Jonathan Feldman, a consulting actuary in Horizon’s Washington, DC office, recently completed the educational requirements necessary to earn the designation of Fellow of the Society of Actuaries.
​
Congratulations to Jonathan on this great accomplishment!

On March 2, 2010, the Department of Labor released a final regulation implementing the disclosure requirements of section 101(k) of ERISA. The new final regulation describes certain actuarial and financial information that multiemployer pension plans must furnish to participants, employers, and other parties upon written request. The final regulation is effective April 1, 2010.

The plan administrator may impose a reasonable charge to cover the costs of providing the requested documents. A reasonable charge under the final regulation includes the cost of mailing or delivering the documents plus the actual cost of the least expensive means of acceptable reproduction of the documents(s) but not more than $0.25 per page.

The regulation also broadly defines “periodic actuarial reports” to include any information provided to the plan by an actuary that depicts alternative funding scenarios based on a range of actuarial assumptions. The trustees and administrators of multiemployer plans should discuss and review the likely effects of providing actuarial reports (which may be difficult to understand) to plan participants and employers. They should also work with legal counsel to formulate a policy that is consistent with the regulation, as well as with other fund policies and objectives.

Background information on ERISA 101(k) and the definition of “periodic actuarial reports” are included below, along with relevant links to the DOL website and the Federal Register.

Background on ERISA 101(k)

The Pension Protection Act of 2006 (PPA) created section 101(k) of ERISA to increase transparency with respect to the operation and financial situation of multiemployer plans. Section 101(k) requires the administrator of a multiemployer pension plan to furnish copies of certain actuarial and financial information, upon written request, to any plan participant, beneficiary, employee representative (union), or any employer with an obligation to contribute to the plan.

The information required to be furnished by the plan administrator includes the following:

• Periodic actuarial reports (including sensitivity testing) which have been in the plan’s possession for at least 30 days
• Quarterly, semi-annual, or annual financial reports which have been in the plan’s possession for at least 30 days
• Applications for amortization extensions filed with the Secretary of the Treasury and related determinations

The plan administrator is required to furnish information to the requesting party within 30 days after the request. The plan administrator must not furnish information that individually identifies participants, beneficiaries, employees, fiduciaries, or contributing employers, nor should it furnish information that is proprietary to the plan, any contributing employer, or entity providing services to the plan. Further, the plan administrator is not required to disclose any report or application that has been in the plan’s possession for 6 years or more.

Parties shall not be entitled to receive more than one copy of any document described above within one 12-month period. The administrator may make a reasonable charge to cover copying and mailing expenses. A civil penalty of not more than $1,000 per day may be assessed by the DOL for each violation of section 101(k).

Definition of “Periodic Actuarial Reports”

Prior to the release of this regulation, it was unclear as to what documents are considered “periodic actuarial reports” and are therefore required to be furnished to interested parties upon written request. The prevailing interpretation was that actuarial reports that are prepared on a regular and recurring basis (such as annual actuarial valuation reports) should be furnished, but there was some debate as to whether ad hoc reports and information (such as a study depicting alternative funding scenarios) are also required to be furnished.

The DOL’s final regulation broadly defines “periodic actuarial report,” as described below.

1. Periodic actuarial report. For this purpose the term “periodic actuarial report” means any--
   1. Actuarial report prepared by an actuary of the plan and received by the plan at regularly scheduled, recurring intervals; and
   2. Study, test (including a sensitivity test), document, analysis or other information (whether or not called a “report”) received by the plan from an actuary of the plan that depicts alternative funding scenarios based on a range of alternative actuarial assumptions, whether or not such information is received by the plan at regularly scheduled, recurring intervals.

Plan trustees and administrators should work with legal counsel to formulate a policy that is consistent with the regulation, as well as with other fund policies and objectives.

External Links

Federal Register (29 CFR Part 2520):
http://www.dol.gov/federalregister/PdfDisplay.aspx?DocId=23571

DOL fact sheet:
http://www.dol.gov/ebsa/newsroom/fsmultiemployer.html