[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5754 Introduced in House (IH)]







110th CONGRESS
  2d Session
                                H. R. 5754

To amend the Employee Retirement Income Security Act of 1974 and title 
   11, United State Code, to provide necessary reforms for employee 
                         pension benefit plans.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             April 9, 2008

Mr. Visclosky introduced the following bill; which was referred to the 
 Committee on Education and Labor, and in addition to the Committee on 
   the Judiciary, for a period to be subsequently determined by the 
  Speaker, in each case for consideration of such provisions as fall 
           within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
To amend the Employee Retirement Income Security Act of 1974 and title 
   11, United State Code, to provide necessary reforms for employee 
                         pension benefit plans.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Employees' Pension Security Act of 
2008''.

             TITLE I--TRUSTEESHIP OF SINGLE-EMPLOYER PLANS

SEC. 101. REQUIREMENTS RELATING TO TRUSTEESHIP OF SINGLE-EMPLOYER 
              PLANS.

    (a) In General.--Section 403(a) of the Employee Retirement Income 
Security Act of 1974 (29 U.S.C. 1103(a)) is amended--
            (1) by redesignating paragraphs (1) and (2) as 
        subparagraphs (A) and (B), respectively;
            (2) by inserting ``(1)'' after ``(a)''; and
            (3) by adding at the end the following new paragraph:
    ``(2)(A) The assets of a pension plan which is a single-employer 
plan shall be held in trust by a joint board of trustees, which shall 
consist of two or more trustees representing on an equal basis the 
interests of the employer or employers maintaining the plan and the 
interests of the participants and their beneficiaries.
    ``(B)(i) Except as provided in clause (ii), in any case in which 
the plan is maintained pursuant to one or more collective bargaining 
agreements between one or more employee organizations and one or more 
employers, the trustees representing the interests of the participants 
and their beneficiaries pursuant to subparagraph (A) shall be 
designated by such employee organizations.
    ``(ii) Clause (i) shall not apply with respect to a plan described 
in such clause if the employee organization (or all employee 
organizations, if more than one) referred to in such clause file with 
the Secretary, in such form and manner as shall be prescribed in 
regulations of the Secretary, a written waiver of their rights under 
clause (i).
    ``(iii) In any case in which clause (i) does not apply with respect 
to a pension plan which is a single-employer plan because the plan is 
not described in clause (i) or because of a waiver filed pursuant to 
clause (ii), the trustee or trustees representing the interests of the 
participants and their beneficiaries shall consist of one or more 
participants under the plan elected to serve as such in accordance with 
this clause. The Secretary shall provide by regulation for a secret 
ballot of the participants under the plan for purposes of such 
election, and for certification of the results thereof to the 
participants (and any employee organization referred to in clause (ii)) 
and to the employer.''.
    (b) Conforming Amendments.--Section 403(a)(1) of such Act (as 
redesignated under subsection (a)) is amended--
            (1) by striking ``Such trustee or trustees'' and inserting 
        ``Except as provided in paragraph (2), such trustee or 
        trustees'';
            (2) by striking ``fiduciary, and upon acceptance'' and 
        inserting ``fiduciary. Upon acceptance''; and
            (3) in subparagraph (A) (as so redesignated), by striking 
        ``the plan'' the first place it appears and inserting ``in the 
        case of a plan other than a pension plan which is a single-
        employer plan, the plan''.

SEC. 102. EFFECTIVE DATE.

    The amendments made by this title shall apply with respect to plan 
years beginning after 180 days after the date of the enactment of this 
Act. The Secretary of Labor shall prescribe the initial regulations 
necessary to carry out the provisions of such amendments not later than 
90 days after the date of the enactment of this Act.

                    TITLE II--INVESTMENT INFORMATION

SEC. 201. PROVISION TO PARTICIPANTS AND BENEFICIARIES OF MATERIAL 
              INVESTMENT INFORMATION IN ACCURATE FORM.

    (a) In General.--Section 404(c) of the Employee Retirement Income 
Security Act of 1974 (29 U.S.C. 1104(c)) is amended by adding at the 
end the following new paragraph:
            ``(6) Provision of accurate material investment advice.--
        The plan sponsor and plan administrator of a pension plan 
        described in paragraph (1) shall have a fiduciary duty to 
        ensure that each participant and beneficiary under the plan, in 
        connection with the investment by the participant or 
        beneficiary of plan assets in the exercise of his or her 
        control over assets in his account, is provided with all 
        material investment information regarding investment of such 
        assets to the extent that the provision of such information is 
        generally required to be disclosed by the plan sponsor to 
        investors in connection with such an investment under 
        applicable securities laws. The provision by the plan sponsor 
        or plan administrator of any misleading investment information 
        shall be treated as a violation of this paragraph.''.
    (b) Enforcement.--
            (1) In general.--Section 502(c) of such Act (29 U.S.C. 
        1132(c)) is amended--
                    (A) by redesignating paragraph (9) as paragraph 
                (10); and
                    (B) by inserting after paragraph (8) the following 
                new paragraph:
    ``(9) The Secretary may assess a civil penalty against any person 
of up to $1,000 a day from the date of the person's failure or refusal 
to comply with the requirements of section 404(c)(6) until such failure 
or refusal is corrected.''.
            (2) Conforming amendment.--Section 502(a)(6) of such Act 
        (29 U.S.C. 1132(a)(6)) is amended by striking ``(7), or (8)'' 
        and inserting ``(7), (8), or (9)''.

SEC. 202. EFFECTIVE DATE OF TITLE.

    The amendments made by this title shall apply with respect to 
investments made on or after the date of the enactment of this Act.

TITLE III--STRENGTHENED PROTECTIONS AGAINST ABUSE OF THE BANKRUPTCY AND 
                          TERMINATION PROCESS

SEC. 301. ADDITIONAL REQUIREMENTS FOR TERMINATION.

    (a) Additional Requirements for Distress Termination.--Section 
4041(c)(2) of the Employee Retirement Income Security Act of 1974 (29 
U.S.C. 1341(c)(2)) is amended by adding at the end the following:
                    ``(E) Additional requirements.--Notwithstanding any 
                other provision of this section, unless the corporation 
                or the court, in the case of a distress termination 
                pursuant to subparagraph (B)(ii), has determined that 
                reasonable efforts to consider available alternatives 
                to termination (including, but not limited to, 
                alternatives described in section 4042(c)(4)) have been 
                undertaken by such person (and, in the case of a plan 
                maintained pursuant to a collective bargaining 
                agreement, have been undertaken by the bargaining 
                parties in good faith bargaining), the plan may not be 
                terminated. A participant or beneficiary of the plan or 
                an employee organization representing such participants 
                or beneficiaries may bring an action in the appropriate 
                court to challenge such determination by the 
                corporation and seek equitable relief or must be 
                afforded an opportunity to be heard by the appropriate 
                court if a court is making such determination.''.
    (b) Additional Requirements for Court Decrees.--Section 4042(c)(1) 
of such Act (29 U.S.C. 1342(c)(1)) is amended--
            (1) by inserting after the first sentence the following new 
        sentences: ``The court may not enter such a decree unless that 
        court has found that reasonable efforts to consider available 
        alternatives to termination (including, but not limited to, 
        alternatives described in paragraph (4) have been undertaken by 
        the plan sponsor (and, in the case of a plan maintained 
        pursuant to a collective bargaining agreement, have been 
        undertaken by the bargaining parties in good faith bargaining). 
        There is a presumption that a plan need not be terminated if 
        the plan sponsor can continue in business, outside a case under 
        title 11, United States Code (or under any similar law of a 
        State or a political subdivision of a State) in which 
        reorganization is sought, without terminating the plan.''; and
            (2) in the sentence following the sentences inserted by 
        paragraph (1), by striking ``the preceding sentence'' and 
        inserting ``the first sentence of this paragraph,''.
    (c) Right To Intervene To Challenge Court Decree.--Section 4042(c) 
of such Act (as amended by subsection (b)) is further amended by 
inserting after the fourth sentence the following new sentence: ``If 
any party consisting of the plan sponsor, a plan participant, or (in 
the case of a plan maintained pursuant to a collective bargaining 
agreement) the employee organization representing plan participants for 
purposes of collective bargaining disagrees with any such determination 
by the corporation, such party may intervene in the proceeding to 
challenge the determinations of the corporation.''.
    (d) Consideration of Alternatives by Corporation and Plan 
Sponsor.--Section 4042(c) of such Act (as amended by the preceding 
provisions of this section) is further amended by adding after the 
seventh sentence the following: ``The corporation and the plan 
administrator may proceed with such an agreement only if they have made 
reasonable efforts to consider available alternatives to termination 
(including, but not limited to, alternatives described in paragraph (4) 
of this subsection) and the plan participants and beneficiaries have 
been provided with at least 60 days notice before such agreement is 
given effect. During such 60-day period, a participant or beneficiary 
of the plan or an employee organization representing such participants 
or beneficiaries may bring an action in the appropriate court to seek 
appropriate equitable relief if such reasonable efforts have not been 
made.''.
    (e) Efforts by the Corporation at Consultation With Parties.--
Section 4042(c) of such Act is amended by adding at the end the 
following new paragraph:
            ``(4) Consultation regarding reasonable available 
        alternatives to termination.--
                    ``(A) In general.--Prior to making any 
                determination referred to in the preceding provisions 
                of this subsection, the corporation shall consult with 
                the plan participants and (in the case of a plan 
                maintained pursuant to a collective bargaining 
                agreement) the employee organization representing plan 
                participants for purposes of collective bargaining to 
                determine whether there are any reasonable available 
                alternatives to termination (including, but not limited 
                to, alternatives described subparagraph (B).
                    ``(B) Reasonable alternatives to termination.--The 
                reasonable alternatives to termination referred to in 
                subparagraph (A) consist of measures which are in the 
                best interest of plan participants and which include 
                (but are not limited to) the following:
                            ``(i) Financing or loans sought by any 
                        member of the plan sponsor's controlled group, 
                        with or without assistance from the 
                        corporation, in order to obtain plan financing, 
                        including back-up guarantees to any such 
                        financing which the corporation is hereby 
                        authorized to provide for such purpose.
                            ``(ii) New plan structures agreed to by the 
                        parties, such as transfer of plan liabilities 
                        to multiemployer plans, new benefit formulas 
                        for new hires or non-vested participants, or 
                        other plan restructuring alternatives agreed to 
                        by the parties.
                            ``(iii) Reinsurance which the corporation 
                        is hereby authorized to obtain for the plan.
                            ``(iv) An agreement by the parties 
                        authorizing alternative funding schedules, 
                        approved by the corporation, which would modify 
                        plan funding, subject to the minimum funding 
                        requirements for the plan under part 3 of 
                        subtitle B of title I.
                            ``(v) Purchase by the plan sponsor of an 
                        annuity contract to cover liabilities of the 
                        plan, which the corporation is hereby 
                        authorized to guarantee as necessary to secure 
                        such a contract.''.
    (f) Notice of Right To Challenge Determinations Relating to Plan 
Termination.--
            (1) Procedure for standard terminations.--Section 
        4041(b)(2)(B) of such Act (29 U.S.C. 1341(b)(2)(B)) is amended 
        in clause (i) by striking ``and'' at the end, in clause (ii)(V) 
        by striking ``require.'' and inserting ``require, and'', and by 
        inserting after clause (ii) the following new clause:
                            ``(iii) the right of participants and 
                        beneficiaries to challenge determinations under 
                        this section.''.
            (2) Termination proceedings for distress terminations and 
        terminations commenced by the pbgc.--Section 4042(a) of such 
        Act (29 U.S.C. 1342(a)) is amended by adding at the end the 
        following new sentence: ``Prior to commencing proceedings under 
        this section with respect to any plan, the corporation shall 
        provide notice to plan participants and beneficiaries of the 
        right to challenge determinations under this section, written 
        in a manner likely to be understood by the participant or 
        beneficiary.''.

SEC. 302. EFFECTIVE DATE OF TITLE.

    The amendments made by this title shall apply with respect to any 
plans undergoing termination proceedings pursuant to section 4041 or 
4042 of the Employee Retirement Income Security Act of 1974 which are 
pending on or after the date of the enactment of this Act.

   TITLE IV--RECOVERY OF BENEFIT LIABILITIES WHICH ARE NOT GUARANTEED

SEC. 401. AMENDMENT TO TITLE 11 OF THE UNITED STATES CODE.

    Section 507(a)(1) of title 11, United States Code, is amended by 
adding at the end the following:
                    ``(D) Subject to subparagraphs (A), (B), and (C), 
                allowed unsecured claims for benefit liabilities to 
                participants and beneficiaries under a single-employer 
                plan (as defined in section 4001(a)(15) of the Employee 
                Retirement Income Security Act of 1974) in connection 
                with the termination of the plan, in excess of the 
                benefits payable to the participants and beneficiaries 
                by the Pension Benefit Guaranty Corporation under 
                section 4022 of the Employee Retirement Income Security 
                Act of 1974 in connection with such termination.''.

SEC. 402. EFFECTIVE DATE; APPLICATION OF AMENDMENT.

    (a) Effective Date.--Except as provided in subsection (b), section 
401 and the amendment made by such section shall take effect on the 
date of the enactment of this Act.
    (b) Application of Amendment.--The amendment made by section 401 
shall not apply with respect to cases commenced under title 11 of the 
United States Code before the date of the enactment of this Act.
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