Election of Multiemployer Plan Status, 40176-40181 [E7-14247]
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Federal Register / Vol. 72, No. 140 / Monday, July 23, 2007 / Notices
Act. Closed pursuant to Exemptions (6),
(8), and (9).
2. Action under Section 205 of the
Federal Credit Union Act. Closed
pursuant to Exemptions (5), (6), (7), and
(8).
FOR FURTHER INFORMATION CONTACT:
Mary Rupp, Secretary of the Board,
Telephone: 703–518–6304.
Mary Rupp,
Secretary of the Board.
[FR Doc. 07–3613 Filed 7–19–07; 3:25 pm]
BILLING CODE 7535–07–M
NATIONAL FOUNDATION ON THE
ARTS AND THE HUMANITIES
National Endowment for the Arts;
Proposed Collection: Comment
Request
ACTION:
including the validity of the
methodology and assumptions used;
—Enhance the quality, utility and
clarity of the information to be
collected; and
—Minimize the burden of the collection
of information on those who are to
respond, including the use of
appropriate automated, electronic,
mechanical, or other technological
collection techniques or other forms
of information technology, e.g.,
permitting the electronic submissions
of responses.
ADDRESSES: Alice Whelihan, National
Endowment for the Arts, 1100
Pennsylvania Avenue, NW., Room 726,
Washington, DC 20506–0001, telephone
(202) 682–5574 (this is not a toll-free
number), fax (202) 682–5603.
Murray Welsh,
Director, Administrative Services.
[FR Doc. E7–14133 Filed 7–20–07; 8:45 am]
Notice.
The National Endowment for
the Arts, as part of its continuing effort
to reduce paperwork and respondent
burden, conducts a preclearance
consultation program to provide the
general public and Federal agencies
with an opportunity to comment on
proposed and/or continuing collections
of information in accordance with the
Paperwork Reduction Act of 1995
(PRA95) [44 U.S.C. 3506(c)(A)]. This
program helps ensure that requested
data can be provided in the desired
format, reporting burden (time and
financial resources) is minimized,
collection instruments are clearly
understood, and the impact of collection
requirements on respondents can be
properly assessed. Currently, the
National Endowment for the Arts, on
behalf of the Federal Council on the
Arts and the Humanities, is soliciting
comments concerning renewal of the
Application for Indemnification. A copy
of this collection request can be
obtained by contacting the office listed
below in the address section of this
notice.
BILLING CODE 7536–01–P
SUMMARY:
Written comments must be
submitted to the office listed in the
address section below on or before
September 17, 2007. The National
Endowment for the Arts is particularly
interested in comments which:
—Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information will have
practical utility;
—Evaluate the accuracy of the agency’s
estimate of the burden of the
proposed collection of information
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DATES:
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PENSION BENEFIT GUARANTY
CORPORATION
Election of Multiemployer Plan Status
Pension Benefit Guaranty
Corporation.
ACTION: Notice.
AGENCY:
SUMMARY: This Notice establishes
implementing procedures for a special
election concerning multiemployer plan
status that may be made under the
Employee Retirement Income Security
Act of 1974, as amended by the Pension
Protection Act of 2006. Under these
procedures, an eligible plan may elect to
be a multiemployer plan for all
purposes under ERISA and the Internal
Revenue Code of 1986.
FOR FURTHER INFORMATION CONTACT: John
H. Hanley, Director, or Constance
Markakis, Attorney, Legislative and
Regulatory Department, Pension Benefit
Guaranty Corporation,1200 K Street,
NW., Washington. DC 20005–4026; 202–
326–4024. (TTY/TDD users may call the
Federal relay service toll-free at 1–800–
877–8339 and ask to be connected to
202–326–4024.)
SUPPLEMENTARY INFORMATION:
The Pension Protection Act of 2006
The Pension Protection Act of 2006
(‘‘PPA 2006’’), Public Law 109–280, 120
Stat. 780, became law on August 17,
2006, and amended the Employee
Retirement Income Security Act of 1974
(‘‘ERISA’’) and the Internal Revenue
Code of 1986 (the ‘‘Code’’). ERISA and
the Code, as amended by section 1106
of PPA 2006, was further amended by
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section 6611(a) of the fiscal year 2007
supplemental appropriations legislation,
Public Law 110–28, 121 Stat. 112,
which became law on May 25, 2007.
Reference in this document to any
ERISA provision should be construed to
include reference to any parallel
provision in section 414(f) of the Code.
Election of Multiemployer Plan Status
Generally
Section 1106 of PPA amended the
definition of a ‘‘multiemployer plan’’
under ERISA and the Code to allow
certain plans to elect to be
multiemployer plans, pursuant to
procedures prescribed by PBGC. An
eligible plan may elect to be a
multiemployer plan for all purposes
under ERISA and the Code, provided
that PBGC procedures are followed and
the election is made on or before August
17, 2007. Under Public Law 110–28, an
election is effective starting with any
plan year beginning on or after January
1, 1999, and ending before January 1,
2008, as designated by the plan in its
election. No later than 30 days before an
election is made, the plan administrator
must give notice of the pending election
to each plan participant and beneficiary,
each labor organization representing
such participants or beneficiaries, and
each employer that has an obligation to
contribute to the plan. (See Model
Notice of Pending Election Regarding
Plan’s Status issued by the Department
of Labor, https://www.dol.gov/ebsa/regs/
fedreg/notices/2006009491.htm.) In
order to be eligible for the election, a
plan must satisfy the requirements of
section 3(37)(G)(i)(I) or section
3(37)(G)(i)(II) of ERISA.
Election To Revoke Single-Employer
Plan Status
Under section 3(37)(G)(i)(I) of ERISA,
a plan may revoke an existing election
under section 3(37)(E) to be treated as a
single-employer plan. An election made
under section 3(37)(G)(i)(I) is
irrevocable.
Section 3(37)(E) of ERISA, as
amended by the Multiemployer Pension
Plan Amendments Act of 1980,
permitted a plan that was excluded from
multiemployer status under the prior
contributions test,1 and that would
otherwise be a multiemployer plan, to
continue its single-employer status. To
do so, a plan was required to follow
1 Prior to amendment by the Multiemployer
Pension Plan Amendments Act of 1980, the
definition of a multiemployer plan excluded a plan
if one of its employers contributed 50% or more of
the total annual contributions made under the plan
(or 75% or more of the total contributions, if a plan
met the less than 50% contributions test for any
preceding plan year). (ERISA sections 3(37)(A)(iii)
and 3(37)(B)(i) prior to September 26, 1980.)
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PBGC procedures, including a written
notice of election filed with PBGC. An
election was effective upon written
approval by PBGC.
In order to be eligible under PPA to
revoke an election made under the 1980
Multiemployer Act, the plan must show
that, for each of last three plan years
before August 17, 2006, the plan would
have been a multiemployer plan absent
the election. Under section 3(37)(A), a
multiemployer plan is defined as a plan
to which more than one employer is
required to contribute, that is
maintained pursuant to one or more
collective bargaining agreements
between one or more employee
organizations and more than one
employer, and that satisfies the
requirements established under
Department of Labor (‘‘DOL’’)
regulations. For these purposes, all
trades or business (whether or not
incorporated) under common control
within the meaning of section 4001(b)(1)
of ERISA (or section 414(c) of the Code)
are considered a single employer.
DOL regulations (29 CFR 2510.3–37)
prescribe other requirements that a plan
must meet, in addition to those
contained in section 3(37)(A) of ERISA,
to be a multiemployer plan. The
regulation provides that a
multiemployer plan established on or
after September 2, 1974, must further
meet the requirement that it was
established for a substantial business
purpose, which includes the interest of
a labor organization in securing an
employee benefit plan for its members,
in accordance with relevant factors set
forth under the regulation.
Election by Plans With Significant
Contributions by Tax-Exempt
Organizations
Under section 3(37)(G)(i)(II) of ERISA,
a plan may elect to be a multiemployer
plan if it meets the criteria for a
multiemployer plan under clauses (i)
and (ii) of section 3(37)(A). Specifically,
for the plan year ending after August 17,
2006, and for each of the three plan
years ending immediately before the
first plan year for which the plan elects
multiemployer status, the plan must be
a plan to which more than one employer
is required to contribute, and that is
maintained pursuant to one or more
collective bargaining agreements. For
these purposes, all trades or businesses
(whether or not incorporated) under
common control within the meaning of
section 4001(b)(1) of ERISA (or section
414(c) of the Code) are considered a
single employer.
In addition, the plan must have been
established before September 2, 1974,
and, for each of the three plan years
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immediately preceding the first plan
year for which the plan elects
multiemployer status, substantially all
of the plan’s employer contributions
must have been made or required to be
made by organizations that were exempt
from taxation under section 501 of the
Code. A plan is not required to satisfy
the multiemployer criteria if that plan
was sponsored by an organization
described in section 501(c)(5) of the
Code, exempt from taxation under
section 501(a) of the Code, and
established in Chicago, Illinois, on
August 12, 1881.
An election under section
3(37)(G)(i)(II) is irrevocable, except that
the plan ceases to be a multiemployer
plan as of the plan year beginning
immediately after the first plan year for
which more than fifty percent of all of
the plan’s employer contributions were
made or required to be made by
organizations that were not exempt from
taxation under section 501 of the Code.
Explanation of PBGC Procedures
Election Requirements
Under section 2(b) of the procedures,
a plan making an election under section
3(37)(G)(i)(I) of ERISA must demonstrate
that it would have been a
multiemployer plan but for the existing
election. The specific information
required under section 3(d) of the
procedures to demonstrate compliance
with section 3(37) includes the identity
of the contributing employers to the
plan, information on whether trades or
businesses that are required to
contribute to the plan are under
common control, and copies of
collective bargaining agreements for the
three largest contributing employers to
the plan (in amount of contributions).
Pursuant to section 6611(a) of Public
Law 110–28, for the limited purpose of
this election and these procedures, a
plan will be treated as maintained
pursuant to one or more collective
bargaining agreements if a collective
bargaining agreement, expressly or
otherwise, provides for or permits
employer contributions to the plan by
one or more employers that are
signatory to such agreement, or
participation in the plan by one or more
employees of an employer that is
signatory to such agreement, regardless
of whether the plan was created,
established, or maintained for such
employees by virtue of another
document that is not a collective
bargaining agreement.
In satisfying clause (iii) of section
3(37)(A) of ERISA, the procedures allow
a plan some flexibility in establishing
whether it was in existence before
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September 2, 1974. The procedures
require the best available evidence that,
before September 2, 1974, more than
one employer was required to contribute
to the plan under one or more collective
bargaining agreements. PBGC may in its
discretion accept evidence for this
proof. For a plan established on or after
September 2, 1974, the procedures also
require the plan to show compliance
with 29 CFR 2510.3–37(c) of the
Department of Labor regulations.
A plan making an election under
section 2(b) of the procedures is
required to submit a copy of PBGC’s
written decision approving the plan’s
post-1980 election to continue being a
single-employer plan under section
3(37)(E) of ERISA. To address the
possibility that a plan may no longer
have PBGC’s written decision, the
procedures permit a plan to produce the
plan amendment adopted pursuant to,
and cotemporaneous with, the election
under section 4303 of ERISA providing
that the plan will be treated as a singleemployer plan. In addition, the
procedures require a written statement
signed by the plan sponsor that the plan
received PBGC’s written approval for
the election.
Under section 2(c) of the procedures,
a plan making an election under section
3(37)(G)(i)(II) of ERISA must provide
evidence that it satisfies certain criteria
for a multiemployer plan in section
3(37) for the first plan year ending after
August 17, 2006, and for each of the
three plan years ending immediately
before the first plan year for which the
plan elects multiemployer status. In this
regard, the information required under
section 3(d) (and the exceptions thereto)
is the same as the information required
for a plan electing multiemployer status
under section 2(b), except that a plan
eligible for the election under section
2(c) is not required to satisfy clause (iii)
of section 3(37)(A).
For purposes of establishing that
substantially all of the employer
contributions were made or required to
be made by organizations that are
exempt from taxation under section 501
of the Code, the procedures require a
copy of a governmental filing or
document evidencing the tax-exempt
status of each contributing employer
that meets this definition, for each of the
three plan years ending immediately
before the effective date of the
multiemployer election; appropriate
filings or documents include a current
favorable determination letter issued by
the Internal Revenue Service (‘‘IRS’’)
approving the organization’s exempt
status, an IRS Form 990 or Form 990–
EZ (Return of Organization Exempt from
Income Tax) (copy of first page and
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signed and dated last page), or a Form
LM–2 or LM–3 (Labor Organization
Annual Report) filed with the DOL
(copy of signed and dated first page).
A plan must also provide the amount
of annual contributions that were made
or required to be made in the aggregate
by all tax-exempt organizations, and the
percentage of such contributions to the
total annual contributions to the plan.
The PBGC procedures establish a safe
harbor for plans certifying that at least
85 percent of all employer contributions
for the relevant plan year were made or
required to be made by tax-exempt
organizations. A plan that meets this
safe harbor is required to provide
evidence of the tax-exempt status of
only those employers needed to reach
the 85 percent threshold, and not the
tax-exempt status of any additional
employers. PBGC will review the filing
of a plan that is unable to certify to the
safe harbor provision and will approve
the election if it determines that the
requirements of section
3(37)(G)(i)(II)(bb) are met under all the
relevant facts and circumstances
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Notice to PBGC
Section 3 of these procedures
prescribes the requirements for giving
notice of an election to PBGC, including
due dates, how to file, and contents of
the notice, which as explained above are
necessary to satisfy the statutory
requirements for an election. The plan’s
submission to PBGC must include a
copy of the notice of the pending
election of multiemployer plan status to
participants and other parties and a
written statement signed by the plan
administrator that it has complied with
the notice requirements in section
3(37)(G)(v)(I). Information provided
under these procedures is subject to
disclosure under FOIA.
A summary checklist of information
and documents for an election filing is
found at the end of the procedures. A
filing is considered complete if it
substantially includes the information
in the checklist. A complete filing is
required for a timely election. PBGC
may permit a plan sponsor to
supplement or update a filing after the
election deadline if PBGC determines
that the omitted item was minor in
nature and the plan sponsor reasonably
believed that the filing was complete at
the time it was filed, or the plan sponsor
can show there was good cause for the
omission. PBGC may request additional
information relating to the requirements
under these procedures at any time
without affecting the timeliness of the
filing.
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PBGC Action
Depending on the number of filings
PBGC receives and the volume of
material submitted with each file, there
may be some delay before PBGC is able
to determine that the information
requirements set forth in the procedures
are met. A plan that has properly filed
an election is not prohibited from acting
in accordance with the election solely
because PBGC has not issued a decision
approving or disapproving the election
on or before August 17, 2007. However,
if PBGC subsequently disapproves the
election, any actions taken by the plan
will need to be corrected.
PBGC will issue a written decision on
a plan’s request for approval of an
election. PBGC will approve the election
based on its determination that a plan
has complied with these procedures
based on the plan’s information and
representations in its notice of election
to PBGC. PBGC may audit the plan to
verify any information or representation
made and may revoke its approval if the
plan is unable to verify the
representations made or the information
submitted. Consistent with section 4003
of ERISA, plans should maintain
records necessary to verify the
representations and information
submitted in support of the election. In
addition, PBGC may audit a plan for
continued compliance with the legallymandated percentage of tax-exempt
contributing employers or other
statutory or regulatory requirements.
The Code and ERISA may impose
additional recordkeeping requirements
that are under the jurisdiction of the
Internal Revenue Service or the
Department of Labor. See section 6001
of the Code and section 107 of ERISA.
PBGC approval has no effect on the
rights of private parties nor the
authority of other Federal agencies.
However, PBGC has been advised by
both the Internal Revenue Service and
the Department of Labor that, for the
limited purposes of an election under
section 3(37)(G) of ERISA and section
414(f)(6) of the Code, the agencies will
follow the safe harbor for a
demonstration that substantially all of
the plan’s employer contributions were
made by tax-exempt organizations.
The information collection in these
procedures has been approved by the
Office of Management and Budget under
OMB control number 1212–0062. An
agency may not conduct or sponsor, and
a person is not required to respond to,
a collection of information unless it
displays a currently valid OMB control
number.
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PBGC Procedures Election of
Multiemployer Plan Status
Sec.
1 Purpose and Scope.
2 Eligibility and Requirements for Election.
3 Notice of Election.
4 PBGC Action on Election.
Authority: 29 U.S.C. 1002(3)(37).
Section 1 Purpose and Scope
(a) Purpose. This notice establishes
procedures for an eligible plan to elect
under section 3(37)(G) of the Employee
Retirement Income Security Act of 1974,
as amended (‘‘ERISA’’), and section
414(f)(6) of the Internal Revenue Code of
1986, as amended (‘‘Code’’), to be a
multiemployer plan for all purposes
under ERISA and the Code.
(b) Scope. This notice applies to any
plan covered under section 4021(a) of
ERISA:
(1) That made an election to be treated
as a single-employer plan pursuant to
section 3(37)(E) and section 4303 of
ERISA, and that otherwise satisfies the
criteria for a multiemployer plan under
section 3(37)(G) of ERISA, and
(2) That satisfies certain criteria for a
multiemployer plan under section
3(37)(G) of ERISA or is otherwise
specifically described, that is sponsored
in large part by organizations that are
exempt from taxation under section 501
of the Code, and that was established
before September 2, 1974.
Section 2 Eligibility and Requirements
for Election
(a) General rule. A plan that is eligible
to make an election under paragraph (b)
or paragraph (c) of this section and
makes a valid election in accordance
with the procedures in section 3 and
within the time limits specified in
paragraph (e) of this section will be
treated as a multiemployer plan for all
purposes under ERISA and the Code.
An election made under this notice is
irrevocable, except as provided under
paragraph (f) of this section.
(b) Eligibility for election to revoke
single-employer status. A plan may elect
to be a multiemployer plan if—
(1) The plan made an irrevocable
election to be a single-employer plan
pursuant to section 3(37)(E) and section
4303 of ERISA; and
(2) For each of the last three plan
years ending on or before August 17,
2006, the plan would have been a
multiemployer plan described in section
3(37) of ERISA (modified in accordance
with paragraph (e) of section 3 of these
procedures), absent the election under
section 3(37)(E). (For this purpose, all
trades or businesses (whether or not
incorporated) under common control
within the meaning of section 4001(b)(1)
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of ERISA (or section 414(c) of the Code)
are considered a single employer.)
(c) Eligibility for election to be a
multiemployer plan by plans
maintained by tax-exempt employers.
Except as provided in paragraph (d) of
this section, a plan may elect to be a
multiemployer plan if—
(1) For the first plan year ending after
August 17, 2006, and each of the three
plan years ending immediately before
the first plan year for which the plan
elects multiemployer status, the plan
met the criteria in section 3(37)(A)(i)
and (ii) of ERISA (modified in
accordance with paragraph (e) of section
3 of these procedures). (For this
purpose, all trades or businesses
(whether or not incorporated) under
common control within the meaning of
section 4001(b)(1) of ERISA (or section
414(c) of the Code) are considered a
single employer.) Solely for purposes of
this election and these procedures, a
plan would not be treated as failing to
satisfy the requirement for more than
one employer in section 3(37)(A)(i) and
(ii) for the first plan year ending after
August 17, 2006, solely as a result of a
reduction to less than two employers
required to contribute pursuant to a
collective bargaining agreement that
occurs in the intervening period from
the effective date of the election;
(2) For each of the last three plan
years ending immediately before the
first plan year for which the plan elects
multiemployer status, substantially all
of the plan’s employer contributions
were made or required to be made by
employers that were exempt from
taxation under section 501 of the Code
(see paragraph (c) of section 4); and
(3) The plan was established prior to
September 2, 1974.
(d) Exception. The conditions stated
in paragraph (c)(1) of this section are
met if the plan is sponsored by an
organization which is described in
section 501(c)(5) of the Code and
exempt from taxation under section
501(a) of the Code, and which was
established in Chicago, Illinois, on
August 12, 1881.
(e) Requirements for an effective
election. An election is effective only
if—
(1) A written notice of the election
that conforms with the requirements of
section 3 of these procedures is filed by
the plan with PBGG on or before August
17, 2007, and at least 30 days after the
plan administrator has provided notice
of the pending election to each plan
participant and beneficiary, each labor
organization representing such
participants or beneficiaries, and each
employer that has an obligation to
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contribute to the plan, in accordance
with ERISA section 3(37)(G)(v)(I); and
(2) The election is approved by PBGC.
(f) Effect of election. An election
approved by PBGC will be effective for
all purposes under ERISA and the Code
as of the first day of the first plan year
for which the plan elects multiemployer
status, starting with any plan year
beginning on or after January 1, 1999,
and ending before January 1, 2008. If
approved, an election will be
irrevocable, except that a plan described
in paragraph (c) of this section will
automatically cease to be a
multiemployer plan as of the first day of
the plan year beginning immediately
after the first plan year for which a
majority of its employer contributions
were made or required to be made by
organizations that were not exempt from
taxation under section 501 of the Code.
Section 3 Notice of Election
(a) General. A written notice of
election must be filed with PBGC no
later than August 17, 2007. The notice
of election must include a copy of the
notice of the pending election provided
to participants and other parties in
accordance with ERISA section
3(37)(G)(v)(I) and a signed statement
signed by the plan administrator that it
has complied with the notice
requirements in section 3(37)(G)(v)(I).
(b) Who must sign notice. A notice
under these procedures must be signed
by the plan sponsor or a duly authorized
representative acting on behalf of the
plan sponsor.
(c) How to file. A notice under these
procedures may be filed by hand, mail,
commercial delivery service, or
electronic means. The notice may be
provided to: Multiemployer Program
Division, Pension Benefit Guaranty
Corporation, 1200 K Street, NW., Suite
930, Washington, DC 20005, faxed to
202–326–4243, or e-mailed to
Multiemployerprogram@PBGC.gov.
(d) Content. In addition to the
information required in paragraph (a) of
this section, and except as provided in
paragraph (g) of this section, each notice
under these procedures must contain
the following information:
(1) The name of the plan and the
plan’s PN and EIN (if applicable);
(2) The name, address and telephone
number of the plan administrator, and
of the duly-authorized representative, if
any, of the plan administrator;
(3) The first plan year for which an
election is effective with respect to the
plan;
(4) For each of the three plan years
ending immediately before the first plan
year for which the plan elects
multiemployer status—
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(i) The trust agreement, plan
document, plan amendments, and
summary plan description in effect;
(ii) The name and EIN of each
employer required to contribute to the
plan and information as to whether any
trades or businesses required to
contribute to the plan are under
common control; and
(iii) A copy of each collective
bargaining agreement obligating an
employer to make contributions to the
plan for the three largest contributing
employers to the plan (in amount of
contributions).
(5) For a plan electing multiemployer
status under paragraph (b) of section 2—
(i) The information described in
paragraph (d)(4) of this section for each
of the three plan years ending on or
before August 17, 2006 (rather than for
the plan years described in paragraph
(d)(4));
(ii) A copy of the PBGC’s decision
approving the plan’s application to stay
a single-employer plan pursuant to
section 3(37)(E) of ERISA, or, if such
documentation is unavailable, a copy of
the plan amendment required pursuant
to section 4303 of ERISA providing that
the plan will be treated as a singleemployer plan, evidence that the
amendment was adopted
contemporaneous with the election, and
a written statement signed by the plan
sponsor that the plan’s election to be a
single-employer plan under section
3(37)(E) of ERISA was approved by the
PBGC; and
(iii) For a plan established—
(I) Before September 2, 1974, the best
available evidence that, for the plan year
preceding September 2, 1974, the plan
was one to which more than one
employer was required to contribute
under one or more collective bargaining
agreements between one or more
employee organizations and more than
one employer;
(II) On or after September 2, 1974,
demonstrate that the requirement (I)
above is met and show compliance with
29 CFR 2510.3–37(c) of the Department
of Labor regulations.
(6) For a plan electing multiemployer
status under paragraph (c) of section 2—
(i) The information described in
paragraph (d)(4) of this section for the
first plan year ending after August 17,
2006 (in addition to the plan years
described in paragraph (d)(4)), or,
documentation showing that there has
been a reduction in the intervening
period since the plan years described in
paragraph (d)(4) to less than two of the
number of employers required to
contribute pursuant to a collective
bargaining agreement;
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40180
Federal Register / Vol. 72, No. 140 / Monday, July 23, 2007 / Notices
(ii) For each of the three plan years
ending immediately before the first plan
year for which the plan elects
multiemployer status, a list of all
employers that made contributions or
were required to make contributions to
the plan and that were also exempt from
taxation under section 501 of the Code,
and with respect to each such employer,
a copy of a favorable determination
letter issued by the Internal Revenue
Service (‘‘IRS’’) approving the
organization’s exempt status that is
currently effective, an IRS Form 990 or
Form 990–EZ (Return of Organization
Exempt from Income Tax) (copy of first
page and signed and dated last page)
applicable to each tax year ending with
or within the last three plan years, or a
Form LM–2 or LM–3 (Labor
Organization Annual Report) filed with
the DOL (copy of signed and dated first
page) applicable to each fiscal year
ending with or within the last three plan
years. If the plan sponsor certifies to the
safe harbor provision in clause (iii) of
this subparagraph (6), documentation on
the tax-exempt status of employers
beyond the safe harbor is not required;
(iii) The amount of the annual
contributions in the aggregate that were
made or required to be made by all taxexempt organizations listed in
paragraph (d)(6)(ii) of this section for
each year described in such paragraph
(d)(6)(ii), and the percentage of the
contributions made or required to be
made in the aggregate by all tax-exempt
organizations to the total annual
contributions to the plan. If at least 85
percent of all employer contributions for
the relevant plan year were made or
required to be made by tax-exempt
organizations, submit a written
statement by the plan sponsor to that
effect; and
(iv) A plan document, trust
instrument, plan amendment, or Plan
Description Form D–1 or Annual Report
Form D–2 under the Welfare and
Pension Plans Disclosure Act, from a
period in the plan’s existence prior to
September 2, 1974 (if this
documentation is unavailable, a plan
may submit for PBGC’s review
documentation from a later date that
provides substantial evidence of the
plan’s existence before September 2,
1974).
(e) Collective bargaining agreement.
For the limited purpose of this election
and these procedures, a collective
bargaining agreement means a written
agreement between a bona fide
employee representative and an
employer that, expressly or otherwise,
provides for or permits employer
contributions to the plan by one or more
employers that are signatory to such
VerDate Aug<31>2005
17:09 Jul 20, 2007
Jkt 211001
agreement, or participation in the plan
by one or more employees of an
employer that is signatory to such
agreement, regardless of whether the
plan was created, established, or
maintained for such employees by
virtue of another document that is not
a collective bargaining agreement.
(f) Additional information. In addition
to the information described in
paragraph (d) of this section, PBGC may
require the plan sponsor to submit any
other information directly related to
these requirements that PBGC
determines it needs to review a notice
of election. Additional information must
be submitted within 60 days of PBGC’s
request.
(g) Exception for a certain plan. A
plan sponsored by an organization
which is described in section 501(c)(5)
of the Code and exempt from tax under
section 501(a) of the Code and which
was established in Chicago, Illinois, on
August 12, 1881, that files a notice
under these procedures must establish
its identity accordingly and is not
required to provide the information
described in paragraph (d)(4)(iii) of this
section.
Section 4 PBGC Action on Election
(a) General. PBGC’s decision
approving or disapproving an election
will be in writing. If PBGC disapproves
the election, the decision will state the
reasons for the determination. PBGC
will approve the election based on its
determination that a plan has complied
with these procedures based on the
plan’s information and representations
in its notice of election to PBGC. PBGC
may audit a plan to verify any
information or representation made and
may revoke its approval if the plan is
unable to verify the representations
made or the information submitted.
Consistent with section 4003 of ERISA,
plans should maintain records
necessary to verify the representations
and information submitted in support of
the election. The Code and ERISA may
impose additional recordkeeping
requirements that are under the
jurisdiction of the Internal Revenue
Service or the Department of Labor. See
section 6001 of the Code and section
107 of ERISA.
(b) Effect of PBGC decision. PBGC
approval has no effect on the rights of
private parties nor the authority of other
Federal agencies. However, PBGC has
been advised by both the Internal
Revenue Service and the Department of
Labor that, for the limited purposes of
an election under section 3(37)(G) of
ERISA and section 414(f)(6) of the Code,
the agencies will follow the safe harbor
provision under section 4(c).
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Frm 00071
Fmt 4703
Sfmt 4703
(c) Safe Harbor (Tax-Exempt
Organizations). A plan will be deemed
to comply with the requirement that
substantially all of the plan’s employer
contributions were made or required to
be made by tax-exempt organizations if
the plan certifies that at least 85 percent
of all employer contributions for the
relevant plan year were made or
required to be made by employers that
were exempt from taxation under
section 501 of the Code.
PBGC will review the filing of a plan
that is unable to certify to the safe
harbor provision and will approve the
election if it determines that the
requirements of section
3(37)(G)(i)(II)(bb) are met under all the
relevant facts and circumstances.
Issued in Washington, DC, on this 18th day
of July 2007.
Charles E. F. Millard,
Interim Director, Pension Benefit Guaranty
Corporation.
Checklist of Documents and
Information
I. Name of plan
Plan number
Plan EIN
Name, address, telephone number of plan
administrator and representative (if any)
First PY for which the plan is electing
multiemployer status
II. For each of 3 PYs ending before first PY
that plan elects multiemployer status:
• Trust agreement (one copy if same for 3
years)
• Plan document (one copy if same for 3
years)
• Summary plan description (one copy if
same for 3 years)
• Plan amendments
• Name and EIN of each employer required
to contribute to plan
• Information whether trades or businesses
required to contribute to plan are under
common control
• Copies of collective bargaining
agreements for 3 largest contributing
employers (in amount of contributions)
III. For plans electing under section 2(b) of
the procedures:
• Information in II is required for each of
3 PYs ending before 8–17–2006 (rather
than PYs described in II)
• PBGC approval of election to stay a
single-employer plan under ERISA
section 3(37)(E), or copy of amendment,
evidence of timeliness, and certification
that election was approved
• Best available evidence that before 9–2–
74, plan had more than 1 contributing
employer under collective bargaining
agreements
• If plan established after 9–2–74, best
available evidence that plan had more
than 1 contributing employer under
collective bargaining agreements and
compliance with section 2510.3–37(c) of
DOL regulations
IV. For plans electing under section 2(c) of
the procedures:
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Federal Register / Vol. 72, No. 140 / Monday, July 23, 2007 / Notices
• Information in II is required for PY
ending after 8–17–2006 (or, evidence of
a reduction in number of employers to
less than two since the PYs described in
II), in addition to PYs described in II
• For PYs described in II, list contributing
employers exempt under section 501
• For employers listed above, evidence of
exempt status—IRS approval letter; IRS
Form 990 or Form 990–EZ (first page and
signed and dated last page only); copy of
LM–2 or LM–3 (signed and dated first
page only)
• For PYs described in II, aggregate
contributions by employers listed above,
and percentage of the total annual
contributions to plan
• If percentage above at least 85%, written
statement by plan administrator
• Plan document, trust instrument, plan
amendment, Plan Description Form D–1,
or Annual Report Form D–2 from period
before 9–2–74, or if unavailable,
documentation from later date providing
substantial evidence of plan’s existence
before 9–2–74
[FR Doc. E7–14247 Filed 7–20–07; 8:45 am]
BILLING CODE 7709–01–P
SECURITIES AND EXCHANGE
COMMISSION
sroberts on PROD1PC70 with NOTICES
Sunshine Act Meetings
Notice is hereby given, pursuant to
the provisions of the Government in the
Sunshine Act, Pub. L. 94–409, that the
Securities and Exchange Commission
will hold the following meetings during
the week of July 23, 2007:
Open Meetings will be held on
Tuesday, July 24, 2007 at 10 a.m. and
Wednesday, July 25, 2007, at 10 a.m., in
the Auditorium, Room L–002 and
Closed Meetings will be held on
Tuesday, July 24, 2007 at 11 a.m. and
Thursday, July 26, 2007 at 2 p.m.
Commissioners, Counsel to the
Commissioners, the Secretary to the
Commission, and recording secretaries
will attend the Closed Meetings. Certain
staff members who have an interest in
the matters may also be present.
The General Counsel of the
Commission, or his designee, has
certified that, in his opinion, one or
more of the exemptions set forth in 5
U.S.C. 552b(c)(3), (5), (7), (8), (9)(B), and
(10) and 17 CFR 200.402(a)(3), (5), (7),
(8), 9(ii) and (10), permit consideration
of the scheduled matters at the Closed
Meetings.
Chairman Cox, as duty officer, voted
to consider the items listed for the
closed meetings in closed sessions.
The subject matter of the Open
Meeting scheduled for Tuesday, July 24,
2007 will be:
The Commission will hear oral
argument in an appeal by Gregory M.
VerDate Aug<31>2005
17:09 Jul 20, 2007
Jkt 211001
Dearlove, CPA, from the decision of an
administrative law judge. The law judge
found that the financial statements of
Adelphia Communications Corporation,
a public company, for the period ending
December 31, 2000 violated generally
accepted accounting principles in
several respects. The law judge also
found that Dearlove, a certified public
accountant and former partner at
Deloitte and Touche, LLP, engaged in
improper professional conduct under
Commission Rule of Practice 102(e)
when he served as the engagement
partner on Deloitte’s audit of Adelphia’s
2000 financial statements. The law
judge also found that Dearlove caused
Adelphia’s violations of the reporting
and recordkeeping provisions of the
Securities Exchange Act of 1934,
specifically, Exchange Act Section 13(a)
and rules 13a–1 and 12b–20 thereunder,
and Exchange Act Section 13(b)(2)(A).
The law judge barred Dearlove from
appearing or practicing before the
Commission in any capacity.
Among the issues likely to be argued
are whether Dearlove’s conduct during
the audit constituted improper
professional conduct, whether Dearlove
caused Adelphia’s violations of the
Exchange Act and rules thereunder, and
whether there is merit to Dearlove’s
contention that he was deprived of due
process because he did not have
adequate time to prepare for the hearing
before the law judge. The parties may
also address whether and to what extent
Dearlove should be sanctioned if he is
found to have committed the alleged
violations.
The subject matter of the Closed
Meeting scheduled for Tuesday, July 24,
2007 will be:
Post-argument discussion.
The subject matter of the Open
Meeting scheduled for Wednesday, July
25, 2007 will be:
1. The Commission will consider
whether to approve the Public Company
Accounting Oversight Board’s Auditing
Standard No. 5, An Audit of Internal
Control Over Financial Reporting that is
Integrated with an Audit of Financial
Statements, a Related Independence
Rule 3525, and Conforming
Amendments.
2. The Commission will consider
whether to adopt rule amendments to
Exchange Act Rule 12b–2 and Rule 1–
02 of Regulation S–X to define the term
‘‘significant deficiency.’’
3. The Commission will consider
whether to publish a Concept Release to
solicit public comment on allowing U.S
issuers, including investment
companies subject to the Investment
Company Act of 1940, to prepare
financial statements in accordance with
PO 00000
Frm 00072
Fmt 4703
Sfmt 4703
40181
International Financial Reporting
Standards as published in English by
the International Accounting Standards
Board for purposes of complying with
the Commission’s rules and regulations.
4. The Commission will consider
whether to propose amendments to the
proxy rules under the Securities
Exchange Act of 1934 for operating and
investment companies regarding
shareholder proposals, disclosure about
shareholder proponents, shareholder
communications, and related matters.
The subject matter of the Closed
Meeting scheduled for Thursday, July
26, 2007 will be:
Formal orders of investigations;
Institution and settlement of
injunctive actions;
Institution and settlement of
administrative proceedings of an
enforcement nature;
Resolution of litigation claims;
Amicus consideration;
An adjudicatory matters; and
Other matters related to enforcement
proceedings.
At times, changes in Commission
priorities require alterations in the
scheduling of meeting items.
For further information and to
ascertain what, if any, matters have been
added, deleted or postponed, please
contact:
The Office of the Secretary at (202)
551–5400.
Dated: July 18, 2007.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E7–14216 Filed 7–20–07; 8:45 am]
BILLING CODE 8010–01–P
SECURITIES AND EXCHANGE
COMMISSION
In the matter of Bentley Commerce
Corp., File No. 500–1.; Order of
Suspension of Trading
July 19, 2007.
It appears to the Securities and
Exchange Commission that there is a
lack of current and accurate information
concerning the securities of Bentley
Commerce Corp. because it has not filed
any periodic reports since it filed a
Form 10–QSB for the period ended
March 31, 2005.
The Commission is of the opinion that
the public interest and the protection of
investors require a suspension of trading
in the securities of the above-listed
company.
Therefore, it is ordered, pursuant to
Section 12(k) of the Securities Exchange
Act of 1934, that trading in Bentley
Commerce Corp. is suspended for the
period from 9:30 a.m. EDT on July 19,
E:\FR\FM\23JYN1.SGM
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]]>Agencies
[Federal Register Volume 72, Number 140 (Monday, July 23, 2007)]
[Notices]
[Pages 40176-40181]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-14247]
=======================================================================
-----------------------------------------------------------------------
PENSION BENEFIT GUARANTY CORPORATION
Election of Multiemployer Plan Status
AGENCY: Pension Benefit Guaranty Corporation.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: This Notice establishes implementing procedures for a special
election concerning multiemployer plan status that may be made under
the Employee Retirement Income Security Act of 1974, as amended by the
Pension Protection Act of 2006. Under these procedures, an eligible
plan may elect to be a multiemployer plan for all purposes under ERISA
and the Internal Revenue Code of 1986.
FOR FURTHER INFORMATION CONTACT: John H. Hanley, Director, or Constance
Markakis, Attorney, Legislative and Regulatory Department, Pension
Benefit Guaranty Corporation,1200 K Street, NW., Washington. DC 20005-
4026; 202-326-4024. (TTY/TDD users may call the Federal relay service
toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.)
SUPPLEMENTARY INFORMATION:
The Pension Protection Act of 2006
The Pension Protection Act of 2006 (``PPA 2006''), Public Law 109-
280, 120 Stat. 780, became law on August 17, 2006, and amended the
Employee Retirement Income Security Act of 1974 (``ERISA'') and the
Internal Revenue Code of 1986 (the ``Code''). ERISA and the Code, as
amended by section 1106 of PPA 2006, was further amended by section
6611(a) of the fiscal year 2007 supplemental appropriations
legislation, Public Law 110-28, 121 Stat. 112, which became law on May
25, 2007. Reference in this document to any ERISA provision should be
construed to include reference to any parallel provision in section
414(f) of the Code.
Election of Multiemployer Plan Status Generally
Section 1106 of PPA amended the definition of a ``multiemployer
plan'' under ERISA and the Code to allow certain plans to elect to be
multiemployer plans, pursuant to procedures prescribed by PBGC. An
eligible plan may elect to be a multiemployer plan for all purposes
under ERISA and the Code, provided that PBGC procedures are followed
and the election is made on or before August 17, 2007. Under Public Law
110-28, an election is effective starting with any plan year beginning
on or after January 1, 1999, and ending before January 1, 2008, as
designated by the plan in its election. No later than 30 days before an
election is made, the plan administrator must give notice of the
pending election to each plan participant and beneficiary, each labor
organization representing such participants or beneficiaries, and each
employer that has an obligation to contribute to the plan. (See Model
Notice of Pending Election Regarding Plan's Status issued by the
Department of Labor, https://www.dol.gov/ebsa/regs/fedreg/notices/
2006009491.htm.) In order to be eligible for the election, a plan must
satisfy the requirements of section 3(37)(G)(i)(I) or section
3(37)(G)(i)(II) of ERISA.
Election To Revoke Single-Employer Plan Status
Under section 3(37)(G)(i)(I) of ERISA, a plan may revoke an
existing election under section 3(37)(E) to be treated as a single-
employer plan. An election made under section 3(37)(G)(i)(I) is
irrevocable.
Section 3(37)(E) of ERISA, as amended by the Multiemployer Pension
Plan Amendments Act of 1980, permitted a plan that was excluded from
multiemployer status under the prior contributions test,\1\ and that
would otherwise be a multiemployer plan, to continue its single-
employer status. To do so, a plan was required to follow
[[Page 40177]]
PBGC procedures, including a written notice of election filed with
PBGC. An election was effective upon written approval by PBGC.
---------------------------------------------------------------------------
\1\ Prior to amendment by the Multiemployer Pension Plan
Amendments Act of 1980, the definition of a multiemployer plan
excluded a plan if one of its employers contributed 50% or more of
the total annual contributions made under the plan (or 75% or more
of the total contributions, if a plan met the less than 50%
contributions test for any preceding plan year). (ERISA sections
3(37)(A)(iii) and 3(37)(B)(i) prior to September 26, 1980.)
---------------------------------------------------------------------------
In order to be eligible under PPA to revoke an election made under
the 1980 Multiemployer Act, the plan must show that, for each of last
three plan years before August 17, 2006, the plan would have been a
multiemployer plan absent the election. Under section 3(37)(A), a
multiemployer plan is defined as a plan to which more than one employer
is required to contribute, that is maintained pursuant to one or more
collective bargaining agreements between one or more employee
organizations and more than one employer, and that satisfies the
requirements established under Department of Labor (``DOL'')
regulations. For these purposes, all trades or business (whether or not
incorporated) under common control within the meaning of section
4001(b)(1) of ERISA (or section 414(c) of the Code) are considered a
single employer.
DOL regulations (29 CFR 2510.3-37) prescribe other requirements
that a plan must meet, in addition to those contained in section
3(37)(A) of ERISA, to be a multiemployer plan. The regulation provides
that a multiemployer plan established on or after September 2, 1974,
must further meet the requirement that it was established for a
substantial business purpose, which includes the interest of a labor
organization in securing an employee benefit plan for its members, in
accordance with relevant factors set forth under the regulation.
Election by Plans With Significant Contributions by Tax-Exempt
Organizations
Under section 3(37)(G)(i)(II) of ERISA, a plan may elect to be a
multiemployer plan if it meets the criteria for a multiemployer plan
under clauses (i) and (ii) of section 3(37)(A). Specifically, for the
plan year ending after August 17, 2006, and for each of the three plan
years ending immediately before the first plan year for which the plan
elects multiemployer status, the plan must be a plan to which more than
one employer is required to contribute, and that is maintained pursuant
to one or more collective bargaining agreements. For these purposes,
all trades or businesses (whether or not incorporated) under common
control within the meaning of section 4001(b)(1) of ERISA (or section
414(c) of the Code) are considered a single employer.
In addition, the plan must have been established before September
2, 1974, and, for each of the three plan years immediately preceding
the first plan year for which the plan elects multiemployer status,
substantially all of the plan's employer contributions must have been
made or required to be made by organizations that were exempt from
taxation under section 501 of the Code. A plan is not required to
satisfy the multiemployer criteria if that plan was sponsored by an
organization described in section 501(c)(5) of the Code, exempt from
taxation under section 501(a) of the Code, and established in Chicago,
Illinois, on August 12, 1881.
An election under section 3(37)(G)(i)(II) is irrevocable, except
that the plan ceases to be a multiemployer plan as of the plan year
beginning immediately after the first plan year for which more than
fifty percent of all of the plan's employer contributions were made or
required to be made by organizations that were not exempt from taxation
under section 501 of the Code.
Explanation of PBGC Procedures
Election Requirements
Under section 2(b) of the procedures, a plan making an election
under section 3(37)(G)(i)(I) of ERISA must demonstrate that it would
have been a multiemployer plan but for the existing election. The
specific information required under section 3(d) of the procedures to
demonstrate compliance with section 3(37) includes the identity of the
contributing employers to the plan, information on whether trades or
businesses that are required to contribute to the plan are under common
control, and copies of collective bargaining agreements for the three
largest contributing employers to the plan (in amount of
contributions).
Pursuant to section 6611(a) of Public Law 110-28, for the limited
purpose of this election and these procedures, a plan will be treated
as maintained pursuant to one or more collective bargaining agreements
if a collective bargaining agreement, expressly or otherwise, provides
for or permits employer contributions to the plan by one or more
employers that are signatory to such agreement, or participation in the
plan by one or more employees of an employer that is signatory to such
agreement, regardless of whether the plan was created, established, or
maintained for such employees by virtue of another document that is not
a collective bargaining agreement.
In satisfying clause (iii) of section 3(37)(A) of ERISA, the
procedures allow a plan some flexibility in establishing whether it was
in existence before September 2, 1974. The procedures require the best
available evidence that, before September 2, 1974, more than one
employer was required to contribute to the plan under one or more
collective bargaining agreements. PBGC may in its discretion accept
evidence for this proof. For a plan established on or after September
2, 1974, the procedures also require the plan to show compliance with
29 CFR 2510.3-37(c) of the Department of Labor regulations.
A plan making an election under section 2(b) of the procedures is
required to submit a copy of PBGC's written decision approving the
plan's post-1980 election to continue being a single-employer plan
under section 3(37)(E) of ERISA. To address the possibility that a plan
may no longer have PBGC's written decision, the procedures permit a
plan to produce the plan amendment adopted pursuant to, and
cotemporaneous with, the election under section 4303 of ERISA providing
that the plan will be treated as a single-employer plan. In addition,
the procedures require a written statement signed by the plan sponsor
that the plan received PBGC's written approval for the election.
Under section 2(c) of the procedures, a plan making an election
under section 3(37)(G)(i)(II) of ERISA must provide evidence that it
satisfies certain criteria for a multiemployer plan in section 3(37)
for the first plan year ending after August 17, 2006, and for each of
the three plan years ending immediately before the first plan year for
which the plan elects multiemployer status. In this regard, the
information required under section 3(d) (and the exceptions thereto) is
the same as the information required for a plan electing multiemployer
status under section 2(b), except that a plan eligible for the election
under section 2(c) is not required to satisfy clause (iii) of section
3(37)(A).
For purposes of establishing that substantially all of the employer
contributions were made or required to be made by organizations that
are exempt from taxation under section 501 of the Code, the procedures
require a copy of a governmental filing or document evidencing the tax-
exempt status of each contributing employer that meets this definition,
for each of the three plan years ending immediately before the
effective date of the multiemployer election; appropriate filings or
documents include a current favorable determination letter issued by
the Internal Revenue Service (``IRS'') approving the organization's
exempt status, an IRS Form 990 or Form 990-EZ (Return of Organization
Exempt from Income Tax) (copy of first page and
[[Page 40178]]
signed and dated last page), or a Form LM-2 or LM-3 (Labor Organization
Annual Report) filed with the DOL (copy of signed and dated first
page).
A plan must also provide the amount of annual contributions that
were made or required to be made in the aggregate by all tax-exempt
organizations, and the percentage of such contributions to the total
annual contributions to the plan. The PBGC procedures establish a safe
harbor for plans certifying that at least 85 percent of all employer
contributions for the relevant plan year were made or required to be
made by tax-exempt organizations. A plan that meets this safe harbor is
required to provide evidence of the tax-exempt status of only those
employers needed to reach the 85 percent threshold, and not the tax-
exempt status of any additional employers. PBGC will review the filing
of a plan that is unable to certify to the safe harbor provision and
will approve the election if it determines that the requirements of
section 3(37)(G)(i)(II)(bb) are met under all the relevant facts and
circumstances
Notice to PBGC
Section 3 of these procedures prescribes the requirements for
giving notice of an election to PBGC, including due dates, how to file,
and contents of the notice, which as explained above are necessary to
satisfy the statutory requirements for an election. The plan's
submission to PBGC must include a copy of the notice of the pending
election of multiemployer plan status to participants and other parties
and a written statement signed by the plan administrator that it has
complied with the notice requirements in section 3(37)(G)(v)(I).
Information provided under these procedures is subject to disclosure
under FOIA.
A summary checklist of information and documents for an election
filing is found at the end of the procedures. A filing is considered
complete if it substantially includes the information in the checklist.
A complete filing is required for a timely election. PBGC may permit a
plan sponsor to supplement or update a filing after the election
deadline if PBGC determines that the omitted item was minor in nature
and the plan sponsor reasonably believed that the filing was complete
at the time it was filed, or the plan sponsor can show there was good
cause for the omission. PBGC may request additional information
relating to the requirements under these procedures at any time without
affecting the timeliness of the filing.
PBGC Action
Depending on the number of filings PBGC receives and the volume of
material submitted with each file, there may be some delay before PBGC
is able to determine that the information requirements set forth in the
procedures are met. A plan that has properly filed an election is not
prohibited from acting in accordance with the election solely because
PBGC has not issued a decision approving or disapproving the election
on or before August 17, 2007. However, if PBGC subsequently disapproves
the election, any actions taken by the plan will need to be corrected.
PBGC will issue a written decision on a plan's request for approval
of an election. PBGC will approve the election based on its
determination that a plan has complied with these procedures based on
the plan's information and representations in its notice of election to
PBGC. PBGC may audit the plan to verify any information or
representation made and may revoke its approval if the plan is unable
to verify the representations made or the information submitted.
Consistent with section 4003 of ERISA, plans should maintain records
necessary to verify the representations and information submitted in
support of the election. In addition, PBGC may audit a plan for
continued compliance with the legally-mandated percentage of tax-exempt
contributing employers or other statutory or regulatory requirements.
The Code and ERISA may impose additional recordkeeping requirements
that are under the jurisdiction of the Internal Revenue Service or the
Department of Labor. See section 6001 of the Code and section 107 of
ERISA.
PBGC approval has no effect on the rights of private parties nor
the authority of other Federal agencies. However, PBGC has been advised
by both the Internal Revenue Service and the Department of Labor that,
for the limited purposes of an election under section 3(37)(G) of ERISA
and section 414(f)(6) of the Code, the agencies will follow the safe
harbor for a demonstration that substantially all of the plan's
employer contributions were made by tax-exempt organizations.
The information collection in these procedures has been approved by
the Office of Management and Budget under OMB control number 1212-0062.
An agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
PBGC Procedures Election of Multiemployer Plan Status
Sec.
1 Purpose and Scope.
2 Eligibility and Requirements for Election.
3 Notice of Election.
4 PBGC Action on Election.
Authority: 29 U.S.C. 1002(3)(37).
Section 1 Purpose and Scope
(a) Purpose. This notice establishes procedures for an eligible
plan to elect under section 3(37)(G) of the Employee Retirement Income
Security Act of 1974, as amended (``ERISA''), and section 414(f)(6) of
the Internal Revenue Code of 1986, as amended (``Code''), to be a
multiemployer plan for all purposes under ERISA and the Code.
(b) Scope. This notice applies to any plan covered under section
4021(a) of ERISA:
(1) That made an election to be treated as a single-employer plan
pursuant to section 3(37)(E) and section 4303 of ERISA, and that
otherwise satisfies the criteria for a multiemployer plan under section
3(37)(G) of ERISA, and
(2) That satisfies certain criteria for a multiemployer plan under
section 3(37)(G) of ERISA or is otherwise specifically described, that
is sponsored in large part by organizations that are exempt from
taxation under section 501 of the Code, and that was established before
September 2, 1974.
Section 2 Eligibility and Requirements for Election
(a) General rule. A plan that is eligible to make an election under
paragraph (b) or paragraph (c) of this section and makes a valid
election in accordance with the procedures in section 3 and within the
time limits specified in paragraph (e) of this section will be treated
as a multiemployer plan for all purposes under ERISA and the Code. An
election made under this notice is irrevocable, except as provided
under paragraph (f) of this section.
(b) Eligibility for election to revoke single-employer status. A
plan may elect to be a multiemployer plan if--
(1) The plan made an irrevocable election to be a single-employer
plan pursuant to section 3(37)(E) and section 4303 of ERISA; and
(2) For each of the last three plan years ending on or before
August 17, 2006, the plan would have been a multiemployer plan
described in section 3(37) of ERISA (modified in accordance with
paragraph (e) of section 3 of these procedures), absent the election
under section 3(37)(E). (For this purpose, all trades or businesses
(whether or not incorporated) under common control within the meaning
of section 4001(b)(1)
[[Page 40179]]
of ERISA (or section 414(c) of the Code) are considered a single
employer.)
(c) Eligibility for election to be a multiemployer plan by plans
maintained by tax-exempt employers. Except as provided in paragraph (d)
of this section, a plan may elect to be a multiemployer plan if--
(1) For the first plan year ending after August 17, 2006, and each
of the three plan years ending immediately before the first plan year
for which the plan elects multiemployer status, the plan met the
criteria in section 3(37)(A)(i) and (ii) of ERISA (modified in
accordance with paragraph (e) of section 3 of these procedures). (For
this purpose, all trades or businesses (whether or not incorporated)
under common control within the meaning of section 4001(b)(1) of ERISA
(or section 414(c) of the Code) are considered a single employer.)
Solely for purposes of this election and these procedures, a plan would
not be treated as failing to satisfy the requirement for more than one
employer in section 3(37)(A)(i) and (ii) for the first plan year ending
after August 17, 2006, solely as a result of a reduction to less than
two employers required to contribute pursuant to a collective
bargaining agreement that occurs in the intervening period from the
effective date of the election;
(2) For each of the last three plan years ending immediately before
the first plan year for which the plan elects multiemployer status,
substantially all of the plan's employer contributions were made or
required to be made by employers that were exempt from taxation under
section 501 of the Code (see paragraph (c) of section 4); and
(3) The plan was established prior to September 2, 1974.
(d) Exception. The conditions stated in paragraph (c)(1) of this
section are met if the plan is sponsored by an organization which is
described in section 501(c)(5) of the Code and exempt from taxation
under section 501(a) of the Code, and which was established in Chicago,
Illinois, on August 12, 1881.
(e) Requirements for an effective election. An election is
effective only if--
(1) A written notice of the election that conforms with the
requirements of section 3 of these procedures is filed by the plan with
PBGG on or before August 17, 2007, and at least 30 days after the plan
administrator has provided notice of the pending election to each plan
participant and beneficiary, each labor organization representing such
participants or beneficiaries, and each employer that has an obligation
to contribute to the plan, in accordance with ERISA section
3(37)(G)(v)(I); and
(2) The election is approved by PBGC.
(f) Effect of election. An election approved by PBGC will be
effective for all purposes under ERISA and the Code as of the first day
of the first plan year for which the plan elects multiemployer status,
starting with any plan year beginning on or after January 1, 1999, and
ending before January 1, 2008. If approved, an election will be
irrevocable, except that a plan described in paragraph (c) of this
section will automatically cease to be a multiemployer plan as of the
first day of the plan year beginning immediately after the first plan
year for which a majority of its employer contributions were made or
required to be made by organizations that were not exempt from taxation
under section 501 of the Code.
Section 3 Notice of Election
(a) General. A written notice of election must be filed with PBGC
no later than August 17, 2007. The notice of election must include a
copy of the notice of the pending election provided to participants and
other parties in accordance with ERISA section 3(37)(G)(v)(I) and a
signed statement signed by the plan administrator that it has complied
with the notice requirements in section 3(37)(G)(v)(I).
(b) Who must sign notice. A notice under these procedures must be
signed by the plan sponsor or a duly authorized representative acting
on behalf of the plan sponsor.
(c) How to file. A notice under these procedures may be filed by
hand, mail, commercial delivery service, or electronic means. The
notice may be provided to: Multiemployer Program Division, Pension
Benefit Guaranty Corporation, 1200 K Street, NW., Suite 930,
Washington, DC 20005, faxed to 202-326-4243, or e-mailed to
Multiemployerprogram@PBGC.gov.
(d) Content. In addition to the information required in paragraph
(a) of this section, and except as provided in paragraph (g) of this
section, each notice under these procedures must contain the following
information:
(1) The name of the plan and the plan's PN and EIN (if applicable);
(2) The name, address and telephone number of the plan
administrator, and of the duly-authorized representative, if any, of
the plan administrator;
(3) The first plan year for which an election is effective with
respect to the plan;
(4) For each of the three plan years ending immediately before the
first plan year for which the plan elects multiemployer status--
(i) The trust agreement, plan document, plan amendments, and
summary plan description in effect;
(ii) The name and EIN of each employer required to contribute to
the plan and information as to whether any trades or businesses
required to contribute to the plan are under common control; and
(iii) A copy of each collective bargaining agreement obligating an
employer to make contributions to the plan for the three largest
contributing employers to the plan (in amount of contributions).
(5) For a plan electing multiemployer status under paragraph (b) of
section 2--
(i) The information described in paragraph (d)(4) of this section
for each of the three plan years ending on or before August 17, 2006
(rather than for the plan years described in paragraph (d)(4));
(ii) A copy of the PBGC's decision approving the plan's application
to stay a single-employer plan pursuant to section 3(37)(E) of ERISA,
or, if such documentation is unavailable, a copy of the plan amendment
required pursuant to section 4303 of ERISA providing that the plan will
be treated as a single-employer plan, evidence that the amendment was
adopted contemporaneous with the election, and a written statement
signed by the plan sponsor that the plan's election to be a single-
employer plan under section 3(37)(E) of ERISA was approved by the PBGC;
and
(iii) For a plan established--
(I) Before September 2, 1974, the best available evidence that, for
the plan year preceding September 2, 1974, the plan was one to which
more than one employer was required to contribute under one or more
collective bargaining agreements between one or more employee
organizations and more than one employer;
(II) On or after September 2, 1974, demonstrate that the
requirement (I) above is met and show compliance with 29 CFR 2510.3-
37(c) of the Department of Labor regulations.
(6) For a plan electing multiemployer status under paragraph (c) of
section 2--
(i) The information described in paragraph (d)(4) of this section
for the first plan year ending after August 17, 2006 (in addition to
the plan years described in paragraph (d)(4)), or, documentation
showing that there has been a reduction in the intervening period since
the plan years described in paragraph (d)(4) to less than two of the
number of employers required to contribute pursuant to a collective
bargaining agreement;
[[Page 40180]]
(ii) For each of the three plan years ending immediately before the
first plan year for which the plan elects multiemployer status, a list
of all employers that made contributions or were required to make
contributions to the plan and that were also exempt from taxation under
section 501 of the Code, and with respect to each such employer, a copy
of a favorable determination letter issued by the Internal Revenue
Service (``IRS'') approving the organization's exempt status that is
currently effective, an IRS Form 990 or Form 990-EZ (Return of
Organization Exempt from Income Tax) (copy of first page and signed and
dated last page) applicable to each tax year ending with or within the
last three plan years, or a Form LM-2 or LM-3 (Labor Organization
Annual Report) filed with the DOL (copy of signed and dated first page)
applicable to each fiscal year ending with or within the last three
plan years. If the plan sponsor certifies to the safe harbor provision
in clause (iii) of this subparagraph (6), documentation on the tax-
exempt status of employers beyond the safe harbor is not required;
(iii) The amount of the annual contributions in the aggregate that
were made or required to be made by all tax-exempt organizations listed
in paragraph (d)(6)(ii) of this section for each year described in such
paragraph (d)(6)(ii), and the percentage of the contributions made or
required to be made in the aggregate by all tax-exempt organizations to
the total annual contributions to the plan. If at least 85 percent of
all employer contributions for the relevant plan year were made or
required to be made by tax-exempt organizations, submit a written
statement by the plan sponsor to that effect; and
(iv) A plan document, trust instrument, plan amendment, or Plan
Description Form D-1 or Annual Report Form D-2 under the Welfare and
Pension Plans Disclosure Act, from a period in the plan's existence
prior to September 2, 1974 (if this documentation is unavailable, a
plan may submit for PBGC's review documentation from a later date that
provides substantial evidence of the plan's existence before September
2, 1974).
(e) Collective bargaining agreement. For the limited purpose of
this election and these procedures, a collective bargaining agreement
means a written agreement between a bona fide employee representative
and an employer that, expressly or otherwise, provides for or permits
employer contributions to the plan by one or more employers that are
signatory to such agreement, or participation in the plan by one or
more employees of an employer that is signatory to such agreement,
regardless of whether the plan was created, established, or maintained
for such employees by virtue of another document that is not a
collective bargaining agreement.
(f) Additional information. In addition to the information
described in paragraph (d) of this section, PBGC may require the plan
sponsor to submit any other information directly related to these
requirements that PBGC determines it needs to review a notice of
election. Additional information must be submitted within 60 days of
PBGC's request.
(g) Exception for a certain plan. A plan sponsored by an
organization which is described in section 501(c)(5) of the Code and
exempt from tax under section 501(a) of the Code and which was
established in Chicago, Illinois, on August 12, 1881, that files a
notice under these procedures must establish its identity accordingly
and is not required to provide the information described in paragraph
(d)(4)(iii) of this section.
Section 4 PBGC Action on Election
(a) General. PBGC's decision approving or disapproving an election
will be in writing. If PBGC disapproves the election, the decision will
state the reasons for the determination. PBGC will approve the election
based on its determination that a plan has complied with these
procedures based on the plan's information and representations in its
notice of election to PBGC. PBGC may audit a plan to verify any
information or representation made and may revoke its approval if the
plan is unable to verify the representations made or the information
submitted. Consistent with section 4003 of ERISA, plans should maintain
records necessary to verify the representations and information
submitted in support of the election. The Code and ERISA may impose
additional recordkeeping requirements that are under the jurisdiction
of the Internal Revenue Service or the Department of Labor. See section
6001 of the Code and section 107 of ERISA.
(b) Effect of PBGC decision. PBGC approval has no effect on the
rights of private parties nor the authority of other Federal agencies.
However, PBGC has been advised by both the Internal Revenue Service and
the Department of Labor that, for the limited purposes of an election
under section 3(37)(G) of ERISA and section 414(f)(6) of the Code, the
agencies will follow the safe harbor provision under section 4(c).
(c) Safe Harbor (Tax-Exempt Organizations). A plan will be deemed
to comply with the requirement that substantially all of the plan's
employer contributions were made or required to be made by tax-exempt
organizations if the plan certifies that at least 85 percent of all
employer contributions for the relevant plan year were made or required
to be made by employers that were exempt from taxation under section
501 of the Code.
PBGC will review the filing of a plan that is unable to certify to
the safe harbor provision and will approve the election if it
determines that the requirements of section 3(37)(G)(i)(II)(bb) are met
under all the relevant facts and circumstances.
Issued in Washington, DC, on this 18th day of July 2007.
Charles E. F. Millard,
Interim Director, Pension Benefit Guaranty Corporation.
Checklist of Documents and Information
I. Name of plan
Plan number
Plan EIN
Name, address, telephone number of plan administrator and
representative (if any)
First PY for which the plan is electing multiemployer status
II. For each of 3 PYs ending before first PY that plan elects
multiemployer status:
Trust agreement (one copy if same for 3 years)
Plan document (one copy if same for 3 years)
Summary plan description (one copy if same for 3 years)
Plan amendments
Name and EIN of each employer required to contribute to
plan
Information whether trades or businesses required to
contribute to plan are under common control
Copies of collective bargaining agreements for 3
largest contributing employers (in amount of contributions)
III. For plans electing under section 2(b) of the procedures:
Information in II is required for each of 3 PYs ending
before 8-17-2006 (rather than PYs described in II)
PBGC approval of election to stay a single-employer
plan under ERISA section 3(37)(E), or copy of amendment, evidence of
timeliness, and certification that election was approved
Best available evidence that before 9-2-74, plan had
more than 1 contributing employer under collective bargaining
agreements
If plan established after 9-2-74, best available
evidence that plan had more than 1 contributing employer under
collective bargaining agreements and compliance with section 2510.3-
37(c) of DOL regulations
IV. For plans electing under section 2(c) of the procedures:
[[Page 40181]]
Information in II is required for PY ending after 8-17-
2006 (or, evidence of a reduction in number of employers to less
than two since the PYs described in II), in addition to PYs
described in II
For PYs described in II, list contributing employers
exempt under section 501
For employers listed above, evidence of exempt status--
IRS approval letter; IRS Form 990 or Form 990-EZ (first page and
signed and dated last page only); copy of LM-2 or LM-3 (signed and
dated first page only)
For PYs described in II, aggregate contributions by
employers listed above, and percentage of the total annual
contributions to plan
If percentage above at least 85%, written statement by
plan administrator
Plan document, trust instrument, plan amendment, Plan
Description Form D-1, or Annual Report Form D-2 from period before
9-2-74, or if unavailable, documentation from later date providing
substantial evidence of plan's existence before 9-2-74
[FR Doc. E7-14247 Filed 7-20-07; 8:45 am]
BILLING CODE 7709-01-P
