PART 4233—PARTITIONS OF ELIGIBLE MULTIEMPLOYER PLANS Authority: 29 U.S.C. 1302(b)(3), 1413. Source: 80 FR 35229, June 19, 2015, unless otherwise noted. § 4233.1 Purpose and scope. The purpose of this part is to prescribe rules governing applications for partition under section 4233 of ERISA, and related notice requirements. § 4233.2 Definitions. The following terms are defined in § 4001.2 of this chapter: ERISA, IRS, multiemployer plan, PBGC, plan, and plan sponsor. In addition, the following terms are defined for purposes of this part: Advocate Application for partition Application for a suspension of benefits Completed application Effective date of partition Financial assistance Insolvent Interested party (1) Each participant in the plan; (2) Each beneficiary of a deceased participant; (3) Each alternate payee under an applicable qualified domestic relations order, as defined in section 206(d)(3) of ERISA; (4) Each employer that has an obligation to contribute under the plan; and (5) Each employee organization that currently has a collective bargaining agreement pursuant to which the plan is maintained. Original plan Partition order Proposed partition Remain solvent Residual benefit Successor plan Successor plan benefit § 4233.3 Application filing requirements. (a) Method of filing. (b) Who may file. (c) Where to file. See [80 FR 35229, June 19, 2015, as amended at 90 FR 39329, Aug. 15, 2025] § 4233.4 Information to be filed. (a) General. (b) Additional information. (2) PBGC may suspend the running of the 270-day review period (described in § 4233.10) pending the submission of any additional information requested by PBGC, or upon the issuance of a conditional determination under § 4233.12(c). (c) Duty to amend and supplement application. [80 FR 35229, June 19, 2015, as amended at 80 FR 79694, Dec. 23, 2015] § 4233.5 Plan information. An application for partition must include the following information with respect to the plan: (a) The name of the plan, Employer Identification Number (EIN), and three-digit Plan Number (PN). (b) The name, address, and telephone number of the plan sponsor and the plan sponsor's duly authorized representative, if any. (c) The most recent trust agreement, including all amendments adopted since the last restatement. (d) The most recent plan document, including all amendments adopted since the last restatement. (e) The most recent summary plan description (SPD), and all summaries of material modification (SMM) issued since the effective date of the most recent SPD. (f) The most recent rehabilitation plan (or funding improvement plan, if applicable), including all subsequent amendments and updates, and the percentage of total contributions received under each schedule of the rehabilitation plan for the most recent plan year available. (g) A copy of the plan's most recent IRS determination letter. (h) A copy of the plan's most recent Form 5500 (Annual Report Form) and all schedules and attachments (including the audited financial statement). (i) A current listing of employers who have an obligation to contribute to the plan, and the approximate number of participants for whom each employer is currently making contributions. (j) A schedule of withdrawal liability payments collected in each of the most recent five plan years. § 4233.6 Partition information. An application for partition must include the following information with respect to the proposed partition: (a) A detailed description of the proposed partition, including the proposed structure, proposed effective date, and any larger integrated transaction of which the proposed partition is a part (including, but not limited to, an application for suspension of benefits under section 305(e)(9)(G), or a merger under section 4231 of ERISA). With respect to coordinated applications for partition and suspension of benefits, proposed effective dates for both transactions must satisfy the requirements of section 305(e)(9)(D)(v) of ERISA. (b) A narrative description of the events that led to the plan sponsor's decision to submit an application for partition (and, if applicable, application for suspension of benefits). (c) A narrative description of significant risks and assumptions relating to the proposed partition and the projections provided in support of the application. (d) If applicable, a copy of the plan sponsor's application for suspension of benefits (including all attachments and exhibits). If the plan sponsor intends to apply for a suspension of benefits with Treasury, but has not yet submitted an application to Treasury, a draft of the application may be filed, which must be supplemented by filing a copy of the completed application within the timeframe established in § 4233.10(d). (e) A detailed description of all measures the plan sponsor has taken (or is taking) to avoid insolvency, and any measures the plan sponsor considered taking but did not take, including the factor(s) the plan sponsor considered in making these determinations. Include all relevant documentation relating to the plan sponsor's determination that it has taken (or is taking) measures to avoid insolvency. (f) A detailed description of the estimated benefit amounts the plan sponsor has determined are necessary to be partitioned for the plan to remain solvent, including the following information: (1) The estimated number of participants and beneficiaries whose benefits (or any portion thereof) would be transferred, including the number of retirees receiving payments (if any), terminated vested participants (if any), and active participants (if any). (2) Supporting data, calculations, assumptions, and a description of the methodology used to determine the estimated benefit amounts. (3) If applicable, a description of any classifications or specific group(s) of participants and beneficiaries whose benefits (or any portion thereof) the plan sponsor proposes to transfer, and the plan sponsor's rationale or basis for selecting those classifications or groups. (g) A copy of the draft notice of application for partition described in § 4233.11. [80 FR 35229, June 19, 2015, as amended at 80 FR 79694, Dec. 23, 2015] § 4233.7 Actuarial and financial information. (a) Required information. (1) A copy of the plan's most recent actuarial report and copies of the actuarial reports for the two preceding plan years. (2) A copy of the plan actuary's most recent certification of critical and declining status, including a detailed description of the assumptions used in the certification, the basis for the projection of future contributions, withdrawal liability payments, investment return assumptions, and any other assumption that may have a material effect on projections. (3) A detailed statement of the basis for the conclusion that the plan will not remain solvent without a partition and, if applicable, suspension of benefits, including supporting data, calculations, assumptions, and a description of the methodology. Include as an exhibit annual cash flow projections for the plan without partition (or suspension, if applicable) through the projected date of insolvency. Annual cash flow projections must reflect the following information: (i) Market value of assets as of the beginning of the year. (ii) Contributions and withdrawal liability payments. (iii) Benefit payments organized by participant status (e.g., active, retiree, terminated vested, beneficiary). (iv) Administrative expenses. (v) Market value of assets at year end. (4) A long-term projection reflecting reduced benefit disbursements at the PBGC-guarantee level after insolvency, and a statement of the present value of all future financial assistance without a partition (using the interest and mortality assumptions applicable to the valuation of plans terminated by mass withdrawal as specified in § 4281.13 of this chapter and other reasonable actuarial assumptions, including retirement age, form of benefit payment, and administrative expenses, certified by an enrolled actuary). (5) A detailed statement of the basis for the conclusion that the original plan will remain solvent if the application for partition, and, if applicable, the application for suspension of benefits, is granted, including supporting data, calculations, assumptions, and a description of the methodology, which must be consistent with section 305(e)(9)(D)(iv) and the regulations thereunder (including any adjustment to the cash flows in the initial year to incorporate recent actual fund activity required to be included under that section). Annual cash flow projections for the original plan with partition (and suspension, if applicable) must be included as an exhibit and must reflect the following information: (i) Market value of assets as of the beginning of the year. (ii) Contributions and withdrawal liability payments. (iii) Benefit payments organized by participant status (e.g., active, retiree, terminated vested, beneficiary). (iv) Administrative expenses. (v) Market value of assets at year end. (6) If applicable, a copy of the plan actuary's certification under section 305(e)(9)(C)(i) of ERISA. (7) The plan's projected insolvency date with benefit suspension alone (if applicable), including supporting data. (8) A long-term projection reflecting benefit disbursements from the successor plan (organized by participant status (e.g., active, retiree, terminated vested, beneficiary)), and a statement of the present value of all future financial assistance to be paid as a result of a partition (using the interest and mortality assumptions applicable to the valuation of plans terminated by mass withdrawal as specified in § 4281.13 of this chapter and other reasonable actuarial assumptions, including retirement age, form of benefit payment, and administrative expenses, certified by an enrolled actuary). (9) A long-term projection of pre-partition benefit disbursements from the original plan reflecting reduced benefit disbursements at the PBGC-guarantee level beginning on the proposed effective date of the partition (using a closed group valuation and no accruals after the proposed effective date of partition, and organized separately by participant status groupings (e.g., active, retiree, terminated vested, beneficiary)). (10) A long-erm projection of pre-partition benefit disbursements from the original plan reflecting the maximum benefit suspensions permissible under section 305(e)(9) of ERISA beginning on the proposed effective date of the partition (using an open group valuation and organized separately by participant status groupings (e.g., active, retiree, terminated vested, beneficiary)). (b) Additional projections. (c) Actuarial calculations and assumptions General. (2) Assumptions. (3) Updates. [80 FR 35229, June 19, 2015, as amended at 80 FR 79694, Dec. 23, 2015] § 4233.8 Participant census data. An application for partition must include a copy of the census data used for the projections described in § 4233.7(a)(3) and (5), including: (a) Participant type (retiree, beneficiary, disabled, terminated vested, active, alternate payee). (b) Date of birth. (c) Gender. (d) Credited service for guarantee calculation ( i.e., (e) Vested accrued monthly benefit before benefit suspension under section 305(e)(9) of ERISA. (f) Vested accrued monthly benefit after benefit suspension under section 305(e)(9) of ERISA. (g) Monthly benefit guaranteed by PBGC (determined under the terms of the original plan without respect to benefit suspensions). (h) Benefit commencement date (for participants in pay status and others for which the reported benefit is not payable at Normal Retirement Date). (i) For each participant in pay status— (1) Form of payment, and (2) Data relevant to the form of payment, including: (i) For a joint and survivor benefit, the beneficiary's benefit amount (before and after suspension) and the beneficiary's date of birth; (ii) For a Social Security level income benefit, the date of any change in the benefit amount, and the benefit amount after such change; (iii) For a 5-year certain or 10-year certain benefit (or similar benefit), the relevant defined period. (iv) For a form of payment not otherwise described in this section, the data necessary for the valuation of the form of payment, including the benefit amount before and after suspension. (j) If an actuarial increase for postponed retirement applies or if the form of annuity is a Social Security level income option, the monthly vested benefit payable at normal retirement age in normal form of annuity. [80 FR 79694, Dec. 23, 2015] § 4233.9 Financial assistance information. (a) Required information. (b) Additional information. § 4233.10 Initial review. (a) Determination on completed application. (b) Incomplete application. (c) Complete application. i.e., (d) Special rule for coordinated applications for partition and benefit suspension. (e) Informal consultation. [80 FR 35229, June 19, 2015, as amended at 80 FR 79694, Dec. 23, 2015] § 4233.11 Notice of application for partition. (a) When to file. (b) Form of notice. (c) Information required. (1) Identifying information. (2) Relevant partition application dates. (3) Application for suspension of benefits. (4) Description of statutory partition provisions. (i) The interrelationship between the partition rules under section 4233 of ERISA and suspensions of benefits under section 305(e)(9) of ERISA (if applicable). (ii) The multiemployer guarantee under section 4022A of ERISA. (iii) The eligibility requirements for a partition under section 4233(b) of ERISA, including the Advocate consultation requirement. (5) Impact of partition on interested parties. (i) A statement describing the benefit payment obligations of the original plan and the successor plan. (ii) A statement explaining that the Board of Trustees of the original plan will also administer the successor plan, but the successor plan will be funded solely by PBGC financial assistance payments. (6) Partition application contents summary. (i) The plan's critical and declining status and projected insolvency date. (ii) A statement that the plan sponsor has taken (or is taking) all reasonable measures to avoid insolvency, including the maximum benefit suspensions under section 305(e)(9), if applicable. (iii) If known, a brief statement on the proposed total estimated amount and percentage of liabilities to be partitioned. (iv) If known, a brief statement summarizing the proposed class or classes of participants whose benefits would be partially or wholly transferred if the application for partition is granted, including a summary of the factors considered by the plan sponsor in preparing its application. (7) Contact information for plan sponsor. (8) Contact information for PBGC. [email protected]. (9) Contact information for Participant and Plan Sponsor Advocate. [email protected]. (d) Model notice. (e) Foreign languages. (1) Include a prominent legend in that common non-English language advising them how to obtain assistance in understanding the notice; or (2) Provide the notice in that common non-English language to those interested parties literate only in that language. [80 FR 35229, June 19, 2015, as amended at 87 FR 57825, Sept. 22, 2022] § 4233.12 PBGC action on application for partition. (a) Review period. (b) Determination on application. (c) Conditional determination on application. (d) Final agency action. et seq. [80 FR 35229, June 19, 2015, as amended at 80 FR 79695, Dec. 23, 2015] § 4233.13 Coordinated application process for partition and benefit suspension. (a) Interagency coordination. (1) If PBGC denies the application for partition, it will notify the plan sponsor in writing of PBGC's decision in accordance with § 4233.12(b), and will notify Treasury to allow it to take appropriate action on the benefit suspension application. (2) If PBGC grants a conditional approval of partition, it will notify the plan sponsor in writing of PBGC's decision in accordance with § 4233.12(c), and will provide Treasury with a copy of PBGC's decision along with PBGC's record of the decision. (3) If Treasury does not issue the final authorization to suspend, PBGC's conditional approval under § 4233.12(c) will be null and void. (4) If Treasury issues a final authorization to suspend, PBGC will issue a final partition order under § 4233.14 and section 4233(c) of ERISA. The effective date of a final partition order must satisfy the requirements of section 305(e)(9)(D)(v) of ERISA. (b) Combined notice. [80 FR 35229, June 19, 2015, as amended at 80 FR 79695, Dec. 23, 2015] § 4233.14 Partition order. (a) General provisions. (b) Terms and conditions. (1) The plan sponsors of the original plan and the successor plan must amend the original plan and successor plan, respectively, to reflect the benefits payable to participants and beneficiaries as a result of the partition order. (2) The plan sponsors of the original plan and successor plan must maintain a written record of the respective plans' compliance with the terms of the partition order, section 4233 of ERISA, and this part. § 4233.15 Nature and operation of successor plan. (a) Nature of plan. (b) Treatment of plan. (c) Administration of plan. § 4233.16 Coordination of benefits under original plan and successor plan. (a) Successor plan benefits. (b) Guarantee of successor plan benefit. (c) PBGC financial assistance. (d) Payment of monthly benefits. § 4233.17 Continuing jurisdiction. (a) PBGC will continue to have jurisdiction over the original plan and the successor plan to carry out the purposes, terms, and conditions of the partition order, section 4233 of ERISA, and this part. (b) PBGC may, upon providing notice to the plan sponsor, make changes to the partition order in response to changed circumstances consistent with section 4233 of ERISA and this part. Appendix A to Part 4233—Model Notices NOTICE OF APPLICATION FOR PARTITION FOR [INSERT PLAN NAME] [For plans filing an application for partition only] [Insert Date] This notice is to inform you that, on [ insert Date insert Plan Sponsor's Name insert Pension Fund name, Employer Identification Number, and three-digit Plan Number What is partition? A multiemployer plan that is in critical and declining status may apply to PBGC for an order that separates ( i.e., PBGC guarantees benefits up to a legal limit. However, if the PBGC-guaranteed amount payable by the successor plan is less than the benefit payable under the original plan, Federal law requires the original plan to pay the difference. Therefore, partition will not What are the rules for partition? Federal law permits, but does not require, PBGC to approve an application for partition. PBGC generally will make a decision on the application for partition within 270 days. A plan is eligible for partition if certain requirements are met, including: 1. The pension plan is in critical and declining status. A plan is in critical and declining status if it is in critical status (which generally means the plan's funded percentage is less than 65%) and is projected to run out of money within 15 years (or 20 years if there are twice as many inactive as active participants, or if the plan's funded percentage is less than 80%). 2. PBGC determines, after consulting with the PBGC Participant and Plan Sponsor Advocate, that the Board of Trustees has taken (or is taking) all reasonable measures to avoid insolvency. Reasonable measures may include contribution increases or reductions in the rate of benefit accruals. 3. PBGC determines that: (1) Providing financial assistance in a partition will be significantly less than providing financial assistance in the event the plan becomes insolvent; and (2) partition is necessary for the plan to remain solvent. 4. PBGC certifies to Congress that its ability to meet existing financial assistance obligations to other multiemployer plans (including plans that are insolvent or projected to become insolvent within 10 years) will not be impaired by the partition. 5. The cost of the partition is paid exclusively from PBGC's multiemployer insurance fund. Why is partition needed? The Plan is in critical and declining status, is [ insert funded percentage insert expected insolvency date [ Insert brief statement of the amount of liabilities the Board of Trustees proposes to partition and indicate whether it is the minimum amount needed for the Plan to remain solvent. If applicable, insert brief statement summarizing the proposed classes of participants and beneficiaries whose benefits will be partially or wholly transferred if the application is granted, and a summary of the factors considered. all What is PBGC's multiemployer plan guarantee? Federal law sets the maximum that PBGC may guarantee. For multiemployer plan benefits, PBGC guarantees a monthly benefit payment equal to 100 percent of the first $11 of the Plan's monthly benefit accrual rate, plus 75 percent of the next $33 of the accrual rate, times each year of credited service. The PBGC's maximum guarantee, therefore, is $35.75 per month times a participant's years of credited service. PBGC guarantees vested pension benefits payable at normal retirement age, early retirement benefits, and certain survivor benefits, if the participant met the eligibility requirements for a benefit before plan termination or insolvency. A benefit or benefit increase that has been in effect for less than 60 months is not eligible for PBGC's guarantee. PBGC also does not guarantee benefits above the normal retirement benefit, disability benefits not in pay status, or non-pension benefits, such as health insurance, life insurance, death benefits, vacation pay, or severance pay. How will I know when PBGC has made a decision on the application for partition? If PBGC approves the Board of Trustees' application for partition, PBGC will issue a notice to affected participants and beneficiaries whose benefits will be transferred to the successor plan no later than 14 days after it issues the order of partition. You may also visit www.pbgc.gov/MPRA Your Rights To Receive Information About Your Plan and its Benefits Your plan's Summary Plan Description (“SPD”) will include information on the procedures for claiming benefits, which will apply to both the original and successor plans until the Plan provides you a new SPD. You also have the legal right to request documents from the original plan to help you understand the partition and your rights such as: • The plan document, trust agreement, and other documents governing the Plan (e.g., collective bargaining agreements); • The latest SPD and summaries of material modification; • The Plan's Form 5500 annual reports, including audited financial statements, filed with the U.S. Department of Labor during the last six years; • The Plan's annual funding notices for the last six years; • Actuarial reports (including reports submitted in support of the application for partition) furnished to the Plan within the last six years; • The Plan's current rehabilitation plan, including contribution schedules; and • Any quarterly, semi-annual or annual financial reports prepared for the Plan by an investment manager, fiduciary or other advisor and furnished to the Plan within the last six years. If your benefits are transferred to the successor plan, you will be furnished a successor plan SPD within 120 days of the partition; and the plan document, trust agreement, and other documents governing the successor plan will be available for review following the partition. The plan administrator must respond to your request for these documents within 30 days, and may charge you the cost per page for the least expensive means of reproducing documents, but cannot charge more than 25 cents per page. The Plan's Form 5500 annual reports are also available free of charge at http://www.dol.gov/ebsa/5500main.html. Plan Contact Information For more information about this Notice, you may contact: [Insert Name of Plan Administrator, address, email address, and phone number] PBGC Contact Information Multiemployer Program Division, PBGC, 445 12th Street SW, Washington, DC 20024-2101 Email: [email protected] Phone: (202) 229-6047 PBGC Participant and Plan Sponsor Advocate Contact Information Constance Donovan, PBGC, 445 12th Street SW, Washington, DC 20024-2101 Email: [email protected] Phone: (202) 229-4448 NOTICE OF APPLICATION FOR PARTITION FOR [INSERT PLAN NAME] [For plans filing coordinated applications for partition and suspension of benefits] [Insert Date] This notice is to inform you that, on [ insert Date insert Plan Sponsor's Name insert Pension Fund name, Employer Identification Number, and three-digit Plan Number Insert statement that the plan sponsor has submitted an application for suspension of benefits under section 305(e)(9)(G) of ERISA, and identify how to obtain a copy of the application and notice required by section 305(e)(9)(F) of ERISA. What is partition? A multiemployer plan that is in critical and declining status may apply to PBGC for an order that separates ( i.e., PBGC guarantees benefits up to a legal limit. However, if the PBGC-guaranteed amount payable by the successor plan is less than the benefit payable under the original plan after taking into account benefit reductions or any plan amendments after the effective date of the partition, Federal law requires the original plan to pay the difference. Therefore, partition will not What are the rules for partition? Federal law permits, but does not require, PBGC to approve an application for partition. PBGC generally will make a decision on the application for partition within 270 days. A plan is eligible for partition if certain requirements are met, including: 1. The pension plan is in critical and declining status. A plan is in critical and declining status if it is in critical status (which generally means the plan's funded percentage is less than 65%) and is projected to run out of money within 15 years (or 20 years if there are at least twice as many inactive as active participants, or if the plan's funded percentage is less than 80%). 2. PBGC determines, after consulting with the PBGC Participant and Plan Sponsor Advocate, that the Board of Trustees has taken (or is taking) all reasonable measures to avoid insolvency, including reducing benefits to the maximum allowed under the law. 3. PBGC determines that: (1) Providing financial assistance in a partition will be significantly less than providing financial assistance in the event the plan becomes insolvent; and (2) partition is necessary for the plan to remain solvent. 4. PBGC certifies to Congress that its ability to meet existing financial assistance obligations to other multiemployer plans (including plans that are insolvent or projected to become insolvent within 10 years) will not be impaired by the partition. 5. The cost of the partition is paid exclusively from PBGC's multiemployer insurance fund. Why are partition and benefit reductions needed? The Plan is in critical and declining status, is [ insert funded percentage insert expected insolvency date [ Insert brief statement of the amount of liabilities the Board of Trustees proposes to partition and indicate whether it is the minimum amount needed for the Plan to remain solvent. If applicable, insert brief statement summarizing the proposed classes of participants and beneficiaries whose benefits will be partially or wholly transferred if the application is granted, and a summary of the factors considered. all What is PBGC's multiemployer plan guarantee? Federal law sets the maximum that PBGC may guarantee. For multiemployer plan benefits, PBGC guarantees a monthly benefit payment equal to 100 percent of the first $11 of the Plan's monthly benefit accrual rate, plus 75 percent of the next $33 of the accrual rate, times each year of credited service. PBGC's maximum guarantee, therefore, is $35.75 per month times a participant's years of credited service. PBGC guarantees vested pension benefits payable at normal retirement age, early retirement benefits, and certain survivor benefits, if the participant met the eligibility requirements for a benefit before plan termination or insolvency. A benefit or benefit increase that has been in effect for less than 60 months is not eligible for PBGC's guarantee. PBGC also does not guarantee benefits above the normal retirement benefit, disability benefits not in pay status, or non-pension benefits, such as health insurance, life insurance, death benefits, vacation pay, or severance pay. How will I know when PBGC has made a decision on the application for partition? If PBGC approves the Board of Trustees' application for partition, PBGC will issue a notice to affected participants and beneficiaries whose benefits will be transferred to the successor plan no later than 14 days after it issues the order of partition. You may also visit www.pbgc.gov/MPRA How do I obtain information on the application for approval to reduce benefits? The application for approval of the proposed reduction of benefits will be publicly available within 30 days after the Treasury Department receives the application. See www.treasury.gov Your Rights To Receive Information About Your Plan and its Benefits Your Plan's Summary Plan Description (“SPD”) will include information on the procedures for claiming benefits, which will apply to both the original and successor plans until the Plan provides you a new SPD. You also have the legal right to request documents from the original plan to help you understand the partition and your rights such as: • The plan document, trust agreement, and other documents governing the Plan (e.g., collective bargaining agreements); • The latest SPD and summaries of material modification; • The Plan's Form 5500 annual reports, including audited financial statements, filed with the U.S. Department of Labor during the last six years; • The Plan's annual funding notices for the last six years; • Actuarial reports (including reports submitted in support of the application for partition) furnished to the Plan within the last six years; • The Plan's current rehabilitation plan, including contribution schedules; and • Any quarterly, semi-annual or annual financial reports prepared for the Plan by an investment manager, fiduciary or other advisor and furnished to the Plan within the last six years. If your benefits are transferred to the successor plan, you will be furnished a successor plan SPD within 120 days of the partition; and the plan document, trust agreement, and other documents governing the successor plan will be available for review following the partition. The plan administrator must respond to your request for these documents within 30 days, and may charge you the cost per page for the least expensive means of reproducing documents, but cannot charge more than 25 cents per page. The Plan's Form 5500 annual reports are also available free of charge at http://www.dol.gov/ebsa/5500main.html. Plan Contact Information For more information about this Notice, you may contact: [Insert Name of Plan Administrator, address, email address, and phone number] PBGC Contact Information Multiemployer Program Division, PBGC, 445 12th Street SW, Washington, DC 20024-2101 Email: [email protected] Phone: (202) 229-6047 PBGC Participant and Plan Sponsor Advocate Contact Information Constance Donovan, PBGC, 445 12th Street SW, Washington, DC 20024-2101 Email: [email protected] Phone: (202) 229-4448 [80 FR 35229, June 19, 2015, as amended at 85 FR 6064, Feb. 4, 2020; 87 FR 57825, Sept. 22, 2022]