Page:United States Statutes at Large Volume 103 Part 3.djvu/55

 PUBLIC LAW 101-239—DEC. 19, 1989 103 STAT. 2123 awards under subparts 1 and 2 of part A and parts B, C, and E of this title.". Subtitle B—Fiduciary Responsibilities SEC. 2101. CIVIL PENALTIES ON VIOLATIONS BY FIDUCIARIES. (a) IN GENERAL.—Section 502 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1132) is amended by adding at the end thereof the following new subsection: "aXD In the case of— "(A) any breach of fiduciary responsibility under (or other violation of) part 4 by afiduciary,or "(B) any knowing participation in such a breach or violation by any other person, the Secretary shall assess a civil penalty against such fiduciary or other person in an amount equal to 20 percent of the applicable recovery amount. "(2) For purposes of paragraph (1), the term 'applicable recovery amount' means any amount which is recovered from a fiduciary or other person with respect to a breach or violation described in paragraph (1)— "(A) pursuant to any settlement agreement with the Sec- retary, or "(B) ordered by a court to be paid by such fiduciary or other person to a plan or its participants and beneficiaries in a judicial proceeding instituted by the Secretary under subsection (a)(2)or(a)(5). "(3) The Secretary may, in the Secretary's sole discretion, waive or reduce the penalty under paragraph (1) if the Secretary determines in writing that— "(A) the fiduciary or other person acted reasonably and in good faith, or "(B) it is reasonable to expect that the fiduciary or other person will not be able to restore all losses to the plan without severe financial hardship unless such waiver or reduction is granted. "(4) The penalty imposed on afiduciaryor other person under this subsection with respect to any transaction shall be reduced by the amount of any penalty or tax imposed on such fiduciary or other person with respect to such transaction under subsection (i) of this section and section 4975 of the Internal Revenue Code of 1986.". (b) CONFORMING AMENDMENT.—Section 502(a)(6) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1132(a)(6)) is amended by inserting "or G)" after "subsection (i)". (c) EFFECTIVE DATE. —The amendments made by this section shall 29 USC 1132 apply to any breach of fiduciary responsibility or other violation °°**- occurring on or after the date of the enactment of this Act.

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