Technical Update 06-3: 2006 Participant Notice

I. Introduction

Plan administrators of certain underfunded plans must notify participants and beneficiaries annually of the plan's funding status and the limits of the PBGC's guarantee. See ERISA section 4011, 29 U.S.C. § 1311, and 29 C.F.R. Part 4011.

The PBGC regulation implementing ERISA section 4011 includes a Model Participant Notice that plan administrators may use to meet the Participant Notice requirement. For the convenience of plan administrators, each year the PBGC republishes the Model Participant Notice, updated to reflect the latest information on maximum guaranteed benefits.

A detailed description of the rules governing the requirement to issue a 2006 Participant Notice is contained in section III below. As in prior years, this Technical Update also includes a Worksheet to help plan administrators determine whether they must issue a 2006 Participant Notice.

Plan administrators of most new and newly covered plans are exempt from the Participant Notice requirement. Plan administrators of small plans are NOT exempt from the Participant Notice requirement. However, there are special rules that allow plan administrators of small plans to avoid doing additional calculations by using numbers already reported on Schedule B to the Form 5500. A plan administrator may issue a Participant Notice even if it is not required.

This Technical Update explains how the interest rate changes enacted by the Job Creation and Worker Assistance Act of 2002 ("JCWAA"), the Pension Funding Equity Act of 2004 ("PFEA"), and the Pension Protection Act of 2006 ("PPA") can affect the requirement to issue a 2006Participant Notice (discussed in section III below) or the plan funding information required to be disclosed in a 2006 Participant Notice (discussed in section IV below).

Under PPA, ERISA section 4011 is repealed for plan years beginning after December 31, 2006, and replaced by new disclosure requirements under ERISA section 101(f). ERISA section 4011 applies for the 2006 plan year.

II. Due Dates

A 2006 Participant Notice is due two months after the due date (including extensions) for the 2005 Form 5500. Due dates that fall on a weekend or Federal holiday are extended to the next business day. The following table shows the common due dates for calendar year plans:

This Technical Update uses the following terms:

FCL Percentage - A plan's Funded Current Liability Percentage obtained by dividing:

• The actuarial value of the plan's assets (not reduced by any credit balance in the funding standard account), determined as of the plan's valuation date, by
  
  
• The plan's current liability determined using the applicable interest rate (as specified in the Interest Rate Table for 2006 Plan Year, below) for the plan year, determined as of the plan's valuation date.

An alternate method for determining a plan's FCL Percentage is available for small plans - see Special Small Plan Rules in Section V below.

100% Weighted Corporate Rate - 100% of the weighted average of the annual rate of interest determined by the Secretary of the Treasury on amounts invested conservatively in long-term investment-grade corporate bonds. This rate applies for calculating current liability for plan years beginning in 2004, 2005, or 2006 and for certain prior plan years under the PFEA Optional Recalculation rule.

120% Weighted Treasury Rate - 120% of the weighted average of the yield on 30-year Treasury securities. This rate applies for calculating current liability for plan years beginning in 2002 or 2003.

PFEA Optional Recalculation - An optional recalculation of a plan's FCL Percentage for plan years beginning in 2002 or 2003 solely to determine whether the plan meets the DRC Exception Test (see below) for the 2006 plan year or the 2005 plan year, as permitted under PFEA § 101(d)(2).

These rates are published monthly by the Internal Revenue Service. A summary of the rates that might be needed to determine if a 2006 Participant Notice is required is included as an Appendix to this Technical Update.

III. Requirement to Issue a 2006 Participant Notice

The plan administrator of any single-employer plan for which a variable rate premium ("VRP") is payable for the 2006 plan year is required to issue a 2006 Participant Notice, unless the plan meets a funding-related test tied to the "deficit reduction contribution" rules - the "Deficit Reduction Contribution ("DRC") Exception Test" (discussed below) - for the 2006 plan year or the 2005 plan year.

Thus, a plan administrator is required to issue a 2006 Participant Notice unless the plan meets one of the following three criteria:

• No VRP is payable for the 2006 plan year
  
  
• The plan meets the DRC Exception Test for the 2006 plan year, or
  
  
• The plan meets the DRC Exception Test for the 2005 plan year.

VRP

A plan administrator is not required to issue a 2006 Participant Notice if a VRP is not payable for that plan year, either because (1) the plan has no unfunded vested benefits (determined on a premium basis), or (2) because the plan qualifies for at least one of five exemptions from the VRP contained in the PBGC's regulation on Premium Rates, 29 C.F.R. § 4006.5(a). One of these exemptions is for plans at the full funding limit under 29 C.F.R. § 4006.5(a)(5).

DRC Exception Test

A plan administrator is not required to issue a 2006 Participant Notice if the plan meets the DRC Exception Test for either the 2006 plan year or the 2005 plan year. Whether a plan meets the DRC Exception Test for a plan year depends on whether the plan's FCL Percentage is at or above various specified levels for several plan years. Specifically -

• A plan meets the DRC Exception Test for the 2006 plan year if the plan's FCL Percentage is -
  
  
  • At least 90% for the 2006 plan year, or
    
    
  • At least 80% for the 2006 plan year and at least 90% for either -
    
    
    • The 2005 plan year and the 2004 plan year, or
      
      
    • The 2004 plan year and the 2003 plan year.
      
      
• A plan meets the DRC Exception Test for the 2005 plan year if the plan's FCL Percentage is -
  
  
  • At least 90% for the 2005 plan year, or
    
    
  • At least 80% for the 2005 plan year and at least 90% for either -
    
    
    • The 2004 plan year and the 2003 plan year, or
      
      
    • The 2003 plan year and the 2002 plan year.

Participant Notice Worksheet

Determining whether a Participant Notice is required for the 2006 plan year can be complex. In some cases plan administrators have the option of recalculating previous determinations of FCL Percentages using a higher interest rate under the PFEA Optional Recalculation rule. Thus, plan administrators are encouraged to use the 2006 Participant Notice Worksheet in (VI below), paying particular attention to the various interest rates required or permitted to be used in determining the plan's FCL Percentage for each plan year.

The Worksheet presents one sequence of steps for determining whether a 2006 Participant Notice is required. However, a plan administrator may wish to use a different order, particularly if a plan's FCL Percentages reported on prior Forms 5500, Schedule B, may be sufficient to satisfy the DRC Exception Test for the 2006 plan year or the 2005 plan year.

PFEA Optional Recalculation

In general, a plan's FCL Percentages for plan years prior to the 2006 plan year have been reported on prior Forms 5500, Schedule B. In many cases, the FCL Percentages calculated for one or more prior plan years will be sufficiently high that the plan meets the DRC Exception Test for the 2006 plan year or the 2005 plan year.

If the plan does not meet the DRC Exception Test for the 2006 plan year or the 2005 plan year using the FCL Percentages that were originally calculated, the plan may recalculate certain FCL Percentages under the PFEA Optional Recalculation rule. Under this rule, the FCL Percentages for the 2002 plan year or the 2003 plan year may be recalculated using the 100% Weighted Corporate Rate. Note that the PFEA Optional Recalculation will always result in a higher FCL Percentage than the FCL Percentage previously calculated (see Interest Rate Table in Appendix below).

The following table provides a summary of which interest rate(s) must be used for various plan years to determine if a Participant Notice is required for the 2006 plan year.

IV. Funding Information Required to be Disclosed in a 2006 Participant Notice

A 2006 Participant Notice must disclose the plan's FCL Percentage determined using the 100% Weighted Corporate Rate either:

• For the 2006 plan year, or
  
  
• For the 2005 plan year.

V. Special Small Plan Rules

Calculating the Plan's FCL Percentage both for Requirement to Issue a 2006 Participant Notice and for Funding Information Required to be Disclosed in a 2006 Participant Notice

In calculating its FCL Percentage for a plan year, a plan that is a "small plan" (as defined below) for that plan year may use one or both of the following rules:

1. The plan's FCL Percentage may be calculated by using numbers that are required to be reported on the Form 5500, Schedule B, for the plan year for which the FCL Percentage is calculated. Under this special rule, the FCL Percentage is obtained by dividing -
   
   
   • The market value of the plan's assets as of the beginning of the plan year, by
     
     
   • The plan's total current liability as of the beginning of the plan year.
     
     
2. When calculating current liability (whether or not the plan uses the special rule in (1) above), if the plan's current liability required to be reported on Form 5500, Schedule B, was calculated using an interest rate lower than the highest allowable interest rate, the current liability at the highest rate may be determined by reducing the reported current liability by one percent for each tenth of a percent by which the highest allowable interest rate exceeds the interest rate used.

Example: Assume that a small plan's current liability as of January 1, 2006, is $250,000, based on an interest rate of 5.17%. The highest allowable interest rate for the 2006 plan year is 5.77% (the applicable 100% Weighted Corporate Rate). Because the highest allowable interest rate exceeds the interest rate used by six-tenths of a percent, current liability may be reduced by 6% to $235,000, as follows: (1.00 -.06) x $250,000 = $235,000.

Definition of "Small Plan"

A plan is considered to be a "small plan" for a plan year if it had 100 or fewer participants on each day during the preceding plan year. When determining whether a plan is a "small plan," its participants must be aggregated with the participants of all other defined benefit plans maintained by the same employer or any other member of the employer's controlled group in accordance with ERISA section 302(d)(6)(C), 29 U.S.C. § 1082(d)(6)(C).

VI. 2006 Participant Notice Worksheet

2006 Participant Notice Worksheet.

VII. 2006 Model Participant Notice

The following is an example of a 2006 Participant Notice that satisfies the requirements of 29 C.F.R. section 4011.10 when the required information is filled in.

NOTICE TO PARTICIPANTS OF [PLAN NAME]

The law requires that you receive information on the funding level of your defined benefit pension plan and the benefits guaranteed by the Pension Benefit Guaranty Corporation (PBGC), a federal insurance agency.

YOUR PLAN'S FUNDING

As of [month/day/year], your plan had [insert Notice Funding Percentage determined in accordance with 29 C.F.R. section 4011.10(c)] percent of the money needed to pay benefits promised to employees and retirees.

To pay pension benefits, your employer is required to contribute money to the pension plan over a period of years. A plan's funding percentage does not take into consideration the financial strength of the employer. Your employer, by law, must pay for all pension benefits, but your benefits may be at risk if your employer faces a severe financial crisis or is in bankruptcy.

[Include the following paragraph only if, for any of the previous five plan years, the plan has been granted and has not fully repaid a funding waiver.]

Your plan received a funding waiver for [list any of the five previous plan years for which a funding waiver was granted and has not been fully repaid]. If a company is experiencing temporary financial hardship, the Internal Revenue Service may grant a funding waiver that permits the company to delay contributions that fund the pension plan.

[Include the following with respect to any unpaid or late payment that must be disclosed under 29 C.F.R. section 4011.10(b)(6):]

Your plan was required to receive a payment from the employer on [list applicable due date(s)]. That payment [has not been made] [was made on [list applicable payment date(s)]].

PBGC GUARANTEES

When a pension plan terminates without enough money to pay all benefits, the PBGC steps in to pay pension benefits. The PBGC pays most people all pension benefits, but some people may lose certain benefits that are not guaranteed.

The PBGC pays pension benefits up to certain maximum limits.

• The maximum guaranteed benefit is $3,971.59 per month or $47,659.08 per year for a 65-year-old person in a plan that terminates in 2006. [If you issue this notice after the maximum guaranteed benefit information for plans that terminate in 2007 is announced, you may add or substitute that information in order to provide participants with more current information. The PBGC expects to make that information available on its web site at http://www.pbgc.gov in early November 2006.]

• The maximum benefit may be reduced for an individual who is younger than age 65. For example, it is $1,787.22 per month or $21,446.64 per year for an individual who starts receiving benefits at age 55. [In lieu of age 55, you may add or substitute any age(s) relevant under the plan. For example, you may add or substitute the maximum benefit for ages 62 or 60. The maximum benefit is $3,137.56per month or $37,650.72 per year at age 62; it is $2,581.53per month or $30,978.36 per year at age 60. If the plan provides for normal retirement before age 65, you must include the normal retirement age.] [If you issue this notice after the maximum guaranteed benefit information for plans that terminate in 2007 is announced, you may add or substitute that information in order to provide participants with more current information. The PBGC expects to make that information available on its web site at http://www.pbgc.gov in early November 2006.] [If the plan does not provide for commencement of benefits before age 65, you may omit this paragraph.]

• The maximum benefit will also be reduced when a benefit is provided for a survivor.

The PBGC does not guarantee certain types of benefits. [Include the following guarantee limits that apply to the benefits available under your plan.]

• The PBGC does not guarantee benefits for which you do not have a vested right when a plan terminates, usually because you have not worked enough years for the company.

• The PBGC does not guarantee benefits for which you have not met all age, service, or other requirements at the time the plan terminates.

• Benefit increases and new benefits that have been in place for less than a year are not guaranteed. Those that have been in place for less than 5 years are only partly guaranteed.

• Early retirement payments that are greater than payments at normal retirement age may not be guaranteed. For example, a supplemental benefit that stops when you become eligible for Social Security may not be guaranteed.

• Benefits other than pension benefits, such as health insurance, life insurance, death benefits, vacation pay, or severance pay, are not guaranteed.

• The PBGC generally does not pay lump sums exceeding $5,000.

WHERE TO GET MORE INFORMATION

Your plan, [EIN-PN], is sponsored by [contributing sponsor(s)]. If you would like more information about the funding of your plan, contact [insert name, title, business address and phone number of individual or entity].

For more information about the PBGC and the benefits it guarantees, you may request a free copy of "Your Guaranteed Pension" by writing to Consumer Information Center, Dept. YGP, Pueblo, Colorado 81009. [The following sentence may be included:] "Your Guaranteed Pension" is also available on the PBGC's Web site at http://www.pbgc.gov.

Issued: [insert at least month and year]

Appendix

Summary of Published Interest Rates
for the DRC Exception Test for the 2006 Participant Notice