[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

[[Page S7562]]

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.

[[Page S7563]]

  

                                 ______