Page 559 TITLE 29—LABOR § 1400

mined) under this paragraph without regard to

subparagraph (B), and

(ii) notwithstanding any other provision of

this part, the total unfunded vested benefits of

the plan shall be fully allocated among all

such employers in a manner not inconsistent

with regulations which shall be prescribed by

the corporation.

Withdrawal by an employer from a plan, during

a period of 3 consecutive plan years within

which substantially all the employers who have

an obligation to contribute under the plan withdraw, shall be presumed to be a withdrawal pursuant to an agreement or arrangement, unless

the employer proves otherwise by a preponderance of the evidence.

(E) In the case of a partial withdrawal described in section 1385(a) of this title, the

amount of each annual payment shall be the

product of—

(i) the amount determined under subparagraph (C) (determined without regard to this

subparagraph), multiplied by

(ii) the fraction determined under section

1386(a)(2) of this title.

(2) Withdrawal liability shall be payable in accordance with the schedule set forth by the plan

sponsor under subsection (b)(1) of this section

beginning no later than 60 days after the date of

the demand notwithstanding any request for review or appeal of determinations of the amount

of such liability or of the schedule.

(3) Each annual payment determined under

paragraph (1)(C) shall be payable in 4 equal installments due quarterly, or at other intervals

specified by plan rules. If a payment is not made

when due, interest on the payment shall accrue

from the due date until the date on which the

payment is made.

(4) The employer shall be entitled to prepay

the outstanding amount of the unpaid annual

withdrawal liability payments determined under

paragraph (1)(C), plus accrued interest, if any, in

whole or in part, without penalty. If the prepayment is made pursuant to a withdrawal which is

later determined to be part of a withdrawal described in paragraph (1)(D), the withdrawal liability of the employer shall not be limited to

the amount of the prepayment.

(5) In the event of a default, a plan sponsor

may require immediate payment of the outstanding amount of an employer’s withdrawal liability, plus accrued interest on the total outstanding liability from the due date of the first

payment which was not timely made. For purposes of this section, the term ‘‘default’’

means—

(A) the failure of an employer to make, when

due, any payment under this section, if the

failure is not cured within 60 days after the

employer receives written notification from

the plan sponsor of such failure, and

(B) any other event defined in rules adopted

by the plan which indicates a substantial likelihood that an employer will be unable to pay

its withdrawal liability.

(6) Except as provided in paragraph (1)(A)(ii),

interest under this subsection shall be charged

at rates based on prevailing market rates for

comparable obligations, in accordance with regulations prescribed by the corporation.

(7) A multiemployer plan may adopt rules for

other terms and conditions for the satisfaction

of an employer’s withdrawal liability if such

rules—

(A) are consistent with this chapter, and

(B) are not inconsistent with regulations of

the corporation.

(8) In the case of a terminated multiemployer

plan, an employer’s obligation to make payments under this section ceases at the end of the

plan year in which the assets of the plan (exclusive of withdrawal liability claims) are sufficient to meet all obligations of the plan, as determined by the corporation.

(d) Applicability of statutory prohibitions

The prohibitions provided in section 1106(a) of

this title do not apply to any action required or

permitted under this part.

(Pub. L. 93–406, title IV, §4219, as added Pub. L.

96–364, title I, §104(2), Sept. 26, 1980, 94 Stat. 1236;

amended Pub. L. 98–369, div. A, title V,

§558(b)(1)(B), July 18, 1984, 98 Stat. 899.)

REFERENCES IN TEXT

This chapter, referred to in subsec. (c)(7)(A), was in

the original ‘‘this Act’’, meaning Pub. L. 93–406, known

as the Employee Retirement Income Security Act of

1974. Titles I, III, and IV of such Act are classified principally to this chapter. For complete classification of

this Act to the Code, see Short Title note set out under

section 1001 of this title and Tables.

AMENDMENTS

1984—Subsec. (c)(1)(C)(iii). Pub. L. 98–369 substituted

‘‘September 26, 1980’’ for ‘‘April 29, 1980’’.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1381, 1386, 1391,

1396, 1401, 1403, 1415 of this title.

§ 1400. Approval of amendments

(a) Amendment of covered multiemployer plan;

procedures applicable

Except as provided in subsection (b) of this

section, if an amendment to a multiemployer

plan authorized by any preceding section of this

part is adopted more than 36 months after the

effective date of this section, the amendment

shall be effective only if the corporation approves the amendment, or, within 90 days after

the corporation receives notice and a copy of the

amendment from the plan sponsor, fails to disapprove the amendment.

(b) Amendment respecting methods for computing withdrawal liability

An amendment permitted by section 1391(c)(5)

of this title may be adopted only in accordance

with that section.

(c) Criteria for disapproval by corporation

The corporation shall disapprove an amendment referred to in subsection (a) or (b) of this

section only if the corporation determines that

the amendment creates an unreasonable risk of

loss to plan participants and beneficiaries or to

the corporation.

(Pub. L. 93–406, title IV, §4220, as added Pub. L.

96–364, title I, §104(2), Sept. 26, 1980, 94 Stat.

1239.)
§ 1401 TITLE 29—LABOR Page 560

REFERENCES IN TEXT

For the effective date of this section, referred to in

subsec. (a), see 1461(e)(2) of this title.

§ 1401. Resolution of disputes

(a) Arbitration proceedings; matters subject to

arbitration, procedures applicable, etc.

(1) Any dispute between an employer and the

plan sponsor of a multiemployer plan concerning a determination made under sections 1381

through 1399 of this title shall be resolved

through arbitration. Either party may initiate

the arbitration proceeding within a 60-day period after the earlier of—

(A) the date of notification to the employer

under section 1399(b)(2)(B) of this title, or

(B) 120 days after the date of the employer’s

request under section 1399(b)(2)(A) of this title.

The parties may jointly initiate arbitration

within the 180-day period after the date of the

plan sponsor’s demand under section 1399(b)(1) of

this title.

(2) An arbitration proceeding under this section shall be conducted in accordance with fair

and equitable procedures to be promulgated by

the corporation. The plan sponsor may purchase

insurance to cover potential liability of the arbitrator. If the parties have not provided for the

costs of the arbitration, including arbitrator’s

fees, by agreement, the arbitrator shall assess

such fees. The arbitrator may also award reasonable attorney’s fees.

(3)(A) For purposes of any proceeding under

this section, any determination made by a plan

sponsor under sections 1381 through 1399 of this

title and section 1405 of this title is presumed

correct unless the party contesting the determination shows by a preponderance of the evidence that the determination was unreasonable

or clearly erroneous.

(B) In the case of the determination of a plan’s

unfunded vested benefits for a plan year, the determination is presumed correct unless a party

contesting the determination shows by a preponderance of evidence that—

(i) the actuarial assumptions and methods

used in the determination were, in the aggregate, unreasonable (taking into account the

experience of the plan and reasonable expectations), or

(ii) the plan’s actuary made a significant

error in applying the actuarial assumptions or

methods.

(b) Alternative collection proceedings; civil action subsequent to arbitration award; conduct of arbitration proceedings

(1) If no arbitration proceeding has been initiated pursuant to subsection (a) of this section,

the amounts demanded by the plan sponsor

under section 1399(b)(1) of this title shall be due

and owing on the schedule set forth by the plan

sponsor. The plan sponsor may bring an action

in a State or Federal court of competent jurisdiction for collection.

(2) Upon completion of the arbitration proceedings in favor of one of the parties, any party

thereto may bring an action, no later than 30

days after the issuance of an arbitrator’s award,

in an appropriate United States district court in

accordance with section 1451 of this title to enforce, vacate, or modify the arbitrator’s award.

(3) Any arbitration proceedings under this section shall, to the extent consistent with this

subchapter, be conducted in the same manner,

subject to the same limitations, carried out

with the same powers (including subpena

power), and enforced in United States courts as

an arbitration proceeding carried out under title

9.

(c) Presumption respecting finding of fact by arbitrator

In any proceeding under subsection (b) of this

section, there shall be a presumption, rebuttable

only by a clear preponderance of the evidence,

that the findings of fact made by the arbitrator

were correct.

(d) Payments by employer prior and subsequent

to determination by arbitrator; adjustments;

failure of employer to make payments

Payments shall be made by an employer in accordance with the determinations made under

this part until the arbitrator issues a final decision with respect to the determination submitted for arbitration, with any necessary adjustments in subsequent payments for overpayments or underpayments arising out of the decision of the arbitrator with respect to the determination. If the employer fails to make timely

payment in accordance with such final decision,

the employer shall be treated as being delinquent in the making of a contribution required

under the plan (within the meaning of section

1145 of this title).

(e) Furnishing of information by plan sponsor to

employer respecting computation of withdrawal liability of employer; fees

If any employer requests in writing that the

plan sponsor make available to the employer

general information necessary for the employer

to compute its withdrawal liability with respect

to the plan (other than information which is

unique to that employer), the plan sponsor shall

furnish the information to the employer without

charge. If any employer requests in writing that

the plan sponsor make an estimate of such employer’s potential withdrawal liability with respect to the plan or to provide information

unique to that employer, the plan sponsor may

require the employer to pay the reasonable cost

of making such estimate or providing such information.

(Pub. L. 93–406, title IV, §4221, as added Pub. L.

96–364, title I, §104(2), Sept. 26, 1980, 94 Stat.

1239.)

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1451 of this title.

§ 1402. Reimbursements for uncollectible withdrawal liability

(a) Required supplemental program to reimburse

for payments due from employers uncollectible as a result of employer involvement in

bankruptcy case or proceedings; program

participation, premiums, etc.

By May 1, 1982, the corporation shall establish

by regulation a supplemental program to reim-