separate line of business
(26) Additional participation requirements.— (A) In general .— In the case of a trust which is a part of a defined benefit plan, such trust shall not constitute a qualified trust under this subsection unless on each day of the plan year such trust benefits at least the lesser of— (i) 50 employees of the employer, or (ii) the greater of— (I) 40 percent of all employees of the employer, or (II) 2 employees (or if there is only 1 employee, such employee). (B) Treatment of excludable employees.— (i) In general .— A plan may exclude from consideration under this paragraph employees described in paragraphs (3) and (4)(A) of section 410(b). (ii) Separate application for certain excludable employees .— If employees described in section 410(b)(4)(B) are covered under a plan which meets the requirements of subparagraph (A) separately with respect to such employees, such employees may be excluded from consideration in determining whether any plan of the employer meets such requirements if— (I) the benefits for such employees are provided under the same plan as benefits for other employees, (II) the benefits provided to such employees are not greater than comparable benefits provided to other employees under the plan, and (III) no highly compensated employee (within the meaning of section 414(q) ) is included in the group of such employees for more than 1 year. (C) Special rule for collective bargaining units .— Except to the extent provided in regulations, a plan covering only employees described in section 410(b)(3)(A) may exclude from consideration any employees who are not included in the unit or units in which the covered employees are included. (D) Paragraph not to apply to multiemployer plans .— Except to the extent provided in regulations, this paragraph shall not apply to employees in a multiemployer plan (within the meaning of section 414(f) ) who are covered by collective bargaining agreements. (E) Special rule for certain dispositions or acquisitions .— Rules similar to the rules of section 410(b)(6)(C) shall apply for purposes of this paragraph. (F) Separate lines of business .— At the election of the employer and with the consent of the Secretary, this paragraph may be applied separately with respect to each separate line of business of the employer. For purposes of this paragraph, the term “separate line of business” has the meaning given such term by section 414(r) (without regard to paragraph (2)(A) or (7) thereof). (G) Exception for governmental plans .— This paragraph shall not apply to a governmental plan (within the meaning of section 414(d) ). (H) Regulations .— The Secretary may by regulation provide that any separate benefit structure, any separate trust, or any other separate arrangement is to be treated as a separate plan for purposes of applying this paragraph. (I) Protected participants.— (i) In general .— A plan shall be deemed to satisfy the requirements of subparagraph (A) if— (I) the plan is amended— (aa) to cease all benefit accruals, or (bb) to provide future benefit accruals only to a closed class of participants, (II) the plan satisfies subparagraph (A) (without regard to this subparagraph) as of the effective date of the amendment, and (III) the amendment was adopted before April 5, 2017 , or the plan is described in clause (ii). (ii) Plans described .— A plan is described in this clause if the plan would be described in subsection (o)(1)(C), as applied for purposes of subsection (o)(1)(B)(iii)(IV) and by treating the effective date of the amendment as the date the class was closed for purposes of subsection (o)(1)(C). (iii) Special rules .— For purposes of clause (i)(II), in applying section 410(b)(6)(C), the amendments described in clause (i) shall not be treated as a significant change in coverage under section 410(b)(6)(C)(i)(II). (iv) Spun-off plans .— For purposes of this subparagraph, if a portion of a plan described in clause (i) is spun off to another employer, the treatment under clause (i) of the spun-off plan shall continue with respect to the other employer.