Background

American Rescue Plan Act (ARPA) established the SFA program and instructed the PBGC to issue regulations to implement that program, including guidance on application procedures. ARPA created a priority period that runs through March 11, 2023 (two years after its enactment) during which eligible plans that meet certain criteria may apply for SFA. The priority period ends after that date.

The PBGC issued a final rule on SFA providing, among other things, an application processing system. The final rule established six priority groups with filing dates for plans in each group. Plans not in a priority group are non-priority group plans. The PBGC estimates there are roughly 130 such plans. (We discussed the final rule in our July 7, 2022 insight, “PBGC Final Rule on Multiemployer SFA: Solvency Through 2051.”)

To review SFA applications, the PBGC also established an electronic application filing portal (e-portal) to meter applications. The PBGC may temporarily close the e-portal when it reaches its capacity.

E-portal closure

According to the application information and FAQs, PBGC’s e-portal will close temporarily at 11:59 pm EST on March 10, 2023. The PBGC anticipates re-opening the e-portal by April 1, 2023.

Lock-in applications are not filed through the e-portal and may be filed at any time. No other applications, including supplemented applications, may be filed while the e-portal is closed. There are exceptions for emergency filings and certain withdrawn and revised applications.

PBGC to establish a waiting list for non-priority plans

Starting 9:00 am EDT on March 13, 2023, the PBGC will accept requests to be placed on a waiting list. For plans that seek to be on the waiting list, an authorized plan representative must email the PBGC at SFA@pbgc.gov (and may provide a copy to other plan representatives) to provide the following information:

• Plan name
• Employer Identification Number and Plan Number
• Contact information for the authorized plan representative (e.g., accountant, actuary, attorney, plan administrator or trustee)
• A statement requesting that the plan be placed on the waiting list

A plan may request to be placed on the waiting list regardless of whether it has filed a lock-in application.

Plans that have emailed the PBGC will be placed on the waiting list in chronological order based on the time and date of the PBGC’s receipt of the email. The waiting list will be published on the PBGC’s website on March 17, 2023 and updated each Friday thereafter.

Waiting list plans, when notified, have seven days to file a complete application

The PBGC will notify plans that are at the top of the waiting list that the e-portal will open and only those plans will be permitted to file. Once notified, the plan has seven calendar days, starting on the date the PBGC re-opens the e-portal, to submit a complete application. If still at capacity, the PBGC will temporarily close the e-portal when the allowed applications have been received, or, if later, the end of the seventh calendar day, and will update the waiting list.

If a complete application is not submitted within the permitted timeframe, the plan’s position on the waiting list is forfeited and the plan is required to submit a new request to be placed on the waiting list.

Priority group status not recognized after March 11, 2023 except for emergency filings

The PBGC will not recognize priority group status for purposes of the waiting list except for insolvent plans (priority group 1) and plans that are expected to be insolvent within one year of the application or have a MPRA suspension in place (priority group 2). Such plans may submit an emergency filing even if the e-portal is closed. Emergency filers must email the request for an emergency application to the PBGC at multiemployerprogram@pbgc.gov and provide supporting details regarding the emergency nature of the filing.

Certain withdrawn and revised applications are not subject to the waiting list

Plans that filed complete applications that are under review as of March 11, 2023, and that subsequently withdraw the application after that date, may submit no more than two revised applications after March 11, 2023, without being subject to the waiting list process. Applications must be emailed to multiemployerprogram@pbgc.gov. However, in the event that the plan submits more than two revised applications after March 11, 2023 or if the plan submits revised applications following a denial after that date, the plan is subject to the waiting list process.

Lock-in applications

Lock-in applications, which secure the plan’s measurement date and other base data, may be filed at any time (regardless of whether the e-portal is open or closed) in advance of submitting a complete application. Lock-in applications must be emailed to multiemployerprogram@pbgc.gov. A lock-in application does not secure a plan’s place on the waiting list and a plan must separately request to be on the waiting list.