Exempt entity means a person who does not have to file

information and about whom information does not have to be filed, as

described in Sec. 2628.4(d) of this part.

(f) Exempt plan means a plan about which actuarial information does

not have to be filed, as described in Sec. 2628.8(c) of this part.

(g) Fair market value of the plan's assets means the fair market

value of the plan's assets at the end of the plan year ending within

the filer's information year (determined without regard to any

contributions receivable).

(h) Filer means a person who is required to file reports, as

described in Sec. 2628.4 of this part.

(i) Fiscal year means, with respect to a person, the person's

annual accounting period or, if the person has not adopted a closing

date, the calendar year.

(j) Information year means the year determined under Sec. 2628.5 of

this part.

(k) Person means an individual, partnership, joint venture,

corporation, mutual company, joint-stock company, trust, estate,

unincorporated organization, association, or employee organization

representing any group of participants for purposes of collective

bargaining.

(l) Plan means a single-employer plan, as defined in section

4001(a)(15) of the Act, to which Title IV of the Act applies.

(m) Plan year means the calendar, policy, or fiscal year on which

the records of a plan are kept.

Sec. 2628.3 Filing requirement.

(a) In general. Except as provided in Sec. 2628.8(c) (relating to

exempt plans) and except where waivers have been granted under

Sec. 2628.11 of this part, each filer shall submit to the PBGC

annually, on or before the due date specified in Sec. 2628.10, all

information specified in Sec. 2628.6(a) with respect to all members of

a controlled group and all plans maintained by members of a controlled

group.

(b) Single controlled group submission. Any filer or other person

may submit the information specified in Sec. 2628.6(a) on behalf of one

or more members of a filer's controlled group. If a person other than a

filer submits the information, the submission must also include a

written power of attorney signed by a filer authorizing the person to

act on behalf of one or more filers.

Sec. 2628.4 Filers.

(a) General. A contributing sponsor of a plan and each member of

the contributing sponsor's controlled group is a filer with respect to

an information year (unless exempted under paragraph (d) of this

section) if--

(1) the aggregate unfunded vested benefits of all plans (including

any exempt plans) maintained by the members of the contributing

sponsor's controlled group exceed $50 million (disregarding those plans

with no unfunded vested benefits);

(2) any member of a controlled group fails to make a required

installment or other required payment to a plan and, as a result, the

conditions for imposition of a lien described in section 302(f)(1) (A)

and (B) of the Act or section 412(n)(1) (A) and (B) of the Code have

been met during the information year, and the required installment or

other required payment is not made within ten days after its due date;

or

(3) any plan maintained by a member of a controlled group has been

granted one or more minimum funding waivers under section 303 of the

Act or section 412(d) of the Code totaling in excess of $1 million

that, as of the end of the plan year ending within the information

year, are still outstanding (determined in accordance with paragraph

(c) of this section).

(b) Unfunded vested benefits.

(1) General. Except as provided in paragraph (b)(2) of this

section, 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 the

Act and Sec. 2610.23 of this chapter (without reference to the

exemptions and special rules under Sec. 2610.24).

(2) Optional assumptions. Prior to the first information year in

which the mortality assumptions prescribed under section

302(d)(7)(C)(ii)(II) of the Act apply to all of the plans maintained by

a controlled group, the value of unfunded vested benefits for a plan

may be determined by substituting for the respective assumptions used

under paragraph (b)(1) of this section (but not using the alternative

calculation method under Sec. 2610.23(c) of this chapter) all of the

following assumptions:

(i) an interest rate equal to 100% of the annual yield for 30-year

Treasury constant maturities (as reported in Federal Reserve

Statistical Release G.13 and H.15) for the last full calendar month in

the plan year;

(ii) the fair market value of the plan's assets; and

(iii) the mortality tables described in section 302(d)(7)(C)(ii)(I)

of the Act or section 412(l)(7)(C)(ii)(I) of the Code; provided that

for any plan year ending on or after the effective date of an amendment

to the mortality tables used to value benefits to be paid as annuities

in trusteed plans under part 2619 of this chapter, those amended

mortality tables.

(c) Outstanding waiver. Before the end of the statutory

amortization period, a minimum funding waiver for a plan is considered

outstanding unless--

(1) a credit balance exists in the funding standard account

(described in section 302(b) of the Act and section 412(b) of the Code)

that is no less than the outstanding balance of all waivers for the

plan;

(2) a waiver condition or contractual obligation requires that a

credit balance as described in paragraph (c)(1) continue to be

maintained as of the end of each plan year during the remainder of the

statutory amortization period for the waiver; and

(3) no portion of any credit balance described in paragraph (c)(1)

is used to make any required installment under section 302(e) of the

Act or section 412(m) of the Code for any plan year during the

remainder of the statutory amortization period.

(d) Exempt entities. A person is an exempt entity if the person--

(1) is not a contributing sponsor of a plan (other than an exempt

plan);

(2) has revenue for its fiscal year ending within the controlled

group's information year that is five percent or less of the controlled

group's revenue for the fiscal year(s) ending within the information

year;

(3) has annual operating income for the fiscal year ending within

the controlled group's information year that is no more than the

greater of--

(i) five percent of the controlled group's annual operating income

for the

[[Page 66057]]

fiscal year(s) ending within the information year, or

(ii) $5 million; and

(4) has net assets at the end of the fiscal year ending within the

controlled group's information year that is no more than the greater

of--

(i) five percent of the controlled group's net assets at the end of

the fiscal year(s) ending within the information year, or

(ii) $5 million.

Sec. 2628.5 Information year.

(a) Determinations based on information year. An information year

is used under this part to determine which persons are filers

(Sec. 2628.4), what information a filer must submit (Secs. 2628.6-

2628.9), whether a plan is an exempt plan (Sec. 2628.8(c)), and the due

date for submitting the information (Sec. 2628.10(a)).

(b) General. Except as provided in paragraph (c) of this section, a

person's information year shall be the fiscal year of the person. A

filer is not required to change its fiscal year or the plan year of a

plan, to report financial information for any accounting period other

than an existing fiscal year, or to report actuarial information for

any plan year other than an existing plan year.

(c) Controlled group members with different fiscal years.

(1) Use of calendar year. If members of a controlled group

(disregarding any exempt entity) report financial information on the

basis of different fiscal years, the information year shall be the

calendar year.

(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,

1996, and filer B's financial information with respect to its fiscal

year ending September 30, 1996, must be submitted to the PBGC following

the end of the 1996 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.

Sec. 2628.6 Information to be filed.

(a) General. A filer must submit the information specified in

Sec. 2628.7 (identifying information), Sec. 2628.8 (plan actuarial

information) and Sec. 2628.9 (financial information) of this part with

respect to each member of the filer's controlled group and each plan

maintained by any member of the controlled group.

(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. The information must be submitted within ten

days after the date of the written notification or by a different time

specified therein.

(c) Previous submissions. If any required information has been

previously submitted to the PBGC, a filer may incorporate this

information into the required submission by referring to the previous

submission.

Sec. 2628.7 Identifying information.

(a) Filers. Each filer is required to provide the following

identifying information with respect to each member of the controlled

group (excluding exempt entities)--

(1) the name, address, and telephone number of each member of the

controlled group and the legal relationships of each (for example,

parent, subsidiary); and

(2) the nine-digit Employer Identification Number (EIN) assigned by

the Internal Revenue Service to each member (or if there is no EIN for

a member, an explanation).

(b) Plans. Each filer is required to provide the following

identifying information with respect to each plan (including exempt

plans) maintained by any member of the controlled group (including

exempt entities)--

(1) the name of each plan;

(2) the EIN and the three-digit Plan Number (PN) assigned by the

contributing sponsor to each plan (or if there is no EIN or PN for a

plan, an explanation); and

(3) if the EIN or PN of a plan has changed since the beginning of

the filer's information year, the previous EIN or PN and an

explanation.

Sec. 2628.8 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 the following actuarial information--

(1) the fair market value of the plan's assets;

(2) the value of the plan's benefit liabilities (determined in

accordance with paragraph (d) of this section) at the end of the plan

year ending within the filer's information year;

(3) 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

the Act 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 the Act 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 the Act 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), and

(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; and

(4) 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 Sec. 301.6059-1(d).

(b) Alternative compliance for plan actuarial information. If any

of the information specified in paragraph (a)(3) of this section is not

available by the date specified in Sec. 2628.10(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. 2628.10(b) of this part, and

(2) filing such information (along with a certification by an

enrolled actuary under paragraph (a)(4) of this section) with the PBGC

by that alternative due date.

(c) Exempt plan. The actuarial information specified in this

section is not required with respect to a plan that, as of the end of

the plan year ending within the filer's information year, has fewer

than 500 participants or has

[[Page 66058]]

benefit liabilities (determined in accordance with paragraph (d) of

this section) equal to or less than the fair market value of the plan's

assets, provided that the plan--

(1) has received, on or within ten days after their due dates, all

required installments or other payments required to be made during the

information year under section 302 of the Act or section 412 of the

Code; and

(2) has no minimum funding waivers outstanding (as described in

Sec. 2628.4(c) of this part) as of the end of the plan year ending

within the information year.

(d) Determination of benefit liabilities. The value of a plan's

benefit liabilities (within the meaning of section 4001(a)(16) of the

Act) at the end of a plan year shall be determined using the plan

census data described in paragraph (d)(1) of this section and the

actuarial assumptions and methods described in paragraph (d)(2) or,

where applicable, (d)(3) of this section.

(1) Census data.

(i) Census data period. Plan census data shall be determined (for

all plans for any information year) either as of the end of the plan

year or as of the beginning of the next plan year.

(ii) Projected census data. If actual plan census data is not

available, a plan may use a projection of plan census data from a date

within the plan year. The projection must be consistent with

projections used to measure pension obligations of the plan for

financial statement purposes and must give a result appropriate for the

end of the plan year for these obligations. For example, adjustments to

the projection process will be required where there has been a

significant event (such as a plan amendment or a plant shutdown) that

has not been reflected in the projection data.

(2) Actuarial assumptions and methods. The value of benefit

liabilities shall be determined using the assumptions and methods

applicable to the valuation of benefits to be paid as annuities in

trusteed plans terminating at the end of the plan year (as prescribed

in part 2619, subpart C, of this chapter).

(3) Special actuarial assumptions for exempt plan determination.

Solely for purposes of determining whether a plan is an exempt plan,

the value of benefit liabilities may be determined by substituting for

the retirement age assumptions in paragraph (d)(2) the retirement age

assumptions used by the plan for that plan year for purposes of section

302(d) of the Act or section 412(l) of the Code.

Sec. 2628.9 Financial information.

(a) General. Except as provided in this section, each filer is

required to provide the following financial information for each

controlled group member (other than an exempt entity)--

(1) audited financial statements for the fiscal year ending within

the information year (including balance sheets, income statements, cash

flow statements, and notes to the financial statements);

(2) if audited financial statements are not available by the date

specified in Sec. 2628.10(a), unaudited financial statements for the

fiscal year ending within the information year; or

(3) if neither audited nor unaudited financial statements are

available by the date specified in Sec. 2628.10(a), copies of federal

tax returns for the tax year ending within the information year.

(b) Consolidated financial statements. If the financial information

of a controlled group member is combined with the information of other

group members in consolidated financial statements, a filer may provide

the following financial information in lieu of the information required

in paragraph (a) of this section--

(1) the audited consolidated financial statements for the filer's

information year or, if the audited consolidated financial statements

are not available by the date specified in Sec. 2628.10(a), unaudited

consolidated financial statements for the fiscal year ending within the

information year; and

(2) for each controlled group member included in the consolidated

financial statements that is a contributing sponsor of a plan (other

than an exempt plan), the contributing sponsor's revenues and operating

income for the information year, and net assets at the end of the

information year.

(c) Subsequent submissions. If unaudited financial statements are

submitted as provided in paragraph (a)(2) or (b)(1) of this section,

audited financial statements must thereafter be filed within 15 days

after they are prepared. If federal tax returns are submitted as

provided in paragraph (a)(3) of this section, audited and unaudited

financial statements must thereafter be filed within 15 days after they

are prepared.

(d) Submission of public information. If any of the financial

information required by paragraphs (a) through (c) of this section is

publicly available, the filer, in lieu of submitting such information

to the PBGC, may include a statement with the other information that is

submitted to the PBGC indicating when such financial information was

made available to the public and where the PBGC may obtain it. For

example, if the controlled group member has filed audited financial

statements with the Securities and Exchange Commission, it need not

file the financial statements with PBGC but instead can identify the

SEC filing as part of its submission under this part.

(e) Inclusion of information about non-filers and exempt entities.

Consolidated financial statements provided pursuant to paragraph (b)(1)

of this section may include financial information of persons who are

not controlled group members (e.g., joint ventures) or are exempt

entities.

Sec. 2628.10 Due date and filing with the PBGC.

(a) Due date. Except as permitted under paragraph (b) of this

section, a filer shall file the information required under this part

with the PBGC on or before the 105th day after the close of the filer's

information year.

(b) Alternative due date. A filer that includes the statement

specified in Sec. 2628.8(b)(1) with its submission to the PBGC by the

date specified in paragraph (a) of this section must submit the

actuarial information specified in Sec. 2628.8(b)(2) within 15 days

after the deadline for filing the plan's annual report (Form 5500

series) for the plan year ending within the filer's information year

(see Sec. 2520.104a-5(a)(2) of this title).

(c) How to file. Requests and information may be delivered by mail,

by delivery service, by hand, or by any other method acceptable to the

PBGC, to: Corporate Finance and Negotiations Department, Pension

Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005-

4026.

(d) Date when information filed. Information filed under this part

is considered filed--

(1) 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 document was mailed postage prepaid, properly addressed to

the PBGC; or

(2) if the conditions stated in paragraph (d)(1) of this section

are not met, 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.

(e) Computation of time. In computing any period of time under this

part, the day of the act or event from which the designated period of

time begins to run shall not be included. The last day of the period so

computed shall be

[[Page 66059]]

included, unless it is a weekend or Federal holiday, in which event the

period runs until the end of the next day that is not a weekend or

Federal holiday.

Sec. 2628.11 Waivers and Extensions.

The PBGC may waive the requirement to submit information with

respect to one or more filers or plans or may extend the applicable due

date or dates specified in Sec. 2628.10 of this part. The PBGC will

exercise this discretion in appropriate cases where it finds convincing

evidence supporting a waiver or extension; any waiver or extension may

be subject to conditions. A request for a waiver or extension must be

filed in writing with the PBGC at the address provided in

Sec. 2628.10(c) no later than 15 days before the applicable date

specified in Sec. 2628.10 of this part, and must state the facts and

circumstances on which the request is based.

Sec. 2628.12 Confidentiality of information submitted.

In accordance with Sec. 2603.15(b) of this chapter and section

4010(c) of the Act, any information or documentary material that is not

publicly available and is submitted to the PBGC pursuant to this part

shall not be made public, except as may be relevant to any

administrative or judicial action or proceeding or for disclosures to

either body of Congress or to any duly authorized committee or

subcommittee of the Congress.

Sec. 2628.13 Penalties.

If all of the information required under this part is not provided

within the specified time limit, the PBGC may assess a separate penalty

under section 4071 of the Act against the filer and each member of the

filer's controlled group (other than an exempt entity) of up to $1,000

a day for each day that the failure continues. The PBGC may also pursue

other equitable or legal remedies available to it under the law.

Sec. 2628.14 OMB control number.

The collection of information requirements contained in this part

have been approved by the Office of Management and Budget under OMB

Control Number 1212-0049.

Issued on the date set forth above pursuant to a resolution of

the Board of Directors authorizing its Chairman to issue this final

rule.

Issued in Washington, DC, this 18th day of December 1995.

Robert B. Reich,

Chairman, Board of Directors, Pension Benefit Guaranty Corporation.

James J. Keightley,

Secretary, Board of Directors, Pension Benefit Guaranty Corporation.

[FR Doc. 95-31053 Filed 12-19-95; 8:45 am]

BILLING CODE 7708-01-P