The most eagerly anticipated aspect of the IFR was how the PBGCwill calculate the amount of SFA available for eligiblemultiemployer plans. Under ARPA, the PBGC was given latitude toprovide "such amount required for the plan to pay all benefitsdue during the period beginning on the date of payment of thespecial financial assistance payment and ending on the last day ofthe plan year ending in 2051." The PBGC took a narrowinterpretation of this language and determined that the amount ofSFA is calculated after taking into account all of a plan'sexisting and projected obligations and resources (including thepresent value of all future contributions, withdrawal liabilitypayments, and other payments expected to be made to the planthrough the plan year ending in 2051). ProskauerObservation: A number of interested parties hadsuggested alternative methodologies that they viewed as moreconsistent with the legislative intent to provide a permanentsolution to the issues faced by these troubled plans. However, thePBGC concluded that these proposed methodologies were notconsistent with the statutory language and were ends-driven. While,under the PBGC's interpretation, ARPA still provides at least atemporary solution for decades, it is possible that some plans willnot receive sufficient SFA to permanently avoidinsolvency. The IFR provides specific definitions for the value of planobligations, plan resources, and the date by which to make thesedeterminations, defined as the "SFA measurement date"– which is the last day of the calendar quarter preceding thedate on which a plan files an application for SFA. The IFR also details the long-term interest rate and the assumedinterest rate that the plans must use in their calculation. Theassumed interest rate is the lesser of the interest rate used forfunding standard account projections in the most recent zone statuscertification completed before 2021 or 200 basis points plus thethird segment rate interest rate in the last four months prior tothe filing of the application. ProskauerObservation: This is particularly significant forplans that value liabilities with discount rates higher than theinterest rate cap of 200 basis points plus the third segment rate.Those plans will be required to calculate the amount of their SFAbased on the assumption that the SFA will earn the interest ratecapped amount, and the use of the lower rate will allow the plansto receive more SFA. However, as noted below, the SFA can only beinvested in investment grade bonds (or similar permissibleinvestments), which are currently expected to earn far less. Anumber of interested parties had encouraged the PBGC to recognizethis issue and use bifurcated interest rates, but it declined to doso. Thus, the viability of plans receiving SFA will depend in parton the investment returns of the non-SFA assets in the plan'sportfolio. The IFR also contained significantly more information about thePBGC's approach to its review of plan assumptions other thanthe interest rate. An application that proposes changes to theassumptions from what was in the applicant plan's last zonestatus certification prior to 2021 will need to contain extensivedata supporting the proposed assumption change, and the PBGC willgive far more intensive scrutiny to changed assumptions. ThePBGC's view appears to be that assumptions made after thepassage of ARPA are more likely to have been influenced by a desireto increase the SFA. ProskauerObservation: Coincident with its issuance of theIFR, the PBGC issued guidelines for assumption changes that planscan (but are not required to) use, if reasonable. These guidelinesprovide methodologies for extending assumptions to years that werenot included in the zone certification (e.g., because the plan wasprojected to be insolvent before those years) and for changingassumptions generally. These guidelines are of particular relevanceto plans that have experienced demographic or industry activitychanges since the beginning of the COVID-19 pandemic. In other steps that appear to be designed to avoid what the PBGCviewed as artificially inflating the amount of SFA for which a planis eligible, the IFR states that the amount of assistance cannot beincreased by virtue of certain events occurring after the releaseof its guidance. These events include plan mergers, assettransfers, benefit increases (other than required restorations ofbenefit suspensions), and contribution decreases. Content, Timing, and Review ofApplications The IFR contains detailed information about what must beincluded in an application, and there is further guidance in theapplication instructions and various templates that were issued bythe PBGC contemporaneously with the IFR.https://www.mondaq.com/unitedstates/employee-benefits-compensation/1092536/pbgc-issues-guidance-on-new-special-financial-assistance-program-for-troubled-multiemployer-pension-plans
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