On April 25th, 2023, the U.S. Department of Labor’s Employee Benefits Security Administration (DOL’s EBSA) issued Field Assistance Bulletin 2023-01 which answers frequently asked questions regarding the annual funding notice requirements for multiemployer pension plan that have received special financial assistance under the American Rescue Plan Act signed into law by President Biden on March 11, 2021.
Below are questions and answers to commonly requested inquiries by the Department of Labor regarding special financial assistance. The DOL’s complete answers to these questions can be found in the EBSA’s Field Assistance Bulletin No. 2023-01 at: https://www.dol.gov/agencies/ebsa/employers-and-advisers/guidance/field-assistance-bulletins/2023-01
- Whether special financial assistance takes into account funded percentages and actuarial value of plan assets; Yes
- Whether a plan’s receipt of a special financial assistance triggers the “material effect” explanation under 101(f)(2)(B) (vii) of ERISA; Yes
- For which plan year should the “material effect” explanation be provided; The plan year in which the plan received special financial assistance.
- What information should be included in the explanation when a plan’s receipt of a special financial assistance triggers the “material effect”; It must include the amount of the special financial assistance and the date it was paid to the plan, as well as the amount and date of special financial assistance received under both the initial and supplemental applications separately along with a statement explaining why the plan is receiving supplemental special financial assistance.
- What effect does a plan’s receipt of special financial assistance have on an administrator’s obligation relating to the statement required by 19 CFT 2520.101-5(B)(6) regarding plans in endangered, critical, or critical and declining status; Under federal pension law, the Plan is deemed to be in critical status beginning with plan year in which the plan first received special financial assistance with the plan year ending in 2051.
- Whether a plan’s receipt of special financial assistance affects the general description of the plan’s investment policy required by 29 CFR 2501-5(b)(5)(iii); Yes
- Whether the plan administrator has to separately identify the assets in the special financial assistance account to satisfy requirements under 29 CFR 2520.101-5(b)(5)(ii); No. The regulation requires a statement setting forth the asset allocation of investments under the plan (expressed as percentages of total assets) as of the end of the notice year.
- Whether plans that have received special financial assistance have to include a summary of rules governing insolvency, including the limitations on benefit payments in their annual funding notice; Yes
- Whether an insolvent plan that is eligible for but has not applied for special financial assistance can modify the model language in Appendix B of 29 CFR 2520.101-5 which summarizes the rules governing insolvent plans to inform participants that the plan is eligible for special financial assistance; Yes and
- Whether the annual funding notice of a plan that has received special financial assistance can include a statement describing the prohibition against such future suspensions? Yes
In addition to complete answers to the above questions, the Field Assistance Bulletin also provides background information regarding special financial assistance, and the DOL’s acknowledgement that other issues may arise for which plan administrators require guidance. With that said, the DOL noted that it will treat compliance with the guidance provided in its Field Assistance Bulletin as constituting a “reasonable, good faith interpretation of the annual funding notice disclosure requirements” under section 101(f) of ERISA and 29 CFR 2520.101-5 with respect to the issues presented in its Field Assistance Bulletin.
If you have any questions regarding special financial assistance and/or this latest Field Assistance Bulletin not answered by the Field Assistance Bulletin, contact Amalgamated Employee Benefits Administrators at: 914.367.5000.