80 FR 36366 - Pendency of Request for Exemption From the Bond/Escrow Requirement Relating to the Sale of Assets by an Employer Who Contributes to a Multiemployer Plan; Harrington Air Systems, LLC and J.C. Cannistraro, LLC

PENSION BENEFIT GUARANTY CORPORATION

Federal Register Volume 80, Issue 121 (June 24, 2015)

This notice advises interested persons that the Pension Benefit Guaranty Corporation (``PBGC'') has received a request from Harrington Air Systems, LLC, and its sister company J.C. Cannistraro, LLC, for an exemption from the bond/escrow requirement of section 4204(a)(1) of the Employee Retirement Income Security Act of 1974, as amended, with respect to the Sheet Metal Workers National Pension Fund. Section 4204(a)(1) provides that the sale of assets by an employer that contributes to a multiemployer pension plan will not constitute a complete or partial withdrawal from the plan if certain conditions are met. One of these conditions is that the purchaser posts a bond or deposits money in escrow for the five-plan-year period beginning after the sale. PBGC is authorized to grant individual and class exemptions from this requirement. Before granting an exemption PBGC is required to give interested persons an opportunity to comment on the exemption request. The purpose of this notice is to advise interested persons of the exemption request and solicit their views on it.

[Federal Register Volume 80, Number 121 (Wednesday, June 24, 2015)]
[Notices]
[Pages 36366-36367]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-15415]


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PENSION BENEFIT GUARANTY CORPORATION


Pendency of Request for Exemption From the Bond/Escrow 
Requirement Relating to the Sale of Assets by an Employer Who 
Contributes to a Multiemployer Plan; Harrington Air Systems, LLC and 
J.C. Cannistraro, LLC

AGENCY: Pension Benefit Guaranty Corporation.

ACTION: Notice of pendency of request.

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SUMMARY: This notice advises interested persons that the Pension 
Benefit Guaranty Corporation (``PBGC'') has received a request from 
Harrington Air Systems, LLC, and its sister company J.C. Cannistraro, 
LLC, for an exemption from the bond/escrow requirement of section 
4204(a)(1) of the Employee Retirement Income Security Act of 1974, as 
amended, with respect to the Sheet Metal Workers National Pension Fund. 
Section 4204(a)(1) provides that the sale of assets by an employer that 
contributes to a multiemployer pension plan will not constitute a 
complete or partial withdrawal from the plan if certain conditions are 
met. One of these conditions is that the purchaser posts a bond or 
deposits money in escrow for the five-plan-year period beginning after 
the sale. PBGC is authorized to grant individual and class exemptions 
from this requirement. Before granting an exemption PBGC is required to 
give interested persons an opportunity to comment on the exemption 
request. The purpose of this notice is to advise interested persons of 
the exemption request and solicit their views on it.

DATES: Comments must be received on or before August 10, 2015.

ADDRESSES: Comments may be submitted by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the Web site instructions for submitting comments.
     Email: [email protected].
     Fax: 202-326-4224.
     Mail or Hand Delivery: Regulatory Affairs Group, Office of 
the General Counsel, Pension Benefit Guaranty Corporation, 1200 K 
Street NW., Washington, DC 20005-4026.
    Comments received, including personal information provided, will be 
posted to www.pbgc.gov. Copies of comments and non-confidential 
portions of the request may be obtained by writing to Disclosure 
Division, Office of the General Counsel, Pension Benefit Guaranty 
Corporation, 1200 K Street NW., Washington, DC 20005-4026 or calling 
202-326-4040 during normal business hours. (TTY and TDD users may call 
the Federal relay service toll-free at 1-800-877-8339 and ask to be 
connected to 202-326-4040.)

FOR FURTHER INFORMATION CONTACT: Bruce Perlin ([email protected]), 
202-326-4020, ext. 6818 or Jon Chatalian ([email protected]), ext. 
6757, Office of the Chief Counsel, Suite 340, 1200 K Street NW., 
Washington, DC 20005-4026; (TTY/TDD users may call the Federal relay 
service toll-free at 1-800-877-8339 and ask to be connected to 202-326-
4020.)

SUPPLEMENTARY INFORMATION:

Background

    Section 4204 of the Employee Retirement Income Security Act of 
1974, as amended by the Multiemployer Pension Plan Amendments Act of 
1980 (``ERISA'' or ``the Act''), provides that a bona fide arm's-length 
sale of assets of a contributing employer to an unrelated party will 
not be considered a withdrawal if three conditions are met. These 
conditions, enumerated in section 4204(a)(1)(A)-(C), are that--
    (A) The purchaser has an obligation to contribute to the plan with 
respect to the operations for substantially the same number of 
contributions base units for which the seller was obligated to 
contribute;
    (B) The purchaser obtains a bond or places an amount in escrow, for 
a period of five plan years after the sale, equal to the greater of the 
seller's average required annual contribution to the plan for the three 
plan years preceding the year in which the sale occurred or the 
seller's required annual contribution for the plan year preceding the 
year in which the sale occurred; and
    (C) The contract of sale provides that if the purchaser withdraws 
from the plan within the first five plan years beginning after the sale 
and fails to pay any of its liability to the plan, the seller shall be 
secondarily liable for the liability it (the seller) would have had but 
for section 4204.
    The bond or escrow described above would be paid to the plan if the 
purchaser withdraws from the plan or fails to make any required 
contributions to the plan within the first five plan years beginning 
after the sale.
    Additionally, section 4204(b)(1) provides that if a sale of assets 
is covered by section 4204, the purchaser assumes by operation of law 
the contribution record of the seller for the plan year in which the 
sale occurred and the preceding four plan years.
    Section 4204(c) of ERISA authorizes PBGC to grant individual or 
class variances or exemptions from the purchaser's bond/escrow 
requirement of section 4204(a)(1)(B) when warranted. The legislative 
history of section 4204 indicates a Congressional intent that the sales 
rules be administered in a manner that assures protection of the plan 
with the least practicable intrusion into normal business transactions. 
Senate Committee on Labor and Human Resources, 96th Cong., 2nd Sess., 
S.1076, The Multiemployer Pension Plan Amendments Act of 1980: Summary 
and Analysis of Considerations 16 (Comm. Print, April 1980); 128 Cong. 
Rec. S10117 (July 29, 1980). The granting of an exemption or variance 
from the bond/escrow requirement does not constitute a finding by PBGC 
that a particular transaction satisfies the other requirements of 
section 4204(a)(1).
    Under the PBGC's regulation on variances for sales of assets (29 
CFR part 4204), a request for a variance or waiver of the bond/escrow 
requirement under any of the tests established in the regulation 
(Sec. Sec.  4204.12-4204.13) is to be made by the parties to the sale 
to the plan in question. PBGC will consider a waiver request by a 
purchaser or seller only if the transaction does not satisfy the 
regulatory tests or the parties decline to provide the plan financial 
information necessary to show satisfaction of one of the regulatory 
tests because it is privileged or confidential financial information 
within the meaning of 5 U.S.C. 552(b)(4) (the Freedom of Information 
Act).
    Under Sec.  4204.22 of the regulation, the PBGC shall approve a 
request for a variance or exemption if it determines that approval of 
the request is warranted, in that it--
    (1) Would more effectively or equitably carry out the purposes of 
Title IV of the Act; and
    (2) Would not significantly increase the risk of financial loss to 
the plan.

[[Page 36367]]

    Section 4204(c) of ERISA and Sec.  4204.22(b) of the regulation 
require PBGC to publish a notice of the pendency of a request for a 
variance or exemption in the Federal Register, and to provide 
interested parties with an opportunity to comment on the proposed 
variance or exemption.

The Request

    The PBGC has received a request from Harrington Air Systems, LLC 
(``HAS'') and its sister company J.C. Cannistraro, LLC (``JCC'') 
(collectively, ``Cannistraro'' or the ``Buyer'') for an exemption from 
the bond/escrow requirement of Sec.  4204(a)(1)(B) with respect to the 
Sheet Metal Workers National Pension Fund (the ``Fund'') in connection 
with the purchase of most of the assets of Harrington Brothers 
Corporation (``HBC'' or the ``Seller'') on February 28, 2014. HAS is an 
entity set up by JCC in order to effectuate the purchase of HBC's 
assets. In the request, the Buyer represents that HAS and JCC are 
businesses under common control pursuant to 26 CFR 1.414(c)-2 and 
therefore treated as one employer under ERISA. Additionally, the Buyer 
represents, among other things, that:
    1. Under the terms of the asset purchase agreement, the Buyer paid 
the Seller approximately $5.1 million in the form of an unsecured 
promissory note that may be adjusted post-closing based on the 
performance of certain construction contracts in place at the time of 
the transaction.
    2. The Buyer is obligated to contribute to the Fund for the 
purchased operations for substantially the same contribution base units 
for which the Seller had an obligation to contribute.
    3. The Seller has agreed to be secondarily liable for any 
withdrawal liability it would have had with regard to the sold 
operations (if not for Sec.  4204) should the Buyer withdraw from the 
Fund within the five plan years following the sale and fail to pay 
withdrawal liability.
    4. The estimated amount of unfunded vested benefits allocable to 
the seller with respect to the operations sold is about $23.5 million.
    5. The amount of the bond/escrow required under Sec.  4204(a)(1)(B) 
is $1.68 million.
    6. After the close of the transaction, the Buyer requested that the 
trustees of the Fund waive the bond/escrow requirements of ERISA Sec.  
4204. By its counsel, the Fund denied the request on the grounds that 
the Buyer had not satisfied the income or asset tests under PBGC's 
regulations for an exemption from the bond/escrow requirement of Sec.  
4204(a)(1)(B).
    7. The Fund determined that to receive a waiver of the bond/escrow 
requirement under the net income test of 29 CFR 4204.13(a)(1), the 
average net income needed for the three-year period prior to the 
transaction should have been $400,000 greater than the amount reported.
    8. The Buyer asserts that the three-year average net income of JCC 
was lowered due to an ``aberrantly poor year'' in the construction 
industry in Massachusetts in 2011. The Buyer states that JCC's average 
net income for the years between 2011-2014 was approximately $1 million 
more than what was required to meet the net income test under 29 CFR 
4204.13(a)(1), and that its net income for the 3 years between 2012-
2014 was approximately $1.5 million more than what was required.
    9. The Buyer further asserts that, in denying the Buyer's request 
for a waiver, the Fund looked only at the average net income of JCC. It 
contends that aggregating the net incomes of JCC and HAS, two 
businesses under common control under 26 CFR 1.414(c)-2, shows that 
there ``can be no serious argument that a waiver will create risk for 
the Fund, let alone substantial risk.'' HAS's anticipated net income 
for 2014 is approximately $300,000.
    10. The Buyer's request additionally states that a variance of the 
bond/escrow requirement in this instance furthers the purposes of Title 
IV of ERISA because Congress, in enacting Title IV, sought to minimize 
intrusions into normal business operations while protecting plans. The 
Buyer asserts that HBC had previously been a ``struggling enterprise'' 
and that the transaction has ``resulted in a more stable and 
financially secure contributing employer to the Fund.''

Comments

    All interested persons are invited to submit written comments on 
the pending exemption request. All comments will be made part of the 
administrative record.

    Issued in Washington, DC, on this 16th day of June, 2015.
Alice C. Maroni,
Acting Director, Pension Benefit Guaranty Corporation.
[FR Doc. 2015-15415 Filed 6-23-15; 8:45 am]
 BILLING CODE 7709-02-P