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Special Financial Assistance by PBGC (rule, 87 FR 40968, July 8, 2022)

Summary

A final rule with request for comment of the Pension Benefit Guaranty Corporation (PBGC), RIN 1212–AB53, printed in the Federal Register of Friday, July 8, 2022 (Vol. 87, No. 130). It states that on July 9, 2021, PBGC issued an interim final rule setting the requirements for special financial assistance (SFA) applications under the American Rescue Plan Act of 2021. With the approval of its board of directors, PBGC changes part 4262 of its regulations in response to public comments, including changes to the methodology to calculate SFA and to the permissible investments for SFA funds. The rule states that SFA is provided in the amounts required for eligible multiemployer plans to pay all benefits due through the plan year ending in 2051.

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“Special Financial Assistance by PBGC (rule, 87 FR 40968, July 8, 2022).” Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/special-financial-assistance-by-pbgc-rule-87-fr-40968-july-8-2022-75d5ec1a0c/, SHA-256 c780a6b663372df79fdd7dff2f5f2bdbfbc73b0e0e6aeb62f3d11d2126b59de1.

Full text

                                             40968                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             PENSION BENEFIT GUARANTY                                 online instructions for submitting                    Plan Act of 2021, ‘‘Special Financial
                                             CORPORATION                                              comments.                                             Assistance Program for Financially
                                                                                                         • Email: reg.comments@pbgc.gov.                    Troubled Multiemployer Plans.’’ 1 This
                                             29 CFR Part 4262                                            • Mail or Hand Delivery: Regulatory                program enhances retirement security
                                                                                                      Affairs Division, Office of the General               for millions of Americans by providing
                                             RIN 1212–AB53                                            Counsel, Pension Benefit Guaranty                     eligible multiemployer defined benefit
                                                                                                      Corporation, 1200 K Street NW,                        pension plans with special financial
                                             Special Financial Assistance by PBGC
                                                                                                      Washington, DC 20005–4026.                            assistance (SFA) in the amounts
                                             AGENCY: Pension Benefit Guaranty                            Commenters are strongly encouraged                 required for the plans to pay all benefits
                                             Corporation.                                             to submit public comments                             due during the period beginning on the
                                             ACTION: Final rule with request for
                                                                                                      electronically. PBGC expects to have                  date of payment of SFA through the
                                             comment.                                                 limited personnel available to process                plan year ending in 2051. In
                                                                                                      public comments that are submitted on                 consultation with, and with the
                                             SUMMARY: On July 9, 2021, PBGC issued                    paper through mail. Until further notice,             approval of, PBGC’s board of directors
                                             an interim final rule setting forth the                  any comments submitted on paper will                  (Board of Directors or Board), PBGC is
                                             requirements for special financial                       be considered to the extent practicable.              making changes to part 4262 of its
                                             assistance applications and related                         All submissions must include the                   regulations in response to public
                                             restrictions and conditions pursuant to                  agency’s name (Pension Benefit                        comments received on the interim final
                                             the American Rescue Plan Act of 2021.                    Guaranty Corporation, or PBGC) and                    rule, including changes to the
                                             PBGC is making changes to its                            title for this rulemaking (Special                    methodology to calculate SFA,
                                             regulation in response to public                         Financial Assistance by PBGC) and the                 permissible investments for SFA funds
                                             comments received on the interim final                   Regulation Identifier Number for this                 (SFA received and any earnings
                                             rule, with an additional opportunity for                 rulemaking (RIN 1212–AB53).                           thereon), the application of conditions
                                             comment solely on the condition                          Comments received will be posted                      on a plan that merges with a plan that
                                             requiring a phased recognition of                        without change to PBGC’s website,                     receives SFA, and the withdrawal
                                             special financial assistance in a plan’s                 www.pbgc.gov, including any personal                  liability conditions that apply to a plan
                                             determination of withdrawal liability.                   information provided. Do not submit                   that receives SFA.2
                                             DATES:
                                                                                                      comments that include any personally                     PBGC’s legal authority for this
                                                Effective date: This final rule is                    identifiable information or confidential              rulemaking comes from section 4262 of
                                             effective on August 8, 2022.                             business information.                                 the Employee Retirement Income
                                                                                                         Copies of comments may also be                     Security Act of 1974 (ERISA) (Special
                                                Applicability dates: This final rule is
                                                                                                      obtained by writing to Disclosure                     Financial Assistance by the
                                             applicable to plans that apply or have
                                                                                                      Division, Office of the General Counsel,              Corporation), which requires PBGC to
                                             applied for special financial assistance.
                                                                                                      Pension Benefit Guaranty Corporation,                 issue regulations or guidance setting
                                                For a plan that received special
                                                                                                      1200 K Street NW, Washington, DC                      forth requirements for SFA applications,
                                             financial assistance under part 4262 in
                                                                                                      20005–4026 or calling 202–229–4040                    permits PBGC to provide for how SFA
                                             effect before August 8, 2022, § 4262.14
                                                                                                      during normal business hours. If you are              and earnings thereon are to be invested,
                                             will not apply unless and until the plan
                                                                                                      deaf, hard of hearing, or have a speech               and permits PBGC, in consultation with
                                             files a supplemented application under
                                                                                                      disability, please dial 7–1–1 to access               the Secretary of the Treasury, to impose
                                             this part. Before the date that the plan
                                                                                                      telecommunications relay services.                    reasonable conditions by regulation or
                                             files a supplemented application under
                                                                                                      FOR FURTHER INFORMATION CONTACT:                      other guidance on an eligible
                                             this part, the rules under § 4262.14 in
                                             effect before August 8, 2022 apply to the                Daniel S. Liebman (liebman.daniel@                    multiemployer plan that receives SFA.
                                             plan.                                                    pbgc.gov; 202–229–6510), Deputy                       PBGC’s legal authority also comes from
                                                For a plan that received special                      General Counsel, Program Law and                      section 4002(b)(3) of ERISA, which
                                             financial assistance under part 4262 in                  Policy Department, Hilary Duke                        authorizes PBGC to issue regulations to
                                             effect before August 8, 2022,                            (duke.hilary@pbgc.gov; 202–229–3839),                 carry out the purposes of title IV of
                                             § 4262.16(g)(2) will not apply unless the                Assistant General Counsel for                         ERISA, and from section 4003(a) of
                                             plan files a supplemented application                    Regulatory Affairs, or Stephanie Cibinic              ERISA, which authorizes PBGC to
                                             under this final rule. If the plan files a               (cibinic.stephanie@pbgc.gov; 202–229–                 conduct investigations and audits.
                                             supplemented application,                                6352), Deputy Assistant General
                                                                                                      Counsel for Regulatory Affairs, Office of             Major Provisions of the Regulatory
                                             § 4262.16(g)(2) applies to the plan in                                                                         Action
                                             determining withdrawal liability for                     the General Counsel, Pension Benefit
                                             withdrawals occurring on or after the                    Guaranty Corporation, 1200 K Street                      Part 4262 sets forth what information
                                             date the plan files the supplemented                     NW, Washington, DC 20005–4026. If                     a plan is required to file to demonstrate
                                             application.                                             you are deaf, hard of hearing, or have a              eligibility for SFA and the amount of
                                                Comment date for withdrawal liability                 speech disability, please dial 7–1–1 to               SFA to be paid by PBGC to the plan.
                                             condition in § 4262.16(g)(2): Comments,                  access telecommunications relay                       The regulation identifies which plans
                                             which should address only the                            services.                                             will be given priority to file applications
                                             withdrawal liability condition in                        SUPPLEMENTARY INFORMATION:
                                                                                                                                                            before March 11, 2023, and provides for
                                             § 4262.16(g)(2), must be received on or                                                                        a processing system to accommodate the
                                                                                                      Executive Summary                                     filing and review of many applications
                                             before August 8, 2022 to be assured of
                                             consideration.                                           Purpose and Authority




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                                                                                                                                                              1 The rule was published in the Federal Register
                                             ADDRESSES: Comments on                                     On July 9, 2021, the Pension Benefit                on July 12, 2021, at 86 FR 36598.
                                             § 4262.16(g)(2) of this final rule may be                Guaranty Corporation (PBGC) issued an                   2 Under section 4002(a) of ERISA, PBGC is

                                             submitted by any of the following                        interim final rule adding to its                      administered in accordance with policies
                                                                                                                                                            established by the Board of Directors, which is
                                             methods:                                                 regulations a new part 4262 to                        made up of the Secretaries of the Department of
                                                • Federal eRulemaking Portal:                         implement the requirements under                      Labor, the Department of the Treasury, and the
                                             https://www.regulations.gov. Follow the                  section 9704 of the American Rescue                   Department of Commerce.



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                                                                    Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                                   40969

                                             in a limited amount of time. This part                   Department of the Treasury (Treasury                      On March 11, 2021, the President signed
                                             also establishes permissible investments                 Department) for a suspension of benefits                  into law the American Rescue Plan
                                             of SFA funds and other restrictions and                  under section 305(e)(9) of ERISA, which                   (ARP) Act of 2021 (Pub. L. 117–2),
                                             conditions on plans that receive SFA.                    requires plans to show that the                           which amended title IV of ERISA to
                                               PBGC is making changes in this final                   proposed suspension would enable                          address the immediate crisis facing
                                             rule that revise part 4262, including                    them to avoid insolvency. Without such                    severely underfunded multiemployer
                                             changes to the SFA measurement date,                     a showing, the Treasury Department                        plans and the solvency of PBGC, and to
                                             the methodology to calculate SFA,                        cannot approve the application for a                      assist plans by providing funds to
                                             permissible investments of SFA funds,                    suspension of benefits. Generally, under                  reinstate suspended benefits.
                                             the application of conditions on a plan                  this process, plans may propose a
                                             that merges with a plan that receives                                                                              American Rescue Plan Act of 2021—
                                                                                                      reduction of benefits to no less than 110
                                             SFA, and the withdrawal liability                                                                                  Special Financial Assistance Program
                                                                                                      percent of PBGC’s guaranteed benefit
                                             conditions that apply to a plan that                                                                               for Financially Troubled Multiemployer
                                                                                                      amount. A plan that has taken all
                                             receives SFA.                                                                                                      Plans
                                                                                                      reasonable measures, including
                                                                                                      applying for a suspension of benefits,                       Section 4262 of ERISA creates a
                                             Background                                                                                                         program to enhance retirement security
                                                                                                      may also request partition assistance
                                             PBGC and the Multiemployer Insurance                     from PBGC (under section 4233 of                          for millions of Americans by providing
                                             Program                                                  ERISA). A partition allows the plan to                    SFA to financially troubled
                                               PBGC administers two insurance                         transfer responsibility for paying                        multiemployer plans. Under current
                                             programs for private-sector defined                      monthly guaranteed benefits for a                         conditions, the SFA program is
                                             benefit pension plans under title IV of                  portion of the plan’s participants and                    expected to assist about 200 financially
                                             ERISA: one for single-employer defined                   beneficiaries to a newly created                          troubled plans. The SFA provided to
                                             benefit pension plans and one for                        successor plan that receives financial                    these plans will forestall their
                                             multiemployer defined benefit pensions                   assistance from PBGC. When a partition                    insolvency for many years into the
                                             plans (multiemployer plans). In general,                 is approved, the original plan has an                     future and includes funds to reinstate
                                             a multiemployer plan is a plan which is                  ongoing obligation to pay and preserve                    suspended monthly benefits going
                                             maintained pursuant to one or more                       benefits for all participants at levels                   forward, and for make-up payments to
                                             collective bargaining agreements                         above PBGC’s guaranteed amounts. All                      restore previously suspended benefits.
                                             involving two or more unrelated                          plans approved for benefit suspensions                    In addition, the SFA program improves
                                             employers. The multiemployer                             under MPRA as of March 11, 2021,                          the financial outlook for PBGC’s
                                             insurance program protects the benefits                  certified—and Treasury confirmed                          multiemployer insurance program.
                                             of approximately 10.9 million workers                    through review of plan applications—                         Section 9704 of ARP amends section
                                             and retirees in approximately 1,400                      that the proposed suspensions (in                         4005 of ERISA to establish an eighth
                                             plans. This final rule deals with                        combination with any partition) would                     fund for SFA from which PBGC will
                                             multiemployer plans.                                     enable the plans to avoid insolvency                      provide SFA to multiemployer plans
                                               The multiemployer insurance                            indefinitely, as set forth in the Treasury                pursuant to section 4262 of ERISA. The
                                             program provides PBGC with tools to                      Department’s implementing regulations.                    eighth fund will be credited with
                                             help plans that are insolvent or                            MPRA also allows critical and                          amounts from time to time as the
                                             approaching insolvency to be able to                     declining plans to request financial                      Secretary of the Treasury, in
                                             pay guaranteed benefits.3 This help is                   assistance from PBGC upon merging                         conjunction with the Director of PBGC,
                                             primarily in the form of financial                       with another multiemployer plan                           determines appropriate, from the
                                             assistance loans under section 4261(a)                   (‘‘facilitated mergers’’ under section                    general fund of the Treasury
                                             of ERISA. Under that provision, when a                   4231(e) of ERISA) if such financial                       Department. Transfers from the general
                                             multiemployer plan becomes insolvent,                    assistance is necessary for the                           fund to the eighth fund cannot occur
                                             PBGC provides periodic financial                         multiemployer plan to become or                           after September 30, 2030.
                                             assistance payments to the insolvent                     remain solvent. Financial assistance to                      Section 4262 of ERISA sets forth the
                                             plan in amounts that, together with                      the merged plan may promote mergers                       provisions for SFA, including which
                                             existing plan assets and any other plan                  with more viable plans and eliminate                      plans are eligible to apply, the cutoff
                                             income, are sufficient to pay guaranteed                 the need for benefit reductions.                          date for applications, rules relating to
                                                                                                         In recent years, Congress considered a                 actuarial assumptions and PBGC’s
                                             benefit amounts to participants and
                                                                                                      range of proposals to address the                         determinations on applications,
                                             beneficiaries. In general terms, a plan is
                                                                                                      funding crisis in the multiemployer                       restrictions on the use of SFA, and that
                                             insolvent if it cannot pay benefits under
                                                                                                      pension system, including proposals to                    certain plans with suspended benefits 5
                                             the plan when due during the current
                                                                                                      expand PBGC’s partition authority, loan                   must reinstate those benefits
                                             plan year.                                               programs, and broader reforms to
                                               The Multiemployer Pension Reform                                                                                 prospectively and provide make-up
                                                                                                      stabilize multiemployer plans and                         payments to restore previously
                                             Act of 2014 (MPRA) created pathways
                                                                                                      extend the solvency of PBGC’s                             suspended benefits. Unlike the financial
                                             under ERISA to enable certain
                                                                                                      multiemployer insurance program.                          assistance provided under section 4261
                                             distressed plans to avoid insolvency.
                                                                                                      Many of the prominent efforts to                          of ERISA, which is in the form of a loan,
                                             Plans that are in critical and declining
                                                                                                      address issues facing the multiemployer                   a plan receiving SFA under section 4262
                                             status 4 may apply to the U.S.
                                                                                                      pension system included ideas to                          has no obligation to repay SFA.
                                               3 Multiemployer plan guaranteed benefits are
                                                                                                      effectively reverse MPRA benefit                            Section 4262 of ERISA requires PBGC
                                                                                                      suspensions and provide for




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                                             primarily nonforfeitable benefits and the maximum                                                                  to prescribe in regulations or other
                                             guarantee is set by law under section 4022A of           reinstatement of the suspended benefits.                  guidance the requirements for SFA
                                             ERISA.
                                               4 Amultiemployer plan is incritical and declining
                                                                                                                                                                applications, including an alternate
                                                                                                      the 14 succeeding planyears (or 19succeeding plan
                                             status if the plansatisfies the criteria for critical    years if theplan has a ratio of inactive participantsto
                                                                                                                                                                application for plans with an approved
                                             statusunder section 305(b)(2) of ERISA and is            active participants thatexceeds 2 to 1 or if the
                                             projectedto become insolvent within the meaningof        funded percentage of theplan is less than 80                5 Plans with suspended benefits pursuant to

                                             section 4245 during the current planyear or any of       percent).                                                 section 305(e)(9) or 4245(a) of ERISA.



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                                             40970                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             partition under section 4233 of ERISA.                   firms, other plan professionals,                      disagree with this condition, PBGC is
                                             In addition, PBGC may prioritize                         participants, members of Congress, and                interested in comments that articulate
                                             applications during the first 2 years after              other individuals. The comments,                      the rationale supporting such
                                             March 11, 2021, prescribe how SFA                        PBGC’s responses to the comments, and                 disagreement. PBGC requests comments
                                             funds are to be invested, and impose                     a summary of changes made to the                      on whether the determination of the
                                             reasonable conditions on plans that                      interim final rule are discussed in the               timeline under the final rule
                                             receive SFA.                                             next section.                                         appropriately balances the interests of
                                                Although PBGC’s rulemakings                                                                                 various stakeholders, or whether a
                                                                                                      Section-by-Section Discussion of Public               shorter (or longer) phase-in period
                                             generally involve coordination and
                                                                                                      Comments                                              might protect the financial security of
                                             consultation with two other agencies
                                             that have jurisdiction over pension                      Overview and Purpose                                  plan participants and beneficiaries
                                             plans (the Treasury Department and the                                                                         without placing an undue burden on
                                                                                                         The final rule amends part 4262,
                                             U.S. Department of Labor (Department                                                                           withdrawing employers. PBGC is also
                                                                                                      including changes from the interim final
                                             of Labor or Department)), section 4262                                                                         interested in comments about a partial
                                                                                                      rule regarding the SFA measurement
                                             of ERISA specifically provides for                                                                             phase-in condition, including how such
                                                                                                      date, the determination of eligibility and
                                             coordination and consultation with the                                                                         a condition might work, and whether a
                                                                                                      the amount ofSFA (including interest
                                             Treasury Department, particularly on                                                                           partial phase-in condition has any
                                                                                                      rate assumptions and the calculation of
                                             SFA applications involving a plan’s                                                                            benefits or drawbacks as compared to
                                                                                                      SFA for plans with an approved MPRA
                                             reinstatement of benefits suspended                                                                            the phase-in condition in this rule.
                                                                                                      benefit suspension as of March 11,
                                             under section 305(e)(9) of ERISA.6 The                                                                         Finally, should there be a different
                                                                                                      2021), the content of an application for              phase-in rule for plans that will receive
                                             statute also provides for consultation                   SFA, the process of applying, PBGC’s
                                             with the Treasury Department with                                                                              a large amount of SFA compared to their
                                                                                                      review of applications,and restrictions               non-SFA assets than for plans that will
                                             respect to a plan that proposes in its                   (including permissible investment of
                                             application to change certain                                                                                  receive a relatively small amount of SFA
                                                                                                      SFA funds) and conditions on plans                    compared to their non-SFA assets (so
                                             assumptions, with respect to a plan that                 receiving SFA. The final rule also makes
                                             files an application under PBGC                                                                                that the SFA account is projected to be
                                                                                                      other clarifying and editorial changes to             exhausted after a relatively short
                                             regulations or guidance prioritizing                     part 4262.
                                             certain applications, and on the                                                                               period)?
                                                                                                         In this document, PBGC is providing
                                             conditions imposed on plans that                         for a 30-day comment period solely on                 Definitions—SFA Measurement Date
                                             receive SFA.7 This final rule is a result                the condition requiring a phased                        The SFA measurement date used in
                                             of that coordination and consultation,                   recognition of SFA in a plan’s                        calculating the amount of SFA under
                                             which will continue during the SFA                       determination of withdrawal liability in              § 4262.4 was defined in § 4262.2 of the
                                             program’s operation as plans apply for                   § 4262.16(g)(2), because it is an area of             interim final rule as the last day of the
                                             SFA.                                                     complexity that may benefit from                      calendar quarter immediately preceding
                                             Interim Final Rule                                       additional public comment. This will                  the date the plan’s application was filed.
                                                                                                      provide an opportunity for additional                 This date was established by the filing
                                                On July 9, 2021, PBGC issued an                       public comment on the condition and
                                             interim final rule on Special Financial                                                                        of the plan’s initial application for SFA.
                                                                                                      will allow PBGC to assess the                           A few commenters raised general
                                             Assistance by PBGC. Before the interim                   effectiveness of this withdrawal liability            concerns about the uncertainty of the
                                             final rule was issued, PBGC held                         condition, consider adjustments or                    plan’s SFA measurement date and
                                             listening sessions with interested parties               changes, and determine whether more                   having to change the SFA measurement
                                             at their request. Representatives of                     clarification is needed regarding the                 date immediately after the end of the
                                             PBGC’s Board of Directors (the                           condition or the mechanics of                         calendar quarter because of PBGC’s
                                             Secretaries of the Department of Labor,                  implementation. To the extent PBGC                    metering system described in § 4262.10.
                                             the Treasury Department, and the                         determines that adjustments or changes                One of the commenters recommended
                                             Department of Commerce) also                             to this withdrawal liability condition                that PBGC consider adjusting the SFA
                                             participated in these listening sessions.                are appropriate and authorized, or that               measurement date to allow plans
                                             Most of the requesters provided letters                  further clarification is needed, PBGC                 intending to file, but unable to file
                                             or agendas outlining their concerns. In                  may revise the condition accordingly.                 during a temporary closure of the filing
                                             addition, other interested parties sent                     Broadly, PBGC is interested in hearing             window, to use the plan’s original
                                             PBGC letters communicating their                         from commenters about whether the                     intended SFA measurement date. A
                                             views. PBGC considered the views and                     condition requiring a phased                          suggestion was made to allow plans to
                                             concerns expressed, which helped to                      recognition of SFA in a plan’s                        submit a notice of intent to file. Another
                                             inform the interim final rule.                           determination of withdrawal liability                 commenter recommended that non-
                                                PBGC provided a 30-day comment                        strikes the correct balance among                     priority group plans be given the option
                                             period 8 for the interim final rule and                  stakeholders, or if a different condition             to freeze the SFA measurement date as
                                             received over 100 comment letters from                   might work better. Additionally, PBGC                 of the earliest date a plan in priority
                                             multiemployer plans and associations                     is interested in hearing from                         group 6 could apply or the end of the
                                             representing multiemployer plans,                        stakeholders about what the expected                  calendar quarter before the date PBGC
                                             contributing employers and associations                  impact of such a condition is likely to               begins to accept applications for non-
                                             representing employers, labor                            be, and whether additional clarification              priority group plans. The commenters
                                             organizations, actuarial consulting firms                or guidance would be useful.                          stated this would save plans the burden




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                                             and practitioners, financial services                       PBGC also requests comments about                  and expense of having to re-do their
                                               6 See section 4262(n) of ERISA.
                                                                                                      whether the phased recognition of SFA,                applications if the applications cannot
                                               7 See sections 4262(m) and 4262(n) of ERISA.
                                                                                                      which reflects projected rather than                  be filed until the following calendar
                                               8 PBGC considered comments received up to 1            actual market earnings and losses,                    quarter.
                                             week after the 30-day comment period as timely           expenses, and benefit payments, strikes                 PBGC understands that some
                                             received during the comment period.                      the correct balance. If commenters                    commenters would like greater certainty


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                                                                    Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                             40971

                                             about when an initial application may                    became law) and has remained                             insolvent, it should be eligible to apply
                                             be filed to establish the plan’s SFA                     insolvent and has not terminated under                   for SFA, arguing that section 4262 of
                                             measurement date. To address timing                      section 4041A of ERISA as of March 11,                   ERISA does not state that any plan
                                             concerns related to preparing a plan’s                   2021.                                                    terminated before 2020 through mass
                                             application, in the final rule, PBGC is                    In its interim final rule, PBGC noted                  withdrawal is not eligible for relief.
                                             changing the definition of the SFA                       that a plan that terminated by mass                      Section 4262(b)(1) of ERISA provides a
                                             measurement date in § 4262.2 from ‘‘the                  withdrawal in a plan year that ended                     list of four types of plans that are
                                             last day of the calendar quarter                         before January 1, 2020, is not eligible for              eligible to apply for SFA, and PBGC
                                             immediately preceding the date the                       SFA under section 4262(b)(1)(A) of                       cannot extend eligibility for SFA
                                             plan’s application was filed’’ to ‘‘the last             ERISA and § 4262.3(a)(1) (plans that are                 through its regulation to a plan that is
                                             day of the third calendar month                          in critical and declining status in any                  not included in that list. As noted
                                             immediately preceding the date the                       plan year beginning in 2020, 2021, or                    above, a plan that is terminated by mass
                                             plan’s initial application for special                   2022). This is because the rules under                   withdrawal in a plan year beginning
                                             financial assistance was filed.’’ For                    section 432 of the Code, for plans in                    before 2020 does not meet the eligibility
                                             example, if the plan’s initial application               endangered, critical, and critical and                   requirements under section
                                             was filed on March 15, 2023, its SFA                     declining status, do not apply to such a                 4262(b)(1)(A) or (C) of ERISA or
                                             measurement date would be December                       plan in any of those plan years.10 The                   § 4262.3(a)(1) or (3).
                                             31, 2022; if the plan’s initial application              interim final rule provided as an                           Section 4262.3(c)(1) of the regulation
                                             was filed on July 1, 2023, its SFA                       example that, if a plan that was in                      provides that aplan that has elected to
                                             measurement date would be April 30,                      critical and declining status in 2019                    be in critical status under section
                                             2023.                                                    terminated by mass withdrawal in that                    305(b)(4) of ERISA, but is not certified
                                                In addition, based on a commenter                     year, the plan would not be eligible for                 to be in critical status under section
                                             suggestion, PBGC is adding a provision                   SFA under § 4262.3(a)(1) because it was                  305(b)(2), is not an eligible
                                             in § 4262.10 to provide a mechanism for                  not in critical and declining status in                  multiemployer plan. In response to a
                                             plans to file a ‘‘lock-in application.’’ If              2020, 2021, or 2022. To provide further                  commenter, PBGC is further clarifying
                                             a plan files a lock-in application, it will              clarification, PBGC notes that for the                   that a plan is an eligible multiemployer
                                             be considered the plan’s initial                         same reason, a plan that terminated by                   plan if it is certified to be in critical
                                             application for SFA, establishing the                    mass withdrawal in a plan year                           status under section 305(b)(2) of ERISA
                                             filing date for a plan’s initial application             beginning before 2020 cannot be eligible                 during the 2020, 2021, or 2022 plan
                                             and the plan’s base data (SFA                            for SFA under section 4262(b)(1)(C) of                   years (and otherwise meets the other
                                             measurement date, census data, non-                      ERISA or under § 4262.3(a)(3) (plans                     criteria for an eligible critical status plan
                                             SFA interest rate assumption, and SFA                    that are in critical status in any plan                  under § 4262.3(a)(3)), regardless of
                                             interest rate assumption). This provision                year beginning in 2020, 2021, or 2022).                  whether the plan made an election
                                             is described in more detail later in the                   Two commenters stated that plans                       under section 305(b)(4) of ERISA to be
                                             preamble under the subheading Lock-in                    terminated by mass withdrawal should                     in critical status in a previous year.
                                             Application.                                                                                                         In addition, a commenter requested
                                                                                                      be eligible to apply for SFA. In
                                                                                                                                                               clarification as to how an election under
                                             Eligible Multiemployer Plans                             particular, one commenter suggested
                                                                                                                                                               section 9701(a) of ARP affects SFA
                                               There are four types of multiemployer                  that if a plan terminated by mass
                                                                                                                                                               eligibility. Section 9701(a) of ARP
                                             plans identified in section 4262(b)(1) of                withdrawal, but is not currently
                                                                                                                                                               permits a multiemployer plan sponsor
                                             ERISA that are eligible to apply for SFA                   10 Section 412(a)(1) of the Code requires a pension
                                                                                                                                                               to make an election relating to the plan’s
                                             under § 4262.3 of PBGC’s regulation.                     plan to satisfy the minimum funding standard             status under section 432(b) of the Code
                                             This list is in section 4262(b)(1)(A)                    applicable to the plan for each plan year. In the case   and section 305(b) of ERISA (section
                                             through (D) of ERISA and consists of:                    of a multiemployer plan, section 412(a)(2)(C)            432 status) for certain plan years. If the
                                               (1) A plan in critical and declining                   provides that participating employers must make          plan sponsor makes the election under
                                                                                                      contributions under the plan for a plan year that,
                                             status (within the meaning of section                    in the aggregate, are sufficient to ensure that the      section 9701(a) of ARP for a plan year,
                                             305(b)(6) of ERISA) in any plan year                     plan does not have an accumulated funding                then, notwithstanding the actuarial
                                             beginning in 2020, 2021, or 2022.                        deficiency under section 431 as of the end of the        certification of the plan’s status for the
                                               (2) A plan with a suspension of                        plan year. Section 412(e)(4) provides that the           plan year, the plan will have the same
                                             benefits approved under section                          minimum funding rules under section 412 apply to
                                                                                                      a multiemployer plan until the last day of the plan      status as it had for the preceding plan
                                             305(e)(9) of ERISA as of the date ARP                    year in which a plan terminates within the meaning       year. IRS Notice 2021–57, 2021–44 IRB
                                             became law (March 11, 2021).                             of section 4041A(a)(2) of ERISA (that is, termination    706, refers to an election under section
                                               (3) A plan certified to be in critical                 by mass withdrawal or a cessation of the obligation      9701(a)(1) of ARP as a ‘‘freeze election,’’
                                             status (within the meaning of section                    of all employers to contribute under the plan).
                                                                                                      Accordingly, the rules of section 431 of the Code
                                                                                                                                                               and a multiemployer plan sponsor may
                                             305(b)(2) of ERISA) that has a modified                  do not apply to such a plan for periods after the        make a freeze election for the first plan
                                             funded percentage of less than 40                        plan year of termination.                                year beginning on or after March 1,
                                             percent and a ratio of active to inactive                  The Internal Revenue Service (IRS) has informed        2020, or the next succeeding plan year.
                                             participants which is less than 2 to 3, in               PBGC that section 432 of the Code, which provides        That guidance also provides that if a
                                             any plan year beginning in 2020, 2021,                   rules for multiemployer plans in endangered status
                                                                                                      or critical status, likewise does not apply to a         freeze election applies for a plan year,
                                             or 2022.                                                 multiemployer plan for periods after the plan year       then the plan has an elected section 432
                                               (4) A plan that became in solvent 9 for                of termination within the meaning of section             status, which may be different than the
                                             purposes of section 418E of the Internal                 4041A(a)(2) of ERISA. This is consistent with            plan’s section 432 status as certified by
                                             Revenue Code (the Code) after                            section 301(c) of ERISA (over which the Secretary
                                                                                                                                                               the plan’s actuary under section




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                                                                                                      of the Treasury has interpretive jurisdiction
                                             December 16, 2014 (the date MPRA                         pursuant to section 101 of Reorganization Plan No.       432(b)(3) of the Code for that plan year.
                                                                                                      4 of 1978 (5 U.S.C. App.)), which provides that part     Accordingly, if a plan is certified to be
                                               9 A multiemployer plan is regarded as insolvent        3 of title I of ERISA, including the minimum             in critical status (within the meaning of
                                             as of the first day of the plan year in which it is      funding rules parallel to sections 412, 431, and 432
                                             projected to have insufficient resources to pay all      of the Code, applies until the last day of the plan
                                                                                                                                                               section 305(b)(2) of ERISA) in any plan
                                             benefits under the plan when due during the plan         year in which the plan terminates within the             year beginning in 2020 through 2022
                                             year.                                                    meaning of section 4041A(a)(2) of ERISA.                 and meets the other criteria for an


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                                             40972                  Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             eligible critical status plan under                      nature of future withdrawal liability                 Summary of Changes Affecting the
                                             § 4262.3(a)(3), the plan would be                        payments, PBGC should consider                        Amount of Special Financial Assistance
                                             eligible to apply for SFA regardless of                  excluding these payments from the                       The calculation of the amount of SFA
                                             whether the plan has made a freeze                       determination of the plan’s eligibility               under section 4262 of ERISA has
                                             election.                                                for SFA. PBGC considered the comment                  multiple interacting and technical
                                                To ensure uniformity for applications                 but is not making the suggested change.               components, including factors that the
                                             and clarify what data to use to satisfy                  The inclusion of withdrawal liability                 statute does not define and leaves to
                                             eligibility requirements for critical                    payments due to be received by the plan               PBGC’s reasonable interpretation.
                                             status plans under section 4262(b)(1)(C)                 is consistent with the meaning of                     Congress’ instruction to PBGC under
                                             of ERISA, § 4262.3(a)(3) and (c)(2) of the               current value of assets under section                 section 4262(c) of ERISA to ‘‘issue
                                             final rule specify the data that is used                 3(26) of ERISA, and the provision, as                 regulations or guidance setting forth
                                             for this purpose on the Form 5500                        drafted, recognizes the uncertain nature              requirements for special financial
                                             Schedule MB to determine the                             of future withdrawal liability payments               assistance applications’’ therefore
                                             ‘‘modified funded percentage,’’ and the                  by providing for an allowance for                     requires PBGC, in coordination with its
                                             data on either the Form 5500 or the                      amounts of withdrawal liability                       Board agencies,15 to apply its expertise
                                             Form 5500 Schedule MB to determine                       considered uncollectible.                             in, and responsibility for, the
                                             the ratio of active to inactive                             As explained earlier in this section of            administration of title IV of ERISA to
                                             participants.                                            the preamble, section 4262(b)(1)(C) of                promulgate regulations and application
                                                Section 4262(b)(2) of ERISA defines                   ERISA requires, as one of the conditions              instructions that comport with the
                                             ‘‘modified funded percentage’’ to mean                   of eligibility, that critical status plans            statutory requirements.
                                             the percentage equal to a fraction the                   have a ratio of active to inactive                      Many commenters argued that PBGC
                                             numerator of which is the current value                  participants that is less than 2 to 3. The            should exercise its discretion to
                                             of plan assets (as defined in section                                                                          interpret various components of the
                                                                                                      statute does not specify what participant
                                             3(26) of ERISA) and the denominator of                                                                         calculation of the amount of SFA
                                                                                                      count to use. To fill in this gap, the
                                             which is current liabilities (as defined                                                                       differently than in the interim final rule.
                                                                                                      interim final rule referred to end-of-year
                                             in section 431(c)(6)(D) of the Code).                                                                          PBGC has considered these comments
                                                The numerator for the plan’s funded                   participant counts on the Form 5500.
                                                                                                      On the 2021 Form 5500, these are the                  and assessed whether any proposed
                                             percentage under § 4262.3(c)(2) is
                                                                                                      number of participants identified on                  changes to the interim final rule would
                                             calculated using the current value of
                                                                                                      line 6a(2) (for total number of active                better achieve the statutory purpose
                                             assets on line 2a of Form 5500 Schedule
                                                                                                      participants) and the sum of lines 6b,                evidenced by the text of the statute,
                                             MB,11 which is also required to be
                                                                                                      6c, and 6e (for inactive participants:                which is discussed later in the
                                             reported on line 1l, column (a) of the
                                                                                                      retired or separated participants                     preamble. Following extensive analysis,
                                             Schedule H,12 and adding to it the
                                                                                                      receiving benefits, other retired or                  including projections of various
                                             current value of withdrawal liability
                                                                                                      separated participants entitled to future             proposed changes on long-term plan
                                             payments due to be received by the plan
                                                                                                      benefits, and deceased participants                   solvency and funded status through
                                             on an accrual basis reflecting a
                                                                                                      whose beneficiaries are receiving or are              2051, as well as implementing the
                                             reasonable allowance for amounts
                                                                                                      entitled to receive benefits). One                    statutory instruction that PBGC consult
                                             considered uncollectible 13 (if not
                                                                                                      commenter suggested that plans be                     with the Treasury Department regarding
                                             already included in the current value of
                                                                                                      permitted to use either the participant               considerations specific to the
                                             net assets reported on line 2a). The
                                                                                                      counts from the Form 5500 or the                      calculation of the amount of SFA for
                                             value calculated for the numerator is
                                                                                                      participant counts reported on the Form               plans with approved suspensions of
                                             consistent with the meaning of current
                                                                                                      5500 Schedule MB, which the                           benefits under section 305(e)(9) of
                                             value of assets under section 3(26) of
                                                                                                      commenter noted may be different for a                ERISA as of March 11, 2021 (MPRA
                                             ERISA.14 The current value of assets
                                                                                                      variety of reasons from the counts                    plans), PBGC has decided to adjust
                                             includes total cash contributions due to
                                                                                                      reported on the Form 5500. PBGC                       some of the interpretive choices set
                                             be received on an accrual basis. One
                                                                                                      considered the comment and decided to                 forth in the interim final rule on which
                                             commenter suggested that the inclusion
                                                                                                      permit plans to use either the                        PBGC received comments. Among the
                                             of withdrawal liability receivables in the
                                                                                                      participant counts from the Form 5500,                adjustments in this final rule are the
                                             asset value may cause some plans to be
                                                                                                      as described above, or the beginning-of-              expected rate of return on SFA assets to
                                             ineligible and that, due to the uncertain
                                                                                                      the-year participant counts on the Form               be used in determining the amount of
                                               11 All line references in this section are to the      5500 Schedule MB. On the Form 5500                    SFA and the calculation of the amount
                                             2021 Form 5500 and schedules.                            Schedule MB, these are the number of                  of SFA for MPRA plans.
                                               12 The 2021 Form 5500 instructions provide that,
                                                                                                      participants identified on line 2b(3)(c)              1. Pay All Benefits Due Through 2051
                                             with certain exceptions, assets reported on line 2a
                                                                                                      (for total number of active participants)
                                             of Form 5500 Schedule MB should be the same as                                                                    Section 4262(j) of ERISA sets certain
                                             reported on line 1l, (column (a)) of the Schedule H.     and the sum of lines 2b(1) and 2b(2) (for             requirements for how much SFA an
                                               13 PBGC notes that Financial Accounting                inactive participants: retired                        eligible plan is to receive. Section
                                             Standards Board (FASB) Accounting Standards              participants and beneficiaries receiving              4262(j)(1) provides that ‘‘[t]he amount of
                                             Codification (ASC) 960, Plan Accounting—Defined          payment and terminated vested
                                             Benefit Pension Plans 960–310–25–3A states: ‘‘A                                                                financial assistance provided to a
                                             multiemployer plan may also have a receivable for        participants).                                        multiemployer plan eligible for
                                             a withdrawing employer’s share of the plan’s                In the final rule, PBGC makes changes              financial assistance under this section
                                             unfunded liability. The plan should record the           to § 4262.3(a)(4) to clarify that an
                                             receivable, net of any allowance for an amount                                                                 shall be such amount required for the
                                                                                                      eligible insolvent plan must have




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                                             deemed uncollectible, when entitlement has been                                                                plan to pay all benefits due during the
                                             determined.’’                                            become insolvent after December 16,                   period beginning on the date of payment
                                               14 The withdrawal liability payments due to be         2014, and remained insolvent and not                  of the special financial assistance
                                             received by the plan are not included in the             terminated as of March 11, 2021. In
                                             actuarial value of assets or the fair market value of                                                          payment . . . and ending on the last day
                                             assets for purposes of sections 431 and 432 of the
                                                                                                      order to have remained insolvent as of
                                             Code and the corresponding sections 304 and 305          March 11, 2021, the plan must have                      15 The Departments of Labor, the Treasury, and

                                             of ERISA.                                                become insolvent before that date.                    Commerce.



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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                                   40973

                                             of the plan year ending in 2051, with no                 amount of SFA needed to meet                          account for the fact that section 4262(l)
                                             reduction in’’ benefits. Section                         projected liabilities through 2051. Using             of ERISA requires plans receiving SFA
                                             4262(j)(2) provides that ‘‘the funding                   an accurate projected rate of return for              to have two separate pools of assets and
                                             projections for purposes of this section                 each pool is critical for determining                 expressly contemplates that they will be
                                             shall be performed on a deterministic                    whether SFA paid now is in the amount                 invested separately—with different
                                             basis.’’                                                 projected to ‘‘pay all benefits due’’                 expected rates of return. PBGC also
                                                Many commenters argued that the                       through the end of 2051, as required by               believes that this approach better
                                             mandatory language of section 4262(j)(1)                 section 4262(j)(1) of ERISA.                          harmonizes sections 4262(e), (j), and (l)
                                             of ERISA, which states that the amount                      In the interim final rule, PBGC                    with each other. The statute must be
                                             of SFA ‘‘shall’’ be such amount                          concluded that the same investment-                   read as a whole, and each section
                                             ‘‘required for the plan to pay all benefits              return assumption should be used to                   construed in a manner that renders
                                             due’’ through the end of 2051, means                     project both pools of assets. In reaching             them compatible, not contradictory.
                                             that if an eligible plan does not receive                this conclusion, PBGC gave substantial
                                             SFA sufficient to project solvency                       weight to section 4262(e)(2) of ERISA                 3. SFA for MPRA Plans
                                             through 2051, taking into account the                    which, as noted in the preamble to the
                                             amount that SFA assets can reasonably                    interim final rule, requires a plan to use               As described earlier in the preamble,
                                             be expected to earn given the statutory                  an interest rate that is based on the rate            the interim final rule provided a method
                                             investment restrictions imposed by                       used in the plan’s most recent                        for eligible multiemployer plans to
                                             section 4262(l), then the statute has not                certification of plan status before                   calculate the amount of SFA based on
                                             been implemented properly. Section                       January 1, 2021, subject to an interest               the ‘‘amount required for the plan to pay
                                             4262(j)(1) clearly requires an eligible                  rate limit. PBGC also gave substantial                all benefits due during the period
                                             plan’s SFA to be the amount necessary                    weight to section 4262(e)(4), which                   beginning on the date of payment of the
                                             for the plan to pay all benefits through                 provides that if a ‘‘prior assumption is              special financial assistance payment
                                             2051. In addition to the use of the term                 unreasonable,’’ a plan may propose to                 . . . and ending on the last day of the
                                             ‘‘shall’’ in section 4262(j)(1) itself, other            change that assumption if it explains                 plan year ending in 2051 . . .’’ under
                                             provisions of section 4262 refer to                      why the assumption ‘‘is no longer                     section 4262(j)(1) of ERISA. The interim
                                             section 4262(j) as ‘‘required’’ or a                     reasonable,’’ except that the plan ‘‘may              final rule provided only one way to
                                             ‘‘requirement.’’ 16                                      not propose a change to the interest rate             calculate the ‘‘amount required’’ for
                                                                                                      otherwise required under this                         both MPRA plans and plans that are not
                                             2. Interest Rates for SFA and Non-SFA
                                                                                                      subsection.’’                                         MPRA plans.17 PBGC received several
                                             Assets                                                      Many commenters raised concerns                    comments that raised issues with how
                                                Plans will necessarily invest—and                     with PBGC’s approach. If the interest                 this calculation would work for MPRA
                                             pay benefits out of—two separate pools                   rate in section 4262(e) of ERISA (which,              plans. The commenters stated that the
                                             of assets between the date of SFA                        for many plans would be close to 5.3                  final rule should treat MPRA plans
                                             payment and the end of 2051. This is                     percent based on pension funding                      differently when calculating the amount
                                             because section 4262(l) of ERISA                         segment rates in December 2021), were                 of SFA.
                                             requires plans to ‘‘segregate’’ SFA assets               used to project the value of both SFA
                                             from ‘‘other plan assets’’ and                           and non-SFA assets, but SFA                              Commenters raised several issues that
                                             circumscribes investment of SFA assets.                  investments are limited to investment                 were unique to MPRA plans. For
                                             For a plan to project accurately how                     grade bonds under section 4262(l)                     example, as part of the MPRA process,
                                             much SFA is ‘‘required’’ for the plan ‘‘to               (which would likely result in an actual               all MPRA plans now eligible for SFA
                                             pay all benefits due’’ through the end of                rate of return close to 2 percent as of               were required statutorily to demonstrate
                                             the plan year ending in 2051, it must                    December 2021, assuming that PBGC                     that a proposed benefit suspension
                                             project the SFA assets, adjusted for                     permitted no investments other than                   would improve their funded status such
                                             earnings, needed to cover each year’s                    investment grade bonds and that current               that the plan would avoid insolvency
                                             benefit payments and expenses until                      yields on such bonds continued through                ‘‘indefinitely.’’ To accept SFA, MPRA
                                             exhausted, and the non-SFA ‘‘other plan                  2051), the SFA amount would be                        plans must permanently reinstate those
                                             assets,’’ adjusted for contributions and                 insufficient to meet the requirement of               suspended benefits. Under the interim
                                             earnings, needed to cover each year’s                    section 4262(j)(1) that it be the ‘‘amount            final rule, however, MPRA plans would
                                             benefit payments and expenses after the                  required for the plan to pay all benefits             not receive more SFA than an amount
                                             SFA assets are exhausted through the                     due’’ through the end of 2051. There is               necessary to avoid insolvency through
                                             end of the SFA coverage period. Thus,                    thus, asserted the commenters, an                     2051. Thus, commenters described
                                             an amount of SFA that accounts for                       inconsistency between these two                       MPRA plan trustees as facing an
                                             existing plan assets under section                       provisions of the statute. Providing a                unenviable choice between retaining the
                                             4262(j), and the segregation and separate                separate investment-return assumption                 existing benefit suspensions (enabling
                                             investment of those assets from SFA                      for SFA assets that reflects the                      the plan to avoid insolvency
                                             assets under section 4262(l), requires                   investment restrictions under section                 indefinitely at the cost of forgoing SFA)
                                             two asset projections: one for a plan’s                  4262(l) of ERISA would avoid this                     or applying for and receiving SFA and
                                             SFA assets, and one for a plan’s non-                    inconsistency. PBGC recognizes that the               reinstating the suspended benefits
                                             SFA assets.                                              interim final rule, without giving more               (potentially jeopardizing the long-term
                                                To make these two projections, plans                  weight to the requirement of section                  financial health of the plan which
                                             must make assumptions about future                       4262(j)(1), did not sufficiently address              MPRA was originally intended to
                                             events—including expected returns on                     this inconsistency. PBGC agrees with




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                                                                                                                                                            promote). Either choice would involve
                                             investments—for each pool of assets to                   commenters that this concern would be                 favoring one set of participants over
                                             calculate that pool’s projected value.                   alleviated by giving more weight to the
                                             Differences in expected investment                       language of section 4262(j) than was                    17 For purposes of determining the amount of SFA
                                             returns for each pool of assets affect the               given in the interim final rule.                      under § 4262.4, the final rule defines a MPRA plan
                                                                                                         PBGC is therefore adjusting the rules              under § 4262.4(a)(3)(ii) as a plan that is eligible for
                                               16 Sections 4262(i)(1) and 4262(n)(1)(B) of ERISA.     set forth in the interim final rule to                SFA under § 4262.3(a)(2).



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                                             40974                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             another.18 A discussion of the                           likelihood of paying all benefits due                 preamble, the final rule allows plans to
                                             comments on determining the amount                       through 2051.                                         use a separate, specified interest rate
                                             of SFA, including for plans that                            As noted in the interim final rule,                assumption for projecting SFA assets
                                             implemented MPRA benefit                                 PBGC shares the concerns expressed by                 that is more closely aligned with the
                                             suspensions, is presented later in this                  some commenters that overly                           rate of return estimated to be achievable
                                             preamble under the subheading                            conservative limits on investment of                  on the permitted investments of SFA
                                             Comments on Amount of Special                            SFA could adversely impact plans’                     assets. PBGC determined that this
                                             Financial Assistance.                                    financial health. Permitting a wider                  change, together with the change in
                                               Section 4262(n) of ERISA requires                      range of investments could help plans                 permitted investments, was necessary to
                                             PBGC to coordinate with the Secretary                    be able to pay all benefits due through               help enable eligible plans to pay all
                                             of Treasury in prescribing the                           2051. But the language of section 4262(l)             benefits due through 2051, while
                                             application process for eligible                         of ERISA also evinces an intent that                  limiting the risk that plans would incur
                                             multiemployer plans, and the amount of                   SFA investments be relatively safe.                   significant losses through the
                                             SFA needed by a plan that has                            Allowing SFA assets to be invested                    investment of SFA dollars. This is
                                             suspended benefits under section                         predominantly in return-seeking assets                supported by PBGC modeling and
                                             305(e)(9) of ERISA that takes into                       risks plans not being able to pay all                 analysis. The changes to the interest rate
                                             account the projected funded status of                   benefits due through 2051 given the                   assumption and to permissible
                                             the plan at the end of 2051, the payment                 potential for severely adverse market                 investments are discussed later in this
                                             of previously suspended benefits, and                    events. It could also put taxpayer-                   preamble under the subheadings
                                             other relevant factors. Following                        funded assistance at significant risk of              Interest Rates for SFA and Non-SFA
                                             consideration of the issues raised by                    loss.                                                 Assets and Permissible Investments,
                                             commenters, and as determined after                         As discussed later in the preamble, in             respectively.
                                             consultation with the Treasury                           consideration of comments received in
                                                                                                      response to PBGC’s specific request,                  Comments on Amount of Special
                                             Department, the final rule provides a                                                                          Financial Assistance
                                             methodology for determining an amount                    PBGC has amended in the final rule the
                                             of SFA for MPRA plans that considers                     investment limitations set forth in the                 Under section 4262(a)(1) of ERISA,
                                             these factors. PBGC’s consultation with                  interim final rule. Given PBGC’s                      PBGC is to provide SFA to an eligible
                                             the Treasury Department and the                          intention that the investment choices                 multiemployer plan upon application.
                                                                                                      provided under the interim final rule                 As discussed earlier in the preamble,
                                             methodology for MPRA plans are
                                                                                                      were always only a starting point for                 under section 4262(j)(1) the amount of
                                             discussed later in the preamble under
                                                                                                      discussion to find a more appropriate                 SFA to be provided is the ‘‘amount
                                             the subheading Calculating the Amount
                                                                                                      balance between certainty and safety of               required for the plan to pay all benefits
                                             of SFA.
                                                                                                      investments on the one hand, and the                  due during the period beginning on the
                                             4. Permissible Investments                               opportunity for plans to have flexibility             date of payment of the special financial
                                               One explicit avenue under the statute                  to decide appropriate overall investment              assistance payment . . . and ending on
                                             that could assist plans in being able to                 policies on the other, PBGC examined                  the last day of the plan year ending in
                                             pay all benefits due through 2051 is                     how to adjust permissible investments                 2051. . . .’’ This is referred to in
                                             through PBGC’s authority under section                   in light of the feedback from                         section 4262(i)(1) as ‘‘the amount
                                                                                                      commenters. In the final rule, PBGC is                necessary as demonstrated by the plan
                                             4262(l) of ERISA to allow SFA assets to
                                                                                                      allowing plans that have received SFA                 sponsor.’’ Section 4262.4(a) of the
                                             be invested in types of investments
                                                                                                      to invest a percentage of SFA assets and              interim final rule implemented section
                                             other than investment grade bonds.
                                                                                                      earnings thereon in certain ‘‘return-                 4262(j)(1) by providing that the amount
                                             Such other investments, for example,
                                                                                                      seeking assets,’’ with the remainder                  of SFA for a plan is the amount (if any),
                                             could have both a higher potential for
                                                                                                      invested in investment grade fixed                    by which the value of all plan
                                             reward and a higher risk than
                                                                                                      income securities to help ensure that                 obligations exceeds the value of all plan
                                             investment grade bonds, though the
                                                                                                      risk of investment losses is mitigated.               resources, determined as of the plan’s
                                             higher risk of these investments may                        While expanding the range of                       SFA measurement date and limited to
                                             raise different concerns about a plan’s                  permissible investments to include a                  the SFA coverage period (the period
                                                                                                      percentage of return-seeking assets eases             ending on the last day of the last plan
                                                18 In July of 2021, the Department of Labor issued
                                                                                                      the path for the plans to be able to pay              year ending in 2051).
                                             the ‘‘Statement on PBGC ‘Special Financial
                                             Assistance’ Interim Final Rule for Eligible              all benefits due through 2051, PBGC’s                   PBGC received numerous comments
                                             Multiemployer Plans.’’ In that Statement, the            modeling showed that it alone is                      on this section of the rule, as noted
                                             Department said that in its ‘‘view, ARP’s inclusion      unlikely to close the gap between the                 earlier in the preamble. Many of the
                                             of plans that suspended benefits under MPRA and          interest rate assumption to calculate the
                                             the prohibition against a future MPRA suspension
                                                                                                                                                            commenters on the interim final rule
                                             for a plan receiving SFA reflects a clear legislative    amount of SFA and the expected rate of                argued that PBGC’s implementation of
                                             objective to allow plan fiduciaries to restore           return on investment of SFA. Thus,                    section 4262(j)(1) was contrary to
                                             benefits that were previously suspended and to           PBGC and its Board examined other                     Congressional intent and the statutory
                                             encourage all eligible plans to apply for SFA            approaches that, in combination with
                                             without raising potential fiduciary liability
                                                                                                                                                            direction for plans to receive SFA in an
                                             concerns about undoing current or precluding             greater flexibility in investments, could             amount required for the plan to pay all
                                             future MPRA suspensions.’’ The Department has            fulfill the expectation of being able to              benefits due through 2051.
                                             advised PBGC that in its view the approach of the        pay all benefits due through 2051 for all               Many commenters disagreed with
                                             final rule removes the risk that receipt of SFA will     eligible plans. Alternatives are                      PBGC that the statute should be
                                             harm the projected status of a MPRA plan at the end
                                                                                                      described in the Regulatory Impact                    interpreted to require all plan assets and




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                                             of 2051 more than not applying for and receiving
                                             SFA. Accordingly, the Department takes the view          Analysis section later in this preamble.              future income (together, a plan’s
                                             that a plan sponsor’s decision to apply for SFA             PBGC and its Board have considered                 resources) to be considered when
                                             would not violate section 404 of ERISA and the           the commenters’ views and the                         determining the amount of SFA.
                                             Department will bring no enforcement action with
                                             respect to such decision. The implementation of
                                                                                                      alternative approaches for assisting                    Several commenters raised the
                                             such decision, however, will be subject to the           plans to be able to pay all benefits due              concern that some critical status plans
                                             fiduciary and other requirements of title I of ERISA.    through 2051. As noted earlier in the                 that meet statutory eligibility


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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                        40975

                                             requirements and that may apply under                    interim final rule would result in these              being made in response to comments
                                             § 4262.3 will not receive SFA or will                    plans receiving less in SFA than the                  PBGC received on assumptions
                                             receive only minimal SFA under                           present value of the benefits the plans               guidance it issued on July 9, 2021—
                                             § 4262.4 of the interim final rule.                      would be required to restore. Some of                 specifically, on the acceptable changes
                                             Commenters said this is because many                     these commenters suggested excluding                  to a plan’s contribution rate assumption.
                                             of these plans will have assets and other                from the calculation of SFA that portion              An example provided in the
                                             resources that equal or exceed the                       of existing assets or future contributions            assumptions guidance showed
                                             present value of benefit obligations                     to fund post-2051 benefit obligations.                contribution rate increases negotiated
                                             through 2051, although insolvency may                    Others suggested providing an amount                  before March 11, 2021, being included
                                             be projected after that date. Some                       of SFA sufficient to pay the reinstated               in the plan’s contribution rate
                                             commenters also noted that the outcome                   benefits beyond the plan year ending in               assumption. Practitioners asked whether
                                             of some eligible plans receiving zero or                 2051. Commenters said the rule should                 the example meant that contribution
                                             minimal SFA is inequitable and will                      allow MPRA plans to receive SFA and                   rate increases negotiated after March 11,
                                             penalize plans whose trustees and                        continue to meet the MPRA solvency                    2021, could be excluded. PBGC is
                                             associated bargaining parties have been                  standard.                                             providing in the final rule that
                                             proactive under collective bargaining                       As explained in the preamble to the                contribution rate increases agreed to on
                                             agreements or rehabilitation plans to                    interim final rule, the heart of the matter           or after July 9, 2021, the date PBGC’s
                                             improve plan finances. Commenters                        is found in the requirement that SFA be               interim final rule and initial
                                             suggested this outcome would be                          ‘‘the amount necessary’’ or ‘‘required for            assumptions guidance were issued, are
                                             contrary to Congress’ intent in including                the plan to pay all benefits due.’’ The               excluded from employer contributions
                                             these plans as eligible for SFA. Without                 statutory text provides not merely that               paid and expected to be paid to the plan
                                             SFA, these critical status plans will                    the amount of SFA be what is                          during the SFA coverage period (and, if
                                             remain ‘‘financially vulnerable’’                        ‘‘required’’ in the abstract to pay                   applicable, any benefit increases that
                                             according to the commenters.                             benefits due through the end of 2051,                 result from the contribution increases
                                               One commenter described SFA as an                      but specifies that SFA be in the amount               are excluded from plan obligations
                                             important tool to address the current                    required ‘‘for the plan’’ to pay all                  under § 4262.4(b)(1) and (c)(1)). PBGC
                                             crisis, but the commenter said that it                   benefits due during this period. PBGC                 does not expect that excluding these
                                             does not address the structural issues                   believes that Congress’ choice to modify              negotiated contribution rate increases
                                             that created the need for SFA. Another                   the term ‘‘required’’ with ‘‘for the plan’’           will result in an increase in the amount
                                             commenter expressed support for the                      indicates that the amount of SFA should               of SFA that a plan would receive
                                             interim final rule’s implementation of                   take into account what resources the                  without the new provision. This is
                                             the amount of SFA. The commenter said                    plan already has to pay benefits through              because, without the provision, PBGC
                                             to exclude current assets and future                     the end of 2051.                                      expects that bargaining parties would
                                             contributions from the calculation of                       Moreover, since the statute requires
                                                                                                                                                            wait until after the plan applies for SFA
                                             SFA would be irresponsible.                              deterministic projections to be made
                                                                                                                                                            to negotiate contribution rate increases
                                               Some commenters suggested there is                     through the end of the last plan year
                                                                                                                                                            (so as to exclude the contribution
                                             support in the statute for alternatives to               ending in 2051, the resources to be
                                                                                                                                                            increases from plan resources in the
                                             § 4262.4(a) of the interim final rule.                   considered must include plan assets and
                                                                                                                                                            calculation of SFA). However, this
                                             Suggested alternatives include                           income. If Congress had contemplated a
                                                                                                                                                            practice would be detrimental to the
                                             disregarding certain plan resources,                     different approach from accepted
                                                                                                                                                            plan’s financial health. PBGC expects
                                             such as future contributions and future                  actuarial practice, Congress would have
                                                                                                                                                            that the new provision will eliminate
                                             accruals, or carving out a portion of                    explicitly excluded the resources that it
                                             current assets or future contributions to                did not intend to be included in the                  this reason for delaying negotiation of
                                             fund benefits after 2051. Others                         determination of the amount of SFA                    contribution rate increases.
                                             suggested that the interim final rule’s                  ‘‘required for the plan.’’ Accordingly,                  Except for excluding the contribution
                                             standard based on a projection of                        the additional funding necessary for the              rate increases described directly above,
                                             sufficiency to the last day of the plan                  plan to pay benefits depends on what                  the final rule does not adopt the
                                             year ending in 2051 should be replaced                   funding—plan assets, contributions,                   suggestions from commenters to exclude
                                             with one consistent with MPRA’s                          investment returns, etc.—the plan                     some or all of a plan’s resources.
                                             standard to avoid insolvency                             already has available to pay those                    However, the final rule changes the
                                             indefinitely. One commenter suggested                    benefits. To the extent that a plan has               methodology for calculating the amount
                                             this can be accomplished by                              other means available to pay benefits, it             of SFA in § 4262.4, by specifying the
                                             interpreting section 4262(j)(1) of ERISA                 does not require or need SFA for that                 interest rate assumption used to project
                                             as providing SFA in an amount required                   purpose.                                              returns on SFA assets and by providing
                                             for a deterministic projection of plan                      According to PBGC’s modeling, not                  a methodology for determining SFA for
                                             assets to be increasing during the last                  accounting for plan’s non-SFA assets                  MPRA plans that are eligible for SFA
                                             plan year ending in 2051. Under one                      would easily enable all eligible plans to             under § 4262.3(a)(2), and changes
                                             suggested approach, the present value of                 pay all benefits due through 2051, as                 § 4262.14 to allow more flexibility in
                                             plan resources needed to increase plan                   SFA would cover the entirety of plans’                permissible investments of SFA. PBGC’s
                                             funding post-2051 would not be                           projected liabilities from ‘‘benefits due’’           modeling shows that these provisions
                                             included in SFA-eligible plan resources.                 over the next 3 decades. However,                     are expected to enable plans to pay
                                             Other commenters suggested                               PBGC’s modeling also shows that this                  benefits due through the plan year
                                             disregarding all plan resources in                       approach could potentially triple the                 ending in 2051 if future experience is in




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                                             determining the amount of SFA.                           cost of the SFA program.                              line with plan assumptions. The
                                               Some MPRA plans commented that                            One exception added to the final rule              provisions are discussed in detail in the
                                             the receipt of SFA in the amount                         in § 4262.4(c)(3) permits plans to                    preamble under the subheadings
                                             provided for under the interim final rule                exclude from plan resources certain                   Calculating the Amount of SFA, Interest
                                             will put their long-term solvency                        contribution rate increases agreed to on              Rates for SFA and Non-SFA Assets, and
                                             projections at risk. They noted that the                 or after July 9, 2021. This change is                 Permissible Investments.


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                                             40976                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             Calculating the Amount of SFA                            and the amount of SFA needed by a                     payments of the reinstated portion of
                                                Section 4262.4(a) of the interim final                plan that has suspended benefits under                benefits through 2051, and any
                                             rule provided that the amount of SFA                     section 305(e)(9) of ERISA. To                        restoration of benefits under 26 CFR
                                             for a plan is the amount (if any), subject               determine the amount of SFA under                     1.432(e)(9)–1(e)(3)). These additional
                                             to adjustment for the date of payment as                 § 4262.4, the final rule defines a MPRA               SFA calculations in (2) and (3), set forth
                                             described in § 4262.12, by which the                     plan under § 4262.4(a)(3) as a plan that              in the final rule, accord with
                                             value of all plan obligations exceeds the                is eligible for SFA under § 4262.3(a)(2)              requirements and considerations that
                                             value of all plan resources, determined                  (a plan with an approved MPRA benefit                 are unique to MPRA plans.
                                                                                                      suspension as of March 11, 2021). Thus,                  Under the second calculation, the
                                             as of the plan’s SFA measurement date
                                                                                                      a plan that is eligible for SFA under                 amount of SFA is the lowest amount
                                             and limited to the SFA coverage period
                                                                                                      § 4262.3(a)(1), (3), or (4) and has                   necessary for actuarial projections to
                                             (the period ending on the last day of the
                                                                                                      implemented a suspension of benefits                  show the plan’s assets are increasing as
                                             last plan year ending in 2051). Under
                                                                                                      that has been approved under section                  of the last day of the plan year ending
                                             the interim final rule, the value of plan
                                                                                                      305(e)(9) of ERISA after March 11, 2021,              in 2051. In calculating the amount of
                                             obligations was the sum of the present
                                                                                                      is not eligible for the amount of SFA                 SFA for plans that are not MPRA plans,
                                             value of specified benefit payments and                                                                        the statute requires that the amount of
                                                                                                      determined under § 4262.4(a)(2) for a
                                             administrative expenses. The value of                                                                          SFA ‘‘shall be such amount required for
                                                                                                      MPRA plan.
                                             plan resources was the total of the fair                                                                       the plan to pay all benefits’’ due through
                                             market value of assets on the SFA                        1. Calculation of SFA for MPRA Plans                  the end of the coverage period.19 The
                                             measurement date and the present value                      Following consideration of the issues              statutory text in section 4262(n)(1)(B) of
                                             of future contributions, withdrawal                      raised by commenters described earlier                ERISA, which applies specifically and
                                             liability payments, and other payments                   in the preamble and of the                            only to MPRA plans, adds a further
                                             expected to be made to the plan                          harmonization of the statutory text and               consideration—the plan’s ‘‘projected
                                             (excluding the amount of financial                       structure, and after consultation with                funded status.’’ The final rule draws
                                             assistance under section 4261 of ERISA                   the Treasury Department regarding the                 upon the demonstrations of ‘‘projected
                                             and the amount of SFA to be received                     administration of the MPRA program,                   funded status’’ that current MPRA plans
                                             by the plan) during the SFA coverage                     this final rule provides a different                  made as part of the MPRA process,
                                             period.                                                  methodology for the calculation of SFA                which distinguishes them from other
                                                Two commenters stated that the                        for MPRA plans than was provided in                   SFA-eligible plans. As discussed earlier,
                                             present value approach to determine the                  the interim final rule. Section                       all SFA-eligible MPRA plans
                                             amount of SFA in the interim final rule                  4262(n)(1)(B) of ERISA requires PBGC to               demonstrated to the Treasury
                                             does not properly take into account the                  consult with the Treasury Department                  Department that their proposed
                                             timing of cash flows. The commenters                     regarding the amount of SFA needed for                suspensions of benefits under MPRA
                                             were concerned that under the present                    a MPRA plan based on the projected                    would be sufficient for the plan to avoid
                                             value approach, plans with positive                      funded status of the plan at the end of               insolvency indefinitely. Thus, the
                                             cash flow toward the end of the                          2051, the payment of previously                       methodology under the final rule
                                             projection period could receive an                       suspended benefits, and other relevant                provides the amount of SFA projected to
                                             amount of SFA that results in a                          factors. These factors are distinct from              be necessary to ensure that a MPRA
                                             projected plan asset value below zero                    the generally applicable provision in                 plan’s projected funded status at the end
                                             before the end of the SFA coverage                       section 4262(j)(1) of ERISA and reflect               of the plan year ending in 2051
                                             period. However, the commenters                          that Congress sought to ensure that                   continues to correspond to avoiding
                                             acknowledged that plans eligible for                     PBGC accounts for MPRA plans’ unique                  insolvency indefinitely, which the plan
                                             SFA are not expected to have a positive                  circumstances.                                        demonstrated as a requirement of
                                             cash flow during the projection period.                     As described earlier in the preamble,              suspending benefits under MPRA. In
                                             In addition, as described in detail in                   under the interim final rule, MPRA                    particular, MPRA plans will be able to
                                             other sections of the preamble, PBGC                     plans faced the predicament where                     accept SFA without harming their
                                             received many comments related to the                    either accepting or not accepting SFA                 projected funded status at the end of the
                                             interest rate assumption a plan was                      could raise fiduciary concerns. In                    2051 plan year.
                                             required to use under the interim final                  deciding whether to apply for and                        PBGC has consulted with the
                                             rule to calculate the amount of SFA in                   accept SFA, MPRA plans must consider                  Treasury Department as required by
                                             the plan’s application. To address these                 not only the positive impact of                       section 4262(n)(1)(B) of ERISA. The
                                             comments and to meet the statutory                       reinstated benefits on participants and               final rule aligns with the standard for
                                             requirements of section 4262(j) of                       beneficiaries currently receiving                     avoiding insolvency indefinitely in the
                                             ERISA, in the final rule, PBGC is                        benefits, particularly current retirees               Treasury Department’s final regulations
                                             changing the methodology that a plan                     receiving benefits, but also consider                 on the suspension of benefits under
                                             must use to determine the amount of                      whether the plan may put the future                   MPRA. This requirement generally is
                                             SFA from a present value approach to                     benefits of active participants at risk if            satisfied under the Treasury
                                             a projection approach that ensures that                  it cannot project to avoid insolvency                 Department’s MPRA regulations if the
                                             plan assets cannot go below zero before                  indefinitely.                                         value of plan assets is projected to
                                             the end of the SFA coverage period.                         Under the final rule, a MPRA plan can              increase at the end of the relevant
                                                In addition, the final rule, in                       apply for the greatest of: (1) the amount             measurement period.20 This approach
                                             § 4262.4(a)(1) and (2), prescribes                       of SFA calculated for a plan that is not              in the final rule, based on the Treasury
                                             methodologies to determine SFA for                       a MPRA plan; (2) the lowest amount of




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                                                                                                                                                            Department’s MPRA regulations, takes
                                             plans that are not MPRA plans and for                    SFA that is sufficient to ensure that the             into account Congress’ direction in
                                             plans that are MPRA plans. Section                       plan will project rising assets at the end            section 4262(n)(1)(B) of ERISA that
                                             4262(n) of ERISA requires PBGC to                        of the 2051 plan year; and (3) an amount              PBGC consult with the Treasury
                                             coordinate with the Secretary of                         of SFA equal to the present value of
                                             Treasury in prescribing the application                  reinstated benefits (accounting for both                19 29 U.S.C. 1432(j)(1).

                                             process for eligible multiemployer plans                 make-up payments needed, as well as                     20 26 CFR 1.432(e)(9)–1(d)(5)(ii).




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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                           40977

                                             Department regarding the amount of                        period, projected SFA assets and                      commenter recommended extending the
                                             SFA needed ‘‘based on the projected                       projected non-SFA assets are both                     270 days to 1 year to enable these plans
                                             funded status of the plan as of the last                  greater than or equal to zero.                        to apply without having to wait until
                                             day of the plan year ending in 2051.’’                       The projected SFA assets for a plan                the current valuation is completed.
                                                Under the third calculation, the                       are determined by projecting SFA                      PBGC considered this comment and has
                                             amount of SFA is the amount equal to                      forward annually until fully exhausted,               concluded that a simpler rule will
                                             the present value of reinstated benefits,                 using the annual cash flows specified in              provide for data that are adequately up
                                             including make-up payments and the                        § 4262.4(b) of the final rule, including              to date. Under § 4262.4(d), as revised by
                                             reinstated portion of future benefits                     benefits and administrative expenses                  the final rule, projections must be based
                                             through 2051. Section 4262(n)(1)(B) of                    paid and expected to be paid by the                   on participant census data used to
                                             ERISA requires PBGC to consult with                       plan during the SFA coverage period                   prepare the plan’s actuarial valuation
                                             the Treasury Department to consider the                   (excluding benefit increases resulting                report for the plan year that includes the
                                             ‘‘projected funded status’’ of MPRA                       from certain contribution increases and               plan’s SFA measurement date, or, if
                                             plans and ‘‘any other relevant factors’’                  excluding the amount owed to PBGC                     there is no such report for that plan
                                             and that ‘‘the amount of assistance . . .                 under section 4261 of ERISA), and                     year, for the preceding plan year.
                                             is sufficient to pay benefits as required                 investment returns expected to be                        If a plan experiences a significant
                                             in subsection (j)(1).’’ The determination                 earned on the SFA assets (calculated                  change in plan experience between the
                                             of the amount of SFA under section                        using the SFA interest rate described in              date of the plan’s participant census
                                             4262(j)(1) of ERISA must take into                        new § 4262.4(e)(2)).                                  data used to prepare the SFA
                                             account ‘‘the reinstatement of benefits                      The projected non-SFA assets for a                 projections and the plan’s SFA filing
                                             required under subsection (k).’’ The                      plan are determined by projecting the                 date, PBGC’s assumptions guidance
                                             ‘‘benefits required under subsection (k)’’                fair market value of plan assets on the               (issued on PBGC’s website at
                                             include both make-up payments to                          SFA measurement date forward                          www.pbgc.gov/guidance) provides
                                             account for previously suspended past                     annually, using the annual cash flows                 guidelines on how to reflect that
                                             benefits, i.e., those benefits described in               specified in § 4262.4(c) of the final rule,           significant change. Plans may, but are
                                             section 4262(k)(2), and the reinstated                    including: the benefits and                           not required to, use the guidelines if
                                             portion of future payments effective as                   administrative expenses paid and                      they are reasonable for the plan.
                                             of the month SFA is paid to the plan,                     expected to be paid by the plan during
                                                                                                       the SFA coverage period (excluding                    Interest Rates for SFA and Non-SFA
                                             i.e., those benefits described in section
                                                                                                       benefit increases resulting from certain              Assets
                                             4262(k)(1). Thus, the statute requires
                                             MPRA plans that receive SFA to                            contribution increases and excluding                     As discussed earlier in the preamble,
                                             reinstate benefits and requires the                       the amount owed to PBGC under section                 PBGC interprets the requirement in
                                             amount of SFA to take into account the                    4261 of ERISA) after the projected SFA                section 4262(j)(1) of ERISA that SFA be
                                             ‘‘reinstatement of benefits’’ by MPRA                     assets are fully exhausted; employer                  provided in the ‘‘amount required for
                                             plans. This present value approach does                   contributions (excluding certain                      the plan to pay all benefits due’’ through
                                             that by providing MPRA plans an                           contribution rate increases), withdrawal              the end of 2051 to mean the amount
                                             amount of SFA that is sufficient to pay                   liability payments reflecting a                       required in addition to the plan’s non-
                                             reinstated benefits. The ‘‘amount of                      reasonable allowance for amounts                      SFA assets. This means that plans will
                                             assistance’’ is sufficient only if a MPRA                 considered uncollectible, and other                   pay benefits from two separate pools of
                                             plan takes into account the                               payments expected to be made to the                   assets which, under the statute, must be
                                             reinstatement of suspended benefits                       plan (excluding the amount of financial               segregated and invested separately.
                                             under both section 4262(k)(1) and (k)(2)                  assistance under section 4261 of ERISA                Therefore, to calculate the amount of
                                             of ERISA. The present value approach is                   and SFA) during the SFA coverage                      SFA ‘‘necessary for the plan to pay all
                                             consistent with Congress’ direction that                  period; and investment returns expected               benefits due’’ through the end of 2051,
                                             PBGC should consult with the Treasury                     to be earned on the non-SFA assets                    plans must perform separate
                                             Department regarding the amount of                        (calculated using the non-SFA interest                calculations to project the value of each
                                             SFA needed ‘‘to ensure the amount of                      rate described in new § 4262.4(e)(1)).                pool of assets, each of which requires
                                             assistance is sufficient . . . to pay                        Under § 4262.4, the deterministic                  the use of an interest rate assumption to
                                             benefits as required in subsection                        projections must be based on recent                   reflect expected returns on that pool of
                                             (j)(1).’’ 21                                              participant census data. Section                      assets.
                                                Following PBGC’s consultation with                     4262.4(d) of the interim final rule                      Section 4262(e)(2)(A) of ERISA
                                             the Treasury Department, this final rule                  provided that participant census data                 provides an interest rate that plans must
                                             provides a MPRA plan the amount of                        must be as of the first day of the plan               use as part of the determination of the
                                             SFA that is the greatest of these three                   year in which the plan’s initial                      amount of SFA under section 4262(j)(1).
                                             calculations, which take into account                     application is filed, or, if the date on              This rate is based on the rate used in the
                                             the enumerated considerations the                         which the plan’s initial application is               plan’s most recently completed
                                             statute sets forth in section                             filed is less than 270 days after the                 certification of plan status before
                                             4262(n)(1)(B).                                            beginning of the current plan year and                January 1, 2021, subject to an interest
                                                                                                       the actuarial valuation for the current               rate limit. The interest rate limit
                                             2. Calculation of SFA for a Plan That Is                  plan year is not complete, the                        specified in section 4262(e)(3) is the rate
                                             Not a MPRA Plan                                           projections may instead be based on the               that is 200 basis points higher than the
                                                The amount of SFA for a plan that is                   participant census data as of the first               rate specified in section 303(h)(2)(C)(iii)
                                             a not a MPRA plan is calculated under                     day of the plan year preceding the year               of ERISA (disregarding modifications




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                                             § 4262.4(a)(1) of the final rule as the                   in which the plan’s initial application is            made under clause (iv) of such section)
                                             lowest whole dollar amount (not less                      filed. PBGC received one comment                      ‘‘for the month in which the plan’s
                                             than $0) for which, as of the last day of                 stating that some plans may be unable                 application for SFA is filed or the 3
                                             each plan year during the SFA coverage                    to complete the actuarial valuation                   preceding months.’’ This provision
                                                                                                       report within 270 days due to reporting               places a ‘‘cap’’ on the interest rate,
                                               21 Section 4262(n)(1)(B) of ERISA.                      delays and plan complexity. The                       which is any permissible rate for a


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                                             40978                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             month during the 4-month period                          and non-SFA assets, given their                       suggested that PBGC should provide a
                                             ending with the month in which the                       different expected rates of return, and               rate equal to the IRS’ third segment rate,
                                             plan’s initial application was filed.                    that allowing plans to apply a different              without adding the 200 basis points.
                                                The interim final rule provided that a                reasonable rate to SFA assets would be                One commenter requested allowing
                                             plan must use this interest rate as an                   a permissible exercise of PBGC’s                      plans to submit two calculations, with
                                             assumption for the expected rate of                      discretion that would better achieve the              one calculation based on the interest
                                             return for both the SFA and the non-                     statute’s requirements.                               rate assumption in the interim final rule
                                             SFA assets. Under § 4262.4(e)(1) of the                     In contrast, a few commenters stated               and a second calculation using interest
                                             interim final rule, the ‘‘assumed interest               that the interest rate set forth in section           rate assumptions that would more
                                             rate’’ was the interest rate that is the                 4262(e) of ERISA and the investment                   reasonably project actual returns for
                                             lesser of the rate used by the plan for                  restrictions in section 4262(l) are plain             SFA and non-SFA assets. PBGC would
                                             funding standard account projections in                  directives of the statute. These                      then provide the plan an amount of SFA
                                             the plan’s most recently completed                       commenters instead asked PBGC to                      to make up any discrepancy between
                                             certification of plan status before                      reinterpret section 4262(j)(1) to change              the two calculations.
                                             January 1, 2021, or the rate that is 200                 the determination of the amount of SFA                   In the interim final rule, PBGC
                                             basis points higher than the rate                        by, for example, disregarding certain                 explained that to determine eligibility
                                             specified in section 303(h)(2)(C)(iii) of                categories of plan resources (or all plan             for SFA, for certifications of plan status
                                             ERISA (disregarding modifications                        resources) in determining the amount of               completed after December 31, 2020,
                                             made under clause (iv) of such section)                  SFA required by a plan.                               section 4262(e)(1) of ERISA requires a
                                             for any month selected by the plan in                       Other commenters provided a number                 plan to use assumptions from its most
                                             the 4-month period ending with the                       of suggestions regarding what interest                recently completed certification of plan
                                             month in which the plan’s application                    rate assumptions plans should be                      status before January 1, 2021, unless
                                             was filed (or the month in which the                     permitted to use for SFA and non-SFA                  such assumptions (excluding the plan’s
                                             initial application was filed if there was               assets. The most common suggestion                    interest rate) are unreasonable. To
                                             more than one filing date).                              was that the interest rate required under             determine the amount of SFA, the
                                                Many commenters discussed the                         section 4262(e) of ERISA should apply                 interim final rule noted that section
                                             difference between the interest rate                     only to non-SFA assets and that PBGC                  4262(e)(2) provides that a plan must
                                             assumption used to calculate SFA under                   should allow a separate rate to apply to              ‘‘use the interest rate used by the plan
                                             § 4262.4(e)(1) of the interim final rule,                SFA assets. Many commenters                           in its most recently completed
                                             and the expected lower return on SFA                     contended that the statute did not                    certification of plan status before
                                             assets invested in permissible                           specify an interest rate for SFA assets,              January 1, 2021, provided that such
                                             investments under § 4262.14. These                       providing several arguments in support                interest rate may not exceed the interest
                                             commenters argued that the approach of                   of these contentions. Some pointed out                rate limit.’’ Under section 4262(e)(4), if
                                             applying a single interest rate to each                  that although section 4262(e) requires                a plan determines that use of one or
                                             pool of plan assets would be at odds                     plans to use the rate identified in that              more prior assumptions is unreasonable,
                                             with the statutory language in section                   section in calculating the amount of                  the plan may propose to change such
                                             4262(j) of ERISA that the amount of SFA                  SFA, the statute does not specify how it              assumption. Section 4262(e)(4) also
                                             ‘‘shall be such amount required for the                  is to be used, nor require that such rate             provides that, notwithstanding this
                                             plan to pay all benefits due during the                  be used for all purposes. Commenters                  language, plans cannot propose a
                                             period beginning on the date of payment                  also argued that using the rate under                 change to the interest assumption. In the
                                             of [SFA] and ending on the last day of                   section 4262(e) to project returns on                 interim final rule, PBGC interpreted
                                             the plan year ending in 2051’’ (emphasis                 SFA assets would not make sense given                 these subsections of 4262(e), read
                                             added). As noted earlier, commenters                     that section 4262(l) provides that SFA                together, to mean that plans should use
                                             argued that, under the interim final rule                assets will be invested separately and                the section 4262(e) interest rate to
                                             approach, many, if not most, SFA-                        likely at lower rates of return than non-             determine the amount of SFA, without
                                             eligible plans would not receive the                     SFA assets, and because section                       a separate interest rate assumption for
                                             SFA amount ‘‘required’’ to enable the                    4262(j)(1) cannot be satisfied without                projecting SFA assets. In interpreting
                                             plans to pay benefits through the 2051                   SFA assets being projected—for most                   section 4262(e), PBGC, in the interim
                                             plan year. These commenters suggested                    plans—using an investment-return                      final rule, stated that it does not have
                                             that an interest rate assumption required                assumption lower than the interest rate               authority to provide a different rate or
                                             to be used to calculate the amount of                    in section 4262(e). Thus, many                        bifurcate the statutorily mandated
                                             SFA under section 4262(e) and the                        commenters argued that PBGC should                    interest rate.
                                             expected rate of return on permissible                   allow plans to use a different interest                  After further review of the statute,
                                             investments under section 4262(l),                       rate for SFA assets so that plans will                PBGC observes that section 4262(e) of
                                             which were limited in the interim final                  receive sufficient SFA to pay full                    ERISA is general in its language
                                             rule primarily to investment grade                       benefits through 2051, as required by                 regarding the determination of the
                                             bonds, would make it impossible for                      section 4262(j)(1). These commenters                  amount of SFA and does not speak
                                             plans to receive the amount of SFA                       argued that PBGC has the authority and                directly to the precise question of the
                                             required to pay benefits through 2051.                   the mandate to harmonize the various                  use of an interest rate to project returns
                                             Some commenters illustrated this point                   provisions of section 4262 in this                    on SFA assets. Thus, PBGC has, after
                                             by noting that their modeling showed                     manner.                                               this further review of the statute,
                                             that their plans would run out of money                     Some commenters further argued that,               additional consultation with its Board
                                             before 2051, a conclusion that PBGC has                  because the 2020 certifications of plan               agencies, consideration of comments,




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                                             confirmed through its own additional,                    status did not include an interest rate               and extensive actuarial modeling,
                                             more detailed modeling performed since                   assumption for projecting investment                  determined that an alternative
                                             issuance of the interim final rule.                      returns on SFA assets, the interest rate              interpretation of section 4262(e) that
                                             Commenters argued that plans therefore                   should be a newly established                         addresses the limitations imposed by
                                             should not be required to use the rate                   assumption and reflect expected returns               the statute and PBGC on permissible
                                             in section 4262(e) to project both SFA                   on SFA assets. A few other commenters                 investments, is reasonable and more


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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                                      40979

                                             likely to result in the SFA an eligible                  the statute’s instruction that plans                     plan’s ‘‘non-SFA interest rate.’’ This rate
                                             plan receives being sufficient for the                   ‘‘shall’’ use that rate in determining the               replaces the ‘‘assumed interest rate’’
                                             plan to pay full benefits through 2051,                  amount of SFA.22                                         under the interim final rule. The
                                             as provided under section 4262(j)(1) of                     However, after further statutory                      ‘‘assumed interest rate’’ was defined as
                                             ERISA, than the interpretation adopted                   analysis and consideration of                            the interest rate that is the lesser of the
                                             in the interim final rule. This result                   comments, PBGC recognizes that the                       rate used by the plan for funding
                                             would not be possible solely by the                      statute does not specify the pool of                     standard account projections in the
                                             increased flexibility in the investment of               assets for which that rate must be used                  plan’s most recently completed
                                             SFA assets under revised § 4262.14.                      as the assumed rate of return. In light of               certification of plan status before
                                             Therefore, after considering section                     this statutory silence, PBGC is                          January 1, 2021, or the interest rate
                                             4262(e) together with sections 4262(j)(1)                exercising discretion to make a                          ‘‘cap’’ selected by the plan in the 4-
                                             and 4262(l) of ERISA, and in order to                    reasonable choice, consistent with                       month period ending with the month in
                                             harmonize these provisions of the                        section 4262(j)(1), about the pool of                    which the plan’s application was filed
                                             statute more effectively than in the                     assets for which the interest rate                       (or the month in which the initial
                                             interim final rule, PBGC is providing for                assumption in section 4262(e)(2) shall                   application was filed if there was more
                                             two interest rate assumptions in the                     be used. As discussed earlier in the                     than one filing date). PBGC recognizes
                                             final rule.                                              preamble, PBGC has interpreted the                       that it is always to a plan’s advantage to
                                                PBGC has considered, but does not                     requirement in section 4262(j) that SFA                  use the rate for the month in which the
                                             agree with, comments that argued that                    shall be the amount ‘‘required for the                   rate is lowest. For simplicity, therefore,
                                             PBGC has discretion to permit plans to                   plan’’ to pay all benefits due through the               in the final rule PBGC is revising
                                             not use in any manner the interest rate                  end of the plan year 2051 to mean that                   § 4262.4(e)(1)(ii) by specifying that the
                                             identified in section 4262(e) of ERISA                   plans must consider existing assets in                   non-SFA interest rate ‘‘cap’’ is the
                                             when calculating the amount of SFA.                      calculation of the SFA amount. Plans                     interest rate that is 200 basis points
                                             The text of section 4262(e)(2) states that               receiving SFA will therefore pay these                   higher than the rate specified in section
                                             ‘‘[i]n determining the amount of special                 benefits from two pools of assets: SFA                   303(h)(2)(C)(iii) of ERISA (disregarding
                                             financial assistance in its application,                 assets and non-SFA assets. Section                       modifications made under clause (iv) of
                                             an eligible multiemployer plan shall use                 4262(l) expressly contemplates that the                  such section) for the month in which
                                             the interest rate used by the plan in its                SFA assets may have a different                          that rate is the lowest among the 4
                                             most recently completed certification of                 expected rate of return than non-SFA                     calendar months ending with the month
                                             plan status before January 1, 2021,                      assets. In addition, as many commenters                  in which the plan’s initial application
                                             provided that such interest rate may not                 noted, a mismatch between the                            for special financial assistance is filed,
                                             exceed the interest rate limit’’ (emphasis               investment restrictions in section                       taking into account only rates that have
                                             added). Because the statute speaks                       4262(l) and the interest rate identified in              been issued by the Internal Revenue
                                             directly to whether plans must use this                  section 4262(e)(2) also supports the                     Service as of the day that is the day
                                             rate, PBGC does not have discretion to                   reasonableness of allowing plans to                      before the date the plan’s initial
                                             allow plans not to use the interest rate                 apply a different and more realistic rate                application is filed.
                                             in section 4262(e)(2) at all. Although                   to SFA assets, including to meet the
                                             plans may be able to forgo using other                   requirements of section 4262(j)(1).                         The second interest rate, defined in
                                             assumptions from their most recently                     Given the investment restrictions under                  § 4262.4(e)(2) of the final rule, is the
                                             completed certification of plan status                   section 4262(l), if the section 4262(e)(2)               plan’s ‘‘SFA interest rate.’’ The SFA
                                             before January 1, 2021, if they                          interest rate assumption were required                   interest rate is the lesser of the rate used
                                             demonstrate to PBGC that those                           to be used in projecting SFA assets,                     by the plan for funding standard
                                             assumptions ‘‘are no longer reasonable,’’                PBGC would not be providing the                          account projections in the plan’s most
                                             section 4262(e)(4) makes clear that plans                amount of SFA reasonably projected to                    recently completed certification of plan
                                             cannot propose to change the                             be ‘‘required for the plan to pay all                    status before January 1, 2021, and an
                                             requirement to use the interest rate in                  benefits due’’ through the plan year                     interest rate cap that is lower than the
                                             section 4262(e)(2). This final rule                      ending in 2051.                                          non-SFA interest rate cap. This lower
                                             therefore maintains the requirement that                    Requiring plans to use the section                    cap reflects the restrictions on
                                             plans use the section 4262(e) rate when                  4262(e) rate for projecting the value of                 investment of SFA funds and the
                                             calculating the amount of SFA. Under                     non-SFA assets, while providing for a                    investment returns plans can reasonably
                                             the final rule, plans must use this rate                 different rate for projecting the value of               expect to earn on SFA funds.23 The SFA
                                             as the assumed rate of return on non-                    SFA assets, is a reasonable
                                                                                                                                                                 23 PBGC determined that the average of the first
                                             SFA plan assets.                                         interpretation of the statute that
                                                PBGC has considered arguments from                                                                             and second segment rates specified in sections
                                                                                                      harmonizes sections 4262(e), (j), and (l).               303(h)(2)(C)(i) and (ii) of ERISA (disregarding
                                             commenters that the statute does not                        Accordingly, to calculate the amount                  modifications made under clause (iv) of such
                                             expressly speak to whether the section                   of SFA for a plan under § 4262.4, the                    section) is likely to reasonably represent the yield
                                             4262(e) rate must also be used as the                    plan must use two interest rate                          and therefore the expected return at any point in
                                             assumed rate of return on SFA assets,                    assumptions: (1) the plan’s non-SFA                      time on the portion of the SFA required to be
                                                                                                                                                               invested in investment grade fixed income. As
                                             which did not exist at the time of a                     interest rate used for calculating                       discussed later in the preamble under the
                                             plan’s most recent certification of plan                 investment returns expected to be                        subheading Permissible Investments, up to 33
                                             status before January 1, 2021, and which                 earned on the plan’s non-SFA assets,                     percent of SFA may be invested in return-seeking
                                             will be invested separately, and under                   and (2) the plan’s SFA interest rate used                assets and the expected return on SFA assets is the
                                                                                                                                                               weighted average of the expected returns for the
                                             different statutory restrictions, from




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                                                                                                      for calculating the investment return                    component parts. Using the interest rate cap
                                             non-SFA assets. As explained earlier in                  expected to be earned on the plan’s SFA                  applicable to plan assets that are not subject to an
                                             the preamble, the final rule maintains                   assets.                                                  investment limitation (200 basis points above the
                                             that at least one of the components of                      The first interest rate, defined in                   third segment rate) as a cap for return-seeking assets
                                                                                                                                                               and an allocation of 33 percent of SFA to those
                                             this overall calculation must be                         § 4262.4(e)(1) of the final rule, is the                 assets, the cap on the SFA interest rate—the
                                             projected using the rate specified in                                                                             weighted average of the caps for the component
                                             section 4262(e)(2) of ERISA because of                        22 See section 4262(e)(2) of ERISA.                                                             Continued




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                                             40980                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             interest rate cap is the interest rate that              SFA a plan (or all plans in the case of                 designed to ensure that plans do not
                                             is 67 basis points higher than the                       a merger) would have received had the                   receive more than the amount of SFA to
                                             average of the rates specified in section                events not occurred. PBGC included                      which they are entitled. As provided in
                                             303(h)(2)(C)(i), (ii), and (iii) of ERISA                these provisions in the interim final rule              the interim final rule, PBGC concludes
                                             (disregarding modifications made under                   in consultation with the Treasury                       that, to achieve that end, it is reasonable
                                             clause (iv) of such section) for the                     Department.                                             not to give effect to changes made to a
                                             month in which such average is the                          With respect to mergers,                             plan’s structure or terms on or after July
                                             lowest among the 4 calendar months                       § 4262.4(f)(1)(ii) of the regulation                    9, 2021, if such changes would either
                                             ending with the month in which the                       provides that if two or more plans are                  artificially inflate the amount of SFA to
                                             plan’s initial application for special                   merged, then the SFA is limited so that                 which a plan is entitled or convert an
                                             financial assistance is filed, taking into               it does not exceed the sum of the SFA                   ineligible plan into an eligible plan.
                                             account only rates that have been issued                 that would have been calculated for all                    Informing this conclusion, section
                                             by the Internal Revenue Service as of                    of the plans involved in the merger had                 4262(e)(2)(B) of ERISA provides, as a
                                             the day that is the day before the date                  the plans applied separately for SFA.                   general rule, that the actuarial
                                             the plan’s initial application is filed.                 Thus, a plan that would not have been                   assumptions to be used by a plan are the
                                                Section 4262(f) of ERISA suggests that                entitled to any SFA if not for a merger                 assumptions used in the plan’s actuarial
                                             a plan may have multiple filing dates by                 that occurs on or after July 9, 2021,                   certification for the most recently
                                             providing two application deadlines:                     cannot become entitled to SFA by                        completed certification of plan status
                                             One for initial applications and one for                 merging with a plan that also would not                 before January 1, 2021 (unless those
                                             revised applications. Until an                           otherwise be entitled to any SFA. A                     assumptions are unreasonable),
                                             application is approved, there is no                     plan eligible for SFA may remain                        indicating that the plan applying for
                                             limit to the number of times that a plan                 eligible after the merger; however, a                   SFA must have been in existence and
                                             sponsor may file a revised application                   plan may not increase the amount of                     had an actuarial certification as to its
                                             as long as the last revised application is               SFA to which it is entitled by merging                  status before January 1, 2021. The
                                             filed by the statutory deadline of                       with another plan or plans on or after                  provisions regarding interest rate
                                             December 31, 2026. Once PBGC has                         July 9, 2021.                                           assumptions under section 4262(e)(2)(A)
                                             accepted an application for processing,                     PBGC considered two comments it                      are specific to the plan in its most recent
                                             PBGC believes that it is in the best                     received related to these provisions and                certification of plan status completed
                                             interest of all parties to avoid the                     decided not to make any changes to                      before January 1, 2021, and, under
                                             duplicative work and delays that would                   § 4262.4(f) in the final rule. One                      section 4262(e)(4), those assumptions
                                             result if a revised application were to                  commenter stated generally that PBGC                    may not be changed. A manipulation of
                                             use different interest rate assumptions.                 should not limit SFA or access to SFA                   those rates via a merger would not be
                                             To prevent multiple filings for purposes                 because the protections already in place                consistent with that prohibition.
                                             of changing the interest rate                            under the Pension Protection Act of                     Although the statute does not directly
                                             assumptions, if a plan’s application is                  2006, MPRA, and ARP are sufficient to                   address plan mergers, in the case of
                                             revised as provided under § 4262.11, the                 avoid abuse. A second commenter                         merged plans, each plan’s assumptions
                                             non-SFA interest rate and SFA interest                   suggested that the amount of SFA                        from the most recently completed pre-
                                             rate used for any revised application                    available to merged plans should not be                 2021 certification of plan status must be
                                             must be the same as the non-SFA                          limited to the amount each plan would                   maintained in order for section 4262(e)
                                             interest rate and SFA interest rate                      have been separately eligible to receive.               to be given effect with respect to the
                                             required to be used for the plan’s initial               The commenter argued that PBGC does                     plans that merged. PBGC’s rule fills the
                                             application for SFA.                                     not have authority to make rules                        gap left in the statute for the calculation
                                                                                                      limiting SFA for two or more plans that                 of SFA for plans that have been
                                             Calculating the Amount of SFA With                                                                               involved in a merger occurring on or
                                             Respect to Certain Events                                are merged, that a prohibition is not a
                                                                                                      reasonable condition regarding                          after July 9, 2021.
                                               Section 4262.4(f) of the regulation                                                                               In addition, section 4262(m)(1) of
                                                                                                      diversion of contributions, and that the
                                             addresses the possibility that a plan may                                                                        ERISA expressly authorizes PBGC, in
                                                                                                      rule denies needed assistance to plans
                                             implement certain changes to obtain                                                                              consultation with the Secretary of the
                                                                                                      that are facing insolvency.
                                             more SFA than was intended by section                                                                            Treasury, to impose reasonable
                                                                                                         PBGC disagrees with the commenter’s
                                             4262 of ERISA. In these situations, the                                                                          conditions ‘‘on an eligible
                                                                                                      assertion that PBGC does not have
                                             amount of SFA that would apply to a                                                                              multiemployer plan that receives
                                                                                                      authority to address possible abuse of
                                             plan is limited to the amount of SFA                                                                             special financial assistance’’ relating to
                                                                                                      the SFA program or to limit SFA, in the
                                             determined as if the events described in                                                                         certain aspects of plan terms or
                                                                                                      case of a merger, to the amount each
                                             § 4262.4(f) had not occurred. These                                                                              operations. Such conditions include
                                                                                                      plan would have been separately
                                             events include mergers, transfers of                                                                             those relating to the diversion of
                                                                                                      eligible to receive. As explained in the
                                             assets or liabilities (including spinoffs),                                                                      contributions to and allocation of
                                                                                                      interim final rule, section 4262(b)(1) of
                                             certain increases in accrued or projected                                                                        expenses to other benefit plans,
                                                                                                      ERISA establishes criteria for eligibility              increases in future accrual rates,
                                             benefits, and certain reductions in                      of a multiemployer plan for SFA, and
                                             contribution rates. The limitation                                                                               retroactive benefit improvements, and
                                                                                                      section 4262(j) provides for determining                reductions in employer contribution
                                             applies to events that occur between                     the amount of the SFA. It is appropriate
                                             July 9, 2021, and the SFA measurement                                                                            rates. PBGC’s authority to impose
                                                                                                      for PBGC, with its responsibility for                   reasonable conditions under section
                                             date. To accommodate the possibility of                  carrying out the purposes of the title IV               4262(m)(1) is not limited to restrictions




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                                             multiple events, the limitation does not                 insurance program,24 to impose
                                             apply on an event-by-event basis but is                                                                          on a plan following its receipt of SFA.
                                                                                                      conditions on plans receiving SFA                       PBGC is authorized to impose
                                             based on comparing the amount of SFA
                                             a plan applies for with the amount of                      24 PBGC’s inherent authority under section
                                                                                                                                                              conditions on a plan that ‘‘receives’’
                                                                                                      4002(b)(3) of ERISA allows PBGC to adopt
                                                                                                                                                              SFA. PBGC’s authority is not limited to
                                             parts—is the average of the three segment rates plus     regulations to carry out the purposes of the title IV   imposing conditions on a plan that has
                                             67 basis points.                                         insurance program.                                      received SFA. That understanding of


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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                          40981

                                             section 4262(m)(1) finds further support                 supplemented application is filed even                plan’s SFA measurement date,
                                             in section 4262(m)(2), which restricts                   if the supplemented application is not                determined under the interim final rule
                                             the conditions that PBGC can impose                      approved. A supplemented application                  as the last day of the calendar quarter
                                             not only ‘‘following receipt of’’ SFA, but               may be filed even if a plan would not                 immediately preceding the date the
                                             also ‘‘as a condition of’’ SFA. That broad               receive additional SFA as the result of               plan’s initial application for SFA was
                                             prohibition would be unnecessary if                      the filing. If the plan chooses to                    filed; the plan’s participant census data
                                             PBGC’s authority under section                           supplement, the plan will file a                      required to be used in the plan’s initial
                                             4262(m)(1) were limited to imposing                      supplemented application with the                     application for SFA under the interim
                                             only post-receipt conditions.                            changes and information specified in                  final rule; and the plan’s non-SFA
                                                The condition respecting mergers is                   the SFA supplemented application                      interest rate and SFA interest rate
                                             consistent with PBGC’s authority under                   instructions on PBGC’s website at                     determined under § 4262.4(e)(1) and (2)
                                             section 4262(m)(1) of ERISA to impose                    www.pbgc.gov to implement the                         of the final rule. Any SFA paid to the
                                             reasonable conditions relating to the                    provisions of the final rule for                      plan under the provisions of the final
                                             ‘‘diversion of contributions to, and                     determining the amount of the plan’s                  rule will be adjusted as described in
                                             allocation of expenses to, other benefit                 SFA, including the interest rate                      § 4262.12. A plan with a ‘‘pending
                                             plans.’’ When two or more plans merge,                   assumptions under § 4262.4(e). A                      application’’ that chooses not to
                                             each predecessor plan has diverted its                   supplemented application, like a                      withdraw and revise its application will
                                             contributions and allocated its expenses                 revised application, must be filed by                 be paid the amount of SFA as
                                             to the merged plan and thereby to each                   December 31, 2026, and in accordance                  determined under the interim final rule.
                                             other merging plan. A merged plan,                       with the processing system (including                 The plan is not precluded from later
                                             which combines assets and liabilities of                 priority groups) described in § 4262.10.              filing a supplemented application.
                                             two or more plans, each with its own set                 PBGC must review a supplemented                          If a plan applied for SFA under the
                                             of participants and beneficiaries, to all                application within 120 days of the filing             interim final rule and it was not
                                             of whom all the assets (and, thus, all the               date. The plan cannot change the plan’s               pending as of August 8, 2022, because
                                             contributions) must be available                         SFA measurement date, fair market                     the plan’s application was denied or the
                                             following the merger, is, in effect,                     value of assets, or participant census                filer withdrew the plan’s application in
                                             diverting contributions intended to                      data used in the plan’s application                   accordance with § 4262.11(d), the plan
                                             benefit one set of participants (the                     approved under the interim final rule.                may file a revised application (see the
                                             participants in the plan that received                   The plan also cannot propose a change                 provisions for a ‘‘withdrawn
                                             SFA) to another (the participants in                     in assumptions, except to propose a                   application’’ and a ‘‘denied application’’
                                             each other merging benefit plan).                        change to the plan’s employer                         under § 4262.4(g)(3) and (4)
                                                Accordingly, under section 4262(m)                    contribution assumption to exclude                    respectively). Any revised application
                                             of ERISA, in conjunction with section                                                                          must use the plan’s base data defined in
                                                                                                      contribution rate increases agreed to on
                                             4002(b)(3), PBGC is authorized to                                                                              § 4262.4(g)(5). Base data include the
                                                                                                      or after July 9, 2021, as permitted under
                                             impose reasonable conditions that                                                                              plan’s SFA measurement date,
                                                                                                      § 4262.4(c)(3) (in which case, the plan
                                             ensure that SFA is provided to plans in                                                                        determined under the interim final rule
                                                                                                      must exclude any benefit increases
                                             an amount that is not artificially inflated                                                                    as the last day of the calendar quarter
                                                                                                      resulting from those contribution
                                             by plan mergers. Conditions regarding                                                                          immediately preceding the date the
                                                                                                      increases). A plan may withdraw the
                                             events other than mergers are discussed                                                                        plan’s initial application for SFA was
                                                                                                      plan’s supplemented application and
                                             in the preamble of the interim final rule                                                                      filed; the plan’s participant census data
                                                                                                      file a new supplemented application at
                                             and examples illustrating the provisions                                                                       required to be used in the plan’s initial
                                                                                                      any time before the supplemented
                                             are included in § 4262.4(f)(6).                                                                                application for SFA under the interim
                                                                                                      application is denied or approved. If
                                             Calculating the Amount of SFA for                        PBGC denies a plan’s supplemented                     final rule; and the plan’s non-SFA
                                             Plans That Applied for SFA Under the                     application, the plan may file a new                  interest rate and SFA interest rate
                                             Interim Final Rule                                       supplemented application. Any new                     determined under § 4262.4(e)(1) and (2)
                                                                                                      supplemented application filed by the                 of the final rule. Any SFA paid to the
                                                Pursuant to its authority under                                                                             plan under the provisions of the final
                                             section 4262(c) of ERISA, PBGC in the                    plan must address the reasons cited by
                                                                                                      PBGC for the denial. Any SFA paid to                  rule will be adjusted as described in
                                             final rule adds new § 4262.4(g) to                                                                             § 4262.12.
                                             provide guidance on the requirements                     the plan under the provisions of the
                                             for SFA applications for plans that                      final rule will be adjusted as described              PBGC Review of Plan Assumptions
                                             applied for SFA under the interim final                  in § 4262.12, including to reflect the                   PBGC’s review of an application for
                                             rule.                                                    prior receipt of SFA.                                 SFA focuses on the reasonableness of
                                                If a plan’s application for SFA was                      If a plan applied for SFA under the                the plan’s demonstration regarding the
                                             approved under the regulation as in                      interim final rule and the plan’s                     amount of SFA for the plan. Section
                                             effect before August 8, 2022 (meaning                    application was not approved,                         4262.5 sets forth how PBGC reviews
                                             under the interim final rule), the plan                  withdrawn, or denied, and was pending,                plan assumptions.
                                             should look to the rules set forth under                 as of August 8, 2022, the plan should                    Section 4262 of ERISA generally looks
                                             § 4262.4(g)(1) for ‘‘approved                            look to the rules set forth under                     to plan assumptions previously selected
                                             applications.’’ Those rules provide that                 § 4262.4(g)(2) for ‘‘pending                          by the plan actuary for determining
                                             the plan may supplement its application                  applications.’’ They provide that the                 eligibility for and calculating the
                                             after SFA is paid under the terms of the                 plan’s pending application may be                     amount of SFA. A mechanism is
                                             interim final rule. When a plan files a                  withdrawn (as described in                            provided for a plan to propose changes




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                                             supplemented application, the                            § 4262.11(d)) and a revised application               to actuarial assumptions if it determines
                                             amendments in this final rule to                         filed, or not withdrawn and determined                that the use of one or more of its original
                                             permissible investments in § 4262.14                     under terms of the interim final rule.                assumptions (other than the interest
                                             and to the withdrawal liability                          Any revised application must use the                  rate) is unreasonable.
                                             condition in § 4262.16(g)(2) become                      plan’s base data defined in                              Under section 4262 of ERISA,
                                             applicable upon the date the                             § 4262.4(g)(5). Base data include the                 actuarial assumptions generally are


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                                             40982                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             derived from a plan’s certification of                   such assumptions are unreasonable,’’                  determines that one or more original
                                             plan status under section 305 of ERISA.                  PBGC disagrees that a lesser standard,                assumptions are unreasonable and must
                                             In general, PBGC believes that a plan’s                  such as clearly erroneous or clearly                  be changed, § 4262.5(c) provides that
                                             actuarial assumptions adopted for the                    unreasonable, should be used by PBGC                  the plan’s application must describe
                                             certification of plan status (and not for                when reviewing a plan’s assumptions                   why the original assumption is no
                                             entitlement to SFA) represent a neutral                  used to determine the amount of SFA                   longer reasonable, propose to use a
                                             view of circumstances, unbiased by the                   for the plan. In addition, PBGC                       different assumption (the changed
                                             prospect of receiving a substantial sum                  disagrees with the one commenter’s                    assumption), and demonstrate that the
                                             of money. Accordingly, as provided in                    assertion that the passage of time,                   changed assumption is reasonable. If
                                             the interim final rule, PBGC expects to                  subsequent events, or the different                   there is a change in assumptions, each
                                             give less intensive scrutiny to ‘‘original’’             purpose of the measurement should not                 of the actuarial assumptions and
                                             assumptions than to changed                              be considered by the plan’s actuary. As               methods (other than the interest rate
                                             assumptions.                                             described later in this section of the                assumptions) must be reasonable, and
                                                Section 4262(e)(1) of ERISA requires                  preamble, the statute provides a                      the combination of actuarial
                                             PBGC to accept actuarial assumptions                     mechanism for changing prior                          assumptions and methods (excluding
                                             incorporated in a plan’s certification of                assumptions that are no longer                        the interest rate assumptions) also must
                                             plan status completed before 2021 for                    reasonable (excluding the interest rate               be reasonable. Plans are required to
                                             purposes of eligibility unless PBGC                      assumption). This indicates that the                  provide detailed information about any
                                             determines that such assumptions are                     passage of time, subsequent events, and               changed assumptions, and PBGC will
                                             ‘‘clearly erroneous.’’ For all other                     the purpose of the measurement should                 perform a less deferential analysis of
                                             purposes (including determining the                      be considered by the plan’s actuary. If               those assumptions than of the original
                                             amount of SFA), the statute requires                     the plan’s actuary does not determine                 pre-2021 assumptions.
                                             PBGC to accept the assumptions used                      that one or more of the pre-2021                         Concurrent with the interim final
                                             unless PBGC determines that they are                     assumptions are unreasonable for the                  rule, PBGC issued assumptions
                                             unreasonable.                                            purpose of determining the amount of                  guidance containing guidelines for
                                                Several commenters recommended                        SFA, PBGC will defer to the plan’s use                changes to certain assumptions that
                                             that PBGC take a deferential approach                    of those assumptions unless PBGC finds                plans may use for purposes of
                                             when reviewing assumptions used by a                     the assumptions unreasonable. PBGC,                   determining eligibility for SFA and the
                                             plan’s actuary in the most recent                        however, may request additional                       amount of SFA. Plans may, but are not
                                             certification of plan status completed                   information from the plan to determine                required to, use the guidelines. Plans
                                             before 2021. These commenters argued                     whether a pre-2021 assumption is                      that do not use the guidelines may
                                             that if a plan sponsor does not propose                  unreasonable.                                         demonstrate that the change is
                                             a change, PBGC should refrain from                          Each of the actuarial assumptions and              reasonable by providing additional
                                             challenging the plan’s assumptions                       methods used for the actuarial                        information beyond what would be
                                             because the intent of the statute is to                  projections (excluding the interest rate              required under the guidelines.
                                             allow those assumptions to serve as                      assumptions) must be reasonable in                    Guidelines are available for contribution
                                             default assumptions. They argue that                     accordance with generally accepted                    base units (CBUs), administrative
                                             this would allow SFA applications, in                    actuarial principles and practices,25                 expenses, mortality, contribution rates,
                                             comparison to MPRA applications, to be                   taking into account the experience of                 and new entrant profiles, and can be
                                             expeditiously reviewed by avoiding the                   the plan and reasonable expectations.                 found in the guidance issued on PBGC’s
                                             level of scrutiny that was imposed when                  To be reasonable, an actuarial                        website at www.pbgc.gov/guidance. In
                                             reviewing actuarial assumptions for                      assumption or method generally must,                  addition, for various reasons, a plan
                                             MPRA applications. These commenters                      among other things, be appropriate for                may have a gap in the assumption for
                                             requested guidance from PBGC stating                     the purpose of the measurement, reflect               projected CBUs and administrative
                                             that the pre-2021 assumptions are                        the actuary’s professional judgment,                  expenses used in the prior certification
                                             deemed acceptable. One commenter                         take into account current and historical              of plan status such that the assumption
                                             requested that PBGC accept the plan’s                    data that is relevant to selecting the                cannot be used ‘‘as is’’ for determining
                                             assumptions unless they are clearly                      assumption for the measurement date,                  SFA. To assist applicants and aid in the
                                             erroneous or unreasonable. Another                       reflect the actuary’s estimate of future              review of a plan’s CBU assumption and
                                             suggested that PBGC not challenge pre-                   experience, and reflect the actuary’s                 administrative expense assumption,
                                             2021 assumptions unless clearly                          observation of the estimates inherent in              PBGC developed standard extensions
                                             unreasonable. Yet another commenter                      market data (if any). In addition, an                 that plans can use to complete the
                                             requested that PBGC clarify that pre-                    actuarial assumption or method must be                assumption set for a plan that otherwise
                                             2021 assumptions that were reasonable                    expected to have no significant bias (i.e.,           can use its original assumptions. With
                                             for purposes of the pre-2021                             it is not significantly overly optimistic             respect to the § 4262.5(c)(1)(iii)
                                             certification of plan status will not be                 or pessimistic).                                      requirement to demonstrate that the
                                             deemed unreasonable for purposes of                         The statute provides a mechanism for               changed assumption is reasonable, it is
                                             the SFA application because of the                       changing prior assumptions (other than                sufficient to include a statement to that
                                             passage of time, subsequent events, or                   the interest rate assumption) that are no             effect in the application instead of a
                                             the different purpose of measurement.                    longer reasonable. If a plan actuary                  detailed demonstration if the plan uses
                                                PBGC agrees that, in comparison to a                                                                        standard extensions described in the
                                             plan’s changed assumptions, for the                         25 Actuarial Standards of Practice (ASOPs) are
                                                                                                                                                            assumptions guidance.
                                             reasons discussed earlier in the                         issued by the Actuarial Standards Board and are          Two commenters suggested that PBGC




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                                                                                                      available at http://
                                             preamble, PBGC should take a more                        www.actuarialstandardsboard.org/standards-of-         could permit MPRA plans to use
                                             deferential approach in reviewing a                      practice. Certain ASOPs, including ASOPs Nos. 4,      projected CBUs consistent with their
                                             plan’s use of pre-2021 assumptions.                      23, 27, 35, 41, and 56 may be relevant to the         approved MPRA applications as a safe-
                                             However, given the language in section                   actuary’s work related to special financial
                                                                                                      assistance, including the assessment of the
                                                                                                                                                            harbor assumption. One of these
                                             4262(e)(2)(B) of ERISA that a plan shall                 reasonableness of the actuary’s assumptions and       commenters also suggested a safe harbor
                                             use the pre-2021 assumptions ‘‘unless                    methods.                                              for MPRA plans to use other actuarial


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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                         40983

                                             assumptions from their approved MPRA                     assumption and on the acceptable                      plan’s SFA application. Section 4262.6
                                             application. If an assumption used in a                  adoption of or update to a plan’s                     summarized the requirements for an
                                             plan’s approved MPRA application is                      mortality improvement projection scale.               application to be considered complete,
                                             the same as an assumption used in the                    PBGC specified the information needed                 including: plan information; actuarial
                                             plan’s last pre-2021 certification of plan               to show that a plan’s assumed new                     and financial information (including the
                                             status, and the plan’s actuary                           entrant profile and administrative                    amount of SFA requested); a completed
                                             determines that the assumption is not                    expenses assumption are based on the                  checklist (per the SFA instructions on
                                             unreasonable for the purpose of                          acceptable methodology as indicated by                PBGC’s website at www.pbgc.gov); the
                                             determining the amount of SFA, PBGC                      the guidance. For a plan that reflects                signature of an authorized trustee who
                                             will provide deference to the actuary’s                  significant plan experience between the               is a current member of the board of
                                             determination unless PBGC finds the                      participant census date and the                       trustees; a signed statement under
                                             assumption unreasonable. If an                           application filing date, PBGC added that              penalty of perjury; a copy of the
                                             assumption used in a plan’s approved                     the plan should provide a rationale for               executed plan amendment providing
                                             MPRA application is not the same as an                   how it determined that the plan                       that, beginning with the SFA
                                             assumption used in the plan’s last pre-                  experience was significant, and made                  measurement date, the plan must be
                                             2021 certification of plan status, the                   other updates to the related example.                 administered in accordance with the
                                             plan actuary may propose to change the                   PBGC added examples and other                         restrictions and conditions specified in
                                             assumption to the assumption used in                     clarifications to acceptable assumption               section 4262 of ERISA and this
                                             the plan’s approved MPRA application                     changes.                                              regulation; if the plan suspended
                                             in accordance with § 4262.5(c). PBGC is                     PBGC also added guidelines on                      benefits under sections 305(e)(9) or
                                             amending its assumptions guidance to                     projecting future receipt of employer                 4245(a) of ERISA, a copy of the
                                             provide that PBGC will generally accept                  withdrawal liability payments, noting                 proposed plan amendment to reinstate
                                             a change in assumption to an                             that the projection should reflect the                suspended benefits and pay make-up
                                             assumption used in a plan’s approved                     actuary’s best estimate of future plan                payments and a certification by the plan
                                             MPRA application, including projected                    experience and that the plan’s actuary                sponsor that the plan amendment will
                                             CBUs, if the plan includes the                           should consider reflecting a reasonable               be adopted timely; and any information
                                             information required by § 4262.5(c) in                   allowance for amounts considered                      required by PBGC to clarify or verify the
                                             the application and the demonstration                    uncollectible. PBGC added guidelines                  information in a filed application. If any
                                             provided by the plan shows the                           for plans where all the assumptions                   of the information required under the
                                             assumption is reasonable for the                         required to be used for projections in                regulation and in the SFA instructions
                                             purpose of determining the amount of                     the pre-2021 certification of plan status             is missing from the filed application, the
                                             SFA.                                                     were not identified. The assumptions                  application will not be considered
                                                Several commenters requested that                     guidance also provides guidelines on                  complete.
                                             PBGC’s guidance provide more                             acceptable changes for the exclusion of                  The SFA instructions (on PBGC’s
                                             flexibility in contribution assumptions                  terminated vested participants over a                 website at www.pbgc.gov), including
                                             or recommended specific changes, such                    certain age. Finally, PBGC added                      templates, supplement the regulation
                                             as eliminating the requirement that a                    information about how applicants can                  and provide guidance to plan sponsors
                                             change in CBU assumption be                              schedule an informal pre-application                  and practitioners on how to prepare and
                                             adequately supported by historical data.                 conference with PBGC.                                 file the required application
                                             The commenters stated that historical                       PBGC considered the comments on                    information. Sections 4262.6 through
                                             data is not necessarily predictive of                    CBU assumptions and, except for some                  4262.8 and the instructions specify the
                                             future changes. One commenter                            clarifying changes, did not adopt the                 minimum necessary plan, actuarial, and
                                             explained that the historical data                       suggestion of commenters to eliminate                 financial information that PBGC
                                             requirement defies economic trends in                    the guideline that a change in CBU                    requires to approve or deny an
                                             many industries, is inconsistent with                    assumption be adequately supported by                 application for SFA and to verify the
                                             the reasonableness standard in the                       historical data. Instead, PBGC included               amount of SFA within the short 120-day
                                             statute, and may contravene actuarial                    examples in the guidelines to illustrate              review period provided under section
                                             standards which require actuaries to                     how historical data and industry trends               4262(g) of ERISA.
                                             consider factors that may affect future                  can be used to project future changes in                 PBGC in the final rule is amending
                                             experience, such as economic                             CBUs under the guidelines.                            the information required to be filed as
                                             conditions for the industry and the                         PBGC’s guidance on CBUs and other                  described in §§ 4262.6 through 4262.8 to
                                             availability of alternative employment                   assumptions may not be reasonable for                 reflect the new methodology in § 4262.4
                                             due to automation. Another commenter                     all plans and is not binding on plans. A              for determining the amount of a plan’s
                                             asked for guidance, or clarifications of                 plan should follow the assumptions                    SFA and making other clarifying
                                             PBGC’s guidance, on various                              guidance only if it is reasonable for the             changes.
                                             assumptions, including mortality, new                    plan to do so. As explained earlier in                   Based on its experience reviewing
                                             entrant assumptions, and employer                        the preamble, applicants may propose                  applications, in the final rule, PBGC is
                                             withdrawals.                                             changes to the plan’s assumptions by                  amending § 4262.6(a) to provide that, if
                                                PBGC has updated its assumptions                      following § 4262.5(c), including                      information is not accurately completed
                                             guidance to address some of the                          describing why the original assumption                or not filed with the application, PBGC
                                             comments received, provisions of this                    is no longer reasonable, disclosing the               may, in its discretion, either require the
                                             final rule, and to provide more clarity                  changed assumption, and demonstrating                 plan sponsor to file additional
                                             and additional guidance based on                                                                               information to correct the error or




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                                                                                                      that the changed assumption is
                                             experience in reviewing applications. In                 reasonable.                                           omission or consider the application
                                             addition to the change described earlier                                                                       incomplete. If correction of any error or
                                             in the preamble for plans with approved                  Information To Be Filed                               omission requires a change to the
                                             MPRA applications, PBGC added                              Sections 4262.6 through 4262.8 of the               amount of SFA requested, the
                                             guidelines on acceptable changes to a                    interim final rule described the                      application will be considered
                                             plan’s disabled life mortality                           information that must be included in a                incomplete. This provision is intended


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                                             40984                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             to provide some flexibility in the                       disclosed. Except to the extent required              the successor plan. The combined
                                             application review process to enable                     by the Privacy Act, PBGC provides no                  information must reflect that, on the
                                             some errors to be corrected without                      assurance of confidentiality in any                   date SFA is transferred to the plan,
                                             plans having to file revised applications.               information or documentation included                 PBGC will rescind the order that created
                                                In addition, PBGC is modifying the                    in an application for SFA.                            the successor plan, and the plan sponsor
                                             language of the required statement                                                                             will remove plan provisions and
                                             under penalty of perjury in § 4262.6(b)                  Application for Plans With a Partition
                                                                                                                                                            amendments that were required to be
                                             to make the language more precise and                       Under section 4233 of ERISA, a plan                adopted under the order.
                                             is modifying the language of the                         may apply to PBGC for a partition to                     Another condition is that the
                                             required amendments to the plan in                       fund a portion of the plan’s benefits to              application must include a statement
                                             § 4262.6(e). In the final rule, clarifying               avoid insolvency. Upon PBGC’s                         that the plan was partitioned and a copy
                                             language, ‘‘notwithstanding anything to                  approval of an application for partition,             of the provisions or amendments that
                                             the contrary in this or in any other                     PBGC issues a partition order to                      the plan was required to adopt under
                                             governing document’’ is added to                         provide: (1) for a transfer from the                  the partition order. A partitioned plan’s
                                             § 4262.6(e)(1) so that the required                      original plan to the plan created by the              application must include all the
                                             language for the amendment reads,                        partition order (the successor plan), the             required information described in
                                             ‘‘Beginning with the SFA measurement                     minimum amount of benefit liabilities                 §§ 4262.6 through 4262.8 for
                                             date selected by the plan in the plan’s                  necessary for the original plan to remain             applications generally. However, if the
                                             application for special financial                        solvent, and (2) financial assistance                 plan sponsor of a partitioned plan has
                                             assistance, notwithstanding anything to                  from PBGC under section 4261 to pay                   already filed any of the required
                                             the contrary in this or any other                        those benefits. The successor plan is but             information with PBGC, the sponsor is
                                             governing document, the plan shall be                    a creature of PBGC’s partition order,                 not required to include that information
                                             administered in accordance with the                      terminated and insolvent from its                     again with its SFA application. Instead,
                                             restrictions and conditions specified in                 inception. The original and successor                 the sponsor need only note on the
                                             section 4262 of ERISA and 29 CFR part                    plans are required by section 4233(d)(2)              checklist described under § 4262.6(a)
                                             4262. This amendment is contingent                       to have the same plan sponsor and                     that the information was already filed.
                                             upon approval by PBGC of the plan’s                      administrator.                                           Partitioned plans also have benefit
                                             application for special financial                           Section 4262(c)(3) of ERISA requires               suspensions that must be reinstated if
                                             assistance.’’ PBGC is also providing                     PBGC to provide an alternative                        the plan is approved for SFA. Under
                                             model language for the benefit                           application for SFA that may be used for              § 4262.15, a plan receiving SFA must
                                             reinstatement amendments under                           a plan approved for a partition before                reinstate benefits suspended under
                                             § 4262.6(e)(2) to assist filers in                       March 11, 2021. Section 4262.9 of                     section 305(e)(9) of ERISA and provide
                                             complying with the amendment                             PBGC’s regulation describes this                      make-up payments to participants and
                                             requirements. In addition, PBGC is                       application.                                          beneficiaries to restore previously
                                             amending § 4262.7(e)(2) to require that                     Section 4262.9 does not provide                    suspended benefits in accordance with
                                             the certification by the plan sponsor that               eligibility for SFA. As explained earlier             guidance issued by the Treasury
                                             the benefit reinstatement amendments                     in the preamble under the subheading                  Department and the IRS in Notice 2021–
                                             will be timely adopted must be signed                    Eligible Multiemployer Plans, section                 38, 2021–30 IRB 155. This requirement
                                             either by all members of the plan’s                      4262(b)(1) of ERISA lists four categories             applies to both the original plan and the
                                             board of trustees or by one or more                      of plans that are eligible for SFA, and               successor plan created by a partition.
                                             trustees duly authorized to sign the                     PBGC cannot extend eligibility for SFA                Having the original and successor plans
                                             certification on behalf of the entire                    through its regulation to a plan that is              apply as one will ensure coordinated
                                             board of trustees.                                       not included in any of those categories.              benefit reinstatements for all
                                                As described in the Paperwork                         In the case of a partitioned plan, the                participants in the partitioned plan.
                                             Reduction Act section of the interim                     original and successor plans must each                   The filing of an application for a
                                             final rule, the application instructions                 be separately eligible. Each must have                partitioned plan falls under priority
                                             and checklist were submitted to the                      been approved for a suspension of                     group 2 for purposes of § 4262.10(d)
                                             Office of Management and Budget                          benefits under section 305(e)(9) of                   (explained in this preamble under the
                                             (OMB) for review and approval under                      ERISA as of March 11, 2021, to be                     subheading Processing Applications),
                                             the Paperwork Reduction Act. PBGC                        eligible for SFA under section                        consistent with other plans that are
                                             received approval for this information                   4262(b)(1)(B) of ERISA and                            eligible for SFA because they have
                                             collection on an emergency basis for a                   § 4262.3(a)(2). To avoid any confusion                implemented a suspension of benefits
                                             period of 180 days, expiring on January                  about the eligibility of a partitioned                under section 305(e)(9) of ERISA as of
                                             31, 2022, under control number 1212–                     plan, PBGC is clarifying this                         March 11, 2021.
                                             0074. Subsequently, OMB extended its                     requirement in § 4262.9(a) of the final                  Successor plans created in a partition
                                             approval for the information collection                  rule.                                                 have also been receiving financial
                                             for an additional 3 years, expiring on                      The plan sponsor of a partitioned plan             assistance from PBGC with repayment
                                             January 31, 2025.                                        where the original and successor plans                obligations under section 4261 of
                                                With the final rule, PBGC is                          are each eligible to apply for SFA must               ERISA. How financial assistance under
                                             submitting this information collection,                  apply for SFA using the alternative                   section 4261 is repaid is prescribed
                                             with the described modifications, to                     application, which contemplates                       under § 4262.12.
                                             OMB and its decision will be available                   PBGC’s rescission of the partition order
                                             at www.Reginfo.gov.                                      as prescribed under § 4262.9(c) and                   Processing Applications




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                                                Unless confidential under the Privacy                 other conditions particular to a                        Under section 4262(c) of ERISA,
                                             Act, all information that is filed with                  partitioned plan as described under                   PBGC must issue regulations or
                                             PBGC for an application for SFA may be                   § 4262.9(b). One of these conditions is               guidance setting forth requirements for
                                             made publicly available, at PBGC’s sole                  that the plan sponsor must file a single              SFA applications. Applications are
                                             discretion, on PBGC’s website at                         application for SFA, consisting of                    considered timely filed under section
                                             www.pbgc.gov or otherwise publicly                       information about the original plan and               4262(g) only if they are filed in


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                                                                           Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                            40985

                                             accordance with PBGC’s regulations.                             final rule. Most of these commenters                   earlier date as processing capacity
                                             PBGC’s inherent authority under section                         focused on allowing more plans to                      permits, as updated on PBGC’s website
                                             4002(b)(3) of ERISA allows PBGC to                              apply earlier during the 2-year priority-              at www.pbgc.gov. As priority groups
                                             adopt regulations relating to the conduct                       group period to speed up the provision                 open, PBGC will continue to accept
                                             of its business and to carry out the                            of SFA to eligible plans. These                        applications from plans in earlier
                                             purposes of the title IV insurance                              commenters wanted plans eligible to file               priority groups. While the priority
                                             program. Under section 4262(d) of                               in a later priority group to be given the              mechanism may entail a relatively short
                                             ERISA, PBGC also may limit the filing                           opportunity to file in an earlier priority             deferral of an application for a given
                                             of SFA applications to filings for plans                        group—e.g., allow plans projected to                   plan until its respective priority group
                                             that are in one or more of four ‘‘priority’’                    become insolvent within 1 year of filing               opens, the amount of SFA ultimately
                                             categories during a period limited to                           an application and designated to file in
                                                                                                                                                                    awarded will reflect the amount
                                             within the first 2 years after March 11,                        priority group 2 to file in priority group
                                             2021.                                                           1, or allow plans that implemented                     required to pay all benefits due
                                                Section 4262.10 of the regulation sets                       benefit suspensions under MPRA and                     pursuant to the statute.
                                             forth the system for processing                                 also able to file in priority group 2 to file             The final rule does not make changes
                                             applications within 120 days, as                                in priority group 1. Some of these                     to the filing dates for plans in a priority
                                             required by section 4262(g) of ERISA                            commenters explained that the plans in                 group under § 4262.10(d)(2), but using
                                             and § 4262.11 of the regulation. The                            priority group 2 that are projected to                 its discretion under the regulation,
                                             processing system will provide every                            become insolvent in 2022 should be                     PBGC has updated its website at
                                             prospective submitter a fair opportunity                        able to apply earlier to avoid the                     www.pbgc.gov to allow a plan in priority
                                             to file its application by December 31,                         complexity of preparing for insolvency                 group 2 that is expected to become
                                             2025 (or December 31, 2026, for a                               or even becoming insolvent before                      insolvent within 1 year of the date the
                                             revised or supplemented application).                           receiving SFA, and to avoid the                        plan’s application for SFA is filed, to
                                             This electronic filing system is based on                       disruption this would cause plan                       file an application earlier. PBGC agrees
                                             three mechanisms. The first mechanism                           participants. Commenters who are                       with comments that this would lessen
                                             permits PBGC to accept applications in                          participants in MPRA plans (i.e., plans
                                             a manner that, in PBGC’s estimation,                                                                                   the disruption for plans and
                                                                                                             that implemented benefit suspensions)
                                             allows for sufficient review and                                                                                       participants. In November 2021, the
                                                                                                             described the reduction in their benefits
                                             processing within 120 days of filing.                           as a life-altering loss. They asked that               earliest date of filing for these plans was
                                             The second mechanism is a priority                              their plans be able to apply in priority               changed from January 1, 2022, to
                                             system permitted by section 4262(d) of                          group 1 along with insolvent plans                     December 27, 2021, enabling these plans
                                             ERISA. The third mechanism is a                                 because the impact of benefit cuts on                  to prepare and file their applications
                                             notification system on PBGC’s website                           plan participants is the same.                         earlier. PBGC will continue to monitor
                                             to keep prospective applicants apprised                            Other commenters wanted PBGC to                     the flow of applications to consider
                                             of when a filing window opens or closes                         move up the beginning date identified                  earlier filing dates as processing
                                             and (if applicable) to what priority                            in the interim final rule for a plan in a              capacity permits. PBGC will inform
                                             groups filing is limited. This mechanism                        priority group to file—e.g., priority                  prospective applicants of any earlier
                                             will enable applicants to know when                             group 6 plans should be permitted to                   dates through updates on its website at
                                             the system is accepting applications                            file before priority group 5.                          www.pbgc.gov.
                                             from plans in their priority group. The                            The filing dates provided in the
                                                                                                             interim final rule are the latest dates                   Taking into account the previously
                                             statutory authority and rationale behind
                                             these mechanisms are fully explained in                         PBGC expects to begin accepting                        described change, the following table
                                             the preamble to the interim final rule.                         applications from plans in each group.                 describes each priority group and the
                                                PBGC received several comment                                A plan in a priority group may file an                 date that it is currently scheduled to
                                             letters on this section of the interim                          application beginning on that date, or an              open:

                                              Priority group              Description of priority group—date plans may apply for SFA                  Description of priority group—date plans may apply for SFA

                                             1 ......................    Plans already insolvent or projected to become insolvent be-                Beginning on July 9, 2021
                                                                           fore March 11, 2022.
                                             2 ......................    Plans expected to be insolvent within 1 year of the date an                 Beginning on December 27, 2021.
                                                                           application for SFA is filed.
                                             .........................   Plans that implemented a benefit suspension under ERISA                     Beginning on January 1, 2022.
                                                                           section 305(e)(9) as of March 11, 2021.
                                             3 ......................    Plans in critical and declining status that had 350,000 or more             Beginning on April 1, 2022.
                                                                           participants.
                                             4 ......................    Plans projected to become insolvent before March 11, 2023 ...               Beginning on July 1, 2022.
                                             5 ......................    Plans projected to become insolvent before March 11, 2026 ...               Date to be specified on PBGC’s website at least 21 days in
                                                                                                                                                       advance of such date, but no later than February 11, 2023.
                                             6 ......................    Plans for which PBGC computes the present value of financial                Date to be specified on PBGC’s website at least 21 days in
                                                                           assistance under section 4261 of ERISA to be in excess of                   advance of such date, but no later than February 11, 2023.
                                                                           $1 billion (in the absence of SFA).




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                                               Other commenters suggested                                      The final rule does not change the                   ERISA pending before the Treasury
                                             expanding the priority categories to                            composition of priority groups as                      Department (and so had not
                                             include other similar plans or to expand                        commenters suggested, such as by                       implemented a benefit suspension as of
                                             the number of priority groups by                                including in priority group 2 plans that               March 11, 2021) or plans that had
                                             identifying plans for a priority group 7.                       had or still have a benefit suspension                 applied for a benefit suspension but had
                                                                                                             application under section 305(e)(9) of                 their application withdrawn or denied.


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                                             40986                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             A plan in any of the four priority                       Another commenter argued that plans                   the plan’s SFA measurement date and
                                             categories identified in section 4262(d)                 that do not meet the $1 billion threshold             other base data aligned with that date,
                                             of ERISA will have a fair opportunity to                 are likely plans that cover workers in                may nonetheless be prevented from
                                             file an application under § 4262.10(d)(2)                lower wage industries, and that these                 filing on that date because the filing
                                             of the regulation during the 2-year                      workers also are entitled to know when                window has closed temporarily. If a
                                             priority period ending on March 11,                      their plans may apply for SFA.                        temporary closure extends into the next
                                             2023. As noted in the interim final rule,                   PBGC considered commenter requests                 calendar quarter, a plan’s application
                                             PBGC’s objective is to accept and                        to define a new priority group 7. Section             may have to be significantly revised to
                                             process as many applications in the                      4262.10(d)(2)(vii) of the interim final               include a new SFA measurement date
                                             highest priority group as possible before                rule provides that PBGC may add                       and possibly new census data. The
                                             opening the submission process to the                    additional priority groups based on                   commenter suggested that PBGC could
                                             next priority group. Ultimately—and no                   other circumstances similar to those                  allow plans that were ready to file an
                                             later than March 11, 2023—the                            described for priority groups 1 through               application, but that were unable to do
                                             submission process will be opened to all                 6. While PBGC has not made changes to                 so because the filing window closed
                                             eligible plans (whether or not in a                      § 4262.10(d)(2) to add additional                     temporarily, to submit a ‘‘notice of
                                             statutory priority category) to ensure                   priority groups, PBGC will continue                   intent to file’’ that would lock in the
                                             that every prospective applicant has a                   monitoring its application processing to              plan’s SFA measurement date and other
                                             fair opportunity to file its application                 determine whether additional priority                 base data. The suggested notice would
                                             during the statutory period.                             groups should be added. Any additional                allow the plan to apply on a different
                                                Other commenters wanted more                          priority groups added and the date                    date when the filing window re-opened
                                             certainty about which plans fall into the                PBGC will begin accepting applications                but with the same application.
                                             final priority group 6 under the interim                 for such groups will be posted in                        PBGC considered the comment and,
                                             final rule, or groups 6 and 7, and when                  guidance on PBGC’s website at                         to address the problem described by the
                                             the plans could begin applying.                          www.pbgc.gov.                                         commenter, has created in § 4262.10(g)
                                             Commenters recommended that PBGC                            The final rule makes some clarifying               of the final rule a simple process for
                                             identify and post as quickly as possible                 changes in § 4262.10(d), including to                 ‘‘locking in’’ a plan’s SFA measurement
                                             the names of the plans it determines to                  clarify that an application filed by a                date and other base data, which is
                                             be in priority group 6 to provide                        plan to which benefit liabilities were                available for all plans that file after
                                             certainty to plans expecting to apply in                 transferred (by merger or otherwise)                  March 11, 2023, and on or before
                                             priority group 6. Under                                  from a plan that filed an initial                     December 31, 2025. The process also is
                                             § 4262.10(d)(2)(vi), a plan is in priority               application for SFA will be treated as a              available for plans in priority groups 5,
                                             group 6 if the plan is projected by PBGC                 revised application and not an initial                6, and any additional priority group
                                             to have a present value of financial                     application.                                          PBGC may add before March 11, 2023,
                                             assistance payments under section 4261                   Lock-in Application                                   if PBGC temporarily closes the filing
                                             of ERISA that exceeds $1 billion if SFA                                                                        window when it is otherwise accepting
                                             is not ordered. PBGC will list the plans                    Section 4262.10(d)(1) of the interim               applications for plans in those priority
                                             in priority group 6 on its website at                    final rule provides that SFA                          groups. A lock-in application is a pro
                                             www.pbgc.gov well in advance of the                      applications are processed based on                   forma initial application submitted via
                                             first date filings may be accepted, but                  capacity to allow for sufficient review               email and containing the plan’s
                                             not later than the earlier of November                   and processing by PBGC within the                     identifying information, priority group
                                             15, 2022, or 30 days before opening the                  short period of time required by the                  information (if applicable), a statement
                                             filing period for priority group 6. The                  statute. Once the number of applications              of intent to lock in the plan’s base data,
                                             date a plan in priority group 6 may file                 reaches that level, the filing window                 a certification signed by an authorized
                                             an application will be posted at least 21                will temporarily close until PBGC has                 trustee, and other information as
                                             days in advance of such filing date,                     capacity to process more applications.                described in the lock-in application
                                             which will be no later than February 11,                 An application will be considered filed               instructions on PBGC’s website at
                                             2023.                                                    on the date it is submitted electronically            www.pbgc.gov. If the lock-in application
                                                A commenter also recommended                          to PBGC if the application meets                      satisfies the requirements for a lock-in
                                             including plans with unfunded vested                     applicable filing requirements,                       application, it will be considered filed
                                             benefits (UVBs) over $1 billion in a                     including authorized signatures, and                  and immediately denied for
                                             priority group 7, with UVBs determined                   can be accommodated in accordance                     incompleteness.
                                             using current liability assumptions                      with the processing system. Otherwise,                   PBGC may learn, during its review of
                                             reported in the plan’s last Form 5500                    PBGC will not consider the application                a plan’s revised application, that the
                                             Schedule MB filed before 2021. The                       filed and will notify the applicant that              plan is not eligible for SFA. In that
                                             commenter suggested defining this                        the application must be filed in                      situation, the lock-in application will
                                             group so that a plan with the                            accordance with the processing system                 not establish the plan’s base data. If the
                                             expectation of being in priority group 6,                and instructions on PBGC’s website.                   plan subsequently becomes eligible for
                                             but not named to priority group 6, could                 PBGC maintains a dedicated web page                   SFA, the plan may file a revised
                                             know that it could apply shortly                         for applications on its website at                    application to demonstrate that the plan
                                             thereafter and not have to significantly                 www.pbgc.gov to inform prospective                    is eligible for SFA and establish the
                                             revise its application.                                  applicants about the current status of                plan’s base data.
                                                Commenters also reasoned that                         the filing window, as well as to provide
                                             providing SFA to these large plans                       advance notice of when PBGC expects                   Emergency Filings




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                                             earlier (by allowing them to apply                       to open or temporarily close the filing                 Section 4262.10(f) of the interim final
                                             earlier) means the plans will have                       window.                                               rule provides for an emergency filing
                                             expended less of their assets to meet                       One commenter remarked that an                     process for priority applications from a
                                             obligations, and therefore need less                     effect of the ‘‘metering system’’ is that             plan that is insolvent or expected to be
                                             SFA, which in turn may result in less                    a plan preparing its initial application              insolvent under section 4245(a) of
                                             cost to the SFA program overall.                         for submission on a particular date, with             ERISA within 1 year of filing an


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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                           40987

                                             application, or a plan that has                          information required to be filed);                    sponsor withdraws an application, and
                                             implemented a suspension of benefits                     because an assumption is unreasonable,                the plan sponsor submits a revised
                                             under section 305(e)(9) of ERISA as of                   a proposed change in assumption is                    application, it must use the base data
                                             March 11, 2021. Beginning with PBGC’s                    individually unreasonable, or the                     required to be used in its initial
                                             acceptance of priority group 2 filings,                  proposed changed assumptions are                      application, but it may make other
                                             PBGC is accepting emergency filings                      unreasonable in the aggregate; or                     changes. However, in the final rule,
                                             from these plans during periods when                     because the plan is not an eligible                   PBGC clarifies that if the plan was not
                                             PBGC would not otherwise accept such                     multiemployer plan. For example,                      eligible for SFA on the date the plan
                                             applications because the filing window                   pending approval of an application, if                filed its initial application, the plan’s
                                             is closed. A filer submitting an                         PBGC determines that documentation                    base data will not be fixed. Instead, if
                                             application under the emergency filing                   supporting a certification of critical and            the plan is able to demonstrate
                                             process must substantiate the claim of                   declining status is missing, or if the plan           eligibility for SFA at a later date in a
                                             emergency status and notify PBGC, in                     sponsor has not responded to a PBGC                   revised application, the revised
                                             accordance with the SFA instructions                     request for information to clarify an                 application will establish the plan’s
                                             on PBGC’s website at www.pbgc.gov,                       item in that documentation, PBGC’s                    base data.
                                             before submission of the impending                       notice will identify the missing                         PBGC’s decision on an application for
                                             application.                                             information or documentation required                 SFA is a final agency action for
                                                One commenter suggested that                          to complete the application. If PBGC                  purposes of judicial review under the
                                             another option for advancing the date                    denies an application, the plan sponsor               Administrative Procedure Act (5 U.S.C.
                                             that a plan in priority group 2 may                      may submit a revised application. If the              701–706).
                                             apply would be to allow emergency                        plan sponsor submits a revised                        Payment of Special Financial
                                             filings beginning with PBGC’s                            application following a denial, the                   Assistance
                                             acceptance of applications from plans in                 revised application must address the
                                             priority group 1. PBGC has not made a                    reasons for denial stated in PBGC’s                      Section 4262(j) of ERISA provides that
                                             change to the emergency filing process,                  notification. PBGC is not requiring a                 SFA is the amount required for an
                                             but as discussed earlier, has advanced to                plan sponsor to refile the entire                     eligible plan to pay all benefits due from
                                             December 27, 2021, the earliest filing                   application. PBGC only needs the                      the date PBGC pays the SFA to the plan
                                             date for a plan projected to be insolvent                information that cures the reasons                    until the last day of the plan year ending
                                             within 1 year of the date the plan’s                     specified in the denial notice. However,              in 2051. However, because a plan
                                             application is filed. Accordingly,                       the plan sponsor may address other                    sponsor does not know when SFA will
                                             insolvent plans and any plan projected                   matters provided that the revised                     be paid at the time the sponsor prepares
                                             to be insolvent within 1 year of the date                application addresses the reasons for the             an application, the SFA amount
                                             the plan’s application is filed are also                 denial.                                               supported by an application and
                                             eligible to submit emergency                                The plan sponsor may withdraw an                   approved by PBGC will be the amount
                                             applications beginning December 27,                      application (in writing and in                        appropriate as of a date in the past. The
                                             2021. PBGC will continue to monitor                      accordance with the SFA instructions                  amount of SFA could be recomputed as
                                             application processing and will                          on PBGC’s website at www.pbgc.gov) at                 of the date of payment, yet the result
                                             continue to update its website to                        any time before PBGC denies or                        would still be an estimate and the
                                             advance filing dates as capacity permits.                approves the application. If an                       burden of recomputing the amount of
                                                                                                      application is withdrawn or denied, the               SFA would be significant. Instead,
                                             PBGC Action on Applications                                                                                    § 4262.12 provides that PBGC will pay
                                                                                                      plan sponsor may refile the application
                                                Section 4262(g) of ERISA provides                     as a revised application. As explained                a plan the amount demonstrated under
                                             that PBGC can either approve or deny                     earlier in the preamble, under section                the plan’s application, determined as of
                                             an application for SFA and establishes                   4262(f) of ERISA, and until the plan’s                the SFA measurement date, plus interest
                                             a 120-day review period during which                     application is approved, there is no                  on that amount for the time between the
                                             PBGC must act or an application is                       limit to the number of times that a plan              SFA measurement date and the date
                                             deemed approved. PBGC is given                           sponsor may file a revised application                PBGC sends payment (not the bank
                                             authority to manage the application                      (after the application is withdrawn or                settlement date).
                                             review process by issuing regulations or                 denied) as long as the last revised                      The final rule clarifies the interest rate
                                             guidance under section 4262(c) of                        application is filed by the statutory                 applied on the amount of SFA
                                             ERISA setting forth requirements for                     deadline of December 31, 2026.                        demonstrated under the plan’s
                                             SFA applications. Pursuant to that                          For any revised application, PBGC                  application from the time between the
                                             authority, § 4262.11 provides                            requires that the base data remain the                SFA measurement date and the date
                                             requirements for plan applications that                  same as required to be used in the plan’s             PBGC sends payment. For initial or
                                             are denied by PBGC or withdrawn by a                     initial application to guard against                  revised applications filed on or after the
                                             plan.                                                    multiple filings for purposes of                      effective date of the final rule, the
                                                As described under § 4262.11, PBGC                    changing this data. In the final rule,                interest rate applied is the SFA rate
                                             must act on an application within 120                    PBGC clarifies that the base data defined             under § 4262.4(e)(2). For applications
                                             days after the date an initial, revised, or              in § 4262.11(c) for an eligible plan                  filed under the interim final rule where
                                             supplemented application is properly                     includes the plan’s SFA measurement                   the plan has not filed an initial or
                                             and timely filed. If PBGC approves an                    date, participant census data, non-SFA                revised application on or after the
                                             application, it will notify the plan                     interest rate assumption, and SFA                     effective date of the final rule and there
                                             sponsor of the payment of SFA in                         interest rate assumption. Once PBGC                   has not been any previous payment of




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                                             accordance with § 4262.12.                               has accepted an initial application for               SFA, and where the plan’s application
                                                If PBGC denies an application, it will                processing, it is in the best interest of all         is not supplemented, the interest rate
                                             notify the plan sponsor in writing of the                parties to avoid the duplicative work                 applied is the non-SFA rate under
                                             reasons for the denial. An application                   and delays associated with changes to                 § 4262.4(e)(1).
                                             may be denied because it is incomplete                   the base data. Accordingly, if the                       For a supplemented application,
                                             (it does not accurately include the                      application is denied or the plan                     where the plan received a previous


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                                             40988                  Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             payment of SFA, the interest rate                        from other plan assets and may only be                flexibility to pursue greater asset returns
                                             applied is the SFA rate required under                   used to make benefit payments and pay                 and the opportunity to extend plan
                                             § 4262.4(e)(2) from the SFA                              plan expenses (but SFA may be used                    solvency on the other.
                                             measurement date to the payment date                     before other plan assets are used for                    PBGC received many comments on
                                             of the additional SFA. Interest is                       these purposes). In addition, SFA (and                § 4262.14 of the interim final rule and
                                             applied on the excess of the amount of                   earnings) must be invested by plans in                in response to its specific request for
                                             SFA determined under § 4262.4 of the                     investment grade bonds or other                       comment on the issue of appropriate
                                             final rule as of the SFA measurement                     investments as permitted by PBGC in                   risk level. Commenters generally
                                             date (demonstrated on the plan’s                         § 4262.14. These limitations on the use               favored allowing plans to have more
                                             supplemented application) over the SFA                   of SFA reflect the purpose of SFA. As                 flexibility in their options for investing
                                             amount determined under § 4262.4 of                      provided for under section 4262(j)(1) of              SFA funds. They stated that increased
                                             the interim final rule as of the SFA                     ERISA and in § 4262.4, SFA is the                     flexibility in investment decisions
                                             measurement date.                                        amount required for the plan to pay all               would not necessarily create an
                                                Section 4262.12(g) otherwise remains                  benefits due during the SFA coverage                  excessive level of risk to plans and
                                             unchanged in substance from the                          period taking into account all plan                   would enable plans to remain solvent
                                             interim final rule by providing that                     resources and obligations. SFA should                 longer.
                                             PBGC will pay SFA to a plan in a lump                    not be used in a manner that would                       Other commenters expressed the view
                                             sum or substantially so 26 as soon as                    divert SFA funds to other purposes—for                that the investment restrictions in the
                                             practicable upon approval of the plan’s                  instance, reducing sources of plan                    interim final rule do not allow plans to
                                             SFA application. As stated in the                        income, such as employer contributions                invest SFA funds in a diversified
                                             interim final rule, PBGC expects                         or withdrawal liability, or increasing                portfolio. They stated that not allowing
                                             payment to be made usually within 60                     plan obligations, such as to pay for                  for diversification will increase overall
                                             days, and no later than 90 days after the                additional future increases in benefits               risk to the plans. Commenters also
                                             plan’s SFA application is approved or                    (that are not exempted under § 4262.16).              stated that other investments, some low-
                                             deemed approved (and in any event not                                                                          risk, likely would yield higher returns
                                             later than September 30, 2030). Payment                  Permissible Investments                               and allow plans to remain solvent
                                             will be made in accordance with                             Section 4262(l) of ERISA requires that             longer. These commenters suggested
                                             payment instructions provided by the                     SFA received, and any earnings thereon,               various types of fixed income that have
                                             plan in its application. Payment will be                 may be used to make benefit payments                  higher yields.
                                             considered made when, in accordance                      and pay plan expenses, and such SFA                      As to which investments PBGC
                                             with the plan’s payment instructions,                    and earnings (‘‘SFA funds’’ or ‘‘amounts              should permit, many commenters
                                             PBGC no longer has ownership of the                      attributable to special financial                     suggested that PBGC allow plans to
                                             amount being paid. Any adjustment for                    assistance’’) must be held separately                 invest SFA funds in a manner that
                                             delay will be borne by PBGC only to the                  from other plan assets. Section 4262(l)               targets a specific rate of return. Some
                                             extent that it arises while PBGC has                     also requires that SFA funds be invested              commenters recommended permitting
                                             ownership of the funds.                                  in investment grade bonds or other                    plans to target a rate of return close to
                                                For a plan with an obligation to repay                investments permitted by PBGC. Given                  an interest rate used to calculate the
                                             financial assistance under section 4261                  the statutory constraints and the                     amount of SFA—e.g., the interest rate
                                             of ERISA, the process for that repayment                 likelihood that SFA funds will be paid                limit under section 4262(e)(3) of ERISA
                                             is described in § 4262.12(e).                            out before non-SFA funds, PBGC                        or approximately 5.3 percent based on
                                                Unlike assistance under section 4261,                 believes that SFA funds should be                     pension funding segment rates in
                                             section 4262(a)(2) of ERISA provides                     invested conservatively, in broad, liquid             December 2021.
                                             that payment of SFA is not a loan                        markets.                                                 Other commenters recommended that
                                             subject to repayment. However, under                        While the allowance under section                  PBGC allow specific investment
                                             § 4262.12(g)(1), SFA is subject to                       4262(l) for ‘‘other investments permitted             vehicles and approaches. Suggestions
                                             recalculation or adjustment to correct                   by the corporation’’ could provide some               included the allowance for various
                                             any clerical or arithmetic error. PBGC                   flexibility (and limited exposure to                  types of fixed income investments, real
                                             will, and plans must, make payments as                   other assets), in the interim final rule              estate and infrastructure, and risk
                                             needed to reflect any such changes in a                  PBGC did not allow for investments                    transfer buy-in contracts offered by life
                                             timely manner. SFA is also subject to                    with fundamentally different                          insurers.
                                             debt collection if PBGC determines that                  characteristics than investment grade                    Some commenters suggested that
                                             a payment for SFA to a plan exceeded                     bonds. Section 4262.14 of the interim                 PBGC set restrictions for plans
                                             the amount to which the plan was                         final rule permitted SFA funds to be                  individually. They said that PBGC
                                             entitled. Section 4262.12(g)(2) provides                 invested only in fixed income securities              should consider the unique
                                             the rules for payment of a debt owed to                  that are publicly traded, denominated in              circumstances of each plan and vary the
                                             the Federal Government.                                  U.S. dollars, and that must be                        permissible investment options based
                                                                                                      considered investment grade except for                on the assumptions applicable to the
                                             Restrictions on Special Financial
                                                                                                      a 5 percent allowance for a plan to hold              plan.
                                             Assistance
                                                                                                      investments that were considered                         Some commenters recommended that
                                               Section 4262(l) of ERISA places                        investment grade at the time of purchase              PBGC allow a percentage of SFA funds
                                             restrictions on the use of SFA. These                    but are no longer of that credit quality.             in investments other than fixed income.
                                             restrictions are described in § 4262.13 of               Recognizing that the interim final rule               Suggestions ranged from 10 percent to
                                             the regulation. SFA received, and any                    took a conservative approach for                      50 percent. Other commenters




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                                             earnings thereon, must be segregated                     permissible investments, PBGC                         recommended having no delineations
                                                                                                      specifically requested comment from                   between SFA and non-SFA assets,
                                               26 For example, if a plan’s SFA payment exceeds
                                                                                                      the public on how to arrive at an                     meaning that SFA funds could be
                                             the statutory limitation for a Federal wire of $10
                                             billion, the plan will receive multiple federal wire
                                                                                                      appropriate balance between                           invested without restriction and would
                                             payments that will equal the approved lump sum           predictability of returns and safety of               not need to be segregated from non-SFA
                                             amount.                                                  investments on the one hand, and the                  funds. One commenter suggested that


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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                                  40989

                                             removing all restrictions would                          fund distributions) and at least once in              230.144A (SEC Rule 144A under the
                                             eliminate the incentive to assume added                  any rolling period of 12 consecutive                  Securities Act of 1933). However, the
                                             risk in investing non-SFA funds.                         months. A purchase of RSA includes a                  final rule explicitly excludes such debt
                                             Another commenter said the restrictions                  fair market value exchange of                         securities issued by a foreign issuer.27
                                             are cumbersome and that, to develop an                   investments between a plan’s SFA and                  Permissible RSA also include high-yield
                                             appropriate investment strategy for a                    non-SFA segregated accounts. Portfolio                (‘‘junk’’) corporate bonds that were
                                             plan, a fiduciary must consider all of the               allocations also naturally get out of                 considered investment grade at the time
                                             plan’s assets.                                           balance due to cash flow and as prices                of purchase by the SFA segregated
                                                Finally, two commenters agreed with                   of investments fluctuate over time, so                account for the IGFI portfolio but are no
                                             the investment restrictions on SFA                       the percentage of SFA funds in RSA                    longer of that credit quality. This list of
                                             funds in the interim final rule. They                    could at times be greater than 33                     permissible RSA facilitates some
                                             stated that allowing additional                          percent. The rule provides clear                      diversification and eliminates the
                                             investment options would lead to an                      guidance to plans on when the                         potential for investment in aggressive or
                                             excessive level of risk-taking for                       percentage allocation in RSA is                       exotic investments that would clearly be
                                             taxpayer funds.                                          determined, and that it does not mean,                at odds with section 4262(l) of ERISA.
                                                PBGC stated in the interim final rule                 for example, no greater than 33 percent                  PBGC considered suggestions for
                                             that it was reluctant to allow for                       in RSA on each and every day.                         expanding permissible investments that
                                             investment vehicles with fundamentally                   Requiring the 33 percent cap on RSA to                are RSA to include real estate and
                                             different characteristics than investment                be met at purchase and at least one day               infrastructure. Inclusion of these assets
                                             grade bonds without public input.                        during any rolling 12-month period                    would allow for more diversified
                                             Although public comments reflected                       reflects acceptable deviation from the                portfolios of return-seeking SFA funds
                                             both sides of this issue, the comments                   basic restriction. While there may be                 with significant return potential, but
                                             largely suggested that the final rule                    some drift during a year above the 33                 most plans will achieve this
                                             should permit greater flexibility in                     percent, it would be very limited, and                diversification through their non-SFA
                                             investments with the objective of                        the burden of frequent rebalancing or                 assets. Also, the complexity of these
                                             extending potential solvency. After                      inopportune forced sales of assets is                 investment categories and the lack of
                                             considering the comments, and to                         minimized. A plan will be required to                 recognized passive index funds that
                                             support projected plan solvency through                  attest in the plan’s annual statement of              invest directly in real estate and
                                             the plan year ending in 2051 as                          compliance (under § 4262.16(i)) that the              infrastructure make these assets less
                                             provided in section 4262(j)(1) of ERISA,                 plan has met the allocation restriction               suitable as permissible investments.
                                             PBGC is making changes to § 4262.14 to                   on RSA at purchase and at least once in               Real estate investment trusts (REITs)
                                             allow for a wider range of investments                   every rolling period of 12 consecutive                that issue publicly traded equity are
                                             for SFA assets.                                          months beginning from the date the                    included within the RSA that are
                                                As provided in § 4262.14(i), the                      plan receives SFA.                                    allowed as permissible investments and
                                             changes to permissible investments in                       The final rule describes permissible               exposure to infrastructure is also
                                             this final rule are applicable to a plan                 RSA to include equity securities limited              available through permissible equity
                                             that applies or has applied for SFA.                     to common stock that is denominated in                investments.
                                             However, for a plan that received SFA                    U.S. dollars and publicly traded                         PBGC also considered commenters’
                                             under the terms of the interim final rule,               (registered with the U.S. Securities and              suggestions for expanding the types of
                                             the changes to permissible investments                   Exchange Commission (SEC) under the                   fixed income allowable as permissible
                                             under this final rule will not apply                     Securities Exchange Act of 1934); as                  IGFI to include various fixed income
                                             unless and until the plan files a                        well as in ‘‘permissible fund vehicles’’              securities that have higher yields. In
                                             supplemented application. Until that                     described in § 4262.14(g), which include              general, investments that do not share
                                             date, the provisions of § 4262.14 under                  mutual funds and exchange-traded                      the low risk and relatively high liquidity
                                             the interim final rule apply to the plan.                funds (ETFs) registered with the SEC                  characteristics of IGFI are not
                                                The changes in the final rule permit                  under the Investment Company Act of                   considered appropriate to meet the 67
                                             plans to invest a specified percentage—                  1940 (including ETFs organized as unit                percent floor for that type of investment.
                                             up to 33 percent—of their SFA funds in                   investment trusts), and collective trusts             Bonds that were rated investment grade
                                             return-seeking assets (RSA) as described                 that operate under a statutory                        at the time of purchase must be
                                             in § 4262.14(c) of the final rule. That                  exemption from registration.                          considered RSA if they no longer meet
                                             leaves 67 percent or more of SFA funds                   Permissible fund vehicles abide by an                 the criteria for being considered
                                             to be invested in investment grade fixed                 investment policy that limits investment              investment grade. As noted earlier, the
                                             income securities (IGFI). PBGC believes                  predominantly to publicly traded equity               final rule also allows for bonds resold in
                                             this ratio (67 percent IGFI to 33 percent                securities (and short-term U.S. Treasury              an offering pursuant to Rule 144A under
                                             RSA) appropriately considers the need                    securities, cash or cash equivalents, and             the Securities Act of 1933 to be
                                             to protect SFA assets to pay projected                   investments in money market funds).                   considered permissible RSA as long as
                                             benefits of the participants and                         The permissible RSA funds are intended                they meet the investment grade
                                             expenses of the plan. The 33 percent                     to include equity funds that track broad-             criterion.
                                             that may be invested in RSA as defined                   based U.S. indexes, such as the                          PBGC views investments such as
                                             in the final rule will enable plans to                   Standard & Poor’s 500 Index (S&P 500).                leveraged loans, collateralized loan
                                             grow SFA funds and increase the                             Permissible RSA also includes certain              obligations, convertible bonds, preferred
                                             potential to pay benefits through 2051                   debt instruments (e.g., bonds) that are               stock, and private credit as not
                                             while limiting the total risk exposure of                excluded from the definition of fixed




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                                             taxpayer-funded assistance.                              income securities under the final rule.                 27 The term ‘‘foreign issuer’’ is as defined in 17

                                                The final rule provides that the                      These include debt instruments that pay               CFR 240.3b–4(b) (Rule 3b–4(b) under the Securities
                                             permissible allocation in RSA of SFA                     a fixed amount or fixed rate of interest,             Exchange Act of 1934), i.e., any issuer which is a
                                                                                                                                                            foreign government, a national of any foreign
                                             funds is no more than 33 percent                         are denominated in U.S. dollars, are                  country or a corporation or other organization
                                             measured each time RSA are purchased                     investment grade, and have been resold                incorporated or organized under the laws of any
                                             (other than through the reinvestment of                  in an offering pursuant to 17 CFR                     foreign country.



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                                             40990                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             appropriate to include as IGFI because                   all the benefits for all participants, as             assets of the plan and invested
                                             they tend to trade in relatively small,                  suggested by another commenter.                       consistent with the requirements in
                                             illiquid markets that generally require                     The substance of the definition of                 § 4262.14. PBGC expects that if there is
                                             active management. Collateralized loan                   investment grade with respect to fixed                any investment policy or investment
                                             obligations, collateralized mortgage                     income securities in the interim final                management agreement governing such
                                             obligations and other collateralized debt                rule is unchanged in the final rule                   account, that it would be consistent
                                             obligations are complex instruments                      except for removing the words ‘‘publicly              with such investment requirements.
                                             and are only permitted as RSA to the                     traded’’ which is evident in the final                Custody and accounting of SFA funds
                                             extent they pay a fixed rate of interest.                rule requirement that fixed income                    should be clearly separated to properly
                                             Convertible bonds may have significant                   securities are sold in an offering                    track and account for SFA funds.
                                             liquidity risk.                                          registered under the Securities Act of
                                                                                                      1933. As described in the interim final               Reinstatement of Benefits Previously
                                                The final rule clarifies that                                                                               Suspended
                                             permissible IGFI securities considered                   rule preamble, investment grade means
                                             to meet the 67 percent floor must be a                   securities for which the issuer (or                      Section 4262(k) of ERISA imposes two
                                             bond or other debt instrument that pays                  obligor) has at least adequate capacity to            conditions on a plan that receives SFA
                                             a fixed amount or fixed rate of interest,                meet the financial commitments under                  and had previously suspended benefits
                                             denominated in U.S. dollars, sold in an                  the security for the projected life of the            in accordance with section 305(e)(9) or
                                             offering registered under the Securities                 asset or exposure. Adequate capacity                  4245(a) of ERISA.28 A plan must
                                             Act of 1933, and investment grade, and                   means that the risk of default by the                 reinstate any benefits that were
                                             includes such securities held in                         issuer (or obligor) is low and the full               suspended and must provide payments
                                             permissible fund vehicles (defined in                    and timely repayment of principal and                 to certain participants or beneficiaries to
                                             § 4262.14(g)). These IGFI funds must                     interest on the security is expected.                 make up past amounts of benefits
                                                                                                      These definitions are consistent with                 previously suspended.
                                             abide by an investment policy that
                                                                                                      other Federal agency regulations that                    As provided under section 4262(k) of
                                             limits investment primarily to securities
                                                                                                      refer to investment grade securities in               ERISA, § 4262.15 of the interim final
                                             that are denominated in U.S. dollars and                                                                       rule requires plans to reinstate these
                                             are investment grade. Permissible IGFI                   compliance with Section 939A of the
                                                                                                      Dodd Frank Act of 2010. Further, the                  previously suspended benefits as of the
                                             includes securities issued or guaranteed                                                                       month in which SFA is paid, and to
                                             by the U.S. government or its designated                 securities must be considered
                                                                                                      investment grade by a fiduciary who is,               provide make-up payments with respect
                                             agencies, such as U.S. Savings Bonds,                                                                          to previously suspended benefits to
                                             Treasury Bonds, Treasury Bills, and                      or seeks the advice of, an experienced
                                                                                                      investor.                                             participants or beneficiaries in pay
                                             GNMA (‘‘Ginnie Mae’’), and                                                                                     status as of the date that SFA is paid,
                                                                                                         Like the interim final rule, the final
                                             government-sponsored enterprise (GSE)-                                                                         in accordance with guidance issued by
                                                                                                      rule acknowledges that securities (IGFI
                                             issued debt securities (e.g., by ‘‘Fannie                                                                      the Secretary of the Treasury. Section
                                                                                                      or RSA) held in permissible fund
                                             Mae,’’ ‘‘Freddie Mac,’’ etc.), that are                  vehicles (ETFs, mutual funds, or                      4262(k) and § 4262.15 give the plan
                                             reported on line 1c(2) of the Form 5500                  collective trusts), or directly through a             sponsor flexibility to design payment of
                                             Schedule H. It also includes municipal                   portfolio of individual securities, often             make-up amounts as a single lump sum,
                                             bonds defined under the Securities Act                   are supplemented by derivatives that                  with no interest, within 3 months of the
                                             of 1933 that are investment grade.                       replicate exposure to physical bonds or               payment date of SFA, or in equal
                                             Dollar-denominated emerging market                       that implement hedging strategies to                  monthly installments over a period of 5
                                             bonds that are rated as investment grade                 protect against downside risk. The final              years, commencing within 3 months of
                                             are viewed as meeting the definition of                  rule permits investment in vehicles                   the payment date, with no installment
                                             IGFI.                                                    allowing for such strategies so long as               payment adjusted for interest. PBGC
                                                The final rule clarifies that cash and                any derivative or leveraging strategy                 notes that IRS has advised that a late
                                             cash equivalents required to be reported                 does not increase the risk of the                     make-up payment should be adjusted to
                                             on the Form 5500 Schedule H are                          investments beyond the risk in a similar              account for the delay, and that the
                                             permissible investments within the 67                    portfolio of physical securities (i.e., non-          correction method described in section
                                             percent floor. These are noninterest-                    derivative securities) with the same                  6.02(4)(d) of Revenue Procedure 2021–
                                             bearing cash on line 1a of Form 5500                     market value. Further, any notional                   30, 2021–31 IRB 172 (which sets forth
                                             Schedule H (total noninterest-bearing                    derivative exposure on permissible                    the current version of the IRS Employee
                                             cash which includes, among other                         investments that are held in separate                 Plans Compliance Resolution System
                                             things, cash on hand or cash in a                        accounts (i.e., not through permissible               (EPCRS)), with respect to correction of
                                             noninterest-bearing checking account),                   fund vehicles), must be supported by                  a late distribution from a defined benefit
                                             and interest-bearing cash equivalents on                 liquid assets that are cash or cash                   plan is a reasonable method for
                                             line 1c(1) of Form 5500 Schedule H (all                  equivalents denominated in U.S.                       computing the adjustment.
                                             assets that earn interest in a financial                 dollars. This will ensure that the plan or               Several commenters expressed views
                                             institution account such as interest-                    the investment manager will be able to                on the payment of make-up amounts to
                                             bearing checking accounts, passbook                      cover the derivative exposure with little             participants and beneficiaries in pay
                                             savings accounts, or in money market                     risk to SFA funds. This provision                     status. Some of those commenters
                                             accounts). Also permissible are                          remains substantively unchanged from
                                             investments in money market funds                        the interim final rule and applies to                   28 Section 4262(k) of ERISA includes rules that

                                             regulated pursuant to rule 2a-7 under                    investments in permissible IGFI and                   are parallel to section 432(k) of the Code. Under
                                             the Investment Company Act of 1940.                                                                            section 9704(d)(3) of ARP, the Secretary of the
                                                                                                      RSA.




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                                                                                                                                                            Treasury has interpretive jurisdiction over the rules
                                                PBGC determined not to include as                        Lastly, the final rule clarifies that the          for determining the benefit reinstatement and make-
                                             permissible investments insurance                        requirement in section 4262(l) of ERISA               up payments that must be made by a multiemployer
                                             contracts, such as risk transfer buy-in                  and § 4262.13 that SFA funds ‘‘shall be               plan receiving SFA, for purposes of ERISA as well
                                                                                                                                                            as the Code. Under section 4262(k), the Secretary
                                             contracts described by a commenter.                      segregated from other plan assets’’                   of Labor, in coordination with the Secretary of the
                                             There may be an inherent inequity with                   means that SFA funds must be held in                  Treasury, must ensure benefits are reinstated and
                                             this type of investment unless it covers                 an account separate from the remaining                previously suspended benefits are paid.



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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                         40991

                                             preferred that make-up payments be                       reinstatement instructions, in an                     mergers, which are discussed under the
                                             made in a lump sum, while others                         addendum to the SFA instructions,                     sections on Benefit Increases and
                                             expressed concerns about the tax                         available on PBGC’s website at                        Transfers or Mergers.
                                             implications of lump sums and                            www.pbgc.gov. PBGC received no
                                                                                                                                                            (a) Benefit Increases
                                             suggested that retirees and beneficiaries                comment on the requirement to provide
                                             should be able to choose the form for                    notice and did not make changes to                       Section 4262(m) provides authority to
                                             their make-up payments. In addition,                     § 4262.15(c) in the final rule.                       impose conditions relating to increases
                                             some commenters expressed concern                           Section 4262(k) of ERISA states that               in future accrual rates (prospective
                                             that, if a participant who had received                  ‘‘the Secretary, in coordination with the             benefit increases) and any retroactive
                                             reduced benefits because of a                            Secretary of the Treasury, shall ensure               benefit improvements (retrospective
                                             suspension dies before the SFA is paid                   that an eligible multiemployer plan that              benefit increases). Section 4262.16(b) of
                                             to the plan, then the participant’s estate               receives special financial assistance’’               the regulation imposes reasonable
                                             or beneficiary would not receive make-                   reinstates suspended benefits and                     conditions on a plan that receives SFA
                                             up payments for the benefits the                         provides make-up payments required by                 with respect to the types of benefits and
                                             participant lost because of suspension.                  the statute. The Department of Labor                  benefit increases described in section
                                                PBGC consulted with the IRS, which                    notes that it will need access to records,            4022A(b)(1) of ERISA, without regard to
                                             pursuant to section 432(k) of the Code                   and, if requested, copies of records to               the time the benefit or benefit increase
                                             and section 4262(k) of ERISA provided                    ensure that plans receiving SFA                       has been in effect. These conditions are
                                             guidance in Notice 2021–38 on the                        reinstate the suspended benefits of                   intended to prevent excessive increases
                                             make-up payments for benefits                            participants and beneficiaries as                     in benefits that would result in a
                                             previously suspended and the tax                         required by section 4262(k). Plan                     transfer of SFA to participants beyond
                                             treatment of those payments. With                        fiduciaries have an obligation under                  the payment of benefits at the level they
                                             respect to the form of payment, the IRS                  title I of ERISA to maintain complete                 had been promised as of the date of
                                             advised PBGC that while section                          and accurate records, including                       enactment of section 4262, without
                                             432(k)(2)(A)(ii) of the Code (which                      information the Department may need                   being overly restrictive. The condition
                                             governs the repayment obligation)                        to ensure the timely reinstatement of                 does not apply to the required
                                             expressly provides for the plan to                       suspended benefits and payment of                     reinstatement of benefits suspended
                                             determine whether make-up payments                       make-up payments under section                        under section 305(e)(9) or 4245(a) of
                                             are paid as a lump sum or in equal                       4262(k) of ERISA. The Department is                   ERISA or any restoration of benefits
                                             monthly installment payments over 5                      considering issuing guidance to address               under 26 CFR 1.432(e)(9)–1(e)(3).
                                             years, there is no requirement that the                  the records and information that plans                   The condition in § 4262.16(b)(1)
                                             same form of payment must be used for                    that receive SFA will need to maintain                restricts retrospective benefit increases
                                             all recipients. With respect to the                      and retain to comply with title I of                  (also referred to in this preamble as
                                             payment of make-up payments to                           ERISA.                                                retroactive benefit increases or
                                             deceased participants, the IRS advised                                                                         retroactive benefit improvements) by
                                                                                                      Conditions for Special Financial                      providing that a benefit or benefit
                                             PBGC that section 432(k)(2)(A)(ii) of the
                                                                                                      Assistance                                            increase must not be adopted during the
                                             Code requires that make-up payments
                                             be made to participants and                                 To ensure that SFA is used for the                 SFA coverage period (defined in
                                             beneficiaries who are in ‘‘pay status’’ on               purpose of paying benefits and the                    § 4262.2) if it is in whole or in part
                                             the effective date of the SFA. Because a                 expenses related to those benefit                     attributable to service accrued or other
                                             participant who died before the SFA is                   payments, PBGC used its authority                     events occurring before the adoption
                                             paid is not in pay status as of the                      under section 4262(m)(1) of ERISA, after              date of the amendment. PBGC said in
                                             effective date of the SFA, no make-up                    consulting with the Secretary of the                  the interim final rule that this condition
                                             payments are made for reductions that                    Treasury, to impose reasonable                        is needed because retroactive increases
                                             applied to that participant and,                         conditions on an eligible multiemployer               in benefits harm the funded position of
                                             accordingly, make-up payments are                        plan that receives SFA. These                         the plan without improving expected
                                             limited to the total amount of benefits                  conditions are described in § 4262.16 of              future plan income.
                                             that would have been paid to the                         the regulation and relate to increases in                Commenters recommended that PBGC
                                             beneficiary in the absence of the                        future accrual rates and retroactive                  provide some flexibility for retroactive
                                             suspension but that were not paid to the                 benefit improvements; allocation of plan              benefit increases if they are paid for by
                                             beneficiary because of the suspension.                   assets; reductions in employer                        additional contributions without
                                             However, if a participant dies after the                 contribution rates; diversion of                      endangering the plan’s ability to pay all
                                             SFA is paid to the plan but before all of                contributions to, and allocation of                   benefits. Some commenters said that
                                             the make-up payments are paid to the                     expenses to, other benefit plans; and                 PBGC was wrong in its assertion that
                                             participant, the unpaid portion of the                   withdrawal liability.                                 retroactive increases in benefits harm
                                             make-up payments must be made to the                        Under certain circumstances, a plan                the funded position of the plan, and that
                                             participant’s beneficiary.                               sponsor may request approval from                     the prohibition is likely to be
                                                Section 4262.15(c) of the interim final               PBGC for an exception from the                        counterproductive and reduce the
                                             rule requires the plan sponsor of a plan                 conditions relating to reductions in                  likelihood of plans achieving their long-
                                             with benefits that were suspended                        employer contribution rates, transfers or             term contribution assumptions. The
                                             under section 305(e)(9) or 4245(a) of                    mergers, and settlement of withdrawal                 prospect of benefit restorations, they
                                             ERISA to furnish a notice of                             liability. PBGC solicited public                      stated, could provide an incentive for
                                             reinstatement to participants and                        comment on whether there are other                    active participants to remain in their




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                                             beneficiaries whose benefits were                        circumstances relating to the conditions              plans and to seek increased contribution
                                             previously suspended and then                            described under § 4262.16 where PBGC                  rates. The commenters made various
                                             reinstated in accordance with section                    should consider providing approval for                suggestions, including permitting
                                             4262(k) of ERISA. The requirements for                   exceptions. Commenters suggested                      retroactive increases if the financial
                                             the notice, including content                            adding exceptions to conditions on                    condition of the plan improves,
                                             requirements, are in the notice of                       retrospective benefit increases and                   permitting de minimis increases,


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                                             40992                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             allowing an alternative pension                          during the SFA coverage period unless                 plan approaches insolvency as a
                                             arrangement for active workers, and                      the plan actuary certifies that employer              sensible and prudent approach to
                                             providing a procedure under which a                      contribution increases projected to be                investing over a gradually shortening
                                             plan may apply for an exception from                     sufficient to pay for the benefit increase            time horizon. Nonetheless, PBGC
                                             the condition restricting retrospective                  have been adopted or agreed to,                       wanted feedback from the public on
                                             benefit increases.                                       provided that these increased                         whether this condition is seen as
                                                PBGC considered whether to permit                     contributions were not included in the                preventing plans from achieving
                                             retroactive benefit increases, similar to                determination of SFA. This condition is               reasonable investment objectives.
                                             its condition on prospective benefit                     intended to guard against plans                       Accordingly, in the interim final rule,
                                             increases, but remains concerned that                    implementing significant benefit                      PBGC requested responses, with
                                             retroactive benefit increases are more                   increases that may accelerate plan                    supporting data, to the following
                                             expensive and riskier than prospective                   insolvencies and hasten an inability to               questions:
                                             benefit increases. A plan amendment                      pay plan-level benefits. However, plans                  (1) Will the requirement to maintain
                                             that increases benefits for prior service                still have the flexibility to offer active            1 year (or until the date the plan is
                                             has the effect of immediately increasing                 participants more attractive benefit                  projected to become insolvent, if earlier)
                                             the plan’s liability. Its cost is amortized              accruals when the plans are able to                   of benefit payments and administrative
                                             over a future period of years and can                    afford them.                                          expenses in investment grade fixed
                                             significantly add to the employers’                         One commenter requested                            income assets result in an allocation
                                             financial obligation with respect to                     clarification of the conditions on benefit            that is significantly different from the
                                             funding the plan. In this situation, if the              improvements stating that the interim                 allocation that the plan’s investment
                                             plan experiences actuarial losses in the                 final rule implies that prospective                   policy (after receiving SFA) would
                                             future, the plan’s funding costs could                   increases are possible during the SFA                 otherwise attain?
                                             become unsustainable. In contrast, the                   coverage period while the plan is                        (2) What are the advantages and
                                             cost of a prospective benefit increase,                  deemed to be in critical status. The                  disadvantages of PBGC not imposing
                                             such as an increase in the benefit                       commenter stated that section                         any conditions under section 4262(m) of
                                             accrual rate, generally is paid for in the               305(f)(1)(B) of ERISA includes a                      ERISA on asset allocation compared to
                                             year the service is rendered and can be                  requirement that no benefit increase is               the proposed condition requiring 1 year
                                             reduced or eliminated for future years if                permissible during a rehabilitation                   (or until the date the plan is projected
                                             the plan’s funding costs become                          period unless the plan is on track to                 to become insolvent, if earlier) of benefit
                                             excessive.                                               emerge from critical status by the end of             payments and administrative expenses
                                                In consideration of the comments,                     the rehabilitation period, a date that                in investment grade fixed income?
                                             however, PBGC is adding                                  may be decades earlier than the end of                   (3) Could an alternative condition, or
                                             § 4262.16(b)(3) to provide a process by                  the SFA coverage period. The                          modification of the condition under
                                             which a plan may request a                               conditions on benefit increases                       § 4262.16(c), better achieve the objective
                                             determination from PBGC for an                           provided under § 4262.16(b) are in                    of preventing excessive risk-taking by
                                             exception from the condition relating to                 addition to the limitations under section             plans while allowing plans to meet their
                                             retrospective benefit increases if future                305(f)(1)(B) of ERISA (and                            investment objectives?
                                             plan circumstances permit the plan to                    corresponding section 432(f)(1)(B) of the                Several commenters offered answers
                                             provide benefit increases without                        Code) applicable to plans in critical                 to these questions and provided other
                                             endangering the plan’s ability to pay all                status. PBGC is unable to opine on the                comments about allocation of plan
                                             benefits. This determination process                     requirements of section 305(f)(1)(B) of               assets. Two commenters generally
                                             will also apply to an exception from the                 ERISA as the funding rules are under                  agreed with the condition stating that it
                                             condition relating to prospective benefit                the Treasury Department’s interpretive                would impact allocations only for a
                                             increases (discussed below). Under the                   jurisdiction.                                         brief period of time and would not make
                                             new provision, beginning 10 years after                                                                        a significant difference in the overall
                                             the end of the plan year in which a plan                 (b) Allocation of Plan Assets                         investment allocation. Another
                                             receives payment of SFA, the plan may                       Section 4262.16(c) of the regulation               commenter recommended that PBGC
                                             apply for an exception by demonstrating                  imposes a condition on a plan that                    base any restrictions on individual
                                             to the satisfaction of PBGC that, taking                 receives SFA relating to the allocation of            plans’ net cash flow positions taking
                                             into account the value of any proposed                   plan assets. This condition requires that,            contributions into account, rather than
                                             benefit increase, the plan will avoid                    during the SFA coverage period, plan                  just benefit payments. PBGC considered
                                             insolvency. PBGC considers the 10-year                   assets, including SFA, must be invested               this comment but determined that
                                             period necessary for the plan to                         in permissible investments as described               factoring in contributions would
                                             demonstrate that its actuarial                           in § 4262.14 sufficient to pay for at least           introduce more administrative
                                             assumptions for a favorable long-term                    1 year (or until the date the plan is                 complexity. Other commenters
                                             outlook, such as steadily solid                          projected to become insolvent, if earlier)            disagreed with the condition stating that
                                             projections of year-by-year contribution                 of projected benefit payments and                     it would cause plans to become
                                             income, are being realized. Moreover,                    administrative expenses. Under                        insolvent earlier than they would
                                             the agency believes that limiting the use                § 4262.14 of the interim final rule,                  otherwise. After considering the
                                             of SFA initially to the protection of                    permissible investments were limited to               comments, PBGC decided to retain the
                                             accrued benefits is essential to sound                   fixed income.                                         condition in the final rule to prevent
                                             fiscal stewardship. The final rule                          PBGC set the condition in § 4262.16(c)             excessive risk taking. PBGC concluded
                                             specifies the information that a plan is                 under the authority provided to it in                 that the condition is unlikely to have a




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                                             required to file with its application for                sections 4262(l) and 4262(m) of ERISA,                significant impact on plans, except in
                                             an exception.                                            which PBGC interprets as intending to                 years when they are approaching
                                                The condition in § 4262.16(b)(2) of the               prevent excessive risk-taking by plans                insolvency.
                                             regulation restricts prospective benefit                 that receive SFA. PBGC views the                         Due to the expansion of permissible
                                             increases by providing that a benefit or                 gradual increase in the proportion of                 investments under § 4262.14 of the final
                                             benefit increase must not be adopted                     assets allocated to fixed income as a                 rule, as described earlier in the


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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                           40993

                                             preamble under the subheading                            to review a request for approval of a                 example, consistent with the
                                             Permissible Investments, PBGC has                        proposed contribution change, the final               requirement in § 4262.16(e)(1)(iv), by
                                             made conforming changes to                               rule does not make any changes to this                the end of the 5-year period, the
                                             § 4262.16(c) to reflect that the condition               condition.                                            bargaining parties could negotiate,
                                             is tied to fixed income. Accordingly, the                   Section 4262.16(e) of the regulation               without the approval of PBGC, a new
                                             final rule amends § 4262.16(c) to                        imposes reasonable conditions relating                contribution rate of $100 per CBU with
                                             provide that during the SFA coverage                     to allocation of contributions and                    an allocation of 30 percent to the
                                             period, plan assets, including SFA, must                 expenses between a plan that received                 pension plan and 70 percent to the
                                             be invested in permissible investments                   SFA and another employee benefit plan                 group health plan, which would
                                             that are fixed income as described in                    and other practices. The condition                    reinstate the $30 contribution rate for
                                             § 4262.14(d) sufficient to pay for at least              prohibits a decrease in the proportion of             the pension plan. The final rule
                                             1 year (or until the date the plan is                    income (contributions, investment                     specifies the information that a plan is
                                             projected to become insolvent, if earlier)               returns, etc.) or an increase in the                  required to file with its application for
                                             of projected benefit payments and                        proportion of expenses allocated to a                 an exception.
                                             administrative expenses. Additionally,                   plan that receives SFA. This prohibition                Except with respect to a merged plan,
                                             the investments used to meet this                        applies to written or oral agreements or              discussed in the section on Transfers or
                                             condition are also subject to the                        practices (other than a written                       Mergers, PBGC did not receive any
                                             limitations on derivatives and leverage                  agreement in existence on March 11,                   comments on this condition and did not
                                             described in § 4262.14(h).                               2021, to the extent not subsequently                  make any other changes to this
                                                                                                      amended or modified) under which                      condition in the final rule.
                                             (c) Contribution Decreases and                           income or expenses are divided or to be
                                             Allocating Contributions                                                                                       (d) Transfers or Mergers
                                                                                                      divided between a plan that receives
                                                Section 4262.16(d) imposes                            SFA and one or more other employee                       Section 4262.16(f) provides that
                                             reasonable conditions on a plan that                     benefit plans.                                        during the SFA coverage period, a plan
                                             receives SFA relating to contribution                       The Department of Labor brought to                 must not engage in a transfer of assets
                                             decreases to ensure that SFA is used for                 PBGC’s attention that there may be                    or liabilities (including a spinoff) or
                                             the exclusive purpose of paying benefits                 circumstances arising after March 11,                 merger except with PBGC’s approval.
                                             and reasonable administrative expenses                   2021, beyond the control of the plan                  Notwithstanding anything to the
                                             and is not effectively transferred to                    sponsor and the bargaining parties (e.g.,             contrary in PBGC’s regulation on
                                             contributing employers through                           health benefit cost increases due to                  mergers and transfers between
                                             decreased contribution obligations.                      legislative changes) that would justify a             multiemployer plans (29 CFR part
                                             During the SFA coverage period, the                      good faith reallocation of income or                  4231), the plans involved in the
                                             contributions required for each CBU                      expenses between employee benefit                     transaction must request approval from
                                             must not be less than, and the definition                plans. To address this narrow                         PBGC. A request for approval must
                                             of the CBUs must not be different from,                  circumstance, PBGC is adding an                       contain information that would be
                                             those set forth in collective bargaining                 exception to § 4262.16(e). Under the                  required to be submitted under
                                             agreements or plan documents in effect                   new provision, beginning 5 years after                § 4231.10 and the additional actuarial
                                             on March 11, 2021 (including agreed to                   the end of the plan year in which a plan              and financial information described in
                                             contribution rate increases through the                  receives payment of SFA, a plan may                   § 4262.16(f)(2). PBGC will approve a
                                             expiration date of the collective                        apply for an exception by demonstrating               proposed transfer or merger if: (1) the
                                             bargaining agreements). PBGC received                    to the satisfaction of PBGC that, taking              transaction complies with section
                                             one comment strongly supporting the                      into account the value of any proposed                4231(a)–(d) of ERISA, (2) the transfer or
                                             condition on contribution decreases,                     reallocation, the plan that received SFA              merger, or the larger transaction of
                                             stating that employers must continue to                  will avoid insolvency and that the                    which the transfer or merger is a part,
                                             pay for promised benefits under the                      reallocation is needed due to a                       does not unreasonably increase PBGC’s
                                             terms that they have agreed to in their                  significant increase in health benefit                risk of loss respecting any plan involved
                                             collective bargaining agreements.                        costs due to a change in Federal law.                 in the transaction, and (3) the transfer or
                                             Another commenter requested                              The reallocation would be required to                 merger is not reasonably expected to be
                                             clarification of the exception to this                   be no more than a 10 percent reduction                adverse to the overall interests of the
                                             condition and the threshold for PBGC                     in the amount of the contribution rate                participants and beneficiaries of any of
                                             approval. The regulation provides an                     negotiated on or before March 11, 2021,               the plans involved in the transaction.
                                             exception to this condition where the                    going to the pension plan and would be                An example of a larger transaction is
                                             plan sponsor determines that the risk of                 required to be temporary (no more than                where the trustees of a plan receiving
                                             loss to plan participants and                            5 years for a reallocation request relating           SFA arrange a transfer of assets and
                                             beneficiaries is lessened by the                         to any single change in Federal law and               liabilities from the plan and amend the
                                             reduction. PBGC clarifies in the final                   no more than 10 years cumulatively for                plan to substantially or completely end
                                             rule that the threshold for the                          all reallocation requests during the                  benefit accruals in connection with the
                                             requirement that PBGC (in addition to                    plan’s SFA coverage period). For                      plan’s active participants beginning to
                                             the plan sponsor) must determine that                    example, if the negotiated contribution               accrue benefits under another existing
                                             the changes lessen the risk of loss to                   rate was $60 per CBU, with 50 percent                 or newly formed plan. PBGC is unlikely
                                             participants and beneficiaries is where                  ($30) allocated to the pension plan and               to approve a transfer of assets and
                                             the proposed reduction affects over $10                  50 percent ($30) to the group health                  liabilities (that is not a merger) from a
                                             million of annual contributions and                      plan, the pension contribution rate                   plan that receives SFA to another plan.




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                                             over 10 percent of all employer                          could be reduced to $27 ($30 x 10                     If a transfer of assets and liabilities (that
                                             contributions. Except for this                           percent = $3) during the 5-year period.               is not a merger) is approved, the
                                             clarification in § 4262.16(d) and an                     This temporary reallocation would give                application of the restrictions and
                                             addition in paragraph (d)(2)(ix) that                    the bargaining parties time to negotiate              conditions to the transferee plan will be
                                             PBGC may request additional                              contributions for the health plan under               determined as a condition of the
                                             information that it determines it needs                  a collective bargaining agreement. For                approval. Also, generally, PBGC will not


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                                             40994                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             approve a transfer from a single-                        of withdrawal liability under                          assets of the SFA plans pre-merger must
                                             employer plan to a plan that receives                    § 4262.16(h). In addition, the merged                  be 25 percent or less of the total current
                                             SFA, nor a merger of a single-employer                   plan will be required to demonstrate                   value of assets of the merged plan,
                                             plan with a plan that receives SFA.                      continued compliance with the                          calculated using the current value of
                                                Several commenters requested                          restrictions and conditions by filing an               assets most recently required to be
                                             additional guidance on how the plan                      annual statement of compliance under                   reported by the plans before the merger
                                             that received SFA before the merger (the                 § 4262.16(i) through the last day of the               on line 2a of Form 5500 Schedule MB.30
                                             ‘‘SFA plan’’) should be administered                     last plan year ending in 2051 and will                 Second, the total current liability of the
                                             after the merger and whether the                         be subject to periodic compliance audits               SFA plans pre-merger must be 25
                                             restrictions and conditions that applied                 under § 4262.16(j). PBGC believes these                percent or less of the total current
                                             to the SFA plan also will apply to the                   are reasonable conditions for a plan that              liability of the merged plan, calculated
                                             merged plan. One commenter suggested                     receives SFA that should continue to                   using the current liability most recently
                                             that the final rule should include a                     apply to the merged plan and will not                  required to be reported by the plans
                                             mechanism for PBGC to waive                              create a significant impediment to plan                before the merger on line 2b(4) column
                                             restrictions and conditions on the                       mergers.                                               (2) of Form 5500 Schedule MB. Third,
                                             merger of an SFA plan into another plan                     PBGC agrees that some of the                        in the most recent certification of plan
                                             and that such waivers could be                           conditions under § 4262.16 either                      status for the non-SFA plan, the plan
                                             considered as part of PBGC’s review and                  should not apply or should be waived                   actuary must have certified that the plan
                                             approval of mergers.                                     for certain mergers so that the                        is not in endangered or critical status
                                                In response to the commenters, PBGC                   conditions do not unduly impede                        (including critical and declining status)
                                             is amending § 4262.16(f) to provide, as                  beneficial mergers.                                    and is not projected to be in critical
                                             part of the reasonable conditions                           After considering comments received,                status within 5 years from the date of
                                             relating to plan mergers, rules on the                   PBGC is clarifying in § 4262.16(f) that                the plan’s request for approval, and the
                                             restrictions and conditions that apply to                the conditions relating to prospective                 plan must not be a plan described in
                                             the merged plan, the conditions that do                  benefit increases under § 4262.16(b)(2),               section 432(b)(5) of the Code. If any of
                                             not apply to the merged plan, the                        allocation of plan assets under                        the plans involved in the merger engage
                                             conditions that may be waived if certain                 § 4262.16(c), and allocating expenses                  in multiple transactions in any 1-year
                                             criteria are met, and rules for the                      under § 4262.16(e) 29 will not continue                period, the transactions will be
                                             calculation of withdrawal liability. For                 to apply after the merger to the merged                considered in the aggregate.
                                             purposes of § 4262.16(f), a merged plan                  plan. A few commenters suggested that                     Some commenters suggested that if
                                             means a plan that is the result of the                   a large plan could not operate efficiently             PBGC retains certain conditions after
                                             merger of two or more multiemployer                      if the condition with respect to                       the merger, the conditions should apply
                                             plans. These rules on the applicable                     prospective benefit increases applied                  to participants in (and employers
                                             restrictions and conditions apply even                   and every merged plan was required to                  contributing to) the SFA plan part of the
                                             if, under the terms of the merger, the                   retain its own benefit design. Another                 merged plan only and not to all
                                             plan that did not receive SFA is                         commenter explained that there would                   participants in (and employers
                                             designated as the merged plan.                           be a reasonable expectation that two                   contributing to) the merged plan. PBGC
                                                Under section 4262(l) of ERISA and                    participants under the same plan                       is adopting this suggestion for
                                             § 4262.13(b), SFA received by a plan                     working with the same or similar                       conditions relating to retrospective
                                             and any earnings thereon must be                         contribution rates would have the same                 benefit increases under § 4262.16(b)(1),
                                             segregated from other plan assets, may                   or similar benefit accrual for service                 contribution decreases under
                                             be used by the plan only to make benefit                 after the merger. With respect to                      § 4262.16(d), allocating contributions
                                             payments and pay administrative                          allocating expenses, a commenter stated                and other income under § 4262.16(e),
                                             expenses, and must be invested in                        that an SFA plan that has merged is not                and withdrawal liability under
                                             investment grade bonds or other                          legally separate from the merged plan                  § 4262.16(g). The condition relating to
                                             permissible investments under                            for this purpose and should not be                     retrospective benefit increases, absent a
                                             § 4262.14. These statutory restrictions                  treated differently than any other                     waiver, will continue to apply to
                                             on the use of SFA and earnings continue                  portion of the merged plan.                            participants in the SFA plan
                                             to apply after the merger to the merged                     In addition, PBGC is amending                       immediately before the merger and not
                                             plan. Consistent with that requirement,                  § 4262.16(f) in the final rule to provide              to other participants after the merger in
                                             the Treasury Department and the IRS                      that, as part of a request for approval of             the merged plan. For the condition
                                             have informed PBGC that the                              a merger between plans where one or                    relating to contribution decreases,
                                             prohibition under section 432(k)(2)(D)(i)                more of the plans are SFA plans and one                absent a waiver, the condition will
                                             of the Code on taking SFA assets into                    or more of the plans are non-SFA plans,                apply only to the employers who had an
                                             account in determining minimum                           PBGC will provide a waiver of the                      obligation to contribute to the SFA plan
                                             required contributions under section                     conditions relating to retroactive benefit             immediately before the merger. For the
                                             431 of the Code continues to apply after                 increases under § 4262.16(b)(1),                       condition relating to allocating
                                             the merger to the merged plan.                           contribution decreases under                           contributions and other income, absent
                                                PBGC has determined that some of the                  § 4262.16(d), and allocating                           a waiver, the condition will apply to
                                             regulatory conditions under § 4262.16                    contributions and other income under                   contributions or income relative to the
                                             will continue to apply, as conditions of                 § 4262.16(e) if three requirements are                 SFA plan before the date of the merger.
                                             the merger, to the merged plan. If the                   met. First, the total current value of                 With respect to the conditions relating
                                             merged plan engages in a future transfer




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                                                                                                                                                             to the calculation of withdrawal liability
                                             or merger, the plan would be required                      29 Section 4262.16(e) prohibits a decrease in the
                                                                                                                                                             under § 4262.16(g) (described in the
                                             to obtain PBGC’s approval of the                         proportion of income (contributions, investment        next section of the preamble), PBGC is
                                             transaction under § 4262.16(f). The                      returns, etc.) or an increase in the proportion of
                                                                                                      expenses allocated to a plan that receives SFA.        limiting the conditions to the
                                             merged plan also would be subject to                     Unless, waived, the prohibition on a decrease in the
                                             the condition on withdrawal liability                    proportion of income will continue to apply to the       30 All line references in this section are to the

                                             requiring approval of certain settlements                merged plan.                                           2021 Form 5500 and schedules.



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                                                                    Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                            40995

                                             determination of unfunded vested                          PBGC agrees with a comment that this                  other employers who were never
                                             benefits that arose under the SFA plan                    approach avoids the use of SFA assets                 contributing employers to the SFA plan.
                                             before the date of the merger for                         to reduce the withdrawal liability of a                 The following table summarizes the
                                             purposes of allocating unfunded vested                    withdrawing employer without unduly                   application of the restrictions and
                                             benefits under subpart D of part 4211                     increasing the withdrawal liability of                conditions in the event of a merger:
                                             and determining withdrawal liability.

                                                                                    APPLICATION OF RESTRICTIONS AND CONDITIONS AFTER A MERGER
                                                                                    Does not apply to merged
                                                Applies to merged plan                                                                                         Other
                                                                                              plan

                                             • Restrictions                        • Prospective benefit in-        • Retrospective benefit increase (§ 4262.16(b)(1)): plan may apply for a waiver,
                                               (§ 4262.13(b)).                       crease (§ 4262.16(b)(2)).        and, absent a waiver, continues to apply to participants in the SFA plan.
                                             • Transfer or merger                  • Allocation of plan assets      • Contribution decreases (§ 4262.16(d)): plan may apply for a waiver, and, absent a
                                               (§ 4262.16(f)).                       (§ 4262.16(c)).                  waiver, continues to apply to employers who had an obligation to contribute to
                                             • Withdrawal liability settle-        • Allocating expenses              the SFA plan.
                                               ment (§ 4262.16(h)).                  (§ 4262.16(e)).                • Allocating contributions and other income (§ 4262.16(e)): plan may apply for a
                                             • Annual compliance state-                                               waiver, and, absent a waiver, continues to apply to contributions or income rel-
                                               ment (§ 4262.16(i)).                                                   ative to the SFA plan before the date of the merger.
                                             • Audit (§ 4262.16(j)) ..........                                      • Withdrawal liability calculation (§ 4262.16(g)): no waiver; conditions required to be
                                                                                                                      applied to determine unfunded vested benefits (UVBs) that arose under the SFA
                                                                                                                      plan before the date of the merger for purposes of allocating UVBs under subpart
                                                                                                                      D of part 4211 and determining withdrawal liability.



                                               Commenters asked for clarification of                   share of the plan’s unfunded vested                   to avoid plans prolonging the
                                             whether the merged plan’s certification                   benefits (the value of nonforfeitable                 application of the condition were to
                                             of plan status will be affected by                        benefits that exceeds the value of plan               require that SFA funds be used first and
                                             merging with a plan that receives SFA.                    assets) as of the end of the plan year                to eliminate the reference to earnings on
                                             Under section 4262(m)(4) of ERISA,                        before the employer’s withdrawal, or as               SFA. Other commenters agreed that
                                             section 432(b)(7) of the Code, and                        otherwise provided under section 4211,                requiring the use of the mass
                                             § 4262.17(c), an eligible multiemployer                   and (2) annual withdrawal liability                   withdrawal interest assumptions is a
                                             plan that receives SFA is deemed to be                    payment and amortization period under                 reasonable condition and recommended
                                             in critical status within the meaning of                  section 4219.                                         that PBGC extend the requirement
                                             section 305(b)(2) of ERISA until the last                                                                       through 2051.
                                                                                                       Interest Assumptions for Determining                     PBGC is retaining the ‘‘later of’’
                                             day of the last plan year ending in 2051.
                                                                                                       UVBs                                                  structure for the period to which the
                                             The rules for critical status plans under
                                             section 305 of ERISA are under the                           Under § 4262.16(g) of the interim final            condition applies. However, in
                                             jurisdiction of the Treasury Department.                  rule, for withdrawals that occur after the            consideration of comments suggesting
                                               Commenters also asked for                               plan year in which the plan receives                  the condition apply for a fixed period to
                                             clarification of whether a merged plan                    SFA, the interest assumptions used in                 prevent plans from holding a de
                                             would be able to apply for a suspension                   determining unfunded vested benefits                  minimis amount of SFA to prolong
                                             of benefits under MPRA in the future.                     (UVBs) for purposes of determining                    application of the condition, PBGC is
                                             Under section 432(k)(2)(E) of the Code,                   withdrawal liability must be the                      modifying the period so that it ends
                                             section 4262(m)(6) of ERISA, and                          ‘‘Interest Rates Used To Value Benefits’’             after the later of 10 years or the
                                             § 4262.17(e) an eligible multiemployer                    in appendix B to 29 CFR part 4044. The                projected life of the SFA assets.
                                             plan that receives SFA is not eligible to                 interim final rule provided that the                  Specifically, the prescribed interest
                                             apply for a new suspension of benefits                    prescribed interest assumptions must be               assumptions must be used until the later
                                             under section 305(e)(9) of ERISA. This                    used until the later of 10 years after the            of: (1) 10 years after the end of the plan
                                             statutory condition would apply to the                    end of the plan year in which the plan                year in which the plan first receives
                                             SFA plan. Eligibility of a merged plan                    receives payment of SFA or the last day               payment of SFA, and (2) the last day of
                                             to apply for a suspension of benefits is                  of the plan year in which the plan no                 the plan year by which the plan projects
                                             under the jurisdiction of the Treasury                    longer holds SFA or any earnings                      that it will exhaust any SFA assets as
                                             Department.                                               thereon in a segregated account. The                  determined under § 4262.4(b) (under
                                                                                                       minimum 10-year period is similar to                  which benefits and expenses are
                                             (e) Withdrawal Liability                                  the time period over which special                    assumed to be paid exclusively from
                                                Under sections 4201 through 4225 of                    statutory withdrawal liability rules                  SFA assets until exhausted), extended
                                             ERISA, when a contributing employer                       apply to plans that suspend benefits or               by the number of years, if any, that the
                                             withdraws from an underfunded                             are partitioned under MPRA.                           first plan year of payment is after the
                                             multiemployer plan, the plan sponsor                         Several commenters recommended                     plan year that includes the SFA
                                             assesses withdrawal liability against the                 changes related to the condition                      measurement date. For example, if a
                                             employer. Withdrawal liability                            requiring plans to use the prescribed                 calendar year plan’s SFA measurement
                                             represents a withdrawing employer’s                       interest assumptions. Two commenters                  date is in 2022, the plan receives




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                                             proportionate share of the plan’s                         suggested that PBGC provide only a                    payment of SFA in 2023, and had
                                             unfunded benefit obligations and is an                    fixed period for the requirement to use               projected that it will exhaust SFA assets
                                             important source of income for the plan.                  mass withdrawal interest assumptions                  in 2051, the exhaustion year for the plan
                                             To assess withdrawal liability, the plan                  to eliminate a plan’s ability to prolong              to use the prescribed interest
                                             sponsor must determine the                                application of the condition by keeping               assumptions would be 2052 (29 years +
                                             withdrawing employer’s (1) allocable                      a small SFA balance. Other suggestions                1 year). Under this example, employers


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                                             withdrawing before 2054 would have                       plan assets in calculating withdrawal                 Treasury, to ‘‘impose . . . reasonable
                                             UVBs determined using the prescribed                     liability, either instead of or in addition           conditions on an eligible multiemployer
                                             interest rate under the final rule.                      to requiring the use of mass withdrawal               plan that receives special financial
                                             Eliminating a plan’s ability to prolong                  interest assumptions. One commenter                   assistance relating to . . . withdrawal
                                             application of the condition requiring                   suggested that an administratively                    liability.’’ To ensure that SFA is not
                                             use of mass withdrawal interest                          simple approach would be to require                   used to subsidize employer withdrawals
                                             assumptions beyond the specified                         plans to exclude the remaining amount                 rather than to make benefit payments
                                             period does not preclude the use of                      of SFA from each year’s determination                 and pay plan expenses, a condition
                                             settlement rates thereafter to determine                 of UVBs. Another stated that the                      relating to the recognition of SFA as an
                                             withdrawal liability, as otherwise                       condition under the interim final rule to             asset in calculating UVBs is needed in
                                             permitted by ERISA.                                      use mass withdrawal interest                          addition to the condition prescribing the
                                                In addition, the final rule clarifies that            assumptions would not ensure for all                  interest assumptions to be used in
                                             the beginning of the 10-year period is                   plans that SFA is preserved for payment               valuing plan liabilities.
                                             the last day of the plan year in which                   of benefits and expenses. The                            After consideration of comments and
                                             the plan receives payment of SFA,                        commenter recommended that PBGC                       analysis of the effectiveness of the
                                             renumbers § 4262.16(g) as                                impose three additional withdrawal                    interim final rule’s withdrawal liability
                                             § 4262.16(g)(1), and clarifies that the                  liability conditions: that SFA be                     condition, PBGC declined to adopt the
                                             condition in § 4262.16(g)(1) for                         disregarded in calculating withdrawal                 approach of fully disregarding SFA that
                                             determining the value of UVBs also                       liability, that conservative assumptions              was discussed in the interim final rule
                                             applies for determining the amortization                 be used for a 5-year period after SFA is              and suggested by some commenters.
                                             schedule under section 4219(c)(1)(A) of                  exhausted, and that, for a 15-year                    Instead, PBGC has concluded that a
                                             ERISA. Section 4219(c)(1)(A)(ii)                         period, withdrawal liability be no less               better approach to addressing
                                             provides that ‘‘[t]he determination of the               than it would have been as of the date                commenters’ concerns would be to
                                             amortization period described in clause                  a plan applied for SFA. Most of the                   phase in the recognition of SFA for
                                             [4219(c)(1)(A)](i) shall be based on the                 commenters were concerned that not                    purposes of withdrawal liability in a
                                             assumptions used for the most recent                     including a condition to exclude SFA                  manner that is a more accurate and
                                             actuarial valuation for the plan.’’ What                 from plan assets for purposes of                      reasonable reflection of the period over
                                             is meant by ‘‘the most recent actuarial                  calculating withdrawal liability will                 which SFA is likely to be spent down
                                             valuation of the plan’’ for amortization                 incentivize employers to withdraw after               by plans. Thus, under § 4262.16(g)(2) of
                                             purposes is unclear. One reading would                   the plan receives SFA.                                the final rule, pursuant to PBGC’s
                                             require that the amortization period be                     As discussed in the preamble of the                authority under section 4262(m) of
                                             determined using the interest rate used                  interim final rule, PBGC considered a                 ERISA, PBGC imposes an additional
                                             for funding purposes, but that could                     condition requiring exclusion of SFA                  condition relating to withdrawal
                                             have the odd result of, e.g., valuing                    from plan assets in calculating                       liability on a plan that receives SFA.
                                             UVBs for withdrawal liability purposes                   withdrawal liability, but did not include             This condition requires plans to
                                             as of 2020 calculated in 2023 using the                  such a condition in the interim final                 recognize over time the amount of SFA
                                             interest rate used for the 2022 valuation                rule. However, PBGC has given further                 received by the plan for the purpose of
                                             as the ‘‘most recent’’ assumption used                   consideration to the impact of SFA on                 determining the plan’s UVBs for
                                             for the actuarial valuation. PBGC                        an employer’s incentive to withdraw                   calculating withdrawal liability.
                                             believes that a better reading would                     based on commenters’ concerns about                      Section 4262.16(g)(2) provides the
                                             require that the amortization period be                  the effectiveness of the prescribed-                  procedures for determining the amount
                                             determined using the same assumptions                    interest-assumptions condition alone in               of SFA that is phased in for withdrawal
                                             that were used in the valuation of UVBs                  disincentivizing employer withdrawals                 liability purposes each year over the
                                             for withdrawal liability purposes.                       after a plan’s receipt of SFA. Since                  projected life of the SFA assets
                                             Providing in the final rule that the                     publication of the interim final rule,                (determined as if SFA assets, i.e., SFA
                                             interest assumption required to be used                  rising interest rates, and corresponding              and earnings thereon, are exhausted
                                             for withdrawal liability purposes in                     increases in the prescribed interest                  before other plan assets are used to pay
                                             § 4262.16(g)(1) is also to be used for                   assumptions, have further highlighted                 benefits and expenses). The applicable
                                             amortization purposes, clarifies for plan                the limitation of the effectiveness of the            phase-in period is from the first plan
                                             actuaries what interest rate to use in                   condition in the interim final rule to                year in which the plan receives payment
                                             determining the amortization period                      achieve its purpose.                                  of SFA through the end of the plan year
                                             when this condition applies.                                If a plan immediately recognizes the               by which, according to the plan’s
                                                The final rule also clarifies that a plan             entire amount of SFA as a plan asset                  projections, it will exhaust any SFA
                                             cannot use SFA as a receivable as of the                 upon receipt, the plan’s UVBs for                     assets. For a plan that received payment
                                             end of the plan year before the plan year                purposes of determining withdrawal                    of SFA under the terms of the interim
                                             in which the plan receives SFA.                          liability—and thus employers                          final rule and files a supplemented
                                                                                                      prospective withdrawal liability—will                 application, the first plan year of
                                             Phased Recognition of SFA Assets                         likely decline. Section 4262(l) of ERISA,             payment is the year in which it received
                                                PBGC received a number of comment                     which Congress titled ‘‘Restrictions on               SFA under the terms of the interim final
                                             letters that discussed conditioning SFA                  the Use of Special Financial                          rule. Where a plan’s first plan year of
                                             on a disregard of SFA in a plan’s                        Assistance,’’ and which sets forth such               payment is not the plan year that
                                             withdrawal liability calculations. While                 restrictions, requires that ‘‘[SFA]                   includes the plan’s SFA measurement
                                             one comment letter expressed                             received under this section and any                   date, the exhaustion year is deferred by




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                                             opposition to excluding any amount of                    earnings thereon may be used by an                    the number of years the first plan year
                                             SFA from the calculation, other                          eligible multiemployer plan to make                   of payment is after the plan year that
                                             commenters requested that PBGC                           benefit payments and pay plan                         includes the SFA measurement date.
                                             exercise its authority under section                     expenses.’’ Section 4262(m)(1) also                      To calculate the amount of SFA assets
                                             4262(m) of ERISA to impose a condition                   expressly grants PBGC authority, in                   excluded for each plan year during the
                                             requiring plans to exclude SFA from                      consultation with the Secretary of the                phase-in period, the plan must take the


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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                         40997

                                             total amount of SFA paid to the plan                     effect of the condition will lessen over              Settlement of Withdrawal Liability
                                             and multiply that by a fraction, the                     time.                                                    An additional condition related to
                                             numerator of which is the number of                         The phased recognition of SFA as a                 withdrawal liability is under
                                             years remaining in the phase-in period                   plan asset is consistent with ERISA, the              § 4262.16(h) and requires that any
                                             as of the date that the UVBs are being                   Code, and actuarial practice. It is                   settlement of withdrawal liability
                                             determined, and the denominator is the                   conceptually similar to the smoothed                  during the SFA coverage period must be
                                             total number of years in the phase-in                    recognition of plan assets for purposes               made only with PBGC approval if the
                                             period. For a plan that receives payment                 of calculating a plan’s minimum                       present value of the liability settled is
                                             of SFA under the interim final rule and                  funding requirements. The Treasury                    greater than $50 million (calculated as
                                             receives a supplemental payment under                    regulation at 26 CFR 1.412(c)(2)–1(b)                 described under § 4262.16(h)(1)).
                                             the final rule, the total amount (payment                permits multiemployer plans to                        Approval ensures that any negotiated
                                             under the interim final rule and                         ‘‘smooth’’ plan asset values when                     settlements of material size are in the
                                             supplemental payment) will be                            determining minimum funding by                        best interests of the participants in the
                                             included in the phased recognition of                    averaging the value of plan assets over               plan and do not create an unreasonable
                                             SFA assets in determining UVBs for                       up to five years rather than using the                risk of loss to PBGC. One commenter
                                             withdrawals occurring in plan years                      current fair market value of plan assets.             stated that requiring approval of
                                             after the plan year the supplemental                     It is also roughly comparable to the                  transactions over $50 million is a
                                             payment is received by the plan. For                     gradual recognition of SFA in                         reasonable application of PBGC’s
                                             withdrawals that occur after the date the                determining minimum funding. Section                  oversight authority. PBGC did not make
                                             supplemented application is filed and                    432(k)(2)(D) of the Code requires that                any changes to this provision in the
                                             before the plan year after the plan year                 SFA be disregarded in determining                     final rule.
                                             in which the supplemental payment is                     required contributions. IRS Notice
                                             made, only the payment of SFA under                      2021–38 provides that SFA is                          (f) Reporting and Audit
                                             the interim final rule is included in the                recognized in the plan’s funding                         In order to monitor compliance with
                                             phased recognition of SFA assets.                        standard account over time, in that any               the conditions imposed on plans that
                                                As provided in § 4262.16(g)(2)(xv),                   benefit or plan expense paid from the                 receive SFA, the final rule requires
                                             this condition is applicable to a plan in                SFA account generates an actuarial gain               under § 4262.16(i) that plan sponsors
                                             determining withdrawal liability for                     that is amortized over 15 years.                      file with PBGC an annual statement of
                                             withdrawals occurring after the plan                        In listening sessions with interested              compliance with the terms and
                                             year in which the plan receives payment                  parties before the issuance of the                    conditions of SFA for plan years
                                             of SFA. However, for a plan that                         interim final rule, some interested                   through the last plan year ending in
                                             received SFA under the terms of the                      parties representing employers argued                 2051. Under the interim final rule, each
                                             interim final rule, this condition will                  that PBGC does not have authority to                  annual statement of compliance was
                                             not apply unless the plan files a                        require that SFA be disregarded for                   required to be filed with PBGC no later
                                             supplemented application under the                       purposes of calculating withdrawal                    than 90 days after the end of the plan
                                             final rule. If the plan files a                          liability and that, if Congress had                   year and in accordance with the
                                             supplemented application, this                           intended for SFA to be disregarded, it                statement of compliance instructions on
                                             condition applies to the plan in                         would have expressly required that it be              PBGC’s website at www.pbgc.gov.
                                             determining withdrawal liability for                     disregarded. For example, they cited                  Except for questions related to mergers
                                             withdrawals occurring on or after the                    provisions in MPRA for special                        discussed earlier, PBGC did not receive
                                             date the plan files the supplemented                     withdrawal liability disregard rules in               comments on the statement of
                                             application. A plan may choose to file                   section 4233(d)(3) of ERISA regarding                 compliance.
                                             a supplemented application if it has                     partitions and in section 305(g)(1)                      Under the final rule, PBGC clarifies
                                             already received SFA.                                    regarding benefit suspensions. PBGC                   that the first annual statement of
                                                Three examples are included in                        does not agree that the absence of a                  compliance must be filed with PBGC no
                                             § 4262.16(g)(2) to illustrate the                        statutory requirement that SFA be                     later than 90 days after the end of the
                                             procedures for the phased recognition of                 disregarded in determining withdrawal                 plan year in which a plan received
                                             SFA assets.                                              liability proves Congressional intent                 payment of SFA and in accordance with
                                                Requiring phased recognition of SFA                   that SFA be immediately recognized in                 the statement of compliance
                                             as a plan asset is a reasonable condition                its entirety as a plan asset. Here, in                instructions on PBGC’s website at
                                             because SFA does not result from                         contrast to MPRA, Congress chose to                   www.pbgc.gov. However, based on
                                             employer contributions, but is a transfer                expressly delegate authority in section               PBGC’s experience in processing
                                             of taxpayer funds to eligible financially                4262(m) of ERISA to PBGC to impose                    applications, the final rule provides that
                                             distressed plans for the purpose of                      reasonable conditions on a plan that                  a plan would defer reporting to the next
                                             enabling these plans to pay benefits and                 receives SFA relating to withdrawal                   plan year if six months or fewer remain
                                             expenses. That purpose is reflected in                   liability. This grant by Congress                     in its plan year after the month in which
                                             sections 4262(j)(1) and 4262(l) of ERISA.                expands PBGC’s authority beyond its                   the plan first received SFA. The first
                                             Without the condition, the payment of                    existing authority under section                      statement of compliance in this case
                                             SFA could instead result in indirect                     4002(b)(3) and sections 4201 through                  must cover the period from the date the
                                             transfers of SFA to withdrawing                          4225 of ERISA to regulate withdrawal                  plan received payment of SFA through
                                             employers from plans by reducing their                   liability and authorizes PBGC to provide              the last day of the plan year following
                                             withdrawal liability. For a majority of                  rules that define how SFA should be                   the plan year in which the plan received




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                                             plans that receive SFA, all SFA will be                  treated in the calculation of withdrawal              payment of SFA. The statement must be
                                             recognized as a plan asset for                           liability. The final rule reflects the                filed no later than 90 days after the end
                                             withdrawal liability purposes within 10                  authority Congress delegated to PBGC to               of such plan year. For example, if a
                                             years, and because additional SFA will                   oversee the SFA program and ensure                    calendar year plan received payment of
                                             be incorporated into the determination                   that SFA is preserved for the payment                 SFA on November 15, 2023, the plan’s
                                             of withdrawal liability each year, the                   of benefits and expenses.                             first statement of compliance would be


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                                             40998                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             due by March 31, 2025, covering the                      participants and beneficiaries under                  for issuing rules, applying for
                                             period from November 15, 2023,                           section 305(e)(9).                                    assistance, and processing applications,
                                             through December 31, 2024. This would                       Finally, § 4262.17(g) includes a                   particularly for prioritized plans,
                                             be less administratively burdensome to                   severability provision that provides that             expressed a clear urgency to get
                                             the plan and provide a more meaningful                   if any of the provisions of this final rule           appropriate assistance to eligible plans
                                             statement of compliance after receipt of                 are found to be invalid or stayed                     as quickly as possible.
                                             SFA.                                                     pending further agency action, the                       In light of the compressed timeline,
                                               As described in the interim final rule,                remaining portions of the rule would                  PBGC issued an interim final rule
                                             PBGC may conduct periodic audits of                      remain operative. Although PBGC                       without prior notice and comment. The
                                             plans that have received SFA to review                   received no comments that directly                    Administrative Procedure Act provides
                                             compliance with the terms and                            addressed severability, in the final rule,            at 5 U.S.C. 553(b) that notice and
                                             conditions of the SFA program.                           PBGC makes a non-substantive                          comment requirements do not apply
                                                                                                      clarifying change to delete the phrase                when an agency, for good cause, finds
                                             Other Provisions                                                                                               that they are impracticable,
                                                                                                      ‘‘and will not affect the remainder
                                                Section 4262 of ERISA contains other                  thereof’’ from the provision in the                   unnecessary, or contrary to the public
                                             provisions that apply to SFA and plans                   interim final rule. PBGC does not intend              interest. An exception is also provided
                                             receiving SFA. These provisions are                      the severability provision to be read to              at 5 U.S.C. 553(d)(3) to the requirement
                                             enumerated under § 4262.17 of the                        suggest that provisions of the regulation             of a 30-day delay before the effective
                                             regulation:                                              are only severable if the remainder of                date of a rule ‘‘for good cause found and
                                                • SFA is not capped by the guarantee                  the rule is not affected by the severed               published with the rule.’’ Section 9704
                                             under section 4022A of ERISA.                            provision. To the contrary, PBGC                      of the American Rescue Plan (ARP) Act
                                                • A plan receiving SFA is required to                 intends the regulation to operate either              of 2021 set up a ‘‘Special Financial
                                             continue to pay premiums due under                       with or without the severed provision.                Assistance Program for Financially
                                             section 4007 of ERISA for participants                   The severability clause applies in the                Troubled Multiemployer Plans.’’ PBGC
                                             and beneficiaries in the plan.                           same way whether a provision is                       promulgated an interim final rule
                                                • A plan that receives SFA is deemed                                                                        effective on publication, with a request
                                                                                                      invalidated ‘‘facially’’ or ‘‘as applied.’’
                                             to be in critical status within the                                                                            for public comment, to allow for
                                                                                                      The modified severability clause reads
                                             meaning of section 305(b)(2) of ERISA                                                                          immediate implementation of this
                                                                                                      as follows: ‘‘If any provision in this part
                                             until the last plan year ending in 2051.                                                                       program and because of the need to get
                                                • A plan that receives SFA and                        is held to be invalid or unenforceable by
                                                                                                      its terms, or as applied to any person or             financial assistance to eligible plans as
                                             subsequently becomes insolvent under                                                                           quickly as possible. Any delay in the
                                             section 4245 of ERISA will be subject to                 circumstance, or stayed pending further
                                                                                                      agency action, the provision will be                  effective date of the interim final rule
                                             the rules and guarantee for insolvent                                                                          would have been contrary to the public
                                             plans in effect when the plan becomes                    construed so as to continue to give the
                                                                                                      maximum effect to the provision                       interest. See the ‘‘Compliance With
                                             insolvent.                                                                                                     Rulemaking Guidelines’’ section of the
                                                • A plan that receives SFA is not                     permitted by law, unless such holding
                                                                                                      will be one of utter invalidity or                    July 12, 2021, interim final rule for the
                                             eligible to apply for a suspension of                                                                          applicability of the requirements of 5
                                             benefits under section 305(e)(9) of                      unenforceability, in which event the
                                                                                                      provision will be severable from this                 U.S.C. 553.
                                             ERISA.                                                                                                            In this final rule, after consideration
                                                Section 4262.17 also provides that a                  part and the remaining provisions given
                                                                                                                                                            of the comments received, PBGC is
                                             plan that receives SFA and meets the                     effect without regard to the severed
                                                                                                                                                            adopting changes to provisions of the
                                             eligibility requirements for partition of                provision.’’
                                                                                                         PBGC received no comments on                       interim final rule on the methodology to
                                             the plan under section 4233(b) of ERISA                                                                        determine the amount of a plan’s SFA,
                                             may apply for partition under section                    § 4262.17 and made no changes in the
                                                                                                      final rule except, as described, to                   permissible investments of SFA funds,
                                             4233. One of those requirements, in                                                                            and the application of conditions on a
                                             section 4233(b)(2), provides that a                      § 4262.17(g).
                                                                                                                                                            plan that receives SFA. As discussed
                                             multiemployer plan is eligible for                       Compliance With Rulemaking                            earlier in the preamble, PBGC in the
                                             partition if ‘‘the corporation determines,               Guidelines                                            interim final rule considered fully
                                             after consultation with the Participant                                                                        disregarding SFA for withdrawal
                                             and Plan Sponsor Advocate . . ., that                    Administrative Procedure Act
                                                                                                                                                            liability purposes, and explained why it
                                             the plan sponsor has taken (or is taking                    As described in the interim final rule,            did not adopt that alternative. Interested
                                             concurrently with an application for                     under new section 4262(c) of ERISA,                   persons submitted comments on that
                                             partition) all reasonable measures to                    PBGC was required to issue regulations                issue, and PBGC is now adopting a
                                             avoid insolvency, including the                          or guidance setting forth the                         condition requiring a phased
                                             maximum benefit suspensions under                        requirements for eligible plans to apply              recognition of SFA in a plan’s
                                             section 305(e)(9), if applicable[.]’’                    for special financial assistance (SFA)                determination of withdrawal liability in
                                             Section 4262(m)(6) provides that a plan                  within 120 days of the date of                        § 4262.16(g)(2) in response to those
                                             that receives SFA is not eligible to apply               enactment of ARP (March 11, 2021).                    comments. The withdrawal liability
                                             for a subsequent suspension of benefits                  Congress authorized PBGC to prioritize                condition adopted is consistent with
                                             under MPRA. Therefore, for a plan that                   the filing of applications for eligible               PBGC’s statutory authority to impose
                                             receives SFA, a suspension of benefits                   plans with the greatest need, during the              reasonable conditions on plans that
                                             under section 305(e)(9) is not                           first two years after March 11, 2021, and             receive SFA under section 4262(m) of
                                             ‘‘applicable’’ within the meaning of                     PBGC provided for such a process.                     ERISA. It is also more effective, along




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                                             section 4233(b)(2) and is not a                          Moreover, PBGC must review                            with the other conditions, for achieving
                                             reasonable measure available to the                      applications within only 120 days of                  the intended purpose of that statutory
                                             plan. Accordingly, PBGC will not reject                  filing and plans must apply by the                    authority—to help enable plans that
                                             a partition application from a plan that                 statutory cutoff date of December 31,                 receive SFA to pay benefits due through
                                             received SFA solely because the plan                     2025 (December 31, 2026, for revised                  2051 and to preclude or disincentivize
                                             did not suspend the benefits of                          applications). The compressed timeline                plans and employers from taking actions


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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                                  40999

                                             that have the potential to accelerate plan               not want to unduly delay providing                    multiemployer pension plans from a
                                             insolvencies.                                            financial assistance to plans.                        fund established by ARP for SFA
                                                PBGC is also providing for a comment                                                                        purposes and credited with transfers
                                             period of 30 days, solely on this                        Regulatory Impact Analysis
                                                                                                                                                            from the general fund of the Treasury
                                             withdrawal liability condition in                        (1) Relevant Executive Orders for                     Department.31
                                             § 4262.16(g)(2), because it is an area of                Regulatory Impact Analysis                               In the Regulatory Impact Analysis of
                                             complexity that may benefit from                            Under Executive Order (E.O.) 12866,                the interim final rule, PBGC provided
                                             additional public comment. This will                     OMB reviews any regulation determined                 estimates of the transfer amounts of the
                                             provide an opportunity for additional                    to be a ‘‘significant regulatory action.’’            SFA program using the Multiemployer-
                                             public comment on the condition, and                                                                           Pension Insurance Modeling System
                                                                                                      Section 3(f) of E.O. 12866 defines a
                                             will allow PBGC to assess the                                                                                  (ME–PIMS), PBGC’s stochastic modeling
                                                                                                      ‘‘significant regulatory action’’ as an
                                             effectiveness of this withdrawal liability                                                                     tool. The aggregate SFA was estimated
                                                                                                      action that is likely to result in a rule
                                             condition, consider adjustments or                                                                             to be approximately $94 billion in
                                                                                                      that: (1) has an annual effect on the
                                             changes, and determine whether more                                                                            assistance payments paid to more than
                                                                                                      economy of $100 million or more, or
                                             clarification is needed regarding the                                                                          200 plans and $150 million to PBGC to
                                                                                                      adversely affects in a material way a
                                             condition or the mechanics of                                                                                  administer the SFA program. PBGC
                                                                                                      sector of the economy, productivity,
                                             implementation. To the extent PBGC                                                                             further estimated that plans that
                                                                                                      competition, jobs, the environment,
                                             determines that adjustments or changes                                                                         received financial assistance from PBGC
                                                                                                      public health or safety, or State, local or
                                             to this withdrawal liability condition                                                                         under section 4261 of ERISA in the form
                                             are appropriate and authorized, or that                  tribal governments or communities (also               of loans will repay PBGC in aggregate
                                             further clarification is needed, PBGC                    referred to as economically significant);             approximately $200 million.
                                             may revise the condition accordingly.                    (2) creates serious inconsistency or                     Following consideration of comments
                                                PBGC is making this rule effective on                 otherwise interferes with an action                   on the interim final rule’s methodology
                                             August 8, 2022.                                          taken or planned by another agency; (3)               for determining the amount of SFA, this
                                                                                                      materially alters the budgetary impacts               final rule makes changes to the
                                             Congressional Review Act                                 of entitlement grants, user fees, or loan             regulation that impact that
                                                Pursuant to Subtitle E of the Small                   programs, or the rights and obligations               methodology. As a result, the aggregate
                                             Business Regulatory Enforcement                          of recipients thereof; or (4) raises novel            SFA paid out under the program is
                                             Fairness Act of 1996 (also known as the                  legal or policy issues arising out of legal           expected to differ from the $94 billion
                                             Congressional Review Act or CRA) (5                      mandates, the President’s priorities, or              estimated under the interim final rule.
                                             U.S.C. 801 et seq.), the Office of                       the principles set forth in the E.O.                  Additionally, since publication of the
                                             Management and Budget (OMB) has                             OMB has determined that this final                 interim final rule PBGC has made
                                             designated this final rule as a ‘‘major                  rule is economically significant under                updates to the ME–PIMS stochastic
                                             rule,’’ as defined by 5 U.S.C. 804(2)(a),                section 3(f)(1) and has therefore                     model, including incorporating more
                                             which is a rule likely to result in an                   reviewed this rule under E.O. 12866.                  recent plan and economic data. PBGC
                                             annual effect on the economy of $100                        E.O. 13563 supplements and reaffirms               now estimates that if the final rule had
                                             million or more. Section 808(2) of the                   the principles, structures, and                       not included any changes to the
                                             CRA provides that, notwithstanding the                   definitions governing contemporary                    provisions of the interim final rule, the
                                             effective date of a major rule defined                   regulatory review that were established               aggregate SFA would have been $76.7
                                             under section 801, any rule which an                     in E.O. 12866, emphasizing the                        billion. The decrease of $17.3 billion is
                                             agency for good cause finds that notice                  importance of quantifying both costs                  primarily attributed to incorporating
                                             and public procedure thereon are                         and benefits, reducing costs,                         more recent plan data, which reflects
                                             impracticable, unnecessary, or contrary                  harmonizing rules, and promoting                      subsequent asset returns that were more
                                             to the public interest, shall take effect at             flexibility. It directs agencies to assess            favorable than expected in the prior
                                             such time as the Federal agency                          the costs and benefits of available                   estimate.32 In general, an increase in the
                                             promulgating the rule determines. This                   regulatory alternatives and, if regulation            initial value of existing plan assets
                                             good cause justification supports waiver                 is necessary, to select regulatory                    reduces the calculated amount of SFA.
                                             of the 60-day delayed effective date for                 approaches that maximize net benefits                 Under the final rule, when reflecting the
                                             major rules under the CRA.                               (including potential economic,                        changes to the determination of the
                                                Because of the urgent need for the                    environmental, and public health and                  amount of SFA, the aggregate SFA is
                                             SFA program and to get appropriate                       safety effects, distributive impacts, and             expected to be approximately $82.3
                                             financial assistance to eligible plans                   equity).                                              billion. The expected cost to administer
                                             quickly, PBGC has determined that this                      PBGC has provided an assessment of                 the SFA program remains unchanged
                                             final rule must take effect August 8,                    the potential benefits, costs, and                    from the $150 million estimate under
                                             2022. This effective date allows eligible                transfers associated with the final rule.             the interim final rule, and total loan
                                             plans to apply for and receive SFA                                                                             repayments under section 4261 of
                                             under the terms of the final rule without                (2) Introduction and Need for
                                                                                                      Regulation                                            ERISA are estimated to be $385 million
                                             unnecessary delay. Plans that already                                                                          (an increase of $185 million compared
                                             applied for, or received, SFA before the                   As discussed earlier in the preamble,               to the previous estimate). The estimate
                                             effective date of the final rule will be                 PBGC published an interim final rule                  of aggregate SFA under the program
                                             able to apply for any greater amount of                  adding to its regulations a new part                  continues to be subject to significant
                                             SFA under the final rule. Plans that                     4262 to implement the requirements                    uncertainty, and the actual aggregate
                                             have not yet applied will be able to                     under section 9704 of the American




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                                             submit applications using the                            Rescue Plan (ARP) Act of 2021, ‘‘Special                31 Specifically, section 9704 of ARP establishes an

                                             methodology provided under the final                     Financial Assistance Program for                      eighth fund under section 4005 of ERISA.
                                                                                                                                                              32 The latest version of the ME–PIMS model
                                             rule. Under the circumstances, PBGC                      Financially Troubled Multiemployer
                                                                                                                                                            reflects asset return information through December
                                             has determined that public interest is                   Plans.’’ It is through this program that              31, 2021. Actual SFA amounts will depend on plan
                                             best served by making this final rule                    PBGC is providing special financial                   asset performance through an application’s SFA
                                             effective on August 8, 2022. PBGC does                   assistance (SFA) to eligible                          measurement date.



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                                             41000                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             SFA will depend on plan experience                       rule are more effective at achieving the              as plans that are insolvent or nearly
                                             prior to applying for SFA, particularly                  intended purpose of not enabling plans                insolvent at the time of application for
                                             for asset returns. As such, the estimate                 that receive SFA to take actions that                 SFA.
                                             is highly sensitive to the date of                       have the potential to accelerate plan                    Allowing plans to invest a portion of
                                             estimation. While the current estimate                   insolvencies, which would bring about                 SFA in return-seeking assets increases
                                             of SFA is based on investment returns                    participant benefit cuts and increased                expected investment returns, but also
                                             through the end of 2021, capital market                  future claims on PBGC’s multiemployer                 increases the risk of loss. Under adverse
                                             experience in early 2022 was                             insurance program.                                    market scenarios, plans could incur
                                             characterized by equity losses and rising                                                                      losses in their SFA assets that would
                                                                                                      (3) Regulatory Action                                 accelerate the future date of plan
                                             interest rates. As a result, plans are
                                             likely to have incurred asset losses, and                  PBGC considered the public                          insolvency. The outcome may be
                                             it is expected that SFA amounts for                      comments received in response to its                  particularly adverse if there is a severe,
                                             many plans will increase from the                        interim final rule. The regulatory                    protracted market downturn shortly
                                             current estimates. However, a rise in the                changes made in the final rule reflect                after plans receive SFA. The increased
                                             SFA and non-SFA interest rates may                       feedback provided in these comments                   investment risk due to the allowance of
                                             cause SFA amounts for many plans to                      and align with key objectives described               return-seeking investments in SFA
                                             decrease from the current estimates.                     in the interim final rule: (1) to transfer            assets may be mitigated by the longer-
                                             Future experience is uncertain and                       to a plan the amount required under                   term investment horizon for total plan
                                             further changes to capital markets and                   section 4262 of ERISA as soon as                      assets following receipt of SFA.
                                             interest rates prior to the time many                    practicable; (2) to prioritize the
                                                                                                      applications of plans in imminent need                Determination of the Amount of SFA:
                                             plans submit their SFA applications                                                                            Use of a Separate Interest Rate Applied
                                             will impact the final payment amounts.                   of financial support and where
                                                                                                      participants’ suspended benefits are to               for the Projection of SFA Assets
                                             Based on PBGC’s stochastic modeling, a
                                             range of projected outcomes spans from                   be restored; (3) to establish an efficient               The final rule amends § 4262.4 to
                                             $74.3 billion at the 15th percentile to                  system for processing applications; (4)               include a separate interest rate
                                             $90.8 billion at the 85th percentile.33                  stewardship of taxpayer-funded                        assumption applicable for the projected
                                                The final rule also makes changes to                  appropriations for SFA; (5) maintaining               SFA assets in the calculation used to
                                             permissible investments under                            the security of pension benefits (current             determine a plan’s SFA amount. The
                                             § 4262.14. Section 4262(l) of ERISA                      accrued benefits and future accruals) of              SFA interest rate is a more appropriate
                                             provides PBGC with specific regulatory                   participants in plans that receive SFA;               assumed rate of return for SFA assets
                                             authority to permit plans to invest SFA                  and (6) preservation of the solvency of               that reflects the investment restrictions
                                             assets in investments other than                         the PBGC multiemployer insurance                      for these assets under § 4262.14,
                                             investment grade bonds. The interim                      program. A detailed description of the                including allowing plans to invest up to
                                             final rule did not permit a wide range                   rationale for each regulatory change                  33 percent of the segregated SFA assets
                                             of investments for SFA assets, and                       made is included earlier in the preamble              in return-seeking assets. The SFA
                                             PBGC sought public feedback on                           to this final rule, including applicable              interest rate also comports with the
                                             whether to permit investment of SFA                      public comments.                                      statutory requirements that the amount
                                             assets in investment vehicles with                         A summary of the regulatory changes                 of SFA be the amount projected for
                                             different characteristics from investment                under the final rule and related                      plans to pay all benefits due through
                                             grade bonds. The investment portfolio                    economic considerations for each                      2051. The deterministic projection used
                                             of SFA assets can have a significant                     change are described as follows.                      to determine the amount of SFA under
                                             impact on a plan’s future solvency                                                                             § 4262.4 was also changed to assume
                                                                                                      Expansion of SFA Permissible
                                             projections, particularly for plans with a                                                                     that the SFA assets would be spent
                                                                                                      Investments                                           down by the plan before non-SFA plan
                                             high proportion of SFA assets relative to
                                             non-SFA plan assets. The SFA asset                          The final rule amends § 4262.14 to                 assets are used. Although the final rule
                                             allocation also impacts a plan’s                         allow plans to invest up to 33 percent                does not require SFA assets to be used
                                             investment risk exposure. Use of the                     of SFA assets in return-seeking assets,               before other plan assets to pay benefits
                                             regulatory authority under section                       e.g., U.S. equities. Comments on the                  and expenses, this assumption in the
                                             4262(l) to expand permissible                            interim final rule were received in 2021              final rule reflects plans’ expected
                                             investments strikes a balance between                    at a time when high quality fixed                     behavior to minimize the impact of
                                             the risk and potential reward of                         income provided yields below two                      investment restrictions on SFA assets
                                             allowing plans to use taxpayer-funded                    percent. While fixed income yields have               and applies even if a plan does not
                                             SFA assets to purchase return-seeking                    risen significantly in early 2022, prices             follow that behavior.
                                             investments.                                             on U.S. equities have dropped at the                     Use of a separate, lower interest rate
                                                Section 4262(m) of ERISA provides                     same time (which would increase their                 in the deterministic projection increases
                                             PBGC with regulatory authority (in                       potential for higher future returns after             the amount of SFA. For plans with a
                                             consultation with the Secretary of the                   the markets level off), thereby                       low proportion of SFA assets to non-
                                             Treasury) to impose reasonable                           maintaining the expected advantage of                 SFA plan assets, the increase is minor
                                             conditions on eligible multiemployer                     allowing some investment in return-                   because the SFA assets will not earn
                                             plans that receive SFA (see Conditions                   seeking assets. As a result, SFA assets               significant returns before they are
                                             for special financial assistance earlier in              generally are expected to achieve higher              projected to be spent down within a few
                                             the preamble). The final rule includes                   investment returns than under the                     years. For plans with a large proportion
                                                                                                      provisions of the interim final rule and              of SFA assets to non-SFA plan assets,




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                                             certain changes to the regulatory
                                             conditions in the interim final rule,                    thus better enable plans to project to pay            such as plans that are insolvent or
                                             based on consideration of public                         benefits through 2051. The impact of                  nearly insolvent at the time of
                                             comments. The conditions in the final                    this change on plans’ projected future                application for SFA, the increase in the
                                                                                                      solvency is greater for plans that are                final SFA amount attributable to the
                                               33 Actual experience could deviate outside this        expected to have a large proportion of                separate lower interest rate is more
                                             projected range.                                         SFA assets to non-SFA plan assets, such               significant.


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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                          41001

                                             Determination of the Amount of SFA:                      Conditions Relating to Allocation of                  the latter date to the last day of the plan
                                             Calculation Methodology for Plans With                   Contributions and Other Income                        year in which the plan projects that it
                                             an Approved MPRA Benefit Suspension                         The final rule amends § 4262.16(e) to              will exhaust any SFA assets (extended
                                             as of March 11, 2021                                     add a process by which a plan may                     by the number of years, if any, that the
                                                                                                      request a determination from PBGC for                 first plan year of payment is after the
                                                The final rule amends § 4262.4 to                                                                           plan year that includes the SFA
                                             specify a revised methodology for the                    a limited exception from the condition
                                                                                                      prohibiting a decrease in the proportion              measurement date).
                                             calculation of SFA for plans with an                                                                              The final rule under § 4262.16(g)(2)
                                             approved suspension of benefits under                    of contributions allocated to a plan that
                                                                                                                                                            adds a condition relating to withdrawal
                                             MPRA as of March 11, 2021. This                          receives SFA if future plan
                                                                                                                                                            liability for a plan that receives SFA.
                                             change provides that the amount of SFA                   circumstances permit the reallocation of
                                                                                                                                                            This condition requires plans to
                                             is the greatest of: (1) the amount of SFA                contributions without endangering the
                                                                                                                                                            recognize over time the amount of SFA
                                             calculated for a plan that is not a MPRA                 plan’s ability to pay all benefits. Under             received by the plan for the purpose of
                                             plan; (2) the lowest amount of SFA that                  the new provision, beginning 5 years                  determining the plan’s UVBs for
                                             is sufficient to ensure that the plan will               after the end of the plan year in which               calculating withdrawal liability. The
                                             project rising assets at the end of the                  a plan receives payment of SFA, the                   amount of SFA is phased in for
                                             2051 plan year; and (3) an amount of                     plan may apply for an exception by                    withdrawal liability purposes each year
                                             SFA equal to the present value of                        demonstrating to the satisfaction of                  over the projected life of SFA assets
                                             reinstated benefits (accounting for both                 PBGC, taking into account the proposed                (determined as if SFA assets and
                                             make-up payments needed, as well as                      reallocation of contributions, that the               earnings thereon are exhausted before
                                             payments of the reinstated portion of                    plan will avoid insolvency and that the               other plan assets are used to pay
                                             benefits through 2051, and any                           reallocation is needed due to a                       benefits and expenses).
                                             restoration of benefits under 26 CFR                     significant increase in health benefit                   As stated in the Regulatory Impact
                                             1.432(e)(9)–1(e)(3)). These additional                   costs due to a change in Federal law.                 Analysis of the interim final rule,
                                             SFA calculations in (2) and (3), set forth               The reallocation would be required to                 conditions on withdrawal liability are
                                             in the final rule, accord with                           be no more than a 10 percent reduction                intended to prevent SFA payments from
                                             requirements and considerations that                     in the amount of the contribution rate                leading to significant decreases in
                                             are unique to MPRA plans.                                negotiated on or before March 11, 2021,               withdrawal liability assessments that
                                                                                                      going to the pension plan and would be                would incentivize employers to
                                                The calculation will increase the
                                                                                                      required to be temporary (no more than                withdraw from these plans. The purpose
                                             amount of SFA for plans that had an
                                                                                                      5 years for a reallocation request relating           of SFA is to help plans pay for benefits
                                             approved suspension of benefits under
                                                                                                      to any single change in Federal law and               and plan expenses and not to indirectly
                                             MPRA as of March 11, 2021, and
                                                                                                      no more than 10 years cumulatively for                subsidize employers and encourage
                                             thereby increase the total amount of
                                                                                                      all reallocation requests during the                  them to exit these plans. As discussed
                                             SFA distributed under the program.
                                                                                                      plan’s SFA coverage period).                          in the interim final rule, PBGC
                                             There are 18 plans expected to benefit
                                                                                                         This provision is intended to provide              considered a condition requiring
                                             from this change in the final rule.
                                                                                                      plan sponsors with very limited                       exclusion of SFA from plan assets in
                                             Conditions Relating to Benefit                           flexibility to reallocate contributions               calculating withdrawal liability, but did
                                             Improvements                                             temporarily to use for unexpected                     not include such a condition in the
                                                                                                      changes in Federal law. This temporary                interim final rule. However, PBGC has
                                                The final rule amends § 4262.16(b) to                 reallocation would give the bargaining                given further consideration to the
                                             add a process by which a plan may                        parties time to negotiate contributions               impact of SFA on incentives to
                                             request a determination from PBGC for                    for the health plan under a collective                withdraw based on commenters’
                                             an exception from the conditions                         bargaining agreement. Because plans                   concerns about the effectiveness of the
                                             prohibiting prospective and                              will have to demonstrate to PBGC that                 prescribed-interest-assumptions
                                             retrospective benefit increases if future                any proposed reallocation of                          condition alone in disincentivizing
                                             plan circumstances permit the benefit                    contributions will not lead to projected              employer withdrawals after a plan’s
                                             increases without endangering the                        plan insolvency and because the                       receipt of SFA. Since publication of the
                                             plan’s ability to pay all benefits. Under                reallocation will be temporary, PBGC                  interim final rule, rising interest rates,
                                             the new provision, beginning 10 years                    expects there to be no impact on                      and corresponding increases in the
                                             after the end of the plan year in which                  projected future financial assistance                 prescribed interest assumptions, have
                                             a plan receives payment of SFA, the                      under section 4261 of ERISA.                          further highlighted the limitation of the
                                             plan may apply for an exception by                                                                             effectiveness of the condition in the
                                             demonstrating to the satisfaction of                     Condition Related to Withdrawal
                                                                                                      Liability                                             interim final rule to achieve its purpose.
                                             PBGC, taking into account the proposed                                                                         To ensure that SFA is not used for a
                                             benefit increase, that the plan will avoid                 The final rule amends § 4262.16(g) to               purpose other than to make benefit
                                             insolvency.                                              modify the period of time for which a                 payments and pay plan expenses, a
                                                This provision is intended to provide                 plan must use the interest assumptions                condition relating to the phased
                                             plans with very limited flexibility to                   in appendix B to 29 CFR part 4044 of                  recognition of SFA assets for purposes
                                             improve benefits in the future while                     PBGC’s regulations in determining the                 of calculating withdrawal liability is
                                             preventing certain benefit increases that                UVBs of the plan under section 4213(c)                needed in addition to the interest rate
                                             could imperil a plan’s ability to remain                 of ERISA for purposes of determining an               condition on the measurement of
                                             solvent in the future. Because plans will                employer’s withdrawal liability. Under




jspears on DSK121TN23PROD with RULES3
                                                                                                                                                            liabilities.
                                             have to demonstrate to PBGC that any                     § 4262.16(g) of the interim final rule, the
                                             proposed benefit increases will not lead                 interest assumptions in appendix B to                 Conditions Applicable to Merged Plans
                                             to a projected date of insolvency, PBGC                  part 4044 are applicable until the later                The final rule amends § 4262.16(f) to
                                             expects there to be little to no impact on               of 10 years and the last day of the plan              provide that the conditions relating to
                                             projected future financial assistance                    year in which the plan no longer holds                prospective benefit increases under
                                             under section 4261 of ERISA.                             any SFA assets. The final rule revises                § 4262.16(b)(2), allocation of plan assets


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                                             41002                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             under § 4262.16(c), and allocating                                 § 4262.16(g) will not be waived. Those                                              statute from creating an impediment to
                                             expenses under § 4262.16(e) will not                               conditions, however, are limited to the                                             the consideration of a merger that would
                                             apply after the merger to the merged                               determination of UVBs that arose under                                              otherwise be beneficial to the plan and
                                             plan. In addition, as part of a request for                        the SFA plan before the date of the                                                 plan participants. The extent to which
                                             approval of a merger between plans                                 merger for purposes of allocating UVBs                                              the final rule does not create an
                                             where one or more plans are SFA plans,                             under subpart D of part 4211 and                                                    impediment to mergers is uncertain, but
                                             PBGC will provide a waiver of the                                  determining withdrawal liability for                                                PBGC expects these clarifications on
                                             conditions on retroactive benefit                                  employers that participated in the SFA                                              conditions applicable to merged plans
                                             increases and contribution decreases in                            plan. Finally, the restrictions on SFA in                                           to have no material impact on projected
                                             § 4262.16(b)(1) and (d) if prescribed                              § 4262.13(b), conditions in § 4262.16(f)                                            future financial assistance under section
                                                                                                                (merger or transfer), § 4262.16(h)                                                  4261 of ERISA.
                                             requirements are met. If the
                                                                                                                (withdrawal liability settlement),
                                             requirements for a waiver are not met,                             § 4262.16(i) (statement of compliance),                                             (4) Estimated Impact of Regulatory
                                             the final rule provides that these two                             and § 4262.16(j) (audit) continue to                                                Action
                                             conditions will apply, as applicable, to                           apply to the merged plan.
                                             participants in, or employers that have                              The clarifications in the final rule on                                             The following table summarizes the
                                             an obligation to contribute to, the SFA                            the application of conditions after a                                               estimated transfers and costs expected
                                             plan immediately before the merger.                                merger are intended to prevent the                                                  as a result of implementation of the SFA
                                             The withdrawal liability conditions in                             conditions that are not required by                                                 program.
                                                                      PV amount             PV amount                                                                                                                                                          2027–2051
                                                                                                                    2021                     2022                     2023                     2024                    2025                  2026
                                                                       (3% rate)             (7% rate)                                                                                                                                                          (total) 34

                                                                                                                                     Annual Transfer Amounts

                                             Total transfer         $86.16 billion        $77.14 billion       $1.26 billion          $43.68 billion           $23.03 billion           $13.32 billion            $8.89 billion         $3.33 billion         $0.47 billion.
                                               amounts based
                                               on Interim Final
                                               Rule (total nomi-
                                               nal value of
                                               $93.98 billion).
                                             Change based on        (15.91) billion       (14.28) billion      (1.26) billion         (7.13) billion ..        (4.19) billion ..        (2.42) billion ..         (1.61) billion        (0.60) billion        (0.08) billion.
                                               updated model
                                               data (plan & eco-
                                               nomic data)
                                               (total nominal
                                               value of $17.30
                                               billion).
                                             Change based on        5.17 billion ....     4.63 billion ....    0.00 billion ..        2.71 billion ....        1.38 billion ....        0.80 billion ....         0.53 billion ..       0.19 billion ..       0.03 billion.
                                               updated provi-
                                               sions of Final
                                               Rule (total nomi-
                                               nal value of
                                               $5.64 billion).
                                             Total transfer         75.42 billion ..      67.49 billion ..     0.00 billion ..        39.26 billion ..         20.22 billion ..         11.70 billion ..          7.81 billion ..       2.92 billion ..       0.42 billion.
                                               amounts based
                                               on Final Rule
                                               (total nominal
                                               value of $82.32
                                               billion).

                                                                                                                                      Annual Cost Amounts

                                             Anticipated PBGC       129.57 million        108.41 million       20.50 million          17.50 million            15.75 million            15.00 million             14.75 million         14.00 million         52.50 million.
                                               administrative
                                               expenses (total
                                               nominal value of
                                               $150 million).
                                             SFA applications ...   8,693,400 ......      7,781,400 ......     922,500 ......         3,075,000 ......         2,152,500 ......         1,998,800 ......          1,260,800 ...         78,800 ........       0.
                                             Lock-in applica-       54,800 ...........    48,400 ...........   0 .................    0 ....................   43,750 ...........       16,625 ...........        0 .................   0 .................   0.
                                               tions.
                                             Benefit reinstate-     68,900 ...........    63,800 ...........   0 .................    73,100 ...........       0 ....................   0 ....................    0 .................   0 .................   0.
                                               ment participant
                                               notices.
                                             Annual compliance      12,473,400 ....       7,211,100 ......     0 .................    76,500 ...........       275,400 .........        456,500 .........         622,200 ......        726,800 ......        18,168,750.
                                               filings.
                                             Condition exemp-       354,000 .........     209,900 .........    0 .................    0 ....................   19,600 ...........       19,600 ...........        19,600 ........       19,600 ........       489,250.
                                               tion filings.

                                                 Total cost         151.21 million        123.72 million       21.42 million          20.72 million            18.24 million            17.49 million             16.65 million         14.83 million         71.16 million.
                                                   amounts.




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                                               34 SFA payments to plans are expected to be $416                 million in 2030. Additional PBGC expenses are                                       compliance filings are expected to be $726,800 per
                                             million in 2027 and $0 thereafter. PBGC                            expected to be incurred from 2031 through 2051 but                                  year from 2027 through 2051. The costs relating to
                                             administrative expenses are expected to be $14                     would not be funded through general                                                 condition exemption filings are expected to be
                                             million per year from 2027 through 2029 and $10.5                  appropriations. The costs relating to annual                                        $19,600 per year from 2027 through 2051.



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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                          41003

                                             Change to the Estimated Amount of SFA                    one-time application to PBGC is                       mergers between healthier ‘‘green zone’’
                                                In support of the development of the                  $30,750, the estimated average cost to                plans and plans that receive SFA, there
                                             final rule, PBGC conducted modeling of                   prepare the lock-in application is $875,              may be a decrease in projected future
                                             the impact of changes to the calculation                 and the estimated average cost to                     financial assistance under section 4261
                                             procedures for SFA under § 4262.4 and                    prepare the annual statement of                       of ERISA. The actual impact will
                                             changes to permissible investments                       compliance is $2,550. PBGC estimates                  depend on plan behavior and future
                                             under § 4262.14. These provisions                        that over the next 3 years (2022–2024)                experience, particularly future
                                             directly impact both the total estimated                 it will receive annually an average of 78             investment returns. Overall, PBGC does
                                             cost of the SFA program as well as the                   applications for SFA at an aggregate                  not expect a material impact as a result
                                             projected solvency of plans after receipt                average annual cost of $2,398,500, 23                 of the changes made in the final rule to
                                             of SFA. The modeling is subject to                       lock-in applications at an aggregate                  the conditions.
                                             significant limitations, including                       average annual cost of $20,125, and 106
                                                                                                      annual statements of compliance at an                 (5) Regulatory Alternatives Considered
                                             limited available data, uncertainty
                                             regarding the number of plans                            aggregate average annual cost of                      Expansion of SFA Permissible
                                             ultimately eligible to apply, uncertainty                $270,300.                                             Investments
                                                                                                         In addition, certain plan sponsors that
                                             regarding future asset returns, and other                                                                         PBGC considered the implications of
                                                                                                      receive SFA are subject to participant
                                             factors. However, despite the future                                                                           making no change to permissible
                                                                                                      disclosure and reporting requirements.
                                             uncertainty, the modeling shows that                                                                           investments under § 4262.14 in the final
                                                                                                      A plan sponsor of a plan with benefits
                                             under the final rule, eligible plans are                                                                       rule. In one alternative, if the regulation
                                                                                                      that were suspended under section
                                             significantly more likely to meet the                                                                          for permissible investments and for the
                                                                                                      305(e)(9) or 4245(a) of ERISA must issue
                                             statutory direction in section 4262(j)(1)                                                                      applicable interest rate (§ 4262.4) both
                                                                                                      a notice of reinstatement to participants
                                             of ERISA to project to be able to pay                                                                          remained unchanged from the interim
                                                                                                      and beneficiaries whose benefits were
                                             benefits due through plan year 2051,                     previously suspended and then                         final rule, many plans would not be
                                             without incurring excessive investment                   reinstated. The estimated average cost                projected to pay all benefits due through
                                             risk exposure. The cost estimates in the                 (dollar equivalent of the in-house hour               2051. Because of the investment
                                             table above also reflect general updates                 burden + contractor costs) to prepare the             restrictions, it would be unlikely that
                                             made to PBGC’s ME–PIMS model to                          notice of reinstatement is $2,150. PBGC               the SFA portion of assets would achieve
                                             reflect more recent plan and economic                    estimates that over the next 3 years                  a rate of return as high as the interest
                                             data. These updates decreased the total                  (2022–2024) an average of 11.33 plans                 rate used to determine SFA. This issue,
                                             nominal SFA estimate by $17.3 billion,                   annually (34 total plans) will issue the              described in many public comment
                                             primarily due to the incorporation of                    notice of reinstatement to an average of              letters, is more pronounced for plans
                                             more recent plan asset return                            3,050 participants and beneficiaries at               with a large proportion of SFA assets to
                                             information that was more favorable                      an aggregate average annual cost of                   existing plan assets, such as plans that
                                             than expected.35                                         $24,367.                                              are insolvent or nearly insolvent at the
                                             Filing and Issuance Requirements                            A plan sponsor that receives SFA also              time of application for SFA.
                                                                                                      is required to administer the plan in                    In another alternative, if no change
                                                As discussed in this final rule, to                   accordance with conditions prescribed                 were made to expand permissible
                                             request SFA for a multiemployer plan,                    by PBGC in § 4262.16. A plan sponsor                  investments but the final rule allowed
                                             a plan sponsor must, under section 4262                  may request approval from PBGC for an                 for a separate interest rate based
                                             of ERISA and part 4262, file an                          exception under certain circumstances                 exclusively on the expected return of
                                             application with PBGC. The                               for conditions relating to benefit                    investment grade bonds to be applied to
                                             applications for SFA must include                        increases, reductions in contributions,               the SFA portion of plan assets, plans
                                             information about the plan, plan                         transfers or mergers, and settlement of               would receive higher SFA payments
                                             documentation, and actuarial                             withdrawal liability, prospective and                 enabling them to pay all benefits due
                                             information. The information is                          retrospective benefit increases                       through 2051 on a projected basis.
                                             necessary for PBGC to verify a plan’s                    beginning 10 years after the date a plan              However, this alternative would require
                                             eligibility for SFA, amount of requested                 receives SFA, and allocation of                       using a lower interest rate for SFA assets
                                             SFA, and if applicable, inclusion in a                   contributions beginning 5 years after the             under § 4262.4 than provided in the
                                             priority group. Also, under the final                    date a plan receives SFA. PBGC expects                final rule, which would further increase
                                             rule, a plan sponsor may, but is not                     these determination requests to be                    the aggregate cost of the SFA program.
                                             required to, file a lock-in application as               infrequent. PBGC estimates that it will               PBGC projects that this alternative could
                                             a plan’s initial application. The lock-in                receive an average of 2.2 requests per                have increased the total amount of SFA
                                             application contains basic information                   year in 2023 and 2024 at a cost of                    by a range of approximately $5 billion
                                             about the plan and a statement of intent                 $19,570 per year (averaged over 2022–                 to $10 billion over the interim final rule.
                                             to lock-in base data. In addition, under                 2024 = $13,047).                                         PBGC also considered the
                                             part 4262, a plan that receives SFA is                      The total average annual cost for the              implications of an even less restrictive
                                             required to file a compliance notice                     information collection is $2,724,614                  definition of permissible investments
                                             with PBGC once every year through the                    ($2,398,500 + $18,400 + $270,300 +                    than under the final rule, including an
                                             plan year ending in 2051. As discussed                   $24,367 + $13,047).                                   option to allow plans to invest all (not
                                             further in the Paperwork Reduction Act                                                                         just a portion) of SFA funds in return-
                                             section, the estimated average cost                      Conditions for Plans That Receive SFA                 seeking assets and/or in other
                                             (dollar equivalent of the in-house hour                    As discussed above, the changes made                investments not included in the final




jspears on DSK121TN23PROD with RULES3
                                             burden + contractor costs) to prepare the                to § 4262.16 in the final rule are not                rule’s definition of permissible
                                                                                                      expected to have a significant impact on              investments. Although an average
                                               35 The latest version of the ME–PIMS model
                                                                                                      future plan solvency experience. To the               projection scenario shows favorable
                                             reflects asset return information through December
                                             31, 2021. Actual SFA amounts will depend on plan
                                                                                                      extent that the provisions in § 4262.16(f)            outcomes that could allow plans to
                                             asset performance through an application’s SFA           setting forth which conditions continue               realize even greater investment returns
                                             measurement date.                                        to apply to a merged plan encourage                   to support being sufficiently funded to


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                                             41004                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             be able to pay plan benefits through                     standard these plans met in order to be               prescribed-interest-assumptions
                                             2051, and in fact, effectively extending                 approved for MPRA benefit                             condition alone in disincentivizing
                                             plan solvencies beyond 2051, there is an                 suspensions—by reinstating the benefits               employer withdrawals after a plan
                                             overall increase in investment risk that                 suspended under MPRA might now be                     receives SFA. Since publication of the
                                             adverse market conditions could put                      expected to run out of money in 2051.                 interim final rule, rising interest rates,
                                             plans in greater jeopardy of becoming                    In this case, plans would have to                     and corresponding increases in the
                                             insolvent well before the last day of the                consider the varying interests of its                 prescribed interest assumptions, have
                                             2051 plan year and undermine their                       participants (i.e., the positive impact of            further highlighted the limits to the
                                             potential to pay all benefits due through                benefit reinstatements for participants               effectiveness of the condition in the
                                             2051. The final rule is more protective                  receiving benefits in the near-term                   interim final rule to achieve its purpose.
                                             of the taxpayer assets used to fund SFA                  versus the negative impact of potential               PBGC seeks to ensure that SFA is not
                                             and PBGC’s title IV insurance program                    insolvency to participants receiving                  used other than for its intended purpose
                                             and also protects plans from exposure to                 benefits in the long-term) in deciding                of paying plan benefits and
                                             excessive investment risk and potential                  whether to apply for SFA. The                         administrative expenses.
                                             losses that may be difficult to recover.                 calculation procedures for MPRA plans                    PBGC considered an alternative
                                                                                                      under § 4262.4 under the final rule                   condition under which the reduction in
                                             Determination of the Amount of SFA:                                                                            plan assets taken into account for
                                                                                                      enable these plans to retain a strong
                                             Use of a Separate Interest Rate Applied                                                                        purposes of determining UVBs under
                                                                                                      projected funded position through 2051.
                                             for the Projection of SFA Assets                           PBGC considered a variation of the                  section 4213(c) of ERISA is the
                                                PBGC considered making no changes                     SFA calculation such that plan assets                 projected amount of SFA determined
                                             to the SFA calculation under § 4262.4 of                 must be projected to increase during                  under § 4262.4(b), but without any
                                             the interim final rule related to interest               each of the final 5 years of the SFA                  ratable decrease in the years following
                                             rate assumptions. Although this would                    coverage period. This variation would                 receipt of SFA. This alternative would
                                             have had a less significant impact on the                be consistent with the required period                also have prevented a sharp decrease in
                                             transfer cost of the SFA program,                        for which available resources must be                 withdrawal liability in the year
                                             PBGC’s modeling shows that under the                     projected to increase in an application               following the year of receipt of SFA, but
                                             interim final rule, the vast majority of                 for a proposed MPRA benefit                           would result in a sharp decrease in
                                             plans, including many plans with a                       suspension. While this approach would                 withdrawal liability in the year
                                             large proportion of SFA assets to                        help to further improve the expected                  following the year the condition no
                                             existing plan assets, would not be                       future funded position for these plans,               longer applies. In place of that
                                             projected to be able to pay benefits due                 PBGC estimated that it could increase                 condition, PBGC has added a condition
                                             through plan year 2051 as set forth in                   the total transfer cost of the SFA                    requiring phased recognition of SFA as
                                             section 4262(j)(1) of ERISA. Further,                    program by an additional $0.5 billion.                a plan asset for withdrawal liability
                                             though PBGC found that loosening the                                                                           purposes. It is conceptually similar to
                                             investment restrictions for SFA assets                   Conditions Related to Benefit
                                                                                                                                                            the smoothed recognition of plan assets
                                             under § 4262.14 would provide some                       Improvements and Allocation of
                                                                                                                                                            for purposes of calculating a plan’s
                                             assistance in this respect, this would                   Contributions and Other Income
                                                                                                                                                            minimum funding requirements and is
                                             introduce greater overall investment risk                   PBGC considered making no changes                  roughly comparable to the gradual
                                             for SFA and could undermine the                          to the conditions related to benefit                  recognition of SFA in determining
                                             ability of plans to remain solvent                       improvements under § 4262.16(b) and                   minimum funding. For a majority of
                                             through the end of plan year 2051                        allocation of contributions and other                 plans that receive SFA, all SFA will be
                                             should particularly adverse market                       income under § 4262.16(e). However,                   recognized as a plan asset for
                                             conditions occur.                                        PBGC recognizes that some plans may                   withdrawal liability purposes within 10
                                                                                                      enjoy favorable experience after                      years, and because an additional portion
                                             Determination of SFA: Calculation
                                                                                                      receiving SFA and outperform the                      of the SFA will be reflected in the
                                             Methodology for Plans With Approved
                                                                                                      projected experience in the                           determination of withdrawal liability
                                             MPRA Benefit Suspensions as of March
                                                                                                      deterministic projection included in the              each year, the effect of the condition
                                             11, 2021
                                                                                                      SFA application. Some plans may                       will lessen over time. PBGC determined
                                                PBGC considered making no changes                     achieve a relatively strong financial                 that a phased recognition of SFA for
                                             to the SFA calculation under § 4262.4 of                 position and be projected to remain                   withdrawal liability purposes is a
                                             the interim final rule for plans with                    solvent well beyond 2051. Under                       reasonable condition in addition to the
                                             approved suspensions of benefits under                   limited circumstances, it may be                      condition prescribing the interest
                                             MPRA as of March 11, 2021. Although                      beneficial to plan participants to                    assumptions to be used in valuing
                                             this would have kept the transfer cost of                provide some plan sponsors with                       liabilities.
                                             the SFA program unchanged, it would                      limited flexibility to improve benefits or
                                             have allowed for a potential dilemma                                                                           Conditions on Merged Plans
                                                                                                      to reallocate contributions temporarily
                                             for these plans. Some commenters                         to another plan while not jeopardizing                  PBGC considered requiring all
                                             raised a concern that some plans with                    the security of future benefit promises               restrictions and conditions to apply to a
                                             approved benefit suspensions under                       under the pension plan.                               merged plan for the conditions related
                                             MPRA would receive less in SFA under                                                                           to mergers under § 4262.16(f), in
                                             the provisions of the interim final rule                 Conditions Related to Withdrawal                      response to questions in public
                                             than would be necessary for the plan to                  Liability                                             comment letters, whether or which
                                             pay for future benefit reinstatements                      PBGC considered making no changes                   conditions would continue to apply to




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                                             (including those payable after the year                  to the withdrawal liability condition                 a merged plan. Requiring a merged plan
                                             2051). Under the interim final rule, the                 under § 4262.16(g). However, PBGC has                 to comply with all § 4262.16 conditions
                                             plan’s projected insolvency would be                     given further consideration to the                    would ensure that the plan does not
                                             accelerated by choosing to receive SFA.                  impact of SFA on incentives to                        subsequently take any actions that may
                                             A plan that is projected to avoid                        withdraw based on commenters’                         jeopardize the SFA received by one or
                                             insolvency indefinitely—which is the                     concerns about the effectiveness of the               more of the plans involved in the


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                                                                           Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                                                 41005

                                             merger and therefore, the merged plan’s                                    $2,340,000 (78 × $30,000) and 780 (78                          and retrospective benefit increases until
                                             future solvency. However, this could                                       × 10) hours.                                                   at least 2032 and no requests for
                                             discourage plans from entering into                                           An annual average of 23 plan                                determinations concerning reallocation
                                             transactions that would be beneficial to                                   sponsors are expected to file lock-in                          of contributions until at least 2027. The
                                             the plan and plan participants, such as                                    applications as initial applications for                       annual average for all requests for 2022–
                                             a small plan that received SFA merging                                     SFA (0 in 2022, 50 in 2023, and 19 in                          2024 is 1.47 requests per year. PBGC
                                             with a large ‘‘green zone’’ plan. PBGC                                     2024). PBGC needs the information in                           needs the information requested to
                                             believes that mergers can often be an                                      the lock-in application to ensure that a                       make a determination on the proposed
                                             effective tool to lower costs and                                          plan sponsor intends to lock-in the                            transaction, withdrawal liability
                                             streamline plan administration and does                                    plan’s data. PBGC estimates that each                          settlement, contribution decrease, or
                                             not want to inadvertently discourage                                       application requires $800 in contractor                        benefit increase. PBGC estimates an
                                             transactions that are in the best interest                                 cost and 1 hour of in-house fund time.                         average annual hour burden (employer
                                             of plan participants.                                                      Thus, the lock-in application imposes                          and fund office hours) and average
                                                                                                                        estimated annual burdens of $18,400 (23                        annual cost burden (contractor costs)
                                             Regulatory Flexibility Act
                                                                                                                        × $800) and 23 (23 × 1) hours.                                 per request of:
                                                Because PBGC is not publishing a                                           PBGC estimates that an annual                                  • 1.6 hours (8 hours × .2) and $5,000
                                             general notice of proposed rulemaking                                      average of 106 plan sponsors will file                         ($25,000 × .2) for a proposed
                                             under 5 U.S.C. 553(b), the regulatory                                      Annual Statements of Compliance (30 in                         contribution change;
                                             flexibility analysis requirements of the                                   2022, 108 in 2023, and 179 in 2024).                              • 4 hours and $12,000 for a proposed
                                             Regulatory Flexibility Act do not apply.                                   PBGC needs the information in this                             transfer or merger; and
                                             See 5 U.S.C. 601(2).                                                       statement to ensure that a plan is                                • 2 hours and $2,000 for a proposed
                                                                                                                        compliant with the conditions imposed                          settlement of withdrawal liability.
                                             Paperwork Reduction Act
                                                                                                                        upon its receiving SFA. PBGC estimates                            PBGC estimates that, beginning in
                                               With the final rule, PBGC is                                             that each annual statement of                                  2023, for 2.2 determination requests, the
                                             submitting changes to the collection of                                    compliance requires $2,400 in                                  aggregated average annual hour burden
                                             information, previously approved under                                     contractor cost and 2 hours of in-house                        will be 7.6 hours (1.6+4+2 employer and
                                             control number 1212–0074, to the Office                                    fund time. The annual statement of                             fund office hours) and the aggregated
                                             of Management and Budget (OMB) for                                         compliance imposes estimated annual                            average annual cost burden will be
                                             review and approval under the                                              burdens of $254,400 (106 × $2,400) and                         $19,000 ($5,000 + $12,000 + $2,000 in
                                             Paperwork Reduction Act. OMB’s                                             212 (106 × 2) hours.                                           contractor costs). For 2022–2024, PBGC
                                             decision regarding this information                                           An average of 11.33 plans per year (34                      estimates an average annual hour
                                             collection request will be available at                                    plans in 2022, 0 in 2023, and 0 in 2024)                       burden of 5.07 hours ((7.6+7.6)/3) and
                                             www.Reginfo.gov. Changes to the                                            will be required to send notices to                            an average annual cost burden of
                                             collection of information include                                          participants with suspended benefits.                          $12,667 (($19,000 + $19,000)/3).
                                             changes to the application for SFA,                                        This notice is intended to ensure                                 The estimated aggregate average
                                             annual statement of compliance, and                                        participants understand the calculation                        annual hour burden for 2022–2024 for
                                             determination requests. A new lock-in                                      and dates of their reinstated benefits                         the information collection in part 4262
                                             application form with corresponding                                        and, if applicable, make-up payments.                          is 1,042.73 hours (780 +23+ 212 + 22.66
                                             instructions is added. An agency may                                       PBGC estimates that the burden for each                        + 5.07), which means a cost equivalent
                                             not conduct or sponsor, and a person is                                    plan to prepare required notices is                            of $78,205 assuming a blended hourly
                                             not required to respond to, a collection                                   $2,000 in contractor cost and 2 hours of                       rate of $75 for employer and fund office
                                             of information unless it displays a                                        in-house fund time. Thus, these notices                        administrative, clerical, and supervisory
                                             currently valid OMB control number.                                        impose estimated annual burdens of                             time. The estimated aggregate average
                                               PBGC estimates that in the next 3                                        $22,667 (11.33 × $2,000) and 22.66                             annual cost burden for 2022–2024 for
                                             years an annual average of 78                                              (11.33 × 2) hours.                                             the information collection in part 4262
                                             applications for SFA (initial and                                             Also, PBGC estimates that in 2023 and                       is $2,648,134 ($2,340,000 + $18,400 +
                                             revised) will be filed (100 in 2022, 70                                    2024, PBGC will receive an average of                          $254,400 + $22,667 + $12,667), which
                                             in 2023, and 65 in 2024). PBGC needs                                       2.2 requests per year for determinations                       means approximately 6,620 contract
                                             the information in the application to                                      concerning a transfer of assets or                             hours assuming an average hourly rate
                                             review a plan’s eligibility for SFA,                                       liabilities (including a spinoff) or merger                    of $400 for work done by outside
                                             priority group status, and amount of                                       (1 per year); a withdrawal liability                           actuaries and attorneys. The actual hour
                                             requested SFA, and to make payment of                                      settlement greater than $50 million (1                         burden and cost burden per plan will
                                             SFA. PBGC estimates that each                                              per year); a contribution decrease (.2 (1                      vary depending on plan size and other
                                             application requires $30,000 in                                            every 5 years)); (0 requests in 2022, 2.2                      factors.
                                             contractor cost and 10 hours of in-house                                   requests in 2023, and 2.2 requests in                             The estimated average annual burden
                                             fund time. Thus, the application                                           2024). There will be no requests for                           figures for 2022–2024 are shown in the
                                             imposes estimated annual burdens of                                        determinations concerning prospective                          following table.

                                                                                                                                                                     Average # of     Hour burden       Hour burden—
                                                                                      Information collection                                                                                                              Cost burden
                                                                                                                                                                     respondents        (hours)         equivalent cost

                                             Applications for SFA ........................................................................................                      78               780          $58,500       $2,340,000




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                                             Lock-in application ...........................................................................................                    23                23            1,725           18,400
                                             Annual compliance statement .........................................................................                            106                212           15,900          254,400
                                             Notice of reinstatement ....................................................................................                11(11.33)             22.66            1,700           22,667
                                             Requests for determination .............................................................................                      1(1.47)              5.07              380           12,667

                                                   Totals: .......................................................................................................            219          1,042.73             78,205       2,648,134




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                                             41006                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                               Plan sponsors of multiemployer plans                   ERISA and sections 6058(a) and 6059(b)                participants and beneficiaries receiving
                                             applying for SFA are required to file an                 of the Code.                                          payment and terminated vested
                                             application with PBGC with the                              Merged plan means merged plan as                   participants) required to be entered on
                                             required information under part 4262.                    defined in § 4231.2 of this chapter.                  such Form 5500 Schedule MB was less
                                             For payment of SFA, they are required                       Merger means merger as defined in                  than 2 to 3.
                                             to include with an application for SFA,                  § 4231.2 of this chapter.                                (4) Insolvent plans. The plan became
                                             common form SF 3881, ACH Vendor/                            SFA coverage period means the                      insolvent for purposes of section 418E
                                             Miscellaneous Payment Enrollment,                        period beginning on the plan’s SFA                    of the Code after December 16, 2014,
                                             OMB control no. 1530–0069.                               measurement date and ending on the                    and has remained insolvent and has not
                                                                                                      last day of the last plan year ending in              terminated under section 4041A of
                                             List of Subjects in 29 CFR Part 4262                     2051.                                                 ERISA as of March 11, 2021.
                                                Employee benefit plans, Pension                          SFA measurement date for a plan                       (b) Specified year. For purposes of
                                             insurance, Pensions, Reporting and                       other than a plan described in                        this section, the term specified year
                                             recordkeeping requirements.                              § 4262.4(g) means the last day of the                 means a plan year specified by the plan
                                             ■ For the reasons given above, PBGC
                                                                                                      third calendar month immediately                      sponsor beginning in 2020, 2021, or
                                             adopts as final the portion of the interim               preceding the date the plan’s initial                 2022. The specified years for paragraphs
                                             final rule adding 29 CFR part 4262,                      application for special financial                     (a)(3)(i) through (iii) of this section need
                                             which was published at 86 FR 36598 on                    assistance was filed.                                 not be the same.
                                                                                                         Special financial assistance or SFA                   (c) Additional rules for critical status
                                             July 12, 2021, and further amends 29
                                                                                                      means special financial assistance from               plans—(1) Elected status. Election of
                                             CFR part 4262 by revising the part to
                                                                                                      PBGC under section 4262 of ERISA.                     critical status under section 305(b)(4) of
                                             read as follows:
                                                                                                         Transfer and transfer of assets or                 ERISA does not satisfy the requirement
                                             PART 4262—SPECIAL FINANCIAL                              liabilities means transfer and transfer of            for the certification of critical status by
                                             ASSISTANCE BY PBGC                                       assets or liabilities as defined in                   the plan’s actuary under paragraph
                                                                                                      § 4231.2 of this chapter.                             (a)(3)(i) of this section.
                                             Sec.                                                                                                              (2) Percentage. The percentage
                                             4262.1 Purpose.                                          § 4262.3 Eligibility for special financial            calculated as—
                                             4262.2 Definitions.                                      assistance.                                              (i) The current value of net assets as
                                             4262.3 Eligibility for special financial                   (a) In general. Subject to all the                  of the first day of the plan year that was
                                                  assistance.                                         provisions of this section, a                         required to be entered on the Form 5500
                                             4262.4 Amount of special financial                       multiemployer plan is eligible for
                                                  assistance.
                                                                                                                                                            Schedule MB that was required to be
                                                                                                      special financial assistance in any of the            filed for a specified year; plus
                                             4262.5 PBGC review of plan assumptions.
                                             4262.6 Information to be filed.
                                                                                                      following cases:                                         (ii) The current value of withdrawal
                                             4262.7 Plan information.                                   (1) Critical and declining status plans.            liability due to be received by the plan
                                             4262.8 Actuarial and financial information.              The plan is in critical and declining                 on an accrual basis, reflecting a
                                             4262.9 Application for a plan with a                     status within the meaning of section                  reasonable allowance for amounts
                                                  partition.                                          305(b)(6) of ERISA for the specified                  considered uncollectible, as of the first
                                             4262.10 Processing applications.                         year; or                                              day of the plan year for the specified
                                             4262.11 PBGC action on applications.                       (2) Plans with a suspension of                      year in paragraph (c)(2)(i) of this section
                                             4262.12 Payment of special financial                     benefits. A suspension of benefits has                (if not already included in the current
                                                  assistance.                                         been approved with respect to the plan
                                             4262.13 Restrictions on special financial
                                                                                                                                                            value of net assets in paragraph
                                                                                                      under section 305(e)(9) of ERISA as of                (c)(2)(i)); divided by
                                                  assistance.
                                             4262.14 Permissible investments of special               March 11, 2021; or                                       (iii) The current liability attributable
                                                  financial assistance.                                 (3) Critical status plans. The plan:                to all benefits as of the first day of the
                                             4262.15 Reinstatement of benefits                          (i) Is certified to be in critical status           plan year required to be entered on the
                                                  previously suspended.                               within the meaning of section 305(b)(2)               Form 5500 Schedule MB specified in
                                             4262.16 Conditions for special financial                 of ERISA for a specified year; and                    paragraph (c)(2)(i) of this section.
                                                  assistance.                                           (ii) The percentage calculated under                   (d) Actuarial assumptions.
                                             4262.17 Other provisions.                                paragraph (c)(2) of this section was less             Determinations of eligibility under
                                                Authority: 29 U.S.C. 1302(b)(3), 1432.                than 40 percent; and                                  paragraph (a)(1) or (3) of this section
                                                                                                        (iii) The ratio of the total number of              must be made in accordance with the
                                             § 4262.1   Purpose.                                      active participants at the end of the plan            provisions in this paragraph (d).
                                               The purpose of this part is to                         year required to be entered on the Form                  (1) Certifications completed before
                                             prescribe rules governing applications                   5500 that was required to be filed for a              January 1, 2021. For certifications of
                                             for special financial assistance under                   specified year to the sum of inactive                 plan status completed before January 1,
                                             section 4262 of ERISA and related                        participants (retired or separated                    2021, PBGC will accept assumptions
                                             requirements.                                            participants receiving benefits, other                incorporated in the determination of
                                                                                                      retired or separated participants entitled            whether a plan is in critical status or
                                             § 4262.2   Definitions.                                  to future benefits, and deceased                      critical and declining status as
                                               The following terms are defined in                     participants whose beneficiaries are                  described in section 305(b) of ERISA
                                             § 4001.2 of this chapter: Code,                          receiving or are entitled to receive                  unless such assumptions are clearly
                                             controlled group, ERISA, fair market                     benefits) required to be entered on such              erroneous.
                                             value, IRS, multiemployer plan, PBGC,                    Form 5500 was less than 2 to 3; or, the                  (2) Certifications completed after




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                                             plan, and plan sponsor. In addition, for                 ratio of the total number of active                   December 31, 2020. For certifications of
                                             purposes of this part:                                   participants at the beginning of the plan             plan status completed after December
                                                Form 5500 means the Annual Return/                    year required to be entered on Form                   31, 2020, the determination of whether
                                             Report of Employee Benefit Plan                          5500 Schedule MB that was required to                 a plan is in critical status or critical and
                                             required to be filed for employee benefit                be filed for a specified year to the sum              declining status for purposes of
                                             plans under sections 104 and 4065 of                     of inactive participants (retired                     eligibility for special financial


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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                         41007

                                             assistance must be made using the                        means a plan that is eligible for special             benefits under 26 CFR 1.432(e)(9)–
                                             assumptions that the plan used in its                    financial assistance under § 4262.3(a)(2).            1(e)(3), assuming such reinstated
                                             most recently completed certification of                    (b) Projected SFA assets. The amount               benefits are paid beginning as of the
                                             plan status before January 1, 2021,                      of projected SFA assets for a plan is                 SFA measurement date and excluding
                                             unless such assumptions (excluding the                   determined by projecting special                      any benefit increases resulting from
                                             plan’s interest rate assumption) are                     financial assistance forward annually                 contribution increases agreed to on or
                                             unreasonable.                                            until the projected SFA assets are                    after July 9, 2021, as demonstrated by
                                               (3) Changes in assumptions. If a plan                  exhausted, using the following annual                 the execution of a document described
                                             determines that use of the assumptions                   cash flows:                                           in paragraph (c)(3) of this section;
                                             under paragraph (d)(2) of this section is                   (1) Benefits paid and expected to be                  (2) Administrative expenses paid and
                                             unreasonable, the plan’s application                     paid by the plan during the SFA                       expected to be paid by the plan during
                                             may include a proposed change in the                     coverage period, including any                        the SFA coverage period after the
                                             assumptions (excluding the plan’s                        reinstatement of benefits attributable to             projected SFA assets described in
                                             interest rate assumption), as described                  the elimination of reductions in a                    paragraph (b) of this section are fully
                                             in § 4262.5.                                             participant’s or beneficiary’s benefit due            exhausted, excluding the amount owed
                                                                                                      to a suspension of benefits under                     to PBGC under section 4261 of ERISA
                                             § 4262.4 Amount of special financial                     sections 305(e)(9) or 4245(a) of ERISA as             (which is added to the amount of
                                             assistance.                                              required under § 4262.15(a)(1), payment               special financial assistance in § 4262.12
                                                (a) In general—(1) Plans other than                   of previously suspended benefits under                determined as of the date special
                                             MPRA plans. Subject to paragraph (f) of                  § 4262.15(a)(2), and any restoration of               financial assistance is paid);
                                             this section and to the adjustment for                   benefits under 26 CFR 1.432(e)(9)–                       (3) Employer contributions paid and
                                             the date of payment as described in                      1(e)(3), assuming such reinstated                     expected to be paid to the plan during
                                             § 4262.12, the amount of special                         benefits are paid beginning as of the                 the SFA coverage period, excluding
                                             financial assistance for a plan that is not              SFA measurement date and excluding                    contribution rate increases agreed to on
                                             a MPRA plan is the lowest whole dollar                   any benefit increases resulting from                  or after July 9, 2021, as demonstrated by
                                             amount (not less than $0) for which, as                  contribution increases agreed to on or                the execution of a document increasing
                                             of the last day of each plan year during                 after July 9, 2021, as demonstrated by                a plan’s contribution rate. The
                                             the SFA coverage period, projected SFA                   the execution of a document described                 document referred to in this paragraph
                                             assets and projected non-SFA assets are                  in paragraph (c)(3) of this section;                  (c)(3) is either—
                                             both greater than or equal to zero.                         (2) Administrative expenses paid and                  (i) A collective bargaining agreement
                                                (2) MPRA plans. Subject to paragraph                  expected to be paid by the plan during                not rejected by the plan; or
                                             (f) of this section and to the adjustment                the SFA coverage period, excluding the                   (ii) A document reallocating
                                             for the date of payment as described in                  amount owed to PBGC under section                     contribution rates;
                                             § 4262.12, the amount of special                         4261 of ERISA (which is added to the                     (4) Withdrawal liability payments
                                             financial assistance for a MPRA plan is                  amount of special financial assistance in             made and expected to be made to the
                                             the greatest of the amount determined                    § 4262.12 determined as of the date                   plan during the SFA coverage period
                                             under paragraph (a)(1) of this section,                  special financial assistance is paid); and            taking into account a reasonable
                                             the amount determined under paragraph                       (3) Investment returns expected to be              allowance for amounts considered
                                             (a)(2)(i) of this section, and the amount                earned by amounts attributable to                     uncollectible;
                                             determined under paragraph (a)(2)(ii) of                 special financial assistance calculated                  (5) Other payments made and
                                             this section.                                            using the SFA interest rate described in              expected to be made to the plan
                                                (i) The amount determined under this                  paragraph (e)(2) of this section,                     (excluding the amount of financial
                                             paragraph (a)(2)(i) is the lowest whole                  excluding investment returns for the                  assistance under section 4261 of ERISA
                                             dollar amount (not less than $0) for                     plan year in which the sum of annual                  and special financial assistance to be
                                             which, as of the last day of each plan                   projected benefit payments and                        received by the plan) during the SFA
                                             year during the SFA coverage period,                     administrative expenses for the year                  coverage period; and
                                             projected SFA assets and projected non-                  exceeds the beginning-of-year projected                  (6) Investment returns expected to be
                                             SFA assets are both greater than or equal                SFA assets.                                           earned by assets not attributable to
                                             to zero, and, as of the last day of the                     (c) Projected non-SFA assets. The                  special financial assistance calculated
                                             SFA coverage period, the sum of                          amount of projected non-SFA assets for                using the non-SFA interest rate
                                             projected SFA assets and projected non-                  a plan is determined by projecting the                described in paragraph (e)(1) of this
                                             SFA assets is greater than the amount of                 fair market value of plan assets on the               section.
                                             such sum as of the last day of the                       SFA measurement date forward                             (d) Deterministic basis. The
                                             immediately preceding plan year.                         annually, using the following annual                  projections in paragraphs (b) and (c) of
                                                (ii) The amount determined under                      cash flows:                                           this section must be performed on a
                                             this paragraph (a)(2)(ii) is the present                    (1) Benefits paid and expected to be               deterministic basis using assumptions
                                             value of benefits paid and expected to                   paid by the plan during the SFA                       as described in paragraph (e) of this
                                             be paid by the plan during the SFA                       coverage period after the projected SFA               section. For a plan other than a plan
                                             coverage period attributable to the                      assets described in paragraph (b) of this             described in § 4262.4(g), the projections
                                             reinstatement of benefits under                          section are fully exhausted, including                must be based on the participant census
                                             § 4262.15(a)(1), payment of previously                   any reinstatement of benefits                         data used to prepare the plan’s actuarial
                                             suspended benefits under                                 attributable to the elimination of                    valuation report, either—
                                             § 4262.15(a)(2), and any restoration of                  reductions in a participant’s or




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                                                                                                                                                               (1) For the plan year in which occurs
                                             benefits under 26 CFR 1.432(e)(9)–                       beneficiary’s benefit due to a suspension             the plan’s SFA measurement date; or
                                             1(e)(3), calculated using the SFA                        of benefits under sections 305(e)(9) or                  (2) If there is no such report for that
                                             interest rate under paragraph (e)(2) of                  4245(a) of ERISA as required under                    plan year, for the preceding plan year.
                                             this section.                                            § 4262.15(a)(1), payment of previously                   (e) Actuarial assumptions. The
                                                (3) MPRA plan definition. For                         suspended benefits under                              amount of special financial assistance
                                             purposes of this section, MPRA plan                      § 4262.15(a)(2), and any restoration of               must be determined in accordance with


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                                             41008                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             generally accepted actuarial principles                  beginning on July 9, 2021, and ending                 then the amount of special financial
                                             and practices and the provisions in this                 on the SFA measurement date is limited                assistance is deemed to be $0 (zero).
                                             paragraph (e).                                           to the amount of special financial                       (6) Examples. The following examples
                                                (1) The non-SFA interest rate is the                  assistance that would have applied to                 illustrate the provisions of paragraph (f)
                                             lesser of the rate in paragraph (e)(1)(i) or             the plan on the SFA measurement date                  of this section.
                                             (ii) of this section.                                    if the events had not occurred, as                       (i) Example 1. Plan A applies for
                                                (i) The interest rate in this paragraph               determined in a reasonable manner.                    special financial assistance. If the
                                             (e)(1)(i) is the interest rate used for                     (ii) The special financial assistance of           limitation in paragraph (f)(1)(i) of this
                                             funding standard account purposes as                     a plan that experiences a merger event                section did not apply, Plan A would be
                                             projected in the plan’s most recently                    during the period described in                        entitled to special financial assistance in
                                             completed certification of plan status                   paragraph (f)(1)(i) of this section is                the amount of $20X. Before the SFA
                                             before January 1, 2021.                                  limited to the sum of the amounts of                  measurement date, but on or after July
                                                (ii) The interest rate in this paragraph              special financial assistance that would               9, 2021, Plan A transferred a portion of
                                             (e)(1)(ii) is the interest rate that is 200              have applied to the plans involved in                 its assets and liabilities to Plan B. If the
                                             basis points higher than the rate                        the merger on the SFA measurement                     transfer had not occurred, Plan A
                                             specified in section 303(h)(2)(C)(iii) of                date if the merger had not occurred, as               would, as of the SFA measurement date,
                                             ERISA (disregarding modifications                        determined in a reasonable manner. If                 be entitled to special financial
                                             made under section 303(h)(2)(C)(iv)) for                 any of the plans involved in the merger               assistance in the amount of $40X.
                                             the month in which such rate is the                      also experiences one or more of the                   Although an event described in
                                             lowest among the 4 calendar months                       events described in paragraph (f)(2), (3),            paragraph (f)(2) of this section occurred
                                             ending with the month in which the                       or (4) of this section during the period              with respect to Plan A, Plan A’s special
                                             plan’s initial application for special                   described in paragraph (f)(1)(i) of this              financial assistance is unaffected by the
                                             financial assistance is filed, taking into               section, the amount of special financial              limitation in paragraph (f)(1)(i) of this
                                             account only rates that have been issued                 assistance for that plan on the SFA                   section and is $20X. Plan B also applies
                                             by the IRS as of the day that is the day                 measurement date, determined as if the                for special financial assistance. If the
                                             before the date the plan’s initial                       merger had not occurred, must be                      limitation in paragraph (f)(1)(i) of this
                                             application is filed.                                    determined in accordance with                         section did not apply, Plan B would be
                                                (2) The SFA interest rate is the lesser               paragraph (f)(1)(i) of this section.                  entitled to special financial assistance in
                                             of the rate in paragraph (e)(2)(i) or (ii)                                                                     the amount of $30X. If the transfer from
                                                                                                         (2) Transfers. The event described in
                                             of this section.                                                                                               Plan A had not occurred, Plan B would,
                                                                                                      this paragraph (f)(2) is a transfer of
                                                (i) The interest rate in this paragraph                                                                     as of the SFA measurement date, be
                                                                                                      assets or liabilities (including a spinoff).
                                             (e)(2)(i) is the interest rate in paragraph                                                                    ineligible for special financial
                                             (e)(1)(i) of this section.                                  (3) Benefit increases. The event                   assistance. As a result of the event
                                                (ii) The interest rate in this paragraph              described in this paragraph (f)(3) is the             described in paragraph (f)(2) of this
                                             (e)(2)(ii) is the interest rate that is 67               execution of a plan amendment                         section, the limitation in paragraph
                                             basis points higher than the average of                  increasing accrued or projected benefits              (f)(1)(i) of this section reduces Plan B’s
                                             the rates specified in section                           under a plan, other than a restoration of             special financial assistance from $30X
                                             303(h)(2)(C)(i), (ii), and (iii) of ERISA                suspended benefits that satisfies the                 to $0.
                                             (disregarding modifications made under                   requirements of 26 CFR 1.432(e)(9)–                      (ii) Example 2. Plan C applies for
                                             section 303(h)(2)(C)(iv)) for the month                  1(e)(3).                                              special financial assistance. If the
                                             in which such average is the lowest                         (4) Contribution reductions. The event             limitation in paragraph (f)(1)(ii) of this
                                             among the 4 calendar months ending                       described in this paragraph (f)(4) is the             section did not apply, Plan C would be
                                             with the month in which the plan’s                       execution of a document reducing a                    entitled to special financial assistance in
                                             initial application for special financial                plan’s contribution rate (including any               the amount of $40X. Before the SFA
                                             assistance is filed, taking into account                 reduction in benefit accruals adopted                 measurement date, but on or after July
                                             only rates that have been issued by the                  simultaneously or arising from a pre-                 9, 2021, Plans A and B were merged into
                                             IRS as of the day that is the day before                 existing linkage between benefit                      existing Plan C. If the mergers had not
                                             the date the plan’s initial application is               accruals and contributions), but only if              occurred, Plan A would not be eligible
                                             filed.                                                   the plan does not demonstrate (in                     for special financial assistance, and Plan
                                                (3) The actuarial assumptions (other                  accordance with the special financial                 B and Plan C would be entitled,
                                             than the interest rate assumptions under                 assistance instructions on PBGC’s                     respectively, to $10X and $5X of special
                                             paragraphs (e)(1) and (2) of this section)               website at www.pbgc.gov) that the risk                financial assistance as of the SFA
                                             are those used for the plan’s most                       of loss to participants and beneficiaries             measurement date. As a result of the
                                             recently completed certification of plan                 is reduced (disregarding special                      merger event described in paragraph
                                             status before January 1, 2021, unless                    financial assistance) by execution of the             (f)(1)(ii) of this section, the limitation in
                                             such assumptions are unreasonable.                       document. The document referred to in                 paragraph (f)(1)(ii) of this section
                                                (4) If a plan determines that use of the              this paragraph (f)(4) is either—                      reduces Plan C’s special financial
                                             actuarial assumptions under paragraph                       (i) A collective bargaining agreement              assistance from $40X to $15X.
                                             (e)(3) of this section is unreasonable, the              not rejected by the plan; or                             (iii) Example 3. Plan A applies for
                                             plan’s application may include a                            (ii) A document reallocating                       special financial assistance. If the
                                             proposed change in the assumptions                       contribution rates.                                   limitation in paragraph (f)(1)(i) of this
                                             (excluding the interest rate assumptions                    (5) Effect of pre-event ineligibility. In          section did not apply, Plan A would be
                                             under paragraphs (e)(1) and (2) of this                  determining the amount of special                     entitled to special financial assistance in




jspears on DSK121TN23PROD with RULES3
                                             section), as described in § 4262.5.                      financial assistance that would have                  the amount of $10X. Before the SFA
                                                (f) Certain events—(1) General rules.                 applied to a plan if an event described               measurement date, but on or after July
                                             (i) The special financial assistance of a                in this paragraph (f) had not occurred,               9, 2021, projected benefits under Plan A
                                             plan that experiences one or more of the                 if the plan would have been ineligible                were increased. If the increase had not
                                             events described in paragraph (f)(2), (3),               for special financial assistance under                occurred, Plan A would, as of the SFA
                                             or (4) of this section during the period                 § 4262.3 in the absence of the event,                 measurement date, be ineligible for


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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                           41009

                                             special financial assistance. As a result                   (i) Withdraw the plan’s application in                (7) No supplement or withdrawal. If
                                             of the event described in paragraph                      accordance with § 4262.11(d) and file a               special financial assistance has not been
                                             (f)(3) of this section, applying the                     revised application as described in                   paid to or for the plan under the terms
                                             limitation in paragraph (f)(1)(i) of this                paragraph (g)(5) of this section; or                  of this part as in effect before August 8,
                                             section and in accordance with                              (ii) Not withdraw the plan’s                       2022, and the plan has not filed a
                                             paragraph (f)(5) of this section, Plan A                 application and have the application                  supplemented application as described
                                             is treated as being entitled to special                  reviewed under the terms of this part as              in paragraphs (g)(6) and (8) of this
                                             financial assistance of $0.                              in effect before August 8, 2022 as                    section, or withdrawn the plan’s
                                                (iv) Example 4. Plan A applies for                    described in paragraph (g)(7) of this                 application in accordance with
                                             special financial assistance. If the                     section.                                              § 4262.11(d), the application will be
                                             limitation in paragraph (f)(1)(i) of this                   (3) Withdrawn application. If the
                                                                                                                                                            reviewed under the terms of this part as
                                             section did not apply, Plan A would be                   plan’s application for special financial
                                                                                                      assistance was not pending as of August               in effect before August 8, 2022. The
                                             entitled to special financial assistance in
                                                                                                      8, 2022, because the application was                  amount of special financial assistance
                                             the amount of $10X. Before the SFA
                                             measurement date, but on or after July                   withdrawn, the plan may file a revised                for the plan will be determined under
                                             9, 2021, Plan A’s contribution rate was                  application as described in paragraph                 the terms of this part as in effect before
                                             reduced. Plan A’s benefit formula states                 (g)(5) of this section.                               August 8, 2022 and be subject to
                                             that the monthly benefit accrual for a                      (4) Denied application. If the plan’s              adjustment as described in § 4262.12(b).
                                             participant for a plan year is 2.0 percent               application for special financial                        (i) A plan that receives special
                                             of the contributions paid on behalf of                   assistance was not pending as of August               financial assistance as described under
                                             the participant for that plan year. Since                8, 2022, because the application was                  this paragraph (g)(7) may subsequently
                                             there is a pre-existing linkage between                  denied, the plan may file a revised                   file a supplemented application in
                                             benefit accruals and contributions, the                  application as described in paragraph                 accordance with paragraphs (g)(6) and
                                             event described in paragraph (f)(4) of                   (g)(5) of this section. Any revised                   (8) of this section.
                                             this section includes both the reduction                 application must address the reasons
                                                                                                      cited by PBGC for the denial.                            (ii) If the plan’s application is denied,
                                             in benefit accruals and the reduction in
                                                                                                         (5) Revised application. Any revised               the plan may file a revised application
                                             the contribution rate. If the contribution
                                                                                                      application for special financial                     as described in paragraph (g)(5) of this
                                             rate reduction and the reduction in
                                             benefit accruals had not occurred, Plan                  assistance filed by a plan under this                 section.
                                             A would, as of the SFA measurement                       paragraph (g) is processed in the same                   (8) Supplemented application special
                                             date, be entitled to special financial                   way as an initial application, and must               rules. (i) Except as provided in this
                                             assistance of $8X. Plan A does not                       demonstrate eligibility and the amount                paragraph (g)(8), the rules in §§ 4262.10
                                             provide a demonstration that the risk of                 of the plan’s special financial assistance            and 4262.11(a) and (b) and (f) and (g) for
                                             loss to participants and beneficiaries is                determined under the provisions of this               a revised application apply to a
                                             reduced (disregarding special financial                  part as in effect on August 8, 2022,                  supplemented application.
                                             assistance) due to the reduction in                      subject to adjustment as described in                    (ii) A supplemented application must
                                             contribution rate and the reduction in                   § 4262.12(a), and use the following base
                                                                                                                                                            not change the plan’s SFA measurement
                                             benefit accruals. As a result of the                     data:
                                                                                                         (i) The plan’s SFA measurement date                date, fair market value of assets, or
                                             events described in paragraph (f)(4) of                                                                        participant census data, or include a
                                             this section, the limitation in paragraph                determined as the last day of the
                                                                                                      calendar quarter immediately preceding                proposed change in assumptions, except
                                             (f)(1)(i) of this section reduces Plan A’s
                                                                                                      the date the plan’s initial application for           to propose a change to the plan’s
                                             special financial assistance from $10X
                                                                                                      special financial assistance was filed;               employer contribution assumption to
                                             to $8X.
                                                (g) Filers under the interim provisions                  (ii) The plan’s participant census data            exclude contribution rate increases
                                             of this part. If a plan’s application for                determined under this part as in effect               agreed to on or after July 9, 2021, as
                                             special financial assistance under the                   before August 8, 2022; and                            permitted under paragraph (c)(3) of this
                                             terms of this part as in effect before                      (iii) The plan’s non-SFA interest rate             section (in which case, the plan must
                                             August 8, 2022 was filed before that                     and SFA interest rate as determined                   exclude any benefit increases resulting
                                             date, the plan may choose to proceed in                  under paragraphs (e)(1) and (2) of this               from such contribution increases as
                                             accordance with paragraph (g)(1), (2),                   section.                                              required under paragraphs (b)(1) and
                                             (3), or (4) of this section (whichever                      (6) Supplemented application. Any                  (c)(1) of this section).
                                             applies).                                                supplemented application filed by a                      (iii) A supplemented application may
                                                (1) Approved application. If the plan’s               plan under this paragraph (g) must be                 be withdrawn and resubmitted at any
                                             application for special financial                        filed in accordance with paragraph                    time before PBGC denies or approves
                                             assistance was approved as of August 8,                  (g)(8) of this section and must be limited            the supplemented application. Any
                                             2022, the plan may—                                      to the changes and information                        withdrawal of a plan’s supplemented
                                                (i) Supplement the plan’s application                 specified in the supplemented special
                                                                                                                                                            application must be by written notice to
                                             as described in paragraphs (g)(6) and (8)                financial assistance instructions on
                                                                                                                                                            PBGC submitted by any person
                                             of this section after special financial                  PBGC’s website at www.pbgc.gov, about
                                                                                                                                                            authorized to submit an application for
                                             assistance is paid to or for the plan                    the determination of the amount of
                                                                                                                                                            the plan and in accordance with the
                                             under the terms of this part as in effect                special financial assistance under this
                                                                                                                                                            supplemented special financial
                                             before August 8, 2022; or                                part as of August 8, 2022 (including the
                                                                                                      interest rates in paragraph (e) of this               assistance instructions on PBGC’s
                                                (ii) Not supplement the plan’s




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                                                                                                      section), and the filer must agree to be              website at www.pbgc.gov.
                                             application.
                                                (2) Pending application. If the plan’s                bound by the provisions of this part                     (iv) If PBGC denies a plan’s
                                             application for special financial                        governing such a determination, in                    supplemented application, any new
                                             assistance was not approved,                             which case, special financial assistance              supplemented application filed by the
                                             withdrawn, or denied, and was pending,                   is subject to adjustment as described in              plan must address the reasons cited by
                                             as of August 8, 2022, the plan may—                      § 4262.12(c).                                         PBGC for the denial.


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                                             41010                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             § 4262.5 PBGC review of plan                               (2) PBGC will provide guidelines for                assistance under this part must include
                                             assumptions.                                             changed assumptions on PBGC’s                         a certification by the plan’s enrolled
                                                (a) In general. (1) As set forth in                   website at www.pbgc.gov.                              actuary.
                                             § 4262.3(d)(1), PBGC will accept the                                                                              (d) Clarifying and additional
                                             assumptions used by a plan to                            § 4262.6   Information to be filed.                   information. PBGC may require a plan
                                             determine eligibility for special                           (a) In general. An application for                 sponsor to file additional information,
                                             financial assistance under § 4262.3(d)(1)                special financial assistance must                     including information to clarify or
                                             unless PBGC determines that such                         include the information specified in this             verify information provided in the
                                             assumptions are clearly erroneous.                       section and §§ 4262.7 (plan information)              plan’s application. The plan sponsor
                                                (2) PBGC will accept the assumptions                  and 4262.8 (actuarial and financial                   must promptly file any such
                                             used by a plan to determine eligibility                  information); a copy of the executed                  information with PBGC upon request.
                                             for special financial assistance under                   plan amendment required under                            (e) Duty to amend plan and notify
                                             § 4262.3(d)(2) or to determine the                       paragraph (e)(1) of this section; a copy              PBGC. The plan sponsor of a plan
                                             amount of special financial assistance                   of the proposed plan amendment                        applying for special financial assistance
                                             under § 4262.4(e)(3) unless PBGC                         required under paragraph (e)(2) of this               must—
                                             determines that an assumption is                         section; and a completed checklist and                   (1) Amend the plan to include the
                                             unreasonable.                                            other information as described in the                 following special financial assistance
                                                (3) PBGC will accept a plan’s changes                 special financial assistance instructions             provision effective through the end of
                                             in assumptions under paragraph (c) of                    on PBGC’s website at www.pbgc.gov. If                 the last plan year ending in 2051:
                                             this section except to the extent that                   any of the information required for an                ‘‘Beginning with the SFA measurement
                                             PBGC determines that an assumption is                    application for special financial                     date selected by the plan in the plan’s
                                             individually unreasonable, or the                        assistance under this part is not                     application for special financial
                                             proposed changed assumptions are                         accurately completed or not filed with                assistance, notwithstanding anything to
                                             unreasonable in the aggregate.                           the application, PBGC may require the                 the contrary in this or any other
                                                (b) Reasonableness of assumptions.                    plan sponsor to file additional                       governing document, the plan shall be
                                             (1) Each of the actuarial assumptions                    information described under paragraph                 administered in accordance with the
                                             and methods used for the actuarial                       (d) of this section or PBGC may consider              restrictions and conditions specified in
                                             projections (excluding the interest rate                 the application incomplete. If the                    section 4262 of ERISA and 29 CFR part
                                             assumptions under § 4262.4(e)(1) and                     correction of an error or omission                    4262. This amendment is contingent
                                             (2)) must be reasonable in accordance                    requires a change to the amount of                    upon approval by PBGC of the plan’s
                                             with generally accepted actuarial                        special financial assistance requested,               application for special financial
                                             principles and practices, taking into                    the application will be considered                    assistance.’’
                                             account the experience of the plan and                   incomplete.                                              (2) If the plan suspended benefits
                                             reasonable expectations. The actuary’s                      (b) Required trustee signature. An                 under section 305(e)(9) or 4245(a) of
                                             selection of assumptions about future                    application for special financial                     ERISA, amend the plan to include
                                             covered employment and contribution                      assistance must—                                      provisions substantially similar to the
                                             levels (including contribution base units                   (1) Be signed and dated by an                      following to, in accordance with
                                             and contribution rates) may be based on                  authorized trustee, who is a current                  guidance issued by the Secretary of the
                                             information provided by the plan                         member of the board of trustees and                   Treasury under section 432(k) of the
                                             sponsor, which must act in good faith in                 who is authorized to sign on behalf of                Code, {I} reinstate benefits, as required
                                             providing the information.                               the board of trustees, or by another                  by § 4262.15(a)(1), and {II} make
                                                (2) If a plan has a change in                         authorized representative of the plan                 payments of previously suspended
                                             assumptions under paragraph (c) of this                  sponsor, with such signature                          benefits, as required by § 4262.15(a)(2):
                                             section, each of the actuarial                           accompanied by the printed name and                   ‘‘Effective as of the first month in which
                                             assumptions and methods (other than                      title of the signer; and                              special financial assistance is paid to
                                             the interest rate assumptions under                         (2) Include the following statements               the plan, the plan shall reinstate all
                                             § 4262.4(e)(1) and (2)) must be                          signed by an authorized trustee who is                benefits that were suspended under
                                             reasonable and the combination of those                  a current member of the board of                      section 305(e)(9) or 4245(a) of ERISA.
                                             actuarial assumptions and methods                        trustees, with such signature                         The plan shall pay each participant and
                                             (excluding the interest rate assumptions                 accompanied by the printed name and                   beneficiary that is in pay status as of the
                                             under § 4262.4(e)(1) and (2)) must also                  title of the signer: ‘‘Under penalty of               date special financial assistance is paid
                                             be reasonable.                                           perjury under the laws of the United                  to the plan the aggregate amount of the
                                                (c) Changes in assumptions. If a plan                 States of America, I declare that I am an             participant’s or beneficiary’s benefits
                                             determines that use of an assumption                     authorized trustee who is a current                   that were not paid because of the
                                             described in § 4262.3(d)(2) or                           member of the board of trustees of the                suspension, with no actuarial
                                             § 4262.4(e)(3) is unreasonable, the plan’s               [insert plan name] and that I have                    adjustment or interest. Such payment
                                             application may include a proposed                       examined this application, including                  shall be made [choose whichever
                                             change in the assumptions (excluding                     accompanying documents, and, to the                   applies: ‘in a lump sum no later than 3
                                             the plan’s interest rate assumptions                     best of my knowledge and belief, the                  months after the date the special
                                             under § 4262.4(e)(1) and (2)).                           application contains all the relevant                 financial assistance is paid to the plan,
                                                (1) The application for special                       facts relating to the application; all                irrespective of whether the participant
                                             financial assistance must—                               statements of fact contained in the                   or beneficiary dies after the date special
                                                                                                      application are true, correct, and not                financial assistance is paid’ or ‘in equal




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                                                (i) Describe why the original
                                             assumption is no longer reasonable;                      misleading because of omission of any                 monthly installments over a period of 5
                                                (ii) Propose to use a different                       material fact; and all accompanying                   years, commencing no later than 3
                                             assumption (the changed assumption);                     documents are what they purport to be.’’              months after the date the special
                                             and                                                         (c) Actuarial calculations. All                    financial assistance is paid to the plan,
                                                (iii) Demonstrate that the changed                    calculations that are required in an                  with all installments to be paid
                                             assumption is reasonable.                                application for special financial                     irrespective of whether the participant


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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                          41011

                                             or beneficiary survives to the end of the                or is listed on PBGC’s website at                        (6) Most recent rehabilitation plan (or
                                             5-year period’].’’                                       www.pbgc.gov as a plan in priority                    funding improvement plan, if
                                               (3) During any time in which an                        group 6, as defined under                             applicable), including all subsequent
                                             application is pending approval by                       § 4262.10(d)(2)(vi).                                  amendments and updates, and the
                                             PBGC, the plan sponsor must promptly                        (d) Plans with a suspension of                     percentage of total contributions
                                             notify PBGC in writing as soon as the                    benefits. If a plan previously suspended              received under each schedule of the
                                             plan sponsor becomes aware that any                      benefits under section 305(e)(9) or                   rehabilitation plan for the most recent
                                             material fact or representation contained                4245(a) of ERISA, its application must                plan year available. If the most recent
                                             in or relating to the application, or in                 include a description of how the plan                 rehabilitation plan does not include
                                             any supporting documents, is no longer                   will reinstate the benefits that were                 historical documentation of
                                             accurate, or that any material fact or                   previously suspended and a proposed                   rehabilitation plan changes (if any) that
                                             representation was omitted from the                      schedule showing aggregate amount and                 occurred in calendar year 2020 and
                                             application or supporting documents.                     timing of payments (in accordance with                later, these details must be provided in
                                               (f) Disclosure of information. Unless                  § 4262.15) to participants and                        a clearly identified supplemental
                                             confidential under the Privacy Act, all                  beneficiaries under the plan. The                     document.
                                             information that is filed with PBGC for                  proposed schedule should be prepared                     (7) Most recent Form 5500 and all
                                             an application for special financial                     assuming the effective date for                       schedules and attachments (including
                                             assistance under this part may be made                   reinstatement is the SFA measurement                  the audited financial statement).
                                             publicly available, at PBGC’s sole                       date and that payments for previously                    (8) Plan actuary’s certification of plan
                                             discretion, on PBGC’s website at                         suspended benefits described in                       status required under section 305(b)(3)
                                             www.pbgc.gov or otherwise publicly                       § 4262.15(a)(2) are paid or commence on               of ERISA completed for the 2018 plan
                                             disclosed. Except to the extent required                 the SFA measurement date. If the plan                 year and each subsequent annual
                                             by the Privacy Act, PBGC provides no                     restored benefits under 26 CFR                        certification of plan status completed
                                             assurance of confidentiality in any                      1.432(e)(9)–1(e)(3) before the SFA                    before the date the plan’s initial
                                             information or documentation included                    measurement date, the proposed                        application was filed, with
                                             in an application for special financial                  schedule should reflect the amount and                documentation supporting each
                                             assistance.                                              timing of payments of restored benefits               certification, which must include the
                                                                                                      and the effect of the restoration on the              projections and information required in
                                             § 4262.7   Plan information.
                                                                                                      benefits remaining to be reinstated.                  the special financial assistance
                                                (a) Basic information. An application                                                                       instructions on PBGC’s website at
                                                                                                         (e) Plan documentation. An
                                             for special financial assistance must                                                                          www.pbgc.gov.
                                                                                                      application must include all of the
                                             include all of the following information                                                                          (9) Most recent statement for each of
                                                                                                      following plan documentation:
                                             with respect to the plan and amount of                                                                         the plan’s cash and investment
                                                                                                         (1) Most recent plan document or
                                             special financial assistance requested:                                                                        accounts.
                                                (1) Name of the plan, Employer                        restatement of the plan document and
                                                                                                      all subsequent amendments adopted (if                    (10) Most recent plan financial
                                             Identification Number (EIN), and three-                                                                        statement (audited, or unaudited if
                                             digit Plan Number (PN).                                  any), including a copy of the executed
                                                                                                      plan amendment required under                         audited is not available).
                                                (2) Name of the individual filing the                                                                          (11) Bank account and other
                                             application and role of the individual                   § 4262.6(e)(1).
                                                                                                         (2) If the plan suspended benefits                 information necessary for electronic
                                             with respect to the plan.                                                                                      payment of funds.
                                                (3) Name, address, email, and                         under section 305(e)(9) or 4245(a) of
                                                                                                                                                               (12) All written policies and
                                             telephone number of the plan sponsor                     ERISA, a copy of the proposed plan
                                                                                                                                                            procedures governing withdrawal
                                             and the plan sponsor’s authorized                        amendment(s) required under
                                                                                                                                                            liability determination, assessment,
                                             representatives, if any.                                 § 4262.6(e)(2) and a certification by the
                                                                                                                                                            collection, settlement, and payment.
                                                (4) The total amount of special                       plan sponsor that the plan
                                             financial assistance requested under                     amendment(s) will be timely adopted.                  § 4262.8 Actuarial and financial
                                             § 4262.4(a)(1) or (2).                                   Such certification must be signed either              information.
                                                (b) Eligibility. An application must                  by all members of the plan’s board of                    (a) Required information. An
                                             identify the eligibility requirements in                 trustees or by one or more trustees duly              application for special financial
                                             § 4262.3 that the plan satisfies to be                   authorized to sign the certification on               assistance must include all of the
                                             eligible for special financial assistance.               behalf of the entire board and to commit              following actuarial and financial
                                             An application for a plan that is eligible               the board to timely adopting the                      information:
                                             under section 4262(b)(1)(C) of ERISA                     amendment after the plan’s application                   (1) For each plan year from the 2018
                                             must include a demonstration to                          for special financial assistance is                   plan year until the most recent plan year
                                             support that the plan meets the                          approved, with each signature                         for which the Form 5500 is required to
                                             eligibility requirements.                                accompanied by the printed name and                   be filed by the date the plan’s initial
                                                (c) Priority group identification. An                 title of the signer.                                  application for special financial
                                             application must identify any priority                      (3) Most recent trust agreement or                 assistance is filed, the projection of
                                             group under § 4262.10(d)(2) that the                     restatement of the trust agreement and                expected benefit payments as required
                                             plan is in. An application must include                  all subsequent adopted amendments (if                 to be attached to the Form 5500
                                             a demonstration to support the plan’s                    any).                                                 Schedule MB if the response to the
                                             inclusion in a priority group, unless the                   (4) Most recent IRS determination                  question at line 8b(1) of the Form 5500
                                             plan is insolvent under section 4245(a)                  letter.                                               Schedule MB is ‘‘Yes’’.




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                                             of ERISA, has implemented a                                 (5) Actuarial valuation reports                       (2) For a plan that has 10,000 or more
                                             suspension of benefits under section                     completed for the 2018 plan year and                  participants required to be entered on
                                             305(e)(9) of ERISA as of March 11, 2021,                 each subsequent actuarial valuation                   line 6f of the plan’s most recently filed
                                             is in critical and declining status (as                  report completed before the date the                  Form 5500 (as of the date the plan’s
                                             defined in section 305(b)(6) of ERISA)                   plan’s initial application for special                initial application for special financial
                                             and had 350,000 or more participants,                    financial assistance is filed.                        assistance is filed), a listing of the 15


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                                             41012                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             largest contributing employers and the                      (ii) For each plan year in the SFA                 beginning-of-year projected SFA assets)
                                             contribution amounts for each such                       coverage period: The projected amount                 and the projected fair market value of
                                             contributing employer for the most                       of contributions, projected withdrawal                SFA assets at the end of each plan year.
                                             recently completed plan year (before the                 liability payments reflecting a                          (6) For MPRA plans, the amount of
                                             date the plan’s initial application for                  reasonable allowance for amounts                      special financial assistance calculated
                                             special financial assistance is filed).                  considered uncollectible, and other                   under § 4262.4(a)(2)(i) and information
                                                (3) Historical plan financial                         payments expected to be made to the                   used to determine such amount, based
                                             information for the 2010 plan year                       plan.                                                 on a deterministic projection, including
                                             through the plan year immediately                           (iii) For each plan year in the SFA                all of the following information—
                                             preceding the date the plan’s initial                    coverage period: Payments described in                   (i) Special financial assistance
                                             application was filed that separately                    § 4262.4(b)(1) attributable to the                    calculated under § 4262.4(a)(2)(i)
                                             identifies: Total contributions; total                   reinstatement of benefits under                       determined as a lump sum as of the SFA
                                             contribution base units; average                         § 4262.15 that were previously                        measurement date.
                                             contribution rates; number of active                     suspended through the SFA                                (ii) All items identified in paragraphs
                                             participants at the beginning of each                    measurement date.                                     (a)(5)(ii) through (viii) of this section
                                             plan year; and other sources of non-                        (iv) For each plan year in the SFA                 that support the amount described in
                                             investment income, including, if                         coverage period: Benefit payments                     paragraph (a)(6)(i) of this section.
                                             applicable, withdrawal liability                         described in § 4262.4(b)(1) (including                   (7) For MPRA plans, if the amount
                                             payments collected, contributions from                   any benefits restored under 26 CFR                    calculated under § 4262.4(a)(2)(ii) is the
                                             reciprocity agreements, and other                        1.432(e)(9)–1(e)(3) and excluding the                 greatest amount calculated under
                                             sources of contributions or income not                   previously suspended benefits                         § 4262.4(a)(2), the amount of special
                                             already identified.                                      described in paragraph (a)(5)(iii) of this            financial assistance calculated under
                                                                                                      section), separately for current retirees             § 4262.4(a)(2)(ii) and information used
                                                (4) Information used to determine the
                                                                                                      and beneficiaries in pay status, current              to determine the amount under
                                             amount of the requested special
                                                                                                      terminated participants not yet in pay                § 4262.4(a)(2)(ii), based on a
                                             financial assistance, including all of the
                                                                                                      status, current active participants, and              deterministic projection, including all of
                                             following information—
                                                                                                      new entrants; and total benefit                       the following information—
                                                (i) Non-SFA interest rate required                                                                             (i) Special financial assistance
                                                                                                      payments paid and expected to be paid
                                             under § 4262.4(e)(1), including                                                                                calculated under§ 4262.4(a)(2)(ii)
                                                                                                      from projected SFA assets separately
                                             supporting details on how it was                                                                               determined as a lump sum as of the SFA
                                                                                                      from total benefit payments paid and
                                             determined, and SFA interest rate                                                                              measurement date.
                                                                                                      expected to be paid from non-SFA
                                             required under § 4262.4(e)(2), including                                                                          (ii) For each plan year in the SFA
                                                                                                      assets after the projected SFA assets are
                                             supporting details on how it was                         fully exhausted.                                      coverage period: Benefit payments
                                             determined.                                                 (v) For each plan year in the SFA                  described in § 4262.4(b)(1) (excluding
                                                (ii) Fair market value of plan assets                 coverage period: Administrative                       the previously suspended benefits
                                             determined as of the SFA measurement                     expenses paid and expected to be paid                 described in paragraph (a)(5)(iii) of this
                                             date; a certification from the plan                      (excluding the amount owed PBGC                       section), separately for current retirees
                                             sponsor with respect to the accuracy of                  under section 4261 of ERISA),                         and beneficiaries in pay status, current
                                             this amount, including information that                  separately for PBGC premiums and all                  terminated participants not yet in pay
                                             substantiates the asset value and any                    other administrative expenses; and total              status, current active participants, and
                                             projections to the SFA measurement                       administrative expenses paid and                      new entrants; and total benefit
                                             date (including details and supporting                   expected to be paid from projected SFA                payments paid or expected to be paid.
                                             rationale); and a reconciliation of the                  assets separately from total                          For each participant group except new
                                             fair market value of plan assets from the                administrative expenses paid and                      entrants: benefit payments after
                                             date of the most recent audited plan                     expected to be paid from non-SFA                      reinstatement (excluding the previously
                                             financial statement to the SFA                           assets after the projected SFA assets are             suspended benefits described in
                                             measurement date showing                                 fully exhausted.                                      paragraph (a)(5)(iii) of this section), the
                                             contributions, withdrawal liability                         (vi) For each plan year in the SFA                 reduced benefit payments under the
                                             payments, benefit payments,                              coverage period: The projected total                  approved benefit suspension, and the
                                             administrative expenses, and                             participant count at the beginning of the             difference due to the reinstatement of
                                             investment income.                                       year.                                                 benefits.
                                                (iii) For the calculation method used                    (vii) For each plan year in the SFA                   (iii) The present value, as of the SFA
                                             to determine the requested amount of                     coverage period: The projected                        measurement date using the SFA
                                             special financial assistance, the plan                   investment income earned by assets not                interest rate required under
                                             year in which the sum of annual                          attributable to special financial                     § 4262.4(e)(2), of the amounts described
                                             projected benefit payments and                           assistance based on the interest rate                 in paragraph (a)(5)(iii) of this section.
                                             administrative expenses for the year                     required under § 4262.4(e)(1) and the                    (iv) The present value, as of the SFA
                                             exceeds the beginning-of-year projected                  projected fair market value of non-SFA                measurement date using the SFA
                                             SFA assets.                                              assets at the end of each plan year.                  interest rate required under
                                                (5) The amount of special financial                      (viii) For each plan year in the SFA               § 4262.4(e)(2), of the difference in
                                             assistance calculated under                              coverage period: The projected                        benefit amounts due to the
                                             § 4262.4(a)(1) and information used to                   investment income earned by amounts                   reinstatement of benefits, as described
                                             determine such amount, based on a                        attributable to special financial                     in paragraph (a)(7)(ii) of this section.




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                                             deterministic projection, including all of               assistance based on the interest rate                    (8) Projected contributions and
                                             the following information—                               required under § 4262.4(e)(2) (excluding              withdrawal liability payments,
                                                (i) Special financial assistance                      investment returns for the plan year in               reflecting a reasonable allowance for
                                             calculated under § 4262.4(a)(1)                          which the sum of the annual projected                 amounts considered uncollectible, used
                                             determined as a lump sum as of the SFA                   benefit payments and administrative                   to calculate the requested special
                                             measurement date.                                        expenses for the year exceeds the                     financial assistance amount in § 4262.4,


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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                               41013

                                             including total contributions,                           status last completed before January 1,               (b)(2)(iii) of this section, the plan
                                             contribution base units, average                         2021 (excluding the plan’s non-SFA and                sponsor is not required to file that
                                             contribution rate(s), reciprocal                         SFA interest rates, which must be the                 information with its application for
                                             contributions (if applicable), additional                same as the interest rates required under             special financial assistance. For any
                                             contributions from the rehabilitation                    § 4262.4(e)(1) and (2)). For purposes of              such information not filed with the
                                             plan, and any other contributions, and                   this paragraph (b)(2), certain changes in             application, the plan sponsor must note
                                             number of active participants at the                     assumptions as described in the special               on the checklist described under
                                             beginning of each plan year. For                         financial assistance instructions on                  § 4262.6(a) when the information was
                                             withdrawal liability, separate                           PBGC’s website at www.pbgc.gov should                 filed.
                                             projections for withdrawn employers                      be reflected in the Baseline projection.                 (c) Rescission of partition order.
                                             and for future assumed withdrawals.                         (3) In accordance with the special                 Effective when special financial
                                                (9) A description of the development                  financial assistance instructions on                  assistance is paid under § 4262.12, and
                                             of the assumed future contributions                      PBGC’s website at www.pbgc.gov, a                     in a manner consistent with the
                                             (including assumed contribution rates)                   reconciliation of the change in the                   application procedure determined
                                             and future withdrawal liability                          requested special financial assistance                under paragraph (b) of this section—
                                             payments described in paragraph (a)(8)                   due to each changed assumption from                      (1) PBGC will rescind the partition
                                             of this section.                                         the Baseline to the requested special                 order; and
                                                (10) For a plan that has 350,000 or                   financial assistance amount in § 4262.4,                 (2) The plan sponsor must amend the
                                             more participants reported on line 6f of                 showing, for each assumption change                   plan to remove any provisions or
                                             its most recently filed Form 5500 (as of                 from the Baseline, a deterministic                    amendments that were required to be
                                             the date the plan’s initial application for              projection calculated in the same                     adopted under the partition order.
                                             special financial assistance is filed), the              manner as the requested amount in
                                             participant census data utilized by the                                                                        § 4262.10    Processing applications.
                                                                                                      § 4262.4.
                                             plan actuary in developing the cash                         (c) Information required for certain                  (a) In general. Any application for
                                             flow projections included in the                         events. An application for a plan with                special financial assistance for an
                                             application.                                             respect to which an event described in                eligible multiemployer plan must be
                                                (11) Documentation of a death audit                   § 4262.4(f) occurs on or after July 9,                filed by the plan sponsor in accordance
                                             to identify deceased participants that                   2021, must include the applicable                     with the provisions of this part and the
                                             was completed no earlier than 1 year                     information related to the event                      special financial assistance instructions
                                             before the plan’s SFA measurement                        specified in special financial assistance             on PBGC’s website at www.pbgc.gov.
                                             date, including identification of the                    instructions on PBGC’s website at                        (b) Method of filing. An application
                                             service provider conducting the audit                    www.pbgc.gov.                                         filed with PBGC under this part must be
                                             and a copy of the results of the audit                      (d) Information required for changed               made electronically in accordance with
                                             provided to the plan administrator by                    assumptions in supplemented                           the rules in part 4000 of this chapter.
                                             the service provider.                                    applications. Any supplemented                        The time period for filing an application
                                                (b) Information required for changed                                                                        under this part must be computed under
                                                                                                      application filed for a plan described in
                                             assumptions in initial and revised                                                                             the rules in subpart D of part 4000 of
                                                                                                      § 4262.4(g) must include the
                                             applications. An application for a plan                                                                        this chapter.
                                                                                                      information specified in the
                                             that proposes to change any assumption                                                                            (c) Where to file. (1) An application
                                                                                                      supplemented special financial
                                             used in the plan’s most recently                                                                               filed with PBGC under this part must be
                                                                                                      assistance instructions on PBGC’s
                                             completed certification of plan status                                                                         filed as described in § 4000.4 of this
                                                                                                      website at www.pbgc.gov.
                                             before January 1, 2021, must include all                                                                       chapter.
                                             of the following information:                            § 4262.9 Application for a plan with a                   (2) Section 432(k)(1)(D) of the Code
                                                (1) A table identifying which                         partition.                                            requires an application in a priority
                                             assumptions used in demonstrating the                       (a) In general. This section applies to            group under paragraph (d)(2) of this
                                             plan’s eligibility for special financial                 a plan partitioned under section 4233 of              section to be submitted to the Secretary
                                             assistance or in calculating the amount                  ERISA that is eligible for special                    of the Treasury. If the requirement in
                                             of special financial assistance differ                   financial assistance under § 4262.3(a)(2).            the preceding sentence applies to an
                                             from those assumptions used in the                       A partitioned plan is in priority group               application, PBGC will transmit the
                                             plan’s most recently completed                           2 for purposes of § 4262.10(d)(2).                    application to the Department of the
                                             certification of plan status before                         (b) Filing requirements. A plan                    Treasury on behalf of the plan.
                                             January 1, 2021, and detailed narrative                  sponsor of a partitioned plan filing an                  (d) When to file. Any initial
                                             explanations (with supporting rationale                  application for special financial                     application for special financial
                                             and information) as described in the                     assistance must—                                      assistance must be filed by December
                                             special financial assistance instructions                   (1) File one application for the                   31, 2025, and any revised application or
                                             on PBGC’s website at www.pbgc.gov as                     original plan and the successor plan.                 supplemented application must be filed
                                             to why any assumption used in the                           (2) Include in the application—                    by December 31, 2026. Any application
                                             certification is no longer reasonable and                   (i) A statement that the plan was                  other than a plan’s initial application or
                                             why the changed assumption is                            partitioned under section 4233 of                     a supplemented application is a revised
                                             reasonable.                                              ERISA;                                                application regardless of whether it
                                                (2) Deterministic cash flow projection                   (ii) A copy of the plan document and               differs from the initial application or
                                             (‘‘Baseline’’) in accordance with the                    other executed amendments required                    supplemented application.
                                             special financial assistance instructions                under paragraph (c)(2) of this section;                  (1) Processing system. To




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                                             on PBGC’s website at www.pbgc.gov that                   and                                                   accommodate expeditious processing of
                                             shows the amount of special financial                       (iii) The information required in                  many special financial assistance
                                             assistance that would be determined if                   §§ 4262.6 through 4262.8.                             applications in a limited time period:
                                             all underlying assumptions used in the                      (3) If a plan sponsor has already filed               (i) The number of applications
                                             projection were the same as those used                   with PBGC any of the required                         accepted for filing will be limited in
                                             in the actuarial certification of plan                   information described in paragraph                    such manner that, in PBGC’s estimation,


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                                             41014                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             each application can be processed                        earlier date specified on PBGC’s website                 (1) It is an application for a plan that
                                             within 120 days.                                         at www.pbgc.gov.                                      either—
                                                (ii) Plans specified in paragraph (d)(2)                 (v) Priority group 5. A plan is in                    (i) Is insolvent or expected to be
                                             of this section will be given priority to                priority group 5 if the plan is projected             insolvent under section 4245 of ERISA
                                             file an application before plans not                     to become insolvent under section 4245                within 1 year of the date the plan’s
                                             specified in paragraph (d)(2) of this                    of ERISA by March 11, 2026. The date                  application was filed; or
                                             section. Plans not specified in paragraph                a plan in priority group 5 may file an                   (ii) Has suspended benefits under
                                             (d)(2) of this section may not file an                   application will be specified on PBGC’s               section 305(e)(9) of ERISA as of March
                                             application before March 11, 2023.                       website at www.pbgc.gov at least 21                   11, 2021; and
                                                (iii) Notices on PBGC’s website at                    days in advance of such date, and such                   (2) The filer notifies PBGC before
                                             www.pbgc.gov will apprise potential                      date will be no later than February 11,               submitting the application that the
                                             filers of the current priority group(s) for              2023.                                                 application qualifies as an emergency
                                             which applications are being accepted                       (vi) Priority group 6. A plan is in                filing under this paragraph (f) in
                                             and whether PBGC is accepting                            priority group 6 if the plan is projected             accordance with instructions on PBGC’s
                                             applications for filing as well as other                 by PBGC to have a present value of                    website at www.pbgc.gov.
                                             information about priority groups and                    financial assistance payments under                      (g) Lock-in applications. (1) A lock-in
                                             filing.                                                  section 4261 of ERISA that exceeds                    application described in this paragraph
                                                (2) Priority groups. Until not later                  $1,000,000,000 if special financial                   (g), clearly and prominently identified
                                             than March 11, 2023, the plan sponsor                    assistance is not ordered. PBGC will list             as such, may be filed for a plan as its
                                             of an eligible multiemployer plan will                   the plans in priority group 6 on its                  initial application (thus establishing the
                                             be given priority to file an application                 website at www.pbgc.gov. The date a                   plan’s base data as provided under
                                             if the plan is in one of the priority                    plan in priority group 6 may file an                  § 4262.11(c)).
                                             groups in paragraphs (d)(2)(i) through                   application will be specified on PBGC’s                  (2) A lock-in application must—
                                             (vii) of this section, listed in order of                website at www.pbgc.gov at least 21                      (i) Except as provided in paragraph
                                             higher priority group to lower priority                  days in advance of such date, and such                (g)(2)(ii) of this section, be filed after
                                             group. A plan may not file an                            date will be no later than February 11,               March 11, 2023, and on or before
                                             application earlier than the beginning                   2023.                                                 December 31, 2025; or
                                             date specified for the plan’s priority                      (vii) Additional priority groups. PBGC                (ii) Be filed by a plan described in
                                             group. When applications for plans in a                  may add additional priority groups                    paragraphs (d)(2)(v) through (vii) of this
                                             priority group are accepted for filing,                  based on other circumstances similar to               section in accordance with the
                                             PBGC will continue to accept                             those described for the groups listed in              processing system described in
                                             applications for plans in a higher                       paragraphs (d)(2)(i) through (vi) of this             paragraphs (d)(1)(ii) and (iii) and (d)(2)
                                             priority group, subject to paragraph                     section. If added, additional priority                of this section at a time when PBGC is
                                             (d)(1) of this section.                                  groups and the date PBGC will begin                   not accepting applications for filing
                                                (i) Priority group 1. A plan is in                    accepting applications for such                       under paragraph (d)(1)(i) of this section.
                                                                                                      additional priority groups will be posted                (3) The lock-in application must—
                                             priority group 1 if the plan is insolvent
                                                                                                                                                               (i) Provide the information in
                                             or is projected to become insolvent                      in guidance on PBGC’s website at
                                                                                                                                                            § 4262.7(a)(1) through (3) and in the
                                             under section 4245 of ERISA by March                     www.pbgc.gov.
                                                                                                                                                            instructions for lock-in applications on
                                             11, 2022. A plan in priority group 1 may                    (e) Filing date. An application will be
                                                                                                                                                            PBGC’s website at www.pbgc.gov;
                                             file an application beginning on July 9,                 considered filed on the date it is                       (ii) Be signed in accordance with
                                             2021.                                                    submitted to PBGC if it is signed in                  § 4262.6(b); and
                                                (ii) Priority group 2. A plan is in                   accordance with § 4262.6(b) and meets                    (iii) Be filed in accordance with
                                             priority group 2 if the plan has                         the applicable requirements in                        paragraphs (a) through (c) of this section
                                             implemented a suspension of benefits                     paragraph (d) of this section, including              and the instructions for lock-in
                                             under section 305(e)(9) of ERISA as of                   that it can be accommodated in                        applications on PBGC’s website at
                                             March 11, 2021; or the plan is expected                  accordance with the processing system                 www.pbgc.gov.
                                             to be insolvent under section 4245 of                    described in paragraph (d)(1) of this                    (4) A lock-in application for a plan
                                             ERISA within 1 year of the date the                      section or the emergency filing process               that satisfies the requirements of this
                                             plan’s application was filed. A plan in                  described in paragraph (f) of this                    paragraph (g) is considered filed as the
                                             priority group 2 may file an application                 section. Otherwise, the application will              plan’s initial application and denied for
                                             beginning on January 1, 2022, or such                    not be considered filed and PBGC will                 incompleteness under § 4262.11(a)(2)(i).
                                             earlier date specified on PBGC’s website                 notify the applicant that the application                (h) Informal consultation. Nothing in
                                             at www.pbgc.gov.                                         was not properly filed, and that the                  this section prohibits a plan sponsor
                                                (iii) Priority group 3. A plan is in                  application must be filed in accordance               from contacting PBGC informally to
                                             priority group 3 if the plan is in critical              with the processing system and                        discuss a potential application for
                                             and declining status (as defined in                      instructions on PBGC’s website at                     special financial assistance.
                                             section 305(b)(6) of ERISA) and has                      www.pbgc.gov. References in this part to
                                             350,000 or more participants. A plan in                  a plan’s initial application are to the               § 4262.11    PBGC action on applications.
                                             priority group 3 may file an application                 plan’s first application that is                         (a) In general. Within 120 days after
                                             beginning on April 1, 2022, or such                      considered filed.                                     the date an initial, revised, or
                                             earlier date specified on PBGC’s website                    (f) Emergency filing. Beginning when               supplemented application for special
                                             at www.pbgc.gov.                                         PBGC accepts applications in priority                 financial assistance is properly and




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                                                (iv) Priority group 4. A plan is in                   group 2 described in paragraph (d)(2)(ii)             timely filed, PBGC will—
                                             priority group 4 if the plan is projected                of this section, and notwithstanding the                 (1) Approve the application and
                                             to become insolvent under section 4245                   processing system described in                        notify the plan sponsor of the payment
                                             of ERISA by March 11, 2023. A plan in                    paragraph (d)(1) of this section, an                  of special financial assistance in
                                             priority group 4 may file an application                 application may be accepted for filing                accordance with § 4262.12; or
                                             beginning on July 1, 2022, or such                       if—                                                      (2) Deny the application because—


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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                         41015

                                                (i) The application is incomplete, and                   (e) Denied applications. If PBGC                      (1) The amount required as
                                             notify the plan sponsor of the missing                   denies a plan’s application, an                       demonstrated by the plan sponsor on
                                             information; or                                          application submitted for a plan after                the application for such special
                                                (ii) An assumption is unreasonable, a                 the denial is a revised application. Any              financial assistance, determined under
                                             proposed change in assumption is                         revised application must address the                  § 4262.4 (under the terms of this part as
                                             individually unreasonable, or the                        reasons cited by PBGC for the denial.                 in effect before August 8, 2022) as of the
                                             proposed changed assumptions are                            (f) Revised applications. A plan’s                 SFA measurement date; plus
                                             unreasonable in the aggregate, and                       revised application is processed in the                  (2) Interest on the amount in
                                             notify the plan sponsor of the reasons                   same way as an initial application and                paragraph (b)(1) of this section from the
                                             for the determination; or                                must comply with the requirements in                  SFA measurement date to the SFA
                                                (iii) The plan is not an eligible                     this part for an initial application except           payment date at a rate equal to the
                                             multiemployer plan, and notify the plan                  that it must use the base data required               interest rate required under
                                             sponsor of the reasons the plan fails to                 in paragraph (c) of this section for the              § 4262.4(e)(1); plus
                                             be eligible for special financial                        initial application.                                     (3) The amount owed to PBGC under
                                             assistance; or                                              (g) Final agency action. PBGC’s                    section 4261 of ERISA determined as of
                                                (3) Fail to act on the application, in                decision on an application for special                the SFA payment date; minus
                                             which case the application is deemed                                                                              (4) Financial assistance payments
                                                                                                      financial assistance under this section is
                                             approved, and notify the plan sponsor                                                                          under section 4261 of ERISA received
                                                                                                      a final agency action under § 4003.22(b)
                                                                                                                                                            by the plan between the SFA
                                             of the payment of special financial                      of this chapter for purposes of judicial
                                                                                                                                                            measurement date and the SFA payment
                                             assistance in accordance with § 4262.12.                 review under the Administrative
                                                                                                                                                            date, with interest on each such
                                                (b) Incomplete application. PBGC will                 Procedure Act (5 U.S.C. 701 et seq.).
                                                                                                                                                            financial assistance payment from the
                                             consider an application incomplete
                                                                                                      § 4262.12 Payment of special financial                date thereof to the SFA payment date
                                             under paragraph (a)(2)(i) of this section
                                                                                                      assistance.                                           calculated at a rate equal to the interest
                                             unless the application accurately
                                                                                                         (a) Amount of special financial                    rate required under § 4262.4(e)(1).
                                             includes the information required to be                                                                           (c) Amount of additional special
                                             filed under this part and the special                    assistance under this part. The amount
                                                                                                      of special financial assistance to be paid            financial assistance under
                                             financial assistance instructions on                                                                           supplemented application. The amount
                                             PBGC’s website at www.pbgc.gov,                          by PBGC to or for a plan for which
                                                                                                      either an initial or a revised application            of additional special financial assistance
                                             including any additional information                                                                           to be paid by PBGC to or for a plan
                                             that PBGC requires under § 4262.6(d).                    for special financial assistance is filed
                                                                                                      on or after August 8, 2022, will be the               where the plan has received a prior
                                                (c) Application base data. For an                                                                           payment of special financial assistance
                                             eligible plan other than a plan described                total of—
                                                                                                         (1) The amount required as                         under the terms of this part as in effect
                                             in § 4262.4(g)—                                                                                                before August 8, 2022 will be the total
                                                (1) A plan’s base data are—                           demonstrated by the plan sponsor on
                                                                                                      the application for such special                      of—
                                                (i) The plan’s SFA measurement date                                                                            (1) The amount required as
                                             as defined under § 4262.2;                               financial assistance, determined under
                                                                                                                                                            demonstrated by the plan sponsor on
                                                (ii) The plan’s participant census data               § 4262.4 as of the SFA measurement
                                                                                                                                                            the application for such special
                                             as required to be used under § 4262.4(d);                date; plus
                                                                                                                                                            financial assistance (including any
                                             and                                                         (2) Interest on the amount in                      supplemented application filed after the
                                                (iii) The plan’s non-SFA interest rate                paragraph (a)(1) of this section from the             prior payment of special financial
                                             and SFA interest rate as determined                      SFA measurement date to the SFA                       assistance), determined under § 4262.4
                                             under § 4262.4(e)(1) and (2).                            payment date at a rate equal to the                   as of the SFA measurement date; minus
                                                (2) A plan’s base data are fixed by the               interest rate required under                             (2) The amount required as
                                             date the eligible plan’s initial                         § 4262.4(e)(2); plus                                  demonstrated by the plan sponsor on
                                             application for special financial                           (3) The amount owed to PBGC under                  the application for such special
                                             assistance is filed and must be used for                 section 4261 of ERISA determined as of                financial assistance, determined under
                                             any revised application for the plan. If                 the SFA payment date; minus                           § 4262.4 (under the terms of this part as
                                             the plan was not eligible for special                       (4) Financial assistance payments                  in effect before August 8, 2022) as of the
                                             financial assistance on such date, the                   under section 4261 of ERISA received                  SFA measurement date; plus
                                             plan’s base data will be fixed by the date               by the plan between the SFA                              (3) Interest on the excess of the
                                             the plan files a revised application and                 measurement date and the SFA payment                  amount in paragraph (c)(1) of this
                                             demonstrates eligibility for special                     date, with interest on each such                      section over the amount in paragraph
                                             financial assistance.                                    financial assistance payment from the                 (c)(2) of this section from the SFA
                                                (d) Withdrawn applications. (1) A                     date thereof to the SFA payment date                  measurement date to the payment date
                                             plan’s application for special financial                 calculated at a rate equal to the interest            of the additional special financial
                                             assistance may be withdrawn at any                       rate required under § 4262.4(e)(2).                   assistance at a rate equal to the interest
                                             time before PBGC denies or approves                         (b) Amount of special financial                    rate required under § 4262.4(e)(2).
                                             the application.                                         assistance under the interim provisions                  (d) Payment instructions. The plan
                                                (2) Any withdrawal of a plan’s                        of this part. The amount of special                   must include in its application payment
                                             application must be by written notice to                 financial assistance to be paid by PBGC               instructions in accordance with the
                                             PBGC submitted by any person                             to or for a plan for which neither an                 special financial assistance instructions
                                             authorized to submit an application for                  initial nor a revised application for                 on PBGC’s website at www.pbgc.gov.




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                                             the plan and in accordance with the                      special financial assistance is filed on or           PBGC may request additional
                                             special financial assistance instructions                after August 8, 2022 and there has not                information from the plan related to
                                             on PBGC’s website at www.pbgc.gov.                       been any previous payment of special                  PBGC’s payment of special financial
                                                (3) An application submitted for a                    financial assistance, and where a plan’s              assistance. Payment will be considered
                                             plan after the withdrawal of an                          application has not been supplemented,                made by PBGC when, in accordance
                                             application is a revised application.                    will be the total of—                                 with the payment instructions in the


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                                             41016                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             application, PBGC no longer has                          § 4262.13 Restrictions on special financial           investment predominantly to equity
                                             ownership of the amount being paid.                      assistance.                                           securities registered under section 12(b)
                                             Any adjustment for delay will be borne                     (a) In general. A plan that receives                of the Securities Exchange Act of 1934,
                                             by PBGC only to the extent that it arises                special financial assistance must be                  U.S. Treasury securities with less than
                                             while PBGC has ownership of the funds.                   administered in accordance with the                   one year to maturity date, cash and cash
                                                (e) Repayment of traditional financial                restrictions in this section and in                   equivalents described in paragraph
                                             assistance. If a plan described in                       § 4262.14.                                            (d)(5) of this section, and money market
                                             paragraph (a) or (b) of this section has                   (b) Restrictions and use of SFA.                    funds described in paragraph (d)(6) of
                                             an obligation to repay financial                         Special financial assistance received,                this section.
                                             assistance under section 4261 of ERISA,                  and any earnings thereon—                                (3) A debt security that has been
                                             PBGC will—                                                 (1) May be used by the plan only to                 resold in an offering pursuant to 17 CFR
                                                (1) Issue a written demand for                        make benefit payments and pay                         230.144A (Rule 144A under the
                                             repayment of financial assistance when                   administrative expenses;                              Securities Act of 1933), is investment
                                             the application is approved; and                           (2) Must be segregated from other plan              grade as described under paragraph (f)
                                                (2) Deduct the amount of financial                    assets as described in § 4262.14(a);                  of this section, and has not been issued
                                             assistance, including interest, that the                   (3) May be used before other plan                   by a foreign issuer as defined under 17
                                             plan owes PBGC from the special                          assets are used to make benefit                       CFR 240.3b–4(b).
                                             financial assistance before payment to                   payments and pay administrative                          (4) A debt instrument, as described
                                             the plan.                                                expenses; and                                         under paragraph (d) of this section, that
                                                (f) Date of payment of special                          (4) Must be invested in investment                  is no longer investment grade if it was
                                             financial assistance. (1) Special                        grade bonds or other investments as                   investment grade as described under
                                             financial assistance issued by PBGC will                 permitted by PBGC in § 4262.14.                       paragraph (f) of this section when
                                             be paid as soon as practicable upon                                                                            purchased by the plan for the portion of
                                                                                                      § 4262.14 Permissible investments of
                                             approval of the plan’s special financial                 special financial assistance.
                                                                                                                                                            special financial assistance invested in
                                             assistance application but not later than                                                                      investment grade fixed income
                                                                                                         (a) A plan that receives special                   securities.
                                             the earlier of—                                          financial assistance must segregate
                                                (i) Ninety days after a plan’s special                                                                         (d) For purposes of this section,
                                                                                                      special financial assistance assets and               investments in investment grade fixed
                                             financial assistance application is                      earnings thereon (‘‘amounts attributable
                                             approved by PBGC or deemed approved                                                                            income securities and cash are
                                                                                                      to special financial assistance’’) in an              investments in—
                                             under § 4262.11(a)(3); or                                account that is separate from the plan’s
                                                (ii) September 30, 2030.                                                                                       (1) A bond or other debt security that
                                                                                                      non-special financial assistance assets               pays a fixed amount or fixed rate of
                                                (2) References in this section to the                 and that is invested consistent with the              interest, is denominated in U.S. dollars,
                                             SFA payment date are to the date PBGC                    investment requirements of this section.              sold in an offering registered under the
                                             sends payment of special financial                          (b) Permissible investments for                    Securities Act of 1933, and is
                                             assistance, not the bank settlement date.                amounts attributable to special financial             investment grade as described under
                                                (g) Manner of payment. The payment                    assistance are—                                       paragraph (f) of this section.
                                             of special financial assistance to a plan                   (1) Investments in return-seeking                     (2) Shares held in a permissible fund
                                             will be made by PBGC in a lump sum                       assets as described under paragraph (c)               vehicle described under paragraph (g) of
                                             or substantially so and is not a loan                    of this section, not to exceed 33 percent             this section that abides by an
                                             subject to repayment obligations.                        of amounts attributable to special                    investment policy that restricts
                                             Notwithstanding the preceding                            financial assistance measured using fair              investment predominantly to securities
                                             sentence, the following payment                          market value as of—                                   described in this paragraph (d) that are
                                             obligations apply:                                          (i) Each day the plan purchases                    denominated in U.S. dollars and are
                                                (1) Special financial assistance is                   return-seeking assets, other than                     investment grade as defined under
                                             subject to recalculation or adjustment to                through the automatic re-purchase of                  paragraph (f) of this section.
                                             correct a clerical or arithmetic error.                  capital gains and reinvestment of                        (3) Securities issued, guaranteed or
                                             PBGC will, and plans must, make                          dividends; and                                        sponsored by the U.S. Government or its
                                             payments as needed to reflect any such                      (ii) At least one day during every                 designated agencies as required to be
                                             recalculation or adjustment in a timely                  rolling period of 12 consecutive months               entered as government securities on the
                                             manner.                                                  beginning from the date the plan                      Form 5500 Schedule H.
                                                (2) If PBGC determines that a payment                 receives special financial assistance.                   (4) Municipal securities defined in
                                             for special financial assistance to a plan                  (2) Investments in investment grade                section 3(a)(29) of the Securities
                                             exceeded the amount to which the plan                    fixed income securities and cash as                   Exchange Act of 1934 that are
                                             was entitled, any excess payment                         described in paragraph (d) of this                    investment grade as defined under
                                             constitutes a debt to the Federal                        section for all other amounts                         paragraph (f) of this section.
                                             Government. If not paid within 90                        attributable to special financial                        (5) Noninterest-bearing cash and
                                             calendar days after demand, PBGC may                     assistance.                                           interest-bearing cash equivalents as
                                             reduce the debt by any action permitted                     (c) For purposes of this section,                  required to be entered on the Form 5500
                                             by Federal statute. Except where                         investments in return-seeking assets are              Schedule H.
                                             otherwise provided by statutes or                        investments in—                                          (6) Money market funds regulated
                                             regulations, PBGC will charge interest                      (1) Common stock that is                           pursuant to 17 CFR 270.2a–7 (Rule 2a–
                                             and other amounts permitted on an                        denominated in U.S. dollars and                       7 under the Investment Company Act of




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                                             overdue debt in accordance with the                      registered under section 12(b) of the                 1940).
                                             Federal Claims Collection Standards (31                  Securities Exchange Act of 1934.                         (e) Fixed income securities described
                                             CFR parts 900 through 999). The date                        (2) Shares held in a permissible fund              under paragraph (d) of this section must
                                             from which interest is computed is not                   vehicle described in paragraph (g) of                 be considered investment grade (as
                                             extended by litigation or the filing of                  this section that abides by an                        described under paragraph (f) of this
                                             any form of appeal.                                      investment policy that restricts                      section) by a fiduciary, within the


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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                        41017

                                             meaning of section 3(21) of ERISA, who                   § 4262.15 Reinstatement of benefits                      (2) Prospective. A benefit or benefit
                                             is or seeks the advice of an experienced                 previously suspended.                                 increase must not be adopted during the
                                             investor (such as an Investment Adviser                     (a) In accordance with guidance                    SFA coverage period unless—
                                             registered under section 203 of the                      issued by the Secretary of the Treasury                  (i) The plan actuary certifies that
                                             Investment Advisers Act of 1940).                        under section 432(k) of the Code, a plan              employer contribution increases
                                                (f) Investment grade means securities                 with benefits that were suspended                     projected to be sufficient to pay for the
                                             for which the issuer (or obligor) has at                 under section 305(e)(9) or 4245(a) of                 benefit increase have been adopted or
                                             least adequate capacity to meet the                      ERISA must:                                           agreed to; and
                                             financial commitments under the                             (1) Reinstate any benefits that were                  (ii) Those increased contributions
                                             security for the projected life of the asset             suspended for participants and                        were not included in the determination
                                             or exposure. For purposes of this                        beneficiaries effective as of the first               of the special financial assistance.
                                             paragraph (f), adequate capacity to meet                 month in which the special financial                     (3) Request for exception. No earlier
                                             financial commitments means that the                     assistance is paid to the plan; and                   than 10 years after the end of the plan
                                             risk of default by the issuer (or obligor)                  (2) Make payments equal to the                     year in which the plan receives payment
                                             is low and the full and timely                           amounts of benefits previously                        of special financial assistance under
                                             repayment of principal and interest on                   suspended to any participants or                      § 4262.12, the plan sponsor may request
                                             the security is expected.                                beneficiaries who are in pay status as of             approval from PBGC for an exception
                                                (g) Permissible fund vehicle means an                 the date that the special financial                   from the conditions under paragraphs
                                             investment company or collective trust,                  assistance is paid.                                   (b)(1) and (2) of this section by
                                             that is—                                                    (b) A plan must make the payments in               demonstrating to the satisfaction of
                                                (1) An open-end investment company                    paragraph (a)(2) of this section either in:           PBGC that, taking into account the value
                                             registered on Form N–1A under section                       (1) A single lump sum no later than                of the proposed benefit or benefit
                                             8 of the Investment Company Act of                       3 months after the date that the special              increase, the plan will avoid insolvency.
                                             1940; or                                                 financial assistance is paid to the plan;             A request for PBGC approval of a
                                                (2) A unit investment trust (as defined               or                                                    proposed benefit or benefit increase
                                             in section 4(2) of the Investment                           (2) Equal monthly installments over a              must be submitted by the plan sponsor
                                             Company Act of 1940 and registered                       period of 5 years, with the first                     or its duly authorized representative
                                             under section 8 of such Act) the shares                  installment paid no later than 3 months               and must contain all of the following
                                             of which are listed and traded on a                      after the date that the special financial             identifying, actuarial, and financial
                                             national securities exchange, and that                   assistance is paid to the plan, with no               information:
                                             has been formed and operates under an                    installment payment adjusted for                         (i) Name, address, email, and
                                             exemptive order granted by the U.S.                      interest.                                             telephone number of the plan sponsor
                                                                                                         (c) The plan sponsor of a plan with                and the plan sponsor’s authorized
                                             Securities and Exchange Commission;
                                                                                                      benefits that were suspended under                    representatives, if any.
                                             or
                                                                                                      section 305(e)(9) or 4245(a) of ERISA                    (ii) The nine-digit employer
                                                (3) A collective trust fund that is                                                                         identification number (EIN) assigned to
                                                                                                      must issue a notice of reinstatement to
                                             maintained by a bank or trust company                                                                          the plan sponsor by the IRS and the
                                                                                                      participants and beneficiaries whose
                                             and that has been formed and operates                                                                          three-digit plan identification number
                                                                                                      benefits were previously suspended and
                                             pursuant to an exemption under section                                                                         (PN) assigned to the plan by the plan
                                                                                                      then reinstated in accordance with
                                             3(c)(11) of the Investment Company Act                                                                         sponsor, and, if different, the EIN and
                                                                                                      section 4262(k) of ERISA and section
                                             of 1940.                                                                                                       PN last filed with PBGC. If an EIN or PN
                                                                                                      432(k) of the Code. The requirements for
                                                (h) Permissible investments must not                                                                        has not been assigned, that should be
                                                                                                      the notice are in notice of reinstatement
                                             be supplemented by, and permissible                                                                            indicated.
                                                                                                      instructions available on PBGC’s
                                             fund vehicles cannot include,                                                                                     (iii) A certification by the enrolled
                                                                                                      website at www.pbgc.gov.
                                             derivatives or otherwise be leveraged in                                                                       actuary that the plan or any of its
                                             a way that could increase the risk of the                § 4262.16 Conditions for special financial            component parts received special
                                             permissible investment beyond the risk                   assistance.                                           financial assistance and the most recent
                                             associated with the market value of the                    (a) In general. A plan that receives                value of special financial assistance
                                             un-leveraged permissible investment.                     special financial assistance must be                  assets.
                                             Any notional derivative exposure, other                  administered in accordance with the                      (iv) The EIN assigned to the plan
                                             than exposure gained through a                           conditions in this section.                           sponsor by the IRS and the PN assigned
                                             permissible fund vehicle described                         (b) Benefit increases. This paragraph               to the plan by the plan sponsor of the
                                             under paragraph (g) of this section, must                (b) applies to benefits and benefit                   plan that applied for special financial
                                             be supported by liquid assets that are                   increases described in section                        assistance, if not the same as the EIN
                                             cash or cash equivalents denominated                     4022A(b)(1) of ERISA without regard to                and PN in paragraph (b)(3)(ii) of this
                                             in U.S. dollars.                                         the time the benefit or benefit increase              section.
                                                (i) This section is applicable to a plan              has been in effect. This paragraph (b)                   (v) A copy of the proposed benefit or
                                             that applies or has applied for special                  does not apply to the reinstatement of                benefit increase amendment.
                                             financial assistance under this part.                    benefits that were suspended under                       (vi) Most recent plan document or
                                             Notwithstanding the preceding                            section 305(e)(9) or 4245(a) of ERISA (as             restatement of the plan document and
                                             sentence, for a plan that received special               provided under § 4262.15) or a                        all subsequent amendments adopted (if
                                             financial assistance under this part in                  restoration of benefits under 26 CFR                  any).
                                             effect before August 8, 2022, this section               1.432(e)(9)–1(e)(3).                                     (vii) A copy of the most recent




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                                             will not apply unless and until the plan                   (1) Retrospective. A benefit or benefit             actuarial valuation performed for the
                                             files a supplemented application under                   increase must not be adopted during the               plan before the date of the plan’s
                                             this part. Before the date that the plan                 SFA coverage period if it is in whole or              submission of a request for approval
                                             files a supplemented application under                   in part attributable to service accrued or            under this paragraph (b)(3), and the
                                             this part, the rules under this section in               other events occurring before the                     actuarial valuation performed for each
                                             effect before August 8, 2022 apply.                      adoption date of the amendment.                       of the 2 plan years immediately


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                                             41018                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             preceding the most recent actuarial                         (C) Plan level benefit payments                    the plan sponsor by the IRS and the
                                             valuation.                                               organized by participant type (e.g.,                  three-digit plan identification number
                                                (viii) A copy of the plan actuary’s                   active, retiree, terminated vested) for the           (PN) assigned to the plan by the plan
                                             most recent certification under section                  projection period.                                    sponsor, and, if different, the EIN and
                                             305(b)(3) of ERISA, including a detailed                    (D) Administrative expenses for the                PN last filed with PBGC. If an EIN or PN
                                             description of the assumptions used in                   projection period.                                    has not been assigned, that should be
                                             the certification, and the basis under                      (E) Assumed investment return                      indicated.
                                             which they were determined. The                          separately for special financial                         (iii) Name, address, email, and
                                             description must include information                     assistance and non-special financial                  telephone number of the contributing
                                             about the assumptions used for the                       assistance amounts.                                   employer for which the proposed
                                             projection of future contributions,                         (F) Fair market value of assets as of              contribution change is being submitted,
                                             withdrawal liability payments, and                       the end of the year.                                  and the employer’s authorized
                                             investment returns, and any other                           (xii) The present value of accrued                 representatives, if any.
                                             assumption that may have a material                      benefits.                                                (iv) Names and addresses of each
                                             effect on projections.                                      (xiii) Any additional information
                                                                                                                                                            controlled group member of the
                                                                                                      PBGC determines it needs to review a
                                                (ix) A statement certified by an                                                                            contributing employer identified in
                                                                                                      request for approval of a proposed
                                             enrolled actuary of the effect of the                                                                          paragraph (d)(2)(ii) of this section, along
                                                                                                      amendment, including any adjustments
                                             proposed benefit or benefit increase on                                                                        with a chart depicting the structure of
                                                                                                      to assumptions required by PBGC in its
                                             the plan’s existing benefit formula and                                                                        the controlled group by entity and its
                                                                                                      review of whether the plan is projected
                                             benefit amount, and a demonstration                                                                            ownership with ownership percentage.
                                                                                                      to avoid insolvency.
                                             that the expected contributions equal or                    (c) Allocation of plan assets. During                 (v) Audited financial statements
                                             exceed the estimated amount necessary,                   the SFA coverage period, plan assets,                 (income statement, balance sheet,
                                             taking into account the proposed benefit                 including special financial assistance,               cashflow statement, and notes) for the
                                             or benefit increase, to satisfy the                      must be invested in investment grade                  contributing employer and the
                                             minimum funding requirement of                           fixed income as described in                          controlled group including the
                                             section 431 of the Code.                                 § 4262.14(d) sufficient to pay for at least           contributing employer, if available, for
                                                (x) A detailed statement certified by                 1 year (or until the date the plan is                 the most recent 4 years, or, if audited
                                             an enrolled actuary that the plan is                     projected to become insolvent, if earlier)            financial statements were not prepared,
                                             projected to avoid insolvency, taking                    of projected benefit payments and                     unaudited financial statements, a
                                             into account the value of the proposed                   administrative expenses, taking into                  statement explaining why audited
                                             benefit or benefit increase. The                         account the limitations on derivatives                statements are not available, and tax
                                             statement must include the basis for the                 and leverage in § 4262.14(h).                         returns with all schedules for the most
                                             conclusion, supporting data,                                (d) Contribution decreases. (1) During             recent 4 years available. The financial
                                             calculations, assumptions, a description                 the SFA coverage period, the                          statement submissions must:
                                             of the methodology, the basis for                        contributions to a plan that receives                    (A) Identify the cash contributions to
                                             assumptions used, and the present value                  special financial assistance required for             the multiemployer plan for which the
                                             of the proposed benefit or benefit                       each contribution base unit must not be               contributing employer is seeking
                                             increase. The statement must also                        less than, and the definition of the                  contribution relief;
                                             specify the amount of the change in the                  contribution base units used must not                    (B) Identify all outstanding
                                             minimum required contribution under                      be different from, those set forth in                 indebtedness, including the name of the
                                             section 431 of the Code attributable to                  collective bargaining agreements or plan              lender, the amount of the outstanding
                                             the proposed benefit or benefit increase                 documents (including contribution                     loan, scheduled repayments interest
                                             for the first full plan year in which it is              increases to the end of the collective                rate, collateral, significant covenants,
                                             in effect, including the change in                       bargaining agreements) in effect on                   and whether the loan is in default;
                                             normal cost, the change in actuarial                     March 11, 2021, unless the plan sponsor                  (C) Identify and explain any material
                                             accrued liability and the annual                         determines that the change lessens the                changes in financial position since the
                                             amortization amount associated with                      risk of loss to plan participants and                 date of the last financial statement;
                                             the change in actuarial accrued liability.               beneficiaries and, if the contribution                   (D) To the extent that the contributing
                                                (xi) The statement in paragraph                       reduction affects over $10 million of                 employer has undergone or is in the
                                             (b)(3)(x) of this section must include an                annual contributions and over 10                      process of undergoing a partial
                                             exhibit showing the annual cash flow                     percent of all employer contributions,                liquidation, estimate the sales, gross
                                             projection for the plan for 30 years                     PBGC also determines that the change                  profit, and operating profit that would
                                             beginning on or after the proposed                       lessens the risk of loss to plan                      have been reported for each of the 3
                                             adoption date of the amendment. The                      participants and beneficiaries.                       years covered by the financial statement
                                             cash flow projection should use an open                     (2) A request for PBGC approval of a               for only that portion of the business that
                                             group valuation. Annual cash flow                        proposed contribution change that                     is currently expected to continue; and
                                             projections must reflect the following                   affects over $10 million of annual                       (E) State the estimated liquidation
                                             information:                                             contributions and over 10 percent of all              values for any assets related to
                                                (A) Fair market value of assets as of                 employer contributions must be                        discontinued operations or operations
                                             the beginning of the year, splitting the                 submitted by the plan sponsor or its                  that are not expected to continue, along
                                             assets by special financial assistance                   duly authorized representative and must               with the sources for the estimates.
                                             and non-special financial assistance                                                                              (vi) Projected financial statements




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                                                                                                      contain all of the following information:
                                             amounts.                                                    (i) Name, address, email, and                      (income statement, balance sheet, cash
                                                (B) Contributions and withdrawal                      telephone number of the plan sponsor                  flow statement) for the current year and
                                             liability payments made and expected to                  and the plan sponsor’s authorized                     the following 4 years as well as the key
                                             be made to the plan taking into account                  representatives, if any.                              assumptions underlying those
                                             a reasonable allowance for amounts                          (ii) The nine-digit employer                       projections and a justification for the
                                             considered uncollectible.                                identification number (EIN) assigned to               reasonableness for each of those key


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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                        41019

                                             assumptions. The projections must                           (iii) The actual cost of services                     (iii) A certification by the enrolled
                                             include:                                                 provided to the plan by an unrelated                  actuary that the plan or any of its
                                                (A) All business or operating plans                   third party; or                                       component parts received special
                                             prepared by or for management,                              (iv) Contributions where the                       financial assistance and the most recent
                                             including all explanatory text and                       contributions to a plan that receives                 value of special financial assistance
                                             schedules;                                               special financial assistance required for             assets.
                                                (B) All financial submissions, if any,                each base unit are not reduced, except                   (iv) The EIN assigned to the plan
                                             made within the prior 3 years to a                       as otherwise permitted by paragraph (d)               sponsor by the IRS and the PN assigned
                                             financial institution, government                        of this section.                                      to the plan by the plan sponsor of the
                                             agency, or investment banker in support                     (2) Request for exception. No earlier              plan that applied for special financial
                                             of possible outside financing or sale of                 than 5 years after the end of the plan                assistance, if not the same as the EIN
                                             the business;                                            year in which the plan receives payment               and PN in paragraph (e)(2)(ii) of this
                                                                                                      of special financial assistance under                 section.
                                                (C) All recent financial analyses done                                                                         (v) A copy of the proposed
                                             by an outside party with a certification                 § 4262.12, the plan sponsor may request
                                                                                                      approval from PBGC for an exception                   reallocation of contributions
                                             by the employer’s chief executive officer                                                                      amendment.
                                             that the information on which each                       from the conditions under paragraph (e)
                                                                                                                                                               (vi) Most recent plan document or
                                             analysis is based is accurate and                        of this section by demonstrating to the
                                                                                                                                                            restatement of the plan document and
                                             complete; and                                            satisfaction of PBGC that, taking into
                                                                                                                                                            all subsequent amendments adopted (if
                                                (D) Any other relevant information.                   account the value of any proposed
                                                                                                                                                            any).
                                                                                                      reallocation of contributions, the plan                  (vii) A copy of the most recent
                                                (vii) Description of events leading to
                                                                                                      will avoid insolvency, that the                       actuarial valuation performed for the
                                             the current financial distress.
                                                                                                      reallocation is needed due to a                       plan before the date of the plan’s
                                                (viii) Description of financial and                   significant increase in health benefit
                                             operational restructuring actions taken                                                                        submission of a request for approval
                                                                                                      costs due to a change in Federal law                  under this paragraph (e)(2), and the
                                             to address financial distress, including                 which goes into effect after March 11,
                                             cost cutting measures, employee count                                                                          actuarial valuation performed for each
                                                                                                      2021, that the reallocation is no more                of the 2 plan years immediately
                                             or compensation reductions, creditor                     than a 10 percent reduction in the
                                             concessions obtained, and any other                                                                            preceding the most recent actuarial
                                                                                                      amount of the contribution rate                       valuation.
                                             restructuring efforts undertaken; also,                  negotiated on or before March 11, 2021,
                                             indicate whether any new profit-sharing                                                                           (viii) A copy of the plan actuary’s
                                                                                                      that is allocable to the pension plan, and            most recent certification under section
                                             or other retirement plan has been or will                that the reallocation relating to any
                                             be established or if benefits under any                                                                        305(b)(3) of ERISA, including a detailed
                                                                                                      change in Federal law is for no more                  description of the assumptions used in
                                             such existing plan will be increased.                    than 5 years. A continuation of the
                                                (ix) Any additional information PBGC                                                                        the certification, and the basis under
                                                                                                      reallocation of contributions relating to             which they were determined. The
                                             determines it needs to review a request                  any change in Federal law after the
                                             for approval of a proposed contribution                                                                        description must include information
                                                                                                      initial reallocation beyond 5 years must              about the assumptions used for the
                                             change.                                                  satisfy the requirement for a                         projection of future contributions,
                                                (e) Allocating contributions and other                contribution decrease under paragraph                 withdrawal liability payments, and
                                             practices—(1) In general. During the                     (d) of this section. A subsequent change              investment returns, and any other
                                             SFA coverage period, a decrease in the                   in Federal law causing a significant                  assumption that may have a material
                                             proportion of income or an increase in                   increase in health benefit costs is a                 effect on projections.
                                             the proportion of expenses allocated to                  separate event for purposes of applying                  (ix) A statement certified by an
                                             a plan that receives special financial                   this exception, except that a plan may                enrolled actuary of the effect of the
                                             assistance pursuant to a written or oral                 reallocate contributions under this                   proposed reallocation of contributions
                                             agreement or practice (other than a                      exception from the conditions under                   on the plan’s existing contributions, and
                                             written agreement in existence on                        paragraph (e) of this section for no more             a demonstration that the expected
                                             March 11, 2021, to the extent not                        than 10 years cumulatively for all                    contributions equal or exceed the
                                             subsequently amended or modified)                        reallocation requests during the SFA                  estimated amount necessary, taking into
                                             under which the income or expenses are                   coverage period. A request for PBGC                   account the proposed reallocation of
                                             divided or to be divided between a plan                  approval of a proposed reallocation of                contributions, to satisfy the minimum
                                             that receives special financial assistance               contributions must be submitted by the                funding requirement of section 431 of
                                             and one or more other employee benefit                   plan sponsor or its duly authorized                   the Code.
                                             plans is prohibited. The prohibition in                  representative and must contain all of                   (x) A detailed statement certified by
                                             the preceding sentence does not apply                    the following identifying, actuarial, and             an enrolled actuary that the plan is
                                             to a good faith allocation of:                           financial information:                                projected to avoid insolvency, taking
                                                (i) Contributions pursuant to a                          (i) Name, address, email, and                      into account the value of the proposed
                                             reciprocity agreement;                                   telephone number of the plan sponsor                  reallocation of contributions. The
                                                (ii) Costs of securing shared space,                  and the plan sponsor’s authorized                     statement must include the basis for the
                                             goods, or services, where such                           representatives, if any.                              conclusion, supporting data,
                                             allocation does not constitute a                            (ii) The nine-digit employer                       calculations, assumptions, a description
                                             prohibited transaction under ERISA or                    identification number (EIN) assigned to               of the methodology, the basis for
                                             is exempt from such prohibited                           the plan sponsor by the IRS and the                   assumptions used, and the present value




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                                             transaction provisions pursuant to                       three-digit plan identification number                of the proposed reallocation of
                                             section 408(b)(2) or 408(c)(2) of ERISA,                 (PN) assigned to the plan by the plan                 contributions.
                                             or pursuant to a specific prohibited                     sponsor, and, if different, the EIN and                  (xi) The statement in paragraph
                                             transaction exemption issued by the                      PN last filed with PBGC. If an EIN or PN              (e)(2)(x) of this section must include an
                                             Department of Labor under section                        has not been assigned, that should be                 exhibit showing the annual cash flow
                                             408(a) of ERISA;                                         indicated.                                            projection for the plan for 30 years


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                                             41020                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             beginning on or after the proposed                       unreasonably increase PBGC’s risk of                  after the transaction, through the year
                                             adoption date of the amendment. The                      loss with respect to any plan involved                that each plan pays its last dollar of
                                             cash flow projection should use an open                  in the transaction, and is not reasonably             benefit (but not to exceed 100 years).
                                             group valuation. Annual cash flow                        expected to be adverse to the overall                 The cash flow projection should use an
                                             projections must reflect the following                   interests of the participants and                     open group valuation until the plan
                                             information:                                             beneficiaries of any of the plans                     reaches insolvency. Annual cash flow
                                                (A) Fair market value of assets as of                 involved in the transaction.                          projections must reflect the following
                                             the beginning of the year, splitting the                    (2) Request for approval. A request for            information:
                                             assets by special financial assistance                   approval of a proposed transfer of assets                (A) Fair market value of assets as of
                                             and non-special financial assistance                     or liabilities (including a spinoff) or               the beginning of the year, splitting the
                                             amounts.                                                 merger must be submitted by the plan                  assets by special financial assistance
                                                (B) Contributions and withdrawal                      sponsor or its duly authorized                        and non-special financial assistance
                                             liability payments expected to be made                   representative and must contain the                   amounts.
                                             to the plan taking into account a                        information that must be submitted with                  (B) Contributions and withdrawal
                                             reasonable allowance for amounts                         a notice of merger or transfer and a                  liability payments taking into account a
                                             considered uncollectible.                                request for a compliance determination                reasonable allowance for amounts
                                                (C) Plan level benefit payments                       under subpart A of part 4231 of this                  considered uncollectible.
                                             organized by participant type (e.g.,                     chapter and all of the following                         (C) Plan level benefit payments
                                             active, retiree, terminated vested) for the              information for each of the plans                     organized by participant type (e.g.,
                                             projection period.                                       involved in the transaction:                          active, retiree, terminated vested) for the
                                                (D) Administrative expenses for the                      (i) A certification by the enrolled                projection period.
                                             projection period.                                       actuary that the plan or any of its                      (D) Guaranteed benefits payable post
                                                (E) Assumed investment return                         component parts received special                      insolvency by participant type (e.g.,
                                             separately for special financial                         financial assistance and the most recent              active, retiree, terminated vested).
                                             assistance and non-special financial                     value of special financial assistance                    (E) Administrative expenses for the
                                             assistance amounts.                                      assets.                                               projection period.
                                                (F) Fair market value of assets as of                    (ii) A copy of the actuarial valuation                (F) Assumed investment return
                                             the end of the year.                                     performed for each of the 2 plan years                separately for special financial
                                                (xii) The present value of accrued                    before the most recent actuarial                      assistance and non-special financial
                                             benefits.                                                valuation filed in accordance with                    assistance amounts.
                                                (xiii) A demonstration that the                       § 4231.9(f) of this chapter.                             (G) Fair market value of assets as of
                                             reallocation is needed due to a                             (iii) A copy of the plan actuary’s most            the end of the year.
                                             significant increase in health benefit                   recent certification under section                       (vi) If the plan requests that PBGC
                                             costs due to a change in Federal law,                    305(b)(3) of ERISA, including a detailed              approve that a waiver of the conditions
                                             that the reallocation is no more than a                  description of the assumptions used in                in paragraph (b)(1) of this section
                                             10 percent reduction in the amount of                    the certification, and the basis under                (retrospective benefits), paragraph (d) of
                                             the contribution rate negotiated on or                   which they were determined. The                       this section (contribution decreases),
                                             before March 11, 2021, going to the                      description must include information                  and the condition in paragraph (e) of
                                             pension plan, and that the reallocation                  about the assumptions used for the                    this section relating to allocating
                                             is for no more than 5 years for a                        projection of future contributions,                   contributions and other income applies
                                             reallocation request relating to any                     withdrawal liability payments, and                    to the merged plan, a demonstration that
                                             single change in Federal law and no                      investment returns, and any other                     the requirements for a waiver in
                                             more than 10 years cumulatively for all                  assumption that may have a material                   paragraph (f)(4) of this section are met.
                                             reallocation requests during the plan’s                  effect on projections.                                   (vii) A detailed narrative description
                                             SFA coverage period.                                        (iv) A detailed narrative description              with supporting documentation
                                                (xiv) Any additional information                      demonstrating that the transaction does               demonstrating that the transaction is not
                                             PBGC determines it needs to review a                     not unreasonably increase PBGC’s risk                 reasonably expected to be adverse to the
                                             request for approval of a proposed                       of loss with respect to any plan involved             overall interests of the participants and
                                             amendment, including any adjustments                     in the transaction. The narrative must be             beneficiaries of any of the plans
                                             to assumptions required by PBGC in its                   supported by a detailed determination                 involved in the transaction. The
                                             review of whether the plan is projected                  certified by the enrolled actuary of the              narrative description and supporting
                                             to avoid insolvency.                                     present value of financial assistance                 documentation must consider the
                                                (f) Transfer or merger. During the SFA                under section 4261 of ERISA which is                  projected month and year of plan
                                             coverage period, a plan must not engage                  calculated using the guaranteed benefits              insolvency for each of the plans before
                                             in a transfer of assets or liabilities                   and administrative expenses presented                 and after the transaction.
                                             (including a spinoff) or merger except                   in the cash flow projections under                       (viii) Any additional information
                                             with PBGC’s approval. Notwithstanding                    paragraph (f)(2)(v) of this section,                  PBGC determines it needs to review a
                                             anything to the contrary in 29 CFR part                  discounted using interest rates                       request for approval of a proposed
                                             4231, the plans involved in the                          published under section 4044 of ERISA.                transfer of assets or liabilities (including
                                             transaction must request approval from                   The certification must include                        a spinoff) or merger.
                                             PBGC.                                                    supporting data, calculations,                           (3) Application of conditions with
                                                (1) In general. PBGC will approve a                   assumptions, a description of the                     respect to an approved transfer or
                                             proposed transfer of assets or liabilities               methodology, the basis for assumptions                merger. If PBGC approves a transfer of




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                                             (including a spinoff) or merger if PBGC                  used, and the projected date of                       assets and liabilities (that is not a
                                             determines that the transaction                          insolvency.                                           merger) from a plan that receives special
                                             complies with section 4231(a)–(d) of                        (v) The statement in paragraph                     financial assistance to another plan (the
                                             ERISA and that the transaction, or the                   (f)(2)(iv) of this section must include an            transferee plan) under this paragraph (f),
                                             larger transaction of which the transfer                 exhibit showing the annual cash flow                  the restrictions and conditions that
                                             or merger is a part, does not                            projections for each plan before and                  apply to the plan that receives special


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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                           41021

                                             financial assistance will also apply to                  benefits under subpart D of part 4211 of                 (i) The end of the tenth plan year after
                                             the transferee plan as determined by                     this chapter and determining                          the first plan year in which the plan
                                             PBGC as a condition of the approval. If                  withdrawal liability for employers that               receives payment of special financial
                                             PBGC approves a merger under this                        participated in that plan.                            assistance under § 4262.12; or
                                             paragraph (f), the restrictions and                         (4) Waiver of conditions with respect                 (ii) The end of the plan year described
                                             conditions that apply to a plan that                     to an approved merger. A plan may                     in paragraph (g)(1)(iii) of this section (if
                                             receives special financial assistance will               request a waiver of the condition in                  the special financial assistance most
                                             apply after the merger as follows:                       paragraph (b)(1) of this section                      recently paid to the plan as of the end
                                                (i) The restrictions in §§ 4262.13(b)                 (retrospective benefit increase),                     of that plan year is calculated under this
                                             and 4262.14 and the conditions in this                   paragraph (d) of this section                         part as in effect before August 8, 2022);
                                             paragraph (f) (transfer or merger),                      (contribution decreases), and the                     otherwise the end of the plan year
                                             paragraph (h) of this section                            condition in paragraph (e) of this                    described in paragraph (g)(1)(iv) of this
                                             (withdrawal liability settlement),                       section relating to allocating                        section.
                                             paragraph (i) of this section (annual                    contributions and other income for the                   (iii) The plan year described in this
                                             compliance statement), and paragraph                     merged plan in the plan’s request for                 paragraph (g)(1)(iii) is the plan year by
                                             (j) of this section (audit) apply to the                 PBGC’s approval of a merger pursuant to               which the plan is projected to exhaust
                                             merged plan.                                             paragraph (f)(1) of this section. If any of           any SFA assets as determined under the
                                                (ii) The conditions in paragraph (b)(2)               the plans involved in the merger engage               methodology of § 4262.4(b), applying
                                             of this section (prospective benefit                     in multiple transactions in any 1-year                the interest rate under § 4262.4(e)(2) to
                                             increase), paragraph (c) of this section                 period, the transactions will be                      the special financial assistance as
                                             (allocation of plan assets), and                         considered in the aggregate. The plan’s               determined as of the SFA measurement
                                             paragraph (e) of this section relating to                application must demonstrate the                      date as determined under this part as in
                                             allocating expenses do not apply to the                  following requirements for a waiver—                  effect before August 8, 2022. However,
                                             merged plan.                                                (i) The total current value of assets of           if the first plan year in which the plan
                                                (iii) In the absence of a waiver
                                                                                                      the plans that received special financial             receives payment of special financial
                                             described in paragraph (f)(4) of this
                                                                                                      assistance before the merger must be 25               assistance is after the plan year that
                                             section, the condition in paragraph
                                             (b)(1) of this section (retrospective                    percent or less of the total current value            includes the plan’s SFA measurement
                                             benefit increase) continues to apply to                  of assets of the merged plan, calculated              date, the plan year by which the plan is
                                             participants in the plan that received                   using the current value of assets most                projected to exhaust any SFA assets is
                                             special financial assistance before the                  recently required before the merger to be             deferred by the number of years by
                                             merger, the condition in paragraph (d)                   entered by the plans on the Form 5500                 which the first plan year in which the
                                             of this section (contribution decreases)                 Schedule MB.                                          plan receives payment is after the plan
                                             continues to apply to employers who                         (ii) The total current liability of the            year that includes the plan’s SFA
                                             had an obligation to contribute to the                   plans that received special financial                 measurement date.
                                             plan that received special financial                     assistance before the merger must be 25                  (iv) The end of the plan year by
                                             assistance before the merger, and the                    percent or less of the total current                  which, according to the plan’s
                                             condition in paragraph (e) of this                       liability of the merged plan, calculated              projection, the plan is projected to
                                             section relating to allocating                           using the current liability most recently             exhaust any SFA assets, as determined
                                             contributions and other income                           required before the merger to be entered              under § 4262.4(b). However, if the first
                                             continues to apply to contributions or                   by the plans on the Form 5500 Schedule                plan year in which the plan receives
                                             income relative to the plan that received                MB.                                                   payment of special financial assistance
                                             special financial assistance before the                     (iii) In the most recent certification of          is after the plan year that includes the
                                             date of the merger.                                      plan status for any plan that did not                 plan’s SFA measurement date, the plan
                                                (iv) For the condition described in                   receive special financial assistance                  year by which the plan is projected to
                                             paragraph (g)(1) of this section                         before the merger, the plan actuary must              exhaust any SFA assets is deferred by
                                             (withdrawal liability interest                           have certified that the plan is not in                the number of years by which the first
                                             assumption), the merged plan must use                    endangered or critical status (including              plan year in which the plan receives
                                             the interest assumptions in appendix B                   critical and declining status) and is not             payment of special financial assistance
                                             to part 4044 of this chapter to determine                projected to be in critical status within             is after the plan year that includes the
                                             the unfunded vested benefits that arose                  5 years from the date of the plan’s                   plan’s SFA measurement date.
                                             under the plan that received special                     request for approval, and the plan must                  (2) Phase-in of SFA—(i) In general. In
                                             financial assistance before the date of                  not be described in section 432(b)(5) of              determining unfunded vested benefits
                                             the merger for purposes of allocating                    the Code.                                             under section 4213(c) of ERISA (for the
                                             unfunded vested benefits under subpart                      (g) Withdrawal liability                           purpose of determining withdrawal
                                             D of part 4211 of this chapter and                       determination—(1) Interest                            liability), the procedures in this
                                             determining withdrawal liability for                     assumptions. A plan must use the                      paragraph (g)(2) must be followed.
                                             employers that participated in that plan.                interest assumptions in appendix B to                    (ii) Phase-in period. The procedures
                                                (v) For the condition described in                    part 4044 of this chapter in determining              in this paragraph (g)(2) apply to the
                                             paragraph (g)(2) of this section                         the unfunded vested benefits of the plan              determination of unfunded vested
                                             (withdrawal liability amount of special                  under section 4213(c) of ERISA (for the               benefits as of the end of any
                                             financial assistance required to be                      purpose of determining withdrawal                     determination year that is not earlier
                                             phased in), the merged plan must apply                   liability), and in determining the                    than the payment year or later than the




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                                             the special financial assistance phase-in                amortization schedule under section                   exhaustion year.
                                             condition to determine the unfunded                      4219(c)(1)(A) of ERISA, beginning with                   (iii) Determination year. For purposes
                                             vested benefits that arose under the plan                the first plan year in which the plan                 of this paragraph (g)(2), the
                                             that received special financial assistance               receives payment of special financial                 determination year is the plan year as of
                                             before the date of the merger for                        assistance under § 4262.12 and until the              the end of which unfunded vested
                                             purposes of allocating unfunded vested                   later of—                                             benefits are being valued.


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                                             41022                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                                (iv) Payment year. For purposes of                    number of years determined under                      application, Plan A is projected to
                                             this paragraph (g)(2), the payment year                  paragraph (g)(2)(x) of this section as of             exhaust its special financial assistance
                                             is the first plan year in which the plan                 the end of the determination year and                 assets during plan year 2028.
                                             receives special financial assistance.                   the denominator of which is the number                Accordingly, the payment year is 2024
                                                (v) Determination of exhaustion year.                 of years determined under paragraph                   and the exhaustion year is 2029 (the
                                             For purposes of this paragraph (g)(2), if                (g)(2)(xi) of this section as of the end of           projected SFA exhaustion year in the
                                             the special financial assistance most                    the determination year.                               application plus 1 year for the
                                             recently paid to the plan as of the last                    (x) Numerator. The number of years                 difference between the plan year that
                                             day of the determination year is                         determined under this paragraph                       includes the SFA measurement date and
                                             calculated under this part as amended                    (g)(2)(x) is the number of plan years in              the payment year). Employer P
                                             effective August 8, 2022, then the                       the period beginning with the                         withdraws from Plan A in 2028. For
                                             exhaustion year is the plan year                         determination year and ending with the                Employer P: {1} the determination year
                                             described in paragraph (g)(2)(vi) of this                exhaustion year.                                      is 2027; {2} the numerator of the phase-
                                             section; otherwise, the exhaustion year                     (xi) Denominator. The number of                    in fraction is 3 (2027 to 2029); {3} the
                                             is the plan year described in paragraph                  years determined under this paragraph                 denominator of the phase-in fraction is
                                             (g)(2)(vii) of this section.                             (g)(2)(xi) is the number of plan years in             6 (2024 to 2029); and {4} the phased in
                                                (vi) Exhaustion year. The plan year                   the period beginning with the payment                 amount is $500,000 ($1,000,000 × 3⁄6). If
                                             described in this paragraph (g)(2)(vi) is                year and ending with the exhaustion                   total assets (assuming no phased
                                             the plan year by which, according to the                 year.                                                 recognition of SFA) are $100,000,000,
                                             plan’s projection, the plan is projected                    (xii) Plan year. For purposes of this              unfunded vested benefits are based on
                                             to exhaust any SFA assets, as                            paragraph (g)(2), any reference to a plan             assets of $99,500,000.
                                             determined under § 4262.4(b). However,                   year means a complete plan year.
                                             if the first plan year in which the plan                    (xiii) No receivable. Special financial               (B) Example 2. Plan B, a calendar-year
                                             receives payment of SFA is after the                     assistance assets must be excluded from               plan, filed an application for special
                                             plan year that includes the plan’s SFA                   the determination of unfunded vested                  financial assistance under the terms of
                                             measurement date, the exhaustion year                    benefits until the date that special                  the interim provisions of this part with
                                             is deferred by the number of years by                    financial assistance is paid to the plan              an SFA measurement date in plan year
                                             which the payment year is after the plan                 under § 4262.12, and no receivable shall              2022 and received a special financial
                                             year that includes the plan’s SFA                        be set up as of any earlier date in                   assistance payment of $1,000,000 in
                                             measurement date.                                        anticipation of the plan receiving such               2022. According to the methodology
                                                (vii) Exhaustion year before any SFA                  payment.                                              under paragraph (g)(2) of this section
                                             paid under this part. The plan year                         (xiv) Reporting. For any withdrawal                and the information submitted in the
                                             described in this paragraph (g)(2)(vii) is               liability assessed during the phase-in                plan’s application under the interim
                                             the plan year by which the plan is                       period, the amount described under                    provisions of this part, Plan B is
                                             projected to exhaust any SFA assets,                     paragraph (g)(2)(ix) of this section must             projected to exhaust its special financial
                                             determined under the methodology of                      be reported in the plan’s annual                      assistance assets during plan year 2028.
                                             § 4262.4(b), applying the interest rate                  statement of compliance (as required                  However, Plan B files a supplemented
                                             under § 4262.4(e)(2) to the special                      under paragraph (i) of this section) for              application under this part in 2023 and
                                             financial assistance as determined as of                 the plan year in which the liability is               receives an additional special financial
                                             the SFA measurement date as                              assessed.                                             assistance payment of $100,000 in 2024.
                                             determined under this part as in effect                     (xv) Applicability. This paragraph                 In Plan B’s supplemented application,
                                             before August 8, 2022. However, if the                   (g)(2) applies to a plan in determining               the plan is projected to exhaust its
                                             first plan year in which the plan                        withdrawal liability for withdrawals                  special financial assistance assets
                                             receives payment of SFA is after the                     occurring after the plan year in which                during plan year 2030. Employer R
                                             plan year that includes the plan’s SFA                   the plan receives payment of special                  withdraws from Plan B in 2024, which
                                             measurement date, the exhaustion year                    financial assistance under this part.                 is after Plan B filed a supplemented
                                             is deferred by the number of years by                    Notwithstanding the preceding                         application. For Employer R: {1} the
                                             which the payment year is after the plan                 sentence, for a plan that received special            payment year is 2022; {2} the
                                             year that includes the plan’s SFA                        financial assistance under this part in               determination year is 2023; {3} the
                                             measurement date.                                        effect before August 8, 2022, this                    exhaustion year is 2028; {4} the
                                                (viii) SFA assets excluded. The value                 paragraph (g)(2) will not apply unless                numerator of the phase-in fraction is 6
                                             of the plan assets taken into account as                 the plan files a supplemented                         (2023 to 2028); {5} the denominator of
                                             of the end of each determination year is                 application under this part. If the plan              the phase-in fraction is 7 (2022 to 2028);
                                             the value of the assets that would                       files a supplemented application, this                and {6} the phased in amount is
                                             otherwise be taken into account in the                   paragraph (g)(2) applies to the plan in               $857,143 ($1,000,000 × 6⁄7). If total
                                             absence of this provision reduced by the                 determining withdrawal liability for                  assets (assuming no phased recognition
                                             amount described in paragraph (g)(2)(ix)                 withdrawals occurring on or after the                 of SFA) are $100,000,000, unfunded
                                             of this section.                                         date the plan files the supplemented                  vested benefits are based on assets of
                                                (ix) Calculation of SFA assets                        application.                                          $99,142,857. Employer S withdraws
                                             excluded. The amount described in this                      (xvi) Examples. The following                      from Plan B in 2028. For Employer S:
                                             paragraph (g)(2)(ix) is the total amount                 examples illustrate the provisions of                 {1} the payment year is 2022; {2} the
                                             of special financial assistance paid to                  paragraph (g)(2) of this section.                     determination year is 2027; {3} the
                                             the plan under § 4262.12 (as determined                     (A) Example 1. Plan A, a calendar-                 exhaustion year is 2030; {4} the




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                                             under § 4262.12(a) or (b), or under                      year plan, filed an application for                   numerator of the phase-in fraction is 4
                                             § 4262.12(b) and (c) for plans paid under                special financial assistance under this               (2027 to 2030); {5} the denominator of
                                             a supplemented application, as                           part with an SFA measurement date in                  the phase-in fraction is 9 (2022 to 2030);
                                             applicable) as of the end of the                         plan year 2023 and received a special                 and {6} the phased in amount is
                                             determination year multiplied by a                       financial assistance payment of                       $488,889 ($1,100,000 × 4⁄9). If total
                                             fraction, the numerator of which is the                  $1,000,000 in 2024. In the plan’s                     assets (assuming no phased recognition


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                                                                   Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations                                           41023

                                             of SFA) are $100,000,000, unfunded                          (ii) The nine-digit employer                       assistance through the last day of the
                                             vested benefits are based on assets of                   identification number (EIN) assigned to               plan year following the plan year in
                                             $99,511,111. If, instead of withdrawing                  the plan sponsor by the IRS and the                   which the plan received payment of
                                             in 2024, Employer R withdrew from                        three-digit plan number (PN) assigned to              special financial assistance, and must be
                                             Plan B in 2023 before Plan B filed its                   the plan by the plan sponsor, and, if                 filed no later than 90 days after the end
                                             supplemented application, the phase-in                   different, the EIN and PN last filed with             of such plan year.
                                             condition would not apply and                            PBGC. If an EIN or PN has not been                       (3) Each statement of compliance
                                             unfunded vested benefits would be                        assigned, that should be indicated.                   must be signed and dated by a trustee
                                             based on total assets of $100,000,000.                      (iii) A copy of the proposed                       who is a current member of the board
                                                (C) Example 3. Plan C, a calendar-year                settlement agreement.                                 of trustees and authorized to sign on
                                             plan, filed an application for special                      (iv) A description of the facts leading            behalf of the board of trustees, or by
                                             financial assistance under this part with                up to the proposed settlement,                        another authorized representative of the
                                             an SFA measurement date in plan year                     including—                                            plan sponsor.
                                             2024 and received a special financial                       (A) The date the employer withdrew                    (j) Audit. As authorized under section
                                             assistance payment of $1,000,000 in                      from the plan;                                        4003 of ERISA, PBGC may conduct
                                             2025. According to the plan’s                               (B) The calculation of the withdrawal              periodic audits of a plan that receives
                                             application, Plan C is projected to                      liability amount, including payment                   special financial assistance to review
                                             exhaust its SFA assets during plan year                  dates and amounts listed in the                       compliance with the terms and
                                             2024. Accordingly, the payment year is                   schedule for liability payments                       conditions of the special financial
                                             2025 and the exhaustion year is 2025                     provided to the withdrawn employer in                 assistance under this part and section
                                             (the projected SFA exhaustion year in                    accordance with section 4291(b)(1)(A) of              4262 of ERISA.
                                             the application plus 1 year for the                      ERISA;                                                   (k) Filing rules. The filing rules in this
                                             difference between the plan year that                       (C) The amount(s) and date(s) of                   paragraph (k) apply to a request for
                                             includes the SFA measurement date and                    withdrawal liability payments made;                   PBGC approval under paragraph (b), (d),
                                             the payment year). Employer T                            and                                                   (f), or (h) of this section and a statement
                                             withdraws from Plan C in 2026. For                          (D) How the proposed settlement
                                                                                                                                                            of compliance under paragraph (i) of
                                             Employer T: {1} the determination year                   amount was determined (discount rate
                                                                                                                                                            this section.
                                             is 2025; {2} the numerator of the phase-                 used, financial condition of the
                                                                                                                                                               (1) Method of filing. A filing described
                                             in fraction is 1 (2025 to 2025); {3} the                 employer, and other factors, as
                                                                                                                                                            under paragraph (b), (d), (f), (h), or (i) of
                                             denominator of the phase-in fraction is                  applicable).
                                                                                                         (v) Most recent 3 years of audited                 this section must be made electronically
                                             1 (2025 to 2025); and {4} the phased in                                                                        in accordance with the rules in part
                                             amount is $1,000,000 ($1,000,000 × 1⁄1).                 financial statements and a 5-year cash
                                                                                                      flow projection for the employer with                 4000 of this chapter. The time period for
                                             If total assets (assuming no phased                                                                            filing a request or statement of
                                             recognition of SFA) are $100,000,000,                    which the plan proposes to settle.
                                                                                                         (vi) A copy of the most recent                     compliance must be computed under
                                             unfunded vested benefits are based on                                                                          the rules in subpart D of part 4000 of
                                             assets of $99,000,000.                                   actuarial valuation report of the plan.
                                                                                                         (vii) A statement certifying the                   this chapter.
                                                (h) Withdrawal liability settlement. (1)                                                                       (2) Where to file. A filing described
                                             During the SFA coverage period, a plan                   trustees have determined that the
                                                                                                      proposed settlement is in the best                    under paragraph (b), (d), (f), (h), or (i) of
                                             must obtain PBGC approval for a                                                                                this section must be submitted as
                                             proposed settlement of withdrawal                        interest of the plan and the plan’s
                                                                                                      participants and beneficiaries.                       described in § 4000.4 of this chapter.
                                             liability if the amount of the liability
                                             settled is greater than $50 million                         (viii) Any additional information                  § 4262.17    Other provisions.
                                             calculated as the lesser of—                             PBGC determines it needs to review a
                                                                                                      request for approval of a proposed                       (a) Special financial assistance is not
                                                (i) The allocation of unfunded vested                                                                       capped by the guarantee under section
                                             benefits to the employer under section                   withdrawal liability settlement.
                                                                                                         (i) Reporting. In accordance with the              4022A of ERISA.
                                             4211 of ERISA; or                                                                                                 (b) A plan that receives special
                                                (ii) The present value of withdrawal                  statement of compliance instructions on
                                                                                                      PBGC’s website at www.pbgc.gov, a plan                financial assistance must continue to
                                             liability payments assessed for the
                                                                                                      sponsor must file with PBGC for each                  pay premiums due under section 4007
                                             employer discounted using the interest
                                                                                                      plan year, beginning with the plan year               of ERISA for participants and
                                             assumptions in appendix B to part 4044
                                                                                                      in which the plan received payment of                 beneficiaries in the plan.
                                             of this chapter.
                                                (2) PBGC will approve a proposed                      special financial assistance and through                 (c) A plan that receives special
                                             settlement of withdrawal liability if it                 the last plan year ending in 2051, a                  financial assistance is deemed to be in
                                             determines—                                              statement of compliance with the terms                critical status within the meaning of
                                                (i) Implementation of the settlement is               and conditions of the special financial               section 305(b)(2) of ERISA until the last
                                             in the best interests of participants and                assistance under this part and section                day of the last plan year ending in 2051.
                                             beneficiaries; and                                       4262 of ERISA as follows—                                (d) A plan that receives special
                                                (ii) The settlement does not create an                   (1) Except as provided in paragraph                financial assistance and subsequently
                                             unreasonable risk of loss to PBGC.                       (i)(2) of this section, a plan’s statement            becomes insolvent under section 4245
                                                (3) A request for approval of a                       of compliance for each plan year must                 of ERISA will be subject to the rules and
                                             proposed settlement of withdrawal                        be filed no later than 90 days after the              guarantee for insolvent plans in effect
                                             liability must be submitted by the plan                  end of the plan year.                                 when the plan becomes insolvent.
                                             sponsor or its duly authorized                              (2) If six months or fewer remain in                  (e) A plan that receives special




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                                             representative and must contain all of                   the plan year after the month that                    financial assistance is not eligible to
                                             the following information:                               includes the date the plan first received             apply for a suspension of benefits under
                                                (i) Name, address, email, and                         payment of special financial assistance,              section 305(e)(9) of ERISA.
                                             telephone number of the plan sponsor                     the first statement of compliance must                   (f) A plan that receives special
                                             and the plan sponsor’s authorized                        cover the period from the date the plan               financial assistance and meets the
                                             representatives, if any.                                 received payment of special financial                 eligibility requirements for partition of


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                                             41024                 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Rules and Regulations

                                             the plan under section 4233(b) of ERISA                  construed so as to continue to give the                 Issued in Washington, DC, by:
                                             may apply for partition.                                 maximum effect to the provision                       Gordon Hartogensis,
                                               (g) If any provision in this part is held              permitted by law, unless such holding                 Director, Pension Benefit Guaranty
                                             to be invalid or unenforceable by its                    will be one of utter invalidity or                    Corporation.
                                             terms, or as applied to any person or                    unenforceability, in which event the                  [FR Doc. 2022–14349 Filed 7–7–22; 8:45 am]
                                             circumstance, or stayed pending further                  provision will be severable from this                 BILLING CODE 7709–02–P
                                             agency action, the provision will be                     part.




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