[Federal Register: July 23, 2007 (Volume 72, Number 140)]
[Notices]
[Page 40176-40181]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23jy07-80]
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PENSION BENEFIT GUARANTY CORPORATION
Election of Multiemployer Plan Status
AGENCY: Pension Benefit Guaranty Corporation.
ACTION: Notice.
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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, http://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.
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\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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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