§ 1085. Additional funding rules for multiemployer plans in endangered status or critical status

(iv) Limitation on action to suspend benefits No action challenging a suspension of benefits following the final authorization to suspend or the denial of an application for suspension of benefits pursuant to this paragraph may be brought after one year after the earliest date on which the plaintiff acquired or should have acquired actual knowledge of the existence of such cause of action.

(J) Special rule for emergence from critical status A plan certified to be in critical and declining status pursuant to projections made under subsection (b)(3) for which a suspension of benefits has been made by the plan sponsor pursuant to this paragraph shall not emerge from critical status under paragraph (4)(B), until such time as—

(i) the plan is no longer certified to be in critical or endangered status under paragraphs (1) and (2) of subsection (b), and

(ii) the plan is projected to avoid insolvency under section 1426 of this title.

(f) Rules for operation of plan during adoption and rehabilitation period

(1) Compliance with rehabilitation plan

(A) In general A plan may not be amended after the date of the adoption of a rehabilitation plan under subsection (e) so as to be inconsistent with the rehabilitation plan.

(B) Special rules for benefit increases A plan may not be amended after the date of the adoption of a rehabilitation plan under subsection (e) so as to increase benefits, including future benefit accruals, unless the plan actuary certifies that such increase is paid for out of additional contributions not contemplated by the rehabilitation plan, and, after taking into account the benefit increase, the multiemployer plan still is reasonably expected to emerge from critical status by the end of the rehabilitation period on the schedule contemplated in the rehabilitation plan.

(2) Restriction on lump sums and similar benefits

(A) In general Effective on the date the notice of certification of the plan’s critical status for the initial critical year under subsection (b)(3)(D) is sent, and notwithstanding section 1054(g) of this title, the plan shall not pay—

(i) any payment, in excess of the monthly amount paid under a single life annuity (plus any social security supplements described in the last sentence of section 1054(b)(1)(G) of this title), to a participant or beneficiary whose annuity starting date (as defined in section 1055(h)(2) of this title) occurs after the date such notice is sent,

(ii) any payment for the purchase of an irrevocable commitment from an insurer to pay benefits, and

(iii) any other payment specified by the Secretary of the Treasury by regulations.

(B) Exception Subparagraph (A) shall not apply to a benefit which under section 1053(e) of this title may be immediately distributed without the consent of the participant or to any makeup payment in the case of a retroactive annuity starting date or any similar payment of benefits owed with respect to a prior period.

(3) Special rules for plan adoption period During the period beginning on the date of the certification under subsection (b)(3)(A) for the initial critical year and ending on the date of the adoption of a rehabilitation plan—

(A) the plan sponsor may not accept a collective bargaining agreement or participation agreement with respect to the multiemployer plan that provides for—

(i) a reduction in the level of contributions for any participants,

(ii) a suspension of contributions with respect to any period of service, or

(iii) any new direct or indirect exclusion of younger or newly hired employees from plan participation, and

(B) no amendment of the plan which increases the liabilities of the plan by reason of any increase in benefits, any change in the accrual of benefits, or any change in the rate at which benefits become nonforfeitable under the plan may be adopted unless the amendment is required as a condition of qualification under part I of subchapter D of chapter 1 of title 26 or to comply with other applicable law.

(g) Adjustments disregarded in withdrawal liability determination

(1) Benefit reduction Any benefit reductions under subsection (e)(8) or (f) or benefit reductions or suspensions while in critical and declining status under subsection (e)(9)),77 So in original. There is no opening parenthesis corresponding to the second closing parenthesis. unless the withdrawal occurs more than ten years after the effective date of a benefit suspension by a plan in critical and declining status, shall be disregarded in determining a plan’s unfunded vested benefits for purposes of determining an employer’s withdrawal liability under section 1381 of this title.

(2) Surcharges Any surcharges under subsection (e)(7) shall be disregarded in determining the allocation of unfunded vested benefits to an employer under section 1391 of this title and in determining the highest contribution rate under section 1399(c) of this title, except for purposes of determining the unfunded vested benefits attributable to an employer under section 1391(c)(4) of this title or a comparable method approved under section 1391(c)(5) of this title.

(3) Contribution increases required by funding improvement or rehabilitation plan

(A) In general Any increase in the contribution rate (or other increase in contribution requirements unless due to increased levels of work, employment, or periods for which compensation is provided) that is required or made in order to enable the plan to meet the requirement of the funding improvement plan or rehabilitation plan shall be disregarded in determining the allocation of unfunded vested benefits to an employer under section 1391 of this title and in determining the highest contribution rate under section 1399(c) of this title, except for purposes of determining the unfunded vested benefits attributable to an employer under section 1391(c)(4) of this title or a comparable method approved under section 1391(c)(5) of this title.

(B) Special rules For purposes of this paragraph, any increase in the contribution rate (or other increase in contribution requirements) shall be deemed to be required or made in order to enable the plan to meet the requirement of the funding improvement plan or rehabilitation plan except for increases in contribution requirements due to increased levels of work, employment, or periods for which compensation is provided or additional contributions are used to provide an increase in benefits, including an increase in future benefit accruals, permitted by subsection (d)(1)(B) or (f)(1)(B).

(4) Emergence from endangered or critical status In the case of increases in the contribution rate (or other increases in contribution requirements unless due to increased levels of work, employment, or periods for which compensation is provided) disregarded pursuant to paragraph (3), this subsection shall cease to apply as of the expiration date of the collective bargaining agreement in effect when the plan emerges from endangered or critical status. Notwithstanding the preceding sentence, once the plan emerges from critical or endangered status, increases in the contribution rate disregarded pursuant to paragraph (3) shall continue to be disregarded in determining the highest contribution rate under section 1399(c) of this title for plan years during which the plan was in endangered or critical status.

(5) Simplified calculations The Pension Benefit Guaranty Corporation shall prescribe simplified methods for the application of this subsection in determining withdrawal liability and payment amounts under section 1399(c) of this title.

(h) Expedited resolution of plan sponsor decisions If, within 60 days of the due date for adoption of a funding improvement plan under subsection (c) or a rehabilitation plan under subsection (e), the plan sponsor of a plan in endangered status or a plan in critical status has not agreed on a funding improvement plan or rehabilitation plan, then any member of the board or group that constitutes the plan sponsor may require that the plan sponsor enter into an expedited dispute resolution procedure for the development and adoption of a funding improvement plan or rehabilitation plan.

(i) Nonbargained participation

(1) Both bargained and nonbargained employee-participants In the case of an employer that contributes to a multiemployer plan with respect to both employees who are covered by one or more collective bargaining agreements and employees who are not so covered, if the plan is in endangered status or in critical status, benefits of and contributions for the nonbargained employees, including surcharges on those contributions, shall be determined as if those nonbargained employees were covered under the first to expire of the employer’s collective bargaining agreements in effect when the plan entered endangered or critical status.

(2) Nonbargained employees only In the case of an employer that contributes to a multiemployer plan only with respect to employees who are not covered by a collective bargaining agreement, this section shall be applied as if the employer were the bargaining party, and its participation agreement with the plan were a collective bargaining agreement with a term ending on the first day of the plan year beginning after the employer is provided the schedule or schedules described in subsections (c) and (e).

(j) Definitions; actuarial method For purposes of this section—

(1) Bargaining party The term “bargaining party” means—

(A)

(i) except as provided in clause (ii), an employer who has an obligation to contribute under the plan; or

(ii) in the case of a plan described under section 404(c) of title 26, or a continuation of such a plan, the association of employers that is the employer settlor of the plan; and

(B) an employee organization which, for purposes of collective bargaining, represents plan participants employed by an employer who has an obligation to contribute under the plan.

(2) Funded percentage The term “funded percentage” means the percentage equal to a fraction—

(A) the numerator of which is the value of the plan’s assets, as determined under section 1084(c)(2) of this title, and

(B) the denominator of which is the accrued liability of the plan, determined using actuarial assumptions described in section 1084(c)(3) of this title.

(3) Accumulated funding deficiency The term “accumulated funding deficiency” has the meaning given such term in section 1084(a) of this title.

(4) Active participant The term “active participant” means, in connection with a multiemployer plan, a participant who is in covered service under the plan.

(5) Inactive participant The term “inactive participant” means, in connection with a multiemployer plan, a participant, or the beneficiary or alternate payee of a participant, who—

(A) is not in covered service under the plan, and

(B) is in pay status under the plan or has a nonforfeitable right to benefits under the plan.

(6) Pay status A person is in pay status under a multiemployer plan if—

(A) at any time during the current plan year, such person is a participant or beneficiary under the plan and is paid an early, late, normal, or disability retirement benefit under the plan (or a death benefit under the plan related to a retirement benefit), or

(B) to the extent provided in regulations of the Secretary of the Treasury, such person is entitled to such a benefit under the plan.

(7) Obligation to contribute The term “obligation to contribute” has the meaning given such term under section 1392(a) of this title.

(8) Actuarial method Notwithstanding any other provision of this section, the actuary’s determinations with respect to a plan’s normal cost, actuarial accrued liability, and improvements in a plan’s funded percentage under this section shall be based upon the unit credit funding method (whether or not that method is used for the plan’s actuarial valuation).

(9) Plan sponsor In the case of a plan described under section 404(c) of title 26, or a continuation of such a plan, the term “plan sponsor” means the bargaining parties described under paragraph (1).

(10) Benefit commencement date The term “benefit commencement date” means the annuity starting date (or in the case of a retroactive annuity starting date, the date on which benefit payments begin).

(Pub. L. 93–406, title I, § 305, as added Pub. L. 109–280, title II, § 202(a), Aug. 17, 2006, 120 Stat. 868; amended Pub. L. 110–458, title I, § 102(b)(1)(B)–(G), Dec. 23, 2008, 122 Stat. 5100, 5101; Pub. L. 113–235, div. O, title I, §§ 102(a), 103(a), 104(a), 105(a), 106(a), 107(a), 109(a), title II, § 201(a)(1)–(3), (5)–(7)(A), Dec. 16, 2014, 128 Stat. 2774, 2777, 2779, 2781, 2783, 2789, 2798, 2799–2809.)

Editorial Notes

References in Text

The enactment of the Pension Protection Act of 2006, referred to in subsec. (e)(4)(B)(i)(II), means the enactment of Pub. L. 109–280, which was approved Aug. 17, 2006.

Prior Provisions

A prior section 1085, Pub. L. 93–406, title I, § 305, Sept. 2, 1974, 88 Stat. 873, related to alternative minimum funding standard, prior to repeal by Pub. L. 109–280, title I, § 101(a), (d), Aug. 17, 2006, 120 Stat. 784, 789, applicable to plan years beginning after 2007.

Amendments

2014—Subsec. (a)(3). Pub. L. 113–235, § 201(a)(1), added par. (3).

Subsec. (b)(1). Pub. L. 113–235, § 104(a)(1)(A), substituted “the plan is not in critical status for the plan year and is not described in paragraph (5),” for “the plan is not in critical status for the plan year”.

Subsec. (b)(3)(A)(i). Pub. L. 113–235, § 201(a)(3), substituted “, whether” for “and whether” and inserted “, and whether or not the plan is or will be in critical and declining status for such plan year” before “, and” at end.

Pub. L. 113–235, § 104(a)(3), which directed insertion of “, or would be in endangered status for such plan year but for paragraph (5),” after “endangered status for a plan year”, was executed by making the insertion after “endangered status for such plan year” to reflect the probable intent of Congress.

Pub. L. 113–235, § 102(a)(2)(A), substituted “or for any of the succeeding 5 plan years, and” for “, and” at end.

Subsec. (b)(3)(B)(i). Pub. L. 113–235, § 102(a)(2)(B)(i), substituted “Except as provided in clause (iv), in making the determinations” for “In making the determinations”.

Subsec. (b)(3)(B)(iv). Pub. L. 113–235, § 201(a)(5), added cl. (iv) relating to projections of critical and declining status.

Pub. L. 113–235, § 102(a)(2)(B)(ii), added cl. (iv) relating to projections relating to critical status in succeeding plan years.

Subsec. (b)(3)(D)(i). Pub. L. 113–235, § 102(a)(3)(A)(ii), inserted at end “In any case in which a plan sponsor elects to be in critical status for a plan year under paragraph (4), the plan sponsor shall notify the Secretary of the Treasury of such election not later than 30 days after the date of such certification or such other time as the Secretary of the Treasury may prescribe by regulations or other guidance.”

Pub. L. 113–235, § 102(a)(3)(A)(i), inserted “or in which a plan sponsor elects to be in critical status for a plan year under paragraph (4)” after “endangered or critical status for a plan year”.

Subsec. (b)(3)(D)(iii). Pub. L. 113–235, § 104(a)(2)(B), added cl. (iii). Former cl. (iii) redesignated (iv).

Subsec. (b)(3)(D)(iv). Pub. L. 113–235, § 104(a)(2)(C), substituted “clauses (ii) and (iii)” for “clause (ii)”.

Pub. L. 113–235, § 104(a)(2)(A), redesignated cl. (iii) as (iv). Former cl. (iv) redesignated (v).

Pub. L. 113–235, § 102(a)(3)(B), added cl. (iv).

Subsec. (b)(3)(D)(v). Pub. L. 113–235, § 104(a)(2)(A), redesignated cl. (iv) as (v).

Subsec. (b)(4). Pub. L. 113–235, § 102(a)(1), added par. (4).

Subsec. (b)(5). Pub. L. 113–235, § 104(a)(1)(B), added par. (5).

Subsec. (b)(6). Pub. L. 113–235, § 201(a)(2), added par. (6).

Subsec. (c)(3)(A)(i)(I). Pub. L. 113–235, § 105(a)(1), substituted “of the first plan year for which the plan is certified to be in endangered status pursuant to paragraph (b)(3)” for “of such period”.

Subsec. (c)(3)(A)(ii). Pub. L. 113–235, § 105(a)(2), substituted “the last plan year” for “any plan year”.

Subsec. (c)(7). Pub. L. 113–235, § 107(a)(1), amended par. (7) generally. Prior to amendment, par. (7) related to imposition of default schedule where failure to adopt funding improvement plan.

Subsec. (d). Pub. L. 113–235, § 106(a), amended subsec. (d) generally. Prior to amendment, subsec. (d) related to rules for operation of plan during adoption and improvement periods.

Subsec. (e)(3)(C). Pub. L. 113–235, § 107(a)(2), amended subpar. (C) generally. Prior to amendment, subpar. (C) related to imposition of default schedule where failure to adopt rehabilitation plan.

Subsec. (e)(4)(B). Pub. L. 113–235, § 103(a), amended subpar. (B) generally. Prior to amendment, subpar. (B) related to emergence of plan from critical status.

Subsec. (e)(9). Pub. L. 113–235, § 201(a)(6), added par. (9).

Pub. L. 113–235, § 109(a)(1), struck out par. (9) which related to adjustments disregarded in withdrawal liability determination.

Subsec. (f)(3), (4). Pub. L. 113–235, § 109(a)(2), redesignated par. (4) as (3), substituted “During the period beginning on the date of the certification under subsection (b)(3)(A) for the initial critical year and ending on the date of the adoption of a rehabilitation plan—” for “During the rehabilitation plan adoption period—” in introductory provisions, and struck out former par. (3). Text read as follows “Any benefit reductions under this subsection shall be disregarded in determining a plan’s unfunded vested benefits for purposes of determining an employer’s withdrawal liability under section 1381 of this title.”

Subsec. (g). Pub. L. 113–235, § 109(a)(4), added subsec. (g). Former subsec. (g) redesignated (h).

Subsec. (g)(1). Pub. L. 113–235, § 201(a)(7)(A), inserted “or benefit reductions or suspensions while in critical and declining status under subsection (e)(9)), unless the withdrawal occurs more than ten years after the effective date of a benefit suspension by a plan in critical and declining status,” after “benefit reductions under subsection (e)(8) or (f)”.

Subsecs. (h) to (j). Pub. L. 113–235, § 109(a)(3), redesignated subsecs. (g), (h), and (i) as (h), (i), and (j), respectively.

2008—Subsec. (b)(3)(C). Pub. L. 110–458, § 102(b)(1)(B), substituted “section 1021(b)(1)” for “section 1021(b)(4)”.

Subsec. (b)(3)(D)(iii). Pub. L. 110–458, § 102(b)(1)(C), substituted “The Secretary of the Treasury, in consultation with the Secretary” for “The Secretary”.

Subsec. (c)(7)(A)(ii). Pub. L. 110–458, § 102(b)(1)(D)(i), substituted “to adopt a contribution schedule with terms consistent with the funding improvement plan and a schedule from the plan sponsor,” for “to agree on changes to contribution or benefit schedules necessary to meet the applicable benchmarks in accordance with the funding improvement plan,”.

Subsec. (c)(7)(B), (C). Pub. L. 110–458, § 102(b)(1)(D)(ii), (iii), added subpars. (B) and (C) and struck out former subpar. (B). Prior to amendment, text read as follows: “The date specified in this subparagraph is the earlier of the date—

“(i) on which the Secretary certifies that the parties are at an impasse, or

“(ii) which is 180 days after the date on which the collective bargaining agreement described in subparagraph (A) expires.”

Subsec. (e)(3)(C)(i)(II). Pub. L. 110–458, § 102(b)(1)(E)(i)(I), substituted “to adopt a contribution schedule with terms consistent with the rehabilitation plan and a schedule from the plan sponsor under paragraph (1)(B)(i),” for “contribution or benefit schedules with terms consistent with the rehabilitation plan and the schedule from the plan sponsor under paragraph (1)(B)(i),”.

Subsec. (e)(3)(C)(ii), (iii). Pub. L. 110–458, § 102(b)(1)(E)(i)(II), (III), added cls. (ii) and (iii) and struck out former cl. (ii). Prior to amendment, text read as follows: “The date specified in this clause is the earlier of the date—

“(I) on which the Secretary certifies that the parties are at an impasse, or

“(II) which is 180 days after the date on which the collective bargaining agreement described in clause (i) expires.”

Subsec. (e)(4)(A)(ii). Pub. L. 110–458, § 102(b)(1)(E)(ii)(I), struck out “the date of” before “the due date”.

Subsec. (e)(4)(B). Pub. L. 110–458, § 102(b)(1)(E)(ii)(II), substituted “but taking” for “and taking”.

Subsec. (e)(6). Pub. L. 110–458, § 102(b)(1)(E)(iii), substituted “the last sentence of paragraph (1)” for “paragraph (1)(B)(i)” in introductory provisions and “establish” for “established” in concluding provisions.

Subsec. (e)(8)(C)(iii). Pub. L. 110–458, § 102(b)(1)(E)(iv), substituted “the Secretary of the Treasury, in consultation with the Secretary” for “the Secretary” in subcl. (I) and “Secretary of the Treasury” for “Secretary” in concluding provisions.

Subsec. (e)(9)(B). Pub. L. 110–458, § 102(b)(1)(E)(v), substituted “the allocation of unfunded vested benefits to an employer” for “an employer’s withdrawal liability”.

Subsec. (f)(2)(A)(i). Pub. L. 110–458, § 102(b)(1)(F), inserted at end “to a participant or beneficiary whose annuity starting date (as defined in section 1055(h)(2) of this title) occurs after the date such notice is sent,”.

Subsec. (g). Pub. L. 110–458, § 102(b)(1)(G), inserted “under subsection (c)” before “or a rehabilitation plan under subsection (e)”.

Statutory Notes and Related Subsidiaries

Effective Date of 2014 Amendment

Amendment by section 102(a) of Pub. L. 113–235 applicable with respect to plan years beginning after Dec. 31, 2014, see section 102(c) of div. O of Pub. L. 113–235, set out as a note under section 432 of Title 26, Internal Revenue Code.

Amendment by section 103(a) of Pub. L. 113–235 applicable with respect to plan years beginning after Dec. 31, 2014, see section 103(c) of div. O of Pub. L. 113–235, set out as a note under section 432 of Title 26, Internal Revenue Code.

Amendment by section 104(a) of Pub. L. 113–235 applicable with respect to plan years beginning after Dec. 31, 2014, see section 104(c) of div. O of Pub. L. 113–235, set out as a note under section 432 of Title 26, Internal Revenue Code.

Amendment by section 105(a) of Pub. L. 113–235 applicable with respect to plan years beginning after Dec. 31, 2014, see section 105(c) of div. O of Pub. L. 113–235, set out as a note under section 432 of Title 26, Internal Revenue Code.

Amendment by section 106(a) of Pub. L. 113–235 applicable with respect to plan years beginning after Dec. 31, 2014, see section 106(c) of div. O of Pub. L. 113–235, set out as a note under section 432 of Title 26, Internal Revenue Code.

Amendment by section 107(a) of Pub. L. 113–235 applicable with respect to plan years beginning after Dec. 31, 2014, see section 107(c) of div. O of Pub. L. 113–235, set out as a note under section 432 of Title 26, Internal Revenue Code.

Amendment by section 109(a) of Pub. L. 113–235 applicable to benefit reductions and increases in the contribution rate or other required contribution increases that go into effect during plan years beginning after Dec. 31, 2014, and to surcharges the obligation for which accrue on or after Dec. 31, 2014, see section 109(c) of div. O of Pub. L. 113–235, set out as a note under section 432 of Title 26, Internal Revenue Code.

Effective Date of 2008 Amendment

Amendment by Pub. L. 110–458 effective as if included in the provisions of Pub. L. 109–280 to which the amendment relates, except as otherwise provided, see section 112 of Pub. L. 110–458, set out as a note under section 72 of Title 26, Internal Revenue Code.

Effective Date

Section applicable with respect to plan years beginning after 2007, with special rules for certain notices and certain restored benefits, see section 202(f) of Pub. L. 109–280, set out as an Effective Date of 2006 Amendment note under section 1082 of this title.

Temporary Delay of Designation of Multiemployer Plans as in Endangered, Critical, or Critical and Declining Status

For provisions allowing election of delay of status designation of endangered, critical, or critical and declining multiemployer plans for purposes of this section, see section 9701 of Pub. L. 117–2, set out as a note under section 432 of Title 26, Internal Revenue Code.

Temporary Extension of the Funding Improvement and Rehabilitation Periods for Multiemployer Pension Plans in Critical and Endangered Status for 2020 or 2021

For provisions allowing election of extension of funding improvement period or rehabilitation period of endangered or critical multiemployer plans for purposes of this section, see section 9702 of Pub. L. 117–2, set out as a note under section 432 of Title 26, Internal Revenue Code.

Guidance

Pub. L. 113–235, div. O, title II, § 201(a)(8), Dec. 16, 2014, 128 Stat. 2810, provided that: “Not later than 180 days after the date of the enactment of this Act [Dec. 16, 2014], the Secretary of the Treasury, in consultation with the Pension Benefit Guaranty Corporation and the Secretary of Labor, shall publish appropriate guidance to implement section 305(e)(9) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1085(e)(9)).”

Temporary Delay of Designation of Multiemployer Plans as in Endangered or Critical Status

For provisions allowing election of delay of status designation of endangered or critical multiemployer plans for purposes of this section, see section 204 of Pub. L. 110–458, set out as a note under section 432 of Title 26, Internal Revenue Code.

Temporary Extension of the Funding Improvement and Rehabilitation Periods for Multiemployer Pension Plans in Critical and Endangered Status for 2008 or 2009

For provisions allowing election of extension of funding improvement period or rehabilitation period of endangered or critical multiemployer plans for purposes of this section, see section 205 of Pub. L. 110–458, set out as a note under section 432 of Title 26, Internal Revenue Code.

Special Rule for Certain Benefits Funded Under an Agreement Approved by the Pension Benefit Guaranty Corporation

For applicability of this section to a multiemployer plan that is a party to an agreement that was approved by the Pension Benefit Guaranty Corporation prior to June 30, 2005, and that increases benefits and provides for certain withdrawal liability rules, see section 206 of Pub. L. 109–280, set out as a note under section 412 of Title 26, Internal Revenue Code.