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TITLE 26-INTERNAL REVENUE CODE ed to qualify under section 401(a) which bene- fits either- (A) 70 percent or more of all employees, or 80 percent or more of all the employees who are eligible to benefit under the plan if 70 percent or more of all the employees are eligible to benefit under the plan, excluding in each case employees who have not satis- fied the minimum age and service require- ments, if any, prescribed by the plan as a condition of participation, or (B) such employees as qualify under a classification set up by the employer and found by the Secretary not to be discrimi- natory in favor of employees who are offi- cers, shareholders, or highly compensated. (2) Exclusion of certain employees For purposes of paragraph (1), there shall be excluded from consideration- (A) employees not included in the plan who are included in a unit of employees cov- ered by an agreement which the Secretary of Labor finds to be a collective bargaining agreement between employee representa- tives and one or more employers, if there is evidence that retirement benefits were the subject of good faith bargaining between such employee representatives and such employer or employers. (B) in the case of a trust established or maintained pursuant to an agreement which the Secretary of Labor finds to be a collective bargaining agreement between air pilots represented in accordance with title II of the Railway Labor Act and one or more employers, all employees not covered by such agreement, and (C) employees who are nonresident aliens and who receive no earned income (within the meaning of section 911(b)) from the em- ployer which constitutes income from sources within the United States (within the meaning of section 861(a)(3)). Subparagraph (B) shall not apply in the case of a plan which provides contributions or benefits for employees whose principal duties are not customarily performed aboard air- craft in flight. (c) Application of participation standards to certain plans (1) The provisions of this section (other than paragraph (2) of this subsection) shall not apply to- (A) a governmental plan (within the meaning of section 414(d)), (B) a church plan (within the meaning of section 414(e)) with respect to which the election provided by subsection (d) of this section has not been made, (C) a plan which has not at any time after September 2, 1974, provided for employer contributions, and (D) a plan established and maintained by a society, order, or association described in section 501(c)(8) or (9) if no part of the con- tributions to or under such plan are made by employers of participants in such plan. (2) A plan described in paragraph (1) shall be treated as meeting the requirements of this section, for purposes of section 401(a), if such plan meets the requirements of section 401(a)(3) as in effect on September 1, 1974. (d) Election by church to have participation, vesting, funding, etc., provisions apply (1) In general If the church or convention or association of churches which maintains any church plan makes an election under this subsection (in such form and manner as the Secretary may by regulations prescribe), then the provisions of this title relating to participation, vesting, funding, etc. (as in effect from time to time) shall apply to such church plan as if such provisions did not contain an exclusion for church plans. (2) Election irrevocable An election under this subsection with re- spect to any church plan shall be binding with respect to such plan, and, once made, shall be irrevocable. (Added Pub. L. 93-406, title II, § 1011, Sept. 2, 1974, 88 Stat. 898, and amended Pub. L. 94-455, title XIX, §§ 1901(a)(61), 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1774, 1834.) REFERENCES IN TEXT The Railway Labor Act, referred to in subsec. (b)(2)(B), is act May 20, 1926, ch. 347, 44 Stat. 577, as amended. Title II of the Railway Labor Act was added by act Apr. 10, 1936, ch. 166, 49 Stat. 1189, and is clas- sified generally to subchapter II (§ 181 et seq.) of Title 45, Railroads. For complete classification of this Act to the Code, see section 151 of Title 45 and Tables volume. AMENDMENTS 1976-Subsec. (a)(2)(A)(ii). Pub. L. 94-455, § 1906(b)(13)(A), struck out "or his delegate" following "Secretary". Subsec. (a)(5)(C), (D). Pub. L. 94-455, § 1901(a)(61)(A), substituted "purposes of paragraph (1)" for "purposes of subsection (a)(1)". Subsec. (b)(1)(B). Pub. L. 94-455, § 1906(b)(13)(A), struck out "or his delegate" following "Secretary". Subsec. (c)(1)(C). Pub. L. 94-455, § 1901(a)(61)(B), substituted "September 2, 1974," for "the date of the enactment of the Employee Retirement Income Secu- rity Act of 1974". Subsec. (c)(2). Pub. L. 94-455, § 1901(a)(61)(C), sub- stituted "September 1, 1974" for "the day before the date of the enactment of this section". Subsec. (d)(1). Pub. L. 94-455, ! 1906(b)(13)(A), struck out "or his delegate" following "Secretary". EFFECTIVE DATE OF 1976 AMENDMENT Amendment of subsecs. (a) to (c) by section 1901(a)(61) of Pub. L. 94-455 effective for taxable years beginning after Dec. 31, 1976, see section 1901(d) of Pub. L. 94-455, set out as an Effective Date of 1976 Amendment note under section 2 of this title. EFFECTIVE DATE; TRANSITIONAL RULES Section 1017 of Pub. L. 93-408, as amended by Pub. L. 94-12, title IV, § 402, Mar. 29, 1975, 89 Stat. 47, pro- vided that: "(a) General Rule.-Except as otherwise provided in this section, the amendments made by this part [con- sisting of sections 1011 to 1017 of Pub. L. 93-406, which enacted sections 410, 411, 412, 413, 414, and 4971 of this title, amended sections 275, .01(a)(3), (5), (7), 404(a)(1), (2), (6). (7). 406, 407, 805, 6161, 6201, 6204, 6211, 6212, 6213, 6214, 6344, 6501, 6503, 6512, 6601, 6653, 6659, 6676. 6677, 6679, 6682, 6688, 6861, 6862, and 7422 of this title, and enacted provisions set out as notes under sections 410, 411 and 412 of this title] Page 323 § 410