29 U.S.C. § 1402 — Reimbursements for uncollectible with-

Page 717 TITLE 29—LABOR § 1402 (i) employs not more than 500 employees, and (ii) is required to make contributions to the plan for not more than 250 employees. (B) CONTROLLED GROUP.—Any group treated as a single employer under subsection (b)(1) of section 1301 of this title, without regard to any transaction that was a basis for the plan’s finding under section 1392 of this title, shall be treated as a single employer for purposes of this subparagraph. (4) ADDITIONAL SECURITY PENDING RESOLUTION OF DISPUTE.—If a withdrawal liability dispute to which this subsection applies is not concluded by 12 months after the electing person posts the bond or escrow described in paragraph (2), the electing person shall, at the start of each suc- ceeding 12-month period, provide an additional bond or amount held in escrow equal to the sum of the withdrawal liability payments that would otherwise be payable to the plan during that pe- riod. (5) The liability of the party furnishing a bond or escrow under this subsection shall be reduced, upon the payment of the bond or escrow to the plan, by the amount thereof. (Pub. L. 93–406, title IV, § 4221, as added Pub. L. 96–364, title I, § 104(2), Sept. 26, 1980, 94 Stat. 1239; amended Pub. L. 108–218, title II, § 202(a), Apr. 10, 2004, 118 Stat. 608; Pub. L. 109–280, title II, § 204(d)(1), Aug. 17, 2006, 120 Stat. 887; Pub. L. 110–458, title I, § 105(b)(2), Dec. 23, 2008, 122 Stat. 5105.) Editorial Notes AMENDMENTS 2008—Subsecs. (e) to (g). Pub. L. 110–458 redesignated subsecs. (f) and (g) as (e) and (f), respectively, and struck out former subsec. (e). Prior to amendment, text read as follows: ‘‘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 informa- tion to the employer without charge. If any employer requests in writing that the plan sponsor make an esti- mate 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.’’ 2006—Subsec. (g). Pub. L. 109–280 added subsec. (g). 2004—Subsec. (f). Pub. L. 108–218 added subsec. (f). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2008 AMENDMENT Amendment by Pub. L. 110–458 effective as if included in the provisions of Pub. L. 109–280 to which the amend- ment relates, except as otherwise provided, see section 112 of Pub. L. 110–458, set out as a note under section 72 of Title 26, Internal Revenue Code. EFFECTIVE DATE OF 2006 AMENDMENT Pub. L. 109–280, title II, § 204(d)(2), Aug. 17, 2006, 120 Stat. 889, provided that: ‘‘The amendments made by this subsection [amending this section] shall apply to any person that receives a notification under section 4219(b)(1) of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1399(b)(1)] on or after the date of enactment of this Act [Aug. 17, 2006] with respect to a transaction that occurred after December 31, 1998.’’ EFFECTIVE DATE OF 2004 AMENDMENT Pub. L. 108–218, title II, § 202(b), Apr. 10, 2004, 118 Stat. 609, provided that: ‘‘The amendments made by this sec- tion [amending this section] shall apply to any em- ployer that receives a notification under section 4219(b)(1) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1399(b)(1)) after October 31, 2003.’’ § 1402. Reimbursements for uncollectible with- drawal liability (a) Required supplemental program to reimburse for payments due from employers uncollectible as a result of employer involve- ment in bankruptcy case or proceedings; pro- gram participation, premiums, etc. By May 1, 1982, the corporation shall establish by regulation a supplemental program to reim- burse multiemployer plans for withdrawal liabil- ity payments which are due from employers and which are determined to be uncollectible for reasons arising out of cases or proceedings in- volving the employers under title 11, or similar cases or proceedings. Participation in the sup- plemental program shall be on a voluntary basis, and a plan which elects coverage under the program shall pay premiums to the corpora- tion in accordance with a premium schedule which shall be prescribed from time to time by the corporation. The premium schedule shall contain such rates and bases for the application of such rates as the corporation considers to be appropriate. (b) Discretionary supplemental program to reim- burse for payments due from employers uncollectible for other appropriate reasons The corporation may provide under the pro- gram for reimbursement of amounts of with- drawal liability determined to be uncollectible for any other reasons the corporation considers appropriate. (c) Payment of cost of program The cost of the program (including such ad- ministrative and legal costs as the corporation considers appropriate) may be paid only out of premiums collected under such program. (d) Terms and conditions, limitations, etc., of supplemental program The supplemental program may be offered to eligible plans on such terms and conditions, and with such limitations with respect to the pay- ment of reimbursements (including the exclu- sion of de minimis amounts of uncollectible em- ployer liability, and the reduction or elimi- nation of reimbursements which cannot be paid from collected premiums) and such restrictions on withdrawal from the program, as the corpora- tion considers necessary and appropriate. (e) Arrangements by corporation with private in- surers for implementation of program; elec- tion of coverage by participating plans with private insurers The corporation may enter into arrangements with private insurers to carry out in whole or in part the program authorized by this section and may require plans which elect coverage under the program to elect coverage by those private insurers. (Pub. L. 93–406, title IV, § 4222, as added Pub. L. 96–364, title I, § 104(2), Sept. 26, 1980, 94 Stat. 1240.) Page 718 TITLE 29—LABOR § 1403 1 So in original. Probably should be followed by ‘‘and’’. § 1403. Withdrawal liability payment fund (a) Establishment of or participation in fund by plan sponsors The plan sponsors of multiemployer plans may establish or participate in a withdrawal liability payment fund. (b) Definitions For purposes of this section, the term ‘‘with- drawal liability payment fund’’, and the term ‘‘fund’’, mean a trust which— (1) is established and maintained under sec- tion 501(c)(22) of title 26, (2) maintains agreements which cover a sub- stantial portion of the participants who are in multiemployer plans which (under the rules of the trust instrument) are eligible to partici- pate in the fund, (3) is funded by amounts paid by the plans which participate in the fund, and (4) is administered by a Board of Trustees, and in the administration of the fund there is equal representation of— (A) trustees representing employers who are obligated to contribute to the plans par- ticipating in the fund, and (B) trustees representing employees who are participants in plans which participate in the fund. (c) Payments to plan; amount, criteria, etc. (1) If an employer withdraws from a plan which participates in a withdrawal liability pay- ment fund, then, to the extent provided in the trust, the fund shall pay to that plan— (A) the employer’s unattributable liability, (B) the employer’s withdrawal liability pay- ments which would have been due but for sec- tion 1388, 1389, 1399, or 1405 of this title,1 (C) the employer’s withdrawal liability pay- ments to the extent they are uncollectible. (2) The fund may provide for the payment of the employer’s attributable liability if the fund— (A) provides for the payment of both the at- tributable and the unattributable liability of the employer in a single payment, and (B) is subrogated to all rights of the plan against the employer. (3) For purposes of this section, the term— (A) ‘‘attributable liability’’ means the ex- cess, if any, determined under the provisions of a plan not inconsistent with regulations of the corporation, of— (i) the value of vested benefits accrued as a result of service with the employer, over (ii) the value of plan assets attributed to the employer, and (B) ‘‘unattributable liability’’ means the ex- cess of withdrawal liability over attributable liability. Such terms may be further defined, and the manner in which they shall be applied may be prescribed, by the corporation by regulation. (4)(A) The trust of a fund shall be maintained for the exclusive purpose of paying— (i) any amount described in paragraph (1) and paragraph (2), and (ii) reasonable and necessary administrative expenses in connection with the establishment and operation of the trust and the processing of claims against the fund. (B) The amounts paid by a plan to a fund shall be deemed a reasonable expense of admin- istering the plan under sections 1103(c)(1) and 1104(a)(1)(A)(ii) of this title, and the payments made by a fund to a participating plan shall be deemed services necessary for the operation of the plan within the meaning of section 1108(b)(2) of this title or within the meaning of section 4975(d)(2) of title 26. (d) Application of payments by plan (1) For purposes of this part— (A) only amounts paid by the fund to a plan under subsection (c)(1)(A) shall be credited to withdrawal liability otherwise payable by the employer, unless the plan otherwise provides, and (B) any amounts paid by the fund under sub- section (c) to a plan shall be treated by the plan as a payment of withdrawal liability to such plan. (2) For purposes of applying provisions relat- ing to the funding standard accounts (and min- imum contribution requirements), amounts paid from the plan to the fund shall be applied to re- duce the amount treated as contributed to the plan. (e) Subrogation of fund to rights of plan The fund shall be subrogated to the rights of the plan against the employer that has with- drawn from the plan for amounts paid by a fund to a plan under— (1) subsection (c)(1)(A), to the extent not credited under subsection (d)(1)(A), and (2) subsection (c)(1)(C). (f) Discharge of rights of fiduciary of fund; stand- ards applicable, etc. Notwithstanding any other provision of this chapter, a fiduciary of the fund shall discharge the fiduciary’s duties with respect to the fund in accordance with the standards for fiduciaries prescribed by this chapter (to the extent not in- consistent with the purposes of this section), and in accordance with the documents and in- struments governing the fund insofar as such documents and instruments are consistent with the provisions of this chapter (to the extent not inconsistent with the purposes of this section). The provisions of the preceding sentence shall supersede any and all State laws relating to fi- duciaries insofar as they may now or hereafter relate to a fund to which this section applies. (g) Prohibition on payments from fund to plan where certain labor negotiations involve em- ployer withdrawn or partially withdrawn from plan and continuity of labor organiza- tion representing employees continues No payments shall be made from a fund to a plan on the occasion of a withdrawal or partial withdrawal of an employer from such plan if the employees representing the withdrawn contribu- tion base units continue, after such withdrawal, to be represented under section 159 of this title (or other applicable labor laws) in negotiations