Background

On July 6, 2022, PBGC released a final rule (published in the July 8, 2022 Federal Register) implementing the SFA program as provided under the American Rescue Plan Act of 2021 (ARPA). (We discussed ARPA in our March 11, 2021 insight, “The American Rescue Plan and Multiemployer Pension Relief,” and the final rule on the SFA program in our July 7, 2022 insight, “PBGC Final Rule on Multiemployer SFA: Solvency Through 2051.”)

The final rule includes conditions on withdrawal liability for SFA-recipient plans that are intended to preserve SFA for the payment of plan benefits and expenses without subsidizing employer withdrawals. These conditions include the use of mass withdrawal interest rates generally until the later of 10 years or exhaustion of SFA assets and phased recognition of SFA assets.

The new exception

In its latest final rule, the PBGC recognizes that for a small number of SFA-eligible plans with “unique facts and circumstances,” the conditions on withdrawal liability could have the reverse effect of lowering withdrawal liability assessments and increasing the number of employer withdrawals. Plans for which this may occur include those that have a PBGC-approved alternative allocation method for determining withdrawal liability.

The exception process

The final rule describes the process for requesting an exception from the withdrawal liability conditions, including required demonstrations that the exception:

• Reduces the risk of loss to plan participants
• Reduces the risk of loss to the PBGC
• Does not increase expected employer withdrawals
• Does not increase the amount of SFA

The exception process is separate from the SFA application process, and a request for exception must be filed before the plan’s initial SFA application or before a revised SFA application is filed. The request for an exception must include actuarial, financial and other plan information, including certifications by the plan’s actuary.

The PBGC encourages plan sponsors to engage in a pre-submission consultation with the PBGC regarding any request for exception.