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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 93-1681

IN THE MATTER OF ESCO MANUFACTURING CO.,Debtor
PENSION BENEFIT GUARANTEE CORP.,
Appellee,
versus
GREGG PRITCHARD, TRUSTEE IN BANKRUPTCY
FOR ESCO MANUFACTURING CO.,
Appellant.

Appeal from the United States District Court
for the Northern District of Texas

ON PETITION FOR REHEARING
(Opinion September 29, 2994, 5th Circuit ______F.3d_________)
(April 5, 1995)
Before GOLDBERG1, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit
Judges.
PER CURIAM:
We withdraw our earlier opinion, reported at 33 F.3d 509 (5th
Cir. 1994), and substitute the following opinion.
I.
1 Judge Goldberg concurred in the above opinion before his
death on February 11, 1995.

The district court held that the trustee in bankruptcy was
obligated to terminate the debtor's pension plan in compliance with
ERISA's termination provision, 29 U.S.C. § 1341. It affirmed the
bankruptcy court's holding that plan assets are not assets of the
estate. It apparently ordered the trustee to proceed with
termination of the plan, regardless of whether the trustee was the
plan administrator. It remanded to the bankruptcy court for
further consistent proceedings. The trustee appealed.
II.
Under ERISA, "plan administrator" is a well-defined term for
the fiduciary charged with administering the plan. The
administrator is "the person specifically so designated by the
terms of the" plan. 29 U.S.C. § 1002(16)(A)(i). The statute
distinguishes between plan sponsors and plan administrators,
providing that the plan sponsor becomes the plan administrator only
if the plan does not designate an administrator. Id.
§ 1002(16)(A)(ii). "Plan sponsor" is a separate defined term for
the employer who sets up an employee benefit plan. Id.
§ 1002(16)(B). The terms of Esco's plan set up a committee as plan
administrator, three of whose members were to be appointed by Esco
and three of whom were to be appointed by a union. The evidence in
the record shows that officers of Esco and the union fulfilled
their roles as members of the committee. There is no contrary
evidence, nor any evidence that the administrative committee did
not exist at the time of the district court's ruling.
2

III.
Section 1341 allows for termination of an ERISA plan only by
the plan administrator or the PBGC and states that a single-
employer plan may be terminated only in accordance with that
section. Congress intended this mechanism to "provide the sole and
exclusive means under which a qualified pension plan may be
terminated." H.R. Rep. No. 300, 99th Cong., 2d Sess. 289 (1985),
reprinted in 1986 U.S.C.C.A.N. 756, 940. As the Third Circuit has
recognized, "ERISA authorizes the plan administrator to terminate
a plan," even if there is "an inconsistent plan provision to the
contrary." Delgrosso v. Spang & Co., 769 F.2d 928, 938 n.12 (3d
Cir. 1985), cert. denied, 476 U.S. 1140 (1986). Esco could decline
to participate further in a plan, but this would neither end its
liability nor work a statutory termination, because § 1341 vests
the power to terminate in an extant administrator, and Esco was not
the administrator but was plan sponsor. This is true
notwithstanding Article XII of the Plan, which purported to give
Esco that power. In short, Esco never had the power to terminate.
The trustee did not succeed to that power. The district court
erred on these facts in holding that the trustee had the power to
terminate the plan and erred in directing him to do so. REVERSED.
3