[Congressional Record Volume 167, Number 191 (Monday, November 1, 2021)]
[Senate]
[Pages S7561-S7563]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 4118. Mr. MANCHIN submitted an amendment intended to be proposed
to amendment SA 3867 submitted by Mr. Reed and intended to be proposed
to the bill H.R. 4350, to authorize appropriations for fiscal year 2022
for military activities of the Department of
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Defense, for military construction, and for defense activities of the
Department of Energy, to prescribe military personnel strengths for
such fiscal year, and for other purposes; which was ordered to lie on
the table; as follows:
At the end of subtitle G of title X, add the following:
SEC. 1064. PROTECTIONS FOR PENSIONS IN BANKRUPTCY
PROCEEDINGS.
(a) Short Title.--This section may be cited as the ``Stop
Looting American Pensions Act of 2021'' or the ``SLAP Act''.
(b) Amendments to the Employee Retirement Income Security
Act of 1974 and the Internal Revenue Code of 1986.--
(1) Minimum funding standard.--
(A) Amendment to the employee retirement income security
act of 1974.--Section 302(a) of the Employee Retirement
Income Security Act of 1974 (29 U.S.C. 1082(a)) is amended by
adding at the end the following:
``(3) Cases under title 11.--A plan shall continue to be
required to satisfy the minimum funding standard under
paragraph (1) if a case under title 11, United States Code,
is commenced with respect to the employer unless the
Secretary of the Treasury has waived the requirements of this
subsection with respect to the plan under subsection (c).''.
(B) Amendment to the internal revenue code of 1986.--
Section 412(a) of the Internal Revenue Code of 1986 is
amended by adding at the end the following:
``(3) Cases under title 11.--A plan shall continue to be
required to satisfy the minimum funding standard under
paragraph (1) if a case under title 11, United States Code,
is commenced with respect to the employer unless the
Secretary has waived the requirements of this subsection with
respect to the plan under subsection (c).''.
(2) Obligation to contribute.--Section 4212 of the Employee
Retirement Income Security Act of 1974 (29 U.S.C. 1392) is
amended by adding at the end the following:
``(d) A person shall be subject to an obligation to
contribute under this part notwithstanding the commencement
of a case under title 11, United States Code, with respect to
that person.''.
(3) Obligation to pay withdrawal liability.--Section
4220(c) of the Employee Retirement Income Security Act of
1974 (29 U.S.C. 1399(c)) is amended by adding at the end the
following:
``(9) An employer shall be subject to an obligation to make
payments of withdrawal liability under this section
notwithstanding the commencement of a case under title 11,
United States Code, with respect to the employer.''.
(c) Administrative Expenses and Priorities in Bankruptcy
Proceedings.--
(1) Allowance of administrative expenses.--
(A) In general.--Section 503(b) of title 11, United States
Code, is amended--
(i) in paragraph (8)(B), by striking ``and'';
(ii) in paragraph (9), by striking the period at the end
and inserting a semicolon; and
(iii) by adding at the end the following:
``(10) unpaid minimum required contributions, as defined in
section 302(c)(4)(C)(iii)(I) of the Employee Retirement
Income Security Act of 1974 (29 U.S.C. 1082(c)(4)(C)(iii)(I))
and section 4971(c)(4) of the Internal Revenue Code of 1986;
and
``(11) withdrawal liability determined under part 1 of
subtitle E of title IV of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1381 et seq.), including any
accelerated payment of such withdrawal liability under
section 4219(c)(5) of the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1399(c)(5)).''.
(B) Conforming amendment relating to priorities.--Section
507(a)(5) of title 11, United States Code, is amended, in the
matter preceding subparagraph (A), by inserting after
``contributions to an employee benefit plan'' the following:
``, other than for unpaid minimum required contributions, as
defined in section 302(c)(4)(C)(iii)(I) of the Employee
Retirement Income Security Act of 1974 (29 U.S.C.
1082(c)(4)(C)(iii)(I)) and section 4971(c)(4) of the Internal
Revenue Code of 1986''.
(2) Increased wage priority.--Section 507(a) of title 11,
United States Code, is amended--
(A) in paragraph (4), in the matter preceding subparagraph
(A)--
(i) by striking ``$10,000'' and inserting ``$20,000'';
(ii) by striking ``within 180 days''; and
(iii) by striking ``or the date of the cessation of the
debtor's business, whichever occurs first,''; and
(B) in paragraph (5)--
(i) in subparagraph (A)--
(I) by striking ``within 180 days''; and
(II) by striking ``or the date of the cessation of the
debtor's business, whichever occurs first''; and
(ii) by striking subparagraph (B) and inserting the
following:
``(B) for each such plan, to the extent of the number of
employees covered by each such plan, multiplied by
$20,000.''.
(d) Automatic Stay in Bankruptcy Proceedings.--Section
362(b) of title 11, United States Code, is amended--
(1) in paragraph (28), by striking ``and'' at the end;
(2) in paragraph (29), by striking the period at the end
and inserting ``; and''; and
(3) by inserting after paragraph (29) the following:
``(30) under subsection (a) of this section, the
commencement or continuation of an action or proceeding by
the Director of the Pension Benefits Guaranty Corporation to
enforce the minimum standard under section 303(k) of the
Employment Retirement Income Security Act of 1974 (29 U.S.C.
1083(k)).''.
(e) Sales of Property in Bankruptcy Proceedings.--
(1) In general.--Section 363 of title 11, United States
Code, is amended--
(A) in subsection (b)(1), in the matter preceding
subparagraph (A), by striking ``The trustee'' and inserting
``Subject to subsection (q), the trustee'';
(B) in subsection (c)(1), by striking ``If the business''
and inserting ``Subject to subsection (q), if the business'';
and
(C) by adding at the end the following:
``(q)(1) Subject to paragraphs (2) and (3), the trustee may
not sell property of the estate under subsection (b) or (c)
unless the trustee is able to demonstrate that--
``(A) the sale complies with the provisions of this title;
``(B) the sale has been proposed in good faith and not by
any means forbidden by the law;
``(C) any payment made for services or for costs and
expenses in or in connection with the sale is reasonable;
``(D) if, with respect to the case, there is any fee
payable under section 1930 of title 28, the proceeds of the
sale will be used to pay that fee;
``(E) with respect to each class of claims or interests--
``(i) such class has accepted the sale; or
``(ii) such class is not impaired by the sale.
``(2) The trustee, on request of the proponent of the sale,
may sell property of the estate under subsection (b) or (c)
if--
``(A) all of the applicable requirements of paragraph (1)
other than subparagraph (E) are met with respect to a sale of
property; and
``(B) the sale does not discriminate unfairly, and is fair
and equitable, with respect to each class of claims or
interests that is impaired under, and has not accepted, the
sale.
``(3) The trustee may not sell substantially all of the
property of the estate under subsection (b) or (c) during the
60-day period beginning on the date of the filing of the
petition unless the court determines that--
``(A) there is a high likelihood that the value of the
property of the estate will decrease significantly during
that period; and
``(B) the requirements under paragraph (1) have been
satisfied with respect to each sale that would contribute to
substantially all of the property of the estate being
sold.''.
(2) Protection of employee benefits in a sale of assets.--
Section 363(b) of title 11, United States Code, is amended by
adding at the end the following:
``(3) In approving a sale under this subsection, the court
shall consider the extent to which a bidder has offered to
maintain existing jobs, preserve terms and conditions of
employment, and assume or match pension and retiree health
benefit obligations in determining whether an offer
constitutes the highest or best offer for such property.''.
(f) Fraudulent Transfers and Obligations.--Section 548 of
title 11, United States Code, is amended--
(1) in subsection (a)(1), in the matter preceding
subparagraph (A), by striking ``2 years'' and inserting ``6
years''; and
(2) in subsection (b), by striking ``2 years'' and
inserting ``6 years''.
(g) Limitations on Executive Compensation Enhancements.--
Section 503(c) of title 11, United States Code, is amended--
(1) in paragraph (1), in the matter preceding subparagraph
(A)--
(A) by inserting ``, a senior executive officer, or any of
the 20 next most highly compensated employees or
consultants'' after ``an insider'';
(B) by inserting ``or for the payment of performance or
incentive compensation, or a bonus of any kind, or other
financial returns designed to replace or enhance incentive,
stock, or other compensation in effect before the date of the
commencement of the case,'' after ``remain with the debtor's
business,''; and
(C) by inserting ``clear and convincing'' before ``evidence
in the record''; and
(2) by amending paragraph (3) to read as follows:
``(3) other transfers or obligations, to or for the benefit
of insiders, senior executive officers, managers, or
consultants providing services to the debtor, in the absence
of a finding by the court, based upon clear and convincing
evidence, and without deference to the debtor's request for
such payments, that such transfers or obligations are
essential to the survival of the debtor's business or (in the
case of a liquidation of some or all of the debtor's assets)
essential to the orderly liquidation and maximization of
value of the assets of the debtor, in either case, because of
the essential nature of the services provided, and then only
to the extent that the court finds such transfers or
obligations are reasonable compared to individuals holding
comparable positions at comparable companies in the same
industry and not disproportionate in light of economic
concessions by the debtor's nonmanagement workforce during
the case.''.
(h) Applicability.--This section and the amendments made by
this section shall apply with respect to any case that is
commenced on or after the date of enactment of this Act.
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