October 6, Prepared by:

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1 HENRY TALAVERA HUNTON & WILLIAMS LLP FOUNTAIN PLACE 1445 ROSS AVENUE SUITE 3700 DALLAS, TEXAS CHRISTINA CROCKETT HUNTON & WILLIAMS LLP 1751 PINNACLE DRIVE SUITE 1700 MCLEAN, VA October 6, 2011 HENRY TALAVERA CHRISTINA CROCKETT DIRECT DIAL: (HT) (CC) htalavera@hunton.com ccrockett@hunton.com FILE NO: UPDATED SINGLE EMPLOYER DEFINED BENEFIT PLAN FUNDING AND BENEFIT RESTRICTION NOTICE REQUIREMENTS: THE IRS FINAL REGULATIONS for the JOINT FALL CLE MEETING AMERICAN BAR ASSOCIATION DENVER, COLORADO Prepared by: Henry Talavera Christina Crockett Hunton & Williams LLP 1445 Ross Avenue, Suite 3700 Dallas, TX (214) htalavera@hunton.com

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3 FUNDING-BASED LIMITS ON BENEFITS AND BENEFIT ACCRUALS UNDER SINGLE-EMPLOYER PLANS (Internal Revenue Code of 1986, amended ( Code ) 436; Treasury Regulations et seq.) 1 General Rule (Code 436(a); Treas. Reg (a)) Shutdown Benefits (Code 436(b); Treas. Reg (b)) Plan Amendments Increasing Liability (Code 436(c); Treas. Reg (c)) A single-employer defined benefit plan meets the requirements of Code 436, for purposes of complying with Code 401(a)(29), if it satisfies subsections (b), (c), (d), and (e) of Code 436. Under Code 401(a)(29), the trust for a defined benefit plan is not a qualified trust unless the plan contains the Code 436 benefit restrictions. *SPECIAL NOTE -- Terminating Plans (Treas. Reg (a)(3)(ii)). The prohibited payment restrictions do not apply to payments made to carry out a plan termination in accordance with applicable law. A plan may not distribute any shutdown or other unpredictable contingent benefits if the plan s Adjusted Funding Target Attainment Percentage ( AFTAP ) for the plan year is (i) less than 60%, or (ii) would be less than 60% taking into account such occurrence. An unpredictable contingent event benefit is any benefit payable due to (i) a plant shutdown (or other similar event) or (ii) an event other than the attainment of an age, performance of service, receipt or derivation of compensation, or occurrence of death or disability. Does not include the cessation of benefits due to an unpredictable contingent event. *SPECIAL NOTE -- In general, if any unpredictable contingent event benefits are limited under Code 436, then the limitation applies to all such benefits that otherwise would have been paid to any participant with respect to that unpredictable contingent event. This restriction applies on a participant-by-participant bass (i.e., determined by whether a particular participant is entitled to such benefit). This restriction ceases to apply as of the first day of the plan year in which the sponsor makes a plan contribution equal to: 1. The minimum required contribution under Code 430, plus 2. Either (A) the amount of the increase in the plan s funding target attributable to the shutdown, or (B) an amount sufficient to bring the plan s AFTAP to 60%. No plan amendment that increases plan liabilities (by increasing benefits, establishing new benefits, changing the benefit accrual rate, or changing the rate at which benefits become nonforfeitable) may take effect if the plan s AFTAP is (i) less than 80%, or (ii) would be less than 80% taking into account 1 Measurement of Assets and Liabilities for Pension Funding Purposes; Benefit Restrictions for Underfunded Pension Plans, 74 Federal Register (Oct. 15, 2009) ( Preamble ). 1

4 such an amendment. This restriction does not apply to an amendment providing a benefit increase that is not based on compensation, if the rate of increase does not exceed the contemporaneous rate of increase in the average wages of participants covered by the amendment. All participants are taken into account in determining the wage increase, but terminated employees are treated as having no wage increase after such employees severance from employment. This restriction ceases to apply as of the first day of the plan year in which the sponsor makes a plan contribution equal to: 1. The minimum required contribution under Code 430, plus 2. Either (A) the amount of the increase in the plan s funding target attributable to the amendment, or (B) an amount sufficient to bring the plan s AFTAP to 80%. If the amount of the contribution which is required is $0 because the amendment increases benefits for future periods, the amendment can take effect now. Separate amendments can be prepared for separate employee groups, so perhaps a benefit increase can be implemented for one group and not another one. Vesting amendments are taken into account, but vesting which occurs only as required by law is not taken into account (e.g., top-heavy vesting). Prohibited Benefit Payments (Code 436(d); Treas. Reg (d)) The following rules apply with respect to prohibited payments: 1. If a plan s AFTAP is less than 60%, the plan cannot pay a prohibited payment after the valuation date for the plan year. 2. A plan can not pay a prohibited payment during any period in which the sponsor is in bankruptcy proceedings, unless the plan s enrolled actuary certifies that the plan s AFTAP is at least 100%. *SPECIAL NOTE -- Code 436(d), however, does not apply to a plan for a plan year if the terms of the plan provide for no benefit accruals with respect to any participant for the period beginning on September 1, 2005, and extending throughout the plan year. 3. If a plan s AFTAP is at least 60%, but less than 80%, the plan can not pay a prohibited payment after the valuation date for the plan year if the amount of the prohibited payment exceeds the lesser of (i) 50% of the amount that could be paid in the optional form that includes the prohibited payment, or (ii) the present value of the maximum PBGC guarantee with respect to a participant. *SPECIAL NOTE -- This determination is based on the optional form of benefit. If the optional form of benefit provides payments greater than the amounts that would 2

5 be payable under a straight life annuity, then the excess generally is a prohibited payment. *SPECIAL NOTE -- For purposes of this rule, the benefit for the unrestricted portion of the benefit is calculated at the annuity starting date for each optional form that does not satisfy the 50%/PBGC maximum guarantee limitation. *SPECIAL NOTE -- Definition of Annuity Starting Date (Treas. Reg (j)(2)). Annuity starting date means: o for an amount payable as an annuity, the first day of the first period for which an amount is payable; o for a benefit not payable as an annuity, the annuity starting date for the qualified joint and survivor annuity that is payable under the plan at the same time as the benefit that is not payable as an annuity; o for an amount payable under a retroactive annuity starting date, the benefit commencement date; o the date of the purchase of an irrevocable commitment from an issuer to pay benefits under the plan; and o for transfers made to avoid or terminate application of the 436 limitations, the date of such transfer. 4. If an optional form of payment is available, the plan must permit the participant to elect to (a) receive the unrestricted portion of the optional form, (b) commence benefits under another optional form, or (c) defer commencement of payments. *SPECIAL NOTE -- A participant has a right to delay commencement only if the right to delay is in accordance with the terms of the plan. *SPECIAL NOTE -- A plan can offer special optional forms of payment during the period that a restriction is in place. 5. This restriction will not apply for any plan year in which plan terms do not provide for benefit accruals with respect to any participant for the period beginning September 1, 2005, and extending throughout the plan year. Prohibited payment means: (i) any payment in excess of the monthly amount paid under a single life annuity (plus any social security supplements) to a participant or beneficiary whose annuity starting date occurs during any period a limitation is in effect, (ii) any payment for the purchase of an irrevocable commitment from an insurer to pay benefits, and (iii) any other payment 3

6 Benefit Accruals (Code 436(e); Treas. Reg (e)) Methods to Avoid or Terminate Benefit Restrictions and Deemed Elections (Code 436(f); Treas. Reg (a)(5) and -1(f)) specified by the Secretary. A plan cannot avoid the rules by using plan assets to purchase an irrevocable commitment from an insurance company. If a plan s AFTAP falls below 60%, benefit accruals under the plan must cease as of the valuation date for the plan year. This restriction ceases to apply as of the first day of the plan year in which the sponsor makes a plan contribution equal to: 1. The minimum required contribution under Code 430, plus 2. An amount sufficient to bring the plan s AFTAP to 60%. The Treasury Regulations reserve the application of section 203 of the Worker, Retiree and Employer Recovery Act of See Footnote 1 of the Preamble (page 53007) for further discussion of this transition rule. To avoid or terminate the benefit restrictions, a sponsor can: 1. Provide security to the plan as plan assets, for purposes of determining a plan s AFTAP (as a practical matter this means cash, although technically a bond can be provided); 2. Make specific contributions to avoid benefit restrictions, as provided under section 436(b), (c), or (e); The contribution must be an actual contribution and cannot consist of the prefunding balance or funding standard carryover balance; 3. Reduce the plan s funding standard carryover balance and prefunding balance by an amount sufficient to avoid the limitations; 4. Make additional contributions for a prior plan year that are not added to the prefunding balance. *SPECIAL NOTE --In certain instances, however, Treasury Regulations deem the sponsor as having elected to reduce funding balances: If the prohibited payment restriction applies, Code 436(f)(3) deems the plan sponsor as having elected to reduce any prefunding balance or funding standard carryover balance by the amount necessary to prevent the limitation from applying. If a benefit restriction would apply, but for the deemed election rules, because the plan s AFTAP is less than 60% (for purposes of Code 436(d)(1)) or between 60-80% (for purposes of Code 436(d)(3)), the plan sponsor is deemed as having elected to reduce the plan s prefunding balance or funding standard carryover balance by such amount as is necessary to bring the plan s AFTAP to the applicable threshold. Treas. Reg (a)(5)(i). The regulations treat deemed elections as though they were made on the date the benefit restriction 4

7 New Plans (Code 436(g); Treas. Reg (a)(3)(i)) Presumptions (Code 436(h); Treas. Reg (g) & (h)) otherwise would apply. If a plan has a presumed AFTAP of less than 60% (pursuant to Treas. Reg (h)), the plan is treated as if the prefunding balance and the funding standard carryover balance are insufficient to increase the plan s AFTAP to the 60% threshold. If the benefit restrictions under Code 436(b), (c), or (e) apply, Code 436(f) deems the sponsor of a plan maintained pursuant to a collective bargaining agreement as having elected to reduce any prefunding balance or funding standard carryover balance by the amount necessary to prevent the limitation from applying. *SPECIAL NOTE -- Collectively Bargained Plans (Treas. Reg (a)(5)(ii)(B)). A plan is considered a collectively bargained plan if: o at least 50% of the employees benefiting under the plan (or at least 25% of the participants in the plan) are members of the collective bargaining unit for which the benefit levels under the plan are specified under a collective bargaining agreement. Restrictions relating to shutdown benefits (and other contingent benefits), plan amendments, and benefit accruals during a severe funding shortfall do not apply for the first 5 years of a plan. The new Treasury Regulations explain how the limitation rules discussed above interact with each other and explain which presumptions must be followed. Treas. Reg (g). 1. If a plan was subject to a restriction during the prior year, the plan s AFTAP for the current year is generally presumed to be the same as for the preceding year until the plan s enrolled actuary certifies the AFTAP for the current year. See Treas. Reg (h)(1)(ii), (iii), (iv) for rules regarding the provisions that apply if an actuarial certification is issued, if no certification is issued, the duration of the presumed AFTAP, and as of what date the certification changes the AFTAP for the current year. 2. If a plan s actuary does not certify the plan s AFTAP by the first day of the 10 th month of the plan year, the AFTAP is presumed to be less than 60% as of that date. That date also will be the valuation date for purposes of determining whether the Code 436 limitations apply. 3. If, during the prior year, a benefit restriction would have applied if the plan s AFTAP was 10% lower than it actually was, the AFTAP for the current year is presumed to be 10% lower as of the first day of the 4 th month of the current plan year unless the plan s enrolled actuary certifies the AFTAP by that date. *SPECIAL NOTE -- Actuarial Certifications (Treas. Reg (h)(4)). The plan s enrolled actuary instead may certify that the plan s AFTAP is within a percentage range (under 60%, 5

8 Resumed Payments (Code 436(i); Treas. Reg (a)(4)) AFTAP (Definition) (Code 436(j); Treas. Reg (j) and page of the Preambles) Alternative Valuation Dates (Code 436(k)) Single-Employer Plan Defined (Code 436(l)) Transition Rule for 2008 (Code 436(m)) Notice (Employee Retirement Income Security Act of 1974, as amended (ERISA), 101(j); Treas. Reg (a)(6)); Treas. Reg. 60%-80%, 80% or higher, or 100%), if the actuary follows up with a certification of the specific AFTAP and that specific AFTAP is actually within the previously certified range. When a restriction on prohibited payments or future benefit accruals (pursuant to Code 436(d) and (e)) ceases, payments and accruals may resume as of the day following the close of the period for which the restriction applied (i.e., the 436 Measurement Date ), unless the plan provides otherwise. The 436 Measurement Date is the date used to determine when the Code 436 limitations apply or cease to apply and for calculations with respect to applying the shutdown benefit and plan amendment limitations. Treas. Reg (j)(8). A plan s AFTAP is a fraction expressed as a percentage, as the (i) the adjusted plan assets (numerator), over (ii) the adjusted funding target for the plan year (denominator). Treas. Reg (j)(1). It generally equals the funding target attainment percentage for the year (FTAP). See Treas. Reg (d)- 1(b)(3). However, the numerator and the denominator are both increased by the aggregate amount of annuity purchases for nonhighly compensated employees made during the preceding 2 plan years. Special rules also apply for well funded plans. A plan s funding target (for a plan not in at-risk status) is generally equal to the present value of all benefits accrued or earned under the plan prior to the beginning of the plan year. Treas. Reg (d)-1(b)(2). At-Risk Plans (Treas. Reg (i)-1). If a plan is at-risk, special assumptions must be used to determine the plan s funding target and target normal cost, a loading factor may be applied to plan liabilities, and restrictions apply to the sponsor s ability to set aside plan assets to pay deferred compensation to a covered employee under a nonqualified deferred compensation plan. o The at-risk rules do not apply to plans that had 500 or fewer participants each day during the preceding plan year. The Secretary will issue regulations for plans with valuation dates other than the first day of the plan year. A single-employer plan is any plan that is not a multiemployer plan. The Secretary may establish separate rules for determining the prior year s FTAP, for plan years beginning in Plan administrator must provide written notice to participants and beneficiaries within 30 days after: 1. The date that the plan becomes subject to a shutdown benefit restriction or prohibited payment restriction; 2. The valuation date for the plan year for which the plan s 6

9 F-1, Q&A 9(g)(3)(ii)(B). AFTAP is less than 60% (or presumed to be less than 60%); and Plan Amendments (Update) (Treas. Reg (k)); Notice ; Notice Main Decision Points (Preamble at 53021, , 53038; Treas. Reg (a)(4)) 3. Such other dates the Secretary specifies. Electronic notice is acceptable as long as it complies with the electronic disclosure rules. 4. If a notice is sent that complies with Section 101(j) of ERISA, then no separate notice is required under Code 204(h). Treas. Reg F-1. Amendments generally must be adopted by the end of the first plan year beginning on or after January 1, 2011 (i.e., by December 31, 2011). An amendment will not violate Code 411(d)(6) if the reduction is made only to the extent required to comply with Code 401(a)(29) and 436. Section IV of Notice For collectively bargained plans with contracts ratified before January 1, 2008, the rules do not apply to plan years beginning before the earlier of (i) January 1, 2010 or (ii) the later of (A) the date that the last contract ends or (B) the date that Code 436 would apply to the plan without regard to the exception for collectively bargained plans. It apparently is not possible to incorporate the benefit restrictions of Code 436 by reference, as the Internal Revenue Service ( Service ) has requested amendments incorporating all of the required provisions of Code 436. The Service anticipates that some day it will issue guidance regarding a model amendments. Until such guidance is issued, plans should provide specific provisions as provided below, with respect to, among other things, certain elections and optional forms which can be provided during the restricted period. To be safe, we suggest not incorporating Code 436 by reference in any respect as the Service has informally indicated that this is not permissible. Below we provide the main decision points and alternatives for plan sponsors to consider when preparing applicable amendments: 1. For certain frozen plans (see above), Code 436(d) does not apparently require an amendment for that particular plan year. Also, if an employer wishes to take a plan freeze into account in determining the target normal cost, the plan must be specifically amended to cease accruals. 2. If a participant requests a prohibited payment at a time when that form of payment cannot be made, the participant retains the right to delay commencement of benefits only if the right to delay commencement is in accordance with the terms of the plan and applicable qualification requirements (such as Code 411(a)(11) and 401(a)(9)). The plan is not required to provide participants with deferral rights that would not be otherwise available. 7

10 3. The Service does not permit a plan under which prohibited payments are restricted to handle an election for a prohibited payment by paying the maximum amount under Code 436(d) each year, with payments resuming as soon as permitted with appropriate catch up. *SPECIAL NOTE -- A plan may offer special optional forms during the Code 436(d)(1) restriction period. For example, a plan may permit participants or beneficiaries who commence benefits during this period to elect, within a specified period after the date on which the limitation ceases to apply to the plan, to receive the remaining benefit in the form of a single-sum payment equal to the present value of the remaining benefit to the extent then permitted under Code 436(d)(3). Any such optional forms must satisfy Code 436(d) and applicable qualification requirements, including satisfaction of Code 417(e) and Code 415 (at each annuity starting date). 4. A plan can provide for separate elections with respect to the unrestricted and restricted portions of the benefit, determined without regard to whether an optional form is selected that includes a payment prohibited by Code 436(d)(3). *SPECIAL NOTE -- For example, during that period, a plan may offer an optional form of benefit (such as a single sum) that provides for the current payment of the unrestricted portion of the benefit, with a delayed commencement for the restricted portion of the benefit or for an immediate commencement of the restricted portion of the benefit in an annuity form with a right to commute to a single sum offered upon the enrolled actuary s certification that the plan s AFTAP is at least 80%. Alternatively, a plan that offers a subsidized early retirement benefit or a single-sum payment based on the normal retirement benefit may offer an optional form of benefit that combines an unsubsidized singlesum payment for over 50% of the accrued benefit with a subsidized early retirement life annuity for the remainder of the accrued benefit, provided that the optional form satisfies the Code 436(d)(3) 50%/PBGC maximum benefit guarantee limitation. 5. With respect to a participant who was barred from receiving an optional form of benefit that would have been payable but for the application of a restriction on prohibited payments pursuant to Code 436(d), once the restriction ceases to apply, the participant s benefits will continue to be paid in the form previously elected unless the plan offers the participant a new election that modifies the prior election. A plan may provide that the participant may make a new election modifying the form of benefit previously elected, subject to applicable qualification requirements, and clarify that any such new election will result in a new annuity starting date for purposes 8

11 of section A plan may provide that any benefit accruals limited under the rules of Code 436(e) will be credited under the plan once the limitation no longer applies, subject to applicable qualification requirements (including the limitations of Code 436(c)). This also can occur automatically. *SPECIAL NOTE -- If a plan restores benefit accruals for the period of the limitation under preexisting plan terms, the plan is generally treated as having adopted an amendment that has the effect of increasing liabilities under the plan. An exception applies if the period of limitation is 12 months or less, and if the plan s AFTAP would be at least 60% taking into account the restored accruals. 7. A plan can provide participants who had an annuity starting date within the restricted period the opportunity to make a new election modifying the form of benefit previously elected, subject to applicable qualification requirements (including the limitations of Code 436(c)). For instance, a new annuity starting date can be provided under which the benefit form previously elected is modified. 8. If shutdown or other unpredictable event benefits are not permitted during a plan year, but are permitted to be paid in a later year due to additional contributions or due to a satisfactory AFTAP certification, then such benefits automatically can become payable retroactively to the period those benefits would have been payable under the terms of the plan. If no provision provides such payments, then the plan is treated as if it never provided those benefits. Benefits, however, can be restored by an amendment that meets the applicable qualification requirements (including the limitations of Code 436(c)). 9. If a plan amendment is adopted but cannot take effect under Code 436(c), but can take effect in a later year when permitted and the amendment so provides, the amendment will automatically take effect in the later year. Plan sponsors should carefully consider when an amendment will become effective if benefits are increased. But if the amendment cannot take effect in later year, the amendment will be treated as void. 10. Under section 436(i), unless the plan provides otherwise, if a limitation on prohibited payments or future benefit accruals under section 436(d) or (e) ceases to apply to a plan, those payments and benefit accruals resume, effective as of the day following the close of the limitation period. This suggests that benefit accruals can begin on a later date. The third-party record-keeper should be consulted to determine whether resumption might be appropriate on another date. Also, plan sponsors should take into account the service crediting rules to 9

12 Specific Plan Provisions Required (Preamble, at , , 53029, 53036; Treas. Reg (a)) avoid violating the rules relating to partial years of participation and double proration under 29 C.F.R (c) and (d). 1. If the plan s AFTAP for a plan year is less than 60%, the plan must not make any prohibited payments after the valuation date for the plan year. 2. A plan must provide that, if the plan s AFTAP for a plan year is less than 60%, a participant or beneficiary is not permitted to elect an optional form of benefit that includes a prohibited payment, and the plan will not pay any prohibited payment, with an annuity starting date that is on or after the applicable Code 436 measurement date. 3. A plan must provide that if a prohibited payment is made that no additional prohibited payment (or a series of them) may be made with respect to that participant during any period of consecutive plan years for which prohibited payments are limited because the plan s AFTAP is at least 60% but less than 80%. Treas. Reg (d)(3)(iv). A participant for whom a prohibited payment (or a series of prohibited payments under a single optional form of benefit) is made in accordance with the 50 percent/pbgc maximum benefit guarantee amount limitation cannot receive any additional payment that would be a prohibited payment during any period of consecutive plan years to which any of the limitations under section 436(d) apply. See page of the Preamble. 4. If an optional form of benefit that is otherwise available under the terms of the plan is not available as of the annuity starting date because of the application of the requirements of Code 436(d)(3), the plan must permit a participant or beneficiary to elect to bifurcate the benefit into unrestricted and restricted portions. The plan must also offer the participant or beneficiary any other optional form of benefit otherwise available under the plan at that annuity starting date that would satisfy the 50%/PBGC maximum benefit guarantee amount limitation, as well as any general right to defer commencement of benefits under the plan. 5. The unrestricted portion of the benefit is calculated at the annuity starting date with respect to each optional form of benefit that does not satisfy the 50%/PBGC maximum benefit guarantee amount limitation. With limited exception, the unrestricted portion of the benefit with respect to an optional form of benefit is 50% of the amount payable under that optional form of benefit. In any event, the unrestricted portion of the benefit must be reduced to the extent necessary so that the present value (determined in accordance with section 417(e)) of the unrestricted portion of that optional form of benefit does not exceed the PBGC maximum benefit guarantee amount. 10

13 6. If the participant or beneficiary elects to bifurcate the benefit, the plan must provide, with respect to the unrestricted portion, the optional form of benefit elected by the participant, treating the unrestricted portion of the benefit as if it were the participant s or beneficiary s entire benefit under the plan. The participant can elect to receive the remainder of his or her benefit in any optional form of benefit available under the plan at that annuity starting date that does not include a prohibited payment. If a plan provides for an optional form of benefit that applies to only a portion of the participant s benefit, that optional form of benefit must be available on a proportionate basis with respect to the unrestricted portion of the benefit. 7. In accordance with Code 436(d)(2), under the final regulations, a plan must provide that a participant or beneficiary is not permitted to elect an optional form of benefit that includes a prohibited payment, and the plan will not pay any prohibited payment, with an annuity starting date that occurs during any period in which the plan sponsor is a debtor in bankruptcy proceedings, until the date on which the enrolled actuary of the plan certifies that the plan s AFTAP for the plan year is not less than 100%. 8. If the plan s AFTAP for a plan year is at least 60% but is less than 80%, the plan must not pay any prohibited payment to the extent the payment exceeds the lesser of (1) 50% of the amount otherwise payable under the plan and (2) the present value of the maximum PBGC guarantee with respect to a participant. 9. Under Code 436(e), a plan is required to provide that if the plan s AFTAP is less than 60% for a plan year, all benefit accruals under the plan must cease as of the valuation date for the plan year. This limitation ceases to apply with respect to any plan year, effective as of the first day of the plan year, if the plan sponsor makes a contribution (in addition to any minimum required contribution for the plan year) equal to the amount sufficient to result in an AFTAP of 60%. 10. A plan must provide that, for any period during which a presumption under Code 436(h) applies to the plan, the limitations applicable under Code 436 are applied to the plan as if the AFTAP for the year were the presumed AFTAP determined under the applicable rule under Code 436(h), in accordance with the rules of operation set forth in the regulations. 11. The rules of operation that apply during a period for which a Code 436(h) presumption is in effect no longer apply for a plan year on and after the date the enrolled actuary for the plan certifies the plan s AFTAP for the current plan year, provided that the certification is issued before the first day of the 10 th month of the plan year. 11

14 a. Consequently, the plan should be amended to specifically provide that Code 436(d) applies to distributions with annuity starting dates on and after the date of that certification using the certified AFTAP of the plan for the plan year. b. Similarly, the plan must provide that any prohibition on accruals under Code 436(e), as a result of the enrolled actuary s certification that the plan s AFTAP for the plan year is less than 60%, is effective as of the date of the certification and that any prohibition on accruals ceases to be effective on the date the enrolled actuary certifies that the plan s AFTAP for the plan year is at least 60%. 12. If a plan does not pay benefits attributable to an unpredictable contingent event or plan amendment because of the application of a presumption under Code 436(h) for a plan year, the plan must provide for benefits that were not previously paid (or accrued) if such benefits would be permitted under the rules of section 436 based on the certified actual AFTAP for that plan year, taking into account the increase in the funding target that would be attributable to the unpredictable contingent event benefits or increase in liability due to the plan amendment. 12. The plan should provide that it will not distribute any shutdown or other unpredictable contingent benefits if the plan s AFTAP for the plan year is (i) less than 60%, or (ii) would be less than 60% taking into account such occurrence. For this purpose, an unpredictable contingent event benefit is any benefit payable due to (i) a plant shutdown (or other similar event) or (ii) an event other than the attainment of a particular age, performance of a service, receipt or derivation of certain compensation, or occurrence of death or disability. This restriction will cease to apply as of the first day of the plan year in which the plan sponsor makes a contribution equal to (i) the minimum required contribution under Code 430, plus (ii) either (A) the amount of the increase in the Plan s funding target attributable to the shutdown (or other similar event), or (B) an amount sufficient to bring the Plan s AFTAP to 60%. 13. No plan amendment that increases plan liabilities (by increasing benefits, establishing new benefits, changing the benefit accrual rate, or changing the rate at which benefits become nonforfeitable) may take effect if the plan s AFTAP is (i) less than 80%, or (ii) would be less than 80% taking into account such an amendment. This restriction will not apply to an amendment that provides a benefit increase that is not based on compensation, if the rate of increase does not exceed the contemporaneous rate of increase in the average wages of participants covered by the amendment. This restriction will cease to apply as of the first day of the plan year in which the sponsor makes a contribution equal to (i) the minimum required contribution under Code 430, plus (ii) either (A) the 12

15 Three Alternative Approaches when Preparing Amendments when Code 436(d) Applies (Preamble, at 53026) amount of the increase in the plan s funding target attributable to the amendment, or (B) an amount sufficient to bring the plan s AFTAP to 80%. 1. Two-Step Approach. If the benefit election package does not take into account the restrictions under section 436(d), during the Code 436(d) restriction period, a plan must permit the participant to either: a. choose another optional form of benefit that does not have a restriction, b. defer commencement of the payments to a later annuity starting date, or c. if the AFTAP is at least 60% but less than 80%, elect to bifurcate the benefit that is, to receive the unrestricted portion in the optional form chosen and to make a separate election with respect to the remaining portion of the benefit (the restricted portion). If a participant, thus, elects a form of benefit that is not permitted pursuant to a restriction, then the participant must be informed which benefit options currently are available in order to enable the participant to make a new election among the available forms if the participant so chooses. 2. One-Step Approach. The one-step process eliminates the need to go back to the participant if the participant elects a restricted form of benefit. A participant who elects an optional form of benefit that could be subject to restrictions also would elect a backup distribution form that would apply if restrictions are applicable as of the annuity starting date for the distribution. As part of the backup election, this one-step process also would provide the participant with the opportunity to defer commencement and, if the AFTAP is at least 60% but less than 80%, to bifurcate the benefit. 3. Modified One-Step Approach. The third alternative anticipates the application of the Code 436(d) restriction on prohibited payments. With respect to an optional form of benefit that includes a prohibited payment that is not permitted to be paid and for which no additional information is needed to make that determination (such as information regarding a social security leveling optional form of benefit), the plan may permit separate elections with respect to the restricted and unrestricted portions of that optional form of benefit. However, this alternative must apply to all the optional forms for which no additional information from the participant or beneficiary is needed to make that determination and for which the plan identifies the option that the bifurcation election replaces. *SPECIAL NOTE -- For example, if the plan s prohibited payments include a single-sum payment, installments for 10 years, and various life annuities with 13

16 social security leveling features that depend on information from the participant regarding assumed social security commencement date and social security amount, then during this period the plan can offer 50% of the single-sum payment and 50% of the 10-year installments, without having to offer half of each of the potential life annuities with social security leveling features. Thus, the package presented to a participant would generally present optional forms of benefit that satisfy the requirements of Code 436(d) at the annuity starting date (but if the participant were to elect a life annuity with a social security leveling feature that is not permitted to be paid, then the plan would have to follow the two-step approach). Under this approach, if the restrictions are lifted after the annuity starting date, then updated information should be provided to the participant. Outstanding Issues (Preamble, at 53034) 1. Can an actuary and/or a plan administrator intentionally delay a certification? The Service will address this matter in future regulations and will coordinate with the Department of Labor to address any fiduciary issues. 2. How are mergers, consolidations and transfers of plan assets treated in determining whether there has been an increase in benefits? We await further guidance. The Service has reserved Treas. Reg (c)(6). Good Article on Funding and Benefit Restrictions Practitioners should read James E. Holland, Jr. s article in BNA s Pension & Benefits Reporter, BNA Insights, December 28, 2010, PLAN FUNDING AND BENEFIT RESTRICTIONS: AN ANALYSIS OF COMPLEX INTERACTIONS AMONG CERTAIN PROVISIONS IN REGULATIONS UNDER TAX CODE SECTIONS 430 AND EMF_US v14 14