Collapse to view only § 1344. Allocation of assets
- § 1341. Termination of single-employer plans
- § 1341a. Termination of multiemployer plans
- § 1342. Institution of termination proceedings by the corporation
- § 1343. Reportable events
- § 1344. Allocation of assets
- § 1345. Recapture of payments
- § 1346. Reports to trustee
- § 1347. Restoration of plans
- § 1348. Termination date
- § 1349. Repealed.
- § 1350. Missing participants
§ 1341. Termination of single-employer plans
(a) General rules governing single-employer plan terminations
(1) Exclusive means of plan termination
(2) 60-day notice of intent to terminate
(3) Adherence to collective bargaining agreements
(b) Standard termination of single-employer plans
(1) General requirementsA single-employer plan may terminate under a standard termination only if—
(A) the plan administrator provides the 60-day advance notice of intent to terminate to affected parties required under subsection (a)(2),
(B) the requirements of subparagraphs (A) and (B) of paragraph (2) are met,
(C) the corporation does not issue a notice of noncompliance under subparagraph (C) of paragraph (2), and
(D) when the final distribution of assets occurs, the plan is sufficient for benefit liabilities (determined as of the termination date).
(2) Termination procedure
(A) Notice to the corporationAs soon as practicable after the date on which the notice of intent to terminate is provided pursuant to subsection (a)(2), the plan administrator shall send a notice to the corporation setting forth—
(i) certification by an enrolled actuary—(I) of the projected amount of the assets of the plan (as of a proposed date of final distribution of assets),(II) of the actuarial present value (as of such date) of the benefit liabilities (determined as of the proposed termination date) under the plan, and(III) that the plan is projected to be sufficient (as of such proposed date of final distribution) for such benefit liabilities,
(ii) such information as the corporation may prescribe in regulations as necessary to enable the corporation to make determinations under subparagraph (C), and
(iii) certification by the plan administrator that—(I) the information on which the enrolled actuary based the certification under clause (i) is accurate and complete, and(II) the information provided to the corporation under clause (ii) is accurate and complete.
Clause (i) and clause (iii)(I) shall not apply to a plan described in section 412(i) 1
1 See References in Text note below.
of title 26.(B) Notice to participants and beneficiaries of benefit commitments 2
2 So in original. Probably should be “benefit liabilities”.
No later than the date on which a notice is sent by the plan administrator under subparagraph (A), the plan administrator shall send a notice to each person who is a participant or beneficiary under the plan—(i) specifying the amount of the benefit liabilities (if any) attributable to such person as of the proposed termination date and the benefit form on the basis of which such amount is determined, and
(ii) including the following information used in determining such benefit liabilities:(I) the length of service,(II) the age of the participant or beneficiary,(III) wages,(IV) the assumptions, including the interest rate, and(V) such other information as the corporation may require.
Such notice shall be written in such manner as is likely to be understood by the participant or beneficiary and as may be prescribed in regulations of the corporation.
(C) Notice from the corporation of noncompliance
(i) In generalWithin 60 days after receipt of the notice under subparagraph (A), the corporation shall issue a notice of noncompliance to the plan administrator if—(I) it determines, based on the notice sent under paragraph (2)(A) of subsection (b), that there is reason to believe that the plan is not sufficient for benefit liabilities,(II) it otherwise determines, on the basis of information provided by affected parties or otherwise obtained by the corporation, that there is reason to believe that the plan is not sufficient for benefit liabilities, or(III) it determines that any other requirement of subparagraph (A) or (B) of this paragraph or of subsection (a)(2) has not been met, unless it further determines that the issuance of such notice would be inconsistent with the interests of participants and beneficiaries.
(ii) Extension
(D) Final distribution of assets in absence of notice of noncomplianceThe plan administrator shall commence the final distribution of assets pursuant to the standard termination of the plan as soon as practicable after the expiration of the 60-day (or extended) period referred to in subparagraph (C), but such final distribution may occur only if—
(i) the plan administrator has not received during such period a notice of noncompliance from the corporation under subparagraph (C), and
(ii) when such final distribution occurs, the plan is sufficient for benefit liabilities (determined as of the termination date).
(3) Methods of final distribution of assets
(A) In generalIn connection with any final distribution of assets pursuant to the standard termination of the plan under this subsection, the plan administrator shall distribute the assets in accordance with section 1344 of this title. In distributing such assets, the plan administrator shall—
(i) purchase irrevocable commitments from an insurer to provide all benefit liabilities under the plan, or
(ii) in accordance with the provisions of the plan and any applicable regulations, otherwise fully provide all benefit liabilities under the plan. A transfer of assets to the corporation in accordance with section 1350 of this title on behalf of a missing participant shall satisfy this subparagraph with respect to such participant.
(B) Certification to the corporation of final distribution of assets
(4) Continuing authority
(5) Special rule for certain plans where cessation or change in membership of a controlled group
(A) In generalExcept as provided in subparagraphs (B) and (D), if—
(i) there is 3
3 So in original. The word “a” probably should appear.
transaction or series of transactions which result in a person ceasing to be a member of a controlled group, and(ii) such person immediately before the transaction or series of transactions maintained a single-employer plan which is a defined benefit plan which is fully funded,
then the interest rate used in determining whether the plan is sufficient for benefit liabilities or to otherwise assess plan liabilities for purposes of this subsection or section 1342(a)(4) of this title shall be not less than the interest rate used in determining whether the plan is fully funded.
(B) LimitationsSubparagraph (A) shall not apply to any transaction or series of transactions unless—
(i) any employer maintaining the plan immediately before or after such transaction or series of transactions—(I) has an outstanding senior unsecured debt instrument which is rated investment grade by each of the nationally recognized statistical rating organizations for corporate bonds that has issued a credit rating for such instrument, or(II) if no such debt instrument of such employer has been rated by such an organization but 1 or more of such organizations has made an issuer credit rating for such employer, all such organizations which have so rated the employer have rated such employer investment grade, and
(ii) the employer maintaining the plan after the transaction or series of transactions employs at least 20 percent of the employees located in the United States who were employed by such employer immediately before the transaction or series of transactions.
(C) Fully fundedFor purposes of subparagraph (A), a plan shall be treated as fully funded with respect to any transaction or series of transactions if—
(i) in the case of a transaction or series of transactions which occur in a plan year beginning before January 1, 2008, the funded current liability percentage determined under section 1082(d) of this title for the plan year is at least 100 percent, and
(ii) in the case of a transaction or series of transactions which occur in a plan year beginning on or after such date, the funding target attainment percentage determined under section 1083 of this title is, as of the valuation date for such plan year, at least 100 percent.
(D) 2 year limitation
(c) Distress termination of single-employer plans
(1) In generalA single-employer plan may terminate under a distress termination only if—
(A) the plan administrator provides the 60-day advance notice of intent to terminate to affected parties required under subsection (a)(2),
(B) the requirements of subparagraph (A) of paragraph (2) are met, and
(C) the corporation determines that the requirements of subparagraphs (B) and (D) of paragraph (2) are met.
(2) Termination requirements
(A) Information submitted to the corporationAs soon as practicable after the date on which the notice of intent to terminate is provided pursuant to subsection (a)(2), the plan administrator shall provide the corporation, in such form as may be prescribed by the corporation in regulations, the following information:
(i) such information as the corporation may prescribe by regulation as necessary to make determinations under subparagraph (B) and paragraph (3);
(ii) unless the corporation determines the information is not necessary for purposes of paragraph (3)(A) or section 1362 of this title, certification by an enrolled actuary of—(I) the amount (as of the proposed termination date and, if applicable, the proposed distribution date) of the current value of the assets of the plan,(II) the actuarial present value (as of such dates) of the benefit liabilities under the plan,(III) whether the plan is sufficient for benefit liabilities as of such dates,(IV) the actuarial present value (as of such dates) of benefits under the plan guaranteed under section 1322 of this title, and(V) whether the plan is sufficient for guaranteed benefits as of such dates;
(iii) in any case in which the plan is not sufficient for benefit liabilities as of such date—(I) the name and address of each participant and beneficiary under the plan as of such date, and(II) such other information as shall be prescribed by the corporation by regulation as necessary to enable the corporation to be able to make payments to participants and beneficiaries as required under section 1322(c) of this title; and
(iv) certification by the plan administrator that—(I) the information on which the enrolled actuary based the certifications under clause (ii) is accurate and complete, and(II) the information provided to the corporation under clauses (i) and (iii) is accurate and complete.
Clause (ii) and clause (iv)(I) shall not apply to a plan described in section 412(i) 1 of title 26.
(B) Determination by the corporation of necessary distress criteriaUpon receipt of the notice of intent to terminate required under subsection (a)(2) and the information required under subparagraph (A), the corporation shall determine whether the requirements of this subparagraph are met as provided in clause (i), (ii), or (iii). The requirements of this subparagraph are met if each person who is (as of the proposed termination date) a contributing sponsor of such plan or a member of such sponsor’s controlled group meets the requirements of any of the following clauses:
(i) Liquidation in bankruptcy or insolvency proceedingsThe requirements of this clause are met by a person if—(I) such person has filed or has had filed against such person, as of the proposed termination date, a petition seeking liquidation in a case under title 11 or under any similar Federal law or law of a State or political subdivision of a State (or a case described in clause (ii) filed by or against such person has been converted, as of such date, to a case in which liquidation is sought), and(II) such case has not, as of the proposed termination date, been dismissed.
(ii) Reorganization in bankruptcy or insolvency proceedingsThe requirements of this clause are met by a person if—(I) such person has filed, or has had filed against such person, as of the proposed termination date, a petition seeking reorganization in a case under title 11 or under any similar law of a State or political subdivision of a State (or a case described in clause (i) filed by or against such person has been converted, as of such date, to such a case in which reorganization is sought),(II) such case has not, as of the proposed termination date, been dismissed,(III) such person timely submits to the corporation any request for the approval of the bankruptcy court (or other appropriate court in a case under such similar law of a State or political subdivision) of the plan termination, and(IV) the bankruptcy court (or such other appropriate court) determines that, unless the plan is terminated, such person will be unable to pay all its debts pursuant to a plan of reorganization and will be unable to continue in business outside the chapter 11 reorganization process and approves the termination.
(iii) Termination required to enable payment of debts while staying in business or to avoid unreasonably burdensome pension costs caused by declining workforceThe requirements of this clause are met by a person if such person demonstrates to the satisfaction of the corporation that—(I) unless a distress termination occurs, such person will be unable to pay such person’s debts when due and will be unable to continue in business, or(II) the costs of providing pension coverage have become unreasonably burdensome to such person, solely as a result of a decline of such person’s workforce covered as participants under all single-employer plans of which such person is a contributing sponsor.
(C) Notification of determinations by the corporation
(D) Disclosure of termination information
(i) In generalA plan administrator that has filed a notice of intent to terminate under subsection (a)(2) shall provide to an affected party any information provided to the corporation under subparagraph (A) or the regulations under subsection (a)(2) not later than 15 days after—(I) receipt of a request from the affected party for the information; or(II) the provision of new information to the corporation relating to a previous request.
(ii) Confidentiality(I) In general(II) Limitation
(iii) Form and manner of information; charges(I) Form and manner(II) Reasonable charges
(iv) Authorized representative
(3) Termination procedure
(A) Determinations by the corporation relating to plan sufficiency for guaranteed benefits and for benefit liabilitiesIf the corporation determines that the requirements for a distress termination set forth in paragraphs (1) and (2) are met, the corporation shall—
(i) determine that the plan is sufficient for guaranteed benefits (as of the termination date) or that the corporation is unable to make such determination on the basis of information made available to the corporation,
(ii) determine that the plan is sufficient for benefit liabilities (as of the termination date) or that the corporation is unable to make such determination on the basis of information made available to the corporation, and
(iii) notify the plan administrator of the determinations made pursuant to this subparagraph as soon as practicable.
(B) Implementation of terminationAfter the corporation notifies the plan administrator of its determinations under subparagraph (A), the termination of the plan shall be carried out as soon as practicable, as provided in clause (i), (ii), or (iii).
(i) Cases of sufficiency for benefit liabilities
(ii) Cases of sufficiency for guaranteed benefits without a finding of sufficiency for benefit liabilities
(iii) Cases without any finding of sufficiency
(C) Finding after authorized commencement of termination that plan is unable to pay benefits
(i) Finding with respect to benefit liabilities which are not guaranteed benefits
(ii) Finding with respect to guaranteed benefits
(D) Administration of the plan during interim period
(i) In generalThe plan administrator shall—(I) meet the requirements of clause (ii) for the period commencing on the date on which the plan administrator provides a notice of distress termination to the corporation under subsection (a)(2) and ending on the date on which the plan administrator receives notification from the corporation of its determinations under subparagraph (A), and(II) meet the requirements of clause (ii) commencing on the date on which the plan administrator or the corporation makes a finding under subparagraph (C)(ii).
(ii) RequirementsThe requirements of this clause are met by the plan administrator if the plan administrator—(I) refrains from distributing assets or taking any other actions to carry out the proposed termination under this subsection,(II) pays benefits attributable to employer contributions, other than death benefits, only in the form of an annuity,(III) does not use plan assets to purchase irrevocable commitments to provide benefits from an insurer, and(IV) continues to pay all benefit liabilities under the plan, but, commencing on the proposed termination date, limits the payment of benefits under the plan to those benefits which are guaranteed by the corporation under section 1322 of this title or to which assets are required to be allocated under section 1344 of this title.
In the event the plan administrator is later determined not to have met the requirements for distress termination, any benefits which are not paid solely by reason of compliance with subclause (IV) shall be due and payable immediately (together with interest, at a reasonable rate, in accordance with regulations of the corporation).
(d) SufficiencyFor purposes of this section—
(1) Sufficiency for benefit liabilities
(2) Sufficiency for guaranteed benefits
(e) Limitation on the conversion of a defined benefit plan to a defined contribution plan
(Pub. L. 93–406, title IV, § 4041, Sept. 2, 1974, 88 Stat. 1020; Pub. L. 96–364, title IV, § 403(d), Sept. 26, 1980, 94 Stat. 1301; Pub. L. 99–272, title XI, §§ 11007, 11008(a), (b), 11009, Apr. 7, 1986, 100 Stat. 244, 247, 248; Pub. L. 100–203, title IX, §§ 9312(c)(1), (2), 9313(a)(1)–(2)(E), (b)(1)–(5), 9314(a), Dec. 22, 1987, 101 Stat. 1330–363 to 1330–366; Pub. L. 101–239, title VII, §§ 7881(f)(7), (g)(1)–(6), 7893(c), (d), Dec. 19, 1989, 103 Stat. 2440, 2441, 2447; Pub. L. 103–465, title VII, §§ 776(b)(3), 778(a)(1), (b)(1), Dec. 8, 1994, 108 Stat. 5048–5050; Pub. L. 109–280, title IV, § 409(a), title V, § 506(a), Aug. 17, 2006, 120 Stat. 933, 946; Pub. L. 110–458, title I, §§ 104(d), 105(e)(1), Dec. 23, 2008, 122 Stat. 5104, 5105.)
§ 1341a. Termination of multiemployer plans
(a) Determinative factorsTermination of a multiemployer plan under this section occurs as a result of—
(1) the adoption after September 26, 1980, of a plan amendment which provides that participants will receive no credit for any purpose under the plan for service with any employer after the date specified by such amendment;
(2) the withdrawal of every employer from the plan, within the meaning of section 1383 of this title, or the cessation of the obligation of all employers to contribute under the plan; or
(3) the adoption of an amendment to the plan which causes the plan to become a plan described in section 1321(b)(1) of this title.
(b) Date of termination
(1) The date on which a plan terminates under paragraph (1) or (3) of subsection (a) is the later of—
(A) the date on which the amendment is adopted, or
(B) the date on which the amendment takes effect.
(2) The date on which a plan terminates under paragraph (2) of subsection (a) is the earlier of—
(A) the date on which the last employer withdraws, or
(B) the first day of the first plan year for which no employer contributions were required under the plan.
(c) Duties of plan sponsor of amended planExcept as provided in subsection (f)(1), the plan sponsor of a plan which terminates under paragraph (2) of subsection (a) shall—
(1) limit the payment of benefits to benefits which are nonforfeitable under the plan as of the date of the termination, and
(2) pay benefits attributable to employer contributions, other than death benefits, only in the form of an annuity, unless the plan assets are distributed in full satisfaction of all nonforfeitable benefits under the plan.
(d) Duties of plan sponsor of nonoperative plan
(e) Amount of contribution of employer under amended plan for each plan year subsequent to plan termination date
(f) Payment of benefits; reporting requirements for terminated plans and rules and standards for administration of such plans
(1) The plan sponsor of a terminated plan may authorize the payment other than in the form of an annuity of a participant’s entire nonforfeitable benefit attributable to employer contributions, other than a death benefit, if the value of the entire nonforfeitable benefit does not exceed $1,750. The corporation may authorize the payment of benefits under the terms of a terminated plan other than nonforfeitable benefits, or the payment other than in the form of an annuity of benefits having a value greater than $1,750, if the corporation determines that such payment is not adverse to the interest of the plan’s participants and beneficiaries generally and does not unreasonably increase the corporation’s risk of loss with respect to the plan.
(2) The corporation may prescribe reporting requirements for terminated plans, and rules and standards for the administration of such plans, which the corporation considers appropriate to protect the interests of plan participants and beneficiaries or to prevent unreasonable loss to the corporation.
(Pub. L. 93–406, title IV, § 4041A, as added Pub. L. 96–364, title I, § 103, Sept. 26, 1980, 94 Stat. 1216.)
§ 1342. Institution of termination proceedings by the corporation
(a) Authority to institute proceedings to terminate a planThe corporation may institute proceedings under this section to terminate a plan whenever it determines that—
(1) the plan has not met the minimum funding standard required under section 412 of title 26, or has been notified by the Secretary of the Treasury that a notice of deficiency under section 6212 of title 26 has been mailed with respect to the tax imposed under section 4971(a) of title 26,
(2) the plan will be unable to pay benefits when due,
(3) the reportable event described in section 1343(c)(7) of this title has occurred, or
the possible long-run loss of the corporation with respect to the plan may reasonably be expected to increase unreasonably if the plan is not terminated.
The corporation shall as soon as practicable institute proceedings under this section to terminate a single-employer plan whenever the corporation determines that the plan does not have assets available to pay benefits which are currently due under the terms of the plan. The corporation may prescribe a simplified procedure to follow in terminating small plans as long as that procedure includes substantial safeguards for the rights of the participants and beneficiaries under the plans, and for the employers who maintain such plans (including the requirement for a court decree under subsection (c)). Notwithstanding any other provision of this subchapter, the corporation is authorized to pool assets of terminated plans for purposes of administration, investment, payment of liabilities of all such terminated plans, and such other purposes as it determines to be appropriate in the administration of this subchapter.
(b) Appointment of trustee
(1) Whenever the corporation makes a determination under subsection (a) with respect to a plan or is required under subsection (a) to institute proceedings under this section, it may, upon notice to the plan, apply to the appropriate United States district court for the appointment of a trustee to administer the plan with respect to which the determination is made pending the issuance of a decree under subsection (c) ordering the termination of the plan. If within 3 business days after the filing of an application under this subsection, or such other period as the court may order, the administrator of the plan consents to the appointment of a trustee, or fails to show why a trustee should not be appointed, the court may grant the application and appoint a trustee to administer the plan in accordance with its terms until the corporation determines that the plan should be terminated or that termination is unnecessary. The corporation may request that it be appointed as trustee of a plan in any case.
(2) Notwithstanding any other provision of this subchapter—
(A) upon the petition of a plan administrator or the corporation, the appropriate United States district court may appoint a trustee in accordance with the provisions of this section if the interests of the plan participants would be better served by the appointment of the trustee, and
(B) upon the petition of the corporation, the appropriate United States district court shall appoint a trustee proposed by the corporation for a multiemployer plan which is in reorganization or to which section 1341a(d) of this title applies, unless such appointment would be adverse to the interests of the plan participants and beneficiaries in the aggregate.
(3) The corporation and plan administrator may agree to the appointment of a trustee without proceeding in accordance with the requirements of paragraphs (1) and (2).
(c) Adjudication that plan must be terminated
(1) If the corporation is required under subsection (a) of this section to commence proceedings under this section with respect to a plan or, after issuing a notice under this section to a plan administrator, has determined that the plan should be terminated, it may, upon notice to the plan administrator, apply to the appropriate United States district court for a decree adjudicating that the plan must be terminated in order to protect the interests of the participants or to avoid any unreasonable deterioration of the financial condition of the plan or any unreasonable increase in the liability of the fund. If the trustee appointed under subsection (b) disagrees with the determination of the corporation under the preceding sentence he may intervene in the proceeding relating to the application for the decree, or make application for such decree himself. Upon granting a decree for which the corporation or trustee has applied under this subsection the court shall authorize the trustee appointed under subsection (b) (or appoint a trustee if one has not been appointed under such subsection and authorize him) to terminate the plan in accordance with the provisions of this subtitle. If the corporation and the plan administrator agree that a plan should be terminated and agree to the appointment of a trustee without proceeding in accordance with the requirements of this subsection (other than this sentence) the trustee shall have the power described in subsection (d)(1) and, in addition to any other duties imposed on the trustee under law or by agreement between the corporation and the plan administrator, the trustee is subject to the duties described in subsection (d)(3). Whenever a trustee appointed under this subchapter is operating a plan with discretion as to the date upon which final distribution of the assets is to be commenced, the trustee shall notify the corporation at least 10 days before the date on which he proposes to commence such distribution.
(2) In the case of a proceeding initiated under this section, the plan administrator shall provide the corporation, upon the request of the corporation, the information described in clauses (ii), (iii), and (iv) of section 1341(c)(2)(A) of this title.
(3)Disclosure of termination information.—
(A)In general.—
(i)Information from plan sponsor or administrator.—A plan sponsor or plan administrator of a single-employer plan that has received a notice from the corporation of a determination that the plan should be terminated under this section shall provide to an affected party any information provided to the corporation in connection with the plan termination.
(ii)Information from corporation.—The corporation shall provide a copy of the administrative record, including the trusteeship decision record of a termination of a plan described under clause (i).
(B)Timing of disclosure.—The plan sponsor, plan administrator, or the corporation, as applicable, shall provide the information described in subparagraph (A) not later than 15 days after—
(i) receipt of a request from an affected party for such information; or
(ii) in the case of information described under subparagraph (A)(i), the provision of any new information to the corporation relating to a previous request by an affected party.
(C)Confidentiality.—
(i)In general.—The plan administrator, the plan sponsor, or the corporation shall not provide information under subparagraph (A) in a form which includes any information that may directly or indirectly be associated with, or otherwise identify, an individual participant or beneficiary.
(ii)Limitation.—A court may limit disclosure under this paragraph of confidential information described in section 552(b) of title 5 to authorized representatives (within the meaning of section 1341(c)(2)(D)(iv) of this title) of the participants or beneficiaries that agree to ensure the confidentiality of such information.
(D)Form and manner of information; charges.—
(i)Form and manner.—The corporation may prescribe the form and manner of the provision of information under this paragraph, which shall include delivery in written, electronic, or other appropriate form to the extent that such form is reasonably accessible to individuals to whom the information is required to be provided.
(ii)Reasonable charges.—A plan sponsor may charge a reasonable fee for any information provided under this paragraph in other than electronic form.
(d) Powers of trustee
(1)
(A) A trustee appointed under subsection (b) shall have the power—
(i) to do any act authorized by the plan or this subchapter to be done by the plan administrator or any trustee of the plan;
(ii) to require the transfer of all (or any part) of the assets and records of the plan to himself as trustee;
(iii) to invest any assets of the plan which he holds in accordance with the provisions of the plan, regulations of the corporation, and applicable rules of law;
(iv) to limit payment of benefits under the plan to basic benefits or to continue payment of some or all of the benefits which were being paid prior to his appointment;
(v) in the case of a multiemployer plan, to reduce benefits or suspend benefit payments under the plan, give appropriate notices, amend the plan, and perform other acts required or authorized by subtitle (E) 1
1 So in original. Probably should be “subtitle E”.
to be performed by the plan sponsor or administrator;(vi) to do such other acts as he deems necessary to continue operation of the plan without increasing the potential liability of the corporation, if such acts may be done under the provisions of the plan; and
(vii) to require the plan sponsor, the plan administrator, any contributing or withdrawn employer, and any employee organization representing plan participants to furnish any information with respect to the plan which the trustee may reasonably need in order to administer the plan.
If the court to which application is made under subsection (c) dismisses the application with prejudice, or if the corporation fails to apply for a decree under subsection (c), within 30 days after the date on which the trustee is appointed under subsection (b), the trustee shall transfer all assets and records of the plan held by him to the plan administrator within 3 business days after such dismissal or the expiration of such 30-day period, and shall not be liable to the plan or any other person for his acts as trustee except for willful misconduct, or for conduct in violation of the provisions of part 4 of subtitle B of subchapter I of this chapter (except as provided in subsection (d)(1)(A)(v)).2
2 See References in Text note below.
The 30-day period referred to in this subparagraph may be extended as provided by agreement between the plan administrator and the corporation or by court order obtained by the corporation.(B) If the court to which an application is made under subsection (c) issues the decree requested in such application, in addition to the powers described in subparagraph (A), the trustee shall have the power—
(i) to pay benefits under the plan in accordance with the requirements of this subchapter;
(ii) to collect for the plan any amounts due the plan, including but not limited to the power to collect from the persons obligated to meet the requirements of section 1082 of this title or the terms of the plan;
(iii) to receive any payment made by the corporation to the plan under this subchapter;
(iv) to commence, prosecute, or defend on behalf of the plan any suit or proceeding involving the plan;
(v) to issue, publish, or file such notices, statements, and reports as may be required by the corporation or any order of the court;
(vi) to liquidate the plan assets;
(vii) to recover payments under section 1345(a) of this title; and
(viii) to do such other acts as may be necessary to comply with this subchapter or any order of the court and to protect the interests of plan participants and beneficiaries.
(2) As soon as practicable after his appointment, the trustee shall give notice to interested parties of the institution of proceedings under this subchapter to determine whether the plan should be terminated or to terminate the plan, whichever is applicable. For purposes of this paragraph, the term “interested party” means—
(A) the plan administrator,
(B) each participant in the plan and each beneficiary of a deceased participant,
(C) each employer who may be subject to liability under section 1362, 1363, or 1364 of this title,
(D) each employer who is or may be liable to the plan under section 3
3 So in original.
part 1 of subtitle E,(E) each employer who has an obligation to contribute, within the meaning of section 1392(a) of this title, under a multiemployer plan, and
(F) each employee organization which, for purposes of collective bargaining, represents plan participants employed by an employer described in subparagraph (C), (D), or (E).
(3) Except to the extent inconsistent with the provisions of this chapter, or as may be otherwise ordered by the court, a trustee appointed under this section shall be subject to the same duties as those of a trustee under section 704 of title 11, and shall be, with respect to the plan, a fiduciary within the meaning of paragraph (21) of section 1002 of this title and under section 4975(e) of title 26 (except to the extent that the provisions of this subchapter are inconsistent with the requirements applicable under part 4 of subtitle B of subchapter I of this chapter and of such section 4975).
(e) Filing of application notwithstanding pendency of other proceedings
(f) Exclusive jurisdiction; stay of other proceedings
(g) Venue
(h) Compensation of trustee and professional service personnel appointed or retained by trustee
(1) The amount of compensation paid to each trustee appointed under the provisions of this subchapter shall require the prior approval of the corporation, and, in the case of a trustee appointed by a court, the consent of that court.
(2) Trustees shall appoint, retain, and compensate accountants, actuaries, and other professional service personnel in accordance with regulations prescribed by the corporation.
(Pub. L. 93–406, title IV, § 4042, Sept. 2, 1974, 88 Stat. 1021; Pub. L. 95–598, title III, § 321(a), Nov. 6, 1978, 92 Stat. 2678; Pub. L. 96–364, title IV, § 402(a)(6), Sept. 26, 1980, 94 Stat. 1298; Pub. L. 99–272, title XI, §§ 11010, 11016(c)(10), (11), Apr. 7, 1986, 100 Stat. 253, 274; Pub. L. 100–203, title IX, §§ 9312(c)(3), 9314(b), 9314(b), Dec. 22, 1987, 101 Stat. 1330–363, 1330–366, 1330–367; Pub. L. 101–239, title VII, §§ 7881(g)(7), 7891(a)(1), 7893(e), Dec. 19, 1989, 103 Stat. 2441, 2445, 2447; Pub. L. 103–465, title VII, § 771(e)(2), Dec. 8, 1994, 108 Stat. 5043; Pub. L. 109–280, title V, § 506(b), Aug. 17, 2006, 120 Stat. 947; Pub. L. 110–458, title I, § 105(e)(2), Dec. 23, 2008, 122 Stat. 5105.)
§ 1343. Reportable events
(a) Notification that event has occurred
(b) Notification that event is about to occur
(1) The requirements of this subsection shall be applicable to a contributing sponsor if, as of the close of the preceding plan year—
(A) the aggregate unfunded vested benefits (as determined under section 1306(a)(3)(E)(iii) of this title) of plans subject to this subchapter which are maintained by such sponsor and members of such sponsor’s controlled groups (disregarding plans with no unfunded vested benefits) exceed $50,000,000, and
(B) the funded vested benefit percentage for such plans is less than 90 percent.
For purposes of subparagraph (B), the funded vested benefit percentage means the percentage which the aggregate value of the assets of such plans bears to the aggregate vested benefits of such plans (determined in accordance with section 1306(a)(3)(E)(iii) of this title).
(2) This subsection shall not apply to an event if the contributing sponsor, or the member of the contributing sponsor’s controlled group to which the event relates, is—
(A) a person subject to the reporting requirements of section 13 or 15(d) of the Securities Exchange Act of 1934 [15 U.S.C. 78m, 78o(d)], or
(B) a subsidiary (as defined for purposes of such Act [15 U.S.C. 78a et seq.]) of a person subject to such reporting requirements.
(3) No later than 30 days prior to the effective date of an event described in paragraph (9), (10), (11), (12), or (13) of subsection (c), a contributing sponsor to which the requirements of this subsection apply shall notify the corporation that the event is about to occur.
(4) The corporation may waive the requirement of this subsection with respect to any or all reportable events with respect to any contributing sponsor.
(c) Enumeration of reportable eventsFor purposes of this section a reportable event occurs—
(1) when the Secretary of the Treasury issues notice that a plan has ceased to be a plan described in section 1321(a)(2) of this title, or when the Secretary of Labor determines the plan is not in compliance with subchapter I of this chapter;
(2) when an amendment of the plan is adopted if, under the amendment, the benefit payable with respect to any participant may be decreased;
(3) when the number of active participants is less than 80 percent of the number of such participants at the beginning of the plan year, or is less than 75 percent of the number of such participants at the beginning of the previous plan year;
(4) when the Secretary of the Treasury determines that there has been a termination or partial termination of the plan within the meaning of section 411(d)(3) of title 26, but the occurrence of such a termination or partial termination does not, by itself, constitute or require a termination of a plan under this subchapter;
(5) when the plan fails to meet the minimum funding standards under section 412 of title 26 (without regard to whether the plan is a plan described in section 1321(a)(2) of this title) or under section 1082 of this title;
(6) when the plan is unable to pay benefits thereunder when due;
(7) when there is a distribution under the plan to a participant who is a substantial owner as defined in section 1321(d) of this title if—
(A) such distribution has a value of $10,000 or more;
(B) such distribution is not made by reason of the death of the participant; and
(C) immediately after the distribution, the plan has nonforfeitable benefits which are not funded;
(8) when a plan merges, consolidates, or transfers its assets under section 1058 of this title, or when an alternative method of compliance is prescribed by the Secretary of Labor under section 1030 of this title;
(9) when, as a result of an event, a person ceases to be a member of the controlled group;
(10) when a contributing sponsor or a member of a contributing sponsor’s controlled group liquidates in a case under title 11, or under any similar Federal law or law of a State or political subdivision of a State;
(11) when a contributing sponsor or a member of a contributing sponsor’s controlled group declares an extraordinary dividend (as defined in section 1059(c) of title 26) or redeems, in any 12-month period, an aggregate of 10 percent or more of the total combined voting power of all classes of stock entitled to vote, or an aggregate of 10 percent or more of the total value of shares of all classes of stock, of a contributing sponsor and all members of its controlled group;
(12) when, in any 12-month period, an aggregate of 3 percent or more of the benefit liabilities of a plan covered by this subchapter and maintained by a contributing sponsor or a member of its controlled group are transferred to a person that is not a member of the controlled group or to a plan or plans maintained by a person or persons that are not such a contributing sponsor or a member of its controlled group; or
(13) when any other event occurs that may be indicative of a need to terminate the plan and that is prescribed by the corporation in regulations.
For purposes of paragraph (7), all distributions to a participant within any 24-month period are treated as a single distribution.
(d) Notification to corporation by Secretary of the TreasuryThe Secretary of the Treasury shall notify the corporation—
(1) whenever a reportable event described in paragraph (1), (4), or (5) of subsection (c) occurs, or
(2) whenever any other event occurs which the Secretary of the Treasury believes indicates that the plan may not be sound.
(e) Notification to corporation by Secretary of LaborThe Secretary of Labor shall notify the corporation—
(1) whenever a reportable event described in paragraph (1), (5), or (8) of subsection (c) occurs, or
(2) whenever any other event occurs which the Secretary of Labor believes indicates that the plan may not be sound.
(f) Disclosure exemption
(Pub. L. 93–406, title IV, § 4043, Sept. 2, 1974, 88 Stat. 1024; Pub. L. 101–239, title VII, § 7891(a)(1), Dec. 19, 1989, 103 Stat. 2445; Pub. L. 103–465, title VII, § 771(a)–(e)(1), Dec. 8, 1994, 108 Stat. 5042, 5043; Pub. L. 109–280, title IV, § 407(c)(2), Aug. 17, 2006, 120 Stat. 930.)
§ 1344. Allocation of assets
(a) Order of priority of participants and beneficiariesIn the case of the termination of a single-employer plan, the plan administrator shall allocate the assets of the plan (available to provide benefits) among the participants and beneficiaries of the plan in the following order:
(1) First, to that portion of each individual’s accrued benefit which is derived from the participant’s contributions to the plan which were not mandatory contributions.
(2) Second, to that portion of each individual’s accrued benefit which is derived from the participant’s mandatory contributions.
(3) Third, in the case of benefits payable as an annuity—
(A) in the case of the benefit of a participant or beneficiary which was in pay status as of the beginning of the 3-year period ending on the termination date of the plan, to each such benefit, based on the provisions of the plan (as in effect during the 5-year period ending on such date) under which such benefit would be the least,
(B) in the case of a participant’s or beneficiary’s benefit (other than a benefit described in subparagraph (A)) which would have been in pay status as of the beginning of such 3-year period if the participant had retired prior to the beginning of the 3-year period and if his benefits had commenced (in the normal form of annuity under the plan) as of the beginning of such period, to each such benefit based on the provisions of the plan (as in effect during the 5-year period ending on such date) under which such benefit would be the least.
For purposes of subparagraph (A), the lowest benefit in pay status during a 3-year period shall be considered the benefit in pay status for such period.
(4) Fourth—
(A) to all other benefits (if any) of individuals under the plan guaranteed under this subchapter (determined without regard to section 1322b(a) of this title), and
(B) to the additional benefits (if any) which would be determined under subparagraph (A) if section 1322(b)(5)(B) of this title did not apply.
For purposes of this paragraph, section 1321 of this title shall be applied without regard to subsection (c) thereof.
(5) Fifth, to all other nonforfeitable benefits under the plan.
(6) Sixth, to all other benefits under the plan.
(b) Adjustment of allocations; reallocations; mandatory contributions; establishment of subclasses and categoriesFor purposes of subsection (a)—
(1) The amount allocated under any paragraph of subsection (a) with respect to any benefit shall be properly adjusted for any allocation of assets with respect to that benefit under a prior paragraph of subsection (a).
(2) If the assets available for allocation under any paragraph of subsection (a) (other than paragraphs (4), (5), and (6)) are insufficient to satisfy in full the benefits of all individuals which are described in that paragraph, the assets shall be allocated pro rata among such individuals on the basis of the present value (as of the termination date) of their respective benefits described in that paragraph.
(3) If assets available for allocation under paragraph (4) of subsection (a) are insufficient to satisfy in full the benefits of all individuals who are described in that paragraph, the assets shall be allocated first to benefits described in subparagraph (A) of that paragraph. Any remaining assets shall then be allocated to benefits described in subparagraph (B) of that paragraph. If assets allocated to such subparagraph (B) are insufficient to satisfy in full the benefits described in that subparagraph, the assets shall be allocated pro rata among individuals on the basis of the present value (as of the termination date) of their respective benefits described in that subparagraph.
(4) This paragraph applies if the assets available for allocation under paragraph (5) of subsection (a) are not sufficient to satisfy in full the benefits of individuals described in that paragraph.
(A) If this paragraph applies, except as provided in subparagraph (B), the assets shall be allocated to the benefits of individuals described in such paragraph (5) on the basis of the benefits of individuals which would have been described in such paragraph (5) under the plan as in effect at the beginning of the 5-year period ending on the date of plan termination.
(B) If the assets available for allocation under subparagraph (A) are sufficient to satisfy in full the benefits described in such subparagraph (without regard to this subparagraph), then for purposes of subparagraph (A), benefits of individuals described in such subparagraph shall be determined on the basis of the plan as amended by the most recent plan amendment effective during such 5-year period under which the assets available for allocation are sufficient to satisfy in full the benefits of individuals described in subparagraph (A) and any assets remaining to be allocated under such subparagraph shall be allocated under subparagraph (A) on the basis of the plan as amended by the next succeeding plan amendment effective during such period.
(5) If the Secretary of the Treasury determines that the allocation made pursuant to this section (without regard to this paragraph) results in discrimination prohibited by section 401(a)(4) of title 26 then, if required to prevent the disqualification of the plan (or any trust under the plan) under section 401(a) or 403(a) of title 26, the assets allocated under subsections (a)(4)(B), (a)(5), and (a)(6) shall be reallocated to the extent necessary to avoid such discrimination.
(6) The term “mandatory contributions” means amounts contributed to the plan by a participant which are required as a condition of employment, as a condition of participation in such plan, or as a condition of obtaining benefits under the plan attributable to employer contributions. For this purpose, the total amount of mandatory contributions of a participant is the amount of such contributions reduced (but not below zero) by the sum of the amounts paid or distributed to him under the plan before its termination.
(7) A plan may establish subclasses and categories within the classes described in paragraphs (1) through (6) of subsection (a) in accordance with regulations prescribed by the corporation.
(c) Increase or decrease in value of assets
(d) Distribution of residual assets; restrictions on reversions pursuant to recently amended plans; assets attributable to employee contributions; calculation of remaining assets
(1) Subject to paragraph (3), any residual assets of a single-employer plan may be distributed to the employer if—
(A) all liabilities of the plan to participants and their beneficiaries have been satisfied,
(B) the distribution does not contravene any provision of law, and
(C) the plan provides for such a distribution in these circumstances.
(2)
(A) In determining the extent to which a plan provides for the distribution of plan assets to the employer for purposes of paragraph (1)(C), any such provision, and any amendment increasing the amount which may be distributed to the employer, shall not be treated as effective before the end of the fifth calendar year following the date of the adoption of such provision or amendment.
(B) A distribution to the employer from a plan shall not be treated as failing to satisfy the requirements of this paragraph if the plan has been in effect for fewer than 5 years and the plan has provided for such a distribution since the effective date of the plan.
(C) Except as otherwise provided in regulations of the Secretary of the Treasury, in any case in which a transaction described in section 1058 of this title occurs, subparagraph (A) shall continue to apply separately with respect to the amount of any assets transferred in such transaction.
(D) For purposes of this subsection, the term “employer” includes any member of the controlled group of which the employer is a member. For purposes of the preceding sentence, the term “controlled group” means any group treated as a single employer under subsection (b), (c), (m) or (o) of section 414 of title 26.
(3)
(A) Before any distribution from a plan pursuant to paragraph (1), if any assets of the plan attributable to employee contributions remain after satisfaction of all liabilities described in subsection (a), such remaining assets shall be equitably distributed to the participants who made such contributions or their beneficiaries (including alternate payees, within the meaning of section 1056(d)(3)(K) of this title).
(B) For purposes of subparagraph (A), the portion of the remaining assets which are attributable to employee contributions shall be an amount equal to the product derived by multiplying—
(i) the market value of the total remaining assets, by
(ii) a fraction—(I) the numerator of which is the present value of all portions of the accrued benefits with respect to participants which are derived from participants’ mandatory contributions (referred to in subsection (a)(2)), and(II) the denominator of which is the present value of all benefits with respect to which assets are allocated under paragraphs (2) through (6) of subsection (a).
(C) For purposes of this paragraph, each person who is, as of the termination date—
(i) a participant under the plan, or
(ii) an individual who has received, during the 3-year period ending with the termination date, a distribution from the plan of such individual’s entire nonforfeitable benefit in the form of a single sum distribution in accordance with section 1053(e) of this title or in the form of irrevocable commitments purchased by the plan from an insurer to provide such nonforfeitable benefit,
shall be treated as a participant with respect to the termination, if all or part of the nonforfeitable benefit with respect to such person is or was attributable to participants’ mandatory contributions (referred to in subsection (a)(2)).
(4) Nothing in this subsection shall be construed to limit the requirements of section 4980(d) of title 26 (as in effect immediately after the enactment of the Omnibus Budget Reconciliation Act of 1990) or section 1104(d) of this title with respect to any distribution of residual assets of a single-employer plan to the employer.
(e) Bankruptcy filing substituted for termination date
(f) Valuation of section 1362(c) liability for determining amounts payable by corporation to participants and beneficiaries
(1) In generalIn the case of a terminated plan, the value of the recovery of liability under section 1362(c) of this title allocable as a plan asset under this section for purposes of determining the amount of benefits payable by the corporation shall be determined by multiplying—
(A) the amount of liability under section 1362(c) of this title as of the termination date of the plan, by
(B) the applicable section 1362(c) recovery ratio.
(2) Section 1362(c) recovery ratioFor purposes of this subsection—
(A) In generalExcept as provided in subparagraph (C), the term “section 1362(c) recovery ratio” means the ratio which—
(i) the sum of the values of all recoveries under section 1362(c) of this title determined by the corporation in connection with plan terminations described under subparagraph (B), bears to
(ii) the sum of all the amounts of liability under section 1362(c) of this title with respect to such plans as of the termination date in connection with any such prior termination.
(B) Prior terminationsA plan termination described in this subparagraph is a termination with respect to which—
(i) the value of recoveries under section 1362(c) of this title have been determined by the corporation, and
(ii) notices of intent to terminate were provided (or in the case of a termination by the corporation, a notice of determination under section 1342 of this title was issued) during the 5-Federal fiscal year period ending with the third fiscal year preceding the fiscal year in which occurs the date of the notice of intent to terminate (or the notice of determination under section 1342 of this title) with respect to the plan termination for which the recovery ratio is being determined.
(C) ExceptionIn the case of a terminated plan with respect to which the outstanding amount of benefit liabilities exceeds $20,000,000, the term “section 1362(c) recovery ratio” means, with respect to the termination of such plan, the ratio of—
(i) the value of the recoveries on behalf of the plan under section 1362(c) of this title, to
(ii) the amount of the liability owed under section 1362(c) of this title as of the date of plan termination to the trustee appointed under section 1342(b) or (c) of this title.
(3) Subsection not to applyThis subsection shall not apply with respect to the determination of—
(A) whether the amount of outstanding benefit liabilities exceeds $20,000,000, or
(B) the amount of any liability under section 1362 of this title to the corporation or the trustee appointed under section 1342(b) or (c) of this title.
(4) Determinations
(Pub. L. 93–406, title IV, § 4044, Sept. 2, 1974, 88 Stat. 1025; Pub. L. 96–364, title IV, § 402(a)(7), Sept. 26, 1980, 94 Stat. 1299; Pub. L. 99–272, title XI, § 11016(c)(12), (13), Apr. 7, 1986, 100 Stat. 274; Pub. L. 100–203, title IX, § 9311(a)(1), (b), (c), Dec. 22, 1987, 101 Stat. 1330–359, 1330–360; Pub. L. 101–239, title VII, §§ 7881(e)(3), 7891(a)(1), 7894(g)(2), Dec. 19, 1989, 103 Stat. 2440, 2445, 2451; Pub. L. 101–508, title XII, § 12002(b)(2)(B), Nov. 5, 1990, 104 Stat. 1388–566; Pub. L. 109–280, title IV, §§ 404(b), 407(b), 408(b)(2), Aug. 17, 2006, 120 Stat. 928, 930, 931; Pub. L. 110–458, title I, § 104(c), Dec. 23, 2008, 122 Stat. 5104.)
§ 1345. Recapture of payments
(a) Authorization to recover benefits
(b) Recoverable amountFor purposes of subsection (a) the recoverable amount is the excess of the amount determined under paragraph (1) over the amount determined under paragraph (2).
(1) The amount determined under this paragraph is the sum of the amount of the actual payments received by the participant within the 3-year period.
(2) The amount determined under this paragraph is the sum of—
(A) the sum of the amount such participant would have received during each consecutive 12-month period within the 3 years if the participant received the benefit in the form described in paragraph (3),
(B) the sum for each of the consecutive 12-month periods of the lesser of—
(i) the excess, if any, of $10,000 over the benefit in the form described in paragraph (3), or
(ii) the excess of the actual payment, if any, over the benefit in the form described in paragraph (3), and
(C) the present value at the time of termination of the participant’s future benefits guaranteed under this subchapter as if the benefits commenced in the form described in paragraph (3).
(3) The form of benefit for purposes of this subsection shall be the monthly benefit the participant would have received during the consecutive 12-month period, if he had elected at the time of the first payment made during the 3-year period, to receive his interest in the plan as a monthly benefit in the form of a life annuity commencing at the time of such first payment.
(c) Payments made on or after death or disability of participant; waiver of recovery in case of hardship
(1) In the event of a distribution described in section 1343(b)(7) 1
1 See References in Text note below.
of this title the 3-year period referred to in subsection (b) shall not end sooner than the date on which the corporation is notified of the distribution.(2) The trustee shall not recover any payment made from a plan after or on account of the death of a participant, or to a participant who is disabled (within the meaning of section 72(m)(7) of title 26).
(3) The corporation is authorized to waive, in whole or in part, the recovery of any amount which the trustee is authorized to recover for the benefit of a plan under this section in any case in which it determines that substantial economic hardship would result to the participant or his beneficiaries from whom such amount is recoverable.
(Pub. L. 93–406, title IV, § 4045, Sept. 2, 1974, 88 Stat. 1027; Pub. L. 101–239, title VII, § 7891(a)(1), Dec. 19, 1989, 103 Stat. 2445.)
§ 1346. Reports to trustee
The corporation and the plan administrator of any plan to be terminated under this subtitle shall furnish to the trustee such information as the corporation or the plan administrator has and, to the extent practicable, can obtain regarding—
(1) the amount of benefits payable with respect to each participant under a plan to be terminated,
(2) the amount of basic benefits guaranteed under section 1322 or 1322a of this title which are payable with respect to each participant in the plan,
(3) the present value, as of the time of termination, of the aggregate amount of basic benefits payable under section 1322 or 1322a of this title (determined without regard to section 1322b of this title),
(4) the fair market value of the assets of the plan at the time of termination,
(5) the computations under section 1344 of this title, and all actuarial assumptions under which the items described in paragraphs (1) through (4) were computed, and
(6) any other information with respect to the plan the trustee may require in order to terminate the plan.
(Pub. L. 93–406, title IV, § 4046, Sept. 2, 1974, 88 Stat. 1028; Pub. L. 96–364, title IV, § 403(e), Sept. 26, 1980, 94 Stat. 1301.)
§ 1347. Restoration of plans
Whenever the corporation determines that a plan which is to be terminated under section 1341 or 1342 of this title, or which is in the process of being terminated under section 1341 or 1342 of this title, should not be terminated under section 1341 or 1342 of this title as a result of such circumstances as the corporation determines to be relevant, the corporation is authorized to cease any activities undertaken to terminate the plan, and to take whatever action is necessary and within its power to restore the plan to its status prior to the determination that the plan was to be terminated under section 1341 or 1342 of this title. In the case of a plan which has been terminated under section 1341 or 1342 of this title the corporation is authorized in any such case in which the corporation determines such action to be appropriate and consistent with its duties under this subchapter, to take such action as may be necessary to restore the plan to its pretermination status, including, but not limited to, the transfer to the employer or a plan administrator of control of part or all of the remaining assets and liabilities of the plan.
(Pub. L. 93–406, title IV, § 4047, Sept. 2, 1974, 88 Stat. 1028; Pub. L. 99–272, title XI, § 11016(a)(3), Apr. 7, 1986, 100 Stat. 268; Pub. L. 101–239, title VII, § 7893(g)(1), Dec. 19, 1989, 103 Stat. 2447.)
§ 1348. Termination date
(a) For purposes of this subchapter the termination date of a single-employer plan is—
(1) in the case of a plan terminated in a standard termination in accordance with the provisions of section 1341(b) of this title, the termination date proposed in the notice provided under section 1341(a)(2) of this title,
(2) in the case of a plan terminated in a distress termination in accordance with the provisions of section 1341(c) of this title, the date established by the plan administrator and agreed to by the corporation,
(3) in the case of a plan terminated in accordance with the provisions of section 1342 of this title, the date established by the corporation and agreed to by the plan administrator, or
(4) in the case of a plan terminated under section 1341(c) or 1342 of this title in any case in which no agreement is reached between the plan administrator and the corporation (or the trustee), the date established by the court.
(b) For purposes of this subchapter, the date of termination of a multiemployer plan is—
(1) in the case of a plan terminated in accordance with the provisions of section 1341a of this title, the date determined under subsection (b) of that section; or
(2) in the case of a plan terminated in accordance with the provisions of section 1342 of this title, the date agreed to between the plan administrator and the corporation (or the trustee appointed under section 1342(b)(2) of this title, if any), or, if no agreement is reached, the date established by the court.
(Pub. L. 93–406, title IV, § 4048, Sept. 2, 1974, 88 Stat. 1028; Pub. L. 96–364, title IV, § 402(a)(8), Sept. 26, 1980, 94 Stat. 1299; Pub. L. 99–272, title XI, § 11016(a)(4), Apr. 7, 1986, 100 Stat. 268.)
§ 1349. Repealed. Pub. L. 100–203, title IX, § 9312(a), Dec. 22, 1987, 101 Stat. 1330–361
§ 1350. Missing participants
(a) General rule
(1) Payment to the corporationA plan administrator satisfies section 1341(b)(3)(A) of this title in the case of a missing participant only if the plan administrator—
(A) transfers the participant’s designated benefit to the corporation or purchases an irrevocable commitment from an insurer in accordance with clause (i) of section 1341(b)(3)(A) of this title, and
(B) provides the corporation such information and certifications with respect to such designated benefits or irrevocable commitments as the corporation shall specify.
(2) Treatment of transferred assets
(3) Payment by the corporationAfter a missing participant whose designated benefit was transferred to the corporation is located—
(A) in any case in which the plan could have distributed the benefit of the missing participant in a single sum without participant or spousal consent under section 1055(g) of this title, the corporation shall pay the participant or beneficiary a single sum benefit equal to the designated benefit paid the corporation plus interest as specified by the corporation, and
(B) in any other case, the corporation shall pay a benefit based on the designated benefit and the assumptions prescribed by the corporation at the time that the corporation received the designated benefit.
The corporation shall make payments under subparagraph (B) available in the same forms and at the same times as a guaranteed benefit under section 1322 of this title would be available to be paid, except that the corporation may make a benefit available in the form of a single sum if the plan provided a single sum benefit (other than a single sum described in subsection (b)(2)(A)).
(b) DefinitionsFor purposes of this section—
(1) Missing participant
(2) Designated benefitThe term “designated benefit” means the single sum benefit the participant would receive—
(A) under the plan’s assumptions, in the case of a distribution that can be made without participant or spousal consent under section 1055(g) of this title;
(B) under the assumptions of the corporation in effect on the date that the designated benefit is transferred to the corporation, in the case of a plan that does not pay any single sums other than those described in subparagraph (A); or
(C) under the assumptions of the corporation or of the plan, whichever provides the higher single sum, in the case of a plan that pays a single sum other than those described in subparagraph (A).
(c) Multiemployer plans
(d) Plans not otherwise subject to subchapter
(1) Transfer to corporation
(2) Information to the corporationTo the extent provided in regulations, the plan administrator of a plan described in paragraph (4) shall, upon termination of the plan, provide the corporation information with respect to benefits of a missing participant if the plan transfers such benefits—
(A) to the corporation, or
(B) to an entity other than the corporation or a plan described in paragraph (4)(B)(ii).
(3) Payment by the corporationIf benefits of a missing participant were transferred to the corporation under paragraph (1), the corporation shall, upon location of the participant or beneficiary, pay to the participant or beneficiary the amount transferred (or the appropriate survivor benefit) either—
(A) in a single sum (plus interest), or
(B) in such other form as is specified in regulations of the corporation.
(4) Plans describedA plan is described in this paragraph if—
(A) the plan is a pension plan (within the meaning of section 1002(2) of this title)—
(i) to which the provisions of this section do not apply (without regard to this subsection),
(ii) which is not a plan described in paragraph (2), (3), (4), (6), (7), (8), (9), (10), or (11) of section 1321(b) of this title, and
(iii) which,1
1 So in original. The comma probably should not appear.
was a plan described in section 401(a) of title 26 which includes a trust exempt from tax under section 501(a) of such title, and(B) at the time the assets are to be distributed upon termination, the plan—
(i) has missing participants, and
(ii) has not provided for the transfer of assets to pay the benefits of all missing participants to another pension plan (within the meaning of section 1002(2) of this title).
(5) Certain provisions not to apply
(e) Regulatory authority
(Pub. L. 93–406, title IV, § 4050, as added Pub. L. 103–465, title VII, § 776(a), Dec. 8, 1994, 108 Stat. 5047; amended Pub. L. 109–280, title IV, § 410(a), Aug. 17, 2006, 120 Stat. 934; Pub. L. 110–458, title I, § 104(e), Dec. 23, 2008, 122 Stat. 5104.)