§ 1399 TITLE 29—LABOR Page 558

and 1171–1177] or title XVIII [§§1800–1899A] of Pub. L.

99–514 require an amendment to any plan, such plan

amendment shall not be required to be made before the

first plan year beginning on or after Jan. 1, 1989, see

section 1140 of Pub. L. 99–514, as amended, set out as a

note under section 401 of Title 26, Internal Revenue

Code.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1401 of this title.

§ 1399. Notice, collection, etc., of withdrawal liability

(a) Furnishing of information by employer to

plan sponsor

An employer shall, within 30 days after a written request from the plan sponsor, furnish such

information as the plan sponsor reasonably determines to be necessary to enable the plan

sponsor to comply with the requirements of this

part.

(b) Notification, demand for payment, and review upon complete or partial withdrawal by

employer

(1) As soon as practicable after an employer’s

complete or partial withdrawal, the plan sponsor shall—

(A) notify the employer of—

(i) the amount of the liability, and

(ii) the schedule for liability payments,

and

(B) demand payment in accordance with the

schedule.

(2)(A) No later than 90 days after the employer

receives the notice described in paragraph (1),

the employer—

(i) may ask the plan sponsor to review any

specific matter relating to the determination

of the employer’s liability and the schedule of

payments,

(ii) may identify any inaccuracy in the determination of the amount of the unfunded

vested benefits allocable to the employer, and

(iii) may furnish any additional relevant information to the plan sponsor.

(B) After a reasonable review of any matter

raised, the plan sponsor shall notify the employer of—

(i) the plan sponsor’s decision,

(ii) the basis for the decision, and

(iii) the reason for any change in the determination of the employer’s liability or schedule of liability payments.

(c) Payment requirements; amount, etc.

(1)(A)(i) Except as provided in subparagraphs

(B) and (D) of this paragraph and in paragraphs

(4) and (5), an employer shall pay the amount determined under section 1391 of this title, adjusted if appropriate first under section 1389 of

this title and then under section 1386 of this

title over the period of years necessary to amortize the amount in level annual payments determined under subparagraph (C), calculated as if

the first payment were made on the first day of

the plan year following the plan year in which

the withdrawal occurs and as if each subsequent

payment were made on the first day of each subsequent plan year. Actual payment shall commence in accordance with paragraph (2).

(ii) The determination of the amortization period described in clause (i) shall be based on the

assumptions used for the most recent actuarial

valuation for the plan.

(B) In any case in which the amortization period described in subparagraph (A) exceeds 20

years, the employer’s liability shall be limited

to the first 20 annual payments determined

under subparagraph (C).

(C)(i) Except as provided in subparagraph (E),

the amount of each annual payment shall be the

product of—

(I) the average annual number of contribution base units for the period of 3 consecutive

plan years, during the period of 10 consecutive

plan years ending before the plan year in

which the withdrawal occurs, in which the

number of contribution base units for which

the employer had an obligation to contribute

under the plan is the highest, and

(II) the highest contribution rate at which

the employer had an obligation to contribute

under the plan during the 10 plan years ending

with the plan year in which the withdrawal occurs.

For purposes of the preceding sentence, a partial

withdrawal described in section 1385(a)(1) of this

title shall be deemed to occur on the last day of

the first year of the 3-year testing period described in section 1385(b)(1)(B)(i) of this title.

(ii)(I) A plan may be amended to provide that

for any plan year ending before 1986 the amount

of each annual payment shall be (in lieu of the

amount determined under clause (i)) the average

of the required employer contributions under

the plan for the period of 3 consecutive plan

years (during the period of 10 consecutive plan

years ending with the plan year preceding the

plan year in which the withdrawal occurs) for

which such required contributions were the

highest.

(II) Subparagraph (B) shall not apply to any

plan year to which this clause applies.

(III) This clause shall not apply in the case of

any withdrawal described in subparagraph (D).

(IV) If under a plan this clause applies to any

plan year but does not apply to the next plan

year, this clause shall not apply to any plan

year after such next plan year.

(V) For purposes of this clause, the term ‘‘required contributions’’ means, for any period, the

amounts which the employer was obligated to

contribute for such period (not taking into account any delinquent contribution for any other

period).

(iii) A plan may be amended to provide that

for the first plan year ending on or after September 26, 1980, the number ‘‘5’’ shall be substituted for the number ‘‘10’’ each place it appears in clause (i) or clause (ii) (whichever is appropriate). If the plan is so amended, the number ‘‘5’’ shall be increased by one for each succeeding plan year until the number ‘‘10’’ is

reached.

(D) In any case in which a multiemployer plan

terminates by the withdrawal of every employer

from the plan, or in which substantially all the

employers withdraw from a plan pursuant to an

agreement or arrangement to withdraw from the

plan—

(i) the liability of each such employer who

has withdrawn shall be determined (or redeter-
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.)