§ 1083 TITLE 29—LABOR Page 422

Section 763(b) of Pub. L. 103–465 provided that: ‘‘The

amendment made by this section [amending this section] shall apply to plan years beginning after December 31, 1994 with respect to collective bargaining agreements in effect on or after January 1, 1995.’’

Section 764(b) of Pub. L. 103–465 provided that: ‘‘The

amendment made by this section [amending this section] shall apply to plan years beginning after the date

of enactment of this Act [Dec. 8, 1994].

Amendment by section 768(b) of Pub. L. 103–465 effective for installments and other payments required

under section 412 of Title 26, Internal Revenue Code, or

under this part, that become due on or after Dec. 8,

1994, see section 768(c) of Pub. L. 103–465, set out as a

note under section 412 of Title 26.

EFFECTIVE DATE OF 1990 AMENDMENT

Amendment by Pub. L. 101–508 applicable to qualified

transfers under section 420 of title 26 made after Nov.

5, 1990, see section 12012(e) of Pub. L. 101–508, set out as

a note under section 1021 of this title.

EFFECTIVE DATE OF 1989 AMENDMENT

Amendment by section 7881(a)(1)(B), (2)(B), (3)(B),

(4)(B), (5)(B), (6)(B), (b)(1)(B), (2)(B), (3)(B), (4)(B),

(6)(B)(i), (d)(1)(B), (2), (4) of Pub. L. 101–239 effective, except as otherwise provided, as if included in the provision of the Pension Protection Act, Pub. L. 100–203,

§§9302–9346, to which such amendment relates, see section 7882 of Pub. L. 101–239, set out as a note under section 401 of Title 26, Internal Revenue Code.

Amendment by section 7891(a)(1) of Pub. L. 101–239 effective, except as otherwise provided, as if included in

the provision of the Tax Reform Act of 1986, Pub. L.

99–514, to which such amendment relates, see section

7891(f) of Pub. L. 101–239, set out as a note under section

1002 of this title.

Amendment by section 7892(b) of Pub. L. 101–239 effective as if included in the provision of the Pension Protection Act, Pub. L. 100–203, §§9302–9346, to which such

amendment relates, see section 7892(c) of Pub. L.

101–239, set out as a note under section 1052 of this title.

Amendment by section 7894(d)(2), (5) of Pub. L. 101–239

effective, except as otherwise provided, as if originally

included in the provision of the Employee Retirement

Income Security Act of 1974, Pub. L. 93–406, to which

such amendment relates, see section 7894(i) of Pub. L.

101–239, set out as a note under section 1002 of this title.

EFFECTIVE DATE OF 1988 AMENDMENT

Amendment by Pub. L. 100–647 effective as if included

in the amendments made by the provisions of the Omnibus Budget Reconciliation Act of 1987, Pub. L. 100–203,

to which it relates, see section 2005(e) of Pub. L. 100–647,

set out as a note under section 404 of Title 26, Internal

Revenue Code.

EFFECTIVE DATE OF 1987 AMENDMENT

Amendment by section 9301(b) of Pub. L. 100–203 applicable to years beginning after Dec. 31, 1987, see section 9301(c)(1) of Pub. L. 100–203, set out as a note under

section 412 of Title 26, Internal Revenue Code.

Amendment by section 9303(b) of Pub. L. 100–203 applicable with respect to plan years beginning after Dec.

31, 1988, see section 9303(e)(1) of Pub. L. 100–203, set out

as a note under section 412 of Title 26.

Amendment by section 9303(d)(2) of Pub. L. 100–203 applicable with respect to plan years beginning after Dec.

31, 1987, see section 9303(e)(2) of Pub. L. 100–203, set out

as a note under section 412 of Title 26.

Amendment by section 9304(a)(2) of Pub. L. 100–203 applicable to plan years beginning after Dec. 31, 1987, see

section 9304(a)(3) of Pub. L. 100–203, set out as a note

under section 412 of Title 26.

Amendment by section 9304(b)(2) of Pub. L. 100–203 applicable with respect to plan years beginning after 1988,

see section 9304(b)(3) of Pub. L. 100–203, set out as a note

under section 412 of Title 26.

Amendment by section 9304(e)(2) of Pub. L. 100–203 applicable to plan years beginning after Dec. 31, 1987, see

section 9304(e)(3) of Pub. L. 100–203, set out as a note

under section 412 of Title 26.

Amendment by section 9305(b)(2) of Pub. L. 100–203 applicable with respect to plan years beginning after Dec.

31, 1987, see section 9305(d) of Pub. L. 100–203, set out as

a note under section 412 of Title 26.

Amendment by section 9307(a)(2), (b)(2), (e)(2) of Pub.

L. 100–203 applicable to years beginning after Dec. 31,

1987, except that subsec. (b)(2)(B)(iv), (3)(B)(ii) of this

section (as amended by section 9307(a)(2)(A) of Pub. L.

100–203) is applicable to gains and losses established in

years beginning after Dec. 31, 1987, see section 9307(f) of

Pub. L. 100–203, as amended, set out as a note under section 404 of Title 26.

EFFECTIVE DATE OF 1980 AMENDMENT

Amendment by Pub. L. 96–364 effective Sept. 26, 1980,

except as specifically provided, see section 1461(e) of

this title.

REGULATIONS

Secretary authorized, effective Sept. 2, 1974, to promulgate regulations wherever provisions of this subchapter call for the promulgation of regulations, see

section 1031 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1021, 1023, 1053,

1054, 1055, 1056, 1060, 1083, 1084, 1085, 1085a, 1085b, 1301,

1303, 1306, 1310, 1311, 1342, 1343, 1362, 1371, 1423 of this

title; title 26 section 412.

§ 1083. Variance from minimum funding standard

(a) Waiver of requirements in event of business

hardship

If an employer, or in the case of a multi-employer plan, 10 percent or more of the number of

employers contributing to or under the plan are

unable to satisfy the minimum funding standard

for a plan year without temporary substantial

business hardship (substantial business hardship

in the case of a multiemployer plan) and if application of the standard would be adverse to

the interests of plan participants in the aggregate, the Secretary of the Treasury may waive

the requirements of section 1082(a) of this title

for such year with respect to all or any portion

of the minimum funding standard other than the

portion thereof determined under section

1082(b)(2)(C) of this title. The Secretary of the

Treasury shall not waive the minimum funding

standard with respect to a plan for more than 3

of any 15 (5 of any 15 in the case of a multiemployer plan) consecutive plan years. The interest rate used for purposes of computing the amortization charge described in subsection

(b)(2)(C) of this section for any plan year shall

be—

(1) in the case of a plan other than a multiemployer plan, the greater of (A) 150 percent

of the Federal mid-term rate (as in effect

under section 1274 of title 26 for the 1st month

of such plan year), or (B) the rate of interest

used under the plan in determining costs (including adjustments under section 1082(b)(5)(B)

of this title), and

(2) in the case of a multiemployer plan, the

rate determined under section 6621(b) of title

26.

(b) Matters considered in determining business

hardship

For purposes of this part, the factors taken

into account in determining temporary substan-
Page 423 TITLE 29—LABOR § 1083

tial business hardship (substantial business

hardship in the case of a multiemployer plan)

shall include (but shall not be limited to) whether—

(1) the employer is operating at an economic

loss,

(2) there is substantial unemployment or

underemployment in the trade or business and

in the industry concerned,

(3) the sales and profits of the industry concerned are depressed or declining, and

(4) it is reasonable to expect that the plan

will be continued only if the waiver is granted.

(c) ‘‘Waived funding deficiency’’ defined

For purposes of this part, the term ‘‘waived

funding deficiency’’ means the portion of the

minimum funding standard (determined without

regard to subsection (b)(3)(C) of section 1082 of

this title) for a plan year waived by the Secretary of the Treasury and not satisfied by employer contributions.

(d) Special rules

(1) Application must be submitted before date

2

1

⁄2 months after close of year

In the case of a plan other than a multiemployer plan, no waiver may be granted under

this section with respect to any plan for any

plan year unless an application therefor is

submitted to the Secretary of the Treasury

not later than the 15th day of the 3rd month

beginning after the close of such plan year.

(2) Special rule if employer is member of controlled group

(A) In general

In the case of a plan other than a multiemployer plan, if an employer is a member of a

controlled group, the temporary substantial

business hardship requirements of subsection (a) of this section shall be treated as

met only if such requirements are met—

(i) with respect to such employer, and

(ii) with respect to the controlled group

of which such employer is a member (determined by treating all members of such

group as a single employer).

The Secretary of the Treasury may provide

that an analysis of a trade or business or industry of a member need not be conducted if

the Secretary of the Treasury determines

such analysis is not necessary because the

taking into account of such member would

not significantly affect the determination

under this subsection.

(B) Controlled group

For purposes of subparagraph (A), 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.

(e) Notice of filing of application for waiver

(1) The Secretary of the Treasury shall, before

granting a waiver under this section, require

each applicant to provide evidence satisfactory

to such Secretary that the applicant has provided notice of the filing of the application for

such waiver to each employee organization representing employees covered by the affected

plan, and each affected party (as defined in section 1301(a)(21) of this title) other than the Pension Benefit Guaranty Corporation. Such notice

shall include a description of the extent to

which the plan is funded for benefits which are

guaranteed under subchapter III of this chapter

and for benefit liabilities.

(2) The Secretary of the Treasury shall consider any relevant information provided by a

person to whom notice was given under paragraph (1).

(f) Cross reference

For corresponding duties of the Secretary of the

Treasury with regard to implementation of the Internal Revenue Code of 1986, see section 412(d) of

title 26.

(Pub. L. 93–406, title I, §303, Sept. 2, 1974, 88 Stat.

872; Pub. L. 99–272, title XI, §§11015(b)(1)(A),

11016(c)(2), Apr. 7, 1986, 100 Stat. 267, 273; Pub. L.

100–203, title IX, §9306(a)(2), (b)(2), (c)(2)(A),

(d)(2), Dec. 22, 1987, 101 Stat. 1330–353 to 1330–355;

Pub. L. 101–239, title VII, §§7881(b)(6)(B)(ii), (7),

(8), (c)(2), 7891(a)(1), Dec. 19, 1989, 103 Stat. 2438,

2439, 2445.)

REFERENCES IN TEXT

The Internal Revenue Code of 1986, referred to in subsec. (f), is classified generally to Title 26, Internal Revenue Code.

AMENDMENTS

1989—Subsec. (a). Pub. L. 101–239, §7881(b)(7), redesignated pars. (A) and (B) as pars. (1) and (2), respectively,

realigned margins, redesignated cls. (i) and (ii) as subpars. (A) and (B), respectively, of par. (1), and made

technical correction to reference to section 6621(b) of

title 26 in par. (2) resulting in no change in text.

Subsec. (a)(1)(B). Pub. L. 101–239, §7881(b)(6)(B)(ii), inserted ‘‘(including adjustments under section

1082(b)(5)(B) of this title)’’ after ‘‘costs’’.

Subsec. (e)(1). Pub. L. 101–239, §7881(c)(2), substituted

‘‘for benefit liabilities’’ for ‘‘the benefit liabilities’’ in

last sentence.

Subsec. (f). Pub. L. 101–239, §7891(a)(1), substituted

‘‘Internal Revenue Code of 1986’’ for ‘‘Internal Revenue

Code of 1954’’.

Pub. L. 101–239, §7881(b)(8), transferred subsec. (f) to

follow immediately after subsec. (e).

1987—Subsec. (a). Pub. L. 100–203, §9306(a)(2)(B), substituted ‘‘temporary substantial business hardship

(substantial business hardship in the case of a multiemployer plan)’’ for ‘‘substantial business hardship’’.

Pub. L. 100–203, §9306(b)(2), substituted ‘‘more than 3

of any 15 (5 of any 15 in the case of a multiemployer

plan)’’ for ‘‘more than 5 of any 15’’.

Pub. L. 100–203, §9306(c)(2)(A), substituted ‘‘The interest rate used for purposes of computing the amortization charge described in subsection (b)(2)(C) of this section for any plan year shall be—’’ and pars. (A) and (B)

for ‘‘The interest rate used for purposes of computing

the amortization charge described in section

1082(b)(2)(C) of this title for a variance granted under

this subsection shall be the rate determined under section 6621(b) of title 26.’’

Subsec. (b). Pub. L. 100–203, §9306(a)(2)(B), substituted

‘‘temporary substantial business hardship (substantial

business hardship in the case of a multiemployer plan)’’

for ‘‘substantial business hardship’’.

Subsec. (d)(1). Pub. L. 100–203, §9306(a)(2)(A), added

subsec. (d)(1). Former subsec. (d) redesignated (f).

Subsec. (d)(2). Pub. L. 100–203, §9306(a)(2)(C), added

par. (2).

Subsec. (e)(1). Pub. L. 100–203, §9306(d)(2), substituted

‘‘plan, and each affected party (as defined in section

1301(a)(21) of this title) other than the Pension Benefit

Guaranty Corporation. Such notice shall include a description of the extent to which the plan is funded for
§ 1084 TITLE 29—LABOR Page 424

benefits which are guaranteed under subchapter III of

this chapter and the benefit liabilities.’’ for ‘‘plan.’’

Subsec. (f). Pub. L. 100–203, §9306(a)(2)(A), redesignated former subsec. (d) as (f).

1986—Pub. L. 99–272, §11015(b)(1)(A), inserted provision

that the interest rate used for purposes of computing

the amortization charge described in section

1082(b)(2)(C) of this title for a variance granted under

this subsection be the rate determined under section

6621(b) of title 26.

Subsec. (e). Pub. L. 99–272, §11016(c)(2), added subsec.

(e).

EFFECTIVE DATE OF 1989 AMENDMENT

Amendment by section 7881(b)(6)(B)(ii), (7), (8), (c)(2)

of Pub. L. 101–239 effective, except as otherwise provided, as if included in the provision of the Pension

Protection Act, Pub. L. 100–203, §§9302–9346, to which

such amendment relates, see section 7882 of Pub. L.

101–239, set out as a note under section 401 of Title 26,

Internal Revenue Code.

Amendment by section 7891(a)(1) of Pub. L. 101–239 effective, except as otherwise provided, as if included in

the provision of the Tax Reform Act of 1986, Pub. L.

99–514, to which such amendment relates, see section

7891(f) of Pub. L. 101–239, set out as a note under section

1002 of this title.

EFFECTIVE DATE OF 1987 AMENDMENT

Amendment by Pub. L. 100–203 applicable in the case

of any application submitted after Dec. 17, 1987, and

any waiver granted pursuant to such an application,

except that the amendment by section 9306(a)(2)(A) of

Pub. L. 100–203 applicable to plan years beginning after

Dec. 31, 1987, amendment by section 9306(b)(2) of Pub. L.

100–203 applicable to waivers for plan years beginning

after Dec. 31, 1987, and amendment by section 9306(d)(2)

of Pub. L. 100–203 applicable to applications submitted

more than 90 days after Dec. 22, 1987, with certain exceptions and transitional rules, see section 9306(f) of

Pub. L. 100–203, as amended, set out as a note under section 412 of Title 26, Internal Revenue Code.

EFFECTIVE DATE OF 1986 AMENDMENT

Amendment by Pub. L. 99–272 effective Jan. 1, 1986,

with certain exceptions, see section 11019 of Pub. L.

99–272, set out as a note under section 1341 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1021, 1057, 1082,

1084, 1085a, 1143, 1362, 1423 of this title; title 26 section

412.

§ 1084. Extension of amortization periods

(a) Determinations by Secretary in granting extension

The period of years required to amortize any

unfunded liability (described in any clause of

subsection (b)(2)(B) of section 1082 of this title)

of any plan may be extended by the Secretary

for a period of time (not in excess of 10 years) if

he determines that such extension would carry

out the purposes of this chapter and would provide adequate protection for participants under

the plan and their beneficiaries and if he determines that the failure to permit such extension

would—

(1) result in—

(A) a substantial risk to the voluntary

continuation of the plan, or

(B) a substantial curtailment of pension

benefit levels or employee compensation,

and

(2) be adverse to the interests of plan participants in the aggregate.

In the case of a plan other than a multiemployer

plan, the interest rate applicable for any plan

year under any arrangement entered into by the

Secretary in connection with an extension

granted under this subsection shall be the greater of (A) 150 percent of the Federal mid-term

rate (as in effect under section 1274 of title 26 for

the 1st month of such plan year), or (B) the rate

of interest used under the plan in determining

costs. In the case of a multiemployer plan, such

rate shall be the rate determined under section

6621(b) of title 26.

(b) Amendment of plan

(1) 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 shall

be adopted if a waiver under section 1083(a) of

this title or an extension of time under subsection (a) of this section is in effect with respect to the plan, or if a plan amendment described in section 1082(c)(8) of this title has been

made at any time in the preceding 12 months (24

months in the case of a multiemployer plan). If

a plan is amended in violation of the preceding

sentence, any such waiver, or extension of time,

shall not apply to any plan year ending on or

after the date on which such amendment is

adopted.

(2) Paragraph (1) shall not apply to any plan

amendment which—

(A) the Secretary determines to be reasonable and which provides for only de minimis

increases in the liabilities of the plan,

(B) only repeals an amendment described in

section 1082(c)(8) of this title, or

(C) is required as a condition of qualification

under part I of subchapter D, of chapter 1, of

title 26.

(c) Notice of filing of application for extension

(1) The Secretary of the Treasury shall, before

granting an extension under this section, require each applicant to provide evidence satisfactory to such Secretary that the applicant has

provided notice of the filing of the application

for such extension to each employee organization representing employees covered by the affected plan.

(2) The Secretary of the Treasury shall consider any relevant information provided by a

person to whom notice was given under paragraph (1).

(Pub. L. 93–406, title I, §304, Sept. 2, 1974, 88 Stat.

873; Pub. L. 99–272, title XI, §§11015(b)(1)(B),

11016(c)(3), Apr. 7, 1986, 100 Stat. 267, 273; Pub. L.

100–203, title IX, §9306(c)(2)(B), Dec. 22, 1987, 101

Stat. 1330–355; Pub. L. 101–239, title VII,

§§7891(a)(1), 7894(d)(3), Dec. 19, 1989, 103 Stat.

2445, 2449.)

REFERENCES IN TEXT

This chapter, referred to in subsec. (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.