Premium Rates; Payment of Premiums; Flat Premium Rates, Variable-Rate Premium Cap, and Termination Premium; Deficit Reduction Act of 2005; Pension Protection Act of 2006, 71222-71231 [E7-24423]

Agencies

• Pension Benefit Guaranty Corporation

[Federal Register Volume 72, Number 241 (Monday, December 17, 2007)]
[Rules and Regulations]
[Pages 71222-71231]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-24423]


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PENSION BENEFIT GUARANTY CORPORATION

29 CFR Parts 4006 and 4007

RIN 1212-AB10


Premium Rates; Payment of Premiums; Flat Premium Rates, Variable-
Rate Premium Cap, and Termination Premium; Deficit Reduction Act of 
2005; Pension Protection Act of 2006

AGENCY: Pension Benefit Guaranty Corporation.

ACTION: Final rule.

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SUMMARY: This is a final rule to amend PBGC's regulations on Premium 
Rates and Payment of Premiums to implement certain provisions of the 
Deficit Reduction Act of 2005 (Pub. L. 109-171) and the Pension 
Protection Act of 2006 (Pub. L. 109-280) that are effective beginning 
in 2006 or 2007. The

[[Page 71223]]

provisions implemented by this rule change the flat premium rate, cap 
the variable-rate premium in some cases, and create a new ``termination 
premium'' that is payable in connection with certain distress and 
involuntary plan terminations. This rule does not address other 
provisions of the Pension Protection Act of 2006 that deal with PBGC 
premiums.

DATES: Effective January 16, 2008.

FOR FURTHER INFORMATION CONTACT: John H. Hanley, Director, Legislative 
and Regulatory Department; or Catherine B. Klion, Manager, or Deborah 
C. Murphy, Attorney, Regulatory and Policy Division, Legislative and 
Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K 
Street, NW., Washington DC 20005-4026; 202-326-4024. (TTY/TDD users may 
call the Federal relay service toll-free at 1-800-877-8339 and ask to 
be connected to 202-326-4024.)

SUPPLEMENTARY INFORMATION: 

Background

    Pension Benefit Guaranty Corporation (PBGC) administers the pension 
plan termination insurance program under Title IV of the Employee 
Retirement Income Security Act of 1974 (ERISA). Pension plans covered 
by Title IV must pay premiums to PBGC. Section 4006 of ERISA deals with 
premium rates, and section 4007 of ERISA deals with the payment of 
premiums, including premium due dates, interest and penalties on 
premiums not timely paid, and persons liable for premiums.
    On February 8, 2006, the President signed into law the Deficit 
Reduction Act of 2005, Pub. L. 109-171 (DRA 2005). Section 8101 of DRA 
2005 amends section 4006 of ERISA. Section 8101(a) changes the per-
participant flat premium rate for plan years beginning in 2006 from $19 
to $30 for single-employer plans and from $2.60 to $8 for multiemployer 
plans and provides for inflation adjustments to the flat rates for 
future years. Section 8101(b) creates a new ``termination premium'' (in 
addition to the flat-rate and variable-rate premiums under section 
4006(a)(3)(A) and (E) of ERISA) that is payable for three years 
following certain distress and involuntary plan terminations that occur 
after 2005.
    On August 17, 2006, the President signed into law the Pension 
Protection Act of 2006, Public Law 109-280 (PPA 2006). Sections 401(b) 
and 402(g)(2)(B) of PPA 2006 make changes to the termination premium 
rules of DRA 2005. Section 405 of PPA 2006 amends section 4006 of ERISA 
to cap the variable-rate premium for plans of certain small employers 
beginning in 2007. (PPA 2006 also makes other changes affecting PBGC 
premiums that are not addressed in this rule.)
    On February 20, 2007, PBGC published (at 72 FR 7755) a proposed 
rule to amend PBGC's regulations on Premium Rates (29 CFR part 4006) 
and Payment of Premiums (29 CFR part 4007) to conform to these 
requirements of DRA 2005 and PPA 2006 and to clarify how the 
requirements apply. PBGC received one public comment on the proposed 
rule. The comment focused on the termination premium and is discussed 
below.

Flat-Rate Premium

    Until the enactment of DRA 2005, the flat-rate premium had remained 
unchanged for single-employer plans since 1991 and for multiemployer 
plans since 1989. Section 8101(a) of DRA 2005 amends section 
4006(a)(3)(A) of ERISA and adds new subparagraphs (F) and (G) to the 
end of section 4006(a)(3) of ERISA to raise the flat premium rates for 
2006 for both single- and multiemployer plans and to provide for 
inflation indexing for future years.

Applicability

    Before amendment by DRA 2005, section 4006(a)(3)(A) of ERISA 
provided (in part) that ``* * * the annual premium rate * * * is * * * 
in the case of a single-employer plan, for plan years beginning after 
December 31, 1990, an amount equal to the sum of $19 plus the [per-
participant variable-rate premium] under subparagraph (E) for each * * 
* participant * * *.'' Section 8101(a)(1)(A) of DRA 2005 changes 
``$19'' to read ``$30.'' Thus, the amended text of ERISA, read 
literally, makes it appear that the $30 single-employer flat-rate 
premium applies to plan years beginning after 1990. However, section 
8101(d)(1) of DRA 2005 (which does not amend ERISA) says that this 
change applies to plan years beginning after December 31, 2005. 
Accordingly, PBGC considers single-employer flat premium rates for plan 
years beginning before 2006 to be unaffected by DRA 2005.

Participant Count

    Section 8101(a)(2)(A)(ii) of DRA 2005 adds a new clause (iv) to 
section 4006(a)(3)(A) of ERISA providing that the flat premium rate for 
a multiemployer plan for a post-2005 plan year is ``$8.00 for each 
individual who is a participant in such plan during the applicable plan 
year.'' PBGC interprets this to mean that the participant count is to 
be taken as of the premium snapshot date described in the premium rates 
regulation and PBGC's premium instructions (generally the last day of 
the plan year preceding the premium payment year). This is consistent 
with PBGC's interpretation of the nearly identical language in existing 
section 4006(a)(3)(A)(i) of ERISA.

Flat Premium Rates

    This rule amends Sec.  4006.3 of the premium rates regulation to 
reflect the changes to the flat-rate premium made by section 8101(a) of 
DRA 2005. Existing paragraphs (a)(1) and (a)(2) of Sec.  4006.3 
(setting forth the $19 and $2.60 flat rates) are removed, and a cross-
reference to new Sec.  4006.3(c) is provided instead. Paragraph (1) of 
new Sec.  4006.3(c) provides pre-2006 rates ($19 and $2.60); paragraph 
(2) provides 2006 rates ($30 and $8); and paragraph (3) provides post-
2006 rates (the greater of the preceding year's rate or the inflation-
adjusted rate).

Inflation Adjustments

    Section 8101(a)(1)(B) and (2)(B) of DRA 2005 add to section 
4006(a)(3) of ERISA substantially identical new subparagraphs (F) and 
(G) providing for inflation adjustments to the $30 and $8 flat rates 
for plan years beginning after 2006. The adjustments are based on 
changes in the national average wage index as defined in section 
209(k)(1) of the Social Security Act, with a two-year lag--for example, 
for 2007, it will be the 2005 index that will be compared to the 
baseline (the 2004 index). However, new subparagraphs (F) and (G) are 
written in such a way that the premium rate can never go down; if the 
change in the national average wage index is negative, the premium rate 
remains the same as in the preceding year. Also, under new 
subparagraphs (F) and (G), premium rates are rounded to the nearest 
whole dollar. PBGC interprets this to mean that if the adjustment 
formula would produce an unrounded premium rate of some number of 
dollars plus 50 cents, the premium rate will be rounded up. The 
inflation adjustment is described in new Sec.  4006.3(d).

Variable-Rate Premium

    Section 405 of PPA 2006 amends section 4006(a)(3)(E)(i) of ERISA 
and adds new subparagraph (H) to the end of section 4006(a)(3) to cap 
the variable-rate premium for certain plans, effective for plan years 
beginning after 2006. This rule revises Sec.  4006.3(b) of the premium 
rates regulation to reflect the new cap.

Plans Covered

    Clause (i) of new section 4006(a)(3)(H) of ERISA says that the new 
variable-rate premium cap applies ``[i]n the case of an employer who 
has 25 or fewer

[[Page 71224]]

employees on the first day of the plan year.'' But clause (ii) of new 
section 4006(a)(3)(H) of ERISA makes clear that the applicability of 
the new cap does not necessarily depend on the size of a single 
employer, but rather depends on the size of a plan's controlled group, 
that is, the aggregate size of ``all contributing sponsors and their 
controlled groups.'' (See the definition of ``controlled group'' in 
Sec.  4001.2 of PBGC's regulation on Terminology (29 CFR Part 4001), 
which provides that ``[a]ny reference to a plan's controlled group 
means all contributing sponsors of the plan and all members of each 
contributing sponsor's controlled group''). Since a plan maintained by 
one contributing sponsor may or may not also be maintained by one or 
more other contributing sponsors that are not in the first sponsor's 
controlled group, the applicability of the cap must be determined plan 
by plan, not employer by employer. New Sec.  4006.3(b)(3) describes the 
plans eligible for the cap.

Meaning of ``Employee''

    New section 4006(a)(3)(H) of ERISA does not give guidance as to the 
meaning of the term ``employee.'' New Sec.  4006.3(b)(4) as added by 
this rule defines ``employee'' for this purpose by reference to section 
410(b)(1) of the Internal Revenue Code, which deals with minimum 
coverage requirements for qualified plans and requires that employees 
be counted to evaluate the breadth of coverage of a plan. For this 
purpose, certain individuals may be counted as ``employees'' although 
they might not be considered common law employees of the employer--for 
example, affiliated service group employees (under Code section 414(m)) 
and leased employees (under Code section 414(n)). PBGC considers this 
approach appropriate to prevent an employer from qualifying for the cap 
by artificially lowering its employee count through the use of 
sophisticated business structuring devices. In addition, in order to 
ensure that all employees are counted, new Sec.  4006.3(b)(4) provides 
that the employee count is to be determined without regard to Code 
section 410(b)(3), (4), and (5), which might be considered to exclude 
from the count collective bargaining employees, employees not meeting a 
plan's age and service requirements, and employees in separate lines of 
business.

Cap Amount

    Under new section 4006(a)(3)(H)(i) of ERISA, the per-participant 
variable-rate premium is capped at ``$5 multiplied by the number of 
participants in the plan as of the close of the preceding plan year.'' 
PBGC interprets this to mean that the participant count is to be taken 
as of the premium snapshot date described in the premium rates 
regulation and PBGC's premium instructions (generally the last day of 
the plan year preceding the premium payment year). This is consistent 
with PBGC's interpretation of the nearly identical language in existing 
section 4006(a)(3)(E)(i) of ERISA. This participant count is the same 
as the count used as a multiplier under section 4006(a)(3)(A)(i) of 
ERISA for purposes of both the flat- and variable-rate premiums. Thus, 
an eligible plan's total variable-rate premium is capped at an amount 
equal to $5 multiplied by the square of the participant count. The cap 
is described in new Sec.  4006.3 (b)(2), which includes an example of 
the computation of the cap taken from page 95 of the Technical 
Explanation of H.R. 4, the ``Pension Protection Act of 2006,'' as 
Passed by the House on July 28, 2006, and as Considered by the Senate 
on August 3, 2006, Prepared by the Staff of the Joint Committee on 
Taxation (August 3, 2006) (https://www.house.gov/jct/x-38-06.pdf).

Termination Premium

    Section 8101(b) of DRA 2005 adds a new paragraph (7) to the end of 
section 4006(a) of ERISA, creating a new ``termination premium'' that 
applies only where certain distress and involuntary terminations occur 
and then only for three years. However, although only section 4006 of 
ERISA is amended, subparagraph (D) of new paragraph (7) in effect 
modifies section 4007 of ERISA as well. Sections 401(b) and 
402(g)(2)(B) of PPA 2006 make changes to the termination premium rules 
of DRA 2005.

Termination Dates Covered

    Section 8101(d)(2)(A) of DRA 2005 (which does not amend ERISA) 
restricts the new termination premium to ``plans terminated after 
December 31, 2005.'' (Section 401(b)(1) of PPA 2006 repeals new section 
4006(a)(7)(E) of ERISA, added by DRA 2005, which provided that the 
termination premium would not apply ``with respect to any plan 
terminated after December 31, 2010.'') This time restriction is 
reflected in new Sec.  4007.13(a)(1) introductory text.
    Section 8101(d)(2)(B) of DRA 2005 further restricts the application 
of the new termination premium in certain bankruptcy situations. If a 
plan ``is terminated during the pendency of any bankruptcy 
reorganization proceeding under chapter 11 of title 11, United States 
Code (or under any similar law of a State or political subdivision of a 
State),'' the new premium does not apply ``if the proceeding is 
pursuant to a bankruptcy filing occurring before October 18, 2005.'' 
Under section 402(g)(2)(B)(ii) of PPA 2006, this limitation does not 
apply to an ``eligible plan'' under section 402(c)(1) of PPA 2006 
(generally a plan of a commercial passenger airline or airline catering 
service) while a funding election under section 402(a)(1) of PPA 2006 
is in effect for the plan. These provisions are in new Sec.  
4007.13(a)(2) and (3).
    These time restrictions on the applicability of the new premium 
turn on when a plan is ``terminated.'' PBGC believes that the most 
natural reading of these provisions is that the date to look to is the 
termination date under section 4048 of ERISA. Focusing on the section 
4048 termination date is also consistent with other provisions of DRA 
2005 and implementing regulations discussed below. This interpretation 
is reflected throughout the termination premium provisions added by 
this rule.

Types of Terminations Covered

    Under new section 4006(a)(7)(A) of ERISA, the termination premium 
applies where ``there is a termination of a single-employer plan under 
clause (ii) or (iii) of section 4041(c)(2)(B) [of ERISA] or section 
4042 [of ERISA].'' Section 4041(c) of ERISA provides for distress 
terminations; ERISA section 4042 provides for involuntary terminations.
    Under ERISA section 4041(c)(1), a distress termination of a plan 
may occur only if each contributing sponsor and each member of any 
contributing sponsor's controlled group meets one of the ``distress 
tests'' in clauses (i), (ii), and (iii) of section 4041(c)(2)(B). The 
tests are that the person is the subject of a bankruptcy liquidation 
proceeding (clause (i)), that the person is the subject of a bankruptcy 
reorganization proceeding (clause (ii)), or that the person is 
suffering business hardship (clause (iii)).
    Although typically all contributing sponsors and controlled group 
members meet the same distress test, that is not required for a 
distress termination under section 4041(c). Thus, while terminations 
where all contributing sponsors and controlled group members meet the 
test in clause (i) seem to be excluded from applicability of the 
termination premium, it is not clear from the statutory language 
whether the termination premium is to apply to terminations where one 
or more contributing sponsors and/or controlled group members meet the 
clause (i) test but others meet the tests in clauses (ii) and/or (iii). 
Examples of such situations

[[Page 71225]]

would be where there are two contributing sponsors, one liquidating and 
one reorganizing; where the sole contributing sponsor is liquidating 
but there are controlled group members that are reorganizing; and where 
the sole contributing sponsor is reorganizing but the controlled group 
members are liquidating.
    The statutory language provides no basis for distinguishing among 
these examples or others that might be cited. All contributing sponsors 
and controlled group members are liable for plan underfunding under 
ERISA section 4062 and (as discussed below) for the termination premium 
(if it applies), and they must all satisfy one or another distress test 
under ERISA section 4041(c)(2)(B) for a distress termination to take 
place. This suggests that all these entities should be considered 
responsible as a group for the consequences of plan termination and 
that the fact that one entity among several is liquidating should not 
shield the others from liability. PBGC thus interprets new section 
4006(a)(7)(A) of ERISA as applying the termination premium in any 
distress termination case where at least one contributing sponsor or 
controlled group member meets the distress test in either clause (ii) 
or (iii) of section 4041(c)(2)(B) (i.e., is not liquidating).
    New Sec.  4007.13(a)(1)(i) and (ii) deals with the types of 
terminations covered by the termination premium.

Payers

    Section 4007(a) of ERISA places responsibility for paying PBGC 
premiums on the ``designated payor'' of a plan, and section 
4007(e)(1)(A) of ERISA identifies the designated payor of a single-
employer plan as the contributing sponsor or plan administrator. 
However, new section 4006(a)(7)(D)(i)(II) of ERISA, as added by section 
8101(b) of DRA 2005, provides that notwithstanding section 4007, the 
designated payor of the new termination premium is ``the person who is 
the contributing sponsor as of immediately before the termination 
date.'' It thus appears that the designated payor is to be identified 
as of the day before the termination date under section 4048 of ERISA. 
Similarly, this rule provides for identification of members of the 
contributing sponsor's controlled group (which are jointly and 
severally liable for premiums under section 4007(e)(2) of ERISA) as of 
the same day. These provisions are in new Sec.  4007.13(g).

Participants

    Under new section 4006(a)(7)(A) of ERISA, the termination premium 
is based on the number of ``participants in the plan immediately before 
the termination date.'' It thus appears that participants are to be 
counted--for purposes of computing the termination premium--as of the 
day before the termination date under section 4048 of ERISA (the same 
day on which the contributing sponsor and controlled group members are 
determined). Section 4006.6 of the premium rates regulation already 
includes a definition of ``participant'' (which is used in computing 
the flat-rate premium), and DRA 2005 suggests no reason to depart from 
that definition for purposes of the termination premium. New Sec.  
4006.7(b) deals with these points.

Due Dates

    The termination premium is payable each year for three years. Under 
new section 4006(a)(7)(D)(i)(I) of ERISA, as added by section 8101(b) 
of DRA 2005, the new premium is due within 30 days after the beginning 
of each of three ``applicable 12-month periods,'' which are in turn 
described in new section 4006(a)(7)(C). New section 4006(a)(7)(C)(i)(I) 
provides that in general, the first applicable 12-month period starts 
with ``the first month following the month in which the termination 
date occurs.'' (From this it is evident that calendar months are 
meant.) Under new section 4006(a)(7)(C)(i)(II), the second and third 
applicable 12-month periods are simply the two 12-month periods that 
follow the first applicable 12-month period. The general rule regarding 
termination premium due dates is in new Sec.  4007.13(d).
    But new section 4006(a)(7)(C)(ii) of ERISA defers the beginning of 
the first applicable 12-month period (and thus the due dates) in 
certain bankruptcy reorganization cases. This deferral rule comes into 
play where ``the requirements of subparagraph (B) [of new section 
4006(a)(7) of ERISA] are met in connection with the termination of the 
plan . . ..'' (Section 401(b)(2) of PPA 2006 corrected an erroneous 
reference to ``subparagraph (B)(i)(I)'' in new section 
4006(a)(7)(C)(ii) of ERISA.) Subparagraph (B) of new section 
4006(a)(7)(B) of ERISA defers the applicability of the termination 
premium for distress or involuntary plan terminations that occur when 
bankruptcy reorganization proceedings are pending for terminations 
``under section 4041(c)(2)(B)(ii) [of ERISA] or under section 4042 [of 
ERISA].'' Following the same reasoning discussed above regarding new 
section 4006(a)(7)(A) of ERISA (the general termination premium 
applicability provision), PBGC concludes that the bankruptcy 
reorganization deferral provision in new section 4006(a)(7)(B) of ERISA 
is meant to apply to a distress termination only when at least one 
contributing sponsor or controlled group member satisfies the 
bankruptcy reorganization test in section 4041(c)(2)(B)(ii) .
    In order for the due date deferral rule in new section 
4006(a)(7)(C)(ii) of ERISA to apply, the requirements of subparagraph 
(B) of section 4006(a)(7) of ERISA must be met ``with respect to 1 or 
more persons described in such subparagraph'' (that is, one or more 
persons must be reorganizing in bankruptcy as described in subparagraph 
(B)). If so, then the first applicable 12-month period begins with 
``the first month following the month which includes the earliest date 
as of which each such person is discharged or dismissed in the case 
described in such clause [sic] in connection with such person.'' (The 
only clause mentioned in section 4006(a)(7)(C)(ii) of ERISA is clause 
(i)(I) of section 4006(a)(7)(C), which describes the first applicable 
12-month period that applies if the special bankruptcy rule does not. 
Thus the reference to ``such clause'' appears to be intended to refer 
to ``such subparagraph''--that is, subparagraph (B)--and PBGC so 
interprets the reference.)
    However, although subparagraph (B) of new section 4006(a)(7) of 
ERISA describes a case--a bankruptcy case--it does not describe a 
person. The only person mentioned in subparagraph (B) is ``such 
person,'' with no cross-reference to another place where the person is 
described. Nonetheless, it seems clear that the person referred to must 
be a person that has a relationship to both the plan and the bankruptcy 
proceeding mentioned in subparagraph (B). Subparagraph (B) contains 
parenthetical language that is essentially identical to parenthetical 
language that appears in section 4041(c)(2)(B)(ii) of ERISA (which 
describes the bankruptcy reorganization test for distress 
terminations). In section 4041(c)(2)(B)(ii), the words ``such person'' 
in the parenthetical language refer to a contributing sponsor or member 
of a contributing sponsor's controlled group. PBGC infers that ``such 
person'' in new section 4006(a)(7)(B) of ERISA is meant to refer 
likewise to a contributing sponsor of the terminated plan or member of 
a contributing sponsor's controlled

[[Page 71226]]

group--determined (consistent with the designated payor provision in 
new section 4007(a)(7)(D)(i)(II)) as of the day before the termination 
date under section 4048 of ERISA.
    This inference is supported by the observation that these same 
persons--contributing sponsors and controlled group members--are the 
persons liable for the termination premium. It appears that Congress's 
intent was to defer the due date for the termination premium until the 
persons liable to pay it were not in bankruptcy proceedings. 
Accordingly, where the special bankruptcy rule for due dates applies, 
it is necessary to identify every contributing sponsor and controlled 
group member that was involved in bankruptcy reorganization proceedings 
on the termination date and determine the date when each one left 
bankruptcy--through dismissal of or discharge in the proceeding--or 
ceased to exist. (If an entity ceases to exist, its failure to emerge 
from bankruptcy should not postpone the termination premium due date.) 
Under new section 4006(a)(7)(C)(ii), the first applicable 12-month 
period for the termination will then begin with the calendar month that 
next begins following the last such date.
    This bankruptcy due date deferral provision is in new Sec.  
4007.13(e).
    One due date issue not addressed by the statute is that the 
agreement or court action establishing a plan's termination date under 
ERISA section 4048 may occur well after the termination date so 
established. Where a termination date is thus set as a date in the 
past, one or more statutory due dates for the termination premium may 
already have passed when the termination date becomes known. Thus, 
termination premium payments could be overdue before it was determined 
that they were owed.
    In cases of that kind, PBGC considers it appropriate to provide 
that where the termination date set is in the past, the first 
applicable 12-month period does not begin immediately after the month 
in which the termination date falls, but rather begins immediately 
after the month in which the termination date is established. Where the 
special bankruptcy rule for due dates applies, this rule would come 
into play if the termination date was established after all 
contributing sponsors and controlled group members were out of 
bankruptcy reorganization proceedings, and would defer the beginning of 
the first applicable 12-month period until immediately after the month 
in which the termination date was established. This provision is in new 
Sec.  4007.13(f).

Other Bankruptcy Issues

    The parenthetical language in new section 4006(a)(7)(B) of ERISA--
``(or a case described in section 4041(c)(2)(B)(i) filed by or against 
such person has been converted, as of such date, to such a case in 
which reorganization is sought)''--shows that Congress focused on the 
fact that bankruptcy proceedings can be converted back and forth 
between liquidation and reorganization proceedings. But neither section 
4006(a)(7)(B) nor section 4006(a)(7)(C)(ii) (which describes the 
special first applicable 12-month period) mentions conversion of a 
reorganization case to a liquidation case as being sufficient to 
trigger the beginning of the first applicable 12-month period. It thus 
appears that if a plan terminates during pendency of a bankruptcy 
reorganization proceeding, the subsequent conversion of the proceeding 
to a liquidation proceeding would not keep the first applicable 12-
month period from being postponed until the (liquidation) bankruptcy 
proceeding was dismissed or the contributing sponsor or controlled 
group member discharged. This could be of significance where there were 
other persons liable for the termination premium that were not (or were 
no longer) in bankruptcy.
    Section 8101(d)(2)(B) of DRA 2005 (which, as discussed above, 
excludes from the termination premium terminations that occur during 
the pendency of bankruptcy reorganization proceedings pursuant to a 
filing before October 18, 2005) says nothing about the persons involved 
in such proceedings. Following the reasoning above, PBGC concludes that 
section 8101(d)(2)(B) is intended to apply only where the subject of a 
pending bankruptcy proceeding is a contributing sponsor of the 
terminated plan or a member of a contributing sponsor's controlled 
group (and that these persons are to be identified as of the day before 
the termination date under section 4048 of ERISA). Section 
8101(d)(2)(B) also does not mention conversion of a bankruptcy case 
from a liquidation proceeding to a reorganization, as new section 
4006(a)(7)(B) of ERISA does. But the language of section 8101(d)(2)(B) 
is consistent with the interpretation that--like section 
4006(a)(7)(B)--it covers bankruptcy proceedings begun as liquidation 
proceedings and converted to reorganization proceedings before the 
termination date under section 4048 of ERISA.

Termination Premium Rate

    Under new section 4006(a)(7) of ERISA as added by section 8101(b) 
of DRA 2005, the termination premium is $1,250 per participant per year 
for three years. But under section 402(g)(2)(B) of PPA 2006 (which does 
not amend ERISA), the rate is increased from $1,250 to $2,500 where a 
commercial passenger airline or airline catering service elects funding 
relief (an extended underfunding amortization period and lenient 
assumptions for valuing liabilities) for a frozen plan under section 
402(a)(1) of PPA 2006, if the plan terminates during the first five 
years of the funding relief period, unless the Secretary of Labor 
determines that the termination resulted from extraordinary 
circumstances such as a terrorist attack or other similar event.
    This rule adds a new Sec.  4006.7 to the premium rates regulation 
providing that the amount of the termination premium with respect to 
each applicable 12-month period is the premium rate (generally $1,250) 
times the number of participants, determined as of the day before the 
termination date, with a cross-reference from Sec.  4006.3 (where the 
flat and variable premium rates are set forth). New Sec.  4006.7(b) 
also explains the circumstances in which the termination premium rate 
is $2,500 rather than $1,250.

Filing Requirements

    New Sec.  4007.13(b) makes each contributing sponsor and controlled 
group member (determined as of the day before the termination date 
under section 4048 of ERISA) responsible for filing required 
termination premium information and payments, and (where there is more 
than one such person) provides that any one can file on behalf of all 
of them. This provision ensures that, so long as there is at least one 
person still in existence that is liable for the termination premium, 
there will be at least one identifiable entity with responsibility to 
file. This provision is similar to Sec.  4010.3 of PBGC's regulation on 
Annual Financial and Actuarial Information Reporting (Part 4010 of 
PBGC's regulations) and Sec.  4043.3(a) of PBGC's regulation on 
Reportable Events and Certain Other Notification Requirements (Part 
4043 of PBGC's regulations). Thus, only a single filing of the premium 
and required premium information is required, but if it is not timely 
made, PBGC could seek enforcement against any or all contributing 
sponsors and controlled group members.

[[Page 71227]]

Late Payment Penalty

    Section 4007.13(c) provides for a discretionary ``facts-and-
circumstances'' penalty for failure to pay the termination premium 
timely, instead of the automatic 1 percent or 5 percent penalty that 
applies to late payment of flat- and variable-rate premiums under Sec.  
4007.8(a). PBGC wants to preserve flexibility in penalizing failures to 
pay the new premium in full and on time while it gains experience with 
the new premium. The penalty is limited to 100 percent of the amount of 
termination premium not timely filed.

Other Regulatory Provisions

    In addition to the provisions discussed above, new Sec.  4007.13 
supplements provisions in existing sections of Part 4007 that also 
apply to the termination premium. This rule also amends several 
sections in the existing premium payment regulation to eliminate 
inconsistencies or potential inconsistencies between existing language 
in those sections and the termination premium provisions.

Public Comment

    PBGC received one public comment on the proposed rule. The comment 
addressed the termination premium. The commenter expressed concern that 
``Congress may not have considered the financial ramifications of'' the 
termination premium. The commenter requested that PBGC ``adopt a facts-
and-circumstance approach in collecting the termination premium fee'' 
and ``consider limiting its recoveries of this termination premium to 
amounts that each company can afford to pay without jeopardizing its 
ability to stay in business.''
    PBGC has accepted less than full payment on its claims for unfunded 
benefit liabilities, unpaid funding contributions, and unpaid flat- and 
variable-rate premiums in circumstances in which, like other creditors, 
it is forced to compromise those claims. But the language of section 
8101(b) of DRA 2005 makes clear that a Congressional purpose in 
imposing the termination premium was to discourage the termination of 
underfunded pension plans. Congress has made clear that, when a plan 
terminates under the circumstances described in new section 
4006(a)(7)(B) of ERISA during the pendency of a bankruptcy 
reorganization, the liability for the termination premium arises after 
emergence from bankruptcy, indicating a specific intent to avoid a 
limited recovery of the termination premium in bankruptcy and to ensure 
a full recovery post-bankruptcy. In light of this Congressional intent, 
it would be inappropriate for PBGC to adopt a policy of routinely 
settling termination premium claims for less than the full amount.
    PBGC recognizes that plan sponsors may face difficult financial 
choices because of the termination premium. Accordingly, PBGC 
encourages sponsors that may be facing termination premium liability to 
contact PBGC as early as possible to discuss.

Technical Changes

    PBGC is taking this opportunity to make some technical changes 
(unrelated to DRA 2005 or PPA 2006) to its regulations on Premium Rates 
and Payment of Premiums.
    Section 4006.3 of the premium rates regulation refers to basic 
benefits guaranteed under section 4022(a) of ERISA (which relates only 
to single-employer plans) and omits mention of section 4022A(a) of 
ERISA (which relates to multiemployer plans). This rule adds a 
reference to section 4022A(a).
    Section 4007.11(d) of the premium payment regulation states that 
where proration of the flat- and variable-rate premiums is available 
under Sec.  4006.5(f) of the premium rates regulation, the un-prorated 
premium must be paid in full (even if the plan would be entitled to a 
refund). This provision is anachronistic: PBGC now permits payment of 
the prorated amount under Sec.  4006.5(f), rather than requiring that a 
filer pay the un-prorated amount and request a refund. This rule 
removes the outdated provision.
    Section 4007.11(e) of the premium payment regulation permits PBGC 
to return improper filings and consider them not made. PBGC is not 
exercising this authority, and the provision is unnecessary; PBGC has 
authority to assess penalties under ERISA section 4071 for failure to 
submit material information under the premium payment regulation. This 
rule removes Sec.  4007.11(e).

Applicability

    The regulatory changes made by this rule to implement the 
provisions of section 8101 of DRA 2005 apply (as section 8101 of DRA 
2005 does) to plan years beginning after 2005 and to terminations with 
termination dates after 2005 (subject to the special rule for 
bankruptcies filed before October 18, 2005). The regulatory changes 
made by this rule to implement the provisions of section 405 of PPA 
2006 apply (as section 405 of PPA 2006 does) to plan years beginning 
after 2006.

Compliance With Rulemaking Guidelines

E.O. 12866

    PBGC has determined, in consultation with the Office of Management 
and Budget, that this final rule is a ``significant regulatory action'' 
under Executive Order 12866. The Office of Management and Budget has 
therefore reviewed the rule under Executive Order 12866. Pursuant to 
section 1(b)(1) of E.O. 12866 (as amended by E.O. 13422), PBGC 
identifies the following specific problems that warrant this agency 
action:
     PBGC's regulations do not reflect the statutory changes 
made by DRA 2005 and PPA 2006 regarding the flat premium rate, the cap 
on the variable-rate premium, and the termination premium. This problem 
is significant because, unless the regulations are revised, the public 
may be confused or misled by the anachronistic regulatory provisions.
     PPA 2006 does not define the term ``employee'' for 
purposes of the variable-rate premium cap for plans of small employers. 
This problem is significant because the absence of a definition will 
likely lead to inconsistent application of the cap rules among filers.
     The termination premium language in DRA 2005 is complex 
and in some respects unclear. This problem is significant because the 
complexity and lack of clarity may lead to inconsistent interpretation 
of the termination premium rules among potential termination premium 
filers.
     DRA 2005 does not deal with the situation where the 
termination date is set after the premium due date as described in the 
statute. This problem is significant because, without a relief rule, 
potential filers in such situations would be unable to comply with the 
filing requirements.
     DRA 2005 does not specify the entities responsible for 
keeping termination premium records or making termination premium 
filings, and the existing provisions of PBGC's regulations are 
inapposite. This problem is significant because the absence of a clear 
assignment of responsibility could impede enforcement.
     Under PBGC's existing regulations, late payment penalties 
are determined according to a formula. This is a significant problem in 
the termination premium area because the termination premium 
requirement is new, neither PBGC nor potential filers are familiar with 
it, and assessment of late payment penalties according to a mechanical 
formula could be inappropriate.

[[Page 71228]]

Regulatory Flexibility Act

    PBGC certifies under section 605(b) of the Regulatory Flexibility 
Act that the amendments in this rule will not have a significant 
economic impact on a substantial number of small entities. This rule 
implements statutory changes made by Congress. It provides guidance on 
how to calculate, pay, and substantiate the premiums prescribed by 
statute and imposes no significant burden beyond the burden imposed by 
statute. Furthermore:
     The statutorily imposed increase in the flat-rate premium 
is at most $11 per participant per year, which does not constitute a 
significant economic impact where a plan has a small number of 
participants. Although the flat-rate premium will increase as the 
number of participants increases, the economic impact of the flat-rate 
premium relative to the size of the entity will remain fairly constant 
and will not be significant for a substantial number of entities of any 
size.
     The statutorily imposed cap on the variable-rate premium 
will save qualifying plans money. The rule simply interprets the 
statutory provisions.
     The statutorily imposed termination premium will not 
affect a substantial number of entities of any size.

Accordingly, as provided in section 605 of the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.), sections 603 and 604 do not apply.

Paperwork Reduction Act

    The information collection requirements relating to the flat-rate 
and variable-rate premiums have been approved by the Office of 
Management and Budget under the Paperwork Reduction Act (OMB control 
number 1212-0009, expires April 30, 2008).
    The information collection requirements relating to the termination 
premium have been approved by the Office of Management and Budget under 
the Paperwork Reduction Act (OMB control number 1212-0064, expires 
October 31, 2010).
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number.
    PBGC needs information relating to the termination premium to 
identify the plan for which a termination premium is paid to PBGC, to 
verify the determination of the premium, and to identify the persons 
liable for the premium. PBGC has maximized the practical utility of the 
information collection and minimized the burden by designing the 
collection to provide the information PBGC needs to administer and 
enforce the termination premium requirements without requiring the 
submission of information that is extraneous to that function. 
Specifically, the Form T that PBGC has designed for submission of 
termination premium payments requests:
     The name, Employer Identification Number, and Plan Number 
for the terminated plan last reported in a PBGC flat- and/or variable-
rate premium filing (to identify the plan).
     The date of plan termination (to identify the date as of 
which participants are counted and contributing sponsors and controlled 
group members liable for the premium are identified).
     The participant count (on which the termination premium is 
based).
     The termination premium rate (generally $1,250, but $2,500 
for certain airline or airline-related plans).
     The amount of the termination premium owed.
     Whether this is the first, second, or third payment (some 
data should match from payment to payment, whereas other data may not).
     The payment method (indicating whether PBGC should be 
looking for a check with the Form T or expecting an electronic funds 
transfer).
     The name and address of the filer (to identify the filer).
     A list of all persons (other than the filer) that are 
liable for the termination premium (for enforcement purposes).
    Because the number of plan terminations to which the termination 
premium applies is expected to be relatively small (about 25 per year), 
the total burden of compliance will be minimal.

List of Subjects

29 CFR Part 4006

    Pension insurance, Pensions.

29 CFR Part 4007

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

0
For the reasons given above, PBGC is amending 29 CFR parts 4006 and 
4007 as follows.

PART 4006--PREMIUM RATES

0
1. The authority citation for part 4006 continues to read as follows:

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


0
2. In Sec.  4006.3:
0
a. The introductory text is amended by removing the words ``Sec.  
4006.5 (dealing with exemptions and special rules)'' and adding in 
their place the words ``Sec.  4006.5 (dealing with exemptions and 
special rules) and Sec.  4006.7 (dealing with premiums for certain 
terminated single-employer plans)''; and by removing the words 
``section 4022(a)'' and adding in their place the words ``section 
4022(a) or section 4022A(a)''.
0
b. Paragraph (a) introductory text is amended by removing the words 
``multiplied by--'' and adding in their place the words ``multiplied by 
the applicable flat premium rate determined under paragraph (c) of this 
section.''.
0
c. Paragraphs (a)(1) and (a)(2) are removed.
0
d. Paragraph (b) is revised, and new paragraphs (c) and (d) are added, 
to read as follows:


Sec.  4006.3  Premium rate.

* * * * *
    (b) Variable-rate premium.
    (1) In general. Subject to the limitation in paragraph (b)(2) of 
this section, the variable-rate premium is $9 for each $1,000 of a 
single-employer plan's unfunded vested benefits, as determined under 
Sec.  4006.4.
    (2) Cap on variable-rate premium. If a plan is described in 
paragraph (b)(3) of this section for the premium payment year, the 
variable-rate premium does not exceed $5 multiplied by the square of 
the number of participants in the plan on the last day of the plan year 
preceding the premium payment year. For example, if the number of 
participants in the plan on the last day of the plan year preceding the 
premium payment year is 20, the variable-rate premium does not exceed 
$2,000 ($5 x 202 = $5 x 400 = $2,000).
    (3) Plans eligible for cap. A plan is described in this paragraph 
(b)(3) for the premium payment year if the aggregate number of 
employees of all employers in the plan's controlled group on the first 
day of the premium payment year is 25 or fewer.
    (4) Meaning of ``employee.'' For purposes of paragraph (b)(3) of 
this section, the aggregate number of employees is determined in the 
same manner as under section 410(b)(1) of the Code, taking into account 
the provisions of section 414(m) and (n) of the Code, but without 
regard to section 410(b)(3), (4), and (5) of the Code.
    (c) Applicable flat premium rate. The applicable flat premium rate 
is:
    (1) For a premium payment year beginning before 2006--
    (i) For a single-employer plan, $19, and
    (ii) For a multi-employer plan, $2.60.
    (2) For a premium payment year beginning in 2006--

[[Page 71229]]

    (i) For a single-employer plan, $30, and
    (ii) For a multi-employer plan, $8.
    (3) For a premium payment year beginning after 2006, the greater 
of--
    (i) The applicable flat premium rate for plan years beginning in 
the calendar year preceding the calendar year in which the premium 
payment year begins, or
    (ii) The adjusted flat rate determined under paragraph (d) of this 
section for the premium payment year.
    (d) Adjusted flat rate. The adjusted flat rate for a premium 
payment year beginning after 2006 is determined by--
    (1) Multiplying the applicable flat premium rate for 2006 by the 
ratio of--
    (i) The national average wage index (as defined in section 
209(k)(1) of the Social Security Act) for the first of the two calendar 
years preceding the calendar year in which the premium payment year 
begins, to
    (ii) The national average wage index (as so defined) for 2004; and
    (2) Rounding the result to the nearest multiple of $1 (rounding up 
any unrounded result that equals some whole number of dollars plus 50 
cents).

0
3. New Sec.  4006.7 is added to read as follows:


Sec.  4006.7  Premium rate for certain terminated single-employer 
plans.

    (a) The premium under this section (``termination premium'') 
applies to a DRA 2005 termination described in Sec.  4007.13 of this 
chapter.
    (b) The amount of the premium under this section that is payable 
with respect to each applicable 12-month period (as described in Sec.  
4007.13 of this chapter) is the number of participants in the plan, 
determined as of the day before the termination date under section 4048 
of ERISA, multiplied by the termination premium rate. In general, the 
termination premium rate is $1,250. However, the termination premium 
rate is $2,500 for an ``eligible plan'' under section 402(c)(1) of the 
Pension Protection Act of 2006 (dealing with certain plans of 
commercial passenger airlines and airline catering services) while an 
election under section 402(a)(1) of the Pension Protection Act of 2006 
(dealing with alternative funding schedules) is in effect for the plan 
if the plan terminates during the five-year period beginning on the 
first day of the first applicable plan year (as defined in section 
402(c)(2) of that Act) with respect to the plan, unless the Secretary 
of Labor determines that the plan terminated as a result of 
extraordinary circumstances such as a terrorist attack or other similar 
event.
    (c) The premium under this section is in addition to any other 
premium under this part.
    (d) See Sec.  4007.13 of this chapter for further rules about 
termination premiums.

PART 4007--PAYMENT OF PREMIUMS

0
4. The authority citation for part 4007 continues to read as follows:

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


0
5. Section 4007.3 is amended by removing the words ``The plan 
administrator'' and adding in their place the words ``Subject to the 
provisions of Sec.  4007.13, the plan administrator''; and by removing 
``Sec.  4007.11'' and adding in its place the words ``this part''.

0
6. In Sec.  4007.7, paragraph (a) is amended by removing ``Sec.  
4007.11'' and adding in its place the words ``this part''.

0
7. In Sec.  4007.8:
0
a. Paragraph (a) introductory text is amended by removing the words 
``If any premium payment due'' and adding in their place the words 
``Subject to the provisions of Sec.  4007.13, if any premium payment 
due''; and by removing ``Sec.  4007.11'' and adding in its place the 
words ``this part''.
0
b. Paragraph (a)(1)(i) is amended by removing the word ``plan's''.
0
c. Paragraph (a)(1) introductory text is revised to read as follows:


Sec.  4007.8  Late payment penalty charges.

    (a) * * *
    (1) Penalty rate; in general. Except as provided in paragraph 
(a)(2) of this section, the penalty rate is--
* * * * *

0
8. In Sec.  4007.9, paragraph (a) is amended by removing the words ``by 
a plan administrator''; and by removing the words ``that plan's'' and 
adding in their place the words ``a plan's''.

0
9. In Sec.  4007.10:
0
a. Paragraph (a)(1) is amended by removing the words ``plan 
administrator'' and adding in their place the words ``designated 
recordkeeper under paragraph (a)(3) of this section''.
0
b. Paragraph (a)(2) is amended by removing the words ``The plan 
administrator'' and adding in their place the words ``A designated 
recordkeeper''.
0
c. Paragraph (b) is amended by removing the words ``for any premium 
payment year''.
0
d. Paragraph (c)(1) is amended by removing the words ``The plan 
administrator'' and adding in their place the words ``A designated 
recordkeeper''.
0
e. Paragraph (c)(2) is amended by removing the words ``the plan 
administrator'' and adding in their place the words ``a designated 
recordkeeper''.
0
f. Paragraph (c)(2)(ii) is amended by removing the words ``plan 
administrator'' and adding in their place the words ``designated 
recordkeeper''.
0
g. New paragraph (a)(3) is added to read as follows:


Sec.  4007.10  Recordkeeping; audits; disclosure of information.

    (a) * * *
    (3) Designated recordkeepers.
    (i) With respect to the flat-rate and variable-rate premiums 
described in Sec.  4006.3 of this chapter, the plan administrator is 
the designated recordkeeper.
    (ii) With respect to the premium for certain terminated single-
employer plans described in Sec.  4006.7 of this chapter, each person 
who was a contributing sponsor of such a plan, or was a member of a 
contributing sponsor's controlled group, as of the day before the 
plan's termination date is a designated recordkeeper.
* * * * *

0
10. In Sec.  4007.11:
0
a. Paragraph (a) introductory text is amended by removing the words 
``The premium filing due date for small plans'' and adding in their 
place the words ``For flat-rate and variable-rate premiums, the premium 
filing due date for small plans''.
0
b. Paragraph (a)(3) introductory text is amended by removing the words 
``the premium form or forms and payment or payments for the short plan 
year shall be filed by'' and adding in their place the words ``the due 
date or dates for the flat-rate premium and any variable-rate premium 
for the short plan year are''; and by removing the words ``for the 
premium forms and payments''.
0
c. Paragraph (c) introductory text is amended by removing the words 
``the premium form and all premium payments due for the first plan year 
of coverage of any new plan or newly covered plan shall be filed on or 
before'' and adding in their place the words ``the due date for the 
flat-rate premium and any variable-rate premium for the first plan year 
of coverage of any new plan or newly covered plan shall be''.
0
d. Paragraph (d) is amended by removing the words ``to file the forms 
or forms prescribed by this part and to pay any premiums due'' and 
adding in their place the words ``to make flat-rate and (as applicable) 
variable-rate premium filings and payments under this part''; and by 
removing the last sentence of the paragraph.
0
e. Paragraph (e) is removed.

0
11. In Sec.  4007.12, paragraph (a) is amended by removing the words 
``to file

[[Page 71230]]

the applicable forms and to submit the premium payment'' and adding in 
their place the words ``to make flat-rate and variable-rate premium 
filings and payments under this part''; and by removing the words 
``liable for premium payments'' and adding in their place ``liable for 
flat-rate and variable-rate premium payments''.

0
12. New Sec.  4007.13 is added to read as follows:


Sec.  4007.13  Premiums for certain terminated single-employer plans.

    (a) Applicability--(1) In general. This section applies where there 
is a ``DRA 2005 termination'' of a plan. Subject to paragraph (a)(2) of 
this section, there is a DRA 2005 termination where a single-employer 
plan's termination date under section 4048 of ERISA is after 2005 and 
either--
    (i) The plan terminates under section 4042 of ERISA, or
    (ii) The plan terminates under section 4041(c) of ERISA and at 
least one contributing sponsor or member of a contributing sponsor's 
controlled group meets the requirements of section 4041(c)(2)(B)(ii) or 
(iii) of ERISA.
    (2) Plans terminated during reorganization proceedings. Except as 
provided in paragraph (a)(3) of this section, a DRA 2005 termination of 
a plan does not occur where as of the plan's termination date under 
section 4048 of ERISA--
    (i) A bankruptcy proceeding has been filed by or against any person 
that was a contributing sponsor of the plan on the day before the 
plan's termination date or that was on that day a member of any 
controlled group of which any such contributing sponsor was a member,
    (ii) The proceeding is pending as a reorganization proceeding under 
chapter 11 of title 11, United States Code (or under any similar law of 
a State or political subdivision of a State),
    (iii) The person has not been discharged from the proceeding, and
    (iv) The proceeding was filed before October 18, 2005.
    (3) Special rule for certain airline-related plans. Paragraph 
(a)(2) of this section does not apply to an ``eligible plan'' under 
section 402(c)(1) of the Pension Protection Act of 2006 (dealing with 
certain plans of commercial passenger airlines and airline catering 
services) while an election under section 402(a)(1) of the Pension 
Protection Act of 2006 (dealing with alternative funding schedules) is 
in effect for the plan.
    (4) Termination premium. A premium as described in Sec.  4006.7 of 
this chapter is payable to PBGC with respect to a DRA 2005 termination 
each year for three years after the termination (the ``termination 
premium'').
    (b) Filing requirements; method of filing. Notwithstanding Sec.  
4007.3, in the case of a DRA 2005 termination of a plan, each person 
that was a contributing sponsor of the plan on the day before the 
plan's termination date or that was on that day a member of any 
controlled group of which any such contributing sponsor was a member is 
responsible for filing prescribed termination premium information and 
payments. Any such person may file on behalf of all such persons.
    (c) Late payment penalty charges. Notwithstanding Sec.  4007.8(a), 
if any required termination premium payment is not filed by the due 
date under paragraph (d) of this section, PBGC may assess a late 
payment penalty charge based on the facts and circumstances, subject to 
waiver under Sec.  4007.8(b), (c), (d), or (e). The charge will not 
exceed the amount of termination premium not timely filed.
    (d) Due dates. Notwithstanding Sec.  4007.11, the due date for the 
termination premium is the 30th day of each of three applicable 12-
month periods. The three applicable 12-month periods with respect to a 
DRA 2005 termination of a plan are--
    (1) First applicable 12-month period. Except as provided in 
paragraph (e) or (f) of this section, the period of 12 calendar months 
beginning with the first calendar month following the calendar month in 
which occurs the plan's termination date under section 4048 of ERISA, 
and
    (2) Subsequent applicable 12-month periods. Each of the first two 
periods of 12 calendar months that immediately follow the first 
applicable 12-month period.
    (e) Certain reorganization cases. (1) This paragraph (e) applies 
with respect to a DRA 2005 termination of a plan if the conditions in 
both paragraph (e)(2) and paragraph (e)(3) of this section are 
satisfied.
    (2) The condition of this paragraph (e)(2) is that either--
    (i) The plan terminates under section 4042 of ERISA, or
    (ii) The plan terminates under section 4041(c) of ERISA and at 
least one contributing sponsor or member of a contributing sponsor's 
controlled group meets the requirements of section 4041(c)(2)(B)(ii) of 
ERISA.
    (3) The condition of this paragraph (e)(3) is that as of the plan's 
termination date under section 4048 of ERISA--
    (i) A bankruptcy proceeding has been filed by or against any person 
that was a contributing sponsor of the plan on the day before the 
plan's termination date or that was on that day a member of any 
controlled group of which any such contributing sponsor was a member,
    (ii) The proceeding is pending as a reorganization proceeding under 
chapter 11 of title 11, United States Code (or under any similar law of 
a State or political subdivision of a State), and
    (iii) The person has not been discharged from the proceeding.
    (4) If this paragraph (e) applies with respect to a DRA 2005 
termination of a plan, then except as provided in paragraph (f) of this 
section, the first applicable 12-month period with respect to the plan 
is the period of 12 calendar months beginning with the first calendar 
month following the calendar month in which occurs the earliest date 
when, for every person that was a contributing sponsor of the plan on 
the day before the plan's termination date under section 4048 of ERISA, 
or that was on that day a member of any controlled group of which any 
such contributing sponsor was a member, either--
    (i) There is not pending any bankruptcy proceeding that was filed 
by or against such person and that was, as of the plan's termination 
date under section 4048 of ERISA, a reorganization proceeding under 
chapter 11 of title 11, United States Code (or under any similar law of 
a State or political subdivision of a State), or
    (ii) The person has been discharged in any such proceeding, or
    (iii) The person no longer exists.
    (f) Plan termination date in past when set. If a plan's termination 
date under section 4048 of ERISA is in the past when it is established 
by agreement or court action as described in section 4048 of ERISA, 
then the first applicable 12-month period for determining the due dates 
of the termination premium begins with the later of--
    (1) The first calendar month following the calendar month in which 
the termination date is established by agreement or court action as 
described in section 4048 of ERISA, or
    (2) The first calendar month specified in paragraph (d)(1) of this 
section or (if paragraph (e) of this section applies) paragraph (e)(4) 
of this section.
    (g) Liability for termination premiums. In the case of a DRA 2005 
termination of a plan, each person that was a contributing sponsor of 
the plan on the day before the plan's termination date, or that was on 
that day a member of any controlled group of which any such 
contributing sponsor was a member, is jointly and severally liable for

[[Page 71231]]

termination premiums with respect to the plan.

    Issued in Washington, DC, this 2nd day of November, 2007.
Elaine L. Chao,
Chairman, Board of Directors, Pension Benefit Guaranty Corporation.
    Issued on the date set forth above pursuant to a resolution of 
the Board of Directors authorizing its Chairman to issue this final 
rule.
Judith R. Starr,
Secretary, Board of Directors, Pension Benefit Guaranty Corporation.
 [FR Doc. E7-24423 Filed 12-14-07; 8:45 am]
BILLING CODE 7709-01-P