VFCP Lost Earnings on Delinquent Contributions

[holdco]

Good afternoon, everyone

Hopefully an easy question: we'd like to VFCP a plan for delinquent contributions. Section 5(b)(5)(ii) says that Lost Earnings SHALL (emphasis mine) be calculated by the IRC 6621 underpayment rate, etc., etc.

However, the DOL says the following on their website (http://www.dol.gov/ebsa/faqs/faq_vfcp2.html):

In order to correct under the program, you will need to calculate the lost earnings on the delinquent contributions. For purposes of correction under the program, the rate of return to use is the highest of:

The rate of return of the plan for non-participant directed plans or of individual participant accounts

Restoration of profits (as defined under the program)

The Internal Revenue Code §6621 rate. How to calculate each of those amounts is demonstrated in the questions and answers below

However, I have to think that the actual reference to this has to be in the VCFP procedure (Federal Register Vol. 71, No. 75, April 19, 2006). I can't find it anywhere. The word "highest" doesn't even appear in the procedure, and the word "higher" is only in the context of transactions that aren't ours, and still referencing the 5(b)(5) calculation. Can anyone point me to a point in the procedure where it says we can choose between the IRS rates via the VFCP calculator, or our plan's highest rate? I realize it's usually advantageous to use the IRS rate, it being lower, but not always, such as in the case of losses.

Any help would be greatly appreciated. Thank you!