29 U.S.C. § 1399 — Notice, collection, etc., of withdrawal li-

Page 713 TITLE 29—LABOR § 1399 (2) an employer suspends contributions under the plan during a labor dispute involv- ing its employees. For purposes of this part, a successor or parent corporation or other entity resulting from any such change shall be considered the original em- ployer. (Pub. L. 93–406, title IV, § 4218, as added Pub. L. 96–364, title I, § 104(2), Sept. 26, 1980, 94 Stat. 1236; amended Pub. L. 99–514, title XVIII, § 1879(u)(4), as added Pub. L. 101–239, title VII, § 7862(b)(1)(C), Dec. 19, 1989, 103 Stat. 2432; Pub. L. 101–239, title VII, § 7893(f), Dec. 19, 1989, 103 Stat. 2447.) Editorial Notes AMENDMENTS 1989—Par. (1)(A). Pub. L. 101–239, § 7893(f), made iden- tical amendment to that of Pub. L. 99–514, § 1879(u)(4), as added by Pub. L. 101–239, § 7862(b)(1)(C), see below. Pub. L. 101–239, § 7862(b)(1)(C), added Pub. L. 99–514, § 1879(u)(4), see 1986 Amendment note below. 1986—Par. (1)(A). Pub. L. 99–514, § 1879(u)(4), as added by Pub. L. 101–239, § 7862(b)(1)(C), substituted ‘‘section 1369(b) of this title’’ for ‘‘section 1362(d) of this title’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1989 AMENDMENT Amendment by section 7862(b)(1)(C) of Pub. L. 101–239 effective as if included in the provision of the Tax Re- form Act of 1986, Pub. L. 99–514, to which such amend- ment relates, see section 7863 of Pub. L. 101–239, set out as a note under section 106 of Title 26, Internal Revenue Code. Amendment by section 7893(f) of Pub. L. 101–239 effec- tive as if included in the provision of the Single-Em- ployer Pension Plan Amendments Act of 1986, Pub. L. 99–272, title XI, to which such amendment relates, see section 7893(h) of Pub. L. 101–239, set out as a note under section 1002 of this title. PLAN AMENDMENTS NOT REQUIRED UNTIL JANUARY 1, 1989 For provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§ 1101–1147 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. § 1399. Notice, collection, etc., of withdrawal li- ability (a) Furnishing of information by employer to plan sponsor An employer shall, within 30 days after a writ- ten request from the plan sponsor, furnish such information as the plan sponsor reasonably de- termines to be necessary to enable the plan sponsor to comply with the requirements of this part. (b) Notification, demand for payment, and re- view upon complete or partial withdrawal by employer (1) As soon as practicable after an employer’s complete or partial withdrawal, the plan spon- sor 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 de- termination of the amount of the unfunded vested benefits allocable to the employer, and (iii) may furnish any additional relevant in- formation to the plan sponsor. (B) After a reasonable review of any matter raised, the plan sponsor shall notify the em- ployer of— (i) the plan sponsor’s decision, (ii) the basis for the decision, and (iii) the reason for any change in the deter- mination of the employer’s liability or sched- ule 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 de- termined under section 1391 of this title, ad- justed if appropriate first under section 1389 of this title and then under section 1386 of this title over the period of years necessary to amor- tize the amount in level annual payments deter- mined 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 sub- sequent plan year. Actual payment shall com- mence in accordance with paragraph (2). (ii) The determination of the amortization pe- riod 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 pe- riod 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 contribu- tion 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 oc- curs. 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 de- scribed in section 1385(b)(1)(B)(i) of this title. Page 714 TITLE 29—LABOR § 1399 (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 ‘‘re- quired contributions’’ means, for any period, the amounts which the employer was obligated to contribute for such period (not taking into ac- count 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 Sep- tember 26, 1980, the number ‘‘5’’ shall be sub- stituted for the number ‘‘10’’ each place it ap- pears in clause (i) or clause (ii) (whichever is ap- propriate). If the plan is so amended, the num- ber ‘‘5’’ shall be increased by one for each suc- ceeding 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- 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 with- draw, shall be presumed to be a withdrawal pur- suant to an agreement or arrangement, unless the employer proves otherwise by a preponder- ance of the evidence. (E) In the case of a partial withdrawal de- scribed in section 1385(a) of this title, the amount of each annual payment shall be the product of— (i) the amount determined under subpara- graph (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 ac- cordance with the schedule set forth by the plan sponsor under subsection (b)(1) beginning no later than 60 days after the date of the demand notwithstanding any request for review or ap- peal of determinations of the amount of such li- ability or of the schedule. (3) Each annual payment determined under paragraph (1)(C) shall be payable in 4 equal in- stallments 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 prepay- ment is made pursuant to a withdrawal which is later determined to be part of a withdrawal de- scribed in paragraph (1)(D), the withdrawal li- ability 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 out- standing amount of an employer’s withdrawal li- ability, plus accrued interest on the total out- standing liability from the due date of the first payment which was not timely made. For pur- poses 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 like- lihood 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 reg- ulations 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 pay- ments under this section ceases at the end of the plan year in which the assets of the plan (exclu- sive of withdrawal liability claims) are suffi- cient to meet all obligations of the plan, as de- termined 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 or to any arrangement relating to withdrawal liability involving the plan. (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; Pub. L. 113–235, div. O, title II, § 201(a)(7)(B), Dec. 16, 2014, 128 Stat. 2810.) Page 715 TITLE 29—LABOR § 1401 Editorial Notes 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 prin- cipally 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 2014—Subsec. (d). Pub. L. 113–235 inserted ‘‘or to any arrangement relating to withdrawal liability involving the plan’’ before period at end. 1984—Subsec. (c)(1)(C)(iii). Pub. L. 98–369 substituted ‘‘September 26, 1980’’ for ‘‘April 29, 1980’’. § 1400. Approval of amendments (a) Amendment of covered multiemployer plan; procedures applicable Except as provided in subsection (b), 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 amend- ment, 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 com- puting 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 amend- ment referred to in subsection (a) or (b) only if the corporation determines that the amendment creates an unreasonable risk of loss to plan par- ticipants 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.) Editorial Notes 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 con- cerning 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 pe- riod 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 sec- tion 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 ar- bitrator. 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 reason- able 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 deter- mination shows by a preponderance of the evi- dence 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 de- termination is presumed correct unless a party contesting the determination shows by a pre- ponderance of evidence that— (i) the actuarial assumptions and methods used in the determination were, in the aggre- gate, unreasonable (taking into account the experience of the plan and reasonable expecta- tions), or (ii) the plan’s actuary made a significant error in applying the actuarial assumptions or methods. (b) Alternative collection proceedings; civil ac- tion subsequent to arbitration award; con- duct of arbitration proceedings (1) If no arbitration proceeding has been initi- ated pursuant to subsection (a), the amounts de- manded 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 col- lection. (2) Upon completion of the arbitration pro- ceedings 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 en- force, vacate, or modify the arbitrator’s award. (3) Any arbitration proceedings under this sec- tion 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 ar- bitrator In any proceeding under subsection (b), there shall be a presumption, rebuttable only by a clear preponderance of the evidence, that the findings of fact made by the arbitrator were cor- rect. (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 ac- cordance with the determinations made under