29 U.S.C. § 1382 — Determination and collection of liability;

Page 699 TITLE 29—LABOR § 1382 set out as notes under section 401 of Title 26, Internal Revenue Code. SUBTITLE E—SPECIAL PROVISIONS FOR MULTIEMPLOYER PLANS Editorial Notes CODIFICATION Pub. L. 96–364, title I, § 104, Sept. 26, 1980, 94 Stat. 1217, added subtitle heading. Former subtitle E heading ‘‘Ef- fective Date; Special Rules’’ was struck out. See sub- title F of this subchapter. PART 1—EMPLOYER WITHDRAWALS § 1381. Withdrawal liability established; criteria and definitions (a) If an employer withdraws from a multiem- ployer plan in a complete withdrawal or a par- tial withdrawal, then the employer is liable to the plan in the amount determined under this part to be the withdrawal liability. (b) For purposes of subsection (a)— (1) The withdrawal liability of an employer to a plan is the amount determined under sec- tion 1391 of this title to be the allocable amount of unfunded vested benefits, ad- justed— (A) first, by any de minimis reduction ap- plicable under section 1389 of this title, (B) next, in the case of a partial with- drawal, in accordance with section 1386 of this title, (C) then, to the extent necessary to reflect the limitation on annual payments under section 1399(c)(1)(B) of this title, and (D) finally, in accordance with section 1405 of this title. (2) The term ‘‘complete withdrawal’’ means a complete withdrawal described in section 1383 of this title. (3) The term ‘‘partial withdrawal’’ means a partial withdrawal described in section 1385 of this title. (Pub. L. 93–406, title IV, § 4201, as added Pub. L. 96–364, title I, § 104(2), Sept. 26, 1980, 94 Stat. 1217.) Editorial Notes PRIOR PROVISIONS A prior section 1381, Pub. L. 93–406, title IV, § 4402, for- merly § 4082, Sept. 2, 1974, 88 Stat. 1034; S.Res. 4, Feb. 4, 1977; Pub. L. 95–214, § 1, Dec. 19, 1977, 91 Stat. 1501; S.Res. 30, Mar. 7, 1979; Pub. L. 96–24, June 19, 1979, 93 Stat. 70; Pub. L. 96–239, § 1, Apr. 30, 1980, 94 Stat. 341; Pub. L. 96–293, § 1, June 30, 1980, 94 Stat. 610, renumbered § 4402 and amended Pub. L. 96–364, title I, § 108(a)-(c)(1), Sept. 26, 1980, 94 Stat. 1267, relating to the effective dates and special rules for this subchapter, was transferred to section 1461 of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Part effective Sept. 26, 1980, see section 1461(e)(2) of this title. ELIMINATION OF RETROACTIVE APPLICATION OF AMEND- MENTS MADE BY MULTIEMPLOYER PENSION PLAN AMENDMENTS ACT OF 1980, PUB. L. 96–364 Pub. L. 98–369, div. A, title V, § 558(a), (c), (d), July 18, 1984, 98 Stat. 899, provided that: ‘‘(a) IN GENERAL.— ‘‘(1) LIABILITY.—Any withdrawal liability incurred by an employer pursuant to part 1 of subtitle E of title IV of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1381 et seq.) as a result of the complete or partial withdrawal of such employer from a multiemployer plan before September 26, 1980, shall be void. ‘‘(2) REFUNDS.—Any amounts paid by an employer to a plan sponsor as a result of such withdrawal li- ability shall be refunded by the plan sponsor to the employer with interest (in accordance with section 401(a)(2) [26 U.S.C. 401(a)(2)]), less a reasonable amount for administrative expenses incurred by the plan sponsor (other than legal expenses incurred with respect to the plan) in calculating, assessing, and re- funding such amounts. ‘‘(c) NO INCREASE IN LIABILITY.—The amendments made by this section [amending sections 1391, 1397, 1399, 1415 and 1461 of this title and provisions set out as a note under section 1385 of this title] shall not be con- strued to increase the liability incurred by any em- ployer pursuant to part 1 of subtitle E of title IV of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1381 et seq.), as in effect immediately before the amendments made by subsection (b) [amending sec- tions 1391, 1397, 1399, 1415, and 1461 of this title and pro- visions set out as a note under section 1385 of this title], as a result of the complete or partial withdrawal of such employer from a multiemployer plan prior to September 26, 1980. ‘‘(d) SPECIAL RULE FOR CERTAIN BINDING AGREE- MENTS.—In the case of an employer who, on September 26, 1980, has a binding agreement to withdraw from a multiemployer plan, subsection (a)(1) shall be applied by substituting ‘December 31, 1980’ for ‘September 26, 1980’.’’ APPLICABILITY TO CERTAIN EMPLOYERS WITHDRAWN BE- FORE SEPT. 26, 1980, FROM MULTIEMPLOYER PLAN COVERING EMPLOYEES IN SEAGOING INDUSTRY; EFFEC- TIVE DATE, COVERAGE, ETC. Pub. L. 96–364, title I, § 108(c)(4), Sept. 26, 1980, 94 Stat. 1269, provided that: ‘‘In the case of an employer who withdrew before the date of enactment of this Act [Sept. 26, 1980] from a multiemployer plan covering em- ployees in the seagoing industry (as determined by the corporation), sections 4201 through 4219 of the Em- ployee Retirement Income Security Act of 1974, as added by this Act, [section 1381 through 1399 of this title], are effective as of May 3, 1979. For the purpose of applying section 4217 [section 1397 of this title] for pur- poses of the preceding sentence, the date ‘May 2, 1979,’ shall be substituted for ‘April 28, 1980,’ and the date ‘May 3, 1979’ shall be substituted for ‘April 29, 1980’. For purposes of this paragraph, terms which are used in title IV of the Employee Retirement Income Security Act of 1974 [this subchapter], or in regulations pre- scribed under that title, and which are used in the pre- ceding sentence have the same meaning as when used in that Act [see Short Title note set out under sections 1001 of this title] or those regulations. For purposes of this paragraph, the term ‘employer’ includes only a substantial employer covering employees in the sea- going industry (as so determined) in connection with ports on the West Coast of the United States, but does not include an employer who withdrew from a plan be- cause of a change in the collective bargaining rep- resentative.’’ § 1382. Determination and collection of liability; notification of employer When an employer withdraws from a multiem- ployer plan, the plan sponsor, in accordance with this part, shall— (1) determine the amount of the employer’s withdrawal liability, (2) notify the employer of the amount of the withdrawal liability, and Page 700 TITLE 29—LABOR § 1383 (3) collect the amount of the withdrawal li- ability from the employer. (Pub. L. 93–406, title IV, § 4202, as added Pub. L. 96–364, title I, § 104(2), Sept. 26, 1980, 94 Stat. 1218.) § 1383. Complete withdrawal (a) Determinative factors For purposes of this part, a complete with- drawal from a multiemployer plan occurs when an employer— (1) permanently ceases to have an obligation to contribute under the plan, or (2) permanently ceases all covered oper- ations under the plan. (b) Building and construction industry (1) Notwithstanding subsection (a), in the case of an employer that has an obligation to con- tribute under a plan for work performed in the building and construction industry, a complete withdrawal occurs only as described in para- graph (2), if— (A) substantially all the employees with re- spect to whom the employer has an obligation to contribute under the plan perform work in the building and construction industry, and (B) the plan— (i) primarily covers employees in the building and construction industry, or (ii) is amended to provide that this sub- section applies to employers described in this paragraph. (2) A withdrawal occurs under this paragraph if— (A) an employer ceases to have an obligation to contribute under the plan, and (B) the employer— (i) continues to perform work in the juris- diction of the collective bargaining agree- ment of the type for which contributions were previously required, or (ii) resumes such work within 5 years after the date on which the obligation to con- tribute under the plan ceases, and does not renew the obligation at the time of the re- sumption. (3) In the case of a plan terminated by mass withdrawal (within the meaning of section 1341a(a)(2) of this title), paragraph (2) shall be applied by substituting ‘‘3 years’’ for ‘‘5 years’’ in subparagraph (B)(ii). (c) Entertainment industry (1) Notwithstanding subsection (a), in the case of an employer that has an obligation to con- tribute under a plan for work performed in the entertainment industry, primarily on a tem- porary or project-by-project basis, if the plan primarily covers employees in the entertain- ment industry, a complete withdrawal occurs only as described in subsection (b)(2) applied by substituting ‘‘plan’’ for ‘‘collective bargaining agreement’’ in subparagraph (B)(i) thereof. (2) For purposes of this subsection, the term ‘‘entertainment industry’’ means— (A) theater, motion picture (except to the extent provided in regulations prescribed by the corporation), radio, television, sound or visual recording, music, and dance, and (B) such other entertainment activities as the corporation may determine to be appro- priate. (3) The corporation may by regulation exclude a group or class of employers described in the preceding sentence from the application of this subsection if the corporation determines that such exclusion is necessary— (A) to protect the interest of the plan’s par- ticipants and beneficiaries, or (B) to prevent a significant risk of loss to the corporation with respect to the plan. (4) A plan may be amended to provide that this subsection shall not apply to a group or class of employers under the plan. (d) Other determinative factors (1) Notwithstanding subsection (a), in the case of an employer who— (A) has an obligation to contribute under a plan described in paragraph (2) primarily for work described in such paragraph, and (B) does not continue to perform work with- in the jurisdiction of the plan, a complete withdrawal occurs only as described in paragraph (3). (2) A plan is described in this paragraph if sub- stantially all of the contributions required under the plan are made by employers primarily engaged in the long and short haul trucking in- dustry, the household goods moving industry, or the public warehousing industry. (3) A withdrawal occurs under this paragraph if— (A) an employer permanently ceases to have an obligation to contribute under the plan or permanently ceases all covered operations under the plan, and (B) either— (i) the corporation determines that the plan has suffered substantial damage to its contribution base as a result of such ces- sation, or (ii) the employer fails to furnish a bond issued by a corporate surety company that is an acceptable surety for purposes of section 1112 of this title, or an amount held in es- crow by a bank or similar financial institu- tion satisfactory to the plan, in an amount equal to 50 percent of the withdrawal liabil- ity of the employer. (4) If, after an employer furnishes a bond or es- crow to a plan under paragraph (3)(B)(ii), the corporation determines that the cessation of the employer’s obligation to contribute under the plan (considered together with any cessations by other employers), or cessation of covered oper- ations under the plan, has resulted in substan- tial damage to the contribution base of the plan, the employer shall be treated as having with- drawn from the plan on the date on which the obligation to contribute or covered operations ceased, and such bond or escrow shall be paid to the plan. The corporation shall not make a de- termination under this paragraph more than 60 months after the date on which such obligation to contribute or covered operations ceased. (5) If the corporation determines that the em- ployer has no further liability under the plan ei- ther—